The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 27, 2014
JAMES RAY MYNATT v. CHARLENE MYNATT LEMARR, ET AL.
Appeal from the Chancery Court for Campbell County
No. 05-002 Andrew R. Tillman, Chancellor
No. E2013-02347-COA-R3-CV-FILED-SEPTEMBER 9, 2014
This appeal involves property that the plaintiff alleged was transferred by a deed with a
forged signature. The plaintiff filed an action to have the deed, filed over a decade earlier,
set aside. The defendants contended that the signature on the deed was an authorized assisted
signature, and was recorded and published within a few days after it was made. The
defendants further asserted that they had no obligation to announce to anyone they had
obtained the property. The trial court found the plaintiff failed to carry the burden of proof
necessary to void the deed. The plaintiff appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.
David H. Dunaway, LaFollette, Tennessee, for the appellant, James Ray Mynatt.
Terry M. Basista, Jacksboro, Tennessee, for the appellees, Charlene Mynatt Lemarr, Bobby
Lemarr, Myron Ford, Patsy Ford, and Melissa Mynatt Hardy.
OPINION
I. BACKGROUND
In 1958, Thomas C. Mynatt (“Father”) received title to a 25-acre farm in Campbell
County, Tennessee. Father had three children with Beatrice Hatfield: Thomas F. Mynatt,
Linda Mynatt Spencer,1 and James Ray Mynatt (“Son”). Son is the plaintiff in this action.
Father later married Anna Mae Mynatt. Three children were borne of that union: Charlene
Mynatt LeMarr (“Daughter”), Patsy Mynatt Ford, and Melissa Mynatt Hardy. The farm was
titled in Father’s name individually. He never placed the name of Beatrice or Anna Mae onto
the deed. Father died intestate on February 10, 1995.
With the exception of a military stint in Vietnam, Son lived on the farm continuously
from his birth until 2002. Beginning at age 9, Son worked the farm with Father. During his
military service, Son sent Father a check each month to assist with paying the farm’s
expenses. After his return to the United States, Son worked the farm with Father for the next
24 years. Son raised his own child, Jimmy, in a mobile home located on the property.
Daughter lived in the farmhouse with her parents and younger sisters until her 1984
marriage to Bobby LeMarr. The LeMarrs then purchased a mobile home and placed it on the
farm. They remained in the mobile home until Father’s death in 1995, at which time they
moved into the farmhouse.
When Father’s health started failing in the late 1980s, he turned over management of
the farm to Son. According to Son, Father “couldn’t hardly walk. He had to drag his feet
to go to the bathroom or something. He couldn’t pick his feet up and set them down. He had
to scoot them.” Son further noted that Father’s “breathing was bad. He was on oxygen. And
his back was bad. And he had cataracts on his eyes.” Son testified regarding the work,
development, repairs, and maintenance he performed on the farm and its structures from the
time Father quit farming until 2002:
I hired a dozer to come in and clean the farm up. We was building a barn, I
think maybe some time in ‘90 to ‘92. It took us . . . when we would work a
job, then we come in and work evenings on the barn and weekends. My son
and me built it ourselves. It took us a couple of years to get it put up there.
Following Father’s death in 1995, Son’s activities of operating, maintaining and controlling
the farm without contribution from other family members continued for the next seven years
as they had always been. He rebuilt a barn in ‘98 or ‘99. He placed board and batten exterior
siding on the house in 1996. He jacked up the house, poured a concrete footer, and placed
a block foundation underneath the farmhouse. He continued to grow tobacco and claimed
to pay the property taxes on the farm from the tobacco proceeds.
1
Thomas F. and Linda signed a quit claim deed transferring any interest they had in the property to
their brother, James.
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Daughter testified that Father had emphysema and his hands shook, but he could walk.
She asserted that Father was never on a walker or a cane. She further noted that Father had
nothing wrong with his mind. Daughter admitted receiving cash from Son for taxes, but
asserted that he was only paying for the assessment for his mobile home. Daughter
confirmed that Son built the barn and that she did not invest in it. Daughter also
acknowledged that Son ran cattle on the farm and put a new roof on and a foundation under
the farmhouse in which the LeMarrs were living.
