# FILED February

21, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk FRANK COLL

IER AUCTI ON & ) REALTY COMPANY, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9608-CH-00384 v. ) ) Davidson Chancery JOE M. RICE and ) No. 91-3839-I WAYNE B. GLASGOW, JR., ) ) Defend ants, ) ) v. ) ) JOE E. HOL

LAND d/b/a ) HOLL AND LAND SURVEYI

NG, )

) Defend ants/Appe

llants. )

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

AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

JOHN L. WHITF

IEL D, JR. Cavalier Building 95 White Bridge Road, Suite 509 Nashville, Tennessee 37205 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE

PHIL LI PS M. SMALLI

NG P. O. Box 340 Byrdstown, Te

nnessee 38549 ATTORNEY FOR DEFENDANT/APPEL LANT

AFFIRMED AND

REMANDED

SAMUEL L. LEWIS, JUDGE1 Court of Appeals Rule 10(b): The Co urt, with the c onc urren ce of a ll judges part icipat ing i n the ca se, may affirm , revers e or m odify the action s of the trial c ourt b y mem oran dum opin ion wh en a fo rmal o pinio n woul d have no precedenti al value. When a case is deci ded by memorandum opinion, it shall be desi gnated "MEMORANDUM OPINIO N," shallnot be publi shed, an d shallnot be ci ted or rel ied on for an y reaso n in a sub sequ ent unre lated c ase. - 2

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# MEMORANDUM OPINION 1
This is an appea

l by def endant/app ellant, J oe M. Ric e, from the decisi on of the trial court aw arding Ric e $5,600. 00 tendere d by inte rpleader and dism issing his cla ims against pla

intiff/ap pellee, Frank Col lier Auc tion & Rea lty Com pan y ("Collier"), and defendant, Wayne B . Glasgow. The facts out of which this m atter arose ar e as follow s.
On 12 October 1991, Collier offered land located on the Cumberland River for sale at a n auction. The owne

r of the la

nd was W ayne

B. Gla sg ow. Collier provided prospective buyers with a survey plat, an appraisal, a newspaper a d regardin g the view of the river fr om the property , and

a letter dated 1 Oc tober 1991 from Brenda Apple, an employ ee of the State Division of superfund, reg arding the environmental clean-up of the land and liability for the clean-up. Joe M. Rice w as the high estbidder at t

he auction. At the cl ose of the a uction, R ice, Glasgow, and Collierexecuted a contrac t for the s ale of the pro per ty. The contract provided as follows: Miscella

neous condition buyer

is aware of E.P.A. clean up ta king place on propert

y beingso ld and has bee n given the l etter fr om Brenda A pple dated 10-1-91 per

taining to suc h.

. . . . Title: Seller a

grees to f urnishBuyer a

title insurance polic y as of the date of

closing. The policy is to be in the usual form, subject only to the usual

printed ex c epti ons and those agreed in

this contract .

. . . . Disclaimer: Seller a

nd Purchas er acknow ledge that they ha ve not relied upon the advi ce or re presenta tions, if an y . . . rel ative to the l egal and tax consequences of this contract in the sale of th e prem ises, the purcha se and

ownership of the premises, . . . zoning ordinances o r the investm ent or re sale value

of the premises
. Seller and Purch aser both

ac knowledging that if such matters have been of co ncern to th em, they ha ve sought and obt ained independent

advice re lative the

reto. (underline d portion han d-written)- 3

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Three issues aro se before the propose d closing dat

e. The first invol ved the environmental clean-upand the inte rpretati on of the let

ter wri tten by

Brenda Apple. Rice contend ed tha t the lette r repre sented the State w ould have no i nterest in the property after si xty day s. The s econd issue involved the existence of a one-hundred feet wide railroadeasem

ent on the so uth side of t

he property that adjoined the river. In a letter dated 28 October 1991, Gla sgow state d that the e asem ent was "more than the 15 foot ri g ht-of-w ay ea seme nt repres ented to Mr . Rice. " Rice c laime d that the platdid not reveal the railro ad easemen t; howeve r, the tr ial court f ound that "[ t]he railroad is shown on t

he plat." The th ird issu e involv ed the tit le insuran ce policy. In an attem pt to com ply wi th the contract, Glasgow del ivered a p roposed insura nce pol icy, but the policy included an exception for the e asem ent. Rice contended that the policy did not com

ply wi th the contract

for sale . Despi te discussi ons between the parties, they di d not resolve the issues a

nd the closi ng never oc curred.
On 25 N ovembe

r 1991, Col lier file d an interp leader a ction nam ing Glasgo w and Rice as defendants. The complaint sought anadjudication of who was entitled to the $5,600. 00 in earnest mone y paid by Rice on the date of sale. Rice filed an answer, a co un ter -cl aim a gain st Collier , and a c ross-cla im aga inst Glasg ow. Th e coun te r and cross c laims alleged in tentional a

nd fraudulent misr

epresent ation and violations of the Tennessee Consumer Protection Act. The parties agreed that Rice was entitled to the ear

nest money, and the cou

rt enter ed an orde

r to that e ffect on 12 May 1993. On 2 1 May 1 993, Gla sgow file d at hird-part y complaint agains t Joe E. Holland d/b

