In Re The James M. Cannon Family Trust

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 23, 2012 Session

IN RE THE JAMES M. CANNON FAMILY TRUST

Appeal from the Circuit Court for Davidson County

No. 09P-753 Randy Kennedy, Judge

No. M2011-02660-COA-R3-CV - Filed November 30, 2012

The plaintiff filed this action alleging that the defendant killed the latter’s husband thereby

forfeiting any rights she had under a trust the husband had created. After the complaint was

filed, the defendant was convicted of first degree murder in the death of her husband. The

plaintiff filed a motion for summary judgment supported by the judgment of conviction and

other documents. The defendant filed an affidavit denying any responsibility for her

husband’s death. While the motion for summary judgment was pending, the defendant filed

a motion asking the trial judge to recuse himself. The trial court denied the motion to recuse.

It then granted the motion for summary judgment. We affirm the trial court’s decision to

deny the motion to recuse but vacate the order granting the motion for summary judgment.

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

Vacated in Part and Affirmed in Part; Case Remanded

C HARLES D. S USANO , J R., J., delivered the opinion of the Court, in which H ERSCHEL P.

F RANKS, P.J., and J OHN W. M CC LARTY, J., joined.

Andrew M. Cate, Nashville, Tennessee, for the appellant, Kelley E. Cannon.

Paul A. Gontarek and Anna E. Valentine, Nashville, Tennessee, for the appellee, Equitable

Trust Company, Trustee of the James M. Cannon Family Trust.

OPINION

I.

On June 23, 2008, James M. Cannon (“the Victim”) was found dead in a closet of his

home. On April 29, 2010, his wife, Kelley E. Cannon (“the Widow”), was convicted of the

premeditated, intentional murder of the Victim. She appealed the conviction. After oral

argument in this appeal, the conviction was affirmed.1

Before his death, the Victim established the James M. Cannon Family Trust (“the

Family Trust”). After the Victim’s death, the Family Trust was funded with the proceeds of

numerous life insurance policies. Equitable Trust Company (“the Trustee”) is the present

trustee. After the Widow was charged with murder, but before her conviction, the Trustee

filed this action seeking a declaration that the Widow had forfeited all rights under the

Family Trust in light of Tenn. Code Ann. § 31-1-106 (2007), commonly known as “the

Slayer Statute.” That statute provides as follows:

Any person who kills, or conspires with another to kill, or

procures to be killed, any other person from whom the first

named person would inherit the property, either real or personal,

or any part of the property, belonging to the deceased person at

the time of the deceased person’s death, or who would take the

property, or any part of the property, by will, deed, or otherwise,

at the death of the deceased, shall forfeit all right in the property,

and the property shall go as it would have gone under §

31-2-104, or by will, deed or other conveyance, as the case may

be; provided, that this section shall not apply to any killing done

by accident or in self-defense.

Id.

The pertinent terms of the Family Trust are:

Item I

* * *

A. Upon the initial transfer to the trust and upon the

receipt by the Trustee of additional contributions during my

1

The Trustee filed a motion pursuant to Tenn. R. App. P. 14 asking that we consider, as a post-

judgment fact, the opinion of the Court of Criminal Appeals furnished as an exhibit to the Trustee’s motion.

See State v. Cannon, No. M2010-01553-CCA-R3-CD, 2012 WL 5378088 (Tenn. Crim. App., filed Oct. 30,

2012). The opinion is a matter of public record and is appropriate for consideration as a post-judgment fact

pursuant to Rule 14. However, for reasons that will be explained later in this opinion, the resolution of the

criminal appeal is not sufficient to sustain the grant of summary judgment.

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lifetime, the Trustee shall promptly notify those of my then

living issue, their spouses, and KELLEY S. CANNON, who I

hereinafter refer to as my wife, that are specifically named in the

instrument of transfer, that they shall have the rights listed in

Paragraph B of this Item. . . . All notices shall be mailed by

U.S. mail, with the notice of a donee who is a minor being sent

to his or her natural parent who is my issue, or, if none, to his or

her guardian. . . .

