Hunter Ryan Ellis v. Christina L. Duggan ( 2021 )

09/10/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 21, 2021 Session
HUNTER RYAN ELLIS, ET AL. v. CHRISTINA L. DUGGAN, ET AL.
Appeal from the Chancery Court for Hamilton County
No. 18-0351 Jeffrey M. Atherton, Chancellor
___________________________________
No. E2020-00723-COA-R3-CV
___________________________________
This is a case involving allegations of undue influence. The plaintiffs are the grandchildren
of the decedent. The sole defendant at issue on appeal is the decedent’s niece, who also
held power of attorney for the decedent during the last years of her life. The transaction at
issue occurred roughly six months before the decedent died and consisted of a gift of
$176,000 to the niece for the purchase of a house. The executor of the decedent’s estate
declined to pursue the claim for undue influence and assigned the cause of action to the
decedent’s four grandsons, who were the residuary beneficiaries of the estate. After a five-
day bench trial, the trial court found that a confidential relationship existed between the
decedent and the defendant niece and that multiple suspicious circumstances existed to
support a finding of undue influence. As such, the trial court entered a judgment against
the defendant niece for $176,000. However, the trial court denied the plaintiffs’ request
for attorney fees on the basis that they were “not available under the current caselaw
relating to undue influence.” The defendant niece appeals, challenging the finding of
undue influence. The plaintiffs appeal the denial of their request for attorney fees. Having
carefully reviewed the voluminous record, we affirm the finding of undue influence and
the judgment against the defendant niece. We reverse the denial of the plaintiffs’ request
for attorney fees and remand for a reasonable award of attorney fees incurred by the
plaintiffs in the trial court and on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part, Reversed in Part, and Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KRISTI M. DAVIS, J., joined.
Michael M. Thomas and W. Neil Thomas, III, Chattanooga, Tennessee, for the appellant,
Christina L. Duggan.
David L. Moss, Signal Mountain, Tennessee, for the appellees, Hunter Ryan Ellis and
Nicholas Ray Ellis.
Linda J. Norwood, Chattanooga, Tennessee, for the appellee, Michael David Ellis, II,
individually and as guardian for William David Ellis.
OPINION
I. FACTS & PROCEDURAL HISTORY
Jean Ellis was born in 1931 and married O. David “Dave” Ellis in 1950. Jean and
Dave had two children, Rick and Mike.1 During their fifty-year marriage, Jean and Dave
accumulated considerable wealth. When Dave died in 2002, a substantial portion of that
wealth passed to Jean. Dave’s will also set up a family trust for the benefit of Jean during
her lifetime, with the remainder to go to his heirs. After Dave died, Jean resided alone on
the family farm in Signal Mountain, Tennessee, and one of her grandsons resided in a
smaller home on the farm. Jean’s younger sister, Judy Morgan, lived nearby in Soddy
Daisy. Judy’s daughter, Christina L. Duggan, lived in Chattanooga.
In late 2011, Jean’s son Mike moved in with Jean after he was diagnosed with early
onset dementia and became unable to care for himself. Jean and Mike were very close,
and she was very protective of him. One of Jean’s biggest fears was her uncertainty
regarding what would happen to Mike if she died. In 2012, at the age of 81, Jean updated
her estate plan in consultation with attorney Stephen Jett at the law firm of Chambliss,
Bahner, & Stophel. Mr. Jett had represented Jean and Dave in various estate planning
matters over the years (although another firm handled the probate of Dave’s estate). After
meeting with Mr. Jett, Jean decided to revise her will and to execute a power of attorney
naming her niece Christina as her attorney-in-fact. Christina was a physical therapist and
was in the process of starting a new elder care business, called Care Connections, in which
she would serve individuals in the capacity of “care manager.” Mike was also in need of
care, but it was decided that Rick would be designated as attorney-in-fact for Mike. Mr.
Jett directed a new associate at the firm, Ryan Barry, to draft the relevant documents. At
that time, Jean’s estate was worth somewhere around $2.4 million. Jean initially planned
to include in her will specific bequests of $50,000 to her sister Judy and $50,000 to her
niece Christina, with the residue being divided amongst a trust for Mike, her other son
Rick, and her grandchildren. During the meeting with Mr. Jett, which Christina also
attended, Jean decided to increase the gift to Christina from $50,000 to $75,000. Later,
Jean called Mr. Jett to say she had decided instead to include a specific bequest of $70,000
to Christina and to give Christina a present gift of $5,000 to assist her with the new business
she was starting.2 Aside from one smaller gift to a neighbor, the remainder of Jean’s estate
1
Because a number of individuals share the same last name, we will refer to the parties by their first names.
We mean no disrespect.
2
Ultimately, Jean gave Christina $10,500 for the new business.
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would be left to Rick, the trust for Mike, and the grandchildren.
Jean executed her revised will to this effect on December 14, 2012. On the same
date, she executed a Durable General Power of Attorney and a Durable Power of Attorney
for Health Care, designating Christina as her attorney-in-fact. The General Power of
Attorney document was a standard form that contained two alternative gift provisions that
could be selected: one that prohibited the attorney-in-fact from making any non-charitable
gifts or other gratuitous transfers pursuant to the power of attorney, and a second option
that would permit the attorney-in-fact to make non-charitable gifts under certain
circumstances. Jean initialed the option that prohibited Christina from making any non-
charitable gifts pursuant to the power of attorney. Christina received compensation of
around $1,000 per month for her services as power of attorney.
Around the same time when Jean executed these documents, she was diagnosed
with an aggressive form of pancreatic cancer. In early 2013, she underwent major surgery
for the removal of portions of her pancreas, small intestine, bile duct, and gall bladder.3
Over the next two years, Christina acted as attorney-in-fact for Jean on numerous occasions
using the powers granted in the general power of attorney and the power of attorney for
healthcare. Christina did not act in the role of a “caregiver” for Jean. Instead, she helped
to manage, monitor, and pay full-time caregivers for Jean who were employed by
caregiving agencies. Christina also took Jean to doctor’s appointments and helped her with
financial matters, such as reviewing Jean’s accounts with her periodically to update her on
how much money she had. The bank statement for Jean’s checking account was sent to
Christina’s house. Christina would communicate with the trustee of the family trust and
request more money when Jean was “running short on funds.”
In her role as attorney-in-fact, Christina often communicated with Mr. Jett at
Chambliss Bahner in regard to Jean and her financial affairs. In May 2013, Christina
informed Mr. Jett that she was having trouble accessing Jean’s bank accounts and asked
him to contact the bank manager to resolve the issue. She suggested that the bank was
unnecessarily requiring Jean to sign additional documents rather than honoring the power
of attorney, when Jean was so malnourished that she was “not thinking rationally and will
not sign anything, nor is she able to fully comprehend what she is signing.” Upon
investigation by associate Ryan Barry, he learned Christina was seeking to be added as “a
joint owner” of Jean’s bank account rather than a mere signatory, and because the power
of attorney did not contain gifting powers, the bank would not allow this unless Jean signed
a new signature card. The attorneys and bank manager agreed that there was no need for
Jean to sign anything if Christina was only a signatory on the account.
3
At a meeting with Mr. Jett in April 2013, Jean stated that she wished to revoke the powers of attorney
granted to Christina and to replace them with powers of attorney in favor of her son Rick. Mr. Jett prepared
the documents and sent them to Jean, but for some unknown reason, they were never executed.
-3-
Another issue arose in September 2013. Christina asked Mr. Jett about the
possibility of the trust purchasing a house for her to live in with Mike and whether she
would have to purchase another house on her own once Mike died. Mr. Jett asked Ryan
Barry to look at Jean’s will and its provisions regarding the trust for her disabled son but
noted it seemed to him that Christina was “getting out of bounds.” Mr. Barry similarly
responded with concern that the proposed course of action could be interpreted as Christina
using trust assets for her own benefit.
Later that month, Mr. Jett forwarded marketing materials for Christina’s new elder
care business to another attorney at Chambliss Bahner, indicating that she was doing an
excellent job managing Jean’s care. Over time, a “business referral relationship”
developed between Chambliss Bahner and Christina, in which Christina would refer clients
to Chambliss Bahner for legal services and Chambliss Bahner would refer clients to
Christina and/or Care Connections for care management. Thus, Christina worked on
several cases with Chambliss Bahner attorneys and staff for mutual clients. The website
for Christina’s business contained endorsements from an attorney and a paralegal from
Chambliss Bahner.
In November 2013, Jean’s attorney, Steve Jett, met with Christina and with the
trustee of the family trust, Grady Williams, who was a long-time family friend and an
accountant, to discuss Jean’s financial situation. Mr. Jett summarized the meeting in the
following letter addressed to Jean’s son, Rick, and Mike’s son, Michael, Jr., on November
7, 2013:
Dear Rick and Michael:
I deeply regret the continued disabling health problems that Jean is
experiencing. She has a long road ahead of her, and around-the-clock care
is very important.
Grady Williams and I met with Chris Duggan this week to review Jean’s
current and long-term financial situation. . . .
Grady and I both feel that it is very important to take several measures to
conserve Jean’s financial resources. She may require extensive medical care
and personal care for an extended period of time. For the foreseeable future,
24/7 personal care is needed for Jean. Personal care for Mike Ellis should be
continued. In addition, we believe the following steps should be initiated
immediately:
1. Close the farm operation and sell all cattle. . . .
2. List the Dayton Boulevard property for sale.
3. List Mike’s house on Thicket Road in Soddy Daisy for sale.
4. List the four Gatlinburg condominiums for sale.
-4-
5. Sell Mike’s cars to provide additional funds for his care.
6. Finally, a bookkeeper should be engaged to organize Jean’s finances, pay
bills, etc. . . .
Grady and I will be happy to meet with either or both of you to get your input
regarding these recommendations or any other matters related to Jean or her
financial affairs. Most of our recommendations can be carried out by Chris
Duggan4 under the Power of Attorney Jean gave her several months ago.
According to Mr. Jett’s testimony in this case, the assets listed in this letter were items that
could be liquidated that were not needed at that time considering that Jean “needed assets
for her care.”
In 2014, Jean’s health issues continued. An email from Christina to Mr. Jett and
Mr. Williams stated that despite some physical improvement, Jean’s memory was poor,
she was “very confused much of the time,” and she would likely require “24/7 care on a
long-term basis.”5 Jean’s doctors discontinued her chemotherapy indefinitely, and she was
diagnosed with depression and anxiety. She had compression fractures in her back and
underwent various procedures to address the pain. She used a wheelchair for mobility.
Her dosage of hydrocodone had to be reduced from 10 milligrams to 5 milligrams due to
“increased sedation,” but yet her pain was not improved with the lesser dosage. Jean tried
but was unable to tolerate other pain medication. She was described in medical records as
having “a very difficult time, with increasing lower back pain and frustration and anxiety.”
By 2015, Jean and Mike were both receiving “24/7” care from at least one but
oftentimes two caregivers. The caregivers assisted Jean by bathing and dressing her,
cleaning her house, preparing meals, accompanying her to doctor’s appointments,
administering medication, and providing companionship for her. The requested
distributions from the family trust increased in 2015, as Jean’s expenses for the caregivers
totaled around $20,000 per month. Checks from Jean’s account reflect payments to
caregiving agencies for large sums as high as $23,000.
In January 2015, Christina emailed Mr. Jett stating that Jean wanted to make a few
changes to her will. Christina acknowledged that she did not know if Jean was “cognitively
able to do so” and asked for Mr. Jett’s help evaluating this. Christina stated that Jean’s
most recent medical record from the oncology clinic documented her to be alert and
oriented and able to verbalize understanding of discussions. “That being said,” Christina
added, “her memory is very impaired.” Christina said that Jean was “able to understand
4
Throughout the record, Christina is sometimes called “Chris.”
5
In this same email, Christina asked Mr. Jett to call Rick “and explain to him that he has no legal rights to
conduct any of [] Jean’s business or do any work on any of her properties without my prior approval.” It
is not clear from the record how that situation was resolved.
-5-
concepts and specifics if explained to her simply and slowly” but she “has to take one thing
at a time” and “can’t focus on several things at once.” Christina also noted that any changes
would likely be challenged by the family. A few days later, Christina emailed Mr. Jett
again to inform him that Jean had attended another doctor’s appointment. She added, “I
asked them to do a mental status exam in order to have further documentation of her ability
to make changes in her will.” Christina stated that her mother Judy had accompanied Jean
to the appointment and reported that Jean “answered everything correctly.” Christina asked
to set up a meeting at Mr. Jett’s office later in the week. According to Christina, Jean
preferred to meet there in order to have more privacy in light of the caregivers at her home.
Christina said that she would bring Jean to the meeting but go out of the room whenever
they wanted to speak privately. Christina said she planned to “make [Mr. Jett] a list of
things that she’s mentioned to me that she’s considering changing so that [he could] review
them with her.”
Mr. Jett met with Jean, Christina, and Grady Williams in February 2015, and they
discussed whether Jean wanted to make changes to her will. However, no changes were
made to the will before Mr. Jett announced his retirement the following month, in March
2015. In a letter to Jean, which was also sent to Christina, Mr. Jett recommended that Jean
work with associate Ryan Barry concerning any questions she might have or any changes
she might want to make in her will. One of the items they had discussed during the recent
meeting was whether to give Jean’s grandson, Nick, an option to purchase the home where
he lived on the family farm, at appraised value, using his inheritance money at Jean’s death.
Mr. Jett explained that Jean’s wishes regarding the option could be expressed in a written
letter to her executor without changing her will, and he attached a letter to that effect that
he had drafted for her signature before a notary public. Mr. Jett retired on March 31.
According to Christina, in May or June 2015, she and Jean were in the neighborhood
where their families were raised when they saw a house for sale. According to Christina,
they looked at the house “just kind of for fun,” and Jean asked Christina if she really liked
the house. Christina said she did. The owners quoted a price for it, but the house was sold
the next day. Again, according to Christina, Jean “felt bad” that she had not purchased the
house for Christina, and they began to look at some other houses. Jean and Christina had
discussed many times the idea of Christina and Mike sharing a house. Admittedly,
Christina knew there was a possibility that Rick, Mike’s brother and attorney-in-fact,
would not allow Mike to live with her. Still, she and Jean periodically discussed the idea.
Christina had a house of her own, but she believed that it would have been difficult for
Mike to live there because it had stairs and a sloping yard. Unbeknownst to Rick or Jean’s
grandsons, Jean and Christina went on to view two more houses together after this first
one.
On July 7, 2015, Christina sent an email to her “[b]usiness social” acquaintance at
Chambliss Bahner, Sally Brewer. Ms. Brewer was a “Care Coordinator . . . Slash
paralegal” at Chambliss Bahner, and Christina had worked with her on several cases.
-6-
Christina’s email read:
Hi Sally,
When Steve Jett retired, he suggested that we work with Ryan Barry for any
future changes to my aunt’s will. If Dana [an attorney at Chambliss Bahner]
has no objection to our working with Ryan (potential conflict of interest), we
need to set up a time next week for Ryan to come to her home to discuss her
will. . . . I’ll try to refine the things she wants to change prior to that time and
send them to you. She saw Dr. Holland yesterday and he determined that she
is still medically competent to make revisions to her will.6 Just let me know
what works for Ryan. Thanks for your help.
