ALICE WHEELER, ET AL. v. MARK ABBOTT, ET AL. - Articles

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Posted by: Stacey Shrader Joslin on Aug 10, 2016

Court: TN Court of Appeals

Attorneys 1:

Douglas R. Beier, Morristown, Tennessee, for the appellant, Mark Abbott.

Attorneys 2:

Bruce Hill, Sevierville, Tennessee, for the appellees, Alice Wheeler; Judy Rose; Jeanne Potvin; Harvey McCulley, Jr.; Jean Abbott; Steven Abbott; Jerry Abbott; Larry Abbott; Diane West; and Geraldine Abbott.

Judge(s): SWINEY

Catherine McCulley, Jean Abbott, Steven Abbott, Jerry Abbott, Larry Abbott, Diane West, and Geraldine Abbott (“Plaintiffs”) sued Mark Abbott and Stephanie Abbott (“Defendants”) with regard to an alleged easement located across real property in Sevier County, Tennessee. During the pendency of the suit, Catherine McCulley died and a motion was made to substitute her four children as party plaintiffs. Without benefit of a hearing, the Chancery Court for Sevier County (“the Trial Court”) entered an order allowing the substitution. The case then was tried, and the Trial Court entered its judgment finding and holding, inter alia, that “the Plaintiffs, the heirs of Elmer Abbott, have an easment across the property of the Defendant, Mark Abbott . . . .” Defendants appeal to this Court raising several issues. We find and hold that the motion for substitution and the Trial Court’s order granting the motion failed to comply with Tenn. R. Civ. P. 25, which deprived Defendants of an opportunity to be heard prior to entry of the order allowing substitution. We, therefore, vacate both the April 22, 2015 order allowing substitution of parties and the June 5, 2015 judgment holding that “the Plaintiffs” have an easement, and we remand this case for further proceedings consistent with this Opinion.

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