# FILED April 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ ROVENE LOWE, Plaintiff-Appellee, Henry Chancery No. 16081 Vs. C.A. No. 02A01-9707-CH-00147 WINNIE SUE SANDERS CA NNON and husband, ROBERT CANNON, Defendants-Ap

pellants.

________________

___________________________________________________________ _ FROM THE HENRY COUN TY CHANCERY COURT THE HONORABLE WALTON WEST, CHANCELLOR

William T. Looney o

f Paris For Appellee Teresa McCaig Ma

rshall of Paris For Appellants

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.
CONCUR: ALAN E. HIGHERS, JUDGE HOLLY KIRBY LILLARD, JU DGE This is a suit to establish a resulting trust and to recover for the breach thereof
. Plaintiff/Appel lee Rovene Lowe (Lowe) brought suit alleging a resulting trust and seeking damages arising from

an alleged breach by Defendants/Appellants Winnie Sue Sanders Cannon1 Charles Sanders died in 1990. 2

(Mrs. Cannon) and Robert Cannon (Mr. Cannon). The trial court found that Lowe had proven the existence of a r

esulting trust

and that the Cannons had breached the trust. Consequently, the trial court awar

ded Lowe $15,840 i

n damages. The Ca

nnons appeal. FACTS Lowe is an elderly widow , who was age 85 a

t the time of trial. WhenLowe’s husband died in 1985, she became the sole owner of

all their propert

y owned as tenants by the entirety. In 1988 Lowe sold most of her land for $8 6,2 50. Lowe became dependent upon her younger brother, Buford R. Sanders (Sanders), and the parties discussed living together in

a home. Lowe convey ed approximately five acres of land to Sanders and his wife, now Mrs. Cannon. Low e testified that she received no compensation for the c onveyance, although the deed shows consideration of $10.00. Mrs. Cannon testified that Sanders paid Lowe $4000for the land. A house was constructed on the

land and the house

contained a sepa

rate “apartment” occupied by Lowe. The parties dispute the financing of the home’s construction. Lowe testified t h at she made three payments

totaling $74,420 for the construction of the house. Lowe maintained that paymentswere made to Sanders’ son, Charles Sanders, who was employed by the builder of the home. 1 Lowe’s attorney at the time, Gary J. Swayne (Swayne) also testified about the financing of the home’s construction:

I think we describe

d the whole transa

ctio n as far a s her funds being used to build this

house; there was going to be an apartment placed there for Mr. Buf

ord to take care

of her the rest of her life. Mrs. Cannon, however, testified that she and Sanders paid for the construction of the home. At trial, Lowe testif

ied that it was the in

tention of Lowe an

d Sanders for Low

e to live in the apartment for the duration of her lifetime. Low e claims that she always assumed that she would predecease Sa

nders. Therefore, she refused the advice of her attorney, Swayne, to draft
a document that expressly provided her with a life estate in the premises. Lowe’s alleged intent to occupy the apartment for the remainder of her life was supported by the testimony of Swayne. Sanders died unexpected

ly in 1990, and Sande

rs’ widow, Mrs. Ca

nnon, became the

sole
owner of the property

as surviving tenant by the entirety. Mrs. Cannon marrie d Mr. Cannon in3

1992, and t he couple resided in the home. Lowe co

ntinued to live in the

apartment until September

of 1993, when her friendship with the Cannons began to deteriorate. Lowe testified that she felt is olated by the Cannons and unwelcome in the home. When the Cannons posted “for sale” signs on the residence without notifying Lowe, Lowe decided to move elsewhere. The Cannons sold the home to third parties in 1995. On August 4, 1995, Lowe filed thisComplaint, alleging that she was the beneficiary of an oral trust that w

as executed by he

r and her brothe

r. Lowe alleges t

hat the terms

of the trust
were for Lowe to

live in the apartment portion of the residence for the remainder of her lifetime. Lowe claims that the Canno ns bre ached the trust by selling the home, effectively evicting her from the premises. Lowe sought damages accruing from this alleged breach. Following a bench t

rial, the trial court held that Lowe retained a resulting trust in the apartment. Based on the evidencepresented at trial, thetrial court found that Lowe and Sanders “hada clear understanding” that Lowe would reside in the apartment for the rem ainder of her life and assessed damages at $15,840. ISSUES The first issue fo

r review is: 1. Was the Chancellor’s finding of a resulting trust between the Plaintiff and her decea sed brother, Buford Sanders, proven by evidence that is “clear, cogent and convincing”? The Tennessee Supreme Court has described the creation and application of a resulting trust as follows:

