Parr v. Tower Management ( 1999 )

LORI PARR, SUE MURRAY, )
OLLIE STUART, KEVIN )
SELLERS, MARY LOU DAVY, )
Plaintiffs/Appellants
)
)
)
Appeal No. FILED
01-A-01-9811-CV-00573
v. ) June 23, 1999
) Rutherford Circuit
TOWER MANAGEMENT ) No. 36015 Cecil Crowson, Jr.
COMPANY, CEDAR PARK ) Appellate Court Clerk
MOBILE HOME ESTATES, )
CATHY BORN, ANN SNELL, )
)
Defendants/Appellees. )
)
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CIRCUIT COURT FOR
RUTHERFORD COUNTY
AT MURFREESBORO, TENNESSEE
THE HONORABLE ROBERT E. CORLEW, JUDGE
LORI PARR, Pro Se
1784 West Northfield Blvd., Box 267
Murfreesboro, Tennessee 37129
SUE MURRAY STEWART, Pro Se
1263 Wenlon Drive
Murfreesboro, Tennessee 37130
BARBARA J. PERUTELLI
Schulman, LeRoy & Bennett
501 Union Street, 7th Floor
P. O. Box 190676
Nashville, Tennessee 37219-0676
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This case started with a five page complaint in the Circuit Court of
Rutherford County, Tennessee and expanded to occupy the known universe.
Plaintiffs, Lori Parr, Sue Murray, Ollie Stuart, Kevin Sellers and Mary
Lou Davy, employed attorney, Lawrence H. Hart, to file suit against Tower
Management Company, Cedar Park Mobile Home Estates, Cathy Born, and Ann
Snell, collectively and individually.
Suit was filed December 27, 1995, alleging that Plaintiffs were present
and former lessees of mobile home lots in Cedar Park Mobile Home Estates.
The complaint charged all Defendants with being ". . . deliberately and wilfully
engaged in a course of unfair, deceptive, unlawful and outrageous conduct which
victimized and caused injury to the plaintiffs and other residents of the mobile
home park." Among the practices alleged were unlawful ouster and eviction
from their respective lots, violation of the Tennessee Consumer Protection Act,
intentional infliction of emotional harm, and unlawful ouster under Tennessee
Code Annotated section 66-28-504. Plaintiffs sought treble damages under the
Consumer Protection Act, punitive damages and compensatory damages.
By amended complaint filed December 28, 1995, William Steel, Login
Boggs, and Mary Jane Boggs were added as individual Defendants.
Extensive discovery followed and Plaintiffs ultimately filed a motion
to add additional Plaintiffs while Defendants filed a motion for summary
judgment.
On January 9, 1998, the following order was entered:
This cause came on further to be considered by the
Court on three separate issues, first a motion to add
additional Plaintiffs, opposed by the Defendants; second a
motion of the Defendants for summary judgment, opposed
by the Plaintiffs; and third a joint motion of the parties that
the cause set for trial January 12, 1998 be continued in order
to allow the matter to be presented through arbitration, and
from the entire file in this cause, the Court finds that the first
two motions should be denied and that the joint motion
should be granted.
IT IS THEREFORE ORDERED that the motion to add
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additional Plaintiffs is denied.
IT IS THEREFORE ORDERED that the Defendants'
motion for summary judgment is denied.
FINALLY IT IS ORDERED that the joint motion of the
parties to continue the trial from the setting of January 12,
1998 is granted, and the joint motion to proceed to
arbitration pursuant to the provisions of Tennessee Code
Annotated §29-5-101, et seq. is granted. Further this cause
shall remain on the active docket in this court through May
31, 1998, not subject to further orders of dismissal prior to
that time, subject to further proceedings pursuant to the
provisions of Tennessee Code Annotated §29-5-118.
Costs are reserved pending the entry of the final order
in this cause.
On January 12, 1998, the trial court entered the following order:
As evidenced by signature of counsel for the respective
parties hereto, it is agreed that the parties shall resolve all
disputes by submitting them to arbitration. The Arbitrator
shall determine all issues in this cause including the
assessment of discretionary costs and court costs. The costs
of arbitration shall be shared equally by plaintiffs and
defendants.
