                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    June 24, 2002 Session


                       GUY R. JENKINS, ET AL. v. DAN GIBBS

                      Appeal from the Chancery Court for Knox County
                          No. 142261-3   Sharon Bell, Chancellor

                                 FILED SEPTEMBER 5, 2002

                                 No. E2001-01802-COA-R3-CV



After a dispute arose over the ownership of 1000 shares of stock in City Bonding Company (“City
Bonding”), Guy Jenkins and Aubrey Allen Jenkins (“Plaintiffs”) sued Dan Gibbs (“Defendant”)
seeking a determination as to how many shares of stock were owned by the various parties. Guy
Jenkins also claimed Gibbs unlawfully procured the breach of a contract Guy Jenkins had with City
Bonding. The Trial Court granted Gibbs summary judgment on the unlawful procurement of breach
of contract claim. After a trial on the remaining issues, the Trial Court determined Gibbs owned 490
shares of stock, Guy Jenkins owned 255 shares, and the remaining 255 shares were unissued. All
parties appealed the Trial Court’s determination with respect to ownership of the stock. Guy Jenkins
also appealed the granting of summary judgment on his claim against Gibbs for unlawful
procurement of breach of contract. We vacate the summary judgment granted to Gibbs and affirm
the judgment in all other respects.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
JAMES CURWOOD WITT, JR., SP . J., joined.


James S. MacDonald, Knoxville, Tennessee, for the Appellants Guy R. Jenkins and Aubrey Allen
Jenkins.

John A. Lucas, Knoxville, Tennessee, for the Appellee Dan Gibbs.
                                                      OPINION

                                                     Background

                Plaintiffs filed this lawsuit seeking corporate records and other documents pertaining
to City Bonding which were in Gibbs’ control. Plaintiffs further claimed there was a dispute as to
the ownership of the 1000 shares of stock in City Bonding and sought a declaratory judgment asking
the Trial Court to declare the ownership interests of the respective parties. The Trial Court dismissed
the portion of the complaint seeking production of corporate records for failure to comply with
statutory requirements. An Amended Complaint was filed seeking essentially the same relief as well
as setting forth a cause of action against Gibbs based on Guy Jenkins’ claim that he had a contract
with City Bonding for compensation in the amount of $1,139.24 per month and this contractual
obligation was breached. Guy Jenkins claimed this was an unlawful procurement of breach of
contract by Gibbs in violation of Tenn. Code Ann. § 47-50-109, thereby entitling him to treble
damages.

                Gibbs filed a motion for summary judgment on the procurement of breach of contract
claim. Gibbs asserted that on June 8, 1999, City Bonding adopted a resolution terminating the
monthly payments it was making on behalf of Guy Jenkins. The parties submitted affidavits and
deposition testimony setting forth their version of the facts on this issue. The Trial Court granted
Gibb’s motion for summary judgment on the procurement of breach of contract claim, leaving for
trial the primary issue of the ownership interests of the respective parties in City Bonding.

                At trial, the parties stipulated City Bonding was formed in 1982 and 1000 shares of
stock were issued at that time, of which Frank Harper received 600 shares. The remaining 400
shares were issued to Joe Jenkins or to Joe Jenkins and Aubrey Jenkins jointly. 1 In January of 1984,
the stock certificates were turned in and the stock was reissued with Joe Jenkins receiving 490
shares, Guy Jenkins receiving 255 shares, and John Pollock receiving 255 shares. This is where any
agreement between the parties ends.

                Gibbs testified that in 1985, Guy Jenkins gave him 250 shares of stock in City
Bonding, although no stock certificate was ever given to Gibbs and there is no documentation
verifying this gift actually took place or that it was completed. Gibbs further claims he purchased
490 shares of stock from Joe Jenkins for $13,500.00 on January 3, 1986. Gibbs identified the
cancelled check dated January 3, 1986, for $13,500, and also identified a notation on the check
which stated “for four hundred and ninety shares of City Bonding Company.” Since purchasing the
stock, Gibbs has served as general manager of City Bonding taking care of the day-to-day operations.
He began making a salary of approximately eight hundred dollars per week sometime after this stock
purchase. After purchasing the 490 shares, Gibbs received advances on his salary from City Bonding
in order to pay off money he borrowed in order to purchase the stock. Gibbs claims Guy Jenkins was


         1
            There is a dispute as to whether Aubrey Allen Jenkins received any stock. Aubrey Allen Jenkins was a minor
at all relevant times and there is further dispute over whether any stock he may have received was effectively transferred.

