source: Caselaw Access Project

author: HOLLY M. KIRBY, J.,

license: Public Domain

text:
    Jon THOMPSON, Ed Gatlin, and Empire Express, Inc. v. J.T. DAVIS and Barbara Davis.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 20, 2009 Session.
    Sept. 8, 2009.
    Permission to Appeal Denied by Supreme Court Feb. 22, 2010.

      John J. Heflin, III, and John Marshall Jones, Memphis, Tennessee, for the appellant, J.T. Davis.
    Richard Glassman and Lewis W. Lyons, Memphis, Tennessee, for the appellees, Jon Thompson and Ed Gatlin.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined.

This is an action for contribution. The two individual plaintiffs and the defendant formed a limited liability company for the purpose of owning and operating an arena football team. To fund the team, the three investors took out two loans in their individual names. The business was a losing venture, and eventually the team was sold. The proceeds of the sale were used to pay all of the business’s debts except the remaining liability on the two personal loans. The two plaintiffs paid the balance of the loans out of their personal funds. The plaintiffs then filed the instant lawsuit against the defendant for contribution, alleging that he was jointly and severally liable for his pro rata share of the debt. The defendant conceded that he owed a small part of the debt, but argued that his liability should be reduced by the amounts distributed to the plaintiffs by the business. The defendant contended that the funds distributed to the plaintiffs should have been applied to the business debt. After a bench trial, the trial court held in favor of the plaintiffs. The trial court rejected the defendant’s claim that his debt should be offset, finding that the distributions made to the plaintiffs constituted a repayment of loans, not a distribution of capital. It also awarded the plaintiffs attorney’s fees. The defendant now appeals. We affirm the decision of the trial court in all respects.

Facts and PROCEEDINGS Below

In March 1995, Plaintiffs/Respondents Jon Thompson (“Thompson”) and Ed Gat-lin (“Gatlin”), along with Defendant J.T. Davis, M.D. (“Davis”), and Davis’s son-in-law, Kevin Hunter (“Hunter”), formed a Tennessee coz*poration called Memphis Arena Football, Inc. The company purchased and operated a franchise football team in the Arena Football League (“AFL”) called the Memphis Pharaohs, Inc. In 1996, the corporation was converted to a limited liability company. In 1997 or 1998, Hunter was fired. Hunter’s share was bought out by Thompson, Gatlin, and Davis, who then owned the company in equal shares. After that, Gatlin took over the management of the business, and all financial operations and recordkeeping functions were conducted out of his office.

The company operated in Memphis in 1996 and 1997. In January 1998, the company moved to Oregon. The name of the company was changed to Portland Arena Football, LLC, and in 1998 and 1999 it operated as the Portland Forest Dragons. In January 2000, the company moved again, this time to Oklahoma. Its name was changed to Oklahoma Arena Football, LLC, and in 2000 and 2001, its football team operated as the Oklahoma Wranglers. In 2002, the company sold the team back to the AFL for $5.8 million. In that year, the team played in Oklahoma City as a league-owned franchise. After that season, the team’s operations were terminated. Hereinafter, because of the sequential name changes to the business, we will refer to the parties’ businesses collectively as “the LLC.”

Ultimately, the parties’ business venture was financially unsuccessful. By the end of 2001, it became necessary for the LLC to borrow funds to keep the business afloat. To accomplish this, the parties took out two loans, the first from Trust-mark National Bank of Bartlett (“Trust-mark”) and the second from First Bank of Lexington (“First Bank”).

Trustmark Note

On December 19, 2001, the parties personally borrowed $300,000 from Trust-mark. The parties executed a promissory note in their personal capacities in favor of the bank (“Trustmark Note”). By the time the team was going to be sold, the LLC had repaid all but about $18,474 of the Trustmark Note. To pay the remaining balance, Gatlin and Thompson made payments totaling $17,800 to the LLC; the LLC then paid the bank the balance of the Trustmark Note. Davis did not contribute to the payment of the balance due on the Trustmark Note.

First Bank Note

In September 2002, the parties took out a second loan for $2.5 million from First Bank (“First Bank Note”). Contemporaneously, the parties loaned the $2.5 million to the LLC, executing a note that became the collateral for the parties’ individual loan from First Bank. The LLC made most of the payments on the First Bank Note. When the team was sold back to the AFL in 2002, $392,122 remained due on the First Bank Note. In December 2003, after this lawsuit was filed, Thompson and Gatlin personally bought the First Bank Note. Thompson and Gatlin then executed a second note (“the note purchase agreement”) in favor of First Bank for the amount of the loan balance. Davis was not a party to the note purchase agreement.

Lawsuit Filed

On October 24, 2003, Thompson and Gatlin (collectively, “Plaintiffs”) filed this lawsuit against Davis. The original complaint and the first amended complaint alleged that Davis was liable to the Plaintiffs for contribution to the parties’ business under a partnership theory of recovery. In November 2004, the Plaintiffs filed a motion for summary judgment as to liability. The trial court denied that motion on the basis that (a) there was no partnership agreement, and (b) the Tennessee Uniform Partnership Act did not apply because the parties had formed a corporation, not a partnership.

On June 12, 2006, the Plaintiffs filed their second amended complaint. The second amended complaint alleged generally that Davis was liable to the Plaintiffs pursuant to Tennessee Code Annotated § 47-3-116 for contribution of his pro rata share of debts that were owed by all of the parties but paid by only the Plaintiffs. The second amended complaint does not refer specifically to either the Trustmark Note or the First Bank Note; however, the two notes were later identified as the subject of the complaint. On November 28, 2006, Davis filed an answer denying liability to the Plaintiffs. Davis acknowledged that the notes were outstanding, but claimed, inter alia, that Gatlin and Thompson caused distributions to be made to themselves from the LLC, giving preference to themselves and depriving the LLC of funds needed to pay the LLC’s obligations to Trustmark and First Bank. Therefore, Davis asserted, he is entitled to offset his liability to the extent of any improper distributions. He also claimed that the debt on the Trustmark Note was discharged by the LLC, not by the Plaintiffs. Consequently, Davis claims, they are not entitled to any contribution from the discharge of that debt.

Trial

A bench trial was conducted in this matter on January 18, 2007. Gatlin, Thompson, and Davis all testified at trial, and their depositions were entered into evidence as well.

At the outset of the trial, a copy of the First Bank Note, executed by the parties, was admitted into evidence. Gatlin testified that the funds obtained by the parties from First Bank in exchange for the First Bank Note were loaned to the LLC. The resulting note between the individuals and the LLC then became the collateral for the First Bank Note. When the team was sold, the proceeds of the sale were used to pay all but about $392,122 of the total amount due on the loan. First Bank then asked the parties to purchase the note. Gatlin and Thompson did so by borrowing the $392,122 and executing another note to First Bank. Davis did not participate, nor did he offer to make any payments on the balance of the First Bank Note.

Next, a copy of the Trustmark Note was admitted into evidence. Gatlin testified that he and Thompson each contributed $8,900 to the LLC for the express purpose of supplying funds for the LLC to make the final payment on the Trustmark Note. Gatlin said that he believed that Davis owed one third of that amount as a joint obligee on the Trustmark Note. Gatlin acknowledged on cross-examination that, even without his and Thompson’s contributions, the LLC had sufficient funds at that time from which it could have paid off the Trustmark Note.

