               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                January 27, 2015 Session

 WILLIAM C. KERST, ET AL. V. UPPER CUMBERLAND RENTAL AND
                         SALES, LLC

                Appeal from the Chancery Court for Putnam County
                   No. 200749    Ronald Thurman, Chancellor




                No. M2014-00894-COA-R3-CV – Filed March 25, 2015




This is a contract case arising from the sale of a business. Appellant orally agreed to sell
his fastener business to the Appellee. After Appellant allegedly violated the terms of the
sale agreement, Appellee stopped making payments. Appellant filed suit to recover the
balance of the purchase price. The parties later agreed to rescission of the sale and to
allow the trial court to decide the issue of rescissory damages. The trial court heard
evidence regarding such damages and entered an order awarding Appellant $8,601.73 in
damages, plus the remaining inventory of unused old fasteners. Appellant appeals. We
affirm and remand.

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

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J. and BRANDON O. GIBSON, J., joined.

C. Douglas Fields, Crossville, Tennessee, for the appellants, William Kerst and
Advanced Fasteners.

Henry D. Fincher, Cookeville, Tennessee, for the appellee, Upper Cumberland Rental
and Sales, LLC.




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                                        OPINION

                                      I. Background

       This case began nearly a decade ago when William Kerst (“Appellant”) orally
agreed to sell his business, Advanced Fasteners, to Upper Cumberland Rental and Sales,
LLC (“Upper Cumberland” or “Appellee”). Mr. Kerst began operating Advanced
Fasteners in 2003; however, in 2004, he underwent open-heart surgery, which rendered
him unable to work. In early May of 2005, Mr. Kerst orally agreed to sell his “business
and inventory” to Upper Cumberland for $70,000. Upper Cumberland paid $20,000
down and agreed to pay the $50,000 balance in monthly installments over five years, at
five percent interest. The agreement provided that Mr. Kerst would work as a salesman
and that he would not compete with Upper Cumberland. Upper Cumberland made
thirteen payments to Mr. Kerst and then stopped. Upper Cumberland asserted that it
ceased making payments because of Mr. Kerst‟s alleged violation of the non-compete
agreement.

       On February 16, 2007, in response to Upper Cumberland‟s refusal to make
payments, Mr. Kerst filed suit in the Putnam County Chancery Court (“trial court”) for
payment of the balance owed under the sale agreement. On April 2, 2007, Upper
Cumberland filed its answer and counterclaims, including breach of contract, unfair
competition, and tortious interference with contract.     Mr. Kerst answered the
counterclaims on May 21, 2007. The case was continued numerous times for reasons that
do not bear on this appeal.

        Upon the parties‟ agreement and at their request, the trial court entered an order
dated February 22, 2012, rescinding the agreement between the parties. On December
18, 2013, the trial court heard evidence on the issue of damages. In an order dated
January 9, 2014, the trial court ordered Upper Cumberland to return any unsold inventory
it obtained from Mr. Kerst, and also awarded him $8,601.73. The trial court calculated
the $8,601.73 by subtracting, from the $70,000 sale price, $15,558.81 for the value of the
returned inventory and $45,839.46 for amounts already paid to Mr. Kerst. On January
13, 2014, Mr. Kerst moved the trial court to amend its judgment, or, in the alternative, for
a new trial. The trial court denied the motion on April 16, 2014, and Mr. Kerst timely
filed this appeal.

                                         II. Issues

Appellant raises multiple issues for our review. However, we perceive that there are five
dispositive issues, which we state as follows:

   1. Whether the trial court erred when it did not award lost profits to the Appellant.
   2. Whether the trial court erred when it did not make an award to Appellant for the

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      business‟ goodwill.
   3. Whether the trial court erred when it did not return the profits made by the
      Appellee to the Appellant on inventory it received in the sale.
   4. Whether the trial court improperly assigned fault.
   5. Whether the trial court‟s remedy constituted a reformation of the contract instead
      of a rescission.

