### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON O CT O BE R 2 2, 200 8 S es sio n
BO BB Y TH OM P SO N , In di vid ua lly , an d as E xe cu to r of t he Es ta te of Ger trud e Tho mps on , Decea se d v . JAMES HAYWO OD THO MPSON, ET AL 

### .

Direc t Appeal from the Circ uit Court forDyerCounty No. 06-10 Allen W. Wallace, Judge

No. W2008-00489-C OA-R3-C V - Filed Mar ch 12, 2009

This case involves two brothers a nd their mother’ s estate. One brother f iled suit ag ainst the other,

c la imi ngtha

t th e de fe nd ant b ro the r a

nd his fa mil y me mbe rs wr on g fu lly

c on ve rted c e rt a in a sse ts b e lo n g in g to h is mo th e r

an d o b ta in e d o th e r a s s e ts thr o u g hun d

u e in f lu e n c e

. T h e tr ia l c o urt f

ound

no c on ve rs ion

or un du e inf

lue nc e . We a ff

ir m.

Tenn. R. App . P. 3; Appeal as of Right; Judgment of the C ircuit Court A ffirm ed

A LA N E. H I G H ERS , P.J.,W.S., delivere d the opi nion of the court, in which D AVI D R. F ARMER , J., and H OL LY M. K I RBY , J., joined.

Matthew W . Willis, Dyersburg, TN , for Appe llant
John W. Palmer, Dye rsburg, TN, f or Appe llees

OP IN IONE xhi bi t A t o t he “S t i pul at ed I s s ues ” docum ent s pec i f i ca l l y l i s t ed t hi r t y- ei ght w i t hdr awal s t hat w er e m ade 1
bet w een 199 8 and 200 4 fr om var i ou s ac coun t s ow ned, at l eas t i n par t , by G er t r ud e. Th e c hal l enged w i t hd r aw al s r anged f r om $100 t o $12, 470.

-2- I. F A C TS & P R OC EDU R A L H I S T ORY

Calvin and Ger

trude Thompson we re marrie d for many y ear s and had two sons – Hay wood, who was bor

n in 1938, and Bobby , who was born in 1941. Gertrude executed a w ill in 1978, which de vis e d a ll o f h e r e state to h e r h us ba nd , Ca lvi n, if

he su rvi ved her. In th e e ve nt t hat Ca lvi n prede cea sed Ger

trude, the will pr ovided that Hay wood and B obby

would equally

share Ger

trude’s estate. The will nominated Hay wood and B obby

as co- executors of Ge rtrude’ s estate.
Calvin Thompson died on J uly 9, 2002, and Ge rtrude die d o n M ar ch 8, 2005. F ollowing Ge rt ru de ’s de a th, B ob by fi le d a c omp la int , in div idu a lly

and a s e xec uto r o f G e rt

ru de ’s e state , a g a ins t hi s b ro t h er

Ha y wo o d , Ha y

wo o d ’s wi fe , C ar o l y

n , Ha y wo o d ’s son, Mike, and Ha y wood’s daug

hter-inlaw, The resa . The c omplaint alleg ed that the defe ndants had enga g ed in fra ud and conspira cy

and committed the tort of conve rsion in their dea lings w ith Gertrude ’s financ es, re al prope rty , and persona l property

prior to her

death. The complaint also stated that Ha y wood possessed a power

of attorney over G ertrude ’s af

fairs, a nd it alleg ed that Hay

wood bre ache d the fiducia ry duty he owe d to Gertrude in dealingwith her prope rty

.
Prior to tr ial, the par

ties ag ree d that only

four issues we re in c ontroversy , and they submitt ed a docume nt entitled “Stipulated I ssues to be De termined by the Court,” which listed the issues to be de te rm ine d a s f

oll ow s:

1. Whether or not the r eal estate convey ed by Ger trude Thompson to Hay

wood Thompson a

nd wife, Caroly

n Thompson by

deed r ecor ded F ebrua

ry 4, 2004

. . . was obtained by the Gra ntees a s a re sult of undue influenc e exerted upon Ge rt ru de Th omp so n by the Gr ante e s, the re by re nd e ri ngthe c on ve y anc e vo id so that the rea l estate would pa ss under the [will] to her s o n s , Bobby J ones Thompson and J ames Ha y wood Thompson[.]

2. Whether or not the rea l e state conve y ed by Ger trude Thompson to Hay

wood Thompson and wife , Caroly n Thompson by

deed r ecor ded De ce mber 30, 2003 . . . was obtained by the Gra ntees a s a re sult of undue influenc e exerted upon Ger trude Thompson by

the Gra ntees, ther eby

rende ring the conve y ance void so that the rea l estate would pa ss under t h e [ wi l l ] t o her sons, B obby J ones Thompson and James Hay wood Thompson[.]

3. Whe the r o r n ot a

ny of the amou nts of mon e y ide nti fi e d on Exhi bit “ A” to t his ins trum ent

. . . w e re ob ta ine d b y Ha y wo od Th omp so n a

nd wr on g fu lly 1

c on ve rt e d to his us e and

be ne fi t so tha t a

jud g me nt s ho uld

be e nte re d a g a ins tT h e term s o f t h e “S p ec i al A cc o u n t ” are n o t clea r fro m t h e rec o rd , b u t t h e b an k rec o rd s fro m t h e ac co u n t l i st 2
i t as “Spec. A c c t , ” a nd t he br a nc h m a na ge r of t he ba nk t e s t i f i e d t ha t s he r e c a l l e d s e t t i ng up t he a c c ou nt s t yl e d a s “a sp e c ia l ac c o u n t.”

-3-

H ay w o o d T h o mp s o n in f

av o r o f th e E s ta

te o f G e rtr

u d e T h o mp s on for a ny
su c h amou

nt.

4. Whether or not any far m relate d machiner

y o r eq u ipment, automobile, neckla ce, or

ring owned by Ger

trude Thompson wa s obtained by any of the Def endants a nd wrong fully

conver ted t o the use a

nd benef it of any such Def endant so that a

judgme nt should be enter ed ag ainst any such De fenda

nt in favor of

the Estate of Ger

trude Thompson for the f

air mar ket value of

any
s u c hp r o p e rt y. The “ Stipul ated I ssues” doc ument further provided that these wer e “the only issues to be submitted to the Court for dete rmination.”
At trial, Ha y

wo o d testified that he ha d lived four miles fr om his parents’ house and take n
c are of the m f or a pp ro ximate ly

fo rt y y e ars

. Ha

y wo od te sti fi e d th a t he pr e vio us ly liv e d in Me mph is, but a ft e r his fathe r ha d a hea rt a tta c k in 1967 , he mov e d ba c k to Ne wb e rn and be g an w or

kin g wi th his father on the fa rm. Hay wood said that he ha d alway s had a hor rible re lationship with hi s brother, Bobby , an d

h e s a id th a t wh e nG e rtr

u d e d ie d , h e w a s n o t o ns p e ak in g te r ms w it hh im

. H ay

w ood te sti fi e d th a t B ob by

wa s li vin g wi th h is p are nts in 1 99 4, but hi s paren ts th rew Bob by out of the ir ho us e . A c c or din g to H ay wo od , Ca lvi n h a d b y

pa ss s ur g e ry , a

nd B ob by wa s “ la id u

p in the ir ho us e dr un k. ” Ha y wo od te sti fi e d th a t wh e n Ca lvi n re tur ne d ho me fr om t

he ho sp ita l, B ob by

tol d Ca lvi n that he i nt end ed to take ov e r t he fa rm and bu ild ho us e s “ a ll o ve r t

he pla c e .” Ca lvi n a lle g e dly beca me ang ry and told him to “hit that road and don’t c ome bac k.” Ha y wood testified that Ge rtrude fu lly su pp or te d Ca lvi n in

his de c isi on . H e a lso te sti fi e d th a t B ob by ha d n ot b e e n b a c k to his pa re nts ’ house since the dis p u t e in 1994, but he ac cused B obby of stealingthings fr om the house whe n no
one wa s home. Hay

wood said that Calvin had under g one six by pass surg erie s over the y ea rs , but Bobby never visited C al v i n in the hospital. Calvin also battled Alz heimer’ s Disease for approximately

seven year s.

I n 1998, Hay

wood’s name was listed as a n au t h o ri zed signatory

on his parents’ c hecking

a c c ount, and

his name wa s add e d to his p are nts ’ s avin g s a c c ount a s e arl y a s 1 99 9. Ha

y wo od ’s name
was a lso listed on various ce rtificate of deposit ac counts owned by his parents, e ither as a

n additional

acc ount holder or a s the p ay -o n -d eath be nefic iary . Hay wood testified that ar ound 2002, money started “disappe aring ” out of his pa rents’ bank ac counts, and fa mily members suspec ted that another fa mil y me mbe r’ s e x-w if

e wa s tak inga dv anta g e of Ca lvi n’ s c on fu sio n d

ue to A lzhe ime r’ s D ise a se and ac company

ing him to the ba n k i n o rder to withdraw money . On J anuar y 10, 2002, Ger

trude

e xec ute d a

do c ume nt g ivi ngHa

y wo od po we r o f atto rn e y . T hat sa me we e k, Ha

y wo od c los e d his pare nts’ chec king and s aving s acc ounts, an I RA, and several certifica te of deposit acc ounts, and he deposited all the money

in a “Spec ial Acc ount” in his n am e o n l y , p ay able on de ath to his wife, 2 Caroly n. Hay wood testified that he deposited a ll of the money in the Special Ac count at Ge rtrude’ sH aywood t es t i f i ed t hat he c r ea t ed t he pow er of a t t or ney docum ent us i ng a c om put er pr ogr am a ft er G er t r ude 3

a sk e d h im to tak e c a re o f so m e th in g s. H e a n d G e rtru d e w e n t to a n in su ra n c e a g e n t’s o ff ic e to h a v e it n o ta riz e d

. (p. 4 1 ). A t a not her poi nt i n t he t es t i m ony, H aywood w as que s t i oned ab o u t t he i ns t r uct i ons he r ec ei ved f r om G er t r ude about

co m b i n i n g t h e acco u n t s. Fo l l o w i n g ob j ect i o n s b y B o b b y ’s at t o rney , the t ri al co u rt i n st ructed H ay w o o d no t t o t est i fy about a ny i ns t r uct i ons f r om G er t r ude r ega r di ng t hes e t r ans ac t i ons

. Tenne s s ee Code A nnot at ed s ec t i on 24- 1- 203, t he

so -ca l l ed “d ea d m an ’s st atu t e,” p ro v i d es:

In a c tio n s o r p ro c e e d in g s b y o r a g a in st e x e c u to rs , a d m in istra to rs , o r g u a rd ia n s, in w h ic h ju d g m e n ts

m a y b e re n d e re d fo r o r a g a in st th e m , n e ith e r p a rty s h a ll b e a llo w e d to te stify a g a in st th e o th e r a s to any t r ans ac t i on w i t h or s t at em ent by t he t es t at or , i nt es t at e, or w ar d, unl es s c al l ed t o t es t i fy t her et o by t he oppos i t e par t y.