When Ms. Brewer responded that Ryan Barry’s schedule was “pretty booked,” Christina
reiterated her request for a meeting later that same week or the next week. She added, “I
just don’t want to get too far from her visit with Dr. Holland yesterday.” A meeting was
scheduled for July 23. Records indicate that on July 20, Christina and Ms. Brewer spoke
on the phone “regarding information for updates to Jean’s will.” On July 21, Christina
called and canceled Jean’s July 23 appointment.7
On July 27, Christina and Jean toured a third home along with Judy, Judy’s husband,
and Christina’s friend. After a discussion between Jean and Christina in a back bedroom,
Christina made an offer on the house. That same day, Christina signed a contract to
purchase the house in her name only. Christina wrote a check for $1,000 from Jean’s
checking account for the earnest money, completely filling out the check herself and
signing it with her own name as “POA.” On July 30, Christina filled out a second check
from Jean’s bank account, this time payable to herself, for $175,000. In Christina’s
handwriting, the memo line simply reads, “Gift.” Only the signature on this check was in
Jean’s handwriting. However, Jean’s bank account did not contain sufficient funds to cover
the $175,000 check. Her balance as of July 31 was only $98,852.55.8 According to
Christina, she and Jean both knew the account contained insufficient funds, so she did not
immediately attempt to negotiate the check. Aside from the checking account, Jean did
6
Christina had asked Jean’s doctor, again, to evaluate Jean’s decision-making capacity for purposes of
revising her will. The records from the oncology clinic from July 6 reflect that Jean had been diagnosed
with pancreatic cancer, depression, anxiety, insomnia, and other conditions. They state that Jean was
capable of only limited self-care and mostly confined to a bed or chair but alert and oriented with coherent
speech and verbalized understanding of discussions. She was prescribed 10 milligrams of hydrocodone as
needed but had “excessive sedation with medications.” At the end of the note, the doctor wrote, “I believe
that Ms. Ellis has medical decision making capacity, for purposes of revising her will.”
7
At trial, Christina testified that she could not recall what changes to Jean’s will were being contemplated
during this time period, and she insisted that the July 23 meeting was not about a gift for her. However,
Ryan Barry testified that one of the topics to be discussed at the meeting was a gift to Christina.
8
Mike’s house in Soddy Daisy had recently been sold, in April 2015, and approximately $106,000 from
the sale had been deposited in Jean’s checking account. Also, a deposit of $60,000 from the family trust
had been made on July 8, 2015.
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not have “sufficient liquid funds” elsewhere to cover a transfer of this amount. As such,
Christina was admittedly “looking for a way to fund [the] gift” for a few days.
Records indicate that Sally Brewer and Christina spoke on the phone again on July
30, and this time, they discussed “a cognitive screening” for Jean and “gifting.” On July
31, Christina sent the following email to Ms. Brewer:
Sally,
Is there some kind of legal document that can be drafted to document her gift
to me of $175,000 to purchase the house? She’s giving me the money to buy
the house. I can’t actually close on the house until the end of September.
Also, Steve drafted a document to give her grandson, Nick, first option to
purchase the house [on the farm]. Can you bring a copy of that in case she’s
ready to sign it? It has to be notarized.
At some point, Mr. Barry discussed the gift with Jean by telephone and drafted a document
to memorialize the gift. Ms. Brewer scheduled a visit to Jean’s house for August 5 for
execution of the documents and a cognitive screening.
On the morning of August 5, prior to the meeting with Ms. Brewer, Christina signed
and submitted an “Annuity Full Surrender Request” form to a local branch of Edward
Jones, requesting the surrender of a Prudential annuity owned by Jean. She signed the
space designated for the “Party-In-Interest” as “Christina L. Duggan, POA.” The
beneficiaries of the annuity were three of Jean’s grandsons, but Christina did not inform
them that she was cashing in the annuity. The time-stamp on the facsimile shows that the
paperwork was submitted at 9:28 a.m.
Later that day, Sally Brewer went to Jean’s home to conduct a “mini cognitive
screening” and assist Jean with the execution of the requested documents regarding the gift
and the option to purchase. Christina was also present at the home. The document Jean
signed that day stated:
TRANSFER AND ASSIGNMENT
In appreciation of the love and support shown to me by my niece,
CHRISTINA DUGGAN (“CHRIS”), I, Jean R. Ellis, hereby transfer, give
and assign One Hundred Seventy Five Thousand Dollars ($175,000) cash to
CHRIS as an unrestricted gift. As noted above, CHRIS has shown a great
deal of love for me and she has spent countless hours and energy assisting
me as my attorney-in-fact. This gift is meant to show my appreciation for
her love and support of me.
The next day, on August 6, Prudential issued a check payable to Jean for $126,281.09 for
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the annuity. Someone signed Jean’s name on the back and deposited the check in Jean’s
bank account on August 12. A few days later, once the funds were available, the check for
$175,000 was deposited in Christina’s bank account. After the check cleared, Jean’s
account balance as of August 31 was $39,125.12. Christina closed on the purchase of her
new house on August 27. She paid the purchase price using the proceeds of the check for
$175,000. She had not informed Rick or Jean’s grandsons about the purchase of the house
or the liquidation of the annuity.
A week after closing, Christina sent the following email to Sally Brewer:
Hi Sally,
How soon could you come up to Aunt Jean’s? She wants to give my mom
(her sister) some money and I need for you to verify this with her and notarize
it as you did for me. Needs to be soon…she’s getting weaker.
Ms. Brewer called Jean to discuss the matter on September 10, but Jean was “so indecisive”
that Ms. Brewer recommended that she “put more thought into this and give us a call back
when she had a clear vision on what exactly she wanted to do.”
In November 2015, Jean revoked the powers of attorney granted to Christina and
executed new documents designating Rick as her attorney-in-fact. Jean told Ryan Barry
that her entire family had uneasy feelings about Christina and her activity as power of
attorney. Jean said she was not one hundred percent certain that Christina was engaging
in anything suspicious or unethical but that her family’s uneasiness was enough to warrant
a change. Jean reiterated that this was her own desire and not just that of her family.
Days later, Christina sent the following email to Ryan Barry:
Ryan,
Things are getting really ugly. Rick won’t allow Mom or I to see Aunt Jean
even though she wants us there. I saw her Saturday to take her checkbooks
back to her and she had no recollection of changing her POA. I recorded our
conversation so that you could hear it. She said she may have signed
something that she didn’t understand. Rick is questioning “how that house
went down” meaning my house. I need to meet with you ASAP so that I can
take appropriate steps. . . .
My urgent concern is that Rick won’t allow Mom or I to see Aunt Jean, and
the fact that she has no recollection of changing her POA just 2 days after
doing so. Please give me a call. I know that I will need to pay for your time
out of my own funds and that’s okay.
Mr. Barry responded by explaining that he represented Jean, not Christina, and that he
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could no longer discuss Jean’s file with her.
Jean died on February 8, 2016. Ryan Barry left Chambliss Bahner on March 1. On
March 22, other attorneys at Chambliss Bahner had a meeting with Rick and Jean’s
grandsons to discuss the administration of her estate and the family trust. Rick brought up
the gift of the house to Christina and conveyed that Jean’s family wanted the estate to
pursue an action against Christina. Later that day, Greg Willett, one of the attorneys at
Chambliss Bahner who attended the meeting, emailed Sally Brewer seeking details about
the gift of $175,000 to Christina and asking her to prepare an affidavit about the
circumstances surrounding the gift. Ms. Brewer prepared a timeline and memorandum in
response. On March 24, Mr. Willett emailed Ryan Barry about the Jean Ellis matter, asking
for more details about Mr. Barry’s involvement with the gift and informing him that he and
Ms. Brewer may both be witnesses in an upcoming lawsuit. Mr. Barry wrote that Ms.
Brewer’s timeline and notes “seem accurate to me.” He added,
The only thing that I would add is my involvement leading up to Sally’s visit
with Jean. Chris was certainly the one who made the initial contact regarding
revisions to Jean’s Last Will and potential gifting. Once she had made
contact, we set the initial visit for Sally and I to go up and visit with Jean,
which was subsequently cancelled (as noted on the timeline). When the issue
was brought up again (by Chris), Sally and I followed our normal protocol,
which involved: (1) me speaking with Jean over the phone to confirm that
she wanted the revisions/gifting carried out, (2) me drafting the documents
to carry out her wishes, and (3) Sally making a house-call to complete a
cognitive screening before confirming one last time Jean was good with
everything and then having her sign the documents. Other than my memory
of these events, this is the protocol that Sally and I have followed on a number
of house-call cases. In this particular case, I do not recall the date and time
that I spoke with Jean, but I do specifically recall confirming her wishes over
the phone prior to her signing the documents with Sally.
On March 29, Mr. Willett wrote a letter to the beneficiaries of Jean’s estate (her sons and
grandsons) detailing the facts surrounding the gift to Christina as described by Mr. Barry
and Ms. Brewer. In conclusion, the letter stated:
Based on the above facts, Steve Jett as the potential executor of Jean’s estate
does not feel that the evidence supports the estate bringing a claim against
Chris Duggan for undue influence surrounding the August 5, 2015 gift to
Chris. That being said, Steve, if appointed as the executor of Jean’s estate,
has agreed to file a motion with the Chancery Court asking that any claim
that Jean’s estate may potentially have against Chris Duggan be assigned to
the remainder beneficiaries of the estate in order to allow the remainder
beneficiaries to proceed directly against Chris Duggan if they so desire. . . .
- 10 -
Ultimately, a bank was appointed as executor of Jean’s estate, and the bank retained Greg
Willett of Chambliss Bahner as counsel for the estate. Chambliss Bahner notified the
executor/bank that it would assist with all aspects of administration of the estate except for
any claim against Christina for the gift made by Jean.
In September 2016, before any assignment occurred, Rick died. In April 2018, Mike
died. On June 14, 2018, Jean’s four grandsons filed a complaint in chancery court as
“Assignees of the ESTATE OF JEAN R. ELLIS,” naming as defendants Christina L.
Duggan and Judy Morgan. The complaint states that the plaintiffs have standing to bring
the claims asserted pursuant to the chancery court’s order and “Assignment” filed in the
estate case in May 2018. Those documents are not in the record before us. However, in
their answer, Christina and Judy admitted that “[t]he estate’s claims against Defendants
Duggan and Morgan have been assigned to these Plaintiffs.” The complaint alleged that a
confidential relationship existed between Jean and Christina and that Christina had abused
her position of confidence as fiduciary and attorney-in-fact. It alleged that Christina
utilized fraud and undue influence in persuading Jean to make a gift to her of $176,000
apart from her will. The complaint alleged that Jean may have made the gift in reliance on
a false representation that Christina would purchase a house as a place to care for Mike
when Christina had no intention of caring for Mike at the house. The complaint further
alleged that Christina used the power of attorney to write the check for the earnest money
and request surrender of the annuity despite the document’s prohibition against gifting. It
alleged that Judy forged Jean’s endorsement on the Prudential check before it was
deposited in Jean’s account to “fund” the check for $175,000. The plaintiffs alleged that
this caused Jean and her estate to be wrongfully deprived of this money. The causes of
action asserted included fraud and/or undue influence, breach of fiduciary duties, breach
of power of attorney, tortious interference with contractual relations regarding the annuity,
tortious interference with inheritance or gift, and unjust enrichment. The complaint alleged
that Judy aided and abetted Christina in her actions. The plaintiffs sought to recover the
$176,000 gift and their attorney fees.
Christina and Judy jointly filed an answer and a motion for summary judgment.
They argued that “plaintiffs cannot establish undue influence for one reason,” because Jean
had independent advice regarding the gift. The trial court denied the motion, concluding
that genuine issues of material fact remained for trial.
Trial was held over the course of five days in August and October 2019. The trial
court heard testimony from twelve witnesses and received “approximately” 88 exhibits.9
9
The 88 exhibits are not consecutively numbered but start with 1 and end with 102 with inexplicable gaps
in between. It appears that the parties presented a binder of “premarked” documents to the trial judge at
the beginning of trial along with “a color-coded list” of exhibits with the trial briefs (which is not part of
the record on appeal). Without proceeding in order, they attempted to check off documents as exhibits if
they were discussed and/or admitted at trial. During the five-day trial, the trial judge attempted to clarify
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Christina had acted as attorney-in-fact for Jean numerous times between December 2012,
when Jean executed the documents, and November 2015, when she revoked them. The
power of attorney remained in effect at the time of the alleged gift in July and August 2015.
As such, counsel for Christina conceded that a confidential relationship existed between
Jean and Christina.
Christina maintained that Jean wanted to make a gift to her of $176,000 to purchase
the house. Christina acknowledged that she completely filled out the $1,000 check for the
earnest money, but she said she did so at Jean’s direction after they toured the house
together. She admitted that the check for $175,000 was also in her handwriting with the
exception of Jean’s signature, but again, Christina testified that Jean directed her to prepare
the check. Christina testified that she and Jean both knew Jean’s checking account had
insufficient funds to cover the check for $175,000 and that they “were going to have to
move money, which is why I held the check.” Christina said she was “looking for a way
to fund [the] gift” and had a discussion with Jean about where to get the funds. She testified
that the Prudential annuity “seemed to be the easiest option” and that there were really no
other alternatives. According to Christina, Jean told her to call trustee Grady Williams to
ask him if the Prudential account would be acceptable to use. Christina testified that she
called Mr. Williams and that he said it was fine to use anything outside of the trust.
Christina testified that she did not ask Mr. Williams to give her money from the family
trust to cover the gift.
Christina said she did not speak with anyone else about how to fund the gift, such
as Ryan Barry, Sally Brewer, Jean’s sons, or Jean’s grandsons who were the beneficiaries
of the annuity. She acknowledged that the annuity surrender request submitted to
Prudential contained only her signature with the designation “POA.” However, she again
insisted that Jean “directed that action.” Thus, she claimed that she had used the power of
attorney to request the liquidation of the annuity to fund the gift “at [Jean’s] direction.”
Still, Christina claimed to have no knowledge as to how the Prudential annuity check was
deposited in Jean’s bank account. She agreed that the endorsement on the back of the
annuity check did not appear to be in Jean’s handwriting. However, Christina denied
which documents had actually been admitted. At the end of trial, he asked the parties to confer and come
to a consensus concerning which documents had been admitted. They submitted a five-page document
attempting to resolve the matter, designating certain exhibits or selected pages of exhibits as admitted. After
the notice of appeal was filed, this Court sent the record back to the trial court noting that many of the
exhibits did not have original stickers from trial and there were exhibits either missing or present but not
listed on the volume index. As a result, the parties’ attorneys met in court (apparently without the trial
judge) and announced a “Stipulation” on the record that certain numbered exhibits were in fact the originals
introduced at trial. However, a review of the transcripts reveals that some of these exhibits were never
formally admitted by the trial judge during trial. In an effort to provide the parties with finality after years
of conflict, we have carefully reviewed the nine volumes of exhibits on appeal in a process that could aptly
be compared to an archaeological dig. We have attempted to make sense of the parties’ inexpiable practice
in the trial court. However, we caution the parties that we may not be so forgiving and accommodating in
future appeals.
- 12 -
giving anyone authorization to sign and deposit the check and insisted that she did not
know how it came to be deposited. She did admit that she deposited the check for $175,000
in her own bank account five days after the deposit of the annuity check in Jean’s account.
She also conceded that the endorsement on the back of the annuity check was written with
a backward slant and that her mother Judy writes with a backward slant.
Regarding the reason for the gift, Christina was asked if “the origin of this
discussion about buying a house” was so that there would be a place for her to take care of
Mike. She said, “That was part of it.” She claimed that she and Jean spontaneously visited
the house for sale in their old neighborhood “just kind of for fun.” She said when the house
sold, Jean “felt bad that she hadn’t bought it” for her, and Christina told Jean, “There’s no
reason for you to buy a house for me, I have a house.” Christina said she “assured [Jean
that] there was no reason for her to feel badly at all. I never expected anything.” She
admitted that Jean had become worried about Mike again during this timeframe and what
would happen to him if she passed. Christina said it was her understanding that Mike
would live either with her or with Rick or that Rick would arrange for him to live in a
facility. If Mike lived with Christina, she planned to keep working but to continue having
caregivers for Mike at her home. She said at the time of the gift, there was “a realistic
possibility” that Mike would live with her. She said Mike ultimately never spent a night
in the house that Jean purchased because he experienced a sudden health issue about a
week after closing such that he was hospitalized and then required care in a facility setting
with staff onsite. However, she said a caregiver did bring Mike to see the house right after
closing and that he saw the bedroom that would have been his. At the time of trial,
Christina still owned the house purchased by Jean in addition to the house that Christina
previously owned, but she was living at the house purchased by Jean.
