                                                                                               02/28/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 21, 2016 Session

                  GARY VOIGT v. MICHAEL A. PLATE1 ET AL.

                  Appeal from the Circuit Court for Hamilton County
                       No. 13C374      John B. Bennett, Judge
                      ___________________________________

                             No. E2016-00473-COA-R3-CV
                         ___________________________________


In this personal injury and contract reformation case, the plaintiff filed a complaint,
seeking damages resulting from a motor vehicle collision and reformation of a release of
all claims signed by the plaintiff. As grounds for reformation, the plaintiff claimed that
an agent of the defendant company fraudulently induced the plaintiff to sign the release.
The defendant filed a motion for summary judgment, asserting that the plaintiff could not
establish an essential element of his action because the plaintiff did not act promptly in
seeking reformation of the release. The trial court granted summary judgment in favor of
the defendant upon finding, as a matter of law, that the plaintiff’s action was not prompt
after discovery of the alleged fraud and that the plaintiff therefore was not entitled to
reformation of the release. The plaintiff timely appealed. Having determined that the
question of whether the plaintiff’s actions were sufficiently prompt in seeking the
equitable relief of reformation presents a genuine issue of material fact, we reverse the
trial court’s grant of summary judgment in favor of the defendant.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.

Danny R. Ellis, Chattanooga, Tennessee, for the appellant, Gary Voigt.



1
 Mr. Plate is referred to in various parts of the record as both “Michael A. Plate” and “Michael
A. Pate.” The trial court’s final order identified Michael A. Plate in the style of the case. We
will therefore refer to the appellee as “Michael A. Plate” or “Mr. Plate” throughout this opinion.
We further note that Mr. Plate was never served with process, was not a party to the trial court
proceedings, and is not a party to this appeal.
K. Stephen Powers and Travis B. Holly, Chattanooga, Tennessee, for the appellee, J.B.
Hunt Transport, Inc.


                                        OPINION

       The instant action arises from an automobile accident occurring on March 13,
2012, in Hamilton County. The plaintiff, Gary Walter Voigt, filed his complaint against
Michael Plate and J.B. Hunt Transport, Inc. (“J.B. Hunt”) on March 7, 2013, seeking
damages for the injuries Mr. Voigt sustained in the motor vehicle collision. Mr. Voigt
later amended his complaint to request reformation of a release of all claims he signed in
connection with an early settlement with J.B. Hunt.

       There appears to be no dispute that Mr. Plate operated a semi-trailer truck in the
scope of his employment with J.B. Hunt at the time of the accident. According to Mr.
Voigt’s complaint, the accident occurred when Mr. Plate’s “semi-trailer jackknifed” and
“violently slammed into Mr. Voigt’s vehicle,” which “caus[ed] [Mr. Voigt] to lose
control and slam into the barrier wall.” Mr. Voigt was allegedly injured in the collision
and was transported to the emergency room at Memorial Hospital by his wife. While at
the scene of the collision, Mr. Plate presented Mr. Voigt with a document purportedly
releasing J.B. Hunt from all liability for the collision. Mr. Voigt refused to sign the
document.

        On the day of the accident, J.B. Hunt hired an investigator, Harry Gilbert Jones, to
investigate the collision and Mr. Voigt’s claimed damages. Mr. Jones immediately
contacted Mr. Voigt on March 13, 2012, and discussed a settlement between J.B. Hunt
and Mr. Voigt. During negotiations, Mr. Jones wrote down items discussed concerning
the settlement, which included:

       Value of Vehicle:                                       $8,675.00
       Lost Wages ($200.00 per day for three days):               600.00
       Vehicle Rental:                                            510.00
       Total:                                                  $9,785.00

Following the discussions, Mr. Jones authorized payment of Mr. Voigt’s wrecker service
bill of $228.70 on behalf of J.B. Hunt. According to the proposed settlement, Mr. Voigt
would be allowed to retain the salvage value of his vehicle. It is undisputed that Mr.
Jones did not inquire regarding the amount of Mr. Voigt’s medical bills or any necessary
follow-up treatment resulting from the injuries sustained in the collision. However, Mr.
Jones was aware that Mr. Voigt was injured during the collision and that Mr. Voigt had
been to the hospital for treatment of those injuries.


