                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                            February 12, 2008 Session

HAROLD WAYNE HARRIS v. SHERRY EDWARDS, ULYSES EDWARDS
               and CARL VANCE HARRIS

                  Direct Appeal from the Chancery Court for Rhea County
                      No. 9970     Hon. Jeffrey F. Stewart, Chancellor



                    No. E2007-01772-COA-R3-CV - FILED MAY 14, 2008



Plaintiff brought this action to void two deeds executed by the deceased shortly before he died.
Plaintiff sought to void the deeds on the grounds that the grantees of the deed exerted undue
influence on deceased in obtaining the deeds and that deceased was not competent to make the
deeds. In a bench trial, the Chancellor held that plaintiff did not prove undue influence and that the
deceased was fully competent to contract and execute the deeds. On appeal, we affirm the Judgment
of the Trial Court.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, J., joined.

M. Keith Davis, Dunlap, Tennessee, for appellant, Harold Wayne Harris.

Rebecca L. Hicks, Dayton, Tennessee, for appellees, Sherry Edwards, Ulyses Edwards and Carl
Vance Harris.



                                             OPINION


                In this action to set aside warranty deeds, the petitioner alleged that he was the
biological son on the deceased grantor, and that respondents, Carl Vance Harris and Sherry Edwards
are also the grantor’s biological children. Further, that the deceased, Carl Henry Harris, died on the
7th day of June, 2004, having become ill with cancer several months earlier, and that approximately
three days prior to his death, the grantor arranged with an attorney to prepare a deed and bring it to
his home to execute. That the grantor executed the deed, conveying real estate to Carl Vance Harris,
with grantor retaining a life estate, and on the same date grantor executed a deed in which he
conveyed the remainder interest in the tract of real estate to Sherry Edwards and Ulyses Edwards,
and retained a life estate. The Complaint concluded that the defendants unduly influenced decedent
to execute the deeds when he was incompetent, ill and near death. Plaintiff prayed that the two deeds
at issue be set aside and that he be awarded his share of decedent’s estate as he had died intestate.

              After answers, the trial was conducted by the Chancellor who issued a Memorandum
Opinion and Final Judgment. The Judgment was based on the Chancellor’s Memorandum Opinion
wherein he made the following findings of fact:

               1.      The parties are the children and son-in-law of Henry Harris, who died on
                       June 7, 2004. The decedent conveyed all of his real estate to defendants,
                       Sherry and Ulyses Edwards and Carl Vance “Bobby” Harris. Plaintiff,
                       Harold Wayne “Wayne” Harris, alleges that the transfer of property was due
                       to a confidential relationship between the decedent and Sherry Edwards and
                       her exercise of undue influence over her father. Wayne Harris also alleges
                       that the decedent lacked the mental capacity to execute the deeds in question.

               2.      Henry Harris had a history of lung cancer which was diagnosed and treated
                       in late 2003. In May 2004 Mr. Harris learned that the cancer had reoccurred
                       and he met with his attorney, Gary Fritts, on June 2, 2004 to discuss the
                       preparation of the deeds in question. The deeds were executed by Henry
                       Harris and notarized by Gary Fritts on June 4, 2004.

               3.      Henry Harris died on June 7, 2004.

               4.      The farm in question was a generation to generation farm and it was
                       important to Henry Harris that the farm remain within the family. The
                       Defendants had been most involved in the operation of the farm with Henry
                       Harris although plaintiff had helped with the operation at times.

               5.      Henry Harris was a strong-willed man who made his own decisions.

               6.      Gary Fritts had been Henry Harris’ friend and attorney for over thirty years.

               7.      Henry Harris discussed estate planning with Gary Fritts when he was
                       diagnosed with cancer in October 2003. Henry Harris’ plan was to transfer
                       the farm to the Defendants and to omit his son, Wayne Harris. Wayne Harris
                       has a longstanding history of alcohol use. There was evidence that Wayne
                       Harris abuses alcohol and there was evidence to the contrary. The evidence
                       did show that Henry Harris was concerned about Wayne Harris’ alcohol use


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       and, according to at least one witness, Henry Harris was concerned that
       Wayne Harris might convey the farm away given the opportunity.

