David Dell'Aquila, et al v. Larry Head, et al

Filing

OPINION filed : AFFIRMED, decision not for publication. Damon J. Keith and Jeffrey S. Sutton, Circuit Judges and The Honorable Timothy S. Black, U.S. District Judge, Southern District of Ohio, sitting by designation (Authoring).--[Edited 11/04/2013 by RLJ]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0946n.06
No. 13-5064
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DAVID DELL’AQUILA, et al.,
Plaintiffs-Appellants,
vs.
LARRY HEAD, et al.,
Defendants-Appellees.
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FILED
Nov 04, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

Before: KEITH and SUTTON, Circuit Judges; and BLACK, District Judge*
TIMOTHY S. BLACK, District Judge. Plaintiffs-Appellants David Dell’Aquila and
Marita Dell’Aquila (the “Dell’Aquilas”) appeal from the district court’s denial of their motion for
new trial or to alter or amend judgment following a trial by jury. For the reasons set forth herein,
we affirm.
I.
The Dell’Aquilas entered into a contract to purchase approximately 1,250 acres of real
property (“the property”) in Tennessee from appellees Larry Head and James White, Jr. (hereinafter
collectively referred to as “appellees”). A portion of the property was located in Jackson County,
Tennessee, with most of the property located in Clay County, Tennessee. Under the contract,
appellees promised to convey the property by warranty deed, free and clear of all encumbrances.

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The Honorable Timothy S. Black, District Judge, United States District Court, Southern
District of Ohio, sitting by designation.

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Ron Taylor was hired to perform a survey of the property (“Taylor Survey”). While
conducting the survey, Taylor became aware of a quitclaim deed held by Robert and Cindy Byers
(the “Byers”) that touched the property in both Clay County and Jackson County (“disputed
property”). Upon learning of the title defect in the property, appellees filed suit against the Byers
in the Chancery Court for Clay County seeking to quiet title to the disputed property. The
Dell’Aquilas and appellees amended their contract to address the title defect in the disputed property
and defined a cure of the defect to be a judgment in the chancery court determining that all of the
property at issue in the contract, including the disputed property, belonged exclusively to appellees.
The Byers moved for summary judgment in the chancery court arguing that appellees were
statutorily barred under Tenn. Code. Ann. § 28-2-110 from pursuing the quiet title action because
they failed to pay taxes on the disputed property for twenty years. In support of their motion, the
Byers presented evidence that seventy-four acres previously taxed to appellees’ predecessors in
interest were, in 1984, assessed and paid by the Byers and their predecessors in interest. The Byers
did not, however, present tax maps showing that the seventy-four acres were part of the disputed
property.
Following a summary judgment hearing in the chancery court, defendants compared the tax
maps to the Taylor survey and determined that the Byers, rather than appellees, had paid taxes on
the disputed property. Because appellees did not pay taxes on the disputed property, they concluded
they were statutorily barred from bringing or succeeding in the quiet title action in chancery court
by virtue of Tenn. Code Ann. § 28-2-110. As a result, appellees entered into a settlement agreement
with the Byers that resulted in the Byers taking title to the Jackson County portion of the disputed

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property. Subsequently, the chancellor issued a decision denying the Byers’ motion for summary
judgment.
The Dell’Aquilas then brought suit against appellees in the district court alleging breach of
contract and constructive fraud. Following trial, a jury concluded that appellees breached the
contract with the Dell’Aquilas, but that the breach was excused because appellees’ performance
under the contract was impossible. The jury also found in favor of appellees on the constructive
fraud claim.
Following the verdict, the Dell’Aquilas filed a motion for new trial, or to alter or amend
judgment. In that motion, the Dell’Aquilas challenged the reasonableness of the jury’s finding that
appellees’ nonperformance was excused because performance was impossible. The district court
denied the Dell’Aquilas’ motion, and the Dell’Aquilas now appeal the district court’s denial of their
motion for new trial to this court.
II.
Requests for a new trial following trial by jury are governed by FED. R. CIV. P. 59(a)(1)(A),
which states that district courts may grant a new trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal court[.]” Under this provision, district courts
may grant a new trial where “a jury has reached a ‘seriously erroneous result’ as evidenced by . . .
the verdict being against the weight of the evidence[.]” Holmes v. City of Massillon, 78 F.3d 1041,
1045-46 (6th Cir. 1996); see also Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 994-95
(6th Cir. 2012).
“A district court’s decision to deny a new-trial motion is reviewed for an abuse of discretion,
which means we will reverse only if we have ‘a definite and firm conviction that the trial court

