Tia Gentry v. Dale Larkin

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 23, 2012 Session

TIA GENTRY v. DALE LARKIN

Appeal from the Circuit Court for Washington County

No. 29358 Jean A. Stanley, Judge

No. E2011-02402-COA-R3-CV - Filed July 13, 2012

This appeal arises from a dispute over the settlement of a lawsuit. Teresa Larkin died in

2003, with her life insurance proceeds and her estate passing to her husband, Dale Larkin

(“Larkin”). Teresa Larkin’s minor daughter, Tia Gentry (“Gentry”), sued Larkin, her

stepfather, alleging that he caused the death of her mother and that, as a result, he should not

receive any life insurance proceeds or inheritance because of the “Slayer’s Statute.” Gentry

and Larkin settled the lawsuit and split the life insurance proceeds and the estate of Teresa

Larkin. Later, Larkin was convicted of first degree murder in the death of Teresa Larkin.

Gentry filed this suit in the Circuit Court for Washington County (“the Trial Court”), seeking

to overturn the agreement based upon fraud in the inducement as Larkin had represented that

he did not kill Teresa Larkin. Larkin filed a motion to dismiss. The Trial Court held that the

issues in this lawsuit already had been, or could have been, litigated, and, as inequitable as

the result might seem in light of Larkin’s conviction for first degree murder in the death of

Teresa Larkin, Gentry’s lawsuit must be dismissed. Gentry appeals. We affirm the judgment

of the Trial Court.

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

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,

J R., and J OHN W. M CC LARTY, JJ., joined.

Daniel B. Minor and William T. Wray, Kingsport, Tennessee, for the appellant, Tia Gentry.

Thomas C. McKee and Charles J. London, Johnson City, Tennessee, for the appellee, Dale

Larkin.

OPINION

Background

Teresa Larkin died in 2003. The minor Gentry, through her natural father,

Tony Garland Gentry, filed a wrongful death lawsuit against Larkin and several insurance

companies. In her complaint, Gentry alleged that Larkin, either intentionally or negligently,

killed Teresa Larkin. The complaint stated that Larkin was the named beneficiary under four

life insurance policies carried by Teresa Larkin at the time of her death. The sum of these

life insurance proceeds was approximately $703,0001 . Gentry argued that under the so-called

“Killing Statute,” Larkin could not receive any of the insurance money. Gentry further

alleged that she suffered grievous harm and trauma as a result of discovering the body of her

mother. Gentry sought $5,000,000 in compensatory damages and $5,000,000 in punitive

damages, as well as costs.2

Mediation efforts were initiated in the first lawsuit. All throughout this period,

and, through the present date, Larkin has denied killing Teresa Larkin. At that point in the

history of these parties, the relevant state officials declined to prosecute Larkin in connection

with the death of Teresa Larkin. A settlement was reached in 2006. In August 2006, the

Law Court for Washington County entered its “Order of Compromise and Dismissal, Order

to Enforce Mediated Agreement and Order Approving Minor’s Settlement.” Under the

approved settlement, Gentry received, among other things, $500,000 in insurance proceeds,

of which $180,000 went for her attorney’s fees. It bears repeating that were it not for

Gentry’s intervention on the basis of the “Slayer’s Statute,” Larkin would have received all

of the insurance proceeds as the sole designated beneficiary.

Several pertinent events occurred after the mediated settlement of the first

lawsuit. Teresa Larkin’s body was exhumed and additional examinations led to a shift in the

Teresa Larkin death investigation. Larkin eventually was charged and convicted of first

degree murder in the death of Teresa Larkin.3 In April 2011, Gentry, no longer a minor, sued

Larkin in the Trial Court. In this April 2011 complaint, Gentry alleged, among other things,

that Larkin had committed deceit and fraud in the inducement as to the settlement of her first

lawsuit. Specifically, Gentry alleged that she, her counsel, her Guardian Ad Litem, and the

Law Court for Washington County all were defrauded by Larkin’s persistent denial of his

1

Gentry, in her later lawsuit, states this figure actually was around $1,300,000.

2

This appeal arises from the disposition of a motion to dismiss. We lack a trial transcript or

statement of the evidence. However, we do have a transcript of the hearing on the motion to dismiss.

3

We understand that Larkin has appealed his conviction for first degree murder.

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having killed Teresa Larkin. Larkin filed a motion to dismiss, essentially arguing that the

second lawsuit was the same as the first, save for the claim of fraudulent inducement, and

that the matter had been resolved by the mediated settlement.

