IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

DOROTHY TH ARP, ) C/A NO. E1999- 00921- COA-R3-CV ) Plaintiff-Appellee, ) HAMILTON CHANCERY ) vs. ) HON. W . FRANK BROW N, III, ) CHANCELL OR LENITA KAY THA RP, ) ) AFFI RMED AND Defend ant-App ellant. ) REMANDED

STUART E. DU NCAN, DUN CAN & M OSLEY, P.C., Chattanooga, for PlaintiffAppellee.

JEFFREY D. BOE HM, O’NEAL WALKER & BOEHM , Chattanooga, for Defend ant-App ellant.

O P I N I O N

Franks, J.

In this act

ion the Trial

Court entered judgment against the defe

ndant for $175,265.82 and placed a l ien on property

held by defendant . Defendant has appealed.
Plaintiff br ought this act

ion to recover cer

tain assets that plai

ntiff had transferred t

o defendant and her lat

e husband, plaint

iff’s only son. In 1996 plainti

ff was involved in an aut omobile accident a

nd was 

# FILED
February 25, 20

00 Cecil Crowson, Jr. Appellate Court Clerk2

approximately

76 years old.Plaintiff sustained seri ous injuries

and experienced a long hospitalization. At the

time, she owned a house in Gibs on County, and had subst antial liquid asset

s. Plainti

ff’s only s on was a minister who li ved in the parsonage hous e of his church in Hamilt

on County, along wit

h his wife, the defe

ndant. The son brought plaintiff to his ho me to c are for h er after h er hosp italization

.

Plaintiff testifi

ed that her son told her to transfer her assets to him so that she would not lose everythi ng if the other par

ty to t he accident sued her . She then quitclaimed her home to her son and transferred and cashed out all of her assets, including CD’s, a mutual fund, and an IRA, and gave the proceeds to her son. The house in Gibson County was sol d and a home purchased in Hamilton county. Pla intiff moved in to the hous e in Ham ilton Coun ty. The son co mmitted su icide appro ximately two m onths la ter.

At that point defe

ndant moved into the home with pl aintiff. The parties did not get along,

and at trial

there was testi

mony from a member of the church congregation, whom the Chancel lor found very c

redible, t hat defendant tol

d a church member the day after

the funeral tha

t “when she put Jim in t he ground, that was t

he end of her relati

onship with [plai

ntiff].” Afte

r plainti ff was hospitalized, defendant refused to all

ow plaintiff to r

eturn to the hous e. When plaintiff was released from the hospital,she returned to West Tennessee where she was residi ng in a trail

er and subsisting on Social Security benefit s. After hearing evide

nce, the Trial

Court found that ther

e was a “breach of the express and/or

implied agreement t

o take care of Dorothy

Tharp for the rest

of her life.” The Court then o rdered that any assets which h ad not been used for plaintiff’s ben efit s hou ld be retu rned to he r, and imp osed a tru st on the h ouse in H amil ton c oun ty until it co uld be s old (or f inance d by the d efend ant).

Neither party

has appealed the Trial Court’s findi ngs of fact, and our standard of review on this appeal as questions of law is de novo , with no presumption of corre ctness a ttaching to the T rial Cou rt’s legal c onclus ion. Union Carbide Corp. v. Huddleston , 854 S.W.2d 8 7 (Tenn. 1993).

The Trial Court found that an express and/or i

mplied agreement exi sted between these parti

es, such that

plaintiff t

ransferred her assets to her son and defendant, and in r

eturn her son and defendant would see to her needs for the rest of her life.
It is well- settled t hat a court may i

mpose an implied or quasi contract where one party has

received a benefit

at the expense of anot

her, and it is unjust or inequita ble for t he party to retain th is bene fit. Jaffe v. Bolt on , 817 S.W.2d 19 (Tenn. Ct. App. 1991). Such contr acts are “imposed or

created by law without the assent of the party bound, on the ground that they are di

ctated by r

eason and justice.”3

Weatherly v. American Agr. Chemical Co. , 65 S.W.2d 592 (Tenn. Ct. App . 1933). It is beyond disp ute that the de fendant w as unjustly enrich ed at plaintiff ’s expense in this case, an d the C ourt’s f inding that a co ntract ex isted is su pporte d by the e videnc e.

Defendant arg ues that she did not breach the contract, but the trial court found that defendant had t old plainti

ff’s niece that

plaintiff could not return to t he home unde r any circumstances. The ev idence establishes a refusal to p erform defendant’s part

of the bargain. An “unqualified refusa l” to perform, a

mounts to a repudiation,and whether the words or act ions of a party

have risen to t

he level of repudi ation is a questio n of fa ct to be d etermin ed by the trial cou rt. Wright v. Wright , 832 S.W .2d 542 (T enn. Ct. A pp. 1991 ); Kentucky Home Mutual Life Ins. Co. v

. Rogers , 270 S .W.2d 188 (T enn. 19 54).

Having determined that defendant evinced her i ntent not to be bound by the contract,

and that a breach had occ urred, plai

ntiff was not requi

red to wait and see if defe ndant c hange d her m ind bef ore filin g suit fo r dama ges. Jamison v. Jamison Pest Control Co. , 852 S .W.2d 884 (T enn. C t. App. 1 992).

Defendant argues that

plaintiff’ s proper remedy would be f or defendant to pay plai

ntiff’s li ving expenses for the

remainder of her li

fe, which is in t

he nature of a specific p erforman ce remed y, but plaintiff is no t forced to a ccept spec ific perfor manc e as a rem edy wh en it has not bee n soug ht. Jamis on.

The Trial Court als o found that the defendant held the home and other assets as trustee f or plain tiff, and this find ing is su pporte d by the e videnc e as we ll. A constructive trust arises wh en a party “ha s obtained o r holds the leg al right to prop erty which he ought not, in e quity and good conscience, hold and enj oy.” Jenkins Subway, Inc. v. Jones , 990 S .W.2d 713, 72 5 (Ten n. Ct. A pp. 199 8).

In this case,

the Trial Court

did not specifi

cally des cribe the tr

ust he found as constructi

ve or resulti

ng, but under eit

her theory,

it is clear that defendant held title in her n ame to ass ets in excess of $170 ,000.00 w hich form erly belonged to or were purchased with assets belonging t o plaintiff.It was clearl y in the Trial Court’s discr

etion to award damages t o plaintiff,

as equity a

nd good conscience require that

those assets

or their val

ue be returned to t

he plaintiff

so that she may

have these fu nds to u se in he r suppo rt.

We affirm the jud gment of the T rial Court and reman d at appellant’s cost.

__________________________ Herschel P. Franks, J.4

CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ D. Michael Swiney, J.