                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 4, 2011 Session

  JANICE DAVIS BOELTER and RICHARD DAVIS v. JACKIE CURTUS
                      REAGAN, ET AL.

              Direct Appeal from the Chancery Court for Wilson County
                       No. 09-145     C. K. Smith, Chancellor


                  No. M2010-01354-COA-R3-CV - Filed May 18, 2011


Decedent executed a will in 1988 which could not be found upon her death. Decedent’s step-
children sought to establish a copy of the 1988 will as Decedent’s last will and testament, but
the trial court found that they had failed to rebut the presumption that the will had been
destroyed and revoked. We find that Appellants failed to prove that Decedent did not revoke
her will. Accordingly, we affirm the trial court’s involuntary dismissal of Appellants’ claim
as well as its order that Decedent’s Estate be administered as an intestate estate.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Michael R. Jennings, Lebanon, Tennessee, for the appellants, Janice Davis Boelter and
Richard Davis

Brody N. Kane, Angel P. Kane, Lebanon, Tennessee, for the appellee, Jackie Curtus Reagan
                                              OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

       Thomas and Erma Davis (now “Mrs. Reagan”) married in 1988. That same year, Mrs.
Reagan executed a will leaving her property to Mr. Davis, but if he failed to survive her, then
one-half to her surviving siblings and one-half to Mr. Davis’ children.1 Attorney Michael
R. Jennings was nominated as executor.

        Mr. Davis died on October 26, 1988, and Mrs. Reagan married Appellee Jackie Curtus
Reagan (“Mr. Reagan”) in 1994. She died on December 4, 2007. In January 2008, Mr.
Reagan filed a “Petition for Administration of Estate and Granting of Letters of
Administration,” claiming to be the sole residuary beneficiary of Mrs. Reagan’s estate
because despite his “diligent search,” no will had been found. After learning of Mr.
Reagan’s petition, attorney Jennings retrieved a copy of Mrs. Reagan’s 1988 will from his
files and brought it to the probate court’s attention. Mr. Davis’ children, Appellants Janice
Davis Boelter and Richard Davis, then filed a complaint in the probate court seeking to
establish the 1988 copy as Mrs. Reagan’s Last Will and Testament. Following a hearing, the
probate court found that because the original will was not found upon her death, it was
presumed to have been destroyed and revoked. Appellants, the probate court found, had
failed to rebut such presumption, and therefore, it ordered that her Estate be administered as
an intestate estate. Appellants appealed to the chancery court, but it likewise found that
Appellants had failed to “provide any proof at all” to overcome the presumption that Mrs.
Reagan’s will had been destroyed in order to revoke it. Appellants subsequently appealed
to this Court.


                                      II.   I SSUES P RESENTED

        Appellants present the following issues for review:

1.      Did the trial court err in directing a verdict for the Appellees;

2.      Did the trial court err in failing to admit the Last Will and Testament of Erma Mae
        Reagan to probate;



       1
         Mrs. Reagan’s 1988 will, upon Mr. Davis’ predeceasing her, bequeaths one-half of her property to
“my husband’s children,” rather than to “Mr. Davis’” children. No issue is raised as to those properly
included in this class.

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3.     Did the trial court err in finding that the Estate shall continue to be administered as
       an intestate estate for administration purposes by Jackie Curtus Reagan; and

4.     Did the trial court err in its rulings on the admission of evidence by excluding the tape
       marked as Exhibit 2 for identification only and the testimony of the Appellee about
       the real estate listed on the Inheritance Tax Return.

For the following reasons, we affirm the decision of the chancery court.


                                     III.   D ISCUSSION

          A. Motion for Directed Verdict v. Motion for Involuntary Dismissal

       This case was tried by the trial judge without a jury, and at the conclusion of
Appellants’ proof, the trial court, upon Mr. Reagan’s request, granted a motion for directed
verdict. Appellants argue on appeal that this was procedurally incorrect, and therefore, that
the chancery court’s decision must be reversed and the case remanded for a new trial.

