September 2026 eBulletin Now Available

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

                                                                          

In the Matter of John A. Day,

                                            Respondent.                                   Case No. TSC09211956

 

Petitioners seek the appointment of a conservator for John A. Day, a member of the Tennessee Bar, pursuant to Tenn. Code Ann. § 34-3-101 et seq or, in the alternative, a court order (under Tenn. R. Civ. P. 57) declaring that Mr. Day was born on September 21, 1956, in Madison, Wisconsin.

The Petition was filed by Mr. Day’s siblings because of a heated dispute which arose during a game of Hearts on the screened-in porch at the family cabin on Soo Lake just west of Phillips, Wisconsin. The matter in dispute during this card game, punctuated by generous consumption of Miller Beer, Abbyland beef sticks, and Nasonville Dairy cheese curds? Mr. Day’s date of birth.

Petitioners allege that Mr. Day refused to recognize the date of his birth as asserted by his siblings. The siblings initially assumed that Mr. Day’s position was influenced by the consumption of beer during the card game, coupled with his well-known history of taking outrageous positions purposefully designed to irritate those around him, especially his siblings. However, Mr. Day remained steadfast, even strident, on the issue the next day, causing the five siblings to question his ability to manage his own affairs.

The Petition was filed in the Circuit Court for Williamson County, Mr. Day’s county of residence. After the presentation of evidence by the siblings, Mr. Day moved for a Tenn. R. Civ. P. 41.02 involuntary dismissal of the request for a conservator, arguing that “that upon the facts and the law the [petitioners] ha[d] shown no right to relief.” The court granted the motion. Mr. Day then presented his evidence on the declaratory judgment action.

After the conclusion of the three-day evidentiary hearing that, as the record reflects, tried the patience of the trial judge, the court ruled that Mr. Day was born on September 21, 1956, in Madison, Wisconsin. Mr. Day immediately filed a notice of appeal and asked this Court to “reach down” and accept this case under Tenn. Code Ann. § 16-3-201(d), bypassing the Tennessee Court of Appeals. This Court granted the motion for good cause shown and ordered expedited briefing. Mr. Day’s motion for oral argument was denied, as were his two motions to reconsider the denial.

Petitioners did not seek appellate review of the Tenn. R. Civ. P.  41.02 involuntary dismissal of the conservatorship petition and thus that ruling is not at issue in this appeal.

Likewise, numerous evidentiary rulings by the trial court are not at issue in this appeal. Those rulings arose because Mr. Day repeatedly attempted to discredit his siblings with evidence of specific acts of misconduct by each (excluding his brother James, well known in the family to be the “perfect son” and incapable of wrongdoing, at least in the eyes of their mother), over the course of their shared childhood, many of which were directed at him. Showing extraordinary patience with Mr. Day, the trial court refused to allow such questions or testimony under Tenn. Evid.  R. 608(b). Undoubtedly aware of the wide discretion Tennessee law grants to a trial judge on rulings on evidentiary issues, Mr. Day does not challenge those rulings on appeal. Indeed, Mr. Day was aware of the weakness of his position on these evidentiary issues, at one point urging the trial judge to allow such questioning, because “Judge, we both know that this dog won’t hunt on appeal” absent a favorable ruling in the court below.

Thus, the sole issue of this appeal is whether the trial court correctly established Mr. Day’s date of birth, which the parties agree is a question of fact, not a question of law.

A trial court’s ruling on factual issues is reviewed de novo upon the record in the court below, with a presumption of correctness. Tenn. R. App. P. 13(d).

We first review the factual record, ignoring all evidence the petitioners say cast doubt on Mr. Day’s competence (because that issue has been abandoned), except to the extent indirectly reflected by his refusal to acknowledge his alleged date of birth.

The trial court’s well-drafted Order reflects it based its decision on (a) an appropriately certified birth certificate from Dane County, Wisconsin, admitted into evidence under Tenn. R. Evid. 803(9); and (b) the certified medical records of his mother, the late Elinor Roletta Heath Day (later, Sundell) from the week of his birth, admitted into evidence under Tenn. R. Evid. 803(6) and Tenn. Code Ann. § 24-7-I22; (c) certified records of Mr. Day’s admission to the hospital on the day of his birth, admitted under the previously cited rule and statute; and (d) the sworn testimony of Mr. Day’s siblings, Thomas Day, James Day, Michael Day, Jeffrey Day, and Kathryn Tremelling.

Each of the siblings testified that Mr. Day was born on September 21, 1956, in Madison, Wisconsin. Each of them was forced to admit on cross-examination that it was impossible for them to have personal knowledge of Mr. Day’s birthday since, under their theory, he was born before each of them. That said, the referenced documents are one hundred percent consistent with the oral testimony of the petitioners.

Unaware of the wisdom of Abraham Lincoln, Mr. Day represented himself at trial and on appeal. He testified at length and tendered certain documents into the evidentiary record, all without objection.

