                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                     February 18, 2011 Session

                   EASTER BAUGH v. BARBARA THOMAS, ET AL.

                     Appeal from the Chancery Court for Coffee County
                        No. 04-61    Walter C. Kurtz, Senior Judge


                    No. M2010-01054-COA-R3-CV - Filed April 12, 2011


Nephew of grantor of quitclaim deed conveying property to grantor’s sister appeals the
declaration that the deed was null and void based on a finding that the nephew exercised
undue influence on grantor. Finding that the evidence does not preponderate against the trial
court’s finding of a confidential relationship between grantor and nephew and in light of
nephew’s failure to rebut the presumption of undue influence raised thereby, we affirm the
judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Larry Moore, Nashville, Tennessee, Pro Se.

Gerald Leighton Ewell, Jr., Tullahoma, Tennessee, for the appellee, Easter Baugh.

                                 MEMORANDUM OPINION 1

I. Background and Procedural History




       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
        Plaintiff, Easter Baugh, daughter of the late James C. Biles, filed suit in February 2004
seeking to have a quitclaim deed that purported to convey property on College Street in
Manchester, Tennessee, to Mr. Biles’ sister, Sallie Nelson, declared null and void and to
quiet title to the property in her. Ms. Baugh alleged that the property had been devised to her
under Mr. Biles’ will dated January 7, 1998, and that, at the time of his death, Mr. Biles
owned the College Street property. The quitclaim deed she sought to have declared null and
void had been prepared by Mr. Biles’ nephew, Larry Moore, and was signed by Mr. Biles and
notarized on April 28, 1999; it was not recorded until August 28, 2001, more than two
months after Mr. Biles’ death.

        The complaint alleged that Sallie Nelson, grantee under the quitclaim deed, had died
intestate and without surviving issue; named as respondents were Sallie Nelson’s surviving
heirs at law Ella Moore, Barbara Thomas, Edna Thomas, Janice Thomas, Kathy Thomas,
Charles Biles, Michael Biles, Mae Norton and Carolyn Hutchins. Respondent Ella Moore
filed a cross-petition against the remaining respondents, asserting that she was the sister and
sole heir at law of Sallie Nelson and seeking a declaration to that effect. The court
subsequently entered judgment by default against all of the cross-respondents, except Ms.
Baugh, for failure to respond to the cross-petition. Following the death of Ella Moore, an
order was entered substituting her heirs at law, Brenda Tibbs, Cassandra McKissack, and
Larry Moore, as respondents and counter-petitioners.

        Trial was held before Chancellor John Rollins on February 5, 2007.2 Ms. Baugh
sought to set aside the quitclaim deed on grounds that Mr. Moore exerted undue influence
on Mr. Biles in the preparation of the deed. Mr. Moore claimed ownership of the property
based on the theory that the quitclaim deed to Ms. Nelson was valid, and that Ms. Nelson had
later deeded the property to him. At the close of proof, Chancellor Rollins ruled that “Mr.
Moore by his actions has clearly, unequivocally, influenced [Mr. Biles] to change that deed,
and I think the deed is void.” That ruling was never reflected in a final order, however,
because Chancellor Rollins became ill and passed. Thereafter, Senior Judge Walter Kurtz
assumed responsibility for the case.

       On March 18, 2010, Judge Kurtz issued a memorandum opinion stating that he had
read and certified his familiarity with the record and that he could find no reason that he
could not effectuate Chancellor Rollins’ ruling; he directed Ms. Baugh’s attorney to prepare
an order consistent with the ruling. Judge Kurtz subsequently entered a decree declaring the
quitclaim deed null and void and vesting ownership in the property in Ms. Baugh.


        2
          Trial had initially commenced before Circuit Court Judge Craig Johnson in October 2006. During
the early part of the trial, Judge Johnson recused himself and referred the case to Chancellor Rollins. Trial
was recommenced before Chancellor Rollins.

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       Mr. Moore appeals, articulating the following issues.

       1. Was the deed by Mr. Biles to his sister, Ms. Nelson, a valid deed?

       2. Was the deed procured by “undue influence” from Mr. Moore?

       3. Was the evidence adduced at the trial sufficient to support a finding that the
       deed was procured from Mr. Biles through “undue influence” by Mr. Moore?

