                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                           May 14, 2013 Session

             ANTHONY OVERTON ET AL. v. HILDA GAY LOWE ET AL.

                          Appeal from the Circuit Court for Scott County
                              No. 5237     John D. McAfee, Judge


                    No. E2012-02230-COA-R3-CV-FILED-AUGUST 26, 2013


This litigation arose out of a family dispute regarding the ownership of a farm of
approximately1 300 acres. In 1985, Mr. and Mrs. Arlie Overton, who will be referred to
collectively as “the parents,” conveyed their interest in the property to their five adult
children. The complaint in this case alleges that, at the time of the conveyance, the parents
and the children agreed that the children would transfer the property back to the parents upon
their request. In 1986, three of the children conveyed their interest in the property to the
other two children. In 1999, Novella Overton (“ Mother”) asked the two defendant daughters
to transfer the property back. The daughters refused. The parents and the three grantors of
the 1986 deed brought suit against the two daughters and a son-in-law, alleging breach of the
oral agreement to reconvey. At the close of the plaintiffs’ proof during a jury trial, the court
granted the defendants’ motion for a directed verdict as to all claims. We hold that there was
material evidence before the jury supporting the claim that there was an oral agreement to
transfer the property back to the parents. We further hold that the trial court erred in
concluding, as a matter of law, that the 1986 conveyance in some way terminated the oral
agreement and extinguished the parents’ claim.2 Accordingly, we vacate the directed verdict
as to the claim of Anthony Overton, Executor of the Estate of Mother.3 As to the directed
verdict with respect to the claims of the plaintiffs Shairon Fay Howard, Derita Kay


        1
         In 1983, the Overtons conveyed 1.5 acres to their daughter Hilda Gay Lowe and her husband Audie
Dean Lowe. This conveyance is not at issue in this litigation. It appears that the remaining 298.5 acres,
including the 25 acres conveyed to Dennis Overton in 1984, are what is at stake in the present case.
        2
          The defendants argue that the plaintiffs waived this issue because their initial challenge on appeal
to the trial court’s grant of a directed verdict does not specifically refer to the 1986 conveyance. On this
appeal, the plaintiffs presented and argued by way of an issue that the trial court erred in granting the
defendants a directed verdict. The matter of the 1986 conveyance was discussed in the parties’ briefs.
Accordingly, we find no waiver.
        3
            Arlie Overton died before the first trial and his wife died before the second trial.
McCulloch, and Arlie Dennis Overton, we affirm the trial court’s judgment. This case is
remanded for further proceedings as to the complaint of the Executor of Mother’s estate.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
              Vacated in Part and Affirmed in Part; Case Remanded

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellants, Anthony Overton, Executor
of the Estate of Novella Overton, Shairon Fay Howard, Derita Kay McCulloch, and Arlie
Dennis Overton.

Stephen A. Marcum, Huntsville, Tennessee, for the appellees, Audie Dean Lowe,
individually and as next of kin for Hilda Gay Lowe, and Shielda May Mills.

                                        OPINION

                                             I.

       In the mid-1980s, Arlie Overton (“Father”) and his wife owned approximately 300
acres with improvements (“the property”) in Scott County. In 1984, the Overtons deeded 25
acres of the property to their son, Arlie Dennis Overton, who we will refer to as “Dennis” to
distinguish him from his father. In 1985, Father and Mother ran into financial difficulties
and were facing foreclosure. Their five adult children – Derita Kay McCulloch, Shairon Fay
Howard, Hilda Gay Lowe, Shielda May Mills, and Arlie Dennis Overton – agreed to provide
financial help to save the property. They refinanced the property and, as part of the deal,
Father and Mother conveyed their interest in the property to the five children by warranty
deed (“the 1985 deed”). Dennis Overton also conveyed his 25 acres to the five children.
According to Father, Mother, and Derita, when the 1985 deed was executed, all of the parties
orally agreed that the children would convey the property back to their parents upon their
parents’ request.

