F ILED

Ma rch 16, 2000

C ec il Crow s on, Jr.

Appellate Court Clerk

A HMA D BEN N A M A and )

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

LIMITED A UTO SA LES, ) D av idson C hancery

)

D efendant/A ppellant. )

COU RT OF A P PE A LS OF TEN NESSEE

A P PE A L FROM THE CHA N C ERY COU RT FOR DA V IDSON C OUN T Y

A T NA SHV IL L E , TENN ESSEE

THE HONORA BLE IRVIN H. K IL C REA SE, JR., CHA N C ELL O R

IR W IN J. K U H N

E isenstein, M oses & M ossman

S uite 500, One C hurch Street

N ashville, Tennessee 37201 

A TTORNEY FOR PLA INTIFFS/A P PELL EES

JOHN C. HESS

105 B onnabrook D rive, S uite 105

H ermitage, Tennessee 37076

A TTORNEY FOR DEFENDA NT/A P PELL A N T

A FFIRMED A ND REM A NDED

W ILLIAM B. CAIN , JUDGE
1

T he plaintiff N ama is a friend of A bed, who apparently bankrolled the

purchase at issue. Pursuant to an indemnification agreement. M r. A bed carried

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 testify in the plaintiff s’ case in chief .

2

A ccording to the record, M r. A bed testified to a third car w hich allegedly

serv ed as partial consideration for the C hev rolet and the Ford. The record

presents contradicting testimony as to the actual model and make of the car.

Since the chancellor’s order does not address this discrepancy, and no resolution

is necessary to our disposition in this case, reference is made for the purpose of

clarify ing the chaotic nature of the business transactions alleged.

2

O P I N I O N

T his is an appeal from the chancellor’s denial of D efendant’s motion

to alter or amend f indings of fact. T he question to be answ ered is w hether the

“new ly discovered evidence rule” w ould allow the presentation post-trial of

ev idence w hich the proponent concedes he could have produced at trial. The

defendant contends that evidence which tends to show misrepresentation on the

part of a nonmov ant should be allow ed under a motion pursuant to T enn. R. C iv .

P . 52, 59 and 60 regardless of w hether it w as discoverable at trial. U nder the

circumstances of the case at bar, w e cannot agree.

I. FA CTS PRESENTED A T TRIA L

T he chancellor below w as presented w ith tw o strongly conflicting

versions of the same core transact ion . T he parties in this dispute were three of

the four primary characters inv olved in that transaction. T he defendant, A yman

A y oub, operates a used car dealership. The plaintiff s, A hmad B en N ama and

K haled A bed are similarly engaged.1 T he transactions center around one 1995

C rown V ictoria, and one 1994 C hev rolet C aprice.2

A . THE PLA INTIFFS’ V ERSIO N

A ccording to the plaintiffs M ohamad Fayssal A l Sakati (A l Sakati)

arranged a meeting betw een them and M r. A y oub at A y oub’s place of business,

L imited A uto Sales. A t this meeting M r. A y oub agreed to sell and deliver good

title to the aforementioned vehicles to the plaintiffs. T hey allege that M r. A y oub

failed to deliver good title to the C hev rolet C aprice and failed to physically

deliver the F ord.
3

It should be noted that both the checks and the facsimile title w ere entered

into evidence without contemporaneous objection by defendant. D efendant later

attempted to object to the admission of the checks, howev er that objection w as

overruled as untimely.

3

A ccording to the plaintiffs, the consideration for the sale originally

took the form of a personal check in the amount of $21,000 made out to A yman

A y oub. T he plaintiffs allege d that during the bargaining process but after the

draw ing of the check, the defendant, A y oub, offered to buy a 1986 Brougham

f ro m the plaintiff s. The sales w ere consolidated and the original check w as

replaced w ith a cashier’s check in the amount of $19,000 payable to M r. A y oub.

A ccording to the plaintiff s, since the Broug ham w as valued by the parties at

$2,800, M r. A y oub promised to make up the $800 difference some time in the

future.

