                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       April 9, 2008 Session

              WILLIAM A. BAKER, II v. HOMER J. JOHNSON, SR.

                       Appeal from the Circuit Court for Davidson County
                         No. 05C-2305     Thomas W. Brothers, Judge



                    No. M2007-01992-COA-R3-CV - Filed January 23, 2009


Shortly after the parties entered into a contract for the sale of a piece of real estate, the seller refused
to transfer possession and informed the buyer that he did not intend to close on the property. The
buyer filed suit for breach of contract and demanded specific performance. The seller denied that
the contract of sale was valid or enforceable and presented a number of different and inconsistent
allegations to support his contention. The trial court granted summary judgment to the buyer. We
affirm.

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

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the court, in which FRANK G. CLEMENT ,
JR. and RICHARD H. DINKINS, JJ., joined.

Randall Pierce, Mt. Juliet, Tennessee, for the appellant, Homer J. Johnson, Sr.

Jeffrey Spark, Nashville, Tennessee, for the appellee, William A. Baker, II.

                                               OPINION

                                      I. A Real Estate Contract

       On July 26, 2005, Homer J. Johnson Sr. (Seller) and William A. Baker II (Buyer) entered into
a Purchase and Sale Agreement on a residential lot and rental home located at 2016 12th Avenue
South in Nashville. The rental home was in need of repair. The contract recited a price of $112,000,
and stated that the property was being purchased “as-is.” The only contingency set out in the
contract made the buyer’s duty to close dependent on his ability to obtain adequate financing. The
agreement declared that in the event of a breach leading to legal action for its enforcement, the
prevailing party was entitled to recover all resulting costs, including reasonable attorney fees.1

        The contract provided that possession of the property would pass to the buyer at 2:00 p.m.
on July 26, 2005, and that closing would take place on October 28, 2005. Both Homer Johnson and
his son Marvin were present at the execution of the contract, and both read it before Homer Johnson
signed it. On July 27, 2005, the day after execution, Marvin Johnson called Mr. Baker and told him
that his father would not transfer possession of the property and that he would not close on the
contract.

        On August 3, 2005, William Baker filed a complaint in the Davidson County Circuit Court
for breach of contract, asking the court to grant him specific performance. A copy of the signed
Purchase and Sale Agreement was attached as an exhibit to the complaint. Mr. Johnson filed a pro
se answer, in which he acknowledged entering into negotiations about a purchase and sale agreement
with Mr. Baker, but denied that the document executed on July 26, 2005 was a valid contract.

        The answer alleged that Mr. Johnson had informed Mr. Baker that there was an existing
contract of sale on the property between Marvin Johnson and a woman named Denita Williams, and
that termination of that contract would have to occur before the Purchase and Sale Agreement would
become effective. Mr. Johnson also claimed that he had informed Mr. Baker that the Purchase and
Sale Agreement could not be finalized if the appraisal value of the property increased to more than
$130,000, because in such an event the price would have to be renegotiated.

         Mr. Johnson’s deposition was taken on May 25, 2006. Under questioning about the
allegations in his answer as to a contract of sale between Marvin Johnson and Denita Williams, he
testified that Marvin Johnson was under contract to renovate the property and that Denita Williams
was going to rent it, but he acknowledged that there was no contract of sale. Mr. Johnson also
suggested that the Purchase and Sale Agreement was not valid because his wife had not signed it and
that they “sign all agreements and transactions together.” He was then shown the deed from his own
purchase of the property in 2002, on which his name alone appeared as grantee.2 Mr Johnson was
also shown the Purchase and Sale Agreement that Mr. Baker had attached to the complaint. Mr.
Johnson identified it as the contract he had signed, but continued to insist that it was meant to be a
temporary agreement, by which we believe him to have meant that it was a tentative agreement.



         1
          The contract was executed on a standard seven-page printed form copyrighted by the Tennessee Association
of Realtors. The form contained blank lines for the parties to enter the specific terms of the contract and for the necessary
signatures.


         2
          The deed recited that the transfer was from “Johari Holden Bankston, unmarried” to “Homer G. Johnson,
married.” At one point in the deposition, Mr. Johnson tried to bring the validity of the deed into question by noting that
his name was actually Homer J. Johnson, Jr. After a great deal of questioning, he finally acknowledged that he did in fact
buy the property from Ms. Bankston on August 14, 2002.

