In re Estate of Dennie Lamar Trent

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 27, 2015 Session
IN RE: ESTATE OF DENNIE LAMAR TRENT
Appeal from the Chancery Court for Hawkins County
No. 2013-PR-142 Thomas Wright, Judge Sitting By Interchange
No. E2015-00198-COA-R3-CV-FILED-JANUARY 25, 2016
Barry Trent, the Executor of the Estate of Dennie Lamar Trent, appeals the order of the
Chancery Court for Hawkins County (“the Trial Court”) finding and holding that the
claim against the estate filed by Brenda Jefferson for an unpaid $50,000 debt as
evidenced by a note is valid. We find and hold that the evidence does not preponderate
against the Trial Court‟s findings, and we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.
Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Barry Trent, Executor of the
Estate of Dennie Lamar Trent.
Wayne Stambaugh, Morristown, Tennessee, for the appellee, Brenda Jefferson.
OPINION
Background
Dennie Lamar Trent (“Deceased”) died in September of 2013 as a resident of
Hawkins County, Tennessee. Deceased‟s Last Will and Testament (“the Will”) was
admitted to probate, and Deceased‟s son, Barry Trent, (“the Executor”) was appointed as
Executor of Deceased‟s estate (“the Estate”). In December of 2013, Brenda Jefferson
(“Jefferson”) filed a verified claim against the Estate alleging a claim for an unpaid loan
of $50,000.00 evidenced by a document titled “Promissory Note” (“the Note”) and a
claim for a Harley Davidson motorcycle allegedly worth $15,000.00. The Executor filed
an exception to Jefferson‟s claim.
The exception to Jefferson‟s claim was heard by a Special Master. The Special
Master entered a report on February 14, 2014 finding and holding, inter alia, that the
hearing on the exception to the claim was set for February 14, 2014, that Jefferson and
her counsel did not request a continuance and did not appear at the hearing, that the
Executor alleged that Jefferson‟s claim was not a just debt of the Estate, and that no proof
of the claim was presented. The Trial Court held a hearing on the Special Master‟s report
and then entered an order on February 27, 2014 dismissing Jefferson‟s claim against the
Estate.
On March 17, 2014, Jefferson filed a motion to set aside the denial of her claim
alleging, with regard to the hearing before the Special Master, that Jefferson had just
gotten out of the hospital, that road conditions were hazardous and Jefferson‟s attorney
had fallen on ice injuring his knee and back, and that the severe inclement weather was
beyond Jefferson‟s control. The Trial Court entered an order on March 18, 2014 setting
aside the dismissal, reinstating Jefferson‟s claim, and then sua sponte recusing the trial
judge.
On March 20, 2014, the Executor filed a Motion to Set Aside Order seeking to
have the Trial Court‟s March 18, 2014 order set aside and the dismissal of Jefferson‟s
claim reinstated. The Honorable Thomas J. Wright was designated to hear the case by
interchange. On April 17, 2014 the Executor again filed his Motion to Set Aside Order
seeking to reinstate the dismissal of Jefferson‟s claim.
The case proceeded to trial in November of 2014. Ruth Barker testified that she
prepared Deceased‟s tax returns from 1998 through 2012. Ms. Barker testified that she is
a senior buyer for Salisbury University, a self-employed tax preparer, and that she also
works for Hamilton & Long Tax Service in Rogersville, Tennessee. Ms. Barker lives in
Maryland, but still does work in Rogersville. She stated that she “come[s] down and
dedicate[s] one week” to work in Rogersville doing tax preparation.
Ms. Barker met Deceased in 1997 or 1998 at the VFW in Rogersville, Tennessee.
Ms. Barker admitted that she dated Deceased for approximately six months prior to
beginning to prepare his tax returns. Ms. Barker testified that she spoke with Deceased
“almost weekly.” When asked about the last time she spoke to Deceased, Ms. Barker
stated that she “talked to him the week before he passed away. He had asked me to come
down here and see him, and I had actually made plans to do so, but he passed away the
following week.”
2
Ms. Barker never did accounting work for Jefferson, but she did meet Jefferson
through Deceased at some time prior to 2006. Ms. Barker testified that Deceased claimed
Jefferson on his taxes. She stated that he originally started claiming Jefferson in 2008.
When asked if she had handled any other types of financial matters for Deceased,
Ms. Barker stated:
[Deceased] would call me about his investments. We would go over - -
when I prepared his income tax return, it would take several days to do.
