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

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

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# FILED September 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ POPULAR HOMES, INC., FROM THE SHELBY COUNTY CANADA TRACE, INC., CIRCUIT COURT, No. 37903 TOM LONG & KA THY LONG, THE HONO RABLE D’A RMY BAILEY, JUDGE Appellan ts, C.A. No. 02A01-9702-CV-00044 Vs. AFFIRMED IN PART AND REMANDED CLAYBORN BALL TEMPLE A.M.E T. James W atson of Ba rtlett CHURCH, a

nd REVEREND

E. For Appellants ALBERT BROWN, Charles W aldman of Memphis Appellee s. For Appellees

_______________________________________________________________ _____________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. Plaintiff s’ complaint against defendants, Clayborn Ball Temple AME Church and Reverend E. Alber t Brown, Jr ., is titled “Complaint for Breach of Contract for Sale of Real and Personal Property.” The complaint alleges that defendant Brown acting as the agen t and with authority from def endant church en

tered in to a contr act with plaintiff providing for conveyance of real propert y and ce rtain pe rsonal pr operty to the chur ch. Prior to the consummation of the transaction, Reverend Brown, for the church, assumed the duties of managing the proper ty and collecting rent, but failed to abide by the contract and pay the mortgage indebtedness and taxe s due on the properties. The contract was brea ched by default in the pa yment of the mortgage obligations and taxes and further that payment was not made for the property as require d by the contra ct. Th e complaint avers that as a result of the defenda nts’ actions, the property was foreclosed, and plaintiffs were liable for deficiencies and other expenses that should have been paid by de

fendant s. Defendant

church’s answer denied the materia l allegations of the complaint and further denied that defendant Brown was acting as its agent and servant and avers that the church had2

no involveme

nt in the tr

ansacti on with the

plaintiff s. Defe ndant Bro wn’s a

nswer d enied the material allegations of the complaint and joined issue thereon and Brown also filed a counterclaim alleging that he sustained damages because plaintiffs brea ched the contract. On May 13, 1996, at the conclusion of a rather lengthy nonjury trial, the trial court stated his findings from the bench that

defendant Brown did not have actual or appare nt authority to act for the church and that the church was not a party to the contract with plaintiff. The trial court also announced from the bench: “I will award compensatory damage s of $175,000.00 against Reverend Brown and punitive damages in the amount of $25,000.00, costs against Reverend Brown.” On Septem

ber 19, 1 996, the Court ente red judgm

ent which states asfollows: THIS CAUSE came on to be heard on May 6, 7, 8, 9, 13, and June 5 and28, 1996, b efore t he Honor able D’ARMY BAILEY, Judge of D ivision VI

II of the Circuit Court of Tennessee for

the Thirtieth Judicial District at Memphis, Shelby County, upon the Plaintiff s’ original C omplaint filed he rein, the Defend ants’ respective Answers filed in response the reto, the Defendant E. ALBERT BROWN JR.’s Coun t er-Compl aint file d in the ca use and the Plaintiff

s’ Answer filed in response thereto, the testimony of the seve ral witne sses, the

many exhi

bits , statemen

ts of coun sel, and from the entire record established in this cause, from a ll of which it a ppears t o the Cour

t as follow s: IT AFFIRMA

TIVELY A

PPEARING t

hat the Pla

intiffs’ cause ag ainst the Defendant CLAYBORN B ALL TEMPLE AM E CHUR CH is not well

taken an d that a ju dgment in f avor of t h e Defendant should be entered as to this named Defe ndant; and IT FURTHE

R APP EARING that the Defendant E. ALBERT BROWN JR. is guilty of acts of willful and intentional fraud and deceit against the Plaintiffs and that a judgment in the amount of fifty thousand andno/100 ($50,000.00) compensatory damages should be e

ntered a gainst thisDefend ant and in favor of the Plaintiffs; and IT FURTHE

R APPEARING that judgment in favor of Plaintiff s/Counter -Defendants should

be entered as to this named Defendant’s Counter-Complaint filed herein. IT IS, THE

RE FORE , ORDERED, ADJUDGED AND DECREED: 1. That judgment

in favor of the Defendant CLAYBORN BALL TEMPLE AME CHURCH be, and it her eby is gra

nted in this cause. 2. That judgment in the amount of fifty thousand and no /1 00 ($50,000.00) dollars be, and it her eb y is, granted in favor of the Plaintiffs and against the defendant E. ALBERT BROWN JR. as compensatory damages for the acts of willful an d inte ntional3 fraud and dec eit perpe trated a gainst the

