IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 17, 2023 Session

MATTHEW SWILLEY ET AL. v. WILLIAM THOMAS ET AL.

Appeal from the Chancery Court for Hamilton County

No. 21-0437 Pamela A. Fleenor, Chancellor

___________________________________

No. E2022-01801-COA-R3-CV

___________________________________

Appellants Matthew Swilley (“Swilley”) and Samuel Barr (“Barr”) entered into two 

agreements to purchase mobile home parks from William Thomas (“Thomas”). The buyers 

had not secured financing in order to close on the originally agreed upon closing date. The 

seller granted the buyers a number of extensions of the closing date; however, the buyers 

were ultimately unable to obtain financing in time to close by any of the dates demanded 

by the seller. As a result, the seller rescinded the agreements and shortly thereafter sold 

the properties to unrelated third parties for a higher price than provided for in the 

agreements with Swilley and Barr. Swilley, Barr, and their purported assignee, SB Capital 

LLC (“SB Capital” or, together with Swilley and Barr, “Plaintiffs”), brought suit against 

the seller for breach of contract and for a declaratory judgment as to the proper 

disbursement of the earnest monies held in escrow. The trial court granted summary 

judgment in favor of the seller on Plaintiffs’ breach of contract claim, finding that Plaintiffs 

were the first to materially breach the agreements. Discerning no error, we affirm the 

judgment of the trial court.

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

Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,

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

Matthew A. Grossman and Richard E. Graves, Knoxville, Tennessee, for the appellants,

Matthew Swilley, Samuel Barr, and SB Capital, LLC.

Robert G. Norred, Jr., Cleveland, Tennessee, for the appellee, William Thomas.

01/31/2024
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OPINION

I. Background1

On January 19, 2021, “Samuel Barr & Matthew Swilley and/or as assigned,”

collectively as Buyer, and Thomas, as Seller, entered into two Real Estate Purchase 

Agreements (the “Purchase Agreements”) for the purchase and sale of two mobile home 

parks, one located in Hamilton County (the “Hamilton County Park”) and another located 

in Bradley County (the “Bradley County Park” or, together with the Hamilton County Park,

the “Parks”). On January 22, 2021, Swilley & Barr deposited $1,000 per Purchase 

Agreement ($2,000 total) as earnest money in escrow with Foothills Title Services, Inc.

(“Foothills Title”). Each Purchase Agreement provided that Thomas would deliver the 

relevant property free and clear of any liens, debts, or encumbrances to Buyer. The closing 

of each transaction was contingent upon Buyer “obtaining suitable financing” and 

contingent upon the closing of the other transaction. Each Purchase Agreement provided 

for a closing date of March 5, 2021 and required that “[a]ny extension of this date and time 

must be agreed in writing by Buyer and Seller[;]” however, the Purchase Agreements did 

not state that time was of the essence.

Swilley and Barr were not able to close by March 5, 2021 because they had not 

secured financing for the transactions. Thomas agreed to extend the closing date to March 

29. In exchange for this extension, Swilley and Barr deposited additional earnest money 

of $4,000 per Purchase Agreement ($8,000 total) in escrow with Foothills Title. Swilley 

and Barr still had not secured financing by March 27, so on that date, they and Thomas 

executed “Amendment No. 1” with respect to each Purchase Agreement. Each 

Amendment extended the closing date for the transactions to April 30, 2021. In exchange,

Swilley and Barr paid directly to Thomas additional earnest money of $2,500 per Purchase 

Agreement ($5,000 total).

On March 30, 2021, Barr executed an “Assignment to Purchase Real Estate,” (the 

“Assignment”) which purported to transfer to SB Capital all of Swilley’s and Barr’s 

“equitable interest” in the Parks. In addition to executing the Assignment in his individual 

capacity as Assignor, Barr also executed the Assignment in his purported capacity as 

Manager of SB Capital as Assignee. Barr executed the Assignment with the consent and 

permission of Swilley, though Swilley did not execute the Assignment himself. SB Capital 

gave no consideration to Swilley or Barr for the Assignment and several provisions of the 

Assignment were apparently included by mistake. There is no dispute among SB Capital,

Swilley, and Barr that SB Capital held the rights of “Buyer” under the Purchase 

 

1 Except as otherwise noted, these facts are taken from the Agreed Stipulation of Facts and exhibits 

thereto filed by the parties in the trial court.
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Agreements after the execution of the Assignment; however, Thomas disputes this 

assertion.