                                                           -2-
aware of this arrangement for paying off the money Gibbs borrowed. Gibbs never heard anyone
claim Aubrey Allen Jenkins owned any shares of stock, and he is not aware of any corporate records
reflecting any ownership interest on behalf of Aubrey Allen Jenkins. The first time Gibbs heard
anyone claim Aubrey Allen Jenkins owned any stock was in 1999, and he heard this from Guy
Jenkins’ attorney.

                 Part of the day-to-day operations of City Bonding involved preparing semi-annual
financial statements on behalf of the shareholders and filing these statements and appearance bonds
with various courts in the counties in which City Bonding conducted business. Gibbs testified the
documents filed with the Knox County Criminal Court since 1986 show Guy Jenkins owning 750
shares of stock and Gibbs owning the remaining 250 shares. According to Gibbs, Guy Jenkins had
very little to do with the day-to-day operations of City Bonding. Gibbs stated when these financial
statements were first prepared, his ownership interest was limited to the 250 shares that had been
given to him and they were accurate. These same figures were just copied and used on later financial
statements even though he had purchased the additional 490 shares.

                Gibbs testified City Bonding paid approximately $1,500 per month on a personal note
of Guy Jenkins. This payment continued to be made by City Bonding up until the time the present
lawsuit was filed. Gibbs stated in addition to the $1,500 per month, Guy Jenkins also received cash
at various times and City Bonding paid the majority of the payments on a Mercedes owned by Guy
Jenkins. None of the payments made to Guy Jenkins or to Gibbs were corporate stock dividends.
Throughout City Bonding’s history, the company compensated officers and employees by paying
some of their bank debts.

                Attorney Jerome Templeton (“Templeton”) testified by way of deposition. Templeton
had nothing to do with the formation of City Bonding or the original issuance of stock. He became
involved with City Bonding when it was being acquired by Guy Jenkins. When asked if he had
occasion to inform himself about who owned how much stock, Templeton responded his recollection
was vague but after looking at his files he did have “something to do with that.” Templeton went
on to add he really did not have any independent recollection of most of the matters involved with
the corporation. During his initial representation of City Bonding, Templeton received a letter and
other information from Norman Williams (“Williams”), the attorney who represented City Bonding
at the time of incorporation. Based on the information contained in this letter, Templeton made
numerous handwritten notes at that time. There was a lengthy argument at trial over whether
Williams’ letter and Templeton’s handwritten notes based on the letter constituted hearsay.
Plaintiffs’ counsel argued it was a business record and fell within the applicable hearsay exception.
Defendants’ counsel disagreed for several reasons, one being Templeton’s handwritten notes were
made well after the events described in the letter took place (i.e., when the stock was originally
issued), and, therefore, were not made at or near the time of the event. Defendant’s counsel claimed
Templeton had no personal knowledge of the events described in Williams’ letter because he was
not even involved in the corporate matters at that time. The Trial Court concluded this evidence was
hearsay and did not constitute a business record.



                                                -3-
                Templeton also was questioned about notes he made at a meeting in January of 1986
when stock apparently was received by Guy Jenkins. Templeton stated the stock was either given
to Guy Jenkins or he paid for it. Templeton then added: “I don’t know about that. . . . I can’t recall
that, I don’t know that I knew at the time.” The Trial Court again ruled this was inadmissible
hearsay, and that it did not qualify under the past recollection recorded exception because Templeton
never knew about the subject matter to begin with.2 Templeton testified the stock composition in
1984 was Joe Jenkins 490 shares, Guy Jenkins 255 shares, and John Pollock 255 shares. Templeton
later attempted to testify regarding his handwritten notes setting forth the stock composition in later
years. When asked where these figures came from or why he was writing them down, Templeton
responded “I do not know.” He went on to add he did not know whether “it’s something that was
done or whether it was something that I thought should be done.” Templeton then pointed out he
had no independent recollection at all on that matter. Some of this testimony was likewise excluded.

                 Guy Jenkins testified it was after this lawsuit was filed before he first learned Gibbs
claimed to have purchased 490 shares of stock from Joe Jenkins. Guy Jenkins denied ever giving
approval for Gibbs to use borrowed corporate funds to repay a personal loan he made in order to
purchase the stock. Guy Jenkins was approached by his father to oversee City Bonding, and agreed
to assist only if he (i.e. Guy Jenkins) had “full control.” According to Guy Jenkins, when the stock
was initially issued Frank Harper had 600 shares, and Joe and Aubrey Allen Jenkins jointly
controlled the other 400 shares. In 1984, all of the stock was reissued with 255 shares being owned
by Guy Jenkins, 255 shares being owned by John Pollock, and 490 shares being owned by Joe
Jenkins. John Pollock then turned in his stock and the 255 shares became treasury shares. Guy
Jenkins did not know his brother, Joe Jenkins, sold his 490 shares to Gibbs and has no personal
knowledge about that alleged transaction. According to Guy Jenkins, in January of 1986, all the
stock owners essentially turned in their stock and it was once again reissued with the new stock
composition being: Guy Jenkins owning 550 shares, Gibbs owning 250 shares, and Aubrey Allen
Jenkins owning 200 shares. Guy Jenkins testified he gave Gibbs these 250 shares of stock.

                The deposition of Aubrey Allen Jenkins was offered into evidence at trial. Aubrey
Allen Jenkins was 19 years old at the time of his deposition. He first learned he supposedly was a
stockholder in City Bonding from his uncle, Guy Jenkins. He learned this about a year before his
deposition took place “but that was scratchy”. He heard more about his supposed stock ownership
in the two months prior to his deposition. Aubrey Allen Jenkins testified he had no personal
knowledge about whether or not he actually owned any stock in City Bonding, and he has never seen
a stock certificate evidencing his ownership of stock.

                 Joe Jenkins also testified via deposition. Joe Jenkins is the brother of Guy Jenkins
and father of Aubrey Allen Jenkins. According to Joe Jenkins, in 1984 he owned 490 shares of stock,
Guy Jenkins owned 255 shares, and John Pollock owned the remaining 255 shares. Joe Jenkins does
not recall his son Aubrey ever being a shareholder in City Bonding. Joe Jenkins stated he never put


         2
           Other objections to certain testimony and the admissibility of exhibits were made on the same basis and were
likewise ruled inadmissible hearsay by the Trial Court for the reasons set forth above.

                                                         -4-
any stock in his son’s name and never saw a certificate of stock showing Aubrey as an owner. Joe
Jenkins claimed the first time he ever heard anything about his son Aubrey owning any stock was
“[a]fter all this lawsuit started.” Joe Jenkins acknowledged he sold his 490 shares of stock to Dan
Gibbs for $13,500.00.

               John Walker (“Walker”) was called as an expert witness. Walker is a licensed
attorney in Knoxville. Walker testified to his experience as an attorney handling corporate law
matters. Walker testified the corporate records of City Bonding were “substantially incomplete,” but
he reviewed what records were available including the corporate minute book, stock certificates, and
other records. He also reviewed the depositions of Gibbs and the various members of the Jenkins
family. Walker testified the reconstructed stock transfer ledger prepared by counsel for Gibbs
showing what Gibbs believed to be the stock ownership was reconstructed in a manner consistent
with generally accepted corporate law principles and procedures. Walker also stated he questioned
whether Aubrey Allen Jenkins ever had any interest in the stock. Walker based this conclusion
primarily upon the depositions of Aubrey Allen Jenkins and Joe Jenkins. Walker went on to add
even if Aubrey Allen Jenkins did own stock, it was conveyed away by his father Joe Jenkins who
had “full power and right to transfer the interest of his son in those shares.”

