A H M A D B E N N A M A and                         )
                                                                              F IL E D
K A HLED A BED,                                     )                           Ma rch 16, 2000
                                                    )
       Plaintif fs/A ppellees,                      )                         C e c il C ro w s o n , J r.
                                                    )       A ppeal N o.    A p p e l la t e C o u rt C le rk
v.                                                  )       M 1999-00171-C O A -R 3-C V
                                                    )
A Y M A N A Y O U B , d/b/a                         )       N o. 94-3189-I
L I M IT E D A U T O S A L E S ,                    )       D av idson C hancery
                                                    )
       D efendant/A ppellant.                       )



                      C O U R T O F A P PE A L S O F T E N N E S S E E


 A P PE A L F R O M T H E C H A N C E R Y C O U R T F O R D A V ID S O N C O U N T Y

                            A T N A S H V IL L E , T E N N E S S E E


      T H E H O N O R A B L E I R V I N H . K IL C R E A S E , J R ., C H A N C E L L O R




IR W IN J . K U H N
E isenstein, M oses & M ossman
S uite 500, O ne C hurch Street
N ashv ille, Tennessee 37201
        A T T O R N E Y F O R P L A IN T I F F S /A P PE L L E E S


JOHN C. HESS
105 B onnabrook D rive, S uite 105
H ermitage, Tennessee 37076
      A T T O R N E Y F O R D E F E N D A N T /A P PE L L A N T




                               A F F IR M E D A N D R E M A N D E D




                                                             W I L L IA M B . C A I N , J U D G E
                                   O PIN IO N

           T his is an appeal from the chancellor’s denial of D efendant’s motion
to alter or amend f indings of fact. T he question to be answ ered is w hether the
“new ly discov ered ev idence rule” w ould allow the presentation post-trial of
ev idence w hich the proponent concedes he could hav e produced at trial. The
defendant contends that ev idence which tends to show misrepresentation on the
part of a nonmov ant should be allow ed under a motion pursuant to T enn. R. C iv .
P . 52, 59 and 60 regardless of w hether it w as discov erable at trial. U nder the
circumstances of the case at bar, w e cannot agree.


I. F A C T S P R E S E N T E D A T T R IA L
           T he chancellor below w as presented w ith tw o strongly conflicting
v ersions of the same core trans act ion . T he parties in this dispute were three of
the four primary characters inv olv ed in that transaction. T he defendant, A y man
A y oub, operates a used car dealership. The plaintiff s, A hmad B en N ama and
K haled A bed are similarly engag ed.1 T he transactions center around one 1995
C rown V ictoria, and one 1994 C hev rolet C aprice.2


           A . T H E P L A IN T I F F S ’ V E R S IO N
           A ccording to the plaintiffs M ohamad F ay ssal A l S akati (A l S akati)
arranged a meeting betw een them and M r. A y oub at A y oub’s place of business,
L imited A uto S ales. A t this meeting M r. A y oub agreed to sell and deliv er good
title to the aforementioned v ehicles to the plaintiffs. T hey allege that M r. A y oub
failed to deliv er good title to the C hev rolet C aprice and failed to physically
deliv er the F ord.

       1
        T he plaintiff N ama is a f riend of A bed, who apparently bankrolled the
purchase at issue. Pursuant to an indemnification ag reement. M r. A bed carried
on the suit below on M r. N ama’ s behalf. T hus M r. N ama did not participate at
trial. M r. A bed w as the only party to testif y in the plaintiff s’ case in chief .
       2
         A ccording to the record, M r. A bed testified to a third car w hich allegedly
serv ed as partial consideration for the C hev rolet and the Ford. The record
presents contradicting testimony as to the actual model and make of the car.
S ince the chancellor’s order does not address this discrepancy, and no resolution
is necessary to our disposition in this case, reference is made for the purpose of
clarify ing the chaotic nature of the business transactions alleged.

                                               2
           A ccording to the plaintiffs, the consideration for the sale originally
took the form of a personal check in the amount of $21,000 made out to A y man
A y oub. T he plaintiffs all ege d that during the bargaining process but after the
draw ing of the check, the defendant, A y oub, offered to buy a 1986 B rougham
f ro m the plaintiff s. The sales w ere consolidated and the original check w as
replaced w ith a cashier’s check in the amount of $19,000 payable to M r. A y oub.
A ccording to the plaintiff s, since the Broug ham w as v alued by the parties at
$2,800, M r. A y oub promised to make up the $800 diff erence some time in the
future.


