                   IN THE COURT OF APPEALS OF TENNESSEE,
                                 AT NASHVILLE
           ____________________________________________________________

                                         )
                                                                       FFILED
ANJUM D. ALI,                            ) Davidson County Chancery Court 2000
                                                            February 18,
                                         ) No. 97-203-II
  Plaintiff/Counter-Defendant/Appellant, )                  Cecil Crowson, Jr.
                                         )                Appellate Court Clerk
VS.                                      ) C.A. No. M1999-00082-COA-R3-CV
                                         )
PROFESSIONAL REAL ESTATE                 )
DEVELOPERS, INC.,                        )
                                         )
   Defendant/Counter-Plaintiff/          )
   Third Party Plaintiff/Appellee,       )
                                         )
VS.                                      )
                                         )
MIR AHMED IFTEKAR ALI,                   )
                                         )
   Third Party Defendant.                )
______________________________________________________________________________
From the Chancery Court of Davidson County at Nashville.
Honorable Carol L. McCoy, Chancellor



Stewart F. Kresge, Nashville, Tennessee
Attorney for Plaintiff/Counter-Defendant/Appellant.


Marshall L. Hix,
James David Nave,
HIX GRAY & NAVE, PLLC, Nashville, Tennessee
Attorneys for Defendant/Counter-Plaintiff/Third Party Plaintiff/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED

                                               FARMER, J.


HIGHERS, J.: (Concurs)
LILLARD, J.: (Concurs)




               In this action to determine the rights of the parties with respect to a piece of real
property located at 736 McGavock Pike in Nashville, Tennessee (“the McGavock property”), the

trial court declared that Defendant Professional Real Estate Developers, Inc. (“PRD”) is the owner

of the disputed real property in fee simple and ordered Plaintiff Anjum D. Ali and Third Party

Defendant Mir Ahmed Iftekar Ali to pay PRD damages in the amount of $10,000.00. For the
reasons set forth below, we affirm the ruling of the trial court.
                                  Factual and Procedural History


               Ms. Ali purchased the McGavock property in March of 1993. Ms. Ali subsequently

executed and recorded a quit claim deed establishing herself and Mr. Ali as owners of the property
as tenants by the entireties. At the time that it was purchased, the property was indebted to the extent

of $35,100.00, as evidenced by a deed of trust executed by Mr. Ali and Ms. Ali in favor of

NationsBank. In January of 1995, Mr. Ali and Ms. Ali executed a written agreement evidencing
their intention regarding the disposition of their assets, including the McGavock property, in the

event of divorce.1 In March of 1996, Mr. Ali and Ms. Ali met with David Anderson of Clive

Anderson Realty & Auction Company regarding the possibility of selling the McGavock property.
Thereafter in May of 1996, Ms. Ali left the United States and traveled to India. While Ms. Ali was

in India, Mr. Anderson sold the McGavock property at auction to PRD. Following the auction, PRD

executed a sales contract agreeing to purchase the property for $185,000.00. A closing took place,
at which time the closing attorney disbursed $31,523.67 to NationsBank to satisfy the remaining

indebtedness on the property and NationsBank executed a release of its deed of trust. Mr. Ali then

executed a warranty deed conveying the real property to PRD in his individual capacity and in a

representative capacity for Ms. Ali. Mr. Ali purported to have authority to act on Ms. Ali’s behalf

based on a general power of attorney allegedly executed by Ms. Ali on October 4, 1994 and recorded

with the register of deeds on May 24, 1996. After the closing, Mr. Ali left the United States and

joined Ms. Ali in India. Mr. Ali allegedly became abusive to Ms. Ali, however, prompting her to

return to the United States, whereupon she discovered that the McGavock property had been sold
to PRD.



