Opinion
No. M2006-00065-COA-R3-CV.
Filed on January 31, 2007.
Appeal from the Circuit Court for Franklin County No. 13087-CV J. Curtis Smith, Judge. Judgment of the Circuit Court Reversed, in part, and Affirmed, as modified; Case Remanded
James S. Stephens, Manchester, Tennessee for the Appellants, George Daniel Burg and Edward Allen Burg.
Mark Stewart, Winchester, Tennessee for the Appellee, Joe David McBee.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., and SHARON G. LEE, JJ., joined.
OPINION
Joe David McBee ("Defendant") filed a petition seeking to have the August 4, 1997 Last Will and Testament of Corrine E. Burg ("the Will") admitted to probate. The General Sessions Court of Franklin County ("General Sessions Court") entered an order admitting the Will to probate. George Daniel Burg and Edward Allen Burg ("Plaintiffs") filed a petition seeking to have the Will set aside alleging, in part, that the Will was the product of fraud and undue influence exerted upon Corrine E. Burg by Defendant. The General Sessions Court entered an order certifying the issues relating to the validity of the Will to the Circuit Court for Franklin County ("Circuit Court") for trial. Plaintiffs also filed a petition in the Chancery Court for Franklin County ("Chancery Court") seeking an accounting and the return of assets that Defendant allegedly transferred to himself from Ms. Burg's accounts prior to Ms. Burg's death. The Chancery Court case was consolidated with the Circuit Court case and the consolidated case was tried in Circuit Court. After trial, the Circuit Court entered an order finding and holding, inter alia, that no confidential relationship existed and, in the alternative, that Defendant had rebutted the presumption of undue influence. The Circuit Court dismissed Plaintiffs' petition. Plaintiffs appeal to this Court. We reverse as to the Circuit Court's decision that no confidential relationship existed, and affirm the judgment in all other respects including that Defendant rebutted the presumption of undue influence.
Background
Plaintiffs were the nephews and only close relatives of Corrine E. Burg who never married or had children. Ms. Burg died February 12, 2002, at the age of 86. Defendant produced the Will seeking to have it probated. In the Will, Ms. Burg bequeathed to Defendant "all of my property of whatsoever kind and wheresoever situated, whether real, personal or mixed, . . . ." A copy of a previous will shows that Ms. Burg had planned earlier to bequeath her estate in equal shares to Plaintiffs. Plaintiffs sought to have the Will declared invalid claiming, in part, that the Will was the product of undue influence exerted upon Ms. Burg by Defendant. Plaintiffs also sought an accounting and the return of assets to Ms. Burg's estate that Defendant allegedly had transferred to himself prior to Ms. Burg's death. The case was tried in Circuit Court over several days in July and October of 2005.
At trial, Tonya Wockasen and Charline Butner testified regarding the execution of the Will in August of 1997. Ms. Wockasen was one of the two witnesses to the Will. Ms. Butner notarized the document.
Ms. Wockasen testified that at the time the Will was executed, she worked as a loan assistant at Regions Bank in Sewanee. Ms. Burg went to the bank to execute the Will and have it witnessed. Ms. Wockasen testified that Ms. Burg acknowledged that the document was her last will and testament and that Ms. Wockasen, Lelia Moss, and Charline Butner were all present and each signed the Will in the presence of all of the others. Ms. Wockasen further testified that in her opinion Ms. Burg had the capacity to make a will at that time. Ms. Wockasen believes that Ms. Butner, who was Ms. Wockasen's boss, never would have asked Ms. Wockasen to witness the Will if Ms. Butner had any doubts as to Ms. Burg's competency. Ms. Wockasen remembers Defendant being at the bank when the Will was executed, but does not remember him being in the room during the execution. Ms. Wockasen specifically remembers Ms. Burg thanking them for signing the Will.
Ms. Butner testified that she is the branch manager of the Regions Bank in Sewanee. She came to know Ms. Burg as a bank customer when Ms. Butner started working at the bank in 1989. Although she does not remember any specific conversation that she had with Ms. Burg on the day the Will was executed, nothing happened that day that made Ms. Butner think Ms. Burg lacked capacity or didn't understand what was going on. Ms. Butner stated: "You know, she was a known customer. I'm sure I talked to her. Sewanee is a community of people, and we get to know our customers past being a customer. And I'm sure I talked to her like on a normal basis." Ms. Butner never had any concerns about Ms. Burg's mental capacity during any of the times that she notarized documents for her.
Defendant, who testified that he was 57 years old at the time of trial, is the head of the serials and government documents department at the University of the South duPont Library ("the Library"). Defendant holds an elected position in Franklin County as a road commissioner and has held this position for 27 years. Defendant is a member of Grace Fellowship Church and since 1968, he has been a member of the trustees and the secretary and treasurer of the church. Defendant testified that in his position as treasurer of the Grace Fellowship Church, he maintains the church checkbook and account.
Defendant testified that he worked at the Library with Ms. Burg from January of 1967, until Ms. Burg retired in August of 1985. Ms. Burg was the head of cataloging at the Library. Defendant and Ms. Burg had offices across the hall from one another and during the years they worked together, he and Ms. Burg would take their morning and afternoon breaks together and would occasionally have lunch together. Ms. Burg retired in 1985, and in the mid to late 1980's, Defendant saw Ms. Burg approximately once a month. He further testified that by the end of 1987, he was seeing her approximately once a week "out at the grocery store or at the post office or —. . . ."
Defendant testified that when Ms. Burg had a stroke in 1987, she requested that Defendant assist her with her financial affairs. Ms. Burg had a second stroke in 1995, and after the second stroke, the things Defendant did for her "changed because instead of once a week I started going over daily and then at the very end three and four times, more sometimes on weekends, per day." Defendant testified: "When I started taking care of Ms. Burg in 1987 after her first stroke, she was a good friend. Before her death I felt like she was as close to me as my mother." When Ms. Burg died, Defendant made all the arrangements for her funeral.
In 1996, Ms. Burg executed a living will and power of attorney naming Defendant as her attorney-in-fact and added Defendant's name to her checking and savings accounts as a joint signor. Defendant testified:
I was there [at Ms. Burg's house], and we were talking about finances and things. And she said that she felt that she was having problems balancing her checkbook or balancing her check statements and that she did not want to go down to the bank and ask them to do it and asked me would I balance her checkbook once a week. And then later on when I was added, then I took over the responsibilities of the accounts.
Defendant also testified that he did other things for Ms. Burg:
From 1995 on, yes. I would stop by and pick something up and then take in for her to eat it, the night meal, and on weekends three meals a day. So that was six meals on the weekend that I always did. I prepared breakfast more and — because I'm a breakfast person, but the lunch and the evening dinner meal then always would bring in.
Defendant further testified that he would go over at night to make sure that Ms. Burg's door was locked and that if he didn't show up by 9 p.m., Ms. Burg would call him. Defendant described Ms. Burg as "real feisty. . . . And if I didn't do what she wanted, you know, I heard from it."
Defendant testified that when he began doing more for Ms. Burg in early 1995, she insisted on him being paid "[a]s a gift." At the beginning when he was going over to Ms. Burg's house daily, he was being paid $300 per month. He also testified: "At Christmas she would give me sometimes on my birthday or Christmas $500. I remember one Christmas she gave me a thousand." Defendant testified that $500 was the most he received in payment for assisting Ms. Burg but that he also received reimbursement for food or things he brought to Ms. Burg for which he had paid cash.
Defendant testified regarding how he assisted Ms. Burg to pay her bills:
on Thursday nights I would go over and take food, and we would have supper together. And that was at usually a quarter to 6:00. And then I would write out the checks. She would look at them. I had signed them "by Joe David McBee" when my name went on the accounts, and then she would look over them. And then I would send them out . . . .
Defendant testified that Ms. Burg threw away the copies of her checks and stated: "she usually would go through them because she was very organized. And she went through them, and sometimes she would keep them a month and then sometimes two months. And then she would discard them." Defendant testified: "I mentioned to her one time, you know, maybe that you would like to keep those longer. And she says, `Well, if I needed something, I could get a copy from the bank,' . . . ." Defendant testified:
In the beginning before her stroke in 1995 I would write out the checks and she would sign them or occasionally I think if she sent a check to a friend sometimes or even maybe her nephews, there may be some checks in there that she wanted to sign herself.