As a result of conversations with Father, Son states that he believed each of the six
children would receive a portion of the farm following Father’s death. Son testified:
Q: Did you anticipate at the time of your dad’s death you would have an
ownership interest in the farm?
A: Yes, Sir, he gave me a portion of the farm.
Q: Did he ever give you a deed?
A: No, Sir.
Q: Did you understand that you would own that property, along with your
other siblings?
A: Every child was to [be an] heir.
***
A: ... I knew that Charlene was to get the house, after Anna moved away,
or at her death. . . . She was to receive the house.
Q: Why were you doing these improvements to that house if you didn’t
want the house, and you knew that the house was to be hers when the
family divided up the farm?
A: My father told me before he died how he wanted the house to - I mean,
the house was to go to her, the land was to go to me, and make room for
my brothers and sisters, if they ever wanted to come back, to have a
place to build them a house.
Accordingly, Son contends he was unaware that a deed bearing the name and
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purported signature of Father (along with the signature of Anna Mae, who had no interest)
had been signed on December 14, 1991, transferring the entire 25-acre farm to the LeMarrs.
The deed was recorded on January 23, 1992. Son asserts he did not learn of the deed until
Daughter evicted him from the farm ten years later in 2002, seven years after Father’s death.
Son claims the LeMarrs remained silent over the years and did not divulge to him that
a deed had been recorded transferring all of the farm to them. According to Daughter, Father
gave her the property “[b]ecause I was the only one always there and took care of them, did
what they needed me to do.” Mr. LeMarr confirmed that he did not discuss the deed with
Son.2
Upon moving from the farm, Son went to the courthouse and located the deed at issue.
Upon examining it, Son concluded it did not contain the authentic signature of Father:
Q: When you got this deed from the courthouse, did you look at the
signature line on it?
A: Oh yeah.
Q: Was it your father’s handwriting?
A: No, I don’t think so. No, Sir.
The only witnesses to the execution of the 1991 deed still living are the LeMarrs.
They maintain that they were in the law office of David Rogers for the signing of the deed
on December 14, 1991. Daughter testified that the signature of Father on the 1991 deed is
an assisted signature. In fact, she acknowledged that Father inquired of the attorney if his
wife could sign his name for him and Mr. Rogers informed him that Anna Mae could only
assist him. Daughter recalled the events as follows:
Q: So what, if anything, was done?
A: She assisted him to sign his name.
Q: And how did she assist him in signing?
A: She had her hand over the top of his hand to help him sign his name.
2
In his deposition, Mr. Bobby LeMarr claimed Father related to him that he had told Son.
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***
Q: What did you observe done in the signing of that name?
A: She put her hand on top of his hand and helped him sign his name with
her assistance.
Q: ... Whose hand held the pen?
A: My dad.
Mr. LeMarr also observed the execution of the deed:
Q: She signed Thomas Mynatt’s name?
A: She helped him sign his name.
Q: Were you watching that?
A: Yeah.
Q: How much of it was he able to do on his own?
A: He started to sign it and his hand went to shaking and he told the
attorney that his hand was shaking too bad, that he couldn’t sign it, and
he asked if Anna Mae could sign it for him. He told Tommy no, that
she could help him sign it, but she couldn’t sign it for him. She held his
hand while he signed it.
Q: So do I understand your testimony is the same as your wife, that you sit
there and you observe this and you’re telling the Court under oath this
signature of Thomas Mynatt that we see is one person putting their
hand on another guiding their hand, that this is an assisted writing.
That that complete writing is done by the hands of both Thomas and
Anna’s, is that your testimony?
A: No, this part right here, this squiggly part, that’s where he started and
he told the attorney that he couldn’t hold his hand steady enough to
write and she helped him to sign it –
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***
Q: I want to be very clear on this. You’re telling the Court under oath that
you observed, when this signature of Thomas Mynatt is put on this line,
that it’s done by the joint hands of both Thomas Mynatt and Anna
Mynatt guiding him, that two hands wrote this name, that’s what you’re
telling us?
A: Yeah, she assisted him in writing his name.
