                                                                                         09/09/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  June 4, 2019 Session

                    IN RE ESTATE OF JOHN E. MAYFIELD

               Appeal from the Chancery Court for Cheatham County
                   No. P-2880    Suzanne Lockert-Mash, Judge


                            No. M2018-01977-COA-R3-CV



D. MICHAEL SWINEY, C.J., dissenting.

       I respectfully dissent from the majority’s reversal of the Trial Court’s order
dismissing Mr. Saltsman’s claim. I instead would affirm the dismissal because Mr.
Mayfield informed Mr. Saltsman before Mr. Saltsman ever even saw it that the
Commercial Purchase and Sale Agreement (“the Purported Instrument”) was invalid and,
as the majority states, “had to be rewritten . . .”, and Mr. Saltsman acknowledged and
agreed to that.

       It is well-recognized that a lawyer is a client’s agent. World Relief Corp. of Nat’l
Ass’n of Evangelicals v. Messay, No. M2005-01533-COA-R3-CV, 2007 WL 2198199, at
*5 (Tenn. Ct. App. July 26, 2007), no appl. perm. appeal filed. Someone in Mr.
Mayfield’s attorney’s office where the document had been drafted alerted Ms. Clayton,
who in turn informed Mr. Saltsman, that the Purported Instrument was invalid and would
have to be rewritten. As to how those events unfolded, the Trial Court found Ms.
Clayton’s testimony more credible than Mr. Saltsman’s as to her informing Mr. Saltsman
of the document’s invalidity and his response. The record is silent as to what the problem
was with the Purported Instrument to render it invalid. That, however, does not matter.
When Mr. Mayfield’s attorney informed Mr. Saltsman through Ms. Clayton before Mr.
Saltsman even saw it that the Purported Instrument was “the wrong contract” and would
have to be rewritten, it was as though Mr. Mayfield himself had torn it up before Mr.
Saltsman saw it. Mr. Saltsman then both acknowledged and agreed to the repudiation of
the document, not of their agreement whatever it was, but only this document. Mr.
Saltsman even proposed a new term—that his company rather than him personally be
named as the buyer in the new document. Thus, Mr. Saltsman’s own expectation and
agreement was that a new document would be drafted and that the original document
would not be used.
       In the majority’s view, Mr. Mayfield’s signature on the Purported Instrument
constituted an acceptance of Mr. Saltsman’s offer, and sealed it once and forever leaving
nothing more to consider regarding offer and acceptance. However, notwithstanding the
language describing Mr. Saltsman as the buyer/offeror, the Purported Instrument was
drafted by Mr. Mayfield’s attorney’s office. In fact, according to the majority’s opinion,
“Mr. Saltsman accepted what he believed was Mr. Mayfield’s counter-offer.” Mr.
Mayfield could have inserted any term he wanted. If Mr. Mayfield had, for example,
either intentionally or by error made the price $2,000,000 rather than $950,000, would
Mr. Saltsman be stuck with paying that sum even though he never agreed to it just
because Mr. Mayfield drafted and signed the Purported Instrument? Mr. Saltsman, quite
understandably and correctly, would say no. Mr. Saltsman cannot be bound by terms he
never agreed to just as he cannot bind Mr. Mayfield to the repudiated Purported
Instrument.

       The majority characterizes the Purported Instrument as a mere memorialization of
the parties’ oral contract. For a sale of land, the Statute of Frauds requires a writing
signed by the party to be charged, in this case Mr. Mayfield. See Tenn. Code Ann. § 29-
2-101(a)(4) (2012). Our Supreme Court has explained that while “[t]he Statute of Frauds
does not require a written contract . . . the writing required by the Statute of Frauds must
contain the essential terms of the contract . . . .” Waddle v. Elrod, 367 S.W.3d 217, 226
(Tenn. 2012). As to the policy rationale for the Statute of Frauds, our Supreme Court has
stated that “[t]he primary purpose of the Statute of Frauds is to reduce the risk of fraud
and perjury associated with oral testimony.” Id. at 223.1 Mr. Saltsman is not seeking
specific performance of his and Mr. Mayfield’s oral agreement but instead asked the Trial
Court, and now this Court, to order specific performance of this particular repudiated
document.

       The majority simply discounts Ms. Clayton’s testimony and describes it as
“extraneous and irrelevant . . . .” I could not disagree more. As correctly stated by the
majority, “Ms. Clayton facilitated the parties’ agreement by communicating to each party
on behalf of the other. Mr. Mayfield and Mr. Saltsman never met and never
communicated directly with one another.” The majority then continues by setting out
clearly that Ms. Clayton negotiated the agreement between Mr. Mayfield and Mr.
Saltsman.



1
  The Dead Man’s Statute, Tenn. Code Ann. § 24-1-203, has a somewhat similar purpose, which is “‘to
prevent the surviving party from having the benefit of his own testimony, when, by the death of his
adversary, his representative was deprived of his executor’s version of the transaction or statement.’”
Holliman v. McGrew, 343 S.W.3d 68, 73 (Tenn. Ct. App. 2009) (quoting McDonald v. Allen, 67 Tenn.
446, 448 (1874)).
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         The majority, without referring to the parol evidence rule by name, attempts to use
that rule to say that Ms. Clayton’s testimony on this issue of document repudiation never
should have been considered. I disagree. First, there was no objection to this testimony
at trial, and the testimony was admitted. It is not the role of this Court to raise objections
to testimony that were not raised by a party at trial. We do not try the lawsuit for any
party. Additionally, Ms. Clayton’s testimony about telling Mr. Saltsman that the written
document was invalid and would have to be rewritten does not in any way involve
“interpreting the Agreement” as argued by the majority. It does fit perfectly with her
being the sole source of any communications between Mr. Saltsman and Mr. Mayfield.
This testimony of Ms. Clayton was not offered to show anything as to the oral agreement
between Mr. Saltsman and Mr. Mayfield. It was offered only to show that Mr. Mayfield,
through his attorney’s office that drafted the document, notified Ms. Clayton who then
notified Mr. Saltsman before he ever saw the document that it was invalid and would
have to be rewritten. This was not a repudiation of the agreement between Mr. Saltsman
and Mr. Mayfield, whatever that agreement was. It was, however, notice that the
document, for whatever reason, would have to be rewritten. Mr. Saltsman agreed to the
repudiation of that document, and we know that because Ms. Clayton testified that Mr.
Saltsman said “okay” and asked for a change of the terms, who the buyer was, in the new
written contract.

       The parties tried to reach a deal but they ran out of time due to Mr. Mayfield’s
demise. The majority’s statement that “Mr. Saltsman expressed . . . a willingness to sign
the Agreement . . .” is correct only to the extent that he expressed this “willingness to
sign the Agreement . . .” only weeks or perhaps even months after Mr. Mayfield’s death
with no new document signed by Mr. Mayfield being possible. I cannot agree with
ordering specific performance of a writing (1) repudiated by a party before the other party
to the transaction ever even saw it and (2) where that other party acknowledged and
agreed to the repudiation and even proposed a change of terms to include in the new
instrument he fully expected to be drafted. The end result here is that this Court
effectively has ordered specific performance of a written document that the parties to that
document agreed was repudiated and would not be the written contract as to their
agreement. I respectfully dissent.

                                           ____________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




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