                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              September 20, 2011 Session

                     IN RE   ESTATE OF HOMER P. NORTON

                   Appeal from the Circuit Court for Sevier County
                   No. 2009-0937    Hon. Ben W. Hooper, II, Judge




            No. E2010-02304-COA-R3-CV-FILED-FEBRUARY 23, 2012


This lawsuit was filed by the decedent’s nephew and the nephew’s wife alleging that the
caretakers of the decedent improperly influenced him to change his will. The proponents of
the decedent’s will filed a motion for summary judgment, asserting that no confidential
relationship existed between the decedent and the caretakers in regard to the will. The trial
court granted the proponents’ motion, finding that proof of a confidential relationship was
necessary to pursue a will contest on the ground of undue influence, and that no such
confidential relationship existed between decedent and the caretakers. The contestants
appeal. Finding no reversible error, we affirm.

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


J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

G. Kevin Hardin, Knoxville, Tennessee, for the appellants, George C. Norton and Teresa R.
Norton.

Dale C. Allen and Luis C. Bustamante, Knoxville, Tennessee, for the appellees, Barbara W.
Boots, Personal Representative; Jimmy Carl Norton, Robert Norton, Clerlinda Mynatt, Joan
Hill, Personal Representative of the Estate of L.C. “Jack” Hill; John Wesley Hill, First
Methodist Church of Sevierville, Tennessee.
                                                OPINION

                                          I. BACKGROUND

        This appeal involves a will contest. Contestant George C. Norton (“GCN”) is an heir
of Homer P. Norton (“Decedent”), who died on April 22, 2009, leaving a will dated
December 18, 2007. In his will, Decedent left all his stock in Citizens National Bank
(“Citizens”) and half his residuary estate to GCN’s brothers, Jimmy Carl and Robert Norton,
and his sister, Clerlinda Norton Mynatt; the balance of the residuary estate was left to his late
wife’s brother and two of her nieces and nephews1 (collectively, “Proponents”). Decedent
left a life estate in a farm in Blount County to GCN, with the remainder interest to the
residuary beneficiaries.

       GCN contends that Decedent intended for him to inherit the estate and that he would
have inherited it if the last will was declared invalid, as he was a beneficiary of the January
29, 2004, May 25, 2005,2 and July 26, 2005 wills of Decedent. Contestant Teresa R. Norton
(“TRN”), GCN’s wife, asserts that she was a residuary beneficiary of wills dated May 25 and
July 26, 2005. GCN and TRN (collectively, “Contestants”) claim that they enjoyed a long
and loving relationship with Decedent. They note that for years, they would visit with
Decedent and his wife practically every Sunday and holidays. GCN claims that Decedent
was “like a daddy” to him and favored him in every way. TRN notes that she helped
Decedent’s wife and the Decedent at any time during the week if asked. In regard to
Decedent’s farm, GCN relates that he cared for it, paid a number of expenses out of pocket
to maintain it, and performed all the labor for free. According to Contestants, until two days
before the death of Decedent’s wife, GCN’s brothers and sister rarely visited.

       Contestants allege that the 2007 will is invalid because it was the product of undue
influence allegedly exercised over Decedent by caretakers Tina Panaro Gergurich, Carolyn
Reagan, Wanda Ramsey, and Diane Baker. According to GCN, the caretakers “seemed [like]
they didn’t want us around.” He claims that the caretakers took away Decedent’s
“independence and privacy.” TRN asserts that the caretakers, especially Gergurich, “said
things about [her] that were not true.” She relates that she was accused of calling health
department officials regarding the quality of care being provided by the caretakers, inquiring
about Decedent’s finances at the bank, and generally meddling in Decedent’s affairs.



       1
           The approximate amount of the estate available for distribution is $5,360,845.14.
       2
        Decedent’s will dated May 25, 2005, provided that 80% of his estate would go to GCN and 20%
to TRN (at the time, not yet GCN’s wife).

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       On April 6, 2010, Proponents filed a motion for summary judgment asserting (1) that
Contestants could not establish an essential element of their claim at trial, and (2) that
Proponents had affirmatively negated an essential element of the non-moving party’s claim.
Specifically, Proponents asserted that Contestants were unable to establish that there was a
confidential relationship between the Decedent and any other person and that Proponents had
affirmatively negated Contestants’ claims to that effect.

