                                                                                                04/16/2020
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                     February 19, 2020 Session

             JUSTIN JOSEPH HARRIS v. WENDELL SMITH, ET AL.

                     Appeal from the Chancery Court for Rhea County
                    No. 16-CV-11033 Frank V. Williams, III, Chancellor
                          ___________________________________

                                No. E2019-00906-COA-R3-CV
                            ___________________________________

This is a constructive trust case. The plaintiff, who had recently purchased a twelve-acre
tract of real property, filed a complaint for ejectment against the defendants, his uncle and
cousin by marriage, who were residing in and claiming ownership of a block house and a
two-acre parcel of the twelve-acre tract. The defendants, however, requested—and the
trial court ultimately imposed—a constructive trust in favor of defendant uncle against
the two-acre parcel and the block house. Finding that the plaintiff purchased the entire
twelve acres with notice that the defendant uncle had a beneficial interest in the two-acre
parcel and block house, we affirm the judgment of the trial court.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which JOHN W. MCCLARTY
and THOMAS R. FRIERSON, II, JJ., joined

Rebecca L. Hicks, Dayton, Tennessee, for the appellant, Justin Joseph Harris.

Howard L. UpChurch, Pikeville, Tennessee, for the appellees, Wendell Smith, and Jason
Smith.

                                      MEMORANDUM OPINION1


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

                This Court, with the concurrence of all judges participating in the case, may
       affirm, reverse or modify the actions of the trial court by memorandum opinion when a
       formal opinion would have no precedential value. When a case is decided by a
       memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be
       published, and shall not be cited or relied on for any reason in any unrelated case.
                         BACKGROUND AND PROCEDURAL HISTORY

       At the time of the underlying trial, Emma Price was eighty-nine years old and had
four children: Wendell Smith; Wilma Smith Foy, who passed away on August 28, 2018;
Ernie Price; and Brenda Harris. As the relevant parties here on appeal, Wendell Smith is
from Emma Price’s first marriage, and Brenda Harris is from Emma Price’s second
marriage to Jesse Price. Wendell Smith has a son, Jason Smith. Brenda Harris also has a
son, Justin Harris. In 1997, Emma Price and Jesse Price divorced. As part of the division
of marital property, Emma Price was awarded a twelve-acre parcel of real property
located at 169 Harris Price Lane (“the Property”), which included the family home and a
barn. In 1999, following his mother’s divorce, Wendell Smith moved into the barn on the
Property, where he lived intermittently for the next several years. In 2011, the barn
burned down. Sometime shortly after the barn burned, Wendell Smith began building a
block house on a two-acre parcel of the Property behind the family home.

       Beginning in 2012, Emma Price’s mental and physical health began to decline. As
a result, on January 15, 2013, she executed a Durable Power of Attorney, naming Brenda
Harris as her attorney-in-fact. Among her siblings, Brenda Harris assumed the majority
of the caretaking responsibilities for her mother, using the money in her mother’s bank
account to pay for her expenses. By July 2015, however, Emma Price’s bank account
had been depleted. With no money left to take care of their mother, Brenda Harris
informed Wendell Smith and the other siblings that the Property would have to be sold in
order to provide for their mother’s care. According to Wendell and Jason Smith, Brenda
Harris acknowledged that the two-acre parcel upon which Wendell Smith had built the
block house was to be excluded from the sale of the Property, which was in keeping with
Emma Price’s last will and testament. While the will is not in the record on appeal, it is
undisputed it provided that, upon her death, two acres of the Property would pass to
Wendell Smith.

       Initially, Brenda Harris was attempting to keep the Property in the family and sell
it to a family member. Several family members, including Cassandra Thornsbury, a
granddaughter of Emma Price, and Tara Smith, Wendell Smith’s daughter, were
interested in purchasing the Property but, for various reasons, were unable to do so. In
December 2015, Justin Harris decided he would like to purchase the Property. However,
after Jason and Tara Smith filed a Petition for Conservatorship2 in January 2016,
requesting that they be appointed as co-conservators of the person and estate of Emma
Price, Brenda Harris ultimately decided not to sell the Property to a family member.

      On February 3, 2016, she listed the Property with Jim Monday at ERA Blue Key
Properties. This initial listing included only ten of the twelve acres and the family home.

