# FILED May 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk DWAYNE HAWKINS and AL ) GOSSETT, ) Davidson Circuit ) No. 96C-2528 Plaintiffs/Appellants

, )

) VS. ) ) PATRICK A. HAR

T, SUPERIOR ) MOTORS, INC., NELSON BOWERS, II, ) and BOWERS TRANSPORTATION ) GROUP, LLC, ) Appeal No. ) 01A01-9707-CV-00294 Defendants/Appellee

s. ) IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE BARBARA N. HAYNES, JUDGE

Steven A. Riley, #6258 BOWEN , RILEY, WARN OCK & J ACOBS ON, PLC 1906 West End Avenue Nashville, TN 37203 ATTORNEY FOR PLAINTIF FS/APPELLANTS John P. Branham, #2552 Kathryn Barnett, #15361 BRANHAM & DAY,

P.C. 150 Fourth Avenue

North First Union Tower, Suite 1910 Nashville, TN 37219 ATTORNEY FOR DEF

ENDANTS/APPEL

LEES, PATRICK A. HART and SUPERIOR MOTORS, INC. H. Wayne Grant, #1573 David M. Elliott, #17966 GRANT, KONOAL

INKA & HARRI

SON, P.C. Suite 900 Republic Centre 633 Chestnut Street Chattanooga, TN 37450 ATTOR NEYS F OR APP ELLEES, NELSON E. BOW ERS, II and BO WERS TRANS PORT ATION G ROUP, LLC MODIFIED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

DWAYNE HAWKINS and AL GOSSETT,) ) Plaintiffs/Appellants

, )

) VS. ) Davidson Circuit ) No. 96C-2528 PATRICK A. HAR

T, SUPERIOR ) MOTORS, INC., NELSON BOWERS, II, ) and BOWERS TRANSPORTATION ) GROUP, LLC, ) Appeal No. ) 01A01-9707-CV-00294 Defendants/Appellee

s. ) 

### O P I N I O N This appeal represents a consolidation of two appeals in the same case by

order of this Courtentered on October 22, 1997, since which time the captioned number has appeared on all proceedings.

The se c onsolidated appe als are from ruli

ngs of the Trial C

ourt in a single c

ase involving the efforts of plaintiffs to purchase an automobile dealership. The issues are be st understood from a

detailed narra

tion of the facts a

nd subsequent proc

eedings.

Patri ck Hart is a wealthy Seattle businessman. In Februa ry 1993 he struck

up a conversation with Mark Chmelar a t a yacht show in Miami. Mr. Chme lar owned automob

ile dea lerships in Nashville and Tallahassee. Mr. Chmelar suggested that Mr. Hart acqui re a n interest in the Nashville

dealership, and Mr. Hart

eventually agreed even though he ha d no prior experience in the automobile business. Acco rdingly, in November 1993, Mr. Hart acquired a 50% interest in Superior Motors, Inc. Mr. Hart agreed that Mr. Chmelar would co ntinue to manage the day-to-day opera tions of the dealership. At the outset, the arrangement proved satisfactory

enough that Mr. Hart agreed in mid-1995 to purchase an interest in another automobile dealership owned by Mr. Chmelar in Tallahassee, Florida.

Fi rst Tennessee Bank informed Mr. Hart in March 1995, that the Superior Motors d ealership

in Nashville was $1,000,000 out of trust on its floor plan loan. Even though M r . Chmelar assured Mr. Hart that there were no p roblems w ith the dealership, Mr. Hart received another call from the bank in June 1995 stating that the dealership was now $1,600,000 out of-3-

tru st. During t he next two months, Mr. Hart discovered that Mr. Chmelar had purchased an airplane using Superior Motors credit, that the dealership’s tax r eturns reported that the dealership

had sustained a $714,000 operating loss, and that Mr. Chmelar had b een p ayi ng himself an annual salary of $351,357 rather than the $144,000 agr

eed upon. Finally

, in August 1995, First Tennes see Bank inform ed Mr. Hart that it intended to call his letter of credit and require him to honor his pers onal guarante

e unless the deale

rship’s financial p roblems were quickly rectified.

