                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                       January 30, 2012 Session

             U.S. WASTE ATLANTA, LLC and CLARENCE EMMER v.
                   MARK ENGLUND and WILLIAM ENGLUND

                     Appeal from the Chancery Court for Hamilton County
                      No. 07-0204     Donald Paul Harris, Senior Judge


                     No. E2010-01865-COA-R3-CV-FILED-APRIL 3, 2012


This appeal arises from an alleged agreement concerning a waste collection business. In
2007, U.S. Waste Atlanta, LLC (“U.S. Waste Atlanta”), filed suit against Mark Englund and
William Englund Sr. (“the Defendants”)1 in the Chancery Court for Hamilton County (“the
Trial Court”), alleging that the Defendants improperly took possession of certain trucks. U.S.
Waste Atlanta argued, among other things, that written documents demonstrated that William
Englund Sr. had an agreement with Clarence Emmer2 , owner of U.S. Waste, LLC (“U.S.
Waste”), to transfer trucks to U.S. Waste Atlanta in exchange for an interest in the company.
Clarence Emmer, on behalf of U.S. Waste Atlanta, made finance payments on the trucks but
the transfer never happened. The Plaintiffs filed a Motion for Summary Judgment. The Trial
Court partially granted the Plaintiffs’ Motion for Summary Judgment, awarding Clarence
Emmer a judgment against William Englund Sr. for $36,073.90. The Trial Court also made
this a final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.
William Englund Sr. appeals, arguing that a genuine issue of material fact regarding whether
an agreement existed bars summary judgment. We affirm the judgment of the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J., and C HARLES D . S USANO, J R., J., joined.



        1
            Mark Englund, a defendant below, is not a party on appeal.
       2
         Clarence Emmer was added as a plaintiff by the Trial Court’s order granting U.S. Waste Atlanta’s
Motion to Amend Complaint to Add Additional Party. U.S. Waste Atlanta and Clarence Emmer are
collectively “the Plaintiffs” herein.
Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, William Englund Sr.

C. Crews Townsend and Neil A. Brunetz, Chattanooga, Tennessee, for the appellees, U.S.
Waste Atlanta, LLC and Clarence Joseph Emmer.

                                       OPINION

                                      Background

             William Englund Sr. and his wife, Susan H. Englund, were the member-
managers of Star Waste Services, LLC. Established in 2000, Star Waste Services, LLC
operated a garbage collection service. Star Waste Services, LLC filed for bankruptcy in
2003.

              Star Waste Disposal, LLC was formed by the Englunds in 2005 to carry on the
garbage collection service in the Chattanooga area. Star Waste Services, LLC owned trucks
and equipment which it leased to Star Waste Disposal, LLC. William Englund Sr.’s son,
Mark Englund, except for a period in late 2006, was the 100% member-manager of Star
Waste Disposal, LLC.

               In early 2006, William Englund Sr. began discussions with Clarence Emmer,
the owner of U.S. Waste, about forming a new waste management business, U.S. Waste
Atlanta, which, as the name suggests, would operate in Atlanta, Georgia. The Plaintiffs
assert that in August 2006, William Englund Sr. agreed in writing to transfer to the new
company, U.S. Waste Atlanta, three trucks in exchange for an interest in the new company.

              Clarence Emmer opened an account with the City of Chattanooga in order to
dump garbage. Clarence Emmer used U.S. Waste’s employees and the trucks to collect
garbage for Star Waste Disposal, LLC. Clarence Emmer also unsuccessfully attempted to
collect money from Star Waste Disposal, LLC customers. Clarence Emmer made payments
on the trucks to Financial Federal Credit in the sum of around $36,073. The trucks were
owned by Star Waste Services, LLC and had been financed through Financial Federal Credit.
By late 2006, the business enterprise was deteriorating. U.S. Waste Atlanta, the parties’
proposed mutual endeavor, was registered with the state of Georgia in November 2006. The
trucks, however, never were transferred to U.S. Waste Atlanta. Emmer stopped making
payments on the trucks. In March 2007, U.S. Waste Atlanta sued William Englund Sr. and
Mark Englund, and Clarence Emmer was added later as a Plaintiff.

