### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Ju ne 11 , 20 09 Ses si on

EMI LY CHRI STI NE WI MLEY v . EMIL Y ANNETTE W IML EY AND JE RRY LEE WI MLEY AND THE FIRST NATI ONAL BANK O F

MANCHEST ER, TENNESS EE

Appeal f rom the Circ uit Court for Coff ee C ounty No. 35995 L. Craig Johnson , Judge

No. M2008- 01358-COA-R 3-CV - F iled Augu st 21, 2009

This case involves the validity of transfe rs of proper ty and money from a mother to her daug hter and son-in-law. The trial court deter mined that there was a confide ntial rela tionship betwee n the mother and her daug hter and that the defendants failed to overc ome t he presumption of undue influence

. We affir m the trial court in all re spects.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

AN D Y D. B E N N E T T , J
., delivere d the opinion of the court, in which P A T R I C I A J

. C O T T R E L L , P.J
., M.S., and R I C H A R D H. D I N K I N S , J ., joined.

J ames H. Three t, I I I
, Manche ster, Tennessee
, for the appellants, Emil y Annette W imley and J err y L ee Wimley

.

Jo hn Stanley Roge rs and Christina Dunca n, Manche ster, Tenne ssee, fo r th e a p p e ll e e , E mi ly Ch

r is ti n e Wim ley

.

OP INION

F A C T U A L A N D P R O C E D U R A L B A C K G R O U N D

Emily Christine Wim ley (“Christine”) is the mother of Emily Annette Wim ley (“Emily ”). 1 Emily is marrie d to J err

y L ee Wim ley (“Jerry ”). Chr i s t i n e h ad baria tric surg ery in Marc h 2002; 2 afte r t he surge ry , she ex perie nced ext ensive complications that require d her to be hospi tal i zed for about nine months. Christine filed a medica l malprac tice lawsuit in Fe bruar y 2003.

T o a v o i d c o n f

u s i o n , w e w i l l r e f

e r t o t h e p a r t i e s b y t h e i r f i r s t n a m e s

. 1

A l t h o u g h h e s h a r e s t h e s a m e l a s t n a m e a s C h r i s t i n e a n d E m i l y , J e r r y i s n o t a b l o o d r e l a t i v e

. 2Christine beg an outpatient psy chiatr i c trea tment in April 2004 following a hospitaliz ation

for a major depre ssive disorder with psy chotic fea tures. I n September 2004, Christine’s outpatient cl i n ician g ave a diag nosis of bipolar disorder, most rec ent episode mix ed, sever e with psy ch o t i c fea tures. I n J anuar

y 2005, Christine was hospitaliz ed with suicidality

.

Christine moved in with Emily and J err y in J anuar

y 2005 and lived with them in their home until J uly 2007. During the time when Christine lived with them, Emily and J err y rec eived reg ular income only

from her job at WalMart and his job at Ba tesville Casket Company

.

Christine settled her medical malprac tice lawsuit for a larg e sum of money in Fe bruar y 2005. Christine’s attorney , Stanley Roge rs, disbursed part of the settlement proce eds to her on Marc h 21, 2005. Emily acc ompanied her mother to Mr

. Roge rs’s office
, wher e Christine r ece ived a chec k in the amount of $69,685.63. Christine and Emily then proce eded to People’ s Ba n k an d Trust Company to neg otiate the chec k. Christine rec eived cash in the amount of $9,685.63 and a cashie r’s chec k in the amount of $60,000.00. Christine deposited the $60,000.00 in her a ccount a t the First National B ank in McMinnville.

On Marc h 25, 2005, Emily took Christine to the office of attorney Mark Wil liams. Christine executed a quit claim deed convey ing her house and prope rty on Sherwood Dr ive in McMinnville to Emily with reser

vation of a life estate. The deed w as witnessed by a notar y public.

On April 1, 2005, Christine returned t o attorney Roge rs’s office

. That day
, she signe d a g ener al durable power of attorney
, a will
, a li ving will, and a durable power of attorney for health

car e. The g ener al durable power of attorney named Emily as Christine’s attorney in fac t, as did the health car e power of attorney

. Under the terms of the will, Christine left her proper ty equally to her three children: Emily

and her two brothers, William Rus sell Smartt and Gre g ory Ross S martt.

A portion of the malprac tice settlement proce eds was structure d as an annuity
, which would
pay Christine $1,162.66 a month for life
, g uara nteed for 20 y ear s. The annuity pay ments beg an in April 2005. Christine also rec eived Social Security pay ments of $545.01 per month and retire ment benef its of $109.25 per month. Thus, Christine rec eived direc t deposits totalling $1,816.93 a month into her ac count at F irst National B ank of Mc Minnvill e.

