# Joel A. Conkin, Administrator with Will Annexed of The Estate Of Mattie L. Mettetal v. Ray W. Mettetal, Jr., M.D.

> Court of Appeals of Tennessee · December 17, 2015

URL: https://www.frixlaw.com/law-library/cases/3165186

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** December 17, 2015
- **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
August 26, 2015 Session

JOEL A. CONKIN, ADMINISTRATOR WITH WILL ANNEXED
OF THE ESTATE OF MATTIE L. METTETAL v.
RAY W. METTETAL, JR., M.D., ET AL.

Appeal from the Chancery Court for Washington County
No. 41871 John C. Rambo, Chancellor

No. E2015-00141-COA-R3-CV-FILED-DECEMBER 17, 2015

Ray W. Mettetal, Jr., M.D. (“Dr. Mettetal”) and Ray W. Mettetal, Jr., M.D., Inc.
(“Corporation”) appeal the judgment of the Chancery Court for Washington County (“the
Trial Court”) finding and holding, inter alia, that Dr. Mettetal breached his fiduciary duty
to Mattie L. Mettetal (“Deceased”), improperly converted Deceased‟s funds to his benefit
and the benefit of his Corporation, and failed to show that the funds were in keeping with
gifts pursuant to Tenn. Code Ann. § 34-6-110. 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. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J. and JOHN W. MCCLARTY, J., joined.

Harry Curtis Williams, Johnson City, Tennessee, for the appellants, Ray W. Mettetal, Jr.,
M.D. and Ray W. Mettetal, Jr., M.D., Inc.

Richard M. Currie, Jr., Kingsport, Tennessee, for the appellee, Joel A. Conkin,
Administrator With Will Annexed of the Estate of Mattie L. Mettetal.
OPINION

Background

Dr. Mettetal is Deceased‟s son. In August of 2002, Deceased executed a Durable
Power of Attorney naming Dr. Mettetal as her attorney-in-fact (“Power of Attorney”).
Deceased suffered a stroke in August of 2007, which rendered her incompetent. After
Deceased‟s stroke, Dr. Mettetal utilized the Power of Attorney to conduct numerous
transactions involving Deceased‟s money directly benefitting himself and his
Corporation.

Deceased died in December of 2009. Deceased‟s Last Will and Testament (“the
Will”) was admitted to probate in February of 2010, and Joel A. Conkin was named
Administrator with Will Annexed of the Estate of Mattie L. Mettetal (“the
Administrator”).

The Administrator sued Dr. Mettetal and his Corporation in November of 2012
alleging, in part, that Dr. Mettetal had breached his fiduciary duty to Deceased and
committed conversion of Deceased‟s property. The Trial Court bifurcated the trial first
hearing the issue of whether Dr. Mettetal had breached his fiduciary duty to Deceased
and improperly converted Deceased‟s property. After the first phase of trial the Trial,
Court entered its judgment on December 17, 2013 finding and holding, inter alia, that Dr.
Mettetal had breached his fiduciary duties to Deceased, that expenditures of Deceased‟s
funds after Deceased‟s stroke on August 14, 2007 for the benefit of Dr. Mettetal and his
Corporation raised a presumption of undue influence, and that Dr. Mettetal and the
Corporation had failed to rebut the presumption with clear and convincing evidence of
the fairness of the transactions and had failed to prove that the funds were gifts pursuant
to Tenn. Code Ann. § 34-6-110. During the second phase of trial, the Trial Court heard
evidence with regard to the amount of Deceased‟s money that Dr. Mettetal had converted
to his own benefit and the benefit of his Corporation.

Mattie Angelique Phipps, Deceased‟s adult granddaughter, testified at trial. Ms.
Phipps testified that she is a forty-two year old pharmacist who works in Hillsville,
Virginia. Ms. Phipps stated that Deceased was “more like a mother to me. . . . [S]he
helped in my raising, so to speak, and she was always a good role model for me. She was
a very smart business person, a very strong woman, always a leader.” Ms. Phipps
admitted that Deceased had helped her to obtain an education and testified that Deceased
probably had given her $8,000 to $10,000 to assist Ms. Phipps to obtain her education.

Ms. Phipps testified that Deceased had told her:

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She never, ever wanted to leave her home. In fact, I had built a three story
house in Galax and I wanted her to come live with me, because nobody was
really around after my grandfather died [in 1996], to take care of her. And
she refused because she wanted to stay in her home, even though she
would‟ve had an entire floor to herself.

Ms. Phipps testified that Deceased never returned to her own home after she had
the stroke. Deceased spent a brief period of time in a nursing home after the stroke and
then spent the remainder of her life living on a couch in Tammy Cash‟s trailer in a trailer
park. Ms. Phipps was asked how Deceased came to live in Ms. Cash‟s trailer, and she
stated:

There was some question about something that had happened at the nursing
home, potential maybe for abuse, and I had discussed with my uncle about
moving her to another facility. Actually, I discussed with him moving her
back to her home or to the rental property and having people look after her
around the clock. But he said he could not find anybody to give her that
kind of care. And then she was placed in a trailer with Tammy.

Ms. Phipps was asked about the conditions in Ms. Cash‟s home, and she stated:

The conditions were very poor. She had two children and a husband. Like
I said, my grandmother had to stay essentially in her living room area. As
soon as you came in through the front door, that‟s where my grandmother
stayed. And pretty much she stayed on a couch. She did not have a
hospital bed or anything like that.

Ms. Phipps was asked to describe Deceased‟s condition during the time Deceased
lived in Ms. Cash‟s trailer, and she stated:

She was unable to talk. She had to be, you know, pulled up for assistance
to walk. She was pretty much helpless. She had to be fed. You know, she
would try to feed herself, but it was very difficult for her. It was, it was
very pitiful. . . . She did not speak.

Ms. Phipps also testified that Deceased could not write at that time.

When asked if Deceased had ever spoken to her about the money Deceased spent
on Dr. Mettetal‟s behalf, Ms. Phipps stated: “Yes. She said, „Once he gets his license [to
practice medicine] back, he‟ll be able to repay me and help me with the bills here at the
house.‟” Ms. Phipps testified:
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[Dr. Mettetal] regained his first licensure back in Virginia, like in 2006, I
believe. And then Tennessee was shortly after that, I believe in 2007. It
was about, I‟m going to say, four months probably before she had her
stroke that he got his license back and she was extremely excited, because
she was, she was so proud that he had overcome his, you know, interment
in prison and everything. And then, you know, he had kind of redeemed
himself a little bit by getting his license back and she said, “Now, you can,
you know, start contributing back once you get a job.” So she was pretty
excited . . . [.]

Ms. Phipps testified that during that time period she tried to visit Deceased once a month
or more.

Dr. Mettetal testified that he was sixty-two years old at the time of trial. Dr.
Mettetal is licensed to practice medicine in both Virginia and Tennessee and is board
certified in medical neurology. He testified that he practices medicine five days a week.

Dr. Mettetal graduated from the University of Tennessee medical school in
Memphis in 1977 and then did a year-long internship at Baptist Hospital in Memphis. He
testified that he then practiced in Mississippi as an emergency medicine physician for a
year, spent two years at the National Institutes of Health doing research on brain tumors,
and then did a residency at Vanderbilt‟s Department of Neurology. Dr. Mettetal also did
a year of neurosurgery residency. Dr. Mettetal took some time during the residency
programs to work in emergency medicine. He testified that he then went to
Charlottesville, Virginia and did a fellowship involving the treatment of stroke patients.
Dr. Mettetal spent approximately three years in Charlottesville. He then worked as a
neurologist in Harrisonburg, Virginia.