                                           -2-
       According to Mr. Voigt’s deposition testimony, Mr. Jones rounded the settlement
amount to $10,000.00 to settle the property damage portion of the claim while leaving the
personal injury claim open. To reach the $10,000.00 settlement, Mr. Jones testified that
he allocated the remaining $215.00 as payment for “personal injury,” without discussing
it with Mr. Voigt, because he “needed to put something down in [his] report to [J.B.
Hunt] to get the $10,000.” Mr. Jones further explained that he did not present the
negotiation report to Mr. Voigt and did not discuss with Mr. Voigt that the $215.00
would be allocated toward his personal injury claim.

       Ultimately, Mr. Voigt and J.B. Hunt reached an agreement that J.B. Hunt would
pay $10,000.00 to Mr. Voigt. On March 15, 2012, Mr. Voigt and his wife, Ruth Angela
Voigt, signed a document captioned, “RELEASE OF ALL CLAIMS,” releasing J.B.
Hunt and Mr. Plate

       from any and all claims, actions, causes of action, demands, rights,
       damages, costs, loss of service, expenses and compensation whatsoever,
       which [Mr. and Ms. Voigt] now has . . . or which may hereafter accrue on
       account of or in any way growing out of any and all known and unknown,
       foreseen and unforeseen bodily and personal injuries and property damage
       and the consequences thereof resulting or to result from the accident,
       casualty or event which occurred on or about the 13th day of March 2012 . .
       ..

According to Mr. Voigt, he understood that he was only signing a release for claims
regarding lost wages, property damage, and a rental car, believing that the personal injury
portion of his claim would remain open. Mr. Voigt acknowledged reading the release
prior to signing it but indicated that he did not understand that the release would preclude
his personal injury and medical claims. Mr. Voigt testified that prior to signing the
release, Mr. Jones informed him: “Regardless of what we sign, J.B. Hunt is still
responsible for your medical expenses.” Mr. Voigt further testified that he had relied on
Mr. Jones’s statements regarding the meaning of the release when he made the decision
to sign it. In his deposition, Mr. Jones stated that Mr. Voigt did not at any time explain
that he wished not to settle his personal injury or medical claims. Mr. Jones insisted that
the settlement included all claims.

       Ms. Voigt executed an affidavit, stating that she was present during the
negotiations. She confirmed that an individual employed by J.B. Hunt informed her and
her husband that J.B. Hunt would remain liable for Mr. Voigt’s medical expenses and
that the release was only applicable to Mr. Voigt’s property damage claims. Relative to
the release, Criswell Claim Services issued a check to Mr. and Ms. Voigt, on behalf of
J.B. Hunt, in the amount of $10,000.00. The check included a notation reflecting:
“FULL AND FINAL SETTLEMENT.” The Voigts deposited the funds into their
account at Chattanooga Federal Employees Credit Union.
                                          -3-
       In his deposition, Mr. Voigt further testified that he was contacted by a claims
adjuster employed by his automobile insurance carrier, State Farm Insurance Company
(“State Farm”), in April 2012, approximately three weeks following the accident. The
claims adjuster stated that she was having difficulty contacting Mr. Jones. At her request,
Mr. Voigt faxed the adjuster a copy of the signed release. The insurance adjuster then
informed Mr. Voigt that State Farm would no longer cover any past or future medical
expenses that Mr. Voigt incurred resulting from the collision because the signed release
jeopardized State Farm’s ability to seek subrogation against J.B. Hunt for such medical
expenses. Mr. Voigt related that he spoke to Mr. Jones following his conversation with
the adjuster and explained to Mr. Jones how his insurance coverage had been affected by
the release. According to Mr. Voigt, during a conference telephone call including Mr.
Voigt, the adjuster, and Mr. Jones, Mr. Jones informed both Mr. Voigt and the adjuster
that J.B. Hunt was still responsible for Mr. Voigt’s medical bills and directed State Farm
to send Mr. Voigt’s medical bills to him so he could forward them to J.B. Hunt. Mr.
Jones did not recall such a telephone conference occurring. Both Mr. Voigt and Mr.
Jones testified that State Farm sent Mr. Voigt’s medical bills to Mr. Jones and that Mr.
Jones forwarded them to J.B. Hunt.

