DEWEY RICHARD FARLEY and wife, )
PAMELA FARLEY, and                  )
TOMMY WEST,                         )
                                    )
       Plaintiffs/Appellants,       )
                                    )        Appeal No.
                                    )        01-A-01-9510-CV-00429
VS.                                 )
                                    )        Putnam Circuit
                                    )        No. J-5507 and J-5511
JAMES CLAYTON, Individually and     )
d/b/a LUV HOMES, CLAYTON            )
HOMES, INC., Individually and d/b/a )
LUV HOMES, and CH OF AL, INC.,
Individually and d/b/a LUV HOMES,
                                    )
                                    )
                                                                 FILED
                                    )
       Defendants/Appellees.        )                                May 8, 1996

                                                                Cecil W. Crowson
                    COURT OF APPEALS OF TENNESSEE              Appellate Court Clerk
                      MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE CIRCUIT COURT OF PUTNAM COUNTY
AT COOKEVILLE, TENNESSEE

THE HONORABLE JOHN TURNBULL, JUDGE



DAVID DAY
ROBERT DURHAM
19 South Jefferson Avenue
Cookeville, Tennessee 38501
      Attorneys for Plaintiffs/Appellants Dewey Richard Farley and Pamela Farley

MARTELIA T. CRAWFORD
310A East Broad Street
Cookeville, Tennessee 38501
      Attorney for Plaintiff/Appellant Tommy West

TOM CORTS
Third Floor, Noel Place
200 Fourth Avenue, North
Nashville, Tennessee 37219-8985
       Attorney for Defendants/Appellees


                         AFFIRMED AND REMANDED


                                             BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
LEWIS, J.
                                 OPINION


              This is an action for misrepresentations and inducement of breach of

contract relating to the trial and settlement of a personal injury case. The original

plaintiffs and a co-defendant have sued the other defendants for misrepresenting or

concealing material facts which (1) induced the plaintiffs to settle their original claim

for less than its worth, and (2) induced the defendants’ insurance company not to

represent the other defendant. The Circuit Court of Putnam County granted summary

judgment to the defendants. We affirm.



                                           I.



              In the summer of 1990 an entity known as Luv Homes operated a mobile

home sales lot in Cookeville. Tommy West managed the Cookeville operation. On

August 27, 1990, Dewey R. Farley, who worked for a contractor hired by Luv Homes

to deliver one of the trailers, was helping move the furniture out of the unit. Cheryl

West, Tommy West’s wife, was hauling the furniture in her El Camino which she

owned jointly with Tommy West. Mr. Farley was standing in the bed of the vehicle

holding some of the furniture upright when the truck lurched forward, throwing Mr.

Farley out and onto the ground. He suffered severe and permanent injuries.



              Mr. Farley and his wife sued Tommy and Cheryl West, Luv Homes, and

the alleged owners of Luv Homes, including James Clayton individually.              The

insurance company providing coverage for Luv Homes and its associated entities, but

did not provide coverage for Tommy West. Mr. West, after retaining his own private

attorney, left town and broke off communication with his attorney and the other

defendants. Consequently, the plaintiffs took a default judgment against him. After

the trial started in November of 1991, the Luv Homes/Clayton defendants settled their



                                          -2-
case with the Farleys for $125,000. The jury returned a verdict against the Wests for

$620,000.



              Mr. West resurfaced, and in 1993 he and the Farleys sued the Luv

Homes/Clayton insurance carrier for failing to defend Mr. West in the original action.

In September of 1994, all the parties to that action compromised their claims and the

insurance carrier paid the Farleys $298,502.63 in return for their release of all claims

against the insurance company. Tommy West released his claims against the

insurance company and the Farleys released Tommy West from any further liability

arising out of the 1990 accident.



