author: FRANK G. CLEMENT, JR., J.,

text:
    In the Matter of the ESTATE OF Lucille Annetta SCHISLER.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    July 7, 2009 Session.
    Oct. 19, 2009.
    Permission to Appeal Denied by Supreme Court April 23, 2010.

      W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellants, Linda Lou Stem and Carroll Lynn Schisler, Sr.
    Charles W. Holt, Jr., Ben Boston, and Ryan P. Durham, Lawrenceburg, Tennessee, for the appellees, Iris Edwards Wix, Donald Edward Schisler, Ralph Truman Schisler and August Frederick Schisler.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which PATRICIA J. COTTRELL, P.J., M.S., and ANDY D. BENNETT, J., joined.

Two of a deceased mother’s six children appeal a jury’s specific findings that their mother’s last will was invalid because they had a confidential relationship with their mother and unduly influenced her to execute the will. Plaintiffs, the decedent’s four other children, commenced this action to contest the will the appellants offered for probate. On appeal, the appellants contend there is no material evidence to support the jury’s findings that they had a confidential relationship with their mother or that they exerted undue influence. Appellants also contend the trial court erred by admitting evidence of a criminal conviction of one of the appellants. Whether to admit the evidence was within the sound discretion of the trial court and we find the court did not abuse its discretion by admitting the evidence; moreover, the trial court gave a limiting instruction that evidence of the crime was only relevant as it pertained to motive and intent to influence the testatrix to change her will. As for the jury verdict, we find substantial and material evidence that supports the jury’s findings in the record. Accordingly, we affirm the trial court in all respects.

Lucille Annetta Schisler (hereinafter “Mrs. Schisler”) died on August 17, 2006, at the age of 80. She was survived by six children: Carroll, Donnie, Freddie, Iris, Linda, and Ralph. She lived most of her life on a family farm in Carroll County, Maryland. Because of deteriorating health, Mrs. Schisler relocated to Tennessee in December of 2004 to live with her son, Donnie. In May of 2005, she moved in with her daughter, Linda, who lived in Lawrence County, Tennessee, and she continued to reside with Linda until her death on August 17, 2006.

Prior to moving to Tennessee, Mrs. Schisler lived on a 110-acre family farm in Carroll County, Maryland, which she and her late husband bought in 1958. The farm was the main source of income for Mr. and Mrs. Schisler, and they raised their six children on the farm. Daughter, Iris, left the family home in 1967 and moved to Georgia with her husband. All four boys continued to work the family farm with their father, mother, and sister, Linda, until Donnie moved to Lawrence County, Tennessee in 1972. Thereafter, Ralph began working away from the farm. Mr. Schisler died in 1982. After his death, Mrs. Schisler and two of her sons, Freddie and Carroll, continued to work the farm. In 1983, Linda moved to Lawrence County, Tennessee with her husband.

Mrs. Schisler, Freddie, and Carroll continued to work the farm together until 2001 when a family meeting was called to discuss accusations that Freddie was stealing from the farm. At the conclusion of the family meeting, Freddie left the farm to live in Pennsylvania. After Freddie left, only Mrs. Schisler and Carroll remained to work the farm, and Carroll took charge of all farming operations.

On July 9, 2001, Mrs. Schisler executed a revocable family trust and a will. The family farm was transferred to the trust and became trust property. The beneficiaries of the trust were Mrs. Schisler and five of her children, Carroll, Donnie, Iris, Linda, and Ralph. Mrs. Schisler, however, for as long as she lived, was to be the primary beneficiary of the income from the trust, which consisted primarily of the income from the farming operation.

Pursuant to the trust, Carroll had the exclusive right to operate the family farm, which afforded him significant control over the income to be derived by the trust from the farming operations. The trust further provided that after Carroll’s death, or once Carroll ceased to operate the farm, Ralph had the right to operate the farm for life provided he continued to operate the farm. If and when Carroll and Ralph both died or ceased operating the farm, the trust would terminate, in which event the trustees were to distribute the trust assets to the trust beneficiaries — Mrs. Schisler, if she was still living, and the surviving children of Mrs. Schisler (excluding Freddie) or their descendants, per stirpes. All other assets belonging to Mrs. Schisler were to pass pursuant to her will, which provided that her estate was to be divided equally among her six children, including Freddie, or the descendants of a deceased child.

In December 2004, Mrs. Schisler left the family farm in Maryland because of her deteriorating health and moved to Tennessee to live with Donnie. Two months later, in February 2005, Mrs. Schisler suffered a mini-stroke. Thereafter, Mrs. Schisler contacted the attorney in Maryland who had drafted her trust and will in 2001. In a letter to the attorney, Mrs. Schisler voiced concerns regarding the trust and whether it was the proper method of insuring that Carroll would be able to farm the land for as long as he desired. Her letter also provided that she still wanted the children, except Freddie, to be able to vote on what to do with the property if Carroll stopped farming the land.

On May 19, 2005, just prior to moving in with her daughter, Linda, Mrs. Schisler traveled with Linda to Maryland to meet with the attorney. Linda, Carroll, and Linda’s husband attended the meeting Mrs. Schisler had with her attorney. At the time of this meeting, Mrs. Schisler’s estate consisted of the family farm, a one-fifth undivided interest in a parcel of real property in Baltimore County, Maryland (hereinafter “Windsor Mill Road property”), and a six-acre tract also located in Baltimore County (hereinafter “Dogwood property”). After consulting with the attorney, Mrs. Schisler made several amendments to the trust and her will. Notably, she removed the provision that gave Ralph the option to operate the farm. She also changed the designation of her personal representatives in her will by removing Ralph, Donnie, and Iris as her co-executors and appointing Carroll and Linda instead. The family farm and a money market account remained in the trust.

In the interim, tensions were building between Carroll and Ralph concerning the boundary that separated two adjacent tracts of land the two owned. The two tracts, which were previously part of the family farm, had been separately deeded to Carroll and Ralph by Mrs. Schisler in 1999. Mrs. Schisler became aware of the dispute between Carroll and Ralph during a visit by Carroll in August of 2005, when Carroll traveled to Tennessee to see his mother.

On September 1, 2005, while Carroll was visiting Mrs. Schisler at Linda’s home in Tennessee, Mrs. Schisler executed deeds conveying the family farm and the Dogwood property to Carroll. The deeds were prepared by Carroll’s girlfriend. After the family farm and the Dogwood property were conveyed to Carroll, Mrs. Schisler’s modest estate only consisted of a $5,000 money market account, her interest in the Windsor Mill Road property, and some tangible personal property.

In September or October of 2005, Linda and Donnie got into an argument during which Donnie pushed Linda out of his house and told her not to come back. Mrs. Schisler witnessed the incident. Also in October of 2005, Donnie took Mrs. Schis-ler’s money out of a lockbox Donnie and his wife shared with Mrs. Schisler. Mrs. Schisler became upset when she learned that Donnie had taken the money. When she requested that he return the money to her, he promptly complied.

In November 2005, Mrs. Schisler and Linda went to meet with a lawyer in Law-renceburg, Tennessee to change her will and revoke the inter vivos revocable trust. During the meeting, she informed her attorney, inter alia, that she shared a joint checking account with Carroll that she intended for him to have.

On November 15, 2005, Mrs. Schisler and Linda returned to the lawyer’s office at which time Mrs. Schisler revoked the trust, the only remaining asset of which was the money market account, and executed a will that revoked her prior wills. Mrs. Schisler also executed a Durable Power of Attorney on November 15, 2005, designating Carroll and Linda as co-attorneys-in-fact, and a Health Care Power of Attorney, in which she designated Linda as primary agent and Carroll as the alternate agent. Mrs. Schisler also purchased a certificate of deposit in Linda’s name on November 15, 2005.

The November 15, 2005 will contained a specific bequest of her one-fifth interest in the Windsor Mill Road property to her six children. The will, however, differed from the previous two wills in that no other property was specifically bequeathed to anyone, and the residuary estate, meaning everything but the Windsor Mill Road property, was bequeathed only to Carroll and Linda.

Following Mrs. Schisler’s death, Carroll and Linda filed a petition to admit the November 15, 2005 will to probate in common form. The will was admitted to probate in common form on October 31, 2006. Four days later, on November 3, 2006, Carroll and Linda submitted a petition to probate the will in solemn form. On December 4, 2006, Mrs. Schisler’s other four children, Donnie, Iris, Ralph, and Freddie, filed a Complaint in the Probate Court of Lawrence County to contest the November 15, 2005 will alleging that Carroll and Linda each had a confidential relationship with their mother and that they exercised undue influence to cause her to execute the November 15, 2005 will.

Prior to commencement of the jury trial concerning the validity of the November 15 will, Carroll filed a motion in limine to prevent Plaintiffs from presenting evidence concerning Carroll’s conviction for actions concerning the manner in which Carroll operated the family farm in Maryland and how he treated the farm animals, specifically aggravated cruelty to animals, abuse or neglect of animals, feeding garbage to swine, adulterating or misbranding food, selling adulterated or misbranded food, discharging pollutants into water, and unlawfully disposing of over 500 pounds of litter. The trial court heard arguments pertaining to the motion out of the presence of the jury. Counsel for Carroll argued that the conviction was irrelevant and any probative value that could be derived from the admission of Carroll’s conviction was substantially outweighed by the prejudicial effect it would have on the jury. Plaintiffs, on the other hand, argued that the convictions went to Carroll’s motive and intent to exercise undue influence over Mrs. Schisler, noting that due to his convictions regarding farm animals, he could not operate the farm in Maryland if animals were on it. The trial court denied the motion, but reserved the right to give limiting instructions to the jury concerning the limited relevance of the convictions. Thereafter, the case proceeded to a trial by jury.

