# F I LED
Ma rch 16, 2000 C e c i lCr o w s o n , Jr. Appell ate Cour

t Cl er k A HMA D BEN N A M A a n d ) K A HLED A BED, ) ) Plaintif fs/A ppellees, ) ) A ppeal N

o. v . ) M 1999-00171-C O A -R 3-C V ) AYMAN AYO U B , d / b / a ) N o. 94-3189-I LIMI TED A UTO SA LES, ) D av idson C hancery ) D efendant/A ppellant. )

COU RT OF A P P

E A LS OF TEN NESSEE A P P E A L FROMTHE CHA N C ERY COU RT FOR DA V I DSON C OUN T Y

A T NA SHV I L L E , TENN ESSEE THE HONORA BLE IRVIN H. K I L C REA SE, JR. , CHA N C ELL O R

IR W INJ . K U H N E isenstein, M

oses & M ossman S uite 500, O

ne C hurch Street N ashv ille, Tennessee 37201 A TTORNEY FOR PLA I NTIFFS/ A P P ELL EES JOHN C. HESS 105 B onnabr

ook D rive, S uite 105 H ermitage, Tennessee 37076 A TTORNEY FOR DEFENDA NT/ A P P ELL A N T

A FFI RMED A ND REMA NDED

W I LLI AM B. CAI N , J

UDGE1 T h e plaintiff N ama is

a f rie nd of A bed, who apparently bankrolled the purc hase at issue. Pursuant to an

indemnification ag

ree ment. M r. A bed carr

ied on the suit below

on M r. N ama’ s behalf. T hus M r. N ama did not participate at trial. M r. A bed w as the only

party to testif

y in the plaintiff

s’ case in chief

. 2 A ccor ding to the recor d, M r. A bed testified to a third car w hich allegedly ser v e d as partial consider

ation for the C hev

rolet and the Ford. The rec or d pre sents contr adicting testi mony

as to the actual model and make of the car. S ince the chancellor’s or

der does not addr ess this discr

epancy, and no resol

ution is necessar y to our disposition in this cas

e, r eference is made for t

he pur pose of clar ify ing the chaotic natur

e of the business tr

ansactions alleged. 2 

## O P I N I O N T his is an appeal from the cha ncellor ’s denial of

D efendant’s

motion to alter or amend f indings of

fact. The question to be answ ere d is w hethe r the “new l y disc ov ere d ev idence r ule” w ould allow

the pr esentation post-tr

ial of ev idence w hich the pr

oponent concedes he could hav e pr oduced at tr

ial. The defendant contends that ev idence which tends to show misrepr esentation on the part of a nonmov ant

should be allow

ed under a motion pursua

nt to T enn. R. C iv

. P . 52, 59 and 60 r

egardles s of w hether it w as discov era ble at tr ial. U nder the circumstances of the case at bar, w e cannot agree. I . FA CTS PRESENTED A T TRI A L T h e chancellor

below w as pr e sented w ith tw o str ongly conflicting v ers ions of the same core

trans act ion. T he par ties in this dispute were thr ee of the four primar

y characte rs inv olv ed in that transaction. T

he defendant, A y

man A y oub , o per ates a used car

dealer ship. The plaintiff

s, A hmad B en Nama and K haled A bed ar

e similarly engag ed. 1 T

he tr ansactions

center ar ound one 1995 C rown V ictoria, and one 1994 C hev rolet Caprice. 2 A . THE PLA I NTIFFS’ V ERSI O N A ccor ding to the plaintiffs M ohamad F ay ssal A l S akati (

A l S akati) arr anged a meeting betw

een them and M

r. A y oub at A y oub’s place

of business, L imited A uto S ales. A

t this meeting M r. A y

oub agreed to sell and deliv er good title to the aforementioned v

ehicles to the plaintiffs. They

allege that M

r. A y oub failed to deliv er good title to the C h

ev r olet C apr ice and failed to physically deliv er the F ord.3 It should be noted that both the

checks and the facsimile title w ere enter ed into ev idence without

contemporane

ous objection

by defendant. D efendant later attempted to object to the admission of the checks, howev er

that objection w

as ov err uled as untimely

. 3 A ccor ding to the plaintiffs, the consider ation for the sale

o riginally took the form of

a personal chec

k in the amount of $21,000 made out to A y man A y oub. T he plaintiffs all ege d that dur ing the bargaining process but after the dra w ing of the check, the defendant, A y oub, offered to buy a 1986 Br o ugham f r o m the plaintiff

