author: JEFFREY W. BATES, Chief Judge.

text:
    Sandra MEYERS and Reva Teets, Petitioners-Respondents, v. Charles JOHNSON, Respondent, and Victor Kennedy, Respondent-Appellant.
    No. 26801.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 25, 2006.

      W. Tom Norrid of Springfield, MO, for appellant.
    Sandra Meyers and Reva Teets, Stockton, respondents acting pro se.
   JEFFREY W. BATES, Chief Judge.

Victor Kennedy (“Appellant”) has attempted to appeal from a judgment vesting ownership of a mobile home in Sandra Meyers and Reva Teets (collectively, “Respondents”). The mobile home was located on real property which Respondents purchased at a foreclosure sale. The trial court determined the mobile home had been abandoned and, therefore, belonged to Respondents. Because the record unequivocally proves Appellant has no legal, equitable or possessory interest in the mobile home, he lacks standing to appeal from the judgment. The absence of standing deprives this Court of appellate jurisdiction and requires us to dismiss the appeal.

I. Summary of the Facts

In July 2002, Charles Johnson (“Johnson”) owned 1.73 acres of real estate in Dade County, Missouri. A 1980 Golden Venture double-wide mobile home was located on this land. On July 2, 2002, Appellant purportedly “purchased” the mobile home from Johnson by swapping certain items of personal property belonging to Appellant for Johnson’s interest in the mobile home. At the time the “purchase” occurred, Appellant was given a bill of sale for the mobile home. He did not receive an assigned certificate of title because Johnson had not been given one when he acquired the mobile home at some earlier point in time.

The Dade County property was mortgaged, and Johnson evidently fell behind in his payments. Upon default, Great Southern Bank (“Great Southern”) initiated foreclosure proceedings. Respondents purchased the Dade County land at the foreclosure sale on March 3, 2003. The mobile home, which had been skirted and lacked wheels or axles, was still located on the real estate.

Shortly after the foreclosure sale, Sandra Meyers (“Meyers”) and her husband, Donald Woodrone, went to Appellant’s place of business in Stockton, Missouri, to talk to him. This visit was prompted by Great Southern’s statement to Respondents that Appellant “had an interest” in the mobile home. If Appellant owned the mobile home, Meyers wanted him to move it off of the Dade County property. Appellant offered to sell the mobile home to Meyers, but she declined because Appellant had no title to it. After Appellant learned Meyers was not interested in buying the mobile home, he said he would move it “when he got the money.”

In mid-April 2003, Meyers sent Appellant a letter notifying him to move the mobile home within 30 days. Appellant did not respond to the letter, and subsequent attempts by Meyers to contact Appellant by telephone were unsuccessful. In June 2003, Meyers re-established utility service for the mobile home. In early August 2003, she allowed her son, his girlfriend and their two children to begin living there. Meyers permitted this occupancy of the mobile home because Appellant had not moved it and, to Meyers’ knowledge, had made no effort to do so or expressed any intention to do so since March 2003.

In September 2003, Respondents filed a petition for declaratory judgment. Their petition alleged the mobile home had been abandoned, and they were now the rightful owners of that personal property. After a bench trial, the judge entered a judgment vesting ownership of the mobile home in Respondents. The court did so because Respondents presented clear and convincing evidence that the mobile home had been abandoned. This appeal followed.

II. Discussion and Decision

The issue Appellant asks us to decide in this appeal is whether there was sufficient evidence to support the trial court’s determination that the mobile home had been abandoned. For the reasons more fully explained below, we do not reach this issue because Appellant was not aggrieved by the judgment and, therefore, lacks standing to appeal. This conclusion stems from the undisputed fact that Appellant did not receive a properly-assigned certificate of title when he purportedly “purchased” the mobile home in July 2002. As explained below, this defect rendered the sale void and deprived Appellant of any legal, equitable or possessory interest in the mobile home that could be adversely affected by the judgment below.

Before reaching the merits of any appeal, it is our obligation to determine sua sponte whether we have jurisdiction. City of Brentwood v. Barron Holdings Int’l Ltd., 66 S.W.3d 139, 142 (Mo.App.2001). Appellant is not entitled to appeal simply because he was a defendant in the underlying proceeding. See Briss v. Consolidated Cabs, Inc., 295 S.W.2d 391, 392 (Mo.App.1956). In this state, the right to appeal is statutory. Strawhun v. Strawhun, 164 S.W.3d 536, 536 (Mo.App.2005). Section 512.020 is the principal statute that creates the right of appeal in a civil case. In re Estate of Forhan, 149 S.W.3d 537, 540 (Mo.App.2004). This statute states, in pertinent part, as follows:

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any: ... (5) Final judgment in the ease....

Thus, a party to a civil action must be “aggrieved” by the judgment below in order to have any right to appeal. Parker v. Swope, 157 S.W.3d 350, 352 (Mo.App.2005); City of Brentwood, 66 S.W.3d at 142.

In a civil action like this one involving a dispute about the ownership of property, a party is aggrieved, within the meaning of § 512.020, when his or her pecuniary or property rights or interests are directly affected by the judgment. Matter of Foreclosure for Delinquent Land Taxes by Action in REM, 947 S.W.2d 90, 93 (Mo.App.1997). Ordinarily, a judgment or decree which affects or determines rights in particular property does not aggrieve a party who has no interest or title to the property. State ex rel. State Highway Comm’n v. Chicago, Burlington and Quincy R.R. Co., 539 S.W.2d 760, 762 (Mo.App.1976); Campbell St. Lumber Co. v. Central Mortgage Co., 436 S.W.2d 57, 60 (Mo.App.1968). When the appealing party is not aggrieved by a judgment determining property ownership, we are not vested with jurisdiction over the appeal. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). That lack of jurisdiction requires dismissal of the appeal. Parker, 157 S.W.3d at 352. To determine the jurisdictional issue, we must decide what title or interest, if any, Appellant acquired in the mobile home in July 2002 when he purchased that personal property without receiving a certificate of title.

The sale of a mobile home in this state is governed by Chapter 700 of the Missouri Revised Statutes. Dimmitt v. Progressive Cas. Ins. Co., 92 S.W.3d 789, 791 (Mo. banc 2003). The statute that controls the disposition of this appeal is § 700.320.1. It states, in pertinent part, as follows:

The owner of any new or used manufactured home ... shall make application to the director of revenue for an official certificate of title to such manufactured home in the manner prescribed by law for the acquisition of certificates of title to motor vehicles, and the rules promulgated pursuant thereto. All ... penalties provided by law for the failure to title motor vehicles shall apply to persons required to make application for an official certificate of title by this subsection.

(Emphasis added.)

Section 301.210 prescribes the manner in which a certificate of title for a motor vehicle is acquired. Dimmitt, 92 S.W.3d at 791. When the ownership of a motor vehicle is sold or transferred, this statute requires that the holder of the certificate of ownership “endorse on the same an assignment thereof, with warranty of title in form printed thereon ... and deliver the same to the buyer at the time of the delivery to him of such motor vehicle .... ” § 301.210.1. The buyer is required to present the assigned certificate of ownership to the Director of Revenue and obtain a new title. § 301.210.2. Finally, § 301.210.4 states:

It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as provided in this section, and the sale of any motor vehicle or trader registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.

“Missouri courts have consistently held that by reason of § 301.210, even if accompanied by full payment or physical delivery of possession, the attempted sale of a motor vehicle is fraudulent and void, passing neither legal nor equitable title, unless as a reasonably contemporaneous part of the transaction, the previously issued certificate of ownership with a properly completed assignment by the seller is delivered to the buyer.” State v. Beaird, 914 S.W.2d 374, 378 (Mo.App.1996). A putative purchaser does not even acquire a right to possess the motor vehicle unless he or she receives a properly-endorsed certificate of title. Okello v. Beebe, 930 S.W.2d 40, 43 (Mo.App.1996).

In the case at bar, the record unequivocally demonstrates that the sales transaction between Johnson and Appellant did not comply with § 700.320 and § 301.210 because there was no contemporaneous delivery of a properly-endorsed certificate of title to Appellant. This defect rendered the transaction fraudulent and void. Okello, 930 S.W.2d at 43; Beaird, 914 S.W.2d at 378. Therefore, Appellant acquired no interest or right of any nature in the mobile home by virtue of his void and unenforceable agreement with Johnson. See Stuyvesant Ins. Group, Inc. v. Anderson, 547 S.W.2d 171, 173 (Mo.App.1977). That being so, Appellant is not aggrieved by the trial court’s judgment declaring the mobile home abandoned and vesting title in Respondents. Id. The judgment does not directly affect any legal, equitable or possessory interest of Appellant in the mobile home because he has none. “An appeal without statutory sanction confers no authority upon an appellate court except to enter an order dismissing the appeal.” Campbell St. Lumber Co. v. Central Mortgage Co., 436 S.W.2d 57, 61 (Mo.App.1968).

Appeal dismissed.

SHRUM, P.J., and BARNEY, J„ Concur.

      . All references to statutes are to RSMo Cum. Supp. (2004) unless otherwise specified.

      . Section 700.010(5) RSMo (2000) defines a manufactured home to include a factory-built structure which, when erected on site, contains 320 or more square feet. The mobile home at issue here is a double-wide trailer.

      . All references to § 301.210 are to RSMo (2000).

