Friendly Ice Cream Corp. v. Beckner

Present:   All the Justices

FRIENDLY ICE CREAM
CORPORATION, ET AL.

v.   Record No. 031640    OPINION BY JUSTICE ELIZABETH B. LACY
                                       June 10, 2004
BEATRICE F. BECKNER

            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                  Gaylord L. Finch, Jr., Judge

      In this appeal we review the chancellor's decree

rescinding an amendment to a lease because the lease amendment

was the result of undue influence.

                              Facts

      Beatrice Beckner and her husband entered into a

commercial lease with Friendly Ice Cream Corporation

(Friendly) allowing Friendly to build and operate a retail

store on property owned by the Beckners.   The lease commenced

in 1976 with an original term of 15 years.   Friendly could

exercise five renewal options of five years each.   If all five

options were exercised, the lease would terminate in 2016.    In

addition to a monthly base rent, the lease required an annual

payment of two percent of the store's annual gross sales

exceeding $275,000 (percentage rent).   FriendCo Restaurants,

Inc. (FriendCo) operated the retail ice cream store through a

sublease with Friendly.   In 2001, the lease generated a base

rent of $1,105.00 per month and a percentage rent of

$7,984.68, for a total income of approximately $21,200.00.
     In December 2001, Friendly and FriendCo decided to close

the retail store.   Fourteen years remained on the lease if the

renewal option were fully exercised.    Riggs Bank, N.A.

(Riggs), among others, expressed an interest in acquiring

Friendly's interest in the lease.     Riggs planned to demolish

the existing retail building and build a bank building on the

property.   Riggs was willing to pay Friendly approximately

$800,000 for terminating the sublease and assigning the lease

to Riggs if the lease were amended to relieve Riggs from

payment of the percentage rent.

     On December 26, 2001, Sandra L. Hughes, Vice-President

and Deputy General Counsel for FriendCo, wrote to the Beckners

seeking their consent to the assignment of the lease to Riggs,

to the proposed redevelopment of the property, and to an

agreement that the percentage rent requirement would not apply

to Riggs' use of the property as a bank.    On January 3, 2002,

in response to a telephone call from Mrs. Beckner, Hughes went

to Mrs. Beckner's home and discussed the provisions of a

proposed amendment to the lease that would meet Riggs'

conditions for the lease assignment.    At that meeting Mrs.

Beckner, then widowed and 80 years old, told Hughes that her

lawyer was Norman Hammer.

     Hughes contacted Hammer and, at Hammer's request, sent

him a letter dated January 25, 2002, setting out the history


                                  2
of payments made on the percentage rent, offering to increase

the base rate by $5,000 a year, and proposing an amendment to

the lease eliminating the percentage rent.   Hammer replied on

February 20, stating that he had no counter offer and that he

wanted to confer with Mrs. Beckner's son, Robert O. Beckner.

     In a February 27 telephone call to Hughes, Mrs. Beckner

stated that Hammer was no longer her attorney and that she

wanted to meet with Hughes to discuss the amendment to the

lease.   Hughes went to Mrs. Beckner's home and discussed the

terms of the proposed amendment to the lease, including the

offer to increase the annual base rent by $5,000.   Mrs.

Beckner replied that she wanted the base rate increased by

$8,940 a year, from $1,105 per month to $1,850 per month.

Hughes agreed to submit Mrs. Beckner's proposal to Friendly.

     On February 28, Hammer sent a facsimile to Hughes

instructing Hughes not to contact Mrs. Beckner directly and

terming the "present offer" unacceptable.    Hughes replied by

facsimile on March 1, telling Hammer that she had met with

Mrs. Beckner at Mrs. Beckner's request; that Mrs. Beckner

stated that Hammer no longer represented Mrs. Beckner; that

Hughes was a principal of FriendCo, the subtenant; and that

"principals may talk to one another at any time, without going

through lawyers if they so choose."




                                3
     Hammer met with Mrs. Beckner on March 7, 2002 to discuss

the amendment to the lease and his representation of her.

Also present at the meeting were Robert Beckner, Clyde R.

Christopherson − a lawyer who had also represented Mrs.

Beckner, and Leroy Jackson, Mrs. Beckner's long-time friend

and insurance agent.   Mrs. Beckner agreed that Hammer should

negotiate with Friendly on her behalf regarding the proposed

amended lease.   Christopherson drafted a letter reflecting

this decision and, after reviewing the letter with Mrs.

