Jay Wilfong v. CRK Real Estate , LLC ( 2014 )


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  •                 IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    March 26, 2014 Session
    JAY WILFONG v. CRK REAL ESTATE, LLC, ET AL.
    Appeal from the Chancery Court for Wilson County
    No. 08260    Charles K. Smith, Judge
    No. M2013-00188-COA-R3-CV - Filed June 17, 2014
    This case arose out of a contract for the sale of real estate. The contract included a
    provision requiring the buyer to make “commercially reasonable efforts” to sell the
    property, and to split any profits with the seller if the property was resold within 36
    months. The buyer did not sell the property, and the seller brought suit, raising numerous
    claims, including breach of contract, breach of fiduciary duty, violations of the Real
    Estate Settlement Practices Act (RESPA), the Truth in Lending Act (TILA), the Fair Debt
    Collection Practice Act, the Consumer Protection Act, RICO, wrongful foreclosure,
    promissory fraud, civil conspiracy, collusion, intentional infliction of emotional distress,
    constructive trust, conversion and unjust enrichment. After a hearing, the trial court
    granted the buyer’s motion to dismiss thirteen of the seller’s claims, denied the motion to
    dismiss another six of his claims, and certified its order as final for the purposes of appeal
    under Tenn. R. Civ. P. 54.02. We affirm the trial court.
    Tenn. R. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
    D ON R. A SH, S R. J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.
    and R ICHARD H. D INKINS, JJ., joined.
    Jay Wilfong, Mt. Juliet, Tennessee, Pro Se.
    T. Price Thompson III, Lebanon, Tennessee; Sanford L. Michelman, Todd H. Stitt, Marc
    R. Jacobs, Encino, California, for the appellee(s), CRK Real Estate, LLC, RM Wilson
    County Investors, LLC, Hamid Mashhoon, Mondana Mashhoon Gordon, Mahasti
    Mashhoon, and The Mashhoon Family Inter Vivos Trust Dated May 4, 1997;
    W. Andrew Bobo, M. Wyatt Burk, Shelbyville, Tennessee, for the appellee, Traders
    1
    Bank;
    Timothy L. Warnock, Timothy G. Harvey, Nashville, Tennessee, for the appellee, Carol
    Perrin;
    John S. Hicks, Nashville, Tennessee; Sonya Smith Wright, Murfreesboro, Tennessee, for
    the appellees, Charles R. Kaelin and Marcus French.
    OPINION
    I. A R EAL E STATE S ALES C ONTRACT
    This case followed a long and convoluted course in the trial court, with the
    plaintiff bringing numerous claims under different theories of recovery against a number
    of different defendants. All the claims stemmed from a single contract for the sale of real
    estate, and the issues on appeal are mostly procedural in nature. Before examining those
    issues, however, we must first discuss the transaction from which the case arose.
    In 2005, Jay Wilfong entered into a contract to sell a ten acre tract of property on
    Beckwith Road in Mt. Juliet to CRK Real Estate, LLC for a price of $1.06 million (“The
    Contract of Sale”). The property was subject to a pre-existing $59,000 mortgage held by
    Traders National Bank. The financial terms of the sales contract required CRK to pay
    Wilfong $140,000 upon the closing, and to execute a Deed of Trust note for the
    remainder, “payable at the rate of zero percent (0%) interest,” with the note to be retired
    at the end of four years by a balloon payment.
    Another provision made a portion of the principal on the note, $115,000, payable
    “within five business days of the letting of bids by the State of Tennessee for the
    construction of an interchange at Interstate 40 and Beckwith Road, Wilson County,
    Tennessee and Purchaser’s refinancing of it and other surrounding property.”
