IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 24, 2002 Session

GUY R. JENKINS, ET AL. v. DAN GIBBS

Appeal from the Chancery Court for Knox County

No. 142261-3 Sharon Bell, Chancellor

FILED SEPTEMBER 5, 2002 

No. E2001-01802-COA-R3-CV

After a dispute arose over the ownership of 1000 shares of stock in City Bonding Company (“City

Bonding”), Guy Jenkins and Aubrey Allen Jenkins (“Plaintiffs”) sued Dan Gibbs (“Defendant”)

seeking a determination as to how many shares of stock were owned by the various parties. Guy

Jenkins also claimed Gibbs unlawfully procured the breach of a contract Guy Jenkins had with City

Bonding. The Trial Court granted Gibbs summary judgment on the unlawful procurement of breach

of contract claim. After a trial on the remaining issues, the Trial Court determined Gibbs owned 490

shares of stock, Guy Jenkins owned 255 shares, and the remaining 255 shares were unissued. All

parties appealed the Trial Court’s determination with respect to ownership of the stock. Guy Jenkins

also appealed the granting of summary judgment on his claim against Gibbs for unlawful

procurement of breach of contract. We vacate the summary judgment granted to Gibbs and affirm

the judgment in all other respects.

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

Court Vacated in Part and Affirmed in Part; Case Remanded.

D. MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,J., and

JAMES CURWOOD WITT, JR., SP. J., joined.

James S. MacDonald, Knoxville, Tennessee, for the Appellants Guy R. Jenkins and Aubrey Allen

Jenkins.

John A. Lucas, Knoxville, Tennessee, for the Appellee Dan Gibbs.
1

There is a dispute as to whether Aubrey Allen Jenkins received any stock. Aubrey Allen Jenkins was a minor

at all relevant times and there is further dispute over whether any stock he may have received was effectively transferred.

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OPINION

Background

Plaintiffs filed this lawsuit seeking corporate records and other documents pertaining

to City Bonding which were in Gibbs’ control. Plaintiffs further claimed there was a dispute as to

the ownership of the 1000 shares of stock in City Bonding and sought a declaratory judgment asking

the Trial Court to declare the ownership interests of the respective parties. The Trial Court dismissed

the portion of the complaint seeking production of corporate records for failure to comply with

statutory requirements. An Amended Complaint was filed seeking essentially the same relief as well

as setting forth a cause of action against Gibbs based on Guy Jenkins’ claim that he had a contract

with City Bonding for compensation in the amount of $1,139.24 per month and this contractual

obligation was breached. Guy Jenkins claimed this was an unlawful procurement of breach of

contract by Gibbs in violation of Tenn. Code Ann. § 47-50-109, thereby entitling him to treble

damages. 

Gibbs filed a motion for summary judgment on the procurement of breach of contract

claim. Gibbs asserted that on June 8, 1999, City Bonding adopted a resolution terminating the

monthly payments it was making on behalf of Guy Jenkins. The parties submitted affidavits and

deposition testimony setting forth their version of the facts on this issue. The Trial Court granted

Gibb’s motion for summary judgment on the procurement of breach of contract claim, leaving for

trial the primary issue of the ownership interests of the respective parties in City Bonding.

At trial, the parties stipulated City Bonding was formed in 1982 and 1000 shares of

stock were issued at that time, of which Frank Harper received 600 shares. The remaining 400

shares were issued to Joe Jenkins or to Joe Jenkins and Aubrey Jenkins jointly.1 In January of 1984,

the stock certificates were turned in and the stock was reissued with Joe Jenkins receiving 490

shares, Guy Jenkins receiving 255 shares, and John Pollock receiving 255 shares. This is where any

agreement between the parties ends. 

Gibbs testified that in 1985, Guy Jenkins gave him 250 shares of stock in City

Bonding, although no stock certificate was ever given to Gibbs and there is no documentation

verifying this gift actually took place or that it was completed. Gibbs further claims he purchased

490 shares of stock from Joe Jenkins for $13,500.00 on January 3, 1986. Gibbs identified the

cancelled check dated January 3, 1986, for $13,500, and also identified a notation on the check

which stated “for four hundred and ninety shares of City Bonding Company.” Since purchasing the

stock, Gibbs has served as general manager of City Bonding taking care of the day-to-day operations.

He began making a salary of approximately eight hundred dollars per week sometime after this stock

purchase. After purchasing the 490 shares, Gibbs received advances on his salary from City Bonding

in order to pay off money he borrowed in order to purchase the stock. Gibbs claims Guy Jenkins was
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aware of this arrangement for paying off the money Gibbs borrowed. Gibbs never heard anyone

claim Aubrey Allen Jenkins owned any shares of stock, and he is not aware of any corporate records

reflecting any ownership interest on behalf of Aubrey Allen Jenkins. The first time Gibbs heard

anyone claim Aubrey Allen Jenkins owned any stock was in 1999, and he heard this from Guy

Jenkins’ attorney. 

Part of the day-to-day operations of City Bonding involved preparing semi-annual

financial statements on behalf of the shareholders and filing these statements and appearance bonds

with various courts in the counties in which City Bonding conducted business. Gibbs testified the

documents filed with the Knox County Criminal Court since 1986 show Guy Jenkins owning 750

shares of stock and Gibbs owning the remaining 250 shares. According to Gibbs, Guy Jenkins had

very little to do with the day-to-day operations of City Bonding. Gibbs stated when these financial

statements were first prepared, his ownership interest was limited to the 250 shares that had been

given to him and they were accurate. These same figures were just copied and used on later financial

statements even though he had purchased the additional 490 shares. 

Gibbs testified City Bonding paidapproximately $1,500 per month on a personal note

of Guy Jenkins. This payment continued to be made by City Bonding up until the time the present

lawsuit was filed. Gibbs stated in addition to the $1,500 per month, Guy Jenkins also received cash

at various times and City Bonding paid the majority of the payments on a Mercedes owned by Guy

Jenkins. None of the payments made to Guy Jenkins or to Gibbs were corporate stock dividends.

Throughout City Bonding’s history, the company compensated officers and employees by paying

some of their bank debts. 

Attorney Jerome Templeton (“Templeton”)testified bywayof deposition. Templeton

had nothing to do with the formation of City Bonding or the original issuance of stock. He became

involved with City Bonding when it was being acquired by Guy Jenkins. When asked if he had

occasion to informhimselfabout who owned how much stock, Templeton responded his recollection

was vague but after looking at his files he did have “something to do with that.” Templeton went

on to add he really did not have any independent recollection of most of the matters involved with

the corporation. During his initial representation of City Bonding, Templeton received a letter and

other information from Norman Williams (“Williams”), the attorney who represented City Bonding

at the time of incorporation. Based on the information contained in this letter, Templeton made

numerous handwritten notes at that time. There was a lengthy argument at trial over whether

Williams’ letter and Templeton’s handwritten notes based on the letter constituted hearsay.

Plaintiffs’ counsel argued it was a business record and fell within the applicable hearsay exception.

Defendants’ counsel disagreed for several reasons, one being Templeton’s handwritten notes were

made well after the events described in the letter took place (i.e., when the stock was originally

issued), and, therefore, were not made at or near the time of the event. Defendant’s counsel claimed

Templeton had no personal knowledge of the events described in Williams’ letter because he was

not even involved in the corporate matters at that time. The Trial Court concluded this evidence was

hearsay and did not constitute a business record.
2

 Other objections to certain testimony and the admissibility of exhibits were made on the same basis and were

likewise ruled inadmissible hearsay by the Trial Court for the reasons set forth above.

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Templeton also was questioned about notes he made at a meeting in January of 1986

when stock apparently was received by Guy Jenkins. Templeton stated the stock was either given

to Guy Jenkins or he paid for it. Templeton then added: “I don’t know about that. . . . I can’t recall

that, I don’t know that I knew at the time.” The Trial Court again ruled this was inadmissible

hearsay, and that it did not qualify under the past recollection recorded exception because Templeton

never knew about the subject matter to begin with.2

 Templeton testified the stock composition in

1984 was Joe Jenkins 490 shares, Guy Jenkins 255 shares, and John Pollock 255 shares. Templeton

later attempted to testify regarding his handwritten notes setting forth the stock composition in later

years. When asked where these figures came from or why he was writing them down, Templeton

responded “I do not know.” He went on to add he did not know whether “it’s something that was

done or whether it was something that I thought should be done.” Templeton then pointed out he

had no independent recollection at all on that matter. Some of this testimony was likewise excluded.

Guy Jenkins testified it was after this lawsuit was filed before he first learned Gibbs

claimed to have purchased 490 shares of stock from Joe Jenkins. Guy Jenkins denied ever giving

approval for Gibbs to use borrowed corporate funds to repay a personal loan he made in order to

purchase the stock. Guy Jenkins was approached by his father to oversee City Bonding, and agreed

to assist only if he (i.e. Guy Jenkins) had “full control.” According to Guy Jenkins, when the stock

was initially issued Frank Harper had 600 shares, and Joe and Aubrey Allen Jenkins jointly

controlled the other 400 shares. In 1984, all of the stock was reissued with 255 shares being owned

by Guy Jenkins, 255 shares being owned by John Pollock, and 490 shares being owned by Joe

Jenkins. John Pollock then turned in his stock and the 255 shares became treasury shares. Guy

Jenkins did not know his brother, Joe Jenkins, sold his 490 shares to Gibbs and has no personal

knowledge about that alleged transaction. According to Guy Jenkins, in January of 1986, all the

stock owners essentially turned in their stock and it was once again reissued with the new stock

composition being: Guy Jenkins owning 550 shares, Gibbs owning 250 shares, and Aubrey Allen

Jenkins owning 200 shares. Guy Jenkins testified he gave Gibbs these 250 shares of stock. 

The deposition of Aubrey Allen Jenkins was offered into evidence at trial. Aubrey

Allen Jenkins was 19 years old at the time of his deposition. He first learned he supposedly was a

stockholder in City Bonding from his uncle, Guy Jenkins. He learned this about a year before his

deposition took place “but that was scratchy”. He heard more about his supposed stock ownership

in the two months prior to his deposition. Aubrey Allen Jenkins testified he had no personal

knowledge about whether or not he actually owned any stock in City Bonding, and he has never seen

a stock certificate evidencing his ownership of stock. 

Joe Jenkins also testified via deposition. Joe Jenkins is the brother of Guy Jenkins

and father of Aubrey Allen Jenkins. According to Joe Jenkins, in 1984 he owned 490 shares of stock,

Guy Jenkins owned 255 shares, and John Pollock owned the remaining 255 shares. Joe Jenkins does

not recall his son Aubrey ever being a shareholder in City Bonding. Joe Jenkins stated he never put
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any stock in his son’s name and never saw a certificate of stock showing Aubrey as an owner. Joe

Jenkins claimed the first time he ever heard anything about his son Aubrey owning any stock was

“[a]fter all this lawsuit started.” Joe Jenkins acknowledged he sold his 490 shares of stock to Dan

Gibbs for $13,500.00. 

John Walker (“Walker”) was called as an expert witness. Walker is a licensed

attorney in Knoxville. Walker testified to his experience as an attorney handling corporate law

matters. Walker testified the corporate records of City Bonding were “substantially incomplete,” but

he reviewed what records were available including the corporate minute book, stock certificates, and

other records. He also reviewed the depositions of Gibbs and the various members of the Jenkins

family. Walker testified the reconstructed stock transfer ledger prepared by counsel for Gibbs

showing what Gibbs believed to be the stock ownership was reconstructed in a manner consistent

with generally accepted corporate law principles and procedures. Walker also stated he questioned

whether Aubrey Allen Jenkins ever had any interest in the stock. Walker based this conclusion

primarily upon the depositions of Aubrey Allen Jenkins and Joe Jenkins. Walker went on to add

even if Aubrey Allen Jenkins did own stock, it was conveyed away by his father Joe Jenkins who

had “full power and right to transfer the interest of his son in those shares.” 

After a trial, the Trial Court issued its opinion as to the respective ownership interests

of the parties. After hearing further argument, the Trial Court issued a Supplemental Opinion

revising some of its initial findings. In the Supplemental Opinion, the Trial Court found as follows:

(1) Phase one represents the ownership of six hundred (600)

shares by Mr. Harper, and four hundred shares ownership between

Joe Jenkins and Aubrey Allen Jenkins as of September, 1983.

(2) Phase two is the reissue to Joe Jenkins of four hundred

ninety (490) shares, to Guy Jenkins of two hundred, fifty-five (255)

shares, and to John Pollock of two hundred, fifty-five (255) shares in

January, 1984. 

(3) Respectfully, the Court cannot find by a preponderance of

the evidence that any of the issuance of shares in phase two came

from any particular stock, just that it came from the pool of stock

from phase one. 

(4) The Court cannot, despite its earlier finding, determine

that the shares of the then minor, Aubrey Allen Jenkins, were

conveyed away from him without authority, and cannot place a

constructive trust on the shares in phase two. 

 The reasons for this finding are that the theory of

constructive trust was not plead nor argued, and even if it had been,
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there is no evidence that the defendant had any knowledge of an

adverse claim. 

(5) Joe Jenkins sold his four hundred, ninety (490) shares to

the defendant in January, 1986, thereby vesting ownership in said

stock in defendant. 

(6) As to the two hundred, fifty shares purportedly transferred

to the defendant by Guy Jenkins in approximately January, 1986, the

Court finds that the transfer was intended as a gift, but that the gift

failed for want of delivery, so that Guy Jenkins remained owner of

those shares. 

(7) The remaining two hundred, fifty-five shares signed over

to the corporation by John Pollock have not been reissued, so that

they are found to be unissued treasury shares. 

Plaintiffs and Gibbs appeal the Trial Court’s determination with regard to the

respective ownership interests of the parties in City Bonding. Plaintiffs also appeal the exclusion

of various portions of Templeton’s deposition. Plaintiff Guy Jenkins appeals the granting of

summary judgment to Gibbs on his procurement of breach of contract claim. 

Discussion

First, we will discuss Guy Jenkins’ appeal of the granting of summary judgment on

his claim against Gibbs for procurement of breach of contract. The standard for review of a motion

for summary judgment is set forth in Staples v. CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

The standards governing an appellate court’s review of a

motion for summary judgment are well settled. Since our inquiry

involves purely a question of law, no presumption of correctness

attaches to the lower court’s judgment, and our task is confined to

reviewing the record to determine whether the requirements of Tenn.

R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,

50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816

S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure

56.04 provides that summaryjudgment is appropriate where: (1) there

is no genuine issue with regard to the material facts relevant to the

claim or defense contained in the motion, see Byrd v. Hall, 847

S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled

to a judgment as a matter of law on the undisputed facts. See

Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.

1993). The moving party has the burden of proving that its motion
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satisfies these requirements. See Downen v. Allstate Ins. Co., 811

S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary

judgment makes a properly supported motion, the burden shifts to the

nonmoving party to set forth specific facts establishing the existence

of disputed, material facts which must be resolved by the trier of fact.

See Byrd v. Hall, 847 S.W.2d at 215.

To properly support its motion, the moving party must either

affirmatively negate an essential element of the non-moving party’s

claim or conclusively establish an affirmative defense. See McCarley

v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);

Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving

party fails to negate a claimed basis for the suit, the non-moving

party’s burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary

judgment must fail. See McCarley v. West Quality Food Serv., 960

S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving

party successfully negates a claimed basis for the action, the nonmoving party may not simply rest upon the pleadings, but must offer

proof to establish the existence of the essential elements of the claim.

The standards governing the assessment of evidence in the

summary judgment context are also well established. Courts must

view the evidence in the light most favorable to the nonmoving party

and must also draw all reasonable inferences in the nonmoving

party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.

Hall, 847 S.W.2d at 210-11. Courts should grant a summary

judgment only when both the facts and the inferences to be drawn

from the facts permit a reasonable person to reach only one

conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.