Mr. Hart realized tha

t he was in a prec

arious situation be

cause the Nashvi

lle dealership
was $3,500,000 in

debt. He decided to g

et out of the automo

bile business as qui

ckly as he c

ould andretained James Cam

eron, a lawy

er in Nashville, to assis

thim in resolving th

e problem with the Nashville dealership. On September 5, 1995, Mr. Hart faxed Mr. Chmelar a letter stating that he had discovered t

he financial irr

egularities at t

he dealership

and that intended to remove Mr. Chmelar as president of the corporation.

In the meantime, Mr. Chmelar had entered into discussions abou t the sale o f the Tallahassee dealership with D wayne Haw

kins, a Florida bu

sinessman enga

ged in the automo

bile business, and his partner, Al Gossett who lived in Memphis . Mr. Gossett and Mr. Hawkins were interestedin purchasing not only the Tallahassee dealership b ut als o the Nashville dealership. On September 7, 1997, Mr. Gossett telephoned Mr. Hart in Seattle to inform him that he and Mr. Hawkins were intereste

d in acquiring bo

th dealerships. Seeing this as an opportunity to get out of the automobile busi

ness quickly

, Mr. Hart agre

ed to meet in

Memphis on September 10, 1995 to discuss the sale of the dealerships. Mr. Gossett and Mr. Hawkins agreed to make an offer for bothdealerships, and during the evening of September 10, 1995, Mr. Gossett telephone Mr. Hart in Nashville to inform hi m that he would present an offer to purchase the two dealerships the next day.-4- On the morning of September 11, 1995, Mr. Hart

and Mr. Gossett

met over breakf

ast in Mr. Hart’s hotel room, and Mr. Gosse tt presented Mr. Hart with proposed contracts to acquire boththe Tallahassee and the Nashville dealerships. After negotiating several of the ter ms and interlineating several changes in the documents, both Mr. Hart and Mr. Gossett signed two sets of contract documents -one set pertaining to the Tallahassee dealership and the othe r set pertaining to the Nashville de alership. Each s

et of documents

consisted to an “Agreement for the Purc hase and Sale of As sets” and an “Agre ement for Interi m Manage

ment Agr eement” [ sic]. After Mr. Hart executed the agreements, Mr. Gossett obtained Mr. Chmelar’s signature on bot h sets of agreem

ents.

Mr. Hart and Mr. Gosse

tt met later in the day with Mr. Hart’s lawyer, Mr. Cameron. Mr. Hart informed Mr. Cameron “I got this thing solved. Here are two ag reements. T hey’re

all signed, put to bed, and I can go home.” After Mr. Gossett left to go to the Nashville dealership, Mr. Cameron informed Mr. Hart that the contracts were

not financially advantageous to him and that he could get a higher price for the dealerships. Late r, Mr. Cameroninformed Mr. Hart that there was not enough money for Hart in the deal and that “ the agreements would not work.”

On September 12, 1995, Mr. Cameron sought Mr. Gossett’s assistance in convincing Mr. Chme larto relin quish his stock in the Nashville dealer

ship. Mr. Gossett wa

s willing to help because he maintained a c

ordial relationsh

ip with Mr. Chmelar

and because he understood that his contract to purc

hase the Nashville

dealership would

be worthless if

the bank foreclosed. Mr. Gossett convinced Mr. Chme

lar to relinquish his

stock for $1,000 a

nd Mr. Hart’s ag

reement to pay their joint obligation to the bank. Mr. Ch melar conveyed his shares to Mr. Hart on September

12, 1995, and on September 13, 1995, Mr. Gossett terminated Mr. Chmelar as president of both deal erships wi th Mr. Hart’ s blessing.

On September 14, 1995 , Mr. Cameron dema nded that Mr. Gosse

tt release the ag

reements to sell both the Tallahassee and the Nashville dealership. He stated that Mr. Har t w ould not-5-

consider performing or e

ven amending the

agreements un

less Mr. Gossett

agreed to release the agreements executed on September 11, 1995. Mr. Gossett declined to sign a release.

