1 T he remaindermen include: Madge Kirkham Fell, Betty Kirkham Bowland, Bernic e

Kirkham Bowers, and Debbie Little.



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE MADGE KIRKHAM FELL, ET AL 

### . v. GLORIA RAMBO

Chancery Court for Marshall County No. 9147 Lee Russell, Judge

No. M1999-01039-COA-R3-CV — Decided June 22, 2000

OPINION DENYING PETITION FOR REHEARING

K OCH , J., delivered the opinion for the court in which C AIN and C OTTRELL , JJ., joined.

The remaindermen 1 have filed a peti tion for rehear

ing in accordance

with Tenn. R. App. P. 39 requesting this court

to reconsider portions of its May 5, 2000 opinion and order. We directed Ms. Rambo to respond to the petition and have now received her response. After reviewing our May 5, 2000 opinion and ord

er, we have dete

rmined that we nei

ther overlooked

nor mis constru ed any material evidence in the appellate record. Accordingly, we adhere to our original May 5, 2000 opinio n and order , subject to the typo graphical corr

ection and the cla

rifications provi

ded in this opinion.
I.
We turn first to the remaindermen’s assertion that we “erred by ignoring the effect of Mrs. Crockett’s will.” They contend we ignored language that they believe reflects Ms. Crocket t’s intention to pass along the proceeds of the sale of the Crockett farm to them. This argument relies on the following langu

age in Ms. Crockett’s will: “I reiterate and adopt by reference, as if contained herein verbatim, the language of the Will of my husband, JOHN E. CROCKETT . . . and I devise and bequeath any such property to which said language is applicable in the same manner therein set out.”
The tri al court pretermitted this argument because Ms. Crockett had sold the farm. Th e remaindermen, for their own reasons, d id not renew the argument in their original brief or during oral argument. Thus, w

e did not address

this argument for the simple reason that theremaindermen didnot make it. Even though the remaindermen cannot belatedly raise this arg ument forthe first2 The sale defeated the plaintiffs’ remainder interest in the property, thereby increasing the size of Ms. Crockett’s estate.
-2- time in their petitio

n for r ehearing, we will address it briefly to demonstrate that it would have availed them little had they raised it in a timely manner.
Ms. Crockett was a lif

e tenant with an un

lim ited power

of disposition. Once she sold the farm, she could do with the proceeds as she pleased. By operation of the pre-1981 version of Tenn. Code Ann. § 66-1-106 (1993), any proceed s o f the sale of the f arm unspent at the

time of Ms. Crockett’s death were plac ed beyond the rea

ch of Mr. Crocket

t’s will and passed

instead through Ms. Crockett’s will. Ms. Crockett’s will clearly reflects her settled purpose to leave everything she ownedto a group of beneficiaries that did not include the remaindermen. The remaindermen have yet to explain satisfa

ctorily how Ms. Croc

kett’s reiterat

ion in her will of language in Mr. Crockett’s will pursuant to which their remainder interest was terminated somehow re vives the remainder interest they lost by operation of law.
II.
The remaindermen

raise threeadditional issues that can conveniently be addressed together. Each involves a

mischaracterization

of our May 5, 2000 opinion. First, the remaindermen contend that we “erred in adjudging the transfer of proceeds of the

farm as a gift to

Gloria Rambo.” We

did notconclude that Ms. C

rockett made a gi

f t of the pro ceeds of the sale of the farm to Ms. Rambo; however, even if we had, the remaindermen have failed to explain how the outcome of

this appeal would have been affected had she done so.
The remainderme

n based their argu

ment on a portion of

our opinion addre

ssing their assertion that the sale of the Crock ett farm should be

set aside becaus

e Ms. Rambo exerted undue influence over

Ms. Crockett. We p

ointed out that Ms.

Rambo was Ms. Crockett’s attorney-in-fact an d that, as the primary residual beneficiary under Ms. Crockett’s will, Ms. Rambo stood to gai n from Ms. Crockett ’s d ecision to sell the C rockett farm. 2 Thus, we determined that a presumption arose that Ms. Rambo unduly

influenced Ms. Cr

ockett to sell the f

arm and that Ms. Ram

b o wa s required to rebut this presumption by presenting clear and convincing evidence of the fairness of the transaction.
In response

to the remaindermen’s assertion that Ms. Rambo had produced no evidence that Ms. Crockett received independent advice regarding the sale of the farm , we pointed out that evidence of independent advice is required only where it would be difficult to show the fairness of the transaction witho

ut it. This typically arises when the transaction unde r scrutiny is a gift

from a feeble or incompetent subservient party to thedominant party that leaves the donor impoverished. The language that the remaindermen complain of in our opinion re ads as follows: “N evertheless, because the sale of the Cro