Mr. Day explained that he had no personal knowledge of the date of his birth. He did not (and could not) dispute the authenticity or admissibility of his birth certificate or the medical records. He admitted he was (proudly) born in Madison, Wisconsin, declaring himself “a Cheesehead, by the Grace of God.”

Mr. Day introduced evidence (without objection) concerning singer/songwriter Toby Keith’s statements about aging and asked the court to declare Mr. Keith an expert witness on the subject. Perhaps because the trial occurred within a stone’s throw from Nashville, Tennessee, the country music capital of the world and home to the nation’s most gifted songwriters, guitar pickers, and singers, the trial court accepted the evidence under Tenn. R. Evid.  702, ruling that Mr. Keith could provide substantial assistance to the court in ruling on this matter. (Of note, the trial judge also remarked, “in addition, I am curious where Mr. Day intends to go with this evidence.”) The ruling allowing Mr. Keith’s opinions is not challenged in this appeal.

Mr. Day argued that he had adopted the philosophy of late Mr. Keith as set forth in his hit song, “Don’t Let the Old Man In.” The song, written for a film called “The Mule” released in 2018, was inspired by actor Clint Eastwood in a comment made to Mr. Keith about staying active and mentally young despite aging. The song was played in open court during the proceedings.

Mr. Day weaved Mr. Keith’s lyrics throughout his testimony. While refusing to acknowledge his age, Mr. Day admitted he understood he was older today than he was a day earlier.  Transcript, p. 105. He admitted, citing the words of the song, that he “had lived many moons” and acknowledged that he was increasingly “weathered and worn.” Transcript, p. 170. He conceded that “[he] knew all of [his] life that someday it would end,” and such thoughts more frequently enter his consciousness as the years go by. He further admitted that, at least statistically, each passing day increased the likelihood that the “old man” would be “knocking on [his] door” in a “cold bitter wind.” Transcript, p. 177-78.

Yet, he testified, he refused “to let the old man in” and said one cannot simply “leave it up to the old man” to control one’s mindset and thus life. Instead, he chooses to follow the teaching of Mr. Keith, by “trying to love on [his] wife [Joy] and stay[ing] close to [his] friends, toast[ing] each sundown with wine, [and] not let[ting] the old man in.” Transcript, p. 180.

The best way to achieve this state of existence, according to Mr. Day, is to ask yourself the question Mr. Keith raises twice in the song: “how old would you be if didn’t know the day you were born?” (Transcript, p. 190) and instead live life based on how you want to feel, not how old you might be.

The only other witness was Mr. Day’s wife, Joy Day, also a member of the Tennessee Bar. Petitioners first tried to resurrect the lack-of-competency case through questions of Ms. Day, which the trial court quickly shut down due to the previous dismissal of that claim.

For the remainder of her testimony, Ms. Day continually professed confusion as to why she was called to testify given that she lacked personal knowledge of Mr. Day’s date of birth. She explained that, if the birth certificate was correct, she would not appear on the planet for another fourteen years.

On the issue of Mr. Day’s reputation for truth telling (Tenn. R. Evid.  608(a)), Ms. Day (a former products liability defense lawyer) would say no more than, “first, he is more credible than the average plaintiff’s lawyer and, second, he sincerely believes everything he says.”

The testimony given by Ms. Day that sheds the most light on this matter is this: “when this family plays Hearts, drinks beer, and eats cheese curds and beef sticks, anything can happen.”

In summary, it is Mr. Day’s position that his date of birth is not only none of the business of his siblings or the State of Tennessee, but that establishing it in a court of law is disruptive of his affirmative efforts to ignore it, which he adamantly argues he had not only the right but the duty to do. Indeed, he argues that this entire proceeding is detrimental to his efforts to live in the future and, in his words, “squeeze every ounce of juice out of life’s lemon,” (Appellant’s Brief, p. 44) unhampered by traditional notions of aging in the United States. In summary, Mr. Day argues that this entire proceeding is a “frivolous intrusion on [his] life” (Appellant’s Brief) and should be dismissed.

After a de novo review of the evidence, the Court affirms the decision of the trial court: Mr. Day was born on September 21, 1956, in Madison, Wisconsin.

That said, Mr. Day may choose to ignore this conclusion – that is his right. And, if he can ignore it, the Court urges him to do so.

Indeed, it is the unanimous opinion of this court that each of us should be encouraged to fully embrace the opinions of Mr. Keith, the most talented expert to ever provide guidance on aging to the courts and citizens of Tennessee. And the world.

Don’t let the old man in.

Court costs are taxed against Mr. Day’s siblings – Thomas Day, James Day, Michael Day, Jeffrey Day, and Kathryn Tremelling – for which execution may issue, if necessary.

SO ORDERED this 1st day of September 2026.

PER CURIAM

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