Lillian A. Carpenter v. Michael E. Sims ( 2007 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 25, 2007
LILLIAN A. CARPENTER, ET AL. v. MICHAEL E. SIMS, ET AL.
Appeal from the Circuit Court for Cumberland County
No. CV-3686 John Turnbull, Judge
No. E2007-0622-COA-R3-CV - FILED NOVEMBER 7, 2007
Beneficiaries under a will sought to rescind the sale of a condominium in which they asserted an
inheritance interest upon allegations that 1) the consideration paid by the purchasers was so
inadequate as to shock the conscience; 2) the purchasers exerted undue influence over the seller; and
3) the seller was mentally incompetent at the time of the sale. Upon findings that the seller was
mentally competent at the time of sale, that the purchasers did not exert undue influence over her,
and that she had reason to sell the condominium for the amount she did, the trial court ruled that the
sale of the condominium should not be set aside. Upon our determination that the evidence does not
preponderate against the trial court’s conclusions, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Cause
Remanded
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , P.J., and
CHARLES D. SUSANO , JR., J., joined.
Charles G. Taylor III, Knoxville, Tennessee, for the appellants, Lillian A. Carpenter, Sarah P.
Carpenter, Charles C. Carpenter, and Alma Bain Davis.
Harry D. Sabine, Crossville, Tennessee, for the appellees, Michael E. Sims and Linda S. Sims.
OPINION
I. Background
During June of 1994, Michael E. Sims and his wife, Linda S. Sims, residents of Ohio, were
vacationing in a rental house in the Fairfield Glade subdivision of Crossville, Tennessee. The
Simses were interested in purchasing a home in Fairfield Glade and observed a “for sale” sign in the
window of a condominium unit in the neighborhood. The condominium was owned by Mary E.
Henderson, a 77 year old widow, and it had been her residence since she and her husband purchased
it in 1982, although it had been vacant for approximately one year before the Simses discovered that
it was for sale.
Seeking additional information about the condominium, Mrs. Sims called Ms. Henderson
who was residing with friends in Knoxville at the time. Ms. Henderson advised Mrs. Sims that the
condominium was not in very good condition and that she would like to sell it for $5,500. She told
Ms. Sims that she would be glad to show the Simses the condominium, but that she did not want to
drive to Crossville alone and asked if they would mind picking her up. The Simses agreed to do so,
and during the drive to Crossville, Ms. Henderson commented that the condominium was “in pretty
bad condition,” that “there were a lot of things that needed to be done,” and that “she hated it” and
“was never coming back.” She also indicated that she had listed the condominium with a realtor,
but that “nobody was interested in it” and that she was “tired of making maintenance fee payments”
on it.
Upon their arrival at Fairfield Glade, Ms. Henderson unlocked the door to the condominium,
and she and the Simses went inside. Mr. Sims’s undisputed testimony regarding the condition of the
condominium when they entered was as follows:
Q. Describe the condo when you got there, its condition.
A. It was very bad. When we opened the door, the smell just about
knocked us over.
Q. What kind of a smell?
A. Musty, moldy, mildew smell, mixed with that of decaying animals.
[Ms. Henderson] had left some Decon mouse or rat poison. And
there were a number of little animals that had died in the apartment,
the skeletons of the little animals. I don’t know if they were
chipmunks or mice or various sizes. So the smell from those.
At some point, the water heater had broken and had flooded the
downstairs. She didn’t say. I don’t have any idea how long the water
ran out onto the floor, but the whole downstairs had been flooded.
The bottoms of the door casings were rotted and showed water
damage. The carpet was so dark from mildew you could hardly see
what color it was. There was mold and mildew growing up the walls
four or five feet.
Well, we subsequently found out that the bathtub leaked into the
living room. The bathtub upstairs leaked down into the dining room.
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When we first turned on the light in the dining area, I should say, the
light was a ceiling fixture and it threw off sparks and smoked and
everything like that, so we immediately turned it back off. Like I say
there was just mold and mildew everywhere.
The carpet she said and it looked to be original from when they were
built in the early 70’s. There were stains in the ceiling where
apparently the roof had leaked. And the one area in the back
bedroom, the ceiling was crumbling. And that part of the ceiling
butts up against the firewall. Between every other unit, there’s a
stone or a block firewall. And the blocks at the top where the ceiling
met were rotting away or crumbling.
The sinks were all, the porcelain was chipping out of them. The sinks
were rusted.
...
