                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                         ASSIGNED ON BRIEFS APRIL 19, 2005

       IN RE: CONSERVATORSHIP OF LAJUANA YVETTE BROWN
         DELISA PROVOST v. ALTON BROWN AND RON NANCE,
                        CONSERVATORS

                   Direct Appeal from the Probate Court for Shelby County
                            No. B-31256    Donn Southern, Judge



                     No. W2004-02825-COA-R3-CV - Filed August 5, 2005


This appeal arises out of a petition filed by the conservators requesting the imposition of a
constructive trust on assets received by the appellant after the decedent’s death. After issuing a
temporary restraining order, testimony was taken and the trial court determined that the decedent
intended for all funds received by the appellant upon decedent’s death to be held in trust for
decedent’s daughter, the ward. The trial court imposed a constructive trust on these assets, ordered
that the assets be paid over to the conservator of the ward’s estate, and determined that the appellant
was an unsuitable trustee for the funds. The trial court further ordered that the appellant would bear
the costs of the proceedings but the conservators were responsible for their attorney’s fees. This
appeal followed. We affirm.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Melanie E. Taylor, Memphis, TN, for Appellant

Randell K. Brooks, Memphis, TN, for Appellees

                                             OPINION

                                  Facts and Procedural History

       LaJuana Yvette Brown (d.o.b. 2/23/1969) (“Child”) has a mental disability and primarily
lived with her mother, Charlie Mae Brown (“Mother” or “Decedent”) until Mother died on April 2,
1998. Alton Brown (“Father”), Child’s father, and Mother divorced on May 25, 1982. After Mother
died, Delisa Provost (“Provost” or “Appellant”), Mother’s sister, filed a petition to appoint her the
conservator for Child. Father answered and counter-petitioned arguing that he should be appointed
the conservator for Child. A guardian ad litem was appointed and submitted a report to the trial
court; additionally, an affidavit of Child’s physician was submitted to the trial court stating that
Child was unable to manage her personal and financial affairs. After a hearing on both petitions, the
trial court determined that Child is disabled and appointed Father conservator of Child’s person and
Ron Nance (“Nance” or, collectively with Father, “Appellees”), a disinterested person, conservator
of Child’s estate and finances. Thereafter, on March 17, 1999, the Appellees filed a petition for the
imposition of a constructive trust on funds received by Provost as a result of Mother’s death. After
a hearing on the matter, the trial court, in a memorandum opinion, made the following findings:

               Charlie Mae Brown (“Decedent”) died intestate on April 2, 1998. She had
       one daughter, LaJuana Yvette Brown (“LaJuana”), who is a mentally retarded child.
       An order was entered on September 10, 1998, appointing Alton Brown (“Brown”),
       natural father of LaJuana, as Conservator of the Person of LaJuana Yvette Brown,
       and Ron Nance (“Nance”) as Conservator of the Estate of LaJuana Yvette Brown
       (“the Conservators”).

                Decedent was diagnosed with cancer in 1991 and, as a result, began to make
       provisions for her daughter. It is uncontested that the Decedent believed that her
       sister, Delisa Provost (“Provost”), would be the caretaker of LaJuana after her death.
       Believing that Provost would be the legal guardian of LaJuana, Decedent made the
       following financial provisions: (1) She named Provost as beneficiary on one life
       insurance policy totaling $125,000; (2) She named Provost as beneficiary in trust for
       LaJuana Brown on another life insurance policy amounting to $23,750; (3) She added
       Provost’s name as a POD beneficiary to a bank account totaling $12,000; (4) She
       named Provost and LaJuana as co-beneficiaries of her retirement plan totaling
       $97,620 ($48,810 each).

               On March 17, 1999, the Conservators filed a petition requesting that this
       Court impose a constructive trust on the monies received by Delisa Provost as a
       result of the death of Charlie Mae Brown. The Conservators assert that Provost was
       the designated beneficiary of these accounts only because Decedent believed that
       Provost would hold the monies in trust for LaJuana.

               On that same day, the Conservators also filed a petition for this Court to order
       Provost to return all the Decedent’s personal property to the Estate. Provost, along
       with Decedent’s other family members, had removed the Decedent’s property from
       her home, and had divided it up amongst themselves. The Conservator of the Person
       of LaJuana did receive some, but not all, of the Decedent’s property to be used for
       the benefit of LaJuana. The Conservators assert that all property of the Decedent’s
       Estate should be used for the benefit of LaJuana and that such property, or, in the
       alternative, the reasonable value of such property, should be returned to the Estate.



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....

         In addressing the burden of proof required for the imposition of a constructive
trust, Provost asserts that the Conservators have not met the necessary “clear, cogent,
and convincing” standard. The proof offered by the Conservators, however, consists
of admissions made by Provost indicating that she knew the monies were to be used
for the benefit of LaJuana, and that she had, in fact, promised the Decedent that she
would use the monies as requested.

        The record in this case establishes that the Decedent and Provost enjoyed a
close relationship. The Decedent even believed that Provost would be the one to care
for LaJuana, her only daughter, after her death. The record further establishes that
the Decedent was preparing for her death and wanted to ensure that her daughter
would be cared for the remainder of her life. In making those preparations, the
Decedent told Provost that she was arranging her finances so that Provost would have
the necessary funds in trust to care for LaJuana. Provost herself testified to the terms
of the oral trust. Thus, upon review of the record, the clear, cogent and convincing
evidence reveals that the Decedent named Provost as the legal beneficiary of her life
insurance policies, retirement account and bank account, but that Decedent imposed
an oral trust upon the proceeds by instructing Provost to hold those funds as trustee
for LaJuana Brown. The Court, however, finds that Provost is no longer considered
a suitable trustee for these funds, due to the following facts:

1. The failure of Provost to properly account for the assets she has already received
as a result of the death of Charlie Mae Brown;
2. The failure of Provost to turn over even the $23,750 expressly held by her in trust
for LaJuana Brown;
3. The failure of Provost to cooperate with this Court in a full and open manner;
4. The fact that, to date, Provost has apparently not found any circumstance in which
any of the assets of the Decedent’s estate should be made available for the support,
maintenance or well-being of LaJuana;
5. A disinterested person has been appointed as Conservator for the Estate of
LaJuana Brown;
6. Provost has a conflict of interest due to her strong negative feelings against
Brown, the father and Conservator of the Person of LaJuana, and her fear that Brown
might benefit from the proceeds of the Decedent’s estate. Provost has a further
conflict of interest because of her strongly-held belief that the assets of the
Decedent’s estate should come to her, her parents and her siblings upon the death of
LaJuana rather than to Brown; and
7. Provost resides in California whereas LaJuana resides with her father in
Tennessee.




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After issuing its memorandum opinion, the trial court ordered Provost to relinquish all assets she
received as a result of Decedent’s death to Nance, as conservator of Child’s estate. Provost now files
an appeal to this Court,1 presenting the following issues, as we perceive them, for our review:

         I.        The trial court erred when it determined that a constructive trust existed and that
                   Appellant should not be the trustee of the funds left in trust for Child; or, in the
                   alternative,
         II.       The trial court erred when it ordered Appellant to relinquish the funds from the life
                   insurance policies, bank accounts, and retirement accounts because the plain
                   language of the policies designate her the beneficiary.

For the following reasons, we affirm the decision of the trial court.

                                                Standard of Review

       When a trial court sits without a jury in a civil action, we review its findings of fact de novo
upon the record, affording its findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d) (2005). However, we review a trial court’s
conclusions of law de novo affording the trial court’s conclusions no presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

       Further, the Appellees had the burden of proving, by clear and convincing evidence, the
existence of a constructive trust based on parol evidence. Browder v. Hite, 602 S.W.2d 489, 493
(Tenn. Ct. App. 1980); see also Story v. Lanier, ___ S.W.3d ___, No. W2003-02194-COA-R3-CV,
2004 Tenn. App. LEXIS 761, at *47-48 (Tenn. Ct. App. Nov. 17, 2004). This Court has previously
discussed the requirements of this standard of evidence:

                 The “clear and convincing evidence” standard defies precise definition.
         Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is more
         exacting than the preponderance of the evidence standard, Santosky v. Kramer, 455
         U.S. at 766, 102 S. Ct. at 1401; Rentenbach Eng’g Co. v. General Realty Ltd., 707
         S.W.2d 524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as the
         beyond a reasonable doubt standard. Brandon v. Wright, 838 S.W.2d 532, 536
         (Tenn. Ct. App. 1992); State v. Groves, 735 S.W.2d 843, 846 (Tenn. Crim. App.
         1987).


         1
                    Provost previously filed an appeal to this Court after the trial court issued its order requiring Provost
to relinquish all assets she received as a result of Decedent’s death to Nance. However, we dismissed this appeal because
the order Provost appealed from was not a final judgment because it reserved the issue of attorney’s fees and court costs.
After dismissing this appeal, the Appellees filed a petition requesting court costs and attorney’s fees. Subsequently, the
trial court entered an order denying the Appellees’ request for attorney’s fees but ordering Appellant to pay court costs.
The trial court also approved an award of fees for Appellees, apparently as conservators for Child. After these
proceedings, Appellant brought the instant appeal.

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               Clear and convincing evidence eliminates any serious or substantial doubt
       concerning the correctness of the conclusions to be drawn from the evidence. See
       Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). It should
       produce in the fact-finder’s mind a firm belief or conviction with regard to the truth
       of the allegations sought to be established. In re Estate of Armstrong, 859 S.W.2d
       323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838 S.W.2d at 536; Wiltcher v.
       Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985).

O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).

                                         Law and Analysis

       Appellant’s arguments center around the contention that the trial court erred when it
determined a constructive trust existed for the life insurance proceeds, retirement and bank accounts,
and that Appellant should not be trustee of such trust.

       Tennessee has imposed constructive trusts in four types of cases. They are: 1) where
       a person procures the legal title to property in violation of some duty, express or
       implied, to the true owner; 2) where the title to property is obtained by fraud, duress
       or other inequitable means; 3) where a person makes use of some relation of
       influence or confidence to obtain the legal title upon more advantageous terms than
       could otherwise have been obtained; and 4) where a person acquires property with
       notice that another is entitled to its benefits.

