                  IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT JACKSON


EMMA B. CLARK,                    )
                                  )
           Plaintiff/Appellee,    ) Crockett Chancery No. 6878
                                  )                                FILED
VS.                               ) Appeal No. 02A01-9704-CH-00080
                                  )                              March 19, 1998
RANDY J. PERRY,                   )
                                  )                             Cecil Crowson, Jr.
           Defendant/Appellant.   )                             Appellate C ourt Clerk



       APPEAL FROM THE CHANCERY COURT OF CROCKETT COUNTY
                       AT ALAMO, TENNESSEE
            THE HONORABLE GEORGE R. ELLIS, CHANCELLOR




S. JASPER TAYLOR, IV
Bells, Tennessee
Attorney for Appellant



L. L. HARRELL, JR.
HARRELL & HARRELL
Trenton, Tennessee
Attorney for Appellee




REVERSED IN PART, AFFIRMED IN PART




                                                     ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
       Defendant Randy J. Perry appeals the trial court’s final judgment rescinding a deed

executed by Plaintiff/Appellee Emma B. Clark, awarding Clark rents received by Perry

during his possession of the subject property, enjoining Perry’s lessee from entering the

property, and ordering Perry to pay Clark’s attorney’s fees. With the exception of the

award of attorney’s fees to Clark, we affirm the trial court’s judgment.



                             I. Factual and Procedural History



       Clark brought this action to rescind a deed which she claimed Perry procured by

misrepresentation and undue influence. At trial, the undisputed evidence established that

in February 1993 Clark signed a warranty deed conveying to Perry a 123-acre farm in

Crockett County. Although the farm was worth over $157,000, Perry paid Clark only

$20,000 for the property. Within days of procuring the deed, Perry mortgaged the farm for

over $100,000. Perry later took out a second mortgage on the farm for $20,000. At the

time of trial, Perry still owed over $120,000 on these mortgages. After receiving the deed

to the farm, Perry also began leasing the farm to another farmer, Stoney Hargett, who paid

one-fourth of the annual farm income to Perry as rent. In May 1993, Perry conveyed back

to Clark a life estate in a portion of the farm property which included the house in which

Clark lived.



       At trial, Perry testified that Clark conceived the idea of conveying the farm to Perry

for a price of $20,000 and, further, that Clark knew what she was doing when she executed

the warranty deed in Perry’s favor. Since 1987, Perry had conducted farming operations

on the subject property as Clark’s lessee. At one point in their relationship, Clark allegedly

promised to leave a portion of the farm to Perry and to sell him the rest. According to

Perry, the conveyance in February 1993 was Clark’s way of fulfilling this promise. In his

testimony, however, Perry acknowledged that he arranged for the deed to be prepared and

that the $20,000 purchase price was far below the property’s fair market value, which

exceeded $157,000. Perry also acknowledged that Clark was extremely dependent upon




                                              2
him and that she trusted and relied upon him to do “whatever was right and proper

concerning her.”



        Clark’s version of events surrounding the transaction directly contradicted Perry’s

testimony.      Clark, who was approximately eighty-one years old at the time of the

conveyance, testified that she suffered from poor health in the months prior to and after

execution of the deed. In 1992, Clark was hospitalized for nine weeks because she

underwent gallstone surgery and, later, developed blood poisoning. When Clark was

released from the hospital, she was confined to her home in poor health. Clark was visited

by home health nurses, who provided Clark with medication and therapy. During this time,

Clark was unable to leave her house without assistance. Clark was not well enough to

care for herself again until sometime in the spring of 1994.



        Clark had leased the farm to Perry since 1986 or 1987. She trusted Perry and

considered him to be a friend. After Clark became ill in 1992, she relied on Perry to run

errands for her, to provide transportation for her, and to take care of her home when she

was not there. Clark also relied on Perry to handle any business matters relating to the

farm. Clark had executed a limited power of attorney authorizing Perry to sign any

paperwork required by the ASCS1 office. While she was still in the hospital, Clark

reimbursed Perry for some of his expenses incurred in handling her affairs, as well as for

farm expenses. Clark trusted Perry sufficiently to ask him to fill out a couple of her

personal checks for her signature.



