                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 11, 2003 Session

       ROBERT M. OVERHOLT, M.D., ET AL. v. HUGH RAY WILSON

                       Appeal from the Chancery Court for Knox County
                          No. 140274-2   Daryl Fansler, Chancellor

                                     FILED MARCH 14, 2003

                                 No. E2002-01479-COA-R3-CV


In this suit, Plaintiffs Robert M. Overholt, Joe W. Black, and Michael D. Price sue Defendant Hugh
Ray Wilson, seeking possession of a portrait of long-time University of Tennessee football coach,
General Robert R. Neyland. The suit also sought injunctive relief as to a proposed sale of the portrait
by Mr. Wilson in connection with a bankruptcy sale of assets of a corporation owned by him. Mr.
Wilson’s sole defense of the suit was that it was barred by T.C.A. 28-3-105(2), the three-year statute
of limitations for recovery of personal property. The Trial Court submitted to the jury a single
question regarding the only material factual dispute, and upon receipt of the jury’s finding held that
the statute of limitations was not a viable defense and granted judgment in favor of the Plaintiffs.
Mr. Wilson appeals and raises four issues, hereinafter set out, for our consideration. We find that
they are without merit and affirm.


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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

David S. Wigler, Knoxville, Tennessee, for the Appellant, Hugh Ray Wilson

Timothy E. Irwin, Knoxville, Tennessee, for the Appellees, Robert M. Overholt, M.D., Joe W.
Black, M.D., and Michael D. Price

                                             OPINION


       Mr. Wilson’s issues are the following:

         I.      Whether the trial court erred as a matter of law in concluding that this
                 action was commenced within the applicable statute of limitation.
         II.     Whether the trial court erred in formulating the jury interrogatory.

         III.    Whether the trial court abused its discretion in overruling Defendant’s
                 objection to hearsay testimony of attorney Ed Cox.

         IV.     Whether the trial court abused its discretion in permitting improper cross
                 examination of Appellant about the legal effect of a stipulation, or whether
                 the judgment should be reversed to avoid “prejudice to the judicial
                 process.”

       Prior to the opening statements, the Trial Court advised the jury of the following stipulation:

                 All right. Ladies and gentlemen of the jury, the lawyers are going to give
         you their opening statements at this time. Prior to that I want to read again the
         stipulations or facts to which they have agreed in this case.

                It is agreed that the plaintiffs who are here are the proper parties to this suit
         and adequately represent any ownership rights which a corporation known as
         Football Memories, Incorporated, may or may not have in this lawsuit or in the
         painting.

                 It is also stipulated that the plaintiffs commissioned the painting and
         allowed it to be hung at the University of Tennessee but never granted any
         ownership interest in the painting to any person at the University of Tennessee or
         to the University of Tennessee itself.

                 They have further stipulated that the only question of fact remaining is
         whether the Plaintiffs’ claim is barred by the statute of limitations in this case.
         That is the legal issue that I told you about. There are certain time limits that are
         applicable here. You will make a decision regarding this conversation back in
         1993 and then, based upon your findings of fact, the Court will apply the law to
         determine whether or not the Plaintiffs’ claim is barred by time or is not.

       This was a jury trial insofar as the facts surrounding a certain telephone conversation between
Dr. Overholt and Mr. Wilson. Because the verdict of the jury was approved by the Trial Court, our
standard of review is whether there is material evidence to support the jury’s finding of fact. Tenn.
R. App. P. 13(d); Moss v. Sankey, 54 S.W.3d 296 (Tenn. Ct. App. 2001).

       We will accept as true the Appellants’ statement of facts as to the events leading to the
disputed telephone conversation:

                Dr. Overholt is a well-known Knoxville physician employed at the
         Allergy, Asthma and Sinus Center. He attended the University of Tennessee in


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            1959 through 1962 and played football for General Neyland. Johnny Majors was
            a teammate of his and also a fraternity brother.

                    Dr. Overholt commissioned three Paintings commemorating U.T. football
            events from artist Ron Villani, and made prints of the Paintings. The Paintings
            were called The General, The Stop1 and The Run.2 After Johnny Majors returned
            to the University of Tennessee, he and Overholt remained social friends. Dr.
            Overholt offered The General (hereinafter the “Painting”) to Majors for display
            in his office and had it delivered to the University of Tennessee.

                    Hugh Ray Wilson spent most of his adult life as a manufacturer’s
            representative for several sporting goods lines. As a sales rep, Wilson would visit
            athletic departments at universities, including the University of Tennessee. As far
            back as he can remember he started collecting memorabilia with the intention of
            opening a sports bar.

