Edwin Lester Smith v. Wilma Neyman Smith ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 3, 2012 Session
EDWIN LESTER SMITH V. WILMA NEYMAN SMITH
Appeal from the Chancery Court for Bradley County
No. CV09278 Hon. Jerri Bryant, Chancellor
No. E2011-02430-COA-R3-CV-FILED-FEBRUARY 20, 2013
This appeal involves a claim filed to recover real property and personalty that was allegedly
misappropriated from Decedent prior to his death. Decedent died at the age of 89, leaving
Wife and Son as his survivors. Prior to his death, Decedent transferred the majority of his
monetary assets and real estate to Wife. Following his death, Son brought this action,
alleging that Decedent did not have the mental capacity to execute the transfers and that the
transfers were a result of undue influence exercised by Wife, who exploited her confidential
relationship with Decedent and also committed fraud to complete the unlawful conversion
of the entirety of the estate. The trial court dismissed Son’s claims and awarded any
remaining personalty to Wife. Son appeals. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., P.J. and D. M ICHAEL S WINEY, J., joined.
Frank E. Watkins, Jr., Smyrna, Georgia, and Steven C. R. Brown, Birmingham, Alabama,
for the appellant, Edwin Lester Smith.
Robert B. Wilson, III, Cleveland, Tennessee, for the appellee, Wilma Neyman Smith.
OPINION
I. BACKGROUND
Lester Anah Smith (“Decedent”) was born on October 15, 1917. He married Julia
Smith (“First Wife”), who died on February 21, 1989. One child, Edwin Lester Smith
(“Son”), was born of the marriage. On June 1, 1990, Decedent married Wilma Neyman
Smith (“Wife”), who was born on January 31, 1927. This was Wife’s fourth marriage. One
day prior to the marriage, Decedent transcribed a will in which he devised the majority of his
estate to Son. Likewise, Decedent stated that he wished to provide a home for Wife for the
remainder of her life, one half of his income, and “gifts which [he] may later bestow.”
Decedent and Wife resided in the marital home (“Riverwood”) that he had shared with
First Wife until Decedent sold the home for $375,000 on June 25, 2001. The next day,
Decedent and Wife purchased a new home (“Harris Circle”) for $205,000 in Cleveland,
Tennessee. Decedent and Wife moved to Cleveland, and Decedent transferred his Hilliard
Lyons, LLC (“Hilliard”) investment accounts from Knoxville to a local office in Cleveland.
Decedent opened two accounts, an account in his name (“Account 1”) and a joint account
that he shared with Son (“Account 2”). Decedent deposited $100,000 from the proceeds of
the sale of Riverwood into Account 2. Son never contributed any money to Account 2 and
never received any funds contained in Account 2.
On October 23, 2003, Decedent transferred the entirety of the money contained in
Account 1 to a newly created joint account that he opened with Wife (“Account 3”). On that
day, Decedent transferred approximately $36,939.76 from Account 1 to Account 3.
Likewise, Decedent withdrew approximately $100,000 from Account 2.1 In 2004, Decedent
authorized a series of withdrawals from Account 2, leaving a balance of $22.28 that was
ultimately depleted several years later. Also in 2004, Decedent transferred his interest in
Harris Circle to Wife. In 2005, Decedent made several subsequent deposits into Account 3
in the amounts of $6,129.07, $10,201.92, and $16,330.99.
Decedent died on October 3, 2007. Although Son resided in Wisconsin, he sought
appointment as personal representative of Decedent’s estate. Son alleged that Wife had
improperly obtained the majority of Decedent’s assets, leaving only miscellaneous household
goods in the estate. Wife filed a petition for an elective share of Decedent’s estate, years
support, and exempt property. She denied Son’s claim and asserted that Decedent’s estate
merely consisted of household furnishings. She requested appointment as the personal
representative of the estate for purposes of general administration and conceded to Son’s
appointment for purposes of the proceedings relating to her petition. Following a hearing,
the court admitted the will to probate and appointed Wife and Son as co-personal
representatives of Decedent’s estate.
