                 IN THE COURT OF APPEALS OF TENNESSEE
                                              FILED
                                             October 18, 1999

                                            Cecil Crowson, Jr.
                                           Appellate Court Clerk
                                        AT KNOXVILLE




IN RE:                                 )
 THE ESTATE OF FRED FILYAW, )                   NO. 03A01-9810-PB-00360
 George Pritchett and Barbara Pritchett,        )
                                                )
       Claimants/Appellants                     )     Appeal As Of Right From The
                                                )     McMINN CO. PROBATE COURT
vs.                                             )
                                                )
HARVEY LUNSFORD, Executor,                      )     HON. JAMES F. WATSON,
                                                )     JUDGE
       Respondent/Appellee.            )




For the Appellants:                                      For the Appellee:
John W. Cleveland                                        Vance L. Baker, Jr.
CLEVELAND & CLEVELAND                                    114 Washington Ave.
120 W. Morris Street                                     P. O. Box 1085
Sweetwater, TN 37874                                     Athens, TN 37371-1085




AFFIRMED                                                                       Swiney, J.




                                           OPINION


               This is an appeal from an Order of the Probate Court of McMinn County which denied

the claim of George and Barbara Pritchett (“Appellants”) against the estate of Fred Filyaw for meals they

provided to the decedent over a period of eight years. The sole issue presented for appeal is whether the




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Probate Court erred in denying Appellants’ claim for reimbursement for meals furnished to Mr. Filyaw

by the Appellants over the eight year period. We affirm the judgment of the Probate Court.

                                           BACKGROUND

                Appellant, George Pritchett, is a nephew of the decedent, Fred Filyaw. In 1985, when

Mr. Filyaw learned that he had diabetes and required a special diet, Appellant, Barbara Pritchett, George

Prittchett’s wife, began preparing meals for him and delivering them to his home. Some time later, Mr.

Filyaw began eating his evening meals at the Appellants’ home. In 1992, Mr. Filyaw had a stroke and

became incapacitated. Appellants instituted conservatorship proceedings, which Mr. Filyaw contested.

The Court ordered a partial conservatorship in January 1993. Mr. Filyaw, being displeased about the

conservatorship, changed his will in April 1993 to remove the Appellants as beneficiaries. The Court

terminated the conservatorship in October 1993, but Mr. Filyaw remained angry at the Appellants for

some time afterward and did not take his meals at their home.

                The relationship between Mr. Filyaw and the Appellants apparently warmed somewhat

as his health deteriorated and he needed more assistance. In 1995, George Pritchett graded Mr.

Filyaw's driveway, and Barbara Pritchett purchased groceries, medical supplies, clothing and pest service

for him. She also paid his phone and electric bills, and prepared meals for him for 14 weeks in 1995

when he was terminally ill. When Mr. Filyaw died in June 1995, he had not reimbursed the Appellants

for these expenses and services. Appellants then discovered that Mr. Filyaw had not provided for

reimbursement by the terms of his will. A will contest suit by the Appellants was unsuccessful.

                Appellants then filed two claims in probate court against the estate: (1) $455.06, for

groceries, medical supplies, clothing and pest service; and (2) "Oral contract with Fred Filyaw”for

$50.00 per week, "two meals daily at my home from the doctor's prescribed diet, laundry service and

groceries for his breakfast," for 26 weeks in 1985, 52 weeks in each of 1986, '87, '88, '89, '90 and '91

and 26 weeks in 1992. The statement also included 14 weeks of service at $50.00 per week in 1995

and "bills paid for Fred also come to a total of $118.67." The total amount of Appellants’ claim was

$19,018.67.


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                The Executor of the Filyaw estate filed exceptions to the Appellants' claims, and a

hearing was held in Probate Court on October 6, 1998. The Appellants provided the testimony of a

number of witnesses to support their claims. As pertinent to this appeal, two neighbors and Barbara

Pritchett’s sister testified that they saw Mr. Filyaw come to the Appellants’ home to eat the evening meal

with them almost daily “from the mid-eighties to the early nineties.” A nurse and a sitter who cared for

Mr. Filyaw during the last few months of his life testified that they observed the Appellants bringing

groceries and preparing food for him. The sitter testified that “when he was in his right mind, he [Mr.

Filyaw] told Barbara that he would pay her . . . for groceries . . . medication . . . and what he owed her

for way back cooking and coming and cleaning up.” Mrs. Pritchett’s sister and another witness, Beulah

Hutsell, also testified that they heard Mr. Filyaw promise to pay Barbara for groceries.

                Barbara Pritchett testified that she expected to receive payment for the groceries and for

cooking his food, but Mr. Filyaw never paid her. She thought she spent about $50.00 a week for the

special foods and to prepare them. Her husband testified that in 1995 he graded Mr. Filyaw's road with

a tractor and drove a nurse to and from Mr. Filyaw's home daily, for which he claimed $372.60 for

grading and mileage.