Dr. Mettetal admitted that he was arrested outside of Vanderbilt Hospital in
August of 1995. He was wearing a wig and a false beard when arrested. Dr. Mettetal
was held in Tennessee for a short time and then transferred to federal custody in Virginia.
Dr. Mettetal then spent approximately six years alternating between state and federal
custody. He then spent approximately a year and a half on supervised probation before
the Court of Appeals for the Fourth Circuit vacated his sentence. Dr. Mettetal admitted
that after he was arrested police obtained search warrants and searched his property in
Virginia, and as a result Dr. Mettetal was tried and convicted of possession of a toxin and
possession of false identity documents. His conviction later was overturned, and Dr.
Mettetal was tried and convicted again. Eventually, the Court of Appeals for the Fourth
Circuit determined that there had not been probable cause to arrest Dr. Mettetal and,

4
therefore, the evidence from the searches was inadmissible, and Dr. Mettetal‟s
convictions were vacated.

In February of 2002 after being released from jail, Dr. Mettetal went to live with
Deceased. Dr. Mettetal testified that he had become estranged from his parents while he
was in medical school in 1976 or 1977. Dr. Mettetal testified that his father had been a
physician in general practice in Johnson City. Dr. Mettetal‟s father died prior to Dr.
Mettetal moving in with Deceased in 2002. Dr. Mettetal moved in with his mother in
2002 when she was eighty-two years old and had health problems including macular
degeneration, diabetes, hypertension, and osteoarthritis, but was mentally alert.

Dr. Mettetal testified that when he went to live with Deceased he “might have had,
a couple, maybe $200.00 in my pocket, and that was a, a gift from somebody.” Dr.
Mettetal was asked if Deceased paid his expenses when he moved in with her, and he
stated: “She really did. I, I could have gotten a job doing menial labor or something like
that, but she, I was, I was more, of greater value to her, in terms of buying her groceries,
paying her bills, taking her to her various genealogic meetings, taking her to church . . .
four times a week.” Dr. Mettetal testified that he had a credit card and that Deceased
paid the monthly charges on this card.

At some point after he moved in with her, Dr. Mettetal began writing checks on
Deceased‟s checking account for her. He testified that he would write the check and then
would tell Deceased what the check was for and the amount and she would sign the
check. Dr. Mettetal testified that Deceased did not have an ATM account when he
moved in with her. He stated: “The day laborers, necessary to take care of her estate, you
know, wanted, you know, of course, they wanted cash. And so we, Mother and I went
together and had that ATM account established.”

Dr. Mettetal admitted that under Deceased‟s Will he inherited Deceased‟s real
estate and her home. Dr. Mettetal stated:

The, the estate is, is, is twenty acres, so that the, the mowing and the, and
there are miles of chain link fence to be maintained. There are acres of
probably twenty, probably ten to fifteen of the twenty acres are, have to be
mowed. It‟s, it‟s, and then also a lot of it is, is wooded, so that leaf
collection is a huge issue. So, there‟s a great deal of labor. When I, when I
arrived home some, I had somebody comment that, you know, it looked
like nobody lived there. It, it‟s, even as a, a non-physically impaired adult
it‟s a challenge to, to maintain the property.

When asked to describe the property, Dr. Mettetal stated:
5
Well, there is the five stable barn that my mom had for her Walking Horses,
with a loft. It‟s, and it‟s approximately twenty-five feet wide and about
seventy-five feet log [sic]. There‟s the two story brick house, in which
Mother lived, which is probably a little less than thirty-five hundred square
feet. And then there is a one story brick house that is probably about a
thousand to twelve hundred square feet that used to be inhabited by a
family friend called Rosalee Coleman, who was a, the first dietician at
Memorial Hospital in Johnson City. And she, she was a single lady. And
then also there are, there is a, probably, five or six hundred square foot, one
bedroom apartment that‟s attached to the barn. And there‟s also two
outbuildings, or three, I guess three additional minor structures.

Dr. Mettetal was asked if he used Deceased‟s funds to renovate, maintain, or
improve the property, and he stated:

Yeah. A lot of, a lot of the property had what was, real estate agents called,
deferred maintenance. The, there, there was, there were several buildings
that were, the, the barn was about to collapse. It needed, and also the, the
barn roof had, it had been decades and decades since, and it was leaking
and, and causing problems. And the barn was also infested with powder
post beetles. Her house needed a new roof and, you know, she really
wasn‟t aware of that. And she had had leaks before. Her oil furnace to the
house was totally inoperable. I mean, it had just over the years had just
collapsed, the, the baking interior of it. The electrical wiring of the, the
house, the breakers were so old that they weren‟t functional. They were
dangerous. The driveway was in, hadn‟t been repaired in years, so that was
another, that was another issue. The, probably five to ten acres had grown
up in very thick undergrowth. The, there were dozens of ground hog holes
that are, you know, the, the place was just infested. I mean, it was, it‟s just
a big place to take care of.

Dr. Mettetal was asked about money spent on a playhouse on the property after Deceased
had the stroke, and he explained:

The, the playhouse was built with leftover materials from the, from the two
story brick home. And it was, it‟s been in existence since the early ‟50s, I
think. The, the playhouse was the, the termites had destroyed the flooring.
And of course, the roof was in bad repair. So there was some expense.
And also the windows were in bad repair. So it, you know, was, it‟s a very

6
small structure. It‟s probably, you know, two hundred square feet. It‟s just
a one room, basically a playhouse.

Dr. Mettetal testified that when he moved in with Deceased she only had been
taking care of “basically her front yard, maybe two acres or so,” and the remainder of the
property was “in briars, honeysuckle, and plus you know, there‟s, you know, around
twenty acres, that involves probably several miles of chain link fencing.” Dr. Mettetal
further stated: “So there‟s maintenance to be done on the land, even though it‟s wooded.”

After Deceased had the stroke, Dr. Mettetal continued to live in Deceased‟s house.
In 2007, 2008, and 2009, Dr. Mettetal paid approximately $100 a month to have someone
clean the house. Dr. Mettetal admitted that he made numerous ATM withdrawals from
Deceased‟s account for maintenance and repair of the property. He stated that he would
pay the laborers who worked on the property by the day with the amount dependent upon
the level of skill of the job. Dr. Mettetal testified that he paid the mechanics who took
care of the engines like the weed eaters, leaf blowers, chain saws, and tractors $10.00 per
hour. Dr. Mettetal paid around $7.00 per hour for raking leaves or mowing. For
carpentry or painting Dr. Mettetal paid $14 to $17 per hour. Dr. Mettetal was asked if he
ever paid any one worker more than $600 in a year, and he did not know. He testified
that he never paid Social Security tax for any of the workers or provided them a Form
1099. In October of 2009 Dr. Mettetal paid $1,050.00 to strip, sand, paint, and provide
hardware hinges for a barn door. He stated: “This was the original, original 1950 or ‟49
door that was on the, on the barn.”

