IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 29, 2014 Session

MASTON G. LYONS, III, ET AL. v. FIELDING H. ATCHLEY, JR.

Appeal from the Circuit Court for Hamilton County

No. 09 C 1561 Lawrence H. Puckett, Judge Sitting By Interchange

No. E2013-02342-COA-R3-CV-FILED-JANUARY 20, 2015

Maston G. Lyons, III and Linda C. Lyons (“Plaintiffs”) sued attorney Fielding H. Atchley,

Jr. (“Defendant”) alleging, in part, that Defendant had breached a duty that “cost the

Plaintiffs their fair and complete hearing in Lyons v. Leffew et al.,” and that the alleged

breach had “costs [sic] the Plaintiffs their fiduciary interest in said case.” Both sides filed

motions for summary judgment. After a hearing on the parties’ motions, the Circuit Court

for Hamilton County (“the Trial Court”) granted Defendant summary judgment. Plaintiffs

appeal the grant of summary judgment and the award to Defendant of attorney’s fees for

defending against Plaintiffs’ Rule 11 motion for sanctions. We find and hold that Plaintiffs

sustained no damage as a result of the alleged action or inaction of Defendant and, therefore,

the Trial Court did not err in granting Defendant summary judgment as a matter of law. We

further find and hold that the Trial Court did not abuse its discretion in awarding reasonable

attorney’s fees to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions. We

affirm the Trial Court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

Case Remanded

D. MICHAEL SWINEY,J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., C.J., and JOHN W. MCCLARTY, J., joined.

Maston G. Lyons, III, and Linda C. Lyons, Hixson, Tennessee, pro se appellants.

Arthur P. Brock, and William J. Rieder, Chattanooga, Tennessee, for the appellee, Fielding

H. Atchley, Jr.
OPINION

Background

Defendant represented Mrs. Lyonsin a legal matter involving Sylvan Learning

Center, which was concluded in early 2007. During that representation, Mrs. Lyons

consulted with Defendant about another case, Lyons v. Leffew, a previously existing case that

Plaintiffs had filed pro se seeking specific performance of an alleged contract for the sale of

real property. Plaintiffs assert that they hired Defendant to represent them in Lyons v. Leffew.

Defendant asserts that Plaintiffs consulted him, but never actually hired him with regard to

Lyons v. Leffew.

Plaintiffs learned in March 2009 that a default judgment against them had been

entered in July of 2008 in Lyons v. Leffew. Plaintiffs filed suit against Defendant in

December of 2009 alleging that Defendant had breached a duty that “cost the Plaintiffs their

fair and complete hearing in Lyons v. Leffew et al.,” and that the alleged breach had “costs

[sic] the Plaintiffs their fiduciary interest in said case.”

Both Plaintiffs and Defendant filed motions for summary judgment. After a

hearing, the Trial Court entered its order on November 26, 2012 granting Defendant

summary judgment after finding and holding, inter alia, that “the failure of [Defendant] to

pursue Lyons v. Leffew on [Plaintiffs’] behalf as a matter of law and in fact (as undisputed

in the material facts before the court) did not cause plaintiffs any loss.”

On December 19, 2012 Plaintiffs filed a motion to alter or amend and a motion

seeking sanctions against Defendant’s attorney pursuant to Tenn. R. Civ. P. 11. In the

motion for sanctions Plaintiffs state, among other things:

The Plaintiffs state that because of the defense’s meritless [sic] filings

valuable resources have been wasted in the process. The defenses’ [sic]

continuing claims of legal malpractice while the plaintiffs were claiming no

work was done to utilize [Defendant’s] legal expertise and the plaintiffs’

Complaint based in tort and now the defense’s unsubstantiated claims in

reference to the underlying case of Lyons v. Leffew demonstrate the lack of

reasonable inquiry into all the facts and the law.

After a hearing the Trial Court entered its order on March 14, 2014 denying

both Plaintiffs’ motion to alter or amend and Plaintiffs’ motion for sanctions. In the March

14, 2014 order the Trial Court also awarded Defendant reasonable attorney’s fees of

$1,271.00 for opposing Plaintiffs’ motion for sanctions. Plaintiffs appeal to this Court.

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Discussion

We restate the issues on appeal as: 1) whether the Trial Court erred in granting

summary judgment to Defendant, and 2) whether the Trial Court erred in awarding attorney’s

fees to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions.