When asked why she wanted to obtain a legal document regarding the gift, Christina
said “for assurance, validation,” and she “did want protection.” She said, “I knew that my
family would probably question her capability to make that gift.” Christina said when she
spoke with Sally Brewer on the phone, she told Ms. Brewer to question Jean to determine
if she was “cognitive enough” to make the gift and doing it of her own free will. Christina
said she was at Jean’s house when Ms. Brewer came on August 5 out of “courtesy” and
met Ms. Brewer at the door. However, Christina claimed that Ms. Brewer and Jean went
“behind closed doors” for their discussion, on the back porch, and that she remained “in a
totally separate part of the house.” Christina said she did not go out onto the porch with
them until after their private meeting had ended and the documents had been signed. She
estimated that the meeting lasted 30 to 45 minutes.
As for Jean’s mental and physical state at the time of the gift, Christina testified that
Jean was gradually getting weaker but that her mental state “fluctuated.” She said Jean
had “more good days than bad.” She admitted that on bad days, Jean had more fatigue,
pain, and confusion, and that it was more difficult for her to think quickly and clearly. On
the other hand, she said that on good days Jean was very sharp and able to recall
- 13 -
information and give her opinion on things very quickly. Christina described Jean as
strong-willed and said no one could get her to do anything she did not want to do. Although
Jean had been prescribed hydrocodone as needed for pain and Xanax as needed for anxiety,
Christina testified that Jean did not like the way pain medicine made her feel sleepy or
groggy, so there were more days when Jean did not take pain medication than days when
she did.
Christina said she and her mother spent the most time with Jean in the summer of
2015 aside from the caregivers and that she saw Jean two or three days a week. She said
they continued to go on outings but that Jean was in a wheelchair. Christina said she and
her mother often went shopping with Jean and that Jean was “very conservative” with her
spending and frugal in her purchases for the most part. She explained that Jean loved to
shop at TJ Maxx or Ross rather than department stores and that she knew the schedule for
new deliveries and would be there to find the best buys. However, she said that Jean would
return at least fifty percent of the items she purchased. Christina claimed that Jean would
buy things for her or Judy only every now and then, like a bracelet or item of clothing.
Christina acknowledged that just days after the closing on her house, she emailed
Sally Brewer asking her to come “verify” a gift to Judy. According to Christina, Jean
brought up the idea of buying a house for Judy. Christina went with Jean and Judy to look
at a house for Judy, but she said Jean decided not to buy it. Christina denied that she had
ever pressured Jean to buy a home for Judy.
Judy also testified. She was about fifteen years younger than Jean and age 73 at the
time of trial. She had worked part-time at a fast food restaurant until the age of 62 when
she “had to go on disability.” Judy confirmed that she and Christina spent the most time
with Jean apart from her caregivers. She also agreed that one of Jean’s biggest fears was
about what would happen to Mike when she died. However, Judy testified that she and
Jean “never spoke about the house” for Christina.10 She added, “[T]hat was all Chris and
Jean.” Judy had overheard Christina and Jean “talking about a home to move Mike in[.]”
Judy claimed that Mike and Christina “had always been really close” and that “Chris
10
Interestingly enough, Judy said she did ask Jean to give her grandson Nick the house where he
was living on Jean’s farm. Nick lived next door to Jean and in lieu of rent he would mow Jean’s yard and
take care of things around the property for her. Judy testified,
Yeah, Nick was up at the house one day mowing [the] lawn or something, and he came in
to the den where Sis and I were, and I asked him, while we were all three there, I said,
Nick, do you still want to – would you like for [] Jean to give you that house? And he said,
Well, yeah, I’d like that. And I said, Well, let’s ask her, you know, while we were all three
there. And so I said, Sis, would you like to just go ahead and give Nick the house that he’s
been living in?
Although Jean did not gift the house to him, Judy said, “I asked her about Nick because I just wanted him
to have a house because he lived there so long, I didn’t see why she wouldn’t give it to him.”
- 14 -
wanted to take Mike to live with her . . . in a home that Jean would purchase.” She said
the plan was for Jean to give the money to Christina to buy a house where she would live
with Mike. Judy said she went with Christina and Jean when they looked at houses together
but never saw Christina pressure Jean into making the gift. Judy also denied that she ever
asked Jean for a house for herself. According to Judy, after Jean bought Christina a house,
Jean simply said “out of the blue” one day, “Judy, Would you like for me to buy you a
house, too?” Judy said she initially declined and said she didn’t need another house but
then said “if you really wanted to buy us a house, [] that would be really nice.” Judy and
her husband and Christina went with Jean to look at a house, but Jean did not like it.
According to Judy, Jean never discussed the issue again. (Christina emailed Ms. Brewer
about a gift to Judy in September, and her power of attorney was revoked in November.)
Judy agreed that Jean was sometimes confused during the summer of 2015 but said
she had good days and bad days. Judy described Jean as “always an anxious, nervous type
person” but said she was very strong-willed and that it was impossible to get her to do
anything she did not want to do. She said Jean was “very tight with her money.”
Judy was shown the Prudential annuity check for $126,281.09 and agreed that it
appeared to have been addressed to Jean at her home address. She admitted that Jean’s
endorsement on the back did not look like Jean’s usual signature. However, Judy denied
that she signed Jean’s name to the back and deposited it in Jean’s account. Judy insisted
that she had never seen the check until it was shown to her by one of the attorneys in this
litigation. Judy claimed that she did not know about the liquidation of the annuity until the
week before her deposition and that she was not at all involved with the resulting check.
She said she knew about the check to Christina for $175,000 but not that there were
insufficient funds to cover it.
Two of Jean’s caregivers testified as well. The first was Michelle Smith. She was
employed by a caregiving agency and initially hired by Rick before Christina was given
power of attorney for Jean in 2012. She served as a caregiver for Jean until she died in
2016. Ms. Smith and the other caregiver, Rose Melton, typically worked twelve-hour
shifts, but sometimes, they worked longer hours and were at the home together. Ms. Smith
testified that Christina and Judy would come to Jean’s home a few times a week to visit
Jean and also take her to doctor’s appointments and for outings. She agreed that Judy and
Christina were there more than anyone besides the caregivers. Ms. Smith testified that
Christina and Judy were really nice to Jean and would help her and do things for her, but
if they got upset or something did not go “their way,” their personalities would change and
they would be “kind of short or cold.” She also said that Judy would take things from
Jean’s house once or twice a week and say that she was taking it to her church, such as
dishes, curtains, furniture, or clothing. Ms. Smith had also overheard Christina and Judy
talking with Jean about money, including small gifts or donations to charitable events and
sometimes “gifts or something they would need.” She said that caregivers would go with
Jean on her outings, and just about every time she went shopping with Christina and Judy,
- 15 -
they would say they needed something and Jean would buy it for them.
Ms. Smith said that Christina and Judy sometimes asked the caregivers to leave the
room when they had conversations with Jean. Still, she did observe some “discussions”
during the summer of 2015 about Jean buying a house for Christina, although she did not
consider what she saw to be “pressure.” Ms. Smith explained that Christina was going to
let Mike live with her in the new home and was looking at houses that would better suit
him. Ms. Smith was present with Jean at two of the houses they visited. At the first house,
near where Jean grew up, she recalled Christina talking about Jean’s childhood and saying
that she could come there to reminisce about her younger days. She said there was some
discussion about Christina selling the house that she already owned, but Christina said
“there was plenty of money. Not to worry about it.” When they toured the house that
Christina eventually purchased, Christina was pointing out features that would make it a
great place for Mike. Ms. Smith said, “I felt that she was trying to coach Jean into buying
it for her by using Mr. Mike.” She also recalled Judy making statements to Jean about how
Christina had worked hard for Jean and really deserved a house.
When asked about the likelihood that Mike would have lived with Christina, Ms.
Smith responded, “I don’t feel like Mr. Mike would have went willingly. I don’t feel like
he wanted to be there. He always stated he wanted his brother to take care of him if
something happened.” She said Mike had expressed that sentiment many times before the
summer of 2015. When asked if Christina knew this, Ms. Smith responded, “I think she
did, yes.” She explained that Mike would get upset when Christina was around. She said
if they pulled in the driveway and saw a vehicle belonging to Judy or Christina, Mike would
curse or stomp the floorboard or throw his drink. He would say he did not want to go inside
and “didn’t want to put up with them today.” She said Mike became agitated when
Christina and Judy tried to help with his care and that he would not let them touch, clean,
or wipe him without a fight. When asked if Christina knew that Mike would not want to
live with her, Ms. Smith said it would be “kind of hard that she wouldn’t, considering the
fits that he threw.” She thought it was obvious from his reactions to her. Ms. Smith agreed
that Jean was concerned about Mike having enough money to afford the kind of care that
he was going to need if he outlived her. However, from Ms. Smith’s perspective, the
discussions between Christina and Jean did not take into consideration how Mike felt
because of his dementia, and Jean seemed to think she “could just give Mike to Chris.”11
Ms. Smith did not think Mike comprehended that he would be expected to live with
Christina, but she said Christina never did anything to correct Jean’s misperception or point
out that Rick had power of attorney for Mike, not Christina.
Ms. Smith did observe what she deemed to be “pressure” that was put on Jean to
11
Ms. Smith believed there had always been “tension” in the family and that Christina and Judy did not get
along well with the rest of the family. She said their interactions at large family gatherings were “phony”
and “all put on for Jean to make her happy because they were all together.”
- 16 -
buy a house for Judy. She said after Jean purchased the house for Christina, “they started
in on trying to get Jean to buy Judy Morgan a house.” During one conversation she
recalled, “Jean got very upset because she felt that she didn’t have enough money to buy
Judy Morgan a house because she just got through buying Chris Duggan’s house.” She
remembered Jean saying, “I can’t afford to buy you a house right now, Judy. I just bought
Chris one.” She said Christina told Jean “not to worry about it; that there was plenty of
money.” She said they discussed it a little more and then Christina got upset and said that
Judy would have to talk to Jean about it because “[s]he tried and wasn’t getting anywhere.”
Ms. Smith said Christina did not visit Jean for a week or so afterward. From what Ms.
Smith observed, Jean felt isolated and as if they were not coming around because she did
not do what they wanted. She said the whole situation made her feel sad for Jean and that
she eventually reported her observations to her employer, and Rick and Michael, “because
I couldn’t stand to watch it no more.”
As for Jean’s physical condition during the summer of 2015, Ms. Smith testified
that Jean was taking hydrocodone every four to six hours depending on her pain level. She
was not aware of any days when Jean would not have had any hydrocodone, like Christina
had described. On an “ordinary day,” she said, Jean would have had at least three to four
hydrocodone pills. Ms. Smith said Jean’s pain was getting worse during that period and
she was taking more and more medicine, which made her drowsy, slow, and sluggish, with
slurred speech sometimes. Ms. Smith felt that Jean wanted to please everyone more when
she was medicated. She testified that Jean would get upset when there were discussions
about her will or her property to the point that she would sometimes have panic attacks.
She said Jean would cry and have shortness of breath and “get herself all worked up.”
According to Ms. Smith, when Christina and Judy knew that “this was going to be the
topic” or that there would be a meeting, they would give her instructions about medicating
Jean in advance. Judy would call and instruct Ms. Smith to give Jean either a Xanax to
calm her so she wouldn’t get so upset or a hydrocodone if she was hurting. According to
Ms. Smith, this would change Jean’s mood from alert and awake to sleepy, groggy, and
“willing to please.” Ms. Smith sometimes felt that the dosage of hydrocodone she was
directed to give Jean was too strong, but she said she was instructed to give it to Jean 30 to
40 minutes early “to keep it in her system.”
Ms. Smith had driven Jean and Judy to Jean’s doctor’s appointment in early July
2015, when Christina had requested that the doctor evaluate Jean’s decision-making
capacity for changing her will. Ms. Smith testified that Judy was “prompting” Jean on the
way, reading questions from a book and asking Jean to answer. For example, Ms. Smith
recalled her asking Jean to name the president and identify colors. She added, “It was like
she was getting her ready to take the test before we got there.” From what she overheard
during discussions, one of the changes to the will that was being contemplated was “a
percentage” that Christina would receive.
The second caregiver to testify was Rosetta Melton. She was also employed by a
- 17 -
caregiving agency and had worked with Jean and Mike for about two years. Ms. Melton
mostly worked the night shift but also worked during the day sometimes with Mike. She
similarly testified that Mike did not want to be around Christina and Judy. She said he
would get mad and not want to go home when he saw they were there, but once he went
inside, he would generally act fine “in front of them.” When they left, he’d say he was
glad they were gone. Ms. Melton also understood that Mike wanted to live with Rick if
Jean passed away.
Ms. Melton was present at Jean’s home on August 5, 2015, when Sally Brewer
brought the documents for Jean to sign. She testified that Christina was also present when
Ms. Brewer arrived, along with Judy, Mike, and Jean. Ms. Melton recalled helping Jean
out of her recliner and said Jean and the others went out onto the sun porch together. She
recalled that Jean was sitting in a rocker, Ms. Brewer was in the middle of the porch,
Christina was on the side, and Judy was sitting toward the windows. Ms. Melton said
Christina came in from the porch and asked her to take Mike outside. As Ms. Melton was
going out with Mike, she saw Christina go “[b]ack out there.” Because Ms. Melton was
outside for the remainder of the visit, she did not know who remained on the porch during
the meeting. However, Ms. Melton said Judy and Christina were out on the porch with
Jean and Ms. Brewer when she went outside, and she never saw them leave the porch.
Ms. Melton testified that shortly after the August 5 meeting, she began to get
telephone calls from Judy every day asking her if a check had arrived in the mail. When a
check arrived a few days later, Ms. Melton told Judy about it, and she was asked to open
it. Ms. Melton said she did so and saw that it was a check payable to Jean for “120-
something thousand dollar[s].” She said Judy asked her to bring the check and meet her in
Soddy Daisy. According to Ms. Melton, she met Judy in a parking lot and delivered the
check as instructed, and Judy told her “not to tell Rick or anybody about it.” Ms. Melton
testified that she did not tell Jean about the check or show it to Jean before she left, so Jean
did not write on the check or do anything with it while it was at her house. To her
knowledge, Jean never saw the check. Ms. Melton did not write on the check either.
The next witness was Grady Williams. He had worked as a certified public
accountant at a local accounting firm for 47 years. Mr. Williams had moved next door to
Dave and Jean Ellis in 1960 and knew all the family members except Judy. When asked
to describe Jean, he said:
Jean was a person that changed her mind a lot. Today she wanted to do this.
Tomorrow she wanted to do something else. Change her will, or change this,
change that. She was a very changeable person; a person that kind of listened
to everybody and probably whoever the last person she talked to was the
thing that she was interested in and okay with, but she was a very changeable
person. . . .
- 18 -
He also described Jean as “very, very frugal” and said she “watched her money.”
Mr. Williams and Jean were co-trustees of the family trust created by Dave’s will.
He served as co-trustee without any compensation. Mr. Williams explained that the family
trust was for the benefit of Jean during her lifetime and then the residue would go to Dave’s
heirs (but not Christina or Judy). The trust paid for the caregivers for Jean (and Mike) and
for other expenses they had. Mr. Williams testified about the meeting he had with Christina
and Mr. Jett in November 2013 regarding the need to conserve Jean’s resources due to the
extensive medical care that was being provided on a 24/7 basis. He testified that the
distributions from the trust were not very large in 2013 and 2014 and were mostly requested
by Jean, but this changed in 2015. The expenses were “very, very high,” and the trust was
making larger distributions for Jean’s benefit, at Christina’s request. For instance, on July
8, 2015, just before Jean purchased the house for Christina, the trust distributed $60,000
for Jean. Between July 8 and November 3, the trust distributed a total of $160,000 for
Jean.