On October 3, 2005, Christine was hospitaliz ed for psy chiatric trea tment; she was diag nosed with major depre ssive disorder, rec urre nt; history of sedative abuse; and history of presc ription

narc otic abuse. On October 13, 2005, attorney Roge rs made another settlement disbursement to Christine, this time in the amount of $58,262.59. Emily ag ain acc ompanied Christin e t o Mr. Roge rs’s office

. The entire chec k was deposited into Christine’s acc ount at First National Ba nk of M c M in n v il le

. Wh il e h ospitaliz ed in November 2005 for complaints of epig astric pain, Christine w a s noted to be experiencing major problems with de pression. On November 30, 2005, Christine was seen in the e merg ency

room with depre ssion and was g iven additional medica tion.

-2-On De ce m ber 6, 2005, Christine went in the First National Ba nk of McMinnville and withdrew $96,486.68 from her acc ount in the form of a cashie r’s chec k. The money was deposited into Emily and J err

y ’s joint saving s acc ount at the First National Ba nk in Manche ster. On Dec ember 16, 2005, Christine transfer red the title to her ca

r, a 2005 Chry sler, to Emily

.

I n Aug ust 2006, Emily convey ed the Sherwood Dr i v e p roperty she had rec eived from Christine in March 2005 to Dorothy Her rin, and Christ ine s igne d the warranty deed to c onvey her life estate interest. Emily deposited the entire proce eds from t h e s al e, $ 80,370.84, into a joint

acc ount with her husband at the Asce nd Fe dera l Credit Union. On J uly 12, 2007, Emily and J err y 3 deposited $59,179.56 in cash and $81,954.69 in the form of a cashie r’s chec k from Asce nd into their

acc ount at First National Ba nk of Manche ster; that same day
, they paid off t h e m o rt gage o n their home in the amount of $22,775.13.

During the period from 2005 throug h J uly 2007, Emily and J err y made the fol l o wi ng purcha ses:

• Purchase of a 2004 Dodg e R am pi ckup truck for approxi mately $27,000 to $28,000

• Purchase of a Suntrac ker pontoon boa t for $23,067.05

• Purchase of a la

wn mower

with a che ck for

$8,274.36

• Purchase of 2007 Honda motorcy cle and then pay men t in full of debt with chec k for $28,499.79

• Purchase of a used 1995 Flee twood campe r for $4,382.25 with title and fee s

I n May 2007, Christine was hospitaliz ed for depre ssion; a psy chiatric evalua tion also noted poly substance abuse. Christine was hospitaliz ed in J une 2007 with phy sical and mental problems. A ps y chiatric evalua

tion y ielded a diag nosis of bi polar disorder, wit h notations th at Christine had

a history of schizophrenia and that dementia should be ruled out. Christine was hospitaliz ed ag ain in late J u n e an d J uly 2007. A neuropsy cholog ical evalua tion includes the following

rec ommendation: “Mrs. Wim ley ’s impulsi vity and rela tive dif fi cu l t y on tasks that require highe r order rea soning may make independe nt decision making difficult for her. I t will be helpful to have

a trusted advisor such as a close rela tive provide structure , support, and assistance in such matters.” When she was rele ased from the ho s p i t al on J uly 12, 2007, Christine did not return to live with Emily and Jerry

.

On J uly 18, 2007, Christine filed this lawsuit ag ainst Emily
, J err y , and t h e Fi rs t National Ba nk in Manche ster. She also revoke d the durable power of attorney she had g iven to Emily

. I n her

C h r i s t i n e w a s i n t h e h o s p i t a l f o r p s y c h i a t r i c t r e a t m e n t o n J u l y 1 2
, 2 0 0 7

. 3

-3-complaint, Christine alleg ed the Emily and J err y h ad p erpe trated “fr aud, embezzlement and misappropriation of funds.” She reque sted and obtained a temporar y re s t ra i n ing order to preve nt Emily and J err

y from acc essi n g or withdrawing funds from their acc ounts or “re moving, selling, mortg ag ing, encumber ing or in any manner dissipatin g an y real or personal proper ties” owned by

or titled to them. The bank was order ed to fre eze all acc ounts owned individually or jointly by Emily or Jerry

.

