                                                                                       04/20/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 22, 2017 Session

                PEGGY PATTERSON v. SHANE PATTERSON

                 Appeal from the Circuit Court for Cannon County
                    No. 15-CV-16        J. Mark Rogers, Judge
                     ___________________________________

                           No. M2016-00886-COA-R3-CV
                       ___________________________________

Stepmother filed a detainer warrant against Stepson and was awarded possession of the
real property in the general sessions court. Stepson appealed to the circuit court, and a
bench trial was conducted. The trial court awarded the property to Stepmother. We affirm
the trial court’s finding that no resulting trust was proven. Although we affirm the trial
court’s finding of unjust enrichment for the improvements on land based on the three-part
test under Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn.
2005), we reverse the trial court’s award of $37,000.00 to Stepson for the improvements
to the property because Stepson failed to prove the correct measure of damages at trial.
Affirmed in part, reversed in part, and remanded.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON and KENNY ARMSTRONG, JJ., joined.

Joshua A. Jenkins, Murfreesboro, Tennessee, for the appellant, Peggy Patterson.

B. Nathan Hunt, Clarksville,, Tennessee, for the appellee, Shane Patterson.


                                       OPINION

                                     BACKGROUND

       Plaintiff/Appellant Peggy Patterson (“Stepmother”) and her husband Milburn
Wayne Patterson (“Father,” and, together with Stepmother, “Homeowners”) bought the
subject real property located at 1429 Mingle Hollow Road, Woodbury, Tennessee,
(“property”) on December 11, 2003. It is undisputed that Homeowners contributed the
down payment on the property, the deed to the property is in the Homeowners’ names,
and that Defendant/Stepson Shane Patterson (“Stepson”), Father’s son from a prior
relationship, did not contribute to the down payment. It is also undisputed that Stepson
was allowed to live on the property at some point after the purchase of the property and
that Stepson was to pay the monthly mortgage, homeowners’ insurance, property taxes,
and utilities, which were all in the Homeowners’ names. The circumstances surrounding
this agreement, however, are sharply disputed. To further complicate matters, Father
passed away in March 2015.

       Following Father’s death, Stepmother filed a detainer warrant in the Cannon
County General Sessions Court seeking to regain possession of the property, and a
detainer summons was issued on May 14, 2015. After a hearing on July 7, 2015,
Stepmother was awarded possession of the property. Stepson timely appealed to the
Cannon County Circuit Court (“trial court”) and deposited a $7,885.80 cash bond to
“secur[e] payment of mortgage payments of [twelve] months[.]” Sometime in August
2015, Stepson filed an answer and counter-complaint. Although Stepson acknowledged
that only the Homeowners’ names are on the deed to the property, Stepson denied that
Stepmother was entitled to possession of the property. According to Stepson, the parties
and Father entered into an agreement prior to the purchase of the property, wherein
Homeowners would purchase the property and Stepson would be responsible for the
mortgage, property taxes, utilities, and insurance, with the understanding that the
property would eventually be conveyed to Stepson.1 As a result, Stepson requested that
the trial court impose a constructive trust on the property and transfer ownership to
Stepson subject to the remaining mortgage balance. In addition, Stepson asserted that he
made “all payments” on the mortgage and the property taxes and therefore was entitled to
credit or offset of those amounts.2 In addition, Stepson attached Father’s purported will,
which appeared to devise the property to Stepson. Stepson further alleged that, if the trial
court declared Stepmother to be owner of the property, Stepmother would be unjustly
enriched because Stepson made repairs and improved the property. Stepson later was
allowed to amend his counter-complaint to add a claim for resulting trust based on his
payments of the mortgage, property taxes, utilities, and insurance.

       On August 26, 2015, Stepmother answered the counter-complaint, denying all
material allegations, and sought to dismiss Stepson’s counter-complaint. Stepmother
alleged that Father could not have conveyed the property to Stepson by will because she,
as a tenant by the entirety, was entitled to the property after Father’s death. Stepmother

       1
          The terms of the arrangement are unclear. Based on our review of Stepson’s testimony at trial,
Stepson’s obligation appears to be that he would make these payments directly to the companies.
        2
          Later in the counter-complaint, Stepson conceded that Father made a few mortgage payments
when Stepson experienced financial hardship. However, Stepson contended that all of those payments
had been reimbursed. Despite later testimony by Todd Patterson, Stepson’s brother (“Brother”), that he
also assisted Stepson in making some payments toward the property, Stepson does not mention any
purported payments by Brother on behalf of Stepson in his pleadings.
                                                 -2-
further alleged that Stepson was barred by the statute of frauds from pursuing any action
to enforce the alleged contract to deed Stepson the property.

        A bench trial was held on February 8, 2016. The testimony at trial generally
concerned (1) whether Homeowners purchased the property for Stepson’s benefit and
with the intent to eventually convey it to Stepson; and (2) who actually made the required
payments over the years on the property, such as the mortgage, property taxes, utilities,
and insurance. The evidence on these issues is largely conflicting. Stepmother first
testified that she and Father bought the property after learning about it from a family
friend and introduced into evidence a warranty deed that conveyed the property to her
and Father. According to Stepmother, she and Father discussed the purchase “quite a bit”
but that, because she suffered a stroke, Father bought the property in their names while
she was at the hospital. Stepmother denied that Stepson contributed any amount toward
the down payment. Stepmother also noted that Stepson did not participate in the closing
and denied the existence of any agreement purporting to convey Stepson the property.
After Homeowners purchased the property, Stepmother testified that the property “just
sat there” but that eventually Stepson was allowed to live on the property in exchange for
his payment of the mortgage, property taxes, utilities, and insurance.