* * *

Item II

* * *

A. During the period prior to the death of the last to die

of my wife and me . . ., the Trustee is authorized to distribute the

trust income and principal to or for the benefit of my wife and

issue in such amounts and proportions among them as the

Trustee, in his sole discretion, deems advisable for their support,

health, education, and maintenance in reasonable comfort. . . .

While the right to determine the recipients of the distributions

lies solely with the Trustee, in making any distributions, the

Trustee shall: (i) advise my wife before making any distribution

to my issue; and (ii) bear in mind that my primary purpose in

establishing this trust is to provide a source of assets that will be

available to my wife during her lifetime. Nevertheless, due to

the ability of the assets hereunder to pass for the benefit of my

issue without the imposition of transfer taxes, it is my desire that

the Trustee only make distributions to my wife in the event that

she has exhausted the other sources of trust assets available to

her that will, in all likelihood, give rise to estate tax upon her

death. . . . . Upon the death of my wife, all of her interest in this

trust shall cease.

* * *

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Item III

* * *

F. Since it is my desire that the responsibilities of

becoming the Guardian of my minor children not negatively

effect the Guardian’s ability to maintain the standard of living

that he or she would have enjoyed had he or she not become the

Guardian, if a Guardian of my minor children is legally

appointed following the death of the Survivor, then the Trustee

is authorized to make distributions of income or principal to or

for the benefit of such Guardian from the trusts created for my

children hereunder in order to provide for such Guardian’s

ordinary living expenses or medical needs. . . .

* * *

Item V

* * *

E. The Trustee shall not be required to render an

accounting to any court; however, an annual accounting of each

trust herein created shall be rendered to my wife. Upon her

death, or if she predeceases me, the annual accounting shall be

rendered to the then primary beneficiaries (or their guardians).

* * *

Item VII

* * *

B. My wife may direct the Trustee either to make any

unproductive property of the Marital Trust (if any is in

existence) productive or to convert such unproductive property

to productive property. Such direction shall be in writing. The

Trustee shall have a reasonable time within which to comply

with such direction by either approach that he deems more

appropriate.

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(Capitalization, bold print and underlining in original.)

In her answer, the Widow asserted her innocence as to the murder. She filed a motion

for an accounting. The Trustee responded to the motion asserting that the Widow had no

rights under the Family Trust in light of her conviction. The Widow replied that she was

innocent and, even if she were guilty, some of the rights, such as the right to be provided with

notices and an accounting, are not conditioned upon her right to inherit. The trial court

ordered the Trustee to file an accounting under seal, subject to disclosure only to the court

and the Widow’s counsel. The court specifically ordered the Widow’s counsel not to divulge

to the Widow any of the information contained in the accounting.

The Trustee filed a motion for summary judgment along with a statement of

undisputed facts. Exhibits to the motion include the indictment and judgment of conviction.

In response to the Trustee’s statement of undisputed facts, the Widow admitted that she had

been convicted, but asserted that (1) the conviction was pending on appeal and (2) she “has

maintained her innocence throughout the criminal proceedings and in all related civil matters,

including this cause. . . .” The Widow filed an affidavit in support of her position that states:

“I am not in any way responsible for the death of my Husband, James Malcolm Cannon.”

While the motion for summary judgment was pending, the Widow filed a motion

asking the trial judge to recuse himself. The sole ground stated in the motion was that the

Victim’s attorney, John Hollins, Jr., filed a pleading in a matter he initiated against the

Widow’s counsel with the Board of Professional Responsibility, which pleading allegedly

“involves the Court to an extent that the Court’s impartiality might reasonably be questioned

and [indicates] that the Court has personal knowledge of disputed evidentiary facts

concerning the proceeding.” The exhibits to the motion to recuse include much, if not all,

of the file in the disciplinary matter. Among the exhibits are orders signed by the present

trial judge in other proceedings which (1) allowed the Victim’s sister to cremate the Victim’s

body, (2) ordered that custody of the Widow’s children be with someone other than the

Widow, and (3) granted an application for fees requested by Mr. Hollins in the Victim’s

estate over the objection of the Widow’s counsel.