ckett farm was a

gift to Ms. Rambo only i

n the loosest sense

, and certainly didnot leave Ms. Crockett impoverished, it is n ot necessary to show that Ms. Crockett received3 Wit h outin any way changing its effective meaning, we could rephrase the sentence to which the plaintiffs o

bject as follows: “Whether or not the sale of the Crockett farm could somehow be interpreted

a s a gi ft to Ms. Rambo, it certainly did not leave Ms. Crockett impoverished and, accordingly, it is not necessary to show that Ms. Crockett received independent advice.”
-3- independent

advice.” The remaindermen appear to interp

ret this language as a determination that Ms. Crockett made a gift of the proceeds of sale to Ms. Rambo.
If clarification of this language is needed, we provide it now. In our May 5, 2000 opinion, we did not determine w

hether Ms. Crocke

tt intended to make a

gift to Ms Rambo of the proceeds of saleof the farm or whether the sale of the farm was effectively a gift to Ms. Rambo. We were not re quired to do so. The transfer of the farm, whe

ther or not a gift,

did not leave Ms. Cr

ockett impoverished. Accordingly, Ms. Rambo was not obliged to prove that Ms. Crocket t received ind ependent

advice 3 in order to rebut the presumption of undue influence. She produced othe r competent eviden

ce on this point. Second, t he remain dermen insist that this court “stated that Mrs. Crockett obtained independent

advice from a realtor prior to the sale.” Aga

in, this is incorrec

t. In discussing Ms. Crockett’s mental capacity to convey the far

m, the opinion state

s that t he realtor “questio

ned Ms. Crockett at length . . . and ascertained that Ms. Crockett understood she was selling the farm.” In our discussion of undue influence, we a gain mentioned tha

t the realtor “qu

estioned Ms. Crockett to insure that

she understood what she was doing, and was satisfied that she did.” The opinion does notstate or imply that Ms. Crockett received independ ent a dvice from any person. Moreover, as mentioned in the previous section, we determined that independent advice was not necessary to rebut the presumption of undue influence. Third, the remaindermen assert that we erroneously stated that the plaintiffs re

ceived “full accessto the relevant r

ecords. ” In fact, the opinion states only that the trial court “appointed an administr ato r ad litem for Ms. Crockett’s estate, granted the remaindermen access to the estate’s records and acc ounts and to Ms. Rambo ’s personal acc ount records, an

d directed Ms. Ramb

o to provide the remaindermen with a reconciliation of several certificates of deposit.” We did not state that the plaintiffs received “full access” to the estate records. Again we fail to see how this argument advances the rema indermen’s cause. The remaindermen

are not benefic

iaries under Ms.

Crockett’s will and cannot inherit from her under the intestacy laws. Thus, their o nly standing to maintain

this action derive

s from their claime

d interest in the proceeds of

the sale of the Cro

ckett farm. Once

we determined tha

t th e sale of the farm terminatedtheir remainder interest in both the farm

and the proceeds from the sale of the farm, the remaindermen

had no standing to demand an accountin g of assets in Ms. Crockett’s estate. Our recital of the fact that th

e remaindermen

did receive acc

ess to estate records, among other things, in no way affects this holding.
III.-4-

The remaindermen a

ssert that this c

ourt “states that the substance of the Plaintiffs [sic] TENN. R. APP. P. 10 appeal was over the Trial Court’s dismissal of the TRCP 60 opinion.” They argue, to the contrary, that their Tenn. R. App. P. 10 application “did not address the TRCP 60 motion substance.” After reviewing the plaintiffs’ March 13, 2000 motion for extraordinary appeal and the attached memorandum of law in support,

we agree that the substance of their application for extraordinary appeal did not take issue directly with the trial court’s ruling on the remaindermen’s Tenn. R. Civ. P 60 motion. Instead, the remaindermen relied on the trial court’s disposition of the Tenn. R. Civ. P. 60 moti on as evidence of bias and sought immediate review of the trial court’s refusal to recuse itself. Nevertheless,

the remaindermen have not stated a ground for rehearing this case. Our May 5, 2000 order

addresses and de

nies their application for extraordinary appeal from the trial court’s decision not to recuse itself. Our agreement with the trial court’s denial of t he remainder men’s Tenn. R. Civ. P. 60 motion only reinforces our conclusion that the trial court has not so far departed from the accepted and usual course of judicial proceedings as to require immediate review pursuant to Tenn. R. App. P. 10.
IV.
The remaindermen also request that we correct five “material” alleged errors in the May 5, 2000 opinion and order. Because theyeither identify on ly immaterial errors or mischaracterize or misunderstand the opinion and order, we have determined that none of the errors or perceived errors warrant a rehearing. First, the remainderme

