                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                        October 5, 2012 Session Heard at Athens

                IN RE: ESTATE OF RAYMOND L. SMALLMAN

           Appeal by Permission from the Court of Appeals, Eastern Section
                       Chancery Court for Hamblen County
            No. 2009P120, 2009-440    Thomas R. Frierson, II, Chancellor


                No. E2010-02344-SC-R11-CV - Filed February 26, 2013




W ILLIAM C. K OCH, J R., J., concurring in part and dissenting in part.

       I concur with the Court’s decision to remand this case for a new trial because the trial
court erred by admitting into evidence testimony regarding Ms. Caraway’s real estate
holdings and regarding the execution and substance of Ms. Caraway’s late mother’s will.
However, I disagree with the Court’s refusal to address Ms. Caraway’s challenge to the
standing of Mr. Smallman’s sons to contest the validity of her marriage to their father and
with the Court’s decision that Ms. Caraway may not raise the standing issue on remand.

       Standing is an indispensable element of a plaintiff’s case. See Petty v.
Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App. 2002). Under Tennessee law,
when a plaintiff lacks standing, the courts are precluded from adjudicating the plaintiff’s
claims. ACLU v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). Thus, “no case or controversy
is presented where the plaintiff lacks standing to sue.” Mayhew v. Wilder, 46 S.W.3d 760,
767 (Tenn. Ct. App. 2001).

        A case must be justiciable at every stage of the proceeding, and if a case is not
justiciable, it should be dismissed. Because a plaintiff’s standing is integrally related to the
proper exercise of judicial power, I would find that a challenge to standing is one of those
issues that may be raised for the first time on appeal under Tenn. R. App. P. 13(b).
Accordingly, I believe that this Court can and should address the standing question in this
case.

       In addition, a challenge to standing is not an affirmative defense under Tenn. R. Civ.
P. 8.03. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). Accordingly, it is not
waived if it is not properly pleaded. Because this case is being remanded for a new trial, I
see no sound basis for preventing Ms. Caraway from challenging the standing of Mr.
Smallman’s sons to contest the validity of her marriage to their father. The proceedings will
not be unduly delayed and the parties will not be prejudiced by a full airing of this issue in
the trial court.


                                                   ______________________________
                                                   WILLIAM C. KOCH, JR., JUSTICE




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