author: CHARLES D. SUSANO, JR., J„

text:
    Marshall Toney NAVE, et al. v. Phyllis Grindstaff NAVE.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Oct. 25, 2004 Session.
    March 29, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 17, 2005.

      David S. Haynes, Bristol, Tennessee, for the appellant, Phyllis Grindstaff Nave.
    Arthur M. Fowler, III, Johnson City, Tennessee, for the appellee, Marshall To-ney Nave, filed on his behalf by Terri Nave King, Conservator.
   OPINION

CHARLES D. SUSANO, JR., J„

delivered the opinion of the court,

in which D. MICHAEL SWINEY and SHARON G. LEE, JJ., joined.

In this annulment action, Terri Nave King (“the Conservator”) filed a petition to annul the marriage of her ward — her father, Marshall Toney Nave (“Husband”)— to Phyllis Grindstaff Nave (“Wife”), on the ground that Husband was mentally incapable of entering into a marriage contract at the time of the wedding ceremony. After a two-day trial, the court below took the case under advisement. Before the court rendered its decision, Husband died. Subsequently, the court entered an order, finding that Husband’s mental incapacity was a proper ground for annulling his marriage to Wife; the order was entered nunc pro tunc to the date of the final day of the trial, which had taken place some three months prior to Husband’s death. Wife appeals, arguing, inter alia, that the Conservator lacked the authority to file an annulment petition on Husband’s behalf; that the trial court erred in entering its order nunc pro tunc; that the Conservator is judicially estopped from filing an action for annulment; and that the evidence preponderates against the trial court’s finding of mental incapacity. We affirm.

I.

Husband suffered a stroke in 1988, causing, according to his physician, “significant damage to a big part of the right side of his brain.” The stroke severely affected Husband’s mental and physical condition. While Husband could recall some past events, he had no short-term memory. He lost some control over his left arm and hand; he dragged his left leg; and he lost the ability to speak clearly. Physical therapy did little to improve his condition. Husband’s physician stated that, following his 1988 stroke, he suffered several “mini-strokes.”

In January, 1996, Husband’s first wife died. Following her death, Husband’s condition worsened. Shortly after losing his wife, Husband moved in with the Conservator, as he had lost the ability to dress and feed himself, and he was no longer able to control his bowels or bladder.

Husband began “seeing” Wife in December, 1996, after running into her at a Christmas function. The two had known each other for over 30 years, since Wife was 14 or 15 years old; as of Christmas, 1996, Husband was 68 and Wife was 51.

Sometime in late 1997, Husband’s vehicle was confiscated by the Tennessee Department of Safety. Since Husband was no longer able to drive, the Conservator hired Wife to act as Husband’s chauffeur. During 1998, Husband began spending the night at Wife’s house, and the two later began living together, though Husband would return to the Conservator’s home for days or weeks at a time when Husband and Wife had disagreements.

In the summer of 1998, Husband’s physician diagnosed Husband with dementia related to his many strokes. Husband could not follow simple commands, such as “show your teeth” or “touch your nose.” A few months later, the physician noted that Husband had suffered damage to both sides of his brain, which, according to the physician, reduced Husband to mere “rudimentary functioning.” As of March, 1999, Husband could not tell his physician the correct day of the week, the month, or the current year.

Husband’s condition continued to deteriorate over the next few months, to the point that his physician stated that his “vocabulary consisted only of a few words.” In November, 1999, the physician executed a sworn Medical Examination Report in compliance with the requirements of Tenn.Code Ann. § 34-S-105(c) (2001), in which he recommended that certain rights of Husband be transferred to a conservator. On December 9, 1999, the Conservator filed a petition seeking to become her father’s conservator. The Conservator had previously informed Wife that she intended to file the petition; Wife expressed to the Conservator her displeasure with this decision. On December 13, 1999 — -just four days after the petition was filed — Husband and Wife were married at the Carter County Courthouse, in the presence of Husband’s adopted son, Beau Nave. The Conservator was not present at the wedding and was unaware that the parties intended to wed. The County Executive, who performed the marriage ceremony, thought Husband’s mental state was good at the time of the wedding, though he admitted at trial that Husband’s signature on the marriage license did not appear to be Husband’s name. The County Executive further testified that he found it odd that Husband spoke of his deceased wife just prior to the ceremony.

Wife’s characterization of Husband’s condition is in sharp contrast to that of the Conservator and Husband’s physician. Wife contends that Husband’s physical and mental condition on the day of their wedding was good, that Husband was upset that the Conservator had filed her petition, and that Husband had told the Conservator that he was going to marry Wife. The Conservator, however, denies that Husband told her about the marriage. Instead, the Conservator contends that, when she confronted him about marrying Wife, Husband responded, “Hell no, I did not marry [Wife].” Wife further asserts that Husband ratified the marriage by engaging in sexual intercourse with her on their wedding night and three or four times a week thereafter. According to Wife, the couple last had intercourse in May, 2001. In June, 2001, Husband moved back into the Conservator’s home, where he remained until September, 2003, at which time he was admitted to a nursing home.

On September 25, 2000, some nine months after the marriage of Husband and Wife, the trial court granted the Conservator’s petition. The court’s order transferred the following rights of the Husband to the Conservator:

The right to dispose of property;
The right to execute instruments;
The right to make purchases;
The right to enter into contractual relationships;
The right to give or refuse consent to medical and mental examinations and treatment or hospitalization;
The right to manage the property of [Husband], including the right to make investment decisions concerning said property and the right to make decisions as to the management of the assets, income or expenses of [Husband];
The right to fully supervise and assist the person of [Husband];
The right to make decisions as to whether [Husband] should reside in a nursing home or in an assisted living situation and where he should reside; and
The right to do any other act of legal significance which the Court, at any time in the future, might deem necessary or advisable.

(Lettering in original omitted). On October 22, 2002, the Conservator filed in the trial court a petition to annul the marriage of Husband and Wife. Due to Husband’s declining health, the Conservator filed a motion for an expedited trial, which motion was granted. The annulment petition was heard on October 29 and 30, 2003. At the conclusion of the trial, the court took the case under advisement. Three months later, on January 29, 2004, Husband died. The following day, the trial court entered an order annulling the marriage of Husband and Wife, in which the court stated the following:

This cause has been under advisement by the Court for an extended period of time, due to a variety of circumstances. The Court finds that [Husband] did not have the capacity to consent to marriage, nor did he ratify the marriage by his post-nuptial conduct.

Following the entry of this order, Wife filed a motion to alter or amend the trial court’s judgment, contending that the annulment petition abated upon Husband’s death. The Conservator filed a motion seeking to add nunc pro tunc to the court’s order.

On March 18, 2004, the trial court filed its memorandum opinion, in which it detailed its findings of fact and conclusions of law with respect to the judgment annulling the marriage. The next day, the court entered an order in which it stated as follows:

The legal issues that have resulted because the Court did not enter its Order (entered 1/30/04) before [Husband’s] death (1/29/04) were the singular product of this Court. Neither the parties, nor their counsel, contributed in any way to the Court’s delay in the entry of its Order. The Court deeply and personally regrets that the time-consuming process of reaching a decision in this cause (as well as other work the Court was performing, in addition to personal matters that demanded this writer’s attention) would subvert the rendering of justice in this cause. A gross miscarriage of justice would occur if the Court’s lack of timeliness caused its Order entered January 30, 2004 to be declared “null and void”, as [Wife] contends.
It is clear that true injustice would be done if the Court granted [Wife’s] motions. [Wife’s] motions are denied. [The Conservator’s] motion is granted.
It is equally clear that truth, justice, and equity demand that the Court’s Orders of January 30, 2004 and March 18, 2004 be entered nunc pro tunc, effective October 30, 2003 [the last day of the hearing].
IT IS SO ORDERED.

(Capitalization in original). From this order, Wife appeals.

II.

As this is a non-jury case, our review is de novo upon the record of the proceedings below; but the record comes to us with a presumption of correctness as to the trial court’s factual determinations that we must honor unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

III.

