# Kathy Austin v. Jacob Wilds, Jr.

> Court of Appeals of Tennessee · April 22, 2014

URL: https://www.frixlaw.com/law-library/cases/2670933

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** April 22, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge D. Michael Swiney
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 5, 2014 Session

KATHY AUSTIN, ET AL. v. JACOB WILDS, JR., ET AL.

Appeal from the Chancery Court for Greene County
No. 20100174 Jon Kerry Blackwood, Senior Judge

No. E2013-01310-COA-R3-CV - Filed April 22, 2014

Kathy Austin, Vickie Shipley, and Sherry Foshie (“Plaintiffs”) sued their brothers, Jacob
Wilds, Jr. and James Wilds (“Defendants”), seeking to have certain deeds from their mother
set aside due to alleged undue influence and/or duress. After a bench trial, the Chancery
Court for Greene County (“Trial Court”) entered its order rendering judgment in favor of
Defendants after finding and holding, inter alia, that Plaintiffs had failed to prove the
existence of a confidential relationship necessary to show that the subject deeds were
procured through undue influence. Plaintiffs appeal. We find and hold that the evidence
does not preponderate against the Trial Court’s findings, and we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery 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., C.J., and J OHN W. M CC LARTY, J., joined.

Thomas C. Jessee, Johnson City, Tennessee, for the appellants, Kathy Austin, Vickie Shipley,
and Sherry Foshie.

Ben W. Hooper, III, Newport, Tennessee, for the appellees, Jacob Wilds, Jr. and James
Wilds.
OPINION

Background

Plaintiffs and Defendants are adult siblings and the children of Dixie Wilds,
who died in late 2009. By virtue of the Last Will and Testament of Dixie Wilds, Plaintiffs
inherited an interest in a tract of land of approximately .85 acres1 in Greene County,
Tennessee2 , which included the house where Dixie Wilds had lived at the time of her death.
At some point in time after the death of Dixie Wilds, Plaintiffs discovered that there was an
issue regarding the water rights to the house they had inherited from Dixie Wilds. Plaintiffs
sued Defendants alleging that deeds executed by Dixie Wilds and Defendants on September
28, 2000 were procured through undue influence and/or duress and seeking to have these
deeds reformed as to the water rights. The case was tried without a jury in June of 2012.

Attorney D.R. Beeson, III testified at trial about his title examination of the
deeds involved in this case. Attorney Beeson testified that the real property at issue in this
case was originally one tract of land consisting of approximately 150 acres (“150 Acres”).
In 1949 Tom Hale and his wife deeded the 150 Acres to the Wilds brothers, Virgil, Jacob,
and Jerry, as tenants in common. Jacob Wilds was the husband of Dixie Wilds and the father
of Plaintiffs and Defendants. Dixie Wilds received no interest in the 150 Acres by virtue of
the 1949 deed. Jacob Wilds and Dixie Wilds lived in a house on the 150 Acres.

In 1962, Virgil Wilds deeded his one-third undivided interest in the 150 Acres
to Jacob Wilds and Dixie Wilds. In 1963 Jerry Wilds deeded his one-third undivided interest
in the 150 Acres to Jacob Wilds and Dixie Wilds. The 1962 and 1963 deeds created a
tenancy by the entireties in Jacob Wilds and Dixie Wilds in two-thirds interest in the 150
Acres. The one-third undivided interest held by Jacob Wilds by virtue of the 1949 deed from
Tom Hale and his wife continued to be held solely by Jacob Wilds.

1
The record reveals some discrepancy in the stated acreage of the tracts of real property involved in
this case. As is often the case, later surveys disagree with the amounts of acreage stated in deeds that appear
earlier in the relevant chain of title. There is no dispute in this case regarding the amount of acreage involved
in the real property at issue. As such, for ease of reference and to avoid confusion and maintain consistency
in the areas being discussed, we refer in this Opinion to the acreage using the approximations that appear in
earlier deeds within the chain of title introduced at trial.
2
As best as we can tell from the record on appeal, some of the real property owned by Jacob Wilds
and Dixie Wilds may have been located in Cocke County and some in Greene County. The exact location
of the real property is not material to the issues raised in this appeal.

