The opinion
IN THE COURT OF APPEALS
AT KNOXVILLE
FILED
February 3, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
BARBARA BRANUM ) HAMILTON COUNTY
) E1999-00865-COA-R3-CV
Plaintiff-Appellant )
)
)
v. ) HON. W. FRANK BROWN, III,
) CHANCELLOR
)
CORRINE W. AKINS and )
MELVIN L. AKINS )
)
Defendant-Appellee ) AFFIRMED AND REMANDED
JOHN C. CAVETT, JR., OF CHATTANOOGA FOR APPELLANT
ROBERT G. NORRED OF CHATTANOOGA FOR APPELLEES
O P I N I O N
Goddard, P.J.
This is a suit wherein the Plaintiff Barbara Brunum,
inter alia, seeks to set aside a conveyance by her mother, the
Defendant Corrine W. Akins--who held certain real property in
trust for her--to her brother, Defendant Melvin L. Akins. The
basis of the suit is that her mother violated her fiduciary duty
by conveying the property to her brother and that he was guilty
of fraud and conspiracy in accepting the transfer. The only
consideration for the transfer was the assumption and payment of
a prior secured indebtedness against the property in the amount
of $29,392.25. The Trial Court found in favor of the daughter
against the mother, awarded damages in the amount of $34,607.75,
plus pre-judgment interest at the rate of 10 percent per annum,
beginning April 28, 1998, the date our opinion in a prior appeal
of this case was filed. The Chancellor dismissed the claim as to
the brother. The daughter appeals insisting the Trial Court was
in error in not setting aside the transfer. We are of the
opinion that the Trial Judge acted properly and affirm the
judgment entered.
The facts necessary for disposition of this case are
accurately set out in the earlier appeal of this case, the
opinion for which is found in 978 S.W.2d 554 (Tenn. Ct. App.
1998). (See Appendix.)
We believe it significant that one of the issues raised
in the earlier appeal is whether the deed should be set aside.
2
Specifically, the issue raised according to our first opinion is
as follows:
2. Should the transfer of trust property be set aside?
This issue relates to the sole allegation against the
brother, i.e., that he “had fraudulently obtained title to the
property.” 978 S.W.2d at 556. The brother was exonerated in the
earlier case. This can be seen from the following in our
opinion:
From a review of Branum’s brief, it appears that
she does not seriously challenge the trial court’s
dismissal of her claim of fraud or conspiracy on the
part of Larry Akins. In any event, we find, as did the
trial court, that the evidence does not support such a
claim.
Id. at 558.
It is clear from the foregoing that this Court found in
the earlier appeal that the brother was guilty of no wrongdoing
and, hence, the conveyance insofar as he was concerned was a
valid one. We are persuaded that our earlier opinion and
judgment became the law of the case as to that issue. Ladd v.
Honda Motor Co., Ltd., 939 S.W.2d 83 (Tenn. Ct. App. 1996).
3
The only issue before the Trial Court on the remand was
the “appropriate judgment . . . for Mrs. Akins’ breach.” Branum,
978 S.W.2d 558. The issue of fraud against the brother was not
an open issue on remand.
For the foregoing reasons the judgment of the Trial
Court is affirmed and the cause remanded for such further
proceedings, if any, as may be necessary and collection of costs
below. Costs of appeal are adjudged against Barbara Branum and
her surety.
___________________________
Houston M. Goddard, P.J.
CONCUR:
______________________________
Herschel P. Franks, J.
______________________________
D. Michael Swiney, J.
4
APPENDIX
In 1961, Mrs. Akins and her husband executed a deed
conveying the subject property, consisting of a lot and duplex,
to Mrs. Akins as trustee for Branum. The trust gives the trustee
the power to sell, convey, transfer or encumber the subject
property. From 1961 to 1993, the duplex was rented to various
tenants, and all income generated from the property was deposited
in a joint bank account held in the names of Branum and Mrs.
Akins. From time to time, Branum requested and was given various
amounts of money by Mrs. Akins from this joint account.
In 1993, Mrs. Akins agreed to mortgage the trust property in
order to enable Branum to borrow $30,000 from AmSouth Bank. On
prior occasions, Branum had requested that she be allowed to use
the property as collateral, but Mrs. Akins had refused. On this
occasion, however, Branum stated that she needed the money to pay
off her children's school loans, and Mrs. Akins relented. While
Mrs. Akins was required to sign the deed of trust, there is
nothing in the record to indicate that she was required to sign
the promissory note to AmSouth.
In 1995, Branum and her husband began experiencing financial
difficulties. She fell behind in her payments on the AmSouth
loan. According to Steve Taylor, an AmSouth vice president who
testified at trial, the loan had approximately 147 days of
interest due as of late July, 1995. Taylor also testified that by
the time a loan becomes 90 days past due, AmSouth generally
starts its consideration of foreclosure. The record also reflects
that Mrs. Akins had been monitoring the status of the loan, but
that Branum had cut off her mother's access to such information
in June, 1995.
On approximately July 25, 1995, Mrs. Akins conveyed the
trust property to Branum's brother, Larry Akins. At that time,
AmSouth had not yet commenced foreclosure proceedings on the
property; nevertheless, Mrs. Akins testified as follows:
APPENDIX
Page 2
I was about to lose the property. I couldn't get a
loan. I was desperate. I had to do something, and
I had to do it in a hurry.
Mrs. Akins first offered to sell the property to
her other daughter, Jeannette Walker, but she was not
interested. Mrs. Akins then offered it to her son.
According to a real estate appraiser who testified at
trial, the property was worth $64,000 as of July, 1995.
Larry Akins testified that he was aware of the
property's value; however, he stated that he only
reluctantly agreed to purchase it from his mother. Mrs.
Akins agreed to transfer the property to her son in
return for his commitment to pay off his sister's loan.
Branum was unaware of the transfer.
To fund his purchase of the property, Larry Akins
borrowed some $41,600 from a bank. He gave that bank a
deed of trust on the property. A portion of the
proceeds from the new loan were paid to AmSouth to
satisfy Branum's loan, which at that time amounted to
$29,392.25. Other than being relieved of this
obligation, Branum received nothing from the transfer;
nor did she receive any further income from the
property.
In September, 1995, Branum learned for the first
time of the conveyance of the trust property. Shortly
thereafter, she filed this action against her mother
and brother, alleging that Mrs. Akins had breached her
duty as trustee and that Larry Akins had fraudulently
obtained title to the property. In her complaint,
Branum requested, among other things, that she be
awarded a judgment for all proceeds generated by the
trust property from 1961 to the present, plus interest;
that the conveyance be set aside; and that she be
awarded punitive damages of $150,000 against the
defendants.