On September 23, 2009, Son filed a complaint against Wife, alleging that Wife
engaged in a scheme to impoverish Decedent by transferring Decedent’s assets into Account
1
It was unclear from the record where the money in Account 2 was transferred or how it was spent.
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3; by eliciting the move to Cleveland, the corresponding sale of Riverwood, and the transfer
of ownership in Harris Circle; by usurping the proceeds from the sale of Riverwood and
Decedent’s life insurance benefits; and by committing fraud on at least three separate
occasions. He asserted that Wife forged Decedent’s signature on a check, dated October 13,
2005, in the amount of $7,700 (“Check 1”), that Wife forged Decedent’s signature on a
check, dated April 10, 2007, in the amount of $6,000 (“Check 2”), and that Wife forged his
signature and Decedent’s signature on a check, dated August 17, 2007, in the amount of
$22.28 (“Check 3”). He claimed that Wife also forged Decedent’s signature on a check,
dated February 13, 2006, that depleted one of Decedent’s life insurance policies (“New York
Life”). He also claimed that at Wife’s direction, Decedent designated Wife as the beneficiary
of another life insurance policy (“Metropolitan Life”) and that Wife received the benefits of
that policy after Decedent’s death. Son also sought to bar Wife’s petition.
Wife denied Son’s allegations. She asserted that she was not in a confidential
relationship with Decedent as defined by law and that she never exerted undue influence on
him. She claimed that Decedent was mentally competent and was never subservient to her.
She alleged that Decedent personally negotiated the sale of Riverwood and the corresponding
purchase of Harris Circle and that Decedent was, at all times, in control of his finances and
investment accounts. She stated that Decedent’s monetary gifts to her were simply evidence
of his attempt to provide for her in the event that he predeceased her. Relative to the forgery
allegations, Wife responded that at Decedent’s request, she and others helped Decedent sign
his name by steadying his hand but asserted that she only assisted him when he requested
assistance. She denied any knowledge regarding the alleged forgery of Son’s signature on
Check 3. In any event, she claimed that Son’s attempt to set aside or invalidate the sale of
Riverwood, the transfer of Harris Circle, and the alleged conversion of Decedent’s monetary
assets were barred by the applicable statute of limitations.
A hearing was held on Son’s complaint at which several witnesses testified. Diana
Watkins testified that she attended a family meal on August 22, 2003, at which Decedent,
Son, her husband,2 and others were present. She stated that Decedent usually appeared neatly
dressed but that on that day, Decedent was simply casually dressed. She related that
Decedent engaged in “very little” interaction and was “withdrawn” throughout the meal. She
conceded that Decedent was usually not talkative but asserted that he “usually listened with
interest to any conversation that was going on in the room.” She believed that on that day,
Decedent did not seem “aware of what was going on.” She attempted to engage him in
conversation about cars, his favorite subject, but he offered vague responses. Saddened by
her interaction with him, she sent him a subscription to Motor Trend Magazine in the hope
that he would revive his interest in cars. She stated that he never acknowledged her gesture.
2
Mrs. Watkins’s husband is Son’s attorney, Frank E. Watkins, Jr.
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Wife testified that she became acquainted with Decedent and First Wife while she was
still married. She stated that after she was no longer married and First Wife passed away, she
and Decedent began a relationship and were eventually married. She opined that she and
Decedent were happily married and that Decedent was a generous husband. She related that
at times, Decedent could be “tight” with his money. She understood Decedent’s caution in
spending money because he worked hard to accumulate his wealth. She related that while
Decedent was reserved, he had a “good personality” and “met the public well.” She stated
that Decedent was proud of his appearance and was always truthful and a person of high
character. She explained that Decedent was an “intelligent man,” who was proud of his work
and was also “[v]ery strong willed.” She insisted that she “never tried” to tell Decedent how
to spend his money or make investments.
Wife stated that she and Decedent decided to move to Cleveland because they knew
quite a few people in the area and because her family lived in the area. She said that
Decedent had lived in Cleveland and was familiar with the area. She recalled that they also
considered moving to Chattanooga, Tennessee but that Decedent rejected the idea and made
the final decision to move to Cleveland. She related that Decedent negotiated the sale of
Riverwood and the purchase of Harris Circle. She insisted that she never told Decedent to
put her name on the deed to Harris Circle or to transfer his interest in Harris Circle to her.
