                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 4, 2001 Session

                    HARRY M. PACK v. TINA LEWIN PONAK

                       Appeal from the Circuit Court for Lincoln County
                           No. C0000014      F. Lee Russell, Judge



                     No. M2000-02285-COA-R3-CV - Filed June 22, 2001


The Lincoln County Circuit Court granted the appellee’s motion for summary judgment allowing
the sale of real property held as joint tenants with the right of survivorship. We find, however, that
whether there is an agreement not to partition the property is a disputed question of fact. We reverse
the trial court and remand for further proceedings in accordance with this opinion.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Lincoln County Circuit Court
                                 Reversed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which D. MICHAEL SWINEY, J.
and DON R. ASH , SP . J joined.

Jerre Michael Hood, Winchester, Tennessee, for appellant, Tina Lewin Ponak.

Johnny D. Hill, Jr., Fayetteville, Tennessee, for appellee, Harry M. Pack

                                             OPINION

                                                  I.

        The parties resided in California, where appellant Tina L. Ponak served as appellee Harry M.
Pack’s caregiver. Sometime in 1993, they moved to Tennessee and purchased a parcel of real
property. The deed, dated April 29, 1993, transferred the real property to them as “joint tenants (and
not as tenants in common), the survivor taking . . . .”

       Appellant cared for appellee for more than nine years. In February of 2000 the appellee filed
a Complaint for Partition. The appellant filed an answer and counter-claim asserting that the parties
had an agreement that the property would not be sold and that it would ultimately become hers as
compensation for her services.
        The appellee filed a motion for summary judgment and attached a “Statement of Undisputed
Material Facts.” The unsworn statement simply recited the provisions of the deed and referred to
an affidavit of a real estate agent giving his opinion that the property could not be partitioned in kind.

        The appellant filed an unsworn response to the appellee’s statement, pointing out that the
parties’ agreement that the property be held and not sold was still a disputed fact. The trial judge
granted the motion for summary judgment.

                                                          II.

        Upon review of a grant of summary judgment, this Court must determine whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997). As this inquiry involves purely a question of law, our review is de novo without a
presumption of correctness. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); McClung v.
Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). Summary judgments are
appropriate only where there is no genuine issue of material fact relevant to the claim or defense
contained in the motion and the moving party is entitled to a judgment as a matter of law on the
undisputed facts. See Tenn. R. Civ. P. 56.03; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997);
Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Courts reviewing summary judgments must
view the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in the nonmoving party's favor. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993). In view of these standards, we turn now to the legal principles involved in this
appeal.

         In Bunch v. Bunch, No. 02A01-9705-CH-00106, 1998 WL 46217, at *3 (Tenn. Ct. App.
1998), this court held that a person holding title to land as a joint tenant with a right of survivorship
could, nevertheless, seek a partition under Tenn. Code Ann. § 29-27-101.1 We also held that a joint
tenant who participated in the creation of the joint tenancy was not estopped from seeking partition
unless the other joint tenants justifiably relied to their detriment on the acts of the joint tenant
seeking partition. But, in line with the courts of other states, we recognized that a joint tenant could,
by contract, give up the right to partition. That, it seems to us, is the position the appellant has taken
in this case, and whether such an agreement exists is still a disputed fact.

         In this case, the appellee has not even denied the allegation in the answer and counterclaim
that he promised to retain the property for the ultimate benefit of the appellant in exchange for her
promise to render services to him. Certainly, he has not provided any evidence negating the
existence of the agreement so that the burden of proof shifts to the appellant. As our Supreme Court
said in Byrd v. Hall, “[a] conclusory assertion that the non-moving party has no evidence is clearly
insufficient” to shift the burden to the non-moving party to produce its evidence of the fact on which
it relies. 847 S.W.2d 208 at 215 (Tenn. 1993). Since the record does not negate the existence of an


         1
          Bunch does not tell us how the proce eds shou ld be divided when the parties have a right of survivorship. It
appears to us that the division presents a very complicated problem.

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agreement that the property would not be sold, summary judgment allowing the sale for partition
should not be granted.2

        We reverse the summary judgment in favor of the appellant and remand the cause to the
Circuit Court of Lincoln County for further proceedings. Tax the costs on appeal to the appellee,
Harry M. Pack.




                                                            _________________________________________
                                                            BEN H. CANTRELL, PRESIDING JUDGE, M.S.




          2
           The appellant has filed a m otion to dismiss the case based on the fact that, post-trial, the appellee transferred
his interest to a third party. W e think this issue shou ld be pres ented to th e trial court o n rema nd. The refore, w e overru le
the mo tion filed in th is court.

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