# FILED

Novemb er 7, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

DAVID VIA and wife, PATTY VIA, ) ) Plaintiff s/Appella nts, ) Carroll Chancery No. 9100 ) vs. ) ) JIMMY JOE WELCH, HERMAN ) Appeal No. 02A01-9507-CH-00157 REED and TOMMY REED, ) ) Defend ants/Appe

llees. )

APPEAL FROM THE CHANCERY COURT OF CARROL L COUNTY AT HUNTINGDON , TENNESSEE

THE HONORABLE WAL TON WEST, CHANCELLO R

For the P laintiff s/Appella nts : For the Defendants/Appellees : Charles M. Agee, Jr. Douglas W. Wilkerson Dyersburg , Tennessee Dyersburg , Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCUR:
W. FRANK CR

AWFORD, P. J., W.S.
AL AN E . HI GHE RS, J
.OPINION

This is a suit br

ought by Pl aintiffs -Appella

nts, David

Via and his wife Patty Via (“Vi a”) , agains tDe fe nd an ts -A pp el le es , J im my J oe Welch, Herman R eed and Tommy Reed (c ollective

ly “Welch”). In thi s appeal, Via seeks to revive a decr ee for specific performanc e entered by this Court
on August 28, 1984. Specific p erforma nce is n o longe

r availa ble since the prope

rty was lost to foreclosure. Via now seeks to have the decree r evived and converted to a judgment for money damage s. The trial court ruled that Via is not entitled to t he relief sought and dismissed Via’s lawsuit. We

affirm. The tri al court entered a Memorandum Opinion which concisely recites the facts and explain s the applica

ble law. We

agree with the decisi on of t he trial court and adopt its Memorandum Opinion:

The Plai ntiff s have filed a Comp laint seeki ng to s et dam age s ari sing out of the Defendants’ alleged fa ilure to comply with a prior cour t jud gment for

specific performance of a contract for the sale of land. Ap pa re nt ly, it is undispu

ted that a s to Defendants Herman Reed and Tommy Reed, the Plaintiffs are barred from seeking relief as to these Def endants as any

claim ag ai ns t t he m h as be en di sc ha rg ed by b an kr up tc y. As to the Defendant Jimmy Joe Welch, he insists the Plaintiffs are not entitled to money damag es as n one wer e awar ded in the

judgmen

t directing spec ific performance. The par ties have entere d into a “Join

t Stipulatio n of Facts” as fo llows: 1. Plaintiffs filed a lawsuit for a breach of contract for the sale of real estate in 1983, asking for specific performanc e. 2. In August, 1984, the Civi l Court Of Appeals For The Western Section reversed the trial court and ordered the Defenda nts to specifically per

form the contract sale of real estate. 3. That neither Plaintiffs nor Defendants took any action after the Court of Appeals award o f specif

ic performance, prior to Plaintiffs filing the Complaint For Revivor [July 1994] and the Motion for the court to determine the specific amount of money owed by Defend ants to Pla

intiffs. 4. There w ere two p ayments in the amount of Twenty-Seve n Thousand ($27,000.00) Dollars each ma de by the Defe ndants to Plaintiffs after the execution of the contr act for sale of r eal esta te and no other pay

ments wer

e made by Defend ants to Plaintif fs.2 5. On December 16, 1986 the Plainti ff lost title to property by

foreclosure. Subseque ntly , Jeff Via , the Plain

tiff’s so n, purch ased the

propert y f rom Small Busines s Administration, and on November 3, 1988 sold the pr operty to J. R. Wilson for the sum of Eighty -Seven Thousand Four Hundred Eighty -Three ($87,483.00) Dollars which is recorded in Deed Book 235, Pag e 24 in the Register’s Office for Carroll County ,Tennessee. B y entering into this stipulation, neither party waives the right to present more detailed information regarding the foreclosure and subsequent resale of the prope

rty for the purpose of determining what damag es, if any, the Plaintiffs have suffered. 6. The Plaintiffs never rented or collected any monies from the farm after the Defendants breached their contra ct through the foreclosure sale. 7. S ince the

entry of the jud

gment by the Court o f Appea

ls for sp ecifi c performance

that neither Plaintiffs nor

Defend ants have

attempte d pursuan

t to Rule 70 of the Tennessee Rules of Civil Procedure or any other process to havetitle vested outof Plaintiffs and into Defe nd ants nor have the Plaintiffs attempted to obtain a judgment for money

damages. CONCLUSION No authority has bee

n submitted to the court as to how a decreefor spec ific performance

agains t a purch aser is to

be enfor ced. The Tenness ee case s dealing

with the subject of specific performance by and large address enfor

cement against vendors which can be readily

accomplished by divestiture of title, if ne ce ss ar y. In the instant case, the Court o f Appea

ls decision granting specific per formance remanded

the case to the trial court “for any

further orders consistent with this opinion.” Ini ti al ly, this co u rt is of the opinion that it is limited to enforcing the Order of the Court o f Appea

ls directing specific performanc e. However, at this juncture, this court cannot

direct sp ecific p erforma

nce as th is is no longer possible in that the De fe nd an ts no lo ng er ha ve ti tl e t o t he pr op er ty. The question t

hen pres ented is whether the Plaintiffs are entitled to damages considering the developments in the case. Before a seller can claim damagesfor refusal of perfor mance, t he selle r must show a satisfactory

tender of that which was to be purchased. Massey v. Hardc astle

, 753 S.W.2d 127, 140 (Tenn. App. 1988). In the instant ca se, the Plaintiffs made no effort through any

proce edings su bsequent to the Court of Appeals’ decision to tender a deed to Defendants for a period of ove r two ye ars, at w

hich time t

heir pro perty title was lost due to foreclosure. Following the remand to this court by the Court of Appeals, the court is of the opinion there s houl d have been a req uest by Plaintiff s for fur ther ord ers fro m this court directing a deposit of the sales price by the purchaser and tender of the deed by the sellers within a

specified time. This type of procedure is apparently recognized in the case

of Texas Co. v. Aycock , 227 S.W.2d 41, 47 (Tenn. 1950) [cit ing Bradford v. Forrester , 87 Tenn. 4 (1888)]. As the Plaintiffs made no effort to have the decree of specific performance enfor ced within a

reasona ble time, the court is of the opinion they are not n ow entitle d to damag es due to t heir ina bility to prese ntly comply with the Court of Appeals’ decision directing specific pe rformance.3

The decision

of the tri al court

is affir med. Co sts ar e taxed to the Appellant, for which
ex ec ut io n m ay i ss ue , i f n ec es sa ry. HOLLY KIRBY LILLARD, J. CONCUR:
W. FRAN K CRAWF ORD, P.J., W.S.
ALAN E. HIGHERS, J.