The trial court denied the motion to recuse, but granted the motion for summary

judgment. With regard to the motion to recuse, the court found that “there is simply no

evidence in the record that would prompt a reasonable, disinterested person to believe that

this Court’s impartiality might reasonably be questioned in this matter.” With regard to the

motion for summary judgment, the court acknowledged the Widow’s claim of innocence in

her affidavit but determined “that this ‘fact’ is not material to the Court’s consideration of

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the Trustee’s Motion for Summary Judgment and therefore does not preclude the Court from

ruling on the Trustee’s claim for declaratory relief.” The court held that the Widow

has forfeited all right, title and interest in the Family Trust based

on her conviction in the premeditated, unlawful, and intentional

killing of [the Victim]. . . . In addition, the Court DECLARES

that [the Widow] has forfeited any rights that she may have

under terms of the Family Trust to receive information

concerning the administration of the Family Trust.

(Capitalization in original.)

II.

The issues as stated verbatim from the Widow’s brief are:

Do the undisputed facts from the record support a ruling that, as

a matter of law, . . . all of [the Widow’s] rights and interest in

the . . . Family Trust should be forever terminated?

Did the trial judge abuse his discretion by failing to recuse

himself in this cause?

III.

A trial court’s order granting summary judgment is subject to a de novo review. No

presumption of correctness attaches to the order. Sykes v. Chattanooga Housing Authority,

343 S.W.3d 18, 26 (Tenn. 2011). This means that, “[o]n appeal, we must freshly determine

whether the requirements of Tenn. R. Civ. P. 56 have been met.” Hunter v. Brown, 955

S.W.2d 49, 50 (Tenn. 1997). As we said in Sykes:

Summary judgment is appropriate only when the moving party

can demonstrate that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law. Tenn. R.

Civ. P. 56.04; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5

(Tenn. 2008); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).

In Hannan, this Court reaffirmed the basic principles guiding

Tennessee courts in determining whether a motion for summary

judgment should be granted, stating:

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The moving party has the ultimate burden of

persuading the court that “there are no disputed,

material facts creating a genuine issue for trial . . .

and that he is entitled to judgment as a matter of

law.” Byrd, 847 S.W.2d at 215. If the moving

party makes a properly supported motion, the

burden of production then shifts to the non-

moving party to show that a genuine issue of

material fact exists.

Id. at 25. Further,

[t]he standard by which our courts must assess the evidence

presented in support of, and in opposition to, a motion for

summary judgment is also well established:

Courts must view the evidence and all reasonable

inferences therefrom in the light most favorable to

the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of

summary judgment is appropriate only when the

facts and the reasonable inferences from those

facts would permit a reasonable person to reach

only one conclusion. Staples v. CBL & Assocs.,

Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn.

2009). This Court stated the applicable summary judgment

standard in Martin as follows: “the non-moving party’s

evidence must be accepted as true, and any doubts concerning

the existence of a genuine issue of material fact shall be

resolved in favor of the non-moving party.” Martin, 271

S.W.3d at 84 (citing McCarley v. W. Quality Food Serv., 960

S.W.2d 585, 588 (Tenn. 1998)).

Id. at 26.

A trial court’s ruling on a motion for recusal is reviewed for an abuse of discretion.

Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009):

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Such a decision “will not be reversed unless a clear abuse [of

discretion] appears on the face of the record.” Davis v. Liberty

Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001) (alteration in

original). “[A] trial court has abused its discretion only when

the trial court has applied an incorrect legal standard, or has

reached a decision which is illogical or unreasonable and causes

an injustice to the party complaining.” State v. Ruiz, 204

S.W.3d 772, 778 (Tenn. 2006).

Id.

IV.

The Widow argues that her affidavit creates a genuine issue of material fact as to

whether she killed the Victim. The effect of a murder conviction in a civil action brought

pursuant to the Slayer Statute was examined closely in Wilkerson v. Leath, No E2011-

00467-COA-R3-CV, 2012 WL 2361972 (Tenn. Ct. App. E.S., filed June 22, 2012). In

Wilkerson, the trial court granted summary judgment against a beneficiary who, like the

Widow, had been convicted of murdering her husband. The conviction was appealed.