    Section 9.14 of the sales contract, which is central to Mr. Wilfong’s claims, gave
    him the possibility of realizing a greater return on the sale. The section reads, in relevant
    part,
    Seller and Purchaser agree that for a period of thirty-six (36) months
    following the Closing Purchaser shall, using commercially reasonable
    efforts, seek to resell the Property either singularly or in conjunction with
    Purchaser’s other surrounding properties as Purchaser shall in its sole
    2
    judgment determine. . . If Seller is able to sell the Property within thirty-six
    (36) months of the closing date, Purchaser shall at the time of the resale of
    the Property pay Seller fifty percent (50%) of the resale price applicable to
    the property less $1,060,000, all costs of resale and closing costs so that the
    profit split shall be the net proceeds after deduction of all costs of sale and
    closing.
    Section 9.14 further provided CRK would not “transfer, convey, or sell the
    Property to any affiliated person or entity without the prior written consent of Seller . . .”
    According to Mr. Wilfong’s complaints, however, CRK did not make any serious attempt
    to sell the property in the three years following the execution of the contract, but instead
    made plans to develop the land itself, together with adjoining property CRK owned.
    II. C OMPLAINTS AND M OTIONS
    On June 9, 2008, Mr. Wilfong filed the first of a number of pleadings in this
    matter, a fairly brief complaint against CRK for declaratory judgment and for damages in
    the Chancery Court of Wilson County. He claimed he sold the land for less than it was
    worth and he gave CRK very lenient financing terms because the potential profit from its
    sale was part of the bargained-for consideration. He also contended CRK violated the
    contract by failing to make any serious attempt to sell the property in the three years
    following the execution of the contract, but instead made plans to develop the land itself.
    On July 14, 2010, Mr. Wilfong amended his complaint. He alleged CRK had
    effectively transferred the property to an “affiliated entity,” a family-owned California
    development company, in such a way as to avoid the trigger of an actual sale which
    would require sharing the profit. His complaint named the California developer and its
    individual members as additional defendants, as well as other individuals and real estate
    development companies connected with CRK in Tennessee.1 Mr. Wilfong also asserted
    CRK had failed to pay him the $115,000 he was entitled to under the contract of sale after
    the City of Mt. Juliet awarded construction contracts on the Beckwith Road interchange,
    and, as a result, he had to sell several other properties he owned at a discounted price in
    order to generate needed cash.
    On March 26, 2012, Mr. Wilfong filed a seventy page “Second Amended
    Complaint.” This second amended complaint named still more defendants as well as
    1
    Mr. Wilfong asserts, at the time of sale, the sole owner of CRK Real Estate LLC was defendant
    Charles R. Kaelin, but the number of defendants increased because of repeated changes to the ownership
    of the corporation and of its assets during the course of this litigation.
    3
    “Unnamed Third-Parties that Provided Financing and Conspired with Named
    Defendants.” Traders National Bank was named as a Defendant in Intervention.2 To
    avoid confusion, we will hereinafter refer to all the defendants except Traders National
    Bank as “CRK.” The Complaint recited twenty claims against the defendants, including
    breach of contract, breach of fiduciary duty, violations of the Real Estate Settlement
    Practices Act (RESPA), the Truth in Lending Act (TILA), the Fair Debt Collection
    Practice Act, the Consumer Protection Act and RICO, wrongful foreclosure, promissory
    fraud, civil conspiracy, collusion, intentional infliction of emotional distress, constructive
    trust and unjust enrichment.
    According to the Second Amended Complaint, CRK and its associates continued
    to conspire against him and to engage in a cover-up to further deny him his rights under
    the Contract of Sale. Among other things, he alleged CRK had purchased the mortgage
    on his home and two other notes and attempted to foreclose on them before the balloon
    payment on the Beckwith Road property became due. Mr. Wilfong asserted he had to file
    a Chapter 13 bankruptcy to prevent the foreclosure.
    On April 25, 2012, CRK filed a motion to dismiss nineteen of the twenty claims in
    the Second Amended Complaint for failure to state a claim.3 Traders National Bank filed
    its own motion to dismiss those claims which were directed against its participation in the
    alleged schemes of the other defendants. Among other things, the defendants argued Mr.
    Wilfong’s RESPA and TILA claims were barred by the statute of limitations. Four days
    before the scheduled hearing on the motion to dismiss the Second Amended Complaint,
    Mr. Wilfong filed a Motion for Leave to File a Third Amended Complaint.
