### IN THE COURT OF APPEALS OF TENNESSEE AT KNOX VILLE A ugus t 5, 200 9 S es sio n

DENNIS G. LOH MANN v. RONALD D. LOHMANN, et al.

Direc t Appeal from the Chancer y Court for K nox Coun ty No. 151018-3 Hon. Michael W. Moye rs, Chancellor

_________________________
No. E2008-02787-COA- R3-CV- F ILED OCTO BER 2, 2009

_________________________

Th is i s a su it b e tw e e n s ibl ing s o ve r t he ir mot he r' s E state . Pl a int if

f s ue d h is b ro the r, de fe nd ant, alleg ing the defe ndant had a confide ntial relationship with the parties' mother and soug ht a judg ment decla ring that cer

tain transac tions made by the def endant on be half of the mother wer e void. Upon hear ing the evidenc e, the Tr ial Court held the evidenc e esta blished a pre sumption of undue influence

and the defe nd ant did

no t r e bu t th e pr e sumpt ion . T he Cou rt ru le d th a t th e pla int if

f i s e nti tle d to one-ha lf of the proc eeds of the annuity

contra cts and ba

nk contra cts, that the def

endant ha d cause d the plaintiff' s name to be deleted as a benef iciary of those contra cts, and the Court e ntere d J udg ment for the pla intiff in the amo unt of $211,830.86 ag ainst defe ndant and plac ed a lien upon the defe ndants ' re al property

until the J udg ment is paid. Defe ndant has a ppeale d and on appe al we

a ff ir m th e Judg me nt o f t

he Tr ia l Co ur

t.

Te nn. R . A pp. P .3 App e al a s o f R igh t; Judg me nt of th e Cha nc e r y C our t A ff ir me d.

H ER S CHEL P ICK EN S F R ANKS , P.J., delivered the opinion of the Court, in which D. M I CHAEL S W I NEY , J., and J OHN W. M C C LARTY , J., joined.

Richard L. H olcomb, Knoxville, Tenne ssee, f or appe llants, Ronald D. Lohmann, e t al

.
Jennifer E. Raby, Rockwood, Te nnessee , for a ppellee, D ennis G. Lohmann.2 OP IN ION

Plaintiff, Dennis L ohmann, fil ed a Complaint ag ainst his brother, Ronald L ohmann,

a lle g ingtha

t Ro na ld e xer

te d und ue inf lue nc e ov e r t

he ir mot he r, no w d e c e a se d, a

n d c r e a t e d anim os ity betwee n their mother a

nd Dennis, ca

using he r to remove Dennis as he r attorne y -in-fa ct bef ore he r de ath
, and al so c a

us inghe r t o r e mov e him fr om s e ve ra l jo int

a c c ounts . D e nn is a lle g e d th a t hi s

m o t h er , An n e Loh m an n , ap p o i n t edR o n al d as h er at t o rn ey -i n -f

ac t , t h u s cr ea t i n g a conf i d en t ial/fiduciary

relationship, which he then abuse d to ga in monetary benef it. Dennis asked fo r a jud g me nt d e c lari ngthe tr ans a c tio ns vo id, or a de c laratio n tha t Rona ld w a s h old ingthe a sse ts in trust for the bene fit of Anne’ s estate.

Ronald answe re d, denying a ny alleg ations of misconduct, and a sserted that any

anim os ity be tw e e n A nn e and

De nn is wa s the re su lt of De nn is’ ow n c on du c t, whic h o ff e nd e d th e ir pa re nt s. Den nis th e n ame nd e d h is C omp la int , n a min g Pa tr ic ia L oh mann

(R on a ld’ s w if

e ) a s a defe ndant. He alleg ed that Ronald signe d cer tain documents cha

ng ing the status of their mother’ s assets, and t h at R onald deposited c erta in assets he re ceive d from his mother af ter he r death into a joint account with his wife, a nd then used the same to purcha se ce rtain parcels of rea l property now joi ntl y h e l d w i t h h i s w i f

e

. D e n n i s a t t a c h e d

f o r m s s h o w i n g t h e c h an g e i nb e n e f i c i ar y o na nn uit y
acc ounts h e ld

b y th e d e c e d e n t. D e f

e n d an ts an s w e r e d
, s tati n g th a t R o n a ld s ig n e d d o c u me n ts for Anne in his role a s her attorney -in-fa ct.

