1 Oral argumen t was h eard in t his ca se on October 14, 2003, i n Morristown a s part of the Court ’s C.A .S .E. ( C ourt of Ap peals A ffecti ng S tuden t E duc ation) p roje ct.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE October 14, 2003 Se ssion RENA THOMPSON v. CHARLES HENSLEY, ET AL 

### . Appeal from the Chancery Court for Monroe County No. 13632 Jerri S. Bryant, Chancellor FILED NOVEMBER 12, 2003

No. E2003-00456-COA-R3-CV

Rena Thompson ( “Plaintif

f”) file d this laws uit claiming her g randson, Charle s He ns le y, a nd his wife, KarenHensley (c ollectively “De fendants”), breached an

oral contract. Specific ally , Plaintiff claims she conveyed her house and real pr opert y to Defend ants i n exc hange for their oral promise to take
care of her and allow her to remain living in the house with them . Plaint iff suffered a stroke and went to live with her son, Perrian Hensley (“Plaintiff’s son” or “her son”). After living with her son for approximately one y

ear, Plaintiff wanted to return to her house. When she was n ot allowe d to return to her house, Plaintiff sued Defendants for specific pe rformance. The Trial Court found there
was no co ntract. Plaintiff appeals . We affir

m. 1

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Chancery

Court Affir

med; C ase Rem

anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and W IL LI AM H. I NMAN , S R

. J., joined.

J. Lewis Kinnard, Madisonville, Tennessee, for the A ppellant Rena Thompson.

Pe te r A ll im an , M ad is on vi ll e, Te nn es se e, fo r t he Ap pe ll ee s C ha rl es He ns le y an d K ar en He ns le y.-2- OPINION Background

This lawsuit in

volves a claim forspecific

perfor mance of an alleg ed oral c ontract

. Plaintiff’s complain

t claims she deede d her hou se and sur roundin g propert

y to Defend ants in exchang e for the

ir agr eement to take care of her and

to allow he

r to contin

ue resid ing in the house withthem. In their answer, De fendants denied making any such contractua l agree

ment with Plaintiff. When Plaintiff was not allowed to return to her house after suffering a stroke, she sued for specific performance of the a lleged oral contract.

Plaintiff’s son was the f

irst witne ss at tria

l and testi fied tha

t he curr ently resides in Tellico Plains on property which a lso was deeded to him by Plaintiff. Plaintiff’s son testified that Plaintiff and her husband, Plaintiff’s son’s stepfather, moved to Tennessee in 1978 and built a three bedroom house on th

e proper ty c urrently at issue. Plaintiff continued to live in this house after her husband passed a

way in 1981. Plaintiff originally owne d approximately fifty acres of land. Plaintiff had discussions with her

son about his moving to East Tennessee so he could assist her with keeping up the land, wh ich he eventually did. In 1997, Plaintiff deeded a tract of land to her son and a different tract to Defendants, who by that time also had m ov ed to Tennessee. Plaintiff retained possession of her house and the surrounding real pr operty. Plaintiff’s son

retired and moved

onto the la nd wh ich Plainti ff had deeded to him, and he e ventuall y bu ilt a house

there. Accordin g to Plaintiff’s son, when

Defend ants firs t moved to Tenness ee from

Ohio, the y liv ed with

Plaintiff for two months. Defendants then moved into a mobile home located on Plaintiff’s land.

Plaintiff’s son testif

ied Plainti ff has ha

d four str okes and lived with

him for a period of time after each of

the strokes. After her third stroke, Plaintiff lived with her son for a period of t ime while rehabilitating and then began to express a de sire to return to her house. P laintif f eventua lly returned to her house. After her four th stroke, Plaintiff once again lived with her son after being released from the hospital. Plaintiff lived with her son for approximately one y ear and then began to ask abo

ut return ing to he r house. P

laintiff ’s son told

her that he did not t

hink it waswise for her to return to her house due to her medical condition. By that time, Plaintiff had executed a third deed whichconveye d the remaining land and her house to Defe ndants. Plaintiff’s son knew that Plaintiff had deeded her remaining prope rty to Defe

ndants. Plaintiff told her son that she was going to sign the house o ver to De fendant s and they

were g oing to mo ve in

with her. Ho wever, Plaintiff never mentioned

any details surrounding

why she deed ed her ho use and r emaining propert y to Defend ants. Pla

intiff’s son was no t aware of any agree ment betw een Plain

tiff and D efenda

nts regarding Plaintiff’s being able to live in the house or her long ter m care. Plaintiff never

mentioned any allege d agre ement to her son unt il after he deter mined tha t Plaintiff could not return to her

house. Plaintiff had been living with her son for approximately one year w hen he made this determination. Plaintiff’s son testified that both Plaintiff and his mother-in-law reside w ith him and his wife. Alth ough Plaintiff’s son does not charg e Plaintif

f or his mother-in-law any rent, they ea

ch “donate” $250.00 per month.-3- The next witness at trial was Plaintiff. Plaintiff testified she was eighty- three ye ars old and has one son and one grandson. Plaintiff testified Defenda nt Karen Hensley

had expressed
a concern about living in the trailer and that she wa s scared when it stormed. According to Plaintiff, KarenHensley

inquired about whe

ther her family could move in with Plaintiff. Plaintiff agreed that they could. After Defendants moved into Plaintiff’s house, Plaintiff told Defendants they

could have her house and land “after I’ m gone.” Plaintiff testified she has had two strokes. The most rece nt ti me she was hospitalized was due to complications from medicine, not another stroke. When Plaintiff’s son was ta

king Plaintiff home

from the hospital, he suggested Plaintiff stay with him for a few da ys, which she

agreed to do. According to Plaintiff, “I’ve bee n there ever since.” Plaintiff testified she and her husband built the house in 1978, and her husband passed awa y in 1981. When Defend ants came to live with Plaintiff, they did not pay her any mone

y, “not one dime.” Plaintiff also testifie d that whe

n Defen dants move d in , they ag reed to “take care of me a s long as I lived.” Plaintiff testified KarenHensley

told her “ I’ll

see to it pe

rsonally that you’re took c are of as long as I live.”

On cross-e xamination, Plaintiff

identifie d the deed and her si gnature where she conveye d propert

y to her son in 1997. How ever, w

hen shown

the deed where s he conve

ye d proper

ty to Defendants in 1997, Plaintiff claimed the signature on the deed looked like her signature, but she didnot think it actually was her signature. Plaintiff later testified she was not sure if it was her signature on this deed. Plaintiff admitted that during her deposition she testified that it definitely was nother signature. At trial , Pl aintiff stated she never convey ed any prope

rty to Defe

ndants, even thou gh her complaint states that she deeded two tracts of property , one of which inc luded her

house and surrounding propert

y, t o Defend ants. Plai ntiff spe cifically d enied at trial con vey ing her house to Defendants.

Portions of Karen Hensley ’s deposition were entered into evidence at trial. I n her deposition, Karen Hensley testified she never entered into any agreement with Plaintiff. According to Karen Hensley , Plaintiff called both Defendants on numerous occasions asking them to move

in withher because she could not move back into her

home unless someone was with her twenty -four hours a day.

Portions of Charle s Hensley ’s depositi on also wer e read into evide

nce. I n his deposition, Charles Hensley testified that

he and his wife originally agreed to move into Plaintiff’s house so Plaintif

f could r eturn hom

e. Ther eafter , Plainti ff once again was hospitalized. When Plaintiff was released from the hospital the last time, her doctor as we ll as Plaintiff’s son would not let her return to the house because she nee ded twenty-f our ho ur ca re . A cc or di ng to Ch ar le s H en sl ey, he and his wif

e are un able toprovide Plaintiff with the necessary

twenty-four hour

care because they
are both employed outside of the home. How ever, Pl aintiff’s son can provide the needed car e because he is retired. Charles Hensley testified it was never his understandi ng that he or his wife
were supposed to provide life time care forPlaintiff in return for Plaintiff’s deeding them her pr op er ty. Charles Hensley maintained both he and his wife never ha ve been in a position to provide this type of care

because they

are both employe d.2 Since this was a non-jury trial, Defendants s hould have moved for an involuntary dismiss al under Tenn. R. Civ.

P. 41.02, as opposed to moving f or a direc ted verdict

under Tenn. R. Civ. P. 50. For purposes of this ap pea l, we will tre at Def endant s’ moti on as a

moti on for

inv olun tar y di smis sal under Rule 41.02.
-4- After the above testimony was c oncluded, Defendants moved for a directed

verdict

. The Tria l Court dismi ssed Plain

tiff’s c laim, stat

ing as f ollows:

Parole evidenc e is inadmi ssa

b le to vary the de

ed. The plaintiff in th is cas e is at tempt ing to show t hat sh e ga ve th e deed in
e xcha nge for ser

vices to b e rende

red. I n order t o do that sh

e has to prove a meeting of the minds.

Fr aud, u ndue infl

uence o r any thing of that natu

re is specific ally

not prove d in this case.... This deed is not ag ainst public po li cy. It’s to give

the land to an only gr

andchild or the child of an only son ....