When Ms. Burg wasn't having a good month she would ask Defendant to sign the checks. When asked about checks written on Ms. Burg's account to his creditors, Defendant testified: "Those checks were written from her account because when we were discussing things she says, `Are there things that I could do for you . . . ` And she would tell me to pay a personal bill or something and that she would pay for it. . . . These were gifts."
Defendant testified that he kept track of things he purchased for Ms. Burg for which he had paid cash and explained:
she just had a little note pad there. And I would just make a note on it that I had done this or at the end of the month I would figure up exactly how many meals I had brought in and those things, if I had gone by the senior citizens and paid for her meals or if I had written a check for her meals or things like that, that would — I would only be reimbursed for the part that I had paid cash out.
Defendant further testified:
At night I would go out and get her meals and bring them in. And also on Saturday and Sunday I was doing — because she did not have any help on Saturday and Sunday, I was doing three meals a day for those things. And I would go out for lunch and for dinner. . . . An average with the food and tip, let's say an average of $5. And so 5 times 30 meals or, you know, for one meal or for — sometimes I would go for breakfast on the weekends so times three meals per day. . . . And then also then I would go down and pick up Ensure for her which was about $25 a case. And then I would pay for the Ensure at the senior citizens, and she would drink that can a day. And so that was about $2 a can.
Defendant testified that he would pay in cash for the meals he brought to Ms. Burg and get reimbursed for the food and for the wear and tear on his car.
Defendant also testified about how he assisted Ms. Burg with her daily medications. He explained that Mildred Reid worked for Ms. Burg from approximately 1995, until December of 1999, when Ms. Reid broke her shoulder and could no longer lift Ms. Burg to assist Ms. Burg in and out of the bathtub. Defendant testified:
In 1987 the home health would call the drugstore, and then the person that was working for her would go by and pick it up. And then the home health nurses would put it in the daily dosage things for her to take. In 1995 through 1999 the nurses would put it in there, and I would make sure that she was taking it on a regular basis when I was over there.
Mildred would check her at lunch. I would check her at night to make sure. But in January of 2000 when everything changed and Mildred was not working and home health, then I put the medicine in the daily medication boxes and then made sure when I went over for breakfast every morning those last two years that she had her medicine, that at night she took her medicine, and I did that seven days a week to make sure that the medicine was taken.
Defendant testified regarding the Will:
I just went over one day, and she had that on her mind that she wanted to get her affairs in order. And she told me that she wanted to do and that she had these documents that home health had given her and that she would like to bring all of her affairs in order. And these — and she said what her plan of action was and so that was the plan of action we took, took it over, got Judy to type it, and then had the bank to execute it and things like this. But she had a real strong mind that she wanted to do that at that time, and that's what she did.
Defendant testified that after the Will was executed, he "[t]ook it and made copies, and then I put the original in the bank deposit box. And then she kept a copy in her home."
Ms. Burg lived in a house she leased from the University of the South. In September of 1997, Ms. Burg executed a new lease agreement ("the Lease") adding Defendant to the Lease as a joint tenant with right of survivorship. Defendant testified:
I went over one afternoon and she said that she would like to — she had called the university and told them that she would like to add my name as part of the lease. And they told her the procedures that she had to go through and that they would draw up a new document and that she would have to come over and have it notarized in front of their notary and have it witnessed and executed.
Defendant testified that he was present when Ms. Burg executed the documents to have his name added to the Lease and that he drove her to the university to drop off the papers for approval by the lease committee. Defendant testified:
Well, I think there was a lot of discussion before she decided to do that. She asked a lot about the leases and how they worked. And I had been on the lease committee many years before that and had known the process. And she was asking about the process, and then it just, you know, went away.
I didn't think anything about it, and she didn't say any more about it. Then when I went over one night she said that, you know, she would like to add my name to the lease. And I told her that, you know, well there's procedures that she would have to go through. And so the next day she called Barbara Schlichting and asked her to send over the documents to do that.
Defendant never went before the lease committee in regard to adding his name to the Lease.
