TAMALA TEAGUE, ET AL.
GARNETTE KIDD, ET AL.
Session April 18, 2017
from the Chancery Court for Polk County No. 2013-CV-18 Jerri
fraudulent conveyance action, a trial by jury resulted in
judgment for decedent's estate against defendants.
Defendants filed a motion for a new trial asserting that: (1)
the trial court erred in failing to grant a mistrial after
counsel for decedent's estate made a comment about one of
the defendant's credibility from "past cases"
purportedly in the presence of the jury; and (2) no evidence
supports the jury verdict. The trial court denied the
post-trial motion and affirmed the jury verdict. Defendants
appealed. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
William J. Brown, Cleveland, Tennessee, for the appellants,
Garnette Kidd, and William Kidd.
D. Lewis, Chattanooga, Tennessee and R. Prince Miller, Jr.,
Cleveland, Tennessee, for the appellee, Tamala Teague.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Charles D. Susano, and Thomas R. Frierson,
II, JJ, joined.
STEVEN STAFFORD, JUDGE
the second case involving the same parties. In Teague v.
Kidd, No. E2011-02363-COA-R3-CV, 2012 WL 5869637 (Tenn.
Ct. App. Nov. 21, 2012) ("Teague I"), the
Administrator of Lola Lee Duggan's ("Decedent")
estate sued Garnette Kidd ("Ms. Kidd"),
Decedent's daughter and her attorney-in-fact, and William
Kidd ("Mr. Kidd, " or, together with Ms. Kidd,
"Appellants"), Ms. Kidd's husband, in February
2009 in the Polk County Chancery Court for breach of
fiduciary duty and misappropriation of Decedent's funds.
While the litigation was pending, the Administrator died, and
Plaintiff/Appellee Tamala Teague ("Appellee")
subsequently replaced the Administrator as successor personal
representative for Decedent's estate. After a bench
trial, the trial court entered judgment against Appellants in
the amount of $267, 305.31. On appeal, this Court affirmed
liability with respect to Ms. Kidd but reversed the trial
court's finding with respect to Mr. Kidd because Mr. Kidd
did not owe a fiduciary duty to Decedent. As a result, this
Court, after appropriate credits, modified the judgment
amount to $196, 731.48,  the total owed by Ms. Kidd
the pendency of Teague I, on October 29, 2009,
before judgment had been obtained, Ms. Kidd combined an
individual certificate of deposit ("CD") owned
solely by her in the amount of $46, 817.55 with a CD owned by
Mr. Kidd in the amount of $50, 999.76, to create a single new
joint CD in the amount of $97, 853.25 with right of
survivorship, at the Peoples Bank of East Tennessee
("the bank"). After Teague I was finalized
on April 30, 2013, Appellee filed the instant suit in the
trial court against Appellants on the same day, alleging
fraudulent conveyance pursuant to the Uniform Fraudulent
Transfer Act ("UFTA"), Tennessee Code Annotated
sections 36-3-301 et seq., based on Appellants'
act of combining their individual CDs, and seeking to set
aside the consolidation. The complaint alleged that Appellee,
as judgment creditor, could not recover Ms. Kidd's funds
that had been commingled because the funds were purportedly
held as a joint account with right of survivorship. Appellee,
by affidavit, also requested that a temporary restraining
order be issued in order to enjoin Appellants from
dissipating the assets in their jointly-owned CD pending
further hearing. As a result, the trial court issued a
temporary injunction on May 3, 2013, enjoining Appellants
from "dissipate[ing], spend[ing], or liquidat[ing] [the
jointly-owned CD] in [the bank]." Appellants thereafter
filed an answer, denying all material allegations, and a
motion to dissolve the temporary restraining order. The trial
court subsequently denied the motion to dissolve the
temporary restraining order.
contentious filings ensued prior to the trial in the instant
case. For one, Appellee noticed a deposition for Ms. Kidd and
Mr. Kidd. According to Appellants' brief, Appellants
filed two motions to quash the deposition for Ms. Kidd,
citing her mental conditions and presented an affidavit and
deposition of Ms. Kidd's psychiatrist. The trial court
entered an order on April 12, 2016, finding that Ms. Kidd
"would suffer psychiatric harm if she was required to
testify either at a deposition or at trial." Because the
trial court could not require Ms. Kidd to testify at a
deposition, the trial court provided as a sanction that Ms.
Kidd would not be allowed to testify at trial. As a result,
Ms. Kidd neither attended nor testified at trial.
April 12 and 13, 2016, this case was tried before a jury.
During opening statements, counsel for Appellee made the
This case has a long history. For one thing, you're not
going to he[ar] from Ms. Kidd today. This case, a lot of it
boils down to credibility. You're not going to be able to
see or hear Ms. Kidd in this case.
We have Mr. Kidd, who is here. In previous cases, he's
been found to not be credible.
counsel objected and requested to approach the bench. The
trial transcript indicates that "a bench conference was
had out of the hearing of the jury[.]" During the
conference, Appellants requested a mistrial. Appellee's
counsel responded with: "Give him the mistrial. I
don't think it is." The trial court, however, denied
the motion. No curative instruction was requested.