With no further orders of the court the case was heard on arbitration by
Judge Joe C. Loser on March 5, 1998. Lawrence H. Hart appeared as counsel for
the plaintiffs and Barbara J. Perutelli appeared as counsel for the defendants All
of the plaintiffs, including Lori Parr and Sue Murray, fully participated in the
arbitration hearing. The arbitrator took the case under advisement and on March
31, 1998, issued a twenty page "arbitration award" finding in favor of the
plaintiffs and against the defendants. In this arbitration award Judge Loser held,
in part:
Thereafter, in 1994, the rules and regulations were
changed by adding rule 6a, which states:
All homes moving into the community must
not be older than eight (8) years old, and approved
by management.
The new rule was interpreted to mean that any buyer of
the plaintiffs' mobile homes, all of which were older than
eight years, would be required to remove the mobile home
from the park. The interpretation caused the plaintiffs'
mobile homes to lose value, for which no compensation was
offered or paid.
Under such circumstances, the action of Cedar Park was
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unfair and deceptive in violation of the Tennessee Consumer
Protection Act, and Cedar Park is thus liable to the plaintiffs,
and each of them, for their "actual damages," which, under
the circumstances of these cases, is either the difference in
value of the mobile home immediately before and after the
changed rule for selling older homes or, if the evidence does
not establish the before and after values, the reasonable cost
of relocating the home to a similar location. The most
credible evidence of the reasonable relocation cost was the
$1,500.00 estimate by Mr. Boggs.
The arbitrator finds the following actual damages to
have been established from a preponderance of the evidence:
Mary Lou Davy, $5,000.00, representing the
difference between the before and after value of
her home;
Lori Parr, $1,500.00, representing the
reasonable cost of relocation;
Sue Murray, $1,500.00, representing the
reasonable relocation cost7; and
Kevin Sellers, $10,500.00, representing the
difference between [the between] the before and
after value of his home.
Additionally, and as the Act provides, each of the
plaintiffs may recover a reasonable attorney's fee not
exceeding one-third of his or her recovery. If the parties are
unable to agree on the reasonable value of the services
provided by plaintiffs' counsel, an additional evidential
hearing may be requested.
The arbitrator finds that the defendants' violation of the
Consumer Protection Act was not willful or wanton. Thus,
this is not an appropriate case for an award of treble
damages.
______________________
7
Ollie Stewart has no separate claim.
On April 15, 1978, the defendants paid the arbitration award, including
attorney fees and one-half of the arbitrator's fee into the Circuit Court of
Rutherford County.
At this point, Plaintiff, Lori Parr, allied with Plaintiff, Sue Murray,
fired their attorney, Lawrence H. Hart, and proceeded thereafter to represent
themselves.
Thereafter, hundreds of pages of documents reflecting little regard for
Rules of Procedure or Rules of Law, are set forth in this record, bitterly second
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guessing the trial tactics of Attorney Hart and attacking, with near equal vigor,
the actions of Attorney Perutelli.
Returning now to the correct procedural and substantive track, it is first
noted that, although Lori Parr and Sue Murray participated and testified in a full
hearing before the arbitrator on March 8, 1998, we are favored with no
evidentiary transcript of that hearing. Keeping in mind that the defendants cast
before the arbitrator have paid the judgment in full into the registry of the court;
and that only certain of the prevailing plaintiffs, who are dissatisfied with their
respective awards seek to disavow the arbitration; we proceed.
Weaving our way through the seemingly endless objections interposed
by Plaintiffs Parr and Murray, we reach the review by the trial judge of the
actions of the arbitrator. The trial judge is bound, as are we, by the stringent
limitations set forth in Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445(Tenn. 1996). Therein, the Supreme Court, in construing the Tennessee
arbitration statutes, held:
We begin with a discussion of the standards of review
to be used by a trial court when reviewing an arbitration
award and by the Court of Appeals when reviewing the trial
court's judgment in an arbitration case. Tennessee has
adopted the Uniform Arbitration Act, Tenn. Code Ann. §§
29-5-301 through 320 (Supp. 1995). This Act "governs the
scope of judicial review of arbitration awards." International
Talent Group, Inc. v. Copyright Management, Inc., 769
S.W.2d 217, 218 (Tenn. App. 1988). For guidance, we can
look to other jurisdictions which have adopted the Uniform
Arbitration Act. Tenn. Code Ann. § 29-5-320 ("This part
shall be so construed as to effectuate its general purpose to
make uniform the law of those states which enact it.").