Dr. Mettetal wrote a check from Deceased‟s account in December of 2008 for
$600.00 for stump grinding, replacing barn sink, and leaf removal. In January of 2009
Dr. Mettetal wrote a check for $300.00 from Deceased‟s account for mulching labor. He
stated:

And basically what that is is we‟ve gathered up all of the limbs that have
fallen down off of the property. We‟ve, we‟ve, and also any branches that
were, some of the oak trees, you know, uprooted and fell over. So we cut
the branches off, saved the branches, rented a machine from East Tennessee
Rent-Alls and mulched them. So basically, that is just putting limb after
limb after limb into this huge mulching machine that can mulch branches
up to six inches.

Dr. Mettetal testified that the mulch then was put on flower beds on the property. Dr.
Mettetal made an ATM withdrawal from Deceased‟s account in November of 2008 for
$700.00, which was noted to be for leaf removal and barn light. When questioned about

7
this and asked whether he paid $7.00 per hour for one hundred hours for leaf removal,
Dr. Mettetal stated:

The barn was originally not well illuminated because, you know, it was just
used for livestock and purposes of hay storage. I bought enough, I found, I
found a source where I had, they were huge, they were surplus or used
florescent lights like the ones in the Courthouse, this Courthouse ceiling.
And I bought, I believe I put one in every stall and then I put five or more
in the hallway and then I put another five or six in the, in the barn loft. And
then I also, of course, that involved electrical wiring. So that, and the
space, you know, provided, you know, that‟s, that‟s what that is.

Dr. Mettetal made an ATM withdrawal from Deceased‟s account in October of
2008 for $700.00 and made a notation that the withdrawal was for primer, painting
and labor for the patio.

Dr. Mettetal testified about Deceased‟s stroke, which occurred on August 14,
2007. He explained that he placed Deceased into the car and alerted the hospital that they
were on the way. He stated that during the drive to the hospital Deceased “just stopped
talking to” him, and she never spoke again. Dr. Mettetal explained:

The only way that she was able to communicate was she had, she had
destroyed the expressive part of speech production. She still, I, the, the
part, the, the receptive part of speech, being able hear [sic] speech, was still
intact. And when you would talk to her, you could tell her facial
expressions. For instance, when Angie would visit, you know, her, you
know, her face would light up, or, and so I knew, you know, she, she knew,
she could hear Angie‟s voice and knew Angie‟s voice. I, I don‟t think her,
her sight was good enough to really say, you know, “This is Angie,”
although, she could see, make guesses from outlines. Another thing she
would do is, I remember that she could express disapproval. For instance, I
know we have a relative, her, a relative named Jan, her maiden name was
Jan Wordlaw (phonetically), which was her brother‟s daughter, made the
comment, visited from Mississippi and made the comment that she missed
the last DAR meeting that was in her hometown in Mississippi and Mother
would kick her leg up off of the bed when she said that.

Dr. Mettetal testified that an autopsy performed on Deceased showed no evidence of
Alzheimer‟s.

8
Dr. Mettetal agreed that Deceased had a dread about going into a nursing home.
When asked about what happened when Deceased got out of the hospital after having the
stroke, Dr. Mettetal stated:

The, I had asked, when it came time for her to come out of the hospital, she
went through a series, she went to a skilled nursing unit at Quillen Hospital.
And then she went to a, the Quillen Rehabilitation Hospital. And then I
began asking other physicians for advice on the nursing homes. And, and I
was told well, there, none of them are very good, but the, the, the least
offensive of all of them are Colonial Hills or, and, and then they got sold to
National Health Care Corporation.

Dr. Mettetal admitted that he began using the Power of Attorney after Deceased‟s
stroke to make expenditures for Deceased, for her property, and for himself. Dr. Mettetal
admitted writing checks on Deceased‟s account for his sole benefit including paying the
charges for his credit card. He also loaned some of Deceased‟s money to his
Corporation.

Dr. Mettetal wrote a check from Deceased‟s account in November of 2009 for his
benefit related to an arbitration with Blue Cross Blue Shield. He wrote another check
from Deceased‟s account in December of 2009 for $2,750.00 for arbitration with Blue
Cross Blue Shield for his own benefit. Dr. Mettetal wrote a check for $1,250.00 from
Deceased‟s account in December of 2009 for an American Arbitration Association file
fee on his behalf. He wrote one from Deceased‟s account for $3,000.00 in December of
2009 for arbitration with Blue Cross Blue Shield for his benefit.

Dr. Mettetal made two loans of $5,000.00 each to his Corporation from
Deceased‟s checking account. Dr. Mettetal admitted that he did not repay these loans. In
October of 2009, Dr. Mettetal wrote a check for $2,000.00 from Deceased‟s checking
account and deposited it into his Corporation account. Dr. Mettetal testified that he has
not repaid that loan. In March of 2008, Dr. Mettetal wrote a check for $500.00 from
Deceased‟s account, deposited it into his personal account, and notated that it was a loan.

Dr. Mettetal agreed that the Special Master‟s Report showed that in March of 2008
Dr. Mettetal charged $93.53 to his credit card for a diploma mat for the diploma of his
great-grandfather. Also in March of 2008 Dr. Mettetal charged $37.21 for a shoe rack for
himself. In January of 2009, Dr. Mettetal wrote a check from Deceased‟s account for
$100 for a trip to Biltmore that he took with a church group. In February of 2009, Dr.
Mettetal charged $63.33 to his credit card to frame a print. He explained:

The, a close friend of the family was Clifford Maxwell. And he had, he
9
was a, and he used to be a photographer. He was an artist. And he had
painted a, a historic theme, you know, for a wall, you know, a, a, depiction
of a horse and buggy in front of a country inn. And that was in Mother‟s,
that was given to my parents as a Christmas present. And so, you know, it
had never been framed. So you know, I had it framed.

Dr. Mettetal testified that the framed Maxwell print is in Deceased‟s house.

Dr. Mettetal was asked about a check written in January of 2003 to pay for his
Virginia medical license, and he admitted that he got his license back when that fee was
paid “[t]emporarily,” and stated that it was “a restricted license.” When asked if he
began practicing medicine in Virginia after he received this license, Dr. Mettetal stated:

No, Sir. I, the, the, nobody would, I went to several of the, the, the
different hospitals in Southwest, under, serve regions of Southwest
Virginia. And the corporations that own the hospitals said, “You know,
we‟re not going to hire any doctor that had been in jail for that length of
time and has not practiced medicine for that length of time.” If you‟re a
physician and you don‟t practice medicine for two years or more, you are
automatically considered unemployable, un, unable to practice medicine
until the Board of Medicine says you‟re, you‟re ready to practice.

Dr. Mettetal testified that he took steps such as getting continuing medical education to
get back into good standing, but that he was not in a position where he could practice
medicine in Virginia until February of 2013. He stated:

I, I see, I see you frowning at me. And I, I‟ll explain that to you. Number
one, number one, I, I went to various hospitals in Southwest Virginia and,
and even was going to work for, for a charity for nothing. There‟s
something called the Welcome Wagon there that the, the nuns at Saint
Mary‟s in Norton, Virginia had founded. And nobody would have anything
to do with me, period, even if I worked free. It wasn‟t until February of, of
2013 that I was actually, could go to Virginia and have a place to work.