I n J anuar y 2008, the court g rante d the plaintiff’s motion to amend the comp l ai n t t o add a para g raph to include the transac tions in Marc h 2005 and Aug ust 2006 by which the Sherwood Drive
proper ty was convey ed to Emily with rese rvation of a life estate for Christine and then sold to a third party

.

T H E H E A R I N G

This case was hear d over two day s in May and J une 2008. At the beg inning of t h e trial, counsel for

the def endants noted tha t the complaint did not raise the issue of competenc e.

Emily Wim ley testified that Christine wanted Emily to have the Sherwood Drive house and told Emily to g et an attorney to draw up the paper s; Emily chose to g o to Mark Wil liams. Emily also testified that her mother wanted her to sell t h e Sherwood Drive house, including Christine’s life
estate interest, to Dorothy Her rin. Acc ording to Emily
, Christine g ave her all the proce eds from the sale of the house.

Emily testified that, afte r the power of attorney wa s executed in April 2005, she used the
power of attorney on occa sion to take car e of her mother’s financ ial aff airs. Emily later testified that,

even befor e Christine executed the durable power of attorney , Emily signe d Christine’s name on chec ks in order to pay her bills when she was sick. Emily did not, howeve r, use the p o we r o f attorney to make any of t he convey ance s or t ransf ers of money at issue in this case. Accor ding to Emily , Christine voluntarily signe d her ow n name to all of the require d documents.

Emily stated that Christine g ave Emily her car , a 2005 Chry sler, as well as $96,000 and the
money to pay off Emily ’s and J err y ’s mortg ag e. Emily admitted that, when Christine was rele ased from the hospital in J uly 2007, she was essentially destitute, with no house, no car , and no available cash until the next direc t deposits in Aug ust 2007. Emily stated that it was Christine’s choice to g ive all of her possessions to Emily and that all o f t h e convey ance s and g ifts in question wer e her mother’s idea . She also said that Christine wanted he r to quit her job at Wal-Mar t.

Asked about her mother’s mental problems, Emily stated that her mother was bipolar but that no one had ever said she was incompetent to conduct her own aff airs. The de fenda

nts introduced into evidenc e four audio tapes and transcr ipts of telephone conver sations b et we en Emily and Christine conce rning some of the tra nsactions at issue.

-4-The plaintiff introduced a collective exhibi t of m ed i ca l records to which the parties had

previously stipulated, including rec ords conce rning Christine’s outpatient and inpatient psy chiatric
trea tment, as well as a summary of the medi ca l re co rds. The defe ndants did not object to the introduction of t he st ipulated re co rd s o r t he sum mary

. At the pl aintiff’s request, the court further admitted the deposition for proof of Dr. Al b ert Br andon, Christine’s family car e phy sician since November 2005, who opined that “she did not have the capa city to make those decisions that wer e in her be st interest” during the time she wa s treate d at his clinic.

Christine Wim ley testified t hat, whil e she was li ving with Emily and J err y , Emi l y p ai d all of the household bills out of Christine’s bank acc ount at First National Ba nk of McMinnville. When asked whether she intended to make herse lf destitute by gi v i ng ever y thing to Emily
, Christine testified:

No, sir. I don’t rec all signing the car to her. I don’t rec all signing the house to her. I g ave her a neckla ce and a ring
, and the rest of the jewelr y was supposed to be mine. I did not g ive her the monies for their benef it. I asked her to take car e of the money

on my –for my behalf

, on my behalf

. I told her to buy the g roce ries and to pa y what bills that she had paid. And I g ave her the $22,000 to pa y off her pickup truck, and that was a ll that I g ave he r.

Acc ording to Christine, Emily and J err y lied to her: “The y paid cash for all those items they boug ht, and they told me–she told me they wa s m ak i n g p ay ments on them. And they had taken my money –took my money and paid f

or them.”

The defe nse introduced the deposition of Dr. David Flore nce for proof. Dr. Flore nce testified about his experience assessing inmates with me ntal health problems and as a consultant for a drug reha b and mental he alth service company . He revie wed the r ecor ds conce rning Christine W imley and opined that she “had the capa city to conduct her

own af fairs.”

J err y Wim ley
, Emily ’s husband and Christine’s son-in-law, testified that Christine told him that she wanted Emily to have Christine’s proper ty , quit her job, and take car e of C h ri s t i n e. He stated that Christine told him multipl e times that she wanted to sell the house on Sherwood Drive. J err y stated t h at he and Emily used some of the money she g ot from her mother to pay off the pontoon boat, to buy

a motorcy cle a

nd lawnmower , and to pay off the mor

tga g e on their house

.