Roach v. Renfro, 989 S.W.2d 335, 341 (Tenn. Ct. App. 1998) (quoting Intersparex Leddin KG v. Al-
Haddad, 852 S.W.2d 245, 249 (Tenn. Ct. App. 1992)); see also Myers v. Myers, 891 S.W.2d 216,
219 (Tenn. Ct. App. 1994) (citing Gibson’s Suits in Chancery § 383 (7th ed. 1988); Browder, 602
S.W.2d at 492). Further, with respect to constructive trusts, this Court has stated as follows:

               A constructive trust cannot be imposed against a party who receives property
       in good faith and without notice of an adverse claim. Continental Grain Co. v. First
       National Bank of Memphis, 162 F. Supp. 814, 833 (W.D. Tenn. 1958). A
       constructive trust may only be imposed against one who, by fraud, actual or
       constructive, by duress or abuse of confidence, by commission of wrong, or by any
       form of unconscionable conduct, artifice, concealment or questionable means, has
       obtained an interest in property which he ought not in equity or in good conscience
       retain. Livesay v. Keaton, 611 S.W.2d 581, 584 (Tenn. App. 1980). See also
       Sanders v. Forcum-Lannom, Inc., 225 Tenn. 637, 475 S.W.2d 172, 174 (Tenn. 1972).

Intersparex Leddin KG, 852 S.W.2d at 249. Additionally, as noted above, the Appellees had the
burden of proving, by clear and convincing evidence, the existence of a constructive trust based on
parol evidence. Browder, 602 S.W.2d at 493; see also Story, ___ S.W.3d ___, 2004 Tenn. App.
LEXIS 761, at *47-48.


                                                 -5-
        Finally, we note that this Court has upheld the existence of oral trusts for life insurance
proceeds. Cook v. Cook, 559 S.W.2d 329 (Tenn. Ct. App. 1977) (holding that the proceeds of a life
insurance policy, for which the decedent’s brother was named the beneficiary, was intended to be
held in a trust to pay the settlor’s debts, establish a farming operation for settlor’s stepson, and utilize
the remainder for the settlor’s son, rather than for the benefit of the settlor’s brother under the facts
of the case); see also Thatcher by Van Story v. Wyatt, No. 02A01-9605-CH-00114, 1997 Tenn. App.
LEXIS 332 (Tenn. Ct. App. May 15, 1997) (holding that the proceeds of a life insurance policy,
naming the defendant as the beneficiary, were intended to be held in trust, under the facts and
circumstances of the case, for the benefit of the decedent’s child with the plaintiff and defendant as
co-trustees; the Court further modified the trust by naming the plaintiff the sole trustee).

         The most significant fact for this Court on appeal is that the record lacks a transcript of the
proceedings or a statement of the evidence. In her notice that no transcript or statement of the
evidence would be filed with this Court, Appellant states that this Court only has issues of law before
it. We disagree. As noted previously, this Court has upheld the existence of trusts for life insurance
proceeds even though the policy itself makes no mention of a trust. We see no reason why this
should differ for bank accounts or retirement accounts. The existence of an oral trust is dependent
upon the facts and circumstances of each case, and the Appellees held the burden of proving the
trust’s existence by clear and convincing evidence. In this case, the question of whether an oral trust
exists depends upon the trial court’s findings of fact with regard to the understanding between the
parties and decedent before decedent died as to how these various assets, for which Appellant was
named beneficiary, were to be treated. Additionally, the terms of an oral trust are also dependent
upon the facts and circumstances of each case. In discerning the terms of the oral trust, the trial court
noted the importance of Appellant’s own testimony which, like all other testimony in this case, this
Court does not have the benefit of examining. Therefore, though Appellant questions the
conclusions of the trial court, those conclusions are dependent upon the facts in evidence before the
trial court.

        As stated above, when a trial court decides a case without a jury, its finding of fact are
presumed to be correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d) (2005).
Further, Appellees held the burden, by clear and convincing evidence, to prove a constructive trust
based on parol evidence. Browder, 602 S.W.2d at 493; see also Story, ___ S.W.3d ___, 2004 Tenn.
App. LEXIS 761, at *47-48. Because we cannot review the facts de novo without an appellate record
containing the facts, we must assume that the record, had it been preserved, would have contained
sufficient evidence to support the trial court’s findings of fact and affirm the judgment of the trial
court. Mfrs. Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 864-65 (Tenn. Ct. App. 2000)
(citing Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992); Irvin v. City of Clarksville,
767 S.W.2d 649, 653 (Tenn. Ct. App. 1987)); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992) (citing McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989); Gotten v. Gotten, 748
S.W.2d 430, 432 (Tenn. Ct. App. 1988); Irvin, 767 S.W.2d at 653). Therefore, in the absence of a
transcript of the proceedings or a statement of the evidence, we must affirm the judgment of the trial
court.



                                                    -6-
                                            Conclusion

        For the reasons stated above, we affirm the judgment of the trial court. Costs of this appeal
are taxed to Appellant, Delisa Provost, and her surety for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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