text:
    Davida EDWARDS, Claimant/Appellant, v. DISMAS HOUSE OF ST. LOUIS, and Division of Employment Security, Respondents.
    No. ED 86959.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 20, 2005.
    Dismas House of St. Louis, St. Louis, MO, respondent acting pro se.
    Davida Edwards, Hazelwood, MO, appellant acting pro se.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent Labor and Industrial Relations Commission.
   GLENN A. NORTON, C.J.

Claimant Davida Edwards appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing her application for review in her unemployment case. We dismiss her appeal, because she did not file her application for review with the Commission in a timely fashion, depriving the Commission and this Court of jurisdiction over her case.

A deputy of the Division of Employment Security denied Claimant’s application for unemployment benefits. Claimant sought review of that decision with the Appeals Tribunal, which affirmed the deputy’s decision. Claimant filed an application for review with the Commission, which dismissed her application as untimely. Claimant has now appealed to this Court.

Section 288.200.1, RSMo 2000, provides a claimant in an unemployment case with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. The statute provides no exceptions to this time requirement. Indeed, the failure to file a timely application for review divests the Commission of jurisdiction and it can only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D.2003). In addition, this Court’s jurisdiction is derived from that of the Commission, and if it does not have jurisdiction, then neither do we. Id.

The Appeals Tribunal mailed its decision to Claimant on June 10, 2005. Her application for review was due thirty days later, on Monday, July 11, 2005. Section 288.200.1; Section 288.240, RSMo 2000. Claimant filed her application for review almost one month later, on August 8, 2005, and it was untimely. Without a timely application for review, the Commission, and thus, this Court, are without jurisdiction.

We issued an order directing Claimant to show cause why her appeal should not be dismissed. Claimant has not filed a response. As stated, there is no mechanism for allowing an untimely application for review in an unemployment case. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Our only recourse is to dismiss the appeal.

The appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clarence J. JENNEWEIN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86127.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.
    Lisa M. Stroup (Public Defender), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant Clarence J. Jennewein (“Jen-newein”) appeals from the judgment of the Circuit Court of St. Charles County,.denying his Rule 24.035 Motion for Post-Conviction relief, after he pled guilty to three counts of Child Molestation in the First Degree, in violation of Section 566.067 RSMo. (2000). The Honorable Nancy L. Schneider sentenced Jennewein to concurrent five-year terms of imprisonment for two counts, and then to a consecutive term of five years for the third count.

Jennewein brings two claims of error. First, Jennewein argues that the motion court erred in denying his Rule 24.035 motion because he was denied the effective assistance of counsel, in that his appointed counsel failed to inform him that if he pled guilty to first degree child molestation charges he would be obligated to register as a “sex offender” upon his release from prison. Second, Jennewein argues that he was denied the effective assistance of counsel because his appointed counsel failed to inform him that he would not be considered for parole unless he completed the Missouri Sex Offenders’ Program. Jennewein argues that he would not have pled guilty had he known of these consequences.

We have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b)(2).


text:
    Stepphion SUTTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86095.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.

      Maleaner R. Harvey, St. Louis, MO, for Appellant.
    Deborah Daniels, Karen L. Kramer, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Stepphion Sutton (hereinafter, “Mov-ant”) appeals from the denial of his Rule 24.035 post-convietion motion without an evidentiary hearing. Movant pleaded guilty to one count of murder in the second degree, Section 565.021.1(2) RSMo (2000). Movant was sentenced to serve eighteen years’ imprisonment. Movant subsequently filed a timely motion for post-conviction relief pursuant to Rule 24.035, which the motion court denied without a hearing.

Movant raises two points on appeal. First, Movant argues the motion court clearly erred in finding his guilty plea complied with Rule 24.02(e) in that a sufficient factual basis did not exist prior to the court accepting Movant’s guilty plea. Second, Movant claims his trial counsel was ineffective for advising him to plead guilty when the State failed to establish a sufficient factual basis for the plea.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion court’s decision was not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Thomas J. COSTELLO, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85665.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 20, 2005.
    Richard P. Hereford, Clayton, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Thomas Costello (“Movant”) appeals from the judgment of the Circuit Court of St. Charles County denying his Rule 29.15 Motion for Post-Conviction Relief. In his appeal, Movant argues that the motion court clearly erred when it failed to find that the attorney who represented him at his jury trial rendered ineffective assistance.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Rodney F. JAEGERS, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 85829.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Zainab S. Smith, Asst. Atty. General, St. Louis, MO, for Appellant.
    Douglas W. Hennon, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

The Missouri Director of Revenue (Director) appeals from the trial court’s judgment reinstating Rodney Jaegers’s (Driver) driving privileges and setting aside the Director’s revocation of Driver’s driving privileges for one year following his refusal to submit to a breath test after being arrested for suspicion of driving while intoxicated. The Director contends the trial court erred in setting aside the Director’s revocation and reinstating Driver’s driving privileges because Driver refused to submit to a breath test and the Director met her burden under Section 577.041, RSMo 2000.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    ALLIANZ INSURANCE COMPANY, Commonwealth Insurance Company, and TIG Insurance Company, Plaintiffs/Respondents/Cross-Appellants, v. LEXINGTON INSURANCE COMPANY, Defendant/Appellant/Cross-Respondent, and Winterthur Insurance Company and Lloyds of London Syndicate No. 2027, Defendants.
    No. ED 86039.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.

      John Francis Cooney, Kevin Edward Myers, St. Louis, MO, Michael F. Aylward, Boston, MA, for Appellant.
    William J. Niehoff, Belleville, IL, Lindsay A. Davis, Thomas B. Caswell, Minneapolis, MN, for Respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Lexington Insurance Company (Lexington) appeals and Allianz Insurance Company, Commonwealth Insurance Company, and TIG Insurance Company (collectively Plaintiffs) cross-appeal from a trial court judgment entered in favor of Plaintiffs and against Lexington on Plaintiffs’ First Amended Petition alleging breach of contract and seeking a declaratory judgment as to the number of occurrences that resulted in certain losses. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err in determining that the Midway Loss and the Savage Loss resulted from two occurrences and in not awarding Plaintiffs prejudgment interest. An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Ryan PERRIN, Defendant/Appellant.
    No. ED 86035.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.
    Srikant Chigurupati, Hannibal, MO, for Appellant.
    Jules Victor Decoster, Monticello, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Ryan Perrin (Defendant) appeals from a judgment of conviction of driving while intoxicated (DWI) and possession of a controlled substance. Defendant alleges trial court error in refusing to admit into evidence a certain exhibit and in refusing to allow a certain line of questioning of a State witness by Defendant. Defendant also challenges the sufficiency of the evidence to support his convictions. We have reviewed the briefs of the parties and the record on appeal and conclude that the record contained sufficient evidence from which the jury could have found Defendant guilty beyond a reasonable doubt of DWI and possession of a controlled substance. State v. Shinn, 921 S.W.2d 70, 72-73 (Mo.App. E.D.1996). We also conclude that the trial court did not clearly abuse its discretion in its evidentiary rulings. State v. Uka, 25 S.WM 624, 627 (Mo.App. E.D.2000). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


author: D. MICHAEL SWINEY, J.,

text:
    Kathy BROWN, et al. v. Clint SEAL, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Jan. 27, 2005 Session.
    April 21, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.
    Douglas T. Jenkins, Rogersville, Tennessee, for the Appellants Kathy Brown, Deanna Trent, Rodney Seal, Norman Seal, Tener Clemons, Louise Welch, and Dennis Davis.
    Floyd W. Rhea, Sneedville, Tennessee, for the Appellees Clint Seal, Tony H. Seal, and Patricia G. Seal.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., and SHARON G. LEE, JJ., joined.

In the 1940’s, Tyler Seal received a life estate interest in a parcel of land with the remainder going to his heirs at law upon his death. In 1968, Tyler Seal conveyed his interest in the property to his brother, Clint Seal, via a deed which purported to convey a fee simple interest. This deed was not recorded until 1991. Tyler Seal passed away in March of 1996. Clint Seal deeded the property in fee simple to his son and daughter-in-law, Tony and Patricia Seal, the following year. This lawsuit was filed by various persons claiming an interest in the land because they were remaindermen. Suit was brought against Clint Seal as well as Tony and Patricia Seal (“Defendants”). Defendants claimed they were the rightful record owners of the property or, alternatively, that they were entitled to ownership of the property based on adverse possession. The Trial Court concluded Defendants were entitled to ownership of the property because they had adversely possessed the property for the requisite number of years and further that Plaintiffs’ seven year statute of limitations to file suit had expired. We reverse.

Background

This lawsuit involves a dispute over ownership of a parcel of land located in Hancock County, Tennessee. A chronology of the mostly undisputed facts shows that on March 15, 1941, the last will and testament of Penn Seal was admitted to probate. The will conveyed to Tyler Seal a life estate interest in a particular tract of land with the following language:

Ninethly (sic), I give and bequeath [the land] to my son Tyler Seal for his life, and then to his heirs if he has any, if no heirs at his death then to my heirs to share equally and alike....

Hop Seal was Penn Seal’s brother. On March 11, 1946, Hop Seal deeded an interest in another tract of land to Tyler Seal. The deed was recorded in the Register’s Office for Hancock County on March 12, 1946. The deed describes the land and then makes the following handwritten provision, which we quote:

Accorde to the will that Penn Seal and Mima Seal mad to Tyler C Seal that the Said Mrs Penn Seals is to hav her Su-port from the Land willed to Tyler C Seal it is further agred that Said Tyler Seal has no hears this property Goes to the other hears at his Deth

It is the land obtained in the 1946 deed which is the subject of this lawsuit. With regard to this property, on November 12, 1968, Tyler Seal conveyed his interest in this property to his brother, Clint Seal, via a deed which purported to convey a fee simple interest. The 1968 deed from Tyler Seal to Clint Seal was not recorded in the Register’s Office for Hancock County until August 1,1991.

Tyler Seal passed away on March 4, 1996. Tyler Seal had no spouse and no children.

In 1997, Clint Seal conveyed the property to his son and daughter-in-law, Tony and Patricia Seal. The deed purported to convey a fee simple interest and was duly recorded in the Register’s Office for Hancock County in 1999.

Kathy Brown, Deanna Trent, Rodney Seal, Norman Seal (“Plaintiffs”) and others are some of Penn Seals’ heirs. In May of 2001, Plaintiffs filed this lawsuit claiming an interest in the subject property. Specifically, Plaintiffs claimed that Tyler Seal had only a life estate interest in the property and when he died without a spouse or any children, the property reverted to the heirs of Penn Seal, i.e., Plaintiffs. Plaintiffs sued Clint Seal as well as Tony and Patricia Seal.

Defendants filed an answer and denied that Tyler Seal had only a life estate interest in the subject property. Defendants claimed that Tony and Patricia Seal were the rightful record owners of the property. Defendants further claimed that even if they had not properly obtained ownership of the land through the deed from Tyler Seal to Clint Seal, they had nevertheless adversely possessed the property for the requisite number of years and, therefore, were entitled to retain ownership.

Plaintiffs filed a motion for summary judgment which was partially granted by the Trial Court in December of 2003. After reviewing the pertinent facts, which were undisputed, the Trial Court held:

In light of the circumstances surrounding both the last will and testament of Penn Seal and the warranty deed from Mr. and Mrs. Hop Seal to Tyler Seal in 1946, this Court determines that the intentions of the respective testator and grantors were to convey to Mr. Tyler Seal a life estate interest in the real property, with contingent remainder to his lineal descendants. However, as the will and deed of conveyance did not include terms such as “heirs of the body”, “bodily heirs” or “bodily issue”, the term “heirs” which was included, demands a different result. By virtue of the language contained in both the last will and testament of Mr. Penn Seal and the deed of conveyance from Mr. and Mrs. Hop Seal, Mr. Tyler Seal was vested with a life estate interest in the real property and upon his death, his heirs at law as defined by the rules of intestate succession in Tennessee comprised the class of remaindermen....

One of the issues the Trial Court reserved for later determination was whether Defendants could claim entitlement to the property through adverse possession. The Trial Court then conducted a hearing on this issue and although the record contains no transcript from this hearing, a Statement of Evidence has been provided.

Tony Seal testified at the hearing that he and/or his father, Clint Seal, have farmed the property at issue since 1984. Tony and his father fenced in the property and used the barn for storage for the last twenty years. Similarly, Tony and his father have paid the property taxes since 1980. The Statement of Evidence also contains the following with regard to Tony Seal’s testimony:

I have the deed for the property from my father in 1997 and recorded in 1999.
My father, Clint Seal, had a deed from Tyler Seal in which Tyler Seal may have kept a life estate — I don’t know.
Tyler Seal had a life estate I guess. He stayed with my mom and dad then he went into a nursing home the last two years of his life. He was not able to do anything on the land....
Tyler Seal was paid rent for the place early on. Later, Tyler Seal’s rent for the place was the taxes and the care that my mom and dad gave to him. Tyler Seal died March 1996. We have continued to farm the place after Tyler Seal’s death. I have paid the taxes myself since 1984 or 1985. I have farmed it all that time.

In May of 2004, the Trial Court issued a Memorandum Opinion which resolved the remaining issue regarding Defendants’ claim of adverse possession. After reviewing the relevant facts, statutes, and case law, the Trial Court concluded:

The Defendants have established by clear and positive proof that their possession of the subject real property has been exclusive, uninterrupted, actual, open, notorious and adverse since at least 1991. The Defendants hold said property by virtue of color of title which purports to convey an estate in fee. As no action at law or in equity was commenced within seven years of Defendant Clint Seal’s acquisition of title, this Court concludes that the Defendants Tony Seal and wife, Patricia G. Seal, are vested with good and indefeasible fee simple title. As such, they are protected from any claim of title by Plaintiffs.

Plaintiffs appeal raising one issue. Although not stated exactly as such, Plaintiffs claim that Defendants’ possession of the property could not be considered “adverse” until Tyler Seal died in March of 1996. Therefore, in Defendants’ “‘best case scenario’ they can only show 5 years [of adverse possession] after Tyler died and before suit was brought.” Because the relevant statute requires seven years of ádverse possession, Plaintiffs claim the Trial Court’s decision must be reversed.

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

On appeal, neither Plaintiffs nor Defendants challenge the Trial Court’s conclusion that because of the language in the deed by Hop Seal to Tyler Seal, Tyler Seal was vested only with a life estate interest in the property and, upon his death, “his heirs at law as defined by the rules of intestate succession in Tennessee comprised the class of remaindermen.” We will, therefore, assume this conclusion is correct and our resolution of the issues on appeal in no way alters this finding.

Plaintiffs rely on Quarles v. Arthur, 33 Tenn.App. 291, 231 S.W.2d 589 (1950) in support of their claim that Defendants’ possession of the subject property could not have been adverse until Tyler Seal died in March of 1996. Quarles involved, inter alia, a claim of adverse possession and one of the issues was when the statute of limitations began to run. According to the Court in Quarles:

As to the application of the statutes of limitations, a reading of the statutes appears to us a sufficient answer. By their terms it is only an “adverse” possession which starts the running of the statute. The holding is not adverse as to the remaindermen until their right of action accrues upon the falling in of the life estate. Chambers v. Chattanooga Union Ry. Co., 130 Tenn. 459, 171 S.W. 84; Johnson v. Covington, 148 Tenn. 47, 251 S.W. 893; Campbell v. Lewisburg & Northern Railroad, 160 Tenn. 477, 492, 26 S.W.2d 141.
Guy v. Culberson, 164 Tenn. 509, 51 S.W.2d 500, 502, expressly holds that the possession of grantees of the life tenant who undertook to also convey the fee does not become adverse to the remain-dermen until the death of the life tenant because they “could assert no immediate interest until after the falling in of the life estate” and “the statute of limitation ... would not run ... until the expiration of the life estate.”
The sale and conveyance by the holder of the life estate is not an ouster of the remaindermen; at least not unless they elect to so consider it. They can consider the conveyance as passing only the rights of the life tenant and the possession of the grantee as not inconsistent with their own rights to the fee title in remainder. They are not ordinarily affected by the conveyance. The rule is, of course, otherwise where possession is not essential to the right of action. Bohrer v. Davis, 94 Neb. 367, 148 N.W. 209, L.R.A.1918D, 430, Id., 96 Neb. 474, 148 N.W. 320, Ann. Cas., 1915A, 992; Anno. 14 Am. St. Rep. 634, 635.
The possession of the life tenant or one deriving his title and- possession from the life tenant does not become adverse as to the remaindermen unless the life estate is renounced and' notice is clearly conveyed to the remaindermen that the property is held or claimed adversely and not under the life tenancy. Lake v. Ford, 244 Ky. 803, 52 S.W.2d 724; Forman v. Gault, 236 Ky. 213, 32 S.W.2d 977; Russell v. Tipton, 193 Ky. 305, 235 S.W. 763; Bretschneider v. Farmers Nat. Bank, 131 Neb. 495, 268 N.W. 278; Content v. Dalton, 122 N.J.Eq. 425, 194 A. 286, 112 A.L.R. 1031; Wanta v. Potrykus, 207 Wis. 282, 240 N.W. 183, 241 N.W. 377.

Quarles, 231 S.W.2d at 592-93. See also Hutchison v. Board, 194 Tenn. 223, 250 S.W.2d 82, 86 (1952) (“[W]e think the overwhelming weight of authority sustains the complainants’ insistence that the statute of limitations of 7 years adverse possession does not run against remaindermen during the life of the life tenant.”); Harvey v. Pickel, 1986 WL 674, at *4, 1986 Tenn. App. LEXIS 2722, at *14, 15 (Tenn.Ct.App. Jan. 8, 1986), perm. app. denied Mar. 21, 1986, (“Neither the thirty year statute, T.C.A. § 28-2-205, nor any other adverse possession statute is even germane unless there exists in fact an adverse holding.... [I]f plaintiffs in the instant case were re-maindermen subject to a life estate, there was no possessory right adverse to them as long as the life tenant existed. Accordingly, as to such plaintiffs the statute would form no bar.”).

Defendants rely on Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258 (1969) for the proposition that Plaintiffs were only contingent remaindermen and, as such, this class of contingent remainder-men enjoyed only a possibility of reversion “which was created not at the death of Tyler Seal but at the time of the conveyance [by deed] to Tyler Seal-” We disagree with Defendants’ interpretation of. Fehringer.

The opinion in Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258 (1969) (“Fehringer II ”) was the second occasion the Tennessee Supreme Court had to interpret the will of Anthony L. Fehringer. One of the primary issues in Fehringer. II was the distinction between a limitation using the word “heirs” versus a limitation using terms such as “heirs of the body”, “bodily heirs”, or words of similar import. The Supreme Court observed that various Tennessee cases had held that, unless a contrary intent is found, the meaning of a limitation using the term “heirs” must be determined by the statute governing descent and distribution. The term “heirs” would include only those persons who would be heirs of the conveyor under that statute if the conveyor had died intestate. Fehringer II, 439 S.W.2d at 260. However, limitations using the words “heirs of his body” or the like would result in a remainder “altogether different in its meaning and effect from a remainder in favor of ‘heirs.’ ” Id. Specifically, a remainder to a life tenant’s “heirs of his body” is a remainder to that life tenant’s lineal descendants. Id.

