                 IN THE COURT OF APPEALS OF TENNESSEE

                                   AT KNOXVILLE
                                                                            FILED
                                                                           February 25, 2000

                                                                          Cecil Crowson, Jr.
                                                                         Appellate Court Clerk
DOROTHY TH ARP,                             ) C/A NO. E1999-00921-COA-R3-CV
                                            )
       Plaintiff-Appellee,                  ) HAMILTON CHANCERY
                                            )
vs.                                         ) HON. W . FRANK BROW N, III,
                                            ) CHANCELLOR
LENITA KAY THA RP,                          )
                                            ) AFFIRMED AND
       Defend ant-App ellant.               ) REMANDED




STUART E. DU NCAN, DUN CAN & M OSLEY, P.C., Chattanooga, for Plaintiff-
Appellee.


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



                                      O P I N IO 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
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 ho me to c are for h er after h er hosp italization .

              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 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 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 o rdered that any assets which h ad not been used for plaintiff’s
benefit s hould be returned to he r, and imposed a trust on the h ouse in Hamil 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 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 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 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
inequita ble for t he party to retain th is bene fit. 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.”

                                             2
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 told plaintiff’s niece that plaintiff could not return to the
home unde r any circumstances. The ev idence establishes a refusal to p erform
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
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 intent not to be bound by
the contract, and that a breach had occurred, plaintiff was not required 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 for defendant
to pay plaintiff’s living expenses for the remainder of her life, which is in the 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 also 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 equity and good conscience, hold and enjoy.” 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 specifically describe the trust he
found as constructive or resulting, but under either 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 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 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.

                                                3
CONCUR:



___________________________
Charles D. Susano, Jr., J.



___________________________
D. Michael Swiney, J.




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