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In re Estate of Gertrude Bible Link

Court of Appeals of Tennessee, Nashville

February 22, 2017


          Session September 20, 2016

         Appeal from the Chancery Court for Marion County No. 7677, PR135 Jeffrey F. Stewart, Chancellor

         This is an appeal from a jury trial in a will contest. The jury returned a verdict finding that the contested will was valid. The contestants have appealed, raising numerous issues and arguing that the evidence presented does not support the jury's verdict. We affirm.

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

          Jackie Sharp, Jr. and Natalie R. Sharp, Nashville, Tennessee, for the appellants, Carlynn D. Newcom, Reed B. Durham, and Don E. Durham.

          Ronnie J. T. Blevins, II, Jasper, Tennessee, and Jared C. Smith, South Pittsburg, Tennessee, for the appellee, James Clifford Layne.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Richard H. Dinkins and Kenny Armstrong, JJ., joined.



         I. Background and Procedural History

         This is an action to contest the validity of a document purporting to be the last will and testament of Gertrude Bible Link. For clarity, we will briefly summarize Ms. Link's relevant family relationships before discussing the circumstances surrounding the document's execution and the procedural history of this case.

         Ms. Link was born on January 6, 1915. She graduated from Middle Tennessee State University and worked for many years as a schoolteacher in Marion County, Tennessee. She married Harlen Link in 1939, and they remained married until Mr. Link died in 1992. Although Ms. Link did not have any children, she maintained close relationships with her family. Ms. Link had a particularly close relationship with her younger sister, Cathryn Durham. Ms. Link and Ms. Durham attended college together and shared a life-long interest in gardening. They formed a local gardening club together and traveled to various flower and garden shows. Ms. Durham's children-Carlynn Newcom, Don Durham, and Reed Durham-also had close relationships with Ms. Link growing up. Clifford Layne is the son of Ms. Link's older sister, Bonnie Layne.[1] Mr. Layne has been a general sessions and municipal court judge in Marion County since 1974. As she grew older, Ms. Link relied on Mr. Layne for advice in ordering her legal and financial affairs.

         In 1989, Ms. Link approached Mr. Layne for legal advice, and he referred her to Zach Kelly, a local attorney with whom he had a personal and professional relationship. Mr. Kelly drafted a will for Ms. Link, and she executed it in May 1989. Ms. Link's 1989 will named Mr. Layne as executor of her estate and, in pertinent part, provided that if she survived her husband, her property would be distributed in equal shares to Cathryn Durham, Carlynn Newcom, Reed Durham, Donald Durham, and Clifford Layne.

         In 1996, Ms. Link asked Mr. Layne if he would be willing to serve as her attorney-in-fact. Once again, he referred her to Mr. Kelly. Mr. Kelly drafted a general power of attorney authorizing Mr. Layne to act on Ms. Link's behalf in all matters, and Ms. Link executed it in March 1996. At trial, Mr. Layne testified that he drove Ms. Link to Mr. Kelly's office to execute the power of attorney and waited in the lobby while she met with Mr. Kelly. Although the document was effective upon execution, there is no evidence that Mr. Layne acted as Ms. Link's attorney-in-fact prior to 2001.

         In 1998, Ms. Link executed the document at issue in this case. According to Mr. Layne, Ms. Link told him that she intended to make a new will that would leave all of her property to him with the exception of a $10, 000 devise to her church. Mr. Layne drove Ms. Link to Mr. Kelly's office where she met with Mr. Kelly alone while Mr. Layne waited in the lobby. A handwritten note purportedly written by Mr. Kelly was admitted as evidence at trial. In pertinent part, the note states:

3/5/98 Conf w/ Mrs. Gertrude Link
I met w/ her alone in my office.\
She was well aware of what she wanted to do.
If estate exceeds $300, 000 leave $10, 000 to church.
Leave everything else outright to Clifford Layne. He is to handle as he sees fit!!
I mentioned Betty but she said not at this time.

         On March 11, 1998, Ms. Link executed a document drafted by Mr. Kelly that provided, in pertinent part, as follows:


I, Gertrude B. Link, of Marion County, Tennessee, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all prior testamentary instruments.

         ARTICLE I

I direct my Executor: to pay all of my just debts, funeral expenses, costs of administration and taxes out of my general estate, as soon as practicable after my death.

         ARTICLE II

If the value of my personal estate, excluding the value of my real estate, personal effects, automobiles, clothing, jewelry, and household furnishings and furniture, is equal to or exceeds the sum of Three Hundred Thousand ($300, 000.00) Dollars, then I do hereby make the following devise:
A. To the First Baptist Church of Jasper, Tennessee, the sum of Ten Thousand ($10, 000.00) Dollars, to be utilized only for building and/or renovation purposes.

         ARTICLE III

I do hereby give, devise and bequeath all of the rest, residue and remainder of my estate, including both realty, and personalty, and wherever located, in fee simple and absolutely, to my nephew, James Clifford Layne.

         ARTICLE IV

I appoint my nephew, James Clifford Layne, as Executor of this my Last Will and Testament.

         Both pages of the two-page document bear the handwritten initials "GL, " and the second page bears Ms. Link's signature as "Testatrix." Mr. Kelly and his assistant, Danielle Steele, signed the document as witnesses to its execution and also signed an attached affidavit affirming that Ms. Link signed the will in their presence and that they attested the will in her presence and in the presence of each other. The affidavit bears the handwritten initials "GL" and reflects that it was notarized by Marty Murphy, another of Mr. Kelly's assistants. The document does not contain any reference to Cathryn Durham, Carlynn Newcom, Don Durham, or Reed Durham.

         In 2005, Cathryn Durham died. In 2007, with Ms. Link suffering from dementia, Mr. Layne authorized her admission to a nursing home and began using his power of attorney to exercise full control over her finances. From 2007 to 2012, Mr. Layne exercised his power of attorney to pay for the upkeep of Ms. Link's house, her nursing home expenses, and various other expenses from Ms. Link's funds. In 2012, with Ms. Link's health deteriorating further, Mr. Layne contacted Carlynn Newcom to discuss selling Ms. Link's house. Ms. Newcom agreed that they should sell the home if Ms. Link was not going to live in it again. Around that time, Mr. Layne cleaned out Ms. Link's house and threw away numerous documents and other items. At Ms. Link's direction, Mr. Layne contacted Carlynn Newcom, Don Durham, and Reed Durham prior to selling the house and allowed them to come take any items they wanted from it. Ms. Link died in December 2012.

         In January 2013, Mr. Layne filed a petition to probate Ms. Link's 1998 will. In May 2013, Carlynn Newcom, Don Durham, and Reed Durham (collectively, the "Contestants"), filed an amended complaint contesting the validity of the 1998 will. In the complaint, they alleged that the will was a forgery. Alternatively, they alleged that Ms. Link did not possess requisite testamentary capacity or testamentary intent when she signed the will and that the will was procured through undue influence or fraud.[2] They asserted that the 1998 will should be set aside and Ms. Link's estate should be distributed according to the terms of the 1989 will. Mr. Layne filed an answer denying the material allegations of the amended complaint, and the trial court entered a scheduling order that established various discovery deadlines.

         Following a period of discovery, the Contestants filed a motion for partial summary judgment asserting that undisputed material facts established (1) that Mr. Layne had a confidential relationship with Ms. Link prior to her execution of the 1998 will, (2) that Mr. Layne's close relationship with Mr. Kelly rendered Mr. Kelly incapable of providing Ms. Link with independent advice, and (3) that Mr. Layne prejudiced the Contestants by destroying documents relevant to their case. Mr. Layne opposed the motion, and the trial court denied it based on its conclusion that material facts were in dispute.

         The case was set for a jury trial scheduled to begin on July 21, 2015. The day before trial, Mr. Layne's attorney spoke with Mr. Kelly's wife, Elizabeth Kelly. Ms. Kelly informed Mr. Layne's attorney that Mr. Kelly would not be able to testify at trial due to his deteriorating health. She also informed him that she had photocopies of the handwritten notes Mr. Kelly wrote during his meeting with Ms. Link. Mr. Layne's attorney immediately notified the Contestants' attorneys of his intent to present Ms. Kelly as a witness regarding Mr. Kelly's unavailability and to present the handwritten notes as evidence that Ms. Link received independent advice regarding the will. The Contestants objected to the late-disclosed evidence at the outset of trial the following day. After listening to arguments from both sides, the trial judge noted that both parties could have attempted to depose Mr. Kelly or subpoena his records related to Ms. Link's 1998 will and chose not to do so. The judge ruled that Ms. Kelly would be permitted to testify regarding Mr. Kelly's health but indicated that he would reserve ruling on the admissibility of the handwritten notes. Thereafter, the parties presented their proof to the jury.

         Initially, Mr. Layne presented evidence intending to demonstrate that the 1998 will was executed in compliance with the formalities of law. To that end, Ms. Kelly testified that Mr. Kelly was not able to testify because he suffered a stroke in 2011 that left him partially paralyzed and severely affected his ability to communicate. She explained that, as a result of his condition, she spent an inordinate amount of time each day trying to communicate with him to accomplish simple tasks. Ms. Kelly also identified Mr. Kelly's signature on the 1998 will. In light of Ms. Kelly's testimony, the trial court later indicated its satisfaction that Mr. Kelly was not an available witness. The will's other subscribing witness and the notary public who acknowledged the witnesses signatures also testified. Ms. Murphy and Ms. Steele both testified that Mr. Kelly was very professional and followed the same strict protocol every time he drafted a will for a client. They explained that, before drafting the will, Mr. Kelly always met with the client alone in his office to discuss the client's intentions. When the client returned to execute the will, Mr. Kelly allowed only the client, the necessary witnesses, and the notary to be in the room. Any person that accompanied the client to the office was required to wait outside. Although neither Ms. Murphy nor Ms. Steele specifically remembered the execution of Ms. Link's will in 1998, they identified their own signatures and Mr. Kelly's signature on the document. As such, the trial court admitted Ms. Link's 1998 will into evidence.

         Next, the Contestants presented evidence aimed at demonstrating that the document purporting to be Ms. Link's 1998 will was invalid. Carlynn Newcom testified at length regarding the close relationship Ms. Link shared with her mother and maintained that it never changed. She produced a copy of Ms. Link's 1989 will, which, she testified, Ms. Link gave to her shortly after executing it. Ms. Newcom testified that she visited Ms. Link in the nursing home every week, and Ms. Link never mentioned changing her 1989 will or having another will. She explained that she and her brothers first learned about the 1998 will after Ms. Link died when Mr. Layne told them that she left everything to him. Although she acknowledged that Ms. Link did not discuss her finances openly, Ms. Newcom maintained that Ms. Link would not have disinherited her family without saying something. Nevertheless, she admitted that she had no evidence that Ms. Link's 1998 will was invalid. Ms. Newcom acknowledged that Ms. Link had her wits about her "[m]ost of the time" in 1998 and that, to her knowledge, Ms. Link was not afraid of Mr. Layne or under any emotional distress. Don Durham and Reed Durham also testified, and their testimony differed little in substance from Ms. Newcom's testimony. Both testified that Ms. Link did not discuss her finances with them but maintained that she would not have disinherited their mother. Don Durham testified that Ms. Link appeared to have her wits about her in 2001. Similarly, Reed Durham testified that she appeared to have her wits about her in 1998. Reed Durham also testified that Ms. Link thought "very highly" of and trusted Mr. Layne. Ryan Phillips testified that he lived near Ms. Link and began doing odd jobs for her about once a week starting in 1997. Mr. Phillips testified that he never heard Ms. Link mention Mr. Layne in the eight or nine years he worked for her, although she spoke often about Ms. Durham, who he knew from church. He testified that Ms. Link appeared to be in her right mind, although she seemed "elderly." He explained that Ms. Link was trusting and that someone probably could have taken advantage of her. Fred Newcom, Carlynn Newcom's husband, testified that Mr. Layne told him in 2005 that he did not know anything about Ms. Link's finances. He testified that, in a later conversation, Mr. Layne told him that he had stopped visiting Ms. Link in the nursing home.

         The Contestants also presented testimony of Mr. Layne. Mr. Layne agreed that Ms. Link was very close with Ms. Durham, but testified that he grew close with Ms. Link in her later years. He admitted, however, that his only evidence of their relationship was her 1996 power of attorney and her 1998 will. Mr. Layne was questioned at length regarding his failure to produce various documents that were presumably in Ms. Link's possession during her lifetime. Mr. Layne acknowledged that he did not know what happened to Ms. Link's driver's license, marriage license, or credit card receipts. He testified that Ms. Link had drawers full of check stubs, bank statements, and tax returns dating back to the 1940s and explained that he threw away numerous documents and other items when he was preparing Ms. Link's house to be sold. Nevertheless, he maintained that he did not throw away anything he considered to be important and did not destroy any documents in anticipation of the litigation. Mr. Layne testified that Ms. Link told him what would be in her 1998 will before she met with Mr. Kelly about it. He testified that he drove her to Mr. Kelly's office and waited in the lobby while she met with him. He acknowledged that he could not produce any documentation showing who paid Mr. Kelly to draft Ms. Link's 1998 will but explained that Ms. Link likely had because she handled her own transactions at the time. Mr. Layne acknowledged that he had been friends with Mr. Kelly for more than 40 years. He testified that the two had been on fishing trips together in the past but maintained that they did not take any trips together in the 10 years prior to 1998. He also testified that Mr. Kelly had served as his personal attorney in various matters through the years. Mr. Layne testified that he visited Ms. Link every week when she was in the nursing home and felt obligated to take greater care of her knowing the contents of her 1998 will. When asked why he never told anyone about Ms. Link's 1998 will, Mr. Layne answered that it was not his information to tell.

         After the Contestants concluded the presentation of their case-in-chief, Mr. Layne presented additional witness testimony. Ronald Case testified that he was the director of Ms. Link's nursing home and served as her chaplain while she was there. Mr. Case testified that he saw Mr. Layne at the nursing home every week but that he did not recognize the Contestants. Joyce Ann Parker testified that she was Ms. Link's niece and a first cousin of Mr. Layne and the Contestants. Ms. Parker testified that she had frequently visited Ms. Link's nursing home to see her mother-in-law and saw Mr. Layne and his wife there many times. She testified that she saw Carlynn Newcom there once but stated that she never saw Don or Reed Durham. Gene Rountree testified that he was employed by Ms. Link's nursing home and that he saw Mr. Layne visiting her there "periodically." Mr. Rountree testified that he did not recognize any of the Contestants.

         At the end of the second day of trial, the trial court excused the jury and held an evidentiary hearing on the admissibility of the photocopied handwritten notes purportedly written by Mr. Kelly during his meeting with Ms. Link. During the hearing, Ms. Murphy identified Mr. Kelly's handwriting in the notes and testified that they were typical of the notes Mr. Kelly would write when meeting with a client. She explained that, at some point, Mr. Kelly's files were scanned onto a computer and the original copies were destroyed. Ms. Kelly also identified Mr. Kelly's handwriting in the notes. She explained that, when Mr. Kelly closed his law office, she scanned all of his files onto a computer and shredded the originals. After hearing their testimony and considering the arguments of the parties, the trial court ruled that the handwritten notes were to be admitted as evidence. When the jury returned the following morning, Ms. Kelly authenticated the handwritten notes and they were admitted into evidence.

         After the conclusion of proof and closing arguments, the trial court read its instructions to the jury. The judge instructed the jury on the burdens applicable to each of the grounds listed in the Contestants' amended complaint for contesting Ms. Link's 1998 will: forgery, lack of testamentary capacity, lack of testamentary intent, undue influence, and fraud. The jury was given a verdict form requiring it to answer certain questions related to each of the grounds instructed by the judge and was excused to deliberate at 1:00 pm. At 4:39 pm, the judge informed the parties' attorneys that he had received word from the bailiff that the jury did not expect to reach a verdict that night and that several of the jurors would be unable to return the following day. The judge explained that he could declare a mistrial but suggested that he could give the jury "a little dynamite charge" to emphasize the importance of their efforts. The attorneys did not object to the court giving the jury a supplemental instruction, and the jury was brought back into the courtroom. In its supplemental instruction, the judge noted the time and money each side had invested in trying the case and encouraged the jurors to be willing to reexamine their own views. Sometime thereafter, the parties' attorneys notified the judge that they would accept a majority verdict, but the judge encouraged them to give the jury more time to reach a unanimous verdict.[3] At 6:32 pm, the jury announced its unanimous verdict upholding Ms. Link's 1998 will. Specifically, the jury found that (1) Ms. Link had the testamentary capacity to execute the contested will, (2) Ms. Link had the testamentary intent to execute the contested will, (3) the contested will was not forged, (4) the contested will was not the product of undue influence, (5) the contested will was not the product of fraud, and (6) the document executed on March 11, 1998 was Ms. Link's valid, executed last will and testament.

         On August 21, 2015, the Contestants filed a post-judgment motion for a judgment notwithstanding the verdict or new trial. In the motion, they argued that the trial court should enter a judgment notwithstanding the verdict because no material evidence was presented at trial to support the jury's verdict. Alternatively, they argued that they were entitled to a new trial because the jury's verdict was contrary to the weight of the evidence, contrary to law, and the result of errors committed by the trial court. They proceeded to list 43 alleged errors made by the trial court that they argued impaired their right to a fair trial and resulted in an erroneous verdict.

         The trial court held a hearing on the Contestants' post-judgment motion on October 6, 2015. Although the judge declined to address each of the 43 errors listed in their motion, he was particularly concerned with one of them-"38. The trial judge engaged in ex parte communications with the jury." He stated that he had, in fact, communicated with the jury off the record and outside the presence of the attorneys. He explained that, in response to a report of possible juror intimidation, he reiterated his earlier jury instructions by encouraging the juror to consider the opinions of others. He further explained that, immediately after the incident, he disclosed it to the attorneys for both parties and neither party objected. He stated that, although he regretted not putting the exchange on the record, he did not think it warranted a new trial. The trial court entered an order denying the Contestants' post-judgment motion on November 9, 2015. The Contestants timely filed an appeal to this Court on November 30, 2015.

         II. Issues

The Contestants raise issues for our review, which we restate as follows:
1. Whether the trial court committed reversible error in denying the Contestants' motions for partial summary judgment and judgment notwithstanding the verdict.
2. Whether the trial court abused its discretion in controlling the course of trial and witness examination.
3. Whether the trial court abused its discretion in its evidentiary rulings.
4. Whether the trial court committed reversible error in delivering inaccurate and incomplete jury instructions and in using the ...

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