Tennessee Division of United Daughters of Confederacy v. Vanderbilt University

OPINION

delivered the opinion of the court,

This appeal involves a dispute stemming from a private university’s decision to change the name of one of its dormitories. An organization that donated part of the funds used to construct the dormitory filed suit in the Chancery Court for Davidson County asserting that the university’s decision to rename the dormitory breached its seventy-year-old agreement with the university and requesting declaratory and in-junctive relief and damages. Both the university and the donor organization filed motions for summary judgment. The trial court, granting the university’s motion, determined that the university should be permitted to modify the parties’ agreement regarding the dormitory’s name because it would be “impractical and unduly burdensome” to require the university to continue to honor the agreement. The donor organization appealed. We have determined that the summary judgment must be reversed because the university has failed to demonstrate that it is entitled to a judgment as a matter of law. Furthermore, based on the essentially undisputed facts, we have determined that the donor organization is entitled to a partial summary judgment because the university has breached the conditions placed on the donor’s gift and, therefore, that the university should be required to return the present value of the gift to the donor if it insists on renaming the dormitory.

I.

In 1867, George Peabody, an American merchant and financier living in London, donated one million dollars to establish a fund for the improvement of education in the South in the aftermath of the Civil War.1 Within a few years, the trustees of the fund, known as the “Peabody Education Fund,” had settled on a plan to endow a teacher training school, or normal school, as the best way to achieve the purpose of the fund. In 1875, the Peabody Education Fund financed the creation of a teacher training school within the existing University of Nashville.2 The teacher *103training school was officially named the “State Normal College,” and it operated under the auspices of the Peabody Education Fund board of trust, the University of Nashville board of trust, and the newly created Tennessee State Board of Education. In 1889, the school was renamed “Peabody Normal College” in honor of the school’s benefactor.

In 1902, the trustees of the Peabody Education Fund announced plans to liquidate the fund. Three years later, they voted to direct one million dollars of the proceeds to create a permanent endowment for a college of higher education for teachers in the Southern states as a successor to the Peabody Normal College. The trustees conditioned the gift on the raising of $550,000 in matching funds from the State of Tennessee, Davidson County, the City of Nashville, and other sources and on the University of Nashville’s donation of the land and buildings then being used by the Peabody Normal College. The trustees stipulated that the new institution would be known as the “George Peabody College for Teachers.”3

When the final governmental appropriations were made in 1909, the Tennessee General Assembly incorporated the George Peabody College for Teachers (“Peabody College”). The trustees of the new college, who had been appointed by the Peabody Education Fund trustees, quickly voted to spend almost $400,000 to purchase several properties adjacent to Vanderbilt University (“Vanderbilt”).4 Although the University of Nashville had donated land and buildings for use by the new college, the newly appointed Peabody College trustees had decided, with the support of the Peabody Education Fund trustees, to construct a new campus near Vanderbilt to foster institutional cooperation.

The Peabody College trustees embarked on an ambitious building plan for the new location, taking as their guide the design of the University of Virginia. Classes continued at the old Peabody Normal College in downtown Nashville through the end of the 1910-11 academic year.5 The new campus did not open for students until the summer of 1914, and when it did, only the Industrial Arts Building and Home Economics Building had been completed.

The construction of the Peabody College campus provided the Tennessee Division of the United Daughters of the Confederacy (“Tennessee U.D.C.”) with the perfect opportunity to implement a project it had been contemplating for some time. Since 1902, the Tennessee U.D.C. had been discussing the idea of raising funds for the construction of a women’s dormitory for the use of descendants of Confederate soldiers at a college or university in Tennessee. Accordingly, following the announcement of the decision to move to a new campus, the Tennessee U.D.C. began discussions with Peabody College regarding *104underwriting the construction of a dormitory on the new campus.

On January 21, 1913, the Tennessee U.D.C. entered into a contract with the Peabody College trustees to raise $50,000 for the construction of a women’s dormitory on the new campus. In return for this gift, the trustees agreed to allow women descendants of Confederate soldiers nominated by the Tennessee U.D.C. to live in the dormitory rent-free and to pay other dormitory expenses on an estimated cost basis. The’ contract reserved to the college the right to reject anyone nominated by the Tennessee U.D.C. and stipulated that the college would select the design and plan for the dormitory, would hold title to the building, and would control and manage it. However, it also stated that the Tennessee U.D.C. was “invited by the Trustees of the George Peabody College for Teachers to maintain throughout the future an advisory relationship with regard to the management of said building.” The 1913 contract specifically stated that the purpose of the Tennessee U.D.C. and Peabody College in entering into the contract was to evidence the agreement by which the Tennessee U.D.C. undertook to raise the construction fund and “the conditions which will be attached to the gift of the said fund” to Peabody College.

The fundraising campaign proceeded slowly at first. By 1927, fourteen years into the campaign, the Tennessee U.D.C. had collected little more than a third of the $50,000 it had agreed to raise. The Tennessee U.D.C. desired to turn over these funds to Peabody College but also desired to retain a right to recall them in the event the fundraising campaign ultimately failed. Thus, on June 17, 1927, the Tennessee U.D.C. entered into a second written contract with Peabody College.

The second contract stated that both parties desired that a “Confederate Memorial Hall” building be constructed on Peabody College’s campus. The Tennessee U.D.C. agreed to pay over to the college treasurer the $17,421.47 it had already raised and to turn over further sums when they were collected. In return, the college agreed that when the funds reached a sufficient amount, it would construct a building on its property conforming to plans and specifications to be agreed upon by the parties, and that the building would be used, for the purposes contemplated by the parties. In addition, the college agreed to invest the sums deposited by the Tennessee U.D.C., to pay the interest earned on these sums into the building fund annually, and to return the sums deposited, with interest, if the Tennessee U.D.C. decided to recall them.

In spite of the Great Depression, during the next six years the Tennessee U.D.C. managed to raise enough money to meet its original $50,000 goal. By that time, the Tennessee U.D.C. and Peabody College had decided that although a small women’s dormitory could be constructed for $50,000, they would both prefer to use the $50,000 as partial funding for the construction of a larger women’s dormitory to be located on the campus quadrangle. Peabody College estimated that the larger dormitory would cost approximately $150,000 and had already applied to the National Recovery Administration for the extra funding.

Sometime in September of 1933, the Tennessee U.D.C. and Peabody College entered into a third written contract to reflect their new plans.6 The third con*105tract expressly ratified and affirmed the 1913 and 1927 contracts. The Tennessee U.D.C. agreed to allow the college to use the original $50,000 and any additional sums raised by the Tennessee U.D.C. for the construction of a larger building, the plans and specifications of which had been examined, approved, and signed by representatives of the Tennessee U.D.C.7 The Tennessee U.D.C. agreed to this modification on the condition that the college allow the first two floors of the larger dormitory to be used for the purposes specified in the 1913 and 1927 contracts, and on the further condition that the college place on the building an inscription naming it “Confederate Memorial.” The third contract explicitly stated that it was “the intention of the parties that this contract shall be void and of no effect in case [the additional funding] is not obtained from said National Recovery Administration.”

The National Recovery Administration denied the request for a $100,000 construction grant on the ground that Peabody College was not a “public body.” Nevertheless, the Peabody College trustees and the Tennessee U.D.C. decided to proceed with their plans to use the Tennessee U.D.C.’s gift as partial funding for the construction of the larger dormitory. On June 8,1934, the Peabody College trustees voted to borrow $100,000 from the school’s permanent endowment to supplement the funds raised by the Tennessee U.D.C. On July 12, 1934, the contract for the construction of the new dormitory was awarded to V.L. Nicholson Co. for a guaranteed price of $131,294 or less. Construction drawings dated July 12, 1934 show the words “Confederate Memorial Hall” in incised lettering on the pediment on the front of the building. The building was completed in less than a year, and on June 1, 1935, Peabody College held a dedication ceremony for the new dormitory at which members of the Tennessee U.D.C. spoke.

