                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  October 29, 2004 Session

                 HELEN BROYLES v. EMMA WOODSON, ET AL.

                   Appeal from the Chancery Court for Campbell County
                        No. 15,547    Billy Joe White, Chancellor



                No. E2004-00402-COA-R3-CV - FILED FEBRUARY 17, 2005


Helen Broyles (“Plaintiff”) sued Emma Woodson and the Estate of H.Y. Woodson, Emma Woodson,
Executrix (“Defendants”) claiming that her husband and H.Y. Woodson entered into an agreement
in 1990 for Plaintiff’s husband to purchase a house located in LaFollette, Tennessee for $21,000.
Both Plaintiff’s husband and H.Y. Woodson had passed away when the complaint was filed.
Plaintiff claimed Emma Woodson was not calculating interest properly and had not given Plaintiff
proper credit for the house payments that had been made. Plaintiff requested the Trial Court
examine the relevant documentation and establish the amount of Plaintiff’s equity and the amount
still owing. It was admitted by the parties that there was an agreement of some sort between their
deceased husbands. However, that agreement was either an oral agreement or, if it had been reduced
to writing, the written instrument appeared to be lost or destroyed. The Trial Court granted summary
judgment to Defendants after concluding: (1) the Statute of Frauds rendered the agreement
unenforceable; (2) the Dead Man’s Statute precluded admission into evidence of any proof regarding
the terms of the agreement; and (3) Defendants had negated an essential element of Plaintiff’s
contract claim which required her to establish the essential elements of the alleged contract with
reasonable definiteness. Plaintiff appeals, and we affirm as modified.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.


Timothy Webb, Jacksboro, Tennessee, for the Appellant Helen Broyles.


Joseph G. Coker, Jacksboro, Tennessee, for the Appellees Emma Woodson and the Estate of H.Y.
Woodson, Emma Woodson, Executrix.
                                              OPINION

                                            Background

                 Plaintiff claims that in October of 1990, her now deceased husband entered into an
agreement with H.Y Woodson to purchase a house located in LaFollette, Tennessee. According to
Plaintiff, she and her husband took possession of the house and began making regular monthly
payments in the amount of $200 toward the indebtedness. After both Plaintiff’s husband and H.Y.
Woodson passed away, Plaintiff claims she continued to make the same regular monthly payments,
although the payments were sent to H.Y. Woodson’s widow, defendant Emma Woodson (“Mrs.
Woodson”). Plaintiff filed this lawsuit in December of 2001 claiming she has never been given a
copy of the contract evidencing the sale of the house even though she has made numerous requests
asking for it. Plaintiff also claimed the receipts given to her by Mrs. Woodson do not show a proper
interest calculation and that she had paid “much more than has been reflected in her receipts.”
Plaintiff requested the Trial Court examine all of the relevant documents and “reform the contract
to give her proper credit, showing the proper equity she has built, as well as the remaining liability.”
Plaintiff filed this lawsuit against Mrs. Woodson individually and the Estate of H.Y. Woodson,
Emma Woodson, Executrix.

               On April 19, 2002, Plaintiff filed a motion for default judgment. Plaintiff claimed
in this motion that: (1) the complaint was filed on December 6, 2001; (2) Mrs. Woodson was
personally served with process on February 26, 2002; (3) Mrs. Woodson was required to “make
appearance, answer, and make defense” by March 28, 2002; and (4) Mrs. Woodson failed to do so.
According to the record on appeal, no action was taken to schedule a hearing on the motion for
default judgment even though no response to that motion ever was filed. We likewise can find no
order showing that the Trial Court actually ruled on Plaintiff’s motion for default judgment.

               On July 2, 2002, two motions to dismiss were filed. The first motion to dismiss was
filed on behalf of the Estate of H.Y. Woodson, Emma Woodson, Executrix. According to this
motion, H.Y. Woodson died on November 26, 2000, and his estate was probated in the Campbell
County Chancery Court, Probate Division. The estate was opened on December 27, 2000, and Mrs.
Woodson was appointed as executrix. The motion then described the following events:

               [O]n December 27, 2000, … letters testamentary were issued.…
               [T]he Notice to Creditors required by Tennessee Code Annotated
               Sections 30-2-306, 314, and 317, was published in The LaFollette
               Press, a newspaper of general circulation in Campbell County,
               Tennessee, on January 4, 2001, and January 11, 2001; that no claims
               were filed against said estate of H.Y. Woodson, deceased; and that
               any potential claims were barred after the expiration of four (4)
               months from the date of the first publication on January 4, 2001.

