defining inquiry notice as the “notice which a plaintiff would have possessed after due investigation”
How later courts described this case
- defining inquiry notice as the “notice which a plaintiff would have possessed after due investigation”
Written by the judges who cited it.
The opinion
07/21/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 11, 2022 Session
TERESA FLETCHER KIDD, ET AL. v. BERNICE LEWIS
Appeal from the Chancery Court for Washington County
No. 19-CV-0759 John C. Rambo, Chancellor
No. E2021-01156-COA-R3-CV
This appeal concerns an alleged conversion of funds. Rebecca Durbin, Teresa Fletcher
Kidd, and Ramona Lewis (“Plaintiffs,” collectively), the adult children of the late Charles
Lewis (“Charlie”), sued Bernice Lewis (“Defendant”), Charlie’s widow, in the Chancery
Court for Washington County (“the Trial Court”).1 Plaintiffs alleged that Defendant
exercised undue influence over Charlie in his later years and converted funds in a bank
account that Charlie had intended for them to have. After a trial, the Trial Court ruled in
favor of Plaintiffs. Defendant appeals, arguing among other things that the three-year
statute of limitations applicable to Plaintiffs’ claim had expired. Defendant also argues
that the Trial Court erred by not awarding her any damages for Plaintiffs’ failure to
maintain Charlie’s house, which Defendant continued to live in pursuant to Charlie’s will.
We hold that Plaintiffs were on constructive notice of their claim against Defendant no
later than October 5, 2009, and thus their lawsuit filed in October 2019 is time-barred. We,
therefore, reverse the judgment of the Trial Court with respect to Plaintiffs’ claim against
Defendant. However, we affirm the Trial Court as to its declination to award Defendant
any damages for Plaintiffs’ failure to maintain Charlie’s house as Plaintiffs owed her no
duty to maintain the house; per Charlie’s will, that was his Estate’s responsibility. We thus
affirm, in part, and reverse, in part, the Trial Court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in Part, and Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
1
Given the familial nature of this dispute, we sometimes use first names for ease of read. We also use first
names when discussing individual Plaintiffs. We intend no disrespect in doing so.
Arthur M. Fowler and Arthur M. Fowler, III, Johnson City, Tennessee, for the appellant,
Bernice Lewis.
David L. Robbins and Barbara A. Malone, Johnson City, Tennessee, for the appellees,
Rebecca Durbin, Teresa Fletcher Kidd, and Ramona Lewis.
OPINION
Background
In February 2017, Charlie Lewis died. He had battled Alzheimer’s Disease and
dementia for a number of years. Defendant is Charlie’s widow. Plaintiffs are Charlie’s
adult children from a prior marriage. Another key figure in the case is Charlie’s brother
and Plaintiffs’ uncle, Don Lewis (“Don”).
In October 2019, Plaintiffs, in their individual capacities, sued Defendant in the
Trial Court. Plaintiffs alleged that Charlie intended for them to receive certain funds from
the 2009 sale of the final remaining lot of Charlie’s Old Lewis Supply property. Plaintiffs
alleged that when Charlie died in February 2017, they discovered that those funds had been
converted by Defendant. In July 2009, Charlie received the proceeds from the sale of his
Old Lewis Supply property, funds which Don deposited into a Greenbank account in
Charlie’s and Defendant’s names. On August 21, 2009, Don, using a “springing” power
of attorney that Charlie had granted him in 2000,2 opened a new account with Charlie
named as the sole owner and Plaintiffs as the payable-on-death beneficiaries. Don
transferred $300,000 from the Greenbank account in Charlie’s and Defendant’s names to
this new account. After Charlie found out what Don had done, he revoked Don’s power
of attorney. Charlie then transferred the balance of the money back into an account in his
and Defendant’s names. Charlie used a portion of the money to purchase an annuity for
$250,000, with Defendant listed as the sole beneficiary.
In response to Plaintiffs’ complaint, Defendant filed an answer and counterclaim.
Defendant asserted defenses such as the three-year statute of limitations applicable to
Plaintiffs’ conversion claim. In her counterclaim, Defendant alleged that Plaintiffs failed
to reimburse her for expenses related to maintaining Charlie’s house, which she was
allowed to keep living in per Charlie’s will. As relevant, Charlie’s will provided: “My
Estate shall be responsible for the payment of the taxes, repairs and insurance.”