From 1935 until the late 1970’s, women descendants of Confederate soldiers nominated by the Tennessee U.D.C. and accepted by Peabody College lived in Confederate Memorial Hall rent-free.8 However, by the late 1970’s, Peabody College found itself in increasingly dire financial straits. In the spring of 1978, the trustees of the college decided to lease two dormitories, including Confederate Memorial Hall, to Vanderbilt as a way to raise revenue. By that time, only a few students nominated by the Tennessee U.D.C. were living in Confederate Memorial Hall, but Confederate Memorial Hall still housed various artifacts placed there by the Tennessee U.D.C., including Confederate portraits, furniture, and scrapbooks.

When the Tennessee U.D.C. learned of the college’s decision to lease Confederate Memorial Hall to Vanderbilt, Mary Sneed Jones, head of the Tennessee U.D.C.’s Confederate Memorial Hall Committee, wrote a letter to Peabody College President John Dunworth urging that a different dormitory be leased to Vanderbilt. Ms. Jones inquired about the college’s plans for future “room awards” to women descendants of Confederate soldiers in the event the dormitory was leased to Vanderbilt and expressed concern for the Confederate artifacts placed in the building by the Tennessee U.D.C. In spite of these concerns, Peabody College proceeded with its plan to lease the dormitory to Vanderbilt. The record on appeal does not con*106tain Peabody College’s response to the Tennessee U.D.C.’s concerns regarding future “room awards,” but it does contain the college’s response regarding the disposition of the Confederate artifacts. On May 15, 1978, Ms. Jones and President Dunworth entered into a letter agreement in which the college agreed to return the Confederate artifacts to the Tennessee U.D.C. with the understanding that the Tennessee U.D.C. would then donate them to the Tennessee State Museum and the Tennessee State Library and Archives for future preservation.

Peabody College’s financial situation continued to deteriorate, and it soon became°evident that the college would either have to merge with another institution or face bankruptcy. In the fall of 1978, the executive committee of the college’s board of trust voted to allow President Dunworth to enter into confidential merger discussions with Vanderbilt. Vanderbilt was interested in absorbing the college’s assets but would not agree to preserve the college as a distinct school within Vanderbilt. As a result, President Dunworth suspended negotiations with Vanderbilt in December 1978 and entered into talks with George Washington University, Duke University, and Tennessee State University.

Tennessee State University emerged as the leading candidate for the merger.9 Tennessee State University would benefit from the additional resources and prestige of Peabody College, as well as the opportunity to offer doctoral programs in education, while Peabody College would be allowed to continue as a college of education and to retain most of its current faculty. The merger discussions with Tennessee State University became public in mid-February of 1979. Faced with competition from Tennessee State University and the possibility of losing its joint programs and other arrangements with Peabody College, Vanderbilt moved quickly to reopen merger talks with President Dun-worth. Vanderbilt offered substantially better terms than it had the previous December. Among other things, Vanderbilt agreed to allow Peabody College to continue to operate as a separate college of education and human development within Vanderbilt following the merger. On April 28, 1979, the trustees of Vanderbilt and Peabody College entered into an agreement effectuating the merger. Under the terms of the merger agreement, Vanderbilt succeeded to all of Peabody College’s legal obligations.

By the time of the merger, only four students nominated .by the Tennessee U.D.C. were still living in Confederate Memorial Hall. Vanderbilt allowed these four students to continue living there at a reduced rental rate, but after they graduated, no other students nominated by the Tennessee U.D.C. were allowed to live in Confederate Memorial Hall rent-free or at a reduced rate.10

In 1987 and 1988, Vanderbilt spent approximately $2.5 million to renovate and upgrade Confederate Memorial Hall. During the following academic year, there was much discussion on the Vanderbilt campus regarding the propriety of retaining the name “Confederate Memorial Hall.” A well publicized forum to discuss the issue was attended by Vanderbilt faculty, students, and staff, as well as repre*107sentatives of the Tennessee U.D.C. and concerned citizens. Vanderbilt Chancellor Joe B. Wyatt later issued a statement announcing that he was not inclined to recommend renaming Confederate Memorial Hall based on the historical information currently available and because of “the absence of any indication that the naming of Confederate Memorial Hall by George Peabody College for Teachers was in any sense intended to support either slavery or any other form of prejudice toward Blacks.”