[T]he water heater had broken and it had flooded all over and they
had turned off the water to it to keep it from, you know, flooding all
over. But no attempt had ever been made, apparently to clean it up,
because of all the mildew and the water damage that was apparent at
the bottom of the baseboards and the bottom of the door casings and
along the bottom of the paneling.
Mrs. Sims’s testimony corroborated that of her husband:
[W]hen [Ms. Henderson] went in, she kicked . . . it was a dead
chipmunk or a mouse or something out of the way.
...
[Mrs. Henderson] had packed her stuff in boxes. And it was obvious
that water had come up, because they were all molded and falling
apart. Cardboard boxes were just stacked everywhere. And there was
this black, dirty mold on everything. And the smell was bad and there
was holes in the wall. There was . . . It’s undescribable. I mean, I
had no interest in it at that point.
And [Ms. Henderson] was kind of telling us, “Well, we don’t have
any water, because the water heater busted. And all of this is because
the water heater busted.” She said, “So I had them turn off the
water.”
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Well, there wasn’t any water in there, but you could see where the
water had come up on the boxes and stuff. So I don’t know how long
the water heater had been busted or anything about it, but there was
no water. And it was real dark.
And I flipped on the light. There was a light switch on the wall. And
when I did, just sparks and smoke flew from the ceiling light fixture
thing. . . . I mean it was just . . . it was really, really bad. You
couldn’t stay in there very long.
...
And we went upstairs and there was a big mold spot on the ceiling up
there. And behind the paneling, the actual block had had so much
water come in that it was deteriorating. And again, there was just
stuff stacked everywhere. The smell was really bad.
Both Mr. and Mrs. Sims testified that they were hesitant about purchasing the condominium
because of its condition, but that, according to Mr. Sims, “we decided that we had more time than
money. And you know, we could fix the things that were wrong with it slowly over time and not
have to worry about the financing or whatever.” Accordingly, after some further discussion, the
Simses advised Ms. Henderson that they would accept her offer of sale.
An appointment was made with attorney Jim Thompson for the preparation of documents
prerequisite to closing, and two days later, the Simses drove Ms. Henderson to Mr. Thompson’s
office where his staff prepared a deed and contract for sale of the condominium and agreed to
conduct a title search on behalf of the Simses. Four days thereafter, on completion of the title search,
Ms. Henderson and the Simses returned to Mr. Thompson’s office, and the sale was closed.
Afterwards, the Simses drove Ms. Henderson to her bank where she purchased a certificate of
deposit with the sale proceeds.
In November of 1994, a complaint was filed in the Cumberland County Chancery Court by
Lyn T. Hart as next friend of Ms. Henderson to rescind the contract for sale of the condominium to
the Simses; however, this action was voluntarily dismissed without prejudice by order entered May
5, 2000. On June 13, 2002, and subsequent to the death of Ms. Henderson on November 17, 1996,
suit to rescind the contract was filed in the Cumberland County Circuit Court by Ms. Henderson’s
sister, Helen Goans, as Ms. Henderson’s sole heir. Among other things, this complaint alleged that
following the death of her husband, Ms. Henderson “maintained the condominium in excellent
condition and in June of 1994, it had a fair market value of between $40,000.00 and $50,000.00.”
The complaint further alleged that Ms. Henderson “lacked sufficient mental capacity” to execute the
documents conveying the condominium to the Simses because she was suffering from advanced
Alzheimer’s disease at the time and that the Simses “were aware of Ms. Henderson’s mental
incapacity and used undue influence to induce her to sign the documents.” Finally, the complaint
alleged that “the $5,500.00 consideration paid by [the Simses] to Ms. Henderson represents only
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approximately one tenth the fair market value of the condominium” and “[s]uch an amount is so
grossly inadequate and unconscionable that it makes the contract and deed void ab initio.”
Before the case was tried, Ms. Goans died, and by order of the court entered August 2, 2006,
Charles C. Carpenter, Alma Bain Davis, Lilian A. Carpenter, and Sarah P. Carpenter1 were
substituted as parties plaintiff.
The case came on for non-jury trial on February 6, 2007, after which, on February 22, 2007,
the trial court entered its final order in favor of the Simses upon its finding that Ms. Henderson was
competent when she sold the condominium and understood what she was doing, and that she had
her reasons for selling the condominium for $5,500. This appeal followed.