/a Hollan d Land Sur

veying("Holla

nd"). Glasgow al leged that Holland was liablefor any

damages assesse d against Glasgow because o f inaccuracies in th e survey plat. T

he recor d do es not reflect any further action on this claim or that Glasgow ever eff

ected ser vice of pr ocess.
The matt ers rais ed in Rice 's claim s were t ried befo re thecourt wit

hout a jury on 8 Decem

ber 1994. The cour

t entered a default judgm ent against

Glasgow , but reserve d ruling on da

mage s. In a m

emor andum opinion, the

court held

as follow s: Rice ag reed in

the Contract

for the S ale of

Real Es tate , that he read and signed, that the c ontract c ontained the entire agreem

ent betwe en the parties and that there were no oral or collateral- 4

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conditions, agreem

ents or re

presenta tions involve d in the transact ion. Whatever representations that may have been made to Rice by French and/or Gl ascow [s ic] we re no t relied on by Rice. Rice made an independ ent investi gationof his conc erns about the state of the proper

ty and based on the inves tigation dec ided to ref use to close the transa

ction, an d he was ref

unded his dow n paym

ent. Specifica lly, Ri ce obje cted to the railroad easem

ent being m

ade aprinted ex ception i n the title policy even though " easem

ents" were pri nte d ex cep tio ns i n th e ti tle pol icy. Further, Rice's c ontention tha t fraudulent misr

epresent a tio ns were m ade to him

with res pect to the

Superfun d clean-u

p lien is without merit, in viewof the prov isions in the contract concerni ng this matt er and the information furnished to him at thebid calling
.

. . . . Fin all y, the Court f

inds that [Ri ce] failed to carry his burden of proof on the

issue of f raudulent m

isrepres entation w ith respect to t he s tat e of t he p rop erty.

. . . . Likewise, the Court

further finds that Rice failed to carry his claim that Gla scow [sic ] violat ed the Consum

er Prote ction Act , Tenn. C ode Ann. § 47-18-104. The co urt enter

ed an orde

r on 25 Apr

il 1995 incor

porating it s holdings in th e mem orandum opinion. Rice filed a ti mely "moti on for new

trial or a lteration and amen dment

of judgm ent." T he court denied the m

otion on 1 Apr

il 1996. Thereafter, Rice filed a notice of appeal. It is Rice's contention that the trial courtmade the following three errors: 1) it failed to find that Glasgow f a iled t o deliveran appropr

iate title insurance

policy and that Ri ce was enti tled to compensatory

damages; 2) it f

ound that Rice failedto satisfy his burden of proof as to the frau dulent m

isrepres entation

claim ; and 3) it

found that Rice failed to satisfy hi s b urd en o f pr oo f as to th e Co ns umer Pro tec ti on Act cla im.
Rice's first issu e is: “Whethe r the tria l court er red in not f

inding that Jo e Rice as Counter-Plaintiff and Cross-Pl ainti ff was entitled to recover compensatory damages for the f

ailu re of W ayne B. Glasgow to deliver a title insurance policy without a title ex ception def

ect.” In his brief

and motion for a new trial, Rice argued thatthe basis for his claim was that Glasgow brea ched the contractwhen he faile d to provide an a

ppropriate

title insurance polic y. R ice argue d: Thus, the seller

Way ne Glasgow

bre ached his ob ligation to deliver c lear titl e. Joe R

ice was entitled tohis earnest money as- 5

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well as com

pensatory damages. Gl asgow wa s on no tice of his liability . The c ontract a

lso stated: Breach of contrac t by se lle r: . . . In the event of seller default the deposit

ed mon ey her

ewith dep o si ted by t

he buyer shall be returned to the buyer by agent. The buyer may sue for specificperform

ance of this agreem

ent or for damages, or both
. . . . Joe Rice exe

rcised his right to seek dam ages. H e testifi ed that the property was worth ONE HUNDRED THOUSAN D ($100,000. 00) DOLLARS if as represented on the day of sa le. .

. . Joe Ric e is entitl e d to the benefit of his bargain and the trial courterred in

not awar ding him ajudgmen t for S EVENTY TWO THOUSAND ($72,000.0 0) DOLLARS . . . . The probl em w ith this argum ent is that Rice's amended com plaint did not include a breach of contra

ct action a

nd the ad da

mnum clause did

not include a request

for $72,000.00

in compensatory dam

ages. A court

does not have to create aclaim where none exists. Rampy v. ICI Acrylics, Inc. , 898 S.W.2d 196, 198 (Tenn. A pp. 1994); Brown v. City of Ma nchester , 722 S.W .2d 394, 39 7 (Tenn. App. 1986) . The allegatio ns of

the com plaint m ust provide t

he advers e party

withsufficie nt notice of the allegatio ns he or she is called upo n to answer. Jasper Engine & Transmission Exch. v. Mills , 911 S.W.2d 719, 720 (Tenn. A pp. 1995). I t is the opini on of this courtthat the amended com plaint failed to provide R

ice and Glasgow w ith sufficie nt notice of a breach of contract claim. Rice can not recover for breach of contract when he did not alle ge such in hi s ame nded com plaint. T hus, the tr ial court d

id not err in failing to a

ward Ric e $72,000. 00 in com pensatory damages.
As to the rem

aining issue s, this cou

rt is of the

opinion t hat the e vidence preponderates in favor of the trial court's f indings. T

his recor d fully su p ports the findings of

the trial court that there was no evidence of any misr epresent ation or of any vio lations of t

he Consum

er Prote ction Act
. Therefore, pursuant to Rule 10 of t he Rules o f the Court of Appeals, we affirm the judgment of the trial court in all respects. Costs on appeal are asses se d against defendant

/appellant , Joe M. Rice, a nd the cause is r

eman ded to the

trial court for any further necessar

y proc eedings.

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______ _______ _ SAMUEL L . LEWIS, JUDGE- 6

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CONCUR:

_________________________________ HENRY F. TODD, P.J., M.S.

_________________________________ WI LL IA M C. K OCH , JR. , J.