Within a few months, the Vanderbilt Student Government Association passed a resolution recommending that Vanderbilt install a plaque on Confederate Memorial Hall explaining why it was named “Confederate.” Vanderbilt officials, in consultation with representatives of student groups and the Tennessee U.D.C., agreed to place a plaque by the entrance to Confederate Memorial Hall explaining the contributions of the Tennessee U.D.C. and the resulting name of the building. The plaque was installed in 1989.11

Controversy over the name of Confederate Memorial Hall arose again in the spring of 2000 when the Vanderbilt Student Government Association passed a resolution calling on the administration to change the name of the building. The resolution stated that students, faculty, staff, and members of the administration had expressed great discontent with the name, that the name did not honor the heritage of all Vanderbilt students, faculty, and administrators, and that regardless of the original intent of the Tennessee U.D.C. in 1935, individuals at Vanderbilt felt offended by the name. The resolution noted that the demographic population of Vanderbilt had changed significantly since 193512 and that Vanderbilt respected all individuals regardless of their racial identity.

E. Gordon Gee became the new chancellor of Vanderbilt in July 2000. In conversations with Vanderbilt students, faculty, and alumni over the next two years, the name of Confederate Memorial Hall was repeatedly identified as a major impediment to the progress of the university. In June 2002, Chancellor Gee discussed the matter with the executive committee of the Vanderbilt board of trust, and the executive committee decided that Chancellor Gee would handle the issue as an administrative matter. Chancellor Gee, without consulting the Tennessee U.D.C., then decided to change the name of “Confederate Memorial Hall” to “Memorial Hall,” and his decision was made public in the fall of 2002.

*108Chancellor Gee’s decision to rename Confederate Memorial Hall generated substantial public discussion. In September 2002, after the decision to rename the building was made public, Vanderbilt’s vice chancellor for public affairs wrote to the Tennessee U.D.C. to explain Chancellor Gee’s decision. The letter expressed gratitude to the Tennessee U.D.C. for its assistance to Peabody College in educating young teachers during a difficult time in the nation’s history and stated that the decision to rename the building had been made only after careful deliberation by the Vanderbilt administration, students, and faculty. In addition, the letter promised that the historic marker indicating the origins and historical significance of the building and the contributions of the Tennessee U.D.C. would remain in its current location. On October 3, 2002, Chancellor Gee met personally with representatives of the Tennessee U.D.C. and confirmed Vanderbilt’s intention to rename Confederate Memorial Hall. Chancellor Gee also confirmed that the plaque by the entrance explaining the history of the building would remain in place.

On October 9, 2002, the Vanderbilt Student Government Association passed a resolution endorsing Chancellor Gee’s decision to rename Confederate Memorial Hall. The resolution stated that the name of Confederate Memorial Hall had been under debate for fourteen years because of its negative association with slavery, that members of the Vanderbilt community-had resolved not to live in Confederate Memorial Hall because of its name, and that Vanderbilt should strive to be a place where all students are challenged but not excluded from feeling a part of their campus and their dormitories. The resolution noted that names on buildings are usually a sign of pride and thankfulness for the contributions made to construct them, but that Vanderbilt was not proud of the legacy of slavery attached to the name of Confederate Memorial Hall or some of the actions of the United Daughters of the Confederacy.

On October 10, 2002, Chancellor Gee drafted a memorandum to the full Vanderbilt board of trust explaining his decision to rename the building. Chancellor Gee stated that former, current, and prospective students, faculty, and staff had identified the presence on the Vanderbilt campus of a building named “Confederate Memorial Hall” as a barrier to achieving an inclusive and welcoming environment that is essential for a world-class university. He also noted that some individuals had refused to live or attend events in the building, that the building was originally named “Confederate Memorial Hall” to commemorate values that do not reflect those of a university dedicated to educating all and meeting the aspirations of the broader society, and that assigning students to live in a dormitory so named implied an endorsement, if not a celebration, of a system that many people find offensive. Finally, Chancellor Gee observed that having a building on the campus named “Confederate Memorial Hall” strongly reinforced the worst stereotypes held by many people that Vanderbilt is an institution trapped in a long-distant past.

