1995) ;Crainv. Brown, 823 S.W.2d 187, 194 (Tenn.Ct.App. 1991). A person who is "authorized to act on behalf of another by virtue of an unrestricted power of attorney has a confidential relationship with the person who executed the power of attorney."
"Under Tennessee law, as in most jurisdictions, a presumption of undue influence arises where the dominant party in a confidential relationship receives a benefit from the other party." In re Estate of Hamilton, 67 S.W.3d 786, 793 (Tenn. Ct. App. 2001) (citing Matlock, ; Crain v. Brown, 823 S.W.2d 187, 194 (Tenn. Ct. App. 1991)). "[A] confidential relationship arises as a matter of law when an unrestricted power of attorney is granted to the dominant party."
In re Estate of Hamilton, 67 S.W.3d 786, 793 (Tenn. Ct. App. 2001) (citing Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995); Crain v. Brown, 823 S.W.2d 187, 194 (Tenn. Ct. App. 1991)). "[A] confidential relationship arises as a matter of law when an unrestricted power of attorney is granted to the dominant party."
In re Estate of Hamilton, 67 S.W.3d 786, 793 (Tenn.Ct.App. 2001) (citing Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995); Crain v. Brown, 823 S.W.2d 187, 194 (Tenn.Ct.App. 1991)). "[A] confidential relationship arises as a matter of law when an unrestricted power of attorney is granted to the dominant party."
This court has held that proof that a power of attorney was executed after the will and was not utilized for a number of years after execution of the will was sufficient for the jury to conclude no per se confidential relationship existed and no undue influence was exercised. Crain v. Brown, 823 S.W.2d 187, 194 (Tenn.Ct.App. 1991), overruled on other grounds by Matlock, 902 S.W.2d at 386. Similarly, the Tennessee Supreme Court has recently clarified Matlock by holding that an unexercised power of attorney does not in and of itself create a confidential relationship.
Access to independent legal advice is one method of overcoming the presumption of undue influence. Crain v. Brown, Tenn. App. 1991, 823 S.W.2d 187. This Court does not hold that the foregoing evidence is clear and convincing evidence rebutting the presumption of undue influence. However, this Court does hold that the foregoing evidence was sufficient grounds for a jury to find clear and convincing evidence rebutting the presumption of undue evidence.
We observe that a defendant's requested instructions on mitigating circumstances often constitute the theory of his case in the penalty phase; however, as we have stated, an instruction that implies to the jury that the trial court has found or believes that certain facts have been established is improper under our state constitution. Tenn. Const. art. VI, § 9; Crain v. Brown, 823 S.W.2d 187, 194 (Tenn. App. 1991); see also State v. Allen, 692 S.W.2d 651, 654 (Tenn. Crim. App. 1985). Defendant's special instruction request 1: "A mitigating circumstance is any circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."
The court observed that the rule was founded in public policy and based on the ground of constructive fraud, operating independently of any ingredient of actual fraud, being intended as a protection to the client against the strong influence to which the confidential relationship naturally gives rise. The following Tennessee cases have applied the preponderance of the evidence standard as the requirement to overcome presumption of undue influence arising out of confidential and fiduciary relationships: Taliaferro v. Green, 622 S.W.2d 829 (Tenn. App. 1981); Owen v. Stanley, 739 S.W.2d 782 (Tenn. App. 1987); Reynolds v. Day, 792 S.W.2d 924 (Tenn. App. 1990); Crain v. Brown, 823 S.W.2d 187 (Tenn. App. 1991). These cases rely principally on Tennessee Pattern Jury Instruction-Civil 11.60.
Moreover, even if the evidence was in some sense newly-discovered, relief from a judgment on the basis of such evidence may only be granted where the evidence could not have been discovered through the exercise of reasonable diligence. Crain v. Brown, 823 S.W.2d 187, 192 (Tenn. App. 1991). Here, Pamela Spence had some idea at least as early as October 1991 that Ben Martin may have been responsible for the fire, and yet she took no steps to interview his step-mother — the person who had sold the home to the Spences.
In considering a motion for a directed verdict, the trial court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Newcomb v. Kohler Co., 222 S.W.3d 368, 390 (Tenn. 2006) (quoting Crain v. Benton, 823 S.W.2d 187, 195 (Tenn. Ct. App. 1991)); Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006). A motion for a directed verdict should not be granted "if the party with the burden of proof has presented sufficient evidence to create an issue of fact for the jury to decide."