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Palmer v. Colvard

Court of Appeals of Tennessee, Knoxville

July 31, 2019

ROBERT D. PALMER, JR., ET AL.
v.
WAYNE ERIC COLVARD, ET AL.

          Assigned on Briefs November 1, 2018

          Appeal from the Chancery Court for Hamilton County No. 17-0829 Pamela A. Fleenor, Chancellor.

         This appeal concerns the court's dismissal of the plaintiffs' claims with prejudice because the plaintiffs lacked the capacity to prosecute their complaint as the alleged personal representatives of their father's estate. We affirm.

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

          Robert Dean Palmer, Jr. and Suzanne Johnson, Ooltewah, Tennessee, pro se.

          Samuel F. Hudson, Dunlap, Tennessee, for the appellee, Wayne Eric Colvard and Wayne Eugene Colvard.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J. and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          John W. McClarty, Judge.

         I. BACKGROUND

         This case arises from the death of Robert D. Palmer, Sr. ("Decedent"). Prior to his death, Decedent entered into a contract with Wayne Eric Colvard and Wayne Eugene Colvard (collectively "Defendants") for the sale of his tax preparation business. Decedent's children, Robert Dean Palmer, Jr. and Suzanne Johnson (collectively "Plaintiffs"), filed suit against Defendants in their alleged capacities as personal representatives of Decedent's estate for breach of contract, fraud, and unjust enrichment relating to the sale. The details of the complaint are not at issue in this appeal.

         Defendants responded with a motion to dismiss pursuant to Rule 12.02, subsections (6) and (8), of the Tennessee Rules of Civil Procedure, which provides, in part, as follows:

Every defense, in law or fact, to a claim for relief in any pleading . . . 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: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19, and (8) specific negative averments made pursuant to Rule 9.01.

Rule 9.01 of the Rules of Civil Procedure provides, in part, as follows:

When a party desires to raise an issue as to . . . the capacity of any party to sue or be sued or the authority of a party to sue or to be sued in a representative capacity, he or she shall do so by specific negative averment, which shall include such supporting ...

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