Donald Glidewell v. Ann Russell

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 17, 2004 Session

DONALD GLIDEWELL v. ANN RUSSELL

A Direct Appeal from the Circuit Court for Hardeman County
No. 9592 The Honorable Jon Kerry Blackwood, Judge

No. W2004-00305-COA-R3-CV - Filed December 13, 2004

Plaintiff-Appellant instituted a detainer action in general sessions court seeking possession
of property owned by Plaintiff-Appellant. From an adverse judgment in general sessions court,
Plaintiff-Appellant appealed to the circuit court for a trial de novo. Defendant-Appellee filed a
counter-claim in circuit court, alternatively requesting that if she is forced to vacate the premises,
she should be awarded damages for improvements made to the premises. The trial court entered
judgment for possession to the Defendant-Appellee. Plaintiff-Appellant appeals. We reverse.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Harriet S. Thompson of Bolivar for Appellant, Donald Glidewell

Terry Abernathy of Selmer for Appellee, Ann Russell

OPINION

On February 8, 2002, Plaintiff, Donald Glidewell, (“Glidewell,” “Plaintiff”, or “Appellant”)
filed a forcible entry and detainer suit against Ann Russell, (“Russell,” “Defendant,” or “Appellee”)
in the Hardeman County General Sessions Court. From an adverse judgment in the general sessions
court, Glidewell appealed to the circuit court for a hearing de novo. Russell filed a counter-claim
in the circuit court stating that the general sessions court judgment was correct but, alternatively,
asserting that should there be a judgment for Glidewell, Russell should be reimbursed for the value
of the improvements made to the property involved. After a non-jury trial on January 7, 2004, the
court entered its order on January 14, 2004, in favor of Russell. Glidewell appeals and presents one
issue for review, as stated in his brief:
 Whether the trial court erred in holding that Defendant has the right
to live in Plaintiff’s house until her death by virtue of the doctrine of
promissory estoppel.

With a few minor exceptions, the facts of the case are not in dispute. Russell does not
dispute the statement of facts set out in Glidewell’s brief, except to the extent of adopting the
statement of facts made by the court in its order. For a factual history of the case, therefore, we will
restate the facts as set out in Glidewell’s brief:

Russell and Lola Glidewell lived on a farm in the Essary
Springs area of Hardeman County. They raised three children on that
property: Donald, the oldest and Plaintiff herein; Shelby, the middle,
adopted son; and Hugh, the youngest. Although Plaintiff and Shelby
moved away from their parents’ home upon reaching adulthood,
Hugh lived with his parents virtually his entire life. He did so
because he lacked the ability to care for himself, both financially and
otherwise. Hugh’s inability to care for himself was either caused, or
greatly exacerbated, by the fact that he was an alcoholic. Several
witnesses at trial testified that Hugh was a hard worker and a good
person while sober, but that he would go on alcoholic binges for
weeks at a time and not work at all. Hugh’s problems led him to
depend upon Plaintiff, his older brother, a great deal. Because of the
brothers’ special relationship, Plaintiff tried to help Hugh as much as
possible throughout their lives.

In 1966, after getting married and moving away, Plaintiff
purchased approximately 130 acres of his parents’ property. This
property is adjacent to the approximately twenty-five acre tract upon
which Russell and Lola Glidewell’s residence was located.
Thereafter, Plaintiff improved the property and kept cattle on it.
Sometime in the late 1970s or early 1980s, either Shelby or Hugh
bought a very small, old house and moved it onto Plaintiff’s 130 acre
tract. Originally, this structure served as a storage shed for hay and
farm equipment.

Because Hugh had tremendous energy and needed something
to occupy his time when he was not drinking, he became interested in
fixing up the house. Thus, Hugh often “tinkered” with the house over
the years, improving it in various ways. Plaintiff never objected to
Hugh’s activities because he wanted his brother to have something to

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 occupy his time, and because the improvements benefitted his land.1
Subsequently, Hugh also began to use the house as a place to drink
with his friends. By retreating to the house, Hugh believed his
parents would not know that he was drinking. Because he often used
the house as a “retreat,” and because he worked on it, Hugh
apparently began to believe that the house was his.

For his part, Plaintiff allowed his brother to use the house as
a “getaway” because he was sympathetic to his unfortunate situation.
However, Plaintiff never promised Hugh the right to live in the house,
either verbally or in writing.

In the mid-1990s, Plaintiff’s mother became ill. Perhaps
because of their worsening health, Russell and Lola Glidewell deeded
the twenty-five acre tract upon which their residence was situated to
Plaintiff. However, the Glidewells reserved life estates in the
property for themselves and Hugh, thus providing Hugh with a place
to live until his death. Furthermore, Hugh was informed of his life
estate when the transaction was consummated.