During the cross-examination of Carroll, counsel for Plaintiffs sought to admit into evidence a record of Carroll’s conviction. Although he did not make a formal objection to the admissibility of the conviction, counsel for Carroll expressed some concern with the admission of the conviction because Carroll still had time to appeal the conviction. The trial court admitted the conviction into evidence, but instructed the jury that the conviction could only be considered to determine the credibility of Carroll, not the validity of the November 15, 2005 will.

At the conclusion of a four-day trial, the jury provided answers to seven interrogatories. The answers to the four most relevant interrogatories are as follows:

3. Do you find that Carroll Schisler, Sr. had a confidential relationship with Lucille Annetta Schisler at the time of the execution of the November 15, 2005 Will?
Yes X
No _
4. Do you find that the November 15, 2005 Will is invalid because it was obtained through the undue influence of Carroll Schisler, Sr.?
Yes, invalid X
No, valid
5. Do you find that Linda Stem had a confidential relationship with Lucille An-netta Schisler at the time of the execution of the November 15, 2005 Will?
Yes X
No __.
6. Do you find that the November 15, 2005 Will is invalid because it was obtained through the undue influence of Linda Stem?
Yes, invalid X
No, valid

Carroll and Linda filed a Motion for a New Trial on June 19, 2008, asserting that the trial court erred in admitting evidence concerning Carroll’s convictions. They also argued that the verdict was contrary to the weight of the evidence, specifically that there was no material evidence to support a finding that the November 15, 2005 will was obtained through the undue influence of Carroll or Linda, nor was there evidence of a confidential relationship with their mother, which would give rise to a presumption of undue influence. Plaintiffs filed a Motion for Discretionary Costs. Both motions were argued before the trial court after which the trial court denied the Motion for a New Trial and awarded Plaintiffs their discretionary costs, except for the requested travel expenses, which were denied. This appeal by Carroll Schisler and Linda Stem followed.

Analysis

Appellants present two principal issues on appeal: whether the trial court erred in admitting evidence pertaining to Carroll’s criminal conviction, and whether there is material evidence to support the jury’s finding that the November 15, 2005 will was invalid because it was obtained through undue influence of Carroll Schis-ler and Linda Stem.

Evidentiary Rulings

Appellants allege that the trial court erred in denying their pre-trial motion to exclude the criminal conviction of Carroll Schisler, and that it further erred in admitting the appellate record wherein his conviction was affirmed. A decision whether to admit or exclude evidence lies within the discretion of the trial court. See Young v. Hartley, 152 S.W.3d 490 (Tenn.Ct.App.2004) (citing Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn.Ct.App.2001)) (“Trial courts are accorded a wide degree of latitude in their determination of whether to admit or exclude evidence, even if such evidence would be relevant.”). Thus, this court reviews such decisions under an abuse of discretion standard, which provides that:

[A] trial court’s ruling “will be upheld so long as reasonable minds can disagree as to the propriety of the decision made.” A trial court abuses its discretion only when it “applies an incorrect legal standard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (citations omitted).

Appellants argued at trial that Carroll’s convictions were irrelevant and that the admission of such evidence was highly prejudicial, Pursuant to Tennessee Rule of Evidence 401, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Although normally admissible, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. “The admissibility of evidence under Rule 403 of the Tennessee Rules of Evidence is a matter within the trial court’s discretion and will not be reversed on appeal absent an abuse of that discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn.Crim.App.2006) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn.1997)).

Evidence of “crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes.” Tenn. R. Evid. 404(b). For example, such evidence may be relevant to show motive or intent. Tenn. R. Evid. 404(b), Advisory Comm’n Commt. Before the trial court may permit evidence of a prior crime, wrong, or act, the following procedures must be met:

(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record, the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Assuming these procedures are substantially followed, the trial court’s decision concerning the admissibility of the contested evidence is afforded great deference and will only be reversed if the trial court abused its discretion. State v. DuBose, 953 S.W.2d at 652.

We have determined the trial court substantially followed the above procedures. Specifically, the jury was not present during the hearing on the motion in limine. The fact that Carroll was convicted of the crimes was not disputed, only the finality was discussed. The trial court made a specific finding to explain why the evidence was admissible and the limited purpose for which the jury could consider the evidence, that being motive and intent to influence his mother to make a new will and revoke her previous wills. In balancing the probative value and the prejudicial effect, the trial court stated:

I certainly find that it’s relevant. I certainly see a danger for unfair prejudice. But it sounds like, at least, from [t]he Court’s exposure to it thus far, that it may be highly probative on what was happening in 2005 with regard to deeds, wills, revocation of trust, and other actions on behalf of the decedent in this case.

At trial, counsel for Carroll was the first to question Carroll concerning his convictions and his operation of the family farm. This was done during the direct examination of Carroll. On cross-examination, Plaintiffs counsel introduced the Opinion of the Court of Special Appeals of Maryland that affirmed his convictions. The following is an excerpt of the dialogue among counsel and the court that ensued:

Mr. Holt: I would like to make this from the Maryland Special Appeals the next exhibit, Your Honor.
The Court: Any objection?
Mr. Doerflinger: My understanding, in Maryland it’s not an enrolled opinion yet. There’s possibility of taking a certiorari.
The Court: I’m going to mark it, but let me tell the ladies and gentlemen of the jury, usually prior convictions in a case like this is relevant only if it goes to the credibility of the witness. In Tennessee law, if it was for theft or fraud or other types of dishonesty, it would clearly go to credibility because ... dishonest people might lie. Disputes over environmental and animal management issues might not go to credibility....
Mr. Holt: There is one count of mis-branding or mislabeling food, Your honor.
Mr. Doerflinger: But there’s no—
The Court: I’m also concerned there is not a final conviction. This will be marked and admitted as Exhibit 36. In other words, if it has any relevance at all in this case, it can only go to this witness’s credibility and not influence directly the validity or invalidity of the November, 2005, will.

The trial court ruled that Carroll’s conviction was admissible because it was relevant to whether Carroll had a motive or intent to influence his mother. As the trial court explained, any evidence of Carroll’s motive in asserting undue influence “would at least be circumstantial evidence of specific intent ... [and] anything that may be direct or circumstantial evidence of Carroll Schisler’s intent is relevant, and certainly if any of that was being communicated to the testator or testatrix, it may have been influential to her in some way, and therefore, be admissible.” In making this ruling the trial court correctly relied on In re Estate of Depriest, 733 S.W.2d 74 (Tenn.Ct.App.1986), in which this court discussed the significance of the state of mind of the person accused of wielding undue influence over another. In our analysis, we recognized that while motive has no bearing, “undue influence does require a specific intent to subject the mind of the testator to the influence and direction of the person exercising the influence.” Id. at 78. “[W]ith respect to undue influence shown by direct proof without the aid of the presumption [arising from a confidential relationship] ... the proof must show an intent by the dominant person to impose his or her will on the person being influenced.” Id. We therefore affirm the trial court’s ruling that the evidence was admissible for the limited purpose described by the trial court.

Material Evidence to Support Jury Findings

The jury found that Carroll and Linda both had a confidential relationship with Mrs. Schisler when the will was executed on November 15, 2005, and that the will was invalid because it was obtained through the undue influence of Carroll and Linda. Findings of fact by a jury in civil actions shall be set aside only if “there is no material evidence to support the verdict.” Tenn. R.App. P. 13(d).

In reviewing the evidence presented to a jury, the appellate court may not weigh the evidence or make our own credibility determinations. Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn.1994) (other citations omitted). We must take the strongest legitimate view of the evidence that favors the verdict, disregard all contrary evidence, and allow all reasonable inferences to sustain the verdict. Baines v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn.2000). When a record contains material evidence supporting a verdict, the judgment based on that verdict will not be disturbed on appeal. Alexander, 24 S.W.3d at 273-74 (Tenn.2000) (citing Reynolds, 887 S.W.2d at 823; Tenn. R.App. P. 13(d)). Only if we determine that the record does not contain material evidence to support the jury’s verdict can we set the judgment aside. Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn.1997); Jackson v. Patton, 952 S.W.2d 404, 405 (Tenn.1997); Next Generation, Inc. v. Wal-Mart, Inc., 49 S.W.3d 860, 863 (Tenn.Ct.App.2000).

Confidential Relationship

The jury found that both Carroll and Linda had a confidential relationship with Mrs. Schisler. A confidential relationship is one that gives one person dominion and control over another. Childress v. Currie, 74 S.W.3d 324, 328 (Tenn.2002) (citing Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn.1995)). “There are two sources of such confidential relationships: (1) ‘legal confidential relationships’ and (2) ‘family and other relationships.’ ” In re Estate of Brevard, 213 S.W.3d 298, 302 (Tenn.Ct.App.2006) (citing Matlock, 902 S.W.2d at 385-86). Typical familial relationships are not confidential relationships per se unless there is specific evidence of domination and control of one family member over the other. Brevard, 213 S.W.3d at 303 (citing Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn.Ct.App.2002)).

