author: ADOLPHO A. BIRCH, JR., J.,

text:
    STATE of Tennessee v. Vincent JACKSON.
    Supreme Court of Tennessee, at Jackson.
    April 15, 2005 Session Heard at Pulaski.

    Sept. 29, 2005.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel R. Woody, Assistant District Attorney General, for the appellant, State of Tennessee.
    Robert L. Parris, Memphis, Tennessee (at post-trial hearing and on appeal); Mike Roberts, Memphis, Tennessee (at post-trial hearing); and Betty Thomas, Assistant Public Defender (at trial), for the appellee, Vincent Jackson.

      . This case was heard as part of the April 15, 2005, S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project in Pulaski, Giles County, Tennessee.

   Opinion

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted the State’s application to appeal in this case pursuant to Tennessee Rule of Appellate Procedure 11 to determine, in light of the 1989 Revision of the Criminal Code, whether the long-honored rule that a homicide is presumptively second degree murder should be abandoned. Because our current statutory scheme requires that each element of the charged offense be proved beyond a reasonable doubt, we hold that the second degree murder presumption is now obsolete. Additionally, we have addressed the sufficiency of the evidence without engaging the presumption, and we conclude that the evidence presented is insufficient to convict the defendant of first degree murder (premeditated) beyond a reasonable doubt. The evidence is, however, sufficient to support the conclusion that the defendant knowingly killed the victim and, thereby, committed second degree murder. Accordingly, we affirm the judgment of conviction entered by the Court of Criminal Appeals and remand the case to the trial court for a new sentencing hearing.

I. Facts and Procedural History

In 1996, a Shelby County Grand Jury indicted the defendant, Vincent Jackson, on one count of first degree murder (premeditated) and one count of first degree murder (felony-robbery) in the shooting death of the victim, Ernest Harris. Trial of the cause commenced in March 1998, and the following salient evidence was adduced:

Responding to a dispatch regarding a suspicious vehicle parked on Old Horn Lake Road, police found the victim’s body in the trunk of his car. Investigators testified that a blood-filled plastic garbage bag had been tied over his head; they discovered over $200 and a small amount of marijuana on the victim’s body.

Wendy Gunther, an assistant medical examiner for Shelby County, testified as an expert forensic pathologist. She performed an autopsy on the victim and determined that he had died from two gunshot wounds to the back of his head. She stated that the bullets lodged underneath his jaw after they had passed through his brain.

Sergeant Edward Cash, Memphis Police Department, started his investigation of the killing by visiting 6 West Rollins, a residence occupied by Mary Pennell. There he observed blood on the carpet and the curtains. Cash learned that the defendant had been the last person in the residence prior to the killing.

Cash testified that on January 27, 1996, the defendant confessed to having killed the victim at 6 West Rollins. In the confession, which Cash read into the record, the defendant admitted that “on Thursday, January 25, 1996 around 8:30 to 9:00 a.m., while at 6 West Rollins, [he] did ... shoot and kill Ernest Harris.” The defendant also stated that he had shot the victim in the back of the head with a “.380 automatic.” The defendant explained, “We had set up a deal. I didn’t have all of my money, and I tried to grab the dope and run out with it; and he grabbed me; and I shot him.” According to the statement, the defendant told the victim that he was approximately $3500 short on the money. The defendant stated, “Me and [the victim] kind of got into a verbal misunderstanding about the amount I was to pay so I grabbed the dope and the money and proceeded to run out of the house.” He explained that as he tried to run out the door, the victim, while still seated, grabbed him and tried to get up out of the chair. The defendant stated, “That’s when I reached into my pocket with my right hand and grabbed my gun and shot [the victim] in the back of the head twice while [the victim] was still seated.”

At trial, the defendant reiterated much of his confession. He claimed, however, that some of the information in it was incorrect. He clarified his statement by recalling that he really first spoke to the victim about three weeks prior to the fatal encounter, and, during that conversation, the victim asked him if he sold drugs. The defendant responded that he did, and the victim told him to give him a call if he ever needed any. The victim gave the defendant his pager number.

The defendant testified that on the Wednesday prior to the killing, the 'victim paged him, but he did not receive the page until Thursday. The defendant recalled that on Thursday morning, the day of the killing, he went to 6 West Rollins and paged the victim. When the victim did not respond, the defendant paged him again. The defendant testified that while he was at the West Rollins residence, Ms. Fen-nell’s children left to go to school. He stated that he became hungry, so he went to a nearby store to get food. On his way to the store, the defendant received a page from the victim. The defendant testified that he called the victim from the store between 8:00 and 8:30 a.m.

According to the defendant, the victim said he was “ready ... to sell [the defendant] some dope.” The defendant testified that he told the victim to meet him at 6 West Rollins with “a quarter or a half a quarter,” and he gave the victim directions to the house. The defendant testified that the victim arrived about thirty or forty minutes later.

The defendant recalled that the victim arrived at 6 West Rollins with “a small bag with handles on it” and placed the bag on the table next to the defendant’s money. The defendant stated that the victim “brought a quarter instead of a half of a quarter,” so the victim wanted more money. The defendant explained that the victim asked for $7500, but the defendant had only $6000. The defendant testified that as he began to negotiate with the victim, the victim demanded the higher price for a lower amount of contraband. The defendant testified that he told the victim that he could not pay $7500, and the victim became agitated.

The defendant testified that he stood up, told the victim that he could not afford the drugs, and started to walk towards the door. He recalled that as he got near the door, he grabbed his money that was on the table, but when he did, he accidently grabbed the bag of drugs as well. The defendant testified that the victim “jumped out of his seat ... and ... started assaulting [him].” He claimed that the victim shoved him and then hit him in the face. He stated that the victim grabbed at the defendant’s mouth, and the defendant pushed the victim back in the seat. According to the defendant, the victim stated, “you bitch, I’m going to kill you.” He recalled that the victim then began to reach for what the defendant thought was a gun. The defendant testified that the victim continued to hold the defendant’s arm, so the defendant ducked behind the chair that the victim was in and grabbed his own gun. He claimed that although he could not see the victim, he just “raised the gun up” and shot. He testified that it was not until he stood up that he realized that he had hit the victim.

The defendant testified that after the shooting, he ran to a back room and put the drugs and money down. He returned to the front room and noticed “a lot of blood coming out of [the victim’s] head,” so he grabbed a plastic garbage bag from the table and put it around the wound. He testified that he thought, “How can I get out of this?” At that point, he took the victim’s car keys and backed the victim’s car up to the side door of the residence. The defendant moved some furniture away from the door and went upstairs to get the victim’s body. He laid the body at the bottom of the steps leading to the den. The defendant stated that he opened the trunk of the car, went back inside to get the body, and placed the body in the trunk. He opined that it took him between five and fifteen minutes to move the victim’s body.

The defendant testified that after he loaded the body into the trunk, he went back into the house, wiped up the excess blood, and placed the soiled towels in a bag. He stated that he took the bag of towels with him, got into the car, and drove to Old Horn Lake Road. He parked the car, threw the keys across the street, and walked to a nearby gas station. There, he threw the bag of towels in a dumpster and walked back to 6 West Rollins where he got the items out of the back room and left.

The defendant recalled that he just drove around for awhile and that at some point, he went to pick up his brother, Michael Jackson, and later dropped him off at his brother’s girlfriend’s place. The defendant testified also that he received a page from Mary Fennell. He returned the call and said that he “didn’t know anything.” He stated that after the conversation, he drove downtown and threw the gun and the drugs in the Mississippi River.

On cross-examination, the defendant testified that dealing cocaine was “just something that [he does] in between jobs.” He recalled that before the killing, he had been selling for about a month and a half. He acknowledged that after the shooting, he let the victim lay there for about five or ten minutes with “blood spurting out of his head” while he considered what he was going to do. The defendant stated that he never checked to see if the victim was dead; he just assumed that he was dead.

Following a trial, the jury convicted the defendant of first degree murder (premeditated) and acquitted him of first degree murder (committed during the perpetration of a robbery). The trial court imposed a sentence of life imprisonment.

On direct appeal, the Court of Criminal Appeals concluded that the evidence of premeditation was insufficient to overcome the presumption that the killing was second degree murder. On that basis, the intermediate court reduced the defendant’s conviction to second degree murder and remanded the cause to the trial court for re-sentencing.

Pursuant to Tennessee Rule of Appellate Procedure 11, the State seeks review of the Court of Criminal Appeals ruling, contending that the presumption of second degree murder has outlived its usefulness and should be abandoned. Additionally, the State urges that the evidence was sufficient to convict the defendant of first degree murder (premeditated). Moreover, the State’s issues aside, the defendant contends that juror misconduct deprived him of a fair trial.

II. Second Degree Murder Presumption

A. Standard of Review

The State challenges the legal presumption that a homicide is second degree murder. This is a question of law; therefore, our review is de novo without a presumption of correctness. State v. Yoreck, 133 S.W.3d 606, 609 (Tenn.2004).

B. Analysis

In this appeal, the State contends that the presumption in favor of second degree murder relied upon by the Court of Criminal Appeals in reversing the defendant’s first degree murder conviction is “outmoded and should be abandoned.” The State insists that under the 1989 revision of the statutes, proof of a homicide does not necessarily place the offense within any of the six defined categories of homicide.