      . The same is true of Appellant’s alleged predecessor in title, Johnson. His attempt to purchase the mobile home was fraudulent and void because there was no contemporaneous delivery of a properly-endorsed certificate of title to him. Since Johnson never acquired ownership of the mobile home, he could not legally sell that personal property to Appellant. See Jackson v. Cannon, 147 S.W.3d 168, 173 (Mo.App.2004).


source: Caselaw Access Project

author: ADOLPHO A. BIRCH, JR., J.,

license: Public Domain

text:
    Thomas Poston STUDDARD v. STATE of Tennessee.
    Supreme Court of Tennessee, at Jackson.
    April 5, 2005 Session.
    Nov. 30, 2005.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael E. Markham, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellant, State of Tennessee.
    Jim W. Horner, District Public Defender; H. Tod Taylor, Assistant District Public Defender; and Patrick R. McGill, Assistant District Public Defender, for the appellee, Thomas Poston Studdard.
   OPINION

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., sand FRANK F. DROWOTA, III, E. RILEY ANDERSON, and JANICE M. HOLDER, JJ., joined.

We granted permission to appeal in this case pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether the Court of Criminal Appeals erred in vacating the defendant’s conviction. The defendant, Thomas Poston Studdard, was indicted for three counts of rape of a child. To this original indictment he entered a negotiated plea of guilty to the charge of incest and was sentenced to a term of eight years as a Range II multiple offender. Pursuant to Rule 35(b) of the Tennessee Rules of Criminal Procedure, he filed a motion seeking correction or reduction of his sentence. Following a hearing, the trial court overruled the motion, and he appealed. Without addressing the defendant’s stated concern, the Court of Criminal Appeals, ostensibly using the plain error doctrine, vacated the judgment of conviction on the grounds that incest is not a lesser included offense of child rape and because the record failed to reflect that the indictment had been amended. The intermediate court reinstated the original indictment and remanded the case. Because we conclude that the trial court had jurisdiction to accept the plea and because the criteria for plain error have not been met, we reverse the judgment of the Court of Criminal Appeals, reinstate the conviction for incest, and remand the case to the Court of Criminal Appeals for consideration of the defendant’s sentencing issues.

I. Facts and Procedural History

A Dyer County Grand Jury indicted the defendant on three counts of rape of a child, a Class A felony. Tenn.Code Ann. § 39-13-522(b) (2003). Pursuant to a plea agreement, he pleaded guilty to one count of incest, a Class C felony. Id. § 39-15-302(b) (2003). The defendant executed a “Plea of Guilty and Waivers of Jury Trial and Appeal” form which stated that he was pleading guilty to the charge of incest. Although the indictment was not amended to include the incest charge, incest was listed on the judgment as the “Conviction offense.” The trial court sentenced the defendant to an eight-year term in the Tennessee Department of Correction as a Range II multiple offender.

Within the time allowed, the defendant sought to correct or reduce his sentence pursuant to Tennessee Rule of Criminal Procedure 35(b) (2004). The defendant claims that only after he signed the plea agreement did he learn that pursuant to Tennessee Code Annotated section 40-35-503(c) (2003), he would be required to complete a sexual offender treatment program and be psychologically certified before he would be eligible for parole. The trial court conducted a hearing and entered an order overruling the motion. Thereafter, the defendant appealed as of right to the Court of Criminal Appeals, contesting his sentence and not his conviction.

Without reaching the merits, the Court of Criminal Appeals vacated the defendant’s conviction because he had pleaded guilty to an offense with which he had not been charged and because the record does not reflect that the indictment charging rape of a child had been amended to include incest, the offense to which the defendant had pleaded guilty. The Court of Criminal Appeals ordered that the indictment charging the defendant with rape of a child be reinstated. We granted the State’s application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to consider whether the Court of Criminal Appeals erred in vacating the defendant’s conviction.

II. Standard of Review

The issue before us is a question of law. Accordingly, our review is de novo with no presumption of correctness accorded to the courts below. State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529, 533 (Tenn.2004).

III. Analysis

In this appeal, the State contends that the Court of Criminal Appeals erred in vacating the defendant’s conviction. Specifically, the State cites to this Court’s recent decision in State v. Yoreck, 133 S.W.3d 606 (Tenn.2004), in which this Court held that the trial court had subject matter jurisdiction to accept the defendants’ guilty pleas for offenses even though these offenses were not charged in the indictments, nor were they lesser included offenses of those charged in the indictments. We further held that the intermediate court erred in finding that the trial court’s acceptance of the plea was plain error. Id.

When the Court of Criminal Appeals filed its decision in the present case, Yo-reck had not yet been released. In these circumstances, the Court of Criminal Appeals relied on the now-reversed intermediate court decision in Yoreck in vacating the defendant’s conviction in the case under review. See State v. Robert James Yoreck, III, No. M2001-02448-CCA-R3-CD, 2003 WL 141051 (Tenn.Crim.App. Jan.15, 2003). We must now consider the instant case in light of our recent decision in Yoreck, 133 S.W.3d 606.

Yoreck comprised three cases that were consolidated on appeal. Each of the defendants pleaded guilty to charges that were not listed on the indictments and that were not lesser included offenses of those charged. The defendants then appealed, arguing that the trial court erred in sentencing them. They did not raise any additional issues. The Court of Criminal Appeals, sua sponte, held that the defendants’ guilty pleas must be set aside because they had pleaded guilty to offenses that were not stated in the indictment and that were not lesser included offenses of the indicted offenses. The intermediate court was not clear as to the basis for vacating the rulings — whether based on lack of subject matter jurisdiction or because the case met all of the plain error requirements. On appeal, this Court reversed, holding that no jurisdictional defects were present and that the plain error criteria had not been satisfied. Yoreck, 133 S.W.3d at 614.

In the instant case, the facts are strikingly similar to those in Yoreck. The defendant entered a plea to incest, a charge that was neither stated in the indictment, nor a lesser included offense of the indicted charge. The defendant then sought review of his sentence pursuant to Rule 35(b) of the Tennessee Rules of Criminal Procedure. The intermediate court, sua sponte, vacated the defendant’s conviction based on the Court of Criminal Appeals’ decision in Yoreck. The intermediate court did not explain why the trial court’s decision constituted plain error, nor did it discuss whether the trial court had subject matter jurisdiction.

The State now appeals, contending that based on this Court’s decision in Yoreck, the Court of Criminal Appeals erred in vacating the convictions. We agree. We held in Yoreck that “in addition to the issues raised by the parties, the appellate court must address jurisdiction and may address plain error.” 133 S.W.3d at 611. Therefore, we must determine whether the trial court had subject matter jurisdiction to accept the guilty plea and whether the Court of Criminal Appeals properly applied the plain error doctrine.

A. Jurisdiction

“[A] defendant who enters a plea of guilty waives all nonjurisdictional defects and constitutional infirmities.” State v. Yoreck, 133 S.W.3d at 612 (citing State v. McKinney, 74 S.W.3d 291, 306 (Tenn.2002); State v. Pettus, 986 S.W.2d 540, 542 (Tenn.1999)). Thus, “an appellate court shall consider whether the trial court had jurisdiction over the subject matter, whether or not presented for review.” Yo-reck, 133 S.W.3d at 612. Because the defendant in this case was charged with a proper indictment for rape of a child, the trial court was vested with jurisdiction. See id.

Nevertheless, although a trial court may be initially vested with jurisdiction, a defendant “may be convicted only of an offense enumerated in the indictment, or an offense that qualifies as a lesser-included offense thereof.” State v. Moore, 77 S.W.3d 132, 134 (Tenn.2002). Here, the defendant was properly charged with rape of a child, but he ultimately pleaded guilty to incest. Incest is not a lesser included offense of rape of a child. See State v. Beauregard, 32 S.W.3d 681, 683 (Tenn.2000) (holding that a defendant can be convicted of both rape and incest based upon a single act because they are different offenses). Thus, we must determine if the indictment was amended to include the charge of incest.

In Yoreck, this Court stated that an indictment may be amended with the consent of the defendant. 133 S.W.3d at 612; Tenn. R.Crim. P. 7(b) (2003). Specifically, we found that the defendants had signed plea agreements indicating the charge to which they were pleading and that the judgments had listed the amended charges. Thus, we held that the indictment had been amended with the consent of the defendants, and the defendants were on notice of the offenses to which they pleaded guilty.

In the present case, the defendant signed a “Plea of Guilty and Waivers of Jury Trial and Appeal” form which listed the conviction to which he was pleading as incest. The only significant difference from Yoreck is that the judgment in this case did not state the “Amended Charge.” Instead, on the judgment, the “Offense” was listed as “Rape of Child” and underneath that section, the “Conviction offense” was listed as “Incest.” Nevertheless, we conclude that in the context of a guilty plea proceeding, the listing of the conviction for incest on the form which the defendant signed is sufficient to put the defendant on notice of the charge with which he was convicted.

Based on Yoreck, we conclude the defendant was initially charged with a proper indictment, so the trial court was vested with jurisdiction. See Yoreck, 133 S.W.3d at 612. Although a transcript of the guilty plea proceeding is not included in the record, the defendant signed a “Plea of Guilty and Waivers of Jury Trial and Appeal” form which listed the conviction to which he was pleading as incest. Additionally, the judgment listed the original “Offense” as “Rape of Child” and the “Conviction offense” as “Incest.” Based on the foregoing, we conclude, as we did in Yoreck, that the conviction was, at most, voidable, and therefore, is not jurisdietionally defective. “Consequently, if the Court of Criminal Appeals vacated the conviction[ ] ... because it concluded the trial court lacked subject matter jurisdiction, then the court erred in so doing.” Id. at 613.