        On the day in question, Perry picked up Clark and transported her into Alamo,

where she executed the deed in front of a notary public. Perry brought the papers outside,

and Clark remained seated in Perry’s truck while she signed the deed. In contrast to

Perry’s testimony, Clark testified that she did not realize that she was signing a deed to the

farm. According to Clark, Perry led her to believe that she was signing some forms from



        1
         Although the record is unclear, th e parties m ay have be en refer ring to the Agricultural Stabilization
and Conservation Service of the United States Departmen t of Agricu lture. See Dill v. Brinkley, 1988 WL
28561, at *2 n.1 (Tenn. App. M ar. 28, 1988).

                                                        3
the ASCS office. Clark previously had signed such forms for Perry and, thus, was not

suspicious of Perry’s request that day. When Perry tendered the $20,000 purchase price

to Clark a number of days later, Clark thought that Perry was repaying a $5000 loan plus

other amounts he owed her. Clark further maintained that she never intended to convey

the farm to Perry. Except for the farm, Clark’s only source of income was a monthly social

security check in the amount of $351. For the years 1987 through 1991, Clark received

income from the farm totaling $47,700.



       Clark realized that something was wrong in the fall of 1993, when Perry failed to pay

Clark her portion of the farm’s annual crop income. Perry prevaricated when Clark first

inquired about the income. Clark later discovered that Perry did not pay her any farm

income because she had conveyed the farm to Perry. Clark pleaded with Perry to

reconvey the property to her. According to Clark, Perry admitted that he had “done wrong.”

Instead of reconveying the property to Clark, however, Perry responded by telling Clark

that she did not need the property and that she did not have long to live anyway. Clark

offered to refund the $20,000 purchase price if Perry would reconvey the property, but

Perry refused to accept Clark’s check.



       At the trial’s conclusion, the trial court entered an order rescinding the deed to the

farm based on the court’s finding of overreaching, fraud, and deceit. The trial court’s order

also awarded Clark $5,000 plus interest for a loan she previously made to Perry, directed

Perry to pay all mortgages and encumbrances that he had placed upon the property, and

ordered Perry to pay Clark’s attorney’s fees.



       After entry of the trial court’s order rescinding the deed, Clark filed a motion to alter

or amend the order in which she sought an additional judgment for rents and income

received by Perry during the time he held title to the property. Clark also filed a petition for

a restraining order seeking to enjoin Perry and his lessee, Stoney Hargett, from going upon

the property. The petition alleged that Perry and Hargett recently had entered the property

and had begun making preparations to cultivate and farm the property. Perry filed a written



                                               4
response to Clark’s motion in which he sought credit for the $20,000 purchase price that

he had paid for the property, as well as reimbursement for funds that he had expended in

improving the property.



       After conducting evidentiary hearings on Clark’s post-trial motion and petition, the

trial court entered a restraining order which enjoined Perry and Hargett from going upon

Clark’s property. The trial court also entered a final judgment which, in addition to the

court’s previous rulings, awarded Clark $25,516.13 for rents received by Perry during the

years 1993, 1994, and 1995. The trial court gave Perry a credit of $20,000 against this

amount, for a net judgment of $5,516.13. The court ruled that Perry was not entitled to

reimbursement for any expenses he incurred either while he was leasing the property from

Clark or after he received a deed to the property. Finally, the trial court ordered Perry to

pay Clark’s attorney’s fees in the amount of $10,000.



       On appeal, Perry contends that the trial court erred in rescinding the deed to the

farm based on the court’s finding of overreaching and fraud; in failing to award Perry the

expenses he incurred in farming and making improvements to the property; in issuing a

restraining order against Perry’s lessee, Stoney Hargett; and in ordering Perry to pay

Clark’s attorney’s fees.