The 1991 deed contains the following notary acknowledgment:
“Personally appeared before me David B. Rogers, a Notary Public for
Campbell County, Tennessee, Thomas C. Mynatt and wife, Anna Mae Mynatt,
with whom I am personally acquainted, (or proved to me on the basis of
satisfactory evidence), and who acknowledge that they executed the within
instrument for the purposes therein contained.”
On January 5, 2005, Son filed a petition for declaratory judgment and partition of real
property against his sisters, Daughter, Patsy, and Melissa, and their spouses, as well as Anna
Mae.3 In his petition, Son requested the trial court find that the 1991 deed, purportedly
signed by Father, transferring the real estate to the LeMarrs, did not contain the genuine
signature of Father, and the deed should be declared void. He claimed the property at issue
is owned by all six children of Father, as tenants in common, and should be subjected to a
sale by partition. Son filed an amended petition for declaratory judgment on July 9, 2012.
Son employed a noted forensic documents examiner, Thomas Vastrick,4 to examine
the 1991 deed as well as writing exemplars of Father5 and Anna Mae. Mr. Vastrick was of
the opinion that the 1991 deed did not contain the authentic signature of Father. He
3
Anna Mae died on March 18, 2005, shortly after the litigation was filed.
4
Mr. Vastrick has a B.S. degree in Forensic Science and participated in a two year forensic
documents residency program with the U.S. Postal Inspection Service Crime Laboratory in Washington, D.C.
He has been board certified by the American Board of Forensic Documents Examiners since 1982 and served
on its Board of Directors for eight years. He served as a Forensic Document Examiner for the U.S. Postal
Inspection Service and has been in private practice for 35 years. As a Forensic Document Examiner,
Vastrick has published one book, served as a contributing author on two textbooks, authored 30 research
papers and testified as a Forensic Document Expert in 300+ cases.
5
Father had no formal education and could not read or write, except for his name.
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explained his opinion as follows:
Q: Now, will you explain to us how you reached your opinion that the
signature that appears . . . is not the authentic signature of Thomas
Mynatt[?]
A: My examination involved the comparison of the relative skill level of the
writer and the letter designs that were involved. It was my determination that
the skill level that was shown in the known specimens that I had was at a lower
skill level than that of the questioned signatures. That is a tell-tale sign of
non-genuineness because the person cannot write better than they are normally
capable of. In addition to that, I found distinct characteristic differences such
as the design of the letter T, the design of the letter Y, and the position and
design of the T crossings, just as a couple of examples.
Mr. Vastrick concluded that the signature of Father was authored by the hand of Anna Mae
and was clearly not a guided “assisted” signature:
Q: ... [I]f there is testimony in the record that another person took the hand
of Thomas Mynatt and guided it across the line writing the complete
name Thomas Mynatt by that hand being held and guided, what would
be your response to that statement as to whether or not that is a guided,
assisted signature as opposed to being a signature that’s done by a
person other than Thomas Mynatt?
A: It’s my opinion that it is not a guided hand signature, clearly not a guided hand
signature.
Q: Clearly not?
A: Yes.
Q: And why do you say clearly not?
A: Because guided signatures by their very nature are very - they’re not
smooth and are very erratic in the writing, very angular in the writing,
and the writing will go off several different directions, and there’s two
main reasons for that. One is that the guider’s primarily using arm
movement rather than hand and finger movement and it’s the hand and
finger movement that creates the very intricate portion of handwriting
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design, whereas the arm creates rather gross, large, angular movements.
You don’t get the smoothness of strokes or the very fine details.
There’s very smooth writing on here relatively to what you would
expect with guided handwriting because it kind of looks like the
chicken scratch you would expect of a two year or three year old with
a crayon because they’re essentially using the arm stroke too. So
because of that, this doesn’t show any characteristics along that line.
Plus the fact that where there’s a guided hand, you’re having a conflict
of movement between the guider and the person being guided. The
person being guided will quite often be wanting to go one direction,
where the guider wants to go in the other and that creates additional
conflict, and you see that in the writing because the writing will start in
one direction and suddenly go another. So I can’t emphasize enough
that guided handwriting you see very gross movements all over the
place. You do not get smooth writing anywhere near the type of
writing that’s reflected in any of these questioned signatures.
