                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   August 18, 2005 Session

 ESTATE OF ALFRED O. WOODEN, ET AL. v. EVELYN HUNNICUTT, ET
                          AL.

                   Appeal from the Chancery Court for Robertson County
                       No. 17399    Carol A. Catalano, Chancellor



                      No. M2004-01038-COA-R3-CV - October 11, 2005


Testator’s two children, individually and as co-administrators of testator’s estate, brought a suit
against alleged transferee to whom testator purportedly conveyed real property, seeking to set aside
the deed evidencing such transaction on the grounds of forgery. The Chancery Court for Robertson
County, Tennessee, Judge Carol A. Catalano, held that the signature of testator was forged and set
aside the deed. The Court affirms the judgment of the trial court in all respects.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., J.P., M.S.,
and PATRICIA J. COTTRELL, J., joined.

John R. Bradley, Portland, Tennessee, for the appellant, Evelyn Hunnicutt and Volunteer State Bank.

Peter D. Heil, Nashville, Tennessee, for the appellees, Estate of Alfred Odell Wooden, Kelly D.
Wooden and Stacey Stafford, as Co-Administrators of the Estate of Alfred Odell Wooden, and
individually.


                                            OPINION

         On January 19, 2003, Alfred Odell Wooden (“Testator”) died testate, survived by his two
children, Stacey Stafford (“Stafford”) and Kelly Wooden (“Wooden”), and his mother, Evelyn
Hunnicutt (“Hunnicutt”). Hunnicutt was named personal representative of the estate but allowed
Stafford and Wooden to serve in her place, as co-administrators of the estate. Testator’s Will gave
a life estate in certain properties to Hunnicutt, while leaving the remainder of Testator’s real and
personal property to Stafford and Wooden. The present dispute involves the ownership of Testator’s
former home place located on Worsham Springs Road in Greenbrier, Tennessee.
       After Testator’s death, Stafford and Wooden discovered that the Robertson County Trustee’s
Office did not list any property in Testator’s name. They instead found a July 29, 1999, Quitclaim
Deed purporting to transfer the Worsham Springs residence from Testator to Hunnicutt. Appellees
also found that the Worsham Springs residence was encumbered by a deed of trust securing
Volunteer State Bank for a loan made to Hunnicutt. Stafford and Wooden filed a Complaint
individually and as co-administrators of Testator’s estate on March 21, 2003, in the Chancery Court
for Robertson County, Tennessee, against Hunnicutt and Volunteer State Bank for a declaratory
judgment to set aside the deed and for damages.

        Stafford and Wooden claimed that the July 1999 Quitclaim Deed was fraudulent in that the
document contained a forgery of Testator’s signature, and thus, the deed should be set aside and the
Worsham Springs residence should become part of the estate. On June 30, 2003, Hunnicutt filed an
Answer denying Stafford and Wooden any entitlement to relief and asserting that the notarization
on the deed created a presumption of validity and that any discrepancy in Testator’s signature was
a result of Testator’s health problems that affected his hands and his ability to sign his name.

       On March 17, 2004, the Robertson County Chancery Court entered a final Order finding that
although the handwriting expert could not rule with absolute certainty that the deed was not executed
by Testator, clear and convincing evidence established that the deed was a forgery. Hunnicutt filed
a timely notice of appeal.

        Appellant raises three issues on appeal. Hunnicutt contends that the trial court (1) improperly
considered her 1997 pretrial diversion; (2) failed to acknowledge the legal presumption of validity
created when the execution of the deed was acknowledged by a notary public; and, (3) erroneously
found that Appellees established that the Deed was a forgery by clear, cogent, and convincing
evidence. Appellees request damages, claiming that Appellant’s appeal is frivolous.