       Stepmother’s testimony regarding the mortgage payments for the property was
conflicting. Initially, Stepmother contended that the Homeowners “always paid” the
mortgage then immediately conceded that Stepson made “a few payments” while he was
living at the property. Stepmother later conceded, however, that Stepson made “[m]aybe
four or five” mortgage payments. Stepmother mentioned that Stepson’s failure to make
the payments was due to the fact that he was not employed. Stepmother did not mention
in her testimony any mortgage payments purportedly made by Brother on Stepson’s
behalf. In any event, Stepmother again denied that Stepson had ever reimbursed
Homeowners for any mortgage payments.

        Stepmother’s testimony regarding the other financial obligations on the property
was more consistent. For example, Stepmother testified that the utilities, property tax
records, and homeowners’ insurance were either in Father’s name or in the Homeowners’
names. With respect to the homeowners’ insurance, Stepmother testified that Father made
those payments before he passed away but that Stepson took over the payment
obligations after Father’s death. Stepmother agreed, however, that Stepson paid for all of
the utilities and homeowners’ insurance for several years but that he stopped making the
insurance payments one and one-half years before trial. Stepmother further testified that
Homeowners “pa[id] [the property taxes] every year” for the subject property.

      When asked whether Stepmother had “any knowledge” of any repairs or
improvements made to the property by Stepson, Stepmother responded that she “[didn’t]
know of any.” Stepmother contended that Father “put up a barn” and made repairs and

                                          -3-
improvements “until he got ill.” Stepmother denied asking Stepson to make any repairs
and denied that Stepson ever requested that Stepmother pay for the improvements.

        Stepson’s testimony sharply conflicted with Stepmother’s with regard to the
ownership of the property. First, Stepson testified that he was renting a trailer in
Murfreesboro prior to 2003 but that he desired to own land in Cannon County. Because
of his bad credit, however, Stepson testified that Homeowners, Stepson, and Brother, had
a meeting to discuss an arrangement whereby Homeowners would purchase property for
Stepson’s use and benefit. According to Stepson, Homeowners agreed to help Stepson
co-sign for the property with the understanding that if Stepson paid the mortgage,
property taxes, utilities, and insurance, that the property would eventually be his;
however, Stepson admitted on cross-examination that he did not sign any documents
obligating him to make those payments on the property or obligating Homeowners to
eventually transfer the property to Stepson. Shortly after the meeting, a family friend
informed the parties about a property in Cannon County that was up for sale. Stepson
testified that he did not participate in the closing of the property because he was working.
Stepson believed that the down payment on the property was a gift because Father helped
Brother open a bail bonding business by gifting him approximately the same amount as
the down payment to the property. Stepson also denied that the property was unoccupied
subsequent to the purchase; rather, Stepson asserted that he moved in shortly after the
purchase in December 2003.

        Again, the subject of who made payments toward the financial obligations on the
property was a subject of much discussion during Stepson’s testimony. According to
Stepson, he paid nearly all of the mortgage payments. At times, however, Stepson
testified that he required financial assistance. In those situations, Stepson stated that he
would ask Father for help, Father would make the payments, and Stepson would
promptly reimburse Father for the payments. Stepson estimated that he received such
help approximately eight times over the years. Stepson testified, however, that he did not
reimburse Father for two of these payments, one of them being a gift for Stepson’s
birthday.3 Despite Brother’s later testimony that he also helped Stepson make some
mortgage payments, Stepson did not mention these purported payments during his
testimony.

       Stepson testified that he made every property tax payment but that he called and
canceled the check he wrote for tax year 2014 after Stepmother reneged on the purported
agreement. As support for the payments, Stepson introduced some, but not all, of the
receipts for the mortgage payments, property tax payments, the utility payments, and the



       3
         Although not explicitly stated, Stepson appears to have failed to reimburse Father on the
remaining payment.
                                              -4-
insurance payments that he paid directly to the companies, but he admitted on cross-
examination that the majority of the receipts do not show who made those payments.4

        Stepson testified that he made the house on the property habitable by undertaking
numerous repairs over the years, costing him approximately $1,500.00. Stepson also
testified to several other improvements, such as a chicken coop project, costing him
approximately $7,000.00/$8,000.00.5 In addition, Stepson testified that he cleared the
property and dug a pond, at a cost of approximately $500.00 in fuel for the bulldozer and
$300.00 in bentonite.6 Stepson also stated that the cost of the new horse barn he built
was approximately $22,000.00 to $23,000.00. Stepson admitted that Stepmother never
asked him to make any repairs or improvements to the property and that Stepson did not
expect to be paid for his efforts.

       Brother testified that Father withdrew some money out of his 401(k) to help
Brother with a bail bonding business by contributing $50,000.00. Out of fairness,
Brother testified that Father helped Stepson with the down payment to the property.
Brother corroborated Stepson’s testimony that, because of Stepson’s bad credit, Stepson
sought help from the Homeowners. Brother testified that a discussion occurred one
month prior to the purchase of the property wherein the Homeowners agreed to help
Stepson purchase the property upon the condition that Stepson would pay for all of the
mortgage, property taxes, utilities, and insurance. According to Brother, Father at some
point wished to quitclaim his interest in the property to Stepson when he realized that
Stepmother would not honor the agreement to convey Stepson the property; however
Father’s efforts to ensure that Stepson would receive the property ultimately failed. To
Brother’s knowledge, Stepson made all of the payments that Stepson was required to pay
under the purported agreement. Brother noted, however, that shortly before Father’s
death, Brother made two mortgage payments on behalf of Stepson. Brother indicated that
Stepson “paid me most of that money back.”

