# Family Trust Services LLC v. Green Wise Homes LLC

> Tennessee Supreme Court · July 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10465853

## Case

- **Court:** Tennessee Supreme Court
- **Decided:** July 10, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10465853

## How later opinions describe it (automated extraction)

- describing issue presented as “whether under Tenn. R. Crim. P. 33(f), a new trial is the required remedy . . . .” (emphasis added)
- finding no authority in Tennessee supported a claim of conversion of intangible property

## Opinion text

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.
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10465853. Public record. Not legal advice.