                                 III. Standard of Review

       The trial court heard this case without a jury. Accordingly, our review is de novo
on the record, with a presumption of correctness afforded to the trial court‟s findings of
fact. Tenn. R. App. P. 13(d). The trial court‟s conclusions of law, however, are reviewed
de novo and “are accorded no presumption of correctness.” Brunswick Acceptance Co.,
LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008). This standard applies to our
review of a trial court‟s rescission of a contract. See Klosterman Development Corp. v.
Outlaw Aircraft Sales, Inc., 102 S.W.3d 621, 632 (Tenn. Ct. App. 2002); Morris v.
Norwood, No. E1999-01328-COA-R3-CV, 2000 WL 472871, at *4 (Tenn. Ct. App.
April 24, 2000). “The equitable remedy of rescission is…a matter resting in the sound
discretion of the trial court and the court should exercise the discretion sparingly.”
Klosterman, 102 S.W.3d at 632 (citing Vakil v. Idnani, 748 S.W.2d 196, 199 (Tenn. Ct.
App. 1987)). Although the remedy of rescission is available, it “is not favored in
Tennessee.” Id. at 631. Typically, rescission is granted in cases of mutual mistake, see,
e.g., Robinson v. Brooks, 577 S.W.2d 207 (Tenn. Ct. App. 1978); or fraud, see, e.g.,
Richards v. Taylor, 926 S.W.2d 569, 572 (Tenn. Ct. App. 1996) (citing Birdsong v.
Birdsong, 39 Tenn. 289 (Tenn. 1859)). In this case, however, the parties mutually agreed
to rescind their agreement. Parties may agree that rescission is the proper remedy when
the terms of an oral agreement to sell a business are disputed. See Morris, 2000 WL
472871.

        Because the parties agreed to rescind their agreement, the trial court‟s only task
was to fashion the remedy. “Rescission is an equitable remedy involving the avoidance
or setting aside of a transaction.” Id. (citing Lamons, 909 S.W.2d at 800). “[R]escission
is designed to place both parties in the same position as they were in when the contract
was contemplated.” Lamons, 909 S.W.2d at 800 (quoting Williamson v. Upchurch, 768
S.W.2d 265, 271 (Tenn. Ct. App. 1988)). In order to achieve this goal, “a party seeking
rescission of a contract must return, or offer to return, what he has received under it, and
thus put the other party as nearly as is possible in his situation before the contract.”
Moore v. Howard Pontiac-American, Inc., 492 S.W.2d 227, 230 (Tenn. Ct. App. 1972)
(emphasis added). Taking into account that we review a trial court‟s decision to grant a
rescission under the abuse of discretion standard, we also review the trial court‟s remedy
in rescission cases under the abuse of discretion standard. A trial court abuses its
discretion when it “applies an incorrect legal standard, or reaches a decision which is
against logic or reasoning that causes an injustice to the party complaining.” Eldridge v.

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Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). When reviewing for an abuse of discretion,
“an appellate court cannot substitute its judgment for that of the trial court.” Pratcher v.
Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727, 741 (Tenn. 2013).
Applying the abuse of discretion standard in light of the law on rescission of contracts
here, we specifically review whether the trial court placed the parties in a position as near
as possible to their positions before the agreement was negotiated.

                                       IV. Analysis

                                 A. Appellant’s Lost Profits

       Appellant asserts that the trial court incorrectly applied Tennessee law when it
awarded only the sale price of the business, as opposed to the sale price plus lost profits.
Appellant cites Lamons v. Chamberlain, supra, for the proposition that profits must be
returned if a contract for the sale of a business is rescinded. Appellant‟s reliance on
Lamons, however, is misplaced. In Lamons, this Court reversed a trial court‟s rescission
of a contract for the sale of a business and instead awarded damages for breach of
contract, which included lost profits. 909 S.W.2d at 801. Because the remedy mandated
by this Court in Lamons was breach of contract, not rescission of a sale, Lamons has no
precedential value in this case.

        Appellee argues that the trial court was correct in not awarding the Appellant lost
profits because there is no evidence that Advanced Fasteners was profitable at the time of
this transaction. As discussed earlier, the remedy of rescission is designed to return the
parties as nearly as possible to their status when the agreement was contemplated. See
Lamons, 909 S.W.2d at 800. Accordingly, it would only be proper to award Appellant
lost profits if his business was profitable at the time of the transaction. During his
testimony, Mr. Kerst was asked: “you don‟t know if you could have made a profit in
2005 had you kept Advanced Fasteners…?” Mr. Kerst responded: “At that point in time,
no.” We also note that Mr. Kerst‟s personal income tax returns show net losses for 2003
and 2004. Appellant argues that his tax returns do not provide an accurate picture of
Advanced Fasteners‟s profitability because the returns take into account losses from other
endeavors. Accordingly, Appellant contends, the tax returns cannot be used to determine
whether Advanced Fasteners was profitable. Upon review of the record, however, we
glean no evidence, apart from Mr. Kerst‟s testimony, that Advanced Fasteners was
profitable at the time of this transaction. In not awarding lost profits, or making a finding
that Advanced Fasteners was profitable, the trial court implicitly found Mr. Kerst‟s
testimony regarding profitability to not be credible. “[A] trial court‟s determination of
credibility will not be overturned on appeal unless there is clear and convincing evidence
to the contrary.” Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 515 (Tenn. 2012). In
light of the implicit credibility findings and the lack of evidence supporting a finding that
Advanced Fasteners was profitable at the time of the transaction, we conclude that the
trial court did not err in denying an award for lost profits.

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                             B. Compensation for Good Will

        Appellant also argues that the trial court failed to properly return the value of the
business goodwill that Upper Cumberland acquired through its purchase of Advanced
Fasteners. Specifically, Appellant argues that he will not be able to regain his retail
customer-based business, and, consequently, he contends that he should be compensated
for this loss. Appellee, of course, contends that Advanced Fasteners was not a profitable
business at the time of the sale and had no goodwill at the time of the transaction.
Appellee also argues that, under the terms of the sale, it acquired more than just a
customer list and good will: it also acquired Kerst as a salesman and as a tool repairman,
and it acquired his promise not to compete. Appellee argues that these promises had their
own value, thereby reducing the amount of any goodwill the trial court could award. In
its ruling, the trial court found that Upper Cumberland purchased the “inventory and
customer list” and that the customer list was “basically the good will.”

       Because goodwill was implicitly contained in the purchase price, there is
insufficient evidence to show that the existence of goodwill would raise the value of
Advanced Fasteners beyond the $70,000 purchase price. The inventory received by
Upper Cumberland at the time of sale was valued at $45,369.18. Appellant‟s brief asserts
that the remaining $24,630.82 was for goodwill at the time of purchase. Appellant
further argues that he is owed more for goodwill because of his inability to recover his
customer base. It is undisputed that, at the time of the sale, Appellant was physically
unable to operate his business. Furthermore, Appellant presented no evidence as to what
monetary value the goodwill would have. As such, the trial court was constrained to
make a decision regarding the value of the goodwill. Furthermore, there is insufficient
evidence on which the trial court could assign a value to Mr. Kerst‟s lost retail customer
base. Accordingly, we conclude that the trial court properly denied the Appellant an
additional award for goodwill and lost retail customer base. Based on the parties‟
agreement to rescind the sale, the trial court‟s obligation was to fashion a rescission
remedy returning the parties “as nearly as is possible” to their prior positions. In this
case, due to lack of evidence and the passage of time, we conclude that the trial court
restored the parties to their pre-agreement positions as nearly as possible.

                            C. Profits from Sale of Inventory

       Appellant also argues that the trial court erred when it did not award him profits
from the sale of inventory Appellee acquired through its purchase of Advanced Fasteners.
Again, as was the case with goodwill, the lack of evidence negates our ability to conduct
any meaningful review of this issue. Although the record contains a spreadsheet of
Upper Cumberland‟s profits from fastener sales, it does not specifically illustrate whether
those profits are from the sale of inventory acquired from Advanced Fasteners or new
inventory purchased later by Upper Cumberland. We also note these spreadsheets only
cover the years 2005 through 2008, and Upper Cumberland did not post a profit each year

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from the sale of fasteners. From the evidence, it does not appear that the trial court could
have determined the profits or monies received by Appellee from the sale of inventory it
acquired from the Appellant. As a reviewing court, given the state of the record, we
cannot conclude that the trial court abused its discretion in not awarding profits from the
sale of old fastener inventory acquired by Upper Cumberland.