Though not mentioned in the Agreed Stipulation of Facts filed by the parties nor in

the parties’ briefs to this Court, both Thomas’s Statement of Undisputed Material Facts 

and Plaintiffs’ response thereto reflect that on April 6, 2021, the following text message 

exchange occurred between Thomas and Swilley:

Thomas: I got 3 calls today from people wanting these properties.

Swilley: We will close

Thomas: No more extensions

Swilley: I got you don’t worry

(Emphasis added). In a subsequent text message exchange on April 26, 2021, Swilley 

again stated that they were prepared to close the transactions that week. However, they did 

not close. Instead, on April 29, 2021 at approximately 6:30 p.m., Swilley emailed Thomas,

with a copy to Barr, to notify him that Swilley and Barr were “elect[ing] to exercise the 

option to extend [the Purchase Agreements] 15 days as provided in section 9c of [the 

Purchase Agreements].” Specifically, Paragraph 9(C) of the Purchase Agreements 

provided:

In the event that any Third-Party Reports are required by Buyer or Buyer’s 

lender, and these Third-Party Reports are not completed during [the] initial 

Forty-Five (45) day inspection period [following the Effective Date of the 

Purchase Agreements2], the inspection period may be extended for an 

additional Fifteen (15) day period at Buyer’s option if Buyer deposits an 

additional $4,000 non-refundable Deposit with [Foothills Title].

Swilley stated that this extension was necessary because “[o]ur lender . . . requires 

additional time to complete the appraisal” and notified Thomas that an additional $4,000 

per Purchase Agreement ($8,000 total) had been deposited with Foothills Title “as required 

by [the Purchase Agreements].”

Thomas responded at 11:13 p.m. on April 29, 2021, and notified Swilley and Barr 

that he would declare them in default of the Purchase Agreements if they did not close on 

or before April 30, 2021. Thomas referenced the language of Paragraph 9(C) regarding an 

extension of the initial forty-five-day inspection period and maintained that he was “under 

no obligation whatsoever to grant a 3rd extension under the terms of [the Purchase 

Agreements].” Thomas was unwilling to close on the Purchase Agreements at any time 

after April 30, 2021.

 

2

It is undisputed that the Effective Date of the Purchase Agreements was January 19, 2021.
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On May 25, 2021, counsel for Thomas wrote to counsel for Swilley and Barr 

notifying them that the Purchase Agreements were terminated and that Thomas had 

requested that Foothills Title disburse the $18,000 in earnest money to him. On May 27,

Swilley and Barr, through counsel, made a written demand that Thomas close on the 

Purchase Agreements on June 4, 2021. Thomas maintained that the Purchase Agreements 

had been terminated and refused to close on June 4.

On June 18, 2021, two weeks after the demanded June 4 closing date, Plaintiffs filed 

a Complaint against Thomas and Foothills Title in the Chancery Court for Hamilton 

County (the “trial court”). Plaintiffs sought damages against Thomas for breach of contract 

and a declaratory judgment that Plaintiffs were entitled to a return of the full $18,000 in 

earnest money held by Foothills Title. Thomas answered the Complaint, asserted various 

affirmative defenses, and filed a counterclaim against Plaintiffs for breach of contract and 

a crossclaim against Foothills Title demanding that the earnest money instead be disbursed 

to him.

Plaintiffs’ Complaint referenced, for the first time, an Affidavit and Memorandum 

of Purchase and Sale Agreement (the “Bailey Capital Affidavit”) that was filed with the 

Register’s Office of Hamilton County, Tennessee, in October 2020, approximately three 

months prior to the execution of the Purchase Agreements. The Bailey Capital Affidavit 

stated that Thomas and an unrelated third party, Bailey Capital LLC (“Bailey Capital”),

had entered into an agreement for the sale of the Hamilton County Park to Bailey Capital. 

