                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

           JGT CORPORATION v. E. HARWELL ANDREWS, ET AL.

                Direct Appeal from the Chancery Court for Davidson County
                   No. 98-3518-III (I) Irvin H. Kilcrease, Jr., Chancellor



                     No. M1999-01395-COA-R3-CV - Decided May 5, 2000


This appeal arises from a dispute over whether a commercial lease was renewed. After lessors
notified lessee that the lease had not been renewed, lessee filed for declaratory judgment on the issue
of whether renewal notice was given timely, asserting an alternative ground of equitable relief from
performance under the “special circumstances” doctrine. Lessors asserted the equitable maxim of
unclean hands, averring that lessee created false evidence to attempt to establish timely compliance
with the lease renewal requirement. Both sides moved for summary judgment, and the Chancellor
entered judgment for lessee based upon the finding of “special circumstances” to excuse untimely
performance by lessee, noting that issues of material fact exist as to timely notice. On this appeal,
lessors allege error by the Chancellor’s award of equitable relief without resolving the unclean hands
issue, along with error in the finding of “special circumstances,” and error in denying lessors’
counterclaim for breach of the implied duty of good faith and fair dealing. Because resolution of the
issue of whether or not renewal notice was given timely is both necessary and dispostive of all other
issues raised in this lawsuit, the order of the Chancellor awarding summary judgment to lessee is
reversed, and this lawsuit remanded for trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and
Remanded

SWINEY , J., delivered the opinion of the court, in which GODDARD , P.J., and FRANKS, J., joined.

Paul S. Davidson, Nashville, Tennessee, and Joel T. Galanter, Nashville, Tennessee for the
appellants, E. Harwell Andrews, Leila H. Fuqua, and Alexander S. Fuqua.

Richard Braun, Nashville, Tennessee, for the appellee, JGT Corporation.

                                             OPINION

                                            Background

              JGT Corporation (“Plaintiff” or “Lessee”) in 1991 entered into a lease concerning
commercial property located in Davidson County. The property was controlled at that time by E.
Harwell Andrews, Leila H. Fuqua (now deceased), and Alexander S. Fuqua (“Defendants” or
“Lessors”). Plaintiff subsequently improved the property and uses it for a business known as
Jonathan’s Village Café. The lease was for an initial period of seven years, with a clause governing
the process for Plaintiff’s option to renew the lease for two, five-year periods. The renewal process
required Plaintiff to provide written notice six months prior to the expiration of the initial lease
period. Defendants asserted Plaintiff failed to provide notice of intent to renew by the contractually
mandated deadline. Plaintiff countered with a renewal letter allegedly sent by a third-party agent
of Plaintiff to Defendants within the required time period. Defendants rejected the letter as a
fabrication of Plaintiff after the renewal deadline had passed and communicated a desire to negotiate
a new lease with Plaintiff. Plaintiff refused to negotiate a new lease, and filed this suit with the
Chancery Court of Davidson County asking for declaratory judgment that the lease was timely
renewed, or, in the alternative, for relief under the equitable doctrine of “special circumstances” from
the contractual renewal provisions.

                 A dispute arose between Plaintiff and Defendants as to whether the renewal option
was timely exercised. Plaintiff, after learning that Defendants had taken steps to list the property as
available for sale or lease, averred that a third party, Hospitality Services One, had sent notice of
Plaintiff’s intent to renew the lease along with other correspondence prior to the six-month deadline.
Hospitality Services One provided employee training and various other services to Plaintiff’s
restaurant. Among the services provided Plaintiff by Hospitality Services One was the totaling of
income pertaining to a periodic percentage of income payment due Defendants under the lease, with
Hospitality Services One sending the information, and apparently the related payment, directly to
Defendants. The notice proffered by Plaintiff was in the form of a letter from Martie Marston, a
principal in Hospitality Services One, addressed to Defendant Alexander Fuqua. Plaintiff alleges
this letter was enclosed with the regular correspondence regarding the income-based lease payment.
Defendant Fuqua acknowledged receiving the regular correspondence, but denied that the renewal
letter was enclosed in the envelope he received.

