IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 4, 2011 Session

JANICE DAVIS BOELTER and RICHARD DAVIS v. JACKIE CURTUS

REAGAN, ET AL.

Direct Appeal from the Chancery Court for Wilson County

No. 09-145 C. K. Smith, Chancellor

No. M2010-01354-COA-R3-CV - Filed May 18, 2011

Decedent executed a will in 1988 which could not be found upon her death. Decedent’s stepchildren sought to establish a copy of the 1988 will as Decedent’s last will and testament, but

the trial court found that they had failed to rebut the presumption that the will had been

destroyed and revoked. We find that Appellants failed to prove that Decedent did not revoke

her will. Accordingly, we affirm the trial court’s involuntary dismissal of Appellants’ claim

as well as its order that Decedent’s Estate be administered as an intestate estate.

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

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which HOLLY M. KIRBY,

J., and J. STEVEN STAFFORD, J., joined.

Michael R. Jennings, Lebanon, Tennessee, for the appellants, Janice Davis Boelter and

Richard Davis

Brody N. Kane, Angel P. Kane, Lebanon, Tennessee, for the appellee, Jackie Curtus Reagan
OPINION

I. FACTS & PROCEDURAL HISTORY

Thomas and Erma Davis (now “Mrs. Reagan”) married in 1988. Thatsame year, Mrs.

Reagan executed a will leaving her property to Mr. Davis, but if he failed to survive her, then

one-half to her surviving siblings and one-half to Mr. Davis’ children. Attorney Michael

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R. Jennings was nominated as executor.

Mr. Davis died on October 26, 1988, and Mrs. Reagan married Appellee Jackie Curtus

Reagan (“Mr. Reagan”) in 1994. She died on December 4, 2007. In January 2008, Mr.

Reagan filed a “Petition for Administration of Estate and Granting of Letters of

Administration,” claiming to be the sole residuary beneficiary of Mrs. Reagan’s estate

because despite his “diligent search,” no will had been found. After learning of Mr.

Reagan’s petition, attorney Jennings retrieved a copy of Mrs. Reagan’s 1988 will from his

files and brought it to the probate court’s attention. Mr. Davis’ children, Appellants Janice

Davis Boelter and Richard Davis, then filed a complaint in the probate court seeking to

establish the 1988 copy as Mrs. Reagan’s Last Will and Testament. Following a hearing, the

probate court found that because the original will was not found upon her death, it was

presumed to have been destroyed and revoked. Appellants, the probate court found, had

failed to rebut such presumption, and therefore, it ordered that her Estate be administered as

an intestate estate. Appellants appealed to the chancery court, but it likewise found that

Appellants had failed to “provide any proof at all” to overcome the presumption that Mrs.

Reagan’s will had been destroyed in order to revoke it. Appellants subsequently appealed

to this Court.

II. ISSUES PRESENTED

Appellants present the following issues for review:

1. Did the trial court err in directing a verdict for the Appellees;

2. Did the trial court err in failing to admit the Last Will and Testament of Erma Mae

Reagan to probate;

Mrs. Reagan’s 1988 will, upon Mr. Davis’ predeceasing her, bequeaths one-half of her property to 1

“my husband’s children,” rather than to “Mr. Davis’” children. No issue is raised as to those properly

included in this class. 

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3. Did the trial court err in finding that the Estate shall continue to be administered as

an intestate estate for administration purposes by Jackie Curtus Reagan; and

4. Did the trial court err in its rulings on the admission of evidence by excluding the tape

marked as Exhibit 2 for identification only and the testimony of the Appellee about

the real estate listed on the Inheritance Tax Return.

For the following reasons, we affirm the decision of the chancery court.

III. DISCUSSION

A. Motion for Directed Verdict v. Motion for Involuntary Dismissal

This case was tried by the trial judge without a jury, and at the conclusion of

Appellants’ proof, the trial court, upon Mr. Reagan’s request, granted a motion for directed

verdict. Appellants argue on appeal that this was procedurally incorrect, and therefore, that

the chancery court’s decision must be reversed and the case remanded for a new trial.

“[M]otions for directed verdicts have no place in bench trials, while Tenn. R. Civ. P.