I n 1990, Cal vi n a nd G er t r ude ha d ent er ed i nt o a cont r ac t w i t h H aywood’ s s on, M i ke, and M i ke’ s w i f e f or 4

t he pur cha s e of

t he 23 ac r e t r ac t i n exc hange for a $35, 025 prom i s s or y not e. I n 1999, M i ke a nd hi s w i f e di vor ce d, a nd M i ke s ubs eque nt l y fi l ed f or ba nkr upt cy. H aywood t es t i f i ed t hat t he l and s al es c ont r ac t “ di dn’ t go t hr ough” due t o t he b a n k ru p tc y

.
-4- reque st and used the money for her benef it. He said he routinely

withdrew mone y

from the Spec ial 3 Acc ount and deposited it in Ger trude’s separ ate chec king a ccount. He testified that he a lso withdrew money from the Special Account and g ave it to Ger trude in cash when she needed it. In addition, Hay wood wrote chec ks from the Spec ial Acc ount to pay various expenses and bills incurr ed by Ger trude.
Calvin died in July of 2002 at approximately ninety y ear s old. B obby did not attend Calvin’s funer al. Afte r Calvin died, Hay wood visited Gertr

ude at her home sever al t imes a day . He testified that Ger trude be g an spending ti me every day driving around to visit friends a nd family . He sa id she

never go t lost when she wa s driving a round, and she car

ried on c onversations with everyone she knew in town.
Hay wood testified that Ge rtrude kne w he would take c are of her for the r est of her

life, and he said she instruc ted him to “g et ever y thing fix ed” so that he and his family would have e very

thing wh en s h e d i ed

. Ha y

wo o d s ai d t h at Ge rt ru d e t o l d

h i mt h at s h e d i d n o twa n tBo b b y t o h av e a n y

th i n g. Hay wood testified that he kne w Ger trude had a will, a

nd that it wa s in Bobby ’s possession, but he did not know its contents. On September 14, 2003, Ger trude e x ecute d a quitclaim dee d convey ing 23.35 acr es of he r land to Ha y wood and his wife. Hay wood, Ger

trude, a nd Hay wood’s wife , Caroly n, went to an insurance ag ent’s office to have the de ed notar ized.

. This deed wa s rec orded on Dec ember 30, 2003. On J anuar y 29, 2004, Ger

trude ex ecute d another

quitclaim deed c onveying the a djo in in g sixte e n- a c re tr a c t of land , w he re Ge rt

ru de ’s ho us e wa s lo c a te d, to H ay wo od and his wife. H ay

wood, Ger

trude, a nd Caroly n ag ain went to the i nsuranc e age nt’s office to have the deed notarized. This deed w as rec orded Fe bruar y 4, 2004. Howeve r, Ger trude continued to live on the p r o p e rt y. 4
Hay wood said that during2004, he bec ame c oncern ed t hat Ger trude wa s taking too many medications, so he be g an takingher me dicine to her ever y morning and eve ry

night. Ge rtrude w as
a b l e t o dr i v e u n t i l A u g u s t3 1 , 2 0 0 4 , w h e nh e r d o c t o r a dv i s e d H ayw o o d

t o t a k e h e r c ar

aw ay. Hay wood t estified that Ger

trude became terribly mad when he took her c ar a way , and ther eaf

ter, he-5-

had to “r ide her

around e veryday

and g o with her.” Ha y wood testified that Ge rtrude ne ver
me nti on e d g oin g to v isi t B ob by

. Ho we ve r, he te sti fi e d that on one oc c a sio n he dr ov e Ge rt ru de to Bobby ’s house, a

nd Bobby told him t o “put the bitch bac k in the car and ca rry her home .”

Ger trude moved in with Ha

y wood and his wife on or about Septembe r 1, 2004. Hay wood testified that Ger

trude subseque ntly

decide d that she wa

nted to move into a retire ment cente r so that she could “ be ar ound people all of the time.” Ger trude moved to a re tirement ce nter in January of 2005, and she die d on Marc h 8, 2005, at the ag e of e ighty -seve n.

Ger trude’ s m ed i cal r ecor ds were introduced at trial. I n 1997, her phy sician noted that Ger trude “ continues to do quite well. . . . She re ally doesn’t have any

outstanding pr oblems and she ha s r e a c he d th e a g e of

79 and loo ks and fe e ls g re a t.” In 19 99 , a t the a g e of e ig hty -o ne , Ge rt ru de fi rs t repor ted havingdecr ease d rec ent memory when s he suff

ere d from ver

tigo. Anothe r re cord f

rom 1999 ref lected that Gertrude had dec rea sed re cent memor y , but he r remote memory , judgme nt, and ins i gh t wer e indicate d as normal. No subse quent memory problems wer e noted until 2002, when G e rt r u d e ’ s r e c o r d s r e f

l e c t e d t h a ts h e s u f

f e r e d f r o m d e p r e s s i o n , an x i e ty , an d d e c r e a s e d

m e m o r y

. In late 2003, Ge rtrude’ s medical re cords noted me mory loss , d ec reased cognitive function, “mind g e tti ng wo rs e ,” and de me nti a

. Ho we ve r, a July 2, 20 04 me dic a l r e c or d s tate s, “ Patie nt c on tin ue s to do rema rkably well – her

memory loss has not prog resse d – she still drives her own car – she neve r g ets lost, etc. – her

son doses out her meds e very morning

. ” T h e J u l y 2004 rec ord stated that Ge rt ru de ’s ma

jor pr ob le ms r e vo lve d a

ro un d h e r m

us c ulo skel eta l c omp la int s, su c h a s d ia be tic neuropathy

and osteoporosis. A subsequent rec ord from October 15, 2004, indicated that Ge rtrude

was s u f f e r in g f r o m d e me n ti a an d s tate d , “ H e r f ami ly is ti g h tl y r e g u lati n g h e r me d ic in e s an d not letting he r drive or

drive to the drug store. She come s t o day with numerous complaints. She complains about her

back, she insists on being instit utionaliz ed in a nursinghome (fa mily ref uses).”
Hay wood testified that Ge rtrude ha d short-term memor y loss on a couple of occa sions when sh e wo uld

take too muc h of he r pa in me dic a tio n, but he ins ist e d th a t th e re wa s n oth ingwr on g wi th Ge rt ru de ’s min d. He sa id s he did su ff e r from dep res sio n w hil e Ca lvi n h a d A lzhe ime r’ s D ise a se prior to his death, but he c laimed that this improved afte r Calvin died.

B ob by Th omp so n a lso te sti fi e d at tr ia l. H e ha d b e e n r e tir e d s inc e 19 98 , b ut h e pr e vio us ly worke d building houses. B obby testified that he wa s living with his pare nts in 1994, but he insis ted that he wa s n ot t

hr ow n o ut o f t

he ho us e . B ob by

de nie d s ayingthat he int e nd e d to tur n th e fa rm int o a subdivision, and he claimed that he si mply moved out of hi s pare nts’ house i n 1996. Bobby was asked if he vis ited Calvin in the hos pital when he had six by pass surg erie s, and he sa id that he visited him whe n he had the first surg ery

. Bobby testified that his relationship with Gertr ude wa s “just fine in my book.” He testified that Ger trude would come to visit him whe n she wa s out driving a round. He sa id, “ Mo the r wa s sti ll dr ivi ng aro un d and do ing e ve ry thi ng

. No thi ngwa s w ro ngwi th h e r, jus t her mind wa s off.” Bobby testified that the last time h e v i s i t ed h is mother’s house wa s in J uly of 2004. He said he did not know whe n Ger trude moved into Ha

y wood’s house, a

nd he said no one told him when she moved into the retire ment cente r. B obby said he did not visit Gert ru d e in the-6-

hospital just before s h e d i ed beca use he did not know she w as there . He testified that he did not attend Calvin’s fune ral or G ertrude ’s fune ral, stating , “I don’t g o to funera ls.”

B ob by te sti fi e d th a t Ca lvi n o wn e d tw o tr a c tor s w he n h e wa s ali ve , as we ll as va ri ou s it e ms of fa rm equipment. Bobby said he did not know what ha ppened to the tr actor s, but he claimed he saw some of

the equipment on the far

m a s late as 2001. B obby testified that when he was g rowing up, his mother alway s wrote c hecks f or purc hases a

nd did not carr

y larg e amounts of c ash.
Bobby and Ha y wood’s first c ousin , K e nn eth Glidewe ll, also testified at trial. He te stified that he went out to eat catfish wit h Ger trude nearly ever

y Fr iday , and Ge rtrude w ould drive her car and

e ith er pi ck hi m up on the wa y or me e t hi m th e re . H e sa id t he ir we e kly me e tin g s c on tin

ue d unti l shortly befor e she move d into the retireme nt center , and Ge rtrude a lway s ca rr i ed on normal

conver sations. Mr. Glidewell desc ribed Ge rtrude a s “a w oman of he r own,” stati n g t h at she wa s “pre tty independe nt” and “ never did ask nobody

for he lp or any

thing.” He a lso describe d Ger trude

a s s t r o n g
- w i l l e d

an d h av i n g “ a

m i n d o f h e r o w n

. ” M r

. G l i d e w e l l s t a t e d th a t H ayw o o d an d C ar o l yn
wer e at Ge rtrude’ s house a lot, and he said he also helped to drive Gertrude around when she was not allowed to drive any

more. Mr. Glidewell said he had seve ral c onversations with Gertrude a bout how she ha d her a ffa irs in order.
Cathy Ba ucom testified that she w as employ ed to assist in caring for Calvin whe n he had Alzheimer’s Disea se. Ms

. Ba ucom s aid t hat she wor

ked for Ger trude thre e to four da

y s per we ek, doing housework, helping to bathe Calvin, or just sitting with Ca lvin f or hours at a ti m e. Af

ter Calvin’s death, Ms. B aucom we nt out to eat with Ger trude occasionally , and Gertrude w ould drive them. Ms. Ba

ucom testified that she also saw Gertrude at various place s around town. Ms. B aucom
sa id s he ne ve r n oti c e d G e rt ru de ex peri encin g any

pr ob le ms w ithsh or

t- te rm me mor y los s. Ms. Ba ucom said she talke d to Gertrude at a loca l gr ocer y store just a fe w m o n t h s b efor e she pa ssed

awa y , and Ge rtrude w as “just her same old self.” She descr ibed Ger trude a s a strong -willed per son who was de termined to do thing s for herself. Ms. Ba ucom testified that she ha d never seen B obby at Ger trude’s house , while she wa s car ing f or Calvin or af

ter his death. She testified that Hay wood

and Caro ly n w ou ld c ome to G e rt

ru de ’s ho us e of

te n, to h e lp w ithCa lvi n, to t ake Ge rt ru de ’s c ar t o g et it service d, or g o with Gertrude to the doctor.

