       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                            FILED
                                                              March 16, 2000
CECIL GRAY JACKSON,                 )
                                                            Cecil Crowson, Jr.
                                    )                      Appellate Court Clerk
       Plaintiff/Appellant,         )   Stewart Chancery
                                    )   No. 96-7-221
VS.                                 )
                                    )
CHRISTINE FUTRELL and               )   Appeal No.
TAMMY FUTRELL DUNAWAY,              )   M1999-01046-COA-R3-CV
                                    )
       Defendant/Appellee.          )



      APPEAL FROM THE CHANCERY COURT FOR STEWART COUNTY
                      AT DOVER, TENNESSEE


              THE HONORABLE ALLEN W. WALLACE, JUDGE




Attorney for Plaintiff/Appellant:            Attorney for Defendant/Appellee:

Robert H. Moyer                              Markley Runyon Gill
Sykes, Moyer & Smith                         Erin, Tennessee
Clarksville, Tennessee




                    AFFIRMED AND REMANDED




                                        WILLIAM C. KOCH, JR., JUDGE
                                       OPINION


       This appeal involves a dispute between siblings over real property their father
unexplain edly conveyed to each of them in separate co nveyanc es. After their father’s death,
the son filed suit in the Chancery Court for Stewart County against his sister and niece
seeking to quiet title on the piece of property his father had conveyed to him after he had
already conveye d it to his sister and niece. Following a bench trial, the trial court dismissed
the son’s complaint because he had failed to prove that his sister or niece had committed
fraud or exerted undue influence on their father. The son asserts on this appeal that the trial
court erred by excluding testimony regarding the father’s state of mind and excluding other
testimony based on the clerg y-penitent privilege. W e affirm the judgme nt because this
record provides us no basis for concluding that the trial court co mmitted reversible error.


                                                  I.


       On May 8, 198 7, Theodore Jackson executed a deed conveying a fee simple interest
in all his rea l prope rty to his daugh ter, Christine Futrell, and his granddaughter, Tammy
Futrell Dunaway (then Tammy Futrell), and reserving a life estate for him self. Mses. F utrell
and Dunaway each received a one-half interest in the conveyed property. This deed was
recorded on the sam e day that it was ex ecuted . Approximately five years later, Mr. Jackson
joined Mses. Futrell and Dunaway in a deed conveying the timber rights on six o f the tracts
of property that Mr. Jackson had conveyed to Mses. Futrell and Dunaway in 1987.


       On July 12, 1993, Mr. Jackson executed another deed purporting to convey 62.64
acres of land known as the Odom Farm to his son, Cecil Gray Jackson. This deed was
likewise recorded. Even though the deeds are not entirely clear, all parties now agree that
the property Mr. Jackson conveyed to his son in 1993 was also part of the property he
conveyed to his daughter and granddaughter in 1987.1


       Theodo re Jackson died testate in 1 995. His w ill purported to leave the Odom Farm
to his son even though he had undertaken to convey it to his son in 1993. In 1996, Cecil
Jackson filed suit in the Chancery Court for Stewart County seeking to quiet the title to the


       1
        It is difficult to confirm this from the physical descriptions of the property conveyed in the
deeds of May 8, 1987 and July 12, 1993. However, both deeds purport to convey property originally
conveyed to Theodore Jackson and his wife, Ray Jackson, as recorded in Volume 165, Page 563,
Register’s Office for Stewart County, Tennessee. The first deed appears to convey all of this
property to Mses. Futrell and Dunaway. The second purports to convey “a portion” of it.

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Odom Farm. He alleged that Mses. Fu trell and Dunaway had procured the 1987 conveyance
from Mr. Jackson through fraud and undue influence.


       The trial court heard the evidence without a jury in May 1999. During the trial, the
trial court either limited or excluded the hearsay testimony of various witnesses attempting
to prove that Theod ore Jackson thought he still owned the Odom Farm and that he intended
to give it to his so n. These witnesses included: (1) Gary Hodges, the lawyer who prepared
the 1993 deed purporting to convey the Odom Farm to Cecil Jackson;2 (2) the Reverend Jerry
Moore, Theodore Jackson’s friend and pastor who had introduced M r. Jackson to Mr.
Hodges; 3 (3) Cecil Jackson;4 and (4) several other potential witnesses who were prepared to
recount Mr. Jack son’s stated in tentions rega rding the pr operty. Ce cil Jackson ’s lawyer
decided that it would be pointless to call these witnesses after the trial court determined that
this type of evidence was inadmissible.


       The trial court ruled from the benc h after both parties rested their cases. After
referring to the case as “probably the most paradoxical case I’ve heard in a long time,” the
trial court concluded that Mses. Futrell and Dunaw ay had title to the prope rty because their
deed preceded Mr. Jackson’s. The trial court also d etermined that Mr. Jac kson had failed to
prove that Mses. Futrell and Dunaway had exerted undue influence on Theodore Jackson or
that they had used his power of attorney improperly. In the trial court’s words, “. . . there’s
just not proof in this case to set aside that delivery and first to the courthouse. There’s just
not sufficient proof here. The motion to dismiss is sustained.”