2
The document provided that in the event Don failed to or ceased to serve in that capacity, Teresa would
serve as Charlie’s attorney-in-fact, subject to the incapacity requirements specified therein.
-2-
In April 2021, this matter was tried. We recount the pertinent testimony, beginning
with that of Don. Don stated that he and Charlie were very close. He had assisted Charlie
in business matters. Don testified that Defendant would “fuss” at Charlie and did not
handle his having dementia well. In August 2009, in a bid to carry out what he understood
to be Charlie’s wish to look after Plaintiffs, Don used his power of attorney to transfer
some $300,000 from one bank account to another, to be paid on Charlie’s death to
Plaintiffs. Don met with Carl McInturff, Charlie’s lawyer. It was Don’s understanding
that he needed some additional proof of Charlie’s incompetence. The power of attorney
provided, in part: “The principal’s disability or incapacity is proven and is conclusive on
all persons by a writing signed by principal’s usual attending physician signed no more
than sixty (60) days prior to the use of this power.” However, Don did not obtain such a
writing. Don kept extensive notes from the time of the underlying events, which were
entered into evidence at trial. Regarding the transaction at issue, Don testified:
Q. … You met with the plaintiff Teresa Kidd to make plans to move
$300,000 to the money market account, didn’t you?
A. Now, yes, I kept all the girls involved in what was going on. If you’ll
notice on that front page there where it had a bunch of social security
numbers, I had to tell each one of them what I was doing and I had to get
their social security numbers and date of birth and everything to put that in a
money market.
Q. All right. And then on August the 21st you took the power of attorney
you had and you went to the bank and you transferred the money using the
power of attorney, correct?
A. The bank already had a copy of my power of attorney.
***
Q. You found a social worker, Pat Bolton. “She says I already have
everything I need, but to get Charles’s primary care doctor to sign Carl’s
document,” Carl’s letter, correct?
A. Yeah.
Q. Okay. And then she said I would need to go with Charlie to his doctor’s
appointment to get the letter signed.
A. That’s what I just said, that I had to get an appointment and go with him
to see the doctor.
Q. And you didn’t do that.
A. No.
Q. Instead, down at the bottom of that, on August 25th you say, “Don’t know
what to do next. (nothing) (I guess just let it play out[)].” That’s on Page 64
of your notes.
-3-
A. Yes.
Q. What do you mean -- what did you mean by “just let it play out,” sir?
A. Well, I had done everything I could do that I could think of to get to
Charlie’s doctor to get a piece of paper or get it so I could -- the doctor to tell
me what was wrong with Charlie.
Q. Okay.
A. And so I couldn’t get to see the doctor, so I just had to forget it.
Q. Okay. All right. So you just let it play out.
A. I just let it; here we are today.
Q. All right. Now, during all this time in August while you’re transferring
that money, Charlie’s here in Johnson City. He’s in town, isn’t he?
A. Oh, yeah.
Q. All right. And you never told Charlie what you were doing...
A. Oh, yes.
Q. ...until September -- no. Your notes said you told him what you did on
September the 7th.
A. Well, me and Charlie had talked about all this beforehand.
***
Q. All right, sir. Now, if you’ll look on Page 72 of your notes, on October
the 5th you went by -- have you found it? I don’t want to go too fast for you.
It’s October 5, PM. Do you see that?
A. Yeah.
Q. Okay. So you went by the bank on October the 5th...
A. Yeah.
Q. ...and got a copy of Charlie’s bank records.
A. “I went by the bank to check on Charlie’s money market account. He has
changed mailings to his house instead of mine. Banker wanted a registered
copy of POA before they would give me a copy of his accounts.” Okay.
“Came home, got POA papers and went to the courthouse and had it
registered, took it by the bank. Got a copy of accounts...”
Q. Of the accounts.
A. ...“they told me there is no way other than a court order that they can keep
this money in bank without Charlie getting it out.”