The defense called various wit nesses to testify about t h ei r i n volvement i n the t ransa ctions
at issue. Eliz abeth McKe nzie, county cler k, testified about the documents maintained by her office evidenc ing Christin e Wim ley ’s transfe r of the 2005 Chry sler to Emily Wim ley as a g ift. Ms. McKe nzie did not witness Christine signing the title. Edwar d North, an attorney who was working

as a cler k at M r. R og ers’ s office at t he ti me of the ex ecution of Christine’s will, durable power of attorney , and other documents, testified that he acte d as a witness to the execution of the documents and did not have any basis for questioning Christine’s capa city to execute them. Susan Prince, a title
company employ ee and not ary public who participated i n the closing on the s ale of the S herw ood

-5-Drive house, likewise did not have any rea son to question Christine’s ability to understand what she

was doing

. Be linda Phill ips, a n employ ee at the First Na tional Ba nk in Manche ster, deposited the chec k for $96,486.68 draw n on the First National Ba nk in McMinnville into E mily and J err y ’s

acc ount. The chec k was endorse d by Christine and Emily

. Ms. Phill ips did not see Christine on the day of the deposit. Melody Hawkins, an employ ee of First National Ba nk in McMinnville, testified that she handled the Dec ember 6, 2005 transac tion in which Christine closed out her s aving s acc ount, withdrawing some $96,000. Ms. Hawkins saw Christine sign the nece ssary document and thought she appea red to know what she was doing. When Ms. Hawkins questioned Christine as to whether the bank had done any

thing to upset her, Christine replied that the bank had alway s been nice to her but she j ust wanted to close out the a ccount. Sher ry Bur dette, a former employ ee at Mr. R og ers’ s law firm and a notary public, acte d as a witness to Christine’s signing of d o cu m en t s on April 1, 2005. She believed Christine wa s of sound mind and awa re of what she w as doing that day

.

Dawn Wim ley
, Emily ’s daug hter and Christine’s g randda ug hter, also testified. Dawn stated that Christine had told her that sh e wa n t ed Emily to have the disputed proper ty “bec ause of

ever y thing [Emi ly ] was doing for her.” Christine also told Dawn that she wanted Emily to have the
proce eds from the sale of the Sherwood Drive proper ty

. Dawn testified that Christine did not want Emily to work; Christine wanted Emily to stay home with her. Dawn believed that her g randmother

was coher ent and lucid and knew what she was doing. Christine told Dawn a number of times that she g ave ever

y thing to Emily

. She g ave Emily her car beca use Emily took her eve ry wh ere and Christine did not want to drive.

At the end of the first day of the trial, the court had a discussion with the lawy ers conce rning

case law on the applicable burden of proof. Plaintiff’s counsel offe red the court a case dealing with undue influence and confide ntial rela tionships. Def ense counsel asked whether the court wanted the parties to submit briefs reg arding confide ntial rela tionships. The court stated: “We’ve g ot a situation here wher e y ou’ve g ot a conf idential rela tionship which cre ates a presumption of undue influence which shifts the burde n to y ou, Mr. Thre et [defense counsel].”

On the second day o f trial, the defe nse called Susan Wil son, an employ ee with Mr. W i l l i am s’s law firm and a notary public, who witnessed Christine’s signa ture on the d ee d transfe rring her house to Emily

. She did not rec all any thing sus p i ci o u s o r q uestionable about Christine’s conduct or de meanor

.

L i s a Fo ster, an employ ee at Mr. Roge rs’s law firm and notary public, testified that she notarized Christine’s signa ture on the will, durable power of attorney , and liv i n g wi l l

. Christine
appea red to be coher ent and seeme d to understand what was g oing on. Ms. Foster also notarized Christine’s signa ture on the complaint in this case

. Ms. Foster stated that she had no rea son to doubt that Christine knew what she was signing

. Ms. Foster was also prese nt when Mr. Roge rs made the
two larg e settl eme n t d i s b ursements to Christine; she st ated that Christine appea red lucid. During the course of the malprac tice litigation and the prese nt litigation, Ms. Fos t er h ad fairly fre quent contac t with Christine, who participa ted in prepa ring for depositions and interrog atory answe rs and
appea red luc id.

-6-The d ef en s e als o called attorney Stanley Roge rs to testify about his rela tionship with Christine as her attorney over the y ear s. Mr. Roge rs testified that his interac tion with Christine had

never cause d him to question her competenc e.

Wil liam Smartt, Christine’s first husband, testified that he had a conver sation with Christine afte r she rec eived her settlement. He wanted to borrow money from her. Acc ording to Mr. Smartt, Christine told hi m that she had g iven eve ry thing to Emily

.

The defe nse rec alled Emily as a witness at the end of the trial. She testified that, sometime prior to Christine deeding the house to her, she hear d her mother tell her brother, Ross Smartt, that she would g ive the Sherwood Drive house to him and his wife if she could move in w ith them and they would take c are of her

.

At the end of the proof, t h e p l ai n t i ff moved to amend the complaint to confor m to the evid en ce b y adding a para g raph asser ting that Emily and J err

y “exerted undue influence ” over Christine and that Christine “lac ked the capa city to make the transac tions ref err ed to above.” After hear ing a rg uments from both sides, the cour t gr anted the pla intiff’s motion.

T R I A L C O U R T ’ S D E C I S I O N

I n its order enter ed on J une 30, 2008, the court incorporated the following finding s from its ruling from the be nch:

The Court finds by p ro o f i n the case that a confide ntial and fiduciar y rela tionship exis ted betwee n at least o n e o f t h e defe ndants, that being Emily Wim ley –she was the dominant party in the rela tionship–over Christine Wim ley
, the plaintiff, which cre at es a presumption of undue influence in this case

. . . . This is

rea lly about whether or not this g ift was a result of undue influence or whether it was the fre e, uncoe rce d will of the plaintiff making that decision.

The Court

. . . believes that Ms. Christine Wim ley
, due to her fra ilty and ag e and m ental I ’m g oing to say problems–manic depre ssive, bipolar, sever e depre ssions–was infirmed [si c] and had lesser capa city to make decis i o n s b ased entirely on her f ree will at the time of these tra nsactions in question.

I find that the defe ndant has not overc ome that presumption by showing clea r and convinc ing e vidence of the fa irness or otherwise that these gifts we re g iven by . . . Ms. Christi ne Wimley ’s fre e, uncoe rce d will except for I find that based on the testimony of Ms. Christine Wim ley that as to some things [t he defe ndants] have

overc ome that presumption. There is a neckla ce and a ri n g.

. . . I also find that
y ou’ve overc ome the presumption in reg ards to the $22,000 to pay the pickup truck.

-7-The court also found that Christine intended to g ive Emily “enoug h money to pay the monthly bills,”

which the c ourt deter

mined to be $1,000 per

month.

Ba sed upon these finding s, the trial court enter ed judgme nt in th e am o u n t of $209,193.10
ag ainst Emily and J err

y Wim ley

. The First National Ba nk of Manche ster was order ed to pay funds 4 on deposit in the amount of $18,399.35 to the court cler k to be used to help satisfy the judg ment. The court further order ed attache d and seized the Ho n d a motorcy cle, the Flee twood campe r, the pontoon boat, and the law n mower; the c ourt cler k was to sell these items and pay the proc eeds to Christine Wim ley

. Fur

thermore
, Emily was order ed to deliver and transfe r title to the 2005 Chry sler
to Christine; the fair marke t value of the car , $15,387.50, was to be cre dited ag ainst the judgme nt. The c ourt denied the defe ndants’ motion for a ne w trial.

I S S U E S O N A P P E A L

Emily and J err

y Wim ley arg ue on appea l that the trial court err ed in allowing the plaintiff to amend the complaint to confor m to the proof. They further asser t that the trial court err ed in finding

a confide ntial rela tionship, in finding undue influence
, and in finding that the defe ndants did not

overc ome the pre sumption of undue influence by clea r and c onvincing evidenc e.

S T A N D A R D O F R E V I E W

We revie w a trial court’s finding s o f fac t with a presumption of corr ectne ss and will not overturn those finding s unless the evidenc e preponde ra t es against them. Tenn. R. App. P. 13(d); Bogan v. Bogan
, 60 S.W .3d 721, 727 (Tenn. 2001). Wit h respe ct to finding s of fac t that require the trial court to resolve conflicts in the evidenc e and deter mine the weig ht to be g iven the testimony of witnesses, we g ive gre at weight to the t rial court’s finding s. W aller v. Evans , No. M 2008-00312- COA-R3-CV, 2009 WL 723519, *2 (Tenn. Ct. App. Mar. 17, 2009). The trial court is in the best position to assess the cre dibilit y of witnesses. Id. We review a trial c ourt’s conc lusions of la w de

novo with no presumption of corr ectne ss. Union Carbide Corp. v. Huddleston
, 854 S.W .2d 87, 91 (Tenn. 1993)

.