We had to go over every investment. In 19 - - we would - - when interest
rates dropped, I advised [Deceased] perhaps he would like to move his
money into investments. Of course, he was concerned about losing some of
his principal because he had lost his retirement from the mining company,
Conan & Company, when the stock market went under.
Ms. Barker testified that she assisted Deceased in moving his money from one account to
another. She stated: “when the interest rates dropped way low, we moved - - I suggested
to him that he put his money into money markets and bonds that would not take any of
his principal because [Deceased] never wanted to lose one red cent of his money that he
had worked for, and you can‟t blame him for that either.”
Ms. Barker testified that Deceased had spoken to her about purchasing real
property, and Ms. Barker advised Deceased to take the loan from Jefferson rather than
take money from his investments. Ms. Barker testified that she knew Deceased had taken
the loan from Jefferson because Deceased told her he did, but Ms. Barker was not present
when the Note was signed and was not a party to the transaction.
Ms. Barker testified that as of the last year that she prepared his tax return,
Deceased had not repaid the loan from Jefferson. When asked how she knew this Ms.
Barker stated: “Well, [Deceased] and I would go over every investment that he had, and
he never withdrew any of the investment money that he had.” Ms. Barker was asked how
much money Deceased had in investments, and she stated: “I would say at the time of his
death it was probably somewhere in the neighborhood of four hundred thousand dollars
($400,000.00).”
Ms. Barker testified that she was familiar with Deceased‟s signature and could
“[a]bsolutely” identify it because she had witnessed him signing documents “[m]any
times.” Ms. Barker identified the signature on the Note as Deceased‟s.
As pertinent, under the Will Deceased bequeathed the checking account known as
the D.B. Trent account to Jefferson. The Executor testified that neither Deceased nor
3
Jefferson ever told him about the fifty thousand dollar loan. The Executor gave Jefferson
an Affidavit (“the Affidavit”) to sign, which stated: “I, the undersigned, a beneficiary of
the Estate of Dennie Lamar Trent, do hereby make Affidavit that I have received my
share of the Estate and request that the estate be closed.” Jefferson signed the Affidavit
on September 18, 2013. The Executor testified that he was unaware of the existence of
the Note when he took the Affidavit to Jefferson to sign.
Sandra Inman, Jefferson‟s sister, testified at trial. Ms. Inman lives in North
Carolina. She met Deceased “in 1970-something when he was coming to North Carolina
and dating [her sister].” Ms. Inman explained that Deceased and Jefferson dated and then
broke up for a time and again began dating after the death of Jefferson‟s husband, Jerry.
Ms. Inman was asked if she had contact with her sister after 2007, and she stated:
“[e]very day.”
Ms. Inman testified that she has held some of Jefferson‟s money for Jefferson and
that she still had some of Jefferson‟s money at the time of trial. Ms. Inman testified that
she had held $138,000 for Jefferson, which was the money from the sale of Jefferson‟s
house. Initially, this money was in a bank in North Carolina, and then Jefferson
withdrew it from the bank and put it in Ms. Inman‟s safe. Ms. Inman was asked why
Jefferson withdrew the money from a bank and put it into Ms. Inman‟s safe, and Ms.
Inman testified: “She asked me to keep the money because she said she felt that she was
being done in. . . . That she was being took advantage of. . . . By [Deceased].”
Ms. Inman was present when Deceased executed the Note on July 7, 2007. The
Note was executed at the house where Jefferson and Deceased were living. Ms. Inman
signed the Note as a witness. Ms. Inman‟s younger sister Rita Taylor also was present
the day the Note was executed, and Ms. Taylor also signed the Note as a witness. Ms.
Inman explained that Jefferson called and told Ms. Inman to bring fifty thousand dollars
of the money Ms. Inman was holding for Jefferson to Jefferson‟s house, and Ms. Inman
did as Jefferson requested. Ms. Inman testified that she obtained a blank pre-printed note
from Walmart. Jefferson filled out the Note. Ms. Inman counted out the fifty thousand
dollars and gave Jefferson the money to give to Deceased. Ms. Inman testified that she
saw Deceased and Jefferson sign the Note.