                                                            -2-
        On May 25, 2007, Mr. Baker filed a motion for summary judgment. On the same date, he
filed an affidavit in which he swore, among other things, that the contract he had attached to his
complaint was the very document that Mr. Johnson had signed two years earlier. He also filed a
statement of undisputed material facts. See Tenn. R. Civ. P. 56.03.

        Mr. Johnson then filed a response to Mr. Baker’s statement of undisputed material facts and
a memorandum in opposition to the motion for summary judgment. In those filings, he raised new
allegations to support his contention that the Purchase and Sale Agreement he signed on July 26,
2005 was not a valid contract of sale. He claimed that he had made a counter-offer which Mr. Baker
rejected, that Mr. Baker had failed to provide him with earnest money, and that the contract expired
before the parties reached a meeting of the minds.

        In support of his allegations, he submitted a new version of the Purchase and Sale Agreement
which had not been presented or alluded to during discovery or as part of any prior court filings. His
version was a duplicate of the copy that had been submitted by Mr. Baker and identified in
deposition by Mr. Johnson as the one he had signed, except that it included some hand-written
insertions in places that had been left blank in the original document.3

        Mr. Johnson also submitted a document purporting to be his alleged counter-offer to Mr.
Baker. The document recited a price of $200,000, contingent upon payment by the buyer of $5,000
in earnest money and upon a commitment in writing by Marvin Johnson “to terminate his purchase
contract of above premises.” Like his new version of the Purchase and Sale Agreement, this
document was not mentioned during any prior proceedings in this case. The signature line included
Mr. Johnson’s signature and recited a date of July 26, 2005 and a time of 4:30 p.m. Mr. Johnson did
not include an affidavit testifying to the authenticity of either of the documents he submitted, as is
required by Tenn. R. Civ. P. 56.06.

        The summary judgment motion was heard on July 27, 2007. Mr. Johnson appeared pro se.
He again argued that he believed the Purchase and Sale Agreement to be a temporary agreement.
At the conclusion of argument, the trial court declared that it was granting summary judgment to Mr.
Baker. The final order memorializing the court’s decision was filed on August 2, 2007.




         3
          Paragraph 3 of the agreement dealt with earnest money, and included a line for an amount to be filled in. That
line had been left blank in the original document and a large X had been drawn across the face of the paragraph. In Mr.
Johnson’s version, the amount of $5,000 was written in the blank, while the same X remained in place.

         The last page of the contract included several boxes for signatures. The printed portion of one box reads, “The
foregoing offer is ACCEPTED,” followed by places for date, time and signature. Mr. Johnson’s signature is found in
that box on both versions of the document. Below it, the printed portion of another box reads, “The Sellers have
COUNTERED this offer subject to the terms of the attached Counter offer(s) or the changes made herein,” followed
again by places for date, time and signature. That box was left blank in the original document, but Mr. Johnson’s
signature is found there in the version he submitted.



                                                          -3-
         Among other things, the order stated that “[t]he court finds that the Defendant is not credible,
based upon the contradictory statements made in his answer, at his deposition and in the response
filed to this motion.” The court also found that Mr. Johnson had presented fabricated evidence. Mr.
Johnson was ordered to execute all the documents necessary to transfer the property to Mr. Baker
upon tender of the purchase price of $112,000, and to pay Mr. Baker $9,183.50 as compensation for
reasonable attorney fees and expenses. This appeal followed.

                                                      II. Analysis

         The requirements for a grant of summary judgment are well-known. Such a judgment may
be granted only when the filings supporting the motion show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P.
56.04; Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004); Pero's Steak & Spaghetti House
v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Further,
the trial court must consider the evidence in the light most favorable to the non-moving party, and
must afford that party all reasonable inferences. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301,
307 (Tenn. 2008); Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005); Doe v. HCA Health
Services, Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis Housing Authority. v. Thompson, 38
S.W.3d 504, 507 (Tenn. 2001).

        A corollary of the above requirements is that they generally preclude the trial court from
making determinations of witness credibility. Morris v. Columbia Construction Co., 109 S.W.3d
314, 316 (Tenn. Ct. App. 2003) (citing Poole v. First National Bank of Smyrna, 196 S.W.2d 563,
568 (Tenn. Ct. App. 1946). “Issues of witness credibility present issues of fact and must be
construed in favor of a nonmoving party when considering a motion for summary judgment.” A
related corollary is that the court is not entitled to weigh the evidence when evaluating a motion for
summary judgment. Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996); Bellamy v. Federal
Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988); Byrd v. Hall, 847 S.W.2d at 211; Burgess v.
Harley, 934 S.W.2d 58, 66 (Tenn. Ct. App. 1996).

