Manning v. Snyder, No. E2008-00183-COA-R3-CV (Tenn. App. 3/26/2009)

• Decision Date: 26 March 2009
• Docket Number: No. E2008-00183-COA-R3-CV.,E2008-00183-COA-R3-CV.
• Parties: CARLYNN MANNING ET AL. v. DALE K. SNYDER ET AL.
• Court: Tennessee Court of Appeals

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CARLYNN MANNING ET AL. v. DALE K. SNYDER ET AL.

No. E2008-00183-COA-R3-CV.

Court of Appeals of Tennessee, at Knoxville.

December 2, 2008 Session.

Filed March 26, 2009.

Appeal from the Chancery Court for Polk County; No. 7149; Jerri S. Bryant, Chancellor.

Judgment of the Chancery Court Affirmed; Case Remanded.

William J. Brown, Cleveland, Tennessee, for the appellants, Carlynn Manning and Gerald Z. Hickey.

Johnny L. Woodruff, Chattanooga, Tennessee, for the appellee, Susan Hendricks.

No appearance by, or on behalf of, Dale K. Snyder and Sheridan E. Snyder.

Charles D. Susano, Jr., J., delivered the opinion of the court, in which Herschel P. Franks, P.J., and D. Michael Swiney, J., joined.

OPINION

CHARLES D. SUSANO, JR., JUDGE.

Following the death of Edith Leona Hickey ("the Deceased"), Carlynn Manning and Gerald Z. Hickey ("Plaintiffs") filed a declaratory judgment action to set aside a quitclaim deed and dissolve a trust known as the "Irrevocable Trust of Edith Leona Hickey" ("the Trust"). The beneficiary of the Trust was Susan Hendricks ("the Beneficiary"). The deed and the Trust document were drafted by counsel and the quitclaim deed was recorded. Plaintiffs assert that the deed was not "delivered" and that the trustee of the Trust is not capable of acting as trustee. Plaintiffs also argue that the deed was void because it, according to them, contained "no description." In addition, Plaintiffs claim that whiteout was used on the Trust document to change the trustee from Sheridan E. Snyder ("Mrs. Snyder") to her husband Dale K. Snyder ("Mr. Snyder"), rendering the Trust void. Plaintiffs also assert that the Trust instrument is void because there was no actual delivery of the deed to the trustee at the time the Trust was created. The trial court held that the quitclaim deed was delivered in that there was not clear and convincing evidence that the Deceased intended to retain control over the deed and delay its delivery. In addition, the court held that Mrs. Snyder is capable of acting as trustee. The court found that the whiteout change on the Trust instrument was ineffectual to change the trustee, and the court reformed the Trust document, as permitted by Tenn. Code Ann. § 35-154-15 (2007), to give effect to the Trust as originally written. The court also held that actual physical delivery of the quitclaim deed to the trustee at the time the Trust was created was not necessary to the creation of a valid trust. Plaintiffs appeal. We affirm.

I.

This case was tried over a period of two days in June 2007. The trial court heard closing arguments in August 2007. The trial court made the following findings of fact:

The [P]laintiffs in this case . . . are the biological children of [the Deceased];

[The Beneficiary] was the adopted daughter of [the Deceased];

Defendants [Mr. Snyder] . . . and [Mrs. Snyder] . . . are parties because of being named in certain instruments executed by [the Deceased];

[The Deceased] made an appointment with Attorney G. William Little ( . . . "Mr. Little") in October 1998, to create a will;

Mr. Little was of the opinion [the Deceased] had the mental capacity to create a will and prepared one for her;

During the meeting to prepare the will, [the Deceased] told Mr. Little she had given to plaintiff Carlynn Manning what she intended for her to have during her lifetime, and intended to split one piece of property between Zane Hickey and [the Beneficiary];

Later, on June 30, 1999, [the Deceased] also told Mr. Little she was feeling pressure from her children about her property and wished to create an irrevocable trust to prevent plaintiff Carlynn Manning from challenging what [the Deceased] wanted done; this resulted in drafting of [the Trust];

The Trust document originally named Mrs. Snyder as trustee with defendant Mr. Snyder as substitute or backup trustee;

After a discussion with Mrs. Snyder, whiteout was used on the documents and the trustee was changed to Mr. Snyder;

There was no evidence [the Deceased] approved of this change;

When this change was made . . . the grantee, Mrs. Snyder, [on] the Quitclaim Deed [was not changed] The Quitclaim Deed was recorded with the Register of Deeds of Polk County and returned to Mr. Little, who retained them [sic] in his file;

Although Mr. Little was clearly the agent of the Grantor and [the Deceased], there was no evidence [the Deceased] intended to retain any control over the deeds [sic] or to delay delivery;

Mrs. Snyder was and is capable of handling the duties of trustee;

Plaintiff Carlynn Manning knew about the will drafted by Mr. Little in October, 1998;

Because of this knowledge, Plaintiff Carlynn Manning put pressure on [the Deceased] to change her will, and [the Deceased] related this to Mr. Little prior to creation of the Trust;

Many statements made by Plaintiff Carlynn Manning were inconsistent, and [the Beneficiary] was far more credible than Plaintiff Carlynn Manning.

