                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      October 14, 2003 Session

                 RENA THOMPSON v. CHARLES HENSLEY, ET AL.

                       Appeal from the Chancery Court for Monroe County
                            No. 13632    Jerri S. Bryant, Chancellor

                                     FILED NOVEMBER 12, 2003

                                     No. E2003-00456-COA-R3-CV



Rena Thompson (“Plaintiff”) filed this lawsuit claiming her grandson, Charles Hensley, and his wife,
Karen Hensley (collectively “Defendants”), breached an oral contract. Specifically, Plaintiff claims
she conveyed her house and real property to Defendants in exchange for their oral promise to take
care of her and allow her to remain living in the house with them. Plaintiff suffered a stroke and
went to live with her son, Perrian Hensley (“Plaintiff’s son” or “her son”). After living with her son
for approximately one year, Plaintiff wanted to return to her house. When she was not allowed to
return to her house, Plaintiff sued Defendants for specific performance. The Trial Court found there
was no contract. Plaintiff appeals. We affirm.1


                      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                          Chancery Court Affirmed; Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J.,
and WILLIAM H. INMAN , SR. J., joined.


J. Lewis Kinnard, Madisonville, Tennessee, for the Appellant Rena Thompson.


Peter Alliman, Madisonville, Tennessee, for the Appellees Charles Hensley and Karen Hensley.




        1
          Oral argument was heard in this case on October 14, 2003, in Morristown as part of the Court’s C.A.S.E.
(Court of Ap peals Affecting Student Education) p roject.
                                              OPINION

                                             Background

               This lawsuit involves a claim for specific performance of an alleged oral contract.
Plaintiff’s complaint claims she deeded her house and surrounding property to Defendants in
exchange for their agreement to take care of her and to allow her to continue residing in the house
with them. In their answer, Defendants denied making any such contractual agreement with
Plaintiff. When Plaintiff was not allowed to return to her house after suffering a stroke, she sued for
specific performance of the alleged oral contract.

                Plaintiff’s son was the first witness at trial and testified that he currently resides in
Tellico Plains on property which also was deeded to him by Plaintiff. Plaintiff’s son testified that
Plaintiff and her husband, Plaintiff’s son’s stepfather, moved to Tennessee in 1978 and built a three
bedroom house on the property currently at issue. Plaintiff continued to live in this house after her
husband passed away in 1981. Plaintiff originally owned approximately fifty acres of land. Plaintiff
had discussions with her son about his moving to East Tennessee so he could assist her with keeping
up the land, which he eventually did. In 1997, Plaintiff deeded a tract of land to her son and a
different tract to Defendants, who by that time also had moved to Tennessee. Plaintiff retained
possession of her house and the surrounding real property. Plaintiff’s son retired and moved onto
the land which Plaintiff had deeded to him, and he eventually built a house there. According to
Plaintiff’s son, when Defendants first moved to Tennessee from Ohio, they lived with Plaintiff for
two months. Defendants then moved into a mobile home located on Plaintiff’s land.

                Plaintiff’s son testified Plaintiff has had four strokes and lived with him for a period
of time after each of the strokes. After her third stroke, Plaintiff lived with her son for a period of
time while rehabilitating and then began to express a desire to return to her house. Plaintiff
eventually returned to her house. After her fourth stroke, Plaintiff once again lived with her son after
being released from the hospital. Plaintiff lived with her son for approximately one year and then
began to ask about returning to her house. Plaintiff’s son told her that he did not think it was wise
for her to return to her house due to her medical condition. By that time, Plaintiff had executed a
third deed which conveyed the remaining land and her house to Defendants. Plaintiff’s son knew
that Plaintiff had deeded her remaining property to Defendants. Plaintiff told her son that she was
going to sign the house over to Defendants and they were going to move in with her. However,
Plaintiff never mentioned any details surrounding why she deeded her house and remaining property
to Defendants. Plaintiff’s son was not aware of any agreement between Plaintiff and Defendants
regarding Plaintiff’s being able to live in the house or her long term care. Plaintiff never mentioned
any alleged agreement to her son until after he determined that Plaintiff could not return to her house.
Plaintiff had been living with her son for approximately one year when he made this determination.
Plaintiff’s son testified that both Plaintiff and his mother-in-law reside with him and his wife.
Although Plaintiff’s son does not charge Plaintiff or his mother-in-law any rent, they each “donate”
$250.00 per month.