             In March 2007, the Trial Court conducted a hearing concerning the requested
injunction and writ of possession. At this hearing, three controversial documents were

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entered as exhibits. The first document, a single page dated August 23, 2006, was
handwritten but with computer generated signature lines. According to this document, the
Defendants were to transfer over 90 roll-off containers in exchange for a 20% interest in U.S.
Waste Atlanta. The second document, a typed single page dated August 25, 2006 and
purportedly signed by William Englund Sr., stated that U.S. Waste Atlanta would purchase
three trucks belonging to “Star Waste Services.” The third document, a typed single page
dated August 25, 2006, stated that Mark Englund would turn over all assets of Star Waste
Disposal, LLC and work for U.S. Waste Atlanta in exchange for a 10% share in U.S.Waste
Atlanta.

              William Englund Sr. first testified that he never signed the documents. William
Englund Sr. testified:

       Q:     Thank you. Now, sir, I’m going to hand you what’s been marked as
              Exhibit 1 and I’m going to ask you again, and I’m going to remind you
              that you’re under oath, and I want you to tell me whether that is your
              signature at the bottom of that page?

       A:     That is not my signature. I never signed that document.

       Q:     You’re saying somebody forged your signature right there?

       A:     Well, I just gave you an answer that is not my signature. I never signed
              that document.

       Q:     Now let me ask you about Exhibit 2 and remind you that you’re under
              oath, too, and ask you if that is your signature at the bottom of that
              document?

       A:     That is not my signature. I never signed that document.

                                            ***

       Q:     You’ve seen Exhibit 1 and Exhibit 2 where basically he would agree - -
              well, especially Exhibit 2 where he would agree to pay $65,000 for
              your trucks to be paid in the increments that - - not quite on those
              checks and everything. Was that the agreement that those were talking
              about?

       A:     No. I mean, there is no agreement at all. That was an insurance

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             document for insurance information with the VIN numbers and the
             value you had to have for collateral insurance. That didn’t represent
             anything. And the document you’re referring to where he claimed that
             he was making payments based on $7,200 for trucks is not consistent
             with the information that he has here as five loans. And that is
             conducive with our conversation that he had, well, this is a personal
             loan and we’ll do it this way. When the company is organized and we
             get our money, I was in total agreement that he would take it right off
             the top. Otherwise, he said, I’m holding you personally responsible.
             And he was very emphatic about that.

      Q:     So you did have an agreement to go in business with him?

      A.     We had an agreement verbally that we wanted to go in business
             together.

Regarding whether the fact that Clarence Emmer paid insurance on the trucks constituted
evidence of an agreement, William Englund Sr. testified:

      Q:     You’re exactly right. His paying the insurance is evidence of an
             agreement. His paying over $35,000, that’s evidence of an agreement.

      A:     Right.

             Clarence Emmer testified to the alleged agreement:

      Q:     But the thing is, you and the Englunds were planning on going into
             business together, correct?

      A:     We went in business together. Mr. Englund stated himself that if we
             didn’t do something that he was finished, that their trucks were all
             going to be repossessed and everything.

      Q:     And according to this, you were supposed to pay 65,000. You haven’t
             paid 65,000, have you? You haven’t even fulfilled this part of the
             contract?

      A:     I stopped paying when they grabbed the trucks.

      Q:     So you stopped paying. So you didn’t even fulfill your portion of the

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              contract, the 65,000, and so there’s not been any agreement because
              you never fulfilled your part of the contract?

       A:     I fulfilled all my parts. They haven’t fulfilled theirs.

              After the injunction hearing, William Englund Sr. filed a Motion for Summary
Judgment in which the Defendants’ account of the signatures on the three documents shifted.
The testimony at the injuction hearing was that the signatures were not theirs. As related to
his Motion for Summary Judgment, William Englund Sr. alleged that, while the signatures
were genuine, the documents were fraudulently produced. In February 2010, the Plaintiffs
filed their own Motion for Summary Judgment.