Beckner on March 8, sent the letter to Hughes' superior, David

J. Norman.

     Mrs. Beckner telephoned Hughes on Friday, March 8,

reiterated her desire to deal directly with Hughes, and asked

if Friendly had responded to the increase in base rent that

Mrs. Beckner had requested.   Hughes told Mrs. Beckner that

Friendly had agreed to the increase.   Although Mrs. Beckner

wanted to sign the amendment to the lease immediately, Hughes

could not meet with her until Monday, March 11.   Hughes sent

Mrs. Beckner a copy of the amendment to the lease along with a

copy of Christopherson's March 8 letter and the facsimile

exchanges between Hammer and Hughes on February 28 and

March 1.

     On March 11, Hughes arrived at Mrs. Beckner's home,

reviewed the amendment to the lease with her, and then, at


                                4
Mrs. Beckner's direction, went with her to the bank where a

bank employee with whom Mrs. Beckner had dealt in the past

notarized her signature on the documents.   Hughes then

presented Mrs. Beckner with a letter Hughes had drafted for

Mrs. Beckner's signature stating that Mrs. Beckner wanted to

deal directly with Hughes.    Mrs. Beckner signed the letter.

     Shortly thereafter, Robert Beckner informed Hughes and

Norman that he was concerned about his mother's actions.

After receiving copies of the documents Mrs. Beckner had

signed, Christopherson wrote Norman indicating Christopherson

considered the documents to be invalid and that the documents

should be resubmitted to Mrs. Beckner for further

consideration.

                             Proceeding

     On March 22, 2002, Mrs. Beckner filed a bill of complaint

against Friendly and FriendCo seeking rescission of the

amendment to the lease on four grounds:   fraud, gross

inadequacy of consideration, unjust enrichment, and undue

influence, Counts I through IV, respectively.1    The fraud count

was dismissed by agreed order prior to trial and Mrs. Beckner

abandoned the unjust enrichment count at trial.    Friendly and

FriendCo (collectively "Friendly's") filed a motion for


     1
       A third defendant, DaveCo. Restaurants, Inc., was
dismissed with prejudice.

                                 5
summary judgment asserting that Mrs. Beckner was not entitled

to rescission because she had acquiesced to the terms of the

amended lease when she cashed checks she received pursuant to

the terms of the amended lease.       The chancellor denied this

motion as not appropriate for summary judgment.

     Following an ore tenus hearing, the chancellor entered a

decree in favor of Mrs. Beckner on Counts II and IV.      The

chancellor found that the amendment to the lease was the

product of undue influence because Mrs. Beckner produced clear

and convincing evidence that she suffered from great weakness

of mind, Hughes had a confidential relationship with her

consisting of a formal and informal relationship regarding

business matters, and the consideration for the amendment to

the lease was grossly inadequate and occurred in suspicious

circumstances.   The chancellor rescinded the amendment to the

lease and required Mrs. Beckner to pay $5,888.23, the amount

she received under the amended lease exceeding that which she

would have received prior to the amendment.      We awarded

Friendly's an appeal.

                   Count IV − Undue Influence

     On appeal, Friendly's raises five assignments of error.

We first consider the three assignments of error that

challenge the chancellor's action rescinding the lease

amendment based on its finding of undue influence.


                                  6
     A court of equity will not set aside a contract because

it is "rash, improvident or [a] hard bargain" but equity will

act if the circumstances raise the inference that the contract

was the result of imposition, deception, or undue influence.

Payne v. Simmons, 232 Va. 379, 384, 350 S.E.2d 637, 640 (1986)

(quoting Long v. Harrison, 134 Va. 424, 441-42, 114 S.E. 656,

661-62 (1922)); Jackson v. Seymour, 193 Va. 735, 740-41, 71

S.E.2d 181, 185 (1952).   To set aside a deed or contract on

the basis of undue influence requires a showing that the free

agency of the contracting party has been destroyed.    Tabb v.

Willis, 155 Va. 836, 858, 156 S.E. 556, 563 (1931); Jenkins v.

Trice, 152 Va. 411, 429, 147 S.E. 251, 257 (1929).     Because

undue influence is a species of fraud, the person seeking to

set aside the contract must prove undue influence by clear and

convincing evidence.    Redford v. Booker, 166 Va. 561, 574, 185

S.E. 879, 885 (1936).