Defendant testified that over the years, from the time she retired until the time of her death, Ms. Burg made improvements to her house. Ms. Burg had a new roof put on and the house rewired and over the years purchased curtains, drapes, and carpet and did some remodeling. Defendant testified:
In 1985 when she retired, she said her house — a couple rooms needed some major repairs and things because she had let it go. And so we discussed that. And then I went over about once a week at that time, and then we just started working out things. And I did a plan of action for her that would take and remodel things over the years that she felt that she wanted to do. I made the list. I told her and recommended the people that she could get, and then we went from there.
Defendant testified:
her electrical bills were very expensive. And so to control some of that cost, we looked at putting storm windows on the inside because she lived in a house that had the older windows that cranked out, but you couldn't put a storm window on the outside. So we replaced all the windows inside, storm windows.
We also did wallpapering in her bedroom, and the living room we did carpet. We did window dressing. We put new paneling in there and painted the ceilings and things so it would be more presentable. . . . It went over a long period of time. Really from 1985 to her death we were doing little things and then major things when she felt like people being in the home . . . .
Ms. Burg chose all the color schemes and curtains and things for her house.
Defendant testified that Mike Sutherland did some work for Ms. Burg including repairing Ms. Burg's porch. Instead of being paid by check or cash, Mr. Sutherland requested that Ms. Burg pay one of Mr. Sutherland's bills instead, so that is what was done. Defendant testified that this was done on several occasions when Mr. Sutherland did work for Ms. Burg. Defendant also testified that a similar arrangement existed when David Sampley did remodeling for Ms. Burg. Mr. Sampley did some interior painting and wallpapering and installed some carpet for Ms. Burg and checks were written from Ms. Burg's account directly to Mr. Sampley's creditors in payment. Defendant testified that Mr. Sampley is a friend of his and that Mr. Sampley "did not charge a labor cost [to Ms. Burg], so those [checks to Mr. Sampley's creditors] were supplies only. He was doing it as a favor for me." Defendant testified that every check to Mr. Sampley from Ms. Burg's account was "for supplies that we used to remodel the inside of the house, the rooms that we remodeled."
Defendant was questioned at trial about a $5,000 check with the notation "reimb" written on Ms. Burg's account and made payable to him. Defendant testified:
in 1996 Ms. Burg had gone in with Barbara Tennis that had lived out of town, and she was going to build onto Ms. Burg's house an apartment. She was going to use the garage, and she was going to have a bedroom and a bathroom and a sitting room built on. And in that process when Ms. Burg had her stroke in `95, things changed. . . . [B]ut in 1995 after Ms. Burg had her stroke, then she was reimbursing Barbara for money that she was going to build because Ms. Burg was holding the money. And I remember many times cashing checks and making withdrawals from Ms. Burg and giving her cash. Because every quarter Barbara would come up and she would reimburse and pay her back for the money that they had agreed to build on.
Defendant testified that he had given Ms. Burg $5,000 in cash and the check was to reimburse him and stated: "I assumed [the $5,000 cash he gave to Ms. Burg] went to Barbara Tennis." Defendant admitted that he never was sure that an arrangement with Barbara Tennis ever existed, he simply surmised it did.
Defendant testified that from June of 1996, until the time of Ms. Burg's death, that he made approximately $70,000 in withdrawals from Ms. Burg's account via the automatic teller machine. Defendant testified that Ms. Burg did not use the automatic teller machine at all during this time period. Defendant also testified about checks written to himself:
Around the first of the month she would just — when I was writing out the checks or that week I was writing out the checks, she would say that she would like a check cashed. And so I would write out a check for $200 and the next day go by the bank and get it cashed and bring the cash to her.
Defendant testified that all the money he withdrew from the ATM and the money from the cashed checks "all went to her." Defendant testified that he does not know where Ms. Burg put all this cash.
Defendant was questioned regarding checks made payable to Ms. Burg that were deposited into Defendant's personal account. Defendant testified: "We would get these reimbursement checks from the insurance company, and I would give her cash. And then I would take the checks and deposit them in my own account." He also testified: "I would give [Ms. Burg] cash as soon as she found out what her [income tax] refund was going to be. And then when the refund came, then she would — I would deposit that check in my account." Defendant testified that checks from Sears and Roebuck for $.06 and $3.40
were from refunds of things where she would order or we would order things from Sears and she had — we had figured the taxes or whatever and they were out of something or they reimbursed us for taxing and shipping because they did not charge that much. We send them with the order. I would give her cash, and then she — when — the checks she got back from them, then I would deposit it in my account.