Ha y wo od and Caro ly

n’ s d a ug hte r, L isa

F le tc he r, te sti fi e d a

bo ut w itn e ssi ngargume nts betwee n Bobby

and his pare n t s wh en Bobby was drinking , including the big a rgument betwee n Bob b y an d h is p ar e n ts w h e n Ca lv in k ic k e d h im o u t o f th e h o u s e

. M s

. F le tc h e r te s tif ied that she visited Gertrude in the months before she died, a nd Ger trude’s “ mind was fine.” She said Ger trude

“ ha d a min d of he r ow n” and de sc ri be d h e r a s in de pe nd e nt, ha rd -h e a de d, and

de te rm ine d. She sa id “whe n she made her mind up,

. . . that’s the way it was g oing to be .” Ms. Fletche r said she did not observe any

signs that Ge rtrude suf

fer ed fr om memory

loss or dementia.
Hay wood’s son, Mike Thompson, also testified about witnessing ar g uments betwee n Bobby

and his pa re nts . H e sa id m os t of

the argume nts we re a

bo ut B ob by dr ink ing and

te lli nghis pa

re nts what to do. Mike testified that he boug ht a trac tor from Calvin in 1992 for $5,000, a nd he purc hased-7-

two piece s of far

m e quipment from Ger

trude a fter Ca lvin died. Mike said he still had the ca ncelled chec ks from the purc hases, a nd he said he never

rec eived a

ny equipment that he did not buy . Mike testified that he sa

w Ger trude pra ctically

ever y day afte r Calvin died, and he said she “kne w what she wa nted to do” even when she ma de the de cision to move to the assisted living fa cility . Mike testified that he and his wife c urre ntly lived in the house whe re G ertrude and Calvin had lived. He said he e ntere d into a contra ct to buy the prope rty

from Ha y wood af ter Ge rtrude die d.
Mike Thompson’s wife, T here sa, testified that she a nd her husba

nd started r emodeling Ger trude’s house around the end of 2004, while Ger trude was living with H ay wood, bec ause the y int e nd e d to e ve ntu a lly

mov e int o the ho us e . T he re sa te sti fi e d th a t sh e saw G e rt ru de e ve ry

da y un til she moved to the re tirement ce nter, a nd she said Ger

trude would c ome to the house while the y wer e remode ling it to see the work t h at h ad been done . There sa said she did not notice a ny signs of memory loss or dementia. The resa testified that Bobby never came to the house looking for Ge rtrude wh ile the y we re re mod e lin g it, and sh e sa id that she me t Bo bb y fo r the fi rs t time wh e n h e c ame to the house a fter G ertrude died. Ther esa de scribed G ertrude as “ve ry deter mined” and sa id Gertrude “did eve ry

thing she wanted to do” and did nothing she did not want to do.

J ohn Uitendaa l testified that he notar ized the two deeds e x ecute d by Ger trude in September of 2003 and January

of 2004. Mr. Uitenda al said he ha d known Ger trude since he was a

bout five y ear s old from living in the same small town, and Ge rtrude kne w his pare nts and g randpa rents. He said on both occa sions when t h e d ee d s wer e notar ized, Hay wood drove Ger

trude to his insurance office , and he c ame outside to mee t them and notarize the de ed. Mr. Uitenda al said Ger trude a sked him a bo ut h is pa

re nts a nd ho w h is f

amil y wa s d oin gand

ha d a g e ne ra l so c ia l c on ve rs a tio n. He sa id she appe are d to be “at herself mentally ,” and he would not have notarized the dee ds if he suspec ted that he r m e nta l st a te wa s n ot c le ar. Mr . Ui ten daal sai d he sa w G e rt ru de sig n th e de e ds on

bo th

occa sions, and he did not observe any ty pe of c oerc ion.

Ha y wo od ’s wi fe , Caro ly

n, te sti fi e d a s we ll. Caro ly n te sti fi e d th a t B ob by

wa s li vin g wi th h is pa re nts wh e n h e wa s 5 2 o r 5 3 y e ars old , an d alw ay s drunk , an d Cal vin and Ge rt ru de a sk e d h im t o leave . Caroly

n said that she and H ay

wood helped G ertrude in any way that they could. She said that Ge rt ru de too k p a in p ill s b e c a us e sh e su ffered fro m di a be tic ne ur op a thy

and he r b od y e ve ntu a lly “beg an to play o u t , ” b u t “ther e wa sn’t any thing wr ong with her mind.” Car oly n said she did not believe that Gertrude suffe red from memory loss or dementia. She acknow ledg ed that Ge rtrude ma y have suf fer ed fr om some depre ssion while car ing f or Calvin when he had Alzheimer’s Disea se, but she said it later improve d.

Caro ly n te sti fi e d th a t ne ith e r s he no r H ay wo od did any thi ngto t ry to c on vin c e Ge rt

ru de to deed the proper

ty to them. She said she had ne ver obse rved H ay wood trying to tell Gertrude what to do and explained, “ You don’t tell [Ger trude] what to do. You couldn’t tell h er wh at t o do.” Caro ly n tes tif ie d th a t an atto rn e y

dr e w u p th e de e ds , b ut t

hat G e rt ru de wa nte d M r. Ui te nd a a l to notarize the deeds beca

use she knew him. Caroly n said she was in the vehicle with Hay wood and Ger trude whe n they

went to M r. Uit endaa l’s office to sign the deeds. Caroly n also testified aboutM s

. Coza r t t es t i f i ed t hat a not her doc um ent ha d pr evi ous l y be en exe cut ed on t he s am e che cki ng a cc ount , on 5
Fe br uar y 6, 2001, w hi ch adde d H aywood as t he pa y- on- dea t h bene f i ci ar y. H ow eve r , for s om e r ea s on, t hat doc um ent

w as not ent er ed i nt o t he bank ’ s co m pu t er sys t em i n order t o add t he pay-on-deat h des i gn at i on

. M s

. Co zar t t es t i f i ed t hat

s he s ubs equ en t l y q u est i o ned G er t r ude about t he abs enc e of a pa y- on- dea t h be nef

i ci ar y f or t he ac count , a nd s he and G er t r ude exe cut ed t he s ec ond s i gnat ur e ca r d i n 2004 nam i ng H aywood a s t he bene f i ci ar y be ca us e “we w ant ed t o m ake

s ure t hat t here w as a benefi ci ar y on t he acc ou nt

. ” A t t r i al , Bobby i nt r oduce d a r epor t f r om a ha ndw r i t i ng expe r t , w hi ch s t at ed t hat G er t r ude’ s s i gnat ur e on t he 20 01 s i gn at ure car d w as “pr ob abl y” w r i t t en by H ayw oo d. H ow ever , no o ne t es t i f i ed abou t t he ci r cum s t ances
surrou n d i n g t h e 2 0 0 1 s i g n at u re card’s ex ecu t i o n

. M s. C o zart s ai d s h e d i d no t recal l t h e ex ecu t i o n of t h e 2 0 0 1 s i g n at u re
c a rd , b u t t h a t sh e w o u ld n e v e r k n o w in g ly a llo w so m e o n e to fo rg e a d o c u m e n t.

-8- the family member’ s ex-wife g oing to the bank with Ca lvin to withdraw money befor e Ha

y wood set up the Special Ac count in his name.

The c ourt also hea

rd testimony

from L aneta

Coz art, the br anch ma

nag er and assistant vice president of the l ocal bank branc h wher e Gertrude did her banking

. Ms. Coz art testified that she had known Ger

trude a nd Calvin since she beg an working at the bank in 1978. Ms. Coz art testified a bout a sig nature car d executed by Ger trude on September 21, 2004, which named H ay wood as the pa

y -ondeath be nefic iary

of a c heckingacc ount. Ms. Coz art testified that she met with G ertrude when she sig ne d th e sig natur e c ard , a nd Ge rt ru de did no t a pp e ar t o h ave any ty

pe of me nta l in c a

pa c ity . M s. Coz art said, “ Italked with her specific ally

about exactly

what we wer e doing to make sure that she

un de rs too d th e wa

y we we re sty

lin g the a c c ount. ” Ms. Coza rt te sti fi e d th a t H ay

wo od wa s w ith Ge rt ru de , but she sa id Ge rt

ru de did no t app e ar to b e c oe rc e d in any wa y or inf lue nc e d b y

him . M s. Coz art testified that i n h er d ea lings with Ge rtrude ove r the y ear s, Gertr ude alwa y s seemed “ very str on g min de d. ” She sa id G e rt ru de “ kn e w wh a t sh e wa

nte d and wo uld te ll me and the n w e wo uld do it accor dingly .” 5

Ms. Coza rt a lso te sti fi e d that she ha d obs e rv e d Cal vin c omi ng int o the ba nk pr ior to h is d e a th with the afor ementioned e x -wife of a f amily mem b er. Ms. Cozart testified that she r emember ed setting up another acc ount sty led as a “special account,” but she could not rec all the circ umstances reg ardingits creation.

The trial c ourt’s orde r conta ined twenty -nine pa g es of f indings of f

a c t a n d c o n c lusions of law. Th e tr ia l c ourt fo un d that Ha y wo od ha d a ssi ste d in the c are of bo th his pa re nts fr om 19 67 un til the ir de a ths , w hil e B ob by

ha d n ot b e e n to his pa

re nts ’ h ome sin c e 19 94 wh e n his p are nts thr e w h im o ut. The c ourt specif

ically found that B obby

told his parents, afte r Calvin’ s hear t surg ery , that he intended to take over

their fa rm and build house s ever

y wher e. The court found that Bobby subsequently

went to his parents’ house when they wer e not home to steal a horse trailer. The c ourt found that B obby did not visi t Cal v i n or Ge rtrude in the hospital, a nd it noted the incident when H ay wood took Ge rt ru de to B ob by ’s ho us e and B ob by tol d h im t o take he r h ome . T he c ourt c on c lud e d, “ I t is obvious from the evide nce in this ca se that the plaintiff, Bobby Thompson, acte d in a shamef ul way towards his par ents and had alienate d himself from his pare nts.” The c ourt also noted that B obby did not attend either of

his parents’ f

unera ls and testified that he simpl y does not g o to funera ls. TheT h e c o u rt n o te d B o b b y ’s in siste n c e th a t t h e 2 0 0 1 sig n a tu re c a rd , w h ic h n a m e d H a y w o o d a s th e p a y -o n -d e a th 6
bene f i ci ar y, w as f or ged by H aywood. H ow eve r , t he cour t f ound t hat G er t r ude’ s e xec ut i on of t he s i gnat ur e ca r d i n 2004

nam i ng H ayw oo d as t he pay-on-deat h ben efi ci ar y “m akes t he i s s ue of f orger y a m oo t i s s ue. ”

-9- court found that “ [t ]hi s poor excuse for not attending the funer als of his pare nts is a true indication of his complete disrespec t f or his pa rents while at the same time seekingtheir prope rty in this case.”

