                IN THE COURT OF APPEALS OF TENNESSEE
                                                               FILED
                            AT KNOXVILLE                     March 24, 1999

                                                            Cecil Crowson, Jr.
                                                         Appellate C ourt
IN THE MATTER OF:                )   C/A NO.                 Clerk
                                               03A01-9808-PB-00249
     THE ESTATE OF A.W. WOLFE,   )
     DECEASED.                   )
                                 )
BRENDA MATTHEWS,                 )
                                 )
     Plaintiff-Appellant,        )
                                 )   APPEAL AS OF RIGHT FROM THE
                                 )   SEVIER COUNTY PROBATE COURT
v.                               )
                                 )
                                 )
                                 )
                                 )
RICHARD BRADLEY WOLFE, Executor, )
                                 )   HONORABLE CHARLES S. SEXTON,
     Defendant-Appellee.         )   JUDGE



For Appellant                        For Appellee

ROBERT L. OGLE, JR.                  R.B. HAILEY
Ogle & Wallace, P.C.                 Sevierville, Tennessee
Sevierville, Tennessee




                          O P I N IO N




AFFIRMED AND REMANDED                                         Susano, J.

                                 1
           This lawsuit involves a claim filed by Brenda Matthews

(“Matthews”) against the Estate of A.W. Wolfe (“the Estate”).

Mr. Wolfe died testate on October 17, 1989.      In her complaint,

Matthews seeks recovery for personal services rendered by her to

Mr. Wolfe.    The probate court granted the Estate’s motion to

dismiss.   Matthews appeals, raising the sole issue of whether the

probate court erred in dismissing her claim.      We affirm.



                   I.    Facts and Procedural History



             Matthews testified that she began providing services to

Mr. Wolfe around the time of his heart attack in March, 1977, and

that she continued to assist him until he died at the age of 75.

Matthews, who was approximately 42 years old at the time of Mr.

Wolfe’s death, had known Mr. Wolfe for most of her life.

According to Matthews, she went to his home every day to cook for

him, clean, help with work on his farm, and perform various other

duties to assist him.      She also testified that she frequently

drove him to the store, as well as to various doctors and

hospitals in Sevierville and Nashville.



             Matthews testified that she was a close friend of Mr.

Wolfe’s.     She denied the existence of any romantic relationship.



             Matthews alleged that she took care of Mr. Wolfe for

some twelve and a half years.       She testified in her deposition

that Mr. Wolfe had promised to “take care of” her if she would

take care of him.       Matthews had no written contract with Mr.

Wolfe, nor was she paid any wages by him; however, she did


                                     2
acknowledge that Mr. Wolfe had bought rings for her and had

helped her pay for several Cadillacs over the years.



            Shortly after Mr. Wolfe died in 1989, his will was

admitted to probate.      The will, which had been executed on

October 8, 1977, makes no provision for Matthews; instead it

leaves to his wife1 “the amount to which she is entitled to

receive as my wife under the laws of the State of Tennessee,” and

places the rest of the estate in trust for the benefit of his

son, who is the executor of the Estate.



            On or about January 12, 1990, Matthews filed a claim

against the estate and a complaint in the probate court, seeking

$42,700 as compensation for services rendered to Mr. Wolfe.              In

response, the Estate filed an exception to her claim and an

answer to the complaint.



            Following the filing of the Estate’s answer, little or

no action was taken in this case until August 18, 1992, at which

time Matthews’ deposition was taken by agreement of the parties.

Apparently, Matthews subsequently failed to furnish various late-

filed exhibits that had been requested during her deposition.

Other than correspondence relative to the production of these

exhibits, no additional action appears to have been taken in the

case for over four years from the date of Matthews’ deposition.

On October 18, 1996, the deposition of Mr. Wolfe’s wife, Helen B.

Wolfe (“Mrs. Wolfe”), was taken.          In March, 1997, Mr. Wolfe’s

son, Richard Bradley Wolfe, submitted his affidavit, and on April

      1
       Mr. and Mrs. Wolfe had separated in early 1977, but were still married
at the time of Mr. Wolfe’s death.

                                      3
29, 1997, the Estate filed a motion to dismiss Matthews’

complaint.    In the motion, the Estate cites several bases for

dismissal, including laches, failure to prosecute, frivolous

claim, and accord and satisfaction.     Significantly, it also

relies upon Estate of Nease v. Sane, C/A No. 03A01-9104-CH-00150,

1991 WL 220954 (Tenn.App., E.S., filed November 1, 1991,

McMurray, J.), a case involving similar facts in which this Court

found that the plaintiff’s proof was insufficient to establish

the requisite contract, express or implied, between the plaintiff

and the decedent.    In support of its motion in the instant case,

the Estate attached as exhibits various documents, including the

will, Matthews’ deposition, Mrs. Wolfe’s deposition, and Richard

Bradley Wolfe’s affidavit.     Matthews did not file any affidavits

or discovery material in response to the Estate’s motion.