       Tenn. R. App. P. 10
       2
         The Petition for Conservatorship is not at issue on appeal.
                                                  -2-
However, according to Brenda Harris and Jim Monday, potential buyers did not want the
Property unless it came with the full twelve acres. It was at this point that Justin Harris
decided, for the second time, that he would purchase the Property so his grandmother
would not have to move into a nursing home. While Justin Harris maintains that he
always intended to purchase the entire twelve acres of the Property, Wendell and Jason
Smith argue that Brenda Harris was willing to sell only ten acres of the Property, thus
excluding the two-acre parcel and the block house located upon it. Justin Harris made his
second offer to purchase the entire twelve-acre tract for $190,000 on May 11, 2016,
which Brenda Harris accepted on behalf of Emma Price. Because Wendell and Jason
Smith still occupied the two-acre parcel following the close of the sale on June 10, 2016,
Justin Harris, on October 7, 2016, filed a Complaint for Ejectment in the Rhea County
Chancery Court (the “trial court”) against both of them. Wendell and Jason Smith filed
an Answer and Counter-Complaint, naming Brenda Harris as a third-party defendant and
requested that a constructive trust be imposed against the two-acre parcel and the block
house. The trial court entered its final order on April 29, 2019. As is relevant here, the
trial court found and ordered as follows:

      (4) The sale of the real property including the house and 12 acres to Justin
      Harris was an arm’s length transaction and it was for fair cash market value
      . . . . (7) The Plat separating the two acres of real property for Wendell
      Smith does not comply with the Statute of Frauds. (8) There are no other
      agreements or memorandums [sic] that satisfy the Statute of Frauds
      regarding transfer of two acres of real property from Emma Price to
      Wendell Smith. (9) There is to be imposed a constructive trust wherein
      Wendell Smith is granted two acres improved by a block building from the
      Petitioner, Justin Harris, subject to a first right of refusal.

Additionally, the trial court ordered that, “[w]ithin two weeks from entry of the Final
Order in this cause, Respondent, Wendell Smith, shall finalize the Plat of the two acre
tract such that it can be recorded and shall have prepared a Quitclaim Deed from Justin
Harris to Wendell Smith with a right of first refusal.” Justin Harris timely appealed.

                                   ISSUE PRESENTED

       As we perceive it, there is one dispositive issue on appeal, restated as follows:
Whether the trial court erred in imposing a constructive trust against the two acres and
the block house for the benefit of Wendell Smith.

                                       DISCUSSION

       Here, the trial court imposed a constructive trust “against the two acres and the
block structure for the benefit of Wendell Smith against the current owner, Justin Harris.”
A constructive trust is one created in equity to satisfy the demands of justice. Rowlett v.
                                            -3-
Guthrie, 867 S.W.2d 732, 734 (Tenn. Ct. App. 1993). It is imposed against one who

      by fraud, actual or constructive, by duress or abuse of confidence, by
      commission of wrong, or by any form of unconscionable conduct, artifice,
      concealment, or questionable means, or who in any way against equity and
      good conscience, either has obtained or holds the legal title to property
      which he ought not, in equity and good conscience, hold and enjoy.

Livesay v. Keaton, 611 S.W.2d 581, 584 (Tenn. Ct. App. 1980). As this Court has stated,
a court may impose a constructive trust in the following situations:

      (1) Where a person procures the legal title in violation of some duty,
          express or implied to the true owner; (2) where title to the property is
          obtained by fraud, duress, or other inequitable means; (3) where a
          person uses some relationship or influence to obtain legal title upon
          more advantageous terms than could be otherwise obtained; or (4)
          where a person acquires property knowing that another is entitled to its
          benefits.

Arnold v. Bowman, No. E2004-01151-COA-R3-CV, 2005 WL 1488679, at *6 (Tenn. Ct.
App. June 23, 2005) (citing Tanner v. Tanner, 698 S.W.2d 342, 345-46 (Tenn. 1985)).
As we perceive them, the relevant findings of fact pertaining to the trial court’s
imposition of the constructive trust are as follows:

              But that still leaves us with the issue of a constructive trust. The fact
      of the matter is that when the property was listed originally with the realtor,
      that it was listed as the house and 10 acres. And that was changed at some
      point to list or to advertise the house and 12 acres when it was sold to
      Brenda’s son. That would be Justin Harris. I think it was an arm’s length
      transaction. I think it was a fair cash market value. I think that Brenda
      Harris knew when she sold it that she was cutting off Wendell’s claim to
      the property, which she previously—she admitted this whole thing[.]

