                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                          Submitted on Briefs February 14, 2006

            CHARLES C. WILEY v. CLARENCE WILLIAMS, ET AL.

                      Appeal from the Chancery Court for Sevier County
                      No. 05-6-221   Telford E. Forgety, Jr., Chancellor



                   No. E2005-02518-COA-R3-CV - FILED APRIL 10, 2006


The issues presented in this appeal are whether the trial court erred in dismissing the Plaintiff’s
complaint based on the doctrine of prior suit pending, and its determination that the Chancery Court
lacked jurisdiction to hear a claim for unliquidated damages for personal injuries. We hold that the
doctrine of prior suit pending is not applicable in this case, because Plaintiff’s claims in this case
involve neither the same parties nor subject matter identical to that in the prior lawsuit filed in
Probate Court, and because the Probate Court would not have had jurisdiction over Plaintiff’s claims
filed in Chancery Court, had they been raised there. We further hold that, pursuant to the Supreme
Court’s decision in Flowers v. Dyer County, 830 S.W.2d 51 (Tenn. 1992) and its progeny, the
Chancery Court erred in dismissing Plaintiff’s claim for unliquidated damages for personal injuries,
and we instruct the Chancery Court to transfer this claim to Circuit Court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated; Case
                                        Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J.,
and CHARLES D. SUSANO , JR., J., joined.

Charles C. Wiley, Mountain City, Tennessee, pro se Appellant.

Devin J. Koester, Sevierville, Tennessee, for the Appellees, Clarence Williams, Grover C. Williams
and Annette Williams.

                                             OPINION

                             I. Factual and Procedural Background

       Opal Williams, the mother of Plaintiff Charles C. Wiley, died on March 5, 2005. Mrs.
Williams left a Last Will and Testament which was admitted to probate by order entered on April
14, 2005, in the Probate Court for Sevier County. The will provided, inter alia, that Mary Ruth
Musick, her niece, would receive her automobile, and “any remaining cash assets from stocks and
money, after my debts have been paid and after the $5,000.00 bequest to Charles C. Wiley. . .” The
will further bequeathed and devised all the “rest, residue and remainder of my property both real and
personal and wherever situated, including but not limited to the land, residence and contents therein,
at 2202 Shinbone Road. . .and [$5,000.00] cash. . .to my son, Charles C. Wiley.” Mrs. Williams left
nothing to her husband, Grover C. Williams. On June 10, 2005, Mr. Wiley brought this pro se
action in Sevier County Chancery Court against Grover C. Williams (Mr. Wiley’s father),1 Clarence
Williams (Grover C. Williams’ son), and Annette Williams (Clarence Williams’ wife). Mr. Wiley’s
complaint stated as follows in relevant part:

                   Plaintiff avers Claim Number 2 as follows:2
                            That the herein defendants. . .have maliciously, knowingly,
                   and unlawfully been destroying Plaintiff’s house, land and contents
                   therein upon and situated at 2202 Shin-Bone Road, Sevierville,
                   Tennessee, of which by [sic] (Exhibit A) a copy herein enclosed
                   shows that plaintiff, Charles C. Wiley has become owner of said
                   property by lawful and just means of his Mother’s Last Will &
                   Testament, which Opal Williams was sole owner of said property.
                                      *              *                *
                   Plaintiff avers Claim Number 3 as follows:
                            That Clarence Williams, defendant did unlawfully take, steal
                   and dispose of $8,000.00 cash, between February 2005 and March
                   2005, while visiting Opal Williams, Mother of Plaintiff.
                            The $8,000.00 belonged to Plaintiff and Plaintiff’s Mother
                   had said money hidden in her bedroom drawer, safekeeping for
                   Plaintiff until his release from prison this year.
                                      *              *                *
                   Plaintiff avers Claim [Number] 4 as follows:
                            [T]hat defendants Clarence Williams, Grover Williams, and
                   Anette [sic] Williams did maliciously, unlawfully and knowingly,
                   steal, sell and dispose of Plaintiff’s special items being:
                   1) Double deck boxes of Snap-On and Craftsman tools valued at
                   $40,000.00;
                   2) thirty-eight (38) pairs of Seige-Field jeans valued at $1,520.00;
                   3) Thirty-four (34) shirts, flannel, dress, casual, valued at $272.00;
                   4) Thirty-four Arts & Crafts items, ranging from wooden pirate ships
                   to 3-D Wall pictures to jewelry boxes, etc., all valued at $2,500.00.
                                       *              *                *

         1
         Mr. W iley refers to M r. W illiams as his father throughout the pleadings in the record. It is not completely clear
whether M r. W illiams is Mr. W iley’s biological father; but the answer to that question is not particularly pertinent to this
appeal.

         2
          Mr. W iley subsequently voluntarily agreed to dismissal of his Claim Number 1, and so the allegations of that
claim are not at issue in this appeal.

