1 Rule 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 ac tions of the trial court by memorandum 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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED April 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ KERRY GARLAND, FROM THE MAURY COUNTY CIRCUIT COURT, Nos. 7563, 7564 Plaintiff-Appellee, THE HONORABLE WI LLIAM B. CAIN, JUDGE Vs. C.A. No. 01A01-9710-CV-00570 JIM BONNER, Individually and d/b/a EZA AQUAGLASS POOLS, AFFIRMED Defendant-App

ellant. C. Tim Tisher of Colum bia For Appellees KEN HOPKINS and wife, PAM HOPKINS, William C. Barnes of Columbia Plaintiffs-Appel

lees, For Appellant Vs. JIM BONNER, Individually and d/b/a EZA AQUAGLASS POOLS, Defendant-Appellant.

_______________________________________________________ _____________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. This is an appeal of two cases consolidated for trial. Both cases originated in the General Sessions Court of Ma

ury County, Tennes see and are style d as follows: Ken Hopkins and wife Pam Hopkins, Plaintiffs, vs. Jim Bonner, Individually and d/b/a EZA Aquaglass Pools, Defendant.

___________________________________ Kerry Garland, Plaintiff, vs. Jim Bonner, individua

lly and d/b/a EZA Aquaglass Pool

s, Defendant. The Plaintiffs have sued the Defendant for damages arising from the alleged breach of contracts for the construction of

swimming pools on the respective Plaintiffs’ property. After
a judgment for each set

of Plaintiffs in the amount of $10,000.00 was entered in general sessions2

court, Defendant Jim Bonner (Bonner) appealed for a trial de novo in circuit court. The cases
were consolidated for trial in the circuit court, and at the conclusion of an evidentiary hearing, the t rial court entered judgment for each set of Plaintiffs against Bonner in the amount of $10,000.00. Bonner

has appealed, a

nd the sole issue fo

r review as set ou

t in his brief is: Whether the court erred in overruling the motion to dismiss based on the corporate status of EZA Aquaglass pools, Inc. There is no transcript, and the statement of the evidence leaves much to be desired. The record indicates that the

Garland contra

ct was signed Nove

mb er 25, 1992, and the Hopkins contract was signed February 5, 1993. Both contracts are signed by the defendant, Jim Bonner,
as “seller,” without any indication that there was a signing in a representative capacity. Bonner testified that he was president of an Alabama corporation

by the name of EZA

Aquaglass Pools, Inc., and submitted copie s of in come tax retur ns for the years 1 990 through 1994. He also proffered a business license and

tax receipt for the City of Columbus for 1994 and December, 1993, and sales tax certificate of registration from the Te nnessee Department of Revenue effective June of 1992. He a dmits that EZA Aquag

lass P ools, Inc. , was never registered and qualified to do business in the Stateof Tennessee, and his testimony was the only proof that the corporation was in good standing in the State of Alabama at the time the contracts were made. Bonner stated that the co

ntracts were ma

de with the corporation. Plaintiffs testified that they entered into the contracts with Bon ner ind ividually, and there is no clear indication that they were dealing with any entity other than Bonner. B onner asserts that by vir

tue of T.C.A. § 48-2

5-102 (f)(1995)

he cannot be hel d personally liable. The provision relied u pon states that “th

e failure of a f

oreign corpora

tion to obtain a certifi cat e of authority doe s not impair the vali

dity of its corpora

te acts or preve

nt it from defending any proceeding in this state.” Id . We believe Bonne r’s reliance on

this statute is misplaced. The sui ts in this appeal ar e suits against Bonne

r individually and a

re not suits against a corporation. T

he real question i

nvolved in

this appeal is whether Bonner is liable as an individual based upon the contracts in question. As previously indica

ted, the signatory

clauses of both

contracts simply de

signate Bonner
as a seller. Bonner’s signatur e is not accompanied

by any language in

dicating he was a

cting in
a representative capacity of a corporation or of

any other entity. W

hen a corporate

fiduciary’s signature is preceded by the corporation’s name and language denoting the re presentative capacity of the fiduciary, only the corporation is bound. Bill Walker & Assoc., Inc. v. Parr ish ,3

770 S.W.2d 764, 770 (Tenn. App. 1989). Generall y, if a party fails

to designate in the contract that the part y is signing the contr act in a represe

ntative capacit

y, the party is per

sonally liable for the terms of the co

ntract. See id. ; Anderson v. Davis , 234 S.W.2d 368, 369-70 (Tenn. 1950); Dominion Bank of

Middle Tenn. v. Crane , 843 S.W.2d 14, 1 8-19 (Tenn. App. 1992); North Rive r Par tners, Inc. v. Winston , No. 03A01-9409-CV-00323, 199 5 WL 59999, *5-6 (Tenn. App. Feb. 14, 1995); se e also 18B Am. Jur. 2d Corporations §§ 1839-40 (1985)
. In addition to considering the documentary evidence, the trial court he ard te stimony regarding the identity of the parties to the contract. See International House of Talent, Inc. v. Alabama , 712 S.W.2d 78 (Tenn. 1986). The Plaintiffs testified that they dealt with Bonner as an individual when he signed the contract. Bonner, of course, testified to the contrary, stating that he was contracting on behalf of the corporation. When the resolution of the issues in the case depends upon the truthfulne ss of witnesses, the trial judge who has the opportunity to observe the witnesses and their manner and demeanor while testifying is in a f

ar better po sition than this court to decide those issues. Mays v. Brighton Bank , 832 S.W.2d 347, 351-52 (Te nn. App. 1992). The we ight, faith, and cr

edit to be given to any witness’s testimony lies in the first instance with the trier of fact, and the credibility

accorded will

be given great weight by the appellate court. Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). Since this case was tried by the trial court sitting without a jury, we review the case de
novo upon the record with a presumption of c

orrectness of th

e findings of fac

t by the trial court

. Unless the evidence pr

eponderates ag

ainst the findings,

we must a

ffirm, absent error of law. T.R.A.P. 13 (d). Although the trial court made no specific f indin gs of fact, it is implicit from the trial court’s judgment against Bonner per sonally that he found Bonner to have committed himself contract

ually as an individu

al. From our review of

the oral proof an

d the contractua

l exhibits in

the record, we do not find that the evidence prepon derates a gainst the trial court’s findings that Bonner made the contracts in an individual capacity. Accordingly, the judgments of the tri

al court for Plain

tiffs, Garland and Hopkins, are affirmed. T he case is rem anded to the trial court for such further proceedings as ma

y be necessary.

Costs of appeal ar

e assessed again

st the Defendant

.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:4

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE