### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 8, 2002 Se ssion STRATEGIC CAPITAL RESOURCES, INC., ET AL 

### . v. DYLAN TIRE

INDUSTRIES, LLC, ET AL 

### .
Appeal from the Chancery Court for Davidson County No. 00-1296-III Ellen Hobbs Lyle, Chancellor

No. M2001-00790-COA-R3-CV - Filed July 9, 2002

Strategic Capital Resources, Inc. and FPE Funding, L LC sued the

buyer and se

ller of the Pirelli tire plant in Nashville and other parties involved in structuring and financing the transaction. The complaint alleged that the buyer and seller breached an a greement with Strategic, and that other parties we re gu il ty of fraud , inducem ent of br each of contract, conspir

acy , and had

been unju stly enric hed at the e xpense of Strategic.. The Chancery Court of Davidson County gr anted the defenda nts’ Tenn . R. Civ. P. 12 .06 motion t o dismiss because Strategic’s contract with the buyers did not bind

the buy er to dea l exclusive

ly w ith Strate gic. We a

ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM B. C AIN , J. and D ON R. A SH , S P
. J., joined.
Robert C. Goodric

h, Jr. and Ro nald G. Steen, Jr., Na shville, T ennesse e, for the appell ants, Stra tegic Capital Re sources , Inc . and FPE Funding , LL

C.
C. Brooks Wo od and Er

ik P. Klinke

nborg, Kansas City, Missouri, and Robb S. Harvey, Na shville, Tenness ee, for

the appe llees, Dy lan Tire Indu stries, L

LC an d Dylan Custom M ixing, L LC.
Thomas Lawrence

Stewa rt, Ch arle s W. Coo

k, I II , and Mark A. Bo gda nowic z, Nashville, Tennessee, for the a ppellee GMAC Comme

rcial Cr edit L LC.
Blakele y D . Matthew s, Nashvi lle, Tenn essee, f or the ap pellee, Pirelli Tir

e LL C.-2- OPINION
I.
The following facts are

taken fr om the pla

intiffs’ first

amended complain t and the e

xhibits thereto.
In August of 1998, P irelli Tire LL C agre ed to sell i

ts manufa cturing plant in Na shville to Dylan Tire Indu stries, L

LC, a M is so ur i l im it ed li ab il it y co mp an y. C lo si ng wa s t o o cc ur si xt y da ys after Pirelli fu rnished t o Dylan all the

document s specif

ied in the contract. The co mplaint alleges, however, that as late as the Spring of 1999 Dylan was unable to close thepurchas e becau se it could not finance it. Dylan contact ed the pla

intiff, Str ategic Capital Re sources , Inc ., to explore Strategic’s willingness to provide the required financing. On July 9, 1999, Strategic issued a commitme

nt to Dylan and to Mid- Ame rica n Tire and Machine, LL C in which Strategic agreed to fina nce a transaction structured so that the property would be purchased by

an entity cre ated by Strateg ic; the purchasing entity would then lease the pr operty to Dy

lan and Mid-American for a term of five ye ars under a “Triple Net,” “Full Pay out ,” “Hel l or High -Water”lease. T he agr eement c alled fo

r lease pay ments to be guaranteed by some of the principals of Dy lan and/or Mid-American and

bonded by “F ro nt ie r/ Lyn don and NACRE Corporation.” If the c losing did not take place by July 31, 1999, Strategic’s obligat

ions would

terminat e and it wo

uldretain the commitment fee of $153,750 (1⁄2 of the total fee) as liquidated damages. Strategic formed an entity c alled FPE Funding, L LC to be t

he purc haser/lessor of the pr op er ty. The transaction did not close by July 3 1, 1999, bu

t on or abo

ut Augus t 31, 1999, Pirelli, Dylan, and Strategic executed an agr eement extending the closing date for the transaction to October 15, 1999. Strategic agreed to pa y Pirelli $100,000 for the extension and the extension agr e em ent provided that

if the transaction closed on or before October 15, Dylan would rec eive a $100,000 credit on the pur

chase price. O therwise

Pirelli could keep the $100,000. The extension agreement reflected that Strategic and Dy

lan were awaiting approval of a loan from an outside source. If they failedto secure the loan by September 10, 1999, Dylan w ould be in default, allowi ng Pirel li to terminat e th e s al es ag re em en t a nd re ta in th e e ar ne st mo ne y, extension fees, and other deposits made by Dylan, its ag ents, or

affiliates. Strategic’s obligation to Pirelli was specifica lly restricted

to the payment of the $100,000 e xtension fee.
The complaint alleges that Strategic paid the $100,000 to Pirelli at the request of Dylan/ MidAmerican, or of the individual principals connected to them, or of s ome c om bi nat io n of th em. In addition, the plaintiffs allege that Dy lan and on

e of the i ndividual

defenda nts, Feing old, ag

reed to reimburs e Strategic $50,000 of the advance to Pirelli. I n any eve

nt, an indemnit

y ag reement executed by Dy

lan and Feingold on September 2, 1999, provided for the $50,000 re payment and allow ed Strategic to recover all of its out-of-pocke t expenses. Strategic was referre d to in t h e indemnity agr

eement as “merely

a prospective assignee of the Purcha se Agreement.”-3-

Strategic had by

Se ptemberopened negotiations with General Motors Acce ptance Corporation Commercial Credit LL C (GMACCC) to fund the t ransac tion. Afte r Strateg ic paid GMACCC a $50,000 fee, GMACCC, on September 28, 1999, issued two commitment letters, one for $20,500,0 00 and an other fo r up to $2,000,000. Under the $20,500 ,000 commitment GMAC CC would loan FPE the funds to purcha se the pr operty from Pire

lli and FPE

in turn wou

ld lease it to Dylan/Mid-America

n. GMACCC also req

uired a p erforma

nce bond , which the partie s propose d to furnish from Fr ontier I nsuranc e Group. Strategic accepted the terms of the commitment on October 5, 1999, which boun d GMACCC to k eep the c ommitment o

pen for n inety day s. Early in November, Dyla

n, Pirelli, and Strategic executed a tenth e xtension to th

e purcha se agree ment, extending the closing date to November 19, 1999. The parties began preparing and circulating the closing docum ents, but j ust b efore t he clo sing, Frontier’s rating was downg raded and GMACCC re fused to accept the Frontier bonds. Although Strateg ic made efforts to obtain a replacem e ntbonding

company , the othe

r partie s had ag

reed to c lose the tr

ansacti on without S trateg ic or FPE’s participation by D ecember 4, 1999. In a series of secret communic ations, the defendants allege dly conspired to deprive Strategic and FPE of the benefits of the transaction. The secret plan came to fruition on February

28, 2000 when , using f

unds adva

nced by GMACCC, Dy

lan Custom, a newly-for

med co mp an y, purchased the facility and leased it to Dylan a

nd/or Mid-American. On April25, 2000, Strategic and FPE filed this actio n seeking

damage s, on vari ous theor ies, from each of the defendants.
The claims as serted in

the complaint can best be dealt with by first analyzing the r

elief sought rather than the various ca

uses o f action alleged. The complaint seeks to rec over damages in the following amounts: (1) The val ue of t he ben efit o f the b argain w ith D ylan/Mi d-Ame rican, inclu ding, (a) a stream of

income f

lowing to FPEderi ved from the difference betweenthe leas e payments and the c osts of the monthly debt service paid to GMACCC; (b) the value of

an inter est in Dy lan in an undetermined amount of 2% to 10%. (c) the remainder of the commitment fee ($153,750) to be paid at the closing of the original transaction. (2) Treble d amage s from the defenda nts that induced the breach of the agree ment with Dylan/Mid-America

n. (3) From

all defendants, the loss of the above benefit of the barg ain with Dy lan/ Mid-Americanresulting from an illegal conspiracy to deprive the plaintiff s of that b enefit. (4) From

GMACCC, the loss of the above

benefit of the ba

rgain with Dy la n/Mid -American, resulting from GMA CCC’s brea ch of the

ir commitmen

t to the pla

intiffs. (5) Treble

damages from the defendan ts tha t induced the breach of the GMACCC comm

itment.-4-

(6) Damag es in an un specified amount f rom “the defenda nts” for their fr aud in misrepresenting the fac t that the p laintiff s w ere s till involved in the transaction when

they had in fa ct been c ut out. (7) All legal and ou t-of- pocket expenses related to the proposed transaction pursuant to the indemnity ag reement with Dyla

n on September 2, 1999. (8) Damages in an unspe cif ied am ount for Pirelli’s breach of an alleged agreement to sell the property to FPE. (9) Treble

damages from the defendants that induce d Pirelli to breach an alleged agreement to convey

the property to F

PE. (10) The va lu e o f t he be ne fi ts co nfer re d o n a ll th e d ef en da nt s b y the plaintiffs which it would be unjust for the defendants to keep without compensating the plaintiff s. (11) Punitive damages from all “defendants.” (12) Prejudgment interest on any recovery from and after February