Unlike the present case, the criminal appeal was not decided by the time we released our

opinion in the civil case. The only basis for the summary judgment was the criminal

conviction. We reversed. We held that the criminal conviction could not be given res

judicata or collateral estoppel effect because (1) the parties in the criminal prosecution and

the civil action were neither the same nor were they in privity, and (2) the appeal of the

criminal conviction prevented it from becoming a final judgment. Id. at 6. We also

discussed the status of the conviction as evidence:

While the judgment of conviction does not have preclusive

effect, it may still be relevant and admissible upon remand to

prove facts essential to sustain the judgment at trial, namely that

Wife killed Husband. Indeed, the judgment of conviction may

be admitted pursuant to Rule 803(22) of the Tennessee Rules of

Evidence, which provides,

Evidence of a final judgment adjudging a person

guilty of a crime punishable by death or

imprisonment in excess of one year to prove any

fact essential to sustain the judgment, but not

including, when offered by the prosecution in a

criminal case for purposes other than

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impeachment, judgments against persons other

than the accused. The pendency of an appeal may

be shown but does not affect admissibility.

(Emphasis added). Before admitting the judgment of

conviction, the court “must find that the probative value of the

prior conviction is not substantially outweighed by the risk of

unfair prejudice.” State v. Scarbrough, 181 S.W.3d 650, 660

(Tenn. 2005) (citing [Tenn. R. Evid.] 403). If admitted, the

judgment of conviction cannot be considered as “conclusive

evidence of the facts necessarily determined in the underlying

criminal proceeding.” In re T.H., No. 01A01-9412-JV-00600,

1996 WL 165511, at *2-3 (Tenn. Ct. App. Apr. 10, 1996)

(citation omitted). Wife may “contest the conviction by

introducing contrary evidence and argument” because the

conviction is “simply evidence” and is “not entitled to

preclusive effect under collateral estoppel.” Scarbrough, 181

S.W.3d at 660.

Id. at *7.

The Trustee acknowledges the holdings of Wilkerson, but argues that in the present

case it is using the Widow’s conviction as evidence and not seeking to give it preclusive

effect. The Trustee even acknowledges that the Widow can challenge the conviction with

contrary evidence. The Trustee argues that the Widow’s affidavit supplies absolutely no

facts and is no more than a “conclusory” proclamation of the Widow’s innocence. The trial

court apparently agreed; it stated that any “fact” set forth in the affidavit is “not material to

the Court’s consideration” of the merits of the motion. The Trustee cites two cases for the

proposition that a conclusory statement will not prevent a court from granting a summary

judgment. Mechanics Laundry Serv. v. Auto Glass Co., 98 S.W.3d 151, 158 (Tenn. Ct.

App. 2002); Davis v. Campbell, 48 S.W.3d 741, 747 (Tenn. Ct. App. 2001). Both cases are

distinguishable. In Mechanics Laundry, the party made the assertion, without stating any

particulars, that an employee of the other party had authority to execute a contract, but the

other party and the employee both testified specifically by affidavit that she had never been

given such authority. 98 S.W.3d at 157. Davis was a case filed by a prisoner pro se

challenging his release date as calculated by Commissioner of Correction. 48 S.W.3d at 745.

The best we can tell the prisoner did not file an affidavit but did file numerous documents

that had been used to calculate his release date. Id. at 748. Those documents established as

a matter of law that his release date had been calculated correctly. Id. Neither Mechanics

Laundry nor Davis has any application to the present case. In this case, the Widow said, in

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effect, that she did not kill her husband. Here we are dealing with a “fact” not a conclusion.

What the Widow said in her affidavit would be admissible at a trial on the merits.

The Widow’s affidavit must be taken in a light most favorable to her and all

reasonable inferences that it will support must be drawn in her favor. Sykes, 343 S.W.3d at

26. A logical reading of her affidavit is that she did not kill the Victim and she did not hire

anyone to kill the Victim. While the Widow’s affidavit is concise, it is not conclusory. The

testimony, if taken as true, is based upon her personal knowledge. See. Tenn. R. Civ. P.

