The opinion
06/05/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 9, 2024 Session
STATE OF TENNESSEE v. CHRISTOPHER C. WHITE
Appeal from the Circuit Court for Dickson County
No. 22CC-2016-CR-371 David D. Wolfe, Judge
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No. M2023-00964-CCA-R3-CD
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After a bench trial, Defendant, Christopher C. White, was found guilty of one count of theft
valued at $10,000 or more but less than $60,000. The trial court imposed a four-year
sentence, suspended to probation, and ordered Defendant to pay $10,228 in restitution. On
appeal, Defendant argues (1) the evidence was insufficient to support his conviction; (2)
this court lacks subject matter jurisdiction to consider Defendant’s appeal; and (3)
collateral estoppel required the trial court to dismiss the case. After review, we conclude
the evidence is insufficient to support Defendant’s conviction for theft. Accordingly, we
reverse the judgment of the trial court, vacate Defendant’s conviction, and dismiss the case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Conviction Vacated; Case Dismissed
MATTHEW J. WILSON, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, P.J., and TIMOTHY L. EASTER, J., joined.
Mark C. Scruggs, Nashville, Tennessee, for the appellant, Christopher C. White
Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; W. Ray Crouch, Jr., District Attorney General; and Talmadge Woodall,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Background
A. Factual Summary
Many of the material facts of this case, as set forth by the testimony and exhibits
introduced during the bench trial in this matter, are not in dispute. On December 15, 2014,
Rebecca Munk1 contracted with Defendant’s company, CountryWide Barns and Buildings
(“CountryWide”), to build a house in Dickson County. Per the terms of the contract, Ms.
Munk was to pay CountryWide a series of “draws” or installments as follows:
Payment No.2 Description/Stage of Construction Payment Amount
1 At signing of [initial] P.O. for official plan and $57,837.81
material list development
2 Upon first material delivery $57,837.81
3 Upon completion of framing $57,837.80
4 Upon building enclosed from weather $57,837.80
5 Interior complete $43,378.35
6 Final payment $14,459.45
At trial, Ms. Munk testified she understood that per the contract, she was not responsible
for paying subcontractors. Rather, Defendant would pay subcontracting companies to
perform work on the house using the funds provided by Ms. Munk.
Among other provisions, the contract provided, “All changes to the Services by
Customer, including but not limited to changes to the style, design, color, pattern or trim
of the Improvement, shall not be undertaken by [CountryWide] without a written change
order.” Furthermore, the contract provided, “Customer acknowledges and agrees that
[CountryWide]’s worksite personnel do not have the authority to bind [CountryWide] to
any agreement, oral or written.”
Ms. Munk paid the first installment the day the contract was signed, and work began
on the house. Plans for the house initially called for a garage to be built, but on January
12, 2015, CountryWide drafted a change order reflecting the parties’ new agreement to
build a basement instead of a garage. Ms. Munk signed the agreement the following day.
Both Defendant and Ms. Munk testified at trial that the change in building plans developed
before the change order was signed, but they differed on how it happened. Ms. Munk
testified that CountryWide employees informed her that the change from a garage to a
basement was needed because of grading issues at her property, while Defendant testified
that Ms. Munk and the subcontractor handling the excavation changed the building plans
without notifying Defendant or anyone with CountryWide. Defendant testified that he
1
At the time the contract was executed, Ms. Munk was known as Rebecca Bear. The contract
references her accordingly. However, we will reference Ms. Munk as she was referenced at trial—Rebecca
Munk.
2
There are no payment numbers 3 or 6 in the contract. We have renumbered the payment list
accordingly to avoid confusion.
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learned about the change in building plans only after visiting the worksite and discovering
that the subcontracted excavating company had begun to build the basement.
Ms. Munk paid the first three installments on December 15, 2014, February 5, 2015,
and April 13, 2015, although she testified that for the second installment, CountryWide
“tried to get me to pay before the material had been delivered.” She also paid the full
$31,380 cost of the basement, and the planned cost of the garage, $20,339.28, was credited
to her account.