       Mr. Jones provided Mr. Voigt with contact information for a representative at J.B.
Hunt to discuss payment of the medical expenses. Mr. Voigt testified that he contacted
the J.B. Hunt representative, who informed him that “it was very unusual for somebody
to send [J.B. Hunt] medical bills after a settlement is signed” but that J.B. Hunt would
consider the medical bills and whether to pay them. According to Mr. Voigt, that was the
final conversation he had with a representative of J.B. Hunt. Thereafter, in May 2012,
Mr. Voigt obtained legal counsel.

       Mr. Voigt subsequently filed the instant action on March 7, 2013, seeking
damages for personal injuries resulting from the motor vehicle collision. Specifically,
Mr. Voigt averred that Mr. Plate violated motor vehicle traffic laws, failed to exercise
due care, and was liable under theories of common law negligence and negligence per se.
Mr. Voigt sought damages in the amount of $250,000.00. On April 15, 2013, J.B. Hunt
filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6),
asserting that Mr. Voigt had failed to state a claim on which relief could be granted
because he was not entitled to recovery due to the previously signed release. On June 7,
2013, Mr. Voigt responded in opposition to the motion to dismiss, alleging that he was
fraudulently induced into signing the release and requesting reformation of the release
document.

      Upon Mr. Voigt’s motion, the trial court subsequently entered an order granting
permission to amend the complaint. Filing his amended complaint on June 26, 2013, Mr.
Voigt requested reformation of the release on the basis of Mr. Jones’s fraudulent
misrepresentations, which purportedly induced Mr. Voigt to execute the release. Mr.
                                         -4-
Voigt requested reformation of the release such that “the terms that only the value of the
car, lost wages, and rental fees [would be] released.” On July 15, 2013, J.B. Hunt filed
an answer to Mr. Voigt’s amended complaint, denying the additional allegations. J.B.
Hunt contended that Mr. Voigt was not prompt in seeking contract reformation after his
discovery of the alleged fraud and that Mr. Voigt failed to tender back to J.B. Hunt the
proceeds received in exchange for executing the release.

        On December 19, 2013, J.B Hunt filed a motion for summary judgment, asserting
that Mr. Voigt could not prove an essential element of his action because he had failed to
seek prompt relief when he received notice of the alleged fraud, thereby precluding him
from being granted reformation of the contract. J.B. Hunt also claimed that Mr. Voigt’s
failure to return the consideration paid prevented his claim for reformation.

       Following a hearing conducted on January 11, 2016, the trial court ruled in favor
of J.B. Hunt’s motion for summary judgment. On February 4, 2016, the trial court
entered an order granting summary judgment based on the court’s determination that J.B.
Hunt had successfully negated an essential element of Mr. Voigt’s claim for reformation.
Specifically, the trial court found that “prompt action to point out a mistake of fact or
fraud in the inducement of the Release of All Claims and to seek reformation is an
essential element of [Mr. Voigt’s] action for reformation.” The trial court further
concluded as a matter of law that Mr. Voigt had not acted promptly upon discovering the
fraud as required for contract reformation. In its order, the trial court specifically noted
its decision not to consider the presence or absence of prejudice to J.B. Hunt relative to
the determination that Mr. Voigt’s actions were not prompt as a matter of law. The court
further concluded that the issue of whether Mr. Voigt should have returned the $10,000
he received as part of the agreement had been pretermitted. Mr. Voigt timely appealed.

                                   II. Issues Presented

       Mr. Voigt presents two issues for our review, which we have restated as follows:

       1.     Whether the trial court erred by granting summary judgment in favor
              of J.B. Hunt based on the court’s determination that Mr. Voigt failed
              to promptly file an action seeking reformation of the release
              contract.

       2.     Whether the trial court erred in declining to address Mr. Voigt’s
              allegations that Mr. Jones, on behalf of J.B. Hunt, committed fraud
              requiring reformation of the contract.

J.B. Hunt presents an additional issue for review, which we have also restated slightly:


                                           -5-
      3.     Whether Mr. Voigt’s failure to comply with Tennessee Rule of
             Appellate Procedure 27(a)(7) and Tennessee Court of Appeals Rule
             6(b) has effectively waived the issues he has presented for review.


