                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 January 21, 2014 Session

      ACUFF INTERNATIONAL, INC. v. SANYO MANUFACTURING
                       CORPORATION

               Direct Appeal from the Circuit Court for Shelby County
                    No. CT-002660-10      Robert S. Weiss, Judge


               No. W2013-01146-COA-R3-CV - Filed January 30, 2014


This case involves issues of breach of contract and negligence. After a bench trial, the trial
court found in favor of the Defendant/Appellee manufacturer. Because the trial court’s order
does not contain sufficient findings of fact and conclusions of law to satisfy the requirements
of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial
court and remand for the entry of an order with appropriate findings of fact and conclusions
of law.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

Lawrence M. Magdovitz, II, Cordova, Tennessee, for the appellant, Acuff International , Inc.

William R. Bradley, Memphis, Tennessee, for the appellee, Sanyo Manufacturing
Corporation.

                                         OPINION

                                        Background

       The Plaintiff/Appellant Acuff International, Inc. (“Acuff”) engages in machinery
moving and hauling. In 2007, the Defendant/Appellee Sanyo Manufacturing Corp. (“Sanyo”)
hired Acuff to move several hundred thousand pounds of injection molding manufacturing
equipment to Mexico from Forrest City, Arkansas. On October 25, 2007, Acuff provided a
quote for its services to Sanyo. The quote detailed that Sanyo would pay Acuff $99,600.00
for rigging and $198,000.00 for transportation. The quote also contained a provision allowing
a one-and-one-half percent finance charge on any unpaid balances, as well as attorney’s fees.
Acuff asserted that a contract was created based on the terms in the quote, including the
finance charge and attorney fee provisions.

       Sanyo, however, asserted that a contract was not created until Sanyo issued a purchase
order to Acuff on October 29, 2007. The purchase order provided that the price for rigging
was $99,500.00, and the price for transportation was $198,000.00. According to Sanyo,
Acuff was hired only to perform the rigging, as the transportation was to be performed by
subcontractors. The purchase order contained no provisions regarding attorney’s fees or
finance charges. The purchase order stated that it would be deemed accepted as written
unless Acuff promptly advised Sanyo to the contrary.

       Work began on November 26, 2007. Acuff asserted, however, that Sanyo
misrepresented the weight of the machinery that was to be moved pursuant to the contract.
As a result, Acuff asserted that it was required to incur additional costs to move the
machinery, including additional payments to subcontractors. Acuff asserted that immediately
upon learning of the misrepresentation, it informed Sanyo that there would be additional
costs. According to Acuff, Sanyo’s agent agreed to pay the additional costs.

       The work was completed in December 2007. Sanyo paid the balance on the purchase
      1
order. In addition, Sanyo paid an additional $22,029.00 based on an oral agreement of the
parties to move additional equipment. Several months after the work was completed,
however, Acuff issued new invoices to Sanyo, asserting that it was owed additional amounts.
According to the record, the invoices showed additional amounts owed by Sanyo, including:

•         Invoice number 5246 TAL2,3, dated August 28, 2008: $20,855.00 2
•         Invoice number 5246 TAL6,7, dated September 11, 2008: $11,500.00
•         Invoice number 5246 TAL8,9, dated September 11, 2008: $10,925.00

Acuff asserted that these costs were due to the misinformation regarding the weight of the
machinery, which resulted in increased towing costs and considerable delays. Sanyo refused
to pay the additional charges.

          1
          There is no dispute in this case that Sanyo remitted to Acuff the balance on the original contract
pursuant to the quote and the purchase order. The dispute in this case concerns only any modification to that
contract that occurred as a result of the alleged weight misrepresentation.
          2
         Invoice number 5246 TAL2,3 originally contained a charge for $22,655.00. However, the invoice
noted that Sanyo had made a partial payment of $1,800.00, which was credited to the balance. Thus, the
amount unpaid at the time of trial on invoice number 5246 TAL2,3 was $20,855.00.

                                                    -2-
        Acuff filed suit for breach of contract and negligence on May 25, 2010. Sanyo
answered, denying the material allegations. Sanyo subsequently filed a motion for summary
judgment, which was held in abeyance pending trial. The parties proceeded to a bench trial.
At trial, Acuff’s president, Susan Acuff, testified that Sanyo had provided incorrect weights
for some of the machinery to be moved, resulting in a difference of 18,000 pounds. Ms.
Acuff testified that she informed Sanyo’s representatives of the problem via email. There was
some dispute as to whether this email, and several other disputed documents, had been
disclosed to Sanyo during discovery. Regardless, no email in which Sanyo agreed to specific,
additional charges was submitted as evidence at trial.