               After a trial, the Trial Court issued its opinion as to the respective ownership interests
of the parties. After hearing further argument, the Trial Court issued a Supplemental Opinion
revising some of its initial findings. In the Supplemental Opinion, the Trial Court found as follows:

                       (1) Phase one represents the ownership of six hundred (600)
                shares by Mr. Harper, and four hundred shares ownership between
                Joe Jenkins and Aubrey Allen Jenkins as of September, 1983.

                        (2) Phase two is the reissue to Joe Jenkins of four hundred
                ninety (490) shares, to Guy Jenkins of two hundred, fifty-five (255)
                shares, and to John Pollock of two hundred, fifty-five (255) shares in
                January, 1984.

                       (3) Respectfully, the Court cannot find by a preponderance of
                the evidence that any of the issuance of shares in phase two came
                from any particular stock, just that it came from the pool of stock
                from phase one.

                       (4) The Court cannot, despite its earlier finding, determine
                that the shares of the then minor, Aubrey Allen Jenkins, were
                conveyed away from him without authority, and cannot place a
                constructive trust on the shares in phase two.

                          The reasons for this finding are that the theory of
                constructive trust was not plead nor argued, and even if it had been,


                                                  -5-
               there is no evidence that the defendant had any knowledge of an
               adverse claim.

                       (5) Joe Jenkins sold his four hundred, ninety (490) shares to
               the defendant in January, 1986, thereby vesting ownership in said
               stock in defendant.

                       (6) As to the two hundred, fifty shares purportedly transferred
               to the defendant by Guy Jenkins in approximately January, 1986, the
               Court finds that the transfer was intended as a gift, but that the gift
               failed for want of delivery, so that Guy Jenkins remained owner of
               those shares.

                       (7) The remaining two hundred, fifty-five shares signed over
               to the corporation by John Pollock have not been reissued, so that
               they are found to be unissued treasury shares.

              Plaintiffs and Gibbs appeal the Trial Court’s determination with regard to the
respective ownership interests of the parties in City Bonding. Plaintiffs also appeal the exclusion
of various portions of Templeton’s deposition. Plaintiff Guy Jenkins appeals the granting of
summary judgment to Gibbs on his procurement of breach of contract claim.

                                            Discussion

               First, we will discuss Guy Jenkins’ appeal of the granting of summary judgment on
his claim against Gibbs for procurement of breach of contract. The standard for review of a motion
for summary judgment is set forth in Staples v. CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

                       The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of Tenn.
               R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
               50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
               S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
               56.04 provides that summary judgment is appropriate where: (1) there
               is no genuine issue with regard to the material facts relevant to the
               claim or defense contained in the motion, see Byrd v. Hall, 847
               S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
               to a judgment as a matter of law on the undisputed facts. See
               Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
               1993). The moving party has the burden of proving that its motion


                                                -6-
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811
               S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
               judgment makes a properly supported motion, the burden shifts to the
               nonmoving party to set forth specific facts establishing the existence
               of disputed, material facts which must be resolved by the trier of fact.
               See Byrd v. Hall, 847 S.W.2d at 215.

                       To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party’s
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
               party fails to negate a claimed basis for the suit, the non-moving
               party’s burden to produce evidence establishing the existence of a
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the non-
               moving party may not simply rest upon the pleadings, but must offer
               proof to establish the existence of the essential elements of the claim.

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

              Gibbs denied the existence of any contract with Guy Jenkins entitling him to monthly
payments. In his affidavit, Gibbs stated: “After Mr. Jenkins filed this suit against me, I consulted
with my counsel regarding whether the Company was obligated to continue making monthly loan
payments … on behalf of Mr. Jenkins.” (emphasis added). Based on this discussion, Gibbs
concluded Guy Jenkins would only be entitled to receive dividends if any were paid. Since no
dividends were ever paid, he could discontinue the payments. He also was informed corporate
employees could receive salaries, but since Guy Jenkins was not an employee, he was not entitled


                                                 -7-
to the payments as a salary either. Therefore, “the Company elected [pursuant to a corporate
resolution] to terminate the monthly payments to Home Federal Bank that the Company had been
making on Mr. Jenkins’ behalf.” According to Gibbs, he was acting on behalf of the corporation
when terminating these payments, and he is, therefore, entitled to immunity.

