                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________

POPULAR HOMES, INC.,                               FROM THE SHELBY COUNTY
CANADA TRACE, INC.,                           CIRCUIT COURT, No. 37903
TOM LONG & KATHY LONG,                        THE HONORABLE D’ARMY
                                                   BAILEY, JUDGE
       Appellants,
                                                    C.A. No. 02A01-9702-CV-00044
Vs.                                                 AFFIRMED IN PART AND
                                                    REMANDED
CLAYBORN BALL TEMPLE A.M.E                          T. James Watson of Bartlett
CHURCH, and REVEREND E.                       For Appellants
ALBERT BROWN,

      Appellees.
                                           Charles Waldman of Memphis
                                           For Appellees
                                                                             FILED
____________________________________________________________________________
                                                              September 24, 1997
                         MEMORANDUM OPINION1                Cecil Crowson, Jr.
___________________________________________________________________________
                                                            Appellate C ourt Clerk

CRAWFORD, J.

       Plaintiffs’ complaint against defendants, Clayborn Ball Temple AME Church and

Reverend E. Albert Brown, Jr., is titled “Complaint for Breach of Contract for Sale of Real and

Personal Property.” The complaint alleges that defendant Brown acting as the agent and with

authority from defendant church entered into a contract with plaintiff providing for conveyance

of real property and certain personal property to the church. Prior to the consummation of the

transaction, Reverend Brown, for the church, assumed the duties of managing the property and

collecting rent, but failed to abide by the contract and pay the mortgage indebtedness and taxes

due on the properties. The contract was breached by default in the payment of the mortgage

obligations and taxes and further that payment was not made for the property as required by the

contract. The complaint avers that as a result of the defendants’ actions, the property was

foreclosed, and plaintiffs were liable for deficiencies and other expenses that should have been

paid by defendants.

       Defendant church’s answer denied the material allegations of the complaint and further

denied that defendant Brown was acting as its agent and servant and avers that the church had


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         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
no involvement in the transaction with the plaintiffs. Defendant Brown’s answer denied the

material allegations of the complaint and joined issue thereon and Brown also filed a counter-

claim alleging that he sustained damages because plaintiffs breached the contract. On May 13,

1996, at the conclusion of a rather lengthy nonjury trial, the trial court stated his findings from

the bench that defendant Brown did not have actual or apparent authority to act for the church

and that the church was not a party to the contract with plaintiff. The trial court also announced

from the bench: “I will award compensatory damages of $175,000.00 against Reverend Brown

and punitive damages in the amount of $25,000.00, costs against Reverend Brown.”

       On September 19, 1996, the Court entered judgment which states as follows:

                 THIS CAUSE came on to be heard on May 6, 7, 8, 9, 13, and
               June 5 and 28, 1996, before the Honorable D’ARMY BAILEY,
               Judge of Division VIII of the Circuit Court of Tennessee for the
               Thirtieth Judicial District at Memphis, Shelby County, upon the
               Plaintiffs’ original Complaint filed herein, the Defendants’
               respective Answers filed in response thereto, the Defendant E.
               ALBERT BROWN JR.’s Counter-Complaint filed in the cause
               and the Plaintiffs’ Answer filed in response thereto, the testimony
               of the several witnesses, the many exhibits, statements of counsel,
               and from the entire record established in this cause, from all of
               which it appears to the Court as follows:

                     IT AFFIRMATIVELY APPEARING that the Plaintiffs’
               cause against the Defendant CLAYBORN BALL TEMPLE AME
               CHURCH is not well taken and that a judgment in favor of the
               Defendant should be entered as to this named Defendant; and

                          IT FURTHER APPEARING that the Defendant E.
               ALBERT BROWN JR. is guilty of acts of willful and intentional
               fraud and deceit against the Plaintiffs and that a judgment in the
               amount of fifty thousand and no/100 ($50,000.00) compensatory
               damages should be entered against this Defendant and in favor of
               the Plaintiffs; and

                      IT FURTHER APPEARING that judgment in favor of
               Plaintiffs/Counter-Defendants should be entered as to this named
               Defendant’s Counter-Complaint filed herein.

