Pinney v. Tarpley

• Court: Court of Appeals of Tennessee
• Writing for the Court: TODD
• Citation: 686 S.W.2d 574
• Parties: Reba D. Tarpley PINNEY, Plaintiff-Appellee, v. Bobby V. TARPLEY, Defendant-Appellant.
• Decision Date: 07 December 1984

Page 574

686 S.W.2d 574 Reba D. Tarpley PINNEY, Plaintiff-Appellee,
v.
Bobby V. TARPLEY, Defendant-Appellant. Court of Appeals of Tennessee,
Middle Section, at Nashville. Dec. 7, 1984.
Application for Permission to Appeal
Denied by Supreme Court
Feb. 25, 1985.

James C. Cope, Murfreesboro, for plaintiff-appellee.

Larry D. Brandon, Murfreesboro, for defendant-appellant.

ABRIDGED OPINION

TODD, Presiding Judge.

(With concurrence of participating judges, the original opinion has been abridged for publication.)

This appeal involves proceedings to enforce the provisions of a property settlement agreement embodied in a divorce decree. From a decree favorable to the plaintiff, the defendant has appealed.

The parties were divorced on May 19, 1980. The decree approved and included a property settlement executed on March 17, 1980 which provided that defendant would pay and hold plaintiff harmless from a second mortgage of $80,000 on property received by plaintiff. Defendant failed to pay said second mortgage, foreclosure was threatened, and plaintiff was required to refinance both first and second mortgages to avoid foreclosure. Plaintiff filed a "Petition for Contempt and Enforcement of Lien" seeking judgment for $125,000 and a lien upon defendant's property.

Defendant answered the petition admitting his obligation in respect to the second mortgage, but asserting an affirmative defense that the obligation had been discharged by conveying certain property to the plaintiff. Defendant also counterclaimed for damages for breach of an alleged

Page 577

option agreement whereby plaintiff agreed to convey to defendant all of the property received by her in the divorce decree for an agreed price.

The Chancellor awarded plaintiff judgment against defendant for $90,249.23 and dismissed the counterclaim.

Appellant's first issue complains of the finding of the Chancellor that plaintiff's claim was not extinguished by accord and satisfaction.

The property settlement and decree required that defendant pay and hold plaintiff harmless from a mortgage debt upon 5 duplexes which were awarded to plaintiff. The debt was $80,000 at the time of the divorce. Interest was payable quarterly and $10,000 principal was due semiannually. Defendant paid one installment of $10,000 and thereafter defaulted.

Defendant told plaintiff that he was unable to honor his obligation and requested that she "take over" payment of the mortgage. Plaintiff proposed that defendant convey a sufficient amount of property in exchange for a release of defendant from his obligation to pay the mortgage. Defendant proposed that he convey 2 properties, 1446 Bradyville and 1202 Lakeshore. Plaintiff declined, stating that the properties were not worth the 70,000 due on the mortgage. Plaintiff did offer to accept the property plus $10,000 cash.

Thereafter plaintiff met with defendant's attorney who delivered to her two executed deeds to the two properties together with a proposed written settlement agreement. The $10,000 was not tendered. Plaintiff informed defendant's counsel that she would not sign the agreement because "we are not in agreement". She did accept the two deeds and title papers, but left the agreement unsigned with the attorney. She and her husband were obliged to obtain a loan to pay off the mortgage the following day. She placed the deeds in her safety deposit box "so my estate wouldn't be cheated in case something happened", as she was about to leave on a trip. Upon her return she and defendant's attorney resumed negotiations. Defendant's attorney offered $10,000 cash in addition to the property, but plaintiff refused it because of the additional expense of obtaining the new loan to pay off the mortgage. No agreement was ever reached as to the terms of settlement, and the deeds were ultimately returned after the beginning of this suit. She never had the keys to the two properties and never exercised any dominion over them.

In support of his first issue, defendant argues that there was an accord and satisfaction because plaintiff indicated initially what was required to satisfy her, but later changed her mind. The Trial Court found no such enforceable meeting of the minds, and this Court agrees.

Defendant cites Lytle v. Clopton, 149 Tenn. 655, 665, 261 S.W. 664, 1923. This was an action to collect the fee of an associate attorney retained by consent of the client who pled accord and satisfaction which consisted of sending the attorney a note of a third party for $612.00 which the client considered adequate pay. The attorney accepted and collected the note as part payment but insisted upon more. The Supreme Court approved a $10,000 fee for the lawyer and said:

"An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is or considers himself entitled to; and a satisfaction is the execution of such agreement."

....

"To constitute a valid accord and satisfaction it is also essential that what is given or agreed to be performed shall be offered as a satisfaction and extinction of the original demand; that the debtor shall intend it as a satisfaction of such obligation, and that such intention shall be made known to the creditor in some unmistakable manner. It is equally essential that the creditor shall have accepted it with the intention that it should

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operate as a satisfaction. Both the giving and the acceptance in satisfaction are essential elements, and if they be lacking there can be no accord and satisfaction. The intention of the parties, which is of course controlling, must be determined from all the circumstances attending the transaction."

This record does not show that plaintiff accepted the two deeds in settlement. On the contrary, she specifically refused to sign a release and kept the deeds for "security" in the evident hope that defendant would supplement the deeds with an acceptable amount of cash. This is similar to the action of the lawyer in Lytle v. Clopton. He accepted the note but advised the client that it was not in settlement.

Defendant also cites Cole v. Henderson, 61 Tenn.App. 390, 454 S.W.2d 374 (1970). In that case, the debtor sent a check marked "commission in full", and the check was accepted and cashed by the creditor. Based upon TCA 47-15-103 (written contracts prima facie evidence of consideration) and cited authorities, this Court held:

The check sent to this plaintiff was an offer. At first he did not accept it, but he did not reject it, for he kept the offer (check) and the means of accepting the offer (endorsement and cashing) within his power and control. Therefore, the initial offer was a continuing offer, so long as plaintiff had the check. When he elected to endorse the check, he accepted the offer; and the accord was complete. The cashing of the check completed the satisfaction of the accord and the debt affected thereby.

In the present case, there was no such written release; indeed, the plaintiff specifically refused to sign the release.

Moreover, the acceptance of possession of the deeds was not under the circumstances such an act of acquiescence as would bind the plaintiff. The deeds were never recorded; therefore, the defendant remained free to convey the property otherwise. There was no delivery of keys or other indicia of possession or control and, so far as this record shows, the defendant continued to collect rents from the...