### IN THE CO URT OF APPEALS OF TE NNE SS EE AT JACKSON Ja nu ary 22 , 20 14 Ses si on

ELI Z ABETH B. TURNER v. SE LI NA C. GAVIRIA

D i r e c t A p p e a l f

r o m t h e C i r c u i t C o u r t f o r S h e l b y C o u n t y N o . C T

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. C h i l d e r s , J u d g e

N o . W 2 0 1 3

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Plaintiff a ppeals the trial court’s judg ment in favor of Def endant in this action to r ecove r amounts alleg edly due under an oral loan ag ree ment. We va cate the trial court’ s judgme nt and rema nd the matter for finding s of fac t and conclusions of law as require d by Tenne ssee Rule of Civil Procedur e 52.01.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Vacat ed and Rem anded

D A V I D R. F A R M E R , J ., delivere d t h e opinion of the Court, in which H O L L Y M. K I R B Y , J ., and J

. S T E V E N S T A F F O R D , J ., joined.

Kevin A. Snider, G erma

ntown, Tenne ssee, f

or the a ppellant, Elizabeth B. Tur ner.

Fr ed M. Ridolphi, J r., Memphis, Tenne ssee, f or the a ppellee, Selina C. Ga

viria.

MEMORAN DUM OP INION 1

This appea l arises from a Dec ember 2011 complaint filed by Eliz abeth B. Turner (Ms. Turner ) in the Circuit Court for Shelby County ag ainst her sister, Def endant Selina C. Gaviria (Ms. Gaviria ), in which Ms. Turner soug ht to rec over amounts allege d l y l o an ed to Mr. Gaviria

. I n her complaint, Ms. Turner alleg ed that, “many y ear s ag o,” she ag ree d to loan Ms. Gaviria $64,000 to be

Rule 10 o f t he Ru le s of

th e Cou rt of

Appe al s of

T enn ess ee pro vides : 1

T his Cour t, wit h the con cur re nce of al l j udges par ti ci pat ing in the cas e, m ay af fi rm, re verse
or m odi fy the act ion s of the tr ia l cou rt by m emorand um opi nio n when a for m al opi nio n woul d have no pre ced ent ia l value. Wh en a cas e is dec ide d by m emorand um opi nio n it sha ll be des ignat ed “M EMORANDUM OPI NI ON”, sha ll not be publ is hed
, and sha ll not be ci te d

or re li ed o n f

or any re aso n i n an y unrel at ed c ase

.used as a down pay ment on a home and for in vitro fer tiliz ati o n p ro ce d u re s

. She asser ted that, alt h o u gh t h e ag ree ment was not reduc ed to writing
, Ms. Gaviria made pay ments on the l oan unti l Ap ril 2001. She further asser ted that Ms. Gaviria “UNI L ATERAL L Y executed a document” offe ring to pay Ms. Turner a total of $32,000 at the rate of $100 per month for three y ear s, and $300 per month there afte r for seven y ear s, to commence when Ms. Gaviria ’s anticipated divorce beca me final. She further asser

ted that Ms. Gaviria ’s husband made essentially the same offe r, and that she neither a cce pted nor ag ree d to their off ers. Ms. Turne r asse rted that $35,000 re mained due on the loan; that, on October 10, 2011, her leg al counsel sent Ms. G aviria written demand for pay ment in the amount of $35,000 within 20 day s; a nd that Ms. G aviria had ref used to pa

y the balanc e owed. She asser ted claims for brea ch of contra ct and unjust enri ch m ent and pray ed for compensa tory damag es in the amount of $50,000, r easona ble attorne y ’s fe es, pre

judgme nt interest, and c osts.

Ms. Gaviria answe red in Marc h 2012. I n her answe r, Ms. Gaviria admitted that “monies

wer e deliver ed to her” by Ms. T urner , asser ted that she had r epaid Ms. Turne r in full “in the eve nt there was a leg al obliga tion to do so on her part[,] ” and denied any obliga tion for further pay ments. She asser ted six defe nses, including unenfor cea bility of the alleg ed note; that the money was a g ift; novation; acc ord and sa tisfaction; and the statute of limit ations.

Following discovery
, the trial court hear d the matter in J une 2013. By order enter ed J une 17, 20 1 3 , t h e t ri al court enter ed judgme nt in favor of Ms. Gaviria
, finding her “not liable

. . . for any damag es” t o M s

. T u rner

. Ms. Turner filed a motion to alter or amend on J une 25, which the trial court de nied on Aug ust 2, 2013. Ms. Turner f iled a timely

notice of a

ppeal to this Court.