B. Plain Error

We next determine whether the Court of Criminal Appeals properly vacated the defendant’s conviction based on plain error. This Court has adopted the five-factor test announced by the Court of Criminal Appeals in State v. Adkisson, 899 S.W.2d 626 (Tenn.Crim.App.1994), to determine whether error constitutes “plain error” under Tennessee Rule of Appellate Procedure 36(b) and Tennessee Rule of Criminal Procedure 52(b). State v. Smith, 24 S.W.3d 274, 282 (Tenn.2000). Plain error may be found when all of the following factors are present:

(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is ‘necessary to do substantial justice.’

Id. (quoting Adkisson, 899 S.W.2d at 641-42). All five factors must be established in order for the Court to recognize plain error. Smith, 24 S.W.3d at 283.

First, transcripts of the guilty plea proceedings are not included in the record. Thus, the record does not clearly establish what occurred in the trial court, so factor (a) under the plain error test is not met. See Adkisson, 899 S.W.2d at 641-42.

Further, the defendant pleaded guilty to incest — an offense with a lesser penalty than the offenses for which he was originally indicted. Pursuant to Tennessee Code Annotated section 40-35-lll(b)(l) (2003), the defendant would have been sentenced to at least fifteen years if convicted of rape of a child. Because the defendant was originally indicted on three counts of rape of a child, the defendant’s sentences for this Class A felony could have been ordered to be served consecutively. Tenn. Code Aim. § 40-35-115 (2003). Under his conviction for incest as a Range II offender, however, the defendant was exposed to a minimum of six and a maximum of ten years incarceration. Tenn.Code Ann. § 40-35-112 (2003). He was sentenced to eight years. The record strongly suggests the defendant pleaded guilty to incest-a lower grade offense — for tactical reasons. Indeed, by this plea of guilty, the defendant accepted the benefit of a lower sentence for a lower-grade offense. Factor (d) limits plain error review to issues not waived for tactical reasons. Smith, 24 S.W.3d at 283. Therefore, factor (d) under the plain error test-that the accused did not waive the issue for tactical reasons-is also not met. See id. Thus, we conclude that all of the plain error criteria are not met and that the intermediate court’s finding of plain error is erroneous.

IV. Conclusion

Accordingly, we hold the Court of Criminal Appeals abused its discretion in finding that the trial court’s acceptance of the guilty plea in this case was plain error. Consequently, we reinstate the conviction imposed by the trial court and remand the case to the Court of Criminal Appeals to review and consider the remaining sentencing issues. It appearing that the defendant is indigent, costs are taxed to the State of Tennessee, for which execution may issue if necessary.

      . Tennessee Rules of Criminal Procedure 35(b) (2004) provides:
      The trial court may reduce a sentence upon application filed within 120 days after the date the sentence is imposed or probation is revoked. No extensions shall be allowed on the time limitation. No other actions shall toll the running of this time limitation. A motion for reduction of sentence under this rule may be denied by the trial judge without a hearing. If the application is denied, the defendant may appeal but the defendant shall not be entitled to release on bond unless the defendant is already under bond. If the sentence is modified, the state may appeal as otherwise provided by law. A modification can only be as to any sentence the court could have originally imposed.

        . Tennessee Code Annotated section 40-35-503(c) (2003) provides:
      No person convicted of a sex crime shall be released on parole unless a psychiatrist or licensed psychologist designated as a health service provider has examined and evaluated such inmate and certified that, to a reasonable medical certainty, the inmate does not pose the likelihood of committing sexual assaults upon release from confinement.
      The examination and evaluation shall be provided by psychiatrists or licensed psychologists designated as health service providers whose services are contracted or funded by the department of correction or the board of paroles. The board shall consider any such other evaluation by a psychiatrist or licensed psychologist designated as a health service provider which may be provided by the defendant.


author: FRANK G. CLEMENT, JR., J.,

text:
    Dana COUNTS v. Jennifer Lynn BRYAN, et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Jan. 4, 2005 Session.
    July 13, 2005.
    Permission to Appeal Denied by Supreme Court Nov. 28, 2005.

      John S. Colley, III, Columbia, Tennessee, for the appellants, Jennifer L. Bryan, Jerry Bryan and Geri Bryan.
    Lawrence D. Sands, Columbia, Tennessee, for the appellee, Dana Counts.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., P.J., M.S., and WILLIAM B. CAIN, J., joined.

Defendants appeal the denial of a Tenn. R. Civ. P. 50 motion for directed verdict. This is Plaintiffs second action against Defendants to recover damages resulting from a personal injury accident. The first action was timely filed and voluntarily dismissed. This action, which is a separate, subsequent action, was commenced within one year of the voluntary dismissal; however, Plaintiff did not plead sufficient facts in the complaint to establish the timeliness of the commencement of the new action. Defendants affirmatively pled the statute of limitations defense in their answer; however, Plaintiff did not amend the complaint nor introduce evidence at trial to address the statute of limitations issue. Defendants put the affirmative defense at issue during closing arguments. The trial court took the motion under advisement, the trial proceeded and the jury returned a verdict in favor of Plaintiff. Thereafter, the trial court elected to take judicial notice of facts appearing in the record in the first action, the date the first action was commenced and the date of the voluntary dismissal, determined the second action was timely filed and denied Defendants’ motion. We affirm.

Dana Renee Counts sustained physical injuries in a vehicular accident with Jennifer Lynn Bryan on February 26, 1996. She commenced her first action against Ms. Bryan and her parents, Jerry and Geri Bryan, on September 27, 1996. The complaint was served and Defendants filed an answer. Seven months later, on April 16, 1997, Plaintiff voluntarily dismissed her action. She filed this action by filing a complaint on October 28,1997.

The complaint in this action — the second action — provided the date of the accident; however, it made no reference to the previous action and did not state the date the first action was commenced, when that action was voluntarily dismissed or that the statute of limitations was tolled by the Tennessee Saving Statute, Tenn.Code Ann. § 28-1-105. Thus, on the face of the second complaint it appeared that this action was filed more than one year after the accident in violation of the one-year statute of limitations for personal injury actions. Defendants filed an answer and asserted inter alia the affirmative defense of the statute of limitations. Plaintiff, however, did not amend the complaint to cure the deficiencies. Moreover, she did not introduce evidence during the trial to establish the timely commencement of the first action, the date of the voluntary dismissal, or the timely commencement of this action. After the parties had closed their proof, Defendants put the affirmative defense of the statute of limitations at issue by attempting to argue the defense to the jury. Plaintiff objected and the trial court sustained the objection. Defendant then made a motion for directed verdict, which the trial court took under advisement. Subsequent to the jury returning a verdict in favor of Plaintiff, the trial court elected to take judicial notice of two facts from the previous action: 1) the date the previous action was commenced, and 2) the date that action was voluntarily dismissed. With the benefit of these additional facts, the trial court determined that the second action did not violate the statute of limitations and denied Defendants’ motion. Defendants appealed.

No genuine material factual disputes are presented. The issue presented hinges on the proper interpretation of law and its application to the facts of this case, thus they are questions of law. Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn.2002); Waller v. Bryan, 16 S.W.3d 770, 773 (Tenn.Ct.App.1999). Therefore, the trial court’s resolution of a question of law is not entitled to Tenn. R.App. P. 13(d)’s presumption of correctness on appeal. Accordingly, we will review the issues de novo and reach independent conclusions regarding them. King v. Pope, 91 S.W.3d 314, 318 (Tenn.2002).

The dispositive issue is whether the trial court erred by taking judicial notice of two facts from the record in the previous action between the parties.

Judicial notice is “a method of dispensing with the necessity for taking proof.” State ex rel. Schmittou v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874, 883 (1961). “Judicial notice is generally defined as a judge’s utilization of knowledge other than that derived from formal evidentiary proof in the pending case.” 1 J. Weinstein & M. BeRgeR, Weinstein’s Evidence, note 3, ¶ 200[01] at 200-02 (1991). The result of taking judicial notice of a fact is the establishment of the admission of that fact into evidence. Robert Banks, Jr. & Elizabeth T. Collins, Judicial Notice in Tennessee, 21 Mem. St. U.L.Rev. 431, 433 (1991).

Since 1990, Tenn. R. Evid. 201 has governed judicial notice of adjudicative facts. A judicially noticed fact must be one that is not subject to reasonable dispute. Tenn. R. Evid. 201(b). It must be either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Tenn. R. Evid. 201(b). Furthermore, a court may take judicial notice whether requested or not. Tenn. R. Evid. 201(c).

Prior to the adoption of Tenn. R. Evid. 201, it was not permissible to take judicial knowledge of former proceedings and judgments, even those in the same court between the same parties. See American National Bank v. Bradford, 188 S.W.2d 971, 979 (Tenn.Ct.App.1945). Tennessee historically permitted the taking of judicial notice of facts from earlier proceedings only if they occurred in the same action. See Sims v. Barham, 743 S.W.2d 179, 181 (Tenn.Ct.App.1987) (stating that a court may properly take judicial notice of filings within that proceeding, such as amounts paid into the clerk’s office); Stone v. O’Neal, 90 S.W.2d 548, 552 (Tenn.Ct.App.1935) (stating that courts may take judicial notice of all papers filed in that action); Delbridge v. State, 742 S.W.2d 266, 267 (Tenn.1987) (finding judicial notice appropriate when a court took notice of earlier proceedings in the same case). The adoption of the Tennessee Rules of Evidence, effective January 1, 1990, effected a substantial change, at least for taking judicial notice of facts as distinguished from taking judicial notice of law. See Mandela v. Reynolds, No. 01-A-01-9303-CH00126, 1993 WL 236607 (Tenn.Ct.App. June 30, 1993). Most Tennessee opinions on the subject of taking judicial notice of facts were authored prior to the adoption of Tenn. R. Evid. 201. As a consequence, those opinions are no longer controlling.

