                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       April 9, 2013 Session

                     IN RE ESTATE OF MITTIE T. ALEXANDER

                    Appeal from the Probate Court for Davidson County
                      No. 09P1052     David Randall Kennedy, Judge


                     No. M2012-01901-COA-R3-CV - Filed June 5, 2013


Conservator filed suit to rescind a pre-conservatorship conveyance of real property by ward
to her niece. The jury found in favor of niece and the trial court entered judgment on the jury
verdict. Conservator appeals, arguing that the trial court erred in limiting the testimony of
her expert witness. Discerning no error, we affirm.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and F RANK G. C LEMENT, J R., J., joined.

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Teresa Alexander.

Dan R. Alexander and Susan Bratton Evans, Nashville, Tennessee, for the appellee, Starlene
Anderson.

                                               OPINION

                            F ACTUAL AND P ROCEDURAL B ACKGROUND

       This appeal arises from an action to rescind the conveyance of an interest in real
property.1 In July 2009, plaintiff Teresa Alexander (“Ms. Alexander”) filed a petition for




        1
          Our factual summary is partially a duplication of the undisputed background facts set forth in our
opinion issued from the previous appeal in this case. See Alexander v. JB Partners, 380 S.W.3d 772 (Tenn.
Ct. App. 2011).
conservatorship of her Mother, Mittie T. Alexander (“Miss Mittie”).2 In her petition, Ms.
Alexander alleged that Miss Mittie suffered from dementia and that she had made financial
decisions over the preceding two years that were ill-advised and had affected her financial
well-being. Ms. Alexander alleged that those decisions resulted from mental incapacity. She
specifically asserted that Miss Mittie transferred her interest in real property in Nashville
without consideration, and that the transaction was unfair and “could not have been
intentional.” The court appointed Ms. Alexander as Miss Mittie’s conservator on September
11, 2009.

        On September 18, 2009, Ms. Alexander filed the present action on Miss Mittie’s
behalf against Starlene Anderson (“Ms. Anderson”), who is Ms. Alexander’s cousin and
Miss Mittie’s niece. In her complaint alleging fraud, fraud in the inducement, and seeking
rescission, Ms. Alexander asserted that Miss Mittie, while legally blind and mentally
incompetent, transferred her property interest to Ms. Anderson without consideration on
April 22, 2008. She alternatively asserted that Miss Mittie did not understand the transaction
and that she entered into it by mistake. In her amended complaint adding a claim for breach
of contract and an equitable action for rescission, Ms. Alexander alleged that Ms. Anderson
attempted to “steal” the property from Miss Mittie, and that she told Miss Mittie that she
“would pay her for the property.” Attached to the complaint was a warranty deed by which
Miss Mittie conveyed the property to Ms. Anderson for $10.00 consideration, but retained
a life-estate.3

       In her answers, Ms. Anderson denied Ms. Alexander’s claims and averred that Miss
Mittie met privately with her attorney prior to the conveyance, that Miss Mittie’s attorney
drafted the deed out of Ms. Anderson’s presence, that Miss Mittie was competent when she
conveyed the property, that Miss Mittie “desired to have [Ms. Anderson] reoccupy the
abandoned property,” and that Ms. Anderson made over $15,000 of improvements to the
property.

       On January 11, 2012, Ms. Alexander filed a motion for partial summary judgment on
the breach of contract claim. By order entered February 27, 2012, the trial court denied the
motion, finding “that there are genuine issues of material fact in dispute.”

        The case proceeded to a jury trial held on May 7 and May 8, 2012. During trial, the


       2
         Consistent with our prior opinion, we will refer to Mittie T. Alexander as Miss Mittie. We mean
no disrespect.
       3
           The second page of the April 22, 2008 warranty deed includes Ms. Anderson’s signed, notarized
affidavit in which she crossed out $10.00 and substituted $50.00 as the amount of the consideration.

                                                  -2-
court limited the testimony of Ms. Alexander’s expert, Dr. David Turner, and did not qualify
him as an expert in dementia. The jury entered a verdict in Ms. Anderson’s favor finding,
as relevant to this appeal, that Miss Mittie did not lack the capacity to transfer the property
to Ms. Anderson at the time she signed the warranty deed on April 22, 2008, that there was
a contract between Ms. Anderson and Miss Mittie, and that Ms. Anderson did not breach the
contract. On May 21, 2012, the trial court entered judgment on the jury verdict.

