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Mesad v. Yousef

Court of Appeals of Tennessee, Nashville

February 22, 2018


          Session September 6, 2017

         Appeal from the Chancery Court for Davidson County No. 15-202-II Carol L. McCoy, Chancellor.

         Plaintiff entered into a contract with Defendant for the purchase of a convenience market, whereby Plaintiff purchased the store's inventory and assumed the lease and other contractual obligations of the business. Three years after the sale, Plaintiff filed suit, alleging fraud, unjust enrichment, breach of contract, and violations of the Tennessee Trade Mark act of 2000, all in connection with the sale and operation of the business. Following a trial, the trial court dismissed the suit. Plaintiff appeals; we affirm the judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Ali Abdel Ati, Nashville, Tennessee, for the appellant, Gameel Mesad.

          Leroy Johnston Ellis, Old Hickory, Tennessee, for the appellee, Joseph Yousef.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.




         In December 2011, Gameel Mesad ("Plaintiff) entered into an agreement to purchase Quick and Easy, a convenience store owned and operated by Joseph Yousef ("Defendant") in Lebanon, Tennessee. At the time they entered into the agreement, the parties signed an inventory list dated December 23, 2011, which contained the following handwritten notations:

. Gamel Mesad pay 30, 500
. only thirty thousand five hundred
. to Joseph Yousef he owe to
. Joseph 5, 000.00 only five
. Thousand
. Signature [document was signed by Gamel Mesad and Joseph Yousef]

         The sheet listed as classes of inventory: grocery, cigarette, tobacco, beer, propane/pipes, miscellaneous, and gas; the "gross total" of the inventory was listed as $39, 546.61, and the "net total" was listed as $35, 322.69.[1]

         At the time the inventory sheet was signed, Plaintiff tendered to Defendant $30, 500.00, and a cashier's check for $50, 000.00; the next day, Plaintiff gave Defendant an additional $5, 000.00. In due course, Plaintiff assumed the lease agreement with Quick and Easy, Inc., the owner of the property on which the store was located, and a ten year contract with Mixon-Nollner Oil Company for gasoline and related pumping and sales equipment, and transferred utilities into his name; Defendant canceled his business license and beer permit, and Plaintiff applied and received a license and permit in his name.

         The heart of the dispute in this case relates to the $50, 000.00 check that Plaintiff gave Defendant: Plaintiff asserts that the check was only given to Defendant as a deposit on any amounts Defendant would have to pay to the landlord or supplier; Defendant contends that the check was given to him to pay for the purchase of the business. The check, dated October 29, 2011, was payable to Plaintiff, and Defendant deposited the check into his account on December 12, 2011; the parties dispute whether it was endorsed by Plaintiff The business failed in April of 2013, and Plaintiff filed a proceeding in bankruptcy.

         On February 12, 2015, Plaintiff initiated this action to recover $50, 000.00, plus interest, on the grounds of fraud, breach of contract, and unjust enrichment, and $17, 191.36 "plus any amounts that the defendant might had received from December 2011 through February 2015" on the grounds of fraud and unjust enrichment.[2] In his Amended Complaint, Plaintiff added a third count in which he alleged that Defendant had violated the Tennessee Trade Mark Act of 2000, Tennessee Code Annotated section 47-25-501, et seq., and sought treble damages pursuant to section 47-25-514(a). Defendant answered, denying liability and asserting several affirmative defenses. At the conclusion of trial, the court stated its factual findings and conclusions and ruled in favor of Defendant; these finding and conclusions were incorporated into a judgment.

         Plaintiff appeals, articulating nine issues; for ease of resolution and in the interest of clarity, we have divided the issues into three areas: (1) the trial court's conduct of the trial and credibility determinations; (2) substantive causes of action asserted by Plaintiff (contract, trademark, and fraud); (3) the court's action in setting aside a default judgment.


         Review of the trial court's findings of fact is de novo upon the record, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006). Review of the trial court's conclusions of law is de novo with no presumption of correctness afforded to the trial court's decision. See Kaplan, 188 S.W.3d at 635.


         I. Trial Determinations

         A. Credibility of the parties and witness

         Plaintiff contends that the trial court erred in dismissing the case without making an express finding as to his credibility; he argues that, by failing to make such a finding, the trial court "blocked itself from determining the validity of the plaintiff's causes." Plaintiff contends that the court erred in finding Defendant to be credible because "he [Defendant] has not been truthful and changed his story 'under oath' multiple times on every single issue." Plaintiff likewise contends that the court erred in finding a witness, Aboualkasem Mohamed, to be credible "despite his bias, inconsistency, lack of knowledge."