       “[M]otions for directed verdicts have no place in bench trials, while Tenn. R. Civ. P.
41.02(2) motions [for involuntary dismissal] have no place in jury trials.” Burton v. Warren
Farmers Coop., 129 S.W.3d 513, 520 (Tenn. Ct. App. 2002) (citing Cunningham v. Shelton
Sec. Serv., Inc., 46 S.W.3d 131, 135 n.1 (Tenn. 2001); City of Columbia v. C.F.W. Constr.
Co., 557 S.W.2d 734, 740 (Tenn. 1977); Scott v. Pulley, 705 S.W.2d 666, 672 (Tenn. Ct.
App. 1985)). The two motions serve different purposes and require different analyses. Id.

       “A Tenn. R. Civ. P. 50 motion for directed verdict provides a vehicle for deciding
questions of law.” Burton, 29 S.W.3d at 520. The trial judge does not weigh the evidence
or assess witness credibility. Id. (citing Conatser v. Clarksville Coca-Cola Bottling Co., 920
S.W.2d 646, 647 (Tenn. 1995); Richardson v. Miller, 44 S.W.3d 1, 30 (Tenn. Ct. App.
2000)). Instead, he reviews the evidence in the light most favorable to the non-moving party
in order to determine whether sufficient evidence has been presented to create an issue of fact
for the jury to decide. Id. (citing Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn.
2000); Addaman v. Lanford, 46 S.W.3d 199, 203 (Tenn. Ct. App. 2000); Spann v. Abraham,
36 S.W.3d 452, 462 (Tenn. Ct. App. 1999); Ingram v. Earthman, 993 S.W.2d 611, 626
(Tenn. Ct. App. 1998)). “A jury issue has been created if there is any doubt regarding the
conclusions to be drawn from the evidence . . . or if reasonable persons could draw different
conclusions from the evidence.” Id. (citations omitted). However, where reasonable minds
could reach only one conclusion, no jury issue is raised. Id. (citing Eaton v. McLain, 891
S.W.2d 587, 590 (Tenn. 1994); Tompkins v. Annie's Nannies, Inc., 59 S.W.3d 669, 673

                                              -3-
(Tenn. Ct. App. 2000)).

         Motions for involuntary dismissal, however, “challenge the sufficiency of the
plaintiff’s proof.” Id. (citing Smith v. Inman Realty Co., 846 S.W.2d 819, 821 (Tenn. Ct.
App. 1992); Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn. Ct. App. 1979)). A dismissal
pursuant to Tenn. R. Civ. P. 41.02(2) is appropriate if, “based on the law and the evidence,
the plaintiff has failed to demonstrate a right to the relief it is seeking.” Id. (citing City of
Columbia, 557 S.W.2d at 740). Motions for involuntary dismissal require less certainty than
do motions for directed verdict. Id. (citing Smith, 846 S.W.2d at 822). In deciding a Rule
41.02(2) motion to dismiss, the trial court “need only impartially weigh and evaluate the
plaintiff’s evidence just as it would after all the parties had concluded their cases and may
dismiss the plaintiff’s claims if the plaintiff has failed to make out a prima facie case by a
preponderance of the evidence.” Morris v. Morris, No. 02A01-9610-CH-00236, 1997 WL
703379, at *3 (Tenn. Ct. App. Nov. 12, 1997) (citing Thompson v. Adcox, 63 S.W.3d 783,
791 (Tenn. Ct. App. 2001)).

       This case was a nonjury trial in which Mr. Reagan moved the trial court to direct a
verdict in his favor at the close of Appellants’ proof. Procedurally, this was an inappropriate
motion. The appropriate motion was one pursuant to Tennessee Rule of Civil Procedure
41.02(2), a motion for involuntary dismissal. However, Appellees contend that the trial
court, in essence, ruled on a motion to dismiss, and we agree. The trial court’s order
demonstrates that Appellants’ claim was dismissed for insufficient proof–Appellants failed
to provide “any proof” to rebut the presumption that the 1988 will was destroyed and thereby
revoked. Because the trial court properly analyzed Appellees’ motion as one for involuntary
dismissal, we refuse to elevate form over substance, and therefore reject Appellants’
argument that the decision must be reversed on this basis.