       After Miss Mittie’s death in June 2012, the estate was substituted in her place as a
party in the case.

       By order entered July 27, 2012, the trial court denied Ms. Alexander’s motion for new
trial and, pursuant to Tenn. R. Civ. P. 54.04, granted Ms. Anderson’s motion for
discretionary costs, awarding her a $2,839 judgment against the conservatorship.

        Ms. Alexander filed her notice of appeal on behalf of the estate on August 24, 2012.
Ms. Anderson then moved the court to set a bond for special damages pending appeal,
asserting that “[she] is damaged by the appeal in that the judgment involves title to real
property and a pending valid executory contract4 for sale of the real property.” By amended
order entered September 28, 2012, the trial court granted the motion, finding “that the appeal
has placed a cloud on the title and that Starlene Anderson is unable to sell the real property
and is suffering damages for the delay.” The court further found that a $7,713.29 cash bond,
which includes $5,000 for loss of use of the property’s sale proceeds and $2,713.29 for 2012
property taxes, would be “sufficient to cover any expected damages due to the delay in
closing on the contract.”

                                                 ISSUES

       Ms. Alexander raises the following issues for our review: (1) Whether the trial court
abused its discretion in failing to accept Dr. David Turner as an expert on dementia; (2)
Whether the trial court erred in denying the motion for partial summary judgment; (3)
Whether the trial court erred in awarding discretionary costs to Ms. Anderson; and (4)
Whether the trial court erred in setting a bond for special damages. In the posture of
appellee, Ms. Anderson asks us to consider whether this appeal is frivolous.

                                               A NALYSIS


        4
           As discussed in this Court’s previous opinion, before this lawsuit and before Ms. Alexander was
Miss Mittie’s conservator, Ms. Anderson entered into a contract with Mr. Bryan Church for the sale of her
interest in the property. Mr. Church paid earnest money. Mr. Church then assigned his interest to JB
Partners. See Alexander v. JB Partners, 380 S.W.3d at 777, 779.

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                                           I. Expert Testimony

       We first address Ms. Alexander’s argument that the trial court erred in limiting her
expert witness’s testimony and in not qualifying him as an expert on dementia.

       Trial courts have broad discretion on decisions regarding the admissibility or
competency of expert testimony. State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2009). A trial
court’s decisions regarding the admission or exclusion of evidence are reviewed under an
abuse of discretion standard. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn.
2005); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004). Under this
standard, we are required to uphold the trial court’s ruling “as long as reasonable minds could
disagree about its correctness.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App.
2007). So, “we are not permitted to substitute our judgment for that of the trial court.” Id.
As to the admissibility of expert testimony, “[a]n expert witness may testify if his or her
‘scientific, technical, or other specialized knowledge will substantially assist the trier of fact
to understand the evidence or to determine a fact in issue.’” Scott, 275 S.W.3d at 404
(quoting Tenn. R. Evid. 702).

        The critical issue at trial was Miss Mittie’s competency on April 22, 2008, the date
she executed the deed to Ms. Anderson. Specifically, Ms. Alexander sought to prove that
Miss Mittie was suffering from vascular dementia at the time she conveyed the property to
Ms. Anderson.5 In support of this theory, Ms. Alexander called Dr. David Turner, a family
practice physician who first saw Miss Mittie on September 27, 2011, more than three years
after the conveyance.

       Dr. Turner testified that he is a medical doctor who has been licensed in Tennessee
for seventeen years and that, over the preceding five years, he treated and diagnosed about
twenty patients suffering from Alzheimer’s Disease or from dementia. He noted that he
regularly attended conferences to further his education. During voir dire, when questioned
by Ms. Anderson’s attorney as to the extent of his expertise in dementia, Dr. Turner
explained:

        Q. Okay and do you hold yourself out as having any expertise in the area of

        5
          It is undisputed that Miss Mittie was not actually diagnosed with vascular dementia until March
18, 2009. Dr. Eric Thomassee, one of Miss Mittie’s treating physicians at the time, testified in his deposition
that, during Miss Mittie’s March 18, 2009 appointment, Ms. Alexander expressed concerns to him about
Miss Mittie’s memory and mental capacity, informed him of a “recent” conveyance to Ms. Anderson and the
resulting lawsuit, and requested memory testing for Miss Mittie. Based upon her Mini Mental Exam score
and her medical history, Dr. Thomassee diagnosed Miss Mittie with vascular dementia. Dr. Thomassee’s
deposition testimony was entered as an exhibit at trial.