             In August 2010, the Trial Court entered an order granting partial summary
judgment awarding Clarence Emmer a judgment of $36,073.90 against William Englund Sr.
The Trial Court, in its July 2010 memorandum opinion incorporated into the final judgment,
stated:

               This case is before the court on a motion for summary judgment filed
       by plaintiffs, US Waste Atlanta, LLC, and Clarence Emmer. After due
       consideration the court is of the opinion that a partial summary judgment
       should be granted, there being no genuine dispute with regard to the following
       issues:

              1. In August 2006, an agreement was formed between William
       Englund Sr. and Clarence Joseph Emmer to form a business relationship
       related to operating a garbage service in the Atlanta, Georgia, area.

              2. As part of that agreement, William Englund Sr. agreed to cause the
       transfer of title to three garbage hauling trucks, a 2002 Freightliner VIN
       IFVABPAK32HK41664a 2000 Mack VIN IM2P67C5YM053238 and a 1999
       Mack VIN IM2P67C3XM0416673622363JDOC, to the business relationship.

              3. Based upon the agreement of William Englund Sr., Clarence Emmer
       paid $36,073.90 to Financial Federal Credit on the indebtedness owed on those
       vehicles.

               4. The defendant, William Englund Sr., failed to cause a transfer of
       title to the trucks to the business in breach of the agreement between the
       parties.



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             5. Plaintiff, Clarence Emmer, is entitled to a judgment against William
       Englund Sr. in the amount of $36,073.90.

              Summary judgment is denied with respect to all other issues. Counsel
       for plaintiffs will prepare an appropriate order.

The Trial Court also stated in its August 2010 order that this order constituted a final
judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, while
acknowledging that certain other matters, such as judicial dissolution of the plaintiff LLC,
remained outstanding. William Englund Sr. appeals.

                                          Discussion

              We restate the issues on appeal as one overarching issue: whether the Trial
Court erred in partially granting the Plaintiffs’ Motion for Summary Judgment.

              Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:

              The scope of review of a grant of summary judgment is well
       established. Because our inquiry involves a question of law, no presumption
       of correctness attaches to the judgment, and our task is to review the record to
       determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
       Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
       1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

               A summary judgment may be granted only when there is no genuine
       issue of material fact and the moving party is entitled to judgment as a matter
       of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
       1993). The party seeking the summary judgment has the ultimate burden of
       persuasion “that there are no disputed, material facts creating a genuine issue
       for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
       If that motion is properly supported, the burden to establish a genuine issue of
       material fact shifts to the non-moving party. In order to shift the burden, the
       movant must either affirmatively negate an essential element of the
       nonmovant’s claim or demonstrate that the nonmoving party cannot establish
       an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
       270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
       to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
       Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

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       apply the federal standard for summary judgment. The standard established
       in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
       sets out, in the words of one authority, “a reasonable, predictable summary
       judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
       v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
       175, 220 (2001).

               Courts must view the evidence and all reasonable inferences therefrom
       in the light most favorable to the non-moving party. Robinson v. Omer, 952
       S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
       only when the facts and the reasonable inferences from those facts would
       permit a reasonable person to reach only one conclusion. Staples v. CBL &
       Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
       Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
       Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

               Initially, we note that William Englund Sr. never filed a response to the
Plaintiffs’ Motion for Summary Judgment. Mark Englund filed a response pro se wherein
he, among other things, denied having entered into an agreement with the Plaintiffs and
asserted that the purported written contracts were fraudulent.

                The parties vigorously dispute the status of the three written documents which
purport to show an agreement. The Plaintiffs argue that because William Englund Sr.
testified at the injunction hearing that his signatures were not on the documents but later
changed his testimony by saying they were his signatures but the rest of the three documents
were fraudulently produced, the Cancellation Rule should apply to cancel these apparently
contrasting assertions.

