### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 9, 2000 Se ssion AUDREY J. O

WEN v. WILLIAM

C. MARTIN,

III Appeal from the Chancery Court for Davidson County No. 98-374-III Ellen Hobbs Lyle, Chancellor

No. M1999-02305-COA-R3-CV - Filed December 13, 2000

The trial court found that a mother and her adult sonhad both breached an oral contract whereby the son agreed to pay off t he mortgage on his mother’s home and to permit her to remain there for the rest of her life, and

the mother agre

ed to give the son

her equity i

n the home upon her

death, and to allow him to use a garage apartment in the home until that time. We reverse the trial court’s finding that there wa s an enforceable contract between the parties, but we impress a resulting trust on the son’s interest in the home, which inures to his mother’s benefit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Reversed in Par

t; Affirmed in Pa

rt; and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM B. C AIN an d P ATRICIA J. C OTTRELL , JJ., joined.
B. Lynn Morton, Clarksville, Tennessee, and Branc h H. Henard, Nashville, Tennessee, for the appel lant, Will iam C. Marti n, III. R. Price Nimmo and Rabin P. Nimmo, Nashville, Tennessee, for the appellee, Audrey J. Owen. OPINION
I.
In 1976, Audrey Owen and her hus ban d Roy purchased a three-bedroom, two-bathroom homeat 2800 Noonan Drivein Davidson County. They eventually paid off their mortgage. In 1989, they borr owed over $6 0,000 against the value of the house. Ms. Owen used $30,000 of the loan proceeds to purchase a square dance apparel business knows as the Flutter Wheel. Shortly thereafter, Roy Owen stopped contributing financially, a nd he eventually left the marital home.
The Flutter Wheel did not prove to be a profitable business. Ms. Owen developed he art problems, and she found her self physic

ally unable

to attend square dances to sell her products. As her finan cial co ndition w orsened, Ms . Owen stop ped paying the pr operty taxes a nd mortgage-2-

payments on her home. In 1992, the mortga ge-holder thre

atened to forec

lose on the proper

ty if pastdue payments were not made. Ms. Owen decided to sell the proper ty, and she and Roy signed a contract to have it auctioned off. She asked to be released fr

om the contract a

fter one of her s

ons, William Martin, offe

red to help her wi

th the mortgage

payments. Mr. Martin had mov ed to Cincinna ti in 1988, but he ofte n came to Nashville

to exercise weekend vi sitati on with his two young sons, who lived in the area with his ex-wife. When he returned, William Martin

sometimes stay

ed with his childre

n in a motel, sometime

s with friends,

and sometimes in his mother’s house. According to Mr. Martin, it was difficult for him and his children to stay in his moth

er’s home becau

se of her diffic

ult and demanding

personality . Mr. Ma

rt in was exploring the possibility of purchasing a condominium in Nashville for the purpose of visitation, when he learned of his mother’s dilemma. Mr. Martin abando

ned his plan to buy

the condominium,

and he agreed

to helphis mother withthe payment

s on her home, in th

e expectation that while helping her he could also create a private and comfortable

space for himsel

f and his children. He planned to improve and furnish an apartment in the Noonan Drive home that had been carved from a two-car gara ge and an adjoining bathroom and laun

dry room. After ascertaining t

hat Ms. Owen’s equity

in the house

comfortably exceeded the obligation on the mortgage, Mr. Martin allowed the hometo go into foreclosure, and on January 12, 1993, Mr. Martin purchased it fro

m t he mortgage holder at a foreclosure sale. Mr. Martin paid off the back taxes, made a $16,000 down payment against the purc

hase price of $62,088,

and financed the

rest through a new mortgage.
He allowed his mother

to continue living

in the home as he mad e the mortgag e payments, bu t she resist

ed his attempts to create a habitable space for himself and his children. Despite her supposedly

frail physical condition, she somehow managed to move desks, a tanning bed, a tr

eadmill andsurplus furniture

into the apartmen

t while Mr. Martin w

as away in Ci

n cinna ti. She kept her dogs, who were not house-trained, in the laundry room. She also stored the Flutter Wheel inventory of shoes, blouses,