                               II. Rescission of Farm Deed



       The doctrine of undue influence applies “when one party, such as a grantee, is in

a position to exercise undue influence over the mind and the will of another, such as a

grantor, due to the existence of a confidential relationship.” Brown v. Weik, 725 S.W.2d

938, 945 (Tenn. App. 1983). A grantor seeking to rescind a deed based on this doctrine

has the burden of proving (1) that a confidential relationship existed between the parties

wherein the grantee was the dominant party, and (2) that the transaction conferred a

benefit on the grantee. Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995); Fritts v.

Abbott, 938 S.W.2d 420, 421 (Tenn. App. 1996); Williamson v. Upchurch, 768 S.W.2d



                                             5
265, 269 (Tenn. App. 1988); Parham v. Walker, 568 S.W.2d 622, 624 (Tenn. App. 1978).

Once the grantor proves these elements, a presumption arises that the deed was procured

by undue influence. Brown v. Weik, 725 S.W.2d at 945; Parham v. Walker, 568 S.W.2d

at 624. The burden then shifts to the grantee to prove, by clear and convincing evidence,

that the transaction was fair and was not the result of undue influence. Matlock v.

Simpson, 902 S.W.2d at 386; Brown v. Weik, 725 S.W.2d at 945; Parham v. Walker, 568

S.W.2d at 624. If the grantee fails to carry this burden, the transaction is presumed void.

Parham v. Walker, 568 S.W.2d at 624.



       Confidential relationships can assume a variety of forms. Mitchell v. Smith, 779

S.W.2d 384, 389 (Tenn. App. 1989). Accordingly, courts have been hesitant to provide a

precise definition for the term “confidential relationship.”   Id.; accord Williamson v.

Upchurch, 768 S.W.2d at 269; Brown v. Weik, 725 S.W.2d at 945.                 Generally, a

confidential relationship includes any relationship of trust and confidence which gives one

party dominion or influence over the other. Mitchell v. Smith, 779 S.W.2d at 389;

Williamson v. Upchurch, 768 S.W.2d at 269. More specifically, a confidential relationship

is one “where confidence is placed by one in the other and the recipient of that confidence

is the dominant personality, with the ability, because of that confidence, to influence and

exercise dominion over the weaker or dominated party.” Iacometti v. Frassinelli, 494

S.W.2d 496, 499 (Tenn. App. 1973); accord Mitchell v. Smith, 779 S.W.2d at 389;

Williamson v. Upchurch, 768 S.W.2d at 269; Gustafson v. Baldridge, No.

02A01-9102-CV-00009, 1991 W L 248410, at *3 (Tenn. App. Nov. 27, 1991).



       Although courts have avoided a precise legal definition for the term “confidential

relationship,” they have discussed the type of evidence which will support the existence of

a confidential relationship:



                     Evidence of one party’s deteriorated mental or physical
              condition will substantiate the existence of a confidential
              relationship as well as the ability of the dominant party to
              influence the weaker party. . . . The weaker party need not be
              legally insane. . . . Any condition rendering the weaker party



                                            6
              unable to guard against the dominant party’s imposition or
              undue influence is sufficient. . . .

                     Thus, the question to be answered is not whether the
              weaker party’s decision was a good one, or even whether he
              knew what he was doing at the time. In these cases, the
              courts must determine whether the weaker party’s decision
              was a free and independent one or whether it was induced by
              the dominant party.

Williamson v. Upchurch, 768 S.W.2d at 270 (citations omitted); accord Fritts v. Abbott, 938

S.W.2d at 421; Barham v. Cooper, No. 02A01-9608-CH-00200, 1997 WL 542922, at *6

(Tenn. App. Sept. 5, 1997). Stated another way,

              there must be a showing that there were present the elements
              of dominion and control by the stronger over the weaker, or
              there must be a showing of senility or physical and mental
              deterioration of the donor or that fraud or duress was involved,
              or other conditions which would tend to establish that the free
              agency of the donor was destroyed and the will of the donee
              was substituted therefor.

Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977); accord Fritts v. Abbott, 938 S.W.2d at

420-21.



       After carefully reviewing the record, we conclude that the evidence supports the trial

court’s finding that Perry procured the deed to Clark’s farm by overreaching, fraud, and

deceit. At trial, Perry acknowledged that Clark trusted and depended on him to act in her

best interest.   This dependence increased after Clark was hospitalized in 1992.

Thereafter, Clark trusted and depended on Perry, not only to handle matters relating to the

farm property he leased from Clark, but also to run errands for Clark, provide her with

transportation when needed, and maintain her home in her absence. Moreover, the

evidence demonstrated that, from the time of her hospitalization in 1992 until after she

signed the subject deed in 1993, Clark’s mental and physical condition were weakened as

a result of her age and illness. Clark’s own testimony concerning her condition was

corroborated by neighbors and home health care workers, who testified that Clark became

forgetful, needed assistance in caring for herself, and was unable to understand business

matters. Finally, Clark’s testimony concerning the circumstances surrounding the

transaction indicated that Perry misled Clark and did not reveal to her the true nature of the




                                              7
documents she was signing. Under these circumstances, we affirm the trial court’s order

rescinding the deed to the farm property.



        We recognize that the parties testified to directly conflicting accounts of the events

surrounding the transaction in question;2 however, the existence of a confidential

relationship and the exercise of undue influence are questions of fact. Fritts v. Abbott, 938

S.W.2d 420, 421 (Tenn. App. 1996). Accordingly, our review of these issues is de novo

upon the record, accompanied by a presumption that the trial court’s findings are correct

unless the evidence preponderates otherwise. Id.; T.R.A.P. 13(d). The presumption of

correctness afforded the trial court’s findings is particularly important where, as here, the

court is called upon to resolve directly conflicting testimony based upon the court’s

evaluation of the witnesses’ credibility. In a similar case involving a claim of undue

influence, this court stated:

                 Much of the evidence presented to the chancellor was
                 disputed. Where the trial judge has seen and heard
                 witnesses, especially where issues of credibility and weight of
                 oral testimony are involved, on review considerable deference
                 must still be accorded to those circumstances. Where the
                 issue for decision depends on the determination of the
                 credibility of witnesses, the trial court is the best judge of the
                 credibility and its findings of credibility are entitled to great
                 weight. This is true because the trial court alone has the
                 opportunity to observe the appearance and demeanor of the
                 witnesses.

Ivey v. McAlexander, No. 02A01-9210-CH-00287, 1993 WL 330996, at *6 (Tenn. App.

Sept. 1, 1993) (citing Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423 (Tenn.

1989)).



        In affirming the order of rescission, we reiterate that Perry could have rebutted

Clark’s claim of undue influence by presenting clear and convincing proof of the

transaction’s fairness.         Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995).

Specifically, Perry could have introduced evidence that he made a full and frank disclosure

of all relevant information within his possession, that he paid an adequate consideration



        2
          W ith regard to the existence of a confidential relationship, however, we note that the nature of the
parties’ relationship and, specifically, the degree of trust which Clark placed in Perry really were not disputed
in this case.

                                                       8
for the property, or that Clark had the benefit of independent advice prior to conveying the

property to Perry. Barham v. Cooper, No. 02A01-9608-CH-00200, 1997 WL 542922, at

*6 (Tenn. App. Sept. 5, 1997). The record shows, however, that Perry failed to prove the

existence of any of these factors. Although Perry maintained that it was Clark’s idea to

convey the property to Perry, Clark testified that Perry failed to inform her that she was

signing a deed to the farm and that he even misled her into believing that she was signing

routine ASCS forms. It was undisputed that Perry paid only $20,000 for a piece of property

worth $157,000. It also was undisputed that Perry was responsible for preparing the deed

to the farm, and there was no evidence that Clark ever received advice from an

independent source concerning the significance or advisability of the transaction. Except

for the notary public who witnessed the transaction, no third parties even became aware

of the transaction until after its completion. And, although the notary public testified that

Clark appeared to know what she was doing, he also indicated that no discussions

concerning the nature of the document or the significance of the transaction occurred in

his presence.