                   IT IS, THEREFORE, ORDERED, ADJUDGED AND
               DECREED:

               1. That judgment in favor of the Defendant CLAYBORN BALL
               TEMPLE AME CHURCH be, and it hereby is granted in this
               cause.

               2. That judgment in the amount of fifty thousand and no/100
               ($50,000.00) dollars be, and it hereby is, granted in favor of the
               Plaintiffs and against the defendant E. ALBERT BROWN JR. as
               compensatory damages for the acts of willful and intentional

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                fraud and deceit perpetrated against the Plaintiffs by this
                Defendant.

                3. That judgment in favor of the Plaintiffs/Counter-Defendants
                be, and it hereby is, granted in this cause as to the Counter-
                Complaint filed herein by the Defendant E. ALBERT BROWN,
                JR.

                4. That the costs of this cause be, and hereby are, assessed
                against Defendant E. ALBERT BROWN JR., for all of which let
                execution issue.

         Plaintiffs have appealed and present two issues for review which we have rephrased as

follows:

                1. Whether the evidence preponderates against the trial court’s
                findings that there was no actual or apparent authority for
                defendant Brown to act for the church and therefore finding that
                the church was not a party to the contract with plaintiffs.

                2. Whether the trial court erred in considering comparative fault
                on the part of plaintiffs when the defendant Brown was found
                guilty of willful and intentional fraud and deceit.

         Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm absent error of law.

T.R.A.P. 13(d).

         As to the first issue, from our review of the record, we find that the evidence does not

preponderate against the finding of the trial court that Brown had no actual or apparent authority

to act for the church and that the church was not a party to the contract with the plaintiffs.

         As to the second issue presented for review, plaintiffs allege in their brief that the trial

court applied the principles of comparative negligence in its ultimate entry of the judgment of

$50,000.00 instead of $175,000.00, which the court stated from the bench would be awarded.

We find nothing in the record that substantiates this assertion. However, our review of the

record indicates that the damages in the amount of $50,000.00 are lower than the range of

damages established by the proof. Defendant Brown did not file a brief in this court and

therefore does not respond to plaintiff’s assertions nor does the bank make any response to that

issue.

         The record does reflect that the trial court indicated in his statements from the bench that


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comparative fault might be involved, but that this theory had not been asserted by the parties.

The trial court did call for memoranda from the parties and subsequently entered a final

judgment. As we noted, the damages awarded did not appear to be within the range of the proof

offered concerning the damages, and the case should be remanded for the reconsideration of the

damages by the trial court.

       Since the trial court has specifically found that defendant Brown was guilty of intentional

fraud and deceit, we do not believe that the plaintiff’s negligence should affect the award of

damages. In Isaacs v. Bokor, 566 S.W.2d 532 (Tenn. 1978), our Supreme Court said: “In

actions for actual fraud and deceit, contributory fault of the victim generally is not considered

a defense.” Id. at 540 (citations omitted).

       In Bevins v. Livesay, 221 S.W.2d 106 (Tenn. App. 1949), this Court stated:

                 The perpetrator of a fraud should not be relieved on the ground
               that his victim was negligent in believing the misrepresentation
               and should have made an investigation of his own.

                  “It has been frequently declared that as between the original
               parties, one who has intentionally deceived the other party to his
               prejudice is not to be heard to say, in defense of the charge of
               fraud, that the innocent party ought not to have trusted him or was
               guilty of negligence in so doing.” 23 Am.Jur. 948.

Bevins, 32 Tenn. App. 1, 8, 221 S.W.2d at 109.

       Plaintiffs also assert that the trial judge erroneously failed to award punitive damages

after announcing from the bench that he would do so. An award of punitive damages lies within

the discretion of the trier of fact. B.F. Myers & Son of Goodlettsville, Inc. v. Evans, 612

S.W.2d 912 (Tenn. App. 1980). We find no abuse of discretion in this regard by the trial court.

       The judgment of the trial court in favor of defendant Clayborn Ball Temple AME Church

is affirmed, and the judgment as to liability against defendant Brown is affirmed. The case is

remanded to the trial court for further consideration of the damage award against defendant

Brown consistent with this Opinion. Costs of the appeal are assessed against the appellee, E.

Albert Brown, Jr.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:

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____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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