The imposition of a resulting trust is an equitable remedy; the doctrine of resulting trust i s invoked to preve

nt unjust enrichme

nt. Such a trust is implied by law from the acts and conduct of the parties and the facts and

circumstances w

hic h at the time exist and surround the tran

sactio n out of w hich it arises. Bro adly speaking, a resulting trust

arises from the nature or

circumstances of considerat io n involved in a transaction whereby one person becomes invested with a lega l title but is obligate d in equity to hold his legal title for the benefit of another, the intention of the former to hold in trust for the latter being implied or presumed as a matter of law, althoughno intention to cre ate or hold in

trust has been manifested, expressly or by inference

, and there ordin

arily being no fraud or constructive fraud involved. In re Estate of Nichols , 856 S.W.2d 397, 401 (Tenn. 1993) (quoting 76 Am. Jur. 2d Trusts § 166 (1992)). To esta

blish a resulting tr

ust, the benefici

ary must actually p

ay for or be obliga

ted to pay for “part of the original transaction of purchase” at the time that the transaction takes place.4

Rowlett v. Guthrie , 867 S.W.2d 732, 735 (Tenn. App. 1993). Due to their nature, r esulting trusts
are usually proven by parol evidence. In re Estate of Warde ll ex rel . Wardell v. Dailey , 674 S.W.2d 293, 295 (Tenn. Ap p. 1983); Rowlett, 867 S.W.2d at 735. An alleged beneficiary of a resulting trust

bears the burden of proving the trust’s existence by “clear, cogent and convincing” evidence. Nichols , 856 S.W.2d at 403 (quoting Wardell , 674 S.W.2d at 295). Therefore, our review of the record is aimed at determining whether there is clear and convincing ev

idence to support the trial court’s finding. The evidence i n the record supports the trial court’s finding that Lowe established the existence of a resulting trust in the apartment. Lowe’s testimony was supported by the testimony of Swayne, a disinterested witness. Cf. King v. War ren , 680 S.W.2d 459, 461 (Tenn. 1984) (“[T]he testimony of a single, interested witness would not be sufficient to establish a trust by that quantum of proof.”). Based on the testimony by Lowe and Swayne, the t rial court w as justified in finding that Lowe su bstantially contributed to the construction of the house. See Rowlett , 867 S.W.2d at 735 . F urthermore, Lowe and Swayne both testified that Lowe and Sanders intended for Lowe to live in the apar

tme nt forthe remainder of her life. When the resolution of

the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the wit nesses in their manner a

nd demeanor while

testifying is in a far better pos

ition than this Court to

decide th

ose issues. Mays v. Brighton Bank , 832 S.W.2d 347, 351-52 (Tenn. App. 1992). The weight, faith, and cre ditto be given to any wi tness’s testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Id . at 352; Town of Alamo v. Forcum-James Co ., 327 S.W.2d 47, 49 (Tenn. 1959). After a careful examination of the record, we find that the proof establishes the existenceof the trust by “clear, convincing and cogent” evidence. Nichols , 856 S.W.2d at 403. The next issue for

review is: 2. Was the Chancellor’s finding of the Defendants’ breach of a resulting trust contrary to t he facts prese nted at the trial and, instead, should the Plaintiff’s leaving the residence in question be considered a br

each or abandon

ment of the oral tr

ust? The evidence supports the trial court’s finding that the Cannons breached the trust when they attempted to s ell th e residence without the consent of Lowe. The Cannons argue,5

alternatively, that Lowe abandoned the trust by moving out of the apartment on her own accord be fore the home was sold. The Cannons do not cite authority from any jurisdiction that recognizes the abandonment o f an oral trust.

Even if sucha notion were recognized in this state, this issue is irrele

vant since the Can

nons breached th

e trust before Lo

we left her apa

rtment. Accordingly, the judgment of the trial court is aff

irmed in all respe

cts, and the case

is remanded for such other proceedings as are necessary. Costs on a ppe al are assessed to the Appellants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE