IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 02, 2013
Tonya Andrews, As Admin. for the Estate of James Christopher Sprinkle &
Jacob Colton Sprinkle a minor by next friend and Guardian Tonya Andrews
v. Amy Sprinkle and Frank Wray
Appeal from the Circuit Court for Maury County
No. 13558 Stella L Hargrove, Judge
No. M2012-02242-COA-R3-CV - Filed September 30, 2013
The basic issues in this appeal involve the valuation of a decedent’s business at the time of
his death. After the decedent died, the decedent’s mother was appointed administratrix of
his estate. She filed this lawsuit against the decedent’s wife and the decedent’s wife’s
brother, alleging that they had wrongfully disposed of virtually all of the decedent’s property
after his death, including his business assets, thereby rendering a proper administration of the
estate extremely difficult if not impossible. Following a four-day bench trial, the trial court
concluded that the defendants had wrongfully taken possession of the decedent’s business
assets and converted them to their own personal use. Relevant to this appeal, the court
valued the decedent’s business at $75,000, and it held that the defendants were jointly and
severally liable to the estate for that amount. The defendants appeal, challenging only the
amount of damages awarded by the trial court for the value of the business. After a careful
review of the record, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.
Larry Samuel Peterson, Jr., Columbia, Tennessee, for the appellants, Amy Sprinkle and
Frank Wray
L. Bruce Peden, Columbia, Tennessee, for the appellees, Tonya Andrews and Jacob Cole
Sprinkle
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
James Christopher Sprinkle (“Decedent”) owned and operated a plumbing business
called Rooter Drain and Plumbing (“Rooter”). He started the business around 2001 or 2002.
Rooter eventually grew to serve a four-county area in Middle Tennessee, including Maury
County, Marshall County, Giles County, and Lawrence County. Rooter acquired and
operated at least two “box trucks” or “box vans” which were equipped with all the necessary
tools for completing plumbing jobs. Besides Decedent, Rooter generally employed between
one and three additional employees.
In October 2009, Decedent died as a result of a gunshot wound. The cause of death
was ruled “undetermined.” He was found inside his home by his wife, Amy. Decedent was
thirty-five years old at the time of his death. Decedent was the father of one son, twelve-
year-old Jacob, from a previous marriage.1 Decedent had been married to his wife, Amy, for
seven years, and she had three children from a previous marriage. Decedent, Amy, and the
four children resided together in the marital home. Decedent operated the Rooter plumbing
business from his home and two shops located on the property.
On the same day Decedent died, Amy and her three children left the marital home and
went to live with her brother, Frank Wray.2 Decedent’s son, Jacob, went to live with his
grandmother, Decedent’s mother, Tonya Andrews. Neither Amy nor the children spent
another night in the marital home after Decedent’s death.
Months after Decedent’s death, his mother, Mrs. Andrews, was appointed
Administratrix for his estate. In October 2010, one year after Decedent’s death, Mrs.
Andrews filed this lawsuit against Decedent’s wife, Amy, and her brother, Frank. Relevant
to this appeal,3 the complaint alleged that Decedent owned, at the time of his death, “a
1
Jacob’s mother died in a car accident when he was young, and he lived with Decedent and Amy
full-time.
2
Amy later changed her name from Amy Sprinkle to Amy Wray. To avoid confusion, we will
simply refer to her as “Amy” throughout this opinion. For clarity, we will also refer to Amy’s brother, Frank,
simply as “Frank,” because another brother, P.J. Wray, will also be discussed. We mean no disrespect by
using these references.
3
The complaint also alleged that the Decedent owned substantial personal property that had been
wrongfully converted by the Defendants. In addition, Mrs. Andrews’ complaint included a separate claim
(continued...)
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successful and valuable plumbing business including substantial equipment, tools, vehicles,
and the good will of the business.” Defendant Frank Wray had been employed by Rooter
prior to Decedent’s death, and the complaint alleged that Frank had wrongfully taken
possession of Decedent’s plumbing business equipment, tools, vehicles and supplies after
Decedent’s death, without giving any consideration for such, and continued to operate the
Decedent’s plumbing business himself. The complaint alleged that Amy aided Frank in
having all of the telephone numbers for Rooter transferred to Frank in order to capture the
clientele and goodwill of Decedent’s business. The complaint alleged that Decedent’s
plumbing business was a valuable and profitable going concern which could have been
administered and sold as an asset of Decedent’s estate, with the proceeds being available for
the payment of claims against the estate and for distribution to the Decedent’s heirs,
including Jacob. Instead, the complaint alleged, Amy and Frank wrongfully sold, gave away,
or disposed of virtually all of Decedent’s vehicles and plumbing business tools and
equipment. Mrs. Andrews alleged that, as Administratrix of Decedent’s estate, she was
entitled to possession of all property owned by Decedent at his death in order to properly
administer his estate, and she claimed that she was entitled to a judgment against the
defendants for their wrongful and unlawful conversion of the Decedent’s property. Mrs.
Andrews sought a judgment against the defendants for the value of all property that was
wrongfully converted, sold, or otherwise disposed of after Decedent’s death.
The defendants filed an answer in which they alleged that many of the disputed items
were either stolen, repossessed, or sold by Amy in an effort to support herself after
Decedent’s death. The defendants claimed that Rooter was not a profitable business. The
defendants also claimed that even if Rooter did have some value, then Amy would be entitled
to an interest in the business as a marital or partnership asset, or in her position as surviving
spouse.
A four-day bench trial was held April 9-12, 2012, before Judge Stella Hargrove. The
trial judge heard from eight witnesses and received forty-four exhibits. Decedent’s mother,
Tonya Andrews, testified that she had enjoyed a very, very close relationship with Decedent
and spoke to him nearly every day. She testified that Decedent started the Rooter Drain and
Plumbing business in 2001. Mrs. Andrews testified that the number of employees
simultaneously working for Rooter varied, with Decedent employing as few as one and as
3
(...continued)
on behalf of Jacob, filed by Mrs. Andrews as his next friend and guardian, to recover Jacob’s personal
property that was never recovered from the marital home. However, these claims involving personal property
are not at issue in this appeal. The issues before us are limited to the claim regarding the value of Decedent’s
business. We will only discuss the personal property issues to the extent that they shed light on the parties’
circumstances and the issues on appeal.
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many as three additional employees at various times during its operation. Mrs. Andrews
named at least seven employees who had worked for Rooter at different times. She described
the business as successful and busy. Mrs. Andrews testified that Decedent advertised
Rooter’s services in several telephone books, including the Yellow Pages and several out-of-
county publications. Rooter maintained four telephone numbers, one for each of the four
counties it regularly served, and it advertised in all four counties. Mrs. Andrews identified
Rooter’s Yellow Page ad, which was in color and covered two full pages, and prominently
featured Rooter’s logo, “The All in 1 Plumber.” Mrs. Andrews testified that Rooter also
advertised via telephone, business cards and magnets, an Internet web page, and “word of
mouth.”
Mrs. Andrews identified photographs of a Rooter box truck that were taken by
investigators the day Decedent died.4 The truck displayed Rooter’s name, logo, and a
telephone number for each of the four counties it served. Mrs. Andrews said she did not
know what happened to the box truck after Decedent died. Mrs. Andrews also identified a
photograph of a 2007 Ford F-150 pickup truck with a camper over the back, which Decedent
used at least part time in his business. This truck and another business truck owned by
Decedent were repossessed after his death. Mrs. Andrews testified that Decedent maintained
two shops behind his house and owned tools and equipment to equip his plumbing business.
Mrs. Andrews testified that she had been unable to locate any assets or bank accounts
with available funds that would enable her to administer the Decedent’s estate. In her
capacity as personal representative of the estate, Mrs. Andrews had subpoenaed Decedent’s
tax records, bank statements, and telephone records in an effort to identify and locate
Decedent’s property. Mrs. Andrews testified that she had “exhausted every resource that
[she] knew” and spent hundreds of hours reviewing those documents. Mrs. Andrews
testified that Decedent’s wife, Amy, did not provide her with any records or information
regarding Decedent’s business or his financial affairs, and that Amy would not respond to
her calls or text messages. She testified that Amy had closed the Rooter bank account and
other accounts belonging to Decedent after Decedent’s death, and Decedent’s house was sold
through foreclosure. Mrs. Andrews testified that it was also difficult to trace Decedent’s
financial transactions because he often dealt with cash.