A trial court’s decision to allow the amendment of pleading s is revie wed under an abuse of discretion standard. Riley v. W hybrew
, 185 S.W .3d 393, 399 (Tenn. Ct. App. 2005). There has been

an abuse of discretion “whe n the trial court rea ches a decision ag ainst logic that cause s a harm to the complaining party or when the trial court applies an incorre ct leg al standard.” Id. The trial court’s decision will be upheld “so long as rea sonable minds can disag ree as to the prop ri et y of the [t rial court’s] decision.” Id. (quoting State v. Scott , 33 S.W .3d 746, 751 (Tenn. 2000) ).

AN A L Y S I S

T h e $ 2 0 9
, 1 9 3

. 1 0 f

i g u r e r e p r e s e n t s t h e $ 2 5 9
, 1 9 3

. 1 0 t h a t f l o w e d t h r o u g h C h r i s t i n e ’ s a c c o u n t d u r i n g t h e 2 8 4

m o n t h s s h e l i v e d w i t h E m i l y a n d J e r r y m i n u s $ 2 8
, 0 0 0 f o r l i v i n g e x p e n s e s a n d $ 2 2
, 0 0 0 f o r p a y i n g o f

f t h e l o a n o n t h e i r p i c k

- u p t r u c k

.
-8-1.

Tenn. R. Civ. P. 15.02 gover ns amendments to conf

orm to the evidenc e:

When issues not raised by the pleading s are tried by express or implied consent of the parties, they shall be trea ted in all respe cts as if they had been raised in the pleading s. Such amendment of the pleading s as may be nece ssary to cause them to confor m to the evidenc e and to raise these issues may be made upon motion of any party at any time, even afte r ju d gm en t ; b ut failure so to amend does not aff ect the result of the trial of these issues.

. . . I f evidenc e is objected to at the trial on the g round that it is
not within the issues made by the pleading s, the court may allow the pleading s to be amende d and shall do so fre ely when the prese ntation of the merits of the action will be subserve d there by and the objecting party fails t o s ati sfy the court that the admission of such evidenc e would pre judice that par

ty in ma intaining the action or defe nse upon the merits. The court may g rant a continuance to enable the objecting party to meet such e vidence

.

I n this case , the trial court had previously g rante d the defe ndants a continuance to take the deposition of Dr. Flore nce reg arding lack of capa city

. Although defe nse counsel noted at the beg inning of the trial that the complaint did not allege u n d u e i n fl uence , at the end of the first day
, both attorney s mentioned their rese arc h on case law with respe ct to undue influence
, and the trial court clea rly stated its understanding that the cas e h i ng ed on the exis tence of a confide ntial rela tionship and undue influence

.

At the end of the trial, defe nse counsel objected to the plaintiff’s motion to am en d t h e pleading s. Def

ense counsel emphasized its rig ht to have notice of the issues being tried, but the trial
court noted the previous continuance to allow the defe nse to take Dr. Flore nce’ s deposition. T h e court asked defe nse counsel, “wha t prejudice is there at this point since we continued it the first time
to g ive y ou a chanc e to rebut a new theo ry t h at y o u knew at that time? ” The defe ndants did not

asser t any prejudice or re quest another continuance to respond to the plaintiff’ s evidenc e.

Under the circ umstances, we cannot say that the trial court abused its discretion in g ranting the pl aintiff’s moti on to amend the complaint. The iss ue of undue influence was tried by consent of the pa rties, and ther e wa s no prejudice to the defe ndants here

.

2.

Under well-settled Tenne ssee law, “the existenc e of a confide ntial or fiduciar y rela tionship, toge ther with a transac tion by which the dominant party obtains a benef it from the other party , g ives rise to a presumption of undue influence that may be rebutted.” Matlock v. Simpson
, 902 S.W .2d 384, 385 (Tenn. 1995) (empha si s i n orig inal). Whether a confide ntial rela tionship exis ted is a q u es t i o n of fac t. Smith v. Smith
, 102 S.W .3d 648, 652 (Tenn. Ct. App. 2002). A confiden t i al

-9-rela tionship is define d as a rela tionship “which g ives the dominant party dominion and control over the wea ker pa rty .” Id. at 653.

