                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                October 29, 2014 Session

      MASTON G. LYONS, III, ET AL. v. FIELDING H. ATCHLEY, JR.

                Appeal from the Circuit Court for Hamilton County
        No. 09 C 1561    Lawrence H. Puckett, Judge Sitting By Interchange


              No. E2013-02342-COA-R3-CV-FILED-JANUARY 20, 2015


Maston G. Lyons, III and Linda C. Lyons (“Plaintiffs”) sued attorney Fielding H. Atchley,
Jr. (“Defendant”) alleging, in part, that Defendant had breached a duty that “cost the
Plaintiffs their fair and complete hearing in Lyons v. Leffew et al.,” and that the alleged
breach had “costs [sic] the Plaintiffs their fiduciary interest in said case.” Both sides filed
motions for summary judgment. After a hearing on the parties’ motions, the Circuit Court
for Hamilton County (“the Trial Court”) granted Defendant summary judgment. Plaintiffs
appeal the grant of summary judgment and the award to Defendant of attorney’s fees for
defending against Plaintiffs’ Rule 11 motion for sanctions. We find and hold that Plaintiffs
sustained no damage as a result of the alleged action or inaction of Defendant and, therefore,
the Trial Court did not err in granting Defendant summary judgment as a matter of law. We
further find and hold that the Trial Court did not abuse its discretion in awarding reasonable
attorney’s fees to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions. We
affirm the Trial Court’s judgment.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and J OHN W. M CC LARTY, J., joined.

Maston G. Lyons, III, and Linda C. Lyons, Hixson, Tennessee, pro se appellants.

Arthur P. Brock, and William J. Rieder, Chattanooga, Tennessee, for the appellee, Fielding
H. Atchley, Jr.
                                          OPINION

                                         Background

               Defendant represented Mrs. Lyons in a legal matter involving Sylvan Learning
Center, which was concluded in early 2007. During that representation, Mrs. Lyons
consulted with Defendant about another case, Lyons v. Leffew, a previously existing case that
Plaintiffs had filed pro se seeking specific performance of an alleged contract for the sale of
real property. Plaintiffs assert that they hired Defendant to represent them in Lyons v. Leffew.
Defendant asserts that Plaintiffs consulted him, but never actually hired him with regard to
Lyons v. Leffew.

               Plaintiffs learned in March 2009 that a default judgment against them had been
entered in July of 2008 in Lyons v. Leffew. Plaintiffs filed suit against Defendant in
December of 2009 alleging that Defendant had breached a duty that “cost the Plaintiffs their
fair and complete hearing in Lyons v. Leffew et al.,” and that the alleged breach had “costs
[sic] the Plaintiffs their fiduciary interest in said case.”

              Both Plaintiffs and Defendant filed motions for summary judgment. After a
hearing, the Trial Court entered its order on November 26, 2012 granting Defendant
summary judgment after finding and holding, inter alia, that “the failure of [Defendant] to
pursue Lyons v. Leffew on [Plaintiffs’] behalf as a matter of law and in fact (as undisputed
in the material facts before the court) did not cause plaintiffs any loss.”

             On December 19, 2012 Plaintiffs filed a motion to alter or amend and a motion
seeking sanctions against Defendant’s attorney pursuant to Tenn. R. Civ. P. 11. In the
motion for sanctions Plaintiffs state, among other things:

              The Plaintiffs state that because of the defense’s meritless [sic] filings
       valuable resources have been wasted in the process. The defenses’ [sic]
       continuing claims of legal malpractice while the plaintiffs were claiming no
       work was done to utilize [Defendant’s] legal expertise and the plaintiffs’
       Complaint based in tort and now the defense’s unsubstantiated claims in
       reference to the underlying case of Lyons v. Leffew demonstrate the lack of
       reasonable inquiry into all the facts and the law.

