                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                        July 13, 2001 Session

 TEX HELTON, ET AL. v. COLONIAL LOAN ASSOCIATION, INC., ET AL.

                        Appeal from the Circuit Court for Hawkins County
                              No. 5029-J    John K. Wilson, Judge

                                    FILED NOVEMBER 20, 2001

                                    No. E2001-00060-COA-R3-CV


Tex Helton and his wife sue Colonial Loan Association, Inc., and Lakeview Motors, Inc., seeking
damages in connection with Colonial Loan’s repossession of an automobile sold to them by
Lakeview Motors. The Trial Court granted a summary judgment as to Colonial Loan. The claim
as to Lakeview Motors has been concluded and this appeal only concerns the granting of a summary
judgment in favor of Colonial Loan. We vacate the order granting summary judgment and remand.

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

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY , JJ., joined.

Phillip L. Boyd, Rogersville, Tennessee, for the Appellants, Tex Helton and wife, Judy Helton

H. Scott Reams, Morristown, Tennessee, for the Appellee, Colonial Loan Association, Inc.

                                                OPINION

        This is a suit by Tex Helton and his wife, Judy Helton, against Colonial Loan Association,
Inc., and Lakeview Motors, Inc.,1 arising from the sale of an automobile by Lakeview Motors to the
Heltons and the assignment of an indebtedness incurred to purchase the automobile to Colonial
Loan.




        1
              The claim against Lakeview Motors has been concluded and this appeal only concerns the grant of
summary judgment in favor of Colonial Loan.
        The Heltons seek damages for unlawful repossession of the automobile, trespass and
violation of the Tennessee Consumer Protection Act, codified in Tennessee Code Annotated, 47-18-
101, et seq.2

        The facts are relatively undisputed. On August 25, 1997, the Heltons purchased a 1990
Mazda Miata automobile from Lakeview Motors and entered into a security agreement which
secures payment of the purchase price. Shortly thereafter the Heltons found the Mazda was too
small for their family and purchased a 1991 Toyota Celica on September 20, 1997. In connection
with this transaction, an agreement of substitution of collateral was entered into between the Heltons,
Lakeview Motors and Colonial Loan. The vehicle substituted, however, was not the vehicle actually
purchased by the Heltons, but, instead, a 1990 Toyoto Celica. Title for the 1991 Toyota was issued
to the Heltons which showed no lien.

       The Heltons became delinquent as to two or three payments on the loan and Colonial Loan
repossessed the 1991 Toyota and stored it with Lakeview Motors.

       The repossessed automobile was ultimately sold on March 2, 1998, although the notice of
sale described the 1990 Toyota. Over four months later, on July 7, 1998, a suit was filed by
Lakeview Motors which had repurchased the original obligation from Colonial Loan to recover the
balance owed on the indebtedness after sale of the 1991 Toyota. This suit precipitated the filing of
the case presently on appeal.

        The Trial Judge sustained a motion for summary judgment by Colonial Loan to reform the
substitution of collateral instrument to show that the vehicle substituted was the 1991 Toyota rather
than the 1990 Toyota. He also granted summary judgment in favor of Colonial Loan as to the
original action filed by the Heltons.

       The Heltons appeal contending that the Trial Judge erred in granting Colonial Loan’s motion
for summary judgment to reform the substitution of collateral instrument, and in granting summary
judgment against them as to their original claim.

       Our standard of review as to summary judgments has been recently restated in the case of
Staples v. CBL & Associates S.W.3d 83, 89 (Tenn. 2000):

             The standards governing the assessment of evidence in the summary judgment
             context are also well established. Courts must view the evidence in the light most
             favorable to the nonmoving party and must also draw all reasonable inferences in
             the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
             Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when


         2
                    The Heltons’ brief does not address the violation of the Tennessee Consumer Protection Act and we
will notice it no further.

                                                        -2-
         both the facts and the inferences to be drawn from the facts permit a reasonable
         person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153
         (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

       We conclude the Trial Court acted properly in granting the summary judgment as to the
counter-claim of Colonial Loan seeking reformation. We say this because Mrs. Helton in her
deposition specifically acknowledged that it was in fact the 1991 Toyota that was purchased and
should have been substituted as collateral. Thus, we have a mutual mistake justifying reformation.
Williams v. Botts, 3 S.W.3d 508 (Tenn. Ct. App. 1999).

        It does not follow, however, that Colonial Loan was entitled to repossess the 1991 Toyota
which was titled to the Heltons without any notation of lien at the time the repossession occurred.
Of course, if the judgment reforming the substitution of collateral instrument had been effected prior
to repossession we would find no fault on the part of Colonial Loan.

        The facts leading up to repossession are that representatives of Colonial Loan talked with
Mrs. Helton and advised her it would be necessary for Colonial Loan to repossess the vehicle. At
that time, Colonial Loan had no notice that its lien had not been perfected. Although a representative
of Colonial Loan told Mrs. Helton that repossession would take place on a Saturday morning at the
home of the Heltons, it in fact took place on Friday night when the vehicle was parked in the
Heltons’ front yard some 10 feet from their driveway. Mrs. Helton never specifically granted
Colonial Loan authority to repossess the vehicle, but it does appear that she acquiesced in the vehicle
being repossessed on Saturday morning.

        Because at the time of repossession the Heltons had title to the 1991 Toyota, unencumbered
by a lien, we conclude that Colonial Loan’s repossession was unwarranted. Moreover, it is arguable
that if in fact it did have a valid lien, the repossession on the night before Colonial Loan’s
representative had told Mrs. Helton that it would repossess was likewise unwarranted.

        Finally, it appears that certain personal property owned by the Heltons was in the car and
only a portion of the property was ever returned to the Heltons. They would at least be entitled to
a judgment for the value of the unreturned personal property which was in the repossessed
automobile, as well as at the very least a judgment for nominal damages for trespass.

        For the foregoing reasons the judgment of the Trial Court is vacated and the cause remanded
for proceedings not inconsistent with this opinion. Costs of appeal are adjudged against Colonial
Loan Association, Inc.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE


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