                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 11, 2001 Session



        MARILYN WILLOCKS JEFFRIES v. IRENE GAMBLE,                                    ET AL.

                     Appeal from the Chancery Court for Blount County
                     No. 99-137   O. Duane Slone, Judge, by Interchange


                                    FILED AUGUST 6, 2001

                                 No. E-2000-03120-COA-R3-CV




After purchasing approximately 30 acres of land from Defendant, Plaintiff later discovered that the
deed had been incorrectly drafted. Plaintiff brought suit seeking to have the deed reformed. The
Trial Court held that Plaintiff had proven by clear and convincing evidence that the parties had
intended for a .61 acre tract of land to be part of the property sold to Plaintiff and the deed should,
therefore, be reformed to include this additional land. Defendants appeal. We affirm.



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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, J., joined.
HOUSTON M. GODDARD, P.J., not participating.


David R. Duggan, Maryville, Tennessee for the Appellants Irene Gamble and Roma Lois Gamble.


Chris Ralls, Maryville, Tennessee for the Appellee Marilyn Willocks Jeffries.
                                                      OPINION

                                                    Background

                Plaintiff Marilyn Willocks Jeffries (“Jeffries”) purchased a tract of land from
Defendant Irene Gamble (“Gamble”)1 consisting of approximately thirty acres located in Blount
County. Jeffries alleges that she later discovered that the warranty deed omitted an approximate .61
acre tract (“Tract”) of land which was intended to be part of her purchase. Jeffries asserted that since
obtaining the property in 1995, she exercised dominion and control over the Tract and it was the
parties’ intention for the Tract to be included in the land she bought. Jeffries alleged in her
Complaint that there was a mutual mistake made by the parties, and she, therefore, was entitled to
reformation of the deed. Jeffries tendered to the Trial Court the sum of $3,660.00, which she
claimed was the agreed upon value of the Tract at the time the property originally was purchased.

                Gamble essentially denied that she intended to sell the Tract to Jeffries or that there
was a mutual mistake. Gamble filed a counter-claim asking the Trial Court to eject Jeffries from the
Tract and to restore possession to Gamble. Gamble also requested that the property be returned to
her in the same condition as it was in at the time Jeffries wrongfully asserted dominion and control
over the Tract.

                 Jeffries testified that she purchased the property from Gamble because she wanted
to return to the community where she had grown up and most of her family still resided. Jeffries
stated that she and Gamble agreed on a purchase price of $6,000.00 per acre for the land. Jeffries
stated that as three sides of the property purchased were fenced in, she discussed with Gamble the
boundary for the remaining side. According to Jeffries, she and Gamble agreed that the boundary
would be by a persimmon tree. Jeffries admitted that Gamble and her son did not want to sell a barn
located near the Tract and that they wanted to keep some distance from the property being sold and
a house occupied by Gamble’s granddaughter. Once it was agreed that Jeffries would not be
purchasing the barn, she claims they quickly agreed on what would be the boundary line. After the
survey was conducted, an iron pin and a flag were set into the property showing the boundary line.
The location of the iron pin and flag is consistent with Jeffries’ claim as to where it was agreed the
property boundary would be. The iron pin and flag were set by the surveyor, Tony Abbott
(“Abbott”) and his son. Jeffries stated that with the exception of the barn, she was buying the whole
field. Abbott prepared the plat which was recorded in the Blount County Register of Deeds Office.
This plat was used by the attorney who prepared the deed.

               Jeffries first learned there was a problem with the deed when she wanted to build a
barn on the Tract. Although she was unable to locate the iron pin, Jeffries knew where the property
line was and had the footers for the barn set accordingly. Abbott came to the property with a metal

         1
            The land was actually purchased from Irene Gamble and Roma Lois Gamble, both of whom are defen dants
in the action. Ms. Roma Gamble was in poor health an d did not participate in a material manner at trial. For this reason,
we will o mit any further refe rence to D efendan t Roma Gam ble.

