In re Estate of Harold Curtis Morrison

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 23, 2015
IN RE ESTATE OF HAROLD CURTIS MORRISON
Appeal from the Chancery Court for Rhea County, Probate Division
No. 12PR2111 Ben H. Cantrell, Senior Judge
No. E2014-00764-COA-R3-CV-FILED-MAY 14, 2015
The decedent in this estate action made inter vivos transfers of all his real and personal
property to the defendant, who was the decedent‟s friend and caretaker. Following the
decedent‟s death, his brother was appointed as administrator of the decedent‟s estate.
The decedent‟s brother filed the instant action, questioning whether the transfers of
property by the decedent were the result of undue influence by the defendant. The trial
court determined that there existed no confidential relationship between the decedent and
the defendant. The court ultimately found that no undue influence had been shown. The
decedent‟s brother appeals that determination. He also appeals the trial court‟s ruling
regarding an evidentiary matter and motions seeking the trial judge‟s recusal. Discerning
no error, we affirm the trial court‟s judgment in all respects.
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 CHARLES D.
SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.
James D.R. Roberts, Jr., and Janet L. Layman, Nashville, Tennessee, for the appellants,
Estate of Harold Curtis Morrison, by and through its administrator, Leonard Morrison,
and Leonard Morrison, individually.
Howard L. Upchurch, Pikeville, Tennessee, for the appellee, Ronnie Jordan.
OPINION
I. Factual and Procedural Background
The decedent, Harold Curtis Morrison (“Decedent”), died on May 25, 2012, at age
seventy. Decedent never married and had no children. At the time of his death,
Decedent was in possession of two large tracts of real property, one of which was given
to him by his parents before their deaths, and the other purchased by Decedent with
personal funds. Decedent also possessed a significant amount of personalty, including
tractors and other farm equipment. On May 29, 2012, Decedent‟s brother, Leonard
Morrison, filed a petition in the Chancery Court for Rhea County, Probate Division,
seeking to be appointed as administrator of Decedent‟s estate and stating that he was
Decedent‟s only next of kin. The trial court entered an order appointing Mr. Morrison
administrator of Decedent‟s estate later that day. Also on that day, Ronnie H. Jordan, Sr.,
recorded two quitclaim deeds that had been executed by Decedent on August 8, 2011.
These deeds transferred title regarding all of Decedent‟s real property to Mr. Jordan, with
Decedent retaining a life estate. Mr. Jordan also recorded an assignment of a deed of
trust held by Decedent.
On May 30, 2012, Mr. Jordan filed a claim against Decedent‟s estate. Mr. Jordan
asserted that he was also in possession of a bill of sale that transferred all of Decedent‟s
personal property to Mr. Jordan. On May 31, 2012, Mr. Morrison, acting in his capacity
as administrator of Decedent‟s estate, filed the present action against Mr. Jordan,
asserting that the transfers of real and personal property were the result of Mr. Jordan‟s
undue influence upon Decedent. Mr. Morrison sought and was granted an injunction to
enjoin Mr. Jordan from selling or conveying the property at issue.
On October 5, 2012, the trial court entered an order sua sponte, recusing all judges
of the Twelfth Judicial District from adjudicating the case at bar. The Tennessee
Supreme Court entered an order appointing Senior Judge Ben H. Cantrell to hear the
matter. Mr. Morrison subsequently filed a motion seeking Judge Cantrell‟s recusal,
based on Judge Cantrell‟s involvement in a prior unrelated matter involving Mr.
Morrison‟s counsel. The motion to recuse was denied.
The trial court conducted a hearing on the merits on November 18 and 19, 2013.
At the outset of trial, the court permitted Mr. Morrison to be added as a party plaintiff in
his individual capacity. The trial court then considered testimony from numerous
witnesses, including Mr. Morrison, several of Decedent‟s friends and neighbors, and
Decedent‟s former attorney, who had prepared the deeds, assignment, and bill of sale in
question. Decedent‟s treating physician and another of Decedent‟s former attorneys
provided proof via depositions.