Plaintiff s by this Defend ant. 3. That judgm

ent in fa vor of the Plainti f fs/Counte r-Defe ndants be, and it her

eby is, gr

anted in t his cause as to the Co unterComplaint filed herein by the Defendant E. ALBERT BROWN, JR. 4. That the costs of thi s cause be, and hereby are, assessed against Defendant E. ALBERT BROWN JR., for all of which let execution issue. Plaintiffs have appealed and present two issues for review which we

have rephrased as follows: 1. Whether the evide nce pre pondera tes agai nst the tri a l court’s findings that there was no actual or apparent a uthority for defendant Brown to act for the church and therefor e finding that the chur ch was no t a party

to the con

tract with plaintif

fs. 2. Whether

the trial court er red in co nsiderin g compar ative fa ult on the part of plaintiffs whe n the de fendant Brown was found guilty of w illful and

intentiona

l fraud a nd dece it. Since this case was tried by the court sitting without a jury, we review the

case de novo upon the rec ord with a

presumpt

i on of correctne ss of the f indings of

fact by t he trial c ourt. Unless the evidence preponderates against the findings, we must affirm absent er ror of law. T.R.A.P. 13(d). As to the first issue, from our revi ew of the recor d, we find that the evidence does not prepond erate against the finding of the trial cou rt that Bro wn had no a

ctual or appare nt author ity to act fo r the chu rch and t hat the c hurch wa s not a par ty to the c ontract

with the pl aintiffs

. As to the second issue presented for review, plaintiffs allege in their brief that the trial court applied the principles of comparative negligence in its ultimate entry of the judgment of $50, 000.00 instead of $175,000.00, which the court stated from the bench would be a war ded

. We find nothing in the record that substantiates this assertion. However, o ur review o f the record indicat es that the d amages in the amount of $50,000.00 are lower than the range of damages establish

ed by the p

roof. De fendant Brown did n ot file

a bri ef in this court and thereforedoes not

respond to plaintiff’s assertions nor does the bank make any response to that issue. The record does reflect that the trial cou rt indica ted in his st

atementsfrom the bench that4

compa rative fault might be involved, but that this theory had not been asserted by the par ties

. The trial court did call for memoranda from the parties and subsequently entered a final judgment. As we noted, the damages awarde d did not ap pear to b e within

the range of the proof offered concer ning the da

mages, a nd the ca se should

be remanded for the reconsidera tion of the damagesby the tria

l court. Since the trial court has specifically found that defendant Brown was guilty of intentional fraud and deceit, we do not believe that the plaintiff’s negligence should affect the a ward of damages

. I n Isaacs v. Bokor , 566 S.W.2d 532 (Tenn. 1978), our Supreme Court said: “In actions for

actual f raud and deceit, contribu

tory fault of the vi ctim gene rallyis not considered a defense.” Id. at 540 (citations omitted). In Bevins v. Livesay , 221 S.W.2d 106 (Tenn. App. 1949), this Court stated: The perpetrator of

a fraud should not be relieved on the ground th at his victim was negligent in believing the misrepresentation and should have made an investigation of his own. “It ha s been frequently declared that as betwee n the original parties, one who has in

tentiona lly deceive d the othe

r party to his prejudice i s no t to be heard to say, in defense of the charge of fraud, that the innocent party ought not to have trusted him or was guilty of negligence in so doing.” 23 Am.Jur. 948. Bevins , 32 Tenn. App. 1, 8, 221 S.W.2d at 109. Plaintiffs also asse

rt that the trial judg e erroneously fa iled to award p unitive damages after announcing from the bench that he wo

ulddo so. An a

ward of punitive d amages lies within the discre tion of the trier of fact. B.F. Myers & Son of Goodlettsville, Inc. v. Eva ns , 61 2 S.W.2d 912 (Tenn. App. 1980). We find n o abuse o f discre tion in this rega rd by the t rial cou rt. The judgment of the trial court in favor of defendant Clayborn Ball Temple AME Church is affirmed, and th e judgmen t as to liab ility agai nst defe ndant Bro wn is aff

irmed. Th

e case i s

r emanded to the trial court for further consideration of the dama ge award against defend an t Brown consistent with this Opinion. Costs of the appeal are assessed against the app el lee, E. Albert Brown, Jr.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:5

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE