# FILED
October 1, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk RALPH MOORE C RESWELL, ) ) Williamson County Chancery Plaintiff/Appellee ) No. 13878 ) VS. ) Appeal N o. ) 01A01-9702- CH-00059 BILLIE CRESWELL DUFF, ) ) Defendant/Appellant )

IN THE COURT OF

APPEALS OF

TENNESSEE MIDDLE SECTION A T NASHVILLE
APPEAL FROM THE WILLIAMSON COUNTY CHANCERY COURT

AT FRANKLIN , TENNESSEE
HONORABLE HENR

Y D. BELL, C HANCELLOR

Karl D. Wa

rden 2000 First Union Tower 150 Fourth A

venue Nor

th Nashville , TN 37 219-2425 ATTORNEY FOR DEFENDANT/APPELLANT James L. Woodard 408 Main Street P. O. Box 708 Franklin, TN 37064 ATTORNEY FOR PLAINTIFF/APPELLEE

AFFIRMED A S MODIFIED AND REMANDED

WILLIAM H. INMAN, SENIOR JUDGE
CONCUR: HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION BEN H. CANTRELL, JUDGE2

RALPH MOORE C RESWELL, ) ) Williamson County Chancery Plaintiff/Appellee ) No. 13878 ) VS. ) Appeal N o. ) 01A01-9702- CH-00059 BILLIE CRESWELL DUFF, ) ) Defendant/Appellant )



### O P I N I O N
This complaint was filed July 17, 1978, by a Conservator seeking an accounting

from a Truste e - Executrix. The defendant

was appointe d guardian of Ralph Moore Cresw ell [“Creswell”] i n 1973 an d Trustee in 1974 by

the County

Court of W

illiam son Cou nty. Her ac counting to the County Court is challenged in this a ction. The case languish edfor eighte en (18) years and w as finally heard on O ctober 10, 1996. Creswe ll was awarded $15,412.74 an d pre-ju dgment interest from

July 17, 1978 at 1 0% p er a nn um. The co mplaint alleges that Creswell was m entally retarded and unable t o
manage hi s af

fai rs, gi vi ng ris e to th e ap po in tme nt of the fi duciary . His es tate of about $55,000.00 was inherited from his father, Roy Creswell, whose estate was admin istered by

the defen dant. The defendant was appointed guardian of Roy Cr es well on D ecem ber 13, 1973. He died M arch 1, 1974. She was appointed Executrix of his estate and filed
an accoun ting showing

expenditures during her guardia nship of $4, 295.74, w ith the balanc e of $19,42 1.08 being p aid over to herself as Execu trix. On August

15, 1974, the County Court Clerk took and stated the Executrix’ account. He char

ged her w ith the sum

of $52,920. 58 , which inc luded the1 Successor to the County Court Clerk as Probate Clerk. 3 guardiansh ip funds, and credited her with disburs emen ts o f $14,895. 98, leaving $38,024.50 to be turned o ver to the defendant as Trust ee for R

alph Cres well. T

his stated ac count ref

lects that the disburs emen

ts wereverifie d by ca

nceled ch ecks. On November 12, 1975, a Report was fi led in the County Court by T. H. Alexander, attorney

for the defendant , allegin g various disbursem ents, inc luding
one to himself in the amoun t of $2,500. 00. This R

eport wa s not signed by

the defendant and was no t approved b y

the Court. It is, f

or both rea sons, ineffic acious.