             . . . . Well, what does it constitute when Brenda Harris gets on the
      witness stand and she admits under oath that her brother, Wendell, was
      supposed to have that two acres and that house, and that the problem was
      that the first survey was incorrectly drawn to include a part of a neighbor’s
      property so it had to be redone further delaying her and her effort to get
      some money[.]

             ....

             But I’m interested in avoiding a hardship . . . . I listened to other
                                         -4-
       testimony about how much work, how much hard work Wendell and his
       son and perhaps others have put into building that little makeshift house
       back there. And I know that’s bound to have been a back-breaking job that
       just was drug out for five or six years. And when they say they had twenty
       something thousand dollars invested in it, I didn’t doubt that.

While the trial court could have been more specific in its findings, we discern from the
proof in the record on appeal that it imposed the constructive trust against the two acres
and the block house on the ground that Justin Harris had obtained title to the property
knowing that another—Wendell Smith—was entitled to its benefits.

        On appeal, Justin Harris maintains that, “[w]here the argument is that a
constructive trust exists where a person acquires property with notice that another is
entitled to its benefit[,] there is a requirement that the party seek[ing] to impose a
constructive trust must own the property in question or have a beneficial interest in it.”
Additionally, Justin Harris argues that Wendell Smith’s own conduct should have
precluded the imposition of a constructive trust. Conversely, Wendell and Jason Smith
argue on appeal that it was appropriate for the trial court to impose a constructive trust
against the two acres and the block house not only because Justin Harris obtained the title
with notice that they were entitled to its benefits, but also because he obtained it through
inequitable means by obtaining it for less than its value.

            A. Did Wendell Smith have a beneficial interest in the two acres?

       Wendell Smith maintains on appeal that his mother always intended for him to
have the two-acre parcel, but he admitted that there was no written instrument reflecting
the same besides her Last Will and Testament. Specifically, he testified as follows:

       Q: [Emma Price] never gave you a deed, did she?
       A: No.
       Q: Okay.
       A: She did it in her heart and love and it’s real.

Brenda Harris echoed the same in her own testimony:

       Q: Did [Emma Price] tell all three of the children what she wanted?
       A: She discussed it, yes.
       Q: Did she tell you all that she wanted Wendell [to] have two acres?
       A: She said, yeah, two acres, but she didn’t specify. She just said two
       acres.
       Q: And did you know what two acres that was?
       A: Well, he chose a spot long before that. So I assumed that would
       probably be the spot he would want.
                                            -5-
       Q: Did you have any objection to him choosing that spot?
       A: I did not have an objection, no.
       ....
       Q: Brenda, did your mother ever gift any property to Wendell to your
       knowledge?
       A: She—he picked a spot on his own and she told him he could have two
       acres, but other than just being something that she said, she said she wanted
       him to have two acres.

Further, Justin Harris’ brief on appeal states that “[t]here was merely a promise to
transfer the property at death threw [sic] a bequest in [Emma Price’s] will.” Accordingly,
while Emma Price’s will is not in the record on appeal, both parties agree that it provided
two acres would pass to Wendell Smith upon her death. However, in this case, the trial
court found that Brenda Harris, as the attorney-in-fact for Emma Price, had “gifted” the
two acres and the block house to Wendell Smith. Addressing the survey that Brenda
Harris requested Wendell and Jason Smith procure and which she subsequently signed,
the trial court found as follows: “[I]t doesn’t state the consideration. It doesn’t—it
contains a description of the property all right. Here it’s drawn out. But it doesn’t say
anything about the consideration. It was a gift, but that came in [b]y parol evidence.”
(emphasis added).

        As we perceive it, regardless of whether Brenda Harris’ alleged “gift” to Wendell
Smith can be classified as such, the trial court’s imposition of a constructive trust
nevertheless may be appropriate, because, as this Court has noted previously, there are “a
number of exceptions to the strict application of the statute of frauds[,]” one of which “is
a factual scenario supporting a conclusion that the equitable remedy of a constructive
trust or a resulting trust is appropriate.” Arnold, 2005 WL 1488679, at *5. Accordingly,
a constructive trust may be proved by parol evidence. See, e.g., Story v. Lanier, 166
S.W.3d 167, 185 (Tenn. Ct. App. 2004); Browder v. Hite, 602 S.W.2d 489, 493 (Tenn.
Ct. App. 1980). However, “[i]n order to establish a resulting or constructive trust by
parole [sic] evidence generally requires a greater degree of proof than a mere
preponderance of the evidence.” Browder, 602 S.W.2d at 493. More specifically, we
have noted the following:

               The general rule is that oral proof of an express trust in realty or
       personalty which is not required to be in writing, or of facts giving rise to a
       resulting or constructive trust, must be received with caution. So reluctant
       are the courts to engraft a trust by parol on the legal title to real estate, or to
       enforce an alleged parol trust in personal property, that there is perhaps no
       better-established doctrine than the one which requires a high degree of
       proof in order to establish the trust by parol evidence.