The witnesses all testified that Decedent had labored on the farm for most of his
life and that he continued to do so until his physical health began to decline a few years
preceding his death. Decedent was described as independent and industrious, single-
handedly maintaining both the farm he acquired from his parents and the farm he
purchased. Decedent‟s health began to decline six to seven years before his death when
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Decedent noticeably suffered from leg and knee problems and experienced trouble with
his heart. Mr. Jordan moved into a small residence on Decedent‟s property in
approximately 2005. Mr. Jordan assisted Decedent on the farm, also assuming the role of
personal caretaker for Decedent during the months prior to Decedent‟s death. Despite
Decedent‟s failing health, the witnesses appeared to generally agree that his mental status
showed no deterioration. The only exceptions included: (1) the testimony of one witness
who related that Decedent had difficulty in August 2010 operating an electronic voting
machine, although Decedent knew for whom he wished to vote; and (2) the testimony of
another witness who described Decedent as seeming overmedicated during a visit in
February 2012, three months before Decedent‟s death. Mr. Morrison also testified that
on a few occasions when he spoke to Decedent by telephone in the months preceding his
death, Decedent mumbled and sounded overmedicated.
All of the witnesses, however, agreed that Decedent was stubborn, headstrong, and
opinionated. They further indicated that although Decedent came to depend upon Mr.
Jordan‟s help in the months before his death, the two men maintained a good relationship.
They also explained that Decedent never complained that Mr. Jordan was trying to
influence him in any way. Mr. Morrison admitted during his testimony that “if
[Decedent] didn‟t want to do it, he wasn‟t going to do it.” Mr. Morrison claimed that he
and his brother enjoyed a good relationship, but he acknowledged that Decedent had once
paid a tax bill on Mr. Morrison‟s behalf in the amount of $16,000, which Mr. Morrison
asserted he repaid with cash and cattle. Mr. Morrison also admitted that he did not
personally provide care for Decedent, run errands for him, or take him to the doctor,
leaving those responsibilities instead to Mr. Jordan.
Decedent‟s treating physician, Dr. Christopher Horton, testified that Decedent
became his patient about six years prior to Decedent‟s death. According to Dr. Horton,
while Decedent‟s physical health deteriorated during that time, his mental status did not.
Dr. Horton reported that although Decedent was prescribed narcotic medication in later
years for chronic leg pain, he did not believe that Decedent abused this medication.
According to Dr. Horton, when he saw Decedent in the office on August 3 and 9, 2011,
there was nothing concerning Decedent‟s mental state that would suggest change or
deterioration. Dr. Horton also testified that Decedent never appeared under someone
else‟s influence, adding that Decedent demonstrated nothing to cause Dr. Horton to
conclude that Decedent was susceptible to the influence of others.
Decedent‟s former attorney, Arnold Fitzgerald, testified at trial, explaining that he
had known Decedent and Mr. Morrison since 1954. Mr. Fitzgerald stated that Decedent
initially came alone to his office in 2011, seeking preparation of the documents
transferring all of his real and personal property to Mr. Jordan. According to Mr.
Fitzgerald, Decedent wished to transfer his real property by deed because he did not want
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to have a will that Mr. Morrison could contest. Mr. Fitzgerald further related that
Decedent indicated that “he didn‟t want to leave even his last pair of dirty socks for
Leonard Morrison.” Concerning the matter, Mr. Fitzgerald testified that he prepared the
documents according to Decedent‟s directions. Decedent traveled to Mr. Fitzgerald‟s
office a second occasion to discuss further the documents before appearing on a third
occasion to sign them. Mr. Fitzgerald related that he met with Decedent alone for a total
of approximately two hours during the first two visits, at which times Decedent informed
Mr. Fitzgerald that he did not desire to leave anything to Mr. Morrison because Mr.
Morrison only came around when he wanted money. Decedent also reported to Mr.
Fitzgerald that Mr. Morrison had borrowed money from him and never repaid it.
