IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 20, 2019 Session

ROY EDWARD BANE, EXECUTOR OF THE ESTATE OF MARTHA

HARRISON BANE v. JOHN BANE ET AL.

Appeal from the Chancery Court for Cocke County

No. 2014-CV-103 Telford E. Forgety, Jr., Chancellor

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No. E2018-00790-COA-R3-CV

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The trial court granted a default judgment to the plaintiff in March 2009, which judgment

invalidated a deed for real property transferred from the plaintiff to her son and daughterin-law. The trial court subsequently set aside the default judgment without making 

sufficient findings of fact and conclusions of law concerning the basis for the ruling. 

Following a consequent bench trial, the trial court upheld the deed from the plaintiff to 

her son, although the plaintiff sought to have the deed set aside based on undue influence 

and fraud. The plaintiff has appealed. Based upon our determination that the trial court 

failed to make sufficient findings of fact and conclusions of law in its order that set aside 

the default judgment, we vacate both the trial court’s final order and the order setting 

aside the default judgment. We remand this matter to the trial court for entry of sufficient 

findings of fact and conclusions of law regarding the legal basis of the trial court’s 

decision to set aside the default judgment, or, in the alternative, reconsideration of that

judgment. 

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

Vacated; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

Thomas M. Leveille, Knoxville, Tennessee, for the appellant, Roy Edward Bane, 

Executor of the Estate of Martha Harrison Bane.

J. Patrick Stapleton, Sevierville, Tennessee, for the appellees, John Bane; Anne Bane;

and Elizabeth Caldwell Kingery, Executor of the Estate of J. Alan Kingery.

06/28/2019
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OPINION

I. Factual and Procedural Background

On December 15, 2008, Martha Harrison Bane filed a “Complaint for Cancellation 

of Deed Induced by Fraud and Undue Influence” (“first action”) against her son and 

daughter-in-law, John and Anne Bane (“Defendants”) in the Cocke County Chancery 

Court (“trial court”).1 In her complaint, Ms. Bane alleged that Defendants had exerted 

undue influence over her and had fraudulently induced her to transfer a tract of real 

property to them. Although all of the parties were residents of Virginia, the property in 

question (“the Property”) is located in Cocke County, Tennessee. 

Ms. Bane asserted, inter alia, that at the time of the Property’s transfer in 2003, 

John Bane was acting as her attorney-in-fact. Ms. Bane alleged that John Bane falsely 

represented that she needed to sign the deed transferring title to the Property to 

Defendants as part of Ms. Bane’s estate plan. Ms. Bane further alleged that Defendants 

informed her the deed would be placed in a lock box and would not be recorded until 

after her death. According to Ms. Bane, she had no intention of transferring title for the 

Property to Defendants at the time she signed the deed; rather, she intended for them to 

receive it only following her death.

Ms. Bane further asserted that upon her discovery of the transfer of the Property, 

she revoked the power of attorney granted to John Bane and demanded that he and his 

wife convey title back to her. Upon John Bane’s refusal to do so, Ms. Bane filed this 

action, seeking title to the Property, damages, and an award of attorney’s fees. A copy of 

the deed transferring the Property to Defendants was attached to the complaint.

On March 23, 2009, the trial court entered an order, finding that Defendants had 

received proper service of process and had failed to answer the complaint or otherwise 

appear. The court thus entered a default judgment, which set aside the deed from Ms. 

Bane to Defendants. A Clerk and Master’s Deed was accordingly issued, transferring 

title to the Property back to Ms. Bane. 

Ms. Bane subsequently instituted a separate action by filing a “Complaint for 

Cancellation of Deed of Trust” (“second action”) with the trial court on August 27, 2014. 

