Book Review – Tennessee Law of Civil Trial by Attorney John Day

Many of you who practice law in Tennessee have read and used books by attorney John Day as a resource in your law practice.  These books include Day on Torts: Leading Cases in Tennessee Tort Law and Tennessee Law of Comparative Fault.  I have used both of these books on numerous occasions.  The good news is John Day now has a new book called, “Tennessee Law of Civil Trial.”  This can be added to your list of helpful Tennessee specific law books written by attorney John Day.  He sent me a copy and requested I write a review and it has been a good experience.

The main purpose of this book is to clearly outline the “Law of Civil Trial” in Tennessee in a concise helpful way.  John Day points out, as many of us have come to realize, that there are significantly less trials in Tennessee than there were in the past (I have blogged about this issue previously).  As a result, less and less attorneys have significant civil trial experience and therefore he felt a resource would be helpful for those attorneys who still occasionally go to trial but may not have the trial experience a lot of attorneys had in the past.  I think this is the primary value of this book.  The secondary value is to provide a helpful reference on specific topics for more experienced attorneys who have tried many cases.  This group of attorneys can still benefit from this book because it provides a refresher course on certain topics.  I will be placing this book in my firm’s library because it is a resource that can be taken to trial or reviewed prior to trial to remind you of certain trial concepts that we may not use on a day-to-day basis. 

This book discusses many different areas and I think it is helpful for you to know the topics so you can better understand the scope of this book.  This book provides chapters on the following topics:

            1.          Scheduling orders

            2.          Final Pretrial Conferences

            3.          Motions in

Can the Sale of Real Property Be Enforced When Title to Property Was Not Held By Seller at Time of Transaction, but is Later Acquired?

The Tennessee Court of Appeals’ case of Gary Atchley v. Tennessee Credit, LLC, No. M2013-00234-COA-R3-CV, 2014 WL 4629042 (Tenn. Ct. App. 2014), discussed the doctrine of “after-acquired-title” under Tennessee law.  This case is relatively straight forward.  On September 22, 2009, the plaintiff purchased from Tennessee Credit, LLC a piece of real property for $18,000.00.  At that time he signed and presented the $18,000.00 check to Tennessee Credit, LLC.  The problem was, Tennessee Credit, LLC did not actually own the property at the time of the sale.  Tennessee Credit, LLC did have the right to foreclose on the property at the time of the sale but they had not done this yet, so they did not actually own the property.  It was not until December 4, 2009 that Tennessee Credit, LLC actually owned the property.

After Tennessee Credit, LLC obtained title, the purchaser desired to rescind the transaction and demanded a refund of the $18,000.00 paid to Tennessee Credit, LLC.  This Tennessee Court of Appeals’ decision ultimately agreed that this contract could be rescinded and the $18,000.00 should be refunded to the purchaser.  The Trial Court said it best, “you can’t sell property you don’t own . . .”.  Atchley at 2.  The Appellate Court reviewed some very old Tennessee decisions from the early 1900’s and 1800’s in order to decide this case.  There has not been case law on the “after-acquired-title” doctrine at issue in this case in the last 80 years.  Tennessee Credit, LLC attempted to argue the principal of “after-acquired-title” which would allow them to enforce the transaction because they acquired the title after the transaction.  The Tennessee Court of Appeals rejected this argument and stated as follows: 

When Mr. Dunn advertised Ms. Roller's property for sale and attempted to sell the property to Mr. Atchley, he knew Tennessee Credit did not have title to the property. Like the executor in Woods, Mr. Dunn's representation that he had a right to sell Ms. Roller's property was a “species of fraud.” Therefore, in keeping with the principles announced in Woods, we do not believe Mr. Atchley should be compelled to take the after-acquired-title from Tennessee C...

Is a Contract Enforceable When Person Who Does Not Understand English Signs a Written Contract in Tennessee?

The recent Tennessee Court of Appeals’ decision of Advantage Windows, Inc. v. Oscar Zacarias, No. E2014-00122-COA-R3-CV, 2014 WL 4403106 (Tenn. Ct. App. 2014) discussed the validity of a signed contract when the individual who signed the contract does not understand English.  In the Zacarias case, an agreement was signed between a homeowner and the plaintiff construction company to perform certain work on the residence.  The homeowner never paid for the work.  Therefore, the construction company sued the homeowner for breach of contract.  The homeowner filed a counter-claim asserting he only had a limited understanding of English and that the alleged contract was actually explained to him as an “estimate”.  The Trial Court found that because the preponderance of “evidence established that Mr. Zacarias did not know or understand the English language, [t]here was no meeting of the minds and no way for Mr. Zacarias to form a binding contract with Advantage Windows.”  Advantage Windows at 2.  This case was appealed to the Tennessee Court of Appeals.

The Tennessee Court of Appeals found that in order to have a binding contract, the “contract must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.”  Advantage Windows at 3.  The Court then noted that T.C.A. § 47-50-112(a) provides a statutory presumption that a signed written agreement contains the intentions of the parties and that the individual who signed the agreement agreed to be bound by those terms.  T.C.A. § 47-50-112(a) provides in pertinent part as follows: 

(a) All contracts, including, but not limited to, notes, security agreements, deeds of trust, and installment sales contracts, in writing and...