           In support of their version of the facts and in addition to the testimony
of M r. A bed, the plaintiffs produced copies of the personal check in the amount
of $21,000 and cashier’s check in the amount of $19,000 as w ell as a facsimile
of the title to the alleged undeliv ered 1995 F ord C row n V ictoria.3 T his facsim ile,
bearing a legend date of S eptember 15, 1998, was sent f ro m S afew ay Industries
to M r. A bed’s place of business, U nited A uto S ales. This copy show ed the last
endorsement to be in blank by A y oub’s business, L imited A uto S ales. Plaintiffs
off ered this exhibit specifically for the purpose of show ing t hat M r. A y oub
shipped the Ford in question to K uw ait rather than deliv ering it to M r. A bed.


           B . D E F E N D A N T ’ S V E R S IO N
           M r. A y oub, for his part, denied that any of the transactions inv olv ed
him. In spite of the checks bearing his sig nature and name as payee, and in spite
of the existence of the endorsement on the fax copy of the title, M r. A y oub
continued to a sse rt at t rial t hat M r. A l S akati bargained w ith the plaintiffs on his
ow n. M r. A y oub testified at trial that the someone must have forged his name
on the checks. In addition, he asserted that the title copy could hav e been
incomplete, in that a title extension could hav e been appended onto the original
title. M r. A l S akati testified apparently in support of M r. A y oub’s v ersion,
how ev er that testimony seemed to raise as many questions as it ans w ered. M r.


       3
         It should be noted that both the checks and the facsimile title w ere entered
into ev idence without contemporaneous objection by defendant. D efendant later
attempted to object to the admission of the checks, howev er that objection w as
ov erruled as untimely .

                                              3
A l S akati testified that he repossessed the C hev y C aprice f or non pay me nt. M r.
A y o u b’ s theory at trial w as that the checks presented by the plaintif fs concerned
an agreement betw een the plaintiffs and M r. A l S akati. M r. A l S akati then gav e
M r. A y oub the $21,000 check to deposit. Thus M r. A l S akati’s testim ony posed
at least as many questions as it answ ered.


II. T H E F A C T U A L F IN D IN G S
           T his case w as tried to the court w ithout a jury. T he chancellor, after
exercising his opportunity to examine the credibility of the of the w itnesses,
entered the findings of fact.           T hese findings, w hich come to us w ith a
presumption of correctness on appeal absent a showing that they are against the
w eight of the ev idence, endorsed the plaintiffs’ v ersion of the f acts recounted
abov e. A fter entry of the court’ s judgm ent, M r. A y oub mov ed the court under
T ennessee R ules of C iv il Procedure 52, 59 and 60.02 to amend the factual
finding s, to enter additional findings, or in the alternativ e for a new trial. In this
motion, D efendant alleged that the personal check in the amount to of $21,000
admitted at trial, as w ell as the facsimile copy of the F ord C rown V ictoria title
w ere forged, and that the plaintiff s thereby w ere attempting to def raud the court.
T he total proof presented with the motion contained only v arious additional
documents (w ith aff idav its from their custodians) w hich appear to contradict
ev idence w hich w as presented at trial. There were no allegations at trial or on
appeal that Plaintif fs prev ented D efendant f rom discov ering these docum ents,
nor does he assert that this evidence could not be obtained at trial.


           T he relief sought by motions such as the one at issue is extraordinary
for the v ery reason that a trial has already been conducted. T he opportunity to
present proof has passed. A judgm ent has been rendered and may indeed be final
but for the consideration of the motion. R ule 60.02 has been described as an
“escape v alv e” used by an unsuccessful party in an ef fort to avoid the f inality
of an incorrect or “unfair” judg me nt w hic h sh oul d no t ea sil y be o pen ed. S e e
Toney v. M uelle r C o., 810 S .W .2d 145, 146 (T enn. 1991) (quoting Thompson v.
F iremen's F und Ins. C o., 798 S .W .2d 2 35, 2 38 (T enn .199 0)).