                In January of 1997, Ms. Ali filed a complaint against PRD to quiet title on the real
property. PRD then filed an answer to the complaint, a counter-claim against Ms. Ali, and a third

party complaint against Mr. Ali. During a hearing on the matter, Ms. Ali denied that she signed the

power of attorney used by Mr. Ali when executing the warranty deed in favor of PRD. With respect
to the authenticity of Ms. Ali’s signature on the power of attorney, two expert witnesses testified at

trial. Thomas Vastrick, a forensic document examiner, testified that he simply did not know whether

the purported signature of Ms. Ali on the power of attorney was genuine. Jane Eakes, a certified

document examiner specializing in handwriting, testified as to her belief that the signature on the

power of attorney was, in fact, the signature of Ms. Ali. Raman G. Dayal, who is the president of

PRD, also testified at trial. According to Mr. Dayal, PRD planned to build a 120-room hotel on the

McGavock property. Upon receiving a letter from Ms. Ali’s attorney questioning the validity of


   1
    Ms. Ali filed a complaint seeking a divorce from Mr. Ali in November of 1994. However, a
final decree of divorce was not entered until December of 1997.
PRD’s title to the property, however, this project “came to a screeching halt.” At the conclusion of
the trial, the court (1) found that Ms. Ali had not met her burden of proving the existence of a forgery

and consequently denied her complaint, (2) declared that the power of attorney and warranty deed

on which PRD relied were valid and enforceable, (3) declared that PRD is the owner of the
McGavock property in fee simple and that its interest is not subject to the claims of Ms. Ali, and (4)

awarded damages to PRD in the amount of $10,000.00, designating that the judgment was charged

one-half to Ms. Ali and one-half to Mr. Ali. A final order consistent with this ruling was entered in
January of 1999. This appeal by Ms. Ali followed.



                                   Issues and Standard of Review


                The issues raised on appeal, as stated by Ms. Ali, are as follows:



                1.      Whether a party who relies upon the acts of an agent to bind
                        a principal has the burden of proving the authority of the
                        agent when agency is denied by the principal.

                2.      Whether the findings of fact and conclusions of law of the
                        trial court are contrary to the preponderance of the evidence.



To the extent that these issues involve questions of fact, our review of the trial court’s ruling is de
novo with a presumption of correctness. See T.R.A.P. 13(d). Accordingly, we may not reverse these
findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v.

Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the trial court’s legal

conclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex
rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.

1999); T.R.A.P. 13(d).


                                           Burden of Proof


                With respect to burden of proof in the instant case, the trial court stated as follows:



                        One of the primary concerns that I’ve had is the burden of
                proof. [Ms. Ali’s attorney] states very assertively that the burden of
                proof is on [PRD] to prove the validity of the signature on the general
                power of attorney. My understanding of the case law is to the
                contrary. Ms. Ali is the one who has the burden of demonstrating that
                her signature on the power of attorney was a forgery, because it is on
                that basis that she filed the complaint on which she travels in this
                lawsuit.

                         What is not readily apparent to me is the standard of whether
                it is by a preponderance of the proof or clear and convincing. I will
                state that in no instance do I find that this signature was a forgery
                beyond a reasonable doubt. . . . And I do not find that there was a
               forgery beyond a reasonable doubt.
                       ....

                       I do not find by clear and convincing evidence that Ms. Ali’s
               signature on the deed is a forgery. It is the preponderance of proof
               that gives me pause. . . . I do not find that I can determine that Ms.
               Ali’s signature on the general power of attorney recorded October 4th,
               1994, was or wasn’t genuine by a preponderance of the proof, and it
               is the burden of [Ms. Ali] to persuade me that it was a forgery in
               order for me to award her the relief which she seeks.

                       ....
                       . . . [I]n the absence of the Court being unable[sic] to conclude
               by a preponderance of the proof that the signature is a forgery and not
               valid, the Court so declares that it is.



Thus, the trial court concluded that Ms. Ali had the burden of proving that her purported signature

on the power of attorney was a forgery. In the statements quoted above, there are references to three

different evidentiary standards, including “a preponderance of the proof,” “clear and convincing
evidence,” and proof “beyond a reasonable doubt.” The court found that, under each of these

standards, the evidence presented by Ms. Ali was insufficient to prove that her signature on the

power of attorney was a forgery. 2


               Ms. Ali argues that the trial court erred in placing the burden of proof on her rather

than on PRD. She characterizes the present action as a case of an alleged agency rather than one

involving an alleged forgery. Under Tennessee law, the burden of proof in cases of an alleged

agency is on the party asserting the agency. See Watson v. McCabe, 527 F.2d 286, 289 (6th Cir.

