Elizabeth Kerr v. Lydia Henderson ( 2020 )

09/28/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 23, 2020 Session
ELIZABETH KERR ET AL. v. LYDIA HENDERSON ET AL.
Appeal from the Chancery Court for Johnson County
No. 7226 John C. Rambo, Chancellor
No. E2020-00112-COA-R3-CV
In this case involving the inheritance of an investment account, the three plaintiffs filed a
complaint in September 2016, asserting, inter alia, that a letter executed by their father
prior to his 2007 death had operated to create an express trust concerning the account, for
which their stepmother had acted as trustee with the understanding that the plaintiffs were
to be the beneficiaries of the account after her death. The plaintiffs alternatively sought
imposition of a constructive trust. The plaintiffs’ stepmother, who is the subject decedent
in this action, had died in April 2016. The plaintiffs initially named as defendants the co-
executors of the decedent’s estate, as well as the financial institution holding the
investment account. The trial court subsequently entered agreed orders to dismiss the
financial institution as a party and to substitute as defendants the decedent’s three adult
children from a previous marriage. Upon competing motions for summary judgment and
following a hearing, the trial court granted summary judgment in favor of the plaintiffs,
finding that an express trust had been created by the writings of the plaintiffs’ father and
that, alternatively, a constructive trust should be imposed based on the combined writings
and actions of the plaintiffs’ father and the decedent. The defendants filed a motion to
alter or amend the judgment, which the trial court denied following a hearing upon
finding in part that new evidence submitted by the defendants should not be considered.
The defendants have appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Mark W. McFall, Johnson City, Tennessee, for the appellants, Lydia Henderson, Scott
Douglas, and Benjamin Douglas.
Andrew T. Wampler and John R. Graham, Kingsport, Tennessee, for the appellees,
Elizabeth Kerr, Victoria McCoy, and Angela Sturdivant.
OPINION
I. Factual and Procedural Background
The plaintiffs, Elizabeth Kerr, Victoria McCoy, and Angela Sturdivant
(collectively, “Plaintiffs”), initiated this action by filing a complaint on September 30,
2016, seeking declaratory judgment in the Johnson County Chancery Court (“trial court”)
that the writings and actions of their father, Edwin Robinson Sturdivant, and stepmother,
Mary Foote Sturdivant (“Decedent”), had operated to create an express trust related to an
investment account with Raymond James Financial, Inc. (“the Account”). Plaintiffs
alternatively asked the trial court to impose a constructive trust. Plaintiffs originally
named as defendants Raymond James Financial, Inc. (“Raymond James”), and the two
co-executors at that time of Decedent’s estate, Jeannie Countiss and Karla Prudhomme
(collectively, “Co-Executors”). The trial court subsequently dismissed Raymond James
from this action without prejudice by agreed order. Upon Co-Executors’ resignation
from representation of Decedent’s estate, the trial court entered an order on May 10,
2019, inter alia, substituting Decedent’s three children, Lydia Henderson, Scott Douglas,
and Benjamin Douglas, as defendants in this matter (collectively, “Defendants”).
A central issue on appeal is whether the trial court erred by finding that evidence
presented by Defendants for the first time with their Tennessee Rule of Civil Procedure
59.04 motion to alter or amend the court’s summary judgment order did not warrant
consideration as newly submitted evidence. At the time of the trial court’s August 2019
summary judgment order, the facts found by the trial court had not been challenged by
any evidence presented prior to the summary judgment hearing. The trial court
specifically found as follows:
Plaintiffs are the adult children of Edwin Sturdivant (“Edwin”).
Edwin married Mary Foote Sturdivant [(“Decedent”)] around 1975.
[Decedent] had three children from her first marriage, Lydia Douglas
Henderson, Scott Douglas, and Ben Douglas.
Sometime before 2000, Edwin opened an investment account with
Raymond James in Memphis, Tennessee (“the Account”). During the
marriage of Edwin and [Decedent], Edwin kept the Account as separate
property in his name alone.
2
As of June of 2000, the Account held various state and municipal
bonds with a face value of approximately One Million Dollars
($1,000,000.00).
Edwin’s Last Will and Testament was dated June 20, 2000. It states,
“I bequeath to Mary Sturdivant [Decedent] one thousand Tennessee bonds
valued in total at face, not market value, at $1 million. She shall have the
right to pick the ones which best fit her needs.” Edwin’s Last Will and
Testament did not mention any of [Decedent’s] natural children.
In March 2004, Edwin wrote a letter to [Decedent] instructing her to
draft her own Last Will and Testament leaving the funds within the
Account, their house located at 430 Cedar Street in Mountain City, and any
additional income from the Account saved by [Decedent] to Edwin’s
natural children with a reference to his grandchildren.
Edwin died on September 12, 2007. On August 22, 2008, an Agreed
Order was entered by the Johnson County Chancery Court, Probate
Division, closing the Estate of Edwin Sturdivant. The August 22, 2008
Agreed Order found in-part that [Decedent] received all of the bonds owned
or held on the date of distribution in partial satisfaction of the bequest made
within Edwin’s Last Will and Testament.
The bonds bequeathed to [Decedent] have been traced and remain in
the Account.
Two months after Edwin died, Plaintiff Elizabeth Kerr received a
letter from [Decedent] stating that [Decedent] had received a statement
from Raymond James and that she would continue to carry a personal
liability umbrella policy to cover the one million dollars in the Account.
On May 13, 2015, Elizabeth Kerr wrote a letter to [Decedent] asking
[Decedent] to designate Edwin’s three natural children as beneficiaries of
the Account to avoid probate. In August of 2015, [Decedent] sent each of
the Plaintiffs a cover letter and a Raymond James Transfer On Death Form
to be completed by the Plaintiffs as beneficiaries of the Account.
The letter from [Decedent] to Elizabeth stated, “Hope this will allay
some of your anxieties.” The letter from [Decedent] to Victoria McCoy
3
stated, “There’s no rush since I’ll be gone for several weeks toward the end
of the month and won’t get this back to them until I get back.”
Plaintiffs each completed and returned Transfer On Death Forms to
[Decedent] around August or September of 2015. Raymond James never
received the Transfer On Death Forms.
Edwin’s 2004 letter is consistent with the written statements made
by [Decedent] to Elizabeth Kerr in 2004, 2007, and 2015; to Victoria
McCoy in 2015; and to Angela Sturdivant in 2015. The 2004 letter and the
actions of Edwin and [Decedent] indicate their mutual desire for the bonds
to transfer to Plaintiffs upon [Decedent’s] death.
All the actions of [Decedent] indicate that it was her intent to hold
the Account for the Plaintiffs.
[Decedent] attempted to comply with the 2004 letter by sending the
Raymond James Transfer On Death Forms. A mistake occurred during the
attempt when the Transfer On Death Forms were lost in the mail or
misplaced.
[Decedent] died testate on April 13, 2016. [Decedent’s] Last Will
and Testament did not mention the Account, Transfer On Death forms, or
name specifically the plaintiffs as beneficiaries or bequeathing this account
to them.
[Decedent’s] Will was probated on April 21, 2016 and her Estate
remains open.
(Paragraph numbering omitted.)
Co-Executors, represented by attorney George T. Wright, filed an answer on
January 6, 2017, asserting as affirmative defenses res judicata relative to the conclusion
of Mr. Sturdivant’s estate and “specific estoppel” as to Ms. Kerr due to her former role as
co-executor of her father’s estate.1 On February 23, 2018, Co-Executors filed a motion
for partial summary judgment, requesting that Decedent’s residence be released from any
1
As the parties have noted on appeal, Ms. Kerr is a licensed attorney and a sitting state appellate court
judge in the state of Texas.
4
claim asserted by Plaintiffs, who had averred in their complaint that the residence was
included in the purported express trust or should be in the constructive trust with the
Account. Upon Plaintiffs’ response stating that they did not contest the release of the
residence, the trial court entered an order granting partial summary judgment to Co-
Executors and releasing the residence from the reach of this action on July 13, 2018.
Following the trial court’s sua sponte placement of this matter on its trial docket
and a subsequent agreed order continuing proceedings, the trial court entered an agreed
scheduling order on November 30, 2018. The court set trial for May 9, 2019; a discovery
deadline of April 1, 2019; and a deadline for dispositive motions of December 31, 2018.
On December 27, 2018, Co-Executors filed a motion for summary judgment, again
arguing that this action was precluded by the administration and closing of Mr.
Sturdivant’s estate. As to the letters attached to Plaintiffs’ complaint and presented as
evidence of a trust, Co-Executors stated in their summary judgment motion: “Assuming
that all of the letters presented are genuine and for the purposes of this Motion admitted,
the same could not and did not act as addendums or codicils to the Will of Edwin
Sturdivant.” Co-Executors attached to their motion probate documents related to Mr.
Sturdivant’s estate, including an August 2008 agreed order entered by the Johnson
County Probate Court (“probate court”) “construing and interpreting” Mr. Sturdivant’s
will; a letter from Decedent to Ms. Kerr that had been attached to Plaintiffs’ complaint;
and a copy of the trial court’s partial summary judgment order concerning the residence.
