Mary Catherine Gentry v. Tagner H. Bailey ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 1, 2012 Session
MARY CATHERINE GENTRY v. TAGNER H. BAILEY ET AL.
Appeal by Permission from the Chancery Court for Hamilton County
No. 07-0368 Jeffrey M. Atherton, Chancellor
No. E2011-01278-COA-R9-CV - Filed February 27, 2012
A jury awarded Mary Catherine Gentry (“the Plaintiff”) compensatory damages of $80,000
against four defendants involved in the sale to her of a condominium. It also awarded
punitive damages in the amount of $30,000 – $10,000 each against three of the four
defendants. The defendants (collectively referred to herein as “the Defendants”) are Battery
Place Condominiums, LLC, the owner of the complex (“the Owner”); Tagner H. Bailey, the
builder of the complex (“the Builder”); Gina Sakich, the realtor who handled the transaction
(“the Realtor”); and Realty Center of Chattanooga, Inc., the agency for which the Realtor
worked (“the Agency”). Before the trial court entered judgment on the verdict, the Builder
and the Owner renewed their motion for directed verdict. The trial court entered an order on
March 10, 2010, that purports to (1) grant a directed verdict on the issue of punitive damages;
(2) grant the motion for directed verdict on the issue of compensatory damages; (3) grant a
new trial limited to compensatory damages; and (4) deny the motion for directed verdict as
to reasonable reliance. Thereafter the chancellor who presided over the trial retired and a
new chancellor was appointed. Numerous motions and hearings later, the new chancellor
entered an order setting the case for trial; the order also modified, pursuant to Tenn. R. Civ.
P. 60.01, the first chancellor’s March 10, 2010, order by deleting the earlier order’s grant of
a directed verdict as to compensatory damages. The trial court later granted the Tenn. R.
App. P. 9 application of the Defendants and stayed all proceedings pending appeal. We
likewise granted the Defendants’ request for an interlocutory appeal. Finding no error in the
trial court’s judgment, we affirm.
Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment
of the Chancery Court Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Sean W. Martin and Blair Bennington Cannon, Chattanooga, Tennessee, for the appellants,
Gina Sakich and Realty Center of Chattanooga, Inc.
Barry L. Abbott, Chattanooga, Tennessee, for the appellants, Tagner H. Bailey and Battery
Place Condominiums, LLC.
Pamela R. O’Dwyer and Randall D. Larramore, Chattanooga, Tennessee, for the appellee,
Mary Catherine Gentry.
OPINION
I.
A statement in the Defendants’ brief captures the essence of the jury’s verdict:
[The Plaintiff] successfully convinced the jury that the
[D]efendants misrepresented her condominium as a two
bedroom unit when it was only a one bedroom with study and
that as a one bedroom with study it was worth $80,000 less than
what she paid at the time of purchase.
The jury found that all defendants, with the exception of the Realtor, were guilty of
intentional misrepresentation and it awarded punitive damages of $10,000 each against the
other three defendants for a total of $30,000. The jury also found that all of the defendants
violated the Tennessee Consumer Protection Act, Tenn. Code Ann. §§ 47-18-101 et seq.
(2001 & Supp. 2011). Chancellor Howell N. Peoples presided over the trial. It lasted
approximately one week.
The Plaintiff submitted a proposed judgment on the jury verdict, to which the
Defendants objected. The Agency filed a renewed motion for directed verdict on the sole
basis that punitive damages could not be awarded against it, as a principal, when its agent,
the Realtor, had been absolved of liability for these damages. The Builder and the Owner
then renewed their joint motion for directed verdict. They asserted that the punitive damages
award did not satisfy the prescriptions of Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.
1992); that the Plaintiff failed to prove her damages; and that she failed to prove that she
justifiably relied upon the Defendants’ misrepresentations. Chancellor Peoples heard
argument on the pending motions on February 18, 2010, and announced his ruling from the
bench. The court first stated that there was evidence from which the jury could have found
“that an intentional misrepresentation was made,” but that it was not clear and convincing.
Therefore, the court granted the motion for directed verdict as to punitive damages.
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Concerning the issues of compensatory damages and reasonable reliance, the court stated the
following:
On the issue of compensatory damages, we have the testimony
of the Plaintiff, Ms. Gentry, the testimony of Mr. Rominger [the
Plaintiff’s expert], and the testimony of Mr. Tindell [the
Defendants’ expert]. At the time the Plaintiff gave her
deposition, she didn’t know what the value of her unit was.