As noted above, Decedent died in October 2009. Mrs. Andrews testified that
Decedent had not yet filed his 2008 income tax return at the time of his death because he had
4
From our review of the photos, the front part of the vehicle looks like a full-sized van, but the back
of the vehicle, starting behind the doors, looks like a large “box” with Rooter’s name and information
displayed on all four sides. The box extended to a height taller than the top of the van’s cab. The back of
the box contained a large vertically sliding door, similar to the back of a semi trailer or a moving truck.
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sought a filing extension. The last income tax return filed by Decedent was for the 2007 tax
year, and it reflected that Rooter had gross receipts of $186,233 in 2007. After deducting
about $98,000 for depreciation on Decedent’s real property (his shops) and his personal
property, and deducting various other expenses, such as $37,793 for advertising and nearly
$20,000 for various telephone bills, Decedent’s tax return listed taxable business income of
only $17,000. The tax return showed no other income for Decedent, Amy, the four children,
or Amy’s mother, who was also claimed as a dependent on the return. Because of this, Mrs.
Andrews testified that she believed that Decedent’s tax return was inaccurate and that it did
not fully reflect the value of the Rooter plumbing business. Mrs. Andrews pointed out that
Decedent owned a pool, a hot tub, a pool table, several four wheelers, four jet skis, a fishing
boat, and a pontoon boat, and she opined that it would be impossible for Decedent to
maintain such a lifestyle and support six dependents if Rooter was not a profitable business.
Mrs. Andrews testified that she believed that Decedent was not reporting all of his income
because he was paid in cash for many of his jobs. She also pointed out that Decedent’s return
was obviously inaccurate in the sense that it did not reflect any payments being made to
Rooter’s employees. Mrs. Andrews testified that she was unable to find any records for
payments to employees. She described Decedent as “a very poor bookkeeper.”
Decedent had submitted some documentation of his income and expenses for the 2008
tax year when he filed his application for a filing extension. According to these documents,
Rooter’s gross receipts for 2008 totaled $180,969. That year, Decedent spent $23,664 on
Bell South advertising and $10,872 on advertising in another publication. Decedent listed
total advertising costs of $51,492.
Mrs. Andrews testified that she attempted to calculate Rooter’s income from 2009
“from what [she] had to go on.” However, due to the lack of records, Mrs. Andrews was
only able to calculate Rooter’s income based upon how many checks had been written to
Rooter by customers and deposited directly into Rooter’s bank account. There was no record
of customers’ cash transactions or customers’ checks that may have simply been cashed.
Mrs. Andrews testified that she did not count as income any cash deposit into Rooter’s
account, even if she suspected that it was payment for a job, because she could not confirm
the source of such funds. She also limited her calculation of Rooter’s business income to
checks from customers, and excluded checks from other sources, such as a $3,600 tax refund
and $5,300 in checks from an insurance company. The checks from customers that were
deposited into Rooter’s bank account between January and September of 2009 totaled
$47,291.57.
Mrs. Andrews was asked to testify as to her opinion regarding the value of Rooter as
of the date of Decedent’s death, based upon her knowledge of Rooter’s business, tools,
equipment, vehicles, and financial information. She was specifically asked to state her
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opinion as to what a willing purchaser would have paid for the assets and goodwill of the
business. Mrs. Andrews estimated that the total value of the company was between $100,000
and $150,000. She explained that her opinion was based in part upon a consideration of the
checks written to Rooter in 2009 for labor, the vehicles Decedent had owned, the tools he
owned, and the value of the assets he was depreciating on his tax returns. Mrs. Andrews
noted that she had reviewed numerous documents regarding the tools purchased by Decedent,
in addition to her personal observations of the tools in the past, and she estimated that he had
“close to $200,000” invested in tools and equipment. She described one particular “locator”
camera that Decedent used for running down into pipes and showing customers where
blockages were located. She explained that the locator camera was purchased by Decedent
for over $8,000. She testified that Decedent owned several rooter machines that “go down
in the drains,” all kinds of hand tools, electric tools, saws, drills, hammers, generators, sump
pumps, vacs, and “just about every kind of tool imaginable.” Aside from the tangible tools
and equipment, Mrs. Andrews also pointed out that Rooter had “its name.” She said that
Decedent’s advertising over the years had established a presence in the plumbing market.
Mrs. Andrews testified that Decedent spent $7,000 per month on advertising for the business.
She said that Decedent “built his business up” by “years and years of repeat calls and
establishing rapport with his clients and being referred by them to other people.”
Mrs. Andrews testified that after she was appointed as Administratrix of Decedent’s
estate, months after Decedent’s death, she learned that Rooter still had listings and
advertisements in various telephone books. At trial, she identified two telephone books, from
2011 and 2012, which listed Rooter’s telephone numbers as the same numbers listed on
Decedent’s box truck. There was also a Yellow Page ad for Rooter listing the same
telephone numbers. Mrs. Andrews testified that, as Administratrix, she was not involved
with this advertising for Rooter in 2011 and 2012. Mrs. Andrews testified that she called one
of the telephone numbers listed for Rooter in 2011 and heard an automated voice recording
of her deceased son’s voice. Mrs. Andrews testified that she subpoenaed the records for the
telephone numbers from the telephone company, and she learned that all of the numbers had
been transferred to Frank’s wife, Melinda Wray (Amy’s sister-in-law). Mrs. Andrews said
that anyone who saw the Rooter ad and called the Rooter telephone number would continue
to believe that they were dealing with Decedent’s company. Mrs. Andrews testified that the
actions taken by Frank (Amy’s brother) after Decedent’s death, such as the assumption of
Rooter’s expensive advertising and telephone bills, further evidenced the fact that Rooter was
a valuable and successful business.
Mrs. Andrews acknowledged on cross-examination that Decedent was not working
as much in 2009 (prior to his death in October) as he had worked in previous years. Amy’s
brother, P.J. Wray, was employed by Rooter, and he had a room at Decedent and Amy’s
house where he stayed for some time. P.J. Wray was found murdered outside the house in
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2007. Decedent was the beneficiary of a life insurance policy on P.J.’s life, and Decedent
was a suspect in the murder investigation, although charges were never filed against him.
Decedent, Amy, and the children moved out of the marital home and into Mrs. Andrews’
home for a period of several months after P.J. died. Decedent began seeing a psychiatrist,
and at the time of his death, he was being prescribed 270 Xanax per month. Mrs. Andrews
opined that Decedent was “overprescribed.” Decedent received over $100,000 from P.J.’s
life insurance policy in early 2009. Mrs. Andrews acknowledged that Decedent was partly
living off of these life insurance proceeds in 2009. Decedent also gambled frequently. Mrs.
Andrews was aware of the fact that Decedent had fallen behind on his advertising bill before
his death, and she learned after Decedent’s death that he was also about two months behind
on his mortgage payment. Mrs. Andrews also learned that the Rooter bank account had a
negative balance during June of 2009. The claims filed against Decedent’s estate after his
death totaled $7,056. Mrs. Andrews testified that one of the claims was filed by a Rooter
customer whose plumbing service was not completed at the time of Decedent’s death.
Mrs. Andrews testified that she believed that Amy and Frank had something to do
with Decedent’s death. She testified that both were investigated by the local sheriff’s
department and the Tennessee Bureau of Investigation, and that no charges were filed, but
the official cause of death was ruled “undetermined.”