41.02(2) motions [for involuntary dismissal] have no place in jury trials.” Burton v. Warren

Farmers Coop., 129 S.W.3d 513, 520 (Tenn. Ct. App. 2002) (citing Cunningham v. Shelton

Sec. Serv., Inc., 46 S.W.3d 131, 135 n.1 (Tenn. 2001); City of Columbia v. C.F.W. Constr.

Co., 557 S.W.2d 734, 740 (Tenn. 1977); Scott v. Pulley, 705 S.W.2d 666, 672 (Tenn. Ct.

App. 1985)). The two motions serve different purposes and require different analyses. Id.

“A Tenn. R. Civ. P. 50 motion for directed verdict provides a vehicle for deciding

questions of law.” Burton, 29 S.W.3d at 520. The trial judge does not weigh the evidence

or assess witness credibility. Id. (citing Conatser v. Clarksville Coca-Cola Bottling Co., 920

S.W.2d 646, 647 (Tenn. 1995); Richardson v. Miller, 44 S.W.3d 1, 30 (Tenn. Ct. App.

2000)). Instead, he reviews the evidence in the light most favorable to the non-moving party

in order to determine whether sufficient evidence has been presented to create an issue of fact

for the jury to decide. Id. (citing Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn.

2000); Addaman v. Lanford, 46 S.W.3d 199, 203 (Tenn. Ct. App. 2000); Spann v. Abraham,

36 S.W.3d 452, 462 (Tenn. Ct. App. 1999); Ingram v. Earthman, 993 S.W.2d 611, 626

(Tenn. Ct. App. 1998)). “A jury issue has been created if there is any doubt regarding the

conclusions to be drawn from the evidence . . . or if reasonable persons could draw different

conclusions from the evidence.” Id. (citations omitted). However, where reasonable minds

could reach only one conclusion, no jury issue is raised. Id. (citing Eaton v. McLain, 891

S.W.2d 587, 590 (Tenn. 1994); Tompkins v. Annie's Nannies, Inc., 59 S.W.3d 669, 673

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(Tenn. Ct. App. 2000)).

Motions for involuntary dismissal, however, “challenge the sufficiency of the

plaintiff’s proof.” Id. (citing Smith v. Inman Realty Co., 846 S.W.2d 819, 821 (Tenn. Ct.

App. 1992); Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn. Ct. App. 1979)). A dismissal

pursuant to Tenn. R. Civ. P. 41.02(2) is appropriate if, “based on the law and the evidence,

the plaintiff has failed to demonstrate a right to the relief it is seeking.” Id. (citing City of

Columbia, 557 S.W.2d at 740). Motions for involuntary dismissal require less certainty than

do motions for directed verdict. Id. (citing Smith, 846 S.W.2d at 822). In deciding a Rule

41.02(2) motion to dismiss, the trial court “need only impartially weigh and evaluate the

plaintiff’s evidence just as it would after all the parties had concluded their cases and may

dismiss the plaintiff’s claims if the plaintiff has failed to make out a prima facie case by a

preponderance of the evidence.” Morris v. Morris, No. 02A01-9610-CH-00236, 1997 WL

703379, at *3 (Tenn. Ct. App. Nov. 12, 1997) (citing Thompson v. Adcox, 63 S.W.3d 783,

791 (Tenn. Ct. App. 2001)).

This case was a nonjury trial in which Mr. Reagan moved the trial court to direct a

verdict in his favor at the close of Appellants’ proof. Procedurally, this was an inappropriate

motion. The appropriate motion was one pursuant to Tennessee Rule of Civil Procedure

41.02(2), a motion for involuntary dismissal. However, Appellees contend that the trial

court, in essence, ruled on a motion to dismiss, and we agree. The trial court’s order

demonstrates that Appellants’ claim was dismissed for insufficient proof–Appellants failed

to provide “any proof” to rebut the presumption that the 1988 will was destroyed and thereby

revoked. Because the trial court properly analyzed Appellees’ motion as one for involuntary

dismissal, we refuse to elevate form over substance, and therefore reject Appellants’

argument that the decision must be reversed on this basis.

In reviewing a trial court’s disposition of a motion for involuntary dismissal, our

scope of review is pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure.

