                   IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                       Assigned on Briefs, December 12, 2003

      BRIDGECOURT APARTMENTS PARTNERSHIP v. CARMEN H.
                        ELLERBE

                  Direct Appeal from the Chancery Court for Knox County
                     No. 155190-2    Hon. Daryl R. Fansler, Chancellor

                                               FILED FEBRUARY 2, 2004

                                 No. E2003-01298-COA-R3-CV



Plaintiff paid off mortgage on apartments and then sued for an accounting, alleging overpayment.
The Trial Court invoked the voluntary payment rule and dismissed the case. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, J. delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Gene A. Stanley, Jr., Knoxville, Tennessee, for Appellants.

Thomas Privette, Jr., Knoxville, Tennessee, for Appellee.



                                             OPINION


                Plaintiff, Bridgecourt Apartments Partnership, acquired title to an apartment complex
in Knoxville from Bel Air Associates (“Bel Air”) a debtor in bankruptcy. At the time plaintiff
acquired the apartment complex, defendant Carmen H. Ellerbe held a deed of trust on the property
secured by a lien which constituted a first mortgage on the apartments.

                At or about the time plaintiff acquired title to the property Ellerbe, by counsel,
notified the bankruptcy attorney for Bel Air of default. Subsequently, plaintiff’s partners negotiated
with defendant over the amount of the indebtedness, and ultimately paid defendant $472,797.25 to
liquidate the outstanding indebtedness on the Ellerbe note, which payment was precipitated allegedly
due to the necessity of plaintiff’s closing a construction loan for renovation of the apartments.

              This action was then brought for an accounting which asked the Court for a Judgment
for the amount of any payment in excess of the true and correct amount of the indebtedness.

                In defendant’s Answer, she specifically denied she failed to perform any conditions,
as alleged, and as an affirmative defense said that the plaintiff’s payment was voluntarily made with
full knowledge of the facts and without any fraud, duress or extortion, and plaintiff was therefore
estopped from recovering. After the evidentiary hearing, the Chancellor filed a Memorandum
Opinion and we quote, in pertinent part:

               . . . the plaintiffs in this case say that the payment was made under threat of
               foreclosure and therefore they were under duress. Certainly, Mr. Wise [a partner and
               attorney for plaintiff] was knowledgeable of all the facts and, indeed, he knew that
               for a sum smaller than what he was paying he could have reached the same result;
               that is, a release of the deed of trust. Yet the Plaintiffs chose to pay a larger amount
               in an effort to preserve the right to contest the reasonableness of the attorneys’ fees
               and the calculation of the interest rate at a later date.

               ...

                       There was an option available to the Plaintiffs; they could have paid what
               they deemed owed and brought an action against the holder of the note, which would
               be Ms. Ellerbe, asking the Court to order her to release that deed of trust in as much
               as the underlying obligation had been satisfied, and ask the Court to impose statutory
               sanctions for her failure to release it.

               . . . But the Plaintiffs made a business decision in this case to go forward with the
               payment so they could arrange financing. And if there was a real duress, it was from
               the other lenders.

                      It was made with all the knowledge of the facts, there was nothing
               unconscionable. They didn’t like it . . . But there’s nothing unconscionable about
               what has taken place here. There’s certainly nothing illegal about what has taken
               place. There’s been no statutory scheme cited to the Court, it’s not a violation of
               public policy, and it fits squarely in the voluntary-payment rule.

                The Court then entered Judgment dismissing the case, and plaintiff has appealed.
Plaintiff argues that the evidence preponderates against the Chancellor’s finding that plaintiff
voluntarily and with knowledge of the facts, paid the indebtedness in a disputed amount on a
reservation of rights payment.



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                Plaintiff argues that defendant’s attorney had indicated a foreclosure would follow
unless plaintiff paid the amount of the indebtedness demanded by appellant and that amounted to
duress which rendered the payment involuntary. In response, defendant points to the testimony of
Mr. Wise who was an attorney and a partner in Bridgecourt, who testified that defendant applied no
pressure and had done nothing, but that the pressure came from the “Yount Deal” (another
transaction). Interestingly, he explained that the pressure was due to interim financing, by a loan that
had matured and had to be paid off.

                 A concise statement of the requisites for business compulsion or economic duress
is set forth in 25 Am.Jur.2d Duress and Undue Influence, §7:

                      To constitute business compulsion or economic duress, there must be a
               wrongful threat, financial distress must be caused by the wrongful threat, and there
               must be no reasonable alternative to the terms presented by the wrongdoer. The
               pressure must be wrongful, and not all pressure is wrongful. Actions, not motives,
               must cause economic duress.

                       Business compulsion is not established merely by proof that consent was
               secured by the pressure of financial circumstances, especially where the party
               claiming duress is experienced in business and not a novice, or by the fact that one
               party insisted upon a legal right and the other party yielded to such insistence.
               Consistent with this principle, it is recognized that the doctrine of “business
               compulsion” cannot be predicated upon a demand which is lawful, or upon doing or
               threatening to do that which a party has a legal right to do. . . .

              Tennessee authorities are in accord with this statement. See Dockery v. Estate of
Massey, 958 S.W.2d 346-348 (Tenn. Ct. App. 1997); Jaffe v. Bolton, 817 S.W.2d 1927 (Tenn. Ct.
App. 1991); McClellan v. McClellan, 873 S.W.2d 350-352 (Tenn. Ct. App. 1993).

               The evidence does not preponderate against the Trial Court’s findings of fact. Tenn.
R. App. P. 13(d). On that basis the Trial Court invoked the voluntary payment rule which holds that
a voluntary payment, even though the person making the payment protests the amount the money
so paid may not be recovered on the ground the claim was illegal. Whitley v. Bry’s, 15 Tenn. App.
86 (1932).

               In this case, the partners were experienced in business, knew the facts and
circumstances and their rights, yet elected to pay the claimed amount. We conclude the voluntary
payment rule is applicable. See Standard Oil Co. v. Storage Co., 163 Tenn. 565-575 (1931).

                Next, plaintiff argues that it is entitled to a credit for an insurance premium that the
Chancellor failed to consider. An examination of the documents relating to this transaction reveal
that an agreement between defendant and a third party which plaintiff relies upon did not establish
a basis for recovery.


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               Finally, plaintiff argues that defendant did not comply with the terms and conditions
in the mortgage note to enable her to accelerate the unpaid indebtedness and enforce the penalty
provisions in the note for default. The Chancellor held that defendant had met the conditions
required of her under the mortgage and the evidence does not preponderate against his finding.
Tenn. R. App. P. 13(d).

                For the foregoing reasons we affirm the Judgment of the Trial Court and remand, with
the cost of the appeal assessed to Bridgecourt Apartments Partnership.




                                                      _________________________
                                                      HERSCHEL PICKENS FRANKS, J.




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