                                                                                        06/21/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                April 19, 2018 Session

                  GILLIS ELLIOTT v. MIKE ROBBINS, ET AL.

               Appeal from the Chancery Court for Claiborne County
                   No. 18340 Elizabeth C. Asbury, Chancellor
                     ___________________________________

                           No. E2017-01440-COA-R3-CV
                       ___________________________________

This appeal arises from an action where the plaintiff sought to reform a deed that did not
transfer a disputed acre of property to him. The plaintiff alleged that a mutual mistake
had occurred and that both plaintiff and defendants had intended for the disputed acre to
be sold. The trial court held that the mutual mistake existed and that the error was clear
and convincing enough to allow for reformation of the deed. The defendants appeal. We
affirm the decision of the trial court.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Mike Robbins.

Treva Robbins, New Tazewell, Tennessee, pro se appellant.

Brennan M. Wingerter, Knoxville, Tennessee, and Lee Dan Stone III, Tazewell,
Tennessee, for the appellee, Gillis Elliott.

                                       OPINION

                                  I.     BACKGROUND

       Mike Robbins (“Mr. Robbins”) and Treva Robbins (“Ms. Robbins”) jointly owned
32.7 acres of real estate at 179 Hatfield Lane in Tazewell, Tennessee (the “Property”)
from September 18, 1996, to May 23, 2013. Mr. Robbins and Ms. Robbins (collectively
“Sellers”) purchased the Property from Tilmon and Kathleen D. Hatfield in two separate
transactions on September 18, 1996. The initial 31.7 acres were purchased for $8,828,

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and a separate acre was bought for $46,172. Both pieces of land were separately deeded
to Sellers and originally considered distinct properties by the Claiborne County Assessor
of Property. The couple built a new residence on the 31.7 acres, while a well and a
mobile home unsuitable for living remained on the single acre. A Claiborne County tax
map included both plats of land as a single, combined tract. In a 2007 application to
reduce their tax burden, Sellers stated their Property as a combined 32.7 acres. After a
fire destroyed the couple’s new home. Mr. Robbins and Ms. Robbins did not rebuild on
the Property and later lived elsewhere. Mr. Robbins filed a complaint for divorce against
Ms. Robbins in November 2012. The divorce complaint stated that they owned “33
acres” together and did not distinguish the two pieces of land. Ms. Robbins admitted the
“33 acres” statement was true in her answer to the divorce complaint.

       As the divorce proceedings continued, Sellers sought to sell the Property. Their
son had been jailed on a charge of statutory rape, and the sale of the Property would fund
his $50,000 bond and pay out additional judgment liens and delinquent taxes. Mr.
Robbins asked his neighbor Boyd Mason (“Mr. Mason”) about finding someone who
would buy the Property. Mr. Mason told Mr. Robbins that Gillis Elliott (“Mr. Elliott”)
once said that he wanted to buy the Property if it ever became available. After Mr.
Robbins and Mr. Mason went to Mr. Elliott’s home to inform him that the Property was
available to purchase, the three men then drove to the Property and examined it. Mr.
Robbins and Mr. Elliott went to the highest point of the Property so Mr. Robbins could
show Mr. Elliott its boundaries. Mr. Elliott asked where the septic tank and well were
located, to which Mr. Robbins replied that the septic tank was at the front of the house
and the well was near the old trailer at the bottom of the hill. As Mr. Robbins described
the Property to Mr. Elliott, it ran from “from the road to the river,” beginning along
Harbor Road in Claiborne County and widening as it moved north with its wooded border
along the Powell River. Mr. Elliott learned that a 10-foot right of way existed that
connected to a neighbor’s property and that the Property line was fenced along the Powell
River. Mr. Mason testified that he heard Mr. Robbins tell Mr. Elliott that the Property
ran mostly “from the road to the river.” No mention was made of a separate acre or an
offset during the conversation between Mr. Robbins and Mr. Elliott, even when they
discussed the well located on the disputed acre. A fence surrounded by overgrown plants
was in place near the disputed acre, but the fence covered more than the entire acre and
could not be clearly seen by Mr. Elliott as he examined the Property. Mr. Elliott showed
interest in buying the Property, which he believed included the 32.7 acres on both plats.

