### IN THE CO URT OF APPEALS OF TE NNE SS EE AT KNOX VILLE Ass ig ne d o n B rie fs , Octo be r 8, 2 00 9

DONALD SI MMONS, v . KC CONSTRUCTI ON AND CONSULTI NG, INC., et a l.

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W e a f f i r m t h e J u d g m e n t o f t h e T r i a l C o u r t

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T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C h a n c e r y C o u r t A f f i r m e d

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H E R S C H E L P IC K E N S F R A N K S , P

. J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h C H A R LE S D

. S U S A N O , J R

. , J

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. M IC H A E L S W IN E Y , J

. , j o i n e d

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B r u c e H i l l
, S e v i e r v i l l e , T e n n e s s e e , f o r t h e a p p e l l a n t , D o n a l d S i m m o n s

.

S c o t t D

. H a l l
, S e v i e r v i l l e , T e n n e s s e e , f o r t h e a p p e l l e e , K

. C

. C o n s t r u c t i o n a n d C o n s u l t i n g , I n c

.O P I N I O N

Plaintiff filed a Dec lara tory J udg ment action ag ainst defe ndants, alleg ing that defe ndant KC Construction owned ce rtain prope rty in Sevier C ounty , and that defe ndant Hig hlands Union Ba nk held the mortg ag e on the lot that KC conve y ed to plaintiff, with C. Dan Scott as the trustee

.

Plaintiff alleg ed that KC ag ree d to sell him the property with improvements known as L ot 2 4 R in the L aure l Creek Subdivis ion, and plaintiff g ave KC a chec k for $25,000.00 as ea rn es t money

. Plaintiff alleg ed that KC sent him to First Capital L ending to obtain a loan for the purcha se, and t h at h e, KC, and First Capital (by its ag ent Vincent Patti) worke d toge ther to produce a g ood faith estimate, which plaintiff attache d as an Ex hibit to his Compl ai n t

. P l aint iff alleg ed that the $25,000.00 ear

nest money was not deposited into an escr ow acc ount, and he believed that it was no longe r ava ilable.

Plaintiff asked for a decla ration from the Court that he had a rea l estate contra ct with KC for the convey

ance of L ot 24R for $260,000.00, and that the $25,000.00 ear nest money deposit be paid
to his counsel’s trust acc ount or the Court’s reg istry until the rea l estate transac tion was closed. He attache d a letter from KC which stated that plaintiff sent a deposit on a home KC was building for him in the amount of $ 2 5
, 0 00.00, and that $10,000.00 of same was non-re fundable

. Plaintiff attache d
a copy of a c heck f

or $25,000.00, and the g ood faith estimate.

KC filed an answe r, asser ting that plaintif

f h ad brea ched the parties’ contra ct as an af firmative defe nse, and admitted that the parties had a written contra ct, but asser ted that it wa s brea ched, w h ic h e n ti tle d KC to reta in the deposit. Fur ther, that plaintiff brea ched other contra cts with KC, and that KC was entitled to cer tain damag es, and in its Counter-c laim, explained that plaintiff brea ched the contra ct by failing to close the pu rcha se by Fe bruar y 1, 2008, and failing to pursue financ ing. KC alleg ed that it was entitled to $10,000.00 which was a non-re fundable deposit, as well

as attorney ’s fee s, and damag es for plaintiff’s failure to perf orm construction service s on other
contra cts.

Subsequently , plaintiff’s counse l moved to withdraw, whic h was g rante d.

The pa rties enter ed an A g ree d Orde r, which pla intiff signe d as a pro se litigant, that stated that the deposition of Vincent Patti, a resident of Florida
, coul d be taken by telephone, and also stated that J ohn Fowle r could serve as speci al m as ter. The Court also order ed that the plaintiff should provide additional documentation by J uly 25, 2008, and that based on his dis cover y response s, he would not be able to submit evidenc e to contra dict his repr esenta tion t h at t h e only written corr espondenc e by KC was the letter attache d to the complaint, and a letter quoting $75.00 per hour

.

KC then filed a No t i ce o f De position, stating that Patti’s deposition would be taken by telephone on Aug ust 5, 2008. The Special Master then sent a notice to all parties on Aug ust 1, 2008,

-2-t h at t he hear ing would be held on Aug ust 29, and KC serve d a witness list on Aug ust 25
, 2 0 0 8
,

naming Vincent Patti as a w itness.

The S pecia l Master filed a R eport, stating that at the hea ring on Aug ust 29, 2008, plaintiff (re prese nting himself) asked for a continuance

. The Master s t at ed that he could not control the docket of the Sevier County Chance ry Court, and there was a hear ing date set in the near future for revie w of the master’ s repor t. Moreove r, the Master stated that the plaintiff had agr ee d t o the appointment of the Master and the hear ing date, and had not f iled a motion for a continuance prior
to the h ea ri n g. The Master then denied plaintiff’s oral motion for a continuance
, and the repor t stated that at that point, plaintiff decide d to remove himself from the proce eding without introducing
any proof. The trial proce eded on K C’s counter- claim.

Following the evidentiar

y hear ing, the Master found that plaintiff failed to comply with the provisions of the sales c ontrac t, which re sulted in a brea ch.

