09/28/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 23, 2020 Session ELIZABETH KERR ET AL. v. LYDIA HENDERSON ET AL. Appeal from the Chancery Court for Johnson County No. 7226 John C. Rambo, Chancellor No. E2020-00112-COA-R3-CV In this case involving the inheritance of an investment account, the three plaintiffs filed a complaint in September 2016, asserting, inter alia, that a letter executed by their father prior to his 2007 death had operated to create an express trust concerning the account, for which their stepmother had acted as trustee with the understanding that the plaintiffs were to be the beneficiaries of the account after her death. The plaintiffs alternatively sought imposition of a constructive trust. The plaintiffs’ stepmother, who is the subject decedent in this action, had died in April 2016. The plaintiffs initially named as defendants the co- executors of the decedent’s estate, as well as the financial institution holding the investment account. The trial court subsequently entered agreed orders to dismiss the financial institution as a party and to substitute as defendants the decedent’s three adult children from a previous marriage. Upon competing motions for summary judgment and following a hearing, the trial court granted summary judgment in favor of the plaintiffs, finding that an express trust had been created by the writings of the plaintiffs’ father and that, alternatively, a constructive trust should be imposed based on the combined writings and actions of the plaintiffs’ father and the decedent. The defendants filed a motion to alter or amend the judgment, which the trial court denied following a hearing upon finding in part that new evidence submitted by the defendants should not be considered. The defendants have appealed. Discerning no reversible error, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and JOHN W. MCCLARTY, J., joined. Mark W. McFall, Johnson City, Tennessee, for the appellants, Lydia Henderson, Scott Douglas, and Benjamin Douglas. Andrew T. Wampler and John R. Graham, Kingsport, Tennessee, for the appellees, Elizabeth Kerr, Victoria McCoy, and Angela Sturdivant. OPINION I. Factual and Procedural Background The plaintiffs, Elizabeth Kerr, Victoria McCoy, and Angela Sturdivant (collectively, “Plaintiffs”), initiated this action by filing a complaint on September 30, 2016, seeking declaratory judgment in the Johnson County Chancery Court (“trial court”) that the writings and actions of their father, Edwin Robinson Sturdivant, and stepmother, Mary Foote Sturdivant (“Decedent”), had operated to create an express trust related to an investment account with Raymond James Financial, Inc. (“the Account”). Plaintiffs alternatively asked the trial court to impose a constructive trust. Plaintiffs originally named as defendants Raymond James Financial, Inc. (“Raymond James”), and the two co-executors at that time of Decedent’s estate, Jeannie Countiss and Karla Prudhomme (collectively, “Co-Executors”). The trial court subsequently dismissed Raymond James from this action without prejudice by agreed order. Upon Co-Executors’ resignation from representation of Decedent’s estate, the trial court entered an order on May 10, 2019, inter alia, substituting Decedent’s three children, Lydia Henderson, Scott Douglas, and Benjamin Douglas, as defendants in this matter (collectively, “Defendants”). A central issue on appeal is whether the trial court erred by finding that evidence presented by Defendants for the first time with their Tennessee Rule of Civil Procedure 59.04 motion to alter or amend the court’s summary judgment order did not warrant consideration as newly submitted evidence. At the time of the trial court’s August 2019 summary judgment order, the facts found by the trial court had not been challenged by any evidence presented prior to the summary judgment hearing. The trial court specifically found as follows: Plaintiffs are the adult children of Edwin Sturdivant (“Edwin”). Edwin married Mary Foote Sturdivant [(“Decedent”)] around 1975. [Decedent] had three children from her first marriage, Lydia Douglas Henderson, Scott Douglas, and Ben Douglas. Sometime before 2000, Edwin opened an investment account with Raymond James in Memphis, Tennessee (“the Account”). During the marriage of Edwin and [Decedent], Edwin kept the Account as separate property in his name alone. 