Mrs. Andrews’ husband, Greg Andrews, testified as well. He had been married to
Mrs. Andrews since 2004, and he had known Decedent since about 2002. Mr. Andrews
testified that he was familiar with the tools and equipment owned by Decedent in connection
with his business because he had visited with Decedent at his home and observed them, and
he had gone with Decedent on business calls on a couple of occasions when Decedent needed
assistance. Mr. Andrews testified that Decedent’s shops were “covered with tools and air
compressors and stuff all over.” According to Mr. Andrews, the Rooter plumbing business
was well equipped and well tooled, and it was marketed and advertised in a professional and
business-like fashion. Mr. Andrews testified that at one time Rooter operated two large box
trucks. On cross-examination, Mr. Andrews admitted that Decedent was not working “as
hard” in his business in 2009. Mr. Andrews said he had observed a change in Decedent’s
behavior after P.J. Wray’s death in 2007, in that Decedent was worried about the ongoing
investigation and the fact that he was a suspect. He noted that Decedent and Amy stayed at
the Andrews’ home for several months after P.J. died and said that he and his wife were
trying to help Decedent and Amy “get over” losing P.J. and “get back on their feet.”
Decedent’s son, Jacob, testified as well. He was fifteen years old at the time of trial.
He described Decedent’s shop as having an air compressor and “just a bunch of tools.”
Regarding the events that transpired after Decedent’s death, Jacob testified that he went to
the house where he lived with Decedent and Amy on one occasion soon after Decedent died
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in order to get clothes and a few other items, but he did not retrieve more of his belongings
at that time because he assumed he would be returning. He testified that most of his clothing
and other belongings were never retrieved from the house. Jacob testified that he saw one
of Amy’s children wearing his boots at school after Decedent died, and when Jacob
confronted him, the boy said he had taken them from Jacob’s room.
Several of Rooter’s former employees testified as well. James “Bodie” Whitfield
testified that he worked for Rooter for several months between 2004 and 2005. Mr.
Whitfield testified that Rooter was busy during that time and operating two trucks. He
named three other Rooter employees with whom he worked during that time period, aside
from Decedent. Mr. Whitfield testified that he mostly worked on Rooter’s jobs for
residential customers but he worked on a few commercial jobs as well. Mr. Whitfield was
a long-time friend of Decedent aside from their working relationship. When asked about
Decedent’s financial situation, he said, “He always had money on him.” Mr. Whitfield
recalled one occasion when he went to a gun show with Decedent, five to six months before
he died, and Decedent had $10,000 in cash with him. When Mr. Whitfield was asked about
his reaction to seeing Decedent with that much money, he said, “It wasn’t unusual for
[Decedent] at all.”
The next Rooter employee to testify was Rusty Carpenter. He worked for Rooter from
2005 until at or near the time of Decedent’s death in October 2009. Mr. Carpenter had
previously worked for another plumbing business, but when that company’s business “got
slow,” the owner referred him to Rooter, where Mr. Carpenter began working full-time. Mr.
Carpenter testified that Rooter’s business was busy, and that he would begin working at 7:00
or 7:30 a.m. each day, with a page of ten to fifteen calls that were scheduled for the day over
four counties. Mr. Carpenter said he had also worked calls in five counties during one day.
Mr. Carpenter testified that he had on occasion worked seven days per week, and well over
forty hours. Mr. Carpenter said he received $500 cash per week for his salary, “week in
week out,” and that he might have received a check on two to four occasions throughout his
years of employment. Mr. Carpenter acknowledged that Rooter’s business “slowed down
at the end a little bit, but,” he added, “we was pretty busy [sic].” He admitted though that
Decedent did not work “as much” in 2009.
Mr. Carpenter testified that he was not required to supply any of his own tools when
he worked for Rooter. He said he did use his own hand tools out of personal preference, but
that Decedent told him from the beginning that there was no need to bring anything because
“there was a van fully stocked.” Mr. Carpenter said the van contained hand tools, digging
tools, camera tools, snake tools, and basically whatever was needed. Mr. Carpenter said
Decedent also had “tools out the ying-yang” in the big shop behind his house. When asked
how Rooter’s tools and equipment compared with that owned by Mr. Carpenter’s previous
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employers in the plumbing business, Mr. Carpenter said that Rooter had “more than what I
was used to.” He said his previous employers did not have “the cameras, the C snakes, and
stuff like that.” Mr. Carpenter also said that his previous employers never had a vehicle
comparable to Decedent’s box van. He said “everything we needed was on that truck;
everything. [Decedent] didn’t want to get to a call and have to go back to Lowe’s for parts,
[so] we had it all on [the van].”
Mr. Carpenter testified that after Decedent died, he contacted Frank Wray about the
personal tools that he had stored in the Rooter truck, and Frank told him that “everything had
come up stolen.” Mr. Carpenter testified that Rooter’s box truck was moved to Frank’s
house after Decedent died.
Mr. Carpenter acknowledged that he and Decedent went gambling together on
numerous occasions. He said that Decedent had attained a “seven-star” member rating at the
casinos, which was “the best member you can be in the casino.” He also claimed that
Decedent won more than he lost. When asked where Decedent obtained his gambling
money, Mr. Carpenter said, “That, I couldn’t tell you. The man had a profitable business for
six, seven, eight years, so I guess he had his own money.” Mr. Carpenter noted that
Decedent also owned guns, three or four jet skis, a few four wheelers, a motorbike, flat
bottom boats, and vehicles that he would flip and sell.
The next witness to testify was Chaney Turnbo, who was Decedent’s brother and Mrs.
Andrews’ son. He testified that he held a full-time job but worked for Rooter numerous
times over the years when Decedent needed his assistance with big jobs or “odd and end
things.” Mr. Turnbo estimated that in 2008 and 2009, he worked for Rooter maybe once or
twice a month. Mr. Turnbo described Decedent’s plumbing equipment as follows:
He had a lot of tools. He had power tools, hand tools, he had camera systems
that he used to look down pipes with, he had drain cleaning tools which was
used to clean out the drains with, snake machines of all different sizes, big
ones, medium ones, small ones. Of course, all his hand tools, which is shovels
and his pick axes and stuff like that. He had a lot of tools.
Mr. Turnbo stated that after P.J.’s death in 2007, Decedent “might have slowed down a little
bit, but he was always working.” Mr. Turnbo said that he knew of two box trucks that
Decedent used regularly. He testified that after Decedent’s death, he saw the “box” from one
of the box trucks in a nearby town, with the Rooter logo still displayed on it, as if the box had
been “stripped” from the truck.
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Decedent’s wife Amy also testified. She said that she did not know what equipment
Decedent owned at the time of his death. She said that Decedent always swapped and traded
things, throughout their marriage, such as equipment, boats, and “anything like that.” She
also claimed that Decedent “pawned several things” at “the end” because he needed money.
Amy testified that there were several break-ins at the marital residence after Decedent’s
death, and because she was not living there at the time, she did not know “where everything
went.” Amy testified that she drove the Rooter box truck to Frank’s house a couple of days
after Decedent died because someone broke into it at the marital residence. She claimed that
the first theft of tools and equipment occurred just “a couple of days” after Decedent’s death.
She claimed that when she returned to the house to pack, there “wasn’t much to pack.”
Amy testified that she transferred Rooter’s telephone numbers to Frank’s wife shortly
after Decedent died because she was unable to pay the bills, and transferring the numbers
“made sense” to her because Frank had plumbing experience. She said the numbers were set
up in such a way that when any of the four telephone numbers received a call, the call would
“roll over” to one phone. Amy said the numbers were transferred and put in the name of
Frank’s wife, “doing business as All-in-One Plumbing.”
Amy was asked if she was in possession of any of Rooter’s tools and equipment, and
she responded that the box truck was at Frank’s house and that she did not want it anymore.
She said she did not, to her knowledge, have any of Rooter’s tools. She stated, “I'm
assuming they got taken along with the other stuff in the house and throughout the house and
throughout the property.” Amy testified that she did not know the whereabouts of a
computer that Decedent used in connection with his business. She claimed that everything
was stolen, right down to the dishes, the children’s clothing, shoes, toys, televisions, and
bedroom suites. She claimed that neither she nor her family members took Jacob’s things,
and that his property was at the house when she left in October and gone when she returned
to move things out in February. Amy testified that she reported the thefts to the local
sheriff’s department, but she was unsure as to what action the sheriff’s department took in
response. Amy’s attorney introduced a sheriff’s department report that was filed in January
2010, three months after Decedent died, which stated that Amy reported “everything” being
gone, including “numerous tools.” With regard to the camera that Decedent used for Rooter,
Amy testified that she recalled there being a camera “earlier on,” and she described it as a
fiberoptic, top-of-the-line, high grade camera. However, she suggested that Decedent might
have gotten rid of it after P.J. died, or perhaps it was stolen when they were living at the
property owned by Mrs. Andrews. Counsel for Mrs. Andrews then referred Amy to the
sworn claim made against Decedent’s estate by the Rooter customer, which stated:
Run camera down sewer line. This was done to flush out sewer line.
