# FILED
Novemb er 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ALEXANDER ZANETIS, and wife, THELMA ) ZANETIS, ) ) Plaintiffs/

Appellants , ) ) Davidson Cir

cuit ) No. 96C-135 VS. ) ) Appeal No. ) 01A01-9705-CV-00203 DAVID MCMACKIN and BOATMEN’S ) NATIONAL MORTGAGE COMPANY, INC., ) ) Defendants

/Appellee s. )
IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEAL FROM THE DAVIDSON CIRCUIT COURT

AT NASHVILL E, TENNESSEE HONORABL E HAMILTO N V. GAYDEN, JR. , JUDGE
CHARLES GALB REATH, #2779 211 Union Street, Suite 901 Nashville, Tennessee 37201 ATTORNEY FOR PLAI

NTIFFS/APPEL

LANTS WINSTON S. EVANS, #6281 EVANS, JONES & REYNOLDS 1810 First Union Tower 150 Four th Avenue , North Nashville, Tennessee 37219-2424 ATTORNEY FOR DEFENDANTS/APPEL LEES 

### AFFIRMED A ND REMAND ED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE CONCUR IN SEPARATE OPINI ON: WILL IAM C. KOCH, JR., JUDGE-2-

ALEXANDER ZANETIS, and wife, THELMA ) ZANETIS, ) ) Plaintiffs/

Appellants , ) ) Davidson Cir

cuit ) No. 96C-135 VS. ) ) Appeal No. ) 01A01-9705-CV-00203 DAVID MCMACKIN and BOATMEN’S ) NATIONAL MORTGAGE COMPANY, INC., ) ) Defendants

/Appellee s. )



## OPINION

The captione d plaintif

fs have a ppealed from a summary

judgmen t dismissing

their suit agains t the cap tioned defendant s.

Plaintiff s single issue for review b y th

is Court is: Was the Court

in error in granting defe

ndants’ motion for dismissal, there being disputed issues of material fact to be re so lv ed by a ju ry?
The rec ord ref

lects the following

undispute d facts:

In 1986, pla

intiffs purchas e d a home, financed by National Mortgage Company . The loan agreement

pr ovided for a portion of each installment paid to be credited to an e scrow account to pay taxes and i nsuranc e. Plaintif fs purchas ed insurance directly and paid for it without chargingit to the escrow account. As a result the escrow a ccount developed a

surplus. Plaintiffs demanded

that the surplus be credited upon the principal of the secure d debt, but the parties could not agr ee upon th

e amount to b e credited. Plaintiffs’ legal counsel demande d a correct
accoun ting. The mortgage company threatened acce le ration of the loan and foreclosure and engag ed the at

torney , David Mc Mackin, t o deal wit h plaintif fs’ claims.-3- On March 24, 1995, plaintiffs sued the mortgage company only, for damages, demanding
a jury. David McMac

kin was no t named a s a defen dant. Whil e the ac tion was pen ding, plaintiffs found a b uye

r for the ir home a nd their a ttorney asked Da vidMcMackin, counsel for the mortgage company , for a “pay -of f figure” (the amount nece ssary to satisfy the mortgage). David McMacki n advised

plaintiff s’ counsel that he could not provide such a figure while the litigation was pend

ing bec ause the

re were charg es due fo

r fee of counse l as provide d by the mortgage. Counsel for plaintiffs notified M r. McMac kin that the

suit would be dismissed. Mr. McMacki n never t

alked to p laintiff

s about the

dismissal.
On May 30, 1995, the Tria l Court entered the following order: It appearing to the Cour t, as evidenced by

the signatures of counsel below, that the parties have set

tled their dispute herein, with Plaintiffs to bear the court costs and the action to be dismissed with prejudice. IT I S HEREBY ORDERED, ADJUDGED AND DECREED that this action against Defendant Boatmen ’ s National Mortgage Company, In c. is her eby dismissed with prejudic e, with all court c osts to the P laintiff s. (Signature) Hamil ton V. Gayden, J udge APPROVED FOR ENTRY: (Signature) James L. Harris, #14173 3221 Nolensville Road, Suite 102 Nashville, TN 37211 (6150 832-0138 Understood and Agreed: Attorney for Plaintiffs (Signature) Alex W. Za

netis (Signature) Thelma Z anetis
MCMACKIN, GARFI

NKLE, MCL

EMORE & WALKER By : (Signature) David W. McMackin, #3451 First Union Tower, 16th Floor 150 Four th Avenue

North Nashville, TN 37219-2758-4- (615) 255-4545 WYATT, TAR RANT & COMBS By : (Signature) Janet P. Sparkman, #9607 1500 Nashville City Center 511 Union Street Nashville, TN 37219 (615) 244-0020 Attorneys for D efendant

On December 1, 1995, plaintiffs filed a Rule 62.02 motion to set aside the dismissal of their suit for fra ud and misc onduct of

adversa ry counsel.