On July 2, 2015, the parties agreed to a second change order, with Ms. Munk paying
an additional $13,787.89 for a retaining wall eleven days later. However, at some point
before this second change order was executed, the relationship between CountryWide and
Ms. Munk had begun to deteriorate. Emails between Ms. Munk and Defendant were
introduced at trial that reflect their dispute. On May 22, 2015, Ms. Munk sent an email to
Defendant and other persons involved with the build in which she aired certain grievances.
She began her message by writing that “Communication and the lack [there]of has become
a large issue.” As particularly relevant to this appeal, Ms. Munk stated, “I am hearing YET
AGAIN how contractors on the site are NOT GETTING PAID. There is a pattern
developing here and it isn’t looking good for [CountryWide].” (emphasis in original).
However, Ms. Munk did not identify the specific contractors who claimed they were unpaid
or the amounts they were owed. She also emailed about “the porch/deck situation”; at trial,
Ms. Munk testified that CountryWide was contracted to build a concrete wraparound
porch, but they built a wooden porch instead. She also claimed to have paid an installment
for a “completed” framing job (listed as Payment No. 3 in the table above), although she
did not, in fact, have a complete framing job.
On May 26, 2015, Defendant sent Ms. Munk a reply email that included the
following:
Contractors getting paid. I am so tired of guys saying this. Again Keith and
his guys were to be paid 8000 for repair all framing, finish the porches, and
put on all the metal and soffit on the outside. To date they have been paid
5900. And look at where it is. On Thursday kieth requested 2600 for pay
for the week. I told him noway and paid him 1400. This way the day after I
met with him and recorded the meeting where he understood we had to be
10% ahead to insure completion. I am having sashia send you today, their
CPA’s, this is the contract we get them to sign per job, and the payments to
them out of the quick books. There is something not right when they go out
to this job. They never say they have not been paid. We have three on this
one that have said that. We are not recooping money I can guarantee you.
We know the Gaines thing and the other two have killed me. Do me a favor,
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look at your contract on framing, roofing, and siding. The money next to
each item is what we should pay out. Then compare it to what I have paid
out. You will see who is lying.
(Spelling in original). Ms. Munk and Defendant sent emails back-and-forth regarding the
progress and timing of the build, but none of these subsequent emails addressed Ms.
Munk’s claims about payment issues. Ms. Munk testified at trial that she paid certain
subcontractors who complained about not being paid. Other than All Tech Insulation as
explained later in this opinion, Ms. Munk did not specify who these subcontractors were
or how much she paid them.
On August 13, 2015, CountryWide issued an invoice to Ms. Munk for the
$57,837.80 installment that was due. The contract stated this payment was due when the
building was enclosed from weather, but Ms. Munk testified that the building was not so
enclosed at that point. She testified that she paid only $45,000 of that invoice because
CountryWide “had not finished the job. They needed the money. [Defendant] was
pressuring me for paint colors and cabinets.” She also said CountryWide pressured her by
contacting her on days she was appearing in court and while she was dealing with the death
of her son. Ms. Munk testified that she emailed Defendant—an email which does not
appear in the record—stating, “I refuse to pay you any more money until you finish what
should already be done, at this point.” Payment records show that based on Ms. Munk’s
previous payments, the $45,000 payment resulted in her account with CountryWide having
a positive credit of $7,663.88.
On October 9, 2015, CountryWide prepared a third change order in the amount of
$27,733.55. This change order covered the building of a basement bathroom, completion
of the wraparound porch, installation of an interior door, and core filling in the retaining
wall, among other projects. Ms. Munk testified that she did not “approve” this change
order. However, on October 28, 2015, Ms. Munk paid $28,000, which Defendant testified
he applied to the work set forth in the third change order. This was her last payment to
CountryWide. Ms. Munk testified that around November 2015, a retaining wall collapsed,
but CountryWide never repaired it.
The only subcontractors specifically referenced in the record were the plumbing
company, Precision Plumbing, and the insulation company, All Tech Insulation. Ms. Munk
testified she received a letter from Precision Plumbing stating the company had not been
paid by CountryWide. The letter, which was introduced into evidence, claimed the
plumbing company was owed $7,015. The letter was dated December 23, 2015, which
was after both Ms. Munk’s last payment to CountryWide and when she said CountryWide
stopped work on her house (in “October or November of 2015”). Ms. Munk testified that
she did not pay Precision Plumbing because they did not place a lien on her house.