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committed a clear error of judgment.’” Armisted, 675 F.3d at 995 (citing Mich. First Credit Union
v. Cumis Ins. Soc’y, Inc., 641 F.3d 240, 245 (6th Cir. 2011)). In reviewing a district court’s decision
on a motion for new trial, we must “uphold the verdict if it was one which the jury reasonably could
have reached[.]” Id. (citing Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007)).
III.
The Dell’Aquilas argue that the determination of whether appellees’ performance was
impossible should have been determined based solely on proof available at the time the appellees
settled with the Byers. According to the Dell’Aquilas, when viewing only the proof available to the
parties at the time appellees settled with the Byers, a reasonable jury could only conclude that
appellees could have prevailed in the quiet title action and any impossibility was created solely by
appellees settling with the Byers and failing to remedy the cloud on title by litigating the quiet title
action through trial.
A.
With regard to the time upon which impossibility is determined, Tennessee law1 provides
that impossibility of performance excuses a breach of contract only if “‘the promised performance
was at the making of the contract, or thereafter became, impracticable owing to some extreme or
unreasonable difficulty, expense, injury, or loss involved, rather than that it is scientifically or
actually impossible.’” N. Am. Capital Corp. v. McCants, 510 S.W.2d 901, 905 (Tenn. 1974)
(emphasis added) (quoting Hinchman v. City Water Co., 167 S.W.2d 986 (Tenn. 1943)). Consistent
with the foregoing, the district court reviewed the verdict to determine whether the jury could

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We apply the substantive law of Tennessee, i.e., the forum state, because federal
jurisdiction in this case is based on diversity of the parties. Armisted, 675 F.3d at 995.
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reasonably conclude that the contract was impossible to perform at the time the parties entered the
contract. We find no error in this analysis.
B.
With regard to whether the weight of the evidence supported the jury’s conclusion that
appellees’ performance under the contract was impossible, this issue turned on whether appellees
and their predecessors in interest failed to pay taxes on the disputed property for a period of twenty
years.
Pursuant to Tenn. Code Ann. § 28-2-109, persons paying taxes on property are “presumed
prima facie to be the legal owner of such land.” See Uhlhorn v. Keltner, 637 S.W.2d 844, 848
(Tenn. 1982) (stating that, based upon Tenn. Code. Ann. § 28-2-109, payment of taxes on a property
by one party for over twenty years, “alone, creates a presumption of ownership”).
Pursuant to Tenn. Code Ann. § 28-1-110(a):
Any person having any claim to real estate or land of any kind, or to any legal or
equitable interest therein, the same having been subject to assessment for state and
county taxes, who and those through whom such person claims have failed to have
the same assessed and to pay any state and county taxes thereon for a period of more
than twenty (20) years, shall be forever barred from bringing any action in law or in
equity to recover the same, or to recover any rents or profits therefrom in any of the
courts of this state.
Simply put, Tenn. Code. Ann. § 28-2-110 “acts as an absolute bar to any suit ‘where one claiming
an interest in real property or his predecessor in title has failed to have assessed and to pay taxes on
the claimed property for at least twenty continuous years.’” Burress v. Woodward, 665 S.W.2d 707,
709 (Tenn. 1984); see also Alexander v. Patrick, 656 S.W.2d 376, 377 (Tenn Ct. App. 1983)).

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In the district court, the parties stipulated that the Byers and their predecessors in interest
paid taxes on Parcel 13 from 1990-2010, and that appellees and their predecessors in interest did not
pay any taxes on Parcel 13 from 1990-2010. Evidence presented at trial in the district court also
demonstrated that Parcel 13 fell within the disputed property. Based on the foregoing, a jury could
reasonably conclude that performance was impossible because appellees were barred from pursuing
the quiet title action as a result of their failure, and the failure of their predecessors in interest, to pay
taxes on the disputed property for a period of twenty-years. The district court did not abuse its
discretion in so finding.
C.
With regard to whether appellees created the impossibility, Tennessee courts conclude that
“[a] party is not relieved of liability for his nonperformance of a contract based upon the defense of
impossibility of performance where the impossibility is caused by the party’s own conduct or where
the impossibility is caused by developments which the party could have ‘prevented or avoided or
remedied by appropriate corrective measures.’” Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713, 72425 (Tenn. Ct. App. 1998) (citations omitted).
Here, the Dell’Aquilas suggest that appellees created the impossibility when they failed to
remedy the cloud on the title by litigating the quiet title action through trial in the chancery court.
The Dell’Aquilas point to the decision of the chancellor in denying the Byers’ motion for summary
judgment and suggest that the chancellor’s finding of disputed issues of material fact conclusively
demonstrates that appellees could have prevailed at trial in the chancery court.
The chancellor’s denial of the Byers’s motion for summary judgment was premised on the
conclusion that the Byers failed to meet their burden of affirmatively showing that the land for