In this complaint, Ms. Bane named John and Anne Bane as defendants as well as J. Alan 

Kingery, Anne Bane’s father. Ms. Bane alleged that on June 20, 2007, Defendants had 

executed a Deed of Trust in favor of Mr. Kingery in the amount of $250,000, which 

required no payments and set forth no associated interest rate. According to Ms. Bane, 

 

1 Because several of the parties and witnesses in this matter share the same surname, we will refer to the 

mother, Martha Bane, as “Ms. Bane” and will refer to her children by their full names throughout this 

opinion in order to avoid any confusion.
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Mr. Kingery did not pay any money to Defendants upon the execution of the deed of 

trust. Rather, Ms. Bane alleged that the trust deed was executed to create a cloud on the 

title to the Property. Ms. Bane sought to have the deed of trust set aside.

Mr. Kingery subsequently filed a motion to intervene in the first action, asserting 

that he was an indispensable party thereto. In addition, Mr. Kingery and Defendants filed 

motions to have the default judgment from the first action set aside.2 On March 30, 2015, 

the trial court entered an order granting the motions to set aside the default judgment and 

finding Mr. Kingery to be a necessary and indispensable party. Rather than granting Mr. 

Kingery’s motion to intervene in the first action, the trial court consolidated the first

action with the second action, which permitted Mr. Kingery to proceed as a named party 

and rendered the motion to intervene moot. The court entered a subsequent order on 

September 15, 2015, allowing the intervention of the Martha Bane Trust as a party to the 

consolidated cases.

On October 13, 2016, Defendants and Mr. Kingery filed a joint motion seeking 

sanctions against Ms. Bane for failing to appear for her scheduled deposition. The trial 

court subsequently entered an order directing Ms. Bane to appear for a deposition within 

thirty days. On December 8, 2016, Defendants and Mr. Kingery filed a renewed motion 

for sanctions, claiming that Ms. Bane had appeared for a deposition on December 2, 

2016, but that the deposition was not completed because Ms. Bane was not feeling well. 

On July 11, 2017, Elizabeth Caldwell Kingery was substituted as a party in place of Mr.

Kingery, who had recently passed away. 

The trial court conducted a bench trial on February 6, 2018. The trial court then 

entered a final order on February 12, 2018, wherein the court dismissed Ms. Bane’s 

claims with prejudice. The Clerk and Master’s deed executed in 2009, which had 

conveyed title for the Property to Ms. Bane, was set aside, as well as subsequent deeds 

conveying the Property to the Martha Bane Trust. The court specifically upheld the deed 

from Ms. Bane to Defendants and the deed of trust in favor of Mr. Kingery.

In its memorandum opinion incorporated into the final judgment, the trial court 

explained in pertinent part:

The Court has listened to the evidence, which by the way is really in 

many respects confusing and just terribly convoluted, the dealings between 

the parties, terribly convoluted, but at the end of the day the Court is 

constrained to dismiss the complaint. The Court will explain its reasoning. 

 

2 Although the trial court’s March 30, 2015 order recites that these motions were filed, copies of the 

motions have not been included in the appellate record.
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First of all, [Ms. Bane] claims that Mr. John Bane held a power of 

attorney for Martha Harrison Bane, which he did for sure, held a power of 

attorney which was dated May 9, 2003. The deed made from Martha 

Harrison Bane to John Bane was dated . . . October 20, 2003. John Bane 

held a deed of trust, or rather a power of attorney for his mother Martha 

Bane certainly in October of 2003. From the record here, the Court cannot 

find that there had been any use of the power of attorney between the time 

it was granted in May of 2003 and the time the deed was made in October 

of 2003. 

There may have been use of the power of attorney after that, but 

there’s no evidence in the record here that there was use of the power of 

attorney between May and October. Accordingly, I don’t think the 

presumption of undue influence by reason of a confidential relationship 

between John Bane and Martha Bane, I don’t think that presumption arises 

with respect to this transaction. 

I also note that there’s no evidence in the record that the power of 

attorney was used in connection with the very deed at issue. Martha Bane 

signed the deed herself. John Bane did not sign the deed as power of 

attorney for Martha Bane as grantor and himself as grantee. Martha Bane 

herself signed it. 