Burton, 129 S.W.3d at 521. Tennessee Rule of Appellate Procedure 13(d) requires appellate

courts to defer to a trial court’s findings of fact. Boote v. Shivers, 198 S.W.3d 732, 740

(Tenn. Ct. App. 2005) (citing Fell v. Rambo 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000);

Taylor v. Trans Aero Corp., 924 S.W.2d 109, 112 (Tenn. Ct. App. 1995)). Thus, an appellate

court must “leave a trial court’s finding of fact undisturbed unless it determines that the

aggregate weight of the evidence demonstrates that a finding of fact other than the one found

by the trial court is more probably true.” Id. (citing Estate of Haynes v. Braden, 835 S.W.2d

19, 20 (Tenn. Ct. App. 1992)). “For the evidence to preponderate against a trial court’s

finding of fact, it must support another finding of fact with greater convincing effect.” Id.

This Court must give great weight to the trial court’s assessment of the evidence as it is in

a better position to evaluate witness credibility. Id. (citing Thompson, 63 S.W.3d at 787).

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The trial court’s conclusions of law are reviewed de novo with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710

(Tenn. 2001) (citing Daron v. Dep't of Corr., 44 S.W.3d 478, 480 (Tenn. 2001); Johnson v.

Johnson, 37 S.W.3d 892, 894 (Tenn. 2001)).

B. Disposition of Involuntary Dismissal

Having determined that the trial court granted an involuntary dismissal of Appellants’

claims, we must determine whether such dismissal was appropriate.

“[T]he fact that a will cannot be found after a due and proper search raises a

presumption that the testator himself destroyed the will.” In re Estate of West, 729 S.W.2d

676, 678 (Tenn. Ct. App. 1987) (citing Shrum v. Powell, 604 S.W.2d 869 (Tenn. Ct. App.

1980); Haven v. Wrinkle, 195 S.W.2d 787 (Tenn. Ct. App. 1945)). To establish that a will

was not intentionally destroyed, the proponent of a lost will must show “(1) the fact that the

will was executed in accordance with the forms of law, (2) the substance or contents of the

will, and (3) that the will has not been revoked, and that it is lost or destroyed or cannot be

found after a due and proper search.” Id. (citing Morris v. Swaney, 54 Tenn. 591 (1872);

Sanders v. McClanahan, 442 S.W.2d 664 (Tenn. Ct. App. 1969)). Each element must be

proven by “‘the clearest and most stringent evidence,’ or by ‘clear, cogent and convincing

proof.’” In re Estate of Cockrill, No. M2010-00663-COA-R3-CV, 2010 WL 4939950, at *3

(Tenn. Ct. App. Dec. 2, 2010) perm. app. denied (Tenn. Mar. 15, 2011) (quoting Sanders,

442 S.W.2d at 667).

The parties do not dispute that the first two elements have been met. However, Mr.

Reagan contends, and the trial court found, that Appellants failed to prove that Mrs. Reagan

did not revoke her 1988 will. Appellants claim that this finding was error based upon the

testimony presented at trial.

According to statements made by Attorney Jennings, Mr. Davis and Mrs. Reagan

executed similar wills in 1988, leaving everything to the surviving spouse, but if the other

did not survive, then one-half to Mrs. Reagan’s siblings and one-half to Mr. Davis’ children.

After Mr. Davis’ death in 1988, Appellants unsuccessfully contested Mr. Davis’ will.

According to Appellant Richard Davis, he spoke with Mrs. Reagan shortly after Mr. Davis’

death and Mrs. Reagan stated that “that’s the way your father wanted it, . . . after I’m dead,

you and yoursister[, AppellantJanice Davis Boelter,] get your part then.” Mr. Davis testified

that based upon this conversation he believed that he would “inherit from her will[.]”

However, both Appellants acknowledged that they had not spoken with Mrs. Reagan in over

a decade prior to her death, and that other than the copy of the 1988 will, they had no proof

that Mrs. Reagan wanted any portion of her estate to pass to them.

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Appellants also heavily rely upon the testimony of Mrs. Reagan’s sister, Linda

Stembridge-Smith, who described a conversation with Mrs. Reagan approximately two

months prior to her death. Ms. Stembridge-Smith asked Mrs. Reagan, “have you got

everything fixed like you want it?” Mrs. Reagan replied, “I’ve got it all fixed like I want it.”