The issue before us pertains to taking judicial notice of facts, as distinguished from law. Tenn. R. Evid. 201(A) expressly states that it “governs ... judicial notice of adjudicative facts.” The rule, however, does not define the term “adjudicative fact.” 21 C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5103, at 473 (1977) (describing the absence of a definition as “baffling”). Nor is it explained or defined in the Advisory Commission Comments to the Tennessee Rules of Evidence. Moreover, Fed.R.Evid. 201, which is identical to the Tennessee rule, provides no such explanation.

Other sources inform us that judicial notice of adjudicative facts generally refers to the recognition of facts that-are relevant to a specific lawsuit. 21 Mem. St. U.L.Rev. 431, 434 (citing E. Cleary, McCormick on Evidence § 328, at 920 (3d ed.1984)). The respected treatise, Tennessee Law of Evidence endeavored to define or explain the term adjudicative facts and found no definitive answer but a variety of definitions. Neil P. Cohen, Sarah Y. Shep-peard & Donald F. Paine, Tennessee Law of Evidence § 2.01[3] (4th ed.2000). One such definition is that:

[AJdjudicative facts help to “explain who did what, when, where, how, and with what motive and intent.” Another definition is a fact “to which the law is applied in the process of adjudication.” They are the facts that normally go to the jury in a jury case. They relate to parties, their activities, their properties, their businesses.

Trial courts may also take notice of adjudicative facts in the form of books and reports, and of rules of arbitration, such as Commercial Rules of the American Arbitration Association (AAA). Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351, 362 (Tenn.Ct.App.2001) (holding that the court may take judicial notice of an arbitration agreement the parties agreed to utilize); see also Flanary v. Carl Gregory Dodge of Johnson City, LLC, No. E2004-00620-COA-R3CV, 2005 WL 1277850, *6 (Tenn.Ct.App. Feb.14, 2005). However, Tenn. R. Evid. 201(b)(2) generally should not be applied to take judicial notice of a witness’ opinion or of long narratives by a witness of his or her general observations or perceptions of events. Adjudicative facts contemplated in Tenn. R. Evid. 201 are typically those facts Detective Joe Friday, a character of the popular 1950⅛ television series Dragnet, desired to elicit from a witness. His classic line — to encourage a witness who was being too verbose — was, “Just the facts, ma‘am’.”

As Tenn. R. Evid. 201(b)(2) provides, the adjudicative fact must be one that is “not subject to reasonable dispute” and it must be “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Here, Defendants moved to dismiss, arguing the second action violated the one-year statute of limitation for personal injury actions. The facts necessary to answer that question are: (1) the date the cause of action accrued — the date of the accident, (2) the date the first action was commenced, (3) the date of the voluntary dismissal, and (4) the date the second action was commenced. The complaint in the second action provided two of the four dates, the date of the accident and the date the second action was commenced, which was stamped on the face of the second complaint. The two missing facts — the date the first action was commenced and the date of the voluntary dismissal — were in the trial court’s records.

The two missing dates were capable of accurate and ready determination by referencing the court’s files. Moreover, the accuracy of the dates cannot reasonably be questioned because the dates were imprinted by the Circuit Court Clerk of Mau-ry County on the documents as they were filed in that action. Tenn. R. Evid. 201(b) authorizes the trial court to take judicial notice of a fact that is not subject to reasonable dispute if it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Therefore, the trial court’s decision to take judicial notice of the two missing dates was an appropriate exercise of its discretion, as authorized by Tenn. R. Evid. 201.

The judgment of the trial court is affirmed and this matter is remanded with costs of appeal assessed against Defendants, Jennifer Lynn Bryan, Jerry Bryan and Geri Bryan.

      . The claim against the parents was based upon the Family Purpose Doctrine.

      . This is a separate, subsequent action; it is not a continuation of the first action pursuant to Tenn. R. Civ. P. 3. If process is not served within thirty days from issuance, the plaintiff may rely upon the original commencement to toll the running of a statute of limitations provided the plaintiff "continues the action” by obtaining issuance of new process within one year from issuance of the previous un-served process or, if no process is issued, within one year of the filing of the complaint. Tenn. R. Civ. P. 3. That rule does not apply here because the first action was dismissed.

      . Defendants framed the issue: “Is the failure to plead and prove tolling facts fatal to an action brought outside the applicable statute of limitations?” As we reviewed the case and relevant law, we find the real issue is judicial notice.

      . In Mandela, the defendant filed a motion to dismiss, which was based upon a res judicata defense. The trial court granted the motion after talking judicial notice of prior actions between the parties. This court affirmed noting, "The prior proceedings and judgments in the same court were subject to judicial notice because they were 'capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ ” Id. at 2, citing Tenn. R. Evid. 201(b)(2). This court further noted the plaintiff was afforded the opportunity to be heard "as to the propriety of taking judicial notice and the tenor of the matter noticed, i.e., the nature of the prior proceedings and identity of same with the present proceeding. Tenn. R. Evid. 201(e). This opportunity to be heard included the obligation and responsibility to present and preserve in this record sufficient evidence to controvert the matters of which the Trial Court took judicial knowledge.” This safeguard is provided in the rule. Tenn. R. Evid. 201(e).

      . Why the omission? Perhaps it was omitted, as the author of an excellent article on the subject opined, because "it is easier to illustrate an adjudicative or legislative fact or a question of law than it is to articulate a general principle that distinguishes them.” Robert Banks, Jr. & Elizabeth T. Collins, Judicial Notice in Tennessee, 21 Mem St. U.L.Rev. 431, 441(1991).

      . Long narratives will likely contain something that is subject to reasonable dispute. One of the conditions to taking judicial notice of a fact pursuant to Tenn. R. Evid. 201 is that the fact is not subject to reasonable dispute.

      . Adjudicative facts must not be subject to reasonable dispute. Tenn. R. Evid. 201. Historical facts, such as who, what or when, are more likely to satisfy this criteria, as distinguished from narrative explanations or opinions, which are more likely to be subject to dispute. See 21 Mem. St. U.L.Rev. 431, *433-434; see also State v. Matheny, 884 S.W.2d 480, 483 (Tenn.Crim.App.l994)(hold-ing that opinions are not appropriate for judicial notice).


author: HOLLY M. KIRBY, J.,

text:
    Roger McGEE on Behalf of BRIDGEWOOD BAPTIST CHURCH v. Polly HOLMES, Kenneth Holmes and Toni Cox.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Feb. 17, 2005 Session.
    July 8, 2005.
    Permission to Appeal Denied by Supreme Court Sept. 8, 2005.

      Stuart B. Breakstone, Memphis, for plaintiff/appellant Roger McGee.
    W. Clark Washington, Memphis, for defendants/appellees Ken and Polly Holmes.
    John D. Horne, Memphis, for defendant/appellee Toni Cox.
   HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

OPINION

This is a church dispute. The plaintiff, acting on behalf of the unincorporated church, sued several church members for fraud, conversion, and breach of fiduciary duty. The trial court ordered a vote by the remaining church members on whether to pursue the lawsuit, conducted by a special master. The thirty-five church members voted to pursue a claim against three defendants. After years of litigation, and the addition and deletion of certain defendants, the trial court ordered a second vote by church members on whether to continue the lawsuit. The five remaining church members, two of whom were defendants in the original suit, voted to dismiss the lawsuit. The trial court then dismissed the lawsuit. The plaintiff appealed, arguing that the trial court erred in ordering a second vote. We affirm, finding that the trial court’s actions were reasonable and within the scope of its authority.

Bridgewood Baptist Church (“Bridge-wood”) was an unincorporated church located in Arlington, Tennessee. In March 1999, plaintiff Roger McGee (“McGee”), a member of Bridgewood, filed a lawsuit on behalf of Bridgewood against Polly Holmes, Kenneth Holmes, and Hawaiian Pools, a Tennessee corporation owned by Polly and Kenneth Holmes. The lawsuit alleged that Polly Holmes, as an officer and trustee of Bridgewood, “intentionally failed to perform her duties as such so that funds and assets of Bridgewood were mismanaged, wasted and diverted to Defendants, Polly Holmes, Kenneth Holmes and Hawaiian Pools.” The attorney representing McGee on behalf of Bridgewood was Stuart Breakstone.

In response, a motion was filed by another church member, Toni Cox, also on behalf of Bridgewood, seeking substitution of counsel and a declaration that McGee was not a member of Bridgewood and had no authority to speak for the church. The motion asked the court to dismiss the claims asserted by McGee on Bridge-wood’s behalf. On July 12, 1999, the trial court denied this motion and referred the matter to Special Master Kenny Armstrong (“Special Master Armstrong”) with the following instructions:

a. Determine the present status of the Bridgewood Baptist Church.
b. If the Bridgewood Baptist Church is no longer in existence, determine the date the Church ceased to exist, and determine the membership of the Church immediately prior to the time it ceased to exist.
c. If the Church is still in existence, determine the present membership of the Church.
d. Submit the following questions to the vote of the membership, which the Clerk and Master shall determine, as of the present, or immediately prior to the time the Church may have ceased to exist, depending upon his conclusion;
(1) Shall Stuart Breakstone be authorized to represent the Bridgewood Baptist Church as its attorney in this pending lawsuit?
(2) Do the members of the Church wish to pursue the claims Roger McGee has asserted against Polly Holmes, Kenneth Holmes, and Hawaiian Pools in this lawsuit?
(3) The foregoing questions submitted to the Church shall be decided by a simple majority vote.
e. The ballots of Roger McGee, Polly Holmes and Kenneth Holmes shall be marked by the Clerk and Special Master prior to conducting the above vote (a) taking votes of the parties into consideration, and (b) without taking the votes of the parties into consideration.

On August 9, 1999, pursuant to the directions of the court, Special Master Armstrong conducted a preliminary hearing on the matter. He determined that the church was no longer in existence and that money was being held in the church operating account for the purpose of winding up church business. Special Master Armstrong named 45 church members who, based on Bridgewood’s September 1996 roster, were eligible to vote on Bridge-wood’s business matters. The required vote was scheduled.

Evidently, the issues on which the church members were to vote generated strong emotions. On October 29,1999, the trial court entered a consent order assigning “four uniformed Deputy Sheriffs” to assist the Special Master in conducting the court-ordered vote on Bridgewood’s business.

The vote on Bridgewood’s business matters was held on September 1,1999, apparently without incident. Special Master Armstrong submitted his final report on the matter to the trial court on November 8,1999. Thirty-five Bridgewood members voted. The results were tallied, both including and excluding the three members who were parties to the litigation. The results of the vote were as follows:

Shall Stuart Breakstone be authorized to represent the Bridgewood Baptist Church as its attorney in this pending lawsuit?
With Parties: Yes 20 No 15
Without Parties: Yes 19 No 13
Do the members of the Church wish to pursue the claims Roger McGee has asserted against Polly Holmes, Kenneth Holmes and Hawaiian Pools in this lawsuit?
With Parties: Yes 19 No 15
Without Parties: Yes 18 No 13

As a result of this vote, the trial court authorized McGee to proceed with the lawsuit on behalf of Bridgewood, with Stuart Breakstone acting as attorney.

By order on February 17, 2000, McGee voluntarily dismissed Bridgewood’s claims against Hawaiian Pools. On March 10, 2000, McGee filed a motion to amend the complaint to name as individual defendants church members Toni Cox (“Cox”) and Gay Darden (“Darden”), both of whom were officers or trustees of the church. McGee alleged that Cox and Darden had acted in furtherance of the scheme to defraud the church, and that they breached their fiduciary duties to the church. McGee also asserted that these members caused Bridgewood’s real property to be wrongfully donated to the Tennessee Baptist Children's Home (“Baptist Children’s Home”) and therefore moved to add the Baptist Children’s Home as a named defendant.

On May 11, 2000, McGee filed an amended complaint asserting numerous wrongful acts by Polly and Kenneth Holmes, Cox, and Darden. McGee alleged, inter alia, that Polly Holmes and Cox failed to follow Bridgewood’s procedures in electing trustees, improperly removed members from the church roster, and that Polly Holmes and Cox caused the funds and assets of Bridgewood to be “mismanaged, wasted and diverted” to Defendants Polly Holmes, Kenneth Holmes, Cox, and Hawaiian Pools. The amended complaint sought an accounting of the losses sustained by Bridgewood as a result of these actions, and asked that Polly and Kenneth Holmes, Cox and Darden be required to repay all sums they allegedly owed to Bridgewood. The amended complaint also asked the trial court to set aside the quitclaim deed transferring Bridgewood’s real property to the Baptist Children’s Home.

In response to the amended complaint, defendants Cox and Darden filed a motion to dismiss, in part claiming that McGee failed to join an indispensable party, the Macon Road Baptist Church. Cox and Darden stated that the real property originally owned by Bridgewood had been donated by the Baptist Children’s Home to Macon Road Baptist Church on December 14, 1999. As a consequence, McGee later made an oral motion to add Macon Road Baptist Church as a defendant.

All of this prompted the Baptist Children’s Home to file a motion asking the trial court to require McGee to seek further authority from Bridgewood in order to amend the complaint to add Macon Road Baptist Church as a defendant and to continue litigation against a fellow Baptist institution, the Baptist Children’s Home.

The trial court granted the motion of the Baptist Children’s Home and by order dated November 80, 2000, required McGee to seek further authority from Bridgewood to proceed further. The court ordered Bridgewood to conduct a special meeting at a time and place agreed upon by the parties and, at this meeting, to conduct a vote on the specified issues. The issues to be determined by this vote were:

(a) Should the suit be continued against Kenneth and Polly Holmes?
(b) Should the suit be continued against the Defendants, Toni Cox and Gay Dar-den?
(c) Should the suit be continued against Tennessee Baptist Children’s Home as a Defendant, seeking to set aside the transfer by the Bridgewood Baptist Church on October 7,1998 to the Home?
(d) Should the suit be amended to include as a defendant, Macon Road Baptist Church, the purchaser of the Church property?
(e) If the suit is to be continued, should attorney Stuart B. Breakstone continue as attorney for the Church?

The parties could not agree on the procedures for the vote. As a result, on January 19, 2001, McGee filed a motion asking the trial court to determine issues such as the location of the meeting, the roll call procedure, who would be permitted to attend the meeting, who would be permitted to speak at the meeting, absentee voting, telephone voting, whether the votes would be cast by secret ballot, and who would be entitled to vote. Not long after that, orders were entered in which McGee, on behalf of Bridgewood, dismissed the claims against the Baptist Children’s Home, withdrew the motion to add as a defendant the Macon Road Baptist Church, and declared that he would no longer seek to set aside the transfer of the Church’s real property.

By order dated June 15, 2001, the trial court ruled on McGee’s motion to have the trial court establish the procedures for the vote. The order states:

2. That the members who may vote at the special meeting of Bridgewood Baptist Church are to be those individuals who were attending Bridgewood Baptist Church on a regular basis, as determined by a reasonable test, and who were financially were (sic) supporting the said Bridgewood Baptist Church regarding the sale of the real property to the Tennessee Baptist Children’s Home, Inc., on October 7,1998.
4. That the continuation by the Plaintiff of this cause of action against the Defendant, Tennessee Baptist Children’s Home, Inc., and any additional Defendants, should be promptly determined by Plaintiff.
5. That, if, subsequent to the decision of the members of Bridgewood Baptist Church at the special meeting of Bridge-wood Baptist Church to be conducted hereafter, Plaintiff desires to continue this cause of action against any of the Defendants, the Plaintiff should amend the Complaint herein and state with particularity each and every alleged act of fraud, including, but not limited to, each alleged fraudulent act of each Defendant and the specific time of each alleged act of fraud by each Defendant.

On the same day as the above order, June 15, 2001, a consent order was entered in which McGee, on behalf of Bridgewood, agreed to dismiss Gay Darden as a defendant.

On June 29, 2001, in response to the June 15, 2001 order establishing the procedure for the vote, McGee filed another motion. In this motion, McGee asked the trial court to reconsider the criteria used to determine which members were eligible to vote because, McGee asserted, the individuals attending and supporting Bridge-wood on October 7, 1998 were “not a fair and accurate sampling of the individuals who make up the will and the fiscal base of the Church.” McGee argued that the events that were the basis for the lawsuit had taken place over a long period of time and had resulted in the waste of the funds of numerous church members. Based on this, McGee asked that the list of persons eligible to vote be expanded to include those who were members at the time of all of the alleged wrongdoings. By order dated July 25, 2001, the trial court denied the motion, thus maintaining the criteria for eligible voters set forth in the June 15, 2001 order.

In September 2001, McGee filed a motion seeking a hearing before the Special Master. The motion stated that, under the criteria set by the trial court’s June 15, 2001 order, the parties were still unable to agree upon a list of members eligible to vote on behalf of Bridgewood and asked the trial court to allow the Special Master appointed in the case to conduct a hearing on this issue. The trial court granted this motion.

Jack Sammons (“Sammons”) was appointed as Special Master and conducted the hearing on the matter on December 21, 2001. Sammons later reported his findings to the trial court. Sammons’ report consisted of a transcript of the hearing and a lengthy and detailed report on his findings. Based on the oral testimony of church members and a review of the church’s financial records, Sammons found that seven members of Bridgewood were eligible to vote, based on their attendance and financial support of Bridgewood. Those seven members were Toni Cox, Gay Darden, Ken Holmes, Polly Holmes, Peggy Hood, Belinda Summers, and Lee Summers.

Defendants Polly Holmes, Ken Holmes and Toni Cox then petitioned the trial court to confirm Sammons’ report. Not surprisingly, McGee objected to Sammons’ conclusions regarding who should be allowed to vote on Bridgewood’s business matters. McGee asserted, inter alia, that Cox and Darden did not meet the requirements to vote set forth in the June 15, 2001 order because they did not support Bridgewood financially. McGee also moved that it would be improper for Ken and Polly Holmes to vote since they were also defendants.

On April 11, 2003, after hearing arguments from the parties and reviewing the record, the trial court agreed with McGee’s objection as to Cox and Darden and refused to allow them to vote. In all other respects,- however, the trial court confirmed Sammons’ report. As a result, the five remaining members of Bridge-wood were deemed eligible to vote: Ken Holmes, Polly Holmes, Peggy Hood, Belinda Summers, and Lee Summers. The trial court ordered Sammons to conduct a vote on the following questions:

a. Shall Stuart Breakstone be authorized to represent Bridgewood Baptist Church as its attorney in this pending lawsuit?
b. Do the members of the Bridgewood Baptist Church wish to pursue the claims of Roger McGee asserted against Polly Holmes, Ken Holmes, and Toni Cox in this lawsuit?

In October 2003, Sammons sent ballots to all five voting members of Bridgewood, polling them on the two questions noted above. Sammons later reported the vote tally as follows:

a. Shall Stuart Breakstone be authorized to represent Bridgewood Baptist Church as its attorney in this pending lawsuit?
No-5 Votes
Yes - 0 Votes
b. Do the members of the Bridgewood Baptist Church wish to pursue the claims of Roger McGee asserted against Polly Holmes, Ken Holmes, and Toni Cox in this lawsuit?
No-5 Votes
Yes - 0 Votes
The members of Bridgewood have unanimously voted to neither allow Stuart Breakstone to represent Bridgewood in this lawsuit nor to pursue the claims asserted by Roger McGee.

Thereafter, the defendants moved to confirm the special master’s report and to dismiss the case with prejudice. In January 2004, after approximately five years of litigation among church members, the trial court confirmed Sammons’ report and dismissed McGee’s lawsuit. From this order, McGee now appeals. On appeal, McGee asserts that the trial court erred in ordering Bridgewood to conduct a second vote in April 2003, and in using different criteria to determine eligible voters than the criteria utilized in the original vote of Bridgewood members.

Section 27-1-113 of the Tennessee Code Annotated provides that “[w]hen there has been a concurrent finding of the master and chancellor, which under the principles now obtaining is binding on the appellate courts, the court of appeals shall not have the right to disturb such findings.” Tenn.Code Ann. § 27-1-113 (2000). However, this rule is not applicable:

“(1) where it is upon an issue not proper to be referred (State ex rel, [Weaver] v. Bolt, 130 Tenn. 212, 169 S.W. 761); (2) where it is based on an error of law (Hord, v. Holston River Railroad [Co.], 122 Tenn. 399, 123 S.W. 637, 19 Ann.Cas. 331, 135 Am.St.Rep. 878); (3) where it is upon a question of law or mixed fact and law (Dale v. Hartman, 157 Tenn. 60, 6 S.W.2d 319); or (4) where it is not supported by any material evidence.”

Staggs v. Herff Motor Co., 216 Tenn. 113, 390 S.W.2d 245, 251 (1965). Here, McGee does not necessarily appeal the factual findings of the Special Master; rather, he appeals the trial court’s decision to conduct a second vote and the criteria it utilized to determine the roster of eligible voters.

On appeal, McGee notes that the persons entitled to vote in the court-ordered November 1999 election were those on the church membership roster in September 1996, the time the claims arose. McGee asserts that, under Rule 23.04 of the Tennessee Rules of Civil Procedure, the court was authorized only to determine whether McGee fairly and adequately represented the interests of Bridgewood. See Tenn. R. Civ. Proc. 23.04. At that time, a majority of the thirty-five voting members voted to permit McGee, on behalf of Bridgewood, to pursue the claims against Polly and Kenneth Holmes and Hawaiian Pools.

The claim against Hawaiian Pools was later dropped. McGee also added the Baptist Children’s Home as a defendant and moved by oral motion to add Macon Road Baptist Church as a defendant. Considering all of the changes made to the original claims, the trial court determined that additional approval from Bridgewood was necessary and ordered a second vote. McGee maintains that, because he later dismissed the claims against the Baptist Children’s Home and withdrew his motion to add Macon Road Baptist Church as a defendant, the second vote became unnecessary. McGee asserts that “the election conducted on November 7, 1999 addressed the exact same questions as the election conducted on October 30, 2008” and that the only difference was the roster of persons entitled to vote in the second election.

The first vote, however, granted McGee the authority on behalf of Bridgewood to pursue claims against Polly Holmes, Kenneth Holmes, and Hawaiian Pools. McGee then dismissed the claims against Hawaiian Pools and added Toni Cox, Gay Dar-den, the Baptist Children’s Home and Macon Road Baptist Church as defendants. The claims against Gay Darden, the Baptist Children’s Home, and Macon Road Baptist Church were later dismissed. The record is clear that the second vote addressed permission to pursue claims' against “Polly Holmes, Kenneth Holmes, and Toni Cox;” it omitted Hawaiian Pools as a defendant and added Toni Cox as a defendant. Thus, the second vote was, in fact, not identical to the first. Moreover, the trial court was entitled to consider the entire convoluted course of the litigation, repeatedly amending the complaint and adding and later dropping as defendants additional church members and other Baptist institutions. In view of all of this, as well- as the considerable passage of time, the trial court had a reasonable basis for its decision to conduct a second vote in order to determine if continuing with the litigation comported with the wishes of the remaining members of Bridgewood.

McGee further asserts that the trial court erred in applying different criteria to determine the members entitled to vote in the second election. For the second election, the members permitted to vote were those who were attending and supporting Bridgewood as of the date the real property was transferred. This criteria resulted in only five members being eligible to vote, two of whom are the defendants Kenneth and Polly Holmes. Considering all of the circumstances, we find that criteria used to determine the roster of eligible voters for the second vote were not unreasonable, and that the trial court did not err in this regard. All other issues raised on appeal are pretermitted.

The decision of the trial court is affirmed. Costs of this appeal are taxed to Appellant, Roger' McGee, and his surety, for which execution may issue, if necessary.

      . The report was signed by Arnold V. Lind-seth, Jr. as Reference Master on behalf of Special Master Armstrong.

      . Less than thirty-five voters cast a vote on this question.


author: HERSCHEL PICKENS FRANKS, P.J.,

text:
    Ralph ALLEY, et al., v. QUEBECOR WORLD KINGSPORT, INC., d/n/a Quebecor World Hawkins, Inc.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 9, 2005 Session.
    July 5, 2005.
    Permission to Appeal Denied by Supreme Court Nov. 28, 2005.

      Russell F. Morris, Jr., and Michael S. Moschel, Nashville, Tennessee, for appellant.
    W. Lewis Jenkins, Jr., Dyersburg, Tennessee, Douglas T. Jenkins, Rogersville, Tennessee, C. Christopher Raines, Jr., Mount Carmel, Tennessee, Charles R. Terry, Morristown, Tennessee, and Mark S. Stapleton, Rogersville, Tennessee, for Ap-pellees.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHEL SWINEY, J., joined.

This is an interlocutory appeal from the Trial Court’s refusal to dismiss the action on the grounds that federal laws preempt a state action. We reverse and dismiss.

In this action the Trial Court overruled defendant’s Motion to Dismiss, and defendant filed an Application for Interlocutory Appeal which was granted by the Trial Court and this Court.

Plaintiffs’ action alleged that Quebeeor was a corporation organized and existing under the laws of California, but with its principal place of business in Kingsport, Tennessee. Plaintiffs worked for the defendant, and alleged that defendant published a notice to them on November 14, 2001, which stated that their plant would be closing as of January 12, 2002. Plaintiffs alleged that as of the date of the filing of the Complaint (November 14, 2002) the plant was still open and operating, and was being run mainly by temporary help. Plaintiffs alleged that defendant intentionally, recklessly, or negligently misrepresented its intention to close the plant, and that several other notices had been published extending the deadline for closure. They concluded that they relied on this representation to their detriment in that they relinquished their “recall rights” for a “pittance of their value” thinking the plant would close.

Plaintiffs further alleged that defendant had committed fraud or promissory fraud in making the statement, and that defendant breached its agreement with plaintiffs by failing to close the plant, and failed to deal in good faith with plaintiffs. Plaintiffs sought compensatory damages, as well as punitive damages.

In defendant’s Answer, an affirmative defense was raised that plaintiffs’ claims were preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and by the National Labor Relations Act, 29 U.S.C. § 151 et seq. Other defenses included waiver, statute of limitations, statute of frauds, and failing to exhaust administrative remedies.

Defendant admitted that it issued notice on November 14, 2001, pursuant to the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., that it had decided to permanently close the Hawkins County plant. It averred that the notice stated that the plant would be entirely closed before May 1, 2002, and the first separation was anticipated to begin on January 12, 2002. Defendant alleged that the notice also said that if the dates needed to be extended, supplemental notice would be given as soon as possible, and that the closure was a phase down of operations, with several stages of separation.

Defendant admitted the plant was still partially operational as of November 14, 2002, but that “all prepress, quality assurance and pressroom operations were shut down” before the Complaint was filed, as well as “majority of the bindery”. Defendant admitted that it had entered into an Effects Bargaining Agreement with plaintiffs’ union on November 29, 2001, but denied that plaintiffs’ action should be certified as a class action.

Subsequently, defendant filed a Motion to Dismiss, asking the Court to dismiss the action because the claims were preempted by 29 U.S.C. § 185 and § 151 et seq., and that plaintiffs were barred by the release entered into in the Effects Bargaining Agreement. The Court entered an Order on November 25, 2003, finding that the Motion to Dismiss was not well-taken and defendant appealed.

Issues on appeal are whether the plaintiffs’ claims are preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the National Labor Relations Act, 29 U.S.C. § 151 et seq.; and whether plaintiffs’ claims are barred by a general release of claims entered into on behalf of the plaintiffs by their bargaining representative?

Defendant argues that plaintiffs’ claims are preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, because plaintiffs’ state law claims deal with the construction of collective bargaining agreements. Section 301 provides that suits for violation of labor contracts are to be brought in federal district court, and the Supreme Court has ruled that this statute “expresses a federal policy that the substantive law to apply in § 301 cases ⅛ federal law, which the courts must fashion from the policy of our national labor laws.’ ” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Thus, the Supreme Court has held that actions involving labor disputes must be brought under § 801 and determined according to federal law, and further that “questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.” Id. at 211, 105 S.Ct. 1904.

In this case, the Trial Court denied the Motion to Dismiss which was based on the preemption argument. In reviewing the denial of a Motion to Dismiss, our Supreme Court has stated:

A Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted tests only the sufficiency of the complaint, not the strength of a plaintiffs proof as does, for example, a motion for a directed verdict. The failure to state a claim upon which relief can be granted is determined by an examination of the complaint alone. The basis for the motion is that the allegations contained in the complaint, considered alone and taken as true, are insufficient to state a claim as a matter of law. The motion admits the truth of all relevant and material averments contained in the complaint but asserts that such facts do not constitute a cause of action. In scrutinizing the complaint in the face of a Rule 12.02(6) motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all allegations of fact therein as true. The motion should be denied unless it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief.

Cook By and Through Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994) (citations omitted).

In their Complaint, plaintiffs alleged fraud/intentional misrepresentation or negligent misrepresentation by defendant in its statements regarding its intention to close the plant. As this Court has previously explained:

When a party intentionally misrepresents a material fact or produces a false impression in order to mislead another or to obtain an undue advantage over him, there is a positive fraud. The representation must have been made with knowledge of its falsity and with a fraudulent intent. The representation must have been to an existing fact which is material and the plaintiff must have reasonably relied upon that representation to his injury.
In commercial transactions the law has recognized a less stringent standard of liability for fraudulent misrepresentations than the common law action for deceit. One who, in the course of his business, profession, or employment, or during a transaction in which he had a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon such information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. This standard of liability substitutes a reasonable care standard for the common law scienter requirement. In other words, in business transactions, a defendant can be held liable for negligent misrepresentations.
In addition to the above developments, our courts have now recognized a cause of action for promissory fraud. However, as the above cases illustrate, the basis for the action for fraud and deceit is still the misrepresentation of the defendant, whether intentional or negligent, and some damage flowing from a justifiable reliance on the misrepresentation.

Holt v. American Progressive Life Ins. Co., 731 S.W.2d 923, 927 (Tenn.Ct.App.1987) (citations omitted). Thus, in order to prove their claims, plaintiffs must show that they were damaged by their reliance on the alleged misrepresentation.

Plaintiffs allege that they were damaged by the fact that they “relinquished their ‘recall rights’ for a pittance of their value”. In order to establish this, the Court must look to the terms of the CBA and the EBA to determine what those recall rights were, what they were worth, and whether they were relinquished in such a way that plaintiffs were injured.

To determine whether Section 301 preemption exists, the Supreme Court and the Sixth Circuit have stated that the court must look at the state law claim and see if its resolution is dependent on analysis of the terms of a collective bargaining agreement-if so, the claim is preempted by federal law. See Allis-Chalmers Corporation.

In Allis-Chalmers, an employee brought an action against his employer alleging bad faith in the handling of his disability claim, when the disability plan was administered by the employer pursuant to a CBA. 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206. The Supreme Court held that “state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are preempted by those agreements.” Id. at 213, 105 S.Ct. 1904. The Court explained that its analysis had to focus on whether evaluation of the tort claim was “inextricably intertwined with consideration of terms of the labor contract.” Id. The Court held that since the right asserted derived from the contract, the determination of liability would necessarily involve contract interpretation. Thus, the claim was preempted. Id.

This rationale has been followed by other federal courts, including the Sixth Circuit. In DeCoe v. General Motors Corp., 32 F.3d 212 (6th Cir.1994), the Court held that a two-pronged test should be used to determine whether § 301 preemption applied to a state law claim. The Court explained that it must first determine if proof of the state law claim required interpretation of CBA terms, then it would determine if the right claimed by the plaintiff was created by the CBA. Id. If the proof requires contract interpretation and the right arises from the contract, then preemption is warranted. Id., see also Martin v. Associated Truck Lines, Inc., 801 F.2d 246 (6th Cir.l986)(state law misrepresentation claims were preempted because merits of allegations had to be evaluated in light of terms used in CBA); Bale v. General Telephone Co. of California, 795 F.2d 775 (9th Cir.l986)(misrepresentation claims were preempted where proof would require showing that terms of CBA were different than what plaintiffs were told); Gibson v. AT & T Technologies, Inc., 782 F.2d 686 (7th Cir.l986)(claim that employer withheld information about plant closing at time of offering supplemental benefits, which allegedly deprived employees of layoff allowances provided for in CBA, was preempted); Moore v. General Motors Corp., 739 F.2d 311 (8th Cir.l984)(employee’s fraud and misrepresentation claims were preempted because injury alleged was violation of transfer rights which existed under CBA).

Adkins v. General Motors Corp., 946 F.2d 1201 (6th Cir.1991), is factually similar, in that plaintiffs alleged that GM and the union colluded in negotiating a CBA which abrogated special seniority rights contained in a prior CBA called the “bridge agreement”. Plaintiffs asserted that they were not told that the new CBA terminated their retreat rights, and were specifically told that the new CBA did not affect the “bridge agreement” rights. Id. The Sixth Circuit Court held that since damages were a necessary element of plaintiffs’ claims, and since the damage alleged was the loss of rights under a CBA, “in order to adjudicate this claim, the court below would have been obliged, at a minimum, to determine that the ‘bridge agreement’ conferred such rights on the plaintiffs, that the subsequent collective-bargaining agreement abrogated those rights”, and thus, because adjudication of the claim was substantially dependent on analysis of the agreements, the claim was preempted. Id.

Plaintiffs rely on Alongi v. Ford Motor Co., 386 F.3d 716 (6th Cir.2004), wherein the plaintiffs alleged that defendant’s agent misrepresented to them that their plant was financially secure and would remain open for at least six more years, and that plaintiffs would be guaranteed positions during that time frame. In finding that plaintiffs’ claims were not preempted, the Sixth Circuit pointed out that said misrepresentations were made after the CBA was negotiated and ratified, and thus these misrepresentations were individual promises and were not part of the CBA. Id. In other words, the allegations did not require the court to apply/interpret terms of the CBA, and therefore the claim was not preempted. Id. The Court explained that this situation was different from Adkins, where the plaintiffs alleged that they were fraudulently induced to sign a contract which forfeited rights allegedly conferred by another labor contract. Id.

The plaintiffs’ claims in this case are basically the same as those in Adkins, i.e. plaintiffs claim that they were fraudulently induced to give up their “recall rights” under the CBA by entering into a different agreement, based on the company’s representation that the plant’s closing was imminent. Analysis of plaintiffs’ claims would require the court to examine the CBA to determine if such recall rights existed and what they were, and then to examine the subsequent agreement to determine if plaintiffs relinquished the same and were injured thereby. Since the proof of the claim would require interpretation of the contract terms, and the right claimed to have been lost arose from the CBA, we conclude, on the foregoing authorities, that the claims are preempted.

Plaintiffs’ breach of contract claims are likewise preempted, because the Contract allegedly breached is a collective bargaining agreement, and not an “individual promise” as defined by Alongi. Plaintiffs’ claims should have been dismissed, and the Trial Court erred in denying defendant’s Motion. We reverse the Judgment of the Trial Court and remand, with the cost of the appeal assessed to plaintiffs.


text:
    Diane WORLEY v. WHITE TIRE OF TENNESSEE, INC., and Gazazbo, L.L.C.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 9, 2005 Session.
    July 22, 2005.
    Permission to Appeal Denied by Supreme Court Nov. 28, 2005.

      Russell W. Adkins, Kingsport, Tennessee, for appellant, Gazazbo, LLC.
    Mark S. Dessauer, Kingsport, Tennessee, for appellant, White Tire of Tennessee, Inc.
    Shelton B. Hillman, Jr., Bristol, Tennessee, for appellee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

The Trial Court entered Judgment for plaintiff for damages from destruction of road over easement- and reformed deed. On appeal, we affirm.

In this action, plaintiff alleged defendants White Tire of Tennessee, Inc.(“White”) and Gazazbo, L.L.C., (“Ga-zazbo”) trespassed on her property or ignored her easement, and slandered her title. Following trial, the Trial Court entered Judgment for plaintiff and all parties have appealed.'

In the Complaint, plaintiff alleged that she had bought a 20 acre tract of land from White Tire and alleged that in the deed White Tire retained the right to use a 50 foot right-of-way to access their adjoining property. Further, that there was a 15 foot wide gravel road inside the easement on the parcel of property that she purchased, and that she used the property from 1993 to April 2000 as both a residence and a commercial trucking operation.

In October 1999, she alleged that White Tire sold the tract it had already sold to plaintiff along with the tract it still owned to Gazazbo. Gazazbo informed plaintiff that it intended to grade over the gravel road and terminate plaintiff’s use of the same, in the face of plaintiffs advices that she was entitled to use the roadway. Further, in April 2000, Gazazbo dug up the gravel road and denied plaintiff access to her home and business.

Additionally, plaintiff alleged that White Tire had misrepresented the location of the gravel road, and that the deliberate destruction of the road, amounted to a slander of title, and she sought judgment for damages and an injunction. After defendants answered denying the allegations of the Complaint, plaintiff amended her Complaint seeking a rescission of the purchase of the property from White Tire, asking for her purchase price plus all cost of improvements.

Following a lengthy trial, the Trial Court entered a Judgment, finding that plaintiff failed to carry her burden of proof regarding rescission, slander of title, or creation of an implied easement. The Court did find that plaintiff was entitled to the reasonable rental value of her property from Gazazbo, with the proper amount to be decided by a special master, and that plaintiff was also entitled to damages of $12,000.00 from White Tire, plus prejudgment interest. The Court reformed the deed to plaintiff from White Tire, to set the boundary line along the path of the old road.

In its Memorandum Opinion, the Trial Court found by clear, cogent, and convincing evidence that there was a mutual mistake of fact with regard to the original deed to plaintiff, such that both parties intended that plaintiff would own the road and not just the 50 foot strip. The Court noted that defendants did not call anyone to refute that testimony, and that Bruce Cross, a part owner of Gazazbo, which was in the business of property development, testified that he did not know where the boundaries were. The Court ordered reformation of the deed from White Tire to Worley so that the boundary would be with the road, and found that Gazazbo was not an innocent purchaser because it was on notice that plaintiff claimed the road was the boundary, yet it proceeded to develop the property at its own risk. Moreover, the development of the property occurred after this action was filed, and after Gazazbo was on notice that this was an issue.

The Court’s Special Master determined that Gazazbo owed rental value to plaintiff of $1,050.99, plus interest, which report was confirmed by the Court. A Final Judgment was entered reflecting these values, and these appeals ensued.

Defendants argue that it was improper for the Trial Court to grant the remedy of reformation when the plaintiff did not plead such in her Complaint.

Plaintiffs Complaint repeatedly asserts that the gravel road was on her property, and that the survey at the time she viewed the property showed the road being on her tract and that all parties to the transaction acknowledged that the road was on her tract. Plaintiff then asked the Court to require defendants to “prepare proper documents for recording recognizing Plaintiffs ownership and/or implied easement in said graveled road”.

As we have held:

While we recognize that the adoption of the Tennessee Rules of Civil Procedure greatly relaxed the requirements as to pleadings, pleading of some facts giving rise to a claim for relief is still a necessary requirement. See W & O Constr. Co. v. City of Smithville, 557 S.W.2d 920 (Tenn.1977). The adverse party is entitled to have sufficient notice to inform him of the allegations he is called upon to answer.

Jasper Engine and Transmission Exchange v. Mills, 911 S.W.2d 719, 720 (Tenn.Ct.App.1995).

In this case, the plaintiff pled facts giving rise to a claim for reformation, and she also asked for that relief in her prayer, though not specifically by name. Given the standard for pleading under the requirements of Tenn. R. Civ. P. 8, we conclude plaintiffs Complaint is sufficient to state a claim for reformation. See, e.g., Adams v. Carter County Mem. Hosp., 548 S.W.2d 307 (Tenn.1977); Williamson County v. Twin Lawn Dev. Co., 498 S.W.2d 317 (Tenn.1973); Lamons v. Chamberlain, 909 S.W.2d 795 (Tenn.Ct.App.1993).

Gazazbo additionally asserts that it was improper for the Trial Court to order reformation where Gazazbo was an innocent purchaser of the property and was not a party to the transaction between plaintiff and White Tire.

We have also previously stated that reformation of a deed for mutual mistake “is an action in equity and will not lie if it affects intervening rights of third persons who actually and justifiably rely upon recorded instruments.” Minton v. Long, 19 S.W.3d 231, 241 (Tenn.Ct.App.1999).

In this case there is no proof that Gazazbo actually and justifiably relied on the recorded instruments. In fact, Cross testified that he purchased the property having no idea where the boundaries were, saw the road and plaintiffs use of same, did not have a survey done until some months after he had purchased the property, and only after the survey learned that the road crossed the corner of his property. Where a party has notice of the mistake, or there are facts/circumstances which would put a reasonable person on notice that a mistake has occurred such that inquiry would be prudent, then that party is typically not considered an innocent purchaser and the deed may be reformed as against that person. Johnson v. Johnson, 67 Tenn. 261 (1874); see also Smotherman v. Blackwell, 222 Ark. 526, 261 S.W.2d 782 (1953); Shelor v. Witt, 69 Ill.App.3d 172, 25 Ill.Dec. 561, 387 N.E.2d 18 (1979); Sargent v. Coolidge, 433 A.2d 738 (Me.1981); Walters v. Tucker, 308 S.W.2d 673 (Mo.1957); Deubel v. Dearwester, 36 Ohio App. 60, 172 N.E. 640 (1930); Zink v. Davis, 203 Or. 49, 277 P.2d 1007 (1954).

With Cross’ admission that, at the time he purchased the property, he did not know where the boundaries were, and observed the road and plaintiffs use, and that it was the only way in to plaintiffs property, the Trial Court correctly concluded that Gazazbo was not an innocent purchaser and that reformation of the deed was appropriate. This issue is without merit.

Finally, Gazazbo argues that the facts do not support reformation, which requires clear and convincing evidence. The proof was that plaintiff and her husband were both told by White Tire’s agent that the roadway/driveway was included in the tract of land they were purchasing. They were further shown survey flags which supported the idea that the driveway was encompassed by their property, and the testimony of plaintiffs daughter and former brother-in-law bolstered this proof. More importantly, the attorney who was employed by White Tire to draw up the deed with respect to this transaction testified that he was told by White Tire’s agent that the roadway was completely within the plaintiffs boundary, and thus there was no need to refer to it in the deed because it was on the tract being conveyed to plaintiff. There is no contradiction of this testimony by any agent/witness of White Tire. Given the state of the record, there was clear and convincing evidence and uncontradicted proof that there was a mutual mistake in the drafting of the subject deed. Therefore, the Trial Court properly granted plaintiff reformation of the deed to comport with the parties’ intent.

Next, defendants argue that the Trial Court erred in admitting parol evidence to contradict the terms of the deed. As our Supreme Court has previously explained:

The general rule is that parol evidence is not admissible to contradict a written agreement ... As said in Brown v. Brown, 45 Tenn.App. 78, 94, 320 S.W.2d 721, the rule announced in many of our early Tennessee cases has been consistently followed. One of these cases is Littlejohn v. Fowler, 45 Tenn. 284, where it was said that parol evidence cannot be admitted to contradict or vary the terms or to enlarge or diminish the obligation of a written instrument or deed, except on grounds of fraud, accident or mistake. (Emphasis supplied).

Clayton v. Haury, 224 Tenn. 222, 452 S.W.2d 865, at 867-8 (1970). Thus, defendants’ contention that parol evidence is normally not allowed to contradict the terms of a written document is correct, except where there is fraud or mistake, as here. In these situations, parol evidence is admissible. Id., see also GRW Enterprises, Inc., v. Davis, 797 S.W.2d 606 (Tenn.Ct.App.1990); Brown v. Brown, 45 Tenn.App.78, 320 S.W.2d 721 (1958). This issue is also without merit.

The Court assessed damages of $12,000.00 against White Tire, apparently based on the estimate plaintiff received regarding the cost of building a new access road. The Court stated that it found that “it was all White’s fault” and thus the Court assessed the damages for the building of the road against White. The evidence does not preponderate against the Court’s award either in the finding of White’s liability, or in the amount of damages assessed. The proof established that White intended to convey the disputed property to plaintiff, but failed to do so, and it failed to rectify the situation when it was brought to its attention. There was no proof to the contrary. Moreover, the amount of damages was based upon an estimate plaintiff received regarding the cost to rebuild the road, and this proof was undisputed by White.

White also argues the Trial Court should not have awarded damages in addition to reformation, because plaintiff was made whole by the award of the disputed property. This argument ignores the fact that plaintiff no longer has an access road to her property where one previously existed, and another road will have to be built, which is an out-of-pocket expense to plaintiff which she would not otherwise have incurred. Plaintiff was not made whole by the reformation alone, and the road was destroyed through no fault of hers, which the Trial Court found to be the fault of White Tire. This issue is without merit.

Plaintiff argues the Trial Court should have found defendants liable for slander of title, and awarded damages accordingly. Brooks v. Lambert, 15 S.W.3d 482, 484 (Tenn.Ct.App.1999), sets forth what a plaintiff is required to prove to establish a successful claim for slander of title. In Brooks, we found that the unsuccessful defendant had a good faith basis for their assertion of title and that they were conveyed the property in question by a purported owner who also owned adjacent property. Id. We found that there was no malice shown when one acted on good faith claim of title, even if the claim was determined to be erroneous. Id. In this case, Gazazbo relied upon the deed given to it by White Tire and the subsequent survey, and while the circumstances should have put Gazazbo on notice regarding the dispute about the roadway before it destroyed the same, the evidence does not necessarily establish malice on Gazaz-bo’s part, since there was evidence of a good faith basis for claiming the property. Likewise, there was no proof that White Tire acted maliciously. The evidence does not support a claim for slander of title.

Further, plaintiff argues that the Trial Court erred in failing to find Gazazbo liable for trespass or intentional destruction of the roadway, but cites no authority for this contention. As we have recognized, “Failure to cite authority for propositions in arguments submitted on appeal constitutes waiver of the issue.” Messer Griesheim Industries, Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474 (Tenn.Ct.App.2003). The only case cited by plaintiff with regard to this issue does not deal with trespass, but does state as follows:

In order for an issue to be considered on appeal, a party must, in his brief, develop the theories or contain authority to support the averred position as required by Tennessee Rules of Appellate Procedure 27(a). ‘Where a party makes no legal argument and cites no authority in support of a position, such issue is deemed to be waived and will not be considered on appeal.”

Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn.Ct.App.2001) (citations omitted). This issue was waived by the plaintiffs failure to cite authority or develop her argument in relation to such authority.

Finally, plaintiff argues that an award of punitive damages was warranted in this case, and that the trial court erred in failing to do so. It is “established law that an award of punitive damages lies within the discretion of the trier of facts.” Whittington v. Grand Valley Lakes, Inc., 547 S.W.2d 241, 243 (Tenn.1977).

The Trial Court in this case found no basis for punitive damages, and this finding is appropriate, since there was no clear and convincing evidence that defendants’ conduct was intentional, fraudulent, malicious or reckless. The Trial Court did not abuse its discretion in failing to award punitive damages in this case. See also, Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992).

We affirm the Judgment of the Trial Court and remand, with the costs of the appeal assessed one-half to plaintiff and one-half to the defendants White Tire of Tennessee, Inc., and Gazazbo, LLC., jointly-

      . The tract plaintiff purchased was part of a larger tract owned by White Tire, of which it retained a portion, so the tract plaintiff owns was not a separately-deeded tract before this transaction.