The presumption that a homicide is second degree murder is based on common law and was codified in Tennessee Code Annotated section 39-2-211(a) (1988). Once a killing was established, the law presumed it was murder in the second degree. Witt v. State, 46 Tenn. 5, 8 (Tenn.1868) (overruled on other grounds). In order to raise the killing to first degree murder, the State was required to prove premeditation. State v. Bullington, 532 S.W.2d 556, 560 (Tenn.1976). In Tennessee, under the pre-1989 statute, which is similar to the current statute, only two categories of murder existed — murder in the first degree and murder in the second degree. See TenmCode Ann. § 39-2-202(a) (1988) (defining first degree murder); Tenn.Code Ann. § 39-2-211(a) (1988) (stating that all other kinds of murder shall be deemed murder in the second degree). The codified presumption of second degree murder has since been repealed. Acts 1989, ch. 591, section 1.

In 1989, the legislature revised the criminal statutes, abolishing all common law offenses and replacing them with statutory offenses. Tenn.Code Ann. § 39-11-102, Sentencing Comm’n Comments. In so doing, the new statutory offense of criminal homicide was established. See TenmCode Ann. § 39-13-201 (2003). Criminal homicide currently includes the following six categories: first degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide, vehicular homicide, and reckless homicide. See Tenn.Code Ann. §§ 39-13-202, -210, -211, -212, -213, and -215 (2003). Based on the current statutory scheme, no presumption is engaged to place a killing within any of the categories of criminal homicide. Rather, in order to convict a defendant of any of the categories of criminal homicide, the State must prove each element of the offense beyond a reasonable doubt. TenmCode Ann. § 39-11-201 (2003). Under the current statutory scheme, the presumption is no longer applicable and is, therefore, obsolete.

We note that the perceived vitality of the second degree murder presumption after the revision of the criminal code appears to have been generated from this Court’s opinion in State v. Brown, 836 S.W.2d 530 (Tenn.1992). There, the Court stated, “The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree.” Id. at 543. Although Brown was decided in 1992, the homicide occurred in 1986, prior to the revision of the criminal statutes that resulted in the creation of six categories of criminal homicide. Thus, at the time of the offense in Brown, the only categories of murder were first degree and second degree. Therefore, the second degree murder presumption was properly applied in Brown. However, those cases following Brown in which the alleged offenses occurred after the statutory revision in 1989 apparently misapplied Brown, in that those cases should have been analyzed under the amended statutes.

In addition to the foregoing, we note that the presumption is superfluous. An instruction on the elements of the charged offense is sufficient to inform the jury of the law. When a trial court omits the language of presumption but “otherwise clearly informs the jury that the State carries the burden of proving each and every element of first degree premeditated murder beyond a reasonable doubt and also includes a correct and complete instruction on second degree murder, a criminal defendant is not entitled to relief.” State v. Coulter, 67 S.W.3d 3, 68 (Tenn.Crim.App.2001). The jury is instructed that in order to convict it must find the existence of each and every element of the offense beyond a reasonable doubt. An additional instruction regarding the second degree murder presumption then becomes inaccurate, misleading, and, at once, confusing. In this context, we recognize also that application of the second degree murder presumption may invite error. Thus, we conclude that removing the second degree murder presumption will help clarify the law and avoid confusion. Accordingly, today we abandon the second degree murder presumption.

We emphasize, however, that this Court’s abandonment of the second degree murder presumption is not a new constitutional rule which must be given retroactive application. “A rule that merely restates or reemphasizes pre-existing state law is not one that is new.” Momon v. State, 18 S.W.3d 152 (Tenn.2000). The burden on the State to prove each element of a crime beyond a reasonable doubt has long been recognized by statute, case law, and constitutional provision. See Id. This decision merely clarifies the law regarding the second degree murder presumption.

III. Sufficiency of the Evidence

A. Standard of Review

The defendant challenges the sufficiency of the convicting evidence. Our standard of review is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.2004). When reviewing the evidence, “the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.” State v. Smith, 24 S.W.3d 274, 279 (Tenn.2000). “Questions about the credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the evidence.” State v. Evans, 108 S.W.3d 231, 236 (Tenn.2003).

B. Analysis

The State contends that there is abundant evidence of premeditation. The defendant, on the other hand, insists that the evidence of premeditation is insufficient for conviction of first degree murder (premeditated).

First degree premeditated murder is statutorily defined as “a premeditated and intentional killing of another.” Tenn.Code Ann. § 39-13-202(a)(l) (2001). An act is premeditated if the act is “done after the exercise of reflection and judgment.” Id. at (d).

“Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.

Id.

The element of premeditation is a factual question to be decided by a jury from all the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.2003). Although a jury may not engage in speculation, it may infer premeditation from the manner and circumstances of the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997).

This Court has identified several circumstances that may support a finding of premeditation. Those circumstances include:

[D]eclarations by the defendant of an intent to kill, evidence of procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the particular cruelty of the killing, infliction of multiple wounds, preparation before the killing for concealment of the crime, destruction or secretion of evidence of the murder, and calmness immediately after the killing.

State v. Nichols, 24 S.W.3d 297, 302 (Tenn.2000).

Additionally, “[e]stablishment of a motive for the killing is a factor from which the jury may infer premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn.2004). “A verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt.” State v. Holton, 126 S.W.3d 845, 858 (Tenn.2004). “[0]n appeal, the defendant has the burden of illustrating why the evidence is not sufficient to support the jury’s verdict.” Id.

Viewing the evidence in a light most favorable to the State, the intermediate court stated:

Although, there was no showing that the victim was armed, no evidence was presented at trial indicating that the defendant made any declarations of intent to kill the victim, made any preparations to conceal the offense prior to shooting the victim, or had a previously formed design or intent to kill the victim. There was no showing of hostility between them. Furthermore, while the defendant possessed a gun, the evidence does not indicate that the defendant procured the gun for the purpose of killing the victim. See [State v. West, 844 S.W.2d 144, 147 (Tenn.1992)] (noting that in failing to establish premeditation, the state failed to present proof of its theory that the defendant returned to his residence and retrieved a gun for the specific purpose of killing the victim when the defendant testified he carried his gun with him all morning prior to the shooting). The record reflects the defendant shot an unarmed victim twice in the back of his head. The pathologist was unable to ascertain the locations of the parties at the time of the shooting but opined the muzzle was more than three feet away from the victim’s [head]. Based upon the evidence, we are unable to conclude that the defendant killed the victim execution-style while the victim was kneeling, although it may have been a possibility.

We are persuaded that the conclusion reached by the intermediate court is the correct one without application of the presumption. Of the factors that this Court has acknowledged as tending to prove premeditation, only one — use of a deadly weapon on an unarmed victim — is present here. See Bland, 958 S.W.2d at 660. Even so, the defendant claimed that he believed that the victim was armed and prepared to shoot. Additionally, although the evidence establishes that the defendant shot the victim in the back of the head at a downward angle, no evidence in the record supports the conclusion that the victim was kneeling on the floor when the shots were fired. Furthermore, we also note, as did the Court of Criminal Appeals, that the jury acquitted the defendant of murder committed in the perpetration of robbery. Thus, we are unable to conclude that the defendant’s motive for killing the victim was robbery.

Finally, we note that concealment of evidence of a crime, standing alone, is insufficient to prove premeditation. See State v. West, 844 S.W.2d 144, 148 (Tenn.1992) (“The concealment of evidence ... may be associated with the commission of any crime and the accompanying fear of punishment. One who kills another in a passionate rage may dispose of the weapon when reason returns just as readily as the cool, dispassionate killer.”). This Court and the Court of Criminal Appeals have rejected finding such premeditation based solely upon a defendant concealing evidence after the crime. See West, 844 S.W.2d at 147 (defendant waiting an hour and a half before calling the police, during which time he hid the weapon and went about his business, was insufficient evidence of premeditation); State v. Long, 45 S.W.3d 611, 621 (Tenn.Crim.App.2000) (defendant’s actions hiding the victim’s body, lying to the victim’s mother, sister, and the sheriff about her whereabouts; and shooting pool with friends after the murder did not establish premeditation). In this case, the defendant attempted to conceal commission of the crime, but his sloppy incomplete efforts actually appear to undercut rather than support premeditation. Nothing in the record indicates that the defendant gave any forethought to concealing the crime. Based on the foregoing, we conclude that the evidence was insufficient for a rational trier-of-fact to find the defendant guilty of first degree premeditated murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

IV. Jury Sequestration

As a final issue, we address the defendant’s contention that the rule of sequestration was violated and that several jurors misconducted themselves. The facts underlying this contention are: (1) that several jurors encountered the spouse of one of the deputies sworn to keep jurors separate and apart from all persons; (2) a juror spoke to an unidentified person at a restaurant; (3) deputies removed a non-juror from the line of jurors waiting to go through a buffet line; and (4) several jurors drank beer the night before the verdict was reached.

In criminal prosecutions in which a jury is sequestered, the trial court “shall prohibit the jurors from separating at times when they are not engaged upon actual trial or deliberation of the case.” Tenn.Code Ann. § 40-18-116 (2003). “[T]he test of keeping a jury ‘together’ is not a literal one, requiring each juror to be at all times in the presence of all others.” State v. Bondurant, 4 S.W.3d 662, 671 (Tenn.1999). Rather, “[t]he real test is whether a juror passes from the attendance and control of the court officer.” Id. Once a defendant shows that a jury has been separated, the burden shifts to the State to show that such separation did not result in prejudice to the defendant. Gonzales v. State, 593 S.W.2d 288, 291 (Tenn.1980). “If the State fails to meet the burden of showing that the separation did not result in prejudice, a new trial is required.” Bondurant, 4 S.W.3d at 672.