Mr. Hart eventually

sold the Tallahass

ee dealership to

Mr. Gossett and Mr.

Hawkins in February 1996 based on an amended version of the agreement signed on September 11, 1995. They never finalized

the agreement concerning the Nashville dealership because Mr. Ha rt had entered into negotiations with Nelson Bowers, II, an automobile

dealer from Chat

tanooga, to sell the dealership f

or a price high

er than the price

agreed to in the September 11, 1995 agreement withMr. Gossett. When Mr. Gossett lea rned of these ne

gotiations, he inf

ormed Mr. Bower

s in
a June 25, 1996 letter that he was seeking to close his Septem ber 11, 1995 co ntract with Mr. Hart.

On July

8, 1996, Mr. Gossett and Mr. Hawkins filed suit against Mr. Hart and Superior Motors, Inc. in the Chancery Court for Davidson County

seeking to enforce the September 11, 1996 contract. They sent a copy of their complaint to Mr. Bowers several weeks later. Despite the notice of the cont

ractual disp

ute, Mr. Bowers sig

ned a contract o

n August 16, 1996,

to purchase the Nashville dealers hip. Mr. Bowers late r assigned his int

erest in this contr

act to European Motors, Inc., a company in which he owns a 50% interest. On September 19, 1996, Mr. Goss ett and Mr. Hawkins filed an amended complaint adding Mr. Bowers and Bowers Transportation Group as defendants. On October 17, 1996, Mr. Hart and Superior Motors, Inc. conveyed the assets of the d

ealership to Euro

pean Motors,

but Mr. Bowers also required Mr. Hart to agree to indemn

ify him and Eu

ropean Motors ag

ainst any cl

aims b y Mr. Gossett and Mr. Hawkins.
Following substantial discovery, Mr. Hart and Superior Motors, Inc. moved for summary judgment on the ground that the September 11, 1995 A greement for the Purchase and Sale of Assets was too uncertai

n and indefinite

to be enforced. Specifically, they based their def ense on two provisions of the contract -one that left the negotiation of the lease of the premises open for-6-

future negotiation and another providing that the parties would later agree upon a price for the Nashville dealership’s inventory of new vehicles. Mr. Hart al so as serted that he could not be held personally liable on

the contract even though he had signed it as guarantor. Mr. Bowers and his corporations also move d for summ ary judgment on the constructive trust claim. The trial court granted both motions in orders entered on April 21 and 28, 1997. The trial court

reasoned that the September

11, 1995 agree

ment was too indefi

niteto be enforceable under Florida law andthat impressing a constructive trust on the assets of Superior Motors was not an a

ppropriate equitable remedy. Th

e trial court did no

t specifically

addressthe issue of Mr. Hart’s liability as guarantor of th

e September 11, 19

95 contract.
Summary judgment is not a substitute for the trial of disputed factual

issues. Taylor v. Nashville Banner Publishing Co ., Tenn. App. 1978, 573 S.W.2d 476; Cert. Den. 441, U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396; Gonzales v. Allman Constr. Co ., Tenn. App. 1993, 857 S.W.2d 42.

A summary judgment is to be rendered on ly when it is shown that there is no genuine issue as to a material fact and that the moving party

is entitled to a judgment as a matter of law. Daniels v. White Consol

idated Industries, Inc. , Tenn. App. 1985, 692 S.W.2d 4 22; Blazer Fin. Svcs., Inc., v. D

iddle , Tenn. App. 1983, 648 S.W.2d 257.

On appeal, no presumption of correctness attaches to deci s ions granting summary judgment, because they involve only questions of law. Hembree v. State, T enn. 1996, 925 S.W.2d 513.