-2-
In January of 1964 Jacob Wilds and Dixie Wilds created a life estate for
Winnie Wilds, the mother of Jacob Wilds, in .4 of an acre of the 150 Acres. Then, in 1975
Jacob Wilds and Dixie Wilds conveyed the 150 Acres to Defendants with three exceptions,
the .4 acre life estate for Winnie Wilds, a one acre tract, and a .6 acre tract. The one acre
tract and the .6 acre tract were treated as one tract, and Jacob Wilds and Dixie Wilds had
their house on the 1.6 acres. The 1975 deed also retained a life estate for Jacob Wilds and
Dixie Wilds in the 150 Acres less the exceptions. Upon the death of Jacob Wilds, the 1.6
acre tract passed to Dixie Wilds as the surviving tenant by the entireties. As for the .4 acre
tract, Dixie Wilds owned a two-thirds undivided interest as the surviving tenant by the
entireties, and the remaining one-third interest was shared by Dixie Wilds and her five
children, who are the Plaintiffs and Defendants.

The specific deeds which Plaintiffs allege were the product of undue influence
and/or duress were executed on September 28, 2000, after the death of Jacob Wilds. On that
day defendant Jacob Wilds, Jr.3 and Dixie Wilds conveyed to defendant James Wilds
approximately 88 acres, which included their interests in the 1.6 acres and the .4 acres.
Defendant James Wilds and Dixie Wilds also conveyed to defendant Jacob Wilds, Jr. a
portion of the 150 Acres in order for Dixie Wilds to relinquish her life estate created in the
1975 deed to Defendants. Also on September 28, 2000, defendant James Wilds conveyed
to Dixie Wilds .85 acres, which was a portion of the 1.6 acres. The September 28, 2000 deed
from James Wilds to Dixie Wilds contained a right to use and maintain a spring, pump house,
and existing water lines located on other property of James Wilds and stated that the grant
of water rights was personal and not to run with the land. Prior to execution of the
September 28, 2000 deeds, Dixie Wilds owned a life estate in the 150 Acres less the above
mentioned exceptions, owned 1.6 acres, and owned an interest in the .4 acres. Basically, on
September 28, 2000 Dixie Wilds conveyed all her interests in the property to Defendants and
then defendant James Wilds conveyed .85 acres back to Dixie Wilds.

Defendant James Wilds testified at trial that he is retired from the Greeneville
City School System. James Wilds testified about the day that the September 28, 2000 deeds
were executed. He stated that he received a call at the school and was asked to come to
Attorney Greer’s office to sign some deeds with regard to the property he and his brother
owned in common, which they were dividing. His brother and his mother were at Attorney
Greer’s office when he arrived. James Wilds was asked if his mother was competent when
they were in Attorney Greer’s office, and he stated: “Very competent.” He testified that he
had a good relationship with his mother at that time. James Wilds testified that he cut water
off to the property inherited by his sisters some time after his mother’s funeral.

3
Because the Defendants share the same last name, when we refer to them individually in this
Opinion we refer to them using both first and last name to avoid confusion.

-3-
Defendant Jacob Wilds, Jr. testified that he had no discussions with Attorney
Greer or with his mother about water to his mother’s home. He testified that he took his
mother to Attorney Greer’s office on September 28, 2000. Jacob Wilds, Jr. explained that
he was having coffee with his mother earlier that day and when he mentioned that he was
going to Attorney Greer’s office his mother asked if she could go with him. Jacob Wilds, Jr.
testified that at that time he had a good relationship with his mother.

Jacob Wilds, Jr., testified that he first became aware that Attorney Greer was
preparing a Last Will and Testament for his mother on September 28, 2000. He testified that
his mother was managing her own affairs and was capable of doing so at that time.

Plaintiff Kathy Austin testified that she is a homemaker and on the Greene
County Board of Education. Ms. Austin testified that during her mother’s lifetime there
never was a time during which there was no water to her mother’s property. Ms. Austin first
found out that there was an issue about the water when she spoke with Defendants a few days
after their mother had died.

Ms. Austin was asked what she did to assist her mother prior to 2000, and she
stated:

Well, I took her to town. We would go eat. You know, sometimes she would
go to doctors’ appointments by herself. Sometimes I would take her. We’d
stop by the bank, and she’d cash, you know, her checks or whatever. So just
general things like that. Then she could still drive.