* * *

Perhaps more importantly to the Court, there are a series of deeds in the 

record beginning with Exhibit 15 and running through Exhibit 19, deeds 

where -- deeds of gift, that’s what they’re styled, deeds of gift where 

Martha Bane made deeds of gifts for real property to some of her children, 

particularly Exhibit 15, a deed from Martha Bane to Philip Bane, one of her 

sons. 

Another deed, Exhibit 16, from Martha Bane to Philip Bane. Again, 

her son. 

Then Exhibit 17, a deed from Martha Bane to Martha B. Carnes. 

Martha B. Carnes is a daughter of Martha Harrison Bane. It’s dated May 

21, 2003. 

A deed July 7, 2003 between Martha Bane and Martha Carnes, 

Exhibit 18. 
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A deed dated April 2, 2004 from -- again a deed of gift. All of these 

are styled deeds of gift. April 2nd, 2004 from Martha Bane to George 

Annis and Elizabeth Harrison Annis, A-n-n-i-s, Exhibit 19. 

And then in between those deeds, in the same time series, was the 

deed that’s at issue here, a deed to John Bane. What does that tell the 

Court? It tells the Court that Martha Bane, for whatever reason, reasons 

that were sufficient to her at the time, was making deeds for property she 

owned to her children, probably perhaps for estate planning purposes, 

perhaps just she wanted to go ahead and get it done before she died. 

Whatever her reasons, she was giving her property away to her children. 

And John Bane, by the way, wasn’t the only one. He was one of the ones, 

but he wasn’t the only one. 

The evidence also shows that at the same time she made a deed to 

John Bane for eight acres in Cosby, which by the way was the Harrison 

home place. At the same time she made that deed, she made another deed 

to her son Tom Bane. By the way, Tom Bane testified here and the Court 

was very much impressed with his credibility, I must say, just very much 

impressed with Tom Bane’s credibility.

The trial court further explained that the survey map demonstrated that someone 

had the property surveyed and divided it so that Tom Bane and John Bane received tracts 

that were exactly the same size. The court also found that Tom Bane had testified that 

Ms. Bane told him shortly after the transfer that she had deeded the Property to John 

Bane and that he had begun work on it. 

According to the trial court’s findings, Tom Bane also testified that some years 

later, in 2008, Ms. Bane called him and asked him to give the property back that she had 

deeded to him. Tom Bane did so. Ms. Bane then filed the lawsuit against John Bane to 

recover the Property. The court found that John Bane exerted no undue influence over 

Ms. Bane. Rather, the court determined that a rift had developed among Ms. Bane’s 

children, which originated with Roy Bane’s actions, causing Ms. Bane to change her 

mind concerning the transfers of property.

On February 28, 2018, Ms. Bane filed a motion to reopen the proof or to alter or 

amend the judgment. The trial court denied the motion by order dated April 2, 2018. 

Ms. Bane filed a notice of appeal on May 1, 2018. On September 14, 2018, Defendants 

and Elizabeth Caldwell Kingery filed a “Suggestion of Death and Motion to Dismiss” in 

this Court, stating that Ms. Bane had passed away on June 14, 2018. Roy Bane 

subsequently filed a motion seeking to substitute himself, both as personal representative 

of Ms. Bane’s estate and as trustee of the Martha Bane Trust, as the appellant in this 

matter. This Court entered an order on October 30, 2018, denying the motion to dismiss 
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and directing the clerk to substitute Roy Bane, executor of the Estate of Martha Harrison 

Bane (“the Estate”), in place of Ms. Bane as the appellant.

II. Issues Presented

The Estate presents the following issues for our review, which we have restated as 

follows:

1. Whether the trial court erred by setting aside the default judgment 

entered against Defendants based upon the court’s finding that Mr. 

Kingery was an indispensable party.

2. Whether the trial court erred by excluding Ms. Bane’s deposition 

transcripts as evidence at trial.