       Mr. Robbins testified at trial that he was willing to sell if Mr. Elliott would deed
him some of the wooded acres in the back of the Property once his son’s legal troubles
ended in the future. However, Mr. Robbins’ claim was denied by Mr. Elliott, not
referenced in the trial court’s ruling, and not argued by any party on appeal. No written
agreement was drafted to memorialize the parties’ discussion, which Mr. Elliott said was
not unusual for him and the way he had previously purchased real estate. Subsequent to


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the discussions, Mr. Elliott posted as bond a separate home that he owned in order to gain
the release of Mr. Robbins’s son from jail.

        Before the sale was closed, Mr. Elliott began work to improve the Property. Mr.
Elliott hired two of Mr. Robbins’s sons to help him with the improvements, some of
which occurred on the disputed acre. Mr. Robbins’s sons did not discuss the status of the
disputed acre with Mr. Elliott at that time. During this period, Mr. Elliott also asked
James Estep III, the attorney handling the sale, to conduct a title search of the Property.
A title opinion dated May 22, 2013, related that the land consisted of 31.7 acres. The
Property was not formally surveyed before closing, and Mr. Elliott did not examine prior
surveys before the sale. On May 23, 2013, Mr. Elliott purchased the Property from
Sellers for $60,000. The land deeded to Mr. Elliott included the 31.7 acres that Sellers
received from the Hatfields in September 18, 1996. The deed did not include the
separate, disputed acre purchased separately by Sellers. Mr. Elliott said that he did not
know the exact acreage of the Property when he purchased it and did not read the deed
before or during the closing. When describing the Property, the deed referenced both the
original deed of 31.7 acres and the tax map that stated the Property was 32.7 acres. Three
months later, Sellers completed their divorce agreement. The agreement did not
reference or distribute the disputed acre to either party.

       As the new owner, Mr. Elliott continued work on the disputed acre, which
included building a well house, clearing the land, and graveling the road on the disputed
acre. Mr. Elliott also built a new residence using the basement of the house that was
destroyed by the fire. Two of Mr. Robbins’s sons continued to help Mr. Elliott with his
work. Mr. Elliott believed that the 32.7 acres belonged entirely to him until he learned
about Mr. Robbins’s claim. Mr. Elliott confirmed through tax records that a second deed
existed for the disputed acre. Sellers later claimed that they had reserved the disputed
acre as their son’s inheritance. Sometime after this development, Mr. Robbins, his son,
and a distant relative returned to the Property and erected a fence around the disputed
acre using posts and white rope. Mr. Elliott later tore the fence down and continued to
build on the disputed acre. Upon learning about the second deed, Mr. Elliott went to Ms.
Robbins’s residence and offered to pay her $2,000 to sign a quitclaim deed and transfer
her interest in the disputed acre to him. Ms. Robbins refused to sign the deed after
learning that Mr. Robbins would give her $3,000 not to sign document. After hearing
this, Mr. Elliott told Ms. Robbins that he would “see [her] in court.”

       On September 18, 2014, Mr. Elliott filed a complaint against Sellers to establish
ownership of the disputed acre. Initially, Mr. Elliott alleged that Sellers misrepresented
the Property boundaries to him and that Mr. Elliott relied on their misrepresentations to
purchase the land. As relief, Mr. Elliott requested that the disputed acre be divested from
Sellers and vested in him through a quitclaim deed. Mr. Elliott moved for a default
judgment after Sellers failed to provide a timely answer, but Sellers were granted a time
extension to draft and file a response. In an answer, Mr. Robbins stated that the disputed

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acre was never intended to be sold with the other parts of the Property. Mr. Robbins
further stated that any oral agreement to transfer the entire Property was not written down
and therefore unenforceable through the Statute of Frauds. Mr. Robbins denied any
representation was made to Mr. Elliott about the boundaries of the disputed acre and
claimed that a title search could easily determine the existence of the separate deed
concerning the acre.

       On March 10, 2015, Mr. Elliott filed a motion to amend his complaint to include
allegations of mutual mistake and fraud concerning the description of the Property by
Sellers. After the trial court granted the motion, Mr. Robbins filed a motion for summary
judgment alleging that an oral agreement occurred which was barred by the Statute of
Frauds. Mr. Elliott subsequently responded, stating that the two pieces of land were
combined into the single Property by the tax assessor’s office and that the deed was given
in error through mutual mistake or fraudulent misrepresentations. On November 6, 2015,
Mr. Robbins filed a counter-complaint that alleged that the oral agreement included a
transfer of five acres from Mr. Elliott to Mr. Robbins upon the conclusion of the legal
matters of Mr. Robbins’s son. Mr. Robbins accused Mr. Elliott of abandoning the
agreement and requested that the five acres be deeded to him as relief. Mr. Elliott denied
the allegations and moved to dismiss the counter-complaint in a separate answer. Mr.
Robbins filed an answer to Mr. Elliott’s amended complaint in which he denied intending
to convey the disputed acre until he received the five acres from Mr. Elliott.

       The trial was held on May 23, 2017. After Mr. Elliott’s argument, the trial court
denied Mr. Robbins’ “motion to dismiss,” which both parties later considered as a motion
for a directed verdict. After all parties’ arguments were made, the court found a mutual
mistake had occurred and entered a judgment in favor of Mr. Elliott. The trial court
found through clear and convincing evidence that both parties believed that the Property
included the 32.7 acres. Once the mistake occurred, the court concluded that Mr.
Robbins “took advantage of that” to try to get greater value out of the situation. The trial
court held that the deed transferring the Property from Sellers to Mr. Elliott should be
reformed to include the disputed acre. A written order was later filed on June 20, 2017.
This timely appeal followed.

                                       II.     ISSUES

      We consolidate and restate the issues raised on appeal by defendants as
follows:

       1.     Whether the trial court erred in reforming a deed based on mutual
       mistake or fraud when Sellers sold the Property to Mr. Elliott without
       discussing the disputed land and did not raise the property dispute until
       months after the sale.


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      2.    Whether the trial court erred in denying a motion for summary
      judgment and a motion to dismiss when Mr. Elliott argued against both
      motions and the court decided the case on its merits.

                             III.    STANDARD OF REVIEW

        An appellate court shall review findings of fact in civil, non-jury actions on a de
novo basis. Tenn. R. App. P. 13(d). Unless the preponderance of the evidence suggests
otherwise, a review of the findings of fact shall be accompanied by a presumption of
correctness. Id. Questions of law in civil actions are also reviewed through a de novo
standard, “according no deference to the conclusions of law made by the lower courts.”
S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). A
trial court’s assessment of the credibility of a witness shall not be re-evaluated unless
contrary evidence is clear and convincing. Wells v. Tennessee Bd. of Regents, 9 S.W.3d
779, 783 (Tenn. 1999).

                                    IV.   DISCUSSION

                                      Mutual Mistake

       Courts must interpret contracts and deeds as written and cannot draft new
contracts for parties who have already written one. Sikora v. Vanderploeg, 212 S.W.3d
277, 286 (Tenn. Ct. App. 2006). However, a court may reform or correct a mistake in an
agreement “so that it fully and accurately reflects the agreement of the parties.” Lane v.
Spriggs, 71 S.W.3d 286, 289 (Tenn. Ct. App. 2001); see also Lebo v. Green, 426 S.W.2d
489, 494 (Tenn. 1968). A chancery court may reform and correct errors in a deed when
the errors were made by mutual mistake or unilateral fraud. Wallace v. Chase, No.
W1999-01987-COA-R3-CV, 2001 WL 394872 at *3 (Tenn. Ct. App., Apr. 17, 2001). A
mistake occurs when an action would not have happened but for “ignorance,
forgetfulness, advertence, mental incompetence, surprise, misplaced confidence, or
imposition….” Town of McMinnville v. Rhea, 316 S.W.2d 46, 50 (Tenn. Ct. App. 1958).
The doctrine of reformation is only appropriate when the intent of both parties is clear
and the same. Hunt v. Twisdale, No. M2006-01870-COA-R3-CV, 2007 WL 2827051, at
*8 (Tenn. Ct. App., Sept. 28, 2007). “Because the law strongly favors the validity of
written instruments, a person seeking to reform a written contract must do more than
prove a mistake by the preponderance of evidence…. the evidence of mistake must be
clear and convincing.” Sikora, 212 S.W.3d at 287. A mistake can occur through the
expression of an agreement, or when one or both parties falsely believe that the signed
contract reflects a previously-made agreement. Chandler v. Charleston Volunteer Fire
Dep’t., No. W2011-00322-COA-R3-CV, 2011 WL 4026844 at *4 (Tenn. Ct. App., Sep.
13, 2011); Sikora, 212 S.W.3d at 287. To reform an agreement because of mistaken
expression, a party must present clear and convincing evidence that proves:


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       (1)    the parties reached a prior agreement regarding some aspect of the
       bargain;

       (2)    they intended the prior agreement to be included in the written
       contract;

       (3)    the written contract materially differs from the prior agreement; and

       (4)   the variation between the prior agreement and the written contract is
       not the result of gross negligence on the part of the party seeking
       reformation.

Sikora, 212 S.W.3d at 287-88. Gross negligence can occur when a party’s mistake
happens through a failure to act in good faith or without reasonable standards of fair
dealing. Id., 212 S.W.3d at 290; see also Payne v. First Cmty. Bank (In re Payne), 523
B.R. 560, 574 (Bankr. E.D. Tenn. 2014) (“[I]nattention alone will not defeat the
[plaintiff’s] argument.”). A failure to find a drafting error does not prevent reformation.
Rentenbach Eng’g Co., Constr. Div. v. Gen. Realty Ltd., 707 S.W.2d 524, 527-28 (Tenn.
Ct. App. 1985). One party’s denial of the existence of an agreement or a mistake does
not automatically bar the reformation of a contract. Sikora, 212 S.W.3d at 288;
Chandler, 2011 WL 4026844 at *4.

        In the present case, the parties’ initial discussions and later actions indicate that an
agreement existed that differed from the final transaction. According to the trial court’s
findings, Mr. Robbins generally described the Property to Mr. Elliott and did not mention
the disputed acre in their conversation. While a fence existed on the Property, it did not
surround the disputed acre in a way that clearly separated it from the rest of the land.
Before the Property closed, Mr. Elliott began making improvements on the land,
including on the disputed acre. Two of Mr. Robbins’s sons also worked for Mr. Elliott
on the Property and never mentioned the disputed acre directly to Mr. Elliott. Later that
year, Sellers failed to mention or divest the disputed acre when completing their divorce.
When Mr. Elliott attempted to give $2,000 to Ms. Robbins to quitclaim her interest in the
disputed acre, she declined after Mr. Robbins offered to pay her $3,000 not to sign the
deed. For these reasons, the trial court found not only that both parties had intended to
sell the disputed acre, but also that Mr. Robbins attempted to take advantage of the
situation and obtain more money or land to give up the claim for the disputed acre. No
clear and convincing evidence is present to question the trial court’s assessment of Mr.
Robbins’s credibility, and this court should consider that assessment when evaluating
these factors. The lack of specificity in describing the Property and lack of an objection
to the development of the disputed acre are sufficient to show that an initial agreement
existed to grant the entire 32.7 acres to Mr. Elliott.



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       The actions following the sale of the Property, including further development of
the land, Sellers’ failure to address the disputed acre in the divorce, and the effort to
prevent the land from being quitclaimed, indicate that the parties intended the full 32.7
acres to be sold as described in the initial agreement. The final agreement as outlined in
the deed did not transfer the entire Property to Mr. Elliott and is materially different from
the initial agreement. At the time of the sale, the parties appeared to act in good faith
toward each other and completed the sale with an apparently inadvertent mistake. See
generally In re Payne, 523 B.R. at 574 (holding that mistakes are not the result of gross
negligence when “there was no evidence to suggest the errors were anything other than
inadvertent”); Sikora, 212 S.W.3d at 290. Although the error occurred through the
understanding of the deed, the failure to find the error does not itself constitute gross
negligence. Without the presence of gross negligence, the difference between the initial
agreement and final deed is sufficient to establish a mutual mistake and allow the deed to
be reformed as ordered by the trial court. Because a mutual mistake exists, this court has
no need to evaluate Mr. Elliott’s claim of unilateral fraud in the present case.