The standard to be applied by the trial court is a narrow
one. It is well established that courts should play only a
limited role in reviewing the decisions of arbitrators. United
Paperworkers Int'l Union, AFL-CI0 v. Misco, Inc., 484 U.S.
29, 36, 108 S.Ct. 364, 369, 98 L.Ed.2d 286 (1987).
[W]here the party has agreed to arbitrate, he or
she, in effect has relinquished much of [the right
to a court's decision on the merits.] The party still
can ask a court to review the arbitrator's decision,
but the court will set that decision aside only in
very unusual circumstances.
First Options of Chicago, Inc. v. Kaplan, _____ U.S. _____,
_____, 115 S.Ct. 1920, 1923, 131 L.Ed.2d 985 (1995)
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(emphasis added) (citations omitted).2 The trial court is
limited by the provisions of the statute which allow a
vacation or modification of an award. See International
Talent Group, 769 S.W.2d at 218.
__________________
2
While First Options of Chicago concerns the Federal
Arbitration Act, we note that the purpose of the Federal and
Uniform Arbitration Act is the same: to promote private
settlement of disputes, thereby bypassing the courts. As
such, the scope of review advanced by the United States
Supreme Court has equal application in a case under the
Uniform Arbitration Act to the extent that such review
furthers the common goal of the acts.
* **
The limiting language of the statutes governing vacation
and modification of arbitration awards evidences an intent to
limit severely the trial court's authority to retry the issues
decided by arbitration. As the New Mexico Supreme Court
observed in Melton v. Lyon: "It is not the function of the
Court to hear cases de novo and consider evidence presented
to the arbitrators, but rather to conduct an evidentiary hearing
and enter findings of fact and conclusions of law upon each
issue raised in the application to vacate or modify the
award." 108 N.M. 420, 773 P.2d 732, 733 (1989) (citation
omitted). Moreover, the trial court must accord deference to
the arbitrator's award.
Arnold v. Morgan Keegan Co., Inc., 914 S.W.2d 445, 447-48 (Tenn. 1996).
Thoroughly conscious of the limitations thus placed upon his authority
by the Uniform Arbitration Statutes and the construction thereof by the
Tennessee Supreme Court, the learned chancellor held:
The court has considered the provisions of the statutory
and case law, and has determined that all Plaintiffs are bound
by the decision of their attorney to submit the matter to
binding arbitration combined with the participation by these
parties in the arbitration process, that the decision of the
arbitrator must be affirmed, . . .
This holding by the chancellor is clearly correct when the actions of
Lori Parr and Sue Murray are considered in the context of the arbitration
proceeding. While it is true that Attorney Hart could not bind his clients to
compulsory arbitration without their agreement, and the record does not disclose
an affirmative agreement to arbitrate by them, it is equally true that they have
ratified his actions and cannot now be heard to complain about the arbitration.
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The record before this court shows no complaint at all by Parr or Murray until
after the arbitrator disappointed them. The fully participated in the proceeding,
testified before the arbitrator, consulted with their attorney before the arbitrator,
and uttered no protest which would allow the trial court to vacate the award
under Tennessee Code Annotated section 29-5-313 or otherwise. Tenn. Code
Ann. § 29-5-313 (Supp. 1998). No such protest is preserved for appellate
review. As the chancellor held, they cannot acquiesce and indeed fully
participate in the arbitration and then, disappointed with the outcome, disavow
the action of their attorney and agent.
It is an undisputed principle of law that where an agent in the
first place exceeds his authority, or acts without authority,
such acts may become the acts of the principal by
ratification, which may be either expressed or implied. See
1 Am. & Eng. Enc. Law (2d Ed.) p. 1195, and authorities
cited; McClure v. Evartson, 14 Lea, 495; Oil Works v.
Jefferson, 2 Lea, 581; Williams v. Storm, 6 Cold. 207; Evans
v. Buckner, 1 Heisk, 294. It is further well-settled law that,
if a party does not disavow the acts of his agent as soon as he
can after they come to his knowledge, he makes these acts
his own. See Pars. Cont. 49, 50, and authorities above cited.
In the case of Williams v. Storm it is said: "Where the
principal has the option to repudiate the contract or to ratify
it, he is bound promptly to do either the one or the other." 6
Cold. 207. It is stated in all the authorities on these subjects,
however, that, before a ratification can be implied or binding,
the principal must have knowledge of the acts which he is
supposed to ratify. In some of the cases it is stated that he
must have full knowledge, and in others that he must have
knowledge of all the material facts and circumstances. See
1 Am. & Eng. Enc. Law (2d Ed.) p. 1189. It is also held that
knowledge of facts by another agent, where the matter is
within the scope of his agency, is sufficient. See authority
last cited, p. 1192. It is further held that, if the facts show a
ratification, the intention of the parties is immaterial; so that,
to constitute a ratification, it is not material whether a
ratification was contemplated or not. See Hazard v. Spears,
2 Abb. Dec. 353. It has further been held that the conduct of
the principal will be liberally construed in favor of a
ratification or adoption of the acts of the agent (see 1 Am. &
Eng. Enc. Law. p. 1195, and authorities there cited); in all the
cases it being held that, when a knowledge of the transaction
comes to the principal, he must with reasonable promptness
disaffirm the acts of the agent, or he will be held bound
thereby.
Bement & Sons v. Armstrong, 39 S.W. 899, 903 (Tenn. Chan. App. 1896).
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After affirming the decision of the arbitrator, the trial court ordered
distribution of the arbitration award as follows:
IT IS THEREFORE ORDERED that the Court approves
the award determined by the arbitrator. Further it is ordered
that the Clerk shall pay the following sums to the following
individuals: to Plaintiff Parr the sum of $1,220.07; to
Plaintiff Murray the sum of $1,220.07; to Plaintiff Davy the
sum of $4,067.02; and to Plaintiff Sellers the sum of
$8,541.20; to Attorney Hart the sum of $6,166.66 for
attorney's fees, and the sum of $1,261.14 as reimbursement
for out-of-pocket expenses for court reporter fees, advanced
payment to the arbitrator, and long distance telephone
charges; to Arbitrator Loser the sum of $2,190.50,
representing half of the cost of arbitration, which must be
paid by the awards to the Plaintiff. Further it is ordered that
the requests for payment and further reimbursements for
assistance in trial preparation submitted by Plaintiff Parr
must be respectfully denied. Further it is ordered that
Plaintiffs Parr and Murray shall proceed further in this cause
pro se, upon their request, and Attorney Hart is relieved from
further responsibility for representation of these Plaintiffs.
This order entered June 25, 1998, on pages 293-295 in Volume II of the
record, would appear to have been intended by the trial judge as a final
judgment, but 294 pages later, in Volume IV of the transcript under date of
October 26, 1998, the following order appears:
This cause came on to further be considered by the
Court on this the 26th day of October, 1998, upon the entire
file in this cause, from all of which the Court finds that the
pending motions for a new trial, and to alter or amend the
prior judgment must be respectfully denied, and the Order of
June 25, 1998 shall be affirmed, and made the final order of
the Court in this cause, and that all other pending motions
must be respectfully denied.
It is therefore ordered that the Court approves the award
determined by the arbitrator. It is further ordered that the
Clerk shall pay the following sums to the following
individuals:
To Plaintiff, Parr, the sum of $ 1220.07;
To Plaintiff, Murray(Stewart), the sum of $ 1220.07;
To Plaintiff, Davy, the sum of $ 4067.02;
To Plaintiff, Sellers, the sum of $ 8541.20;
To Attorney, Hart, the sum of $ 6166.66 for attorney's
fees, and the sum of $ 1261.14 as reimbursement for out of
pocket expenses for Court Reporter fees, advanced payment
to the arbitrator, and long distance telephone charges;
To Arbitrator, Loser, the sum of $ 2190.50, representing
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one-half of the cost of arbitration (the other one-half having
been previously paid to him by the Defendants).
Further it is ordered that the request for payments and
further reimbursements for assistance in trial preparation
submitted by Plaintiff, Parr must be respectfully denied. All
further pending motions are also respectfully denied.
Costs in the cause, including a $ 30.00 cost of service of
process are taxed against the Defendants up to, through, and
including, all costs of the entry of the June 25, 1998 Order,
but the costs incurred after June 25, 1998 must be paid by
Ms. Parr.
IT IS SO ORDERED AS ABOVE.
Enter this the 26th day of October , 1998.
From this October 26, 1998 order, Lori Parr and Sue Murray appealed.
The voluminous record on appeal reveals neither verbatim transcript
nor Rule 24(c) statement, preserving any evidence heard by the trial judge at any
of the hearings in this case.