Supposed to replace a part of sewer line. There was roots. Not done. Job did
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not get done.
According to the sworn claim, this was done on October 8, 2009, just six days before
Decedent died. Amy then suggested that perhaps Decedent rented a camera for the job.
Amy conceded that the income Decedent earned from Rooter provided the vast
majority of support for the family during the marriage, aside from some child support she
received from her children’s father, and her occasional babysitting and substitute teaching
jobs. She said Decedent also “wheeled and dealed” on the side. She acknowledged that she
and Decedent were able to provide financial assistance to other people, such as her mother.
When asked where Decedent obtained his money, Amy said she assumed that it came from
Rooter, but she did not question Decedent about his money. Amy said she did not know
much about the family’s finances, as she simply asked Decedent for money, without knowing
the balance in their accounts. Amy was asked about the whereabouts of any bank statements,
cancelled checks, or records that would have been maintained at the marital residence, and
she conceded that they were there “at one point in time,” but she denied having possession
of them, stating, “so a lot of them were taken, gone through. I don’t know – gone through
by other people, not myself. . . . Whoever went through the house.” She admitted that she
closed all of the bank accounts after Decedent died but denied that there was any significant
amount of money in them. Amy testified that she gave away the hot tub because it was
broken, she disposed of the pool table because it was damaged, she sold the jet skis because
they did not run, and the pontoon boat and Decedent’s truck were repossessed after Decedent
died.
Amy testified that she “trusted” Decedent during their marriage, but that she had since
come to believe that he had something to do with her brother P.J.’s death. She said she did
not take steps to administer Decedent’s estate after he died because she did not understand
the process and there was nothing left to administer. She said she believed that Rooter was
worth nothing at the time of Decedent’s death because she had seen “how bad it went down,”
and the tools were all stolen after Decedent died. According to Amy, the Rooter business
started “slowly going down” in 2007 after P.J. died, and by 2009, Decedent “really went
down,” being unmotivated, unable to get out of bed sometimes, and “a lot of times” very
depressed. Amy claimed that Decedent had run the business down with his pill habit, his
gambling, and his unstable mental health. Amy said she did not know how much business
Rooter was doing in 2009, but, she said that her understanding was that Frank was doing
most of the work.
Frank Wray also testified. He admitted that the Rooter box truck was located behind
his house. He testified that it was full of what he considered to be junk. Frank testified that
he did not know what happened to the rest of Rooter’s tools and equipment, other than that
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it was stolen. Frank testified that the “box” from the second box truck was given to him, and
he gave it away. Frank claimed that he was currently doing business as “All-in-One
Plumbing,” but he admitted to using the same four telephone numbers that were listed on the
side of the Rooter box truck. He also acknowledged that Rooter had advertised with a logo
that read, “The All-in-1 Plumber,” and that he was using a similar slogan, “All-in-One
Plumbing.” However, Frank claimed that he had used that logo even before Decedent’s
death. He identified old invoices from work he had done in the past that displayed the All-in-
One slogan.
Frank testified that Decedent did have a fiberoptic camera around the time of his
death. Frank testified that he placed a padlock on the Rooter box truck on the day that
Decedent died, but that someone had removed the lock when he returned to the house a
couple of days later, and some of the tools were missing. Frank testified that he and Amy
reported the thefts that occurred before the funeral, but that he was unable to obtain any
reports to prove that they did in fact file reports. Frank denied having possession of any of
Rooter’s tools, and he said that he had never used the Rooter box truck.
Frank testified that he began working for Rooter full-time in February 2008. He
testified that the pace of Rooter’s work between February 2008 and the time of Decedent’s
death in October 2009 had “slowed way down.” He said he “went from working all the time
to he'll call me when he needs me.” He suggested that the decline was due to Decedent’s
mental health, his use of pills and his gambling habit. Frank said that most of the time,
Decedent was not there to run the business, and he suggested that the Rooter business was
not on Decedent’s mind.
After the four-day trial concluded, the trial court entered a thirteen page memorandum
containing lengthy and detailed findings of fact and conclusions of law. The order contains
the following findings that are directly relevant to the issues on appeal:
At the time of [Decedent’s] death, he owned real property, personal
property and a plumbing business known as Rooter Drain & Plumbing
(Rooter). The assets of Rooter were located on the property at 4395 Scott
Hollow Road [the marital residence].
....
Plaintiff submits the following issues to the Court:
(1) Are the business assets of Rooter subject to administration of the estate
of [Decedent]? If so,
(2) Were the assets converted by Defendants? If so,
(3) What is the value of the assets? and
(4) Is the estate entitled to a judgment for the value of the business and its
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assets?
....
Although the value of certain personal property is no longer pursued by
Plaintiffs, the Court finds that testimony concerning the location and
disposition of certain property is relevant to show conduct and state of mind
of Defendants surrounding the death of [Decedent], conduct and state of mind
of Defendants surrounding the aftermath of [Decedent]’s death and credibility
of Defendants as to disposition of personal property and related issues in the
trial.
....
It is Defendants’ position that . . . all business assets were stolen from
the property through no fault of [Amy] or [Frank], and moreover, that the
business had no value at the time of [Decedent]’s death.
....
Ms. Andrews testified that she was always familiar with how the
business was run. She described his business as “busy” with employees
ranging over the years from one to three. Ms. Andrews stated that [Decedent]
advertised in the white pages of the local telephone book as well as the area
telephone book, through business cards, a web page and by word of mouth.
She testified that the business logo, “The All in 1 Plumber,” was used by
[Decedent] from the inception of the business.
Ms. Andrews testified that the assets of Rooter consisted of box trucks
with the business information and logo printed on them, a truck for personal
use as well as for business, two (2) shops situated on the same property as
[Decedent]’s residence, various tools and equipment used in the plumbing
business, including a $8,000 camera, hand tools, electric tools, saws, drills,
generators, sump pumps and shop vacs. Andrews agreed that the last time she
had seen this property [w]as prior to June 2009 when [Decedent] moved back
into the residence.
Greg Andrews, Ms. Andrews’ husband since 2004, also described his
relationship with [Decedent] as very close. He testified that the shops were
covered with tools; the business was well tooled and well equipped; at one
time [Decedent] had two box trucks and one at death; his van was fully
stocked and [Decedent] had more tools than anyone else he’d seen.
Three employees of [Decedent] testified: James Whitfield, Lance
Carpenter and Chaney Turnbow. All three testified that the business was busy
but had slowed down in 2009. All of them agreed that, except for very rare
occasions, they were paid by [Decedent] in cash and that no 1099s were ever
issued.
Mr. Whitfield testified as follows: He was now 37 years old and had
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known [Decedent] since he was 13. In 2004 and 2005 the business was busy
and was using two box trucks. [Decedent] always had cash on him, even up
to $10,000 on one occasion.
Mr. Carpenter testified that he was now 31 years old and had known
[Decedent] for five to seven years. He worked for him from 2005 until “a little
before his death” in 2009. He worked full-time and drew a weekly cash salary
of $500. He described the business as busy, beginning at 7:30 a.m., with 10
to 15 daily calls over four counties. The business had slowed down a little
right before he left, but that [Decedent] had a profitable business. . . .
Mr. Turnbow testified as follows: He worked part-time for [Decedent]
and worked off and on in 2009. [Decedent] had a lot of plumbing equipment
and hand tools and he was busy – “always working.” He had two box trucks
at the time of his death. He later saw one of the boxes (removed from the
truck) in Mt. Pleasant.
....
What happened to the business assets of Rooter? [Frank] testified
that the box truck is now at his house and that Ms. Andrews is welcome to
come and get it.
[Amy] testified that she closed the business accounts with a balance of
$200 to $300. She testified there were no other assets. She stated that in 2009
[Decedent] was suffering from mental problems and overdosing with pain
killers. [Amy] testified that [Frank] was running the business. [Frank] agreed
with this testimony. The Court has considerable difficulty with the credibility
of both [Amy] and [Frank].
It is undisputed that [Decedent] was taking medication and was
probably overmedicated. It is also undisputed that [Decedent] was a high
rolling gambler in Tunica and Metropolis. It is also undisputed that
[Decedent] was a very hard worker and provided a very good living for his
family.
Both [Amy] and [Frank] testified that personal property was being
removed from the property as soon as two days after the death of [Decedent].
They testified that these thefts were reported to law enforcement but that for
some reason unknown to them, no reports are on file with the sheriff’s
department. This is difficult for the Court to reconcile.
[Frank] insisted that he padlocked the box trailer immediately after the
death of [Decedent] when law enforcement was on the scene doing their
investigation. He stated that he did not have a key to the padlock. [Frank]
testified that not long afterwards the padlock was broken and things were
stolen.
[Frank] inferred that someone might have even had a key to the
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padlock, making it look like a theft. He denies taking any plumbing tools, and
testified that the box removed from one of the trucks was given to him. [Frank]
did not say specifically who gave him the box. He stated that he later gave the
box away.
It is undisputed that [Frank] and [Amy] removed numerous personal
items from the property right after the death of [Decedent]. These include 4-
wheelers, jet skis, a fishing boat, washer and dryer in the shed, and personal
items of [Amy] and her children. On February 20, 2010, [Amy] rented a U-
Haul to remove the rem[a]inder of the property. She testified that the house
had been ransacked, with locks busted off the door frames.
The Court has difficulty with the credibility of [Frank] in describing the
personal property he said belonged to him, and does not believe him at all
relative to [Decedent]’s fishing boat, described to the Court by Ms. Andrews
as [Decedent]’s pride and joy. The Court has credibility [sic] with the
testimony of [Amy] relative to the thefts of personal property of Jacob, herself
and her children, as well as the condition of the personal property and its
disposition during the marriage, prior to and after [Decedent]’s death.
The Court flat out does not believe [Frank]’s testimony relative to a
lawnmower . . . . While this is not property of the estate of [Decedent], the
Court finds that the actions and testimony of [Frank] surrounding this property
speak volumes about his credibility.
Also the Court flat out does not believe the testimony of [Frank]
relative to [another matter]. . . . While this incident is not relevant to the issues
in the case, the Court finds that it is relative to [Frank]’s credibility. The Court
finds that [Frank]’s recollection of most things, excluding negative issues
surrounding [Decedent]’s personal and business life, is dim. The same is true
for [Amy]. When her recollection became dim, [Amy] would testify
repeatedly, “I trusted him.” These are the same two people who have held
[Decedent] responsible for the death of their brother, P.J. Wray, since October
29, 2007.
The Court finds that [Amy] and [Frank] removed all personal property,
including business assets, which they considered valuable, right after
[Decedent]’s death, that no reports of theft were filed immediately after the
death of [Decedent]. The Court finds that they are not telling the truth relative
to securing the property and the thefts supposedly occurring immediately after
[Decedent]’s death. Any later reports of theft were filed to cover their actions.
....
B. Business assets and goodwill are subject to administration by
the personal representative: The Court finds pursuant to Tenn. Code Ann.
§ 31-2-103, upon qualifying as Administratrix, the personal property of
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[Decedent] was vested in her for the purpose of first paying administrative
expenses, taxes and funeral expenses, and then for the payment of all other
debts and obligations of [Decedent]. After payment of debts and charges
against the estate, Ms. Andrews was obligated to then distribute the personal
property in accordance with the laws of intestate succession. Of course, [Amy]
would be entitled to 50% and Jacob, 50%.
Ms. Andrews testified that she, with the help of her mother, paid for the
funeral. Valid claims against the estate include: $1,500 filed by Jennifer B[.]
for pre-paid plumbing services not performed; $272.25 by Amber Electric and
Plumbing Supply; $663.88 by Capital One; and two claims filed by HSBC
Bank c/o DCM Services, one for $969.08 and another for $3,651.09. These
total $7,056.30.
The Court finds that at the time of [Decedent]’s death he owned
plumbing supplies, tools and equipment as described by Ms. Andrews. After
his death, [Amy] transferred all telephone numbers of the business in four
counties to the wife of [Frank] in exchange for her paying the outstanding bill
for the phones. After his death, [Frank] continued the business just like it was
his own with the same telephone numbers. The logo he uses for the business
is “The All in 1 Plumber.” [Frank] testified that initially he and [Decedent]
came up with the logo, “The All in 1 Plumber.” The Court does not believe
[Frank]. The logo used by [Frank] is deceptively similar to the logo used by
[Decedent] in operating Rooter since 2001.
[Frank], with the assistance of [Amy] in getting the telephone numbers
in his possession, continued to use the same telephone numbers and essentially
the same logo. This tells the Court that Defendants believed Rooter had some
value at [Decedent]’s death.
The Court finds that Rooter, owned and operated by [Decedent] since
2001, was a valuable business for a number of years. It continued to have
value at the time of [Decedent]’s death.
The Court finds that the business and its assets are subject to
administration.
C. Defendants are guilty of conversion of the business property and
assets and are jointly and severally liable to the estate:
....
The Court finds that both Defendants took possession of all business
assets of Rooter and converted the assets to their own personal use, with no
accounting whatsoever for the assets to the Administratrix.
D. Value of the business and assets of Rooter: Ms. Andrews
testified that the value of the business and assets was between $100,000 to
$150,000. [Amy] claims that the business had no value. . . .
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Trial Exhibit No. 5 is the only income tax return in the record and the
best documentary evidence reflecting the gross receipts of the business,
depreciation and expenses. At [Decedent]’s death, the income tax return for
2008 had not been filed. Trial Exhibit No. 11 is an Application for automatic
extension of time to file the 2008 return. Attached to the application are
[Decedent]’s figures showing gross receipts of $180,969.88 for 2008, as well
as costs of advertising and expenses for phones, vehicles, utilities, materials,
insurance, etc. Trial Exhibit No. 43 reflects gross receipts of the business for
the first three quarters of 2009 to be $47,291.57. No expenses are listed. Ms.
Andrews testified that this was the best information she could find in gathering
records about the business. She testified that [Amy] provided absolutely no
assistance with anything concerning the estate.
The 2007 income tax return reflects gross receipts of $186,233.
Depreciation was listed at $1,757. Attachments to Form 4562 reflect assets
being depreciated and placed into service from 2003 to 2005. The cost of each
asset is reflected as well as prior depreciation for those years ($25,898, $7,165
and $373 respectively). Total cost of these assets is $38,179. Added to this
is the cost of the shops put into service in 2005 of $60,000. Prior depreciation
for the shops totals $3,012.
Figures attached to the 2008 extension show some $5,200 difference in
gross receipts from 2007. Vehicle expenses and advertising expenses appear
to be greater for 2008 than in 2007, while the remaining expenses for the two
years are similar.
While the Court recognizes that the gross receipts for 2009 may not be
accurate, Ms. Andrews’ total of $47,292 is approximately 35% less than three
quarters of gross receipts for 2008 (the Court divided $180,970 by 4 quarters
($45,242.50) and then multiplied this by three quarters ($135,727.50),
compared to $47,292 for the first three quarters of 2009[)].5
Pursuant to Tenn. R. Evid. 701(b) Ms. Andrews, as Administratrix of
the estate, is competent to testify as to the value of the personal property.
Admittedly she had not viewed the business assets since right before June of
2009.
In determining the value of the assets, the Court is considering the
5
On appeal, neither party mentions this calculation by the trial court. We note that the calculation
is inaccurate to the extent that it states that the 2009 total for three quarters ($47,292) was “approximately
35% less than” the 2008 total for three quarters ($135,727.50). In fact, the 2009 total of $47,292 for three
quarters was only 35% of the total for three quarters of 2008, meaning that it was 65% less than 2008. In
any event, the trial court noted that Mrs. Andrews’ calculation of the income for 2009 was likely inaccurate
due to the lack of records, and this calculation by the trial court was not mentioned again during its findings.