Mr. Fitzgerald opined that during their conferences, Decedent was lucid, clear-
thinking, and knew exactly how he wished to dispose of his property. As Mr. Fitzgerald
explained, although the three meetings spanned a period of several weeks, Decedent‟s
mental status and his expressed wishes never changed. According to Mr. Fitzgerald,
Decedent was strong-willed and seemed very cognizant of the nature of the meetings.
Mr. Fitzgerald reported that he never observed anything leading him to believe that
Decedent was incompetent or being influenced by anyone.
Two of Decedent‟s close friends, Henry and Janet Pickett, corroborated Mr.
Fitzgerald‟s testimony regarding Decedent‟s intentions. The Picketts testified that
Decedent was upset because Mr. Morrison owed him money that had never been repaid
and only came around if he wanted something. The Picketts further related that Decedent
did not wish to leave any of his property to his brother. As further explained by the
Picketts, Mr. Jordan transported Decedent anywhere he desired, including numerous
doctors‟ appointments. The two men appeared to be good friends. According to the
Picketts, Mr. Jordan seemed to provide excellent care for Decedent. The Picketts also
testified that while they saw Decedent regularly during the last twelve to thirteen years of
his life, they never observed any mental change or degradation. The Picketts also
described Decedent as strong-willed, independent, and not easily influenced.
At the conclusion of trial, the court entered a memorandum opinion and order
specifically finding that there existed no confidential relationship between Decedent and
Mr. Jordan, as would be required in order to establish undue influence. The court stated
in pertinent part:
The proof in this case falls far short of establishing a confidential
relationship between [Decedent] and Ronnie Jordan. All the proof shows
that [Decedent] retained his independent personality until the end of his
life. To conclude that anyone possessed the ability to persuade him to do
something he didn‟t like would be against the vast weight of the evidence.
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In addition, even if a confidential relationship existed, the dominant
party can receive benefits from the weaker party by showing that the
relationship was not abused and that the weaker party received independent
advice. Williamson v. Upchurch, 768 S.W.2d 265 (Tenn. Ct. App. 1988).
In this case, [Decedent] did receive independent advice and there is no
proof that Mr. Jordan abused his relationship with [Decedent]. We come
back to the fact that [Decedent] made his own decisions and used his
property as he pleased. His lawyer testified that he wished to use the deeds
rather than a will because “a will can always be changed.”
Accordingly, the trial court dismissed Mr. Morrison‟s action against Mr. Jordan, with the
exception of awarding Mr. Morrison possession of his personal property located on
Decedent‟s farm.
Following the court‟s ruling, Mr. Morrison filed several motions, including a
motion to alter or amend pursuant to Tennessee Rule of Civil Procedure 59.04 and a
renewed motion seeking recusal of the trial judge. The trial court denied Mr. Morrison‟s
post-trial motions. While Mr. Morrison timely appealed, he thereafter filed a second
renewed motion for recusal, which the trial court likewise denied.
II. Issues Presented
Mr. Morrison presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred in finding that no confidential relationship existed
between Decedent and Mr. Jordan.
2. Whether the trial court erred in its findings of fact based upon the record and
testimony at trial.
3. Whether the trial court erred in considering Mr. Fitzgerald‟s testimony.
4. Whether the trial judge erred in refusing to grant a recusal.
III. Standard of Review
In this non-jury case, our review is de novo upon the record of the proceedings
below; however, that record comes to us with a presumption that the trial court‟s factual
findings are correct. See Tenn. R. App. P. 13(d). We must honor this presumption unless
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we find that the evidence preponderates against the trial court‟s findings. See Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). We review questions of
law de novo with no presumption of correctness. See Tenn. R. App. P. 13(d).
We further note that “trial courts are able to observe witnesses as they testify and
to assess their demeanor, which best situates trial judges to evaluate witness credibility.
Thus, trial courts are in the most favorable position to resolve factual disputes hinging on
credibility determinations.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999) (internal citations omitted). As such, findings of the trial court regarding the
credibility of witnesses and the weight to be given their testimony are entitled to great
deference on appeal. See Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App.