In support of their version of the facts and in addition to the testimony

of M r. A bed, the plaintiffs produced copies of the personal check in the amount

of $21,000 and cashier’s check in the amount of $19,000 as w ell as a facsimile

of the title to the alleged undelivered 1995 F ord Crow n V ictoria.3

 T his facsimile,

bearing a legend date of S eptember 15, 1998, was sent fro m Safew ay Industries

to M r. A bed’s place of business, U nited A uto Sales. This copy show ed the last

endorsement to be in blank by A y oub’s business, Limited A uto Sales. Plaintiffs

offered this exhibit specifically for the purpose of show ing that M r. A y oub

shipped the Ford in question to K uw ait rather than delivering it to M r. A bed.

B . DEFENDA NT’S V ERSIO N

M r. A y oub, for his part, denied that any of the transactions inv olved

him. In spite of the checks bearing his sig nature and name as payee, and in spite

of the existence of the endorsement on the fax copy of the title, M r. A y oub

continued to assert at trial t hat M r. A l Sakati bargained w ith the plaintiffs on his

ow n. M r. A y oub testified at trial that the someone must have forged his name

on the checks. In addition, he asserted that the title copy could have been

incomplete, in that a title extension could have been appended onto the original

title. M r. A l Sakati testified apparently in support of M r. A y oub’s v ersion,

how ever that testimony seemed to raise as many questions as it answ ered. Mr.
4

A l Sakati testified that he repossessed the C hev y C aprice for non pay me nt. M r.

A youb’s theory at trial w as that the checks presented by the plaintif fs concerned

an agreement between the plaintiffs and M r. A l Sakati. M r. A l Sakati then gav e

M r. A y oub the $21,000 check to deposit. Thus M r. A l Sakati’s testimony posed

at least as many questions as it answ ered.

II. THE FA CTU A L FINDIN G S 

T his case w as tried to the court w ithout a jury. T he chancellor, after

exercising his opportunity to examine the credibility of the of the w itnesses,

entered the findings of fact. T hese findings, w hich come to us w ith a

presumption of correctness on appeal absent a showing that they are against the

w eight of the ev idence, endorsed the plaintiffs’ version of the facts recounted

above. A fter entry of the court’s judgment, M r. A y oub mov ed the court under

T ennessee R ules of C iv il Procedure 52, 59 and 60.02 to amend the factual

findings, to enter additional findings, or in the alternative for a new trial. In this

motion, D efendant alleged that the personal check in the amount to of $21,000

admitted at trial, as w ell as the facsimile copy of the F ord C rown V ictoria title

w ere forged, and that the plaintiffs thereby w ere attempting to defraud the court.

T he total proof presented with the motion contained only various additional

documents (w ith aff idavits from their custodians) w hich appear to contradict

ev idence w hich w as presented at trial. There were no allegations at trial or on

appeal that Plaintif fs prevented D efendant from discovering these documents,

nor does he assert that this evidence could not be obtained at trial.

T he relief sought by motions such as the one at issue is extraordinary

for the very reason that a trial has already been conducted. T he opportunity to

present proof has passed. A judgment has been rendered and may indeed be final

but for the consideration of the motion. R ule 60.02 has been described as an

“escape valve” used by an unsuccessful party in an ef fort to avoid the f inality

of an incorrect or “unfair” judgme nt w hic h sh oul d no t easily be o pen ed. See

Toney v. M ueller C o., 810 S.W .2d 145, 146 (T enn. 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 he burden upon a party seeking relief is clear. A s this C ourt has

clearly stated:

T enn .R .C iv .P . 60.02 itself strikes a balance betw een the

competing desires for finality and for correct ness. J erkins v.

M cK inney, 533 S.W .2d 275, 280 (T enn.1976); C. Wrig ht &

A . M iller, F ederal P ractice and P rocedure Sec. 2857 (1973).

T enn .R .C iv .P. 60.02(2) specifically provides that otherw ise

final judgments tainted by fraud, misrepresentation, or other

misconduct may be set aside within one year after their entry.