        In reviewing a trial court’s disposition of a motion for involuntary dismissal, our
scope of review is pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure.
Burton, 129 S.W.3d at 521. Tennessee Rule of Appellate Procedure 13(d) requires appellate
courts to defer to a trial court’s findings of fact. Boote v. Shivers, 198 S.W.3d 732, 740
(Tenn. Ct. App. 2005) (citing Fell v. Rambo 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000);
Taylor v. Trans Aero Corp., 924 S.W.2d 109, 112 (Tenn. Ct. App. 1995)). Thus, an appellate
court must “leave a trial court’s finding of fact undisturbed unless it determines that the
aggregate weight of the evidence demonstrates that a finding of fact other than the one found
by the trial court is more probably true.” Id. (citing Estate of Haynes v. Braden, 835 S.W.2d
19, 20 (Tenn. Ct. App. 1992)). “For the evidence to preponderate against a trial court’s
finding of fact, it must support another finding of fact with greater convincing effect.” Id.
This Court must give great weight to the trial court’s assessment of the evidence as it is in
a better position to evaluate witness credibility. Id. (citing Thompson, 63 S.W.3d at 787).

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The trial court’s conclusions of law are reviewed de novo with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn. 2001) (citing Daron v. Dep't of Corr., 44 S.W.3d 478, 480 (Tenn. 2001); Johnson v.
Johnson, 37 S.W.3d 892, 894 (Tenn. 2001)).

                         B.   Disposition of Involuntary Dismissal

       Having determined that the trial court granted an involuntary dismissal of Appellants’
claims, we must determine whether such dismissal was appropriate.

        “[T]he fact that a will cannot be found after a due and proper search raises a
presumption that the testator himself destroyed the will.” In re Estate of West, 729 S.W.2d
676, 678 (Tenn. Ct. App. 1987) (citing Shrum v. Powell, 604 S.W.2d 869 (Tenn. Ct. App.
1980); Haven v. Wrinkle, 195 S.W.2d 787 (Tenn. Ct. App. 1945)). To establish that a will
was not intentionally destroyed, the proponent of a lost will must show “(1) the fact that the
will was executed in accordance with the forms of law, (2) the substance or contents of the
will, and (3) that the will has not been revoked, and that it is lost or destroyed or cannot be
found after a due and proper search.” Id. (citing Morris v. Swaney, 54 Tenn. 591 (1872);
Sanders v. McClanahan, 442 S.W.2d 664 (Tenn. Ct. App. 1969)). Each element must be
proven by “‘the clearest and most stringent evidence,’ or by ‘clear, cogent and convincing
proof.’” In re Estate of Cockrill, No. M2010-00663-COA-R3-CV, 2010 WL 4939950, at *3
(Tenn. Ct. App. Dec. 2, 2010) perm. app. denied (Tenn. Mar. 15, 2011) (quoting Sanders,
442 S.W.2d at 667).

       The parties do not dispute that the first two elements have been met. However, Mr.
Reagan contends, and the trial court found, that Appellants failed to prove that Mrs. Reagan
did not revoke her 1988 will. Appellants claim that this finding was error based upon the
testimony presented at trial.

       According to statements made by Attorney Jennings, Mr. Davis and Mrs. Reagan
executed similar wills in 1988, leaving everything to the surviving spouse, but if the other
did not survive, then one-half to Mrs. Reagan’s siblings and one-half to Mr. Davis’ children.
After Mr. Davis’ death in 1988, Appellants unsuccessfully contested Mr. Davis’ will.
According to Appellant Richard Davis, he spoke with Mrs. Reagan shortly after Mr. Davis’
death and Mrs. Reagan stated that “that’s the way your father wanted it, . . . after I’m dead,
you and your sister[, Appellant Janice Davis Boelter,] get your part then.” Mr. Davis testified
that based upon this conversation he believed that he would “inherit from her will[.]”
However, both Appellants acknowledged that they had not spoken with Mrs. Reagan in over
a decade prior to her death, and that other than the copy of the 1988 will, they had no proof
that Mrs. Reagan wanted any portion of her estate to pass to them.