                                                 ***


                                                  -2-
               [U]pon the closing of the Estate of H.Y. Woodson on August 31,
               2001, the Movant, Emma Woodson, no longer has the legal capacity
               [to] be sued as Executrix of the estate or to otherwise act on behalf of
               the estate pursuant to Tennessee Code Annotated Section 30-2-701,
               and under Tennessee law generally, and that any unfiled claims
               against the estate were barred after Friday, May 4, 2001, pursuant to
               Tennessee Code Annotated Section 30-2-310, and/or Tennessee Code
               Annotated Section 30-2-501, and under Tennessee law generally.
               Further, that H.Y. Woodson, was deceased on November 26, 2000;
               that this action was filed on December 6, 2001, more than one (1)
               year from the date of death of H.Y. Woodson, deceased, and that such
               claims are therefore also barred after Monday, November 26, 2001,
               pursuant to Tennessee Code Annotated Section 30-2-310, and under
               Tennessee law generally.

                The second motion to dismiss was filed by Mrs. Woodson in her individual capacity.
In this motion, Mrs. Woodson claimed that after a diligent search, she could locate neither an
original nor a copy of any alleged sale agreement regarding the subject property. Mrs. Woodson
added that if such an agreement ever did exist, it probably was destroyed by a fire which occurred
on or about June 30, 1991. Mrs. Woodson argued that Plaintiff failed to state a claim upon which
relief could be granted pursuant to Tenn. R. Civ. P. 12.02(6). Mrs. Woodson further maintained that
Plaintiff’s claims were barred by the statute of frauds, Tenn. Code Ann. § 29-2-101 (“Statute of
Frauds”), and Tenn. R. Civ. P. 8.03 because the complaint did not allege any writing signed by Mrs.
Woodson which obligated her to convey the land to Plaintiff or which set forth the terms of any
purported agreement.

                Even though the motions to dismiss still were pending, on November 2, 2002,
Defendants filed a motion for summary judgment. A Statement of Undisputed Material Facts was
filed in support of the motion for summary judgment and “in support of the Motion to Dismiss as
to ‘Estate of H.Y. Woodson, Emma Woodson, Executrix’ … and also in support of the Motion to
Dismiss as to Emma Woodson, individually….” In the Statement of Undisputed Facts, Defendants
relied upon Requests for Admissions, Interrogatories, and Requests for Production of Documents
which had been answered by Plaintiff, as well as several exhibits which were attached to these
documents.

                 As noted, Mrs. Woodson argued in her motion to dismiss that Plaintiff’s claims were
barred by the Statute of Frauds and further that Plaintiff failed to allege the existence of any writing
which would obligate her to convey the land to Plaintiff. It is worth noting that by this point in the
litigation, it was clear that any alleged agreement between Plaintiff’s husband and H.Y. Woodson
was either an oral agreement or, if it had been reduced to writing, the written instrument was forever
lost or destroyed. As a result, Plaintiff had some significant obstacles to overcome, in particular the
Statute of Frauds which, generally speaking, requires a contract for the sale of land to be in writing
and signed by the party to be charged therewith in order for that contract to be enforceable. See


                                                  -3-
Tenn. Code Ann. § 29-2-101(a)(4). Assuming Plaintiff could somehow get around the requirements
of the Statute of Frauds, she then would have to establish the essential terms of the alleged contract
between her husband and H.Y. Woodson. See, e.g., Jamestowne on Signal, Inc. v. First Federal Sav.
& Loan Ass’n, 807 S.W.2d 559, 565 (Tenn. Ct. App. 1990)("To be valid and enforceable, ... a
contract must be reasonably definite and certain in its terms so that a court may require it to be
performed.… It must spell out the obligations of each of the parties with reasonable definiteness.
Indefiniteness as to any essential element of the agreement may prevent the creation of an
enforceable contract.”)(quoting Union State Bank v. Woell, 434 N.W.2d 712, 717 (N.D. 1989)).

