IN THE COURT OF APPEALS

FOR THE STATE OF TENNESSEE

AT KNOXVILLE

CLUB LECONTE)

)

Appellant,)No. E2007-00852-COA-R3-CV

)

v.)

)KnoxCounty Circuit Court

CAROLINE SWANN, )Docket No. C-06-360306

)General Sessions No. 14144G

Appellee.)

)

APPELLATE BRIEF OF PLAINTIFF/APPELLANT

CLUB LECONTE

Bradley L. Henry, BPR#025447

800 S. Gay Street, Suite 2610

Knoxville, TN37929

(865) 521-7422

ATTORNEYS FOR PLAINTIFF/APPELLANT

TABLE OF CONTENTS

Table of Authorities……………………………………………………………………………….3

Statement of the Issues:

  1. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW THE APPELLEE’S MEMBERSHIP CONTRACT TO BE ADMITTED INTO EVIDENCE AS A PROPERLY AUTHENTICATED BUSINESS RECORD KEPT IN THE ORDINARY COURSE OF BUSINESS.
  1. WHETHER THE TRIAL COURT ERRED IN DENYING A JUDGMENT FOR UNJUST ENRICHMENT AFTER IT WAS ADMITTED THAT SERVICES WERE PROVIDED AND APPELLEE REFUSED TO PAY.
  1. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A VOLUNTARY DISMISSAL BY THE APPELLANT BEFORE THE CASE WAS FINALLY SUBMITTED TO THE COURT.

Statement of the Case………………………………………………………………………….5-6

Statement of Facts……………………………………………………………………………..6-7

Summary of Argument………………………………………………………………………..7-9

Memorandum of Law…………………………………………………………………………9-17

Conclusion………………………………………………………………………………………18

Certificate of Service…………………………………………………………………………….19

TABLE OF AUTHORITIES

Case Law

CPB Mgmt., Inc. v. Everly, 939 S.W.2d 78, 80 (Tenn. Ct. App. 1996) (quoting Lawler v. Zapletal, 679 S.W.2d 950, 955 (Tenn. App. Ct. 1984) (quoting Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 154 (Tenn. 1960……………………………………………………………………12

CPB Mgmt., Inc., 939 S.W.2d at 81 (quoting Castelli v. Lien, 910 S.W.2d 420, 427 (Tenn. Ct. App. 1995))…………………….………………………………………………………………...14

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996)………………………………9

Crye Leike, Inc., et al. v. Ouer, W2003-02590-COA-R3-CV (Tenn. App. Ct. November 16,2004)…………………………………………………………………………………….……14

Jaffe v. Bolton, 817 S.W.2d 19, 26 (Tenn. Ct. App. 1991)…………………………………… 13

Moyers v. Graham, 83 Tenn. 57, 62 (1885)………..……………………………….……………13

Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 54, 407 S.W.2d 150, 154 (1966)………..…………13, 14

Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993)…………………………………...... ……9

Reprise Capital Corp. v. Rogers Group, Inc., 802 S.W.2d 608, 610(Tenn. Ct. App. 1990)…….14

Russell v. Crutchfield, 988 S.W.2d 168, 170 (Tenn. App. Ct. 1998)…………………………….9

Robinson v. Durabilt Mfg. Co., 195 Tenn. 452, 454-55, 260 .W.2d 74, 175 (1953)………..……………….………………………………………………………..……….…13

Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915

(Tenn. 1999)……………………………………………………………………………………….9

Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)…………………………………9

V.L. Nicholson Co. v. Transcon Inv. & Fin. Ltd., 595 S.W.2d 474, 482 (Tenn. 1980)………….14

Weedman v. Searcy, 781 S.W.2d 855, 856-857 (Tenn. 1989)...... 8.15,16

Wrinkle v. J.F. Larue & Son, 9 Tenn. App. 161, 165-66 (1927)……….………….…………….13

Rules of Civil Procedure

Tenn. R. Civ. P. 41.01(1)…………………………………………………………………………15

Tenn. R. Civ. P. 41.02(2)…………………………………………………………………………16

Rules of Appellate Procedure

Tenn. R. App. P. 13(d). ……….………………………………………………………………….9

Rules of Evidence

Tenn. R. Evid. 901(a)...... 7,10,12

Tenn. R. Evid. 901(b)……………………………………………………………………………10

Tenn.R.Evid.902 (11)……………………………………………………………………..10,11,12

Tenn. Evid. 803(6)…………………………………………………………………………...11,12

STATEMENT OF THE ISSUES

  1. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW THE APPELLEE’S MEMBERSHIP CONTRACT TO BE ADMITTED INTO EVIDENCE AS A PROPERLY AUTHENTICATED BUSINESS RECORD KEPT IN THE ORDINARY COURSE OF BUSINESS.
  1. WHETHER THE TRIAL COURT ERRED IN DECLARING A JUDGMENT FOR UNJUST ENRICHMENT AGAINST THE APPELLEE AFTER IT WAS ADMITTED THAT SERVICES WERE PROVIDED AND APPELLEE REFUSED TO PAY.
  1. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A VOLUNTARY DISMISSAL BY THE APPELLANT BEFORE THE CASE WAS FINALLY SUBMITTED TO THE COURT.