She said that Decedent told her that he wanted her to have his interest in the property in case
he died first.
Wife testified that her children became close to Decedent and visited them often,
especially after she and Decedent moved to Cleveland. She related that Son also visited them
but that beginning in 2002, he elected to stay in a hotel instead of with them during his visits.
She believed that they enjoyed a good relationship with Son. She stated that Decedent never
told her about First Wife’s will and that after he died, she found a letter from Son in which
Son informed Decedent about the will. She recalled that Decedent and Son argued from time
to time but that their arguments never lasted long because Decedent loved Son. She asserted
that despite Decedent’s relationship with Son, Decedent instructed her to refrain from
informing Son each time he was hospitalized. She explained that Decedent was simply a
private person and did not want Son to worry.
Wife admitted that she did not have much money when she married Decedent but
claimed that she had amassed some savings by working until she was 65 years old. She also
owned a home, a car, and various pieces of furniture prior to her marriage to Decedent. She
related that Decedent sold her home after they were married and instructed her to give the
proceeds of the sale to her children. She recalled that she received $30,000 from the sale of
her home and that she gave each of her three children $10,000. She stated that in an effort
to show fairness, Decedent also gave Son approximately $10,000.
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Wife testified that she did not have a will prior to her marriage to Decedent. She said
that once married, they each transcribed documents designating each other as beneficiary of
his or her respective estate. She related that she and Decedent “always thought that who died
first” would leave “what they had to the other one.” She insisted that pursuant to her
handwritten document, even though Decedent deeded Harris Circle to her, Decedent would
have recouped Harris Circle if she predeceased him. She stated that after Decedent’s death,
she drafted a will that designated her children as her beneficiaries. She related that her estate
consisted of Harris Circle, a car, and approximately $75,000. She also had a life insurance
policy in which she designated her children as beneficiaries.
Relative to Decedent’s physical health, Wife testified that Decedent was healthy when
she married him in 1990, despite his tremors that made it difficult for him to sign his name.
She said that he fell a few times while they were living in Knoxville but insisted that
Decedent quickly recovered. She conceded that Decedent occasionally suffered from
seizures and falls and that he was diagnosed with prostate cancer in 2001 and continually
received cancer treatments until his death in 2007. She said that in the last year of
Decedent’s life, he had to wear adult diapers because he lost control of his kidneys. She
stated that Decedent also lost energy, was weak from his treatments, and slept a lot. She
recalled that Decedent did not need help with completing every day tasks until the last year
of his life.
Relative to Decedent’s mental health, she claimed that he never complained about
memory problems and that she never observed any changes in his mental capacity. She
acknowledged a medical document in which Decedent was diagnosed with dementia in 2005
but did not offer any explanation for the diagnosis. She also acknowledged a 2001 form in
which Decedent indicated that he suffered from “forgetfulness” and “nervousness,” along
with other symptoms. She identified medical documents from 2001 and 2002, in which
Decedent indicated that he suffered from a lack of energy, weakness, tiredness, depression,
fatigue, memory loss, and disorientation, along with other symptoms.
Relative to the allegations of forgery, Wife explained that she often completed forms
for Decedent because of his tremors. Wife identified Check 1 and Check 2 and asserted that
she and Decedent endorsed the checks by his or her respective signatures. She denied ever
signing Decedent’s name on a check but asserted that Decedent had trouble signing his name
and would often re-trace his signature or have someone steady his hand while he signed. She
also denied ever signing Son’s name on a check. She rejected Son’s claim that she sought
to convert Decedent’s assets. She related that Decedent was simply worried about her ability
to care for herself in the event that he predeceased her. She insisted that she never pressured
Decedent and that he always retained control of the money and made the financial decisions.
She claimed that she never withdrew money from any of the Hilliard accounts.