       Hunnicutt first asserts that the trial court erroneously considered the conduct surrounding her
1997 pretrial diversion on forgery charges, arguing that a pretrial diversion can only be used against
an individual on an extremely limited basis in a subsequent criminal proceeding and is otherwise
inadmissible for any purpose. Tennessee Code Annotated Section 40-15-105(a)(3) states in pertinent
part,

       ...The defendant's statement of the facts relative to the charged offenses shall not be
       admissible as substantive evidence in any civil or criminal proceeding against the defendant
       who made the statement. However, evidence of the statement is admissible as impeachment
       evidence against the defendant who made the statement in any criminal proceeding resulting
       from the termination of the memorandum of understanding pursuant to subsection (d). No
       other confession or admission of the defendant obtained during the pendency of and relative
       to the charges contained in the memorandum of understanding shall be admissible in
       evidence for any purpose, other than cross-examination of the defendant.
Tenn.Code Ann. § 40-15-105(a)(3)



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         The scope of Tennessee Code Annotated Section 40-15-105(a)(3)’s restriction against the
later admissibility of an accused’s confession or admission against interest was discussed at length
by this Court in Pizzillo v. Pizzillo, 884 S.W.2d 749 (Tenn.Ct.App.1994). There, appellant argued
that the restriction applied to all future criminal or civil proceedings concerning the events that gave
rise to the charges covered by the memorandum of understanding. Pizzillo, 884 S.W.2d at 753.
However, appellee asserted that the restriction was limited to later criminal proceedings following
the termination of the memorandum of understanding. Pizzillo, 884 S.W.2d at 753. This Court
reasoned that,
       The language at issue on this appeal appears in the second clause of a compound sentence.
       The conjunctive adverb, "however", separates the two clauses, and thus the second clause is
       subordinate to the first. The subordinate clause functions as an adjectival modifier of the
       noun phrase "testimony, evidence or depositions" appearing in the first clause. The first
       clause provides for the future use of "specified testimony, evidence or depositions;" while
       the second clause creates an exception to the first clause by stating categorically that "no
       confession or admission against interest" shall be admissible. The restriction in the second
       clause must be read in conjunction with the remainder of the statute and, therefore, relates
       only to later criminal trials on the charge itself.

       Tenn.Code Ann. § 40-15-103's legislative history reinforces the statute's grammatical
       construction. The language at issue was added to the bill when it reached the floor of the
       House of Representatives on May 7, 1975. At that time, the bill's sponsor explained that the
       purpose of the amendment was to protect the right of a person who participates in the
       program if the case later goes to trial by providing that admissions cannot be used against
       him if he participates in the voluntary program prior to a trial. See Amendment No. 2, 2
       1975 House Jour. 982-83.

       We find, accordingly, that Tenn.Code Ann. § 40-15-105(a)(3)'s restriction against the later
       use of an accused's confessions or admissions against interest applies only to criminal trials
       involving the same charge contained in the memorandum of understanding. It does not apply
       to later civil proceedings.
Pizzillo, 884 S.W.2d at 753-54.


        In this case, Hunnicutt was asked on direct examination whether she had ever forged a deed.
She replied that she had not. On cross-examination, Hunnicutt agreed that she had been indicted and
placed on pretrial diversion for forging a deed involving her sister. Hunnicutt was then impeached
by the fact that she had lied by stating in her pretrial diversion application that she had never been
convicted of a felony, when in fact, she had felony convictions for conspiracy to engage in gambling
and falsifying her tax returns. When cross-examined about her dishonesty regarding those
convictions, she replied that she had “agreed to be convicted of those charges.”




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        According to the express terms of the statute and the Pizzillo decision interpreting Tennessee
Code Annotated Section 40-15-105(a)(3), Hunnicutt could properly be impeached with the evidence
surrounding the 1997 pretrial diversion because this is a civil, not a criminal matter. In making its
credibility determination, the trial court properly relied on evidence of Hunnicutt’s 1997 pre-trial
diversion stating,

       Has Mrs. Hunnicutt been forthright with the Court today? The Court has to consider her
       credibility. She is the Grantee in [the Quitclaim Deed]. She was asked had she ever forged
       a signature before – a Deed before – and she said she had never. She was asked was she
       indicted for forgery on a deed on her sister, and she said, she would not fight her sister, but
       whatever that allegation was regarding property, the house belonged to her, Mrs. Hunnicutt.
       She admits that as a result of whatever was done on a deed involving her sister and property
       that was in dispute between them, that she, Mrs. Hunnicutt, received pretrial diversion in
       1997. And this Court can certainly consider that. And has to.

        Appellant next argues that because the execution of the deed was acknowledged by a notary
public, there is a legal presumption of validity. Appellant contends that the trial court disregarded
this presumption and instead, erroneously focused on the execution of the deed.