       To substantiate their claim of undue influence, Contestants presented the affidavits
of other caretakers who had worked in Decedent’s home. Louray Tipton testified that when
she worked for Decedent, Gergurich would kiss and rub on Decedent, who greatly enjoyed
the attention. Ms. Tipton observed that Decedent would not talk to her after Gergurich
arrived for work. She noted that Decedent would call Gergurich at home. According to Ms.
Tipton, Gergurich stopped TRN from taking Decedent to medical appointments as had been
the previous practice. She noted that Gergurich and TRN engaged in arguments. It was Ms.
Tipton’s opinion that Gergurich’s influence and control over Decedent resulted in a complete
change of the relationship between Contestants (particularly TRN) and Decedent. Ms.
Tipton further accused Baker of engaging in activities to arouse Decedent and opined that
Decedent also had an emotional attachment to Baker. According to Ms. Tipton, Decedent
loaned money to Baker. Ms. Tipton testified that Decedent was not receptive to her
complaints about the poor care being given to his wife.

       In another affidavit, caretaker Betty R. Sands described threatening treatment of
Decedent’s wife by Gergurich. She observed that Gergurich, in front of Decedent’s wife,
would flirt with Decedent by sitting in his lap, rubbing his head, shoulders, back and body,
and smile and banter with him. She opined that Decedent and his wife treated GCN and
TRN as if they were their own children. Ms. Sands stated that she never saw any of GCN’s
siblings visit and related that Decedent told her, “They don’t ever come around.” According
to Ms. Sands, she was fired by Gergurich after she administered CPR to Decedent’s wife and
took her to the hospital. Decedent’s wife died shortly thereafter.

        Connie Adams, another caretaker, testified by affidavit that Reagan would almost
choke Decedent’s wife when feeding her, and would talk to wife using a hateful tone and
demeaning manner. She observed that Reagan gave unprescribed dosages of medications
and poured wife’s protein shakes down the drain. Ms. Adams stated that Decedent would
not listen to her concerns about Reagan. She opined that Decedent had an emotional
attachment to Reagan and that Reagan had Decedent “wrapped around her little finger.” Ms.
Adams observed that Decedent was very proud of GCN and thought of him as a son.

      Proponents presented affidavits from individuals who had known and worked with
Decedent in personal and business matters for many years who confirmed that he was a

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competent, engaged businessman up to the end of his life. Contestants likewise admitted that
Decedent was responsible, independent minded, in control of his own affairs, and capable
of making his own decisions. They acknowledged that Decedent’s competence and
independence were exhibited by the fact that from the creation of Citizens, he was a bank
director who regularly attended Board meetings until the month of his death. Contestants
further noted that Decedent had access to independent professional advisors and attorneys
who assisted him in the consideration and preparation of a revised estate plan during the final
years before his death. David Verble, the President and Chief Executive Officer of Citizens,
who had known Decedent for more than 30 years, recalled that Decedent came to him
regarding his estate concerns. In order to best guide Decedent, Mr. Verble thereafter
introduced him to Jim Shelby and Daniel Carter, employees and trust officers of the Trust
Company in Knoxville in March 2007. Mr. Shelby testified that Decedent “wished to alter
his estate plan to limit gifts and bequests to [GCN] because of his concern that all of his
assets could pass outside the Norton family.” Mr. Carter recalled that Decedent “expressed
concerns with his then existing estate plan because under the plan all of his assets were to
pass to his nephew, [GCN], and he was concerned that at [GCN]’s death a majority of
[Decedent’s] estate would pass to [TRN] . . . and as such, the assets for which [Decedent]
had worked a lifetime to establish would pass outside the Norton family.” 3 Mr. Shelby and
Mr. Carter related that they both counseled with Decedent and ensured that he had access to
an independent attorney, Dale Allen, who would revise his estate plan pursuant to his wishes.
In fact, Mr. Shelby noted that he met with Decedent three times. In June 2007, Decedent
also met with attorney Randy Sykes of the Sevierville Bar, for the purpose of changing his
power of attorney, as he had appointed GCN his attorney-in-fact for business affairs in May
2005, July 2005, and October 2006. Mr. Verble and Janice Whaley, a longtime Citizen’s
employee, noted that Decedent expressed to them the desire to remove GCN as his attorney-
in-fact because he felt both GCN and TRN4 were interfering in his personal business. Ms.
Whaley subsequently served as Decedent’s attorney-in-fact until his death. According to Ms.
Whaley, as Decedent’s attorney-in-fact, she consulted and conferred with him many times
regarding his business and personal affairs. Based on her weekly communications and
meetings with Decedent, Ms. Whaley opined that he remained competent during his lifetime
and did not appear to be subject to the influence or control of any other person.