Because the parties do not mention it on appeal, we will not discuss the issue further.
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testimony of the parties and prior employees of [Decedent], as well as the
attachments to Depreciation Schedules of the 2008 [sic] income tax return of
the business reflecting the cost of various machines, [the] computer, vehicles
and other plumbing-related equipment put into operation or otherwise used in
the business from 2003 to 2005. The cost totals some $38,000. The proof
showed that immediately after [Decedent]’s death, two vehicles used in the
business; a Ford truck and a Dodge Durango, were repossessed. The Court
finds the value of the business assets to be $25,000 at the time of [Decedent]’s
death.
In considering the value of goodwill of the business, the Court is
primarily looking to the testimony and actions of [Frank], as well as the
testimony of Ms. Andrews and the prior employees of [Decedent]. The Court
finds the testimony of each of these individuals to be far more credible than
that of [Frank]. Every witness to the case, excluding [Frank] and [Amy],
described the business as a busy one. The 2007 income tax return and the
attachments to the Application for extension for 2008, confirm this. The Court
finds that Ms. Andrews was handicapped in gathering records and information
for the first three quarters of 2009. To a great extent, the Court holds [Amy]
responsible for this. After all, [Amy] is insistent that she was a full and equal
partner of the business and its operation. She absolutely refused to cooperate
with Ms. Andrews.
The Court does find that the business was slowing down in 2009.
However, immediately after [Decedent]’s death, [Frank], with the assistance
of [Amy], took possession of all assets, using all existing business telephone
numbers of Rooter in four counties and operating his plumbing business with
a logo deceptively similar to that of Rooter. The Court finds the value of the
goodwill of the business to be $50,000.
The estate is entitled to a judgment of $75,000 against the Defendants,
jointly and severally. The attorneys may agree on the impact of the judgment,
if any, as to [Amy]’s rights under intestate distribution, after payment of all
debts and charges against the estate. If the attorneys cannot agree, they may
submit this issue to the Court.6
The trial court’s memorandum was incorporated into a judgment filed on June 22, 2012,
which awarded a $75,000 judgment to Mrs. Andrews as Administratrix of Decedent’s estate.
6
The trial court made several other direct findings regarding Amy's credibility. With regard to
several specific instances of Amy's testimony, the court stated that it had "difficulty with the credibility of
[Amy]," had "difficulty with [Amy's] testimony," found that she was "greatly stretching the truth," and, quite
frankly, the order stated, "The Court does not believe [Amy]."
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The order stated, “All issues as to whether or not Defendant, [Amy], is entitled to distribution
from the estate of [Decedent] are reserved for adjudication in the estate proceeding pending
in Maury County Chancery Court.” Defendants filed a motion for new trial and to alter or
amend, which was denied. Defendants then filed a notice of appeal to this Court.
II. I SSUES P RESENTED
Defendants present the following issues for review on appeal:
1. Whether the trial court erred in awarding $25,000 in damages for the value of the
business equipment of Rooter Drain and Plumbing that was allegedly converted by
Defendants;
2. Whether the trial court erred in awarding $50,000 in damages for the value of the
goodwill of Rooter Drain and Plumbing that was allegedly converted by Defendants;
and
3. Whether Amy is entitled a reduction in the damage award against her, in the amount
of fifty percent, because she would have owned one-half of the property allegedly
converted under the laws of intestate succession.
For the following reasons, we affirm the decision of the circuit court in all respects.
III. S TANDARD OF R EVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact with
greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005)
(citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The
Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)).
When the resolution of the issues in a case depends upon the truthfulness of witnesses, the
fact-finder, 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. Mach. Sales
Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002).
“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. We review the amount of damages awarded by the trial court as a question of fact,
subject to the standard of review set forth in Rule 13(d). Cofer v. Harris, No. E2011-00242-
COA-R3-CV, 2012 WL 112581, at *8 (Tenn. Ct. App. Jan. 12, 2012) (citing Beaty v.
McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998)); Moody v. Lea, 83 S.W.3d 745, 751
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(Tenn. Ct. App. 2001). We review a trial court’s conclusions of law under a de novo standard
upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788
S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. D ISCUSSION
A. Business Assets
On appeal, Defendants argue that Mrs. Andrews failed to present sufficient evidence
regarding the value of Rooter’s tangible business assets that would enable the trial court to
make a fair and reasonable assessment of damages. Defendants basically argue that the
amount of damages was speculative and that the proof presented “[did] not provide a measure
of reasonable certainty” as to the value of Rooter’s tangible assets. They concede that Mrs.
Andrews was competent to testify as to the value of Rooter’s assets, as Administratrix of
Decedent’s estate.7 However, they claim that the trial court should have given no weight to
her opinion. Defendants claim that Mrs. Andrews failed to prove exactly what business
property was owned by Decedent at his death, and they note that there was no itemized list
of business assets presented to the trial court. They also claim that it was error for the trial
court to rely upon Decedent’s tax returns to establish the value of the equipment when Mrs.
Andrews acknowledged that she believed them to be inaccurate in some respects. Defendants
claim that the only value that was proven with reasonable certainty was that of the camera,
which Mrs. Andrews valued at around $8,000 when it was new.
“The party seeking damages has the burden of proving them.” Overstreet v. Shoney's,
Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999). However, there is a distinction between the
measure of proof necessary to prove the existence of damages and that necessary to prove the
amount of damages. Discover Bank v. Morgan, 363 S.W.3d 479, 496 (Tenn. 2012). “The
existence of damages cannot be uncertain, speculative, or remote.” Hannan v. Alltel
Publishing Co., 270 S.W.3d 1, 10 (Tenn. 2008) (emphasis in Hannan) (citing Overstreet, 4
S.W.3d at 703; Cummins v. Brodie, 667 S.W.2d 759, 765 (Tenn. Ct. App. 1983)). “The
7
See In re Estate of Emberton, No. M2010-01125-COA-R3-CV, 2010 WL 5341916, at *4 (Tenn.
Ct. App. Dec. 20, 2010) (“In Tennessee, a property owner may offer opinion testimony on the value of his
or her property without showing any special qualifications. Tenn. R. Evid. 701(b). This Court has
previously opined that, ‘the conservator of an absent or deceased party's property stands in the shoes of the
absent or deceased party and, therefore, may testify with regard to the value of the absent or deceased party's
property under Tenn. R. Evid. 701(b).’ Levine v. March, 266 S.W.3d 426, 440 n. 15 (Tenn. Ct. App. 2007)
(citations omitted). Likewise, Plaintiffs, as co-Administrators of the Decedent's Estate, took legal title of the
Decedent’s personal property in trust for the purpose of administration of the Estate; therefore, they were
competent to testify as to the value of the personal property pursuant to Tenn. R. Evid. 701(b).”)
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amount of damages may be uncertain, however, if the plaintiff lays a sufficient foundation to
allow the trier of fact to make a fair and reasonable assessment of damages.” Id. (emphasis
in Hannan) (citing Overstreet, 4 S.W.3d at 703; Western Sizzlin, Inc. v. Harris, 741 S.W.2d
334, 336 (Tenn. Ct. App. 1987); Cummins, 667 S.W.2d at 765). “Otherwise, in certain
instances, the courts would be powerless to help some wronged parties.” Cummins, 667
S.W.2d at 765.
Proof as to the amount of damages “need not be exact or mathematically precise.”
Overstreet, 4 S.W.3d at 703. “Rather, the proof must be as certain as the nature of the case
permits and must enable the trier of fact to make a fair and reasonable assessment of the
damages.” Id. “When there is substantial evidence in the record and reasonable inferences
may be drawn from that evidence mathematical certainty is not required.” Cummins, 667
S.W.3d at 765. “Determining the amount of damages is not controlled by fixed rules of law
or mathematical formulas, but is instead left to the sound discretion of the trier of fact.
Overstreet, 4 S.W.3d at 703; see also BancorpSouth Bank, Inc. v. Hatchel, 223 S.W.3d 223,
230 (Tenn. Ct. App. 2006) (“the evidence upon which a party relies to prove damages must
be sufficiently certain to enable the trier of fact, using its discretion, to make a fair and
reasonable assessment of damages”).