Judy Rollins, who worked in the Library with Ms. Burg from 1968, to 1971, testified at trial. Ms. Rollins testified that Ms. Burg was a very detail-oriented person and that "[s]he did her job well, and she taught you how to do yours well." Ms. Rollins described Ms. Burg as "a feisty lady, a determined one. Yeah. She pretty much had her own mind, and she wasn't afraid to speak it." Ms. Rollins testified that Ms. Burg
oversaw the processing of the books that were bought and placed in the library. . . . From bringing them in, accession them, to doing cards and pockets, filing, the whole shebang that you have to go through to get a book processed before it goes out on the shelf. . . . You know, we didn't have automation then in the library. So everything was hand typed, and she went through and checked everything before it was actually filed or before it was put out . . . .
Ms. Rollins testified that Ms. Burg had great attention for details. Ms. Rollins saw Ms. Burg out socially occasionally after Ms. Burg retired. Ms. Rollins also testified that she has known Defendant all her life and testified he is "[v]ery truthful . . . ." She testified that "[Defendant] took very good care of [Ms. Burg]." Ms. Rollins described the relationship between Defendant and Ms. Burg as both friend and care-giver.
Ann Watkins testified that she visited Ms. Burg once a week on behalf of their church starting in the fall of 1999, and continuing until the time of Ms. Burg's death. She stated: "I went to visit her once a week. And I went at different days and different times of day." She testified she would "[u]sually spend an hour. It was just to be a presence and kind of bring some of the outside world in and God's love. That was the purpose of it." As far as Ms. Watkins knows, Defendant has a good reputation in the community for being honest and truthful. Ms. Watkins testified that "one time when I went to visit [Ms. Burg] and she was having great difficulty breathing and she was crying and I called [Defendant] to come and see — he came and gave her a breathing treatment."
Connie Yates Warner testified that she grew up with Defendant and that Defendant has a very good reputation for truthfulness and honesty.
Mildred Reid worked for Ms. Burg for five years from 1994, to 1999. Ms. Reid testified that during those years "[Ms. Burg's] mind was sharp. There wasn't anything wrong that I know with her mind." Ms. Reid also testified that she attends church with Defendant and agreed that Defendant has a good reputation for being honest and truthful.
Plaintiffs both testified regarding their relationship with their aunt. George Burg testified that he was 61 years old at the time of trial and that he lives in Kentucky. George Burg testified that while he and his brother were growing up, their family would spend holidays with Ms. Burg and go on trips together. When Ms. Burg had her stroke in 1994, he came to visit her. George Burg's family communicated with Ms. Burg during the holidays by phone and George Burg testified that from the time Ms. Burg had her stroke in 1994, "probably someone from the family, myself or my brother's family, would go once — about once every other year to her house here in Sewanee." George Burg admitted that he knew that Defendant was taking care of Ms. Burg even before Ms. Burg had her stroke "[a]nd I felt that [Ms. Burg] was comfortable with that arrangement." George Burg testified that Ms. Burg "felt comfortable with [Defendant], and we were going by what she — her expressions and her thoughts on the matter."
Edward Allen Burg, who has lived in Ohio, Indiana, and New Jersey during his adult life, admitted that from approximately 1982, until Ms. Burg's death in 2002, he only traveled to see Ms. Burg about six times and that most of those times he would only stay for two or three hours before leaving. He further admitted that he only spoke to Ms. Burg by phone two or three times during the final two years of Ms. Burg's life.
Diane Petrilla, M.D., a board certified family practitioner who treated Ms. Burg from 1986, until Ms. Burg's death, testified by deposition. Dr. Petrilla testified that in July of 1994, Ms. Burg had a stroke "involving the left cerebral hemisphere, that left her with dysarthria and right lower extremity weakness. Dysarthria means that she had some difficulty with speech after the stroke." Dr. Petrilla testified regarding residual effects of the stroke stating:
Primarily ah, I would say that the most debilitating thing for Ms. Burg after the stroke was her ambulatory impairment. Ah, when you combined the stroke, which gave her right leg weakness, with the fact that she had had a left hip replacement, you had somebody who was very unstable in their gait and had a lot of difficulty getting around. Ah, so she was dealing with that.