                                            4
           T he burden upon a party seeking relief is clear. A s this C ourt has
clearly stated:
               T enn .R .C iv .P . 60.02 itself strikes a balance betw een the
           competing desires for finality and f or correct nes s. J erkins v.
           M cK inney, 533 S .W .2d 275, 280 (T enn.1976); C . W rig ht &
           A . M ill er, F ederal P ractice and P rocedure S ec. 2857 (1973).
           T enn .R .C iv .P . 60.02(2) specifically provides that otherw ise
           final judgm ents tainted by fraud, misrepresentation, or other
           misconduct may be set aside within one y ear after their entry .
           Judg es need not balance f inality and correctness when a
           timely T enn.R.C iv .P. 60.02(2) motion is filed. If the motion
           is substantiated, they shou ld unhesitatingly set the tainted
           judgm ent aside.

               T he party seeking relief under Tenn.R .C iv .P. 60.02(2) has
           the burden of proof . Trice v. M oyers, 561 S .W .2d 153, 156
           (T enn.1978); H olt v. H ol t, 751 S .W .2d 426, 428 (T enn. C t.
           A pp.1988). In order to succeed, the mov ing party must
           describe the basis for relie f w ith spe cif ici ty , H opkins v.
           H op kins, 572 S .W .2d 639, 640 (T enn.1978), and must show
           by clear and conv incing ev idence that post-judgm ent relief
           is w arrante d.
                                              ***
               A ccordingly , post-judgment relief is w arranted w hen the
           mov ing party prov es w ith clear and convincing ev idence the
           existence of conduct amounting to

               an intentional contrivance by a party to keep
               complainant and the C ourt in ignorance of the real
               fact s touching the matters in litigation, whereby a
               w rong conclusion was reached, and positiv e w rong
               don e to the com pla ina nt's rig hts .

               L eeson v. C he rna u, 734 S .W .2d 634, 638
           (T enn .C t.A pp.1987). B oth w ithholding ev idence and the
           know ing use of perjured testimony can prov ide grounds for
           granting post-judgment relief pursuant to T enn .R .C iv .P .
           60.0 2(2).

D unca n v. D uncan, 789 S .W .2d 557, 563 (T enn. C t. A pp. 1990) (footnote and
some citations omitted).


           D efendant presented no ev idence in the record that A bed and N ama
prev ent ed h im f rom d isc ov ering the “real f act s” a t is sue .




                                               5
III.       C O N C L U S IO N
               S ince this case was tried by the court sitting w ithout a
           jury , w e review the case de novo upon the record w ith a
           presumption of correctness of the finding s of f act by the trial
           court. U nless the ev idence preponderates against the
           finding s, w e must aff irm absent error of law . T.R .A .P. 13(d).

               T he chancellor w as faced w ith conflicting testimony from
           T ay lor on the one hand and K ov sky on the other. A s the trier
           of fact, the chancellor had the opportunity to observe t he
           manner and demeanor of the w itnesses as they testified. T he
           w eight, faith, and credit to be giv en to a witness’ s testimony
           lies in the first instance w ith the chancellor as the trier of
           fact, and the credibility accorded w ill be giv en great w eight
           by the appellate cou rt. M ays v. B rig hto n B ank, 832 S.W .2d
           347, 352 (T enn.A pp.1992); S is k v. Valley F orge Ins. Co., 640
           S .W .2d 844, 849 (T enn.A pp.1982).

Taylor v. Trans Aero C orp., 924 S .W .2d 109, 112 (T enn. C t. A pp. 1995).


           T he ev idence in this case does not preponderate against the finding s of
fact of the chancellor.


           W hat is off ered in this case as “new ly discov ered ev idence” does not
meet the criteria for granting a new trial on this grounds. It is conceded by
appellant that the documentation off ered in the motion for a new trial could hav e
been discov ered before trial by the ex ercise of reasonable diligence. T he action
of the chancellor in ov erruling the motion to alter or amend finding s of f act and
the motion for a new trial is affirmed. S ea y v . C ity o f K noxvill e, 654 S.W .2d 397,
399 (T enn. C t. A pp. 1983); M onday v. M illsaps, 264 S.W .2d 6 (T enn. A pp.
1954); T ipto n v. S mith, 593 S.W .2d 298 (T enn. C t. A pp. 1979).


           T he judgm ent of the chancellor is in all respects aff irmed and the case
is remanded to the C hancery C ourt of D av idson C ounty for such further
proceedings as m ay be n ece ssa ry .      C osts of the appeal are taxed against
D ef end ant , A y ma n A y oub .


                                    _____________________________________
                                    W I L L IA M B . C A I N , J U D G E


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C O N C U R:



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B E N H . C A N T R E L L , P .J ., M .S .


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W I L L IA M C . K O C H , J R ., J U D G E




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