                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                         November 16, 2010 Session

FLOYD E. BELL v. ELLER MEDIA COMPANY, A Tennessee Corporation

              Direct Appeal from the Chancery Court for Shelby County
                   No. CH-07-0700     Walter L. Evans, Chancellor


               No. W2010-01241-COA-R3-CV - Filed January 20, 2011


Pursuant to a lease agreement, Defendant was allowed to place a billboard on Plaintiff’s
building. After the billboard allegedly caused damage to Plaintiff’s building, Plaintiff
notified Defendant. Defendant then sent a letter to Plaintiff terminating the lease, but
Plaintiff claims Defendant later agreed to remove the billboard and make repairs to his
building. When such repair and complete removal were not made, Plaintiff filed suit alleging
breach of contract and promissory estoppel. Defendant moved for summary judgment, which
the trial court granted, and we affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Gregory D. Cotton, Memphis, Tennessee, for the appellant, Floyd E. Bell

Robert L. J. Spence, Jr., Bryan M. Meredith, Memphis, Tennessee, for the appellee, Eller
Media Company
                                               OPINION

                               I.   F ACTS & P ROCEDURAL H ISTORY


        According to Floyd E. Bell (“Plaintiff”), Plaintiff purchased a building located at 1561
Elvis Presley Blvd. Memphis, Tennessee, in July 1989. Upon purchase, Plaintiff assumed
a prior “Lease Agreement” between his predecessors in title and the predecessors in title to
Eller Media Company (“Defendant”) allowing the placement of a billboard on the roof of the
building. In late 2000, Plaintiff claims he discovered water damage to his building allegedly
caused by the billboard. That same week, he began repeatedly telephoning Defendant.
Defendant “eventually sent someone out” but made no repairs to the property.

        On January 15, 2001, Defendant sent Plaintiff a letter stating that such letter
constituted written notice of the termination of the Lease Agreement, effective February 15,
2001. Plaintiff claims that he telephoned Defendant on January 18, 2001 regarding removing
the billboard and repairing the damage, and a January 19, 2001 letter from Defendant to
Plaintiff confirms that “[Defendant] will be making repairs to the roof from any damage
which may be caused by the sign.”

        Plaintiff claims that Defendant employed City Roofing Company to remove the
billboard and to repair the damaged building. He further states that City Roofing Company
partially completed the billboard removal, but was forced to remove its equipment in July
2001, when Defendant “did not take the necessary steps for City Roofing [Company] to
complete the job[.]”1 Plaintiff contends that in July 2001, “it became apparent, with City
Roofing’s removal of its equipment, that Eller Media would not be honoring its obligation
to completely remove the billboard and repair Mr. Bell’s building.” Thus, Plaintiff filed a
“Complaint for Breach of Contract” against Defendant on April 2, 2007, alleging both breach
of contract and promissory estoppel. Defendant then filed a motion for summary judgment,
claiming that Plaintiff’s claims were time-barred, as they had not been filed within six years
from Defendant’s alleged breach of contract on February 15, 2001.2 After Plaintiff amended
his complaint, Defendant filed a second motion for summary judgment, again asserting that
Plaintiff’s claims were barred by the statute of limitations. In a February 18, 2010 order, the

        1
         Both an April 2001 proposal from City Roofing Company and a July 2001 letter from City Roofing
Company to Plaintiff are included in the record. The letter states “We at City Roofing have removed our
equipment and materials from your job site. I have not had any response in reference to my letter dated June
20, 2001, and without direction, we cannot do any work on this project.” Plaintiff implies that the June 20,
2001 letter was directed to Defendant; however, the letter does not appear in the record.
        2
            See Tenn. Code Ann. § 28-3-105.

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trial court granted Defendant’s motion for summary judgment. Specifically, the trial court
found that the parties had not orally modified the Lease Agreement, as the agreement
specifically prohibited such, and that Plaintiff’s breach of contract cause of action, which had
accrued on February 15, 2001, was time-barred. It further found that Plaintiff’s promissory
estoppel claim was barred because Plaintiff had failed to demonstrate detrimental reliance.