56.06. The testimony is “material” because it directly addresses an element of the Slayer

Statute. See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)(courts must examine the

elements of the claim or defense to see whether the resolution of the fact will effect a claim

or defense). The affidavit creates a “genuine” issue because if it is taken as true, without

weighing it against the conviction – the procedure that must be followed at this summary

judgment stage – it would support a finding that the Widow did not kill the Victim. She will

no doubt face some vigorous cross-examination if she takes the witness stand in the civil

trial, but, as previously noted, weighing of the evidence is not for the summary judgment

stage. We hold that the Widow’s affidavit created a genuine issue of material fact as to

whether she killed the Victim. Accordingly, we hold that the trial court erred in granting the

Trustee summary judgment.

The Widow makes an alternative argument that even if she has no right to inherit, she

has not forfeited any rights that she may have under the terms of the Family Trust “to receive

information concerning the administration of the Family Trust.” The trial court based its

holding that the Widow had no right to receive reports solely on the basis of forfeiture under

the Slayer Statute. Since we have vacated that holding, we do not reach the merits of the

Widow’s alternative argument. Our holding, however, does not necessarily mean that the

Widow is immediately entitled to the accounting and to all reports mentioned in the Family

Trust. She argues that she is entitled to this information to protect the assets of her children.

The record indicates that the Widow is presently incarcerated and that her children are now

in the custody of someone else. These are facts we cannot ignore despite the rules applicable

to summary judgment motions. We also cannot ignore that the incarceration is for the

murder of the children’s father. A guardian ad litem was appointed in the present case to

protect the interests of the children. Our reversal of the summary judgment should not be

interpreted as precluding the court from considering suspending or terminating the reporting

requirements on some ground other than forfeiture under the Slayer Statute. Our holding

means nothing more than that the trial court erred in terminating all of the Widow’s rights

under the Family Trust by summary judgment on the basis of forfeiture under the Slayer

Statute.

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We move now to the issue of the trial judge’s denial of the recusal motion. The

Widow’s argument that the trial judge abused his discretion is apparently based on the idea

that we should infer bias because the trial judge has ruled against her numerous times in

numerous proceedings since the death of her husband. As the Supreme Court noted in the

case of Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560 (Tenn. 2001):

However, the mere fact that a judge has ruled adversely to a

party or witness in a prior judicial proceeding is not grounds for

recusal. . . . If the rule were otherwise, recusal would be

required as a matter of course since trial courts necessarily rule

against parties and witnesses in every case, and litigants could

manipulate the impartiality issue for strategic advantage, which

the courts frown upon.

Id. at 565 (citations omitted). The Widow tries to bolster her case by arguing that the trial

judge’s rulings were very prejudicial to her. For example, she argues that by allowing the

Victim’s body to be cremated, the trial judge allowed the destruction of crucial evidence in

the criminal trial. However, the order allowing the cremation references a “sworn statement

of [the Widow] that she is making no further and will make no further objection to the

cremation of the bodily remains of [the Victim].” Also, the Widow’s brief makes it clear that

the disciplinary proceeding, in which the trial judge was allegedly implicated as a witness,

has been dismissed. It was the Widow’s obligation, as the party moving for recusal, to come

forward with evidence that would cause a reasonable, disinterested person to believe that the

trial judge was biased. Davis v. Tennessee Dep’t of Employment Security, 23 S.W.3d 304,

313 (Tenn. Ct. App. 1999). Our review of the record confirms the trial court’s conclusion

that the Widow failed to carry her burden of demonstrating actual bias or an appearance of

bias. Accordingly, we hold that the trial court did not abuse its discretion in denying the

motion for recusal.

V.

The judgment of the trial court is vacated in part and affirmed in part. The order

granting summary judgment is vacated. The order denying the motion for recusal is

affirmed. Costs on appeal are taxed to the appellee, Equitable Trust Company, Trustee of

the James M. Cannon Family Trust. This matter is remanded to the trial court for further

proceedings consistent with this opinion.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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