II. Issue
The sole issue we address is whether the trial court erred in failing to rescind the sale of the
condominium to the Simses because of a preponderance of evidence showing 1) that the
consideration paid by the Simses was so inadequate as to shock the conscience, 2) that the Simses
exerted undue influence over Ms. Henderson, or 3) that Ms. Henderson was mentally incompetent
at the time of sale.
III. Analysis
A. Standard of Review
This is a non-jury case and, accordingly, our review is de novo upon the record of the trial
court without any presumption of correctness attaching to the trial court’s conclusions of law.
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996) and Tenn. R. App. P. 13(d). We
must, however, presume the trial court’s factual findings to be correct absent evidence
preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993). “On an issue which hinges on the credibility of witnesses, the trial court will not be reversed
unless there is found in the record clear, concrete, and convincing evidence other than the oral
testimony of witnesses which contradict the trial court’s findings.” Galbreath v. Harris, 811 S.W.2d
88, 91 (Tenn. Ct. App. 1990)(citing Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490
(Tenn. Ct. App. 1974)).
B. Adequacy of Consideration
First, the appellants argue that the conveyance of the condominium should be set aside upon
the ground that the consideration paid by the Simses was grossly inadequate. In support, the
appellants assert that it is clear from the record that the condominium was worth many times the
1
Charles Carpenter attested that these four individuals are beneficiaries under Helen Goans’s will and thereby assert
claims to any interest Ms. Goins might have had in the condominium.
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$5,500 paid by the Simses, referencing evidence that 1) the condominium was purchased by Ms.
Henderson and her husband in 1982 for $38,000; 2) the year before the sale, the condominium was
appraised for tax purposes at $36,500; 3) the parties stipulated that, in 1994, condominiums at
Fairfield Glade had a fair market value of between $20,000 to $42,500; and 4) fifteen years before
the sale, Mrs. Sims paid $6,000 for an unimproved lot at Fairfield Glade. As supporting authority,
the appellants cite Stephens v. Ozbourne, 64 S.W. 902 (Tenn. 1901) wherein the Tennessee
Supreme Court noted that even in the absence of other circumstances, avoidance of a contract by
rescission will be warranted “when the inadequacy of price is so gross that it shocks the conscience.”
The appellants contend that the evidence preponderates to the conclusion that the consideration paid
by the Simses was so inadequate as to shock the conscience and compels rescission. We disagree.
In order to carry their burden of proof that the consideration paid for the condominium was
grossly inadequate, the appellants were necessarily obliged to establish the condominium’s fair
market value at the time of sale. They did not do so. As to the appellants’ attempt to establish fair
market value by introducing the property’s tax appraisal value, in Tennessee and elsewhere “[i]t is
the overwhelming weight of authority that assessed value is not competent direct evidence of value
for purposes other than taxation.” C.C. Marvel, Annotation, Valuation For Taxation Purposes to
Show Value for Other Purposes, 39 A.L.R. 2d 209 (1955); see also Knoxville Community
Development Corp. v. Bailey, No. E2004-10659-COA-R3-CV, 2005 WL 1457750, (Tenn. Ct. App.
W.S., filed Feb. 18, 2005); Union Joint Stock Land Bank of Louisville v. Knox County, et al., 97
S.W.2d 842 (Tenn. Ct. App. 1936). Furthermore, we have cited the Simses’ uncontradicted
testimony regarding the deplorable condition of the condominium at the time of sale, and it stands
to reason that any evidence of fair market value that disregarded the deterioration the condominium
suffered during the year preceding the sale would not have been competent to establish the fair
market value of the condominium at the time of sale. The appellants introduced absolutely no
evidence as to the fair market value of the condominium based upon its condition at the time of sale.
In its memorandum opinion, the trial court correctly noted that neither the stipulation that other
condominiums in the neighborhood were selling for between $20,000 and $42,000 nor the tax
appraisal of $36,500 were based upon “the individual attributes of this particular apartment.” As the
trial court queried “[H]ow in the world can you tell what something is worth if you don’t go inside
of it?” Further, even if it were conceded that the consideration $5,500 paid by the Simses was
inadequate, absent proof that it was grossly inadequate, the conveyance must stand undisturbed. As
we recently restated in In re Estate of Reynolds, No. W2006-01076-COA-R3-CV, 2007 WL
2597623, at *14 (Tenn. Ct. App. W.S., filed Sept. 11, 2007):
[W]here the parties contract with knowledge of what they are doing,
inadequacy of consideration is no ground for avoiding a contract.