        Mr. Johnson’s attorney4 seizes upon these principles to attack the trial court’s ruling on two
fronts. First, he argues that the court’s statement that Mr. Johnson was not credible shows that it
based its summary judgment decision upon an impermissible determination of witness credibility.
Second, he argues that by designating the contract presented with Mr. Baker’s complaint as the
original true document, and preferring it to the one presented later by Mr. Johnson, the court
impermissibly weighed the evidence.

         Before addressing these arguments, we note that no presumption of correctness attaches to
a trial court’s grant of summary judgment. Draper v. Westerfield, 181 S.W.3d at 288; BellSouth
Advertising & Publishing Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland


        4
            Although Mr. Johnson acted pro se during the trial court proceedings, he retained an attorney for this appeal.



                                                            -4-
Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d
181, 183 (Tenn. 2000). Accordingly, this court must review the record de novo and make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been met. Eadie v. Complete
Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn.
2004); Staples v. CBL & Assoc., 15 S.W.3d 83, 88 (Tenn. 2000).

        Turning to the final order in this case, we note that the court’s comment as to Mr. Johnson’s
credibility was part of a broader discussion of the defects in the proof he presented. The court did
not base its finding of lack of credibility upon observation of Mr. Johnson’s demeanor, but “upon
the contradictory statements made in his answer, at his deposition and in the response filed to this
motion.” The court correctly noted that Mr. Johnson had the opportunity to assert the existence of
any counter-offer in his answer, at his deposition, or in any discovery responses, but that he failed
to do so until after Mr. Baker filed his motion for summary judgment.

        But even more damaging to Mr. Johnson’s case than this inexplicable delay was his reliance
on different and contradictory allegations as to matters about which he himself should have had
direct knowledge. In his answer, he alleged that a separate contract of sale between his son and
Denita William rendered the Purchase and Sale Agreement temporary, even though Marvin Johnson
had no ownership interest in the property. Then in his deposition he admitted that no such separate
contract of sale existed. In his answer he also alleged that he informed the buyer that the contract
would not be finalized if the appraisal of the property increased beyond $130,000. However, in his
response to the buyer’s summary judgment motion he abandoned that allegation, and he insisted
instead that he had made a counter-offer which the buyer did not accept.

        Such contradictory assertions not only destroy the credibility of the person making them, but
they force the trial court to disregard them as a matter of law. Ayers v. Rutherford Hospital, 689
S.W.2d 155, 162 (Tenn. Ct. App. 1984). Our courts have long held that mutually contradictory
statements by the same witness are “no evidence” of the fact sought to be proved. Church v. Perales,
39 S.W.3d at 170 (citing Johnston v. Cincinnati N.O. & T.P. Ry., 240 S.W. 429, 436 (Tenn. 1922).
Another expression of the same idea is that “[c]ontradictory statements of a witness in connection
with the same fact have the effect of cancelling each other out.” Tibbals Flooring Company v.
Stanfill, 410 S.W.2d 892, 896 (Tenn. 1967); Taylor v. Nashville Banner Publishing Co., 573 S.W.2d
476, 482 (Tenn. Ct. App. 1978); State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993).
However, the cancellation rule applies only if the allegedly contradictory statements are unexplained
or if neither statement can be corroborated by other competent evidence. Church v. Perales, 39
S.W.3d at 170; State v. Matthews, 888 S.W.2d at 450.

        Mr. Johnson did not explain why he made mutually contradictory allegations at different
stages of the proceedings. Nor did he present competent evidence of any of these allegations. The
court observed that neither Mr. Johnson’s responses nor the alleged counter-offer he presented was
accompanied by a supporting affidavit. Rule 56 declares that when faced by a properly-supported
motion for summary judgment, the non-moving party may not rest on the mere allegations or denials



                                                -5-
of his pleadings, but “by affidavits or otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.” Tenn R. Civ. P 56.06.