               Guy Jenkins testified he has received $1,000.00 per month “in lieu of salary, director
fees, consultant fees, committee fees, dividends or other forms of corporate remuneration” since
early 1986. This amount was later increased to $1,500.00 per month. While Guy Jenkins
acknowledged there was no written contract, he claimed “at all times there existed an oral contract
between himself and the corporation … said contract between the Affiant and the corporation was
negotiated directly with Gibbs, … Gibbs confirmed this contract between Guy R. Jenkins and CBI
directly to a Mr. Wes Goddard at Home Federal Bank some two to three years ago.…” According
to Guy Jenkins, he received these payments until Gibbs unilaterally, arbitrarily, and maliciously
terminated them in June of 1999.

               Although the Trial Court granted summary judgment on the claim for procurement
of breach of contract, the Trial Court, unfortunately, did not set forth its reason as to why summary
judgment was appropriate. Thus, we do not know whether the Trial Court: (1) determined there was
no contract between City Bonding and Guy Jenkins; (2) determined there was a contract but there
was no breach; or (3) determined there was a contract and a breach, but Gibbs negated an essential
element of the claim or was immune.

                We believe the affidavits of Guy Jenkins and Gibbs create a genuine issue of material
fact regarding whether there was a contract between City Bonding and Guy Jenkins for the payment
of $1,500.00 per month. Guy Jenkins testified he was entitled to these payments not just because
of his ownership interest in City Bonding but also because he was liable for several million dollars
on various bonds. Gibbs argues on appeal that these two situations do not, by themselves, legally
entitle Guy Jenkins to monthly payments, and we agree. This, however, does not mean an oral
contract was not voluntarily entered into to compensate him for his ownership or potential liability
on the bonds. In a nutshell, we believe the testimony set forth above creates a genuine issue of
material fact regarding whether there was an oral contract between Guy Jenkins and City Bonding.

                 Even if there was a contract, Gibbs still would be entitled to summary judgment if
the undisputed material facts demonstrate that there was no breach, or that Gibbs negated an essential
element of the claim, or that Gibbs has a defense to the claim, such as his claim of immunity. On
appeal, we cannot determine if there was a breach of contract without knowing what the terms of that
contract, if one exists, are, a factual determination not made by the Trial Court. Therefore, we
cannot affirm the granting of summary judgment unless the undisputed material facts demonstrate
that Gibbs negated an essential element of the procurement of breach of contract claim or established
he is entitled to immunity.

             Gibbs bases his claim to immunity on language found in Forrester v. Stockstill, 869
S.W.2d 328 (Tenn. 1994). In Forrester, our Supreme Court quoted with approval the following


                                                 -8-
from Thomas G. Fischer, Annotation, Liability of Corporate Director, Officer, or Employee for
Tortious Interference with Corporation's Contract with Another, 72 A.L.R.4th 492, 501 (1989):

               Some courts have recognized that generally a corporate director,
               officer, or employee is not liable for tortiously interfering with a
               corporate contract, because he is considered a party to the contract, as
               long as he is acting to serve the corporate interests, or unless his
               activity involves individual separate tortious acts. Courts have also
               recognized, however, that a corporate director, officer, or employee
               may be liable for tortiously interfering with a corporate contract if he
               is acting outside the scope of his authority, acting with malice, or
               acting to serve his own interests.

Forrester, 869 S.W.2d at 333. The Forrester Court noted a claim for wrongful interference with an
employment contract by a third person was actionable only if that person stood as a third party to the
employment relationship. Id. at 331. The Court in Forrester later added:

               A corporation can act only upon the advice of its officers and agents,
               and its officers and directors have a duty to serve the corporation.
               Important societal interests are served by corporations having the
               clear and candid advice of their officers and agents. Fear of personal
               liability would tend to limit such advice. Consequently, when an
               officer, director, or employee of a corporation acts within the general
               range of his authority, and his actions are substantially motivated by
               an intent to further the interest of the corporation, in claims of
               intentional interference with employment, the action of the officer,
               director, or employee is considered to be the action of the corporation
               and is entitled to the same immunity from liability.

Id. at 334-35. Although the present case does not involve a claim for interference with an
employment contract, we believe Forrester is nevertheless applicable because the “societal interests”
discussed in Forrester apply with equal force regardless of whether the underlying claim is for
interference with an employment contact or procurement of breach of a non-employment contract.
In the present case, we believe Gibbs is immune from liability on the procurement of breach of
contract claim if he acted within the general range of his authority and his actions were substantially
motivated by an intent to further the interest of the City Bonding. Forrester, 869 S.W.2d at 334-35.
In his affidavit, Gibbs candidly acknowledged he met with his attorney to determine if the payments
could be stopped only “[a]fter Mr. Jenkins filed this suit against me.” In our opinion, a genuine issue
of material fact exists as to whether Gibbs was substantially motivated by an intent to further the
interest of City Bonding or whether he was substantially motivated to serve his own interest by
retaliating against Guy Jenkins for filing this lawsuit.




                                                 -9-
               In light of the foregoing, we vacate the grant of summary judgment to Gibbs on the
claim for procurement of breach of contract and remand this claim for further proceedings consistent
with this opinion. In so doing, we express no opinion on whether there actually was a contract
between City Bonding and Guy Jenkins and, if so, what its terms were or if it was breached. We also
express no opinion on whether Gibbs unlawfully procured a breach of contract, if one exists, or
whether Gibbs is entitled to immunity. We hold only that summary judgment on this claim on the
record before us was inappropriate for the reasons set forth above.

               With regard to the remaining issues on appeal, the factual findings of the Trial Court
are accorded a presumption of correctness, and we will not overturn those factual findings unless the
evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,
727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de novo
standard of review, according no deference to the conclusions of law made by the lower courts.”
Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

              Next, we address the Trial Court’s exclusion of portions of Templeton’s deposition
and accompanying exhibits as hearsay. Plaintiffs argue Templeton had personal knowledge of the
matters which were excluded or they were admissible through one of the various exceptions to the
hearsay rule.

                 Admissibility of evidence is within the sound discretion of the trial judge. “When
arriving at a determination to admit or exclude even that evidence which is considered relevant trial
courts are generally accorded a wide degree of latitude and will only be overturned on appeal where
there is a showing of abuse of discretion.” Tompkins v. Annie’s Nannies, Inc., 59 S.W.3d 669, 674-
675 (Tenn. Ct. App. 2000)(quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442
(Tenn. 1992)). Templeton’s recollection as to the events he testified to was extremely vague, at best.
He admitted either being unable to recall numerous matters or not having any knowledge of the
events when they took place. During the course of the trial, the Trial Court carefully listened to both
sides when ruling on the admissibility of this evidence. After reviewing the entire deposition of
Templeton, we are unable to conclude the Trial Court erred when it made the various rulings
excluding portions of Templeton’s testimony. We, therefore, affirm the evidentiary rulings of the
Trial Court regarding the exclusion of portions of Templeton’s testimony.

               Plaintiffs also argue Defendant waived the right to object to the admissibility of the
excluded portions of Templeton’s testimony. Prior to the deposition, the parties stipulated "[a]ll
objections except as to the form of the questions are reserved to on or before the hearing." Plaintiffs
claim because Defendant did not object during the deposition, the objections were waived. We
addressed a very similar issue recently in Perry v. Winn-Dixie Stores, Inc., No. E-2001-00523-COA-
R3-CV, 2002 Tenn. App. LEXIS 160 (Tenn. Ct. App. Feb. 28, 2002)(no Rule 11 app. for perm. to
appeal filed). Perry involved a virtually identical stipulation, and we concluded the Trial Court
properly concluded an objection made at trial regarding improper foundation was not to the “form
of the question.” We went on to add:



                                                 -10-
               To accept Plaintiff's argument would require us to completely ignore
               the express stipulation the parties made at the deposition. This we
               will not do. Stipulations are agreements between counsel regarding
               business before the court which are entered into mutually and
               voluntarily between the parties. Overstreet v. Shoney's, Inc., 4
               S.W.3d 694, 701 (Tenn. Ct. App. 1999). While parties may not
               stipulate to questions of law, they may stipulate "within the range of
               possibly true facts and valid legal strategies ...." Id. On appeal,
               stipulations are binding on the parties and may not be altered. Id. at
               702 (citing Bearman v. Camatsos, 215 Tenn. 231, 236, 385 S.W.2d
               91, 93 (1964); First Southern Trust Co. v. Sowell, 683 S.W.2d 680,
               681 (Tenn. Ct. App. 1984)). The stipulation entered into between the
               parties involved a valid legal strategy and is the type of stipulation
               allowed under the law. It is, therefore, binding upon the parties. We
               hold that the stipulation permitted Defendant to make an objection at
               trial regarding whether a proper foundation had been laid ….
               Plaintiff cannot use the Rules of Civil Procedure as a shield to ward
               off an objection which he expressly stipulated was reserved for trial.

Perry, 2002 Tenn. App. LEXIS 160 at * 17-18. We believe the same result is merited in the present
case. Defendant’s various objections to the testimony of Templeton were not merely objections to
the form of the question. We conclude Defendant did not waive his right to object to this testimony
as hearsay, or any other basis which did not involve simply an objection based on the form of the
question.

                Plaintiff’s main argument on appeal attacks the Trial Court’s determination of the
respective ownership interests of the parties. Plaintiffs claim the Trial Court erred when it concluded
Gibbs owned 490 shares of stock and further erred when it held Aubrey Allen Jenkins was not the
owner of 200 shares. The conclusions reached by the Trial Court on these issues by necessity
centered around credibility determinations. In resolving the factual issues presented for appeal, we
must keep in mind the Trial Court heard the conflicting testimony from the witnesses regarding their
claimed ownership interest in City Bonding. “Unlike this Court, the trial court observed the manner
and demeanor of the witnesses and was in the best position to evaluate their credibility.” Union
Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The
trial court’s determinations regarding credibility, as to those witnesses who testified live, are
accorded considerable deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560,
563 (Tenn. 2001). “‘[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.’” Wells v. Tennessee Bd. of Regents,
9 S.W.3d 779, 783 (Tenn. 1999).

               We cannot say the preponderance of the evidence weighs against the Trial Court’s
finding that Gibbs purchased 490 shares of stock from Joe Jenkins. Given the testimony of Gibbs
that he purchased 490 shares, the testimony of Joe Jenkins that he sold Gibbs 490 shares, as well as


                                                 -11-
the cancelled check evidencing same, we cannot conclude there was any reversible error with regard
to the Trial Court’s conclusion that Gibbs owned 490 shares of stock. Likewise, the preponderance
of the evidence does not weigh against the Trial Court’s conclusion that Pollock’s 255 shares remain
unissued treasury shares given Pollock’s testimony he turned his stock back in to the corporation and
the disputed evidence concerning what, if anything, happened to this stock thereafter.

                Plaintiffs further argue the Trial Court erred when it failed to establish a constructive
trust on behalf of Aubrey Allen Jenkins for the 200 shares of stock he supposedly held in 1982. We
believe the issue of whether Aubrey Allen Jenkins actually held any stock and whether a constructive
trust should be imposed also are factually driven. The Trial Court apparently believed Aubrey Allen
Jenkins at one point did own 200 shares, notwithstanding Aubrey Allen Jenkins’ own testimony that
he never knew he owned any stock. Having concluded he did own 200 shares at one time, the issue
then became whether a constructive trust should be imposed. Plaintiffs rely on the following
language found in Gibson’s Suits in Chancery, § 383 Cases of Constructive Trust (7th ed. 1988):

                § 383. Cases of Constructive Trusts. – Constructive trusts are so
                called because they are constructed by the Courts of Equity in order
                to satisfy the demands of justice, without reference to any presumable
                intention of the parties. They include cases: (1) where a person
                procures the legal title to property in violation of some duty, express
                or implied, to the true owner; or (2) where title to property is obtained
                by fraud, duress, or other inequitable means; or (3) where a person
                makes use of some relation of influence or confidence to obtain the
                legal title upon more advantageous terms than could otherwise have
                been obtained; or, (4) where a person acquires property with notice
                that another is entitled to its benefits. In all such cases, Equity, for
                the purpose of doing justice in the most efficient manner, constructs
                a trust out of the transaction, and makes a trustee of the person thus
                acquiring the title.…