n correctly point

out that Ms. Cr

ockett died on April 11, 1994, as opposed to April 1, 1994 as stated in the opinion. This typographical error, however unfortunate, is not a material misstatement of fact, as it has no potential to affect the outcome of the case. Second, the remaindermen correctly state that the opinion taxes costs to Ms. Rambo for her motion to dismiss Debb

ie Little as a part

y to this appeal, but

complain that the “contemporaneous Order does not conform to this finding.” The May 5, 2000 order to which the remaindermen refer addresses the remaindermen’s Tenn. R. App. P. 10 application for extraordinary appeal. The order in no way relates to Ms. Rambo’s motion to dismiss Ms. Little. The remaindermen offer no reason why the order should a

ddress the costs of Ms. Rambo’s motion to dismiss Ms. Little, and we can see none. Third, the remaindermen also assert that we incorrectly “found that the Trial Court ordered funds held by the Clerk and Master after June 20, 1997.” The opinion actually states that “[o]n June 20, 1997, the trial court filed a memorandum opinion concluding that the remaindermen ha d, as a matter of law, an interest in the proceeds of the sale of the Crockett farm. Accordingly, the trial court directed that

three certificates of deposit totaling $207,000 of the proceeds of the sale of the farm be deposited with the clerk and master.”4 The court stated that “[n]o proof was presented a

t the June / July tria

l about thisfee. The Plaintiffs should pursue this claim against the Estate, whose lawyer announced in court on May 7, 1999, that he does not re

sist payment of the bill by the Estate.” The court noted that “[t]he case sub judice is neither the estate file, Marshall County Chancery Court Case 34-94, nor the con serv atorship file, Case No. 8759. The pleadings in the case sub judice, as amended, do not include any claim for Dr. Auble’s fees.”

5 Under cross-examination, the appraiser, James Donald Turner was asked whe ther the fourteenpercent differential between his appraisal of the value of the Crockett home and farm and the actual price received was “within the reasonable negotiating realm” in view of the fact that the house was deteri

orating and Ms. Cro

ckett who was ninety-six at the date of sale was residing in a nursing home away from the farm. Mr. Turner’s response was “[i]t would sound reasonable.”
-5- For what it is worth, we accept that the context of the sec

ond sentence mak

es it somewhat misleading. It may appear from the opinion as though the trial court ordered the funds held by the clerk and master on or after June 20, 1997. As the remaindermen point out, the trial court ordered these funds held by the clerk and master in November 1996. Again, though, theremaindermen do notexplain how this discrepancy in dates has any bearing on the out

come of the appeal. Be

cause we determined that the remaindermen have no interest in the proceeds from the sale of the farm, it is irrelevant to this appeal on what date the trial court ordered the three certificates of deposit to be deposited with the clerk and master. Fourth, the remaindermen assert that our opinion “ignores that the Trial Court ord

ered Ms. Rambo to pay all valid claims but that Ms. Rambo has ignored the undisputedCourt order by failing to pay the plaintiffs’ valid claim for Dr. Auble’s fees.” The trial court’s March 30, 1998 order

to which the remainderme

n refer does not a

ddress their cla

imfor the fees charged by Dr. Pa mela Auble in her evaluation of Ms. Crockett’s competence. It merely states that “Gloria Rambo shall pay out of current estate

funds all allowed c

laims.” In its May 13, 1999 memorandum opinion, the trial court specific ally denied t he remainderme n’s request for a

n award of Dr. Au

ble’s fees. 4 The remaindermen

did not raise the issue of Dr. Auble’s fees in their brief on appeal. Accord

ingly, this court had no reason to

mention in its recital of the facts the trial court’s disposition of the issue of Dr. Auble’s fees or Ms. Rambo’s actions pursuant to that disposition. Finally, the remaindermen state tha t our “opinion cites the Trial Court’s finding that the Plaintiffs’ own real estate appraiser agreed that the price for the farm was fair.” While an error as to the appraiser’s testimony could indeed be material, o ur opinion commits no such error. It correctly states that, according to the appraiser, the purchase price of the Crockett farm “was within a reasonable negotiating range.” 5
V.
We respectfully deny the remaindermen’s petition for a rehearing. We

likewise tax the c

osts incident to the petition for rehearing jointly and severally against Madge Kirkham Fell, Betty-6-

Kirkham Bowland, Bernice

Kirkham Bowers, a

nd Debbie

Little for which e

xecution, if

necessary, may issue.