The imposition of sancti

ons or discretiona

ry costs is subject to the discretion of the trial court, but is also subject to review on appeal, and a reversal is justified where the result is clearly
erroneous. Baker v. Nationwide Mutual Fin. Ins. Co. , Tenn. App. 1982, 646 S.W.2d 440.-7- In the order of their priority, the principal issues p

resented to

this Court appear to be as follows: 1. Does the September 11, 1995 agreemen t for the purchas

e and sale of the a

ssets of the Nashville de

alership evidenc

e an enforcea

ble contract?
(This agreement was executed in Tennesse e, its subject matter was Tennessee property and it was to be per

forme d i n Tennessee. Nevertheless, paragraph 22 of the agreement pro

vides:
22 Governing La w: the laws of the St ate of Florida sh

all govern all question s concerning the construction, validity, and interpretation of this agreement.)
In Truly Nolen Inc. v. Atlas Moving & Storage Warehouse, Inc ., Fla. App.3d,1961, 125 So.2d 903, a contra

ct requirin

g plaint iff to pay the cost of “an appropriate advertising sign” was held unenforceable for vagueness as to size or specifications of the sig n.

Plaintiff cites Blackhawk Heating. & Plumbing, Inc., v. Data Lease Fin. Corp. , Fla., 1974, 302 S.W.2d 404, wher ein plaintiff brou

ght a suit for specific performance of an option to purchase bank st

ock. The Trial Cou

rt denied specif

ic performance. The intermediat e court affirmed.

The Supreme Court r

eversed and sai

d: Data Lea se rel ies upon Truly Nolen, Inc. v. Atlas Moving and Storage Warehouse, Inc., 125 S o.2d 903 (Fla.App.3d , 1961), writ discharged 137 So.2d 568 (Fla.1962), which holds that if an agreement is so vague and uncertain in t he specifications of the subject matter that the Courtcannot identify

that s ubjec t matter or deter mine its qua lit y, quantity or

price, it will be unenforceable . This case involved “a late

nt a mbiguity in the meaning of an essential word,” which was not reconciled by con stru ction of the parties.

- - - - “[T]he fact that anexecutedwritten contract contains within itself difficulties of constructionab out which the parties disagree does not enable the parties to contend that the minds of the parti es never met , since by signi ng t he writing the parties bind themselves to such interpretation as the court may place upon the words and sy mbols employed by them.” 17 Am.Jur.2d, Contracts, § 22, at 359.-8- [5] Even though all

the details are not de

finitely fixed, an agreement may be binding if the pa rties agree on the essential terms a

nd seriously

understand and in

te nd the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validi ty of t he contract or indicate the minds of the parties didnot meet

with respect thereto. 17 C.J.S. Contracts § 31. The aforementioned rule of law has been codified with respect to sales , with the adoption in Florida of th

e Uniform Commercial Code. Fla.Stat . § 6 72.2-204, F.S.A. How e ver, the statute relates to a contract for the sale of goods. “(1) a

contract for sale of goods may be made in any manner s uff icient to show agreement,

including conduct by both parties which recognizes the existence of s u ch a contract. “(2 ) An agreement sufficient to constitut e a contract for sa

le may be found even t hough the moment of its making is undermined. “(3) Even though one or

more terms are lef

t open a contract for

s ale does not fail for indefiniteness

if the parties have intended to make a contract and there is a reasonably certain basis for

giving an appropriat

e remedy.” (Emphasis supplied.)

- - - - [7] As Professor Corbi

n stated in his trea

tise, Corbin on Contracts, Vol. I (1963), § 97, at 424: “I f the parties provide a practicable, objective method for deter mining this

price or compensation, notleaving it to the futurewill of th e p arties themselves, there is no such indefini ten ess or uncertainty as will prevent the agreement from being an enforceabl e contract.” The contract should not

be held void for uncerta

inty unle ss the re i s no oth er wa y out . As was sta ted by J ustic e Cardozo in Heyman Cohen &