     Direct proof of undue influence is often difficult to

produce.   In the seminal case of Fishburne v. Ferguson, 84 Va.

87, 111, 4 S.E. 575, 582 (1887), however, this Court

identified two situations which we considered sufficient to

show that a contracting party's free agency was destroyed,

and, once established, shift the burden of production to the

proponent of the contract.   The first involved the mental




                                 7
state of the contracting party and the amount of

consideration:

      [W]here . . . great weakness of mind concurs
      with gross inadequacy of consideration, or
      circumstances of suspicion, the transaction
      will be presumed to have been brought about by
      undue influence.

Id.   Thus, if the party seeking rescission of the deed or

contract produces clear and convincing evidence of great

weakness of mind and grossly inadequate consideration or

suspicious circumstances, he has established a prima facie case

of undue influence and, absent sufficient rebuttal evidence, is

entitled to rescission of the document.   See also Payne, 232

Va. at 384-86, 350 S.E.2d at 640-41 (deed rescinded based upon

grantor's diminished mental capacity and the fact that $5,000,

without the grantor retaining a life tenancy was grossly

inadequate consideration); McGrue v. Brownfield, 202 Va. 418,

425-27, 117 S.E.2d 701, 706-08 (1961) (rescission unavailable

absent weakness of mind where conveyance of property for

cancellation of $400 debt secured by deed of trust was not

grossly inadequate consideration); Foster v. Helms, 169 Va.

634, 643-45, 194 S.E. 799, 802-03 (1938) (rescission not

available because grantor competent and agreement to care for

grantor was not grossly inadequate consideration); Bibby v.

Thomas, 165 Va. 248, 253, 182 S.E. 226, 228-29 (1935) (deed by




                                8
elderly, infirm, illiterate woman, conveying property valued at

$1,200 to caretaker for $100 was rescinded).

     The second instance Fishburne identified arises when a

confidential relationship exists between the grantor and

proponent of the instrument:

     [W]here one person stands in a relation of
     special confidence towards another, so as to
     acquire an habitual influence over him, he
     cannot accept from such person a personal
     benefit without exposing himself to the risk,
     in a degree proportioned to the nature of their
     connection, of having it set aside as unduly
     obtained.

84 Va. at 112-13, 4 S.E. at 582.    Here, equity considers the

benefit to the person in the relation of special confidence

presumptively invalid and, once that relationship and benefit

is established, the burden of going forward with evidence that

the transaction was fair rests on the proponent of the

transaction.   See also Economopoulos v. Kolaitis, 259 Va. 806,

812, 528 S.E.2d 714, 718 (2000) (the presence of a

confidential relationship creates a presumption of fraud.);

Nuckols v. Nuckols, 228 Va. 25, 34-38, 320 S.E.2d 734, 739-41

(1984) (one seeking rescission has burden to prove

confidential or fiduciary relationship or other direction and

control depriving grantor of free volition); Nicholson v.

Shockey, 192 Va. 270, 275, 64 S.E.2d 813, 816 (1951) (gift

from mother to son acting as attorney and confidential advisor



                                9
in transaction is "presumptively invalid;" donee must overcome

this presumption by clear and convincing evidence); Waddy v.

Grimes, 154 Va. 615, 647, 153 S.E. 807, 817 (1930) (where a

deed is made to the wife of the grantor's duly appointed

committee, the burden of proving that the transactions are

valid falls on the party seeking to uphold the deed).

     Initially, we note that in this case the trial court

stated that Mrs. Beckner had established "the three elements of

[the undue influence] presumption."   We assume this refers to

the statement in Martin v. Phillips, 235 Va. 523, 528, 369

S.E.2d 397, 400 (1988), that the presumption of undue influence

arises if weakness of mind, grossly inadequate consideration or

suspicious circumstances, and a fiduciary or confidential

relationship are established by clear and convincing evidence.

As we have discussed, the presumption of undue influence arises

and the burden of going forward with the evidence shifts when

weakness of mind and grossly inadequate consideration or

suspicious circumstances are shown or when a confidential

relationship is established.   To the extent Martin requires all

three elements to be shown before the presumption of undue

influence can be invoked, it is overruled.   Nevertheless, under

the principles established in Fishburne and subsequent cases,

the chancellor's findings in this case, if supported by the

record, entitled Mrs. Beckner to the presumption of undue


                               10
influence under either situation − a confidential relationship

or weakness of mind and grossly inadequate consideration or

suspicious circumstances.

