                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 20, 2000 Session

                    CHRIS FARLEY v. CHARLES ELLIS, ET AL.

               A Direct Appeal from the Chancery Court for Crockett County
                     No. 7642    The Honorable George R. Ellis, Judge



                  No. W2000-00354-COA-R3-CV - Filed December 27, 2000


Plaintiff sued defendants to enforce alleged oral agreement to convey real estate or alternatively for
damages. The trial court found that the oral agreement violated the statute of frauds, but ordered,
under the doctrine of equitable estoppel, the specific performance of the oral agreement. Defendants
have appealed.


   Tenn.R.App.R. 3; Appeal as of Right; Judgment of the Chancery Court Reversed As
                               Modified and Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS ,
J. and DAVID R. FARMER, J., joined.

Mitchell G. Tollison, Humboldt, For Appellants, Charles Ellis and Wanda Borders Ellis

Jerald M. Campbell, Jr., Trenton, For Appellee, Chris Farley

                                             OPINION

         Plaintiff, Chris Farley, filed a complaint on March 9, 1999, against defendants, Charles Ellis
 (hereinafter defendant or Ellis) and Wanda Borders Ellis (hereinafter Ms. Borders) seeking specific
 performance of an alleged oral agreement to convey real estate or in the alternative for money
 damages. The complaint alleges that the defendants, Charles Ellis and Dorothy Ellis, plaintiff’s
 mother, were married in June 1990. In the summer or fall of 1993, defendant began asking the
 plaintiff to move from Arkansas to Crockett County, Tennessee, to help defendant care for
 plaintiff’s mother. The complaint avers that in exchange for plaintiff doing this, Charles Ellis
 agreed to deed “some” acreage of land to plaintiff. The complaint further avers that Ellis continued
 asking plaintiff to move and, finally, in approximately June or July, 1994, plaintiff did begin
 improving the real property. He worked on clearing the land for nearly three months and lived there
 part of that time in a trailer in defendant’s yard. Plaintiff further avers that subsequently he
 purchased a double-wide trailer, moved it on the property, and moved his family from Arkansas to
 the property. He alleges that he expended sums of money in placing improvements on the property
and spent many hours of labor improving the property. Plaintiff further avers that some time after
doing this work, he requested the defendant to deed the property as he had agreed, but that instead,
defendant “told plaintiff he could live on the property as long as he liked, so long as he paid the
property taxes on the land.” The complaint avers that plaintiff’s mother and Ellis divorced and that
plaintiff had paid the property taxes every year that he lived on the property since he was told to do
so by the defendant, except for the 1998 property taxes, which Ellis paid before plaintiff knew that
they were due. Plaintiff avers that in April of 1998, defendant, began telling the plaintiff that he
must move himself and his mobile home from the real property, and also quit claimed the property
to defendant, Wanda Borders Ellis, who was then Wanda Borders. Ms. Borders then made attempts
to remove plaintiff from the property and filed a criminal trespass warrant against the plaintiff. The
complaint alleges that the property was transferred to said Wanda Borders in an attempt to defraud
the court and the plaintiff and prays that the conveyance be set aside. Plaintiff avers that defendant
breached his contract with plaintiff by not transferring the property and prays that defendant be
required to specifically perform the contract.

         Alternatively, plaintiff seeks reimbursement for his labor and improvements on the real
estate, for the losses he incurred by moving from Arkansas and for the cost of moving his home to
another location. Alternatively, he prays that he be allowed to live on the property as long as he
pays the taxes.

        Defendants responded to the complaint by a motion to dismiss for failure to state a claim,
a motion to strike the allegations concerning the alleged fraudulent transfer, and an affirmative
defense of the statute of frauds. Defendants further answered the complaint by denying the material
allegations thereof as to an agreement. Defendants also filed a counter-complaint seeking
possession of the property and rental for the property from April 17, 1998 until plaintiff removes
himself from the property at the rate of $150.00 per month.

      A non-jury trial was held on September 27, 1999. Mr. Farley testified regarding the oral
agreement as follows:

                      But the property itself, I invested all the money into it.
               Charlie said, “Hey, you can put you a trailer up there. You can live
               there as long as want. I’m going to give you the property.
               Eventually, I’ll deed it in your name.”

                       Me and my wife eventually started having trouble, as far as
               the marriage and stuff. You know, it wasn’t nothing that we didn’t
               breeze through later on. But he told me - - the exact words he said
               is, “Hey, if ya’ll got a divorce, I don’t want a bunch of scallywags
               living up there, so right now I’m going to hang on to the deed.”

       Once it became apparent to Mr. Farley that he was not going to receive the deed, he
continued living on the property. Prior to the marriage of Ms. Borders to Ellis in June of 1999, Mr.
Farley was called to testify in a custody dispute regarding Ms. Borders’ child from a previous

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marriage. The nature of his testimony was that Ms. Borders was living with Ellis. Subsequent to
testifying, he received a letter from Ms. Rainwater, counsel for Ms. Borders, asking him to remove
himself from the property.

       Mr. Farley claimed to have spent fourteen thousand to fifteen thousand dollars in making
improvements to the property, however, he did not have documentation to verify that amount. He
stated that the improvements to the property at his expense include: a septic tank, a concrete
driveway, a water line, dozer work, grass seed, trees, a concrete pad, an outbuilding, concrete
sidewalks and molding. He also claims compensation for his labor in making these improvements.
Regarding the property taxes on the land, Mr. Farley estimates they were $22.23 before he moved
his trailer on the land and $232.00 after.

        Mrs. Dorothy Ellis next testified, stating that she wanted her son and his wife and child to
move to Crockett County. Charles Ellis said that they could have the place where Chris Farley now
resides. Mr. Ellis told her two times that he was going to deed the land to her son, but after they
had relocated, Mr. Ellis stated that he wanted to wait a while before changing the deed. Mr. Farley
and his wife worked very hard to make the land level and attractive. Dorothy Ellis further testified
that the terms of the agreement included that her son would receive the land, if he helped in taking
care of her, as she had suffered two nervous breakdowns. Barbara Froio, Mr. Ellis’s sister, testified
that before Mr. Farley moved from Arkansas, her brother told her sometime in 1993 or 1994 that
he had made a verbal agreement with Mr. Farley to give him a place to live.

        Mr. Wayne B. Parlow, owner of Parlow Realty Company and Parlow Appraisal Services,
testified on behalf of the defendants. Mr. Parlow stated that he had prepared an appraisal of the
5.62 acre tract of land deeded from Ellis to Ms. Borders on March 17, 1999, and determined that
the value of the land was $15,000.00. Mr. Parlow estimated that the market rental value of the
property was $150.00 per month, $1,800.00 annually.

         Mr. Charles Ellis testified on his own behalf, denying that he told Mr. Farley that he could
live on his land as long as he paid the taxes. He admits that he allowed Mr. Farley to live on the
land so that Dorothy Ellis’s grandchild could be near her, and stated that Mr. Farley never paid any
rent while living on the property. Mr. Ellis had no intention of reimbursing Mr. Farley for
improvements made on the land, because he benefitted from the improvements, as he was living
on the land. Mr. Ellis denies that he encouraged, or asked Mr. Farley to move from Arkansas, and
testified that he had no intention at any time of deeding the property to Mr. Farley. Mr. Ellis stated
that the only thing that he had communicated to Mr. Farley regarding the land was that “while he
was living there, he would pay the taxes. Not as long as you want to live there, no.” Mr. Ellis
testified that he conveyed the property to Ms. Borders in April of 1998, for the consideration of
$10.00, but denies that the conveyance had any relation to a court order mandating that Ms.
Borders’s daughter not reside or be left alone with Mr. Ellis. Ms. Borders testified that she is the
owner of the 5.62 acre tract and although she has no plans for the land, she wants Mr. Farley to
leave, because she would rather have the land vacant.