1975); Jack Daniel Distillery, Lem Motlow, Prop. v. Jackson, 740 S.W.2d 413, 416 (Tenn. 1987);

Cobble v. Langford, 230 S.W.2d 194, 197 (Tenn. 1950); Southland Express, Inc. v. Scrap Metal

Buyers of Tampa, Inc., 895 S.W.2d 335, 340 (Tenn. Ct. App. 1994); John J. Heirigs Constr. Co.

v. Exide, 709 S.W.2d 604, 608 (Tenn. Ct. App. 1986); Sloan v. Hall, 673 S.W.2d 548, 551 (Tenn.

Ct. App. 1984). Thus, because the validity of PRD’s deed is dependent on the existence of an



   2
   Subsequent to the trial court’s ruling, an exchange between the court and counsel for Ms. Ali
occurred, as follows:

       Counsel:        In your findings could you please indicate whether
                       or not you believe the plaintiff -- well, not by clear
                       and convincing evidence, but a preponderance of
                       the evidence, carried the burden?

       The Court:      I did address that. What I found is that I am [not]
                       persuaded by a preponderance of the evidence that
                       the signature on the power of attorney was not
                       genuine. Mr. Vastrick was unable to conclude that
                       is was not genuine. I have a like mind.

Thus, although the court discussed all three evidentiary standards, the court clearly understood
that Ms. Ali was required to prove the existence of a forgery by only a preponderance of the
evidence.
agency relationship between Mr. Ali and Ms. Ali, Ms. Ali contends that the burden of proof should
have been placed on PRD.



               Unlike Ms. Ali, PRD characterizes the instant case as one of alleged forgery. In Kyle

v. Kyle, 74 S.W.2d 1065 (Tenn. Ct. App. 1934), this court considered whether Kyle signed a deed

purporting to convey a piece of real property to Garrett and whether Kyle endorsed a check allegedly

given to him by Garrett as payment for this property. See id. at 1065. Kyle contended that his

purported signature on the deed and canceled check were forgeries. See id. at 1065-66. With respect

to the proper placement of the burden of proof, the court stated as follows:



                       Upon which party did the burden of proof lie as to the validity
               of the deed? The chancellor placed it upon [the proponent of the
               deed], conceiving that to him the rule was applicable that the general
               plea of non est factum throws upon the party claiming under the
               instrument the burden of proving the execution of it by the alleged
               maker, or by some one authorized to bind him. . . . We think that in
               this view the chancellor was in error. . . .

                       ....

                       The issue being properly presented by the cross-bill and
               answer, the burden was upon the cross-complainant to show that the
               deed was a forgery and to avoid the certificate of acknowledgment.
               The presumption is in favor of the validity and regularity of a written
               instrument, and the person asserting its invalidity has the burden of
               proving his allegations by clear and satisfactory evidence. . . . The
               evidence must not merely raise a suspicion, or indicate a probability,
               but it must be full, convincing, and conclusive.



Id. at 1067 (citations omitted). Although the court in Kyle used language suggesting a higher

standard of proof, other Tennessee cases have clarified that a party challenging a written instrument

has the burden of proving the invalidity of the writing by only a preponderance of the evidence. See

In re Rudd (Drake v. Bank of Troy), 28 B.R. 591, 593 (Bankr. W.D. Tenn. 1983)(“While the burden

of proof is upon the party seeking to impeach the writing, a preponderance of the evidence is all that

is required.”); Bennett v. Massachusetts Mut. Life Ins. Co., 64 S.W. 758, 759 (Tenn. 1901)(“It is

true, the burden is upon the party seeking to impeach the writing, but a preponderance of evidence

is all that is required in this as well as other civil actions.”); McBee v. Bowman, 14 S.W. 481, 483

(Tenn. 1890)(holding that the trial court erred in instructing the jury that the party alleging the
existence of a forgery must prove his case “with reasonable certainty” and stating that “[i]n civil

cases a preponderance is all that is required” ); Keys v. Keys, 129 S.W.2d 1103, 1105 (Tenn. Ct.

App. 1939)(holding that the trial court did not err in instructing the jury that “the burden thereupon

shifted to the contestants to show by a preponderance of the evidence that the will was a forgery”).