The LLC’s football team operation was generally a losing enterprise, so the parties were periodically required to infuse a substantial amount of their personal funds into the business operations. Gatlin testified that, over the course of operations, when the LLC needed cash to meet its expenses, he would call a meeting of the three LLC members — Thompson, Davis, and him. The parties had “numerous meetings at the Garden Café early mornings to discuss everything that [they] ever put in the corporation and everything that [they] ever took out of the corporation.” Early on, all three parties contributed the needed funds equally. In the last three years of the LLC’s operation, however, Davis stopped contributing because he did not have the funds. The Plaintiffs offered to buy some or all of Davis’s share of the LLC, but he refused, assuring the Plaintiffs that he would repay the Plaintiffs the amounts that they contributed on his behalf. Gatlin indicated that he and Thompson expected to be paid back for the contributions they made in amounts over and above what Davis had contributed. He asserted that the parties had orally agreed that, “if [the Plaintiffs] put X-number of dollars in, as soon as income came in ... we would pay ourselves back because [Davis] was not contributing at the time.”

Relying on this understanding, Gatlin said, he and Thompson made large contributions to the LLC. Gatlin estimated that he and Thompson contributed “over a million dollars apiece more than Doctor Davis ... even though we were one-third each owners of the corporation.” A schedule of contributions to and distributions from the LLC showed that, through December 2002, Gatlin contributed $2,759,617, Thompson contributed $2,645,561, and Davis contributed $1,687,216. Gatlin said that more contributions were made in 2003 and 2004, but these contributions were not included in the schedule.

A spreadsheet was introduced into evidence showing the distributions from the LLC for the period from January 2001 through December 2003. According to the spreadsheet, during that three-year period, Gatlin and his wholly owned businesses (Empire Products or Empire Express) received disbursements of about $229,418, Thompson received $166,845, and Davis received $25,466. Gatlin indicated that the amounts disbursed to him and Thompson were repayments for amounts they had put into the company over and above what Davis had contributed. Gatlin said that he and Thompson trusted that Davis was aware that they were putting money into the LLC for him and that they expected to be paid back, “unless [Davis] thought we were some kin to Santa Claus.”

Gatlin testified that he, Thompson, and Davis were aware of all contributions to and distributions from the LLC. He emphasized that Davis knew about “every single one of’ the distributions made to Gatlin and Thompson, and asserted that each disbursement was discussed and agreed upon by all three LLC members. Overall, Gatlin said, he got back less than 10% of what he had contributed to the business. Gatlin noted that Davis never objected to the manner in which the disbursements were made.

Thompson’s testimony corroborated Gatlin’s testimony. Thompson said that he, Gatlin, and Davis capitalized the arena football business venture by making personal contributions. Thompson said that he personally contributed over $1.5 million to the LLC. The $166,845 that he received in distributions, Thompson claimed, was only about 10% of what he had contributed.

Thompson echoed Gatlin’s testimony that, when the business needed money to meet its day-to-day expenses, all three parties would meet and each would put in one-third of the amount of money needed to pay those expenses. In the last several years of the business, however, Davis stopped contributing, explaining to Gatlin and Thompson that he temporarily could not afford to contribute. After Davis stopped contributing, Thompson said, he and Gatlin agreed to contribute to the LLC in equal amounts, covering Davis’s share. According to Thompson, Davis apologized profusely to Gatlin and Thompson when he could not contribute along with them, stating that “if you guys will cover for me, I’ll pay you back later.” However, Davis did not pay any money to either Thompson or Gatlin. Thompson testified that he and Gatlin paid off the Trustmark Note by each contributing $8,900 to the LLC, and in turn the LLC paid the note. Thompson maintained that Davis was included in all discussions about the LLC finances until the very end.

Davis testified as well. He recalled the meetings with Thompson and Gatlin about LLC business as being quite informal. Davis described the LLC meetings as “more of a social function because we never had minutes, we never had documentation of an expense account, et cetera... On most occasions, Davis said, Gatlin simply informed him that Gatlin and Thompson had contributed money to the LLC in order to meet expenses. Davis did not remember any details about the contributions, not even his own. He conceded that Gatlin called him “more than two” times to ask for contributions to help meet LLC expenses, but Davis sometimes did not have the financial resources to contribute. On those occasions, Gatlin assured Davis that he need not worry because he (Gatlin) and Thompson would cover the shortfall. Davis claimed that Gatlin told him that, when the team was sold, he and Thompson would be reimbursed from the proceeds from the sale of the team for amounts they paid over and above what Davis contributed, with any remaining proceeds of the sale divided equally among all three of them. Davis did not know how much Gat-lin and Thompson contributed over the course of the business, as he had seen no documentation on it. Based on what Gat-lin had told him, however, he knew their contributions were substantial. When asked how much he himself had contributed, Davis responded, “It got so depressing for me, I never kept up with it.” Davis agreed, however, that his contribution totaled less than $1.5 million.

Davis said that, when he was first shown the spreadsheet of the LLC’s distributions that was submitted into evidence, he was “shocked” at what had been paid out to Thompson and Gatlin. Davis claimed that the parties had never had any discussions about those distributions, and that he had no knowledge of them. Davis did not remember the LLC making any distributions to him, but he had not checked his own bank records to see whether he had correlating deposits in his account. Davis stated that he claimed the LLC’s business losses on his income tax return in accordance with the K-l form provided to him by the LLC, even for years in which he had put no money into the business.

Davis was under the impression that he had signed the First Bank Note and the Trustmark Note in his capacity as a shareholder of the corporation, though he acknowledged that neither note contained language indicating that he was signing only as a shareholder. He testified that both notes should have been totally paid off from the proceeds of the sale of the team. Davis admitted, however, that the terms of both notes required the LLC members to personally pay the notes if they were not paid by the LLC.

When the team was sold, Davis said, he did not know how much was remaining on the First Bank Note because he received virtually no financial information from the LLC. Davis had no evidence that the balance claimed by the Plaintiffs was incorrect. Davis said that he was not aware that First Bank had called the note. Davis claimed that Gatlin never called him about this and never asked him to make payments on the First Bank Note. Davis insisted that he did not owe any money to either Gatlin or Thompson. If he owed any money, Davis said, he owed it to the LLC. At the conclusion of the proof, the trial court took the matter under advisement.

On January 17, 2008, the trial court entered an order awarding the Plaintiffs a judgment of $136,640.97, one third of the total balance on both the Trustmark and First Bank notes. In reaching its conclusion, the trial court made the following findings of fact:

3. All three men signed a promissory note with Trustmark National Bank on December 19, 2001, in the amount of $300,000.... Although Defendant Davis believed he was signing as a member of the Limited Liability Company, his signature on the document does not show that he signed in any other capacity than personally. Defendant Davis admitted that he did not read the document before signing. The borrowers are identified at the top of the first page of the document as Ed H. Gatlin, J.T. Davis, M.D., and Jon Thompson. There is no mention of the Memphis Pharaohs L.L.C. All three men were jointly and severally liable to the Bank on this note which came due on May 31, 2002.
4. On September 20, 2002, the three men again borrowed money to fund the football team.... They each signed the $2.5 million promissory note to First Bank of Lexington, Tennessee. The loan was secured by a note from the Oklahoma Arena Football. Again, the men signed in an individual capacity rather than a corporate capacity and they were jointly and severally liable on the loan.
5. For a period of time, all three men continued to financially support this losing venture. Eventually Defendant Davis quit making further contributions. This forced Plaintiff Thompson and Plaintiff Gatlin to fund their own share of the expenses and Defendant Davis’s, also to pay the bills of the LLC as they became due. They fired Kevin Hunter because he was using cocaine, moved the team from Memphis to Portland, Oregon and changed its name. Plaintiff Gatlin began managing the team because he had more time available then. Eventually they sold the team to the Arena Football League for $5.8 million in 2003 or 2004. They used this money to pay off the debts of the LLC. Defendant Davis declined to participate in paying off the debts.
6. On December 19, 2001, Plaintiff Thompson and Plaintiff Gatlin, to reduce the costs of the LLC, bought the $2.5 million note from First National Bank for $392,122.91.... Defendant Davis offered no proof that this figure is incorrect. Defendant Davis benefitted from this transaction as collection costs were avoided and the late fees of $45,000 were waived.
7. The remaining balance due on the Trustmark Note is $17,800.00. Periodically, payments were made by the LLC on this account funded by deposits from Plaintiff Thompson and Plaintiff Gatlin. Defendant Davis made no payments to retire this debt.
8. In their testimony, Plaintiff Thompson and Plaintiff Gatlin referred to their additional funding of the LLC as capital calls. This designation is no more binding on the Court than Defendant Davis’s designation of his signature as being in a corporate capacity. The funds paid into the LLC by Plaintiff Thompson and Plaintiff Gatlin functioned as loans to keep the business afloat until a sale could be worked out. Thus, the argument that Plaintiff Thompson and Plaintiff Gatlin improperly received more money from the LLC than did Defendant Davis is not persuasive. Defendant Davis failed to live up to his bargain to equally financially support the team and he misled Plaintiff Thompson and Plaintiff Gatlin about the suitability of Kevin Hunter to manage the team. But for Plaintiff Thompson’s and Plaintiff Gat-lin’s continual infusion of money into the LLC, Defendant Davis would find himself in worse financial condition than he is presently.
9. Although this case was initially pled on another theory, it was tried as a Suit on two promissory notes. Defendant Davis was personally liable on each for one third. The Court awards Plaintiff Thompson and Plaintiff Gatlin a judgment in the amount of $136,640.97 ($392,122.91 + $17,800/3) plus court costs.

Thus, the trial court held that Davis was liable to the Plaintiffs for one-third of the balance on the Trustmark Note and one-third of the balance on the First Bank Note. The trial court rejected Davis’s claim that his liability on the First Bank Note should be offset by distributions made to the Plaintiffs, finding that the distributions by the LLC constituted the permissible repayment of loans. It also found that the LLC payments on the Trustmark Note were funded by the Plaintiffs, which entitled them to contribution from Davis. In a separate order, the trial court awarded the Plaintiffs $35,000 in attorney’s fees and expenses, pursuant to the terms of the notes. Davis now appeals the trial court’s judgment in favor of the Plaintiffs, including its award of attorney’s fees.

Issues on Appeal and Standard of Review

On appeal, Davis argues that the trial court erred in finding him liable for his pro rata share of the total remaining balances on the First Bank and Trustmark Notes. He further argues that the trial court erred in awarding the Plaintiffs any attorney’s fees incurred prior to the filing of the amended complaint on June 12, 2006.

Because this case was tried by the trial court without a jury, we review the trial court’s findings of fact de novo on the record, presuming those findings to be correct unless the evidence preponderates otherwise. Squibb v. Smith, 948 S.W.2d 752, 754 (Tenn.Ct.App.1997); Tenn. R.App. P. 13(d). To the extent that the trial court’s factual determinations were based on its assessment of witness credibility, we will not reevaluate that assessment absent clear and convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002). We review the trial court’s conclusions of law de novo, with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000). The amount of an award of attorney’s fees is necessarily a matter for the trial court’s discretion, and we will not reverse a trial court’s attorney’s fee award absent an abuse of that discretion. Keith v. Howerton, 165 S.W.3d 248, 250-51 (Tenn.Ct.App.2004). The trial court abuses its discretion when it “either applie[s] an incorrect legal standard or reaehe[s] a clearly unreasonable decision, thereby causing an injustice to the aggrieved party.” Id. (quoting Kline v. Eyrich, 69 S.W.3d 197, 204, 209 (Tenn.2002)).

Analysis

Contribution

Tennessee Code Annotated § 47-3-116(a) authorizes an action for contribution when one party having joint and several liability on a note pays the entire instrument:

(a) Except as otherwise provided in the instrument, two (2) or more persons who have the same liability on an instrument as makers, drawers, acceptors, endorsers who indorse as joint payees, or anomalous endorsers are jointly and severally liable in the capacity in which they sign.
(b) Except as provided in § 47-3-419(e) or by agreement of the affected parties, a party having joint and several liability who pays the instrument is entitled to receive from any party having the same joint and several liability contribution in accordance with applicable law.
(c) Discharge of one party having joint and several liability by a person entitled to enforce the instrument does not affect the right under subsection (b) of a party having the same joint and several liability to receive contribution from the party discharged.

TenmCode Ann. § 47-3-116 (2001) (emphasis added). “The right to contribution is the right of a person who has discharged a common liability or burden to recover of another, who is also liable, the portion he or she ought to pay or bear.” 18 Am. Jur.2d § 1 (2004). The right to contribution is based on equitable principles:

The doctrine of contribution is founded upon principles of equity and natural justice, rather than of contract law. TRW-Title Ins. Co. v. Stewart Title Guar. Co., 832 S.W.2d 344, 346 (Tenn.Ct.App.1991); Esstman v. Boyd, 605 S.W.2d 237, 241 (Tenn.Ct.App.1979). It applies where the parties share a common obligation or liability, but one party has paid more than its proper share of the obligation. Squibb v. Smith, 948 S.W.2d 752, 754 (Tenn.Ct.App.1997); Underwood v. Waterslides of Mid-America, Inc., 823 S.W.2d 171, 186 (Tenn.Ct.App.1991); Winebarger v. Winebarger, 653 S.W.2d 746, 748-49 (Tenn.Ct.App.1983). The right to contribution among contract debtors does not arise until one of them actually pays more than its fair share of the joint obligation. Young v. Kittrell, 833 S.W.2d 505, 508 (Tenn.Ct.App.1992); Esstman v. Boyd, 605 S.W.2d at 241.

First Nat’l Bank of Chicago v. Cumberland Bend Investors, L.P., No. M2000-00001-COA-R3-CV, 2002 WL 31835693, at *4 (Tenn.Ct.App. Dec. 19, 2002). Based on the law of contribution, the trial court held that Davis was liable for his pro rata share of the payments made by the Plaintiffs on both the First Bank and Trustmark Notes.

Davis first argues that the trial court erred in failing to offset his obligation on the First Bank Note by the $345,332 in allegedly improper distributions made to the Plaintiffs as reflected on the spreadsheet admitted into evidence at trial. In support of this contention, Davis claims that the evidence preponderates against the trial court’s finding that the distributions constituted repayment of loans; he asserts that they instead constituted distribution of capital. Consequently, because the distributions of capital were unequal among the members of the LLC, and because the distributions rendered the LLC unable to make the payments on its debt to First Bank, the distributions violated Tennessee Code Annotated §§ 48-236-101, 48-236-105(a), and other statutes related to the operation of LLCs. Therefore, Davis argues, the amount of the total debt owed on the First Bank Note ($392,122) should have been offset by these improper distributions ($345,332), and his liability should have been limited to his pro rata share of the difference ($46,790), or $15,597. With respect to the Trustmark note, Davis claims that he is not liable to the Plaintiffs for contribution, because they did not personally pay off that note. Rather, the undisputed evidence shows that the LLC, not the Plaintiffs, paid that debt.