28, 2000.
In additio n, the plaintiffs seek the following specific relief: Spec ific performance of the alleged agreement with P ire lli to convey the proper ty to FPE. I

n lieu of specific performance, an order divesting title from the current title holder and vesting it in FPE.
II.
The defendants challenged the alleg ations of the complaint with motions to dismiss under Rule 12.02(6) of the Tenne ssee Rules of Civil Procedure, for failure to state a claim upon which relief can be gra

nted. I n ruling on a 12.02 (6) motion , the cour t must take

the fac tual alle gationsin th e co mplaint as true, Dobbs v. Guenther , 846 S.W.2d 270 (Tenn. Ct. App. 1992) and give the complaint a liberal construction, Waller v. Bryan , 16 S.W.3d 770 (Tenn. Ct. App. 1999). But factual inferences and legalconclusions are not taken as true, Elliott v. Dollar Gen. Corp. , 475 S.W.2d 651 (Tenn. 1971), and allegations in a complaint as to the meaning and inter pretatio n of writt

en contr acts are not admitted by a

12.02(6) motion. Oman Const. Co. v. Tennessee Cent. Ry. Co. , 370 S.W.2d 563 (Tenn. 1 963). I

n addition , Rule10.03 , Tenn. R. Civ. P., re quires th at whene ver a cl aim is foundedupon a written instrument, a copy of that instrument shall, with cer tain immaterial exception s, be atta

ched to th e pleading as a

n exhibit.
III.
As the anal

ysi s of the va

rious cla im s shows, most of the claims depend on two alleged contractual obligat

ions: (1) t he oblig ation of D yla

n/Mid-Ame

rican to close the deal str ucture d by Strategic, and (2) the obligation of Pirelli to sell the property to FPE.

a. T HE S TRA TEGIC /D YLAN A GREEMENT
The critical provisions of the July 19 98 agr eement between Strategic and Dylan/MidAmerica n are co ntained i n the firs t and last p aragr aphs, whi ch are a s follows:1 In fact the Strategic co mm itment w as a prom ise to furnish financi ng, not a promise t o help find f inancing as it ultima tely d id fro m G M AC CC . Thu s, Strateg ic nev er w as ab le to pe rform its oblig ation und er its com mitm ent. -5- Strategic Capital Re sources , Inc . (“L essor”) issues this

non-assignable commitment to Mid-American Tire & Machine, L LC and Dy

lan Tire Industri e s, LLC Ka nsas Limited Liab ility Corpora tions (“Co -Le ssees”) . This commitmen t is for a Pu

rchase and Leaseback Facility in an amount of $20,500,000.00 (“ Purchase and Lea seback”) and is issued subject to those terms and conditions outlined below.

. . . . If the termsand cond

itions of th

is Commitment are satisfactory, ple ase indicate y our approval and acceptance

by signing

and returning the original of this commitment on or before the Commitment Expiration Date, toge ther with the commitment fee of $153,750.00, representing one half of the total commitment fee of $307,500.00, the remainder

being e arned a

nd owing at closi ng. If Co -Le ssees dul y a ccepts t his commitmentand the pu

rchase and Leasebac

k Facility is not closed on or be fore the Purcha se and Le asebac

k Closing Deadline set forth above, th

is commitme

nt shall expire, Lessor’s obligations hereund er shall terminat e, and a ny c ommitment f

ee paid by Co-Le ssees sha

ll be retained as liquidated damages for Lessor’s servicesto date. This commitmentis made exclusively to the named Co-L essees and

may not be sold, assigned or tran sferre d or shown to third pa

rties without Le ssors prio r approv al.
The pages betwee

n these tw o parag

raphs co ntain

a descr iption of th

e proper ty a nd the ter ms of the sale-leaseback once the sale had been finalized. But nota bly absent f rom the c ommitment is a promise by Dy

lan/Mid-American to ac cept the financing furnished by Strategic or to deal exclusively

with Strategic. The last paragraph of the commitment recognizes that the deal may not close. In that event Strateg ic would be entitled to keep the $153,750 paid in advance on the commitment fee.
The plaintiffs rely on two fe deral district cour t cas es, Teachers Insurance &Annuity of American v. Butler , 626 F. Supp. 1229 (S.D.N.Y. 1986) and Teacher s Insuranc e & Annuity Association of

America v. Tribune Company , 670 F. Supp. 491 (S.D.N.Y. 1987), for the proposition that a loan commitmen

t at some point bec omes a bin ding obli gation o n the par t of the bo

rrower to actually borrow the funds. In the first case, howe ver, the court recites that

“Teachers agreed to lend and OCCA agreed to borrow $20,000,000 for a thirty-five y

ear term . . . .” 626 F. Supp. At 1230. In the second case, the commitment which the borrower sig ned co n tained this language: [Upon acceptance

by y ou] “our a

greem ent to purchase from y ou and your ag reement to issue, sell and deliver to u s . . . the caption ed securiti es shall beco me a bindin g agreement between u s.” 670 F. Su pp. at 494. Strategic’s commitment letter did not contain an equivalent promise on t he part o f Dylan/Mid-America

n.
We think the c ommitment w as simply a unilate ral promise to help finance the sale of the plant to Dylan. 1 It did not bind Dy lan nor Mid-American to go through with the transaction on Strategic’s terms. They

were fr ee to ac cept a

better d eal if the y f ound one. For that

flexibility

they-6-

paid a price, a $153,000 fee that was fully earned and non -refu ndable the day they signe d the commitment. In a case with similar facts, the Califor nia Court of Appeals said:
It nowhere bound the

plaintiff s’ assignor

to perform the conditions precedent to the company’sobligation to furnish funds, or to solely r ely on the company

as the source of funds if the project was completed. I n such event if a take- out lo an on more f avorabl e terms had been available from another lende r, the developer was fr

ee t o take such a loan, s ubject on ly to the loss of

the stand -by

deposit. Lowe v. Massachusetts Mutual Life Ins. Co. , 127 Cal. Reptr. 23, 26 (Cal. App. 1976).

b. P IRELLI ’ S OBL IGATI ON TO SE LL TO S TRA TEGIC /FPE
In Count II of

the amended complaint

the pl ainti ffs al lege that Pirelli breached its contractual obligation to sell the property to FPE. The allegationis based on a theory that the original contract of sale has been

assigned to Strategic or FPE. The orig inal contract of

sale, however, requires that any assignment by

the buyer must be a

pproved by Pirelli in writing. The record does not contain an assignm ent, nor d oes it app ear tha

t Pirelli’sconsent w as ever sought f or an ass ignment

. The plaintiff

s also mak

e the poin t that an e nforce able

contract for the s ale of r

eal esta te may also be constructed from several documents, one of which contains the signature of the seller. See Yates v. Skaggs , 213 S.W.2d 41 (Tenn. 1948). This rule follows from two related rules: (1) it is not necessary that the contract be contained in a single docume nt, Blair v. Snodgrass , 33 Tenn. 1 (1853); and (2) it is not essen

tial that th

e party to be cha rged should

have signed each paper

forming a link in the chain of evidence, Willia ms v. Bunt

in , 4 Tenn. App. 340 (1927). But the chain must be established within the

document s themselves without resort to parol evidence. Johnson v. Haynes , 532 S.W.2d 561 (Tenn. Ct. App. 1975).
There isnothing in this rec ord that s atisfiesthat req uiremen t. In f act, as l ate as September 2, 1999, Strategic was disclaiming any right/obligation to purchase the facility . T he i ndemnity agreement

that was s ig ned cont emporaneously with the ninth extensio n agre ement co ntains this paragraph:
2. Indemnitor expressly acknowledges and a

grees th at St ra te gi c i s m er el y a prospective assignee of the Purchase Ag reement and that neither Strategic nor a ny of its managers, members, directors, office rs, employees, a

g e nts, part

ners, le nders, or successors and assigns (collectively , the “Indemnities”) ar e a co-ven turer with Indemnitor

or have a

ny l iability or oblig ations of

any kind with r

espect to the Purchase Ag re em en t, th e S el le r o r t he Pr op er ty, not withstanding the payme nt of the Extension Fee. Indemnitor fur ther expressly acknow ledges and agree s that the Indemnities shall have no responsibility to I ndemnitor if the closing does not occur und er the Purch ase Ag

reemen t and I ndemnitor

forfeit s to the Seller its E arnes t Money (as de

fined in the Purchase Agreement) or the Extension Payment.2 After oral argum ent in this case, the plaintif fs/appellants s ent this court a l etter, advisi ng it of t he exist ence of supp lem ental a utho rity tha t it believe d m ight b ear u pon our decisio n. See Ru le 27 (d), T enn . R. App. P. The supplemental authorit