At the trial of the c ase, the par ties entere d a deta iled Stipul ation of F acts. The pertinent stipulations are that Eric L ohmann, father of Rona ld and Dennis, died October 13, 1997,

a t the a g e of 85

. On No ve mbe r 1 4, 19 97 , A nn e L oh mann a pp lie d f or tw o A llm e ri c a

annuit y po lic ie s,
and named Ro nald

and De nn is a s th e be ne fi c iari e s. Ar ound that ti me , A nn e e xec ute d a Dura ble Power of A ttorney

and name d both Ronald and Dennis as he r attorne y s-in-fa ct. On De cembe r 31, 1997, Anne r evoked sa id Power of Attorne y

.

On Fe bruar

y 4, 1998, Ronald took Anne to First America n Ba nk wher e she ha d her signature guara

nteed on a

document, that is addre ssed “to whom it may conce rn”, and direc ts that Dennis be removed as a beneficia ry of her acc ount. I t contains a blank s pace for he r ac count number to be filled in. On Fe bruar y 19, 1998, a joint acc ount was opene d at Fir st America n in the names of Anne and Ron a ld L oh mann , a

nd it w a s o pe ne d w iththe pr oc e e ds fr om a n a c c ount t

hat ha d be e n in the names of Anne, Ronald, and Dennis. Around this time, Ronald sent a copy to MBNA Ba n k, wher e ther e wa s a joint acc ount in the names of Anne , Ronald, and De nnis.

On Fe bruar

y 20, 1998, Anne e x ecut ed a Will, and ex ecute d a Power of Attorney

namin g Ro nal d as her

a tto rn e y -i n- fa c t. O n M arc h 1 , 1 99 8, wh ile Anne wa s h os pit a lize d, Ron a ld si gn ed her na

me to new be nefic iary

desig nation forms for

her a nnuity policies. The be nefic iary desig nations were chang ed fr om Dennis and Ronald to Ronald and his wife

.

Anne died

in t he ho sp ita l on

Ap ri l 10 , 1 99 8. Tw o w e e ks be fo re he r d e a th, Ron a ldDr. James Sidney Alexander’s de position was filed in evidenc e. 1

3 c ha ng e d th e loc ks on Anne ’s ho me , a nd wh e n D e nn is c a me to s e e Anne , h e wa s n ot a llo we d a c c e ss to he r home. After Anne’ s death, Ronald submitt ed claims on the annuity policies, an d re ceived chec ks for $76,928.00 and $146,786.00. Ronald qualified as persona l repre sentative of his mother’ s estate on Ma

y 8, 1998. Ronald did not disclose to Dennis that he re ceive d the proce eds of the two annuity policies, and the ba

nk acc ount s wi t h First Amer ican a nd MBNA , until March 10, 2000. Ronald rec eived $1,153.00 from MBNA, and $38,593.00 from First Americ an. Anne’ s estate w as closed on Septembe r 13, 2002.

Ron a ld w a s th e fi rs t and

on ly wi tne ss at th e tr ia l. 1

Following the trial, the Court ente red a Mem o randum Opinion on J uly 2, 2008, finding that plaintiff and de fenda nt were brothers, a

nd wer e two of the fo u r ch i l d re n of Anne and Eric L ohmann. The Court found t hat Dennis li ved in Arizona and visited his pare nts when he w as
a ble . T he Court fo un d that Rona ld liv e d in Tenne sse e and wa s abl e to spe nd a g re a t de a l mo re tim e with Anne, assisting her w ith her hea lth and business needs.