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Conversely, in October 2015 the insulation company placed a lien on Ms. Munk’s house
based on the $3,213 the company claimed it was owed for work on her house. Ms. Munk
testified she did not find out about the lien until she attempted to file a quitclaim deed on
the property. In June 2017, she paid the $3,430 lien, which also included attorney’s fees
and a filing fee. A “Full Release of Judgment Lien” was signed by a representative of the
insulation company in November 2019 acknowledging “full satisfaction of the
indebtedness.”
Thomas Krantz, owner of Precision Plumbing, testified at trial that he contracted
with CountryWide to perform the plumbing work at Ms. Munk’s residence. Precision
Plumbing performed the work before Mr. Krantz sent Ms. Munk the December 23, 2015
letter. Mr. Krantz explained that he normally expected payment for Precision Plumbing’s
work about thirty days after completing the job, and if he was still unpaid within “a month
to [sixty] days” later, he would start calling the business. Mr. Krantz testified that in this
case, before sending the letter to Ms. Munk he visited what he thought were CountryWide’s
offices “[n]umerous times” but was unable to find anyone working there. No one from All
Tech Insulation testified at trial.
Chris Morris, who was employed by CountryWide between September 2014 and
October 2015, testified that around July 2015, CountryWide’s name was changed to
“Majestic Builders” and the company’s office moved to a new location. Mr. Morris
recalled subcontractors visiting CountryWide’s offices on occasion to seek payment for
work they had done on CountryWide projects, and he added that some of these
subcontractors “kept coming back.” Mr. Morris acknowledged that Defendant changed the
locks on CountryWide’s offices; Mr. Morris did not know why Defendant changed the
locks, but he supposed that the locks were changed for “security reasons.”
Defendant testified that his company did not pay the plumbers and insulators
because the money that would have paid them came from the August 2015 installment, and
Ms. Munk paid only $45,000 on that installment rather than the full amount of $57,837.80.
When asked by the trial court why Defendant did not apply Ms. Munk’s subsequent
$28,000 payment to the money she supposedly owed on the partially paid installment,
Defendant answered,
So when you’re a big company and you have that many going on, you
can’t—you can’t send that $10,000 out if someone actually has money they
should have to you, you know $10,000 to you, so you just wait until they
send it in. Then immediately you send those checks.
And we would—we would have done that on any job, because if you
have 50, that’s 500,000, if I did my math right. Then instantly you’re—
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you’re chasing down, so you just wait until they pay, they catch up and be
flush in their account.
And that’s—that’s what I’m—because there was still the 43, the 12,
and then there was the B-Board that we did that we were going to address
afterwards. So there was still a lot going on there.
Defendant testified that his company ultimately stopped work on Ms. Munk’s house
because Ms. Munk stopped paying. He claimed Ms. Munk owed his company $47,069.49,
which she disputed.
B. Verdict
Defendant was indicted on one count of home construction/home improvement
services fraud under Tennessee Code Annotated section 39-14-154 and one count of theft
of property valued at $60,000 or more but less than $250,000 under Tennessee Code
Annotated section 39-14-105. During trial, Defendant moved to dismiss the fraud count
because the version of section 39-14-154 in effect at the time Ms. Munk’s home was built
only criminalized home improvement services fraud and did not criminalize fraud related
to new home construction. The current version of the statute, 2018 public chapter 547,
amended the home improvement services fraud statute to include new home construction
and did not become effective until July 1, 2018. Recognizing this, the trial court granted
Defendant’s motion and dismissed the fraud count. Defendant also moved to dismiss the
theft count, but the trial court denied that motion. Although the indictment alleged theft in
the amount of $570,244, the trial court found Defendant guilty of theft in the amount of
$10,228, the amount of the plumbing and insulation services. The trial court found that
Ms. Munk paid for those services as part of her payments to CountryWide, but Defendant
failed to then use those funds to pay the subcontractors. The trial court specifically found
Defendant’s “explanation that the reason those were not paid is because she did not pay
her portion of the last installment” was not credible.
