IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

DOROTHY THARP, ) C/A NO. E1999-00921-COA-R3-CV

)

Plaintiff-Appellee, ) HAMILTON CHANCERY

)

vs. ) HON. W. FRANK BROWN, III,

) CHANCELLOR

LENITA KAY THARP, )

) AFFIRMED AND

Defendant-Appellant. ) REMANDED

STUART E. DUNCAN, DUNCAN & MOSLEY, P.C., Chattanooga, for PlaintiffAppellee.

JEFFREY D. BOEHM, O’NEAL WALKER & BOEHM , Chattanooga, for

Defendant-Appellant.

O P I N I O N

Franks, J.

In this action the Trial Court entered judgment against the defendant for

$175,265.82 and placed a lien on property held by defendant. Defendant has

appealed.

Plaintiff brought this action to recover certain assets that plaintiff had

transferred to defendant and her late husband, plaintiff’s only son.

In 1996 plaintiff was involved in an automobile accident and was

FILED

February 25, 2000

Cecil Crowson, Jr.

Appellate Court Clerk
2

approximately 76 years old. Plaintiff sustained serious injuries and experienced a long

hospitalization. At the time, she owned a house in Gibson County, and had substantial

liquid assets. Plaintiff’s only son was a minister who lived in the parsonage house of

his church in Hamilton County, along with his wife, the defendant. The son brought

plaintiff to his home to care for her after her hospitalization. 

Plaintiff testified that her son told her to transfer her assets to him so

that she would not lose everything if the other party to the 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 sold and a home purchased in Hamilton county. Plaintiff

moved into the hous e in Hamilton County. The son committed suicide approximately

two months la ter. 

At that point defendant moved into the home with plaintiff. The parties

did not get along, and at trial there was testimony from a member of the church

congregation, whom the Chancellor found very credible, that defendant told a church

member the day after the funeral that “when she put Jim in the ground, that was the

end of her relationship with [plaintiff].” After plaintiff was hospitalized, defendant

refused to allow plaintiff to return to the house. When plaintiff was released from the

hospital, she returned to West Tennessee where she was residing in a trailer and

subsisting on Social Security benefits.

After hearing evidence, the Trial Court found that there was a “breach of

the express and/or implied agreement to take care of Dorothy Tharp for the rest of her

life.” The Court then ordered that any assets which had not been used for plaintiff’s

benefit should be returned to her, and imposed a trust on the house in Hamilton county 

until it could be sold (or financed by the defendant). 

Neither party has appealed the Trial Court’s findings 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 Trial Court’s legal conclusion. Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87 (Tenn. 1993).

The Trial Court found that an express and/or implied agreement existed

between these parties, such that plaintiff transferred her assets to her son and

defendant, and in return her son and defendant would see to her needs for the rest of

her life. 

It is well-settled that a court may impose an implied or quasi contract

where one party has received a benefit at the expense of another, and it is unjust or

inequitable for the party to retain this benefit. Jaffe v. Bolton, 817 S.W.2d 19 (Tenn.

Ct. App. 1991). Such contracts are “imposed or created by law without the assent of

the party bound, on the ground that they are dictated by reason and justice.” 
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Weatherly v. American Agr. Chemical Co., 65 S.W.2d 592 (Tenn. Ct. App. 1933). It

is beyond dispute that the de fendant was unjustly enriched at plaintiff’s expense in this

case, and the Court’s finding that a contract existed is supported by the evidenc e. 

Defendant argues that she did not breach the contract, but the trial court

found that defendant had told plaintiff’s niece that plaintiff could not return to the

home unde r any circumstances. The evidence establishes a refusal to perform

defendant’s part of the bargain. An “unqualified refusal” to perform, amounts to a

repudiation, and whether the words or actions of a party have risen to the level of

repudiation is a question of fact to be determined by the trial court. Wright v. Wright,

832 S.W.2d 542 (Tenn. Ct. App. 1991); Kentucky Home Mutual Life Ins. Co. v.

Rogers, 270 S.W.2d 188 (Tenn. 1954). 

Having determined that defendant evinced her intent not to be bound by

the contract, and that a breach had occurred, plaintiff was not required to wait and see

if defendant changed her mind before filing suit for damages. Jamison v. Jamison

Pest Control Co., 852 S.W.2d 884 (Tenn. Ct. App. 1992). 

Defendant argues that plaintiff’s proper remedy would be for defendant

to pay plaintiff’s living expenses for the remainder of her life, which is in the nature of

a specific performance remedy, but plaintiff is not forced to a ccept spec ific

performance as a remedy when it has not been sought. Jamison. 

The Trial Court also found that the defendant held the home and other

assets as trustee for plaintiff, and this finding is supported by the evidenc e as we ll. A

constructive trust arises when a party “has obtained or holds the legal right to property

which he ought not, in equity and good conscience, hold and enjoy.” Jenkins Subway,

Inc. v. Jones, 990 S.W.2d 713, 725 (Tenn. Ct. App. 1998). 

In this case, the Trial Court did not specifically describe the trust he

found as constructive or resulting, but under either theory, it is clear that defendant

held title in her name to assets in excess of $170,000.00 which formerly belonged to

or were purchased with assets belonging to plaintiff. It was clearly in the Trial

Court’s discretion to award damages to plaintiff, as equity and good conscience

require that those assets or their value be returned to the plaintiff so that she may have

these funds to use in her support. 

We affirm the judgment of the Trial Court and remand at appellant’s

cost.

__________________________

Herschel P. Franks, J.
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CONCUR:

___________________________

Charles D. Susano, Jr., J.

___________________________

D. Michael Swiney, J.