                    In approximately 1989, on one of his calls to the University of Tennessee,
            Appellant Wilson became aware of a large storage area that the fire marshal had
            given U.T. an ultimatum to empty. Wilson was taken down and shown this area
            and to this delight, there were quite a few things that he felt he would like to have.
            Appellant Wilson entered into an agreement with the University to furnish the
            labor and everything involved in cleaning out the area, in return for keeping what
            he didn’t carry to the dump or dispose of. Wilson incurred expenses for removing
            and cleaning this area, in that he paid some help and had dumping expenses. It
            took two days to clean out the room.

                    Appellant Wilson opened Hooray’s Sports Bar and Grill in 1991, and
            moved the Painting to that location. The Painting hung in a prominent place in
            plain view to the public at Hooray’s. The Painting was a focal point of the
            upstairs room and was hanging right behind a baby grand piano right next to the
            entrance doors to the area.

                   Over the years, Hooray’s held special functions for the U.T. athletic
            department on a regular basis. Coach Majors and other members of the Athletic
            Department came into this room where the Painting was hanging. Nobody ever
            asked for the Painting back before this lawsuit was brought. Nobody from U.T.


        1
                    Dr. Overholt described The Stop as “Billy McCannon being stopped when he played for L.S.U.” We
suspect this is a typographical error and that the correct name of the L.S.U. player was Billy Cannon.


        2
                   Dr. Overholt described The Run as “Johnny Butler running against Alabama in 1929.” We also suspect
this is a typographical error in that the correct year was 1939.



                                                        -3-
         ever asked Appellant Wilson how he got it. Two of the Plaintiffs, Mr. Price and
         Dr. Black also visited the Bar and never asked for the Painting back. When Coach
         Majors left the University in 1992 Dr. Overholt went to search for the Painting at
         U.T. on two or three different occasions, trying to find the Painting. When he
         finally located the Painting at Hooray’s in 1993, Overholt decided he had two
         alternatives. Number one was to try to get the picture back from Appellant
         Wilson, and number two was to seek legal advice and go about it the way that it
         is legally correct. Dr. Overholt decided to seek legal advice from Attorney Ed
         Cox.

       As recognized by the Court in its charge to the jury, the critical issue is whether Dr. Overholt
or Mr. Wilson accurately detailed their telephone conversation.

              Dr. Overholt’s Testimony Relative to the Telephone Conversation

         A.      Yes, Joe Black said, “You need to go talk to an attorney. It’s very
                 important that you do things legally.”

         Q.      What did you do next?

         A.      I talked with Mr. Ed Cox, an attorney at that time. I explained the
                 situation to Mr. Cox. I told him that the picture had finally been found.

                 You have to realize that we had been searching for this for a long period
         of time. I told him that I wanted to go about it the right way of getting the picture
         back in our hands. Mr. Cox said, “I will write a letter to Mr. Wilson and I think
         it would be a good idea if you called Mr. Wilson also.”

         Q.      Did you call?

         A.      I called Hugh Ray Wilson the next day.

         Q       Did you reach Mr. Wilson?

         A.      Yes, I did.

         Q.      Did you identify yourself?

         A.      Yes, I did. I told him I was Dr. Robert Overholt.

         Q       Did he question that you were Dr. Robert Overholt?

         A.      No.


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Q.     What did you tell Mr. Wilson?

A.     I told Mr. Wilson that I saw the picture in the newspaper and the painting
       of The General was a painting that Football Memories had commissioned
       and that it was ours, Mike Price, Joe Black and maybe Joe Thompson and
       maybe my children, that it was the corporation’s picture and that we were
       the owners of that.

        At that time Mr. Wilson stated, “Please, please don’t take that picture.”
He said, “That picture is part of my business. It’s part of my life. It’s part of
everything that I do. You can’t take that picture from me. I need that picture.
I’ve got a special room for it. The room is where we have special parties. It’s in
a room called The General. Please don’t take that picture from us.”

Q.     Did you respond?

A.     Yes, I did. I told him the picture was ours and I would have to go back
       and explain his desires to the other owners to see if they would acquiesce
       to that or see if they wanted the picture back in their hands.

        I talked to Joe Black. I told Joe Black then that Mr. Wilson had it in a
special place in an establishment, that we had no place for that picture, that we
had no specific plans at that time for that picture other than to increase its
awareness and I thought it would be perfectly acceptable to allow him to keep the
picture, to display the picture at the Hooray’s establishment.

        Joe Black disagreed. He said we needed to get that picture back in our
hands and not let anyone else have it, but he said he would acquiesce to my
feelings that it should be allowed to hang there.

     Mr. Wilson’s Testimony Relative to the Telephone Conversation

  Q. What was the first communication you had from Dr. Overholt about the
painting?

  A. I got a phone call and he said his name was Dr. Overholt, that I had an oil
painting that belonged to him of General Neyland. I told him I can’t have an oil
painting that belonged to him period, that I had an oil painting. I explained to him
how I got it, how I came by it.