        In 1986, Derita, Shairon, and Dennis executed a warranty deed (“the 1986 deed”)
conveying their interest in the property to Hilda and her husband, Audie Dean Lowe, and
Shielda Mills (“defendants”). Father and Mother continued to live on the property. The
parties co-existed peacefully from 1986 to 1999. Defendants paid the mortgage and real
estate taxes. When a small fraction of the property was taken for a public improvement,
defendants handled the transaction and kept the money. Defendants took out subsequent and
additional loans using the property as collateral. Defendants spent money on the property

                                             -2-
and made some improvements. The discontent between the parties came to a head when
Father saw Audie sowing seed on the farm. Father fired up his tractor and commenced to
plow up Audie’s freshly planted field. Heated words were exchanged which quickly led to
a physical altercation between Shairon and Hilda. Plaintiffs’ camp insisted that they were
tired of defendants acting like they owned the place. Defendants’ camp insisted that they did
own it. Somewhere in the mix, Mother asked for the property back. Soon afterward, on
advice of counsel, defendants mailed a notice of eviction to Mother.

        On June 28, 1999, Mother, Father, Derita, Shairon, and Dennis filed this lawsuit
against Hilda, Audie, and Shielda. Mother and Father alleged breach of the oral agreement
to reconvey the property back to them upon request. The plaintiff children alleged that the
defendants defrauded them by misrepresenting the 1986 deed documents to be an oil and gas
lease on the property. Father died before the first trial. The case was tried before a jury,
which returned a verdict finding that the defendants breached an agreement to reconvey, that
the defendants were guilty of fraud, deceit or misrepresentation, that the property should be
returned to Mother, and that the 25-acre tract formerly owned by Dennis should be returned
to him. The trial judge retired before fulfilling his role as thirteenth juror, leaving his
successor to attempt that task. Defendants appealed to this Court. On the first appeal, we
vacated the jury verdict, holding that the successor judge was not able to approve the verdict
as thirteenth juror under the circumstances because he did not preside over the trial and see
and hear the evidence. Overton v. Lowe, No. E2007-00843-COA-R3-CV, 2009 WL
1871946 at *7-8 (Tenn. Ct. App. E.S., filed June 30, 2009) (“Overton I”). We further held
that a directed verdict should have been granted to the defendants on the fraud,
misrepresentation and deceit claim because there was no material evidence supporting that
claim and because of the “fundamental problem in allowing a verdict to stand based on fraud
or misrepresentation inducing the plaintiffs to sign the deed that they did not bother to read
or examine.” Id. at *10. We remanded the case for a new trial on the issue of whether there
was an oral agreement to reconvey the property. Id. at *11.

         Both Mother and defendant Hilda died before the second trial. At the second jury
trial, plaintiffs presented the deposition testimony of Father, Hilda, and Shielda, in addition
to Mother’s testimony from the first trial. Derita testified in person, as did Anthony Overton,
the Executor of Mother’s estate. At the close of the plaintiffs’ proof, defendants moved for
a directed verdict, which the trial court granted, stating as follows:

              [T]he issue for the Court to resolve is purely a legal matter at
              this time. . . . I think that there is material evidence here to
              suggest that there was an [agreement] to reconvey back. The
              question [is] whether it was a year, was it – did it go on forever.



                                              -3-
                                      *       *          *

               I don’t think there’s any question – I don’t think there’s even a
               legal dispute as to whether or not there was an agreement
               between the five siblings and the parents to reconvey the
               property back if Mom and Dad got back on their feet. I don’t
               think that’s really in dispute, and I think the record’s quite clear
               on that.

               But the issue, the legal issue for the Court to resolve now is, did
               the . . . deed in 1986, did that basically – did the right to
               reconvey, was it terminated by that? I believe that would be a
               legal issue, and I believe it did. I believe, in essence, the 1986
               deed did away with the option to reconvey the property back,
               and that being the case, it did not survive past that deed. It’s a
               purely legal issue. The Court has resolved it in favor of the
               defendants in this matter.

Based solely on its ruling that, as a matter of law, the execution of the 1986 deed
extinguished any cause of action of Father and Mother based on the alleged oral agreement
to reconvey in 1985, the trial court granted defendants a directed verdict and dismissed the
case. Plaintiffs timely filed a notice of appeal.

                                                  II.

         The primary issue we address is whether the trial court erred in granting defendants’
motion for directed verdict at the close of plaintiffs’ proof. Plaintiffs also raise the issue of
whether the trial court erred “in granting [defendants’] motion in limine presented on the eve
of trial and lacking in sufficient grounds.” The trial court, however, did not grant the motion
in limine before trial, either in whole or in part. The court reviewed the issues raised by the
motion in limine, in which defendants requested the exclusion of, among other things,
evidence “suggesting fraud, misrepresentation, deceit or trickery.” The trial court held
resolution of these issues in abeyance and addressed them one-by-one as they arose during
the trial. Thus, plaintiffs are actually challenging certain evidentiary rulings of the trial court,
mostly the exclusion of certain evidence on relevancy grounds.

                                                  III.

       Our review of a directed verdict is well established and as stated by the Supreme
Court as follows:

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              This Court reviews the trial court’s decision to grant a directed
              verdict de novo, applying the same standards as the trial court.
              Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819
              (Tenn. 2003). We will affirm a directed verdict “only when the
              evidence in the case is susceptible to but one conclusion.”
              Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (citing
              Eaton, 891 S.W.2d at 590). We must “take the strongest
              legitimate view of the evidence favoring the opponent of the
              motion,” and must accept all reasonable inferences in favor of
              the nonmoving party. Id. We may affirm the motion “only if,
              after assessing the evidence according to the foregoing
              standards, [we] determine[ ] that reasonable minds could not
              differ as to the conclusions to be drawn from the evidence.” Id.;
              see also Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978).

Biscan v. Brown, 160 S.W.3d 462, 470 (Tenn. 2005). The trial court’s conclusions of law,
such as its ruling that the 1986 deed operated to terminate the alleged oral agreement to
reconvey the property as a matter of law, are reviewed de novo. See Ellis v. Pauline S.
Sprouse Residuary Trust, 304 S.W.3d 333, 337 (Tenn. Ct. App. 2009).

                                              IV.

                                              A.

       There was material evidence presented at trial from which the jury could have
reasonably concluded that the defendants breached an oral agreement to reconvey the
property upon their parents’ request. Both Father and Mother testified that there was an oral
agreement by which the children and the parents’ son-in-law, Audie, assured them that they
would convey the property back to them upon their request. According to defendant Hilda’s
testimony, the agreement was that “if they wanted it back and they could pay for it, yes, they
could have it back after the first year.” Defendant Shielda testified similarly. The trial court
explicitly found that plaintiffs presented material evidence of an agreement to reconvey.
Furthermore, this Court, in Overton I, held that “there was material evidence of an agreement
to reconvey” after reviewing substantially the same proof. 2009 WL 1871946 at *11. The
parties stipulated that, in 1999, Mother asked for the property back. All of the parties’
testimony was in agreement that the defendants refused her request.




                                              -5-
                                              B.

       The trial court concluded that, as a matter of law, “the 1986 deed did away with the
[agreement] to reconvey the property back, and that being the case, it did not survive past that
deed.” The trial court did not cite any legal principle, rule of law, or authority that would
mandate this result. By executing the 1986 deed, three of the children who then owned the
property – Derita, Shairon, and Dennis – conveyed their interest to the remaining two sisters,
Hilda and Shielda. Mother and Father were not parties to the 1986 deed. Assuming that
there was an oral agreement made by all five children at the time of the 1985 deed that the
children would convey it back upon request, it is unclear how the 1986 deed conveying one
group of siblings’ interests in the property to another group would bind the parents and
terminate the agreement. Certainly the defendants would have been aware of the oral
agreement they made a year earlier and presumably would take the property subject to that
agreement. Plaintiff Derita testified on this point as follows:

              Q: And I believe that in 1986 there is a deed done where the
              property is out of the names of you and your sister Shairon and
              your brother Dennis, and then it’s in the name of your sister
              Hilda and Shielda and Hilda’s husband, correct?

              A: Yes.

              Q: When that was done, did that change the agreement any or
              was it still to be conveyed back to your parents?

              A: Still to be give[n] back to Mama and Daddy.

