                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 15, 2011 Session

  IN RE: ESTATE OF RAYMOND L. SMALLMAN, DECEASED, MARK
         SMALLMAN, ET AL., V. LINDA CARAWAY, ET AL.

               Appeal from the Chancery Court for Hamblen County
       Nos. 2009P120 & 2009-440 Hon. Thomas R. Frierson, II., Chancellor


            No. E2010-02344-COA-R3-CV-FILED-DECEMBER 12, 2011


The two sons of decedent asked the Court to declare that their father died intestate and that
his marriage to appellant a few days before he died was void because he was neither
competent to make a will or enter into a marriage contract. Upon trial, the jury determined
that the deceased was not of sound mind when he executed a will, a copy of which was filed
in evidence, and the will was obtained through undue influence of appellant. The jury also
found that the marriage between the decedent and appellant was invalid as well. The Trial
Judge approved the jury verdict and appellant has appealed. We hold that material evidence
supports the jury verdict as approved by the Trial Judge and remand.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., joined, and C HARLES D. S USANO, J R., J., dissented and filed an opinion.


H. Scott Reams, Morristown, Tennessee, for the appellant, Linda Caraway

Denise Terry Stapleton, Morristown, Tennessee, Douglas T. Jenkins, Rogersville, Tennessee,
and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellees, Mark Smallman and
Jeffrey Smallman.


                                        OPINION

       This is an appeal from a jury verdict in a declaratory judgment proceeding involving
the estate of Raymond L. Smallman. The ultimate issues involved the establishment of a lost
will and a challenge to the validity of the marriage between Raymond Smallman and
defendant Linda Caraway. The action was brought by the two sons of Raymond Smallman,
Mark Smallman and Jeffrey Smallman (the Smallman sons). The Smallman sons' Petition
alleged they believed their father died without a will, but they anticipated that Linda Caraway
would present the Court with a copy of the will for purposes of probate. The Petition also
averred that Linda Caraway exercised undue influence over Raymond Smallman in order to
obtain a marriage license, marry the decedent and obtain a signature on a will and take
certain assets of the decedent.

       Linda Caraway then filed a Petition alleging that she was Raymond Smallman’s
widow and was seeking appointment as the personal representative of the estate, and also an
order admitting the copy of the Last Will and Testament of Raymond Smallman to probate.

       On September 4, 2009, the Smallman sons filed a Complaint for Declaratory
Judgment in the Chancery Court, seeking a declaration that the marriage between Raymond
Smallman and Linda Caraway was “void and of no legal effect” and that Raymond Smallman
died intestate. The Complaint averred that Mr. Smallman “lacked the legal ability to marry
and therefore the claimed marriage to Linda Caraway shortly before the death of Mr.
Smallman is utterly void and of no legal effect.” They also alleged that the statutory
requirements for a valid marriage were not followed, rendering the marriage void. The
Complaint further alleged that the will executed by Mr. Smallman on April 16, 2009 cannot
be found and there is a presumption that the will was revoked by Mr. Smallman before his
death. The Smallman sons asked the Court to declare that their father died intestate, and
demanded a jury trial.

      The Court appointed Beth Boniface as the Administrator pendente lite of the
deceased's estate and Letters of Administration were issued to Ms. Boniface.

       Prior to trial, Linda Caraway filed a Motion in Limine and an Amended Motion in
Limine seeking to prohibit the introduction of evidence of her real estate holdings and
financial conditions and the Last Will and Testament of her mother, Rena Blair. These
motions were denied.

       A jury trial ensued, and the jury found that the marriage between Raymond Smallman
and Linda Caraway was not valid and that the photocopy of the writing purported to be the
Last Will and Testament of Raymond Smallman dated April 16, 2009 should not be
established and admitted to probate. The jury also found that Raymond Smallman was not
of sound mind when he executed the will of April 16, 2009 and that will was obtained
through the undue influence of Linda Caraway. The Trial Court approved the jury verdict and

                                              -2-
a Judgment was entered on June 30, 2010.

       Defendant, Linda Caraway, filed a timely Notice of Appeal to this Court.