The trial court imposed a four-year sentence, suspended to probation, and ordered
restitution in the amount of $10,228. This appeal followed.
II. Analysis
Defendant raises several issues related to his contention that this case is a contract
dispute rather than a criminal case. He argues his conviction should be dismissed because
“this court lacks subject matter jurisdiction and the evidence does not support the [trial]
court’s verdict.” He also argues the trial court erred when it “failed to determine the rights
and duties of the parties through an analysis of the contracts which establishes that a ‘theft’
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did not occur.” Ultimately, we conclude that Defendant is entitled to relief because the
State has failed to establish beyond a reasonable doubt that a theft occurred.
A. Sufficiency of Evidence
1. Standard of Review
The standard of review for a claim challenging the sufficiency of the evidence is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State
v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). This standard of review is identical whether
the conviction relies on direct evidence, circumstantial evidence, or a combination of both.
State v. Williams, 558 S.W.3d 633, 638 (Tenn. 2018) (citing State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011)).
A guilty verdict removes the presumption of innocence and replaces it with one of
guilt on appeal, therefore, the burden is shifted to the defendant to prove why the evidence
is insufficient to support the conviction. Davis, 354 S.W.3d at 729 (citing State v. Sisk,
343 S.W.3d 60, 65 (Tenn. 2011)). On appeal, “we afford the prosecution the strongest
legitimate view of the evidence as well as all reasonable and legitimate inferences which
may be drawn therefrom.” Id. at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). “Questions concerning the
credibility of the witnesses, the weight and value to be given the evidence[,] as well as all
factual issues raised by the evidence, are resolved by the trier of fact, not this [c]ourt.”
State v. Holder, 15 S.W.3d 905, 911-12 (Tenn. Crim. App. 1999) (citing State v. Tuttle,
914 S.W.2d 926, 932 (Tenn. Crim. App. 1995)). “In a case tried without a jury, the verdict
of the trial judge is entitled to the same weight on appeal as a jury verdict.” State v.
Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). Consequently, appellate courts are precluded
from re-weighing or reconsidering the evidence when evaluating the convicting proof.
State v. Stephens, 521 S.W.3d 718, 724 (Tenn. 2017).
2. Theft of Property
Theft of property occurs when, “with intent to deprive the owner of the property,
the person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Tenn. Code Ann. § 39-14-103(a). “Consent is not effective” if it is
“[i]nduced by deception or coercion.” See id. § 39-11-106(a)(11)(A). As relevant to this
case, “deception” occurs when a person knowingly “[c]reates or reinforces a false
impression by words or conduct, including false impressions of fact, law, value or intention
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or other state of mind that the person does not believe to be true.” Id. § (a)(7)(A)(i).
Deception also occurs when a person knowingly:
Promises performance that at the time the person knew the person did not
have the ability to perform or that the person does not intend to perform or
knows will not be performed, except mere failure to perform is insufficient
to establish that the person did not intend to perform or knew the promise
would not be performed.
Id. § (a)(7)(A)(vi)(a). “The intent to deprive may be based solely upon circumstantial
evidence, and a ‘jury may infer a . . . defendant’s intent from the surrounding facts and
circumstances.’” State v. Stewart, No. M2019-01421-CCA-R3-CD, 2020 WL 6494838, at
*11 (Tenn. Crim. App. Nov. 5, 2020) (omission in original) (quoting State v. Roberts, 943
S.W.2d 403, 410 (Tenn. Crim. App. 1996)).
“Situations involving alleged fraud in connection with home repairs or installations
present a unique challenge under the theft statute.” State v. Hutchinson, No. E2010-01053-
CCA-R3-CD, 2011 WL 1621997, at *5 (Tenn. Crim. App. Apr. 25, 2011). Facts which
establish a breach of contract may not necessarily reflect an intent to defraud or constitute
“deception” within the meaning of our criminal code. See State v. Amanns, 2 S.W.3d 241,
245 (Tenn. Crim. App. 1999).