From that statement, Ms. Stembridge-Smith “figured that [Mrs. Reagan] had her wills and

stuff fixed the way that she wanted it, because [she] was with [Mrs. Reagan] and Tom Davis

when they fixed the [1988] wills. And that’s the way I figured that she had left it.” She

conceded, however, that she had not seen the 1988 will since its execution.

Appellants also called Mr. Reagan to testify. He stated that Mrs. Reagan told him that

she had destroyed the 1988 will, although he did not witness its destruction, and that an

attorney had advised her that she did not need to execute a new will as everything “would

automatically revert down to [him.]” He further testified that Mrs. Reagan had told him

where she kept her important papers, and that after her death he found deeds and other court

documents there, but despite a “diligent search,” found no will. He claimed that during their

marriage, Mrs. Reagan had no contact with Appellants, and that “[s]he indicated to [him] she

didn’t want [Appellants] to get nothing, ‘cause they had spent their inheritance on lawyer’s

fees when they contested their daddy’s will.”

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We find that these statements do not prove that Mrs. Reagan’s 1988 will was not

revoked, and therefore, we cannot find that a prima facie case of a lost will has been

established. Mrs. Reagan’s alleged statement that Appellant Mr. Davis would “get [his] part”

upon her death was made prior to her marriage to Mr. Reagan and more than a decade prior

to her death. Moreover, her alleged statement that she had everything “fixed like [she]

want[ed] it” could imply that she intended the 1988 will to remain in effect, but it could just

as easily describe her satisfaction with having destroyed the will such that Mr. Reagan would

be the sole beneficiary of her estate. We agree with the trial court that the testimony elicited

at trial simply fails to prove that Mrs. Reagan did not revoke her will. Accordingly, we

affirm the trial court’s involuntary dismissal of Appellants’ claim as well as its order that

Decedent’s Estate be administered as an intestate estate.

C. Exclusion of Evidence

Finally, we address Appellants’ arguments that the trial court improperly excluded

evidence. At trial, Appellants attempted to introduce a taped answering machine message,

which they alleged was left by Mr. Reagan to Appellant Richard Davis “saying we don’t

The trial court specifically found that “Ms. Reagan and her step-children, Janice Davis Boelter and 2

Richard Davis[,] lacked a loving relationship and in fact the proof was that they had a strained relationship.” 

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need to go to court. We don’t need to go into this.” Appellee objected for lack of a

foundation: the caller apparently did not state his name, Appellant Davis testified that he

“just assume[d] that it was Mr. Reagan [who left the message]” as he “didn’t really know his

voice[,]” and Mr. Reagan testified that he did not leave the message. The trial court excluded

the tape, finding it irrelevant. However, Appellants contend that “an inference could be

drawn from that tape that Jackie Curtus Reagan was worried about what could happen if this

matter proceeded to trial.”

The trial court also excluded, as irrelevant, proof regarding four parcels of real estate

listed on Mrs. Reagan’s Inheritance Tax Return. Appellants argue that “[t]he value of these

properties, and the fact that one burned, are very relevant to show who has the most to lose

by the Court admitting the copy of the Last Will and Testament of [Mrs. Reagan] to probate.”

“[T]he admissibility of evidence is within the sound discretion of the trial court.”

Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (citing Otis v.

Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992)). A trial court’s decision

to admit or exclude evidence will be overturned only where an abuse of discretion is found.

Id. (citing Otis, 850 S.W.2d at 442). A trial court abuses its discretion “only when it

‘applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or

reasoning that cause[s] an injustice to the party complaining.’” Id. (quoting State v. Shirley,

6 S.W.3d 243, 247 (Tenn. 1999)). Because we agree that the audiotape and the real estate

information are irrelevant to the issue of the will’s revocation, we find that the trial court did

not abuse its discretion in excluding such.

IV. CONCLUSION

For the aforementioned reasons, we affirm the decision of the chancery court. Costs

of this appeal are taxed to Appellants, Janice Davis Boelter and Richard Davis, and their

surety, for which execution may issue if necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

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