# FILED
December 17, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
JAM ES C. WA LLA CE and wife, ) SUE H. WA LLA CE, ) ) Plaintiffs/App ellants, ) Gibson Chancery No. 12357 ) VS. ) A ppeal No. 02A 01-9702-CH- 00048 ) BOBBY J. HA RDIN and wife, ) FRANCES L. HA RDIN, ) ) Defendants/Ap pellees. )
APPEAL FROM THE CH ANCER Y COU RT OF G IBSON COUN TY

AT TRENTON, TENNESS EE THE HONORABLE GEORGE R. EL LIS, CHANC ELLOR

FLOYD S. FLIPPIN B. CH ADW IC K R IC KM AN ADA MS, RYA L & FLIPPIN, ATTORNEYS-P.C. Humboldt, Tennessee Attorneys for Appellants
BILLY C . BLOW McLemoresv ille, Tennessee Attorney for Appellees

AFFIRMED IN PART, REVERSED IN PA RT

ALAN E. HIGHERS , J. CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J. In this action to reform a deed, Pl aintiffs, James C. W a llace and Sue H. W allace2

(“Wa llaces”), appeal the trial court’s judgmen t ratif ying, approving , and confirming the 1993 warranty deed (“deed”) and granting Defenda nts Bobby J. Hardin and F rances L. Hardin (“Hardins”) $1,000 in attorney fees. Mr. and Mrs. W allace also appeal the trial cou rt’s denial of their motion to alter judg ment and/or for a new tria l. For reasons stated hereinafter, we affirm the trial court’s jud gment in part and revers e in part.

FACTS

On November 12, 1995, the Wal laces filed acomplaint to reform a deed in the Chancery Court of Gibson County, Tenn essee, naming the Hardins a s def e ndants. Thereafter, on December 29, 1 995, the Hardin s filed their answer and a counter complaint seeking ratification, approval, and confirmation of thedeed, a s well as damages and expenses. The W allaces filed their answer to the counter complaint on Januar y 22, 1996. The trial court heard this matter on August 27, 1996, and rendere d a decision in open court on August 28, 1996, ratify ing, approv ing, and confir ming the deed. Additionally , the trial court taxed an at torn ey f ee of $1,000 against t he Wallaces. This order was entered on September

26, 1996. Subsequent ly, on Oct ober 21, 1996, theWallaces filed a motion to alter the judgment of the trial cour t and/or a motion for a new tr ial. The Hard ins filed a response to these motions on October 25, 1996, whi ch included a pr ayer for an additional attorney fee of $250 to be taxed to the W allaces. On December 4, 1996, the trial court heard oral arg uments on these motion s an d rendered its decision in open court deny ing the Wallaces’ motions and deny ing the Har dins’ prayer

for an additional $250 in attorney fees. This order

was entered on December 13, 1996. The Wallaces filed their notic e of appeal on January

3, 1997.

In 19 93, the Hardins appr oached the Wallaces regardi ng whether the Wallaces would be interested in selling certain property to the Hardins commonly known as “Rogers Farm.” The W allaces had purchased this f arm in 1973 from Mode ane Flowers (“Flowers”) and Annie Clayton ( “Clayto n”). Later, the Wallaces indicated that t hey would be i nterested in selling the farm. James Wallace (“Mr . Wallace”) and Bobby Hardin (“Mr. Hardin”) met3

at the farm and performed a “walk around” wh ereby Mr . Hardin mark ed the boundary

lines of the farm atthe direction of Mr. W allace. Although the W allace’s deed from Flowers and Clayton indicated the farm consisted of approximately 63 acres, Mr. W allace informed Mr. Hardin that the actual acreage of the farm was approximately 51 to 53 acres. Mr. W allace had learned that his farm encompassed les s acreage t han the Flow ers and Clayton d eed indicated when he had a survey conducted by Jack Jetton in 1981 (“Jetton survey”). The parties agr

eed to a purchase price of $35,000.

Mr. Hardin advised Mr. Wa llace that he wanted to have the fa rm surveyed to which Mr. Wallace had no objection. Thereafter, the s urvey was performed by Mr. H ardin and his son, Steve Hardin under the supervision of Lynde ll Daniel, who vi sited the farm tw ice. This surve y depicted t he farm as consist ing of 52.84 acres.