Th e Court

fo un d th a t a ft e r h e r h

us ba nd ’s de a th o n Oc tob e r 13, 19 97 , A nn e ’s he a lth deter iorated a

nd that Anne a

pplied for two va

riable a nnuity policies with Allmerica F inancial on November

14, 1997, and desig nated plaintiff a nd defe ndant as be nefic iaries on the a nnuities. On the same date, Anne executed a power of attorney naming plaintiff and de fenda nt as her attorney s-infac t. She revoke d this power of attorney on Dec ember 31, 1997, and in J anuar y 1998, Dennis beg an
re c e ivi nge ma ils and

no te s p ur po rt e dly wr itt e n by his mot

he r, ind ic a tin g that sh e wa s ang ry wi th h im. Dennis re sponded with a letter to his m o ther on January 7, 1998, and with letters se nt to J ohn O’Conner , the family

attorney

.
The Court found that on Febr uary 17, 1998, Ronald took Anne to First Ame rica n Nat i o n al Ba nk, wher e she pur portedly executed a doc ument indicating that Dennis wa s to be

remove d from her

acc ounts. Ronald testified that Anne executed a number of the se docume nts, and that he then f

illed in the acc ount numbe rs indicating which ac counts that Dennis wa s to be remove d from. Funds from an acc ount previously held in the names of Anne, De nnis, and Ronald wer e then

us e d to op e n a

ne w a c c ount t

hat w a s in

the name s o f A nn e and

Ron a ld o nly , a s jo int

ho lde rs wi th rig ht of survivorship. The Court found t h at o n Fe bruar y 20, 1998, Anne e x ecute d a powe r of attorney naming Ronald as her attorney -in-fa ct, and on the s ame date s he ex ecute d a W ill which set up trusts for her

other son, Eric, and daug hter Mar ianne, a nd provided that the r est of her estate w as to be divided equa lly

betwee n plaintiff and de fenda nt.

On Ma r c h 1
, 1 9 9 8
, w h i l e A n n e w a s h o s p i t a l i z e d
, R o n a l d s i g n e d h e r n a m e to de sig natio n o f b e ne fi c iary fo rm s f or he r a nnuit ies, and

the Court

fo un d th a t w he n in iti a lly questioned about the same, Ronald denied ha vi n g ex ercised his power of attorney to sign Anne ’s

name on the fo rm s, bu t a ft e r D e nn is h ir e d a han dw ri tin g e xpe rt to a na ly ze t he sig natur e s, Ron a ld admitted that he sig ned Anne ’s name a s her attorney -in-fa ct. When asked w hy he name d his wife4

and stepda

ug hter a s conting ent bene ficiar ies, he stated he was “ taking car e of his people ”.

The Court found that Anne died on April 10, 1998, and that appr ox imately 2 wee ks befor e her death, defe ndant chang ed the locks on her home , and denie d plaintiff ac cess whe n he wa s visiti ng his mother during her f inal illness. About a month later, Ronald qualified a s t he per sonal repr esentative of Anne ’s e s t at e i n Knox County Chance ry

Court, and applied f

or pay ment of the annuity contra cts. He rece ived checks from Allmerica Financ ial for $76,928.54 and $146,786.29. He filed a

ta x re tur n f or Anne ’s e state , w hic h s ho ws that Ma ri ann e re c e ive d $ 45 ,8 50 .0 0, Er ic

rec eived $120,293.00, De nnis rece ived $159,793.00, and R onald receive d $432,090.00. The Court fo u n d t h e d i s cr ep an ci es i n t h e d i s t ri b u t i o no f t h e e s t at e t o b e c o mp el l i n g, co n s i d er i n g t h e l an gu age of the Wil l w hich purported to distribute the rema ining assets equally betwee n plai n t i ff and de fe nd ant. As it w a s st ipu late d, Ron a ld d id n ot d isc los e to D e nn is that he wa s n a me d s ole benef iciary on the annuity

contra cts until March 2000.

The Court discussed that, pur suant to Tennesse e ca se law, th e ex i s t ence of a

c on fi de nti a l r e latio ns hip (s uc h a s a pow e r of a tto rn e y ) co mbi ne d with

a tr ans a c tio n w hic h b e ne fi ts the dominant party

cre ates a presumption of undue influe nce. T he Court found that, in this case , the evidenc e of same “c ould hardly be more clea

r”, in that de fenda

nt was attorne y -in-fa ct for his mother wh e n he c ha n g e d

t h e b e n e f

i c i ar y d e s i g n a t i o no nh e r

an nu i t y c o n t r a c t s t o b e n e f

i th i m s e l f an d h is family to the exclusion of plaintiff and the other siblings. The Court found that t h i s cr ea t ed a rebuttable presumption of undue influe nce, a n d wh i l e the power

of attorne y

was not y et in place when the MB NA and F irst America n acco u n t s wer e cha

ng ed, ther e wa s also the taint of undue inf lue nc e on tho se tr ans a c tio ns , be c a

us e de fe nd ant w a s th e on ly sib lin g in a

po sit ion to i nf lue nc e his mother’s thinking and dec ision-making.

