TONY FRANK ET AL.
Session January 25, 2017
from the Chancery Court for Monroe County No. 17, 982 Jerri
S. Bryant, Chancellor
case involves a claim of undue influence against an
attorney-in-fact for his role in changing bank accounts and
certificates of deposit owned by the principal to be payable
on death to the attorney-in-fact. The principal, or decedent
in this action, died at the age of ninety-five in January
2012. The decedent was survived by two nieces and three
nephews, one of whom, the defendant, was the decedent's
attorney-in-fact and the personal representative of his
estate. The decedent's two nieces and one other nephew
filed a complaint alleging undue influence arising from a
confidential relationship. Following a bench trial, the trial
court dismissed the complaint upon finding that although a
presumption of undue influence had been raised by a
confidential relationship between the attorney-in-fact and
the decedent, the attorney-in-fact had successfully rebutted
the presumption. The plaintiffs appeal. Discerning no
reversible error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Lewis Kinnard, Madisonville, Tennessee, and Keith McCord,
Knoxville, Tennessee, for the appellants, Tony Frank, Joyce
Dodd, and Teresa Hipps.
W. Cleveland, Sr., Sweetwater, Tennessee, and Doris A.
Matthews, Madisonville, Tennessee, for the appellee, Ronnie
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Frank G. Clement, Jr.,
P.J., M.S., joined.
R. FRIERSON, II, JUDGE
Factual and Procedural Background
decedent, Ray L. Frank ("Decedent") was one of six
children. He died without issue or a surviving spouse. The
plaintiffs, Tony Frank, Joyce Dodd, and Teresa Hipps
(collectively, "Plaintiffs"), are, respectively, a
nephew and two nieces of Decedent, each born to a different
sibling. The defendant, Ronnie Fields ("Mr.
Fields"), is also Decedent's nephew. Tony Frank is
the son of Ralph Frank, Decedent's brother, and Ms. Hipps
is the daughter of Gavin Frank, another of Decedent's
brothers. Ms. Dodd and Mr. Fields are both the children of
Mable Fields, Decedent's sister ("Ms. Fields").
Decedent had one other living nephew at the time of his
death, Scott Frank, who is the brother of Ms. Hipps and is
not participating in this action. All of the parties
participating in this appeal testified during trial.
memorandum opinion incorporated into the final judgment, the
trial court found that beginning in the 1990s, Decedent and
his two sisters, Ms. Fields and Beuna Black ("Ms.
Black"), "all tried to take care of each other, and
they did that from time to time based on the health of the
people that were around them at the time." In the 1990s,
Decedent, Ms. Fields, and Ms. Black resided in separate
residences in Vonore, Tennessee. At some point prior to 2004,
Decedent began to lose his eyesight, and his sisters visited
him regularly to check on him. It is undisputed that the
ability of Decedent's sisters to provide assistance to
him began to change in 2004. Ms. Dodd testified that Ms.
Fields and Ms. Black both began to suffer from
Alzheimer's Disease in 2003 to 2004.
Fields testified that he left his twenty-year position as
Vice-President of Managing and Distribution for Lion Apparel
in Dayton, Ohio, to relocate to Monroe County, where he had
grown up, in 2004. Mr. Fields had previously built a home of
his own in Monroe County in 1997. According to Mr. Fields,
his wife, Linda Fields, developed lung cancer in 2004,
causing him to leave his employment in order to spend more
time with her in their Monroe County home. Mr. Fields further
testified that when he relocated, he began visiting Decedent
nearly every day and transporting Decedent to appointments
and "anywhere he wanted to go." Mr. Fields stated
that he would typically visit Decedent at lunchtime,
explaining that Decedent had meals delivered to him by Meals
on Wheels but enjoyed having someone "put his food on
the table for him and get it ready for him to eat because he
couldn't see very well." Mr. Fields and Ms. Dodd
each testified that Decedent had a live-in caregiver for at
least a few months, Hazel E. Mr. Fields maintained that he
secured Hazel E. to reside with and assist Decedent.