STATEMENT OF THE CASE

PROCEDURAL HISTORY

This action was originally filed in the General Sessions Court for Knox County, Tennessee on April 5, 2006, alleging delinquent debts for goods and services, membership dues, interest, special costs, attorney fees, court costs and other costs. Judgment was rendered in favor of the Plaintiff, Club LeConte. An Appeal was taken by the Defendant, Caroline Swann, from that case, with an Appeal Bond filed on April 19, 2007, to the CircuitCourtofKnoxCounty. Tr., Vol. I, p. , ¶ . A trial was held on April 9, 2007 in the Circuit Court for Knox County, Tennessee.Tr., Vol. I, p. , ¶ .

At trial, plaintiff presented Donna Burkett (hereinafter referred to as “Ms. Burkett”), accountant and records custodian for Club LeConte, claiming breach of contract and alternatively unjust enrichment for failure to pay for services and goods provided at a wedding reception contracted with Club LeConte by Appellee, Caroline Swann. Tr., Vol. I, p. 34, ¶ . Plaintiff presented oral testimony through Ms. Burkett and attempted to establish a membership contract through Tenn. R. Civ. P. 803(6), 901 and 902. Tr. Vol. I, p. 34-35, ¶ . Defendant objected and the trial court denied Plaintiff’s request to admit the membership contract to establish fees, costs and attorney fees. Tr., Vol. I, p. 35, ¶ . The Plaintiff also called the Defendant to the stand who admitted that she had received goods and services from Club LeConte and had not paid for them. Tr., Vol. I, p. 36-37, ¶ . Defendant also admitted that she had been a member of Club LeConte, had paid dues and had signed a membership contract. Tr., Vol. I, p. 36-37, ¶ .

Plaintiff closed its proof and Defendant’s counsel made a motion for involuntary dismissal. Tr., Vol. II, p. 3-4, ¶ . Defendant presented no proof in the case. The trial judge began questioning each attorney regarding the case. Tr., Vol. II, p. 4, ¶. Plaintiff’s attorney made a claim for recovery under the theory of unjust enrichment and engaged the court in discussion of the issues and answered the numerous questions the trial judge imposed. Before the trial judge made any ruling and during the period of argument and questioning by counsel and the court, the Plaintiff announced its intention to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41.01. Tr., Vol. II, p. 4, ¶ . After notice of voluntary dismissal was given, the trial court began a lengthy discussion of the case. After a period of time, the trial court granted the Defendant’s motion for involuntary dismissal and dismissed the case. Tr., Vol. II, p. 4, ¶ . The trial court made no indication that it intended to rule on the motion for involuntary dismissal before it actually made its ruling.

Plaintiff filed a Notice of Appeal and Appeal Bond with the clerk of court as prescribed by the Tennessee Rules of Civil and Appellate Procedure. The Plaintiff Appeals to this Court for relief under multiple theories.

FACTS

Appellant adopts its Rule 24(C) Statement of Evidence (Tr., Vol. I, p. 34-37) as if fully rewritten herein and further states as follows:

Appellee, Caroline Swann (hereinafter referred to as “Appellee”), became a member of Club LeConte in 1997. Tr., Vol. I, p. 34, ¶ . At the inception of her membership with Club LeConte,Appellee signed a standard contract for membership. Tr., Vol. I, p. 34, 36, ¶; (Tr. Ex. #1) . The contract used in 1997 and the contract used by Club LeConte today are the same and each members contract is kept in their file. Tr., Vol. I, p. 34,35 , ¶ . Appellee, during the time of her membership, paid dues to Club LeConte. Tr., Vol. I, p. 36 , ¶ . The membership contract calls for the payment of late fees, attorney’s fees, costs and investigator fees. Tr., Vol. I, p. 35, ¶.

In September of 2005, Appellee was married and had a wedding reception at Club LeConte. Tr., Vol. I, p. 36, ¶ . During that wedding reception, Appellee was provided goods and services by Club LeConte that are specifically laid out in Trial Exhibit #2. Tr., Vol. I, p. 36, ¶; (Tr. Ex. #2). The cost of the reception was $39.95 per person for 121 people plus 9 bottles of champagne at $27 per bottle for a total amount of $6,633.40. (Tr. Ex. #2; Tr. Ex. #3). The total outstanding debt owed to Club LeConte including late fees and attorney’s fees is $17,713.17. Tr., Vol. I, p. 35, ¶ . Appellee received the goods and services described and was very satisfied with the job that Club LeConte did. Tr., Vol. I, p. 36, ¶. No written contract for the goods and services provided at the reception exists.

