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Frank v. Fields

Court of Appeals of Tennessee, Knoxville

May 26, 2017


          Session January 25, 2017

         Appeal from the Chancery Court for Monroe County No. 17, 982 Jerri S. Bryant, Chancellor

         This 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.

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

          J. Lewis Kinnard, Madisonville, Tennessee, and Keith McCord, Knoxville, Tennessee, for the appellants, Tony Frank, Joyce Dodd, and Teresa Hipps.

          John W. Cleveland, Sr., Sweetwater, Tennessee, and Doris A. Matthews, Madisonville, Tennessee, for the appellee, Ronnie Fields.

          Thomas 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.



         I. Factual and Procedural Background

         The 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.

         In its 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."[1] 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.

         Mr. 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.

         Testimony 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 attorney.

         Ms. 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.

         Testimony 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 action.

         Decedent 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.

         In Ms. 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.

         Decedent 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.

         Decedent 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.

         On 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.

         Finally, 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.

         At 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).[2] 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.

         Bank 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.

         On 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 Miscellaneous Property":

Household Furnishings

$ 2, 000.00

Volunteer Federal (CD)

128, 902.95

Volunteer Federal (ckg. acct.)

101, 000.00

Citizens National Bank (CD)

40, 000.00

Citizens National Bank (CD)

15, 011.09

Citizens National Bank (MM acct.)

166, 745.26


$ 453, 659.30

         Mr. Fields deducted $11, 391.55 in funeral and estate expenses, for a net estate worth claimed on the tax return of $526, 667.75.

         Bank 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.

         In 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.

         On 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 representative ...

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