                                              -5-
        Appellants also heavily rely upon the testimony of Mrs. Reagan’s sister, Linda
Stembridge-Smith, who described a conversation with Mrs. Reagan approximately two
months prior to her death. Ms. Stembridge-Smith asked Mrs. Reagan, “have you got
everything fixed like you want it?” Mrs. Reagan replied, “I’ve got it all fixed like I want it.”
From that statement, Ms. Stembridge-Smith “figured that [Mrs. Reagan] had her wills and
stuff fixed the way that she wanted it, because [she] was with [Mrs. Reagan] and Tom Davis
when they fixed the [1988] wills. And that’s the way I figured that she had left it.” She
conceded, however, that she had not seen the 1988 will since its execution.

       Appellants also called Mr. Reagan to testify. He stated that Mrs. Reagan told him that
she had destroyed the 1988 will, although he did not witness its destruction, and that an
attorney had advised her that she did not need to execute a new will as everything “would
automatically revert down to [him.]” He further testified that Mrs. Reagan had told him
where she kept her important papers, and that after her death he found deeds and other court
documents there, but despite a “diligent search,” found no will. He claimed that during their
marriage, Mrs. Reagan had no contact with Appellants, and that “[s]he indicated to [him] she
didn’t want [Appellants] to get nothing, ‘cause they had spent their inheritance on lawyer’s
fees when they contested their daddy’s will.” 2

        We find that these statements do not prove that Mrs. Reagan’s 1988 will was not
revoked, and therefore, we cannot find that a prima facie case of a lost will has been
established. Mrs. Reagan’s alleged statement that Appellant Mr. Davis would “get [his] part”
upon her death was made prior to her marriage to Mr. Reagan and more than a decade prior
to her death. Moreover, her alleged statement that she had everything “fixed like [she]
want[ed] it” could imply that she intended the 1988 will to remain in effect, but it could just
as easily describe her satisfaction with having destroyed the will such that Mr. Reagan would
be the sole beneficiary of her estate. We agree with the trial court that the testimony elicited
at trial simply fails to prove that Mrs. Reagan did not revoke her will. Accordingly, we
affirm the trial court’s involuntary dismissal of Appellants’ claim as well as its order that
Decedent’s Estate be administered as an intestate estate.

                                      C.    Exclusion of Evidence

      Finally, we address Appellants’ arguments that the trial court improperly excluded
evidence. At trial, Appellants attempted to introduce a taped answering machine message,
which they alleged was left by Mr. Reagan to Appellant Richard Davis “saying we don’t


        2
        The trial court specifically found that “Ms. Reagan and her step-children, Janice Davis Boelter and
Richard Davis[,] lacked a loving relationship and in fact the proof was that they had a strained relationship.”


                                                     -6-
need to go to court. We don’t need to go into this.” Appellee objected for lack of a
foundation: the caller apparently did not state his name, Appellant Davis testified that he
“just assume[d] that it was Mr. Reagan [who left the message]” as he “didn’t really know his
voice[,]” and Mr. Reagan testified that he did not leave the message. The trial court excluded
the tape, finding it irrelevant. However, Appellants contend that “an inference could be
drawn from that tape that Jackie Curtus Reagan was worried about what could happen if this
matter proceeded to trial.”

        The trial court also excluded, as irrelevant, proof regarding four parcels of real estate
listed on Mrs. Reagan’s Inheritance Tax Return. Appellants argue that “[t]he value of these
properties, and the fact that one burned, are very relevant to show who has the most to lose
by the Court admitting the copy of the Last Will and Testament of [Mrs. Reagan] to probate.”

        “[T]he admissibility of evidence is within the sound discretion of the trial court.”
Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (citing Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992)). A trial court’s decision
to admit or exclude evidence will be overturned only where an abuse of discretion is found.
Id. (citing Otis, 850 S.W.2d at 442). A trial court abuses its discretion “only when it
‘applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or
reasoning that cause[s] an injustice to the party complaining.’” Id. (quoting State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999)). Because we agree that the audiotape and the real estate
information are irrelevant to the issue of the will’s revocation, we find that the trial court did
not abuse its discretion in excluding such.




                                      IV.   C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to Appellants, Janice Davis Boelter and Richard Davis, and their
surety, for which execution may issue if necessary.

                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.




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