The Bailey Capital Affidavit stated that, as a result, Bailey Capital had “the exclusive right 

to the purchase” and “an equitable interest in” the Hamilton County Park. A release of the 

Bailey Capital Affidavit was recorded on June 15, 2021, three days before Plaintiffs filed 

their Complaint but eleven days after their demanded June 4 closing date.

Thomas sold the Bradley County Park to an unrelated purchaser in September 2021,

for $25,000 more than the purchase price provided in the relevant Purchase Agreement and 

sold the Hamilton County Park to an unrelated purchaser in March 2022, for $115,000 

more than the purchase price provided for in the relevant Purchase Agreement.

On June 23, 2022, Thomas moved for summary judgment as to Plaintiffs’ breach of 

contract claim. Thomas argued that Swilley and Barr have no individual cause of action 

against him due to their purported assignment to SB Capital of their rights under the 

Purchase Agreements and that SB Capital “is not a proper party plaintiff” because the 

Assignment “is an illusory and unenforceable document because the assignment is not 

supported by consideration and SB Capital has no quantifiable damages.” He also argued 

that Plaintiffs’ claimed damages “for future value of the subject real estate and income . . .

is not the proper measure of damages and . . . SB Capital failed to present any quantifiable 

claim for damage[s] . . . other than a bonus depreciation tax write off which has to be 

supported by expert testimony which is not present.” Finally, Thomas argued that the 
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Purchase Agreements were not enforceable as they had lapsed as of April 30, 2021 and,

alternatively, that Plaintiffs did not deposit any additional earnest money to extend any 

closing after May 15, 2021.

3

In response, Plaintiffs argued that Thomas lacks standing to contest the validity or 

effect of the Assignment to which he is not a party. They argued that the intent of Plaintiffs,

as the parties to the Assignment, controls with regard to the Assignment, and that it is 

undisputed among Plaintiffs that Swilley and Barr effectively assigned to SB Capital their 

right to enforce the Purchase Agreements. Alternatively, they argued that, in the event 

such right was not effectively assigned to SB Capital, Swilley and Barr retain the right to 

enforce the Purchase Agreements, and they are proper party plaintiffs. Next, Plaintiffs 

argued that their failure to close by April 30, 2021 did not result in the Purchase 

Agreements lapsing because the Purchase Agreements did not make time of the essence. 

Additionally, Plaintiffs argued that they were never under an obligation to close because 

Thomas could not satisfy his obligations under the Purchase Agreements. Specifically,

Plaintiffs argued that, until it was released, the Bailey Capital Affidavit “precluded []

Thomas from delivering marketable title to Plaintiffs[.]” Finally, Plaintiffs argued that 

there is “substantial and material evidence” that they sustained damages in the amount of 

$140,000.00, equal to the difference between their total purchase price under the Purchase 

Agreements and the total sales price Thomas ultimately received for his sale of the Parks 

to third parties later in 2021. In support of their argument that Thomas was unable to 

deliver marketable title, Plaintiffs attached a Declaration of Eugene R. McCullough, Esq.,

NTP, TNLTP, CIPP/US (the “McCullough Declaration”). Mr. McCullough is a licensed 

Tennessee attorney with over twenty years of employment with various title insurers. He

opined that, as a result of the Bailey Capital Affidavit: equitable title to the Hamilton 

County Park had been transferred from Thomas to Bailey Capital, and any legal title 

previously held by Thomas would be deemed to be held exclusively in trust for the benefit 

of Bailey Capital; equitable legal title remained in Bailey Capital from the time the 

purchase agreement between Thomas and Bailey Capital was executed until June 14, 2021;

title to the Hamilton County Park would be deemed unmarketable if sold to a buyer other 

than Bailey Capital and would subject the parties to such sale to a threat of litigation; any 

reasonably prudent title insurer would refuse to issue title insurance for the Hamilton 

County Park to any purchaser other than Bailey Capital so long as the equitable title was 

deemed to be vested in Bailey Capital; and any reasonably prudent real estate attorney 

and/or title insurer would conclude that Thomas never possessed marketable title that he 

was obligated to convey under the Purchase Agreements.