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Son testified that he initially became concerned about Decedent’s health when he
learned that Decedent had fallen twice in Knoxville. He admitted that Decedent continued
to mow the lawn and maintain the house, despite the accidents. He insisted that he noticed
a “big change” in Decedent when Decedent and Wife moved to Cleveland in 2001. He
complained that Wife did not inform him about Decedent’s health issues and failed to notify
him when Decedent was hospitalized. He learned of several of the hospital visits after
Decedent died. He only learned of a November 2003 hospital visit because he contacted
Wife’s daughter-in-law after his attempt to locate Decedent was unsuccessful.
Son stated that on August 22, 2003, he drove Decedent to Knoxville to see Decedent’s
former house and workplace. He also took Decedent to meet several family members once
they returned to Cleveland. He identified a photograph of Decedent in which Decedent
appeared to have soiled himself sometime before the photograph was taken. He insisted that
Decedent would not have allowed the photograph to be taken if Decedent had realized the
state in which Decedent appeared. He stated that during the meal, Decedent asked him if he
knew where Decedent lived. He said that Decedent did not refer to him by name and did not
acknowledge him as his son. He stated that after he took Decedent home, Wife told him that
Decedent had asked who the “two young men were that brought him home.” 3
Son testified that prior to First Wife’s death, she gave him a copy of her will that
devised certain assets to him and his family. He claimed that he did not show the will to
Decedent even though Decedent administered First Wife’s estate without a will. He stated
that he did not give Decedent a copy of the will until shortly before Decedent married Wife.
He claimed that Decedent “practically turned white” while looking at the will and that
Decedent told him that some of the money had been spent. When he was confronted with
a letter, dated March 1, 1989, in which he notified Decedent about the will prior to the
administration of First Wife’s estate, he admitted that he wrote the letter and sent a copy of
the will along with the letter. Son explained that he did not remember writing the letter
because it was written shortly after First Wife’s funeral. He again acknowledged that despite
his and Decedent’s knowledge of the will, First Wife’s estate was administered without the
benefit of the will. He conceded that he also signed a receipt acknowledging that he received
everything from the estate that he was entitled to receive. He asserted that he viewed
Decedent as a custodian of the items and that he believed he would eventually obtain the
items in the will. He related that over the years, Decedent sent him several items even
though he never pressured Decedent for the items.
3
Wife insisted that Decedent never forgot Son’s identity and that she did not remember ever telling Son that
Decedent asked who drove him home.
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Son testified that when he visited Decedent in November 2003, he realized that some
items were missing. He confronted Wife with the will and asked her to refrain from
distributing or selling the items mentioned in the will. He claimed that Wife told him that
the items were hers and that he could not have them. He also claimed that his heated
discussion with Wife upset Decedent. He said that after he calmed down, he went to lunch
with Wife and Decedent. He claimed that when they returned, he went for a ride with
Decedent, who had no memory of the argument that occurred that morning.
Relative to Decedent’s finances, Son recalled that Decedent designated him as a joint
account holder of Account 2. He stated that he did not regularly receive statements for
Account 2 and never contributed any money to Account 2. He asserted that someone forged
his signature on the account application and that he had no knowledge of the repeated
withdrawals from Account 2. He asserted that $50,000 was withdrawn from Account 2 on
August 25, 2003, three days after Decedent evidenced signs of confusion. He acknowledged
that he received $11,704.91 from one of Decedent’s Hilliard accounts in October 1993.
Diane Peterson, a privately trained forensic document examiner, was accepted without
objection as an expert in the field of handwriting analysis. She reviewed several of
Decedent’s known handwriting signatures and compared them with documents Son alleged
had been forged. She identified several inconsistencies with eight of the nine documents.
She asserted that it was “highly probable” that Decedent did not sign the first four
documents, while she also asserted that Decedent “definitely” did not sign four of the
remaining documents. However, she asserted that it was “probable” that Decedent signed
the ninth document. She also reviewed several of Son’s known handwriting signatures and
compared them with one signature that Son alleged had been forged. She found that Son did
not sign the questioned document.