Teresa testified, as well. Teresa testified to an October 5, 2009 conversation she
had with her father, as follows:
[O]n the 5th, I got a phone call from Dad. And he would call me sometimes,
like, intermittently during the week, whatever. And so … I answered the
-4-
phone and, you know, he was doing small talk. And then, I mean, I heard
Bernice in the -- in the background yelling at him to “Tell her. Tell her.”
And he said, “I took you and Don off.” I was like, “What?”
I didn’t know what he was talking about because I was so not
expecting that. And so he said, “I took you all off.” And I said, “Do you,
you know, you mean the power of attorney?” And he said yes, and I was
shocked and so we ended the conversation. And that was really the last kind
of significant conversation I had with Dad for awhile and also certainly with
Bernice because, once there was that conflict, then the communication broke
down.
Teresa did not answer definitively when asked if she believed Charlie was
competent in September or October of 2009. Teresa asserted that he was competent “[i]n
some ways,” but that she had “struggled” with the question of his competency. In addition,
Dr. Thomas E. Schacht testified as an expert for Plaintiffs as to Charlie’s declining
condition in his later years.
Defendant also testified. At this juncture, counsel for Defendant moved for
involuntary dismissal, which the Trial Court denied. Defendant then resumed her
testimony. Defendant had entered into a prenuptial agreement with Charlie. She did not
know what happened to the document, nor could she remember its terms. Charlie’s will
provided that Defendant could live in his home after his death. Everything else was left to
Plaintiffs. During the marriage, Defendant worked at a group home for mentally-
challenged people. Regarding Charlie’s mental condition between July and November of
2009, Defendant stated that he “was functioning fairly well. He had some memory loss,
but, at his age, you could expect that.” Defendant stated that Charlie loved their trip
together to Alaska that year. Defendant stated that in 2007, she and Charlie signed off on
joint accounts for both of their checking accounts. When Defendant and Charlie returned
from Alaska, Charlie discovered a transfer had been made out of their account. Defendant
testified:
Q. And, if you look over at Page 856, does it, upper left-hand corner, does it
show what happened to $300,000 of it?
A. It says “Transfer.”
Q. And...
A. And it’s got...
Q. 300,000. Who signed that?
A. Don Lewis, POA.
Q. Okay. So Don Lewis signed that for a POA. Tell me how you all
discovered that and who discovered that, the discrepancy in the bank
statement. Just explain to His Honor what happened.
-5-
A. Charlie usually always got the mail. So this day he got the mail and he
come in and sat down at the bar, opened up his check, and he just had this
expression. He said, “Where is my money?” And I said, “What money?”
He said, “The money on the land.” I said, “I don’t know, you and Don was
the one handling it; I didn’t.” But anyway he was very upset and angry and
mad about that.
So he decided he would go to the bank. So we went over to the bank
in Jonesborough and we spoke to a teller there. I don’t think she was a teller;
she was higher up. But anyway, he talked to her about his money. And he
wanted to know where his money was. And she said that Don Lewis had
come in and transferred the money from that account into another account.
And he said, “What can I do about that?” And she said, “It’s your money;
you can do what you want to.”
Q. And what did he do?
A. He transferred the money.
Q. Did he -- or did he just change the name on the account? Let me show
you a document. If you would turn and look at Page 867, 867.
A. Yes.
Q. And is this the account Don transferred the money to?
A. 4685.
Q. That was the account he transferred the money to. And he transferred it
from what account? Do you remember the number?
A. 2115, I think. I’m not sure.
Q. He transferred it from Account 1219?
A. 1219.
Q. And so this, this account that it was transferred to shows it’s in the name
of [Charlie] Lewis?
A. Yes.
***
Q. And tell me about that meeting and that -- and what happened at that
meeting with Wesley Robbins [Greenbank financial advisor].
A. We went into his office and he -- he gave different options of what Charlie
could do with his money. And Charlie seemed to be right on board. He
talked to him. He was always, when it come to money, he was always right
on top of it, seemed like. And so they figured out what he could do, so he
made his investments. And, excuse me, Wesley asked him was he going to
put my name on the account and I spoke up and said, “No. I don’t want
anybody to think I’m taking his money.” So he said, “What do you want to
do, Charlie?” And Charles says, “I want Bernice taken care of.” And so
-6-
Wesley asked him, said, “Well, did you want to make her the beneficiary?”