Dr. Mettetal was asked if he had considered opening his own practice when he had
difficulty getting hired by hospitals in Virginia, and he stated:

No, I, no, I didn‟t. Simply because if I was, it‟s just so costly to, to, to open
a practice and if I don‟t, basically I could, you cannot practice, practice
medicine unless you have, I mean, you can practice medicine but you won‟t
be reimbursed until the insurance companies agree to accept your
10
credentials. And I didn‟t have those credentials until March of 2007. . . .
And then, even in March 2007, you still can‟t practice medicine if you have
a license and you are accepted by the, and you won‟t be accepted by any of
the insurance companies until you have malpractice insurance. And so I
had to get malpractice insurance also. And then the, the State Volunteer
Mutual has consistently refused to have any dealings with me.

Dr. Mettetal admitted that he received his Tennessee license in the mail in May of
2007. He testified that he began working:

July 19, 2007, I found a [sic] independently, working independently,
meaning he wasn‟t a part of, he didn‟t have any partners, no group or
anything. . . . Here in Johnson City. His name is [Gamal Butros], he‟s he
describes himself as a [sic] Egyptian of Greek descent. . . . And he is, he‟s
a medical neurologist and he decided that he would hire me to do his, you
know, create a medical record of the visits of his patients, so that, to, to
expedite his practice, so that he could see more patients and see them faster.
So I began to work with Dr. Butros as, as basically a medical typist. And I
think he gave me $7.00 per patient.

Dr. Mettetal admitted that in 2009 he was trying to set up his medical practice and
that he had rented an exam room from another doctor and was practicing outpatient
medical neurology. Dr. Mettetal continued working this practice through 2011 and then
also began working on Fridays at an addiction treatment center. Dr. Mettetal was asked
what he expected his income to be for 2013, and he stated: “I am working five days a
week and I am making twenty to $30,000.00 a month.” By January of 2013 Dr. Mettetal
notified his patients that he would no longer be practicing neurology. He testified that he
now practices addiction medicine and is working on obtaining a certification in this
specialty. Dr. Mettetal stated that he had the continuing medical education credits and
the actual practice hours necessary for certification and that he just needs to take the
exam, which is given every two years.

Dr. Mettetal admitted that after Deceased‟s stroke he no longer needed to do
things during the day for her like driving her places and preparing her meals. He stated:

But I still had to, I still visited her every day when she was in the various
hospitals, nursing homes and at the Cash residence. And then when she
was at the Cash residence, I also reviewed her, her vital signs, her blood
glucose, . . . and took supplies, including her diapers, her various medicines
to her and her tube feedings.

11
Dr. Mettetal testified that he arranged for Deceased to live with Tammy Cash.
When asked how Deceased wound up living at Tammy Cash‟s house, Dr. Mettetal stated:

When I, when I, when I saw Mom was, after she had finished her
rehabilitation from her stroke . . . . I realized that she was, was about to be
transferred to a nursing home. I, even before this had anticipated this and
was trying to set up the house so that I could get enough help and have a
safe environment at her own home, to take care of the house. I was even,
I‟d even contacted Fleenor Security so that, to arrange the security so that
the, the caregiver could come in to the front door and go back to the guest
room where Mother would be living and they wouldn‟t be able to go and
rummage through the rest of the house. And then I started calling as many
people as I could. I found, the, I still have the index cards of the different
people I called. And basically, I needed virtually twenty-four hour a day,
thirty, you know, three hundred sixty-five days a year care for Mom,
because her diapers needed to be changed, her glucose needed to be
checked, blood pressure, tube feedings. And, and also somebody strong
enough to take her back and forth to the restroom, because at that time she,
she could walk with assistance to the, to the bathroom, to, for her to
excrement. And I, I had talked to all of these people and I, I just was, none
of them were, they wanted to work certain hours. Some of them were
elderly themselves and didn‟t want to do anything that was physical, like
help Mother back and forth to the bathroom. So, I was, had, had hit a brick
wall. And a family friend, Sandra Maxwell, referred me to a lady who had
cared for her elderly mother, who, who died with Alzheimer‟s disorder and
cancer. And so, I thought well, if, you know, if she‟s going to recommend
this person that cared for her mother, I‟ll at least look at it. The person was
Tammy Cash. Tammy, I met Tammy and Tammy is a big, strong, strap,
strapping woman. The first time I talked to Tammy, she was performing
demolition construction at an apartment. So, I thought, well, you know, if
it‟s somebody trustworthy and, and strong and willing to take on the task,
you know, I‟ll, I‟ll certainly entertain that. Maybe I could get Tammy to do
most of the work, taking care of Mom and then maybe get some others to
help along the way.

Dr. Mettetal testified that he offered to let Tammy Cash live on Deceased‟s
property in what is known as Rosalee Coleman‟s house, but Ms. Cash did not want to do
this because she lived near her mother who was a dialysis patient. Dr. Mettetal stated that
for the first twelve months he, Ms. Cash, and Ms. Cash‟s mother took care of Deceased
and “did a good job.” He admitted that after Ms. Cash‟s mother died “the last several
months that, that Tammy took care of, or should have been taking care of my mom,
12
things were, things were not going well.” Dr. Mettetal stated: “There were two children
in the home and it was kind of an unusual situation to be living in a trailer, but she was
doing a better job than the nursing homes.” Dr. Mettetal was asked about the level of
care that he stated had declined, and he testified:

That, that‟s, that‟s correct and there‟s, there was, and it was hidden from
me. The, I had, I have the notebook of the blood pressures, glucoses, blood
and glucoses that had been taken accurately and correctly in the, in the first
twelve months of her stay there. And thereafter, they were falsified. Also,
another, another incident was, and this, this happened while Angie and I
were visiting, Angelique Phipps . . . were visiting Mom, we noticed Mother
was uncomfortable and we were going to look under my mom‟s diaper to
see what was wrong. And Tammy Cash, you know, wouldn‟t, wouldn‟t let
us. She said, “Oh, no, don‟t embarrass your mother like that. I‟ll take care
of it.” And it turned out that she had, Tammy had, was not informing me of
Mother‟s decubitus bed sore, a death of tissue overlying her sacrum. And I
had, and actually two weeks before I knew Mother was doing bad and I had
actually taken her to the doctor about two weeks before, because I had
suspected she had a urinary tract infection or another urinary tract infection
or another pneumonia that we weren‟t picking up. And so that‟s, that‟s a
true statement. And particularly, in, in retrospect I, I really didn‟t realize
what was, since Mom couldn‟t talk she couldn‟t tell me and I would visit
once a day and was being shown falsified data.

Dr. Mettetal admitted that Deceased had an investment account with a broker in
North Carolina and an IRA both of which were with Wachovia Bank, which later became
Wells Fargo. He further admitted that a letter from William Allen Winget dated February
21, 2008 addressed both to him and Deceased stated: “Dear Ray and Mattie, here‟s a
review of how your portfolio has done and the rate of outflow. At the current outflow
rate, funds will last about four more years. I realize that there are other assets she owns,
but this is the liquid part.” A letter from Mr. Winget dated December 16, 2008 stated:
“Ray and Mattie, Just wanted to update you on Mattie‟s account. At the rate funds are
going out, this account is empty in about plus/minus one and a half years out.” Dr.
Mettetal admitted that the statements for Deceased‟s investment account show that in
2006 the withdrawals were $88,385.00; in 2007 they were $94,800.00; and in 2008 they
were $126,155.00. Dr. Mettetal admitted that he used money withdrawn from
Deceased‟s investment account for repairs, renovations, and improvements to Deceased‟s
property, for her expenses, and for his own expenses.