Amanns and Hutchinson, cited by both parties in their briefs, were cases in which
home contractors were convicted of theft. Of these two opinions, Amanns is more similar
factually to the present case. In Amanns, a homeowner entered into a contract with the
defendant, a contractor, to remodel the homeowner’s basement for $16,000. Id. at 242.
The homeowner paid an initial $6,000 payment to the defendant, who promptly cashed the
check and “deposited the sum of $1,760.57 with 84 Lumber Company in Knoxville for the
purchase of estimated materials to be used in the remodeling project.” Id. at 242-43. The
defendant “advised 84 Lumber that these materials were being purchased for improvements
to [the homeowner’s] house.” Id. at 243. “The proof established that the [defendant] was
under no contractual obligation to establish any such account. Moreover, [the homeowner]
had no possessory interest in the funds in the account.” Id. The defendant began renovating
the homeowner’s basement, but the homeowner grew dissatisfied with the defendant’s
work and told the defendant to stop work on the project, which he did. Id. 84 Lumber
returned $1,494.50 to the defendant, the balance of the defendant’s 84 Lumber account
after the defendant purchased materials. Id. The defendant was charged with theft of
$6,000, but the trial court granted a partial judgment of acquittal and submitted the case to
the jury only in the amount of $1,494.50. Id. The jury found the defendant guilty, but on
appeal we vacated the defendant’s conviction, concluding:
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It is undisputed that the appellant lawfully obtained possession of the
$6,000 at which time Ms. Reynolds [(the homeowner)] relinquished all of
her interest in the money. Moreover, the record is void of any proof that the
appellant took possession of the $6,000 with the intent to convert the money
to his own use. The proof in the record reflects that the appellant deposited
the money in the 84 Lumber account on July 22 and proceeded to the job site
on August 1 and began work. On August 3, the appellant discontinued work
after an exchange with Ms. Reynolds over poor workmanship. On August 4
or August 5, the appellant was instructed by Ms. Reynolds’ attorney not to
have any further contact with her. On August 5, the appellant withdrew the
$1,494.50. While these facts establish a breach of contract, they fall far short
of establishing, beyond a reasonable doubt, any intent to defraud.
“The unifying conception in all [theft] offenses is that each involves
the ‘involuntary’ transfer of property [“or of a legally recognized interest
therein,” Tenn. Code Ann. § 39–11–106(a)(24)(A)(i) (1991).],” MODEL
PENAL CODE § 223.1 (1980), and not the failure to comply with a contractual
obligation. The application of the theft statute must be limited in scope to
cases defined by the statutory language. The appellant’s conduct fails to
establish the commission of any offense recognized under our general theft
statute. For this reason, the appellant’s conviction for theft is reversed and
dismissed.
Id. at 245 (alteration in original).
In Hutchinson, a homeowner contracted with the defendant to place a roof on the
homeowner’s garage for $5,300. 2011 WL 1621997, at *1. Per the contract, the
homeowner would pay the defendant $3,000 up front, with the rest of the payment due
upon completion. Id. The homeowner gave the defendant a bank envelope containing
$3,000 cash at the contract signing on August 9, 2007, but the homeowner never saw the
defendant after signing the contract. Id. After a month, during which the homeowner tried
several times—unsuccessfully—to reach the defendant, the homeowner contacted law
enforcement. Id. When the homeowner eventually reached the defendant, the defendant
said he no longer had the money and that if taken to court, “the [j]udge will just make me
pay $15 a month.” Id. The defendant also told the homeowner “there was nothing the
police could do because ‘it was a civil case’” and that the homeowner was not the first
person to whom defendant had done “this stuff.” Id. Furthermore, the homeowner’s niece,
who was dating the defendant, testified that she and the defendant went to a casino the
same day the defendant and the homeowner signed their contract, and the defendant
gambled using cash from a bank envelope. Id. Casino records subpoenaed by law
enforcement indicated that the defendant lost $2,950 gambling on August 9 and August 10,
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2007. Id. at *3. The niece testified that the defendant was not working other roofing jobs
at the time he took the homeowner’s money, and a sheriff’s deputy testified that the
defendant told him that he was working on other jobs in Georgia at the time and would be
unable to work on the homeowner’s roof. Id. at *2. The jury found the defendant guilty
of theft of $1,000 or more. Id. at *3. On appeal, we affirmed, concluding:
The facts in the present case differ greatly from those in Amanns.
