Presley v. Hanks

• Decision Date: 20 July 1989
• Citation: 782 S.W.2d 482
• Parties: Deborah Delaine PRESLEY, Plaintiff-Appellant, v. Joseph A. HANKS, Priscilla B. Presley and National Bank of Commerce, co-executors Estate of the Estate of Elvis A. Presley, Deceased, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 482

782 S.W.2d 482

Deborah Delaine PRESLEY, Plaintiff-Appellant, v. Joseph A. HANKS, Priscilla B. Presley and National Bank of Commerce, co-executors Estate of the Estate of Elvis A. Presley, Deceased, Defendants-Appellees.

Court of Appeals of Tennessee,

Western Section,

at Jackson.

July 20, 1989.

Application for Permission to Appeal

Denied by Supreme Court Nov. 6, 1989.

Edmund W. Turnley, III, Nashville, for plaintiff-appellant.

C. Barry Ward, Memphis, for defendants-appellees.

CRAWFORD, Judge.

This is a will construction case. On February 18, 1988, appellant, Deborah Delaine Presley, acting pro se, filed a petition in the probate court entitled "Petition To Determine Heirship And For Share Of Estate Under Will Heretofore Admitted To Probate." In essence, the petition alleges that petitioner is the illegitimate daughter of the testator, Elvis A. Presley, and pursuant to the terms and provisions of his Last Will and Testament, she, as his daughter, is entitled to a share of the estate.

The Answer of the co-executors, Joseph A. Hanks, Priscilla B. Presley and National Bank of Commerce, filed September 23, 1988, denies the material allegations of the complaint and joins issue thereon. The Answer specifically avers that the decedent's will expressly excludes petitioner as a beneficiary. On the same date, the co-executors also filed a motion for summary judgment asserting that the express language of Elvis Presley's will manifests his intent "that only those children born in lawful wedlock to Mr. Presley are entitled to inherit from and through him, and that Lisa Marie Presley" is the only such child.

The motion for summary judgment was supported by the affidavit of Priscilla B. Presley and D. Beecher Smith, II. The Presley affidavit asserts that Elvis Presley was married only once in his lifetime and that was to the affiant. The affidavit further states that the daughter of the affiant and Elvis Presley, Lisa Marie Presley, is the only child born to Elvis Presley during a lawful marriage.

Smith's affidavit states that pursuant to Elvis Presley's instructions, he prepared the Last Will and Testament in question. Affiant further states that Mr. Presley had previously successfully defended a paternity suit in California and was cognizant of the need to specify in his will those he wanted to take thereunder.

Appellant's affidavit, filed November 7, 1988 in response to the motion for summary judgment and supporting affidavits, states that she received a late notice of the filing of the summary judgment motion, and then on November 3, 1988, received a letter from the estate's attorney notifying her of the time for a hearing on the motion for summary judgment. She further avers in her affidavit that she has been unsuccessful in obtaining an attorney to represent her, and that she needs additional time before the hearing on the motion for summary judgment in order to obtain an attorney. Appellant also filed affidavits from her mother, Barbara Jean Young, and from Gene Smith, purportedly Elvis Presley's first cousin. These affidavits, in general, establish the relationship between appellant's mother and Elvis Presley in support of appellant's claim that Mr. Presley was her father.

The memorandum opinion of the probate judge filed November 29, 1988 recites that it is premised on "the sworn petition of Deborah Delaine Presley; Estate's Motion for Summary Judgment, Answer and Memorandum in Support thereof; argument of Counsel for the Estate and argument of Petitioner, who was not represented by Counsel; and the entire record in this Cause." Basically, the probate judge found that appellant failed to establish that she was the daughter of Elvis Presley, and further construed the Presley will to exclude illegitimate children as beneficiaries. The memorandum opinion was incorporated in the order entered November 29, 1988, which granted summary judgment and dismissed appellant's petition.

