Lew Winters v. Southern Heritage Bank

01/25/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 19, 2017 Session

LEW WINTERS v. SOUTHERN HERITAGE BANK

Appeal from the Circuit Court for Bradley County

No. V-12-601 Jerri Bryant, Chancellor1

No. E2016-01679-COA-R3-CV

This appeal arises from an alleged breach of contract. Lew Winters (“Winters”) sued

Southern Heritage Bank (“the Bank”) in the Circuit Court for Bradley County (“the Trial

Court”) for, among other things, breach of contract. Specifically, Winters asserted that

the Bank wrongly backed out of a tripartite agreement involving the Internal Revenue

Service (“the IRS”) which would have allowed Winters to obtain financing for new

tractors and therefore be able to continue operating his trucking company. The Bank

filed a motion for summary judgment, arguing that no such agreement was reached.

Instead, according to the Bank, the parties only engaged in discussions about a possible

resolution. The Trial Court granted the Bank’s motion for summary judgment. Winters

appealed to this Court. We hold, inter alia, that the purported oral agreement violates the

Statute of Frauds. We affirm the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Michael E. Richardson, Chattanooga, Tennessee, for the appellant, Lew Winters.

H. Rowan Leathers and Valerie Diden Moore, Nashville, Tennessee, for the appellee,

Southern Heritage Bank.

1

By interchange.

OPINION

Background

Winters started a trucking company, Ocoee River Transport (“Ocoee”), in the

1990s. The Bank financed a terminal and several tractors and trailers bought by Winters’

company. Winters’ then-wife, Wanda Winters, came to handle the daily financial

operations of the company. Cash flow was an ongoing issue for Ocoee. Mrs. Winters

entered into a factoring agreement with the Bank whereby the Bank paid Ocoee for its

account receivables and the Bank then would collect the receivables. Ocoee pledged all

its account receivables to the Bank, and the Bank set up a suspense account whereby the

Bank collected all receivables or funds paid to Ocoee.

Over the course of time, the economy worsened and Ocoee’s customers were slow

to pay, if they did. In 2006, Mrs. Winters began submitting false invoices to the Bank.

In 2007, Winters learned of the problems facing the company and confronted Mrs.

Winters. Mrs. Winters acknowledged submitting false invoices. Mrs. Winters’

employment with Ocoee ended, and she later pled guilty to a federal charge of bank fraud

arising from the matter.

Winters approached the Bank expressing a desire to rectify the situation and

address the $700,000 deficiency caused by the faulty account receivables. The factoring

agreement was terminated while the suspense account remained in place. As part of a

restructuring of debt, Ocoee entered into a promissory note in September 2007 in the

amount of $2,089,282. This promissory note was secured by a personal guarantee signed

by Winters.

This arrangement continued for some years. In 2011, new problems emerged.

The Bank advised Winters that a minimum payment was coming due. In addition,

problems with the IRS were on the horizon for Ocoee. Winters believed that his business

could perform much better if he could obtain new trucking equipment to ease the

maintenance expense of his aging fleet. However, in order to obtain financing for the

new equipment, Winters and Ocoee had to contend with encumbrances the IRS would

place on the trucks.

On December 6, 2011, a meeting involving representatives of Ocoee, the IRS, and

the Bank took place. Attorney Dale Allen attended the meeting on behalf of Winters.

What, if any, agreement was reached at this meeting is disputed on appeal. In any event,

Winters apparently understood that an agreement had been reached whereby: the Bank

would allow Winters to purchase new tractors without asserting a security interest in the

tractors; the Bank further would refrain from foreclosing upon Ocoee or Winters if he

-2-

continued to allow the Bank to collect payments made to Ocoee as before; and, that an

Offer and Compromise would be submitted in order to work out problems with the IRS.

The purported agreement, if there was one, did not last long. The next day, December 7,

2011, the Bank indicated that it had not agreed to the terms Winters thought were agreed

upon. The IRS thereafter pulled out of talks. The Bank foreclosed upon Ocoee’s assets

and Winters’ personal assets, including his home. Ocoee filed for bankruptcy.

