TBA Law Blog

Posted by: Thomas Wright & Ben Welch on Feb 1, 2015

Journal Issue Date: Feb 2015

Journal Name: February 2015 - Vol. 51, No. 2

NOTE: Since publication, the authors have updated to include more types of cases in which clear and convincing evidence will be required: 

• Clear and convincing evidence is required to prove the element of "actual malice" in a public figure defamation case. Trigg v. Lakeway Publishers Inc., 720 S.W.2d 69, 75 (Tenn. App. 1986)."

• The alleged "donee" of an "intervivos" gift must prove both intent and delivery by clear and convincing evidence. Ingram v. Phillips, 684 S.W.2d 954 (Tenn. App. 1984), perm app denied (1985); Kesterson v. Kesterson, 2006 WL16309 (Tenn. App. 2006).



On those increasingly rare occasions when I find myself reading a jury charge to 12 good citizens who have no legal training, I sometimes marvel at how ridiculous the instructions about the law sound. I am certain that the trial bar[1] sometimes wonders if those of us on the Tennessee Pattern Instruction Committees ever really work on these charges. Having served on the TPI-Civil Committee for the last eight years, I can assure you that the committee works extremely hard to make sure the charges are accurate, that the “use notes” are helpful, and that the language is as simple and understandable as possible.

One of the tasks regularly undertaken by the committee is the review of recently published decisions from the Tennessee Supreme Court or Court of Appeals. Last year, as part of that work, I was scouring volume 347 S.W.3d for any Tennessee decisions that might impact our pattern instructions when I came across a case holding that the party seeking to prove the existence of an implied joint venture or partnership must do so by clear and convincing evidence.[2]

Clear and Convincing Evidence to Establish an Implied Partnership

Even though I have been an attorney for 30 years and a judge for 16, I never knew that the burden of proof for establishing an implied partnership in Tennessee was clear and convincing evidence. Wondering if we had a jury charge on this issue, I consulted the T.P.I. and found definitions for “partnership”[3] and “joint ventures,”[4] but no instruction about employing the clear and convincing (hereafter “C&C”) evidence standard when an implied partnership is alleged.[5]

Because the C&C standard is generally reserved for extraordinary and extremely serious cases — often touching upon constitutional rights such as the termination of parental rights[6] or the imposition of punitive damages[7] — I decided to look further into the basis for application of the C&C standard in implied partnership cases. What I found is that most of the implied partnership/ joint venture cases involved former lovers[8] or dead folks or both. The Via case involved an unmarried female former cohabitant alleging a joint venture in the improvement of the property where the parties cohabited.[9]

As authority for imposition of the C&C standard on this implied joint venture allegation in Via, the Tennessee Court of Appeals cites Story v. Lenear.[10] Story also involved unmarried former cohabitants and an alleged implied partnership.[11]

History of Application of the Clear and Convincing Standard

Without giving you an entire law review article on the development of the C&C standard in Tennessee, suffice it to say that I followed the line of authority back to a 1932 case involving an alleged oral contract between former unmarried cohabitants.[12]

The complainant in the 1932 case, Johnson, alleged that she and her deceased male concubine had entered into an oral partnership agreement during their cohabitation.[13] The court held that for an oral contract to be enforced, “the triers of the facts are required to carefully scrutinize and weigh the evidence, and should be satisfied of its existence by clear and convincing proof.”[14] This appears to be the first recorded statement adopting the C&C evidence standard in this context in Tennessee.

From Johnson, the line of authority diverts to a New York case where a nephew attempted to enforce an oral contract he allegedly made with his deceased uncle.[15] The court held that the nephew must prove the existence of this agreement by clear and convincing proof.[16] Interestingly each of these early cases involved deals with the dead; but that was not asserted as the basis for using the C&C standard. Nor were the cases limited to implied partnerships, a trend that can and has continued today in Tennessee.

The Standard Today

The standard of C&C evidence is still alive and well in Tennessee in 2015. In fact, it has been applied in an increasing number of situations. For instance, Tennessee courts have required the C&C evidentiary standard where an oral contract between a property owner and a broker is sought to be proven[17] as well as cases where one side seeks to reform a mistake in a contract.[18]

Besides implied partnerships and the two above-mentioned instances, another often litigated issue where the C&C standard has been applied is in the imposition of a constructive trust.[19] Tennessee courts have imposed a constructive trust in four types of cases: first, where a person procures the legal title to property in violation of some duty, express or implied, to the true owner; second, where the title to property is obtained by fraud, duress or other inequitable means; third, where a person makes use of some relation of influence or confidence to obtain the legal title upon more advantageous terms than could otherwise have been obtained; and fourth, where a person acquires property with notice that another is entitled to its benefits.[20] In order to prove the existence of a constructive trust, the plaintiff must do so by C&C evidence.[21]

The Tennessee legislature has imposed the C&C evidence standard in certain instances where it has found a compelling public policy.[22] Likewise, Tennessee courts have found their own instances where they believe the C&C standard should be imposed.[23]

Since you have read this far, here is the payoff, a list of all the types of civil cases[24] I could find where C&C evidence is the burden of proof.