                                                 -3-
        On February 3, 2000, the trial court filed its decree which included finding of facts and
conclusions of law. The court found that in the summer of 1993, Mr. Ellis made an offer to plaintiff
that he would deed plaintiff land for a home in exchange for plaintiff relocating his family from
Arkansas to Crockett County, Tennessee, to help Mr. Ellis with his wife, Dorothy Ellis. The trial
court found that after one year, Mr. Farley accepted the offer, began improving the subject land, and
relocated his family. After Mr. Farley fulfilled his part of the agreement, Mr. Ellis refused to deed
the promised property to him, but told him he could remain on the property for as long as he paid
the property taxes. The court took judicial notice that Charles Ellis began a liaison with Wanda
Borders, and that she alleged that she was not living with Mr. Ellis, but staying in the camper trailer
outside of his residence. The trial court found that in 1998, Charles Ellis told Chris Farley that he
would have to move. Mr. Ellis subsequently transferred the property to Wanda Borders, following
the entry of an order forbidding Wanda Borders to bring her minor daughter on to the property of
Charles Ellis. The trial court found that Chris Farley had testified at a custody hearing that Wanda
Borders had been living with Charles Ellis. That court found a lack of credibility in the testimony
of Charles Ellis and Wanda Borders. Some time thereafter, Charles Ellis married Wanda Borders,
and Chris Farley continued to make improvement on the property. In addition, the trial court found
that although Charles Ellis denied that he made an offer to induce Chris Farley to move from
Arkansas to Tennessee, he had no creditable explanation as to why Chris Farley moved to this
property, and expended time and money to improve the land. The court found that Charles Ellis
was not a credible witness.

        The trial court found that plaintiff relied upon the promise of Mr. Ellis in moving his family
from Arkansas to Tennessee, and in spending a great deal of money on the subject property, and
that a valid contract existed between plaintiff and Mr. Ellis, based upon the theory of promissory
estoppel. The trial court stated in pertinent part:

                              The agreement between Charles Ellis and
                       Chris Farley violates the statute of frauds;
                       nevertheless, specific performance is appropriate
                       under the equitable estoppel doctrine. At this
                       juncture, justice and good conscience dictate that the
                       agreement, which Charles Ellis entered into with
                       Chris Farley should be enforced. The conveyance to
                       Wanda Borders Ellis is set aside as an attempt by
                       Charles Ellis and Wanda Borders to fraudulently
                       evade performing his contract with his former
                       stepson. Charles Ellis is ordered to deed the property
                       to Chris Farley as he agreed to do when he induced
                       him to move to Tennessee.

        Defendants have appealed and present five issues for review.

       Since this case was tried by the trial court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Unless

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the evidence preponderates against the findings, we must affirm, absent error of law. Tenn. R. App.
P. 13(d).

        The first issue for review as stated in defendants’ brief is:

                I. The trial court erred in taking judicial notice of matters not
                presented at trial.

        Defendants complain about the trial court’s following statements in the findings of fact:

                        The court takes judicial notice that at sometime between then
                and this hearing Charles Ellis began a liaison with Wanda Borders.
                At one point she alleged that she was not living with Charles Ellis
                but was staying in the camper trailer outside of his residence.

                       Charles Ellis told Chris Farley that he would have to remove
                himself from the property in 1998. After a hearing in this court
                where Wanda Borders was ordered not to take her minor daughter
                back to the home of Charles Ellis where the court found she had
                been living, Charles Ellis testified that he sold this property to
                Wanda Borders for ten dollars. In the custody hearing of Wanda
                Borders, Chris Farley had testified that she had been living with
                Charles Ellis. The court found a lack of credibility in the testimony
                of Charles Ellis and Wanda Borders.

        “The court cannot take judicial knowledge of a former suit in the same court. It must be
established by evidence.” (Citations omitted.) Hudson v. Shoulders, 22 Tenn.App. 301, 122
S.W.2d 817, 819 (1938).

        In Sutherland v. Sutherland, 831 S.W.2d 283 (Tenn. Ct. App. 1991), this Court said:

                        Courts may not take “judicial notice” of testimony in prior
                unrelated cases. Courts must decided cases on competent evidence
                introduced in the trial of the case. However, it may take judicial
                notice of certain facts which are common knowledge to all
                intelligent men. 29 Am.Jur.2d Evidence § 14 (1967). “[F]acts
                which are not judicially cognizable must be proved, even though
                known to the judge or to the court as an individual.” Id. at § 15.

