Collier v. Slayden Bros. Ltd. Partnership of Waverly

712 S.W.2d 106, 1985 Tenn. App. LEXIS 3318
CourtCourt of Appeals of Tennessee
DecidedNovember 20, 1985
StatusPublished
Cited by16 cases

This text of 712 S.W.2d 106 (Collier v. Slayden Bros. Ltd. Partnership of Waverly) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collier v. Slayden Bros. Ltd. Partnership of Waverly, 712 S.W.2d 106, 1985 Tenn. App. LEXIS 3318 (Tenn. Ct. App. 1985).

Opinion

OPINION

KOCH, Judge.

This appeal involves the efforts of a bankrupt couple to regain possession of [107]*107three parcels of real property located in Humphreys County. Upon being notified that the property was going to be sold on 'the courthouse steps, the plaintiffs filed an action pursuant to Tenn.Code Ann. §§ 66-4-201 and 66-4-2021 in the Chancery Court for Humphreys County seeking to enjoin the foreclosure sale and for other relief. On December 12, 1984, the trial court granted the defendants’ motion to dismiss pursuant to Tenn.R.Civ.P. 8.05(1) and Tenn. R.Civ.P. 12.02(6). The plaintiffs have perfected this appeal. For the reasons stated, herein, we affirm the decision of the trial court to dismiss this complaint for failure to state a claim upon which relief can be granted.

I.

Mark H. Collier, an attorney practicing law in Dickson, and his wife owned three parcels of property in Humphreys County. Among these parcels was the third floor of the old Dairy Whip Building located on a corner lot on the west of the court square in Waverly. The rest of this building was owned by the Slayden Brothers partnership.2 In accordance with their deeds, the Colliers and the partnership shared the responsibility for the maintenance and repair of the building’s roof.

On April 23, 1980, the Colliers used their three parcels of property to secure a $4,236.71 note payable to the First National Bank of Dickson. The deed of trust3 executed contemporaneously with the note, provided, in part, that in the event of the Colliers’ default

this conveyance remains in full force and effect, and the said Trustee, or his successor in trust, is hereby authorized and empowered, upon giving 21 days notice, by 3 publication in THE NEWS DEMOCRAT, Waverly, County, Tennessee, to sell said property at the Courthouse door in said County, to the highest bidder, for cash, and free from the equity of redemption, homestead, dower, and all other exemptions of every kind, which are hereby expressly waived, and the said Trustee, or his successor in trust, is authorized to make a deed to the purchaser. The creditor may bid at any sale under his conveyance.

On June 18, 1981, the Colliers filed for bankruptcy in the United States District Court for the Middle District of Tennessee.4 On October 5, 1982, the United States District Court entered an order releasing them from all dischargeable debts.5 Subsequently, on April 7,1983, the Colliers’ trustee in bankruptcy formally abandoned these three interests in real property having determined that the Colliers actually had little, if any, equity in these parcels.'

Apparently the Colliers had abandoned the third floor of the old Dairy Whip Building because it had fallen into disrepair. Its windows were broken, and the birds were using it as a nesting place. The roof was also leaking seriously threatening to cause severe damage to the structure of the building itself and to its contents. Because the Colliers were unable to meet their obligation to participate in the maintenance of the building, William Slayden contacted the First National Bank to discover what the bank intended to do with the property. The representatives of the bank indicated that they were considering foreclosing on the property because the note was in default and offered to sell the Slayden Brothers partnership the note and deed of trust. They agreed upon a price, and on Novem[108]*108ber 21, 1983, the First National Bank of Dickson executed a written assignment conveying the Colliers’ mortgage and note to the Slayden Brothers partnership. This assignment was duly recorded.

The Slayden Brothers partnership published the three notices of its intent to sell the three pieces of property as required by the deed of trust. On April 6, 1984, William Slayden notified Mark Collier that the partnership had purchased the mortgage and note and that it intended to sell this property at the courthouse steps on April 20, 1984. The Colliers filed this action on April 19, 1984.

On May 16, 1984, the defendants filed a motion “to dismiss and/or strike complaint.” This motion, together with other motions filed by the plaintiffs, was heard by the trial court on December 12, 1984. Although counsel for the plaintiffs had adequate notice of this hearing,6 he failed to appear in court. Thus, all pending motions were disposed of in the absence of plaintiffs’ counsel.

II.

Part of the trial court’s basis for dismissing this complaint was that it failed to comply with Tenn.R.Civ.P. 8. In this regard, Tenn.R.Civ.P. 8.05(1) provides, in part:

Each averment of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required. Every pleading stating a claim or defense relying upon the violation of a statute shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary to constitute such breach so that the other party can be duly apprised of the statutory violation charged.

When the complaint in this case is measured against this standard, it is clearly deficient. It is far from being “simple, concise and direct.” It is a conglomeration of facts, legal argument and conjecture.

While it is not this Court’s role to sift through the allegations in such a pleading in an effort to ascertain the precise issues in controversy, H.H. Luttrell & Associates v. Bank of Quitman, 559 S.W.2d 942, 943 (Tenn.1978), the failure to file a complaint in simple, concise and direct terms does not necessarily require dismissal in the first instance. A pleading challenged under Tenn.R.Civ.P. 8.05 should be tested using the frequently followed rule that a pleading should not be dismissed, no matter now inartfully worded, if it states a good cause of action. Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 50-51, 407 S.W.2d 150, 152 (1966) and Kemp v. Town of Lebanon, 215 Tenn. 118, 124, 384 S.W.2d 14, 17 (1964). Complaints should not be dismissed because of ambiguity, indefiniteness or uncertainty where there exists the remedy of obtaining a more definite statement. See 61A Am.Jur.2d Pleading § 254 (1981) and 71 C.J.S. Pleading § 224 n. 92 (1951).

Such a remedy was available to the defendants in this case; however, they did not chose to take advantage of it. When faced with a complaint as inartfully worded as the one in this case, the defendants should have filed a Tenn.R.Civ.P. 12.05 motion for more definite statement pointing out “the defects complained of and the details desired.” If this motion is granted and the plaintiff fails to clarify its complaint, then it is subject to dismissal. See 2A J. Moore & J. Lucas, Moore’s Federal Practice 1112.20 (1985) and 5 C. Wright & A. Miller, Federal Practice and Procedure § 1379 (1969).

The complaint in this case, although overly long, repetitive and vague, contains several intelligible allegations that might amount to a claim pursuant to Tenn.Code Ann.

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Cite This Page — Counsel Stack

Bluebook (online)
712 S.W.2d 106, 1985 Tenn. App. LEXIS 3318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collier-v-slayden-bros-ltd-partnership-of-waverly-tennctapp-1985.