In the present case, the defendant has adequately shown that the jurors were, in fact, separated. Thus, the burden shifts to the State to prove lack of prejudice. We conclude, as did the Court of Criminal Appeals, that the State met its burden. As the intermediate court noted, the State presented the testimony of all jurors on the panel as well as that of the deputy in charge of the jurors and that deputy’s husband. All of the jurors and the deputy testified that they did not discuss the trial with any non-jurors. Additionally, the deputy’s husband testified that he was unaware of the facts and circumstances underlying the trial. We are satisfied that the defendant was not prejudiced by the separation.

Nevertheless, we are constrained to note that the behavior of the jurors and those sworn to insulate them was reprehensible. Specifically, we refer to the consumption of alcoholic beverages while sequestered. The jurors and deputies who participated in this behavior testified that no person drank to the point of intoxication. However, we view such conduct as irresponsible and a breach of the jurors’ sworn oath and solemn duty. Such conduct challenges the integrity of the jury system and deprives the public of the faith it must necessarily repose in our system of justice. Even though we have found that the jurors’ conduct did not affect the deliberative process in this case, we condemn such conduct. Courts must continue to ensure the integrity of the jury system by holding jurors accountable to the highest standards of conduct.

V. Conclusion

Accordingly, and for the reasons stated, we affirm the judgment of the Court of Criminal Appeals convicting the defendant of second degree murder. We remand to the trial court for a new sentencing hearing. It appearing that Vincent Jackson is indigent, costs are taxed to the State of Tennessee, for which execution may issue if necessary.

      . The trial court correctly instructed the jury on the elements of each crime and did not address the second degree murder presumption. However, when the case was before the Court of Criminal Appeals, the intermediate court based its holding on the fact that the evidence was not sufficient to rebut the presumption that the offense was second degree murder.

      . A few of the cases that have misapplied Brown include: State v. Banks, No. W2000-00963-CCA-R3-CD, 2004 WL 1686868 (Tenn.Crim.App.2004); State v. Coulter, 67 S.W.3d 3 (Tenn.Crim.App.2001); State v. Boyd, 909 S.W.2d 50 (Tenn.Crim.App.1995); State v. Boyd, No. 01-C-01-9109-CR-00281, 1993 WL 488322 (Tenn.Crim.App.1993); and State v. Hassell, No. 02-C-01-9202-CR-00038, 1992 WL 386311 (Tenn.Crim.App.1992).

      . Additionally, we note that the presumption was only applied in this case at the intermediate court level, after the State had proven all of the elements of the crime beyond a reasonable doubt.

      . No evidence indicates that the defendant procured the gun to kill the victim. The defendant did not clean the apartment where the killing occurred, nor did he bring with him any of the items he used to attempt to conceal the crime. Also, the record does not demonstrate that the defendant carefully planned to hide the victim’s body — although he placed the victim’s body in the trunk of the victim's car, the defendant parked the car near where the killing occurred.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Tennessee v. Stanley Ray DAVIS. In re Ray D. Driver d/b/a Driver Bail Bonds.
    Supreme Court of Tennessee, at Knoxville.
    May 25, 2005 Session Heard at Cookeville.

    Sept. 29, 2005.

      Joel H. Moseley, Sr., and Joel H. Moseley, Jr., Nashville, Tennessee, for the appellant, Ray D. Driver d/b/a/ Driver Bail Bonds.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee.

      . This case was heard as part of the May 25, 2005, S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project in Cookeville, Putnam County, Tennessee.

   Opinion

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted the applications of the State and Ray Driver d/b/a Driver Bail Bonds pursuant to Tennessee Rule of Appellate Procedure 11 in order to determine whether the imposition of sentence upon Stanley Ray Davis, the defendant, effectively terminated Driver’s obligations under an appearance bond, and whether Driver is liable for the payment of the fine and costs assessed against the defendant.

Although the issue was contested in the Court of Criminal Appeals, in its brief and oral argument to this Court, the State concedes that Driver’s obligation to secure the defendant’s appearance terminated upon imposition of sentence upon him and entry of judgment. We hold that Driver’s obligation terminated upon Davis’ sentencing and reverse the decision of the Court of Criminal Appeals and remand the case to the Criminal Court for Campbell County for further orders in aid of this opinion.

I. Facts and Procedural History

Stanley Ray Davis was indicted by a Campbell County grand jury for driving while under the influence of an intoxicant and driving on a suspended license. See Tenn.Code Ann. § 55-10-401 (2004); § 55-50-504 (2004). The magistrate set an appearance bond in the amount of $1,750, which was undertaken by Ray Driver d/b/a Driver Bail Bonds (hereinafter “Driver”) on December 2, 2001.

The defendant appeared in General Sessions Court on December 10, 2001, and entered a plea of guilty to driving while under the influence of an intoxicant; the General Sessions Court imposed a $350 fine and sentenced him to eleven months twenty-nine days in jail — two days to serve and the rest suspended. The court also ordered the defendant to pay fine and costs prior to his probation hearing, set for March 11, 2002.

The defendant served his two-day sentence but failed to pay his fine and costs. He also failed to appear for the probation hearing on March 11, 2002. Because of his failure to appear, the General Sessions Court entered a conditional forfeiture against Driver on March 20, 2002, and a scire facias was served on Driver on March 25, 2002, requiring the defendant to appear on September 17, 2002.

In Driver’s answer to the scire facias, Driver contended that because a sentence had been imposed and judgment entered in the case, he had been discharged of his responsibility pursuant to Tennessee Code Annotated section 40-ll-138(b) (2003). The State maintained, however, that pursuant to Tennessee Code Annotated section 40-11-130 (2003), the court had discretion to determine whether the bond would remain in effect or whether to release Driver from his obligation. In the “Waiver of Grand Jury Indictment and Jury Trial and Request for Acceptance of Guilty Plea,” the General Sessions Judge marked the box indicating “the defendant and his/her sureties shall remain obligated under the present bail for future court appearances.” This marked box, the State argued, was sufficient to extend Driver’s liability.

At the final forfeiture hearing on November 15, 2002, while the defendant remained a fugitive, the General Sessions Court entered a final forfeiture against Driver and ordered him to pay $570 instead of the bond’s face amount of $1,750. The State and Driver appealed the decision of the General Sessions Court to the Criminal Court de novo, pursuant to Tennessee Code Annotated section 27-5-108 (2000 & Supp.2004). The State asserted that the company remained obligated pursuant to Tennessee Code Annotated section 40-11-130 and that it should be ordered to pay the full amount of the bond. Driver, on the other hand, contended that he had been relieved of all of his obligations pursuant to Tennessee Code Annotated section 40-ll-138(b). The Criminal Court agreed that Driver was still obligated under the bond and ordered him to pay $570.

Both Driver and the State appealed as of right to the Court of Criminal Appeals, each reiterating the argument made in the trial court. The Court of Criminal Appeals addressed the apparent conflict between Tennessee Code Annotated sections 40-11-130 and 40-ll-138(b). It Mowed the rule of statutory construction that the inconsistent provisions of the older statute are repealed by the newer statute, and, accordingly, affirmed the judgment of the trial court.

Both Driver and the State sought appeal pursuant to Tennessee Rule of Appellate Procedure 11, and we granted both applications. In its brief and oral argument to this Court, the State conceded that Driver was released from his obligation after the disposition of the defendant’s criminal charge.

II. Standard of Review

Questions regarding statutory construction are reviewed de novo with no presumption of correctness to the lower courts’ findings. State v. Denton, 149 S.W.3d 1, 17 (Tenn.2004); State v. Walls, 62 S.W.3d 119, 121 (Tenn.2001). This Court’s duty is to ascertain and carry out the intent of the legislature without unduly expanding or restricting a statute’s intended scope. State v. Jennings, 130 S.W.3d 43, 46 (Tenn.2004) (citing Lavin v. Jordon, 16 S.W.3d 362, 365 (Tenn.2000)).

III. Analysis

We find that there is, apparently, a conflict between Tennessee Code Annotated sections 40-11-130 and 40-11-138. To clarify, both of these statutes govern the obligation and release of sureties and were originally codified together as part of the “The Release from Custody and Bail Reform Act of 1978.” Tennessee Code Annotated section 40-11-130 allows the defendant to create a new bond, or, if the court deems the original bond “sufficient,” to continue the original bond on the defendant. Section 40-11-130 provides:

(b) If the defendant files a timely appeal with the court of criminal appeals, if the defendant is placed on pre-trial or post-plea diversion or community correction, fined or if the defendant’s sentence is suspended and probation granted, the defendant shall be required to make a new bond or recognizance notwithstanding that the bond or recognizance executed in accordance with subsection (a) has not yet terminated, unless the trial judge, after examination of the original bond, sets out in a written order that such original bond is sufficient. The court shall use its discretion in determining whether the bond at issue should be changed. No presumption is otherwise intended to be raised in this section.
(2) If the defendant is placed on pretrial or post-plea diversion, community correction, fined or if the defendant’s sentence is suspended and probation granted, the defendant shall be required to make such new bond or recognizance to the court granting such placement. Such new bond or recognizance may not terminate until the defendant has completed the period of court-ordered supervision or until the defendant’s diversion, community correction or probation is revoked. If the defendant’s diversion, community correction or probation is revoked, the bondsman may be required to surrender the defendant.