        Sellers argued that Mr. Elliott failed to prove that any mistake in the present case
was mutual, whether through clear and convincing evidence or otherwise. To prove a
mutual mistake occurred that allows for reformation, a party must present clear and
convincing evidence that the mistake occurred. Sikora, 212 S.W.3d at 287. Clear and
convincing evidence must show that the facts asserted are highly likely to be true and that
no serious or substantial doubt exists about the validity of the court’s conclusions. Teter
v. Republic Parking Sys., 181 S.W.3d 330, 341 (Tenn. 2005) (citing Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Based on the facts referenced above, the
trial court did not err in finding clear and convincing evidence of a mutual mistake as
necessary to alter the deed. By not acknowledging the disputed acre on the Property
while discussing the sale with Mr. Elliott, Mr. Robbins gave no indication that the
disputed acre would be held out from the sale. Neither Mr. Robbins nor Ms. Robbins
claimed the Property when finalizing their divorce or paid taxes on the disputed acre after
it was sold. The evidence showed that Sellers very likely intended to give the disputed
acre to Mr. Elliott at the time of the sale. The court’s findings provide no reason to doubt
whether its conclusions were correct or not. Therefore, the trial court did not err in
finding clear and convincing evidence of the mutual mistake and allowing the
reformation to occur.

       Alternatively, Sellers challenged the existence of a mutual mistake, arguing that
the case law relied upon by the trial court only supports reformation when both parties
acknowledge the mistake. While the parties in Sipes both admitted to mutual mistake,
this court also described reformation through mutual mistake and fraud as “well settled
law in this state.” Id., No. W2015-01239-COA-R3-CV, 2017 WL 417222 at *4, (Tenn.
Ct. App., Jan. 31, 2017) (quoting Bank of Am., Nat’l Ass’n v. Meyer, No. M2014-01123-
COA-R3-CV, 2015 WL 1275394, at *3 (Tenn. Ct. App., Mar. 17, 2015)). The law
described by Sipes and Bank of America cites many of the cases addressed above and

                                            -7-
states that reformation is appropriate when mutual mistake exists and the intent of both
parties is clear and the same. See Wallace, 2001 WL 394872 at *3; Hunt v. Twisdale,
2007 WL 2827051, at *8. However, the case law also provides that reformation can
occur even when one party denies that an agreement existed or that a mistake occurred.
Sikora, 212 S.W.3d at 288. Thus, even though the facts in Sipes differ from the present
case, the law cited by the court’s opinion does not. The trial court did not err in using the
case in its reasoning.

       Additionally, Sellers argued that mutual mistake and fraud did not occur because
Mr. Elliott admitted to not reading the deed before closing the sale of the Property. In
doing so, Sellers referenced a case recently decided by this court that found no mutual
mistake when “the signors did not appreciate all the implications of a life estate” inserted
into a quitclaim deed. Stokely v. Stokely, No. E2017-00433-COA-R3-CV, 2018 WL
485998 at *6 (Tenn. Ct. App., Jan. 19, 2018). In that case, the appellants sought relief
after granting a life estate to a relative without fully understanding the effects of the
grant. Id., 2018 WL 485998 at *2. This court affirmed the ruling of the trial court, which
held that the deed could not be reformed when the signors were mistaken about the
implications of creating a life estate. Id., 2018 WL 485998 at *6. In the present case, the
parties’ signed the agreement with the correct understanding of what it would do, but
with a mistaken belief of what it would affect. The parties here knew that the deed would
transfer ownership of the Property, but mistakenly believed that the deed covered 32.7
acres instead of the 31.7 acres it described. Whether Mr. Elliott read the deed or not, his
mistake was rooted in his reliance on the land description given to him by Mr. Robbins
when they first discussed selling the Property. Unlike the facts presented in Stokely, the
mistake occurred here because of the parties’ understanding of what was part of the
Property, not what the deed itself would accomplish. Because of this, the mutual mistake
would still serve as a valid reason to reform the deed, as held by the trial court.

       Further, Sellers challenged whether the reformation of the deed is a valid remedy
for mutual mistake when Mr. Elliott prayed for the trial court to divest Sellers’ interest in
the disputed acre to him in the original complaint. Sellers argued the trial court
erroneously applied the remedy when it was not properly pleaded under Rule 8 of the
Tennessee Rules of Civil Procedure. See generally Jasper Engine and Transmission
Exchange v. Mills, 911 S.W.2d 719, 720 (Tenn. Ct. App. 1995). In Jasper Engine, a
petition for a writ of certiorari failed to include sufficient facts to be considered by a
court, even when “coupled with the conclusory allegation that mutual mistakes have been
made.” Id. However, a pleading is only required to contain a “short and plain statement
of the claim showing that the pleader is entitled to relief” and a separate “demand for
judgment for relief the plaintiff seeks.” Tenn. R. Civ. P. 8.01. Further, courts have
considered reformation to be a valid remedy when judges are seeking to determine the
ownership of certain real estate. See Kramer v. Coleman, No. 03A01-9601-CH-00033,
1996 WL 283065 at *2 (Tenn. Ct. App., May 30, 1996); see also Continental Land. Co.
v. Investment Props. Co., No. M1998-00431-COA-R3-CV, 1999 WL 1129025 at *8