Appellee was billed as a club member for the goods and services that Appellee received. Tr., Vol. I, p. 35, ¶ . Appellee did not pay any money to Club LeConte for the reception and has still made no payment. Tr., Vol. I, p. 35-36, ¶ . Appellee’s mother fell at the reception and based on this Appellee feels entitled to be relieved of outstanding debt owed to Club LeConte. Tr., Vol. I, p. 36-37, ¶ .

SUMMARY OF ARGUMENT

Club LeConte raises three questions on appeal. The first deals with the admissibility of a contract kept by Club LeConte in the ordinary course of business. The second question deals with a claim for unjust enrichment. The third claim raises issues of Voluntary Dismissal and when a case is “finally submitted to the Court”.

In the first claim made by Club LeConte, the membership contract contained in the record as Exhibit #1 for Identification should have been admitted. Tennessee Rules of Evidence Rule 901 states that “[t]he requirement of authenticity or identification as a condition precedent to admissibility is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid. 901(a). The membership contract in dispute was kept and is admissible as a business record or record of regularly conducted activity pursuant to Tenn. R. Evid. 803(6), 901 and 902(11); (Tr. Ex. #1). Testimony by Ms. Burkett assures the trustworthiness of the membership contract by having been kept as a record of regularly conducted activity. Each member of Club LeConte has signed the same contract since at least 1997 until present. Each member’s contract is kept in their file at Club LeConte. This contract was made at the time Appellee joined Club LeConte and was kept in the ordinary course of business. Overriding questions of trustworthiness have been satisfied and the membership contract is admissible over objections of authenticity and lack of foundation.

Club LeConte further claims that if Appellee is allowed to keep the services admittedly provided to her it will constitute unjust enrichment. Club LeConte has no written contract with the Appellee for the services provided for the reception in question. Club LeConte provided valuable goods and services and the Appellee received them to her benefit. She has admitted that she received a bill and did not pay for those goods or services. It would be unjust to allow Appellee to reap the benefit of these goods and services without compensating Club LeConte.

Finally, Club LeConte asserts that it requested a voluntary dismissal in a timely fashion and that the nonsuit should have been granted without prejudice. “In a non-jury case, until the case has been finally submitted to the trial court for a decision, the plaintiff has a right to a voluntary dismissal.” Weedman v. Searcy, 781 S.W.2d 855, 856-857 (Tenn. 1989). After presentation of Plaintiff’s evidence at trial, the defendant moved for an involuntary dismissal. The trial judge had discretion to rule on the case or move forward with further evidence. The judge asked questions of counsel for each party. After questioning by the judge and before the cause was finally submitted for decision, Club LeConte requested a voluntary dismissal. The trial court made no ruling on the request and began speaking to the parties. After a lengthy discussion of the facts of the case, the trial judge improperly granted the Defendant’s request for involuntary dismissal. The case had not been finally submitted to the judge for decision and the nonsuit should have been granted without prejudice.

This Court should reverse the trial court’s decision regarding the membership contract’s admissibility and remand the case for further proceedings; alternatively, this Court should reverse the trial court’s denial of recovery based on unjust enrichment and remand this case for further proceedings. Finally, this Court should, in a third alternative, reverse the trial court’s denial of voluntary dismissal and remand this case to the trial court for entry of an order for voluntary dismissal without prejudice.

MEMORANDUM OF LAW

This case was tried as a bench trial before the Honorable Wheeler Rosenbalm Judge of the Circuit Court of Knox County, Tennessee. The trial court's conclusions of law are accordedno presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993). An evidentiary ruling by the trial court is a question of law, the standard of review is de novo with no presumption of correctness. Russell v. Crutchfield, 988 S.W.2d 168, 170 (Tenn. App. Ct. 1998). In this case the trial judge made an erroneous evidentiary ruling regarding the admissibility of the membership contract that should be afforded no presumption of correctness.

In a non-jury case such as this one, the Court must review the record de novo with a presumption ofcorrectness as to the trial court's determination of facts, and must honor those findings unlessthere is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses,especially where issues of credibility and weight of oral testimony are involved, considerabledeference must be accorded to the trial court's factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999).

I. AUTHENTICITY

At trial, no hearsay objection was raised regarding the membership contract entered as Exhibit #1 for identification. Tr. Ex. #1. Appellee did raise objection to the membership contract based on questions of authenticity which is controlled by Tenn. R. Evid. 901 and 902. Tr., Vol. I, p. 35, ¶ .