Appellee's case-in-chief, a representative at the bank,
Cindy Prince, and Mr. Kidd testified, but Ms. Kidd neither
appeared at trial nor testified. Ms. Prince testified that in
her role as branch manager at the bank, she was responsible
for helping customers open new accounts and managing CDs for
the bank's customers. According to Ms. Prince, she had
long time contact with Ms. Kidd as a customer and generally
remembered helping her with her banking transactions, such a
helping Ms. Kidd open a CD account. Ms. Prince explained that
the bank sends out annual statements of interest paid by the
bank to the customer by way of a 1099 form. Ms. Prince
identified 1099 forms for the years 2007 through 2009 that
were sent to Ms. Kidd, and these were introduced into
Prince also identified a CD in both Appellants' names
dated October 29, 2009. Ms. Prince testified that the CD was
jointly owned by Appellants and was marked as "joint
with survivorship, " meaning that either Mr. or Ms. Kidd
could do whatever they wanted with the CD. Although Ms.
Prince acknowledged that her signature was on the CD as the
bank representative, she had no independent recollection of
the transaction or any comments made during the process of
executing the CD with Appellants. Appellee also introduced a
document with the word "PAID" across the top, which
Ms. Prince identified as a CD that Ms. Kidd purchased in
August 20, 1996, designating Mr. Kidd as a beneficiary, and
which was "cashed out and paid out" to
On cross-examination, Ms. Prince testified that she never
discussed the legal consequences or protections afforded to
the customers by their decision to combine individual CDs.
to Mr. Kidd, between February 2009, when the first lawsuit
was filed, and April 21, 2011, the entry of the judgment in
the first case prior to the remand from the Court of Appeals,
he understood that both he and Ms. Kidd were at risk to have
a judgment rendered against them, and, in fact, a judgment
was subsequently rendered against them. Mr. Kidd identified
the temporary restraining order entered in October 2010 that
enjoined both Appellants from disposing of any property,
including any financial accounts and certificates of
deposits. Mr. Kidd testified that neither he nor Ms. Kidd had
any legal education and that he knew nothing about
protections afforded a married couple by having jointly owned
property. Mr. Kidd denied having any knowledge that a jointly
owned CD could be protected if only one of the parties had a
judgment against them.
Kidd further testified that Appellants combined their CDs for
"convenience" so that they would receive "one
1099 instead of two." When asked whether he received any
1099s, Mr. Kidd replied "I don't know." Mr.
Kidd also testified that Appellants designated Ms. Kidd's
nephew, with whom Appellants had a close relationship, as the
beneficiary on the jointly-owned CD. Mr. Kidd introduced a
copy of a recorded deed of trust that secured the earlier
amended judgment from Teague I against Ms. Kidd in
the amount of $267, 305.31 to show that Appellants were not
rendered insolvent as a result of the consolidation.
end of the trial, Appellee acknowledged that no evidence of
insolvency was presented and dismissed all of her claims
against Appellants with the exception of the "actual
intent" fraud claim pursuant to T.C.A. §
66-3-305(a) based on Appellants' consolidation of their
case was submitted to the jury. The jury was presented with a
single question: "On October 29, 2009, did [Ms. Kidd]
transfer her [CD] and combine it with [Mr. Kidd's CD] to
create the joint [CD] at [the bank] with actual intent to
hinder, delay, or defraud the [Decedent's estate]?"
After deliberations, the jury returned with a verdict of
"Yes." The trial court entered a judgment on the
verdict on May 18, 2016. On June 15, 2016, Appellants filed a
motion for a new trial on the following bases: (1) that the
verdict was contrary to the weight of the evidence; and (2)
that the trial court's action in allowing Appellee's
statement to be admitted in opening statement regarding Mr.
Kidd's credibility constituted an "improper comment
by the [trial] court on the evidence."
order of September 12, 2016, the trial court noted that the
jury heard Mr. Kidd's testimony, which included several
inconsistent statements, and therefore was able to judge his
credibility. In addition, based on Ms. Kidd's failure to
testify and absence from trial, the trial court stated that
the jury was allowed to conclude that her testimony would
have been adverse to her. As such, the trial court found that
the verdict was supported by the weight of the evidence. The
trial court also found that, although counsel for Appellee
made a reference to Mr. Kidd's credibility in the first
case during opening statement: (1) the issue was not argued
during closing; (2) no proof was put on regarding Mr.
Kidd's credibility in the first case during the course of
the trial for the instant case; (3) the jury instructions
admonishing the jury-that it was the sole judge as to
credibility, that it was the sole finder of fact, that it was
to look at only the evidence in this case, and that
statements made by counsel were not evidence-were sufficient
to negate any issue concerning the opening statement.
Accordingly, the trial court denied Appellants' motion
for a new trial. This appeal followed.
raise the following issues for our review, which we have
slightly restated and reordered as follows:
1.Did the trial court commit reversible error by permitting
the Appellee's counsel to state to the jury in opening
statement that the trial court had previously found Mr. Kidd
to not be credible and denying a mistrial or providing
2.Was there sufficient material evidence presented to the
jury to justify its finding that Appellants acted with
fraudulent intent to hinder, delay or defraud the Appellee
from collecting on a judgment against Ms. Kidd through the
consolidation of her CD with Mr. Kidd?
of Mistrial Based on Comments Regarding Mr. Kidd's