ROY EDWARD BANE, EXECUTOR OF THE ESTATE OF MARTHA HARRISON BANE
JOHN BANE ET AL.
May 20, 2019
from the Chancery Court for Cocke County No. 2014-CV-103
Telford E. Forgety, Jr., Chancellor
trial court granted a default judgment to the plaintiff in
March 2009, which judgment invalidated a deed for real
property transferred from the plaintiff to her son and
daughter-in-law. The trial court subsequently set aside the
default judgment without making sufficient findings of fact
and conclusions of law concerning the basis for the ruling.
Following a consequent bench trial, the trial court upheld
the deed from the plaintiff to her son, although the
plaintiff sought to have the deed set aside based on undue
influence and fraud. The plaintiff has appealed. Based upon
our determination that the trial court failed to make
sufficient findings of fact and conclusions of law in its
order that set aside the default judgment, we vacate both the
trial court's final order and the order setting aside the
default judgment. We remand this matter to the trial court
for entry of sufficient findings of fact and conclusions of
law regarding the legal basis of the trial court's
decision to set aside the default judgment, or, in the
alternative, reconsideration of that judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Vacated; Case Remanded
M. Leveille, Knoxville, Tennessee, for the appellant, Roy
Edward Bane, Executor of the Estate of Martha Harrison Bane.
Patrick Stapleton, Sevierville, Tennessee, for the appellees,
John Bane; Anne Bane; and Elizabeth Caldwell Kingery,
Executor of the Estate of J. Alan Kingery.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Charles D. Susano, Jr.,
R. FRIERSON, II, JUDGE.
Factual and Procedural Background
December 15, 2008, Martha Harrison Bane filed a
"Complaint for Cancellation of Deed Induced by Fraud and
Undue Influence" ("first action") against her
son and daughter-in-law, John and Anne Bane
("Defendants") in the Cocke County Chancery Court
("trial court"). In her complaint, Ms. Bane alleged that
Defendants had exerted undue influence over her and had
fraudulently induced her to transfer a tract of real property
to them. Although all of the parties were residents of
Virginia, the property in question ("the Property")
is located in Cocke County, Tennessee.
Bane asserted, inter alia, that at the time of the
Property's transfer in 2003, John Bane was acting as her
attorney-in-fact. Ms. Bane alleged that John Bane falsely
represented that she needed to sign the deed transferring
title to the Property to Defendants as part of Ms. Bane's
estate plan. Ms. Bane further alleged that Defendants
informed her the deed would be placed in a lock box and would
not be recorded until after her death. According to Ms. Bane,
she had no intention of transferring title for the Property
to Defendants at the time she signed the deed; rather, she
intended for them to receive it only following her death.
Bane further asserted that upon her discovery of the transfer
of the Property, she revoked the power of attorney granted to
John Bane and demanded that he and his wife convey title back
to her. Upon John Bane's refusal to do so, Ms. Bane filed
this action, seeking title to the Property, damages, and an
award of attorney's fees. A copy of the deed transferring
the Property to Defendants was attached to the complaint.
March 23, 2009, the trial court entered an order, finding
that Defendants had received proper service of process and
had failed to answer the complaint or otherwise appear. The
court thus entered a default judgment, which set aside the
deed from Ms. Bane to Defendants. A Clerk and Master's
Deed was accordingly issued, transferring title to the
Property back to Ms. Bane.
Bane subsequently instituted a separate action by filing a
"Complaint for Cancellation of Deed of Trust"
("second action") with the trial court on August
27, 2014. In this complaint, Ms. Bane named John and Anne
Bane as defendants as well as J. Alan Kingery, Anne
Bane's father. Ms. Bane alleged that on June 20, 2007,
Defendants had executed a Deed of Trust in favor of Mr.
Kingery in the amount of $250, 000, which required no
payments and set forth no associated interest rate. According
to Ms. Bane, Mr. Kingery did not pay any money to Defendants
upon the execution of the deed of trust. Rather, Ms. Bane
alleged that the trust deed was executed to create a cloud on
the title to the Property. Ms. Bane sought to have the deed
of trust set aside.
Kingery subsequently filed a motion to intervene in the first
action, asserting that he was an indispensable party thereto.
In addition, Mr. Kingery and Defendants filed motions to have
the default judgment from the first action set
aside. On March 30, 2015, the trial court entered
an order granting the motions to set aside the default
judgment and finding Mr. Kingery to be a necessary and
indispensable party. Rather than granting Mr. Kingery's
motion to intervene in the first action, the trial court
consolidated the first action with the second action, which
permitted Mr. Kingery to proceed as a named party and
rendered the motion to intervene moot. The court entered a
subsequent order on September 15, 2015, allowing the
intervention of the Martha Bane Trust as a party to the
October 13, 2016, Defendants and Mr. Kingery filed a joint
motion seeking sanctions against Ms. Bane for failing to
appear for her scheduled deposition. The trial court
subsequently entered an order directing Ms. Bane to appear
for a deposition within thirty days. On December 8, 2016,
Defendants and Mr. Kingery filed a renewed motion for
sanctions, claiming that Ms. Bane had appeared for a
deposition on December 2, 2016, but that the deposition was
not completed because Ms. Bane was not feeling well. On July
11, 2017, Elizabeth Caldwell Kingery was substituted as a
party in place of Mr. Kingery, who had recently passed away.
trial court conducted a bench trial on February 6, 2018. The
trial court then entered a final order on February 12, 2018,
wherein the court dismissed Ms. Bane's claims with
prejudice. The Clerk and Master's deed executed in 2009,
which had conveyed title for the Property to Ms. Bane, was
set aside, as well as subsequent deeds conveying the Property
to the Martha Bane Trust. The court specifically upheld the
deed from Ms. Bane to Defendants and the deed of trust in
favor of Mr. Kingery.
memorandum opinion incorporated into the final judgment, the
trial court explained in pertinent part:
The Court has listened to the evidence, which by the way is
really in many respects confusing and just terribly
convoluted, the dealings between the parties, terribly
convoluted, but at the end of the day the Court is
constrained to dismiss the complaint. The Court will explain
First of all, [Ms. Bane] claims that Mr. John Bane held a
power of attorney for Martha Harrison Bane, which he did for
sure, held a power of attorney which was dated May 9, 2003.
The deed made from Martha Harrison Bane to John Bane was
dated . . . October 20, 2003. John Bane held a deed of trust,
or rather a power of attorney for his mother Martha Bane
certainly in October of 2003. From the record here, the Court
cannot find that there had been any use of the power of
attorney between the time it was granted in May of 2003 and
the time the deed was made in October of 2003.
There may have been use of the power of attorney after that,
but there's no evidence in the record here that there was
use of the power of attorney between May and October.
Accordingly, I don't think the presumption of undue
influence by reason of a confidential relationship between
John Bane and Martha Bane, I don't think that presumption
arises with respect to this transaction.
I also note that there's no evidence in the record that
the power of attorney was used in connection with the very
deed at issue. Martha Bane signed the deed herself. John Bane
did not sign the deed as power of attorney for Martha Bane as