Plaintiffs filed their motion for summary judgment on December 31, 2018,
asserting that “there is no dispute as to any material fact and the undisputed facts
establish the creation of a trust under Tennessee law so that the funds from an account of
Edwin Sturdivant pass to Plaintiffs.” In addition to the documents noted by the trial court
in its factual findings, which had also been attached to the complaint, Plaintiffs attached
individual affidavits respectively executed by each plaintiff. Plaintiffs also filed a
response to Co-Executors’ motion for summary judgment, arguing, inter alia, that res
judicata, collateral estoppel, and “specific estoppel” as to Ms. Kerr were inapplicable.
On February 14, 2019, Co-Executors filed affidavits executed by Ms. Henderson
and Mary Sturdivant’s friend and former housekeeper, Sylvia Denise Pennington, in
support of their motion for summary judgment. Plaintiffs subsequently filed a motion to
strike these affidavits as untimely, as well as a response to Co-Executors’ summary
judgment motion. Co-Executors and Plaintiffs then filed cross-replies.
The trial court conducted a hearing on March 8, 2019, concerning the summary
judgment motions and a companion motion for substitution of parties in the probate
action for Decedent’s estate. Following the hearing, Co-Executors filed an amended
5
motion for summary judgment on March 25, 2019, restating their statement of undisputed
material facts. On May 6, 2019, Plaintiffs filed an amended statement of undisputed
material facts. On the same day, Defendants, acting through attorney Laurel Farrell,2
filed a motion to strike Plaintiffs’ entire amended statement of undisputed facts, asserting
that the statement was precluded by the dead man’s statute, pursuant to Tennessee Code
Annotated § 24-1-203, because it “contain[ed] statements regarding transactions with two
decedents, namely, Mary Foote Sturdivant and Edwin Sturdivant.”3 Plaintiffs filed a
response objecting to the motion to strike, asserting in part that Defendants had waived
the dead man’s statute by presenting affidavits that purported to convey statements made
by Decedent.
In its May 10, 2019 order approving the substitution of Defendants as the real
parties in interest in place of Co-Executors, the court also noted its approval in the
probate case of Scott Douglas as the executor of Decedent’s estate.4 The court also, inter
alia, granted a motion that had been filed by Co-Executors to admit their response to a
request for admissions and accordingly allowed Plaintiffs additional time to file an
amended motion for summary judgment. The court noted that attorney Farrell had
entered an appearance to represent Defendants in this action and to represent Scott
Douglas as the executor of Decedent’s estate in the probate court.
Following a hearing conducted on July 26, 2019, the trial court entered its order
granting summary judgment in favor of Plaintiffs on August 19, 2019. The court stated
the following findings and conclusions of law in pertinent part:
2
The motion to strike indicates that it was filed by “Defendants” but does not clarify that it was filed by
Decedent’s children, whom the trial court had undisputedly approved as substituted defendants in place of
Co-Executors during the March 8, 2019 hearing. We note that the motion included a certificate of service
to Co-Executors through their counsel, Mr. Wright.
3
Tennessee Code Annotated § 24-1-203 (2017), commonly known as the “dead man’s statute,” provides:
In actions or proceedings by or against executors, administrators, or guardians, in which
judgments may be rendered for or against them, neither party shall be allowed to testify
against the other as to any transaction with or statement by the testator, intestate, or ward,
unless called to testify thereto by the opposite party. If a corporation is a party, this
disqualification shall extend to its officers of every grade and its directors.
See Holliman v. McGrew, 343 S.W.3d 68, 72 (Tenn. Ct. App. 2009).
4
Because Scott Douglas and Benjamin Douglas share the same surname, we will refer to them throughout
this opinion by their first and last names. No disrespect is intended.
6
An express trust was created by Edwin [Sturdivant’s] Last Will and
Testament together with Edwin’s 2004 letter, and the corpus of the express
trust were the funds within the Raymond James Account. The Plaintiffs
have sufficiently established that the grantor, Edwin, intended to create a
trust through his writings. The Plaintiffs have also established that
[Decedent] served as trustee, and accepted these obligations through her
writings. Finally, the Plaintiffs have shown that the corpus of the trust,
being the Raymond James Account, and the beneficiaries of the trust, being
Edwin’s natural children, were each sufficiently established by Edwin’s
writings.
In addition and in the alternative, a constructive trust was created by
Edwin and [Decedent’s] actions and writings regarding the Account. This
constructive trust was consistent with Edwin’s Last Will and Testament.
Through their actions and writings, both Edwin and [Decedent] indicated
their mutual desire for the Account to transfer to the Plaintiffs upon
[Decedent’s] death. All the actions of [Decedent] indicated that it was her
intent to hold the Account property for Plaintiffs. Though the Transfer On
Death Forms were not received by Raymond James, [Decedent]
substantially complied with requirements to change the beneficiary of the
Account by sending the forms, receiving executed forms, and following up
with the Plaintiffs asking them to send the necessary information for that
purpose. [Decedent] was fully attempting to comply with Edwin’s 2004
letter and there was a mistake in that the Transfer On Death forms were lost
or misplaced. Equity therefore requires that a constructive trust be created.
Defendants have waived the dead man’s statute by their prior filings
regarding [Decedent’s] statements. Regardless of the waiver, the Court is
not relying on Edwin or [Decedent’s] oral statements in making its Rulings.
The Court is relying on Edwin and [Decedent’s] writings, which are
undisputed statements, and on [Decedent’s] actions. The dead man’s
statute is narrowly construed and the reliability and authenticity of the
submitted letters written by Edwin and [Decedent] are not in question. The
dead man’s statute does not operate to exclude the material facts in this
matter.
(Paragraph numbering omitted.)
Defendants, now represented by their current counsel, timely filed a Tennessee
Rule of Civil Procedure 59.04 motion to alter or amend the judgment, attaching multiple
7
exhibits and asserting, inter alia, that they were presenting “newly offered evidence,”
including, inter alia, a forensic document examiner’s report and several affidavits. In this
motion, Defendants for the first time questioned the authenticity of the letters written by
Decedent concerning transfer-on-death forms, for which the trial court had found “the
reliability and authenticity” to be “not in question.” Defendants also argued that the trial
court had erred by failing to address Defendants’ theories of res judicata and collateral
estoppel and by relying on two appellate decisions. Plaintiffs filed a response objecting
to the motion to alter or amend and a motion to strike what they asserted were
inadmissible portions of the affidavits submitted by Defendants.
Following a hearing conducted on December 10, 2019, the trial court entered an
order on December 27, 2019, denying Defendants’ motion to alter or amend upon
determining that Defendants’ supplemental evidence should not be considered, that no
change in the law warranted alteration of the judgment, and that the judgment was not
precluded by res judicata or collateral estoppel. The trial court also denied Plaintiffs’
motion to strike portions of Defendants’ affidavits upon finding the motion to be moot.
Defendants timely appealed. The trial court subsequently entered an agreed order
allowing a Raymond James representative to invest the Account funds in ninety-day
treasury bills on a rolling basis pending resolution of this appeal.
II. Issues Presented
On appeal, Defendants have presented nine issues in their statement of the issues
but have subdivided their argument into only four sections, two of which address the
standard for considering newly offered evidence submitted in conjunction with a
Tennessee Rule of Civil Procedure 59.04 motion to alter or amend. These sections mirror
approximately the arguments posited by Defendants in their Rule 59.04 motion. In their
responsive brief on appeal, Plaintiffs note that Defendants have referenced solely the
discretionary standard of review applicable to a Rule 59.04 motion and assert that
Defendants have framed their appellate argument under the overarching issue of whether
the trial court erred in denying the Rule 59.04 motion without properly raising any
additional issues related to the grant of summary judgment. Upon careful review, we
agree with Plaintiffs on this point.5 Below, we have restated and reordered the issues
raised by Defendants to categorize sub-issues within the applicable issues raised in
Defendants’ Rule 59.04 motion and argued in the argument section of their appellate
brief:
5
Defendants did not file a reply brief.
8
Overarching Issue: Whether the trial court erred by denying Defendants’
Tennessee Rule of Civil Procedure 59.04 motion to
alter or amend the judgment.
1. Whether the trial court erred by declining to find that
Plaintiffs’ motion for summary judgment was precluded by
res judicata or collateral estoppel.
2. Whether the trial court erred by declining to consider the
newly offered evidence presented by Defendants in support of
their motion to alter or amend the judgment.
A. Whether the trial court failed to properly consider and
apply the five elements of the analysis under Harris v.
Chern, 33 S.W.3d 741 (Tenn. 2000), for newly offered
evidence in support of a motion to alter or amend the
judgment.
B. Whether the trial court erred by finding that the newly
offered evidence submitted by Defendants was not
new evidence and was reasonably available prior to the
summary judgment hearing.
C. Whether the trial court erred by finding unsatisfactory
the Defendants’ explanations as to why the newly
offered evidence could not have been produced earlier.
D. Whether the trial court erred by finding that
Defendants did not act with due diligence in presenting
the newly offered evidence.