The Vanderbilt board of trust supported Chancellor Gee’s decision to rename Confederate Memorial Hall. Since then, Vanderbilt has changed its maps, website, and correspondence to reflect the building’s new name of “Memorial Hall.” Vanderbilt has not yet removed the name “Confederate Memorial Hall” from the pediment on the front of the building but has indicated its unequivocal intention to do so. The 1989 plaque describing the history of the building and the contributions of the Tennessee U.D.C. remains in place by the entrance of the building.

*109On October 17, 2002, the Tennessee U.D.C. filed suit against Vanderbilt for breach of contract in the Chancery Court for Davidson County. The Tennessee U.D.C. alleged that it had fully performed its obligations under the 1913, 1927, and 1933 contracts and that Vanderbilt’s renaming of Confederate Memorial Hall constituted a breach of those contracts. The Tennessee U.D.C. sought an injunction to prevent Vanderbilt from removing the inscription on the pediment on the front of the building, a declaratory judgment specifying Vanderbilt’s rights and obligations to the Tennessee U.D.C., and compensatory damages in an amount to be shown at trial.

Vanderbilt answered and on August 1, 2003 filed a motion for summary judgment. Vanderbilt framed the primary issue before the trial court as “whether Vanderbilt should be required to maintain a name on one of its campus buildings in spite of the fact that that name evokes racial animosity from a significant, though unfortunate, period of American history.” Vanderbilt then turned its attention to its legal defenses. It advanced essentially five justifications for modifying its agreement with the Tennessee U.D.C. First, Vanderbilt claimed that none of the three contracts at issue specified precisely how the name “Confederate Memorial Hall” would be placed on the building and argued that the plaque installed by the entrance in 1989 constituted substantial compliance with any naming requirement in the three contracts. Second, Vanderbilt asserted that because the dormitory had not been used to provide free or reduced-rent housing to women descendants of Confederate soldiers since approximately 1983, the statute of limitations and the doctrine of laches barred the Tennessee U.D.C.’s belated attempts to enforce their rights under the contracts.13 Third, Vanderbilt argued that the Tennessee U.D.C. had received full consideration for its $50,000 donation because of the many women who had been allowed to live in the dormitory rent-free over the years and because the name “Confederate Memorial Hall” had remained on the building for almost seventy years. Fourth, Vanderbilt argued that principles of academic freedom prevented the court from requiring the maintenance of the name “Confederate” on the building. Fifth, Vanderbilt argued that maintaining the name “Confederate Memorial Hall” on the building *110might constitute a violation of state and federal anti-discrimination laws.14

The Tennessee U.D.C. opposed Vanderbilt’s motion for summary judgment arguing (1) that the 1989 plaque did not constitute substantial compliance with Vanderbilt’s contractual naming obligations, (2) that their claims were not barred by any applicable statute of limitations or the doctrine of laches, (3) that “full consideration” for their contribution of more than $50,000 would require Vanderbilt to honor all of its contractual obligations for the full life of the building, and (4) that principles of academic freedom would not prevent the trial court from forcing Vanderbilt to comply with the terms of a contract that its predecessor-in-interest, Peabody College, had entered into freely. The Tennessee U.D.C. further argued that Chancellor Gee did not have the authority to change the name of Confederate Memorial Hall and that Vanderbilt’s unilateral determination that the term “Confederate” had become offensive did not constitute a legally recognized basis for allowing Vanderbilt to breach its contractual obligations. Finally, the Tennessee U.D.C. sought a partial summary judgment holding that the 1913 contract, as amended by the 1927 and 1933 agreements, constituted a valid and binding contract between the Tennessee U.D.C. and Vanderbilt and that Vanderbilt had breached its contractual obligations by unilaterally deciding to rename Confederate Memorial Hall.15

The trial court heard the parties’ summary judgment motions on September 22, 2003 and filed a memorandum opinion on September 30, 2003. The memorandum opinion, as well as the final order filed on October 9, 2003, granted Vanderbilt’s motion for summary judgment and denied the Tennessee U.D.C.’s motion for partial summary judgment. The trial court framed the issue as “whether Vanderbilt has shown a sufficient basis for modification of the parties’ contracts to allow Vanderbilt to remove the name, ‘Confederate’ from the building on Vanderbilt’s Peabody campus.” The trial court found that neither the 1913 contract nor the 1927 contract required Peabody College to name the building “Confederate Memorial Hall” and that the 1933 contract was null and void because the condition precedent of funding from the National Recovery Administration never occurred. The court nevertheless found from the parties’ course of dealing that the Tennessee *111U.D.C. and Peabody College intended the building to be named “Confederate Memorial HaH.”