Cases in Which the C&C Standard Is Required

  1. Judicial finding of “dependent, neglected or unruly” juvenile.[25]
  2. Termination of parental rights.[26]
  3. Establishment of parental relationship for purposes of intestate succession.[27]
  4. To demonstrate the existence of substantial harm to a child if left in custody of a biological parent when a non-parent seeks custody.[28]
  5. Lack of mental capacity as a basis to void a marriage.[29]
  6. Finding of disability and need for assistance before a conservator or guardian may be appointed.[30]
  7. To establish that an heir or devisee survived the decedent by 120 hours.[31]
  8. To overcome the presumption of undue influence.[32]
  9. Proving the existence of an unknown motorist to recover under the uninsured motorist provision of an insurance policy when no physical contact occurred between the unknown motorist and the insured.[33]
  10. Punitive damages.]34]
  11. Termination of employment of tenured college professors.[35]
  12. Recovery of actual documented expenses by non-licensed contractor.[36]
  13. To prove the execution and contents of a written instrument that is not produced.[37]
  14. To establish a constructive trust.[38]
  15. To establish an oral contract between a property owner and a real estate broker.[39]
  16. To establish an oral trust made contemporaneously with a transfer of realty.[40]
  17. To set aside a deed or invalidate a written instrument.[41]
  18. To reform a written contract on ground of mistake.[42]
  19. To impeach a notary certificate of acknowledgment.[43]
  20. To establish a prescriptive easement.[44]
  21. Implied dedication of a public road.[45]
  22. Challenging a franchise tax assessment.[46]
  23. To establish official misconduct in an ouster suit.[47]
  24. For reinstatement of a law license.[48]
  25. To establish an implied partnership or joint venture.[49]


Since the “standard of proof serves to allocate the risk of error and to instruct the fact finder as to the degree of confidence society expects for a particular decision,”50 I am certain that there are many other situations where a thoughtful or creative lawyer can advocate for imposition of the C&C standard. For all these years I thought civil cases were decided on a preponderance of the evidence standard with very limited and important exceptions. It now appears that the exceptions are poised to swallow the rule.

The question that remains is this: If oral or implied partnership agreements, as well as oral real estate listing contracts, must be proven by C&C evidence, why aren’t all oral or implied contracts or agreements in Tennessee held to the same standard? The standard of C&C evidence is well established for implied partnerships and constructive trusts and the argument can be made that it should be applied to all oral or implied contracts or agreements.

I will leave that academic debate to others. My goal is to give you information you can use in your practice and to form your own opinions. Maybe one day, this issue will be argued in my courtroom. I look forward to that day and hearing what the lawyer has to say.