According to Mr. Fields, Hazel E. was approximately eighty
years old at the time.
demonstrated that at different times from 2010 to 2011,
Decedent and both of his sisters relocated to senior care
facilities. Ms. Black was the first of the siblings to move
into Wood Village Nursing Home ("Wood Village") in
Sweetwater, followed soon after by Ms. Fields. Ms. Dodd
explained that Ms. Fields had been residing with her for
approximately five and one-half years prior to Ms.
Fields's breaking her knee and requiring additional care.
In 2010, Decedent resided for approximately six months at a
nursing home in Vonore known as Rivers Edge. Mr. Fields
testified that he moved Decedent to Rivers Edge after Hazel
E. could no longer care for him and Mr. Fields could not find
anyone to stay with Decedent at night. Mr. Fields further
related that he moved Decedent to another nursing home for a
short time but, finding that nursing home unsatisfactory,
relocated Decedent to the assisted living section of the Wood
Village facility, known as The Lodge at Wood Village.
According to Mr. Fields, Decedent resided at Wood Village for
approximately one year, during which time Mr. Fields
regularly visited Decedent on Mondays, Wednesdays, and
Fridays, often taking Decedent out to eat. Mr. Fields
explained that he transported Decedent to all types of
appointments, including those with Decedent's doctors and
Dodd testified that she remembered moving Ms. Fields and
Decedent into Wood Village on the same day. After
approximately one year in the assisted living division of
Wood Village, Decedent moved to the nursing home division for
only a few months before his final hospitalization. Ms. Dodd
stated that she also assisted with Decedent's medical
appointments during this time, explaining that Mr. Fields
would transport Decedent from whichever facility he was in
and call her when they arrived in Maryville where the
doctor's office was located. According to Ms. Dodd, she
would then accompany Decedent during his appointment.
demonstrated that Ms. Black died in 2011, although the exact
date is not clear in the record. Decedent died of natural
causes at the University of Tennessee Medical Center on
January 18, 2012, following hospitalization lasting
approximately a week and a half. He was ninety-five years of
age. Although Ms. Fields was still living at the time of
Decedent's death, she died during the pendency of this
and his sisters executed various powers of attorney during
the final years of their lives. On May 16, 2005, Ms. Fields
executed a power of attorney appointing Mr. Fields as her
attorney-in-fact. She concomitantly executed a last will and
testament, bequeathing her entire estate to her children, Mr.
Fields and Ms. Dodd. On October 20, 2005, Decedent executed a
power of attorney appointing Mr. Fields as his
attorney-in-fact. Mr. Fields testified that once Ms. Black
began experiencing difficulty handling Decedent's
accounts and was having trouble handling her own, Decedent
asked Mr. Fields to be his attorney-in-fact. In May 2006, Ms.
Black executed two powers of attorney, each time appointing
Mr. Fields and Scott Frank as her attorneys-in-fact. In the
second document, Ms. Black removed a provision withholding
the authority of the attorneys-in-fact until her disability.
On December 2, 2010, Decedent executed a second power of
attorney appointing Mr. Fields as his attorney-in-fact.
Black's last will and testament, executed on June 18,
2002, she devised and bequeathed 25% of her real and personal
property to Decedent, provided that he survived her by thirty
days, and equally to Mr. Fields and Scott Frank if Decedent
failed to survive her. She devised and bequeathed the
remaining 75% of her estate in equal sixths to Ms. Fields,
Mr. Fields, Ms. Dodd, Scott Frank, Kim Frank, and Brittany
Frank. In her will, Ms. Black appointed Mr. Fields and Scott
Frank as co-executors. Mr. Fields testified that he had
served as the executor of Ms. Black's estate.