In response, the Plaintiffs claim that the evidence preponderates in favor of the trial court’s finding that the distributions to them constituted repayment of loans and that, therefore, the statutes upon which Davis relies are inapplicable. Even if the distributions were considered to be distributions of capital, the Plaintiffs contend, Davis is not entitled to a credit for wrongful distributions, because the statutes provide no right to credit against the debt that arose out of their joint and several liability on the bank notes. Furthermore, they argue, even if the distributions were wrongful and Davis were otherwise entitled to a credit, Davis’s defense was raised more than three years after the date of the most recent distribution. See Tenn.Code Ann. § 48-237-101(d) (2002) (stating that members receiving or assenting to improper distributions have no liability for such distribution after three years from the date of the distribution). In light of the three-year limitation on such a claim, they assert, Davis is barred from “attempting to recover through the back door what the law clearly precludes him from recovering through the front door.” The Plaintiffs also claim that the evidence preponderates in favor of the trial court’s conclusion that the two $8,900 payments made by them to the LLC were made to the LLC for the purpose of satisfying the Trustmark Note. Therefore, because these payments were made for this express purpose, the Plaintiffs are entitled to contribution from Davis.

As a threshold issue, we must determine whether the evidence preponderates in favor of the trial court’s finding that the distributions made to the Plaintiffs constituted repayment of loans they made to the LLC. The parties cited no case law illuminating the distinction between a capital contribution and a loan. Black’s Law Dictionary defines “capital contribution” as “[c]ash, property, or services contributed by partners to a partnership,” or “[fjunds made available by a shareholder, usu. without an increase in stock holdings.” Black’s Law Dictionary 201 (7th ed. 1999). In contrast, “loan” is defined as “[a]n act of lending; a grant of something for temporary use,” and “[a] thing lent for the borrower’s temporary use; esp., a sum of money lent at interest....” Id. at 947. In all cases a loan involves a borrower and a lender who expect repayment, with or without consideration or interest. See id. at 947-48.

In the case at bar, by the account of all parties, the LLC was conducted in a highly informal manner. The only evidence regarding the nature of the Plaintiffs’ payments to the LLC and the distributions therefrom is the parties’ testimony. Gatlin testified that he and Thompson contributed to the LLC over a million dollars apiece more than Davis over the course of the business. The schedule of payments shows that, by the end of 2002, they had both contributed over $900,000 more than Davis. This testimony was not disputed by Davis, who professed to have little knowledge of the LLC’s finances because it became “so depressing.” Gatlin asserted that the parties had an oral agreement that the LLC would repay the Plaintiffs for these excess contributions as it obtained sufficient funds; both Gatlin and Thompson said that the amounts distributed to them constituted repayments, and altogether were only about 10% of the total loaned to the LLC by the Plaintiffs. Thompson testified that Davis apologized for failing to contribute and promised to pay back the Plaintiffs for their- excess contributions. It is undisputed that the Plaintiffs’ excess contributions did not lead to an increase in their share of the business, which would have indicated that their contributions to the LLC were intended to be capital contributions rather than loans. On the other hand, in them testimony, Gatlin and Thompson at times referred to their contributions as “capital contributions” or “capital calls.” Thompson testified that the business was “capitalized” with contributions from the parties. In addition, there is no loan documentation, nor any evidence that the Plaintiffs charged interest to the LLC for any loans. Davis’s testimony again does not enlighten; he testified only that Gatlin told him that the excess contributions by Gatlin and Thompson would be repaid from the proceeds of the eventual sale of the team.

Overall, considering the record as a whole, we cannot conclude that the evidence preponderates against the trial court’s conclusion that the distributions made to the Plaintiffs by the LLC constituted repayment of loans made to the LLC by the Plaintiffs. It is undisputed that all of the parties in this case were aware that the Plaintiffs made excess contributions, that they were effectively covering for Davis, and that all the parties expected that the Plaintiffs would be repaid. Thus, this finding by the trial court is affirmed.

We also find that the evidence preponderates in favor of the trial court’s conclusion that the Plaintiffs personally discharged the debt on the Trustmark note. We recognize that the actual check written to Trustmark came from the LLC. However, the undisputed evidence shows that the Plaintiffs each wrote checks for $8,900, approximately half of the amount due, around the time of the final payment, and that this money was intended for, and was actually used for funding the Trustmark Note payoff. This finding, therefore, is also affirmed.

In light of these factual findings, we agree with the trial court that the doctrine of contribution must apply in this situation, where the Plaintiffs paid more that then-share of the parties’ joint obligations. This holding allows for recovery by the Plaintiffs against Davis, who benefited from the Plaintiffs’ payments. See First Nat’l Bank of Chicago, 2002 WL 31885698, at *4. Therefore, Davis owes the Plaintiffs his pro rata share of the remaining debts on both notes that were satisfied by the Plaintiffs, and this holding by the trial court is likewise affirmed.

Attorney’s Fees

Finally, Davis argues that the trial court erred in awarding the Plaintiffs $35,000 in attorney’s fees. He points out that any liability he has for attorney’s fees arises from the language in the two notes. However, the first two and a half years of this litigation did not relate to recovery on the notes. Rather, the Plaintiffs’ initial and first amended complaints, based on theories of partnership and fraud, were resolved in his favor. Only when the second amended complaint was filed on June 12, 2006, was recovery sought on the First Bank Note and Trustmark Note. Therefore, Davis contends, the fees generated by Plaintiffs’ attorney prior to that date, including the depositions of the individual parties, were in pursuit of theories upon which the Plaintiffs had no right of recovery of attorney’s fees, even if they had prevailed on those theories. While Davis acknowledges that he may bear some liability for fees and costs incurred after June 12, 2006, he maintains that he has no liability for fees incurred before that date. In response, the Plaintiffs assert that much of the pre-June 2006 discovery was on the nature of the business, the parties’ relationships, and the liabilities of the LLC, including the notes at issue, and thus was useful in the Plaintiffs’ ultimate recovery on the notes. They argue that, under the circumstances, the trial court acted well within its discretion in its attorney’s fee award.

The trial court held a hearing on May 25, 2007, to consider the parties’ arguments regarding attorney’s fees. In the hearing, the Plaintiffs submitted the affidavit of their trial counsel, who charged a total of $46,008.70 in legal fees and expenses for his services in the litigation. The trial court considered the parties’ arguments and the affidavit and determined that a $35,000 fee, about 76% of the total requested, was appropriate. The trial court explained, “The argument that much of the work was done on the first two versions of the complaint has merit but so does the argument that ultimately Plaintiffs prevailed with a judgment of $136,640.97.” It is undisputed that, under the terms of the notes at issue, the Plaintiffs are entitled to recover their attorney’s fees. As noted above, the amount of the fee to be awarded is within the trial court’s sound discretion. Keith, 165 S.W.3d at 250-51. From our review of the entire appellate record, we conclude that the trial court did not abuse its discretion in awarding the Plaintiffs $35,000 in attorney’s fees.

Conclusion

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant J.T. Davis and his surety, for which execution may issue, if necessary.

      . In the original complaint, Gatlin’s company, Empire Express, Inc., was also named as a plaintiff, and Davis's wife, Barbara Davis, was named as a defendant. On November 22, 2006, counsel for the Plaintiffs confirmed in open court that Empire Express no longer asserted any claim for relief, and that the remaining Plaintiffs no longer asserted any claims against Mrs. Davis. In its final order, the trial court held that all of Empire Express's claims were dismissed, and that all claims against Mrs. Davis were also dismissed.

      . In recounting the evidence at trial, we will not differentiate between trial testimony and deposition testimony.

      . However, counsel for Davis conceded during trial that Davis owed the Plaintiffs his pro rata share of the difference between the amount due on the First Bank Note ($392,-122) and the amount of excess distributions to Gatlin and Thompson ($345,332); in other words, one-third of $46,790, or $15,596.67.

      . Counsel for the parties was informed of this attorney’s fee award in a letter from the trial judge dated January 7, 2008, which was incorporated in the trial court’s January 17, 2008 order by reference.

        . This statute provides that, "[ujnless otherwise provided in or through the articles or operating agreement, distributions of cash or other assets of an LLC, including distributions on termination of the LLC except as provided in § 48-245-1101, must be allocated equally among the members.” Tenn.Code Ann. § 48-236-101 (2002).

      . This statute provides that “[n]o distribution may be made by an LLC if, after giving effect to the distribution ... [t]he LLC would not be able to pay its debts as they became due in the normal course of business,” or “the LLC's total assets would be less than the sum of its total liabilities....” Tenn.Code Ann. §48-236-105(a) (2002).

      . On appeal, Davis does not dispute that he may be liable to the Plaintiffs for some contribution on the First Bank Note, but argues only that the allegedly improper distributions entitle him to an offset.

      . Black's Law Dictionary defines forty different types of loans. Black's Law Dictionary 947-48 (7th ed. 1999).


author: DAVID R. FARMER, J.,

text:
    Sandra Kaye Kemp PARISH, et al. v. Jerry Donald KEMP, et ux.
    Court of Appeals of Tennessee, at Jackson.
    Sept. 18, 2008 Session.
    Dec. 11, 2008.
    Application for Permission to Appeal Denied by Supreme Court June 15, 2009.

      Kenneth Ray Jones, Jr., Nashville, Tennessee, for the appellants, Sandra Kaye Kemp Parish, Marilyn Coleman Aten, Angela Aten, Gary Harlan Coleman, Sr., Gary H. Coleman, Jr., Vicky Coleman Bird, Jimmie Austin Kemp, Thomas A. Kemp, Michael Kemp, David Argo and Nancy Petty.

      Robert T. Keeton, Jr. and Laura A. Keeton, Huntingdon, Tennessee, for the appellees, Jerry Donald Kemp and Annie Jo Kemp.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

This case comes to us as an intra-family dispute over the validity of a nonagenarian’s inter vivos gifts and will devises. After this Court held that there was a presumption that Defendants had unduly influenced the decedent, the trial court found upon remand that the Defendants had overcome this presumption and, therefore, upheld the will conveyances and inter vivos gifts to the Defendants. Because the evidence does not preponderate against the trial court’s finding that Defendants rebutted this presumption of undue influence, we affirm the trial court’s determinations.

Procedural History

Plaintiffs/Appellants (“Plaintiffs”) filed their Complaint with the trial court on March 2, 2001, contesting Mamie Fes-mire’s (“Mrs. Fesmire”) will and various inter vivos gifts that Mrs. Fesmire made to Defendants/Appellees Jerry Donald Kemp and Annie Jo Kemp (together “the Kemps”). After a four day trial, the jury returned a verdict in favor of the Kemps. Plaintiffs appealed the jury verdict to this Court; because of an erroneous instruction submitted to the jury, we remanded this case for a new trial and instructed the trial court that the Kemps and Mrs. Fesmire’s relationship created a rebuttable presumption of undue influence. Parish v. Kemp, 179 S.W.3d 524, 533-535 (Tenn.Ct.App.2005). Upon remand, Plaintiffs waived their right to a jury trial. The parties stipulated that proof presented at a new trial would be the same as that presented at the previous trial and submitted that the trial court decide the issues based upon the record of the previous trial, briefs from both parties, and oral argument. The trial court then entered judgment in favor of the Kemps on September 17, 2007, and the Plaintiffs filed a timely notice of appeal to this Court on September 26, 2007.

In its final judgment, the trial court made the following findings:

1) The deceased was at all times in question in control of her mental faculties and very headstrong in both her opinions and her actions.
2) That several witnesses credibly testified that Mrs. Fesmire was alert and there was no credible proof that Mrs. Fesmire was not of sound mind.
3) Mrs. Fesmire met with respected local attorneys who gave her advice independent of third parties, and it appeared she acted upon her own desires and wishes with the advice and consent of said counsel.
4) Mrs. Fesmire acted independently in the preparation of her will in 1999; that it evidenced her intent and not that of third parties, and that she was well aware of the consequences of her actions.
5) The joint banking account transactions were done by Mrs. Fesmire’s own intent without undue influence and with awareness of the consequences of her actions.
6) The court did not find any action on the part of Mrs. Fesmire that was contrary to her interest or showed undue influence.

Standard of Review

Upon remand, the trial court determined that the Kemps rebutted the presumption of undue influence and entered judgment for the Defendants. We review the trial court’s determination de novo and presume the correctness of the trial court’s findings unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). We will not reverse the trial court’s factual findings unless they are contrary to the preponderance of the evidence. Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000). We review mixed questions of law and fact de novo, with no presumption of correctness. State v. Thacker, 164 S.W.3d 208, 248 (Tenn.2005).

In addition, this Court will not reevaluate the trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary. In re Estate of Burg, M2006-00065-COA-R3-CV, 2007 WL 283137, at *11 (Tenn.Ct.App. Jan. 31, 2007) (no perm. app. filed). Because the parties submitted this case to the trial court based largely upon the record from a previous jury trial, the proof presented to the trial court in this case is documentary evidence. Where the trial court is assessing documentary evidence, this Court will generally draw its own conclusions regarding credibility without deferring to the trial court’s judgment. Bryant v. Baptist Health Sys. Home Care of E. Tennessee, 213 S.W.3d 743, 750 (Tenn.2006). In the unique circumstances here, however, the same judge who issued the opinion upon remand conducted the jury trial which is the subject of the appellate record; this Court reversed this case on its first appeal only because of an erroneous jury instruction, and the parties stipulated that the proof on remand was precisely what the trial judge heard during the first trial. Although the trial court reviewed transcripts and depositions upon remand, it heard the witnesses testify during the parties’ first trial and has first-hand impressions regarding weight and credibility. Because the trial judge was, therefore, in the best position to evaluate witness credibility, we will not reevaluate his credibility assessments absent clear and convincing evidence. In re Estate of Burg, 2007 WL 283137, at *11.

Facts

Mrs. Fesmire and her husband, Howard Fesmire did not have any children, but each had several brothers and sisters and many nieces and nephews. Both Plaintiffs and Defendants are the Fesmires’ nieces and nephews. The Fesmires lived together in Atwood tending a pharmacy until May 1996, when Mr. Fesmire passed away. Three weeks later, Mrs. Fesmire fell in her carport and injured her hip. After her injury, Mrs. Fesmire could not stay alone and she moved in with her niece, Marilyn Aten (“Mrs. Aten”), and Mrs. Aten’s husband. At that time, Mrs. Fesmire was eighty-nine years old and first learned that she had approximately $900,000.00 in savings accounts. The parties agree that Mrs. Fesmire and Mrs. Aten did not get along particularly well, and within a few weeks Mrs. Fesmire went to live with the Kemps. The parties dispute the underlying cause of Mrs. Fesmire’s departure; Mrs. Aten claims that she wanted Mrs. Fesmire to leave because Mrs. Fesmire refused to give money for household expenses and Mrs. Fesmire was hassling Aunt Nell, Mrs. Aten’s mother and Mrs. Fesmire’s younger sister, who also lived with the Atens. The Kemps claim that Mrs. Fesmire wanted to leave because she felt that Mrs. Aten was overly involved in her finances. Despite any uncertainty regarding the cause of Mrs. Fesmire’s departure, the evidence clearly establishes that Mrs. Fesmire went to live with the Kemps in the fall of 1996 until her death in August 2000.