Tenn.Code Ann. § 40 — 11—130(b).

Tennessee Code Annotated section 40-11 — 138(b), however, releases the company from its obligation after the disposition of the case, including sentencing. It states,

In addition to any other provisions releasing sureties from their obligations, a bail bondsman or surety shall also be released from its obligation under a bail bond upon the disposition of the charge against the surety’s principal. A disposition shall include, but shall not be necessarily limited to, conviction, acquittal, a plea of guilty, agreement with the state, whether designated diversion or otherwise, or retirement; provided, that where the disposition is a conviction or plea of guilty, the surety, unless relieved by the court, shall remain liable on the criminal appearance bond until the court renders the defendant’s sentence.

TenmCode Ann. § 40-ll-138(b).

When resolving statutory conflicts, this Court strives to give effect to the legislative intent and to adopt a reasonable construction of the statutes that avoids conflict, allowing for harmonious operation of the laws. Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn.1997) (citing Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995)); see also State v. Cauthern, 967 S.W.2d 726, 735 (Tenn.1998). Statutes, “in pari mate-ria,” are to be read together, in order to advance their common purpose or intent. See Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994); see also In re Akins, 87 S.W.3d 488, 493 (Tenn.2002); Cronin, 906 S.W.2d at 912. Additionally, the legislature is presumed to know its prior acts, so repeals by implication will only be found when the statutes cannot be construed together harmoniously. State v. Hicks, 55 S.W.3d 515, 523 (Tenn.2001); State v. Martin, 146 S.W.3d 64, 73 (Tenn.Crim.App.2004). Lastly, specific statutory language will control over general statutory language. Cauthern, 967 S.W.2d at 735.

The intermediate court found a conflict between the two statutes and held that part of Tennessee Code Annotated section 40-11-130 was repealed by implication. Tennessee Code Annotated section 40-11-130 allows the court to continue the original bond on the defendant while Tennessee Code Annotated section 40-ll-138(b) releases a surety from its obligation after the disposition of the case.

Initially, we note that our state legislature has recently amended section 40-11-130 to better reconcile this statute with section 40-11-138. See Tenn.Code Ann. § 40-11-130 (2005) (eff. June 9, 2005). Nevertheless, we must consider the statutes as they existed at the time of the final forfeiture.

Despite the conflict between Tennessee Code Annotated sections 40-11-130 and 40-ll-138(b), the two statutes can be read together and reasonably construed so as to give effect to each. In construing the two statutory provisions together, we follow the rule of statutory construction which provides that a special act will prevail over a more general one. See Arnwine v. Union County Bd. of Educ., 120 5.W.3d 804, 809 (Tenn.2003) (quoting Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013, 1015 (1946)) (“Where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to affect the more particular provision.”); see also State v. Safley, 172 Tenn. 385, 112 S.W.2d 831, 833 (1938). When two statutes seemingly address the matter in question, and one is special and particular and the other is general, then the general statute will be construed so as to operate on all the subjects introduced therein except the particular one which is the subject of the special provision.

Reading the two statutes together, and applying the rules of statutory construction, the specific language of section 40-ll-138(b) will prevail. Thus, a surety is released from his obligation on a bond upon disposition of the case, including sentencing. This holding is also in keeping with the principles of statutory construction and the common law liability of sureties.

Since we hold that Driver’s obligation ended upon Davis’ sentencing, the issue whether the trial court effectively forced the company to pay the defendant’s fíne and costs is moot.

IV. Conclusion

Because Driver’s obligation ended upon disposition of Davis’ case, we reverse the decision of the Court of Criminal Appeals. Accordingly, the cause is remanded to the trial court for further orders in aid of this opinion. The costs of this appeal are taxed to the State of Tennessee, for which execution may issue if necessary.

      . Scire facias is defined as “a writ requiring the person against whom it is issued to appear and to show cause why some matter of record should not be annulled or vacated, or why a dormant judgment against that person should not be revived.” Black's Law Dictionary 624 (2nd pocket ed.2001).

      . “Appeal from general sessions court. — (a) Any party may appeal from an adverse decision of the general sessions court to the circuit court of the county within a period of ten (10) days on complying with the provisions of this chapter ... (c) Any appeal shall be heard de novo in the circuit court.”

      . Section(b)(l) of the amended statute provides:
      “If the defendant is placed on pre-trial, post-plea or judicial diversion, community-correction, fined or if the defendant's sentence is suspended and probation granted, any such action shall constitute a disposition pursuant to § 40 — 11—138(b), the bond or recognizance is terminated, and the bondsman or other surety shall be released from their obligations.”

      . Safley, 112 S.W.2d at 833 (citing 2 Lewis’ Suth. Stat. Const. (2nd Ed.) § 345):
      "Where there is a general provision applicable to a multitude of subjects, and also a provision which is particular and applicable to one of these subjects, and inconsistent with the general provision, it does not necessarily follow that they are so inconsistent that they both cannot stand. The special provision will be deemed an exception and the general provision will be construed to operate on all the subjects introduced therein except the particular one which is the subject of the special provision.”

      . Under Tennessee precedent, a surety is released from obligation once a sentence has been pronounced. See Suggs v. State, 129 Tenn. 498, 167 S.W. 122, 123 (1914).

      . See State v. Clements, 925 S.W.2d 224, 227 (Tenn.1996) (Funds can only be attached to pay a defendant's fine and costs if it can be determined, objectively, that the surety "assented to this possibility, either by signing the document or by some subsequent act.”) No indication exists in this record that the company intended to be bound for the defendant's fine and costs.


author: FRANK G. CLEMENT, JR., J.,

text:
    James H. SIBLEY, et al. v. W. Keith McCORD, et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    May 5, 2004 Session.
    Sept. 28, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      Gene A. Stanley, Jr., Knoxville, Tennessee, for the appellants James H. Sibley, S & M Body Shop, Inc., and Truck Sales & Service, Inc.
    Darryl G. Lowe, Knoxville, Tennessee, for the appellees, W. Keith McCord, Weaver & Troutman, P.C., and McCord & Troutman, P.C.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., P.J., M.S., and PATRICIA J. COTTRELL, J., joined.

Plaintiffs, former clients of Keith McCord, Weaver & Troutman, P.C., seek an accounting, recovery of misappropriated funds, if any, and compensatory damages. Plaintiffs hired McCord and his firm to represent them in defense of federal and state tax claims and deposited upwards of $500,000 with the firm to facilitate payment of the disputed claims. The chancellor dismissed the action on summary judgment holding that the plaintiffs’ conversion claim was barred by the three-year statute of limitations and that the claim for an accounting was barred by the doctrine of judicial estoppel. We affirm.

This is an action against an attorney and his law firm brought by former clients whom the attorney represented in defense of federal and state tax claims. James H. Sibley, S & M Body Shop, Inc., and Truck Sales and Service, Inc., (Plaintiffs) filed suit against Keith McCord, Weaver & Troutman, P.C., and McCord & Trout-man., P.C. The corporate defendants are one Tennessee corporation, a law firm, which has undergone name changes.

Plaintiffs assert that beginning in 1991 and continuing through May of 1993, they deposited a total of $501,706 into McCord’s trust account to facilitate the settlement and payment of the tax claims. Sibley contends that he made numerous attempts to obtain information from McCord regarding the trust funds, including personal visits, telephone calls, and an April 21, 1999 written demand. He further contends that McCord failed to provide documentation, evaded Sibley’s inquiries and failed to account for the funds.

This action was commenced in 2001. In the complaint, Plaintiffs allege that McCord may have converted or misappropriated the remaining funds, if any, and they seek a judicial accounting for the period from April 1991 through December 1995. Plaintiffs further allege that the remaining trust funds may be in excess of $120,000.

McCord denies any wrongdoing or liability. He also insists that he previously accounted for the monies in July 1997 and that there is no need for a further accounting. He further asserts that Sibley’s claim of conversion is barred by the statute of limitations and that the remaining claims are barred by the doctrines of waiver and estoppel due to a judicial admissions by Sibley in a civil action between Sibley and a former business associate, Stephen Mays (Mays v. Sibley) concerning the funds at issue here.

McCord filed two motions for summary judgment based in part on Sibley’s assertions in Mays v. Sibley. The chancellor granted McCord’s motions for summary judgment. In one, the chancellor held that Sibley was judicially estopped from asserting that an accounting had not been provided by McCord. In the other, the chancellor held that the claim of conversion was barred by the three-year statute of limitations, TenmCode Ann. § 28-3-105, finding the statute began to run in 1997, when Sibley received the three-page ledger (accounting of trust activity) from McCord.

Plaintiffs appeal asserting that the chancellor erred by holding that Sibley was judicially estopped from denying he was provided with an accounting and by holding that the action for conversion was barred by the three-year statute of limitations. Though not stated as a separate issue, Plaintiffs also contend that the chancellor’s errors resulted from “putting the cart before the horse.” Stated another way, they contend that the chancellor should have ruled on the accounting issue before ruling on the conversion issue and doing so would have produced a different result.