     III. Perry’s Claims for Reimbursement for Farm Expenses and Improvements



       We also affirm the trial court’s decision to deny Perry’s request to be reimbursed for

improvements that Perry allegedly made to the farm after the conveyance, as well as for

expenses Perry incurred when he still was leasing the farm from Clark. At a post-trial

hearing, Perry testified that, after he acquired the property, he spent $2,858.53 to have silt

basins constructed which, he claimed, increased the property’s value. Perry failed to

establish, however, whether, or by how much, this work actually increased the value of the

farm property. There was no evidence that the property’s value had changed since the

February 1993 conveyance, when it was appraised at $157,587.50. Moreover, at trial

Perry’s lessee, Stoney Hargett, testified that under their lease agreement Hargett, and not

Perry, was responsible for paying all farm expenses.




                                              9
        Perry’s other claim for expenses was based on the terms of the oral lease

agreement which existed between the parties prior to Perry’s acquisition of the farm.

Under their oral lease, Clark was required to reimburse Perry for one-third of the expenses

he incurred in farming the property. In exchange, Clark was entitled to one-third of the

farm’s annual income. At trial, Perry claimed that Clark had failed to pay her share of

expenses.



        Again, we affirm the trial court’s ruling with regard to this issue. Although Perry

testified to the amounts allegedly expended by him and owed by Clark, Perry

acknowledged that he was relying upon his memory and that he had no documentation to

substantiate his claim for expenses. Perry further acknowledged that, during the years he

leased the farm from Clark, he never provided Clark with an accounting of his expenses,

nor did he ever give her a statement showing any amounts due. Each year, Perry paid

Clark one-third of the farm’s income without deducting any farm expenses. In fact, when

questioned by Clark’s attorney at trial, Perry agreed that Clark had paid all of the expenses

which she owed him:

                 Q.    Well, now, what are you claiming that you have not
                 been specifically paid for, if anything?

                 A.    I don’t say she owes me anything if that’s what you’re
                 asking, sir.

                 Q.     As far as from the financial bookkeeping standpoint,
                 you’re saying that she has paid you everything that she would
                 have owed you for?

                 A.       Yes, sir.

Based on the foregoing evidence, the trial court properly rejected Perry’s claim that Clark

still owed him for farm expenses. 3




        3
          Although Clark did no t raise this a s a se para te iss ue on appe al, she argued in her answer brief that
the trial court additionally should have awarded her $5,300 for amounts she paid to Pe rry dur ing her
hospitalization. Based on the evidence presented, however, the trial court could have found that these
amo unts represented reimbursement for farm expenses and for other expenses Perry incur red o n Cla rk’s
behalf. Accordingly, we decline to disturb the trial court’s ruling on this issue.

                                                        10
       IV. Issuance of Restraining Order Against Perry’s Lessee, Stoney Hargett



       At the hearing on Clark’s petition for a restraining order, Perry stated that he had no

objection to being enjoined from going onto Clark’s property. Perry’s lessee, Stoney

Hargett, also was given notice of and participated in the proceedings on Clark’s petition.

The restraining order subsequently issued by the trial court enjoined both Perry and

Hargett from going onto Clark’s property. In light of Perry’s stipulation at the hearing below,

on appeal Perry challenges the trial court’s issuance of the restraining order only to the

extent that the order enjoins Hargett from entering Clark’s property.



       As an initial matter, we question whether Perry has standing to appeal the

restraining order as it pertains to Hargett. Only a party aggrieved by the trial court’s order

may appeal and obtain review of that order. Ray v. Trapp, 609 S.W.2d 508, 512 (Tenn.