In the case at bar, the trial court found that Decedent owned the Rooter plumbing
business at the time of his death and that Rooter’s assets were located on the property at the
marital home. The court noted Mrs. Andrews’ testimony that “the assets of Rooter consisted
of box trucks with the business information and logo printed on them, a truck for personal use
as well as for business, two (2) shops situated on the same property as [Decedent]'s residence,
various tools and equipment used in the plumbing business, including a $8,000 camera, hand
tools, electric tools, saws, drills, generators, sump pumps and shop vacs.” The court then
found that “at the time of [Decedent]’s death he owned plumbing supplies, tools and
equipment as described by Ms. Andrews.” The court found that “[Amy] and [Frank] removed
all personal property, including business assets, which they considered valuable, right after
[Decedent]’s death,” and “they [were] not telling the truth relative to securing the property and
the thefts supposedly occurring immediately after [Decedent]’s death.”8 The court noted that
the cost of Rooter’s assets that were listed on the depreciation worksheet attached to
Decedent’s 2007 income tax return totaled $38,179. The trial court’s order then stated,
8
We note that Defendants also argue that the trial court’s valuation of Rooter's business assets was
erroneous because Amy and Frank testified that there were numerous thefts after Decedent died, and Amy
claimed that Decedent was pawning “things” before he died. The trial court simply did not believe this
testimony of Amy or Frank, and there is nothing in the record that would cause us to second-guess the trial
court's assessment of credibility. Therefore, we find that the cited testimony does not undermine the trial
court’s valuation of the business assets.
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In determining the value of the assets, the Court is considering the testimony
of the parties and prior employees of [Decedent], as well as the attachments to
Depreciation Schedules of the 2008 [sic] income tax return of the business
reflecting the cost of various machines, computer, vehicles and other plumbing-
related equipment put into operation or otherwise used in the business from
2003 to 2005. The cost totals some $38,000. The proof showed that
immediately after [Decedent]’s death, two vehicles used in the business; a Ford
truck and a Dodge Durango, were repossessed. The Court finds the value of the
business assets to be $25,000 at the time of [Decedent]’s death.
Considering the unique circumstances of this case, we find that Mrs. Andrews offered the best
evidence available to her as to the value of Rooter’s business assets. Obviously there was no
itemized list of assets, aside from those listed on the depreciation schedule of Decedent’s tax
return, which Mrs. Andrews submitted into evidence and the trial court clearly considered.9
After reviewing every source of information Mrs. Andrews could locate, she gave her best
estimate as to the value of Rooter’s tools and equipment. She testified that she believed that
Decedent had nearly $200,000 invested in tools and equipment. Clearly, the trial court did
not accept Mrs. Andrews’ estimation outright, but awarded only $25,000 for the value of
Rooter’s business assets at the time of Decedent’s death. The only alternative measure of
damages suggested by Defendants on appeal is $8,000, representing the value of a single
camera, which is clearly unreasonable under the facts of this case. Under the circumstances
presented, which were brought about by the conduct of Defendants, we find that Mrs.
Andrews submitted proof that was “as certain as the nature of the case permit[ted],” and that
the evidence was sufficient to “enable the trier of fact to make a fair and reasonable
assessment of the damages.” See Overstreet, 4 S.W.3d at 703. It was simply impossible to
prove damages in this case to a mathematical certainty, due to Defendants’ conduct, but that
fact does not preclude Mrs. Andrews from recovering damages. See Cummins, 667 S.W.3d
at 765 (“When there is substantial evidence in the record and reasonable inferences may be
drawn from that evidence mathematical certainty is not required.”) We find no error in the
trial court’s valuation of Rooter’s business assets at $25,000.
9
The depreciation schedule only included assets acquired between 2003 and 2005. It listed five
rooter machines with a total cost of $5034, a $1277 computer, an $8300 camera monitor, a $430 Dewalt kit,
a $526 concrete saw, a $316 chainsaw, “roll ramps” that cost $113, a $369 truck shelf, a $450 water pump,
a $1250 cable machine, and four vehicles: a 1998 van that cost $4961, a 1999 Ford van that cost $9126, a
1997 Dodge van that cost $2187, and a 1997 Ford truck that cost $3840.
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B. Goodwill
Next, Defendants challenge the trial court’s decision to value the goodwill of the
Rooter plumbing business at $50,000. First of all, Defendants argue that the trial court erred
in making any award at all for the value of the goodwill of the business because, Defendants
argue, “the estate cannot own the goodwill” in the form of a separate property interest. As
support for its argument, Defendants point to several divorce cases in which courts have held
that the goodwill of a business is not a separate property interest of a type that can be included
as part of the marital estate to be divided between spouses. See, e.g., Hazard v. Hazard, 833
S.W.2d 911 (Tenn. Ct. App. 1991); Smith v. Smith, 709 S.W.2d 588 (Tenn. Ct. App. 1985).
Defendants argue that “this same principle should be applied in the valuation of a plumbing
business in the present case.”
Defendants do not cite to any location in the record to suggest that they raised this
argument in the trial court. From our recollection of the lengthy trial transcript, Defendants
disputed the value of the goodwill of the business, but they did not suggest that goodwill was
not an appropriate element of damages. In any event, we find their argument on appeal to be
unconvincing. “‘Good will is a property right which may be sold.’” T.H. Engineering &
Mfg., Inc. v. Mussard, No. E2001-02406-COA-R3-CV, 2002 WL 1034029, at *2 (Tenn. Ct.
App. May 23, 2002) (quoting Young v. Cooper, 30 Tenn.App. 55, 73, 203 S.W.2d 376, 384
(Tenn. Ct. App. 1947)). In Hogan v. Coyne Intern. Enterprises Corp., 996 S.W.2d 195, 198
(Tenn. Ct. App. 1998), for example, the parties executed a series of agreements whereby one
company purchased the assets of another company, including its inventory, trade name,
customer contracts, and goodwill. Goodwill is a type of property interest that “is transferable
and may be bought and sold in connection with the sale of a business; however, it cannot be
transferred apart from the business with which it is connected.” 38 Am. Jur. 2d Good Will §
6. The reason for the courts’ reluctance at attempting to equitably divide the goodwill of a
business in the process of dividing a marital estate was explained in Hazard, 833 S.W.2d at
915 (quoting Smith, 709 S.W.2d at 591-92):
[Goodwill] cannot be separately sold or pledged by the individual owners. . . .
* * *
There is a disturbing inequity in compelling a professional practitioner to pay
a spouse a share of intangible assets at a judicially determined value that could
not be realized by a sale or another method of liquidating value.
In McKee v. McKee, No. M2009-01502-COA-R3-CV, 2010 WL 3245246, at *3 (Tenn. Ct.
App. Aug. 17, 2010), this Court noted the different methods of valuing a professional business
in a buy/sell setting versus in a divorce case when dividing the marital estate. “[P]ersonal
goodwill cannot be a component in the valuation of a professional practice in an equitable
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distribution of a marital estate.” Id. at *5. However, we reject Defendants’ suggestion that
goodwill is not a property interest under any circumstance and that it “does not have any
value” to Decedent’s estate under the circumstances of this case. Unlike the divorce cases
cited by Defendants, here, there is no “disturbing inequity” in compelling Defendants to pay
the estate for the full value of the Rooter business, as a going concern, including its goodwill.
Obviously, the value of the Rooter business at the time of Decedent’s death was not limited
to the value of the tools and equipment it owned. Rooter had value over and above that
amount because of its name, its reputation, its established presence in the plumbing market
in four counties, its established customers, and its former success over the past eight years.
Young, 30 Tenn.App. at 73, 203 S.W.2d at 384 (describing the factors involved in the
goodwill of a business). The value of Rooter’s goodwill is perhaps best illustrated by the
actions of Defendants themselves. Defendants not only took possession of Rooter’s tools,
equipment, and box truck, but they also continued to operate the plumbing business using the
same four telephone numbers, the same advertising methods, and practically the same slogan
and logo, in a clear effort to take advantage of Rooter’s name and reputation. As Mrs.