      Murphy Smiley, Stepson’s nephew and Stepmother’s grandson, and Brittany Slate,
Stepmother’s granddaughter, generally testified about the strained relationship between
Stepmother and Stepson. According to Mr. Smiley, the hostility stemmed from
Stepmother most of the time. On Stepmother’s good days, Mr. Smiley testified that
Stepmother’s attitude toward Stepson’s entitlement to the property vacillated, often
expressing conflicting beliefs as to whether Stepson should be permitted to remain on the

        4
         Although most of the receipts, such as the mortgage payments, do not indicate who made the
payments, two of the property tax payments, for the years 2008 and 2009, indicate that they were paid by
“Steven Patterson” by check. Stepmother admits that “Steven Patterson” is Stepson.
       5
         Initially, Stepson estimated the cost to be approximately $7,000.00, but when he was asked a
second time, he estimated the cost to be approximately $8,000.00. As is evident, the trial court
mistakenly considered these figures as costs for separate projects.
       6
         “[B]entonite” is “[a] silicate clay formed from volcanic ash and used in various adhesives and
cements.” The American Heritage College Dictionary 132 (4th ed. 2002).
                                                 -5-
property. Mr. Smiley, however, denied that Stepmother ever discussed who owned the
property. Ms. Slate generally testified that Stepmother was a truthful person.

       At the conclusion of trial, the trial court issued oral findings and rulings and
declared that all of the witnesses were credible.7 On March 21, 2016, the trial court
entered a written order. The trial court found that Stepmother was entitled to possession
of the property, that Stepmother was unjustly enriched by the repairs and improvements
that Stepson made to the property, and that Stepson failed to prove the existence of either
a constructive or resulting trust. As a result, the trial court ordered that Stepmother pay
Stepson an amount totaling $37,000.00, which represented the following:

      ITEM                                                                        AMOUNT
      1. Chicken Coop Repairs                                                     $7,000.00
      2. Barn Wrapped Tin Work                                                    $8,000.00
      3. Horse Barn                                                               $22,000.00
      TOTAL:                                                                      $37,000.00

The trial court specifically found, however, that these improvements did not increase the
actual value of the property. Finally, the trial court ordered that Stepmother be awarded
$3,381.17 from Stepson’s cash bond, which amount represented the unpaid property
taxes for tax years 2014 and 2015, prorated amounts for the January 2016 and February
2016 property taxes, and the 2015 homeowner’s insurance premium paid by Stepmother.
The remaining cash appeal bond was ordered to be returned to Stepson.

                                                    ISSUES

       Stepmother raises the following issues for our review, which we have taken from
her brief and slightly restated:

      1.     Whether Stepson failed to prove that he expected to be compensated,
      and therefore, unjust enrichment does not exist.
      2.     In the alternative, whether the trial court erred in its calculation of
      damages for Stepson’s unjust enrichment claim.


      7
          Specifically, the trial court stated as follows:

                         So if an appellate court is reviewing this, I—oftentimes I’ll make
                 findings that someone’s credibility has been called into question, or
                 they’re just not credible, but I don’t find that with regard to any of the
                 parties and the witnesses in this case. They just have different
                 perspectives about what happened, when it happened, and what is to be
                 drawn from that. I tend to give everyone the benefit of the doubt, and
                 everyone trying to put their best foot forward on their own testimony.
                                                      -6-
Stepson raises the following additional issues:

       1.      Whether the trial court erred in not awarding Stepson the value of
       the benefit he conferred upon Stepmother with respect to the real property
       at issue.
       2.      Whether the trial court erred in finding that Stepson had not proven a
       resulting trust in favor of Stepson with respect to the real property at issue.

                                  STANDARD OF REVIEW

       The trial court heard this case sitting without a jury. Accordingly, we review the
trial court’s findings of fact de novo with a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of
correctness, however, attaches to the trial court’s conclusions of law, and our review is de
novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27
S.W.3d 913, 916 (Tenn. 2000)). Additionally, the trial court’s findings on credibility,
whether express or implicit, are entitled to great deference on appeal. See Taylor v.
McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App.
Aug. 5, 2008). Where the trial court’s factual determinations are based on its assessment
of witness credibility, this Court will not reevaluate that assessment absent clear and
convincing evidence to the contrary. Franklin Cnty. Bd. of Educ. v. Crabtree, 337
S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002)).

                                       DISCUSSION

                                     Resulting Trust

        We first address Stepson’s issue of whether the trial court erred in finding that a
resulting trust had not been created. This Court reviews the issue of whether a resulting
trust has been formed de novo with no presumption of correctness. Story v. Lanier, 166
S.W.3d 167, 184 (Tenn. Ct. App. 2004). A resulting trust has been defined as follows:

       Resulting trusts are those which arise where the legal estate is disposed of,
       or acquired, without bad faith, and under such circumstances that Equity
       infers or assumes that the beneficial interest in said estate is not to go with
       the legal title. These trusts are sometimes called presumptive trusts, because
       the law presumes them to be intended by the parties from the nature and
       character of their transactions. They are, however, generally called resulting
       trusts, because the trust is the result which Equity attaches to the particular
       transaction.


                                            -7-
Smalling v. Terrell, 943 S.W.2d 397, 400 (Tenn. Ct. App. 1996) (quoting Gibson’s Suits
in Chancery § 382 (Inman, 7th ed. 1988)). As the Tennessee Supreme Court has stated:

               The imposition of a resulting trust is an equitable remedy; the
       doctrine of resulting trust is invoked to prevent unjust enrichment. Such a
       trust is implied by law from the acts and conduct of the parties and the facts
       and circumstances which at the time exist and surround the transaction out
       of which it arises. Broadly speaking, a resulting trust arises from the nature
       or circumstances of consideration involved in a transaction whereby one
       person becomes invested with a legal title but is obligated in equity to hold
       his legal title for the benefit of another, the intention of the former to hold
       in trust for the latter being implied or presumed as a matter of law, although
       no intention to create or hold in trust has been manifested, expressly or by
       inference, and there ordinarily being no fraud or constructive fraud
       involved.