    III. T HE T RIAL C OURT’S D ECISION
    On August 10, 2012, the trial court conducted a hearing on CRK’s motion to
    dismiss the Second Amended Complaint without having ruled on the Motion for Leave to
    File a Third Amended Complaint. After reading the briefs of the parties, the court ruled
    from the bench. The court granted the motion to dismiss, at least in part, thirteen of the
    claims in Mr. Wilfong’s second amended complaint, and it denied the motion as to six
    claims. Among the claims the court let stand were those for breach of contract against
    2
    According to Mr. Wilfong’s Second Amended Complaint, CRK Real Estate and all the
    remaining defendants demanded Traders National Bank be added as an “indispensable party” pursuant to
    Tenn. R. Civ. P. 19, and the request was granted on March 12, 2012.
    3
    The only claim unaddressed by CRK’s motion to dismiss was a claim for breach of fiduciary
    duty against Marcus French. Mr. French had served as Mr. Wilfong’s agent, and Mr. Wilfong alleged he
    deliberately withheld information about CRK’s actions from him.
    4
    CRK and Charles R. Kaelin and claims for civil conspiracy against all the defendants.
    The court also declared Mr. Wilfong needed to amend his undismissed claims to
    better state the damages he had allegedly suffered. At the request of counsel for
    defendants, the court agreed its rulings on the motion to dismiss could be considered a
    final order for purposes of appeal under Tenn. R. Civ. P. 54.02. The trial court’s rulings
    were memorialized in an order filed on August 27, 2012.
    Two of the court’s most important rulings for the purposes of the issues in this
    appeal, were its grant of the motion to dismiss Mr. Wilfong’s claims for violations of the
    Real Estate Settlement Practices Act (RESPA) and the Truth in Lending Act (TILA) on
    the basis of the expiration of the three year statute of limitations on those actions. The
    court also addressed Mr. Wilfong’s request to be allowed to file a Third Amended
    Complaint as follows: “Except as to any Counts, claims, causes of action and requests for
    declaratory judgment ordered to be dismissed with prejudice above, Plaintiff shall be
    granted leave to amend Plaintiff’s Second Amended Complaint as ordered above.”
    Mr. Wilfong subsequently filed a Motion to Alter or Amend the trial court’s order,
    which was denied. He also filed a Third Amended Complaint. The complaint included
    the same claims which previously appeared in his Second Amended Complaint, including
    some dismissed by the trial court, and specified an amount of damages for each claim, the
    largest being a $50,000,000 claim for compensatory, statutory, and punitive damages
    attached to Mr. Wilfong’s allegations of fraud and promissory fraud. However, this
    appeal only involves the issues raised by trial court’s ruling on Mr. Wilfong’s Second
    Amended Complaint and his Motion to Alter or Amend.4
    IV. A NALYSIS
    Mr. Wilfong filed his brief on appeal and presented his oral arguments to this court
    pro se. His brief lists seven different issues on appeal which were initially articulated by
    his former attorney. Mr. Wilfong announced in his brief and at oral argument he wishes
    to withdraw four of those issues from this court’s consideration, and he asks us to
    determine the remaining three, which we copy below verbatim, except we have
    renumbered them to avoid confusion:
    4
    We have examined Mr. Wilfong’s Second Amended Complaint and Third Amended Complaint
    side-by-side and have found very few differences between them, aside from his specification of the
    amounts of his damages and the addition of two new allegations against Traders National Bank. Mr.
    Wilfong alleged the bank was guilty of violating his privacy by disclosing his financial information to
    CRK, and it did not possess the original notes on his three mortgaged properties.
    5
    I. Did the Trial Court Err in Ruling on the Motion to dismiss the Second
    Amended Complaint while Plaintiff’s Motion for Leave to File Third
    Amended Complaint was pending;
    II. Did the Trial Court Err in dismissing the Second Amended Complaint’s
    Claims under the Real Estate Settlement Practices (sic) Act and/or Truth in
    Lending Act;
    III. Did the Trial Court Err in Prohibiting Plaintiff from asserting
    Additional Claims in his Third Amended Complaint.