                                                     -4-
       mental competence, dementia, or Alzheimer’s?
       A. I hold myself out as an expert in Family Medicine and Family Practice -
       Q. And General Practice -
       A. - of which the assessment of competence, mental disease, depression,
       anxiety, from lacerations to broken bones are within the realm of expertise.
       Q. And in the area of seeing someone who had dementia or Alzheimer’s would
       be in the context of them coming into your Family Practice and you
       discovering they had that; is that correct?
       A. That’s correct.
       Q. Normally, a patient wouldn’t go to you specifically, as an expert on the area
       of Alzheimer’s or mental competence?
       A. No, because the Family Practice, as a generalist, we tend to pick up these
       things earlier and we generally make the diagnosis and initiate the treatment
       and follow those patients.
       Q. Now, if a patient in the Middle Tennessee area needed some expert care in
       the area of Alzheimer’s or dementia, where would they go? Are there facilities
       here where there is expertise?
       A. Generally, Neurologic Specialties will often provide some further help with
       dementia patients.
       ...
       Q. And you haven’t listed, since you’ve been practicing all those years, you
       haven’t listed anything in [your CV] to show that you have any particular
       training or specialty training in the area of dementia, mental competency or
       Alzheimer’s, have you, Doctor?
       A. No, but that’s part of what we do on a daily basis.

       The trial court followed by asking Dr. Turner about the distinction between dementia
and Alzheimer’s Disease and about what diagnostic procedures he uses to determine whether
an individual suffers from dementia. Following voir dire, the trial court ruled that it would
not qualify Dr. Turner as an expert on dementia, but offered Ms. Alexander an opportunity
to develop the testimony regarding Miss Mittie’s capacity and competency:

       The Court: Well, what I’m going to allow you to do, Mr. Preston [Ms.
       Alexander’s attorney], is this. As I said earlier, I think Dr. Turner has been
       qualified as a licensed medical doctor in the State of Tennessee. He’s also a
       treating physician for Miss Mittie Alexander. He has testified that he has
       treated approximately 20 patients over the course of the last five years. Prior
       to that he was an emergency room physician for some 20 years. The Court has
       received no information that would suggest to the Court that he is an expert in
       neurology or in the diagnosis of Alzheimer’s or dementia, notwithstanding the

                                             -5-
       fact that the Court has concluded that he does have the requisite expertise to
       give an opinion regarding her capacity and her competency from and after the
       date of his initial treatment. Now, if questions are asked of him about her
       capacity or competency previous to September 27, 2011, which is his date of
       first treatment, if the events are not so remote as to make them speculation
       then the Court will entertain those questions. But I also have to listen and see
       whether there are any objections to that. And if you follow me there, Mr.
       Preston -
       Mr. Preston: I do, Your Honor.
       The Court: - we’ll let you develop your testimony and we’ll see how far back -
       if a proper foundation is presented for [Dr. Turner] to go back prior to
       September 27, 2011 we’ll deal with that as you do. All right?
       Mr. Preston: Okay.
       The Court: And just to say for your benefit, Mr. Alexander [Ms. Anderson’s
       attorney], your objection for all matters prior to September 27, 2011 is held in
       abeyance, the ruling on that is, until he asks the question since I think that is
       premature.

(Emphasis added).

        On direct examination, Dr. Turner presented to the trial court and the jury a detailed
explanation of the definition, symptoms, causes, and consequences (such as “loss of short
term memory” and “increasing confusion”) of vascular dementia, while emphasizing that
“[i]t’s a gradual, progressive disease.” As to diagnosing Miss Mittie with vascular dementia
upon examining her on September 27, 2011, Dr. Turner testified:

       Q. What did you use to make your determination or your evaluation as to [Miss
       Mittie’s] condition?
       A. The first was I reviewed information from her daughter, [Ms. Alexander].
       Families help us every day in discussing what’s going on with these patients.
       I then also based it on my examinations. I based it on - there was also - I read
       a deposition of Dr. Thomassee and there’s some information from him about
       the diagnosis of vascular dementia. And I also reviewed [Miss Mittie’s]
       deposition that was taken in 2010.
       ...
       Q. And [Dr. Thomassee] determined that she had vascular dementia?
       A. Yes.




                                              -6-
        Q. And are you referring to a report6 that was used by this Court to establish
        the conservatorship over [Miss Mittie]?
        A. I believe that’s the same document.
        Q. Do you disagree with his findings?
        A. No, I do not.