In June 2012, the Bank filed suit in Chancery Court against Winters and his ex-

wife to recover on breach of personal guaranty agreements. In August 2012, Winters

sued the Bank in the Trial Court, alleging, among other things, breach of contract

stemming from the December 6, 2011 meeting. Winters’ complaint stated, in part:

8) The Plaintiff would show that he stepped down as the full-time

operator and corporate officer in charge of the day to day operations of

Ocoee Transport and that his ex-wife took over daily operations. While the

Plaintiff’s ex-wife was in charge of the day to day operations of Ocoee

Transport, the Plaintiff would show that agents of the Defendant bank made

coercive demands upon her and demanded that she begin to factor the

accounts receivables of the Ocoee Transport with the bank, a business

relationship that was not in the best interest of the corporation. Among

other things, the bank charged excessive fees.

9) The Plaintiff avers and charges that actions taken by the bank

caused a adverse effect upon Plaintiff’s business and the Defendant bank

eventually undertook to control the day to day financial operations of

Ocoee Transport.

10) The Plaintiff undertook to re-take control of his corporation’s

activities, but met resistance from the Defendant bank. The Defendant

bank set up a suspense account to control the financial operations of the

corporation and to control all monies coming into and out of the

corporation.

11) The Plaintiff would show that he had personal tax obligations

and had guaranteed corporate debt obligations and the Plaintiff’s personal

exposure was substantially increased by wrongful actions taken by the

Defendant bank.

12) The Plaintiff would also show that the bank manipulated the

corporation’s financial operations so as to keep legitimate tax obligations of

the Plaintiff and the Plaintiff’s corporation, including obligations owed to

the Internal Revenue Service, from properly being paid, to the financial

benefit of the Defendant bank.

13) The Plaintiff was forced to go to the Defendant bank every

business day and obtain the Defendant’s approval as to payment of all

-3-

business expenses, including payroll. The Plaintiff avers and charges that

by taking over the control of the Plaintiff’s corporation’s business

operations, the Defendant bank undertook and owed him a duty, in his

capacity as a shareholder, to properly manage the business and not take

actions that would financially damage his stock ownership interest in Ocoee

Transport.

14) Plaintiff would show that the Defendant breached these duties

and have caused him substantial financial damage.

15) The Plaintiff would show that the bank’s actions in controlling

the financial operations of Ocoee Transport also resulted in the Plaintiff’s

inability to purchase new equipment for his tractor-trailer fleet, which, new

equipment was needed in order to continue to operate the corporation as a

viable going concern. The Plaintiff obtained approval for equipment loans,

but, was unable to secure the loans that were needed to continue the

successful operation of his company due to the wrongful actions taken by

the Defendant bank.

16) The Plaintiff would show that as a proximate result of the

wrongful actions taken by the Defendant bank, he was eventually forced to

place his corporation into a bankruptcy. His stock ownership in the

corporation has lost all value.

17) The Plaintiff would show that he was in the midst of

negotiations with the Internal Revenue Service and representatives of the

Defendant bank to work out a three way agreement which would be

financially beneficial to the Plaintiff, individually, and in his capacity as a

shareholder and corporate officer.

18) The Plaintiff would show that a meeting was conducted at the

Defendant bank on December 06th, 2011, with representatives for the

Plaintiff, the Internal Revenue Service, and agents of the bank.

19) The Plaintiff avers and charges that an Agreement was reached

as an outcome of the December 06th meeting, whereby the Internal

Revenue Service entered into an offer and compromise with the Plaintiff’s

representatives and the Defendant bank, which would be of tremendous

financial benefit to the Plaintiff, individually, and to his corporation.

20) The Plaintiff would show that after that meeting, the Defendant

bank wrongfully breached the Agreement it had entered into with the

Plaintiff and the Internal Revenue Service, as a proximate result of which

the Plaintiff has suffered substantial monetary damages.

21) The Plaintiff would show that representatives of the Defendant

bank made misrepresentations to both him and to agents of the Internal

Revenue Service, which misrepresentations were relied upon, both by the

Plaintiff and the Internal Revenue Service.

-4-

22) The Plaintiff would show that he confronted a representative of

the Defendant bank, after the bank repudiated the Agreement it had entered

into with the Plaintiff and the Internal Revenue Service, at which time the

Plaintiff was told by a Defendant’s representative that the bank had decided

to throw a monkey wrench into the Agreement. The Plaintiff avers and

charges that the Defendant’s breach of contract and tortious misconduct

was done with the express intent of trying to coerce or extort additional

monies out of the Plaintiff, after the bank had reached an Agreement with

the Plaintiff and the Internal Revenue Service.