The Special Master found that of the total charges to the Estate of $64,432.99, Dr.
Mettetal admitted that $56,092.63 was for his direct benefit. A portion of Dr. Mettetal‟s
13
deposition was read into the record at trial in which Dr. Mettetal stated: “I don‟t know
the, what the amount is. I‟m just saying that if I got money out of the Estate for my
benefit, I‟m willing to pay to repay that. I mean, that is, you know, I think that‟s fair.”
After further questioning during deposition, Dr. Mettetal was asked about his response to
the Special Master‟s report: “Now is that the amount that you now say you feel should ,
you should repay the Estate?” and Dr. Mettetal responded “Yes, Sir, the amount of
$56,092.63.” When questioned at trial further about this Dr. Mettetal stated:

[T]here‟s certain things, expenditures, that I knew she would make if she
were present. For instance, you know, I didn‟t write any checks to the
Barack Obama‟s campaign or any other Democrat. That, that wouldn‟t
have been what she wanted. The, the other expenditures, it‟s like she had
been, you know, she wanted me to pay her DAR dues, her genealogy dues.
I paid those. You know, the power bill, the light bill and the upkeep of the
thing, and she had helped me, she was trying to get me gainfully employed.
And I continued in that, you know, in that vein. My plan was to, I never
dreamed it would take me this long to be gainfully employed. And my plan
was to, you know, while she was living, you know, pay this money back.
But you know, also another thing to consider is when I gave my deposition
to Mr. Currie, I had no idea of the statute that says about lifetime gifts. So I
was only trying to be reasonable, in terms of the not expending legal fees
for a cause that wasn‟t legally defensible. So that was the nature of my
testimony, try, trying to be reasonable.

When asked if he tried to be fair when he made disbursements to himself Dr. Mettetal
stated: “Yes, Sir. Yes, Sir. I, when I made these disbursements, I, I thought my mom
was going to live to be a hundred and I was going to be gainfully employed and take care
of her the rest of her days.”

After trial the Trial Court entered its detailed Final Judgment on November 14,
2014 finding and holding, inter alia:

Upon motion of Plaintiff, the Court bifurcated the trial. During the
first phase of the trial, the Court found Defendants liable to the Mettetal
estate for expenditures of Mrs. Mettetal‟s money made after August 14,
2007, by Dr. Mettetal. In the Court‟s order entered on December 17, 2013,
the Court found the expenditure of Mattie L Mettetal‟s funds after August
14, 2007, accrued to the benefit of Dr. Mettetal and his Corporation. The
Court further found that these expenditures constituted an illegal
conversion of the property of Mattie L Mettetal and were in breach of Dr.
Mettetal‟s fiduciary responsibilities to Mrs. Mettetal. The Court rejected
14
Defendants‟ arguments that payments for their benefit represented a
continued course of gifting from Mrs. Mettetal upon Dr. Mettetal.

The Court conducted the second phase of the trial on February 2,
2014. The parties litigated, in light of the Court‟s previous liability
holding, what amounts Dr. Mettetal should repay to the estate of his
mother.

Dr. Ray W. Mettetal, Jr. was appointed Attorney-In-Fact for Mattie
L. Mettetal by Power of Attorney executed on August 15, 2002. Mattie L
Mettetal suffered a stroke on August 14, 2007, which rendered her
incompetent. As the attorney-in-fact for his Mother, Defendant was
obligated to handle her property honestly and loyally with the “utmost good
faith.” Martin v. Moore, 109 S.W.3d 305, 309 (Tenn. Ct. App. 2003).
Defendant and his mother were in a confidential relationship, which is one
“that gives one person the ability to exercise dominion and control over
another.” Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002). A
presumption arises from a confidential relationship that when a dominant
party received a benefit from the other party, the dominant party used
undue influence to obtain the benefit. Richmond v. Christian, 555 S.W.2d
105, 107 (Tenn. 1997). Where a presumption of undue influence arises, it
may be rebutted only by clear and convincing evidence. Matlock v.
Simpson, 902 S.W.2d 384, 386 (Tenn. 1995). The doctrine of undue
influence is applicable only where there is a confidential relationship. In re
Estate of Brevard, 213, S.W.3d 298, 302 (Tenn. Ct. App. 2006). Since the
Court found that a confidential relationship exists, Defendants must present
evidence to establish clearly and convincingly that the transactions by
which he received benefits to the detriment of his mother met the required
standard that he handled his mother‟s property honestly and loyally with the
“utmost good faith.” In re Estate of Copas, 2012 Tenn. App. LEXIS 41, *30
(Tenn. Ct. App. 2012)(quoting Martin, 109 S.W.3d 305, 309 (Tenn. Ct.
App. 2003)).

The existence of a confidential relationship combined with a gift or
benefit to the dominant party creates a presumption of undue influence and
of the invalidity of the transaction. Fell v. Rambo, 36 S.W.3d 837 (Tenn. Ct.
App. 2000). This presumption may be rebutted by clear and convincing
evidence of the fairness of the transaction. Hager v. Fitzgerald, 937 S.W.2d
668 (Tenn. Ct. App. 1996).

Defendants assert that Mrs. Mettetal had established a personal
15
history of making lifetime gifts to Dr. Mettetal, and Dr. Mettetal‟s use of his
mother‟s money constituted permissible performance of an act of gifting
that the principal might or could do as authorized by his mother‟s power of
attorney and TENN. CODE. ANN. § 34-6-110.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The testimony and evidence leads the Court to the conclusion that
Mrs. Mettetal financially supported her son and spent money in an effort
for him to regain his medical license for the purposes of his becoming
economically productive and financially self-sufficient. Without his
medical license and work as a physician, Dr. Mettetal could not achieve his
full career potential. After the death of her husband and for approximately
five years prior to her stroke, Mrs. Mettetal endeavored to support Dr.
Mettetal and to help him regain his medical license. In return, Dr. Mettetal
lived with his mother and looked after her. It was understandable that she
would bestow financially upon her son under these circumstances.

Dr. Mettetal asserts that he simply continued to fulfill his mother‟s
personal history of making lifetime gifts to him, and this is why he
breached no duty of loyalty to his mother. However, there are two
occassions [sic] that mark significant developments for Mrs. Mettetal and
her son, and these events defeat Defendants‟ assertion that Dr. Mettetal was
entitled to benefit from a continued course of gift-giving by Mrs. Mettetal,
implemented by him as her attorney-in-fact. Circumstances changed in
2007, and the history of support and gift-giving ended in 2007. The Court
reaches this conclusion because of these two significant milestones.

The first milestone occurred in July 2007, as Dr. Mettetal achieved
licensures by this date from the Commonwealth of Virginia and the State of
Tennessee to practice medicine. Based on the testimony and evidence at
trial, the Court finds that Mrs. Mettetal had the expectation in July 2007
that her son would no longer require her financial assistance and that she
now expected him to repay her for the financial investment she had made
toward his professional rehabilitation. In short, the testimony and evidence
at the November 25, 2013, trial convinces the Court that Mrs. Mettetal‟s
sponsorship of Dr. Mettetal had succeeded by July 2007, and she now
expected her son to repay her for her efforts. Mrs. Mettetal‟s gift-giving or
support for her son had a purpose - to enable him to rejoin the medical
community.

