                                                                   FILED
EWIN H. BUSH and WILLIAM F.                 )                       Nov. 17, 1995
GIBSON, Co-Administrators of the            )
Estate of Lonnie Mae Lane,                  )                      Cecil Crowson, Jr.
                                                                    Appellate Court Clerk
Deceased,                                   )
                                            )
       Plaintiffs/Appellants,               )
                                            )   Bedford Chancery
                                            )   No. 17,949
VS.                                         )
                                            )   Appeal No.
                                            )   01-A-01-9507-CH-00288
TONY WESLEY CARRICK,                        )
Individually, and as Administrator of the   )
Estate of Harvey Wesley Carrick,            )
Deceased,                                   )
                                            )
       Defendant/Appellee.                  )


                     IN THE COURT OF APPEALS OF TENNESSEE

                           MIDDLE SECTION AT NASHVILLE


          APPEAL FROM THE CHANCERY COURT OF BEDFORD COUNTY

                                AT SHELBYVILLE, TENNESSEE


                    HONORABLE TYRUS H. COBB, CHANCELLOR




ALLEN SHOFFNER
Shoffner Professional Building
207 North Spring St.
Shelbyville, Tennessee 37160
ATTORNEY FOR PLAINTIFFS/APPELLANTS


Tamra L. Smith
NORTON & SMITH
One on the Square
P.O. Drawer 37
Shelbyville, Tennessee 37160
ATTORNEY FOR DEFENDANT/APPELLEE


AFFIRMED AND REMANDED

                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION


CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
EWIN H. BUSH and WILLIAM F.                    )
GIBSON, Co-Administrators of the               )
Estate of Lonnie Mae Lane,                     )
Deceased,                                      )
                                               )
       Plaintiffs/Appellants,                  )
                                               )       Bedford Chancery
                                               )       No. 17,949
VS.                                            )
                                               )       Appeal No.
                                               )       01-A-01-9507-CH-00288
TONY WESLEY CARRICK,                           )
Individually, and as Administrator of the      )
Estate of Harvey Wesley Carrick,               )
Deceased,                                      )
                                               )
       Defendant/Appellee.                     )


                                         OPINION


       The nature of this suit is stated in the complaint as follows:

                The purpose of this action is to set aside for the benefit of the
               estate of the said Lonnie Mae Lane the conveyances of the land
               hereinafter described, which rendered the said Harvey Wesley
               Carrick and his estate insolvent and which were fraudulent as
               to creditors of Harvey Wesley Carrick and his estate.


       The Trial Court dismissed the suit in an order which stated:

                . . . Court finds that the plaintiffs have failed to establish by a
               preponderance of the evidence that Harvey Wesley Carrick had
               actual intent to defraud his creditors or that any of the
               conveyances subject of this suit render him insolvent.


       On appeal, plaintiffs present issues for review as follows:

               1. Whether the trial judge erred in sustaining defendant's
               objection and refusing to allow plaintiffs to cross-examine
               defendant about defendant's disposition of funds from a
               certificate of deposit held in the names of defendant and
               defendant's intestate, which was material to the issue of the
               decedent's ownership of assets and the insolvency of his estate.

               2. Whether the trial judge, after refusing to allow plaintiffs to
               cross-examine defendant about his disposition of funds from
               the certificate of deposit, further erred in refusing to strike and
               exclude the testimony offered by defendant which directly
               contradicted defendant's sworn unsupplemented deposition
               testimony material to the issue of the decedent's ownership of
               assets and the insolvency of his estate.



                                               -2-
              3. Whether the trial judge erred in refusing to allow plaintiffs
              to amend their complaint by adding the allegations contained in
              a written motion based upon evidence disclosed in defendant's
              supplemental deposition relative to disposition of funds from
              the certificate of deposit.

              4. Whether the trial judge erred in finding the issues in favor of
              the defendant and failing to find that the transfers made by
              defendant's intestate to defendant without consideration
              rendered the defendant's intestate and his estate insolvent.


                      -Third Issue: Refused Amendment of Complaint-

       The original complaint, filed on June 18, 1992, related only to three conveyances by

deceased of three tracts of real estate. No other property or conveyance of deceased was

mentioned.



       On June 3, 1994, plaintiffs moved to amend the complaint by adding thereto the

following:

                       Plaintiffs aver that on September 10, 1984, the
              defendant, Tony Wesley Carrick, cashed out by his individual
              endorsement alone Certificate of Deposit No. 30544 issued by
              the First National Bank of Shelbyville, Tennessee, and payable
              to the decedent, "H.W. Carrick or Tony Carrick, THWROS."
              The defendant received the principal amount of $39,054.40,
              which he used and spent for his personal purposes, including
              the construction of a residence on the land described in
              Paragraph 10 (b) of the original complaint. The defendant has
              testified that Harvey Wesley Carrick furnished all of the funds
              for the certificate of deposit and that this was in reality his
              money, not defendant's. The transfer of said money to
              defendant was made without any consideration, rendering the
              said Harvey Wesley Carrick and his estate insolvent, and
              therefore is fraudulent in law as well as in fact.

