                                                                                                          07/21/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                 Assigned on Briefs July 1, 2020

                             IN RE SALLIE ANN HOFMANN1

                   Appeal from the Chancery Court for Johnson County
                         No. 7294   John C. Rambo, Chancellor


                                  No. E2019-01856-COA-R3-CV



This appeal concerns an action to establish undue influence and violations of the
Tennessee Adult Protection Act, codified at Tennessee Code Annotated section 71-6-120,
et seq.2 The trial court denied the claims submitted by Plaintiff. We affirm.


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


JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S. and W. NEAL MCBRAYER, J., joined.

Debra Christiance, Oneonta, New York, Pro Se.

Steven C. Huret and Robert L. Arrington, Kingsport, Tennessee, for the appellees,
Tawnya Murwin, individually and as a successor trustee of the Sallie Ann Hofmann
Trust, and Craig Murwin.




1
 Mrs. Hofmann’s last name is misspelled throughout the record as Hoffman. The correct spelling of her
name is Hofmann.
2
  “[A]n elderly person or disabled adult in that person’s own right, or by conservator or next friend, shall
have a right of recovery in a civil action for compensatory damages for abuse or neglect, sexual abuse or
exploitation as defined in this part or for theft of such person’s or adult’s money or property whether by
fraud, deceit, coercion or otherwise.”
                                               OPINION

                                          I.   BACKGROUND

       In the years prior to her death, Sallie Ann Hofmann (“Decedent”) experienced a
decline in health as a result of two bouts of cancer. Her daughter and son-in-law, Tawnya
and Craig Murwin (collectively “Defendants”), provided care for her during that time and
lived near her in New York. Mrs. Murwin was appointed as Decedent’s durable power of
attorney in February 2009. At that same time, Decedent established a living trust in her
name, the Sallie Ann Hofmann Trust, naming Mrs. Murwin as the successor trustee.

        Defendants later moved with Decedent to Johnson City, Tennessee in May 2016,
where Defendants purchased a home with Decedent. The home was purchased with a
liquidity access line loan from Decedent’s trust with the understanding that Defendants
were responsible for 50 percent of the purchase, totaling $196,713.52. Defendants lived
in the upstairs portion of the home, while Decedent lived in the downstairs portion.
Decedent died on November 4, 2016.

       Following Decedent’s passing, Defendants procured a loan to repay their portion
of the purchase price for the home to the trust on March 21, 2017. Debra Christiance
(“Plaintiff”) and Thomas Lord3 then filed this action on June 16, 2017, against
Defendants for undue influence and conversion and violations of the Tennessee Adult
Protection Act (“the TAPA”). Plaintiff, along with Mrs. Murwin and other unnamed
persons, are Decedent’s issue and beneficiaries to the trust. Plaintiff and Mr. Lord
alleged4 as follows:

                        Count 1: UNDUE INFLUENCE AND CONVERSION
          1.     Upon information and belief, [Mrs. Murwin] was appointed as
          attorney-in-fact for [Decedent] by virtue of a power of attorney sometime in
          2009.

          2.    [Decedent] subsequently began to decline in health. Consequently,
          so did her mental condition. As [Decedent] deteriorated, [Defendants]
          began to isolate [Decedent] from direct contact with other family members
          and systematically take advantage of [Decedent]. [Defendants] moved
          [Decedent] to Tennessee where no other family members are present.


3
    Mr. Lord is not a party to this appeal.
4
 Plaintiff and Mr. Lord filed their initial complaint on June 16, 2017, and an amended complaint on June
21, 2019.
                                                    -2-
      While in Tennessee, contact was controlled by [Defendants] and access to
      [Decedent], although some visits were granted, was severely diminished.

      3.     [Defendants] began to have access and control over [Decedent’s]
      assets and accounts[.]

      4.    [Defendants] used [Decedent’s] funds to purchase a home for
      themselves [in Tennessee].

      5.    Upon information and belief, [Defendants] also used other funds of
      [Decedent] for their own benefit and use.

      6.     [Plaintiff and Mr. Lord] are remainder beneficiaries of the Sallie
      Ann Hofmann Trust to which all of [Decedent’s] funds were ultimately
      distributed[,] and [Plaintiff and Mr. Lord], as remainder beneficiaries,
      would have standing to assert any claims under the aforementioned causes
      of action.

                COUNT II: ADULT PROTECTION ACT VIOLATION
      7.     Pursuant to [Tennessee Code Annotated section] 71-6-102,
      [Decedent] was an elderly disabled adult who lacked the capacity to
      consent including the ability to perceive, appreciate all relevant facts and to
      reach a rational judgment upon such facts, or to make and carry out
      reasonable decisions concerning [herself or her] resources nor to protect
      herself from neglect or hazardous or abusive situations without assistance.

      8.     [Defendants] were statutorily defined caretakers.