We review a trial court’s summary judgment award de novo, with no presumption of correctness. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002). Summary judgments are not appropriate when genuine issues of material fact exist. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.Ct.App.1993). The moving party has the burden of proof and must either conclusively establish an affirmative defense or negate an essential element of the non-moving party’s claim. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998) (citing Byrd, 847 S.W.2d at 215). If and when this is accomplished, the burden shifts to the non-moving party. McCarley, 960 S.W.2d at 588. The court “must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.” Byrd, 847 S.W.2d at 210-211. If there is any doubt as to whether or not a genuine issue exists, summary judgment shall be denied. Byrd, 847 S.W.2d at 211; McCarley, 960 S.W.2d at 588.

The doctrine of judicial estoppel prevents a litigant who has taken a position in one judicial proceeding from taking a contradictory position in another. Chance v. Gibson, 99 S.W.3d 108, 110 (Tenn.Ct.App.2002) (citing Shell v. Law, 935 S.W.2d 402 (Tenn.Ct.App.1996)). Where one states under oath in former litigation, either in a pleading, a deposition or on oral testimony, a given fact as true, one will not be permitted to deny that fact in subsequent litigation, although the parties may not be the same. Melton v. Anderson, 82 Tenn.App. 335, 222 S.W.2d 666, 669 (1948). A pleading from a different case, if relevant, is a judicial admission and under the doctrine of judicial estoppel is conclusive evidence. Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn.1999).

Mays v. Sibley was a dispute between Sibley and his former business associate, Stephen Mays. Mays sued Sibley asserting that Sibley had received funds on behalf of Truck Sales & Service, Inc., S & M Leasing and S & M Body Shop but failed to account to Mays and to disburse Mays’ share. Mays demanded an accounting from Sibley. In defense of the allegations in Mays v. Sibley that Sibley had mishandled the trust funds, Sibley repeatedly asserted that he had received a full accounting of trust activities from McCord. Moreover, Sibley relied on the same three-page ledger prepared by McCord that is at issue here and represented it to be a full accounting of the disputed trust funds. In the Answer and Counterclaim to Mays’ complaint, Sibley stated that he had received a “full and complete accounting” from McCord, stating:

[P]roceeds ... were paid over to W. Keith McCord, Attorney-at-Law, who was acting as escrow agent or trustee for the parties to this action and the business entities described in the Complaint; and that further, Defendant avers that Plaintiff has been furnished with a full accounting by the aforesaid escrow agent or trustee of all monies received and disbursed by him;
Defendant avers that said funds were paid over by him to W. Keith McCord, the escrow agent or trustee for the parties, as hereinbefore described; and that Defendant further avers that Plaintiff has been furnished a full and complete accounting by the aforesaid escrow agent or trustee for all funds received and disbursed by him;
Defendant avers that the above-named W. Keith McCord was not acting as “Sibley’s attorney,” as alleged, but rather, as is hereinbefore stated, was acting as the escrow agent or trustee for Plaintiff and Defendant and for the subject business entities, as hereinbefore described, by agreement of Plaintiff and Defendant, and that Plaintiff has received a full accounting of the activities of said escrow agent or trustee, (emphasis added).

The assertions and pleadings by Sibley in Mays v. Sibley that he had received a full and complete accounting from McCord are judicial admissions. See Marcus, 993 S.W.2d at 602. As such, Sibley is precluded from now contending that he did not receive an “adequate” accounting. Thus, we affirm the dismissal of the claim for an accounting.

We now address the conversion issue. Actions for conversion of personal property shall be commenced within three-years of the accruing of the cause of action. Tenn.Code Ann. § 28-3-105. The three page ledger (accounting of trust activity) provided by McCord in July 1997 to Sibley states that the last trust activity was December 1995. Sibley’s action for conversion was not commenced until January 10, 2001, more than three years later. Accordingly, Sibley’s action for conversion is barred by the statute of limitations, TenmCode Ann. § 28-3-105, unless the statute of limitations is tolled due to fraudulent concealment.

Sibley contends that McCord fraudulently concealed the conversion of trust funds. To establish fraudulent concealment, a plaintiff must prove the following elements:

(1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) that the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) that the defendant had knowledge of the facts giving rise to the cause of action; and (4) that the defendants concealed material facts from the plaintiff by withholding information or making use of some device to mislead the plaintiff, or by failing to disclose information when he or she had a duty to do so.

Pero’s Steak and Spaghetti House v. Lee, 90 S.W.3d 614, 625 (Tenn.2002) (citing Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn.1998)). The record only contains mere allegations by Sibley of fraudulent concealment. There is no credible evidence in the record to support these claims. Specifically, there is no credible evidence in the record that McCord took affirmative action to conceal the cause of action or that he failed to disclose material facts. There being no evidence to support the contention of fraudulent concealment, the chancellor correctly held that the action for conversion was barred by the three-year statute of limitations.

We also find that the chancellor did not commit the error of putting the cart before the horse. Plaintiffs contend that the chancellor should have first ruled on the statute of limitations issue and found the limitation applicable to accountings applied rather than conversion. By not doing so, they contend, the chancellor got the proverbial “cart before the horse.” We find that the result would be no different had the chancellor first ruled on the cart or first ruled on the horse, because Sibley’s judicial admissions bar Plaintiffs’ claim for an accounting. Therefore, there was nothing left for the chancellor to erroneously put, or rule on, in the wrong order.

Costs of appeal are assessed jointly and severally against Appellants, James M. Sibley, S & M Body Shop, Inc., and Truck Sales & Service, Inc.

      . The corporate plaintiffs dissolved in 1989 and 1991, respectively. Sibley, a stockholder in both companies, claims to be acting as the agent concluding the corporations' business affairs.

      . Currently, the corporate defendant is identified as “The McCord Law Firm, P.C.” Keith McCord is the corporation's registered agent and stockholder.

      . Steven C. Mays, individually and as a shareholder and/or partner of TS & S, Inc., S & M Leasing and S & M Body Shop, Plaintiff v. James H. Sibley, individually and as a shareholder and/or partner and as officer and director of TS & S, Inc., S & M Leasing, Inc., and S & M Body Shop. The action was filed in the Chancery Court for Knox County, Tennessee (No. 134630-1).

      . "The doctrine ... rests solely on public policy which exalts the sanctity of the oath. The object is to safeguard the administration of justice by placing a restraint upon the tendency to reckless and false swearing and thereby preserve the public confidence in the purity and efficiency of judicial proceedings.” Melton, 222 S.W.2d at 669; see also Gilley v. Jernigan, 597 S.W.2d 313, 318 (Tenn.Ct.App.1979); and Bubis v. Blackman, 58 Tenn.App. 619, 435 S.W.2d 492 (Tenn.Ct.App.1968) ("[A] party cannot be allowed to solemnly take a position in the course of litigation which he thinks is to his advantage, and, then, change this position to another and contrary one when he deems it to his advantage to do so.”)

      . The funds at issue in Mays v. Sibley are the same funds at issue here.


author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    Monte PANITZ, et al. v. F. PERLMAN & COMPANY, INC., et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 20, 2004 Session.
    Oct. 4, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.

      John Andre Chiapella of Memphis for Appellants, Monte Panitz and Barry Pan-itz.
    Leo Bearman, Jr. and Maurice Wexler of Memphis for Appellees, F. Perlman & Company, Inc., Alan Perlman, Neil Cohen, Michael Wexler, Southern Steel Supply Company, Inc. and American Metal Sales, Inc.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which DAVID R. FARMER, J. and HOLLY M. KIRBY, J., joined.

Shareholders seek to inspect certain records of corporation of which they are shareholders, as well as records of two other corporations (“the subsidiaries”): a second corporation which is the wholly-owned subsidiary of the corporation in which Plaintiffs hold shares, and another that is the wholly owned-subsidiary of the second corporation. Defendants maintain that plaintiffs do not have any right to inspect the records of corporations in which they are not shareholders, but agreed to allow inspection of limited records of two subsidiaries as a courtesy, contingent upon plaintiffs signing a confidentiality agreement. Plaintiffs maintain that they have an unqualified right to inspect records of all three corporations under T.C.A. 48-26-102. The trial court found that the confidentiality agreement was reasonable and entered an order requiring defendants to produce certain records, dating back to 1991, for inspection and copying. It further held that, in light of defendants’ agreement to allow limited inspection of records of subsidiaries, it need not rule on issue of whether plaintiffs were entitled to inspect records of subsidiaries. We affirm as modified herein.

I. BACKGROUND

Appellants, Monte Panitz and Barry Panitz, are shareholders of F. Perlman & Company (“Perlman and Co.”). Perlman & Co. is the sole owner of Southern Steel Supply Company, Inc. (“Southern Steel”), and Southern Steel is the sole owner of American Metal Sales, Inc. (“American Metal”). Appellants are not shareholders of Southern Steel or American Metal.

On May 20, 2002, John Andre Chiapella, attorney for the Panitzes, demanded, by letter, “to inspect the records of the corporation and its subsidiaries .... to ascertain whether any breach of fiduciary duty has occurred with regard to the directors or officers of the corporation or its subsidiaries.” On June 13, Chiapella followed up with a more specific letter, demanding to inspect, “to the extent not previously inspected on July 5, 2002,” the following:

1. Charter and any amendments thereto from inception of said corporations to present;
2. Bylaws and any amendments thereto from inception of said corporations to present;
3. Any and all minutes from inception of said corporations to present; and
4. Total compensation paid to each and every officer for the last ten (10) years from each of the foregoing corporations.