       Ms. Baugh raises the following issues:

       1. Whether the purported conveyance from Mr. Biles to Mr. Moore is void
       due to undue influence.

       2. Whether the conveyance was supported by consideration and thus is void.

       3. Whether this appeal was frivolous pursuant to Tenn. Code Ann. § 27-1-122.

II. Standard of Review

        The trial court found that Mr. Moore exerted undue influence on Mr. Biles with
reference to the quitclaim deed and declared the deed null and void on that ground. Because
this case was tried without a jury, our review of the trial court’s findings of fact is de novo,
accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d). Our review of the trial court’s determinations
regarding questions of law is de novo with no presumption of correctness. See Staples v.
CBL Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997).

III. Discussion

       In Tennessee a presumption of undue influence arises where a confidential
relationship is found to exist, followed by a transaction wherein the dominant party receives
a benefit from the other party. Matlock v. Simpson, 902 S.W.2d 384, 385 (Tenn. 1995) (citing
Halle v. Summerfield, 287 S.W.2d 57 (Tenn. 1956); Turner v. Leathers, 232 S.W.2d 269
(Tenn. Ct. App. 1950); Roberts v. Chase, 166 S.W.2d 641 (Tenn. Ct. App. 1942)). This
presumption can only be rebutted by clear and convincing evidence of the fairness of the
transaction. Id.; see also Richmond v. Christian, 555 S.W.2d 105, 107 (Tenn. 1977).




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        Evidence at trial included testimony of Mr. Moore that for a period of about four
years, including the year in which the quitclaim deed was prepared, Mr. Biles was dependent
on Mr. Moore for transportation and for certain aspects of his daily well-being. Mr. Moore
acknowledged that he acted as advisor to Mr. Biles with reference to a suit brought by a bank
to recover funds stolen from Mr. Biles’ account by Mr. Moore’s sister; Mr. Moore signed the
settlement document as witness to Mr. Biles’ signature and attesting to Mr. Biles’
understanding of and agreement to the terms of settlement. There was also testimony
regarding other relatives of Mr. Biles who, at various times, lived in the house with him,
including his sister Sally Nelson, who was the grantee under the quitclaim deed and the aunt
of Mr. Moore, and Cassandra McKissack, the sister of Mr. Moore’s and who was convicted
of theft of Mr. Biles’ funds. Giving due weight and deference to the trial court’s findings,3
the evidence does not preponderate against the finding that a confidential relationship existed
between Mr. Biles and Mr. Moore, thereby raising a presumption of undue influence with
respect to the deed.

        The proof necessary to overcome the presumption of undue influence must be clear
and convincing. Matlock, 902 S.W.2d at 386; Richmond, 555 S.W.2d at 107. In the present
case, defendants failed to put forward any proof showing the fairness of Mr Biles’ execution
of the quitclaim deed, that he received independent advice respecting the advisability or
consequences of executing the deed, or to provide a factual context for its execution.
Independent advice is ordinarily required where it is a reasonable requirement and where the
circumstances are such that it would be difficult to show the fairness of the transaction
without proof of independent advice. Miller v. Proctor, 145 S.W.2d 807, 811-12 (Tenn. Ct.
App. 1940). Proof of independent advice or other facts showing fairness would be
reasonable in this case, where the quitclaim deed was prepared by a family member the year
after Mr. Biles had executed a will specifically devising the property to someone other than
the grantee under the deed and where the consideration listed in the deed for the property was
one dollar. Given Mr. Biles’ age and dependency on various of his family members for
assistance, as well as the proof that some family members took advantage of him in various
ways, the absence of any proof to rebut the presumption created by the confidential
relationship or to in any way show the fairness of the transfer or any benefit to Mr. Biles as
a result of the transfer is fatal.

       The court’s finding that Mr. Moore exercised undue influence on Mr. Biles is
supported by the evidence and its resulting declaration that the quitclaim deed was null and
void is not erroneous.


        3
           The trial judge saw and heard the witnesses, observed their manner and demeanor, and was
therefore in a much better position to judge the weight and value of their testimony than is the appellate
court. See Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn. Ct. App. 1984).

                                                   -4-
IV. Attorneys Fees

        Ms. Baugh requests that she be awarded attorney’s fees and costs incurred in the
defense of this appeal. Tenn. Code Ann. § 27-1-122 allows this Court to make an award of
fees upon a determination that the appeal was “frivolous or taken solely for delay.” In light
of the issues presented and the record, this appeal is not frivolous within the contemplation
of Tenn. Code Ann. § 27-1-122. See Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct.
App. 2001) (citing Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App. 1998); Industrial
Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)).

V. Conclusion

       For the foregoing reasons, the judgment of the Chancery Court is AFFIRMED.

       Costs of this appeal are assessed against Larry Moore.


                                                   _________________________________
                                                   RICHARD H. DINKINS, JUDGE




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