                                 III. Standard of Review

        The grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)
(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court
must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. As
our Supreme Court has explained concerning the requirements for a movant to prevail on
a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56:

      [W]hen the moving party does not bear the burden of proof at trial, the
      moving party may satisfy its burden of production either (1) by
      affirmatively negating an essential element of the nonmoving party’s claim
      or (2) by demonstrating that the nonmoving party’s evidence at the
      summary judgment stage is insufficient to establish the nonmoving party’s
      claim or defense. We reiterate that a moving party seeking summary
      judgment by attacking the nonmoving party’s evidence must do more than
      make a conclusory assertion that summary judgment is appropriate on this
      basis. Rather, Tennessee Rule 56.03 requires the moving party to support
      its motion with “a separate concise statement of material facts as to which
      the moving party contends there is no genuine issue for trial.” Tenn. R.
      Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered
      paragraph and supported by a specific citation to the record.” Id. When
      such a motion is made, any party opposing summary judgment must file a
      response to each fact set forth by the movant in the manner provided in
      Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
      [and] . . . supported as provided in [Tennessee Rule 56],” to survive
      summary judgment, the nonmoving party “may not rest upon the mere
      allegations or denials of [its] pleading,” but must respond, and by affidavits
      or one of the other means provided in Tennessee Rule 56, “set forth specific
      facts” at the summary judgment stage “showing that there is a genuine issue
      for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more
      than simply show that there is some metaphysical doubt as to the material
      facts.” Matsushita Elec. Indus. Co., 475 U.S. [574,] 586, 106 S. Ct. 1348
      [(1986)]. The nonmoving party must demonstrate the existence of specific
      facts in the record which could lead a rational trier of fact to find in favor of
                                            -6-
       the nonmoving party. If a summary judgment motion is filed before
       adequate time for discovery has been provided, the nonmoving party may
       seek a continuance to engage in additional discovery as provided in
       Tennessee Rule 56.07. However, after adequate time for discovery has
       been provided, summary judgment should be granted if the nonmoving
       party’s evidence at the summary judgment stage is insufficient to establish
       the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
       56.04, 56.06. The focus is on the evidence the nonmoving party comes
       forward with at the summary judgment stage, not on hypothetical evidence
       that theoretically could be adduced, despite the passage of discovery
       deadlines, at a future trial.

Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil
Procedure 56.04, the trial court must “state the legal grounds upon which the court denies
or grants the motion” for summary judgment, and our Supreme Court has instructed that
the trial court must state these grounds “before it invites or requests the prevailing party
to draft a proposed order.” See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316
(Tenn. 2014).

                     IV. Deficiencies in Mr. Voigt’s Appellate Brief

       As a threshold matter, J.B. Hunt contends that the issues presented for review in
Mr. Voigt’s principal brief should be deemed waived because his brief fails to meet the
requirements provided in Tennessee Rule of Appellate Procedure 27(a)(7) and Tennessee
Court of Appeals Rule 6(a). Tennessee Rule of Appellate Procedure 27 states in
pertinent part:

       (a)    Brief of the Appellant. The brief of the appellant shall contain under
              appropriate headings and in the order here indicated:

              ***

              (7)  An argument, which may be preceded by a summary of
              argument, setting forth:

                     (A)    the contentions of the appellant with respect to the
                            issues presented, and the reasons therefor, including
                            the reasons why the contentions require appellate
                            relief, with citations to the authorities and appropriate
                            references to the record (which may be quoted
                            verbatim) relied on; and


                                           -7-
                       (B)    for each issue, a concise statement of the applicable
                              standard of review (which may appear in the
                              discussion of the issue or under a separate heading
                              placed before the discussion of the issues) . . . .


Similarly, Tennessee Court of Appeals Rule 6(b) provides in pertinent part:

         No complaint of or reliance upon action by the trial court will be
         considered on appeal unless the argument contains a specific reference to
         the page or pages of the record where such action is recorded. No assertion
         of fact will be considered on appeal unless the argument contains a
         reference to the page or pages of the record where evidence of such fact is
         recorded.

Although Mr. Voigt included only one citation to the record on appeal in the argument
section of his principal brief, he provided several citations to the record in both the
statement of the case and statement of facts within his brief.

         As this Court has previously explained with regard to deficiencies in an appellate
brief:

                Our Courts have “routinely held that the failure to make appropriate
         references to the record and to cite relevant authority in the argument
         section of the brief as described by Rule 27(a)(7) constitutes a waiver of the
         issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
         In Bean, we went on to hold that “an issue is waived where it is simply
         raised without any argument regarding its merits.” Id. at 56; see also
         Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
         (holding that the failure of a party to cite to any authority or to construct an
         argument regarding his or her position on appeal constitutes waiver of that
         issue). As we stated in Newcomb, a “skeletal argument that is really
         nothing more than an assertion will not properly preserve a claim.”
         Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify
         unsupported allegations in a party’s brief or to research and construct the
         party’s argument. Bean, 40 S.W.3d at 56.