    We will discuss these issues in the order presented.
    A. Issue I
    The first issue presented is whether the trial court erred in ruling on the Motion to
    Dismiss the Second Amended Complaint while Plaintiff’s Motion for Leave to File Third
    Amended Complaint was pending. Under Rule 15.02 Tenn. R. Civ. P., a party may
    amend its own pleadings once, as a matter of course, any time before a responsive
    pleading is served. Otherwise, a party may amend its pleadings only by written consent of
    the adverse party or by leave of the court, “and leave shall be freely given when justice so
    requires.”
    Mr. Wilfong filed his motion to be allowed to file a third amended complaint just
    four days before the hearing on Defendants’ motion to dismiss was scheduled to take
    place. Under Rule 6.04 Tenn. R. Civ. P., a written motion “shall be served not later than
    five (5) days before the time specified for the hearing . . .” Obviously, Mr. Wilfong’s
    motion was out of compliance with the Rules of Civil Procedure.
    The trial court does have the discretion to ignore Rule 6.04 in appropriate cases,
    and Mr. Wilfong’s tardiness would not have been sufficient, in and of itself, to serve as a
    basis for denying the motion to amend, in light of the language in Rule 15.02: “leave [to
    amend] shall be freely given when justice so requires.” We note, however, this case had
    been pending for over four years when Mr. Wilfong filed his motion, and he had been
    allowed to amend his complaint twice before.
    Further, CRK’s motion to dismiss had been pending for almost four months and
    all the parties had filed detailed memoranda in support of or in opposition to the motion.
    Because of the complexity of the case and the number of parties involved, numerous
    attorneys had prepared to appear at the motion hearing, including those who had to come
    6
    to court from out of state to represent the California defendants.
    If the trial court had granted Mr. Wilfong’s motion, the defendants would have had
    to request a continuance in order to study the newly amended complaint and to meet the
    allegations in it. See, Matus v. Metro. Gov't of Nashville, 
    128 S.W.3d 653
    , 656 (Tenn. Ct.
    App. 2003). Thus, if Mr. Wilfong’s late-filed motion had been granted, it would have
    caused great inconvenience and expense to the parties and resulted in more delay, while
    not substantially altering the rights of the parties relative to one another.
    The determination whether or not to grant a motion to amend a complaint lies
    within the sound discretion of the trial court. Burton v. Carroll County, 
    60 S.W.3d 821
    ,
    832 (Tenn. Ct. App. 2001); State Dept. of Human Services v. Hauck, 
    872 S.W.2d 916
    ,
    919 (Tenn. Ct. App. 1993); Merriman v. Smith, 
    599 S.W.2d 548
     (Tenn. Ct. App. 1979). A
    trial court's discretionary ruling on amendments to pleadings will not be disturbed on
    appeal unless there is a showing of abuse of discretion. Cumulus Broadcasting, Inc. v.
    Shim, 
    226 S.W.3d 366
    , 374 (Tenn. 2007); George v. Building Materials Corp., 
    44 S.W.3d 481
    , 486 (Tenn. 2001); Harris v. St. Mary's Medical Ctr., Inc., 
    726 S.W.2d 902
    , 904
    (Tenn. 1987).
    In light of the lateness of the filing of Mr. Wilfong’s motion, the trial court’s grant
    of two previous motions to amend, the amount of time the case and the motion to dismiss
    had been pending in the trial court, and the lack of any compelling explanation why a new
    version of the complaint was needed, we find the trial court did not abuse its discretion in
    declining to grant the motion to amend the pleading before ruling on defendants’ motion
    to dismiss.
