author: HENRY, Chief Justice.

text:
    CITY OF KINGSPORT et al., Appellants, v. STATE of Tennessee ex rel. the CROWN ENTERPRISES, INC., et al., Appellees.
    Supreme Court of Tennessee.
    Feb. 21, 1978.

      Ward Huddleston, Jr., W. E. Weber, Jr., Kingsport, for appellants.
    Ernest F. Smith, Edwin O. Norris, Steven C. Rose, Hunter, Smith, Davis, Norris, Treadway & Hadden, Kingsport, for appel-lees.
   OPINION

HENRY, Chief Justice.

This is a suit in the nature of a quo warranto proceeding instituted pursuant to Sec. 6-310, T.C.A., to contest the validity of an annexation ordinance of the City of Kingsport. The trial judge invalidated the ordinance. We reverse.

I.

The Annexed Territory

The annexation ordinance was duly and regularly passed by the governing body of the City of Kingsport, and all statutory procedural requirements have been met.

The ordinance provides for the annexation of 806 acres situated generally astride U. S. Highway 11W (Stone Drive) and lying generally west and southwest of John B. Demis By-pass. These are two main arterial highways in Kingsport.

Lying south of Stone Drive are a number of retail and wholesale commercial establishments. Behind these establishments, and extending generally along the southern border of the annexed area, runs Reedy Creek. The record reveals that the flood plain of this stream, containing some 73 acres, is of significant importance to the City as a whole, and particularly to the business establishments located on the south side of Stone Drive.

The situs of a substantial portion of the annexed property is north of Stone Drive. Included within this is a tract containing approximately 309 acres which is the site of a planned extension of an exclusive residential subdivision.

Also included within the area north of Stone Drive, but not contiguous thereto, is a tract of 63 acres purchased by the Sullivan County Board of Education upon which it is planned to construct a new high school.

Abutting upon Stone Drive to the north is an 85 acre tract owned by Crown Enterprises, a diversified corporation consisting of about ten divisions.

Its principal subsidiary is Mason and Dixon Lines (M&D), one of the nation’s largest trucking companies. This 85 acre tract, leased by Crown to M&D, serves as M&D’s home office and as the nerve center of its operations, which are nationwide in dimension. In addition to its main office building, it also operates on this site a building-supply building, a terminal building and a maintenance-transportation building.

This 85 acre tract is wholly within the 806 acre annexed territory and is surrounded by the remaining 721 acres.

A major issue in the court below was whether M&D’s Kingsport operation was “industrial” within the meaning and scope of Sec. 6-310, T.C.A. For reasons pointed out hereinafter we think its classification is of no critical significance. However, to clarify this issue, we hold that M&D’s property is industrial in nature. The City of Kingsport so classified it for zoning purposes, electing not to treat it as commercial. We see no essential difference between zoning and annexation classifications. Indeed, a principal purpose of annexation is to govern land use by the application of sound zoning practices.

Other property is involved, but the foregoing recitations are sufficient to present the problem. Additionally it should be noted that the annexed area contains no residential units at this time.

M&D does not challenge the overall annexation plan; but it vigorously objects to the inclusion of the 85 acre tract, which consists of approximately 10.6% of the total area. Its principal insistence is that it is an “industrial plant development” within the meaning of Sec. 6-810, T.C.A.; that the sole purpose of the annexation is to increase municipal revenue; and that M&D does not need any municipal services.

In this connection it contends that it is self-sufficient from a standpoint of the usual city services and that the total annexation will result in additional revenue of approximately $85,210.00, 56% of which would be paid by M&D and Crown.

There is no disputed material fact.

II.

The Burden of Proof

A substantial part of the record in this case is devoted to proof designed to establish that M&D’s activity is industrial in character and, therefore, Sec. 6-310, T.C.A. comes into play to place the burden of proof squarely on the City.

As a predicate for further discussion, we here quote the pertinent part of Sec. 6-310, T.C.A.:

Should the territory hereafter sought to be annexed be the site of substantial industrial plant development, a fact to be ascertained by the court, the municipality shall have the burden of proving that the annexation of the site of the industrial plant development is not unreasonable in consideration of the factors above mentioned, including the necessity for, or use of municipal services by the industrial plant or plants, and the present ability and intent of the municipality to benefit the said industrial plant development by rendering municipal services thereto when and as needed. The policy and purpose of this provision is to prevent annexation of industrial plants for the sole purpose of increasing municipal revenue, without the ability and intent to benefit the area annexed by rendering municipal services, when and as needed, and when such services are not used or required by the industrial plants.

We think that much of this controversy could have been eliminated had due regard been given to the history of Sec. 6-310, T.C.A.

Prior to the enactment of Chapter 113, Public Acts of 1955 (carried into the Code as Sec. 6-308, et seq.), the sole and exclusive method of extending the boundaries of a municipal corporation was by legislative action. The 1955 Act delegated the legislative authority of annexation to the municipalities of the state. That authority could be exercised by the municipality by ordinance, passed either upon the initiative of its governing body, or pursuant to a petition signed by a majority of residents and property owners in the affected area. Annexation by referendum was also provided for.

In the initial act aggrieved property owners were given the right to contest the validity of the annexation on the ground that “it reasonably may not be deemed necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole and so constitutes an exercise of power not conferred by law.” See Sec. 6-310.

This provision produced a series of cases articulating the “fairly debatable” standard.

The first case to construe the provision was Witt v. McCanless, 200 Tenn. 360, 292 S.W.2d 392 (1956). There the Court correctly noted that the power of annexation is legislative in character, the Court’s only duty being to determine the reasonableness of the annexation ordinance.

Thereafter, there came before the Court the leading case construing the annexation-by-ordinance statutes, Morton v. Johnson City, 206 Tenn. 411, 333 S.W.2d 924 (1960). There the proof was conflicting, and perhaps the reasonableness of the annexation might be classified as marginal. In sustaining the annexation, the Court again recognized that annexation was legislative or political in character and pointed out that the courts should not interfere in such matters. Specifically, the Court said:

[T]he correct legal principle to apply is . if it is a fairly debatable question as to whether or not the ordinance is reasonable or unreasonable the courts certainly are not going to take any hand in it one way or the other.

206 Tenn. at 426, 333 S.W.2d at 930.

It is evident that the “fairly debatable” standard would result in upholding all annexations except those characterized by blatant bad faith.

In State v. City of Columbia, 208 Tenn. 59, 343 S.W.2d 888 (1961), the Court followed Morton, supra, equating the act of the city governing body with the act of the legislature and holding that “an annexation, so long as it complies with the statute, has the same force and effect and is subject to the same attacks, only as annexation would be if done by the Legislature.” Id. at 61-62, 343 S.W.2d at 889. The Court further noted the presumption in favor of the ordinance and that those who contest it have the burden of proving it to be unreasonable.

Next in chronological order, we note Chapter 220, Public Acts of 1961, sometimes known as the industrial amendment. This act (see paragraph 5, Sec. 6-310, T.C.A.) governs the annexation of industrial property and provides, in relevant part, that “the municipality shall have the burden of proving that the annexation ... is not unreasonable.”

This Court reiterated the “fairly debatable” standard in State v. City of Jackson, 218 Tenn. 322, 403 S.W.2d 304 (1966), and again in State v. Mayor and Aldermen of Morristown, 222 Tenn. 21, 431 S.W.2d 827 (1968). In the latter case the Court responded to the argument that all annexations are fairly debatable and, therefore, this standard “destroys judicial review” thusly:

The rule does not destroy judicial review, but limits its scope to the court’s determining whether the proposed annexation is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of delegated legislative power. It is stated in 37 Am.Jur., Municipal Corporations, Sec. 28, that annexation is exclusively a legislative power and great latitude must necessarily be accorded the legislative discretion. The fairly debatable rule does no more than insure this latitude of legislative discretion. (Emphasis supplied).