Ms. Inman signed the Note on the back side instead of at the bottom of the front of
the document. When asked why she signed the back of the Note, Ms. Inman stated:
Well, I thought doing my - - I‟m a layperson, and I thought that over here
where it says - - where the Notary Republican (sic) - - I just wrote „witness‟
and I witnessed it because I felt myself that if we wrote it right here where
4
they‟d said Notary should be that it would take - - it would look better, I
reckon. I don‟t know.
Deborah Jones who lives in Rogersville, Tennessee testified that she met Jefferson
through Deceased. Ms. Jones testified that she had known Deceased for approximately
twenty years. Deceased and Ms. Jones‟s husband were friends.
Ms. Jones testified that Deceased told her that he was going to borrow fifty
thousand dollars from Jefferson to purchase land “[b]ecause he didn‟t want to get any of
his stocks. He would lose money.” She testified that Deceased told her this six or seven
years ago during the summertime. Deceased never told Ms. Jones that he paid Jefferson
back.
Jefferson testified that she has lived on Campbell Drive in Rogersville, Tennessee
since 2003. She testified that she lived part-time at Deceased‟s home on Valley View
Drive in Rogersville, Tennessee until Deceased‟s death on September 6, 2013. Jefferson
testified that she met Deceased “a long time ago” in North Carolina and that he was her
first love. Jefferson testified that Deceased had been working for a construction
company, and when he left North Carolina Jefferson followed him to Tennessee and
discovered that Deceased had a wife who was expecting a child. Jefferson then met and
married her husband. Jefferson testified that she and Deceased continued to have some
sort of relationship, and after her husband died Jefferson and Deceased “started running
around together and then we started living together . . . about the middle of 2003.”
Jefferson testified that she loaned Deceased the $50,000 to purchase land that
adjoined land he already owned and that Deceased never paid her back. Jefferson
explained that the real property was in Tennessee, but the seller was in North Carolina.
Jefferson testified that she did not sign the Note, but that she did fill in the blanks.
Jefferson was asked if the first written request for repayment of the loan was the claim
she made against the Estate, and she admitted that she had not written Deceased anything
prior to his death with regard to the loan. She stated: “No. I badgered him to death when
he first got sick trying to get him to get me my money, . . . and his nephew said that he
told him that he ought to do it.”
Jefferson testified that at one point her house was put into Deceased‟s name
“because he carried me on his income tax.” She stated that she went along with it “to
help him,” and then the property later was transferred back to her. When asked why she
gave Deceased the deed to her property, Jefferson stated:
Because he was going to carry me on his income tax, and he said he had to
do that in order to show that he was keeping me up six months out of the
5
year, And [sic] by it being in his name, it showed he was furnishing me a
place to live.
Jefferson was asked if she ever was compensated by Deceased for her property and she
stated: “Lord, no. . . . I paid [Deceased‟s] light and water bills. . . . And his groceries.”
When asked what would have happened if Deceased had died before deeding the
property back to her, Jefferson testified that she retained a lifetime estate in the deed to
Deceased.
Jefferson was asked about a check Deceased wrote to her the year that he died for
eighteen thousand dollars. Jefferson stated:
He owed me twelve thousand (12,000), plus he owed me the fifty (50), but
in his personal checking account I had money in it too, and I was under the
impression I only had twelve thousand (12,000) in it. But he said that, no,
it was eighteen thousand (18,000), . . . and that he would take care of the
other, but he died.
Jefferson was asked about the Affidavit she signed stating that she had received
her share of the Estate, and she stated:
I may not be too smart, but, now, [the Executor] said, quote unquote, I said,
“What‟s that say”? He said, “That‟s just to show that the DB Trent account
is closed.”. . . And I said, “I know it is,” because I had given - - paid [the
Executor] for a few nights for staying with his daddy because he had lost
work, a hundred and forty dollars ($140.00) a night. And then I had bought
special groceries and stuff. So it took it. And I was down to eighteen cents
(18¢) in it, and I told [Deceased] to go close it.
Jefferson testified that she signed the Affidavit without reading it and stated “because I
trust [the Executor].” Jefferson was asked if she could read and write, and she stated:
“Not very well.”