                                             Background

        Raymond Smallman was born November 13, 1937 and died July 7, 2009 at the age
of 71. Smallman was rarely called by his first name and almost everyone who knew him
called him “Bud” or “Sarge”. Smallman had married Dot and they had two sons, Jeffrey and
Mark. Dot died in 2004. Mr. Smallman served in the Army as a recruiter and he retired after
serving 17 years. Upon retirement, he returned to his home town and opened a pawn shop
called Sarge’s Corner with his business partner Pete Balzano. Smallman was meticulous
about recording all of his purchases, sales, loans, bills and other business of the shop in a
ledger on a daily basis. The ledger was introduced into evidence and it showed that Mr.
Smallman began writing in that particular ledger in 1991, although there were almost no
entries in the ledger from the last months of his life.

       Pete Balzano testified at trial, and said that Mr. Smallman was fond of Ms. Caraway
and that he talked about getting married to her until he became ill with cancer in the Spring
of 2008. Balzano said that he had heard Mr. Smallman say on more than one occasion that
he was not interested in Ms. Caraway’s money or possessions and she was not interested in
anything of his and that his estate was for his family and her estate was for her family.

       Ms. Caraway, who was 61 years old at the time of trial, stated that she was introduced
to Mr. Smallman by a friend in 2006. After that introduction, he started stopping by her store
to see her. He told her he had a list of qualifications he wanted in a lady and that he was
lonely. According to Ms. Caraway, they started dating and seeing each other regularly. She
related that they discussed marriage on their first date and that Mr. Smallman told her he was
looking for a wife and she was the person he was looking for. She stated that she was not
interested in marriage at the time but later she was agreeable to it and they discussed getting
married in June 2007. She explained that she was taking care of her terminally ill mother
during June 2007, so the wedding did not occur. She claimed that Smallman bought wedding
rings in December 2007 and the plan was to get married in June 2008.1 The plan was not
carried out because in the Spring of 2008, Mr. Smallman was diagnosed with lung cancer and
he underwent chemotherapy and radiation.

      Ms. Caraway testified that Mr. Smallman’s cancer reoccurred during the winter of
2009 and he underwent another round of chemotherapy at that time. She stated that he had

       1
           Ms. Caraway’s mother did not die until January 2009.

                                                   -3-
problems with lack of appetite and pain. Ms. Caraway started taking him to his pawn shop,
to the grocery store and on other errands. In her opinion, his mind was fine and he was able
to transact business. However, he stopped going to the pawn shop in mid-April and by June
2009, she recalled that his condition had deteriorated to the point that he was so fatigued he
stayed in bed or on the couch much of the time. Ms. Caraway moved into Mr. Smallman’s
home in May 2009 and took charge of his care. She stated that she drove him wherever he
needed to go, cooked his meals, washed his clothes, ran errands, took money back and forth
to the pawn shop and did whatever else he needed. She remained in the residence with
Smallman until his death on July 7, 2009.

       Ms. Caraway testified that in April 2009 Smallman asked her to call attorney Clint
Anderson and make an appointment with the attorney about making a will and other matters.
She testified she took Smallman to Mr. Anderson’s office for the scheduled appointment, and
she claimed that she stayed in the waiting room of the attorney’s office while Smallman met
with Anderson. Anderson stated that he prepared the will on April 16, 2009 at Mr.
Smallman’s request. He stated that he discussed the terms of the will with Mr. Smallman and
ascertained that he had the capacity to execute the will. He found Smallman able to answer
his questions clearly and he was of the opinion that he knew what he wanted the will to say.
Once the will was drafted, it was signed in the presence of Anderson and his secretary.

      Following the execution of the will, Mr. Smallman was given the original will in an
envelope that had “Last Will and Testament of Raymond Smallman” written on it.

       Ms. Caraway testified that she was aware that the will was in a white envelope but
did not know the provision of the will and she declined Mr. Smallman’s invitation to read
the will. The original will was never located after Smallman’s death.