222 Tenn. at 27, 431 S.W.2d at 829.

Perhaps the strongest statement on the limitation on court review of annexation will be found in State v. City of Memphis, 224 Tenn. 514, 457 S.W.2d 532 (1970):

[T]he Legislature has plenary power to alter municipal boundaries and absent constitutional restraint, such is not open for review by the courts. The Legislature in enacting Chapter 113, Public Acts of 1955, delegated this power to the municipalities with certain restrictions contained in the statute. (Citations omitted). The Legislature then could have delegated to the municipalities the authority to annex with no right of judicial review absent constitutional restraint. Appellants by T.C.A. sec. 6-310 were given a right, not a remedy. (Citation omitted). (Emphasis supplied)

224 Tenn. at 519, 457 S.W.2d at 534.

This was the condition of our law when the legislature adopted Chapter 753, Public Acts of 1974, which added to the first paragraph of Sec. 6-310 the following:

The municipality shall have the burden of proving that an annexation ordinance is reasonable for the overall well-being of the communities involved. (Emphasis supplied).

This legislative enactment destroyed all presumptions of validity and demolished the “fairly debatable” rule. As we recently held in Pirtle v. City of Jackson, Tenn., 560 S.W.2d 400 (Opinion filed Dec. 19, 1977), a Tennessee municipality “has the burden of proving the reasonableness of its annexation ordinances.”

We note that the “fairly debatable” standard was applied in State ex rel. Hudson v. City of Chattanooga, 512 S.W.2d 555 (Tenn.1974), and again in State ex rel. Hicks v. City of Chattanooga, 513 S.W.2d 780 (Tenn.1974). The decision in each of these cases was dated July 29, 1974. Chapter 753, Public Acts of 1974 became effective April 5, 1974, approximately 115 days prior thereto. It is evident that these cases were disposed of under the law as it existed prior to the enactment of the 1974 statute.

The demise of the “fairly debatable” rule is not fairly debatable.

As we stated earlier, we do not consider the industrial classification to be of critical significance. Under the 1974 amendment the burden is on the City to prove that “an annexation ordinance is reasonable”', under the industrial amendment the burden is on the City to prove that the ordinance “is not unreasonable.” The difference is purely a matter of semantics.

III.

The Industrial Amendment

In order to trigger the statute, the “territory” to be annexed must “be the site of substantial industrial plant development.” It is not enough that it “include” or “involve” or “embrace” an industrial development; it must be the development. This statute has no application in any annexation case wherein an industrial development is included within a larger area or territory annexed in good faith, and in accordance with acceptable principles governing annexation.

We hold in this case that while M&D is an industrial development, it is not the “territory sought to be annexed,” but only a relatively small portion thereof.

This holding precludes the application of the industrial amendment; however, the burden is on the municipality to show that the proposed annexation is “not unreasonable in consideration of the health, safety and welfare of . the citizens and property owners of the municipality.” (See par. 3, sec. 6-310).

With or without the fifth paragraph of Sec. 6-310, factors to be taken into consideration in testing the reasonableness of any annexation ordinance would include:

a. the necessity for, or use of, municipal services;
b. the present ability and intent of the municipality to render municipal services when and as needed;
c. whether the annexation is for the sole purpose of increasing municipal revenue without the ability and intent to benefit the annexed area by rendering municipal services.

We test this annexation against these criteria.

IV.

The Reasonableness of the Annexation

As we noted at the outset, the relevant facts essentially are not in dispute. It is the conclusion to be drawn from those facts that has created this controversy. The record is voluminous; some of the evidence was pertinent.

The trial judge found facts as follows:

a. that there are no residential dwellings on the annexed property. We agree.
b. that Preston Farm Associates intends to develop its 309 acres as a residential subdivision. We agree.
c. that Sullivan County owns a 63 acre tract where a new high school is to be constructed. We agree.
d. that Crown Enterprises and Mason & Dixon are substantial corporate entities, employing large numbers of persons in the Kingsport area and paying substantial taxes. We agree.
e. that M&D has an adequate sewage treatment plant and its connection with the city sewer line is unnecessary. We agree.
f. that the annexation study report shows that the 806 acre territory is in need of zoning and other municipal service in order to coordinate an orderly development of the entire area. We agree that the report so shows and we accept this to be a fact.
g. that the City of Kingsport has adequate service in the areas of police protection, fire protection, education, planning, traffic engineering and refuse collection, all of which could be extended to the annexed area. We agree.
h. that the city plans to expend approximately $321,000.00 to extend city sewer and water lines into the annexed area. We agree.
i. that the total tax revenue accruing to the city from the annexed property would be $85,281.00, of which appel-lees would pay approximately fifty-six percent. We agree.
j. that “the site in question constitutes a site of substantial industrial development.” We agree that M&D is a site of substantial industrial development.

After finding the site to be industrial, the trial judge’s memorandum reads as follows:

Having so found, it further appears that the statute does not provide complete immunity from the reach of annexation ordinances but only in situations where it appears that industrial plants are being annexed for revenue purposes and with no significant benefit to the industry. As to whether or not the annexation is for revenue purposes, a numbers (sic) of factors must be considered in addition to the industry’s contribution in tax payments.
After examining all of the evidence in this very lengthly (sic) record and after reviewing the considerations and requirements of the annexation statutes, the court finds that the City has failed to carry the burden of proof as defined under T.C.A. 6-310, paragraph 5.
In so holding and finding, this conclusion does not support any finding of bad faith or wrongful intent upon the members of the city council or other city officials but does support the finding that the practical result and effect of the ordinance is to violate the express purpose of the statute.

It is evident that the trial judge based his judgment upon the following conclusions:

1. that the site of M&D’s operations is industrial;
2. that M&D provided virtually all of its own services;
3. that the annexation of the M&D property was solely for the purposes of obtaining additional tax revenue with no significant benefit to the industry.

The trial judge does not specifically point out wherein the City failed to carry the burden of proof or precisely why the result of the ordinance was to violate the express purpose of the statute.

The self-evident purpose of the industrial amendment is to prevent the annexation of a substantial industrial plant development without consideration being given to four areas; viz.:

a. whether the annexation is necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole. See Sec. 6-310, T.C.A., first paragraph;
b. the necessity or use of municipal services;
c. the present ability and intent of the municipality to render the service, when and as needed;
d. the annexation must not be for the sole purpose of increasing municipal revenue with the corresponding ability or intent to render municipal services.

This annexation passes muster under these criteria, which are applicable to all annexations.

The basic fallacy in the trial judge’s conclusion is that he treated the controversy as if the Crown-M&D property were the only territory being annexed as opposed to being but a small portion of a substantially larger territory being annexed in good faith.

We find from the record that this annexation is necessary for the welfare of the property owners in the affected territory as well as the municipality as a whole.

The whole theory of annexation is that it is a device by which a municipal corporation may plan for its orderly growth and development. Heavily involved in this is control of fringe area developments and zoning measures to the end that areas of unsafe, unsanitary and substandard housing may not “ring” the City to the detriment of the City as a whole. In a word, annexation gives a city some control over its own destiny. The preservation of property values, the prevention of the development of incipient slum areas, adequate police protection within a metropolitan area, and the extension of city services to whose who are already a part of the city as a practical proposition, are the legitimate concern of any progressive city.

We are not impressed by the argument that Crown Enterprises and Mason & Dixon do not use or need city services. All that is required is that consideration be given to the necessity for or use of city services and that they be available “when and as needed.” This latter phrase would indicate that the legislature realized that some annexed areas would not at the time need any city services.

The whole process of annexation would be frustrated if the city could only annex those properties then in need of city services. The result of this would tend to create islands of unincorporated areas within a city and the archipelagic monstrosity thus created would thwart the rendition of essential city services and would not be in the public interest.

Appellees do not contest the annexation of the remaining property. Should we uphold their contention the result would be the creation of an 85 acre island or enclave, completely surrounded by the City of Kingsport. The area thus omitted would be within, but not a part of a city. Absent the most compelling considerations, such a situation would be intolerable and an annexation that produced such a result would not meet the test of reasonableness.