She also had some emotional lability, which is a common after effect of having a stroke. Ah, sometimes in the office she would ah, she would giggle or laugh, and sometimes she would get tearful. Ah, but again, that's a common thing that we see at times after a stroke.
When asked about Ms. Burg's mental status in 1997, Dr. Petrilla testified: "I think at times Ms. Burg was forgetful. Ah, my notes document her forgetting to eat, forgetting to use her cane. Ah, which is a common short-term memory issue in elderly patients. Ah, my notes don't really document any ah, confusion, disorientation, judgment issues." Dr. Petrilla testified: "I think it was her personality to be ah, very gentle, ah, non-confrontational. Ah, but was able to express opinions to me. Ah, and she was involved in decision making during the course of her treatment. I definitely remember that." When asked if there was anything that would have led her to believe that Ms. Burg was not competent to make decisions during 1997, Dr. Petrilla replied: "No. She had some short-term memory difficulty, in my opinion. But that does not constitute ah, a dementia or a processing problem. My notes, late in the chart, I think in 1999, show more of that." When she was asked if the medicines that Ms. Burg was taking in 1997, would have impacted her ability to take care of her business and make decisions, Dr. Petrilla replied: "Not in my opinion."
After trial, the Circuit Court entered an order December 15, 2005, finding and holding, inter alia, that Plaintiffs had failed to carry their burden of proof and dismissing Plaintiffs' petition. In its Findings of Facts and Conclusion of Law incorporated into the December 15, 2005 order by reference, the Circuit Court found, among other things, that no confidential relationship existed between Defendant and Ms. Burg and, in the alternative, that even if a confidential relationship did exist that Defendant had rebutted the presumption of undue influence by clear and convincing evidence. The Circuit Court specifically found, among other things, that Ms. Burg's nephews "because they had their own lives to live, . . . weren't close to her anymore and hadn't been for some long period of time," that Defendant was the individual closest to Ms. Burg having a relationship that Defendant described as "a mother and son relationship from his standpoint . . . ," that there were no acts of fraud or duress, and, that "[i]t was not unnatural for [Ms. Burg] to do what she did." The Circuit Court found that the Will and the Lease were executed of Ms. Burg's own free-will. The Circuit Court also specifically found Defendant to be a credible witness and found that in 1997, Ms. Burg "was still that independent woman and knew what she wanted to do; had her opinion; she was not someone that you were going to get to do something that she didn't want to do." The Circuit Court further held that its findings and holdings on these issues rendered the issue of an accounting moot.
Plaintiffs appeal to this Court.
Discussion
Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1) whether the Circuit Court erred in finding that no confidential relationship existed between Defendant and Ms. Burg; and, 2) whether the Circuit Court erred in finding that even if a confidential relationship did exist Defendant had rebutted the presumption that undue influence was exerted upon Ms. Burg regarding the execution of the Will and the Lease. Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
We first consider whether the Circuit Court erred in finding that no confidential relationship existed between Defendant and Ms. Burg. As this Court discussed in Delapp v. Pratt :
A confidential relationship is "that relationship where confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with the ability, because of that confidence, to influence and exercise dominion over the weaker or dominated party."
* * *
Bills v. Lindsay, 909 S.W.2d 434, 440 (Tenn.Ct.App. 1993) (quoting Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn.Ct.App. 1973)).
It is well settled in Tennessee "that the existence of a confidential relationship, followed by a transaction wherein the dominant party receives a benefit from the other party, a presumption of undue influence arises, that may be rebutted only by clear and convincing evidence of the fairness of the transaction." Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995).
Delapp v. Pratt , 152 S.W.3d 530, 540 (Tenn.Ct.App. 2004).