Farrell v. Third Nat’l Bank, 20 Tenn. App. 540, 101 S.W.2d 158,
163 (1936). Courts are not at liberty to annul or change or amend a
contract entered into by parties capable of contracting simply upon
the ground that the judges may be of the opinion that a better
agreement would or should have been arrived at. Matthews v.
Matthews, 24 Tenn. App. 580, 148 S.W.2d 3, 13 (1940).
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The record indicates that Ms. Henderson was intent on selling the condominium as soon as
possible and had priced it to accomplish that goal. Attorney Jim Thompson’s employees, Jean
Brown and Pam Dearmon, both questioned Ms. Henderson about the sales price of $5,500 and
testified that Ms. Henderson told them that her husband was dead and that she was tired of paying
dues on the condominium and she “just wanted rid of it.” Mr. Sims also testified that Ms. Henderson
told him that even though she had not been living in the condominium for a year, “she continued to
pay the maintenance fees and the electric, things like this, the insurance, property taxes. And she
was on a fixed income and she just wanted to be out from under the burden of all these extra
expenses. They came to about three hundred dollars a month.” Mrs. Sims similarly testified that
Ms. Henderson told her that “[s]he was tired of making payments on something she was never
coming back to. And she told me, she said, ‘This place is just rotting down.’ She said, ‘It just gets
worse and worse and worse.’”
We are compelled to conclude that there was a failure of proof that the consideration paid
by the Simses was so grossly inadequate as to shock the conscience, and we find no merit in the
appellants’ argument to the contrary.
C. Undue Influence
Next, the appellants argue that the conveyance of the condominium should be rescinded upon
the ground that the Simses exerted undue influence over Ms. Henderson.
“The doctrine of undue influence applies when one party, such as a grantee, is in a position
to exercise undue influence over the mind and the will of another, such as a grantor, due to the
existence of a confidential relationship.” Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App.
1983). As we noted in Reynolds supra, “the courts have never clearly defined what a confidential
relationship is. In general terms, it is any relationship which gives one party dominion or influence
over the other.” Id. at 269 (citations omitted). In Kelly v. Allen, 558 S.W.2d 845 (Tenn. 1977), the
Tennessee Supreme Court further stated that before a conveyance will be set aside upon grounds of
undue influence,
there must be a showing that there were present the elements of
dominion and control by the stronger over the weaker, or there must
be a showing of senility or physical and mental deterioration of the
donor or that fraud or duress was involved, or other conditions which
would tend to establish that the free agency of the donor was
destroyed and the will of the donee was substituted therefor.
Id. at 848 (emphasis added). “[T]he question to be answered is not whether the weaker party’s
decision was a good one, or even whether he knew what he was doing at the time. In these cases,
the courts must determine whether the weaker party’s decision was a free and independent one or
whether it was induced by the dominant party.” Williamson v. Upchurch, 768 S.W.2d 265, 270
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(Tenn. Ct. App. 1988).
The appellants contend that in order to exert influence over Ms. Henderson, the Simses
intentionally established a confidential relationship with Ms. Henderson by various means, including
the following:
On the first occasion when they met her, Mr. Sims told Ms.
Henderson that he had once been a deputy sheriff in order to gain her
trust. Later, while waiting for the closing to occur, the defendants
tried to prevent Ms. Henderson from changing her mind regarding the
sale by monopolizing her time. Even though there was no need to see
her again prior to closing, the defendants nevertheless made an effort
to visit and spend time with Ms. Henderson practically every day.
During that period, they took her out to eat numerous times. They
helped her move items into storage and took her to the bank and to
the grocery store.
The appellants do not, and reasonably cannot, contend that the sales price of $5,500 was the
result of undue influence by the Simses, as the only evidence presented regarding establishment of
the sale price shows that such price was originally proposed by Ms. Henderson upon first being
telephoned by Mrs. Sims, at which time Ms. Henderson had not yet met the Simses and knew
nothing about them. Rather, it appears that the appellants argue that but for the alleged undue
influence of the Simses between the time of their initial meeting with Ms. Henderson and closing
of the sale six days later, Ms. Henderson would have changed her mind and that she would have
either increased the asking price or decided not to sell. We do not agree that the evidence
preponderates to this conclusion.