3. Whether the trial court erred by finding that no confidential 

relationship existed between Ms. Bane and John Bane sufficient to 

give rise to a presumption of undue influence.

4. Whether the trial court erred by alternatively ruling that the evidence

was sufficient to rebut the presumption of undue influence.

5. Whether the trial court erred by declining to find that Mr. Kingery’s 

trust deed was void for lack of consideration and was executed in an 

attempt simply to establish a lien on the title to the Property.

6. Whether the trial court erred by declining to grant Ms. Bane’s 

motion to reopen the proof or alter or amend the final judgment.

III. Standard of Review

Our review of the trial court’s judgment following a non-jury trial is de novo upon 

the record with a presumption of correctness as to the trial court’s findings of fact unless 

the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Rogers v. 

Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the evidence to 

preponderate against the trial court’s finding of fact, the evidence must support another 

finding of fact with greater convincing effect.” Wood v. Starko, 197 S.W.3d 255, 257 

(Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 

291, 296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions of law de novo

with no presumption of correctness. Hughes v. Metro. Gov’t of Nashville & Davidson 

Cty., 340 S.W.3d 352, 360 (Tenn. 2011). The trial court’s determinations regarding 

witness credibility are entitled to great weight on appeal and shall not be disturbed absent 
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clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417, 

426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

A trial court’s decision concerning whether a default judgment should be set aside 

is reviewed by this Court under an abuse of discretion standard. See Patterson v. 

SunTrust Bank, 328 S.W.3d 505, 509 (Tenn. Ct. App. 2010). As our Supreme Court has 

explained:

An abuse of discretion occurs when a court strays beyond the applicable 

legal standards or when it fails to properly consider the factors customarily 

used to guide the particular discretionary decision. A court abuses its 

discretion when it causes an injustice to the party challenging the decision 

by (1) applying an incorrect legal standard, (2) reaching an illogical or 

unreasonable decision, or (3) basing its decision on a clearly erroneous 

assessment of the evidence.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (internal citation omitted).

IV. Default Judgment

The Estate first argues that the trial court erred by setting aside the March 2009 

default judgment entered against John and Anne Bane. The Estate posits that the trial 

court erroneously determined that Mr. Kingery was a necessary and indispensable party 

in the first action. The Estate further asserts that the motions seeking to set aside the 

default judgment were untimely.

Pursuant to Tennessee Rule of Civil Procedure 55.02, default judgments may be 

set aside “[f]or good cause shown” and “in accordance with Rule 60.02.”3 Tennessee 

Rule of Civil Procedure 60.02 provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or 

the party’s legal representative from a final judgment, order or proceeding 

for the following reasons: (1) mistake, inadvertence, surprise or excusable 

neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse party; (3) the 

 

3 Despite the reference to Tennessee Rule of Civil Procedure 60.02 contained within Rule 55.02, this 

Court has noted that “[a] party against whom a default judgment has been entered may seek relief from 

that judgment by filing a motion to alter or amend the judgment under Tenn. R. Civ. P. 59 or a motion for 

relief from judgment under Rule 60.” See Estate of Vanleer v. Harakas, No. M2001-00687-COA-R3-CV, 

2002 WL 32332191, at *4 (Tenn. Ct. App. Dec. 5, 2002). Furthermore, as our Supreme Court has 

explained, if the default judgment does not adjudicate all claims against all parties and, therefore, is not a 

final judgment, the defaulting party may seek to have it set aside under Tennessee Rule of Civil Procedure 

54.02. See Discover Bank v. Morgan, 363 S.W.3d 479, 491 (Tenn. 2012).
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judgment is void; (4) the judgment has been satisfied, released or 

discharged, or a prior judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that a judgment should have 

prospective application; or (5) any other reason justifying relief from the 

operation of the judgment. The motion shall be made within a reasonable 

time, and for reasons (1) and (2) not more than one year after the judgment, 

order or proceeding was entered or taken.