shirts, skirts and petticoats in the apartment, until she agreed to let Mr. Martin sell it, so he could financesome needed improvements to the home. He realized $3,000 by selling the inventory to a liquidator. By 1997, Mr. Martin understoodthat the space-sharing arrangement would never work, and he asked his mother to

begin making th

e monthly pay

ments on the mortgage. She refused, and after a heated confrontation with his mother and his brother, he sent her a letter giving her the option of moving into the garage apartment while paying $250 a month rent, and le tting him rent out th

e rest of the house, or vacating the house so he could sell it. She did not respond. II. P ROCEEDINGS IN THE T RIAL C OURTS On January 21, 1 998, Mr. Martin file d a detainer war

rant against

his mother in the Davidson County General Sessions Court. Ms. Owen responded on February 6, 1998 , by filing a complaint-3-

in Chancery C

ourt, in which she asked the court to issue a Temporary Restraining Order to prevent Mr. Mar tin from disturbing her possession of the property. She also asked the court to dec lare a constructive or resulting trust on the property in her favor, or in the alternative, to o

rder it sold, with her to receive all the equity plus over $23,000 for the value of the Flutter Wheel inventory. On February

27, 1998, the gen

eral sessi ons cou rt awarded Mr. Martin possession of the home. Ms. Owen appealed from that decision to the cir

cuit court. The c

ircuit court subse

quently granted Ms. Owen’s motion to transfer the case to chancery

court, where it w

as consolidated w

ith the action pending the re. The trial of the case began on August 2, 1999. After hearing testimony from Ms. Owen, Mr. Martin, Mr. Martin’s brother and five other witnesses, thetrial court found that the parties had entered into an enforceable oral contract, which both had breac hed. The court awarded Mr. Martin possession of the house, and ordered Ms. Owen to move out on or before Septe

mber 15, 1999. Mr. M

artin was als o or dere d to pay a money judgment of $38,911 to Ms. Owen. Three thousand dollars of that judgment represented the a mount that Mr. Marti n realizedfrom

the sale of the square dance inventory, and $35,911 repre sented her equity in the house, calculated

as the difference between the appraised value of the house in 1993, and the amount Mr. Martin paid for the house following foreclosure. On November 17, 1999, the trial court denied Mr. Martin’s Motion to Alter or Amend the Judgment. This appeal followed. III. O RAL C ONTRACT A . A M EETING OF THE M INDS ?
We may find the actions of a son who evicts his mother from a home shelived in for more than twenty-one

years to be deplorable, but the responsibility for this unfortunate turn of events does notentirely rest upon Mr. Martin’s shoulders. If Ms. Owen ha d been willing to share the house on Noonan Drive with her so n and her grandchildren, in a manner consistent with their needs, she would probably sti

ll be living there . In any

case, our job is n

ot to intervene in a complex family situation in order to compel human beings to behave better, but merely to review the actions of

the trial court to determine if it has applied the law correctly. The court found that the parties had formed an enfor ceable oral contract, which both had breached. Because of disc repancies betw

een the parties’ respective acc ounts of the nature of their agreement,

the court had to pie

ce together po

rtions o f their testimony and to add at least one provision of its own d

evising in order

to arrive at the te

rms of the purport

ed contract. According to the court, Mr. Ma rtin agreed to

permit his mother

to remain in the home during her lifetime, “that

she would have, in essence, a life estate,” and that he would pay off the mortgage, andnot allow the home to go into foreclos

ure. Ms. Owen pur

portedly agreed to giv

e up the title

and equity in the home to Mr. Martin, to allow him to remodel the garage apartment for visitation with his children, and to c

ontribute her Flutter Wheel inventory to the payof f on the home, as a quid pro quo for the life estate.-4-