had executed four successive wills that were presented as
exhibits during trial and are in the record before us. First,
on July 13, 1990, Decedent executed a last will and
testament, devising and bequeathing all of his real and
personal property to his wife, Mary Belle Frank. In the event
that his wife predeceased him, Decedent, apart from specific
items of personal property bequeated to individuals, devised
and bequeathed the remainder of his real and personal
property 12.5% to Ms. Fields, 12.5% to Ms. Black, 12.5% to
Charles Gavin Frank, 25% to Tyson Kinser, 12.5% to the heirs
at law of Ralph Frank, and 25% to the heirs at law of Albert
Kinser. According to an inheritance tax return filed by Mr.
Fields subsequent to Decedent's death, Decedent's
wife died on November 5, 1994.
executed a second last will and testament on November 4,
1999, devising and bequeathing his entire estate, except a
dining room table and chairs, equally to Ms. Fields and Ms.
Black. In this second will, Decedent designated Ms. Black as
his executrix and Ms. Fields as his substitute executrix. In
August 2002, Decedent executed a power of attorney appointing
Ms. Black as his attorney-in-fact.
April 21, 2005, Decedent executed a third last will and
testament, devising and bequeathing all his real and personal
property, with the exception of the oak dining room set, 25%
to Ms. Fields and 25% to Ms. Black, provided that each
sister, respectively, survived him by thirty days. He
bequeathed and devised the remaining 50% of his real and
personal property in equal one-sixth shares to Mr. Fields,
Ms. Dodd, Ms. Hipps, Tony Frank, Scott Frank, and Randy
Frank. In this testamentary instrument, Decedent appointed
Ms. Black as his executrix and Mr. Fields as his substitute
executor. Decedent directed that his executrix or executor
should sell all of his real and personal property with the
proceeds to be apportioned according to the will.
on December 2, 2010, Decedent executed a last will and
testament, again devising and bequeathing all his real and
personal property, with the exception of the dining room set,
25% to Ms. Fields and 25% to Ms. Black, provided that each
survived him by thirty days. He bequeathed and devised the
remaining 50% of his real and personal property in equal
one-fifth shares to Mr. Fields, Ms. Dodd, Ms. Hipps, Tony
Frank, and Scott Frank. In this final will, Decedent
appointed Mr. Fields as his executor and Mr. Fields's
son, Michael Fields, as his substitute executor. Mr. Fields
executed a petition to probate Decedent's 2010 will with
the Monroe County Probate Court on February 10, 2012.
Although the record in this matter does not contain a
date-stamped copy of the probate petition, Mr. Fields's
counsel's certificate of service indicates that counsel
sent a copy of the petition and will to each of the
individual legatees named therein on February 13, 2012.
According to a copy attached to Plaintiffs' complaint in
this action, letters testamentary were issued to Mr. Fields
by the Monroe County Probate Court on March 7, 2012.
issue in the instant action is Mr. Fields's involvement
in two checking accounts and three certificate of deposit
("CD") accounts originally opened by Decedent. At
the time of Decedent's death, both of the checking
accounts, one with Volunteer Federal Savings Bank in Vonore
("Volunteer Federal") and a money market account
with Citizens National Bank in Vonore ("Citizens
National"), were designated as payable on death
("POD") to Mr. Fields. See Tenn. Code Ann.
§ 45-2-704(b)(1) (2007). One of the three CD accounts was
with Volunteer Federal and was designated as POD to Mr.
Fields. Two of the CD accounts were with Citizens National,
one designated as POD equally to Mr. Fields and Scott Frank,
and the other owned by Mr. Fields as the last surviving owner
upon Decedent's death.
records demonstrate that over the course of two days on
January 26 and 27, 2012, Mr. Fields removed, in the form of
bank checks made out to himself, $228, 887.72 from
Decedent's Citizens National accounts and $229, 902.95
from Decedent's Volunteer Federal Savings accounts. In
addition, Citizens National concomitantly issued a bank check
made payable in the amount of $15, 011.10 to Scott Frank,
representative of Scott Frank's fifty-percent POD
interest in one of the Citizens National CD accounts.