We have no hesitancy in holding that any annexation having as its sole purpose the collection of additional revenues is totally void. We do not here have such a case. See State ex rel. Spoone v. Mayor and Alderman of Morristown, 222 Tenn. 21, 431 S.W.2d 827 (1968).

When consideration is given to the entire record, we are fully persuaded that the annexation ordinance under consideration represents a fair, reasonable and responsible effort of the City of Kingsport to cause its municipal boundaries to keep apace of the growth and development of the city.

To the extent of the issues involved in this suit, we declare the ordinance in question to be valid. We note that another suit challenging the same ordinance now pends in the trial court. The principles we announce here will be controlling in that suit; however, differing issues may be involved and we do not consider it appropriate to finally adjudicate the full validity of this ordinance until the parties to the pending suit shall have been heard fully.

The decision of the trial court is reversed and this action is remanded for the entry of such decree, and at such time, as may be appropriate.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . In Crown Enterprises, Inc. v. State Bd. of Equalization, 543 S.W.2d 583 (Tenn.1976), we held that the Nashville Terminal of Mason and Dixon Lines was “public utility property” within the purview of the Property Assessment and Classification Act. We reached this conclusion by classifying the property “according to use”, for purposes of ad valorem taxation. Wholly different considerations are involved in annexation suits.

      . Exemption of designated municipalities from this act, was declared to have no rational basis and to be unconstitutional in Pirtle v. City of Jackson, infra.

      . See Annot., 49 A.L.R.3d 589, 644-646 (1973). See also Town of Fond Du Lac v. City of Fond Du Lac, 22 Wis.2d 533, 126 N.W.2d 201 (1964).

      . We note that the City of Kingsport had a population, according to the 1940 census, of 14,404. The latest Tennessee Blue Book reports a 1974 population of 31,938, or a growth of 121.7% during the last quarter of a century.


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    Nellie Alberta Gupton HARRIS, Plaintiff-Appellant-Appellee, v. Jawana Sue Gupton BITTIKOFER and the unknown and unborn heirs of Jawana Sue Gupton Bittikofer, Defendants-Appellees-Appellants.
    Supreme Court of Tennessee.
    Feb. 27, 1978.

      Walter S. Clark, Jr., Nashville, for plaintiff-appellant-appellee.
    Charles Watson Cross, Nashville, for defendants-appellees-appellants.
   OPINION

FONES, Justice.

This second appeal involves the fee awarded to the guardian ad litem, Charles Watson Cross, by the trial court following our decision on the first appeal, and his attempt to collect it by an execution sale of the real property devised by testatrix, Angie H. Gupton, deceased. His wards were and are the unborn heirs of Jawana Sue Gupton Bittikofer, granddaughter of testatrix.

This case originated as a suit for construction of a provision in the will of Angie H. Gupton devising real estate. The trial court held that the will vested in plaintiff, Nellie Gupton Harris, daughter of testatrix, a life estate with remainder to testatrix’s granddaughter, Jawana Sue Gupton Bitti-kofer, or her heirs.

On the first appeal to this court, we held that plaintiff took a life estate with alternate contingent remainders, first to plaintiff’s issue, if any, in fee simple, and second, should plaintiff die without issue, survived by her husband, to Jawana Sue Gupton Bittikofer, in fee simple, but if not survived by her husband, the property would revert to the estate of testatrix, Angie H. Gupton. Harris v. Bittikofer, 541 S.W.2d 372 (Tenn.1976).

On 31 August, 1976, subsequent to release of this Court’s opinion on 9 August, 1976, the guardian ad litem filed a motion in the trial court for the award of a fee for “successfully” representing his wards in the appellate court and for an order directing an execution sale of the “sole estate assets, consisting of real estate” to satisfy his claim for fees in the trial and appellate courts. No process was issued, but the motion contains a certificate of service of the motion on Walter S. Clark, attorney for plaintiff, Nellie Gupton Harris.

An order was entered on 14 September, 1976, reciting that the motion was heard on 8 September, 1976, and decreeing as follows:

“. . . that the guardian ad litem is awarded a total fee for trial and appellate work of $1,700.00, that the fee is hereby taxed as costs to be divided one-half to the plaintiff and one-half to the defendants, that the fee shall be a lien upon the estate property, and that the property shall be sold, for which execution may issue, in order that said fee be paid.”

On October 14, 1976, a fieri facias issued commanding the sheriff of Davidson County to levy upon the goods, chattels, lands and tenements of the “Estate of Angie Hef-lin Gupton”. The sheriff returned the writ, showing levy upon the “real property described within, publishing in Nash. Record three consecutive weeks — public sale on the steps of courthouse Friday, November 19, 12 noon.”

On November 19, 1976, the trial judge signed an order wherein it was noted that “a Sheriff’s sale of the real property of the estate of Angie Gupton having been held” and ordered the court costs, sheriffs commissions and advertising expense totaling $246.45 and the guardian ad litem fee of $1,700.00 be paid, and any remaining proceeds, “to become a part of the said estate.” The real property sold for $1,975.00, so that these proceedings to compensate the guardian ad litem resulted in net proceeds to the “estate” of $28.55. The interest of the unborn heirs, represented by the guardian ad litem, had been determined by this court to be a remainder following a life estate, contingent upon first, Nellie Gupton Harris dying without issue, second, predeceasing her husband, and third their mother, Jawa-na Sue Gupton Bittikofer, predeceasing them.

Pursuant to motion of Plaintiff, relying upon Rule 60.02(3) T.R.C.P., filed January 7, 1977, the trial court held that the portion of his order of September 14, 1976, that fixed a lien upon the “estate” property and authorized an execution sale was coram non judice and void and the execution sale was set aside. The September order was further modified by taxing the entire $1,700.00 guardian ad litem fee to plaintiff, Nellie Gupton Harris, and directing that upon her payment thereof, the clerk and master refund to the purchaser the amount he had paid into Court.

In his memorandum opinion the trial judge based the invalidity of the lien and sale upon the rationale that the estate of Angie H. Gupton was not a party to the will construction suit, noting that her will was probated May 5, 1960, and final settlement of her estate occurred on August 21, 1961; further that the real property owned by testatrix at her death was not “included” in the will construction suit, nor any disposition of the realty sought.

The lien and sale were void for several reasons; the most obvious is the principle that a contingent remainder interest is not subject to execution and sale by a judgment creditor. First National Bank v. Pointer, 174 Tenn. 472, 126 S.W.2d 335 (1939); Nichols v. Guthrie, 109 Tenn. 535, 73 S.W. 107 (1903).

The trial judge correctly relied upon Rule 60.02(3) Tennessee Rules of Civil Procedure as authority to set aside the void judgment and sale.

Plaintiff questioned the propriety of assessing the guardian ad litem’s fee to plaintiff. The trial judge noted that this Court taxed the costs of the first appeal to plaintiff and concluded that to be authority for taxing the guardian ad litem fee to plaintiff. We disagree. Our adjudication on the prior appeal was limited to the court costs involved in the appeal and no consideration whatever was given to the propriety of awarding guardian ad litem fees, or which of the parties should bear the burden of said fees.

Prior to Runions et al v. Runions, 186 Tenn. 25, 207 S.W.2d 1016 (1948), the case of Patton v. Dixon, 105 Tenn. 97, 58 S.W. 299 (1900), controlled the awarding of attorney’s fees in circumstances analogous to the instant case; that is, a guardian ad litem’s fee could only be assessed against his ward and his ward’s estate or interest in a fund in Court and could not be imposed upon other parties to the litigation. See Gibson’s Suits in Chancery, 5th ed. § 1251 and cases cited.

In Runions v. Runions, supra, the Court without citing any authority whatever or referring to Patton v. Dixon, supra, awarded a guardian ad litem’s fee against the successful party rather than the ward, and declared a lien upon the land involved in the suit.

In Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174 (1956), Mr. Justice Burnett, writing for the Court, reached the conclusion that Chapter 107, Public Acts of 1917, codified as § 20-1621, authorizes guardians ad litem fees to be adjudged between the litigants as the equities of the case demand. He further opined that the Court in Run-ions had based its adjudication of the guardian ad litem’s fee on said code section although no reference to same can be found in Runions.