The referenced actions of the Simses alone do not mandate the conclusion that they were
prompted by the ulterior motive of preventing Ms. Henderson from changing her mind regarding the
terms of the sale. The Simses presented testimony that they did, in fact, have other reasons for their
actions. Mr. Sims attested that when he and his wife met Mrs. Henderson to drive her to the
condominium, he showed her his deputy sheriff identification card “to ease her mind that we weren’t
some stalkers or something like that that was going to spirit her away and do her ill.” Mr. Sims
further explained the reason he and his wife subsequently spent additional time with Ms. Henderson
as follows:
She was simply a lonely little old lady. And my wife is very kind
hearted. And well, I tend to be a little bit myself, but not nearly much
though as she. And I felt sorry for her. She didn’t have any family
around, according to what she said. She said she had some
stepchildren, but she hadn’t seen them in a number of years. She said
didn’t get along with her sister. She said she had no other relatives.
And we felt sorry for her, so we were just trying to make her feel
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good.
The record also shows that some of the Simses’ actions that the appellants argue were
calculated to sway Ms. Henderson from changing her mind regarding the sale actually did not occur
until after the sale was closed. This belies the appellants’ undue influence argument and is
consistent with the Simses’ assertion that they were simply motivated by good will. In this regard,
we note the following testimony of Mr. Sims upon cross-examination:
Q. And in fact, after you closed the transactions and she signed the
deed, you actually helped her take what was left of her furniture and
move it out and put it in a storage area. Right?
A. Yes. There was quite a bit of it.
...
Q. After she signed the deed, then you took her to the First National
Bank in Crossville so that she could take that fifty-five hundred
dollars and buy a certificate of deposit. Right?
A. That was her desire, yes, sir.
...
Q. How long did you continue to see Mrs. Henderson after you
purchased her condo?
A. One to two weeks, I would guess.
Q. Did you continue to take her out to eat a lot?
A. We did several times, yes, sir.
...
Q. You would agree, would you not, that during this period she was
very dependent upon you and your family?
A. I wouldn’t say necessarily dependent. We developed a friendship.
No more so than any friend would be dependent on another. We
helped her get around.
(Emphasis added).
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Ms. Sims further testified that she did not become friends with Ms. Henderson “until after
this was all over and done with. After the final papers were signed, that’s when I became close to
her.” Obviously, once the deal was closed, the Simses had no reason to exert influence over Ms.
Henderson regarding the terms of sale. The appellants have presented no evidence that Ms.
Henderson’s “free agency was destroyed” and that the will of the Simses “was substituted therefor.”
Based upon the record presented, we find no merit in the appellants’ argument that the sale should
have been rescinded because of undue influence by the Simses.
D. Mental Incompetence
Finally, the appellants contend that the conveyance of the condominium should have been
rescinded upon the ground that Ms. Henderson was mentally incompetent at the time of the sale.
It is well-settled in Tennessee and elsewhere that a conveyance is deemed invalid upon
satisfactory proof that the grantor did not have the mental capacity to understand what he or she was
doing at the time of contract. “In order for a deed to be valid, it must be the conscious, voluntary act
of the grantor and a deed executed when the grantor is mentally unbalanced, when he has no
intelligent comprehension of the act being performed and when he is incapable of transacting is
void.” Brown v. Weik, 725 S.W.2d 938, 944 (Tenn. Ct. App. 1983)(citing Hinton v. Robinson, 364
S.W.2d 97, 100 (Tenn. Ct. App. 1962)). In a later opinion of this Court, Rawlings v. John Hancock
Mut. Life Ins. Co., 78 S.W.3d 291 (Tenn. Ct. App. 2001), we elaborated on this subject as follows:
Competency to contract does not require an ability to act with
judgment and discretion. All that is required is that the contracting
party reasonably knew and understood the nature, extent, character,
and effect of the transaction. Thus, persons will be excused from
their contractual obligations on the ground of incompetency only
when (1) they are unable to understand in a reasonable manner the
nature and consequences of the transaction or (2) when they are
unable to act in a reasonable manner in relation to the transaction, and
the other party has reason to know of their condition. Restatement
(Second) of Contracts § 15(1) (1981).
All adults are presumed to be competent enough to enter into
contracts. Accordingly, persons seeking to invalidate a contract for
mental incapacity have the burden of proving that one or both of the
contracting parties were mentally incompetent when the contract was
formed. It is not enough to prove that a person was depressed or had
senile dementia. To prove mental incapacity, the person with the
burden of proof must establish, in light of all the surrounding facts
and circumstances, that the cognitive impairment or disease rendered
the contracting party incompetent to engage in the transaction at issue
according to the standards set forth above.