The Court found that Mrs. L ohmann was in ve ry ill health during the l ast months of 1997 and the e arly

months of 1998, and that she was distraug ht over the de ath of he r husband a nd also over the impending de ath of he r daug hter. The Court found that whe n these e vents took place
, sh e wa s 8 5 y e ars old
, and Dr

. Al e xan de r, a fo re ns ic ps y c hiatr ist , te sti fi e d th a t sh e wa s su sc e pti ble to manipulation and undue influenc e, and w as exhibit ing sig ns of dementia. T he Court found that defe ndant kept these transac tions secre t from plaintiff, and did not re veal the sa me for two year s after Anne’ s death. The Court also found that these transac tions, whic h had the ef fec t of transfe rringthe bu lk o f A nn e ’s e state dir e c tly to de fe nd ant out sid e of pr ob a te , ap pe are d to be “r a dic a lly a t od ds ” wi th the lang uag e of the Wil l, which provided that plaintiff and def endant should take equally

.
The Court f

ound that wher e there was a rebuttable presumption of undue influe nce, as in this case
, t h e b u rden shifte d to defe ndant to rebut the pr esumption by clea r and c onvincing evidenc e of the fairne ss of the tran s ac t i o n

. T h e Court noted the only evidenc e on this issue was de fe nd ant’ s o wn

te sti mony , w he re in h e state d th a t in he r l a st m on ths , A nn e be c a me ang ry wi th plaintiff and independe ntly decide d to remove him as be nefic iary on the disputed assets. The Court fo un d th e de fe nd ant’ s te sti mony wa s n ot c re dib le , as it w a s unc or ro bo rate d a

nd se lf -s e rv ing , a

nd a lso beca use it did not comport with the intent ex presse d in the W ill. The Court found that there wa s not clea r and c onvincing evidenc e, nor even a pre pondera nce of evidenc e, to re but the presumption of5

undue influenc e, and the Court ruled that plaint i ff wa s entitled to one-half the proc eeds of

the annuity contra cts and bank acc ounts, and also found that this was a n appropr iate ca se for

an aw ard of pre

- ju d g me n t i n te r e s t. T h e Co u rt e n te r e d ju d g me n t f

o r p la in ti f f in th e a mo u n t o f

$ 2 1 1
, 830.86 ag ainst defe ndants, and place d a lien upon the defe ndants rea l pr operty until the judgme nt was paid.

De fe nd ants have a

pp e a le d a nd ra ise the se iss ue s:

1. Whe the r the Tr ia l Cour t er re d in shif tin g the burd e n to re qu ir e the de fe nd ants to prove a n absenc e of undue influence by clea r and c onvincing evidenc e?

2. Whether appe llants met the burden of proof?

3. Whe the r t

he c a se sh ou ld b e dis mis se d b e c a us e of pr ior dis mis sa ls?

4. Whe the r t

he jud g me nt a g a ins t Pa tr ic ian L oh mann sh ou ld b e re ve rs e d, or in the a lte rn a tiv e , w he the r s he sh ou ld b e g ra nte d a ne w tri a l?

5. Whether Ronald should have be en perm i t t ed t o testify as to his mother’s ins tr uc tio ns in a c tin g a s h e r a

tto rn e y -i n- fa c t?

6. Whether equity

require s that this case be rema nded?

Ronald argues the Trial Court e rre d in f inding that a conf

idential relationship ex isted, and in shifting the burden of proof to Ronald to show t hat t here was no undue influence. The Tr ial Court had found ther e wa s a “le g al” c onfidential re lationship v is a v is the po we r of a tto rn e y , a

nd a lso that there was a “f

amily ” ty pe conf idential relationship, because A nne and Rona ld were mother and son, and there wer e suspicious circ umstances surr ounding the transac tions at issue.