Andrews noted during her testimony, anyone who saw the Rooter advertisement and called
the Rooter telephone number would believe that they were dealing with Decedent’s
established company. Frank essentially “stepped into the shoes” of Decedent and continued
to operate the Rooter business as his own. Defendants benefitted from their wrongful
“takeover” of a profitable business, and compensating Decedent’s estate for the value of the
tools alone would not provide an adequate remedy under the circumstances. Therefore, we
find that the trial court appropriately considered the value of the goodwill of the Rooter
plumbing company when awarding damages to Decedent’s estate.
Now, we turn to the trial court’s valuation of Rooter’s goodwill at $50,000.
Defendants contend that Rooter was worth nothing because its business was declining in
2009, and Decedent was gambling, taking pills, and a suspect in a murder investigation. We
again find many of Defendants’ arguments unconvincing because they are based upon the
testimony of Frank and Amy, which the trial court expressly discredited.10 We recognize that
it is undisputed that Rooter’s business was slowing down somewhat in 2009, but the trial court
10
As noted above, the trial court’s order stated:
. . . [Amy] stated that in 2009 [Decedent] was suffering from mental problems and
overdosing with pain killers. [Amy] testified that [Frank] was running the business. [Frank]
agreed with this testimony. The Court has considerable difficulty with the credibility of
both [Amy] and [Frank].
It is undisputed that [Decedent] was taking medication and was probably
overmedicated. It is also undisputed that [Decedent] was a high rolling gambler in Tunica
and Metropolis. It is also undisputed that [Decedent] was a very hard worker and provided
a very good living for his family.
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expressly took note of this fact when valuing Rooter’s goodwill. The trial court also took into
account the figures listed on Decedent’s income tax return and other tax related documents,
as well as the testimony of various witnesses whom the trial court found to be “far more
credible” than Defendants. The trial court’s findings bear repeating here:
[Frank], with the assistance of [Amy] in getting the telephone numbers
in his possession, continued to use the same telephone numbers and essentially
the same logo. This tells the Court that Defendants believed Rooter had some
value at [Decedent]’s death.
The Court finds that Rooter, owned and operated by [Decedent] since
2001, was a valuable business for a number of years. It continued to have value
at the time of [Decedent]’s death.
....
D. Value of the business and assets of Rooter: Ms. Andrews testified
that the value of the business and assets was between $100,000 to $150,000.
[Amy] claims that the business had no value. . . .
Trial Exhibit No. 5 is the only income tax return in the record and the
best documentary evidence reflecting the gross receipts of the business,
depreciation and expenses. At [Decedent]’s death, the income tax return for
2008 had not been filed. Trial Exhibit No. 11 is an Application for automatic
extension of time to file the 2008 return. Attached to the application are
[Decedent]’s figures showing gross receipts of $180,969.88 for 2008, as well
as costs of advertising and expenses for phones, vehicles, utilities, materials,
insurance, etc. Trial Exhibit No. 43 reflects gross receipts of the business for
the first three quarters of 2009 to be $47,291.57. No expenses are listed. Ms.
Andrews testified that this was the best information she could find in gathering
records about the business. She testified that [Amy] provided absolutely no
assistance with anything concerning the estate.
The 2007 income tax return reflects gross receipts of $186,233. . . .
Figures attached to the 2008 extension show some $5,200 difference in
gross receipts from 2007. Vehicle expenses and advertising expenses appear
to be greater for 2008 than in 2007, while the remaining expenses for the two
years are similar.
While the Court recognizes that the gross receipts for 2009 may not be
accurate, Ms. Andrews’ total of $47,292 is approximately 35% less than three
quarters of gross receipts for 2008 (the Court divided $180,970 by 4 quarters
($45,242.50) and then multiplied this by three quarters ($135,727.50),
compared to $47,292 for the first three quarters of 2009.
....
In considering the value of goodwill of the business, the Court is
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primarily looking to the testimony and actions of [Frank], as well as the
testimony of Ms. Andrews and the prior employees of [Decedent]. The Court
finds the testimony of each of these individuals to be far more credible than that
of [Frank]. Every witness to the case, excluding [Frank] and [Amy], described
the business as a busy one. The 2007 income tax return and the attachments to
the Application for extension for 2008, confirm this. The Court finds that Ms.
Andrews was handicapped in gathering records and information for the first
three quarters of 2009. To a great extent, the Court holds [Amy] responsible
for this. After all, [Amy] is insistent that she was a full and equal partner of the
business and its operation. She absolutely refused to cooperate with Ms.
Andrews.
The Court does find that the business was slowing down in 2009.
However, immediately after [Decedent]’s death, [Frank], with the assistance
[Amy], took possession of all assets, using all existing business telephone
numbers of Rooter in four counties and operating his plumbing business with
a logo deceptively similar to that of Rooter. The Court finds the value of the
goodwill of the business to be $50,000.
We cannot say that the evidence preponderates against the trial court’s award of damages.
Rooter was a profitable business with proven success over the past eight years. It consistently
incurred extraordinary advertising expenses during that time in order to establish a presence
in the plumbing market in at least four counties. According to the tax documents, Decedent
spent $37,793 on advertising for Rooter in 2007 and $51,492 in 2008. Mrs. Andrews testified
that Decedent also “built his business up” by “years and years of repeat calls and establishing
rapport with his clients and being referred by them to other people.” Practically every
witness, except Defendants, described the business as busy. Having reviewed voluminous
documents pertaining to the company, Mrs. Andrews estimated that a willing purchaser would
have paid between $100,000 and $150,000 for the assets and goodwill of the business.11
Rooter had gross receipts of $186,233 in 2007, $180,969 in 2008, and at least $47,292 directly
traceable to checks written by customers for the first three quarters of 2009. Defendants claim
that Rooter was worth “nothing,” yet they chose to continue operating the business using
Rooter’s name and telephone numbers after Decedent died. Defendants certainly would not
have continued to advertise Rooter’s services if they believed that its reputation was worth
nothing. “[I]n a bench trial, ‘we review the amount of damages awarded by the trial court
with the presumption that it is correct, and we will alter the amount of damages only when the
trial court has adopted the wrong measure of damages or when the evidence preponderates
against the amount of damages awarded.’” Moody, 83 S.W.3d at 751. Such is not the case
11
Neither party sought to introduce expert testimony regarding the value of the business, and neither
party argued on appeal that expert testimony was necessary.
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here. The trial court weighed and evaluated all of the relevant evidence regarding the value
of Rooter and adopted a valuation that was within the range of values suggested by the parties.
The evidence does not preponderate against the trial court’s award of $50,000 for the goodwill
of Rooter, in connection with its overall valuation of Rooter at $75,000.
C. Reduction based on Intestate Share
In their final issue on appeal, Defendants argue that the trial court should have reduced
the $75,000 judgment against Defendants by one-half because Amy would have been entitled
to one-half of Decedent’s property by virtue of the fact that she and Jacob are Decedent’s
heirs under the laws of intestate succession. The trial court’s memorandum stated, “The
attorneys may agree on the impact of the [$75,000] judgment, if any, as to [Amy]'s rights
under intestate distribution, after payment of all debts and charges against the estate.” In a
subsequent order, the trial court declined to reduce the damage award against Amy, stating
that “[a]ll issues as to whether or not Defendant, [Amy], is entitled to distribution from the
estate of [Decedent] are reserved for adjudication in the estate proceeding pending in Maury
County Chancery Court.” We find no error in the trial court’s decision. Essentially, Amy
asks this Court to conclusively determine that she is entitled to receive at least $37,500 (one
half of $75,000) from Decedent’s estate and to deduct that amount from the judgment she
owes the estate. However, the estate proceeding was not before the trial court; it was pending
before the chancery court. Several creditors had filed claims in the chancery court, and those
claims will have to be resolved, in addition to other matters, before Amy is entitled to receive
anything from Decedent’s estate. We therefore find that it was appropriate for the circuit
court to decline to reduce the damage award against Amy, and we affirm its decision to defer
any adjudication regarding Amy’s share of the estate to the chancery court.
V. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court and remand
for further proceedings. Costs of this appeal are taxed to the appellants, Amy Sprinkle Wray
and Frank Wray, and their surety, for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P. J., W.S.
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