Th e tr ia l cou rt no ted H ay wo od ’s te sti mony

that th e tw o d e e ds we re pr e pa re d b e c a us e Ger trude wa nted his family

to have e very

thing and Bobby to ha

ve nothing. The court a lso mentioned Hay wood’s testimony

that Ger trude wa nted his fa m i l y t o have e very thing be cause she knewthey

wo uld a lw ay s ta ke c are of he r. Th e c ourt

fo un d th a t B ob by ’s sh ame fu l a c tio ns tow ard Ge rt ru de , in addition to Ge rtrude and Calvin’s isolation fr om B obby , supported “a strong infere nce that Gertrude Thompson wanted Ha

y wood Thompson to have ever y thing to the e x clusion of B obby Thompson.”
Reg ardingGer

trude’s me ntal state, the trial c ourt discussed the testimony from var ious witnesses about Ge rtrude being strong -willed and deter mined even up until the time that she e ntere d the re tirement ce nter. The court discussed t h e fa ct t hat Ger trude c arr ied on g ener al social

conver sations w ith Mr. Uitendaa l pr ior to executing the two de eds, and Mr . Uitendaa l testified that she appe are d to be mentally competent on both oc casions and not inf luence d by Hay

wood. The trial court noted the J uly

7, 2004 medical r ecor d, which stated that Gertrude never g ot lost driving, and that Ger trude wa s able to drive he rself until August 31, 2004. The court discussed the fa ct that eve n
a ft e r G e rt ru de ’s dr ivi ngpr ivi le g e s w e re take n a wa y , s he sti ll w e nt o ut t o e a t a lot , k ne w the pe op le she met, and car

ried on normal conver sations. The court discussed Ms. Coz art’s te stimony , whom t h e c o u rt fo u n d

t o b e “ a n u n b i as edan d

d i s i n t er es t edwi tn es s , ” t h at Ge rt ru d e w as al wa y s s t ro n gwilled, knew what she wante d, and made her w ishes known. The c ourt also discussed he r testimony that when she met with Gertrude on September 21, 2004, G ertrude did not appear to have any

mental inc a pa c ity or be inf lue nc e d b y

Ha y wo od , an d th e fa c t th a t G e rt ru de un de rs too d th e pa

y -o n- de a th pr ov isi on of the a c c ount. Th e c ourt

a lso fo un d that Ge rt

ru de “ ma de he r ow n d e c isi on ” to m ov e to 6 the assisted living f

acility in J anuar y of 2005.

The c ourt quoted the four “Stipulated I ssues to be De termined by the Court,” which the parties submitted prior to trial. The first two issues involved the undue influe nce c laim reg arding the two dee ds. The cour

t found that a c onfidential re lationship between G ertrude and Ha y wood was

c re a te d u po n ex ecut io n of th e po we r o f atto rn e y on Janu ary 10 , 2 00 2, but th e c ourt

no te d th a t it found “no c lear evidenc e in this ca se that Ha y wood Thompson exercised his rig ht to use the Power of Attor ne y .” Ne ve rt

he le ss, the c ourt fo un d that “[t]he c le ar an d co nv inc inge vid e nc e in t his c a se does not support a findingthat t h e fr ee ag ency of Ge rtrude T hompson was destroy ed and w as
re pla c e d b y

the wi ll o f H ay

wo od [.]” Th e c ourt

fo un d th a t G e rt

ru de e xec ute d th e tw o d e e ds “ in

acc ordanc e with her

desire to e x clude he r son, B obby Thompson, from her

estate.” The c ourt found that the transa ctions were “fa ir and in ac corda nce w ith the wishes o f Ge rt ru d e Thompson.” The court c oncluded by

stating that “[i] t is the finding of the Court, by clea r and c onvincing evidenc e[,] that Hay wood Thom pson did not abuse the confide ntial relationship that exis ted betwe en him and his mother, Ger

trude Thompson.”-10-

Reg ardingthe third issue, the court specific ally addre ssed ea ch one of the thirty -eig ht chec ks and withdra

wals at issue and found no evidenc e of fra ud, wrong ful conver sion, or wrong doing on the pa rt of any of the de fe nd ants . The c ourt fo un d th a t H ay wo od e sta bli sh e d th e “ Spe c ia l A c c ount”

as a se parate depository

for money

that belong ed to Ger

trude, to be use d for he r benefit, and that Hay wood had submitted a “ complete a ccounting ” for the “Spec ial Acc ount” in t h e voluminous fi na nc ia l do c ume nts he su

bmi tte d at tr ia l.

As for the persona l property at issue, the cour

t add re s s ed ea ch of the a lleg edly conver ted items and found no evide nce of wrong doing or

conver sion. Base d on these findings, t he trial c ourt dis mis se d th e c omp la int

fi le d b y B ob by . B ob by

tim e ly fi le d a no tic e of a pp e a l.

II. I SSU ES P R ESENTED On appe al, Bobby

asser ts that the trial court e rre d in finding no undue influence . Bobby claims that the trial cour

t misconstrued Tenne ssee law on undue influenc e and e rre d in applying the law to the fa cts of this c ase. Specifica lly , Bobby argues on appe al that Hay wood should have be en requir ed t o prove the fairne ss of ea ch of the transac tions he challeng ed at tria l (i.e., the de eds, the thirty -eig ht bank ac count withdraw al s , and the pe rsonal prope rty dispositi ons). B eca

use B obby challeng ed the de eds on the ba sis of undue influenc e, we ag ree with Bobby ’s contention that Hay wood was r equire d to prove the f airne ss of these tra

nsactions. H o we v er, we find that the evidenc e supports the t rial court’s conclusion t hat t he dee d transac tions were f air a nd not the product of undue influe nce. A s for the r emainingtransac tions involving the thirty -eig ht withdrawa ls and the persona l pr operty , the “Stipulated I ssues to be Deter mined by the Court” limit ed the trial court’s consideration to whether these transac tions were “wrong fully conver ted” to the us e and be nefit of Hay wood and his fa

mily

. The trial court found “no evidenc e of fra ud, wrong ful conver sion or any wrongdoing” by

the def endants with re g ard to these transac tions. We will review the trial court’ s conclusion with regard t o t h es e tra nsactions, but we de cline the invitation to revieweac h of the tr ans a c tio ns us ing an und

ue inf lue nc e ana ly sis be c a

us e the iss ue wa s n ot p ro pe rl y su bmi tte d at tr ia l. See Jo y c ev . Co lli ns , No. E2005-01177-COA- R3-CV, 2006 WL 359757, at *7 (Tenn. Ct. App. F eb. 16, 2006) (r efusingto consider on a ppeal whe ther a

d ee d wa s ex ec u ted as the r esult of undue inf lue nc e wh e n t he pl ain ti ff ’s c omp la int

on ly a lle g e d und

ue inf lue nc e wi th r e g ard

to a se pa rate transac tion).

III

. S TA N D A R D O F REVIEW On appe al, a trial court’s factua l finding s are presumed to be cor rec t, and we w ill not overturn t h o s e factual finding s unless the evidenc e pre ponderates ag ainst them. Tenn. R. App. P. 13(d) (2 00 8) ; Bo

ga n v. Bogan , 60 S.W. 3d 72 1, 72 7 ( Te nn . 2 00 1) . F or the e vid e nc e to p re po nd e rate ag ainst a trial cour

t’s finding of fa ct, it must support another finding of fa ct with g reater c onvincing-11-

ef fe ct

. Watson v. Watson , 1 9 6 S

. W

. 3 d 6 9 5 , 7 0 1 (T en n

. C t

. Ap p

. 2 0 0 5 ) ( ci t i n g W a lk e r v . Sidney Gi lre ath & As so cs. , 40 S .W.3d 66 , 7 1 ( Te nn . Ct . App . 2 00 0) ; The Realty Shop, Inc . v. RR W estminster Holding, Inc. , 7 S.W .3d 581, 596 (Tenn. Ct. App. 1 9 9 9 )). When the r esolution of issues depends up o n

th e tr uthfulness of witnesses, the fac t-finder , who has the oppor tunity to observe the witnesses in their manne r and demea nor whil e testi fying, is in a far better position than this Court to decide those issues. Mach. Sales Co., In c. v. Diamon dcut Forestry Prods., LLC, 102 S.W .3d 63 8, 64 3 ( Te nn . Ct . App . 2 00 2) ; see also Bry ant v . Ba pti st H e alt h Sy s. Home Careof E. T e nn. , 213 S.W .3d 743, 750 (Tenn. 2006) . The we ight, f aith, and cr edit to be g iven to a witness ’s testimony lies, in the first instance, w ith the trier of f act, a nd the cr edibility

acc orded by

the trial judge will be g iven g reat weig ht by

the appe llate cour

t. Id. “[A]ppellate c ourts will not re- evaluate a tria l judge ’s assessment of w itness cred i bility absent c lear

and convinc ing e vidence to the contra ry .” Wells v. Te nn. Bd. of

Re ge nts , 9 S.W .3d 779, 783 (Tenn. 1999) . We reviewa trial c ourt’s conc lusions of law under a de novo standard upon the rec ord with no presumption of cor rec tness. Union C

arbide Corp. v. Huddleston , 8 5 4 S

. W

. 2 d 8 7 , 9 1 ( T e n n

. 1 9 9 3 ) ( ci t i n g Es tate of A dk ins v . W hite Con so l. Indus., Inc

. , 788 S.W .2d 815, 817 (Tenn. Ct. App. 1989))