Ms. Austin was asked if her claim of undue influence or duress in this case was
based on the fact that her brother drove their mother to Attorney Greer’s office on September
28, 2000 and the fact that her mother trusted her brother, and Ms. Austin agreed. She was
asked if her mother was capable of managing her own affairs at the time the September 28,
2000 deeds were made, and Ms. Austin stated: “She was competent to do daily affairs, yes.”
When asked if she had any knowledge of any threat or coercion imposed upon her mother
by her brother, Ms. Austin stated: “Not other than the paperwork.” Ms. Austin was asked
upon what she based her claim that her brother James had exercised undue influence over
their mother, and she stated: “She trusted him and paperwork.” Ms. Austin admitted that her
mother also trusted Ms. Austin and her sisters.

Ms. Austin testified that to her knowledge her mother never gave anyone a
power of attorney prior to September of 2000. Ms. Austin admitted that her mother also
executed her Last Will and Testament on September 28, 2000 and agreed that she was not
questioning the validity of her mother’s Last Will and Testament.

-4-
Ms. Austin admitted that public water is available to the property she and her
sisters inherited from their mother for a $1,300 tap fee, but stated that they have not hooked
into the public water. She testified that when they stay at her late mother’s house they carry
jugs of water.

Plaintiff Sherry Foshie testified that she is a teacher retired from the Greene
County School System. Ms. Foshie was asked what the relationship between her mother and
her brothers and sisters was like between the time of her father’s death in July of 2000 and
September 28, 2000, and she stated: “Just a normal family. . . . We got together at Christmas
time. We got together on Mother’s Day, Father’s Day, ran in to each other when we were
visiting our parents.”

Plaintiff Vickie Shipley testified that she is employed as Judge Wilson’s
secretary. Ms. Shipley testified that she took her mother to Attorney Greer’s office in
September of 2000 so her mother could give Attorney Greer her handwritten will to be typed
up. Ms. Shipley stayed in the room with her mother while her mother spoke to Attorney
Greer that day.

Ms. Shipley was asked if she had any knowledge of threats or coercion
imposed on her mother with regard to the preparation and execution of the September 28,
2000 deeds, and she stated: “It’s on paper. There’s all kinds of coercion and undue influence
and duress.” Ms. Shipley admitted, not surprisingly, that she is not challenging the validity
of her mother’s Last Will and Testament, which also was executed on September 28, 2000.
Ms. Shipley agreed that she believes that her mother made and executed the Last Will and
Testament of her own free will.

Joseph W. Austin, Jr., M.D., plaintiff Kathy Austin’s husband, testified that he
and his wife have been married for 32 years. Dr. Austin was asked if Dixie Wilds was able
to manage her own affairs when her husband died in 2000, and he stated: “I think she was
competent. She was under a lot of stress, but competent, I think.”

The Honorable Ronnie Greer testified by deposition introduced as an exhibit
at trial.4 Attorney Greer produced copies of files he created when he represented various
members of the Wilds family. These files included deeds he prepared and the Last Will and
Testament of Dixie Wilds, which he also prepared.

4
At the time of the execution of the September 28, 2000 deeds, Judge Greer was a practicing attorney
in Greeneville. He subsequently was appointed to his position as a Federal District Judge. We refer in this
Opinion to Judge Greer as Attorney Greer simply to reflect the role he played as an attorney representing
parties involved in the transactions at issue in this case.

-5-
Attorney Greer prepared a Warranty Deed dated September 28, 2000 in which
defendant Jacob Wilds, Jr. and Dixie Wilds granted real property to defendant James Wilds.
Attorney Greer also prepared a Warranty Deed dated September 28, 2000 from defendant
James Wilds and Dixie Wilds to defendant Jacob Wilds, Jr. Attorney Greer testified that it
was his understanding that he was preparing the deeds “to divide this property that’s
described in this 1975 Deed, which had been transferred jointly to James and Jacob Wilds.”

Attorney Greer also prepared a deed dated September 28, 2000 from defendant
James Wilds to Dixie Wilds. He testified that this deed from defendant James Wilds to Dixie
Wilds contains a reference to water rights, which states:

There is also conveyed herewith to grantee the right to use and maintain the
spring, pump house, and existing water lines located on the property of grantor
identified as Tract Number 3 as shown on subdivision plat prepared by
Professional Surveying Service, Inc. dated April 28, 1999, Parenthetical
Drawing Number 99115SUB.DWG. This grant is personal to grantee and
shall not run with the land.