        According to Acuff, the weight discrepancy required additional trucks and more
money to move the machinery. Acuff employees testified that the weight of the material to
be moved was incorrect and that Acuff incurred additional expenses to move the material.
For example, according to Ms. Acuff, Acuff was required to pay additional amounts beyond
those contemplated in the original quote in order to pay various subcontractors for
transporting the increased weight. Sanyo, however, asserted that there was no miscalculation,
or that if there was a miscalculation as to the weight of the machinery, it was the fault of the
manufacturer of the equipment, rather than Sanyo. Thus, Sanyo argued it had not committed
negligence in misrepresenting the weight of the equipment. In addition, Sanyo argued that
there was no agreement to pay additional funds for the allegedly increased weight—Ms.
Acuff stated that she and the Sanyo representative made the agreement through email;
however, Sanyo argued that no emails were introduced at trial in which Sanyo agreed to pay
additional funds. In contrast, Ms. Acuff asserted that all parties had access to a spreadsheet
that was regularly updated. According to Ms. Acuff , the spreadsheet contained the additional
charges agreed to by the parties. There was also some dispute as to whether Acuff had
produced documents showing additional invoices from the transportation subcontractors that
Acuff alleged it was required to pay due to Sanyo’s alleged misrepresentation.

        The trial court issued a verbal ruling on April 5, 2013. On April 11, 2013, the trial
court filed a written ruling denying all of Acuff’s claims. The trial court’s written order
includes, by reference, the trial court’s ruling from the bench. In its ruling, the trial court
stated:

              [H]aving reviewed . . . the testimony and reviewing the exhibits
              that were presented to the Court, the Court was troubled by the
              documentation that was presented, in that while I understood the
              basis for the gap in time for why bills would have—bills were
              sent out eight months later, the problem is, is that I don't—what
              wasn't presented to the Court was I couldn't support any of those
              bills. And, in fact, some of the—some of the invoices, part—

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              parts of the invoices were actually . . . paid as part of the original
              payments. So because this Court just didn't have a clear record
              as far as what was actually due or outstanding, and the Plaintiff
              testified that, you know, she had to pay all these bills within two
              weeks and—but then didn't—there was no documentation to
              support that any of those—any of these additional charges that
              she was seeking compensation for were ever paid, for that
              reason, I am going to find for the Defense. The remaining court
              costs will be equally divided by the parties . . . .

       From this order, Acuff appeals.

                                           Analysis

Acuff raises one issue for review, which is taken from its brief:

              Whether the trial court correctly found, based on the evidence
              presented at trial, that Plaintiff Acuff International, Inc. had not
              incurred additional expenses in performing rigging and hauling
              services for Defendant Sanyo Manufacturing Corp. And
              therefore Acuff was not entitled to payment of $43,280.00, plus
              interest in the amount of $15,990.86, plus costs and reasonable
              attorney’s fees of $19,756.95, for a total of $79,027.81.

       Typically, in a bench trial, this Court reviews 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)). However, after
reviewing the record, we have determined that the trial court failed to make sufficient
findings of fact and conclusions of law to support its decision in this case. Accordingly, we
vacate the judgment of the trial court and remand for further proceedings.

       Acuff’s complaint in this case concerns two distinct causes of action: breach of
contract and negligence. To maintain an action for breach of contract, a plaintiff must
establish (1) the existence of an enforceable contract, (2) non-performance of the contract
amounting to a breach of that contract, and (3) damages flowing from the defendant's
nonperformance. Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 374 (Tenn. Ct.
App. 2006). In order to make out a claim for negligence, the plaintiff must likewise show:



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              (1) duty of care owed by the defendant to the plaintiff; (2)
              conduct falling below the applicable standard of care amounting
              to a breach of that duty; (3) an injury or loss; (4) causation in
              fact; (5) proximate, or legal cause.

Satterfeild v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). In addition, this
Court has held that the requisite elements to establish a cause of action for negligent
misrepresentation are:

              One who, in the course of his business, profession, or
              employment, or during a transaction in which he had a pecuniary
              interest, supplies false information for the guidance of others in
              their business transactions, is subject to liability for pecuniary
              loss caused to them by their justifiable reliance upon such
              information, if he fails to exercise reasonable care or
              competence in obtaining or communicating the information.

McElroy v. Boise Cascade Corp., 632 S.W.2d 127, 130 (Tenn. Ct. App. 1982) (quoting
Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 232 (Tenn. Ct. App. 1976)).

        The specific issues that make up the causes of action in this case are myriad and fact-
intensive. With regard to the contract claim, the issues include: (1) when the contract
between Acuff and Sanyo was formed; (2) whether the terms of the contract provided for a
finance charge and attorney’s fees; (3) whether a contract was formed regarding additional
payments for the expenses allegedly incurred due to the additional weight; (4) whether Acuff
actually incurred any additional expenses due to the alleged misrepresentation; and (5)
whether Sanyo breached any of its contractual obligations with Acuff. In addition, the court
was also required to determine whether Sanyo committed negligence by providing Acuff
with the incorrect weights for the machinery to be moved. Respectfully, the trial court’s order
fails to offer sufficient guidance on the resolution of any of these issues.

        It is well settled that, in bench trials like the one in this case, courts must make
findings of fact and conclusions of law to support their rulings. Rule 52.01 of the Tennessee
Rules of Civil Procedure provides, in pertinent part:

              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. The
              findings of a master, to the extent that the court adopts them,
              shall be considered as the findings of the court. If an opinion or

                                              -5-
               memorandum of decision is filed, it will be sufficient if the
               findings of fact and conclusions of law appear therein.
Id.

        Sanyo asserts that the lack of factual findings and legal conclusions in the trial court’s
order is due to Acuff’s representation that it would not appeal the trial court’s ruling. Prior
to July 1, 2009, trial courts were only required to make specific findings of fact and
conclusions of law “upon request made by any party prior to the entry of judgment.” See
Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 337 S.W.3d 771, 791
(Tenn. Ct. App. 2010) (noting the amendment). However, the current version of Rule 52.01
requires the court to make these findings regardless of a request by either party. Id. Thus, the
trial court was obligated to set forth findings of fact and conclusions of law in its order,
regardless of any alleged representation on the part of Acuff’s counsel regarding the filing
of an appeal.

        Further, 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. April 21, 2004)). Without
findings of fact, we cannot discern the basis for the trial court’s decision, “and we are unable
to afford appropriate deference to the trial court’s decision.” In re Connor S.L., No. W2012-
00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov.8, 2012) 4.

        Generally, the appropriate remedy when a trial court fails to make appropriate findings
of fact and conclusions of law pursuant to Rule 52.01 is to “vacate the trial court's judgment
and remand 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). Sanyo, however, cognizant of the lack of findings or conclusions in the trial
court’s order, urges this Court to “soldier on” with our review despite the lack of appropriate
findings of fact or conclusions of law in the trial court’s order. Indeed, this Court has
indicated that we may “soldier on” with our review despite the trial court’s failure to comply
with Rule 52.01, 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

                                               -6-
                 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 (Tenn. Ct. App.
Feb. 22, 2013). The circumstances outlined above, however, are not present in this case.
First, the claims in this case involve fact-intensive issues regarding both breach of contract
and negligence. Second, the trial court’s order is unclear as to the basis of its ruling. As
previously stated, the trial court’s order merely noted that Acuff did not provide sufficient
documentation to support its claim. The trial court, however, fails to clarify as to whether
Acuff’s failings concern its contract claim, its negligence claim, or both. The trial court
further fails to make any findings regarding whether Acuff’s failure to prove its case relates
to a failure to prove that Acuff and Sanyo entered into a valid contract, a failure to show a
misrepresentation as to the weight, a failure to show that additional expenses had, in fact,
been incurred by Acuff as a result of the incorrect weight, or that all additional charges were
paid in full by Sanyo prior to trial. Further, the trial court failed to make any express findings
regarding the credibility of the any of the witnesses. Without findings clarifying the
reasoning behind the trial court’s ruling we are unable to conduct a meaningful appellate
review. Accordingly, we vacate the judgment and remand to the trial court for entry of an
order fully compliant with Rule 52.01.3

                                                 Conclusion

       The judgment of the Circuit Court of Shelby County is vacated and this cause is
remanded to the trial court for all further proceedings as are necessary and consistent with
this Opinion. Costs of this appeal are taxed one-half to Appellant, Acuff International, Inc.,
and its surety, and one-half to Appellee Sanyo Manufacturing Corp., for all of which
execution may issue, if necessary.




        3
        The resolution of the issues in this case revolve, at least in part, on the credibility of the witnesses.
On remand, the trial court should endeavor to make express credibility findings in order to further facilitate
meaningful appellate review, as well as allow this Court to afford appropriate deference to the trial court’s
ruling.

                                                      -7-
      _________________________________

      J. STEVEN STAFFORD, JUDGE




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