While such an agreement might have given Ms. Owen and Mr. Martin an equitable way

to share their resource

s in order to meet their resp ective needs, the

testimony of b

oth parties is inconsistentwith the terms of the contract described by the trial court. Ms. Owen denied that she agreed to let her so

n have excl usive use of the garage apartment. Instead, she testified that Mr. Martin simply promised to pay off the mortgage and allow her to live in the house, and that she in return, promised to give him the inventory of the Flutter Wheel and her equity in the home upon her death. Mr. Martin denied that the equity in the home or the F lutter Wheel inventory were ever discussed or included in the deal. Neither party testified that the question of foreclosure formed any part of their agreement.
It is an axiom of contract law that while it is within the province of the court to interpret or construe a contract entered into by the parties before it, the court has no right to make a new contract for parties that they did not make for themselves. CentralAdjustment Bureau v. Ingram , 678 S.W.2d 28 (Tenn. 1984) ; Bob Pearsall Moto rs I nc., v. Regal Chrysler-Plymouth, Inc ., 521 S.W.2d 578 (Tenn. 1975); Bank of Maryville v. Topping , 393 S.W.2d 280 (Tenn. 1965); Petty v. Sloan , 277 S.W.2d 355 (Tenn. 1955).
An oral contract ma

y be enfor ced (unless it

is of a type prohibited by law), but only if it can be shown that there was a meeting of the minds, and that both parties have mutually assented to its terms. Castelli v. Lien , 910 S.W.2 d 420 (Te nn. Ct. App. 1995); Computer Shoppe v. State , 780 S.W.2d 729 (Tenn. Ct. App. 1989). In the p resent case, the

re is no showing that the parties’ minds ever met on the terms of the purported contract, or that they gave their mutual assen t to the a greement

described by

the court. We have

no doubt that the tri

al court was well

-inte ntioned i n declaring the parties to have reached the agreement described above, but it exceeded its powe

rs in trying to c

reate a contra

ct for the partie

s that they di

d not create for

themselves.

B . T HE S TATUTE OF F RAUDS Even if we wer e to conclude, however, that the minds of the parties met on the contract described by the court, such a contract would still be unenforceable, because it was not evidenced by a signed memora

ndum, as required

by the Statute

of Frauds. The s

ta t ute is a law of ven

erable origins which is found in

our legal code at Tenn. Code. Ann. § 29-2-101. The relevant portions of the statute read, No action shall be

brought:

. . . (4) Upon any

contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a long er term than one (1) year;

. . . unless the promise or agreement, upon which such action shall be brought, or some memorandum

or note thereof, shall be in writing, and s igned by the party to be char ged t here wit h, o r so me o the r per son law ful ly au tho riz ed b y suc h pa rty.-5-

The prohibition agai

nst enforcing o

ral contr ac ts for the “sale of lands, tenements or hereditaments”

actually e xtends to many types of transactions involving land, including mortgages, Lambert v. Home Federal Savings & Loan Ass’n , 481 S.W.2d 770 (Tenn. 1972), and options to sell real pro pert y, GRW Enterprises v. Davis, 797 S.W.2d 606 (Tenn. Ct. App. 1990). More relevant for our purposes, a life estate in land cann ot b e created, reserved, relinquished, conveye d or sold by parol. Webb v. Shultz

, 198 S.W.2d 333 (Tenn. 1946). The trial court

attempted to circumvent the Statute of Frauds by concluding that the contract was enforceable b

ecause it had been partia

lly performed. I

t appears to us, ho

wever, that Mr. M

artin was the only party who performed a ny part of the supposed agreement, and he is not the one who is seeking to enforce the pu rported contrac

t. In any case, it has long

been the rule in th

is state th at partial performance w ill not pr event the application of the Statute of Frauds to an agreement involving interests in real estate. Knight v. Knight , 436 S.W.2d 289 (Tenn. 1962); Eslick v. Friedman , 235 S.W.2d 808 (Tenn. 1951); Goodloe v. Goodloe , 92 S.W. 767 (Tenn. 1905). IV. A R ESULTING T RUST In order to support its theory of contract, the trial court foundthat Mr. Martin had promised notto allow the house to go into foreclosure. As we noted above, there is absolutely no testimony in the record to support such a conclusion. We do not impute any ill motive to Mr. Martin’s decision to buy the house at foreclosure rather than making payments