Wife raises several issues for our consideration:

1. Did the trial court err in denying Wife’s motion to dismiss the annulment petition on the basis that the Conservator lacked the authority to file and maintain the action?
2. Did the trial court err in denying Wife’s motion to dismiss the annulment petition on the basis that the Conservator did not comply with the statute requiring verification of the complaint?
3. Did the trial court err in entering the annulment order nunc pro tunc?
4. Did the annulment action abate at the moment of Husband’s death, which occurred while the trial court had the case under advisement?
5. Does the doctrine of judicial estop-pel preclude the Conservator from pursuing the annulment petition, as she had previously filed a complaint for divorce on behalf of Husband?
6. Did the conservatorship terminate upon the death of Husband, thereby depriving the Conservator of standing to continue to pursue the annulment action?
7. Does the evidence preponderate against the trial court’s findings of fact and conclusions of law, which were the basis for the order annulling the marriage?

We will address each of these issues in turn.

IV.

A.

Wife first contends that the trial court erred in denying her motion to dismiss the annulment petition. She argues that the Conservator had no authority to file and maintain an action for annulment. In support of her argument, Wife relies upon TenmCode Ann. § 34-3-107(2) (2001), which provides that an order appointing a conservator must enumerate those powers which are being transferred from the ward to the conservator, and that any power not specifically transferred remains with the ward. Because, so the argument goes, the order granting the Conservator’s petition did not specifically vest her with the authority to file an annulment action on behalf of Husband, the Conservator had no authority to do so.

While the list of rights transferred to the Conservator does not expressly include the right to file suit, or, more specifically, the right to bring an annulment action, the order does give the Conservator the authority to “do any other act of legal significance which the [trial court], at any time in the future, might deem necessary or advisable.” We hold that this “catch-all” provision includes the filing and maintaining of an annulment action, as such an action is clearly an “act of legal significance.” Further, since the trial court allowed the Conservator to proceed with the petition and subsequently granted it, that court clearly believed it to be “necessary [and] advisable.” Accordingly, we find that the order designating Ms. King as conservator of Husband vested her with the right to file and maintain the petition for annulment.

In further support of her argument, Wife attempts to rely upon the case of In re Buda, 252 B.R. 125 (Bankr.E.D.Tenn.2000). In that case, the bankruptcy court held that co-conservators could not file a petition in bankruptcy for their ward because the order of appointment did not “transfer ... authority to file a petition in bankruptcy.” Id. at 133. We find that the holding in In re Buda is not implicated by the facts of the instant case. In the bankruptcy case, the order of appointment did not contain a provision similar to the “right to do any other act of legal significance” provision found in the instant case. For this reason, we do not find In re Buda to be persuasive authority with respect to the facts of this case.

B.

Next, Wife argues that the trial court erred in denying her motion to dismiss on her asserted basis that the Conservator did not comply with Tenn.Code Ann. § 36-4-107(a) (2001), which provides that a petition for divorce, unless brought on the ground of irreconcilable differences, must be verified by an affidavit that contains an oath affirming the veracity of the facts stated in the petition. We find that Wife cannot rely upon this statute as a basis for error. Wife’s argument on this issue is premised upon the fact that § 36-4-107 is contained within chapter 4 of title 36, which chapter is entitled “Divorce and Annulment.” We construe Wife’s argument to be that any statute contained within this chapter is applicable to both divorce and annulment. Tenn.Code Ann. § 1-3-109 (2003), however, provides that section headings in the code “shall not be construed as part of the law.” There is nothing in § 36-4-107 indicating that it is applicable to petitions for annulment. Moreover, statutes must be considered “in pari materia, not in a vacuum.” Cohen v. Cohen, 937 S.W.2d 823, 827 (Tenn.1996). When § 36-4-107 is read in conjunction with § 36-4-106 (Supp.2004), it is clear that the “petition” referred to in the former statute relates only to a petition for divorce. Accordingly, we find this issue to be without merit.

C.

Wife next asserts that the trial court erred in entering the order granting the annulment petition nunc pro tunc. We disagree.

This court, in In re Estate of Lucas, 844 S.W.2d 627, 629 (Tenn.Ct.App.1992), noted the general rule in Tennessee that “a judgment rendered after the death of a party is void.” However, the court went on to state an exception to this rule:

Where a trial or hearing has already been held, and the case is under advisement when [the party] dies, judgment may be entered nunc pro tunc, or as of the preceding term. See 46 Am.Jur.2d Judgments § 101; McLean v. State, 55 Tenn. 22 (1873). In McLean the court said: ‘When the act[] was delayed for the convenience of the court, [it] [would] always take care that no party should suffer by such delay.” [Id.] at [288].

Id. at 629-30.

When the court entered its order, it clearly stated that any delay in the entry of the order was not caused by any fault on the part of the parties; rather, the court put the onus of the delay upon itself, citing its workload and personal matters. The trial court was certainly concerned that “no party should suffer by [the] delay,” see McLean, 55 Tenn. at 288, stating that “[a] gross miscarriage of justice would occur if the Court’s lack of timeliness caused its Order entered January 30, 2004 to be declared ‘null and void’, as [Wife] contends.” Under the exception pronounced in Estate of Lucas, the trial court acted well within its authority when it entered the judgment nunc pro tunc to October 30, 2003. We find no error in the court’s decision to enter its order nunc pro tunc.

D.

Wife contends that the annulment action abated upon the death of Husband, since the court had the case under advisement at that time and no final judgment had been entered. In light of our previous holding that the trial court properly entered the final judgment nunc pro tunc to October 30, 2003, this issue is rendered moot, as the final judgment was effectively entered prior to Husband’s death on January 29, 2004.

E.

Next, Wife argues that the doctrine of judicial estoppel precludes the Conservator from pursuing the annulment petition, as the Conservator had previously filed a complaint for divorce on behalf of Husband. Wife contends that, by initially filing a complaint for divorce, the Conservator took a position inconsistent with the position taken in her later-filed petition for annulment, and that the law of judicial estoppel dictates that the annulment petition must be dismissed on that ground. We disagree.

Judicial estoppel is an equitable doctrine, designed to prevent a party from “gaining an unfair advantage” by making inconsistent statements on the same issue in different lawsuits. Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn.1999) (quoting Carvell v. Bottoms, 900 S.W.2d 23, 30 (Tenn.1995)). Judicial estoppel arises when a person makes a sworn statement in a judicial proceeding and then contradicts the statement in a subsequent proceeding. Decatur County Bank v. Duck, 969 S.W.2d 393, 397 (Tenn.Ct.App.1997). However, any statement “short of a willfully false statement of fact, in the sense of conscious and deliberate perjury, is insufficient to give rise to” judicial estoppel. State v. Brown, 937 S.W.2d 934, 936 (Tenn.Ct.App.1996) (citation omitted).

In the instant case, the Conservator, on April 4, 2003, filed a complaint for divorce on behalf of Husband against Wife. In her complaint, the Conservator alleged that Wife was guilty of inappropriate marital conduct, or, in the alternative, irreconcilable differences. A few months later, before any discovery was taken in the case, the Conservator voluntarily dismissed the complaint. On October 22, 2002, the Conservator filed the petition to annul Husband’s marriage to Wife, alleging that the marriage was voidable as Husband was mentally incapable of entering into such a marriage contract.

We hold there is no basis for the application of the doctrine of judicial estoppel in this case. In the complaint for divorce, the Conservator made no “willfully false statements of fact.” See id. Indeed, the Conservator “alleged facts in her [divorce] complaint which, if proven, would have entitled [Husband] to [a divorce].” See Woods v. Woods, 638 S.W.2d 403, 406 (Tenn.Ct.App.1982). The Conservator did nothing to warrant the invoking of the defense of judicial estoppel.

F.

Wife next asserts that the conservator-ship terminated upon Husband’s death, thereby depriving the Conservator of standing to continue to pursue the annulment action.

Wife did not raise this issue in the trial court. The law is well-established that issues not raised below cannot be raised for the first time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991). However, assuming, purely for the sake of argument, that the issue was properly before the trial court, we have previously held that the trial court’s order annulling the marriage was effective as of October 30, 2003, due to the nunc pro tunc order entered on March 19, 2004. Since the annulment was effective before Husband’s death, his demise is of no consequence with respect to the issue of the Conservator’s standing.