There is material evidence to support the jury’s findings that Carroll and Linda had a confidential relationship with Mrs. Schisler given the degree of dominion and control both had over their mother. Mrs. Schisler was partially incapacitated and living with Linda and dependent upon Linda during the last year of her life. Specifically, she depended on Linda to care for her, to feed her, to house her, and to transport her. As for Carroll, the confidential relationship arose out of their financial dealings and the fact that Mrs. Schisler was financially dependent on Carroll. Ever since her husband died in 1982, Mrs. Schisler had a joint account with Carroll, her social security checks were deposited into the joint account with Carroll, the income from Carroll’s farming operations, which was Mrs. Schisler’s only income but for her social security benefits, was deposited into the joint account, and Carroll was in complete control of the funds in that account and how they would be dispersed. The scope and extent of a person’s financial dependence on another is relevant and material to the issue of whether a confidential relationship exists, and there is material evidence in the record to support the finding that Mrs. Schis-ler was very dependent on Carroll for her financial well-being.

We, therefore, conclude that the record contains material evidence supporting the jury’s findings that both Carroll and Linda had a confidential relationship with Mrs. Schisler.

Undue Influence

The jury also held that both Carroll and Linda had a confidential relationship with Mrs. Schisler. Proof of a confidential relationship is not, by itself, sufficient to make out a prima facie claim of undue influence. Kelley, 96 S.W.3d at 198. Contestants must also show the existence of other suspicious circumstances that would show that the November 15, 2005 will was not entirely Mrs. Schisler’s free and independent act. See id. Suspicious circumstances of undue influence often include:

(1) the existence of a confidential relationship between the testator and beneficiary;
(2) the testator’s physical or mental deterioration;
(8)the beneficiary’s active involvement in procuring the will;
(4) secrecy concerning the will’s existence;
(5) the testator’s advanced age;
(6) the lack of independent advice in preparing the will;
(7) the testator’s illiteracy or blindness;
(8) the unjust or unnatural nature of the will’s terms;
(9) the testator being in an emotionally distraught state;
(10) discrepancies between the will and the testator’s expressed intentions; and
(11) fraud or duress directed toward the testator.

Id. at 196.

The existence of a confidential relationship, together with a transaction by which the dominant party obtains a benefit from the other party or another suspicious circumstance, triggers a presumption of undue influence. Roberts v. Chase, 25 Tenn.App. 636, 166 S.W.2d 641, 650-51 (1942). This presumption can only be rebutted by clear and convincing evidence of the fairness of the transaction. Richmond v. Christian, 555 S.W.2d 105, 107 (Tenn.1977). The difficulty in proving the fairness of a transaction varies depending on the circumstances of a particular case and the strength of the presumption of undue influence. Id. at 108. A lack of suspicious circumstances can rebut the presumption. Parish v. Kemp, 308 S.W.3d 884, 891 (Tenn.Ct.App.2008) (citing Simmons v. Foster, 622 S.W.2d 838, 841 (Tenn.Ct.App.1981)).

The evidence submitted by the contestants establishes at least five suspicious circumstances beyond the existence of the confidential relationship. First, there is material evidence in the record that Mrs. Schisler’s mental and physical health had deteriorated, due in part to the stroke she suffered in 2005, and that both of them played an active role in procuring the November 15, 2005 will and the revocation of the family trust. Moreover, both of them accompanied Mrs. Schisler to the meeting with the Maryland lawyer in 2005, when Mrs. Schisler made substantial changes to her estate planning that specifically bene-fitted Carroll and Linda. Further, Carroll (and his girlfriend) assisted Mrs. Schisler by preparing the deeds to convey the family farm and the Dogwood property to Carroll, and Carroll drove his mother to the courthouse to have the deeds executed and notarized. The record also reveals that during the time period relevant to the issues, a host of disturbing events had arisen within the family that caused Mrs. Schisler to be emotionally distraught. Some of the more relevant events were succinctly stated by the trial court during the Motion for New Trial hearing:

She was made to believe that Ralph was encroaching on the farm with the fence; and that Donnie was stealing her mon-ey_ This Court is certainly comfortable in letting the will contest come out as it did in this Tennessee court; and let the parties then litigate in Maryland the validity of the deeds.... The case did ... at least subject the jury and [t]he Court to a lot of alleged misconduct by the various children or siblings. Those disputes were oftentimes known by the testatrix. And if she accepted the ■wrong person’s spin on those disputes, it could have influenced her making of her will and these deeds.

We also note that Mrs. Schis-ler was not afforded the benefit of independent advice due to the fact that either Carroll or Linda were present whenever Mrs. Schisler sought the assistance of an attorney. When it is difficult to determine the fairness of a transaction, independent advice may be sufficient to overcome the presumption of undue influence. Richmond, 555 S.W.2d at 107-08. As the Tennessee Supreme Court explained in Turner v. Leathers, “independent advice means that the adviser must not only be competent but independent.” 191 Tenn. 292, 232 S.W.2d 269, 271 (1950). In other words, the adviser must be so disassociated from the interests of the intended do-nee as to be in a position to advise the donor impartially and confidently as to the consequences of the intended gift. Id. Here, the evidence fully supports a finding that the advice Mrs. Schisler received from the Lawrenceburg attorney was not independent given the active roles Carroll and Linda played.

We, therefore, conclude that the record contains material evidence supporting the jury’s findings that both Carroll Schisler and Linda Stem had a confidential relationship with Mrs. Schisler, that they did not overcome the presumption that the will was obtained through the undue influence of Carroll Schisler and Linda Stem and, therefore, the November 15, 2005 will was invalid.

In Conclusion

The judgment of the trial court is affirmed in all respects and this matter is remanded with costs of appeal assessed against Appellants, Carroll Lynn Schisler, Sr. and Linda Lou Stem.

      . A joint farm account was set up in 1982 between Carroll, Freddy, and Mrs. Schisler.

      . Freddie was expressly excluded from the trust. The trust stated in Item 1.5 that Freddie had already received "machinery and other assets" that represented his share of the family farm. Freddie was, however, a residuary beneficiary of the will, but the family farm did not pass pursuant to the will.

      . Mrs. Schisler had to be taken to dialysis often, began suffering from various heart problems, and had very poor eyesight.

      .The deeds to the family farm and Dogwood property executed on September, 1, 2005, from Mrs. Schisler to Carroll are the subject matter of an undue influence lawsuit pending in Maryland. Carroll sold the Dogwood property on February 20, 2006, for $85,000; he retained ownership of the farm in Maryland, which had an estimated value of approximately $195,670.

      . This joint checking account had formerly been used as the farm account set up in 1982. Carroll also deposited Mrs. Schisler’s social security checks into this joint checking account.

      . By November 17, 2006, the estimated value of the CD was $10,341.22.

      . The relevance of Carroll's convictions for aggravated cruelty to animals, abuse or neglect of animals, feeding garbage to swine, adulterating or misbranding food, selling adulterated or misbranded food, discharging pollutants into water, and unlawfully disposing of over 500 pounds of litter arose from the fact that under Maryland law Carroll may have been prohibited from running a farming operation or he may have been substantially restricted in the type of farming he would be permitted to operate, which may have rendered it financially impractical for Carroll to maintain a farming operation on the trust property in Maryland. The trust provided that once Carroll “ceased to operate the farm,” Ralph had the right to operate the farm. As a consequence, Carroll ran the risk of forfeiting his right to operate the farm.

      . Legal confidential relationships are fiduciary relationships by nature and are confidential per se because of the status of the parties. Kelley v. Johns, 96 S.W.3d 189, 195 (Tenn.Ct.App.2002).

      . An unrestricted power of attorney creates a confidential relationship between the parties. Matlock, 902 S.W.2d at 386. However, an unexercised power of attorney does not in and of itself create a confidential relationship. Childress, 74 S.W.3d at 329.

      . Following her stroke, Mrs. Schisler had very limited vision and a host of medical problems during the last couple years of her life.


source: Caselaw Access Project

author: J. STEVEN STAFFORD, J.,

license: Public Domain

text:
    Steve STAMSON, Clerk of Juvenile Court of Shelby County, Tennessee v. David LILLARD, et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 14, 2009 Session.
    Nov. 5, 2009.
    Application for Permission to Appeal Denied by Supreme Court April 14, 2010.

      Brian L. Kuhn and Robert B. Rolwing, Memphis, Tennessee, for the Appellants, David Lillard, Chairman of the Board of Commissioners of Shelby County, Tennessee, and A.C. Wharton, Jr., Mayor of Shelby County, Tennessee.
    David F. Kustoff, Memphis, Tennessee, for the Appellee, Steve Stamson, Clerk of Juvenile Court of Shelby County, Tennessee.
   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, P.J, W.S., and DAVID R. FARMER, J., joined.

This appeal involves the application of Tenn.Code Ann. § 8-20-101 et seq. to civil service positions in Shelby County. The Juvenile Court entered a consent judgment on a salary petition filed by the Juvenile Court Clerk pursuant to Tenn. Code Ann. § 8-20-101 et seq. This judgment allowed the Juvenile Court Clerk to fill certain civil service positions. When the positions were not filled, the Juvenile Court Clerk filed a Petition for Contempt. Subsequently, the Juvenile Court entered judgment on the Petition for Contempt. Finding that the Juvenile Court did not have subject matter jurisdiction to award relief pursuant to Tenn.Code Ann. § 8-20-101 et seq., we vacate its judgments and dismiss the case.