       Despite the trial court’s giving her the green light to do so, during direct and re-direct
examination, Ms. Alexander did not question Dr. Turner on his opinion about Miss Mittie’s
capacity or competency on the day she executed the deed to Ms. Anderson. As the trial court
noted outside the jury’s presence, Ms. Alexander “didn’t ask [Dr. Turner] a single question
about anything prior to the date that he saw [Miss Mittie]” or otherwise develop the proof on
what she refers to on appeal as “the most salient issue in her case.” Nevertheless, the trial
court allowed Ms. Alexander to make an offer of proof. By failing to introduce her expert’s
testimony to the extent the trial court permitted, Ms. Alexander “failed to take whatever
action was reasonably available to prevent or nullify the harmful effect” of the error she
alleges on appeal. Tenn. R. App. P. 36(a). The trial court’s decision not to qualify Dr.
Turner as an expert on dementia does not amount to an abuse of discretion.

                                  II. Partial Summary Judgment

       Ms. Alexander argues that the trial court erred in denying her motion for partial
summary judgment on her breach of contract claim because the undisputed facts show that
Miss Mittie and Ms. Anderson “entered into a contract, notwithstanding the fact that [Miss
Mittie’s] competency at the time is at issue, which required [Ms.] Anderson to pay a certain
amount of consideration for the property” and that Ms. Anderson did not pay the
consideration. Ms. Anderson argues that there “were disputed facts as to what the
agreement, if any, was between [them].” We agree with Ms. Anderson.

        A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Blair
v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary judgment
decision as a question of law. Blair, 130 S.W.3d at 763. Accordingly, we must review the
record de novo and make a fresh determination of whether any genuine issue of material fact
exists and whether the moving party is entitled to judgment as a matter of law. Tenn. R. Civ.
P. 56.04; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall, 847
S.W.2d 208, 214 (Tenn. 1993).


       6
          Dr. Thomassee’s report, made March 18, 2009, indicated that Miss Mittie had “cognitive
impairment resulting from vascular dementia” and a “poor” mental condition. It seems that this report was
entered as an exhibit at trial along with Dr. Thomassee’s deposition testimony.

                                                  -7-
        The moving party has the ultimate burden of persuading the court that “there are no
disputed, material facts creating a genuine issue for trial . . . and that he is entitled to
judgment as a matter of law.” Byrd, 847 S.W.2d at 215. If the moving party makes a
properly supported motion, the burden of production then shifts to the nonmoving party to
show that a genuine issue of material fact exists. Id. To shift the burden of production to the
nonmoving party who bears the burden of proof at trial, the moving party must either: “(1)
affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that
the nonmoving party cannot prove an essential element of the claim at trial.” Hannan, 270
S.W.3d at 8-9.7 It is not enough for the moving party to “merely point to omissions in the
nonmoving party’s proof and allege that the nonmoving party cannot prove the element at
trial.” Id. at 10. “Similarily, the presentation of evidence that raises doubts about the
nonmoving party’s ability to prove his or her claim is also insufficient.” Martin, 271 S.W.3d
at 84. If the moving party fails to satisfy its initial burden of production, the court should
dismiss the motion for summary judgment. Hannan, 270 S.W.3d at 5.

        We consider the evidence presented in support of and in opposition to a motion for
summary judgment in the light most favorable to the nonmoving party, resolve all inferences
in that party’s favor, and discard all countervailing evidence. Godfrey v. Ruiz, 90 S.W.3d
692, 695 (Tenn. 2002); Byrd, 847 S.W.2d at 210-11. The “grant of summary judgment is
appropriate only when the facts and the reasonable inferences from those facts would permit
a reasonable person to reach only one conclusion.” Sykes v. Chattanooga Hous. Auth., 343
S.W.3d 18, 26 (Tenn. 2011) (quoting Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364
(Tenn. 2009)).