The Wallaces first learned of a di spute regar ding the farm morethan a year a fter the sale. The Wallace’s son went to the back side of the W allace’s hom este ad pr ope rty, which borders the pr

operty sold to t he Hardins, i n order to “b ushhog” thi s property . The W allace’s son discovered that the property had already been cut. Thereafter, Mr. W allace
ca lled Mr. Hard in to thank him for “bushhogg ing” Mr . Wallace’s property. Mr. H ardi n indicated that t he property in question belonged to him and no t Mr. Wa llace. This cause ensued.

The disputed boundary line is the w estern boundary line of the farm in question . Mr. W allace testified that th e boundary l ine ran due sout h from Ste ve Hardin’s southeast
corner along an old fence row, and t hat this was the boundary used in his “ walk ar ound” with Mr. Hard in to mark thewestern boundary of the farm be ing sold. Mr. Hard in opposed this testimony stating that Mr. W allace and he used the ditch line to establish the bou ndary in question at the “walk around.”

It was at the closing that the W allaces first learned that thesurvey conducted by the Hardinsindicated that the area of the farm was 52.84 acres. There is some disput e as to4

whether the W alla ces we re sh own th e pla t of the H ardi n sur vey a t the closing. The Wallaces contended that the y were only provided wi th the description of the farm contained in the deed. The Hardin s contended that theplat was provided to the W allaces. It is undisputed that the descript ion in the deed clearly mentions the ditch as the western boundary. H owever , the Wallaces asserted that they did not underst and the descrip tion and signed the de ed because the deri vativeclause indi cated that the farm being conveye d was the same farm purchased from Fl owers and C layton in 1973.

The Wallaces called five witnesses all of which testified that the W allace to Hardin deed did not contain an accurate description of the farm originally sold to the Wallaces by Flowers and Clayt on. All five witness testified that

they were familiar with the boundary in question and that this western boundary followed the old fence li ne and not the ditch line
as the Hard ins con tended. Additional ly, four of thesewitness es asserted the y saw the markings that Mr. Wallace and M r. Hardin had placed on thei r “wal k around” on the eastern boundary but found no such mark ings on the western boundary of the farm. None of these wit nesses was privy to the negotiations nor present at the “walk around” with Mr. Wallace and Mr. Hardin.

The W allaces called Tony Reasons (“Reasons”), a civil engineer and surveyor, who had p lotted bo th the Jetton survey of 1981 and the survey prepared by the Hardins. Reasons t estified that the pr operty inv

olved in bot h survey

s was di fferent, and that th e Hardin’s survey did not close within an acc e ptab le de gree o f su rveyin g accu racy. Reason s, however , did n ot sur vey or in spect the farm

. Lyndell Daniel testified that he is
a surveyor for the Tenness ee Department of Transpor tation and has sur

veyed over 200,000 pieces of proper ty. He di sagreed w ith Reasons te stimony that the survey

did not close within an acceptable deg ree of accuracy and asserted that conside ri ng the many crooks, tur ns, and angles , it was not surpris ing that the s urvey failed to close.

The last wi tness called by the Wallaces was Linda Tilley ( “Tilley” ), the Chief Deputy of the Gibson County Assessor of Prope rty. Ms . Tilley tes tified that the deed fr om the5

Wallaces to the Hardi ns contained a different descriptio n of the farm than was recogniz ed byt h e F l o w e r s a n d C l a y t o n d e e d t o t h e Wa llace s. Tilley was not present at the negotiations

between Mr . Wallace and Mr. Hardi n.

Base d on the foregoing evidence, t he trial cour t found that the Wallaces failed t o carry their burden of proof in establis hing a need for r eformation of the deed in questi on. The trial cour

t ratified, appr

oved, and confir med the deed from the Wallaces to the Hardins and awarded t he Hardins $1, 000 in attorney fees. This appeal foll owed.

DISCUSSION

Inasmuch as this cas e was tri ed by the cour t below sitting without a jury, this court’s review on appeal is g overned by Tennessee Rule of Appell ate Procedure 13(d), which directsus to rev iew the ca se de novo

. Rober ts v. Ro bertson County Bd. of Educ. , 692 S

. W. 2d 863, 865 (Tenn. C t. App. 1985); Haverlah v. Memphis Aviation, Inc. , 674 S.W.2d 297, 300 (Tenn. Ct. App . 1984 ); T .R.A.P. 13(d) . In conductinga de novo review of the record below, however, thi s court must pr esume that the trial court’s findings of fa ct are correct. Unde r this stan dard of re view, we must affirm the tri al court’s decision unles s the trial court committed an er ror of law affecting the result or unless th e evidence preponderatesagainst the trial cour t’ s findings. Roberts , 692 S.W .2d at 865. In this regard, when a confli ct in testimony requires

th e t rial court

to make a determin ation regarding the credibility of a witness or witnesses, such a determination is “binding on the appellate court unless from other real evidence the appellate cou rt is c ompelled to conclude to the contrar y.” Hudson v. Capps , 651 S.W .2d 243, 246 (Tenn . Ct. App. 1983).

This is an action to reform a deed. A court of chancery ha s the power to reform and correct errors i n deeds produced by fraud or mistake

. Barnes v. Gr ego ry , 38 Te nn. (1 Head) 230 (1858). A court of equity has the po wer to r eform a d eed if the parties in interest are before the cour t and have an oppo rtunity to be heard, and t he case is made out by full and s atisfactory proof. McClell

and v. Payne , 84 Tenn. 709, 712 (188 6). To be6

the subject of

correctio n, a mistake in an instrument mu st have been mutual or there mu st have been a mistake of one party i nfluenced by the fraud of the other. Pittsburg Lum ber Co. v. Shell, 189 S.W. 879 (1916).

A mutual mistake i s one common to both par ties to a contr

act, each labor ing under the same misconcepti on; more precis ely, it is one common toall the parties, wherein each labors under the same mis conception res pecting a mater ial fact, the ter ms of the agreement, or the pro visio ns of the written instrument designed to embody such agreement. 17 C .J.S. Contrac ts § 144 (1963).

This is not a caseinvolv ing mutual mistak e. The W allaces and the Hardins were not laboring under the same misconception. On th e con trary, the Hardins believed that the farm included the ac reage bounded by the ditch li ne while t he W all aces maintained t he farm encompassed the acrea ge bounded by the old fence row. These misconceptions are diametrically opposed. The W allaces’ basic contenti on in this cas e is that the des cription in the Wallace to Hardin deed was for more proper ty than the Wallaces intended to
conve y. The W allaces contend that the re was a mistake made due to th e incorrect survey measurements of Mr. Hardin. H owever , the Hardins insist that

the deed was correct. The Hardinsfurther assert

that the deed is re presentative of the boundaries e stablished v ia the negotiations

and “wal k around” by

Mr. Wallace and Mr. H ardin.

The description in the deed came from the survey pre pare d by M r. Hardin and Lyndell Danie l. Th e cen tral d ispu te is wh ethe r the conve ya nce on the southwest side should follow a ditch or an old fence row. It is undisputed that Mr. Wallace and Mr. Hardin performed a “walk a round” whe rein Mr. Wallace directed Mr. H ardin wher e to mark the boundaries of th e fa rm. Mr. H ardin had no know ledge concer ning the farm or the boundaries prior tothe “walk around.” Just whe re these boundari es were mar ked on the western boundary on t his “wa lk around” i s the point at w hich the testi monies ofMr. Wallace and Mr. Har

din run converse to one another . Mr. Wallace testified t hat when Mr. Hardin and he reached the s outh end of the farm, the tw o walked up an old fence row and mar ked7

the trees along the way. Mr. Hard in, on the other hand, testified that when the tw

o reached the south end, they

walked up a ditch to estab lish the western boundary

.

Without question, the description in the dee d clearlymentions the dit ch. The deed provides, “thence, w ith center l ine of ditch and W allace homeplace line . . . to a iron pin in Stephen Hardin’s fenced property line; . . .”

