# FILED
April 29, 1998 Cecil W. Crowson Appellate Cou rt 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, C HANCELLOR
G. Kline Preston, IV Washington Square Two 222 2nd Avenue North Suite 416 Nashville, TN 3 7201 ATTORNEY FOR PLAINTIFF/APPELLANT Gerald C. Wigger W. Carl Spining ORTALE, KELLEY, HERBERT & CRAWFORD, LLP 200 Fourth Avenue No

rth Third Floor P. O. Box 198985 Nashville, TN 3 7219-8985 ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMAND ED

WILLIAM H. INMAN, SENIOR JUDGE

CONCUR: HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION1 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/Appell

ant )

) Appeal No: v. ) 01A01-9711-CH-00640 ) TENNESSEE TRUCK SALES, ) INC., ) ) Defendant/Appellee )

O P I N I O N Appellant purchase

d a used truck from

seller [appellee

] then filed a complaint against appellee, along w ith the manufac

turers 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 whic

h stipulated that the se

ller and manuf

acturers would sha

re the cost of repairs and deliver the truck to appellant in good condit ion. Appellant took possession of the tr

uck but seven month

s later filed this R

ULE 60.02 motion to set aside the agreed order. The trial court dis

missed the m

otion based on the doctr

ine 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. Appel

lant refused to pay

the $7,330.00 repai

r bill, maintaining it was the res ponsibility of the s eller pursuant to warra nty. Appellee refused

to return the repai

red truck to its owne

r until the bill was pa

id. Appellant filed a c

omplaint on Apri

l 26, 1996 against appe

llee, along with Sealed Powe

r Corporation and Fe

deral Mogul Engine P

roducts 1 for breachof express and im plied warranties . The compla int was dismisse

d 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 agre

ed to accept that sum

as payment

in full of the repai

r bill and to return his truck to him “in good working condi tion.” Appellant took possession of the repaired truck from Tennessee Truck Sales in Septem

ber 1996. Seven m

onths later he filed

this RULE 60.02 motion to set aside the agre

ed order, alleging

material m

isrepresentation in

the inducement to dismiss his complaint. He complained that when the truck w as returned to him

it was not in good wor

king condition and had ove r $7,000.00 in body damages caused while in the exclusive possession and control of appellee. Appellee argued th

at appellant had neve

r mentioned any

problems with the truck until sev en months after it was return ed to him. The trial court denied appellant’s motion to set aside the agreed order, specifically f

inding that “the Plaintiff’s cl

aim should fail o

n the doctrine

of latches in that the plaintiff delayed over se

ven months befor

e petitioning the cour

t for relief. During thatperiod of time, Defendant Tennessee Truck Sales , Inc. was prejudiced b

y changed conditio

ns not only in its

rights as to the Plaintiff but al so the condition of the vehicle in qu estion.” We agree with the trial court that appellant was guilty

of laches. This equitable defense i

nvolves an inexcusably

long delay couple

d with injury t

o the rights of another res ulting from the delay. Jansen v. Clayton, 816 S.W.2d 49 (Tenn. App. 1991) , citing State ex rel Elvis Presl ey v. Crowell, 733 S.W.2d 89 (Tenn. 1987); In Re: Estate of Darwin, 503 S.W.2d 511 (Tenn. 197 3). 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 sucki

ng air, one of the heads was seeping, it sounded like it had sever al crac ked2 If nothing else, $7,00 0.00 in b ody da mage would have be en readily apparen t. injectors,the batteries need ed replacing along w

ithflat tires, and

[it had] over$7,000.00 in body damages caused while in the exclusi

ve possession and c ontrol of [appellee ].” Although the problem

s with the truck we

re such that he should h

ave noticed them im

mediately 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 delive

red to appellant. T

hese circumst

ances justify

the application of the doctrine of la

ches. Appellant attacks t

he trial court’s

denial of his mot

ion as an abuse of discretion. A R ULE 60.02 motion addr esses the discretion

of the trial court,

and such decision shall not be disturbed except upon a showing that the trial court abused its discret ion. Underwood v. Zurich In s. Co., 854 S.W.2d 94 (T enn. 1993). A final j udgment from which relief is a

vailable and otherw

ise appropriate shall no

t be set aside unless,

considering the whole

record, error involving a substantial r

ight more probab

ly than not affe

cted the judgm

ent or would resu lt in the p rejudice to the judici al process . T.R.A.P. Rule 3 6(b). We find no error by

the trial court and a

ffirm the j udgment at the co st of the appellant.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

___________________________ Henry F. T

odd, Presiding Judge

_________________________Ben H. Cantrell, Judge