                Despite the fact that [the appellant’s] brief is woefully inadequate,
         there are times when this Court, in the discretion afforded it under Tenn. R.
         App. P. 2, may waive the briefing requirements to adjudicate the issues on
         their merits.

Chiozza v. Chiozza, 315 S.W.3d 482, 487-489 (Tenn. Ct. App. 2009).
                                        -8-
       In the case at bar, although the argument section of Mr. Voigt’s brief fails to fully
satisfy the requirements of Tennessee Rule of Appellate Procedure 27(a)(7) and
Tennessee Court of Appeals Rule 6(b), we determine that this is an appropriate case in
which to exercise our discretion to waive the briefing requirements in order to adjudicate
the issues presented for review. See Tenn. R. App. P. 2.

                                V. Reformation of Release

       A release is a contract, and “rules of construction applied to contracts are used in
construing a release.” Richland Country Club, Inc. v. CRC Equities, Inc., 832 S.W.2d
554, 557 (Tenn. Ct. App. 1991). Regarding the reformation of contracts, this Court has
articulated as follows:

              [I]t is well settled that the courts have the power to alter the terms of
       a written contract where, at the time it was executed, both parties were
       operating under a mutual mistake of fact or law regarding a basic
       assumption underlying the bargain. The courts are also empowered to
       modify the provisions of a written contract where only one of the parties
       was operating under a mistake of fact or law if the mistake was influenced
       by the other party’s fraud.

              The judicial alteration of the provisions of a written agreement is an
       equitable remedy known as “reformation.”               The basic purpose of
       reformation is to make the contract “conform to the real intention of the
       parties.” It is “driven by a respect for the parties’ intent and gives effect to
       the terms mutually agreed upon by the parties.” Because the law strongly
       favors the validity of written instruments, a person seeking to reform a
       written contract must do more than prove a mistake by a preponderance of
       the evidence. Instead, the evidence of mistake must be clear and
       convincing.

Sikora v. Vanderploeg, 212 S.W.3d 277, 286-88 (Tenn. Ct. App. 2006) (footnotes and
citations omitted).

       In order to seek reformation on the basis of fraud of another, the fraud must exist
when the document is executed and may be either actual or constructive. Woodfin v.
Neal, 65 S.W.2d 212, 216 (Tenn. Ct. App. 1933). Additionally, this Court has explained
the meaning of fraud or inequitable conduct that would justify contract reformation in
relevant part as:

       Inequitable conduct, to warrant relief by way of reformation has been held
       to consist in doing acts, or omitting to do acts, which the court finds to be
                                            -9-
      unconscionable; as, in taking advantage by one party of the other party’s
      illiteracy, in abusing confidence, in concealing what of right should have
      been disclosed, in drafting or having drafted an instrument contrary to the
      previous understanding of the parties and permitting the other party to sign
      it without informing him thereof, inducing the other party to believe the
      instrument other than it actually is . . . or in taking advantage of a mistake
      of the other party, known or suspected at the time, or the result of
      importunity.

Id. This Court has also recognized that “the issue of reformation is not one generally
suited for summary disposition . . . .” See Decatur Cnty. Bank v. Duck, 969 S.W.2d 393,
398 (Tenn. Ct. App. 1997). Having considered the applicable law regarding Mr. Voigt’s
claim for contract reformation, we shall address each issue presented in turn.

                          A. Promptness of Mr. Voigt’s Action

       Mr. Voigt contends that the trial court erred by determining, as a matter of law,
that Mr. Voigt did not promptly seek reformation of the release upon his discovery of the
alleged fraud. Upon this determination, the trial court concluded that acting promptly in
seeking reformation was an essential element of an action for reformation. The trial court
stated through an oral ruling: “J.B. Hunt’s motion for summary judgment would be
granted on the basis of there was no prompt action as a matter of law on the reformation
claim.” Thereafter, the trial court entered a final judgment on February 4, 2016, finding,
inter alia, as follows:

             The Court has gone through each of the facts admitted by the parties,
      which are the facts found by the Court to be material to J.B. Hunt’s motion,
      and laid them out and has gone through the legal authorities cited by the
      parties to arrive at its conclusions of law. The Court finds that prompt
      action to point out a mistake of fact or fraud in the inducement of the
      Release of All Claims and to seek reformation is an essential element of
      [Mr. Voigt’s] action for reformation. The Court finds that [Mr. Voigt’s]
      assertion of fraudulent inducement and his action seeking reformation were
      not as a matter of law prompt. Thus, [Mr. Voigt] cannot establish an
      essential element of his cause of action seeking reformation, and J.B.
      Hunt’s Motion is due to be granted on that ground as a matter of law.