on Ms. Owen’s current mortgage, as she assumed he would do. We believe rathe r that he wanted to

make sure that he

would ultimately acquire a clear title to the house, rather than one encumbered by the marital interest of Ms. Owe n’s est rang ed h usb and , Ro y. I n acquir ing clear leg

al title to the home,

however, Mr. Mar

tin did not thereby

erase Ms. Ow en’ s equitable interest in the property. That interest can be protected by the use of a resulting trust. A resulting trust arises from the expressed intent of the parties. It can be declared by the court in situations whe re the acts or expressions of the parties indicate that a relationship of trust arises from their transaction, and the impression of a trust upon the prope

rty they have been deali

ng with fulfills the intent they have expressed. A resultin g trust may be pro ven by parol evi dence, thou gh proof of a parol trust must meet a higher standard than a mere preponderance of the evidence. See generally , 72 Am.Jur.2d Trusts § 163 (1992).
In the present case, Mr. Martin acknowledged that he promised his mother that he would

help her keep her home, a

nd that he would dea

l with the mortgage

e, who was threa

tening to forec

loseif she did not pay

the mortgage arrearage. For her part, Ms. Owen relinquished control of that portion of her financial affairs to her son, in the belief that he would take care of her housing needs. The creation of wha

t appears to be a c

onfidential r

elationship

between the parties, and a promise by one to take care of the housing needs of the other ( in this res pect, t heir testimony is consistent)

creates an appropriate situation for the imposition of a resulting trust: “Resulting trusts are those which arise where the legal estate is disposed of, or acquired, without bad faith, and under such circumstances that Equity infers or assumes that

the beneficial in

terest in said esta

te is not to-6-

go with the legal title,” R oach v. Renfro , 989 S.W.2d 335, 340 (Tenn. Ct. App. 1998), quoting Gibson’s Suits in Chancery § 382 (6th Ed. 1982).
It thus appears to us that Mr. Martin ac qu ired the equity in the house on Noonan Drive subject to the benefici al interest of Ms. Owen, and that the equity must inure to her benefit. The record indicates that Ms. Owen has already moved from the Noonan Drive home, so Mr. Martin’s obligation must be directed towards meeting the expenses at her current residence.
In ord er to accomplish the purpose of the trust (providing shelter to Ms. Owen from the p roceeds of her interest in her former residence), we find that Mr. Martin must make mon thl y payments to Ms. Owen in an amo

unt measured by

th e rental val ue of the house on Noonan Drive withoutthe garage apartment. Mr. Martin has already testified that the house,if undivided, could rent for $750 or $ 800 per mont h, but we have seen no testimony as to how much less it would be likely to bring after be ing divided. We remand this case to the tri

al court for fur

ther proof, to determine the co

rrect amount.

V. T HE F LUTTER W HEEL I NVENTORY Mr. Martin sold the squa re dance invent

o ry (whi ch from his point of view might more appropriately

be called “the Clutter Wheel”) partly as a service to his mother , and part ly to creat

e someroom in the garage apartment. He has asserted no claim upon the proceeds.

While Ms. Owen claimedthat the inventory was worth what it cost her to acquire it, $23,000, thereis no evidence in the record to indicate that sale of the assorted blouses, skirts, petticoats, shoes, shirts, and other square dance p arapherna lia could have pro duced a great

er return than Mr

. Martin was able t

o sell themfor. We therefore affirm that part of the trial court’s judgment that awarded Ms. Owen $3,000 for her interest in the Flutter Wheel. VI. The judgment of the trial court is reversed in part and affirmed in p

art. Remand this ca

use to the Chancery Court of

Davidson County

for further proceedings consistent with this opinion. Tax the costs on appeal equally between the appellant and appellee.

_________________________________________ BENH. CANTR E LL, PRESI DING JUDGE, M. S.