Plai ntiff claims that there has been a wrong a nd asked thi s Courtto fix [the wrong] in equity. However , plaintiff particip ated in th e wrong and forfeited her r ight to any re

lief since she co uld hav e protected herself by

placing any

specific restrictions on this deed and didnot do so. So even looking at those reasons along with the proof in this case, there was no outside agreement to take care of her, and the Court i s directing a ve rdict. 2

After the trial, Plaintiff filed a motion to al ter or amend the judgment or for a new trial. After

summarizing the proof that had been presented at trial, Plaintiff claimed the “fa cts and circumstances show all the nece s sities of an implied contract, and ... [this] rule should have been applied by the Court ....” The Trial Court denied the motion, and Plaintiff appeals claiming the Trial Court erred when it concluded there was no c ontract between the parties.

Discussion

When a motion to

dismiss is made atthe close of a plaintiff’s proof in a non-jury case, the trial court must impartially weig h the evidence as though it were making find ing s of fact and conclusions of law after pre sentation of all the evidence. See Tenn. R. Civ. P. 41.02(2). If a plain tiff's case has not been established by a preponderance of the evidenc e, then the case should be dismissed if, on the fa

cts found and the a pplicabl e law, the plaintiff has shown no right to relief. See City of Co lu mbi a v. C. F.W. Constr. Co. , 557 S.W.2d 734, 740 (Tenn. 1977); Atkins v. Kirkpatrick , 823 S.W.2d 547, 552 (Tenn. Ct. App. 1991). The standard of review of a trial court' s dec ision t o grant a Rule 41.02 involuntary dismissal is in accordanc e with Tenn. R. App. P. 13(d). Atkins , 823 S.W.2d at 552. As such, the factual findings of a trial c ourt a

re accorded a presumption of
correctness, and we will not overturn those factual findings unless the evidence prepondera tes-5-

agains t th em. Tenn . R. App. P. 1 3(d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001 ). Wit h respect to legal issues, our

review is conducted “under a pure de novo standard of review, according
no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

It is well established that a contract can be e xpress, implied, written, or oral, “but an enforce able contra ct must result from a meeting of the minds in mutual assent to terms, must be basedupon sufficient consideration, must be free from fraud or undue influence, not aga inst public policy and must be

sufficie ntly definite to be enforced.” Klosterman Development Corp. v. Outlaw Aircraft Sales, Inc. , 102 S.W.3d 621, 635 (Tenn. Ct. App. 2002). In the present case , the Trial Court had the a bility to assess the demeanor a nd credibility of those witnesses, including Plaintiff, wh o testified live at trial. The Trial Court was presented with conflicting ve rsions of whether there was
an oral agreement by

Defendants to allow Plaintiff to remain in her house and to provide he r ca re for the remainder of

her life in return for convey ance of the property . Defendants denied there was any such agreement. Plaintiff insists such an agreement was made, although her testimony was altogether inconsistent with her pleadings as to whether or not she actually conve

yed the prope

rty t o Defendants. “Unlike this Court, the trial court observed the manner and demeanor of th e witnesses and was in the best posi tion to ev aluate thei r credibili ty." Union Plant ers Na t'l Bank v. Island Mgmt. Auth., Inc ., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). A trial court's determinations regarding credibility are

accorded deference

by this Court. Id. ; Davis v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). "[A]ppellate courts will not re-evaluate a trial judge's assessment of witness credibility absent cle ar and convincing evidence to the cont rary." Wells v. Tennessee Bd. of Regents , 9 S.W.3d 779, 783 (Te nn. 1999). Accordingly , we conclude at the outset that the preponderance

of the evidence does not weight ag ainst the Trial Court’s conclusion that “there was
n o outside a

greem ent [by Defend ants] to tak

e care of [Plaintif

f] ....” Sinc e th ere wa s n o “agreement” by Defe

ndants to take careof Plaintiff, it necessarily f ollows that there was no mutual assent or meet ing of the minds regarding the terms of the alleged oral contract. As there was n o agreement

betwee n the par ties to the terms, the Trial Court correctly found there was no express oral contract in existence.