2 As of June of 2000, the Account held various state and municipal bonds with a face value of approximately One Million Dollars ($1,000,000.00). Edwin’s Last Will and Testament was dated June 20, 2000. It states, “I bequeath to Mary Sturdivant [Decedent] one thousand Tennessee bonds valued in total at face, not market value, at $1 million. She shall have the right to pick the ones which best fit her needs.” Edwin’s Last Will and Testament did not mention any of [Decedent’s] natural children. In March 2004, Edwin wrote a letter to [Decedent] instructing her to draft her own Last Will and Testament leaving the funds within the Account, their house located at 430 Cedar Street in Mountain City, and any additional income from the Account saved by [Decedent] to Edwin’s natural children with a reference to his grandchildren. Edwin died on September 12, 2007. On August 22, 2008, an Agreed Order was entered by the Johnson County Chancery Court, Probate Division, closing the Estate of Edwin Sturdivant. The August 22, 2008 Agreed Order found in-part that [Decedent] received all of the bonds owned or held on the date of distribution in partial satisfaction of the bequest made within Edwin’s Last Will and Testament. The bonds bequeathed to [Decedent] have been traced and remain in the Account. Two months after Edwin died, Plaintiff Elizabeth Kerr received a letter from [Decedent] stating that [Decedent] had received a statement from Raymond James and that she would continue to carry a personal liability umbrella policy to cover the one million dollars in the Account. On May 13, 2015, Elizabeth Kerr wrote a letter to [Decedent] asking [Decedent] to designate Edwin’s three natural children as beneficiaries of the Account to avoid probate. In August of 2015, [Decedent] sent each of the Plaintiffs a cover letter and a Raymond James Transfer On Death Form to be completed by the Plaintiffs as beneficiaries of the Account. The letter from [Decedent] to Elizabeth stated, “Hope this will allay some of your anxieties.” The letter from [Decedent] to Victoria McCoy 3 stated, “There’s no rush since I’ll be gone for several weeks toward the end of the month and won’t get this back to them until I get back.” Plaintiffs each completed and returned Transfer On Death Forms to [Decedent] around August or September of 2015. Raymond James never received the Transfer On Death Forms. Edwin’s 2004 letter is consistent with the written statements made by [Decedent] to Elizabeth Kerr in 2004, 2007, and 2015; to Victoria McCoy in 2015; and to Angela Sturdivant in 2015. The 2004 letter and the actions of Edwin and [Decedent] indicate their mutual desire for the bonds to transfer to Plaintiffs upon [Decedent’s] death. All the actions of [Decedent] indicate that it was her intent to hold the Account for the Plaintiffs. [Decedent] attempted to comply with the 2004 letter by sending the Raymond James Transfer On Death Forms. A mistake occurred during the attempt when the Transfer On Death Forms were lost in the mail or misplaced. [Decedent] died testate on April 13, 2016. [Decedent’s] Last Will and Testament did not mention the Account, Transfer On Death forms, or name specifically the plaintiffs as beneficiaries or bequeathing this account to them. [Decedent’s] Will was probated on April 21, 2016 and her Estate remains open. (Paragraph numbering omitted.) Co-Executors, represented by attorney George T. Wright, filed an answer on January 6, 2017, asserting as affirmative defenses res judicata relative to the conclusion of Mr. Sturdivant’s estate and “specific estoppel” as to Ms. Kerr due to her former role as co-executor of her father’s estate.1 On February 23, 2018, Co-Executors filed a motion for partial summary judgment, requesting that Decedent’s residence be released from any 1 As the parties have noted on appeal, Ms. Kerr is a licensed attorney and a sitting state appellate court judge in the state of Texas. 4 claim asserted by Plaintiffs, who had averred in their complaint that the residence was included in the purported express trust or should be in the constructive trust with the Account. Upon Plaintiffs’ response stating that they did not contest the release of the residence, the trial court entered an order granting partial summary judgment to Co- Executors and releasing the residence from the reach of this action on July 13, 2018. Following the trial court’s sua sponte placement of this matter on its trial docket and a subsequent agreed order continuing proceedings, the trial court entered an agreed scheduling order on November 30, 2018. The court set trial for May 9, 2019; a discovery deadline of April 1, 2019; and a deadline for dispositive motions of December 31, 2018. On December 27, 2018, Co-Executors filed a motion for summary judgment, again arguing that this action was precluded by the administration and closing of Mr. Sturdivant’s estate. As to the letters attached to Plaintiffs’ complaint and presented as evidence of a trust, Co-Executors stated in their summary judgment motion: “Assuming that all of the letters presented are genuine and for the purposes of this Motion admitted, the same could not and did not act as addendums or codicils to the Will of Edwin Sturdivant.” Co-Executors attached to their motion probate documents related to Mr.