We note that courts should “construe requests for relief pursuant to Rule 60.02 much 

more liberally in cases involving default judgment than in cases following a trial on the 

merits.” Patterson, 328 S.W.3d at 512 (quoting Henry v. Goins, 104 S.W.3d 475, 481 

(Tenn. 2003)).

The party who seeks to set aside the default judgment has the burden of 

demonstrating that he or she is entitled to relief. See Purdy v. Smith, No. M2012-02463-

COA-R3-CV, 2014 WL 2194451, at *3 (Tenn. Ct. App. May 23, 2014). In addition, 

“a Rule 60.02 motion filed for reasons (1) or (2) must be filed no later than one year after 

the judgment or order was entered.” Rogers v. Estate of Russell, 50 S.W.3d 441, 445 

(Tenn. Ct. App. 2001). Although a motion filed pursuant to Rule 60.02(3), asserting that 

the underlying judgment is void, has no time limitation, see Turner v. Turner, 473 

S.W.3d 257, 269 (Tenn. 2015), all other motions made pursuant to Rule 60.02 must be 

filed “within a reasonable time.” See Tenn. R. Civ. P. 60.02; Rogers, 50 S.W.3d at 445.

Relief from a default judgment is typically sought due to allegations of “mistake, 

inadvertence, surprise or excusable neglect.” See, e.g., Discover Bank v. Morgan, 363 

S.W.3d 479, 491-92 (Tenn. 2012); Patterson, 328 S.W.3d at 511. In that context, 

regardless of whether relief from a default judgment is sought under Rule 54, 59, or 60, 

the trial court must determine (1) whether the default was willful, (2) whether the 

defendant has a meritorious defense, and (3) the level of prejudice that may occur to the 

non-defaulting party if relief is granted. See Discover Bank, 363 S.W.3d at 492; Tenn. 

Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985). The primary 

consideration, however, is whether the defaulting party’s conduct was willful. See

Discover Bank, 363 S.W.3d at 492-93.

In the case at bar, the trial court found in the order granting default judgment that 

Defendants had been properly served with process in the first action via certified mail and 

that notice was also published in the local newspaper. Nearly five and one-half years 

later, Defendants and Mr. Kingery filed motions seeking to set aside the default 

judgment. The trial court granted the motions by order dated March 30, 2015, stating as 

the sole basis for its ruling that “J. Alan Kingery was a necessary and indispensable party 

to the action [filed in 2008 by Ms. Bane] but was not named or otherwise noticed by the 
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Plaintiff in that cause.” The trial court provided no factual findings or legal analysis to 

support this conclusion.4

As previously noted, the motions seeking to have the default judgment set aside 

are not included in the appellate record before us. However, inasmuch as the default 

judgment had become final, we presume that the motions were filed pursuant to 

Tennessee Rule of Civil Procedure 60.02 rather than Rule 59 or 54. That being 

considered, the record contains no other information concerning the legal basis for the 

motions or whether such motions were timely filed. The motions were clearly not filed 

within one year of the grant of default judgment, and the trial court made no findings 

regarding whether the motions were filed within a reasonable time or whether the 

underlying judgment was void.5 In fact, the trial court’s order contains no discussion of 

the timeliness of the motions whatsoever.

Due to the absence of sufficient factual findings and legal conclusions in the trial 

court’s order setting aside the default judgment, we conclude that the trial court’s March 

30, 2015 order setting aside the default judgment should be vacated. We note that 

Tennessee Rule of Civil Procedure 52.01 provides in pertinent part: 

In all actions tried upon the facts without a jury, the court shall find the 

facts specially and shall state separately its conclusions of law and direct 

 

4 We have located no authority for the proposition that a default judgment must be set aside due to the 

failure to join an indispensable party except in instances where the failure to join an indispensable party 

affects the trial court’s subject matter jurisdiction, such as in a declaratory judgment action. See Tenn. 