There was nothing in Amanns to suggest that the defendant never intended
to complete the work when he took the alleged victim’s deposit. However,
in this case the Defendant never bought supplies or began work on [the
homeowner’s] roof. Instead, the evidence at trial established that on August
9, 2007, the Defendant was given $3,000 by [the homeowner] in a bank
envelope. The Defendant then took [the homeowner’s niece] to Harrah’s
Casino, where he gambled using money from a bank envelope and lost
approximately $3,000. [The niece] testified that the Defendant later admitted
that the money was [the homeowner’s]. The Defendant rejected [the niece’s]
offer to buy the supplies needed to complete the job. The Defendant avoided
[the homeowner] and only spoke to him after the police had been contacted.
When the Defendant spoke to [the homeowner], he told him that he did not
have his money and, essentially, that he would never get it back.
Additionally, the Defendant lied to Deputy Wilson about what the money
was for and why he had not begun work on [the homeowner’s] roof.
Accordingly, we conclude that the State produced sufficient evidence that
the Defendant intended to deprive [the homeowner] of $3,000 when he took
the money from [the homeowner].
Id. at *5.
Although not a theft case, we find our opinion in a recent appeal of a home
improvement services fraud case instructive. In State v. Pardue, No. M2023-00227-CCA-
R3-CD, 2024 WL 1071976, at *6 (Tenn. Crim. App. Mar. 12, 2024), no perm. app. filed,
a homeowner and a contractor signed a contract in which the contractor agreed to replace
the roof and remove the porch of a mobile home. The contractor and homeowner also
“entered into an oral contract to complete an addition after the demolition of the front
porch.” Id. at *2. The homeowner paid the contactor $42,800 in various installments, but
the contractor did not finish replacing the roof and the homeowner “had to pay someone
else finish the roof.” Id. at *6. During the contractor’s work at the mobile home, the
homeowner expressed displeasure with the contractor’s work, including his failure to show
up to work and his failure to provide receipts for purchases. Id. at *2. The contractor
signed a promissory note in which he agreed to pay the homeowner $25,000 if “for any
reason” he could not complete the contracted work. Id. at *3. The trial court found the
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contractor guilty of home improvement fraud under Code section 39-14-154(b)(2), which
requires proof of “intent to defraud.” We reversed the conviction, stating:
Here . . . there is no proof that Defendant intended to defraud the residential
owner. To be fair, there is proof that Defendant did not complete the projects
he and the residential owner agreed to, in both written and possibly oral
contracts, as evidenced by the residential owner’s having to hire someone
else to complete the projects. There is also proof that Defendant did
substandard work at the residential owner’s home. However, during
recorded telephone calls, Defendant offered to get receipts from purchases
he made for materials and sit down with the residential owner to go over
those costs. Moreover, Defendant willingly signed a promissory note
agreeing to pay the residential owner $25,000 “if for any reason he’s unable
to complete the work he’s been contracted to do at [the White Bluff home].
This includes the room addition, the front porch, the carport and the walkway
to the front porch.” Without proof of intent to defraud, however, the evidence
is insufficient to support the conviction for home improvement fraud.
Because the evidence is insufficient to sustain the conviction for home
improvement fraud, we reverse the conviction.
Id. at *6 (alteration in original). Although Pardue addressed home improvement fraud
rather than theft, that case turned on whether the defendant possessed the intent to defraud.
Here, the same issue exists. As in Pardue, we conclude that in this case the State failed to
prove Defendant intended to defraud Ms. Munk.
The facts of the instant case more closely resemble those of Amanns and Pardue
than those of Hutchinson. Here, Ms. Munk paid CountryWide most of the money she owed
under the contract, and the plumbing and insulation companies performed work on Ms.
Munk’s house despite the failure of CountryWide to pay these two subcontractors. In
reaching its verdict, the trial court noted Ms. Munk’s emails to Defendant that cited
subcontractors’ difficulties in being paid and that the plumber and insulator were not paid
was evidence of “consent obtained by deception” for purposes of the theft statute.