On December 29, 1988, appellant, through counsel, filed a "Motion to Reconsider Order Granting Summary Judgment." A hearing was held on this motion December 30, 1988, and an order was entered the same date denying the motion, resulting in this appeal.

Appellant presents six issues for review which we will now consider. Issues I, II and III will be considered together. These issues, as set forth by appellant in her brief, are as follows:

I. Whether the court erred in failing to set aside the summary judgment granted to the estate against the petitioner, Deborah Delaine Presley, in order to allow the petitioner to have legal counsel represent her?

II. Whether the court's memorandum opinion and order granting summary judgment to the estate was overly broad and encompassed issues not presented to the court by the estate's motion for summary judgment?

III. Whether the court's finding that it was legally impossible for appellant to claim any interest in the testator's estate due to the fact that appellant could not be legitimated was clearly erroneous?

Appellant asserts that the probate judge should have continued the hearing on the motion for summary judgment to allow her to obtain counsel. The record does not reflect when the hearing on the motion was held, but the record does reflect that appellant filed her petition on February 18, 1988, the motion for summary judgment was filed September 23, 1988, and the order granting summary judgment was entered November 29, 1988.

There is no absolute right to counsel in a civil trial. Barish v. Metropolitan Gov't., 627 S.W.2d 953 (Tenn.App.1981). The trial court has broad discretion in the grant or denial of a continuance and the trial judge's decision will not be set aside unless there is a clear showing of abuse. Barish, supra. From the record before us, we can find no such clear showing of abuse. However, as a practical matter, it appears that appellant's real complaint regarding these issues is the scope of the probate judge's findings in his memorandum opinion. Appellant's counsel argued in the motion to reconsider, and argues in this court that the probate judge's finding that appellant is not the daughter of Elvis Presley was not an issue to be decided on the motion for summary judgment. We agree with appellant's counsel. The motion for summary judgment, as well as the memorandum in support of the motion for summary judgment, explicitly established that the only question presented by the motion for summary judgment "is whether Elvis Presley's Will makes provision for inheritance by an individual who contends she is the illegitimate daughter of Mr. Presley." Furthermore, the affidavits supporting the motion for summary judgment did not in any way dispute appellant's claim in her petition that she was Mr. Presley's illegitimate daughter. Appellees' entire thrust on their motion for summary judgment was that a proper construction of the will reveals that an illegitimate child is not a beneficiary. The probate judge stated in his memorandum opinion:

When a motion for summary judgment is made, an adverse party may not rest upon the mere allegations of her pleading, but her response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If she does not so respond, summary judgment, if appropriate, shall be entered against her. (emphasis in original).

We disagree with the probate judge's statement of the law. The controlling authority, Rule 56.05, Tennessee Rules of Civil Procedure, states as follows:

56.05. Form of Affidavits--Further Testimony--Defense Requited.--Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (emphasis added).

As previously noted, the motion for summary judgment filed by the co-executors of the Presley estate was not supported by any sworn proof concerning the parentage of appellant. Accordingly, appellant was under no obligation to set forth any specific facts in response thereto "showing that there is a genuine issue for trial." The record is clear that appellees, for the purpose of the summary judgment motion only, conceded that appellant is the testator's illegitimate daughter.

We also note that there is nothing in the appellees' supporting affidavits which would require appellant to set forth any specific fact concerning her ability to be declared the legitimate child of Elvis Presley. Therefore, the finding of the probate judge that appellant is not the daughter of Elvis Presley, and the finding of the probate judge that it is legally impossible for appellant to be determined a legitimate child of Elvis Presley should be vacated, and the order modified accordingly.

The next issue for review which encompasses appellant's Issues IV and V is whether the probate judge erred in his construction of the decedent's will.

The dispute in this case involves Item IV of Elvis Presley's will which is as follows:

ITEM IV

Residuary Trust

After payment of all debts, expenses and taxes as directed under ITEM I hereof, I give, devise, and bequeath all the rest, residue, and remainder of my estate, including all lapsed legacies and devises, and any property over which I have a...