3. Whether the trial court’s reliance on Ellis v. Ellis, 1990 WL
19684 (Tenn. Ct. App. Mar. 6, 1990), and Brunson v.
Gladish, 125 S.W.2d 144 (Tenn. 1939), was misplaced in
ruling that an express trust was created in its order granting
summary judgment in favor of Plaintiffs.
Defendants also raise a general issue stated as, “Whether the trial court erred in
finding that there was no error in its Order Granting Plaintiffs’ Motion for Summary
Judgment that would justify altering or amending the Judgment.” However, as noted
9
above, Defendants cite solely the discretionary standard of review applicable to a grant or
denial of a Rule 59.04 motion and do not address the standard of review applicable to a
Tennessee Rule of Civil Procedure 56 grant of summary judgment. Defendants also
confine their argument concerning the trial court’s finding of an express trust to the issues
raised in their Rule 59.04 motion regarding the trial court’s reliance on Ellis and Brunson,
and they do not address the trial court’s alternative finding that a constructive trust should
be imposed at all.
We therefore find that any issue concerning the trial court’s grant of summary
judgment based on its findings of an express and constructive trust, apart from those
issues raised in Defendants’ Rule 59.04 motion and argued in their appellate brief, have
been waived by Defendants. Tennessee Rule of Appellate Procedure 27(a)(7)(A)
provides that an appellant’s brief must contain an argument setting forth “the contentions
of the appellant with respect to the issues presented, and the reasons therefor, including
the reasons why the contentions require appellate relief, with citations to the authorities
and appropriate references to the record (which may be quoted verbatim) relied on[.]” As
our Supreme Court has explained, “[a]n issue may be deemed waived, even when it has
been specifically raised as an issue, when the brief fails to include an argument satisfying
the requirements of Tenn. R. App. P. 27(a)(7).” Hodge v. Craig, 382 S.W.3d 325, 335
(Tenn. 2012). Moreover, “[i]t is not the function of the appellate court to research and
construct the parties’ arguments.” Newcomb v. Kohler Co., 222 S.W.3d 368, 400 (Tenn.
Ct. App. 2006).
III. Standard of Review
“We review a trial court’s denial of a Tenn. R. Civ. P. 59.04 motion
to alter or amend a judgment for abuse of discretion.” Robinson v. Currey, 153 S.W.3d
32, 38 (Tenn. Ct. App. 2004) (quoting Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn.
Ct. App. 2003)). As our Supreme Court has elucidated concerning the abuse of
discretion standard of review:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86
S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the
decision being reviewed involved a choice among several acceptable
alternatives. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.
App. 1999). Thus, it does not permit reviewing courts to second-guess the
court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
10
Ohio App. 1999), or to substitute their discretion for the lower court’s, Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review
does not, however, immunize a lower court’s decision from any meaningful
appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211
(Tenn. Ct. App. 2002).
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d [22,] 42 [(Tenn. 2005)].
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court’s discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court’s decision was
within the range of acceptable alternative dispositions. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)
(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co.,
No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No
Tenn. R. App. P. 11 application filed)). When called upon to review a
lower court’s discretionary decision, the reviewing court should review the
underlying factual findings using the preponderance of the evidence
standard contained in Tenn. R. App. P. 13(d) and should review the lower
court’s legal determinations de novo without any presumption of
correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn.
Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.
11
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).
To the extent that we may consider the trial court’s underlying grant of summary
judgment, we note that such is a matter of law; therefore, our standard of review is de
novo with no presumption of correctness. See Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick Broad. Co. of Tenn. v. Oak Ridge FM,
Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citing Kinsler v. Berkline, LLC, 320 S.W.3d
796, 799 (Tenn. 2010)). As such, this Court must “make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.” Rye, 477 S.W.3d at 250. As our Supreme Court has explained
concerning the requirements for a movant to prevail on a motion for summary judgment
pursuant to Tennessee Rule of Civil Procedure 56:
Tennessee Rule 56.03 requires the moving party to support its motion with
“a separate concise statement of material facts as to which the moving party
contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each
fact is to be set forth in a separate, numbered paragraph and supported by a
specific citation to the record.” Id. When such a motion is made, any party
opposing summary judgment must file a response to each fact set forth by
the movant in the manner provided in Tennessee Rule 56.03. “[W]hen a
motion for summary judgment is made [and] . . . supported as provided in
[Tennessee Rule 56],” to survive summary judgment, the nonmoving party
“may not rest upon the mere allegations or denials of [its] pleading,” but
must respond, and by affidavits or one of the other means provided in
Tennessee Rule 56, “set forth specific facts” at the summary judgment
stage “showing that there is a genuine issue for trial.” Tenn. R. Civ. P.
56.06. The nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., 475 U.S. [574,] 586, 106 S. Ct. 1348, [89 L. Ed. 2d 538 (1986)]. The
nonmoving party must demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the
nonmoving party. If a summary judgment motion is filed before adequate
time for discovery has been provided, the nonmoving party may seek a
continuance to engage in additional discovery as provided in Tennessee
Rule 56.07. However, after adequate time for discovery has been provided,
summary judgment should be granted if the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the existence of a
genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The
focus is on the evidence the nonmoving party comes forward with at the
summary judgment stage, not on hypothetical evidence that theoretically
12
could be adduced, despite the passage of discovery deadlines, at a future
trial.
Rye, 477 S.W.3d at 264-65. “Whether the nonmoving party is a plaintiff or a
defendant—and whether or not the nonmoving party bears the burden of proof at trial on
the challenged claim or defense—at the summary judgment stage, ‘[t]he nonmoving party
must demonstrate the existence of specific facts in the record which could lead a rational
trier of fact to find in favor of the nonmoving party.’” TWB Architects, Inc. v. The
Braxton, LLC, 578 S.W.3d 879, 889 (Tenn. 2019) (quoting Rye, 477 S.W.3d at 265).
Pursuant to Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal
grounds upon which the court denies or grants the motion” for summary judgment, and
our Supreme Court has instructed that the trial court must state these grounds “before it
invites or requests the prevailing party to draft a proposed order.” See Smith v. UHS of
Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014) (footnote omitted).
IV. Res Judicata and Collateral Estoppel
Defendants contend that the trial court erred by declining to find that a grant of
summary judgment in favor of Plaintiffs was precluded by res judicata (claim preclusion)
or collateral estoppel (issue preclusion) based on the conclusion of the probate
proceedings related to Mr. Sturdivant’s estate. Defendants argue that because issues
concerning the distribution of Mr. Sturdivant’s estate included in part the same funds as
those in the Account, any claim of an express or constructive trust involving those funds
should have been precluded in the instant action. Plaintiffs counter that the trial court
properly found that the claims and issues involved in this action were not resolved by the
conclusion of Mr. Sturdivant’s estate because Plaintiffs never disputed that Mr.
Sturdivant had bequeathed the Account to Decedent and because the probate matter was
an in rem action focusing on Mr. Sturdivant’s estate rather than an action between the
parties involved here. Upon careful review, we determine that the trial court properly
found that neither res judicata nor collateral estoppel operated to bar the instant action.
Our Supreme Court has explained the doctrine and essential requirements
of res judicata as follows:
The doctrine of res judicata or claim preclusion bars a second suit
between the same parties or their privies on the same claim with respect to
all issues which were, or could have been, litigated in the former suit.
Creech v. Addington, 281 F.W.3d 363, 376 (Tenn. 2009); Richardson v.
Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting
Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989)). It is a “rule of rest,”
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Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976), and it
promotes finality in litigation, prevents inconsistent or contradictory
judgments, conserves judicial resources, and protects litigants from the cost
and vexation of multiple lawsuits. In re Estate of Boote, 198 S.W.3d 699,
718 (Tenn. Ct. App. 2005); Sweatt v. Tennessee Dep’t of Corr., 88 S.W.3d
567, 570 (Tenn. Ct. App. 2002).
The party asserting a defense predicated on res judicata or claim
preclusion must demonstrate (1) that the underlying judgment was rendered
by a court of competent jurisdiction, (2) that the same parties or their
privies were involved in both suits, (3) that the same claim or cause of
action was asserted in both suits, and (4) that the underlying judgment was
final and on the merits. Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.
1998); see also Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). A
trial court’s decision that a claim is barred by the doctrine of res judicata or
claim preclusion involves a question of law which will be reviewed de novo
on appeal without a presumption of correctness. In re Estate of Boote, 198
S.W.3d at 719.
Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012).
Collateral estoppel, or issue preclusion, “has been described as an extension of the
doctrine of res judicata” and is “applicable only when ‘it affirmatively appears that the
issue involved in the case under consideration has already been litigated in a prior suit
between the same parties, even though based upon a different cause of action, if the
determination of such issue in the former action was necessary to the judgment. . . .’”
State v. Thompson, 285 S.W.3d 840, 848 (Tenn. 2009) (quoting Massengill v. Scott, 738
S.W.2d 629, 631-32 (Tenn. 1987)). As with res judicata, the applicability of collateral
estoppel is a question of law. Mullins v. State, 294 S.W.3d 529, 535 (Tenn. 2009). To
succeed in establishing collateral estoppel, a party must demonstrate:
(1) that the issue to be precluded is identical to an issue decided in an
earlier proceeding, (2) that the issue to be precluded was actually raised,
litigated, and decided on the merits in the earlier proceeding, (3) that the
judgment in the earlier proceeding has become final, (4) that the party
against whom collateral estoppel is asserted was a party or is in privity with
a party to the earlier proceeding, and (5) that the party against whom
collateral estoppel is asserted had a full and fair opportunity in the earlier
proceeding to contest the issue now sought to be precluded.
14
Id. at 535; see also Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 107 (Tenn. 2016).
The judgment upon which Defendants rely for res judicata and collateral estoppel
purposes is the “Agreed Order Construing & Interpreting the Last Will & Testament of
Edwin Robinson Sturdivant,” entered by the probate court on August 22, 2008 (“2008
Probate Order”). Considering the bequest in Mr. Sturdivant’s will to Decedent of
$1,000,000.00 in assets, the probate court stated in pertinent part:
Item One of [Mr. Sturdivant’s] Will provides, in part, as follows:
I bequeath to [my spouse, Mary Foote Sturdivant,] 1,000
Tennessee Bonds valued in the total at face (not market)
value at $1,000,000.00. [My spouse] shall have the right to
select among the bonds in my estate to pick the ones that best
fit her needs.
At the time of [Mr. Sturdivant’s] death, he owned and possessed
various state and/or municipal bonds issued by the state of Tennessee
and/or one or more of its municipalities and/or agencies (“State Bonds”)
having a total par (or “face”) value in excess of $1,000,000.00.
At the time that [Mr. Sturdivant’s] Will was admitted to probate,
several of the State Bonds had been called and/or redeemed. As a result,
the value of the State Bonds on the date the Will was admitted to probate
was less than $1,000,000.00. Since the time that the Will was admitted to
probate, additional State Bonds have been called and/or redeemed and, as
such, the par value of the State Bonds remains under $1,000,000.00.
At the time of [Mr. Sturdivant’s] death, the bequest made to his
spouse, Mary Foote Sturdivant, pursuant to Item One of the Will could
have been satisfied from the State Bonds. However, market forces and/or
other factors have prevented the satisfaction of such bequest in the manner
as set forth in Item One at the time that bequests and/or distributions can be
made from the Estate.
The Will and specifically, Item One, should be construed in such a
manner so as to provide for the distribution of $1,000,000.00 of Estate
assets (consisting of the State Bonds, valued at par value, and such other
assets as she may select) to Mary Foote Sturdivant. The testator clearly
intended for Mary Foote Sturdivant to receive such a bequest.
15
There are sufficient assets in the Estate to fund the bequest to Mary
Foote Sturdivant set forth above and to fund the specific bequests to the
individuals named in Item Two of [Mr. Sturdivant’s] Will.
(Paragraph lettering and footnote omitted.)
It is undisputed that the bonds within the Account at issue in the instant action
were included in the above distribution to Decedent. The individuals named as
beneficiaries of specific bequests in Item Two of Mr. Sturdivant’s will were his three
daughters, Plaintiffs in the instant action. The record demonstrates that in February 2009,
each of the Plaintiffs respectively acknowledged receipt with the probate court of a
specific distribution from Mr. Sturdivant’s estate in the amount of $150,000.00. Ms. Kerr
and her husband also filed respective acknowledgements with the probate court of their
receipt of the residual estate as the “sole residuary distributees” under Mr. Sturdivant’s
will. In addition, Ms. Kerr, acting in her capacity as a co-executor with Decedent of Mr.
Sturdivant’s estate, agreed to entry of the August 2008 probate court order.
In its order granting summary judgment in favor of Plaintiffs, the trial court did
not directly address Defendants’ claims of res judicata and collateral estoppel. However,
the trial court stated in its judgment denying Defendants’ motion to alter or amend that in
granting Plaintiffs’ summary judgment motion and denying Defendants’ summary
judgment motion, the court’s finding that res judicata and collateral estoppel were not
applicable to the instant action had been “implied” in the summary judgment order.
Upon Defendants’ again raising these affirmative defenses in their post-judgment motion,
the trial court expressly ruled that Plaintiffs’ action was “not precluded by res judicata or
collateral estoppel” because “[t]he elements adjudicated by the Court and legal theories
are different from the probate proceedings involving the Estate of Edwin Sturdivant.”
The trial court stated in its incorporated memorandum opinion in relevant part:
I did not believe that the principles of res judicata, estoppel, collateral
estoppel as a result of the finality and adjudication of Ed Sturdivant’s estate
resulted in issue preclusion as to the cause of action asserted in this case.
The elements adjudicated by the Court and the theories are different in the
estate than they are in this case. This is about an alleged trust that was
created and that issue was about what property was in the estate and
whether folks received what they were supposed to receive from the estate.
Plaintiffs [have] never disputed that [Decedent] was entitled to all that
money and she could have used it all. Their argument in this case was it
16
was there for her, was hers, but if it was not used, it – she had an agreement
and she went about fulfilling the agreement, promise to her husband, for the
benefit of them, that those funds and accounts would go back to the
plaintiffs.
We agree with the trial court on this issue.
Regarding the elements required for res judicata to apply, it is undisputed that the
2008 Probate Order was rendered by a court of competent jurisdiction and was a final
judgment on the merits. See Jackson, 387 S.W.3d at 491. However, the parties involved
in the probate matter were not identical to those involved in the instant action. As a co-
executor of Mr. Sturdivant’s estate, Ms. Kerr was a co-petitioner with Decedent, the other
co-petitioner, acting on behalf of the estate. As beneficiaries of the portion of Mr.
Sturdivant’s will that was the subject of the 2008 Probate Order, Ms. Kerr, Decedent, and
Ms. Kerr’s husband were also in the position of respondents in the probate action. None
of the parties other than Ms. Kerr involved in the instant action—not Ms. McCoy, Ms.
Sturdivant, Ms. Henderson, Scott Douglas, or Benjamin Douglas—were parties to the
2008 Probate Order.
Defendants assert that Ms. McCoy and Ms. Sturdivant were parties to the prior
action because they were beneficiaries of Mr. Sturdivant’s estate who filed
acknowledgments of specific distributions to them. We disagree. The prior action was
not a will contest, and neither Ms. McCoy nor Ms. Sturdivant were parties to it.
Arguably, as beneficiaries of Mr. Sturdivant’s estate, Ms. McCoy and Ms. Sturdivant
shared a certain privity of interest with Ms. Kerr in her role as respondent in the probate
action. See Collier v. Greenbrier Developers, LLC, 358 S.W.3d 195, 199 (Tenn. Ct. App.
2009) (“[P]rivies are not only those who are so related by blood and law, but are those
who are so related by reason of the facts showing an identity of interest.” (quoting Cotton
v. Underwood, 442 S.W.2d 632, 634-35 (Tenn. 1969)).
Defendants essentially argue that because Ms. Kerr, and by extension Ms. McCoy
and Ms. Sturdivant, did not contest the will during the probate proceedings, they lost the
opportunity to argue that an express trust had been created or a constructive trust should
be imposed based on Mr. Sturdivant’s 2004 letter, taken together with Mr. Sturdivant’s
will and the subsequent writings and actions of Decedent. This argument assumes that
Plaintiffs’ trust claims were in opposition to the probate court’s interpretation of Mr.
Sturdivant’s will. We agree with the trial court and Plaintiffs that they were not.
Plaintiffs have at no time claimed that Mr. Sturdivant did not bequeath the Account to
Decedent.
17
As the trial court noted, “Plaintiffs [have] never disputed that [Decedent] was
entitled to all that money and she could have used it all.” In Mr. Sturdivant’s 2004 letter
to Decedent, he stated the following as relevant to the Account:
I thought I would update my last thoughts and wishes. You will get
the house, furnishings cars etc., of course, plus $1,000,000 face value worth
of tax free bonds. I had set this up before the federal income tax was
lowered and now it may make less sense than investing in other income
producing assets, as they are called. You might want to consider other
types of bonds, stocks, preferreds etc. Anyway, getting tax exempts is how
matters stand as of now. You can reshape your portfolio in the years ahead.
I don’t know how much money will be left in our joint savings
account. It will be between $100,000 and $65,000 depending on whether
we bought a new Explorer and spent a lot on the Florida trip. Let’s work
from the lower figure and if it is more than that you’ll have more to put in
your pocket.
Ok, probate the will cheaply, you understand how important that is.
It should not cost more than a thousand dollars tops. [Ms. Kerr] as co-
executor is entitled to compensation for travel etc. that she may have to
undertake in connection with probate. Work with her. You will get
annually about $50,000 from the bonds and about $12,000 from SS. That
should leave you very well off and allow you to save something each year
to reinvest. This is important because inflation will erode your income and
the value of the inheritance over time. As soon as the 6 month waiting
period is over and you have your bonds, I want you immediately to make a
will leaving the bonds, the house and whatever additionally you save in the
future from that income to my children and grandchildren equally. You
will probably have to maintain a separate account for this class of assets
opposed to what you have inherited otherwise. If you get married again,
have a pre-nup. agreement so he won’t get any of my children’s money.
In keeping with his last will and testament, Mr. Sturdivant in the 2004 letter indicated his
intent to bequeath all of the Account assets to Decedent. Setting aside Mr. Sturdivant’s
mention of the house, which was not at issue following entry of the February 2018 order
removing the house from consideration in this action, Mr. Sturdivant’s instructions to
Decedent to “make a will leaving the bonds . . . and whatever additionally you save in the
future from that income to my children and grandchildren equally” indicated his wishes
for the disposition of the Account and income earned from it upon the death of Decedent.
18
Mr. Sturdivant did not attempt via his 2004 letter to constrain Decedent’s access to the
Account or ability to utilize the funds therein during her lifetime. Neither the letter nor
Plaintiffs’ trust claim originating with the letter contradicted the interpretation of Mr.
Sturdivant’s will in the 2008 Probate Order.
For the same reasons, we do not find that “the same claim or cause of action was
asserted in both” the probate action and the instant action. See Jackson, 387 S.W.3d at
491. Moreover, as Plaintiffs note, the subject of the probate action was Mr. Sturdivant’s
estate rather than a dispute between parties. See In re Estate of Trigg, 368 S.W.3d 483,
496 (Tenn. 2012) (“A probate proceeding is not an action between the parties, but rather
an in rem action that focuses on the decedent’s estate.”). We determine that the trial
court properly found that res judicata did not apply to bar the instant action.
Furthermore, having determined that the trust claim at issue in this action was not an
issue “raised, litigated, [or] decided” during the probate proceedings related to Mr.
Sturdivant’s estate, we conclude that the trial court also properly found that collateral
estoppel did not apply to bar this action. See Mullins, 294 S.W.3d at 535.
V. Newly Submitted Evidence
Defendants also contend that the trial court erred by finding that the newly
submitted evidence presented with their Tennessee Rule of Civil Procedure 59.04 motion
to alter or amend should not be considered. Within this overarching contention,
Defendants argue that the trial court erred by (1) failing to properly consider the elements
set forth in Harris v. Chern, 33 S.W.3d 741, 744-45 (Tenn. 2000); (2) finding that the
evidence presented with the motion to alter or amend was not new evidence because it
was reasonably available prior to the time of the summary judgment hearing; (3) finding
Defendants’ explanations as to why the evidence was not produced sooner to be
unsatisfactory; and (4) finding that Defendants did not act with due diligence in
presenting the evidence offered with their motion. In response, Plaintiffs contend that the
trial court properly declined to consider the newly submitted evidence because such
evidence was available prior to the summary judgment hearings and partially supported
Plaintiffs’ theory of the case. Upon thorough review of the record and applicable
authorities, we determine that the trial court did not abuse its discretion in declining to
consider Defendants’ newly submitted evidence.
At the outset, we note that in Harris, our Supreme Court adopted five factors to be
considered within a balancing test when additional evidence is submitted by a party in
support of a Tennessee Rule of Civil Procedure 54.02 motion to revise a grant of partial
summary judgment that the court has certified as final as to that issue. See Harris, 33
S.W.3d at 744-45. The Harris Court specifically noted that it was not deciding “[t]he
19
question of what standard to apply in ruling on a Rule 59.04 motion to alter or amend”
but stated that “many of the same considerations discussed herein would be applicable
when a litigant submits additional evidence as part of a Rule 59.04 motion to alter or
amend a summary judgment.” Id. at 746 n.4. The High Court subsequently adopted the
test delineated in Harris as applicable to review of additional evidence presented in
support of a Rule 59.04 motion to alter or amend a summary judgment in Stovall v.
Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). The Stovall Court set forth the following
factors for consideration of a Rule 59.04 motion:
When additional evidence is presented in support of such a motion, the trial
court should consider the factors applicable to a motion to revise a partial
summary judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure: [1] the moving party’s effort to obtain the evidence in
responding to the summary judgment; [2] the importance of the new
evidence to the moving party’s case; [3] the moving party’s explanation for
failing to offer the evidence in responding to the summary judgment; [4]
the unfair prejudice to the non-moving party; and [5] any other relevant
consideration.
Stovall, 113 S.W.3d at 721 (citing Harris, 33 S.W.3d at 744) (factor numbers added); see
Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 306 (Tenn. 2020)
(approving the application of “the factors articulated in Stovall” “[b]ecause the motion to
alter or amend relied on newly-submitted evidence”).
The additional evidence submitted with Defendants’ Rule 59.04 motion was
comprised of the forensic document examiner’s report, several affidavits, correspondence
from Co-Executors’ former counsel and from Defendants’ former counsel, a 2010
Account statement appearing to show four deposits made by Decedent into the Account,
a typed letter written by Decedent to a friend concerning a memorial service in honor of
Mr. Sturdivant, a handwritten note from Decedent’s personal files, and a 2008 Raymond
James investment account application form completed by Decedent for an individual
account. The affidavits were executed individually by Ms. Henderson and Scott Douglas;
Sylvia Pennington, Decedent’s former housekeeper; Angie Sutherland, a bank executive
providing selected records of Decedent’s accounts; Kimberly Pope, an insurance agent
with State Farm Fire and Casualty Company, who had examined records concerning a
personal liability umbrella policy obtained by Mr. Sturdivant and Decedent in 1993 and
maintained by Decedent after her husband’s death; and Janice A. Russell, Decedent’s
longtime personal attorney, who had drafted Decedent’s two most recent wills. Prior to
the summary judgment hearing, Co-Executors had filed previous versions of affidavits
executed by Ms. Henderson and Ms. Pennington.
20
Defendants submitted the forensic document examiner’s report in support of an
allegation proffered for the first time in their Rule 59.04 motion that the three letters
written by Decedent to the individual Plaintiffs purporting to accompany transfer-on-
death forms may not have been authentic. The forensic document examiner, Steven G.
Drexler, stated in his report that he had examined copies of the three letters that had been
sent to him via electronic mail. Mr. Drexler also examined Decedent’s electric typewriter
ribbon used at the time that the letters were written. Mr. Drexler concluded in his report
that there was a “strong probability” that the three letters had been produced by
Decedent’s typewriter but stated that there were “indications” that the “‘Mary’ signatures
may not have been original ‘wet’ in signatures and may be the result of a cut-and-paste
manipulation” on two of the three letters (emphasis in original). Mr. Drexler also noted
that if he were able to examine the letters in their original form, “more definitive
conclusions [could] be drawn as to the true history of these documents.”
In finding that Defendants’ newly submitted evidence should not be considered,
the trial court, in its order denying the motion to alter or amend, stated in pertinent part:
The evidence submitted by Defendants in support of their Motion
was not new evidence and was reasonably available prior to the time the
Summary Judgment Motions were argued. The explanations given by
Defendants as to why the supplemental evidence could not have been
produced earlier are not satisfactory. No request was made for additional
time for discovery or to supplement their motions. Thus, the Defendants
did not act with due diligence.
The supplemental evidence offered by the Defendants should not be
considered. Even if the supplemental evidence were to be considered, it
would not change the Judgment. In fact, portions of the supplemental
evidence support the Plaintiffs’ legal positions.
There was no change in the law since the Judgment was entered that
would warrant altering or amending it. The Court also finds that there was
no error in its prior ruling that would justify altering or amending the
Judgment.
(Paragraph numbering omitted.) In its oral ruling incorporated into the order, the trial
court elaborated in relevant part:
21
[O]n considering this supplemental evidence, and I think that’s a better
term for it than new evidence, on the Rule 59.04 Motion to alter or to
amend a Judgment, in applying those factors, the case had been pending
since September of 2016. So three months in 2016 clipped by, all of 2017,
all of 2018, and I heard the arguments in July of ‘19. And I, basically,
rolled out the red carpet for anybody to request if they needed more time.
At that Hearing, everybody was ready. I don’t – I push folks, but I want to
adjudicate the case on the merits and allow everybody a fair opportunity to
address issues pending in the court. These Affidavits, this evidence, and
[Defendants’ counsel’s] to be commended for doing a yeoman’s job,
maybe, under a handicapped circumstance of he’s coming in late, so to
speak, to the case. So he’s done everything he can to -- and he has
represented his clients well. But the fact remains as what I have seen that
[Defendants’ counsel] has produced. I cannot think of an explanation as to
why this could not have been produced in 2016, ‘17, 2018. Everybody
knew what type of case they had. Everybody knew or should have had
plenty of time to figure out what their evidence and testimony was . . . .
And as the cases say, you can’t just put out a little bit of your evidence and
hope it defeats a summary judgment. If you have it, you need to show your
cards, so to speak, and not keep trying to relitigate a summary judgment
[m]otion. Tennessee courts are pretty clear summary judgments are
important stages of a case. A case can be adjudicated [finally] at the
summary judgment phase. There was the explanation on why this was not
provided to the Court. All this evidence that they believe supports the
defeat of the original summary judgment [m]otion was not produced earlier
is not satisfactory. There have been multiple attorneys and I don’t
necessarily agree with the characterization that attorneys were not
competent in the proceedings but the evidence was there to be had. This is
not new evidence that has surfaced after the Hearing. There’s not been a
change in the law and I don’t believe that I had an incorrect understanding
of the law. No requests for additional time to do discovery prior to the
summary judgment Hearing [were] made. As to the importance of the
evidence, it -- I don’t see the silver bullet that has been discovered, that this
evidence is so convincing that it, in fairness to justice, it must be considered
when the Court allegedly has that evidence now and did not have it in July,
so I don’t think the importance of the evidence is that significant. There
[are] elements of that evidence, frankly, that support[] the plaintiffs’ theory.