               While resulting trusts generally arise (1) on a failure of an express
       trust or the purpose of such a trust, or (2) on a conveyance to one person on
       a consideration from another—sometimes referred to as a “purchase-money
       resulting trust”—they may also be imposed in other circumstances, such
       that a court of equity, shaping its judgment in the most efficient form, will
       decree a resulting trust—on an inquiry into the consideration of a
       transaction—in order to prevent a failure of justice. However, the particular
       circumstances under which a resulting trust may arise varies from
       jurisdiction to jurisdiction.

In re Estate of Nichols, 856 S.W.2d 397, 401 (Tenn. 1993) (quoting 76 Am. Jur. 2d
Trusts § 166, pp. 197–98 (1992)). However, the overriding principle pertaining to
resulting trusts is that “the trust must arise at the time of the purchase, attach to the title at
that time and not arise out of any subsequent contract or transaction.” In re Estate of
Jones, 183 S.W.3d 372, 379 (Tenn. Ct. App. 2005) (quoting Livesay v. Keaton, 611
S.W.2d 581, 584 (Tenn. Ct. App. 1980)); see also Frazier v. Pomeroy, No. M2005-
00911-COA-R3-CV, 2006 WL 3542534, at *13 (Tenn. Ct. App. Dec. 7, 2006); Smalling
v. Terrell, 943 S.W.2d 397, 400 (Tenn. Ct. App. 1996).

        Resulting trusts can be proven by parol evidence, Smalling, 943 S.W.2d at 400
(citing Estate of Wardell, 674 S.W.2d at 295; Bright v. Bright, 729 S.W.2d 106, 110
(Tenn. Ct. App. 1986)), with the following caveat:

       A trust may rest upon parol agreement where the declaration of trust is
       made prior to or contemporaneous with the transfer of the interest in realty.
       Tansil v. Tansil, 673 S.W.2d 131, 132 (Tenn. 1984). Ordinarily, the
       testimony of a single, interested witness would not be sufficient to establish
                                            -8-
       a trust by clear, cogent and convincing evidence. King v. Warren, 680
       S.W.2d 459 (Tenn. 1984).

St. Clair v. Evans, 857 S.W.2d 49, 51 (Tenn. Ct. App. 1993). “The parol testimony [may
be] admitted, not to show an agreement to purchase for another, but to show that the
purchase money was paid by the party claiming, notwithstanding the deed was taken in
the name of another person.” Justice v. Henley, 27 Tenn. App. 405, 410, 181 S.W.2d
632, 634 (Tenn. Ct. App. 1944) (quoting Perkins v. Cheairs, 61 Tenn. 194, 201 (Tenn.
1872)). Additionally, this Court has stated the following:

       “A trust results from the acts, and not from the agreements, of the parties,
       or rather from the acts accompanied by the agreements; but no trust can be
       set up by mere parol agreements, or, as has been said, no trust results
       merely from the breach of a parol contract; as if one agrees to purchase land
       and give another an interest in it, and he purchases and pays his own
       money, and takes the title in his own name, no trust can result.” 1 Perry on
       Trusts, (4 Ed.), sec. 134.

       “It is a familiar rule that a trust must result, if at all, at the instant the deed
       is taken and the legal title vests in the grantee. No oral agreements, and no
       payments before or after the title is taken, will create a resulting trust,
       unless the transaction is such that, at the moment the title passes, a trust will
       result from the transaction itself. There must be an actual payment from a
       man’s own money, or what is equivalent to payment from his own money,
       to create a resulting trust.” Clark v. Timmons et al. (Tenn. Chy. App.), 39
       S. W., 534, 535.

Walker v. Walker, 2 Tenn. App. 279, 291 (1925). In other words, “a mere parol promise
or an agreement by one person to purchase land and give another an interest therein”
cannot give rise to a resulting trust. Greene v. Greene, 272 S.W.2d 483, 488 (1954).
Rather, “[t]he trust arises, if at all, from the fact of payment of the consideration by the
cestui que trust,[8] and not from any agreement of the parties.” Walker v. Walker, 2
Tenn. App. 279, 291 (1925). “Moreover, it must be shown that the beneficiary actually
made payment, or incurred an absolute obligation to pay, as part of the original
transaction of purchase.” Rowlett v. Guthrie, 867 S.W.2d 732, 735 (Tenn. Ct. App. 1993)
(citing Livesay v. Keaton, 611 S.W.2d 581, 584 (Tenn. App.1980)).




       8
           A “cestui que trust” means “[s]omeone who possesses equitable rights in property[.]” Black’s
Law Dictionary (10th ed. 2014). “[A]n alternative name for the beneficiary is ‘cestui que trust,’ an
elliptical phrase meaning ‘he [for] whose [benefit the] trust [was created].’” Id. (quoting Glanville
Williams, Learning the Law 10 (11th ed. 1982).
                                                 -9-
       At the outset, we note that Stepson’s testimony that an agreement had taken place
prior to the purchase of the property may not be used to establish a resulting trust. See
Greene, 272 S.W.2d at 488. Rather, his testimony that he actually incurred an obligation
to pay at the time of the purchase of the property would be relevant to support his claim.
Stepson does not dispute that he did not contribute to the down payment, did not
participate in closing, and did not sign any agreement obligating him to pay for the
property. Thus, the issue becomes whether Stepson met his burden of proving a resulting
trust based only on his testimony, and Brother’s testimony, that he incurred an obligation
to pay based on a purported agreement with Homeowners prior to the purchase of the
property.