The Supreme Court went on to explain that the last will and testament of Anthony Fehringer devised a life estate to his two sons for their natural life and upon either of their deaths, unto the “heirs of his body.” The Court noted that Fehringer I had held that the remaindermen there could only be determined at the death of the life tenant. The Court explained this did not mean there would necessarily be any remaindermen. Rather, the Court in Fehringer I simply was recognizing that two possibilities could arise in the future: that the life tenant had lineal heirs, or that he did not. In other words, “the remainder was recognized as contingent, and not ready for definition.” Fehringer II, 439 S.W.2d at 260.

Returning to the present case, we fail to see how Fehringer II helps Defendants. Fehringer II certainly supports the Trial Court’s decision that because the Hop Seal deed used the limitation of “heirs” as opposed to “bodily heirs” or the like, the class of remaindermen were to be defined by the rules of intestate succession in Tennessee. In addition, regardless of whether the remainders are deemed to be contingent, we think Fehringer II demonstrates that the triggering event for defining exactly who is in the class of remaindermen is the death of the life tenant. This result holds true regardless of whether the limitation uses the term “heirs” or “heirs of the body.”

We agree with Plaintiffs that, as a general rule, possession of land cannot be considered adverse until the death of the life tenant. Simply put, Defendants’ possession of the land at issue here could not be considered “adverse” to Plaintiffs until the death of Tyler Seal. However, as noted in Quarles, an exception to this rule comes about when the life estate is “renounced and notice is clearly conveyed to the re-maindermen that the property is held or claimed adversely and not under the life tenancy.” Quarles, 231 S.W.2d at 592-93.

Referring to the 1946 Hop Seal deed to Tyler Seal, Defendants contend that they cannot be “charged with notice of a title which expressly conveyed only a life estate.” Even though Defendants claim they cannot be charged with notice of the contents of the properly recorded Hop Seal deed, they turn around and claim that the properly recorded deed from Tyler Seal to Clint Seal “gave notice to [Plaintiffs] and the rest of the world that Tyler Seal did not claim a life tenancy only but claimed fee simple absolute ownership of the land described therein.” Defendants offer no explanation as to why they cannot be charged with knowledge of the contents of a recorded deed, but at the same time Plaintiffs must be so charged.

We again turn to Quarles where the Court offered the following:

[T]he remainderman is not charged with the duty of keeping his estate under constant observation, Anderson v. Miller, 103 Neb. 549, 172 N.W. 688; nor is he charged with notice of a conveyance from the life tenant not appearing in his chain of title even though followed by possession by the grantee, Ontelaunee Orchards v. Rothermel, 139 Pa.Super. 44, 11 A.2d 543. The life tenant or his conveyee must not only disclose to the remaindermen the basis of his claim, Superior Oil Corp. v. Alcorn, 242 Ky. 814, 47 S.W.2d 973, but there must be some clear and positive overt act or express notice, Trimble v. Gordon, 270 Ky. 476, 109 S.W.2d 1217, 1219, to start the running of the statute. The reason underlying these holdings, we assume, is that the possession is not ipso facto inconsistent with the rights of the holders of the future estate. We think their reasoning is sound.

Quarles, 231 S.W.2d at 593.

The above portion of the Quarles opinion was quoted by the Tennessee Supreme Court in Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956) and described as “excellently reasoned.” Moore, 289 S.W.2d at 700. Moore involved land-that was deeded by warranty deed to R.D. Casey and his first wife, Elizabeth. This land was deeded to the Caseys prior to the doctrine of tenancy by the entireties being recognized in this State, so the Caseys were tenants in common and upon the death of either, their undivided one-half interest passed to his or her heirs. Moore, 289 S.W.2d at 696. Elizabeth Casey died in 1927 and R.D. Casey married his second wife, Eva Casey, approximately one year later. On March 7, 1941, R.D. and Eva Casey executed a warranty deed to a Ms. Williamson who recorded the deed the next day. Immediately thereafter, Ms. Williamson executed a warranty deed and deeded the property back to R.D. and Eva Casey, and this deed also was duly recorded. Id. at 696-697. R.D. Casey died in 1950 leaving the property to his wife Eva Casey in fee simple. Eva Casey then deeded the property to Lizzie Moore and, after the heirs of Elizabeth Casey claimed a one-half interest in the property, Eva Casey and Lizzie Moore filed suit to quiet title.

One of the issues resolved by our Supreme Court was whether the 1941 conveyance by R.D. and Eva Casey to Ms. Williamson, and the immediate reconveyance by Ms. Williamson to the Caseys with both deeds being properly recorded, constituted an- ouster and was “sufficient notice to start the running of the statute, in 1941.” Id. at 698. In arguing that this was sufficient notice, Eva Casey and Lizzie Moore relied upon Tenn.Code Ann. § 64-2602 which provided that “All of said instruments so registered shall be notice to all the world from the time they are noted for registration, as prescribed in § 816; and shall take effect from said time.” The Supreme Court concluded this statute provided constructive notice, as opposed to actual notice. The Court then stated:

This doctrine of constructive notice by mere presumption of law, arising from the operation of the registry acts, is to be taken with certain qualifications. It is very different in its effect from actual notice: actual notice binds the conscience of the party; constructive notice, by mere operation of the registry acts, may. bind his title, but not his conscience. ... The object of registration is to give notice to creditors and subsequent purchasers.

Moore, 289 S.W.2d at 698 (quoting Lally v. Holland, 31 Tenn. 396, 401 (1852)). After observing there was nothing in the record to show an ouster other than the recorded déed, the Supreme Court held this was insufficient notice and the Caseys should not be “allowed to profit merely by reason of the deed which was recorded without any other notice or act.” Moore, 289 S.W.2d at 699. See also Home Federal Bank, FSB, of Middlesboro Kentucky v. First Nat'l Bank of LaFollette, Tennessee, 110 S.W.3d 433, 440 (Tenn.Ct.App.2002)(“ ‘Actual notice’ is clearly different from' ‘constructive notice’ ”).

Although some of the facts in this case could have been developed more fully, we know that Tyler Seal was granted a life estate in the property by deed in 1941. Although he had only a life estate interest, Tyler Seal , purported to convey a fee simple interest in the property to his brother, Clint Seal, in 1968. Clint Seal did not record the deed at that time and the deed still was unrecorded in 1984, at which time Clint Seal was farming the property. By the beginning of 1991, Clint and/or Tony Seal had been farming the land for approximately seven years, presumably with Tyler Seal’s permission. None of these facts are such that the remaindermen should have been alerted to a claim of adverse possession on the property. The only changes during the next five years were that, unbeknownst to Plaintiffs, Clint Seal recorded a deed on August 1, 1991, and Tyler Seal was moved into a nursing home two years prior to his death in March of 1996. We also note that Tony Seal testified that his father, Clint Seal, and/or he paid Tyler Seal rent for the property from “early on.”- There is absolutely no evidence that Defendants informed any other family members about the deed from Tyler Seal or that the deed had been recorded. Prior to August 1, 1991, Defendants’ possession of the property was not necessarily adverse to Plaintiffs’ interests as remaindermen. We do not believe the facts support a conclusion that Plaintiffs had sufficient notice that the character of this possession instantly was changed to an adverse possession simply by Clint Seal recording a twenty-three year old deed without Plaintiffs’ knowledge of the existence of the deed or that it had been filed. To hold otherwise would require remaindermen to go to the Register of Deed’s office on frequent intervals to ascertain if a deed from a life tenant has ever been filed by someone which could later result in an adverse possession claim.

In Moore v. Cole, supra, Justice Swepston filed a separate concurring opinion to emphasize that:

[A]s a practical matter ... it would be utterly unworkable to hold that the mere registration of a deed by one tenant in common purporting to convey the entire property to a third party would be an ouster of other tenants in common, in the absence of possession by said grantee under said deed so as to amount to adverse possession.
Such a rule would require every tenant in common to go to the Register’s Office at frequent intervals to examine the records for such a deed. That office would be so flooded with tenants in common that the Register would be unable to function.

Moore, 289 S.W.2d at 700.

It is also important to note that even if Clint Seal’s recording of the deed in 1991 did operate to give Plaintiffs notice of Defendants’ claimed adverse possession, Defendants have offered no explanation why they would not be charged with notice that Tyler Seal had only a life estate because the deed containing that information also was duly recorded. This information would be in Clint Seal’s direct chain of title. If Defendants are charged with this notice, then they knew Tyler Seal was conveying to Clint Seal something he simply did not have, i.e., a fee simple interest in the land. It necessarily follows that Clint Seal conveyed to Tony Seal that which Clint Seal, likewise, knowingly did not possess.

We conclude that under the facts of this case, Defendants’ possession of the property-could not have become adverse to Plaintiffs’ interests until the death of Tyler Seal in March of 1996. We further conclude that neither was Tyler Seal’s life estate ever renounced nor were Plaintiffs given notice which “clearly conveyed to the remainder-men that the property is held or claimed adversely and not under the life tenancy.” See Quarles, 231 S.W.2d at 592-93. In light of these conclusions, the Trial Court erred when it held that Defendants began adversely possessing the property in 1991. The Trial Court also erred when it concluded the seven year statute of limitations contained in Tenn.Code Ann. § 28-2-103 for Plaintiffs to bring this action had expired before the lawsuit was filed. Since the statute of limitations did not begin to run until March of 1996, this lawsuit was filed timely in May of 2001.

Conclusion

The Judgment of the Trial Court is reversed, and this cause is remanded to the Trial Court for further proceedings as necessary and consistent with this Opinion and for collection of the costs below. Costs on appeal are assessed equally against the Appellees, Clint Seal and Tony Seal.

      . The Supreme Court’s first opinion is Fehringer v. Fehringer, 212 Tenn. 75, 367 S.W.2d 781 (1963) ("Fehringer I”).