The Trial Court heard arguments from the parties’ respective counsels on

Larkin’s motion to dismiss in September 2011. Subsequently, in October 2011, the Trial

Court entered its order on Larkin’s motion to dismiss, stating:

The defendant has filed a Motion to Dismiss this action. He argues that

this suit is essentially identical to a previous suit filed on behalf of the plaintiff

against him which was subsequently settled and an Order entered thereon.

(Gentry v. Larkin, Law Court of Johnson City, TN, Civil Action No. 23938).

The Court agrees that the facts alleged in both cases are the same and that the

settlement entered into between the parties was acknowledged as a “doubtful

and disputed claim.” The prior Order stated in paragraph 21 the following:

“This Order constitutes a full and final settlement of all causes

of action of Tia Gentry by next friend Tony Garland Gentry

and/or Tony Garland Gentry against the defendant, Dale K.

Larkin, for any and all causes of action arising from the death of

Teresa K. Larkin.”

In the new lawsuit, plaintiff asserts that the settlement in the previous

lawsuit was obtained by the defendant on the basis of deceit and fraud in the

inducement. However, as defendant points out, plaintiff’s counsel is the same

in both actions, plaintiff asserts now as she did then that Mr. Larkin was the

perpetrator of her mother’s death, and the investigation was ongoing into Ms.

Larkin’s death when the settlement was reached.

It appears to the Court that this is a subsequent suit between the same

litigants on the same cause of action with respect to all the issues which were

or could have been brought in the former suit. The fact that Mr. Larkin has

subsequently been convicted of first degree murder does not change that fact,

as inequitable as it may seem. Therefore, the Court concludes that a Final

Order has been entered in this cause and there are no grounds upon which this

Court will set aside that Order. The Motion to Dismiss is granted. Court costs

are taxed to the plaintiff.

Gentry appeals.

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Discussion

We restate the issues Gentry raises on appeal as follows: 1) whether the Trial

Court erred in failing to grant Gentry relief under Rule 60.02 of the Tennessee Rules of Civil

Procedure; and, 2) whether the Trial Court erred in declining to find that Gentry was

fraudulently induced by Larkin in the mediation agreement.

The Trial Court ruled on this case in the context of a motion to dismiss.

However, we are not convinced that the Trial Court excluded considerations outside the

pleadings in rendering its order. Therefore, we will treat the disposition of this case as

though it were based on summary judgment, and we will apply the summary judgment

standard of review as it applied to this case. Our Supreme Court reiterated the standard of

review in summary judgment cases as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “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.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

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v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

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). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

The so-called “Slayer’s Statute” or “Killing Statute,” the law at the heart of this

current controversy, provides:

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.

Tenn. Code Ann. § 31-1-106 (2007).

Rule 60.02 of the Tennessee Rules of Civil Procedure, upon which, in part,

Gentry seeks relief in this matter, provides:

On motion and upon such terms as are just, the court may relieve a party or the

party's legal representative from a final judgment, order or proceeding for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)

fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; (3) the judgment

is void; (4) the judgment has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or otherwise vacated, or it

is no longer equitable that a judgment should have prospective application; or

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(5) any other reason justifying relief from the operation of the judgment. The

motion shall be made within a reasonable time, and for reasons (1) and (2) not

more than one year after the judgment, order or proceeding was entered or

taken. A motion under this Rule 60.02 does not affect the finality of a

judgment or suspend its operation, but the court may enter an order suspending

the operation of the judgment upon such terms as to bond and notice as to it

shall seem proper pending the hearing of such motion. This rule does not limit

the power of a court to entertain an independent action to relieve a party from

a judgment, order or proceeding, or to set aside a judgment for fraud upon the

court. Writs of error coram nobis, bills of review and bills in the nature of a

bill of review are abolished, and the procedure for obtaining relief from a

judgment shall be by motion as prescribed in these rules or by an independent

action.

Tenn. R. Civ. P. 60.02.

