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Dezevallos v. Terry Burns Insurance Agency LLC

Court of Appeals of Tennessee, Nashville

April 24, 2018

FISHER DEZEVALLOS
v.
TERRY BURNS INSURANCE AGENCY, LLC

          Assigned on Briefs March 1, 2018

          Appeal from the Circuit Court for Davidson County No. 17C1246Hamilton V. Gayden, Jr., Judge

         Appellee brought a claim against Appellant insurance agency for "unlawfully and fraudulently" withdrawing funds from Appellee's bank account and accepting premium payments on two insurance policies after Appellee allegedly cancelled his policies. Although not asserted as a claim in its general sessions summons, the circuit court, on appeal, awarded Appellee a judgment for unjust enrichment in the amount of $397.00. Because the preponderance of the evidence does not support the judgment, we reverse and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; and Remanded

          Brian F. Walthart, Nashville, Tennessee, for the appellant, Terry Burns Insurance Agency, LLC.

          Roger D. Baskette, Nashville, Tennessee, for the appellee, Fisher Dezevallos.

          Kenny Armstrong, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         Appellee, Fischer Dezevallos, obtained two Allstate insurance policies from the Terry Burns Insurance Agency ("Appellant"). The policies covered two of Appellee's rental properties. In April 2015, Appellee telephoned Appellant and stated that he had obtained replacement policies from State Farm and wanted to cancel his Allstate policies. Appellant informed Appellee that he needed to submit a written notice cancelling his Allstate policies. Appellee failed to personally send the required written notification, but instructed his new State Farm agent to send the necessary information to Appellant to cancel the Allstate policies. Several months later, Appellee discovered that the Allstate policies had not been cancelled and that the premiums for the policies were still being automatically drafted from his account.

         On February 14, 2017, Appellee filed a civil warrant against Appellant in the General Sessions Court of Davidson County alleging that Appellant unlawfully and fraudulently removed funds from Appellee's bank account in the amount of $3, 980.00. Appellee sought "treble damages and attorneys' fees all pursuant to the Tennessee Consumer Protection Act." Additionally, Appellee sought "$10, 000 in damages to [Appellee's] credit due to collection efforts." Following trial, the general sessions court ruled in favor of Appellant and dismissed Appellee's general sessions warrant. Appellee appealed the dismissal to the Davidson County Circuit Court ("trial court").

         On August 28, 2017, the trial court held a bench trial. At the close of Appellee's proof, Appellant moved to dismiss Appellee's negligence and/or professional negligence claims for failure to present proof that established the applicable standard of care, or that Appellant had violated that standard. However, upon the trial court's suggestion, Appellee agreed to "amend to conform to the pleadings on the ground of unjust enrichment from commissions." Thereafter, the trial court granted Appellant's motion to dismiss as to the negligence claim but denied the motion as to unjust enrichment. Following the trial, the trial court entered a judgment against Appellant, stating in relevant part:

Upon testimony in open court it appeared that [Appellee] failed to include an indispensable party pursuant to TRCP 19, namely Allstate Insurance Company, the court having given the [Appellee] the opportunity to nonsuit, the [Appellee] chose to waive that option and proceed limiting their case to unjust enrichment only. From further testimony, the ...

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