While Mrs. Fesmire lived with the Atens, she assigned a power of attorney jointly to Mrs. Aten and Mrs. Kemp. Almost immediately after she moved in with the Kemps, Mrs. Fesmire visited attorney James Webb (“Mr. Webb”) to revoke Mrs. Aten’s power of attorney, name Annie Jo Kemp and Jerry Donald Kemp as her new attorneys-in-fact, and change her will. Mr. Webb originally drafted reciprocal wills for Mr. and Mrs. Fesmire in 1988 that conveyed their property first to each other and then to their combined families. Mr. Webb testified that the only changes that Mrs. Fesmire made to her 1988 will in August 1996 was to specifically devise her house in Atwood, Tennessee to the Kemps and to leave Elta Fesmire, Mrs. Fesmire’s mentally unstable sister-in-law, her inheritance in trust, with the Kemps as trustees.

When Mrs. Fesmire met with Mr. Webb in August 1996, the Kemps were present at the beginning of the meeting. Mr. Webb testified that he met with Mrs. Fes-mire alone, however, after she expressed an interest in leaving money to the Kemps. Jerry Donald Kemp admits that he joked about Mrs. Fesmire giving them $200,000.00 at that meeting. Mr. Webb explained that at that time Mrs. Fesmire privately told him “Yeah, you know, they’re good to me, and they’re going to take care of me, and they’ll keep me from having to go to a nursing home, and they’re going to have to add onto their house” but then indicated that she just was not sure. Mr. Webb, therefore, explained to Mrs. Fesmire and the Kemps that he was not going to draw up documents conveying $200,000.00 to the Kemps. He went ahead that same day, however, and prepared the power of attorney and the codicil leaving Mrs. Fesmire’s house to the Kemps.

Bank records indicate that a few weeks later Mrs. Fesmire renewed several one hundred-thousand dollar Certificates of Deposit (“CDs”) and made them payable to the Kemps upon her death. It was not until the fall of 1998 that Mrs. Fesmire renewed those CDs with Mr. and Mrs. Kemp as joint account holders. Although the Kemps would often use their power of attorney to renew Mrs. Fesmire’s CDs, bank tellers at all but one of the banks where Mrs. Fesmire kept her CDs testified that Mrs. Fesmire was present and personally authorized adding the Kemps as joint account holders.

Around the time Mrs. Fesmire moved in with the Kemps, she began writing checks payable to the Kemps. Mrs. Kemp testified that these checks were general reimbursements for some of Mrs. Fesmire’s expenses; for example, the Kemps purchased Mrs. Fesmire two complete wardrobes during the time that she lived with them. Beginning in February 1997, Mrs. Fesmire started paying some of the Kemps’ bills in lieu of reimbursing them directly. Mrs. Kemp testified that she suggested that Mrs. Fesmire pay the bills rather than making checks out to her directly because it would be easier for them to keep up with what expenses Mrs. Fes-mire was paying. Mrs. Kemp explained that Mrs. Fesmire was the first one to go through the mail and that Mrs. Fesmire decided which expenses and how much toward each bill she wanted to pay.

Mrs. Fesmire met with attorney D.D. Maddox (“Mr. Maddox”) in November 1996 to discuss changing her will again, and they met again in January 1997 to sign the drafted will. The Kemps brought Mrs. Fesmire to Mr. Maddox’s office but were not present when Mr. Maddox met with Mrs. Fesmire or when Mrs. Fesmire signed the will. At their meeting, Mr. Maddox discussed Mrs. Fesmire’s assets, suggested gifting prior to death and the tax ramifications of such gifts, and listened to last minute changes that Mrs. Fesmire wanted to make to her will. Mr. Maddox determined that Mrs. Fesmire understood that the Kemps were going to receive the money in her CDs outside of the will because their names were on the account.

When they met, Mr. Maddox also reviewed Mrs. Fesmire’s prior wills and made sure that Mrs. Fesmire knew who her family members were. Mrs. Fesmire’s 1988 will made a few minor specific bequests but generally left half of her wealth to her relations and half to Mr. Fesmire’s family. Mr. Maddox’s daughter, who was present for Mr. Maddox and Mrs. Fes-mire’s meeting, testified that Mrs. Fes-mire’s 1997 will did not change the beneficiaries of her estate; it only changed the amounts that each beneficiary would receive. Unlike Mrs. Fesmire’s 1988 will, the 1997 will lists specific monetary bequests to each of the family members that she wanted to inherit from her. Mr. Maddox’s daughter testified that Mr. Maddox particularly scrutinized Mrs. Fesmire’s intentions because of her elderly age.

In 1999, Mrs. Fesmire met with attorney Walton West (“Mr. West”) and changed her will one more time before her death. Although the Kemps brought Mrs. Fes-mire to Mr. West’s office, Mr. West testified that he discussed the changes that Mrs. Fesmire wanted to make to her will in-depth with her when the Kemps were out of the room. Mr. West also explained to Mrs. Fesmire in great detail about the effect of the Kemps’ names being on the CDs. Mr. West further testified that Mrs. Fesmire already knew and understood what he was explaining about the CDs, and when they discovered that Mrs. Fes-mire had insufficient funds to cover the joint account conveyances and the specific monetary bequests in the wills, Mrs. Fes-mire opted to take $100,000.00 bequests to each of the Kemps out of the will so that there would be sufficient funds in the estate to cover all of the bequests to other family members.

Mrs. Fesmire was in her early nineties at the time she died, and she used a walker the entire time that she lived with the Kemps. The evidence establishes that Mrs. Fesmire was a frugal woman who relied on the Kemps for physical support and transportation. By all accounts, however, Mrs. Fesmire maintained a strong relationship with the Kemps both before and during the time that they cared for her, and she remained a strong-willed woman until her death on August 17, 2000.

Analysis

On plaintiffs’ previous appeal, this Court held that there was a confidential relationship between the Kemps and Mrs. Fesmire. Parish v. Kemp, 179 S.W.3d 524, 531 (Tenn.Ct.App.2005). This Court articulated that the presence of a confidential relationship shifted the burden of proof to the Kemps to demonstrate that Mrs. Fesmire’s financial transactions were fair by clear and convincing evidence. Id. This Court quoted that it was “mindful that ‘the presumption of undue influence extends to all dealings between persons in fiduciary and confidential relations, and embraces gifts, contracts, sales, releases, mortgages and other transactions by which the dominant party obtains a benefit from the other party.’ ” Id. (quoting Gordon v. Thornton, 584 S.W.2d 655, 658 (Tenn.Ct.App.1979)). At trial, the burden was, therefore, on the Kemps to demonstrate the fairness of both the testate conveyances and the inter vivos gifts to them.

Plaintiffs’ main argument is twofold. First Plaintiffs assert that the Kemps can only prove the fairness of the transaction with evidence of independent advice. Second, Plaintiffs argue that the Kemps offered insufficient proof to establish the fairness of the transaction. A presumption of undue influence can generally be overcome by clear and convincing evidence that the transaction was fail- and not procured through undue influence. Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn.1995). The Tennessee Supreme Court has explained, however, that in some circumstances where it would otherwise be difficult to show the fairness of the transaction a plaintiff can only rebut the presumption with evidence of independent advice. Richmond v. Christian, 555 S.W.2d 105, 108-09 (Tenn.1977). Our first inquiry, therefore, is whether the only way for the Kemps to rebut the presumption of undue influence was to prove that Mrs. Fesmire had received independent advice.

