FILED

February 21, 1997

Cecil W. Crowson

Appellate Court Clerk

FRANK COLLIER AUCTION & )

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., )

)

Defendants, )

)

v. )

)

JOE E. HOLLAND d/b/a )

HOLLAND LAND SURVEYING, )

)

Defendants/Appellants. )

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. WHITFIELD, JR.

Cavalier Building

95 White Bridge Road, Suite 509

Nashville, Tennessee 37205

ATTORNEY FOR PLAINTIFF/APPELLEE

PHILLIPS M. SMALLING

P. O. Box 340

Byrdstown, Tennessee 38549

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

Court of Appeals Rule 10(b):

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify

the actions of the trial court by memorandum opinion when a formal opinion would have no

precedential value. When a case is decided by memorandum opinion, it shall be designated

"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any

reason in a subsequent unrelated case. 

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MEMORANDUM OPINION1

This is an appeal by defendant/appellant, Joe M. Rice, from the decision of

the trial court awarding Rice $5,600.00 tendered by interpleader and dismissing his

claims against plaintiff/appellee, Frank Collier Auction & Realty Company

("Collier"), and defendant, Wayne B. Glasgow. The facts out of which this matter

arose are as follows.

On 12 October 1991, Collier offered land located on the Cumberland River

for sale at an auction. The owner of the land was Wayne B. Glasgow. Collier

provided prospective buyers with a survey plat, an appraisal, a newspaper ad

regarding the view of the river from the property, and a letter dated 1 October 1991

from Brenda Apple, an employee of the State Division of superfund, regarding the

environmental clean-up of the land and liability for the clean-up. Joe M. Rice was

the highest bidder at the auction. At the close of the auction, Rice, Glasgow, and

Collier executed a contract for the sale of the property. The contract provided as

follows:

Miscellaneous condition buyer is aware of E.P.A. clean up taking

place on property being sold and has been given the letter from

Brenda Apple dated 10-1-91 pertaining to such.

. . . .

Title: Seller agrees to furnish Buyer a title insurance policy as of

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

only to the usual printed exceptions and those agreed in this

contract.

. . . .

Disclaimer: Seller and Purchaser acknowledge that they have not

relied upon the advice or representations, if any . . . relative to the

legal and tax consequences of this contract in the sale of the

premises, the purchase and ownership of the premises, . . . zoning

ordinances or the investment or resale value of the premises.

Seller and Purchaser both acknowledging that if such matters

have been of concern to them, they have sought and obtained

independent advice relative thereto.

(underlined portion hand-written)
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Three issues arose before the proposed closing date. The first involved the

environmental clean-up and the interpretation of the letter written by Brenda Apple.

Rice contended that the letter represented the State would have no interest in the

property after sixty days. The second issue involved the existence of a one-hundred

feet wide railroad easement on the south side of the property that adjoined the river.

In a letter dated 28 October 1991, Glasgow stated that the easement was "more than

the 15 foot right-of-way easement represented to Mr. Rice." Rice claimed that the

plat did not reveal the railroad easement; however, the trial court found that "[t]he

railroad is shown on the plat." The third issue involved the title insurance policy. In

an attempt to comply with the contract, Glasgow delivered a proposed insurance

policy, but the policy included an exception for the easement. Rice contended that

the policy did not comply with the contract for sale. Despite discussions between the

parties, they did not resolve the issues and the closing never occurred.

On 25November 1991, Collier filed an interpleader action naming Glasgow

and Rice as defendants. The complaint sought an adjudication of who was entitled

to the $5,600.00 in earnest money paid by Rice on the date of sale. Rice filed an

answer, a counter-claim against Collier, and a cross-claim against Glasgow. The

counter and cross claims alleged intentional and fraudulent misrepresentation and

violations of the Tennessee Consumer Protection Act. The parties agreed that Rice

was entitled to the earnest money, and the court entered an order to that effect on 12

May 1993. On 21 May 1993, Glasgow filed a third-party complaint against Joe E.

Holland d/b/a Holland Land Surveying ("Holland"). Glasgow alleged that Holland

was liable for any damages assessed against Glasgow because of inaccuracies in the

survey plat. The record does not reflect any further action on this claim or that

Glasgow ever effected service of process.