               Notwithstanding the basis upon which Mrs. Woodson claimed the lawsuit should be
dismissed, Mrs. Woodson effectively admitted that her husband had entered into some sort of an
agreement with Plaintiff’s husband when she filed Requests for Admissions asking Plaintiff to admit
the following:

               (1)     That on or about October 1, 1990, the Plaintiff, Helen
                       Broyles, and her now deceased husband, Donald Broyles,
                       entered into an agreement with H.Y. Woodson, the now
                       deceased husband of the Defendant, Emma Woodson, to
                       purchase a certain house and land located at 406 River Drive,
                       LaFollette, Tennessee 37766.

               (2)     That the terms of the agreement referenced in Request (1)
                       above provided for a purchase price of Twenty One Thousand
                       ($21,000.00) Dollars.

               (3)     That the terms of the agreement referenced in Request (1)
                       above provided for payment of interest at seven (7.00%)
                       percent per annum annual percentage rate (APR).

               (4)     That the terms of the agreement referenced in Request (1)
                       above provided for monthly payments of principal and
                       interest in the amount of Two Hundred ($200.00) Dollars.

                                                ***

               (11)    That the balance due on the house and land as referenced in
                       Request (1) above bears interest at the agreed rate of seven
                       (7.00%) percent per annum annual percentage rate (APR).

               (12)    That an interest rate of seven (7.00%) percent per annum
                       annual percentage rate (APR) is a fair and reasonable rate of
                       interest with respect to the house and land referenced in
                       Request (1) above.


                                                 -4-
                When Plaintiff answered these requests for admissions, she admitted only that her
husband and H.Y. Woodson had entered into an agreement for Plaintiff’s husband to purchase the
house for $21,000. Plaintiff denied the remaining requests based on lack of knowledge and, as a
result, an essential element of the sale contract, i.e., the interest rate, continued to be in dispute and
Plaintiff seemed to be without any proof to establish this essential element.

               On May 5, 2003, a hearing was conducted on Defendants’ three pending motions.
This hearing was ten months after the motions to dismiss were filed, and approximately six months
after the motion for summary judgement was filed. Plaintiff never filed a response to any of these
three motions. An order was entered by the Trial Court sixteen days after the hearing granting both
motions to dismiss as well as the motion for summary judgment. The Trial Court did not state in
the order why the motions were being granted and the record contains no transcript from the hearing.

                Even though there had been no trial, Plaintiff filed a “Motion for New Trial and
Motion to Set Aside Judgment.” In this motion, Plaintiff claimed the Trial Court specifically stated
at the May 5th hearing that it would wait thirty days before issuing any ruling. However, the Trial
Court entered its order dismissing the case only sixteen days after the hearing, or as Plaintiff claims,
at least fourteen days prematurely. Plaintiff argued in her motion that she “verily believes that she
will be able to provide the evidence necessary for a meritorious claim should she be allowed to
present same.” Plaintiff further claimed that the Trial Court did not hear any testimony at the hearing
and had such testimony been allowed it “would have shown Plaintiff to have a meritorious claim.”

                Before we discuss the Trial Court’s ruling on Plaintiff’s “Motion for New Trial,” we
feel compelled to mention several points. First, we have not been provided a transcript from the
hearing where the Trial Court supposedly indicated it would wait thirty days before issuing a ruling.
Without a transcript we cannot verify the accuracy of this assertion or its import. Second, Plaintiff’s
complaint had been pending for one year and five months before it was dismissed. In her “Motion
for New Trial” Plaintiff offered absolutely no explanation why one year and five months was
insufficient for her to develop necessary evidence, but an additional fourteen days would have done
the trick. Third, assuming Plaintiff’s testimony would have shown the existence of a meritorious
claim, Plaintiff again offered no explanation why that testimony was not presented to the Trial Court
in the form of an affidavit and filed in response to Defendants’ motion for summary judgment which
had been pending for six months. See Tenn. R. Civ. P. 56.06. Along this line we further note that
Plaintiff’s “Motion for New Trial” was filed thirty days after entry of the order of dismissal and
forty-six days after the hearing. If Plaintiff needed thirty days from the date of the hearing in order
to come up with evidence of her meritorious claim, this Court is at a loss as to why the Trial Court
was not provided with any of that evidence forty-six days later when the “Motion for New Trial” was
filed.