               After a hearing the Trial Court entered its order on March 14, 2014 denying
both Plaintiffs’ motion to alter or amend and Plaintiffs’ motion for sanctions. In the March
14, 2014 order the Trial Court also awarded Defendant reasonable attorney’s fees of
$1,271.00 for opposing Plaintiffs’ motion for sanctions. Plaintiffs appeal to this Court.

                                              -2-
                                          Discussion

             We restate the issues on appeal as: 1) whether the Trial Court erred in granting
summary judgment to Defendant, and 2) whether the Trial Court erred in awarding attorney’s
fees to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions.

              We first address whether the Trial Court erred in granting summary judgment
to Defendant. As this case was filed prior to July of 2011, we utilize the summary judgment
standard as reiterated by our Supreme Court as follows:

              The scope of review of a grant of summary judgment is well
       established. Because our inquiry involves a question of law, no presumption
       of correctness attaches to the judgment, and our task is to review the record to
       determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
       Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
       1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

               A summary judgment may be granted only when there is no genuine
       issue of material fact and the moving party is entitled to judgment as a matter
       of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
       1993). The party seeking the summary judgment has the ultimate burden of
       persuasion “that there are no disputed, material facts creating a genuine issue
       for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
       If that motion is properly supported, the burden to establish a genuine issue of
       material fact shifts to the non-moving party. In order to shift the burden, the
       movant must either affirmatively negate an essential element of the
       nonmovant’s claim or demonstrate that the nonmoving party cannot establish
       an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
       270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
       to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
       Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
       apply the federal standard for summary judgment. The standard established
       in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
       sets out, in the words of one authority, “a reasonable, predictable summary
       judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
       v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
       175, 220 (2001).

               Courts must view the evidence and all reasonable inferences therefrom
       in the light most favorable to the non-moving party. Robinson v. Omer, 952

                                               -3-
       S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
       only when the facts and the reasonable inferences from those facts would
       permit a reasonable person to reach only one conclusion. Staples v. CBL &
       Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
       Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
       Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

                The parties disagree as to the gravamen of Plaintiffs’ claims. Defendant
classifies the claims as sounding in legal malpractice. Plaintiffs assert that their claims sound
in fraud and misrepresentation and not legal malpractice. In either instance, Plaintiffs in
order to prevail would be required to show that they suffered damages as a result of the
alleged actions or inaction of Defendant. Plaintiffs assert that the alleged actions or inaction
“cost the Plaintiffs their fair and complete hearing in Lyons v. Leffew et al.” Thus, Plaintiffs
to be successful in their claims against Defendant must prove that if not for Defendant’s
alleged actions or inaction Plaintiffs more than likely would have been successful in Lyons
v. Leffew.

              In Lyons v. Leffew, Plaintiffs sought specific performance of a contract for the
purchase of real property. In its order granting Defendant’s motion for summary judgment
in the case now before us, the Trial Court specifically found and held, inter alia:

               Plaintiff’s lawsuit against [Defendant] fails because the failure of
       [Defendant] to pursue Lyons v. Leffew on their behalf as a matter of law and
       in fact (as undisputed in the material facts before the court) did not cause
       plaintiffs any loss.

              This conclusion arises from the simple fact that, with or without
       [Defendant], plaintiffs could not prevail on the merits of their claims brought
       in Lyons v. Leffew. The basis for the conclusion that plaintiff’s claims against
       the defendants in Lyons v. Leffew lack merit follows.

                                             ***

             It is undisputed that no enforceable written contract for the sale of
       Leffew’s property was in force after the closing date of September 1, 2005
       passed.

       The contract reads:

                                               -4-
       19. Closing Date: This contract shall be closed and the deed and
       possession shall be delivered on or before the 1st day of
       September, 2005, unless extended by other provisions of this
       contract.

                                     and


       21. Other agreements: No agreements or representations, unless
       incorporated in this contract, shall be binding upon any of the
       parties.

        In paragraph 3 of defendant’s statement of undisputed facts which
plaintiffs admit, it is undisputed that:

                 On September 1, 2005, plaintiffs had not secured either
       the necessary financing to pay the purchase price of the property
       [$115,000.00], nor had they conducted the requisite appraisal on
       the property. Deposition of Linda Lyons’ (“L. Lyons’ Depo.”)
       . . . p. 33.

and in paragraph 4 of the defendant’s statement of undisputed facts:

       4. Therefore, the closing did not occur on September 1, 2005.
       L. Lyons Depo., p. 63.

       Plaintiffs denied paragraph 5 of defendant’s statement of undisputed
material facts that states:

       5. Following the Lyons’ failure to perform on the contract, Mrs.
       Lyons’ [sic] stated that the terms of the contract were orally
       altered. L. Lyons [sic] Depo., p. 67

       However, plaintiffs explain their dispute of this fact in their response
to defendant’s statement of undisputed material facts:

       5. Denied. The reference is of page 67 of the L. Lyons’
       deposition, yet there is no discussion of when the closing date
       was changed in that reference. One week after signing the

                                      -5-
       contract, the Lyons’ told Leffew about significant structural
       issues with the property not observable at showing. Leffew said
       she did not have the money to repair the property but wanted the
       Lyons’ to complete the work and they agreed the cost would be
       about $10,000.00 which would be credited toward the purchase
       price. It was agreed the appraisal could not take place or closing
       occur on the previously anticipated date, and the date would be
       chosen after the work was completed.

        Therefore, it is undisputed that more than the time of closing was orally
changed. Therefore, the line of cases cited by plaintiffs in support of the legal
proposition that the written contract survives the oral modifications are [sic]
not applicable to the Leffew / Lyons’ written sales contract involved in Lyons
v [sic] Leffew. That written contract, as allegedly orally modified, is not
enforceable as a matter of law. An oral agreement putting off the date of
closing is not all that is alleged by Plaintiffs nor supported by the undisputed
facts. Rather, plaintiffs allege an oral modification that altered the conditions
of sale so that plaintiffs could effect repairs to the premises approximated by
the parties to be around $10,000.00 and provided further that the cost of
repairs would be credited on the purchase price. Also the time in which
plaintiffs were to complete appraisal of the property was changed to occur
after the repairs were completed. Paragraph 6 of defendant[’]s undisputed
material facts is admitted by plaintiffs:

       6. Admitted that the agreement was that the Lyons’ [sic] would
       use the $10,000.00 to make the necessary repairs to the property
       for the appraisal and owe the remaining $105,000.00 to Leffew
       with receipts, making $115,000.00.

       Plaintiffs cite the case of Davidson v. Wilson 2010 Tenn. App. LEXIS
393. However, the holding in that case does not support plaintiffs’ contention
that the oral modifications to their written contract with Leffew are
enforceable.

       In Davidson, the court held that “the parties’ oral agreement would be
unenforceable . . . because it did not merely change the time for performance
of the contract.” The court noted that “In addition to extending the closing
date until the Davidson’s concerns with the closing documents could be
adequately addressed, the parties verbally agreed to obtain a survey of the land
described and to adjust the purchase price based on results of the survey.”

                                       -6-
Similarly, plaintiffs’ alleged oral modifications to the written sales contract
with Leffew added a provision for the house to be repaired at plaintiffs’
expense up to an unspecified amount but estimated to be around $10,000,00
[sic] and for the purchase price to be adjusted accordingly based on repairs.
One can hardly imagine a scenario of dealings between parties that would
more completely bespeak the wisdom of the statute of frauds than this one.

