                  IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT JACKSON


ALMA LANE MORRIS, Executrix
of the Estate of RAYMOND ALFRED
                                        )
                                        )
                                                                        FILED
MORRIS,                                 )
                                        )                         November 12, 1997
            Plaintiff/Appellant,        ) Trial Court No. T-10156
                                        )                         Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
                                        )
VS.                                     ) Appeal No. 02A01-9610-CH-00236
                                        )
VOIL MORRIS,                            )
                                        )
            Defendant/Appellee.         )

          APPEAL FROM THE CHANCERY COURT OF GIBSON COUNTY
                       AT TRENTON, TENNESSEE
             THE HONORABLE GEORGE R. ELLIS, CHANCELLOR




MITCHELL G. TOLLISON
HAWKS & TOLLISON
Humboldt, Tennessee
Attorney for Appellant



L. L. HARRELL, JR.
HARRELL, HARRELL & AGEE
Trenton, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                             ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.


      Alma Lane Morris (“Executrix”), substitute plaintiff and Executrix of the estate of
Raymond Alfred Morris (“Decedent”), appeals the trial court’s order entering a judgment

in favor of Voil Morris (“Defendant”). We reverse the trial court’s judgment because we

hold that the parties’ pleadings conclusively established that funds in Defendant’s

possession were held in trust for Decedent and that Decedent was entitled to the return

of approximately $50,000 in trust funds.



                                             Facts

       On June 25, 1992, Decedent filed a complaint seeking the return of trust funds in

the possession of Defendant. Thereafter, on July 23, 1992, Defendant filed an answer

wherein Defendant admitted that he was holding the funds in trust for      Decedent and,

further, that Decedent was entitled to approximately $50,000 of the trust. Defendant

contended that $3,500 of the funds belonged to him. On page 2, paragraph 8, of

Defendant’s answer, he stated: “The defendant admits that there was an agreement that

he was only holding the money, and that he has paid over money to him (Decedent) each

and every time that he has asked for it.” Additionally, on page 9, paragraph 11, Defendant

stated: “. . . but no records were kept, since at all times it was understood that the

defendant was holding the money in trust so that it would be kept free and clear of

creditors and any wife that he might acquire.” Finally, on page 3, paragraph 11, of

Defendant’s answer, he stated: “The defendant for answer to Paragraph 11 alleges that

the plaintiff is entitled to approximately $50,000.00, because $3,500.00 that is in the

present certificate of deposit belongs to the defendant, and was added to that in order to

get a more advantageous rate of interest.”



       Although Decedent filed this lawsuit, he died during the pendency of these

proceedings, and his wife, Executrix, was substituted as plaintiff in this action. Decedent

did not testify at trial; however, on January 4, 1994, Decedent gave his deposition which

was introduced at trial without objection.



       Decedent and Defendant are brothers. Decedent testified in his deposition that he

had saved $82,000 from working at a mop mill. Originally, Decedent placed the money in

a savings account solely in his name. Thereafter, Decedent changed the savings account

to be held jointly by Defendant and himself. Subsequently, Decedent amended the

                                              2
account so as to be held solely in the name of the Defendant within a certificate of deposit

(“CD”). Decedent testified that his reason for switching the savings account was because

he was fearful that his previous wife and her brothers would defraud him of his money.

Eighty thousand dollars ($80,000) was placed in the CD in Defendant’s name with the

other $2,000 being split between Decedent and Defendant, each receiving $1,000. At the

time of trial, approximately $51,000 remained in the CD.



       At trial, the evidence focused on the intent of Decedent concerning the money

entrusted to Defendant. According to Decedent’s deposition, Decedent originally intended

for the Defendant to receive the money that was entrusted to him. Decedent stated that

he thought Defendant would outlive him and receive the money. Along these lines,

Decedent and Defendant’s niece, Nana Laverne Duncan, testified that she spoke with

Decedent on three separate occasions within the last six months of Decedent’s life

concerning the lawsuit and the money. Duncan stated that on all three occasions the

Decedent relayed to her that he wanted his money to stay just like it was because “if

anything happens, Voil will take care of me.” However, Decedent testified that on two

occasions he asked Defendant for the return of his money from the account before he filed

this lawsuit. Defendant never complied with Decedent’s request on either occasion.

Decedent’s wife and Executrix testified that, at one point, Defendant did return $22,000 of

the money in order for Decedent to purchase a home. Additionally, Decedent stated that

when he got married, he believed Defendant would divide the money between Defendant

and himself.



       Based on the foregoing evidence, at the end of the Executrix’s proof, the trial court

ruled in favor of Defendant as to the proper disposition of the trust funds. Defendant’s

counterclaims were dismissed without prejudice. Executrix has appealed, contending that

the trial court erred in finding for Defendant.



                                   Law and Discussion

       This case was tried by the trial court without a jury, and at the conclusion of

Executrix’s proof, the court, upon Defendant’s request, granted a motion for directed

verdict. We feel compelled to digress for a moment to comment on the procedure utilized

                                              3
in this case. Motions and orders for directed verdicts are pursuant to Tenn. R. Civ. P. 50

and are appropriate only in jury trials. City of Columbia v. C.F.W. Construction Co., 557

S.W.2d 734, 740 (Tenn. 1977); Scott v. Pulley, 705 S.W.2d 666, 672 (Tenn. Ct. App.