G.

Finally, Wife contends that the evidence preponderates against the trial court’s finding that Husband was mentally incapable of entering into a marriage contract. We disagree.

In its memorandum opinion and order, the trial court made the following findings of fact and conclusions of law:

At the time of the marriage ceremony, [Husband] suffered such mental defectiveness that he did not understand the marriage contract; therefore, he did not give his free and intelligent consent to the contract. At the time of the marriage, [Husband] did not have the mental capacity to understand the special nature of a marriage contract, nor did he understand the rights, duties, and obligations which the marriage contract creates.
[Husband] never regained his competency; therefore he was incapable of ratifying the marriage. There is abundant clear and convincing evidence that, prior to the marriage ceremony, [Husband] was mentally incapable of consenting to or understanding the marriage contract. The various mental maladies and incapacitating conditions described by [Husband’s physician] existed on the date of the marriage contract. [Husband’s physician] was the only expert to testify as to [Husband’s] mental and physical condition. [Wife] did not rebut [Husband’s physician’s] testimony. The Court believes [Husband’s physician’s] testimony. [Husband’s physician] opined three (3) months before the marriage that [Husband] was incompetent to contract. Just minutes before the [County Executive] conducted the ceremony, [Husband] signed his name to the “Certificate of Marriage” as “Cary M. 7 Nc Nave”. Exhibit 3. Just moments before the marriage, [Husband] did not know his name, nor was he able to sign his name. [Husband] did not ratify the marriage by sexual intercourse with [Wife] because he remained incompetent and “[] a lucid moment [for Husband] just really would not happen”. [Wife] has failed to prove, by a preponderance of the evidence, that [Husband] ratified the marriage.
Conclusion
[Husband] was incompetent to enter into a marriage contract, did not understand the rights, duties, and responsibilities of marriage at the time of the marriage contract, nor did he subsequently ratify the marriage during a lucid moment. IT IS, THEREFORE, ORDERED that the marriage of [Husband] and [Wife] is annulled, ab initio.

(Underlining and capitalization in original).

The evidence in the record overwhelmingly supports the trial court’s findings with respect to Husband’s mental incapacity to enter into a marriage contract. Wife introduced no expert proof to rebut the testimony of Husband’s physician. Moreover, while Husband’s adopted son, Beau Nave, attempted to convince the trial court that Husband’s mental and physical condition was good at the time of the marriage, the trial court specifically found that “[Wife’s] credibility is not good and Beau Nave’s credibility is poor.” As we have said many times, the trier of fact is in the best position to assess the credibility of witnesses; accordingly, such determinations are entitled to great weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.Ct.App.1995); Bowman v. Bowman, 886 S.W.2d 568, 567 (Tenn.Ct.App.1991).

We hold that the evidence does not preponderate against the trial court’s findings of fact supporting its conclusion that Husband was mentally incapable of contracting to marry. Accordingly, we affirm the trial court’s findings and holdings in toto.

V.

The judgment of the chancery court is affirmed. This case is remanded for the enforcement of the trial court’s judgment and for the collection of costs assessed below, all pursuant to applicable law. Costs on appeal are taxed to the appellant, Phyllis Grindstaff Nave.

      . In her brief before this court, Wife references Tenn.Code Ann. § 34-13-107. However, Chapter 13, entitled "Conservatorship Generally,” was transferred to Chapter 3 of Title 34 in 2001.

      . In her brief, Wife alludes to the doctrine of equitable estoppel. However, our review of her arguments in the brief, as well as the allegations in her pleadings before the trial court with respect to her estoppel argument, persuades us that the sole basis of Wife’s argument with respect to estoppel is the Conservator's alleged inconsistent positions in filing a complaint for divorce and a subsequent petition for annulment. Call it what she will, this is nothing more than an argument on judicial estoppel; equitable estoppel is simply not implicated in any of Wife’s filings in the trial court. See Tamco Supply v. Pollard, 37 S.W.3d 905, 909 (Tenn.Ct.App.2000).


source: Caselaw Access Project

author: D. MICHAEL SWINEY, J.,

license: Public Domain

text:
    Denise WASSOM v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Dec. 6, 2004 Session.
    Feb. 24, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 10, 2005.

      George Todd East, Kingsport, Tennessee, for the Appellant Denise Wassom.
    Leslie T. Ridings, Kingsport, Tennessee, for the Appellee State Farm Mutual Automobile Insurance Company.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., and SHARON G. LEE, JJ., joined.

Denise Wassom (“Plaintiff’) loaned her car to her ex-boyfriend who then had a single-car accident while making a beer run. Plaintiffs vehicle was a total loss. Fearing that her ex-boyfriend might be arrested for DUI, Plaintiff reported to the police that her car had been stolen. Plaintiffs vehicle was insured through State Farm Mutual Automobile Insurance Company (“State Farm”). Plaintiff also reported to State Farm that her car had been stolen. Approximately two weeks into State Farm’s investigation, an adjustor for State Farm interviewed the witnesses whom Plaintiff claimed to have been with at the time her vehicle was stolen. Immediately after these interviews, Plaintiff “came clean” and told State Farm the truth. State Farm denied Plaintiffs claim and Plaintiff filed suit claiming State Farm was in breach of contract. State Farm filed a motion for summary judgment claiming the undisputed material facts demonstrated that Plaintiff had made material misrepresentations with the intent to deceive. The Trial Court granted State Farm’s motion for summary judgment, and Plaintiff appeals. We affirm.

Background

Plaintiff was insured through an automobile insurance policy issued by State Farm. After Plaintiffs vehicle was totaled in a single-car accident and State Farm refused to pay her claim, Plaintiff filed this suit claiming State Farm had breached the insurance contract. The issues on appeal concern whether Plaintiffs admitted post-loss misrepresentations were such that State Farm could refuse to pay Plaintiffs claim.

The underlying facts in this case are not in dispute. On the evening of February 27, 2002, Plaintiff was at her house with her ex-boyfriend, Michael Perry (“Perry”). Kenny Stanley and Nicole Stanley were also at her house. Plaintiff loaned Perry her car keys, and Perry and Kenny Stanley left to go buy some beer. Perry had a single-car accident while on the beer run. According to Plaintiff, when Perry and Stanley returned to her house “[w]e all went inside and they come up with the story, which I went along with it, of calling the police and reporting it stolen.” Plaintiff testified in her deposition that she went along with the “story” because she was afraid Perry would get into trouble because “[h]e had mentioned maybe getting a DUI.” Perry and the Stanleys left Plaintiffs residence shortly after Plaintiff called the police and reported her vehicle stolen.

Plaintiff also reported to Mike Cappell (“Cappell”), an insurance adjustor for State Farm, that her car had been stolen. Plaintiff told Cappell that on the evening in question, she left her house and was with Perry and the Stanleys. Her story to Cappell was that while she was away from her house, someone broke into the house, took only her car keys, and then stole her car. Cappell specifically asked Plaintiff if she had loaned her car to a friend and she responded that she had not. Plaintiff also denied knowing the identity of who was driving her car when it was wrecked.

Based on Plaintiffs report that her car had been stolen, State Farm provided Plaintiff with an “Affidavit of Vehicle Theft,” which she completed and returned to State Farm. The affidavit was signed by Plaintiff under oath and notarized. In the affidavit Plaintiff stuck to her “story” that the car had been stolen, stating that the last time she saw her vehicle was when she left her house at 7:30 p.m. on February 27th. Plaintiff added that she was with Perry and the Stanleys until she returned home around 2:30 a.m., at which time she discovered her car keys and vehicle were gone.