Ms. Peterson conceded that several of the known documents she used in her analysis
were not original documents and that all of the questioned documents were not original
documents. She admitted that she preferred to review original documents. She explained
that because she exclusively analyzed copied documents relating to four of the questioned
signatures, she could only assert that it was “highly probable” that those signatures were
forged.
William Varnell, a financial consultant for Hilliard, testified that he worked for
Hilliard for approximately 20 years in his Cleveland and Chattanooga office. He recalled
that Decedent and Wife hired him as their financial consultant in either late 2001 or early
2002 when Decedent sought to transfer his Hilliard accounts from Knoxville to Cleveland.
He recalled that in Knoxville, Decedent had an Individual Retirement Account (“IRA”), an
annuity attached to the IRA, and a joint account that he shared with Son. He asked Decedent
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whether Son would be transacting business from the joint account, and Decedent told him
that the money did not belong to Son. He related that Decedent sought to make safe
investments and “was more in a spending mode” than a saving “mode.”
Mr. Varnell testified that “a lot of” his clients were older and that he was accustomed
to advising and working with older clients. In an effort to ensure that each client had the
requisite mental capacity, he explained that he routinely discussed the client’s finances and
investments in detail. He recalled that in this particular case, he was cautious because
Decedent was an older client, because a joint owner was involved, and because Wife was not
Decedent’s first wife. He stated that Decedent was “a very intelligent, very competent
individual that knew exactly what he wanted and what he was doing.” He insisted that
Decedent remained intelligent throughout his interactions with him but conceded that
Decedent “became a little more feeble” in 2006. He claimed that he never observed anything
that would change his dealings with Decedent and that Decedent made the decision for each
transaction. He stated that while Wife always accompanied Decedent to his office, Wife
never advised Decedent. He related that forms were generally filled out by his assistant in
Chattanooga and that he simply obtained signatures from clients. He asserted that he was
“very specific” in watching who signed documents and that he instructed his secretary to
observe Decedent when Wife retrieved a form from the office for Decedent, who
occasionally signed documents while in his car.
Martha Jeffries, Mr. Varnell’s assistant, testified that she had worked at Hilliard for
approximately 13 years. She recalled that she spoke with Decedent and Wife each time they
visited the office. She asked Decedent questions about his prior employment and his trips
to Dollywood to see the Kingdom Heirs. She insisted that she never observed any interaction
between Decedent and Wife that led her to believe that Wife was advising Decedent or
instructing him. She related that Decedent appeared knowledgeable about his investments
and often spoke with Mr. Varnell after he received his statements in the mail. She claimed
that Decedent never appeared confused or incapable of understanding anything.
Linda Marie Epperson, a real estate professional with Re/Max, testified that she
represented Decedent in the purchase of Harris Circle. She recalled that Decedent and Wife
submitted an offer for Harris Circle shortly after they toured the property. She stated that she
had numerous conversations with Decedent and Wife throughout her representation of them
in the buying process. She agreed that Decedent had the sufficient mental capacity to
“comprehend the transaction,” appeared intelligent, and seemed happy to move close to
family. She conceded that her interaction with Decedent was limited in nature and duration
and that Decedent never asked her about the consequences of purchasing the home as tenants
in common as opposed to tenants by the entirety.
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Dorothy Barber, a title examiner, testified that on August 12, 2004, she met with
Decedent and Wife to prepare a new deed for Harris Circle that would effectively transfer
Decedent’s ownership rights to Wife. She recalled that she notarized the deed after ensuring
that Decedent and Wife understood the implications of the transaction. She specifically
recalled that Decedent’s signature was shaky, prompting her to delay the transaction. She
related that she engaged Decedent in conversation to ensure that he was aware of everything
around him and was capable of understanding what was happening. She believed that
Decedent understood the transaction and insisted that if she believed otherwise, she would
have instructed Decedent to obtain a letter from his physician. She stated that after she
notarized the deed, Decedent and Wife promptly recorded the deed.