         The record before us does not contain a transcript of the hearing on the motion for
partial summary judgment, however, the conflicting affidavits and deposition testimony
indicate disputed, material facts that created genuine issues for trial. For example, in an
affidavit made April 8, 2010 regarding the April 22, 2008 deed, Ms. Anderson swore that
Miss Mittie “never asked for any payment, but [she] would have and will pay the
consideration she has indicated she now thinks she is entitled to.” In her March 10, 2010
deposition, Miss Mittie testified that Ms. Anderson told her she was going to pay her $400
or $500 for the property, but later in the same deposition testified, “I was thinking I was
going to get $8000 or $9000, besides letting them move in on the house.” Miss Mittie further
testified that she had an understanding about payment for the property with her sister, Tiny,
not with Ms. Anderson. In another affidavit made February 6, 2012, Ms. Anderson swore


        7
          Tennessee Code Annotated § 20-16-101 (2011), a provision that is intended to replace the summary
judgment standard adopted in Hannan, is inapplicable to this case. See Sykes v. Chattanooga Hous. Auth.,
343 S.W.3d 18, 25 n.2 (Tenn. 2011) (noting that section 20-16-101 is only applicable to actions filed on or
after July 1, 2011).

                                                   -8-
that she “never had an agreement, understanding or contract with [Miss Mittie] to pay her
anything for the real property,” that Miss Mittie “made all the arrangements, made the
appointment with her attorney, Susan Melton, and sought out her own Notary Public to
notarize her signature.” Ms. Anderson further asserted that the property was a “gift” to her
from Miss Mittie so that they could live near each other, and that she made improvements
to and paid taxes on the real property that were worth much more than the consideration cited
in the April 22, 2008 deed.

        In this case, resolving the disputes about Ms. Alexander’s breach of contract claim
was a task for the jury. We affirm the trial court’s denial of Ms. Alexander’s motion for
partial summary judgment.

                                  III. Discretionary Costs

       Upon Ms. Anderson’s motion, the trial court awarded her $2,839 in discretionary
costs. Ms. Alexander summarily requests that we reverse this award.

        Tennessee Rule of Civil Procedure 54.04 allows a trial court to award discretionary
costs to a prevailing party. Tenn. R. Civ. P. 54.04; Fannon v. City of LaFollette, 329 S.W.3d
418, 433-34 (Tenn. 2010). These costs may include reasonable and necessary court reporter
expenses and expert witness fees for depositions or trials. Tenn. R. Civ. P. 54.04(2). Ms.
Anderson’s motion included an itemized list of costs that are recoverable under the rule and
a certification that the costs were reasonable and necessary to prepare and try the case and
that the services charged for were actually performed.

       Appellate courts generally will not alter a trial court’s ruling with respect to costs
absent a clear abuse of discretion. Placencia v. Placencia, 3 S.W.3d 497, 503 (Tenn. Ct.
App. 1999). Ms. Alexander does not argue, and our review does not reveal, that the trial
court abused its discretion in awarding costs to Ms. Anderson, the prevailing party.
Therefore, we affirm the trial court’s ruling with respect to this matter.

                      IV. Bond for Special Damages Pending Appeal

       After the jury found in her favor, Ms. Anderson was vested with a remainder interest
in the property which then became a fee simple interest upon Miss Mittie’s death.
Anticipating appeal, Ms. Anderson moved the trial court to set a bond that would protect her
from damages that she would incur because of her inability to convey marketable title to the
property pursuant to her pending executory contract with JB partners. Ms. Anderson
supported her motion with her own affidavit and that of an attorney and agent from the title
company that was to handle closing. The trial court set a $7,713.29 bond and found “that the

                                             -9-
appeal has placed a cloud on the title and that Starlene Anderson is unable to sell the real
property and is suffering damages for the delay.”

      On appeal, Ms. Alexander did not brief or offer any argument on this issue, so we
consider it waived. See Tenn. R. App. P. 27; Brinton v. Brinton, No. M2009-02215-COA-
R3-CV, 2010 WL 2025473, at *5 (Tenn. Ct. App. May 19, 2010); In re Estate of Espey, 729
S.W.2d 99, 103 (Tenn. Ct. App. 1986); Painter v. Toyo Kogyo of Japan, 682 S.W.2d 944,
951 (Tenn. Ct. App. 1984).

                                     V. Frivolous Appeal

       Lastly, we consider Ms. Anderson’s request for damages for a frivolous appeal.
“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 . . . 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.” Tenn. Code Ann. § 27-1-122.
An appeal is considered frivolous when it appears the appellant had no reasonable chance
of success. Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920, 922 (Tenn. 1979). Applying
our discretion, we decline Ms. Anderson’s request.

                                        C ONCLUSION

       For the foregoing reasons, we affirm the trial court in all respects. Costs of appeal are
assessed against the appellant, Teresa Alexander, and execution may issue if necessary.




                                                        ______________________________
                                                             ANDY D. BENNETT, JUDGE




                                              -10-