      . This statute is currently codified at Tenn. Code Ann. § 66-26-102 and remains essentially unchanged. The current version provides that "All of the instruments registered pursuant to § 66-24-101 shall be notice to all the world from the time they are noted for registration, as prescribed in § 8-13-108; and shall take effect from such time.”


author: SHARON G. LEE, J.,

text:
    In re ESTATE OF Billy F. HAWK, Jr.
    Court of Appeals of Tennessee, at Knoxville.
    Jan. 27, 2005 Session.
    Feb. 28, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 10, 2005.
    Michael E. Richardson, Chattanooga, Tennessee, for Appellant.
    W. Jeffrey Hollingsworth and William R. Dearing, Chattanooga, Tennessee, for Appellee.
    Stephen M. Goldstein, Chattanooga, Tennessee, Attorney Ad Litem.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR. and D. MICHAEL SWINEY, JJ., joined.

This case involves a petition filed by the co-executors of the Estate of Billy F. Hawk, Jr. to approve a sale of real estate partially owned by the Estate. The issue presented is whether the trial court should have approved the private sale. The trial court held that the proposed sale was not in the best interest of all the beneficiaries of the Estate. The proposed buyer appeals. We hold that the trial court’s decision was not contrary to the preponderance of evidence, nor was it arbitrary or capricious, and therefore, affirm the trial court’s judgment.

On July 22, 2002, the co-executors of the Estate of Billy F. Hawk, Jr., (hereinafter “the Estate”), Sue D. Hawk (the Decedent’s widow), and AmSouth Bank filed a petition for approval of the sale of two parcels of real estate. At the time of the petition, the major asset of the Estate was a corporation named Holiday Bowl, Inc. The petition alleged as follows:

As executors, the Petitioners hold title to a one-half undivided interest in a certain parcel of real property of about 101 acres located near Snow Hill Road in Hamilton County, Tennessee. Petitioner, Sue D. Hawk, owns the other one-half undivided interest in this tract. The executors propose to sell 12.786 acres from this parcel of about 101 acres.
As executors, the Petitioners also own all of the voting stock and a majority of the non-voting stock of Holiday Bowl, Inc., a Tennessee corporation. Petitioner, Sue D. Hawk, owns all of the remaining outstanding non-voting stock of Holiday Bowl, Inc. Holiday Bowl, Inc. holds title to 98.5 acres located on Snow Hill Road which is adjacent to the parcel of about 101 acres described above.
William F. Hawk, a son of the decedent, desires to purchase both parcels described above under the terms and conditions set out in Real Estate Sales Agreements attached ... to this Petition. The attached agreements are by their terms subject to the approval of this Court. The basic terms are that William F. Hawk will purchase the two parcels for Nine Hundred Twenty Thousand Dollars ($920,000), to be paid in cash at closing. The purchase price of the 12.786 acres is One Hundred Fifty Thousand Dollars ($150,-000); the purchase price of the 98.5 acres is Seven Hundred Seventy Thousand Dollars ($770,000).
* * *
Since the executors have voting con-tool over Holiday Bowl, Inc., they control that corporation’s ability to sell its assets. As a result, the proposed sale by Holiday Bowl, Inc., is in essence a proposed sale by the Estate.

On July 23, 2002, the trial court appointed a guardian ad litem for the minor parties at interest and any contingent and unborn beneficiaries of the Estate. The guardian ad litem filed an answer objecting to the proposed sale. One of the beneficiaries, Megan D. Hawk, answered individually and objected to the proposed sale as contrary to her best interest.

On December 4, 2003, the co-executors filed with the court a document styled “Ownership Change Notice” which stated as follows:

At the time this matter was initially filed, Holiday Bowl, Inc. owned one of the tracts that is the subject of this proceeding (the tract of about 98 acres). The corporate stock of Holiday Bowl, Inc. was recently sold. In connection with the sale, a partial stock redemption was accomplished in order to transfer ownership of such property to the shareholders. As a result, the parcel is now owned by the Estate of Billy F. Hawk, Jr., as to an 81.25% interest, and Sue D. Hawk as to an 18.75% interest.

The trial court heard the petition on December 15, 2003. The only persons to testify were Sue D. Hawk and Donald L. Tindell, a real estate appraiser who submitted appraisals of the value of the property proposed to be sold. The trial court ruled that the sale was not in the best interest of all the beneficiaries and dismissed the petition. William F. Hawk, a son of the decedent, has appealed this decision. The co-executors of the Estate have filed an appellee’s brief arguing that the trial court correctly decided this case.

In this non-jury case, our review is de novo upon the record of the proceedings below, but the record comes to us with a presumption of correctness as to the trial court’s factual determinations which we must honor unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

Much of the controversy in this case centers around Mr. Tindell’s appraisals of the two parcels of real estate. The proposed sale price was the same as the appraised value. Those opposing the sale argued that the co-executors, who requested and paid for the appraisals, limited the scope of Mr. Tindell’s appraisals such that the appraised prices of the real estate did not accurately reflect the true market value. They also asserted that the co-executors should have listed and placed the property on the open market before accepting an offer from one of the beneficiaries of the Estate. Mr. Tindell testified in relevant part as follows:

Q: Mr. Tindell, when you were asked to make this appraisal, how did-what specifically did they ask you to do?
A: Just to value the property as its present use, in its present state.
Q: Is that the way you usually make an appraisal?
A: Well, we get asked to make appraisals for potential use or as developed or-in this instance it was just to be appraised as its present use, present zoning.
Q: Are most of your appraisals made at the highest and best use of the property?
A: A lot of them are, yes, sir.
Q: And what is the difference between what you do when you make an appraisal of highest and best use and you make an appraisal as the property sits now or as it is now presently used?
A: Well, we appraise property to their potential use many times, which would be their highest and best use as well as their present use. It’s just all according to how the request is ordered.
Q: Okay. If the property were placed on the open market, what would be the standard that you would appraise it for?
A: The highest and best use.
Q: And that would be the true market value?
A: It would be potential market value.
Q: Okay. Now, Mr. Tindell, would the beneficiaries benefit from the sale of the land being opened to the public first to bring a higher price rather than accepting, approving an original offer to a beneficiary without first seeking outside buyers?
A: You would probably find out fairly quick, open market typically brings the highest price.

Mr. Hawk argues that the co-executors were granted broad discretionary powers under the will to sell property of the estate, and asserts that “the standard of review for the Chancellor in determining [whether] the sale should be approved, is whether the trustees have exercised the discretion given to them under the Will in a reasonable manner.” Mr. Hawk relies on the case of Alexander v. Nelson, 825 S.W.2d 106 (Tenn.Ct.App.1991), wherein the court addressed the question of whether the trustee in that case, under the terms of the will, could sell the property at issue to one of the surviving children for a price substantially less than fair market value. The Alexander court stated as follows:

We think these excerpts from the Tennessee cases state a rule that is almost universally followed. In Bogert on Trusts, 5th Ed., p. 324, the author says:
In some cases the trust instrument gives the trustee “uncontrolled and absolute discretion” to do or refrain from doing certain acts or to decide certain questions. While here the trustee is probably somewhat less subject to the review and control of the court, the words are not given their literal meaning. It is said that the trustee must act “in the state of mind contemplated by the testator”, which would seem to mean he must give some consideration to the fundamental purposes of the trust. Extraordinary decisions preventing accomplishment of a primary purpose of the settlor will not be tolerated. But if the trustee has used his judgment in good faith and has considered the set-tlor’s objectives and the effect of his action on the beneficiaries, the court will not overturn the trustee’s decision and direct a different result.
While it might be argued that the testator’s primary intent was to favor his children and keep his property in the family, it also must be admitted that the trustee owed a duty to the beneficiaries of the trust (the heirs). By the time of the events in this record, some of the grandchildren of the testator had become the beneficiaries of the trust. We think they are entitled to be treated fairly and not arbitrarily.

Alexander v. Nelson, 825 S.W.2d 106, 108 (Tenn.Ct.App.1991).

We have no disagreement with Alexander, and agree that it is applicable to the extent it holds that a trustee’s discretion to deal with property of the trust must be exercised reasonably, and that all the beneficiaries must be treated fairly and not arbitrarily. But there is an additional factor in this case not present in Alexander. Regardless of the question of the power and discretion of the co-executors to dispose of property under the will, the parties specifically provided by contract that the sale would be contingent upon the Chancery Court’s approval, as follows:

Approval by Court. This Agreement shall be subject to approval by the Hamilton County Chancery Court. If such approval is not obtained, then this Agreement shall stand canceled without further liability on the part of Buyer or Seller.

Sue D. Hawk testified without contradiction that at the time her son, William F. Hawk, approached her with an offer to buy the property several months after his father’s death, “I told him that I felt as though we could do this. It [Holiday Bowl, Inc.] was in need of cash access at the time, and so we agreed to do this.” She stated that Holiday Bowl, Inc. needed an infusion of cash to pay some outstanding debts. Shortly before the hearing of this case, however, the corporate stock of Holiday Bowl was sold. Counsel for the co-executors in closing argument stated, “[c]ireumstances certainly have changed with the selling of Holiday Bowl. The estate will candidly admit that if given the opportunity to sign the contracts today, it would not do so.”

The trial court, in holding that the proposed sale was not in the best interest of all the beneficiaries, stated the following:

I think when you put the appraiser in the box and say that he or she can only do one thing, that is, appraise it as is instead of the highest and best use, you kind of limit the responses that can be obtained.
I think those reasons, plus the fact that no one has given me an explanation yet why the contract on its face shows that Ms. Hawk would receive more money than the estate for the 12.786 acres, the Court must dismiss the petition, and that’s the basis of my decision.
I think when you put it in my lap, I’ve got to see what is in the best interest of all the parties, and those parties include minor beneficiaries. And the Court has an extra special duty, I think, to look after minor beneficiaries.

The duty to which the court alluded was discussed by the Supreme Court in the case of Nashville Trust Co. v. Lebeck, 197 Tenn. 164, 270 S.W.2d 470 (1954) as follows:

With reference to the disposition of the property of infants and lunatics, i.e. the sale or lease of such property, the Chancellor stands in loco parentis, Ricardi v. Gaboury, 115 Tenn. 484, 89 S.W. 98, 100, and in authorizing ‘the making of a lease of the property of a minor’, must consider that which ‘will be most beneficial to him.’ Ricardi v. Gaboury, supra. Regardless of the pleadings, when minors and lunatics are before the court, the protection of their property rights and interests is said to be ‘matters of conscience’ and fall ‘strictly within the scope of the Chancellor’s extraordinary jurisdiction.’ Sec. 8, Bispham Principles of Equity.

Nashville Trust Co. v. Lebeck, 270 S.W.2d 470, 475 (Tenn.1954).

We are of the opinion that the trial court’s decision in this case was within its broad discretion, not arbitrary or capricious, and not contrary to the preponderance of the evidence. We caution that this opinion should not be construed as a requirement that an appraiser provide any certain kind of appraisal in order for a court to approve the sale of real estate by a trust; “[t]he circumstances in each case must be considered.” Alexander, 825 S.W.2d 106, 108 (Tenn.Ct.App.1991). Under the specific circumstances presented by this case, we do not find error in the trial court’s decision.

The judgment of the trial court dismissing the petition is, therefore, affirmed. Costs on appeal are assessed to the Appellant, William F. Hawk.


author: ALAN E. HIGHERS, J.,

text:
    Regina HELDERMAN and husband, Troy Helderman v. Matthew R. SMOLIN, M.D., et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Feb. 15, 2005 Session.
    April 18, 2005.
    Application for Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      J. Houston Gordon, Covington, TN, for Appellants.
    Charles M. Purcell, Andrew V. Sellers, Jackson, TN, for Appellees.
   OPINION

ALAN E. HIGHERS, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This appeal involves a claim for medical malpractice. The plaintiffs cardiologist initially diagnosed her as having a heart condition which required surgery to repair. The plaintiff’s cardiologist referred the plaintiff to a cardiothoraeic surgeon for surgical repair of the condition. The plaintiff subsequently sought a second opinion, and the second cardiologist determined that the plaintiff did not need surgery. Thereafter, the plaintiffs original cardiologist apparently changed his diagnosis of the plaintiffs condition. After some time passed, the cardiothoraeic surgeon performed surgery on the plaintiff, which was ultimately determined to be unnecessary. The plaintiff sued her original cardiologist and the cardiothoraeic surgeon for medical malpractice. Through discovery, it was determined that the cardiotho-racic surgeon did not review the plaintiffs entire medical records prior to performing the surgery. The cardiologist filed a motion for summary judgment arguing the cardiothoraeic surgeon was the sole proximate cause of the plaintiffs injuries. In response, the plaintiff submitted an affidavit from her expert witness stating that the cardiologist had a duty under the applicable standard of care to directly communicate his changed diagnosis to the car-diothoracic surgeon, and his actions were a “significant contributing factor” to the plaintiffs injuries. The cardiologist filed a motion to strike the affidavit of the plaintiffs expert as contradictory to his deposition testimony. The trial court partially granted the cardiologist’s motion. After doing so, the trial court granted the cardiologist’s motion for summary judgment. The plaintiff appealed to this Court, and we reverse.

I.

Factual BACKGROUND and PROCEDURAL HISTORY

In 1997, Regina Helderman’s (“Helder-man” or “Appellant”) primary care physician referred her to Dr. Matthew R. Smolin (“Dr. Smolin” or “Appellee”), a cardiologist practicing in Jackson, Tennessee, after Helderman reported having chest pains. On May 12, 1997, Dr. Smo-lin performed a transesophageal echocar-diogram on Helderman to determine whether she had an atrial septal defect. As a result of this test, Dr. Smolin determined that Helderman did, in fact, have an atrial septal defect. On May 14, 1997, Dr. Smolin performed a cardiac catheteri-zation on Helderman to determine whether the atrial septal defect was hemody-namically significant, thereby requiring surgery to repair. As a result of this test, Dr. Smolin diagnosed Helderman with a hemodynamically significant defect.

After performing these tests, Dr. Smo-lin referred Helderman to Dr. Arthur Grimball (“Dr.GrimbaU”), a cardiothoracic surgeon, for an evaluation to determine whether surgery was needed to close the atrial septal defect. Dr. Grimball evaluated Helderman the same day as the cardiac catheterization and determined that Helderman required surgery to repair the defect in her heart. He scheduled Held-erman’s surgery for June 3, 1997. The record contains a document entitled “Outpatient Summary” dated May 14, 1997, which indicates that Dr. Smolin changed his diagnosis to reflect that Helderman had a hemodynamically insignificant atrial septal defect. This document also indicates that Dr. Smolin forwarded it to Dr. Grimball. However, the document states that Dr. Smolin did not dictate it until June 6, 1997, and it was not transcribed until June 9, 1997.

Helderman subsequently obtained a referral from her primary care physician to seek a second opinion. On May 30, 1997, Helderman visited Dr. James Crenshaw (“Dr.Crenshaw”), a cardiologist. Dr. Crenshaw reviewed the cardiac catheteri-zation report and determined that the atrial septal defect was hemodynamically insignificant, therefore, surgery was not required. Armed with this new information, Helderman left Dr. Crenshaw’s office and proceeded directly to Dr. Smolin’s office where she confronted him with Dr. Crenshaw’s findings. According to Dr. Smolin, he reviewed the testing data and concluded that the laboratory computer performing the test had made an error. Dr. Smolin asserts that he recalculated the data by hand and determined Helder-man’s atrial septal defect to be insignificant, and he advised Helderman that no surgery would be required to fix the defect. Dr. Smolin’s office notes from May 30, 1997, show that he noted the computer error, determined Helderman’s atrial sep-tal defect to be insignificant, and advised her to forgo surgical repair. According to Dr. Smolin, he forwarded a copy of his May 30, 1997, office notes indicating the corrected diagnosis to Dr. Grimball.

Conversely, Helderman asserts that a different series of events transpired when she visited Dr. Smolin on May 30, 1997. Helderman stated that Dr. Smolin seemed puzzled and agitated by Dr. Crenshaw’s findings, and he continued to represent to her that she had a hemodynamically significant atrial septal defect requiring surgery to repair. According to Helderman, Dr. Smolin told her that the laboratory computer may have made a mistake, and he decided to postpone the surgery. Helder-man asserts that, prior to leaving Dr. Smo-lin’s office, she never received any further instructions or advice. Helderman never saw Dr. Smolin perform any calculations, and he never called Dr. Grimball while she was present in his office on May 30, 1997. According to Dr. Grimball, he never received any communications from Dr. Smo-lin alerting him to the fact that the previous calculations were incorrect. In any event, Helderman did not report for surgery on June 3,1997.

In the interim, Helderman continued to seek treatment from Dr. Smolin at the request of her primary care physicians through the middle of 1999. On January 19, 1999, Helderman went to the emergency room at the Jackson/Madison County General Hospital complaining of fatigue. The emergency room physician’s notes state that “[s]he was found to have a very small atrial septal defect back in 1997, felt to be hemodynamically insignificant. She, apparently, initially got some conflicting opinion concerning that.”

According to Helderman, in the early part of 1999, Dr. Smolin continuously encouraged her to make an appointment with Dr. Grimball to have the atrial septal defect repaired. On May 12, 1999, Helder-man visited Dr. Grimball’s office and stated that Dr. Smolin told her to have the atrial septal defect repaired because her symptoms were worsening. After meeting with Helderman, Dr. Grimball reviewed his consultation report from 1997 showing a hemodynamically significant atrial septal defect, discussed the operation with her, and made arrangments to admit her to the hospital for the operation on June 10,1999. Dr. Grimball admitted to not reviewing any other records prior to scheduling the surgery. Specifically, Dr. Grimball stated that he did not review his own medical records on Helderman prior to scheduling the operation. Thus, he had no knowledge of whether the report allegedly prepared by Dr. Smolin regarding the May 30, 1997, office visit, which set forth his new finding of a hemodynamically insignificant atrial septal defect, was contained in those records.

Dr. Grimball performed the surgery on Helderman on June 10, 1999, as scheduled. As a result, Helderman experienced complications related to the unnecessary surgery. On July 7, 1999, Dr. Crenshaw requested, in writing, that Dr. Smolin’s office forward to him all records pertaining to Helderman. Dr. Smolin’s office faxed the records to Dr. .Crenshaw that same day. Dr. Crenshaw stated that the records forwarded did not contain a copy of Dr. Smo-lin’s May 30, 1997, office note indicating a change in diagnosis, nor did he receive any documents indicating Helderman’s atrial septal defect had subsequently been determined to be hemodynamically insignificant.

On May 5, 2000, Helderman, along with her husband, filed a complaint in the Circuit Court of Madison County, Tennessee, against Dr. Smolin individually and his business, Medical Specialty Clinic, P.C., alleging medical malpractice. In addition, Helderman named Dr. Grimball individually and his business, Cardiothoracic Surgery Center, P.L.C., as defendants. She also secured the services of an expert witness, Dr. David Hansen (“Dr.Hansen”).

• Thereafter, Dr. Smolin filed a motion for summary judgment with the trial court alleging that Dr. Grimball was the sole proximate cause of Helderman’s injuries. In support of his motion, Dr, Smolin submitted his own deposition testimony; the deposition testimony of Dr. Crenshaw, Dr. Grimball, and Dr. Hansen; excerpts from the deposition of Stephanie Geibel (“Ms.Geibel”), records custodian for Dr. Grimball; and relevant portions of Helder-man’s medical records. Dr. Smolin also submitted the affidavit of his own expert, Dr. Dale Wortham, who opined that Dr. Smolin complied with the applicable standard of care, and that Dr. Grimball’s actions were the sole proximate cause of Helderman’s injuries. In response to Dr. Smolin’s motion, Helderman filed Dr. Hansen’s affidavit and his deposition testimony. Helderman also submitted relevant portions of her medical records and excerpts from the depositions of various witnesses.