Code Ann. § 29-14-107; Tenn. Farmers Mut. Ins. Co. v. Debruce, No. E2017-02078-COA-R3-CV, 2018 

WL 3773912, at *1 (Tenn. Ct. App. Aug. 9, 2018), perm. app. granted (Tenn. Jan. 16, 2019). Ms. Bane’s 

complaint in the first action did not rely upon the declaratory judgment statute. 

Because the trial court did not indicate its basis for determining that Mr. Kingery was a necessary and 

indispensable party to the first action, we have no ability to review that conclusion. We note, however, 

that as our prior decisions have demonstrated, although a “trustee named in a trust deed is a proper party 

to a suit involving lands subject to the trust indenture,” a proper party “is not the same as a necessary or

indispensable party.” See Brewer v. Lawson, 569 S.W.2d 856, 858 (Tenn. Ct. App. 1978); see also 

Campbell v. Miller, 562 S.W.2d 827, 831 (Tenn. Ct. App. 1977). “Only a party who will be directly 

affected by a decree and whose interest is not represented by any other party to the litigation is an 

indispensable or necessary party, that is, one without which no valid decree may be entered settling the 

rights between the parties that are before the [c]ourt.” Brewer, 569 S.W.2d at 858. 

5 We note that a void judgment is one wherein the rendering court lacked subject matter jurisdiction or

personal jurisdiction of the parties, or one that is “wholly outside the pleadings.” See Turner, 473 S.W.3d 

at 270 (quoting Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996)). Moreover, the judgment’s 

invalidity must be apparent from “the face of that judgment, or in the record of the case in which the 

judgment was rendered.” See Turner, 473 S.W.3d at 270 (quoting Giles v. State ex rel. Giles, 235 S.W.2d 

24, 28 (Tenn. 1950)). If the defect is not apparent from the face of the judgment or the record and must 

be established by additional proof, the judgment is “merely voidable, not void.” See Turner, 473 S.W.3d 

at 271.
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the entry of the appropriate judgment. . . . If an opinion or memorandum of 

decision is filed, it will be sufficient if the findings of fact and conclusions 

of law appear therein.

We have determined that the March 30, 2015 order contains insufficient findings and 

conclusions to determine or review the basis for the trial court’s ruling that the default 

judgment should be set aside. Moreover, the order contains no findings or conclusions 

concerning the timeliness of the motions seeking to set aside the default judgment. 

As this Court has explained concerning the requirements of Rule 52.01:

Rule 52.01 of the Tennessee Rules of Civil Procedure requires the trial 

court to state expressly its findings of fact and conclusions of law, even 

where the parties do not request it. Tenn. R. Civ. P. 52.01. If the trial court 

fails to do so, its decision is normally vacated and the cause remanded for 

such findings and conclusions; however, the appellate court may, in some 

circumstances, “soldier on” in the absence of them. 

In re S.J., 387 S.W.3d 576, 594 n.9 (Tenn. Ct. App. 2012) (internal citation omitted) 

(emphasis added). We do not believe that this is an appropriate case in which to “soldier 

on” in the absence of appropriate findings and conclusions, particularly when the issue of 

timeliness was not specifically addressed by the trial court. We therefore conclude that 

the trial court’s final order, as well as its March 30, 2015 order setting aside the default 

judgment, should be vacated. 

V. Remaining Issues

Having determined that the trial court’s orders should be vacated, we conclude 

that the remaining issues presented by the Estate are pretermitted as moot.

VI. Conclusion

For the foregoing reasons, we vacate the trial court’s final order and its March 30, 

2015 order setting aside the default judgment. We remand this matter to the trial court 

for entry of sufficient findings of fact and conclusions of law regarding the legal basis of 

the trial court’s decision to set aside the default judgment, or, in the alternative, 

reconsideration of that order. We also remand for consideration of any remaining issues 

and collection of costs assessed below. Costs on appeal are taxed to the appellees: John 

Bane; Anne Bane; and Elizabeth Caldwell Kingery, Executor of the Estate of J. Alan 

Kingery.

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THOMAS R. FRIERSON, II, JUDGE