          Following a hearing, the probate court found “the

Motion to Dismiss by the Executor to be well taken relying on the

[case of] Estate of Nease v. Sane.”      It therefore dismissed the

complaint, and Matthews appealed.



                        II.   Standard of Review



             In evaluating the Estate’s motion to dismiss, the trial

court considered, among other things, the deposition testimony of

Matthews and Mrs. Wolfe, as well as the affidavit of Richard

Bradley Wolfe.    Rule 12.03, Tenn.R.Civ.P., provides that where

“on a motion for judgment on the pleadings, 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


                                    4
of as provided in Rule 56....”    Such being the case here, we must

review the decision of the trial court under the standard of Rule

56, Tenn.R.Civ.P., which provides in pertinent part as follows:



          ...the judgment sought shall be rendered
          forthwith if the pleadings, depositions,
          answers to interrogatories, and admissions on
          file, together with the affidavits, if any,
          show that there is no genuine issue as to any
          material fact and that the moving party is
          entitled to a judgment as a matter of law....



Rule 56.04, Tenn.R.Civ.P.



          When reviewing a grant of summary judgment, an

appellate court must decide anew if judgment in summary fashion

is appropriate.   Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn. 1991); Gonzalez v. Alman Constr. Co., 857 S.W.2d

42, 44-45 (Tenn.App. 1993).    Since this determination involves a

question of law, there is no presumption of correctness as to the

trial court’s judgment.     Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn. 1997); Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).

In making our determination, we must view the evidence in a light

most favorable to the nonmoving party, and we must draw all

reasonable inferences in favor of that party.       Byrd v. Hall, 847

S.W.2d 208, 210-11 (Tenn. 1993).       Summary judgment is appropriate

only if no genuine issues of material fact exist and if the

undisputed material facts entitle the moving party to a judgment

as a matter of law.   Rule 56.04, Tenn.R.Civ.P.; Byrd, 847 S.W.2d

at 211.




                                   5
                       III.   Applicable Law



          We have recently summarized the law applicable to cases

such as the one now before us:



          In asserting a claim against an estate for
          services rendered the decedent, the cause of
          action necessarily is based upon either
          contract or quasi contract. To bring a
          contract into existence there must be an
          offer and an acceptance of that offer. The
          offer and acceptance may be expressed or
          implied from the parties’ conduct.

          Contracts implied in fact arise under
          circumstances which, according to the
          ordinary course of dealing and common
          understanding of men, show a mutual intention
          to contract. Such an agreement may result as
          a legal inference from the facts and
          circumstances of the case.

          In order to make out an implied contract for
          the rendition of services, facts and
          circumstances must be shown which amount to a
          request for services, which is the offer to
          contract, and the performance of the
          requested services, which is the acceptance
          of the offer.



Cobble v. McCamey, 790 S.W.2d 279, 281 (Tenn.App. 1989)

(citations omitted).   Furthermore, we have stated that



          [w]here one renders services to another in
          the hope or expectation of a legacy, devise,
          or other provision by will for his benefit,
          without any contract, express or implied, but
          relying solely upon the generosity of the
          person for whom such services were rendered,
          he cannot recover for such services because
          of the failure of such person to make such
          testamentary provision in his behalf.

          Therefore, if the plaintiffs establish that
          the decedent expressly or impliedly requested
          the services, and if plaintiffs prove that
          they rendered those services with the
          expectation that they were to be paid in some

                                 6
          manner for those services, then a contract is
          made out entitling the plaintiffs to recover
          against the estate for the reasonable value
          of those services. This contract must be
          proven in the face of the “Dead Man’s”
          statute (T.C.A. [§] 24-1-203) and the hearsay
          rule.



Cobble, 790 S.W.2d at 282 (citations omitted; emphasis in

original); see also Cotton v. Roberts’ Estate, 337 S.W.2d 776,

779-80 (Tenn.App. 1960).



          T.C.A. § 24-1-203, commonly referred to as the “Dead

Man’s Statute,” provides that



          [i]n actions or proceedings by or against
          executors, administrators, or guardians, in
          which judgments may be rendered for or
          against them, neither party shall be allowed
          to testify against the other as to any
          transaction with or statement by the
          testator, intestate, or ward, unless called
          to testify thereto by the opposite party....