Mr. Williams described one particular telephone call from Christina in August 2015
in which she requested funds from the family trust. He said Christina told him that Jean
was going to make a gift to her of $175,000 to buy a house but that Jean did not have that
much money in her personal account, so Christina wanted to know “could she have – could
the trust make up the difference.” Mr. Williams said he told her “no, the trust could not.”
He said this would have been “a substantial amount of money” and that he did not consider
it a proper distribution from the trust because it did not have anything to do with the
maintenance or upkeep of Jean or Mike. He did not feel that it was appropriate to distribute
money for Jean to make a gift. As such, Mr. Williams told Christina “that she would have
to get the funds somewhere else.” Mr. Williams never had a conversation with Jean about
the gift. However, Mr. Williams was generally aware of Jean’s estate and was of the
opinion that $175,000 would have been “a large gift from her estate.” He said “with an
estate no larger than Jean’s was” this would have been “a very, very substantial gift.” He
reiterated that the November 2013 letter had already recommended selling various assets
because they did not know how much money she would need for her care, which was
costing about $20,000 per month.
Jean’s grandson Hunter (Rick’s son) also testified. He was 35 years old at the time
of trial. Hunter testified that once Christina was given power of attorney, she was on a
“power trip.” He felt that Christina and Judy acted like they owned Jean’s house and tried
to keep everyone else away. Hunter testified that Mike did not like to be around Christina
and Judy and would get frustrated when they were there. He said Christina and Judy tried
to “baby” anyone who was sick, including Mike, which upset him. Hunter could not say
for certain where Mike wanted to live if Jean passed away, but, he added that Mike loved
being around Rick and did not enjoy being around Christina.
Hunter did not know that Jean had bought a house for Christina until after it was
- 19 -
purchased, and when he heard, he did not believe it. He said he went to visit Jean on her
birthday at the end of October, and there was “an offer made” of a house for him as well.
Hunter told Jean that he was not going to talk about that because he was there to celebrate
her on her birthday. He testified that he was “a little disgusted” by it, not because of Jean,
but because of “what she was having to go through, as much as she was already suffering
in her last days of life, and how she was being treated.” He said, “It was my understanding
that Chris was telling her that she was rich and had plenty of money for this.” He said once
Rick was named power of attorney, the caregivers were told that Jean could only be with
Christina and Judy if someone remained in the house to observe. Hunter had reviewed
Jean’s bank statements and calculated that $193,000 was spent on caregivers in 2015.
Hunter testified about the family meeting at Chambliss Bahner after Jean died, when
Rick conveyed that the family wanted the estate to pursue an action against Christina, but
the attorneys said they had no chance of winning. He said the attorneys later provided a
letter summarizing their position. He said the beneficiaries were provided notes created by
Sally Brewer that appeared as if they had been made contemporaneously, on the date of
her visit with Jean, but they discovered after a subpoena was issued that the notes were
actually created eight months after the visit, after Jean died and after the initial family
meeting. They also discovered that Ms. Brewer’s original memorandum contained an
additional sentence that was deleted before it was provided to the beneficiaries: “Ms. Ellis
did exhibit anxiety, which may have contributed to her indecisiveness.”
Hunter said the beneficiaries were informed that the lawsuit could be assigned to
them but that they would be required to assume the costs of bringing the lawsuit. Hunter
testified that he and his brother Nick had incurred substantial attorney fees and costs in
connection with the litigation. At that point, his counsel informed the trial judge that he
would not pursue the issue of attorney fees any further based on his understanding that the
trial judge intended to defer any further action regarding attorney fees and appoint a special
master if they were in fact awarded. The trial judge responded, “You got exactly as far as
you need to go. He said there are fees. If ultimately fees are awarded, we will take that up
post-trial.”
Rick’s other son, Nick, also testified. He was age 33. Nick had lived in the small
house next door to Jean and saw her four to five times per month. Nick testified that in
mid-July 2015, Christina called him and said that lawyers were coming to Jean’s house to
make changes to the will. She told him that one of the issues was whether he would get
the house where he was living. Christina reportedly told Nick that he needed to go to Jean’s
house and talk to Jean about whether he wanted the house. Nick testified that he told
Christina that he would be uncomfortable doing that, and she responded, “Well, just do
what I do first, give her a hydro.” Nick said when he was at Jean’s house a few days later,
Judy brought up the subject about his house, saying, “Sis, isn’t there something you want
to talk to Nick about?” Nick testified that Jean indicated to him that she wanted him to
have the house as a gift. He said Judy “chimed in” and said that Jean was buying a house
- 20 -
for her too. Nick said he did not learn about the house for Christina until September, when
she called and asked him to come to her new house to get a mattress and take it to Jean’s
house for Ms. Melton. When Nick asked her for clarification, she said, “Aunt Jean bought
me a house.” He said he did not know until he saw Jean’s will that he was really only
getting an option to purchase his house.
Mike’s son, Michael David Ellis, II, also testified. He was a plaintiff individually
and on behalf of his son, Will, age 17. Michael was Jean’s oldest grandson. He
remembered Jean showing an “intoxicated-type effect” when she was taking her nerve pills
and pain medication. He said the medication would also impact her indecisiveness so that
she “would just go with the flow” and be agreeable to anything. Michael said after one of
the caregivers told him about Jean’s gift to Christina, he confronted Jean about it, and she
seemed surprised. He investigated the records of the county property assessor and then
knew for certain that it was true. Michael said he had heard that the house was proposed
as a place to care for his father Mike in the event of Jean’s passing. He agreed that Jean
was always very protective of his father and fearful of what would happen to him when she
passed. However, he said that his father had always disliked Christina, even before he had
dementia. He said Mike tolerated Christina out of respect for Jean but disliked Christina
and Judy a lot and made comments as soon as they left. When asked it if was possible that
Christina had no idea about Mike’s true feelings, he said, “it would have taken somebody
who really had their head in the sand” and was just “oblivious to [the] facts.” He said Mike
would “put on his game face” around Christina but that his true feelings would still “shine
through.” He said everyone in the Ellis family knew Mike felt this way.
Michael had discovered the liquidated Prudential annuity after Jean’s death. He
also testified about the meeting with the beneficiaries at Chambliss Bahner when
“everybody at the table -- all the Ellis[es],” expressed their concern about the gift and their
desire for the estate to pursue a claim against Christina. He said Mr. Jett would not serve
as executor if they pursued the claim, nor would Chambliss Bahner represent the
executor/bank with respect to any claim against Christina. Michael was represented by
separate counsel and had incurred attorney fees and expenses in pursuing this litigation
against Christina.
Jean’s long-time attorney, Stephen Jett, also testified. He described his involvement
with Jean in various transactions over the years before he retired in March 2015. Although
there had been numerous communications between Mr. Jett and Christina regarding Jean,
Mr. Jett said he had never represented Christina individually or her business. He did agree
that Christina and Chambliss Bahner had a “business referral relationship.” When he
retired, Mr. Jett had suggested that Jean work with associate Ryan Barry. Mr. Jett testified
that Mr. Barry had been involved in discussions about Jean prior to his retirement, but he
could not recall Mr. Barry ever meeting Jean in person before he left. Mr. Jett said he
attended Jean’s funeral and learned about the gift to Christina when speaking with one of
Jean’s family members. Although he had retired, Mr. Jett had planned to serve as executor
- 21 -
of Jean’s estate until he learned that the beneficiaries wanted to pursue a claim against
Christina. Mr. Jett said he had no desire to get involved in something that complicated and
time-consuming. He said the next successor executor in line was the bank that was
ultimately appointed as executor.
Ryan Barry testified as well. He had started at Chambliss Bahner during the summer
of 2011 right after graduating from law school. At the request of Mr. Jett, he had drafted
Jean’s revised will and power of attorney documents in 2012. He testified that Jean
initialed the provision in the power of attorney stating that noncharitable gifts were not
allowed to be carried out by the attorney-in-fact. Initially, Mr. Barry testified that he first
“met” Jean when he drafted these documents in 2012 and that he would “meet” with her
once or twice a year thereafter as various issues arose. However, Mr. Barry later clarified
that when the subject of the gift arose in 2015, he had “spoken with” Jean before, but he
could not remember if he had ever met Jean “face to face.” Mr. Barry conceded that he
did not know Jean extremely well personally. He said he was “not intimately personally,
you know, knowledgeable of her situation or anything to that extent.” He “vaguely”
remembered the “concept” of the November 2013 letter regarding the need to conserve
Jean’s assets but did not remember the document specifically.
Mr. Barry testified that Jean became “much more active in 2015” and began to make
several inquiries regarding her estate plan, but he acknowledged that most of the contact
was “initiated by” Christina. He said the two main changes to her estate plan were the right
of first refusal to Nick and the gift to Christina. Mr. Barry said he had represented Christina
“as attorney in fact through [Jean’s] file” but not individually. He had spoken with other
individuals on the firm’s estate and trust team about Christina as an option for a caregiver.
During his deposition, Mr. Barry’s recollection of his contact with Jean was quite
limited. He could not recall when he first heard that there was a gift being contemplated,
and he did not specifically recall Christina’s email to Sally Brewer about the gift. When
asked at his deposition whether he remembered any discussion about the money being used
to purchase a house, he said, “I vaguely remember purchasing a house being out there.”
Regarding the extent of his conversations with Jean, he testified during his deposition:
Q. Do you know – when you talked with Jean – this indicates that you
actually had a telephone conversation with her.
A. Several, yeah.
Q. Well, there’s only a reference to one. I’ve seen no record of any other
– I’m talking about in this timeframe. I see only – there was a
reference somewhere to you talking with her. I think maybe it was in
Exhibit 38 that you said you actually called her up.
A. I do recall talking to her on the phone, if that’s the question.
Q. Right. That’s right. Do you recall the content of the conversation?
A. What her desires were.
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Q. All right. And her desires were what?
A. I don’t recall.
Q. Do you recall whether she mentioned anything to you in that
conversation about a house – using the money for a house?
A. Are we talking about my conversations with Chris or with Jean?
Q. Jean.
A. And you’re saying she was talking about a house?
Q. I was asking, Did you have any conversation with Jean where Jean
was talking about the money being used to buy a house for Chris to
keep Mike.
A. I don’t recall.
Also, during his deposition, Mr. Barry testified that he sent Sally Brewer to Jean’s house
to do a cognitive screening before Jean executed the documents “to be extra sure” that Jean
“had the capacity to execute [the] documents.” He said he did not give Ms. Brewer any
direction or instruction about investigating whether there was undue influence on Jean.
When asked during his deposition if he had done any independent investigation of undue
influence himself, Mr. Barry said yes, he did, “[t]hrough the interactions I had with Chris
and with Jean[.]” Counsel asked Mr. Barry if this conversation with Jean happened around
August 3, when he had talked with Jean by phone and she told him that she wanted him to
draft the documents. Mr. Barry said, “That was one conversation, yes.” Counsel then
emphasized that if there were any more conversations that occurred around the timeframe
of the gift, he wanted to hear about them. Mr. Barry said, “I don’t specifically recall what
we talked about. I know there were conversations, but that was not the only time I spoke
with [Jean] within the timeframe of this conversation.” Mr. Barry was again asked to
describe any other conversations he had with Jean between July 31, when Christina emailed
Ms. Brewer about the gift, and August 17, when the “gift check” cleared the bank. Mr.
Barry admitted that he could not specifically recall any other conversations with Jean.
At trial, however, Mr. Barry recalled significantly more about his interactions with
Jean. Mr. Barry said he and Jean had “several conversations over the phone.” He
remembered that he had an in-person meeting scheduled with Jean for July but that it was
canceled. After it was cancelled, he said, he “scheduled several phone conferences with
her to go over these different items.” He testified that he recalled three phone calls with
Jean before the gift transfer document was executed. He said the first call occurred
sometime after Christina’s July 7 email to Ms. Brewer requesting a meeting regarding
changes to Jean’s will but before she canceled the July 21 meeting. The second phone call
he remembered was after Christina’s July 31 email to Ms. Brewer asking for some kind of
legal document regarding the gift but before Ms. Brewer went to the home. The third was
“a brief conversation” by phone while Ms. Brewer was at Jean’s home on August 5.
However, Mr. Barry admitted that he did not have any notes or memoranda that related to
the content of these phone conversations. He initially said he was “sure” he had some sort
of billing entry for his conversation with Jean. Later, however, he conceded that billing
- 23 -
records from Chambliss Bahner showed three entries on Jean’s file by Ms. Brewer in July
2015 but no entries by him. He explained that he did not always bill all of his time,
especially for phone calls.
Mr. Barry also recalled at trial that Christina was the one who initially brought the
gift to his attention. He remembered Christina emailing him records from the oncology
clinic regarding Jean’s decision-making capacity and reviewing them briefly. He said he
was not concerned by the fact that someone holding power of attorney was contacting the
firm about a gift to herself any “more than normal.” He said his firm had policies in place
for gifting or revising estate plans to address two main areas – competency and ensuring
that “the individual is carrying out what they want to carry out.” He said they ensure
competency typically by speaking with the individual to be sure he or she can provide
general information, and in this case, he “had the luxury of having a certified dementia care
specialist” on the team, meaning Sally Brewer. Mr. Barry was asked if undue influence
would fall under the second category. He said, “Knowing what undue influence is, I would
say it would generally fall under that. I don’t mentally compartmentalize it as I’m going to
test competency and undue influence. In my mind, it’s more I’m making sure the individual
is carrying out their specific wishes and they understand what is going to happen when they
do carry out their specific wishes.” He said “whether it’s [Jean] or anyone else making a
significant gift,” it would generally involve making sure it is what Jean “wants to do” and
that she can explain what she wants to do and understands what they are discussing and
what effect it is going to have on everything.
Mr. Barry confirmed that he spoke with Jean specifically regarding the gift to
Christina “over the phone.” He said some of his goals in making the call were to ensure
“this was [Jean’s] intent” and “what she wanted to do” and “to confirm [that Jean] was
acting on her own accord and that she knew what she was doing.” He said, to his
knowledge, the phone conversation was only between Jean and him and that he had no
reason to believe that someone was “listening in.” However, he could not be certain that
Christina or Judy was not sitting with Jean during their conversation. Mr. Barry said the
conversation involved review of the estate planning documents Jean had in place to
determine if she wanted any revisions to trustees, executors, agents, or amounts. He said
he also spoke to Jean about the gift and the right of first refusal. He said Jean confirmed
that she did want to go forward with the right of first refusal Mr. Jett had drafted and the
gift to Christina. Mr. Barry said he would have briefly discussed the “Transfer and
Assignment” document he drafted for the gift and said “generally what it represented and
what it stood for to her.”
When asked if he discussed with Jean any of the consequences of the gift, Mr. Barry
said that his “process, in general,” involves making sure the person making a gift is doing
what they want to do, meaning, knows the facts regarding what they want to do, the tax
implications, and the fact that the person cannot “undo that once it’s done.” So, Mr. Barry
said that with Jean, “my conversation generally involved, first and foremost, what do you
- 24 -
want to do; and [Jean] explained that she wanted to make this particular amount to
[Christina] as a lifetime gift.” Mr. Barry said he “briefly mentioned to her that she would
not owe any gift or estate tax.” Finally, he mentioned “the general fact that there are no
take backs when you do lifetime gifts.” Mr. Barry said he did not recall “specifically going
through the dollar-for-dollar consequences of what’s going where,” but he did recall
saying, “What do you want to do? Here are the tax implications, and you do not get to undo
this once it’s done. This is not part of your estate plan anymore. It’s done once it’s
complete.”