Attorney Greer was asked who requested the language in the deed regarding water rights and
he stated:

My recollection on this is that the person who first discussed this with me was
James Wilds because I remember this. I don’t have a clear memory of all of
these events, but I do remember the subject of these water lines because I was
very concerned that the effect of these deeds would be to leave this tract of
property without any, without any water. And I expressed that to, I’m almost
certain it was James Wilds.

Attorney Greer further stated:

My concern was with there being water that would stay with that tract of land,
and I remember comparing that to a situation where you land locked a piece
of land and basically destroyed the value of it because there was no, no water
on it. And I think I may have mentioned this when you and I have talked
before. I have some recollection of somebody telling me that there was
another source of water, but I don’t know exactly who told me that.

Attorney Greer was asked if he spoke to Dixie Wilds about the situation, and he testified that
since Dixie Wilds did not sign this deed, he probably did not discuss the water rights with
her.

-6-
Attorney Greer was asked if Dixie Wilds was lucid and “able to understand
what it was you were doing for her” when he met with her, and he testified that she was. He
pointed out that he prepared Dixie Wilds’s Last Will and Testament at the same time and
stated that he “would not have allowed her to sign that will if I had some question about her
competency.” Dixie Wilds did not appear to be under any undue influence or duress when
she was in Attorney Greer’s office. Attorney Greer stated: “She was not upset. She didn’t
exhibit any unusual behavior. She clearly relied on her sons to a large extent. But, no, there
was nothing unusual about that.”

Attorney Greer testified that in his files he also had a copy of the “same Deed
that I prepared for James Wilds except that it’s notarized by somebody named Jill Hartman,
not by me. The one I had in my file was notarized by me.” Attorney Greer testified that
other than the notarization and the recording information, which does not appear on the copy
in Attorney Greer’s file, the copy of the deed notarized by Jill Hartman “appears to be the
same,” as the copy of the deed in his file, which he prepared.

After trial the Trial Court entered its order on June 28, 2012 rendering
judgment in favor of Defendants after finding and holding, inter alia:

During their lifetime, Jacob and Dixie Wilds acquired a tract of land
which this Court will refer to as the farm. For purposes of these findings, the
farm was divided into tracts 1, 2, and 3. Tract 3 is separated from the other
two tracts by the Houston Valley Road. Originally Jacob and Dixie Wilds
lived on tract 3. Located on this tract was a spring and well that provided
water for the home. At some later date, Jacob and Dixie Wilds built a white
two story home on the other side of Houston Valley Road. This home became
the family home place. . . .

In 1975, Jacob and Dixie Wilds executed deeds wherein they conveyed
all the property of the farm to their sons as tenants in common. The 1975 deed
excepted approximately 1.6 acres and also reserved a life estate in the farm for
Jacob and Dixie Wilds. . . .

At all times after Dixie and Jacob moved to the home place, water was
supplied from the well and spring located across the Houston Valley Road. .
. . While the sons continued the farming operation, the Plaintiffs married and
established families and homes in Greene County.

Dixie Wilds had prepared a handwritten document purporting to dispose
of her property at death. In September 2000, Ms. Shipley carried her mother

-7-
to the law office of Mr. Ronnie Greer, an attorney in Greene County. Mr.
Greer was to prepare a will for Dixie Wilds using the handwritten document
that she had previously prepared. While in the office, Ms. Shipley heard Mr.
Greer mention that he was also “preparing deeds for the boys.” The
Defendants had decided that they would divide the farm into various tracts
between themselves. Consequently, they made arrangements for a survey of
the property to accomplish this division. Instead of sharing the entire tract as
tenants in common, these tracts would establish fee ownership of the farm to
the brothers pursuant to the survey. As part of the division, James Wilds was
to receive that portion of the property that contained the well and spring.

On September 28, the defendants came to the office of Mr. Greer with
their mother. Ms. Wilds executed the will that Mr. Greer had prepared for her.
Article 11 of the will bequeathed to the Plaintiffs the two story white home
place. . . . Also, on September 28, various deeds were executed to accomplish
the division of the farm between the brothers. James Wilds and Dixie Wilds
executed a deed to transfer to Jacob Wilds, Jr. tracts 1 and 2. . . . Jacob Wilds,
Jr. and Dixie Wilds then executed a deed to James Wilds for the tract of land
known as tract 3 which included the property whereon the spring and well
were located. After that deed was executed, James Wilds executed a deed to
Dixie Wilds conveying approximately 0.85 acres in fee to the home place.
Included in this deed was the right of Dixie Wilds to use and maintain the
spring and well. However, the grant was personal and did not run with the
land. The end result of these deeds was to (1) divest Dixie Wilds of any life
estate that she had in the farm; (2) establish ownership in fee between the
brothers; (3) divest Dixie Wilds of any interest she might have of the garden
plot; and (4) restrict the use of the spring and well to the lifetime of Dixie
Wilds for the home place. The Plaintiffs were not aware of these conveyances.