                Defendants averred that Plaintiff’s agent’s renewal letter was created after the six-
month notice deadline had passed, and, therefore, Plaintiff entered into the Chancery Court with
“unclean hands” through Plaintiff’s reliance upon the Hospitality Services One letter as evidence of
timely exercise of the renewal option. Plaintiff’s Complaint sought declaratory judgment as to
timely exercise of the renewal option, exhibiting the Hospitality Services One letter as evidence, and
also seeking as an alternative remedy relief under the doctrine of “special circumstances” if the
Chancellor found Plaintiff failed to timely renew the lease. Defendants argue that Plaintiff’s claim
for equitable relief is barred under the equitable doctrine of “unclean hands,” averring that Plaintiff’s
agent’s letter exhibited to the Trial Court as proof of timely renewal had been created after the
renewal date had passed, and was, thereby, fraudulent.

               After other pretrial actions not material to the issues on appeal, both Plaintiff and
Defendants filed motions for summary judgment. The Chancellor denied Defendants’ motion for
summary judgment, citing procedural failure by Defendants under T.R.C.P. Rule 56 and further
finding that Defendants failed to state a claim under the law. The Chancellor found that the
statements of undisputed material facts filed by the parties, the respective responses thereto, and the
record as a whole, established material facts in dispute as to whether the letter was timely sent by

                                                  -2-
Plaintiff and received by Defendants, thus precluding summary judgment as to that issue without
addressing the Plaintiff’s assertion of bar by operation of the doctrine of “unclean hands.” The
Chancellor did, however, grant summary judgment in favor of Plaintiff under the equitable doctrine
of “special circumstances,” finding that even if Plaintiff failed to meet the contractual obligation to
provide renewal notice by the deadline, that such requirement would be waived under the
circumstances of this matter. It is from this Order granting summary judgment to Plaintiff that
Defendants appeal.

                                             Discussion

            The Tennessee Supreme Court recently articulated our standard of review for
summary judgment.

       The standards governing an appellate court's review of a motion for summary
       judgment are well settled. Since our inquiry involves purely a question of law, no
       presumption of correctness attaches to the lower court's judgment, and our task is
       confined to reviewing the record to determine whether the requirements of Tenn. R.
       Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997);
       Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991).
       Tennessee Rule of Civil Procedure 56.03 provides that summary judgment is
       appropriate where: (1) there is no genuine issue with regard to the material facts
       relevant to the claim or defense contained in the motion, see Byrd v. Hall, 847
       S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled to a judgment as
       a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857
       S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its
       motion satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
       523, 524 (Tenn.1991). When the party seeking summary judgment makes a properly
       supported motion, the burden shifts to the nonmoving party to set forth specific facts
       establishing the existence of disputed, material facts which must be resolved by the
       trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

       To properly support its motion, the moving party must either affirmatively negate an
       essential element of the non-moving party's claim or conclusively establish an
       affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588
       (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the moving
       party fails to negate a claimed basis for the suit, the non-moving party's burden to
       produce evidence establishing the existence of a genuine issue for trial is not
       triggered and the motion for summary judgment must fail. See McCarley v. West
       Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the
       moving party successfully negates a claimed basis for the action, the non-moving
       party may not simply rest upon the pleadings, but must offer proof to establish the
       existence of the essential elements of the claim.

       The standards governing the assessment of evidence in the summary judgment

                                                 -3-
        context are also well established. Courts must view the evidence in the light most
        favorable to the nonmoving party and must also draw all reasonable inferences in the
        nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall,
        847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the
        facts and the inferences to be drawn from the facts permit a reasonable person to
        reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995);
        Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

        Staples v. CBL & Associates, Inc., E1999-00033-SC-R11-CV, 2000 WL 291431, *4
        (Tenn. 2000).

                 While the parties state the issues differently, the controlling issue in this appeal is
whether the Trial Court erred in granting Plaintiff summary judgment under the theory of “special
circumstances” even though genuine issues of material fact existed as to whether the renewal notice
letter was timely sent, or whether it was created after the renewal deadline and misrepresented to the
Defendants and to the Trial Court as having been mailed timely. A determination of that issue is
necessary and dispostive of this lawsuit. If it is ultimately found in favor of the Plaintiff on that
issue, the renewal notice was given timely under the lease. However, if it is ultimately determined
that the renewal notice letter was created after the fact and misrepresented by Plaintiff both to the
Defendants and to the Trial Court, the doctrine of unclean hands prevents Plaintiff from receiving
the requested equitable relief. Therefore, it is unnecessary to determine whether or not “special
circumstances” existed. If it is found that this renewal notice was given timely, Plaintiff timely
exercised the option. If it is found that the renewal notice was not given timely and was fraudulently
misrepresented to the Defendants and to the Trial Court as having been timely created and mailed,
Plaintiff is not entitled to equitable relief under the “special circumstances” doctrine.

                 The “unclean hands” issue is based upon Defendants’ assertion that Plaintiff, and
others, fabricated, after the renewal deadline ran, a letter of notice that Plaintiff intended to renew
the lease of the commercial property at issue. After reviewing the affidavits, deposition transcripts,
and other evidence filed by Plaintiff and Defendants in support of, and in opposition to, their
respective motions for summary judgment, the Chancellor stated in the Order on appeal that “. . . the
Court finds that genuine issues of material fact exists [sic] as to whether the September 24, 1998
notice letter was timely sent and received.” We agree. The finding that genuine issues of material
fact exist as to whether the letter was sent and received in a timely manner under the lease supports
Defendants’ assertion that Plaintiff’s claims against them may be barred by application of the
“unclean hands” doctrine. Should the proof at trial show that Plaintiff or its agent either fabricated,
participated in the fabrication of or directed the fabrication of the notice letter after the date alleged,
Plaintiff is precluded from seeking equitable relief under the “special circumstances” doctrine.
“Once found to exist, the doctrine of unclean hands repels the unclean plaintiff at the steps of the
Courthouse.” Farmers & Merchants Bank v. Templeton, 646 S.W.2d 920, 924 (Tenn. Ct. App.
1982). However, Plaintiff’s “unclean” conduct must relate to the matter in litigation for the doctrine
to apply to bar equitable relief.

        The doctrine of 'unclean hands' when invoked to any suit in equity must relate to the

                                                   -4-
       particular transaction which is the subject of the litigation. The controlling principle
       is thus stated in Gibson's Suits in Chancery (Section 42, 3d. Ed. by
       Chambliss)[current section 18, 7th Ed., Inman]: 'But the operation of the maxim is
       confined to misconduct connected with the particular matter in litigation; and does
       not extend to any misconduct, however gross, which is unconnected therewith, and
       with which the defendant is not concerned.'

       Chappell v. Dawson, 308 S.W.2d 420, 421 (Tenn. 1957).

                The alleged misconduct cited by Defendants to the Trial Court and to this Court on
appeal is connected with the matter in litigation so as to properly raise the issue of applying the
equitable doctrine of “unclean hands” to bar Plaintiff’s requested equitable relief. If the letter
proffered by Plaintiff and presented to the Trial Court as evidence of its timely renewal is found to
have been created after the fact as averred by Defendants, it would constitute a fraud upon the Court.
If the renewal notice letter was prepared timely and mailed as represented by the Plaintiff, Plaintiff
wins. If the renewal notice letter was created after the fact and misrepresented by Plaintiff to
Defendants and the Trial Court as being timely created and mailed, Plaintiff is not entitled to the
requested equitable relief, and Defendants win.

                                          CONCLUSION

       The Order of the Trial Court is reversed, and this lawsuit remanded for further proceedings
consistent with this Opinion. Costs of this appeal are taxed to the appellee, JGT Corporation.




                                                 -5-