8.     Henry Harris’ medical condition improved for a time after treatment and the
       urgency to attend to estate planning passed. The cancer returned in an
       aggressive form in May 2004.

9.     Two medical experts, Dr. Stuart Bacon and Dr. Darrell Johnson, testified
       regarding Henry Harris’ mental capacity. Dr. Bacon, Henry Harris’ family
       doctor, last saw Mr. Harris on May 28, 2004 and he opined that on that date
       Mr. Harris was mentally competent. Dr. Bacon further reviewed Dr.
       Johnson’s notes from a June 1, 2004 visit with Mr. Harris. Dr. Bacon
       concluded from these notes that Mr. Harris was mentally competent on June
       1, 2004. Dr. Johnson, Mr. Henry Harris’ oncologist, was of the opinion that
       Henry Harris was unable to understand legal formalities due to his rapid
       physical deterioration. However, Dr. Johnson acknowledged that he had not
       ever assessed Henry Harris for his mental competence to handle legal affairs.

10.    Numerous witnesses expressed their lay opinions regarding Mr. Henry
       Harris’ mental capacity between June 1, 2004 and June 4, 2004. Some of the
       witnesses believed him to be competent and some did not.

11.    The Trial Court focused on the testimony of Gary Fritts, a practicing member
       of the Rhea County Bar Association for many years and a former General
       Sessions Judge, who was a friend of and attorney for Henry Harris for many
       years. Mr. Fritts testified that he met with Henry Harris and discussed the
       transfer of the property and the nature of the transaction. He believed Henry
       Harris to be mentally competent to make his decisions during this discussion.
       On June 4th he presented the two deeds to Henry Harris for him to make his
       mark on. He read the content of the deeds to Henry Harris. He also testified
       that he read the Affidavit of Acknowledgment to the witnesses as well,
       although one of the witnesses denied this fact. Gary Fritts did not benefit
       from the transaction in any way.

12.    The hospice nurse visited Henry Harris on June 4, 2004. The nurse found
       Henry Harris oriented to time, place and circumstances. He was in a great
       deal of pain.

13.    The defendants established clearly and convincingly that Henry Harris
       received proper independent advice regarding this transaction.

Based on these findings, the Chancellor concluded:



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                1.      That there was no showing of a confidential relationship coupled with undue
                        influence. While defendants had close relationships with Henry Harris, the
                        evidence showed that he was the dominant figure in these relationships.

                2.      There are no discrepancies between the effect of the deeds and Henry Harris’
                        expressed intentions as stated to his attorney. Thus, the transfer did not result
                        in any unjust or unnatural result.

                3.      The Trial Court found that Henry Harris was mentally competent at the time
                        he executed the deeds and that Plaintiff had failed to meet his burden of proof
                        in order to set aside the deeds.

                Plaintiff raises these issues on appeal:

                A.      Did plaintiff/appellant meet his burden of showing the existence of a
                        confidential relationship?

                B.      Did defendants/appellees rebut the presumption of undue influence?

                C.      Did defendants meet their burden of showing that the decedent received
                        proper independent advice?

                D.      Did plaintiff/appellant meet his burden of showing that the decedent was not
                        mentally competent?

                In this Court, a trial court's factual findings are presumed to be correct, and this Court
will not overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). We review a trial court’s
conclusions of law under a de novo standard upon the record with no presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). When the resolution of the
issues in a case depends upon the truthfulness of witnesses, the trial court who has the opportunity
to observe the witnesses’ manner and demeanor while testifying is in a far better position than this
Court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995). The
weight, faith, and credit to be given to any witness's testimony lies in the first instance with the trier
of fact, and the credibility accorded will be given great weight by the appellate court. In re Estate
of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997).