At about this same time, Defendant began visiting the
Glidewells on a regular basis and providing care for Lola. Defendant
knew the Glidewells because she had grown up in the Essary Springs
area and had been married to Shelby.

During her visits, Defendant became reacquainted with Hugh,
whom she had known previously. Gradually, their relationship
blossomed and they decided to move in together. Because Lola
Glidewell would not permit unmarried couples to live in her house -
the house in which Hugh had a legal right to live - in early 1997, the
couple decide to renovate the “retreat” house and move into it.

For the next seven or eight months, Hugh, Defendant, and
Donny Wood, Defendant’s nephew – worked on the house, making
significant improvements to it. Specifically, they added rooms, wired
and plumbed the house, covered the interior walls with wood,
installed windows, and added other cosmetic touches, such as
landscaping and decorating items. According to Defendant, she and
Hugh paid some $28,000 to Donny Wood for his work on the house.

1
In fact, Plaintiff and Hugh worked together at times to improve the property. For example, together they built
a barn behind the house.

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By the fall or early winter of 1997, the renovation was essentially
complete.

During the period in which the renovation was occurring,
[Plaintiff] visited his parents and Hugh periodically from his home in
Senatobia, Mississippi, which is two hours from Essary Springs.
While Plaintiff was generally aware that some sort of renovation was
going on, he did not know the full extent of the work, as he did not
enter the house until the fall of 2000. Moreover, while Plaintiff did
not object to the work, he never promised either Hugh or Defendant
the right to live in the house. In fact, at some point, Plaintiff flatly
told Hugh and Defendant that all the property, including the two
tracts and the houses located thereon, belonged to him. Thus, as he
had with the “retreat” situation, Plaintiff simply allowed his brother
to stay in the house because of family loyalty and because he was
sympathetic to Hugh’s situation.

In 1999, Lola died and the following year Russell also passed
away. In the fall of 2000, Hugh became very ill and was soon
confined to his bed. After Hugh became sick, Plaintiff entered the
house and discovered the extent of the renovations. Thereafter,
Hugh’s condition deteriorated and, on June 3, 2001, he died. In May
2001, some two to three weeks before Hugh’s death, Plaintiff told
Defendant that he had promised Hugh that she could live in the house
for as long as she wanted or until her death. Another witness, Mary
Flake, testified that Plaintiff made such a promise to Defendant
during the last weeks of Hugh’s life.

After Hugh’s death, Defendant made a few improvements to
the property. Initially, she added a back porch. However,
Defendant’s son constructed this porch as a birthday gift to his
mother. Thus, presumably this porch cost Defendant nothing, and she
submitted no evidence at trial of any expense relating thereto.
Defendant also had a water line and meter installed. The meter cost
$300, but she was unable to produce any expenses relating to the
installation of the line.

Defendant also painted a kitchen wall, the kitchen ceiling, and
purchased window screens and three screen doors. She produced no
evidence at trial regarding the cost of these improvements. Finally,
Defendant installed a chicken coop behind the house. However, she
submitted no evidence regarding the expense of this, and Plaintiff

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 testified that she procured the material from a barn on his parents’ old
place.

In early 2002, Plaintiff decided that he again wanted to keep
cattle on the 130 acre tract. Because the house interfered with this
purpose, and in fact constituted a financial burden under the
circumstances, Plaintiff asked Defendant to leave the property.
Defendant refused and this litigation followed.

The final order entered by the trial court states as follows:

This is an action for unlawful detainer filed by the plaintiff.
It seeks possession of a house located on property they own by virtue
of a registered deed. The defendant has lived in this house since
1996, when she began to live with Hugh Glidewell, the plaintiff’s
brother. This property adjoins the plaintiff’s parents’ property. The
plaintiff obtained the parents’ property subject to a life estate of the
parents and Hugh Glidewell. Unfortunately for Hugh, he was given
to periodic alcoholic binges requiring that he stay in the parents’
home.

Sometime in 1974, the plaintiffs moved the subject “house”
to the property that adjoined their parents. In order to drink, Hugh
would stay in this house with his drinking buddies. He would also
idle away his free time at the house.

In the early 1990s, the plaintiff’s mother became ill, requiring
care and attention. The defendant had previously been married to
Shelby Glidewell, another brother of plainitff. The defendant began
to visit the plaintiff’s parents. After a short time, she began a
relationship with Hugh Glidewell. For a short time, they stayed in the
parents’ home. Eventually, they moved to the subject house. They
maintained a live-in arrangement until Hugh’s death. The defendant
continued to live in the house until the plaintiff demanded that she
move.