Annette Peavler, Deceased‟s sister, testified that Jefferson “told me that what
[Deceased] owed her was settled, that she was satisfied.” Ms. Peavler testified that this
conversation occurred prior to Deceased‟s death at the house where Deceased and
Jefferson lived. When asked for further details about the conversation, Ms. Peavler
stated: “I said, „Are you satisfied?‟ after she told me that, and she said, „Yes, everything‟s
been fixed.‟” Ms. Peavler was asked what „satisfied‟ meant, and she stated: “Well,
whatever she thought that he owed her.” When asked if she knew specifically about what
Deceased owed Jefferson, Ms. Peavler stated: “I know that she had - - she told me she
6
had twelve thousand dollars ($12,000.00) in his bank account.” When questioned further
Ms. Peavler agreed that at the time of this conversation she was unaware of the existence
of the Note and that all she and Jefferson were talking about was the $12,000 that
Jefferson wanted back. Ms. Peavler testified that neither Jefferson nor Deceased ever
told Ms. Peavler that Deceased owed Jefferson $50,000.
Stephen Wayne Peavler, Deceased‟s nephew, testified that he saw Deceased often
during the last few months of Deceased‟s life and that he took Deceased to the doctor and
to chemotherapy treatments. When asked if he had conversations with Deceased about
debts that Deceased owed to Jefferson, Mr. Peavler stated:
Yes. From what I know he had twelve thousand dollars ($12,000.00) of
[Jefferson‟s] in a checking account that she couldn‟t get to or what have
you, and she needed her money, and he needed to pay her and settle up on
the twelve thousand dollars ($12,000.00). . . . For some reason, I can‟t say
or point a finger exactly what it was. He wrote her a check for . . . eighteen
thousand dollars ($18,000.00), and that was to give [Jefferson] the twelve
thousand (12,000) back and a couple odd thousand for this, and that, and
what have you.
Mr. Peavler testified that he never heard about the fifty thousand dollar loan until after
Deceased‟s death.
After trial the Trial Court entered its order on January 6, 2015 finding and holding,
inter alia that Jefferson‟s claim for the unpaid loan of $50,000.00 as evidenced by the
Note was valid and was approved, and that Jefferson had failed to meet her burden with
regard to the claim for the Harley Davidson motorcycle, which was denied. The
Executor appealed to this Court. On March 4, 20151, the Trial Court entered an order
stating, in pertinent part:
The Motion filed by the Trent Estate came on to be heard on the
11th day of August, 2014, before the Honorable Thomas J. Wright, sitting
by interchange. The Court, after review of the motion and hearing
argument of counsel, was of the opinion the motion was not well taken and
the Court denied the motion.
Discussion
1
Although this order was not filed until after trial, it shows that the Executor‟s Motion to Set Aside Order
was heard by the judge sitting by interchange prior to trial.
7
Although not stated exactly as such, the Executor raises four issues on appeal: 1)
whether the original trial judge erred in reinstating Jefferson‟s previously dismissed claim
prior to recusing; 2) whether the Trial Court erred in reinstating Jefferson‟s claim
pursuant to Tenn. R. Civ. P. 55.02 and Tenn. R. Civ. P. 60.02 when Jefferson failed to
file objections to the Special Master‟s report; 3) whether the Trial Court erred in hearing
testimony alleged to be in violation of the Dead Man‟s statute; and, 4) whether the Trial
Court erred in finding that Jefferson‟s claim against the Estate under the Note is valid.
Jefferson requests an award of attorney‟s fees on appeal.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court‟s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
We first consider whether the original trial judge erred in reinstating Jefferson‟s
previously dismissed claim and then recusing himself. We understand the original trial
judge‟s desire to return the dispute to square one once he decided to recuse himself.
Once a judge decides recusal is necessary, however, the trial judge should, absent
extraordinary circumstances, do just that and recuse himself or herself without making
any further decisions in the case.
We agree with the Executor that the original trial judge should have recused
himself prior to reinstating Jefferson‟s claim. This error, however, was cured when the
new judge sitting by interchange heard the Executor‟s motion to set aside the order
reinstating Jefferson‟s claim and then denied that motion. The end result wound up being
exactly as it would have been if the original judge had recused prior to reinstating
Jefferson‟s claim and the judge sitting by interchange had heard Jefferson‟s motion and
ruled in Jefferson‟s favor. The issue of whether reinstatement of Jefferson‟s claim was
proper was heard by an impartial court. This issue is without merit.
We next consider whether the Trial Court erred in reinstating Jefferson‟s claim
pursuant to Tenn. R. Civ. P. 55.02 and Tenn. R. Civ. P. 60.02 when Jefferson failed to
file objections to the Special Master‟s report. As pertinent, Tenn. R. Civ. P. 55.02
provides that “[f]or good cause shown the court may set aside a judgment by default in
accordance with Rule 60.02.” Tenn. R. Civ. P. 55.02. We review a trial court‟s decision
with regard to Tenn. R. Civ. P. 60.02 motions for abuse of discretion. Ferguson v.