                                                  -2-
                 The next witness at trial was Plaintiff. Plaintiff testified she was eighty-three years
old and has one son and one grandson. Plaintiff testified Defendant Karen Hensley had expressed
a concern about living in the trailer and that she was scared when it stormed. According to Plaintiff,
Karen Hensley inquired about whether her family could move in with Plaintiff. Plaintiff agreed that
they could. After Defendants moved into Plaintiff’s house, Plaintiff told Defendants they could have
her house and land “after I’m gone.” Plaintiff testified she has had two strokes. The most recent
time she was hospitalized was due to complications from medicine, not another stroke. When
Plaintiff’s son was taking Plaintiff home from the hospital, he suggested Plaintiff stay with him for
a few days, which she agreed to do. According to Plaintiff, “I’ve been there ever since.” Plaintiff
testified she and her husband built the house in 1978, and her husband passed away in 1981. When
Defendants came to live with Plaintiff, they did not pay her any money, “not one dime.” Plaintiff
also testified that when Defendants moved in, they agreed to “take care of me as long as I lived.”
Plaintiff testified Karen Hensley told her “I’ll see to it personally that you’re took care of as long as
I live.”

                On cross-examination, Plaintiff identified the deed and her signature where she
conveyed property to her son in 1997. However, when shown the deed where she conveyed property
to Defendants in 1997, Plaintiff claimed the signature on the deed looked like her signature, but she
did not think it actually was her signature. Plaintiff later testified she was not sure if it was her
signature on this deed. Plaintiff admitted that during her deposition she testified that it definitely was
not her signature. At trial, Plaintiff stated she never conveyed any property to Defendants, even
though her complaint states that she deeded two tracts of property, one of which included her house
and surrounding property, to Defendants. Plaintiff specifically denied at trial conveying her house
to Defendants.

               Portions of Karen Hensley’s deposition were entered into evidence at trial. In her
deposition, Karen Hensley testified she never entered into any agreement with Plaintiff. According
to Karen Hensley, Plaintiff called both Defendants on numerous occasions asking them to move in
with her because she could not move back into her home unless someone was with her twenty-four
hours a day.

                 Portions of Charles Hensley’s deposition also were read into evidence. In his
deposition, Charles Hensley testified that he and his wife originally agreed to move into Plaintiff’s
house so Plaintiff could return home. Thereafter, Plaintiff once again was hospitalized. When
Plaintiff was released from the hospital the last time, her doctor as well as Plaintiff’s son would not
let her return to the house because she needed twenty-four hour care. According to Charles Hensley,
he and his wife are unable to provide Plaintiff with the necessary twenty-four hour care because they
are both employed outside of the home. However, Plaintiff’s son can provide the needed care
because he is retired. Charles Hensley testified it was never his understanding that he or his wife
were supposed to provide life time care for Plaintiff in return for Plaintiff’s deeding them her
property. Charles Hensley maintained both he and his wife never have been in a position to provide
this type of care because they are both employed.



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              After the above testimony was concluded, Defendants moved for a directed verdict.
The Trial Court dismissed Plaintiff’s claim, stating as follows:

                          Parole evidence is inadmissable to vary the deed. The
                  plaintiff in this case is attempting to show that she gave the deed in
                  exchange for services to be rendered. In order to do that she has to
                  prove a meeting of the minds.

                          Fraud, undue influence or anything of that nature is
                  specifically not proved in this case.… This deed is not against public
                  policy. It’s to give the land to an only grandchild or the child of an
                  only son ….

                           Plaintiff claims that there has been a wrong and asked this
                  Court to fix [the wrong] in equity. However, plaintiff participated in
                  the wrong and forfeited her right to any relief since she could have
                  protected herself by placing any specific restrictions on this deed and
                  did not do so. So even looking at those reasons along with the proof
                  in this case, there was no outside agreement to take care of her, and
                  the Court is directing a verdict.2

                After the trial, Plaintiff filed a motion to alter or amend the judgment or for a new
trial. After summarizing the proof that had been presented at trial, Plaintiff claimed the “facts and
circumstances show all the necessities of an implied contract, and … [this] rule should have been
applied by the Court ….” The Trial Court denied the motion, and Plaintiff appeals claiming the Trial
Court erred when it concluded there was no contract between the parties.

                                                     Discussion

                 When a motion to dismiss is made at the close of a plaintiff’s proof in a non-jury case,
the trial court must impartially weigh the evidence as though it were making findings of fact and
conclusions of law after presentation of all the evidence. See Tenn. R. Civ. P. 41.02(2). If a
plaintiff's case has not been established by a preponderance of the evidence, then the case should be
dismissed if, on the facts found and the applicable law, the plaintiff has shown no right to relief. See
City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977); Atkins v. Kirkpatrick,
823 S.W.2d 547, 552 (Tenn. Ct. App. 1991). The standard of review of a trial court's decision to
grant a Rule 41.02 involuntary dismissal is in accordance with Tenn. R. App. P. 13(d). Atkins, 823
S.W.2d at 552. As such, the factual findings of a trial court are accorded a presumption of
correctness, and we will not overturn those factual findings unless the evidence preponderates


         2
          Since this was a non-jury trial, Defendants should have moved for an involuntary dismissal under Tenn. R. Civ.
P. 41.02, as opposed to moving for a directed verdict under Tenn. R. Civ. P. 50. For purposes of this appeal, we will
treat Defendants’ motion as a motion for involuntary dismissal under Rule 41.02.

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against them. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With
respect to legal issues, our review is conducted “under a pure de novo standard of review, according
no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v.
Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                  It is well established that a contract can be express, implied, written, or oral, “but an
enforceable contract must result from a meeting of the minds in mutual assent to terms, must be
based upon sufficient consideration, must be free from fraud or undue influence, not against public
policy and must be sufficiently definite to be enforced.” Klosterman Development Corp. v. Outlaw
Aircraft Sales, Inc., 102 S.W.3d 621, 635 (Tenn. Ct. App. 2002). In the present case, the Trial Court
had the ability to assess the demeanor and credibility of those witnesses, including Plaintiff, who
testified live at trial. The Trial Court was presented with conflicting versions of whether there was
an oral agreement by Defendants to allow Plaintiff to remain in her house and to provide her care
for the remainder of her life in return for conveyance of the property. Defendants denied there was
any such agreement. Plaintiff insists such an agreement was made, although her testimony was
altogether inconsistent with her pleadings as to whether or not she actually conveyed the property
to Defendants. “Unlike this Court, the trial court observed the manner and demeanor of the
witnesses and was in the best position to evaluate their credibility." Union Planters Nat'l Bank v.
Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). A trial court's determinations
regarding credibility are accorded deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38
S.W.3d 560, 563 (Tenn. 2001). "[A]ppellate courts will not re-evaluate a trial judge's assessment
of witness credibility absent clear and convincing evidence to the contrary." Wells v. Tennessee Bd.
of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Accordingly, we conclude at the outset that the
preponderance of the evidence does not weight against the Trial Court’s conclusion that “there was
no outside agreement [by Defendants] to take care of [Plaintiff] ….” Since there was no
“agreement” by Defendants to take care of Plaintiff, it necessarily follows that there was no mutual
assent or meeting of the minds regarding the terms of the alleged oral contract. As there was no
agreement between the parties to the terms, the Trial Court correctly found there was no express oral
contract in existence.