So I don’t think there is a likelihood that . . . the defendants have been
unfairly prejudiced by what -- by the summary judgment proceedings prior
in July. Applying the test on whether new evidence should be allowed, I
22
come down that the factors indicate that it is -- should not, and, therefore,
the Court will not consider the new evidence.
Although the trial court did not expressly cite Stovall or Harris in its order, the
factors considered by the trial court clearly mirrored the applicable Stovall factors. See
Stovall, 113 S.W.3d at 721. The trial court essentially found that (1) prior to the
summary judgment hearing, Defendants had not put forth sufficient effort to obtain the
evidence they now sought to have reviewed, (2) the new evidence did not provide a
“silver bullet” that would defeat the grant of summary judgment to Plaintiffs and actually
supported Plaintiffs’ claims to some extent, and (3) Defendants’ explanation for why they
had not produced the evidence prior to the summary judgment hearing was unpersuasive.
See id. Although the trial court did not explicitly mention the fourth factor, unfair
prejudice to Plaintiffs as the nonmoving party, the trial court did find that Defendants had
not been unfairly prejudiced in part because they had requested no additional time for
discovery prior to the summary judgment hearing. Likewise, we note that Plaintiffs were
therefore not put on notice prior to the summary judgment hearing that Defendants were
seeking or planning to submit additional evidence.
As to the fourth factor, Defendants assert that Plaintiffs would not have been
prejudiced by the grant of Defendants’ Rule 59.04 motion because upon setting aside its
summary judgment order, the trial court could have directed the parties to “file new
motions for summary judgment and new statements of undisputed material facts so the
trial court could reconsider its prior ruling or proceeding to a trial after further
discovery.” To the extent that the trial court failed to consider the fourth Stovall factor
concerning potential prejudice to Plaintiffs in considering Defendants’ newly submitted
evidence, see Stovall, 113 S.W.3d at 721, we find the omission to be harmless error.
Defendants’ reasoning in this regard ignores not only the time and expense involved in a
second summary judgment proceeding for Plaintiffs but also the principle of finality in
judgments and the corresponding requirements of readiness for summary judgment
proceedings and compliance with discovery deadlines. See Robinson v. Currey, 153
S.W.3d 32, 39 (Tenn. Ct. App. 2004) (“The non-moving party must fully oppose a
motion for summary judgment before it is granted rather than rely on Rule 59.04 to
overturn a summary judgment after only weakly opposing the motion.”).
Within its consideration of the Stovall factors, the trial court did find, as
Defendants protest, that Defendants’ newly submitted evidence had been reasonably
available prior to the time of the summary judgment hearing; that Defendants’
explanations as to why the evidence had not been produced at that time were
unsatisfactory; and that, as a result, Defendants had not acted with due diligence in
presenting the evidence offered with their motion. In support of their postulate that they
23
could not present their additional evidence at the time of the summary judgment hearing,
Defendants primarily rely on the perceived close proximity of their substitution as the
parties in interest in this action to the date of the summary judgment hearing and their
alleged difficulty communicating with Co-Executors’ counsel prior to their substitution.
Defendants assert that prior to their substitution as parties, they were unable,
despite repeated attempts, to communicate effectively with Co-Executors’ counsel and
provide the information they sought to offer as added evidence. When Defendants’
counsel presented this explanation during the Rule 59.04 hearing, the following exchange
occurred with the trial court:
Trial Court: If I accept everything you said as true, is that a
basis for the admissibility of new evidence on a
summary judgment motion that’s already been
decided?
Defendants’ Counsel: I have not located any legal authority to that
effect, but I believe that in this court’s equitable
jurisdiction it can look at that equity, the
equities of the parties, and determine that there
was a lack of fairness and inequity in how the
summary judgment came about.
On appeal, Defendants acknowledge that what they are intimating as, “ineffective
assistance of counsel,” or in this case, difficulty communicating with counsel who was
actually representing Co-Executors at the time, is not a claim or a defense in a civil
action. See Welch v. Bd. of Prof’l Responsibility, 193 S.W.3d 457, 465 (Tenn. 2006)
(“While ineffective assistance of counsel is a proper ground for granting relief in a
criminal case, there is no such constitutional guarantee to effective counsel in a civil
case.”). As Defendants note, this Court stated in Thornburgh v. Thornburgh, 937 S.W.2d
925, 926 (Tenn. Ct. App. 1996), that “there may be cases where the facts are so egregious
that justice may require some relief” from ineffective assistance of counsel. However, in
Thornburgh, this Court found that an attorney’s alleged failure to pursue discovery
procedures and failure to notify opposing counsel of the defendant’s intent to testify,
causing the exclusion of her testimony, did not rise to such an egregious level. See id.;
see also Morgan v. Krauss, No. M2014-02035-COA-R3-CV, 2015 WL 5936918, at *3-4
(Tenn. Ct. App. Oct. 12, 2015) (comparing the appellant’s similar argument regarding
counsel’s performance to that in Thornburgh and reaching the same conclusion). We
find even less cause for relief on the assertion of ineffective assistance of counsel in this
case when Co-Executors’ counsel was not representing Defendants during the timeframe
24
about which they complain and actually did file affidavits executed by Ms. Henderson
and Ms. Pennington in February 2019.
We note also that Defendants were represented by retained counsel for several
months prior to the summary judgment hearing. In ruling in favor of Defendants’
substitution as parties during the hearing conducted on March 8, 2019, with entry of the
resultant order on May 10, 2019, the trial court also approved the appearance of attorney
Farrell to represent Defendants. Attorney Farrell subsequently acted on Defendants’
behalf when filing a motion to strike Plaintiffs’ amended statement of undisputed facts on
May 6, 2019. Additionally, the evidence presented by Defendants with their Rule 59.04
motion includes correspondence from an attorney, Olen M. “Mac” Bailey, Jr., to Co-
Executors’ counsel, dated November 8, 2017, giving notice that he had been retained by
Defendants and setting up a telephone call with Co-Executors’ counsel, upon which he
subsequently reported to Defendants in a letter also included in the newly submitted
evidence.
Moreover, the trial court entered an agreed scheduling order on November 30,
2018, with a deadline for dispositive motions of December 31, 2018, and a discovery
deadline of April 1, 2019. Defendants did not file a motion to intervene. When
Defendants were substituted as parties in March 2019, they did not file a motion for
permission to extend the discovery deadline or to continue the summary judgment
hearing. Although Defendants have not provided a transcript of the March 2019 hearing,
they have also not disputed the trial court’s statement that it had “basically, rolled out the
red carpet for anybody to request if they needed more time.”
We agree with the trial court that the evidence presented with Defendants’ Rule
59.04 motion reasonably could have been obtained prior to the summary judgment
hearing and that Defendants’ explanations for why it was not obtained and presented at
that time were unavailing. See Fuller v. Allianz Life Ins. Co. of N. Am., No. E2018-
02267-COA-R3-CV, 2020 WL 830067, at *10 (Tenn. Ct. App. Feb. 19, 2020) (“[W]hen
it is shown that the movant to alter or amend has knowledge and possession of the newly
presented evidence before a motion for summary judgment is decided, and fails to present
it the first time around without a compelling reason, the Rule 59.04 motion should be
denied.”).
The trial court also found that the importance of Defendants’ newly submitted
evidence did not weigh in favor of granting the Rule 59.04 motion because the additional
evidence was unlikely to change the outcome and actually offered some support to
Plaintiffs’ theory of the case. Defendants argue that their additional evidence was
important because it offered a “more objective picture of the relationship” between
25
Decedent and Mr. Sturdivant and Plaintiffs and because it “cast[] doubt on the
genuineness of the three letters by which [Decedent] purportedly transmitted the
[transfer-on-death] documents to the Plaintiffs.”6 Concerning the relationships between
Decedent and Mr. Sturdivant and between Decedent and Plaintiffs, we find no
information in the additional evidence in this regard that precludes the trial court’s
relevant findings concerning Decedent’s actions in attempting to follow the wishes of Mr.
Sturdivant’s 2004 letter.
As to the three 2015 letters that the trial court found to be authentically from
Decedent to the three individual Plaintiffs, Mr. Drexler concluded in his report that by a
“strong probability,” all three had been produced by Decedent’s typewriter. Defendants
base their questioning of the letters’ authenticity on Mr. Drexler’s finding of
“indications” that the handwritten signature, “Mary,” may not have been the “original
‘wet’” signature on two of the letters but could have been “the result of a cut-and-paste
manipulation.” Mr. Drexler’s report included an attachment entitled, “Standard
Terminology for Expressing Conclusions of Forensic Documents,” promogulated by the
Scientific Working Group of Forensic Document Examiners, in which a finding that
“indications did/did not” was defined in relevant part as:
a body of writing has a few features which are of significance for
handwriting comparison purposes, and those features are in
agreement/disagreement with another body of writing . . . . There is
evidence which indicates (or suggests) that the John Doe of the known
material may have/have not written the questioned material but the
evidence falls far short of that necessary to support a definite conclusion.
