                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs March 31, 2003

      DWIGHT HUNT EX REL. JAMES W. DOTSON, ET AL. v. CARTER
                        COUNTY, ET AL.

                      Appeal from the Chancery Court for Carter County
                          No. 24754    Thomas J. Seeley, Jr., Judge

                                      FILED APRIL 29, 2003

                                  No. E2002-01339-COA-R3-CV


In this action to set aside a tax sale, the trial court dismissed the plaintiff’s complaint, finding that
he did not have standing or capacity to bring the action on behalf of the real parties in interest. We
affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., joined. D. MICHAEL SWINEY, J., filed a dissenting opinion.

John S. Taylor, Johnson City, Tennessee, for the appellants, Dwight Hunt, Individually and for the
use and benefit of James W. Dotson and Ted Ervin.

Mark S. Dugger, Elizabethton, Tennessee, for the appellee, Carter County.

John Banks, Elizabethton, Tennessee, for the appellee, Robert Franklin.

                                              OPINION

                                                   I.

        On July 14, 1983, Dwight Hunt (“the plaintiff”) and his wife conveyed their interest in certain
real property located in Carter County (“the property”) to James W. Dotson (“Dotson”) and his wife.
Almost twelve years later, on March 31, 1995, Carter County filed suit, seeking to sell the property
to collect delinquent taxes due on the property. The plaintiff, Dotson, and Ted Ervin (“Ervin”) were
named as defendants.1 Thereafter, Carter County attempted to serve notice of the delinquent tax suit
on the plaintiff, Dotson, and Ervin by both mail and publication. The property was purchased at a
tax sale on November 24, 1997, by Robert Franklin (“the property owner”).

         On April 7, 2000, the plaintiff filed a petition to set aside the tax sale, claiming that it was
void due to insufficient service of process. The petition was styled “DWIGHT HUNT, Individually
and for the use and benefit of JAMES W. DOTSON and TED ERVIN.” Thereafter, both the
property owner and Carter County answered the petition, denying the plaintiff’s allegations. The
property owner alleged as additional defenses, inter alia, that the plaintiff did not have standing to
bring this claim either individually or on behalf of Dotson and Ervin, and that the plaintiff had failed
to join indispensable parties, “in that the persons who have a sufficient interest in this property to
challenge the tax sale are not before the Court.”

        The plaintiff then filed a motion for summary judgment, and the property owner filed a
motion to dismiss for failure to state a claim. Along with his motion, the property owner filed both
his own affidavit and that of his attorney, as well as a copy of the deed in which the plaintiff
conveyed his interest in the property to Dotson. The two affidavits essentially stated that the plaintiff
did not have an interest in the property and that he had no authority to act on behalf of Dotson and
Ervin. A few days later, the plaintiff filed an affidavit, in which he stated that he had no notice of
the tax sale and that the “suit [by him] was brought with the knowledge and consent of James W.
Dotson and Ted Ervin, the other Plaintiffs in this suit.” However, the affidavit is devoid of any
statement that the plaintiff possessed an ownership interest in the property. Additionally, the
plaintiff filed the affidavit of Ervin, in which Ervin also stated that he had no notice of the tax sale.
Ervin goes on to state as follows:

                  This suit brought by Dwight Hunt, Individually and for the use and
                  benefit of James W. Dotson and Ted Ervin, has my full support and
                  all acts done by Dwight Hunt in furtherance of this are hereby ratified
                  and confirmed. To the extent required by law, this statement may be
                  taken as confirming, from the date of filing of the Complaint forward,
                  my joining in this lawsuit.

The record contains no affidavit from Dotson, nor is there anything in the record signed by Dotson.

       On February 12, 2001, the trial court heard the motions of the parties. One month later, the
court entered an order granting the property owner’s motion to dismiss and denying the plaintiff’s
motion for summary judgment. In so ruling, the court stated the following:

                  The Court FINDS that [the plaintiff] has neither standing nor capacity
                  to prosecute the Complaint . . . . [The plaintiff] has not possessed a


         1
          Included in the record is a warranty deed to Ervin dated October 30, 1981, which conveys some interest in the
property to Ervin.

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               legal or equitable interest in the [property] at any time material to this
               litigation. It is uncontroverted that [the plaintiff] conveyed all of his
               right, title and interest in and to said property to [Dotson] and wife,
               . . . on July 14, 1983, by Deed which is recorded in Deed Book 337,
               page 186, Register’s Office for Carter County, Tennessee, and there
               is no proof that [the plaintiff] retained or thereafter acquired any
               interest in the property.