              ....
                                              -6-
              It has also been held, where an express trust in land can be proved by
       parol evidence, that testimony of one witness only, unsupported by any
       corroborating circumstances, is insufficient to prove such a trust.

Gray v. Todd, 819 S.W.2d 104, 108-09 (Tenn. Ct. App. 1991) (quoting 76 Am. Jur. 2d
Trusts § 637, at 846-47, 849-50 (1975)). Further, resulting and constructive trusts cannot
be declared on the unsupported testimony of a plaintiff, contradicted by the testimony of
the defendant or others, where the circumstances supporting each side are about equally
divided. Id. at 109. Accordingly, we must determine whether the parol evidence in this
record is sufficient to establish that Wendell Smith had a beneficial interest in the two-
acre parcel, thereby rendering appropriate the trial court’s imposition of a constructive
trust against the same.

       Wendell and Jason Smith argue on appeal that Justin Harris purchased the entire
twelve acres with notice that Brenda Harris was in the process of subdividing the two
acres from the Property. As noted above, in July 2015, Brenda Harris informed Wendell
Smith and the other siblings that the Property would have to be sold in order to provide
for Emma Price’s care. Initially, Brenda Harris was willing to keep the Property in the
family and sell it to a family member. Although several family members expressed an
interest in purchasing the property, for various reasons, they were unsuccessful in their
attempts to do so. After Jason and Tara Smith filed a Petition for Conservatorship,
however, Brenda Harris decided that she would not sell the Property to a family member.
On February 3, 2016, she listed the Property with Jim Monday at ERA Blue Key
Properties. The Property was initially listed for $219,000, and, at the direction of Brenda
Harris, the initial listing provided that the Property would include only ten rather than
twelve acres. Specifically, Brenda Harris testified as follows:

       Q: Did you tell Jim Monday they’re getting two acres; we’re going to list
       the property—
       A: I told him to try to sell the 10 acres only.
       Q: 10 acres?
       A: Uh-huh.

Jim Monday echoed the same in his testimony:

       Q: Okay. And you say that it sits on 10 acres, not 12?
       A: Right.
       Q: Right.
       A: Because two acres didn’t go.
       ....
       Q: Okay. When you showed the home, did you show them [the block
       house]. The inside of that building at all?
       A: No. Because [the block house] didn’t go with the listing.
                                            -7-
Ultimately, according to Brenda Harris and Jim Monday, potential purchasers did not
want the Property unless it came with the full twelve acres.

       It was at this point that Justin Harris decided that he would purchase the Property
so his grandmother would not have to move into a nursing home.3 Justin Harris testified
that he always intended to purchase all twelve acres of the Property:

       Q: When you first were going to purchase the property, or you first learned
       the property was going to be offered to you kids, it was offered for—you
       kids, you grandchildren—it was offered as 10 acres and grandmother’s
       house, right?
       A: No . . . . [T]hey was [sic] selling it all for the 12 acres and the—
       Q: Could you be mistaken about that? You heard your mom testify earlier.
       A: From what I understood is that she was going to purchase it and she was
       going to deal with Wendell because nothing was said about that when that
       was—when that was going on.

Wendell and Jason Smith, however, argue that Brenda Harris was willing to sell only ten
acres of the Property, thus excluding the two-acre parcel. Significantly, Brenda Harris’
testimony substantiates their claim:

       Q: Why did you sign the survey to allow the property to be subdivided two
       acres . . ., if what you’re saying is true?
       A: . . . . He [Wendell Smith] went and done the survey. So I was going to
       go ahead and give him the two acres so I could sell my mom’s house and –
       Q: You were going to go ahead and give the two acres to Wendell?
       A: Yes. So I could sell her house and take care of her.
       ....
       Q: How are you making efforts to give [Wendell Smith] two acres?
       A: Pretty much I wanted to—I was trying to be fair with everybody. He
       wanted those two acres. I needed to sell her house. So I was trying to give
       him the two acres and get it separated so I could sell the house.