And he said yes and that was all there was to it.
Q. Okay. And so Charlie signed the paperwork...
A. Right.
Q. ...and $250,000 of the money...
A. Yes.
Q. ...was put into an annuity.
A. Yes.
Q. And that money is still working in the annuity.
A. Right.
Q. Okay.
A. That’s how we lived for several years and paid caregivers. And that’s
how I still live today, from that.
In September 2021, the Trial Court entered its final order, in which it ruled in favor
of Plaintiffs. The Trial Court found, in relevant part:
2. Statute of Limitations
Plaintiffs’ cause of action is best described as a claim of conversion of
property. The applicable statute of limitations is found at Tennessee Code
Annotated section 28-3-105, the three-year statute of limitations applicable
to “[a]ctions for the detention or conversion of personal property.” The
period of limitations began to run “from the accruing of the cause of action.”
See Tenn. Code Ann. § 28-3-105. The cause of action accrued “when the
plaintiff knew or reasonably should have known that a cause of action
existed.” Stone v. Hinds, 541 S.W.2d 598, 599 (Tenn. Ct. App. 1976).
The issue of accrual of a cause of action is basically a question of fact for the
trier of fact. National Mortg. Co. v. Washington, 744 S.W.2d 574, 580 (Tenn.
App. 1987). Defendant asserts Plaintiffs’ cause of action accrued when the
account was closed and converted to an annuity. All of this occurred in
October 2009. In response, Plaintiffs alleged they were unaware of the
account conversion until after their father’s death on February 22, 2017.
***
In July 2009, property associated with Charlie’s company, Lewis Supply,
was sold. The sale proceeds were deposited by Charlie’s brother, Don Lewis
(Don), on July 29, 2009, to a joint account owned by Charlie and Bernice.
-7-
From which, $69,612.22 was used to pay capital gains taxes, which left
$336,220.24 in the account.
For many years, Don provided financial advice to Charlie. Don understood
from Charlie that he wanted to leave some money for his daughters, so on
August 21, 2009, Don used the power of attorney granted to him from Charlie
to withdraw $300,000 from Charlie’s account and open it into a new account
with only Charlie as the owner with Plaintiffs as payment on death
beneficiaries.
Before Don acted on August 21, 2009, to remove the disputed money from
Charlie and Bernice’s account, he met with Teresa on Aug. 20, to make plans
with her to move the money. Then on Aug. 23, he told Teresa that he had
completed the transaction. Thereafter on Aug. 24, Don met with attorney
Carl Mclnturff, because he wanted a “document” to allow him to go to
Mountain Home—Veterans Administration to talk to Charlie’s doctors. On
Sep. 7, Don told Charlie about the financial transactions concerning the
disputed money.
Don’s actions to move money occurred while Charlie and Defendant
vacationed in Alaska. Upon his return, Charlie learned that his account
balance was $35,492.71.
Charlie decided to close the account. He went to the bank and met with bank
financial officer Wesley Robbins on October 1, 2009. After consulting with
Mr. Robbins again on November 16, 2009, with Bernice present, Charlie
purchased a $250,000 annuity, which funds are the subject of this lawsuit.
He opened a new joint account with Defendant to purchase the annuity.
Plaintiffs were not listed as beneficiaries of this new account. The interest
from the annuity went to a joint checking account used by Charlie and
Bernice.
An important date is October 5, 2009. Don approached bank personnel about
keeping Charlie out of the account that he had established that made
Charlie’s daughters payment on death beneficiaries. Don called Teresa to
tell her about this development. In light of all the circumstances, Teresa and
her sisters were aware that Don lost control of this account, because Don
knew that Charlie had changed the address of the account.
It was the information learned on October 5, 2009, which caused Teresa to
hire an attorney on Oct. 7. However, the change of beneficiaries was beyond
-8-
that which was discoverable by Plaintiffs. Plaintiffs received their
information regarding their father’s finances from Don, and he no longer had
the ability to access banking information regarding the account because of
the POA revocation. Plaintiffs had no access to information regarding their
father’s finances. As a result, Plaintiffs discovered they were no longer
beneficiaries of the long-closed account after their father died, and the
evidence failed to establish they knew the account was closed, that annuities
were purchased with funds from it, that Defendant was now a co-owner, and
they were no longer payment on death beneficiaries.