        A notary public’s certificate means a great deal more than the “Good Housekeeping Seal of
Approval.” Beazley v. Turgeon, 772 S.W.2d 53, 59 (Tenn.Ct.App.1989). A notary’s
acknowledgment says to the world that the execution of the instrument was carried out according
to law. Beazley, 772 S.W.2d at 59. And, there is a legal presumption that a notary public notarizing
a deed has acted lawfully. Manis v. Farmers Bank of Sullivan County, 98 S.W.2d 313 (Tenn.1936).
However, a notary public takes an oath of office when a commission is issued or renewed, and in
order to perform as the oath requires, it is necessary for the actor to appear personally before the
notary and to acknowledge that the actor executed the deed of trust. Beazley, 772 S.W.2d at 60.
Furthermore, the presumption that a notary public has performed her duty does not prevail over
contrary proof. Manis, 98 S.W.2d at 314.

       While the acknowledgment of a notary public is the sworn action of a public officer and
unchallenged is a formidable consideration (Manis v. Farmers Bank of Sullivan County, 98 S.W.2d
313 (Tenn.1936); Estate of Acuff v. O’Linger, 56 S.W.3d 527, 531-33 (Tenn.Ct.App.2001)), the
evidence in the case at bar is clear and convincing that the facts stated in the acknowledgment on the
deed are simply not true. As the Supreme Court has held, “This presumption in favor of the
correctness of the statements made by the notary, may be rebutted by the plaintiff in error, who might
show, either that the statements therein were in point of fact untrue.” Caruthers v. Harbert, 45 Tenn.
362, 368 (Tenn.1868).

        The record amply supports the trial court’s finding that the notary failed to conform to the
requirements of her oath and as such, the acknowledgment on the Deed had no effect and any
presumption of validity was removed. The court supported its finding by specifically stating in the
record,


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                That [the Deed] is notarized by anyone is very important. But, it’s even more
        important in this case that the notary is Mrs. Bradley. Mrs. Bradley is not just any
        notary. She is the legal secretary for her son. And [the Deed] says this instrument
        is prepared by John R. Bradley, her son. Now, Mrs. Bradley, has no recollection of
        typing this document itself. She says, though, she has help all the time. But certainly
        she knows the significance of placing her signature on this document as having
        observed it signed. However, as important she knows it is, she does not remember
        that [Testator] was present before her when it was signed. She says because she
        notarized it, if he wasn’t, she would have called him on the telephone. She testified
        she knew his voice; she had done business with him. She would have called him and
        asked him if he had signed this, and if he acknowledged that he had signed it to her,
        then she would have added her name.

                 [The Deed] contains the signature of the Defendant. Likewise, Mrs. Bradley
        testified that she did not remember any of the specific details of Mrs. Hunnicutt
        signing this document. She did say that when this lawsuit that’s being tried today to
        determine whether this Quitclaim Deed is valid came up, the lawsuit came up, that
        she, Mrs. Bradley, was told that [Testator] was in the hospital on July 29th, 1999
        when this Deed was executed and notarized by her. She also said other than having
        been told that [Testator] was in the hospital, after this lawsuit was brought, March
        21st, 2003, she didn’t know [Testator] was in the hospital on that date, July 29th,
        1999.

                Now, you would think that Mrs. Bradley, a legal secretary and a notary and
        someone who knew Mrs. Hunnicutt well, [Testator] well enough to identify his voice
        on the phone, might recall some detail that she took his oath over the phone because
        someone that she knew, particularly the son of a friend of hers, Mrs. Hunnicutt, was
        in the hospital. She has absolutely no recollection.

               Therefore, the Court can’t really find that Mrs. Bradley took the
        acknowledgment of Alfred Odell Wooden over the phone when he was in the
        hospital. She has absolutely no recollection, but for her signature being on this
        document.

         The final issue raised by Appellant concerns the alleged failure of the trial court to find clear,
cogent, and convincing proof that the July 1999 Quitclaim Deed was a forgery. It is well settled that
to set aside a deed on the grounds of fraud, the proof thereof must be clear, cogent, and convincing.
Myers v. Myers, 891 S.W.2d 216 (Tenn.Ct.App.1994); Pugh v. Burton, 25 Tenn.App. 614, 166
S.W.2d 624 (Tenn.Ct.App.1942); Anderson v. Howard, 18 Tenn.App. 169, 74 S.W.2d 387
(Tenn.Ct.App.1934).