Tenn.R. Evid. 902(11) provides, in pertinent part, that extrinsic evidence of authenticity is not required for certified business records:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required as to the following:

(11)Certified Records of Regularly Conducted Activity. - The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by an affidavit of its custodian or other qualified person certifying that the record:

(A) was made at or near the time of the occurence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The Plaintiff’s actual business records custodian introduced the membership contract and testified that it was made when Ms. Swann joined Club LeConte, was kept in the course of regularly conducted activity, and was made as a regularly conducted activity as a regular practice.

Similarly,Tenn.R. Evid. 901(a) provides, “[t]he requirement of authenticity or identification as a condition precedent to admissibility is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid. 901(a). Rule 901 goes further to illustrate examples of authentication, yet does not limit the ability to authenticate a record by means other than the enumerated examples. Tenn. R. Evid. 901(b).

A business record kept in conformity with Tenn. R. Evid. 803(6) is self authenticating under Rule 902 if it is certified. Similarly, when reading rule 901 and 902 in conjunction with one another, a business record should still be admissible under Rule 901 if it is not certified by affidavit, but instead a live custodian of records appears and testifies that such record is in conformity with Rule 803(6) and 902(11). In essence Rule 901 does not limit the means of authentication but merely provides guidance, and the court should look further to Rule 902 to discern that a business record is admissible. It would undercut reason to say that a business record certified by affidavit is self authenticating, while the live witness testimony of the records custodian is insufficient to prove authenticity. Each act, whether by affidavit or live testimony, by the party presenting the evidence goes directly towards evidence sufficient to prove the matter in question is what it is claimed to be pursuant to the rule of authentication.

In this case, Ms. Burkett testified that she was the director of accounting for Club LeConte and her duties include keeping the files regarding payroll, billing, accounts receivable and accounts payable. Tr., Vol. I, p. 34, ¶ . Ms. Burkett testified that the membership cotract was the standard contract, in the name of Caroline Swann used by Club LeConte when a new member joins and that it is kept in each members file. Tr., Vol. I, p. 34, ¶ . Ms. Burkett testified that this document was in substantially the same condition it would have been in the day it was signed. Tr., Vol. I, p. 34, ¶ . Ms. Burkett also testified that she had knowledge that this was the same contract used in 1997 and the procedure had not changed since then and it was kept in the ordinary course of business. Tr., Vol. I, p. 35, ¶ . Ms. Burkett stated that the files and procedures had been given to her by Club LeConte. Tr., Vol. I, p. 34, ¶ . Ms. Burkett testified that she had control over these files and had accessed and reviewed Ms. Swann’s file regarding this matter. Tr., Vol. I, p. 34, ¶ . Finally, Ms. Burkett testified that the document was an accurate copy of Ms Swann’s contract kept in her file. Tr., Vol. I, p. 35, ¶ . Further, Appellee admitted that she had signed a contract with Club LeConte for membership and had paid dues subject to that contract. Tr., Vol. I, p. 36, ¶ .

The membership contract was kept and is admissible as a business record or record of regularly conducted activity pursuant to Tenn. R. Evid. 803(6), 901 and 902(11). Testimony by Ms. Burkett assures the trustworthiness of the membership contract by having been kept as a record of regularly conducted activity. Each member of Club LeConte has signed the same contract since at least 1997 until present. Each member’s contract is kept in their file at Club LeConte. This contract was made at the time Appellee joined Club LeConte and was kept in the ordinary course of business. Overriding questions of trustworthiness have been satisfied and the membership contract is admissible over objections of authenticity and lack of foundation.

Club LeConte respectfully requests that this Court reverse the ruling of the trial court as to the admissibility of the membership contract and remand this case for further proceedings as to the amount of damages owed to Club LeConte by Appellee.

  1. UNJUST ENRICHMENT

“The doctrine of unjust enrichment is founded upon the principle that someone who receives a ‘benefit desired by him, under circumstances rendering it inequitable to retain it without making compensation, must do so.’” CPB Mgmt., Inc. v. Everly, 939 S.W.2d 78, 80 (Tenn. Ct. App. 1996) (quoting Lawler v. Zapletal, 679 S.W.2d 950, 955 (Tenn. App. Ct. 1984) (quoting Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 154 (Tenn. 1960). The Court of Appeals in Jackson has specifically laid out the five (5) elements necessary to recover under the theory of unjust enrichment as follows:

A party seeking to recover on a quantum meruit action is entitled to recover the reasonable value of services performed when the following circumstances exist:

(1) there must be no existing, enforceable contract between the parties covering the same subject matter. Robinson v. Durabilt Mfg. Co., 195 Tenn. 452, 454-55, 260 S.W.2d 174, 175 (1953);

(2) the party seeking recovery must prove that it provided valuable goods and services, Moyers v. Graham, 83 Tenn. 57, 62 (1885); Wrinkle v. J.F.; Larue & Son, 9 Tenn. App. 161, 165-66 (1927);