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detector and could not locate the pin either. Jeffries then asked Abbott to re-survey the property
because her son was purchasing some of her property, and it was going to be divided. This is when
she learned there had been a mistake in the drafting of the plat and deed which did not show the
Tract as being part of the property she had purchased. Abbott told her he had inadvertently
decreased the amount of property she had bought through an error in setting the appropriate
boundary line, that it was his fault, and he “apologized profusely.” When Jeffries tried to explain
the situation to Gamble, Gamble told her she was too ill to discuss it and Jeffries needed to discuss
the situation with her son, Roy Gamble. Jeffries did this, claiming that when she did so, Mr. Gamble
was “quite hostile.” Jeffries stated that Gamble never complained or otherwise indicated that she
thought Jeffries was trespassing on her property.

                Gamble testified that Jeffries approached her about buying some of her land which
Gamble had inherited from her deceased husband. Gamble stated that the property lines were
discussed before a sale price was determined. The original discussions were for the property line
to go from Jeffries’ driveway up to a certain tree located next to property owned by neighbors.2
Gamble believed the boundary line was set that day. Except for inspecting the property a few days
before trial, Gamble has not been back to the property since that time.

                 A plat was prepared by Abbott and a deed also was prepared which Gamble signed.
Gamble stated that she has known Tony Abbott virtually his whole life and they attend the same
church. Gamble testified that the plat and deed correctly showed the property she had intended to
sell to Jeffries. There is a house occupied by Gamble’s granddaughter and a barn on the property
close to the Tract. Gamble claimed that she told Jeffries she wanted to keep the land where the barn
was located and would not sell that part of the property. Gamble testified that at no time did she
intend to sell the Tract to Jeffries. Gamble never went on the property with Jeffries to show her
exactly where the property line would be. Gamble admitted that on the same day she learned Jeffries
was claiming there was a problem with the deed because it did not show Jeffries owning the Tract,
Jeffries offered her money for the Tract.

               Roy Gamble also was called as a witness. Prior to the sale, Mr. Gamble farmed the
property sold to Jeffries. Mr. Gamble testified that the second time he went to the property with
Jeffries and Abbott was when the boundary lines of the property to be sold were established. After
that meeting, Abbott was supposed to survey the property. Mr. Gamble saw the plat and deed that
had been prepared. According to Mr. Gamble, the plat and deed correctly showed the amount of
property that was intended to be sold. Mr. Gamble was aware that Jeffries had bricks delivered and
placed on the Tract. Mr. Gamble did not say anything about this to Jeffries, but could not explain
why. Mr. Gamble realized there had been a mistake when Jeffries started building a barn on the
Tract. Instead of talking with Jeffries, Mr. Gamble contacted an attorney.




       2
           The tree referenced by Gamble was not the persimmon tree which Jeffries claims marked the boundary.

                                                      -3-
                 Abbott testified at trial. He is the County Engineer for Blount County. He also
conducts land and construction surveying and is a licensed surveyor. He has lived in the same
community as Gamble and attends the same church. He went to school with Roy Gamble. Jeffries
and Abbott are first cousins. Abbott was present when Gamble and Jeffries determined where the
property line would be. When surveying the property, an iron pin and flag was placed at the area
where the boundary line would be. There was a persimmon tree located at the corner where the iron
pin and flag were located. Abbott prepared the plat and it was recorded. Sometime in 1999, he
discovered that he had made a mistake. Jeffries had called him and indicated that she was going to
sell a portion of the land to her son and needed her land divided. Jeffries also told him she could not
find the iron pin. Abbott went to the property to locate the pin. The pin was not where he had
originally placed it. Abbott did not discover the error he had made on the plat until he “went back
in there to re-establish the point”. Abbott then testified as follows:

               Q       Where did they agree the line should be?

               A       The only understanding I ever had, based on the conversation
               that we had in that field that day, that corner was to be there in the
               vicinity of that persimmon tree.

               Q       All right. Consistent with what Mrs. Jeffries is claiming in
               this lawsuit?

               A       Yes.

                                               ****

               Q       Who made the mistake, Mr. Abbott?

               A       I made a mistake.

               Q       And you have told everybody that?

               A       Yes.

               Q       You take responsibility for it?

               A       Yes.

Abbott also testified he was on the property in 1997 because Jeffries was having problems with
Gamble’s daughter cutting wood from Jeffries’ property. He stated the iron pin and flag then were
located where they had been placed originally, near the persimmon tree.