1991).
IV. Confidential Relationship and Undue Influence
Mr. Morrison asserts that the trial court erred in determining that no confidential
relationship existed between Decedent and Mr. Jordan. The issue of whether such a
confidential relationship existed is a question of fact. See In re Estate of Price, 273
S.W.3d 113, 125 (Tenn. Ct. App. 2008). This Court has previously elucidated:
Confidential relationships can assume a variety of forms, and thus
the courts have been hesitant to define precisely what a confidential
relationship is. Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct.
App. 1974). In general terms, it is any relationship that gives one person
the ability to exercise dominion and control over another. Givens v.
Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 410 (Tenn. 2002);
Childress v. Currie, 74 S.W.3d at 328; Mitchell v. Smith, 779 S.W.2d at
389. It is not merely a relationship of mutual trust and confidence, but
rather it is one
where confidence is placed by one in the other and the
recipient of that confidence is the dominant personality, with
ability, because of that confidence, to influence and exercise
dominion and control over the weaker or dominated party.
Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973).
Fiduciary relationships are confidential per se because of the legal
status of the parties. They automatically give rise to a presumption of
undue influence with regard to transactions that benefit the fiduciary.
Examples of such fiduciary relationships include that between guardian and
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ward, attorney and client, or conservator and incompetent. Kelly v. Allen,
558 S.W.2d 845, 848 (Tenn. 1977); Mitchell v. Smith, 779 S.W.2d at 389;
Parham v. Walker, 568 S.W.2d 622, 625 (Tenn. Ct. App. 1978).
Relationships not fiduciary in nature, even those that are inherently
confidential, such as those between family members, are not confidential
per se and require proof of the elements of dominion and control in order to
establish the existence of a confidential relationship. Matlock v. Simpson,
902 S.W.2d at 385-86; Kelly v. Allen, 558 S.W.2d at 848.
Kelley v. Johns, 96 S.W.3d 189, 197-98 (Tenn. Ct. App. 2002). Further, the burden of
proof regarding a confidential relationship rests upon the party claiming the existence of
such a relationship, which in this case would be Mr. Morrison. See Brown v. Weik, 725
S.W.2d 938, 945 (Tenn. Ct. App. 1983). As this Court has explained:
A confidential relationship in this context is not merely a relationship of
mutual trust and confidence, but rather a relationship in which confidence is
placed in one who is the dominant personality in the relationship, with the
ability, because of that confidence, to exercise dominion and control over
the weaker or dominated party. Iacometti v. Frassinelli, 494 S.W.2d 496,
499 (Tenn. Ct. App. 1973).
[T]here must be a showing that there were present the
elements of dominion and control by the stronger over the
weaker, or there must be a showing of senility or physical and
mental deterioration of the donor or that fraud or duress was
involved, or other conditions which would tend to establish
that the free agency of the donor was destroyed and the will
of the donee was substituted therefor.
Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977) (emphasis added).
Evidence of one party‟s deteriorated mental or physical condition will
substantiate the existence of a confidential relationship if the condition
renders the weaker party unable to guard against the dominant party‟s
imposition or undue influence. Williamson v. Upchurch, 768 S.W.2d 265,
270 (Tenn. Ct. App. 1988). Still, “[t]he core definition of a confidential
relationship requires proof of dominion and control,” and the question of
whether undue influence existed should be decided by the application of
sound principles and good sense to the facts of each case. Childress v.
Currie, 74 S.W.3d 324, 329 (Tenn. 2002). In undue influence cases, the
question for us “is not whether the weaker party‟s decision was a good one,
or even whether he knew what he was doing at the time.” Williamson v.
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Upchurch, 768 S.W.2d at 270. Instead, we must determine “whether the
weaker party‟s decision was a free and independent one or whether it was
induced by the dominant party.” Id.
In re Estate of Reynolds, No. W2006-01076-COA-R3-CV, 2007 WL 2597623 at *8
(Tenn. Ct. App. Sept. 11, 2007).