Brown, 291 S.W.3d 381, 386 (Tenn. Ct. App. 2008).
8
The Trial Court entered its order on the Special Master‟s report on February 27,
2014 dismissing Jefferson‟s claim for failure to prosecute. Jefferson then filed a motion
seeking to set aside the default judgment. The Trial Court entered an order on March 18,
2014 setting aside the dismissal of Jefferson‟s claim and reinstating Jefferson‟s claim,
among other things. The Executor argues in his brief on appeal that Jefferson‟s failure to
file objections to the Special Master‟s report precluded her from filing a Rule 60.02
motion with regard to the Trial Court‟s order on the Special Master‟s report.
In support of his argument the Executor cites Tenn. Code Ann. § 27-1-113 and
some cases which discuss this statute. In pertinent part, Tenn. Code Ann. § 27-1-113
provides:
In all cases tried on the facts in a chancery court and afterwards brought for
review to the court of appeals, . . . . Where there has been a concurrent
finding of the master and chancellor, which under the principles now
obtaining is binding on the appellate courts, the court of appeals shall not
have the right to disturb such finding. . . .
Tenn. Code Ann. § 27-1-113 (2000). This Court has provided gloss of this statute
in the case of Hopkins v. First Tennessee Nat. Bank, which is cited by the
Executor, stating: “Facts found by a Master and concurred in by the Chancellor are
unassailable on appeal on the „preponderance of the evidence‟ test of T.C.A. § 27-
303. On appeal such approved fact finding has the same weight as a jury verdict
at law.” Hopkins v. First Tennessee Nat. Bank, 560 S.W.2d 916, 917 (Tenn. Ct.
App. 1977).
The Executor has missed the point. The Executor is not arguing against a decision
wherein this Court attempted to change the findings of a master in which a chancellor
concurred. Rather, what is at issue here is a decision in which the Trial Court, a chancery
court, altered its own opinion prior to the opinion becoming final. Pursuant to Tenn. R.
Civ. P. 592 a trial court has the right to do just that, even on its own initiative pursuant to
Tenn. R. Civ. P. 59.05. As such, we find the Executor‟s argument unpersuasive.
The Executor also argues that because the Trial Court entered its March 18, 2014
order reinstating Jefferson‟s claim only one day after Jefferson filed her motion that the
2
Our Supreme Court has explained “for thirty days after entry of a final judgment, motions for relief
should be premised upon Rule 59.” Discover Bank v. Morgan, 363 S.W.3d 479, 489 (Tenn. 2012).
Jefferson filed her motion seeking to reinstate her claim less than thirty days after entry of the February
27, 2014 order dismissing her claim, and the February 27, 2014 order adjudicated all claims, rights, and
liabilities of all of the parties. Our Supreme Court provided helpful guidance with regard to the proper
rule upon which to base motions to set aside previous decisions in Discover Bank, 363 S.W.3d at 488-90.
9
Executor did not have time to respond to Jefferson‟s motion, which somehow eliminated
the Executor‟s right to challenge the March 18, 2014 order. Any such error arising from
the early entry of the order was cured, however, when the Executor had the opportunity
to file his Motion to Set Aside Order and this motion was heard by the new judge sitting
by interchange months later. Thus, the Executor did have the opportunity to respond to
Jefferson‟s motion.
With regard to whether the Trial Court erred in reinstating Jefferson‟s claim
pursuant to Tenn. R. Civ. P. 60.02, we note that “while the consideration of a motion to
set aside a judgment by default requires the exercise of the trial court‟s sound discretion,
the law favors the granting of the motion.” Patterson v. Suntrust Bank, 328 S.W3d 505,
511 (Tenn. Ct. App. 2010). Given the record now before us, we find no abuse of
discretion on the part of the Trial Court in setting aside the judgment dismissing
Jefferson‟s claim.
We next consider whether the Trial Court erred in hearing testimony alleged to be
in violation of the Dead Man‟s statute. The Dead Man‟s statute, Tenn. Code Ann. § 24-
1-203, provides:
24-1-203. Transactions with decedent or ward – Dead man’s statute. –
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.
