FILED

April 29, 1998

Cecil W. Crowson

Appellate Court Clerk

RAYMOND O. HAMPTON, ) DAVIDSON CHANCERY

) No. 96-1322-II

Appellant )

) Appeal No:

v. ) 01A01-9711-CH-00640

)

TENNESSEE TRUCK SALES, )

INC., )

)

Appellee )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CHANCERY COURT

AT NASHVILLE, TENNESSEE

HONORABLE CAROL McCOY, CHANCELLOR

G. Kline Preston, IV

Washington Square Two

222 2nd Avenue North

Suite 416

Nashville, TN 37201

ATTORNEY FOR PLAINTIFF/APPELLANT

Gerald C. Wigger

W. Carl Spining

ORTALE, KELLEY, HERBERT & CRAWFORD, LLP

200 Fourth Avenue North

Third Floor

P. O. Box 198985

Nashville, TN 37219-8985

ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
1

Sealed Pow er and Federa l Mogul pro vided the repair p arts.

BEN H. CANTRELL, JUDGE

RAYMOND O. HAMPTON, ) DAVIDSON CHANCERY

) No. 96-1322-II

Plaintiff/Appellant )

) Appeal No:

v. ) 01A01-9711-CH-00640

)

TENNESSEE TRUCK SALES, )

INC., )

)

Defendant/Appellee )

O P I N I O N

Appellant purchased a used truck from seller [appellee] then filed a

complaint against appellee, along with the manufacturers of refurbished parts,

alleging that a subsequent $7,330.00 repair bill was occasioned by their breach

of express and implied warranties on the truck. The parties entered into an

agreed order which stipulated that the seller and manufacturers would share the

cost of repairs and deliver the truck to appellant in good condition. Appellant

took possession of the truck but seven months later filed this RULE 60.02

motion to set aside the agreed order. 

The trial court dismissed the motion based on the doctrine of laches.

We affirm the judgment of the trial court.

Raymond Hampton [appellant] purchased a truck from Tennessee Truck

Sales, Inc.[appellee] in February 1995 which soon required extensive repair,

performed by appellee. Appellant refused to pay the $7,330.00 repair bill,

maintaining it was the responsibility of the seller pursuant to warranty. 

Appellee refused to return the repaired truck to its owner until the bill was paid.

Appellant filed a complaint on April 26, 1996 against appellee, along

with Sealed Power Corporation and Federal Mogul Engine Products1

 for breach
of express and implied warranties. The complaint was dismissed by the entry of

an agreed order on September 12, 1996 in which Sealed Power and Federal

Mogul agreed to pay $2,400.00 each to Tennessee Truck Sales, and Tennessee

Truck Sales agreed to accept that sum as payment in full of the repair bill and to

return his truck to him “in good working condition.”

Appellant took possession of the repaired truck from Tennessee Truck

Sales in September 1996. Seven months later he filed this RULE 60.02 motion

to set aside the agreed order, alleging material misrepresentation in the

inducement to dismiss his complaint. He complained that when the truck was

returned to him it was not in good working condition and had over $7,000.00 in

body damages caused while in the exclusive possession and control of appellee.

Appellee argued that appellant had never mentioned any problems with

the truck until seven months after it was returned to him. 

The trial court denied appellant’s motion to set aside the agreed order,

specifically finding that 

“the Plaintiff’s claim should fail on the doctrine of latches in that the

plaintiff delayed over seven months before petitioning the court for

relief. During that period of time, Defendant Tennessee Truck Sales,

Inc. was prejudiced by changed conditions not only in its rights as to

the Plaintiff but also the condition of the vehicle in question.”

We agree with the trial court that appellant was guilty of laches. This

equitable defense involves an inexcusably long delay coupled with injury to the

rights of another resulting from the delay. Jansen v. Clayton, 816 S.W.2d 49

(Tenn. App. 1991), citing State ex rel Elvis Presley v. Crowell, 733 S.W.2d 89

(Tenn. 1987); In Re: Estate of Darwin, 503 S.W.2d 511 (Tenn. 1973). 

The appellant admits that he took possession of his truck in September,

1996, but says the truck was not returned in good working condition and that

“It had five or six serious oil leaks, the engine was sucking air, one of

the heads was seeping, it sounded like it had several cracked
2

If nothing else, $7,00 0.00 in b ody damage would have be en readily apparen t.

injectors, the batteries needed replacing along with flat tires, and [it

had] over $7,000.00 in body damages caused while in the exclusive

possession and control of [appellee].”

 Although the problems with the truck were such that he should have

noticed them immediately upon taking possession,2

 the plaintiff waited seven

months to file a motion to set aside the agreed order. After that length of time,

the appellee cannot reasonably be expected to prove the condition of the truck

when it was delivered to appellant. These circumstances justify the application

of the doctrine of laches.

Appellant attacks the trial court’s denial of his motion as an abuse of

discretion. A RULE 60.02 motion addresses the discretion of the trial court, and

such decision shall not be disturbed except upon a showing that the trial court

abused its discretion. Underwood v. Zurich Ins. Co., 854 S.W.2d 94 (Tenn.

1993). A final judgment from which relief is available and otherwise

appropriate shall not be set aside unless, considering the whole record, error

involving a substantial right more probably than not affected the judgment or

would result in the prejudice to the judicial process. T.R.A.P. Rule 36(b). We

find no error by the trial court and affirm the judgment at the cost of the

appellant.

_______________________________

William H. Inman, Senior Judge

CONCUR:

___________________________

Henry F. Todd, Presiding Judge

_________________________
Ben H. Cantrell, Judge