Sons, Inc. v. M. Lurie Woolen Co., Inc ., 232 N.Y. 112, 133 N.E. 370, 371, “ Indefinitene

ss must reach the point where construction becomes futile.” Again turning to

Professor Corbin, he states at § 95, page 400: “If partie

s ha ve concluded a tr

ansaction in whi ch it appears they intend to make a con t ract, the court should no t frustrate their intention if it

is pos sible to reach a fair and-9- just resul t, even tho ugh this requires a choice among conflicting meanings and the filling of some gaps that the parties have left.” Williston on Contracts, (3rdEdition, 1968), Vol. 11, § 1424, page 813,

states: “The law does not favor, but leans against the destru ction of contracts becau se o f un cert ain ty; and it will, if feasible, s o construe agreements as to carry into effect the reasonable

intentions of the pa

rties if that can be ascertained.” Processor Corbin again states at § 95, page 396: “In cons id ering expression s of agreemen

t, the court must not ho ld the parties to some impossible, or ideal, or unusu al stan dard. It must take language as it is and

people as they are. All agreements have some deg ree of indefin iteness and some degre e o f uncertainty.” Professor Williston states at page 819: “It seems probable that the difficulty regarding uncerta int y has bee n overemphasized; certainly, it sh ould not be allowed to hamper or restrict equitable relief further than necessity requires.” (Em phasis supplied.) In Stone v. Barnes-Jackson Co., Inc., 129 Fla. 816 , 176 So. 767 (1937), this C ourt held that specific performance

could be granted on an oral

contract to execu

te a lease “in the usual form customarily used in Miami.” The option agreement in the case sub judice was not so uncertain in its t

erms as to require dismissal of the specific performance suit. (Blackh awk

Heating and Plumbin

g Co., Inc. v. Data L

ease Financial Corp ., 302 So.2d at 408-09.)
In Jacksonville Port Authority v. Johnson , Fla .App. 1993, 624 So.2d 313, a contractor

sued the authority upon a work order to repair a crane . The orde r was l ater awarded to another

contractor. A jury found for the plaintiff. The appellate court reversed and said: 1,2 [w]hile it is not neces sary that a ll detail s of an a greement

be fixed in order to have a binding agreement-10- betweenparties, if there has been no ag reement as to essential terms, an enforceable c ontract does not e

xist. Williams v. Ingram , 605 So.2d 890, 893 (Fla. 1st DCA1992); Blackhawk

Heating and P lum bing Co., Inc. v. Da ta Lease Financial Corp ., 302 So.2d 404 (Fla. 1974). So long as any essential matters remain open for furth erconsideration, there is no com p letedcontract. In order to create a contract it is essential that there be reciprocal assent to a certain and definite proposition. Mann v. Thompson , 100 So.2d 634, 637 (Fla. 1st DCA1958). Failure to sufficiently

determine quali

ty, quantity, or price may preclu

de the finding of

an enforceabl

e agreement. See Blackhawk

H eating and Plumbing Co., Inc . at 408, citing TrulyNolen, Inc. v. Atlas Moving and Storage Wareh o use, I nc ., 125 So.2d 903 (Fla. 3d DCA1961), cert. discharged , 137 So.2d 568 (Fla.1962). [ 3] Where the partie

s are continuing

to negotiate

as t o these essential terms, t

here can be no me

eting of the minds
. CentralProperties, Inc. v. William H. Robbinson , 450 So.2d 277, 28 0 (Fla. 1st DCA 1984), modified, 468 So.2d 9 8 6 (Fla.1985). [4] In the instant case, while a general understanding may have existed in April of 19 89, concerning appellees’ continuedparticipation as to phase II I of the proje

ct, clearly no enforceable contract existed. The scope of the work contemplatedin pha se III was not presente d until late July

of 1989. Additions continue d to be made after that

time. There was never an agreed-upon price between the parties
. Correspondencebetween the par ties indicated that n egotiat ions between the par ties as to these ess

ential terms were continuing as late as January 1990. Letter s an d correspondence

from appellee confirm

that it still felt that

it h adnot been awarded these projects, but was still seek in g acceptance of its proposals. Under these circumstances, no binding agreement existed between the parties. ( Jacksonville

Port Authority v. Johnson , 624 So.2nd at315.)
It appears from the foregoing that the statutory and case law of Florida requires that the present controve

rsy be reso

lved in the light of

the intent of the pa

rties as expressed

in their written instrument

, but the severability of

the various under

takings must be de

cided in the light of the circumstances under which the instrument was signed.-11- Appellees insist that the document was hurri edly prepared and signed as an “agreement

to agre e. ” Whatever the br ief time frame of

discussion before

signing, it is uncontroverted

that there was time to have legal counsel prepare a 10-page document which was signed by

the parties afte

r numerous initiale

d interlineations.