***

Dixie Wilds died in 2009. . . . Shortly after their mother’s death, the
Plaintiffs were advised by the Defendants that the water to the home place
would no longer be available. In order to use the home, the Plaintiffs testified
that they had to bring bottled water to the home and also bring buckets of
water in order to shower and flush the toilets. Consequently, the Plaintiffs
filed this action to set aside these conveyances on the basis of undue influence.

There is no issue in this matter as to the competency of Ms. Wilds to
execute the deeds. Mr. Greer in his deposition testified that as far as he could

-8-
recall, Ms. Wilds was lucid and able to understand what she was doing. He
would not have allowed her to sign the will if he had some question about her
competency. The issue of the water rights, however, were a concern for Mr.
Greer. He testified that the effect of the deeds would be to leave the home
place tract without any water. He testified that he expressed this concern to
James Wilds. However, Mr. Greer testified that Ms. Wilds did not exhibit any
appearance of being under any influence.

***

There are indeed some very suspicious circumstances surrounding the
execution of the deeds. It is manifest by virtue of her last will and testament
that Ms. Dixie Wilds desired to leave the home place to the Plaintiffs. The
abandonment of water rights would render the property virtually useless and
has no logical underpinnings. It is also uncontradicted that no consideration
for the deeds was exchanged contemporaneously with their executions. The
consideration, if any, was paid years before in the form of a loan or loans for
which there is no documentary evidence. . . . The sisters were unaware of
these deeds until after their mother’s death. However, it was clearly Jacob and
Dixie Wilds[’s] intention that the farm be allocated to the Defendants as
evidenced by the 1975 deed to them which retained only a life estate for
themselves.

There is no evidence to suggest that the financial affairs of Ms. Dixie
Wilds was [sic] exclusively controlled by the Defendants. It is further evident
that from the execution of these deeds until her death, the Plaintiffs continued
to visit with the mother and were in no way hindered from any interaction with
her. There is no evidence to suggest that Ms. Wilds was experiencing any
mental or physical decline. To the contrary, Mr. Greer opined that she was
competent. There is no indication that Ms. Wilds indicated to the Plaintiffs
that she had executed documents that she did not intend to execute nor
understand. More important, there is nothing in the record to indicate that Ms.
Wilds was the weaker personality that her sons were able to dominate.

It is clear that the action of the Defendants to suddenly inform the
sisters that water would not be available was malicious, vindictive, petty and
spiteful. This behavior is all too common in families after their parents are
deceased. For whatever reason, be it jealousy, greed or plain meanness, the
Defendants decided to cut off the water rights to the home place. However,
this Court concludes that the Plaintiffs have not established by a

-9-
preponderance of the evidence that a confidential relationship existed between
the Defendants and Ms. Wilds and that as a result of that relationship these
deeds were procured through undue influence.

Plaintiffs filed a motion for additional findings of fact and to alter or amend.
After a hearing the Trial Court allowed the evidence to be supplemented with the affidavit
of Michael Grigsby, which states that Mr. Grigsby “prepared the survey dated April 21, 2000
on the property of Jacob and Dixie Wilds and the boundary lines between their property and
James Wilds’s property,” and that Mr. Grigsby recalled “being contacted by James Wilds to
obtain the survey . . .,” and further recalled “James Wilds being present and designating the
boundary line as indicated on the survey with five new set points.” The Trial Court declined
to make any additional findings and denied Plaintiffs’ motion to alter or amend. Plaintiffs
appeal to this Court.

Discussion

Although not stated exactly as such, Plaintiffs raise three issues on appeal: 1)
whether the Trial Court erred in refusing to consider evidence given in the testimony of
Attorney Greer and Defendants; 2) whether the Trial Court erred in denying Plaintiffs’
motion to make additional findings or to alter or amend; and 3) whether the Trial Court erred
in failing to determine the amount of Plaintiffs’ loss of use of the property inherited from
their mother.