                        Plaintiffs aver, therefore, additionally and alternatively,
               that in the event the Court finds Harvey Wesley Carrick was
               not insolvent at the time he made the conveyances of real estate
               referred to in the complaint, he was rendered insolvent by the
               transfer of the funds to defendant from the certificate of
               deposit.

                     . . . (a) That the conveyances referred to in the original
               complaint be set aside to the extent necessary to satisfy the
               judgment held by the estate of the said Lonnie Mae Lane;

                       (b) That, in the event the Court does not grant the relief
               requested in the preceding item, the transfer of the money from
               the certificate of deposit be set aside to satisfy plaintiffs'


                                               -3-
                    judgment and enforced by a constructive trust and lien upon
                    defendant's property upon which improvements were
                    constructed with said money; and . . . .


        On August 26, 1994, the Trial Court filed the following memorandum:

                     This suit to set aside a conveyance was heard on its merits
                    without a jury on Nov. 16, 1993. At the conclusion of the trial
                    plaintiffs moved to strike certain testimony of the defendant.
                    The entire matter was taken under advisement. On November
                    19, 1993 plaintiffs filed a motion to reopen the evidence. The
                    motion to strike was overruled and the motion to reopen the
                    evidence was granted.

                     On June 3, 1994 plaintiffs filed a motion to amend the
                    complaint to add a new cause of action. The cause is before the
                    Court on the motion to amend the complaint.

                     After consideration of the motion and the Court record, the
                    Court is of the opinion that said motion is not timely or
                    otherwise well taken and should be overruled.

                     Upon application of either party this cause will be set for the
                    hearing of any additional evidence under the original
                    complaint.


        On September 2, 1994, the memorandum was made the order of the Court.



        After a further hearing on January 13, 1995, an order was entered dismissing

plaintiffs' suit.



        T.R.C.P. Rule 15.01 provides in pertinent part as follows:

                    Amendments. - A party may amend his pleadings once as a
                    matter of course at any time before a responsive pleading is
                    served or, if the pleading is one to which no responsive
                    pleading is permitted and the action has not been set for trial,
                    he may so amend it at any time within fifteen (15) days after it
                    is served. Otherwise a party may amend his pleadings only by
                    written consent of the adverse party or by leave of court; and
                    leave shall be freely given when justice so requires. . . .


        As stated above, the original complaint was filed on June 18, 1992. The answer of

defendant was filed on August 3, 1992. On June 3, 1994, when the motion to amend was

filed, amendment was not a matter of right, but a matter of discretion of the Trial Court. The



                                                   -4-
application to amend came two years after the filing of the original complaint and six months

after the cause had been heard on its merits and taken under consideration by the Trial Judge.



       At the trial on November 16, 1993, defendant testified in part as follows:

                       A.     Well, in 1984 he would have had a lot of the
               same assets that he had when he deceased in '87. Such as his
               personal checking account, his car, his household furniture, his
               stock in Co-op, undivided dividends through the Co-op. He
               would also have assets of a joint CD that we held together. He
               would also have assets as far as the joint farm account. His
               name was still on the farm account. He could write a check if
               he wanted to. Occasionally he would, but not very often.
               (Emphasis supplied.)

                       ....

                      Q.     At the time of the conveyance of February 1984,
               do you have knowledge of how much was in the joint CD that
               you and he held together?

                       ....

                       THE WITNESS:         First National Bank that
                       was approximately thirty-seven thousand five-
                       hundred dollars.


       Clearly, as of November 16, 1993, six months before the application to amend, the

plaintiffs had knowledge of the jointly held certificate of deposit. At that time the following

occurred:

                       Q.    And is it your testimony that that was the thirty-
               seven thousand, five hundred approximately that your dad
               owned or had at the time he gave you this third deed? Is that
               your testimony?

                      A.      That was a joint CD between my father and
               myself; correct.

                       Q.     What happened to that money?

                       MS. SMITH: Your Honor, I object to what
                       happened to the money; the question is --

                       THE COURT: Sustained.

               BY MR. SHOFFNER:

                        Q.      How long did you and your dad keep that money
               in that joint account?

                                              -5-
                        MS. SMITH: Your Honor, I object to that also.
                        The question is whether or not he had it at the
                        time of or needed --

                        THE COURT: Why is that material? The issue
                        here is regarding February 10th, whether they
                        had it at that time or not? Why is it material
                        what happened to it later.