        Mr. Smallman’s partner in the pawn shop, Pete Balzano, contradicted Ms. Caraway’s
testimony that she did not know the terms of the will. Balzano testified that about a week
or ten days before Smallman’s death, he inquired of Ms. Caraway whether Mr. Smallman had
a will and would he be taken care of under the terms of the will. Balzano claimed that in
response to his question, Ms. Caraway told him that there was a will and that he was taken
care of but if he needed to confirm this information he should talk to Mr. Anderson. She then
telephoned Anderson and made an appointment for Balzano to see him, and according to
Balzano, Ms. Caraway accompanied him to Mr. Anderson’s office that same day and Mr.
Anderson confirmed that there was a will and that he was taken care of in the will.2



        2
         The copy of the will made certain provisions about the sale of Sarge’s Corner that were favorable
to Mr. Balzano.

                                                   -4-
        Mark Smallman testified that neither he nor his brother Jeffrey were aware that his
father had executed a will until after his death. Jeffrey stated that Ms. Caraway denied
knowing that there was a will but she did tell him that she had taken Mr. Smallman to Mr.
Anderson’s office for the purpose of preparing a will. The brothers obtained a copy of the
will from Anderson but they never found the original will in Smallman’s house. Jeffrey
related that after they got the copy of the will, he called Ms. Caraway and told her that his
father had left everything to her. She responded that she had told Mr. Smallman that she did
not want anything and that she would “deny the estate”. At that point Jeffrey told her that
if the original will was found, the brothers were going to “fight it.”

       On cross-examination, Ms. Caraway was asked about the circumstances that led up
to her mother, Rena Blair, making a will in which she left Ms. Caraway her entire estate. Ms.
Caraway explained that her mother had two daughters, herself and her sister Carolyn. Ms.
Caraway agreed that after Carolyn died, her mother made a will that left her entire estate to
Ms. Caraway and nothing to Carolyn’s adopted daughter. The Blair will was admitted into
evidence and showed that it was executed by Ms. Blair in October 2004, more than four years
before Ms. Blair died. Ms. Caraway was also shown her answer to an interrogatory regarding
the value of her real estate holdings, which she identified. The document, entered into
evidence reflected that the value of her real estate holdings was approximately 2 million
dollars.

        There was substantial testimony presented by Ms. Caraway and the Smallman brothers
that Mr. Smallman’s physical condition continued to deteriorate during the spring of 2009
and that he stopped going to the pawn shop by mid-April and was confined to bed or the
couch most of the time by May. Caraway maintained in her testimony that Mr. Smallman’s
mental condition remained good and that he was as sharp as he always had been. Mr.
Smallman’s long- time friend Jim Gose testified that Mr. Smallman was mentally competent
just four to five days before his death. Mr. Smallman’s cousin, Betty Collins also testified
that he was mentally the same as he had been prior to his illness. She admitted that she and
Ms. Caraway had become friends since the death of Mr. Smallman.

       On the other hand, Kenneth Cole, the pastor of Mr. Smallman’s church testified that
he visited Mr. Smallman frequently during his illness and that he noted that he was in a
weakened state during his last six months and that his condition worsened at the end so that
he could barely converse. Smallman’s friends Bobby and Teresa Darnell testified that they
had stayed with Mr. Smallman on June 23rd , while Ms. Caraway went out. Both Mr. and
Mrs. Darnell commented on Mr. Smallman’s difficulty with communication that day, noting
that they could not understand what he was saying. Roy Johnson who worked at Sarge’s
Corner since 2006 and knew Smallman well, testified that he noted a decline in both his
physical and mental condition and that the last time he saw Smallman at the pawn shop he

                                             -5-
was having problems walking and with comprehension. Mr. Johnson stated that toward the
end of Smallman's life he had abandoned his well established habit of keeping his accounts
in his leger.