1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be

decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther

v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

Gibbs denied the existence of any contract with Guy Jenkins entitling him to monthly

payments. In his affidavit, Gibbs stated: “After Mr. Jenkins filed this suit against me, I consulted

with my counsel regarding whether the Company was obligated to continue making monthly loan

payments ... on behalf of Mr. Jenkins.” (emphasis added). Based on this discussion, Gibbs

concluded Guy Jenkins would only be entitled to receive dividends if any were paid. Since no

dividends were ever paid, he could discontinue the payments. He also was informed corporate

employees could receive salaries, but since Guy Jenkins was not an employee, he was not entitled
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to the payments as a salary either. Therefore, “the Company elected [pursuant to a corporate

resolution] to terminate the monthly payments to Home Federal Bank that the Company had been

making on Mr. Jenkins’ behalf.” According to Gibbs, he was acting on behalf of the corporation

when terminating these payments, and he is, therefore, entitled to immunity.

Guy Jenkins testified he has received $1,000.00 per month “in lieu of salary, director

fees, consultant fees, committee fees, dividends or other forms of corporate remuneration” since

early 1986. This amount was later increased to $1,500.00 per month. While Guy Jenkins

acknowledged there was no written contract, he claimed “at all times there existed an oral contract

between himself and the corporation ... said contract between the Affiant and the corporation was

negotiated directly with Gibbs, ... Gibbs confirmed this contract between Guy R. Jenkins and CBI

directly to a Mr. Wes Goddard at Home Federal Bank some two to three years ago....” According

to Guy Jenkins, he received these payments until Gibbs unilaterally, arbitrarily, and maliciously

terminated them in June of 1999. 

Although the Trial Court granted summary judgment on the claim for procurement

of breach of contract, the Trial Court, unfortunately, did not set forth its reason as to why summary

judgment was appropriate. Thus, we do not know whether the Trial Court: (1) determined there was

no contract between City Bonding and Guy Jenkins; (2) determined there was a contract but there

was no breach; or (3) determined there was a contract and a breach, but Gibbs negated an essential

element of the claim or was immune. 

We believe the affidavits of Guy Jenkins and Gibbs create a genuine issue of material

fact regarding whether there was a contract between City Bonding and Guy Jenkins for the payment

of $1,500.00 per month. Guy Jenkins testified he was entitled to these payments not just because

of his ownership interest in City Bonding but also because he was liable for several million dollars

on various bonds. Gibbs argues on appeal that these two situations do not, by themselves, legally

entitle Guy Jenkins to monthly payments, and we agree. This, however, does not mean an oral

contract was not voluntarily entered into to compensate him for his ownership or potential liability

on the bonds. In a nutshell, we believe the testimony set forth above creates a genuine issue of

material fact regarding whether there was an oral contract between Guy Jenkins and City Bonding.

Even if there was a contract, Gibbs still would be entitled to summary judgment if

the undisputed material facts demonstrate that there was no breach, or that Gibbs negated an essential

element of the claim, or that Gibbs has a defense to the claim, such as his claim of immunity. On

appeal, we cannot determine if there was a breach of contract without knowing what the terms of that

contract, if one exists, are, a factual determination not made by the Trial Court. Therefore, we

cannot affirm the granting of summary judgment unless the undisputed material facts demonstrate

that Gibbs negated an essential element of the procurement of breach of contract claim or established

he is entitled to immunity. 

Gibbs bases his claim to immunity on language found in Forrester v. Stockstill, 869

S.W.2d 328 (Tenn. 1994). In Forrester, our Supreme Court quoted with approval the following
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from Thomas G. Fischer, Annotation, Liability of Corporate Director, Officer, or Employee for

Tortious Interference with Corporation's Contract with Another, 72 A.L.R.4th 492, 501 (1989):

Some courts have recognized that generally a corporate director,

officer, or employee is not liable for tortiously interfering with a

corporate contract, because he is considered a party to the contract, as

long as he is acting to serve the corporate interests, or unless his

activity involves individual separate tortious acts. Courts have also

recognized, however, that a corporate director, officer, or employee

may be liable for tortiously interfering with a corporate contract if he

is acting outside the scope of his authority, acting with malice, or

acting to serve his own interests.

Forrester, 869 S.W.2d at 333. The Forrester Court noted a claim for wrongful interference with an

employment contract by a third person was actionable only if that person stood as a third party to the

employment relationship. Id. at 331. The Court in Forrester later added:

A corporation can act only upon the advice of its officers and agents,

and its officers and directors have a duty to serve the corporation.