A careful review of the record reveals that Ms. Burg did place confidence in Defendant. Ms. Burg added Defendant's name on her checking and savings accounts as a joint signor and named Defendant as her attorney-in-fact on her living will and power of attorney. Ms. Burg relied upon Defendant to balance her accounts and pay her bills. Defendant testified as to how he assisted Ms. Burg in having repairs made to her home. Ms. Burg relied upon Defendant to bring her meals on a daily basis, to assist her with her daily medications, and to assist her with breathing treatments on an as needed basis. Ms. Burg clearly placed confidence in Defendant and Defendant was clearly the dominant personality. Given this confidence placed in Defendant by Ms. Burg, Defendant had the ability to influence and exercise dominion over Ms. Burg. As such, we hold that a confidential relationship did exist between Defendant and Ms. Burg. The confidential relationship between Defendant and Ms. Burg gives rise to a presumption of undue influence. This brings us to the second issue on appeal, whether the Circuit Court erred in finding that even if a confidential relationship did exist, Defendant had rebutted by clear and convincing evidence the presumption that undue influence was exerted upon Ms. Burg regarding the execution of the Will and the Lease. As we discussed in Delapp :
It is rare to find direct evidence of undue influence. Id. at 88. Usually, to prove undue influence, one "must prove the existence of suspicious circumstances warranting the conclusion that the person allegedly influenced did not act freely and independently." Id. "The suspicious circumstances most frequently relied upon to establish undue influence are: (1) the existence of a confidential relationship between the testator and the beneficiary, (2) the testator's physical or mental deterioration, and (3) the beneficiary's active involvement in procuring the will." Id. at 89. Some other recognized suspicious circumstances are:
(1) secrecy concerning the will's existence; (2) the testator's advanced age; (3) the lack of independent advice in preparing the will; (4) the testator's illiteracy or blindness; (5) the unjust or unnatural nature of the will's terms; (6) the testator being in an emotionally distraught state; (7) discrepancies between the will and the testator's expressed intentions; and (8) fraud or duress directed toward the testator.
Mitchell v. Smith , 779 S.W.2d 384, 388 (Tenn.Ct.App. 1989). "The courts have refrained from prescribing the type or number of suspicious circumstances that will warrant invalidating a will on the grounds of undue influence." Id.
Delapp , 152 S.W.3d at 540-41. Plaintiffs argue on appeal that there exist suspicious circumstances that ought to invalidate the Will and the Lease including, among other things, checks written from Ms. Burg's account to Defendant, Mr. Sutherland, and Mr. Sampley; ATM withdrawals from Ms. Burg's account; the fact that Ms. Burg had prepared a previous will leaving her estate to her nephews; and the fact that Defendant was involved in the drafting of the Will. However, Defendant had an explanation for each of these alleged suspicious circumstances, and it is crucial to note that the Circuit Court specifically found Defendant to be a credible witness. In Wells v. Tennessee Bd. of Regents, our Supreme Court discussed witness credibility stating:
Unlike appellate courts, trial courts are able to observe witnesses as they testify and to assess their demeanor, which best situates trial judges to evaluate witness credibility. See State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn.Ct.App. 1991). Thus, trial courts are in the most favorable position to resolve factual disputes hinging on credibility determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc. , 778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald , 971 S.W.2d 25, 29 (Tenn.Ct.App. 1998). Accordingly, appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc. , 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc. , 567 S.W.2d 169, 170 (Tenn. 1978).
Wells v. Tennessee Bd. of Regents , 9 S.W.3d 779, 783 (Tenn. 1999). This Court explained this principle of appellate review in some detail in Mitchell v. Archibald stating:
The most often cited reason for this principle can be traced to the fact that trial judges, unlike appellate judges, have an opportunity to observe the manner and demeanor of the witnesses while they are testifying. See Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn.Ct.App. 1991). There are, however, other reasons for this principle. As the United States Supreme Court has observed:
The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.
Anderson v. City of Bessemer City , 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).
Mitchell v. Archibald , 971 S.W.2d 25 (Tenn.Ct.App. 1998) (declining to re-weigh the evidence and make an independent determination of witness credibility in an appeal involving an official record in a videotape rather than a written transcript).