For these reasons, there was no persuasive evidence the Plaintiffs knew of
the account’s conversion. It is not reasonable to expect Plaintiffs to have
discovered the conversion until after their father’s death. As their claims
were filed within three years of his death, their claims were not time-barred
by the applicable statute of limitations.
***
5. Defendant’s Counterclaim
Defendant asserted a counterclaim for monetary damages for Plaintiffs’
alleged failure to reimburse her for expenditures related to the expenses of
taxes, repairs and insurance for Charlie’s home that Charlie provided Bernice
with the right to live, use and occupy. The evidence and testimony at trial
failed to prove this claim. The counterclaim is dismissed.
6. Conclusion
Plaintiffs are awarded a judgment against Defendant for $250,000. Court
costs are taxed to Defendant.
Defendant timely appealed to this Court.
Discussion
Although not stated exactly as such, Defendant raises the following issues on
appeal: 1) whether the Trial Court erred in finding that the applicable statute of limitations
did not bar Plaintiffs’ claim; 2) whether the Trial Court erred in finding that Defendant
converted her own funds; and 3) whether the Trial Court erred in denying Defendant
reimbursement of expenses related to Charlie’s house.
-9-
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.
2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
We first address whether the Trial Court erred in finding that the applicable statute
of limitations did not bar Plaintiffs’ claim. The parties agree that the statute of limitations
applicable to Plaintiffs’ claim of conversion is three years. See Tenn. Code Ann. § 28-3-
105. Defendant argues that any cause of action for conversion accrued on or before
October 5, 2009. Plaintiffs did not file their lawsuit against Defendant until October of
2019. Thus, according to Defendant, Plaintiffs’ lawsuit is time-barred. Defendant argues
further that the statute of limitations was not tolled. According to Defendant, Plaintiffs
“had facts sufficient to put a reasonable person on notice that they have suffered an injury
as a result of wrongful conduct….” In response, Plaintiffs assert that, as found by the Trial
Court, they did not discover the change in beneficiaries until after Charlie’s death in
February 2017; further, that the evidence failed to establish they knew the account was
closed; that the annuities had been purchased with funds from the account; that Defendant
was co-owner of the annuity; and that Plaintiffs no longer were payable-on-death
beneficiaries.
In Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436 (Tenn.
2012), the Tennessee Supreme Court discussed when a cause of action accrues and when
the statute of limitations begins to run, stating in part:
Under the current discovery rule, a cause of action accrues and the
statute of limitations begins to run not only when the plaintiff has actual
knowledge of a claim, but also when the plaintiff has actual knowledge of
“facts sufficient to put a reasonable person on notice that he [or she] has
suffered an injury as a result of wrongful conduct.” Carvell v. Bottoms, 900
S.W.2d 23, 29 (Tenn. 1995) (quoting Roe v. Jefferson, 875 S.W.2d 653, 657
(Tenn. 1994)). This latter circumstance is variously referred to as
“constructive notice” or “inquiry notice.” Quoting the Iowa Supreme Court,
we have explained that inquiry notice “charges a plaintiff with knowledge of
those facts that a reasonable investigation would have disclosed.... [O]nce a
plaintiff gains information sufficient to alert a reasonable person of the need
to investigate ‘the injury,’ the limitation period begins to run.” Sherrill v.
Souder, 325 S.W.3d [584] at 593 n. 7 [(Tenn. 2010)] (quoting Rathje v.
Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008)); see also Diamond v.
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Davis, 680 A.2d 364, 372 (D.C. 1996) (defining inquiry notice as the “notice
which a plaintiff would have possessed after due investigation”).
Redwing, 363 S.W.3d at 459 (footnotes omitted).
Don kept extensive notes, as the record reflects. Don’s notes reveal that on October
5, 2009, he went to the bank and got “cop[ie]s of acc[oun]ts.” One such account was a
bank statement from September 29, 2009 showing that Plaintiffs’ account had been
changed from “Charles R Lewis, POD…” to “Charles R Lewis, Bernice S Lewis, POD….”