The trial court granted summary judgment in favor of Thomas on August 24, 2022,

finding that the first antecedent breach of the Purchase Agreements was by Plaintiffs due 

 

3 May 14, 2021 is the date to which Plaintiffs attempted to extend the closing in their April 29, 

2021 correspondence to Thomas.
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to their failure to close by April 30, 2021 and that the Purchase Agreements expired 

thereafter. The trial court did not consider the Bailey Capital Affidavit because the copy 

filed with the trial court was not properly authenticated, although Plaintiffs had asked the 

trial court to take judicial notice of the document and Thomas had no objection. The trial 

court further found that, even if it had considered the Bailey Capital Affidavit, the issue of 

Thomas’s purportedly unmarketable title was “a phantom argument since Plaintiffs never 

brought any potential cloud of title to [Thomas’s] attention at any of the times material,”

and the issue of Thomas allegedly being the first to breach “was not raised in the Plaintiffs’

Complaint or any of the pleadings prior to Plaintiffs’ response to [Thomas’s] Motion for 

Summary Judgment.” Moreover, the trial court held that Plaintiffs could not raise this 

argument because the closing was not prevented by the alleged cloud on the title but instead 

by Plaintiffs having not yet secured financing. The trial court found that time was not of 

the essence in this case because it was not written into the Purchase Agreements but that 

this argument by the Plaintiffs was inapplicable because they breached by failing to close 

by April 30, 2021. Finally, the trial court held that the Purchase Agreements were not 

effectively assigned to SB Capital by Swilley and Barr, and thus SB Capital is not a proper 

party plaintiff. Because the trial court found that Thomas was entitled to summary 

judgment as a matter of law, it made no ruling on Plaintiffs’ alleged damages.

On November 4, 2022, a bench trial was held on the parties’ opposing claims for 

disbursement of the earnest money. In their opening statement at trial, Plaintiffs

acknowledged that the only way they could prevail on their remaining claim for 

disbursement would be for the trial court to make a ruling inconsistent with the summary 

judgment order. Plaintiffs then argued that there were a number of issues with the summary 

judgment order, namely those issues raised on appeal and discussed below. Plaintiffs

argued that the trial court had the authority to modify the summary judgment order as it 

was not yet a final order. Thomas objected to this opening statement as an attempt to 

reargue the summary judgment motion. At the conclusion of opening statements, the trial 

court stated that it construed Plaintiffs’ opening statement as a motion to alter or amend 

the summary judgment order and held it was not timely because Plaintiffs did not file a 

motion pursuant to Rules 59 or 60 of the Tennessee Rules of Civil Procedure within thirty

days after the entry of the summary judgment order. As such, the trial court declined to 

alter or amend the summary judgment order. At the conclusion of trial, the trial court

awarded Thomas $10,000 of the earnest money and Swilley and Barr $8,000 of the earnest 

money. This timely appeal followed.

II. Issues Presented on Appeal

Plaintiffs raise the following issues on appeal, which we restate and consolidate:

1. Whether the trial court erred in granting Thomas’s motion for summary 

judgment as to Plaintiffs’ breach of contract claim.
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2. Whether the trial court erred in holding there was no effective assignment of 

the Purchase Agreements to SB Capital.

3. Whether Plaintiffs were damaged by Thomas’s purported breach of the 

Purchase Agreements.

4. Whether the trial court’s purported errors in the summary judgment order 

require reversal of the subsequently entered judgment.

5. Whether the trial court erred in holding that the summary judgment order 

became a final order prior to the entry of the judgment.

III. Standard of Review

A trial court may grant summary judgment only if the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits . . . show 

that there is no genuine issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The propriety of a trial court’s 

summary judgment decision presents a question of law, which we review de novo with no 

presumption of correctness. Kershaw v. Levy, 583 S.W.3d 544, 547 (Tenn. 2019).

“The moving party has the ultimate burden of persuading the court that there are no 

genuine issues of material fact and that the moving party is entitled to judgment as a matter 

of law.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). As our Supreme 

Court has instructed,

when the moving party does not bear the burden of proof at trial, the moving 

party may satisfy its burden of production either (1) by affirmatively negating 

an essential element of the nonmoving party’s claim or (2) by demonstrating 

that the nonmoving party’s evidence at the summary judgment stage is 

insufficient to establish the nonmoving party’s claim or defense.

Rye v. Women’s Care Ctr. of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015). “[I]f the 

moving party bears the burden of proof on the challenged claim at trial, that party must 

produce at the summary judgment stage evidence that, if uncontroverted at trial, would 

entitle it to a directed verdict.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 888 

(Tenn. 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)).

When a party files and properly supports a motion for summary judgment as 

provided in Rule 56, “to survive summary judgment, the nonmoving party may not rest 

upon the mere allegations or denials of its pleading, but must respond, and by affidavits or 

one of the other means provided in Tennessee Rule 56, set forth specific facts . . . showing 
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that there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks 

and brackets in original omitted). “Whether the nonmoving party is a plaintiff or a 

defendant – and whether or not the nonmoving party bears the burden of proof at trial on 

the challenged claim or defense – at the summary judgment stage, ‘[t]he nonmoving party 

must demonstrate the existence of specific facts in the record which could lead a rational 

trier of fact to find in favor of the nonmoving party.’” TWB Architects, 578 S.W.3d at 889 

(quoting Rye, 477 S.W.3d at 265).

“This court will affirm the trial court’s summary judgment if it finds that the trial 

court reached the correct result, ‘irrespective of the reasons stated.’” Wood v. Parker, 901 

S.W.2d 374, 378 (Tenn. Ct. App. 1995) (quoting Clark v. Metro. Gov't of Nashville & 

Davidson Cnty., 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991)).

Like motions made pursuant to Rules 59 and 60 of the Tennessee Rules of Civil 

Procedure, motions made pursuant to Rule 54.02 are reviewed under an abuse of discretion 

standard. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). “A trial court 

abuses its discretion when it causes an injustice by applying an incorrect legal standard,

reaching an illogical decision, or by resolving the case ‘on a clearly erroneous assessment 

of the evidence.’” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010) (quoting 

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). “The abuse of discretion 

standard does not permit the appellate court to substitute its judgment for that of the trial 

court.” Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). “Indeed, when 

reviewing a discretionary decision by the trial court, the ‘appellate courts should begin with 

the presumption that the decision is correct and should review the evidence in the light 

most favorable to the decision.’” Id. (quoting Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,

709 (Tenn. Ct. App. 1999)).

IV. Analysis

A. Motion for Summary Judgment

Plaintiffs argue that the trial court erred in granting Thomas’s motion for summary 

judgment because (1) the Purchase Agreements did not make time of the essence, and (2) 

Thomas was not able to deliver marketable title on April 30, 2021. Plaintiffs contend they

were damaged by Thomas’s refusal to close on a later date. 

“[A] party who commits the first uncured material breach of contract may not 

recover damages for the other party’s material breach.” Madden Phillips Constr., Inc. v.

GGAT Dev. Corp., 315 S.W.3d 800, 812 (Tenn. Ct. App. 2009) (citing United Brake Sys.,

Inc. v. Am. Env’t Prot., Inc., 963 S.W.2d 749, 756 (Tenn. Ct. App. 1997)). In their 

Complaint, Plaintiffs aver that Thomas breached the Purchase Agreements “first by failing 

to obtain and provide Buyers or SB Capital LLC with necessary information and 
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documentation to effect a release of record lines [sic], debts, and encumbrances, and 

second by failing to close on June 4, 2021.” Conversely, Thomas argues in his motion for 

summary judgment that he was entitled to terminate the Purchase Agreements when 

Plaintiffs were not ready to close on April 30, 2021, or alternatively May 14, 2021.

i.