However, we respectfully conclude such evidence did not establish, beyond a reasonable
doubt, Defendant’s intent to deceive Ms. Munk. The evidence established that Ms. Munk
did not find out about the plumber’s and insulator’s not being paid until after she made her
last payment to CountryWide on October 28, 2015. The letter from the plumbing company
was dated December 2015, and the evidence suggests Ms. Munk did not discover the lien
until 2017. Both of these dates are also after the indictment’s end date of October 31, 2015.
As in Amanns, it appears that Ms. Munk stopped paying CountryWide because she was
upset over the quality of the work rather than concerns over the plumbers and insulators
not being paid.
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The facts of this case stand in clear contrast to Hutchinson, in which the homeowner
paid a contractor for services and the contractor never performed any work on the
homeowner’s house, instead gambling the homeowner’s money away, dodging the
homeowner’s repeated attempts to contact him, and once contacted essentially telling the
homeowner that nothing could be done about the situation. Here, Defendant performed
work on Ms. Munk’s property and continued to perform work after Ms. Munk brought
several issues to his attention—even if the quality of the work was suspect.
Ultimately, the dispute at issue here was a contractual dispute rather than a criminal
matter. Arguably, the contractual dispute may have been between Defendant and any
subcontractors who were not paid rather than between Defendant and Ms. Munk. Even if
Ms. Munk was the aggrieved party, the dispute should have been resolved per the terms of
the contract.3 As in Amanns, we conclude, “While these facts establish a breach of contract,
they fall far short of establishing, beyond a reasonable doubt, any intent to defraud.” 2
S.W.3d at 245. In other words, this was bad business, not theft. Because Defendant’s
actions did not constitute theft under our criminal code, we vacate Defendant’s conviction
and dismiss the case.
B. Defendant’s Other Issues
Defendant also argues the trial court lacked subject matter jurisdiction, but cites to
no authority regarding a court’s exercise of subject matter jurisdiction generally or the
statutes establishing the jurisdiction of this court in particular. At oral argument, Defendant
conceded that the trial court’s subject matter jurisdiction was not genuinely contested.
Regardless, we conclude the trial court had subject matter jurisdiction. “[S]ubject matter
jurisdiction involves a court’s lawful authority to adjudicate a controversy brought before
it.” State v. Cawood, 134 S.W.3d 159, 163 (Tenn. 2000) (citing Northland Ins. Co. v. State,
33 S.W.3d 727, 729 (Tenn. 2000)). “In order to determine if a court has jurisdiction, we
consider whether or not it had the power to enter upon the inquiry; not whether its
conclusion in the course of it was right or wrong.” Id. (internal quotation omitted, citations
omitted).
Defendant also argues that an “Order Dismissing Adversary Proceeding” filed by a
federal bankruptcy court in his bankruptcy case—a case in which Ms. Munk was listed as
a creditor—served to collaterally estop the State from pursuing criminal charges against
him in this case. We agree with the State that Defendant has presented no evidence or
authority supporting his contention that the District Attorney General for the Twenty-Third
3
The contract provided that “any dispute or other litigation arising out of or related to this
Agreement shall be submitted to binding arbitration in Cheatham County, Tennessee[.]”
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Judicial District was “in privity” with the bankruptcy trustee. Nor does the evidence
presented by Defendant show that the bankruptcy court’s dismissal of Defendant’s
bankruptcy case establish that the elements of theft were not present in the state court case
involving Defendant and Ms. Munk. As stated in the State’s brief, Defendant “did not
present the underlying record or facts from the bankruptcy proceeding, and the scant
documentation he did provide does not include any direct finding as to the defendant’s
actions in relation to the victim in this case[.]” Defendant has not carried his burden of
establishing that the State was collaterally estopped from pursing a criminal conviction in
Circuit Court, and thus he is not entitled to relief on this issue.
III. Conclusion
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is reversed. Defendant’s conviction is vacated, and the case is dismissed.
_________________________________
MATTHEW J. WILSON, JUDGE
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