Background

This case began on June 25, 2008, when Steve Stamson, Clerk of the Juvenile Court of Shelby County (“Appellee”), filed a salary petition in the Juvenile Court of Shelby County. In this petition, Appellee requested, pursuant to Tenn.Code Ann. § 8-20-101 et seq., the authority to fill five classified positions in his office. Appellee named as defendants to this petition David Lillard, Chairman of the Board of Commissioners of Shelby County and A.C. Wharton, Jr., Mayor of Shelby County (“Appellants”). Appellants answered the petition on July 1, 2008.

Subsequently, the parties entered into a Consent Judgment on July 31, 2008. The Consent Judgment states that the petition was properly filed pursuant to TenmCode Ann § 8-20-101, et seq., and that there is a need to fill the requested positions. Additionally, the Consent Judgment states that it does not serve as a waiver to the issue of whether the civil service positions are subject to the jurisdiction of the Juvenile Court under TenmCode Ann. § 8-20-101, et seq. Further, the Consent Judgment required that all salaries be in compliance with the 2008-2009 Shelby County Salary Policy. The referenced Salary Policy stated that the County Commission had established a select oversight committee to administer the policy. This select oversight committee was established by the Hiring Freeze Resolution adopted by the County Commission on June 2, 2008 to reduce personnel costs by reducing employment through attrition. Under the Hiring Freeze Resolution, the select oversight committee must determine that a vacant position is critical to the operation of county government and authorize the position to be filled.

Appellant, prior to filing his petition, had sought permission from the oversight committee to fill the positions at issue. Prior to being denied permission by the oversight committee on June 30, 2008, Appellee filed his petition in the Juvenile Court. Upon being denied permission by the oversight committee, Appellee appealed to the County Commission’s Budget Committee in accordance with the Hiring Freeze Resolution. After meeting on the issue on August 20, 2008, the Budget Committee denied Appellee’s request. Appellee did not appeal this decision. Appellee had the option of appealing the decision to the County Commission through a writ of cer-tiorari. Tenn. Code Ann. § 27-9-101 et seq.

On September 22, 2008, Appellee filed a petition for contempt in the Juvenile Court based on the Consent Judgment. In his petition, Appellee sought to have the Juvenile Court hold Appellants in civil contempt for refusing to post the requested positions. The Juvenile Court heard the petition on December 10, 2008 and entered an Order of Judgment on February 2, 2009. The Juvenile Court found that neither the Appellants nor the Shelby County Government, which was not a party, were in contempt of court. The court went on to hold that Shelby County civil service employees were subject to the Civil Service Merit Act for Shelby County and that the five positions at issue were civil service positions and not subject to the salary petition law. The trial court, however, held that the consent order was valid as it was conditioned on the Civil Service Merit Act. Additionally, the Juvenile Court went on to find that the oversight committee conflicted with the Shelby County Civil Service Merit Act, that the Shelby County Government had failed to comply with the Shelby County Civil Service Merit Act, and that the Appellee could fill the positions and the county must fund the positions. Appellants appeal from this Order.

On appeal, Appellants present the following issues for our review:

1. Whether the trial court lacked subject matter jurisdiction in ruling about Shelby County civil service employees under the Tennessee Anti-Fee Statute, Tenn.Code Ann. § 8-20-101, et seq.?

2. Whether the trial court erred in enforcing a salary petition consent order, using the vehicle of a petition for contempt?

3. Whether the trial court erred in granting enforcement of a salary petition order without the proper parties before it?

4. Whether the trial court erred in ruling that the Shelby County Commission’s temporary hiring Freeze Resolution unlawfully conflicts with the Shelby County Civil Service Merit Act, 1971 Tenn. Priv. Acts, ch. 110.

We review the trial court’s findings of fact de novo with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). No presumption of correctness, however, attaches to the trial court’s conclusions of law and our review is de novo. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Analysis

Appellants first contend that the trial court did not have subject matter jurisdiction to hear this case. Appellants specifically assert that because the positions at issue are all civil service positions, the salary petition law provided in Tenn. Code. Ann. § 8-20-101 et seq., is not applicable but instead, the Shelby County Civil Service Merit Act controls.

“Courts derive their subject matter jurisdiction from the Constitution of Tennessee or from legislative act, and cannot exercise jurisdictional powers that have not been conferred on them expressly or by necessary implication.” Dishmon v. Shelby State Community College, 15 S.W.3d 477, 480 (Tenn.Ct.App.1999) (citations omitted). This case originated with a salary petition filed by Appellee as stated in his petition, “pursuant to Tenn.Code. Ann. § 8-20-101, et seq.” Subsequently, the trial court entered a consent judgment requiring the positions to be filled. Wflien they were not filled, Appellee brought a contempt petition asking that the Appellants be held in civil contempt for failure to comply with the consent judgment.

This Court has previously addressed the issue of the application of the Shelby County Civil Service Act and Tenn. Code. Ann. § 8-20-101, et seq., to civil service positions in Shelby County. See Patterson v. Rout, W2001-01769-COA-RB-CV, 2002 WL 1592674 (Tenn.Ct.App.2002). In Patterson, we held “that Tenn. Code Ann. § 8-20-101, et seq., is suspended by the [Shelby County Civil Service] Act with respect to those employees governed by the Act.” Id. at *2. Section 8-20-112 of the Tennessee Code provides:

In any county having a civil service system for the sheriffs department pursuant to Chapter 8, part 4 of this title or other provision of general law or the provisions of a private act, or a civil service system for all county employees pursuant to the provisions of a private act, the employment or termination of employment of any deputy or assistant in any office covered by the chapter shall be pursuant to the provisions of such civil service system, and the provisions of § 8-20-109 shall not apply to such county.

TenmCode. Ann. § 8-20-112 (1993)(em-phasis added). A civil service system for Shelby County was created by the legislature with a private act. Tenn. Priv. Acts. Ch. 110 (1971). As stated by our Supreme Court, “the creation of a civil service system for a local government is a legitimate objective of the General Assembly, and one which it may accomplish within rather broad limits.” Shelby County Civil Service Merit Board v. Lively, 692 S.W.2d 15, 19 (Tenn.1985). When a county employee is governed by a civil service system, the civil service system governs all aspects of employment, including terms of employment, promotion, discipline and termination. Id. at 16. Because the Shelby County Civil Service Act governs classified employees, Id. at ⅜5, and it is undisputed that the positions at issue are classified positions, we find that they are governed by the Shelby County Civil Service Act and that Tenn.Code. Ann. § 8-20-101 et seq., does not apply to those positions.

In his brief, Appellee, citing to Tenn.Code. Ann. § 8-20-112 (1993), argues that a county with a civil service system is exempted only from the provisions of TenmCode. Ann. § 8-20-109, which eliminates termination at will, and not the remaining provisions of Tenn. Code. Ann. § 8-20-101 et seq. This, however, is the same argument made by the appellee in Patterson, which this Court expressly disagreed with. Patterson, 2002 WL 1592674 at ⅞3-4. The General Assembly amended TenmCode Ann. § 8-20-101 et seq., in 1984 by adding section 112. This section includes two provisions, one that mandates that the employment of civil service employees be in accordance with the civil service act which they are governed by, and a second that provides that section 109 shall not apply to a county covered by a civil service act. Section 112 serves two purposes.

First, it requires that where a civil service system is enacted, terms of employment for employees governed by the act “shall” be in accordance with that system. Second, it specifically mandates that contrary to the general provisions, employees governed by a civil service act are not deemed terminable at will.

Patterson, 2002 WL 1592674 at *4. We have been provided with no reason to change our position, and therefore must hold that the Shelby County Civil Service Act suspends all provisions of TenmCode Ann. § 8-20-101 et seq.

Appellee has submitted that we should allow the trial court’s ruling to stand because the parties entered into a consent order. However, “parties cannot confer subject matter jurisdiction on a trial or an appellate court by appearance, plea, consent, silence, or waiver.” Dishmon, 15 S.W.3d at 480. Therefore, the parties actions of entering into a consent order are irrelevant to our decision on subject matter jurisdiction. Further, Appellants expressly reserved their right to contest the trial court’s subject matter jurisdiction in the Consent Judgment.

Appellee also argues that this Court should allow the Consent Judgment to stand as it is similar to the consent agreement provided for in Tenn.Code. Ann. § 8-20-102. Because the positions at issue are civil service positions, Tenn. Code Ann. § 8-20-101 et seq., including the provisions for a consent agreement, are not applicable. Since TenmCode Ann. § 8-20-101 et seq. does not apply in this situation it is irrelevant whether the Consent Judgment is akin to the consent agreement provided for by statute.

Accordingly, we hold that the Juvenile Court did not have subject matter jurisdiction to award relief pursuant to Tenn.Code Ann. § 8-20-101 et seq. Finding that the Juvenile Court did not have subject matter jurisdiction, we must also find that the Consent Judgment entered was a void judgment.

A void judgment is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgement, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to be decided or the relief assumed to be given.

New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 883 (1930). “The question of whether a judgment is void ‘is always one of jurisdiction, that is, whether the order, judgment or process under attack comes within the lawful authority of the court or judge rendering or issuing it.’ ” Edwards v. State, 269 S.W.3d 915, 920 (Tenn.2008) (quoting State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn.1979) overruled on other grounds). The Juvenile Court did not have jurisdiction to award relief pursuant to a salary petition brought under Tenn.Code Ann. § 8-20-101 et seq. See Patterson v. Rout, 2002 WL 1592674 at *2. Therefore any judgment entered pursuant to this petition is void on its face. Finding that the juvenile court did not have subject matter jurisdiction to award the relief pursuant to TenmCode Ann. § 8-20-101 et seq., we must find that both the consent judgment and the order of judgment from the contempt petition are void. Accordingly, we must vacate these judgments and dismiss the case. All other issues are pretermit-ted.