      9.     [Defendants] neglected [Decedent] and/or deprived her of services
      by a caretaker that were necessary to maintain her health and welfare.
      Their negligence inflicted pain and injury upon [Decedent].

      10.    [Defendants’] acts were intentional and solely for their own benefit.

      Defendants denied wrongdoing, claiming that Mrs. Murwin rarely exercised the
powers conferred upon her as Decedent’s power of attorney. They asserted that they
purchased the home with Decedent through an arms-length, good faith agreement,
whereby Decedent agreed to fund 50 percent of the total acquisition cost. They further
denied any allegations that they abused or mistreated Decedent.



                                           -3-
       The case proceeded to a hearing,5 after which the court ruled in favor of
Defendants. In its memorandum opinion, incorporated in the final order, the court
explained its ruling, in pertinent part, as follows:

          Let me start first with [the TAPA]. [Decedent] was a strong-willed
          individual who later in life suffered from two bouts of cancer, the second of
          which caused her death. . . . There was no evidence to indicate that
          [Decedent] was anything but healthy, strong-willed, and independent prior
          to her cancer diagnosis in November of 2009. There was no influence by
          [Mrs. Murwin] to influence the execution of [Decedent’s] Last Will and
          Testament, Power of Attorney, and Trust, all of which she made
          arrangements for and executed on February 12, 2009, and appeared that it’s
          undisputed, or at least in this Court’s mind, it is perfectly clear she was
          operating independently and making her own decisions in February 2009
          and was living independently. . . . During the months of May through
          November 2016 [Decedent] received appropriate medical care. She was
          checked upon [by authorities as a result of complaints made by Plaintiff] to
          the Johnson County Sheriff’s Department and Adult Protection Services.
          Third parties who came to check on her welfare were there at least three
          times; two from Adult Protective Services and one time from the Johnson
          County Sheriff’s Department. There was nothing to be found that was
          amiss. During those months [Decedent] was not isolated from family by
          [Defendants] in any way. [Decedent] could respond to calls if she wanted
          to, and she could initiate calls if she wanted to. She had her own phone.
          She had appropriate living arrangements.

Next, as to the count of undue influence and conversion, the court held, in pertinent part,
as follows:

          The evidence was not persuasive that a Power of Attorney was used by
          [Defendants] to purchase the home. . . . Arrangements regarding financing
          [were] handled with the agreement of [Decedent]. She knew about the
          purchase of the home. She knew the home was going to be purchased
          before she left the State of New York. Even if there was a per se
          confidential relationship, and the law requires not just the execution of the
          Power of Attorney, but the use of it. . . . [Decedent] elected to come to
          Tennessee for two reasons. She preferred care from [Mrs. Murwin] over
          other relatives, [and] she didn’t like the weather particularly in New York[.]
          She was more connected to what became her Tennessee family than she

5
    No transcript or statement of the evidence was provided for this court’s review.
                                                     -4-
       was connected to land and family in the State of New York. The basement
       area, the photographs confirm, was nice and suitable for [Decedent], and it
       was her election to stay there. She knew about the home, helped select the
       home. They looked at many houses together. The home was selected
       because it was handicap accessible. And this is not a case where
       [Decedent] was left in the basement by herself. . . . She was not set in the
       basement and left alone to her own devices. She just was not an isolated
       person in any way. She was an honored person. To the extent [Mrs.
       Murwin] assisted [Decedent] with finances, it was consistent with what
       [Decedent] wanted and the arrangements, which were fair, made between
       them. The evidence was not persuasive in any way that [Decedent] was
       taken advantage of in paying for half of the house in Tennessee.

In consideration of the foregoing, the court dismissed the action against Defendants as
follows:

       Count I for Undue Influence and Conversion in the First Amended
       Complaint for Damages is dismissed with prejudice.

       Count II for Adult Protection Act Violation in the First Amended
       Complaint for Damages is dismissed with prejudice.

This appeal followed the denial of post-trial motions.


                                     II.    ISSUES

        Plaintiff, appearing pro se, did not submit a statement of issues for this court’s
review. Instead, she submitted her summary of various hearings before the court and her
complaints concerning her counsel’s performance during said hearings. She then offered
the following in her conclusion:

       Wherefore, [Plaintiff] respectfully [requests] this Honorable Court find that
       [counsel] did not affectively represent me . . . and at this I would ask the
       court to turn over the lower court decision. By way of hearing testimony at
       the oral argument proceedings of this court of appeal, and reward me full
       reward of what was requested in lower court, or at the very least find in my
       favor and have new hearing.

Defendants offered the following statement of the issues in response:

                                           -5-
        (1)    Whether the trial court erred by finding that [Defendants] neither
        unduly influenced [Decedent], who was trustee of her own living trust
        during her lifetime, nor converted any assets of the living trust.