  1. Those few hearty souls that still actually have jury trials every once in a while.
  2. Via v. Oehlert, 347 S.W.3d 224 (Tenn. App. 2010).
  3. 8 Tennessee Practice, Pattern Jury Instructions — Civil T.P.I. 12.20 (2013).
  4. 8 Tennessee Practice, Pattern Jury Instructions — Civil T.P.I. 12.30 (2013).
  5. As a result of my “ground breaking” discovery, we have now adopted amendments to TPI — Civil 12.20 and 12.30 to require proof by C&C evidence for establishing an implied partnership or joint venture.
  6. Tenn. Code Ann. § 36-1-113(c) (2014).
  7. Tenn. Code Ann. § 29-39-104(a)(1) (Supp. 2014).
  8. Usually referred to by litigants in East Tennessee as “my fiancé,” now widely heralded as “cohabitants;” but, I always liked the term from the Bible, “concubines,” even though it really only referred to unmarried cohabiting women. I apply the term equally to the sexes, and as a shorthand reference to a party’s future ex-fiancé.
  9. Via, 347 S.W.3d at 226-27.
  10. 166 S.W.3d 167, 185 (Tenn. App. 2004).
  11. Id. at 170.
  12. Johnson v. Graves, 15 Tenn. App. 466, 467-68 (1932).
  13. Id. at 467.
  14. Id. at 481 (quoting McCallum v. Perkins, 126 Misc. 436, 438 (1925).
  15. McCallum, 126 Misc. at 437.
  16. Id. at 438 (citing McKeon v. Van Slyck, 223 N.Y. 392 (1918).
  17. Lewis v. Wallace, 1985 Tenn. App. LEXIS 2675 (1985) (citing Alexander v. C.C. Powell Realty Co., 535 S.W.2d 154 (Tenn. App. 1975); Lay v. Fairfield Dev., 929 S.W.2d 352 (Tenn. App. 1996).
  18. E.g. Pierce v. Flynn, 656 S.W.2d 42, 46 (Tenn. App. 1983); Rentenbach Eng’g Co., Constr. Div. v. Gen. Realty Ltd., 707 S.W.2d 524 (Tenn. App. 1985); Worley v. White Tire of Tenn. Inc., 182 S.W.3d 306 (Tenn. App. 2005).
  19. See Cothron v. Cothron, 110 S.W.2d 1054 (Tenn. App. 1937); Linder v. Little, 490 S.W.2d 717 (Tenn. App. 1972); Sanderson v. Milligan, 585 S.W.2d 573 (Tenn. 1979); Allen v. Nat’l Bank of Newport, 839 S.W.2d 763 (Tenn. App. 1992).
  20. Story, 166 S.W.3d at 185 (quoting Myers v. Myers, 891 S.W.2d 216, 219 (Tenn. App. 1994).
  21. Id. (citing Browder v. Hite, 602 S.W.2d 489, 493 (Tenn. App. 1980).
  22. Teter v. Republic Parking Sys., 181 S.W.3d 330, 341 (Tenn. 2005).
  23. Id.
  24. An examination of instances in the criminal law where the Tenn. Code Ann. 39-11-501(a)(insanity defense) C&C evidence standard is utilized has not been undertaken.
  25. Tenn. Code Ann. § 37-1-129(c) (2014).
  26. Tenn. Code Ann. § 36-1-113(c) (2014); See Santosky v. Kramer, 455 U.S. 745 (1982).
  27. Tenn. Code Ann. § 31-2-105 (2007).
  28. Ray v. Ray, 83 S.W.3d 726, 738 (Tenn. App. 2001).
  29. In re: Estate of Smallman, 398 S.W.3d 134, 155 (Tenn. 2013).
  30. Tenn. Code Ann. § 34-1-126 (2007).
  31. Tenn. Code Ann. § 31-3-120 (2007).
  32. Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (quoting Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995).
  33. Tenn. Code Ann. § 56-7-1201(e) (2008).
  34. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992); Tenn. Code Ann. § 29-39-104(a)(1) (Supp. 2014).
  35. Tenn. Code Ann. § 49-8-303(a)(4) (2013).
  36. Tenn. Code Ann. § 62-6-103 (Supp. 2014); Varnadoe v. McGhee, 149 S.W.3d 644 (Tenn. App. 2004).
  37. Pearson v. McCallum, 173 S.W.2d 150, 158 (Tenn. App. 1941).
  38. Footnotes 19-20, supra.
  39. Footnote 17, supra.
  40. Linder v. Little, 490 S.W.2d 717, 723 (Tenn. App. 1972).
  41. Pugh v. Burton, 166 S.W.2d 624,627 (Tenn. App. 1942). Estate of Acuff v. O’Linger, 56 S.W.3d 527, 531 (Tenn. App. 2001).
  42. Pierce v. Flynn, 656 S.W.2d 42, 46 (Tenn. App. 1983) (quoting Davidson v. Greer, 35 Tenn. (3 Sneed) 384 (1855).
  43. Estate of Acuff, 56 S.W.3d 527,531-33.
  44. Newman v. Woodard, 288 S.W.3d 862, 868 (Tenn. App. 2008).
  45. Brandy Hills Estates v. Reeves, 237 S.W.3d 307, 321 (Tenn. App. 2006).
  46. Louisdreyfus Corp. v. Huddleston, 933 S.W.2d 460, 467 (Tenn. App. 1996).
  47. State, ex rel, Carney v. Crosby, 255 S.W. 3d 593, 597 (Tenn. App. 2008).
  48. Milligan v. Bd. of Professional Responsibility of the Supreme Court of Tenn., 301 S.W.3d 619, 627 (Tenn. 2009) (quoting Tenn. Sup.Ct. R. 9, § 19.3).
  49. Footnote 2, supra.
  50. Estate of Acuff, 56 S.W.3d 527, 536.

Tom Wright TOM WRIGHT is circuit judge in Tennessee’s 3rd Judicial District, which he has done since his election in 2006 and reelection in 2014. Before that he served for eight years as the General Sessions and juvenile judge for Greene County, having been elected to that position in 1998. Wright graduated from the University of Tennessee College of Law with high honors in 1983 and was selected for membership in the Order of the Coif. He served as a judicial law clerk for U.S. District Judge Thomas G. Hull, then was in private practice for several years. He was then assistant federal community defender for upper East Tennessee for six years before his election as judge in 1998.

Originally from Florida, Ben Welch and his family have called Parrottsville, Tenn., home for the last three years. He is currently in his second year of law school at the University of South Carolina. He also holds a master’s degree from the University of Southern Mississippi and hopes to work as a trial lawyer after graduation, either as a defense attorney or in the world of intellectual property.