(Paragraph numbering in original omitted.)

II.

The parties make no specific statement of issues.¹ The issues² Plaintiffs discuss in their brief are:

Whether the trial court correctly made a finding of fact that the Deceased did not intend to retain control over the Deed or to delay its delivery.

Whether the trial court correctly made a finding of fact that Mrs. Snyder was and is capable of handling the duties of trustee.

Whether the Quitclaim Deed was valid and thus effective to transfer the interest from the Deceased into the Trust. Whether a valid Trust was created given that there was no actual physical delivery of the Quitclaim Deed to the trustee.

III.

Our review is de novo upon the record of the proceedings below; however, that record comes to us with a presumption that the trial judge's factual findings are correct. Tenn. R. App. P. 13(d). We must honor this presumption unless we find that the evidence preponderates against those findings. Tenn. R. App. P. 13 (d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Our review of the trial court's conclusions on matters of law, however, is de novo with no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise review the trial court's application of law to the facts de novo, with no presumption of correctness. Clark v. Clark, No. M2006-00934-COA-R3-CV, 2007 WL 1462226, at *3 (Tenn. Ct. App. M.S., filed May 18, 2007).

Trial courts, unlike appellate courts, are able to observe witnesses as they testify and to assess their demeanor and other indices of credibility. Thus, trial courts are in a unique position to evaluate witness credibility. See Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966). Accordingly, appellate courts will not re-evaluate a trial court's assessment of witness credibility absent clear and convincing evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999), Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315-16 (Tenn. 1987).

IV.

A.

The trial court made factual findings as follows: "Although Mr. Little was clearly the agent of the Grantor and [the Deceased], there was no evidence [the Deceased] intended to retain any control over the deeds or to delay delivery . . . ." The court further stated, "Therefore, the Court cannot find by clear and convincing evidence that delivery was not intended."

The trial court correctly stated that "clear and convincing evidence" is the burden on litigants who seek to set aside a deed. Myers v. Myers, 891 S.W.2d 216, 219 (Tenn. Ct. App. 1994) ("[W]e note that to set aside a deed, it is well-settled that the proof must be clear, cogent and convincing.") (citations omitted). See also Estate of Acuff v. O'Linger, 56 S.W.3d 527, 531 (Tenn. Ct. App. 2001).

Plaintiffs argue that the conclusion that the Deceased did not intend to retain any control over the deed or to delay delivery is not supported by a "preponderance of the evidence." Plaintiffs misperceive the burden, however. The burden was not on the Beneficiary to show that the deed was delivered, but on Plaintiffs to show by "clear and convincing evidence" that the Deceased did not intend to relinquish her control over the deed and intended to delay its delivery. See Jones v. Jones, No. 01-A-019005CH00192, 1991 WL 129197, at *4 (Tenn. Ct. App. M.S., filed July 17, 1991).

It is undisputed that the Deceased did not have possession of the deed after it was executed. Rather, she left the original deed with her attorney. In addition, at his deposition — made an exhibit at trial — Mr. Little testified, "[W]e would have been very specific that the transfer was truly irrevocable [sic] there would be no way for her to get those assets back out." Plaintiffs argue that the deed was not delivered because the attorney kept the original and did not send it on to the trustee. They assert that a physical transfer of the deed to the trustee was necessary.³

It is true that an undelivered deed does not effectively pass title from the grantor to the grantee. Miller v. Morelock, 185 Tenn. 466, 473, 206 S.W.2d 427, 430-31 (Tenn. 1947) (citation omitted) (title not passed when grantor requested deed not be recorded and then asked for, and received, deed back into his possession); Mast v. Shepard, 56 Tenn. App. 473, 476-77, 408 S.W.2d 411, 413 (1966) (citations omitted). Whether a delivery has occurred, however, is ascertained by determining the intent of the grantor and may be inferred from circumstances. Early v. Street, 192 Tenn. 463, 471, 241 S.W.2d 531, 534 (Tenn. 1951) (citations omitted). Under the law of conveyancing, "delivery" connotes more than the manual transfer of the deed itself; the concept is to place the deed beyond the grantor's control. Traders' Nat'l Bank v. First Nat'l Bank, 142 Tenn. 229, 234, 217 S.W.977, 978 (1919) (test of delivery is power of grantor to recall same).

In this case, the deed was placed beyond the control of the Deceased in that it was left in the possession of her attorney and he...