Tenn. Code Ann. § 24-1-203 (2000).
The Executor argues in his brief on appeal that the Trial Court erred in allowing
Jefferson‟s testimony and cites to pages 137 and 138 of the transcript of the trial. A
careful review of the record on appeal reveals that what was discussed on pages 137 and
138 of the transcript with regard to the objection under the Dead Man‟s statute was a
paper Deceased gave to Jefferson in 2011 referring to the motorcycle and not the Note.
Jefferson‟s testimony itself does not appear on either of these pages. A review of the
surrounding pages in the transcript reveals that just prior to the objection under the Dead
Man‟s statute being raised, Jefferson answered questions about checks written on a
specific bank account which she and Deceased shared. With regard to these checks, on
page 136 of the transcript, the Executor‟s attorney argued that “if there was a debt on the
motorcycle, that he paid for it.” No issues regarding the motorcycle, however, were
raised on appeal. The Trial Court ruled in the Executor‟s favor with regard to Jefferson‟s
10
claim for the motorcycle. As such, the admission of Jefferson‟s testimony with regard to
the motorcycle is immaterial to the issues raised in this appeal.
Furthermore, in his brief on appeal the Executor argues that the Trial Court erred
in allowing Jefferson‟s testimony “regarding the Promissory Note and [Deceased‟s]
signature . . . .” Even if it were error to admit such testimony and this testimony were not
considered, such error would be harmless given the record as a whole. The Note speaks
for itself and the signature on the Note was established as Deceased‟s signature by other
evidence, specifically the testimony of Ms. Barker who prepared Deceased‟s tax returns
for years, who testified that she was familiar with Deceased‟s signature, and who
identified the signature on the Note as Deceased‟s signature. Additionally, evidence
other than the testimony of Jefferson, including testimony from Ms. Barker, showed that
Deceased had not repaid the loan evidenced by the Note.
The Executor also argues in his brief on appeal that the Trial Court erred in
admitting Ms. Inman‟s testimony in violation of the Dead Man‟s statute. Ms. Inman,
however, is not a party to this suit and judgment could not be rendered either for or
against her. As such, the Dead Man‟s statute does not apply to Ms. Inman‟s testimony.
The Executor argues further in his brief on appeal that Ms. Inman “continues to be
inextricably linked with Jefferson‟s financial matters,” and, therefore, Ms. Inman and
Jefferson were involved in some sort of “familial joint venture,” which should preclude
Ms. Inman‟s testimony. The record before us on appeal, however, simply does not
support this assertion. While Ms. Inman testified that she had held some money for her
sister and that at the time of trial she was holding some money for Jefferson, which was
intended to “[p]ut her away with at death,” these facts alone are insufficient to prove a
joint venture. The record contains nothing else which would support a finding that Ms.
Inman and Jefferson were involved in some sort of “familial joint venture.” Furthermore,
a careful and thorough review of the record on appeal reveals that the objection under the
Dead Man‟s statute was raised to Ms. Inman‟s testimony that Jefferson called and told
Ms. Inman to bring money to Tennessee. The Trial Court held that this testimony did not
concern a statement or transaction with Deceased and, therefore, did not violate the Dead
Man‟s statute. We find no error in this ruling.
Next, we consider whether the Trial Court erred in finding that Jefferson‟s claim
against the Estate under the Note is valid. The Executor raises several arguments with
regard to this issue. First, the Executor argues on appeal that the Trial Court should have
found an accord and satisfaction with regard to the loan. As this Court has explained:
An accord and satisfaction is a type of contract and is governed by
the law of contracts. Cole v. Henderson, 61 Tenn. App. 390, 413, 454
11
S.W.2d 374, 384 (1969). In Lytle v. Clopton, 149 Tenn. 655, 663–664, 261
S.W. 664, 666–667 (1924), the Tennessee Supreme Court stated:
An accord is an agreement whereby one of the parties
undertakes to give or perform, and the other to accept in
satisfaction of a claim, liquidated or in dispute, and arising
either from contract or from tort, something other than or
different from what he is or considers himself entitled to; and
a satisfaction is the execution of such agreement.
.....
To constitute a valid accord and satisfaction it is also
essential that what is given or agreed to be performed shall be
offered as a satisfaction and extinction of the original
demand; that the debtor shall intend it as a satisfaction of such
obligation, and that such intention shall be made known to the
creditor in some unmistakable manner. It is equally essential
that the creditor shall have accepted it with the intention that
it should operate as a satisfaction. Both the giving and the
acceptance in satisfaction are essential elements, and if they
be lacking there can be no accord and satisfaction. The
intention of the parties, which is of course controlling, must
be determined from all the circumstances attending the
transaction.
