BancorpSouth Bank v. 51 Concrete LLC ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 13, 2014 Session
BANCORPSOUTH BANK v. 51 CONCRETE LLC, ET AL.
Appeal from the Chancery Court for Shelby County
No. CH0910921 Walter L. Evans, Chancellor
No. W2013-01753-COA-R3-CV - Filed January 27, 2015
This is the second appeal of this conversion case. Appellant bank holds a perfected
security interest in three pieces of equipment used as collateral for a loan made to its
debtor, John Chorley. Appellees acquired this equipment from Mr. Chorley before he
defaulted on his loan with Appellant bank. Appellees did not perform a UCC check,
instead relying on Mr. Chorley’s representation that there were no liens on the
equipment. Appellees subsequently sold the equipment to parties not involved in this
case. After Mr. Chorley defaulted on his loan, Appellant bank sued Appellees for
conversion, seeking compensatory damages, attorney’s fees, and punitive damages. The
trial court awarded judgments against both Appellees, but denied attorney’s fees and
punitive damages. All parties assert error on appeal. We affirm in part, reverse in part,
and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial court is
Reversed in Part and Affirmed in Part
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Jeffrey D. Germany and Marshall Digmon, Memphis, Tennessee, for the appellant,
BancorpSouth Bank.
W. Clark Washington, Memphis, Tennessee, for the appellee, 51 Concrete, LLC.
Scott A. Frick, Memphis, Tennessee, for the appellee, Thompson Machinery Commerce
Corporation.
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MEMORANDUM OPINION1
I. Background
For purposes of consistency, we recite the factual background and procedural history
from our prior opinion in BancorpSouth Bank v. 51 Concrete, LLC, No. W2011-00505-
COA-R3CV, 2012 WL 1269180 (Tenn. Ct. App. Apr. 16, 2012) (“BancorpSouth I”):
In June 2006, John Chorley (“Chorley”) executed a promissory note
and security agreement in favor of […] BancorpSouth Bank
[(“BancorpSouth” or “Appellant”)] in exchange for a loan of $75,585.95.
The security agreement gave BancorpSouth a security interest in “all of the
Property described ... wherever the Property is or will be located, and all
proceeds and products of the Property.” The loan was secured by three
pieces of equipment: a bulldozer, an excavator, and a backhoe
[(collectively, “collateral”)]. The security agreement describes the property
generally as “all equipment,” and states that it “covers the above collateral,
whether now owned or hereinafter acquired, together with all supporting
obligations, proceeds, products.... The inclusion of proceeds does not
authorize debtor to sell or trade the above described property.” The next
day, BancorpSouth filed a UCC–1 financing statement on the secured
equipment with the Tennessee Secretary of State.
In August 2006, Chorley purchased a new bulldozer from […]
Thompson Machinery Commerce Corporation (“Thompson”). He traded
the secured bulldozer in exchange for an $18,000 cash discount on the new
bulldozer. Chorley affirmatively represented to Thompson that there were
no liens, debts, or encumbrances on the trade-in bulldozer, and that it was
his sole property. Shortly thereafter, Thompson sold the secured bulldozer
to a third party for $18,500.
In December 2006, Chorley purchased a new trackhoe from
Thompson. In doing so, Chorley traded in the secured excavator and
received a trade-in credit of $42,500 toward the purchase of the new
trackhoe. Chorley made similar misrepresentations to Thompson that the
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This 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 any
unrelated case.
2
trade-in excavator was not subject to any debts or encumbrances.
Thompson then sold the secured excavator to the same third party for the
amount of Chorley's trade in. Thompson did not perform a UCC records
check on either the bulldozer or the excavator traded in by Chorley.
In June 2007, Chorley gave […] 51 Concrete, [LLC] (“51
Concrete”) [(together with Thompson, “Appellees”)] possession of the
secured backhoe in exchange for a $23,000 credit against an existing debt
Chorley owed to 51 Concrete. This secured backhoe was subsequently sold
by 51 Concrete for $23,000, which was applied to Chorley's account at 51
Concrete. After the $23,000 credit was combined with a loan from another
bank, Chorley received a lien waiver in which 51 Concrete waived any
further claims it had against Chorley on his debt.
