Gerrish & McCreary, PC v. Carri Chandler Lane

12/05/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 17, 2023 Session

GERRISH & MCCREARY, P.C. v. CARRI CHANDLER LANE

Appeal from the Circuit Court for Shelby County

No. CT-007039-01 Yolanda Kight Brown, Judge

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No. W2022-01441-COA-R3-CV

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Appellant appeals the trial court’s denial of her Tennessee Rule of Civil Procedure 60.02

motion. In 2003, the trial court entered judgment against Appellant and in favor of

Appellee/law firm. In her role as Appellee’s bookkeeper, Appellant committed fraud,

misrepresentation, conversion, and negligence in stealing funds from the Appellee’s

operating account. The 2003 order of judgment also contains a separate judgment for

conversion against Appellant’s then-husband, who is not a party to this appeal. However,

there is no finding of joint-and-several liability in the 2003 order, and Appellant did not

appeal the order. After receiving an extension of its judgment, in July 2021, Appellee filed

a garnishment against Appellant, claiming that the outstanding balance on the judgment,

with interest, was in excess of $1,000,000.00. After the garnishment was filed, Appellant

sought a finding that she should receive a credit against the judgment based on the payment

made by her then-husband in satisfaction of the 2003 judgment entered against him.

Appellant also sought credit for monies paid by Appellee’s bank under a private settlement.

The bank was never sued. The trial court denied the credits on its finding that the bank and

Appellant’s then-husband were neither joint tortfeasors, nor jointly and severally liable.

The trial court noted that any relief from the 2003 judgment for mistake in the omission of

joint-and-several language was time-barred as Appellant failed to bring her Rule 60.02

motion, under subsection (1) for mistake, within the one-year time period contemplated in

the rule. Having determined that there was no joint-and-several liability, the trial court

determined that Appellant was not entitled to credits for either her then-husband’s payment

or the bank’s payment and denied relief under Rule 60.02(4) for satisfaction of the

judgment. Appellant appeals. Discerning no error, we affirm.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Richard Glassman, Lauran G. Stimac, and Brian Garrott, Memphis, Tennessee, for the

appellant, Carri Chandler Lane.

John S. Golwen and A. Alex Agee, Memphis, Tennessee, for the appellee, Gerrish &

McCreary, P.C.

OPINION

I. Background

On November 21, 2001, Appellee Gerrish & McCreary, P.C. (“Gerrish”) filed suit

against Appellant Carri Chandler Lane and her then-husband Michael Shawn Lane.1

Gerrish sued Ms. Lane for fraud, misrepresentation, conversion, and negligence.

Specifically, Gerrish alleged that, as a bookkeeper for Gerrish, Ms. Lane transferred funds

from Gerrish’s operating account to the payroll account and then forged checks paying

herself funds in excess of her salary. Gerrish further averred that Ms. Lane “deposit[ed]

said checks into an account jointly owned and maintained by [Ms. Lane and Mr. Lane] at

a financial institution in Memphis, Tennessee.” As such, Gerrish alleged a cause of action

for conversion against Mr. Lane.

On March 17, 2003, the Shelby County Circuit Court (“trial court”) entered a final

judgment against Ms. Lane in the amount of $632,444.86 for fraud, misrepresentation, and

conversion. The record of the proceedings giving rise to the March 17, 2003 order is not

included in our appellate record, and it is unclear whether the $632,444.86 judgment fully

compensated Gerrish for its losses. At oral argument, Gerrish’s attorney stated that the

$632,444.86 was not the full amount of Gerrish’s loss, but was the amount that Gerrish

could prove forensically at trial. The trial court extended the judgment for ten years in

2013; in January 2023, Gerrish moved to have the judgment extended for an additional 10

years.

In its March 17, 2003 order, the trial court also found Mr. Lane liable for conversion

insofar as he “knew or should have known the funds coming into the parties’ joint account

were far above what he and Ms. Lane were earning as salary … the checks were made

payable to, and at least some, were endorsed by Mr. Lane,” and he “received the benefits

of the embezzled funds.” Based on these findings, the trial court entered judgment of

$44,402.66 against Mr. Lane, but there is no indication in the order that the separate

judgments against Mr. Lane and Ms. Lane were meant to be joint and several. Furthermore,

there is no evidence that Ms. Lane sought relief from the 2003 judgment.

1

Mr. Lane is not a party to this appeal.

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On April 4, 2005, the trial court entered an order of judgment satisfied, stating that

“the judgment rendered in this cause against the defendant, Michael Shawn Lane, together

with any and all post-judgment interest thereon, has been satisfied in full. This order is not

intended, nor shall it be construed, as having any applicability to the separate judgment

rendered against the other defendant in this cause, Carri Lynn Lane.” The certificate of

service on the order of judgment satisfied does not list Ms. Lane as a recipient, so it is

unclear whether or when Ms. Lane was noticed of the order of judgment satisfied.

Meanwhile, Gerrish reached a confidential settlement with Commercial Bank &

Trust (“Commercial Bank”). Gerrish did not file suit against Commercial Bank, and the

settlement was reached through confidential negotiations. As such, Commercial Bank has

never been a party to the civil lawsuit giving rise to the instant appeal, and this record

contains no documentation concerning the nature of Gerrish’s claim against Commercial

Bank or the terms of the settlement.2 We note, however, that the criminal court order, see

infra, states that the settlement amount was $140,000.00.

In a separate proceeding against Ms. Lane in the criminal court, she was ordered to

pay restitution of $566,500.00. On December 14, 2020, Ms. Lane filed a motion for early

termination of probation, wherein she argued that her restitution had been paid in full. On

April 16, 2021, the criminal court granted Ms. Lane’s motion, finding that, as a result of:

(1) $260,000.00 paid by Ms. Lane; (2) $100,000.00 paid by Gerrish’s insurance provider;

(3) $18,000.00 received by Gerrish from Ms. Lane’s retirement account; (4) $140,000.00

received from Commercial Bank; and (5) $44,000.00 Gerrish received from Mr. Lane, Ms.

Lane had completed her restitution. There is no evidence that Ms. Lane presented the

criminal court order to the trial court or otherwise sought Tennessee Rule of Civil

Procedure 60 relief from the 2003 judgment based on the ruling of the criminal court that

she had satisfied her restitution.3

On June 15, 2021, Gerrish filed a garnishment against Ms. Lane reflecting an

outstanding judgment amount of $321,534.54, an interest amount of $740,303.71, and

prepaid costs reimbursement of $49.00, for a total of $1,061,887.25. On February 17, 2022,

Ms. Lane filed a “Motion as to Outstanding Judgment,” wherein she argued (for the first

time in the trial court) that all or part of the judgment against her had been satisfied by Mr.

Lane and/or Commercial Bank, whom she asserted acted as joint tortfeasors with her. On

June 24, 2022, the trial court entered an order denying Ms. Lane’s motion. Specifically,

the trial court found that Commercial Bank and Mr. Lane were not acting as joint

2

At oral argument, Gerrish’s attorney stated that Gerrish’s claim against Commercial Bank was

for breach of the deposit account agreement, i.e., contract, between Gerrish and Commercial Bank. Thus,

Gerrish claims that the amount recovered from Commercial Bank is for an injury separate and apart from

that Gerrish suffered at the hands of Ms. Lane. Furthermore, because the settlement between Gerrish and

Commercial Bank was confidential, Gerrish’s attorney was unclear as to how the criminal court arrived at

the $140,000.00 amount it credited to Ms. Lane.

3

We make no finding as to whether such motion would have been effective.

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tortfeasors. The trial court noted that the March 17, 2003 judgment and the July 21, 2005

order of judgment satisfied did not state that Mr. Lane and Ms. Lane were jointly and

severally liable. The trial court further noted that no Tennessee Rules of Civil Procedure

59 or 60 motions were brought to amend either the 2003 or 2005 judgment concerning joint

and several liability. Finally, the trial court held that because Commercial Bank “was not

made a party to this action, and the Court is not aware of any authority that allows this

Court to consider whether a possible tortfeasor is jointly and severally liable without them

being made a proper party to the action[,]…[t]he Court finds that this is not a situation

where satisfaction from other defendants will preclude [Gerrish] from proceeding against

Defendant Carri Lane.”