Wendall Dixon testified that he first became acquainted with Decedent in 1990, when
Decedent married his aunt, Wife. He related that he visited Decedent and Wife while they
were still living in Knoxville and that he saw them “a lot more often” when they moved to
Cleveland. He recalled that his son had a special bond with Decedent. He stated that
Decedent loved working outdoors and continued to mow the Harris Circle property until
2005. He admitted that Decedent’s physical abilities gradually deteriorated but insisted that
Decedent remained “on top of the game mentally” and was an independent, strong willed
person. He believed that Wife was “a very caring and giving person” and was “very good”
to Decedent.
Janice Neyman testified that she had known Wife, her mother-in-law, for the entirety
of her life and that she was also “very close” to Decedent. She recalled that she visited
Decedent and Wife at least twice a month in Knoxville and that she and her husband also
accompanied Decedent and Wife on their yearly vacations. She stated that after Decedent
and Wife moved to Cleveland, she visited with them at least once a week. She related that
Decedent even accompanied them on their vacation in 2006. She recalled that while
Decedent deteriorated physically, he remained mentally sound and never appeared
incompetent.
Following the hearing, the trial court dismissed Son’s complaint and declared that
“[a]ll gifts, transfers, and conveyances made by [Decedent to Wife], during their marriage”
were “fully valid.” The court found that Son was not credible, while Wife, Mr. Varnell, and
Ms. Jeffries were credible witnesses. Likewise, the court rejected Ms. Peterson’s testimony
in its entirety and found that her testimony was “far, far, far outweighed” by the testimony
from Mr. Varnell, Ms. Jeffries, and Wife. The court noted that Ms. Peterson never examined
original documents and that Decedent “was from time to time helped with his handwriting
with someone holding his hand.” The court admitted that Son presented evidence of
Decedent’s dementia but found that the majority of the transfers were completed before
Decedent suffered from mental impairment. The court held that Decedent’s gifts to Wife
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were made “in the context of their husband and wife relationship” and that Wife “was the
natural object” of his “bounty.” The court also held that although Decedent and Wife
enjoyed a confidential relationship in that Wife provided care for Decedent, there was “clear
and convincing evidence[] to rebut any presumption of invalidity” because all gifts “were fair
and completely valid, as the free and informed acts of a capable donor.” The court further
held that “there was no credible evidence of undue influence,” that “there was no evidence
that there was anything improper about any transfers,” and “that all such gifts [were] valid.”
The court found that Decedent “handled everything” and was “informed,” “strong willed[,]
and knew what was going on” and that Wife “did not have the ability to influence him[,]
manipulate the investments, or take money out of any investments.” The court also found
that any claims regarding the conversion of First Wife’s property were barred pursuant to the
applicable statute of limitations. In the alternative, the court found that the property had been
adversely possessed and that Son was precluded from recovery pursuant to the doctrine of
laches. In so finding, the court dismissed the complaint and awarded Wife, as exempt
property, the entirety of the items listed in the inventory. This timely appeal followed.
II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether the trial court erred by rejecting Ms. Peterson’s expert testimony.
B. Whether the trial court erred by denying Son’s recovery of the items
allegedly given to him by First Wife.
C. Whether the trial court erred by failing to find that Wife used her
confidential relationship with Decedent to exercise dominion and control over
Decedent’s assets for her personal use.
III. STANDARD OF REVIEW
On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).
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IV. DISCUSSION
A.
Son asserts that the trial court did not give Ms. Peterson’s testimony its proper weight
when the testimony was admitted without objection. The trial court admitted the testimony
and observed Ms. Peterson as she examined the documents and submitted her opinions. As
the trier of fact, the trial court was permitted to give whatever weight it deemed appropriate
to the expert testimony. Where the trial court has seen and heard the witness, especially if
issues of credibility and weight to be given oral testimony are involved, considerable
deference must be accorded to the trial court on review. McCaleb v. Saturn Corp., 910
S.W.2d 412, 415 (Tenn. 1995); see also State v. Johnson, 717 S.W.2d 298, 305 (Tenn. Crim.
App. 1986) (“The weight to be given any evidence is a question of fact for the trier of fact
in each case.”). Following our review, we conclude that the evidence does not preponderate
against the trial court’s rejection of Ms. Peterson’s testimony as an expert witness.