                In December of 2003 the Trial Court conducted a hearing on Plaintiff’s “Motion for
New Trial and Motion to Set Aside Judgment” and an order ruling on the motion was entered the
following month. The Trial Court’s order detailed the various pleadings which had been reviewed
prior to entry of the order and noted it also had considered “the arguments of counsel … [and] the


                                                   -5-
record as a whole” before concluding: (1) Plaintiff’s claims were barred by the “Dead Man Statute
set forth in Tennessee Code Annotated 24-1-203"; (2) Plaintiff’s claims were barred by the Statute
of Frauds, Tenn. Code Ann. § 29-2-101, as well as Tenn. R. Civ. P. 8.03; (3) because no written
contract ever was found and because the parties could not agree to the essential terms of any
agreement which may have existed, the court could not speculate as to the missing terms; and (4)
there was “not sufficient relevant admissible evidence to carry the burden of proof required of the
Plaintiff in this case.” After making these findings the Trial Court denied Plaintiff’s motion. Once
again we have not been provided a transcript from the hearing.

                Plaintiff appeals raising the following issues, which we quote:

                I.      Whether the Court Should Have Entered a Default Judgment
                        against Defendants Prior to the Filing of the Motion to
                        Dismiss by Defendant[s].

                II.     Whether the Court Erred by Granting Summary Judgment to
                        Defendants and/or Granting Defendants’ Motion to Dismiss
                        Without Viewing the Evidence Contained Within the Record
                        in Furtherance of Her Claim to the Subject Property Which
                        Bore Direct Relation to Her Claim.

             The only issue raised by Defendants is their claim that Plaintiff’s appeal is frivolous
and damages should be awarded pursuant to Tenn. Code Ann. § 27-1-122.

                                               Discussion

                With regard to Plaintiff’s first issue, we review a trial court’s decision to grant or deny
a motion for default judgment under an abuse of discretion standard. See Pache Indus., LLC v.
Wallace Hardware Co., No. E2003-01483-COA-R3-CV, 2003 Tenn. App. LEXIS 802, at * 4 (Tenn.
Ct. App. Nov. 12, 2003), no appl. perm. appeal filed (citing State of Tennessee ex rel. Jones v.
Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000)). Although Plaintiff’s motion for default
judgment only references a single “Defendant” and never identifies which Defendant the motion
applies to, for present purposes we assume it was intended to apply to both Defendants.

                As relevant to this appeal, Tenn. R. Civ. P. 55.01 provides:

                        When a party against whom a judgment for affirmative relief
                is sought has failed to plead or otherwise defend as provided by these
                rules and that fact is made to appear by affidavit or otherwise,
                judgment by default may be entered as follows:

                       The party entitled to a judgment by default shall apply to the
                court. All parties against whom a default judgment is sought shall be


                                                   -6-
               served with a written notice of the application for judgment at least
               five days before the hearing on the application, regardless of whether
               the party has made an appearance in the action.…

                The plain language of Rule 55.01 thus contemplates a hearing on any application for
default judgment. After Plaintiff filed her motion for default judgment, no steps were taken to
schedule that motion for a hearing. Therefore, the motion for default judgment still was pending
when Defendants filed their motions to dismiss and motion for summary judgment. According to
the record, the very first hearing in this case occurred on May 5, 2003, after which the Trial Court
granted all three of Defendants’ motions and dismissed the lawsuit. The order from the May 5th
hearing specifically identifies which motions were considered by listing all three of Defendants’
motions. No mention is made of Plaintiff’s motion for default judgment. Because we have no
transcript from the hearing, this Court can only speculate on whether Plaintiff informed the Trial
Court that her motion for default judgment had yet to be ruled upon. The Trial Court may well have
assumed that Plaintiff had abandoned her motion in light of the various motions filed by Defendants
and the discovery which had taken place in the interim. We simply do not know.

                  Since the granting of a Rule 55.01 motion for default judgment is discretionary, by
definition a trial court never is required to grant such a motion unless the failure to do so would be
an abuse of discretion. Even if we assume Plaintiff met the requirements of Rule 55.01, this would
mean only that the Trial Court’s discretion on whether to grant the motion was triggered. In her
brief, Plaintiff simply argues that she met the requirements of Rule 55.01 and, therefore, the Trial
Court erred in not granting her motion. This argument would be correct only if the Trial Court had
no discretion. Because the Trial Court does have discretion, Plaintiff must take matters one step
further. Specifically, she must show not only that she met the requirements of Rule 55.01 and the
Trial Court denied her motion, but she also must affirmatively establish why the denial of her motion
amounted to an abuse of discretion. Even assuming the Trial Court did consider Plaintiff’s motion
for default judgment and that it was implicitly denied, Plaintiff has offered no argument nor can we
find one which would enable us to conclude that the Trial Court abused its discretion. Further, if the
Trial Court never considered Plaintiff’s motion for default judgment because a hearing never was
scheduled or because it assumed the motion had been abandoned, then the fault lies with Plaintiff
and we again decline to award her any relief on appeal as to this issue. See Tenn. R. App. P.
36(a)(“Nothing in this rule shall be construed as requiring relief be granted to a party responsible for
an error or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”).