    B. Issue II
    Mr. Wilfong’s second issue is whether the trial court erred in dismissing the claims
    he asserted in his Second Amended Complaint under the Real Estate Settlement Practices
    Act and/or Truth in Lending Act.5 Congress enacted the Real Estate Settlement Practices
    Act (RESPA), 
    12 U.S.C. § 2601
    , in 1974, to protect those who enter into “federally
    5
    The Truth in Lending Act (TILA), 
    15 U.S.C. § 1640
     et seq, is broader than RESPA, for it
    applies to credit transactions other than those involving federally related mortgage loans. However, an
    action under TILA, must be brought “within one year from the date of the occurrence of the violation.”
    
    15 U.S.C. § 1640
    (e); Russell v. Household Mortgage Servs., M2008-01703-COA-R3CV, 
    2012 WL 2054388
     (Tenn. Ct. App. June 7, 2012); Jones v. TransOhio Sav. Ass'n, 
    747 F.2d 1037
    , 1040 (6th Cir.
    1984). Because Mr. Wilfong’s potential rights and remedies under TILA were no greater than those
    available to him under RESPA, and because he himself did not suggest there were any meaningful
    distinctions between the two Acts, we will henceforth only refer to RESPA in our discussion.
    7
    related mortgage loans” from abusive practices by mortgage lenders.
    In his Second Amended Complaint, Mr. Wilfong asserted RESPA required lenders
    who intend to secure a mortgage note with the borrower’s personal residence to notify the
    borrower he has a right to rescind the transaction within three days of the execution of the
    note. He alleged Traders National Bank failed to notify him of his right to rescind when
    he entered into a mortgage Note and Deed of Trust with the bank on his primary
    residence on April 23, 2003.
    He further alleged the bank failed to notify him of his right to rescind when he
    entered into mortgage Notes and Deeds of Trust on two other properties on September 7,
    2005 and December 5, 2005. Although neither of those properties was his primary
    residence, Mr. Wilfong contended a subsequent cross-collateralization of the three notes
    brought them within RESPA’s ambit, and he asked the court for a declaratory judgment
    finding he was entitled to rescind the three notes and for other remedies available under
    RESPA and TILA.
    Mr. Wilfong asserted other violations of RESPA as well. Among the many
    provisions of the current version of the Act as effective January 16, 2009, is a
    requirement lenders, who assign or sell a mortgage loan or who transfer the loan
    servicing, notify borrowers of such assignment, sale or transfer no less than fifteen days
    before the effective date of the transaction. 
    12 U.S.C. § 2605
    (b). Mr. Wilfong alleged
    CRK purchased the mortgage notes from Traders National Bank on July 18, 2008,
    without giving him the required notification, and it subsequently cross-collateralized the
    three loans in order to begin wrongful foreclosure proceedings against him.
    The trial court dismissed Mr. Wilfong’s RESPA claims because of the passing of
    the statute of limitations. 
    12 U.S.C. § 2614
     requires a party who brings suit for violation
    of the disclosure requirements of 
    12 U.S.C. § 2605
     to do so within three years of the date
    of the violation. The court reasoned the right of rescission only applied to the 2003
    mortgage on Mr. Wilfong’s primary residence, and not to the mortgages on his two other
    properties, action on which would be barred in any case because of the statute of
    limitations. The court also held there could be no right of rescission related to the 2008
    purchase of the notes by CRK, because Mr. Wilfong was not a party to the 2008
    transaction.
    The court did not directly address the question of the failure of Traders National
    Bank to give Mr. Wilfong the statutorily required notice CRK had purchased the
    mortgage notes, but simply dismissed all the RESPA claims against all the parties. We
    note, however, Traders National Bank was not added as party until March 17, 2012, more
    8
    than three years after CRK purchased the notes.