Fo r the purpose of summary judgment, it cannot be found conclusively fr om th e present record that

no part of the buy-sell agreement contains a binding contract. Par agraph 21 of Exhibit A reads

as follows: 21. Severability : Wh e never possible, each p rov ision of this Agreement shall be interpreted in such manner as to be effective and

valid under applic

able law, and if any provis

ions of this Agreement are determined to be unenforceable

or illegal, such provisions shal l be deemed severed from the othe r p rovisions which sha ll remain valid and enforceable. According to this provision, a part of the agreement may be enfo

rceable even though other parts may not be enforceable.
By paragraphs 1.1, 1.2, 5.1 and 5.2, the partiesunequivocally agreed to the sale and purchase of spe

cified vehicles

at specified pric

es.

Unless the parties subsequently agreed upon prices of used cars, it does not appear that a binding ag

reement exists as to

used cars.

Unless the parti es subseq uently agreed upon a person to inventory the parts and accessories, it

does not appear t

hat there is a bind

ing agreeme

nt in regard to th

is asset.

It appears that the parties agreed upon t he prices of items mentioned in paragraphs 1.5, 1.6, 5.5 and 5.6.-12- A problem exists as to the clai m against Nelson Bowers, II and B owers Transportation Group, LL C. Before these d

efendants can b

e held liable, it mus

tappear that plaintiffs had an enforceable right to acq uire an a sset which was ac quired by the

se defendants.

A further problem exists regardi ng the right of plai ntiffs to discover

certain documents

in the possession of counsel for defendant,

Hart , in spi te o f th e ass ert ed at tor neyclient privilege and other

documen ts in the possession of the banks of Hart and Superior Motors. On April 21, 1997, the Trial Court entered the following order:

The matter came

before the Court

upon the motion of Defendants

Su peri or Motors, Inc. and Patrick A. Hart for summary judgment. Based upon the arguments of

counsel, the memorandum of law and supporting documents, the Courthereby g

rants the Defen

dants’ Motion for Su

mm a ry Judgmentand dismisses this ca se basedupon the following findings: 1. The parties e

nt ered into a contract on September

11, 1995 en titled “As set Purchas e Agr e ement” that called for theapplication of Florida law to all questions concerning th e construction, validity, and interpretation of the agreemen

t. 2. Under

Florida law, the prov i sions of the agreement

for the purchase of the assets were too uncertain andindefinite to be enforced. The plaintiffs, therefore, are n ot ent itled to enforce the purchase of the assets under the provisions of the Se

ptember 11, 1995 a

greement. WHEREFORE, it i s he reby ORDERED that the Defendants’ Motion for Summary Judgment is granted and this case is dismi sse d in its entirety with the costs taxed against the plaint

iffs and t heir sure ty for which exe

c ution may i ssu e, i f nec ess ary. On April 28, 1997, the Trial Court entered the following order:
ORDER The following motions w ere heard by

this Co urt o n December 6, 1996: 1) Plaintiffs’ Motion to Compel;-13- 2) Defendants Supe

rior Motors, I

nc.’s (“Superior

Motors”) and P atr ick A. Hart’s (“Hart”) Motion for

a protective Order and to Quash the Subpoena

of first TennesseeBank National Association (“First Tennessee”); 3) Motion of Harwell Howa rd Hyne Ga

bbert & Manner, P.C. (“Harwell

Howard”) to Modify Plaintiffs’ Subpoe

na Duces Tecum; 4) Motion of Harwell How ard for a Protective Order. After consideration of the motions, responses, replies and arguments b

y counsel, th

is Court ORDERS: Plaintiffs’ Motion to Compel Wit h r espect to Inte rrogatory #2 requ esting a description of with

he ld documents, Plaint

iff’s motion to comp e l is DENIED at this time. After the deposition of James Cameron, plaintiffs may for good cause re-petition th is Court to review in camera the withheld documen t s and/or to require that defe n dants provide the Court with a general description of the withheld docum ents and/or to grant any other further relief. With respect to Document Production Reques t #5 requesting person al financial statements, Defendant Hart shallproduce his most c urrent financial statement as of September

