1Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the concurrence of all judges

participating in the case, may affirm, reverse or modify the actions of the trial court by mem orandum opinion

when a formal opinion would have no precedential value. When a case is decided by memorandum opinion

it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied

upon for any reason in a subsequent unrelated case.

1

FILED

Oct. 20, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

 

MAXIE L. NICHOLS and ) From the Chancery Court of

W. MAX NICHOLS, ) Davidson County at Nashville

)

Plaintiffs/Appellants, ) Hon. C. Allen High, Chancellor

)

VS. ) Davidson Chancery No. 94-3181-II

) Appeal No. 01A01-9506-CH-00247

TENNESSEE STUDENT )

ASSISTANCE CORP., ) AFFIRMED

)

Defendant/Appellee. ) Maxie L. Nichols, pro se

) W. Max Nichols, pro se

)

) Sandra E. Keith

) Assistant Attorney General

) Nashville, Tennessee

) Attorney for Defendant/Appellee

 

MEMORANDUM OPINION1

 

HIGHERS, J.

This is an appeal from the trial court's judgment in favor of Defendant on Plaintiffs'

fraud and contract allegations.

Appellants are William Max Nichols, maker of certain notes representing student

loans, and his father, Maxie L. Nichols, who was co-maker on said notes. The Appellee

is Tennessee Student Assistance Corporation (TSAC), a non-profit corporation created by

the General Assembly to guarantee and administer loans made by educational institution

lenders to students attending post-secondary schools in Tennessee. T.C.A. § 49-4-203(1)-

(3) (1990).

William Max Nichols, received four student loans in the late 1970s on which his

father co-signed. William Max Nichols defaulted on these loans and on September 14,

1992, TSAC recovered a judgment against Appellants in the amount of $18,138.26. In

October of 1994, Appellants filed a complaint against TSAC, alleging that various

irregularities occurred in connection with the servicing of the loans, including fraud, contract

interference, and inducement to breach of contract. 
2

TSAC filed a Motion to Dismiss and/or for Summary Judgment on the grounds of

res judicata, sovereign immunity, and failure to state a claim. The chancellor granted

TSAC's motion. It is from this decision that this appeal arises. 

Appellants filed a motion with the Court of Appeals, Middle Section, to consider as

post-judgment facts certain documents indicating that TSAC assigned the notes to the U.S.

Department of Education and, therefore, was not the holder of the notes at the time of the

1992 judgment. Judge Cantrell denied Appellants' motion, noting that the alleged

assignments did not occur after the trial court's judgment, and therefore were not postjudgment facts pursuant to T.R.A.P. 14. Consequently, the Court found that the

documents were inappropriate for consideration under T.R.A.P. 14. 

Appellants have raised two issues for our consideration on appeal. The first is

whether the trial court erred in granting Appellee's Motion to Dismiss and/or for Summary

Judgment. According to Appellants, there exist genuine issues of material fact with respect

to whether Appellee was the holder of the notes at the time the 1992 judgment was

entered. Appellants' second assertion of error is that the trial court abused its discretion

by denying Appellants Motion for Continuance on the hearing of TSAC's Motion to Dismiss

and/or for Summary Judgment. Appellants contend that they should have been permitted

to introduce newly discovered evidence indicating that TSAC was not the holder of the

notes at the time of the previous judgment. 

Because this Court has denied Appellants' motion for consideration of postjudgment facts, we are precluded from considering any proffered documents relating to

Appellants' allegation that TSAC was not the holder of the notes. Moreover, there is

insufficient evidence contained in the record before us to sustain such a contention.

Accordingly, Appellant's first issue is without merit as there existed no disputed issue of

material fact as to whether TSAC was the holder of the notes at the time judgment was

entered.

With respect to Appellants' second issue, a trial judge will not be put in error for

denying a motion for continuance in the absence of a showing of abuse of discretion.

Moorehead v. State, 40-9 S.W.2d 357 (Tenn. 1956); Kerney v. Cobb, 658 S.W.2d 128, 131

(Tenn. App. 1983).
3

The record does not reveal upon what basis the chancellor denied Appellants'

Motion for Continuance. Concomitantly, we find nothing in the record to suggest the

chancellor abused his discretion in denying such motion. We therefore affirm the trial

court's denial of Appellants' Motion for Continuance. 

 The judgment is accordingly affirmed. Costs on appeal are taxed to Appellants.

 

HIGHERS, J.

CONCUR:

 

TOMLIN, J.

 

FARMER, J.