Brenda Harris, however, testified that Wendell and Jason Smith never completed the
process of subdividing the Property, despite having ample opportunity to do so. Jason
Smith, however, testified that he and his father never completed the subdivision because
Brenda Harris would not sign two remaining surveys that the planning commission
required. Specifically, Jason Smith testified as follows: that, in April 2016, he went
before the Rhea County Planning Commission in order to finish the process of
subdividing the two-acre parcel from the Property; that he took with him various permits,

       3
         Justin Harris had previously considered purchasing the Property in December 2015, but,
for various reasons, he decided against it at that time.
                                             -8-
soil samples, and the survey signed by Brenda Harris; but because he did not have two
additional required surveys, the Commission did not complete the subdivision of the
Property; and that, subsequent to the meeting before the Commission, Wendell Smith
went to Brenda Harris’ home and requested that she sign the remaining two surveys, but
she refused.4

       In Gray v. Todd, the plaintiff sued her former husband, seeking a court-ordered
sale of certain farm realty owned by them as tenants in common and certain farm
equipment jointly owned by them at the time of their divorce. Gray, 819 S.W.2d at 105.
The defendant argued that, as a result of discussions between the parties at the time the
divorce was obtained, an oral trust in his favor had been formed in both the farm realty
and farm equipment. Id. The chancery court agreed, holding that the defendant had
established the existence of an oral trust by parol evidence. Id. On appeal, this Court
reversed, noting that resulting and constructive trusts cannot be declared on the
unsupported testimony of a plaintiff, contradicted by the testimony of the defendant or
others, where the circumstances supporting each side are about equally divided. Id. at
109. Ultimately, we found that “the only evidence of the purported oral agreement to
create a trust was the testimony of an interested party—the defendant.” Id. Moreover,
we found that the defendant’s testimony was contradicted by that of the plaintiff. Id.
Accordingly, we held that the defendant’s evidence “failed by a long shot to rise to the
standard of ‘clear, cogent and convincing proof’ required by law for the creation and
imposition of an orally-expressed trust.” Id.

        We reached a similar conclusion in Allen v. National Bank of Newport. There, the
plaintiff executed deeds of trust on his farm in order to secure his debts. Allen v. Nat’l
Bank of Newport, 839 S.W.2d 763, 764 (Tenn. Ct. App. 1992). Ultimately, however, the
plaintiff defaulted. Id. The defendants, who had been chicken and tobacco farmers on
the property for a number of years at the time of the foreclosure, loaned the plaintiff
money, which he used to hire an attorney in an effort to enjoin the foreclosure sale, but he
was unsuccessful in doing so. Id. The plaintiff then filed suit in the chancery court to
impose a constructive trust on the farm that had been sold. Id. According to the plaintiff,
the defendants had agreed to purchase the property and reconvey it to the plaintiff at
some unspecified time in the future. Id. The defendants denied any such oral agreement
was made. Id. The chancery court denied the plaintiff’s request, and he subsequently
appealed. Id. at 764-65. On appeal, we affirmed the chancery court’s ruling, stating that
the plaintiff’s action must fail because he did not establish proof of an oral trust by clear
and convincing evidence. Id. at 765. Specifically, we noted that “the evidence
establishes that the parties presented sharply different versions of the facts surrounding
the foreclosure and purchase.” Id. Our holding in Allen emphasizes the principles

       4
          The only evidence in the record as to why Brenda Harris would not sign the two additional
surveys is her testimony that she was frustrated with how long it had taken Wendell and Jason Smith to
get the subdivision approved.
                                                -9-
expressed in Gray: that, without corroborating evidence, the testimony of one witness
only—especially if that witness is the interested party—is insufficient to satisfy the
heightened standard of proof required to create a constructive trust based on parol
evidence.