Conclusion

We hold that the juvenile court did not have subject matter jurisdiction under Tenn.Code Ann. § 8-20-101 et seq. The existence of subject matter jurisdiction is a fundamental requirement and dismissal is required whenever it is demonstrated that it does not exist. See Tenn. R. Civ. P. 12.08. “[Wjhen an appellate court determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment and dismiss the case without reaching the merits of the appeal.” Dish-mon, 15 S.W.3d at 480 (citations omitted). Accordingly, we vacate the judgment of the juvenile court and dismiss the case. Costs of this appeal are taxed to Appellee, Steve Stamson, Clerk of the Juvenile Court of Shelby County, for which execution may issue if necessary.


text:
    Doris JONES and Billy Jones v. Lisa June COX.
    Court of Appeals of Tennessee, at Jackson.
    Oct. 21, 2008 Session.
    Nov. 25, 2008.
    Application for Permission to Appeal Denied by Supreme Court June 1, 2009.

      Winston S. Evans, Jeffrey J. Switzer, Nashville, TN, for Appellant.
    William B. Ryan, Memphis, TN, for Ap-pellee.
   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the court,

in which DAVID R. FARMER, J, and HOLLY M., KIRBY, J., joined.

This is a Tenn. RApp. P. 9 appeal from the trial court’s denial of Appellant/Defendant’s motion to dismiss the Appel-lees/Plaintiffs’ complaint for legal malpractice. Appellant, a licensed attorney, represented the Appellees in a lawsuit following an automobile accident. Appellant failed to effect service of process on the party-defendant to that suit. Appellees retained other counsel and filed a legal malpractice lawsuit against Appellant. Appellees’ new counsel made a strategic decision to withhold service of process on Appellant pending the outcome of the underlying case. Appellant filed a motion to dismiss pursuant to Tenn. R. Civ. P. 4.01(3) for intentional delay of service of process. The trial court denied the motion to dismiss, and this appeal followed. We reverse and remand.

On August 27, 2003, Doris Jones was involved in a car accident in Jackson, Tennessee. On that date, Ms. Jones’ vehicle was struck from the rear by a vehicle driven by Susannah P. Johnson. As a result of the accident, Ms. Jones suffered an injury to her neck.

Following the accident, Ms. Jones and her husband, Billy J. Jones (together “Ap-pellees”), retained Appellant Lisa June Cox to provide legal representation in their lawsuit against Ms. Johnson. On August 23, 2004, Ms. Cox filed a complaint against Ms. Johnson in the Circuit Court at Madison County on behalf of the Joneses. On the same day, Ms. Cox prepared and caused a summons to be issued and served on Ms. Johnson at a Jackson, Tennessee address. The summons was returned “unserved” on August 26, 2004. The deputy sheriff who attempted to serve Ms. Johnson made the following notation on the summons: “Not found, moved out approximately three months ago to Powder Springs, GA.”

On or about December 1, 2005, the Joneses met with Ms. Cox. At that meeting, Ms. Cox first informed the Joneses that their case against Ms. Johnson might be in trouble due to the failure to effect service of process on Ms. Johnson. On February 13, 2006, Ms. Cox sent a letter to the Joneses, informing them, among other things, that process had not been served on Ms. Johnson, and that Ms. Cox had not obtained an address for Ms. Johnson. In her letter, Ms. Cox opines: “I believe that the time limit has passed for us to find [Ms. Johnson] and service to be reissued.” Ms. Cox informs the Joneses that, if she is unsuccessful in locating and serving Ms. Johnson, then “you [the Joneses] may want to see another lawyer ... or contact my insurance carrier directly.” Upon receipt of the letter, the Joneses dismissed Ms. Cox as their attorney, and retained William Ryan as their counsel. Mr. Ryan was able to locate and serve Ms. Johnson on March 2, 2006. In response, Ms. Johnson (and her insurance carrier) filed a motion to dismiss the Jones’ complaint and/or for summary judgment. As grounds, Ms. Johnson averred that the complaint and summons were not served within the time allowed under Tennessee law; consequently, Ms. Johnson argued that the applicable statute of limitations had expired, resulting in a bar to the Jones’ lawsuit against her. On August 8, 2006, the circuit court granted Ms. Johnson’s motion, thereby dismissing the Jones’ complaint against Ms. Johnson.

On November 20, 2006, the Joneses, through their new attorney, filed a complaint for legal malpractice against Ms. Cox, alleging that she had failed to exercise due diligence in attempting to effect service of process on Ms. Johnson. Although a summons was issued on that same day, the Jones’ attorney did not attempt service. Some nine months later, on August 28, 2007, a second summons was issued and service on Ms. Cox was attempted. Service was made on September 7, 2007.

On October 11, 2007, Ms. Cox filed a motion to dismiss the complaint pursuant to Tenn. R. Civ. P. 12.02(5) and (6). On January 8, 2006, the Joneses filed a response to Ms. Cox’s motion to dismiss. The Affidavit of their attorney, Mr. Ryan, was filed as an exhibit to the response. Therein, Mr. Ryan does not deny delaying service of process in the Jones’ case against Ms. Cox; his reasons, as set out in the affidavit, are as follows:

3. After I became involved in the [Jones’] case against Ms. Johnson, I put Ms. Cox’s insurance carrier on notice of a potential legal malpractice claim against Ms. Cox. During the [Jones’] lawsuit against Ms. Johnson, I worked with Winston Evans, who was an attorney hired by Lisa June Cox’s insurance carrier....
5. After the [Jones’] lawsuit against Ms. Johnson was dismissed ... and while the case was on appeal, I had numerous discussions in the late summer/early fall of 2006 with Winston Evans concerning resolution/settlement of the [Jones’] legal malpractice claim against Lisa June Cox.... [Settlement discussions did not prove to be fruitful.
6. On October 9, 2006, I advised Mr. Evans that I was going to proceed forward and file a lawsuit ... against Ms. Cox....
8. Thereafter, the parties discussed entering into a tolling agreement to avoid the [Joneses] having to unnecessarily file suit against Ms. Cox while the [Jones’] case against Ms. Johnson was still pending. But the parties were not able to agree....
9. On November 20, 2006, while their case against Ms. Johnson was still on appeal, the [Joneses] filed a lawsuit against Lisa June Cox alleging legal malpractice.... A Summons was issued for service on Lisa June Cox on that same date.
10. At the time that the [Jones’] lawsuit was filed against Ms. Cox, I believed that the [Joneses] had ninety (90) days under Tenn. R. Civ. P. 8 to serve Ms. Cox with a copy of the Complaint and Summons. I believed, per the terms of Tenn. R. Civ. P. 8, that if service was not made on Ms. Cox within the initial ninety (90) day period the summons could be re-issued on Ms. Cox at any time within one (1) year and the statute of limitations would be tolled. Moreover, I believed that if service was consummated on Ms. Cox that she would file a motion to stay the proceedings until the [Jones’] case against Ms. Johnson was resolved....
11. Oral argument in the [Jones’] case against Ms. Johnson was held on April 18, 2007.
12. On April 20, 2007, I called Winston Evans.... During this call, I notified Mr. Evans that the [Joneses] had filed a lawsuit against [Lisa June Cox] alleging legal malpractice....
13. Believing that I had until at least November 20, 2007 to get the Summons re-issued, I waited to serve Lisa June Cox with process until after the Tennessee Court of Appeals rendered its decision. Had the Tennessee Court of Appeals not rendered its decision by the end of October of 2007, I would have proceeded to serve Ms. Cox with the lawsuit.
14. As it happened, the Tennessee Court of Appeals issued its decision on July 16, 2007....
15. After the Tennessee Court of Appeals decision I contacted Mr. Evans to discuss the ... case against Ms. Cox. On August 6, 2007, I sent a waiver of service form ... to Mr. Evans.... Mr. Evans contacted me on August 19, 2007 and advised that he could not execute the waiver.... On August 20, 2007, Mr. Evans contacted me and advised that he had authority from Ms. Cox to accept service....
16. Thereafter, I caused another Summons to be issued and served on Lisa June Cox. The Summons was issued on August 28, 2007 and service was made on Ms. Cox ... on September 7, 2007.
17. I did not intentionally delay service of the complaint on Ms. Cox to achieve any tactical advantage or benefit. Service on Ms. Cox was solely withheld in order to see whether the case against Ms. Johnson would be salvaged. If the case against Ms. Johnson were salvaged there would be no need to proceed against Ms. Cox. Once the Tennessee Court of Appeals affirmed the trial court’s decision dismissing the case, and the only avenue left was a permissive appeal to the Tennessee Supreme Court, Ms. Cox was served with the lawsuit.

Ms. Cox’s motion to dismiss was denied by the trial court’s Order of February 4, 2008. On February 28, 2008, Ms. Cox filed a motion seeking permission to appeal the trial court’s decision to this Court pursuant to Tenn. R.App. P. 9. On March 28, 2008, the trial court entered an order granting Ms. Cox permission to seek a Tenn. R.App. P. 9 appeal. By Order of May 5, 2008, this Court granted Ms. Cox’s Tenn. R.App. 9 application for interlocutory appeal. Ms. Cox raises one issue for review:

Does an intentional nine and one-half month delay in service of a Summons after filing of a Complaint render the filing of the Complaint “ineffective” pursuant to T.R.C.P. 4.01(3)?

This issue involves a question of law. As such, we review the trial court’s decision de novo upon the record with no presumption of correctness. Tenn. R.App. P. 13(d). As this Court recently discussed in Watson v. Garza, 316 S.W.3d 589 (Tenn.Ct.App.2008):

Because the trial court’s jurisdiction of the parties is acquired by service of process, proper service of process is an essential step in a proceeding. The record must establish that the plaintiff complied with the requisite procedural rules, and the fact that the defendant had actual knowledge of attempted service does not render the service effectual if the plaintiff did not serve process in accordance with the rules.
“The Tennessee Rules of Civil Procedure govern the service of process, and the Supreme Court has held that the Rules of Civil Procedure are ‘laws’ of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by the Court and adopted by the General Assembly.” “Service of process must strictly comply to Rule 4 of the Tennessee Rules of Civil Procedure.”

Id. at 593 (internal citations omitted).

Tenn. R. Civ. P. 4.01 reads, in relevant part, as follows:

4.01. Summons; Issuance; By Whom Served — (1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and the return indorsed thereon shall be proof of the time and manner of service ....
* * ⅜
(3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.

Subsection (3) of the Tenn. R. Civ. P. 4.01 was adopted by our Supreme Court on December 10, 2003, and became effective July 1, 2004. It is undisputed that the Jones’ cause of action against Ms. Cox accrued on December 1, 2005, when Ms. Cox informed the Joneses that their case against Ms. Johnson might be fatally flawed due to lack of service of process. The applicable statute of limitations for legal malpractice claims is one-year from the accrual thereof. Tenn.Code Ann. § 28-3-104(a)(2). A legal malpractice action accrues at the time the plaintiff knows, or should (in the exercise of reasonable diligence) know that an injury has occurred. See, e.g., John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn.1998). The Joneses filed their complaint for legal malpractice against Ms. Cox on November 20, 2006, which was within the applicable statute of limitations. A summons was issued on that same day, but, as stated in Mr. Ryan’s affidavit, he withheld service of process on Ms. Cox, pending the outcome of the Jones’ case against Ms. Johnson. Another summons was issued nine months later on August 28, 2007, with service being made on Ms. Cox on September 7, 2007. The issue before us is whether this delay of service of process rendered the filing of the complaint ineffective, thus resulting in the expiration of the one year statute of limitations.

This Court recently addressed the applicability of Tenn. R. Civ. P. 4.01(3) in The Estate of Robyn Butler; et al. v. Lamplighter Apartments, et al., 278 S.W.3d 321 (Tenn.Ct.App.2008), wherein we held that:

The plaintiffs filed a Complaint and obtained issuance of summons for service on each defendant prior to October 14, 2005. The filing of the initial Complaint, however, was not effective because counsel for Plaintiffs intentionally caused the delay of prompt service of a summons. See Tenn. R. Civ. P. 4.01(3). The plaintiffs did not effectively file a complaint until after the statute of limitations had expired. Accordingly, all of the plaintiffs’ claims are time barred.

Id. at 323-24.

Likewise, the Jones’ attorney admits in his affidavit that he did not attempt service of process on Ms. Cox because he was awaiting the outcome of the appeal in the underlying case. Although we concede that Mr. Ryan’s strategy was logical given the fact that, had the dismissal of the Jones’ case against Ms. Johnson been reversed, a malpractice suit against Ms. Cox would not be necessary, the rules simply do not allow attorneys to participate in this sort of waiting game. Under Tenn. R. Civ. P. 4.01(3) it is the intent to withhold service of process that is the test. From the facts in the record, and in light of Mr. Ryan’s own sworn statements, it is clear, that he intentionally withheld service of process in this case, albeit for a very reasonable purpose. As we determined in Butler, supra, an intentional delay under Tenn. R. Civ. P. 4.01(3) mandates a conclusion that the original complaint was not effectively filed. Regardless of the savings exceptions set out in Tenn. R. Civ. P. 3. (upon which the Joneses rely), the intent to withhold service of process makes the filing of the complaint on November 20, 2006 ineffective. Although a second summons was issued within a year of the initial summons, this did not toll the applicable statute of limitations.

For the foregoing reasons, we reverse the order of the trial court, and remand for entry of an order granting Ms. Cox’s motion to dismiss. Costs of this appeal are assessed against the Appellees, Doris and Billy J. Jones, for which execution may issue if necessary.

      . Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion in writing: (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted....

      . Rule 9. Interlocutory Appeal by Permission from the Trial Court. — (a) Application for Permission to Appeal; Grounds. — Except as provided in Rule 10, an appeal by permission may be taken from an interlocutory order of a trial court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only upon application and in the discretion of the trial and appellate court. In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the courts' discretion, indicate the character of the reasons that will be considered: (1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entiy of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) tire need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment. Failure to seek or obtain interlocutory review shall not limit the scope of review upon an appeal as of right from entry of the final judgment.

      . Tenn. R. Civ. P. 3 provides: "All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such tiling of a complaint, whether process be issued or not issued and whether process be returned served or un-served. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint.”


text:
    Mattie PIANA, et al. v. OLD TOWN OF JACKSON, et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Nov. 19, 2008 Session.
    Feb. 6, 2009.
    Application for Permission to Appeal Denied by Supreme Court Sept. 28, 2009.

      David W. Camp, Jackson, TN, for Appellant, Mattie Piaña, et al.
    David I. Feigelson, Memphis, TN, for Appellee, Brooks Shaw & Son Old Country Store Inc. Kyle C. Atkins and Terri Smith Crider, Humboldt, TN, for Appellee, Town and Country Property Management.
   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

This is an wrongful death action arising under a theory of premises liability. Plaintiffs husband died as a result of injuries he sustained after tripping over a piece of concrete embedded in a dirt path. Plaintiff alleged that two of the defendants, who were under a separate maintenance contract with the owner of the property, failed to exercise the required due care in the maintenance, inspection, and repairs of the path. The trial court granted directed verdicts for both defendants after finding that neither owed a duty to Plaintiffs husband. We agree that defendant Brooks Shaw did not have a duty to maintain the path. However, we have determined that defendant Town and Country did owe a duty to Plaintiffs husband. Viewing the evidence in the light most favorable to the plaintiff, we find that there are genuine issues of material fact for the jury to decide. We therefore reverse and remand for further proceedings.

Facts and Procedural History

In 1978, Defendants Old Town of Jackson, Inc. (“Old Town”) and Brooks Shaw & Son Old Country Store, Inc. (“Brooks Shaw”) began constructing the commercial development known as Casey Jones Village in Jackson, Tennessee. Casey Jones Village consists of four acres. Old Town owns one acre, and Brooks Shaw owns the other three. Old Town’s one acre lot lies directly north of property owned by Defendants Donald G. Taylor and Brenda Taylor d/b/a Days Inn of Jackson (“Days Inn”).

Prior to 1999, there was a thirty-five foot ditch on the southern part of Old Town’s property. Then, the City of Jackson installed an eight foot culvert and partially filled the ditch. Afterwards, customers walked over a dirt path, created by foot traffic, on the ditch to approach Casey Jones Village from the Days Inn hotel. The path is located on Old Town’s property.

In 1984, J. Reginald Smith, on behalf of Old Town, and Clark Shaw, on behalf of Brooks Shaw, orally entered into a maintenance agreement. Under the agreement, each party would take care of its own buildings. Brooks Shaw also agreed to maintain the common grounds of Casey Jones Village. Mr. Smith testified that the common grounds consisted of “the parking lot, the flower beds, and the grassy areas on the edge of the buildings.” When the agreement was reached, the dirt path did not exist. After 1999, Brooks Shaw did not inspect or perform maintenance on either the ditch or the path, and Mr. Smith did not ask Brooks Shaw to do so.

In 1993, Old Town entered into a written agreement with Defendant Town and Country Property Management, Inc. (“Town and Country”). Under the contract, Town and Country agreed to maintain and manage all of Old Town’s property at Casey Jones Village. The agreement specifically authorized Town and Country to make “all ordinary repairs and replacements reasonably necessary to preserve the Premises in its present condition and for the operation efficiency of the Premises.” Because Brooks Shaw also had maintenance obligations, the agreement did not require Town and Country to maintain the parking lot. Town and Country’s primary obligation under the agreement was to maintain Old Town’s building and to collect rent from tenants. Mr. Smith did not specifically discuss the maintenance of the ditch with Town and Country.

Frank Piaña, Sr., his wife, Mattie, and their grandson were guests at Days Inn in July 2002. On July 13, 2002, Mr. Piaña wanted to take his grandson to play miniature golf at Casey Jones Village. They left the hotel and began crossing the dirt path between the hotel and the Village. While crossing the path, Mr. Piaña tripped over a small piece of concrete that was covered by grass. He suffered severe injuries and ultimately died from those injuries on April 25, 2003.

On July 3, 2003, Mattie Piaña, individually and as Mr. Piana’s personal representative, filed a Complaint in the Madison Country Circuit Court. The Complaint alleged negligence on the part of several Defendants: Old Town, Brooks Shaw, the City of Jackson, Days Inn, and Town and Country. With respect to Brooks Shaw and Town and Country, Ms. Piaña alleged that they failed to exercise the required due care in the maintenance, inspection, and repair of the dirt path and/or to properly warn Mr. Piaña of the dangers existing on that path. The City of Jackson and several other defendants were granted summary judgment and are not parties to this appeal. Likewise, Ms. Piaña reached a settlement with Old Town prior to trial.