       Pete Balzano recalled the last time Smallman came to the pawn shop. He was
accompanied by his son Jeff and he was very frail and had declined both physically and
mentally. Balzano stated that by May and June Smallman could not deal with the business
and Mr. Balzano had to deal with Ms. Caraway on all matters he normally would have
discussed with Smallman. He recalled that when he saw Smallman on or about June 21 st, he
was struggling to communicate and was bedridden. He remarked that Mr. Smallman had
meticulously kept his financial records in his ledge until he became ill. Smallman also
neglected to renew the pawn shops Federal Firearms License during the Spring of 2009, even
though this license was crucial to the operation of the pawn shop.

       Mark Smallman’s wife Susie saw her father-in-law every day or every other day
during his illness. She testified that his decline during the last several weeks of life were
marked and that he was bed-ridden and did not talk much. Susie and Mark Smallman both
related how Mr. Smallman had not reacted to the visit of their son on June 29th as he usually
would have. Their son was home on leave from the military and visited his grandfather in
uniform. Mr. Smallman recognized his grandson but he did not interact with him at all.
Mark Smallman recalled responding to a call from Ms. Caraway on June 25th . Ms. Caraway
expressed concern about her ability to handle the care of Mr. Smallman on her own and they
discussed the need to hire nurses. Mark testified that he stayed with his father all day and
that his father was unable to talk in sentences. Mark also confirmed the testimony of
Johnson and Balzano regarding his father’s inability to look after his business and his
abandonment of his ledger.

        Jeffrey Smallman lives in Pennsylvania and visited his father for one week a year in
the summer. Jeffrey visited his father in April 2009 and he was shocked at the changes in
him since the previous summer. He noted, however, that in April, his father could still carry
on a conversation. He returned to Tennessee in May to spend more time with his father, and
found that he had further deteriorated. Jeffrey recounted that during the May visit he took
his father to the pawn shop. During the stop at the shop, his father ended up collecting a fair
amount of cash which he put in his pockets. When they returned home, his father found the
money in his pockets but he had no understanding that the money was payments made to him
by people who did business with the shop. Jeffrey related that he had called his father on
June 21st to wish him a happy father’s day but his father did not seem to understand his
conversation and was incoherent.

       Ms. Caraway testified that although Smallman’s physical condition was deteriorating

                                              -6-
during the Spring of 2009, he continued to ask her to marry him and that she kept saying no.
At some point in June, however, she relented because she wanted to make him happy. They
decided on a date for the wedding and Mr. Smallman asked Ms. Caraway to ask his cousin
Betty Collins to be a witness to the ceremony. Ms. Caraway claimed she asked Mr.
Smallman if he wanted her to call his pastor, Kenny Cole, and ask him to perform the
ceremony. She stated that he told her not to ask Mr. Cole because his wife was sick. She
said Mr. Smallman told her to ask Ross Carmack if he would preform the ceremony.
Carmack is an investment advisor from whom Mr. Smallman had purchased annuities for his
grandchildren and is also an ordained minister. According to Ms. Caraway, Mr. Smallman
was too weak to go to the courthouse to apply for a marriage license, and she obtained the
necessary form affidavit from the courthouse and filled it out for him. Ms. Caraway then
asked attorney Bill Foutch to notarize the affidavit for the marriage license application.
Foutch testified that he went to Mr. Smallman’s home for that purpose on June 24, 2009. He
related that Smallman was in bed when he arrived and that Ms. Caraway left him alone with
Smallman. Foutch asked Smallman if he understood why he was there and Smallman
responded “Yeah, to seal the deal.” Mr. Foutch then asked him what he meant and he said
something like “Being husband and wife.” When asked if it was his opinion that Mr.
Smallman knew what he was doing, Mr. Foutch responded: “I think so.”

        On the same day, June 24, 2009, Ross Carmack performed the wedding ceremony
between Mr. Smallman and Ms. Caraway. Carmack stated that he was surprised when Ms.
Caraway called him and asked him to perform the ceremony. He asked her why they wanted
him to perform the ceremony and she replied that Mr. Smallman’s minister was out of town
and unable to perform it. Present at the ceremony, in addition to Ms. Caraway, Mr.
Smallman and Mr. Carmack, were Betty Collins and Ms. Carmack. Notably absent were the
Smallman brothers, their wives, their children and Ms. Caraway’s daughters. Mr. Carmack
testified that at the time of the ceremony Mr. Smallman was lying in the hospital bed and was
physically unwell. However, he was of the opinion that he was mentally alert and understood
what he was doing. Carmack appeared at the trial subject to a subpoena issued by Ms.
Caraway and he was paid $1,600.00 to testify.