A fiduciar

y rela tionship, such as that betwee n attorney and client o r gu ardia n and war d, automatically constitutes a confide ntial rela tionship. Mitchell v. Smith
, 779 S.W .2d 384, 389 (Tenn. Ct. App. 1989). The relat i o n s h i p b et we en a pare nt and an adult does not, by itself, cre ate a confide ntial rela tionship. Smith
, 102 S.W .3d at 653; Mitchell
, 779 S.W .2d at 389. There must also be evidenc e of dominion and co n trol. Basham v. Duffer
, 238 S.W .3d 304, 311 (Tenn. Ct. App. 2007) ; In re Estate of Brevard
, 213 S.W .3d 298, 303 (Tenn. Ct. Ap p

. 2 0 0 6). Howeve r, “a confide ntial rela tionship arises as a matter of law when an unrestric ted power of attorney is g rante d
to the dominant party .” Childress v. Currie
, 74 S.W .3d 324, 328 (Tenn. 2002); Smith
, 102 S.W .3d at 653.

The defe ndants arg ue that the trial court err ed in finding that a confide ntial rela tionship arose

on t h e b as is of a power of attorney that was never exercised. They rely on the rule that “[n] o confide ntial rela

tionship arises when an unrestric ted power of attorne y

is ex ecute d but has not y et been exercised.” Parish v. Kemp
, 179 S.W .3d 524, 531 (Tenn. Ct. App. 2005) (citing Childress
, 74 S.W .3d at 329). There are sever al problems with the defe ndants’ arg ument. Emily testified that she signe d her mother’s name to c hecks befor e and afte r execution of the power of attorney

. The fac t, cited by the defe ndants, that Emily did not sign her own name as attorney -in-fa ct does not mean she

was not acting as her mother’s attorney -in-fa ct. Emily also admitted during her testimony that she exercised the power of attorney , althoug h not for the transac tions at issue in this case

. This court has previously acknow ledg ed that a confide ntial rela tionship might arise based upon a power of attorney that was e x erc ised but not used for the disputed tra nsactions. See id. , 179 S.W .3d at 532.

We need not, howeve r, resolve the issues prese nted by the defe ndants’ p o wer of attorney arg ument beca

use the trial court based its finding of a confide ntial rela tionship upon multipl e fac to r s , not just on the ex i s t en ce o f a power of attorney

. I n ruling from the bench, the court made the following statements:

There ’s no doubt i n my mind that a confide ntial and/or a fiduciar y rela tionship exis ted betwe en [Emily

Wim ley ] and Ms. [ Christine] Wim ley

. There ’s a power of attorney

. There ’s a depende nce upon them for her lifeblood, house t o l i v e in, basica lly turned every

thing over t o her at some point in ti me for he r to take c are of her. So in my opinion y ou have a fiduciar y rel ati onship, confide ntial rela tionship established her e.

. . . .

S o that’s what I meant when I said ear lier I think it’s clea r that a confide ntial and fiduciar y rela tionship was established. Whether it’s the power of attorney , whether it’s the fact that she depe nded upon them and tur ned all her money over to them to handle her aff

airs, the fac t that she lived with them, the fac t that she depende d upon

-10-them to g et her around, y ou know, s h e g ave car s to

. . . all that cre ates that

confide ntial–y ou’ve g ot a dominant party in this case.

T h u s , t h e t rial court considere d all of the circ umstances, not just the exis tence of the power of attorney , in finding a

confide ntial relationship betwee n Emily and Christine.

We g ive g rea t defe renc e t o the trial court’s finding of fac t conce rning the exis tence of a confide ntial relationship. Smith , 102 S.W .3d at 651. The e vidence does not preponde rate ag ainst the trial cour

t’s finding that a conf

idential rela tionship ex isted.

A confide ntial rela tionship coupled with “a transac tion by which the dominant party obtains

a benef it f rom the other party ” cre ates a presumption of undue influe nce. Matlock , 902 S.W .2d at 385. Since Emily had a co n fi d en t ial rela tionship with Christine and rec eived a benef it from the
transac tions at issue, there is a presumption of undue influence

. This presumption may be rebutted only by “cle ar and convincing evidenc e of the fairne ss of the transa ction.” Id. at 386. The burden of proof shifts to the dominant party to show that the transac tion was fair and was not a result o f undue influence

. Thompson v. Thompson
, No. W2008-00489-COA-R3-CV, 2009 WL 637289, *10 (Tenn. Ct. App. Mar. 12, 2009). The deter mination as to whether the dominant party exerted undue influence is a question of fa ct. W aller , 2009 WL 723519, at *9.