.
IV. D I S CUS S I ON

A. Undu e Influence and the Two Deeds

Be fore the trial cour

t, Bobby contende d t h at t he re al estate conveyed to Hay wood and Caroly n by the dee ds executed on September 14, 2003, and J anuar

y 29, 2004, “wa s obtained by the Gra ntees a s a re sult of undue influence exerted upon Ger trude Thompson by

the Gra ntees, ther eby rende ring the conve y ance void so that the rea l estate would pa ss under the [will] to her sons[.] ”
“Courts apply

the doctrine of undue influe nce ‘ when one party , s u ch as a g rante e, is in a po sit ion to e xer c ise un du e inf

lue nc e ov e r t

he min d a nd the wi ll o f a

no the r, su c h a s a

g ra nto r, du e to the exis tence of a c onfidential re lationship.’” In re Estat e of Pric e , 2 73 S.W. 3d

11 3, 12 5 ( Te nn . Ct

. Ap p

. 2 0 0 8 ) ( qu o t i n g Br own v . W e ik, 725 S.W .2d 938, 945 (Tenn. Ct. App. 1983)). “[A] deed to a g rante e who is a c onfidential re lationship with the g rantor c an be se t aside if the g rante e has e x erte d undue influenc e on the g rantor to pr ocure the dee d.” In re Con servatorship of Groves , 109 S.W .3d 3 1 7 , 3 5 1 (T en n

. C t

. Ap p

. 2 0 0 3 ) ( ci t i n g Br own , 725 S.W .2d at 945). The underlying theory of the doctrine of

undue influenc e is that the donor was induced by various means to ex ecute an instrument that, in rea lity , was the w ill of another substituted for that of the donor. D e

L a p p v . P r att , 152 S.W .3d 530, 542 (Tenn. Ct. App. 2004). Undue influenc e “c onsists of ex ertingenoug h influence

or pr e ssu re to b re ak d ow n a pe rs on ’s wi ll po we r and to o ve rc ome a

pe rs on ’s fr e e a g e nc y

or fr e e wi ll

so tha t t h e p e r s o nis u n a

b le to k e e p f

r o m d o in g w h a t h e o r

s h e w o u ld

n o t o th e r w is e h av e done.” Rawlings v

. John Hancock Mut. Life Ins. C o. , 78 S.W .3d 291, 301 (Tenn. Ct. App. 2001) ( citing Bills v. Linds ay , 909 S.W. 2d 43 4, 44 0 ( Te nn . Ct . App . 1 99 3) ; Hollis v. Thomas , 303 S.W .2d 751, 758 (Tenn. Ct. App. 1957))

. “Courts should exercise the utmost car e and caution before c oncluding that th e so le mn a c t of a de c e de nt, su c h as e xec uti on of a de e d o r w ill , s ho uld

be inv a lid a te d; b ut, it is equally important that they be vigilant to pr event imposit ion upon those who are weak, fra il, and-12-

vulnera ble to the influenc e and importuniti es of others who exercise a dominant positi on over the m.” Richm ond v. Chri

stian , 555 S.W .2d 105, 109 (Tenn. 1977)

.
In T e n n e s s e e , w h e r e t h e r e i s a c o n f i d e n t i a l r e l a t i o n s h i p b e tw e e np art i e s , f o l l o w e d b y a transac tion where in the dominant party re ce i v es a benefit from the othe r par ty , a pre sumption of

un du e inf lue nc e ari se s th a t ma

y on ly be rebut ted by

c le ar a nd c on vin c inge vid e nc e of

the fa ir ne ss of the tra nsaction. Chil

dress v . Cur rie , 7 4 S. W. 3 d 3 2 4 , 3 2 8 ( T e n n

. 2 0 02) (c iting Matlock v

. Simpson , 902 S.W .2d 384, 386 (Tenn. 1995) ). A confidential relationship is any relationship t hat g ives one pe rson dominion and control over another

. Id. T h er e are two source s of conf idential relationships: (1) leg al c o n f id e ntial relationships, and (2) family and other rela tionships. In reEst

ate of Bre v ard , 2 1 3 S

. W

. 3 d

2 9 8 , 3 0 2 (T en n

. C t

. Ap p

. 2 0 0 6 ) ( ci t i n g Matlock, 902 S.W .2d at 385-86). A no rm a l fa

mil y re latio ns hip be tw e e n a pa re nt and an a du lt c hil d, sta nd ing a lon e , do e s no t g ive ri se to a conf idential relationship. In re Estat e of Pric e , 2 7 3 S. W. 3 d

a t 1 2 5 ( c it ing Ia co me t ti v. Fras sin e lli , 494 S.W .2d 496, 499 (Tenn. Ct. App. 1973)) . Family and other

relationships are not considere d confide ntial relationships unless there is proof of domination and contr ol. In reEst ate of B rev ard , 2 1 3 S

. W

. 3 d

a t3 0 3

. I nt h a ts i tu a t i o n , th e i s s u e o f w h e th e r a c o n f i d e n t i a l r e l a t i o ns hip

arose is a question of fact. Id. L eg al conf idential relationships, on t he other hand, ar e conf

idential pe r sebeca

use of the le g al status o f t h e p ar t i es. Id. (c i t i n g Kelley v . Johns , 96 S.W .3d 189, 195 (Tenn. Ct. App. 2002)). For example, a confide ntial r elationship arises as a matter of law whe n the dominant party

has bee n g rante d an unre stricted powe r of attorney

. Chil dress , 74 S.W .3d at 328-29 (c i t i n g Matlock, 902 S.W .2d at 386). How ever , when a n unrestric ted power

of attorne y has bee n executed but not y et exercised, a confide ntial rela

tionship does not automatically arise a s a matter of law. Id. at 330. Good s ense dictates t hat dominion and control do not exist solely beca use of the exis tence of an une x erc ised power of attorne y

. Id. at 329.

I n this case, the tr ial court found that “[a] confidential relationship betwe en Ge rtrude Thompson an d h e r s o n , H ay w o o d T h o mp s o n [, ] w a s c r e a te d u p o n e xe c u ti o n o f th e Po wer of Attorney , althoug h there is no clea r evidence in this case that Hay wood Thompson ever

exercised his ri g ht t o u se the po we r o f a tto rn e y .” On a

pp e a l, t he pa rt ie s d isp ute wh e the r H ay wo od a c tua lly exercised the power of attorney subsequent to i ts ex ecution on January 10, 2002. Hay

wood sig ned

va ri ou s d oc ume nts by wr iti ng his mot he r’ s nam e and the n his name dir e c tly be ne a th i t, b ut h e did not specifica lly

indicate that he was e x erc ising his authority as powe r of attorney . Howeve r, we need not addre ss the issue beca use Ha y wood’s answ er to the c omplaint stated, “it is admitted that the Def endant J ames Hay

wood Thom pson was a fiduciar y throug h the execution and use of thepower of attorney executed by his mother Ger trude Thompson[.] ” (e mphasis added)

. We are not awar e of any point in the tria l court proc eeding s when Ha y wood disputed the fa ct that he e x erc ised the powe r of attorne y . There fore , we f ind that a conf

idential relat i o n s hip exi sted betwe en Ha y wood and Ger trude.

“Onc e a c onfidential re lationship has bee n shown and a presumption of undue influe nce arises, the burden shifts to the dom inant party to rebut the presumption by proving the fairness of the transac tion by clea

r and c onvincing evidenc e.” Chil dress , 7 4 S

. W

. 3 d

at 3 2 8 (c i t i n g Matlock, 902 S.W. 2d a t 38 6; Gordon v. Thornton , 584 S.W. 2d 65 5, 65 8 (T e nn . Ct. App . 197 9) ). I n o the r w or ds ,T he pres ence of s uspi ci ou s ci r cum s t ances m ay w ar r ant t he concl usi on t hat t he pers on al l egedl y i nfl uenced 7
d id n o t ac t fre e ly a n d in d e p e n d e n tly

. I n r e Es t at e of M addox
, 60 S. W

. 3d 8 4, 88 (Ten n. Ct

. A pp

. 200 1). Such

c irc u m sta n c e s o fte n in c lu d e :

(1 ) th e e x isten c e o f a c o n fid e n tial re la tio n sh ip b e tw e e n th e tes ta to r a n d th e b e n e fic ia ry ; (2 ) th e tes ta to r’ s p h y sic a l o r m e n ta l d e te rio ra tio n ; (3 ) th e b e n e fic ia ry ’s a c tiv e in v o lv e m e n t i n p ro c u rin g th e w ill ; (4 ) se c re c y c o n c e rn in g th e w ill ’s e x isten c e ; (5 ) th e tes ta to r’ s a d v a n c e d a g e ; (6 ) th e lac k o f in d e p e n d e n t ad v ic e in p re p a rin g th e w ill ; (7 ) th e tes ta to r’ s ill iter a c y o r b lin d n e ss; (8 ) th e u nju st o r u n n a tu ra l n a tu re o f th e w ill ’s ter m s; (9 ) th e tes ta to r b e in g in a n e m o tio n a lly d istra u g h t state ; ( 10) di s cr epa nci es be t w ee n t he w i l l a nd t he t es t at or ’ s e xpr es s ed i nt ent i ons ; a nd (1 1 ) fr a u d o r d u re ss d ire c te d to w a rd th e tes ta to r.

P a ri sh , 2 0 0 8 W L 5 1 9 1 2 9 1 , at * 6 . T h e re is n o c e rta in ty p e o r n u m b e r o f su sp ic io u s c irc u m sta n c e s th a t m u st e x ist t o in v a lid a te a tra n sa c tio n

. I d. The i s s ue s houl d be de ci ded by appl yi ng s ound pri nci pl es and good s ens e t o t he f ac t s of

e a c h c a se

. I

d. ; s ee al s o I n r e Es t at e of M addox
, 60 S. W

. 3d a t 89.