In this case, it is undisputed that there was no fiduciary relationship between
Decedent and Mr. Jordan. See Kelley, 96 S.W.3d at 197-98. Further, upon our thorough
review, the record demonstrates that there was no proof that Mr. Jordan exercised
dominion or control over Decedent. According to the preponderance of the evidence,
Decedent was the dominant personality in this relationship, not Mr. Jordan. Further,
Decedent showed no signs of mental deterioration or susceptibility to influence. The
witnesses, including Mr. Morrison, agreed that Decedent was strong-willed and
independent, continuing as such until his death. Ergo, there was a dearth of evidence that
Mr. Jordan‟s will was or could have been substituted for that of Decedent. Rather, the
weight of the testimony indicated that Decedent‟s decisions regarding his property were
free and independent ones. We conclude that the evidence does not preponderate against
the trial court‟s finding that no confidential relationship existed between Decedent and
Mr. Jordan. Because a claim of undue influence is dependent upon the existence of a
confidential relationship, see Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995),
Mr. Morrison cannot meet the burden of proof regarding his claim of undue influence.
The trial court did not err in dismissing this claim.
We further note that Mr. Morrison‟s second issue, questioning whether the trial
court made erroneous findings of fact in its analysis of the confidential relationship issue,
is disposed of by our determination regarding the preponderance of the evidence. Based
upon our thorough review of the record, we conclude that the evidence preponderates in
favor of the trial court‟s factual findings. Accordingly, Mr. Morrison‟s first two issues
are determined to be without merit.
V. Testimony of Attorney Fitzgerald
Mr. Morrison asserts that the trial court erred in allowing Mr. Fitzgerald to testify
regarding what he was told by Decedent because (1) such testimony is hearsay and (2)
such testimony violates the Rules of Professional Conduct with regard to client
confidentiality. We note at the outset that “admissibility or exclusion of evidence rests
within the sound discretion of the trial court, which should be reversed only for abuse of
that discretion.” Austin v. City of Memphis, 684 S.W.2d 624, 634 (Tenn. Ct. App. 1984).
“An abuse of discretion occurs when the trial court causes an injustice by applying an
incorrect legal standard, reaches an illogical result, resolves the case on a clearly
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erroneous assessment of the evidence, or relies on reasoning that causes an injustice.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).
At trial, Mr. Morrison‟s counsel objected to Mr. Fitzgerald‟s testimony regarding
his conversations with Decedent prior to Decedent‟s execution of the documents in
question. Counsel asserted that Decedent‟s statements constituted inadmissible hearsay.
The trial court disagreed and overruled the objection. We find no abuse of discretion in
the trial court‟s ruling regarding this evidence.
Tennessee Rule of Evidence 803 establishes certain exceptions to the hearsay rule.
Specifically, Tennessee Rule of Evidence 803(3) provides an exception for:
A statement of the declarant‟s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), . . . .
The Advisory Commission Comments to the Rule provide that “declarations of mental
state will be admissible to prove mental state at issue or subsequent conduct consistent
with that mental state.”
In the case at bar, Mr. Fitzgerald testified as to statements made by Decedent
regarding why he desired to have certain documents drafted transferring his property to
Mr. Jordan. Such statements included: (1) Decedent did not want a will because such a
testamentary instrument could be contested; (2) Decedent was upset that his brother did
not repay him the tax obligation that Decedent paid on his brother‟s behalf; (3) Decedent
did not wish for any of his property to go to his brother; and (4) Decedent desired Mr.
Jordan to have all of his property. These statements were offered to demonstrate
Decedent‟s intent in executing the documents in question.
We conclude that these statements constitute an exception to the hearsay rule
because they are statements of Decedent‟s then existing state of mind pursuant to
Tennessee Rule of Evidence 803(3). As this Court recognized in Martindale v. Union
Planters Nat’l Bank, No. 02A01-9502-CH-00030, 1996 WL 266650 at *2 (Tenn. Ct.