        Mr. Smallman’s cousin, Betty Collins, was also present at the June 24 th wedding
ceremony, and she stated at the trial that she was under subpoena and did not want to testify.
Her testimony was that she witnessed the ceremony and that it was her belief that Mr.
Smallman wanted the marriage. She was not sure that he actually said “I do” or if he just
nodded his head affirmatively. Kenny Cole, the pastor of the church Mr. Smallman attended,
testified that he was not asked to perform the marriage ceremony on June 24, 2009 but if he
had been asked he would have been available to do so. He added that his wife’s illness
would not have kept him from going to Mr Smallman’s home to perform ceremony as he
visited there frequently during Mr. Smallman’s last months.

                                             -7-
       Ms. Caraway was shown home health records that indicate that the home health
workers were told not to attend to Mr. Smallman on June 24 th by “the family”. She stated
that she did not recall making this request.

        Smallman passed away thirteen days after the marriage ceremony, on July 7, 2009.
Ms. Caraway did not inform the Smallman brothers, their families or any one else of the
marriage during those thirteen days. She never told her daughters about the marriage and
they only found out about it when counsel for the Smallman sons contacted them for an
interview ten months after Smallman's death. In Pete Balzano's testimony, he said that he
called Ms. Caraway on June 24th and asked if he could visit Mr. Smallman, and she told him
not to come that day as they already had visitors from the church. She did not mention that
they were getting married that day.

       The day Mr. Smallman died Mark, testified that he was accompanied by Ms. Caraway,
and they went to the funeral home to make arrangements. Mark gave the funeral home
director the necessary vital statistics on his father in Ms. Caraway’s presence. She did not
say anything about the marriage in Mark’s presence. The next day Mark returned to the
funeral home to deliver his father’s military uniform for the burial, and the funeral director
told him to look at the death certificate when he got it. Ms. Caraway had waited until Mark
was out of the room before telling the funeral director that she was the surviving spouse.

       Mark stated that after this remark by the funeral director he started to feel uneasy, and
related several events pertaining to Ms. Caraway after the death.

       Jeffrey Smallman and his wife arrived in Tennessee on July 8th , the day after his
father’s death, and he testified that all of his father’s important papers were missing from the
house, including records of his bank accounts and tax returns. He looked in the filing
cabinets in his father’s office and found them empty. Ms. Caraway denied knowing what had
happened to the documents and also denied any knowledge of a will. During their
conversation, she told Jeff that she did not like keeping secrets and that she and his dad were
married. She them proceeded to tell him that they were only “married on paper to save the
pawn shop from the City of Morristown closing it. A surviving spouse can insist that the
pawn shop stay open.”

       The issues on appeal are:

       A.     Did the Trial Court err when it admitted evidence of the real estate holding of
              Linda Caraway and the last will and testament of Rena Blair?



                                              -8-
       B.     Is there any material evidence to support the jury’s verdict invalidating the
              marriage of Linda Caraway and Raymond Smallman?

       C.     Did the Trial Court err when it did not enter a directed verdict on the validity
              of the marriage of Linda Caraway and Raymond Smallman?

       D.     Did the Trial Court err in not entering a judgment upholding the validity of the
              marriage notwithstanding the verdict of the jury?

       The standard of review of a jury verdict is well settled under the Tennessee Rule of
Appellate Procedure 13(d), which provides, “[f]indings of fact by a jury in civil actions shall
be set aside only if there is no material evidence to support the verdict.” The Tennessee
Supreme Court, in Whaley v. Perkins, 197 S.W.3d 665 (Tenn.2006) addressed the approach
an appellate court should take when determining whether there is material evidence to
support a jury verdict as follows:

       [A]n appellate court shall : (1) take the strongest legitimate view of all the evidence
       in favor of the verdict; (2) assume the truth of all evidence that supports the verdict;
       (3) allow all reasonable inferences to sustain the verdict; and (4) discard all
       countervailing evidence. Appellate courts shall neither reweigh the evidence nor
       decide where the preponderance of the evidence lies. If the record contains “any
       material evidence to support the verdict, the jury's findings must be affirmed; if it
       were otherwise, the parties would be deprived of their constitutional right to trial by
       jury.”