“Ordinarily, the inability of a party to close a real estate sales contract on a particular 

date is not considered to be a material breach of the contract since the general rule is that 

time is not of the essence in a real estate sales contract, unless otherwise specified in the 

contract.” Lewis v. Muchmore, 26 S.W.3d 632, 639 (Tenn. Ct. App. 2000) (quoting

Crye-Leike Realtors, Inc. v. Hay, No. 02A01-9104-CV-00057, 1991 WL 192493, at *3 

(Tenn. Ct. App. Oct. 1, 1991)). However, even when a real estate sale contract does not 

expressly make time of the essence, “it may be made such by subsequent conduct of the 

parties, as by one party giving notice that he will insist on the contract by a certain date,

provided the time allowed is reasonable, which depends on the circumstances of the 

particular case.” Thompson v. Menefee, 6 Tenn. App. 118, 128 (Tenn. Ct. App. 1927). 

Reasonable time “is that time within which the party obligated can with reasonable 

diligence, under the circumstance, do the thing required.” Id. “When time is of the essence,

the failure of a party to [timely perform] gives the other party a basis to rescind the 

contract.” Seaton v. Wise Properties-TN, LLC, No. E2011-01728-COA-R3-CV, 2012 WL 

2362144, at *6 (Tenn. Ct. App. June 22, 2012) (citing 77 Am.Jur.2d Vendor and Purchaser

§ 80 (1975); 91 C.J.S. Vendor & Purchaser § 104b (1955)).

The Purchase Agreements did not expressly provide that time was of the essence. 

However, Thomas made time of the essence when he demanded that Plaintiffs close on or 

before April 30, 2021. Plaintiffs argue that this demand was not reasonable because it was 

made on April 29, 2021; however, this argument ignores the fact that Thomas expressly 

informed Swilley on April 6, 2021 – twenty-four days prior to April 30 – that he would not 

grant Plaintiffs another extension of the closing date. The Purchase Agreements were 

executed on January 19, 2021 and originally included an agreed upon closing date of March 

5, 2021. Given this, and the relatively straightforward nature of these transactions, it was 

reasonable for Thomas to demand that Plaintiffs close on or before April 30, 2021,

especially when Thomas gave Plaintiffs twenty-four days’ notice of such demand. Because 

Thomas made time of the essence and Plaintiffs failed to close on April 30, 2021, Thomas 

was entitled to rescind the Purchase Agreements.

ii.

In defense of their failure to close, Plaintiffs rely on two recent cases from this Court 

to argue that they were not required to close on any date prior to June 15, 2021 because 

Thomas was unable to deliver marketable title to Plaintiffs until the release of the Bailey 
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Capital Affidavit was recorded. See Bowers v. Est. of Mounger, No. E2020-01011-COAR3-CV, 2021 WL 2156929 (Tenn. Ct. App. May 27, 2021), no perm. app. filed, and 

Houston Humphreys LLC v. Houston St. Partners, LLC, No. M2021-00235-COA-R3-CV,

2022 WL 3573404 (Tenn. Ct. App. Aug. 19, 2022), perm. app. denied, not for citation

(Tenn. Feb. 13, 2023).

4 However, Bowers and Houston Humphreys are both easily 

distinguishable from this case because each of those cases involved a seller that had notice 

of a purported cloud on their title and failed to cure the defect. Conversely, Thomas was 

neither timely provided with notice of the purported cloud on his title nor provided an 

opportunity to cure such defect.

“The law in Tennessee is that ‘a party alleging defects in the performance of a 

contract is required to give notice and a reasonable opportunity to cure the defects.’” Greg 

Calfee Builders LLC v. MaGee, 616 S.W.3d 545, 554 (Tenn. Ct. App. 2020) (citing Forrest 

Const. Co., LLC v. Laughlin, 337 S.W.3d 211, 229 (Tenn. Ct. App. 2009)). While this 

principle is applied most often in cases involving construction contracts, it applies equally 

in this situation. See Hobbs v. Nottingham, No. E2013-002602-COA-R3-CV, 2015 WL 

399216, at *9 (Tenn. Ct. App. Jan. 30, 2015) (noting that “Tennessee courts recognize the 

right of sellers to be given an opportunity to remedy any defects in title after execution of 

sales contracts” (citing Rogers v. Roop, 92 S.W.2d 423, 429 (Tenn. Ct. App. 1935))). 