       On September 29, 2010, the trial court entered an order granting Proponents’ motion
for summary judgment, holding that as a matter of law, proof of a confidential relationship
was necessary to pursue a will contest on the ground of undue influence. The court held that


       3
         TRN is approximately 24.5 years younger than GCN, thus it would be reasonable for Decedent to
expect that TRN would survive her husband.
       4
           TRN had been an attorney-in-fact from May 2005 until October 2006.

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no such confidential relationship existed “between Decedent and anyone else.” As a result,
the trial court declared that the Decedent’s will dated December 18, 2007, was valid.
Contestants perfected this appeal.


                                        II. ISSUES

      The issues presented by the Contestants are restated as follows:

      1. Whether the trial court erred as a matter of law in granting summary
      judgment in favor of the Proponents finding that proof of a confidential
      relationship is a prerequisite to the pursuit of a will contest on the grounds of
      undue influence.

      2. Whether the trial court erred in determining that no confidential relationship
      existed between Decedent and any other persons such that the December 18,
      2007 will admitted to probate was not the Decedent’s free and independent act.


                            III. STANDARD OF REVIEW

       Our Supreme Court in Giggers v. Memphis Housing Authority, 277 S.W.3d 359
(Tenn. 2009), reviewed this state’s summary judgment standard:

      The scope of review of a grant of summary judgment is well established.
      Because our inquiry involves a question of law, no presumption of correctness
      attaches to the judgment, and our task is to review the record to determine
      whether the requirements of Rule 56 of the Tennessee Rules of Civil
      Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d, 50-51 (Tenn.
      1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

      A summary judgment may be granted only when there is no genuine issue of
      material fact and the moving party is entitled to judgment as a matter of law.
      Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The
      party seeking the summary judgment has the ultimate burden of persuasion
      “that there are no disputed, material facts creating a genuine issue for trial . .
      . and that he is entitled to judgment as a matter of law.” Id. at 215. If that
      motion is properly supported, the burden to establish a genuine issue of
      material fact shifts to the non-moving party. In order to shift the burden, the
      movant must either affirmatively negate an essential element of the

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       nonmovant’s claim or demonstrate that the non[-]moving party cannot
       establish an essential element of his case. Id. at 215 n. 5; Hannan v. Alltel
       Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are
       not sufficient to shift the burden to the non-moving party. Byrd, 847 S.W.2d
       at 215; see also Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
       state does not apply the federal standard for summary judgment. The standard
       established in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588
       (Tenn. 1998), sets out, in the words of one authority, “a reasonable, predictable
       summary judgment jurisprudence for our state.” Judy M. Cornett, The Legacy
       of Byrd v. Hall; Gossiping About Summary Judgment in Tennessee, 69 Tenn.
       L. Rev. 175, 220 (2001).

       Courts must view the evidence and all reasonable inferences therefrom in the
       light most favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d
       423, 426 (Tenn. 1997). A grant of summary judgment is appropriate only
       when the facts and the reasonable inferences from those facts would permit a
       reasonable person to reach only one conclusion. Staples v. CBL & Assocs.,
       Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this Court
       must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
       Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 363-64 (Tenn. 2009). Accordingly, “[t]he
moving party must either produce evidence or refer to evidence previously submitted by the
nonmoving party that negates an essential element of the nonmoving party’s claim or shows
that the nonmoving party cannot prove an essential element of the claim at trial.” Martin v.
Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citing Hannan, 270 S.W.3d at 5). If the
moving party does not carry its initial burden, the nonmoving party has no obligation to
produce evidentiary materials in support of its position. Id. (citing McCarley, 960 S.W.2d
at 588, Byrd, 847 S.W.2d at 215).


                                    IV. DISCUSSION

       Contestants essentially assert that the caretakers poisoned their relationship with
Decedent to the extent that Decedent changed his will. According to Contestants, the 2007
will was signed at a time when Decedent was in an emotionally distraught state shortly after
his wife had died. They contend that the collective actions of the caretakers, upon whom
Decedent had become dependant, resulted in Decedent completely rewriting his long-
expressed estate plan. Contestants claim the terms of the 2007 will are unjust and unnatural
when compared to Decedent’s previous wills, as they went from being 100 percent

                                              -6-
beneficiaries of a large estate to GCN receiving only a life estate in a farm.5

       Contestants do not claim that Proponents had anything to do with Decedent revising
his estate plan or that any of them exerted undue influence over Decedent. None of the
accused caretakers was named a beneficiary pursuant to the will.

       Contestants assert that the affidavits, interrogatory responses, and deposition
testimony submitted demonstrate that Proponents have failed to negate an essential element
of their claim of undue influence, or to show that Contestants cannot prove an essential
element of their claim at trial. Therefore, they argue that the burden of production has not
shifted to them. Contestants argue that even if the shift occurred, the record is replete with
examples of genuine issues of material fact in dispute. Thus, Contestants submit that
summary judgment was improperly granted.

       A valid will is a product of the free exercise of independent judgment by a person who
has the mental capacity to make a testamentary disposition. In re Estate of Elam, 738 S.W.2d
169, 171 (Tenn. 1987). As a general rule, it is presumed that undue influence does not enter
into the making of a will, and the burden of proving undue influence falls on the person
contesting the will. Hammond v. Union Planters Nat’l Bank, 222 S.W.2d 377, 383-84 (Tenn.
1949).

        The trial court in this matter properly observed that proof of a confidential relationship
is required to establish undue influence. The doctrine of undue influence is applicable only
where there is a confidential relationship with the testator whereby one party is able to
dominate and exercise undue influence over the testator. In re Estate of Brevard, 213 S.W.3d
298, 302 (Tenn. Ct. App. 2006) (citing Keasler v. Estate of Keasler, 973 S.W.2d 213, 219
(Tenn. Ct. App. 1997); Simmons v. Foster, 622 S.W.2d 838, 840 (Tenn. Ct. App. 1981)). A
confidential relationship is that relationship where confidence is placed by one in the other
and the recipient of that confidence is the dominant personality, with the ability, because of
that confidence, to influence and exercise dominion over the weaker or dominated party.
Bills v. Lindsay, 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993). In general terms, it is any
relationship that gives one person the ability to exercise dominion and control over another.
Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002). “The burden of proof regarding
a confidential relationship rests upon the party claiming the existence of such a relationship.”



        5
         Interestingly, the record reveals that Decedent’s 2000 will also gave GCN a life estate in the farm.
Additionally, Decedent’s 2004 will gave part of the estate to GCN and the remainder to Jimmy Norton.
Proponents assert that giving GCN a life estate in the farm so he could continue to use it for his lifetime is
not inconsistent with any statement by Decedent that GCN would be a beneficiary of his estate.

                                                     -7-
Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002).6

        Confidential relationships generally arise in two situations: (1) “legal relationships”
and (2) “family and other relationships.” Estate of Brevard, 213 S.W.3d at 302-03 (quoting
Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995)). In the “legal relationships”
context, a confidential relationship arises when there is some legal connection between the
dominant party and the weaker party, such as when a dominant party is granted a power of
attorney. This type of relationship is confidential per se. Id. “Family and other
relationships” are not confidential per se - to establish a confidential relationship in this
situation, contestants must prove the elements of “domination and control” in order to
establish that the free will of the weaker party has been destroyed and the will of the
dominant party has been substituted. Matlock, 902 S.W.2d at 385-86. To establish undue
influence, in addition to proving that a confidential relationship exists, contestants must
prove that through the confidential relationship, suspicious circumstances exist suggesting
the will did not occur as a result of the testator’s free and independent actions. Estate of
Hamilton v. Morris, 67 S.W.3d 786, 792 (Tenn. Ct. App. 2001).