Whaley v. Perkins, at 671 (citations omitted).

       The appellate courts do not make credibility determinations of the witnesses. Poole
v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980). The Tennessee Supreme Court has defined
“material evidence” as “evidence material to the question in controversy, which must
necessarily enter into the consideration of the controversy and by itself, or in connection with
the other evidence, be determinative of the case.” McCall v. Bennett, 243 S.W.3d 570, 574
(Tenn. Ct. App. 2007)(citing Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S.W. 319,
321 (Tenn.1905).

       This Court reviews evidentiary rulings of the trial court on an abuse of discretion
standard. Danny L. Davis Contractors, Inc. v. Hobbs, 157 S.W.3d 414, 418-19 (Tenn. Ct.
App. 2004)(citing Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992)).
The abuse of discretion standard requires us to consider:



                                              -9-
       (1) [W]hether the decision has a sufficient evidentiary foundation; (2) whether the
       trial court correctly identified and properly applied the appropriate legal principles;
       and (3) whether the decision is within the range of acceptable alternatives.

Id. at 419 (citations omitted).

       Even when a trial court abuses its discretion in the admission or exclusion of
evidence, the “harmless error doctrine” found in Tenn. R. App. P. 36(b) may apply. The rule
sets out the doctrine:

       A final judgment from which relief is available and otherwise appropriate shall not
       be set aside unless, considering the whole record, error involving a substantial right
       more probably than not affected the judgment or would result in prejudice to the
       judicial process.

Tenn. R. App. P. 36(b).

      Thus, a party claiming that a trial court erroneously allowed evidence to be admitted
must show that the trial court abused its discretion in doing so. If there is a finding of an
abuse of discretion, the party claiming error must also show that the admission of the
evidence more probably than not affected the verdict.

       The trial court’s conclusions of law are reviewed under a purely de novo standard with
no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005); Union
Carbide Corp. v. Huddleston 854 S.W.2d 87, 91 (Tenn. 1993).

        Ms. Caraway argues that the Court erred in admitting evidence and testimony
concerning her financial condition including a list of her real estate holdings and the will of
her mother. Counsel for the Smallman sons argued that the will was admissible under the
authority of Keith v. Murfreesboro Livestock Mkt., Inc., 780 S.W.2d 751, 757 (Tenn. Ct. App.
1989). In that case the court recognized that unrelated business transactions generally are not
admissible unless offered to prove matters such as knowledge, absence of mistake or
accident, fraudulent intent or a common scheme or plan. Counsel for the Smallmans argued
that the will of Linda Caraway's mother was to be offered to show that she had a common
scheme or plan to become the primary beneficiary in both the will of her mother and in the
will of Raymond Smallman. Counsel for the Smallmans represented to the Court that there
was a witness who could testify that Ms. Caraway was instrumental in having her mother’s
will made and that other family members were excluded to her benefit. The Trial Court
concluded that the value of the will outweighed the prejudicial effect of the evidence and
permitted the Blair will to be entered into evidence.

                                             -10-
        A witness was never called by the Smallman sons to testify and the will of Rena Blair,
as well as a list of Ms. Caraway’s real estate holdings, were introduced into evidence through
the testimony of Ms. Caraway during her cross-examination.

       The appellant takes the position the Trial Court abused its discretion when it admitted
the Blair will and list of appellant's real estate holdings into evidence. Appellant admits that
the Trial Court’s admission of the Blair will was based on the representation that a witness
would testify regarding the Blair will and the Smallman will, and makes the argument that
the Court could have corrected its error by granting her Motion to Set Aside the Verdict and
Enter Judgment in Accordance with the Motion for Directed Verdict and Motion for New
Trial.