     We now review the chancellor's findings, applying

established principles of appellate review.   We must accept

the chancellor's findings of fact unless they are plainly

wrong or without evidence to support them.    The Dunbar Group,

LLC v. Tignor, 267 Va. 361, 367, 593 S.E.2d 216, 219 (2004).

                 A.    Confidential Relationship

     We begin our review by considering whether the evidence

supports the finding that Hughes had a confidential

relationship with Mrs. Beckner regarding matters of business.

The chancellor did not identify any evidence upon which he

based his finding.    Mrs. Beckner argues, however, that the

requisite confidential relationship existed because Hughes

took "actions expressly designed to . . . ingratiate[ ]

herself with Mrs. Beckner to the exclusion of Mrs. Beckner's

attorneys" and "acted virtually as counsel to Mrs. Beckner,

while adverse to her interests" by giving Mrs. Beckner legal

advice in explaining sections of the lease and proposed

amendment.

     We have described a confidential relationship as a

relationship that is




                                11
     "not confined to any specific association of the
     parties; it is one wherein a party is bound to act
     for the benefit of another, and can take no
     advantage to himself. It appears when the
     circumstances make it certain the parties do not
     deal on equal terms, but, on the one side, there
     is an overmastering influence, or, on the other,
     weakness, dependence, or trust, justifiably
     reposed; in both an unfair advantage is possible."

          Trust alone, however, is not sufficient. We
     trust most men with whom we deal. There must be
     something reciprocal in the relationship before
     the rule can be invoked. Before liability can be
     fastened upon one there must have been something
     in the course of dealings for which he was in part
     responsible that induced another to lean upon him,
     and from which it can be inferred that the
     ordinary right to contract had been surrendered.
     If this were not true a reputation for fair
     dealing would be a liability and an unsavory one
     an asset.

Hancock v. Anderson, 160 Va. 225, 240–41, 168 S.E. 458, 463

(1933) (citation omitted).   We have also held that a

confidential relationship exists between a parent and child

when accompanied by an attorney-client or principal-agent

relationship, or between family members when the family member

provides financial advice or handles the finances of another

family member.   Economopoulos, 259 Va. at 812-13, 528 S.E.2d

at 718.

     Mrs. Beckner does not suggest that an attorney-client or

any other fiduciary relationship existed between herself and

Hughes; rather Mrs. Beckner suggests that the confidential

relationship arose from Hughes' "legal advice" on the terms of



                               12
the lease and amendment and from Hughes' attempt to "exclude

all others" including Hammer and Christopherson.    Finally,

Mrs. Beckner argues that the evidence shows that she "liked

and trusted" Hughes and did not think Hughes "would attempt to

cheat her."   These conclusions are neither sufficient to

establish a confidential relationship nor are they supported

by the evidence.

     The record demonstrates that the relationship between

Mrs. Beckner and Hughes had the hallmarks of a business

relationship, not those of a confidential relationship.      There

was no history of financial interaction of any kind between

Hughes and Mrs. Beckner.   Compare Nicholson, 192 Va. at 278,

64 S.E.2d at 818 (business relationship between mother and son

existed over period of years); Jackson, 193 Va. at 737-38, 71

S.E.2d at 183 (brother managed and rented sister's land).      The

relationship was of short duration, consisting of

approximately eight contacts beginning on December 26, 2001

and ending on March 11, 2002, six of which Mrs. Beckner

initiated.    When Mrs. Beckner initially told Hughes that

Hammer was representing her, Hughes contacted Hammer and sent

him a copy of the proposed amendment to the lease.

     Mrs. Beckner testified that she knew Hughes was "with

Friendly's," that the percentage rent under the lease was

going down every year, that some Friendly's stores were


                                13
closing in the area, and that she would not receive any

percentage rent if the store on her property closed.    The

record is clear that during the course of this three-month

relationship, Mrs. Beckner did not allow Hughes to make

decisions for her regarding the second amendment to the lease.

In fact, Mrs. Beckner negotiated a monthly base rent higher

than the rate Hughes proposed.    Mrs. Beckner received a copy

of the proposed amendment to the lease in advance of signing

it and she chose the bank and bank employee who notarized her

signatures on the amendment to the lease.