                        MR. SHOFFNER: Well, Your Honor, I'm
                        trying to show that if he had these accounts at
                        the time of his death, Mr. Carrick's death, then
                        this property would not have gone into his estate
                        but to his son, Mr. Carrick.

                        THE COURT: You didn't -- the suit does not
                        address these, obtaining these funds; does it? It
                        just has to do with real estate.

                        MS. SMITH: That's correct, Your Honor.

                        THE COURT: Maybe I don't understand you.
                        Say it again.

                        MR. SHOFFNER: Your Honor, the point I'm
                        trying to make is that apparently there is a claim
                        that these funds, evidenced by these certificates
                        of deposit were Mr. Harvey Carrick's assets and
                        funds, at that time whereas actually he didn't --
                        this was a joint account. This money was not in
                        his name.

Te Nov. 16, 1993 at 82-84.


        Thus, on November 16, 1993, plaintiffs were reminded that the suit did not relate to

the certificate of deposit, and no effort was made until six months later to amend the suit to

include the certificate of deposit.



        It appears that, during the trial, the existence of the certificate of deposit was

considered relevant only on the question of whether deceased was rendered insolvent by the

conveyances of real estate mentioned in the complaint. The effort to charge the defendant

with conversion of the certificate of deposit to his own use came as an afterthought six

months later.




                                                -6-
       After the complaint has been answered, amendment of the complaint is not a matter

of right, but is subject to the discretion of the Trial Judge which will not be disturbed on

appeal in the absence of an erroneous exercise of discretion. Merriman v. Smith, Tenn. App.

1980, 599 S.W.2d 548.



       No reversible error is found in the refusal of leave to amend under the circumstances.



 -First and Second Issues: Refusal of Cross-Examination and Failure to Strike Testimony-

       In support of this issue, plaintiffs cite pages 37 and 38 of the technical record and

pages 82-85 and 114-116 of the transcript. Page 37 of the technical record contains the

following:

                This suit to set aside a conveyance was heard on its merits on
               Nov. 16, 1993. At the conclusion of the evidence plaintiffs
               moved to strike certain testimony of the defendant and
               subsequently filed a motion to reopen the evidence as
               alternative relief.

                After due consideration of the respective motions, plaintiffs'
               brief and the defendant's response, the court finds that the
               motion to strike should be denied and the motion to reopen the
               evidence should be granted.


       Page 38 of the technical record is the order implementing page 37.



       Pertinent portions of pages 82-85 of the transcript are quoted above.



       Pages 114-116 of the transcript record statements of counsel for the plaintiff in final

argument on November 16, 1993, as follows:

                       MR. SHOFFNER: First of all, Your Honor, I
                       want to make a motion at this time to exclude
                       from consideration as evidence in this case,
                       evidence of testimony which directly contradicts
                       the deposition of Tony Carrick in this case. And
                       based on the grounds that there was no
                       supplementation to his answers that was
                       previously read into this record. And I'd like
                       again to refer to that question and the answer



                                               -7-
                       that he gave me on August 22nd, I mean 19th of
                       1992.

                               I asked him this question: All right, let
                       me get back to the question that I earlier asked
                       you, at the date of that conveyance what assets,
                       if any, did your father have left after he gave you
                       that deed. His answer: He had his checking
                       account, his furniture, he had an old '68 model
                       Buick car that was wrecked in the front end and
                       whatever cash he might have had in his pocket, I
                       guess.

                               ....

                       . . . He didn't give me a truthful answer because
                       now at the hearing of this case, he comes in to
                       Court and claims that his dad, Mr. Harvey
                       Carrick, had thirty-seven thousand five-hundred
                       dollars approximately in a CD. He didn't say
                       one thing about a CD in his deposition. He
                       never supplemented an answer to that
                       deposition.

                              And I move that the Court strike the
                       evidence dealing with these certificate of
                       deposits.


       Other than the quoted excerpt from pages 82-85 of the transcript, no effort to cross-

examine or refusal of cross-examination is found in the cited part of the record.



       It appears that, at this point, plaintiff was attempting to exclude from the record any

reference to the certificate of deposit the existence of which would defeat plaintiffs' claim

that deceased was rendered insolvent by the real estate conveyances. As previously noted,

cross-examination as to conversion of the proceeds of the certificate of deposit was excluded

because conversion of such funds was not included in the original complaint.



       On the subject of the existence and disposition of the certificate of deposit, an official

of the bank testified without contradiction in pertinent part as follows:

                       Q.       All right, would you tell the Court what
               certificates of deposit you have in your possession, when they
               were issued and whose names were placed on that certificate of
               deposit?