23) The Plaintiff avers and charges that the Defendant has acted with

extreme bad faith and has violated contractual duties owed to the Plaintiff.

24) The Plaintiff avers and charges that another representative of the

bank has made comments to the effect that it had repudiated the Agreement

entered into with the Plaintiff and the Internal Revenue Service and that the

bank’s representative intended to bury the Plaintiff.

25) The Plaintiff avers and charges that such conduct constitutes

outrageous conduct by the Defendant bank and its’ agents, as a proximate

result of which the Plaintiff has suffered substantial damages.

26) The Plaintiff avers and charges that because of the bank’s

actions, he has suffered substantial personal loss.

27) The Plaintiff would also show that the bank, after breaching his

contractual obligations and others dues [sic] owed to the Plaintiff, later

wrongfully foreclosed upon the Plaintiff’s personal residence, which the

bank had a deed of trust upon.

The Chancery and Circuit Court cases were consolidated. The Bank filed a

motion for summary judgment, to which Winters filed a response. Winters cited, among

other things, the affidavit of attorney Dale Allen in support of his position that an

agreement with the Bank had been reached and later breached by the Bank. The Allen

affidavit stated, in part:

4. During the latter part of 2011, my former partner, J. Eric Butler,

and I performed legal services for Lew Winters. We were negotiating on

behalf of Mr. Winters with IRS in an effort to arrange a payment plan

acceptable to IRS so the Service (particularly the Collection Division)

would not object to or interfere with Mr. Winters’ business plan to obtain

financing for acquisition of new trucking equipment. In our negotiations

with IRS, we were trying to assist the Service’s Revenue Officer in

understanding that Mr. Winters’ acquisition of such new equipment would

enhance his and his company’s ability to satisfy tax debt to IRS.

-5-

5. As legal counsel for Mr. Winters, we understood Mr. Winters and

Ocoee River Transport needed to reduce the maintenance expense they

were incurring on their aging fleet of tractors and related equipment, and

we further understood that Winters had obtained a commitment from

Paccar, a manufacturing company headquartered in Bellevue, WA, which

would enable Winters to purchase a number of new items the purchase of

which would cut his operating expenses considerably and improve his

business model. At the same time, Mr. Winters and Ocoee River Transport

had outstanding loans with Southern Heritage Bank for which Southern

Heritage Bank held security interests in many of the personal assets of Mr.

Winters and the corporate assets of Ocoee River Transport. As Mr.

Winters’ counsel, we understood that to achieve his goals, we had to

reconcile both IRS and Southern Heritage Bank in order to prevail upon

both of them to allow Mr. Winters’ business plans to proceed successfully.

***

8. After considerable discussion, the parties, including Lew Winters,

IRS, and representatives of Southern Heritage Bank, appeared to reach an

agreement at our December 6, 2011 meeting. As I understood the parties’

language, IRS agreed to allow Mr. Winters to submit an Offer in

Compromise allowing IRS to receive installment payments and thereby

deferring imposition of any federal tax liens on equipment to be purchased

by Winters from Paccar. Further, Southern Heritage Bank agreed to allow

Mr. Winters and his company, Ocoee River Transport, to continue with the

same payment schedule they had adhered to in the past using a pre-

established drop box system. This three (3)-way agreement seemed

mutually beneficial to all three (3) parties and was supported by

consideration in that both IRS and Southern Heritage Bank were making

inroads on retiring Ocoee River Transport’s debt to each entity. The

consideration to Southern Heritage Bank was that Winters and Ocoee River

Transport would continue to pay down their debt. Assuming Mr. Winters’

purchase of new equipment, and the related reduction in the monthly

expenses attributable to Ocoee River Transport, it seemed Mr. Winters

would be able to accelerate the payoff of the debt otherwise due the bank.

9. When we departed our meeting of December 6, 2011 at Charlie

Burns’ office, we clearly had a handshake agreement among the attorneys,

the bankers, and the IRS representatives, and my recollection is that Mr.

Butler and I were to continue to work with IRS to complete the

compromise paperwork.

-6-

10. My partner, Eric Butler, and I advised Mr. Winters that we had

reached an agreement at the December 6, 2011 meeting enabling him to go

forward with the purchase of new trucking equipment

11. Surprisingly, Mr. Winters advised us a couple of days later that

Lee Stewart, president of Southern Heritage Bank, had told him that the

bank had decided not to proceed with the above-referenced December 6,

2011 agreement. Sometime later, Southern Heritage Bank appeared to

change its position yet again expressing a desire to go back to the

December 6, 2011 agreement, but by that time, IRS was concerned with the

bank’s conduct and refused to come back to negotiations or to complete an

agreement.