In May 2008, Chorley defaulted on his obligations to BancorpSouth
under the June 2006 security agreement. As a result, BancorpSouth filed a
lawsuit against Chorley. In July 2008, BancorpSouth received a default
judgment against Chorley in the amount of $55,703.37, with post-judgment
interest.
Id. at *1-2.
Shortly after BancorpSouth obtained its judgment against Chorley, it sent separate
demand letters to both Thompson and 51 Concrete demanding $55,703.37 from both
entities. Neither Thompson nor 51 Concrete immediately responded. In May 2009,
Chorley filed for Chapter 7 bankruptcy protection. Id. at 2.
[S]hortly after Chorley filed his bankruptcy petition, BancorpSouth filed
the instant lawsuit in the Shelby County Chancery Court (“trial court”)
against Thompson and 51 Concrete. The complaint sought money damages,
attorney fees, and punitive damages for conversion and for voiding
BancorpSouth's security interest in the secured equipment. After some
delay, both Thompson and 51 Concrete answered, denying BancorpSouth's
allegations. Discovery ensued.
Id. The trial court conducted a bench trial on September 15, 2010. Id. at *3. In an order
dated January 5, 2011, for reasons not germane to this appeal, the trial court determined it
did not have subject-matter jurisdiction over the case. Id. The trial court held in the
alternative that BancorpSouth was not entitled to attorney’s fees or punitive damages. Id.
The trial court dismissed BancorpSouth’s claims without prejudice. Id.
BancorpSouth appealed the trial court’s January 5, 2011 order. On appeal, this Court
determined that the trial court did have subject-matter jurisdiction. Additionally, we
reversed the trial court’s holding with respect to attorney’s fees, vacated the trial court’s
holding regarding punitive damages, and remanded for further proceedings on all issues.
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Id. at *7. A remand hearing was held on April 22, 2013. The trial court entered an
Amended Findings of Facts, Conclusions of Law and Order of Final Judgment on June
20, 2013. The order awarded BancorpSouth $78,347.86, which represented the original
amount of BancorpSouth’s judgment against Chorley plus post-judgment interest. The
trial court apportioned this award between the two Appellees according to the amount of
proceeds they each received from the sale of the collateral. The trial court again held that
Appellant had no contractual or statutory basis for attorney’s fees, and that punitive
damages were not warranted. BancorpSouth now appeals.
II. Issues
Appellant presents the following four issues for review:
1. Whether the trial court used the proper measure of damages.
2. Whether the trial court correctly determined the date that interest began to
accrue on the judgment.
3. Whether the trial court erred when it failed to award Appellant attorney’s
fees.
4. Whether the trial court erred when it denied Appellant’s claim for punitive
damages and refused to allow Appellant to present further proof on the issue of
punitive damages.
In the posture of Appellee, both Thompson and 51 Concrete present one issue for review:
Whether the trial court correctly determined the date that interest began to
accrue on the judgment.
III. Standard of Review
This case was tried without a jury. Consequently, we review the findings of fact made by
the trial court de novo, with a presumption of correctness unless the preponderance of the
evidence is to the contrary. Tenn. R. App. P. 13(d). The trial court’s conclusions of law,
however, are reviewed de novo and “are accorded no presumption of correctness.”
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).
IV. Analysis
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A. Damages and Interest
Appellant argues that the trial court erred when it awarded damages based on the amount
of BancorpSouth’s judgment against Chorley. Appellant asserts that, instead, the proper
measure of damages is the full amount of the proceeds from the sale of the collateral.
Appellant also argues that the trial court erred when it did not award pre-judgment
interest. Appellees assert that the trial court’s award of post-judgment interest actually
amounts to pre-judgment interest and should be reversed.