     Hughes testified that she considered Mrs. Beckner to be

her landlord and that negotiations regarding the second

amendment to the lease involved "[d]ealing with the other

side."

     The relationship Hughes and Mrs. Beckner described did

not involve any requirement that Hughes act on Mrs. Beckner's

behalf, nor did either party presume that Hughes should or

would do so.   Although Mrs. Beckner may have liked and trusted

Hughes, such trust alone is insufficient to establish a

confidential relationship.   Hancock, 160 Va. at 240-41, 168

S.E. at 463.   The record at most reflects a commercial

relationship in which the parties trusted each other.

     Mrs. Beckner failed to carry her burden of proof to show

she and Hughes had a confidential relationship, formal or


                                 14
informal, regarding matters of business.     Thus, she was not

entitled to the presumption of undue influence and would not

be entitled to judgment in her favor on this basis.

               B.   Mental Status and Consideration

     The chancellor also found that Mrs. Beckner was entitled

to a presumption of undue influence because she suffered from

"great weakness of mind," and that the consideration she

received was grossly inadequate and the transaction occurred

under suspicious circumstances.      Again, although the

chancellor did not identify the evidence upon which he based

these findings, Mrs. Beckner points to a number of factors

which she asserts support the chancellor's findings.

     Beginning with the adequacy of the consideration, Mrs.

Beckner first claims that under the original or amended lease,

the base rent was "significantly below prevailing market

rates."   Mrs. Beckner claimed that the rental value of the

property "had risen dramatically" and, according to her expert

witness, the current fair market rental value would be between

approximately $5,000 and $8,000 a month.     However, Mrs.

Beckner's expert did not consider the impact the outstanding

lease would have on the fair market rental value of the

property.   The chancellor, while refusing to strike the

testimony of this expert, considered it "weightless."      We

agree with the chancellor that evidence of current fair market


                                15
rental value without consideration of the existence of the

lease or its conditions is not probative of whether the

consideration for the amendment to the lease is grossly

inadequate.

        Next, Mrs. Beckner argues that the consideration was

grossly inadequate because the increase in base rent contained

in the amendment did not significantly increase the annual

amount she received compared to the aggregate amount of base

and percentage rent she received under the lease before the

amendment.    The base rent in the amended lease produced only

$80 a month more than she received in 2001 from the combined

base and percentage rents, thereby making the consideration

received grossly inadequate, according to Mrs. Beckner.

        We disagree.   The increase in the base rate was in an

amount Mrs. Beckner specifically requested.     Over the likely

lifetime of the amended lease, Mrs. Beckner would receive

$310,800 in base rent, $125,160 more than she would have

received in base rent without the amendment.     The record also

shows that the percentage rent in 2001 declined from the prior

year.    There is no evidence in the record that the value of

percentage rent would remain at 2001 levels or would increase.

Although Mrs. Beckner labels as speculative the suggestion

that Friendly's would or could close the retail store, thereby

discontinuing the obligation to pay percentage rent, the


                                  16
uncontradicted evidence was that Friendly's had decided to

close the store and that Mrs. Beckner was aware of that

decision.    Mrs. Beckner testified that she understood that, if

the store closed, she would no longer receive any percentage

rent.    Thus, the increase in base rent was not grossly

inadequate in light of the additional income it would produce

and the uncertainty of the amount or continuation of revenue

from the percentage rent.

        Mrs. Beckner next argues that the possibility that she

might own a bank building valued at $800,000 at the end of the

lease period should not be included as part of the

consideration because it also was speculative.    Here again the

uncontradicted evidence was that, if the lease was amended,

Riggs planned to build such a building.    This potential asset

was a known part of the business transaction and, in the

absence of fraud, may be considered as part of the benefit

Mrs. Beckner received from agreeing to the lease amendment.

        Finally, Mrs. Beckner asserts that the appropriate

comparison of "value exchanged" is to compare the additional

$80 per month Mrs. Beckner would receive under the amendment

with the $800,000 Friendly's would receive for the assignment

of the lease to Riggs.    This disparity, she maintains, shows

that the consideration she received was grossly inadequate.

The amount Friendly's would receive from Riggs to assign the


                                 17
lease is irrelevant to the adequacy of the consideration Mrs.

Beckner received.   Mrs. Beckner could not recover any amount

from Riggs because she could not assign the lease to Riggs.