                                            -8-
(Tenn. Ct. App., Dec. 10, 1999). In the present case, Mr. Elliott’s amended complaint
alleged that mutual mistake occurred based on the facts stated in the original complaint.
Further, Mr. Elliott requested and received approval from the court to alter the complaint
to include the mutual mistake claim. See Tenn. R. Civ. P. 15.01. While Mr. Elliott
wanted to establish ownership of the Property through divestment, the court did not err in
using reformation as the remedy to establish Mr. Elliott’s ownership through mutual
mistake. Whether as reformation or divestment, the trial court’s order to declare Mr.
Elliott as the owner of the disputed acre provided sufficient relief as requested in the
amended complaint.

                                    Statute of Frauds

       Sellers argued that any agreement that would grant Mr. Elliott the disputed acre
would be invalid through the Statute of Frauds. In Tennessee, an oral contract for the
sale of land is invalid unless the agreement or promise was later made in writing by the
parties involved in the sale. Tenn. Code Ann. § 29-2-101(a)(4). The deed that should be
reformed based on mistake, however, does not disturb the Statute of Frauds. See Lane,
71 S.W.3d at 291; see also First Nat’l Bank v. Ashby, 2 Tenn. App. 666, 669 (Tenn. Ct.
App. 1925). Parol evidence can be admitted when determining whether a mistake
occurred in the formation of a contract. Rentenbach Eng’g Co., Constr. Div., 707 S.W.2d
at 527; see also Textron Fin. Corp. v. Powell, No. M2001-02588-COA-R3-CV, 2002 WL
31249913 at *5 (Tenn. Ct. App., Oct. 8, 2002) (“When parol evidence is offered not to
vary or disavow the terms of the contract, but to show an alleged fraud or mistake, this
Court is hesitant to exclude the evidence.”). In the present case, the presence of a mutual
mistake would allow the deed to be reformed without invoking the Statute of Frauds.
Further, the parol evidence would be admitted when evaluating the written deed and the
potential mistake written in it, not the conversation and oral agreement that Mr. Elliott
and Mr. Robbins discussed at the Hatfield Lane property. See Rentenbach Eng’g Co.,
Const. Div., 707 S.W.2d at 526-27; City of Lawrenceburg v. Maryland Cas. Co., 64
S.W.2d 69, 73-74 (Tenn. Ct. App. 1933). The trial court did not err by not imposing the
Statute of Frauds in the present case.

                                    Pre-trial Motions

       Finally, this court must determine whether this trial court was correct in denying
Mr. Robbins’s two motions before the case was decided on its merits. On their faces, the
motions separately requested summary judgment and a directed verdict, though the
directed verdict motion was described as a “motion to dismiss.” An appellate court may
not revisit a motion for summary judgment when its denial was based on a genuine issue
of material fact and the case was eventually decided on its merits. Tate v. Monroe Cnty.,
578 S.W.2d 642, 644 (Tenn. Ct. App. 1978). Motions for directed verdicts also face
limited appellate review after the completion of a trial. Id., see also Mullins v. Precision
Rubber Prods. Corp., 671 S.W.2d 496, 498 (Tenn. Ct. App. 1984). Here, Mr. Elliott

                                            -9-
sufficiently pleaded allegations of mutual mistake and fraud and presented a sufficient
issue of material fact that required a trial court to judge the case on its merits. The trial
court was correct in denying both motions and allowing the case to continue.


                                   V.      CONCLUSION

      The judgment of the trial court is affirmed, and the case is remanded for further
proceedings as necessary. Costs of the appeal are taxed to appellants, Mike Robbins and
Treva Robbins.


                                                     _________________________________
                                                           JOHN W. MCCLARTY, JUDGE




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