(Emphasis added.) Having examined emailed copies of the letters, Mr. Drexler noted in
his report that if he were able to examine the letters in their original form, “more
definitive conclusions [could] be drawn as to the true history of these documents.”
However, Defendants have offered no theory as to how Plaintiffs would have managed to
produce fraudulent letters on Decedent’s typewriter and again, have not offered a
6
In a separate argument section concerning the authorities cited by the trial court in its summary
judgment order, Defendants in their brief assert that the trial court erred by finding that the Account funds
could all be traced back to Mr. Sturdivant’s separate property, noting the 2010 Account statement they
proffered as additional evidence that reflected four deposits made by Decedent into the Account. Given
the trial court’s determination that Mr. Sturdivant had bequeathed the Account to Decedent for her use
during her lifetime and the fact that the 2010 statement should reasonably have been available to
Defendants at the time of the summary judgment hearing, we do not find that consideration of this point,
if raised as going toward the importance of the newly submitted evidence, would have affected the
outcome of our analysis.
26
satisfactory explanation for why such an examination of the letters could not have been
conducted prior to the summary judgment hearing.
Furthermore, we are guided by our Supreme Court’s recent decision in Harmon
upholding the trial court’s denial of the plaintiffs’ Rule 59.04 motion to alter or amend a
summary judgment upon holding that “the trial court’s decision in this case was within
the range of acceptable alternative dispositions of the motion to alter or amend and was
not an abuse of the trial court’s discretion.” Harmon, 594 S.W.3d at 298. In Harmon, a
health care liability action, the plaintiffs “proffer[ed] causation testimony from a new
expert witness” with their Rule 59.04 motion. Id. Both the trial court and this Court
applied the Stovall factors for additional evidence submitted with a Rule 59.04 motion,
which our Supreme Court found appropriate. Id. at 306. Although the trial court had
found that the additional evidence would have been highly important to the plaintiffs’
case, the trial court had denied the Rule 59.04 motion upon finding that the plaintiffs had
squandered opportunities to present the evidence prior to summary judgment without
satisfactory explanation and that unfair prejudice to the defendant would have resulted
because the plaintiff had failed to seize “‘numerous chances’” to submit the evidence and
had not requested a time extension. Id. at 303-04.
Due to the importance of the additional evidence and what the majority found to
be “‘an absence of unfair prejudice,’” this Court reversed the trial court in a split
decision. Id. at 304 (quoting Harmon v. Hickman Cmty. Healthcare Servs., No. M2016-
02374-COA-R3-CV, 2018 WL 3267080, at *9 (Tenn. Ct. App. June 29, 2018)).
However, in the subsequent appeal to our Supreme Court, the High Court concluded that
because “the essential question” under the discretionary standard of review was “whether
the trial court’s decision was ‘within the range of acceptable alternative dispositions,’”
the trial court had not abused its discretion and should be upheld. Harmon, 594 S.W.3d
at 306-07 (quoting Lee Med., 312 S.W.3d at 524).
In the case at bar, we emphasize that we agree with the trial court’s finding that
the newly submitted evidence was unlikely to change the outcome of this case. Given the
trial court’s findings concerning all of the Stovall factors, particularly Defendants’ failure
to provide a satisfactory explanation for failing to produce the newly submitted evidence
prior to the summary judgment hearing, we determine that the trial court’s decision not to
consider the newly submitted evidence was within “‘the parameters of the trial court’s
sound discretion.’” See Harmon, 594 S.W.3d at 307 (quoting State v. McCaleb, 582
S.W.3d 179, 198 (Tenn. 2019)).
27
VI. Trial Court’s “Reliance” on Ellis and Brunson
Defendants also posit that the trial court erred by declining to alter or amend the
judgment based on the court’s allegedly faulty reliance on Ellis v. Ellis, 1990 WL 19684
(Tenn. Ct. App. Mar. 6, 1990), and Brunson v. Gladish, 125 S.W.2d 144 (Tenn. 1939), in
its oral ruling, incorporated into the summary judgment order, finding that an express
trust had been created. Defendants’ issue regarding Ellis and Brunson is essentially an
assertion that the trial court incorrectly “identified and applied the most appropriate legal
principles applicable” to its discretionary decision. See Lee Med., 312 S.W.3d at 524. In
its order denying the motion to alter or amend, the trial court, through its incorporated
oral ruling, stated: “There’s not been a change in the law and I don’t believe that I had an
incorrect understanding of the law.” Upon thorough review of the record and applicable
authorities, we conclude that the trial court did not abuse its discretion by declining to
alter or amend the judgment based on this issue.
In its oral ruling incorporated into the summary judgment order, the trial court
articulated the following, in relevant part, concerning its finding of an express trust:
To this Court the issue is . . . more significantly was there an express
or constructive trust created by the acts of [Decedent] and Edwin or
[Decedent] separately? It is not necessary for [a valid] trust [to] be in
writing because a trust can be created orally unless the language of a
written conveyance excludes the existence of a trust. If the party seeks to
create an oral trust, the party has to prove the oral trust by greater than
preponderance of the evidence. To prove a [parol] trust, the moving party
must prove the trust with clear and convincing evidence as to overcome any
opposing evidence. This is the safeguard against fraud. Here there are
written documents that plaintiffs point to, and as such, they say that there
are three elements for a valid express trust to be proven: One – a trustee
who holds trust property and who is subject to the equitable duties to deal
with it for the benefit of the other; a beneficiary to whom the trustee owes
the equitable duties to deal with the trust and identifiable trust property.
Express trusts are those which are created by the direct and positive acts of
the parties by some writing or deed or will, but an express trust may be
created by [parol]. To create an express trust there must be an explicit
declaration of trust or circumstances which show beyond a reasonable
doubt that a trust was intended to be created accompanying with an
intention to create a trust followed by an actual conveyance or transfer.
When a holder of legal title expressly grants another individual the right to
property, an oral trust can be established.
28
The plaintiffs in this case must show a grantor, Edwin [Sturdivant],
who intended to create a trust, and they point to the 2004 letter, the subject
property, one million dollars in bonds or the equivalent, a trustee,
[Decedent], and beneficiary, his own family. An express trust does not
have to be created in any particular form of words or conduct for the
manifestation of intention.
In the Ellis v. Ellis case, 1990 Court of Appeals, the couple divorced,
and they had two children. It was agreed the husband would provide funds
for education in a reasonable manner. The children and mother filed a
Complaint seeking specific performance of the contract, alleged contract.
The petitioners alleged the husband had agreed to establish a trust and
refused now to pay any money into it. The Court found the trust existed
because the trustee was the husband, the beneficiaries were the children and
there was an account. The Court concluded the husband had intent to
create a trust because the husband created an account to deposit the funds
for college.
In this case it is clear that Edwin’s Will intended for [Decedent] to
have the property. It has to be read in context of the 2004 and subsequent
acts in which he reduced to writing. We do not have the benefit of [parol]
testimony as to their statements mainly because of the dead man’s statute,
but in the document he made clear his hope, at least, that she would keep
these funds, use the income for her support, and then she was to take action.
He suggested a Will or a prenup so that any future husband would not get
his children’s money, and he wanted his children to have these funds after
[Decedent] was done using them.
The Court finds that an express trust was created, and it is the
Raymond James account. The plaintiff[s] had not elected to seek any
remedy as to the home, and it is not in contest before this Court, and the
parties’ agreement to not pursue it is not binding on interpretation of the
Raymond James account. The express trust is the Will leaving the funds to
[Decedent] in the context of the 2004 letter setting out that she was to use
the funds, the interest from them, and then it would go to his family,
children or children and grandchildren.
29
In Ellis, which involved an express trust, this Court explained concerning the
elements of a trust:
The existence of a trust requires proof of three elements: (1) a trustee who
holds trust property and who is subject to the equitable duties to deal with it
for the benefit of another, (2) a beneficiary to whom the trustee owes the
equitable duties to deal with the trust property for his benefit, and (3)
identifiable trust property.
Ellis, 1990 WL 19684, at *3 (citing G.G. Bogert and G.T. Bogert, THE LAW OF TRUSTS
AND TRUSTEES § 1 (1984)); see also Kopsombut-Myint Buddhist Ctr. v. State Bd. of
Equalization, 728 S.W.2d 327, 333 (Tenn. Ct. App. 1986) (noting the same proof
requirements for the existence of a trust while explaining that although “[a] valid trust
need not be in writing,” “when a party seeks to establish an oral trust, it must do so by
greater than a preponderance of the evidence”) (internal citations omitted).
Defendants posit that the trial court erred in “relying” on Ellis because the Ellis
facts are distinguishable from the instant action. However, the trial court did not find the
factual situations identical. Instead, the trial court began with the requirements of a trust
delineated in Ellis and found that instead of the type of written contract existing in Ellis,
see 1990 WL 19684, at *1, the express trust here was created by the combination of Mr.