                                               -8-
                        A.       The first one issue date was September 7th,
                1983, it is entitled in the name of H. W. Carrick or Tony
                Carrick.

                        Q.         What was the amount?

                        A.     The amount was thirty-seven thousand, two
                fifty-four-0-two.

                        ....

                       A.       I have one issue date March 8th of 1984, titled
                H. W. Carrick or Tony Carrick in the amount of thirty-nine
                thousand, fifty-four dollars and forty cents.

                        Q.      And is there a designation as to how that
                certificate of deposit was held?

                        A.         Either or survivor.


        According to the complaint, the last conveyance of realty (which would be the one

allegedly rendering deceased insolvent) was on February 10, 1984. According to the above

testimony, on February 10, 1984, deceased was a joint owner of the $37,254.02 certificate of

deposit issued on September 7, 1983, and renewed on March 8, 1984.



        Thus, all information relevant to the existence of the certificate of deposit on the

critical and determinative date was before the Court by uncontradicted testimony of the bank

employee, and the striking of defendant's testimony on the same subject would not have

affected the result of the suit.



        No reversible error is found in plaintiffs' second issue.



                             -Fourth Issue: Conclusion of Trial Court-

        T.C.A. Section 66-3-101 reads as follows:

                Conveyances in fraud of creditors or purchasers void. -
                Every gift, grant, conveyance of lands, tenements,
                hereditaments, goods, or chattels, or of any rent, common or
                profit out of the same, by writing or otherwise; and every
                bond, suit, judgment, or execution, had or made and contrived,
                of malice, fraud, covin, collusion, or guile, to the intent or
                purpose to delay, hinder, or defraud creditors of their just and

                                                  -9-
               lawful actions, suits, debts, accounts, damages, penalties,
               forfeitures; or to defraud or to deceive those who shall purchase
               the same lands, tenements, or hereditaments, or any rent, profit,
               or commodity out of them, shall be deemed and taken, only as
               against the person, such person's heirs, successors, executors,
               administrators, and assigns, whose debts, suits, demands,
               estates, or interest, by such guileful and covinous practices as
               aforementioned, shall or might be in any wise disturbed,
               hindered, delayed, or defrauded, to be clearly and utterly void;
               any pretense, color, feigned consideration, expressing of use, of
               any other matter or thing, to the contrary notwithstanding. . . .


       T.C.A. Section 66-3-305 reads as follows:

               Conveyances by insolvent without fair consideration
               declared fraudulent.- Every conveyance made and every
               obligation incurred by a person who is or will be thereby
               rendered insolvent is fraudulent as to creditors without regard
               to such person's actual intent, if the conveyance is made or the
               obligation is incurred without a fair consideration. . . .


       In order to make a conveyance fraudulent against creditors, it must be without a fair

consideration, leaving the grantor insolvent; or it must be made with actual intent to hinder,

delay, or defraud creditors. Hicks v. Whiting, 258 S.W. 784 (1924), 149 Tenn. 411; Ottarson

v. Dobson & Johnson, Inc., 430 S.W.2d 873 (1968), 58 Tenn. App. 408; Macon Bank &

Trust Co. v. Holland, 715 S.W.2d 347 (Tenn. Ct. App. 1986).



       Every conveyance without a fair consideration is fraudulent if the conveyor is thereby

rendered insolvent, or if he is engaged or about to engage in a business or transaction for

which his remaining property is an unreasonably small capital, or if he intends or believes

that he will incur debts beyond his ability to pay; the second situation making the

conveyance fraudulent as to creditors and as to persons who become creditors during the

continuance of such business transaction, and the third as to both present and future creditors.

State ex rel. v. Nashville Trust Co., 190 S.W.2d 785 (1944); 28 Tenn. App. 388.



       A conveyance which renders the grantor execution proof is fraudulent, irrespective of

grantor's intent, and may be set aside where there was no consideration for the conveyance,




                                              -10-
and grantee knew of the fraud at the time of the conveyance. Citizens Bank & Trust Co. v.

White, 12 Tenn. App. 583 (1930).



        The evidence shows that, at the time of the three conveyances mentioned in the

complaint, deceased was possessed of property adequate to satisfy his debts and was not

rendered insolvent by any one of the said conveyances.



        At the time of the conveyances, the joint bank account was subject to the claims of

creditors of deceased as if he were the sole owner thereof. T.C.A. § 45-2-703(a).



        There is no evidence of any actual intent of deceased to defeat any present or future

creditor.



        The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

plaintiffs. The cause is remanded to the Trial Court for any necessary further proceedings.



        Affirmed and Remanded.


                                              _____________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



_____________________________________
SAMUEL L. LEWIS, JUDGE



_____________________________________
BEN H. CANTRELL, JUDGE




                                              -11-