             The next issue is whether the Trial Court properly granted the three motions filed by
Defendants, which were comprised of two motions to dismiss and one motion for summary
judgment. As relevant to this appeal Tenn. R. Civ. P. 12.02 provides that:

               If, on a motion asserting the defense numbered (6) to dismiss for
               failure to state a claim upon which relief can be granted, matters
               outside the pleading are presented to and not excluded by the court,


                                                  -7-
               the motion shall be treated as one for summary judgment and
               disposed of as provided in Rule 56, and all parties shall be given
               reasonable opportunity to present all material made pertinent to such
               a motion by Rule 56.

               The primary argument of both motions to dismiss was that Plaintiff failed to state a
claim upon which relief could be granted. Since matters outside the pleadings were presented to and
considered by the Trial Court when ruling on these motions, they were converted from Rule 12.02(6)
motions into Rule 56 motions for summary judgment. The distinction between a Rule 12.02(6)
motion and a Rule 56 motion is significant:

               While the controlling question on appeal is still a question of law, it
               is now a Rule 56 question rather than a Rule 12.02(6) question. The
               Rule 12.02(6) question is whether or not the complaint, without any
               consideration of extraneous materials, fails to "state a claim upon
               which relief can be granted." Tenn. R. Civ. P. 12.02(6); see also
               League Cent. Credit Union v. Mottern, 660 S.W.2d 787 (Tenn. Ct.
               App. 1983). A Rule 56 motion, however, addresses not the
               allegations of the complaint, but the merits of the litigation. Fowler
               v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978). The
               question here is not whether the allegations of the complaint are
               sufficient to state a cause of action but "what material facts are
               actually and in good faith controverted." Tenn. R. Civ. P. 56.05.

Brick Church Transmission, Inc. v. Southern Pilot Ins. Co., 140 S.W.3d 324, 328-29 (Tenn. Ct. App.
2003). Accordingly, we will review the Trial Court’s granting of all three of Defendants’ motions
using the summary judgment standard recently reiterated by our Supreme Court in Blair v. West
Town Mall, 130 S.W.3d 761 (Tenn. 2004):

                      The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of
               Tennessee Rule of Civil Procedure 56 have been met. See Staples v.
               CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v.
               Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran
               Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee
               Rule of Civil Procedure 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, and 2) the moving party is entitled to a judgment as a matter
               of law on the undisputed facts. Staples, 15 S.W.3d at 88.


                                                -8-
                                              ***

                       When the party seeking summary judgment makes a properly
                       supported motion, the burden shifts to the nonmoving party
                       to set forth specific facts establishing the existence of
                       disputed, material facts which must be resolved by the trier of
                       fact.

                                To properly support its motion, the moving party must
                       either affirmatively negate an essential element of the
                       non-moving party’s claim or conclusively establish an
                       affirmative defense. If the moving party fails to negate a
                       claimed basis for the suit, the non-moving party’s burden to
                       produce evidence establishing the existence of a genuine issue
                       for trial is not triggered and the motion for summary judgment
                       must fail. If the moving party successfully negates a claimed
                       basis for the action, the non-moving party may not simply rest
                       upon the pleadings, but must offer proof to establish the
                       existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting Staples, 15 S.W.3d at 88-89). Blair also makes clear that
a motion for summary judgment must either affirmatively negate an essential element of the
non-moving party’s claim or conclusively establish an affirmative defense before the burden of
production will shift to the non-moving party. It is insufficient simply to assert that the opposing
party will be unable to prove her claims at trial. Id. at 767-69.

              Our Supreme Court also has provided instruction regarding assessing the evidence
when dealing with a motion for summary judgment, stating:

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).