Q: Clearly not a guided signature?
A: Clearly not in my opinion.
Q: Is it clearly the signature of a person other than Thomas Mynatt?
A: Yes.
The time line of Son’s knowledge of the 1991 deed resulted in testimony regarding
an additional deed executed in 1993 that conveyed six acres of the original 25 acres to his
sister Patsy and her husband, Myron Ford. The 1993 deed bears the signatures of Father,6
Anna Mae, and the LeMarrs as grantors. According to Son, following Father’s death in
1995, Anna Mae and Daughter both represented to him that Patsy and her husband had
tricked Father into giving them the property. In 1997, they asked him to help secure a return
of the land from the Fords, and at the request of Anna Mae, he drove her alone to the law
office of Michael Hatmaker and paid an $800 fee on her behalf.7 Son observes that despite
6
Son opined that Father’s signature on the 1993 deed also was not authentic.
7
Daughter testified that she rode to the attorney’s office with Anna Mae and Son and sat with him
in the presence of the attorney to discuss both the 1993 deed and 1991 deed. Daughter testified:
Q: How did you get there, and who was present in Mike Hatmaker’s office?
(continued...)
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his awareness of the existence of the lawsuit, neither Anna Mae nor the LeMarrs advised him
of the nature or outcome of the litigation. The complaint filed in Campbell County Chancery
Court, case number 14,392, Anna Mae Mynatt vs. Myron and Patsy Ford, was filed May 16,
1997, and an order of compromise and dismissal was entered May 3, 1999. As a result of the
action, two of the six acres were deeded back to the LeMarrs and Anna Mae.8 Son claims
that he did not see the 1993 deed until after he filed this cause of action in 2005, at which
time the 1993 deed was shown to him by the Fords.
Interestingly, the LeMarrs were not parties to the 1997 litigation over the 1993 deed,
although they had title to the entire 25 acres by virtue of the 1991 deed, and the six acres
recited in the 1993 deed was part of the 25 acres.9 The 1993 deed contains a notary
acknowledgment confirming that Father, Anna Mae, and the LeMarrs appeared before a
7
(...continued)
A: Jim drove us down there. It was me, my mom, and my brother. Mom went down to
discuss with Mike Hatmaker to get that land back from Patsy and Myron.
Q: What was discussed? And your brother, James Mynatt, was in the room?
A: Yes he was.
Q: And what was discussed?
A: It was discussed about the deed.
Q: Which deed?
A: Our deed.
Q: And -
A: And wanting the acres put back on our deed. And Jim told me he wanted the two
point whatever acres it was, put on the original deed.
8
The remaining four acres with the house built by the Fords ultimately was lost in foreclosure.
9
She testified under cross-examination:
Q: Well if you own the 25 acres, and you’re in the law office with the lawyer and your
brother, why aren’t you a party to this lawsuit against the Fords, since you and your
husband own the 25 acres? Why aren’t you all parties to the lawsuit?
A: That I cannot tell you.
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notary who acknowledged their signatures. Mr. LeMarr, however, could not vouch for the
authenticity of Father’s signature on the 1993 deed and conceded the notary
acknowledgement was false, for he did not appear before the notary. Mr. LeMarr testified:
Q: You were here this morning when we looked at the other Deed with
your wife. When this deed was done in 1993 to Myron and Patsy Ford,
were you present when everybody signed it?
A: Not when everybody signed, no.
Q: Who was present when –
A: The paper was brought down to the trailer for me and my wife to sign.
Q: Who brought it to the trailer?
A: Patsy and my mother-in-law.
Q: So you didn’t even appear before a notary?
A: No.
Q: So where this notary says on here that you and Charlene appeared
before him and signed this 1993 Deed, that is not correct?
A: No.
After a bench trial was conducted on September 9 and 10, 2013, the trial court
entering its order on October 2, 2013, finding that Son did not carry the burden of proof
necessary to void the deed and dismissed the complaint. In pertinent part, the court ruled as
follows:
The Plaintiff’s position is that Thomas Mynatt’s hand was too shaky to sign a
deed in 1991. His sister’s explanation of how her father signed the deed is that
the elderly Mr. Mynatt’s wife, Anna Mae Mynatt, placed her hand over the top
of his and assisted in guiding his signature.