Sturdivant’s bequeathing the Account to Decedent in his Will and then setting forth his
wishes in the 2004 letter for Decedent’s use of the Account and interest during her
lifetime with the remainder to be left to Mr. Sturdivant’s descendants. Defendants also
argue that Ellis is distinguishable because the trustee, the husband, was also the grantor of
the trust. This Court in Ellis declined to consider a request made by the appellees that the
husband would be removed as trustee because the request was made for the first time on
appeal. Id. at *5. However, no mention is made in Ellis of a requirement that the trustee
be one and the same as the grantor, and Defendants have offered no authority, nor has our
research revealed any, for such a requirement.
In its oral ruling incorporated into the summary judgment order, the trial court did
not cite Brunson, 125 S.W.2d 144, until it analyzed Plaintiffs’ alternative claim of a
constructive trust, stating in pertinent part:
An alternative, it is argued that a constructive trust was created, and
it is a construction of equity in order to satisfy the demands of justice. It is
a formula through which the conscience of equity finds expression. When
property has been acquired in such circumstances that the holder of the
legal title may not in good conscience retain the beneficial interest, equity
30
converts into a trustee. A court of equity in dealing with creating a
constructive trust is bound by no unyielding formula. A constructive trust
is imposed, One, by fraud, actual or constructive – that’s not applicable
here – by duress or abuse of competence – that is not applicable here – by
commission of wrong – not applicable – by any form of unconscionable
conduct – that is not applicable – artifact, concealment or questionable
means or who in [any] way against equity and good conscience either was
obtained or holds a legal title which not in equity [should] in good
conscience hold and enjoy.
All the actions of [Decedent] indicated that it was her intent to hold
this property for the children. She was communicating with the children of
Edwin. She was communicating with Edwin’s children her intent for them
to have the account. The funds that are in the account trace back to
Edwin’s separate funds that he allowed her in his Will to have and to keep
to use for her benefit with the understanding that when she was done with
it, it would go to his family.
In the case of Brunson, 1938, a husband devised to his Will his
entire estate in 1915. In 1924 before the husband’s death, the testator in the
presence of his wife, his former law partner and the Clerk and Master of
Chancery Court stated he would give his entire estate to his wife to avoid
complications. He then had his law partner read the Will and stated that he
and his wife agreed that after the husband’s death, she would give his
brother $1,000.00 and she would execute her Will devising one-half of the
assets to her nieces and nephews and one-half of the assets to his nieces and
nephews. The wife never executed a Will, and the husband’s nieces and
nephews filed suit to set up a [parol] trust based on the agreement in 1924,
not the Will in 1915 but as a result of the statements that were made . . . in
1924. The Supreme Court of Tennessee found the [parol] evidence
establishing a trust did not contradict the provisions of the Will.
This goes back to the probate of Edwin Sturdivant’s Will. This trust
does not contradict the Will of Edwin. The agreement was made after the
execution of the Will. The 2004 letter was sent after the execution of
Edwin’s Will setting out what he wanted. [Decedent] accepted that by
segregating the million dollars by stating that she was taking out an
insurance policy to protect it and communicating to all the beneficiaries, his
children, that they would be designated for that account.
31
Going back to Brunson, the Court finds the trust agreement was
made nine years after the Will was executed, and the Court found a
constructive trust established, leaving the husband’s nieces and nephews
one-half of the estate.
The 2004 letter and the actions of Edwin and [Decedent] indicate
their mutual desire for the bonds to transfer to plaintiffs upon [Decedent’s]
death. The bonds are now traced it’s undisputed to the Raymond James
account. The Transfer of Death forms were not received by Raymond
James. The Court finds that [Decedent] substantially complied with
changing the beneficiary by getting the forms back and following up and
asking them to send the information to her. Substantial compliance because
she had segregated these funds over the years. She was complying with the
2004 letter and that there is an apparent mistake in the fact that the forms
were lost in the mail or misplaced. A constructive trust is created. Equity
requires it. The 2004 letter is consistent with the statements of [Decedent],
who, as she said to [Ms. Kerr] in 2004, 2007 and 2015, a letter to [Ms.
McCoy] in 2015 and a letter to Ms. [Sturdivant] in 2015, the children of
Edwin.
Defendants assert that the trial court erred by “relying” on Brunson because in the
instant action, witnesses were not presented as to any oral agreement between Mr.
Sturdivant and Decedent and because the oral agreement in Brunson did not contradict
the husband’s will, in which he bequeathed his estate to his wife. See Brunson, 125
S.W.2d at 145-46. However, as explained in an earlier section of this opinion, we have
determined that the trial court correctly found that Mr. Sturdivant’s 2004 letter did not
contradict his will because Mr. Sturdivant bequeathed the Account to Decedent for her
use throughout her lifetime with the direction in the 2004 letter that he wished for her to
bequeath the remainder of the Account to his children or children and grandchildren.
Moreover, Defendants have questioned the trial court’s reference to Brunson in
finding the existence of an express trust when, as Plaintiffs note, the trial court cited
Brunson in analyzing the propriety of imposing a constructive trust, which was the type
of trust at issue in Brunson. See id. at 148. “Constructive trusts are those which the law
creates, independently of the intention of the parties, to prevent fraud or injustice.” XL
Sports, Ltd. v. $1,060,000 Plus Interest Traceable to Respondent, No. W2005-00689-
COA-R3-CV, 2006 WL 197103, at *10 (Tenn. Ct. App. Jan. 26, 2006) (quoting 90
C.J.S. TRUSTS § 174 (2002)). As our Supreme Court has elucidated:
32
A trial court can impose a constructive trust
against one who, by fraud, actual or constructive, by duress or abuse of
confidence, by commission of wrong, or by any form of unconscionable
conduct, artifice, concealment, or questionable means, or who in any way
against equity and good conscience, either has obtained or holds the legal
right to property which he ought not, in equity and good conscience, hold
and enjoy.
Cent. Bus Lines, Inc. v. Hamilton Nat’l Bank, 239 S.W.2d 583, 585 (Tenn. 1951). Courts
have imposed constructive trusts in four types of cases:
(1) where a person procures the legal title to property in violation of some
duty, express or implied, to the true owner; (2) where the title to property is
obtained by fraud, duress or other inequitable means; (3) where a person
makes use of some relation of influence or confidence to obtain the legal
title upon more advantageous terms than could otherwise have been
obtained; and (4) where a person acquires property with notice that another
is entitled to its benefits.
Roach v. Renfro, 989 S.W.2d 335, 341 (Tenn. Ct. App. 1998) (quoting
Intersparex Leddin KG v. Al-Haddad, 852 S.W.2d 245, 249 (Tenn. Ct.
App. 1992)) (internal citation omitted).
Coleman v. Olson, 551 S.W.3d 686, 695 (Tenn. 2018).
In this case, the trial court explicitly did not find that Decedent had held the
Account in violation of a duty or by any fraud or duress, but the court did find that
Decedent’s actions and writings evinced her compliance with Mr. Sturdivant’s wishes in
the 2004 letter and that because of “an apparent mistake in the fact that the forms were
lost in the mail or misplaced” “equity require[d]” the creation of a constructive trust. The
trial court thereby found applicable the fourth type of constructive trust, “where a person
acquires property with notice that another is entitled to its benefits.” See Coleman, 551,
S.W.3d at 695 (quoting Roach v. Renfro, 989 S.W.2d 335, 341 (Tenn. Ct. App. 1998)).7
7
Defendants posit that in contrast to the decisions cited in the summary judgment order, the trial court
would have found a case with “some similarity to the instant case” in this Court’s decision in Ziyad v.
Estate of Tanner, No. W2007-01683-COA-R3-CV, 2008 WL 4830872 (Tenn. Ct. App. Nov. 6, 2008),
which Defendants brought to the trial court’s attention in their motion to alter or amend. Having
reviewed Ziyad, a case involving a claim against an estate for an implied or resulting trust that rested
33
Mindful of the discretionary standard of review applicable here to Defendants’
Rule 59.04 motion, see Harmon, 594 S.W.3d at 306, and our previous determination that
Defendants have waived any issue concerning the trial court’s grant of summary
judgment apart from those issues raised in their Rule 59.04 motion, we decline to further
review the trial court’s findings in its summary judgment order concerning the existence
of an express trust and alternative imposition of a constructive trust. We discern no abuse
of discretion in the trial court’s references to Ellis and Brunson in its summary judgment
analysis. Moreover, we discern no abuse of discretion in the trial court’s denial of
Defendants’ Rule 59.04 motion to alter or amend.
VII. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court. We remand
this case for enforcement of the judgment and collection of costs below. Costs on appeal
are taxed to the appellants, Lydia Henderson, Scott Douglas, and Benjamin Douglas.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
entirely on one letter of questionable authenticity, see Ziyad, 2008 WL 4830872, at *9-10, we find no
abuse of discretion in the trial court’s omission of Ziyad in its Rule 59.04 analysis.
34