Because Thomas did not have notice of the purported cloud on his title and a reasonable 

opportunity to cure the defect, he cannot be found to have committed the first breach of the 

Purchase Agreements.

It is undisputed that the purported cloud was not the reason the transactions failed 

to close. Indeed, it appears the Plaintiffs were not even aware of the purported cloud on 

the title until after Thomas rescinded the Purchase Agreements. The parties did not close 

because Plaintiffs had not secured financing to fund the purchases. This was the first 

material breach, and Thomas was entitled to rescind the Purchase Agreements. The trial 

court did not err in granting summary judgment to Thomas as to Plaintiffs’ breach of 

contract claim.

B. Rule 54.02 Motion

Following the grant of summary judgment to Thomas, the parties proceeded to a 

bench trial on their respective claims for a declaratory judgment that they were entitled to 

some or all of the escrowed earnest monies held by Foothills Title. In their opening 

statement at trial, Plaintiffs orally made a motion for the trial court to modify the summary 

 

4 By order of the Tennessee Supreme Court, to the extent this Court’s Opinion in Houston 

Humphreys “could be interpreted as holding that any unauthorized encroachment of a building on adjoining 

property per se makes the title to the building’s property unmarketable, [such Opinion] is designated ‘Not 

For Citation’ in accordance with Supreme Court Rule 4, § E.” Order, Houston Humphreys LLC v. Houston 

St. Partners, LLC, No. M2021-00235-SC-R11-CV (Tenn. Feb. 13, 2023).
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judgment order due to the issues discussed above. The trial court denied Plaintiffs’ motion,

holding in its judgment:

Plaintiffs attempted at trial to reargue conclusions of law set forth in the [trial 

c]ourt’s August 24, 2022 Order on the basis that the [trial c]ourt’s August 24,

2022 Order was an interlocutory order subject to modification under Rule 

54.02 prior to entry of a final judgment. The [trial c]ourt finds that the August 

24, 2022 Order became a final judgment thirty (30) days after its August 24,

2022 entry. After that time, the Order could only be set aside by way of a 

Rule 60 motion, which Plaintiffs have not filed. Accordingly, based on 

Plaintiffs’ failure to file a Rule 60 motion and the rationale of the [trial c]ourt 

set forth and [sic] pages 2-9 of the attached transcript, which is incorporated 

as part of this Order, the [trial c]ourt finds that the Plaintiffs’ attempt at trial 

to orally re-argue against the [trial c]ourt’s August 24, 2022 Order is belated 

and the [trial c]ourt will not modify its August 24, 2022 Order.

We disagree with the trial court’s findings on this issue, but we conclude that any error is 

harmless. As explained by the Tennessee Supreme Court:

Pursuant to Tennessee Rule of Civil Procedure 54, “any order or other form 

of decision, however designated, that adjudicates fewer than all the claims or 

the rights and liabilities of fewer than all the parties . . . is subject to revision 

at any time before the entry of the judgment adjudicating all the claims and 

the rights and liabilities of all the parties.” Tenn. R. Civ. P. 54.02; see also 

Tenn. R. App. P. 3(a) (“[A]ny order that adjudicates fewer than all the claims 

or the rights and liabilities of fewer than all the parties is not enforceable or 

appealable and is subject to revision at any time before entry of a final 

judgment adjudicating all the claims, rights, and liabilities of all parties.”). 

Thus, motions seeking relief from a trial court’s decision adjudicating fewer 

than all the claims, rights, and liabilities of all the parties, should be filed 

pursuant to Rule 54.02.

Discover Bank, 363 S.W.3d at 488 (internal footnotes omitted) (emphasis added). 