The Plaintiff’s forensic document examiner, Thomas Vastrick, testified at trial
that Thomas Mynatt’s signature is “clearly” not an assisted signature such as
described.
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The Defendants, on the other hand, take the position that their testimony is
convincing and believable and that even if it were not, the notarized signature
on a deed cannot be impeached. The deed under attack bears the following
notarization:
Personally appeared before me, David B. Rogers, a notary
public for Campbell County, Tennessee, Thomas C. Mynatt and
wife, Anna Mae Mynatt with whom I am personally acquainted
(or proved to me on the basis of satisfactory evidence), and who
acknowledged they executed the within instrument for the
purpose herein contained.
David B. Rogers signed the notarization on December 14, 1991. The
document bears his seal and oath.
The Court notes that the Plaintiff, after having been ordered to prepare
proposed findings of facts and conclusions of law, including any authority on
the presumption of regularity in a notarized document and the effect of a
forgery, has not cited the Court one case in which a long-recorded deed with
a notarized signature has been set aside for forgery. On the other hand, the
Defendants’ have cited the case Kyle v. Kyle and cases cited therein for the
proposition that the party attacking a notarized deed has the burden of proving
by “full, convincing, and conclusive” evidence that the deed was forged and
the acknowledgment was somehow false. In Kyle v. Kyle, 74 S.W.2nd 1065
(Tenn. Ct. App. 1934), the “issue presented [was] whether or not Robert C.
Kyle signed and acknowledged a deed dated May 13, 1916, purporting to
convey” an interest in land to a Mr. Garrett. “The deed was registered on the
day it bears date. It bears a certificate regular in form to the effect that the
bargainer, Robert C. Kyle, acknowledged that he executed the instrument for
the purposes therein contained.” Id. at 1065. Mr. Kyle denied “that he at
anytime signed any deed or other instrument which conveys, or purports to
convey, any interest” in the land and he further denied that he appeared before
a notary public or was acquainted with the notary public who notarized the
deed. At trial,
Robert C. Kyle testified that he never signed or acknowledge the
deed, never received a check, nor endorsed it; and that his name,
as signed to these papers, was a forgery. He [was] very plain
and emphatic in his testimony. He said that he never knew of
the existence of this deed even though it was of record, until
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shortly before this suit was brought.
The Chancellor ruled in favor of Mr. Kyle, that the deed was forgery and that
he did not convey his interest away. On appeal, even though no one attacked
Mr. Kyle’s character or credibility, the Chancery Court was reversed. The
Court of Appeals recounted all of the evidence supporting a finding that the
deed was a forgery, and then found as follows:
On the other hand, we have a deed regular in form and a check
endorsed relating to a transaction which is very likely to have
been consummated. The presumption is in favor of the validity
of these papers. The testimony of the grantor alone is
insufficient to invalidate the deed. The other evidence does not
satisfy this Court that the signatures are forgeries, even when
taken in connection with the testimony of Kyle himself. We do
not know absolutely what is the truth about this matter. The
burden was upon the cross-complainant, Kyle, to establish by
clear, satisfactory, and conclusive evidence that the deed is a
forgery. The evidence which has been adduced does not fulfill
these requirements, in our opinion. Therefore the decree of the
Chancery Court will be reversed and the cross-bill of Robert C.
Kyle will be dismissed.
Id. at 1069.
The controlling rationale seems to be found in the Court’s discussion of
Kennedy v. Security Bldg. & Savings Association (Tenn. Ch. App.) 57
S.W.388, 394 as set forth at pages 1067 and 1068 of Kyle.