        Plaintiff filed a “Motion to Reconsider Under Rule 59.04,” arguing that the trial court
erred in finding that the breach occurred on February 15, 2001, rather than “at the time
Plaintiff became aware of Defendant’s intention to breach[,]” and in finding no detrimental
reliance. The trial court denied Plaintiff’s motion to reconsider, and Plaintiff appeals.

                                        II.    I SSUES P RESENTED

        Appellant presents the following issues for review:

1.      Whether the trial court erred in finding that the Plaintiff’s breach of contract claim
        accrued on February 15, 200[1] and is therefore barred by the statute of limitations;
        and

2.      Whether the trial court erred in finding that Plaintiff did not suffer a detriment
        precluding his claim for promissory estoppel.

For the following reasons, we affirm the trial court’s grant of summary judgment to
Defendant.

                                     III.     S TANDARD OF R EVIEW 3



        3
          Plaintiff’s Notice of Appeal lists the date of the final judgment appealed as April 16, 2010–the date
of the trial court’s order denying his motion for reconsideration. However, on appeal, both parties proceed
as though the order appealed is the trial court’s February 18, 2010 order granting Defendant’s motion for
summary judgment. Even if we were to assume that an appeal of the order denying reconsideration does not
automatically include an appeal of the underlying order denying summary judgment, we nonetheless, find
that Tennessee Rule of Appellate Procedure 3(f)’s notice requirements have been met, such that the denial
of summary judgment may be considered. See Tenn. R. Civ. P. 3 (Advisory Commission Comments)
(“The purpose of the notice of appeal is simply to declare in a formal way an intention to appeal. As long
as this purpose is met, it is irrelevant that the paper filed is deficient in some other respect. Similarly, the
notice of appeal plays no part in defining the scope of appellate review. Scope of review is treated in Rule
13. This subdivision read in conjunction with Rule 13(a) permits any question of law to be brought up for
review [except as otherwise provided in Rule 3(e)] as long as any party formally declares an intention to
appeal in a timely fashion.”). Because the issue has not been raised by either party, we do not address
whether the trial court erred in denying Plaintiff’s motion for reconsideration.

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         A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The party seeking the summary
judgment has the burden of demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513
(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). “When
ascertaining whether a genuine dispute of material fact exists in a particular case, the courts
must focus on (1) whether the evidence establishing the facts is admissible, (2) whether a
factual dispute actually exists, and, if a factual dispute exists, (3) whether the factual dispute
is material to the grounds of the summary judgment.” Id. Not every factual dispute requires
the denial of a motion for summary judgment. Id. at 514. To warrant denial of a motion for
summary judgment, the factual dispute must be material, meaning “germane to the claim or
defense on which the summary judgment is predicated.” Id. (citing Eskin v. Bartee, 262
S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)).

       When the party moving for summary judgment is a defendant asserting an affirmative
defense, he or she may shift the burden of production by alleging undisputed facts that show
the existence of the affirmative defense. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 9 n.6
(Tenn. 2008). “If the moving party makes a properly supported motion, then the nonmoving
party is required to produce evidence of specific facts establishing that genuine issues of
material fact exist.” Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food Serv.,
960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The
nonmoving party may satisfy its burden of production by:

       (1) pointing to evidence establishing material factual disputes that were over-
       looked or ignored by the moving party; (2) rehabilitating the evidence attacked
       by the moving party; (3) producing additional evidence establishing the
       existence of a genuine issue for trial; or (4) submitting an affidavit explaining
       the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.

Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W .2d at 215 n. 6).


       The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Martin, 271 S.W.3d at 84. However, “we are
required to review the evidence in the light most favorable to the nonmoving party and to
draw all reasonable inferences favoring the nonmoving party.” Id. (citing Staples v. CBL
& Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). Summary judgment is appropriate “when

                                               -4-
the undisputed facts, as well as the inferences reasonably drawn from the undisputed facts,
support only one conclusion--that the moving party is entitled to a judgment as a matter of
law.” Green, 293 S.W.3d at 513 (citing Griffis v. Davidson County Metro. Gov't, 164
S.W.3d 267, 283-84 (Tenn. 2005); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614,
620 (Tenn. 2002)).


                                      IV.    D ISCUSSION

                     A. Accrual of Breach of Contract Cause of Action

        On appeal, Plaintiff argues that the trial court erred in finding his breach of contract
claim accrued on February 15, 2001, and therefore, that his April 2, 2007 complaint was
untimely. Plaintiff offers three alternative theories as to why his claim accrued “at the
earliest in May 2001.”

                                        1. Rescission

         First, Plaintiff contends that Defendant’s post-January 15, 2001 conduct effectively
rescinded its stated intention to terminate the Lease Agreement. As evidence of rescission,
Plaintiff cites a January 18 conversation between the parties in which Defendant allegedly
“made verbal communications . . . that it intended to make the repairs as required by the
Lease Agreement” as well as the January 19, 2001 letter from Defendant confirming its
intention to “mak[e] repairs to the roof[.]” Additionally, Plaintiff points to the
commencement of repair work by City Roofing, whom he claims was contracted by
Defendant. Because Defendant “continued to partially perform under the Lease Agreement
through May 2001[,]” Plaintiff argues, the six-year statute of limitations for breach of
contract did not begin to run until May 2001, and therefore, his April 2, 2007 complaint was
not time-barred.

        In both his complaint and amended complaint, Plaintiff vaguely alleged that
“Defendant Eller has breached its contract with Plaintiff Bell and as a result Plaintiff Bell has
suffered damages to his Building, loss of advertising, loss of the use of his Building, and loss
of business.” Thus, in its first set of interrogatories, Defendant asked Plaintiff to “state the
factual basis for the allegation . . . that ‘Defendant Eller has breached its contract with
Plaintiff Bell,’ and identify all documents supporting such allegation.” However Plaintiff,
again, vaguely responded that its “allegation . . . is due to Defendant’s terminating [its]
contract with Plaintiff.” Defendant then sought the production of “any and all contracts
between Plaintiff and Defendant upon which Plaintiff bases his breach of contract claim [].”
In response, Plaintiff produced only the January 15, 2001 Lease Agreement termination


                                               -5-
letter.

       In its appellate brief, Defendant argues that Plaintiff failed to raise the issue of
rescission in the trial court. However, in his reply brief, Plaintiff contends that this issue was
properly raised in his Motion for Reconsideration after summary judgment was granted.
“‘[A] Tenn. R. Civ. P. 59.04 motion should not be used to alter or amend a summary
judgment if it seeks to raise new, previously untried legal theories, [or] to present new,
previously unasserted legal arguments[.]” Lockwood v. Hughes, No. M2008-00836-COA-
R3-CV, 2009 WL 1162577, at *7 (Tenn. Ct. App. Apr. 28, 2009) (quoting Bradley v.
McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998) (affirming summary judgment and
refusing to consider “easement of presumption” defense first raised in motion to alter or
amend summary judgment, as it “came too late.”), overruled in part on other grounds by
Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000)). Because this newly-raised rescission theory
cannot be advanced to alter or amend the trial court’s grant of summary judgment, we,
likewise, find that it should not be considered by this Court in determining whether the trial
court correctly granted summary judgment.


                                       2. Severability

       Next, Plaintiff asserts that the Lease Agreement was a severable contract, and,
therefore, that even if Defendant terminated the rent provisions of such via the January 15,
2001 letter, the repair provisions remained intact. He claims that the cause of action for
breach of the repair provisions did not accrue until May 2001 when Defendant ceased
performing under that provision, and thus, that his April 2007 complaint was timely filed.