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which they paid taxes was “among the disputed lands.” See Hannan v. Alltel Publ’g Co., 270
S.W.3d 1, 9 (Tenn. 2008). As pointed out by appellees and the district court, the chancellor did not
have the benefit of considering the tax maps when deciding the Byers’s motion for summary
judgment, and tax maps are generally admissible to determine “who paid taxes on a particular piece
of real property.” Jack v. Dillehay, 194 S.W.3d 441, 450 (Tenn. App. 2005) (citing Whitworth v.
Hutchison, 731 S.W.2d 915, 917 (Tenn. Ct. App. 1986)).
Appellees reviewed the tax maps after the chancellor heard arguments on summary judgment
but before the chancellor issued the decision denying the motion. Appellees’ review of those maps,
when read in conjunction with the Taylor survey revealed that the Byers and their predecessors in
interest, and not the appellees and their predecessors in interest, paid the taxes on the disputed
property. While appellees only came to this realization after the chancellor heard argument on
summary judgment, the fact that neither appellees nor their predecessors in interest paid taxes on
the disputed property for a period of twenty-years existed at the time the appellees contracted with
the Dell’Aquilas and was always a bar to appellees proceeding in the quite title action.
Appellees’ settling the quiet title case prior to trial did not create the impossibility because,
as reasonably determined by the jury, appellees were barred from proceeding in that action by virtue
of Tenn. Code Ann. § 28-2-110(a), and that bar existed at the time the parties entered into the
contract. Accordingly, we find no error in the district court’s conclusion that the jury could, based
on the facts, reasonably conclude that performance was impossible at the creation of the contract.
D.
Finally, the Dell’Aquilas argue that the district court erred in finding that, insofar as their
motion for new trial could be substantively construed as a motion for judgment as a matter of law,

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such motion should be barred because they failed to move for judgment before the case was sent to
the jury.
Judgment as a matter of law is appropriate where “the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that issue” after “a party
has been fully heard on an issue during a jury trial[.]” FED. R. CIV. P. 50(a)(1). When faced with
Rule 50 motions in diversity cases, federal courts must apply “‘the standard of review used by the
courts of the state whose substantive law governs the action.’” Tompkins v. Crown Corr, Inc., 726
F.3d 830, 844 (6th Cir. 2013) (citing Kusens v. Pascal Co., 448 F.3d 349, 360 (6th Cir. 2006); Betts
v. Costco Wholesale Corp., 558 F.3d 461, 466 (6th Cir. 2009)); Innotext, Inc. v. Petra’Lex USA Inc.,
694 F.3d 581, 588 (6th Cir. 2012).
Similar to the standard of review employed under the Federal Rules, Tennessee courts, in
reviewing motions for directed verdict, must “‘take the strongest legitimate view of the evidence in
favor of the opponent of the motion, allow all reasonable inferences in his or her favor, discard all
countervailing evidence, and deny the motion when there is any doubt as to the conclusions to be
drawn from the evidence.’” Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495, 509
(Tenn. 2012) (citation omitted); see also Stinson v. Crye-Leike, Inc., 198 F. App’x 512, 514-15 (6th
Cir. 2006); White v. Burlington N. & Santa Fe. Railway Co., 364 F.3d 789, 794 (6th Cir. 2004). A
court of appeals reviews a denial of motions for judgment as a matter of law de novo. Mike’s Train
House, Inc. v. Lionel, LLC, 472 F.3d 398, 405 (6th Cir. 2006).
Here, a de novo review of the evidence viewed most favorably to appellees results in a
conclusion that reasonable jurors could find in favor of appellees on the issue of impossibility, and
that the district court did not err in so finding. Accordingly, we need not address the district court’s

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alternative conclusion that the Dell’Aquilas motion, insofar as it could be construed as a motion for
judgment as a matter of law, was untimely.
IV.
For the foregoing reasons, we affirm.

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