On July 13, 2022, Ms. Lane filed a Tennessee Rule of Civil Procedure 60.02(4)

motion to alter or amend the trial court’s order denying her “Motion as to Outstanding

Judgment.” Under rule 60.02(4), Ms. Lane argued that the judgment had been satisfied for

the reasons set out above. By order of September 12, 2022, the trial court denied Ms.

Lane’s motion on the ground that neither Mr. Lane nor Commercial Bank were joint

tortfeasors. She appeals.

II. Issues

Ms. Lane raises the following issues for review as stated in her brief:

I. Did the Circuit Court err, in its June 24, 2022 Order Denying Defendant’s

Motion as to Outstanding Judgment, by holding that Defendant/Appellant

Carri Lane and Defendant Shawn Lane were not joint tortfeasors, subject to

joint and several liability, when the Circuit Court’s 2003 Final Judgment

found that Defendant Shawn Lane “ratified the embezzlement” of

Defendant/Appellant Carri Lane?

II. Did the Circuit Court err, in its June 24, 2022 Order Denying Defendant’s

Motion as to Outstanding Judgment, by holding that Defendant/Appellant

Carri Lane and Commercial Bank and Trust were not joint tortfeasors,

subject to joint and several liability, when Plaintiff/Appellees received a

confidential monetary settlement from Commercial Bank and Trust as a

result of the conversion of Defendant/Appellant Carri Lane?

III. Did the Circuit Court err, in its June 24, 2022 Order Denying Defendant’s

Motion as to Outstanding Judgment and its September 12, 2022 Order

Denying Defendant’s Motion to Alter or Amend, by holding that

Defendant/Appellant Carri Lane’s Motion as to Outstanding Judgment could

not be considered, pursuant to Tenn. R. Civ. P. 60.02(4), when

Defendant/Appellant Carri Lane sought for the Circuit Court to hold that the

Final Judgment against her had been satisfied?

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III. Standard of Review

“In reviewing a trial court’s decision to grant or deny relief pursuant to Tennessee

Rule of Civil Procedure 60.02, we give great deference to the trial court.” Henry v. Goins,

104 S.W.3d 475, 479 (Tenn. 2003). “A Rule 60.02 motion for relief from a judgment is

within the sound discretion of the trial court and the court’s ruling on a Rule 60.02 motion

may not be reversed on appeal unless it is determined that the court abused its discretion.”

Holiday v. Shoney’s South, Inc., 42 S.W.3d 90, 92 (Tenn. Ct. App. 2000) (citations

omitted); see also Turner v. Turner, 473 S.W.3d 257, 268 (Tenn. 2015). An abuse of

discretion occurs only when the trial court has “applied an incorrect legal standard, or

reached a decision which is against logic or reasoning that caused an injustice to the party

complaining.” Henry, 104 S.W.3d at 479 (citations omitted). “The abuse of discretion

standard does not permit an appellate court to merely substitute its judgment for that of the

trial court.” Id.

IV. Analysis

Tennessee Rule of Civil Procedure 60.02 provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party . . .

from a final judgment, order or proceeding for the following reasons: (1)

mistake, inadvertence, surprise or excusable neglect . . . (4) the judgment has

been satisfied, released or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is no longer equitable that

a judgment should have prospective application; or (5) any other reason

justifying relief from the operation of the judgment. The motion shall be

made within a reasonable time, and for reasons (1) and (2) not more than one

year after the judgment, order or proceeding was entered or taken. . . .

In her February 17, 2022 “Motion as to Outstanding Judgment,” Ms. Lane asked the

trial court to “eliminat[e] the outstanding balance of the judgment against her, or in the

alternative, reduc[e] her outstanding judgment by the payments made (1) from Defendant’s

retirement account, (2) by Commercial Bank and Trust, and (3) by Michael Shawn Lane.”

In its June 24, 2022 order, the trial court denied Ms. Lane’s motion. In so ruling, the trial

court reasoned:

1. . . . The Court finds that the Final Judgment entered on March 17, 2003

(the “Final Judgment”) and the Order of Judgment Satisfied entered on July

21, 2005 (the “Order of Judgment Satisfied”) do not find that Defendant and

Shawn Lane are jointly and severally liable, and the separate judgments

entered against each of them are vastly different. The Order of Judgment

Satisfied also decreed that Defendant Shawn Lane has satisfied the judgment

rendered against him and specifically stated that “this order is not intended,

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nor shall it be construed, as having any applicability to the separate judgment

rendered against the other defendant in this cause, Carri Lynn Lane.” This

Court finds that any confusion in the wording of this Court’s ruling as it

relates to the Final Judgment was made clear in the Order of Judgment

Satisfied. The Court finds that the judgments entered against Defendant and

Shawn Lane were separate.

2. This Court may have considered this position at least as to the conversion

claim and specifically found that Defendant and Shawn Lane acted in concert

and found them jointly and severally liable for the amount of damages due

to the conversion and specifically notated what portion of the judgment

amount against Defendant, i.e., the same amount of $44,000.00, was

attributable to conversion. However, no motion was brought to alter or

amend the Final Judgment or The Order of Judgment Satisfied pursuant to

Tennessee Rule of Civil Procedure 59.04 or Rule 60 for mistake, and the time

to bring such motions [has] expired.

3. The Court finds that [Commercial Bank] was not made a party to this

action, and the Court is not aware of any authority that allows this Court to

consider whether a possible tortfeasor is jointly and severally liable without

them being made a proper party to the action and the Court making a finding

that they are jointly and severally liable.

4. The Court finds that this is not a situation where satisfaction from other

defendants will preclude Plaintiff from proceeding against Defendant Carri

Lane.

5. The Court finds that credit has already been given for the $18,517.76 paid

from Defendant’s retirement account on January 10, 2005.

6. For the foregoing reasons, the Court finds that the Final Judgment against

defendant should not and is not satisfied, eliminated, or reduced by the

Shawn Lane Payment, the [Commercial Bank] Payment, or the Retirement

Fund Payment.

In her July 13, 2022 motion for relief from the June 24, 2022 order, Ms. Lane

requested the trial court to “reconsider whether Defendant is entitled to relief from the

outstanding judgment as a result of satisfaction of part of the judgment by Michael Shawn

Lane, a joint tort-feasor, because her Motion as to Outstanding Judgment was timely filed

pursuant to Tenn. R. Civ. P. 60.02.” In its September 12, 2022 order denying Ms. Lane’s

motion, the trial court held that:

1. The Court’s June 24, 2022 Order Denying Defendant’s Motion as to

Outstanding Judgment was proper where the Court determined based on a

review of the relevant filings, including the Order of Judgment Satisfied

entered on June 21, 2005 as to Defendant Michael Shawn Lane (“Shawn

Lane”), that the civil judgments against Shawn Lane and Defendant Carri

Lane in favor of Plaintiff were separate and not as joint tortfeasors. As such,

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there can be no part of the Final Judgment against Defendant that has been

satisfied. Consequently, Defendant’s argument that the Court correctly found

Defendant and Shawn Lane to be joint tortfeasors is contrary to this Court’s

previous findings and orders. As a result, Tenn. R. Civ. P. 60.02(4) has no

application.

2. The Court’s Order Denying Defendant’s Motion as to Outstanding

Judgment indicated that it may have reconsidered the position at least to the

conversion claim; however, this would fall under Tenn. R. Civ. P. 60.02(1)

for mistake and not because the Final Judgment was satisfied. The Court

would first have to be in a position to correct the “mistake” if there is found

to be one before it could make any determination that a judgment was

satisfied. However, the Tenn. R. Civ. P. 60.02(1) motion was not brought

within a year of the Final Judgment and is time barred. Further, it is time

barred under Tenn. R. Civ. P. 59.04 as it was not filed and served within 30

days of the entry of the Final Judgment.