y was a recent ( and as yet unpublished) opini on by the Tennessee Supreme Court st yled Trau-Med of Am erica , Inc. v. A llstate In sura nce Co mp any , et al., No. W1999 -0 152 4- SC- R11- CV. In thatop i ni on , ou r Su pr eme Co urt fo r the first tim e exp ressly a dop ted th e tort o f inten tiona l interfer enc e w ith busine ss relation ships , and set ou t the elem ents o f the to rt. The Co urt h eld th at a part y can be hel d li able for inten tiona lly int erfe ring wi th a bus ines s re lationshi p, even if t he rel ati onship i s not based upo n contr act, if the defen dant’s co ndu ct was actu ated by impro per m otive or if it em ploye d imp roper m eans. In the prese nt case, the plai ntif fs brought cl aims against the d e fend ants fo r inten tiona lly interf ering with contractual relation ships

. There does not appear to be anythi ng in the rec ord to indi cate a busi ness rel ations hip between the part ies outs ide of the contr acts we have been cal led upon t o const rue. We do not bel ieve that our hol ding that t

he obli gati ons of

the d efen dan ts under the disputed con tracts are not as broad as the plaintiffs as sert, can serve to convert those claim s to claim s for in tention al interfe renc e w ith (no n-co ntrac tual) b usine ss relatio nsh ips.

-7- The plai ntiffs seek to avoi d the statu te of fra uds proble

m by allegi ng that t

he defe ndants (Pirelli and Dylan) should be

c ompelle d to consent to the assignment by estoppel. See Baliles v. Cities Service , 578 S.W.2d 621 (Tenn. 1979). But an estoppel is available only to protect

a right, never to create one. Bank of Ma ryville v. Topping , 393 S.W.2d 2 80 (Tenn . 1965); E.K. Hardison Seed Co. v. Continental Cas. Co. , 410 S.W.2d 729 (Tenn. Ct. App. 1966). Therefore, the complaint does not allege a mutually binding obligation to sell the property to FPE.
IV.
Without a contract that

bound Dylan/Mid-America n to accept

the Strategic commitment, nor a contract to buy the

Pirelli plant, the plaintiffs do not have a claim for damage s for a br

each of those contracts. 2 It also follows that none of the defe ndants ca n be held r

esponsibl e for inducing a breach of either alleged agr

eement. The conspiracy

claim als o must fail

because it was based on an alleged conspiracy

to deprive the plaintiffs of the benefit of

the barg ain of the

Strategic commitme

nt. A civil conspiracy

is a “combination between two or more persons to accomplish by concert an unlawful purpose, or to acc omplish a purpose not in itself unlawful by unlawf ul means.” Kirksey v. Overton Pub., Inc., 739 S.W.2d 230 a t 236 (Ten

n. Ct. App., 1987). If the plaintiffs’ cla im for a breach of the commitmentfails, the

n the cons piracy

claim must

also fail. Forreste r v. Stock still , 869 S.W.2d 328 (Tenn. 1994).
The claims for specific relief must also be dismissed since there is no contract by which FPE co ul d a cq ui re th e t it le to th e p ro pe rt y.
V.
The claims against GMACCC require a closer analy sis, since the plaintiffs have alleged that they had a bind

ing comm

itment with

GMACCC that

by its te rms did not expire until January 3, 2000. They also alleg e that the closing date was extended to Februar y 28, 2000 and that sui tabl e-8-

bonds had been secured to replace the Frontier bonds before January 3, 2000. We think the se allega tions are mere inf erence s or conc lusions.
The GMACCC commitment set an expiration date o f J an ua ry 3, 2000 “u nless GMA CCC agrees in wr it in g t o a ny e xtension.” T he complaint does not allege that GMACCC executed a writing extending

the expira

tion date , and the p laintiff s did not at

tach an e xhib it satis fying tha

t require ment. Nor does the complaint contain any facts under which

GMACCC could be held

to have waivedthat requirement. See Gold Kist Inc. v. Pillow , 582 S.W.2d 7 7 (Tenn. Ct. A pp. 1979). Therefore, the allegation that GMACCC extended the e xpiration da

te of its c ommitment issimply a conclusion without any facts alleged to support it, and is not entitled to be taken as true. See Swallows v. Western Electric Co., Inc. , 543 S.W.2d 581 (Tenn. 1976).
The allegation on information and belief that “suitable” bonds had been found by January 3, 2000 does not satisfy the written re qu irement t

h at bonds “acceptable to [GMACCC]” must be supplied. Theref

ore the c omplaint do es not con tain an a llegat ion that the

conditi ons preceden t to closing had all been satisfied.
Since the GMACCC commitment expired on January 3, 2000, the other def endants cannot be held li able for

inducing a breac h of that c ommitment.

VI.
The fraud claim is also separate from the claims based on contract. Therefore it must be de alt with sepa rately . The alle gationsof frau d are co ntained i n these pa ragra phs of the complain t:
46. By

representations and omissions, the defenda nts intenti onally

led Strate

gic and FPE to believe that Strategic and FPE were to be involved in

the cl osin g, withthe intent to pr

event Str ategic and FPE from enforcing their rights to the Facility and to the moneys ea

rned by them

under the Strategic Commitme

nt.
* * *
84. The defendants intentionally throug h acts or omissions misrep resente d to Strategic and FPE that Strategic and FPE were still a part of the transaction to purch ase th e Facil ity by, amon g oth er thing s, corre spondenc e sent to S trateg ic and FPE encouraging Strate gic and FPE to aid in finalizing the terms of the transaction, including the procurement of a performance bond.
85. The defendants knew that these rep resent ations an d stateme nts to Strat

egic and FPE were false. I

n fact, the defendants intended to and did remove Strategic and FPE from the transaction.
86. The rep

resenta tions, statemen

ts, and omissions by

the defe ndants re lated to material facts of the transaction, i.e., that Strategic and FPE were an integral part of th e transa ction and that the tr

ansacti on would include the m.-9-

87. Strateg

ic and FPE

reasonably

relied upon these representations and omissions to their detriment when they did not take action to enjoin the transaction or otherwise take action to protect their rights.
The chance

llor dismiss ed the fr

aud claim b ec ause of the failure to comply with the requirements of Rule 9.02, Tenn. R. Civ. P., that“the circumstances constituting fraud or mistake shallbe statedwith part

icularit y.” There isa compan

ion rule s et forth in Rule 8 .06 t hat al l plea dings shallbe constr

ued so as t

o do substantial justice. See Ezell v. Graves , 807 S.W.2d 7 00 (Tenn . Ct. App. 1990); cf. Sullivant v. Americana Homes, Inc. , 605 S.W.2d 246 (Te nn. Ct . Ap p. 1 980 ). In City State Bank v. Dean Witter Rey no lds , 948 S.W.2d 729 (Tenn. Ct. App. 1996), the court found the co mplaint suf

ficient w here it “ specific ally

identifie s the time a

nd place of each allege d false representation, and identifies the manner in which e ach repr esentation was deemed to have been fraudulent.” 948 S.W.2d at 738.
We think that the complaintdoes fai l the particularity te st. An inspection of the complaint shows that the allegations are only general and that no particular defendant is identified as the one making the false and misleading statements. At a minimum the acto rs should be identified and the substance of each statement should be pled. We think the fraud claims we re properly

dismissed.
Even if we are wrong in affir ming the dismissal of the fraud count, we should point out that the damages resulting from the misrepre sen tation wou ld be far different from the benef it of the barga in in the Dylan/Mid-Ameri can tra nsaction. Only those damag es resulting from the misrepresentation and the reliance thereon w ould be recoverable.
VII.
The complaint also contains a claim for unjust enrichment but

the plain tiffs did n ot discuss the dismissal o f that cla

im in their

brief. Rule 27 of th

e Tenne sse e Rul es of Appellate Procedure requires that a br

ief cont ain a sta teme nt of the issues along with an argument on “the issues presented.” T he failure to comply with this rule re sults in a waiver of that issue. Blair v. Badenhope , 940 S.W.2d 575 (Tenn. Ct. App. 19 96); Taylor v. S tate , 875 S.W.2d 6 84 (Tenn . Crim. App. 1993).
VIII.
The complaint also sought punitive damages. But with the dismissal of the other parts of the complaint there are no grounds on which to base a punitive damages award. Hodges v. Toof , 833 S.W.2d 896 (Tenn. 1992).
IX.
The cha ncellor did not dismi ss the pla

intiff’s claims for

indemnity under the September 2, 1999 agreement. These claims will presumably be decided on remand.-10-

We affirm the judgment of the court below. The cause is remanded to the Chancer y Court of Davidson County for any further procee dings ne cessar

y. T ax the cost s on appe al to the a ppellant s, Strategic Capita

l Resourc es, I

nc. and F PE Funding , LL

C.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.