Issues Presented

Ms. Turner

prese nts the following issue f or our r eview, a s stated by her:

The Trial Court incorre ctly applied the statute of limit ations’ start date in this matter to its J une 17, 2013[,] judgme nt.

Ms. Gaviria, on the other ha nd, asser ts the following issue, a s stated by her:

I s the Trial Court’s holding that [Ms

. Gaviria ] is not liable for m o n ey damag es to [Ms . Turner ] supported by a pre pondera

nce of the evidenc e adduc ed at tria l?

Stan dard of Revie w

We revie w a trial court’s findings o f fac t de novo on the rec ord and presume them to be

corr ect unless the evidenc e preponde rate s otherwise. Tenn. R. App. P

. 13(d); Armbrister v. Armbr i s ter , 414 S.W .3d 685, 692 (Tenn. 2013)(c itations omitted). We revie w a trial court’s conclusions on issues of law, howeve r, de novo with no presumption of corr ectne ss. Armbrister
, 414 S.W .3d at 692 (c itations omi tted).

-2-Discussion

We beg in our discussion by noting t h at the trial court made neither finding s of fac t nor conclusion s o f law in either its J une 2013 judgme nt or in its Aug ust 2013 order deny ing Ms. Turner ’s motion to alter or amend. The trial court supplied no basis for its judg ment in its order s. As the parties’ briefs and oral arg uments demonstrate, the parties differ in their interpre tation of the trial court’s oral ruli ng s at t rial. The trial court did not incorporate i t s o ra l ru l ings into its written order s. I t is well-settled that a trial court speaks throug h its wr itten or ders, not thr oug h statements contained in the transcr ipts, and that we revie w its written order s on appea l. Alexande r v. JB Partners , 380 S.W .3d 772, 777 (Tenn. Ct. App. 2011)(c itations omitted). Additionally
, eff ective J uly 2009, Rule 52.01 of the Tenne ssee Rules of Civil Procedur e was amende d to require trial courts to make specific finding s of fac t and conclusions of law in all bench trials, reg ardle ss of whether the parties reque st them. Tenn. R. Civ. P. 52.01; Bell v. Trull
, No. W2013–00398–C OA–R3–CV, 2013 WL 5447 2 8 9 , at * 3 (Tenn. Ct. App. Sept. 30, 2013)(c itations omitted). Rule 52.01 provides, in rele vant par

t:

I n all actions tried upon the fac ts without a jury
, the court shal l fi n d the fac ts specia lly and shall state separ ately its c onclusions of law and direc t the entry of the appropr iate judgme nt. The finding s of a master, to the extent that t h e co u rt adopts them, shall be considere d as the finding s of the court. I f an opinion or memorandum of decision is filed, it will be sufficie nt if the finding s of fac t and conclusions of law appea r there in.

Tenn. R. Civ. Pro. 52.01. I n the absenc e of written finding s of fac t and conclusions of law, we may be unable to revie w the trial court’s decision eff ectively

. Id

. (citations omitted). I n such case s, we g ener ally will vaca

te the trial court’s judgme nt and rema nd the matter to the trial court. W atkins v. W atkins
, No. M2012–02378–COA–R3–CV, 2013 WL 4 6 8 0456, at *4 (Tenn. Ct. App. Aug

. 28, 2013)(c itation omit ted).

I n the curr ent case , we are unable to deter mine upon what finding s of fac t or conclusions of law the trial court based its jud gm en t

. As noted above, the parties also appea r to be unable to definitively discern the trial court’s fac tual finding s or rea soning. Ms. Turner asser ts the trial court’s judgme nt was based on an err oneous conclusion of law with respe ct to the statute of limit ations. Ms. Gaviria , on the other hand, asser ts the trial court made a fa ctual finding that she did not “owe ” the

sums demande d. At oral ar gu m en t befor e this Court, she asser ted that the trial court “may ” have found no v at i o n , o r acc ord and satisfac tion, or no leg al obliga tion to repa y the disputed sums. Be cause we are unable to deter mine the basis for the trial court’s judgme nt or to disc ern its fac tual finding s, we are unable to revie w the matter and acc ording ly must vacate the judgme nt and rema nd this matter to the trial court.

Holdin g

I n light of the fore g oing, the trial court’s judgme nt in favor of Ms. Gaviria is vacated. This

-3-matter is rema nded to the trial court for finding s of fac t and conclusions of law. Costs of this appea l

are taxed one-ha lf to the Appellee
, Selin a C

. Ga v i ria, and one-ha lf to the Appellant, Eliz abeth B. Turner , and her

surety , for whic h execution may issue if nec essar

y

.

_________________________________ DAVI D R. FARMER, J UDGE

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