                                                                                     04/24/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                          Assigned on Briefs March 1, 2018

 FISHER DEZEVALLOS v. TERRY BURNS INSURANCE AGENCY, LLC

                 Appeal from the Circuit Court for Davidson County
                    No. 17C1246 Hamilton V. Gayden, Jr., Judge
                     ___________________________________

                          No. M2017-02030-COA-R3-CV
                      ___________________________________


Appellee brought a claim against Appellant insurance agency for “unlawfully and
fraudulently” withdrawing funds from Appellee’s bank account and accepting premium
payments on two insurance policies after Appellee allegedly cancelled his policies.
Although not asserted as a claim in its general sessions summons, the circuit court, on
appeal, awarded Appellee a judgment for unjust enrichment in the amount of $397.00.
Because the preponderance of the evidence does not support the judgment, we reverse
and remand.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  and Remanded


KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.


Brian F. Walthart, Nashville, Tennessee, for the appellant, Terry Burns Insurance
Agency, LLC.

Roger D. Baskette, Nashville, Tennessee, for the appellee, Fisher Dezevallos.


                                       OPINION

                                  I.     Background

      Appellee, Fischer Dezevallos, obtained two Allstate insurance policies from the
Terry Burns Insurance Agency (“Appellant”). The policies covered two of Appellee’s
rental properties. In April 2015, Appellee telephoned Appellant and stated that he had
obtained replacement policies from State Farm and wanted to cancel his Allstate policies.
Appellant informed Appellee that he needed to submit a written notice cancelling his
Allstate policies. Appellee failed to personally send the required written notification, but
instructed his new State Farm agent to send the necessary information to Appellant to
cancel the Allstate policies. Several months later, Appellee discovered that the Allstate
policies had not been cancelled and that the premiums for the policies were still being
automatically drafted from his account.

       On February 14, 2017, Appellee filed a civil warrant against Appellant in the
General Sessions Court of Davidson County alleging that Appellant unlawfully and
fraudulently removed funds from Appellee’s bank account in the amount of $3,980.00.
Appellee sought “treble damages and attorneys’ fees all pursuant to the Tennessee
Consumer Protection Act.” Additionally, Appellee sought “$10,000 in damages to
[Appellee’s] credit due to collection efforts.” Following trial, the general sessions court
ruled in favor of Appellant and dismissed Appellee’s general sessions warrant. Appellee
appealed the dismissal to the Davidson County Circuit Court (“trial court”).

       On August 28, 2017, the trial court held a bench trial. At the close of Appellee’s
proof, Appellant moved to dismiss Appellee’s negligence and/or professional negligence
claims for failure to present proof that established the applicable standard of care, or that
Appellant had violated that standard. However, upon the trial court’s suggestion,
Appellee agreed to “amend to conform to the pleadings on the ground of unjust
enrichment from commissions.” Thereafter, the trial court granted Appellant’s motion to
dismiss as to the negligence claim but denied the motion as to unjust enrichment.
Following the trial, the trial court entered a judgment against Appellant, stating in
relevant part:

       Upon testimony in open court it appeared that [Appellee] failed to include
       an indispensable party pursuant to TRCP 19, namely Allstate Insurance
       Company, the court having given the [Appellee] the opportunity to non-
       suit, the [Appellee] chose to waive that option and proceed limiting their
       case to unjust enrichment only. From further testimony, the Court
       determined that the [Appellant] was unjustly enriched in the amount of
       $397.00.

Appellant appeals.

                                        II.    Issues

       Appellant raises two issues for review as stated in its brief:


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       1.     Whether the Court of Appeals’ standard of review is de novo.
       2.     Whether the trial court erred when it awarded Plaintiff/Appellee a
              judgment based on the doctrine of unjust enrichment.