In Richmond v. Christian, the Tennessee Supreme Court articulated that independent advice is necessary to overcome the presumption of undue influence where circumstances are such that it would be difficult to show the fairness of the transaction without proof of independent advice. Id. at 108. Such circumstances particularly arise where a feeble donor impoverishes herself by the gift or the conveyance seems unnatural given the circumstances. Id. This Court, in Fell v. Ram,bo, held that evidence of independent advice was not required to rebut the presumption of undue influence so long as the donor did not impoverish herself. Fell v. Rambo, 36 S.W.3d 837 (Tenn.Ct.App.2001). Although Mrs. Fesmire gave the Kemps joint ownership of hundreds of thousands of dollars in CDs, Mrs. Fesmire was not impoverished by the transaction; she still had other accounts and assets that remained solely in her name, and unlike the donors in Richmond and Fell who completely gave away their property, Mrs. Fesmire still had access and ownership rights over the money that remained in the joint CD accounts. We find, therefore, that the circumstances in this case do not require the Kemps to overcome the presumption of undue influence solely with proof that there was independent advice.

Our second inquiry is whether the trial court properly found that there was clear and convincing evidence sufficient to overcome the presumption of undue influence as to Mrs. Fesmire’s 1997 will, her 1999 will, and her inter vivos transfers. A party trying to rebut the presumption must establish by clear and convincing evidence that the transaction was fair and not procured through undue influence. Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn.1995).

Courts should exercise the utmost care and caution before concluding that the solemn act of a decedent, such as execution of a deed or will, should be invalidated; but it is equally important that they be vigilant to prevent imposition upon those who are weak, frail, and vulnerable to the influence and importu-nities of others who exercise a dominant position over them.

Richmond v. Christian, 555 S.W.2d 105, 109 (Tenn.1977). Generally the strength of rebutting the presumption varies with the circumstances of each case and the strength of the presumption of undue influence. Id,, at 108. This Court recognizes that suspicious circumstances of undue influence often include: (1) the existence of a confidential relationship between the testator and the beneficiary; (2) the testator’s physical or mental deterioration; (3) the beneficiary’s active involvement in procuring the will, (4) secrecy concerning the will’s existence; (5) the testator’s advanced age; (6) the lack of independent advice in preparing the will; (7) the testator’s illiteracy or blindness; (8) the unjust or unnatural nature of the will’s terms; (9) the testator being in an emotionally distraught state; (10) discrepancies between the will and the testator’s expressed intentions; and (11) fraud or duress directed toward the testator. Kelley v. Johns, 96 S.W.3d 189, 196 (Tenn.Ct.App.2002). Where, however, an automatic presumption of undue influence exists due to a confidential relationship, this Court has often considered a lack of suspicious circumstances as evidence to rebut an automatic legal presumption of undue influence. See, e.g., Simmons v. Foster, 622 S.W.2d 888, 841 (Tenn.Ct.App.1981) (the evidence that decedent was capable and strong-willed overcame presumption of undue influence). This Court has recognized that courts should refrain from prescribing the requisite type or number of suspicious circumstances that may invalidate a will; the issue should be decided, rather, on “ ‘the application of sound principles and good sense to the facts of each case.’” Kelley, 96 S.W.3d at 195 (quoting Childress v. Currie, 74 S.W.3d 324, 329 (Tenn.2002)).

The presumption of undue influence, in this case, arises from Mr. and Mrs. Kemp’s position as Mrs. Fesmire’s attorneys-in-fact. After reviewing the voluminous record, we find, however, that the Kemps have successfully rebutted that presumption of undue influence. Despite the testator’s advanced age, the Kemps have presented strong evidence that Mrs. Fesmire had a headstrong personality, she received independent advice explaining the effects of her conveyances, and the will terms and gifts seem just and natural. We find, therefore, considering the circumstances as a whole, that the trial court properly found that the Kemps rebutted the presumption of undue influence.

A. Testator’s Mental State

The trial court found as a matter of fact that Mrs. Fesmire was “headstrong in both her opinions and her actions,” and the record on appeal strongly supports this finding. Witnesses that knew the Fes-mires explained that Mr. Fesmire had spoiled Mrs. Fesmire during their marriage, that Mrs. Fesmire was temperamental when she did not get what she wanted, and that you could not make her do anything unless it was her own idea. Mrs. Fesmire’s pastor in Atwood, Stephen Mark Earheart (“Mr. Earheart”), testified that he saw Mrs. Fesmire often after she moved to Nashville because Mr. Kemp would bring Mrs. Fesmire back to visit a couple of times a month; Mr. Earheart stated that Mrs. Fesmire had very strong opinions, that he thought Mrs. Fesmire would have felt comfortable telling him almost anything, and that Mrs. Fesmire never gave him any impression that the Kemps were forcing her to do something that she did not want to do. Mrs. Kaye Greenway (“Mrs. Greenway”), who knew Mrs. Fesmire for over 40 years testified that Mrs. Fesmire was “strong-willed” and that it was hard to change her mind. A friend and fellow church-goer, Wanda Murray (“Mrs. Murray”), testified that she had also known Mrs. Fesmire for over 40 years, that Mrs. Fesmire did not let anyone change her mind, and that she did not notice any change in Mrs. Fesmire’s personality after she moved to Nashville. Another of Mrs. Fesmire’s friends, Mary Churchwell (“Mrs. Churchwell”), testified that Mrs. Fesmire “was a nice person as long as she got her way. She was going to have her way one way or another.”

Even the Plaintiffs admitted that Mrs. Fesmire had a very strong-willed personality. Mrs. Aten testified that Mrs. Fesmire was stubborn. Gary Coleman, Mrs. Aten’s brother and one of the plaintiffs, testified that he agreed with Mrs. Kemp’s statement that “you can’t make [Mrs. Fesmire] do anything, but you can talk her into it” because Mrs. Fesmire was so strong-willed that you could not tell her what to do.

B. Natural Gift

The Tennessee Supreme Court has stated that

it is not influence that invalidates a conveyance or will but undue influence; that “(a) person has a right by fair argument or persuasion to induce another to make a will (sign a deed), and even to make it in his own favor,” provided the influence is “exerted in a fair and reasonable manner, and without fraud or deception.”

Kelly v. Allen, 558 S.W.2d 845, 847 (Tenn.1977) (quoting Phillips’ Pritchard on Wills, §§ 130-31). The trial court found that “Mrs. Fesmire’s actions did not fall outside what might be expected of any other person in her circumstances ... [and] the disposition of her assets were reasonable for a person of her status and situation.”

The testimony established that Mrs. Fesmire had been exceptionally fond of Mr. Kemp from a very early age. Mrs. Greenway, Mrs. Murray, and Mrs. Churchwell, who have each known Mrs. Fesmire for over 40 years, all testified that Mrs. Fesmire had spoken often about Mr. Kemp throughout the years but had never mentioned any other nephews or nieces. Billy Kemp, Mr. Kemp’s and the plaintiff Sandra Parish’s brother, testified that Jerry had often helped their mother and Mrs. Fesmire visit. After she moved to Nashville, Mrs. Fesmire seemed very happy and told Mrs. Greenway that she “couldn’t have had children of my own that have been any nicer to me and any better to me than [the Kemps.]” Stephen Mark Earh-eart, Mrs. Fesmire’s pastor in Atwood, testified that Mrs. Fesmire often shared strong opinions but never said anything bad about the Kemps.