Important societal interests are served by corporations having the

clear and candid advice of their officers and agents. Fear of personal

liability would tend to limit such advice. Consequently, when an

officer, director, or employee of a corporation acts within the general

range of his authority, and his actions are substantially motivated by

an intent to further the interest of the corporation, in claims of

intentional interference with employment, the action of the officer,

director, or employee is considered to be the action of the corporation

and is entitled to the same immunity from liability.

Id. at 334-35. Although the present case does not involve a claim for interference with an

employmentcontract, we believe Forrester is nevertheless applicable because the “societal interests”

discussed in Forrester apply with equal force regardless of whether the underlying claim is for

interference with an employment contact or procurement of breach of a non-employment contract.

In the present case, we believe Gibbs is immune from liability on the procurement of breach of

contract claim if he acted within the general range of his authority and his actions were substantially

motivated by an intent to further the interest of the City Bonding. Forrester, 869 S.W.2d at 334-35.

In his affidavit, Gibbs candidly acknowledged he met with his attorney to determine if the payments

could be stopped only “[a]fter Mr. Jenkins filed this suit against me.” In our opinion, a genuine issue

of material fact exists as to whether Gibbs was substantially motivated by an intent to further the

interest of City Bonding or whether he was substantially motivated to serve his own interest by

retaliating against Guy Jenkins for filing this lawsuit. 
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In light of the foregoing, we vacate the grant of summary judgment to Gibbs on the

claim for procurement of breach of contract and remand this claim for further proceedings consistent

with this opinion. In so doing, we express no opinion on whether there actually was a contract

between City Bonding and Guy Jenkins and, if so, what its terms were or if it was breached. We also

express no opinion on whether Gibbs unlawfully procured a breach of contract, if one exists, or

whether Gibbs is entitled to immunity. We hold only that summary judgment on this claim on the

record before us was inappropriate for the reasons set forth above. 

With regard to the remaining issues on appeal, the factual findings of the Trial Court

are accorded a presumption of correctness, and we will not overturn those factual findings unless the

evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,

727 (Tenn. 2001). With 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).

Next, we address the Trial Court’s exclusion of portions of Templeton’s deposition

and accompanying exhibits as hearsay. Plaintiffs argue Templeton had personal knowledge of the

matters which were excluded or they were admissible through one of the various exceptions to the

hearsay rule.

Admissibility of evidence is within the sound discretion of the trial judge. “When

arriving at a determination to admit or exclude even that evidence which is considered relevant trial

courts are generally accorded a wide degree of latitude and will only be overturned on appeal where

there is a showing of abuse of discretion.” Tompkins v. Annie’s Nannies, Inc., 59 S.W.3d 669, 674-

675 (Tenn. Ct. App. 2000)(quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442

(Tenn. 1992)). Templeton’s recollection as to the events he testified to was extremely vague, at best.

He admitted either being unable to recall numerous matters or not having any knowledge of the

events when they took place. During the course of the trial, the Trial Court carefully listened to both

sides when ruling on the admissibility of this evidence. After reviewing the entire deposition of

Templeton, we are unable to conclude the Trial Court erred when it made the various rulings

excluding portions of Templeton’s testimony. We, therefore, affirm the evidentiary rulings of the

Trial Court regarding the exclusion of portions of Templeton’s testimony. 

Plaintiffs also argue Defendant waived the right to object to the admissibility of the

excluded portions of Templeton’s testimony. Prior to the deposition, the parties stipulated "[a]ll

objections except as to the form of the questions are reserved to on or before the hearing." Plaintiffs

claim because Defendant did not object during the deposition, the objections were waived. We

addressed a very similar issue recently in Perry v. Winn-Dixie Stores, Inc., No. E-2001-00523-COAR3-CV, 2002 Tenn. App. LEXIS 160 (Tenn. Ct. App. Feb. 28, 2002)(no Rule 11 app. for perm. to

appeal filed). Perry involved a virtually identical stipulation, and we concluded the Trial Court

properly concluded an objection made at trial regarding improper foundation was not to the “form

of the question.” We went on to add: 
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To accept Plaintiff's argument would require us to completely ignore