When asked if he knew the nature and extent of Jean’s estate at the time of the gift,
Mr. Barry said, “Just, again, the general – there’s several million in play out there from the
husband’s estate and from her estate and real estate and different assets.” It was not his
understanding that the gift would render her insolvent, but he admittedly did not know
“specific dollar figures” or the amount of cash in her accounts. He knew that Jean’s
caregivers were costing a significant amount but did not know how much. When asked if
Jean understood the “nature and extent of her bounty,” he said she “seemed to” and that he
did not have any reason to believe that she did not. He said, “From what I recall, she knew
generally what assets she had and what values they had associated with them.” He said he
“didn’t discuss specifically how the gift fit into the estate plan from the standpoint of the
documents and whatnot, but I will say again that part of my discussion on the gift was,
Here is what you want to do, confirming that, tax implications, and then, You don’t get to
take this back.” He said, “[W]hen I say I made sure that she was knowing what she wanted
to do, that included not only what do you want with respect to amount and who, but, also,
here is the tax implication and you know that there’s no take backs when we’re done with
this.” Mr. Barry was asked about his deposition testimony that the content of his
conversation with Jean simply consisted of “[w]hat her desires were,” and when asked what
those desires were, he had responded, “I don’t recall.” Mr. Barry said it was true that he
could not recall at the time of his deposition.
When questioned about the circumstances surrounding the gift, Mr. Barry said he
was not aware that a check for $175,000 had already been drafted on or about July 30,
before Christina contacted the firm about the gift. He did not know Christina was holding
the check because there were insufficient funds in Jean’s account. However, he said he
would have most likely acted the same way if he had known about it, “as long as [Jean]
still convinced me that she was competent and knew what she was doing and understood
what was going on.” Mr. Barry did not know about the $1,000 check for the earnest money
either. He also did not know “where the money came from” to cover the gift and did not
know that Christina had liquidated Jean’s annuity using the power of attorney. Again,
however, he said he “would have carried out the same thing I carried out, making sure that
[Jean] was the one doing it, that she understood what was going on, that it wasn’t anybody
else but her.” Mr. Barry did not explain to Jean how the transfer would impact any other
beneficiaries of her estate other than his statement that she “can’t undo it once you’ve done
it.” He did not know if anyone else in the Ellis family was aware of the gift.
- 25 -
Mr. Barry said that after speaking with Jean on the phone, he did not have concerns
about her mental capacity to make a gift, but he “took one extra precaution” by sending
Sally Brewer out “to complete one of her dementia care specialist workups simply to make
extra sure that she was competent and mentally sound.” He said this was a regular
occurrence in situations where the client’s family situation is less than cordial. Mr. Barry
said he directed Ms. Brewer “to do a cognitive screening” and gave her discretion as to
whether Jean could sign the documents, so if she did not feel that the cognitive screening
went well then, she could bring the documents back unsigned. However, he confirmed that
he “did not specifically give her instruction on undue influence,” he “simply told her to do
what we always did.” Mr. Barry said Ms. Brewer called him from Jean’s house because
Jean wanted to confirm that Grady Williams “was indeed still over her affairs.” Mr. Barry
said he did confirm to Jean over the phone that Mr. Williams was still over her affairs. Mr.
Barry acknowledged at trial that Mr. Williams was not involved with the gift, but he said
he confirmed to Jean that Mr. Williams was over her affairs because he was “involved in
her affairs in the sense that he stayed in contact with her and knew the general extent of
her assets.”12
Sally Brewer also testified at trial. She had been employed at Chambliss Bahner
since 2012. Her official title was “Care Coordinator . . . Slash paralegal.” However, when
she began work at the law firm, the reason she was classified as a paralegal was because
the firm did not have a classification for a Care Coordinator. She had no formal legal
training at the time and had not attended “paralegal school.” She had a college degree in
“therapeutic recreation and special populations,” and her work history was in the geriatric
field. After college, Ms. Brewer had worked as a therapeutic recreation specialist at a
rehabilitation center, at a nursing home as a certified activity director, at an assisted living
facility as a program director, and at an adult daycare. She then became a program director
for the Chattanooga South Chapter of the Alzheimer’s Association. She left that job to
become a personal care assistant for an elderly individual with dementia then worked at a
small financial planning firm before starting at Chambliss Bahner. At some point during
this employment history, around 2009, she had obtained a certification as a “Qualified
Dementia Care Specialist” through the Alzheimer’s Foundation of America. After she left
the nursing home and adult daycare setting and began working on “the financial and legal
side of aging,” she obtained a different certification as a “Certified Dementia Practitioner”
because it was “a better fit” in light of her having less “hands on” time with patients. At
the time of trial, Ms. Brewer was still certified as a “Dementia Practitioner” with the
“National Council of Certified Dementia Practitioners.” Ms. Brewer testified that she was
brought on board at Chambliss Bahner to help attorneys with the “social aspect and the
cognition aspect of their elderly clients.” She explained that the “cognitive screening” she
12
Grady Williams was asked at trial if he was “over the affairs of Jean Ellis,” and he responded,
“Over the affairs. No, absolutely not.” He said he was co-trustee of the family trust but “not over Jean’s
affairs at all” and “had nothing to do with Jean’s affairs.”
- 26 -
performs is “[t]esting to see if someone has knowledge and insight and intent in a thought
process and just can comprehend.”
Ms. Brewer identified the email she received from Christina requesting some kind
of legal documentation of the gift. Ms. Brewer said she and Christina had worked on other
cases together in the past with another attorney at Chambliss Bahner. However, she said
her first involvement with Jean was when Ryan Barry asked her to do a home visit to make
sure Jean was not “being coerced” and that “she had the capacity to do what she was being
asked to do[.]” She had reviewed Jean’s file before she went. Ms. Brewer recalled seeing
a doctor’s statement that he believed Jean had decision-making capacity but did not recall
if she knew Jean was prescribed hydrocodone. Ms. Brewer did not remember looking at
any specifics regarding Jean’s estate or what she owned. She said Mr. Barry’s biggest
concern was whether Jean had dementia and was capable of signing the documents, so her
“job number one” was to see if she was competent and had capacity to sign.
Ms. Brewer testified that when she arrived at Jean’s house on August 5, Christina
answered the door, and she also saw Jean, Mike, and one or two caregivers. Ms. Brewer
did not know if Christina’s mother Judy was present because she did not know her and
would not have recognized her. Ms. Brewer said they stayed inside the home for a little
bit, exchanging pleasantries, then she suggested that they go to a private area to talk. She
said Jean suggested the back porch, which had a sliding glass door. Ms. Brewer said that
Christina did not follow them to the back porch but that a caregiver may have initially. She
testified that no one was in the room at the time of their discussion besides her and Jean.
Ms. Brewer recalled seeing medication bottles around Jean. She said Jean was on hospice
care and that oxygen was also near her recliner. She recalled that Jean had cancer, asthma,
anxiety, and depression. She described Jean’s demeanor as “short of breath . . . but she
was very pleasant.” She said Jean had “good communication” and did not act groggy,
loopy, or sleepy or otherwise show effects of narcotic medication. However, because Jean
had obvious “shortness of breath making lengthy conversation difficult,” Ms. Brewer had
attempted to make the visit as “short and to the point as possible.”
Ms. Brewer testified that there are a number of tests that one should “pull” from
during a cognitive screening, depending on the circumstances. She said she used “a couple
of different tests” when speaking with Jean, including a Mini Mental Status Exam and the
St. Louis University Mental Exam. The written memorandum she had prepared stated that
she completed “a quick cognitive screening” and that Jean “did not fail orientation and
memory questioning.” It further stated, “It is my professional opinion as a Qualified
Dementia Care Specialist that [Jean] had the capacity on August 5, 2015 to make decisions
regarding her estate planning desires.” When asked at trial if there was a score from Jean’s
cognitive testing, Ms. Brewer responded, “I didn’t do a full – I didn’t go through – there’s
30, a possible 30 points. I didn’t go through the whole thing.” She said she “did a little bit
of the tool, a little bit of observation,” and “some long-term memory questioning.” She
said the cognitive screening was “ongoing” throughout the entire meeting. Ms. Brewer
- 27 -
recalled that Jean discussed her recent health issues and pointed out things about her home
and surrounding property. She said Jean also discussed her property in general, indicating
she knew she had a certain amount of wealth, although Jean did not mention any specifics
or “dollar figures.” Ms. Brewer knew Jean was wealthy but did not know how much money
she had. She recalled Jean also talking about her family and the fact that she appreciated
them taking care of her.
Ms. Brewer said after about 20 minutes of conversation, they started to discuss her
estate plan. She said Jean wanted to make sure things were set up the way she wanted, and
questions arose about her executor and “who was in charge of her things” and “over her
affairs.” She said it was very important to Jean to get confirmation that “Grady Williams
was still over her affairs.” Ms. Brewer said she could not answer Jean’s question so she
called Ryan Barry on speakerphone to ask him, and he had a conversation with them via
speakerphone about the estate plan. She said this conversation “made [Jean] feel
comfortable” and that she went on and on about how much trust she had in Mr. Williams
and “how pleased she was to have him assisting her.” Ms. Brewer said by the end of the
phone conversation, it was decided jointly, by her and Mr. Barry, that Jean had capacity to
sign the documents. Ms. Brewer testified that she read both documents to Jean before she
signed them. She said Jean talked about the documents and appeared to understand and
want to sign them. Like Mr. Barry, however, Ms. Brewer had no contemporaneous
knowledge that checks had already been written for $1,000 for earnest money and $175,000
to complete the gift. She did not know that Jean’s checking account had insufficient funds
to cover the gift or that Christina had requested a surrender of Jean’s annuity to cover the
difference. She was likewise unaware that Christina had represented to Jean that she would
take care of Mike at the house after Jean died.
When asked if any of the various tests she uses relate to competence, Ms. Brewer
said, “I think they all do.” However, when asked if the tests relate to coercion, she said,
“Not necessarily.” Still, Ms. Brewer said she does other “tests” regarding undue influence
or coercion. “First of all,” she said, “I ask the person.” Then, she said “there is a series of
observations that you can make with somebody that is being coerced or unduly influenced.
It’s definitely fear, isolation, over dependence, overwhelmed, being overwhelmed. I saw
none of that.” Ms. Brewer said she would also consider if someone was in the room with
the person “winking at them or twisting their arm.” She said she did not see anyone
watching her and Jean during their discussion or coaching Jean or communicating with her
in any way. When Ms. Brewer was asked if Christina ever tried to influence Ms. Brewer
with respect to the meeting, Ms. Brewer said, “I don’t recall. And if she would have, I
typically put clients in their place that try to do that and tell them that that’s above my pay
grade or take it to the attorney[.]” When asked if she and Christina had a personal
relationship around this time, Ms. Brewer again said, “I don’t recall. . . . I only recall
business social.” She described seeing Christina at monthly meetings, social worker
meetings, and senior networking meetings. She said she had referred Christina to some
people because Christina was a good case manager and she had done a phenomenal job on
- 28 -
a case they had worked on together. They had been referring business to each other since
around 2013. Ms. Brewer was aware that her endorsement was used on the Care
Connections website, along with that of an attorney at Chambliss Bahner.
Ms. Brewer identified the memo and timeline dated March 2016 that she had
provided to the attorneys at Chambliss Bahner regarding her August 2015 visit with Jean.
She had no explanation for why it was apparently prepared seven months after the fact and
said that her standard practice was to prepare a memo within 24 hours after a cognitive
screening. Ms. Brewer acknowledged the statement in her original memo that Jean “did
exhibit anxiety which may have contributed to her indecisiveness.” She said she wrote that
to let Mr. Barry know that Jean did not have anxiety because of dementia but due to “her
general anxieties.” Ms. Brewer was asked if she thought anxiety might indicate undue
influence, to which she responded that high anxiety or being overwhelmed might “make
[her] guard go up on coercion,” but she said Jean did not display anxiety “the whole time”
and was not overwhelmed. She said Jean showed anxiety after walking when she was short
of breath. She said generally Jean was calm and appropriate and that nothing was
suspicious. Ms. Brewer did not believe that indecisiveness would indicate undue influence.
She admitted, however, that she had received no formal training on undue influence. She
admitted during her deposition that she did not know the specific legal factors that courts
consider in determining whether there is undue influence. She also admitted at trial that,
as a nonlawyer, she did not attempt to give Jean any legal advice about the legal effect,
consequences, or advisability of giving $175,000 to the person holding power of attorney
for her.
Finally, Greg Willett from Chambliss Bahner testified about his involvement with
the estate administration after Jean died. He had communicated with Sally Brewer and
Ryan Barry and suggested that they create documents summarizing their interactions with
Jean in anticipation of litigation. Based on these and other documents available to
Chambliss Bahner, and discussions with Steve Jett, he decided not to pursue a claim for
undue influence. He believed it was beneficial to assign the claim to the residuary
beneficiaries so that each one could individually evaluate whether to pursue the claim and
retain his own attorney at his own expense. Mr. Willett also said he “understood that there
was a potential conflict of interest” with Chambliss Bahner when he was deciding whether
to assign the claim to the beneficiaries.13 Mr. Willett said the decision was made to remove
13
The following exchange took place during Mr. Willett’s testimony:
Q. Chambliss Bahner is sitting there trying to decide whether there is somebody –
whether there is a claim for undue influence is – is right in the middle of that case. They
are participants in the transaction, they were witnesses in the case, and they are completely
conflicted out of representing anybody in the litigation, right?
A. Hence the assignment to your clients.
Q. What I’m asking is: You understood that there was a conflict of interest?
A. I understood that there was a potential conflict of interest.
- 29 -
the sentence from Sally Brewer’s memo regarding anxiety and indecisiveness because he
did not feel that it was necessary after discussing the issue with her directly. According to
Mr. Willett, Ms. Brewer explained that her sentence was not intended to suggest incapacity
or undue influence, so the sentence was removed “to avoid any confusion.” He said this
was not meant to mislead the beneficiaries.
At the conclusion of the five-day trial, the trial judge took the matter under
advisement. On April 27, 2020, the trial court entered a 28-page written order with
extensive findings of fact and conclusions of law. Notably, after summarizing the
testimony of each witness, the trial court made several credibility findings that greatly
assist this Court on appeal. The trial court found that Ms. Smith and Ms. Melton, Jean’s
two caregivers, were both credible witnesses. The court also found that Jean’s grandsons
-- Nick, Hunter, and Michael -- were credible. As for trustee Grady Williams, the trial
court found him “objective and persuasive” and said “his concern about the propriety of
Chris’s conduct was clear and credible.” The trial court found the testimony of Ryan Barry
to be “credible” but gave it “less weight in light of the troubling fact that Mr. Barry’s most
direct interaction with Jean concerning the transfer of $175,000 was over the phone.” As
for Sally Brewer, the court “commend[ed]” her and Chambliss Bahner for attempting to
establish donative capacity, but, the court added, “Chris’s actions in acting first by writing
the Check prior to the Meeting and then later attempting to utilize [Chambliss Bahner] and
its staff to ‘bless’ the transfer after-the-fact significantly reduces the persuasiveness of the
[Chambliss Bahner] witness’s testimony.” The trial court found the testimony of Greg
Willett, counsel for the bank/executor, “contributed little to the issues to be decided”
because “his primary participation was long after the events giving rise to this action.” The
court found that “Judy was credible only to the extent that she had some affection for Jean,
but her testimony was otherwise not persuasive.” The trial court did not include an overall
credibility determination regarding Christina, but it found that her testimony that she did
not know how the Prudential annuity check was deposited in Jean’s account was
“precarious at best.”
