Wall v. Thalco, Inc.

• Decision Date: 03 February 1981
• Citation: 614 S.W.2d 803
• Parties: Cordell WALL, Plaintiff-Appellee, v. THALCO, INC., et al., Defendants-Appellants.
• Court: Tennessee Court of Appeals

Page 803

614 S.W.2d 803

Cordell WALL, Plaintiff-Appellee, v. THALCO, INC., et al., Defendants-Appellants.

Court of Appeals of Tennessee, Middle Section.

Feb. 3, 1981.

Permission to Appeal Denied by Supreme Court April 27, 1981.

Abridged Opinion May 8, 1981.

Robert Huskey, Manchester, for plaintiff-appellee.

Walter Clark, Jr., Nashville, for defendants-appellants.

ABRIDGED OPINION

TODD, Presiding Judge.

This is a suit for breach of contract whereby plaintiff sold to defendant, Rosa Thalmann, his stock in Thalco, Inc. and defendant, Thalmann, agreed to obtain the release of a lien upon a certain ten (10) acre tract and have Thalco reconvey said tract to plaintiff. Plaintiff had conveyed the land to Thalco to enable Thalco to borrow money on it. Thalco was obligated to reconvey the land to plaintiff after satisfying the loan.

In a formal appeal, this Court upheld the rights of plaintiff to said release of lien and reconveyance and concluded:

This record contains inadequate information to enable this Court to fix damages due plaintiff for the failure to obtain the release of the lien. The cause will therefore be remanded for ascertainment of such damages.

On remand the Chancellor awarded damages of $96,500 against defendant, Thalmann, and she has appealed.

Appellant first insists that the Chancellor had no jurisdiction to enter judgment because there was no compliance with T.R.A.P. Rule 43(c) as follows:

(c) Remandment. When the appellate court remands the case for a new trial or hearing and the mandate is filed in the trial court, the case shall be reinstated therein and the subsequent proceedings conducted after at least 10 days notice to the parties.

T.C.A. §§ 21-1-810 and 21-1-811 provide as follows:

21-1-810. Reinstatement of remanded cases. In all cases remanded by the Supreme Court, or Court of Appeals, to any court for the execution of an order of reference, order of sale, or for other proceedings directed in the decree of the appellate court or in the decree of the lower courts as affirmed or modified by the appellate court, such cases shall be deemed reinstated in the lower court from the time of filing with the clerk and master or clerk thereof, a certified copy of the decree or mandate of the appellate court; and thereafter such cases may be proceeded in, in accordance with the decree of the appellate court, without any action of the lower court thereon. It shall not be necessary for the decree or mandate of the appellate court to be spread of record, in the lower court, by direction of the lower court, before the clerk and master, clerk of the court, or the parties may proceed in said case in accordance with the decree or mandate of the appellate court.

21-1-811. Notice of appellate decree. On the receipt of any certified copy of decree, or mandate, of any appellate court, the clerk and master, or clerk of the lower court, shall file the same, copy it upon the rule docket or minute book if the court so direct, and notify the solicitors of record in the case, of the filing of said decree or mandate, and the clerk and master, or clerk of such lower court, shall receive the same compensation for said services as now allowed by law for similar services.

There is a presumption that public officials perform their statutory duty. Williams v. American Plan Co., 216 Tenn. 435, 392 S.W.2d 920 (1965); State v. Sexton, 51 Tenn.App. 385, 368 S.W.2d 69 (1963).

The technical record contains the mandate of this Court resulting from the previous appeal, which mandate is marked filed by the Clerk and Master on January 3, 1980.

On April 3, 1980, the Chancellor entered his judgment which contains the following:

This CAUSE came on to be heard before the Honorable Robert S. Brandt, Chancellor of the Chancery Court of Davidson County, Part III at the Courthouse in Nashville, Tennessee, on the twenty-fifth day of March, 1980, pursuant to the Order of the Court of Appeals of the State of Tennessee, which Order remanded this case to the Chancery Court for the purpose of determining and awarding damages to the Plaintiff due to the breach by the Defendant, Rosa Thalmann, of her obligation under the August 12, 1977 Contract with the Plaintiff to within six (6) months from the date of that Contract obtained the release of a ten (10) acre tract of land and convey same back to the Plaintiff. Upon the presentation of opening statements by the respective attorneys, presentation of proof by the Plaintiff, cross-examination by the defense, closing arguments by the respective attorneys, and upon the entire record of this cause, the Court having considered the foregoing, the following pronouncements and findings of the Court were made:

Although not shown in the record, it was stated without contradiction by counsel at the bar of this Court that the cause was set for hearing before the Chancellor on March 25, 1980, by agreement of the parties.

There is no evidence in the record that the appellant at any time suggested to the Chancellor that there had not been a compliance with Rule 43(c) T.R.A.P. and/or §§ 21-1-810, 811, T.C.A.

There was a satisfactory compliance with said rule and statutes; or, if notice were omitted, such omission was waived by proceeding to trial...