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McMillin v. McMillin

Court of Appeals of Tennessee, Knoxville

March 31, 2015


Assigned on Briefs December 10, 2014

Appeal from the Chancery Court for Knox County No. 184965-2 Daryl R. Fansler, Chancellor

Paul L. McMillin, Knoxville, Tennessee, Pro Se.

Johneta McMillin, Knoxville, Tennessee, Pro Se.

Bruce Hill, Sevierville, Tennessee, for the appellees, James McMillin and Iris Davenport.

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., C.J., and D. MICHAEL SwiNEY, J., joined.



I. Factual and Procedural Background

This case involves the issue of whether the eighty-two-year-old decedent, Dorothy Jean McMillin ("Decedent"), was acting under the undue influence of her adult son, Paul McMillin, when she made him joint owner of her bank accounts in the months preceding her death in November 2012. Decedent was the mother of three other adult children: James McMillin, Iris Davenport, and Linda Cole.[1] In the spring of 2012, Decedent was living alone in her home when Paul[2] came to visit and discovered her lying on the floor, unconscious and unresponsive. Decedent was diabetic and suffered from Chronic Obstructive Pulmonary Disease, congestive heart failure, and numerous other physical maladies. She was known to be reclusive and seldom left her home or allowed visitors inside. Upon Paul's discovery of Decedent's unresponsive condition, she was immediately taken to the hospital by ambulance, where her blood sugar level was determined to be dangerously high.

Following her release from the hospital, Decedent convalesced in a rehabilitation center for a few weeks while regaining her strength. During Decedent's absence from her home, Paul and his wife, Johneta, assisted by Paul's sister, Ms. Davenport, cleaned Decedent's home and replaced the carpet therein, having discovered the home to be in a serious state of disorder. Decedent was able to return to her home, albeit with assistance, for a period of time. Paul helped care for Decedent, transporting her wherever needed. According to Paul, Decedent's mental state was good, affording Decedent complete control of her personal affairs and finances. As explained, he complied with Decedent's directions to take her on various errands, including trips to the bank so that she could withdraw money on occasion.

In early June 2012, Decedent asked Paul to transport her to the office of her attorney, Robert Wilkinson. Upon doing so, Paul learned that Decedent wished to change her last will and testament to name Paul to be her personal representative. Her prior will designated James to serve in such capacity. Regarding the distribution of her estate, Decedent expressed a desire that her children share equally. Decedent also directed Mr. Wilkinson to change her power of attorney so as to designate Paul as her attorney-in-fact, rather than James. Mr. Wilkinson drafted Decedent's will and power of attorney according to her expressed desire, facilitating Decedent's execution of these documents on June 26, 2012.

At approximately the same time, Decedent asked Paul to transport her to two banks wherein she maintained accounts solely in her name. While at the financial institutions, Decedent changed those accounts to be titled jointly with Paul with right of survivorship. According to Paul, Decedent also indicated that she wished to build a new home on the six-acre tract of real property that contained her existing home. As plans were selected and purchased, construction began on the new home, with Paul acting as general contractor. Soon Paul withdrew large sums of money from the joint bank accounts, claiming the funds were utilized for the construction of Decedent's new home.

Decedent eventually fell ill again and required another hospital visit, followed by an additional stay in the rehabilitation center. Upon her release, Decedent moved in with Paul and Ms. McMillin. Although construction on her new home continued, Decedent unfortunately did not live to see the home completed. She passed away on November 18, 2012. Following Decedent's passing, Paul continued to withdraw money from the joint bank accounts as construction of the home proceeded. He also presented to the court Decedent's will for probate and was granted letters testamentary. As personal representative, Paul distributed approximately $170, 000 to himself and $170, 000 to each of his three siblings from Decedent's estate, in accordance with the provisions of the will.

On March 28, 2013, siblings James and Ms. Davenport (collectively "Plaintiffs") filed the instant action against Paul and Ms. McMillin (collectively "Defendants"). Plaintiffs asserted that Paul had a confidential relationship with Decedent and exercised undue influence over her. According to Plaintiffs, Decedent suffered from dementia and other serious illnesses during the months before her death, making her susceptible to such influence. Plaintiffs claimed that Paul had convinced Decedent to change the ownership of her bank accounts, making them jointly owned with Paul with right of survivorship. As Paul had withdrawn the money from these accounts and placed the funds in his joint account with Ms. McMillin, Plaintiffs also asserted that a constructive trust should be placed on those funds and that all of the funds should ultimately be reimbursed to Decedent's estate.

A jury trial was conducted on February 25 and 26, 2014. Defendants appeared and participated as self-represented during the trial. Multiple witnesses testified, including, inter alia, all four siblings, Mr. Wilkinson, bank representatives, and two of Decedent's doctors. Following deliberations, the jury returned a verdict in favor the Plaintiffs in the amount of $284, 800. Defendants filed separate motions for new trial, which the trial court denied. As the court determined that there existed more than sufficient evidence to support the jury's verdict, it affirmed the verdict as thirteenth juror. Defendants timely filed notices of appeal.[3]

II. Issues Presented

Paul McMillin raises the following issues for our review, which we have restated slightly:

1. Whether the jury erred in finding that a confidential relationship existed between Paul McMillin and Decedent whereby he exercised undue influence over her.
2. Whether Paul McMillin received a benefit by removing funds from a jointly held financial account.

Ms. McMillin raises the following additional issues, which we have also restated:

3. Whether the trial court erred in failing to charge the jury regarding certain banking laws applicable ...

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