16
The Court finds that Mrs. Mettetal did not intend to continue to
support her son after he had acquired medical licenses from Tennessee and
Virginia. Her purpose was not to support her son indefinitely until her
money and assets had dissipated. Her purpose in providing support and her
course of gift-giving to her son ended immediately prior to her stroke.

The second milestone occurred in August 2007 when Mrs. Mettetal
suffered her stroke. The Court finds that Dr. Mettetal‟s contention that his
spending of his mother‟s money was a continued extension of his mother‟s
pattern of gift-giving is unpersuasive. She had fulfilled her perceived
obligation to her son, and Dr. Mettetal knew his mother‟s plan for his
professional rehabilitation was to allow him to work again and,
significantly, he knew her testamentary intent. With his regaining of his
medical licenses and her debilitating stroke, the needs of the mother and
son reversed. He now had the ability to support himself, and her stroke
meant she needed to rely on her money and her son‟s loyalty given her
fragile and debilitated medical condition.

The Court is convinced that Dr. Mettetal‟s motivation to continue to
spend his mother‟s money was not in furtherance of his mother‟s desire to
temporarily provide for him. Rather, Dr. Mettetal was motivated to use his
powers as her attorney-in-fact to maximize his financial gain. Dr. Mettetal
knew he was the sole beneficiary under his mother‟s will of her real
property. Further, Dr. Mettetal and others were joint residual beneficiaries
under her will. Thus, Dr. Mettetal stood to gain from the expenditures of
money to improve the real property during Mrs. Mettetal‟s lifetime. As the
sole beneficiary of the real property, the use of her money to improve the
real property defeated the interests of the residual beneficiaries of the estate
to the benefit of Dr. Mettetal by increasing the size of Dr. Mettetal‟s share
of his mother‟s estate. Moreover, there was not pressing or contemporary
need for the extensive rehabilitation of Mrs. Mettetal‟s real property. In
fact, she neither comprehended or enjoyed the benefits of this work
performance and expenditure of her money after her stroke. This course of
spending had no relation to Mrs. Mettetal‟s condition. Rather, the Court
finds that Dr. Mettetal intended to use as much of his mother‟s money as
possible to gain the maximum financial advantage for himself to the
detriment of his mother and the residual beneficiaries of his mother‟s Last
Will and Testament. Stated another way, the Court finds Dr. Mettetal
specifically set upon a course to spend his mother‟s money, which money
he would not wholly inherit, to improve that portion of her estate that he
would solely inherit and to support part of his personal expenditures during
17
the abbreviated remainder of Mrs. Mettetal‟s life.

After Mrs. Mettetal‟s stroke on August 14, 2007, she never returned
to her home. Repairs and improvements to her real property accrued little
to no benefit to Mrs. Mettetal. The Court finds that Dr. Mettetal set upon a
course to improve and enhance the home, buildings, and real property of
Mrs. Mettetal, because he desired to return them to their previous condition.
These efforts were not made to stabilize or maintain an asset belonging to
Mrs. Mettetal or to provide for her financial security.

Dr. Mettetal‟s conduct is further shocking in light of his mother‟s
compromised health, physical immobility, and financial need. Instead of
applying his mother‟s money to her comfort and care in her own home as
she had been accustomed, Dr. Mettetal made appalling arrangements for
Mrs. Mettetal‟s post-stroke care given the financial resources she had
available to her. Dr. Mettetal‟s post-stroke care choices for his mother were
made and selected because they represented cheap care and care that did
not require Dr. Mettetal to be tethered to his helpless mother. Although his
mother allowed her son to return home when he was unable to support
himself; she received no such consideration from him. Although living off
of his mother‟s money, living in his mother‟s home, and capable of
providing home care for his mother, Dr. Mettetal sent his mother away from
her home to live her last days on a stranger‟s sofa. Meanwhile, Dr.
Mettetal busied himself with the use of his mother‟s money to improve the
real property that he anticipated to shortly inherit.

Of the $64,432.99 sum the Special Master found chargeable to Dr.
Mettetal, the Court finds Plaintiff is entitled to a judgment of $60,432.99
against Dr. Ray Mettetal, Jr. Of this judgment amount, Dr. Mettetal
admitted that $56,092.63 found by the Special Master was for his benefit. . .
. Dr. Mettetal disputes $8,340.36, which represents the difference between
$64,432.99 and $56,092.63. Dr. Mettetal denies $8,340.36 was used for his
benefit by asserting this difference constitutes a $4,000 deposit on February
11, 2008, to the account of Mrs. Mettetal, a $4,210.00 “difference in
checking account,” and the amount of 36 cents for “difference in loans.”

As to the disputed $4,000 portion of the $8,340.36 difference, Dr.
Mettetal asserts this amount is a loan repayment, while Plaintiff asserts the
first loan to either Defendant occurred on March 7, 2008. The $4,000
deposit occurred on February 11, 2008. The Court finds this deposit was a
repayment of attorney fees advanced by his mother to Dr. Mettetal.
18
Accordingly, the Court finds by clear and convincing evidence this $4,000
is not money missing from Mrs. Mettetal‟s account, but funds received
from Dr. Mettetal for reimbursement of attorney fees.

Defendants failed to persuade the Court that a $4,210.00 “difference
in checking” error occurred in the Special Master‟s calculation of the
accounts of Mrs. Mettetal. Likewise, Defendants failed to provide
persuasive evidence to establish a deduction for 36 cents in loan interest.
The Court finds Defendants are not entitled to a credit of $4,210.00 for a
difference in checking account or the 36 cents difference on Defendants‟
loans. The Court finds the Special Master was correct in attributing all but
$4,000 of the $64,432.99 sum as chargeable to Dr. Mettetal as funds used
for the benefit of Defendants. Plaintiff is entitled to a judgment of
$60,432.99 against Defendants.

The Special Master found a total of $64,432.99 as charges
attributable to the personal benefit of Dr. Mettetal, but found that an
additional sum of $16,360 in checking account withdrawals were not
expenses that benefited Dr. Mettetal. As to the $16,360.00 listed on Exhibit
2 to the Special Master‟s Report, the Court finds these were expenditures to
Dr. Mettetal‟s benefit. The records presented as Exhibits 19, 21 and 22,
and Dr. Mettetal‟s testimony are unconvincing that these funds were spent
for the benefit of Mrs. Mettetal. These were consistent ATM lump-sum
cash withdrawals with no receipts from manual laborers working on the
improvements to the real property of Mrs. Mettetal. Reviewing the
components of this $16,360, the Court finds Dr. Mettetal‟s explanation for
spending $700 cash for tree surgery as unpersuasive. For similar services
he paid in check instead of cash. Dr. Mettetal used checks, which are
numbered 8553, 8682, 8684, 8948, 8955, 9054, 9064, 9074 and 9086, for a
total of $10,395.00 for tree surgery, tree cutting, stump grinding and tree
work. The Court fails to find any evidence that tree surgery benefited Mrs.
Mettetal given her medical condition and care needs after her stroke.