                Tennessee recognizes “two distinct types of implied contracts; namely, contracts
implied in fact and contracts implied in law, commonly referred to as quasi contracts.” Angus v. City
of Jackson, 968 S.W.2d 804, 808 (Tenn. Ct. App. 1997)(quoting Paschall's, Inc. v. Dozier, 219
Tenn. 45, 53-54, 407 S.W.2d 150, 154 (1966)). A contract implied in fact is “one that ‘arises under
circumstances which show mutual intent or assent to contract.’” Givens v. Mullikin, 75 S.W.3d 383,
407 (Tenn. 2002)(quoting Angus, 968 S.W.2d at 808). However, in order for a contract implied in
fact to be enforceable, it must be supported by mutual assent, consideration, and lawful purpose.
Mullikin, 75 S.W.3d at 407. An express oral contract and a contract implied in fact are very similar
with the primary difference between them being the manner in which the parties manifest their
assent. “In an express contract, the parties assent to the terms of the contract by means of words,
writings, or some other mode of expression.… In a contract implied in fact, the conduct of the
parties and the surrounding circumstances show mutual assent to the terms of the contract.” River
Park Hospital, Inc. v. BlueCross BlueShield of Tennessee, Inc., No. M2001-00288-COA-R3-CV,


                                                   -5-
2002 Tenn. App. LEXIS 723, at *33 (Tenn. Ct. App. Oct. 11, 2002), appl. perm. appeal denied Feb.
18, 2003. Likewise, we find nothing in the record before us that would preponderate against the
Trial Court’s finding that Defendants did not agree to take care of Plaintiff, including “the conduct
of the parties and the surrounding circumstances.” Id. As such, there also was no contract implied
in fact. See Mullikin, 75 S.W.3d at 407 (“an implied contract ‘must result from a meeting of the
minds of the parties in mutual assent to the terms, [and] must be based upon a sufficient
consideration, free from fraud or undue influence, not against public policy and sufficiently definite
to be enforced’")(quoting Johnson v. Central Nat'l Ins. Co., 210 Tenn. 24, 34-35, 356 S.W.2d 277,
281 (1962)).

              Plaintiff also argues that there was a contract implied in law. As observed by this
Court in Angus:

               Contracts implied in law are created by law without the assent of the
               party bound, on the basis that they are dictated by reason and justice.
               Weatherly v. American Agr. Chem. Co., 16 Tenn. App. 613, 65
               S.W.2d 592 (1933). A party seeking to recover on an implied in law
               or quasi contract theory must prove the following:

                       A benefit conferred upon the defendant by the plaintiff,
                       appreciation by the defendant of such benefit, and acceptance
                       of such benefit under such circumstances that it would be
                       inequitable for him to retain the benefit without payment of
                       the value thereof.

Angus, 968 S.W.2d at 808 (quoting Paschall's, Inc. v. Dozier, 219 Tenn. 45, 57, 407 S.W.2d 150,
155 (1966)).

                Certainly, Defendants herein were conferred a benefit by Plaintiff. We will assume
that the second element, i.e. appreciation by Defendants of such benefit, likewise has been met. The
question then becomes whether it is inequitable under the circumstances for Defendants to retain the
benefit without payment of the value thereof. Angus, 968 S.W.2d at 808. At trial, Plaintiff denied
ever conveying any property to Defendants. In her complaint, however, Plaintiff claims she deeded
her house to Defendants on May 11, 1999. Plaintiff never has alleged that the conveyance of the
property to Defendants should be set aside because it was the result of fraud, undue influence, or the
like. It is implicit in the Trial Court’s opinion that it found there was a valid conveyance of the
property at issue, as evidenced by the Trial Court’s comments that “[f]raud, undue influence or
anything of that nature is specifically not proved in this case.… This deed is not against public
policy. It’s to give the land to an only grandchild or the child of an only son ….”

                To summarize: (1) there was a valid conveyance of the property to Defendants; (2)
there was no express or implied in fact contract by Defendants to provide long term care to Plaintiff
or to allow her to remain in the house; (3) Plaintiff needs twenty-four hour care; (4) Defendants are


                                                 -6-
not and never have been in a position to provide that care; and (5) Plaintiff is residing with her son
who can and does provide Plaintiff the necessary care. In light of the foregoing, we are unable to
conclude that under these particular circumstances, it is inequitable for Defendants “to retain the
benefit without payment of the value thereof.” Angus, 968 S.W.2d at 808. Therefore, Plaintiff
likewise has failed to establish an oral contract implied in law.

                                             Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for further proceedings as are necessary, if any, consistent with this Opinion, and for collection
of the costs below. The costs on appeal are assessed against the Appellant Rena Thompson and her
surety.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




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