On October 28, 2009, Don and Teresa consulted an attorney. When questioned at trial
about moving $300,000 to the money market account, Don testified that he “kept all the
girls involved in what was going on.” Don thus had a document reflecting that Defendant
had been named POD on the account; he kept Plaintiffs informed on his financial dealings
for Charlie concerning them; and he and Teresa consulted a lawyer about the next steps to
take. Despite these facts, Plaintiffs waited until October 2019 to sue Defendant.
The Trial Court found Don to be a “highly credible witness” who kept “helpful
notes.” A trial court’s credibility determination is entitled to considerable deference, and
it will not be overturned on appeal absent clear and convincing evidence to the contrary.
Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014). We do not disturb the Trial Court’s
assessment of Don’s credibility as we find no such clear and convincing evidence to the
contrary in this record. Nevertheless, even crediting Don’s testimony, the evidence
preponderates against the Trial Court’s finding that “the change of beneficiaries was
beyond that which was discoverable by Plaintiffs.” On October 5, 2009, the change of
beneficiaries was, in fact, discoverable; Don had a document reflecting the change. While
Don is not a party to the underlying lawsuit, Don and Plaintiffs coordinated closely on their
activities regarding Charlie’s money. As Don stated at trial, he “kept [Plaintiffs] involved
in what was going on.” Moreover, a lack of actual knowledge on Plaintiffs’ part of the
change in payable-on-death beneficiary is not dispositive. The salient point is that the
change was discoverable by Plaintiffs upon due investigation. For example, while nothing
in the record indicates that Plaintiffs simply asked their father about a change of
beneficiaries, they certainly could have. Under the modern discovery rule as articulated
by our Supreme Court in Redwing, Plaintiffs were on constructive notice of their claim by
October 5, 2009.
The statute of limitations on Plaintiffs’ conversion claim against Defendant began
to run no later than October 5, 2009. It was incumbent upon Plaintiffs to act within the
three-year limitations period if they wished to pursue their claim; respectfully, they were
not entitled to “just let it play out.” They consulted an attorney and still chose not to act
within the limitations period. The limitations period expired after October 6, 2012.
Plaintiffs filed their lawsuit in October of 2019, well beyond the expiration of the three-
-11-
year statute of limitations. Plaintiffs have not asserted a tolling theory that would have
served to toll the statute of limitations. We, therefore, reverse the Trial Court on this issue
and hold that Plaintiffs’ conversion claim against Defendant is time-barred.3
The final issue we address is whether the Trial Court erred in denying Defendant
reimbursement of expenses related to Charlie’s house. Defendant sought $25,430.77 in
such expenses. In their brief, Plaintiffs point out that Charlie’s will provides that his
Estate—which is insolvent—is responsible for maintaining the house, not them. Even still,
Defendant cites as authority supporting her position the case of Watson v. Payne, 359
S.W.3d 166 (Tenn. Ct. App. 2011), a car accident case in which this Court found no
material evidence to support the jury’s award of zero damages. Id. at 170-71. Watson is
inapposite. Plaintiffs owed no duty to Defendant to maintain Charlie’s house. Under
Charlie’s will, maintenance of his house was the responsibility of his Estate, not Plaintiffs.
This issue is without merit.
In sum, we affirm the Trial Court in its declination to award Defendant any damages
for Plaintiffs’ failure to maintain Charlie’s house. However, we reverse the Trial Court
with respect to the statute of limitations and hold that Plaintiffs’ conversion claim against
Defendant is time-barred as they were on constructive notice of their claim no later than
October 5, 2009 and only filed suit in October 2019, well beyond the expiration of the
applicable three-year statute of limitations.
Conclusion
The judgment of the Trial Court is affirmed, in part, and reversed, in part, and this
cause is remanded to the Trial Court for collection of the costs below. The costs on appeal
are assessed against the Appellees, Rebecca Durbin, Teresa Fletcher Kidd, and Ramona
Lewis.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
3
Given our holding as to this issue, Defendant’s second issue of whether the Trial Court erred in finding
that she converted her own funds is pretermitted. We do note that Defendant’s uncontradicted testimony
was that the annuity was “how [she and Charlie] lived for several years and paid caregivers.” Given the
evidence, Charlie benefitted at least to some extent, from this annuity.
-12-