At trial, three defendants remained: Days Inn, Brooks Shaw, and Town and Country. At the close of Plaintiffs proof, all three defendants moved for directed verdicts. The trial court took the motions under advisement, and Town and Country presented its proof. When Town and Country concluded, the trial court granted directed verdicts for both Town and Country and Brooks Shaw. The trial court found that Brooks Shaw did not owe a duty to the Plaintiff because it neither owned nor maintained the premises where Mr. Piaña fell. Similarly, the trial court found that Town and Country did not owe a duty to Mr. Piaña. The trial court stated that any duty owed by Town and Country must stem from the terms of its maintenance agreement with Old Town. After examining those terms, the trial court concluded that Town and Country was not obligated to inspect or repair the dirt path on Old Town’s property.

As the sole remaining Defendant, Days Inn presented its proof, and the case was submitted to the jury. The jury only considered the fault of Mr. Piaña, Old Town, the City of Jackson, and Days Inn. The jury attributed 70% of the fault to Old Town and 30% to Mr. Piaña. The jury also found $3,000,000 in damages. The plaintiff, however, had already settled with Old Town, and therefore, could not recover additional damages based upon the jury verdict.

Ms. Piaña now appeals the trial court’s decision to grant directed verdicts for Brooks Shaw and Town and Country.

Standard of Review

A trial court’s decision to grant a motion for directed verdict involves a question of law. Underwood v. HCA Health Servs. of Tennessee, Inc., 892 S.W.2d 423, 425 (Tenn.Ct.App.1994). On appeal, we apply the same standard used by the trial court when ruling on the motion initially. United Brake Sys., Inc. v. Am. Envtl. Prot., Inc., 963 S.W.2d 749, 754 (Tenn.Ct.App. 1997). Accordingly, we do not weigh the evidence or evaluate the credibility of witnesses. Id. (citing Underwood, 892 S.W.2d at 425). Rather, we consider all of the evidence, taking the strongest legitimate view of it in the non-moving party’s favor. Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.1994). The court should grant the motion, “only if, after assessing the evidence according to the foregoing standards, it determines that reasonable minds could not differ as to the conclusions to be drawn from the evidence.” Id.

Law and Analysis

A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn.2005); Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998).

The focus in the present case is on the first element of negligence, the duty of care. The existence of a duty is a question of law. Hale, 166 S.W.3d at 716; Coin, 966 S.W.2d at 39. Legal duty has been defined as the legal obligation owed by a defendant to a plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm. West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 551 (Tenn.2005). A “risk is unreasonable and gives rise to a duty to act with due care if the forseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995). When deciding whether a duty is owed in a specific case, “courts apply a balancing approach, based upon principles of fairness, to identify whether the risk to the plaintiff was unreasonable.” Burroughs v. Magee, 118 S.W.3d 323, 328-29 (Tenn.2003). When balancing the relevant factors, the “foreseeability prong is paramount because ‘foreseeability is the test of negligence.’ ” Hale, 166 S.W.3d at 716-17 (quoting Biscan v. Brown, 160 S.W.3d 462, 480 (Tenn.2005)).

A. Brooks Shaw

The trial court found that Brooks Shaw did not owe a duty to Mr. Piaña because the common maintenance agreement between Brooks Shaw and Old Town did not require Brooks Shaw to maintain the ditch area or the path. Brooks Shaw did not own the property on which Mr. Piaña fell. Accordingly, Brooks Shaw could not owe a duty to Mr. Piana as the owner of the premises. See Hale, 166 S.W.3d at 717-18; Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 562 (Tenn.Ct.App.1985). Therefore, the trial court correctly concluded that any duty Brooks Shaw might owe to Mr. Piaña must stem from its common maintenance agreement with Old Town.

The oral agreement between Brooks Shaw and Old Town was reached in 1984. The agreement required Brooks Shaw to maintain its building and the “common grounds.” The path along the ditch, however, did not exist in 1984; it was created by pedestrians after the ditch was filled in by the City of Jackson in 1989. In 1984, neither Brooks Shaw nor Old Town could have possibly contemplated the maintenance of a path that did not yet exist.

Ms. Piaña insists that Brooks Shaw undertook a duty to maintain the path because Brooks Shaw occasionally performed maintenance on areas owned by Old Town. When it did so, Brooks Shaw could seek reimbursement from Town and Country for twenty five percent of the cost of the repairs. Accordingly, Brooks Shaw could have inspected and repaired the path. Because of this possibility, Ms. Piaña argues that Brooks Shaw undertook a duty to do so.

This Court, however, rejected a similar argument in Thompson v. Ruby Tuesday, Inc., No. M2004-01869-COA-R3-CV, 2006 WL 468724 (Tenn.Ct.App. Feb. 27, 2006). In Thompson, the defendant was bound to a lease agreement under which it had the right to repair a common area owned by its lessor. Id., at *6. This Court found that a contractual right to repair is not synonymous with a legal duty. Id. Here, Brooks Shaw also had the right to enter Old Town’s property and maintain the dirt path. This right, however, did not place a duty upon Brooks Shaw to protect guests on Old Town’s property. Instead, we find that Old Town retained this duty as the owner of the premises.

Next, Ms. Piaña contends that Brooks Shaw was a “possessor” of the property and thus liable to the same extent as the owner. To support this contention, Ms. Piaña relies on this Court’s decision in Smith v. Inman Realty Co., 846 S.W.2d 819 (Tenn.Ct.App.1992). In Smith, we held that a realtor, who showed a house under a listing agreement with the owner, had the same duty of care to an invitee as would the owner. Id. at 823. To reach this conclusion, the Court found that the realtor was a “possessor” of the property as defined by the Restatement (Second) of Torts § 328(E)(1965). Section 328(E) provides:

A possessor of land is
(a) a person who is in occupation of the land with intent to control it or
(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

Ms. Piaña, however, did not present evidence showing that Brooks Shaw is a “possessor” of the relevant property under this definition. The realtor, in Smith, had the right to enter the property and actually took an invitee onto the property. Smith, 846 S.W.2d at 823. Brooks Shaw, on the other hand, did not have any relationship with Mr. Piaña. Furthermore, the maintenance agreement between Brooks Shaw and Old Town did not give Brooks Shaw the exclusive right to maintain any property other than its own building and the parking lot. Accordingly, Brooks Shaw is not a “possessor” under Section 328(E), and Smith is inapplicable.

Having reviewed the facts in the light most favorable to Ms. Piaña, we find that the trial court did not err when granting a directed verdict in favor of Brooks Shaw. Brooks Shaw did not own the property where the injury occurred or where the alleged defective condition existed. Nor did Brooks Shaw undertake a duty, under its maintenance agreement with Old Town, to inspect or repair the dirt path. Therefore, the trial court properly granted Brooks Shaw’s motion for directed verdict.

B. Town and Country

The trial court found that Town and Country did not owe a duty to Mr. Piaña. To reach this conclusion, the trial court considered the Management Agreement between Old Town and Town and Country. The agreement described the property to be managed as “40 Casey Jones Village, Old Town,” which is simply the address for Old Town. Town and Country’s authority, with respect to inspections and repairs, comes from section 6(b) of the agreement:

Agent is authorized to make or cause to be made, through contracted services or otherwise, all ordinary repairs and replacements reasonably necessary to preserve the Premises in its present condition and for the operation efficiency of the Premises; and all alterations required to comply with lease requirements, governmental materials, supplies and other items necessary for the management, maintenance or operation of the Premises.

The trial court analyzed this paragraph and concluded that it “does not contemplate inspecting the dirt path to see if there is a one-and-a-half inch piece of concrete in it covered by grass.” Accordingly, the trial court granted a directed verdict in favor of Town and Country.

Liability in cases like this one follows the right to control the premises. Because Old Town is the sole owner of the property, the trial court correctly found that the terms of the Management Agreement define Town and Country’s right to control the property. The trial court then implicitly found that Town and Country had the right to control the dirt path. However, Town and Country did not owe a duty to Mr. Piaña because the danger and potential harm was not foreseeable. On appeal, Town and Country first argues that it did not owe a duty to Mr. Piaña because it was not required to perform any maintenance on the ditch.

Accordingly, our first task is to determine the extent of Town and Country’s obligations under the Management Agreement. Tennessee courts have examined similar written agreements to determine whether a party has a duty to inspect or maintain a piece of property. (Thompson, 2006 WL 468724, at *5); Denton v. Hahn, No. M2008-00342-COA-R3-CV, 2004 WL 2083711, at *8 (Tenn.Ct.App. Sept. 16, 2004). The interpretation of a written agreement-here, the Management Agreement-is a matter of law. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999). When interpreting the written agreement, our primary task is to ascertain the intention of the parties. Jaffe v. Bolton, 817 S.W.2d 19, 25 (Tenn.Ct.App.1991). We must consider the words of the instrument in the context of the instrument as a whole and give those words their usual, natural, and ordinary meaning. Ballard v. North Am. Life & Cas. Co., 667 S.W.2d 79, 82 (Tenn.Ct.App.1983); Barber v. Westmoreland,, 601 S.W.2d 712, 714 (Tenn.Ct.App.1980).