B.
To the extent that Son complains about his loss of First Wife’s property, his complaint
was premised upon the tort of conversion. The Tennessee Legislature has limited recovery
for actions premised upon the tort of conversion to three years. Tenn. Code Ann. § 28-3-105.
The testimony introduced at trial reflected that Son was aware of the alleged conversion in
November 2003, when he realized that some items were missing and subsequently
confronted Wife, who proclaimed that he could not have the items because they belonged to
her. However, Son did not file his complaint until September 23, 2009. Thus, his allegations
relating to the alleged conversion of property that occurred prior to that time are barred by
the applicable three-year statute of limitations.
C.
Son asserts that Wife’s marriage to Decedent gave rise to a confidential relationship,
allowing her to unduly influence Decedent in an effort to obtain his assets and the entirety
of his interest in real property. He believes that Wife embarked upon an elaborate scheme
to drain Decedent of his assets and property because she believed that, as his wife, she was
entitled to receive everything Decedent owned. Wife responds that Decedent’s repeated
transfers of assets and real property were gifts, evidencing an intent to provide for her in the
event that he predeceased her.
“[T]he doctrine of undue influence is applicable only where there is a confidential
relationship[.]” In re Estate of Brevard, 213 S.W.3d 298, 302 (Tenn. Ct. App. 2006) (citing
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Keasler v. Estate of Keasler, 973 S.W.2d 213, 219 (Tenn. Ct. App. 1977)). A confidential
relationship is a relationship where confidence is placed by one in the other and the recipient
of that confidence is the dominant personality, with the ability, because of that confidence,
to influence and exercise dominion over the weaker or dominated party. Bills v. Lindsay, 909
S.W.2d 434, 440 (Tenn. Ct. App. 1993); see also Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn.
Ct. App. 2002). The routinely recognized presumption is that when a confidential
relationship exists and the dominant party receives a benefit from the other party that the
dominant party used undue influence to obtain the benefit. Richmond v. Christian, 555
S.W.2d 105, 107 (Tenn. 1997); Matlock v. Simpson, 902 S.W.2d 384, 385 (Tenn. 1995);
Hogan v. Cooper, 619 S.W.2d 516, 519-20 (Tenn. 1981).
“Confidential relationships can assume a variety of forms, and thus the courts have
been hesitant to define precisely what a confidential relationship is.” Kelley, 96 S.W.3d at
197 (citing Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App. 1974)).
Confidential relationships generally arise in two situations: (1) “legal relationships” and (2)
“family and other relationships.” Brevard, 213 S.W.3d at 302-03 (quoting Matlock, 902
S.W.2d at 385-86). In the “legal relationships” context, a confidential relationship arises
when there is some legal connection between the dominant party and the weaker party, such
as when a dominant party is granted a power of attorney. Childress v. Currie, 74 S.W.3d
324, 328 (Tenn. 2002). Indeed, “a confidential relationship arises as a matter of law when
an unrestricted power of attorney is granted to the dominant party.” Id. (emphasis added).
In contrast, “[f]amily and other relationships” do not necessarily give rise to a confidential
relationship per se; therefore, to establish a confidential relationship in this situation,
contestants must prove the elements of “domination and control” in order to establish that
the free will of the weaker party was destroyed and that the will of the dominant party was
substituted. Matlock, 902 S.W.2d at 385-86 (emphasis added). “The burden of proof
regarding a confidential relationship rests upon the party claiming the existence of such a
relationship.” Childress, 74 S.W.3d at 328.
The trial court concluded that while the transfers of monetary assets and interest in
real property were obtained through Wife’s marital relationship with Decedent, the transfers
were ultimately valid and fair. In contrast, we believe that Son failed to even establish that
Wife enjoyed a confidential relationship with Decedent. There was no evidence introduced
to establish that Wife enjoyed a fiduciary relationship with Decedent as established through
an unrestricted power of attorney. Thus, her alleged confidential relationship with Decedent
must have arisen out of their marital relationship. Son cites Bratton v. Bratton, 136 S.W.3d
595 (Tenn. 2004) in support of his proposition that all marital relationships give rise to a
confidential relationship. We disagree.