We first address whether the Trial Court erred in granting summary judgment

to Defendant. As this case was filed prior to July of 2011, we utilize the summary judgment

standard as reiterated by our Supreme Court as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are notsufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

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S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

The parties disagree as to the gravamen of Plaintiffs’ claims. Defendant

classifies the claims as sounding in legal malpractice. Plaintiffs assert that their claims sound

in fraud and misrepresentation and not legal malpractice. In either instance, Plaintiffs in

order to prevail would be required to show that they suffered damages as a result of the

alleged actions or inaction of Defendant. Plaintiffs assert that the alleged actions or inaction

“cost the Plaintiffs their fair and complete hearing in Lyons v. Leffew et al.” Thus, Plaintiffs

to be successful in their claims against Defendant must prove that if not for Defendant’s

alleged actions or inaction Plaintiffs more than likely would have been successful in Lyons

v. Leffew.

In Lyons v. Leffew, Plaintiffs sought specific performance of a contract for the

purchase of real property. In its order granting Defendant’s motion for summary judgment

in the case now before us, the Trial Court specifically found and held, inter alia:

Plaintiff’s lawsuit against [Defendant] fails because the failure of

[Defendant] to pursue Lyons v. Leffew on their behalf as a matter of law and

in fact (as undisputed in the material facts before the court) did not cause

plaintiffs any loss.

This conclusion arises from the simple fact that, with or without

[Defendant], plaintiffs could not prevail on the merits of their claims brought

in Lyons v. Leffew. The basis for the conclusion that plaintiff’s claims against

the defendants in Lyons v. Leffew lack merit follows.

* * *

It is undisputed that no enforceable written contract for the sale of

Leffew’s property was in force after the closing date of September 1, 2005

passed.

The contract reads:

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19. Closing Date: This contract shall be closed and the deed and

possession shall be delivered on or before the 1st day of

September, 2005, unless extended by other provisions of this

contract.

and

21. Other agreements: No agreements or representations, unless

incorporated in this contract, shall be binding upon any of the

parties.

In paragraph 3 of defendant’s statement of undisputed facts which

plaintiffs admit, it is undisputed that:

On September 1, 2005, plaintiffs had not secured either

the necessary financing to pay the purchase price of the property

[$115,000.00], nor had they conducted the requisite appraisal on

the property. Deposition of Linda Lyons’ (“L. Lyons’ Depo.”)

. . . p. 33.

and in paragraph 4 of the defendant’s statement of undisputed facts:

4. Therefore, the closing did not occur on September 1, 2005.

L. Lyons Depo., p. 63.

Plaintiffs denied paragraph 5 of defendant’s statement of undisputed

material facts that states:

5. Following the Lyons’ failure to perform on the contract, Mrs.

Lyons’ [sic] stated that the terms of the contract were orally

altered. L. Lyons [sic] Depo., p. 67

However, plaintiffs explain their dispute of this fact in their response

to defendant’s statement of undisputed material facts:

5. Denied. The reference is of page 67 of the L. Lyons’

deposition, yet there is no discussion of when the closing date

was changed in that reference. One week after signing the

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contract, the Lyons’ told Leffew about significant structural

issues with the property not observable at showing. Leffew said

she did not have the money to repair the property but wanted the

Lyons’ to complete the work and they agreed the cost would be

about $10,000.00 which would be credited toward the purchase

price. It was agreed the appraisal could not take place or closing

occur on the previously anticipated date, and the date would be

chosen after the work was completed.

Therefore, it is undisputed that more than the time of closing was orally

changed. Therefore, the line of cases cited by plaintiffs in support of the legal

proposition that the written contract survives the oral modifications are [sic]

not applicable to the Leffew / Lyons’ written sales contract involved in Lyons

v [sic] Leffew. That written contract, as allegedly orally modified, is not

enforceable as a matter of law. An oral agreement putting off the date of

closing is not all that is alleged by Plaintiffs nor supported by the undisputed

facts. Rather, plaintiffs allege an oral modification that altered the conditions

of sale so that plaintiffs could effect repairs to the premises approximated by

the parties to be around $10,000.00 and provided further that the cost of

repairs would be credited on the purchase price. Also the time in which

plaintiffs were to complete appraisal of the property was changed to occur

after the repairs were completed. Paragraph 6 of defendant[’]s undisputed

material facts is admitted by plaintiffs:

6. Admitted that the agreement was that the Lyons’ [sic] would

use the $10,000.00 to make the necessary repairs to the property

for the appraisal and owe the remaining $105,000.00 to Leffew

with receipts, making $115,000.00.

Plaintiffs cite the case of Davidson v. Wilson 2010 Tenn. App. LEXIS

393. However, the holding in that case does not support plaintiffs’ contention

that the oral modifications to their written contract with Leffew are

enforceable.