Essentially , Ronald argues the powe r of attorney was insuffic ient to cre ate a leg al

c on fi de nti a l r e latio ns hip be c a us e it w a s n e ve r e xer c ise d b y him

.
There is no question that a leg al conf idential relationship i s established by virtue of execution of a powe r of attorney , wher e said powe r of attorney is ex erc ised, and that the ex istence of such a relationship coupled with a transaction where the dominant party rec eives a benef it gives rise to a r ebuttable pr esumption of undue influenc e. Matlock v . Simpson , 902 S.W .2d 384 (Tenn. 1995). In this case, Anne execu t ed a Powe r of Attorne y naming Ronald her attorney -in-fa ct on Fe bruar y 20, 1998.

Ronald’s argument reg ardingthe exis tence of a leg al confide ntial relationship at the time the annuity

benef iciarie s were chang ed misses the point. First, he a rg u es t hat the powe r of attorney h ad n o t y et bee n executed whe n his mother sent the letter r equestingthe cha ng e of benef iciarie s on or ar ound Fe bruar y 17, 1998. There is no dispute, however , that the letter w as insufficient to ef

fec tuate the c hang e of be nefic iary , as wa s evidenc ed by Ex h i b i t 2 6 , and that theRonald argues that one of the base s for the Tr ial Court’s finding , i.e. the fa ct that the 2 Wil l provided for

Ronald and De nnis “equa lly ”, wa s faulty , beca use the Will l eft the r emainder of the amount Anne put in trust for her estrang ed son Eric to Dennis solely , and could have the

e ff e c t of g ivi nghim

a g re a te r s ha

re un de r t he Will. Whil e thi s c ou ld b e tr ue , th a t r e su lt i s conting ent upon the cir cumstance s of the trust at the time of Er ic’s death, which ca nnot be pr e dic te d. F ur

the r, thi s w ou ld n ot s up po rt Ron a ld’ s p os iti on

that A nn e wa s a

ng ry wi th D e nn is and intended to c ut him off financ ially - in fac t, it would show just the opposite.

6 execution of additional forms wa s require d. I f t he additional forms had not been later filled out and signe d by Ronald, the cha

ng e would not have taken e ffe ct, and the a nnuities would stil l have g one to Rona ld a

nd Dennis equally

. Clearly
, the power of attorne y

was in ef fec t at the time the bene ficiar y
on the annuities was actua lly chang ed. Also, Ronald admitted at trial that he si gn ed h i s m o t h er’s

n am e to t he for

ms that actually

chang ed the be nefic iary on the annuities while his mother wa s hospitaliz ed, and that he did so pursuant to his power as attorne y -in-fa ct. The Court prope rly found that a leg al confide ntial r elationship exis ted betwee n Anne and Ronald at the time t h e a n n u i ties benef iciary was c hang ed, and the re w as no question that Ronald rec eived the benef it of the cha

ng e. Ac c or din g ly , th e Tr ia l Co ur t pr op e rl y fo un d th e pr e sump ti on of un du e inf lue nc e aro se and

ha d to be re bu tte d b y

c le ar a nd c on vin c inge vid e nc e wi th r e g ard to t he annuit ie s.

The Tr ial Court concluded that no such leg al conf idential relatio n s h i p h ad been established at the time the ba nk acc ounts w er e change d, but that a “f amily or other” ty

pe of

c on fi de nti a l r e latio ns hip did ex is t. W hil e an o rd ina ry pa re nt/ a du lt c hil d r e latio ns hip is n ot pe r se confide ntial, it can be if ther e is a showingthat circ umstances e x isted that could have destroy ed the fr e e wi ll o f t

he do no r, su c h a s w he re the re are e le me nts of do mi ni on or c on tr ol, wh e re the re is a showing of senili ty

or phy sical/mental debility , or dure ss/fraud, e tc. Kelly v. Allen , 558 S.W .2d 845 (Tenn. 1977). We g ive defe renc e to the trial court’s finding that a conf idential relationship ex isted. W imley v . W

imley , 2009 WL 2588998 (Tenn. Ct. App. Aug . 21, 2009).