The lease had, at a minimum, four years remaining, with the

potential to extend, if the tenant so desired, to fourteen

years, and contained no provisions for termination by the

landlord other than for nonpayment of rent or insolvency of

the tenant.   Therefore, the value of Mrs. Beckner's

consideration must be measured not simply in the amount of

increase in base rent but also in light of the rights that she

possessed regarding the property and her options at the time

of the amendment.

     Consideration is grossly inadequate when the

" 'inequality [is] so strong, gross and manifest that it must

be impossible to state it to a [person] of common sense

without producing an exclamation at the inequality of it

. . . .' "    Jackson, 193 Va. at 741, 71 S.E.2d at 185 (quoting

Gwynne v. Heaton, 1 Bro. Ch. 1, 9, 28 Eng. Rep. 949 (1778)).

That others could have bargained for a higher base rent or

secured more favorable terms for the execution of the lease

amendment does not affect the determination of grossly

inadequate consideration.   In this case, by executing the

amendment to the lease, Mrs. Beckner received an annual

increase of $8,940 in base rent regardless of whether the


                                18
lease was assigned to another party and whether any business

was operating on the property.    She also acquired the

possibility of owning the new bank building at the end of the

lease.   This record does not support a finding that the

consideration Mrs. Beckner received was grossly inadequate.

     Mrs. Beckner also asserts the chancellor was justified in

finding that the transaction occurred under suspicious

circumstances because Hughes did not further investigate

whether Mrs. Beckner was represented by counsel following

Christopherson's March 8 letter and because Hughes drafted a

letter for Mrs. Beckner's signature stating that Mrs. Beckner

wanted to deal with Hughes directly.   As noted above, the

record clearly shows that Mrs. Beckner herself initiated all

but two of the contacts with Hughes.   Mrs. Beckner's active

participation in the negotiations regarding the lease

amendment belies the existence of circumstances that would

give rise to a level of suspicion sufficient to support the

presumption of undue influence and rescission of the

amendment.

     We need not address the chancellor's finding that Mrs.

Beckner suffered from great weakness of mind because even

assuming that the finding is supported by the record, weakness

of mind alone will not entitle Mrs. Beckner to rescission.




                                 19
McGrue, 202 Va. at 426, 117 S.E.2d at 707, Fishburne, 84 Va.

at 111, 4 S.E. at 582.

     Because the record is insufficient to support the

chancellor's findings that Mrs. Beckner had a confidential

relationship with Hughes and that the consideration she

received was grossly inadequate or the transaction occurred

under suspicious circumstances, Mrs. Beckner was not entitled

to a presumption of undue influence.   Therefore, the

chancellor erred in rendering judgment in favor of Mrs.

Beckner on Count   IV, Undue Influence.

           Count II − Grossly Inadequate Consideration

     The chancellor also entered judgment in Mrs. Beckner's

favor on Count II of her Bill of Complaint − grossly inadequate

consideration.   Substantial failure of consideration is a

recognized ground for rescission of a contract because such

gross inadequacy is clear evidence of fraud.   Texas Co. v.

Northup, 154 Va. 428, 442-45, 153 S.E. 659, 663-64 (1930);

Broaddus v. Broaddus, 144 Va. 727, 750, 130 S.E. 794, 801

(1925).   The standard for this claim is the same as claims of

undue influence based on grossly inadequate consideration:

"[a]n inequality so strong, gross and manifest that it must be

impossible to state it to a man of common sense without

producing an exclamation at the inequality of it."   Texas Co.,

154 Va. at 443, 153 S.E. at 663, (quoting Gwynne, 1 Bro. Ch.


                               20
at 9).   Finally, because gross inadequacy is based on fraud,

it must be shown by clear and convincing evidence.   Id.

     We have already determined in considering Mrs. Beckner's

claim of undue influence that the record did not support a

finding of grossly inadequate compensation.   Applying the same

standard to her claims in this Count, we conclude that the

chancellor erred in entering judgment in favor of Mrs. Beckner

on Count II because the consideration was not grossly

inadequate.

     Accordingly, for the reasons stated, we will reverse the

trial court's decree rescinding the amendment to the lease and

requiring repayment of funds by Mrs. Beckner.2

                                    Reversed and final judgment.




     2
       In light of this determination, we need not address the
remaining assignments of error.

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