        We agree the Blair will was not relevant to this case. “Relevant evidence” means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would have without the
evidence. (Tenn. R. Evid. 401). Relevant evidence is generally admissible while evidence
not relevant is not admissible. Rule 403 provides that even relevant evidence can be
excluded if its probative value is substantially outweighed by its prejudicial effect. The Blair
will, standing alone, did not provide any information to the jury as to the issues in the case,
thus it was not relevant evidence.

       However, the Trial Court did not abuse its discretion when it decided to allow the
Blair will testimony on representations of counsel. When the Smallmans failed to produce
the witness, the trial court had the option to instruct the jury to ignore the Blair will. The fact
that the Court did not do so, however, was harmless error. Appellant argues that the
introduction of the Blair will was prejudicial because the jury would see Ms. Caraway as a
“gold-digger”. There is no basis for this belief as the jury had no knowledge of the common
scheme theory. All the jury knew was that Ms. Caraway had inherited her mother’s estate
based on a will that had been prepared four years before Ms. Blair’s death. No other
information was available to the jury and there was no basis to conclude that the jury would
be prejudiced against Ms. Caraway based upon that fact that she, as the sole surviving child
of Rena Blair, inherited her estate. Moreover, there was no evidence before the jury as to the
extent of the estate of Rena Blair, thus there is no basis for concluding the jury would have
perceived her to be a “gold-digger”.

        Similarly, appellant argues that the real property listed in the exhibit lacks relevancy
to the issues of this case. She claims that the purpose for introducing the list her real estate
holdings was again to portray Ms Caraway as a gold-digger, thus any probative value it might
have was out weighed by its prejudicial effect. First, we point out that whether the real estate

                                               -11-
listed in the exhibit belonged to Ms. Caraway at all was never established at trial. Even if
it is assumed that she was the owner of the property, it is unclear if she bought the property
with her late husband, bought it independently or inherited it, or all of the above. The
appellant’s conclusion that the jury must have seen Ms. Caraway as a greedy, property
hungry “gold-digger” was not established by this document. Conversely, one could consider
that if the jury understood the property to be owned by Ms. Caraway, they could portray her
as a wealthy woman with no need to acquire Mr. Smallman’s estate. We agree with the
appellant that the exhibit is not relevant evidence to the issues of the case and that the Court
abused its discretion when it admitted such. However, the error was harmless as the exhibit
is neither probative to the issues nor is it prejudicial.

        Appellee points out that the disputed evidence was not mentioned by counsel for the
Smallmans in closing argument, nor did the Trial Court address it during jury charges.
Appellee cites State v. Young, 196 S.W.3d 85, 197 (Tenn. 2006) for its proposition that when
counsel does not mention in closing argument evidence that should have been excluded by
the trial court, the absence weighs in favor of a determination that no harmful error occurred.

       Other than raising this issue of whether the admission of the Blair will and the
Caraway real estate properties was error and a basis for new trial, appellant did not appeal
the jury’s findings that the lost will of Raymond Smallman should not be established and
admitted to probate, that Mr. Smallman was not of sound mind at the time he executed the
April 16, 2009 will and that the will was obtained through the undue influence by Linda
Caraway.

       The next issue is whether there is any material evidence to support the jury’s verdict
invalidating the marriage?

        Appellant argues that was no material evidence to support the jury’s verdict that the
marriage was invalid. She further argues that because there was no material evidence to
show Mr. Smallman was not of sound mind the day of the marriage ceremony, the Trial
Court was in error when it denied her motions for a directed verdict and for a judgment not
withstanding the verdict of the jury. These assignments of error are based on a determination
of whether there was material evidence showing that Mr. Smallman was not of sound mind
at the time of the ceremony, all three assignments are considered together.

      In Tennessee, the law of marriage is governed by statute and not common law.
Coulter v. Hendricks, 918 S.W.2d 424, 427 (Tenn. Ct. App. 1995). A marriage that has been
solemnized by a ceremony according to law is presumed to be valid, and that presumption
may be rebutted by cogent and convincing evidence. Guzman v. Alvares, 205 S.W.3d 375,
380 (Tenn.2006) (citing Aghili v. Saadatnejadi, 958 S.W.2d 784, 789 (Tenn. Ct. App.1997).