H e r e , th e Trial Court found ther e we re suspicious cir cumstance s which indicate d that Anne ’s fr e e wi ll wa s des tr oy e d, su c h as he r ad va nc e d ag e and ill he a lth , h e r d e pe nd e nc e on Ron a ld for he r day -to-day

car e/nee ds, her g rief ove r the loss of her husband and anxiety over the health of her da ug hter a nd her own health problems, Ronald’s involvement in a ll of her f inancial a nd persona l aff airs, Anne ’s unex plained chang e of hear t toward De nnis, and Ronald’s attempts to block contac t betwee n Anne a

n d Dennis and to ke ep De nnis out of her life in the months bef ore he r death. The Court found it signific ant t hat Anne provided for Dennis i n her Will ex ecute d on Fe bruar y 20, 1998, y et sent out letters of instruction day s befor e asking that he be re moved from he r bank a ccounts a nd annuity policies. I t was noted that the l etters of instruction sent out to the banks and annuities we re signe d by Anne in blank f

orm, and that the a ccount number s were later f illed in by Ronald and then the letters we re ma iled to various financial instituti ons. Whi le Ronald testified that this was done at his mother’s dire ction and with her knowledg e, the Trial Court found his testimony on these issues to b e inc re dib le and

se lf -s e rv ing . T he Court

fo un d th a t Ro na ld f

a ile d to sh owthe fa ir

ne ss of the se t ra n s ac t i o n s , an d

t h e e v i d en ce d o es n o tp re p o n d er at e a gai n s tt h e C o u rt ’s fi n d i n g. 2I t should also be noted that Ronald’s ar g ument reg arding“unfa irness” if the

jud g me nt i s u

ph e ld b e c a

us e Ron a ld w ou ld r e c e ive le ss f ro m th e e state tha

n D e nn is i s a lso inacc urate , beca

use the a ssets in dispute herein pa ssed outside the estate , and the Tr ial Court’s

ru lin g do e s n oth ingto c ha ng e the fa c t th a t Ro na ld g ot n e arl y 3 ti me s mo re of

his mot he r’ s e state tha n D e nn is d id - it s imp ly

div ide s th e se no n- pr ob a te a sse ts e qu a lly be tw e e n th e tw o s ibl ing s.

7 Ron a ld a rgue s th a t e ve n if the Tr ia l Cou rt pr op e rl y sh if

te d the burd e n of pr oo f to h im, he met the same by showing clea r and convincing evidenc e that the transa ctions were fair. H e ar g ues that Anne e x ecute d her Will and Power of A t t o rn ey t h re e d ay s after sending out the letters of instruction which cha

ng ed owne rship of t he bank acc ounts and attempted to chang e bene ficiar ies on the annuities, and this shows that she rec eived independe nt le g al advice at that time, and could have “undone” those transa ctions had she c hosen to do so.

Once the pre sumption of undue influence has arisen, the burden of proof shifts to the d e f e n d an tt o s h o w t h e f

a i r n e s s o f t h e t r an s a c t i o n ( s ) b y c l e ar an d c o n v i n c i n g e v i d e n c e

. G e n e r a l l y, thi s r e qu ir e s a

sh ow ingthat th e do no r r e c e ive d in de pe nd e nt a dv ic e re g ard ing the tra ns a c tio n in question, but can a lso be shown by a lack of sus picious circumstanc es surroundingthe transa ction. Matlock . A transa ction is fair if the donor h ad the ca pacity to conduct the tra

nsaction and a cted under he r own fr ee a g ency in so doing. Ma tte r of Esta te of D e pr ie st , 733 S.W .2d 74 (Tenn. Ct. App. 19 86 ). Al so , in

e va luatin g fa ir

ne ss, the c ourt sh ou ld loo k a t wh e the r the a c t is unju st o r u nn a tur a l, and whether it differ s from the donor’s pre viously expressed intent. Thompson v. Thompson , 2009 WL 637289 (Tenn. Ct. App. Mar . 12, 2009). The f airne ss question is a question of fac t. Id.