The trial court noted the parties’ stipulation that a confidential relationship existed
between Christina and Jean. For reasons that will be discussed in greater detail below, the
trial court also found the existence of “multiple suspicious factors” in this case. Thus, the
trial court concluded that a presumption of undue influence had arisen. The court noted
that Christina and Judy had attempted to overcome the presumption of undue influence and
show that the transfer was fair by relying on the involvement of Chambliss Bahner to show
independent advice. However, the court concluded that this evidence did not overcome the
presumption of undue influence. The trial court found that Christina violated the terms of
Counsel later asked “when you-all found out that these folks wanted to pursue that claim . . . in that
meeting,” “you could not handle that because you were conflicted out, right?” Mr. Willett responded,
“That’s right.”
- 30 -
the power of attorney by cashing out the annuity to enable her to purchase a house for her
own benefit and violated her fiduciary duties by engaging in actions showing “self-dealing
and a complete lack of loyalty and good faith to the principal, Jean.” It found that the
correct amount of damages to be awarded was $176,000, which represented the earnest
money and subsequent gift check to Christina. Judgment was entered against Christina in
that amount. However, the trial court noted that Judy did not receive either of the two
checks, so it dismissed the claims asserted against Judy. Finally, with respect to the
plaintiffs’ request for attorney fees, the trial court found that “[a]ttorney fees are not
available under the current caselaw relating to undue influence and are not sought pursuant
to any relevant statute.” Thus, the request was denied. Christina timely filed a notice of
appeal to this Court.
II. ISSUES PRESENTED
Christina raises the following issues for review on appeal:
1. Whether the trial court erroneously based its decision in part on Christina’s failure
to prove Jean’s competency at the time of the gift when competency was stipulated
not to be at issue;
2. Whether the trial court erred in finding there were suspicious circumstances; and
3. Whether the trial court erred in finding undue influence when Jean received
competent independent advice from her attorney and underwent a cognitive
screening from a qualified dementia care specialist before depositing the check.
In their posture as appellees, the plaintiffs raise the following additional issues:
1. Whether the trial court erred in concluding that attorney fees were not available
under current caselaw relating to undue influence;
2. Whether the plaintiffs should be awarded their attorney fees and expenses incurred
in defending against Christina’s appeal.
For the following reasons, we affirm the finding of undue influence, reverse the denial of
attorney fees, and remand for the trial court to determine a reasonable award for the fees
incurred at trial and on appeal.
III. DISCUSSION
“The dominant rule in Tennessee and elsewhere is that the existence of a
confidential relationship, followed by a transaction wherein the dominant party receives a
benefit from the other party,” gives rise to a presumption of undue influence that “may be
rebutted only by clear and convincing evidence of the fairness of the transaction.” Matlock
v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995) (citing Roberts v. Chase, 166 S.W.2d 641(Tenn. Ct. App. 1942); Richmond v. Christian, 555 S.W.2d 105 (Tenn. 1977); Hogan v.
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Cooper, 619 S.W.2d 516 (Tenn. 1981); Brown v. Weik, 725 S.W.2d 938 (Tenn. App. 1983);
Estate of Depriest v. Allen, 733 S.W.2d 74 (Tenn. App. 1986); 19 A.L.R.3d 575, 596).
Here, Christina concedes that a confidential relationship existed. See In re Estate of Link,
542 S.W.3d 438, 453 (Tenn. Ct. App. 2017) (“[A] confidential relationship arises as a
matter of law when an unrestricted power of attorney is granted in favor of the dominant
party and is, in fact, exercised by the dominant party.”) “The execution and exercise of a
power of attorney establishes a fiduciary relationship between the attorney-in-fact and the
grantor of the power,” such that the fiduciary is obligated to deal with the property of the
principal in the utmost good faith. Bottorff v. Sears, No. M2017-01363-COA-R3-CV, 2018
WL 3574745, at *6 (Tenn. Ct. App. July 25, 2018) (citation omitted). “[T]he presumption
of undue influence extends to all dealings between persons in fiduciary and confidential
relations, and embraces gifts, contracts, sales, releases, mortgages and other transactions
by which the dominant party obtains a benefit from the other party.” Parish v. Kemp, 179
S.W.3d 524, 531 (Tenn. Ct. App. 2005) (quoting Gordon v. Thornton, 584 S.W.2d 655,
658 (Tenn. Ct. App. 1979)). Christina was the dominant party in the confidential
relationship and clearly benefitted from the gift. Thus, a presumption of undue influence
arose, and Christina must establish that the transaction was fair by clear and convincing
evidence. Id.“Determining whether undue influence has occurred is a question of fact.” Jarnigan
v. Moyers, 568 S.W.3d 585, 591 (Tenn. Ct. App. 2018) (citing Cartwright v. Jackson
Capital Partners, Ltd. P’ship, 478 S.W.3d 596, 607 (Tenn. Ct. App. 2015)). As such, an
appellate court must “affirm the trial court’s finding of undue influence unless the evidence
preponderates otherwise.” Id. Because direct evidence of undue influence is rarely
available, undue influence can be established by showing “suspicious circumstances”
leading to a conclusion that the allegedly influenced person did not act freely and
independently. Id. At the same time, however, a presumption of undue influence can be
rebutted by showing a lack of suspicious circumstances. In re Est. of Lipscomb, No.
W2018-01935-COA-R3-CV, 2020 WL 1549596, at *10 (Tenn. Ct. App. Apr. 1, 2020)
(citing Parish v. Kemp, 308 S.W.3d 884, 891 (Tenn. Ct. App. 2008)). The following
“suspicious circumstances” are relevant to the analysis:
(1) the decedent’s advanced age and/or physical or mental deterioration; (2)
the dominant party’s active involvement in the transactions at issue; (3)
secrecy concerning the transaction’s existence; (4) the lack of independent
advice; (4) the decedent’s illiteracy or blindness; (5) the unjust or unnatural
nature of the transaction; (6) the decedent being in an emotionally distraught
state; (7) discrepancies between the transaction and the decedent’s expressed
intentions; and (8) fraud or duress directed toward the decedent.
Id. at *11 (citing In re Est. of Brindley, No. M1999-02224-COA-R3-CV, 2002 WL
1827578, at *14 (Tenn. Ct. App. Aug. 7, 2002)). The scope of evidence regarding fairness
is quite broad, and there is no mathematical formula for determining the number or type of
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suspicious circumstances that will support a finding of undue influence. Id. at *10-11.
Ultimately, the difficulty of establishing the fairness of a transaction can vary depending
on the circumstances of the case and the strength of the presumption of undue influence.
Id. at *10 (citing In re Est. of Murdaugh, No. W2011-00041-COA-R3-CV, 2011 WL
6141067, at *3 (Tenn. Ct. App. Dec. 8, 2011)). Proof of independent advice may be
required if the fairness of the transaction would be difficult to prove otherwise, but this
requirement typically arises when the transaction in question is a gift from a feeble or
incompetent subservient party and leaves the donor impoverished. Id.In the case at bar, the trial court found the existence of “multiple” suspicious
circumstances. On appeal, Christina argues that the trial court erred in finding any
suspicious circumstances because “there was a total lack of proof of anything suspicious
about the circumstance[s.]” On this issue, we agree with the trial court. First, we note that
Jean was of advanced age and experiencing both physical and mental “deterioration.” See
In re Est. of Lipscomb, 2020 WL 1549596, at *10. The trial court found that “Jean’s mental
and physical health [had] declined.” She was 83 years old at the time of the gift and in the
midst of a long battle with pancreatic cancer, which led to her death six months later. She
suffered from depression. The trial court found that Jean “required constant medication
and caregiving assistance for daily activities.” It noted that Jean was medicated with
hydrocodone and Xanax. It noted Christina’s testimony that Jean experienced confusion.
We cannot agree with Christina’s argument on appeal that Jean’s pain medication “bear[s]
no relationship to the transaction” or that there was no proof that Jean “was on pain killers
at any time involving the gift, especially the meeting with Ms. Brewer.” The trial court
specifically credited the testimony of Jean’s caregivers that she was “always on medication
to some extent” over Christina’s testimony to the contrary. “We will not second-guess the
trial court’s credibility determinations without clear and convincing evidence to the
contrary,” which this record does not contain. Abdur’Rahman v. Parker, 558 S.W.3d 606,
624 (Tenn. 2018). The trial court also noted that even Christina had “expressed concern”
to Chambliss Bahner about Jean’s competency and memory and taken her to a doctor to
have her mental state evaluated. The trial court described Jean as being in a “fragile mental
and physical state” and “under hospice care.” We agree with the trial court that these were
suspicious circumstances. As Christina put it during trial, Jean “would have been
vulnerable to anybody.”
Christina argues that the trial court ignored testimony from a caregiver about Jean
declining to sign estate documents until they were revised three or four times, which,
according to Christina, shows that Jean was “strong willed.” Whether a decedent remained
strong-willed is an appropriate consideration. Courts have “considered evidence that the
decedent was still capable of making her own decisions, and the decedent had a headstrong
personality.” Simpson v. Simpson, No. E2018-01686-COA-R3-CV, 2019 WL 2157937, at
*6 (Tenn. Ct. App. May 17, 2019) (internal quotations omitted). In Simpson, for instance,
the Court considered that the decedent was “a strong-willed man who was not easily led
by others.” Id. at *8; see also In re Est. of Maddox, 60 S.W.3d 84, 90 (Tenn. Ct. App.
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2001) (describing the decedent as a strong willed woman who was “not controlled by
anyone”). However, Grady Williams testified that Jean was a person who “changed her
mind a lot.” He said, “Today she wanted to do this. Tomorrow she wanted to do something
else. Change her will, or change this, change that. She was a very changeable person; a
person that kind of listened to everybody and probably whoever the last person she talked
to was the thing that she was interested in and okay with, but she was a very changeable
person.” Thus, the testimony credited by the trial court shows that Jean was easily led by
others and more susceptible to undue influence.
Another factor to consider is whether the decedent was in an emotionally distraught
state. The trial court found this factor was also useful for evaluating the facts in this case.
It noted the caregiver’s testimony that Jean would become “upset when discussing her
estate, sometimes to the point of suffering panic attacks.” It also mentioned Nick’s
testimony that Christina once told him to give Jean a hydrocodone before a meeting about
her will. Ms. Brewer’s memo also noted Jean’s anxiety and indecisiveness on the day she
executed the document.
Another circumstance to consider is whether Christina was actively involved in the
transaction at issue. We conclude that she was. As counsel for Nick and Hunter aptly
stated during closing argument, “Ms. Duggan’s fingerprints are all over this thing.” She
admittedly had several discussions with Jean about buying the house and made statements
that could be perceived as influencing Jean to buy it. The following exchange occurred
during her testimony:
Q. You told Jean – you told Jean that if she gave you the money to buy
that property at 5532 Shady Branch Drive, you would take care of
Mike Sr. there[,] after he – after she died?
A. I told her I would be glad to take care of him if Rick would allow him
to live with me. We knew that that was not definitive.
As Ms. Smith, one of the caregivers, described it, “I felt that she was trying to coach Jean
into buying it for her by using Mr. Mike.” Christina was also actively involved in the
details of the transfer. The earnest money check was completely in Christina’s
handwriting, the check to herself for $175,000 was all in her handwriting except for Jean’s
signature, and the annuity surrender paperwork was submitted solely by Christina as
“POA.”14 The trial court noted that Christina was the one who contacted Chambliss Bahner
14
Christina’s brief on appeal suggests that the trial court incorrectly framed the issues by stating that there
were three transactions giving rise to this dispute – the earnest money check, the gift check, and the
liquidation of the annuity. Christina argues that the single issue should have been the validity of a single
gift made on August 5, when Jean executed the document with Ms. Brewer. However, she cites no authority
with respect to this argument and does not explain her position that this was a “fundamental mistake[] of
law.” We discern no error in the trial court’s reference to these three transactions in connection with the
gift.
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to see if there was a document that could be executed to memorialize Jean’s gift to her.
The trial court was “troubled” by the way Chambliss Bahner’s involvement was initiated
and pointed out that most of Mr. Barry’s communication was with Christina rather than
Jean. Christina was also present at Jean’s home when Ms. Brewer brought the documents
for Jean to sign. The court referenced the testimony of Grady Williams that Christina
called him and asked whether the trust could fund the transfer. Notably, the trial court
stated that it “finds credible, and is persuaded by,” the caregiver testimony that Christina
and Judy “worked on” Jean in her fragile mental and physical state in order to benefit
themselves. It also found that Christina’s role as Jean’s power of attorney “provided her
plenty of opportunities to influence the distribution of Jean’s assets.” It found that
Christina had inquired about having the trust purchase a house that would revert to her as
early as 2013, which “casts into doubt any notion that the funds for the House were Jean’s
idea.” We agree with the trial court that Christina was an integral part of this transaction,
and her extensive involvement in orchestrating the transfer was suspicious.
The next consideration is secrecy concerning the transaction’s existence. On appeal,
Christina argues that “there was no secrecy about the Gift which Jean wanted to make.”
According to Christina, “[t]here may have been some lack of disclosure about some of the
events necessary to implement the Gift, but there was no secrecy about the Gift itself.” She
argues that Chambliss Bahner knew about the gift, along with her mother Judy, Judy’s
husband, and Christina’s friend. The trial court’s final order states that the court was
“startled by the amount of secrecy Chris and Judy employed in this case” and “concerned
by the level of secrecy in which Chris cloaked her actions.” It noted Christina’s admission
that she did not discuss the gift or the liquidation of the annuity with Jean’s grandsons
because she considered it Jean’s private business. At the same, the trial court noted,
Christina admitted she anticipated that they would take issue with the transfers and that she
was seeking “protection and validation” as a result. The trial court found that Christina
“carefully and deliberately concealed her actions from Plaintiffs for fear she would not be
able to consummate the transfer if her plan was known.” The record supports these
findings. Christina argues on appeal that she had no “duty” to inform Jean’s heirs about
the gift. That may be so, but secrecy is still a suspicious circumstance to be considered in
the undue influence analysis.
Suspicious circumstances can also include “the unjust or unnatural nature of the
transaction” and “discrepancies between the transaction and the decedent’s expressed
intentions.” In re Est. of Lipscomb, 2020 WL 1549596, at *11. We deem several facts
relevant to these factors. First, with specific regard to the annuity, the trial court noted that
Jean had named three of her grandsons as the beneficiaries, and it found “no credible
testimony that Chris ever obtained permission to cash out the Annuity to fund the $175,000
transfer.” Also, the trial court found that “the notion of Mike Sr., ever living with Chris
was speculative at best.” The trial court acknowledged Christina’s suggestion that a gift
of $175,000 was not an unjustly large portion of Jean’s estate of around $1.8 million. On
appeal, Christina similarly argues that the gift did not leave Jean insolvent. Still, Jean’s
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will had only left $70,000 to Christina and the majority of her estate to her sons and
grandsons. In addition, Grady Williams testified that “with an estate no larger than Jean’s
was,” a gift to Christina of $175,000 in 2015 was “a very, very substantial gift,” especially
in light of the plan that was put in place to liquidate some of Jean’s assets and conserve her
resources for her expensive caregivers. In fact, Jean did not have sufficient liquid funds to
cover the gift. Christina argues on appeal that the gift was not unnatural because Jean had
given her grandson Michael thirteen acres in 2013, the day before she went into surgery.
However, Christina’s mother testified that she had not considered that transaction a gift.
Another individual was permitted to continue living on the property for his lifetime. Mr.
Jett’s records referred to the transfer as a gift and reflected that Jean had struggled to decide
whether it would “count against his share under her will,” and ultimately, she concluded
that it would not. However, we note that Jean’s grandson Nick was required to use his
inheritance money to purchase the house where he lived. By all accounts, Jean was very
frugal. Thus, several aspects of the gift to Christina could be considered unjust, unnatural,
and in conflict with Jean’s otherwise expressed intentions.