The Circuit Court saw and heard the witnesses and specifically found Defendant to be a credible witness. We give great deference to this finding. A careful review of the record fails to reveal clear and convincing evidence sufficient to overturn this finding of credibility. Instead, the testimony of multiple witnesses supports the finding that Defendant is truthful and honest. In addition, the testimony of Mildred Reid, who worked for Ms. Burg during 1997, that "[Ms. Burg's] mind was sharp. There wasn't anything wrong that I know with her mind," supports Defendant's testimony that Ms. Burg executed the Will and the Lease of her own free-will.
Although we give great deference to a trial court's findings of credibility regarding witnesses who have testified live at trial, as our Supreme Court recently reiterated: "when reviewing documentary evidence, such as expert medical testimony presented by deposition, this Court draws its own conclusions and does not defer to the trial court's judgment concerning the weight and credibility of the evidence." Bryant v. Baptist Health Sys. Home Care of E. Tennessee, No. E2005-01689-SC-R3-CV, 2006 Tenn. LEXIS 1144, at *18 (Tenn. Dec. 21, 2006).
In the case now before us, Dr. Petrilla, Ms. Burg's treating physician, testified by deposition. Plaintiffs argue that Ms. Burg had multiple medical problems in 1997, and that Dr. Petrilla's notes show that Ms. Burg was "gentle, non-confrontational, forgetful and emotionally labile; crying one moment and then laughing the next," and that this evidence would support a finding of undue influence. However, Dr. Petrilla testified that in 1997, Ms. Burg suffered from some short-term memory issues, but did not suffer "confusion, disorientation, judgment issues." Dr. Petrilla testified there was nothing that would have led her to believe that Ms. Burg was not competent to make decisions during 1997. Dr. Petrilla further testified that Ms. Burg was not taking any medications in 1997, that would have impacted her ability to take care of her business and make decisions.
As Dr. Petrilla's testimony was admitted by deposition, we are in as good a position as the Circuit Court to weigh this testimony, and we find that although Ms. Burg had multiple medical issues in 1997, these medical conditions did not impact her capacity to execute the Will and the Lease. As such, the evidence regarding Ms. Burg's medical condition does not support a finding of undue influence, and instead supports the Trial Court's finding of no undue influence.
Plaintiffs also argue that the terms of the Will are unjust or unnatural. However, as this Court has previously stated "'it is not unusual for a testator to change his will to benefit an individual who has helped him during his declining years.'" In re: Estate of Branch, No. W2004-01310-COA-R3-CV, 2005 Tenn. App. LEXIS 168, at *11 (Tenn.Ct.App. March 28, 2005), no appl. perm. appeal filed (quoting Perry v. Rubley, No. 01-A-01-9801-CH-00044, 1998 Tenn. App. LEXIS 639, at *14-15 (Tenn.Ct.App. Sept. 23, 1998), no appl. perm. appeal filed).
The record on appeal reveals that Defendant assisted Ms. Burg in numerous ways during the final years of Ms. Burg's life. Defendant not only assisted Ms. Burg with financial matters, but also brought her food and made sure that she took her medications on a daily, or even more frequent basis. Defendant ran errands for Ms. Burg and made himself available to do such things as go to Ms. Burg's house to give her breathing treatments on an as needed basis. Ms. Burg clearly relied upon Defendant. Even Plaintiff George Burg admitted at trial that he believed Ms. Burg was comfortable with the care she was receiving from Defendant. As such, we find, as did the Trial Court, that it is was not unnatural for Ms. Burg to change her will to benefit Defendant, a long time close friend who helped her in her last years, rather than her nephews who admitted that they rarely even saw or spoke to her during the final years of her life.
We find and hold that the Trial Court did not err when it determined that Defendant rebutted by clear and convincing evidence the presumption that undue influence was exerted upon Ms. Burg regarding the execution of the Will and the Lease. We, therefore, affirm the Circuit Court's judgment dismissing Plaintiffs' petition. Further, we agree with the Circuit Court that this holding pretermits the necessity of addressing Plaintiffs' request for an accounting.
Conclusion
The judgment of the Circuit Court is reversed only as to its decision that no confidential relationship existed between Defendant and Ms. Burg, and the judgment as so modified is affirmed in all other respects. This cause is remanded to the Circuit Court for collection of the costs below. The costs on appeal are assessed against the Appellants, George Daniel Burg and Edward Allen Burg, and their surety.