App. May 21, 1996), “[t]his exception has long been recognized as a means through
which to admit into evidence a declarant‟s state of mind in order to prove subsequent
conduct that is consistent with that mental state.” See also In re Estate of Nelson, No.
W2006-00030-COA-R3-CV, 2007 WL 851265 at *13 (Tenn. Ct. App. Mar. 22, 2007)
(holding that a bank officer‟s testimony regarding statements made by the decedent when
purchasing certificates of deposit was admissible pursuant to Tennessee Rule of Evidence
803(3)); Storey v. Tolson, No. 1414, 1991 WL 102683 at *3 (Tenn. Ct. App. June 17,
1991) (holding that the state of mind exception could have been applied to allow the
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decedent‟s daughter to testify regarding what the decedent said at the time he changed the
ownership of his bank accounts); Gray v. Gray, No. 03A01-9101-CV-00003, 1991 WL
51399 at *2 (Tenn. Ct. App. Apr. 11, 1991) (holding that an insurance agent‟s testimony
regarding statements made by the decedent when naming beneficiaries for his life
insurance policy was admissible pursuant to Tennessee Rule of Evidence 803(3)). We
therefore conclude that the trial court properly ruled that this testimony did not constitute
inadmissible hearsay.
Mr. Morrison also contends that Mr. Fitzgerald‟s testimony should have been
disallowed because it violated the Rules of Professional Conduct with regard to client
confidentiality. Specifically, Rule of Professional Conduct 1.9 (c) provides:
A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter reveal information relating to the representation or use such
information to the disadvantage of the former client unless (1) the former
client gives informed consent, confirmed in writing, or (2) these Rules
would permit or require the lawyer to do so with respect to a client, or (3)
the information has become generally known.
Tenn. R. Sup. Ct. Rule 8, RPC 1.9. In this case, Mr. Fitzgerald did not utilize the
information he gained from the Decedent to the Decedent‟s disadvantage; rather, he
disclosed the information in order to ensure that Decedent‟s wishes regarding transfer of
his property were fulfilled. Further, the evidence demonstrated that Decedent had
disclosed this same information to other individuals as well.
This case is similar to Estate of Hamilton v. Morris, 67 S.W.3d 786 (Tenn. Ct.
App. 2001), wherein the decedent executed a will in 1987 and then executed a
substantially different will five years later. The devisees under the earlier will claimed
that the more recent will was the result of undue influence, and the attorney who drafted
the more recent will was asked to testify regarding its origin. Id. Concerning the issue of
attorney-client privilege, this Court explained:
[M]ost courts presume that the privilege survives the death of the client, but
they view testamentary disclosure of communications as an exception to the
privilege. Id. The Swidler Court quoted from United States v. Osborn, 561
F.2d 1334, 1340 (9th Cir. 1977):
[T]he general rule with respect to confidential
communications . . . is that such communications are
privileged during the testator‟s lifetime and, also, after the
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testator‟s death unless sought to be disclosed in litigation
between the testator‟s heirs . . . .
524 U.S. at 405, 118 S. Ct. 2081 (citations omitted). The Court went on to
say that, “The rationale for such disclosure is that it furthers the client‟s
intent.” Id.
The parties have not cited, nor has our research revealed, a
Tennessee case dealing with the precise point before us. However,
although “the privilege accorded certain communications between . . .
attorney and client, has been long and frequently upheld by the Courts of
this State, it has also been frequently recognized that there are many
exceptions to this privilege.” Hazlett v. Bryant, 192 Tenn. 251, 241 S.W.2d
121, 123 (1951).
In Glover v. Patten, 165 U.S. 394, 17 S. Ct. 411, 41 L. Ed. 760
(1897), a case which has not been overruled in over one-hundred years, the
United States Supreme Court set out what we believe is the applicable rule
in the case at bar:
. . . we are of the opinion that, in a suit between the devisees
under a will, statements made by the deceased to counsel
respecting the execution of the will, or other similar
document, are not privileged. While such communications
might be privileged if offered by third persons to establish
claims against an estate, they are not within the reason of the
rule requiring their exclusion, when the contest is between
the heirs or next of kin.