                                                II.


       Mr. Jackson’s appeal involves two evidentiary issues. The first issue relates to the trial
court’s refusal to permit Mr. Jackson to present evidence regarding his father’s state of mind
and intentions regarding the disposition of the Odom Farm. The second issue involves the


       2
         The court sustained an objection to Mr. Hodges’ testimony that when Theodore Jackson was
preparing to execute the 1993 deed he “said he had this farm and that he had promised it to his son,
Cecil, years ago.” When counsel attempted to elicit testimony from Mr. Hodges concerning
whether Theodore Jackson knew he had already transferred the Odom Farm, the court sua sponte
cut off the testimony.
       3
        The court restricted Rev. Moore’s testimony concerning to whom Theodore Jackson said
he intended to give his property.
       4
         Counsel asked Cecil Jackson whether Theodore Jackson “ever express[ed] to [Cecil Jackson]
a plan as to how he wanted those various tracts to go amongst the members of your family?” The
trial court sustained opposing counsel’s objection.


                                               -3-
trial court’s admonition of a witness regarding the law relating to the clergy-penitent
privilege.


                                               A.
                                       S TANDARD OF R EVIEW


       Appellate courts review decisions concerning the admission or exclusion of evidence
using the “abuse of discretio n” stan dard of review .      See D ockery v. Boa rd of Pr of'l
Respon sibility, 937 S.W.2d 863, 866 (Tenn. 19 96); Miller v. Alman Constr. Co., 666 S.W.2d
466, 468 (T enn. C t. App. 1 983). This standard implicitly recognizes the existence of a range
of permissible alternatives. It is intended to be a review constraining concept implying less
intense appellate review and, the refore, le ss likelih ood of reversa l. See BIF v. Service
Constr. Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (No Tenn.
R. Ap p. P. 11 applica tion filed ).


       An erroneous exclusion of evidence requires reversal only if the evidence would have
affected the outcome of the trial h ad it bee n adm itted. See Pan kow v. M itchell, 737 S.W.2d
293, 298 (Ten n. Ct. App . 1987). Re viewing c ourts cannot make this determination without
knowing what the excluded evidence would have been. See Stacker v. Railroad, 106 Tenn.
450, 452, 61 S .W. 766 , 766 (190 1); Davis v. H all, 920 S.W.2d 213, 218 (Tenn. Ct. App.
1995); State v. Pendergrass, 795 S.W.2d 150, 156 (Tenn. Crim. App. 1989). Accordingly,
the party challenging the exclusion of evidence must make an offer of proof to enable the
reviewing court to determine whether the trial court's exclusion of proffered evidence was
reversible error. See Tenn. R . Evid. 103 (a)(2); State v. Goad, 707 S.W.2d 846, 853 (Tenn.
1986); Harwell v. Walton, 820 S.W .2d 116, 11 8 (Tenn. C t. App. 199 1). Appe llate courts w ill
not consider issu es relating to the exclusion of evidence when this tender of proof has not
been made . See Austin v. City of Memphis, 684 S.W.2d 6 24, 628 (Tenn. C t. App. 1984);
Home Ins. Co. v. Glen Falls Ins. Co., 675 S.W.2d 4 86, 488 (Tenn. C t. App. 1984).




       An offer of proo f must con tain the subs tance of the evidence and the sp ecific
evidentiary basis supporting the admission of the evidence. See Tenn. R. Evid. 10 3(a)(2).
These requirements may be satisfied by presenting the actual testimony, by stipulating the
content of the excluded evidence, or by presenting an oral or written summary of the
excluded eviden ce. See Neil P. Coh en, et al. Tennessee Law of Evidence § 103.4, at 20 (3d
ed. 1995). A n offer of pro of is not required when the substance of the evidence is apparent
from the contex t, see Tenn. R. Evid. 103(a)(2), or when the trial court's refusal to allow
further evidence affects the fairness of the procee dings. See First Nat'l Bank & Trust Co. v.

                                               -4-
Hollingsw orth, 931 F.2d 1295, 1305 (8th Cir. 199 1); Blanken ship v. Blan kenship, No.
02A01-9603-CH-00051, 1997 W L 152 41, at *3 (Tenn . Ct. Ap p. Jan. 1 7, 1997) (No Tenn.
R. App. P. 11 ap plication filed).