11, 1995 (including a

ll attachments

thereto) that was provided to First Tennessee. With respect to Document Production Request #22, Defendant

Hart shall produc

e transcripts of a

ll depositions in whi ch he w as deposed in any lawsuit that arise

s from his ownersh ip i nterest in Superio

r Motors that are i

n his po ssession or in the possession of his past or pr esen t attorneys. Superior Motors’ and Hart’s Motion for a Protective Order and to Quash the Subpoena of First Tennessee With respect

to Superior

Motors’ and Hart’s motion to quash and

motion for a protective order, the subpoena and notice of deposition of F

irst Tenness ee is mo dified to limit its scope as follow

s: 1) to include only documents dated , signed, received, sent out, o r cre ated during the periodfrom April 1, 1993 to September 15, 1995;-14- 2) t o exclude all personalfinancial documents of Hart except

the most curr ent personal financial state ment of Hart as of September 11, 1995. Motion of Harwell Howard t o Modify Plaintiffs’ Subpoena Duces Tecum Harwell Ho wa rd’s motion to modify plaintiffs’ subpoena is GRANTED. The sub

poena is modified t

o limit the scope of

the subpoena to exclude billing statements sent to Superior Motors and Hart. After the deposition of James Cameron, plaintiffs may for good cause re-p eti tion this Court to review in camera

the withheld docum

ents and/or to require that defendants provide the Cou rt with a general description of the withhel d doc uments and/or to grant any other further relief. Motion of Harwell Howard for a Protective Order Harwell Howard’s motion for a protective orde r is GRANTED. Plaintiffs’ counse l shall not ask

any questions at the deposition of

Harwell Howard’s custodian of records that are design

ed to elicit inform

ation regardin

g documents that were withheld onthe basis o f attorney-cli ent privil ege or work product doctrine. After the deposition of James Cam eron, plaintiff’s may for good cause re-petition thi s Courtto review in camera the withheld documents and/or to require tha t defendants provide the Court with a general description of the withhe ld do cuments and/or to grant any other further relief. During discovery, Messrs. Gossett and Hawkins subm itt ed interrogatories and a request for production of documents reque s ting both Mr. Hart and his lawyer to produce documents

and other materials that were discoverable under Tenn. R. Civ. P. 26. Mr. Hart responded

witha blanket refusal to provide the information on the ground that it was “not required by the Tennessee Rules of Civil Procedure.” Even though the defendants indicated that they were withholding two file boxes containing approximately two thousand pages of documents

basedon their

claim of privileg

e, the trial cour

t declined to orde

r the defendants to identi fy the document s they were with holding.

T he Tennessee Rules of Civil Procedure embody a broad policy favo ring th e discovery of relevant, nonprivileged information. See Pettus v. Hurst , 882 S.W.2d 783, 786 (Tenn. Ct. App. 1993). Since claims of privilege are contrary

to the general rule favoring-15-

dis cov ery, see Jaffee v. Redmond, 518 U.S. 1, ___, 116 S . Ct. 1923, 1 928 (1996), they should be construed narrowly, and the burden of establishing the existence of the priv ilege is on the party ass erting i t. See 4 James W. Moore, et. al., Moore’s Federal Practice ¶ 26.11 [1] (2d ed. 1996) (“Moore’s Federal Practice”). Accordingly , the courts should no t permit parties to use a bal d assertio n of privilege a s grounds for a w

holesale refusa

l to participate

in discovery. Instead,

they should require parties asserting a privilege to provide themwitha log or index of the materials being held under a claim of privilege in order to enable them to rule on the privilege claim. See 8 Charle s A. W right, et. al., Federal Practice and Procedure

§ 2016.1, at 230-235 (2d ed. 1994); Moore’s Federal Prac tice ¶ 26.11[1].