Dr. Mettetal asserted that various ATM slips and check registers
(Exhibits 19, 21, and 22) reflect cash withdrawals that were simply used for
various day-to-day expenses mostly related to the upkeep of Mrs. Mettetal‟s
real property, which was occupied by Dr. Mettetal. The Court rejects Dr.
Mettetal‟s explanation and assertions related to the cash withdrawals.
Frankly, this money was not used for Mrs. Mettetal‟s benefit. He did pay
cash to some day laborers, and to buy meals, but he used cash withdraws
[sic] from his mother‟s account as his own pocket money. The Court is not
19
persuaded that even a majority of the ATM and cash withdrawals went for
the purpose of paying laborers as asserted by Dr. Mettetal, but even if Dr.
Mettetal is to be believed, the work done by the laborers related to work to
the real property that served no benefit to Mrs. Mettetal.

It was evident from the testimony [sic] Dr. Mettetal and his
witnesses that Dr. Mettetal set upon a course to do as many improvements
to the real property that he could accomplish before his mother‟s death. He
was using money that was either going to be required for the use of her
medical needs and upkeep or upon her death would be subject to a division
among heirs to which he only partially shared in the money. It was Dr.
Mettetal‟s plan to use his mother‟s money to improve the real property and
grounds which benefit would exclusive [sic] accrue to him given his
mother‟s Will. In her condition, she derived no benefit from these
expenditures, but they did benefit Dr. Mettetal‟s efforts to improve the
property for his anticipated benefit. Plaintiff is entitled to recover the entire
$16,360 from Dr. Mettetal.

Moving from the cash expenditures to various disputed expenditures
by check, the Court finds that Dr. Mettetal also paid attorney Olen Haynes
for legal fees incurred related to Dr. Mettetal‟s dispute with
BlueCross/BlueShield of Tennessee. These funds belonged to the estate of
Mrs. Mettetal, and these expenditures were not incurred for the benefit of
Mrs. Mettetal. The check expenditure to the American Arbitration
Association for $2,750.00 and the check to Olen Haynes, attorney, for
$3,000.00 written on Mattie Mettetal‟s account on December 22, 2009,
relate to Dr. Mettetal‟s dispute with Blue Cross Blue Shield of Tennessee.
They do not relate to the needs of Mrs. Mettetal after her stroke. Related to
these expenditures, Plaintiff shall recover an additional $5,750.00 from Dr.
Mettetal.

The final category of disputed amounts relate to certain disputed
credit card charges. The Court finds that $621.18 of the credit card charges
shown on Exhibit 1 of the Special Master‟s Report should be attributed to
Dr. Ray Mettetal. These include $98.53 to Michael‟s for diploma mats,
$37.21 to Bed, Bath and Beyond for a shoe rack, $169.70 to Advance Auto
for repairs to Dr. Mettetal‟s Toyota, $184.91 to Advance for Toyota repairs,
$63.50 to Advance Auto for Toyota repairs and $67.33 to Michaels [sic]
frame for a Maxwell print. These were for the benefit of Dr. Mettetal, and
these expenses accrued no benefit to Mrs. Mettetal. These were living
expenses of Dr. Mettetal, and they were of no benefit to Mrs. Mettetal.
20
Plaintiff is entitled to recover the $621.18 from Dr. Mettetal.

SPECIAL MASTER‟S FEE

Fees of $4,348.75 have been incurred for the work of the Special
Master. These fees were reasonable and necessary, and they were ultimately
incurred as a result of the estate successfully proving its case against Dr.
Mettetal. The efforts of the Special Master identified numerous financial
transactions that represented Dr. Mettetal‟s breach of his fiduciary duties to
his mother as her attorney-in-fact. Although Dr. Mettetal acknowledges
that $56,092.63 in expenditures accrued to his benefit, he has persisted in
asserting throughout these proceedings that this sum represents a continuing
course of gifts that continued after his mother‟s incapacitation. Dr.
Mettetal never acknowledged he owed anything to his mother‟s estate, nor
has he acknowledged any breach of duty of loyalty to his mother. To the
contrary he unsuccessfully sought reimbursement of $40,057.35 from his
mother‟s estate for bills incurred after his mother‟s death. He further
attempted to revoke and redistribute the interest of Yvonne M. Rayburn, a
beneficiary in the estate of Mattie L. Mettetal. The fees of the Special
Master are taxed to Dr. Mettetal.

Dr. Mettetal and his Corporation appeal the Trial Court‟s judgment to this Court.

Discussion

Although not stated exactly as such, Dr. Mettetal and his Corporation raise one
issue on appeal: whether the Trial Court erred in finding that Dr. Mettetal improperly
converted Deceased‟s funds for his own benefit and the benefit of his Corporation despite
Dr. Mettetal‟s and the Corporation‟s assertion that the money represented gifts pursuant
to Tenn. Code Ann. § 34-6-110.

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).

With regard to the duties that an attorney-in-fact owes to the grantor of the power
of attorney this Court has explained:

21
Our courts have long held that the execution of a power of attorney
establishes a confidential or fiduciary relationship between the attorney in
fact and the grantor of the power. Matlock v. Simpson, 902 S.W.2d 384
(Tenn. 1995); Mitchell v. Smith, 779 S.W.2d 384 (Tenn. Ct. App. 1989);
Askew v. Askew, 619 S.W.2d 384 (Tenn. Ct. App. 1981); Black v.
Pettigrew, 38 Tenn. App. 1, 270 S.W.2d 196 (1953). Our Supreme Court
has recently announced a narrow exception to this rule. In Childress v.
Currie, 74 S.W.3d 324 (Tenn. 2002), the Court ruled that if the power of
attorney is executed, but not exercised, a confidential relationship does not
arise as a matter of law. This exception clearly does not apply in the
present case.

Numerous opinions of our appellate courts have stated that the
dominant party in a fiduciary relationship is obligated to deal with the
property of the other party in the utmost good faith. Estate of Doyle v.
Hunt, 60 S.W.3d 838 (Tenn. Ct. App. 2001); Alexander v. Inman, 974
S.W.2d 689 (Tenn. 1998); McFarlin v. McFarlin, 785 S.W.2d 367 (Tenn.
Ct. App. 1989). Other cases have spoken of the duties of loyalty and
honesty as also being a part of a fiduciary‟s obligation. Roberts v. Iddins,
797 S.W.2d 615 (Tenn. Ct. App. 1990); Knox–Tenn Rental Co. v. Jenkins
Ins., Inc., 755 S.W.2d 33 (Tenn. 1988).

Finally, the existence of a confidential relationship, combined with a
gift or benefit to the dominant party, creates a presumption of undue
influence, and of the invalidity of the transaction. Fell v. Rambo, 36
S.W.3d 837 (Tenn. Ct. App. 2000). This presumption is not conclusive,
however, for it may be rebutted by clear and convincing evidence of the
fairness of the transaction. Hager v. Fitzgerald, 934 S.W.2d 668 (Tenn. Ct.
App. 1996); Matlock v. Simpson, 902 S.W.2d 384 (Tenn. 1995); Bills v.
Lindsay, 909 S.W.2d 434 (Tenn. Ct. App. 1993); Gordon v. Thornton, 584
S.W.2d 655 (Tenn. Ct. App. 1979).

Martin v. Moore, 109 S.W.3d 305, 309-10 (Tenn. Ct. App. 2003).