* * *
She, apparently, learned, sometime between her deposition and
trial, what she believed to be information sufficient to state the
value of her unit.
Mr. Rominger relied upon pre-construction contracts for
reaching his value. . . .
Mr. Tindell’s testimony could be called into question because of
his relationship with [the Builder] from a personal standpoint.
In the opinion of the Court, the Plaintiff’s evidence regarding
the value of the property is insufficient, but so is the
Defendant’s. The Plaintiff is required to prove the damages, and
the testimony of Mr. Rominger and Ms. Gentry certainly does
not do that. So the Court would find that the Plaintiff is entitled
to a new trial on the issue of compensatory damages.
On the matter of reliance, the evidence is certainly contradictory
on what was available to the Plaintiff to inform her about the
unit. The jury was entitled to weigh that evidence and to reach
a conclusion that her reliance was reasonable . . . . The jury
made their finding and the Court will not reverse that finding.
That would apply also to the Consumer Protection Act claims.
When asked why the court was granting a new trial when the parties were “not at a new trial
motion yet,” the court stated “[t]hat’s what you’re looking at.” Counsel for the Plaintiff
verbally articulated his understanding of the court’s ruling as follows:
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Based on what I understand, the order should be entered
sustaining liability under the cause of actions found by the jury.
We are awarded a new trial with regard to the level of
compensatory damages. And with regard to punitive damages,
that’s just a directed verdict. We don’t have any new trial
regarding that issue?
The court responded, “[r]ight.” The court announced that the new trial would be with a new
jury and suggested that counsel for the Builder and the Owner prepare an order.
The order, entered March 10, 2010, states, in pertinent part:
This cause . . . came before the Court on February 18, 2010
upon the Defendants’ (Tagner H. Bailey and Battery Place
Condominiums, LLC) Renewed Motion for Directed Verdict
pursuant to Rules 50 and 59 of the Tennessee Rules of Civil
Procedure. The Court made certain findings and conclusions
during the hearing . . . . The transcript of the findings and
conclusions of the Court is attached hereto . . . and incorporated
by reference herein.
WHEREFORE, . . . it is hereby,
ORDERED, ADJUDGED AND DECREED as follows:
1. The Defendants’ Motion for Directed Verdict with respect to
the issue of punitive damages is GRANTED.
2. The Defendants’ Motion for Directed Verdict with respect to
the issue of compensatory damages is GRANTED.
3. The parties are granted a new trial pursuant to Rule 59 of the
Tennessee Rules of Civil Procedure on the issue of
compensatory damages only.
* * *
5. The Defendants’ motion for Directed Verdict is DENIED
with respect to the issue of reasonable reliance.
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(Capitalization in original; bold type in original omitted.)
Chancellor Peoples retired on or about March 31, 2010. He was replaced in August
2010 by Chancellor Jeffrey M. Atherton. On November 4, 2010, the Plaintiff filed a motion
to set a date for the new trial. The Defendants filed a motion pursuant to Tenn. R. Civ. P. 63 1
asking the court to certify familiarity with the record and to determine that the case could
proceed without prejudice to the parties. On January 3, 2011, Chancellor Atherton certified
his familiarity with the record and determined that the case could proceed. Accordingly, the
court set a hearing date in response to the Plaintiff’s motion. The Defendants filed a “Joint
Supplemental Response in Opposition to Plaintiff’s Motion to Set” in which they argued that
the order entered March 10, 2010, was a final order that disposed of all matters by granting
a directed verdict on compensatory damages. As to the part of the order granting a new trial,
the Defendants argued that a new trial was granted conditionally, i.e., to be effective in the
event the directed verdict was reversed on appeal, and, since the Plaintiff did not appeal the
order, the issue of a new trial was moot.
On February 24, 2011, the court filed a memorandum opinion announcing its decision
to set the case for trial. The court began by determining that the March 10, 2010, order was
not a final order that resolved all issues as to all parties, nor was it certified as final pursuant
to Tenn. R. Civ. P. 54.02. The court ultimately determined that
the holding of Chancellor Peoples, as reflected in the transcript
of the Hearing, that both parties’ proof is “insufficient” should
not be interpreted as the formal granting of a Motion for
Directed Verdict. Even if it were, the specific denial of the
Motion for Directed Verdict on the “Reasonable Reliance” issue
precludes the Court from now determining that the Order of
March 10, 2010, was an order that fully adjudicated the case. In
addition, the finding of the Court that Plaintiff was entitled to a
new trial on the issue of compensatory damages does not
represent a T.R.C.P. 50.03 “conditional ruling” under the
circumstances of this case. Thus, the March [1]0, 2010, “Order
1
Rule 63 states, in pertinent part:
If a trial or hearing has been commenced and the judge is unable to
proceed, any other judge may proceed upon certifying familiarity with the
record and determining that the proceedings in the case may be completed
without prejudice to the parties. . . .
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on Jury Verdict and Setting New Trial On Compensatory
Damages” should be amended to provide correction and
clarification.
* * *
. . . . [P]ursuant to T.R.C.P. 60.01 and for the purposes of
clarifying the record and correcting an oversight and/or a
clerical mistake, the Court would request the parties prepare an
Order amending the March 10, 2010 Order by deleting the
paragraph Numbered 2 which relates to a directed verdict as to
compensatory damages. It is simply incongruent with the
unequivocal opinion announced by [Chancellor Peoples] at the
February 18, 2010 Hearing, and particularly when one considers
the clear intent of the Court that a new trial would take place as
to the issue of compensatory damages . . . . Further, the Order
should be amended to reflect that the granting of the directed
verdict relating to punitive damages includes Defendant, Realty
Center, LLC, not merely [the Builder] and [the Owner].
(Footnote omitted.)
Upon the failure of the parties to submit an order satisfactorily reflecting the court’s
holdings in its memorandum opinion, the court prepared and entered its own order which
states, in pertinent part:
The order of March 10, 2010, is hereby amended only as
follows:
a. Paragraph No. 2 on Page 2 is deleted in its
entirety; and
b. As to Paragraph No. 1 on Page 2, the
Defendants’ Motion for Directed Verdict with
respect to the issue of punitive damages is
GRANTED and includes Defendants Realty
Center, LLC, Tagner Bailey, and Battery Place,
LLC.
(Capitalization in original; bold type in original omitted.)
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As we have previously indicated, the Defendants filed an application pursuant to
Tenn. R. App. P. 9 for permission to take an interlocutory appeal of the order amending the
March 10 2010, order. The trial court granted the application and stayed all proceedings.
We, likewise, granted the Defendants’ application.
II.
The issues, as stated verbatim in the Defendants’ brief, are:
Whether the Plaintiff has a right to a second trial on the issue of
compensatory damages under the order . . . entered on March
10, 2010, when she failed to sustain her burden of proof on this
issue in the first trial.
Whether a successor chancellor, in reviewing the record under
Rule 63, can alter, amend, or overrule decisions of his
predecessor based on his belief that his predecessor did not
mean to rule as the plain language of the order would indicate.
III.
Insofar as this case involves the interpretation of the rules of civil procedure, it
presents questions of law. Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004); see Green v.
Moore, 101 S.W.3d 415, 418 (Tenn. 2003). We review questions of law de novo with no
presumption that the trial court decided them correctly. Green, 101 S.W.3d at 418; Southern
Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). This
case also requires us to interpret the trial court’s order of March 10, 2010. “The . . .
interpretation of a [court’s] order . . . is a question of law that this Court reviews de novo.”
Lamar Advertising Co. v. By-Pass Partners, 313 S.W.3d 779, 785 (Tenn. Ct. App. 2009)
(citing Hastings v. Hastings, No. 01A01–9603–CH–00128, 1996 WL 33480501 at *2 (Tenn.
Ct. App. Nov. 27, 1996)). A trial court’s decision whether or not to grant relief from a
judgment or order pursuant to Tenn. R. Civ. P. 60.01 is reviewed for abuse of discretion.
SecurAmerica Business Credit v. Schledwitz, No. W2009-02571-COA-R3-CV, 2011 WL
3808232 at *8 (Tenn. Ct. App. W.S., filed Aug. 26, 2011). Under this standard, a trial
court’s decision must be upheld if reasonable minds could disagree about the correctness of
the decision of the trial court. Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001)).
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IV.
The Defendants do not strictly adhere to their stated issues in making their arguments.
The issues and the arguments, in our opinion, suffer from the common problem of circular
reasoning. They try to lead us to the conclusion that Chancellor Peoples could not have
granted the Plaintiff a new trial because he granted the Defendants a directed verdict. The
Defendants appear unwilling to entertain the possibility that the March 10, 2010, order upon
which the outcome of this case turns, was, at best, ambiguous and subject to interpretation.