        Undue influence is rarely proven by direct evidence, and Contestants concede that
they have no direct evidence that the caretakers exercised any undue influence over Decedent
with respect to the will. Without direct evidence, a person contesting a will must prove the
existence of more than one suspicious circumstances warranting a conclusion that the
testator’s will does not represent the testator’s free and independent act. Halle v.
Summerfield, 287 S.W.2d 57, 61 (Tenn. 1956); Kelley, 96 S.W.3d at 195; Estate of Hamilton,
67 S.W.3d at 792; Fell v. Rambo, 36 S.W.3d 837, 847 (Tenn. Ct. App. 2000). The
suspicious circumstances often relied upon to establish undue influence are: (1) the
existence of a confidential relationship between the testator and the beneficiary; (2) the
testator’s physical or mental deterioration; and (3) the beneficiary’s active involvement in
procuring the will. Elam, 738 S.W.2d at 173. Other recognized suspicious circumstances
include: (1) secrecy concerning the will’s existence; (2) the unjust or unnatural nature of the
will’s terms; (3) the testator being in an emotionally distraught state; and, (4) discrepancies
between the will and the testator’s expressed intentions. Mitchell v. Smith, 779 S.W.2d 384,
388 (Tenn. Ct. App. 1989). Generally, there is no prescribed type or number of suspicious
circumstances that must be found to invalidate a will.

      The confidential relationship does not need to involve a beneficiary, however, as
undue influence may be exercised by one other than a beneficiary. DeLapp v. Pratt, 152


        6
        In Estate of Brevard, 213 S.W.3d at 302 n. 5, we addressed the contention that a presumption of
undue influence can arise even in the absence of a confidential relationship. We observed that the greater
weight of authority requires a confidential relationship.

                                                   -8-
S.W.3d 530, 542 (Tenn. Ct. App. 2004); Estate of Glasgow v. Whittum, 106 S.W.3d 25, 31
(Tenn. Ct. App. 2002). “Confidential relationships can assume a variety of forms, and thus
the courts have been hesitant to define precisely what a confidential relationship is.” Kelley,
96 S.W.3d at 197 (citing Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App.
1974)). We have noted that a “fiduciary relation may be any kind which implies confidence,
as trustee and beneficiary, attorney and client, parent and child, guardian and ward, physician
and patient, nurse and invalid, confidential friend and adviser, indeed, any relation of
confidence between persons which gives one dominion or influence over the other.” Roberts
v. Chase, 166 S.W.2d 641, 650 (Tenn. Ct. App. 1942). As we noted in Estate of Glasgow:

       It is immaterial whether undue influence is exercised directly or indirectly. In
       determining whether undue influence is present, a central focus is on the
       means used and the effect upon the donor. The underlying theory of the
       doctrine is that the donor is induced by various means to execute an instrument
       that, in reality, is the will of another substituted for that of the donor. We
       specifically reject the contention that a beneficiary must be the one who exerts
       the undue influence.

Estate of Glasgow, 106 S.W.3d at 31.

       Upon review of the record before us, we find that the affidavits, interrogatory
responses, and depositions relied upon by Contestants are not sufficient to establish the
existence of a confidential relationship between the caretakers and Decedent at the time he
executed his will. By Contestants’ own admissions, the Decedent was independent-minded
and a competent businessman, not subject to influence by anyone in his business or personal
decisions. Contestants’ admissions are confirmed by Decedent’s long-time business
associates.

       As established by Proponents, Decedent availed himself of independent professional
advice and counsel in the preparation of his will. Prior to, at the time of, and following the
execution of his will in December 2007, the Decedent had the benefit of independent counsel
and advice from no less than five unrelated, objective professionals. None of Decedent’s
caretakers was present at the meetings at which Decedent and his professional advisors
discussed the changes Decedent wished to make to his estate plan. An independent attorney
drafted Decedent’s will and assisted him in executing it. All of Decedent’s professional
advisors were competent and well-respected in the community; none of them was in any way
associated with any of Decedent’s caretakers or with any of the beneficiaries of Decedent’s
will. Based upon the proof that the Decedent was an independent-minded person, not subject
to influence by outsiders, and given the fact he met on a number of occasions with
independent professionals, even if Contestants could establish the existence of a confidential

                                              -9-
relationship, the testator’s receipt of independent advice would rebut the inference or
presumption of undue influence that arises upon the proof of a confidential relationship. See,
e.g., Richmond v. Christian, 555 S.W..2d 105, 107-08 (Tenn. 1977).

       Because Proponents have negated Contestants’ claim that there was a confidential
relationship between the Decedent and any other person, Contestants’ undue influence claim
must fail. Consideration of other alleged suspicious circumstances is unnecessary. We
therefore uphold the trial court’s grant of summary judgment in favor of Proponents.


                                    V. CONCLUSION

       The judgment of the trial court is affirmed and this case is remanded. The costs on
appeal are assessed against the appellants, George C. Norton and Teresa R. Norton.


                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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