                                                 -9-
                 There were four reasons the Trial Court concluded summary judgment was
appropriate. The first two reasons involved Defendants conclusively establishing affirmative
defenses, i.e., that Plaintiff’s claims were barred by the Dead Man’s Statute1 and the Statute of
Frauds. The third reason involved Defendants negating an essential element of Plaintiff’s contractual
claim which required her to establish with reasonable definiteness all of the contract’s essential
elements. See Jamestowne on Signal, Inc., supra. The final reason the Trial Court concluded
summary judgment was appropriate was its conclusion that there was insufficient relevant and
admissible evidence for Plaintiff to carry her burden of proof.

                 In order for this Court to reverse the granting of summary judgment to Defendants,
Plaintiff must show that none of these four reasons formed an appropriate basis upon which to grant
summary judgment. Plaintiff challenges on appeal only the fourth reason and claims the “record is
clear that there was some agreement between the parties” and it “is unfathomable that a contract did
not exist between these parties.” The main problem with this argument is that the Trial Court never
held there was not some sort of an agreement between Plaintiff’s husband and H.Y. Woodson. In
fact, Mrs. Woodson readily admitted that there was some such agreement. Plaintiff’s argument on
appeal completely ignores the other conclusions of the Trial Court that: (1) the Dead Man’s Statute
precluded the admission of evidence pertaining to the agreement; (2) the agreement as a whole is
unenforceable under the Statute of Frauds; and (3) Defendants had negated an essential element of
Plaintiff’s claim which required her to establish all of the essential elements of the agreement.

               There is nothing in the record showing that Plaintiff ever argued to the Trial Court
that the Dead Man’s Statute did not preclude the admission of relevant evidence pertaining to the
agreement, that the Statute of Frauds did not render the agreement unenforceable or that any
exception to the Statute of Frauds applied, or that she indeed could establish all of the essential
elements of the agreement with reasonable definiteness. Plaintiff never filed any response to the
motions to dismiss or the motion for summary judgment. In her brief on appeal, Plaintiff neither
cites nor so much as mentions the Dead Man’s Statute or the Statute of Frauds. Accordingly, we
affirm the judgment of the Trial Court.

                Even though we affirm the granting of summary judgment to Defendants, this does
not necessarily mean that Plaintiff is not entitled to some sort of an accounting given the fact that
she has been making payments pursuant to an admitted agreement of some sort, even if that
agreement was unenforceable for various reasons. Under these circumstances Plaintiff should be
able to recoup the cost of any improvements to the property as well as the amount of the payments
to the extent these improvements/payments exceeded the fair market rental value of the house and


         1
            The Dead Man’s Statute was originally enacted during the 1869-1870 legislative session. The current version
of this statute is found at Tenn. Code Ann. § 24-1-203 and provides: “In 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. If a corporation is a party, this disqualification shall extend to its officers of every grade
and its directors.”



                                                            -10-
land. As set forth previously, Plaintiff made payments in the amount of $200 per month. In
September of 2002, Defendants filed a second set of requests for admissions asking Plaintiff to admit
that the monthly fair market rental value of the residence and premises was $200 from October 1,
1990 to October 1, 1994; $225 from October 1, 1994 to October 1, 1998; and $250 from October
1, 1998 to October 1, 2002. These Requests for Admission were filed almost eight months before
the first hearing on May 5, 2003. Pursuant to Tenn. R. Civ. P. 36.01, the requests for admissions
were deemed “admitted unless, within 30 days after service of the request, or within such shorter or
longer time as the court may allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the matter, signed by the party
or by the party's attorney ….” The record contains no response by Plaintiff to these requests for
admissions. Therefore, they are deemed admitted, and we can readily conclude that the amount of
the payments did not exceed the fair market rental value of the house and land. Unfortunately, we
do not know whether any improvements were made to the house and land over the years because this
never was presented as an issue to the Trial Court. Therefore, we affirm the Trial Court’s granting
of summary judgment to Defendants with the modification that the matter is remanded for the
limited purpose of determining whether any improvements were made to the house and land such
that Plaintiff would be entitled to a recovery for these improvements.

             Exercising our discretion, we decline to hold that Plaintiff’s appeal is frivolous or
award any damages.

                                             Conclusion

                The judgment of the Trial Court is affirmed as modified, and this cause is remanded
to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs
below. Costs on appeal are assessed against the Appellant, Helen Broyles, and her surety.




                                                        __________________________________
                                                        D. MICHAEL SWINEY, JUDGE




                                                 -11-