W h at k i n d o f proof is require d to rebut the presumption of undue influence ? The weaker party ’s rec eipt of independe nt leg al advice is one way of showing fairne ss. Richmond v. Christ ian
, 555 S.W .2d 105, 107-08 (Tenn. 1977). I n fac t, pr oof of independe nt le g al advice may be require d in cer tain case s. Id. at 108. Otherw ise, the court is to consider all of the evidenc e and apply “sound

5 principles and g ood sense” in de termining whether the transac tion wa s fair. Childress
, 74 S.W .3d
at 329; see also W

aller
, 2009 WL 723519, at *9. I n case s in which a presumption of undue influence arises f rom the existence of a

confide ntial relationship, a cour t may consider “ a lack of

suspicious circ umstances as evidenc e to rebut an automatic leg al presumption of undue influence .” Parish v

. Kemp
, No. W2007-02207-COA-R3-CV, 2 0 08 WL 5191291, *6 (Tenn. Ct. App. Dec

. 11, 2008) (per m. app. denied J une 15, 2009). I n the context of wills, t he courts rec og nize that suspicious circ umstances of

undue influenc e may

include the f

ollowing:

(1) the exis tence of a confide ntial rela tionship betwee n the testat o r and the benef iciary ; ( 2) the testator’s phy sical or menta l deteriora tion; (3) the benef

iciary ’s active involvement in procur ing the will; (4) secr ecy conce rning the will’s exis tence ;

I n R i c h m o n d
, t h e c o u r t n o t e d : 5

I n d e p e n d e n t a d v i c e i s o r d i n a r i l y r e q u i r e d w h e r e i t i s a r e a s o n a b l e r e q u i r e m e n t a n d w h e r e t h e

c i r c u m s t a n c e s a r e s u c h t h a t i t w o u l d b e d i f f i c u l t t o s h o w t h e f

a i r n e s s o f

t h e t r a n s a c t i o n w i t h o u t p r o o f

o f i n d e p e n d e n t a d v i c e , p a r t i c u l a r l y , w h e r e t h e d o n o r i s i m p o v e r i s h e d b y t h e g i f t i n q u e s t i o n o r t h e g i f

t

s e e m s t o b e u n n a t u r a l u n d e r t h e c i r c u m s t a n c e s o f t h e c a s e

.

R i c h m o n d
, 5 5 5 S

. W

. 2 d a t 1 0 8

.
-11-(5) the testator’s advance d ag e; (6) the l ack of independe nt advice in prepa ring th e will; (7) the testator’s illit era cy or blindness; (8) the unjust or unnatura l nature of the will’s terms; (9) the testator being in an emotionally distr au gh t s tate; (10) discrepa ncies betwee n the will and the testator’s expressed intentions; and (11) fra ud or dure ss directe d toward the testator.

Id. (citing Kelley v . Johns , 96 S.W .3d 189, 196 (Tenn. Ct. App. 2002))

.

I n this case , the defe ndants arg ue that Christine was capa ble and awa

re of what she was doing in making the disputed transfe rs to Emily

. They point to Christine’s ability to initiate and participa te in th e malprac tice lawsuit and the prese nt lawsuit as well as the multipl e witnesses who saw no indication that she wa s impaired whe n she executed he r will and dura ble power of attorney
, when she withdrew money from her acc ount, and when she signe d the deeds to transfe r re al p roperty

. Fur ther, the defe ndants cite testimony and rec orded telephone conver sation s i n s u p p o rt of their contention that Christine intended to g ive the proper ty and money to her daug hter. The trial court, howeve r, place d g rea t sign i fica nce upon the evidenc e of Christine’s diminis hed capa city to make decisions “of her fre e will” by virtue of her mental impairments, fra ilty
, and ag e. Earlier in the hear ing, the court also pointed out that the transac tions at issue, by which Emily rec eived all of her mother’s estate with the exception of the future direc t depo s i t s , contra dicted the intention she expressed in her w ill of dividi ng her e state equa lly among her thre e childre n.

The trial court’s finding that the defe ndants did not rebut the presumption of undue influence by clea r and convincing evidenc e require d the trial court to weig h conflicting evidenc e and witness

cre dibilit y , assessments for which we g ive g rea t defe renc e to the trial court. We cannot say that the evidenc e pre pondera tes ag ainst the trial cour t’s finding

.

C O N C L U S I O N

We aff irm the trial court’s decision. Costs of this appea l are assessed ag ainst the appellants, for whic h execution may

issue if nec essar

y

.

___________________________________

ANDY D . BEN

NETT, JUDGE

-12-