Assigned on Briefs July 1, 2019
from the Chancery Court for Union County No. 6899 Elizabeth
C. Asbury, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Vacated and Remanded
Love, Mountain City, Tennessee, Pro Se.
A. Fraser and Christopher W. Sherman, Knoxville, Tennessee,
for the appellees, Andre McDowell and Denise McDowell.
Dennis McGee, J., delivered the opinion of the court, in
which Richard H. Dinkins and John W. McClarty, JJ., joined.
DENNIS McGEE, JUDGE.
Facts &Procedural History
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
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.
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.
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. 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."
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
Rule 12.02(7) and Rule 19 of the
Tennessee Rules of Civil Procedure, the Court finds
the Defendants' Motion is well-taken, and ...