               Although we recognize that the present action involves a purported agency
relationship between Mr. Ali and Ms. Ali, we agree with PRD that the crux of the case is the
allegation that Ms. Ali’s signature on the power of attorney is a forgery. The existence or

nonexistence of an agency relationship between Mr. Ali and Ms. Ali is wholly dependant on the

outcome of the court’s inquiry regarding whether the power of attorney was forged. If Ms. Ali’s
signature on the power of attorney was not forged, then Mr. Ali had the authority to execute the deed

to PRD on Ms. Ali’s behalf. If, however, the signature was forged, then no such authority existed.

The determinative issue, then, is not whether an agency relationship existed between Mr. Ali and Ms.
Ali, but whether Ms. Ali’s signature on the power of attorney is a forgery. When a written

instrument is challenged based on the allegation that a signature on the instrument has been forged,

the burden of proving the existence of a forgery is on the party seeking to invalidate the instrument.
Ms. Ali alleges that her signature on the power of attorney was forged and, therefore, the deed

executed by Mr. Ali on her behalf is invalid. We conclude that the trial court did not err in placing

the burden of proof on Ms. Ali.



                                  Factual Finding of Trial Court


               As stated above, the trial court concluded that Ms. Ali failed to prove that her

purported signature on the power of attorney is a forgery. Ms. Ali argues on appeal that this finding

is contrary to the preponderance of the evidence. We disagree.



               Ms. Ali testified at trial that she did not sign the power of attorney. She further
testified that it was her belief that Mr. Ali forged her name to this document. According to Ms. Ali,

Mr. Ali had forged “a lot of documents” in the past, including other powers of attorney. Mr.

Vastrick, who testified as an expert witness for Ms. Ali, stated that he examined approximately thirty
to forty samples purporting to be the signatures of Ms. Ali. Mr. Vastrick discovered some

differences among these signatures, causing him to question whether some of them were genuine.

Ms. Ali subsequently made a list indicating which of the purported signatures were genuine and
which of them were forgeries. According to Mr. Vastrick, however, the list complied by Ms. Ali did

not coincide with the two different writing styles revealed by his examination of the signatures.

Because he was unsure whether the sample signatures provided to him were genuine, Mr. Vastrick

was unable to make a determination regarding the genuineness of Ms. Ali’s purported signature on

the power of attorney. Ms. Eakes, who testified as an expert witness for PRD, examined the sample

signatures and the purported signature on the power of attorney, concluding that the signature of Ms.

Ali on the power of attorney was genuine.



               In Kyle, the court concluded as follows:
               [Mr. Kyle] asked the court to declare this deed a forgery just because
               he swears that he never executed it, never signed it, never received
               the check or indorsed it, and because there are some differences in the
               characteristics of the handwritings. On the other hand, we have a
               deed regular in form and a check indorsed relating to a transaction
               which is very likely to have been consummated. The presumption is
               in favor of the validity of these papers. The testimony of the grantor
               alone is insufficient to invalidate the deed. The other evidence does
               not satisfy this court that the signatures are forgeries, even when
               taken in connection with the testimony of Kyle himself. We do not
               know absolutely what is the truth about this matter. The burden was
               upon the cross-complainant, Kyle, to establish by clear, satisfactory,
               and conclusive evidence that the deed is a forgery. The evidence
               which he has adduced does not fulfill these requirements, in our
               opinion.



Kyle, 74 S.W.2d at 1069. Likewise, in the instant case, Ms. Ali had the burden of proving that her

purported signature on the power of attorney was a forgery. Neither of the experts who testified at

trial were able to conclude that the signature was a forgery. Thus, the only evidence in support of
Ms. Ali’s position is her own testimony that she did not sign the power of attorney.3 After
consideration of all of the evidence in the record, we agree with the trial court that Ms. Ali’s

testimony was insufficient to prove the existence of a forgery. Upon reviewing this record, we
conclude that the evidence does not preponderate against the finding of the trial court.



                                            Conclusion


               The judgment of the trial court is affirmed. Costs on appeal are assessed against Ms.

Ali, for which execution may issue if necessary.




                                                      ____________________________________
                                                      FARMER, J.



______________________________
HIGHERS, J.



______________________________
LILLARD, J.




   3
    In its ruling, however, the trial court expressed doubt regarding the credibility of Ms. Ali’s
testimony, stating as follows:

              There is a question in my mind as to the credibility of Ms. Ali with regards
       to some of the circumstances that arose, and that I cannot erase from my mind.