               There is no showing that [the plaintiff] has the capacity to bring this
               lawsuit on behalf of [Dotson] and [Ervin]. There is no evidence that
               [Dotson] or [Ervin] lack capacity to file suit or that [the plaintiff]
               possesses legal status which would authorize [the plaintiff] to bring
               an action on their behalf. Neither [Ervin] nor [Dotson] have properly
               been made parties to this litigation. The Plaintiff filed the Affidavit
               of [Ervin] in January, 2001. The Court holds that this Affidavit is
               insufficient to place [Ervin] before the Court but even if this Affidavit
               might be construed as a pleading on behalf of [Ervin], the Defendants
               properly note that [Tenn. Code Ann. §] 67-5-2504(d) bars suit after
               three years from the time the land was sold for taxes, and that the tax
               sale occurred more than three years prior to the filing of the Affidavit.
               The Defendants have properly raised the issues of standing and
               capacity. No joinder or substitution of the real parties in interest has
               been attempted and it is appropriate to grant the Defendant’s Motion
               to Dismiss, which resolves all matters at issue and therefore is a Final
               Judgment for all purposes.

                                                   II.

           In evaluating the defendants’ motion to dismiss, the trial court considered the affidavits of
the property owner and his attorney, as well as a copy of the deed by which the plaintiff conveyed
his interest in the property to Dotson. Tenn. R. Civ. P. 12.03 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 of as provided in Rule
56, . . . .” Such being the case here, we must review the decision of the trial court under the standard
of Tenn. R. Civ. P. 56, which provides, in pertinent part, as follows:

                [T]he 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. . . .

Tenn. R. Civ. P. 56.04.


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        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); Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. Ct. 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. Tenn. R. Civ. P. 56.04; Byrd, 847
S.W.2d at 211.

                                                   III.

       On appeal, the plaintiff argues that the trial court erred in granting the property owner’s
motion to dismiss and in denying the plaintiff’s motion for summary judgment. The plaintiff
premises his argument on Tenn. R. Civ. P. 17.01, which provides as follows:

                Every action shall be prosecuted in the name of the real party in
                interest; but an executor, administrator, guardian, bailee, trustee of an
                express trust, a party to whose rights another is subrogated, a party
                with whom or in whose name a contract has been made for the benefit
                of another, or a party authorized by statute may sue in his or her own
                name without joining the party for whose benefit the action is
                brought; and when a statute so provides an action for the use or
                benefit of another shall be brought in the name of this State. No
                action shall be dismissed on the ground that it is not prosecuted in the
                name of the real party in interest until a reasonable time has been
                allowed after objection for ratification or commencement by, or
                joinder or substitution of, the real party in interest; and such
                ratification, joinder, or substitution shall have the same effect as if the
                action had been commenced in the name of the real party in interest.

The plaintiff asserts that, even if it is found that he has no interest in the property, the affidavit of
Ervin should have been sufficient under Tenn. R. Civ. P. 17.01 to supply the requisite ratification,
which, according to the plaintiff, would have allowed the matter to proceed.

         We believe the plaintiff’s reliance on this rule is misplaced. Tenn. R. Civ. P. 17.01 is
designed to insulate a suit brought by a party with some relationship to the underlying claim, who
is not the real party in interest, from a precipitous dismissal. That rule does not apply here because
the plaintiff has absolutely no connection to the rights asserted in the cause of action set forth in the
complaint. With respect to that cause of action, he is clearly an interloper. Furthermore, even if
Rule 17.01 were applicable to this case, we find that “a reasonable time has been allowed after


                                                   -4-
objection for ratification or commencement by, or joinder or substitution of, the real party in
interest.” This action was filed on April 7, 2000, and the motion to dismiss was filed on January 12,
2001. The order dismissing the complaint was not entered until March 12, 2001. Despite this
passage of time, no effort was made by the real parties in interest to properly and effectively assert
their alleged rights in this case.

         The plaintiff would have us believe that Ervin’s affidavit constitutes a sufficient assertion
of his rights in this case. We disagree. That affidavit merely states that Ervin ratifies and confirms
the plaintiff’s actions. Ervin does not set forth the basis for the plaintiff’s alleged authority to act
on Ervin’s behalf, nor does Ervin state that he lacks the capacity to file suit on his own behalf.
Further, Ervin made no attempt in this affidavit to be made a party to the action individually. Ervin’s
affidavit is simply insufficient to properly join him as a party in the instant case.

        The plaintiff also contends that, as Carter County did not raise any affirmative defenses in
its pleadings, such defenses were waived. Specifically, the plaintiff asserts that Carter County did
not raise the defense of capacity or that the action was not brought in the name of the real parties in
interest. However, Tenn. R. Civ. P. 7.02(1) permits a party to raise motions orally at a hearing or
trial. As the trial court, in its order dismissing the plaintiff’s complaint, stated that “[t]he Defendants
have properly raised the issues of standing and capacity,” we construe this to mean that Carter
County raised those defenses orally at trial. (Emphasis added). This issue is without merit.

        Because we find that the trial court properly dismissed the plaintiff’s action due to lack of
standing or capacity, we need not reach the issue of whether the trial court properly denied the
plaintiff’s motion for summary judgment. That issue is pretermitted.

                                                   IV.

        The judgment of the trial court is affirmed. This case is remanded to the trial court for
collection of costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the
appellant, Dwight Hunt.



                                                         _______________________________
                                                         CHARLES D. SUSANO, JR., JUDGE




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