Lofton v. Lofton - 2008 - "Oddities" in the Accounting Practices
HARRY W. LOFTON v. NELDA JOAN LOFTON
Direct Appeal from the Circuit Court for Shelby County
No. CT-007083-03 James F. Russell, Judge
No. W2007-01733-COA-R3-CV - Filed December 30, 2008
Tennessee Court of Appeals Western Section – Filed December 30, 2008; At the February 2005 hearing, Ms. Lofton’s expert William Vance, a forensic CPA, indicated that Mr. Lofton might be using his association with his daughter, Ms. Lofton-Welles to hide business assets. Although Mr. Vance conceded that he could find no empirical evidence to conclusively support his suspicions (in part, because he was denied access to the “books and records of the Lofton-Welles Agency”), he testified that there were “oddities” in the accounting practices of the Lofton Insurance Agency, and that there was “certainly the ability to manipulate income.” Mr. Vance’s testimony gave the trial court yet another reason to suspect that Mr. Lofton was being less than honest with the court–“The Court shares the suspicions expressed by the witness William Vance as to the apparent...less than arms length...nature of the business relationship between the Lofton- Welles Agency and the Harry Lofton Agency.” We have reviewed the entire record in this case and conclude that the trial court’s suspicions concerning Mr. Lofton’s income and business dealings were well founded. The fact that the trial court expressed concern arising from the evidence does not, by itself, lead us to conclude that the trial court held such personal bias toward Mr. Lofton as to warrant recusal. At the close of all proof, the trial court specifically stated that “Harry Lofton has been deceitful with his wife, he has been deceitful with the Court, and it would appear he has even been deceitful with his own attorneys.” While the court’s statement goes to Mr. Lofton’s personal activities, in light of the record as a whole, we believe that the trial court’s assessment of Mr. Lofton as a reasonable basis. The fact that the court points out Mr. Lofton’s deceit, however, goes more to the issue of his credibility as a witness rather than any personal bias toward Mr. Lofton. Throughout the entire proceedings, the trial court was simply seeking to discern the salient facts from the conflicting testimony, a task made more difficult by Mr. Lofton’s lack of candor. From the full record, we cannot conclude that either the proceedings before the trial court, or the comments made by Judge Russell, demonstrate such egregious bias toward Mr. Lofton as to warrant a re-trial of this case.