SK FOOD CORPORATION, ET AL.
Session January 17, 2017
from the Circuit Court for Davidson County No. 15C3254 Thomas
W. Brothers, Judge.
corporations approached a lender seeking to refinance an
existing loan secured by a deed of trust on certain
commercial properties. The parties entered an agreement
specifying that the lender's security interest would be a
"first lien deed of trust" and requiring the
borrowers to pay a nonrefundable "commitment fee."
The borrowers executed the agreement and paid the commitment
fee, but the loan did not close due to the discovery of a
prior lien on one of the properties. The borrowers filed suit
against the lender for damages arising out of the
lender's refusal to lend or to refund the commitment fee.
The trial court granted the lender's motion for summary
judgment but denied the lender's request for
attorneys' fees. Discerning no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
J. Kinsland, Nashville, Tennessee, for the appellants, SK
Food Corporation, J & J International Food Corporation,
and JC Sun Investment, Inc.
C. Sales and Frankie N. Spero, Nashville, Tennessee, for the
Neal McBrayer, J., delivered the opinion of the Court, in
which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
NEAL McBRAYER, JUDGE
March 2013, James G. Sun and his counsel, Vivien Wang,
approached FirstBank on behalf of SK Food Corporation, J
& J International Food Corporation, and JC Sun
Investment, Inc. (collectively, the "Borrowers")
seeking to refinance an existing loan with First Tennessee
Bank. The First Tennessee Bank loan was secured by a deed of
trust on properties located at 5861 Charlotte Pike and 4529
Nolensville Pike in Nashville, Tennessee.
26, 2013, Mr. Sun and his wife, Chon Kim, executed a
commitment letter with FirstBank. The commitment provided for
a loan to Borrowers of up to $3 million secured by the
Charlotte Pike and Nolensville Pike properties and a third
property located at 320 Lellyett Avenue, also in Nashville.
The commitment specified that FirstBank's security
interest would be a "first lien deed of trust." The
commitment also specified that the loan must be closed in
accordance with the terms of the commitment prior to July 27,
connection with the commitment letter, JC Sun Investment paid
a commitment fee of $30, 000. The commitment letter provided
that "[t]he Commitment Fee will be deemed earned
upon the signing of the Commitment and will be
loan did not close. Due to a lien on the 4529 Nolensville
Pike property held by an entity other than First Tennessee
Bank, Borrowers could not grant FirstBank a first lien deed
of trust as required by the commitment letter. A
document signed later by Mr. Sun stated that the
property was "encumbered with a loan from a life
insurance company that precludes second liens."
filed suit against FirstBank in the Circuit Court for
Davidson County, Tennessee, seeking damages for breach of the
commitment letter, conversion of the commitment fee, and
violations of the Tennessee Consumer Protection Act. On
FirstBank's motion for partial dismissal for failure to
state a claim, the trial court dismissed the claim for
violations of the Tennessee Consumer Protection Act and