                                                 -4-
                In addition to the live testimony, the parties stipulated to the testimony of several
witnesses. Prior to trial, Gamble filed a motion in limine seeking to preclude this testimony claiming
it was irrelevant. The Trial Court denied the motion, although no reason for doing so was set forth
in its order. Prior to trial, Gamble orally renewed the objection. The Trial Court again overruled
the motion, stating “[c]ircumstantially, it might tend to prove that the [property] lines were as Mrs.
Jeffries claims that they are, so I certainly think that these facts would be relevant.” While the
parties agreed that these witnesses were not present during discussions about the boundary line, the
parties stipulated that these witnesses would testify as follows (subject to Gamble’s previous
objections):

                          With regard to the testimony of the witnesses, Mack Brown,
                  Charlie Long, Andy Waters and Wells Waters, the parties stipulate
                  that an iron pin and flag that were set by Tony Abbott and his son,
                  Tyler Abbott, in 1995, and which were shown to them by the Plaintiff
                  in 1995 or 1996, were located as she claims the property line should
                  be located in this action.

                          These witnesses will also testify that they maintained the
                  entire area in dispute in this cause for Ms. Jeffries from 1995 on and
                  that their activities included plowing, seeding and mowing hay during
                  that period of time.

                          It is further stipulated that these witnesses would testify that
                  Ms. Jeffries caused to be placed on a portion of the area in dispute
                  certain construction materials during late 1998.

                                                         ****

                           The parties stipulate that Daniel Tyler Abbott, if called to
                  testify, would state that he assisted his father, Tony Abbott, in setting
                  the iron pin and flag at the point which the Plaintiff claims is the
                  correct line. That he was shown where the Gambles claim the
                  original line between the parties is located in the middle of the field
                  and that this is not the same location that he helped Tony Abbott
                  place the original iron pin and flag in 1995.

                After trial, the Trial Court3 issued a Judgment and Order for Reformation, finding that
Jeffries had proven by clear and convincing evidence that there was a mutual mistake in the deed.
The Trial Court also concluded that the evidence did not support the equitable defenses of estoppel


         3
           The Ch ancellor o riginally assig ned to this case recused himself because of a conflict of interest. The matter
was transf erred to C ircuit Cou rt Judge O . Duane Slone, w ho hear d the case b y intercha nge.

                                                           -5-
and waiver. The Trial Court ordered the deed to be reformed and that the funds deposited by Jeffries
into the court registry be disbursed to Gamble. This appeal followed.

                                             Discussion

                A review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                 We first address Gamble’s argument that the Trial Court erred in admitting testimony
of various witnesses. As indicated above, prior to and at trial, Gamble argued that this testimony
was irrelevant and the testimony was stipulated to subject to the objections. The Trial Court ruled
that this testimony was relevant because it might tend to prove that the property lines were as Jeffries
claimed.

                  Relevant evidence is generally admissible unless the federal or state constitutions,
applicable procedural rules, or other laws require its exclusion. Castelli v. Lien, 910 S.W.2d 420,
425 (Tenn. Ct. App. 1995). In order to be relevant, evidence must tend to make the existence of a
fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence. Id.; Tenn. R. Evid. 401. “One of the most important functions of
a trial judge is to control the admission of the evidence. Trial judges have broad discretion over the
admissibility of evidence … the order of the proof … the scope and extent of examination … and
the qualification of expert witnesses.” Castelli, 910 S.W.2d at 425 (citations omitted). An appellate
court will reverse a trial court’s decision on the relevancy of evidence only if there has been an abuse
of discretion and when the error has affected substantial rights of one or both of the parties. Id. at
425-26; Tenn. R. Evid. 103(a).

                In determining whether a mutual mistake exists, a trial court should take into
consideration the surrounding circumstances and any factors which tend to shed light on what the
parties intended. City of Memphis for Use and Benefit of State v. Moore, 818 S.W.2d 13, 16 (Tenn.
Ct. App. 1991); 76 C.J.S. Reformation of Instruments § 28 (1972). We conclude that the Trial Court
did not abuse its discretion when it determined that the testimony at issue was relevant to show that
the parties had intended for the Tract to be part of the land sold to Jeffries. While clearly not
conclusive on this issue, it is relevant.