We first address whether the Trial Court erred in failing to grant Gentry relief

under Rule 60.02 of the Tennessee Rules of Civil Procedure. Both parties invoke the case

of Black v. Black, 166 S.W.3d 699 (Tenn. 2005), wherein the Tennessee Supreme Court

discussed allegations of fraud in the context of relief under Rule 60.02. In Black, a wife sued

her husband two years after their divorce was finalized, claiming, among other things, that

she had been coerced by her then husband into signing the marital dissolution agreement and

that her husband had fraudulently stated his worth. Id. at 701-02. Husband filed a motion

to dismiss for failure to state a claim, which the trial court granted. Id. at 702. Wife

appealed. The Court of Appeals held that the wife’s complaint was actually an independent

action for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure, but that wife

had failed to articulate facts of extrinsic fraud as required. Id. The Tennessee Supreme

Court affirmed the Court of Appeals, stating in relevant part:

A motion filed under Rule 60.02 “shall be made within a reasonable time, and

for reasons (1) and (2) not more than one year after the judgment, order or

proceeding was entered or taken.” Tenn. R. Civ. P. 60.02; see also Killion,

845 S.W.2d at 213–14.

Because the Wife filed her complaint in the chancery court, rather than

filing a motion in the circuit court within one year of the entry of the final

divorce decree, the complaint cannot be considered as a motion for relief from

the divorce decree under sections (1) though (5) of Rule 60.02.

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Rule 60.02, however, also contains a “savings” provision, which

clarifies that the rule “does not limit the power of a court to entertain an

independent action to relieve a party from a judgment, order or proceeding, or

to set aside a judgment for fraud upon the court.” See Tenn. R. Civ. P. 60.02

(emphasis added). Although there is no time limit for filing an independent

action to set aside a judgment, it may be granted “only under unusual and

exceptional circumstances” and “where no other remedy is available or

adequate.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 229–30 (Tenn. Ct.

App. 2000) (citing Jerkins v. McKinney, 533 S.W.2d 275, 281 (Tenn. 1976)).

Although a motion to set aside a judgment for fraud under section 2 of

Rule 60.02 may be based on intrinsic or extrinsic fraud, an independent action

to set aside a judgment under the savings provision of Rule 60.02 requires

extrinsic fraud. Whitaker, 32 S.W.3d at 230; see also New York Life Ins. Co.

v. Nashville Trust Co., 200 Tenn. 513, 292 S.W.2d 749, 751–53 (1956)

(independent action to set aside judgment requires extrinsic fraud). Intrinsic

fraud occurs “within the subject matter of the litigation,” and it includes such

things as falsified evidence, forged documents, or perjured testimony.

Whitaker, 32 S.W.3d at 230. Extrinsic fraud, on the other hand, “involves

deception as to matters not at issue in the case which prevented the defrauded

party from receiving a fair hearing.” Nobes v. Earhart, 769 S.W.2d 868, 874

(Tenn. Ct. App.1988). Examples of extrinsic fraud have included keeping a

party from filing a lawsuit by falsely promising a compromise, keeping a party

from knowing about a lawsuit, and an attorney's claiming to represent a party

while acting in a manner opposed to the party. See id.

Although the Wife's complaint was entitled “Complaint for Damages

for Fraud, Deceit, and Coercion” and sought relief in the form of

compensatory and punitive damages, the Court of Appeals concluded that the

substance of the complaint was an independent action under Rule 60.02 to set

aside the final divorce decree entered on December 12, 2000. We agree.

The complaint alleges that the Husband acted fraudulently by

withholding the identity and value of his property and securities before the

MDA was executed on September 13, 2000. The allegations conflicted with

the language of the MDA, which stated in part that the MDA was “fair and

reasonable” and “not the result of any fraud, duress, or any undue influence

exercised by either party herein upon the other, or by any other person or

persons upon either of the parties.” The allegations also conflicted with the

language of the amended MDA, which was executed on November 29, 2000,

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and which ratified and affirmed the provisions of the initial MDA. There is no

dispute that both the MDA and the amended MDA were incorporated into the

final divorce decree, which was entered by the circuit court on December 12,

2000. In sum, the complaint, even when viewed in a light most favorable to

the Wife, was an independent action alleging fraud and seeking relief from the

final divorce decree entered on December 12, 2000, in the Shelby County

Circuit Court.

As a result, we further agree with the Court of Appeals' conclusion that

the Wife's complaint did not allege sufficient facts to establish extrinsic fraud

as required by the savings provision of Rule 60.02. As discussed above, the

complaint alleged that the Husband “fraudulently concealed his true net worth”

by withholding the identity and value of his property, securities, law practice,

equipment and furnishings. Although these assertions concerned the subject

matter of the litigation and may have been sufficient to establish intrinsic fraud

had they been pursued within one year of the divorce decree under section 2

of Rule 60.02, there were no assertions of fraud indicative of “deception as to

matters not at issue in the case ” that “prevented the [appellant] from receiving

a fair hearing.” See Nobes, 769 S.W.2d at 874 (emphasis added).

