ROBERT D. PALMER, JR., ET AL.
WAYNE ERIC COLVARD, ET AL.
Assigned on Briefs November 1, 2018
from the Chancery Court for Hamilton County No. 17-0829
Pamela A. Fleenor, Chancellor.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
Dean Palmer, Jr. and Suzanne Johnson, Ooltewah, Tennessee,
F. Hudson, Dunlap, Tennessee, for the appellee, Wayne Eric
Colvard and Wayne Eugene Colvard.
W. McClarty, J., delivered the opinion of the Court, in which
D. Michael Swiney, C.J. and Frank G. Clement, Jr., P.J.,
W. McClarty, Judge.
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.
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,
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 ...