                               III.    Standard of Review

        Because this case was tried by the trial court, sitting without a jury, we review the
trial court’s findings of fact de novo upon the record of the trial court with a presumption
of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d).
However, no presumption of correctness attaches to the trial court’s conclusions of law,
and our review is de novo. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing
Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013)).

                                      IV.    Analysis

       As an initial procedural argument, Appellant contends that the trial court failed to
make sufficient findings of fact and conclusions of law to support its judgment for unjust
enrichment. Tennessee Rule of Civil Procedure 52.01 states that “[i]n all actions tried
upon the facts without a jury, the court shall find the facts specially and shall state
separately its conclusions of law and direct the entry of the appropriate judgment.”
(emphasis added). This requirement is not a “mere technicality.” See Hardin v. Hardin,
No. W2012-00273-COA-R3-CV, 2012 WL 6727533, at *3 (Tenn. Ct. App. Dec. 27,
2012) (quoting In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8
(Tenn. Ct. App. 2009)). In the absence of written findings of fact and conclusions of law,
“this court is left to wonder on what basis the court reached its ultimate decision.” In re
Estate of Oakley, No. M2014-00341-COA-R3-CV, 2015 WL 572747, at *10 (Tenn. Ct.
App. Feb. 10, 2015) (quoting In re Christian G., No. W2013-02269-COA-R3JV, 2014
WL 3896003, at *2 (Tenn. Ct. App. Aug. 11, 2014)); In re K.H., No. 2008-01144-COA-
R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009). “[F]indings and
conclusions facilitate appellate review by affording a reviewing court a clear
understanding of the basis of the trial court’s decision.” Lovlace v. Copley, 418 S.W.3d 1,
34 (Tenn. 2013). Additionally, findings of fact “evoke care on the part of the trial judge
in ascertaining and applying the facts. Indeed, by clearly expressing the reasons for its
decision, the trial court may well decrease the likelihood of an appeal.” Id. at 34-35
(internal citations and footnotes omitted). As set out in the context above, the trial
court’s order states only that “[f]rom further testimony, the Court determined that the
[Appellant] was unjustly enriched in the amount of $397.00.” The trial court did not
make any findings of fact with regard to why Appellant was unjustly enriched in the
amount of $397.00.

       When a trial court’s findings fail to satisfy Tennessee Rule of Civil Procedure
52.01, our usual course is to vacate the trial court’s judgment and remand the case with
directions to issue sufficient findings of fact and conclusions of law. See, e.g., Pandey v.
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Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *5-6 (Tenn. Ct. App.
Feb. 22, 2013); Hardin, 2012 WL 6727533, at *5-6; In re Connor S.L., No. W2012-
00587-COA-R3-JV, 2012 WL 5462839, at *4-5, *7 (Tenn. Ct. App. Nov. 8, 2012);
Simpson v. Fowler, No. W2011-02112-COA-R3-CV, 2012 WL 3675321, *4-5 (Tenn.
Ct. App. Aug. 28, 2012). However, in certain cases, this Court may choose to remedy the
trial court’s deficient factual findings by conducting a de novo review of the record to
determine where the preponderance of the evidence lies. See, e.g., Ward v. Ward, No.
M2012-01184-COA-R3-CV, 2013 WL 3198157, at *15 (Tenn. Ct. App. June 20, 2013);
see also Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (applying de novo
review when the trial court’s factual findings were insufficient); Brooks v. Brooks, 992
S.W.2d 403, 405 (Tenn. 1999) (same). The appellate court “may ‘soldier on’ when the
case involves only a clear legal issue, or when the court’s decision is ‘readily
ascertainable.’” Hanson v. J.C. Hobbs Co., Inc., No. W2011-02523-COA-R3-CV, 2012
WL 5873582, at * 10 (Tenn. Ct. App. Nov. 21, 2012) (quoting Simpson v. Fowler, No.
W2011-02112-COA-R3-CV, 2012 WL 3675321, at *4 (Tenn. Ct. App. Aug. 28, 2012));
Pandey v. Shrivastava, 2013 WL 657799, at *5 (Tenn. Ct. App. Feb. 22, 2013). Here,
the facts are readily ascertainable from the record, and we will soldier on to determine
whether Appellant was unjustly enriched.

