# FILED
July 9, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk Susanna G

illespie, a/k/a Susa

nna ) Grezegorcyk , a/k/a Susan na Kantack, ) a/k/a Susa

nna Greg g, ) ) Appeal N o. Plaintiff /Appella nt, ) 01-A-01- 9702-CH- 00083

) v. ) Chancer y Court No

. ) 20508 Steven D. Graham, ) Defendant/Appellee ) and ) Lori G. Graham, ) Defenda nt. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEAL FOR THE CHANCERY COURT OF WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE THE HONORABLE HENRY DENMARK BELL, CHANCELLOR

MARK C. ADA

MS 1113 Murfreesboro Road Franklin, Tennesse e 37064 ATTORNEY FOR PLAINTIFF/APPELLANT DOUGLAS S. HALE 312 First T ennessee Bank Bldg. Franklin, Tennesse e 37064 ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE1 (E) Payment of Note Holder’s Costs and Expenses If the N ote H olde r has re quir ed m e to p ay im me diately in full as desc ribed abo ve, th e N ote H olde r will have t he ri ght t o be pai d back by me forallof i ts cost s and expe nses in enf orci ng thi s Note to the e xtent not proh ibited by a pplicab le law. Th ose exp enses inclu de, for ex am ple, reason able attorne ys’ fees.

2 

## O pinion

This is an appeal from the decision of the Willia

mson County C hancery C ourt. Plaintiff /appellant , Susanna G

regg, cl aims the c hancery c ourt erre d when i t de nied her claim to a

ttorney’s fees, a

nd defenda

nt/appelle e, Steven D. Graham, c laims the chancery court er

red when it failed to dismiss th e claim a s outsid e the statute of limitation s. The f

acts out of

which this matter a

rose are as follow s:
Defenda ntand his ex-wife, Lori G. G raham, en tere d into an agr eement w ith Plaintiff and her hus band, Don aldKanatac k, for the lease/purchase of a piece of real estate. Defendant executed a note and a deed of trust in favor of Plaintiff and her husband on 15 Marc h 1986. In exchange for the note, Plaintiff and her husband gave Defend antand Ms . Graha m $10,477. 17, whic h they used to pay real estate commissions and to set upan escrow account f or repair s. The n ote listed t he date of maturityas “on or at

cl osing,” an d the lease

/purchase agreement listed the

date of closing as 17 Febr

uary 1988. Both the not e and the de ed con tained provisions allowing Plaint

iff to re cov er attorney’s fees if Plaintiff had to file suit to recover under each agreement. At the tim e of exec ution, how ever, th e parties m odified the note by drawin g an “X” over five consecutiv e paragraphs. On e of these paragra phs included the provisi on allowingthe note holder to recover costs and expenses under certain circumstances. 1 The par

ties fail ed to pay the

note on 17 Fe

bruary 1988 . The parties extended t

he original

lease/pur

chase agr eement f or an a dditional ye ar by executi ng a n addendum on 27 May 1988. The new closing dat

e passed w ithout inci dent and both par

ties contin

ued as they had in the c ontract f or two add

i tiona l years. A fire occurred on the property in 1990 while Plaintiff still occupied it. After the insurance

companypaid the settlement to Defendant, he evicted Plaintiff from the property.
Plaintiff filed a c omplaint ag ainst Def endant and M s. Gra

ham on28 February2 In addition, Defendant refers to Ms. Graham in his brief as the dismissed defendant. Plaintiff does not contest this reference, however, ther e is no evidence in the record of any type of dismissa

l as to Ms. G

raham. 3 It is interesting to note that Plaintiff never recorded the deed.
3 1991. The comp laint

originally

sought an ac counting of i nsurance proceeds awarded to Defen dant and con

tained the followingallegatio n: That on March 15 , 1986, Resp ondents , Steven D. and Lo ri G. Graham, as “Borr

owers”, signed a pr

omissory not

e in the amount o f $10,477.17 , accom

panied by sa

id Deed of

Trust. See Exhibits F1-F 2. Plaintiff amended the compla

int on 28 De cember 1 992 to allege fraud on th e part of Defenda nt. On 12 September 1 996, Plai ntiff fil ed a secon d amended c omplaint which cont ained a cl aim for t he loan amount evidenced by the note executed on 1 5 March 1986. The

parties a gr eed at trial t

hat after the second amendmen

t the only issue before the court was whether Plaintiff could recover the loan p rinciple a

nd interest and her at

torney’s f ees. 2 The cha

ncery cour

t ruled in f

avor of Pl aintiff i n the amount of $13,987. 02. This a

mount include d the loan pr inciple an d pre-judgm

ent interest, but no attor

ney’s fee s. Plaintiff moved for an amendedjudgment aw arding her attorney’s fees, but the court denied her m otion. Th e reafter, both parties filed notices of appeal an d later agreed on the designation

of Plaint iff as A ppellant. Attorney’s Fees
Plaintiff relies on the provisio n in the deed of trust allowing a party to recover attorney’s fee s to support her claim to fees in