We agree with the trial court’s analysis. Insofar as Ms. Lane seeks relief from the

2003 final judgment under Rule 60.02(1) for the court’s alleged error in mistakenly or

inadvertently omitting a finding of joint-and-several liability concerning the separate

judgments against Mr. Lane and Ms. Lane, Ms. Lane’s motion is untimely. Rule 60.02

requires that motions for relief from orders on the grounds of mistake or inadvertence must

be brought “not more than one year after the judgment, order or proceeding was entered or

taken . . . .” Here, Ms. Lane’s motion was brought nineteen years after entry of the 2003

final judgment. At this late date, Rule 60.02(1) cannot operate to amend the trial court’s

2003 order to include a statement of joint-and-several liability as to the separate judgments

against Mr. Lane and Ms. Lane, and we cannot imply such holding in the absence of

language to support it. See Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977)

(“No principle is better known than that which states that a Court speaks through its

orders[.]”). In the absence of joint-and-several liability, we can only conclude that the

judgments against Mr. Lane and Ms. Lane were separate and distinct. As such, Ms. Lane

is not entitled to a credit against her judgment for Mr. Lane’s $44,000.00 payment.

Now, as to the settlement Gerrish received from Commercial Bank, as noted above,

Commercial Bank was not a party to the underlying lawsuit. As such, there can be no joint-

and-several liability vis-à-vis Commercial Bank. However, Ms. Lane argues that the

doctrine of one loss/one recovery applies such that she should receive a credit for the

amount Commercial Bank paid to Gerrish. As this Court has explained:

It is axiomatic that a plaintiff may not recover double redress for a single

wrong. See Miller v. United Automax, 166 S.W.3d 692, 697 (Tenn. 2005);

Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 906 (Tenn. 1999); Shahrdar

v. Global Housing, Inc., 983 S.W.2d 230, 238 (Tenn. Ct. App. 1998)

(“Whether the theory of recovery is breach of contract, intentional

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misrepresentation, or promissory fraud, if the damages claimed under each

theory overlap, the Plaintiff is only entitled to one recovery.”).

Reinhart v. Knight, No. M2004-02828-COA-R3-CV, 2005 WL 3273072, at *2 (Tenn. Ct.

App. Dec. 2, 2005), perm. app. denied (Tenn. April 24, 2006). There are two problems

with the application of the foregoing doctrine in this case.

First, although “where there is only one injury the law permits only one recovery,”

TSC Indus., Inc. v. Tomlin, 743 S.W.2d 169, 172 (Tenn. Ct. App. 1987), here it is not

clear whether the injury Gerrish sustained from Commercial Bank’s actions/inactions was

a separate and distinct injury from that sustained at the hands of Ms. Lane. As noted above,

it appears that Gerrish’s claim against Commercial Bank sounded in contract, not in the

fraud, misrepresentation, conversion, and negligence that were Gerrish’s claims against

Ms. Lane. However, without the record of the 2003 proceedings (which are not included

in our appellate record), there is insufficient evidence from which we could infer that the

injuries caused by Commercial Bank and Ms. Lane were one and the same.

Second, from the record, we cannot determine whether the $632,444.86 judgment

against Ms. Lane fully compensated Gerrish for its losses. In fact, at oral argument,

Gerrish’s attorney stated that Gerrish’s losses were much greater than the $632,444.86, but

this was the amount that Gerrish could prove through forensic evidence. In the absence of

the 2003 record, we cannot conclude that Gerrish was fully compensated in this case, much

less that it received any overlap in recovery.

Having determined that Ms. Lane is not entitled to credit for either Mr. Lane’s

payment or the Commercial Bank settlement, the judgment against her remains in effect,

and the relief offered under Tennessee Rule of Civil Procedure 60.02(4) (“the judgment

has been satisfied, released or discharged. . .”) is not available.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded

for such further proceedings as may be necessary and are consistent with this opinion.

Costs of the appeal are assessed to the Appellant, Carri Chandler Lane, for all of which

execution may issue if necessary.

S/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

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