12. Charlie Burns, attorney for Southern Heritage Bank, notified me

that, notwithstanding appearances of an agreement on December 6 that the

bank had decided to commence foreclosure procedures against Mr. Winters.

Attached to my Affidavit as an exhibit is an email dated January 10, 2012

from Charlie Burns to me, indicating that the bank was foreclosing upon

Mr. Winters. It is my understanding that the bank’s actions in initiating

foreclosure proceedings prompted Ocoee River Transport to cease

operations, and further, forced Mr. Winters to file a corporate bankruptcy

for Ocoee River Transport.

The Bank filed a supplemental memorandum of law in which it raised the Statute

of Frauds as an issue, as well, based upon the lack of any writing to come out of the

December 6, 2011 meeting. In July 2016, the Trial Court entered an order granting the

Bank’s motion for summary judgment relative to Winters’ Circuit Court claims. In its

order, the Trial Court stated in relevant part:

The Court, as a result of the pleadings filed in this action and the

Affidavit of Dale Allen, understands that Plaintiff asserts a breach of

contract claim against the Bank based on a contract allegedly arising as a

result of discussions at a meeting occurring on December 6, 2011. This

meeting involved representatives of the Bank, representatives of Plaintiff,

and representatives of the Internal Revenue Service (“IRS”). The Court

understands based on the argument of Plaintiff’s legal counsel that the

Bank allegedly agreed at this meeting to forbear foreclosure of its rights

against Plaintiff pursuant to two Guaranty agreements executed by Plaintiff

in favor of the Bank, to allow Plaintiff to continue with the same payment

schedule that had been adhered to in the past using a pre-established drop

box system, and to allow Plaintiff to purchase new tractors for his aging

fleet. The Court noted that it is undisputed that the parties did not reduce

their discussions at the December 6, 2011 meeting to writing. The Court

-7-

further noted that T.C.A. § 29-2-101 provides that “no action shall be

brought against a lender or creditor upon … any promise or commitment to

lend money or to extend credit, or upon any promise or commitment to

alter, amend, renew, extend, or otherwise modify or supplement any written

promise ... shall be in writing and signed by the lender or creditor, or some

other person lawfully authorized by such lender or creditor.” Additionally

the express language of the two Guaranty agreements require that any

modification to the Guaranty agreements must be in writing to be

enforceable. Therefore Plaintiff has failed to produce admissible evidence

to properly support his claim for breach of contract and accordingly the

same should be dismissed.

Additionally, Plaintiff asserts a claim for bad faith, or breach of the

duty of good faith and fair dealing. Such a claim is limited to the terms of

an enforceable contract. Without an enforceable contract, there can be no

duty of good faith and fair dealing. See Berry v. Mortgage Elec.

Registration Systems, 2013 WL 5634472, *7 (Term. Ct. App. Oct. 15,

2013) (noting that “absent a valid claim for breach of contract, there is no

cause of action for breach of implied covenant of good faith and fair

dealing”). Because the Court has determined that no enforceable contract

exists, Plaintiff cannot assert a valid claim for breach of the implied duty of

good faith and fair dealing and accordingly such claim should be dismissed.

Accordingly,

It is hereby ordered, adjudged and decreed that all of the claims set

forth in Plaintiff’s Complaint are hereby dismissed with prejudice . . . .2

The Trial Court also entered an order granting summary judgment to the Bank relative to

its claims against Winters in Chancery Court. Winters timely appealed to this Court.

Discussion

Although not stated exactly as such, Winters raises the following issues on appeal:

1) whether the Trial Court erred in dismissing Winters’ claim based on the Statute of

Frauds, codified at Tenn. Code Ann. § 29-2-101, and, 2) whether the Trial Court erred in

dismissing Winters’ complaint without considering Winters’ misrepresentation claim

against the Bank.

As our Supreme Court has instructed regarding appellate review of a trial court’s

ruling on a motion for summary judgment:

2

Winters’ claim for outrageous conduct previously had been dismissed.

-8-

Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.”

Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for

summary judgment de novo, without a presumption of correctness. Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist

Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing

so, we make a fresh determination of whether the requirements of Rule 56

of the Tennessee Rules of Civil Procedure have been satisfied. Estate of

Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.

Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when the moving party does not

bear the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

nonmoving party’s claim or (2) by demonstrating that the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the

moving party to support its motion with “a separate concise statement of

material facts as to which the moving party contends there is no genuine

issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a

separate, numbered paragraph and supported by a specific citation to the

record.” Id. When such a motion is made, any party opposing summary

judgment must file a response to each fact set forth by the movant in the

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the

mere allegations or denials of [its] pleading,” but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, “set

forth specific facts” at the summary judgment stage “showing that there is a

genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party

“must do more than simply show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.

Ct. 1348. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

-9-

the nonmoving party. If a summary judgment motion is filed before

adequate time for discovery has been provided, the nonmoving party may

seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has

been provided, summary judgment should be granted if the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

We first address whether the Trial Court erred in dismissing Winters’ claim based

on the Statute of Frauds, codified at Tenn. Code Ann. § 29-2-101. The statute provides

as relevant:

No action shall be brought against a lender or creditor upon any promise or

commitment to lend money or to extend credit, or upon any promise or

commitment to alter, amend, renew, extend or otherwise modify or

supplement any written promise, agreement or commitment to lend money

or extend credit, unless the promise or agreement, upon which such action

shall be brought, or some memorandum or note thereof, shall be in writing

and signed by the lender or creditor, or some other person lawfully

authorized by such lender or creditor.

Tenn. Code Ann. § 29-2-101 (b)(1) (2012).

In a similar scenario, this Court discussed whether the Statute of Frauds was

implicated by an alleged promise to postpone foreclosure as follows:

A promise to complete the loan modification review process and, more

importantly, postpone the foreclosure proceedings would constitute

modifying the “clear and unambiguous” literal terms of the Deed which

provide Citi with clear rights to accelerate the debt and proceed to

foreclosure if the Jacksons defaulted. Dick Broadcasting Co., 395 S.W.3d

at 659. Citi exercised those rights, and the Jacksons sought to modify those

contractual rights by postponing the foreclosure while the review process

was ongoing. Therefore, we hold that the alleged promise to complete the

-10-

loan modification review and postpone the foreclosure does in fact

constitute modifying the Note and Deed, which is a modification of an

agreement to extend or lend credit. Thus, the alleged promise falls under

the respective umbrellas of the Statute of Frauds and the terms of the Note

requiring a signed writing by both parties. A signed writing by both parties

was required to enforce the promise alleged by the Jacksons.

Citi has successfully shown that the record is devoid of any written,

memorialized agreement between the parties that Citi would process the

Jacksons’ loan modification and postpone the foreclosure . . . .

Jackson v. CitiMortgage, Inc., No. W2016-00701-COA-R3-CV, 2017 WL 2365007, at

*7 (Tenn. Ct. App. May 31, 2017), no appl. perm. appeal filed.

It is undisputed that no writing memorialized any purported agreement at the

December 6, 2011 meeting. Winters in his brief “concedes that any action brought upon

any promise or commitment by a banker to alter, amend, remove, extend or otherwise

modify or supplement any written promise must be in writing and signed by the lender.”

However, Winters argues that the agreement did not in any way modify or alter the

guaranty agreement signed by him, and therefore the Statute of Frauds is inapplicable.

Winters instead argues that the agreement, rather than constituting a promise by the Bank

to refrain from exercising its right to foreclosure, entailed that the Bank would continue

to collect his receivables as before.

We find this unpersuasive. Whether the Bank promised not to foreclose, or to

keep up the old arrangement while implicitly agreeing not to foreclose, is a meritless

distinction. If the Bank never renounced its right to foreclose, then Winters had no basis

for complaint when the Bank exercised its right. If the Bank renounced its right to

foreclose, that would constitute a modification of the guaranty and thus implicate the

Statute of Frauds.

In addition to the Statute of Frauds, there are multiple other issues with Winters’

position that an agreement emerged from the December 6, 2011 meeting. It never has

been conclusively established who the three parties to this alleged three-way agreement

were. Did it include Winters or did it include Ocoee as the third party along with the

Bank and the IRS? The precise terms of the agreement never have been identified.

Finally, it is unclear that there was any consideration for the purported agreement.