Don Beedle (“Beedle”) is an adjuster with State Farm who handles fire and theft claims. Because Plaintiffs claim involved a theft, the claim was transferred from Cappell to Beedle. Beedle interviewed Plaintiff about her claim, and she told him the same version of events that she had told Cappell. Beedle also informed Plaintiff that he needed to interview Perry and the Stanleys. Unfortunately, neither Perry nor the Stanleys had telephones so Beedle mailed them letters saying that he needed to meet with them to discuss Plaintiffs claim. Beedle never received any response and re-sent the letters via certified mail. After a couple of days had passed and Beedle had not received the return receipts for the certified letters, Plaintiff told Beedle that Perry and the Stanleys were not going to pick up the certified letters. Then one morning, “[o]ut of the blue” Beedle received a telephone call at 8:30 a.m. from Nicole Stanley stating she, her husband, and Perry “we’re ready to talk to you now.” They agreed to meet with Beedle that morning at 9:00 a.m. According to Beedle:

About 10 minutes later Ms. Wassom called me and said, “Don, I’ve been trying to get ahold ... of the Stanleys and this Perry fellow. They’re just not going to cooperate. They don’t want to get involved and they’re not going to work with you and they’re not going to help me on this.” ... I said, “Denise, would you believe that I just hung up the phone with Ms. Stanley and they are on their way out here right now and they will be here ... [in about] five to 10 minutes.” And there was a long pause and she went, “Oh, okay. All right. Good. Well, then never mind,” and hung up.
Five or 10 minutes passed and sure enough, they were standing out in the lobby, the Stanleys. Right on time.... And I sat down and interviewed them and I interviewed Perry. And as I was walking one of the two out because I did it individually, into my lobby, I saw Denise come in the front door. And I could tell something was going on.... I could just tell that those two women— they were giving each other some funny looks and I got a sense that something was not — not right here.
So I interviewed the Stanleys, interviewed Perry and dismissed them and gave them my card, shook their hand and sent them down the road. And Denise said, “I need to speak to you now. There’s something I’ve got to tell you.” And I — I just knew what was coming. And we went back to my conference room ... and she said, “Look, I misled you. I did not tell you the truth,” and then she proceeded to tell me what happened which was that she had given Michael Perry permission to drive her car, he’d wrecked it and he’d been drinking and they were trying to protect him from getting a DUI arrest and the rest kind of unfolded from there.

At her pre-trial deposition Plaintiff acknowledged affirmatively misrepresenting that her car had been stolen, that she had not loaned her car to a Mend, that she did not know who was driving the car when it was wrecked, etc. Plaintiff admitted she knew that she was under oath when she provided the false information in her affidavit. Plaintiff further acknowledged that the “Affidavit of Vehicle Theft” specifically stated that it was “a crime to knowingly provide false, incomplete, or misleading information to an insurance company for the purpose of defrauding the company. Penalties ... [include] imprisonment, fines, and denial of insurance benefits.” After reporting the vehicle stolen, Plaintiff also signed a document titled “Consent to Move and Examine Property,” when she still was claiming her vehicle had been stolen. This document also contained the above warning to the effect that it was a crime to provide false information to an insurance company, and even though Plaintiff read this warning, she nevertheless proceeded to sign the document.

Beedle testified in his deposition that Plaintiff’s reporting that the vehicle had been stolen affected the course of State Farm’s investigation. According to Bee-dle:

If Ms. Wassom would have presented the facts as they actually occurred, we would have interviewed Mr. Perry to confirm that. We would have seen if there were any specific injuries, if we had any additional exposures.... [W]e had the potential for property damage, liability. We had the exposure for bodily injury exposure and we had medical payments exposure if there was any injuries.
Normally when a vehicle’s rendered a total loss and flipped on its roof ... you’re probably going to have some injuries somewhere or potentially some— another vehicle’s been hit, some fixed property, mailbox, trees, fences. You just never know. So that would have been investigated ....

Beedle then added that because the loss was reported as a theft, “all that [potential increased exposure] ... was not there.” In other words, had the truth been reported, State Farm “would have been investigating the exposures for our potential liability issues for fixed property, medical issues, medical liability ... we stood a large — much larger increase of exposure there.” It is also worth noting that if the vehicle had been damaged after being stolen, State Farm would have had a. subrogation claim against the thief to the extent of any payments made by State Farm to Plaintiff.

Beedle further testified that State Farm provided Plaintiff with a rental car immediately after the accident. Beedle stated that, according to the policy, “[i]f the loss was submitted as a collision claim and the vehicle was rendered a total loss, the policy only gives you five additional days of rental loss after an offer to settle has been made.” Because Plaintiff changed her story during the investigation, she was provided with a rental car for a longer period of time because it took State Farm more time to complete its investigation and make a decision about the claim.

Plaintiffs insurance policy contains the following provision regarding false representations:

There is no coverage under this policy if you or any other person insured under this policy has made false statements with the intent to conceal or misrepresent any material fact or circumstances in connection with any claim under this policy.

Plaintiffs deductible was $250 for property damage to her vehicle resulting from a collision when her car was being driven by an insured driver. The policy defines an insured driver to include anyone operating Plaintiffs vehicle within the scope of her consent and, therefore, Perry was an insured driver. However, there was no applicable deductible if Plaintiffs vehicle was damaged after being stolen.

State Farm filed a motion for summary judgment claiming Plaintiff was not entitled to any proceeds from her insurance policy because of her intentional and material misrepresentations and her failure to cooperate in the investigation of the claim by not telling the truth. State Farm also claimed Plaintiffs misrepresentations lengthened the investigation and increased the expenses attendant thereto.

The Trial Court granted State Farm’s motion for summary judgment after concluding the material facts were not in dispute and reasonable minds could reach only one conclusion, which was that Plaintiff intended to deceive State Farm as to material facts regarding her loss. The Trial Court also held that it was not necessary for State Farm to show an increase in the risk of loss resulting from the misrepresentations.

Plaintiff appeals claiming the Trial Court erred when it granted State Farm’s motion for summary judgment because there were genuine issues of material fact regarding whether Plaintiff intended to deceive State Farm and whether the misrepresentations were material.

Discussion

In Blair v. West Town Mall, our Supreme Court recently reiterated the standards applicable when appellate courts are reviewing a motion for summary judgment. Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004). In Blair, the Court stated:

The standards governing an appellate court’s review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court’s judgment, and our task is confined to reviewing the record to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn.2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: 1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and 2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d at 88.
When the party seeking summary judgment makes a properly supported motion, the burden shifts to the non-moving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact.
To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party’s burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting Staples, 15 S.W.3d at 88-89).

Our Supreme Court also has provided instruction regarding assessing the evidence when dealing with a motion for summary judgment, stating:

The standards governing the assessment of evidence in the summary judgment context are also well established. Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000).

Before we discuss whether the Trial Court properly granted State Farm’s motion for summary judgment, we note that this case does not involve a misrepresentation alleged to have been made in an application for insurance. In cases involving misrepresentations in an application for insurance, the Tennessee Legislature has set forth specific instructions on what must be proven for such misrepresentations to be deemed material in order for coverage to be voided. Specifically, a misrepresentation in an application for insurance cannot be deemed material “unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter represented increased the risk of loss.” Tenn. Code Ann. § 56-7-103. This statute was passed originally in 1895 and there are numerous cases discussing its application.

The number of cases addressing post-loss misrepresentations are not as plentiful. The following general discussion is contained in 46A C.J.S. Insurance § 1249 (1998 & Supp.2004):

An insurance company has a compelling interest in and a right to accuracy in the proof of loss forms; and in some policies there is a provision that any fraud or false swearing by insured relating to the loss or in the proofs of loss forfeits any right of recovery by him, a usual provision being that the policy shall be void in case of any fraud or false swearing by insured touching any matter relating to the insurance or the subject thereof, whether before or after a loss.
Generally speaking, false swearing consists in knowingly and intentionally stating on oath what is not true, or the statement on oath of a fact as true which the insured does not know to be true, and which he has no reasonable ground for believing to be true. To avoid the policy, the false statements must have been made intentionally and willfully; and under some authority, although not all, they must have been made with an intent to deceive or defraud.
To establish the defense of misrepresentation of proofs of loss, an insurance company must demonstrate that representations made by insured were relevant, material and intentionally false. However, a misrepresentation after loss need only be made with actual intent to deceive the insurance company and be related to the matter which is material. Under policy provisions voiding coverage for fraud or false swearing, concealment or misrepresentation, recovery will be denied to insured who has made deliberate material misstatements in a sworn proof of loss. Rights under a policy are not to be forfeited except for concealment or misrepresentation relative to the loss claimed.
An insurance company need not establish that it relied to its prejudice upon false or fraudulent statements in a proof of loss in order to establish a breach of contract and void the policy.
Generally, the issue of whether insured’s false statement to the insurance company was knowingly and intelligently made with knowledge of its falsity, and with intent to defraud, is a question of fact.... The materiality of false representations to an insurance company for recovery on a claim is a mixed question of law and fact which can be decided as a matter of law if reasonable minds could not differ.