       Appellant argues that the trial court erred in awarding Appellee a judgment of
$397.00 for unjust enrichment. Unjust enrichment is a quasi-contractual theory or an
equitable substitute for a contract claim in which a court may impose a contractual
obligation where one does not exist. Whitehaven Cmty. Baptist Church v. Holloway,
973 S.W.2d 592, 596 (Tenn. 1998) (citing Paschall’s Inc. v. Dozier, 219 Tenn. 45, 407
S.W.2d 150, 154-55 (Tenn. 1966)). Courts may also impose a contractual obligation
under an unjust enrichment theory if the contract has become unenforceable or invalid
and the defendant will be unjustly enriched unless the court imposes an obligation. In re
Estate of Ross, No. M2013-02218-COA-R3CV, 2014 WL 2999576, at *3 (Tenn. Ct.
App. June 30, 2014) (citing Paschall’s, 407 S.W.2d at 154). “The most significant
requirement of an unjust enrichment claim is that the benefit to the defendant be unjust.”
Patterson v. Patterson, No. M2016-00886-COA-R3-CV, 2017 WL 1433310, at *9
(Tenn. Ct. App. Apr. 20, 2017) (quoting Freeman Indus., LLC v. Eastman Chem. Co.,
172 S.W.3d 512, 525 (Tenn. 2005)).

        In this case, the insurance policy between the parties is a personal contract
between the insured and the insurer. Action Chiropractic Clinic, LLC v. Hyler, No.
M2013-01468-COA-R3CV, 2014 WL 576010, at *6 (Tenn. Ct. App. Feb. 12, 2014),
aff’d, 467 S.W.3d 409 (Tenn. 2015) (citing John Weis, Inc. v. Reed, 22 Tenn. App. 90,
118 S.W.2d 677 (Tenn. Ct. App. 1938)). The party seeking to recover relying on an
unjust enrichment theory has the burden of proving it is entitled to relief. Patterson,
2017 WL 1433310, at *10; D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 464
(Tenn. Ct. App. 1990); Bokor v. Holder, 722 S.W.2d 676, 680 (Tenn. Ct. App. 1986)).
At trial, Appellee testified that he asked Hugo Organista, his State Farm agent, to send
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Appellant information regarding his new policies and request that his Allstate policies be
cancelled. The proof presented at trial shows that Mr. Organista did not send any
documentation to Appellant in 2015. During the months in 2015 when premiums were
still being drafted from Appellee’s account for coverage with Allstate, the record is
devoid of any written notification sent by Appellee or his State Farm agent to cancel the
coverage provided by Allstate. Admittedly, Appellant received insurance premiums from
Appellee after he obtained replacement coverage from State Farm; however, it is
undisputed that for the entire period that premiums were being drafted from Appellee’s
account, Allstate provided insurance coverage for his two rental properties. As a result of
such premium payments, Allstate was contractually obligated to pay claims for potential
losses Appellee may have sustained at these properties during the period in question. As
such, the benefit Appellant received in commissions in the amount of $397.00 for such
coverage was not unjust. To support the trial court’s award for unjust enrichment,
Appellee was required to show that the commissions received by Appellant were not
justified. Based upon our review of the proof, Appellee failed to make this necessary
showing. Accordingly, we conclude that the preponderance of the evidence does not
support the trial court’s award of unjust enrichment.

                                   V.     Conclusion

      For the foregoing reasons, we reverse the trial court’s judgment. The case is
remanded to the trial court for further proceedings as may be necessary and are consistent
with this Opinion. Costs on the appeal are assessed against the Appellee, Fisher
Dezevallos, for all of which execution may issue if necessary.


                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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