Moreover, in Overton I, we observed the following on this issue:

              Plaintiffs’ fraud argument notwithstanding, even i[f] they
              knowingly signed deeds into their siblings in 1986, they could
              have believed that the deeds were in trust for the parents, or the
              whole family, just as the 1985 deed was for the parents or the
              family. It does seem questionable that plaintiffs could expect
              defendants, who were themselves people of limited means, to
              struggle for over a decade with the mortgage payments, but this
              problem is addressed somewhat with evidence that plaintiffs
              thought payments were being covered by lease proceeds.
              Moreover, it is not this court’s prerogative in reviewing a
              motion for directed verdict to weigh the evidence.

                                              -6-
2009 WL 1871946 at *11 (emphasis added). Finding no legal ground to support the
conclusion that the 1986 deed operated to terminate the alleged oral agreement and Mother
and Father’s claim, we vacate the trial court’s directed verdict as to that claim.4

                                                    C.

        While we vacate the trial court’s grant of a directed verdict as to the claim of the
Executor of Mother’s estate, we hold that the trial court correctly dismissed all of the claims
made by the children plaintiffs. As the trial court rightly observed, the fraud claim based on
the allegations that defendants tricked the plaintiff siblings by making them think they were
signing an oil and gas lease on the property instead of a warranty deed was foreclosed by our
opinion in Overton I. Regarding Dennis Overton’s claim to the 25 acres, he did not testify
at the second trial and so it appears that he has abandoned that claim. Even if he has not,
Dennis signed the 1986 deed as grantor saying that he was “hereby releasing all claims to
said property.” (Emphasis added.) Dennis is bound by this clear and unambiguous language
in the deed. On remand, the only remaining claim to be tried is that of Mother’s estate for
breach of the alleged oral agreement to reconvey.

        Finally, we briefly address plaintiffs’ arguments that the trial court erred in excluding
evidence as irrelevant. Because of our ruling in Overton I that plaintiffs’ claims of fraud,
misrepresentation, and deceit should be dismissed, the trial court correctly excluded evidence
regarding the alleged oil and gas lease and deception by the defendants. Obviously, because
the issue is whether there was an oral agreement to reconvey and, if so, whether defendants
breached it, any evidence bearing on the parties’ understanding, whether by testimony or by
evidence of their actions, is relevant. On remand, the trial court, in ruling on evidentiary
matters, should be guided by this relevancy principle. Thus, proof of defendants’ attempt to
evict their parents in 1999 should have been admitted as relevant evidence of breach of the
alleged agreement and also for fairness and completeness in light of the fact that the jury
heard Hilda’s testimony stating as follows:

                Q: When you do this loan in 1986, is that still for the purpose of
                preserving the farm for your parents?




        4
         Defendants argue in their brief that the alleged oral agreement fails due to lack of consideration.
This Court, however, has on several occasions held that “the consideration of love and affection has been
deemed sufficient to support a conveyance.” Smith v. Riley, No. E2001-00828-COA-R3-CV, 2002 WL
122917 at *3 (Tenn. Ct. App. E.S., filed Jan. 30, 2002) (citing Thomas v. Hedges, 183 S.W.2d 14, 17 (Tenn.
Ct. App. 1944)); see also Kilgore v. Kilgore, No. M2006-00495-COA-R3-CV, 2007 WL 2254568 at *4
(Tenn. Ct. App. W.S., filed Aug. 1, 2007).

                                                    -7-
              A: Not just the parents. For all of us.

              Q: For the whole family?

              A: For all of us, because we wanted to have Mom and Dad a
              place to live. We wanted – we didn’t want to see them to go to
              a nursing home or a housing project. I didn’t anyway.

                                             V.

       The judgment of the trial court granting defendants a directed verdict as to the claim
of Mother’s estate is vacated. In all other respects the judgment is affirmed. Costs on appeal
are assessed 50% to the appellants Derita Kay McCulloch, Shairon Fay Howard and Arlie
Dennis Overton and 50% to the appellees, Audie Dean Lowe, individually and as next of kin
for Hilda Gay Lowe, and Shielda May Mills. The case is remanded to the trial court for
further proceedings, consistent with this opinion and applicable law.




                                    __________________________________________
                                    CHARLES D. SUSANO, JR., PRESIDING JUDGE




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