46A C.J.S. Insurance § 1249, at pp. 77-79 (citations omitted). Accord 44 Am.Jur.2d Insurance § 1371 (1982 & Supp.2002) (Under policy provisions which provide that false swearing will relieve the insurer from liability, “false statements as to material matters willfully made by the insured in proofs of loss with the intention of deceiving the insurer will preclude any recovery on the policy by the insured; and conversely, to constitute fraud or false swearing under such a provision, there must be false statements willfully made with respect to a material matter and with the intention of thereby deceiving the insurer.... The motives prompting an insured to swear falsely are ... immaterial; and even though his purpose in so doing is not to cheat the insurer, but to accomplish some other end, the false statement avoids the policy.”) (citations omitted).

In Nix v. Sentry Ins., 666 S.W.2d 462 (Tenn.Ct.App.1983), the plaintiff suffered a fire loss and filed suit after the defendant insurance company refused to pay the loss. The issues at trial centered around whether the plaintiff had committed arson and whether the plaintiff had made material misrepresentations regarding what property actually was destroyed by the fire and its value. The trial court held that while the plaintiff had not committed arson, he had made material misrepresentations regarding the value of the property destroyed in the fire which relieved the defendant of any liability for the loss. Id. at 462. On appeal, this Court concluded that the evidence did not preponderate against the trial court’s conclusion that the plaintiff had not committed arson. However, we reversed the trial court’s conclusion that the plaintiff had made material misrepresentations. In so doing, we stated:

It should be noted that we are not here dealing with an alleged materially false statement made in an application for insurance. Such a statement would void the policy ab initio. Brewer v. Mid-West National Life Insurance Company of Tennessee, (1979 M.S. Tenn.App.) 605 S.W.2d 232. We are here dealing with allegedly false statements or false swearings made subsequent to the issuance of the policy and in connection with a loss. In Boston Marine Insurance Company v. Scales, (1899) 101 Tenn. at 629, 49 S.W. 743 the Tennessee Supreme Court had before it an insurance policy with similar provision as in this case. The insurer defended on the basis of an alleged false proof of loss as an avoidance of the policy. The Court held that in order to void the policy any false statements in a proof of loss must be willfully false in some material matter and made with intent to deceive.

Nix, 666 S.W.2d at 463-64 (emphasis added). The Nix Court then quoted the following from Boston Marine:

When the false swearing is in the application it forms the basis upon which the contract rests, and if fraud enters into it the policy would be voided even though the policy does not so provide. But after the loss occurs then voiding the policy is in the nature of a penalty or forfeiture; in other words, in such cases the holding is virtually that, although the insured has had a loss, and may be entitled to recover from it, yet, as he has been guilty of fraud in the proofs, he must have his policy vacated and set aside as a punishment for such fraud, or attempted fraud. In the latter case, as in all cases of forfeiture, a strict construction should be adopted, and the forfeiture not enforced except on the plainest grounds, if at all.

See Nix, 666 S.W.2d at 463-64; Boston Marine, 101 Tenn. 628, 49 S.W. at 746 (1899).

After affirming the trial court’s decision that the plaintiff had not committed arson, we held “that if rights are to be forfeited under the terms of this insurance policy, the concealment or misrepresentation made must be relative to the loss claimed.” Id. at 464. We then reviewed the evidence pertaining to the alleged misrepresentations regarding the value of items alleged to have been destroyed in the fire, and concluded that the evidence did not support a conclusion that the plaintiff had made any material misrepresentations on these matters. Id. at 464-65. See also Matthews v. Auto Owners Mutual Ins. Co., 680 F.Supp. 287, 289 (M.D.Tenn.1988)(“Under Tennessee law ... material misrepresentations made in a proof of loss statement do not void an insurance policy, unless evidence establishes, on the plainest grounds, that the misrepresentations were willfully and knowingly made with the intent to deceive or defraud the insurer.”).

The more recent case of Joyner v. Omaha Property and Casualty Ins. Co., No. 02A01-9301-CV-00021, 1993 WL 295049 1993 Tenn.App. Lexis 518 (Tenn.Ct.App. Aug. 4, 1993), no appl. perm appeal filed, involved a claim pursuant to an automobile insurance pohcy after the insured vehicle, a 1988 Pontiac Firebird, was stolen for a second time. The first time the vehicle was stolen the plaintiff reported the theft to the police. However, the plaintiff did not report the first theft to his insurance company because the vehicle was recovered the very next day. The vehicle was stolen again less than two months later. Joyner, 1993 WL 295049, at *1, 1993 Tenn. App. LEXIS 518, at *1. One of the issues on appeal was whether the plaintiffs alleged post-loss misrepresentations rendered the insurance coverage void. One of the alleged misrepresentations involved the plaintiff being asked if he had had any other cars stolen, and his response that he had not. The defendant insurance company claimed the plaintiff had materially misrepresented the first theft. However, the plaintiff claimed in an affidavit that he understood the question to mean whether any cars other than the 1988 Pontiac had been stolen. The other claimed misrepresentations centered around the plaintiff’s response on the claim form about damage incurred to the vehicle from the first theft. We noted that the claim form did not have a place for an explanation and the plaintiff had explained his response to the insur-anee company. Id. 1993 WL 295049, at *1, 1993 Tenn.App. LEXIS at * 7. The Joyner Court then reviewed the applicable law regarding post-loss misrepresentations, concluding that the prevailing law in this jurisdiction regarding post-loss misrepresentations was that the “false statements must be willfully false in some material matter and made with the intent to deceive.” Id. 1993 WL 295049, at *4-5, 1993 Tenn.App. LEXIS at *14-15. We then noted that intent to deceive was a question of fact and there were genuine issues of material fact regarding whether the plaintiff intended to deceive the insurance company. Accordingly, we reversed the trial court’s granting of summary judgment to the defendant.

Returning to the present case, there is no doubt that Plaintiff made several willful misrepresentations. Plaintiff claims summary judgment was not appropriate because genuine issues of material fact exist regarding whether she: (1) intended to deceive State Farm; and (2) whether the misrepresentations were material. As to the first issue, State Farm has the burden of proving that Plaintiff either intended to deceive or defraud the insurer. State Farm does not claim Plaintiffs intent was to defraud. Rather, State Farm asserts that the undisputed material facts demonstrate that Plaintiff intended to deceive State Farm.

In her brief, Plaintiff simply asserts that she had no intent to deceive State Farm because she was “merely attempting to protect the third party driver from perceived criminal prosecution.” We believe this argument misinterprets an intent to deceive versus an intent to defraud. The undisputed material facts demonstrate without question that Plaintiff intended to deceive State Farm about how the accident occurred. Plaintiff admitted in her deposition that she lied to State Farm over and over again and in fact lied under oath and continued this course of deception up until the time Beedle interviewed Plaintiffs alleged witnesses and her “story” fell apart. Since we are reviewing a grant of summary judgment, we must and do assume that Plaintiff is correct when she claims her motivation for making the misrepresentations was to protect Perry. Even so, this does not change the undeniable fact that she intended to deceive State Farm during the course of protecting Perry. We fail to see how Plaintiff can contend in any serious manner that she did not intend to deceive State Farm when she admittedly lied about her car being stolen, lied about whether she loaned the car to a Mend, lied about knowing who was driving the car when it was wrecked, submitted a sworn affidavit with false testimony, etc. This issue is without merit.

Plaintiffs primary argument on appeal involves the next issue, which is whether her admitted misrepresentations were material. Plaintiff argues that the misrepresentations were not material because State Farm was not prejudiced by the lies and because the damage to her car was a covered loss regardless of whether the car was stolen or being driven by Perry with her permission at the time of the accident. The Trial Court held that the misrepresentations were material and further held that State Farm was not required to show an increase in the risk of loss resulting from the misrepresentations.

As noted previously, when a misrepresentation is made in an application for insurance, coverage cannot be voided unless the insurance company proves the misrepresentation was “made with actual intent to deceive, or unless the matter represented increased the risk of loss.” TenmCode Ann. § 56-7-103 (emphasis added). Although we have explained that this statute does not apply to the present case, we assume the Trial Court was analogizing to this statute when it concluded State Farm did not have to establish an increased risk of loss. It is true under this statute that an insurance company would not have to establish an increased risk of loss if it has proven an intent to deceive. We believe when the Legislature used the phrase “increased the risk of loss” it intended to refer to the risk of loss associated with determining whether a risk is insurable and, therefore, would not apply to cases involving post-loss misrepresentations. To the extent the Trial Court meant that State Farm was not required to prove that it actually lost money as a result of the misrepresentation, we agree that is not a requirement under the applicable Tennessee law discussed previously in this Opinion. However, it certainly could be a relevant consideration in determining whether a misrepresentation was “material.”

When an insured suffers a loss, the first step is to report the loss to the insurance company. The first bit of important information the insurance company needs to know when it begins to process the claim is how the loss occurred. Here, Plaintiff intentionally misrepresented this important information. This misrepresentation is clearly “relative to the loss claimed.” Nix, 666 S.W.2d at 464. The nature of the misrepresentation, i.e. reporting the car stolen, directly impacted how State Farm investigated the claim. This can better be understood by examining the overall scenario State Farm was dealing with when Plaintiff was insisting that her car was stolen. Pursuant to this scenario, Plaintiffs insurance policy only would have covered damage to Plaintiffs vehicle. The policy would not have covered: (1) any personal injury to the driver/thief; (2) damage to any other vehicles or personal injury to their occupants; (3) personal injury to any pedestrians or bystanders; or (4) damage to any other type of property resulting from the accident, such as mailboxes or fences and the like. Plaintiffs vehicle was not involved in a minor fender-bender. The car was a total loss and it either flipped or rolled over and landed on its top. Due to the significant nature of the wreck, there was certainly more potential for personal injury, including injury to any passenger, or damage to other vehicles or property than would be the case if the car had been involved in a minor accident. State Farm was aware of the nature of the accident, but because it believed the car to have been stolen it did not investigate whether any type of non-covered damage or injury had taken place. Since there was no applicable deductible, State Farm was responsible for the full amount of the loss to Plaintiffs vehicle. The identity of the alleged thief also was important to State Farm because it would have the right to file a subrogation lawsuit in the future in an attempt to recover any money it ultimately paid to Plaintiff.

Once Plaintiff decided to come clean and tell State Farm what really happened, the overall scenario dramatically changed and, for the most part, the opposite became true. State Farm now was concerned with potential exposure for personal injuries, including possible injury to the passenger, and property damage resulting from the accident. There was a potential for serious personal injury claims given that the car had rolled over and landed on its top with two occupants in the vehicle. Unfortunately, by this time it was at least two weeks post-accident and critical investigation time was lost forever. Even assuming that the passenger in the vehicle, Kenny Stanley, has made no claim for any personal injuries, such a fact could not have been known with certainty at the time Plaintiff made her willful misrepresentations. In determining whether a misrepresentation was material, the misrepresentation must be viewed at the time it was made and not in hindsight. Here, State Farm had the serious potential liability for personal injuries to the passenger, but was delayed in its investigation along that line for two weeks because of Plaintiffs willful misrepresentations. In addition, State Farm no longer had a potential subrogation claim. Plaintiff now had a $250 deductible for any loss to her vehicle. The time it took State Farm to investigate Plaintiffs claim necessarily was lengthened once she came clean and, because of that, State Farm was obligated to provide her with a rental car for a longer period of time than would have been the case had Plaintiff told the truth from the beginning.

Based on the foregoing, we conclude that Plaintiffs willful misrepresentations indeed were material and this is so even though the damage to her vehicle would have been covered under the policy regardless of whether the car was stolen or being driven by Perry with Plaintiffs permission when the accident occurred. Although by reporting her car stolen Plaintiff would not have had to pay a $250 deductible, we need not and do not decide whether this fact, standing alone, would be sufficient to make her misrepresentations “material.” Finally, we note that our holding should not be read as meaning that a misrepresentation regarding how a loss occurred always will be deemed material. We simply conclude that the undisputed facts in this case establish that the Trial Court correctly characterized Plaintiffs willful misrepresentations as material and made with the intent to deceive. The Trial Court, therefore, properly granted State Farm’s motion for summary judgment.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. Costs on appeal are assessed against the Appellant, Denise Wassom, and her surety.

      . It is a Class D felony to “[i]nitiate a report or statement to a law enforcement officer concerning an offense or incident within the officer’s concern knowing that ... the offense or incident reported did not occur ... [or] the information relating to the offense reported is false....” See Tenn.Code Ann. §§ 39-16-502(a)(1) and (b)(1). A Class D felony is punishable with imprisonment of not less than two (2) years nor more than twelve (12) years. A fine not to exceed five thousand dollars ($5,000) may also be imposed. See Tenn.Code Ann. § 40-35-111(b)(4).

      . The tíme frames provided by the Stanleys and Perry did not corroborate Plaintiff’s version of events on the evening her car was stolen.

      . Tenn.Code Ann. § 39-14-133 provides that "[a]ny person who intentionally presents or causes to be presented a false or fraudulent claim, or any proof in support of such claim, for the payment of a loss, or other benefits, upon any contract of insurance coverage, or automobile comprehensive or collision insurance, or certificate of such insurance or prepares, makes or subscribes to a false or fraudulent account, certificate, affidavit or proof of loss, or other documents or writing, with intent that the same may be presented or used in support of such claim, is punished as in the case of theft.”

      . There is no proof in the record that Plaintiff misrepresented her car to be stolen in order to avoid having to pay the $250 deductible associated with a collision claim, or to otherwise cheat State Farm out of any money.


author: HERSCHEL PICKENS FRANKS, P.J.,

text:
    AUSTA LA VISTA, LLC and Take It Easy, LLC, and Boardwalk Property Owners Association v. MARINER’S POINTE INTERVAL OWNERS ASSOCIATION, INC., and Henry Phillips, individually.
    Court of Appeals of Tennessee, at Knoxville.
    Dec. 7, 2004 Session.
    March 17, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 17, 2005.

      Gary R. Patrick, Chattanooga, Tennessee, for appellant.
    M. Taylor Harris, Nashville, Tennessee, for appellee, Mariner’s Pointe Interval Owners Association, Inc.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which SHARON G. LEE, J., and WILLIAM H. INMAN, Sp. J., joined.

In this dispute, plaintiffs sought declaratory judgment as to use of their lake by defendant, payment of fees and injunctive relief. Defendant counter-claimed for a declaratory judgment as to its use of the lake, disputed any obligation to pay fees to the plaintiff, and sought monetary damages and attorney’s fees. The Trial Court held that plaintiffs’ owned the lake and the master deed provided for maintenance fee and membership fees, that defendant’s members were required to pay. But if the defendants’ members did not use the lake they would not be required to pay the fees. On appeal, we hold the Court correctly found .that the lake was an amenity and that a lake use fee was required to be paid to plaintiffs pursuant to the master deed and exhibits. But the Court erred in holding that defendant owners could choose not to use the lake and not- pay the fees. We otherwise affirm the Court’s rulings on the issues raised on appeal.

Plaintiffs’ action against Mariner’s Pointe Interval Owners Association, Inc., (MPIOA) asked injunctive relief, quiet title, declaratory judgment, and payment of fees. Plaintiffs alleged that they owned Lake Holiday, which bordered a 25 acre tract of property owned by MPIOA, as well as several hundred adjoining acres of property. They claim that their predecessor in title, Boardwalk, had owned plaintiffs’ and defendant’s properties, and a registered document titled “Declaration of Horizontal Property Regime and Master Deed” (“master deed”) on March 31, 1981," allowed the sale of time-share interests in property now owned by defendant!' Amendments to this document were filed over the ensuing years by Boardwalk and its successor, Lake Properties, Inc.

The Complaint alleged that MPIOA bought the 25 acre tract known as Mariner’s Pointe after it was seized by the IRS in 1993, and that MPIOA then filed a document which purported to be an amendment to the above-referenced document, which significantly changed relevant portions of the document, namely the right of Boardwalk or its successors to control the lake or receive fees from same. Plaintiffs averred that MPIOA was selling weekly time-shares on its property, but telling purchasers that they had the right to use the lake year round, and a declara-, tory judgment was sought to the effect that MPIOA had no right to use the lake, or if they did have a right to its use, it was only for those weeks which had been purchased as a time-share interest, and only after paying the appropriate fee.

Plaintiffs also sought an injunction preventing people from using the lake who had no right, sought clear title to the lake, and asked for damages for non-payment of fees for the use of the lake.

MPIOA Answered and filed a Counterclaim for Declaratory Judgments, Injunctions and Damages. It admitted that it was a “not-for-profit condominium association whose approximately 2,000 members own an equal share of Mariner’s Pointe Resort, consisting of 25.25 improved acres, an appurtenant easement for nonexclusive use of Lake Holiday, and buildings and other improvements extending into Lake Holiday which have been used continuously by Defendant since 1981.” Defendant averred that plaintiffs have no right to claim control of Lake Holiday, because the lake is an impoundment of the Obed River, is regulated by the Tennessee Wildlife Resources Agency (“TWRA”) and the City of Crossville, and Crossville has the right to take water from Lake Holiday by use of the dam. Defendant also asserted that the original Declaration of Horizontal Property Regime and Master Deed gave the condominium property owners “easements and rights appurtenant thereto” including the use of recreational amenities, such as the lake.

Defendant also averred that the marina building extended from defendant’s property into and over the lake, and was shown as an improvement to defendant’s tax parcel in the tax assessor’s office. It claimed that in addition there was a fishing pier, boat ramp, beach area, lakeside boardwalk, and boat slips, which it owned and which were attached to its land/buildings, and for which it maintained, operated, and paid utilities, taxes and insurance. Defendant claimed that it was a successor in interest to Boardwalk, and that it owned all “easements and rights appurtenant thereto, intended for use in connection with the Condominium”, which gave it the right to use the lake and to collect fees for the use from its members.

Defendant also raised the affirmative defense of estoppel, claiming its members had relied on representations made by plaintiffs’ predecessor, Lake Properties, Inc., wherein they were told that they had perpetual rights to use the lake and related recreational facilities. That plaintiffs had allowed defendant’s members to use the lake for 3½ years after plaintiffs’ purchased the property. It also raised the defense of res judicata based on a prior lawsuit between defendant and Lake Properties, Inc., and its Chapter 11 bankruptcy, as well as laches, unclean hands, and statutes of limitation.

Defendant asked the Court to declare that its members could use the lake, that its members did not have to pay fees to plaintiffs, and that plaintiffs be enjoined from trespassing on defendant’s property, and for monetary damages and attorneys fees. Ultimately, the Court conducted an evidentiary hearing in August of 2008. Following the hearing, the Court took the matter under advisement and delivered a bench ruling on November 21, 2008. The Court held that the lake was clearly an amenity, and that MPIOA admitted as much in its Answer. The Court found there was no dispute that Austa owned the lake, and that the master deed provided for a maintenance fee and a membership fee, and that the membership fee was for the use of amenities owned by Boardwalk. Further, the Court said the master deed stated that failure to pay a fee would preclude the owner from using the amenities, and that the public offering filed the same date as the master deed also said the membership fee was for the use of Boardwalk-owned amenities, and that the Purchaser/Seller Verification listed the lake as an amenity. The Court found that MPIOA relied on these documents in its Answer, and was judicially estopped from taking a contrary position. The Court also held that the master deed provided that all provisions were covenants running with the land and all unit owners and their assigns were bound by these covenants.

The Court said that while Boardwalk owned the development, all fees went to Boardwalk, and that LPI collected fees from interval owners in the form of a single maintenance fee. The Court found that after MPIOA sought to amend the master deed, it then asked the bankruptcy court to rule that res judicata would bar the plaintiffs’ claims, but the bankruptcy court refused. The Court noted that Aus-ta did not own the property when MPIOA went into bankruptcy, and Mary Lou Wi-bel, principal owner and manager of Austa, testified that she never knew that MPIOA had tried to amend the master deed. The Court found that no one gave MPIOA consent to amend the master deed.

The Court found that LPI sold to Austa in 1995, and that Austa then sought to charge interval owners a fee for the use of Austa’s amenities, and that other property owners paid such fees. The Court found that MPIOA charged a maintenance fee to the interval owners, and one owner testified that she thought the lake use fee was included. The Court found that MPIOA took those fees and used them to pay expenses for its property, and paid nothing to Austa, and that if the interval owners wished to use Austa’s lake, they had to pay a fee of $3.00 for their week, or $156.00 if they wanted to use it for the whole year. But if the interval owner did not wish to use the lake, they did not have to pay a fee.

The Court held that Austa or its successors could not raise these fees until they demonstrated that the cost of maintaining the lake exceeded the fees collected, and that res judicata did not arise from the previous State court proceedings. Also there had been no waiver by Austa to collect such fees. The Court found no laches or abandonment, and that Austa had the right to make reasonable rules with respect to the use of the lake, but could not prohibit paddle boats. The Court found that MPIOA had the right to make reasonable rules for the water within 300 feet of its dock/marina.

Plaintiffs and defendant have appealed, and these issues are presented for review:

1. Whether the trial court erred in determining that MPIOA has the right to make reasonable rules and regulations of the area of lake within three hundred feet of its marina, dock and shoreline?
2. Whether the trial court erred in determining that an interval owner is not limited to the week of interval ownership in using the lake?
3. Whether the trial court erred in determining that neither Austa nor its successors could increase the fee charged for use of the lake until its was shown that the expenses of stocking and maintaining the lake exceeded the fees collected from all sources for its use?
4. Whether the trial court erred in determining that no fee was required if the interval owner did not wish to use the lake?
5. Whether the trial court erred in finding that the 1981 Master Deed contains a restrictive covenant requiring timeshare owners to pay a fee to use the lake?
6. Whether the trial court erred in holding that MPIOA could not amend the Master Deed without approval of Austa?
7. Whether plaintiffs’ claims are barred by waiver, estoppel and/or unclean hands?

The right to use the lake and fees related to its use, are essentially controlled by the documents which were introduced as exhibits at trial, i.e., the master deed and its related exhibits and amendments. The Trial Court found that the lake was clearly intended to be an amenity pursuant to the master deed and its related documents, and was also intended for use by the interval owners, subject to the payment of any required fees. MPIOA argues that the transfer of Mariner’s Pointe property carries with it an inherent right to use the lake, because the Mariner’s Pointe property adjoins the lake, and defendant relies upon the case of The Pointe, LLC v. Lake Management Ass’n., Inc., 50 S.W.3d 471 (Tenn.Ct.App.2000). Pointe dealt with the sale of lake front property to a developer, wherein the deed stated that the land was conveyed together with “all of the appurtenances and hereditaments thereunto belonging.” The Pointe Court held that this language granted the developer the right to use and enjoy the lake, because riparian rights were an appurtenance to the property, and the Court said that “the conveyance of upland by the owner of both the upland and the adjacent water transfers the riparian rights absent an express provision to the contrary.” Id. at 477.

The Trial Court distinguished Pointe, and we agree. The master deed in this case provides for a timeshare transfer, which would not be selling the land and all appurtenances, but selling the right to occupy a condominium unit for a certain week of the year. Moreover, the master deed and exhibits restrict use of the lake by providing that it, like other amenities, can be used only if the interval owner pays any applicable fees. These fees are described in the master deed as well as the public offering statement. Thus, it is clear from the documents that the timeshare owners were intended to use the lake, but it is also clear that this right carries with it the burden of paying the appropriate fees.