Judges need not balance f inality and correctness when a

timely T enn.R.C iv .P. 60.02(2) motion is filed. If the motion

is substantiated, they shou ld unhesitatingly set the tainted

judgment aside.

T he party seeking relief under Tenn.R .C iv .P. 60.02(2) has

the burden of proof . Trice v. M oyers, 561 S.W .2d 153, 156

(T enn.1978); H olt v. H olt, 751 S.W .2d 426, 428 (T enn. C t.

A pp.1988). In order to succeed, the mov ing party must

describe the basis for relief w ith specif ici ty , H opkins v.

H op kins, 572 S.W .2d 639, 640 (T enn.1978), and must show

by clear and conv incing ev idence that post-judgment relief

is w arrante d. 

* * *

A ccordingly , post-judgment relief is w arranted w hen the

mov ing party proves w ith clear and convincing ev idence the

existence of conduct amounting to 

an intentional contrivance by a party to keep

complainant and the C ourt in ignorance of the real

facts touching the matters in litigation, whereby a

w rong conclusion was reached, and positive w rong

don e to the complaina nt's rig hts. 

Leeson v. C hernau, 734 S.W .2d 634, 638

(T enn .C t.A pp.1987). B oth w ithholding ev idence and the

know ing use of perjured testimony can prov ide grounds for

granting post-judgment relief pursuant to T enn .R .C iv .P.

60.0 2(2). 

D uncan v. D uncan, 789 S.W .2d 557, 563 (T enn. C t. A pp. 1990) (footnote and

some citations omitted).

D efendant presented no ev idence in the record that A bed and N ama

prev ented h im from d isc ov ering the “real facts” at issue. 
6

III. CONCLUSIO N

Since this case was tried by the court sitting w ithout a

jury, w e review the case de novo upon the record w ith a

presumption of correctness of the findings of fact by the trial

court. U nless the ev idence preponderates against the

findings, w e must aff irm absent error of law . T.R .A .P. 13(d).

T he chancellor was faced w ith conflicting testimony from

T aylor on the one hand and K ov sky on the other. A s the trier

of fact, the chancellor had the opportunity to observe t he

manner and demeanor of the w itnesses as they testified. T he

w eight, faith, and credit to be giv en to a witness’s testimony

lies in the first instance w ith the chancellor as the trier of

fact, and the credibility accorded will be giv en great w eight

by the appellate cou rt. M ays v. B rig hton Bank, 832 S.W .2d

347, 352 (T enn.A pp.1992); S is k v. Valley F orge Ins. Co., 640

S.W .2d 844, 849 (T enn.A pp.1982).

Taylor v. Trans Aero C orp., 924 S.W .2d 109, 112 (T enn. C t. A pp. 1995).

T he evidence in this case does not preponderate against the findings of

fact of the chancellor.

W hat is offered in this case as “newly discovered evidence” does not

meet the criteria for granting a new trial on this grounds. It is conceded by

appellant that the documentation offered in the motion for a new trial could have

been discovered before trial by the exercise of reasonable diligence. T he action

of the chancellor in overruling the motion to alter or amend findings of fact and

the motion for a new trial is affirmed. Sea y v. C ity of K noxville, 654 S.W .2d 397,

399 (T enn. C t. A pp. 1983); M onday v. M illsaps, 264 S.W .2d 6 (T enn. A pp.

1954); T ipton v. S mith, 593 S.W .2d 298 (T enn. C t. A pp. 1979).

T he judgment of the chancellor is in all respects aff irmed and the case

is remanded to the C hancery C ourt of D av idson C ounty for such further

proceedings as may be n ecessary. C osts of the appeal are taxed against

D efend ant , A yma n A y oub . 

_____________________________________

W ILLIAM B. CAIN , JUDGE
7

CONCUR:

_____________________________________

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

_____________________________________

W ILLIAM C. KOCH, JR ., JUDGE