The purpose of the Runions case was to judicially determine the interest of Robert Runions’ widow in real estate resulting from his conveyance to her of an undivided one-half interest by a deed containing language of intent to create a tenancy by the entirety. The Court concluded that the proceedings were for her benefit and taxed the costs, including the guardian ad litem’s fee to the widow.

In Butler v. Parker, supra, the original complainant and appellant had purchased realty at a bankruptcy sale, subject to all liens, taxes, encumbrances, exemptions, claims, etc., for a nominal sum and sought to establish a clear fee simple title. Though unsuccessful in doing so, the Court concluded that the litigation was entirely for the benefit of the complainants.

The language of the will in this case reasonably requires litigation for the mutual benefit of all beneficiaries, parties to this suit. In our opinion it is improper to assess all of the costs against the life tenant. We think the first adjudication by the trial court adjudging the costs one-half against plaintiff and one-half against the defendants, some of whom will acquire a vested remainder interest, was correct. We therefore set aside the adjudication of all the costs to the plaintiff and direct that upon remand and redetermination of the fee it will be taxed one-half against plaintiff and one-half against the interests of all contingent remaindermen. A lien will be declared upon the remainder interests only, but its enforcement must await the vesting of those interests. The one-half adjudged against plaintiff may be enforced by execution only against the goods, chattels, or realty other than her life interest in this property.

On the face of the record before us, the amount of fee awarded the guardian ad litem reflects an abuse of discretion. One of the principles that must predominate when a court is called upon to adjudicate compensation for legal services rendered by solicitors and guardians ad litem is that the fee must not be out of proportion to the value of the property involved in the litigation. It is intolerable to allow the property that is the subject of litigation to be devoured by attorney’s fees. In addition, we have examined the record and briefs on the first appeal and are able to reasonably assess the legal services performed by the guardian ad litem. No evidence whatever was adduced in the case, a single pleading, one page in length, was filed in the trial court, and a fourteen (14) page brief in this Court. We are of the opinion that the fee awarded was excessive, disregarding the limiting factor of the amount of his ward’s interest.

The decree of the trial court in voiding and setting aside the sale of the realty is affirmed; the adjudication of a $1,700.00 fee imposed upon plaintiff is reversed and set aside. Upon remand the Court will award a reasonable fee for the legal services rendered in the trial court and the appellate court on the first appeal only, giving due consideration to our observations in this opinion and declare a lien in accordance with the directions hereinabove stated. In addition, prompt orders should be issued requiring the payment into court of the appropriate sums by Charles Watson Cross and the plaintiff, necessary to refund to the purchaser the $1,700.00 fee heretofore collected by Cross from the proceeds of the sale. Costs of this appeal are assessed one-half to plaintiff and one-half to Charles Watson Cross.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


text:
    AMERICAN PRECISION, INC., Appellant, v. Lloyd OTTINGER, Appellee.
    Supreme Court of Tennessee.
    March 13, 1978.

      Walter 0. Waddey, Waddey & Blankenship, Kingsport, for appellant.
    William M. Leibrock, Newport, for appel-lee.
   OPINION

FONES, Justice.

Defendant, American Precision, Incorporated, appeals from a decree awarding its employee, Lloyd Ottinger, workmen’s compensation benefits for a forty (40%) percent permanent partial disability to the body as a whole.

The only assignment of error insists that the trial judge “erred in holding the claim of the employee to be a compensable claim under the workmen’s compensation law of the State of Tennessee.”

Plaintiff, employed by appellant as a welder-fitter, sustained an injury to his low back on January 23, 1976, working on the installation of a screw jack on a portable dust collector. Plaintiff promptly reported the injury to his foreman, Len White, and the plant supervisor. He was treated by several physicians and hospitalized three (3) times between January and September, 1976. Although he worked on a few occasions during that period he did not return to regular work until September, 1976.

His claim was recognized as compen-sable by defendant. Temporary total disability benefits were paid, as well as most of his medical expenses. Suit was filed on August 17, 1976, seeking an award of permanent partial disability. Defendant’s answer, filed on September 23, 1976, raised the single issue of whether plaintiff sustained a permanent disability and, if so, the extent thereof. There was no denial that plaintiff sustained a compensable injury or that his injury arose out of and in the course of employment; nor do we find that this issue was tried by the express or implied consent of the parties, so that it might be considered as having been raised in the pleadings as provided in Rule 15.02, Tennessee Rules of Civil Procedure. The first time that the issue was articulated was after the conclusion of all of the proof. Defendant moved for a dismissal on the grounds that the injury did not arise out of and in the course of employment and the learned trial judge summarily overruled the motion without hearing from plaintiff.

However, in this Court, plaintiff does not rely upon defendant’s failure to plead that his injury was not compensable or the fact that the only issue that can be said to have been tried in the court below was whether or not plaintiff had a compensable injury, and/or the extent thereof. We will therefore consider defendant’s assignment of error on its merits.

At the trial, plaintiff testified that he and Max Collier, another welder-fitter, were installing a screw jack on a portable dust collector when he hurt his back. It appears that plaintiff was on his knees in a cramped position holding the jack in proper relationship to the dust collector while Collier tack-welded the pieces together. On cross-examination, the substance of plaintiff’s description of the accident, relied upon by defendant, was that he had “straightened up” from the installation of the jack and started toward the bathroom, walked maybe fifty (50) feet, when he coughed and first felt pain in his low back.

Doctor Huddleston, an orthopedic surgeon who was one of plaintiff’s treating physicians, testified that x-rays of plaintiff’s back showed a narrowing of the fifth lumbar disc interspace, that the condition probably predated plaintiff’s injury^ but that “a person with this kind of x-ray cannot hurt much, but then some factor can cause an aggravation of it, even though he didn’t appreciate that he had this before. It may not have just reached the point where he was aware of it and this finding does support his complaint.”

The history given Dr. Huddleston by plaintiff was that he had had no prior trouble with his back or spine until January, 1976, when “he was lifting a screw jack at work and something caught in his left low back area.” On cross-examination Dr. Hud-dleston was asked, hypothetically, if a person with a degenerative back condition bends over to pick up something or cough, “could it be the straw that broke the camel’s back in terms of producing pain where it had not existed before.” Doctor Huddle-ston answered in the affirmative. However, Dr. Huddleston was not asked the significance, if any, of the sequence of events in this case, to wit, whether the cough, closely following the work strain, or the lifting of the screw jack, was the causative favor that produced plaintiff’s injury.

The trial judge made an express finding from the bench that plaintiff injured himself under the dust collector that they were building and that he sustained a compensa-ble injury.

There is no evidence in this record that the last act performed before the onset of pain was the cause of the injury. The best that can be said for defendant’s position is that the cause of plaintiff’s injury was a disputed question of fact about which there was material evidence to support a finding that either the cough or the heavy work, or both, triggered his disability.

It is reasonable to conclude that a back injury sustained shortly after doing heavy work was caused by the work, where the injured person suffered from a degenerative disc disorder which can be aggravated by such work. Even though evidence may be susceptible to different inferences, this Court will not disturb findings of the trial judge where such findings are supported by inferences which may be reasonably drawn from the evidence. E. g., Giles County Bd. of Educ. v. Hickman, 547 S.W.2d 944 (Tenn.1977); Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn.1976).

Affirmed. Costs are adjudged against American Precision, Incorporated.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


text:
    STATE of Tennessee, Petitioner, v. John SUTTON, Jr., Respondent.
    Supreme Court of Tennessee.
    March 13, 1978.

      Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Nashville, for petitioner.
    James C. Lee, Chattanooga, for respondent.
   OPINION

FONES, Justice.