       While the mechanics of appellate review under the “clear and convincing evidence” standard
remain a matter of disagreement among the members of this Court (see Estate of Acuff, 56 S.W.3d


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at 534)(perm.app denied Oct 1, 2001) and Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App.2001)
(perm.app. denied July 15, 2002)), such disagreement is of no consequence in the case at bar. Both
Ray and Estate of Acuff recognize that the standard set forth in O’Daniel v. Messier, 905 S.W.2d
182, 188 (Tenn.Ct.App.1995) defines the proper standard. That case holds:

               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).

               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, 905 S.W.2d at 188.

       The trial court determined that clear and convincing evidence established that the July 1999
Quitclaim Deed from Testator to Hunnicutt was a forgery. The evidence clearly and convincingly
supports the action of the Chancellor.

        Mrs. Allen testified that she began living with Testator in October 1997, in order to clean the
house and help Testator stock his vending machines. She testified that during the first part of July
1999, Testator told her that he needed to visit Hunnicutt’s restaurant in order to deliver the Deed to
the Worsham Springs residence. Mrs. Allen claimed that they then proceeded to the restaurant
where Testator gave Hunnicutt an envelope with the signed Deed enclosed and told her to get it
notarized. However, the receipt for the drafting of the Quitclaim Deed by the Bradley Law Firm was
introduced into evidence and it showed that the Deed was not paid for by Hunnicutt until July 29,
1999. Furthermore, the receipt given to Hunnicutt after registering the Deed with the Register of
Deed’s Office was also entered into evidence and it too, was dated July 29, 1999.

        It was also shown that on July 29, 1999, the day the Quitclaim Deed was dated and notarized,
Testator was in NorthCrest hospital in Springfield, Tennessee, and that he had undergone two
surgeries two days before. Stafford and Wooden testified that Testator did not execute any
documents while in the hospital on July 29, 1999, nor did he have any telephone conversations where
he could have spoken with a notary public. Stafford further testified that Hunnicutt visited Testator



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in the hospital and that Hunnicutt had told her that she had fixed it so that Wooden’s wife would not
get anything.

       There were also discrepancies in Hunnicutt’s testimony at trial and in a prior deposition
concerning the delivery of the Deed. The Court noted,

       In [Hunnicutt]’s deposition, she testified that the decedent was at the restaurant on
       the day [the Deed] was signed, July 29th, 1999. Mrs. Hunnicutt also said, at first, she
       did pay for the Deed to be drawn; and then she said, No, she did not pay for this
       Quitclaim Deed to be prepared. That that receipt that Mrs. Bradley says is the receipt
       for this Quitclaim Deed, Exhibit 15, is a receipt for something else that Mrs.
       Hunnicutt must have had the Bradley Law Firm prepared for her. But it’s very
       coincidental that [the Deed] would be [dated] the exact same day that she’s paying
       for it, for the receipt itself is dated July 29th. And we all recall the receipt itself is
       dated July 29th. And we all recall Mr. Alfred Odell Wooden was in NorthCrest
       Hospital in Springfield on July 29th, 1999; that the Bradley Law Firm is in Portland,
       Tennessee. And that there was much going on that day for Mrs. Hunnicutt to have
       gotten all of this done, including having registered the Quitclaim Deed with the
       registrar’s office. All the same day.

        Hunnicutt testified that she did not witness Testator sign the Quitclaim Deed and that the
Deed was given to her at the restaurant already signed but curiously, undated. Hunnicutt testified
that she filled in the date at the Registrar’s Office. The court made the specific observation,

       ...I’m looking at [the Quitclaim Deed], I’m looking at the date filled in, 29, I’m
       looking at the signature of Alfred Odell Wooden, and I would sure like to ask Mr.
       Vastrick if those two writings were not the same? They appear to be the same. Even
       the same pen. Same ink. You know, I’m a pen-and-ink person. And that looks like
       that date was filled in when that signature was put on the Quitclaim Deed. And you
       compare that ink with the ink of Mary Ralph Bradley, and her figures, the 29, and her
       expiration dates on the commission, you compare that ink even with the ink of Mrs.
       Hunnicutt’s, you compare that ink with again Mary Ralph Bradley’s notarization of
       Mrs. Hunnicutt’s signature, and those are – look all the more same than the day and
       the signature of Alfred Odell Wooden. So if Mrs. Hunnicutt put that date there, July
       29th, 1999... It really doesn’t look like it.