                The Probate Court found that the Appellants had failed to prove they had any

expectation of being paid during Mr. Filyaw’s lifetime for meals provided to him prior to 1995, but that

they should be reimbursed for certain expenses actually paid, including $455.06 for their itemized first

claim, $700 for 14 weeks of meals prepared in 1995, and $372.66 for grading the driveway in 1995.

The Probate Court found that there was no agreement between the Appellants and Mr. Filyaw to pay

them during his lifetime, but rather only an expectation by Appellants to be beneficiaries of Mr. Filyaw’s

estate.

                                             DISCUSSION

                Appellants state the issue on appeal as whether the Chancellor erred in denying them

reimbursement for decedent's meals from 1985 through 1992, which were not intended as a gift, and for

which decedent knew reimbursement was expected. Appellee states the issues as (1) whether the Trial


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Court properly disallowed testimony about statements Mr. Filyaw may have made about reimbursing

Appellants for his meals, and (2) whether the appeal is frivolous.

                 Our review is de novo upon the record, accompanied by a presumption of the

correctness of the findings of fact of the trial court, unless the preponderance of the evidence is

otherwise. Rule 13(d), T R A P.; Lindsey v. Lindsey, 976 S.W.2d 175, 178 (Tenn. App. 1997).

                 Appellants concede on appeal that their testimony about statements Mr. Filyaw made to

them is barred under T.C.A. § 24-1-203, Dead Man’s Statute. The Probate Court apparently did not

consider that testimony. Appellants insist that their testimony about the cost of groceries and the

testimony of third parties about Mr. Filyaw’s intentions was admissible, since the Dead Man’s Statute

bars testimony, not claims. The Probate Court allowed the testimony of Appellants’ witnesses about Mr.

Filyaw’s habit of eating with his niece and nephew as well as the testimony of what these witnesses heard

Mr. Filyaw say. However, the Trial Court found that testimony unconvincing on the issue of whether the

Appellants expected to be paid by Mr. Filyaw during his lifetime for those meals. Given our ruling, it is

unnecessary to address any further Appellee’s argument concerning the admissibly of Mr. Filyaw’s

statements.

                 Because the trial judge is in a better position to weigh and evaluate the credibility of

witnesses who testify orally, we give great weight to the trial judge's findings on issues involving credibility

of witnesses. In re Estate of Walton v. Young, 950 S.W.2d 956, 59 (Tenn. 1997). Findings that are

related to the issue of credibility will not be disturbed by this Court, absent other concrete evidence to the

contrary which shows that the trial judge erred in his judgment of the veracity of the witnesses. Farmers

& Merchants Bank v. Dyersburg Prod. Credit Ass'n., 728 S.W.2d 10, 18 (Tenn. App. 1986). The

trial judge in this case found that, despite the testimony of the Appellants’ neighbors and family, they had

failed to prove that they expected reimbursement, during Mr. Filyaw’s lifetime, for meals provided over

the eight year period. We find the evidence does not preponderate against the Probate Court’s findings

of fact on this issue.

                 Appellants contend that this case is controlled by the holding of this Court in Estate of


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Cleveland v. Gorden, 837 S.W.2d 68 (Tenn. App. 1992). In that case, Ms. Frances Cleveland of

Nashville became seriously ill in January 1984. A neighbor telephoned her niece, Ms. Jane Gorden, in

Houston, who immediately traveled to Nashville because Ms. Cleveland, then 92-years-old, had no one

else to care for her. Ms. Gorden cared for her aunt for three weeks at her home in Nashville, then

placed her in a nursing home in Shelbyville when it became certain that Ms. Cleveland required skilled

nursing care. Ms. Gorden discussed her aunt's finances with officers at the Third National Bank in

Nashville where Ms. Cleveland maintained her accounts. The bank officers assured Ms. Gorden that she

would be able to obtain full reimbursement for any expenditures she made on her aunt's behalf if she

opened a separate account for that purpose and maintained detailed expense records. Ms. Gorden

followed the recommendations of the bank officials.

                Ms. Cleveland recovered somewhat in the nursing home, and remained there from 1984

until her death in 1989. During all of that time, Ms. Gordon paid her expenses, including the nursing

home bills, medical expenses, utilities for her Nashville house, and occasional small personal sundries.

There was testimony that Ms. Cleveland was aware that Ms. Gorden was using her own money to pay

the nursing home bills and that Ms. Cleveland told a companion that Ms. Gorden "would get everything

she had, if there was anything left." Ms. Cleveland's personal income from social security, rental of her

house, and income from a trust fund, continued to be deposited in her own account. When Ms.

Cleveland died, her 1976 will was probated, and Ms. Gorden received a portion of Ms. Cleveland's

antique furniture. Ms. Cleveland left her house, several items of furniture and a 1932 Ford automobile to

her church, which was also named as the residuary beneficiary of her estate. Ms. Gordon filed a claim

against the estate seeking reimbursement for the $99,741 of her own funds that she had spent on Ms.

Cleveland during her six years in the nursing home.

                The Probate Court of Davidson County denied Ms. Gorden's claim because Ms.

Cleveland had never specifically agreed to reimburse her for expenditures. This Court reversed, finding

that Ms. Cleveland knew that Ms. Gorden expected to be reimbursed for the expenditures she was

making on her behalf. The Court acknowledged the common law presumption that family members'


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services are gratuitous, but explained that the presumption is not conclusive. This presumption can be

rebutted by proof of an express agreement to pay for the services or by proof of circumstances showing

that the relative accepting the benefit of the services knew or should have known that the relative

performing them expected compensation or reimbursement. Cleveland at 71. The Court found that

even though there was no express agreement for Ms. Cleveland to reimburse Ms. Gorden for her

expenditures, Ms. Cleveland knew that Ms. Gorden was supporting her and accepted the support. The

facts in Cleveland showed a clear expectation all along by Ms. Gorden to be reimbursed. No such

expectation is shown in the record now before us.

               In the case now before us, the Probate Court was presented with the Estate of

Cleveland case and discussed its application to the facts of this case at length from the bench. The

Probate Court found:

               Now I have no doubt that when George and Barbara Pritchett were
               taking care of Fred Filyaw from 1985 through 1992, they were doing so
               out of love and affection for Fred Filyaw without any expectations of him
               writing them a check for those services. Because if they had . . .why
               didn’t [they] collect the money from him for services rendered in 1985 or
                ‘86 or ‘87 or ‘88, all those years way back then? And I think the only
               inference the Court can draw is that you didn’t expect him to pay you out
               of his pocket for those services. I think you did expect to benefit from
               those services . . . in his will.

                                                  * * *
               So the Court finds that there was no showing that for any of the services
               rendered to Mr. Filyaw prior to his conservatorship being filed [in
               1993], that there was any expectation to be paid by Mr. Filyaw during
               his lifetime. The expectation was to be a beneficiary of his estate, unlike
               this case in the Estate of Cleveland where there was a clear
               expectation to be reimbursed, a detailed accounting was kept and a
               fairly short term relationship by not a very close family member.

               The facts as presented to this Court in the record support the findings of the Probate

Court. The common law presumption that family members’ services are provided gratuitously to a loved

one, while not conclusive, has not been rebutted here. The proof supports the Probate Court’s

determination that there was no express agreement by Mr. Filyaw to pay for the services provided by

the Appellants, or that Mr. Filyaw knew or should have known that the Appellants expected




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compensation or reimbursement. Particularly telling was the testimony of one of the Appellants’

witnesses that Mr. Filyaw was very tight with his money and was more than willing to take benefits from

any family member he could with no intention of paying that family member for those benefits. From the

facts before us, this appears to be exactly what happened in this case.

                 Additionally, while Appellants’ claims went back only for eight years due the statute of

limitations, Mr. Pritchett testified that he had expected to be reimbursed or paid for services he provided

for Mr. Filyaw as far back as 1948 or 1949. Despite this “expectation” by the Appellants, they never

took any steps to recover any money they claimed they were owed by Mr. Filyaw, even when they had

their falling out with Mr. Filyaw after the conservatorship was filed. The Probate Court found that

Appellants had provided the benefits to Mr. Filyaw from 1985 through 1992 “out of love and affection

for Fred Filyaw without any expectations of him writing them a check for those services.” The facts do

not preponderate against the Probate Court’s finding that Appellants did not expect Mr. Filyaw to pay

them for those services during his lifetime, but instead expected to be beneficiaries of his estate. The

preponderance of the evidence is in favor of the Probate Court’s findings. We affirm the decision of the

Probate Court.

                 Appellee asks this Court to award damages for frivolous appeal. T.C.A. §

27-1-122 provides:

                     When it appears to any reviewing court that the appeal from any
                 court of record was frivolous or taken solely for delay, the court may,
                 either upon motion of a party or of its own motion, award just damages
                 against the appellant, which may include but need not be limited to,
                 costs, interest on the judgment, and expenses incurred by the appellee
                 as a result of the appeal.
[Acts 1975]

                 A frivolous appeal is one devoid of merit, or one where there is little prospect that an

appeal can ever succeed. Industrial Development Board of the City of Tullahoma v. Hancock, 901

S.W.2d 382 (Tenn. 1995). A factual or legal dispute will preclude an award of damages for a frivolous

appeal. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 902 (Tenn. 1984). We find that this




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claim encompassed legitimate disputed issues of fact and law. We decline to award damages for

frivolous appeal.

                                          CONCLUSION

                The judgment of the Probate Court is affirmed and this cause is remanded to the Probate

Court for such further proceedings, if any, as may be required consistent with this Opinion, and for the

collection of the costs below. Costs on appeal are adjudged against the Appellants.




                                               _________________________________________
                                               D. MICHAEL SWINEY, J.




CONCUR:




___________________________________
HOUSTON M. GODDARD, P.J.




___________________________________
HERSCHEL P. FRANKS, J.




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