1985); Roberts v. Robertson County Bd. of Educ., 692 S.W.2d 863, 874 (Tenn. Ct. App.

1985). They have no place in nonjury trials. Id. If a party desires to challenge the

sufficiency of the plaintiff’s proof in a nonjury trial, it must file a motion for involuntary

dismissal at the close of plaintiff’s proof pursuant to Tenn. R. Civ. P. 41.02(2).



       The respective standards of review of the trial court’s disposition of these motions

is markedly different. In the case of a motion for directed verdict, the trial court must take

the strongest legitimate view of the evidence against the directed verdict and must deny

the motion in any case where reasonable persons would not reach the same conclusions.

Goode v. Tamko Asphalt Prods., 783 S.W.2d 184, 187 (Tenn. 1989); Maddux v. Cargill,

Inc., 777 S.W.2d 687, 691 (Tenn. Ct. App. 1989). However, in the case of a motion for

involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2), the trial court must impartially

weigh and evaluate the evidence as it would after the presentation of all the evidence and

must deny the motion if the plaintiff has made out a prima facie case. City of Columbia v.

C.F.W. Constr. Co., 557 S.W.2d at 740.



       The manner in which the trial court reviews the evidence varies depending on the

type of motion that has been filed. Motions for directed verdict require more certainty in

the proof than do motions for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2).



       This case was a nonjury trial wherein Defendant moved the trial court to direct a

verdict in its favor at the close of Executrix’s proof. Procedurally, this was an inappropriate

motion. The appropriate motion was one pursuant to Tenn. R. Civ. P. 41.02(2), a motion

for involuntary dismissal. Nevertheless, whether Defendant moved the trial court for a

directed verdict or an involuntary dismissal in this case is of no consequence. Regardless

of which standard applies, we conclude that the trial court erred in dismissing the

Executrix’s action because the parties’ pleadings conclusively establish that Defendant was

holding the funds in trust for Decedent and that Decedent was entitled to approximately

$50,000 in trust funds.

                                              4
        Pleadings prepared and filed by counsel representing a party are prima facie

regarded as being authorized by the party. Pankow v. Mitchell, 737 S.W.2d 293, 296

(Tenn. Ct. App. 1987); See also E. Cleary, McCormick’s Handbook of the Law of Evidence

§ 265, at 783-84 (3d ed. 1984). Thus, factual statements contained in pleadings filed on

behalf of a party may be considered as admissions. Id. Factual statements in pleadings

are conclusive against the pleader in the proceedings in which they were filed until they

have been amended or withdrawn. Pankow, 737 S.W.2d at 296 (quoting John P. Saad &

Sons, Inc. v. Nashville Thermal Transfer Corp., 642 S.W.2d 151, 152 (Tenn. Ct. App.

1982)). Hence, when the allegations in a complaint are admitted in the answer, the subject

matter of the allegations is removed as an issue and no proof is necessary. Irvin v. City

of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988)(quoting Rast v. Terry, 532

S.W.2d 552, 554 (Tenn. 1976)); see also Wilson v. Maury County Board of Education, 302

S.W.2d 502, 507 (1957).



        In the case at bar, Defendant filed an answer in which he admitted to holding funds

entrusted to him by Decedent in trust. Further, Defendant admitted that Decedent was

entitled to a return of approximately $50,000 from the trust funds. Defendant did not

withdraw or amend his pleadings; hence, these admissions in the pleadings were

conclusive. Based on the parties’ pleadings, therefore, the issues of whether a trust was

established and whether Executrix was entitled to approximately $50,000 from said trust

were no longer issues in this matter.



        As mentioned above, the evidence at trial focused on the intent of the Decedent

concerning the funds in the CD. However, this emphasis was misplaced. As a matter of

law, the parties’ pleadings not only established the existence of a trust but also that

Decedent was entitled to approximately $50,000 from such funds. Accordingly, Decedent’s

intent regarding disposition of the funds upon his death was irrelevant to any issues in this

lawsuit, and the trial court erred when it dismissed this matter at trial by granting a directed

verdict at the close of Executrix’s proof.1


        1
           The issues at trial may have been muddied by Decedent’s death. Upon the death of De cedent, this
law suit survived and continued in the name of Alma Lane Morris, the Executrix of Decedent’s estate. T.C.A.
§ 20-5-102; Tenn. R. Civ. P. 25. Ac cordingly, the issues in this case should have been tried as if the Decedent
were still alive. Leffew v. Mayes, 685 S.W .2d 288 , 291-92 (Te nn. C t. App. 1984)(where joint tenants differed
on ownersh ip of funds and, during the ir lifetime, brought suit to establish their respective interests therein,

                                                       5
        We reverse the trial court’s judgment and hold that, with the possible exception of

Defendant’s claim for $3,500 from trust funds, Executrix is entitled to the funds held in the

CD. On remand, the trial court shall adjudicate Defendant’s claim for $3,500 and award

the remaining trust funds to Executrix.



                                                Conclusion

        The trial court’s judgment is reversed and this matter is remanded for further

proceedings necessary and consistent with this opinion. Costs of this appeal are taxed to

Defendant, for which execution may issue if necessary.




                                                                              HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




owners hip of funds sho uld have been determ ined as if both claimants we re still living).

                                                       6