Before finding the essential facts necessary to resolve this
matter, the Court must comment on the credibility of the witnesses.
The salient points of controversy are sharply disputed, only after a
resolution of the issue of credibility, can the matter be resolved. The
court has resolved these disputes in the testimony in favor of the
defendant. Plaintiff’s testimony was equivocal, evasive,
argumentative and sometimes ludicrous.

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 When the Court speaks of the subject “house,” the Court uses
the word “house” loosely. Exhibits clearly indicate that when this
house was moved to the property that it was hardly habitable. Hugh
Glidewell always thought of this house as his home and at various
times, made modest improvement. However, after 1996, when the
defendant began her relationship with Hugh, substantial
improvements were made, transforming a “shack” into a commodious
home. From 1996 until the filing of the lawsuit, the interior of the
home was remodeled, rooms were added, windows and doors and
screens were purchased. Plumbing, electricity and water were added.
The property was landscaped. A garden was cultivated. An adjoining
barn was renovated. The defendant and Hugh paid over $28,000.00
to have these improvements made. The defendant performed some
of the manual labor. While these improvements were being made, the
defendant assumed that Hugh Glidewell owned the house. It was, or
should have been, obvious to the plaintiff that this house was
undergoing a dramatic transformation. The defendant spent much of
her “buried” savings in this house, purchased applicances and ceiling
fans, and other items necessary for the home. Shortly before Hugh
died, the plaintiff on two or more occasions told neighbors that the
defendant would be well-taken care of upon Hugh’s death, and that
she could live in the house for as long as she wanted, until she died.
The Court further finds that the plaintiff told her both before and after
Hugh’s death that she could live in the house. Even after Hugh’s
death, the defendant had a waterline dug to the house to provide
water. The plaintiff was aware of this line, and had, in fact, told her
to put the meter in her name. Plaintiff further told the defendant
where to locate a chicken pen and was aware that the defendant was
going to remodel the porch. At no time did plaintiff ever inform the
defendant that this house was his. As a result of both plaintiff’s
assertions and his silence, the defendant relied on his conduct and as
a result, has suffered significant detriment as a result of the promises
and omissions.

“When one makes a promise which the promisor should
reasonably expect to induce action or forbearance of a definite and
substantial character on the part of the promisee and where such
promise does, in fact, induce such action or forbearance, it is binding
if injustice can be avoided only by the enforcement of the promise.”
McBee v. Elliot Lexis 242.

The plaintiff made a promise to the defendant, i.e., that she
could live in the house. Certainly, plaintiff could reasonably expect

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 that the defendant would take action to rely on that promise. She did
take action by adding water and remodeling the porch. More
detrimental, however, was the silence of the plaintiff as [he] watched
his brother and defendant expend significant money and labor to
transform a $1,200 shack (appraised value) into a valuable,
comfortable home.2 One word from the plaintiff could have stopped
this injustice, but instead, plaintiff allowed his silence and his
admission to imply a right for the defendant to live in this home.

The Court concludes that the plaintiff is estopped to deny the
defendant the right to this house. The promise is that defendant shall
have a right to live in this home for as long as she wishes, or until she
dies. That is the contract that the plaintiff must fulfill.

Judgment rendered for the defendant, with costs assessed
against the plaintiff.

Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the trial court’s findings, we must affirm, absent error of law. See
Tenn. R. App. P. 13(d). We further note that when the resolution of the issues in a case depends
upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses
in their manner and demeanor while testifying is in a far better position than this Court to decide
those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. App. 1997). The weight, faith, and credit to be given to any witness’s
testimony lies in the first instance with the trier of fact, and the credibility accorded will be given
great weight by the appellate court. Id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959
(Tenn. 1997).

Russell asserts that Glidewell sat silently and idly by and watched the transformation of an
old and uninhabitable shack into, in the words of the trial court, a “commodious home.” Russell
relies upon the doctrine of equitable estoppel and quotes extensively from Church of Christ v.
McDonald, 171 S.W.2d 817 (Tenn. 1943) as follows:

We think the weight of modern authority is that, even though no fraud
is intended, yet one may be estopped from claiming property where
by intentional concealment of facts he has induced another to act to
his prejudice. It is unnecessary to state the well known essential
elements which must exist which lie at the basis of the doctrine of

2
There is no proof in the record that plaintiff was made aware that defendant was expending her money for the
house.

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equitable estoppel. Mr. Pomeroy's Equity Jurisprudence, Vol. 3, p.
189, says:

"Equitable estoppel is the effect of the voluntary
conduct of a party whereby he is absolutely precluded,
both at law and in equity, from asserting rights which
might perhaps have otherwise existed, either of
property, of contract, or of remedy, as against another
person, who has in good faith relied upon such
conduct, and has been led thereby to change his
position for the worse, and who on his part acquires
some corresponding right, either of property, of
contract, or of remedy."

The learned author further says:

"It is not absolutely necessary that the conduct
mentioned in the first subdivision should be done with
a fraudulent purpose or intent, or with an actual and
fraudulent intention of deceiving the other party. The
adoption of such an element as always essential would
at once strike out some of the most familiar and best
established instances of equitable estoppel."
Pomeroy's Eq.Jur., Vol. 3, pp. 193, 194.

The doctrine of estoppel is often spoken of as a branch of the law of
fraud. This is true if and when "fraud" is used in the general sense of
what is "inequitable" or "unjust"; but it is not accurate if by fraud is
meant deceit. Bispham's Principles of Equity, 10th Ed., § 280, p. 479.

Mr. Chief Justice Perley, in the leading case of Horn v. Cole, 51 N.H.
287- 289, 12 Am.Rep. 111, says:

"The doctrine has not in equity been limited to cases
where there was an actual intention to deceive. * * *
The general current of our decisions on the subject
tends to a liberal application of the doctrine for the
suppression of fraud and dishonesty, and the
promotion of justice and fair dealing." (Italics ours.)

See, also, Rogers v. Colville, 145 Tenn. 650, 661, 238 S.W. 80.

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The doctrine of equitable estoppel is founded upon the soundest
principles of justice and morality, rather than upon technical rules of
law. The intentional concealment of the truth often operates as an
estoppel. "If a man is silent when it is his duty to speak, he shall not
be permitted to speak when it is his duty to be silent." Bispham Eq.,
10th Ed., § 284. While one is not in duty bound under all
circumstances to speak out, we hold that, where one's silence enables
him to acquire an unfair advantage over another in the settlement of
property rights, it is his duty to speak. The foregoing principle has
often been applied. A man who holds himself out as a partner is
estopped, as against those who have dealt on the faith of such holding
out, from denying the partnership. Under the same head fall cases in
which a party has been held to be precluded from denying that he
occupied a certain position by reason of his having permitted himself
to be held out to others as having occupied it. Towne v. Sparks, 23
Neb. 142, 36 N.W. 375; Bridger's Case, L.R. 9 Eq. 74; Washburn on
Easements, 62, 63. See our own case of Electric Light & Power Co.
v. Bristol Gas, Electric Light & Power Co., 99 Tenn. 371, 42 S.W.
19, 21, wherein the Court held that one "will not be allowed to assert
his lien to the prejudice of persons whom he has induced to believe
that his debt has been satisfied, or that he will claim no lien and who,
in that belief, have purchased that property on which the lien rests."
The Court further held the right to invoke the doctrine "does not
always rest on the intention of the party to be affected by it, but is
dependent, rather, upon the reasonable or legitimate effect of his
statement or conduct in the particular matter upon the course of
[others]." (Italics ours.)

The term "conduct", when applied to a person in relation to the
modern doctrine of equitable estoppel, embraces not only ideas
conveyed by words written or spoken and things actually done, but
includes the silence of such person and his omission to act, as well.
Wampol v. Kountz, 14 S.D. 334, 339, 85 N.W. 595, 86 Am.St.Rep.
765; footnote, 31 C.J.S., Estoppel, § 87, p. 305, quoting Farr v.
Semmler, 24 S.D. 290, 123 N.W. 835, 838.

In Tobias v. Josiah Morris & Co., 126 Ala. 535, 28 So. 517, 522, it
was said: *822 "Negligent silence may work an estoppel as
effectually as an express representation. * * * So, too, acts or conduct,
though nothing is said, if they are calculated to mislead, and do in fact
mislead, will work an estoppel, notwithstanding there was no
intention to do so."

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171 S.W.2d at 821-22.

