United States District Court, M.D. Tennessee, Columbia Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
should be a routine skirmish over the enforceability of a
Promissory Note between the maker, Patricia Porter Kryder
(“Kryder”), and the holder, James Kemmler Rogers
(“Rogers”), has escalated into a protracted
battle, with campaigns fought in both state and federal
court. The case was launched with a preemptive strike by
Kryder in the form of a declaratory judgment action in the
Chancery Court of Giles County, Tennessee. The front moved
here, when the case was removed based upon diversity
its fourth year, and before its second federal judge, the
case has survived Rogers. Almost two years after a judicially
conducted settlement conference failed to provide a
negotiated truce, Jennifer Rogers-Etcheverry
(“Etcheverry”), as special administrator of
Rogers' estate, filed a Motion for Summary Judgment (Doc.
No. 136) seeking an end to the conflict. This is her second
such attempt, and the third attempt at partial or complete
summary judgment filed by the parties. Unfortunately,
Etcheverry's Motion will not bring a total halt to the
Complaint filed in the Giles County Chancery Court, Kryder
alleged that, in 2007, she and Rogers entered into a
“landlord/tenant” agreement whereby Rogers would
live in her Lynnville, Tennessee residence in exchange for
providing general care-taking services and paying $1, 500 per
month rent, plus $150 per month for each of the four horses
that Rogers pastured on the land. This was not a typical
landlord/tenant agreement, however. Rogers, who was on a
fixed income, was not required to pay the rent he owed each
month. Instead, the parties would “settle up” at
mutually agreeable intervals when Rogers had available funds.
Complaint also alleges that on January 9 or 10, 2010, Kryder
and Rogers agreed that Rogers would become current and pay
future rent by advancing Kryder a lump sum payment of $50,
000. This agreement was to be set out in a Promissory Note
for that amount, with the understanding that the principal
would be reduced each month as Rogers' rent and pasture
fees became due.
thereafter, on January 11, 2010, a fire destroyed
Kryder's utility building and carport, damaged her house,
and destroyed surrounding landscaping and trees. Kryder
demanded that Rogers reimburse her for “certain
damages” caused by the fire, and Rogers agreed to do so
when he had available funds, including using a frequent flyer
credit card with payment made for Kryder's benefit.
January 15, 2010, Kryder executed a Promissory Note in the
principal amount of $50, 000. Rogers later agreed to advance
Kryder an additional $50, 000. Kryder executed a second
Promissory Note on April 16, 2010 in the amount of $100, 000,
which consolidated the two Notes. As with the prior Note, the
principal was to be reduced each month as Rogers' rent
and pasture fees accrued. It was also to be reduced, Kryder
alleged, by the amount of Rogers' responsibility for the
fire loss, once that amount was finally determined. Kryder
claims that, some time later, Rogers used his frequent flyer
credit card for her benefit in the amount of $56, 633.17,
“which represented his past-due rent and pasture fees
through December 2009.” (Doc. No. 1-1, Complaint ¶
18, 2012, Rogers was seriously injured in an automobile
accident in Giles County and airlifted to Vanderbilt
University Hospital in Nashville. Kryder informed Rogers'
daughter Etcheverry, who was living in California, about the
accident and the extent of her father's injuries.
However, and unbeknownst to Kryder, Etcheverry immediately
boarded a flight to Nashville, rented a van, drove to
Kryder's farm, entered the residence without permission,
and “removed documents, including evidence of the
various business transactions, ‘settling up' of the
rent, and note obligations between Kryder and Rogers.”
(Id. ¶ 19). Etcheverry later “admitted to
law enforcement that she removed the documents and other
property while Kryder was at Rogers' hospital
also alleged that, on June 3, 2012, Etcheverry removed
Rogers' remaining personal property from Kryder's
residence and, thereafter, Etcheverry and Rogers flew on a
private jet to California. Then, on September 12, 2012, and
at a time when Rogers was “mentally incapacitated,
” Etcheverry, through her attorney, sent Kryder a
letter alleging that Kryder had failed to pay interest on the
two Notes, and demanding that the balance be paid with
interest, even though the face of the $100, 000 Note
acknowledged that the $50, 000 Note had been satisfied. This
was followed by another letter dated February 20, 2013, that
demanded Kryder pay the entire April 16, 2010 Note, together
with interest by March 15, 2013. In response, Kryder informed
counsel that Rogers actually owed her at least $40, 000 for
past due rent, pasture fees and damages resulting from the
upon the foregoing, Kryder asserted claims for breach of
contract/procurement of breach; breach of the implied duty of
good faith and fair dealing; and quantum meruit
against Rogers and Etcheverry. She also sought an accounting
and a declaration that Etcheverry and Rogers were obligated
to apply all pre-paid interests, debts for rent and pasture
fees, the damages resulting from the fire to the April 16,
2010 Promissory Note.
the case was removed to this Court on May 16, 2013, Kryder
filed an Amended and Restated Complaint (Doc. No. 80) that
re-alleged the same facts and asserted the same causes of
action. In response, Etcheverry and Rogers filed an Answer
and Counterclaim that was twice amended.