Black, 166 S.W.3d at 703-04.

Thus, Black stands for the proposition that claims under Rule 60.02 for intrinsic

fraud must be brought within a year from the judgment in question. Larkin argues that the

type of fraud alleged by Gentry in this case is intrinsic, rather than extrinsic fraud, and we

agree. Gentry alleges that Larkin committed fraud by denying his involvement in the death

of Teresa Larkin. This allegation falls squarely within the definition of intrinsic fraud as it

concerns the subject matter of the case. Therefore, under the provisions of Black, Gentry is

not permitted to bring an independent action based on intrinsic fraud under the savings

provision of Rule 60.02.

Gentry argues the statute of limitations should be tolled on account of her

minority status at the time of the mediated settlement, citing Tenn. Code Ann. § 28-1-106,

as well as Tenn. Code Ann. § 28-3-105. We disagree. First, we observe that Gentry raises

this issue for the first time on appeal. Furthermore, Gentry, with her father acting on her

behalf, with the assistance of her counsel and her Guardian Ad Litem, and with judicial

approval, entered into a mediated settlement that purported to resolve all the causes of action

arising from the death of Teresa Larkin. There were a number of safeguards in place to

account for Gentry’s minority. We do not believe that the statute of limitations governing

either a claim for fraud or the limitation period on Rule 60.02 relief is tolled by minority

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status where the minor, with all the requisite safeguards, entered into a judicially approved

and mediated settlement. Such a result could undermine the integrity of all settlements

entered into by minors acting through next friends and guardian ad litems, and would have

a serious chilling effect as to parties settling lawsuits involving minors.

While our resolution of Gentry’s first issue is dispositive, we, erring on the side

of caution, will address whether the Trial Court erred in declining to find that Gentry was

fraudulently induced by Larkin in the mediation agreement. Gentry argues strenuously that

Larkin, by his denial of having killed Teresa Larkin, committed fraud and deceit, which, in

light of his later conviction by jury for first degree murder in the death of Teresa Larkin,

fatally undermines the mediated settlement in this case.

We, however, do not believe that what Gentry alleges constitutes actionable

fraud. It is undisputed that Gentry never relied on Larkin’s representation that he did not kill

Teresa Larkin. Gentry instead has always maintained that Larkin did kill Teresa Larkin.

Indeed, if Gentry believed Larkin’s representation that he did not kill Teresa Larkin, then the

result would be that Gentry would have been entitled to none of the insurance proceeds

because Larkin was the sole named beneficiary. Gentry may now be dissatisfied with the

settlement, but Larkin’s murder conviction does not alter the fact that she, albeit as a minor

through adult intermediaries, arrived at a bargained-for agreement that subsequently was duly

approved and entered by the Law Court for Washington County. Both parties in this

effectively winner-takes-all dispute risked losing at trial, and the agreement eliminated the

risk of loss for both parties. Gentry has failed to persuade us that Larkin’s assertions of

innocence in the death of Teresa Larkin, assertions that apparently carry on today, deceitfully

influenced her settlement as her entire case against Larkin has always rested entirely on a

scenario whereby Larkin killed Teresa Larkin in a manner covered by the “Slayer’s Statute.”

There was no reliance by Gentry on Larkin’s assertions of innocence, and without any such

reliance there can be no actionable claim for fraud. See Brown v. Birman Managed Care,

Inc., 42 S.W.3d 62, 66-67 (Tenn. 2001).

Finally, we are aware that our decision may appear inequitable given the

results. This Court is not happy with the results of our decision. We, however, are not free

to decide cases based upon our personal preferences but instead must decide them based

upon the law. This appeal presents a difficult and tragic set of facts. Nevertheless, the

principle of the finality of judgments is deeply significant to our judicial system. Without

high thresholds for attempts to overturn final judgments, our judicial system could collapse

under the weight of perpetual re-attempts. A lack of certainty and resolution would prevail.

Therefore, the circumstances by which a party may overturn a prior final judgment are

narrow. With all evidence and inferences viewed in the best light in favor of Gentry, Larkin

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is entitled to judgment as a matter of law.4 We affirm the judgment of the Trial Court in all

respects.

4

Larkin would have prevailed had we applied the standard of review for motions to dismiss, as well.

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Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Tia Gentry, and her surety, if any.

_________________________________

D. MICHAEL SWINEY, JUDGE

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