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Id. at 297 (citations omitted).
The appellants maintain that the evidence presented at trial proved that Ms. Henderson
experienced “a steady and progressive loss of mental capacity” due to the fact that she was suffering
from Alzheimer’s disease and necessitates the conclusion that on the day she signed the deed to the
condominium, she lacked the mental capacity to understand what she was doing and the
consequences of her action. We disagree.
In support of their allegations that Ms. Henderson was suffering from Alzheimer’s disease
when she conveyed the condominium to the Simses, the appellants rely on the testimony of James
Joseph Kennedy, M.D., a psychiatrist who first saw Ms. Henderson in April and May of 1996 and
attested that at that time, he determined that she probably had Alzheimer’s disease or primary
dementia of the Alzheimer’s type and had suffered from the disease for four to five years. However,
upon cross-examination, Dr. Kennedy conceded that he had not examined Ms. Henderson at the time
of the transaction with the Simses and did not know what her condition was at that time. Dr.
Kennedy also admitted that it is possible that Ms. Henderson was able to manage her affairs in 1994
and indicated that the rate at which Alzheimer’s progresses varies from person to person, stating
“[e]verybody is different” in that regard. The appellants also aver to a medical report prepared by
Dr. Arlene J. Donowitz in early January of 1994 when Ms. Henderson was admitted to Parkridge
Hospital for pneumonia and note that the report describes Ms. Henderson as “slightly demented.”
However, in deposition testimony Ms. Goans, who was with Ms. Henderson at the time this
examination, stated that Dr. Donowitz said that Ms. Henderson was “a little bit hazy,” but that she
“didn’t know if it was her temperature or if there was a problem.” The appellants also submitted
a medical report prepared by Dr. Marye Lois McCroskey in September of 1994 stating that Ms.
Henderson exhibited memory lapses and “lacked the comprehensive reasoning of other persons her
age” and that a conservator should be appointed to make decisions concerning “her long-term health
care and probably financial care.” However, this report does not prove Ms. Henderson’s mental
capacity at the time of contract, nor does it show that she did not understand the nature and
consequences of her sale of the condominium to the Simses. Moreover, the report specifically states
that at the time of the report, Ms. Henderson was able to “focus on the present.”
Even if Ms. Henderson suffered from some degree of dementia at the time she sold the
condominium to the Simses, it does not follow from that fact alone that she did not have the mental
capacity to engage in such transaction. As we noted in Rawlings, in establishing incompetence to
contract, it is not enough to show that a person has senile dementia, but it must be shown that such
person was not able to understand the consequences of his or her actions. Other evidence presented
at trial supported the trial court’s determination that Ms. Henderson was mentally competent to
convey her condominium to the Simses in June of 1994. Mr. Sims testified that Ms. Henderson was
“a very sharp lady,” and he noted that when he observed her writing a check “she would immediately
write it down, what the check was for and subtract it out and, you know, balance her checkbook right
there.” Ms. Sims testified that Ms. Henderson was “a very smart lady” and that nothing Ms.
Henderson said or did raised any doubt as to her competence. Attorney Jim Thompson’s legal
secretary, Barbara Jena Brown, testified that, in accord with Mr. Thompson’s office policy, she has
11
turned people away when it appears that they are not competent. Ms. Brown attested that when Ms.
Henderson and the Simses came to the office, Ms. Henderson had brought tax cards pertaining to
the condominium, that she spoke with Ms. Henderson for several minutes about the terms of the sale
and that in her opinion, Ms. Henderson was competent and that “it never entered [her] mind that
there was any problem.” Mr. Thompson’s other employee, Pam Dearmon, also sat down and spoke
with Ms. Henderson and attested that Ms. Henderson gave her no reason to question her competence.
Even Ms. Goans testified that on “some days [Ms. Henderson] would be more with it than other
days” and admitted that she could not say whether Ms. Henderson would have been “with it” when
she elected to continue with the sale of her condominium.
Upon careful review of the entire record in this case, it is our determination that the evidence
does not preponderate against the trial court’s decision that Ms. Henderson was competent when she
sold her condominium to the Simses.
E. Standing
We acknowledge the Simses’ argument that the appellants did not have standing in this case;
however, in light of our decision herein, we need not address that issue.
IV. Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are
assessed to the appellants, Lillian A. Carpenter, Sarah P. Carpenter, Charles C. Carpenter, and Alma
Bain Davis.
_________________________________________
SHARON G. LEE, JUDGE
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