The Master found that the sales contra ct provided that if plaintiff brea ched or defa ulted under the terms of the contra ct, he would forf eit his ear nest money of $25,000.00. The Master thus found that KC was entitled to keep the entire $25,000.00. The Master further found that the sales contra ct also provided for KC to rec eive attorney ’s fee s if it was the preva iling party in a n action to enfor ce the ag ree ment.

The Master found that KC also soug ht da mag es for the work that plaintiff ag ree d to do but d id not, or which plaintiff did poorly and KC had to pay to have redone

. The M as t er s et as i d e plaintiff’s lien lis pendens, and order ed that KC’s damag es wo uld be set off by the $25,000.00

ear nest money that KC reta ined, s u ch t h at KC was awa rded a judgme nt ag ainst plaintiff for $15,626.74.

KC filed a motion to aff

irm the Master’ s repor

t, and sent plaintiff a notice of the hear ing on its mot ion, which was se t on September 23, 2008.

On S eptember 22, 2008, plaintiff fil ed a Motion for Cont inuance
, s t at i n g t hat he had tried
to find counsel by contac ting numerous lawy ers, but that ever y one of them had a conflict of interest. Plaintiff stated that despite his inability to find counsel, defe ndant’s counsel proce eded with taking depositions outsi de of pla intiff’s pre sence

.

The court held a hearing on September 23, 2008, and adopted the S pecia l Master’ s repor t, finding that there had been no exceptions to the same. The Court enter ed judgme nt ag ainst plaintiff for $15,626.74, a

nd order ed plaintiff’ s lien decla red void a nd dismiss ed plaintiff’ s claims.

R es p o n d i n g to plaintiff' s Motion, the Court enter ed an Orde r setting aside the J udg ment, stating that since plaintiff did not g et his full ten day s within which to file objections to the Special Master’ s repor

t, then the J udg ment aff

irming same should be set aside. A hear ing on p l ai n t i ff’ s objections was set for Marc h 5, 2009. After the hear ing, the Court enter ed a J udg ment aff irming the Special Master ’s re port.

-3-On appe al, plaintiff ra ised these issues:

1. Whether t h e T ri al court err ed in not sustaining objections to the Special Master’ s repor t wher eby the Master allowed KC to introduce witnesses and exhibi ts at t he hear ing without compliance with local rules that require the parties to exchang e written witness and e x hibit li sts in advance of the trial?

2. Whether the Tr ial Court erre d in deny ing pla intiff’s motion for continuanc e?

Plaintiff arg

ues that he was prejudice d beca u se the defe ndant did not file its witness and exhibi t lists at least seven day s befor e the hear ing, as require d by local rules. He conce ded, howeve r, that application of the l ocal r ules is discretionar

y with the Trial C ourt, rathe r t han mandatory
, and that the Trial Court has the power to waive the same if i t so chooses. See Kill inger v. Perry
, 620 S.W .2d 525 (Tenn. Ct. App. 1981).

Plaintiff did not part i ci p at e in the hearing other than to ask for a continuance and to arg ue with the sp ec i al m as t er reg arding whether the hear ing should be conducte d at all and by whom. Plaintiff did not object reg arding the timeliness of the witness or exhibi t lists nor defe ndant’s alleg ed non-complianc e with the local rules. I n t h i s reg ard it is well-settled that issues not raised at trial
cannot be raised for the first time on appea l. W aters v. Farr
, 291 S.W .3d 873 (Tenn. 2009). Fur ther,

as defe ndant points out, plaintiff cannot now clai m t h at t h e Trial Court err ed in allowing cer tain evidenc e if he failed to objec t to the admission at the time of the trial. Tenn. R. Evid. 103.

Next, plainti ff a

rg ues re g arding whether

he wa s g iven ade quate notice of the de position of Vincent Patti. Plaintiff signe d an Ag ree d Orde r that Patti’s deposition could be taken for proof via telephone. KC then fil ed a Notice of Deposition stating that Patti ’s deposit ion would be taken on Aug ust 5, 2008. The Notice contained a cer tificate of service stating that it was mailed to plaintiff

on J uly 29, 2008. Plaintiff a sserts that this does not satisfy the notice require ments under the local rules.

Whether plaintiff re ceive d proper notice is waive d, since plaintiff did not raise the issue at the trial of the c ase. See W aters . Plaintiff a

rg ued at the hear ing that he had not r ece ived a copy of the deposition, but he did not raise the issue of whether he had rec eived proper notice of the hear ing. We find the issue to be without merit.

Plaintiff further arg

ues that the Court err ed in ref using to g rant him a continuance

. The decision of whether or not to g rant a co n t i n u ance is discretionar y with the Trial Court, and this discretion will not be int erf ere d with unless there is a clear showing of err or on its part. Tipton v. Smith, 593 S.W .2d 298 (Tenn. Ct. App. 1979). As defe ndant asser ts, t here must be a showing of prejudice or surprise which arises from the trial court’s failure to g rant a continuance and that a new trial would cha

ng e the r esult rea ched. Id.

-4-I n this case , plaintiff cannot show prejudice or surprise since he was sent notice of the Aug ust

29 hear ing date, and he never filed a written motion for continuance
, but rathe r made an oral motion

on the morning of trial, and he has not shown that a new trial would chang e the result rea ched. This issue is also without merit.

For the fore g oing r easons we aff irm the J udg ment of t he Trial Court and remand, wit h the cost of the a

ppeal a ssessed to appe llant, Donald Simmons

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ H E R S C H E L P I C K E N S F R A N K S
, P

. J

.

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