the express stipulation the parties made at the deposition. This we

will not do. Stipulations are agreements between counsel regarding

business before the court which are entered into mutually and

voluntarily between the parties. Overstreet v. Shoney's, Inc., 4

S.W.3d 694, 701 (Tenn. Ct. App. 1999). While parties may not

stipulate to questions of law, they may stipulate "within the range of

possibly true facts and valid legal strategies ...." Id. On appeal,

stipulations are binding on the parties and may not be altered. Id. at

702 (citing Bearman v. Camatsos, 215 Tenn. 231, 236, 385 S.W.2d

91, 93 (1964); First Southern Trust Co. v. Sowell, 683 S.W.2d 680,

681 (Tenn. Ct. App. 1984)). The stipulation entered into between the

parties involved a valid legal strategy and is the type of stipulation

allowed under the law. It is, therefore, binding upon the parties. We

hold that the stipulation permitted Defendant to make an objection at

trial regarding whether a proper foundation had been laid ....

Plaintiff cannot use the Rules of Civil Procedure as a shield to ward

off an objection which he expressly stipulated was reserved for trial.

Perry, 2002 Tenn. App. LEXIS 160 at * 17-18. We believe the same result is merited in the present

case. Defendant’s various objections to the testimony of Templeton were not merely objections to

the form of the question. We conclude Defendant did not waive his right to object to this testimony

as hearsay, or any other basis which did not involve simply an objection based on the form of the

question.

Plaintiff’s main argument on appeal attacks the Trial Court’s determination of the

respective ownership interests of the parties. Plaintiffs claim the Trial Court erred when it concluded

Gibbs owned 490 shares of stock and further erred when it held Aubrey Allen Jenkins was not the

owner of 200 shares. The conclusions reached by the Trial Court on these issues by necessity

centered around credibility determinations. In resolving the factual issues presented for appeal, we

must keep in mind the Trial Court heard the conflicting testimony from the witnesses regarding their

claimed ownership interest in City Bonding. “Unlike this Court, the trial court observed the manner

and demeanor of the witnesses and was in the best position to evaluate their credibility.” Union

Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The

trial court’s determinations regarding credibility, as to those witnesses who testified live, are

accorded considerable 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 clear and convincing evidence to the contrary.’” Wells v. Tennessee Bd. of Regents,

9 S.W.3d 779, 783 (Tenn. 1999).

We cannot say the preponderance of the evidence weighs against the Trial Court’s

finding that Gibbs purchased 490 shares of stock from Joe Jenkins. Given the testimony of Gibbs

that he purchased 490 shares, the testimony of Joe Jenkins that he sold Gibbs 490 shares, as well as
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the cancelled check evidencing same, we cannot conclude there was any reversible error with regard

to the Trial Court’s conclusion that Gibbs owned 490 shares of stock. Likewise, the preponderance

of the evidence does not weigh against the Trial Court’s conclusion that Pollock’s 255 shares remain

unissued treasury shares given Pollock’s testimony he turned his stock back in to the corporation and

the disputed evidence concerning what, if anything, happened to this stock thereafter. 

Plaintiffs further argue the Trial Court erred when it failed to establish a constructive

trust on behalf of Aubrey Allen Jenkins for the 200 shares of stock he supposedly held in 1982. We

believe the issue of whether Aubrey Allen Jenkins actually held any stock and whether a constructive

trust should be imposed also are factually driven. The Trial Court apparently believed Aubrey Allen

Jenkins at one point did own 200 shares, notwithstanding Aubrey Allen Jenkins’ own testimony that

he never knew he owned any stock. Having concluded he did own 200 shares at one time, the issue

then became whether a constructive trust should be imposed. Plaintiffs rely on the following

language found in Gibson’s Suits in Chancery, § 383 Cases of Constructive Trust (7th ed. 1988):

§ 383. Cases of Constructive Trusts. – Constructive trusts are so

called because they are constructed by the Courts of Equity in order

to satisfy the demands of justice, without reference to any presumable

intention of the parties. They include cases: (1) where a person

procures the legal title to property in violation of some duty, express

or implied, to the true owner; or (2) where title to property is obtained

by fraud, duress, or other inequitable means; or (3) where a person

makes use of some relation of influence or confidence to obtain the

legal title upon more advantageous terms than could otherwise have

been obtained; or, (4) where a person acquires property with notice

that another is entitled to its benefits. In all such cases, Equity, for

the purpose of doing justice in the most efficient manner, constructs

a trust out of the transaction, and makes a trustee of the person thus

acquiring the title....