        (2)    Whether the trial court erred by finding that [Defendants] did not
        violate any provisions of the Tennessee Adult Protection Act.

        (3)    Whether the trial court abused its discretion when it denied
        Plaintiff’s motion to amend judgment and add additional findings of fact.

We restate the issues on appeal from our reading of the appellate briefs as follows:

        (A) Whether dismissal of the appeal is warranted by the untimely filing
        of the brief and deficiencies in the brief itself.

        (B)     Whether reversal of the trial court’s decision is warranted.


                                          III.     ANALYSIS

                                                    A.

       Defendants first request dismissal of the appeal based upon the untimely filing of
the brief. The record in this appeal was filed with the appellate court clerk on February
28, 2020, thereby establishing a filing deadline of March 30, 2020, for the appellate brief
in accordance with Rule 29(a) of the Tennessee Rules of Appellate Procedure.6 Plaintiff,
appearing pro se, filed her brief on May 6, 2020.

       During the pendency of this appeal, our Tennessee Supreme Court issued a
number of orders providing guidance for the court system concerning the continuity of
operations plan amidst the COVID-19 pandemic. One such order, entered on March 25,
2020, provided, in part, as follows:

        Deadlines set forth in court rules, statutes, ordinances, administrative rules,
        or otherwise that are set to expire during the period from Friday, March 13,
        2020, through Tuesday, May 5, 2020, are hereby extended through
        Wednesday, May 6, 2020.



6
  “The appellant shall serve and file a brief within 30 days after the date on which the record is filed with
the clerk.”
                                                     -6-
Another order, entered on March 31, 2020, provided the following clarification
concerning appellate court deadlines:

            The extension through May 6, 2020 does not apply to any deadlines
      set by Tennessee Rules of Appellate Procedure except as set forth in this
      order.

            Any party having an appellate deadline that commenced, was
      running, or expired from March 13 through March 31, 2020, shall have
      until April 30, 2020, to complete the action required, subject to the
      exceptions stated below.

            This extension expressly includes, but is not limited to, the deadlines
      applicable to civil and criminal notices of appeal and applications for
      permission to appeal. This extension shall not serve to shorten any time
      period currently provided under the Rules of Appellate Procedure.

            Appellate courts may grant extensions of any deadlines set forth in
      the Tennessee Rules of Appellate Procedure, including those deadlines not
      subject to extension under Rule 2 of the Tennessee 03/31/2020 Rules of
      Appellate Procedure, while the state of emergency for the Judicial Branch
      remains in place.

Defendants assert that the March 31 order clearly established a filing deadline of April
30, 2020. We agree; however, we decline to dismiss this appeal based upon the untimely
filing of the brief.

        Defendants next assert that the brief was woefully deficient and violative of the
Tennessee Rules of Appellate Procedure. Defendants request waiver of the issues
presented as a result of the state of the brief. We agree that there are a multitude of
problems with the brief and that Plaintiff failed to comply with the minimum
requirements. However, we will briefly address her arguments as pertinent to this appeal
in the event of further appellate review.


                                           B.

      Plaintiff does not suggest that the court erred in dismissing the action because the
evidence submitted was sufficient to establish her claims. Instead, she asks this court to
                                           -7-
reverse the trial court’s decision based upon her counsel’s failure to adequately represent
her and prosecute her claims. She submits a number of documents that were not
considered by the trial court to establish the ineffectiveness of her counsel.

       The jurisdiction of this court is “appellate only.” Tenn. Code Ann. § 16-4-108.
Appellate courts “cannot exercise original jurisdiction” and act as the “trier-of-fact.”
Peck v. Tanner, 181 S.W.3d 262, 265 (Tenn. 2005) (citations omitted); see also Pierce v.
Tharp, 461 S.W.2d 950, 954 (Tenn. 1970) (rejecting appellants’ “novel” request to
adduce proof in support of their motion). We simply cannot consider Plaintiff’s claim of
ineffective assistance of counsel as an original action on appeal.

       In an abundance of caution and to further facilitate appellate review, we likewise
hold that the failure to submit a transcript or statement of the evidence for this court’s
review is fatal to this appeal. “When no transcript or statement of the evidence is
included in the record on appeal, we conclusively presume that the findings of fact made
by the trial court are supported by the evidence and are correct.” In re M.L.D., 182
S.W.3d 890, 894 (Tenn. Ct. App. 2005) (citing J.C. Bradford & Co. v. Martin Constr.
Co., 576 S.W.2d 586, 587 (Tenn. 1979)). Accordingly, we affirm the court’s dismissal of
the action and denial of post-trial motions.


                                 IV.    CONCLUSION

      We affirm the decision of the trial court and remand for such further proceedings
as may be necessary. Costs of the appeal are taxed to the appellant, Debra Christiance.


                                                 _________________________________
                                                 JOHN W. McCLARTY, JUDGE




                                           -8-