       It is therefore well-settled that on a motion for a summary judgment, disputes as to material
facts may be created only by affidavits or other sworn evidence of facts, and not merely by unsworn
generalized assertions in pleadings. Third National Bank in Nashville v. Celebrate Yourself
Productions, 807 S.W.2d 704, 707 (Tenn. Ct. App. 1990); Mason v. Pearson, 668 S.W.2d 656, 661
(Tenn. Ct. App. 1983); Wachovia Bank & Trust Co. v. Glass, 575 S.W.2d 950, 956 (Tenn. Ct. App.
1978). Thus, although Mr. Johnson asserted in his answer that the parties intended the Purchase and
Sale Agreement to be tentative, such an assertion is not evidence.

        Rule 56.06 also requires that an affidavit be attached to and served with all “sworn or
certified copies of all papers or parts thereof . . .” which are submitted for the court’s consideration
in summary judgment proceedings. The purpose of that requirement is to provide reasonable
assurances of the authenticity of such documents.5 Because of Mr. Johnson’s failure to submit such
an affidavit, the trial court ruled that his alleged counter-offer should be stricken and not considered.
The court’s action did not amount to “weighing the evidence,” but rather excluding from
consideration evidence that was not probative because it was not competent.

       If we disregard all the unsupported allegations in the record as well as the documents
submitted by Mr. Johnson, which are likewise unsupported by affidavit, very little real evidence
remains to be considered, mainly consisting of the Purchase and Sale Agreement, Mr. Baker’s
supporting affidavit, and Mr. Johnson’s deposition. The Purchase and Sale Agreement, which
appears regular on its face, purports to bind Mr. Baker to buy, and Mr. Johnson to sell, the subject
property for an agreed-upon price of $112,000. Mr. Johnson’s signature appears on the last page of
the document, in the place designated for acceptance of its terms.

       In his deposition, Mr. Johnson identified the Purchase and Sale Agreement presented as the
one he had signed. He acknowledged that he had the opportunity to read it, but testified that he
didn’t read it “word by word” before signing it. “The law presumes that persons who sign
documents, having been given the opportunity to read them, are bound by their signatures.” Church
v. Perales, 39 S.W.3d at 161; Solomon v. First American National Bank, 774 S.W.2d 935, 943
(Tenn. Ct. App. 1989).

        The only contingency set out in the contract was the buyer’s ability to obtain adequate
financing. However, Mr. Johnson insisted that the contract was a “temporary” agreement because
the parties agreed that it was subject to additional contingencies, which the parties did not put in
writing. We note that Paragraph 17A of the contract reads, “[t]his Agreement constitutes the sole
and entire agreement between the parties hereto and no modification of this agreement shall be



        5
        Another section of Rule 56 which serves the same purpose, Tenn. R. Civ. P. 56.08, authorizes the court to
impose monetary penalties on parties who present affidavits “in bad faith or solely for purpose of delay.”

                                                      -6-
binding unless signed by all parties or assigns to this agreement. No representation, promise, or
inducement not included in this Agreement shall be binding upon any party hereto.”

        The language of Paragraph 17A echoes a basic rule of contract interpretation that parol
evidence is not admissible to contradict or vary the terms of a written contract, and any and all prior
oral agreements are considered to have been merged into the writing. See, generally, 7 TENN . JUR.
§ 60 Contracts (2005). Thus, even if we consider Mr. Johnson’s deposition testimony in the light
most favorable to him, and give him the benefit of all reasonable inferences arising from it, such
testimony would still not raise a genuine issue of material fact so as to preclude the grant of summary
judgment to Mr. Baker.

        Finally, we note that even if Mr. Johnson had succeeded in establishing the authenticity of
the documents he submitted, Mr. Baker would still be entitled to prevail. It is a well-established
tenet of contract law that once a party has formed a contract by accepting an offer, he cannot
subsequently vary the terms of that contract by presenting a counter-offer to the other party. Both
versions of the Purchase and Sale Agreement contain Mr. Johnson’s signed acknowledgment that
the buyer’s offer was accepted at 2:00 p.m. on July 26, 2005. The signature on the purported
counter-offer bears the same date, but recites a time of 4:30 p.m. Thus, even if such a counter-offer
had been presented to Mr. Baker, it would have had no legal effect.

                                                 III.

      The judgment of the trial court is affirmed. We remand this case to the Circuit Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Homer J. Johnson, Sr.



                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, P.J., M.S.




                                                 -7-