Dr. Mettetal and his Corporation argue in their brief on appeal that there was no
conversion of Deceased‟s funds because the money at issue constituted gifts under the
Power of Attorney pursuant to Tenn. Code Ann. § 34-6-110. As pertinent to this appeal,
Tenn. Code Ann. § 34-6-110 provides:

34-6-110. Gifts under power of attorney.

22
(a) If any power of attorney or other writing:
(1) Authorizes an attorney-in-fact or other agent to do, execute or
perform any act that the principal might or could do; or
(2) Evidences the principal‟s intent to give the attorney-in-fact or
agent full power to handle the principal‟s affairs or to deal with the
principal‟s property;
then the attorney-in-fact or agent shall have the power and authority to
make gifts, in any amount, of any of the principal‟s property, to any
individuals, or to organizations described in §§ 170(c) and 2522(a) of the
Internal Revenue Code (26 U.S.C. §§ 170 and 2522), or corresponding
future provisions of the federal tax law, or both, in accordance with the
principal‟s personal history of making or joining in the making of lifetime
gifts. This section shall not in any way limit the right or power of any
principal, by express words in the power of attorney or other writing, to
authorize, or limit the authority of, any attorney-in-fact or other agent to
make gifts of the principal‟s property.

Tenn. Code Ann. § 34-6-110(a) (2015).

We need not reiterate in full the Trial Court‟s detailed and specific findings, which
are quoted more fully above. We note, however, that with regard to the arguments made
by Dr. Mettetal and his Corporation with regard to gifting the Trial Court specifically
found and held:

The Court rejected Defendants‟ arguments that payments for their benefit
represented a continued course of gifting from Mrs. Mettetal upon Dr.
Mettetal.

***

The testimony and evidence leads the Court to the conclusion that
Mrs. Mettetal financially supported her son and spent money in an effort
for him to regain his medical license for the purposes of his becoming
economically productive and financially self-sufficient. Without his
medical license and work as a physician, Dr. Mettetal could not achieve his
full career potential. After the death of her husband and for approximately
five years prior to her stroke, Mrs. Mettetal endeavored to support Dr.
Mettetal and to help him regain his medical license. In return, Dr. Mettetal
lived with his mother and looked after her. It was understandable that she
would bestow financially upon her son under these circumstances.

23
Dr. Mettetal asserts that he simply continued to fulfill his mother‟s
personal history of making lifetime gifts to him, and this is why he
breached no duty of loyalty to his mother. However, there are two
occassions [sic] that mark significant developments for Mrs. Mettetal and
her son, and these events defeat Defendants‟ assertion that Dr. Mettetal was
entitled to benefit from a continued course of gift-giving by Mrs. Mettetal,
implemented by him as her attorney-in-fact. Circumstances changed in
2007, and the history of support and gift-giving ended in 2007. The Court
reaches this conclusion because of these two significant milestones.

The first milestone occurred in July 2007, as Dr. Mettetal achieved
licensures by this date from the Commonwealth of Virginia and the State of
Tennessee to practice medicine. Based on the testimony and evidence at
trial, the Court finds that Mrs. Mettetal had the expectation in July 2007 that
her son would no longer require her financial assistance and that she now
expected him to repay her for the financial investment she had made toward
his professional rehabilitation. In short, the testimony and evidence at the
November 25, 2013, trial convinces the Court that Mrs. Mettetal‟s
sponsorship of Dr. Mettetal had succeeded by July 2007, and she now
expected her son to repay her for her efforts. Mrs. Mettetal‟s gift-giving or
support for her son had a purpose - to enable him to rejoin the medical
community.

The Court finds that Mrs. Mettetal did not intend to continue to
support her son after he had acquired medical licenses from Tennessee and
Virginia. Her purpose was not to support her son indefinitely until her
money and assets had dissipated. Her purpose in providing support and her
course of gift-giving to her son ended immediately prior to her stroke.

The second milestone occurred in August 2007 when Mrs. Mettetal
suffered her stroke. The Court finds that Dr. Mettetal‟s contention that his
spending of his mother‟s money was a continued extension of his mother‟s
pattern of gift-giving is unpersuasive. She had fulfilled her perceived
obligation to her son, and Dr. Mettetal knew his mother‟s plan for his
professional rehabilitation was to allow him to work again and,
significantly, he knew her testamentary intent. With his regaining of his
medical licenses and her debilitating stroke, the needs of the mother and
son reversed. He now had the ability to support himself, and her stroke
meant she needed to rely on her money and her son‟s loyalty given her
fragile and debilitated medical condition.

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The Trial Court further found that Dr. Mettetal was aware that he would be the
sole beneficiary of Deceased‟s real property when she died and that “Dr. Mettetal
intended to use as much of his mother‟s money as possible to gain the maximum
financial advantage for himself to the detriment of his mother and the residual
beneficiaries of his mother‟s Last Will and Testament.” The evidence in the record on
appeal, as discussed more fully above, does not preponderate against these findings made
by the Trial Court.

The evidence in the record on appeal shows, as found by the Trial Court, that after
her stroke Deceased never returned to her home and, therefore, was unable to enjoy the
benefit of any of the numerous improvements made to her property by Dr. Mettetal. The
evidence shows that Dr. Mettetal used Deceased‟s money for such things as a door,
hinges, and lighting in a barn that was not even in use at that time; for stump grinding and
tree work at the property to which Deceased never returned; for repairs to a playhouse;
and for framing a diploma and art work, which then hung in the house, to which
Deceased never was able to return. The Trial Court found that none of these expenditures
had any benefit to Deceased. The evidence does not preponderate against this finding.

Furthermore, the Trial Court found that Dr. Mettetal‟s use of Deceased‟s money in
the manner it was used was “shocking in light of his mother‟s compromised health,
physical immobility, and financial need.” It stretches credibility to think that Deceased
intended to gift money to Dr. Mettetal to use in the manner in which he did when that
money could have been, and should have been, used to provide for Deceased‟s immediate
physical care and comfort after she suffered the stroke. The Trial Court said it best when
it found that Dr. Mettetal instead “made appalling arrangements” consisting of “cheap
care” when “Dr. Mettetal sent his mother away from her home to live her last days on a
stranger‟s sofa.” It is difficult, if not impossible, even to imagine an argument that this
somehow was Dr. Mettetal dealing with Deceased‟s property in the utmost good faith as
was required of him.

The evidence in the record on appeal simply does not preponderate against the
Trial Court‟s findings that Dr. Mettetal improperly converted Deceased‟s funds for his
own benefit and the benefit of his Corporation and that Dr. Mettetal and his Corporation
failed to prove that the money at issue represented gifts under the Power of Attorney
pursuant to Tenn. Code Ann. § 34-6-110. We, therefore, affirm the Trial Court‟s
November 14, 2014 Final Judgment.

The Administrator raises an issue on appeal requesting an award of attorney‟s fees
and expenses on appeal. While the Administrator makes an argument in his brief on
appeal that such an award would be appropriate, he cites us to no legal authority
whatsoever in support of his argument. It is not the role of this Court to do research for
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the parties or to provide support for issues or arguments raised by the parties. As the
Administrator‟s argument on this issue cites us to no legal authority as required, we
decline to award the Administrator attorney‟s fees and expenses on appeal.

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, Ray W. Mettetal, Jr., M.D. and Ray W. Mettetal, Jr., M.D., Inc., and their
surety.

_________________________________
D. MICHAEL SWINEY, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3165186. Public record. Not legal advice.