                 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 FEBRUARY 4, 2002

                                  No. E2001-00060-COA-R3-CV


                            OPINION ON PETITION TO REHEAR

       Colonial Loan Association has filed a petition to rehear correctly calling to our attention that
we were in error in holding that the substitution of collateral was not effective until the Trial Court
entered an order of reformation. In support of its petition it cites the case of Globe & Republic Ins.
Co. of America v. Shields, 96 S.W.2d 947 (Tenn. 1936), which holds that upon an instrument being
reformed the effective date of the reformation is the date of the original instrument, which in this
case would be the date the substitution instrument was executed.

       Counsel for the Heltons in response to the petition to rehear concedes that the assertion made
by Colonial Loan relative to the effective date of the collateral substitution is correct. He insists,
however, that there was no mutual mistake justifying reformation. Our review of the record
persuades us that it was the intent of the parties beyond peradventure to substitute the vehicle
ultimately repossessed for the one actually appearing in the instrument substituting collateral.

       We accordingly grant the petition to rehear to further address the question in light of the
foregoing case.

        Because this case was decided on summary judgment, and it does not appear the facts were
fully developed relative to the understanding of the parties when the repossession would occur, we
deem it appropriate to remand for further proof on this point. If in fact it was the agreement of both
parties that the vehicle would be repossessed on Saturday morning rather than Friday night, the
Heltons would be entitled to any damages they might be able to prove because of the early
repossession, and also at least nominal damages for trespass, as well as loss of personal property.

        The original opinion is modified in accordance with the foregoing and costs incident to the
petition to rehear are adjudged against the Heltons.
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HOUSTON M. GODDARD, PRESIDING JUDGE


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CHARLES D. SUSANO, JR., JUDGE


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D. MICHAEL SWINEY, JUDGE