On January 2, 1996, the

Trial Court entered

an order overruling the Rule 60.02 motion, reciting the evidence upon which the dec ision was based.
On May 21, 1996, plaintiffs filed a second Rule 60.02 motion.
On October 8, 1996, the Trial Court overruled the second Rule 60.02 motion.

On January 9, 1996, plai ntiffs filed a n ew suit und er a new number a

gainst D avid McMacki n only , alleg ing subst antially the same

facts a lleged in the pre

vious suit a

gainst Boatmen ’s Mortg age Com pany which wa s not name d as a def endant in the new c omplaint.

On March 5, 1996, plaintiffs moved for leave to add Boa tmen’s Mortgage Company as a defendant.

On October 6, 1996, the Trial Court overru led th e moti on to add Boa tmen’ s Mort gage Co mp an y.-5- On Januar y 29 , 1997, the Trial Cour

t entere d an orde

r overr uling pla intiffs’ motion to compel di sc ov er y, partially g ranting “the defendants’ motion to dismiss,” otherwise overruling “defendants’ motion to dismiss,” reserving the question of the reasonableness of attorney ’s fee, and gr anting a T.R.A.P. Rule 9 appe al.

There is no record that plaintiffs pursued the R ule 9 app eal. Plaintiffs filed the above quoted notice of appeal on March 11, 1997.

Plaintiffs filed a n arrativ e stateme nt of th e evidence, b ut, on April 23, 1997, the Trial Judge sustained a

“motion of the defendants” to strike the statement of the evidence. The record contains no evidence that the p laintiff s reques ted that th

e Trial Judge per

form his “high judicial function” of “settling the bill of exceptions,” T.R.A.P. Rule 24(e) and (h), Anderson v. Sharp , 195 Tenn. 274, 259 S.W.2d 521 (1953); Rose v. Third National Bank , 27 Tenn. App. 553 (1945).

The orde r of Janua ry 2, 1996, ov erruling

the first Rule 60.02

motion stat

es: Becau se the plain

tiffs des ired to pu

t on test im on y in support of their mo tion, the court scheduled an evidentiary hearing at 1:00 p.m. on that afternoon. At or about that time an evidentiary he aring was held wherein the plaintiffs put on proof to support the allegations in their motion and the defendant pu t on p roof to rebut those allegations. After hearing this testimony

and arg ument of c ounsel it

appear s to the court that the plaintiffs have failed to carry the burden of proof necessary

under Rule 60.02 to set aside the agreed order of dismissal that was entered by this Court on May 30, 1995. Sp ec if ic al ly, the court

finds that there was no evidence of any fraud or misconduct on behalf of the defenda nt’s coun sel, David W. McMackin. The cour

t affirm atively

finds tha t in all of his d ealin gs with the pl aintiffs , David W. M cMackin never didanything to de ceive them and was in fact open and fort hrig htabout the

position he

was takin g on beh alf of his client, the defendant in this case.
Plaintiff s’ suit against David McMackin is barred by the doctrine of collateral estoppel because the plai nt iffs are

bound by

the fina l judgme nt of the T

rial Cour t in their f

ormer suit ag ainst th e m or tg ag e c om pa ny. Loveman C o. v. Bay less , 128 Tenn. 307, 160 S.W.2d 841 (1913); Fourakre

v. Perry , Tenn. App. 1983, 667 S.W.2d 483.-6- Appellan ts cite Collins v. Binkley , Tenn. App. 1988, 750 S.W.2d 737, wherein a lawyer, who knew that plaintiffs were depending upon him to prepar e a valid and effective

transfer of title, made an error in the form of acknowle dgment. The case is distinguishable upon the fac ts.

In Stinson v. Brand , Tenn. App. 1987, 738 S.W.2d 186, cited by appellants, the lawy ers for the seller

denied any duty

to the purchasers, but they admitted that they

inten ded to charge the purchaser for preparing the documents of transfer, and one of the lawy ers was named as trustee in the trus t deed. T he case is disting uishable upon the f

acts.

In the present case, the plaintiffs, the sellers, were notjustif

ied in relying

upon the attorney for the company

ho lding the mortgage on their prope rty, espec ially when they were plaintiffs in a pending laws uit agai nst the mortgage company about one of the very

items of information imparted to them by the lawy er for the m ortgage com pany; and they

were represented

by c ounsel in t

hat pending laws uit. No evidence i s found to s u ppo rt a jury ver dict
or judgment

a gainst t he only defenda nt, David McMacki n. The other defe ndant is no t a party to this app eal.

The judgmen

t of the Tr

ial Court isaffirme d. Costs of t his appea l are taxe d again st appella nts. The c ause is r

emanded to the Tri al Court f

or further nece ssary

procee dings.


### AFFIRMED A ND REMAND ED

_________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

_________________________________ BEN H. CANTRELL , JUDGE-7-

CONCUR IN SEPARATE OPINI ON: WILL IAM C. KOCH, JR., JUDGE