The Defendants then attempt to build upon this weak inner circle with additional circular
assertions that the March 10, 2010, order is final, and not subject to modification, because
a directed verdict on damages necessarily disposes of all claims and that the new chancellor
acted outside his authority in modifying a final order. We are unwilling to follow these
circles from point to point as charted by the Defendants. Instead, we will focus on what we
perceive to be the key issue or issues. This approach will allow us to address the Defendants’
arguments that are pertinent to the dispositive issues, and perhaps show why some of the
other arguments are not pertinent.
The key issue in this case is the interpretation of the March 10, 2010, order. The
Defendants take the position that the subject order clearly and unequivocally grants them a
directed verdict. We disagree. In construing an order, the primary goal is the same as with
any writing, i.e., to ascertain the intended effect looking first to the language of the
document. Livingston v. Livingston, 429 S.W.2d 452, 456 (Tenn. Ct. App. 1967). The
“general rule” in construing orders and judgments
is that a judgment should be so construed as to give effect to
every part of it and where there are two possible interpretations
that one will be adopted which is in harmony with the entire
record, and is such as ought to have been rendered and is such
as is within the jurisdictional power of the court. Moreover, the
judgment will be read in the light of the pleadings and the other
parts of the record.
Lamar Advertising Co., 313 S.W.3d at 786 (quoting John Barb, Inc. v. Underwriters at
Lloyds of London, 653 S.W.2d 422, 423 (Tenn. Ct. App.1983) (internal citation omitted)
(quoting Grant v. Davis, 8 Tenn. C. C. A. 315, 319 (Civ. App. 1918)). Further, when the
order expressly incorporates a transcribed ruling from the bench, the transcription of the oral
pronouncement is given the legal effect of being part of the order. See Grand Valley Lakes
Property Owners Ass’n v. Burrow, No. W2011-00573-COA-R3-CV, 2011 WL 6916477 at
*6 (Tenn. Ct. App. W.S., filed Dec. 28, 2011)(courts do not necessarily review oral
announcements unless transcribed and incorporated into decree).
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The March 10, 2010, order attaches and expressly incorporates “[t]he transcript of the
findings and conclusions of the Court” from the February 18, 2010 hearing. Therefore, the
Defendants miss the mark in stressing the rule that a court speaks only through its orders and
not through oral pronouncements. See Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct.
App. 1977). Obviously, it would be helpful to the Defendants if we would ignore the
transcript. Not once in the transcript did Chancellor Peoples indicate that he was granting
a directed verdict on anything other than punitive damages. On the other hand, he did
expressly state that he was granting “a new trial . . . on the issue of compensatory damages.”
When questioned by counsel, the court stated, referring to its previous statement granting a
new trial, “[t]hat’s what you’re looking at.” After counsel for the Plaintiff summarized his
understanding of the court’s ruling to include “a new trial with regard to the level of
compensatory damages,” the court responded, “[r]ight.” Twice more in the hearing, the court
confirmed that there would be a new trial with a new jury.
The only thing in the transcript of the February 18, 2010, hearing that is even arguably
helpful to the Defendants’ position is the court’s observation that “the testimony of Mr.
Rominger and Ms. Gentry certainly does not” prove the Plaintiff’s damages. This comment
comes immediately after the court’s observation that “the Plaintiff’s evidence regarding the
value of the property is insufficient, but so is the Defendant’s.” The most logical
interpretation of the totality of this language is that it is a commentary by the trial court, as
thirteenth juror, on the persuasive force of the evidence offered by both parties, rather than
a directed verdict based on the strongest possible view of the Plaintiff’s proof without regard
to any countervailing evidence offered by the Defendants. Cf. Cooper v. Tabb, 347 S.W.3d
207, 221 (Tenn. Ct. App. 2010) (standard for new trial based on dissatisfaction with the
verdict) with Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994)(standard for directed
verdict). Our interpretation is also to be preferred because it is “in harmony” with the
language expressly granting a new trial.