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There is evidence that the ceremony was in accordance with the procedures set forth in Tenn.
Code Ann. 36-3-103. Thus, the presumption of validity is present, and the burden of
rebutting the presumption by clear and convincing evidence lay with the Smallman sons.
They presented evidence showing that their father's mental function or mental capacity was
substantially impaired in the days before and after the wedding ceremony. This Court, in
Brown v. Watson, E200-401229-COA-R3-CV, 2005 WL 1566541 (Tenn. Ct. App. July 5,
2005), stated that “marriage is a civil contract, and may be voided, like any other contract,
for want of sufficient mental capacity of the parties. If the mind is unsound at the time, it is
incapable of consent, and that is an essential element in all contracts.” Id. at * 1(citing Hunt
v. Hunt, 412 S.W.2d 7 (Tenn. Ct. App.1965). There is substantial material evidence to
support the jury's finding that the marriage was void due to the father's mental incapacity.
        We are constrained to observe that Coulter v. Hendricks, 918 S.W.2d 424 (Tenn. Ct.
App. 1995) distinguished a void marriage from a voidable marriage. However, this issue was
not raised by the appellant at the trial level, nor on appeal. It is well settled that issues not
raised in the trial court should not be raised for the first time on appeal. Correll v. E.I.
DuPont de Nemours & Co., 207 S.W.3d 751, 757 (Tenn., 2006)(citing Simpson v. Frontier
Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991). We will not sua sponte consider the
issue implicit in the Correll Court's rationale. If we were to do so, Ms. Caraway alone would
benefit and the Smallman sons alone would be harmed. Neither the judicial process, the
court system nor the public would sustain injury. Moreover, under Rule 36(a), the court is
required to consider if such action would provide relief to the party who had failed to raise
the issue in the court below.

       The main issue on appeal is whether there was material evidence to support the jury's
verdict that the marriage between Smallman and Caraway was invalid. Both sides presented
testimony regarding the state of Smallman's mind on or near the time of the wedding
ceremony. All of the witnesses agreed Mr. Smallman's physical condition deteriorated
significantly through April, May and June 2009 and that by June he was very weak and
confined to his bed or couch.

        The Smallman sons, Mr. Smallman’s business partner and his employee Mr. Johnson
testified that Smallman’s mental acuity had been slipping for some time and that he was
completely unable to conduct business in the last several months of his life. Also, Mr. and
Mrs. Darnell stayed with Mr. Smallman the day before the wedding. They both related that
he was unable to communicate with them while they were with him and that he was not
himself. Mark Smallman and his wife Susie testified regarding their impressions of
Smallman’s mental state a few days after the wedding. They testified that he seemed to
barely recognize their son and he had basically stopped communicating with the family. Jeff
Smallman related that when he telephoned his father on June 21, 2009, Father’s Day, his
father was non-responsive, could not converse and was incoherent.

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       The two sides of the case presented completely opposite views regarding Mr.
Smallman’s state of mind around the time of the ceremony. We are required to “take the
strongest legitimate view of all the evidence in favor of the verdict”; “assume the truth of all
evidence that supports the verdict”; allow all reasonable inferences to sustain the verdict”;
and discard all countervailing evidence”. We cannot reweigh the evidence or decide where
the preponderance of the evidence lies, nor can we make credibility determinations. Based
upon these requirements, we hold that the record contains material evidence to support the
verdict, thus, the jury's finding that the marriage was invalid is affirmed by this Court.

        In sum, the Trial Court’s admission of the Blair will and the real estate holdings of
Linda Caraway was harmless error, and the record contains material evidence to support the
jury’s finding that the marriage was invalid. We affirm the Trial Court's Judgment. The cost
of the appeal is assessed to Linda Caraway.




                                                     _________________________________
                                                     HERSCHEL PICKENS FRANKS, P.J.




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