Id. at 285.

         While it appears that the trial court erroneously took judicial notice of certain facts in a prior
case it appears from the record as a whole that the facts which the trial court noticed did not have
a bearing on the trial court’s decision in this case. Therefore, this issue is without merit.

                                                   -5-
       The second issue presented for review, as stated in appellants’ brief, is:

               II. The evidence preponderates against the trial court’s finding that
               defendant Charles Ellis had no credible explanation as to why
               plaintiff moved to the property at issue and spent time and money
               making it livable.

         The trial court merely stated in its findings of fact that “he [Ellis] had no credible
explanation why Chris Farley moved to this property and spent so much time and money on making
it livable. The court did not find Charles Ellis a credible witness.”

      Defendants point out in their brief that Ellis testified that plaintiff’s mother wanted him to
move and have the grandchild there and also that the plaintiff wanted to move to be with his mother.

         The transcript shows no factual basis for these statements, such as conversations with Farley
and similar testimony. Perhaps, the trial judge felt that this was Ellis’s impression. In any event,
the trial court considered the record as a whole and as the trier of fact must give the testimony the
weight, faith, and credit which it deserves. The trial court had the benefit of other explanations
made by Mr. Ellis concerning his dealings with plaintiff and was charged with the responsibility
of weighing that evidence, along with all the other evidence, to determine Mr. Ellis’s credibility.
We find no merit in this issue.

       The three remaining issues presented for review, as stated in appellants’ brief, are:

               III. The trial court erred in setting aside the conveyance from
               defendant Charles Ellis to defendant Wanda Borders Ellis.

               IV. The trial court erred in concluding that plaintiff had an
               enforceable parol contract for the sale of land in violation of the
               statue of frauds and ordering defendant Charles Ellis to deed the
               property to plaintiff.

               V. The trial court erred in refusing to grant the relief sought in
               defendants’ counter-complaint.

       We believe these three issues can be combined into a single issue:

               Whether the trial court erred in ordering the specific performance of
               the alleged oral contract, and, if so, whether plaintiff is entitled to
               any relief.

       Charles and Wanda Ellis contend that, assuming that there existed an oral contract, as
alleged by plaintiff, such contract would be in violation of the statue of frauds, and therefore


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unenforceable. Defendants contend that under Tennessee law, such a contract is voidable at the
election of either party. Once an oral contract is disaffirmed, neither specific performance, nor
damages are available. They further argue that the alleged oral contract is not enforceable, as it did
not contain the essential terms or mutuality of obligation. Defendants assert that Mr. Farley realized
a profit of $15,000.00 by selling his property and moving from Arkansas to Tennessee to be closer
to his mother at her request. Furthermore, after Charles and Dorothy Ellis divorced, there was no
longer a reason for Chris Farley to live on the property.

        The Tennessee statute of frauds prohibits the enforcement of contacts for the sale of land
unless the promise or agreement is in writing, and signed by the party to be charged. See T. C.A.
§ 29-2-101(5). Tennessee appellant courts continuously have denied enforcement of an oral
contract for the sale of land on the basis of part performance, making it the rule in this state that part
performance of an oral contract for the sale of land will not take the agreement out of the statute of
frauds. Baliles v. Cities Service Co., 578 S.W.2d 621, 624 (Tenn. 1979) (citing Knight v. Knight,
222 Tenn. 367, 436 S.W.2d 289 (1969); and Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767
(1905)). The statue of frauds is designed “to reduce contracts to a certainty, in order to avoid perjury
on the one hand and fraud on the other.” Price v. Tennessee Products & Chemical Corporation,
53 Tenn. App. 624, 385 S.W.2d 301 (1964). Therefore, to comply with the statute of frauds, such
agreement must show, with reasonable certainty, the material terms intended by the parties to the
sale. See Johnson v. Haynes, 532 S.W.2d 561 (Tenn. Ct. App. 1975), (“The memorandum must
contain the essential terms of the contract expressed with such certainty that they may be understood
from the memorandum itself or some other writing to which it refers or with which it is connected
without resort to parol evidence.”) Id. at 565. To comply with the statute of frauds, the
memorandum agreement to sell real estate must show with reasonable certainty the estate intended
to be sold. See Baliles at 623.