        Appellant also presented testimony that Testator may have indicated to others that he
intended to sign over his property to Hunnicutt. Mr. Mayes testified that he lived with Testator until
2001 and that Testator had told him that he signed his property over to his mother for insurance
purposes. Mr. Bolin testified that he assumed that the Worsham Springs residence belonged to
Hunnicutt because Testator told him that he thought his mother should sell the residence and quit
working so hard. Mr. Denson also testified that Testator had told him that he had signed the property
over to Hunnicutt. Mr. Mayes, Mr. Bolin, and Mrs. Allen all further testified that Hunnicutt would


                                                  -7-
pay for repairs to the house. However, none of witnesses could testify as to seeing Testator sign the
Deed.

        There was also evidence presented surrounding the validity of Testator’s signature on the
Quitclaim Deed as well as Testator’s ability to use his hands. Wooden testified that around the time
of the Quitclaim Deed, he was employed by his father in his father’s vending machine business and
his father would make the less complicated repairs on the machines without any difficulty with his
hands. Wooden and Stafford both testified that they were familiar with their father’s handwriting
and that the signature on the Quitclaim Deed is not the signature of their father.

        Appellees also employed the use of a forensic document examiner, Mr. Vastrick, whom the
court noted had quite impressive qualifications, in order to further evaluate the signature on the
Quitclaim Deed. Mr. Vastrick compared the Quitclaim Deed to other documents known to be signed
by Testator and stated that he was unable to associate Testator’s signature on the Quitclaim Deed to
the other documents. He also found distinctive differences between the signature on the Quitclaim
Deed and the other exhibits that were confirmed to be the genuine signature of Testator. He even
found a difference in the skill level of the writer. He could not say beyond a reasonable doubt that
Testator did not sign the Quitclaim Deed, however, he did testify that there were significant
differences, including the skill level used, between the verified signatures and the signature on the
Quitclaim Deed and that was a very strong indicator of non-authorship.

         Dr. Wallstedt, who was Testator’s doctor for five years, further explained that Testator had
diabetes, and peripheral neuropathy, which is when the extremities no longer have feeling. He
explained that the swelling associated with peripheral neuropathy is most typically in the lower
extremities and Testator had mentioned no problems with his hand until December 8, 2000. Dr.
Wallstedt further testified that Testator’s physical condition did not reach a deleterious condition
until after 2000 and perhaps into 2002, long after the time the Quitclaim Deed was allegedly signed.
Even according to the physician’s report, taken on July 27, 1999, prior to Testator’s surgery, doctors
noted no physical disabilities that would have prevented Testator from writing his name.

         However, Appellant presented the testimony of Mr. Bolin, Mr. Denson, and Mrs. Allen, who
all testified that Testator’s hands were swollen and gnarled and for that reason, his signature was not
recognizable by the forensic examiner.

        Plaintiffs have the burden of establishing under a clear, cogent, and convincing evidence
standard that it is highly probable that the Quitclaim Deed in issue is a forgery. However, the trial
judge observes the witnesses face to face, hears their testimony and observes their demeanor on the
stand, and thus the trial judge is the primary instrumentality of justice to determine the weight and
credibility to be given to the testimony of witnesses. Bolin v. State, 405 S.W.2d 768, 771
(Tenn.1966). In the trial forum alone is there human atmosphere, and the totality of the evidence
cannot be reproduced with a written record. Bolin, 405 S.W.2d at 771. The record revealed that
Judge Catalano clearly doubted the veracity of both Mrs. Allen and Hunnicutt’s testimonies, alluding
to the fact that they had quite possibly perjured themselves. We find, based on the foregoing facts


                                                 -8-
and the trial judge’s determination regarding the credibility of the witnesses, that Plaintiffs sustained
their burden of proof that it is “highly probable” that the Quitclaim Deed is a forgery.

        The final issue raised on appeal concerns Appellees request for damages. If it appears that
an appeal is frivolous or is taken solely for the reason of delay, the Court may award damages to the
appellees. Tennessee Code Annotated Section 27-1-122. An appeal is frivolous if it lacks merit or
has no reasonable chance of success. Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn.Ct.App.1998).
The Court does not find that this is an appropriate case to award damages. The judgment of the trial
court is affirmed in all respects. Costs of appeal are assessed against Appellant, Evelyn Hunnicutt.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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