In Davidson, the court held that “the parties’ oral agreement would be

unenforceable . . . because it did not merely change the time for performance

of the contract.” The court noted that “In addition to extending the closing

date until the Davidson’s concerns with the closing documents could be

adequately addressed, the parties verbally agreed to obtain a survey of the land

described and to adjust the purchase price based on results of the survey.”

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Similarly, plaintiffs’ alleged oral modifications to the written sales contract

with Leffew added a provision for the house to be repaired at plaintiffs’

expense up to an unspecified amount but estimated to be around $10,000,00

[sic] and for the purchase price to be adjusted accordingly based on repairs.

One can hardly imagine a scenario of dealings between parties that would

more completely bespeak the wisdom of the statute of frauds than this one.

The potential for fraud between one or another of the parties based on

the alleged oral modifications are too numerous to recount. However, for

starters, what if repairs were done by plaintiffs without charge by a third party?

How would the parties ascertain the value of the repairs and ascertain

plaintiffs’ credit on the purchase price? Or could plaintiffs have forgone

making any repairs and enforced a purchase price that nevertheless, reduced

the purchase price by $10,000.00. If receipts for repairs exist they are not a

part of the record before the court. It is sufficient for the court here to

conclude, as the court in Davidson concluded, that the modifications [as

alleged] changed the essential terms of the contract, such that the changes to

the contract are required by law to be in writing pursuant to the statute of

frauds. Therefore, the alleged contract for which plaintiffs seek specific

performance against Leffew in Lyons v. Leffew and in this case Lyons v.

Atchley is not enforceable.

As pertinent to the issue before us, the statute of frauds provides:

29-2-101. Writing required for action.

(a) No action shall be brought:

* * *

(4) Upon any contract for the sale of lands, tenements, or hereditaments, or the

making of any lease thereof for a longer term than one (1) year; or

* * *

unless the promise or agreement, upon which such action shall be brought, or

some memorandum or note thereof, shall be in writing, and signed by the party

to be charged therewith, or some other person lawfully authorized by such

party. In a contract for the sale of lands, tenements, or hereditaments, the party

to be charged is the party against whom enforcement of the contract is sought.

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Tenn. Code Ann. § 29-2-101 (2012).

In the case now before us, the Trial Court found that there was no dispute that

“no enforceable written contract for the sale of Leffew’s property was in force after the

closing date of September 1, 2005 passed.” The Trial Court also found that the agreement

for which Plaintiffs were seeking specific performance in Lyons v. Leffew was an oral

agreement not reduced to writing for the sale of land and, therefore, was unenforceable, and

that this was undisputed. We agree with the Trial Court.

The statute of frauds, Tenn. Code Ann. § 29-2-101, requires that an action for

the sale of real property may not be sustained absent a writing “signed by the party to be

charged therewith, or some other person lawfully authorized by such party.” Tenn. Code

Ann. § 29-2-101 (2012). As the actual agreement that Plaintiffs sought to enforce in Lyons

v. Leffew was an oral agreement for the sale of real property and not the original written

agreement between the Plaintiffs and Leffew, Plaintiffs, as found by the Trial Court, could

not have prevailed in Lyons v. Leffew. As such, the outcome of Lyons v. Leffew would have

been no different had Defendant taken the actions Plaintiffs allege that Defendant should

have taken. Given all this, Plaintiffs simply cannot prove any damages in the case now

before us.

Defendant demonstrated that Plaintiffs cannot establish an essential element

of their claim, damages. There are no genuine disputed issues of material fact, and

Defendant was entitled to summary judgment as a matter of law. We find no error in the

Trial Court’s grant of summary judgment to Defendant.

Next, we consider whether the Trial Court erred in awarding attorney’s fees

to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions. We review a trial court’s

decision on a Rule 11 motion for abuse of discretion. Brown v. Shappley, 290 S.W.3d 197,

200 (Tenn. Ct. App. 2008). In pertinent part, Tenn. R. Civ. P. 11 provides that “the court

may award to the party prevailing on the motion the reasonable expenses and attorney’s fees

incurred in presenting or opposing the motion.” Tenn. R. Civ. P. 11.03(1)(a).

The Trial Court found that Plaintiffs’ Rule 11 motion for sanctions was not

well taken. Plaintiffs have pointed to nothing in the record on appeal that supports their

assertion that Defendant filed “motions, pleadings and other papers that are frivolous and

inconsistent with the facts and laws in regard to this case.” After a careful and thorough

review of the record on appeal, we find no abuse of discretion in the Trial Court’s decision

with regard to this motion. We further find no abuse of discretion in the Trial Court’s award

to Defendant of reasonable attorney’s fees for opposing Plaintiffs’ Rule 11 motion for

sanctions.

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Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

appellants, Maston G. Lyons, III, and Linda C. Lyons, and their surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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