(quoting 1 C.J. Accord and Satisfaction §§ 1 and 16 (1914)). When a
debtor clearly indicates that a check is offered upon a condition of
satisfaction of a debt, the creditor‟s endorsement and collection on the
check generally operate as an accord and satisfaction. E.g., Cole v.
Henderson, 61 Tenn. App. 390, 454 S.W.2d 374 (1969), and Continental
Insurance Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521 (1953).
The party asserting the affirmative defense of accord and satisfaction
has the burden of proving the defense by a preponderance of the evidence.
Rhea v. Marko Construction Co., 652 S.W.2d 332, 335 (Tenn.1983) and
Inland Equipment Co. v. Tennessee Foundry & Machine Co., 192 Tenn.
548, 552, 241 S.W.2d 564, 565 (1951).
R.J. Betterton Mgmt. Servs., Inc. v. Whittemore, 733 S.W.2d 880, 882 (Tenn. Ct. App.
1987).
12
The record on appeal shows that Jefferson was questioned about several checks
that Deceased wrote to her prior to executing the Note. When an objection was raised as
to relevance, the Executor‟s attorney asserted that this evidence was being introduced to
show that Deceased “paid his debts to [Jefferson].” The evidence, however, does not
show that these checks were written in payment for the Note, which was not in existence
at the time some of the checks were written. Jefferson testified that some of the checks
she was questioned about were written to her out of the account that she and Deceased
shared because the money in that account was her money. As for the checks which were
written after the Note was executed, the evidence does not show that they were intended
by Jefferson and Deceased as an accord and satisfaction. There is no evidence that
Deceased intended these checks as a satisfaction of the $50,000 loan and no evidence that
such an intention was made known to Jefferson.
The evidence also shows that at one point Deceased owed Jefferson $12,000, or
held this amount of money for her, that Jefferson requested it back, and that Deceased
eventually gave Jefferson $18,000. Jefferson testified that she was under the impression
that she only had $12,000 in the account, but that Deceased “said that, no, it was eighteen
thousand . . . .” Mr. Peavler, Deceased‟s nephew, testified that he was aware of the
$12,000 that Deceased owed to Jefferson and that Deceased “wrote [Jefferson] a check
for . . . eighteen thousand dollars ($18,000.00), and that was to give [Jefferson] the
twelve thousand (12,000) back and a couple odd thousand for this, and that, and what
have you.” There is no evidence that Deceased intended the $18,000 as a satisfaction of
the $50,000 loan and no evidence that such an intention was made known to Jefferson.
Given all of the above, the evidence in the record on appeal does not preponderate against
the Trial Court‟s implicit finding that there was no accord and satisfaction.
The Executor also argues in his brief on appeal that because Jefferson signed the
Affidavit, which states: “I, the undersigned, a beneficiary of the Estate of Dennie Lamar
Trent, do hereby make Affidavit that I have received my share of the Estate and request
that the estate be closed,” that Jefferson was admitting that she no longer had any
outstanding claims against the Estate. The evidence in the record on appeal shows that
under the Will Jefferson was to receive the D.B. Trent account and that at the time she
signed the Affidavit Jefferson acknowledged that she had indeed received the money in
that account. The plain and unambiguous language of the Affidavit specifically states
that Jefferson had “received [her] share of the Estate . . . .” The Affidavit does not state
anything with regard to any potential claims against the Estate. It merely refers to
Jefferson‟s “share of the Estate,” language which clearly refers to the bequest left to
Jefferson under the Will.
In his brief on appeal, the Executor quotes Quality Care Nursing Servs., Inc. v.
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Coleman, 728 S.W.2d 1, 4 (Tenn. 1987) wherein it states: “If a written instrument stating
an intention to discharge a debt is properly accepted by a creditor, the debt is then
discharged whether it is disputed or not.” In the case now before us, however, there is no
written instrument stating an intention to discharge the $50,000 loan debt. In fact, the
evidence shows that at the time that Jefferson executed the Affidavit she understood that
the Affidavit concerned only the D.B. Trent account. Furthermore, the Executor testified
that at the time he gave Jefferson the Affidavit to execute he was unaware even of the
existence of the Note. As such, the Affidavit could not have been intended by the parties
as a discharge of the $50,000 loan debt.