The matters raised in Rice's claims were tried before the court without a jury

on 8 December 1994. The court entered a default judgment against Glasgow, but

reserved ruling on damages. In a memorandum opinion, the court held as follows:

 Rice agreed in the Contract for the Sale of Real Estate, that he

read and signed, that the contract contained the entire agreement

between the parties and that there were no oral or collateral
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conditions, agreements or representations involved in the

transaction.

Whatever representations that may have been made to Rice by

French and/or Glascow [sic] were not relied on by Rice. Rice

made an independent investigation of his concerns about the state

of the property and based on the investigation decided to refuse

to close the transaction, and he was refunded his down payment.

Specifically, Rice objected to the railroad easement being made

a printed exception in the title policy even though "easements"

were printed exceptions in the title policy.

Further, Rice's contention that fraudulent misrepresentations

were made to him with respect to the Superfund clean-up lien is

without merit, in view of the provisions in the contract concerning

this matter and the information furnished to him at the bid calling.

. . . .

Finally, the Court finds that [Rice] failed to carry his burden

of proof on the issue of fraudulent misrepresentation with respect

to the state of the property.

. . . .

Likewise, the Court further finds that Rice failed to carry his

claim that Glascow [sic] violated the Consumer Protection Act,

Tenn. Code Ann. § 47-18-104.

The court entered an order on 25 April 1995 incorporating its holdings in the

memorandum opinion. Rice filed a timely "motion for new trial or alteration and

amendment of judgment." The court denied the motion on 1 April 1996.

Thereafter, Rice filed a notice of appeal. It is Rice's contention that the trial

court made the following three errors: 1) it failed to find that Glasgow failed to

deliver an appropriate title insurance policy and that Rice was entitled to

compensatory damages; 2) it found that Rice failed to satisfy his burden of proof as

to the fraudulent misrepresentation claim; and 3) it found that Rice failed to satisfy

his burden of proof as to the Consumer Protection Act claim.

Rice's first issue is: “Whether the trial court erred in not finding that Joe

Rice as Counter-Plaintiff and Cross-Plaintiff was entitled to recover compensatory

damages for the failure of Wayne B. Glasgow to deliver a title insurance policy

without a title exception defect.” In his brief and motion for a new trial, Rice argued

that the basis for his claim was that Glasgow breached the contract when he failed to

provide an appropriate title insurance policy. Rice argued:

Thus, the seller Wayne Glasgow breached his obligation to

deliver clear title. Joe Rice was entitled to his earnest money as
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well as compensatory damages. Glasgow was on notice of his

liability. The contract also stated:

Breach of contract by seller: . . . In the event of seller

default the deposited money herewith deposited by the

buyer shall be returned to the buyer by agent. The buyer

may sue for specific performance of this agreement or for

damages, or both . . . .

Joe Rice exercised his right to seek damages. He testified that the

property was worth ONE HUNDRED THOUSAND

($100,000.00) DOLLARS if as represented on the day of sale. .

. . Joe Rice is entitled to the benefit of his bargain and the trial

court erred in not awarding him a judgment for SEVENTY TWO

THOUSAND ($72,000.00) DOLLARS . . . .

The problem with this argument is that Rice's amended complaint did not include a

breach of contract action and the ad damnum clause did not include a request for

$72,000.00 in compensatory damages. A court does not have to create a claim where

none exists. Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. App. 1994);

Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. App. 1986). The

allegations of the complaint must provide the adverse party with sufficient notice of

the allegations he or she is called upon to answer. Jasper Engine & Transmission

Exch. v. Mills, 911 S.W.2d 719, 720 (Tenn. App. 1995). It is the opinion of this

court that the amended complaint failed to provide Rice and Glasgow with sufficient

notice of a breach of contract claim. Rice can not recover for breach of contract when

he did not allege such in his amended complaint. Thus, the trial court did not err in

failing to award Rice $72,000.00 in compensatory damages.

As to the remaining issues, this court is of the opinion that the evidence

preponderates in favor of the trial court's findings. This record fully supports the

findings of the trial court that there was no evidence of any misrepresentation or of

any violations of the Consumer Protection Act.

Therefore, pursuant to Rule 10 of the Rules of the Court of Appeals, we

affirm the judgment of the trial court in all respects. Costs on appeal are assessed

against defendant/appellant, Joe M. Rice, and the cause is remanded to the trial court

for any further necessary proceedings.

__________________________________

SAMUEL L. LEWIS, JUDGE
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CONCUR:

_________________________________

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

_________________________________

WILLIAM C. KOCH, JR., J.