Chiapella concluded his June 13 letter by stating the Plaintiffs’ purposes in requesting the records:

The purposes for which the inspection of records are hereby demanded are to aid the shareholders in their determination of whether the business of each corporation is being properly conducted and whether there has been any breach of fiduciary duty by any director or officer of the corporations.
We are in the process of hiring a forensic auditor to assist us in inspecting] the financial records of the corporations. Once accomplished, we will make demand with respect to the appropriate financial records.

In a letter to Chiapella dated July 3, 2002, Leo Bearman, Jr., attorney for Perl-man & Co. agreed to allow, “as a courtesy to you,” the inspection of certain of the records requested by the Panitzes, while maintaining that the Panitzes, not being shareholders of Southern Steel or American Metal, were not entitled to the information sought. Specifically, Perlman & Co.’s counsel offered to make available the following records for inspection:

1. A list of the officers and members of the Board of Directors of F. Perlman & Company, Inc. dating back to October 14,1996 (enclosed).
2. A list of the officers and board of Directors of Southern Steel Supply Company, Inc. dating back to June, 1994 (enclosed).
3. A list of the officers and directors of American Metal Sales, Inc. dating back to June, 1994 (enclosed).
4. A. To the extent they are readily available, copies of the minutes of Southern Steel Supply Company, Inc. and American Metal Sales, Inc. from 1991, to the present. You may review these in my office at your convenience. We have already supplied copies of the minutes of F. Perlman & Company, Inc.
B. A list of the total compensation by way of salaries and bonuses paid to Frank Perlman, Joe Williams, Neil Cohen, Michael Wexler, Gary McKib-ben, Alan Perlman, Barry Panitz, and Monte Panitz from 1997 to date.
C. The information listed in paragraphs 4.A. and 4.B. will be supplied to you after you and your clients execute a Confidentiality Agreement, a copy of which I enclose. We feel that individual compensation, as well as the content of all corporate minutes are indeed confidential, non-public, proprietary matters and, therefore, believe that this is a reasonable request.

The confidentiality agreement referenced by Bearman in item 4 C. of his July 3, 2002 letter reads as follows:

You have demanded inspection of records of F. Perlman & Company, Inc. (“F. Perlman”) on behalf of your clients, Monte Panitz, Barry Panitz and the Estate of Izzy Panitz. The purpose which you have stated for demanding the inspection of records is to aid your clients as shareholders of F. Perlman in a determination of whether the business of F. Perlman and its subsidiaries is being properly conducted and whether there has been a breach of fiduciary duty by any director or officer of F. Perlman or its subsidiaries. The records which you have requested include non-public information. F. Perlman is willing to provide such non-public information if it receives appropriate assurances of confidentiality and that the information will only be used by either you or your clients for the stated purposes.
Accordingly, the terms and conditions of this Confidentiality Agreement (the “Agreement”) are as follows:
1. Provision of Confidential Information. Pursuant to your letters of May 20, 2002 and June 13, 2002, you have requested information concerning F. Perlman and its subsidiaries that F. Perlman considers non-public, proprietary, or confidential in nature. All such information, whether having been previously provided, presently provided, or provided in the future is hereby collectively referred to as “Confidential Information”. F. Perlman is willing to disclose and provide such Confidential Information to you upon the terms and conditions set forth in this letter.
2. Acknowledgment of Confidentiality. You and your clients recognize and acknowledge the non-public and proprietary nature of the Confidential Information, and that damage could result to F. Perlman if any of the Confidential Information is disclosed to a third party. By receiving the Confidential Information from F. Perlman, you and your clients agree that any and all information may be furnished to you by F. Perlman’s officers, directors, employees or legal, accounting or other professional representatives will be used solely for the above stated purposes.
3. Use of Confidential Information. You and your clients agree to maintain the confidentiality of the Confidential Information and not to disclose such to any persons whatsoever, excepting only (I) persons to whom such disclosure is required by legal process (but only after notifying F. Perlman of their receipt of such process and giving F. Perlman an opportunity to seek such protection and protective orders as F. Perlman may undertake to obtain); (ii) such other persons to whom disclosure is approved in writing by F. Perlman; (iii) to your employees and agents pursuant to the above stated purposes and subject to the same terms and conditions; and (iv) in any judicial proceedings alleging a claim of your clients against F. Perlman.
4.Other Provisions. This Agreement shall be binding upon you and your clients and your respective successors, and assigns. This Agreement may be amended only by a writing signed by the parties hereto.
The undersigned agree to and accept the above-stated terms and conditions as of this_day of_, 2002.
JOHN ANDRE CHIAPELLA
Attorney for Monte Panitz, Barry Panitz and the Estate of Izzy Panitz
MONTE PANITZ
BARRY PANITZ
THE ESTATE OF IZZY PANITZ
By: -
Title: _

Neither the Panitzes nor Chiapella signed the Confidentiality Agreement. On April 4, 2003, the Panitzes filed a “Petition for Order Requiring Defendants to Produce Records for Inspection and Copying,” naming as defendants, F. Perlman & Company, Inc., Allan Perlman, Neil Cohen, Michael Wexler, Southern Steel Supply Company, Inc., and America Metal Sales, Inc. The petition also attaches as exhibits the above-referred letters dated May 20, 2002, June 13, 2002, and July 3, 2002, with a copy of a proposed confidentiality agreement and letters dated July 30, 2002 and May 31, 2002. The petition states, in relevant part:

8. The defendants have complied in part with plaintiffs’ request but have refused to furnish records of [Southern Steel and American Metal] and have refused to produce other records demanded by plantiffs unless plaintiffs and their attorney sign a “Confidentiality Agreement.”
9. Plaintiffs state that they are entitled to the records they have demanded, and that they have complied with T.C.A. Section 48-26-102, Subsection c, in (1) that their demand is made in good faith for a proper purpose; (2) they have described with reasonable particularity their purpose and the records they desire to inspect and (3) the records are directly connected with their purpose.
10. The purposes for the inspection of these records are to aid plaintiffs in determining (1) whether the business of each corporation is being properly conducted, (2) whether there has been any breach of fiduciary duty by any Director or officer of each corporation and (3) the value of plaintiffs interests in F. Perlman & Company, Inc.
11. Plaintiffs have no other adequate or specific remedy for the relief herein sought except that provided in T.C.A. Sections 48-26-101 — 48-26-201.
PREMISES CONSIDERED, PLAINTIFFS PRAY:
1.That a copy of this petition be served upon the defendants, and that the Court enter an order requiring the defendant corporations, through their President, Chairman of the Board of Directors and/or Secretary-Treasurer, to produce the records demanded of F. Perlman & Company, Inc., and the records of its two wholly owned subsidiaries, for inspection and copying by plaintiffs, their agents and/or attorney as provided by Sections 48-26-101 — 48-26-201.

On April 4, 2003, a Fiat was issued ordering that the Clerk of the Court issue notice to Perlman & Co., Alan Perlman, Chairman of the Board of Directors, Neil Cohen, President, and Michael Wexler, Secretary-Treasurer, to appear in court on Tuesday, May 6, 2003, for a hearing on the petition of the Panitzes to show cause why they should not produce the following records of F. Perlman & Co. and its wholly owned subsidiaries, for inspection and copying:

1. Charter and any amendments thereto from the inception of said corporations to the present less charter of F. Perlman & Company, Inc. as of June 3, 2002.
2. By-Laws and amendments thereto from the inception of said corporations to the present less by-laws of F. Perl-man & Company, Inc. as of June 3, 2002.
3. Any and all minutes from the inception of said corporations to the present less minutes of F. Perlman & Company, Inc. for the period February 18, 1991 through December 6, 2001.
4. Total compensation paid to each and every officer for the last 10 years from each of the foregoing corporations.

The Appellees filed an answer on April 16, 2003; a First Amended and Supplemental Answer on April 29, 2003; and a Second Amended and Supplemental Answer on May 6, 2003.

A hearing was held on May 6, 2003. On June 27, 2003, the court entered an Order Requiring Defendants to Produce Records For Inspection and Copying Subject to Protective Order. The order reads, in relevant part:

The Court, it not being necessary to do so, declines to decide the question of whether or not Plaintiffs, who are not shareholders of either Southern Steel Supply Company, Inc. or American Metal Sales, Inc., are entitled to demand certain records of those corporations. However, as a result of being advised of the previous offer made by Defendants’ counsel to produce certain records to Plaintiffs under certain conditions;
IT IS ORDERED, ADJUDGED AND DECREED that Defendants Southern Steel Supply Company, Inc. and American Metal Sales, Inc. shall make available to Plaintiffs for inspection and copying, to the extent that they are available, copies of the minutes of Southern Steel Supply Company, Inc. and American Metal Sales, Inc. from 1991 to the present, and copies of the charter and by-laws of the two corporations.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants F. Perlman & Company, Inc., Southern Steel Supply Company, Inc. and American Metal Sales, Inc. shall supply to Plaintiffs a list of the total compensation by way of salaries and bonuses paid to Frank Perlman, Joe Williams, Neil Cohen, Michael Wexler, Gary McKibben, Alan Perlman, Barry Panitz and Monte Panitz from 1991 to the present, to the extent that such information is available.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said Defendants shall supply the information set out above on condition that Monte Panitz, Barry Panitz and Barry Panitz, Trustee of the Izzy Panitz Credit Shelter Trust, execute a Confidentiality Agreement identical to that affixed to the petition filed in this matter and dated July 3, 2002, the court specifically finding that said Confidentiality Agreement is reasonable and that its execution constitutes a condition to Plaintiffs receiving access to the information set out above. Defendants Southern Steel Company, Inc. and American Metal Sales, Inc. shall make said material and information available to Plaintiffs within thirty days of the delivery to counsel for Defendants of the fully executed Confidentiality Agreement approved herein.

