In Re Estate of Charles E. Caldwell

03/07/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 18, 2018 Session

IN RE ESTATE OF CHARLES E. CALDWELL

Appeal from the Circuit Court for Bradley County

No. V-15-396 J. Michael Sharp, Judge

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No. E2017-02297-COA-R3-CV

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This appeal involves a will contest. The decedent’s son alleges that his father “was of

unsound mind, without sufficient degree of mental capacity and/or was mentally

incompetent to make a valid will” and “was unduly influenced . . . in all circumstances

surrounding and including the execution of the purported Last Will and Testament” by

his daughter. The trial court found that the decedent had the requisite testamentary

capacity to execute the November 2012 will, no confidential relationship existed between

the Decedent and his daughter that triggered a presumption of undue influence, and the

will was not a product of undue influence. The trial court further found that, in the

alternative, the daughter rebutted any presumption of undue influence. The plaintiff

appeals. We affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, and KENNY ARMSTRONG, JJ., joined.

Joshua H. Jenne, Cleveland, Tennessee, for the appellant, Eddie Dean Caldwell.

Ginger W. Buchanan, Cleveland, Tennessee, for the appellee, Maxie Merlene Jones.

OPINION

I. BACKGROUND

Charles Edwin Caldwell (“Decedent”), born on July 5, 1928, executed a will on

November 5, 2012, (“the November 2012 Will”) that is the subject of this appeal. The

November 2012 Will bequeathed his personal and real property to his daughter, Maxie

Merlene Jones (“Daughter”).

Decedent was married to Juanita Caldwell (“Wife”) from 1961 until her death in

January 2003. Decedent and Wife had one child during their marriage, Eddie Dean

Caldwell (“Son”). Before this marriage, however, Decedent fathered a child with

Tommie Millard, who was married to Tom Millard. Because of the sensitive matter of

the nature of her birth, Daughter did not know that she was Decedent’s biological

daughter until 1993 when she was approximately 35 years old; until this time, she

believed Mr. Millard was her father. Out of love and respect for Mr. Millard, the man

who raised her, Daughter chose not to inform Mr. Millard about Decedent. Son, raised as

the only child of Decedent and Wife, likewise did not learn that Daughter was his half-

sister until after the deaths of Mr. Millard and Wife, at which time Daughter and

Decedent began to have a relationship as father and child. As of 2008, Daughter began

frequently visiting Decedent at his home, driving him to various medical appointments

and picking up his prescriptions. Son and Daughter also began to have a sibling

relationship. The two played pool together on numerous occasions. Testimony revealed

that it seemed as if Daughter was always a part of the family.

Decedent’s brother had lost his life in an accident, and one of the children who

survived the brother, Timothy Caldwell (“Nephew”), moved onto Decedent’s property

and lived in a trailer on the outskirts of the farm at 1652 No Pone Road, Decedent’s

family homeplace. Decedent’s first will, executed in September 1999 (“the September

1999 Will”) included both Son and Nephew as beneficiaries.1 Other beneficiaries

included Wife and Decedent’s remaining nieces and nephews; Daughter,

unacknowledged at the time, was not listed as a beneficiary. Although there was

testimony regarding the existence of other wills between the September 1999 Will and

the November 2012 Will, Son, as well as Daughter, had conversations with Decedent

about the need for a new will.

In late September or early October 2012, Decedent experienced a medical episode

that was later determined to be a stroke. Decedent apparently suffered a similar episode

in August 2012. Decedent was discharged from the hospital on October 5, 2012. At this

time, Son lived with his father at the family farm. Daughter also visited many times a

week. Both Daughter and Son were caretakers to Decedent during his recovery. Son

worked nights and would care for Decedent and do farm work during the day, while

Daughter stopped at the residence to clean and cook meals for Decedent on her way to

her home from her job. As a result of the stroke, Decedent suffered some physical

impairments: his speech was slowed and the use of his right arm and hand was

debilitated. Decedent’s speech eventually improved, but he did not regain full use of his

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Son testified that he helped Decedent maintain the 120 acres of farm property and the

cattle operation.

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right hand before his death. Decedent placed Daughter’s name on his bank account in

order that she could write checks on his behalf.

Both before and after the strokes, Decedent was regarded as a person with

independent will who could talk to anyone like an old friend. As a result, Decedent

spoke with several persons about his intentions regarding the disposition of his property

after his death. The record reveals that Decedent wished to keep the property on No Pone

Road in the family and wanted Son and Nephew to always have a place to live. Decedent

also desired to make amends of sorts to Daughter for not playing a role in the first 35

years of her life.

On November 5, 2012, Decedent executed the November 2012 Will, the subject of

this suit, in which he bequeathed his property to Daughter and disinherited Son. During

the same appointment, Decedent also executed a durable power of attorney in which

Daughter was named attorney-in-fact. Daughter scheduled the appointment for Decedent

and drove him to the initial meeting with Andrew Morgan, the attorney who drafted the

November 2012 Will. Mr. Morgan interviewed Decedent in private regarding the nature

and extent of his property and to ascertain his intentions and desire for the property upon

his death. In his testimony, Mr. Morgan acknowledged that Decedent’s speech was

slowed to a point where the interview took longer than usual. Despite the slowness of the

responses, however, Mr. Morgan observed that their content and quality raised no

concerns about Decedent’s mental capacity. Daughter was not present for this part of the

interview. The November 2012 Will was witnessed by Athena Pendergrass and an

additional employee of Mr. Morgan’s firm and notarized during the same appointment.

Twenty-three days later, Mr. Morgan prepared a letter for Decedent and Daughter to

obtain additional signatures from witnesses who would attest that Decedent was

competent. Daughter kept the letter and the November 2012 Will at her house.

Decedent subsequently returned to Mr. Morgan on various occasions. In January

2013, Mr. Morgan created a quitclaim deed for 1652 No Pone Road by which Decedent

deeded his interest in his property to Daughter. Later, Decedent visited Mr. Morgan for

advice on how to reinstate his right to own a firearm. Nothing in these interviews gave

Mr. Morgan any cause to be concerned about Decedent’s mental capacity.

Following the death of Decedent on April 6, 2015, Son initially submitted for

probate the September 1999 Will and was appointed Personal Representative and granted

Letters Testamentary. Son immediately initiated suit against Daughter in which he cited

causes of action predicated on conversion, fraud, misrepresentation and deceit, unjust

enrichment, and breach of fiduciary duty. He sought punitive damages and injunctive

relief, and an ex parte restraining order to prohibit Daughter from taking any action

involving the estate’s assets was entered the same day. Daughter, upon being served with

process in the aforementioned suit, submitted the November 2012 Will for probate and

was designated Personal Representative. Shortly thereafter, Son commenced this action

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to contest the November 2012 Will. After a three-day non-jury trial held on August 22-

24, 2017, the trial court found that Decedent had requisite testamentary capacity and that

the November 2012 Will was not a product of undue influence. Appellant filed a timely

appeal.

II. ISSUES

We consolidate and restate the issues raised on appeal by Son as follows:

A. Whether the Decedent possessed the requisite

testamentary capacity to execute the November 2012 Will;

B. Whether there existed a confidential relationship

between Decedent and Daughter;

C. Whether the November 2012 Will was the product of

undue influence; and

D. Whether the trial court erred in using a clear and

convincing evidence standard in regard to its finding of no

confidential relationship.

III. STANDARD OF REVIEW

In this will contest case tried without a jury, we review the record in regard to the

trial court’s determinations of facts de novo with a presumption of correctness, unless the

evidence preponderates to the contrary. Tenn. R. App. P. 13(d); In re Estate of Price,

273 S.W.3d 113, 119 (Tenn. Ct. App. 2008). The trial court’s conclusions of law,

however, are subject to de novo review with no presumption of correctness. Id.

Additionally, “[w]hen a trial court has seen and heard witnesses, especially where issues

of credibility and weight of oral testimony are involved, considerable deference must be

accorded to the trial court’s factual findings.” Id. (citing Seals v. England/Corsair

Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)).

IV. DISCUSSION

A.

We have had numerous occasions to address the issues inherent in a lack of

testamentary capacity. Our Supreme Court has concisely stated the following in regard to

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testamentary capacity:

In a will contest, a properly executed will may be challenged

on a theory that the decedent’s mind was not “sufficiently

sound to enable him or her to know and understand the force

and consequence of the act of making the will” at the time the

will was executed. In re Estate of Elam, 738 S.W.2d 169,

171-72 (Tenn. 1987). As this Court has said:

The testator must have an intelligent consciousness of

the nature and effect of the act, a knowledge of the

property possessed and an understanding of the

disposition to be made. While evidence regarding

factors such as physical weakness or disease, old age,

blunt perception or failing mind and memory is

admissible on the issue of testamentary capacity, it is

not conclusive and the testator is not thereby rendered

incompetent if her mind is sufficiently sound to enable

her to know and understand what she is doing. Id.

(citations omitted).

Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (quoting In re Estate of Elam, 738

S.W.2d 169, 171-72 (Tenn. 1987)).

The trial court made similar observations, citing In re Estate of Elam and In re

Estate of Smallman, 398 S.W.3d 134 (Tenn. 2013):

The law requires that the testator’s mind, at the time the will

is executed, . . . be sufficiently sound to enable him or her to

know and understand the force and consequence of the act of

making the will. The testator must have an intelligent

consciousness of the nature and effort of the act, a knowledge

of the property possessed and an understanding of the

disposition to be made.

A will may be challenged on the theory that at the time of the

will’s execution the testator lacked sufficient mental capacity.

It is . . . the time of the will’s execution that is the proper

point of focus in assessing testamentary capacity. While

proof of a testator’s mental capacity before and after making

the will, if not too remote in point of time may be received as

bearing upon that question [of testamentary capacity,]” the

mental condition of the testator at the very time of executing

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the will is the only point of inquiry. While evidence

regarding factors such as… failing mind and memory is

admissible on the issue of testamentary capacity, it is not

conclusive and the testator is not thereby rendered

incompetent if her mind is sufficiently sound to enable her to

know and understand what she is doing.

(Internal citations omitted.).

In the instant case, there was significant testimony at trial about the competence of

Decedent both before and after the strokes he suffered approximately a month before the

execution of the November 2012 Will. Of the twenty-three witnesses, only Son

questioned the competence of Decedent. The remaining witnesses testified that Decedent

was competent and of sound mind as well as independent, strong-willed, and prone to

speak his mind. Mr. Morgan testified extensively to the best practices he employs when

creating a will for a client. As to Decedent, Mr. Morgan interviewed him individually

and out of the presence of Daughter for four to five hours throughout multiple visits and

confirmed the desires and intentions of Decedent regarding his estate, even his decision

to omit Son as a beneficiary. In its final order, the trial court noted the following

regarding Mr. Morgan’s testimony:

[Decedent] discussed why he was leaving his son Eddie out

of his will. [Decedent] specifically talked about Eddie and

his prior legal troubles. [Decedent] informed Mr. Morgan

about the monies he had to spend on behalf of Eddie to pay

for his legal fees, fines, child support arrearages, as well as

other legal related expenses that Eddie had accrued. Mr.

Morgan questioned [Decedent] about not leaving anything to

his son Eddie, and [Decedent]’s answer was always the same.

[Decedent] stated that he had taken care of Eddie’s legal

problems, and the money he had paid on Eddie’s behalf was,

in his opinion, enough. . . . [Decedent] informed Mr. Morgan

that he was worried that his son, Eddie, might get the real

estate and sell it due to his outstanding legal issues and/or his

lifestyle issues. [Decedent] wanted to be sure that his real

estate was not used to pay for Eddie’s indebtedness and his

financial habits and/or financial instability. Because of these

concerns, [Decedent] wanted to put the farm in his daughter’s

name. Furthermore, [Decedent] informed Mr. Morgan that he

wanted to be sure that his daughter was taken care of. The

court finds Andrew Morgan to be a very credible witness.

Further, Mr. Morgan testified that Decedent knew the extent of his real property.

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Specifically, Mr. Morgan confirmed Decedent’s oral statements, without reference to any

notes, that his real property was a very specific number of acres. Furthermore, both Mr.

Morgan and Ms. Pendergrass, a witness to the will, testified that Decedent was of the

required mental capacity and of sound mind during the execution of the November 2012

Will.

The evidence in the record on appeal shows that Decedent suffered at least one

stroke within two to three months before the execution of the November 2012 Will.

However, the record also reveals that the strokes suffered by Decedent did not cause him

to suffer any significant diminishment of mental capacity. Although the record indicates

that Decedent suffered some physical impairments after the strokes prior to his execution

of the November 2012 Will, the necessary inquiry is whether any impairments affected

Decedent’s mental capacity. According to the testimony of twenty-two witnesses,

Decedent did not suffer any noticeable loss of mental capacity due to the strokes. It is

noteworthy that Decedent made a quick recovery with only minor impairments to his

speech and arm movements and continued his work on the farm shortly after the strokes.

Son also advances the argument that his father’s dementia diagnosis disqualifies

Decedent from having the capacity to execute a will. However, most of the instances of

questionable mental state shown in the record were too remote in time to be dispositive of

the issues in this case. Our inquiry requires that “the mental condition of the testator at

the very time of executing the will [be] the only point of inquiry.” In re Estate of

Smallman, 398 S.W.3d at 159. Further, Son contends that the trial court should have

relied on the expert testimony of Dr. Luther Frank Chandler, an internal medicine

physician whose opinion regarding Decedent was based solely on a review of medical

records. Despite the trial court admitting the deposition testimony of Dr. Chandler into

evidence, it gave it little, if any, weight. We defer to the trial court’s determination of

credibility and weight given to this evidence.

Based on the testimony of Mr. Morgan, Ms. Pendergrass, and a host of other

witnesses, we find that a preponderance of the evidence supports the trial court’s

determination that Decedent was of sound mind and had the required mental capacity to

execute the November 2012 Will.

B. & C.

We now turn to the primary inquiry at trial: whether the November 2012 Will was

a product of undue influence. A will may be invalidated when that will was a product of

undue influence. As our Supreme Court has explained:

[A] will may be challenged on the basis that the decedent was

subject to the undue influence of another in executing the

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will. In Tennessee, for example, where there is a

“confidential relationship, followed by a transaction wherein

the dominant party receives a benefit from the other party, a

presumption of undue influence arises, that may be rebutted

only by clear and convincing evidence of the fairness of the

transaction.” Matlock v. Simpson, 902 S.W.2d 384, 386

(Tenn. 1995) (citations omitted). A confidential relationship

is any relationship which gives one person dominion and

control over another. See Mitchell v. Smith, 779 S.W.2d 384,

389 (Tenn. Ct. App. 1989).

The burden of proof regarding a confidential relationship

rests upon the party claiming the existence of such a

relationship. See Brown v. Weik, 725 S.W.2d 938, 945 (Tenn.

Ct. App. 1983). Once a confidential relationship has been

shown and a presumption of undue influence arises, the

burden shifts to the dominant party to rebut the presumption

by proving the fairness of the transaction by clear and

convincing evidence. Matlock v. Simpson, 902 S.W.2d at

386; see also Gordon v. Thornton, 584 S.W.2d 655, 658

(Tenn. Ct. App. 1979). To prove the fairness of the

transaction, the dominant party may show that the weaker

party received independent advice before engaging in the

transaction that benefitted the dominant party. See Hogan v.

Cooper, 619 S.W.2d 516, 519 (Tenn. 1981); see also

Richmond v. Christian, 555 S.W.2d 105, 107-08 (Tenn. 1977)

(proof that the donor received independent advice respecting

the consequences and advisability of the gift) (citations

omitted).

Childress, 74 S.W.3d at 328.

Thus, the first question before us is whether a confidential relationship existed

between Decedent and Daughter. As this court explained in In re Estate of Dukes:

Confidential relationships can assume a variety of forms, and

thus the courts have been hesitant to define precisely what a

confidential relationship is. Robinson v. Robinson, 517

S.W.2d 202, 206 (Tenn. Ct. App. 1974). In general terms, it

is any relationship which gives one person dominion and

control over another. Kelly v. Allen, 558 S.W.2d 845, 848

(Tenn. 1977); Turner v. Leathers, 191 Tenn. 292, 298, 232

S.W.2d 269, 271 (1950); Roberts v. Chase, 25 Tenn. App.

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636, 650, 166 S.W.2d 641, 650 (1942). It is not merely a

relationship of mutual trust and confidence, but rather it is

one

where confidence is placed by one in the other and the

recipient of that confidence is the dominant personality,

with ability, because of that confidence, to influence and

exercise dominion and control over the weaker or

dominated party.

Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App.

1989) (quoting Iacometti v. Frassinelli, 494 S.W.2d 496, 499

(Tenn. Ct. App. 1973)). “A normal relationship between a

mentally competent parent and an adult child is not per se a

confidential relationship and it raises no presumption of

invalidity of the transaction.” Bills v. Lindsay, 909 S.W.2d

434, 440 (Tenn. Ct. App. 1993).

In re Estate of Dukes, No. E2014-01966-COA-R3-CV, 2015 W.L. 5313547 at *12 (Tenn.

Ct. App. Sep. 11, 2015). Significant to our review is the fact our Supreme Court has

clarified that “[w]hen an unrestricted power of attorney is executed but has not yet been

exercised, . . . there exists no dominion and control and therefore no confidential

relationship based solely on the existence of the power of attorney.” Childress, 74 S.W.

3d at 329.

It is well settled that “[p]roof of the existence of a confidential relationship, by

itself, will not be sufficient to invalidate a will. It is not the relationship that concerns the

courts but rather the abuse of the relationship. Proof of the existence of a confidential

relationship must be coupled with evidence of one or more other suspicious

circumstances that give rise to a presumption of undue influence.” Delapp v. Pratt, 152

S.W. 3d 530, 540 (Tenn. Ct. App. 2004) (quoting In re Estate of Maddox, 60 S.W.3d 84,

89 (Tenn. Ct. App. 2001) (other citations omitted)). This court further explained:

The suspicious circumstances most frequently relied upon to

establish undue influence are: (1) the existence of a

confidential relationship between the testator and the

beneficiary, (2) the testator’s physical or mental deterioration,

and (3) the beneficiary’s active involvement in procuring the

will. Some other recognized suspicious circumstances are:

(1) secrecy concerning the will’s existence; (2) the

testator’s advanced age; (3) the lack of independent

advice in preparing the will; (4) the testator’s illiteracy

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or blindness; (5) the unjust or unnatural nature of the

will’s terms; (6) the testator being in an emotionally

distraught state; (7) discrepancies between the will and

the testator’s expressed intentions; and (8) fraud or

duress directed toward the testator.

The courts have refrained from prescribing the type or

number of suspicious circumstances that will warrant

invalidating a will on the grounds of undue influence.

Delapp, 152 S.W. 3d at 540-41 (citing In re Estate of Maddox, 60 S.W. 3d at 89; Mitchell

v. Smith, 779 S.W.2d at 388 (internal citations omitted).

Therefore, to invalidate a will based on undue influence, the contestant of a will is

required to prove, by a preponderance of the evidence, the existence of a confidential

relationship that was surrounded by suspicious circumstances. See Delapp, 152 S.W. 3d

at 540-41; In re Estate of Maddox, 60 S.W. 3d at 89. Thus, Son must show that a

confidential relationship existed between Decedent and Daughter and that suspicious

circumstances surrounded this relationship. Son does in fact contend that this

confidential relationship existed.

The record before us does not reveal such suspicious circumstances as existed in

the cases relied upon by Son. Both Daughter and Son were caretakers of Decedent after

he was treated for a stroke. Decedent made a quick recovery and was able to continue his

duties on the farm and, by all accounts, was once again independent. Son has not

established that Daughter had opportunities to sequester Decedent in order to exert

dominion and control over him.

Although Daughter had some hand in procuring the appointment for the creation

of the November 2012 Will, her role appears limited to making the appointment and

driving Decedent to the office of Mr. Morgan. Daughter was not present during the

interview Mr. Morgan conducted with Decedent. There was testimony that Decedent

attended further appointments, including appointments with Mr. Morgan and

unscheduled appointments with the Register of Deeds, without Daughter. Despite a

durable power of attorney being executed which named Daughter as the attorney-in-fact

on the same date as the November 2012 Will, the record reveals that this power of

attorney was never exercised. Daughter instead relied on the express permission of

Decedent to write checks on the account to which Decedent had added Daughter’s name.

Son contends that Daughter kept the November 2012 Will secret. However, there

was testimony that Son along with Daughter discussed with Decedent about obtaining a

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new will.2 Further, the record reflects that Daughter and Son had at least one

conversation in the presence of Decedent in which they discussed, or at the very least

alluded to, the existence of the November 2012 Will. Additionally, the fact that Daughter

possessed the November 2012 Will and that it was not kept in Decedent’s safe is not

dispositive under the facts of this case, as both Daughter and Son testified that the

combination to the safe in which Decedent kept his important papers remained the

generic default combination that was possibly shared among family members.

In our view, a preponderance of the evidence supports the determination of the

trial court that Son has not advanced a combination of suspicious circumstances that

would sustain a finding of a confidential relationship between Decedent and Daughter.

The relationship between the two was that of an elderly parent and an adult child. The

relationships between family members and relatives are not by themselves confidential

relationships. Mitchell, 779 S.W.2d at 389 (citing Halle v. Summerfield, 287 S.W.2d 57,

61 (Tenn. 1956)).

Additionally, the November 2012 Will is not inconsistent with the intention of the

Decedent to treat his children equally. There is ample evidence that Decedent regretted

not having any relationship with Daughter until she was 35 years of age and wanted to do

right by her. Whereas Decedent provided Son with financial help on numerous

occasions, there is very little on the record where Decedent provided Daughter with

anything other than naming her the beneficiary under the will and the 2013 quitclaim

deed. There is also evidence that Decedent wished to keep the farm in the family where

Son and Nephew would always have a place to live. As the trial court held in its final

order:

The court finds that [Decedent] had a great deal of trust and

confidence in the defendant [Daughter]. . . . [Decedent]

believed that his son still owed a great deal of money for his

back child support obligation that he had not paid, and he was

concerned that Eddie would sell some or all of the farm to

pay his child support arrearage. . . . [Decedent] also believed

that his son Eddie owed a great deal of money to the IRS for

back taxes. Ultimately, [Decedent] did not believe that Eddie

would be able to keep the farm, nor would he be able to pay

for the maintenance and upkeep of the farm. Because of this,

[Decedent] believed that Eddie would simply sell the farm.

Indeed, Son admitted in his testimony and to others that the farm was his “retirement

2

Interestingly, Son admits in his testimony to the existence of wills other than the

September 1999 Will that Son submitted for probate. Specifically, Son testified to two other

wills but failed to produce proof of the wills at trial.

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plan.” Leaving the property to Daughter, apparently the only one in the family with

resources to pay the taxes, is consistent with Decedent’s desire for the farm.

The testimony of Mr. Morgan, the attorney who prepared the November 2012

Will, is noteworthy on this issue:

I point blank asked [Decedent] why he intended to leave such

a disparate amount, the way he was leaving it, and he said

that Eddie had gotten in some trouble years ago and he spent

a lot of money trying to get Eddie out of it – out of the

trouble, that is – and he just wanted to do right by Maxie.

And I, of course, asked him, you know, has she – I don’t

remember the words I used but I effectively asked if she had

been influencing him in some way and he assured me that she

had not.

The trial court determined that no confidential relationship involving dominion

and control existed between Decedent and Daughter and, therefore, no presumption of

undue influence arose. In the alternative, the trial court held that, even if the presumption

arose, Daughter rebutted the presumption with clear and convincing evidence that

Decedent received independent advice. See In re Estate of Maddox, 60 S.W.3d at 89.

We defer to the trial court’s credibility determinations based upon observation of the

witnesses at trial. The evidence, particularly Mr. Morgan’s and Ms. Pendergrass’s

testimony, supports the determination of the trial court that no confidential relationship

existed between Decedent and Daughter.

D.

The trial court announced that the burden of proof in this matter was by “clear and

convincing evidence.” Son contends, and Daughter agrees, that the trial court erred in

this statement and that the correct standard to prove the existence of a confidential

relationship is by a preponderance of the evidence. We agree that the court’s statement

was in error. However, after reviewing the record de novo, with a presumption of

correctness in regard to findings of fact, we find that the error was harmless and the

record, in its entirety, supports the trial court’s decision in accordance with the

preponderance of the evidence standard.

V. CONCLUSION

For the reasons stated above, we affirm the decision of the trial court. The case is

remanded for such further proceedings as may be necessary. Costs of the appeal are

taxed to the appellant, Eddie Dean Caldwell.

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_________________________________

JOHN W. MCCLARTY, JUDGE

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