        In exceptional cases, the application of the doctrine of equitable estoppel has been used to
mitigate the harshness of this rule, “where to enforce the statute of frauds would make it an
instrument of hardship and oppression, verging on actual fraud.” Baliles, 578 S.W. 2d 624 (citing
Covington v. McMurray, 4 Tenn. C.C.A. 378 (1913); and Gheen v.Osborn, 58 Tenn. 61 (1872).
See also Decherd v. Blanton, 35 Tenn. 373 (1855); Williams v. Conrad, 30 Tenn. 412 (1850);
Bloomstein v. Clees Brothers, 3 Cooper’s Tenn. Ch. 433 (1877); and Interstate Co. v. Bry-Block
Mercantile Co., 30 F2d 172 (D.C.W.D. Tenn.) (1928)).

        The record in the instant case is devoid of proof of the material terms of any agreement to
convey the real estate, including, but not limited thereto, the terms of the performance, price, if any,
and the specific property covered by the alleged agreement. Mr. Farley’s own testimony tended to
negate a certain oral agreement for conveyance of the title to the property. Under the state of this
record, the doctrine of equitable estoppel cannot be used to order a conveyance of the property. To
do so would be in effect making a contract for the parties. Courts do not make contracts; they only
interpret and enforce them. See Turner v. Zager, 363 S.W.2d 512, 519 (Tenn. Ct. App. 1962).
However, Mr. Farley is not without relief. The proof demonstrates that Mr. Farley was granted a
license to enter and occupy some of Ellis’s property for as long as he wished if he paid the property


                                                   -7-
taxes. We distinguish Mr. Farley’s right from a lease, as he was granted permission by Mr. Ellis
under their agreement which was not a leasehold.

       “A ‘license’, with respect to real estate, is an authority to do a particular act or series of acts
on another’s land without possessing any estate therein.” Barksdale v. Marcum, 7 Tenn. App. 697,
708, cert, den., (1928).

        In Heiskell v. Cobb, 58 Tenn. 638 (1872) the Court held an oral agreement enforceable that
allowed the plaintiff to erect a milldam which flooded a section of the adjacent land owned by the
defendant, where the defendant not only encouraged the plaintiff to build the dam, but also assisted
in its construction, and acquiesced in the use of the dam for several years. The Heiskell Court
stated:

                If one enters upon the land of another by virtue of a parol license,
                given for a consideration, and erect fixtures, such license becomes
                irrevocable.

Id. at 639.

        In Daugherty v. Toomey, 222 S.W.2d 195, 196 (Tenn. Ct. App. 1949) the parties owned
adjoining property and orally agreed to build a wall near the property line to serve as a shared
garage wall. The wall, and part of the defendants’ garage, were on the plaintiffs’ property, a fact
of which the plaintiffs were aware. Id. Several years after the wall was built, the plaintiffs sought
to require the defendants to remove that part of their garage located on the plaintiffs’ property. Id.
The trial court decision, denying plaintiffs’ request, and applying the doctrine of equitable estoppel
was affirmed on appeal. The Daugherty Court quoted the following from 53 C.J.S., Licenses § 90:

                Where the licensee has acted under the license in good faith, and has
                incurred expense in the execution of it, by making valuable
                improvements or otherwise, it is regarded in equity as an executed
                contract and substantially an easement, the revocation of which
                would be a fraud on the licensee, and therefore the licensor is
                estopped to revoke it, particularly where the licensor joins in the
                enterprise and accepts the benefits of the licensee’s labor and
                expense; and the rights of the licensee will continue for as long a
                time as the nature of the license calls for. It has also been held that
                the license cannot be revoked without reimbursing the licensee for
                his expenditures or otherwise placing him in statu quo.

Dougherty, 222 S.W.2d at 196 (emphasis added). The Court also stated that the plaintiffs had
acquired an estimate of the cost to move and rebuild defendants garage, yet they had made no offer
to pay the expense, or to reimburse the defendants. Therefore, the Court reasoned, it would be a
manifest inequity to grant the plaintiffs the sought relief. Id. at 197.


                                                   -8-
       In Lee Highway & Associates, L.P., v. Pryor Bacon Company, supra, the Eastern Section
 of this Court held that a license for a right of access could be revoked “without working a fraud on
the plaintiff provided the defendant fully reimburses the plaintiff for the monies it expended in
building the cut-through.” Id. at *5.

        In the instant case, the record indicates that Charles Ellis gave Chris Farley permission to
enter and occupy the subject property for as long as he wished, as long as he paid the taxes. We
agree with the trial court that the consideration provided by Mr. Farley pursuant to his agreement
was that he “move his home in Arkansas to Crockett County, Tennessee to help Charles Ellis care
for Dorothy Ellis.” However, we believe the evidence preponderates against the trial court’s finding
that the agreement was an oral contract for the sale of land. Instead, we believe that Mr. Ellis
granted Mr. Farley a license, allowing Mr. Farley to occupy the property in exchange for the
consideration he provided, as long as he paid the taxes. The record shows that upon Mr. Ellis’s
representations, Mr. Farley moved his family to Crockett County, taking up residence on the
property adjacent to the home of Charles and Dorothy Ellis. Mr. Farley paid the property taxes from
1994 though 1997, while Charles Ellis owned the property. He attempted to meet the condition of
his occupancy by mailing a check to Wanda Ellis for the 1998 property taxes, however, was
prevented from fulfilling his obligation in 1998, as she returned the check.

        Based on the trial court’s findings which are supported by the record and under the above
authorities, Mr. Ellis is estopped from removing Mr. Farley from the property without proper
reimbursement for the damages lawfully due. When parties would be estopped, their heirs and
privies in estate are also estopped. See LaRue v. Greene County Bank, 179 Tenn. 394, 166 S.W.2d
1044, 1052 (1942) and Heiskell v. Cobb, 58 Tenn. 638 (1872). Therefore, although it was Mr. Ellis
that granted a license to Mr. Farley, Wanda Ellis, as the present owner of the property, is estopped
to revoke Mr. Farley’s license without tendering reimbursement to Mr. Farley for his expenditures
for permanent improvements on the land.

        In his complaint, Mr. Farley sought the alternative relief of damages to reimburse him for
his labor and the material purchased in making permanent improvements to the property as well as
his moving expenses. Although Mr. Farley claims that he spent somewhere between $15,000 and
$16,000 in improving the land, the record does not establish the value of the improvements on the
land. It appears that Mr. Farley and his wife did much of the work themselves and were able to
trade some of the materials. Mr. Farley should not receive reimbursement for the property taxes
paid nor for his relocation expenses, as these appear to be part of the licensing agreement. Also,
no additional rent is due Mr. and Mrs. Ellis, as he provided the consideration agreed to and when
requested to vacate the premises, he was not tendered reimbursement for the improvements made.
The case should be remanded to the trial court for a determination of damages based upon the value
of the permanent improvements to the land.

        The decree of the trial court setting aside the deed of the property to defendant Wanda Ellis
is reversed, and that part of the decree ordering Charles Ellis to deed the property to Chris Farley
is reversed. The decree is modified to order that the plaintiff and counter-defendant, Chris Farley,


                                                -9-
remove his mobile home and vacate the property upon reimbursement by Wanda Ellis for the
permanent improvements made to the property by Mr. Farley. The case is remanded to the trial
court for further proceedings to determine the value of the permanent improvements made to the
property by Mr. Farley. Costs of the appeal are assessed one-half to Chris Farley and his surety and
one-half to counter-plaintiffs, Charles Ellis and Wanda Ellis, and their surety.


                                            __________________________________________
                                            W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                              -10-
