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Love v. McDowell

Court of Appeals of Tennessee, Knoxville

August 26, 2019

TROY LOVE
v.
ANDRE MCDOWELL ET AL.

          Assigned on Briefs July 1, 2019

          Appeal from the Chancery Court for Union County No. 6899 Elizabeth C. Asbury, Chancellor

         This appeal involves a suit seeking partition of property owned by multiple individuals. The trial court dismissed the suit for failure to join an indispensable party. For the following reasons, we vacate the trial court's order of dismissal and remand the case for further proceedings.

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

          Troy Love, Mountain City, Tennessee, Pro Se.

          Brad A. Fraser and Christopher W. Sherman, Knoxville, Tennessee, for the appellees, Andre McDowell and Denise McDowell.

          Carma Dennis McGee, J., delivered the opinion of the court, in which Richard H. Dinkins and John W. McClarty, JJ., joined.

          OPINION

          CARMA DENNIS McGEE, JUDGE.

         I. Facts &Procedural History

         This appeal concerns a suit to partition property located at 182 Walleye Point, Sharps Chapel, Tennessee (the "Property"). The Property was originally owned by four individuals: Troy Love, his wife Judy Love, and Denise McDowell (Judy Love's daughter), and her husband, Andre McDowell. A partial but incomplete copy of the deed conveying the property to these parties is included in the record. The deed was dated November 24, 1997, and conveyed the property to "Andre McDowell and wife, Denise McDowell and Troy Love and wife, Judy Love." On June 5, 2012, Judy Love died intestate. She was survived by her husband Mr. Love, her daughter Mrs. McDowell, and at least one other child, Wendy Nicola.[1]

         On May 18, 2017, Mr. Love filed a complaint to partition the Property. Mr. Love asserted in his complaint that he co-owned the Property with Mr. and Mrs. McDowell and named them as the only defendants to the suit. Mr. Love did not include Ms. Nicola as a party to the suit or identify her as potentially having any interest in the Property.

         Mr. and Mrs. McDowell filed an answer opposing the partition and sale of the property. They asserted multiple defenses, including the defense that Mr. Love had failed to join a necessary and indispensable party. On November 7, 2018, Mr. and Mrs. McDowell filed a motion to dismiss. They argued that Ms. Nicola was an indispensable party and because Mr. Love had not joined her in the suit, the complaint should be dismissed. On December 17, 2018, the trial court held a hearing on Mr. and Mrs. McDowell's motion. Mr. Love was not present for this hearing.

         On January 4, 2019, Mr. Love filed a response and affidavit in opposition to Mr. and Mrs. McDowell's motion. Mr. Love attributed his delay in responding to the motion and failing to attend the hearing to conditions surrounding his incarceration.[2] Mr. Love argued that Mr. and Mrs. McDowell "failed to prove that Wendy Nicola is an indispensable party or that she cannot now be joined as a party" to the suit. He further asserted that Ms. Nicola "has not claimed any interest relating to the subject of this action and has not made an appearance in this case."

         On January 9, 2019, the trial court entered an order granting Mr. and Mrs. McDowell's motion dismissing the action. The order states in its entirety:

This matter came on for hearing on December 17, 2018, before this Court upon proper notice for the Motion to Dismiss for Failure to Join an Indispensable Party filed by Defendants Andre McDowell and Denise McDowell. Plaintiff Troy Love filed no opposition to the Motion and failed to attend the hearing. Upon the Court's review of the Motion, the arguments of counsel for Defendants, the record as a whole, and pursuant to

Rule 12.02(7) and Rule 19 of the Tennessee Rules of Civil Procedure, the Court finds the Defendants' Motion is well-taken, and ...


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