The terms of the security agreement, to which Appellees are subject under Tennessee
Code Annotated §47-9-201(a),2 provide that Appellant retains an interest in the proceeds
of the sale of the collateral. Specifically, the security agreement states that the “Debtor
gives Secured Party a security interest in all of the Property…and all proceeds and
products of the Property.” The security agreement defines proceeds to include “anything
acquired upon the sale … or other disposition of the Property.” BancorpSouth argues that
because the Appellees are subject to the security agreement, the trial court should have
used the total proceeds from the Appellees’ sale of the collateral as the proper measure of
damages.
“In the appeal of a damages award, the appellate review of ‘[w]hether the trial court has
utilized the proper measure of damages is a question of law that we review de novo.’”
Memphis Light, Gas & Water Div. v. Starkey, 244 S.W.3d 344, 352 (Tenn. Ct. App.
2007) (quoting Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998)). “The
amount of damages awarded, however, is a question of fact so long as the amount is
within the limits set by the law.” Id. BancorpSouth’s complaint asserts a conversion
claim against the Appellees. When a plaintiff sues a third party for conversion of secured
property, the plaintiff is entitled to damages in the amount of the fair market value of the
secured property at the time of sale. See Mammoth Cave Prod. Credit Ass’n v. L.H.
Oldham and Walter Taylor d/b/a Smith County Tobacco Warehouse Co., 469 S.W.2d
833, 840 (Tenn. Ct. App. 1977). In using BancorpSouth’s judgment against Chorley as a
basis for calculation of damages, the trial court did not use the proper measure of
damages. Because the trial court failed to use the correct measure of damages, we
reverse the trial court’s damage award.
The calculation of damages in this case requires a determination of the fair market value
of the collateral. None of the parties dispute that Thompson sold two pieces of the
collateral for a total of $61,000, and 51 Concrete sold the third piece of collateral for
$23,000. None of the parties have suggested a fair market value other than the sale price.
In the absence of other evidence regarding the value of converted property, a court may
assume the sale price constituted fair market value. See Hobbs v. Hobbs, No.W2004-
2
“[A] security agreement is effective according to its terms between the parties, against
purchasers of collateral, and against creditors.” Tenn. Code Ann. § 47-9-201(a).
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01553-COA-R3-CV, 2004 WL 1541866 (Tenn. Ct. App. June 29, 2005). Because there
is no evidence aside from the sale price, we hold that these values represent the fair
market value of the collateral at the time of conversion. Therefore, BancorpSouth is
entitled to a judgment against Thompson in the amount of $61,000 and a judgment
against 51 Concrete in the amount of $23,000.
B. Attorney’s Fees
Appellant argues that the trial court erred when it held that Appellant did not have a
statutory or contractual basis to collect attorney’s fees from Appellees. “In Tennessee,
courts follow the American Rule, which provides that litigants must pay their own
attorney’s fees unless there is a statute or contractual provision providing otherwise.”
Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005). In BancorpSouth I, we held only
that Appellant could rely on certain UCC provisions codified in the Tennessee Code
Annotated to seek attorney’s fees. BancorpSouth I at *6. We also held that “the
provisions in the security agreement on attorney[’s] fees and legal expenses would be
applicable to 51 Concrete and Thompson.” Id. Despite our holdings in BancorpSouth I,
the trial court concluded on remand that “BancorpSouth’s claim for attorney’s fees fails
because neither [of the Appellants] entered into an agreement with BancorpSouth that
provides for attorney’s fees, nor is there a statutory provision providing for the award of
attorney’s fees in this case. Therefore, BancorpSouth is not entitled to an award of
attorney’s fees.”
Typically, appellate courts “will not interfere with a trial court’s decision regarding
attorney fees except upon a clear showing of abuse of discretion.” BancorpSouth I at *4
(quoting Taylor, 158 S.W.3d at 359). “A trial court abuses its discretion when it ‘applies
an incorrect legal standard, or reaches a decision which is against logic or reasoning that
causes an injustice to the party complaining.’” Id. (quoting Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001)). On remand, the trial court again concluded that
BancorpSouth had neither a statutory nor contractual basis for collecting attorney’s fees.