The premises described in the Management Agreement is Old Town’s address at Casey Jones Village. The description itself does not limit Town and Country’s obligations to Old Town’s building. Town and Country argues that the Agreement excluded the ditch and path because Mr. Smith, the owner of Old Town, did not specifically request Town and Country to maintain this area. Furthermore, Town and Country did not inspect, nor was it requested to inspect, the ditch or the path when performing its annual inspections. Instead, Town and Country insists that its maintenance obligations were limited to the structural integrity of Old Town’s buildings on the property.

The first question then is whether the description of the premises, “40 Casey Jones Village, Old Town,” in the Management Agreement encompasses the dirt path. At trial, Mr. Smith offered contradictory statements about his understanding of the contract. At first, Mr. Smith testified that the Agreement defines the premises as the “full one acre of Old Town’s property.” On cross-examination, however, Mr. Smith testified that he never expected Town and Country to perform maintenance on the ditch or dirt path. Patricia Fox, the property manager for Town and Country, also testified that the terms of the agreement did not exclude any part of Old Town’s property at the Casey Jones Village. Like Mr. Smith, Ms. Fox testified that Town and Country’s primary obligation was to maintain the buildings on Old Town’s property. Ms. Fox did not believe that Town and Country was required under the Management Agreement to maintain the dirt path behind the buildings. Finally, both Mr. Smith and Ms. Fox testified that they did not know that the dirt path was located on Old Town’s property.

After examining the entire record, we conclude that the language of the Management Agreement required Town and Country to maintain the entire premises, including the dirt path on Old Town’s property. Both parties to the Agreement testified that the premises described as “40 Casey Jones Village, Old Town” did not exclude the dirt path. Because the parties admit that the description is unambiguous, we must disregard their attempts at trial to limit the agreement’s scope. Town and Country cannot avoid a clear contractual duty by simply claiming ignorance of the obligation. Were we to hold otherwise, other property managers could avoid liability to invitees by ignoring the unambiguous terms of their maintenance contracts. Accordingly, we agree with the trial court’s implicit finding that Town and Country had an obligation under the Management Agreement to maintain all of Old Town’s property at Casey Jones Village, including the path.

Next, we must determine the extent of Town and Country’s authority under the Management Agreement. In Lawrence v. HCA Health Servs. of Tennessee, Inc., No. M2007-01128-COA-R3-CV, 2008 WL 8451799 (Tenn.Ct.App. Aug. 12, 2008), we found that a property manager, acting under a similar contractual agreement, became the “operator” of the property that it managed. Lawrence, 2008 WL 3451799, at *5. Like the manager in Lwwrence, Town and Country was authorized, in addition to its maintenance obligations, to find tenants, collect rent, and hire staff. Therefore, we conclude that Town and Country was the operator of Old Town’s property at Casey Jones Village.

Like an owner, the operator of a place of business has a duty “to exercise reasonable care with regard to social guests or business invitees on the premises.” Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.1998). The operator’s duty “includes maintaining the premises in a reasonably safe condition either by removing or repairing potentially dangerous conditions or by helping customers and guests avoid injury by warning them of the existence of dangerous conditions that cannot, as a practical matter, be removed or repaired.” Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 864 (Tenn.Ct.App.2001). The operator of a premises, however, does not have a duty to “remove or warn against ‘conditions from which no unreasonable risk was to be anticipated, or from those which the occupier neither knew about nor could have discovered with reasonable care.’ ” Rice v. Sabir, 979 S.W.2d 305, 309 (Tenn.1998) (quoting W. Page Keaton, Prosser and Keaton on Torts, § 61 at 426 (5th ed.1984)). In this regard, “the mere existence of a defect or danger is generally insufficient to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered it.” Id. (citation omitted).

The trial court apparently found that the piece of concrete on the path was not a condition that presented an unreasonable risk to guests. In Nee v. Big Creek Partners, 106 S.W.3d 650 (Tenn.Ct.App.2002), we described a plaintiffs evidentiary burden on this issue:

[F]or an owner or occupier to be found negligent, there must be some evidence that there was a dangerous or defective condition on the premises. A jury cannot conclude that an owner or occupier failed to exercise reasonable care to prevent injury to persons on their property if there is no evidence of a dangerous or defective condition. If no dangerous or defective condition exists, an owner or occupier cannot be held liable for failing to take action in order to remedy the supposed condition.

Id. at 653-54. Like the present case, the Court in Nee considered the sufficiency of the plaintiffs evidence after the trial court granted the defendant/owner’s motion for directed verdict. Id. at 651. In Nee, the plaintiff, who tripped while going down stairs on the defendant’s property, simply described the accident at trial and introduced photographs of the stairs. Id. at 654. The photographs were an accurate representation of the stairs, but standing alone, did not show that there was anything wrong with the stairs. Id. Accordingly, we affirmed the verdict because “[a] finding that the steps were defective or dangerous based on the photographs would require the jury to engage in speculation, conjecture, and guesswork.” Id.

The evidence presented by Ms. Piaña is similar to the plaintiffs evidence in Nee. Ms. Piaña testified about the condition of the path and introduced photographs showing the piece of concrete. Considering this evidence in the light most favorable to Ms. Piaña, we find that there was sufficient evidence for a jury to decide if the condition was dangerous or defective. Unlike the plaintiffs photographs in Nee, Ms. Piaña showed that the piece of concrete itself could be a dangerous condition. Accordingly, a reasonable person could find that the condition was dangerous without engaging in speculation or guesswork. Because reasonable persons could draw conflicting conclusions from this evidence, the issue should have been submitted to the jury rather than being settled by directed verdict.

Finally, we must address whether Ms. Piaña presented sufficient evidence showing that Town and Country had notice of the condition. If the plaintiff alleges that an owner or operator of the premises allowed a dangerous or defective condition to exist on the premises, the plaintiff must prove, in addition to the elements of negligence, that: “1) the condition was caused or created by the owner, operator, or his agent, or 2) if the condition was created by someone other than the owner, operator, or his agent, that the owner or operator had actual or constructive notice that the condition existed prior to the accident.” Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn.2004). Ms. Piaña has not alleged that Town and Country created the condition. Likewise, she has not alleged that Town and Country had actual notice that the condition existed prior to the accident. Therefore, she was required to present evidence showing that Town and Country had constructive notice of the condition.

A plaintiff may prove constructive notice by showing that “the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition.” Blair, 130 S.W.3d at 764 (citing Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn.1986)). Alternatively, the plaintiff may prove constructive notice by showing “a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence.” Blair, 130 S.W.3d at 765-66. If notice is proven, the owner takes on a duty “to take reasonable steps to remedy this commonly occurring dangerous condition.” Id. at 766. Ms. Piaña only presented evidence that the condition had existed for such a length of time that Town and Country should have been aware of it.

Although the issue of duty is a question of law for the court to decide, “it is generally for the jury to say whether the condition causing the injury ... had existed long enough that a reasonable man exercising reasonable care would have discovered it.” Allison v. Blount Nat. Bank, 54 Tenn.App. 359, 390 S.W.2d 716, 719 (1965). Before the question can go to the jury, however, the plaintiff must present “some material competent evidence from which it can be logically inferred [that] the proprietor, by the exercise of ordinary care, would have or should have discovered the dangerous condition.” Paradiso v. Kroger, 499 S.W.2d 78, 80 (Tenn.Ct.App.1973); see also Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273 (Tenn.Ct.App.1987) (‘When there is a complete absence of proof as to when and how the dangerous condition came about, it would be improper to permit the jury to speculate on these vital elements.”).

At trial, Ms. Piaña testified that she had seen the piece of concrete on the path several times prior to the accident. She did not specify any precise dates, but she stated that the piece of concrete had been on the path for at least a few years. During her previous visits, the concrete was clearly visible, but at the time of the accident, it had been covered by grass. Reviewing this evidence in the light most favorable to the plaintiff, we find that the question of notice should have been submitted to the jury. Ms. Piaña presented uncontradicted testimony that the defect had existed for several years prior to the accident. While her testimony lacked specificity, it is for the jury to evaluate the quality and reliability of her statements. By preempting the jury’s review of this question, the trial court erred. When considering a motion for directed verdict, the trial court is not permitted to weigh, let alone disregard, material evidence presented by the non-moving party.

For these reasons, we remand this matter to the trial court. We have determined, as a matter of law, that Town and Country owed a duty to Mr. Piaña. We have not determined that the concrete constituted a dangerous condition or that Town and Country had notice of the condition. We have only determined that Ms. Piaña presented sufficient evidence for a jury to consider these questions.

Conclusion

Based upon the foregoing reasons, we affirm the trial court’s grant of directed verdict in favor of Brooks Shaw. However, we reverse the trial court’s grant of directed verdict in favor of Town and Country. This case is hereby remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed equally to Ms. Piaña and Town and Country, for which execution may issue if necessary.

      . In addition to owning Old Town, Mr. Smith has a fifty percent ownership interest in Town and Country.

      . Because Days Inn had not yet presented its proof, the trial court should have waited, pursuant to Tenn. R. Civ. P. 50.01, to rule on the motions for directed verdict. None of the parties, however, raised an objection at trial or raises the issue on appeal. We simply note the procedural misstep but find any error waived. See Yeubanks v. Methodist Healthcare-Memphis Hosps., No. W2001-02051-COA-R3-CV, 2003 WL 21392411, at *7-8 (Tenn.Ct.App. June 10, 2003).