Session September 6, 2017
from the Chancery Court for Davidson County No. 15-202-II
Carol L. McCoy, Chancellor.
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
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Abdel Ati, Nashville, Tennessee, for the appellant, Gameel
Johnston Ellis, Old Hickory, Tennessee, for the appellee,
Richard H. Dinkins, J., delivered the opinion of the court,
in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
RICHARD H. DINKINS, JUDGE.
AND PROCEDURAL HISTORY
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
. Gamel Mesad pay 30, 500
. only thirty thousand five hundred
. to Joseph Yousef he owe to
. Joseph 5, 000.00 only five
. Signature [document was signed by Gamel
Mesad and Joseph Yousef]
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,
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.
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.
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. 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.
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
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.
Credibility of the parties and witness
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
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
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.
with the foregoing, the Order memorializing the oral ruling
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.
noted in Kelly v. Kelly, deference to a trial
court's determination of witness credibility is
substantial, and our review of those determinations is
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).
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
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.
Impeachment of Defendant
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. 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
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?
Q. You're saying you didn't ...