controlling Second Amended Answer and Counterclaim,
Etcheverry and Rogers deny most of the pertinent allegations
made by Kryder. They concede that Kryder and Rogers entered
into an agreement, whereby Rogers would stay at the Lynnville
residence for an indefinite period of time, but claim that he
was not obligated to pay rent, either for himself or his
horses. Rather, Rogers was allowed to live on the property
and pasture his horses there if he helped maintain the
residence and performed general handyman duties, including
mowing the lawn, hauling Kryder's horses, exercising and
feeding the horses, and repairing and maintaining the
and Rogers also concede that Kryder executed two Promissory
Notes in favor of Rogers-one for $50, 000 and the second for
of $100, 000. They claim, however, that the money advanced
via the Notes was not for past or future rents, or to
reimburse Kryder for the damages that allegedly resulted from
the fire. Rather, the first $50, 000 was advanced to Kryder
to pay attorney's fees in her unsuccessful attempt to
contest her parents' will, and another $50, 000 was
advanced to pay additional attorney's fees.
concedes that, upon learning of her father's accident and
hospitalization, (which she claims not to have heard from
Kryder), she flew to Nashville on May 20, 2012, and went to
the Lynnville residence. Etcheverry claims, however, that she
let herself in with a key that her father had provided to her
and that she removed some of her father's personal
belongings, which is the same thing she told the police
officers. On June 3, 2012, while under Kryder's
supervision and with her permission, Etcheverry removed the
remainder of her father's personal property from the
upon the Promissory Notes and the advancement of other money,
the Counterclaim alleges breach of contract and unjust
enrichment. It also seeks equitable relief in the form of a
lien to be placed on Kryder's property, either in the
form of a Deed of Trust in favor of Rogers to secure the
Notes, or a lien lis pendens on the property for at
least the balance of the unpaid interest on the Notes.
Second Amended Answer and Counterclaim was filed by
Etcheverry as the “attorney-in-fact for James Kemmler
Rogers, an incapacitated person.” After Rogers passed
away on June 11, 2014, Etcheverry, on December 11, 2014,
filed a Motion for Substitution (Doc. No. 81) requesting that
she be substituted for Rogers as the Counter-Plaintiff in her
capacity as the Special Administrator of Roger's estate.
By marginal Order dated December 19, 2014, (Doc. No. 82), the
Motion was granted by then-Judge William J. Haynes, who was
presiding over the case at the time. Kryder filed a Motion to
Reconsider (Doc. No. 83), arguing that the Giles County
Chancery Court was the proper jurisdiction for the estate to
present Rogers' claims, and that Kryder, as a creditor,
had filed a Petition to probate Roger's estate in that
court. Judge Haynes rejected Kryder's arguments and
confirmed the substitution by Order (Doc. No. 85) entered
March 9, 2015.
noted at the outset, the matter is before the Court on
Etcheverry's Motion for Summary Judgment and, for that
reason, the allegations made by the parties in the unverified
pleadings are, to a great extent, irrelevant. However, the
Court sets them out in detail because, quite frankly, the
parties' Local Rule 56.01 submissions, and in particular
their respective Statement of Undisputed Facts (Doc. Nos. 138
& 150), are unhelpful. Those filings fail to provide
context, let alone flavor, to the dispute between the
parties. Furthermore, the parties rely on many of the
allegations in advancing their arguments, as if the
allegations were established facts.
only with the foregoing background that one can makes sense
of the limited number of material facts on which the parties
actually agree. Those facts are:
(1) Rogers lived on the Lynnville property from 2007 until he
was injured in an automobile accident on May 18, 2012.
(2) Kryder drafted and executed two Promissory Notes in favor
of Rogers. The first, signed January 15, 2010, was in the
amount of $50, 000. The second, signed April 10, 2010, was in
the amount of $100, 000.
(3) The $100, 000 Promissory Note replaced the previous
and (a) was to be secured by a Deed of Trust; (b) provided
that Kryder would be responsible for attorney fee's,
costs, and expenses if collection proceedings were necessary;
and (c) required Kryder to pay four percent interest per year
on the outstanding principal balance.
(4) The Promissory Note contained no acceleration clause.
Instead, all principal and unpaid interest was to be paid on
or before December 31, 2020.
(5) After execution of the Promissory Note, Rogers advanced
Kryder $56, 633.17 using his frequent flyer credit card.
(6) From May 2010 through December 2011, Kryder made monthly
interest payments to Rogers.
(7) On January 11, 2010, a fire destroyed Kryder's
utility building, carport, landscaping, and trees, and
damaged her house.
(8) In April 2012, Etcheverry stayed at the Lynnville
property and helped her father recover from hip surgery. No
demands were made on the Promissory Note during time.
(9) On September 11, 2012, and again on February 20, 2013,
counsel for Etcheverry sent Kryder a letter requesting
payment to make the Note current.
(10) Rogers died on June 11, 2014, and Etcheverry's
Motion to Substitute was thereafter granted.
(Doc. No. 149-1, Kryder's Reponse to Etcheverry's
Statement of Facts ¶¶ 12, 14-18. 20-22; Doc. No.
153, Ethceverry's Response to Kryder's Statement of
Facts ¶¶ 3, 7, 9-22).
Standard of Review
standards governing summary judgment have been restated on
countless occasions and are well known. It suffices to note:
(1) summary judgment is only appropriate where there is no
genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law, Fed.R.Civ.P. 56(a);
(2) the facts and inferences must be construed in favor of
the nonmoving party, Van Gorder v. Grand Trunk W. R.R.,
Inc., 509 F.3d 265, 268 (6th Cir. 2007); (3) the Court
does not weigh the evidence, or judge the credibility of
witnesses when ruling on the motion, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986); and (4) the mere
existence of a scintilla of evidence in support of the
nonmoving party's position is insufficient to survive
summary judgment, Rodgers v. Banks, 344 F.3d 587,
595 (6th Cir. 2003).
seeks summary judgment on both her counterclaims and on
Kryder's claims. The Court considers Kryder's claims