        Like rescission, which we addressed above, Defendant argues that Plaintiff failed to
raise the issue of severability in the trial court. We find no indication that the issue was
raised prior to Plaintiff’s motion to reconsider, and Plaintiff again argues that this Court may
consider the issue on appeal simply because the new theory was advanced in such motion.
For the reasons set forth above, we will not address Plaintiff’s severability argument on
appeal.


                                    3. Verbal Agreement

       As we stated above, in his complaint and amended complaint, Plaintiff vaguely
alleged that Defendant “has breached its contract with Plaintiff Bell and as a result Plaintiff
Bell has suffered damages to his Building, loss of advertising, loss of the use of his Building,
and loss of business.” Plaintiff briefly mentioned that Defendant had “agreed to remove the

                                               -6-
sign from Plaintiff Bell’s Building and make necessary repairs[,]” but no specific claim for
breach of a verbal contract was set forth.

        However, in response to Defendant’s motion for summary judgment, Plaintiff stated
as follows:

              Defendant attempts to state that Plaintiff’s cause of action is based upon
       Defendant’s termination of the lease agreement. This is not factually correct.
       As stated above, Plaintiff’s cause of action arises from Defendant’s failure to
       properly remove the sign structure and make necessary repairs after the lease
       was terminated by Defendant. Further, Defendant erroneously states that the
       only verbal agreement between Plaintiff and Defendant occurred in January
       2001. As set out in Plaintiff’s Affidavit . . . Defendant and Plaintiff had
       communications up through April 2001 during which Defendant continued to
       promise Plaintiff that it would remove the sign structure and make the required
       repairs. These communications simply modified the existing lease agreement.
       Under the lease agreement, Defendant is obligated to remove the sign structure
       and to make repairs for damage caused by the sign structure within 48 hours.
       Plaintiff and Defendant verbally modified that agreement to allow Defendant
       additional time to make those repairs. The verbal modification . . . did not
       lack consideration and was sufficiently definite to be enforceable.

(emphasis added). In granting summary judgment to Defendant, the trial court rejected
Defendant’s oral modification argument, finding that “any oral modification is specifically
prohibited by the terms of the Lease Agreement between the parties[,]” and furthermore,
“that, even if true, any oral modification is also barred by the applicable statute of
limitations.”

        On appeal, as a third alternative theory, Plaintiff contends that even if the January 15,
2001 letter was effective to terminate the Lease Agreement, that the parties subsequently
entered into a “new” verbal agreement for the repairs. Plaintiff claims that the statute of
limitations began to run on this verbal agreement in May 2001, when Defendant “stopped
responding to Mr. Bell and City Roofing.”

       Our review of the record reveals no indication that Plaintiff’s argument regarding a
“new” post-termination verbal agreement between the parties was raised in the trial court.
Instead, it appears that Plaintiff is attempting to raise this issue for the first time on appeal.
Accordingly, we will not address this issue. See Simpson v. Frontier Cmty. Credit Union,
810 S.W.2d 147, 153 (Tenn. 1991).



                                               -7-
        In his reply brief, Plaintiff renews his trial court argument regarding an oral
modification of the parties’ Lease Agreement. “A reply brief is a response to the arguments
of the appellee. It is not a vehicle for raising new issues [on appeal].” Owens v. Owens, 241
S.W.3d 478, 499 (Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(c); Denver Area Meat
Cutters & Employers Pension Plan v. Clayton, 209 S.W.3d 584, 594 (Tenn. Ct. App. 2006)).
However, to the extent that Plaintiff’s initial appellate brief could be construed as raising the
oral modification argument, we find that the Lease Agreement prohibited such. Specifically,
under the heading “Entire Agreement[,]” it provided in part that “It is expressly understood
that neither the Lessor nor the Lessee is bound by any stipulations, representations or
agreements not printed or written in this lease.” Plaintiff concedes that Defendant “would
not commit the verbal agreement i.e. contract to writing.”