-13- the par ty trying to rebut the pre sumption of undue influence must establish by clea r and c onvincing evidenc e “that the transa ction was fa ir and not proc ured through undue influenc e.” P a r i s h v . K e mp , No . W2 00 7- 02 20 7- CO A- R3- CV , 2 00 8 WL 51 91 29 1, a t *5 (T e nn . Ct . App . D e c . 1 1, 20 08 ); se e als o In re Estat

e of Turner , No. W2004-02123-COA-R3-CV, 2005 WL2086028, at *8 (Te nn. Ct. App. Aug . 30, 2005) (“ the burde n shifts back to the defe ndants to show the absenceof undue influe nce” ). The stre ng th of the pre sumption of undue influence varie s with the circ umstances of eac h case , and there fore , “the stre ng th of the re butting evide nce must var y proportionally .” Ric hmond , 555 7 S

. W

. 2 d at 1 0 8 (c i t i n g Ro be rts v . Ch as e , 166 S.W .2d 641, 651 (Tenn. Ct. App. 1942))

.
“Proof that the donor rec eived indepe ndent advice respe cting the conse quence s and advisability

of the g ift is one example, but not the only one, of suc h proof of fairne ss.” Ric hmond , 55 5 S. W.2 d at 10 7- 10 8. Th e c ir c ums tanc e s su rr ound ingso me tr ans a c tio ns are su c h th a t th e on ly way in which the fiduc iary

can r ebut the presumption of invalidity is to show that his principal had the bene fit of independe nt advice. Id. at1 0 8 (q u o t i n g Ro be rts , 166 S.W .2d at 651). “ Independe nt advice is ordinarily

require d wher e it is a rea sonable re quirement a nd wher e the c ircumstance s are such that it would be di fficult to show the fa irness of the tr ansac tion without proof of independe nt advice , particula

rly , wher e the donor

is impoverished by

the g ift in question or the g ift seems to be unnatura l under the c ircumstance s of the ca se.” Id. (citations omi t t ed). I n such ca ses, proof of independe nt advice ma

y be the only

way i n wh i ch it can be shown that the donor wa s acting independe ntly

and with full appre ciation of what he was doing

. Id. (c i t i n g Ro be rts , 166 S.W .2d at 65 1) . “ Th e qu e sti on

a s to whe the r suc h inde pe nd e nt ad vic e is e sse nti a l is or din ari ly de te rm ine d w ith respe ct to the nature of the confidence repose d, the nature of the tra nsaction and the circ umstances in eac h particula

r ca se.” Id. (q u o t i n g Ro be rts , 166 S.W .2d at 651). In sum, proof of indepe ndent advice become s indispensable only when the fairne ss of the transac tion c annot be pr oved cle arly and convincing ly

without it. In re Estat

e of Maddox , 60 S.W .3d 88, 90 (Tenn. Ct. App. 2001).-14-

Proof of “ fairne ss” can also be shown by other mea

ns. The scope of evide nce r eleva nt to the fairne ss of a tra

nsaction or g ift is quite broad. In re Estat e of Bean , No. M2003-02029-COA- R3- CV, 2005 WL 3262936, at *11 (Te nn. Ct. App. Dec. 1, 2005) ; I n r e E s t a t e o f Pa rk , No. M2003- 0 0 6 0 4 -C OA -R3-CV, 2005 WL3059443, at *9 (Te nn. Ct. App. Nov. 14, 2005); I n r e Es ta te of Maddox , 60 S.W .3d at 89. “The nature of proof of fa irness nec essar

y to overc ome the pre sumption of undue influe nce is, o f co urse, lar g ely depende nt on the particula r fa cts of the c ase at issue.” Taylor v. Taylor , No. M2007-00565-COA- R3-CV, 2008 WL 1850807, at *4 (Te nn. Ct. App. Apr. 24, 2008) perm. app. de nied (Tenn. O ct. 27, 2008). The question for us is not whether the wea ker party ’s dec ision was a g ood one. Willi am son v. Upchurch , 768 S.W .2d 265, 270 (Tenn. Ct. App. 1988). In the context of a will contest involving undue influence and the issue o f “f ai rness,” the Middle Section of this Court ex plained:

I t is unders t an d ab l e that judges a nd lawy ers mig ht be conf used in this area beca use the a ppellate c ourts have not car efully define d what is meant by the fai rn ess of thetransaction

. Wit hout the t erm being c are fully define d the ave rag e jury

might

a ssume that it

wa s b e ing a sk e d to fi nd wh e the r the pe rs on be ne fi tti ngfr om t

he wi ll de se rv e d w hat th e wi ll pr ov ide d. Th a t is no t the me anin g of the te rm

. Th e jur y sh ou ld not be conc erne d with the question of wh et h er the testator did rig ht by those who ordinarily would be the objec ts of the testator’ s bounty . The jury ’s func tion is l imited to a deter mination of the testator’s capa city to make a will a nd whether the provisions i nt h e w i l l we re arri v ed at t h ro u gh th e fr ee age n cy o f t h e t es t at o r r at h er

th an th ro u gh the imp os iti on

of so me on e e lse ’s wi ll. I f t

he jur y fi nd s in favo r of the wi ll o n th e se two questions it has found that the transa ction was fa ir.

Ma tte r o f E sta te of De prie st , 733 S

. W

. 2 d 7 4, 78-79 (Te nn. Ct. App. 1986). In undue influenc e
c a se s, the qu e st io n is no t sim ply wh e the r t

he do no r k

ne w what he int e nd e d to do , “ but ho w this intention was produce d, whether it was by

ab u s e o f a confidential and f iduciary relation.” Ric hmond , 5 5 5 S

. W

. 2 d

a t 1 0 9 (qu o t i n g Tur

ne r v . Le ath e rs , 232 S.W .2d 269, 271 (Tenn. 1950) ).

“ Th e inq uir y is whe the r t

he we ake r p art

y ’s de c isi on

wa s a fr e e and ind e pe nd e nt o ne or

whe th er i t
was induced by the dominant pa rty .” Fri tts v . Ab bo tt , 938 S.W .2d 420, 421 (Tenn. Ct. App. 1996) ( c i t i n g W illiamson , 768 S.W .2d at 265). Be cause the eff ect of undue influence is to cre ate a dispositi on contra

ry to the independe nt will of the testator or g rantor, c ourts look to whether the dispositi on is unjust or unnatural, or whe ther it diffe rs from the grantor’ s previously expressed intentions. In re Estate of Brin dley , No. M1999-02224-COA- R3-CV, 2002 WL 1827578, at *20 (Tenn. Ct. App. Aug . 7, 2002) (c itations omi tted).

Whe the r a pe rs on e xer c ise d und ue inf lue nc e ov e r a

no the r a nd wh e the r a

tr ans a c tio n w a s f

a ir

are questions of fac t. In re Estate of Pric e , 2 73 S.W. 3d a t 12 5; In re Estat

e of Turner , 2 0 0 5 WL 20 86 02 8, a t *8; In re Estat e of Brindley , 2002 WL 1827578, at *20. “The issue of undue influe nce should ‘be dec ided by

the application of sound principles and g ood sense to the facts of ea ch ca se.’” Ch ildre ss , 7 4 S

. W

. 3 d

at 3 2 9 (q u o t i n g Mi tc he ll v . S mi th , 7 7 9 S. W. 2 d

3 8 4 ( T e n n

. Ct

. Ap p

. 1 9 8 9 ) ); In reEst ate of Bre v ard , 213 S.W .3d at 302.-15-

I n the ca se bef

ore us, the issue is not whe ther it was f air for Hay wood and Car oly

n to rec eive the proper ty , as opposed to B obby

. See, e .g. , Smith v . Smith , No. E2003-02877- COA-R3-CV, 2004 WL 2378245, at *3 (Te nn. Ct. App. Oct. 25, 2 0 0 4 ) (e x plaining that the test is not whether the tr ans a c tio n w a s f

a ir to p ote nti a l be ne fi c iari e s) ; Underwood v. Johnson , No. 1219, 1989 W L3140, at *4 (Te nn. Ct. App. E.S. J an. 20, 1989). The question is whether Gertrude acte d throug h her own fre e ag ency rathe r than a s a re sult of undue influenc e. See Ric hmond , 555 S.W. 2d a t 10 9; Matter of Est ate of De prie st , 7 33 S.W. 2d

a t 78 -7 9; Underwood , 1989 WL3140, at * 4 . Considering the totality of the circumstance s, we conclude that the evidence does not preponde rate ag ainst the trial court’s f inding that Ha

y wood and Car oly

n overc ame the pr esumption of undue influenc e. Admittedly , there wer e som e suspicious circ umstances pr esent in this case . Howeve r, Ha y wood and Caroly n prese nted convincingevidenc e that Ge rtrude a cted f ree ly and indepe ndently

in executing the two dee ds on September 14, 2003, a nd J anuar y 29, 2004.

Ger trude wa s living alone and re g ularly driving herse lf when the two deeds w ere executed. She did not suffer f

rom blindness or illiteracy , and she c ontinued t o wr i t e chec ks herse lf. The evidenc e re g ardingGer

tru d e’ s m ental dete rioration wa s conflicting . Some of Ger trude’s me dical

rec ords indicated that she experience d decr ease d rec ent memory and dementia, but others made no mention of memory

problems, and the J uly 7, 2004 medical r ecor d stated that she “ continues to do

re mark a bly we ll – he r m e mor

y los s h a s n ot p ro g re sse d –

sh e sti ll d ri ve s h e r o wn

c ar – sh e ne ve r g e ts lost, etc.” B obby

testified that Ger

trude “ was still driving a

round and d o i ng ever

y thing. Nothing

was wr ong with her, just her mind wa s off.” Ho we v er , all of the other witnesses testified that Ger trude wa s not suffer ing f rom mental issues. Ger

trude wa s descr ibed as strong -willed, ver y strong -minded, indepe ndent, having“a mind of her own,” hard- heade d, and very deter mined. She

was a lso describe d as a w oman who “ne ver did a sk nobody for he lp,” who knew what she w anted to do, did every

thing she wanted to do, and did nothing she did not want to do. One witness sa id, “whe n she made her mind up, . . . that’s the w ay it was g oing to be .”
Hay wood was a ctively

involved in the execution of the dee ds, i n t h at he contacted the attorney who pre pare d the dee ds, and he dr ove Ge rtrude to Mr. U itendaal’ s office to have them notarized. Howe ver, G ertrude chose to have Mr. Uitenda al notarize t h e deeds bec ause she knew him. Mr. Uitendaal obse rved Ger trude persona lly executing the deeds on both occa sions. He had a socia l conver sation with G ertrude at both me eting s, and he did not obser ve any thing dur ing e ither transac tion that raised a questi on in his mind as t o mental i ssues or undue influe nce. T here was no sug g estion that Gertr

ude wa s mentally

distraug ht or under any ty pe of fra ud or duress. Hay

wood’s wife te stified that neither s he nor H ay wood did any

thing to try

to convince G ertrude to deed the proper ty to the m. I n fac t, Ca

roly n said she had never observe d Hay wood trying to tell Ge rtrude what to do and explained, “You don’ t t el l [ Ge rt ru d e] what to do. You couldn’t tell her what to do.” Ha y wo od te sti fi e d th a t G e rt

ru de ins tr uc te d h im to “ g e t e ve ry

thi ng fi xed ” so tha

t he and his fa mil y would have e very

thing when she died bec ause she knew he would take c are of her for the r est of her life. Ne ither of the deeds wa s kept secr et. Althoug h it appear s that no one told Bobby about the deeds, this was not unusual based on the f act that B obby

was a lienated f

rom the family . Bobby

and Hay wood’s first cousin testified that he ha d sever al conve rsations with Gertr ude about how she had he r a ff a ir s in or de r, but he wa s no t a llo we d to te sti fy a s to the sp e c if ic de ta ils of

the ir c on ve rs a tio ns

.A lth o u g h B o b b y tes tified to th e c o n tra ry , th e tria l ju d g e d id n o t b e liev e B o b b y ’s te stim o n y a n d m a d e sp e c ific 8
f i ndi ngs r ega r di ng hi s be havi or

. W e w i l l not s ec ond- gues s t he t r i al c our t ’ s c r edi bi l i t y de t er m i nat i on.
-16- I n a d d i t i o n , b o t h d e e d s w e r e r e c o r d e d s h o rt l y a f t e r th e i r r e s p e c t i v e d a t e s o f e xe c u t i o n

. T hu s , a s a matter of public rec ord, t he deeds wer e not shrouded in sec rec y

. See Est ate of Fis he r e x re l. M e y e rs
v . Ro ge rs , No. W2001-02506-COA-R3-CV, 2002 WL31895721, at *4 (Te nn. C t

. Ap p

. Dec . 31, 2002).
Although there was no evidenc e that Ger trude rec eived independe nt a dvice reg ardi n g the execution of the t wo deeds, based on the facts and circumstance s of t his case , we c onclude that the presumption of invalidity

of these de eds is not so strong as to a bsolutely require proof of

independe nt
a dv ic e in o rd e r t o p ro ve the tr ans a c tio ns we re fa ir . “ [T]he str e ng th o f t he pr e sumpt ion of

inv a lid ity varie s with the circumstanc es of e ach c ase a nd, there fore , . . . the streng th of the re butting evide nce must vary proportionally .” Richm ond v . Chri stian , 555 S.W .2d 105, 108 (Tenn. 1977) . Ger trude did not rece ive any

consideration for the c onvey ance s, but she did not become impover ished. On September 14, 2003, when the f irst deed wa s executed, Ger trude had appr ox imately

$5,800 in her own che ckingacc ount and had a cce ss to o ver $26,500 be ing he ld for her benef it in the Special Acc ount. Hay

wood routinely

paid Ger trude’s bills from the Special Ac count and withdre w money in cash fr om the acc ount for Gertrude as nee ded. Ge rtrude’ s monthly social sec urity

income wa s being deposited i n her chec king acc ount. She was li ving in her own house on si x teen a cre s with her own per sonal proper

ty . W h en the second dee d was e x ecute d on J anuar y 29, 2004, Ger

trude ha d $3 ,7 00 in h e r o wn

c he c kin g a c c ount a

nd $2 6, 00 0 in the Spe c ia l A c c ount b e inghe ld f or he r b e ne fi t. She ma int a ine d h e r s oc ia l se c ur ity inc ome and

pe rs on a l pr op e rt

y and c on tin

ue d to li ve in h e r h ou se until S eptember

1, 2004, when she decide d to move in with Hay wood and Car oly

n. Throug hout the period in question, Ger

trude c ontinued to drive an estimated 100 miles pe r day visiti ng friends a nd family , and she dine d out with friends and family sever al times a we ek. The re w as no evide nce p r e s e n t e d t o s u g g e s tt h a ts h e e v e r

s t r u g g l e d f i n an c i a l l y.

I n addition, we do not consider the two dee ds to have be en unnatur al g ifts in light of the circ umstances in this case

. Although Gertrude ’s 1978 will left all of her estate to Calvin, and if he prede cea sed her , to both sons, the family ’s s ituation had clearly chang ed since 1978. Hay wood had worke d o n h is p ar e n ts ’ f

ar m s in c e 1 9 6 7 , an d h is f

ami ly d id e v e r

y th in g th e y c o u ld to ta

ke care of Ger trude. Bobby , on the other hand, had not visit ed Ge rtrude in e leven year s. Also, we note that 8 Hay wood did not dissuade his mother from maintaininga re lationship with Bobby or attempt to kee p he r i so late d f

ro m hi m. H ay

wo od too k G e rt

ru de to B ob by ’s ho us e to v isi t, a nd B ob by tol d th e m to leave

.
There was no dire ct evidenc e that Ha y wood or a ny one else undertook to influenc e Ge rtrud e’s decisions re g ardingthe disposition of her prope rty

. Ger trude’s actions with respec t to the deeds we re
c on sis te nt wi th ho w sh e dis po se d of the re st o f h e r a sse ts. Ha y wo od wa s n ame d a s th e pa

y -o n- de a th benef iciary of most of Ger

trude’s f inancial a ccounts many y ear s ag o, and Ge rtrude c onfirmed he r decision to name H ay

wood as the be nefic iary

of one a ccount a s rec ently as S eptember of 2004. The fa c t th a t G e rt

ru de ’s de c isi on s se e me d unf a ir to B ob by , in

his min d, is i rr e le va

nt.-17-

I n sum, we find that the evidence supports the tria l court’s c onclusion that the conve y ance s
wer e “f air a nd in acc ordanc e with the wishes of Ger trude Thompson” a

nd “her desire to e x clude he r son, Bobby Thompson, f

rom her estate.” We a ffirm the trial court’ s finding that the deeds w ere not the produc t of undue influenc e.

B. T he Fina nc ial

Trans ac tio ns

I n the next is sue pre sented to the t rial court, Bobby questioned “W hether or not any of the amounts of money

identified o n Ex hibit ‘A’ to this inst rument . . . we re obta ined by Hay wood Thompson and wrong fully conve rt ed t o h i s use and be nefit so that a judg ment should be enter ed ag ainst Hay

wood T hompson in favor of the Estate of G ertrude Thompson for any such amount.”

I n Tenne ssee, c onversion is the appropr iation of tang ible proper ty to a party ’s own use a

nd benef it in exclusion or defia

nce of the owner ’s rig hts. H & M En ters., Inc. v. Murray , No. M1999- 0 2 0 7 3 -C OA -R 3 -C V, 2 0 0 2 W L5 9 8 5 5 6 , at * 3 (T en n

. C t

. Ap p

. Ap r. 1 7 , 2 0 0 2 ) ( ci t i n g Barger v. W ebb , 39 1 S. W.2 d 6 64 , 6 65 (T e nn . 1 96 5) ; Lance Prods., Inc. v . CommerceUnion Bank, 764 S.W .2d 207, 21 1 ( Te nn . Ct . App

. 19 88 ))

. “ Conve rs ion is an int e nti on a l tor t, a nd a pa rt y se e kin g to m ake out a prima fa cie c ase of

conver sion must prove (1) the a ppropriation of a

nother’s proper

ty to one’s own use and be nefit, (2) b y

the intentional exercise of dominion over it, (3) in defia nce of the true

owner ’s rig hts.” Id. (c i t i n g Kinnard v. Shoney’ s, Inc. , 100 F. Supp. 2d 781, 797 (M.D. Te nn. 2000); Mammoth Cave Prod. Credit Ass’n v. Oldham , 569 S.W .2d 833, 836 (Tenn. Ct. App. 1977)). To constitute conver sion, the defe ndant must intend to convert the plaintiff’ s proper t y

. Gen. Elec. Credit Corp. of Tenn. v. Kelly & Dearing A viation , 765 S.W .2d 750, 753 (Tenn. Ct. App. 1988). Howeve r, “[t] his intention does not nece ssarily have to be a matter of conscious wrong doing, but can

mere ly be an e x erc ise of dominion or control over the prope rty

in such a w ay

that would be inconsistent with the owner’ s rig hts and wh i ch results in i njury to him.” Id. In other wor ds, “the defe ndant nee d only

have a n intent to ex erc ise dominion and control over the prope rty

that is in fact inconsistent with the plaintiff’s rig hts, and do so; good f aith is gener ally

immaterial.” Ma mm oth Cave Prod. Credit Ass’n v. Oldham , 569 S.W .2d 833, 836 (Tenn. Ct. App. 1977). I t is the deg ree of interf ere nce w ith the property , as we ll as the duration of th at i nterfe renc e, that will be deter minative of whether ther e has be en conve rsion. Gen. Elec. Credit Corp. , 765 S.W .2d at 753- 54.
Bobby challeng ed thirty -eig ht w ithdrawa ls f rom various acc ounts owned, at lea st in part, by Ger trude that we re ma de betwe en 1998 and 2004. T he cha lleng ed withdrawa ls r ang ed fr om $100 to $12,470. H ay

wood and Ms. Cozart testified a bout a fe w of the tra

nsactions, but the bulk of the evidenc e re g ardingthe transa ctions is located in seve ral binder s fu l l of ac count statements and documents. The trial court specific ally listed a nd discussed eac h of the thirty -eig ht withdrawa ls at issue in i t s fi nal orde r and f ound, with respec t to each one , “no evide nce of fra ud, wrong ful

conver sion or any

wrongdoing” by

the def endants. Rather

than spec ifically

addre ssing eac h of the transac tions, we will discuss them in groups whe re possible.

1. Money De posited in to Savings Account -696-18-

The fir st transac tion at i ssue was a withdrawa l of $3,723.49, made on A pril 27, 1998, from chec king a ccount number -322. At the time of this withdrawal, the na mes listed on chec king a ccount
numbe r - 32 2 w e re Ca lvi n T ho mps on and Mr s. Ca lvi n T ho mps on . T he wi thd ra wa l sl ip f or thi s tr ans a c tio n state s “T ra

ns fe r to S/A, ” and Ca lvi n T ho mps on ’s name is wri tte n o n th e sli p. Thus , it appea rs that this transac tion was completed by Calvin. O n t h e s ame day of this withdrawa l, the

rec ords from Calvin and G ertrude ’s saving s acc ount number -696 indicate that $3,723.49 was de po sit e d into t

he savin g s a c c ount. Th e re is no e vid e nc e that H ay wo od c on ve rt e d th is m on e y , a s it do e s n ot a pp e ar t hat he wa s e ve n invo lve d in the tr ans a c tio n, and the mon e y wa s d e po sit e d into h is pa re nts ’ s avin g s a c c ount.

