Family Trust Services LLC v. Green Wise Homes LLC

07/10/2024

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 4, 2023 Session

FAMILY TRUST SERVICES LLC ET AL. v. GREEN WISE HOMES LLC ET

AL.

Appeal by Permission from the Court of Appeals

Chancery Court for Davidson County

No. 15-0780-BC Anne C. Martin, Chancellor

___________________________________

No. M2021-01350-SC-R11-CV

___________________________________

In this case, plaintiffs alleged defendants committed fraud in connection with their property

rights. After a jury trial, plaintiffs moved for a new trial asking the trial court to fulfill its

role as thirteenth juror. The trial court denied the motion, and the Court of Appeals

reversed upon finding the trial court misconceived its role as thirteenth juror. When a trial

court misconceives its role as thirteenth juror or applies an incorrect standard, remand for

a new trial historically has been the only remedy available under common law. In this

appeal, we consider whether our law should allow the alternative remedy of remand for the

trial court to fulfill its role as thirteenth juror under Tennessee Rule of Civil Procedure

59.06. We hold that remand for the trial court to fulfill its role as thirteenth juror is an

appropriate remedy when a civil trial court misconceives that role or applies an incorrect

standard. We further hold that the lower courts erred in finding that a claim for unjust

enrichment requires a voluntary conferral of a benefit. Finally, we hold that our law does

not recognize a claim for misappropriation or conversion of a right of redemption. We

affirm in part and reverse in part the decision of the Court of Appeals, and remand for

proceedings consistent with this opinion.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Affirmed in Part and Reversed in Part; Remanded to the Chancery Court

DWIGHT E. TARWATER, J., delivered the opinion of the court, in which HOLLY KIRBY, C.J.,

and JEFFREY S. BIVINS, ROGER A. PAGE, and SARAH K. CAMPBELL, JJ., joined.

Henry E. Hildebrand, IV, and Denis G. Waldron, Nashville, Tennessee, for the appellants,

Green Wise Homes LLC, Charles Edward Walker, and Jon Paul Johnson.

Eugene N. Bulso, Jr., and Paul J. Krog, Brentwood, Tennessee, for the appellees, Carl

Chambers, Debra Irvin, Glenna Davis Ponce, and Dorothy Booher.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendants Charles Walker and Jon Paul Johnson owned a business, REO Holdings,

LLC (“REO”), through which they bought properties at tax sales and resold them at a profit.

They also obtained rights of redemption to properties previously sold at tax sales and used

these rights of redemption to redeem and obtain title to the properties. However, many of

these rights of redemption were later alleged to be fraudulent. Another was found by the

jury in this case to have been obtained through misrepresentation. Of the many properties

that passed through Defendants’ hands, four are at issue in this appeal. While they bear

similarities with each other, the facts of each are unique.

Chambers Property

Plaintiff Carl Chambers was the grandson of Maggie Chambers, who owned a house

at 2131 11th Avenue in Nashville. She willed the property to her children, including Carl

Chambers’ father.1 After her death, taxes went unpaid on the property, and the property

was subsequently sold at tax sale in November 2013.

After the property was sold at tax sale, REO sought to redeem the property within

the one-year statutory redemption period using the redemption rights of the property’s

alleged heirs. See Tenn. Code Ann. § 67-5-2701(a) (2012) (amended 2014). Walker filed

a notice of redemption in Davidson County Chancery Court on August 22, 2014, as

“Attorney for Estate of Maggie Chambers” and paid $2,194.99 to redeem the property.

After the court entered a decree for redemption, Walker executed a quitclaim deed signed

by an alleged heir, Dorothy Turner Huffine, conveying her interest in the Chambers

property to REO. However, Ms. Huffine had no actual interest in the Chambers property.

She was heir to a different property on 518 South 14th Street in Nashville that her mother,

Maggie Merritt Turner Chambers, had willed to her as trustee for Ms. Huffine’s daughter,

Alice Williams.2 Walker alleged that when he presented Ms. Huffine’s quitclaim deed to

the title company, it informed him that he also needed a quitclaim deed from the beneficiary

1

Carl Chambers’ father had passed away before the property was sold at tax sale, and Mr. Chambers

was heir to his father’s interest in the property.

2

In fact, the quitclaim deed that Ms. Huffine signed contains a derivation clause citing Maggie

Merritt Turner Chambers’ will found on a specific page of the Probate Court Clerk Office’s records in

Davidson County. However, the cited will clearly designates 518 South 14th Street as the property being

conveyed to Ms. Huffine and her daughter, not 2131 11 th Avenue.

The Maggie Chambers who was the owner of 2131 11th Avenue also had a will on file with the

Probate Court Clerk’s Office in Davidson County. Her will clearly designated 2131 11th Avenue as the

property she conveyed to her heirs, which did not include Ms. Huffine or Ms. Williams.

-2-

of the trust, Alice Williams. Walker then produced a quitclaim deed purportedly signed by

Ms. Williams and filed it with the Davidson County Register of Deeds. The Alice Williams

quitclaim deed bore the signature and seal of a Texas notary public named Jennifer Clark.

Ms. Clark testified that she never notarized the quitclaim deed and that her signature and

notary stamp were forged. Walker produced an original of the Dorothy Huffine quitclaim

deed, which Ms. Huffine indeed signed, but not of the Alice Williams quitclaim deed. 3

Walker subsequently filed suit to quiet title to the property. In the suit, he named as

defendants the actual heirs of the Chambers property at 2131 11th Avenue, including Mr.

Chambers’ father and his father’s siblings, and “Unnamed or Unknown Heirs of Maggie

Chambers.” Mr. Chambers did not receive notice of the quiet title action and was unaware

that his grandmother’s property had been sold at tax sale and redeemed by Walker. Neither

he nor any of the actual heirs of Maggie Chambers gave Walker permission to redeem the

property.

Defendants later sold the property at a profit for $28,000.

Irvin Property

Plaintiff Debra Irvin inherited a house at 1125 Sunnymeade Drive in Nashville from

her mother. In 2011, Ms. Irvin filed for bankruptcy. She owed over $256,000 on two

mortgages on the house—greater than its value4—and planned to surrender it to her

creditors as part of the bankruptcy settlement. Because she planned to surrender her house

to creditors, she stopped paying property taxes. The house was later sold at a Metropolitan

Government of Nashville and Davidson County tax sale on September 18, 2013, for

$71,000.

After the property was sold at tax sale, Walker sent an employee of his title

company, Julie Coone, to Ms. Irvin’s residence three times to try to persuade her to sell her

redemption rights to REO. On the third visit, Ms. Coone told Ms. Irvin that “something is

better than nothing”—implying that Ms. Irvin would receive nothing for the property if she

did not agree to sell her redemption right. Ms. Irvin alleged that she did not understand the

contract that she signed that day, and that she told Ms. Coone that she did not understand

it. Moreover, Ms. Coone did not inform her that she could potentially receive nearly

3

Moreover, Defendants were never able to able to produce originals of any of the documents that

notaries testified to as being forged. Defendants recorded them via an online recording system in the

respective counties’ register of deeds offices.

4

In her bankruptcy petition, Ms. Irvin listed the value of the house at $139,000, and the amount

owed on the two mortgages at $256,270.79.

-3-

$70,000 in excess proceeds from the tax sale if she did not sign the documents. 5 Ms. Irvin

sold her right of redemption to REO for $5,000, and both she and her husband signed a

contract and quitclaim deed conveying the same.