The Panitzes filed their Notice of Appeal on July 28, 2003.

II. STANDARD OF REVIEW

Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the trial court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.1996) and Tenn. R.App. P. 13(d). The trial court’s factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993).

III. ISSUES FOR REVIEW

1. Whether the order entered June 27, 2003, of the Chancery Court of Shelby County, Tennessee (“Chancery Court”) denying the Appellants, shareholders and members of the board of directors of F. Perlman & Company, Inc. (“Perlman & Company”) the right to inspect ALL the minutes and by-laws of Perlman & Company and its subsidiaries and allowing the Appellants only the right to inspect such records for the period commencing after 1991 was error.
2. Whether the Chancery Court erred in denying the Appellants as directors of Perlman & Company the right to inspect the records of Perl-man & Company and its subsidiaries.
3. Whether the Confidentiality Agreement which the Chancery Court required the Appellants to sign prior to inspection of the records of Perl-man & Company and its subsidiaries was a reasonable restriction pursuant to Tenn.Code Ann. § 48-26-104(d).
4. Whether the Chancery Court in its order of June 27, 2003 erred in allowing the Appellants to procure records only to the extent available as initially determined by Appellees without stating what records were not available and the reasons for such unavailability.
5. Whether the refusal of the Chancery Court to make Finding of Facts was error.

IV. ANALYSIS

Issue 1: Whether the order entered June 27, 2003, of the Chancery Court of Shelby County, Tennessee (“Chancery Court”) denying the Appellants, shareholders and members of the board of directors of F. Perlman & Company, Inc. (“Perlman & Company”) the right to inspect ALL the minutes and by-laws of Perlman & Company and its subsidiaries and allowing the Appellants only the right to inspect such records for the period commencing after 1991 was error.

The Panitzes contend that they are entitled, by virtue of T.C.A. 48-26-101 and T.C.A. 48-26-102, to inspect the records of not only F. Perlman & Co., but also American Metal and Southern Steel. The pertinent statutes read as follows:

§ 48-26-101. Required records.
(a) A corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders or board of directors without a meeting, and a record of all actions taken by a committee of the board of directors in place of the board of directors on behalf of the corporation.
(b) A corporation shall maintain appropriate accounting records.
(c) A corporation or its agent shall maintain a record of its shareholders, in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order by class and series, if any, of shares showing the number, class, and series, if any, of shares held by each shareholder.
(d) A corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time.
(e) A corporation shall keep a copy of the following records at its principal office:
(1) Its charter or restated charter and all amendments thereto currently in effect;
(2) Its bylaws or restated bylaws and all amendments to them currently in effect;
(3) Resolutions adopted by its board of directors creating one (1) or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding;
(4) The minutes of all shareholders’ meetings, and records of all action taken by shareholders without a meeting, for the past three (3) years;
(5) All written communications to shareholders generally within the past three (3) years, including any financial statements prepared for the past three (3) years under § 48-26-201;
(6) A list of the names and business addresses of its current directors and officers; and
(7) Its most recent annual report delivered to the secretary of state under § 48-26-203.
1986 Pub.Acts, c. 887, § 16.01.
§ 48-26-102. Shareholders right to inspect and copy records.
(a) A shareholder of a corporation is entitled to inspect and copy, during regular business hours at the corporation’s principal office, any of the records of the corporation described in § 48-26-101(e), if the shareholder gives the corporation written notice of the shareholder’s demand at least five (5) business days before the date on which the shareholder wishes to inspect and copy.
(b) A shareholder of a corporation is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation, if the shareholder meets the requirements of subsection (c) and gives the corporation written notice of the shareholder’s demand at least five (5) business days before the date on which the shareholder wishes to inspect and copy:
(1) Excerpts from minutes of any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or board of directors without a meeting, to the extent not subject to inspection under subsection (a);
(2) Accounting records of the corporation; and
(3) The record of shareholders.
(c) A shareholder may inspect and copy the records described in subsection (b) only if:
(1) The shareholder’s demand is made in good faith and for a proper purpose;
(2) The shareholder describes with reasonable particularity the shareholder’s purpose and the records the shareholder desires to inspect; and
(3) The records are directly connected with the shareholder’s purpose.
(d) The right of inspection granted by this section may not be abolished or limited by a corporation’s charter or bylaws.
(e) This section does not affect:
(1) The right of a shareholder to inspect records under § 48-17-201 or, if the shareholder is in litigation with the corporation, to the same extent as any other litigant; or
(2) The power of a court, independently of chapters 11-27 of this title, to compel the production of corporate records for examination.
1986 Pub.Acts, c. 887, § 16.02.

The crux of the Panitzes’ argument is that under T.C.A. 48-26-102, their status as shareholders of the parent or holding corporation, F. Perlman & Go., entitles them to inspect the records of the subsidiary corporations, American Metal and Southern Steel, even though the Panitzes are not shareholders of these subsidiaries. Appellees contend that the statute is clear on its face, and grants shareholders of a corporation the right to inspect the records of that corporation and no other.

We begin by noting that the plain language of the statute appears to grant the right to inspect a corporation’s records only to the shareholders of that corporation itself — not to the shareholders of the parent corporation. Section (a) of the statute refers to the right of “[a] shareholder of a corporation ... to inspect and copy ... the records of the corporation .... ” (emphasis added). Similar language appears in section (b). Quite plainly, the statute refers only to the right of shareholders of a corporation to inspect and copy the records of the same corporation, and does not grant that right to shareholders of one corporation to inspect the records of a second corporation, even when the second corporation is wholly-owned by the first corporation or by a subsidiary of the first corporation.

The primary rule of statutory construction is that the intention of the legislative body must prevail. See Gragg v. Gragg, 12 S.W.3d 412 (Tenn.2000); Moser v. Department of Transportation, 982 S.W.2d 864 (Tenn.Ct.App.1998). When the language of a statute is unambiguous, legislative intent is to be ascertained from the plain and ordinary meaning of the statutory language. The role of courts in interpretation of legislation is succinctly stated in Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799 (Tenn.2000):

When ... a statute is without contradiction or ambiguity, there is no need to force its interpretation or construction, and courts are not at liberty to depart from the words of the statute. Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997). Moreover, if “the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta, and obey it.’ ” Id. (quoting Miller v. Childress, 21 Tenn. (2 Hum.) 320, 321-22 (1841)). Therefore, “[i]f the words of a statute plainly mean one thing they cannot be given another meaning by judicial construction.” Henry v. White, 194 Tenn. 192, 198, 250 S.W.2d 70,72 (1952).
Finally, it is not for the courts to alter or amend a statute. See Town of Mount Carmel v. City of Kingsport, 217 Tenn. 298, 306, 397 S.W.2d 379, 382 (1965); see also Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn.1995); Manaban v. State, 188 Tenn. 394, 397, 219 S.W.2d 900, 901 (1949). Moreover, a court must not question the “reasonableness of [a] statute or substi-tut[e][its] own policy judgments for those of the legislature.” BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn.Ct.App.1997). Instead, courts must “presume that the legislature says in a statute what it means and means in a statute what it says there.” Id. Accordingly, courts must construe a statute as it is written. See Jackson v. Jackson, 186 Tenn. 337, 342, 210 S.W.2d 332, 334 (1948).

Id. at 803.

We find, therefore, under the plain language of the statute, the Panitzes do not have the right to inspect the records of two companies of which they are not shareholders, American Metal and Southern Steel.

In urging a different conclusion upon us, the Panitzes, in their brief on appeal, argue that T.C.A. 48-26-102 was passed by the legislature to prevent the oppression of minority shareholders by majority shareholders, who “enjoyed the economic benefits of the corporation through compensation, contracts with related parties, and corporate perks, etc., while paying no dividends. The minority shareholders ... would then expend time, energy and, most importantly, money, to compel inspection of corporate records.”

The Panitzes may well be correct in their explanation of the impetus behind the passage of T.C.A. 48-26-102, but such legislative history is irrelevant to the sole question concerning this statute: whether their status as shareholders of a parent corporation entitles them to inspect the books of the corporation’s subsidiaries. The Panitzes, surprisingly, do not directly address this question in their appeal brief, nor do they direct this Court to any Tennessee case law supporting their position that the statutory right of inspection extends to a corporation that is a wholly-owned subsidiary of the corporation of which they are shareholders. Nor is there any proof in the record that tends to suggest that the subsidiaries are mere alter egos of the parent corporations.