Tennessee recognizes “two distinct ty pes of imp lied cont

racts; na mely , contra

cts implied in fact and contracts implied in law, co mmonly

refer red to as quasi contracts.” Angus v. Ci ty of Jackson , 968 S.W.2d 804, 808 (Tenn. Ct. App. 1997)(qu oti ng Paschall's, Inc. v. Dozier , 219 Tenn. 45, 53-54, 407 S.W.2d 150, 154 (1966)). A contract implied in fact is “one that ‘arises under circumstances which show mutual intent or assent to contract.’” Givens v . Mullikin , 75 S.W.3d 383, 407 (Tenn. 2002) (quot ing Angus , 968 S.W.2d a t 808). Ho wever, in order for a co ntract im

plied in fact to be en forceable, i t must be supported by mutual assent, considera tion, and lawful purpose. Mullikin , 75 S.W.3d at 407. An express oral contract and a contract implied in fact are very similar withthe pri mary diffe

r ence be tween the m being t he manne r in which

the part ies manif est their assent. “I n an express contract, the parties assent to the terms of the contra ct by means of w o rds , writing s, or some other mode of expression.... In a c ontract implied in fact, the conduct of the parties and the surrounding circumstances show mutual assent to the terms of the contract.” River Park Hospital, Inc. v. BlueCross BlueShi eld o f Tennessee, Inc. , No. M2001-00288-COA-R3-CV,-6-

2002 Tenn. App. LEXI S 723, at*33 (Tenn. Ct. App. Oct. 11, 2002), appl. perm. appeal denied Feb. 18, 2003. Likewise, we find nothing in the r ecord before us that wo uld prepon derate against the Trial Court’s f

inding th at Defe

ndants did

not agree to take care

of Plaintiff, including “the conduct of the parties and the surrounding circumstance s.” Id. As such, there also was no contract implied in fact. See Mullik in , 75 S.W.3d at 407 (“an implied contract ‘must result from a meeting of the minds of the pa

rtie s in mutual assent to the terms, [and] must be based upon a sufficient consideration, free f

rom frau d or undue

influenc e, not ag ainst public policy and suff iciently definite to be enfo rced’") (quot ing Johnson v. Central Nat'l Ins. Co. , 210 Tenn. 24, 34-35, 356 S.W.2d 277, 281 (1962)).

Plaintiff

also arg ues that th

ere wa s a contrac t im plied in la

w. As obse

rved by this Court in Angus :

Contract s implied in law are created by law without

the assent of the party bound, on the basis that they are dictated by

reason and justice. Weathe rly v. American Agr. Chem. Co. , 16 Tenn. App. 613, 65 S.W.2d 592 (1933). A party seeking to recov er on an implied in law or qua si con tract theor y must pr ove th e foll owing:

A benefi t con ferred upon the defendant by the plaintiff, appreciationby the

defendant of such benefit, and acceptance of such benefit under such circumstances that it would b e inequita ble for him to r

etain the benefit without payment

of the value thereof. Angus , 968 S.W.2d at 808 (quot ing Paschall's, Inc. v. Dozier , 219 Tenn. 45, 57, 407 S.W.2d 150, 155 (1966)).

Ce rt ai nl y, Defend ants her ein were conferred a be

nefit by Plaintiff. We will assu me that the second element, i.e. appreciation by Defendants of

such benefit, likewise has been met. The question then becomeswhether it is inequitable under the circumstances for Defe ndants to retain the benefit withoutpayment of the va lue thereof. Angus , 968 S.W.2d at 808. At trial, Plaintiff denied
ever conveying

any propert y to Defendants. In her

complaint, however, Plaintiff claims she deeded her house to Defendants on May 11, 1999. Plaintiff never has alleged that the convey ance of the propert y to Defendants should be set aside because it was the re sult of fraud, undue influence, or the like. It is im

plicit in the Tri al Court’s opinion that it found there was a valid convey ance of the propert y at issue, as evidenced by the Trial Court’s comments that “[f]raud, undue influence or anything of that nature is specifically not proved in this case.... This de ed i s not aga inst public policy. I t’s to give the land to an only grandchild or the child of an only son ....”

To summarize: (1) there was a valid convey ance of the property to Defendants; (2) there was no express or implied in fact contract by Defe ndants to provide long term care to Plaintiff
or to allow her to remain in the house; (3) Plaintiff needs twenty-four hour care; (4) Defendants are-7-

notand never

have been in a position to provide that care; and (5) Plaintiff is residing with her son who can and does provide P laint iff the ne cessar y c are. I n light of the foregoing , we are

unable to conclude that unde

r these p articula

r circu mst a nces, it is inequitable for Defendants “to retain the benefit without payment of the va lue th ereof.” Angus , 968 S.W.2d at 808. Therefore, Plaintiff likewise has failed to establish an oral contract implied in law.
Conclusion

The judgment of the Trial Cour t is affirmed, and this cause is remanded to the Trial Courtfor further procee dings asare nec essary , if any, consistent with this Opinion, and for collection of the costs below. The costs on appeal are assessed against the Appellant Rena Thompson and her surety.

___________________________________ D. MICHAEL

SWINEY, JUDGE