### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 8,

2000 Session PHILIP PELTZ v. SARAH V. PELTZ, ET AL 

### . Appeal from the Chancery Court for Williamson County

No. 22868 Russ Heldman, Judge

No. M1999-02299-COA-R3-CV - Filed October 18, 2000

The issue on appeal is w

hether a notary

was negligen

t when she attach

ed her certific

ate to a forged signatureon a deed. The Chancery Court of Williamson County

held that she was n

ot. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opi nion of t he court, in which W ILLI AM B. C AIN and H OLLY K. L ILLARD , JJ., joined. Alfred H. Knight an

d A. Russel

l Willis, Na

shville, T ennessee , for the a ppellant, Philip Pelt

z. Cyrus L. Booker and Charlnette A. Richard, Nashville, Tennessee, for the appellees, Todd Hanson and NationsBank of Tennessee. OPINION I. The plaintiff, Philip Peltz, and his wife were tenan t s in common with Mrs. Pe ltz’s parents in a forty-eight acre tract of land in Williamson Cou nty. In 1985, Mrs. Peltz and her brother went to the Brentwood office of NationsBank where they sought out a bank employee who was also a notary public. They presented themselves as husband and wife who wished to sign a deed conveying their interest in the forty-eight acres to M rs. P eltz’s parents. Mrs. Peltz testified that it was her brother’s idea to forge Mr. Peltz’s signature. Mrs. Peltz and her brother produced the deed, signed it, and obtained the following notary’s certificate:

PERS ONALLY appeared before me, the undersigned, a

Notary Public in and for said County and State, the within named Philip Peltz and wife Sarah V. Peltz, the bargainors,

with whom I am personally acquainted, and who acknowledged that they executed the within instrument for the purposes therein contained.1 Tenn. Code Ann. § 66-22-106(c) contains a test to determine when a clerk or

deputy clerk has satisfactory evidence that the person signin g an instrume nt is really the person w hose signature is used. The court in Figuers v . Fly decided to pass over the quest ion of whether this s ection also appli ed to notaries publi

c, because in t

he court’s

opinion (continu ed...) -2- The deed was recorded by Mrs. Peltz’s parents, and they later conveye d part of the property to third parties.
Mr. Peltz discovered the chicanery in 1994, when he and Mrs. Peltz were going thro ugh a divorce in California. He sued to set aside the fraudulent deed and to partition the remainder of the pro pert y. This court ruled in his favor, and he, Mrs. Peltz, and her parents entered into a settlement of their differences. The terms of the settlement were not disclosed in this case. Mr. Peltz sued the notary and the bank as her employ er for negligently notarizing a forge d signature. The pro of s how ed t hat bot h Mr s. P elt z an d he r br oth er we re s tra nger s to the not ary. The notary testified that she did not specifically remember the transaction bu t that h er practice wa

s to require strangers to pr

oduce some identif

ication to show that

their si gnatures were genuine. The most common form of i

dentification she

required was a d

river’s license

with a photograph, and

to the best of her k nowledge that is the practice she followed in this case. She did not have a bo ok in which she noted the transaction, and she was not certain that she kept a book in 1985.
Mrs. Peltz was the only

other witness who was present at the transaction. She testified that she may have had a Tennessee driver’s license whe n she appeared at the

bank and thatthe notary checked her identification. She said her brother told the notary that he was Philip Peltz but that he had forgotten h

is wallet. The court granted

the notary’ s Tenn. R. Civ. Proc. 41.02 motion to dismiss a t the close of the plaintiff ’s proof. Th e court’s or der contain s the follo wing findin g: From th e testimony of the parties and witnesses in open court and a review o f th e exhibits , this Court found that Sarah Peltz was not a credible witness, and that her tes tim ony, including her te stimony reg

arding the eve

nts of July 23, 1985 , should be givenno weight, and

that Defendant Hanson

was a credible witness, but that she had no recollection of

the events of

July 23, 1985. As such, this Court found that there was insufficient evidence to support any finding that Defendant Hanson failed to take such actions as a rea