On the other hand, the Plaintiffs who testified admitted that they did not have a very close relationship with Mrs. Fesmire at the time of her death. Jimmie Kemp testified that he only sent Mrs. Fesmire flowers 2-3 times and called the Kemp residence while Mrs. Fesmire lived there maybe 9 times over the course of four years. Nancy Petty, Jimmie Kemp’s sister, testified that she did not see Mrs. Fesmire much after she was grown, and only talked to her on the phone until Mrs. Fesmire could not hear her. Both Mr. and Mrs. Aten testified that they were frustrated with Mrs. Fesmire when they lived with her and, therefore, they had limited contact with her after she moved out.

Like the trial court, we find that the terms of Mrs. Fesmire’s will seem natural. Although the Kemps drove Mrs. Fesmire to both Mr. Maddox and Mr. West’s offices, they did so upon Mrs. Fesmire’s request that she wanted to change her will. The evidence establishes that the Kemps loved and cared for Mrs. Fesmire during the last four years of her life and Mrs. Fesmire cared for and appreciated the Kemps. The evidence also establishes that Mrs. Fesmire valued family but expressed concern even before her husband died about family members that she never saw inheriting all of her money. Mrs. Churchwell testified that she advised Mrs. Fesmire that she could change her will if she did not want all of her family members to inherit from her. The bequests in Mrs. Fesmire’s will reflect this intent; Mrs. Fesmire gave the majority of her money to her nephew that she was most fond of and who had cared the most for her during her lifetime, but, nevertheless, gave smaller bequests to other relatives that she oeca-sionally saw. We, therefore, consider Mrs. Fesmire’s will conveyances together with the inter vivos gifts to be natural gifts.

C. Independent Advice

The trial court found that Mrs. Fesmire met with respected local attorneys and received independent advice from them. Plaintiffs argue, however, that the Kemps failed to prove that Mrs. Fesmire received independent advice regarding the “advisability” of Mrs. Fesmire’s testamentary dispositions and inter vivos gifts. We disagree and find that there was some evidence of independent advice.

Plaintiffs rely on the Supreme Court’s language in Richmond v. Christian that an independent party must give advice “respecting the consequences and advisability of the gift.” Richmond v. Christian, 555 S.W.2d 105, 107 (Tenn.1977). In Richmond, the Tennessee Supreme Court required decedent’s son to overcome a presumption of undue influence solely with evidence of independent advice. The court found that the son failed to met this burden where the son was seated across from his mother during her conversation with an attorney, where the son, not the mother, was the attorney’s client, and where the attorney admitted that his discussion with the mother was cursory and he only explained that the deed transferred the entire tract to her son and determined that was the mother’s intent. Id. at 109.

Plaintiff contends that Mrs. Fesmire did not receive independent advice in this case because neither Mr. West nor Mr. Maddox advised Mrs. Fesmire on what bequests she should make. We do not, as plaintiff contends, interpret that Richmond requires attorneys be in the business of telling testators what monetary amounts they should leave to their loved ones in order for their advice to be considered independent. In its analysis, the Court in Richmond applied the following definition of independent advice;

[p]roper independent advice in this connection means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect but who was furthermore so disassociated from the interests of the donee as to be in a position to advise the donor impartially and confidently as to the consequences to himself of his proposed benefactions.

Id. at 109 (quoting Turner v. Leathers, 191 Tenn. 292, 232 S.W.2d 269, 271 (1950)). Applying this interpretation, we find that the trial court properly held that Mrs. Fesmire received independent advice for the joint CD accounts and testamentary conveyances.

Mrs. Fesmire received independent advice with her 1999 will. Her attorney, Mr. West testified that he met with Mrs. Fes-mire privately. Mr. West discussed the changes from Mrs. Fesmire’s 1997 will in detail. Although Mr. West testified that he had previously drafted each of the Kemp’s wills, Mr. Kemp testified that he suggested that Mr. West draft the 1999 will because Mrs. Fesmire’s previous attorney, Mr. Maddox, had retired and Mr. Kemp was familiar with Mr. West because he had worked in court as a trooper when Mr. West had been a general sessions judge. Mr. Kemp also testified, however, that he had not seen Mr. West in fifteen to twenty years before Mr. West drafted the wills. Mr. West also testified that he and his wife went to the Kemp’s home so that Mrs. Fesmire could sign the will, and Mr. West went over the details of the will with Mrs. Fesmire in-depth once more. In addition, neither of the Kemps was present at the time that Mr. West explained the contents of the will to Mrs. Fesmire or when Mrs. Fesmire signed the will.

Mrs. Fesmire also received independent advice regarding the CDs that she conveyed to the Kemps. The evidence indicates that Mrs. Fesmire received independent advice from two separate sources. Bank tellers testified that they explained to Mrs. Fesmire that adding the Kemps as joint account holders gave them unfettered access to those accounts and Mrs. Fesmire understood what she was doing when she added the Kemps as joint owners. Additionally, the evidence indicates that Mrs. Fesmire spoke with her attorney, Mr. Maddox in November 1996 about gifting prior to death and the tax consequences of that type of estate planning. Although Mrs. Fesmire set up most of the CDs in the fall of 1996 “payable upon death” to the Kemps, Mrs. Fesmire did not make the Kemps joint account holders until the fall of 1998, after she had spoken to Mr. Maddox. In light of these circumstances, we agree with the trial court that there is evidence of independent advice.

Conclusion

Considering the totality of the circumstances in the record as a whole, we find that the evidence does not preponderate against the trial court’s finding that the Kemps overcame the presumption of undue influence. The Kemps presented evidence of Mrs. Fesmire’s strong-willed personality, the natural nature of Mrs. Fesmire’s gift, and Mrs. Fesmire’s receipt of independent advice. Together, the trial court found that all of the transactions between the Kemps and Mrs. Fesmire were fair and not procured through undue influence. We do not disagree. The judgment of the trial court is affirmed. Costs of this appeal are, therefore, taxed to the Appellants, Sandra Kaye Kemp Parish, Marilyn Coleman Aten, Angela Aten, Gary Harlan Coleman, Sr., Gary H. Coleman, Jr., Vicky Coleman Bird, Jimmie Austin Kemp, Thomas A. Kemp, Michael Kemp, David Argo, and Nancy Petty, and their surety, for which execution may issue if necessary.

      . There are no other allegations in the record that Mrs. Fesmire had any hearing problems.

      . After Mr. West drafted Mrs. Fesmire’s 1999 will, the Kemps, Mr. Maddox, and Mrs. Fes-mire realized that the draft actually conveyed more money than Mrs. Fesmire had left in accounts that remained solely in her name. In order to fulfill the specific bequests that she had made to each of her other family members, Mrs. Fesmire actually deleted $100,000.00 bequests that she had made to each of the Kemps in her 1997 will and the 1999 draft so that the other beneficiaries would receive the amounts she wanted given in her 1999 will.
      The specific 1999 will bequests include: $15,000.00 to Buman Argo; $7,500.00 to John Williams, Jr.; $7,500.00 to Dick Williams; $15,000.00 to Billy Kemp; $15,000.00 to Sandra Parish; $20,000.00 to Jimmy Kemp (referred to at trial as Jimmie Kemp); $20,000.00 to Nancy Kemp Petty; $5,000 to Elta Fesmire; $15,000.00 to David McCollum; $7,500.00 to Jeff McCollum; $7,500.00 to Linda McCollum; $3,500.00 to Phillip McCollum; $15,000.00 to Gary Coleman; $15,000.00 to Marilyn Aten; $15,000.00 to John Fesmire; $15,000 to Sharon Fesmire Cotton; $3,500.00 to Gloria McCollum; $3,500.00 to Danny McCollum; $3,000.00 to Atwood First Methodist Church; and $3,000.00 to Pisgah Cemetery of Atwood.