              On November 4, 1994 the Farleys and Mr. West in separate actions

sued the Luv Homes/Clayton defendants, alleging that they misrepresented or

suppressed facts during the earlier litigation that caused the Farleys to settle their

case against the defendants for less that its worth and caused the defendants’

insurance company to breach its obligation to defend Mr. West. The complaint

specifically charged that the defendants negligently or intentionally (1) misrepresented

or withheld the facts pertaining to Cheryl West’s employment with the defendants, (2)

misrepresented the facts concerning the lease of the El Camino by the defendants,

(3) misrepresented facts concerning Cheryl West’s intoxication at the time of the

accident, and (4) misrepresented or suppressed the fact that Tommy West admitted

he and Cheryl West were negligent in causing the accident.



              The defendants answered each complaint. They did not plead res

judicata but did plead the releases entered in the prior actions as affirmative defenses.

Subsequently, the defendants moved for summary judgment and raised the additional

defense of witness immunity. The plaintiffs joined issue on the defenses raised in the

motion. The trial judge granted summary judgment to all defendants.




                                          -3-
                                            II.

                                     Tommy West



              We affirm the judgment in Tommy West’s case because he had specific

knowledge concerning the truth of all of the facts allegedly misrepresented or

suppressed, and by obtaining a judgment to enforce the insurance contract, he has

obtained all the relief to which he is entitled.



              An essential requirement of any action for fraud, deceit, failure to

disclose or negligent or innocent misrepresentations is detrimental reliance on a false

premise. See Shwab v. Walters, 147 Tenn. 638, 251 S.W. 42 (1922); Tartera v.

Palumbo, 224 Tenn. 262, 453 S.W.2d 780 (1970); Williams v. Van Hersh, 578 S.W.2d

373 (Tenn. App. 1978); Dozier v. Hawthorne Development Co., 37 Tenn. App. 279,

262 S.W.2d 705 (1953). “Fraud involves deception and if one knows the truth, and

is not deceived, he is not defrauded.” Freeman v. Citizens National Bank, 167 Tenn.

399 at 409, 70 S.W.2d 25 at 29 (1934).



              Mr. West was the agent of the Clayton defendants. He ran the operation

in Cookeville and was the person through whom the Clayton defendants were charged

with knowledge that Cheryl West was drunk, that she was an employee

of Luv Homes, or that the El Camino was leased to the Clayton defendants. He was

surely the best witness to the fact that he had admitted liability. Since Mr. West was

not deceived by any of the defendants, he cannot sue them for fraud and deceit.



              We are also convinced that he cannot now sue the other defendants for

inducing the insurance company to deny coverage in the original action by the

Farleys. The undisputed facts show that Mr. West joined the Farleys in an action to

enforce the insurance contract. That action ended in an agreed judgment for the

Farleys and a complete release of any liability on the part of Mr. West.


                                           -4-
              Although a party to a contract may successfully prosecute an action to

enforce it and still maintain an action against third parties for inducing the breach, the

law permits only one recovery, and any payments made by the one who breached the

contract must be credited to the one who induced the breach. TSC Industries, Inc.

v. Tomlin, 743 S.W.2d 169 (Tenn. App. 1987). In this case, Mr. West does not allege

how he has suffered any damages beyond the judgment awarded to the Farleys in the

original action. That judgment has now been completely discharged and Mr. West

has obtained a release from all liability. Therefore, the undisputed facts show that an

essential element of his cause of action is missing from this case. See Hart v. First

National Bank of Memphis, 690 S.W.2d 536 (Tenn. App. 1985).



                                           III.

                                      The Farleys



              The Farleys allege that because the Clayton defendants misrepresented

or suppressed certain material facts in the original litigation, they (the Farleys) were

induced to settle their claims for far less than their actual worth. The defendants rely

on the release signed by the Farleys in the original action and argue in the alternative

that any separate cause of action was barred by the witness immunity doctrine.




                                    a. The Release



              In addition to language releasing the Clayton defendants from all liability

arising out of the accident on August 27, 1990, the release contained the following:



                     Releasors elect to and do assume all risks for
              claims heretofore or hereafter arising, known or unknown,
              asserted against Releasees in the above-described


                                          -5-
              litigation and Releasors expressly include within the scope
              of this Release all such claims.