             In reaching its conclusion, the Court has not been directed to any
      case law holding that prejudice for a lack of promptness in seeking
      reformation is a factor to be considered, and the Court has not found any
      such legal authority. Promptness is an essential element that [Mr. Voigt]
      must establish to bring the action. Thus, the presence or absence of
      prejudice to J.B. Hunt from [Mr. Voigt’s] failure to raise fraud in the
                                         - 10 -
       inducement and seek reformation promptly has not been considered by the
       Court. Likewise, the Court has not considered J.B. Hunt’s contention that
       [Mr. Voigt] must have tendered-back the $10,000 he received as a
       condition precedent to bringing the action for reformation. The Court finds
       that the tender-back issue has been pretermitted by the Court’s finding that
       [Mr. Voigt] cannot establish an essential element of his cause of action for
       reformation based upon his failure to point out the alleged fraud in the
       inducement and seek reformation promptly.

              The Court finds that there are no genuine issues of material fact
       relating to J.B. Hunt's Motion and that J.B. Hunt is entitled to have its
       Motion granted as a matter of law.

Upon careful review, we disagree and determine that a genuine issue of material fact
exists regarding Mr. Voigt’s promptness in seeking reformation of the release.

       Tennessee courts have held that a plaintiff must act with promptness when seeking
reformation of a document on the basis of fraud. See Graham v. Guinn, 43 S.W. 749,
753 (Tenn. Ct. App. 1897); see also Dairy Gold, Inc. v. Thomas, No. 03A01-9901-CH-
00019, 1999 WL 1068701, at *6 (Tenn. Ct. App. Nov. 29, 1999) (affirming a trial court’s
denial of rescission of a lease due to the plaintiff’s lack of promptness in applying for
rescission).2 “As to what delay would make it incumbent upon the court to deny relief, it
cannot be determined by any set rule, but must be determined upon the facts and
circumstances of each particular case.” Graham, 43 S.W. at 753. As such, a
determination of what is considered “prompt” regarding filing for contract reformation
requires a consideration of the specific circumstances of each case.

       In the action at bar, Mr. Voigt executed the release on March 15, 2012. Mr. Voigt
insisted that Mr. Jones affirmatively stated to him that J.B. Hunt would still be
responsible for his medical bills even if he signed the release. Ms. Voigt’s affidavit,
executed on June 7, 2013, corroborates Mr. Voigt’s testimony that an individual
employed by J.B. Hunt assured Mr. Voigt that the release did not include Mr. Voigt’s
medical expense claims.

        We note that because this is a summary judgment proceeding, we must examine
the evidence presented in a light most favorable to Mr. Voigt when determining whether
the trial court erred in granting summary judgment in favor of J.B. Hunt. See Meyers v.
First Tenn. Bank, N.A., 503 S.W.3d 365, 384-85 (Tenn. Ct. App. 2016) (“When
reviewing a motion for summary judgment, ‘[w]e must view the evidence in the light

       2
          This Court in Graham recognized that the principle of what is considered to be
sufficiently prompt is the same in reformation cases as it is in actions seeking rescission. See
Graham, 43 S.W. at 753.
                                             - 11 -
most favorable to the nonmoving party and must draw all reasonable inferences in the
nonmoving party’s favor.’”) (quoting Thomas v. Carpenter, No. M2005-00993-COA-R9-
CV, 2005 WL 1536218, at *2 (Tenn. Ct. App. June 29, 2005)).