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The language used in Bratton and other similar cases did not establish a bright-line
rule that all parties in a marriage enjoy a confidential relationship as a matter of law. We
acknowledge that in Bratton, the Tennessee Supreme Court stated,
Because of the confidential relationship which exists between a husband and
wife, postnuptial agreements are likewise subjected to close scrutiny by the
courts to ensure that they are fair and equitable.
136 S.W.3d at 601 (citations omitted). The Court set aside the postnuptial agreement at issue
for lack of consideration, noting that parties in a marital relationship do not deal “‘with each
other as strangers at arm’s length.”’ Id. at 601-04. Unlike the postnuptial agreement in
Bratton, the transfers complained of in this case were not accomplished pursuant to a
contract, where Decedent and Wife bartered to construct a mutually agreeable deal. The
transfers in this case were anything but mutually agreeable. Thus, the issue in this case is not
whether there was sufficient consideration to support the transfers but whether Wife had the
ability to exert dominion and control over Decedent and whether she used that ability to
unduly influence Decedent’s purportedly benevolent gestures. While the relationship
between Wife and Decedent should be closely scrutinized, the burden remained upon Son
to establish that a confidential relationship existed between Decedent and Wife. Childress,
74 S.W.3d at 328.
Following our review, we defer to the trial court’s credibility determinations in this
case on this issue. Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498,
502 (Tenn. Ct. App. 2000) (“Unlike this [c]ourt, the trial court observed the manner and
demeanor of the witnesses and was in the best position to evaluate their credibility.”). The
only credible evidence offered to establish Wife’s control of Decedent consisted of the fact
that Wife drove Decedent and may have assisted him in filling out forms and signing his
name. The testimony reflected that Decedent remained strong willed and in control of his
finances throughout the entirety of his life. A number of credible witnesses testified that
Decedent also appeared knowledgeable and did not appear to be acting pursuant to Wife’s
direction. Likewise, the court found that Wife “did not have the ability to influence him[,]
manipulate the investments, or take money out of any investments.” The evidence simply
did not establish that Wife possessed the type of confidential relationship that would have
allowed her to exercise dominion and control over Decedent. While we sympathize with
Son’s loss of any form of inheritance from Decedent, the record reflects that Decedent simply
chose to provide for Wife in the event that he predeceased her. Testimony introduced at trial
established that Decedent and Wife enjoyed a loving, 17-year marriage prior to his death.
Despite Son’s loss, we cannot fault Decedent for ensuring that Wife was provided for after
his death. Accordingly, we affirm the judgment of the trial court. See City of Brentwood v.
Metro. of Zoning Appeals, 149 S.W.3d 49, 60 n. 18 (Tenn. Ct. App. 2004) (“The Court of
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Appeals may affirm a judgment on different grounds than those relied on by the trial court
when the trial court reached the correct result.”).
Having affirmed the trial court’s judgment, we must acknowledge the fact that several
documents that were not considered by the trial court were appended to Son’s appellate brief
and submitted for our review on appeal. Likewise, Wife complains that Son highlighted
deposition testimony in his appellate brief that was never submitted to the trial court for
consideration as evidence. Son asserts that the challenged deposition testimony was included
in his closing argument. Closing arguments are not evidence and cannot be considered as
evidence. Wilson v. Americare Sys. Inc., No. M2008-00419-COA-R3-CV, 2009 WL 890870,
at *6 (Tenn. Ct. App. Mar. 31, 2009). Additionally, parties may not “add to or subtract from
the record except insofar as may be necessary to convey a fair, accurate and complete
account of what transpired in the trial court with respect to those issues that are the bases of
appeal.” Tenn. R. App. P. 24(g). While some of the challenged documents arguably added
clarification to the issues on appeal, these documents should not have been included in the
appellate brief as if they had been admitted by and considered by the trial court.
V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Edwin
Lester Smith.
______________________________________
JOHN W. McCLARTY, JUDGE
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