        Here, in its written order, the trial court found that Stepmother and Father “used
their own money to make the $50,000.00 down payment to purchase the property” and
that Stepson “did not participate in the purchase or closing of the [p]roperty and did not
furnish consideration for the purchase of the property.” As explained by the trial court in
its oral rulings:

              Now, I understand the theory. The theory is: Well, I didn’t pay the
       money up front that I had promised. But I find that [Stepson], on the day
       that he said he promised, that if he chose never to make a first payment,
       there was nothing they can do about it. They couldn’t sue him. They
       couldn’t hold him to his promise. I just don’t think any of the evidence
       established the necessary factors for this [c]ourt to impose . . . a resulting
       trust.
              And really what all that comes down to is trying to get around the
       Statute of frauds, because there is no writing memorializing that [Stepson]
       was acquiring any interest in [the property] when it was purchased by
       [Father] and [Stepmother], none whatsoever. And—and it’s an effort to get
       around what is obviously a very difficult problem. And the burden of proof
       being such that I just don’t feel like [Stepson] established any basis for that,
       notwithstanding his testimony or the testimony of [Brother].

As a result, the trial court concluded that “a resulting trust has not been proven by the
evidence.”

         Still, Stepson cites Little v. Watson, No. M2001-00230-COA-R3-CV, 2002 WL
31467471 (Tenn. Ct. App. Nov. 6, 2002), arguing that the instant case is “the same” as
the situation in Little, where a resulting trust was found to have been created. In Little,
although the plaintiffs did not contribute to the down payment on the property, it was
undisputed that defendants purchased the house to “help out” plaintiffs, who could not
obtain financing and that the plaintiffs made every mortgage payment for a number of
years. Id. at *1. In a suit between the plaintiffs and defendants for ownership of the
property, the trial court found that a resulting trust had been formed in favor of plaintiffs.
                                             - 10 -
The Court of Appeals affirmed, stating that “the critical inquiry is whether the [h]ouse
was purchased by the [defendants] for the [plaintiffs] with the understanding, at the time
of the purchase, that the [plaintiffs] would pay for the [h]ouse.” Id. at *5. The Court of
Appeals concluded that plaintiffs proved by clear and convincing evidence that a
resulting trust had been created in plaintiffs’ favor:

       The undisputed, and therefore clear and convincing, evidence herein is that
       the [plaintiffs] made all mortgage and insurance payments on the [h]ouse
       for ten years and made those payments directly to the mortgage and
       insurance companies. Thus, we conclude that the [plaintiffs] paid
       consideration for the purchase of the [h]ouse. It is also undisputed that the
       [defendants] bought the [h]ouse for the [plaintiffs] to live in and solely
       because the [plaintiffs] could not obtain financing at that time. The parties’
       conduct and the circumstances surrounding the purchase are consistent with
       an understanding that the [defendants] purchased the House for the benefit
       of the [plaintiffs]. Had the [plaintiffs] been able to obtain financing in 1989,
       the [h]ouse would have been bought by them and they would have made
       the same contribution to consideration for the [h]ouse except for the down
       payment and closing costs. The parties’ conduct for nine years after the
       purchase is consistent with an understanding that the [plaintiffs] had a
       beneficial interest in the [h]ouse.

Id. at *7.

        Unlike Little, however, the parties’ accounts surrounding the purchase of the
property in this case are sharply contested, rather than undisputed. When the material
facts surrounding the purchase are in dispute, this Court typically requires that the party
claiming a resulting trust either contribute to the initial payment of the purchase price or
incur an absolute legal obligation to pay at the time of the purchase of the property. See,
e.g., Frazier v. Pomeroy, No. M2005-00911-COA-R3-CV, 2006 WL 3542534, at *13–14
(Tenn. Ct. App. Dec. 7, 2006) (noting that, although defendants contributed more toward
the initial purchase of the property, plaintiffs’ contributions toward the closing costs and
mortgage payments constituted clear and convincing evidence that a resulting trust was
created in favor of plaintiffs); Keeton v. Daniel, No. M2005-01199-COA-R3-CV, 2006
WL 2818238 (Tenn. Ct. App. Oct. 2, 2006) (holding that the claimant’s incurrence of “an
absolute obligation to pay as part of the original transaction of purchase” by co-signing a
loan is “by itself sufficient to establish a resulting trust” despite the fact that the house
was inadvertently titled in only the decedent’s name); In re Estate of Jones, 183 S.W.3d
372, 379 (Tenn. Ct. App. 2005) (holding that widow’s contributions to the property after
decedent’s purchase of the property, such as mortgage payments and improvements to the
property, do not establish a resulting trust because nothing in the record suggested that
her interest in the property was contemplated at the time of the purchase); Roach v.
Renfro, 989 S.W.2d 335, 340 (Tenn. Ct. App. 1998) (concluding that plaintiff’s resulting
                                            - 11 -
trust theory was without merit when “she stipulated that she did not provide any payment
for” the property at issue and offered no proof showing that defendant intended to set up
a trust in plaintiff’s favor); Livesay v. Keaton, 611 S.W.2d 581, 584 (Tenn. Ct. App.
1980) (holding that a resulting trust had not been created because plaintiff’s parents
bought the land on credit and “plaintiff did not, at the time of the purchase, obligate
himself in any way to pay for the land” even though plaintiff made every single mortgage
payment and paid the tax bills for forty-one years). One example where this Court has
concluded that the proponent of a resulting trust incurred an absolute legal obligation to
pay often involves the proponent’s execution of a promissory note allowing the purchase
of the property. See Keeton, 2006 WL 2818238, at *1 (finding a resulting trust where the
plaintiff co-signed the loan allowing the record owner to purchase the property).