                 While the facts certainly are in dispute about whether Aubrey Allen Jenkins ever
owned any stock in City Bonding, the Trial Court apparently concluded that he did and that his
father, Joe Jenkins, possessed the authority to sell this stock. The preponderance of the evidence
does not weigh against this conclusion. Joe Jenkins testified he sold his 490 shares of stock to Dan
Gibbs. Gibbs testified he purchased the 490 shares from Joe Jenkins. The cancelled check for this
purchase was admitted into evidence. Both Gibbs and Joe Jenkins testified they were not aware
Aubrey Allen Jenkins ever owned any stock. Aubrey Allen Jenkins himself testified he was not
aware he owned any stock until shortly before his deposition and many years after the fact. Guy
Jenkins is the only party who testified Aubrey Allen Jenkins ever owned any stock, and he testified
at least at one point this stock was “jointly” owned by Joe Jenkins and Aubrey Allen Jenkins. The
evidence in the record certainly supports the Trial Court’s conclusion there was a valid sale of stock
between Gibbs and Joe Jenkins as well as the Trial Court’s conclusion that Gibbs and Joe Jenkins
were unaware of any potential adverse claim to the stock that was sold. There was no testimony that


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Joe Jenkins or Gibbs knew about any potential ownership of stock by Aubrey Allen Jenkins. None
of the four situations for establishing a constructive trust apply in this case since there is no evidence
that Gibbs violated any duty, exercised fraud, took advantage of any relationship, or otherwise
engaged in any inappropriate conduct when purchasing this stock. Accordingly, we conclude the
Trial Court did not commit reversible error when it declined to establish a constructive trust on
behalf of Aubrey Allen Jenkins for the 200 shares of stock. In light of this holding, we pretermit the
issue of whether the Trial Court erred when it refused to establish a constructive trust because this
was not properly plead at trial.

               On appeal, Gibbs argues not only is he entitled to the 490 shares of stock he
purchased from Joe Jenkins, but he also claims entitlement to the additional 250 shares which Guy
Jenkins admits to “giving” him prior to the purchase of the 490 shares. Given the fact Guy Jenkins
actually possessed much less stock than he thought he did, it certainly is doubtful whether he
intended to make a gift to Gibbs of stock he might not have possessed to begin with. Nevertheless,
Gibbs admitted no stock certificate was ever issued to him documenting this gift and there was no
documentary evidence verifying he ever received this gift. The formal requirements of a gift are “the
intention by the donor to make a present gift coupled with the delivery of the subject of the gift by
which complete dominion and control of the property is surrendered by the donor.” Hansel v.
Hansel, 939 S.W.2d 110, 112 (Tenn. Ct. App. 1996). Regardless of what the parties may have
intended to do with these 250 shares, the facts certainly do not preponderate against the Trial Court’s
conclusion this supposed gift of 250 shares to Gibbs failed for lack of delivery.3 Accordingly, we
affirm the Trial Court’s conclusion on this issue as well.

               The only remaining issue is Plaintiffs’ claim the Trial Court improperly included
certain documents in the record on appeal. Since we have disposed of the issues on appeal without
relying on these documents, this issue is moot.

                                                  Conclusion

               We vacate the decision of the Trial Court granting summary judgment to Gibbs on
Guy Jenkins’ claim that Gibbs unlawfully procured a breach of contract. The rest of the judgment
of the Trial Court is affirmed in all other respects. This case is remanded to the Trial Court for
further proceedings as necessary consistent with this opinion. Costs of appeal are taxed one-half to
the Appellants Guy R. Jenkins and Aubrey Allen Jenkins, and their surety, and one-half to the
Appellee Dan Gibbs.



                                                              _____________________________________
                                                              D. MICHAEL SWINEY


        3
           W e believe the sa me could be said for the 200 shares of stock Guy Jenkins claims to have “given” Aubrey
Allen Jenkins.

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