This court has held:
Our ability to deal with this issue is hampered by the absence
of either a transcript of the proceedings in the trial court or a
statement of the evidence prepared in accordance with Tenn.
R. App. P. 24(c).
When a trial court decides a case without a jury, it's
findings of fact are presumed to be correct unless the
evidence in the record preponderates against them. Tenn. R.
App. P. 13(d). This court cannot review the facts de novo
without an appellate record containing the facts, and therefor,
we must assume that the record, had it been preserved, would
have contained sufficient evidence to support the trial court's
factual findings. McDonald v. Onoh, 772 S.W.2d 913, 914
(Tenn. Ct. App. 1989); Irvin v. City of Clarksville, 767
S.W.2d 649, 653 (Tenn. Ct. App. 1987); Gotten v. Gotten,
748 S.W.2d 430, 432 (Tenn. Ct. App. 1988).
Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. App. 1992).
Pro se Appellants filed, with the trial court, what purports to be a Rule
24(c) statement of the proceedings before the arbitrator on March 5, 1998. This
document is not approved by the trial judge in conformity with Rule 24(f), and
is not, in fact, a statement of evidence but simply another rambling complaint
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against the lawyers in the case. Typical of its contents is the following:
The plaintiffs Sue Murray and Lori Parr submit the
following statement to the Court of what occurred at the
arbitration hearing of March 5, 1998. No transcript of the
hearing is available because the plaintiffs' former attorney,
Lawrence Hart, refused to comply with the plaintiffs' request
for a court reporter to be present at the arbitration hearing by
stating to the plaintiffs "Who's going to pay for it, are you?
I'm certainly not." Therefore, the plaintiffs' will present to
the Court their recollection of what transpired at the
arbitration hearing with respect to those issues that are the
bases of the plaintiffs' appeal, as per Rules of Appellate
procedure, Rule 24 C.
***
In reference to the defendants' attorney Perutelli's
Response to the plaintiffs' Murray and Parr's Motions To
Make Additional Findings Of Fact, Motions To Alter Or
Amend/Alter Judgment, and Motion For A New Trial, page
3, in regards to plaintiff Murray and Parr's "displeasure",
plaintiffs Murray and Parr do hereby state to this Honorable
Court that the true displeasure of plaintiffs Parr and Murray
are that two officers of the Court - one who was supposed to
be representing and protecting their best interests - instead
chose to fabricate a false story to the arbitrator, to the
plaintiffs, and to the trial Court, eventually deceiving this
Honorable Court into confirming an arbitration award that
was not based upon truth, but instead was based upon false
facts, and deliberate lies.
Without a verbatim transcript of the arbitration proceedings or some
other kind of transcript, the trial court was hardly in a position to review the
award of the arbitrator under the narrow standard of review provided by the
Uniform Arbitration Act. Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d
445, 448 (Tenn. 1996).
As we labor under the same handicaps, along with the additional
handicap of having no transcript of any of the proceedings that occurred before
the trial judge, we have no basis on which to find the decision of the trial judge
to be "clearly erroneous" under the standards applicable to appellate court
review. Arnold v. Morgan Keegan & Co, Inc., 914 S.W.2d 445, 449 (Tenn.
1996).
We have no choice but to affirm the judgment of the chancellor.
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The appellees assert that the trial court was in error in failing to grant
summary judgment to the appellees rather than submitting the case to arbitration.
We affirm the chancellor's decision that material issues of fact existed
and summary judgment was improper.
Defendants seek damages for frivolous appeal.
While it is true that these pro se litigants have burdened the courts and
counsel with a deluge of unnecessary and improper documentation, mostly as to
matters not properly drawn in issue in this case, it must be observed that no
agreement executed by Parr and Murray appears in this record for submitting the
case to arbitration rather than to trial. They are bound by the arbitration because
their voluntary participation therein constituted ratification of the otherwise
unauthorized (as far as the record shows) action of Mr. Hart in agreeing to
arbitration. The application for frivolous appeal damages will be denied.
All costs on appeal are assessed against Lori Parr and Sue Murray and
the judgment of the chancellor is in all respects affirmed. The cause is remanded
to the trial court for the purpose of collecting costs.
_____________________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
______________________________________
BEN H. CANTRELL, P.J., M.S.
______________________________________
PATRICIA J. COTTRELL, JUDGE
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