Because the trial court failed to properly apply our holding in BancorpSouth I, we
undertake to examine the statutory and contractual provisions to resolve the issue of
whether Appellant is entitled to attorney’s fees.
In BancorpSouth I, this Court held that the Appellant could seek attorney’s fees under
Tennessee Code Annotated Section 47-9-607(d). BancorpSouth I at *6. Section 47-9-
607(d) states that a “secured party may deduct from the collections made … reasonable
expenses of collection and enforcement, including reasonable attorney’s fees and legal
expenses incurred by the secured party.” Reasonable attorney’s fees and legal expenses
include “only those fees and expenses incurred in proceeding against account debtors or
other third parties.” Tenn. Code Ann. § 47-9-607, cmt. 10. This Court has determined
that “in this conversion action, [BancorpSouth] may rely on these UCC provisions to seek
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attorney fees and legal expenses.” BancorpSouth I at *6.
Although the statute applies to the case at bar, the statute’s language does not entitle
Appellant to attorney’s fees in addition to an award of damages. When reading “statutory
language that is clear and unambiguous, we must apply its plain meaning in its normal
and accepted use, without a forced interpretation that would limit or expand the statute’s
application.” Eastman Chemical Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). A
plain reading of Subsection (d) only allows that a secured party may deduct attorney’s
fees and legal expenses from any collections made. The statute does not make any
mention of collecting attorney’s fees in addition to other collections. Therefore, while
Appellant is certainly able to rely on Tennessee Code Annotated Section 47-9-607(d), the
statute does not permit Appellant to collect attorney’s fees beyond its award. Rather,
under the statute, Appellant may only deduct such fees from its award. Other
jurisdictions have reached the same conclusion when interpreting this UCC section. See
Amegy Bank Nat. Ass’n v. DB Private Wealth Mortg., Ltd., 2014 WL 2199641, *4
(M.D. Florida May 27, 2014) (holding that, under this UCC provision, “attorney’s fees
may be deducted from a judgment. Attorney’s fees may not be added to the amount of
the obligation.”); CapTran/Tanglewood LLC v. Thomas N. Thurlow & Associates, 2011
WL 2969835, *4 (S.D. Texas July 21, 2011) (“The plain language [of this UCC
provision] is that attorney fees are to be deducted from, rather than added to, the amount
collected.”); M & I Business Credit, LLC, v. Genie Industries, Inc., No. 10-1660
(JRT/JJK), 2011 WL 284488 (D. Minn. Jan. 25, 2011) (holding that, based upon the same
UCC provision, the plaintiff was “not entitled to recover attorney fees and legal expenses
in addition to the [judgment amount].”).
Turning to the Appellant’s contractual claim for attorney’s fees, Appellant argues that the
security agreement’s terms require an award of attorney’s fees. In BancorpSouth I, this
Court held that because Appellees are subject to the security agreement between Chorley
and BancorpSouth,3 Appellant has a contractual basis for seeking attorney’s fees. Id. at
*7. However, this Court declined “to address whether the evidence shows that
BancorpSouth is entitled to … attorney fees and legal expenses.” Id. As noted earlier in
this opinion, the trial court did not correctly apply the BancorpSouth I holding on
remand. Instead, the trial court concluded that Appellant had no contractual basis for
seeking attorney’s fees.
Because the interpretation of a written agreement is a matter of law, Allstate Ins. Co. v.
Watson, 195 S.W.3d 609, 611 (Tenn. 2006), we undertake to interpret the language of the
security agreement, de novo, in order to resolve the issue of whether Appellant is entitled
to attorney’s fees under the agreement. “The cardinal rule for interpretation of contracts
is to ascertain the intention of the parties and to give effect to that intention, consistent
with legal principles.” Bob Pearsall Motors, Inc. v. Regal Chrysler–Plymouth, Inc., 521
3
See Tennessee Code Annotated Section 47-9-201(a).
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S.W.2d 578, 580 (Tenn.1975). When interpreting a contract, the interpretation should be
one that gives reasonable meaning to all of the provisions of the agreement, without
rendering portions of it neutralized or without effect. See Davidson v. Davidson, 916
S.W.2d 918 922–23 (Tenn.Ct.App.1995). The entire written agreement must be
considered. D. & E. Const. Co. v. Robert J. Denley Co., 38 S.W.3d 513, 518–19 (Tenn.
2001).
The security agreement states that
If Secured Party repossesses the Property or enforces the obligations of an
account debtor, Secured Party may keep or dispose of the Property as
provided by law. Secured Party will apply the proceeds of any collection or
disposition first to Secured Party’s expenses of enforcement, which
includes reasonable attorney’s fees and legal expenses to the extent not
prohibited by law, and then to the Secured Debts. Debtor … will be liable
for the deficiency, if any.
Appellant argues that the language “Secured Party will apply the proceeds of any
collection or disposition first to Secured Party’s expenses of enforcement, which includes
reasonable attorney’s fees and legal expenses” requires that the Appellees pay for all of
the attorney’s fees that Appellant has incurred in this case. We disagree. While that
language standing alone may create liability for attorney’s fees, it is well settled that this
Court must read contractual language in the context of the entire agreement. D. & E.
Const. Co., 38 S.W.3d at 518–19. The use of the term “Secured Party” drives our
interpretation. By its own terms, the disputed provision applies only to a “Secured
Party,” and only then in those circumstances where a “Secured Party” has collected or
disposed of the collateral. Here, Thompson and 51 Concrete are third parties, not secured
parties. Under the plain language, we cannot read this provision to impose liability upon
Thompson and 51 Concrete for BancorpSouth’s attorney’s fees.
The provision simply does not contemplate the factual scenario presented in this case.
Furthermore, the language “any collection or disposition” does not serve to create
liability for attorney’s fees in all cases because such collection or disposition is still
contingent on the secured party taking the action of “collecting or disposing.” Here, it is
undisputed that the secured party did not keep or dispose of the collateral. In short, the
contractual language on which Appellant relies does not provide BancorpSouth with a
contractual right to recover attorney’s fees. Our holding does not contradict our previous
holding in BancorpSouth I. In BancorpSouth I, this Court merely held that the
Appellees were subject to the terms of the security agreement. This Court declined “to
address whether the evidence shows that BancorpSouth is entitled to … attorney fees and
legal expenses.” Much like our holding in BancorpSouth I with regard to the UCC
provisions, we only mandated that the trial court consider the contractual provisions
affecting the case. The trial court failed to comply with that mandate, thus placing the
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issue squarely before this Court. Accordingly, based on the plain and unambiguous
language of the security agreement, and for the foregoing reasons, we conclude that
Appellant is not entitled to collect its attorney’s fees from the Appellees.
C. Punitive Damages
BancorpSouth argues that the trial court erred when it held that 51 Concrete and
Thompson were not liable for punitive damages. BancorpSouth argues that Appellees’
failure to check whether there was a prior interest in the collateral was reckless conduct
sufficient to uphold an award of punitive damages. Appellant also argues that the
Appellees acted intentionally to subvert the rights of the Appellant in the collateral when
they refused to remit the proceeds of the sale of the collateral to Appellant.
BancorpSouth argues that such conduct rises to a sufficiently egregious level so as to
warrant an award of punitive damages.
Our Supreme Court revised the courts’ approach to punitive damages in Hodges v. S.C.
Toof & Co., 833 S.W.2d 896 (Tenn. 1992). “The trial court may award punitive damages
if it finds, by clear and convincing evidence, that a defendant’s wrongful actions were
intentional, fraudulent, malicious, or reckless.” White v. Empire Exp., Inc., 395 S.W.3d
696, 720 (Tenn. Ct. App. 2012) (citing Hodges, 833 S.W.2d at 901). “Clear and
convincing evidence ‘leaves no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” White, 395 S.W.3d at 721 (quoting Hodges, 833
S.W.2d at 901, n. 3). This heightened standard of proof is required “because punitive
damages are to be awarded only in the most egregious of cases.” Hodges, 833 S.W.2d at
901. Whether the evidence clearly and convincingly establishes that punitive damages
are warranted is a question of law, subject to de novo review with no presumption of
correctness. See White, 395 S.W.3d at 721.
The trial court held that the Appellees did not engage “in conduct that is the egregious
type of conduct for which punitive damages are designed to deter.” The trial court further
concluded that “BancorpSouth failed to establish by clear and convincing evidence that
either Thompson Machinery or 51 Concrete engaged in the type of intentional,
fraudulent, malicious or reckless conduct that justifies the award of punitive damages
under Tennessee law.” Upon review of the record, we agree with the trial court’s
conclusion.
Appellant’s brief maligns Appellees’ failure to discover the security interest in the
collateral and asserts that this failure constitutes reckless conduct sufficient to merit
punitive damages. Appellees do not dispute that they purchased the collateral without
attempting to discover whether a prior security interest existed. Appellees admit that it
was their practice to not perform checks for prior interests in equipment they were
purchasing at the time Chorley sold them the collateral. Appellees also presented
evidence that not checking for such interests was standard industry practice at the time.
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Appellant cites Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008) in support
of its argument that even if a party follows industry practice, as the Appellees did in this
case, punitive damages may still be awarded. In Flax, our Supreme Court held that “if a
manufacturer knows that a common industry practice in an industry presents a substantial
and unjustifiable risk to consumers, then compliance with the common practice is not an
absolute bar to the recovery of punitive damages.” Id. at 536.
Flax, however, is factually distinguishable from the case at bar. The Flax plaintiffs
brought a products liability claim against DaimlerChrysler after the seats in a vehicle
manufactured by DaimlerChrysler caused the death of a child. Id. at 526. Testimony in
Flax revealed that DaimlerChrysler’s engineers were aware of the dangers posed by the
car seat’s design, but the company chose not to change their design. Id. at 535. On these
facts, the Supreme Court held that compliance with industry standards was not an
absolute bar to punitive damages. Id. at 536. The case at bar, however, is a conversion
case. Testimony reveals that both Appellees had a prior business relationship with
Chorley. Thompson had been conducting business with Chorley since 1998. The record
further reveals that Chorley misrepresented to both Thompson and 51 Concrete that the
collateral was not subject to a prior interest. While compliance with industry standards is
not an absolute bar to punitive damages, we fail to see how the Appellees’ conduct can be
compared to the conduct of DaimlerChrysler in Flax. Based on the totality of the
circumstances, we cannot conclude that the evidence clearly and convincingly establishes
the Appellees’ conduct as sufficiently egregious as to merit punitive damages.
Finally, Appellant argues that Appellees’ refusal to remit all proceeds from the sale of the
collateral was intended to subvert the rights of Appellant, thus giving rise to grounds for
punitive damages. Neither party contests that the Appellees cooperated with the
Appellant in providing information about the collateral. Appellees do not deny that
Appellant has an interest in the collateral. The trial court found that Appellees attempted
to resolve Appellant’s claims. The record reveals that Thompson and 51 Concrete helped
BancorpSouth to locate the collateral after Chorley’s default. Appellees have only
disputed the amount they are required to remit to BancorpSouth. From the totality of the
circumstances, we cannot conclude that Appellees’ conduct in this regard was so
egregious as to warrant punitive damages. The judgment of the trial court denying
punitive damages is, therefore, affirmed.
V. CONCLUSION
For the foregoing reasons, we reverse the trial court’s award of damages, reverse the trial
court’s holding that BancorpSouth had no statutory or contractual basis for seeking
attorney’s fees, and affirm the trial court’s denial of punitive damages. We remand the
case to the trial court for entry of judgment in favor of BancorpSouth and against
Thompson Machinery in the amount of $61,000 and against 51 Concrete in the amount of
10
$23,000. The case is also remanded for any further proceedings that may be necessary
and are consistent with this opinion. Costs of this appeal are assessed one-third to the
Appellant, BancorpSouth and its surety, one-third to Appellee Thompson Machinery, and
one-third to Appellee 51 Concrete, for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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