Decedent's Citizens National checking account and one CD
account were completely closed on January 26, 2012, while the
CD account POD to Mr. Fields and Scott Frank was closed the
next day. The Volunteer Federal CD accounts were also closed
on January 27, 2012. The Volunteer Federal money market
checking account remained open until Mr. Fields closed it by
removing $91.20 in accrued interest on March 19, 2012. Mr.
Fields does not dispute that he kept the funds designated as
POD to him for his own use.
March 11, 2013, Plaintiffs and Ms. Fields filed a complaint
alleging, as pertinent to this appeal, that Mr. Fields had
"exercised undue influence" over Decedent and taken
"advantage of his confidential position to obtain
control of all the liquid assets" of Decedent, allegedly
depriving Plaintiffs of the "legacy which [Decedent]
intended." Plaintiffs attached copies of Decedent's
2010 will and power of attorney, the letters testamentary
issued to Mr. Fields, and a copy of the Tennessee Short Form
Inheritance Tax Return executed by Mr. Fields on August 7,
2012, in his capacity as executor of Decedent's estate.
The tax return reflected a gross estate value of $538,
059.30, comprised of real estate estimated to be worth $84,
400.00 and "Personal and Miscellaneous Property"
valued at $453, 659.30. In an attachment to the return, Mr.
Fields delineated the following as "Personal and
$ 2, 000.00
Volunteer Federal (CD)
Volunteer Federal (ckg. acct.)
Citizens National Bank (CD)
Citizens National Bank (CD)
Citizens National Bank (MM acct.)
$ 453, 659.30
Fields deducted $11, 391.55 in funeral and estate expenses,
for a net estate worth claimed on the tax return of $526,
records demonstrate that the total amount withdrawn from
Decedent's accounts and paid to Mr. Fields was actually
$458, 881.87, and Plaintiffs have requested that this amount
be returned to the estate. The Citizens National CD account
ending in 678 was liquidated for a total of $47, 131.36,
rather than $40, 000.00 as stated in the inheritance tax
return, and Mr. Fields did not include on the return $91.20
in accrued interest on the Volunteer Federal checking
account, subsequently withdrawn in March 2012. Plaintiffs
have made no claim regarding the estimated $2, 000.00 in
household furnishings or the $15, 011.10 paid upon
Decedent's death to Scott Frank from the Citizens
National CD ending in 874. Mr. Fields does not dispute on
appeal that the total amount of funds he received was $458,
881.87. Mr. Fields testified that in his capacity as
executor, he had subsequently sold Decedent's home and
deposited the proceeds in the estate account. Mr. Fields
acknowledged that the amount available in the estate account
for distribution according to Decedent's will was $102,
000.00. He explained that distribution of the estate account
awaited completion of the instant action.
their complaint, Plaintiffs requested that the trial court,
inter alia, require Mr. Fields to account for the
funds removed from Decedent's accounts in January 2012
and require Mr. Fields to reimburse Decedent's estate.
Mr. Fields filed an answer on April 10, 2013, denying all
substantive allegations. He also averred that Ms. Fields was
not competent to be a party to this action and that as Ms.
Fields's attorney-in-fact, he had not consented to her
inclusion as a party.
January 27, 2014, Plaintiffs filed a motion for summary
judgment and statement of material facts, attaching, in
addition to materials previously filed, bank records,
deposition testimony proferred by Michael Fields, and an
affidavit executed by Ms. Dodd. Mr. Fields filed a response
and a statement of material facts on March 4, 2014, attaching
a record of checks written by Mr. Fields on Decedent's
accounts for Decedent's expenses, as well as affidavits
executed by Sheila Phillips, a new account representative
with Volunteer Federal who had assisted Decedent with his
banking needs, and Kay Grubb, a customer service