s. The sales w

ere consolidated and the o ri ginal check w

as replaced w ith a cashier

’s check in

the amount

of $19,000 payable to M r. A y oub. A ccor ding to the plaintiff

s, since the Broug

ham w as v alued by the parties at $2,800, M

r. A y oub pr omised to make up the $800 diff ere nce some time in th

e future. In

suppor t of their version of the

facts and in addition to the testimony of M r. A bed, the

plaintiffs produced copies of the per sonal check in the a

mount of $21,000 and cashier

’s check in

the amount of

$19,000 as

w ell as a facsimile of the title to the al

leged undeliv

ere d 1995 F ord

Cr o w n V ictoria. 3

T his facsim

ile, bear ing a legend date of S eptember 15, 1998, was sent fr o m S afew ay Industries to M r. A bed’s place of business, U nited A uto S ales. This copy show ed the last endor sement to be in blank

by A y oub’s business, L imited A uto S ales. Plaintiffs off ered this exhibit specifically for the pur

pose of show

ing t hat M r. A y oub shipped the Ford in question to K uw ait r ather than deliv

eri ng it to M r. A bed. B . DEFENDA NT’S V ERSI O N M r . A y oub, for his

par t, denied t

hat any of

the tr ansac tions inv olv ed him. In spite of the checks bear ing his sig

natur e and name as payee, and in spite of the existence of the endor se ment on the fax

copy of the title, M

r. A y oub continued to a sse rt at t rial t hat M r. A lS akati bar

gained w ith the plaintiffs

on his ow n. M r. A y oub testified at t

ria l that t he so meo ne mus t h ave for ged h is na me on the checks. In a

ddition , he asser ted that the title copy

could hav

e been incomplete, in that a title extension could hav

e been appended onto the original title. M r. A l S akati testified

appar ent ly in suppor

t of M r. A y

oub’s v ers

ion, how ev er that testimony

seemed to ra

ise as many

questions as it

ans w ered. Mr .4

A lS akati testified that

he repossessed the C

hev y C aprice f or non payme nt. M r. A youb ’s theory at tri al w as that the checks

presented by the plaintif

fs concerned an agreement betw

een the plaintiffs and M r. A l S akati. M r. A l S akati then gav e M r . A y oub the $21,000 check to deposit. Thus M r. A l S akati’s testim ony posed at least as many questions as it answ ere d. I I . THE FA CTU A L FI NDI N G S T his case w as tried to the cour

t w ithout a jury. T

he chance

llor, after exercising

his oppor

tunity to examine the credibility of the of the w itnesses, entered the findin

gs of fact. T

hese findings, w

hich come to us w

ith a pre sumption of corr ectness on appeal absent a showing that they are against the w eight of the ev idence, e ndorse d the plaintiffs’ v

ers ion o f the f act s recounted abov e. A fter entr

y of the cour

t’ s judgm ent, M r. A y oub mov ed the court under Tennessee

R ules of C iv

il Procedur

e 52, 59 and

60.02 to amend the factual finding s, to enter additional findings, or

in the alter

nativ e for a new trial. In this motion, D efendant

alleged that the per

sonal check in the a

mount to of

$21,000 admitted at tr ia l, as w ell as the facsimile copy

of the F ord C

rown V ictor

ia title w e r e forged, and that the pla

intiff s ther eby w ere attempting to def

rau d the cour t. T h e total pr oof presented with the motion c on tained only

v arious additional documents

( w ith aff idav it s fro m their custodians) w

hich appear to contr

adict ev idence w hich w as pre sente d at tr ial. There were no allegations at tr ial or on appeal that Plaintif

fs prev ented D efendant f

rom discov

er in g these docum

ents, nor d oes he asser

t that this evidence could not be obtained at tr ial. T he relief sought by

motions such as the one

at issue is extraordinar

y for the v ery re ason that a tr

ial has alr eady been conducted. T

he oppor tunity to pre sent proof has passed. A

judgm ent has been

render ed and may

indeed be final but for the consideration of the motion. R ule 60.02 has bee n described as an “escape v alv e” used by an unsuccessful party in an ef fort to avoid the f

inality of an incorr

ect or “ unfair” jud

g me nt w hic h sh oul d not ea

sil y be o pen ed. See Toney v. M uelle r C o., 810 S .W

.2d 145, 146 (

Tenn. 1991) ( quoting Thompson v. F iremen's F und Ins. C o., 798 S .W .2d 2 35, 2 38 (T