                                                             -2-
               Plaintiff avers Claim Number 5 as follows:
                       That defendant, Clarence Williams did maliciously,
               unlawfully, intentionally, and knowingly commit the sin and crime of
               Rape upon my seventy year old mother, Opal Williams by evidence
               of [a] letter she wrote Plaintiff telling him what Clarence Williams
               did to her, asking Plaintiff not to tell anybody because she would soon
               be deceased and it would save family embarrassment.
                       Rape occurred in September, 2004, time and exact day to be
               shown later. This burden laid upon the mind of Plaintiff while
               incarcerated, has taken it’s [sic] mental toll on Plaintiff, causing
               severe mental stress, and anguish, mental pain and suffering, causing
               Plaintiff to take psychotic medication for the rest of his life to be able
               to deal with reality one day at a time.
                                  *                *              *
               Plaintiff avers Claim [Number] 6 as follows:
                       . . .[D]efendant[s] Clarence Williams and Anette Williams,
               unlawfully, took over Plaintiff’s property & house, with out any rental
               agreement contract or anything. Plaintiff Wiley sues defendants
               Clarence Williams and Anette Williams for rent payments in the
               amount of $2,500.00 for the time period they have unlawfully lived
               there without consent.

       The Defendants filed a motion to dismiss, arguing that the doctrine of prior suit pending
mandated dismissal. Defendants further argued that under T.C.A. § 16-11-102, the Chancery Court
lacked jurisdiction to hear Mr. Wiley’s Claim Number 5, because it was a claim for unliquidated
damages resulting from alleged personal injuries.

        Mr. Wiley filed a response to Defendants’ motion, arguing, among other things, that several
of his claims involved allegations of conversion of his own personal property, that were unrelated
to his mother’s estate and thus not at issue in the probate case. The Chancellor entered an order
dismissing the lawsuit on October 7, 2005, stating only that “the Motion to Dismiss is well taken and
this cause is hereby dismissed.”
                                        II. Issues Presented

       Mr. Wiley appeals, raising the following issues, as restated:

        1. Whether the trial court erred in dismissing Mr. Wiley’s action pursuant to the doctrine of
prior suit pending.

        2. Whether the trial court erred in dismissing Mr. Wiley’s claim for unliquidated damages
for personal injuries pursuant to T.C.A. § 16-11-102.




                                                  -3-
                                      III. Standard of Review

        In support of their motion to dismiss, Defendants filed copies of pleadings filed in Probate
Court, the deed for the purchase of the marital residence of Opal and Grover Williams, and an
affidavit of the Sevier County Register of Deeds. Because these are matters outside the pleadings
that were considered by the trial court, we must treat the motion to dismiss as one filed pursuant to
Tenn. R. Civ. P. 56, i.e., as a motion for summary judgment. See Tenn. R. Civ. P. 12.02 ("If, ...,
matters outside the pleadings are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56."); Hart v. Joseph
Decosimo and Co., LLP, 145 S.W.3d 67, 71 (Tenn. Ct. App. 2004).

         To be entitled to a summary judgment, the moving party must demonstrate that no genuine
issues of material fact exist, and that he or she is entitled to judgment as a matter of law. See Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d at 210; Planet Rock, Inc. v. Regis Ins. Co., 6 S.W.3d 484,
490 (Tenn. Ct. App. 1999). A summary judgment should not be granted, however, when a genuine
dispute exists with regard to any material fact. Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 97
(Tenn. 1999); Hogins v. Ross, 988 S.W.2d 685, 689 (Tenn. Ct. App. 1998). Our task on appeal is
to review the record to determine whether the requirements for granting summary judgment have
been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Aghili v. Saadatnejadi, 958
S.W.2d 784, 787 (Tenn. Ct. App. 1997). Tenn. R. Civ. P. 56.04 provides that summary judgment
is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the
claim or defense contained in the motion, see Byrd v. Hall, 847 S.W.2d at 210; and (2) the moving
party is entitled to a judgment as a matter of law on the undisputed facts. See Anderson v. Standard
Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). A party seeking a summary judgment must
demonstrate the absence of any genuine and material factual issues. Byrd v. Hall, 847 S.W.2d at
214.

        When the party seeking summary judgment makes a properly supported motion, the burden
shifts to the non-moving party to set forth specific facts establishing the existence of disputed,
material facts which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at 215;
Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). The non-moving party may not simply rest
upon the pleadings, but must offer proof by affidavits or other discovery materials (depositions,
answers to interrogatories, and admissions on file) provided by Rule 56.06 showing that there is a
genuine issue for trial. If the non-moving party does not so respond, then summary judgment, if
appropriate, shall be entered against the non-moving party. Tenn. R. Civ. P. 56.06.

        Summary judgments do not enjoy a presumption of correctness on appeal. See Nelson v.
Martin, 958 S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. Bedford County, 938 S.W.2d 408,
412 (Tenn. 1997). Accordingly, when we review a summary judgment, we view all the evidence in
the light most favorable to the non-movant, and we resolve all factual inferences in the non-movant's
favor. See Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox County Bd. of


                                                 -4-
Educ., 2 S.W.3d 927, 929 (Tenn. 1999). A summary judgment will be upheld only when the
undisputed facts reasonably support one conclusion - that the moving party is entitled to a judgment
as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder,
913 S.W.2d 150, 153 (Tenn. 1995). We will affirm a summary judgment on different grounds than
those relied on by the trial court upon our determination that the trial court reached the correct result.
Clark v. Metropolitan Government of Nashville and Davidson County, 827 S.W.2d 312 (Tenn. Ct.
App. 1991).

                                                   IV. Analysis

                                       A. Prior Suit Pending Doctrine

        The issue of the applicability of the prior suit pending doctrine is a question of law. Our
review, therefore, is de novo on the record, with no presumption of correctness regarding the trial
court’s judgment. Fidelity & Guaranty Life Ins. Co. v. Corley, 2003 WL 23099685 at *3; 2003
Tenn.App. LEXIS 940, C/A No. W2002-02633-COA-R9-CV (Tenn. App. W.S., filed Dec. 31,
2003); Taylor v. Transmission Corp. of America, Inc, C/A No. E2003-02529-COA-R3-CV, 2004
WL 2853300 at *2, 2004 Tenn. App. LEXIS 831 at *4 (Tenn. App. E.S., filed Dec. 13, 2004).

        Under the prior suit pending doctrine, “where two courts have concurrent jurisdiction over
a matter, the court first taking jurisdiction acquires exclusive jurisdiction over the matter, and the
subsequent action must be dismissed.” Id.; accord Kizer v. Bellar, 241 S.W.2d 561, 563
(Tenn.1951). To obtain a dismissal of a subsequent action under the doctrine of prior suit pending,
the two suits must 1) involve the identical subject matter; 2) be between the same parties; and 3) the
former suit must be pending in a court in this state having jurisdiction of the subject matter and the
parties. Cockburn v. Howard Johnson, Inc., 385 S.W.2d 101, 102 (Tenn. 1964).

        In the present case, we are of the opinion that a close analysis of the issues and claims
presented yields the conclusion that the two lawsuits involve neither identical parties nor identical
subject matter. The case pending in Probate Court is an in rem proceeding and involves solely the
estate of Opal Williams. The parties to the Chancery Court proceeding are Mr. Wiley, Grover
Williams, Clarence Williams and Annette Williams. Annette Williams is a beneficiary of the will,3
but is not a party to the probate proceedings. Mr. Wiley has involved himself in the probate
proceedings by filing a pleading styled “Notice of Contest and Petition for Collection of Debt” in
the Probate Court. Clarence Williams filed in Probate Court, as next friend and on behalf of Grover
Williams, a “petition for elective share, year’s support and exempt property,” alleging that Grover
Williams was then 92 years old and suffering from advanced Alzheimer’s Disease. But it is apparent
from the Probate Court pleadings filed in this record that Clarence Williams is not a party to the
probate proceedings in his own right, only on behalf of his father, Grover Williams.



         3
          Opal W illiams’ will leaves one item of personal property to Annette W illiams, namely, “the Vern Hippensteal
painting of the Old Log Cabin.”

                                                         -5-
        Thus, the present case filed in Chancery Court does not involve the identical parties as are
involved in the Probate Court action. More importantly, we find that Mr. Wiley’s complaint in this
case alleges claims over which the Probate Court does not have jurisdiction. Mr. Wiley’s Claims
Number 3 and 4, quoted in Section I above, are essentially claims of conversion of his own personal
property, not assets of Opal Williams’ estate. His claim against Clarence Williams for $8,000
involves the allegation that Mr. Williams took his money from Opal Williams’ residence while she
was still alive. Likewise, Mr. Wiley has stated a claim for conversion of items of his own personal
property, such as tools and clothing, that were stored at Opal Williams’ house while he was
incarcerated. The Probate Court does not have jurisdiction to determine claims involving property
not part of the decedent’s estate. Viewing all the evidence in the light most favorable to the non-
movant, and resolving all factual inferences in the non-movant's favor, we hold that Mr. Wiley’s
claims regarding his alleged personal property should not have been summarily dismissed.

        Mr. Wiley’s Claims Number 2 and 6 quoted above are essentially for damages due to the
Defendants’ alleged destruction and occupation of the house and property at 2202 Shinbone Road
in Sevierville. The ownership of the subject matter of these claims, as property of the estate, is
precisely at issue before the Probate Court. It does not necessarily follow, however, that Mr. Wiley’s
claims in this lawsuit should be summarily dismissed under the prior suit pending doctrine, because
while they are dependant upon the outcome of the Probate Court’s determination of ownership of
the property, they are not identical claims to those presented in Probate Court. In fact, because they
essentially sound in tort and are not claims against the estate, but rather against third parties, it is
doubtful that the Probate Court has jurisdiction to hear them. See T.C.A. §§ 16-16-107; 16-16-
201(a); 1-3-105(23); 32-3-109; 32-4-109; Herring v. Tollett, 550 S.W.2d 660, 662 (Tenn. 1977);
Collins v. Ruffner, 206 S.W.2d 298, 301 (Tenn. 1947); Darby v. Union Planters Nat’l Bank of
Memphis,436 S.W.2d 439, 441 (Tenn. 1969); Monteverde v. Christie, 134 S.W.2d 905, 910 (Tenn.
Ct. App. 1939).

        In other words, Mr. Wiley’s claims for damages resulting from the allegation that the
Defendants have “maliciously, knowingly, and unlawfully been destroying Plaintiff’s house, land
and contents therein upon and situated at 2202 Shin-Bone Road, Sevierville, Tennessee” are
contingent upon the Probate Court ruling that the house and property at issue are actually Mr.
Wiley’s property. Even if the Probate Court makes such a determination, however, that court would
not have jurisdiction to then award Mr. Wiley damages for a tort claim against a defendant not even
before the court resulting from his alleged destruction and unlawful occupation of the property. The
prior suit pending doctrine thus does not apply to Mr. Wiley’s claims in this case.

        We are of the opinion that the trial court should hold in abeyance its determination of these
claims, until the Probate Court has made an adjudication of the ownership of the property of the
estate at issue. If the Probate Court determines that Mr. Wiley is not the owner of the property at
issue, then the time will be ripe for summary judgment in Defendants’ favor. If, however, the
Probate Court rules that Mr. Wiley owns the property, then our declination to apply the prior suit
pending doctrine at this juncture will afford him his “day in court” and the opportunity to have his
claims heard.


                                                  -6-
                    B. Claim for Unliquidated Damages for Personal Injury

       The trial court ruled that it lacked jurisdiction to hear Mr. Wiley’s Claim Number 5 for his
alleged injuries resulting from the alleged rape of his mother by Clarence Williams, pursuant to
T.C.A. § 16-11-102, which provides:


               (a) The chancery court has concurrent jurisdiction, with the circuit
               court, of all civil causes of action, triable in the circuit court, except
               for unliquidated damages for injuries to person or character, and
               except for unliquidated damages for injuries to property not resulting
               from a breach of oral or written contract; and no demurrer for want of
               jurisdiction of the cause of action shall be sustained in the chancery
               court, except in the cases excepted.

               (b) Any suit in the nature of the cases excepted above brought in the
               chancery court, where objection has not been taken by a plea to the
               jurisdiction, may be transferred to the circuit court of the county, or
               heard and determined by the chancery court upon the principles of a
               court of law.


[Emphasis added].


        We agree with the Chancery Court that this claim is one for unliquidated damages for an
alleged personal injury, and therefore it did not have jurisdiction. However, in the case of Flowers
v. Dyer County, the Supreme Court, presented with a GTLA claim filed in Chancery Court, ruled that
“[i]mplicit in the provisions of T.C.A. § 16-11-102 is the positive inference that, where a
jurisdictional objection has been made, such a transfer [from Chancery to Circuit Court] is
mandated.” Flowers, 830 S.W.2d 51, 53 (Tenn. 1992); accord Norton v. Everhart, 895 S.W.2d 317,
320 (Tenn. 1995); Woods v. MTC Management, 967 S.W.2d 800, 802 (Tenn. 1998). The Defendants
raised a jurisdictional objection to Mr. Wiley’s Claim Number 5, but not as to any other of his
claims. We hold that under Flowers and its progeny, the Chancery Court should not have summarily
dismissed Mr. Wiley’s claim, but was required to transfer it to Circuit Court instead. In so ruling,
we express no opinion as to the merits of this claim, nor as to the merits of any of Mr. Wiley’s other
claims.



                                                  -7-
                                          V. Conclusion


        For the aforementioned reasons, the judgment of the Chancery Court is vacated, and the case
remanded for a hearing of Mr. Wiley’s Claims Number 3 and 4. The Chancery Court shall hold in
abeyance Mr. Wiley’s Claims Number 2 and 6, pending the Probate Court’s ruling as to ownership
of the property at issue in those claims. The Chancery Court shall transfer Mr. Wiley’s Claim
Number 5 to Sevier County Circuit Court. Costs on appeal are assessed to the Appellees, Clarence
Williams, Grover Williams and Annette Williams.




                                             ________________________________________
                                             SHARON G. LEE, JUDGE




                                                -8-
