Gill v. Godwin

• Decision Date: 18 September 1967
• Citation: 442 S.W.2d 661,59 Tenn.App. 582
• Parties: Mary GILL, Appellee-Cross Appellant, v. E. H. GODWIN, Individually, and d/b/a E. H. Godwin & Company, Appellant.
• Court: Tennessee Court of Appeals

Page 661

442 S.W.2d 661

59 Tenn.App. 582

Mary GILL, Appellee-Cross Appellant, v. E. H. GODWIN, Individually, and d/b/a E. H. Godwin &amp Company, Appellant.

Court of Appeals of Tennessee, Western Section.

Sept. 18, 1967.

Certiorari Denied by Supreme Court March 18, 1968.

Graham Moore, Memphis, for appellant.

Frank B. Gianotti, Jr., E. Brady Bartusch, Memphis, for appellee.

CARNEY, Judge.

The defendant below, E. H. Godwin, has appealed from a decree of the Chancery Court of Shelby County awarding judgment, based upon a jury verdict, of $12,000 actual damages and $10,000 punitive damages, totaling $22,000 in favor of the complainant, Mary Gill. The complainant, an elderly colored woman with a fourth grade education, is employed as a domestic in Memphis, Tennessee. The defendant, E. H. Godwin, is in the business of buying and selling real estate and the lending of money on real estate and the buying and selling of notes secured by trusts on real estate in the City of Memphis.

Prior to becoming involved with the defendant Godwin, Mary Gill owned an equity in a very valuable vacant lot located at the corner of Beale and Wellington Streets in Memphis, Tennessee. This was all of her property. She had no income except weekly wages. Defendant E. H. Godwin who sometimes does business under the name of the Loan Investment Company and also E. H. Godwin & Company has a net worth of approximately $450,000 and an annual income of approximately $40,000.

In an opinion of date September 3, 1965, this court found that the defendant, E. H. Godwin, had perpetrated a fraud upon the complainant, Mary Gill, by presuading her to enter into a contract for the erection of a building on her vacant lot at a total price of $45,000 when the said Godwin well knew that Mary Gill had no funds with which to pay monthly interest and principal payments on the first mortgage note of $45,000 except from the monthly rentals from the building; and that at the time of the contract the said Mary Gill had no renters under contract and no reasonable prospect for renters for said building; and defendant Godwin initiated the contract as a part of an immoral scheme to take her lot well knowing that she could not make the monthly payments. The building actually cost Godwin $28,500. He paid $3,000 to a confederate or 'bird dog' to help him close the deal. In two other cases in this court the defendant Godwin has been found guilty of fraud under similar circumstances. See Kneeland v. Bruce, 1960, 47 Tenn.App. 136, 336 S.W.2d 319, and Woodard v. Bruce, 1960, 47 Tenn.App. 525, 339 S.W.2d 143.

By decree of date September 3, 1965, this court ordered the cause reversed and remanded to the lower court for a new trial for the jury or the court to determine: (1) the value of the complainant Mary Gill's lot, less encumbrances, as of the date she entered into the contract with the defendant, E. H. Godwin, and the amount of actual damages she sustained as a result of the loss of said lot by foreclosure, and (2) the amount of punitive damages, if any, which the court or jury might find should be assessed against the defendant Godwin for his fraudulent conduct. Our opinion and decree were upheld and became final on March 7, 1966, when the Supreme Court denied Mr. Godwin's petition for certiorari.

On remand, the cause was tried to a jury in the Chancery Court. The only issues submitted to the jury were those described above and contained in the procedendo from this court. The evidence relating to the circumstances surrounding the execution of the contract between Mary Gill and E. H. Godwin was substantially the same as that contained in the first trial. The jury found the damages to the complainant Mary Gill for the loss of her lot by foreclosure at $12,000 and assessed punitive damages against the defendant Godwin for his fraudulent conduct at $10,000. His Honor the Chancellor allowed interest on the judgment only from the date of the judgment in the lower court after the second trial.

The appellant, E. H. Godwin, has made four assignments of error. Assignments of error I and II insist that it was erroneous for the Chancellor to submit issues No. 1 and 2 to the jury. Solicitor for appellant contends that there were no pleadings justifying the submission of such issues to the jury. This court determined that such order of remand was authorized by our decree of date September 3, 1965, under the facts proven in the case and under the prayer for general relief contained in the original bill. The appellant, E. H. Godwin, made or had opportunity to make insistence in his petition for certiorari to the Supreme Court that the pleadings did not justify such a decree. The Supreme Court denied the petition for certiorari and thereupon the order of remand provided for in our opinion of date September 3, 1965, became final and is the law of this case.

Rogers v. Murfreesboro Housing Authority, 51 Tenn.App. 163, 365 S.W.2d 441; Ernst v. Bennett, 38 Tenn.App. 271, 273 S.W.2d 492; Life & Casualty Insurance Co. v. Jett, 175 Tenn. 295, 133 S.W.2d 997.

Our decree of date September 3, 1965, was final and binding on the lower court and the litigants and the legality or correctness of such decree is not reviewable on this appeal. Assignments of error I and II are respectfully overruled.

Assignment of error No. III...