As additional “evidence of Chris’s bad acts” supporting a finding of undue
influence, the trial court found that Christina breached the terms of the power of attorney
by using it to make a gratuitous transfer to herself. The document stated, “I specifically
prohibit my attorney-in-fact from making any non-charitable gifts, grants or other
gratuitous transfers pursuant to this power of attorney.” The trial court found that Christina
“violated the terms of her POA in cashing out the Annuity to fund the Check prewritten
from Jean’s account to enable [her] to purchase the House for her own benefit.” The trial
court found that “gifting [was] banned altogether,” that Christina “was not permitted to gift
herself Jean’s assets under any circumstances,” and that she “knowingly violated the POA
to benefit herself.” It found that, pursuant to the power of attorney, Christina “had no
authority to authorize any gift or gratuitous transfer to herself, even at Jean’s direction.”
Christina argues on appeal that the trial court erred in its conclusion regarding the power
of attorney. After making the above findings, the trial court stated that Ryan Barry had
testified that Christina could not self-gift “even at Jean’s direction,” and that the principal
would have to effectuate a gift herself. This is not entirely correct. Initially, Mr. Barry did
testify that Jean initialed the option that would not allow noncharitable gifts “to be carried
out by the agent.” In other words, he said the attorney-in-fact would not have “gifting
authority.” He said this would prohibit “any gifts, period, to herself or otherwise.” Upon
further questioning, however, Mr. Barry said there were a number of sections dealing with
conducting business and transactions generally, which “could be interpreted to say if the
principal has asked me to make this transaction, then I can carry out that transaction
whether it’s to myself or someone else.” Thus, Mr. Barry said that if the directed
transaction involved shifting funds to individuals, he “suppose[d]” he would interpret it to
mean that the agent could consummate a gift to herself if it was at the direction of the
principal.
In summary, the trial court’s characterization of Mr. Barry’s testimony was not
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entirely accurate. However, regardless of Mr. Barry’s opinion on that issue, we agree with
the trial court’s conclusion that Christina violated the power of attorney through her
conduct in this case. The power of attorney clearly prohibited Christina “from making any
non-charitable gifts, grants or other gratuitous transfers pursuant to this power of attorney.”
(emphasis added). Yet, as the trial court found, Christina utilized the power of attorney to
cash out the annuity, signing the documents with her own name and the designation of
“POA,” in order to fund the check enabling her to purchase the house for her own benefit.
The trial court found “no credible testimony that Chris ever obtained permission to cash
out the Annuity to fund the $175,000 transfer.” (emphasis added). Thus, we reject
Christina’s argument with respect to this issue. See In re Conservatorship of Patton, No.
M2012-01078-COA-R3-CV, 2014 WL 4803146, at *4-5 (Tenn. Ct. App. Sept. 26, 2014)
(acknowledging an agent’s argument that gifts were accomplished through “consent”
because the principal “authorized her to make the transfers in question; thus, she did not
act under the power of attorney,” but finding the proof showed that the transactions were
accomplished “through the use of her power of attorney” and made by her “as power of
attorney”); Hendrix v. Life Care Centers of Am., Inc., No. E2006-02288-COA-R3-CV,
2007 WL 4523876, at *5 (Tenn. Ct. App. Dec. 21, 2007) (declining to find express
authority by permission where the evidence was “inextricably intertwined with the power-
of-attorney issue” and did not establish “a separate agency relationship that can be analyzed
independently of that document”).
As further evidence of Christina’s “bad acts,” the trial court found that her actions
demonstrated “self-dealing and a complete lack of loyalty and good faith to the principal,”
violating her fiduciary duties. We agree with this assessment as well.15 Christina argues
that the transfer benefitted Jean by giving her “peace of mind” because there was a
possibility that Mike would live there. However, as the trial court found, “the notion of
Mike Sr., ever living with Chris was speculative at best.” She purchased the house “to
benefit herself.”
The final factor that is relevant to our analysis is whether there was independent
advice. Throughout this case, Christina has argued that the advice given by Chambliss
Bahner bars any claim for undue influence. Before the trial court, her attorney argued
during opening statements that “10 minutes of testimony” from Ryan Barry “could end this
case.” He argued,
[E]ven if Ms. Duggan unduly influenced Ms. Ellis as they allege – even if it
shows that she did all these horrible things that they’re going to say she did,
15
Christina does note one factual finding by the trial court that, in our view, was not supported by
the evidence. The order states, “Mr. Barry noted that Chris, in her capacity as attorney-in-fact over Jean as
a co-trustee of the Trust, could only transfer assets from the Trust for the health, maintenance, and support
of Jean and her descendants.” (emphasis added). Christina correctly notes that she did not serve as a co-
trustee of the trust. She says this is an “example” of the trial court “misstating the record.” However, this
minor misstatement within the 28-page order was harmless error.
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the fact that Ms. Ellis met with Ryan Barry and Sally Brewer alone and
received competent, independent advice breaks that chain, shows that she
understood the nature of her transaction, understood the consequences.
Game over. This case is won by the defense.
Likewise, he suggested during closing arguments that independent advice “can cover up
any tarnish.” On appeal, Christina maintains that “this case can be decided on one issue
alone – did the decedent receive competent independent advice from the Chambliss firm –
and if the answer is yes, then all other analyses do not matter[.]” However, Christina’s
position is not an accurate characterization of the law regarding independent advice.
We begin with our supreme court’s discussion of independent advice in Richmond
v. Christian, 555 S.W.2d 105 (Tenn. 1977). In that case, an 83-year-old decedent executed
a deed to her son twenty days before her death, conveying to him the only land she owned.
Id. at 106. The decedent’s two daughters filed suit to set aside the deed on the basis of
undue influence, arguing that the decedent “acted without the benefit of independent
advice.” Id. The decedent had instructed her son to contact an attorney to have the deed
drafted, so the son employed an attorney to prepare the deed and assist the decedent in its
execution. Id. at 107. The attorney delivered the deed to the decedent and “had a brief
conversation with [her] and read the deed to her, reminded her that the deed transferred all
of her real estate to her son and asked her if that was what she desired to do.” Id. She
responded affirmatively. Id. The son and two of his friends were present during this
conversation. Id. The two friends testified that they also witnessed the decedent’s will,
which the attorney read and explained that it bequeathed her personal property to her son.
Id. The decedent reportedly replied “that’s all that’s left.” Id. However, the attorney
testified that “he was not requested to and did not attempt to privately counsel with [the
decedent] respecting the advisability of the disposition of all her property to her son to the
exclusion of her two daughters.” Id.The Tennessee Supreme Court was tasked with deciding “whether or not proof of
independent advice is shown in this case.” Id. at 109. The Court explained that “adequate
proof of independent advice” had been defined as follows:
‘Proper independent advice in this connection means that the donor had the
preliminary benefit of conferring fully and privately upon the subject of his
intended gift with a person who was not only competent to inform him
correctly as to its legal effect but who was furthermore so disassociated from
the interests of the donee as to be in a position to advise with the donor
impartially and confidently as to the consequences to himself of his proposed
benefactions.’
Id. at 109 (quoting Turner v. Leathers, 232 S.W.2d 269, 271 (Tenn. 1950)). “Measured by
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this test,” the court concluded that the conversation between the decedent and the attorney
“did not amount to proof of independent advice.” Id. First, the court noted that the
conversation was not private, as the donee was seated across the room along with two
friends. Id. In addition, the attorney was employed by the donee, not the decedent. Id.Finally, “the decedent apparently did not seek and, certainly, did not receive advice from
an independent source concerning the advisability of the transfer to her son.” Id. The court
found that the attorney’s discussion of the transaction with the decedent “was cursory at
best,” as he “merely determined that she knew that the deed transferred the entire tract to
her son and that such a transfer was what she intended.” Id. This “falls short” of the
requirement that independent advice be “complete as well as private.” Id. The court noted
that in Turner v. Leathers the donor had similarly “met with an alleged independent advisor
and told him that he knew what he was doing and intended to do it.” Id. Still, the court in
Turner had explained, “‘It is not a question of whether he knew what he intended to do,
but how this intention was produced, whether it was by abuse of a confidential and
fiduciary relation.’” Id. (quoting Turner, 232 S.W.2d at 271). Considering all the facts in
the Richmond case, the court held that independent advice was not shown by the proof in
the record. Id. at 110.
Tennessee courts have repeatedly applied the principles set forth in Richmond and
Turner to determine whether there was adequate proof of independent advice. See, e.g.,
Simpson, 2019 WL 2157937, at *7 (finding no independent advice where “the deed itself
was explained to Decedent” but it did not appear that she “received any independent advice
in reaching the decision to transfer the property”); Malek v. Gunter, No. M2009-00059-
COA-R3-CV, 2009 WL 4878613, at *8 (Tenn. Ct. App. Dec. 16, 2009) (finding that the
family attorney’s involvement did not meet the definition of independent advice where the
defendant was present when the deed was prepared and delivered, the decision to transfer
the property was the result of conversations that included the defendant, and the decedent
did not confer privately with the attorney at any time concerning the transfer); In re Est. of
Schisler, 316 S.W.3d 599, 611 (Tenn. Ct. App. 2009) (“[T]he advice [the decedent]
received from the Lawrenceburg attorney was not independent given the active roles
Carroll and Linda played.”).
Even where independent advice is shown, “‘the existence of independent advice
may not be sufficient to rebut a presumption of undue influence especially in a case, such
as this, where the particular circumstances strengthen the presumption of undue
influence.’” In re Est. of Farmer, No. M2016-01300-COA-R3-CV, 2017 WL 1830096, at
*17 (Tenn. Ct. App. May 5, 2017) (quoting In re Est. of Murdaugh, 2011 WL 6141067, at
*5). For instance, in Francis v. Barnes, No. W2012-02316-COA-R3-CV, 2013 WL
5372851, at *9 (Tenn. Ct. App. Sept. 23, 2013), an attorney testified that “he fully advised
[the decedent] regarding the legal consequences of [the] deed” at issue. Still, the trial court
“was unpersuaded,” finding that the attorney “was unable to recognize the severity of [the
decedent’s] mental condition and that any advice she received under the circumstances was
inappropriate.” Id. This Court agreed that the proof fell short of establishing clear and
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convincing evidence that the transaction was fair. Id. See also In re Est. of Murdaugh,
2011 WL 6141067, at *5 (considering the totality of the circumstances and concluding that
“independent advice, without more, [was] insufficient to clearly and convincingly rebut the
presumption of undue influence”); Gabriel v. Hubbs, No. E2001-03102-COA-R3-CV,
2002 WL 31863301, at *7 (Tenn. Ct. App. Dec. 23, 2002) (concluding that independent
advice the decedent received was insufficient to overcome the presumption of undue
influence); In re Est. of Neely, No. M2000-01144-COA-R3-CV, 2001 WL 1262598, at *5
(Tenn. Ct. App. Oct. 22, 2001) (acknowledging that the defendant was not in the room
during the decedent’s two conversations with a lawyer and was not directly involved with
the lawyer but concluding that her “hands-off attitude” regarding execution of the will did
not eliminate the questions raised by her conduct or fully dispel the presumption of undue
influence).
We find the facts of this case quite similar to those present in In re Estate of Park,
No. M2003-00604-COA-R3-CV, 2005 WL 3059443 (Tenn. Ct. App. Nov. 14, 2005). In
that case, the defendant argued that even if the record contained proof of suspicious
circumstances surrounding the execution of the decedent’s will, she rebutted the
presumption by showing that an attorney assisted the decedent with the preparation of her
will, evidencing independent advice. Id. at *10. This Court found “little merit in this
argument for two reasons.” Id. First, we noted that the defendant was “directly and
actively involved in the preparation” of the will. Id. She was the one who selected and
initially contacted the attorney and “facilitated his meetings” with the decedent. Id. The
attorney had visited the decedent’s home three times over the course of a few days, and
even though the defendant was not physically present in the room when the attorney talked
with the decedent, she was at the home and may have been eavesdropping through a baby
monitor. Id. at *3, 10. Secondly, we explained that “the independence and efficacy of [the
attorney’s] advice [was] undermined by his lack of familiarity with [the decedent’s]
holdings and her physical condition.” Id. at *11. The attorney admitted he was “unaware
of the extent of [the decedent’s] wealth.” Id. He was also unaware of her recent
hospitalizations and psychological consults, her medications, and the role the defendant
played in the her life. Id. We explained that once the burden of persuasion shifted to the
defendant, she was required to present “clear and convincing evidence to dispel the taint
of undue influence,” but her evidence was “far from convincing.” Id.
Ultimately, “the question of whether a donor has had the benefit of the requisite
independent advice necessarily turns on the facts of each case, and, obviously, the
testimony of the witnesses.” Gabriel, 2002 WL 31863301, at *6. The trial court’s
determination of witness credibility is given great deference. Id. Here, the trial court noted
it was Christina who reached out to Chambliss Bahner for some kind of legal document to
memorialize the gift because she wanted “protection.” It discussed Mr. Barry’s testimony
that “he confirmed by phone that Jean wanted to give Chris the money,” informed her of
the tax consequences, and warned her that the transaction could not be undone. It also
noted, however, that Mr. Barry did not know if anyone was with Jean during the phone
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conversation. The court noted Mr. Barry did not know that the check for $175,000 had
already been written or that the annuity had been cashed out before the meeting with Ms.
Brewer. Although the court found that Mr. Barry testified credibly, it gave his testimony
“less weight in light of the troubling fact that Mr. Barry’s most direct interaction with Jean
concerning the transfer of $175,000 was over the phone.”
Regarding Sally Brewer, the trial court pointed out that Christina had reached out
to her and that the two women had a “business-social relationship” and had “referred
business back and forth” for a couple of years. It noted Ms. Brewer’s testimony that she
did not have a general understanding of Jean’s estate. Although Ms. Brewer had opined
that Jean had the “capacity and intent” to execute the documents, the trial court found that
Ms. Brewer failed to address “Jean’s practice of pleasing whomever she was with,
frequently retracting purchases, and other similar decisions.” The trial court commended
Chambliss Bahner and Ms. Brewer for attempting to establish donative capacity but
concluded that Christina’s actions “in acting first by writing the Check prior to the Meeting
and then later attempting to utilize [Chambless Bahner] and its staff to ‘bless’ the transfer
after-the-fact significantly reduces the persuasiveness of the [Chambliss Bahner] witness’s
testimony.”
The trial court explained that Christina was attempting to overcome the presumption
of undue influence by showing that “they obtained the advice of [Chambliss Bahner] before
the $175,000 Check was deposited into Chris’s account, even though the Check was written
out 5 days before [Chambliss Bahner] had a chance to discuss Jean’s wishes with respect
to the transfer.” The court said that Christina had offered “proof that post-transaction
capacity existed based on [Chambliss Bahner’s] involvement” when there was little proof
of capacity at the time of liquidation of the annuity or when the gift check was written.16
“Put another way,” the trial court added, “Chris is relying on the underlying fairness of the
transfer as approved by [Chambliss Bahner] as a shield against undue influence.” The trial
court quoted the definition of independent advice from Turner v. Leathers, 232 S.W.2d at
271, which bears repeating:
The rule of independent advice means that the adviser must not only
16
Because the trial court used the term “capacity” in this section of its order, Christina argues on appeal
that the trial court impermissibly considered Jean’s “competency” when her competency was not at issue.
We disagree. As Christina’s attorney noted during closing arguments at trial, “This case is not about
competency. Plaintiffs have already said that clearly at the beginning of this case, “We’re not challenging
her competence. We’re challenging undue influence.” Counsel for the plaintiffs likewise stated, “We’re
not saying she was incompetent. We’re saying that this is evidence of her physical and mental
deterioration.” Mental deterioration is specifically listed among the suspicious circumstances in the undue
influence analysis. Therefore, Jean’s mental state was relevant to the undue influence claim. In addition,
the trial court accurately observed that Christina had essentially attempted to provide proof of “capacity”
through the involvement of Chambliss Bahner. Sally Brewer admitted that “job number one” for her was
to see if Jean was competent and “had the capacity to sign.” Thus, the trial court’s characterization of the
testimony was not inaccurate.