    Mr. Wilfong acknowledges more than three years had passed between the date of
    the above transactions and his assertion of RESPA claims against the bank, but he argues
    the trial court should have applied the principal of equitable tolling to extend the statute
    of limitations. In the context of a defense predicated on a statute of limitations, the
    doctrine of equitable estoppel tolls the running of the statute of limitations when the
    defendant has misled the plaintiff into failing to file a lawsuit within the statutory
    limitations period.6 The rationale for equitable tolling was articulated by the United
    States Supreme Court as long ago as the Nineteenth Century:
    [Statutes of limitation] were enacted to prevent frauds; to prevent parties
    from asserting rights after the lapse of time had destroyed or impaired the
    evidence which would show that such rights never existed, or had been
    satisfied, transferred, or extinguished, if they ever did exist. To hold that by
    concealing a fraud, or by committing a fraud in a manner that it concealed
    itself until such time as the party committing the fraud could plead the
    statute of limitations to protect it, is to make the law which was designed to
    prevent fraud the means by which it is made successful and secure.
    Bailey v. Glover, supra, 88 U.S. (21 Wall.) 342, 349 (1874).
    Conversely, too liberal an application of equitable tolling would frustrate the
    legitimate purposes of statutes of limitations. Thus, “[e]quitable tolling is a remedy that
    must be used sparingly, that is, in extreme cases where failure to invoke the principles of
    equity would lead to unacceptably unjust outcomes.” Whitehead v. State, 
    402 S.W.3d 615
    ,
    626 (Tenn. 2013)(citing Downs v. McNeil, 
    520 F.3d 1311
    , 1318 (11th Cir. 2008)).
    The Sixth Circuit Court of Appeals has defined the elements required to establish
    equitable tolling by the doctrine of fraudulent concealment as follows: (1) defendants
    must have concealed the conduct constituting the cause of action; (2) defendants'
    concealment must have prevented the plaintiffs from discovering the cause of action
    within the limitations period; and (3) until discovery, the plaintiffs must have exercised
    due diligence in trying to find out about the cause of action. Egerer v. Woodland Realty,
    6
    Unlike other state courts and the federal courts, our Tennessee courts have declined to recognize
    the doctrine of equitable tolling in civil cases. Redwing v. Catholic Bishop for Diocese of Memphis, 
    363 S.W.3d 436
    , 460 (Tenn. 2012) (citing Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145 n. 2; Norton v.
    Everhart, 
    895 S.W.2d 317
    , 321 (Tenn. 1995)). Since, however, RESPA is a federal statute, we are not
    prevented by Tennessee law from considering the equitable tolling defense.
    9
    Inc., 
    556 F.3d 415
    , 422 (6th Cir. 2009).
    Mr. Wilfong is an experienced businessman who was already aware CRK was an
    untrustworthy partner as early as 2008 when he filed his first complaint. He does not
    allege he took any steps to ascertain the status of the loan against the property which was
    the subject of the contract at the heart of the complaint. Further, Mr. Wilfong did not
    explain exactly how the alleged failure to disclose the transfer of the three notes injured
    him. In short, we do not believe his RESPA claim falls within the class of extreme cases
    theat would justify the use of the remedy of equitable tolling. We therefore conclude the
    trial court was correct to dismiss all of Mr. Wilfong’s RESPA claims. Of course, our
    conclusion does not prevent Mr. Wilfong from alleging CRK’s actions in regard to the
    notes were wrongful, or to use those allegations to support any of his remaining claims
    for which they may be relevant, such as his claims for wrongful foreclosure, fraud, and
    civil conspiracy.
    C. Issue III
    The third issue Mr. Wilfong recited in his brief was whether the trial court erred in
    prohibiting him from asserting additional claims in his third amended complaint.
    However, Mr. Wilfong did include additional claims in his third amended complaint, and
    he acknowledged doing so during oral argument. Further, there is nothing in the record to
    suggest Mr. Wilfong could not amend his complaint again if further discovery discloses
    the existence of new claims and if the trial court grants his motion amend. Thus, Mr.
    Wilfong’s appeal of this issue is moot.
    V.
    The order of the trial court is affirmed. We remand this case to the Chancery
    Court of Wilson County for any further proceedings necessary, including a determination
    of Mr. Wilfong’s unadjudicated claims. Tax the costs on appeal to the appellant, Jay
    Wilfong.
    _________________________________
    DON R. ASH, SR. JUDGE
    10