sonably pru

dent person would

take prior to notarizing thedeed in question as required to place liability on Defendants Hanson or NationsBank. II.
A nota ry public i s held to the standard of a reasonably prudent person to ascertain a n acknowledger’s identity, but the notary is not an insurer of the truth of the recitals. Figuers v. Fly , 193 S.W. 117 (Tenn. 1916). 1 A not ary is a public officer, and a presumption arises that notaries1 (...continued)

the notary fai

led to pas s the lesser

common -law test of a reasonably prudent person. The par

ties i n this case did not address the questio n of wh ether the statu te has a ny app lic ation to

nota rie s. Th eref ore, we will not

address t

hat questi

on either. -3- perform their public duties correctly. In Re Marsh , 12 S.W.3d 449 (Tenn. 2000); Manisv. Farmers Bank of Sullivan Coun

ty , 98 S.W.2d 313 (Tenn. 1936).
In Figuers v. Fly , 193 S.W. 117 (Tenn. 1916), the no tary took an acknowledgment of a forged signature o n th e strength of tw o witnesses who sai

d the imposter was t

he person whose signaturehe put on the deed. The notary knew the two witnesses and considered them to be of good standing. But

the court thought that these other circumstances should have put the notary on guard: the fact that the notary was not well acquainted with either of the three persons and that they made repeated visits to him for notary services when he lived in an inconvenient place and notary services could have been o

btained in their own neighborhood. The court concluded that the notary did not exercise due care in failing to ascertain the identity of the imposter.
In Lowe v . Wr ight, 292 S.W.2d 413 (Tenn. Ct. App. 1956), the n

otary aff ixed his seal to numerous deeds certifying that the bargainors

had personally

appeared before him. The bargainors were identified in the deed and the certif icate as husband and wife, but only one person had ever appeared and he turned out to be an impostor. Despite the fact that the imposter had been identified by a real estate agent with whom the notary freque ntly did business, the court concluded that the notary’s negligence was clea r – clearer even than the notary’s neg ligence in Figuers v. Fly

. In Manufacturers Acceptance Corporation v. Vaughn , 30 5 S.W .2d 513 (Tenn. Ct. App. 1957), a person appear

ed before the no

tary repr esenting himself

to be the owner of an automobile. He had the certificate of

title in the true own

er’s name plus a letter of re

commendation and a

credit card. In addition, the perpetrator of the fraud, w ith whom the notary was acquainted, and the notary’sex-partner

identified the imposter as the owner of the automobile. The court concluded that the notary exercised reasonable care in a ttempting to identify th

e person as the on

e whose name appeared on the title certificate.
In this case, if Mrs. Peltz cannot be believed, there is no evidence of the circumstances under which the notary performed her duties. The notary testified as to her usual practice, but she did not have any specific memory about the tra nsaction. There is no proof, therefore, t o rebut the presumption that the notary performed he r duties co rrectly. In Re Marsh , 12 S.W.3d 449 (Tenn. 2000). The appellant,however, attac ks the chancellor

’s decision to

igno re M rs. Pel tz’ s te sti mon y. As we have seen, the chanc ellor foun d that she was not a credible witness and that her testimony should be given no weig

ht. As to the chanc

ellor’s credibil

ity determin

ation , it is entitled to great weight on appeal. Rice v. Rice , 983 S.W.2d 680 (Tenn. Ct. App. 1998); Town of Alamo v. ForcumJames Co. , 327 S.W.2d 47 (Tenn. 1959). We have care fully read Mrs. Peltz’s testimony and we-4-

cannot find that the chancellor erre d in deciding tha t she was not cred

ible. Her answer

s at some points were evasive, and she had to be prodded to admit what she had earlier admitted in her interrogatory

answers. Her statement

that it was her brother’s idea to transfer the property and that she just went along wi

th his wishes has a p

articularly

false ring to it. Therefore, we will not disturb the chan cel lor ’s d ete rmi nat ion abo ut M rs. Pel tz’ s cr edi bil ity. The case against

the bank is based on respon

deat superior. I

f the notary

was not neglige

nt, the case agai

nst the bank also fa

ils. It results that the chancellor’s order is affirmed and the cause is rema nded to the Chancery Cour t of Williamson County for any further proceeding s that may be necessary. Ta x the costs on appeal to the app

ellant.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.