Generally speaking, within the meaning of this statute, the

phrase “transaction with or statement by” the deceased has been

interpreted to “pertain to matters of personal communication

between the claimant and the deceased.”     Watts v. Rayman, 462

S.W.2d 520, 522 (Tenn.App. 1970).



                           IV.   Analysis



          Cobble contemplates two distinct factual scenarios in

cases involving claims for personal services rendered to a

decedent during his or her lifetime: first, where the claimant



                                  7
has performed the services pursuant to an express or implied

contract between the claimant and the decedent; and second, where

the claimant has performed the services without a contract but

with the mere hope or expectation of being rewarded in the

decedent’s will.   See Cobble, 790 S.W.2d at 281-82.   It is clear

that under the latter scenario, the claimant generally “cannot

recover for such services because of the failure of [the

decedent] to make such testamentary provision in his behalf.”

Id. at 282; see also Cotton, 337 S.W.2d at 780.



          The probate court found that the facts of the instant

case bring it within the second category listed above.     Implicit

in the court’s holding was a finding that, in accordance with

Estate of Nease, 1991 WL 220954, no contract had existed between

Matthews and Mr. Wolfe, and that Matthews had rendered the

services to Mr. Wolfe in the hope or expectation of being

rewarded in the latter’s will.   The probate court thus determined

that Matthews was precluded from recovery.



          The only sworn testimony in the record is found in

Matthews’ deposition, Mrs. Wolfe’s deposition, and Richard

Bradley Wolfe’s affidavit.   As noted earlier, Matthews

acknowledges that she had no written contract with Mr. Wolfe.

The only specific evidence relevant to the existence of some

other type of contract is found in Matthews’ deposition.     The

deposition, consisting of some 75 pages, contains much testimony

regarding statements allegedly made to Matthews by Mr. Wolfe;

none of these statements are more specific than her assertion

that “he told me he was going to take care of me.”     This court


                                 8
has previously stated that evidence of statements of this type is

“ambiguous, vague, and indefinite, and does not prove the

elements of a contract.”     Cotton, 337 S.W.2d at 779.    Thus, it is

by no means clear that the testimony offered by Matthews, even if

admissible, would constitute evidence of a contract.       However,

even assuming, without deciding, that this testimony is

sufficient to create an issue of material fact as to whether a

contract existed, it nevertheless pertains to “transaction[s]

with or statement[s] by the testator,” i.e., Mr. Wolfe.       T.C.A. §

24-1-203.   As such, the testimony is inadmissible under the Dead

Man’s Statute, which, in the context of this case, prohibits

Matthews from testifying against the estate as to statements made

to her by Mr. Wolfe.   Id.



            The remaining, admissible portions of Matthews’

deposition do not make out a genuine issue of material fact as to

whether an express or implied contract existed.     As explained in

Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993), the facts upon

which the nonmovant relies must be admissible at trial;

accordingly, we may only consider admissible evidence in

reviewing this grant of summary judgment.     Thus, Matthews’

testimony reflects a rendering of services, and nothing more.         By

the same token, the record contains no other testimony that would

establish an express or implied contract.



            Having considered the record in this case, we find that

there is no admissible evidence of a contract, express or

implied, between Matthews and Mr. Wolfe.     Rule 56.04,

Tenn.R.Civ.P.    The material filed by the Estate reflects an


                                   9
absence of a contract; the record as a whole does not contain any

admissible countervailing evidence.      In the absence of any

evidence of a contract, Matthews’ claim rests solely on her hope

or expectation of being rewarded in Mr. Wolfe’s will; this being

the case, Mr. Wolfe’s failure to make testamentary provision on

her behalf does not entitle her to recover for the services

rendered to him.    Cobble, 790 S.W.2d at 282; Cotton, 337 S.W.2d

at 780.   Therefore, the Estate was and is entitled to judgment as

a matter of law.    Rule 56.04, Tenn.R.Civ.P.    Accordingly, we hold

that the probate court correctly dismissed Matthews’ claim.



                            V.   Conclusion



           The decision of the probate court dismissing the

appellant’s complaint is affirmed.      Costs on appeal are taxed to

the appellant.     This case is remanded to the probate court for

the collection of costs assessed there, pursuant to applicable

law.



                                        __________________________
                                        Charles D. Susano, Jr., J.



CONCUR:



________________________
Herschel P. Franks, J.



________________________
Don T. McMurray, J.




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