The Wallaces testified that they did not understand the descript ion and, as a result, relied on thelast parag raph in the deed stating that the farm to be sold was the farm the Wallaces had obtained from Flowers and Clay ton. It seems th at Mr. Hard in had n o knowled ge that the farm obtained by the Wallaces from Flowers and Clayt on was any different from the d escriptio n in the deed. As mentioned above, Mr. Hardin had n o kno wl edg e of the boundaries of the farm prior to their establi shment during the “walk around.” Further, he testified that he first acquir e d knowledge of the boundaries of thi s farm when M r. Wallace directed hi m to place t he boundary markings on the ditch line and not on an old fe nce row dur ing the “w alk around.” Therefor e, acc ording to t he Mr. Har din’s testi mony, the deri vativeclause in thedeed containing reference to the F lowers and Clayton farm and what was in th e metes and bounds descript ion withi n the deed were one and the same.

To authorize a reformation for mis take, the evi dence must be clear and conclusive, Davidson

v. Greer , 35 Tenn. (3 Sneed) 384 (1855); clear, cer tain, and satisfactory, Bailey
v. Bailey , 27 Tenn. (Humph) 23 0 (1847); cle ar, convi ncing, and s atisfactory , Jones v. Jones , 150 Ten n. 554 (1 925); cle ar, cogen t, and co nvincing, Whitaker v. Moore , 14 Tenn. App. 204 (1938); full, clear, and uneq uivocal, Perry v. Pea rson , 20 Tenn. (1 Humph) 431 (1839).
Many wi tnes ses test ifie d on t he Walla ces’ beha lf. Five of thes e witness es testified that the wester n boundary foll owed an old fence line. Four testi fied t hat there w ere no markings on the weste rn bo und ary of the p rope rty. However, not one of these w itnesses
was presentduring the “walk a round” wi th Mr. W alla ce an d Mr. H ardi n and none was pri vy to the negotiations. As a result, ultimately, the trial court was faced with one man’s word8

versusthat of ano ther--Mr. W allace’s testimony concerning the negotiation s and “walk around” versus that of Mr. Hardin. After hearing the evidenc e, the trial court conclud ed that the Wallaces had not carried the ir burden to p rove mutual mistake by clear and conv incing evidence. We agree.

The evidence in this re cord does not ev ince a mutual mistake between t he parties and, ther eby, does not qual ify by theforegoing standards. Therefore, the deed cannot be reformed on this basis. The evidence does not preponderate against the find ings of the trial court. We aff irm the judg ment of the trial court finding no mutual mistake and rati fying, approving, and confirming the warranty deed given by the W allaces to the Hardins.
Concerning the issue of mistakeinduced by fraud raised by the W allaces on appeal, the Hardins contend that fraud was not pled at trial and, a s a result, cannot be raise d on appeal. Although fraud was not al leged in the Wallaces’ pleadings, w e find that evidence
on this issue w as entered at trial without objection. Additionally, the trial court ruled on this issue of fraud-induc ed mistake. He nce, this is sue is appealabl e.

Tennessee Rule of Civil Procedure 15.02 provides: When issues not r

aised by the plea dings are tried by express or implied consen t of the parties, th ey s hall be treated in all respects as if they

had been raised in the plead ings. Such a mendment of the pleadings as may be nece ssary to cau s e them to conform to the evidence and to raise these issues may be made u pon motion of any par ty at any

time, even after judgment; but failure so to amend doesnot affect the result of the trial of these issues. Tenn. R. Civ . P. 15.02. This rul e it sel f abroga tes the t ime f a ct or by prov iding that “ failure so to amend does not affect the resu lt of the trial of these issue s.” See Charles Al an Wright & Arthur R. Miller, Federal Practice and P roc edure § 1494 at 475 ( 1971). Moreov er, Rule 15.02 does not require that a conforming ame ndment be mad e and there is no penalty for failing to

do so. The rule clear ly states

that the absence of a formal a mendment or a request for leave t o amend does not affect th e re sul t of t he trial of thoseissues actual ly lit igated. See also Moore, Fede ral Pr acti ce, 1 5.13 (2) at 168- 170 ( noti ng tha t “[i] n ef fec t . . . t he pa rties may,9

byexpress consent, or by the introducti on of ev ide nce without objection, amend t he pleadings at will.”).
Thus, it is cle ar th at Rule 15.02 se eks to place s ubstance over form, and the real question before u s is whe ther or not the parties actually tried the is sue delineated by the amendment. In sho rt, th e ulti mate in quir y is whet her th ere was imp lied con sent from all parties in t his case to tr y the iss ue of mistake induced by fraud.
Generally speakin g, trial by implied consent wi ll be found wher e the party opposed to the amendment knew or should have reasonably known of the ev idence relati ng to the
new issue, did no t object to thi s evidence, and wasnot prejudic ed thereby. Because of the proof problems at t rial, the commentators war n that:

Implied consen t . . . is mu ch more difficult to e stablish and seemsto depend on wh ether the parti es recogni zed that an issue not presented by

the pleadings entered the case at trial. A party w ho knowing ly acq uiesces in t he introduction of evidence relating to issuesthat are beyond the pleadings is in no posit ion to contest a motion to conform. Thus, cons ent g enerallyis found when e vidence is introduced w ith ou t objection, or when th e party oppos ing the m otion to amend himself produced ev idence bearing on the issue. Zack Cheek Builder

s v. McLeod

, 597 S.W.2d 888, 890-91 (Tenn. 1980)(q uoting Char les Alan Wright and Arthur R . Miller , supra , § 1493 at 462-63).

We do not take lig htly the C ourt’s warning reg arding the difficulty of finding impli ed consent. Substantial evidence bear ing on the i ssue of mistake i nduced by fraud w as introduced by the Wa llaces’ counsel. Mr. W allace and Mr. Har din testified that they extensively

marked the w estern boundary of the farm in quest ion. However, four witness es testified that boundary

markings were found on the eastern boundary of the farm but that
no markings were found on the western bou ndary in di spute. One witness for the Wallaces onlysaw one mar king on the western boundary . Counsel for t he W allaces highlighted this point in his cl osing remar ks to the trial c ou rt claiming that Mr. Hardin had removed said markings from the wester n boundary of the far m.10

In order to refor m a deed, a court ha s to find mutual mistake or mistake induce d by fraud. The Hardinsknew that t his was an action toreform a deed whereby mutual mista ke
or mistake induce d by fraud had to be proven by the Wallaces in order to recover. In light of this fact, the Hardins reasonab ly should have kn own that the evide nce o f th e five witnesses

relating to boundary markings were aimed at prov ing fraud. They did not object to this evidence. Additionally, the trial court ruled on this matter, finding that the Wallaces had failed to carry their burden in proving mistake induced by fraud . Accordingly, Rule 15.02 of the Tennessee Rules of Civil Proced ure caus es the p leadin gs to conform to this evidence thereby al lowing the issue of fraud to enter into thi s case and be appealed as if it were pled in the ori ginal compl aint.

As mentioned above, mutual mistake or mistake induced by fraud must be proven byclear and conv incing ev idence. Although there was some ev idence at tri al pointing to fraud, there is st ill a lack of proof that th e W allaces had bee n induce d by frau d to sign the deed. There has been no direct ev idence other than the testimony of Mr. Wallace that the “walk around” did not include the ditch in question, and this evidence was shar ply disput ed byMr. Hardin ’s testim ony. The Wallaces could have and should have examined the description with more prudence before signin g t he deed. The eviden ce does not preponderate against t he fin dings of the trial court on this matter. We affirm the judgment of the trial court finding no i nduc ement

of fraud by the Ha rdins and confir ming the deed given by the Hardins to the W allaces.

The final issue concerns attorney’s fees. W e adhere to the rule in Tennessee that attorney’s fe es are not recoverable in the absence of a statute or a contract specifica lly providingfor such recov ery. Kultura, Inc. v. Souther n Leasing

Corp. , 923 S.W.2d 536, 540 (Tenn. 1996)(c iting Pullman S tandard, Inc. v . Abex Corp. , 693 S.W.2d 336, 338 ( Tenn. 1985) ). In this ca se, we fin d neith er. W e hold th at the t rial court erred in a warding th e Hardins$1,0 00 i n att orne y’ s fe es and , therefore, reverse the judgment of the trial court concerning this matter.11 CONCLUSI ON

Based on the foregoin g, the judg ment of the trial court is affirmed i n part and reversed in part. C osts of appeal are assessed agai nst appellants, for whi ch exe cution may issue i f necessary.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.