Walker recorded the quitclaim deed two days later on August 11, 2014, and

subsequently filed a notice of redemption in Davidson County Chancery Court after paying

$12,474.83 in delinquent taxes, fees, and interest.

Ms. Irvin was later informed that because she had sold her right of redemption to

REO, she forfeited her right to receive excess proceeds from the tax sale. She called

Walker irate, “cussed him out and hung up.”

After Walker’s conversation with Ms. Irvin, he filed another quitclaim deed for the

property in Davidson County Chancery Court on November 5, 2014. However, the

signature page bearing Ms. Irvin’s and her husband’s signatures on this second quitclaim

deed was the same signature page that had been attached to the first quitclaim deed filed

on August 11. That is, Walker took the signature page from the first quitclaim deed and

attached it to the second. Ms. Irvin did not give Walker permission to attach her signature

to the second quitclaim deed.

Defendants rehabilitated the property, and later sold it at a profit for $315,000.

Davis Property

Plaintiff Glenna Davis Ponce was the granddaughter of William and Glenna Davis,

who owned a house at 16 North Parkdale in Chattanooga. Both Ms. Ponce’s grandfather

and her father, the Davises’ only child, passed away. Her grandmother then passed away

intestate. Taxes went unpaid on the property, and it was sold at tax sale in Hamilton County

on June 5, 2014.

Walker attempted to redeem the property by purporting to represent the interests of

an alleged heir. On June 2, 2015, Walker filed a “Statement of Person Redeeming Property

Sold at Tax Sale” in Hamilton County Chancery Court. The same day he filed a notarized

affidavit of heirship purportedly signed by one James Hixson, alleged to be Glenna Davis’

5

Ms. Irvin owed more on the house than the tax sale had brought in, and the mortgagee banks had

the right to recoup all excess proceeds of the tax sale. See Tenn. Code Ann. § 67-5-2707 (2012) (repealed

2014 and replaced by Tenn. Code Ann. § 67-5-2702). The banks would have had to file a claim for the

excess proceeds under Tennessee Code Annotated section 67-5-2707. Likewise, Ms. Irvin would have had

to file a claim under section 67-5-2707 and serve both mortgagee banks in order to recover excess proceeds.

Ms. Irvin would only have recovered the proceeds if the banks had failed to assert their superior claim to

the proceeds after receiving notice of Ms. Irvin’s claim. Tenn. Code Ann. § 67-5-2707(c) (2012) (repealed

2014).

-4-

brother and the sole heir of 16 North Parkdale; Walker also filed a notarized quitclaim deed

conveying Hixson’s interest in the property to REO. Both the affidavit of heirship and

quitclaim deed were allegedly notarized by Jesse Berber, a California notary. However,

Berber testified that he neither signed nor notarized the documents; his signatures and

notary stamps on both documents were forged.

Walker paid the chancery court clerk $7,467.88 to redeem the property; however,

after Plaintiffs filed suit in this case, Walker withdrew the attempted redemption.

Ms. Ponce was unaware that her grandparents’ property had been sold at tax sale

and that Walker had attempted to redeem it. At the time of trial, Ms. Ponce was living in

Texas and was suffering from dementia. She did not give Walker permission to redeem

the property.

Booher Property

Plaintiff Dorothy Booher’s husband, Alan Booher,6 was the son of Betty Burns. Ms.

Burns and her husband owned property at 544 Las Lomas Drive in Chattanooga. After

Ms. Burns’ death, Mr. Booher became an heir of the property along with his siblings. Taxes

went unpaid on the property; it was sold at a Hamilton County tax sale on June 5, 2014,

and confirmed by final decree on June 16, 2014.

Once again, Walker attempted to redeem the property by purporting to represent the

interests of a nonexistent heir. On June 12, 2015, Walker filed an affidavit of heirship in

the Hamilton County Register of Deeds bearing the signature of one Allen Booker. On the

same day, Walker filed a quitclaim deed conveying Mr. Booker’s interest in the property

to REO. Walker also filed a “Statement of Person Redeeming Property Sold at Tax Sale”

in Hamilton County Chancery Court as Mr. Booker’s assignee. However, both the affidavit

of heirship and quitclaim deed were alleged forgeries, as Mr. Booker’s signature on both

was allegedly copied from a 1992 New Jersey deed. Needless to say, Allen Booker was

never an heir of Ms. Burns’ estate—Ms. Burns’ son’s name was Allen Booher, not Booker.

The New Jersey notary who purportedly notarized both documents, Mary J. Sims, testified

that she never notarized the affidavit of heirship or quitclaim deed, and that her signatures

and notary stamps were forged.

Walker paid the chancery court clerk $11,923.80 to redeem the property. After

Plaintiffs filed suit in this case, Walker withdrew the attempted redemption of the property.

6

Alan Booher passed away before Dorothy Booher was added to the suit; Ms. Booher filed claims

as the surviving spouse.

-5-

Ms. Booher had been unaware that the property was sold at tax sale, and that Walker

had attempted to redeem the property through documents bearing the forged signatures of

“Allen Booker.” Neither she nor her husband gave Walker permission to redeem the

property.

None of these four Plaintiffs were the original Plaintiffs to this case, as Defendants’

alleged fraudulent activity was not confined to these four properties. Between 2014 and

2015, Walker and Johnson filed numerous redemptions of similar quality for other

properties sold at tax sale. These other redemptions likewise utilized documents bearing

the forged signatures of alleged heirs or lienholders. Even so, Defendants successfully

redeemed some of the properties, and sold them at a profit.

Once Defendants’ scheme began to be unraveled, the actual heirs of these properties

and those who had legally purchased the properties at tax sale brought suit. Heirs and tax

sale purchasers initially filed a putative class action in Davidson County on June 30, 2015,

seeking injunctive and declaratory relief and compensatory and punitive damages against

Walker, Johnson, REO, and others that were alleged to have been involved in the fraudulent

scheme. The suit went through several iterations of class action complaints and took a long

detour through federal bankruptcy court, in which the claims of all original Plaintiffs 7

settled against Walker, Johnson, and REO. Plaintiffs’ claims against the remaining

defendants were remanded to state court.

Upon remand to state court, Carl Chambers sought to be added as a Plaintiff on

August 31, 2018, and sought to once again add Walker and Johnson as Defendants. A few

days later, on September 5, 2018, Walker and Johnson formed Green Wise Homes, LLC

(“Green Wise”) in Delaware. They collectively conveyed sixteen parcels of real property

by quitclaim deed to Green Wise. Walker again removed the lawsuit to federal bankruptcy

court on September 13, 2018, and it was again remanded to state court on April 1, 2019.

Plaintiffs filed a lien lis pendens on Green Wise’s assets and sought to add Green Wise as

a Defendant. Less than an hour after the chancellor reopened the remanded suit in

Davidson County, Walker removed the suit to federal bankruptcy court for the third time.

Following the third remand to state court, Plaintiffs filed their Fourth Amended

Class Action Complaint. Carl Chambers stood as putative class representative on claims

of defamation of title, fraud, unjust enrichment, theft of the right of redemption, and

fraudulent transfer of assets, among other claims, against Walker, Johnson, Green Wise,

and other Defendants. Debra Irvin subsequently moved to intervene as Plaintiff, alleging

7

One of these original Plaintiffs was Family Trust Services, LLC, who represented the interests of

an heir and tax sale purchaser of two other properties; Defendants redeemed one of these properties and

attempted to redeem the other. Family Trust Services settled with Walker, Johnson, and REO in federal

bankruptcy court. Upon remand to state court, Family Trust Services continued its claims against the

remaining Defendants. Hence, the style of this case.