                Gamble also argues that the Trial Court erred in denying Gamble’s motion for
summary judgment filed prior to trial and further erred when it concluded there had been a mutual
mistake entitling Jeffries to reformation of the deed. The main issue to be decided by the Trial Court
was whether the parties intended for the Tract to be part of the land sold to Jeffries. If it was, then
the parties were operating under a mutual mistake regarding the accuracy of the plat and deed. This
was a factual determination. As to any factual conclusions made by the Trial Court regarding what

                                                  -6-
transpired between the parties and what they intended to buy or sell, these conclusions are based in
large part on witness credibility. The Trial Court had the opportunity to observe both the parties and
their witnesses, as well as the manner and demeanor of those who actually testified at the trial. The
Trial Court’s factual determination involving witness credibility will be given great weight on
appeal. See Barnhill v. Barnhill, 826 S.W.2d 443, 448 (Tenn. Ct. App. 1991)(citing Town of Alamo
v. Forcum-James Co., 205 Tenn. 478, 327 S.W.2d 47 (1959)). As recently noted by this Court in
Rice v. Rice, 983 S.W.2d 680, 682 (Tenn. Ct. App. 1998):

               [O]n an issue which hinges on witness credibility, [the trial court]
               will not be reversed unless, other than the oral testimony of the
               witnesses, there is found in the record clear, concrete and convincing
               evidence to the contrary.

               In order to reform a written instrument because of a mistake, there must have been
either a mutual mistake, or a mistake of one party influenced by the other party's fraud. Williams
v. Botts, 3 S.W.3d 508, 509 (Tenn. Ct. App. 1999). “A ‘mistake’ is an act which would not have
been done, or an omission which would not have occurred, but from ignorance, forgetfulness,
inadvertence, mental incompetence, surprise, misplaced confidence, or imposition, and it must be
mutual or fraudulent.” Id. at 509-510. Before an instrument may undergo reformation for mistake,
the evidence must be clear, cogent, and convincing. See, e.g., Charton v. Burgess, 1989 WL 105655
at *3 (Tenn. Ct. App. 1989).

               After reviewing the entire record in this case, we do not believe that the evidence
preponderates against the Trial Court’s findings and conclusion that Jeffries had proven by clear and
convincing evidence that the parties intended for the Tract to be part of the property purchased by
Jeffries. The parties were, therefore, operating under a mutual mistake as to the accuracy of the
deed. “If the deed fails to express correctly the contract made, the court will reform the instrument
to conform to the real intention of the parties.” Charton v. Burgess, 1989 WL 105655 at *3 (Tenn.
Ct. App. 1989). Based on the Trial Court’s factual conclusion, which we affirm, Jeffries was entitled
to reformation of the deed. In light of this conclusion, Gamble’s argument that the Trial Court erred
in denying her motion for summary judgment is without merit as the vast majority of the proof
submitted on behalf of Jeffries at trial was also submitted in affidavits in opposition to the motion
for summary judgment.

                Gamble’s remaining argument is that Jeffries is estopped from denying the accuracy
of the deed because the boundaries established in the deed were utilized by Jeffries in subdividing
the property when she sold a portion of the land to her son. The testimony by Jeffries was that she
attempted to resolve this matter amicably by informing Gamble of the mistake in the deed and
paying for the additional land since the purchase price did not reflect the .61 acre Tract. When this
proved unsuccessful, she filed suit to reform the deed. At the time the property was sold to her son,
the boundary lines were as reflected in Jeffries’ deed, even though they were incorrect due to a
mutual mistake by the parties. Even though the deed was wrong, it was, nevertheless, signed and
recorded. We do not believe that the equitable doctrine of estoppel required Jeffries to subdivide her

                                                 -7-
property based on what she believed the correct boundary line to be when selling a portion of the
land to her son. This is even more apparent since: 1) litigation to reform the deed had not yet been
completed and there was no judicial conclusion that Jeffries was entitled to reformation of the deed;
and 2) Gamble was not involved in the sale of land from Jeffries to her son. This argument is
without merit.

                                            Conclusion

                The judgment of the Trial Court is affirmed. This case is remanded to the Trial Court
for further proceedings as may be required, if any, consistent with this Opinion, and for collection
of costs below. Costs of appeal are taxed to the Appellants Irene Gamble and Roma Lois Gamble
and their surety.




                                                      ____________________________________
                                                      D. MICHAEL SWINEY




                                                -8-