   I was adamant. I didn’t beg anyone or anything. I was adamant. I explained
to him how I came by it, just as I explained it to you, the exact same description
and so forth. That hasn’t changed since that day.


                                        -5-
            Q. Did you tell him that you owned the painting?

            A.   Without any question, yes, sir.

        With regard to the first issue on appeal, the Trial Court submitted the following interrogatory
to the jury:

         The questions that you will be asked to decide in this case, ladies and gentlemen,
         is this: “Did Dr. Overholt, after the telephone conversation with Mr. Wilson in
         1993, know or should he have known that Mr. Wilson intended to claim the
         Painting as his and hold it against the claims of ownership by Dr. Overholt?”

        The jury answered this question in the negative, having obviously found that Dr. Overholt
consented for Mr. Wilson to keep the painting in his Sports Bar in accordance with his fervent
entreaty. We find this determination especially appropriate when Dr. Black, one of the owners of
the paintings, insisted when the portrait was found that the owners should proceed immediately to
reclaim it, but was persuaded by Dr. Overholt to permit it to stay with Mr. Wilson. Thus, the
Plaintiffs did not know that Mr. Wilson was claiming ownership of the painting until they learned
it was to be auctioned, which prompted the complaint in this case.

        We are convinced beyond peradventure that had Mr. Wilson in fact asserted ownership of
the painting in the telephone conversation with Dr. Overholt, a suit would have been initiated within
days thereafter.

       We conclude as to the first issue, that there is material evidence to support the jury’s verdict
and the Court’s determination based thereon, that the Statute of Limitations was not a bar.

        As to the second issue, counsel for Mr. Wilson contends that the question was inappropriate
and the Trial Court should have posed the following two questions that he proposed. It will be noted
that the question put by the Trial Court is substantially the same as the second one suggested by
counsel.

         1. During the conversation between Dr. Overholt and Mr. Wilson in 1993, did
         Mr. Wilson acknowledge or admit that Dr. Overholt owned the Painting? _____
         (yes) _____ (no)

         2. Did Dr. Overholt know, or should he reasonably have known, that a cause of
         action against Mr. Wilson existed in 1993? _____ (yes) _____ (no)

       As to the first question, it is not of any great significance whether Mr. Wilson acknowledged
the ownership by Dr. Overholt, but it is clear that under the stipulation Mr. Wilson did not own the
painting. Moreover, it may clearly be inferred if Dr. Overholt’s testimony is accredited, that
ownership by the Plaintiffs was at least tacitly acknowledged by Mr. Wilson.


                                                   -6-
      As to the third issue, Mr. Wilson contends that the testimony of Dr. Overholt’s first attorney
was improperly admitted as hearsay:

           Q. Was it your understanding, prior to sending that letter, that your client and
         the Defendant had talked prior to that time?

            MR. WIGLER: Objection, Your Honor. That is covered by -

            THE COURT: Overruled.

            A. I don’t know. I knew that at least sometime around the mailing of the
         letter. I’m not sure, Mr. Irwin, if it was before or after, but I knew sometime
         around the mailing of the letter that Dr. Overholt had spoken to Mr. Wilson.

          Q. After sending that initial letter, do you remember taking any further action
         with regard to the Painting, The General?

            A.   No sir. I do not.

            Q.   Why not?

            A. Because I did not feel it was necessary, that there was no dispute as to who
         owned the Painting; therefore, there wasn’t anything else to be done based on the
         facts as I knew them. (Emphasis in Mr. Wilson’s brief.)

        In the first place, we question whether the answers of Mr. Cox were inadmissible as hearsay.
All he was testifying to is that it was his understanding that there was no dispute as to the ownership
of the painting. We believe he was entitled to explain the reason he did not take further action
whether his understanding was true or not.

        Relative to the fourth issue, that it appears that counsel for the Plaintiffs spent an undue
amount of time questioning Mr. Wilson regarding his testimony–even to the very end of trial–that
he owned the paintings in contradiction of his stipulation. We do not believe, however, any error
in allowing extensive cross-examination in regard thereto, “more likely than not affected the
judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(a). Moreover,
it does not appear that counsel for Mr. Wilson moved for a mistrial based upon the extended cross-
examination of Mr. Wilson regarding his testimony, vis-a-vis the stipulation.

        In conclusion, we point out that even had Mr. Wilson been successful in this suit, ownership
of the painting would remain in the Plaintiffs. They, however, would be barred by the applicable
Statute of Limitations from asserting their ownership.




                                                 -7-
        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for such further proceedings, if any, as may be necessary. Costs of appeal are adjudged against Hugh
Ray Wilson and his surety.



                                              _________________________________________
                                              HOUSTON M. GODDARD, PRESIDING JUDGE




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