                Plaintiff argues that the deeds at issue should be set aside and voided, due to the
undue influence of Defendants. The doctrine of undue influence is well established in Tennessee
and transactions by which one party is granted a gratuitous benefit from another party are void if the
grantee is shown to have exercised undue influence over the grantor to obtain the relief. Brown v.
Weik, 725 S.W.2d 938, 944 (Tenn. Ct. App.1983). In this case the evidence shows that a normal
father/child relationship existed between Henry Harris and the defendants. The existence of a


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normal father/child relationship is not the same as a per se confidential relationship in law, which
would raise the presumption of invalidity as to a benefit bequeathed to one party to the relationship
by the other. Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973). Relationships
between family members are not confidential per se and will only be found to be confidential where
confidence is placed by one party in the other party and the recipient of the confidence is the
dominate personality in the relationship with the ability arising out of the confidence to influence
and exercise dominion over the weaker or dominated party. Iacometti at 499; Kelley v. Johns, 96
S.W.3d 189 at 197. The mere fact that the grantor and grantee are members of the same family does
not give rise to an inference or presumption of undue influence. Iacometti at 499.

                The party who claims the existence of the confidential relationship has the burden of
proving such relationship by a preponderance of proof. In addition to proving that a confidential
relationship exists among family members, the contestant to the transaction must establish at least
one other suspicious circumstance, such as a transaction which benefits the dominant party to the
confidential relationship. Kelley, at 197. Under the circumstances presented here, where a deed has
been executed, proof that the grantor was in receipt of independent advice before entering into the
transaction is often presented to rebut the presumption of undue influence. Matlock, 902 S.W.2d at
386.

                 In this case, the Trial Court concluded that while Henry Harris and his daughter
Sherry had a close relationship, it was not a confidential relationship giving give rise to a
presumption of undue influence. The Court noted that Henry did rely on Sherry to take him to his
medical appointments. This reliance, however, is within the scope of the normal father-daughter
relationship, since Henry was ill and undergoing treatment for cancer. He needed transportation and
support, and Sherry was available and willing to assist her father. These are not the type of
circumstances that can be characterized as Sherry maintaining dominion and control over her father
to the extent that a confidential relationship was created. The Trial Court also addressed the farming
relationship between Henry, his son Bobby and son-in-law Ulyses and found that if anyone
dominated this relationship, it was Henry. The evidence does not preponderate against the Trial
Court’s findings. Tenn. R. App. P. 13(d). See also, Pittman v. Pittman, No. M2006-01256-DOA-
R3-CV, 2007 wl12172070, 8-9 (Tenn. Ct. App. April 24, 2007).

                The Trial Court focused on the testimony of Gary Fritts, Henry Harris’ long time
friend and attorney. Mr. Fritts testified that he had talked to Henry many times over a long period
of time regarding Henry’s intention to deed a portion of the farm to Sherry and Ulyses and the rest
of the farm to Bobby. Fritts also testified that Henry had expressed his intention to disinherit Wayne
during these conversations. Fritts’ recollection of Henry’s often stated intent to dispose of the farm
in this manner was verified by the testimony of numerous other witnesses with whom Henry had
shared his intentions. Additionally, there was overwhelming evidence that Henry was a
"strong-willed man”, "who knew what he wanted." Dr. Bacon commented on this aspect of Henry’s
character which he demonstrated during the last visit Henry had with Dr. Bacon. The evidence
clearly demonstrated that the deeds Henry executed in the last days of his life were in keeping with
his long held intentions coupled with Henry ’s universal reputation as "strong willed" refute a finding


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that the defendants used their family relationship with Henry to dominate and control him with
regard to the disposition of the farm. The Trial Court, who had the benefit of hearing the testimony
of the witnesses on this issue, was in the best position to measure their credibility. Since no
confidential relationship was established, the presumption of undue influence did not arise, and no
rebuttal on this issue was triggered.

               Finally, plaintiff contends that the deeds at issue should be set aside because Henry
Harris was not mentally competent when he executed the deeds on June 4, 2004, and asserts that a
deed executed by a mentally unbalanced grantor with no intelligent comprehension of the act being
performed is void. Bright v. Bright, 729 S.W.2d 106, 109 (Tenn. App.1986).