       During a conversation with an adjuster from State Farm in April 2012,
approximately three weeks after signing the release, Mr. Voigt was first advised that the
release he had signed jeopardized State Farm’s subrogation rights. According to Mr.
Voigt, a conference call followed during which Mr. Jones requested the medical bills and
reassured Mr. Voigt and the adjuster that J.B. Hunt remained liable for such expenses.
Accordingly, Mr. Voigt’s medical bills were sent to Mr. Jones who, in turn, forwarded
the medical expenses to J.B. Hunt. After J.B. Hunt had received the medical bills, Mr.
Voigt spoke with a representative of J.B. Hunt who nonetheless stated that “it was very
unusual for somebody to send [them] medical bills after a settlement is signed.”
Following this conversation, Mr. Voigt sought legal representation in May 2012, filing
the present action against the J.B. Hunt in March 2013. In his response to J.B. Hunt’s
motion to dismiss, Mr. Voigt claimed that he had been induced by fraud when signing the
release. Mr. Voigt subsequently amended his complaint in June 2013 to seek reformation
of the release on the basis that he was fraudulently induced into signing the release by
J.B. Hunt’s agent.

        Precedent has not established a bright-line rule for what is considered prompt in
seeking reformation. See Pearsons v. Washington Coll., 172 S.W. 314, 316 (Tenn. 1914)
(“Every case turns largely upon its own facts.”). In Graham, this Court determined that a
plaintiff’s actions were prompt in seeking reformation after approximately ten months,
based on the factual circumstances of that case. Graham, 43 S.W. at 754. In an early
rescission action, our Supreme Court determined that a six-year delay did not preclude a
plaintiff from seeking rescission of a contract for a continuing construction project. See
Donelson v. Weakley, 11 Tenn. 178, 199 (1832). However, when analyzing a different
set of facts, this Court more recently determined that a “several year delay” of
approximately five and a half years was not sufficiently prompt to seek rescission. See
Dairy Gold, Inc., 1999 WL 1068701, at *6.

        In Walker v. Walker, 2 Tenn. App. 279, 290 (1925), a plaintiff waited eighteen
months before her husband’s death and another eighteen months following his death, or a
total of thirty-six months, prior to filing an action for reformation of a deed. During the
eighteen months following her husband’s death and prior to filing her action, the plaintiff
accepted a deed for a life estate to the property at issue. Walker, 2 Tenn. App. at 290.
Although Walker was ultimately decided on a separate basis, our Supreme Court
criticized the plaintiff’s delay in waiting thirty-six months to seek reformation and
accepting a life estate to the property from his heirs. Id. The Walker Court further
discussed that a party who acquiesces in an instrument has lost the right to seek
reformation. Id.

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       The record reflects that Mr. Voigt learned of the alleged fraud in approximately
April 2012 and sought legal representation in May 2012. Mr. Voigt filed an action
against J.B. Hunt and Mr. Plate in March 2013. In June 2013, Mr. Voigt amended his
complaint to seek reformation of the release. Therefore, at most, Mr. Voigt’s course of
action constituted a delay of approximately fourteen months.

       Upon our careful review of the record, we determine that, taken in a light most
favorable to Mr. Voigt as we must at this stage of the proceedings, Mr. Voigt has
presented evidence sufficient to create a genuine issue of material fact as to whether he
acted promptly in seeking reformation of the release. Therefore, we reverse the trial
court’s grant of summary judgment in favor of J.B. Hunt.

                              B. Fraud in the Inducement

        Mr. Voigt argues that Mr. Jones, as an agent of J.B. Hunt, committed fraud upon
Mr. Voigt in order to induce him to sign the release. As such, Mr. Voigt is requesting
that this Court reverse the trial court’s judgment and remand to the trial court with
instructions to reform the contract. Because the trial court granted summary judgment in
favor of J.B. Hunt upon its determination that Mr. Voigt was not prompt in seeking relief,
the trial court did not reach the issue of whether Mr. Voigt was influenced by fraud when
he signed the release. Inasmuch as the trial court did not address the issue, we conclude
that the issue of whether Mr. Jones, as an agent of J.B. Hunt, fraudulently induced Mr.
Voigt into signing the release is not properly before this Court on appeal of the grant of
summary judgment. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a
court of appeals and errors, and we are limited in authority to the adjudication of issues
that are presented and decided in the trial courts[.]”).

                                     VI. Conclusion

       For the reasons stated above, we reverse the trial court’s grant of summary
judgment in favor of J.B. Hunt. We remand this matter to the trial court for further
proceedings consistent with this opinion and collection of costs below. Costs on appeal
are taxed to the appellee, J.B. Hunt Transport, Inc.



                                                   _________________________________
                                                   THOMAS R. FRIERSON, II, JUDGE




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