While the facts certainly are in dispute about whether Aubrey Allen Jenkins ever

owned any stock in City Bonding, the Trial Court apparently concluded that he did and that his

father, Joe Jenkins, possessed the authority to sell this stock. The preponderance of the evidence

does not weigh against this conclusion. Joe Jenkins testified he sold his 490 shares of stock to Dan

Gibbs. Gibbs testified he purchased the 490 shares from Joe Jenkins. The cancelled check for this

purchase was admitted into evidence. Both Gibbs and Joe Jenkins testified they were not aware

Aubrey Allen Jenkins ever owned any stock. Aubrey Allen Jenkins himself testified he was not

aware he owned any stock until shortly before his deposition and many years after the fact. Guy

Jenkins is the only party who testified Aubrey Allen Jenkins ever owned any stock, and he testified

at least at one point this stock was “jointly” owned by Joe Jenkins and Aubrey Allen Jenkins. The

evidence in the record certainly supports the Trial Court’s conclusion there was a valid sale of stock

between Gibbs and Joe Jenkins as well as the Trial Court’s conclusion that Gibbs and Joe Jenkins

were unaware of any potential adverse claim to the stock that was sold. There was no testimony that
3

 We believe the same could be said for the 200 shares of stock Guy Jenkins claims to have “given” Aubrey

Allen Jenkins. 

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Joe Jenkins or Gibbs knew about any potential ownership of stock by Aubrey Allen Jenkins. None

of the four situations for establishing a constructive trust apply in this case since there is no evidence

that Gibbs violated any duty, exercised fraud, took advantage of any relationship, or otherwise

engaged in any inappropriate conduct when purchasing this stock. Accordingly, we conclude the

Trial Court did not commit reversible error when it declined to establish a constructive trust on

behalf of Aubrey Allen Jenkins for the 200 shares of stock. In light of this holding, we pretermit the

issue of whether the Trial Court erred when it refused to establish a constructive trust because this

was not properly plead at trial.

On appeal, Gibbs argues not only is he entitled to the 490 shares of stock he

purchased from Joe Jenkins, but he also claims entitlement to the additional 250 shares which Guy

Jenkins admits to “giving” him prior to the purchase of the 490 shares. Given the fact Guy Jenkins

actually possessed much less stock than he thought he did, it certainly is doubtful whether he

intended to make a gift to Gibbs of stock he might not have possessed to begin with. Nevertheless,

Gibbs admitted no stock certificate was ever issued to him documenting this gift and there was no

documentary evidence verifying he ever received this gift. The formal requirements of a gift are “the

intention by the donor to make a present gift coupled with the delivery of the subject of the gift by

which complete dominion and control of the property is surrendered by the donor.” Hansel v.

Hansel, 939 S.W.2d 110, 112 (Tenn. Ct. App. 1996). Regardless of what the parties may have

intended to do with these 250 shares, the facts certainly do not preponderate against the Trial Court’s

conclusion this supposed gift of 250 shares to Gibbs failed for lack of delivery.3 Accordingly, we

affirm the Trial Court’s conclusion on this issue as well. 

The only remaining issue is Plaintiffs’ claim the Trial Court improperly included

certain documents in the record on appeal. Since we have disposed of the issues on appeal without

relying on these documents, this issue is moot. 

Conclusion

We vacate the decision of the Trial Court granting summary judgment to Gibbs on

Guy Jenkins’ claim that Gibbs unlawfully procured a breach of contract. The rest of the judgment

of the Trial Court is affirmed in all other respects. This case is remanded to the Trial Court for

further proceedings as necessary consistent with this opinion. Costs of appeal are taxed one-half to

the Appellants Guy R. Jenkins and Aubrey Allen Jenkins, and their surety, and one-half to the

Appellee Dan Gibbs.

_____________________________________

D. MICHAEL SWINEY