While we agree with the above authority, we must disagree with Russell’s assertion. It is
undisputed that Glidewell allowed his brother, Hugh Glidewell, to occupy the property and that,
subsequently, Russell moved into the house with Hugh Glidewell. Although the extent of
Glidewell’s knowledge of the improvements being made is in dispute, there is nothing in the record
to indicate that Glidewell was put on notice that Russell was expending money and labor on the
property. We also note that Russell testified that she was under the impression that Hugh Glidewell
owned the property. Therefore, anything that she did she was doing to improve the property for
Hugh Glidewell.
We comment upon the trial court’s obversation concerning credibility. We reviewed the
written record of this case and, while we are confined to what is placed on the written page, we fail
to see the extent of “equivocal, evasive, argumentative and ludicrous” testimony. At any rate, as we
have previously stated, there is nothing in the record to indicate that Glidewell had any knowledge
of any improvements or expenditures made by Russell until after the death of his brother, Hugh.
There is no dispute that about a week or so prior to Hugh’s death, Glidewell told Hugh and Russell
that Russell could occupy the property as long as she wanted to or until her death. After Hugh’s
death, this was reiterated by Glidewell to Russell. Russell relied upon Glidewell’s statement and
expended money for a water line and for some additional improvements to the building. Glidewell
relies upon the doctrine of promissory estoppel. In Calabro v. Calabro, 15 S.W.3d 873 (Tenn. Ct.
App. 1999), this Court said:

Promissory estoppel is explained as:

[a] promise which the promisor should
reasonably expect to induce action or forbearance on
the part of the promisee or a third person and which
does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the
promise. The remedy granted for breach may be
limited as justice requires.

Amacher v. Brown-Forman Corp., 826 S.W.2d 480, 482 (Tenn.
App. 1991) (quoting Restatement (Second) of Contracts § 90); see
also Alden v. Presley 637 S.W.2d 862, 864 (Tenn. 1982).

There are limits to the application of promissory estoppel:

Detrimental action or forbearance by the
promisee in reliance on a gratuitous promise, within
limits constitutes a substitute for consideration, or a
sufficient reason for enforcement of the promise
without consideration. This doctrine is known as

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 promissory estoppel. A promisor who induces
substantial change of position by the promisee in
reliance on the promise is estopped to deny its
enforceability as lacking consideration. The reason
for the doctrine is to avoid an unjust result, and its
reason defines its limits. No injustice results in
refusal to enforce a gratuitous promise where the loss
suffered in reliance is negligible, nor where the
promisee's action in reliance was unreasonable or
unjustified by the promise. The limits of promissory
estoppel are: (1) the detriment suffered in reliance
must be substantial in an economic sense; (2) the
substantial loss to the promisee in acting in reliance
must have been foreseeable by the promisor; (3) the
promisee must have acted reasonable in justifiable
reliance on the promise as made.

Alden 637 S.W.2d 864 (citing L. Simpson, Law of Contracts § 61 (2d
ed. 1965)).

Id. at 878-79.

It is undisputed that Glidewell made the statements to Russell concerning her occupancy of
the property subsequent to Hugh’s death, and the statements were of such a nature that it is
reasonable to assume that she would rely upon them. Reliance on these statements, however, did
not require her to make any move whatsoever, as she had been living on the property with Hugh up
until the time of his death; and following Hugh’s death, Russell lived there alone, without paying
any rent or expense whatsoever for the use of the property. However, she did make some
expenditures in reliance on statements made by Glidewell. Consequently, Glidewell’s change of
mind concerning her continued occupancy of the property constitutes a breach of the promise he
made. However, as noted in Calabro, supra, “the remedy granted for breach may be limited as
justice requires.” Id. at 878.

While it appears unjust to remove Russell from this property, it also appears unjust to deprive
Glidewell and his wife of the property, for what could be a good number of years, especially since
the Glidewells legally own the property. Therefore, we think the remedy for the breach of the
promise should be the detriment incurred by Russell by virtue of her reliance on the promise (i.e.,
the expenditures that she has made since the date of the promise on which she relies). However, the
record is incomplete as to the damages allegedly sustained, which we will consider as an oversight
without culpable negligence. Under these circumstances, T.C.A. § 27-3-128 is applicable. That
section provides:

Remand for correction of record.

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 The court shall also, in all cases, where, in its opinion, complete
justice cannot be had by reason of some defect in the record, want of
proper parties, or oversight without culpable negligence, remand the
cause to the court below for further proceedings, with proper
directions to effectuate the objects of the order, and upon such terms
as may be deemed right.

Accordingly, the order of the trial court is reversed, and the case is remanded to the trial court
for entry of an order granting Glidewell possession of the disputed property and for a hearing to
determine the amount of damages necessary to compensate Russell for expenditures made
subsequent to and in reliance upon Glidewell’s statements made after the death of Hugh Glidewell.
Costs of the appeal are assessed one-half to Appellant, Donald Glidewell, and his surety, and one-
half to Appellee, Ann Russell.

__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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