this action

on the note. Defenda

nt argues that the de ed of trust and the note

are sepa rate docu ments and t

hat Pl aintiff may not recove

r atto rney’s fe es under th e note bec ause the pa rties deleted the particula r provision of the note

which dea

lt with at torney’s f ees.
Itis the opinion of this court that Plaintiff is not ent itled to a ttorney’s fees. To explain, given the parties actions, we must concl ude they intended to delete the provision in the note referring to at torney’s fee s. In addi tion, alth ough the dee d of trust provi sion relie d on by Plaint iff did al low for

attorney’s fees, it only applied to an action for

enforce ment of the

deed of tr

ust. The present a ction is on th e note, no t to enforce the deed 3 . Therefore , even if the attorney’s fee provision from the deed4 In Gamble v. Hospital Corporation of America, 676 S.W.2d 340 (Tenn. App. 1984),

this court held that an amendment did not to relate back to the original complaint which caused the action to be barred by the statute of limitations. In this case, which dealt with medical malpractice, an

amended complain t alleging that a phy sician wa s neglige nt in an ope

ration did not arise out of the

same conduct, tra

nsaction or occur rence s et forth in the orig inal comp laint, which alleged that physician had used undue force in a previous surgery.
4 were to apply to th e action on th e note, Plaintiff would still be unable to recover her attorney’ s fees.
Statute of Limitations
Defenda ntcontends t

he a pplicable statute of

limitation s is Tenne ssee Code Annotated section 28- 3-109(a)( 3). Thi s section pr ovides: “T

he follow ing actions shall be commenced within si x (6) years af ter the caus e of action accrued: . . . (3 ) Actions on contract s not otherw ise expressly provided fo r.” Tenn. Code A nn. 28-3- 109(a)(3) (1980). Thus, D efendant argues Pl aintiff ha d to file her complaint within six year s of the ma turity date or by 17 February 1994. Defendant then argues Plaintiff’s complaint was not time ly because s he did not ac tually stat e a cause of actionto recove

r the loa n principl e and interest until she filed the second amended complaint

on 12 Septe mber 1996. In respons e, Plai n tiff contends the

statute of limitation s did not bar her claim because the second amended complaint related back to the date

of the ori ginal compl aint.
Rule 15.03 of the Tennessee Ru les of Civi l Procedu re is rel evant

and provide s: “Whenever

the claim

or defens e asserte d in amende d pleadings a rose out of

the conduct, transaction, or occurre nce set f orth or att

empted to be

set forth in the original pl eading, the amendment relates back to the dat e of the orig inal plead ing.” Tenn. R. C iv. P. 15.03(

West 1995) . This R

ule repla ced the pr

evious code

section 20—1505 which gav e the tria l judges mor

e discret ion in de ciding whether amendment s relate back

. Karash v. Pigot , 530 S.W.2d 775, 777 (Tenn. 1975).

I n Ka rash , the cour

t held that a

n amended c omplaint al leging assa ult and battery due to a nonconsensual blood transfusion would relat e back t o the original complaint

which was brought for physician negligence. 4 In interpr eting Rule

15.03,5

the court s tated: Ru le 15.03 has never been c onstrued by our cou rts; howev er, it s language is so clear

andunequivoca

l that it is virtually se lf-constr uing.

. . The gre at libera

lity of this Rule is convincingl y demonstra ted by the ensuing provisions pe

rmitting a new party, under

certain circumst ances, to be brought in not

withstandi ng the fact tha

t the statut

e has run a

t the time of the amendment. . . The Ne w Rules of Ci vil Pr ocedure are designed to insure that cases and controver sies bedetermin ed upon their merits an d not upon lega

l technica lities or pr

ocedural niceties. Id. at 777. In addition, they state d that “lea ve (to amend) shall be freely given when justice so requires,” again showing the liberality of the Rule. Id. (quoting Branch v. Warren , 527 S.W.2d 89 (Tenn. 1975)).
The original c omplaint co ntained al legations c oncerning t he agree ment between the partie s. Clea rly, the action on t he note ar ose out of th e same co nduct, transact ion or occ urrenc e set forth or attempted to be set forth in the original complaint. Both the or

iginal and secon d amended c omplaints r evolved ar

ound the same real estate transaction which spread over an extendedperiod of t ime. It is the opinion of this court that Plaintiff’s claim was not barred by the statute of limi tations because he

r second a

mended com

plaint rel ated back

to the initi al compla

int.
Therefore, it

follows th at the judgement of the chancer y court is a

ffirmed and the case is remanded to the ch ancery c ourt for a ny further

necessar y proceedi ngs. Costs on appeal are taxed to defendant/appellee, Steven D. Graham.

___________________________________ SAMUEL L. LEWIS, JUDGE CONCUR:

___________________________________ BEN H. CANTRELL, JUDGE

___________________________________ WILLIAM C. KOCH, JR., JUDGE