In his affidavit, Dr. Hansen stated, in relevant part, as follows:

7. The misdiagnosis and misreferral in the first instance was a situation that could have been and should have been avoided by the proper communication between Dr. Smolin and Dr. Grimball, the cardiovascular surgeon, when Dr. Smolin learned that he had made an error in his analysis and diagnosis of Ms. Held-erman’s condition. Dr. Smolin had an affirmative duty, under the applicable standard of care, to directly communicate with Dr. Grimball that the test results reported to Dr. Grimball calling for surgery were incorrect. If, in fact, as Dr. Grim-ball testified, he failed to so communicate, such would be a violation of the standard of care.
15. In sum, as a result of the negligence of Dr. Smolin which was a significant contributing factor to Regina Helderman being operated on, Regina Helderman received a serious operation for a condition that she never had and was operated on unnecessarily.

(emphasis added).

Based on these assertions by Dr. Hansen, Dr. Smolin filed a motion to strike Dr. Hansen’s affidavit as contradictory to his prior deposition testimony. Dr. Smolin argued that, during his deposition testimony, Dr. Hansen testified that Dr. Smolin adequately communicated to Dr. Grimball, through written communications, that Helderman had a hemodynamically insignificant atrial septal defect which did not require surgery. Additionally, Dr. Smolin argued that Dr. Hansen previously testified in his deposition that Dr. Grimball’s failure to review the medical records was the sole cause of the unnecessary surgery.

On April 26, 2004, the trial court entered an order granting in part and denying in part Dr. Smolin’s motion to strike the affidavit of Dr. Hansen. The trial court concluded that Dr. Hansen’s affidavit contained inconsistent and contradictory statements regarding material facts. Specifically, the trial court ordered stricken the last sentence in paragraph seven (7) of Dr. Hansen’s affidavit. Additionally, the trial court ordered stricken from Dr. Hansen’s affidavit paragraph fifteen (15) in its entirety. In turn, the trial court concluded that no genuine issues of material fact remained to be decided, and that Helder-man failed, as a matter of law, to prove that Dr. Smolin was a proximate cause of her injuries. Accordingly, the trial court granted Dr. Smolin’s motion for summary judgment.

Helderman subsequently filed a timely notice of appeal to this Court presenting the following issues for our review:

I. Whether the trial court erred in partially granting Appellee’s motion to strike the affidavit of Appellant’s expert witness;
II. Whether the trial court erred in granting Appellee’s motion for summary judgment; and
III. Whether the trial court erred by invading the province of the jury when the underlying facts relied upon by Appellant’s expert witness are “hotly contested.”

For the reasons set forth more fully herein, we reverse the decision of the trial court.

II.

Law and Analysis

In order to establish a claim for medical malpractice, the plaintiff has the burden of proving, by a preponderance of the evidence, the following:

(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

Tenn.Code Ann. § 29-26-115(a) (2003); see also Kelley v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 591-92 (Tenn.2004).

“A party is entitled to summary judgment where he or she establishes that there is no genuine issue as to any material fact and that a judgment may be rendered as a matter of law.” Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003) (citing Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.2000)); see also Tenn. R. Civ. P. 56.04 (2003). The party moving for summary judgment has the burden of proving that the motion satisfies these requirements. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997) (citing Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991)). Once the moving party has established that there is no genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate, by affidavits or other discovery materials, that there is a genuine issue of material fact to be resolved by trial of the matter. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993) (citations omitted). “In reviewing a motion for summary judgment, the Court must examine the evidence and all reasonable inferences from the evidence in the light most favorable to the non-moving party.” Stovall, 113 S.W.3d at 721 (citing Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn.2001)). The trial court should grant a motion for summary judgment “only when both the facts and the conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion.” Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995) (citing Byrd, 847 S.W.2d at 210-11)).

“Our task on appeal is to review the record to determine whether the requirements for granting summary judgment have been met.” Church v. Perales, 39 S.W.3d 149, 157 (Tenn.Ct.App.2000). “This court must use the same standard in reviewing a trial court’s judgment granting summary judgment.” Prince v. Saint Thomas Hosp., 945 S.W.2d 731, 733 (Tenn.Ct.App.1996) (citing Clifton v. Bass, 908 S.W.2d 205, 208 (Tenn.Ct.App.1995)). Since our inquiry on appeal involves purely questions of law, Carvell, 900 S.W.2d at 26, “[t]he standard for reviewing a grant of summary judgment is de novo without any presumption that the trial court’s conclusions were correct.” Webber, 49 S.W.3d at 269; see also Kelley, 133 S.W.3d at 591; Bain, 936 S.W.2d at 622.

Before determining whether the trial court properly granted Dr. Smolin’s motion for summary judgment, we must address the trial court’s decision to strike portions of Dr. Hansen’s affidavit. See Wilson v. Patterson, 73 S.W.3d 95, 101 (Tenn.Ct.App.2001). “In Tennessee, expert testimony is required to establish negligence and proximate cause in malpractice actions unless the alleged malpractice is within the common knowledge of laymen.” Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn.Ct.App.1984) (citing Phelps v. Vanderbilt Univ., 520 S.W.2d 353 (Tenn.Ct.App.1974)); see also Tenn.Code Ann. § 29-26-115(b) (2003); Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn.Ct.App.2003); Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn.Ct.App.1982). “In general, questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn.1997) (citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993)); see also Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn.1998); Kenyon, 122 S.W.3d at 759.

A trial court’s decisions in this regard are reviewed by this Court under an abuse of discretion standard of review. Seffernick, 969 S.W.2d at 393; Ballard, 855 S.W.2d at 562; Kenyon, 122 S.W.3d at 759. In employing this standard of review, we are mindful of the following:

Discretionary decisions require conscientious judgment. See BIF v. Service Constr. Co., 1988 Tenn.App. LEXIS 430, 1988 WL 72409, at *2. They must take the applicable law into account and must also be consistent with the facts before the court. See Overstreet v. Shoney’s, Inc., 4 S.W.3d at 694. Appellate courts will set aside a discretionary decision only when the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence. See Overstreet v. Shoney’s, Inc., 4 S.W.3d at 695. Thus, a trial court’s discretionary decision should be reviewed to determine: (1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court identified and applied the applicable legal principles, and (3) whether the trial court’s decision is within the range of acceptable alternatives. See BIF v. Service Constr. Co., 1988 Tenn.App. LEXIS 430, 1988 WL 72409, at *3. Appellate courts should permit a discretionary decision to stand if reasonable judicial minds can differ concerning its soundness. See Overstreet v. Shoney’s, Inc., 4 S.W.3d at 695.

White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.Ct.App.1999).

The courts of this state adhere to the rule that contradictory statements by the same witness regarding a single fact will cancel each other out. Wilson v. Patterson, 73 S.W.3d 95, 103-04 (Tenn.Ct.App.2001) (citing State v. Matthews, 888 S.W.2d 446, 449 (Tenn.Crim.App.1993)); see also Tibbals Flooring Co. v. Stanfill, 219 Tenn. 498, 410 S.W.2d 892, 896 (1967); Church v. Perales, 39 S.W.3d 149, 169-70 (Tenn.Ct.App.2000); Gambill v. Middle Tenn. Med. Ctr., Inc., 751 S.W.2d 145, 149-50 (Tenn.Ct.App.1988); Taylor v. Nashville Banner Publ’g Co., 573 S.W.2d 476, 482 (Tenn.Ct.App.1978). If determined by the trial court to be contradictory, the statements by the witness are considered to be “no evidence” of the fact sought to be proved. Wilson, 73 S.W.3d at 104 (citing Johnston v. Cincinnati N.O. & T.P. Ry. Co., 146 Tenn. 135, 240 S.W. 429, 436 (1922)). The policy for such a rule can be stated as follows:

If parties in court were permitted to assume inconsistent positions in the trial of their cause, the usefulness of courts of justice would in most cases be paralyzed. The coercive powers of the law, available only between those who consented to its exercise, could be set at naught by all. But the rights of all men are in the keeping of the courts, and consistency of proceeding is therefore required of all those who come in or are brought before them. It may accordingly be laid down as a broad proposition that one, without mistake induced by the opposite party, who has taken a particular position deliberately, in the course of litigation, must act consistently with it. One cannot play fast and loose.

Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 813 (1906); see also Sipe v. Porter, No. E2002-02938-COA-R9-CV, 2003 WL 22455948, at *3, 2003 Tenn.App. LEXIS 763, at *9 (Tenn.Ct.App. Oct.30, 2003).

The “cancellation rule” only applies, however, “when the inconsistency in the witness’s testimony is unexplained and when neither version of his testimony is corroborated by other evidence.” Taylor, 573 S.W.2d at 483. As our supreme court has stated,

The question here is not one of the credibility of a witness or of the weight of evidence; but it is whether there is any evidence at all to prove the fact. If two witnesses contradict each other there is proof on both sides, and it is for the jury to say where the truth lies; but if the proof of a fact lies wholly with one witness, and he both affirms and denies it, and there is no explanation, it cannot stand otherwise than unproven. For his testimony to prove it is no stronger than his testimony to disprove it, and it would be mere caprice in a jury upon such evidence to decide it either way.

Johnston, 240 S.W. at 436. ‘When the cancellation rule is invoked at the summary judgment stage to challenge evidence opposing the motion, the courts must view the challenged evidence in the light most favorable to the opponent of the motion.” Church, 39 S.W.3d at 170; see also Wilson, 73 S.W.3d at 104.

Upon reviewing the statements made by Dr. Hansen in his affidavit and deposition in the light most favorable to Helderman, we conclude that, contrary to the trial court’s holding, they are not contradictory. Regarding paragraph seven (7) of Dr. Hansen’s affidavit, addressing the standard of care applicable in this case, the trial court found, in relevant part, as follows:

In comparing Dr. Hansen’s affidavit testimony to that of his deposition testimony, this Court concludes that if Dr. Smolin communicated “verbally or in writing” his opinion to Dr. Grimball that surgery for Mrs. Helderman’s condition was not needed, then either form would be acceptable under the applicable standard of care and thus no violation of the standard of care would be found. This conclusion is reached whether the treating cardiothoracic surgeon, Dr. Grimball read, followed, or ignored such advice that surgery was not needed. Consequently, the Court orders that the last sentence of paragraph 7 from Dr. Hansen’s affidavit is to be stricken. This sentence specifically provides, “if, in fact, as Dr. Grimball testified, he failed to so communicate, such would be a violation of the standard of care.”

(emphasis added). In his deposition, Dr. Hansen testified concerning the standard of care as follows:

Q. What is the standard of care for a cardiologist practicing in the Jackson-Madison County area to communicate his or her findings about whether surgery is or is not necessitated to the cardiothoracic surgeon?
A. I think that communication can occur verbally or it can-it can occur in the form of a written communication, either one would be acceptable.

(emphasis added).

In an effort to show an inconsistency between Dr. Hansen’s statements, Dr. Smolin points to the following testimony offered by Dr. Hansen during his deposition:

Q. Let’s talk about communication for just a moment. Communication comes in many different forms, I take it, does it not?
A. Yes.
Q. There is the communication where you and I are talking to one another directly here,' and there’s also the communication of just like Mr. Gordon who sent you a letter, provided some information to you and communicated to you his perspective of the case. True?
A. Yes.
Q. Let me take a couple of examples with you and you tell me if they’re acceptable. Let’s say that I’m the cardiologist and you’re the cardioth-oracic surgeon and I determine that a patient has an insignificant atrial septal defect.... And let’s say that I have made that determination as the cardiologist, and I see you out in the hallway at the hospital. Obviously I go up to you and I say, Dr. Hansen, I want to tell you I saw Mrs. Helderman the other day and she does not need to have surgery because the atrial septal defect is insignificant. That would be an example of perfectly acceptable verbal communication to — from me to you as the cardiothoracic surgeon. True?
A. Yes.
Q. Let’s take the written communication. Suppose that I as the cardiologist examine Mrs. Helderman and I make the determination that she does not need to have surgery to repair the atrial septal defect. I write that up in my report and I carbon copy you on that report. Is that within the standard of care for cardiologists communicating to car-diothoracic surgeons in Jackson-Madison County about the cardiologist’s opinions that surgery' is not needed?
A. Yes.
Regarding the outpatient summary created by Dr. Smolin, Dr. Hansen testified as follows:
Q. At the bottom of the outpatient summary there are two names that are carbon copied. The first is Dr. Grimball, correct?
A. Yes.
Q. In your opinion, this would be an acceptable and completely compliant with the standard of care for communications of cardiologists in the Jackson-Madison County area of Dr. Smolin’s opinion that this was hemodynamieally insignificant to Dr. Grimball?
A. Yeah, that’s an acceptable way of communicating to Dr. Grimball, although it strikes me that it’s only acceptable by virtue of the fact that the patient failed to show for surgery on June the 3rd because this document was not-which was the originally scheduled date for surgery-because this document is not dictated until five days after she would have had the operation to begin with.
So I think, you know, had the patient actually had the operation and then some time later this note shows up on Dr. Grimball’s desk saying, by the way, you shouldn’t have done the surgery because it’s hemodynamieally insignificant. I think that would have been a breach and so it’s only by the good fortune that the patient didn’t show up that this is acceptable.

Furthermore, during his deposition, Dr. Hansen expressed his opinion that Dr. Grimball did, in fact, receive notice from Dr. Smolin of his changed diagnosis, testifying as follows:

THE WITNESS: It’s my understanding that the outpatient summary that was dictated on June 8th, 1997, was carbon copied to Dr. Grimball. It’s — and I have — it is my belief that more likely than not that actually arrived in his office and was in his medical records and his possession. Sometime thereafter it was transcribed on June 9th, 1997.
BY MR. PURCELL:
Q. So is it your opinion then that Dr. Smolin did communicate with Dr. Grimball by way of that outpatient summary and advised Dr. Grimball that Mrs. Helderman had a hemo-dynamieally insignificant atrial sep-tal defect?
A. I think that — I think that communication through the carbon copy does that.

However, Dr. Smolin and the trial court overlook the fact that whether Dr. Smolin did, in fact, send notice of his amended diagnosis to Dr. Grimball remains a disputed fact in this case. Dr. Grimball testified in his deposition that he never received notice from Dr. Smolin. Dr. Smolin testified in his deposition that he forwarded a copy of his changed diagnosis to Dr. Grimball. Dr. Crenshaw testified in his deposition that, when he requested Held-erman’s medical records from Dr. Smolin following her surgery, they contained no document showing Dr. Smolin had changed his diagnosis to reflect that Helderman had a hemodynamically insignificant atrial septal defect. Ms. Geibel testified that, while Dr. Smolin’s amended diagnosis was currently in Helderman’s medical records, she could not say when that document was placed in the records.

Dr. Hansen recognized the existence of this disputed fact when he stated in his affidavit: “If in fact, as Dr. Grimball testified, [Dr. Smolin] failed to so communicate, such would be a violation of the standard of care.” (emphasis added). That this fact remains to be decided is further evidenced by Dr. Hansen’s own deposition testimony, wherein he stated:

Q. “Dr. Hansen is expected to testify that Dr. Smolin had an affirmative duty to directly communicate to Dr. Grimball that his report of a hemo-dynamically insignificant atrial sep-tal defect and his communication to Dr. Grimball of the same were incorrect and, therefore, no surgery was indicated.” Is that a correct statement of , your anticipated testimony?
A. Yes.
Q. “Assuming Dr. Grimball’s testimony to be correct that no such communication was ever received by him, Dr. Hansen is expected to render an opinion that there was a violation of the standard of care on the part of Dr. Smolin and/or his clinic staff for which he is responsible.” Is that a correct statement of your anticipated testimony?
A. Yes.
Q. Is it your opinion that at no time did Dr. Smolin ever communicate to Dr. Grimball that Mrs. Helderman had an insignificant atrial septal defect?
A. Based on my reading of both Dr. Grimball’s deposition and Dr. Smo-lin’s deposition, I did not find either one of them claiming there was such a communication. That’s my basis for that opinion. I’d be happy to change that opinion if under oath either or both of them swore to the fact that there was such a communication.

(emphasis added).

In order for the trial court to conclude that Dr. Hansen’s statements were inconsistent, it necessarily had to find that Dr. Grimball received some form of notice from Dr. Smolin prior to conducting Held-erman’s surgery. In order so to find, the court would need to weigh the evidence and determine that Dr. Grimball did, in fact, receive Dr. Smolin’s corrected diagnosis. We reach this conclusion by referencing the language of the court’s order, stating:

In comparing Dr. Hansen’s affidavit testimony to that of his deposition testimony, this Court concludes that if Dr. Smolin communicated “verbally or in writing” his opinion to Dr. Grimball that surgery for Mrs. Helderman’s condition was not needed, then either form would be acceptable under the applicable standard of care and thus no violation of the standard of care would be found.

The court goes on to note that Dr. Hansen testified that it is acceptable for a cardiologist to send the surgeon a carbon copy of his report, and outpatient summaries and other reports are acceptable forms of written communications between the cardiologist and the surgeon. Thus, in order to find an inconsistency, the court necessarily had to conclude that the parties did not dispute whether Dr. Smolin ever sent notice to Dr. Grimball. At this preliminary stage in the proceedings, the trial court is not permitted to weigh the evidence. Church v. Perales, 39 S.W.3d 149, 171 (Tenn.Ct.App.2000); see also Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993). “When a material fact is in dispute creating a genuine issue, when the credibility of witnesses is an integral part of the factual proof, or when evidence must be weighed, a trial is necessary because such issues are not appropriately resolved on the basis of affidavits.” Byrd, 847 S.W.2d at 216.

Based upon our review of the testimony proffered by Dr. Hansen in his affidavit and deposition, we conclude that Dr. Hansen’s statements regarding the standard of care are not inconsistent. The term “directly communicate” is susceptible of being interpreted to mean either verbal or written communication, which is consistent with his prior deposition testimony. Although Dr. Hansen expressed his opinion that Dr. Smolin did provide written notice of his changed diagnosis to Dr. Grimball, he also noted that this opinion is contingent upon the evidence offered at trial. When the testimony of a witness is susceptible of multiple interpretations, one of which would produce no inconsistency, we are reluctant to apply the “cancellation rule.” See Gambill v. Middle Tenn. Med. Ctr., Inc., 751 S.W.2d 145, 151 (Tenn.Ct.App.1988). Instead, “the meaning of relevant oral statements made by or to a party ... is a fact question for a jury to consider in weighing the possible contradictions in and credibility of the testimony of the witness, rather than a law question for determination by the Trial Judge on motion for summary judgment or directed verdict.” Id. (citing Ark. River Packet Co. v. Hobbs, 105 Tenn. 29, 58 S.W. 278 (1900)); see also Ledford v. Francis, 1988 WL 132686, at *4-5, 1988 Tenn.App. LEXIS 813, at *13-14 (Tenn.Ct.App. Dec. 14, 1988).

Turning to paragraph fifteen (15) in Dr. Hansen’s affidavit concerning causation, the trial court held that this paragraph should be stricken in its entirety as contradictory to Dr. Hansen’s deposition testimony. Dr. Hansen offered the following testimony during his deposition:

Q. Is it not the case that the cardiotho-racic surgeon is the one who will determine whether he or she will operate on the patient ?
A. Yes.
Q. The decision whether to ultimately perform an atrial septal defect rests with the cardiothoracic surgeon in Jackson-Madison County, does it not?
A. Yes.
Q. Are you of the opinion then that Dr. Grimball breached the standard of care for cardiothoracic surgeons practicing in Jacksonr-Madison County, Tennessee, in completely ignoring the hospital records before performing the surgery on Mrs. Helderman?
MR. GORDON: Object to the form of the question.
THE WITNESS: Yes
Q. Are you also of the opinion that Dr. Grimball breached the standard of care for cardiothoracic surgeons practicing in Jackson-Madison County in performing surgery on Mrs. Helderman without the benefit of a history pertaining to what had happened to her in her care and treatment from May 17th, 1997, until May 19th, 1997?
A. Yes.
Q. And Mr. Gordon has asked you to assume certain things that may or may not have been said, but from your perspective on what we know, given that you just said there, that Dr. Smolin says it’s hemodynamically' insignificant, what we do know is that had Dr. Grimball reviewed the hospital charts and his own records, he would have found the same thing that you did reviewing his records, and that is that you, and that is that Dr. Smolin and Dr. Crenshaw believe this was a hemo-dynamically insignificant atrial septal defect.
A. I’d go stronger than that. I’d say not only would he have, but he had an obligation to find that, so yeah, I agree with you but I’d be a little stronger about it. I really condemn the fact that this patient got an operation without looking at the medical records. That just seems like a practice that needs to be condemned.
Q. And because he failed to fulfill that obligation, the surgery happened?
A. That’s the only way it could have happened, yes.

(emphasis added).

Upon reviewing Dr. Hansen’s deposition as a whole, Johnston v. Cincinnati, N.O. & T.P. Ry. Co., 146 Tenn. 135, 240 S.W. 429, 435 (1921), we conclude that Dr. Hansen’s statements regarding causation are not contradictory. From the aforementioned testimony, it is clear that Dr. Hansen’s opinions regarding causation are based upon his assumption that Helderman’s medical records contained documentation indicating, that Dr. Smolin had changed his diagnosis. As previously discussed, whether such documentation was, in fact, contained in her medical records at the time of her surgery is a disputed issue of fact which we must view in the light most favorable to the opponent of the motion at this preliminary stage. Wilson v. Patterson, 73 S.W.3d 95, 104 (Tenn.Ct.App.2001); Church v. Perales, 39 S.W.3d 149, 170 (Tenn.Ct.App.2000).

Additionally, we note that the aforementioned deposition testimony relied upon by the trial court in ruling on Dr. Smolin’s motion to strike was offered in response to questions addressing whether Dr. Grimball breached the standard of care. During his deposition, Dr. Hansen also provided the following testimony:

Q. “Assuming Dr. Grimball’s testimony to be correct that no such communication was ever received by him, Dr. Hansen is expected to render an opinion that there was a violation of the standard of care on the part of Dr. Smolin and/or his clinic staff for which he is responsible.” Is that a correct statement of your anticipated testimony?
A. Yes.
Q. Is it your opinion that Dr. Smolin breached the standard of care in his initial diagnosis that the atrial sep-tal defect was, in fact, significant and surgery was therefore warranted?
A. My answer to that would be, yes, I believe it’s below the standard of care to have ever thought that this patient had a hemodynamically significant atrial septal defect. I think that was a mistake that it was possible to recover from them because the patient actually didn’t go off to surgery, so it’s one of these mistakes where at least initially there was no harm done and so there’s a chance for correction at that point.
Q. We’ve been talking about cardiologists and cardiothoracic surgeons without really allowing you to define ■ those, ... I would like for you to define for me the scope of the cardiologist’s work versus the scope of the cardiothoracic surgeon’s work. Would you please do that for me?
A. Certainly. Cardiologists and cardiovascular surgeons start from different starting points.... That the cardiologist is involved with the assessment, diagnosis and treatment of disorders of the heart and the vascular system, and-but would not perform a surgical procedure that required an open heart surgery....
The surgeon, on the other hand, is not so involved in the diagnosis and medical treatment of a patient as he is with the surgical treatment of their — the problems that relate to the heart and the vascular system. So that would be the difference between the two.

(emphasis added). It is not entirely clear, as the trial court held, that Dr. Hansen testified in his deposition that Dr. Grimball is the sole proximate cause of Helderman’s injuries. As with his testimony regarding the standard of care, any contradictions in Dr. Hansen’s testimony regarding issues of disputed fact are properly left to the jury in weighing his testimony and assigning credibility. Gambill v. Middle Tenn. Med. Ctr., Inc., 751 S.W.2d 145, 151 (Tenn.Ct.App.1988).

“At the present preliminary stage of the proceedings, there should not be a dismissal for inconsistency in testimony of a witness unless it represents an unequivocal and irreconcilable conflict.” Id. at 151-52. Accordingly, we find that the trial court abused its discretion in striking portions of Dr. Hansen’s affidavit.

After striking portions of Dr. Hansen’s affidavit relating to the standard of care and causation, the trial court proceeded to grant Dr. Smolin’s motion for summary judgment, stating:

2. The Motion for Summary Judgment on behalf of the Defendants, Dr. Smolin and the Medical Specialty Clinic, P.C. is granted.
The Court finds that no genuine issue as to any material facts exist in this cause. Furthermore, the Plaintiffs have failed to show any proof that Dr. Smolin or his clinic was a proximate cause or a contributing cause to Mrs. Helderman’s surgery or to her suffering injuries. Plaintiffs own expert, Dr. Hansen, in his deposition testimony clearly places the sole proximate causation of Mrs. Helder-man having to undergo surgery upon Dr. Grimball’s actions or inactions. The Plaintiff has failed to meet the burden of proving by expert evidence that Dr. Smolin or his clinic breached the standard of care in this cause, or that Dr. Smolin’s negligent act or omission was the proximate cause of Mrs. Helder-man’s suffering same injuries.

Upon conducting a de novo review of the record, we cannot agree. Ás previously discussed, the seemingly inconsistent opinions offered by Dr. Hansen regarding the standard of care and causation are based upon the ultimate resolution of factual disputes to be decided by a jury.

“There can be more than one proximate cause of an injury.” Stokes v. Leung, 651 S.W.2d 704, 708 (Tenn.Ct.App.1982); see also Roberts v. Robertson County Bd. of Educ., 692 S.W.2d 863, 871 (Tenn.Ct.App.1985). “There is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result.” McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991); see also Jennings v. Case, 10 S.W.3d 625, 629-30 (Tenn.Ct.App.1999) (citing Bass v. Barksdale, 671 S.W.2d 476 (Tenn.Ct.App.1984)). As our supreme court has stated,

The géneral rule is that what is the proximate cause of an injury is a question for the jury; the court instructing them as to what the law requires to constitute it, and the jury applying the law to the facts. But whether the question is one to be determined by the jury depends on the facts of each case. Thus where the facts of the. particular case are controverted, and are of such a character that different minds might reasonably draw different conclusions therefrom, a question of facts is presented properly determinable by the jury.... But when the facts are undisputed and are susceptible of but one inference, the question is one of law for the court.

Fairbanks, Morse & Co. v. Gambill, 142 Tenn. 633, 222 S.W. 5, 10 (1919) (citations omitted); see also Southeastern Greyhound Lines, Inc. v. Groves, 175 Tenn. 584, 136 S.W.2d 512, 517 (1940).

Helderman has established that a genuine issue of material fact remains in this case, i.e., at what point, if at all, did Dr. Smolin’s amended diagnosis find its way into her medical records. Helder-man’s expert witness, drawing certain inferences from the facts in her favor, purports to testify that Dr. Smolin breached the applicable standard of care and was a proximate cause of her injuries.- Conversely, Dr. Smolin’s expert witness, drawing certain inferences from the facts in his favor, purports to testify that Dr. Smolin did not breach the applicable standard of care, and Dr. Grimball was the sole proximate cause of Helderman’s injuries. See Anders v. Stubblefield, No. 189, 1989 WL 48448, at *1, 1989 Tenn.App. LEXIS 341, at *5 (Tenn.Ct.App. May 9, 1989) (finding summary judgment inappropriate where the parties’ experts assumed certain facts were true when rendering their opinions). Taking "the facts in the light most favorable to Helderman, the evidence regarding whether Dr. Smolin actually communicated his changed diagnosis to Dr. Grimball remains in dispute and is subject to numerous inferences. See Prince v. Saint Thomas Hosp., 945 S.W.2d 731, 733-35 (Tenn.Ct.App.1996). Accordingly, the trial court erred in taking this fact to be undisputed and granting Dr. Smolin’s motion for summary judgment.

III.

Conclusion

For the reasons set forth herein, we reverse the decision of the trial court and remand this case for further proceedings consistent with this opinion. Costs of this appeal are to be taxed to the Appellee, Dr. Matthew Smolin, for which execution may issue if necessary.

      . An atrial septal defect is a "congenital heart defect in which there is an opening between the atria.” Taber’s Cyclopedic Medical Dictionary 186 (19th ed.2001).

      . An atrial septal defect can be either hemo-dynamically significant or hemodynamically insignificant. If the atrial septal defect is determined to be hemodynamically significant, then surgery is ordinarily required to repair the defect. Should testing reveal the defect to be hemodynamically insignificant, then surgery is usually not required to repair the defect.

      . In May of 2003, the circuit court entered an order, at Helderman’s request, dismissing Dr. Grimball and Cardiothoracic Surgery Center, P.L.C., from the lawsuit following a settlement agreement entered into between the parties. Therefore, the instant appeal is only concerned with the resolution of the issues as they relate to Dr. Smolin and Helderman.