Defendant John Sutton was indicted for driving while intoxicated, and disorderly conduct. His wife, Gloria, was indicted for disorderly conduct arising from the same incident, and the two were tried jointly. The jury returned a verdict of guilty on all charges. The trial judge, on motion for new trial, directed a verdict of acquittal on the disorderly conduct charges, but let stand respondent’s conviction for driving under the influence, with the jury-imposed penalty of ten (10) days incarceration and a five hundred ($500) dollar fine. The Court of Criminal Appeals reversed the conviction on the basis of improper argument, and remanded the case for a new trial. We granted the State’s petition for writ of cer-tiorari.

The proof adduced on behalf of the State reflects the following facts:

Chattanooga policeman Steve Miller and a “ride along” student trainee, Reba Beg-ley, were on patrol about 9:40 p. m. on Friday, January 16,1976, when Miller saw a car coming toward him “at an extremely high rate of speed.” When the car passed Miller, he made a U-turn with his cruiser and gave chase, hitting speeds up to seventy-five or eighty miles per hour while simultaneously calling for help on his radio. Miller was never able to close on the car, a Cadillac, but the car was intercepted by another police cruiser driven by Officer Turner. Both Miller and Turner gave chase with sirens and flashing lights until the Cadillac finally stopped in the parking lot of Gloria Sutton Realty Company.

The occupants of the car were eventually determined to be the defendants and Danny Simmons, an employee of Mrs. Sutton. Mr. Sutton was driving. When Officer Miller asked him to display his driver’s license, Sutton “ignored” him. When Miller demanded the license a second time, Sutton again ignored the request and said something to Miller about finding his keys, which he said he had dropped. As Miller testified, “he had a key ring in his hand and he was having trouble with his keys. He was dropping them. At this — I could smell the odor of alcohol. ... It was strong.”

Miller then ordered Sutton to place his hands on top of the car, which Sutton refused to do, telling Miller he had been watching too much television. Miller then physically placed Sutton’s hands on top of the car and determined that Sutton was not armed. These activities were accompanied by what is described as belligerent behavior by Mrs. Sutton which drew a crowd of some fifteen (15) to twenty (20) persons from a nearby restaurant. Mrs. Sutton was arrested for disorderly conduct, but she resisted attempts to be placed in a police car.

Officer Miller gave John Sutton a “field test” for drunkenness, whereby Sutton was required to stand erect, tilt his head back, stretch both arms out in front of him, and touch his nose with his middle finger. He failed on both hands, or as Miller testified, “. . . he completely missed.” Miller added that “while he was standing taking the test, he was swaying, his balance was unsteady.” Miller gave no other tests because he was “afraid he’d fall down.”

Two other officers also testified as to respondent’s intoxication. Officer Turner, who had joined in the chase, testified that respondent “appeared to be intoxicated,” judging from “his behavior and the strong smell of alcohol.”

Also on the scene was Officer Tanner, who had responded to the radio alert during the high speed chase, but who did not arrive until the chase ended. At the respondent’s request, Tanner gave the respondent three (3) additional “field sobriety tests.” In the first, respondent was asked to walk a straight line, which he failed due to “wobbling.” In the second, Tanner dropped a dime on the pavement and asked defendant to pick it up. Defendant “fumbled” with the dime before picking it up. Finally, Tanner gave the nose-touch test as given by Miller, with these results:

“Well, when he tilted his head back, I had to help him because he was starting to fall backwards, losing his equilibrium, and when he finally — -when he did finally tilt back and tried to touch, he was touching like the upper forehead or check area, you know.”

Tanner also testified that he smelled alcohol on defendant.

The three (3) policemen on the scene called their supervisor, Captain Brawley, and while awaiting his arrival, they permitted the defendants to sit in their car. However, when Turner and Tanner turned to go to the restaurant to make phone calls, and Miller began filling out his report, the defendants left the car and proceeded “in a hurry” to the Sutton office building, where they stayed with the doors locked. While in the office, Mrs. Sutton made a futile attempt to obtain help from the Mayor, whom she was never able to reach.

The police had the car towed away, and took out warrants the following day, on Saturday. Prior to issuance of the warrants, John Sutton visited the home of the Police Commissioner and registered an official complaint charging the officers with police brutality. On Saturday evening, when police called the Suttons to inform them that the warrants were out and that they were on their way to the Sutton home to pick them up, the defendants both fled to a motel for the night. On the following Sunday afternoon, they called a lawye- and turned themselves in.

The defense was that John Sutton was not drunk and that the warrants, which were issued on the Saturday afternoon following the Friday night incident on which they were based, were in retaliation for the Suttons’ complaint against the officers involved.

The defense produced a number of witnesses who had been present with the Sut-tons at a cocktail party immediately before the incident, testifying that they did not see the Suttons consume much alcohol, and that the Suttons did not appear intoxicated when they left the party. Sutton stated that the sobriety tests were given at his request and that he passed them.

The defense also produced a number of photographs of the road in an attempt to show that Sutton could not have driven his car at the speeds ascribed to him.

Both the Suttons confirmed that they did not cooperate when stopped, but sought to show that their non-cooperation was reasonable because John Sutton had lost valuable keys, Mrs. Sutton was suffering from ill health which was aggravated by being forced to wait in the cold without her coat, and both were afraid of continued acts of police brutality.

In reversing the conviction, the Court of Criminal Appeals found the prosecutor’s argument on these two subjects improper: 1) a statement that an acquittal could result in civil suits against the police; 2) allusions to the wealth and social status of the defendants. Respondent urges additionally that it was prejudicial error for the prosecution to refer to the failure of the defendants to call a particular witness, and to suggest that the jury be guided by television police shows in determining the reasonableness of defendants’ conduct. All prosecution arguments assigned as prejudicial were made during the State’s rebuttal argument. The trial judge sustained objections to these arguments when made, except for the objection to the argument concerning television police shows. No cautionary instructions were requested, and none were given.

In determining whether statements made in closing argument constitute reversible error, it is necessary to determine if the statements were improper, and if so, whether the impropriety affected the verdict. Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976); see Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965).

Because argument of counsel is a valuable privilege that should not be unduly restricted, our courts give wide latitude to counsel in arguing their position in a case to the jury, and the action of a trial judge in controlling arguments of counsel will not be reversed absent an abuse of discretion. Smith v. State, 527 S.W.2d 737 (Tenn.1975).

Closing argument “must be temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent to the issues being tried.” Russell v. State, 532 S.W.2d 268, 271 (Tenn.1976). Where the criminal defendant raises an issue in his defense, he cannot complain of references to the issue by the prosecution, or argument on that issue, so long as the argument is fairly warranted by the facts and circumstances of the case. See Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48 (1964); Coke v. State, 208 Tenn. 248, 345 S.W.2d 673 (1961); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959); Dortch v. State, 517 S.W.2d 24 (Tenn.Cr.App.1974); see also United States v. Hoffa, 349 F.2d 20, 50-51 (6th Cir. 1965).

The record in this case amply demonstrates that the allegedly prejudicial and improper arguments regarding possible civil liability and the wealth and social status of defendants were made in response to issues raised by the defense.

The majority of the defense efforts during the three day trial of this case were directed to showing that the charges filed against the Suttons were made in an effort by the police to protect themselves from the Suttons’ charges of police brutality. Defense counsel even put the prosecuting attorney general on the stand and asked him about his investigation of the case in an apparent effort to show that the prosecution had motives in the case besides the punishment of the guilty. Defense counsel made several references to the fact that he was a civil lawyer, and in closing argument, stated this:

“. . . If it were an ordinary criminal prosecution, in the first place, I wouldn’t be over here. I’m a civil lawyer. I do my work across the street.
Mr. Ruth, who has helped throughout the case, and who will make the closing for the defendants — Mr. Ruth was formerly an Assistant Attorney General. He was chief prosecutor. He’s infinitely more knowledgeable in matters involving criminal law than am I. If it were an ordinary criminal case involving two misdemeanor charges, the Suttons would not have employed two lawyers to defend them against what they believe to be unjust charges arising out of unjust arrests.”

Defense counsel repeatedly referred to the trial as a “grudge match,” at one point speculating that had Officer Turner, the prosecutor listed on the indictments, wanted to drop the disorderly conduct charge, the State “wouldn’t let him, because it’s a grudge fight.”

Continuing this line of argument, defense counsel stated this:

“But after the [John Sutton’s] complaint was formally registered, as a result of his indignation to the way in which he and his wife were treated the night before, did the officers have, even up to this point, any choice but to push and push and push toward conviction?”

In commenting on the prosecution’s failure to produce photographs taken of the Suttons’ bruises, defense counsel said, “[w]hat is this, some kind of conspiracy? I submit to you that it’s some kind of coverup.” Defense counsel further characterized the testimony of the police officers who were present at the scene that they had no interest in the Suttons’ conviction as “pure unmitigated baloney.”

Although it might be argued that these statements refer only to the formal complaint made to the police department by the Suttons, and not to the possibility of civil litigation against the police, we are not forced here to draw so fine a line because respondent opened the door to comment about the possibility of a civil lawsuit in his cross-examination testimony, as follows:

“Q So the first person you wanted to get in touch with about being arrested was the Mayor and the second person was the Commissioner of Police?
A You can arrest me for anything I’m guilty of.
Q And when the warrants — then you still didn’t turn yourself in until a day after the warrants, the following day after you found out warrants had been issued by a Judge?
A No, because Sergeant Reno had told me that the Police Department was afraid of libel suits, and to me this resembled a smoke screen as a diversion.”

After the jury had heard all of the above, the prosecutor made the following remarks, which were objected to and assigned as prejudicial error, as follows:

“Let’s look at this trial. Talking about the nightmare not being over, why do you think they’ve got a civil lawyer? Use your common sense. Why not just a criminal lawyer? Why get a civil lawyer? Following up their complaints of police brutality, the civil rights act. Well, as soon as we come out of here with a not guilty and we persuade that jury that they’re stupid and not guilty, we’ll sue in civil court.
MR. RUTH: Objection.
MR. LEE: May it please the Court, I object.
MR. RUTH: He knows that that’s improper.
MR. LEE: I object. I heretofore — get General Young in here. I’ve offered a full release to the City of Chattanooga and the police force in writing. I think this is highly improper argument.
MR. BEVIL: They’ve made — they’ve brought it out from the very beginning, Your Honor, about civil and criminal lawyer, and I think it’s right to make an inference based upon what’s been happening in here about motivation.
THE COURT: I sustain the objection.

Although we agree in principle with the general proposition that civil liability resulting from an acquittal should never be argued in a criminal case because it has nothing to do with the essential question of guilt or innocence, in the context of this case, the error is harmless beyond a reasonable doubt, defense counsel having attempted to refute the direct testimony of three (3) police officers that John Sutton appeared drunk by showing a motivation for the officers to perjure themselves. The allegedly improper statement merely stated in concise form that which the jury had been told by inferences from the defense throughout the trial.

In our opinion, it was the overwhelming evidence that convicted respondent, not the contested portions of the closing argument. Three (3) policemen testified that in their opinion, respondent was intoxicated; all three (3) smelled liquor on his breath; all said his behavior was commensurate with intoxication; two (2) policemen said respondent failed a total of four (4) field sobriety tests.

This testimony was corroborated by the fact that respondent had just left a party where he admitted drinking; he drove his car in sleet and snow at night in a 45 mile per hour zone on a road with numerous curves and hills at speeds over seventy (70) miles per hour; he refused to stop when chased by police cars; he refused to cooperate when stopped; he fled from police twice, once at the scene, and the next day from his home when he learned police were coming to his home with arrest warrants.

The jury chose to sentence respondent to ten (10) days incarceration and a five hundred ($500) dollar fine, although the statute under which he was convicted permits a minimum sentence of two (2) days incarceration and a ten ($10) dollar fine. See Tennessee Code Annotated § 59-1031, § 59-1035. This sentence reflects that the verdict of the jury was based on a determination that John Sutton was guilty of drunken driving as charged, and not on a desire to insulate the police from civil liability.

Respondent’s contention that the prosecution improperly and prejudicially referred to defendants’ wealth and social status is likewise without merit. The record is replete with defense references to the defendants’ wealth and social status, their two (2) Cadillacs, their real estate businesses, and their busy schedules. Defense counsel specifically put the matter in issue by arguing that “the humiliation and notoriety that these people have been held up to is not— well, is a result of their prominence, not in spite of it.”

The prosecution made several allusions to the wealth of the defendants, only one of which was objected to. Without a contemporaneous objection, the error is waived. Ellis v. State, 544 S.W.2d 908 (Tenn.Cr.App.1976). However, we note that the statements not objected to but assigned here as error only answered the defense argument that defendants were on trial because of their prominence, the prosecution contending that defendants should answer for their crimes regardless of their economic and social status. The defense chose to put this issue in the case, and the prosecutor’s arguments in response were fairly warranted by the facts and circumstances of the case; under the authority noted above, there would be no error here, even had defendant preserved his right to complain by making contemporaneous objection.

Objection was made to one portion of the prosecution argument which referred to the wealth and social status of defendants, as follows:

“They don’t have to p.ut on the burden of proof, as I told you. But Danny Simmons, ladies and gentlemen, was there from start to finish. He was in the back of the car, he was in the car when it raced along Hixon Pike, he was in the car when it stopped, he was in the car when the police got out, he was in the building when they went in and hid — Danny Simmons. They say, ‘Well, he’s in Alabama and a state witness warrant won’t get him.’ I submit to you that if they’ve got the kind of money to hire two lawyers, a civil and a criminal lawyer, then they’ve got the kind of money to get Danny Simmons back here to testify.
MR. RUTH: If Your Honor please, I think that’s improper, and I object.
THE COURT: Sustain the objection.”

As the proof and statements of defense counsel showed that defendants were wealthy and socially prominent, the prosecution was merely arguing a permissible inference from the facts by suggesting that defendants could have produced the witness had his expected testimony been favorable. It is not error for the prosecuting attorney to argue that which is warranted by reasonable inference from the evidence adduced at trial. State v. Beasley, 536 S.W.2d 328 (Tenn.1976); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959); Briggs v. State, 3 Tenn.Cr.App. 471, 463 S.W.2d 161 (1970).

Respondent also asserts that the above-quoted argument regarding defendants’ wealth is improperly prejudicial because it refers to the failure of defendants to produce Danny Simmons as a witness.

Comment on the failure of a defendant to call a witness is generally permissible, so long as there is no implication that the State is referring to a failure of the defendant himself to testify. E. g., Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 (1967); Gamble v. State, supra; Parks v. State, 543 S.W.2d 855 (Tenn.Cr.App.1976). Defense counsel also used this same trial tactic in pointing out that the State had not interviewed or called any witnesses from the crowd which gathered after the Suttons were stopped.

Respondent also contends that the trial judge erred in allowing the prosecution to allude to police practices shown on television to show the unreasonableness of defendants’ actions. When objection was made on this point, the prosecution was responding to defense arguments that the Suttons had acted reasonably under the circumstances, and that their non-cooperation and flights therefore should not be used as indicative of their guilt. The prosecutor said, “What’s reasonable? Again going back to these police shows on TV — if you’re under arrest, if you go in your office and hide, common sensically, who would be the first person to call?”

Defense counsel objected to this remark on the basis that the jury should not be told to equate the behavior of television characters with common sense. The trial judge overruled the objection, but the prosecution did not thereafter refer to television in his argument.

In support of this argument, respondent cites only Bowling v. State, 3 Tenn.Cr.App. 176, 179, 458 S.W.2d 639, 641 (1970), in which it was stated that “[a] prosecutor should not inject extraneous issues in the case by his argument.” We agree with this statement in Bowling, and we agree with respondent that the trial judge should have sustained his objection. However, no additional comments about police television shows were made by the prosecution and in our opinion, the minor impropriety related above did not affect the verdict; thus, this error was harmless. See Harrington v. State, supra; Judge v. State, supra; Bowling v. State, supra.

The judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated. Costs are adjudged against respondent, John R. Sutton, Jr.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


author: SHRIVER, Presiding Judge.

text:
    Marie Alice CAMPBELL, Administratrix ad litem of the Estate of Edd Campbell, Plaintiff-Appellant, v. Brad MILLER, Tennessee Paving Company, Inc., and CFW Construction Company, Inc., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 26, 1977.
    Certiorari Denied by Supreme Court Oct. 17, 1977.

      Michael Murphy, Ben H. McFarlin, Jr., Murfreesboro, for plaintiff-appellant.
    Granville S. R. Bouldin, Murfreesboro, W. A. Moody, James C. Summers, Nashville, for defendants-appellees.
   SHRIVER, Presiding Judge.

OPINION

This is a suit for damages for breach of contract. The case was heard by Judge John H. Henderson, holding the Chancery Court of Rutherford County by designation, and after a hearing, plaintiff’s cause of action was dismissed, from which judgment and decree plaintiff has appealed and assigned errors.

—The Pleadings and Proceedings Below—

Plaintiff, Mary Alice Campbell, was appointed Administratrix ad Litem of the estate of her deceased husband, Edd Campbell, and in that capacity filed her original complaint reciting that she is the widow of Edd Campbell, who died intestate April 8, 1973; that defendant, Brad Miller, is a citizen and resident of Rutherford County, Tennessee, and Tennessee Paving Company and CFW Construction Company are corporations existing under the laws of Tennessee.

It is alleged that plaintiff and her deceased husband were in possession, control and custody of certain real estate located in Rutherford County, Tennessee, pursuant to a contract to purchase said real estate, which contract is dated April 5, 1966 and recorded in the Register’s Office of Rutherford County; that at the time of his death, Edd Campbell was an employee of Tennessee Paving Company and that several months prior to his death, he entered into an oral contract with Brad Miller, who was acting either on his own behalf or as an agent for Tennessee Paving Company or CFW Construction Company, or both, whereby defendant Miller and/or the principals on whose behalf he was acting, was granted the right to remove dirt and rock from an old hole or “borrow pit” located on the above mentioned property. The consideration for such grant to the defendants was their promise (1) to pay the sum of ten cents for each cubic yard of dirt and rock removed; (2) to repair any and all damages done as a result of the removal of the dirt and rock; and (3) to refill the old hole or “borrow pit” and any new holes created as a result of dirt and rock removal, said refilling and repairs to be made when the dirt and rock removal was completed.

The size and dimensions of the dirt and rock removed is set forth in the complaint and it is alleged that at the date of this complaint (October 25,1974), more than one year had passed since the dirt and rock removal was completed pursuant to the contract, and it is further stated:

“While payment for the dirt and rock removed pursuant to the contract in question has been received, and some nominal filling of the holes in question was begun prior to Mr. Campbell’s death, no effort to refill any part of the hole, holes, pit or pits in question has been made since Mr. Campbell’s death. Further, although some effort was likewise made to repair the damages done to the buildings identified above and to render the wells useable, again prior to Mr. Campbell’s death, such repairs or efforts to repair were incomplete and insufficient to restore the buildings to their former condition; only one well has been restored to useable condition by the installation of a filter; and no efforts to complete such repairs and restoration of use have been made since Mr. Campbell’s death.
Wherefore, plaintiff sues defendants for damages in the amount of $50,000.00 for breach of contract for the use and benefit of the heirs and next-of-kin of Edd Campbell, deceased, and she demands a jury to try the issues of fact to be joined.”

The answer of the defendants, inter alia, denies that the deceased, Edd Campbell, entered into an oral contract with Brad Miller, as alleged. They deny every allegation in Paragraph IV of the Complaint which sets forth the approximate number of cubic yards of dirt, rock and other material removed from the land in question, and defendants deny that they contracted to fill any holes in the property in question and deny having done any damage by blasting, or otherwise, to said property.

By way of affirmative defense, they say that the complaint fails to state a claim upon which relief can be granted and then set forth several other grounds of affirmative defense which will be discussed hereinafter in connection with the motion to dismiss and the Chancellor’s ruling thereon.

In response to a request for admissions, defendants assert that they cannot admit or deny the allegations with respect to the quantity of dirt and rock removed from the land in question but to admit that $2.00 a cubic yard is a reasonable cost for transporting and dumping dirt to fill a hole or borrow pit, provided the material could be obtained close at hand and did not require hauling for an excessive distance.

In response to interrogatories propounded by the plaintiff, it is asserted that Ira Bradford Miller was at the time in question President of Tennessee Paving Company, Inc., and Vice-President of CFW Construction Company and, in answer to the question seeking the names and addresses of any and all witnesses to any agreements made by or on behalf of the defendants with Edd Campbell respecting the hole or borrow pit subject of this litigation, the following are listed: Willard Richardson, Tennessee Paving Company, Murfreesboro, Tennessee; Ira Bradford Miller, Riverview Drive, Murfreesboro, Tennessee; Houston Jordan, c/o CFW Construction Company, Fayetteville, Tennessee. Certain other interrogatories were objected to and not answered.

—Judgment of the Court—

The final decree entered June 25th, 1976 recites:

“JUDGMENT
This cause came on to be heard before the Honorable John H. Henderson, sitting as Chancellor by designation, upon the complaint, answer, interrogatories, motion to amend, discovery deposition and, in fact, upon the entire record in the cause, whereupon the plaintiff moved the Court for leave to voluntarily dismiss the defendant Brad Miller as a party defendant in the cause, and further for leave to amend her complaint by the deletion in its entirety of Paragraph III thereof and the substitution in lieu thereof of the following:
[Here follows allegations that Edd Campbell entered into an oral contract with either Tennessee Paving Company or CFW Construction Company, or both, granting one or the other or both defendants the right to remove dirt or rock, etc., thus, eliminating Brad Miller, individually, as a defendant. Said motion being unopposed, was granted.]
“Whereupon the defendants moved the Court to dismiss the complaint for:
(1) Want of capacity, apparent on the face of the record in the plaintiff to prosecute the action in the capacity of an Administrative ad Litem.
(2) Failure to join indispensable parties to the action, to-wit: the vendors named in the contract referred to in Paragraph II of the complaint, the owners and holders of certain indebtedness upon the realty referred to in the said contract, W. M. Dye and wife, Zelma Dye, and the Trustee under the deed of trust referred to thereon, Ewing Smith.
(3) Want of capacity on the part of the decedent Edd Campbell to contract as alleged in the complaint because of lack of any sufficient legal interest in the realty in question.
(4) Want of capacity in the decedent Edd Campbell to contract as alleged in the complaint with reference to the realty described therein because of failure of his wife, who owned such interest as he had with him as a tenant by the entirety, to join in the alleged contract.
(5) The reason that the alleged contract was purportedly oral and did not, therefore, comply with the provisions of T.C.A. § 23-201 requiring contracts not to be performed within the period of one year to be in writing.
(6)The reason that the allegations of the complaint as to the alleged contractual liability of the defendants CFW Construction Company and Tennessee Paving Company are in the disjunctive and do not allege any factual basis for asserting liability against either defendant, but assert that one or the other contracted with the decedent.
And after consideration of the record, including the discovery deposition of the plaintiff, and the statement of counsel for the plaintiff made in open Court to the effect that the decedent Edd Campbell had entered into an alleged oral contract, and the admission of counsel for the plaintiff made in open Court that a copy of the contract of sale from Lindell R. Buchanan and wife, Dorothy M. Buchanan, sellers, to Edd Campbell and wife, Marie H. Campbell, purchasers was in fact a true and correct copy of the only indicia of title or source of interest in question held by the decedent Edd Campbell, or his widow, Marie H. Campbell, the Court was of the opinion that the first ground of the motion should be overruled, and that the plaintiff had standing to prosecute the suit as administratrix-ad-li-tem; that the plaintiff had failed to join indispensable parties as asserted in the second ground of the motion, and that it should be sustained as to such ground; that there was a want of capacity in the decedent Edd Campbell to contract as alleged with reference to the realty in question because of lack of sufficient ownership therein; and that the third ground of the motion to dismiss predicated on same should be sustained; that the decedent Edd Campbell lacked sufficient capacity to contract as alleged with reference to the realty described in the complaint, without the joinder of his co-tenant, the plaintiff, Marie H. Campbell, in such contract, and that the fourth ground of the motion to dismiss should therefore be sustained; that it did not appear that the alleged contract could not be performed within one year, and therefore the fifth ground of the motion should be overruled; and that the allegations of liability made against the defendants, CFW Construction Company, Inc., and Tennessee Paving Company, Inc., are in the disjunctive, allege that one or the other of said defendants entered into the contract alleged, and therefore do not charge either with liability to the plaintiff, and the sixth ground of the said motion should therefore be sustained.
It is accordingly so found, and adjudged, and it is ORDERED, ADJUDGED AND DECREED that the complaint be, and the same is hereby by the Court, dismissed by reason of the second, third, fourth and sixth grounds contained in the motion to dismiss.
To all of which action adverse to them, both the plaintiffs and the defendants then excepted and now except.
ENTER:
/s/ John H. Henderson CHANCELLOR BY DESIGNATION”