The trial court then addressed whether changes in society would excuse Vanderbilt from continuing to comply with the contractual naming obligation. The court noted that in the years between the signing of the contracts and the present, racial segregation had been declared unconstitutional, racial discrimination had been outlawed, Vanderbilt had integrated its student body, and a stigma had become attached to the name “Confederate” because of the Confederacy’s association with the institution of slavery. The trial court concluded that it would be “impractical and unduly burdensome for Vanderbilt to continue to perform that part of the contract pertaining to the maintenance of the name ‘Confederate’ on the building, and at the same time pursue its academic purpose of obtaining a racially diverse faculty and student body.” The court found that Vanderbilt had “carried its burden of proof for modification of the contracts,” declared that Vanderbilt sufficiently complied with its obligations under the 1913 and 1927 contracts by installation and maintenance of the plaque by the entrance to Confederate Memorial Hall, and held that, aside from the plaque, Vanderbilt could remove the name “Confederate” from the building without any further obligation to the Tennessee U.D.C. The Tennessee U.D.C. appealed.

II.

The STANDARD OF REVIEW

The standards for reviewing summary judgments on appeal are well settled. Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn.1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); Pendleton v. Mills, 73 S.W.3d 115,121 (Tenn.Ct.App.2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion — that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn.2002); Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn.2001).

The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn.1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn.Ct. App.2000).

Summary judgments enjoy no presumption of correctness on appeal. Bell-South Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn.2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn.2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Broum, 955 S.W.2d 49, 50-51 (Tenn.1997). We must consider the evidence in the light most favorable to the non-moving party, *112and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Sews., Inc., 46 S.W.3d 191, 196 (Tenn.2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn.Ct.App.1998).

The parties have only minor disagreements regarding the facts that are relevant to the issues presented in this case. After carefully reviewing this record, we have determined that these factual disagreements are either irrelevant to the issues to be decided or that they are not material enough to prevent granting a summary judgment to either party. Thus, the central issue on this appeal is whether the trial court erred by determining that Vanderbilt, rather than the Tennessee U.D.C., was entitled to a judgment as a matter of law. If the trial court did not err, then we must affirm the judgment. If, however, the trial court erred, we must reverse the summary judgment in favor of Vanderbilt, and then we must determine whether the Tennessee U.D.C. is entitled to a judgment as a matter of law based upon the undisputed facts.

III.

The Natuke of the Legal Relationship Between Peabody College and the Tennessee U.D.C.

In order to determine whether it is Vanderbilt or the Tennessee U.D.C. that is entitled to a judgment as a matter of law, we must first determine the precise nature of the legal relationship formed between the Tennessee U.D.C. and Peabody College by the 1913, 1927, and 1933 agreements. Although all three agreements use the word “contract,” they do not purport to establish a typical commercial arrangement in which one party provides certain goods or services in return for a sum to be paid by the other party. Instead, the agreements indicate that the $50,000 to be raised by the Tennessee U.D.C. was to be transferred to Peabody College as a gift. Peabody College’s status as a non-profit charitable organization dedicated to the advancement of education16 suggests the possibility of a donative intent on the part of the Tennessee U.D.C.,17 and this possibility is confirmed by the plain language of the three agreements. The 1913 agreement repeatedly describes the $50,000 to be raised and turned over to Peabody College as a “gift” from the' Tennessee U.D.C., and the 1927 and 1933 agreements do not in any way modify or retract this description.

The 1913, 1927, and 1933 contracts do not, however, describe the proposed transfer to Peabody College as a gift with *113no strings attached. The three contracts attach specific conditions to the gift, and the 1927 contract expressly reserves to the Tennessee U.D.C. the right to recall the gift if Peabody College fails or ceases to comply with these conditions. Where a party makes a donation to a charitable organization accompanied by conditions and a right to reclaim the donation if the conditions are not met, the law treats the arrangement between the parties as either a revocable charitable trust or a charitable gift subject to conditions. Southwestern Presbyterian Univ. v. City of Clarksville, 149 Tenn. 256, 281, 259 S.W. 550, 558 (1924); George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 324, at 379-80 (rev. 2d ed. 1992) [hereinafter Bogert on Trusts]; 4A Scott on Trusts § 351, at 52-54; 15 Am. Jur.2d Charities § 5, at 15-16, § 8, at 18-19 (2000); 38 Am.Jur.2d Gifts § 72, at 767-69 (1999); John K. Eason, Private Motive and Perpetual Conditions in Charitable Naming Gifts: When Good Names Go Bad, 38 U.C. Davis L.Rev. 375, 406-07 (2005) [hereinafter Eason].

The courts must look to the intent of the donating party to determine whether a particular transaction involves the creation of a revocable charitable trust or simply the giving of a charitable gift subject to conditions. 4A Scott on TRUSTS § 351, at 52-53; 15 Am.Jur.2d Charities § 5, at 15-16, § 8, at 18-19. A donating party will be deemed to have created a trust only if the party has expressed with certainty its intent to create a trust. Tenn.Code Ann. § 35-15-402(a)(2) (Supp. 2004);18 Bogert on Trusts § 45, at 483; 4A Scott on Trusts § 351, at 49; see, e.g., Davis v. Bullington, 164 Tenn. 272, 275, 47 S.W.2d 555, 556 (1932). Moreover, the expression of trust intent must be definite and particular, i.e., the donating party must express a particular intent to confer benefits through the medium of a trust rather than through some related or similar device. Ratio v. Nashville Trust Co., 178 Tenn. 457, 462, 159 S.W.2d 88, 90 (1942); Bogert on Trusts § 46, at 489-91; 15 Am.Jur.2d Charities § 8, at 19. The mere expression of a donative intent, or a statement of the purpose for which a gift is given, does not constitute an expression of trust intent. Bogert on Trusts § 46, at 492, 494. Absent a finding of an intent to create a trust, the transaction will be analyzed as a gift subject to conditions. Compare Bogert on Trusts § 324, at 382-86 & n. 15 (listing cases where trusts found based on sufficient expression of trust intent) with § 324, at 382 & n. 14 (listing cases where absolute or conditional gifts found because of insufficient expression of trust intent).

In many cases, the donating party is a natural person who has died by the time litigation arises concerning the appropriate characterization of the transaction. In such cases, it can be extremely difficult to discern whether the donating party possessed the intent necessary to create a revocable charitable trust or instead simply made a gift to charity subject to eondi-*114tions. In this case, however, the donating party is a corporate entity that is still in existence, and its representatives have participated fully in this case. The Tennessee U.D.C. does not claim that it intended to create a revocable charitable trust when it entered into the 1913, 1927, and 1933 agreements with Peabody College, and Vanderbilt has presented no evidence suggesting a trust intent on the part of the Tennessee U.D.C. Accordingly, we have no difficulty concluding, as a matter of law, that the 1913, 1927, and 1933 contracts reflect a charitable gift subject to conditions rather than the creation of a revocable charitable trust.19

IV.

The Conditions of the Gift

Donors often seek to impose conditions on gifts to charitable organizations. Richard L. Fox, Planning for Donor Control and Other Strings Attached to Charitable Contributions, 30 Est. Plan. 441, 441 (2003) [hereinafter Fox]. In the case of inter vivos transfers, the conditions are generally embodied in a gift agreement or a deed of conveyance. Tennessee Charitable Beneficiaries Act of 1997, Tenn. Code Ann. § 35-13-102(b)(8) (2001); Fox, 30 Est. Plan, at 441; see,-e.g., Walker v. Shelby County Sch. Bd., 150 Tenn. 202, 203, 263 S.W. 792, 792 (1924); Ledgerwood v. Gault, 70 Tenn. 643, 645,1879 WL 3767, at *2 (1879); Carmody v. Trs. of Presbyterian Church, 29 Tenn.App. 275, 276-79, 203 S.W.2d 176, 176-77 (1947). In the case of transfers to take place on the death of the donor, the conditions are generally contained in the terms of the donor’s will. See, e.g., Hinton v. Bowen, 190 Tenn. 463, 467-69, 230 S.W.2d 965, 967-68 (1950); Lane v. Lane, 22 Tenn.App. 239, 240, 120 S.W.2d 993, 994 (1938).