Although Rule 54.02 provides a mechanism by which a trial court may certify that a 

judgment resolving fewer than all the claims is final and appealable pursuant to Tennessee 

Rule of Appellate Procedure 3(a), the trial court did not make such certification with 

respect to the summary judgment order in this case. “Because the trial court did not 

adjudicate all the claims between all the parties, or certify the [summary judgment order]

as final pursuant to Rule 54.02, neither Rule 59 nor Rule 60[] applied.” Id. at 490.
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As further set forth by the Tennessee Supreme Court:

When additional evidence is submitted in support of a Rule 54.02 

motion to revise a grant of summary judgment, a trial court should consider,

when applicable: 1) the movant’s efforts to obtain evidence to respond to the 

motion for summary judgment; 2) the importance of the newly submitted 

evidence to the movant’s case; 3) the explanation offered by the movant for 

its failure to offer the newly submitted evidence in its initial response to the 

motion for summary judgment; 4) the likelihood that the nonmoving party 

will suffer unfair prejudice; and 5) any other relevant factor. . . .

Accordingly, we hold that the “newly discovered evidence” standard 

need not be satisfied before a trial court revises a partial summary judgment 

under Rule 54.02 on the basis of additional evidence. When additional 

evidence is offered by a litigant to overcome a grant of summary judgment 

pursuant to Rule 54.02, trial courts must undertake the above-stated 

balancing analysis and should make adequate findings of fact and 

conclusions of law on the record to support their rulings.

Harris v. Chern, 33 S.W.3d 741, 745 (Tenn. 2000) (collecting cases). The only potential 

additional evidence offered by Plaintiffs in support of their oral Rule 54.02 motion was the 

live testimony of Eugene R. McCullough, which was made as an offer of proof outside the 

presence of the trial court judge. However, the substance of Mr. McCullough’s testimony 

did not differ from his opinions set forth in the McCullough Declaration, which had been 

filed by Plaintiffs in opposition to the motion for summary judgment.

Although the trial court did not undertake the Harris balancing analysis, Plaintiffs 

reargued the same position already considered and ruled upon by the trial court as part of 

its initial decision on the motion for summary judgment. Like Rules 59 and 60, Rule 54.02

is not intended to allow a party to simply reargue its position already considered by the 

trial court with respect to a summary judgment motion. See Guo v. Rogers, No.

M2020-01209-COA-R3-CV, 2022 WL 1220917, at *12 (Tenn. Ct. App. Apr. 26, 2022),

perm. app. denied (Tenn. Sept. 29, 2022) (considering the Harris factors and noting that 

“a mere bid to re-argue the [t]rial [c]ourt’s grant of summary judgment in favor of [a 

d]efendant . . . is an insufficient basis for granting [a p]laintiff’s motion to amend”). Given 

the circumstances of this case and our conclusion that the trial court did not err in granting 

summary judgment in favor of Thomas, we further conclude that the trial court’s 

misstatements were harmless as they did not “more probably than not” affect the judgment 

and did not result in prejudice to the judicial process. See Tenn. R. App. P. 36(b). 

Therefore, we affirm the trial court’s denial of the Rule 54.02 motion.
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C. Remaining Issues

Our affirmance of the trial court’s grant of summary judgment and denial of the 

Rule 54.02 motion are dispositive; as a result, Plaintiffs’ remaining issues are pretermitted. 

See O’Dneal v. Baptist Mem’l Hosp.-Tipton, 556 S.W.3d 759, 774 (Tenn. Ct. App. 2018) 

(“[W]hen presented with multiple issues on appeal, one of which is dispositive, we have 

consistently found the remaining issues to be pretermitted.” (quoting In re Jamie B., No.

M2016-01589-COA-R3-PT, 2017 WL 2829855, at *7 (Tenn. Ct. App. June 30, 2017))).

V. Conclusion

For the aforementioned reasons, we affirm the judgment of the Chancery Court for 

Hamilton County, and this case is remanded for proceedings consistent with this opinion.

Costs of this appeal are taxed to the appellants, Matthew Swilley, Samuel Barr, and SB

Capital, LLC, for which execution may issue if necessary.

_________________________________

KRISTI M. DAVIS, JUDGE