                              D. Improper Assignment of Fault

        Appellant also argues that the trial court improperly allowed notions of fault to
influence its ruling. Appellant asserts that because the trial court did not award lost
profits, the trial court found fault with the Appellant‟s actions and fashioned the
rescission remedy to reflect Appellant‟s fault. While the trial court did note, in its
findings, that the Appellant may have acted in such a manner as to breach the agreement,
the trial court also explicitly stated that its purpose was not “to decide … who is at fault
here.” Instead, the trial court stated that it only needed to determine “what the appropriate
remedy would be to rescind what the parties perceived as the agreement and put the
parties back in the position they were in…” A trial court speaks through its orders. See
Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). From the statements in
the trial court‟s order, we conclude that there is no indication that the trial court‟s
findings or the award in this case were influenced by notions of fault.

                            E. Reformation Instead of Rescission

        Appellant argues that the award he received is improper because it neither takes
into account the depreciation of the Advanced Fasteners inventory, nor awards interest
for the time period that Upper Cumberland has owned the business. Appellant contends
that these omissions constitute an improper reformation of the parties‟ sale agreement
that allows Upper Cumberland to purchase Advanced Fasteners at a much lower price
than originally bargained.

       Reformation of a contract is an equitable remedy involving the “judicial alteration
of the provisions of a written agreement.” Sikora v. Vanderploeg, 212 S.W.3d 277, 287
(Tenn. Ct. App. 2006). “The basic purpose of reformation is to make the contract
„conform to the real intention of the parties.‟” Id. (citing Lebo v. Green, 426 S.W.2d
489, 494 (Tenn. 1968)).1 The award in this case in no way constitutes a reformation of
the parties‟ agreement. A reformation of the parties‟ agreement would have left the sale
of Advanced Fasteners intact, resulting in Upper Cumberland continuing to own the
business and the remaining unused fastener inventory. Instead, the trial court ordered
1
  Courts may reform a contract when, “at the time of the contract, both parties were operating under a
mutual mistake of fact or law regarding a basic assumption underlying the bargain.” Sikora, 212 S.W.3d
at 286 (citing Alexander v. Shepard, 240 S.W. 287, 291-94 (Tenn. 1922)). Courts may also reform a
contract when “only one of the parties was operating under a mistake of fact or law if the mistake was
influenced by the other party‟s fraud.” Id.
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that the remaining inventory be returned to Mr. Kerst in order to place Mr. Kerst, as
nearly as possible, in the position he was in prior to the sale.

       Moreover, both parties agreed that rescission was the proper remedy to resolve
their dispute. To award the Appellant interest and depreciation from the time of
Appellee‟s purchase of Advanced Fasteners, as suggested, would place the Appellant in a
far better position than he was in at the time of the sale, and, therefore, would not
constitute a rescission. Additionally, Appellant‟s argument regarding the award fails to
consider that the trial court did not offset the award for the commissions paid to
Appellant by Upper Cumberland. Nor did the trial court offset Appellant‟s award by
outside sales he made in alleged violation of the parties‟ non-compete agreement.
Although the passage of time may have diminished the value of Advanced Fastener‟s
original inventory, the trial court need only return the parties as near as possible to their
positions prior to the sale agreement. Considering the passage of time and the other
circumstances here, we conclude that the trial court affected a rescission and did not
undertake to reform the parties‟ oral agreement as argued by the Appellant.

                                      V. Conclusion

      For the foregoing reasons, we affirm the judgment of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellants, William Kerst and
Advanced Fasteners Inc., and their surety, for all of which execution may issue if
necessary.


                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




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