The Executor also argues that the Trial Court erred in finding the Note valid
because the statute of limitations should bar Jefferson‟s claim. As pertinent to this issue,
the Note states: “pay upon request” and does not state any time for payment. “A promise
or order is „payable on demand‟ if it (i) states that it is payable on demand or at sight, or
otherwise indicates that it is payable at the will of the holder, or (ii) does not state any
time of payment.” Tenn. Code Ann. 47-3-108(a) (2001). Thus, the Note is payable on
demand. The statute of limitations for a note payable on demand is contained in Tenn.
Code Ann. § 47-3-118, which provides:
Except as provided in subsection (d) or (e), if demand for payment is made
to the maker of a note payable on demand, an action to enforce the
obligation of a party to pay the note must be commenced within six (6)
years after the demand. If no demand for payment is made to the maker, an
action to enforce the note is barred if neither principal nor interest on the
note has been paid for a continuous period of ten (10) years.
Tenn. Code Ann. § 47-3-118(b) (2001).
The evidence in the record on appeal does not show that Jefferson made a demand,
or request, for payment of the loan until she filed her claim against the Estate. As no
demand for payment was made, the applicable statute of limitations for an action on the
Note would be ten years. The Note was executed in 2007. As such, the statute of
limitations would not bar Jefferson‟s claim filed in 2013.
The Executor also argues that the Trial Court erred in allowing Ms. Barker to
testify about Deceased‟s signature after Ms. Barker stated that she was not a handwriting
expert. The Executor, however, has cited no law which requires that a signature must be
identified by a handwriting expert, and in fact, our research discloses the contrary. See
State v. Williams, 690 S.W.2d 517, 524 (Tenn. 1985) (holding no error in allowing
testimony of lay witness as to signature); Allen v. State, 22 Tenn. 367, 368 (1842)
(stating: “All that the rule of law contended for requires is that a witness who is called to
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prove handwriting shall be able to show that he has had such means of knowledge as to
furnish a reasonable presumption that he is qualified to form an opinion on the subject.”).
Ms. Barker testified that she was familiar with Deceased‟s signature and could
“[a]bsolutely” identify it because she had witnessed him signing documents “[m]any
times.” Ms. Barker identified the signature on the Note as Deceased‟s.
We find and hold that the evidence does not preponderate against the Trial Court‟s
findings and decision that Jefferson‟s claim against the Estate under the Note is valid.
We therefore, affirm the Trial Court‟s January 6, 2015 order.
Finally, we consider Jefferson‟s request for an award of attorney‟s fees on appeal.
In Cracker Barrel Old Country Store, Inc. v. Epperson, our Supreme Court explained:
Tennessee, like most jurisdictions, adheres to the “American rule”
for award of attorney fees. John Kohl & Co. v. Dearborn & Ewing, 977
S.W.2d 528, 534 (Tenn. 1998); Pullman Standard, Inc. v. Abex Corp., 693
S.W.2d 336, 338 (Tenn. 1985). Under the American rule, a party in a civil
action may recover attorney fees only if: (1) a contractual or statutory
provision creates a right to recover attorney fees; or (2) some other
recognized exception to the American rule applies, allowing for recovery of
such fees in a particular case. Taylor [v. Fezell], 158 S.W.3d [352] at 359 [
(Tenn. 2005) ]; John Kohl, 977 S.W.2d at 534.
Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009)
(footnote omitted).
As pertinent to this issue, the Note provides: “If Lender prevails in a lawsuit to
collect on this note, Borrower agrees to pay Lender‟s attorney fees in an amount the court
finds to be just and reasonable.” As we have affirmed the Trial Court‟s holding that
Jefferson‟s claim under the Note is valid, and a contractual provision in the Note creates a
right to recover attorney fees in this case, we award Jefferson her attorney‟s fees on
appeal. We remand this case to the Trial Court to determine the appropriate amount of an
award of attorney‟s fees on appeal.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for the determination of an appropriate amount of an award to Jefferson of
her attorney‟s fees on appeal and for collection of the costs below. The costs on appeal
are assessed against the appellant, Barry Trent, Executor of the Estate of Dennie Lamar
Trent, and his surety.
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D. MICHAEL SWINEY, CHIEF JUDGE
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