                Plaintiff is seeking to rescind the deeds on the grounds of mental incapacity of the
grantor and has the burden of proof on this issue. Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct.
App. 2000). The mental capacity required to execute a warranty deed is essentially the same and
equates to the mental capacity required to enter into a contract. In re Conservatorship of Davenport,
No. E2004-01505-COA-R3-CV, 2005 W L 3533299 at * 17 -18 (Tenn. Ct. App. Dec. 27, 2005).
In Roberts v. Roberts, 827 S.W.2d 788 (Tenn. App.1991), this Court considered the issue of mental
capacity to execute instruments and relied on the following language from C.J.S. :

               The test of mental capacity to contract is whether the person in question possesses
               sufficient mind to understand, in a reasonable manner, the nature, extent, character,
               and effect of the act or transaction in which he is engaged; the law does not gauge
               contractual capacity by the standard of mental capacity possessed by reasonably
               prudent men. It is not necessary to show that a person was incompetent to transact
               any kind of business, but to invalidate his contract it is sufficient to show that he was
               mentally incompetent to deal with the particular contract in issue, ...

               On the other hand, to avoid a contract it is insufficient to show merely that the person
               was of unsound mind or insane when it was made, but it must also be shown that this
               unsoundness or insanity was of such a character that he had no reasonable perception
               or understanding of the nature or terms of the contract. The extent or degree of
               intellect generally is not in issue, but merely the mental capacity to know the nature
               and terms of the contract.

                                               ****

               In the final analysis, contractual capacity is a question to be resolved in the light
               of the facts of each case and the surrounding circumstances.

Roberts, 827 S.W.2d at 791-92 (quoting 17 C.J.S. Contracts § 133(1)(e)).

               This treatise now gives further guidance specific to donations of property:



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               The general rule . . . is that, if the donor has sufficient mental capacity to comprehend
               the transaction, if he understands the extent and value of his property, what persons
               are the objects of his bounty, and the manner in which he is distributing his property
               among them, his gift will be valid. CJS GIFTS § 13.

                 Thus the test to be applied here is whether the grantor had a reasonable understanding
that he was permanently conveying a certain portion of his farm by deed to his daughter Sherry and
her husband Ulyses and that he was conveying the remainder of his farm to his son Bobby, while
retaining a life estate. The evidence demonstrates that Henry had planned on conveying the farm to
Sherry, Ulyses and Bobby for years and that upon receiving the diagnosis of cancer in October 2003
he began to put his plan into action when he asked Sherry to draw up the map of the portion he had
promised to her and Ulyses. As he weakened during the Spring of 2004 he spoke to Gary Fritts
about his estate plan and in the last week of his life he met with Mr. Fritts to finalize his plan.
Further he met with his daughter Judy and explained how and to who the farm would be conveyed.
The deeds he executed on June 4th exactly reflected the estate plan he had discussed with multiple
witnesses. The Trial Court, in finding that the grantor had the mental capacity to execute the deeds,
relied on the testimony of Gary Fritts who had known Henry as a friend and client for thirty years,
and had discussed the estate plan with Henry many times over many years. Fritts testified that
Henry’s mental state was good during the meeting two days before the deeds were executed, and
Henry was able to provide him with information he needed to draft the deeds. Fritts also testified
that he read the completed deeds aloud to Henry on June 4th and questioned Henry as to his
understanding of the deeds. Fritts was firm in his belief that Henry knew what he was doing when
he signed the deeds, as well as the witnesses to Henry’s execution of the deeds.

              The Trial Court considered the testimony of all the witnesses and put particular
emphasis on the testimony of Fritts regarding Henry’s mental capacity at the time he executed the
deeds. Based upon the evidence, the Trial Court held that Henry Harris was mentally competent
when he executed the deeds. In this connection see, Daniel v. Hopson, CA No. 730, 1988 WL 1734
(Tenn. App. Jan 15, 1988).

               For the foregoing reasons, we affirm the Trial Court’s Judgment, finding there was
no confidential relationship between Henry Harris and the defendants, and the Trial Court’s
determination that Henry Harris had the mental capacity to execute the deeds.

               We assess the costs to Harold Wayne Harris.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.


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