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be competent but independent.
Proper independent advice in this connection means that the donor
had the [preliminary] benefit of conferring fully and privately upon the
subject of his intended gift with a person who was not only competent to
inform him correctly as to its legal effect, but who was furthermore so
disassociated from the interests of the donee as to be in a position to advise
with the donor impartially and confidently as to the consequences to himself
of his proposed benefactions.
The court found it “disturbing that Chris’s first impulse was to speak with a non-lawyer
with whom she had a prior, friendly relationship, rather than present all of the facts directly
to Jean’s attorneys.” It noted Christina “anticipated Plaintiffs would take issue with the
transfers” and wanted protection. The trial court found the timing of the events
“suspicious” because Christina contacted Ms. Brewer after drafting the $175,000 check to
herself. More importantly, however, the trial court found that “[Chambliss Bahner’s]
advice was not fully informed.” It found that Chambliss Bahner “was acting with
inadequate information in approving the transfer.” The trial court found that Ms. Brewer
was not in a position to make legal determinations and that she was not fully informed in
any event. It pointed out that Mr. Barry admittedly did not know Jean extremely well, that
he did not meet with Jean in person regarding the transfer, that he did not know about the
liquidation of Jean’s assets, and that most of his communication was with Christina rather
than Jean herself. In summary, the trial court rejected Christina’s position that “the
transfers made to purchase the House were ratified by [Chambliss Bahner].” The trial court
found that Christina’s proof failed to overcome the presumption of undue influence by
clear and convincing evidence.
We share the trial court’s concerns with the suspicious timing of the events and the
manner in which Christina contacted her business acquaintance at Chambliss Bahner
seeking a legal document to ratify the gift after-the-fact. We also agree that Mr. Barry and
Ms. Brewer were not fully informed about the gift. It appears that the main facts Mr. Barry
knew about the gift were that Jean was giving Christina $175,000 for a house, that Jean
had a general amount of wealth, and that the gift would not impoverish her. We cannot
say that Jean’s telephone conversation with Mr. Barry and subsequent meeting with Ms.
Brewer met the definition of independent and complete advice regarding the advisability
of the transfer. Adequate independent advice means “conferring fully and privately upon
the subject of [the] intended gift with a person who was not only competent to inform him
correctly as to its legal effect, but who was furthermore so disassociated from the interests
of the donee as to be in a position to advise with the donor impartially and confidently as
to the consequences.” Turner, 232 S.W.2d at 271. Christina insists that “[t]his is exactly
the advice received from Ryan Barry.” However, according to Mr. Barry, his conversation
with Jean “involved, first and foremost, what do you want to do; and Ms. Ellis explained
that she wanted to make this particular amount to Ms. Duggan as a lifetime gift.” Mr.
Barry said he “briefly mentioned to her that she would not owe any gift or estate tax” and
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“the general fact that there are no take backs when you do lifetime gifts.” He did not recall
“specifically going through the dollar-for-dollar consequence of what’s going where,” but
did recall saying, “What do you want to do? Here are the tax implications, and you do not
get to undo this once it’s done.” He did not know Jean extremely well and could not recall
whether he had ever met her in person. As for his knowledge of Jean’s estate, he only
generally knew that “there’s several million in play out there from the husband’s estate and
from her estate and real estate and different assets.” He “didn’t discuss specifically how
the gift fit into the estate plan from the standpoint of the documents and whatnot.” He
again summarized the content of their conversation as follows:
[W]ith respect to the gifting, again, when I say I made sure that she was
knowing what she wanted to do, that included not only what do you want
with respect to amount and who, but, also, here is the tax implication and you
know that there’s no take backs when we’re done with this.
So, that’s the long and short of any conversation I’m going to have
with someone making a lifetime gift, including Ms. Ellis.
As the Supreme Court explained in Turner, however, “It is not a question of whether [the
decedent] knew what he intended to do, but how this intention was produced, whether it
was by abuse of a confidential and fiduciary relation.” 232 S.W.2d at 271. In undue
influence cases, the issue is not whether the person “knew what he was doing at the time.”
Est. of Brimer v. Hennessee, No. E2016-02136-COA-R3-CV, 2017 WL 5565627, at *3
(Tenn. Ct. App. Nov. 20, 2017). Rather, the issue is whether the weaker party’s decision
was a free and independent one or one induced by the dominant party. Id.“[I]t is proof that the donor received independent and complete advice ‘respecting
the consequences and advisability of the gift’ that constitutes an example of fairness.” In
re Est. of Brindley, 2002 WL 1827578, at *21 (quoting Richmond, 555 S.W.2d at 107-108)
(emphasis added). In In re Estate of Brindley, we held that an attorney’s testimony that he
followed his normal procedures and that “the testator understood what the codicil did”
would be relevant to establishing proper execution and testamentary capacity, but it was
not sufficient to establish independent advice to overcome a presumption of undue
influence. Id. There was no evidence that the testator “sought or received independent or
complete advice regarding the advisability of the change in his codicil and no evidence that
any independent advisor sought to determine how his intention was produced.” Id. The
same is true here. Briefly mentioning that Jean would not owe estate or gift tax and that
the transaction cannot be undone does not rise to the level of full and complete advice
regarding the advisability of the gift.
Likewise, Sally Brewer’s meeting with Jean mainly focused on Jean’s mental
capacity and whether she knew what she wanted to do. Christina argues on appeal that Ms.
Brewer “made the [] conclusion” during the meeting that Jean was not unduly influenced.
However, as the basis for her conclusion, Ms. Brewer said she made “observations” of Jean
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to determine whether she was being coerced, watching for signs of fear, isolation,
overdependence, being overwhelmed, or having someone nearby winking at them or
twisting their arm. Her “observations” did not constitute independent advice. See Turner,
232 S.W.2d at 271 (defining independent advice). Ms. Brewer also said her general
practice is to ask someone if they are being unduly influenced, which again, would not
constitute independent advice.17
In summary, we agree with the trial court’s ultimate conclusion that numerous
suspicious circumstances existed in this case, and that Christina failed to overcome the
presumption of undue influence with clear and convincing evidence of the fairness of the
transaction. Thus, the trial court’s judgment against Christina for $176,000 is affirmed.
B. Attorney Fees
Finally, Plaintiffs seek an award of attorney fees incurred at trial and on appeal.
Plaintiffs were required to bring this suit as assignees of Jean’s estate when Chambliss
Bahner declined to pursue an undue influence claim against Christina. As assignees of the
estate, they assert that Christina should be required to pay their attorney fees. The trial
court denied Plaintiffs’ request for attorney fees on the basis that “[a]ttorney fees are not
available under the current caselaw relating to undue influence.”
“Tennessee has long followed the ‘American Rule’ with regard to attorney’s fees.”
Eberbach v. Eberbach, 535 S.W.3d 467, 474 (Tenn. 2017) (citing State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)). Pursuant to 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.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn.
2009).
An award of attorney fees was upheld under circumstances similar to those before
us in Martin v. Moore, 109 S.W.3d 305, 307 (Tenn. Ct. App. 2003). In that case, a man
17
On the issue of independent advice, Tennessee courts have considered advice from non-attorneys.
See, e.g., Miller v. Hubbs, 285 S.W.2d 527, 528 (Tenn. 1955) (“It, therefore, is obvious that the rule of
Turner v. Leathers [] and other cases requiring independent and competent advice is fully met. What better
and more competent advice could she have had than that of her husband whose wishes she followed after
his death?”); In re Est. of Norton, No. E2010-02304-COA-R3-CV, 2012 WL 587481, at *6 (Tenn. Ct. App.
Feb. 23, 2012) (considering that the decedent “availed himself of independent professional advice and
counsel” from “no less than five unrelated, objective professionals,” including attorneys and others);
Parish, 308 S.W.3d at 893-94 (concluding that the decedent received “independent advice from two
separate sources” - bank tellers and an attorney); Nicholas v. Wright, 301 S.W.2d 540, 550 (Tenn. Ct. App.
1956) (“[T]he advice which Mrs. Wright received from Mr. Allison, her banker, General Drane, her
attorney, Mr. Joe Riddle, her attorney, and Mr. Ivy, her tax accountant, was sufficient to meet any test of
competent independent advice which might be required under Turner v. Leathers, supra.”).- 44 -
who was diagnosed with dementia executed a power of attorney in favor of his wife. Id.She used the power to withdraw all of the money from her husband’s separate account and
sent most of it to her brother. Id. After the principal died, his daughter, who was the
executrix of his estate, brought suit for breach of fiduciary duty, seeking a return of the
funds. Id. The trial court ordered the return of the money and also ordered the wife to pay
some of the daughter’s attorney fees. Id. On appeal, this Court affirmed. At the outset, we
explained that the existence of a confidential relationship, combined with a benefit to the
dominant party, creates a presumption of undue influence and of the invalidity of the
transaction, which can only be rebutted by clear and convincing evidence of fairness. Id.
at 309-10. After affirming the trial court’s decision to require return of the funds, we turned
to the issue of attorney fees. Id. at 311, 313. The wife argued that there was no statutory
or contractual basis for the award. Id. at 313. However, we found “a basis in case law”
for the award. Id. We explained:
[S]everal cases of this court support the proposition that attorney fees may
be awarded against a trustee who breaches her fiduciary duty. Brandt v. Bib
Enterprises, 986 S.W.2d 586 (Tenn. Ct. App. 1998); Marshall v. First
National Bank of Lewisburg, 622 S.W.2d 558 (Tenn. Ct. App. 1981).
Although attorney fees should not be imposed where there is merely
a technical fault on the part of the fiduciary, 622 S.W.2d at 560, the
imposition of such fees on fiduciaries who deliberately use their position of
trust to enrich themselves creates a disincentive to such behavior. The trial
court’s finding that Ms. Moore intentionally withdrew her husband’s
separate funds from his checking account for her sole use and benefit is an
appropriate predicate for the trial court’s award.
Id.This Court followed the Martin case to approve another award of attorney fees in
Lewis v. Lewis, No. E2014-00105-COA-R3-CV, 2015 WL 1894267 (Tenn. Ct. App. Apr.
27, 2015). There, the decedent and his girlfriend both granted power of attorney to the
decedent’s son. Id. at *1. The decedent and his girlfriend also executed a deed conveying
an interest in their farm to the son and his wife for less than one-third of its value. Id. Two
days before the decedent died, the son withdrew $600,000 from accounts held jointly in
the names of the decedent, his girlfriend, and the son. Id. The girlfriend brought suit to
rescind the real estate and bank account transfers on the basis of undue influence. Id. The
trial court found that the son exercised undue influence and also committed fraud and
conversion. Id. It awarded attorney fees to the girlfriend. Id. On appeal, we found that
the trial court properly found undue influence. Id. at *11. Regarding attorney fees, we
explained the American Rule that “‘in the absence of some statutory, contractual, or
equitable ground, a litigant must pay for its own lawyer and, conversely, cannot be required
to pay for another litigant's lawyer.’” Id. (quoting Roberts v. Sanders, No. M1998-00957-
COA-R3-CV, 2002 WL 256740 at *10 (Tenn. Ct. App. Feb. 22, 2002)). We recognized
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that there was “no statutory or contractual ground supporting the award of attorney’s fees.”
Id. We explained that a finding of conversion does not necessarily support an award of
attorney fees. Id. We noted that awards of attorney fees have been upheld based on
findings of fraud, but we concluded that the trial court’s finding of fraud was not supported
by the record and could not support the award of attorney fees. Id. at *12-13. Still, we
continued:
There is, however, another ground that clearly supports the trial court’s
award of attorney’s fees against Sam Lewis. In Martin v. Moore, a case
where a wife wrongfully used her power of attorney executed by her disabled
husband to withdraw funds from his bank account, we observed as follows:
[S]everal cases of this court support the proposition that
attorney fees may be awarded against a trustee who breaches
[his or] her fiduciary duty. Brandt v. Bib Enterprises, 986
S.W.2d 586 (Tenn Ct.App.1998); Marshall v. First National
Bank of Lewisburg, 622 S.W.2d 558 (Tenn.Ct.App.1981).
Although attorney fees should not be imposed where
there is merely a technical fault on the part of the fiduciary, 622
S.W.2d at 560, the imposition of such fees on fiduciaries who
deliberately use their position of trust to enrich themselves
creates a disincentive to such behavior. The trial court’s
finding that Ms. Moore intentionally withdrew her husband’s
separate funds from his checking account for her sole use and
benefit is an appropriate predicate for the trial court's award.
109 S.W.3d 305, 313 (Tenn. Ct. App. 2003). Under Martin and the cases
cited therein, the trial court was supported in awarding attorney’s fees against
Sam Lewis on the ground of his abuse of his fiduciary duty by deliberately
using his position of trust to enrich himself at the expense of his ward,
Dorothy Lewis.
Id. at *13-14.
Finally, in Scalf v. Harmon, No. M2007-00350-COA-R3-CV, 2008 WL 741480(Tenn. Ct. App. Mar. 19, 2008), defendants were caring for the decedent and were given
power of attorney in case of the decedent’s incapacitation. Id. at *1. After the decedent
died, his daughter filed suit against the defendants for conversion. Id. The trial court found
that the defendants converted various items of property but found no basis for any award
of attorney fees. Id. at *2. On appeal, the plaintiff argued that the defendant should be
ordered to pay her attorney fees on the basis that he “abused the confidential fiduciary
relationship established by the power of attorney.” Id. at *3. We considered Martin but
concluded that attorney fees could not be awarded under the facts presented:
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Plaintiff first claims that she should be awarded attorney fees because Johnny
Harmon abused the confidential fiduciary relationship established by the
power of attorney. See Martin v. Moore, 109 S.W.3d 305, 313 (Tenn. Ct.
App. 2003) (“Although attorney fees should not be imposed where there is
merely a technical fault on the part of the fiduciary, … the imposition of such
fees on fiduciaries who deliberately use their position of trust to enrich
themselves creates a disincentive to such behavior.”). One clear but narrow
exception to this rule under Tennessee law is when the power of attorney is
executed, but never exercised. As explained in Martin:
Our Supreme Court has recently announced a narrow
exception to this rule. In Childress v. Currie, 74 S.W.3d 324(Tenn. 2002), the Court ruled that if the power of attorney is
executed, but not exercised, a confidential relationship does
not arise as a matter of law.
Martin, 109 S.W.3d at 309.
In the present case, Plaintiff acknowledges that the power of attorney
was never exercised by Johnny Harmon. . . .
. . . Therefore, the fact that Johnny Harmon held a power of attorney
which was not used cannot form the basis for an award of attorney fees.
Id. at *3-4.
Keeping these principles in mind, we conclude that there is a basis in caselaw for
awarding attorney fees to the Plaintiffs in this case. Christina had exercised the power of
attorney many times, giving rise to a confidential relationship. She breached her fiduciary
duties to Jean and obtained a gift by undue influence. The trial court specifically found
that Christina “knowingly violated the POA to benefit herself.” Compare Martin, 109
S.W.3d at 313 (“The trial court’s finding that Ms. Moore intentionally withdrew her
husband’s separate funds from his checking account for her sole use and benefit is an
appropriate predicate for the trial court’s award [of attorney fees].”). Christina’s actions
did not consist of a mere technical fault but a deliberate abuse of her position. “[T]he
imposition of [attorney] fees on fiduciaries who deliberately use their position of trust to
enrich themselves creates a disincentive to such behavior.” See id. As such, we conclude
that Plaintiffs should be awarded their attorney fees at the trial level and on appeal. We
remand for the trial court to determine a reasonable award.
IV. CONCLUSION
For the aforementioned reasons, the decision of the chancery court is affirmed in
part and reversed in part, and this case is remanded for further proceedings consistent with
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this opinion. Costs of this appeal are taxed to the appellee, Christina Duggan, for which
execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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