       Accordingly, where the facts are disputed as to the purpose of the purchase of the
property, it seems clear that Tennessee law requires one of the following to be shown by
clear and convincing evidence in order to establish a resulting trust: (1) that the party
claiming the trust contribute to the initial payment of the purchase price; or (2) that the
party claiming the trust incurred an absolute legal obligation to pay at the time of the
purchase of the property, typically by signing a promissory note allowing the record
owner to purchase the property. Neither scenario has been shown by clear and convincing
evidence in this case. First, we note that it is undisputed that Stepson in no way
contributed to the purchase of the subject property at the time it was purchased.
Furthermore, nothing in the record shows that Stepson incurred an absolute obligation to
pay for the property at the time of its purchase; Stepson has not claimed nor shown that
he participated in the finance of the property, such as by co-signing the mortgage on the
property. Moreover, even if we were to conclude that Stepson’s payments of mortgage
and taxes in the years following the purchase of the property could be considered in
determining whether he incurred an obligation to pay at the time of the purchase of the
property, Stepson’s obligation to pay was in no way absolute. Indeed, as the trial court
found in its oral ruling, Homeowners would have had no legal recourse against Stepson if
Stepson had chosen not to provide any of the payments after the purchase of the property
pursuant to the purported nonbinding oral agreement. Indeed, Stepson did not dispute
that Homeowners were required to make some of the mortgage payments on the property
over the years. Based on the foregoing, we cannot conclude that the trial court erred in
finding that Stepson failed to establish the necessary elements of a resulting trust by clear
and convincing evidence.

                                  UNJUST ENRICHMENT

       We next address Stepmother’s contention that the proof at trial did not support
Stepson’s claim of unjust enrichment because Stepson did not expect to be compensated,
negating an essential element of the unjust enrichment claim. Stepson, on the other hand,
argues that an unjust enrichment claim does not require that Stepson expected to be

                                           - 12 -
compensated; rather, that element is part of a quantum meruit claim that is not at issue in
this case.

        The confusion between these two concepts began over fifty years ago, when the
Tennessee Supreme Court stated that “[a]ctions brought upon theories of unjust
enrichment, quasi contract, contracts implied in law, and quantum meruit are essentially
the same.” Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 154 (Tenn. 1966). While unjust
enrichment and quantum meruit may be synonymous in that they both involve the “class
of implied obligations where, on the basis of justice and equity, the law will impose a
contractual relationship between parties, regardless of their assent thereto,” id., the
elements of each claim, as defined by our supreme court, remain distinct. In 2001, the
Tennessee Supreme Court listed the following required elements for a quantum meruit
action:

       A quantum meruit action is an equitable substitute for a contract claim
       pursuant to which a party may recover the reasonable value of goods and
       services provided to another if the following circumstances are shown:

       (1) There is no existing, enforceable contract between the parties covering
       the same subject matter;
       (2) The party seeking recovery proves that it provided valuable goods or
       services;
       (3) The party to be charged received the goods or services;
       (4) The circumstances indicate that the parties to the transaction
       should have reasonably understood that the person providing the
       goods or services expected to be compensated; and
       (5) The circumstances demonstrate that it would be unjust for a party to
       retain the goods or services without payment.

Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 197–98 (Tenn. 2001) (quoting
Swafford v. Harris, 967 S.W.2d 319, 324 (Tenn. 1998)) (emphasis added). In contrast,
in 2005, the Tennessee Supreme Court outlined the following requirements that a
plaintiff must prove to prevail under a theory of unjust enrichment:

              The elements of an unjust enrichment claim are: 1) “[a] benefit
       conferred upon the defendant by the plaintiff”; 2) “appreciation by the
       defendant of such benefit”; and 3) “acceptance of such benefit under such
       circumstances that it would be inequitable for him to retain the benefit
       without payment of the value thereof.” Paschall’s, Inc., 407 S.W.2d at 155.
       The most significant requirement of an unjust enrichment claim is that the
       benefit to the defendant be unjust. Id.; Whitehaven Cmty. Baptist Church,
       973 S.W.2d at 596.

                                          - 13 -
Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005). As is
evident from the above, the Tennessee Supreme Court has simply not held that the
required elements of a quantum meruit claim must also be proven to show unjust
enrichment.9 Moreover, given the Tennessee Supreme Court’s clear holding in Freeman
Indus., LLC, we have no authority to append additional elements to claims for unjust
enrichment under Tennessee law. As such, we see no basis to reverse the trial court’s
application of the elements under Freeman Indus., LLC, and therefore, affirm the trial
court’s application of the three-part test.10

       Stepmother further takes issue with the trial court’s factual findings regarding
whether Stepson proved that he made any improvements to the property and whether the
circumstances rendered it unjust for Stepmother to retain the improvements. At the
outset, we note that Stepmother did not properly raise these issues in her statement of the
issues; rather, the issue that she raised in her appellate brief was which test the trial court