2. Money De posited in to Chec kin g Acc ount -322

Be g inning with the July

28, 1998 statement for

chec king a ccount number -322, the names listed on the acc ount were Calvin Thompson, Gertrude Thom p s o n , an d Hay wood Thompson. B e g inn ingon

Ap ri l 1, 19 99 , H ay

wo od ’s name wa s a lso a dd e d to his parent s’ savin g s a c c ount, number -696. B etwee n J anuar y and F ebrua

ry of 2001, Calvin’s name was removed fr om chec king

acc ount number -322 a

nd saving s acc ount number -696.
Bobby challeng es seve n withdrawa ls made fr om the s aving s acc ount betwee n J une 4, 1999, and Dec ember 19, 2001. Howeve r, on the same day that eac h of these w ithdrawa ls were made f rom the saving s acc ount, deposits of the amount of money withdrawn w ere m ad e t o ch eckingacc ount number -322. I

n other wor ds, the rec ords s how that the money was simply

withdrawn f

rom the

savin g s a c c ount a

nd pla c e d into t

he c he c kin g a c c ount. Ge rt ru de ’s name was on bo th o f t he se
acc ounts, and we f

ind nothingto sugg est that Hay wood conve rted the f

unds. There is no evidence in the rec ord as to who made the first six withdrawa l s an ddeposits. On the seve nth transac tion, Ha y wo od sig ne d th e c he c kin g a c c ount d e po sit sli p w ith his name and

Ge rt ru de ’s name , an d he wr ote a che ck fr om the acc ount two day s later f or the same amount of t he deposit with a notation on the chec k for “ pre- need bur ial expenses.” Calvin died appr ox imatel y six months later. We find no

e vid e nc e of

c on ve rs ion

wi th r e g ard

to t he se se ve n tr ans a c tio ns

.
3. Tw o Checks to Haywood
Next, Bo b b y

challeng es two $10,000 withdraw als from the c heckingacc ount. The bank

rec ords show that on De cembe r 29, 2001, Ge rtrude wrote a che ck t o Ha y

wo o dfor $10,000. On J anuar y 2, 2002, Ger

trude wr ote a se cond che ck to Hay wood for $10,000. Hay

wood testified that his mot he r g ave him thi s mon e y a s g if ts. A ha nd wr iti ng e xpe rt

c on fi rm e d th a t th e se c he c ks we re in fac t written by Ger

trude. Hay

wood’s name was listed on the che ckingacc ount at the time, and he could have simply withdrawn money from the a ccount. The rec ords show that Ha y wood deposited the se tw o c he c ks int o the “ Spe c ia l Ac c ount, ” wh ic h he us e d f or Ge rt ru de ’s be ne fi t. T he de po sit sli p from the tra

nsaction l ists “Gift for 2001” beside the first $10,000 deposit, and “ Gift for 2002” beside the sec ond $10,000 deposit. Hay wood t estified even t houg h he rece ived t he money as gifts, he put the money

in the Special Ac count so that if Ger trude ne eded it, she w ould have it. We find no

e vid e nc e that H ay

wo od wr on g fu lly

c on ve rt e d th e se fu

nd s.The bal anc e r em ai ni ng i n che cki ng ac count num ber

- 322 w as r educ ed bec aus e of t he t w o gi ft s t o H aywood 9

an d t h e $ 1 2 ,00 0 ch ec k fo r p re-n ee d b u rial serv i ce s.

W e not e t hat on al l of t he acc ou nt s cl ose d i n J anuary of 20 02 , except one, H ayw oo d’s nam e w as ei t her l i s t ed 10

o n th e a c c o u n t w ith G e rtru d e ’s n a m e o r h e w a s listed a s th e p a y -o n -d e a th b e n e fic ia ry o f th e a c c o u n t.

Thi s w as t he che cki ng a cc ount t hat G er t r ude cont i nued t o us e af t er t he Spe ci al A cc ount w as ope ned. 11

-19-

4. Withdraw als in January of 2002
Next, Bobby

challeng es seve ral tra

nsactions that took place in ear ly J anuar y of 2002. F our
cer tificate of deposit acc ounts, worth $5,011.21, $4,046.63, $7,035.92, and $5,050.63, were c losed, and the money

was de posited directly

into checkingacc ount number -322.

Also in J anuar

y , Ger trude’s sa vings I RA acc ount worth $2,335.39 was closed, a withdra wal of $1 ,0 36 .3 6 w a s ma de fr om savin g s ac c ount n umb e r - 69 6, the re ma ini ngba lanc e of $2 ,6 62 .2 4 in

c he c kin g a c c ount n

umb e r -3 22 wa s wi thd

ra wn , and tw o mo re c e rt if

ic a te of de po sit a c c ounts , w or

th 9 $12,470.52 and $5,570.45, wer e closed. All of this money was deposited into the Special Ac count on J anuar y 10, 2002. The d ep o s i t slip i n the re cord lists eac h of the five sums deposited and the

acc ount numbers of the acc ounts from which they wer e withdrawn, for a total deposit of $24,074.96 to t he Spe c ia l A c c ount. 10

At tr ia l, H ay

wo od su bmi tte d r e c or ds fr om his comp ute r s of tw are pr ov idi nga

c omp le te
a c c ounti ngof

a ll tra ns a c tio ns inv olv ingthe Spe c ia l A c c ount, be g inn ingin Janu ary of 20 02 . T he se
rec ords show that Hay

wood paid Ger

trude’s bills fr om the Special Acc ount. The trial court found that the Sp ec i al Ac count was “ for the use and bene fit of [Gertrude ]. Bobby only points to one transac tion prior to Ger

trude’s death as not benef itting Gertrude, which was a $920.75 chec k to the Co-op for lime for use on the far m. Considering the two $10,000 chec ks that Hay wood deposited into the Special Acc ount, we find no wr ong doing ba sed on this one ex pense. In addition, we a g ree with th e tr ia l c o u rt’ s f

in d in g th a t th is a c c o un t w a s u s e d f o r th e b e n e f

it o f G e rtr

u d e

. There fore , Ha y wo od did no t c on ve rt

the fu nd s h e wi thd

re w a nd de po sit e d into t

he Spe c ia l A c c ount.

5. Wit hdr awal s forCa sh
Next, Bobby

challeng es thirteen w ithdrawa ls fr o m s avings ac count number - 696 and chec king a ccount number -330 made between March 14, 2002, and S eptember 24, 2004. Some of 11 these withdra

wals were made by Hay

wood, whil e others wer e made by chec ks pay able to the ba

nk, which appe ar to have bee n written by Ger trude. Acc ording to H ay

wood, he kept money on hand and g ave it t o G e rt

ru de in c a shwh e ne ve r sh e ne e de d it. B ob by te sti fi e d w he n h e wa s g ro wi ngup , h is mother alwa

y s wrote c hecks f

or purc hases a

nd did not car

ry larg e amounts of c ash. Howe ver, the

rec ord conta ins many

other c hecks, not c halleng ed b y Bobby , which we re written to the bank by Ger trude with notations that they wer e for “Cash.” The handwriting e x pert c onfirmed a n exemplar of such c hecks a s having been written by Ger trude.-20-

Th e tr ia l ju dg e c le arl y

be lie ve d H ay

wo od ’s te sti mony that he g ave the mon e y to G e rt ru de in cash. The court found that the averag e amount of cash withdrawn from the accounts ea ch month, including c ash withdraw als by Hay wood and c hecks written by Ger trude for cas h , wa s $260 per month. The court c oncluded, “ The recor d shows that Ger trude Thompson often dined out at local restaurants and liked to g o place s in her automobile. The Court finds that the cash w ithdrawn for the use a nd benef it of Gertr

ude Thomps o n was not an unreasona ble amount of money

for he r
m i s ce l l an eo u s cash e x penditures.” We ag ree and find no e vidence that Hay wood conve rted the

m o n e y.

6. M isc e lla ne ous Che c ks
Finally , Bobby

challeng es six chec ks that wer e written betwee n 1998 and 2003 from the two chec king a ccounts. One chec k was wr itten to Wal-mar t, a nd the trial court f

ound that it was written fo r p ur c ha se s b y

Ge rt ru de . T he se c on d c he c k, wr itt e n in 19 98 , w a s p ay a

ble to an ind ivi du a l, w ith a notation that it was for roof a nd car port repa irs. The trial c ourt found t h at this chec k was for repa irs to Ca lv in

an d G e rtr u d e ’ s h o u s e

. T h e th ir d

c h e c k w a s p ay a b le to a c ar d e a le r , an d

th e trial court found that it was used to purcha se Gertrude’ s 1990 Ply mouth vehicle. The last three che cks

wer e wr itten to an insurance company

. On two of those, Hay wood signe d Calvin’s name a nd then his name on the c heck, a

nd the trial court found t hat t he checks were written for farm ins uranc e. On the third insuranc e che ck, Ha y wood sig ned Ge rtrude’ s name a nd then his name, and the trial court fo un d th a t th e c he c k w a s w ri tte n f or a uto mob ile and ho me ow ne r’ s ins ur anc e

. Withre g ard to a ll s ix chec ks, the trial cour

t found no evidenc e of wrong doing or conver sion. We affir m the trial court’ s fi nd ing s, a s B ob by

do e s n ot p oint to any

c on tr ary e vid e nc e on

a pp e a l.

C. T he Pe rso nal Prop e rty

I n Bobby ’s final issue, he asked the trial court t o d eter mine “[w]hether or not any far m related machiner

y or equipment, automobile, neckla ce, or ring owned by Ger trude Thompson wa s obtained by

any of the De fenda

nts and wr o n gfu l ly

conver ted to the use a

nd benef it of any such Def endant[.]” The trial cour t found that Bobby

failed to pre sent an y ev i d ence that any of the defe ndants wrong fully

conver ted any far m relate d machiner

y or eq u i p ment owned by Ger trude. Bob by submitt ed interr og atories to the de fenda nts reg ardingthe location of va rious items of far

m equipment, and a ccor ding to the de fenda nts’ answe rs, Mike Thompson purcha sed Calvin’s trac tor in 1992 for $5,000, and he purcha sed two piec es of f arm e quipment from Ger

trude in 2001. Mike also testified about these transac tions. The defe n d an t s ’ answe rs to interrog atories a lso stated that Calvin sold other items of his farm e quipment at a fa rm sale. As f

or the a utomobile, the trial court found it undisputed based on the r ecor d that Ger trude g ave he r 1990 Ply

mouth to her g randda

ug hter for the benef

it of Ger trude’s six teen- y ear -old g reat-g randda ug hter. Finally , the trial court found that Bobby offe red no e vidence to show that any of the de fenda

nts wrong fully conver

ted a nec klace or ring owned by Ger

trude. Bobby does not point to any err or in the trial cour

t’s fac tual finding s, and we f ind none. Ther efor e, we aff irm the t rial court’s finding that no conver sion occurr ed with re spect to the persona l property

at issue.-21- V. C ONCL US I ON

F or the a fo re me nti on e d r e a so ns , w e a ff ir m th e de c isi on

of the c ir c uit

c ourt. Co st s of this appea l are taxed to the appellant, B obby Thompson, and hi s surety , for which execution may issue i f n e c e s s ar y.

___________________________________ AL ANE. HI GH ERS , P. J. , W .S.