On Novem

ber 18, 197 6, the defen dant filed a Report with

the County Court showing$12,301.92 on hand and $7 ,660.00 in disbursem

ents, with a balanc e of $4,641.50. On July 17, 1978, the defen dant, as T rustee, filed her

‘final accounting ’ with the Clerk and Master. 1 This acco unting reveals d isbursements of $11, 106.76, which was delivered to Marion Holder, successor tru s tee. A difficult y wit h this purported final ac counting is th at it is unsigned, b ut it was a pparently accepte d for filing by the Clerk and Master. To the com

plaint the d efendant filed an a nswer de nyin g al l alleged improprieties and asser

ting that al l disbursem

ents she m

ade in a fiducia

ry ca pacity were j ustified. On Octobe r 2, 1978, th e Chancello r appoint ed Melvin Spain, a C.P.A., a s Spe cial Mas ter t o ta ke a nd s tat e th e acc oun ts o f th e de fen dan t fi duc iary. The Special Master, on November 20, 1980, filed a statem ent of acc ounts which was not represented as having be en prepar

ed in acco rdance w ith accepted accounting

principles. Because t

he defe ndant kept m

eager re cords, a

nd because4

in the passag e of time recei pts, vouchers and can celed che cks were lost, the Special Master struggled to submit a Report whic h would re flect even a mod icum o f the fiduci ary’s receipts and disbursements . The st ruggle cont

inued with th e Chancellor, who concl

u ded t hat a recovery of $15,412.74 should be allowed becauseth e defendant

failed to present j ustify ing voucher s for disbur sements which aggr

egated thi s amou

nt. The defendant appeals and pres ents for review the issues that : (1) The trial court er

red in not a

pplying l aches; (2) The trial court applied inco ns istent stan dards to determ ine the propri ety of

paym ents to the Special Master vis-a-vis to the defendant, h er attor ney an d famil y; (3) The trial cour

t should not have

allowed p re-jud

gment interest. ISSUE NO. 1 W ith respect to the defense of laches, Rule 8.03 requires that aff irma tiv e defenses, of which l aches is on e, m ust be specially ple aded. In

light of the fact that this defense was not specially pleaded, we are unable to notice it further. ISSUE NO. 2 The Special Master

submitted his statement for services to the Court, which approved it , as contr

asted to the

paym ents m ade by

the defendant to her attorney and her fam ily m embers, noneof which w as approve d by the Probate C lerk or by the County Judge. We see no inconsistency her e. ISSUE NO. 3 T. C. A. 47-14-123 a

uthorizes pre-ju dgment

interest, not to exceed 10% per
ann um, in the nature of damages to be awa rded in ac cordance

with theprinciples of equity . The al lowance of s uch intere st is dis cretionary, B. F. M yers & Son v.5

Evans , 612 S.W.2d 912 (Tenn. Ct. A pp. 1980), and a jud

gment allowing i t will not be reverse d absent a s howing of a n abuse of discre tion. Otis v. Cambridge Mutual Ins. Co. , 850 S.W.2d 439 (Tenn. Ct. App. 19 92). Th e eviden ce revea ls that the defendant pai d ou t va rio us s ums t o at tor neys and to m embe rs of her family w ithout prior or subseque nt approval

and paid he rself

an ‘adv a nce’ of

$2,000.00 on a projected fee. S uch pecca dilloes may w ell have be en par tly attributed to her lawy ers, as she claim s, but obviously this reaso n may

not serve to exonerate her. But we a re c on cer ned wit h t he i no rdi nat e le ng th of t ime this com plaint languished in the trial court before it was scheduled for trial - 18 year s, and the allowanc e of 180 % interest on the recovery jars our notion of equity, as does the lackadaisical attitude of the def

endant to her fiducia

ry duti es. The evidence fair ly indicates that she paid herself and

mem bers of her family

$8,930.00 during her fiduciary tenure, and we think she should pay i nterest on this amount at the r

ate of 6%per annum for thr ee ye ars. The onera tion of 1 0% for 18 years on the full amoun t is, we believe, an abuse of

discretio n. The judgm ent is modified ac cordingly , and as m odified is a ffirmed. Costs
are a sse sse d to the part ies eve nly.

_________________ _______________ Willia m H. Inma

n, Senior Judge CONCUR:

_________________

_________________

____ Henry F. Todd, Presiding

Judge, Middle Secti on

_________________

_________________

____ Ben H. Cantrell , Judge6