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05/12/95 N. THOMAS PURSELL v. FIRST AMERICAN

May 12, 1995

N. THOMAS PURSELL, JR., PLAINTIFF/APPELLANT,
v.
FIRST AMERICAN NATIONAL BANK, CHARLES WHITE, ANITA WHITE, AND CHARLES BAGSBY D/B/A TENNESSEE AUTO RECOVERY, DEFENDANTS/APPELLEES.



APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE. No. 92C-95. THE HONORABLE WALTER C. KURTZ, JUDGE.

Samuel L. Lewis, Judge. Concur: Henry F. Todd, Presiding Judge, M.s. Ben H. Cantrell, Judge.

The opinion of the court was delivered by: Lewis

Plaintiff, N. Thomas Pursell, Jr., has appealed from the trial court's grant of defendants' summary judgment and dismissal of his claim under the Tennessee Consumer Protection Act (TCPA) and the trial court's grant of defendants' motion for directed verdict on his claim of outrageous conduct.

The case was tried to a jury on plaintiff's claims of breach of contract, conversion of personal property, conversion of a vehicle, promissory fraud, intentional misrepresentation, negligent misrepresentation, negligence, outrageous conduct and punitive damages, and on defendants' counter-claim for breach of contract. The court directed a verdict in favor of plaintiff on First American National Bank's (First American) counter-claim and directed a verdict in favor of First American on plaintiff's claims of negligent misrepresentation, outrageous conduct, and negligence other than alleged negligence with respect to plaintiff's personal property.

The jury awarded plaintiff $3,350.00 in compensatory damages against defendant First American and $500.00 against defendant Tennessee Auto Recovery, but found in defendants' favor on plaintiff's punitive damage claim. The verdict form and the jury's findings are as follows:

1. Was Tennessee Auto Recovery (Charles White and Anita White) liable for injury or damage to Plaintiff?

ANSWER: Yes.

2. What is the amount of Plaintiff's damages proximately caused by Tennessee Auto Recovery or its employees?

Amount in dollars.

ANSWER: $500.00

3. Was First American liable for injury or damage to the Plaintiff?

ANSWER: Yes.

4. What is the amount of Plaintiff's damages proximately caused by First American Bank or its employees or agents? Amount in dollars.

ANSWER: $3,350.00

5. In assessing damages in Question No. 4 above, did you find the bank liable on the claim for conversion or fraud?

ANSWER: Yes.

6. Has the Plaintiff proven by clear and convincing evidence that the Defendant, First American Bank, acted either (1) Intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly so as to be entitled to punitive damages against the bank?

ANSWER: No.

This case involves the repossession of a truck owned by the plaintiff which he had financed through defendant First American National Bank. Plaintiff borrowed $19,600.00 from First American to purchase a 1990 Chevrolet truck on a 120 day promissory note dated 18 October 1989. When the promissory note matured, plaintiff reduced the principal and paid the accrued interest and executed a Loan and Security Agreement on 20 February 1990 in the principal amount of $15,600.00. Payments on this note were to be made on the 25th day of each month, beginning 25 April 1990.

Plaintiff became a total of three payments past due on his note payments to defendant First American, beginning with the 25 October 1991 payment.

Defendants contend that First American attempted to call plaintiff, but he either never returned the calls or returned the calls and promised to make payments which were never made. Plaintiff had dealt with JoAnne Jackson of First American in the making and servicing of his loan; however, she was on leave of absence when the events in question took place. Defendants argue that plaintiff had promised Ms. Jackson that he would bring the truck to the bank if the bank deemed that necessary. He further agreed that if the account became delinquent, he would make the past due payments or surrender the truck. Plaintiff also contends that he made the agreement with Ms. Jackson that should it become necessary, he would voluntarily surrender the truck. Plaintiff argues that, under the circumstances, there was no need for First American to forcibly repossess the vehicle, causing him to incur repossession fees and expenses. Defendants contend, however, that after repeated attempts to reach plaintiff failed and upon plaintiff's failure to cure the default payments, First American had defendant, Tennessee Auto Recovery (TAR) repossess the vehicle which was effected without a breach of the peace on 10 January 1992. That same day, plaintiff, contacted First American in an attempt to redeem the truck. Plaintiff was informed that he would be required to pay $3,487.68 to redeem the vehicle. This amount included three past due monthly payments, three advance payments to reduce the principal loan balance, a repossession expense of $250.00, and a late charge of $45.80.

The dispute in this case arose on 10 January 1992 when the plaintiff went to TAR to obtain personal items contained in the truck after it had been repossessed. TAR requested that plaintiff sign a release of liability which purported to release TAR, its agents, assigns, and subsidiaries from liability with respect to any personal property that was or may have been in the automobile at the time it was repossessed. Plaintiff argues that TAR refused to allow him to examine his personal property before signing the release in order to determine if any items were damaged or missing. Defendants contend that plaintiff would have been afforded the opportunity to inspect his property before signing the release form, but he did not avail himself of the opportunity. Defendants further contend that plaintiff could have made modifications to the release document, which TAR would have reviewed to determine if they were acceptable. However, plaintiff, accompanied by his lawyer and brother, Ron Pursell, refused to sign the document.

On 13 January 1992 plaintiff spoke to Ms. Jackson in order to work out a redemption of the repossessed truck. Ms. Jackson gave plaintiff a redemption figure of $3,487.68 which plaintiff paid by check that day. Plaintiff returned to TAR that day to claim his vehicle and personal property. Plaintiff provided TAR with the receipt evidencing redemption payment to First American; however, TAR refused to return the truck and its contents because plaintiff again refused to sign the release of liability. TAR also informed plaintiff that he owed an additional amount of $20.00 in storage fees in order to recover his vehicle. Plaintiff refused to pay the fee or to sign the release.

Plaintiff and defendants attempted to work out a compromise whereby Jim Reed Chevrolet would inspect the vehicle to determine if it had been damaged as a result of being towed when it was repossessed. However, another dispute arose over this procedure. TAR contends that its understanding was that someone was to receive the vehicle and sign a receipt or release form, either at the time of its delivery to Jim Reed Chevrolet, or when it was turned over to plaintiff However, when the wrecker truck driver arrived to deliver the truck to Jim Reed, the driver knew nothing about paying storage, signing for the truck, or returning the truck to TAR after Jim Reed's inspection. TAR and the wrecker driver attempted to call plaintiff, but were unable to reach him. According to the testimony of a TAR employee, plaintiff instructed the driver from Donelson Wrecker to tow the truck to Jim Reed, leave it there and call plaintiff. Based on this occurrence, First American and TAR decided that plaintiff should come to TAR and sign the release, noting ...


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