        9
            One distinction that we have unearthed between a claim for unjust enrichment and a claim for
quantum meruit may be whether the contract at issue is implied by law or implied in fact. For example, in
Ridgelake Apartments v. Harpeth Valley Utilities Dist. of Davidson & Williamson Cntys., No. M2003-
02485-COA-R3-CV, 2005 WL 831594 (Tenn. Ct. App. Apr. 8, 2005), this Court quoted favorably an
Opinion from the South Carolina Supreme Court in which a quantum meruit claim was defined as a
claim based upon a contract “implied in fact.” Id. at *9 (quoting Myrtle Beach Hosp., Inc. v. City of
Myrtle Beach, 532 S.E.2d 868, 872 (S.C. 2000)). “Contracts implied in fact arise under circumstances
which, according to the ordinary course of dealing and common understanding of men, show a mutual
intention to contract.” Paschall’s, 407 S.W.2d at 154 (quoting Weatherly v. Am. Agr. Chem. Co., 16
Tenn. App. 613, 65 S.W.2d 592, 598 (Tenn. 1933)). In contrast, our supreme court has indicated that a
claim for unjust enrichment rests on a contract implied by law. See Freeman Indus., LLC, 172 S.W.3d at
524–25 (citing Whitehaven, 973 S.W.2d at 596) (“Courts may impose a contract implied in law where no
contract exists under various quasi contractual theories, including unjust enrichment.”). Unlike contracts
implied by fact, “[c]ontracts implied in law or quasi contracts are created by law without the parties’
assent and are based upon reason and justice.” Freeman Indus., LLC, 172 S.W.3d at 524 (citing
Paschall’s, 407 S.W.2d at 154). Thus, it appears that there may be some distinction between the two
claims. This distinction, however, does not appear in all cases. Indeed, some cases have grouped both
unjust enrichment and quantum meruit claims as implied in law claims. See Paschall’s, Inc., 407 S.W.2d
at 154 (“Actions brought upon theories of unjust enrichment, quasi contract, contracts implied in law, and
quantum meruit are essentially the same.”); ICG Link, Inc. v. Steen, 363 S.W.3d 533, 543 (Tenn. Ct.
App. 2011) (citing Jones v. LeMoyne-Owen College, 308 S.W.3d 894, 906 (Tenn. Ct. App. 2009)) (“A
contract implied in law is also referred to as a ‘quasi-contract’ or an action for ‘quantum meruit.’”); W.
Exp., Inc. v. Dollar Gen. Corp., No. M2005-02580-COA-R3-CV, 2007 WL 1860751, at *7 (Tenn. Ct.
App. June 27, 2007) (quoting Paschall’s Inc., 407 S.W.2d at 154) (“Our cases often use the terms ‘unjust
enrichment,’ ‘quasi-contract,’ and ‘quantum meruit,’ interchangeably with contract implied in law. ‘Each
is based upon an implied obligation where, on the basis of justice and equity, we impose a contractual
relationship between parties, regardless of their assent.’”). In this case, we need not distinguish between
the two claims, however. Stepson brought this suit under an unjust enrichment claim, and Stepmother
does not argue that Stepson brought the wrong claim for the type of implied contract at issue in this case,
only that the quantum meruit elements should be applied to Stepson’s unjust enrichment claim. As such,
we will not consider whether the appropriate claim was brought in this case.
         10
             Indeed, during closing arguments, counsel for Stepmother cited only the three elements
outlined in Freeman Indus., LLC as necessary to prove Stepson’s unjust enrichment claim.
                                                  - 14 -
should have applied in connection with an unjust enrichment claim. “We may consider
an issue waived where it is argued in the brief but not designated as an issue.” Forbess v.
Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) (citing Childress v. Union Realty
Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002)); see also Tenn. R. App. P. 27(b)
(requiring that an appellant’s appellate brief must include “the contentions of the
appellant with respect to the issues presented”). As such, we conclude that Stepmother’s
arguments with regard to the trial court’s factual findings are waived.

       In any event, the resolution of this issue is not necessary to our determination in
this case, as we have determined that another deficiency is fatal to Stepson’s claim of
unjust enrichment related to the improvements to the property. Specifically, we agree
with Stepmother that the trial court utilized an incorrect measure of damages in its award
for unjust enrichment resulting from the improvements to the property. With respect to
the measure of damages for unjust enrichment based on improvements on property, this
Court has stated the following:

       [A] plaintiff’s recovery for unjust enrichment for improvements the
       Plaintiff made to another person’s land is the “amount by which the
       improvements enhance the value of the land.” Simpson v. Davis, No.
       W1999-00689-COA-R3-CV, 2000 WL 1346609, at * 4 (Tenn.Ct.App.
       Sept. 15, 2000); see also Simpson v. Bicentennial Volunteers, Inc., No.
       01A01-9809-CV-00493, 1999 WL 430497, at * 2 (Tenn. Ct. App. June 29,
       1999) (holding that “[t]he amount of recovery [in an unjust enrichment
       claim] is the value of the benefit conferred, not the cost to the furnisher”).

Kuderewski v. Estate of Hobbs, No. E2000-02515-COA-R3-CV, 2001 WL 862618, at *5
(Tenn. Ct. App. July 30, 2001). “The party seeking to recover using an unjust
enrichment theory has the burden of proving it is entitled to relief.” D.T. McCall & Sons
v. Seagraves, 796 S.W.2d 457, 464 (Tenn. Ct. App. 1990) (citing Bokor v. Holder, 722
S.W.2d 676, 680 (Tenn. Ct. App. 1986)).