        The potential for fraud between one or another of the parties based on
the alleged oral modifications are too numerous to recount. However, for
starters, what if repairs were done by plaintiffs without charge by a third party?
How would the parties ascertain the value of the repairs and ascertain
plaintiffs’ credit on the purchase price? Or could plaintiffs have forgone
making any repairs and enforced a purchase price that nevertheless, reduced
the purchase price by $10,000.00. If receipts for repairs exist they are not a
part of the record before the court. It is sufficient for the court here to
conclude, as the court in Davidson concluded, that the modifications [as
alleged] changed the essential terms of the contract, such that the changes to
the contract are required by law to be in writing pursuant to the statute of
frauds. Therefore, the alleged contract for which plaintiffs seek specific
performance against Leffew in Lyons v. Leffew and in this case Lyons v.
Atchley is not enforceable.

       As pertinent to the issue before us, the statute of frauds provides:

29-2-101. Writing required for action.

(a) No action shall be brought:

                                      ***

(4) Upon any contract for the sale of lands, tenements, or hereditaments, or the
making of any lease thereof for a longer term than one (1) year; or

                                      ***

unless the promise or agreement, upon which such action shall be brought, or
some memorandum or note thereof, shall be in writing, and signed by the party
to be charged therewith, or some other person lawfully authorized by such
party. In a contract for the sale of lands, tenements, or hereditaments, the party
to be charged is the party against whom enforcement of the contract is sought.

                                       -7-
Tenn. Code Ann. § 29-2-101 (2012).

               In the case now before us, the Trial Court found that there was no dispute that
“no enforceable written contract for the sale of Leffew’s property was in force after the
closing date of September 1, 2005 passed.” The Trial Court also found that the agreement
for which Plaintiffs were seeking specific performance in Lyons v. Leffew was an oral
agreement not reduced to writing for the sale of land and, therefore, was unenforceable, and
that this was undisputed. We agree with the Trial Court.

               The statute of frauds, Tenn. Code Ann. § 29-2-101, requires that an action for
the sale of real property may not be sustained absent a writing “signed by the party to be
charged therewith, or some other person lawfully authorized by such party.” Tenn. Code
Ann. § 29-2-101 (2012). As the actual agreement that Plaintiffs sought to enforce in Lyons
v. Leffew was an oral agreement for the sale of real property and not the original written
agreement between the Plaintiffs and Leffew, Plaintiffs, as found by the Trial Court, could
not have prevailed in Lyons v. Leffew. As such, the outcome of Lyons v. Leffew would have
been no different had Defendant taken the actions Plaintiffs allege that Defendant should
have taken. Given all this, Plaintiffs simply cannot prove any damages in the case now
before us.

              Defendant demonstrated that Plaintiffs cannot establish an essential element
of their claim, damages. There are no genuine disputed issues of material fact, and
Defendant was entitled to summary judgment as a matter of law. We find no error in the
Trial Court’s grant of summary judgment to Defendant.

              Next, we consider whether the Trial Court erred in awarding attorney’s fees
to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions. We review a trial court’s
decision on a Rule 11 motion for abuse of discretion. Brown v. Shappley, 290 S.W.3d 197,
200 (Tenn. Ct. App. 2008). In pertinent part, Tenn. R. Civ. P. 11 provides that “the court
may award to the party prevailing on the motion the reasonable expenses and attorney’s fees
incurred in presenting or opposing the motion.” Tenn. R. Civ. P. 11.03(1)(a).

               The Trial Court found that Plaintiffs’ Rule 11 motion for sanctions was not
well taken. Plaintiffs have pointed to nothing in the record on appeal that supports their
assertion that Defendant filed “motions, pleadings and other papers that are frivolous and
inconsistent with the facts and laws in regard to this case.” After a careful and thorough
review of the record on appeal, we find no abuse of discretion in the Trial Court’s decision
with regard to this motion. We further find no abuse of discretion in the Trial Court’s award
to Defendant of reasonable attorney’s fees for opposing Plaintiffs’ Rule 11 motion for
sanctions.

                                             -8-
                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Maston G. Lyons, III, and Linda C. Lyons, and their surety.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                            -9-