1980); Koontz v. Epperson Elec. Co., 643 S.W.2d 333, 335 (Tenn. App. 1982). A party is

“aggrieved” when he has an interest recognized by law which is injuriously affected by the

order, or when his property rights or personal interests are directly affected by operation

of the order. Koontz, 643 S.W.2d at 335. As a general rule, therefore, a party lacks

standing to appeal an order entered against a co-party who has elected not to appeal that

order. See, e.g., Ray v. Trapp, 609 S.W.2d at 511-12; Ryan v. Stanger Inv. Co., 620

S.W.2d 505, 508 (Tenn. App. 1981). Here, Perry is attempting to appeal an order entered

against his co-defendant in the injunction proceeding below when that party, Hargett, has

elected not to appeal the order. Although Perry also was aggrieved by the trial court’s

restraining order, he consented to and has not appealed that portion of the court’s order

which enjoins him from entering Clark’s property.



       Even if he did have standing, we still would reject Perry’s appeal of this issue

because he has cited no legal authority for reversing the trial court’s restraining order. See

Ellison v. Alley, 902 S.W.2d 415, 417 (Tenn. App. 1995); Chambers v. Chambers, 1986

WL 1249, at *2 (Tenn. App. Jan. 29, 1986), perm. app. denied (Tenn. Apr. 21, 1986);

T.R.A.P. 27(a)(7). Perry complains that “[t]he issuance of the restraining order puts [Perry]



                                              11
in the position of being liable to [Hargett] for breach of the lease as well as for expenses

incurred by [Hargett].” Not only is this argument unsupported by any legal citation, but we

fail to see how this contention relates to the issue of whether Hargett was wrongfully

enjoined from entering Clark’s property.



                               V. Award of Attorney’s Fees



       Despite our affirmance of the trial court’s judgment in this case, we find it necessary

to reverse the award of attorney’s fees made to Clark. As Perry correctly argues on

appeal, the prevailing party in a civil lawsuit may not recover her attorney’s fees in the

absence of statutory authority, a contractual provision, or a recognized equitable ground.

Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn. 1985); Owen v.

Stanley, 739 S.W.2d 782, 788 (Tenn. App. 1987), overruled on other grounds by Matlock v.

Simpson, 902 S.W.2d 384, 386 (Tenn. 1995); State ex rel. Shelby County Election

Comm’n v. Shelby County Bd. of Comm’rs, 656 S.W.2d 9, 9 (Tenn. App. 1983). In this

case, Clark cites no statutory, contractual, or equitable ground for her recovery of

attorney’s fees. Noting that her complaint requested punitive damages, Clark instead

contends that the trial court properly awarded her attorney’s fees as punitive damages.



       We conclude that this contention is not supported by the record. Our supreme court

has restricted “the awarding of punitive damages to cases involving only the most

egregious of wrongs.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992);

accord Genesco, Inc. v. Scolaro, 871 S.W.2d 487, 492 (Tenn. App. 1993). The trial court’s

imposition of punitive damages requires a concurrent finding, by clear and convincing

evidence, that the defendant acted intentionally, fraudulently, maliciously, or recklessly.

Hodges, 833 S.W.2d at 901-02. Although the trial court in this case found that Perry

procured the deed to Clark’s farm by overreaching, fraud, and deceit, the court failed to

find, by clear and convincing evidence, that Perry’s wrongful conduct was sufficiently

egregious to justify an award of punitive damages. Moreover, the record contains no




                                             12
suggestion that the trial court intended to award punitive damages when it ordered Perry

to pay Clark’s attorney’s fees.



                                    VI. Conclusion



       The award of attorney’s fees is hereby reversed. In all other respects, the trial

court’s judgment is affirmed. Costs on appeal are taxed to Perry, for which execution may

issue if necessary.




                                                             HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




                                           13