It is true that the language of the signed order of March 10, 2010, purports to grant
“[t]he Defendants’ Motion for Directed Verdict with respect to the issue of compensatory
damages.” The Defendants acknowledge that the order also expressly grants “a new trial . . .
on the issue of compensatory damages only,” but assert that since the only motion before the
court was a motion for directed verdict, the new trial was conditional. They base their
argument on the following language in Tenn. R. Civ. P. 50.03:
If the motion for judgment entered in accordance with a motion
for a directed verdict, provided for in 50.02, is granted, the court
shall also rule on the motion for a new trial, if any, by
determining whether it should be granted if the judgment is
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thereafter vacated or reversed, and shall specify the grounds for
granting or denying the motion for a new trial. If the motion for
a new trial is thus conditionally granted, the order thereon does
not affect the finality of the judgment. If the motion for a new
trial is thus conditionally granted and the judgment is reversed
on appeal, the new trial shall proceed unless the appellate court
has otherwise ordered. In case the motion for a new trial has
been conditionally denied, the appellee on appeal may assert
error in that denial; and if the judgment is reversed on appeal,
subsequent proceedings shall be in accordance with the order of
the appellate court.
Id. (emphasis added). The Defendants would have us believe that any time a new trial is
granted as a result of a renewed motion for directed verdict, the new trial can only happen
upon the directed verdict being reversed on appeal. In other words, they argue that the new
trial must be conditional. The Defendants take this a step farther in their reply brief by
arguing that “the Court lacked the power to grant an unconditional second trial.” The
Defendants are mistaken. There is language in Tenn. R. Civ. P. 50.02 that expressly allows
a trial court to deny a renewed motion for directed verdict and grant a new trial. That
language is:
. . . . A motion for a new trial may be joined with this motion, or
a new trial may be prayed for in the alternative. If a verdict was
returned, the court may allow the judgment to stand or may
reopen the judgment and either order a new trial or direct the
entry of judgment as if the requested verdict had been directed.
If no verdict was returned the court may direct the entry of
judgment as if the requested verdict had been directed or may
order a new trial.
Id. (emphasis added).
The Defendants seem to believe it helps them that the trial court cited Tenn. R. Civ.
P. 59 in the paragraph of the order granting a new trial. Tenn. R. Civ. P. 59.07 expressly
states that “[a] new trial may be granted to all or any of the parties and on all or part of the
issues in an action in which there has been a trial by jury for any of the reasons for which
new trials have heretofore been granted.” This language, in our opinion, is entirely consistent
with considering and denying a motion for directed verdict but granting a new trial as
thirteenth juror.
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The Defendants do not explain why the court went to the trouble in the March 10,
2010, order of expressly denying the renewed motion for directed verdict as to reasonable
reliance if it fully intended to enter a final order disposing of the case for lack of proof of
compensatory damages. We agree with Chancellor Atherton that the express denial of the
motion as to reasonable reliance is more consistent with a non-final order granting a new trial
than with a final order granting a directed verdict.
In summary, we find the Defendants’ arguments unpersuasive. We hold that the
March 10, 2010, order, without regard to the incorporated transcript, contained an ambiguity
that was subject to interpretation. We hold that the trial court correctly determined from the
totality of the record that the March 10, 2010, order was intended as an order granting a new
trial limited to the issue of compensatory damages and not a directed verdict as to
compensatory damages. Obviously, a non-conditional grant of a new trial as to
compensatory damages and a grant of a directed verdict as to compensatory damages are
mutually exclusive concepts.
A recurrent argument by the Defendants is that the March 10, 2010, order was a final
order. They argue, therefore, that the modification of the order came too late as no appeal
was taken from that order. Our holding that the intent of the order was to grant a motion for
new trial disposes of this argument. It is well-settled that an “order granting a new trial is
not a final judgment and is not appealable as of right.” Evans v. Wilson, 776 S.W.2d 939,
941 (Tenn. 1989) (citing Panzer v. King, 743 S.W.2d 612, 616 (Tenn. 1988)).” Cooper, 347
S.W.3d at 218. Since the order was not final2 , it was subject to revision or modification. Id.
at 219.
The Defendants accuse Chancellor Atherton of using, or of misusing, the mechanism
of Tenn. R. Civ. P. 63 to conduct a carte blanche review of his predecessor’s actions and void
the plain language of the March 10, 2010, order. We disagree. It was the Defendants, in
fact, that asked the new chancellor to review the record in its entirety to determine whether
the proceedings could go forward from the point Chancellor Peoples last acted, or, whether
they must start over with a new trial. Thus, the new chancellor cannot be criticized for doing
2
It appears that even if the order is not treated as an order granting a new trial, it was not a final order
because it did not deal with the claims against the Realtor and the Agency. The March 10, 2010, order
purports to address only “Defendants’ (Tagner H. Bailey and Battery Place Condominiums, LLC) Renewed
Motion for Directed Verdict.” The only motion the Realtor and the Agency filed was limited to the punitive
damage award. It is certainly arguable that if the March 10 order granted the Builder and the Owner a
directed verdict for lack of proof of damages, the Realtor and the Agency should also be entitled to a defense
verdict, but the March 10 order did not on its face grant the Realtor and the Agent a dismissal. Thus, the
March 10 order could not be a final order because it disposes of “fewer than all of the . . . parties . . . .”
Tenn. R. Civ. P. 54.02.
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what the Defendants asked him to do. If any criticism is due, it can only be for his
interpretation and application of the March 10, 2010 order. Since our interpretation and
application of that order is precisely the same as that of Chancellor Atherton’s as reflected
in our holding expressed earlier in this opinion, we find no merit in the Defendants’ argument
that the trial court misused Rule 63 to reach a result. We also note that if the chancellor was
trying to “save the [P]laintiff from her failings” as the Defendants argue, he could have
achieved the same result simply by holding that, after reviewing the record pursuant to Tenn.
R. Civ. P. 63, he was unable to proceed. The result of such a ruling would have been a new
trial. Shofner v. Shofner, 181 S.W.3d 703, 714 (Tenn. Ct. App. 2004)(if the successor
judge cannot make the certification required, he or she “must” order a new trial).
Accordingly, we hold that the trial court did not violate Tenn. R. Civ. P. 63 in modifying the
order of March 10, 2010, entered by his predecessor.
Finally, the Defendants argue that the modification of the order was a misapplication
of Tenn. R. Civ. P. 60.01. This rule allows a court to correct “[c]lerical mistakes in . . .
orders . . . and errors therein arising from oversight or omissions. . . .” The Defendants argue
that the deletion of a directed verdict was a substantive alteration of the March 10, 2010,
order and not the correction of a clerical error. The obvious weakness of the Defendants’
position is that it mistakenly assumes a clerical error cannot affect the substantive meaning
of an order; obviously the correction of such an error would alter the substantive meaning
of the erroneous order. None of the Tennessee cases cited by the Defendants prohibit
correction of a clerical error just because the correction has a substantive effect. It is very
clear to us that Rule 60.01 allows the correction of a clerical error even if that correction
affects the substantive rights of the parties. For example, in SecurAmerica Business Credit
v. Schledwitz, No. W2009-02571-COA-R3-CV, 2011 WL 3808232 (Tenn. Ct. App. W.S.,
filed Aug. 26, 2011), we affirmed a trial court’s “Order Clarifying and Correcting” an order
of nonsuit as to certain guarantors that was entered on the same day as a substantial judgment
against those same guarantors. Id. at *9. The court corrected the order to show that the
nonsuit was not a dismissal that absolved the guarantors of liability but was limited to “the
fraudulent conveyance claims.” Id. at 6, 9.
The Defendants acknowledge, by reference to Vaughter v. Eastern Airlines, Inc.,
817 F.2d 685, 689 (11th Cir. 1987)(discussing Fed. R. Civ. P. 60(a)), that Rule 60.01 is
properly used to correct “mistakes or oversights that cause the judgment to fail to reflect what
was intended at the time of the trial.” Our discussion thus far has shown that we believe the
order being appealed did exactly that concerning the March 10, 2010, order. To the extent
the March 10, 2010, order can be said to reflect a directed verdict, that is not what was
intended and the order was properly amended to correct that mistake. Thus, we hold that the
trial court did not abuse its discretion in amending the March 10, 2010, order pursuant to
Tenn. R. Civ. P. 60.01to delete any reference to a directed verdict on compensatory damages.
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As we have indicated, the Defendants’ arguments do not all exactly match the stated
issues. To the extent we have failed to discuss a particular assertion, we have nevertheless
considered it and found that it does not affect our decision on the dispositive issue.
V.
The order of the trial court modifying the March 10, 2010 order to reflect that the
court was granting a new trial rather than granting the Defendants a directed verdict is
affirmed. Costs on appeal are taxed to the appellants, Gina Sakich, Realty Center of
Chattanooga, Inc., Tagner H. Bailey and Battery Place Condominiums, LLC. This case is
remanded, pursuant to applicable law, for further proceedings.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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