                                              B.
             E VIDENCE R EGARDING T HEODORE J ACKSON’S S TATE OF M IND


       Mr. Jackson takes issue with the trial court’s decision against permitting him to elicit
testimony regarding his father’s state of mind between 1989 when h e executed his will
leaving the Odom Farm to Mr. Jackson and 1993 when he undertook to convey the Odom
Farm to his so n. We cannot consider this issue on its merits because Mr. Jackson’s lawyer
did not make a tend er of proof regarding w hat Mr. Hod ges, the Reverend M oore, Mr.
Jackson himself, and other w itnesses would hav e testified to had the trial court permitted
them to testify regarding this matter and because the record do es not perm it us to divine what
that testimony might have been.


       Even if Mr. Jackson’s lawyer had m ade a proper tender o f proof, we fail to discern
how evidence regarding Theodore Jackson’s state of mind between 1989 and 1993 w ould
have been relev ant. Theod ore Jackso n convey ed all his real p roperty to M ses. Futrell and
Dunaway in May 1987. By this act, he left him self with no legal or equ itable interest in the
property other than th e life estate he k ept for him self that was reflected in the deed.
Theodore Jackson’s 1993 attempt to convey greater title to the Odom Farm than he had at
the time was of no legal effect, notwithstanding his intentions at the tim e. See Lisenbee v.
Parr, 62 Tenn. App. 518, 525, 465 S.W.2d 361, 365 (1970); Branstetter v. Poynter, 32 Tenn.
App. 189, 199, 222 S.W.2d 214, 218 (1949). Accordingly, the testimony should have been
excluded in accorda nce with T enn. R. Ev id. 401, 402 because it is sim ply irrelevan t.




                                              C.
                            T HE C LERGY-P ENITENT P RIVILEGE


       Mr. Jackson also takes issue with the trial court’s decision to explain the operation of
the clergy-penitent privilege in Tenn. Code Ann. § 24-1-206 (Supp. 1999) to the Reverend
Moore. Essentially, he contends that the trial court abdicated its role as arbiter of whether
clergy-penitent privilege ap plied by lea ving it up to the R everend M oore to decide whether
to answer the que stions posed to him. M oreover, Mr. Jackson intimates that the trial court
imprope rly intimidated the Reverend Moore into silence b y explainin g to him the operation
of Tenn. Code Ann. § 24-1-206.

                                             -5-
       Mr. Jackson’s lawyer asked the Reverend Moore whether Theodore Jackson ever
confided in him about his relationship with his children. Recognizing that the Reverend
Moore was Theod ore Jackson’s close personal friend a s well as his pastor, the trial court
explained the substance of Tenn. Code Ann. § 24-1-206 to the Reverend Moore and asked
him whether he could distinguish information he received from Mr. Jackson as a friend from
information Mr. Jackson imparted to the Reverend Moore because he was his pastor. The
Reverend Moore replied that it w ould be ha rd for him to differentiate between information
he received as a pastor and information he received as a friend because he “was always
Pappy’s friend, but I think that I was always Pappy’s pastor also.” Mr. Jackson’s lawyer
moved on to other matters after the Reverend Moore stated that he would prefer not to
answer questions on what Theodore Jackson had confided to him regarding his children.


       The purpose of an evidentiary privilege is to protect certain types of communications
from disclosure. These communications generally include confidential communications
between individuals whose relationship is found to have su ch social sign ificance that its
protection is more important than the information the privilege keeps from the trier of fact.
See Neil P. C ohen, Tennessee Law of Evidence § 501.3, at 261 (3d ed. 1995). By enacting
Tenn. Code An n. § 24-1-206, the G eneral Assem bly has determ ined that communications
between individuals and their clergy merit protection from disclosure.


       Communications between an individual and a member of the clergy are privileged
even if the member of the clergy is bo th the individual’s minister and close personal friend.
See State v. Boling, 806 S.W .2d 202, 20 4 (Tenn. A pp. 1990 ). Mr. Jacks on’s attorne y did not
press the matter after the Reverend M oore stated that he would prefer not to testify regarding
the substance of his conversations with Theodore Jackson about his children. H ad Mr.
Jackson’s lawyer insisted on questio ning the Reverend Moore, the trial court would have
been well advised to obtain more detail from the Reverend Moore regarding the
circumstances in whic h these comm unicatio ns occu rred. H owev er, Mr . Jackson’s lawyer d id
not press the matter, and the Reverend Moore’s testimony makes it clear that he perceived
himself to be God’s representative during all his dealings with Theodore Jackson.
Accordingly, we find no reversible error regarding the trial court’s handling of the clergy-
penitent issue.


                                              III.


       We affirm the judgme nt dismissing M r. Jackson’s complaint and remand the case to
the trial court for whatever further proceedings may be required. We tax the costs of this
appeal to Cecil Gray Jackson and his surety for which execution, if necessary, may issue.

                                             -6-
                                         ______________________________
                                         WILLIAM C. KOCH, JR., JUDGE


CONCUR:


________________________________
BEN H. CA NTR ELL ,
PRESIDING JUDGE, M.S.



________________________________
PATRICIA J. COTTRELL, JUDGE




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