165 U.S. at 406, 17 S. Ct. 411 (emphasis added).
81 Am.Jur.2d Witnesses § 389 states:
Factors affecting applicability; client’s death
Where the client is dead and the controversy arises
concerning the validity of the deceased client‟s will, or
between the claimants thereunder, no privilege exists as to
communications between the testator and his attorney
concerning the drafting of a will. Thus, communications by a
client to the attorney who drafted his will, concerning the will
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and transactions leading to its execution, generally are not,
after the client‟s death, protected as privileged
communications in a suit between the testator‟s heirs,
devisees, or other parties who claim under him, although
there is authority for the proposition that the privilege
protecting a client‟s communications to the attorney who
drew his will may be invoked against claimants adverse to the
interests of the client, his estate, or his successors.
Appellants assert that this is an “inter-dispute” between heirs and/or
devisees versus non-heirs and/or non-devisees, and that, therefore, the
attorney-client privilege is not waived. We must disagree. The allowance
of the exception is to help establish the intent of the testatrix or testator, and
we can see no reason for a distinction made by Appellants as to the disputes
between those designated as heirs, devisees, non-heirs, or non-devisees.
The testamentary exception should be applied to such disputes concerning
all potential beneficiaries.
Estate of Hamilton, 67 S.W.3d at 791-792 (all emphasis in original).
Although the case at bar does not involve a testamentary instrument, we find the
reasoning in Estate of Hamilton to be equally applicable here inasmuch as the
controversy involves two potential beneficiaries of Decedent‟s property. Mr. Fitzgerald
presented testimony concerning Decedent‟s intent in executing the documents at issue in
order to substantiate Decedent‟s desires regarding his property rather than attack the
validity of the documents or otherwise thwart the Decedent‟s wishes. For all of the above
reasons, we conclude that the trial court did not err in allowing Mr. Fitzgerald‟s
testimony to be admitted in this matter.
VI. Recusal
During the course of litigation, Mr. Morrison filed three separate motions seeking
recusal of the trial judge. Each motion was premised on the trial judge‟s alleged bias
against Mr. Morrison‟s counsel, Mr. Roberts. According to the motions, Judge Cantrell
had previously been appointed to hear the appeal of an action between Mr. Roberts and
the Board of Professional Responsibility, despite the fact that Judge Cantrell had
formerly served as a mediator in a related matter. Mr. Roberts filed a motion seeking
Judge Cantrell‟s recusal in that earlier action, based on Judge Cantrell‟s prior status as a
mediator in the related matter and the fact that Judge Cantrell‟s residency violated the
residency requirements of Tenn. R. Sup. Ct. 9, §1.5. While Judge Cantrell denied the
recusal motion, the Supreme Court disagreed and appointed another judge to hear the
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appeal. Mr. Morrison thus questioned Judge Cantrell‟s ability to be impartial in this
action regarding Mr. Roberts given this history of events and separate litigation.
The trial court denied the initial motion for recusal, stating in pertinent part:
Neither ground for recusal in the other case involved any personal
bias or prejudice toward the attorney. Thus, this motion is based on an
assumption that the court would be prejudiced toward the Administrator‟s
attorney because he got the Supreme Court to reverse the order denying the
motion to recuse in the other case.
No ordinarily prudent person knowing the true facts would conclude
that an experienced judge would be so incensed over a reversal that he or
she could not be fair and impartial in another case involving that attorney.
This Court harbors no such animosity, having been through this experience
more than once before.
The Court finds that the motion is not well taken. It is therefore,
ORDERED that the motion is DENIED.