        In Gray and Allen, there was no corroborating evidence supporting the parol
evidence submitted by the interested parties.      In this case, however, unlike Gray and
Allen, there is sufficient corroborating evidence to justify the trial court’s imposition of a
constructive trust. Here, Brenda Harris admitted that she wanted to give Wendell Smith
the two acres, and, significantly, she signed a survey indicating the same. Additionally,
referring to her dealings with the realtor, Jim Monday, Brenda Harris admitted that, when
she initially listed the property for sale, it was for “the 10 acres only.” Jim Monday
offered corroborating testimony, stating that the “two acres didn’t go” and that the block
house on the two acres “didn’t go with the listing.” Further, the initial listing itself
indicated that the size of the Property was “10 acres”. Of particular significance, even
Justin Harris, who ultimately purchased the entire twelve acres of the Property, testified
as follows:

       Q: And you knew that Brenda and Wendell were in discussion about giving
       Wendell that two acres?
       A: Yes.

Accordingly, there is more evidence in the record than simply the “testimony of one
witness only, unsupported by any corroborating circumstances.” See Gray, 819 S.W.2d
at 109. Further, this is not a case “where the circumstances supporting each side are
about equally divided[,]” see id., or where “the evidence establishes that the parties
presented sharply different versions of the facts[.]” See Allen, 839 S.W.2d at 765.
Rather, the record contains clear and convincing evidence that Brenda Harris had agreed
to transfer the two acres to Wendell Smith prior to the sale of the Property and that Justin
Harris was aware of this situation. Accordingly, the facts of this case fall into “one [of
the] situation[s] where it is appropriate for a court to impose a constructive trust[,]” that
is, “where a person acquires property knowing that another is entitled to its benefits.”
Arnold, 2005 WL 1488679, at *6. We conclude that the trial court did not err in
imposing a constructive trust against the two acres and the block house for the benefit of
Wendell Smith. Having found that a constructive trust was appropriately found by the
trial court, Appellees’ argument that Appellant Justin Harris acquired the property by
purchasing it for less than its value is pretermitted.

    B. Does Wendell Smith’s own conduct preclude the imposition of a constructive
                                       trust?

       Justin Harris also argues on appeal that Wendell Smith’s own conduct should have
precluded the trial court from imposing a constructive trust. He first points to the trial
                                           - 10 -
court’s pronouncement of the maxim that “equity aids the vigilant.” Specifically, the trial
court found as follows: “What bothers me is the long period of time from 2011 up until
2016 that he had to get everything done. There is a maxim of equity that says, equity aids
the vigilant. There’s another maxim that says, that those who sit on their rights lose their
rights.” Regardless of the fact that the trial court did not hold this maxim against
Wendell and Jason Smith, we nevertheless find that it does not apply to the facts of this
case. The record reflects that, while Wendell Smith began building the block house with
his own funds on the two acres in 2011, Brenda Harris did not request that Wendell and
Jason Smith procure the required survey to subdivide the two acres from the Property
until sometime in 2015. Accordingly, Wendell and Jason Smith’s procrastination and
delay, if any, does not relate back to 2011, but rather to 2015. Further, when asked about
the time in between Brenda Harris’ signing the first survey on February 23, 2016 and his
taking her the two additional surveys to sign, Wendell Smith testified as follows:

       Q: From the time she signed the one paper till you asked her to sign two
       more, what length of time passed?
       A: It wasn’t long . . . . It was probably four weeks, five weeks.
       Q: Okay. Did you and Brenda have any problems during that four or five
       weeks?
       A: No. I thought everything was fine.

Accordingly, we do not find sufficient evidence of Wendell and Jason Smith’s
procrastination and delay so as to preclude the imposition of a constructive trust.

Justin Harris also cites to the doctrine of unclean hands, maintaining that Wendell Smith
“has not come into court with clean hands thereby barring any recovery on his behalf.”
Specifically, he argues that Wendell Smith made threats “that someone would get hurt if
he did not get his two acres” and that, in response, “Brenda Harris signed one of the
surveys[.]” This, however, is not an accurate portrayal of the timeline of the events. As
noted previously, when specifically asked why she signed the first survey with the
intention of subdividing the two acres from the Property, Brenda Harris testified as
follows: “He [Wendell Smith] went and done the survey. So I was going to go ahead and
give him the two acres so I could sell my mom’s house[.]” Accordingly, from our review
of the record on appeal, we conclude that Brenda Harris did not sign the first survey
because Wendell Smith threatened her. While this Court certainly does not condone
threatening behavior of any kind between parties, we conclude that the doctrine of
unclean hands is inapplicable to this case and that Wendell Smith’s conduct does not
preclude the trial court’s imposition of a constructive trust.




                                           - 11 -
                                CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed.




                                             _________________________________
                                             ARNOLD B. GOLDIN, JUDGE




                                    - 12 -