                                   B. Promissory Estoppel

       Finally, Plaintiff contends that the trial court erred in finding his promissory estoppel
claim precluded because he “did not suffer a detriment[.]” “Promissory estoppel is based on
‘a promise which the promisor should reasonably expect to induce action or forbearance on
the part of the promisee or a third person and which does induce such action or forbearance
is binding if injustice can be avoided only by enforcement of the promise.’” Barnes &
Robinson Co., Inc. v. OneSource Facility Servs., Inc., 195 S.W.3d 637, 645 (Tenn. Ct. App.
2006) (quoting Calabro v. Calabro, 15 S.W.3d 873, 878 (Tenn. Ct. App. 1999)). The
doctrine, however, is not without limitations:

       The reason for the doctrine is to avoid an unjust result, and its reason defines
       its limits. No injustice results in refusal to enforce a gratuitous promise where
       the . . . promisee’s action in reliance was unreasonable or unjustified by the
       promise. The limits of promissory estoppel are: (1) the detriment suffered in
       reliance must be substantial in an economic sense; (2) the substantial loss to
       the promisee in acting in reliance must have been foreseeable by the promisor;
       (3) the promisee must have acted reasonabl[y] in justifiable reliance on the
       promise as made.

Id. (quoting Calabro, 15 S.W.3d at 879). Promissory estoppel is commonly referred to as
“detrimental reliance” because a plaintiff must demonstrate not only that a promise was
made, but also that he reasonably relied upon that promise to his detriment. Calabro, 15
S.W.3d at 879 (citing Engenius Entertainment, Inc. v. Herenton, 971 S.W.2d 12, 19-20
(Tenn. Ct. App. 1997)).




                                               -8-
       At his deposition, Plaintiff was questioned regarding the detriment he suffered in
reliance upon Defendant’s alleged promises to repair his building. Plaintiff explained his
detrimental reliance as follows:

               Well, you know, I run an auto body repair shop. It takes a lot for me to
       try to concentrate on what I was supposed to be doing in taking care of the
       business at hand, to try to do the things that I need to do in a prompt fashion.
       And with this hanging over my head, it was hard for me to function.

              ....

              Well, you know, whenever my customers have to come around to the
       side and you’ve got your front of your building looking all in shambles and
       debris falling on your customers, and it is something that should have been
       done several months ago, that is detrimental to me.

              ....

              I could think about my health. I’m concerned about my health, the
       mold and the mildew. I think that is detrimental to my health, and the dust
       particles, debris. If this had been taken care of, I wouldn’t be having this
       problem on a continued basis.

In his appellate brief, Plaintiff further cites as evidence of detrimental reliance that the
billboard “caused major damage to his property” which led to a loss of business, and that
because of the property’s poor condition, he was unable to operate an express painting booth
for which he advertised in the “Yellow Pages.” Plaintiff claims a total economic loss of
$52,498.00.

        Plaintiff seems to misconceive the detrimental reliance standard. He has listed
damages stemming from Defendant’s failure to repair his building, but he fails to explain,
or even allege, how such damages resulted from his reliance upon Defendant’s promise to
make such repairs. Because Plaintiff has not demonstrated that he “acted reasonabl[y] in
justifiable reliance on the promise as made[,]” Barnes & Robinson Co., Inc., 195 S.W.3d
at 645 (quoting Calabro, 15 S.W.3d at 879), we affirm the trial court’s finding that
Defendant’s promissory estoppel claim is barred. For the aforementioned reasons, the trial
court’s grant of summary judgment to Defendant is affirmed.




                                             -9-
                                  IV.   C ONCLUSION

      For the aforementioned reasons, we affirm the trial court’s grant of summary
judgment. Costs of this appeal are taxed to Appellant, Floyd E. Bell, and his surety, for
which execution may issue if necessary.

                                                 _________________________________
                                                 ALAN E. HIGHERS, P.J., W.S.




                                          -10-