The Panitzes do have the right to inspect all the records pertaining to F. Perlman <& Co. itself, in light of they fact that they have made the showing of good faith and proper purpose set out in T.C.A. 48-26-102(c). T.C.A. 48-26-101 imposes upon corporations the obligation to keep certain records permanently, including the minutes of corporate meetings, and the same statute requires the maintenance of “appropriate accounting records.” We therefore find that, with respect to the chancery court’s order concerning the records of F. Perlman & Co., it was error for the court to limit the obligation of disclosure to records dating only to 1991. Therefore, we find that the chancery court did not err in failing to find that the Panitzes have a right to inspect the records of American Metal and Southern Steel. To the extent that the chancery court’s order pertains to F. Perlman & Co., we find that the court erred in limiting the obligation of disclosure to records dating from 1991 to present.

Issue 2. Whether a director of a corporation is entitled to inspect and copy all of the minutes of the meetings of the hoard of directors of such a corporation and its controlled subsidiaries.

The second issue on appeal is whether the Panitzes, as directors of F. Perlman & Co., have the right to inspect the records of subsidiary corporations, pursuant to their fiduciary duty to the shareholders of the parent corporation. In their appeal brief, the Panitzes argue, “[i]n order for the Appellants to perform their respective fiduciary duties each must have absolute access to the records of the corporation.”

The Panitzes did not seek this relief in their petition, nor did they raise this issue at trial. Generally, issues not raised at trial may not be raised for the first time on appeal. State Dept. of Human Services v. Defriece, 937 S.W.2d 954, 960 (Tenn.Ct.App.1996) (citing Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 153 (Tenn.1991); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.1983)). Because the Panitzes failed to raise this issue at trial, we decline to consider it on appeal.

Issue 3. Whether the confidentiality agreement required to be signed by the appellants is reasonable.

The third issue on appeal is whether the chancery court erred in finding that the confidentiality agreement that the Panitzes and their counsel were required to sign was reasonable. Appellants contend that the confidentiality agreement is unreasonable, as they explain in their appeal brief:

[I]t failed to exclude the following information which was deemed confidential: (1) information previously known to Appellants; (2) information independently developed by Appellants; (3) information acquired from a third party not under an obligation to Appellees not to disclose; and (4) information found in the public domain.

Appellees disagree with Appellants’ characterization of the confidentiality agreement, and assert that “ ‘confidential information’ ... is not defined to include that information previously known to Appellants, information previously developed by Appellants, information acquired from a third party not under obligation to Appel-lees not to disclose, or information found in the public domain.”

The confidentiality agreement, in the final form that the court ordered Appellants to sign as a condition of inspecting the corporate records, states in relevant part:

The undersigned ... have requested information concerning [F. Perlman, Southern Steel, and American Metal] which those corporations consider nonpublic, proprietary, or confidential in nature. All such information, whether having been previously provided, presently provided, or provided in the future pursuant to Decree of Chancery Court in cause no. CH-03-0640-1, is hereby collectively referred to as “Confidential Information.”

The agreement could reasonably be read to include information that should be excluded for the four reasons Appellants cite in the passage cited from their appeal brief, supra. We agree with the Panitzes that the confidentiality agreement is over-broad or at least ambiguous.

Therefore, we find that the confidentiality agreement the chancery court ordered the appellants to sign as a condition of inspecting the corporate records is unreasonable. We order that the agreement be modified to provide explicitly for the exclusion of the following types of information from the scope of the confidentiality agreement:

(1) Information previously known to Appellants;
(2) Information independently developed by Appellants;
(3) Information acquired from a third party not under an obligation to Appel-lees not to disclose; and
(4) Information found in the public domain.

We further find that the execution of the agreement, so revised, will be a reasonable condition of inspection of the records at issue in this case.

Issue 4. Whether the chancery court erred in ordering that documents be made available to appellants “to the extent ... available.

The next issue on appeal is whether the chancery court erred in ordering that documents, encompassed in the offer made by Appellees, be disclosed “to the extent ... available.” With respect to the information relating to American Metal and Southern Steel, we believe that the court did not err in ordering that such information be provided “to the extent available.” As we found supra, in our discussion of Issue 1, the Panitzes have not shown that they are entitled to inspect any records of American Metal or Southern Steel. Therefore, it is reasonable for the trial court to limit the Appellees’ obligation to provide such information, as being “to the extent available.”

With respect to the information to which the Panitzes are clearly entitled — i.e., the corporate records of F. Perlman & Co. encompassed by T.C.A. 48-26-101 and 48-26-102 — we agree that they are entitled to inspect all of the records of F. Perlman & Co. encompassed by T.C.A. 48-26-101 and 48-26-102. Therefore, we find that the modifier used by the chancery court in its order, “to the extent available,” suggests some degree of discretion on the part of the Appellees as to what they will provide to the shareholders. Such a condition is inconsistent with the plain language of the statute.

Since the record contains no suggestion that any information to which the Panitzes are entitled is, in fact, unavailable, we need not reach the question of what remedy the Panitzes will have if such information is not made available to them by the Appel-lees. Therefore, we modify the chancery court’s order to reflect that F. Perlman & Co. has an unqualified obligation to make its records, encompassed by T.C.A. 48-26-101 and 48-26-102, available for inspection.

Issue 5. Whether the chancery court erred in denying appellants’ motion for findings of fact.

The fifth and final issue on appeal is whether the chancery court erred in denying the Panitzes’ motion for findings of fact. We first note that no eviden-tiary hearing was held in this matter; the facts were not in dispute. Indeed, an evi-dentiary hearing is not contemplated by T.C.A. 48-26-104, the statute governing court-ordered inspections, which reads, in relevant part:

(a) If a corporation does not allow a shareholder who complies with § 48-26-102(a) to inspect and copy any records required by that subsection to be available for inspection, a court of record having equity jurisdiction in the county where the corporation’s principal office (or, if none in this state, its registered office) is located may summarily order inspection and copying of the records demanded at the corporation’s expense upon application of the shareholder.
(b) If a corporation does not within a reasonable time allow a shareholder to inspect and copy any other record, the shareholder who complies with § 48-26-102(b) and (c) may apply to the court of record having equity jurisdiction in the county where the corporation’s principal office (or, if none in this state, its registered office) is located for an order to permit inspection and copying of the records demanded. The court shall dispose of an application under this subsection on an expedited basis.

Moreover, Tenn. R. Civ. P. 52.01 requires the trial court to find the facts only in “actions tried upon the facts without a jury ...” (emphasis added). The facts were not in dispute in the case at bar, so this matter cannot be considered an action “tried upon the facts.” Therefore, this matter does not appear to fall under the fact-finding requirement set out in Rule 51.02. Finally, as Appellees correctly point out, whether a judge renders findings of fact is a matter in which “some discretion must reside in the trial judge-” Bruce v. Bruce, 801 S.W.2d 102 (Tenn.Ct.App.1990). We find that the chancery court did not err in fading to render findings of fact. Therefore, this assignment of error is without merit.

IV. CONCLUSION

We modify the chancery court’s judgment to reflect that F. Perlman & Co. has an unqualified obligation to make all of its records encompassed by T.C.A. 48-26-101 and 48-26-102, including its charter, bylaws, minutes of board of directors and shareholder meetings, and accounting records, available to the Panitzes for inspection and copying. Second, we modify the confidentiality agreement upon which the chancery court conditioned the inspection of the corporate records of F. Perlman & Co., American Metal, and Southern Steel, so that the agreement excludes the following type of information from its scope:

(1) Information previously known to Appellants;
(2) Information independently developed by Appellants;
(3) Information acquired from a third party not under an obligation to Appel-lees not to disclose; and
(4) Information found in the public domain.

The chancery court’s judgment is affirmed in all other respects. Costs of appeal are assessed one-half to appellants, Monte Panitz and Barry Panitz, and their surety, and one-half to appellees, F. Perl-man & Company, Inc., Allan Perlman, Neil Cohen, Michael Wexler, Southern Steel Supply Company, Inc., and American Metal Sales, Inc.

      . We note that some courts in our sister states have found that a shareholder’s right to inspect the records of a corporation may, under some circumstances, extend to wholly-owned subsidiaries of that corporation. But a shareholder’s right to inspect the records of a subsidiary will only be found when, in the words of one court, "the subsidiary is in fact the mere alter ego of the parent or that fraud has occurred.” South Side Bank v. T.S.B. Corp., 94 Ill.App.3d 1006, 50 Ill.Dec. 369, 419 N.E.2d 477, 479 (1981). See also State ex rel. Brown v. III Investments, Inc., 80 S.W.3d 855 (Mo.Ct.App.2002). As Appellees correctly note, "[tjhere is not even an allegation in Plaintiffs’ petition, much less any proof in the record, to support a conclusion that either American Metal Sales, Inc. or Southern Steel Supply Metal Sales, Inc. is the alter ego or instrumentality of F. Perlman & Company, Inc.” Therefore, we need not consider this question.

      . The right of shareholders to inspect corporate minutes and accounting records is contingent upon a showing of good faith and proper purpose, under T.C.A. 48-26-102(c), which reads:
      A shareholder may inspect and copy the records described in subsection (b) only if:
      (1) The shareholder’s demand is made in good faith and for a proper purpose;
      (2) The shareholder describes with reasonable particularity the shareholder's purpose and the records the shareholder desires to inspect; and
      (3) The records are directly connected with the shareholder’s purpose.
      It is uncontested by Appellees that the Pan-itzes had good faith and a proper purpose in seeking the records at issue in this dispute.