                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  May 21, 2014 Session

        JANE FIELD v. THE LADIES’ HERMITAGE ASSOCIATION

            Direct Appeal from the Chancery Court for Davidson County
                     No. 07-783-II   Carol McCoy, Chancellor


                  No. M2013-02635-COA-R3-CV - Filed July 24, 2014


This is the third round in a battle between these parties over the terms of a deed requiring
certain payments to the heirs of the grantor. The property at issue is the historic Tulip Grove
Mansion near The Hermitage, in Nashville, Tennessee. The deed conveying Tulip Grove to
the Ladies’ Hermitage Association required payments to the heirs of the grantor of one-third
“of all gate receipts received by [the LHA] from visitors to Tulip Grove House[.]” In a prior
appeal, we held that “the term ‘gate receipts’ in the deed includes the rent paid to LHA for
use of the property for special events.” The parties now dispute whether the LHA can deduct
expenses from the special event rental fees prior to calculating the heirs’ one-third share.
The chancellor held that such a deduction is permissible. We hold that it is not. We
therefore reverse and remand for further proceedings.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

W. Gary Blackburn, C. Dewees Berry IV, Nashville, Tennessee, for the appellant, Jane Field

Robb S. Harvey, Mark M. Bell, Nashville, Tennessee, for the appellee, The Ladies’
Hermitage Association
                                         OPINION

                          I.   F ACTS & P ROCEDURAL H ISTORY

       The Ladies’ Hermitage Association (“LHA”) is a non-profit organization that has
been responsible for overseeing President Andrew Jackson’s home, The Hermitage, and the
surrounding property since 1889. The historic home known as Tulip Grove Mansion,
constructed in 1836, is nearby the Hermitage. Tulip Grove was built by Andrew Jackson
Donelson and his wife, Emily. Andrew Jackson Donelson was the nephew of Rachel
Jackson (President Andrew Jackson’s wife), and he served with President Jackson in
different capacities.

       Jane Berry Buntin and her husband bought the Tulip Grove property in 1914. In
March of 1964, Ms. Buntin, who had been active in the LHA, conveyed the Tulip Grove
house and surrounding property of 26.33 acres to the LHA in exchange for promises by the
LHA to pay Ms. Buntin and her heirs certain monies. The warranty deed, dated March 11,
1964, contained the following provision:

      FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) cash in
      hand paid and other good and valuable considerations, hereinafter described,
      paid and to be paid by The Ladies' Hermitage Association, hereinafter called
      "GRANTEE" to Jane B. Buntin, hereinafter called "GRANTOR", receipt of
      all of which is hereby acknowledged and in addition, the said Grantee, by the
      acceptance of this Deed, agrees to pay to Grantor, her heirs and assigns, for a
      period of ninety-nine (99) years from and after March 1, 1964 one-third (1/3)
      of all gate receipts received by Grantee from visitors to Tulip Grove House
      located on said land, which payments are to be made on a monthly basis. If for
      any period of six (6) calendar months hereafter . . . Grantee should fail to pay
      to Grantor, her heirs and assigns, from such gate receipts or from other funds
      of Grantee at least $600.00 (except during such time as Tulip Grove House is
      being restored or rebuilt after fire or other casualty), then and in that event the
      title to the property herein conveyed shall revert to Grantor, her heirs and
      assigns, and this deed shall become null and void.

In subsequent years, Tulip Grove was restored by the LHA, and the LHA enjoyed success
in charging visitors to view the house and grounds. From 1965 to 2001, the LHA paid to Ms.
Buntin and her heirs over $300,000.00 out of the proceeds from the fees charged to admit
people to the house. In 2001, however, the LHA determined that keeping the Tulip Grove
house open for tours had become unprofitable, and it was closed to the general public. The
LHA continued to pay the heirs at least $600.00 every six months.

                                              -2-
       After 2001, the LHA began using the Tulip Grove property in a technically different
fashion by renting it to individuals or groups for use during “special events” such as wedding
receptions or corporate dinners. The LHA did not pay to the heirs any portion of the receipts
from these special events. The LHA began selling tickets specifically for the house again in
2008, and in 2010 there were enough profits from these tickets to pay Ms. Buntin’s heirs an
amount over $600.00 for each six months.

        The plaintiff/appellant Jane Berry Field (“Plaintiff”) is the granddaughter and heir of
Jane Berry Buntin. In April of 2007, Plaintiff filed suit alleging the LHA had failed to
comply with its obligations under the deed, and therefore, the property should revert to the
heirs.1 She also asked for a judgment against the LHA for the money that, she claimed, she
should have been paid since 2001.

        On November 12, 2008, the trial court entered an order on the LHA’s motion for
partial summary judgment and found that reversion was not warranted. This order was
appealed by Plaintiff, and the sole issue on that appeal was whether the property had reverted
to the heirs. This Court held that it had not because it was undisputed that the LHA had paid
Ms. Buntin and her heirs at least $600.00 every six months. Therefore, we affirmed the
November 12 order on the issue of reversion.2 See Field v. Ladies’ Hermitage Ass’n, No.
M2008-02663-COA-R3-CV, 2010 WL 744527 (Tenn. Ct. App. Mar. 3, 2010) perm. app.
denied (Tenn. Aug. 25, 2010) (“Field I”).

       On remand, the chancellor considered Plaintiff’s claim for damages and held that the
LHA did not have an implied obligation to keep the property open for paid tours and that the
LHA did not have to share with the heirs the income derived from renting the property for
special events. Specifically, the court concluded that “gate receipts” did not include rental
of the house for special events. Plaintiff appealed again. On appeal, this Court found that
the chancellor properly rejected the argument that the deed to the LHA contained an implied
obligation to continue to generate gate receipts in order to pay a percentage to the grantor’s
heirs. However, to the extent that the LHA was admitting visitors to the property, albeit for
“special events,” we held that the heirs were entitled to a share of the rent paid to LHA for
use of the property for these events. We explained:


        1
           Although other heirs were also named as plaintiffs at various times during these proceedings by
way of amended complaints, the claims of the other heirs were voluntarily dismissed, and Jane Berry Field
is the sole remaining plaintiff.
        2
           The trial court made findings pursuant to Rule 54.02 making the order on reversion immediately
appealable. The other issues remained pending before the trial court, including whether the heirs were
entitled to a monetary recovery from the LHA based upon its closure of the property in 2001 and its resulting
failure to pay them one-third of gate receipts.

                                                    -3-
               The Affidavit and deposition testimony of the current President and
       Chief Executive Officer of LHA showed that LHA had admitted visitors to the
       property for special events and that LHA had not shared any of the revenue
       with the Plaintiff. He said the special events included weddings, receptions,
       corporate dinners and other events. The typical charge for such use of the
       property was $1,100 for each event. By his interpretation of the deed, the
       obligation to share revenue with the grantor's heirs only extended to the sale
       of individual tickets to persons who toured the property because of their
       interest in its history and its contents. This interpretation mutually excludes
       rentals derived from special events where people attend because of the event
       and are otherwise uninterested in the property's history.
               ....
               Both parties agree that the language in the deed is plain and
       unambiguous. . . .
               We are persuaded that the interpretation of the term “gate receipts” to
       mean only the sale of individual tickets is too narrow. The deed says “[a]ll
       gate receipts received by Grantee from visitors to Tulip Grove House on said
       land[.]” We see nothing in that language or the surrounding circumstances that
       indicate the parties intended to restrict the scope of LHA’s obligation to money
       received from visitors who hold an individual ticket, or to money received
       from visitors who have an interest in history. We, therefore, hold that the term
       “gate receipts” in the deed includes the rent paid to LHA for use of the
       property for special events.

Field v. Ladies’ Hermitage Ass’n, No. M2011-01736-COA-R3-CV, 2012 WL 5193368, at
*5-6 (Tenn. Ct. App. Oct. 19, 2012) (“Field II”). Having reversed the trial court’s holding
that the heirs were not entitled to a share of the special event income, we remanded for
further proceedings on that issue.

        After remand, Plaintiff filed a “Motion Concerning Special Event Revenues and
Accounting,” asking the trial court to order the LHA to pay the heirs of Jane Buntin their full
share of revenues from wedding receptions, civic gatherings, and other so-called special
events. In response, the LHA filed a “Motion for Approval of Certain Payments to Plaintiff,
for Entry of Final Order, and for Satisfaction,” claiming that it had attempted to pay Plaintiff
$15,907.37 as the amount it believed was necessary to satisfy its obligations under the deed,
yet Plaintiff had refused to cash the checks. The LHA conceded that, pursuant to this Court’s
opinion in Field II, Plaintiff was “entitled to some portion of the special event rentals.”
However, Plaintiff and the LHA disagreed as to how the heirs’ one-third share of the event
rentals should be calculated. The LHA calculated Plaintiff’s one-third share based on what
it called a “net calculation” of the amount of the event rental, which, it claimed, would

                                              -4-
provide the heirs with one-third of the amount that the LHA “actually receives” from the
rentals. The LHA explained that it “incurs additional expenses in order to make Tulip Grove
House available for special event rentals,” such as “state-imposed sales taxes on rental
facilities and [] additional expenses for the cost to prepare, staff, and clean-up the special
event.” The LHA contended that Plaintiff should only receive one-third of “what is actually
available” from the rental fee after the payment of these expenses. The LHA claimed that
any other interpretation would lead to an “absurd” result, conceivably requiring it to pay
Plaintiff a one-third share of refundable security deposits that the LHA temporarily held on
behalf of renters.

       In response, Plaintiff claimed that the heirs’ one-third share should be based on the
“gross” rental fees received by the LHA, without deducting expenses first. Plaintiff insisted
that she was not attempting to collect any share of security deposits or sales taxes because
she did not consider such sums to be a form of rent paid to the LHA.

        Following a hearing, the trial court entered an order on November 8, 2013, adopting
the interpretation espoused by the LHA. The trial court noted in the order that the LHA had
attempted to pay Plaintiff a share of the “income derived from special events net of
expenses.” Without explanation, the trial court held, “Consistent with the terms of the
Warranty Deed and the intent of the parties, the Court holds that the heirs (collectively)
should receive 1/3 of (a) the gate receipts from ticketed visitors at Tulip Grove House, plus
(b) the actual payments for special events held in Tulip Grove House after deducting
event-related expenses.”3 Plaintiff timely filed a notice of appeal.




        3
           Tennessee Rule of Civil Procedure 52.01 requires trial courts to make specific findings of fact and
conclusions of law in all bench trials. “[F]indings and conclusions facilitate appellate review by affording
a reviewing court a clear understanding of the basis of a trial court's decision.” Lovlace v. Copley, 418
S.W.3d 1, 34 (Tenn. 2013); see also In re K.H., No. W2008–01144–COA–R3–PT, 2009 WL 1362314, at
*8 (Tenn. Ct. App. May 15, 2009) (recognizing that without findings and conclusions appellate courts are
left to wonder about the basis of a trial court's decision). In the case before us, the chancellor’s order recites
some undisputed facts, regarding the LHA’s attempts to pay Plaintiff, and Plaintiff’s refusal to cash the
checks. However, there are no findings or conclusions to explain why she interpreted the deed as allowing
the LHA to deduct expenses prior to paying Plaintiff. She simply stated that the LHA was allowed to deduct
event-related expenses, “[c]onsistent with the terms of the Warranty Deed and the intent of the parties.”
Although we would have preferred some explanation that would have allowed us to understand the reason
for the trial court’s decision, the interpretation of the deed is an issue of law, which we review de novo, and
the facts are largely undisputed. Therefore, we will proceed to consider the issues on appeal regardless of
the lack of detailed written conclusions by the chancellor.

                                                       -5-
                                   II.     I SSUE P RESENTED

        Plaintiff presents the following issue for review on appeal: Whether the LHA is
entitled to deduct expenses before calculating the heirs’ share of revenues from so-called
special events. For the following reasons, we reverse the decision of the chancery court and
remand for further proceedings.

                                III.     S TANDARD OF R EVIEW

        As we explained in Field I, construction of a deed is a question of law. 2010 WL
744527, at *3 (citing Griffis v. Davidson County Metro. Gov’t, 164 S.W.3d 267, 274 (Tenn.
2005)). Conclusions of law are reviewed de novo with no presumption of correctness. Id.
(citing Griffis, 164 S.W.3d at 274). “In construing a deed, our primary task is to ascertain
the grantor's intent from the words of the deed as a whole and from the surrounding
circumstances.” Griffis, 164 S.W.3d at 274 (citing Collins v. Smithson, 585 S.W.2d 598, 603
(Tenn. 1979); Bennett v. Langham, 214 Tenn. 674, 383 S.W.2d 16, 18 (1964)).

                                         IV.   D ISCUSSION

        We begin our analysis with the words of the deed itself. It required the LHA to pay
to Ms. Buntin and her heirs “one-third (1/3) of all gate receipts received by Grantee from
visitors to Tulip Grove House located on said land[.]” Next, we must examine our prior
holdings regarding the language at issue. In Field II, we rejected the narrow interpretation
of “gate receipts” urged by the LHA that would not include special event rental income
within the meaning of gate receipts. We noted that the deed says “[a]ll gate receipts received
by Grantee from visitors to Tulip Grove House on said land,” and we found nothing in that
language or the surrounding circumstances to indicate that the parties intended to restrict the
scope of the LHA’s obligation to money received from visitors who held an individual ticket
or who had an interest in history. We, therefore, held that the term “gate receipts” in the deed
includes “the rent paid to LHA for use of the property for special events.”

        On appeal, Plaintiff asserts that expenses should not be deducted prior to calculating
the heirs’ share of special event rental fees, pointing, again, to the deed’s broad language,
providing the heirs with a one-third share of “all gate receipts received by Grantee from
visitors to Tulip Grove House.” (Emphasis added). She also points to this Court’s previous
holding that “gate receipts” includes “the rent paid to LHA for use of the property.”
(Emphasis added). The LHA, on the other hand, focuses on the deed’s use of the term
“received” in the phrase “gate expenses received by Grantee from visitors to Tulip Grove
House.” (Emphasis added). The LHA claims that it “merely serves as a conduit” for some
of the rental fee because it is required to pay money to the State for taxes, and it uses other

                                                -6-
portions of the rental fee to pay third parties to adequately prepare, staff, and clean-up for the
special events. Thus, the LHA claims that it only “temporarily receives” the funds that
ultimately are used for expenses, and it contends that the deed only requires it to pay to the
heirs one-third of the amount of rental fees that it “receives” and “actually keep[s].”

        We are not persuaded by the LHA’s assertions. A plain reading of the language of
the deed requires the LHA to pay to the heirs a one-third share of “all gate receipts received
by [the LHA] from visitors to Tulip Grove House[.]” (Emphasis added). In our view, this
language unambiguously requires that the payment be calculated based on the total amount
of the receipt or rental payment received from visitors, not the amount of the receipt that the
LHA “actually keeps” after it pays expenses. There is nothing in the language of the deed
or the surrounding circumstances to indicate that the parties intended to allow the LHA to
deduct expenses from “all gate receipts” prior to paying Ms. Buntin and her heirs their one-
third share. “In Tennessee, ‘receipt’ has been defined as the ‘[a]ct of receiving; also, the fact
of receiving or being received. That which is received; that which comes in, in distinction
from what is expended, paid out, sent away, and the like.’” Mr. Transmission, Div. of
Intern. Transtech Corp. v. Yount, No. 88-43-II, 1988 WL 53339, at *5 (Tenn. Ct. App. May
27, 1988) (quoting State ex rel. v. Texas Co., 173 Tenn. 154, 158, 116 S.W.2d 583, 584
(1938)). The fact that the LHA may ultimately decide to spend a portion of the receipt it
receives from special events to pay expenses, rather than using its funds on hand, does not
mean that the rental fee was not a “gate receipt” when received.

        The deed simply requires payment of one-third of all gate receipts received, or coming
in, from visitors, including those visitors who visit the property for special events. The
parties to the deed were sophisticated and knowledgeable and they were represented by two
of the leading law firms in the city. As we said in Field II, “The individual lawyers involved
in the transaction would have made a short list of the city's well-known and respected
practitioners.” It is doubtful that they would have chosen language providing the heirs with
a share of “all gate receipts received by [the LHA] from visitors” if they had truly intended
for the heirs’ share to be calculated based upon the gate receipts ultimately “kept” by the
LHA, or the gate receipts remaining after the deduction of expenses.

        The course of dealing between the parties also illustrates that they did not intend for
the LHA to deduct expenses prior to calculating the heirs’ one-third share of the gate
receipts. As noted earlier, between 1965 and 2001, the LHA paid to Ms. Buntin and her heirs
over $300,000.00 out of the proceeds from the fees charged to admit people to the house.
It is undisputed that the LHA did not deduct expenses from those individual gate receipts




                                               -7-
prior to calculating the heirs’ one-third share.4

        The LHA argues on appeal that if it is required to pay the heirs their one-third share
“off the top” of the rental fee, then it is conceivable that the LHA could, after the payment
of expenses, receive less money for a special event rental than the heirs. The LHA argues
that this is an absurd result and that it could lead the LHA to discontinue renting the Tulip
Grove House for special events in the future or even to close Tulip Grove to public access
completely. While that decision would be unfortunate for all of the parties involved and the
citizens of Tennessee, we are constrained by the plain language of the agreement, and we
cannot rewrite the language of the deed because of the claimed harshness of the result. See
Baptist Memorial Hosp. v. Argo Const. Corp., 308 S.W.3d 337, 345 (Tenn. Ct. App. 2009)
(“this Court cannot rewrite the parties’ contract because its terms later prove to be
burdensome”).