Mr. Morrison subsequently filed two similar motions to recuse following the trial,
both of which were denied. Mr. Morrison contends that the trial court erred in denying
his motions for recusal. We review the trial court‟s disposition of a motion for recusal
under a de novo standard of review. See Tenn. Sup. Ct. R. 10B § 2.06 (effective as to
disposition of motions for recusal filed on or after July 1, 2012). As our Supreme Court
has explained:
Tennessee Supreme Court Rule 10, Canon 3(E)(1) states, “A judge
shall disqualify himself or herself in a proceeding in which the judge‟s
impartiality might reasonably be questioned, including but not limited to
instances where: (a) the judge has a personal bias or prejudice concerning a
party or a party‟s lawyer . . . .”1 We have held that a recusal motion should
be granted when “the judge has any doubt as to his or her ability to preside
impartially in the case” or “„when a person of ordinary prudence in the
judge‟s position, knowing all of the facts known to the judge, would find a
reasonable basis for questioning the judge‟s impartiality.‟” Davis [v.
Liberty Mut. Ins. Co.], 38 S.W.3d [560,] 564-65 [(Tenn. 2001)] (quoting
Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). Even if a
judge believes he can be fair and impartial, the judge should disqualify
1
Effective July 1, 2012, this provision is contained within Tenn. Sup. Ct. R. 10, Canon 2.11(A)(1).
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himself when “„the judge‟s impartiality might be reasonably questioned‟”
because “the appearance of bias is as injurious to the integrity of the
judicial system as actual bias.” Id. (quoting Tenn. Sup. Ct. R. 10, Canon
3(E)(1)).
Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009); see also Malmquist v. Malmquist, 415
S.W.3d 826, 838-39 (Tenn. Ct. App. 2011). “Adverse rulings and „the mere fact that a
witness takes offense at the court‟s assessment of the witness,‟ do not provide grounds
for recusal, however, in light of the „adversarial nature of litigation.‟” Watson v. City of
Jackson, 448 S.W.3d 919, 2014 WL 575915 at *9 (Tenn. Ct. App. 2014) (quoting Davis
v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001)).
Upon our careful and thorough review of the record, including the transcript of the
trial conducted in this matter, we discern no indication of prejudice expressed or implied
by the judge. See, e.g., Watson, 448 S.W.3d 919, 2014 WL 575915 at *13 (“Although
we are cognizant of the fact that the trial judge declined to grant any of [the appellant‟s]
pro se post-trial motions, it is well-settled that „[a]dverse rulings by a trial judge . . . are
not usually sufficient to establish bias.‟” (quoting Ingram v. Sohr, No. M2012-00782-
COA-R3-CV, 2013 WL 3968155 at *31 (Tenn. Ct. App. July 31, 2013)); Malmquist, 415
S.W.3d at 840 (“The fact that [the trial court judge] helmed this litigation, without
apparent bias, even in the face of difficult litigants and protracted litigation, supports his
discretionary decision to remain on the case to see it concluded.”). The trial court did not
err by denying Mr. Morrison‟s motions for recusal.
VII. Motion to Strike
Following the submission of his principal brief, Mr. Morrison filed a “Notice of
Filing” with this Court and attached a copy of a complaint he filed against Mr. Fitzgerald
on October 29, 2014. In response, Mr. Jordan filed a motion requesting that this notice
and attached complaint be stricken. The respective motion was deferred to this panel for
decision. Mr. Morrison‟s filing essentially asks this Court to consider post-judgment
facts that are not a part of the appellate record in this case.
In Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn. 1984), our Supreme Court
explained that when analyzing whether to consider post-judgment facts in accordance
with Tennessee Rule of Appellate Procedure 14, this Court should not consider “evidence
which it would be possible to controvert or dispute in the trial court, nor concerning the
effect of which there might be differences of opinion, or from which different
conclusions could possibly be drawn.” Because the complaint submitted does not contain
facts capable of ready demonstration, but rather contains facts that would be able to be
disputed at the trial court level, we hereby grant the motion to strike this filing.
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VIII. Conclusion
For the reasons stated above, we affirm the trial court‟s judgment and remand the
case to the trial court for enforcement of said judgment and collection of costs assessed
below. Costs on appeal are taxed to the appellants, Estate of Harold Curtis Morrison, by
and through its administrator, Leonard Morrison, and Leonard Morrison, individually.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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