—Assignments of Error—

There are eight assignments which we will discuss in the order in which they are presented.

The discovery deposition referred to in the final decree is not included in the record and we have no bill of exceptions in this case but are confined to the technical record on appeal.

A superficial consideration would indicate that, in the absence of a bill of exceptions, we must presume that the Trial Judge had before him evidence sufficient to sustain his conclusions of fact and that, therefore, his decree must be affirmed. Norris v. Richards, 45 Tenn.App. 100, 320 S.W.2d 730 (1959).

On the other hand, a careful examination of the final decree indicates that most of the grounds on which the complaint was dismissed were those included in a motion of the defendants to dismiss and which involved questions of law. This being true, we will discuss the assignments as they have to do with the grounds asserted by the Chancellor as being those on which he acted in dismissing the complaint.

We concur in the action overruling the first ground of the motion which charges want of capacity in the plaintiff to prosecute the action as Administratrix ad Litem.

Assignment No. 1 charges error in sustaining the second ground of the motion in dismissing the complaint for failure to join allegedly indispensable parties, when said parties were not, as a matter of law, necessary or indispensable.

From a careful examination of the record, we are of opinion that the learned Chancellor was in error in sustaining the second ground of the motion and that the complaint was not fatally defective by omitting indispensable parties.

On the face of the original complaint, Edd Campbell, deceased, had a contract for the removal of dirt and rock from land which he had agreed to purchase under a contract which had been recorded in Rutherford County where the land was located, and while the holder of a mortgage on the land might, with propriety, have been included as a defendant, the failure to include the mortgagee or the trustee under the deed was not fatal to plaintiff’s action.

As is said in 59 Am.Jur.2d 361, “Parties, ” Sec. 13, only a person who will be directly affected by a decree and whose interest is not represented by any party to the litigation is an indispensable party, and for a party to be indispensable, he must have such an interest as cannot be separated from that of the parties to the litigation.

Assignment No. 1 is sustained.

Assignment No. 2 charges error in dismissing the appellant’s complaint for alleged want of capacity on the part of appellant’s decedent to enter into a binding contract with respect to real property because of insufficient ownership therein.

Again, the general rule is stated that a contract for the sale of land operates as an equitable conversion and the vendee’s interest under the contract becomes realty and the vendor’s interest becomes personalty, and in equity the vendee is regarded as the owner, subject to liability for the unpaid price, and the vendor is regarded as holding only the legal title in trust for the vendee from the time a valid contract for the purchase of land is entered into. 77 Am.Jur.2d 478-479, “Vendor and Purchaser,” Sec. 317.

In Richardson v. Snipes, 46 Tenn.App. 494, 330 S.W.2d 381 (1959), it was held:

“Purchase contract providing for part payment by transfer of purchaser’s property was a valid contract, the consideration for which was reciprocal promises of the parties thereto; and the fact that the obligation to perform, on the part of the vendor, was conditioned upon rezoning of purchaser’s property, was immaterial.”

Again, in Yates v. State, 206 Tenn. 118, 332 S.W .2d 186 (1960), it was said that a title bond is simply an executory substitute for a deed. And, as was said in Skaggs v. Kelly, Tenn.Ch.App., 42 S.W. 275, a purchaser in possession under a title bond is treated as the equitable owner and may mortgage, sell, or devise his interest.

In Bates v. Dennis, 30 Tenn.App. 94, 203 S.W.2d 928 (1947), it was held:

“If there was a valid executory contract between vendor and purchaser, then in the eyes of equity ownership of realty passed to the purchaser even though no deed was executed, and in that event the vendor would hold legal title on a naked trust which would follow it into the hands of the vendor’s heirs on the vendor’s death, under the maxim that equity regards that done which ought to have been done.”

The Chancellor sustained the third ground of the motion to dismiss predicated on lack of sufficient ownership by plaintiff’s decedent and we think the Chancellor was in error; therefore, Assignment No. 2 is sustained.

Assignment No. 3 charges error in dismissing the complaint for the alleged lack of capacity on the part of appellant’s decedent to enter into a binding contract with respect to the real estate in question without the joinder of his wife.

It should be observed that the plaintiff, Mrs. Campbell, wife of the deceased, did not raise any objection to her husband’s action in contracting with defendants for the removal of some soil and rock; furthermore, by her action in qualifying as Admin-istratrix ad Litem and in seeking the relief prayed for in her complaint herein, she must be regarded as having acquiesced in and ratified the action of her husband in making the contract in question.

Furthermore, personal representatives have both the right and the duty to marshal and collect assets and enforce dios-es in action which existed in favor of the deceased. This has been asserted in numerous cases in Tennessee and elsewhere. See Ketchum v. Dew, 47 Tenn. 532; Martin v. Stovall, 103 Tenn. 1, 52 S.W. 296, 48 L.R.A. 130.

We see no merit in the fourth ground of the motion and, therefore, Assignment No. 3 challenging the Chancellor’s action thereon is sustained.

Assignment No. 4 charges error in dismissing appellant’s complaint for disjunctive allegations of contractual liability.

Rule 8.05(2), Tennessee Rules of Civil Procedure, is as follows:

“A party may set forth two or more statements of a claim or defense alternately or hypothetically. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency.”

The Committee Comment thereunder concludes:

“ . . . Rule 8.05(2) allows greater latitude in the statement of all claims or defenses a party has, and expressly permits inconsistent pleading.”

Under Rule 18, Tennessee Rules of Civil Procedure, a party asserting a claim to relief may join either independent or alternative claims, legal or equitable, in contract or in tort.

We are of opinion that the sixth ground of the motion to dismiss based upon the assertion of liability against either or both defendants should not have been sustained; therefore, Assignment No. 4 is sustained.

In this connection, it should be noted that the Chancellor overruled the fifth ground of the motion charging that the contract violated the one year Statute of Limitations with respect to the performance of an oral contract, and we concur in the Chancellor’s ruling on that question.

The remaining Assignments Nos. 5, 6, 7 and 8, charge error in refusing appellant’s request to amend her complaint after the final decree has been entered.

It was largely discretionary with the Chancellor to allow or disallow amendments under the circumstances presented in this case and we are unwilling to hold that it was reversible error to decline to grant permission to amend as was sought by plaintiff. However, a careful examination of this entire record convinces us that, in essence, the Chancellor dismissed the complaint on grounds which were not based on findings of facts but upon grounds involving questions of law, as to which we disagree with him.

It is our conclusion that this case was erroneously dismissed without a hearing on the merits and that such a hearing should be accorded these parties; therefore, the decree of the Chancellor is reversed and the cause will be remanded to the Trial Court for a hearing on the merits with opportunity afforded plaintiff and the defendants to amend their pleadings in such fashion as will enable the Court to examine the merits of the case, both as to facts and law, and render judgment accordingly.

REVERSED AND REMANDED.

TODD, J., concurs.

GILLIAM, Special Judge, concurs.