In Kennedy v. Security Building & Savings Association . . . it
was held that a deed of trust should not be set aside on the
unsupported testimony of the complainant, a married woman,
that she did not appear before the officer and acknowledge the
deed, and that his certificate was false. The notary public taking
the acknowledgment acts judicially and the duty is imposed
upon him by law of ascertaining the truth of the matters about
which he is to certify. In the opinion in that case it is recited
that in Lickmon v. Harding, 65 Ill. 505, a deed properly certified
and acknowledged on its face was assailed on the ground that
the certificate of acknowledgment was false and a forgery, and
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that the party never appeared before the officer; that the Court
held that the certificate could not be overthrown by the
unsupported testimony of the grantor, saying: “Public policy
requires that such an act should prevail over the unsupported
testimony of an interested party, otherwise there would be but
slight security in titles to land. If the magistrate, in taking the
acknowledgment, acts judicially, the duty is imposed upon him
by law of ascertaining the truth of the matters about which he is
certifying. Parties act on the faith of this certificate, and, in the
absence of fraud and collusion, it must be entitled to full credit.”
In this state it has been definitely held that the act of the
certifying officer is in the nature of a judicial act, an essential
part of the conveyance, and the probate of it can only be attack
for fraud. Shields v. Netherland, 73 Tenn. 193, 5 Lea. 193.
This Court is convinced that if the grantor himself cannot overthrow a deed by
testifying that he did not appear before the notary and that he did not sign the
deed, the same result must follow when a expert witness, based upon his
examination of the document, testified that someone else must have signed the
deed because it could not have been signed by the grantor. The Court also
notes that according to the dictates of Kyle, it is not enough that the evidence
preponderates in favor of the person attacking the deed; rather the evidence
must be clear and convincing. The Court was able to observe the demeanor
of the Plaintiff’s expert Mr. Vastrick, and the Court believes that his testimony,
when viewed in light of the presumption of regularity and compared with
people who were there, is somewhat speculative. He gave very little in the
way of specifics to explain how it is that the interactions of Thomas Mynatt
and his wife would not have produced the “assisted” signature on the deed.
The bottom line is that the Court does not view Mr. Vastrick’s testimony as
clear and convincing evidence to set aside the deed.
The Plaintiff makes much of the fact that the Defendants did not inform him
of their deed and that he allegedly did not find out [about] the deed until 2002.
However, the deed was recorded in January of 1992 after its execution in
December of 1991. Further, the Court is not convinced that James Mynatt did
not know of the Defendants’ interest in the property until 2002. James Mynatt
played a part in a lawsuit brought by his stepmother against his sister Patsy
Ford in 1997. In that case, the allegation is made in paragraph five (5) of the
complaint that “[Anna Mae Mynatt], along with her then husband, deeded
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certain property to another son-in-law and daughter Bobby LeMarr and
Charlene LeMarr, which property is described by deed of record at Warranty
Deed Book 306, 241, in the Campbell County, Tennessee Register of Deeds
Office at Jacksboro.” James Mynatt admitted at the trial in the present case
that he took his stepmother, Anna Mae Mynatt, to Attorney Mike Hatmaker’s
office and hired Mr. Hatmaker to represent Anna Mae Mynatt in the 1997
lawsuit, the object of which was to revoke a deed made from the Defendants
to Myron Ford and Patsy Ford.
Apparently, the Plaintiff wants this Court to order the Defendants to pay him
compensatory damages for certain improvements he made on the family farm.
However, at the time he made the improvements, he had, at best, a hope that
he would inherit along with five (5) siblings. Further, the evidence confirms
that James Mynatt derived some economic benefit from making the
improvements in that he used them in a farming operation that he conducted
with his father until Thomas Mynatt died and then on his own behalf after the
father died. Furthermore, the recorded deed was notice to all the world,
including the Plaintiff, that someone else owned the land as of 1991.
Accordingly, the Court is not inclined to award damages against the
Defendants. Moreover, the Court is unaware of any specific testimony as to
the dollar amount of the alleged damages.
In summary, the Plaintiff failed to carry the burden of proof necessary for
voiding the deed or awarding damages. The Plaintiff’s complaint is dismissed
with prejudice with cost taxed to the Plaintiff.
Plaintiff filed this timely appeal.
II. ISSUES
The issues raised on appeal by Son are restated as follows:
a.) Did the trial court err in disregarding the testimony of the expert by finding
it to be speculative.
b.) Did the trial court err by disregarding that the deed failed to contain the
notary acknowledgment required by Tennessee Code Annotated section 66-22-
107(c).