         In its oral ruling the court made the following finding as to the credibility of the parties and witness:

The individual that I found to be most credible was Mr. Mohamed. He is as close to an impartial witness as I could get. I recognize that he is a friend of the Defendant. But in the cross-examination he was asked a number of questions. He testified that he is no longer in a business relationship with Mr. Yousef. He was queried as to what would happen if Mr. Yousef had to pay the $50, 000. He testified that if Mr. Yousef asked him to contribute he would.
That was in the face of [Plaintiff's counsel] asking him whether or not he had terminated the business relationship with Mr. Yousef. He asked him a number of pointed questions to suggest that perhaps their parting was less than friendly. I was impressed with Mr. Yousef's forthrightness - - not Mr. Yousef - - Mr. Mohamed's forthrightness.
I also have to say that I think, whether it's the facility of the language, Mr. Yousef was straightforward in his testimony.
Mr. Mesad was - - because of the language facility required to use a translator, that sometimes impairs the Court's ability to determine credibility, and that is why I turned primarily to the documents to determine the whether or not versions of both gentlemen had credibility.
And I find that the explanation given by Mr. Yousef to be highly credible because of the documents that support it. [3]

         Consistent with the foregoing, the Order memorializing the oral ruling stated:

9. The Court finds Mr. Mohamad to be a credible witness.
10. The Court finds the explanation of the facts given by Defendant to be highly credible due to the documents that support his testimony.

         As noted in Kelly v. Kelly, deference to a trial court's determination of witness credibility is substantial, and our review of those determinations is substantially limited:

When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses' credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses. Appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. In order for evidence to be clear and convincing, it must eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Whether the evidence is clear and convincing is a question of law that appellate courts review de novo without a presumption of correctness.

445 S.W.3d 685, 692-93 (Tenn. 2014) (citations omitted).

         We first address Plaintiff's contention that the trial court erred by not making an express finding as to his credibility, that by failing to make a credibility finding, the trial court "blocked itself from determining the validity of the plaintiff's causes, " and, therefore, we must "examine the record to make that determination about the credibility of Plaintiff." Richards v. Liberty Mut. Ins. Co., however, held:

[T]here is no requirement that a trial court make express findings of fact regarding a witness's credibility [and] the absence of such findings does not alter the applicable standard of review. Indeed, the trial court's findings with respect to credibility and the weight of the evidence, as in the present case, generally may be inferred from the manner in which the trial court resolved conflicts in the testimony and decides the case.

70 S.W.3d 729, 733-34 (Tenn. 2002) (citing Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d. 57, 62 (Tenn. 2001)). While Plaintiff has cited to testimony that he argues would support a determination that he is credible, the testimony he references merely conflicts with testimony of Defendant or Mr. Mohamed; it is not our function to second guess the lack of a credibility finding by the trial court in this regard.

         The trial court found that the language spoken by the parties called for the use of a translator and, in those instances where the language difference presented a challenge to the court's ability to make a credibility finding, the court relied on the documentary evidence to resolve the conflict in testimony and to further inform the court's decision. The court ultimately found that the testimony and documentary evidence presented failed to establish any of Plaintiff's claims. The fact that the court found that the documentary evidence buttressed the testimony of Defendant and Mr. Mohamad, which conflicted with Plaintiff's testimony, supports its credibility determinations.

         B. Impeachment of Defendant

         Plaintiff next contends that the trial court erred in two instances by not allowing him to impeach the Defendant by prior inconsistent statements. The first instance occurred in the course of Plaintiff's examination of Defendant regarding a statement Defendant made in an affidavit filed in support of his motion to set aside the default judgment.[4] The testimony cited by Plaintiff shows that Plaintiff was examining the Defendant regarding the statement that he had not received the summons and complaint; there was confusion engendered by the form of the question Defendant was asked, causing his counsel to object, and leading to the following ruling:

Q. You want to see it?
[Defendant's counsel]: Your Honor, I'm going to object to the statement - - is it true or false on the date of this affidavit, I think is the more proper question here.
I mean, because he obviously received the summons and complaint now. But on the date of this affidavit had he received the summons and complaint. I think that's the question. I object to the question because it's not specific, and I think it needs to be clarified for the witness.
THE COURT: You'll have an opportunity if this goes much longer to do that on redirect.
But [Plaintiff's counsel], the point that you're trying to make is not being made very well. I see that there is an affidavit by Mr. Yousef in which he says he never received a copy of the summons and complaint. It is dated June 3, 2015.
It also says the only document I received from the sheriff's office was a contact card, a copy of which is attached as Exhibit A. I don't see that.
Then he said I only just recently retained counsel on June 3rd, 2015, the same day that the affidavit was prepared. So I have to presume that his attorney prepared the affidavit because I don't think he prepared it.
[Plaintiff's counsel]: Did you make the statement Mr. Yousef or not make it?
A. This is my signature. Yes.
Q. This is your statement?
A. Yes.
Q. You're saying you didn't ...

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