        The LHA also argues on appeal that its interpretation of the deed should be adopted
by this Court because we recognized in Field II that Ms. Buntin was likely acting, at least
in part, with a donative intent when she entered into this transaction with the LHA. In Field


        4
             The record before us includes a transcript of the chancellor’s oral remarks at the hearing on
remand, although the trial court’s final order does not refer to the transcript or incorporate it by reference.
Still, the transcript does shed some light on the apparent reason for the chancellor’s ruling in favor of the
LHA. The chancellor stated:

        This Court is aware that the term "rental income," as used by accountants, at that time, does
        not equate to gross revenues. Ms. Field is entitled to one-third of the rental income at Tulip
        Grove for all special events. The term "rental income" is not gross revenues. I don't think
        I can be any clearer than that.
                 ....
                 . . . Because I see the use of accounting terms in the court opinion -- Court of
        Appeals opinion to reflect an attitude that she's entitled to one-third of the income. There's
        also a recognition that there are going to be expenses incurred. There are no deductions from
        the gate receipts for expenses because that's built into what they're doing. It's built into it.
                 When you have a special event, they are one-time charges. They are not built into
        the rent. . . .

This Court’s precise holding in Field II was that “the term ‘gate receipts’ in the deed includes the rent paid
to LHA for use of the property for special events.” Id. at *6 (emphasis added). Although the Court did refer
to the parties’ dispute over the issue of “special event income” and “rental income” in other sections,
including the introduction to the opinion and in our discussion of the issue of res judicata, this language was
not meant to suggest that Plaintiff was only entitled to a share of the “income,” in the sense of profit, that
the LHA earned from special events. More importantly, the deed does not use the term “rental income” but
rather “all gate receipts.” We must look to the deed in order to determine whether the parties intended for
expenses to be deducted prior to paying the heirs.

                                                      -8-
II, in the context of deciding whether to read an implied obligation into the deed that would
require the LHA to continue to generate gate receipts in order to pay the heirs a one-third
share of those receipts, we listed a number of reasons why such an implied obligation should
not be found in the present case, and we concluded by stating:

              Finally, to infer that the parties to the deed had an unexpressed intent
       to maximize the return to the grantor and her heirs would treat this transaction
       as a commercial arms-length deal free of any donative intent on the part of the
       grantor. The grantor, however, served as a board member of LHA from 1939
       to 1954. Her daughter-in-law served on the board from 1954 to 1983 and
       served as Regent of LHA from 1965 to 1969. The grantor's son and
       daughter-in-law actually lived at Tulip Grove during the time when the transfer
       was being negotiated. It would be easier to draw an inference that a wish to
       preserve Tulip Grove as part of the Hermitage was a substantial part of the
       consideration for the transfer.

The LHA now argues on appeal that this finding of a likely donative intent is “the law of the
case.” However, our previous recognition of Ms. Buntin’s donative intent does not require
us to rule in the LHA’s favor on the issue before us. Ms. Buntin’s donative intent was more
relevant when we were deciding whether to read into the deed an implied obligation to
continuously generate gate receipts. However, here, we are interpreting an express term of
the parties’ agreement, by which the LHA expressly agreed to pay the heirs one-third of all
gate receipts it received from visitors. Ms. Buntin’s donative intent does not require a
different interpretation of this clear language, and we will not read into the deed a provision
allowing for the deduction of expenses where no such language exists. We also note that
while Field II recognized the likelihood that Ms. Buntin’s donative intent was “a substantial
part” of the consideration for the transfer, the Court did not find or even suggest that Ms.
Buntin was solely motivated by charity. She obviously provided a source of income for her
and her heirs for ninety-nine years, and she provided that the property would revert to the
heirs if payments ceased. Notably, in Field II, the Court went on to hold that “gate receipts”
was broad enough to encompass income from special event rentals, despite its previous
statements about Ms. Buntin’s donative intent.

        Finally, we note that the LHA continues to argue on appeal that the position taken by
Plaintiff would require it to pay to Plaintiff one-third of all refundable security deposits and
sales taxes. However, Plaintiff has made it clear, before the trial court and again on appeal,
that she is not seeking a one-third share of the security deposits or the sales taxes because she
does not consider those charges to be “gate receipts.” Consequently, there is no controversy
as to those specific charges, and we will not address them further on appeal.



                                               -9-
                                     V.   C ONCLUSION

        For the aforementioned reasons, the decision of the chancery court is hereby reversed
and remanded for further proceedings to include a determination of the amount owed to
Plaintiff for her share of the “gate receipts” received by the LHA in the form of special event
rentals. In making this calculation, the LHA is not entitled to deduct expenses prior to
determining the heirs’ one-third share. Costs of this appeal are taxed to the appellee, the
Ladies’ Hermitage Association, for which execution may issue if necessary.

                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.




                                             -10-