The purpose of th

e atto rney-clie

nt privilege invo

ked by Mr. Ha

rt is to shelter his communications with his lawyer. See Smith County Educ. Ass’n v. Anderson , 676 S.W.2d 328, 333 (Tenn. 198 4); Hazard v. Hazard , 833 S.W.2d 911, 914 (Tenn. Ct. App. 1991); Tenn. Code Ann. § 23-3-105 (1994). Mr. Cameron has beco me a pivotal fact w

itness in this
case because of his inv

estigation of Mr

. Chmelar’s activ

ities and his nego

tiations w ith Messrs. Gossett and Hawki ns and others conc

erning the var

ious c ontract s to sell the Nashville dealershi p. Based on the facts before us, many of his communications do not appear to be privileged. Accordingly, on remand, the trial cour t should require Mr. Hart

to provide an index containing a description of the materials b eing withheld in o

rder to enable the court to determine whether the claim of privilege is being properly asserted.

The trial court also lim

ited Messrs. Gossett’s andHawkins’s discovery of Mr. Hart’s andthe dealership’ s records at Fir st Tennessee Ba

nk to the period of A

pril 1, 1993 to September

15, 1995. Tenn. R. Civ. P. 26.02(1) permits the discovery of information that “appears re asonably

calculated to lead to the discovery of admissible evidence.” The evidence indicates that Mr. Hart and the Nash ville dealership c

ontinued its relati

onship with First Tennessee Bank until October 1996. Accordingly, we do not perceivea basis for the-16-

trial court’s decision

to limit this disc over y request. O n remand, the tria

l court should modify its order to permit additional discovery of the First Tennessee Bank re cords, subject of course to Mr. Hart’s right to seek a protective order with r egard to specific docume

nts for good cause shown.
Meanwhile, the judgment for discretionary costs is vacated,

subject to reinsta

tement, if justified.

Plaintiffs’ fourt

h issue raises the

question of the tor

t of interferenc

e with economic advantage. Th at question is not controlled by Florida law, but lex fori, Tenne ssee l aw. In Nelson v. Martin , Tenn. 1997, 958 S.W.2d 643, the Supreme Court ref used torecognize the tort of interference with prospective economic advantage.

Based upon the present record, the foregoing disposes of the issues presented by the parties as follow

s:

The purchase of

certain assets of the dealership is enforceable despite failure to agree upon the price of

other assets.

The agreement imposes individual liabi lity upon Har

t as guaranto

r to th e extent of the liability of Superior Motors, Inc.

Under the circumstanc

es of the present

case, it was not e

rror for the Tri

al Court to refuse to impose a const

ructive trust on assets convey ed to a third party

. The equitable remedy of constructive t

rust is appropria

te only when the remedy of damages is unavailable. Browder v. Hite , Tenn. App. 1980, 602 S.W.2d 489, and authorities cited therein. Plaintiffs have the remedy

of recovery

of damages.-17- Tennesseedoes not recogn ize the tort of prosp

e ctive economic advantages. The Trial Courtcorrectly di smissed the counterclaims of Messrs. Gossage and Hart for interference with prospective economic advantage.

Plaintiffs have a limitedright of discovery to be fixed by the Tria l Court after

further pleading and hearing. As above indicated, the Trial Court in effect reserved judgment upon the claim of confidential privilege awaiting the tender or general des cri ption of material claimed to be privileged.

No reversible err

or is found in the dis

c retionary denial of leave to amend the complaint.
The award of discretionary costs is vacated.

The dismissal of

the counterclai

m should await furt

her hearings b

y the Trial Co

urt.

As a result of all the

foregoing, th

e judgment of the

Trial Court is m

odifi ed to conform to the holdings herein, and the cause is remanded to the Trial Court for further procedure in co

nformity with

this opinion. Costs ar

e assessed aga

inst the appellee

s.



### MODIFIED AND REMANDED

.

__________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________-18-

WILLIA M C. KOCH, JR., JUDGE