                    Releasors warrant that no promise or inducement
              has been offered or made except as herein set forth; that
              this Release is executed without reliance on any
              statement or representation by Releasees or by any
              agents or representatives of Releasees, and Releasors
              hereby acknowledge and assume all risk, chance, or
              hazard that their injuries or damages may be or become
              permanent, progressive, greater, or more extensive than
              is now known or anticipated.



              The only reference to the release in the Farleys’ initial brief is a

statement that the release is “ineffective in the face of misrepresentation.” We take

that as a statement of the familiar rule that a release may be set aside if it was

procured by fraudulent misrepresentations. Brundige v. Railroad, 112 Tenn. 526, 81

S.W. 1248 (1903); Crigger v. Mutual Benefit Health & Accident Association, 17 Tenn.

App. 636, 69 S.W.2d 907 (1933). The misrepresentations must relate to material

facts, Chattanooga Ry & Light Co. V. Glaze, 146 Tenn. 49, 239 S.W. 394 (1921), and

reliance on the misrepresentations must be justified. Evans v. Tillett Bros. Const. Co.,

Inc., 545 S.W.2d 8 (Tenn. App. 1976).



              In this case the alleged misrepresentations relate to the very issues that

were being tried in the original action. We think, as a matter of law, that a release

executed under such circumstances cannot be set aside for fraud. Parties to a lawsuit

cannot justifiably rely on the representations of the adverse parties when success on

the merits requires proof that the representations were false. For the same reasons

that a judgment may not be set aside because of the “falsity of the internal evidence

on which it was procured,” see Thomas v. Dockery, 33 Tenn. App. 695 at 703, 232

S.W.2d 594 at 598 (1950), a release procured by that same internal evidence should

also be immune from an attack based on fraud.



                  b. The Separate Action for Fraud and Deceit



                                         -6-
              The Farleys maintain that the release has nothing to do with their cause

of action for fraud and deceit; that they have alleged a separate and distinct cause of

action. But, even if we view the matter in that light, the same considerations dictate

that the cause of action does not exist. As a matter of law one party to a lawsuit

represented by counsel, cannot justifiably rely on the internal evidence presented by

the opposite parties.



                                c. Witness Immunity



              What we have previously said in this section of the opinion is, perhaps,

just another way of stating the witness immunity doctrine. As we stated in Buckner

v. Carlton, 623 S.W.2d 102 at 108 (1981):



              The general rule is that testimony given in a judicial
              proceeding, if pertinent thereto, is protected by an
              absolute privilege even though given maliciously and with
              knowledge of its falsity. And accordingly, it is also the
              general rule that no civil action for damages lies for false
              testimony or for subornation of false testimony or for
              conspiracy to give or procure false testimony.

See 31 A.L.R. 3d, False Testimony-Civil Conspiracy, § 1423 at § 2.



              The Farleys argue, however, that the defendants’ representations were

either a part of a larger conspiracy or were made prior to the original action. As to the

larger conspiracy theory, we think this case is just like Buckner v. Carlton where the

plaintiff alleged that the defendant was out to “get” him and maliciously damage his

reputation in the community. Nevertheless, we held that the defendant “committed

no overt acts separate and apart from the false testimony, the false statements to

investigators and the conspiratorial conversations . . . .” 623 S.W.2d at 108. In this

case all of the allegations of misconduct relate to the defendants’ alleged purpose to

defeat the Farleys’ claims. Thus, the facts alleged do not bring this case within the

larger conspiracy exception to witness immunity.


                                          -7-
              As to the assertion that at least some of the false statements made by

the defendants were prior to the original action, we think that all of the statements

come within the privilege. If they were not made in connection with the litigation over

the Farleys’ claims, they would be irrelevant. Otherwise, they come within the

privilege.



              The judgment of the trial court is affirmed and the cause is remanded

to the Circuit Court of Putnam County for any further proceedings necessary. Tax the

costs on appeal to the appellants.




                                          _______________________________
                                          BEN H. CANTRELL, JUDGE

CONCUR:


_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION


_______________________________
SAMUEL L. LEWIS, JUDGE