A conditional gift is enforceable according to the terms of the document or documents that created the gift. Tenn.Code Ann. § 35-13-103 (2001); 38 Am.Jur.2d Gifts § 72, at 767-69; 14 C.J.S. Charities § 30, at 199-200 (1991). If the recipient fails or ceases to comply with the conditions, the donor’s remedy is limited to recovery of the gift. Southwestern Presbyterian Univ. v. City of Clarksville, 149 Tenn. at 269, 259 S.W. at 554 (“One may *115attach such conditions to his contributions as to support his right to withdrawal thereof, upon a violation of such conditions, but his rights, or those of a group so situated, must be so limited.”); Eason, 38 U.C. Davis L.Rev. at 406-07 & nn. 115 & 118, 421; see also Ver Brycke v. Ver Brycke, 379 Md. 669, 843 A.2d 758, 771 (2004) (collecting cases); Stock v. Augsburg Coll, No. Cl-01-1673, 2002 WL 555944, at *5 (Minn.Ct.App. Apr. 16, 2002); Zimgibl v. Zimgibl, 165 Wis.2d 130, 477 N.W.2d 637, 640 (Ct.App.1991); 38 Am. Jur.2d Gifts § 72, at 767-69; 14 C.J.S. Charities § 30, at 200. Because noncompliance results in a forfeiture of the gift, the conditions must be created by express terms or by clear implication and are construed strictly. Southwestern Presbyterian Univ. v. City of Clarksville, 149 Tenn. at 282, 259 S.W. at 558; Hooton v. Nacarato GMC Truck, Inc., 772 S.W.2d 41, 46 (Tenn.Ct.App.1989); Simmons v. Hitt, 546 S.W.2d 587, 591 (Tenn.Ct.App.1976).

In order to identify the conditions attached to the gift from the Tennessee U.D.C. to Peabody College, we must first determine which contract or contracts govern the gift. Vanderbilt argues that the 1933 contract cannot be considered because it is void by its own terms. The 1933 contract is expressly conditioned on Peabody College’s receipt of funding from the National Recovery Administration, and it states that in the event such funding is not received, “this contract shall be void and of no effect.” It is undisputed that Peabody College did not receive the requested funding from the National Recovery Administration, and according to Vanderbilt, the failure of this condition precedent absolved Peabody College, and hence Vanderbilt, from any duty to comply with the conditions of the gift contained in the 1933 contract.

It is true that parties to a contract are generally free to impose whatever conditions they wish on their contractual undertakings and that if such conditions are not literally met or exactly fulfilled, no liability can arise on the promise qualified by the conditions. 13 Samuel Williston & RICHARD A. LORD, A TREATISE ON THE LAW OF Contracts §§ 38:2, at 370-71, 38:6, at 384-85 (4th ed. 2000) [hereinafter Williston on ContRacts]. However, it is also “well established that a party to a contract may waive a condition precedent to his or her own performance of a contractual duty, even in the absence of a provision in the contract expressly authorizing a waiver.” 13 Williston on Contracts § 39:17, at 568-69; see American Cent. Ins. Co. v. McCrea, Maury & Co., 76 Tenn. 513, 525, 1881 WL 4452, at ⅞6 (1881) (“it is in the nature of a condition precedent to be subject to waiver”). This is so even where, as here, the contract contains a clause stating that the entire agreement will be null and void if the condition is not met. 13 Willi-ston on Contracts § 39:17, at 568-69. If, in spite the failure of the condition precedent, the party in whose favor it was drafted performs or receives performance under the contract, the condition precedent is waived. 13 Williston on Contracts § 39:17, at 569; 8 Catherine M.A. McCau-liff, Corbin on Contracts § 40.4, at 533 (Joseph M. Perillo ed., rev. ed. 1999) [hereinafter Corbin on Contracts]. The contract will be enforced despite the nonoccurre