Winters states that the Statute of Frauds never was properly pled by the Bank in a

responsive pleading. The Bank points out that it raised the Statute of Frauds as an issue

in a supplemental memorandum of law in support of its motion for summary judgment,

-11-

which our review of the record confirms. We, therefore, hold that Winters had sufficient

opportunity to respond to the Statute of Frauds defense raised by the Bank at the

summary judgment stage. However, even if the Trial Court erred in basing its ruling on

the Statute of Frauds, which we have held not to be so, we nevertheless would affirm its

decision regarding the December 6, 2011 meeting for the other reasons discussed above.

As our Supreme Court long ago stated: “[I]f the Trial Judge reached the right result for

the wrong reason, there is no reversible error.” Shutt v. Blount, 194 Tenn. 1, 249 S.W.2d

904, 907 (Tenn. 1952).

The next and final issue we address is whether the Trial Court erred in dismissing

Winters’ complaint without considering Winters’ misrepresentation claim against the

Bank. To recap, Winters’ misrepresentation claim was articulated as follows: “The

Plaintiff would show that representatives of the Defendant bank made misrepresentations

to both him and to agents of the Internal Revenue Service, which misrepresentations were

relied upon, both by the Plaintiff and the Internal Revenue Service.”

Our Supreme Court has instructed as to the elements which must be proven in

order to prevail on a claim for intentional misrepresentation stating:

Our current common-law claim for intentional misrepresentation is

the successor to the common-law action for deceit. First Nat’l Bank of

Louisville v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991). In fact,

“intentional misrepresentation,” “fraudulent misrepresentation,” and

“fraud” are different names for the same cause of action. Concrete Spaces,

Inc. v. Sender, 2 S.W.3d 901, 904 n.1 (Tenn. 1999). In this opinion, we

will refer to the cause of action as a claim for intentional misrepresentation,

and, in order to avoid confusion, we suggest that this term should be used

exclusively henceforth. See Rogers v. Louisville Land Co., 367 S.W.3d

196, 205 (Tenn. 2012) (noting that “intentional infliction of emotional

distress” and “outrageous conduct” were different names for the same tort

and stating that the tort should be referred to as “intentional infliction of

emotional distress”).

To recover for intentional misrepresentation, a plaintiff must prove:

(1) that the defendant made a representation of a present or past fact; (2)

that the representation was false when it was made; (3) that the

representation involved a material fact; (4) that the defendant either knew

that the representation was false or did not believe it to be true or that the

defendant made the representation recklessly without knowing whether it

was true or false; (5) that the plaintiff did not know that the representation

was false when made and was justified in relying on the truth of the

-12-

representation; and (6) that the plaintiff sustained damages as a result of the

representation. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d at

311 (quoting Metropolitan Gov’t of Nashville & Davidson Cnty. v.

McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App. 1992)); see also 8

Tennessee Practice: Tennessee Pattern Jury Instructions—Civil § 8.36, at

357 (11th ed. 2011).

Hodge v. Craig, 382 S.W.3d 325, 342-43 (Tenn. 2012) (footnotes omitted).

Winters asserts that the Trial Court failed even to consider his misrepresentation

claim in its final judgment. Indeed, the Trial Court did not mention it. However, Winters

neither stated in his complaint with any degree of particularity how the elements of

misrepresentation were met, nor had he produced any evidence in support of those

elements by the summary judgment stage. In particular, although Winters alleged, in a

conclusory manner, that the alleged misrepresentations by the Bank were relied upon by

both he and the IRS, Winters never stated the nature of this reliance. Taking Winters’

version of events at face value, on December 6, 2011 the Bank duped him, or rather his

attorney who represented him at the meeting, into believing that he had an agreement

whereby he could obtain new equipment and keep the old arrangement with the Bank

going. According to Winters, the Bank decided to “throw a monkey wrench” into the

plan the very next day. Winters has failed to articulate in what manner he relied on the

truth of the Bank’s representation during that very brief period in which he thought he

had an agreement. Winters states that he felt an assurance that the matter was resolved as

a result of the meeting, but in our judgment a mere fleeting feeling of assurance cannot

establish reliance for purposes of intentional misrepresentation.

There being no genuine issues of material fact in this case, and with the Bank

having made a properly supported motion for summary judgment, we find no error in the

Trial Court’s granting summary judgment to the Bank. We, therefore, affirm the

judgment of the Trial Court.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Lew Winters, and his surety, if any.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

-13-