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c.) Did the trial court err in finding that the testimony of the LeMarrs was
more credible than the testimony of Son on the issue that Son was not aware
of the recording of the 1991 deed until 2002.
III. STANDARD OF REVIEW
This court will review the trial court’s findings of fact de novo upon the record,
according a presumption of correctness to the findings. Tenn. R. App. P. 13(d); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); Keaton v. Hancock Cnty. Bd. of Educ., 119
S.W.3d 218, 222 (Tenn. Ct. App. 2003). We will not reverse the trial court’s factual findings
unless they are contrary to the preponderance of the evidence. Berryhill v. Rhodes, 21
S.W.3d 188, 190 (Tenn. 2000). If the trial court’s factual determinations are based on its
assessment of witness credibility, this court will not reevaluate that assessment absent clear
and convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
No presumption of correctness attaches to a trial court’s conclusions of law. Bowden v.
Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
Son has the burden of establishing under a clear, cogent, and convincing evidence
standard that it is highly probable that the deed in issue is a forgery. However, the trial judge
observes the witnesses face to face, hears their testimony and observes their demeanor on the
stand, and thus the trial judge is the primary instrumentality of justice to determine the weight
and credibility to be given to the testimony of witnesses. Bolin v. State, 405 S.W.2d 768, 771
(Tenn.1966).
IV. DISCUSSION
Son contends the trial court failed to appreciate the clear, cogent, and convincing
proof that the 1991 deed was a forgery. A forged deed is “null and void upon its execution.”
Beazley v. Turgeon, 772 S.W.2d 53, 59 (Tenn. Ct. App. 1988). It is well settled that to set
aside a deed on the grounds of fraud, the proof thereof must be clear, cogent, and convincing.
Myers v. Myers, 891 S.W.2d 216 (Tenn. Ct. App.1994); Pugh v. Burton, 166 S.W.2d 624
(Tenn. Ct. App.1942); Anderson v. Howard, 74 S.W.2d 387 (Tenn. Ct. App.1934). The
standard set forth in O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App.1995) defines
the proper standard:
The “clear and convincing evidence” standard defies precise definition.
Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App.1989). While it is more
exacting than the preponderance of the evidence standard, Santosky v. Kramer,
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455 U.S. [745,] 766, 102 S.Ct. [1388,] 1401[(1982)]; Rentenbach Eng’g Co.
v. General Realty Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App.1985), it does not
require such certainty as the beyond a reasonable doubt standard. Brandon v.
Wright, 838 S.W.2d 532, 536 (Tenn. Ct. App.1992); State v. Groves, 735
S.W.2d 843, 846 (Tenn. Crim. App.1987).
Clear and convincing evidence eliminates any serious or substantial doubt
concerning the correctness of the conclusions to be drawn from the evidence.
See Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992). It
should produce in the fact-finder’s mind a firm belief or conviction with regard
to the truth of the allegations sought to be established. In re Estate of
Armstrong, 859 S.W.2d 323, 328 (Tenn. Ct. App.1993); Brandon v. Wright,
838 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct.
App.1985).
O’Daniel, 905 S.W.2d at 188.
The trial court was able to observe the demeanor of Son’s expert. It determined that
his testimony, when viewed in light of the presumption of regularity and compared with
people who were there, was somewhat speculative. The bottom line is that the court did not
view Mr. Vastrick’s testimony as clear and convincing evidence to set aside the deed.
The uncontroverted proof reveals that Father was physically present at the execution
of the 1991 deed. He attempted to sign his name (hence the appearance of the “mark”), but
because of a physical condition which caused his hand to shake, he found he was unable to
physically sign his name legibly by himself. Anna Mae placed her hand over his hand and
assisted him in making the signature which appears upon the deed. There was no testimony
or proof that Father resisted his wife in assisting him to place his name upon the 1991 deed
or that he objected to her doing so. There is no proof that Father was mentally incompetent
or under any physical disability such as would prevent him from executing the 1991 deed or
such as would prevent him from formulating the intent to execute thereby the 1991 deed.