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 Trial Court erred in refusing to consider evidence
given in the testimony of Attorney Greer and Defendants. In their brief on appeal Plaintiffs
argue that the Trial Court erred when it refused to consider relevant evidence offered by
Attorney Greer and Defendants. Plaintiffs are mistaken. The evidence discussed by
Plaintiffs in their brief on appeal was considered by the Trial Court as evidenced by the Trial
Court’s detailed findings in its June 28, 2012 order. Plaintiffs, in their brief on appeal, point
to no evidence which was ignored. Instead, what Plaintiffs want this Court to do is to review
this same evidence and reach a different conclusion. This we decline to do. Plaintiffs argue
that the Trial Court should have reviewed the evidence and “should have found a confidential
relationship and undue influence.” The real issue here is whether the Trial Court erred in

-10-
finding that Plaintiffs failed to prove a confidential relationship necessary to support a
finding of undue influence.

In Estate of Price this Court explained:

Courts apply the doctrine of undue influence “when one party, such as
a grantee, is in a position to exercise undue influence over the mind and the
will of another, such as a grantor, due to the existence of a confidential
relationship.” Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983).
In Iacometti v. Frassinelli, we discussed the nature of a confidential
relationship as follows:

It 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, such as nurse and invalid, trusted business adviser and
friend etc. Bayliss v. Williams (1869) 6 Cold. 440, 46 Tenn.
440; Miller v. Proctor, [24 Tenn. App. 439, 145 S.W.2d 807],
supra. Proof of the existence of the normal family relationship
between a parent and adult child, standing alone, does not give
rise to an inference or presumption that either one exercises any
dominion and control over the other.

Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973). A trial
court’s conclusions regarding whether a confidential relationship existed or a
person exercised undue influence over another are questions of fact. Gibson
v. Gibson, No. W2004-00005-COA-R3-CV, 2004 WL 2464271, at *3 (Tenn.
Ct. App. W.S., Nov. 2, 2004).

In Tennessee, a presumption of undue influence arises when there is a
confidential relationship followed by a transaction in which the dominant party
receives a benefit from the other party. Matlock v. Simpson, 902 S.W.2d 384,
386 (Tenn. 1995). The burden of proof for these elements rests with the party
who alleges the confidential relationship. Smith v. Smith, 102 S.W.3d 648, 653
(Tenn. Ct. App. 2002). However, once that party establishes a presumption of
undue influence, the burden of proof shifts to the dominant party to rebut the
presumption by clear and convincing evidence of the fairness of the
transaction. Id.

-11-
In re: Estate of Price, 273 S.W.3d 113, 125 (Tenn. Ct. App. 2008).

In the case now before us, the Trial Court specifically found:

There is no evidence to suggest that the financial affairs of Ms. Dixie
Wilds was [sic] exclusively controlled by the Defendants. It is further evident
that from the execution of these deeds until her death, the Plaintiffs continued
to visit with the mother and were in no way hindered from any interaction with
her. There is no evidence to suggest that Ms. Wilds was experiencing any
mental or physical decline. To the contrary, Mr. Greer opined that she was
competent. There is no indication that Ms. Wilds indicated to the Plaintiffs
that she had executed documents that she did not intend to execute nor
understand. More important, there is nothing in the record to indicate that Ms.
Wilds was the weaker personality that her sons were able to dominate.

***

However, this Court concludes that the Plaintiffs have not established by a
preponderance of the evidence that a confidential relationship existed between
the Defendants and Ms. Wilds and that as a result of that relationship these
deeds were procured through undue influence.

A careful and thorough review of the record on appeal reveals that the evidence
does not preponderate against the Trial Court’s finding that Plaintiffs failed to prove that a
confidential relationship existed between Dixie Wilds and either of the defendants. The
evidence, in fact, shows that Dixie Wilds was competent to handle her own affairs and that
she did so. The evidence supports a finding of a normal parent and adult child relationship
between Dixie Wilds and each of the defendants, but such a relationship does not give rise
to a presumption of dominion and control.

In their brief on appeal Plaintiffs point out that Dixie Wilds was “left with no
property,” at one point during the pendency of the transaction that occurred on September
28, 2000 and, therefore, “[b]ecause James Wilds was under no obligation to transfer the
property back to Ms. Wilds, James Wilds was able to exercise dominion and control over Ms.
Wilds taking some of her land and modifying her access to water.” Plaintiffs assert that this
proves a confidential relationship wherein James Wilds was able to exercise dominion and
control over Dixie Wilds. We, as did the Trial Court, disagree.

The fact that Dixie Wilds may have been in a position wherein she very briefly
did not own any of the land during the pendency of the transaction which occurred on

-12-
September 28, 2000 does not show that Dixie Wilds entered into the transaction as a result
of undue influence or duress. Rather, the facts and circumstances in this case show that all
three of the September 28, 2000 deeds were prepared ahead of time by Attorney Greer, and
that all three were executed on the same day, at the same time, at the same place. The
evidence shows that Dixie Wilds and both Defendants were at Attorney Greer’s office
together when the deeds were executed. Therefore, the fragile position that Plaintiffs seek
to have this Court find Dixie Wilds to have been in, occurred very briefly in the midst of the
transaction and not before the transaction, and simply does not show that Dixie Wilds and
Defendants had a confidential relationship that allowed Defendants to exercise undue
influence or duress over Dixie Wilds.

We understand, as did the Trial Court, why Plaintiffs are unhappy with
Defendants. But the reality is that Plaintiffs, as found by the Trial Court, failed to carry their
burden to show that Dixie Wilds had a confidential relationship with either of the defendants
necessary to give rise to a presumption of undue influence.

We next consider whether the Trial Court erred in denying Plaintiffs’ motion
to make additional findings or to alter or amend. Plaintiffs argue in their brief on appeal that
the Trial Court erred in refusing to make additional findings. As discussed above, however,
the Trial Court did not ignore the evidence which Plaintiffs assert support additional
findings, but only declined the request to make additional findings to its already detailed and
specific findings. This argument is without merit.

As for Plaintiffs’ motion to alter or amend, we review a trial court’s ruling on
a Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment using the abuse of discretion
standard. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Linkous v. Lane, 276 S.W.3d
917, 924 (Tenn. Ct. App. 2008). As noted by our Supreme Court:

An abuse of discretion is found only when a trial court has “‘applied an
incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.’” State v. Stevens,
78 S.W.3d 817, 832 (Tenn. 2002) (quoting State v. Shuck, 953 S.W.2d 662,
669 (Tenn. 1997)). The abuse of discretion standard does not permit an
appellate court to merely substitute its judgment for that of the trial court. See
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003). See also Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (“Under the abuse of discretion standard, a trial court’s ruling

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‘will be upheld so long as reasonable minds can disagree as to propriety of the decision
made.’”)(quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)).5

Plaintiffs’ motion to alter or amend is based upon Plaintiffs’ assertion that if
the Trial Court made the additional findings as requested by Plaintiffs, then the Trial Court
should grant Plaintiffs’ motion and find that the September 28, 2000 deeds were the product
of undue influence because of a confidential relationship. As discussed fully above,
however, the Trial Court found that Plaintiffs had failed to prove a confidential relationship
between Dixie Wilds and either of the defendants. The evidence in the record on appeal does
not preponderate against this finding. Furthermore, as discussed more fully above, the
evidence in the record on appeal preponderates against the additional findings requested by
Plaintiffs, and we have found no error in the Trial Court’s declining to make additional
findings. As such we find no abuse of discretion in the Trial Court’s denial of Plaintiffs’
motion to alter or amend.

Our resolution of Plaintiffs’ first two issues renders moot Plaintiffs’ issue
regarding whether the Trial Court erred in failing to determine the amount of Plaintiffs’ loss
of use of the property inherited from their mother.

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
appellants, Kathy Austin, Vickie Shipley, and Sherry Foshie, and their surety.

_________________________________
D. MICHAEL SWINEY, JUDGE

5
We likewise review a trial court’s ruling on a Tenn. R. Civ. P. 60.02 motion for relief from a final
judgment using the abuse of discretion standard. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003). The
abuse of discretion standard also is applied under Rule 54.02. See Harris v. Chern 33 S.W.3d 741, 746
(Tenn. 2000) (“A trial court’s ruling on a motion to revise pursuant to Rule 54.02 will be overturned only
when the trial court has abused its discretion. See Donnelly v. Walter, 959 S.W.2d 166, 168 (Tenn. Ct. App.
1997).”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2670933. Public record. Not legal advice.