       Here, the trial court found that “[t]here was no proof, evidence or testimony,
regarding the value of the [p]roperty other than the purchase price and the amount
financed and no testimony that the value of the [p]roperty was improved by the
improvements.” Nevertheless, the trial court awarded Stepson $37,000.00 based on
Stepson’s testimony of the costs he expended to make the improvements. Stepson does
not dispute that he erroneously introduced proof of his costs incurred at trial to establish
the value of the improvements nor does he dispute that the correct measure of damages is
the amount that the improvements enhanced the value of the property. Still, Stepson
argues in his appellate brief that the property tax statements “can show the change in the
appraised value of the [property] from 2003 to 2014, during which time Stepson made
improvements.” Although property tax receipts were filed as exhibits from 2006—not
2003—to 2013, with figures purporting to represent land values and improvement values,
                                            - 15 -
Stepson was forced to concede at oral argument that “there is no way to know” which
portion was due to the improvements made to the property versus market forces. Indeed,
at trial, the tax receipts were not introduced for the purpose of showing that Stepson’s
improvements increased the property value but rather were introduced solely to prove
that Stepson paid the property taxes. Accordingly, based on Stepson’s failure to meet his
burden of proving the correct measure of damages at trial and the trial court’s explicit
finding that “no testimony that the value of the [p]roperty was improved by the
improvements[,]” we must reverse the trial court’s award of $37,000.00 to Stepson.
Because of this reversal, we pretermit the following arguments: (1) Stepmother’s
alternative argument that the trial court miscalculated the figures provided at trial
producing the $37,000.00 amount in damages; and (2) Stepson’s argument that the trial
court erred in not awarding him additional damage awards for several other
improvements, including his costs incurred in placing the floors and building a pond,
based on the reasoning articulated above.

       We finally address Stepson’s argument that the trial court erred by not awarding
him a refund of his payments of the mortgage, property taxes, utilities, and insurance,
which he also couched under his claim of unjust enrichment. Whether these payments
constitute a benefit to Stepmother is a question of fact. See Simpson v. Bicentennial
Volunteers, Inc., No. 01A01-9809-CV-00493, 1999 WL 430497, at *2 (Tenn. Ct. App.
June 29, 1999) (“We think that whether [defendant] received a benefit from [plaintiff’s]
service is a question of fact.”). Here, as Stepson points out, the trial court did not make
any findings with respect to this argument. Bench trials in civil cases are subject to the
requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, which states the
following:

       In 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.

Tenn. R. Civ. Pro. 52.01. This Court has previously held that the General Assembly’s
decision to require findings of fact and conclusions of law is “not a mere technicality.” In
re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May
15, 2009). Instead, the requirement serves the important purpose of “facilitat[ing]
appellate review and promot[ing] the just and speedy resolution of appeals.” Id.; White v.
Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102,
104 (Tenn. Ct. App. 1990). “Without such findings and conclusions, this court is left to
wonder on what basis the court reached its ultimate decision.” In re K.H., 2009 WL
1362314, at *8 (quoting In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL
865840, at *19 (Tenn. Ct. App. Apr. 21, 2004)).

      Although the trial court explicitly found unjust enrichment based on the
improvements to the property, the trial court did not address whether unjust enrichment
                                          - 16 -
existed with respect to the monetary payments that Stepson made. Generally, the
appropriate remedy when a trial court fails to make appropriate findings of fact and
conclusions of law includes “remand[ing] the cause to the trial court for written findings
of fact and conclusions of law.” Lake v. Haynes, No. W2010-00294-COA-R3-CV, 2011
WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011). However, this Court has indicated that
we may “soldier on” with our review despite the trial court’s failure to make sufficient
findings of fact and conclusions of law, in certain limited circumstances:

      On occasion, when a trial judge fails to make findings of fact and
      conclusions of law, 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, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *5 (Tenn.
Ct. App. Feb. 22, 2013).

        This dispute concerns whether Stepson’s payment of the mortgage, property taxes,
utilities, and insurance constitutes unjust enrichment to Stepmother, and, if so, whether
her retention of these payments is unjust. The Tennessee Supreme Court has provided
the following guidance on this issue:

      The most significant requirement for a recovery on quasi contract is that the
      enrichment to the defendant be unjust. Consequently, if the landowner has
      given any consideration to any person for the improvements, it would not
      be unjust for him to retain the benefit without paying the furnisher.

Paschall’s, Inc., 407 S.W.2d at 155; see also Whitehaven Cmty. Baptist Church v.
Holloway, 973 S.W.2d 592, 597 (Tenn. 1998) (holding that the unjust enrichment claim
was properly dismissed because the defendants provided consideration for both the
improvements and the property, and, therefore, it was not unjust for the defendants to
retain this property with its improvements); Venture Const. Co. v. Apple Music City,
Inc., 847 S.W.2d 509, 511 (Tenn. Ct. App. 1992) (holding that lessor was not unjustly
enriched when lessor furnished money to the lessee for payment of construction costs
even though the lessee did not pay the construction company the amount it was due for
the work). “It is well-settled that consideration exists when the promisee does something
that it is under no legal obligation to do or refrains from doing something which it has a
legal right to do.” Brown Oil Co. v. Johnson, 689 S.W.2d 149, 151 (Tenn. 1985). Here,
without deciding whether Stepson conferred a benefit on Stepmother, it is undisputed that
Stepson agreed to pay the mortgage, property taxes, utilities, and insurance while he lived
on the property. Thus, by allowing Stepson to live on the property, which Stepmother, as
                                            - 17 -
co-owner of the property, was under no obligation to do, it appears that Stepmother
provided some consideration in exchange. As previously discussed, “any consideration”
would negate a finding of unjust enrichment. Under these circumstances, it was not
unjust for Stepmother to retain the benefit of Stepson’s payments of the mortgage,
property taxes, utilities, and insurance. As a result, the trial court did not err in failing to
award Stepson damages based on his payment of the mortgage, property taxes, utilities,
and insurance.

                                        CONCLUSION

        Based on the forgoing, we affirm the Cannon County Circuit Court’s ruling that no
resulting trust had been proven, affirm the trial court’s ruling of unjust enrichment with
respect to the improvements to the property, reverse the trial court’s award of $37,000.00
to Stepson based on the improvements, and remand for further proceedings as are
necessary and consistent with this Opinion. Costs of this appeal are taxed to the
Appellee, Shane Patterson, for which execution may issue if necessary.



                                                      _________________________________
                                                      J. STEVEN STAFFORD, JUDGE




                                             - 18 -