The testimony of Son’s expert witness did not in any way contradict the testimony of the
LeMarrs of how that “squiggly” mark was made at the beginning of Father’s signature on the
1991 deed.
The acknowledgment placed upon the 1991 deed provides as follows:
“Personally appeared before me, David B. Rogers, a Notary Public for
Campbell County, Tennessee Thomas C. Mynatt and wife, Anna Mae Mynatt,
with whom I am personally acquainted, (or proved to me on the basis of
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satisfactory evidence), and who acknowledged that they executed the within
instrument for the purposes therein contained.”
This acknowledgment by the notary public is consistent with the testimony of the LeMarrs
that Father caused his signature to be written upon that deed with the intent to convey the
property to the LeMarrs as evidenced by the deed itself. A notary public’s certificate means
a great deal more than the “Good Housekeeping Seal of Approval.” Beazley, 772 S.W.2d
at 59. When a notary public properly acknowledges a instrument he or she “says to the
world that the execution of the instrument was carried out according to law,” and anyone
who relies on the instrument should be able to assume its validity. In re Marsh, 12 S.W.3d
449, 453 (Tenn. 2000) (quoting Beazley, 772 S.W.2d at 59). Because a notary is a public
official of the state of Tennessee and discharges his or her duties under oath, it is presumed
that a notary public has acted lawfully. However, that presumption of correctness may be
rebutted by the party challenging the document. Manis v. Farmers Bank of Sullivan Cnty.,
98 S.W.2d 313, 314 (Tenn.1936). The presumption that a notary public has performed his
or her duty does not prevail over contrary proof. Id.
Upon review, under the facts before us, there is no clear and convincing evidence that
Father did not intend the signature appearing upon the 1991 deed to be his signature or that
he did not intend to convey the property to the LeMarrs. We find it significant that Father
was present before the notary. Both of the LeMarrs who were present at the signing of the
deed claim the signature was intended as Father’s signature. The acknowledgment of the
notary public that the signatures on the 1991 deed are authentic and intended “for the
purposes therein contained” substantially complies with the statutory requirements.
Accordingly, the proof supports the determination of the trial court in favor of the LeMarrs
and the validity of the 1991 deed.
In regard to the form of the acknowledgment used, Son asserts that the 1991 deed is
defective because it did not contain the proper notary form authenticating the signature. He
relies on In re Crim, 81 S.W.3d 764 (Tenn. 2002), in which the Tennessee Supreme Court
noted:
The notary failed to use the prescribed statutorial form of acknowledgment,
with a result that the certificate of acknowledgment contains false statements
and indicates a lack of compliance with TCA 66-22-101 and 101(c). In order
for an instrument to be legally registered, it must bear evidence of proper
acknowledgment.
Id. at 769-770. Son therefore contends that since the notary failed to use the prescribed
statutory form of acknowledgment on the 1991 deed, it is not effective to establish a valid
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deed.
In Hindman v. Moore, No. E2005-01287-COA-R3-CV, 2006 WL 1408394 (Tenn. Ct.
App. May 23, 2006), this court held that In re Crim does not stand for the proposition that
a flawed acknowledgment will render a deed null and void. Rather, the opinion provides that
a flawed acknowledgment is not legally registered. Such a deed would be therefore void as
to “subsequent creditors or bona fide purchasers without notice.” Id. at *5. We further noted
that such a deed would still be valid as to “parties to the same, and their heirs and
representatives.” Id. Accordingly, any flaw in the acknowledgment would not void the 1991
deed as to these parties.
With respect to Son’s last issue, the LeMarrs promptly recorded the 1991 deed within
a month of execution, and the local newspaper published a notice of the property transaction.
This registration placed Son, as an heir, on constructive notice. In re Marsh, 12 S.W.3d 449,
454 (Tenn. 2000). The LeMarrs were under no duty to notify Son or anyone else of the 1991
deed.
V. CONCLUSION
The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, James Ray Mynatt. The case is remanded for collection of costs below, pursuant
to applicable law.
_________________________________
JOHN W. McCLARTY, JUDGE
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