-6-

claims of fraud, unjust enrichment, civil conspiracy, and fraudulent transfer of assets,

among others, against Walker, Johnson, Green Wise, and other Defendants.

Following a hearing on Defendants’ motion for judgment on the pleadings, the

chancellor dismissed Plaintiffs’ claims for unjust enrichment, finding that B & L Corp. v.

Thomas and Thorngren, Inc. requires that a claim of unjust enrichment involve a “willing

conferring of a benefit by one party to the other and is contraindicated when the benefit

alleged is involuntarily conferred.” 162 S.W.3d 189, 217 (Tenn. Ct. App. 2004) (emphasis

added). The chancellor found that as the Plaintiffs did not know of Defendants’ actions,

they could not sustain a claim for unjust enrichment. Moreover, because Irvin received the

compensation she agreed to, she could not assert a claim for unjust enrichment. The

chancellor also dismissed the claim for theft of the right of redemption, finding that only

claims for conversion of tangible property, and not intangible property, are actionable

under Tennessee law. In addition, the chancellor denied class certification.

After the court entered its order on the motion for judgment on the pleadings, Glenna

Davis Ponce and Dorothy Booher were subsequently joined as Plaintiffs, and Plaintiffs

filed an Amended and Consolidated Complaint. In the amended complaint, Ms. Ponce and

Ms. Booher also alleged claims of defamation of title, fraud, civil conspiracy, and

fraudulent transfer of assets, among other claims, against Walker, Johnson, Green Wise,

and other Defendants. On August 2, 2021, the trial court granted the Defendants’ motion

to bifurcate the trial as to claims by Carl Chambers, Debra Irvin, Glenna Davis Ponce, and

Dorothy Booher against Walker, Johnson, and Green Wise.

The parties proceeded to jury trial on September 13, 2021. The trial was video

recorded in its entirety pursuant to Tennessee Supreme Court Rule 26 and the local rules

of Davidson County Circuit Court. After a six-day trial, the jury found in favor of

Defendants on all claims except for Ms. Irvin’s claim of fraudulent misrepresentation

against Walker. The jury also found that Defendants had made a fraudulent transfer with

respect to all four Plaintiffs. The jury awarded Ms. Irvin $53,450 in compensatory

damages.

Plaintiffs filed a motion for a new trial, alleging that the evidence presented at trial

preponderated against the jury’s verdict and requesting the court to set aside the verdict in

its role as thirteenth juror. During the hearing on the motion for a new trial, the trial court

made comments indicating that it misconceived its duty as thirteenth juror by improperly

deferring to the jury’s verdict:

COURT: [W]hen I’m trying to put myself in the jury’s place, I’m wondering

if where they got hung up was what kind of loss, if any, that your clients

experienced because, A, they had such a small interest in the property; B,

-7-

they never acted upon it, never knew it existed, so forth and so on, and that

really when it came down to it, were they damaged in any way.

I don’t know. But, you know, at summary judgment, you know, my

determination was there was definitely an interest, albeit maybe one that is

perceived as intangible, but that it could go forward. But, you know, I didn’t

know what a jury was going to do. And I didn’t—I thought that you were

entitled to go to a jury to ask a jury what to do. And I just wonder if that’s

the problem—or that was the problem. I don’t know. That they just get it or

didn’t see where there was a loss that was ascertainable.

....

. . . And I wonder if their hang-up was if these folks really suffered any loss.

I don’t know.

Plaintiffs’ counsel pressed the court to make the determination for itself as the thirteenth

juror. Plaintiffs argued that Defendants Walker and Johnson had committed perjury at trial

when they testified that two other individuals, Kevin Watts and Jose Lorenzo, had produced

the forged documents used to obtain the rights of redemption. (Defendants had testified at

trial that Watts and Lorenzo procured the alleged forged deeds on a contractual basis for

REO, and that the originals of the deeds were given back to those individuals. At the time

suit was filed—only a few months after Watts and Lorenzo allegedly procured the deeds—

Watts was deceased, and Lorenzo’s whereabouts were unknown.) Plaintiffs argued that as

a result of Defendants’ perjury, the court should not be satisfied with the verdict. After

hearing these arguments, the court stated:

COURT: Well the first that I ever heard of Mr. Watts and Mr. Lorenzo was

at trial. . . . But, you know, I don't know that a jury would have but one

conclusion that they didn't exist.

....

And, you know, I don't know what the conclusion would be about those two.

It certainly seems suspect, but I don't know that I could say any reasonable

juror would have to assume those two gentlemen don't exist. I don't know. .

..

....

-8-

And in this case when Mr. Walker answered the way he did, that’s why I had

the side bar because I was not confident he was answering—he was

answering truthfully.

But, so your position is the fact that he did that—and your argument is more

than one occasion—that that in and of itself—or that cumulatively, I guess,

should invalidate the jury verdict?

Defendants counterargued that the perjury issue was not dispositive, as the only dispositive

issue was whether the Defendants’ actions were the actual cause of Plaintiffs’ losses. The

court said it would look more closely at the issue and issue a written order.

The trial court subsequently issued its written order denying the motion for a new

trial, stating, “The Court does not find that Plaintiffs have presented a sufficient basis for

it to vacate the jury verdict. No error has been identified and, the Court finds, a reasonable

juror could have and did reach a result of no liability on the claims at issue.”

Plaintiffs appealed, arguing that the trial court misconceived its role as thirteenth

juror, requiring a new trial, and that the trial court erred by dismissing Plaintiffs’ claims

for unjust enrichment and “intentional interference with” a right of redemption on

Defendants’ motion for judgment on the pleadings. The Court of Appeals found that the

trial court had in fact misconceived its role as thirteenth juror and remanded for a new trial.

Family Trust Services LLC v. Green Wise Homes LLC, No. M2021-01350-COA-R3-CV,

2022 WL 17086782, at *13 (Tenn. Ct. App. Nov. 21, 2022). The Court of Appeals upheld

the trial court’s dismissal of the unjust enrichment claim, finding that B & L Corp.

precluded the claim as the benefit was not voluntarily conferred. Id. at *14–15. The court

also upheld dismissal of the claim for intentional interference with a right of redemption.

Id. at *15–17.

Following the Court of Appeals’ decision, Defendants filed a petition for rehearing

and argued for the first time that instead of an automatic remand for a new trial, an

alternative remedy ought to be available: remand to the trial court to apply the correct

thirteenth juror standard. This remedy was modeled on the dissenting opinion in State v.

Moats, in which Justice Drowota proposed the remedy of remand for the trial court to apply

the correct standard rather than automatic remand for a new trial. 906 S.W.2d 431, 436

(Tenn. 1995) (Drowota, J., dissenting). Nevertheless, the Court of Appeals denied the

Defendants’ petition for rehearing. Defendants then applied for permission to appeal in

this Court, which we granted.

-9-

II. STANDARD OF REVIEW

We review de novo a motion for judgment on the pleadings. Lawson v. Hawkins

Co., 661 S.W.3d 54, 58 (Tenn. 2023) (citing Mortg. Elec. Registration Sys., Inc. v. Ditto,

488 S.W.3d 265, 275 (Tenn. 2015)). A party may move for judgment on the pleadings

“[a]fter the pleadings are closed but within such time as not to delay the trial.” Tenn. R.

Civ. P. 12.03. In reviewing a trial court’s ruling on a motion for judgment on the pleadings,

we must accept as true “all well-pleaded facts and all reasonable inferences drawn

therefrom” alleged by the party opposing the motion. McClenahan v. Cooley, 806 S.W.2d

767, 769 (Tenn. 1991) (citing Trigg v. Middle Tenn. Elec. Membership Corp., 533 S.W.2d

730, 732–33 (Tenn. Ct. App. 1975)). Moreover, “[c]onclusions of law are not admitted

nor should judgment on the pleadings be granted unless the moving party is clearly entitled

to judgment.” Id. The ultimate question becomes whether “the Plaintiff’s complaint states

a cause of action that a jury should have been entitled to decide.” Id.

The question of the proper remedy to apply when the trial court misconceives its

role as thirteenth juror or applies an incorrect standard is a question of law that we review

de novo. Waiver is also a question of law that we would review de novo. Jackson v.

Burrell, 602 S.W.3d 340, 344 (Tenn. 2020) (citing Bryant v. Bryant, 522 S.W.3d 392, 399

(Tenn. 2017)).

III. ANALYSIS

Plaintiffs’ Waiver Argument

Plaintiffs contend that Defendants waived their argument that an alternative remand

remedy should be available when a civil trial court misconceives its role as thirteenth juror

because Defendants raised it for the first time in a petition for rehearing in the Court of

Appeals. Defendants indeed first raised the issue in a petition for rehearing immediately

after receiving an adverse ruling in the Court of Appeals. Up to that point, Defendants had

not argued that an alternative remand remedy should be available; they simply argued that

the case should not be remanded at all. We need not and do not decide whether Defendants

waived review of the alternative remedy issue. Rather, we exercise our discretion to hear

the issue pursuant to Tennessee Rule of Appellate Procedure 13(b). 8

8

Under Tennessee Rule of Appellate Procedure 13(b), this Court has discretion to consider issues

not properly presented for review “in order, among other reasons: (1) to prevent needless litigation, (2) to

prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.” Tenn. R.

App. P. 13(b); see also State v. Harbison, 539 S.W.3d 149, 165 (Tenn. 2018); In re Kaliyah S., 455 S.W.3d

533, 540 (Tenn. 2015).

- 10 -

Thirteenth Juror Remand Remedy

Next, we must determine whether automatic remand for a new trial is the only

available remedy when a civil trial court misconceives its role as thirteenth juror or applies

an incorrect standard, or whether our law should allow the new, alternative remedy of

remand for the trial court to fulfill its role under Tennessee Rule of Civil Procedure 59.06.

In Tennessee, a judge presiding over a jury trial has a duty not only to sit as judge,

but must also sit as a thirteenth juror who independently reviews and weighs the evidence

at trial. Holden v. Rannick, 682 S.W.2d 903, 904–05 (Tenn. 1984). If the trial court is

dissatisfied with the jury’s verdict or disagrees with the jury as to the weight of the

evidence, it must order a new trial. Tenn. R. Civ. P. 59.06; Meals ex rel. Meals v. Ford

Motor Co., 417 S.W.3d 444, 420 (Tenn. 2013) (citing Jones v. Idles, 114 S.W.3d 911, 914–

15 (Tenn. 2003)). The trial judge cannot simply defer to the jury’s decision but must make

an independent judgment. Holden, 682 S.W.2d at 906; Bradley v. Bishop, 538 S.W.3d 518,

536 (Tenn. Ct. App. 2017) (citing Dickey v. McCord, 63 S.W.3d 714, 718–19 (Tenn. Ct.

App. 2001)). No verdict is valid unless it is approved by the trial judge acting as a thirteenth

juror. Meals, 417 S.W.3d at 420; see also Davidson v. Lindsey, 104 S.W.3d 483, 488

(Tenn. 2003).

If the trial court simply upholds the verdict without a word, the appellate court

presumes it fulfilled its role and the verdict stands on appeal. Holden, 682 S.W.2d at 905

(citing Cent. Truckaway Sys. v. Waltner, 253 S.W.2d 985, 991 (Tenn. Ct. App. 1952)).

However, trouble ensues where the trial court upholds the verdict yet expresses some level

of dissatisfaction with the verdict or with the weight of the evidence or makes statements

indicating that it misconceives its duty as thirteenth juror. Id.; see also Sherlin v. Roberson,

551 S.W.2d 700, 701 (Tenn. Ct. App. 1976) (remanding for new trial after trial court

approved verdict with “countervailing and irreconcilable remarks”). We have held that in

such situations, remand for a new trial is the necessary and only remedy. Holden, 682

S.W.2d at 905; cf. Moats, 906 S.W.2d at 435 (remand necessary in criminal trials under

Tennessee Rule of Criminal Procedure 33).

In this case, there is no question that the trial court misconceived its duty as

thirteenth juror. Instead of independently weighing and passing on the evidence, it

improperly deferred to the jury’s verdict. Now we must decide whether the trial court’s

misconception of its thirteenth-juror role mandates a new trial, as we have previously held,

or whether our law should permit an alternative remand remedy.

To answer that question, we look to the rule’s common law origins. See Moats, 906

S.W.2d at 433 (citing Curran v. State, 4 S.W.2d 957, 958 (Tenn. 1928)). In our earliest

cases, appellate courts remanded for a new trial only when the trial court clearly disagreed

with the jury’s verdict, yet denied a new trial. See, e.g., Tate v. Gray’s Lessee, 36 Tenn. (4

- 11 -

Sneed) 591, 595 (1857). The appellate courts there reasoned that they were only doing

what the trial court should have done, had it fulfilled its duty—grant a new trial. Id.; see

also Cumberland Tel. & Tel. Co. v. Smithwick, 79 S.W. 803, 804 (Tenn. 1904). In those

early days, when a trial court made waffling remarks regarding sufficiency of the evidence

yet did not clearly disagree with the jury’s verdict, the verdict stood upon appeal. See

England v. Burt, 23 Tenn. (4 Hum.) 399, 401 (1843).

Appellate courts later found that they had no jurisdiction to review the sufficiency

of the evidence unless the trial court first had either explicitly approved or disapproved the

verdict:

It was [the trial judge’s] duty either to approve or disapprove the verdict, and

then, in due course of proceeding, let the aggrieved party bring the case into

this court, if desired. It was his province, and his alone, to decide, in the first

instance, whether or not judgment should be pronounced upon the verdict

rendered by the jury. This court cannot decide the question originally. It has

no original jurisdiction. It cannot “pass upon the evidence in the case” before

the verdict of the jury has received the approval or disapproval of the trial

judge.

E. Tenn., Va. & Ga. Ry. Co. v. Lee, 32 S.W. 249, 250 (Tenn. 1895); see also Ill. Cent. R.R.

Co. v. Brown, 35 S.W. 560, 561 (Tenn. 1896). For a trial court to withhold approval or

disapproval of the jury’s verdict was to “pretermit action which must be taken before

appellate jurisdiction can be conferred or acquired.” E. Tenn., Va. & Ga. Ry. Co., 32 S.W.

at 250; see also Cumberland Tel., 79 S.W. at 805 (“It has been held that this court has no

power to act until the circuit judge has acted.”). We explained why this role fell squarely

within the province of the trial judge:

[T]he circuit judge hears the testimony, just as the jury does, sees the

witnesses, and observes their demeanor upon the witness stand; that, by his

training and experience in the weighing of testimony, and the application of

legal rules thereto, he is especially qualified for the correction of any errors

into which the jury by inexperience may have fallen, whereby they have

failed, in their verdict, to reach the justice and right of the case, under the

testimony and the charge of the court; that, in our system, this is one of the

functions the circuit judge possesses and should exercise—as it were, that of

a thirteenth juror. So it is said that he must be satisfied, as well as the jury;

that it is his duty to weigh the evidence, and, if he is dissatisfied with the

verdict of the jury, he should set it aside. . . . It would be . . . a hazardous

thing for this court to attempt to review at large the testimony of witnesses

whose evidence was given orally in the court below, and to reverse the action

- 12 -

of a judge and jury thereon, who had seen the witnesses, and had had the

opportunity of observing their demeanor and manner of testifying. 9

Cumberland Tel., 79 S.W. at 804. Because appellate courts found they could not fulfill

this role, such cases were reversed and remanded for a new trial. See, e.g., E. Tenn., Va.

& Ga. Ry. Co., 32 S.W. at 250. Likewise, when a trial court failed to independently pass

upon the verdict because it improperly deferred to the jury’s verdict, appellate courts

reversed and remanded for a new trial. See, e.g., Nashville, Chattanooga, & St. Louis R.R.

Co. v. Neely, 52 S.W. 167, 168 (Tenn. 1899) (reversing and remanding when trial court

stated that although facts were mixed, “it was a rule of his to rarely invade the province of

the jury in setting aside their verdicts . . . .”).

The automatic remand for new trial remedy was not called into question until State

v. Moats.10 906 S.W.2d at 434. Although Moats was a criminal case interpreting the

Tennessee Rules of Criminal Procedure, its analysis of the thirteenth juror rule is a helpful

framework for our analysis here because it is the only case—civil or criminal—in which

an alternative remedy has been suggested. The application of the thirteenth juror rule has

varied slightly between criminal and civil courts in this state, yet some basic principles of

the thirteenth juror rule pervade both the civil and criminal spheres. As a result, civil courts

have cited Moats and other criminal cases for guidance on the thirteenth juror rule. See,

e.g., Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 310 (Tenn. 2017); Overstreet

v. Shoney’s, Inc., 4 S.W.3d 694, 718 (Tenn. Ct. App. 1999). Even so, we recognize that

Moats’ holding does not control this case, because we are interpreting here the application

of the thirteenth juror rule under the Tennessee Rules of Civil Procedure.

In Moats, we addressed “whether under Tenn. R. Crim. P. 33(f), 11 a new trial is the

required remedy when the record contains statements by the trial court expressing

dissatisfaction or disagreement with the weight of the evidence or the jury's verdict, or

statements indicating that the trial court misunderstood its responsibility or authority to

act” as thirteenth juror. Moats, 906 S.W.2d at 434. In that case, the trial court expressed

doubts about the weight of the evidence, but ultimately deferred to the jury’s verdict

without independently approving or disapproving the verdict. Id. at 433. While both

parties agreed that the trial court had failed to fulfill its role as thirteenth juror, the State

9

Although the rule requiring a trial court to approve or disapprove the jury’s verdict was well-

settled at common law, Cumberland Telephone was the first Tennessee case that employed the term

“thirteenth juror.” 79 S.W. at 804.

10

The Moats Court noted that no case had previously questioned the propriety of the remand for

new trial remedy when a trial court fails to fulfill its duty as thirteenth juror. 906 S.W.2d at 434.

11

Tennessee Rule of Criminal Procedure 33(f) has since been moved to Tennessee Rule of Criminal

Procedure 33(d).

- 13 -

advocated for a remand remedy that would allow the trial court to fulfill its role as thirteenth

juror in lieu of a new trial. Id. at 434. However, the Moats Court reasoned that the passage

of time would make such a remedy impracticable:

The trial judge is in a difficult position to make a thirteenth juror

determination after a remand which would not occur until after the case

works its way through the appellate courts. By that time, the trial judge is

unlikely to have an independent recollection of the demeanor and credibility

of all the witnesses. The “human atmosphere” of the trial forum would be

lost, and the trial court would be in no better position to evaluate the weight

of the evidence than an appellate court.

Id. at 435. The Court found that “the totality of the evidence cannot be reproduced with a

written record,” because a written record lacks the means to assess witness credibility. Id.

(quoting Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966)). Due to this lack of means to

assess witness credibility, appellate courts decline to review a trial court’s thirteenth juror

determination. Id. “For the same reasons, a trial court is ill-suited to make its thirteenth

juror determination by reviewing a record on remand, long after the conclusion of the trial.”

Id. Accordingly, the Moats Court held that a new trial was the only remedy under the

Tennessee Rules of Criminal Procedure when the trial judge expressed “dissatisfaction or

disagreement with the weight of the evidence or the jury’s verdict, or statements indicating

that the trial court misunderstood its responsibility or authority to act as the thirteenth

juror.” Id. at 435–36.

Justice Drowota disagreed that the passage of time would disenable a trial judge in

all cases from serving as thirteenth juror upon remand. Id. at 436 (Drowota, J., dissenting).

From his experience as a trial judge, some trials and witnesses are “indelibly etched in a

trial court’s mind,” so that a judge would still be able to recall the facts of the case and

fulfill its role as thirteenth juror even months after a case weaves its way through the

appellate courts and back down on remand. Id. However, other cases are less memorable,

and in such a trial court would not be able to fulfill its role as thirteenth juror on remand.

Id. Justice Drowota suggested that no harm would be done in remanding the case to the

trial court to determine whether it has “sufficient independent recollection” to fulfill its role

as thirteenth juror. Id. When a trial court does not have sufficient independent recollection,

it can simply order a new trial. Id. He proposed that “the important interests of judicial

economy and expediency . . . would be greatly furthered by the remand remedy.” 12 Id.

12

Justice Drowota was in fact an advocate of the thirteenth juror rule. In State v. Johnson, a

majority of this Court chose not to reinstate the thirteenth juror rule after it had been abolished due to

concerns over its constitutionality. 692 S.W.2d 412, 413–14 (Tenn. 1985), superseded by rule, Tenn. R.

Crim. P. 33. Justice Drowota and one other justice dissented and argued for reinstatement of the thirteenth

juror rule, finding the rule “may be the only safeguard available against a miscarriage of justice by the jury.”

Id. at 415 (Drowota, J., dissenting).

- 14 -

Although the automatic remand for new trial remedy precludes the original trial

judge from fulfilling his or her role as thirteenth juror upon remand, our law allows

successor judges to serve as thirteenth juror when the original trial judge becomes

incapacitated during trial or post-trial proceedings. Tennessee Rule of Civil Procedure 63

provides the rule for such situations:

If a trial or hearing has been commenced and the judge is unable to proceed,

any other judge may proceed upon certifying familiarity with the record and

determining that the proceedings in the case may be completed without

prejudice to the parties. In a trial or hearing without a jury, the successor

judge shall at the request of a party recall any witness whose testimony is

material and disputed and who is available to testify again without undue

burden. In any trial or hearing, with or without a jury, the successor judge

may recall any witness.

Tenn. R. Civ. P. 63. However, the ability of a successor judge to serve as thirteenth juror

is not absolute. In Overton v. Lowe, our Court of Appeals noted that “a judge who does

not see and hear the witnesses is at a significant disadvantage as thirteenth juror,” especially

in a case in which credibility of witnesses is important. No. E2007-00843-COA-R3-CV,

2009 WL 1871946, at *7 (Tenn. Ct. App. June 30, 2009). The Overton panel found that in

cases in which witness credibility is important, a successor judge ought to order a new trial

unless he or she had strong means of independently weighing the evidence. Id.

That said, successor judges are not always up a creek without a paddle. While our

civil courts have not had an opportunity to develop extensive jurisprudence regarding a

successor judge’s ability to function as thirteenth juror under Rule 63, several criminal

cases provide guidance under the analogous Tennessee Rule of Criminal Procedure 25.

See Tenn. R. Crim. P. 25. In State v. Ellis, this Court found that under Rule 25, the most

important factor to a successor judges’ ability to function as thirteenth juror is “the extent

to which the credibility of one or more material witnesses is actually a significant aspect to

the case,” and if it is, whether that credibility can be ascertained through reviewing the

record. 453 S.W.3d 889, 902–03 (Tenn. 2015). Most indicators of witness credibility can

be ascertained through reading the trial transcript. Id. at 904. These include a witness’

reputation for truth and veracity; intelligence; respectability; interest in the outcome of the

trial; feelings about the case, parties, or other witnesses; bias or lack thereof; means of

knowledge; reasonableness of statements; and general character. Id. Conflicting or

corroborating testimony or proof is also a strong indicator of witness credibility. Id. Only

one indicator, witness demeanor, cannot be ascertained through reading the transcript:

“Only if the record justifies the successor judge in concluding that witness demeanor was

a crucial aspect of the case should the successor judge determine that he cannot

independently weigh the evidence.” Id. at 906 (emphasis in original) (citing State v.

- 15 -

Bilbrey, 858 S.W.2d 911, 915 (Tenn. Crim. App. 1993) (Tipton, J., concurring)). “Weight

and credibility, therefore, are inextricably linked.” Id. at 900.

Similarly, in State v. Bilbrey, Judge Tipton stated that the credibility inquiry is fact-

driven and depends on the evidence submitted in each case. 858 S.W.2d at 915 (Tipton,

J., concurring). “[C]redibility involves more than demeanor in that it ‘apprehends the over-

all evaluation of testimony in the light of its rationality or internal consistency and the

manner in which it hangs together with other evidence.’” Id. (quoting Carbo v. United

States, 314 F.2d 718, 749 (9th Cir. 1963)). In some cases, strong corroborating evidence

makes viewing witness demeanor unnecessary. Id.

These principles underlying a successor judge’s ability to function as thirteenth juror

by weighing the evidence and determining witness credibility—at times through a trial

transcript—apply equally to the civil context. Under Tennessee Rule of Civil Procedure

63, a civil trial court must certify familiarity with the record to fulfill the role of thirteenth

juror, just as a criminal trial court must under Tennessee Rule of Criminal Procedure 25.

See Tenn. R. Civ. P. 63; Tenn. R. Crim. P. 25(a)(2). In civil trials, successor judges have

the additional advantage of being able to recall witnesses to testify. See Tenn. R. Civ. P.

63. Although the burden of proof varies between civil and criminal trial courts, both are

tasked with reviewing the record to determine whether the weight of evidence meets their

respective burdens of proof. If witness credibility is central to that determination, both are

able to use the witness credibility indicators referenced in Ellis to determine whether they

can fulfill the role of thirteenth juror. See Ellis, 453 S.W.3d at 904.

If our law allows successor judges, who have not seen the witnesses or heard their

testimony at trial, to review the record to determine whether they can fulfill the role of

thirteenth juror, it logically follows that the judge who sat over the original trial ought to

be able to do the same. This is especially true in a civil case in which property rights, not

life and liberty, are at stake. Cf. Curran, 4 S.W.2d at 958. Where, as here, the trial court

did not affirmatively disagree with the weight of the evidence but rather misconceived its

role as thirteenth juror, the more appropriate remedy is to remand to the trial court to allow

it to determine whether it can fulfill its role. Thus, when a trial court fails to fulfill its role

as thirteenth juror by applying an incorrect standard or misconceiving its role as thirteenth

juror, civil appellate courts no longer are to remand for an automatic new trial. Instead,

our civil appellate courts are to remand to allow the trial court to determine whether it can

fulfill its role as thirteenth juror under Tennessee Rule of Civil Procedure 59.06.

Upon remand, civil trial courts have discretion to determine whether they are able

to fulfill the role of thirteenth juror. Key to this determination is whether they have

sufficient independent recollection of the trial, in particular recollection of witness

demeanor and witness credibility. Cf. Moats, 906 S.W.2d at 436 (Drowota, J., dissenting).

It may be that the trial court has sufficient recollection of the case to easily approve or

- 16 -

disapprove the jury’s verdict without reviewing the record. See id. If the trial is not one

that was “indelibly etched in a trial court’s mind,” id., the court may use all available

methods at its disposal to aid its recollection in making the thirteenth juror determination.

The court may review the record, transcripts, and trial exhibits just as a successor judge

would. See Ellis, 453 S.W.3d at 904, 907. In doing so, the court may recall indicators of

witness credibility such as witnesses’ reputation for truth and veracity; intelligence;

respectability; interest in the outcome of the trial; feelings about the case, parties, or other

witnesses; bias or lack thereof; means of knowledge; reasonableness of statements; and

general character. See id. at 904. Corroborating or conflicting evidence or other proof in

the record can also be used to recall witness credibility. See id.; Bilbrey, 858 S.W.2d at

915 (Tipton, J., concurring). If video recording of the trial is available, as in this case, the

trial court may use this tool as well.

However, it is important that the trial court possess some modicum of independent

recollection of the trial and not rely wholly on the record. In Moats, we pointed out that a

trial court without independent recollection is no better off than an appellate court in

weighing the evidence and fulfilling the role of thirteenth juror. 906 S.W.2d at 435; see

also id. at 436 (Drowota, J., dissenting) (“First, I agree that in order to perform its duty as

thirteenth juror, the trial court must have an independent recollection of the trial

proceedings; simply reading the record on remand will not suffice.”). A trial court

functioning as thirteenth juror without independent recollection would be doing what we

have always prohibited our appellate courts from doing. See James E. Strates Shows, Inc.

v. Jakobik, 554 S.W.2d 613, 616 (Tenn. 1977) (“On appeal the evidence cannot be weighed

as in the trial court.”). Even successor judges have the ability to recall witnesses in order

to view their demeanor while testifying. See Tenn. R. Civ. P. 63 (“In any trial or hearing,

with or without a jury, the successor judge may recall any witness.”). In contrast, the

original trial judge has no such advantage upon remand. Thus, the trial court ought to

exercise discretion to fulfill the role of thirteenth juror upon remand when it possesses

sufficient independent recollection of the trial, or when it is able to refresh its independent

recollection upon review of the available record, including video. Thus, independent

recollection includes recollection that has been refreshed through review of the record.

If the trial court determines that it is unable to fulfill the role of thirteenth juror, it

must order a new trial. The trial court may come to this conclusion if it has insufficient

independent recollection after reviewing the record to approve or disapprove the jury’s

verdict. This is especially so if the court has insufficient independent recollection of

witness demeanor and witness credibility, and witness credibility is material to the weight

of the evidence. Cf. Ellis, 453 S.W.3d at 902. “The time, expense, and trouble of another

trial should never be regarded where the justice of a case requires it.” Tate, 36 Tenn. (4

Sneed) at 595.

- 17 -

Our decision here overrules a long line of prior decisions mandating a new trial as

the sole remedy when a civil trial court misconceives its role as thirteenth juror. See, e.g.,

Holden, 682 S.W.2d at 905. The doctrine of stare decisis requires that we not lightly depart

from a prior decision that has been implemented and acted upon for some time, and that is

not “repugnant to some rule of law of vital importance.” In re Est. of McFarland, 167

S.W.3d 299, 305 (Tenn. 2005) (quoting Hall v. Skidmore, 171 S.W.2d 274, 276 (Tenn.

1943)). However, stare decisis is not a “universal inexorable command” requiring utter

inflexibility. Alcazar v. Hayes, 982 S.W.2d 845, 852 n. 5 (Tenn. 1998) (quoting Burnet v.

Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting)). This Court

should overturn its precedent when there is “obvious error or unreasonableness in the

precedent, changes in conditions which render the precedent obsolete, the likelihood that

adherence to precedence would cause greater harm to the community than would

disregarding stare decisis, or an inconsistency between precedent and a constitutional

provision.” McFarland, 167 S.W.3d at 306.

Two of these considerations compel our decision here. First, there has been a

change in conditions that render precedent dated. See id. at 306. Our law has developed

in its recognition that multiple aspects of witness credibility can be ascertained from

reviewing the record, although witness demeanor cannot. See Ellis, 453 S.W.3d at 904.

Even so, the availability of video recording in some of our state’s trial courts provides those

courts a means to recall witness demeanor. The number of our trial courts that currently

employ video recording technology is very small; however, those courts ought to be able

to use that technology to exercise their discretion as to whether they are able to fulfill the

role of thirteenth juror. While we are cautious to create new rules of law based upon the

availability of new technology, it is appropriate to do so when the old rules were based

upon the express lack of such technology. See Moats, 906 S.W.2d at 435 (finding that by

the time a case is remanded to the trial court after appeal, “the trial judge is unlikely to have

an independent recollection of the demeanor and credibility of all the witnesses” and “[t]he

‘human atmosphere’ of the trial forum would be lost”).

Second, our holding promotes important policies central to the administration of

justice in Tennessee, such that diverging from precedent benefits the community more than

adhering to it. See McFarland, 167 S.W.3d at 306. Allowing trial courts discretion upon

remand to determine whether they are able to fulfill the role of thirteenth juror furthers the

ends of judicial economy and expediency. Cf. Moats, 906 S.W.2d at 436 (Drowota, J.,

dissenting). A trial court may very well independently weigh the evidence and agree with

the jury’s verdict; yet if it mistakenly makes statements implying deference to the jury’s

verdict, our law formerly would have demanded a new trial, regardless of whether the

original trial had lasted two days or two months. A new jury must be impaneled, and the

trial court is embroiled in the same trial under the presumption that this will enable the

judge to fulfill his or her role as thirteenth juror, when perhaps that judge is able to fulfill

the role of thirteenth juror before the trial ever starts. While the time and expense of a new

- 18 -

trial are never to be considered when justice demands it, a new trial is not the only way to

achieve justice in this situation. Indeed, other jurisdictions remand for the trial court to

fulfill its thirteenth juror role when it misconceives that role. See, e.g., Holmes v. State,

832 S.E.2d 392, 395–96 (Ga. 2019); State v. Long, 590 So.2d 694, 702–03 (La. 1991);

United States v. Mallory, 902 F.3d 584, 597 (6th Cir. 2018) (remanding for district court

to apply correct thirteenth juror standard). Our trial courts are capable of exercising their

discretion judiciously upon remand to determine whether they are truly able to

independently weigh the evidence and fulfill the role of thirteenth juror. We trust that our

trial courts will guard against miscarriage of justice by ordering a new trial when justice

demands it.

Nevertheless, our decision here has limits. We decline Defendants’ invitation to

overrule Moats and create a new thirteenth juror rule that applies to all civil and criminal

trials in Tennessee. Moats was a criminal case interpreting the Tennessee Rules of

Criminal Procedure. See 906 S.W.2d at 434 (describing issue presented as “whether under

Tenn. R. Crim. P. 33(f), a new trial is the required remedy . . . .” (emphasis added)). On

the other hand, this is a civil case interpreting the Tennessee Rules of Civil Procedure.

Moats is not controlling law with respect to this case or with respect to the Tennessee Rules

of Civil Procedure. We decline to overrule decisions that are not controlling law. Our

decision here does not change Moats’ application in criminal cases.

Unjust Enrichment

The next issue is whether the Court of Appeals erred in upholding the trial court’s

dismissal of Plaintiffs’ unjust enrichment claims following a hearing on Defendants’

motion for judgment on the pleadings. “Unjust enrichment is a quasi-contractual theory or

is a contract implied-in-law in which a court may impose a contractual obligation where

one does not exist.” Whitehaven Cmty. Baptist Church v. Holloway, 973 S.W.2d 592, 596

(Tenn. 1998) (citing Paschall’s Inc. v. Dozier, 407 S.W.2d 150, 154–55 (Tenn. 1966)).

Under an unjust enrichment theory, courts impose a contractual obligation where there is

“no contract between the parties or the contract has become unenforceable or invalid,” and

the defendant will be unjustly enriched unless the court imposes a quasi-contractual

obligation. Id. We stated that the elements of an unjust enrichment claim are (1) “[a]

benefit conferred upon the defendant by the plaintiff”, (2) “appreciation by the defendant

of such benefit”, and (3) “acceptance of such benefit under such circumstances that it would

be inequitable for him to retain the benefit without payment of the value thereof.” Freeman

Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005) (internal quotation

marks omitted); see also Paschall’s, 407 S.W.2d at 154. “The most significant requirement

of an unjust enrichment claim is that the benefit to the defendant be unjust.” Freeman

Indus., 172 S.W.3d at 525.

- 19 -

Some lower courts, including the Court of Appeals in this case, have applied a five-

element test from Doe v. HCA Health Services of Tennessee, Inc., 46 S.W.3d 191, 198

(Tenn. 2001) to unjust enrichment claims. 13 See, e.g., Family Trust, 2022 WL 17086782,

at *13 n. 5; Educ. Res. Inst. v. Moss, No. M2005-02378-COA-R3-CV, 2006 WL 2080382,

at *2–3 (Tenn. Ct. App. Jul. 26, 2006). Yet Doe was a quantum meruit case, not an unjust

enrichment case. While this Court said in Paschall’s that actions brought under theories

of unjust enrichment, quasi contract, contract implied in law, and quantum meruit are

“essentially the same” and are often used interchangeably, we did not connote that these

causes of action are exactly the same and have the same elements. 407 S.W.2d at 154.

Four years after Doe, we set forth three elements for unjust enrichment claims in Freeman

Industries. 172 S.W.3d at 525. For these reasons, the three-element test from Freeman

Industries is the proper test to apply in this case alleging unjust enrichment. See id.

Both the trial court and Court of Appeals found that B & L Corp. v. Thomas and

Thorngren, Inc., 162 S.W.3d at 217, precluded recovery under an unjust enrichment claim

in this case. Family Trust, 2022 WL 17086782, at *14–15. In B & L Corp., defendants

were two former executives of the plaintiff company who took some of plaintiff’s

employees and clients and started their own company that competed against plaintiff. 162

S.W.3d at 194–95. Plaintiff asserted claims for breach of fiduciary duty, conversion of

tangible property, unfair competition, and unjust enrichment, among other claims. Id. at

195. As to unjust enrichment, the dispositive issue was whether the plaintiff’s “business

property and confidential information” were benefits conferred upon the defendants that

warranted recovery under an unjust enrichment claim. Id. at 217. The court found that

plaintiffs could not recover under an unjust enrichment theory because “[q]uasi-contractual

theory of recovery involves the willing conferring of a benefit by one party to the other and

is contraindicated when the benefit alleged is involuntarily conferred.” Id. (emphases

added).

13

The five elements set forth in Doe for quantum meruit claims are:

(1) There is no existing, enforceable contract between the parties covering the same subject

matter;

(2) The party seeking recovery proves that it provided valuable goods or services;

(3) The party to be charged received the goods or services;

(4) The circumstances indicate that the parties to the transaction should have reasonably

understood that the person providing the goods or services expected to be compensated;

and

(5) The circumstances demonstrate that it would be unjust for a party to retain the goods

or services without payment.

Doe, 46 S.W.3d at 198 (citing Swafford v. Harris, 967 S.W.2d 319, 324 (Tenn. 1998)).

- 20 -

However, the B & L Corp. court cited no authority to substantiate this statement.

See id. Moreover, we are able to find none. This statement is dicta, and inaccurate dicta

at that. This Court has never limited unjust enrichment in the manner suggested in B & L

Corp. To be sure, in many unjust enrichment cases a party voluntarily confers a benefit on

another party in a quasi-contractual manner, and the second party’s failure to provide

compensation resembles a breach of contract. See, e.g., Paschall’s, 407 S.W.2d at 151–

52. But the claim for unjust enrichment is not limited to such circumstances. Nor is the

voluntary conferral of a benefit one of the three elements of unjust enrichment from

Freeman Industries. See 172 S.W.3d at 525.

We are likewise unpersuaded by Defendants’ argument that unjust enrichment

“contemplates circumstances in which a plaintiff provides goods or services expecting

payment but lacks an enforceable contract to compel payment.” Whitehaven and

Paschall’s do not limit unjust enrichment in the way in which Defendants suggest. See

Whitehaven, 973 S.W.2d at 596–97; Paschall’s, 407 S.W.2d at 155–56. Rather, we

emphasized that the most important requirement for unjust enrichment claims is “that the

enrichment to the defendant be unjust.” Paschall’s, 407 S.W.2d at 155. As the

Restatement of Restitution recognizes, a benefit unjustly conferred on a party is subject to

restitution, regardless of whether the harmed party knowingly conferred the benefit on him.

See, e.g., Restatement (Third) of Restitution § 44 (2011) (“A person who obtains a benefit

by conscious interference with a claimant’s legally protected interests . . . is liable in

restitution as necessary to prevent unjust enrichment . . . .”); Restatement (First) of

Restitution § 130 (1937) (“A person who has tortiously acquired or retained a title to land,

chattels, or choses in action, is under a duty of restitution to the person entitled thereto.”).

Moreover, the facts of this case do not negate a quasi-contractual situation. Walker

contracted with Irvin to buy her redemption right, which he then used to redeem the Irvin

property. He could have contracted with the actual heirs of the other properties to buy their

redemption rights as well. Instead, he filed forged documents that purported to be contracts

between REO and alleged heirs of the properties. In the case of the Chambers property,

this allowed him to later sell the property at a profit. A jury was entitled to decide whether

these facts constituted a claim for unjust enrichment; thus, the trial court’s dismissal of the

claim on a motion for judgment on the pleadings was improper. Cf. McClenahan, 806

S.W.2d at 769.

Therefore, we overrule B & L Corp. to the extent that it holds unjust enrichment

requires a willing or voluntary conferment of a benefit from one party to the other. See

162 S.W.3d at 217.

- 21 -

Intentional Misappropriation of a Right of Redemption

Our final issue is whether Tennessee recognizes a tort for the intentional

misappropriation of a right of redemption.14 Plaintiffs argue that because Tennessee Code

Annotated sections 67-5-2701 and 67-5-2702 provide a right of redemption to persons

possessing an interest in a property sold at tax sale, there should be a tort remedy for

misappropriation or conversion of that right. Tenn. Code Ann. §§ 67-5-2701, -2702.

However, our courts have consistently declined to recognize causes of action for

misappropriation or conversion of intangible property rights. “Conversion is the

appropriation of tangible property to a party’s own use in exclusion or in defiance of the

owner’s rights.” PNC Multifamily Cap. Institutional Fund XXVI Ltd. P’ship v. Bluff City

Cmty. Dev. Corp., 387 S.W.3d 525, 553 (Tenn. Ct. App. 2012) (emphasis added); see also

Barger v. Webb, 391 S.W.2d 664, 665 (Tenn. 1965). A right of redemption is an intangible

property right as it cannot be “seen, felt, weighed and measured.” Corp. Catering, Inc. v.

Corp. Catering, LLC, No. M1997-00230-COA-R3-CV, 2001 WL 266041, at *5 (Tenn. Ct.

App. Mar. 20, 2001). Our Court of Appeals has consistently held that Tennessee does not

recognize claims for conversion of intangible property. See, e.g., Wells v. Chattanooga

Bakery, Inc., 448 S.W.3d 381, 392 (Tenn. Ct. App. 2014) (“[A]n action for the conversion

of intangible personal property is not recognized in Tennessee.”); Ralph v. Pipkin, 183

S.W.3d 362, 368 (Tenn. Ct. App. 2005); B & L Corp. v. Thomas & Thorngren, Inc., 917

S.W.2d 674, 680 (Tenn. Ct. App. 1995) (finding no authority in Tennessee supported a

claim of conversion of intangible property); Corp. Catering, 2001 WL 266041, at *5

(“[Plaintiff’s] conversion claim fails to state a claim upon which relief can be granted

because the property allegedly converted is intangible personal property.”).

Moreover, we find Plaintiffs’ arguments comparing statutory rights of redemption

to incorporeal hereditaments unavailing. Incorporeal hereditaments, such as easements and

profits à prendre, run appurtenant to the land and may be created by deed. See, e.g., Stanton

v. T. L. Herbert & Sons, 211 S.W. 353, 353–54 (Tenn. 1919). As a result, interference with

an easement or other incorporeal hereditament is actionable as an invasion of a real

property right. A right of redemption, on the other hand, may not be created by deed.

While a right of redemption may be assignable by deed, the sole source of this right is

statutory. See Tenn. Code Ann. §§ 67-5-2701, -2702. In creating this statutory right, the

General Assembly did not create a cause of action for misappropriation of the right. In

addition, a right of redemption is not and has never been one of the incorporeal

hereditaments recognized by common law. Cf. 2 William Blackstone, Commentaries 21.

14

Plaintiffs styled this claim as “theft of the right of redemption” in the trial court, “intentional

interference with the right of redemption” or “misappropriation of the Plaintiffs’ redemption rights” in the

Court of Appeals, and “intentional misappropriation of the right of redemption” in this Court.

- 22 -

We agree with the Court of Appeals that Tennessee law does not recognize claims

for conversion of intangible property rights. Therefore, we decline to recognize a claim

for misappropriation or conversion of a statutory right of redemption.

CONCLUSION

In conclusion, we hold that remand to the trial court to determine whether it is able

to fulfill the role of thirteenth juror is an available remedy when a civil trial court

misconceives its role as thirteenth juror or applies an incorrect standard. We further hold

that the claim of unjust enrichment does not require a voluntary or willing conferring of a

benefit, and overrule B & L Corp. to the extent that it holds otherwise. 162 S.W.3d at 217.

Finally, we decline to create a new tort for misappropriation or conversion of a statutory

right of redemption.

We affirm in part and reverse in part the decision of the Court of Appeals, and

remand to the trial court for proceedings consistent with this opinion.

_________________________________

DWIGHT E. TARWATER, JUSTICE

- 23 -