              Absent an explanation or corroboration, contradictory statements by a witness
concerning the same fact cancel each other. Taylor v. Nashville Banner Pub. Co., 573
S.W.2d 476, 482-83 (Tenn. Ct. App. 1978). In the instant case, reviewing all the evidence
and inferences in the light most favorable to William Englund Sr., as we must at this
summary judgment stage of the proceedings, we find that William Englund Sr.’s later
account regarding the signatures is not directly contradictory to his first as he gives an
explanation for the changed testimony. Basically, it was William Englund Sr.’s position at
the time the summary judgment was granted that he had signed blank sheets of paper upon
which someone else later must have added the supposed contractual terms and agreement.
We cannot say at this summary judgment stage that this explanation for the change in his

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testimony is not credible as such a credibility determination is not appropriate at the summary
judgment stage. The Cancellation Rule, therefore, does not apply to this issue at this stage
of the proceedings.

              The Trial Court did not specify exactly what basis it relied upon to find the
existence of an agreement. Due to the dispute over whether William Englund Sr. signed
these purported written agreements or signed only blank sheets of paper, the Trial Court
could not properly have granted partial summary judgment based on the purported written
agreements. For this same reason, we cannot affirm the Trial Court’s granting of partial
summary judgment on the basis of the purported written agreements.

              Nevertheless, there is another basis under which the Trial Court could and may
have properly granted partial summary judgment by having found an oral agreement between
Clarence Emmer and William Englund Sr. We have previously addressed the concept of
contracts implied in fact:

              Tennessee has long recognized that a contract can be express, implied,
       written or oral. Klosterman Dev. Corp. v. Outlaw Aircraft Sales, Inc., 102
       S.W.3d 621, 635 (Tenn. Ct. App. 2002). A contract “implied in fact” is one
       that “arises under circumstances which show mutual intent or assent to
       contract.” Angus v. City of Jackson, 968 S.W.2d 804, 808 (Tenn. Ct. App.
       1997); see also Givens v. Mullikin, 75 S.W.3d 383, 407 (Tenn. 2002). A
       contract may be implied from the conduct of the parties and the surrounding
       circumstances show mutual assent to the terms of the contract. Thompson v.
       Hensley, 136 S.W.3d 925, 930 (Tenn. Ct. App. 2003).

Metro. Gov’t of Nashville & Davidson Cnty. v. Cigna Healthcare of Tenn., Inc., 195 S.W.3d
28, 34 (Tenn. Ct. App. 2005).

              The record contains a number of salient undisputed facts regarding the parties’
conduct with respect to one another. William Englund Sr. and Clarence Emmer began
discussions about a business relationship in early 2006. Clarence Emmer used his company’s
employees to collect garbage from Star Waste Disposal, LLC’s customers. Significantly, it
is undisputed that Clarence Emmer made payments to Financial Federal Credit on the trucks
owned by Star Waste Services, LLC.

              On appeal, William Englund Sr. argues that, apart from an agreement with
Clarence Emmer to continue discussions toward reaching an agreement, he never had an
agreement with Clarence Emmer. William Englund Sr. states in his brief that: “[William
Englund Sr.] also testified that he did not agree to transfer the Trucks, and certainly not free

                                              -8-
of the liens as alleged.” However, for the purposes of a contract implied in fact, we are
fundamentally concerned with the conduct of the parties. As the Plaintiffs put it, “Emmer
did not pay $36,073.90 to Financial Federal Credit as an idle gesture.” William Englund Sr.
himself testified, as discussed earlier in this Opinion, that Clarence Emmer’s paying the
insurance on the trucks and then paying over an additional $35,000 to Financial Federal
Credit was evidence of their agreement.

              Finally, for purposes of summary judgment, we do not regard the dispute
concerning whether an agreement existed to be a dispute over a genuine issue of material
fact. Given the undisputed material facts, whether an agreement existed is a question of law.
Based on the record before us, including the undisputed material facts concerning the parties’
conduct, we conclude that the parties on appeal had a contract implied in fact. We affirm the
judgment of the Trial Court.

                                        Conclusion

              The judgment of the Trial Court is affirmed and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, William Englund Sr., and his surety, if any.


                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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