enn.199 0))
.5 T h e burden upon a par

ty seeking relief is clear. A s this C ourt has clear ly stated: Tenn.R .C iv .P

. 60.02 itself str

ikes a balance be

tw een the competing

desir es for finality

and f or correct nes s. J erki

ns v. M cK inney , 533 S .W .2d 275, 280 (

Tenn.1976) ; C. Wr

i g h t & A . M ill er, F ederal P

racti ce an d P rocedu

re S ec. 285 7 ( 1973)
. Tenn.R .C iv .P

. 60.02( 2) specifically

provides that other

w ise final judgm

ents tainted by

fraud, misrepr

esentation, or

other misconduct

may be set aside within one

y ear after their

entr y . Judg es need not balance f

inality and corr

ectness when a timely Tenn.R.C iv

.P. 60.0 2( 2) motion is

filed. If the

motion is substantiated, they should unhesitatingly set the tainted judgm ent aside. T h e par ty seeking r elief u nder Tenn.R .C iv.P. 60.02(2) has the burden of proof
. Trice v. M

oyers, 561 S .W

.2d 153, 156 ( Tenn.1978) ; H

olt v. H ol t, 751 S .W

.2d 426, 428

( Tenn. C t. A p p.1988)
. In or

der to succeed, the mov

ing party mus t descr ibe the basis for r

e lie f w ith spe cif ici ty , H opki ns v. H op kins, 572 S .W

.2d 639, 640 (

Tenn.1978) , and must show by clear and conv

incing ev idence that post-judgm ent relief is w arrante d. * * * A ccor dingly , post-judgment

relief is w

arr anted w hen the mov ing party prov

es w ith clear and convincing

ev idence the existence of conduct amounting to an intentional c

ontrivance by

a party to keep complainant

and the C ourt in ignorance of th e real fact s touching the matters in litigation, whereby a w rong conclusion was reached, and po s itiv e w rong don e to the com pla ina nt's rig hts
. Leeson v. C herna u, 734 S .W .2d 634, 638 (Tenn .C t.A pp.1987)
. B oth w ithholding evidence and the know ing use of perjur ed testimony

can pr ov ide grounds for granting post-judgment relief purs uant to Tenn.R .C iv .P

. 60.0 2(2)
. D unca n v. D uncan, 789 S .W

.2d 557, 563 (

Tenn. C t. A pp. 1990) ( footnot

e an d some citations omitted)
. D efendant

pr es en te d n o e v id en ce in th e r ec or d t ha t A be d a nd N ama prev ented h

im f rom disc ov ering

the “real f act s” a t is sue .6

III. CONCLUSI O N

S ince this case was tried by

the c ourt sitting w

ithout a jur y , w e review the case de novo

upon the

re cor d w ith a pre sumption of corr ectness of the finding

s of f act by the trial cour t. U nless the ev

idence prep

on der ates against the finding s, w e must aff irm absent er

ror of law . T.R .A .P. 13(

d)
. T h e chancellor

wa s faced w ith conflicting testimony

from Tay lor on the one hand and K ov sky on the other . A s the trier of fact, the chancellor had the oppor tunity to observe t

h e manner and demeanor of the w

itnesses as they

testified. T

he w eight, faith, and cr

edit to be giv en to a witness’ s testimony lies in the first instance w

ith the chancellor as

the t rie r of fact, and the credibility accorded w ill be giv en

great w eight by the appellate

cou rt. M ays v. B righto n B ank

, 832 S.W .2d 347, 352 ( Tenn.A pp.1992) ; S i s k

v. Valley F orge Ins. Co. , 640 S .W .2d 844, 849 (

Tenn.A pp.1982)
. Taylor v. Trans Aero C orp ., 924 S .W

.2d 109, 112 (

Tenn. C t. A pp. 1995)
. T h e ev idence in this case

does not pr

eponder ate against the finding

s of fact of the chancellor

. W hat is off ered in this case as “new

ly discov ered ev idence” does not meet the cr iter ia for granting a new

tri al on this groun

ds. It is c

onceded by appellant that the documentation

off ered in the motion for a new trial could hav e been discov ered before trial by the ex ercise of r easonable diligence. T

he action of the chancellor

in ov err uling the motion to alter or amend finding

s of f act and the motion for a new trial is affirmed. S ea y v . C ity o f K noxv ill e , 654 S.W .2d 397, 399 (Tenn. C

t. A pp. 1983) ; M

onday v. M

illsap s , 264 S.W

.2d 6 ( Tenn. A pp. 1954) ; T ipton v. S mith

, 593 S.W

.2d 298 ( Tenn. C t. A pp. 1979)
. T h e judgm ent of the chancellor is in all r espects aff

irmed and the case is remanded to the C hancery C ourt of D av idso n C ounty for such further proc eedings as m ay be n ecessa ry . C o s ts of the appeal ar

e taxed against D ef endant , A y

ma n A y oub
.

__________________________________ ___ W I LLI AM B. CAI N , J

UDGE7

CONCUR:

__________________________________ ___ BEN H. CA NTREL L , P. J . , M. S .

__________________________________ ___ W I LLI AM C. KOCH, J

R . , J UDGE