While MPIOA points out, that restrictive covenants “will be enforced according to the clearly expressed intention of the parties; but being in derogation of the right of unrestricted use of property will be strictly construed, and will not be extended by implication to anything not clearly and expressly prohibited by their plain terms”, (see Beacon Hills Homeowners Ass’n, Inc. v. Palmer Properties, Inc., 911 S.W.2d 736 (Tenn.Ct.App.1995)), the documents in this case contain plain terms which expressly limit use of the lake to those owners who pay the appropriate fee. While defendant argues that the master deed itself does not mention the lake, all of the related documents must be construed together to determine the intent of the parties. See McCall v. Towne Square, Inc., 503 S.W.2d 180 (Tenn.1973). Considering all of the related documents, it is clear that the interval owners were intended to have use of the lake upon payment of the appropriate fee to the owner of the lake, which is now Austa. The Trial Court was correct in holding that a lake use fee must be paid to Austa by the interval owners.

Thus, the issue becomes whether the Trial Court correctly held that an interval owner who did not wish to use the lake did not have to pay the fee. The Trial Court stated no basis for this holding, and as we stated, the documents are clear that a fee was required for the use of any and all of the amenities, and there is no basis to make a distinction between the lake and other facilities, nor is there any provision in the documents for allowing an interval owner to escape paying an amenity fee because they choose not to use one or all of the facilities. The documents set forth that fees will be due, and any purchaser would have been aware of those fees from the documents that were contained in the public offering and purchaser/seller verification, which the witnesses testified were given to every purchaser. Accordingly, we reverse the Trial Court’s holding on this issue.

Next, Austa argues that the Trial Court erred in determining that an interval owner was not limited to his/her week of ownership when using the lake. Austa argues that the master deed states in Article XXIV that owners can only use the common elements during their ownership week, but the master deed also defines common elements as “the portions of the Condominium property not included in the Units”. By its terms, it does not apply to the lake, which is not a part of the condominium property. Austa next argues that Article XXIII of the master deed states that no owner shall occupy his unit or exercise any other rights during any other weeks unless expressly authorized to do so. This provision is embedded in the section dealing with “Termination”, which is prefaced by “If all Unit Owners and holders of all liens and mortgages affecting any of the Condominium Parcels execute and duly record an instrument terminating the Condominium property”. Such termination has not taken place. Reliance on this provision by Austa is misplaced.

Finally, Austa argues that Exhibit 4 to the master deed, which is titled “Management Agreement”, states in paragraph 28 that use of recreational facilities is limited to the owner during the ownership week. However, this paragraph then provides that Boardwalk “shall have the right to grant use of the facilities to such other persons and under such terms and conditions as it shall determine advisable in its sole discretion pursuant to the provisions of the Declaration” (master deed). The evidence at trial showed that Boardwalk’s successor, LPI, granted use of the recreational facilities year-round to local residents, in exchange for their purchase of off-season timeshare weeks. Substantial testimony at trial established that the purchasers were promised year-round use of the lake and other amenities.

Since year-round use of the recreational facilities, including the lake, was granted to the interval owners by Austa’s predecessor, as it was so empowered by the documents, the Trial Court properly found that interval owners could use the lake all year upon payment of the appropriate weekly fee. We find this issue to be without merit.

As to the amount of the weekly fee, Austa argues that it was improper for the Court to require a showing that the expenses of stocking and maintaining the lake exceed the fees collected before the use fee can be increased, because this requirement does not appear in the master deed and related documents. Our review of the documents supports this contention, as they do not appear to place a limit upon the fee that can be collected. As this Court has previously recognized, however:

Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. Covington v. Robinson, 723 S.W.2d 643, 645 (Tenn.App.1986) (citing Restatement (Second) of Contracts § 205 (1979); 17 Am.Jur.2d Contracts § 256 (1964)); see also 17A C.J.S. Contracts § 328 (1963). Section 256 of American Jurisprudence, Second Edition, on Contracts, further provides:
[Tjhere is an implied undertaking in every contract on the part of each party that he will not intentionally or purposely do anything ... which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Ordinarily if one exacts a promise from another to perform an act, the law implies a counter promise against arbitrary or unreasonable conduct on the part of the promisee. However, essential terms of a contract on which the minds of the parties have not met cannot be supplied by the implication of good faith and fair dealing, (footnotes omitted).

Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn.Ct.App.1995).

We hold that the Trial Court properly imposed a reasonableness requirement on the lake use fee that can be levied by Austa. The Chancellor did not require that Austa had to bring the matter before the Court before the fee could be increased, however, he simply said that Aus-ta could not raise the fee until it could demonstrate that such was necessary.

Austa argues the Trial Court erred in holding that defendant could make reasonable rules and regulations for that area of the lake within 300 feet of its dock, shoreline, and marina. The evidence before the Trial Court was that the lake use rules proposed by Austa would likely cause damage to defendant’s marina and other structures, and any vessels located in the area. The Trial Court also had before it boating rules promulgated by the TWRA, which state that all boats being operated within 300 feet of a commercial dock or marina shall be operated at a slow, no-wake speed, which was not provided for by Austa’s proposed rules. The Trial Court’s ruling simply recognizes that the 300 foot restriction imposed by TWRA and seeks to protect defendant’s property interests. This is an equitable ruling, and we affirm the Chancellor.

Defendant argues that it should have been allowed to amend the master deed without Austa’s approval, because it is a successor to Boardwalk as “Boardwalk” is defined in the master deed. Both defendant and Austa are successors to Boardwalk in different pieces of property, which was originally part of a larger development until the tax sale. Defendant argues that Austa is not a successor to Boardwalk as to the Mariner’s Pointe property, and thus Austa does not have to give approval. The master deed, however, recognizes that Boardwalk owned not only the timeshare property, but the surrounding development as well, and expressly set forth the manner in which amendments could be adopted by timeshare owners, and specifically provided that “No amendment shall change the rights and privileges of Boardwalk without its written approval.” In this context, Boardwalk intended that certain changes could be adopted by the voting owners so long as those changes did not affect its rights. Defendant is a successor to Boardwalk as to the timeshare property, and Austa is a successor to Boardwalk as to the rest of the property, including the lake. Thus, the interval owners cannot, as the Trial Court found, adopt changes which modify or destroy rights belonging to Austa as successor to the remainder of the Boardwalk property. We affirm the Trial Court’s ruling on this issue.

Finally, defendant argues that Austa’s claims should be barred by the doctrines of waiver, estoppel, and/or unclean hands. It argues that the lake use fees were waived by LPI for failing to charge the same, but this is not established by the proof, as the testimony was that the lake use fees were included in the maintenance fee by LPI. Defendant argues that a further waiver occurred when LPI failed to counterclaim for lake use fees in the 1993 lawsuit between LPI and defendant. This was, however, prior to the amendments which purported to delete the requirement that such fees be paid, which were not adopted until 1995, after LPI no longer owned the property. It does not appear that LPI has ever claimed that it was owed lake use fees that were not paid. The dispute arose after Austa bought the property and lake and sought to charge lake use fees to defendant’s members. It was established that when defendant failed to cooperate with Austa in collecting those fees, this lawsuit was filed.

Defendant also argues that Aus-ta’s claims are barred by the unclean hands of LPI in that LPI collected property taxes and such from MPIOA members but did not submit those funds to the proper taxing authority. As we have noted, this is also conduct of LPI and not Austa, and Austa is not responsible for that behavior and cannot be held accountable for its predecessor’s actions over which it had no control.

For the foregoing reasons, we affirm the Judgment of the Trial Court in part and reverse in part and remand, and assess one-half of the cost of the appeal to appellants, Austa La Vista, LLC and Take it Easy, LLC, and one-half of the cost of appeal to Mariner’s Pointe Interval Owners Association, Inc., and Henry Phillips, individually.

      . MPIOA argues that Austa waited too long to file suit and should be barred, but Ms. Wibel did testify that she had been trying to get a list of MPIOA members' names from Dave Burgess so that she could send them bills, and was unable to obtain same. As the trial court found, waiver is the voluntary relinquishment of a known right, and there was no proof of such relinquishment in this case.