I n this case, ther e is no ev i d en ce that Anne r ece ived independe nt leg al advice

r e g ar d in g th e tr an s a c ti o n s in qu e s ti o n

. T h e f a c t th a t s h e s aw an a tt o r

n e y an d e xe c u te d a Will and Power of Attorney within da y s of sending out the letters of instruction does not demonstrate that she

rec eived a

ny advice reg ardingthese tra nsact ions. The Court found that many suspicious circ umstances e x isted, such as the f act that Anne included Dennis at least e qually with Ronald when

wr iti nghe r Wi ll, and

that sh e ha d p re vio us ly

lis te d h im a s c o- ow ne r a

nd c o- be ne fi c iary

on the a sse ts in question, but then inex plicably chang ed owne rship/benef iciarie s (with R o n al d ’s help) a nd left these a ssets solely

to Ronald. W e ag ree with the Trial Court who found the transa ctions in question clea rly wer e at odds with Anne ’s intent as ex presse d in her W ill, and in the way she had c onducted her a ffa irs prior to Dec ember 1997. We reit er at e t h ere was suff icient evidenc e to conc lude that Ron a ld too k a dv anta g e of his mot he r’ s f ra g ile e mot ion a l and

ph y sic a l st a te so a s to inf lue nc e he r t o benef it him i n these tra

nsactions, and that he r own fr ee w ill was destroy ed.

Ronald prese nted no evidenc e to show that Anne was a cting under he r own fr ee
a g e nc y in l e a vin g the ba

nk a c c ounts /annuit ie s so le ly to R on a ld. We c on c lud e , a s did the Tr ia l Co ur t, that Ronald failed to re but the presumption of undue influe nce.

Next, Ronald argues that the c ase should have been dismissed base d on re s ju dic ata , which arg ument was ra ised for the first time post-trial. Re s ju dic ata is a defe nse that must be raised in answer to a claim, see Us re

yv . Le wis , 553 S.W .2d 612 (T en n

. Ct. App. 1977), which wa s not8

done in this case. Mor eover , for re s ju dic ata to a pp ly , th e re mus t be tw o s uit s b e tw e e n th e same part ies on the same c ause of action. Ri c ha rd

so n v . Te nn esse e Bd

. o f D e nti str y , 913 S.W .2d 446 (Tenn. 1995) . I n this case , the s uit filed i n fede ral c ourt did not involve the same def endants a nd the

same c a us e of a c tio n. Th is i ssu e is w ith ou t me ri t.
Next, appellants argue ther e should have been no judg ment enter ed ag ainst Patricia. I t w a s st ipu late d, ho we ve r, that sh e joi ntl y ow ne d c e rt a in p ro pe rt ie s/a c c ounts that w e re un dis pu te dly purcha sed/funded w ith the proce eds of the assets in que stion. Thus, the judg ment which voided the disputed t ransactions and plac ed liens upon the prope rties would nec essar ily have to include her. Th is i ssu e is a lso wi tho ut m e ri t.

Ronald also argues t hat he was not allowe d to testify reg ardingthe instructions Anne g ave him with re g ard to the assets i n dispute, and that the hearsa y exception found in Tenn. R. Evid. 803(1.2)( F) is applicable to this case to allow hi s testimony

. This rule pe rmits a “stateme nt offer ed ag ainst a par

ty that is

. . . a st atement by a person that is in privity of estate with the party .” In other words, fo r t h es e all eg ed stateme nts Ronald seeks to rely upon that wer e made by Anne to be introduced a g ainst Dennis, Anne a nd Dennis would have to be in privity of estate . This rule wa s i n t e n d e d t o a l l o w a dm i s s i o n s b y p r e d e c e s s o r s i n t i t l e t o c o m e i na g a i n s ta c u r r e n tt i t l e h o l d e r

p art y. See Annotations to Rule. This rule simply has no appl i cation to the fa cts of this case . Moreove r, this arg ument was not ra ised at trial and c annot be r aised for the first time on appe al. Simpson v. Frontier Community Credit Union ., 810 S.W.2d 147 (Tenn. 1991)

.

Finally , Ronald argues that this case s h ould be re manded pur suant to principles of

e qu ity be c a us e his a tto rn e y fa ile d to ade qu a te ly re pr e se nt his int e re sts in c e rt a in m a tte rs . T he re is

no su c h r e c ours e in t

he re a lm of c ivi l law fo r al le g e d ine ff e c tiv e a ssi sta

nc e of c ouns e l, a

nd if Ron a ld has any claim in that reg ard, it would have to be addre ssed in a claim ag ainst his attorney . This issue is a lso wi tho ut m e ri t.

The Judgment of the Trial Court is aff irmed and the cause rema

nded with the cost of the appe al assesse d to Ronald D. L ohmann.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.