Howard-Hill v. Carlton Spence et al (TV1)

Filing 45

MEMORANDUM AND ORDER granting 37 Motion to Amend/Correct; granting in part and denying in part 28 Motion for Summary Judgment. Plaintiffs motion to amend her memorandum in opposition to Defendants motion for summary judgment [ Doc. 37] is GRANTED. Defendants motion for summary judgment [Doc. 28] is hereby GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent Defendants seek a finding that Plaintiff is bound by the terms of the leases, including the limita tion of value provisions, for units #62, #64, #119, #135, #139, #150, #161, #198, and #271. Defendants motion is DENIED to the extent it seeks summary judgment based on the Tennessee Self-Service Storage Facility Act, Tenn. Code Ann. §§ 66-31- 104 & -105, and to the extent it seeks summary judgment on Plaintiffs fraud and breach of contract claims arising from the alleged agreement to postpone the auction. Signed by Magistrate Judge Susan K Lee on 10/11/2017. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
DR. JEAN HOWARD-HILL,
Plaintiff,
v.
CARLTON SPENCE, Individually and a/k/a
Scott Spence, Individually, et al.,
Defendants,

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Case. No. 1:16-cv-441-SKL

MEMORANDUM AND ORDER
Before the Court is a motion for summary judgment and supporting memorandum filed
by Defendants Carlton “Scott” Spence and Mini Max Storage (collectively, “Defendants”)1 on
August 2, 2017 [Docs. 28 & 29]. Pro se Plaintiff Dr. Jean Howard-Hill (“Plaintiff”) filed a
response and supporting memorandum [Docs. 31 & 32], and Defendants filed a reply [Doc. 35].
Plaintiff then filed a motion to amend her response, with a supporting memorandum [Docs. 36 &
37]. Plaintiff also filed her own sur-reply to Defendants’ reply [Doc. 39]. Defendants do not
object to Plaintiff’s motion to amend her response [see Doc. 38], nor have they objected to the
Court’s consideration of Plaintiff’s sur-reply for the purpose of resolving this motion for
summary judgment.2 The Court will therefore grant Plaintiff’s motion to amend her response
[Doc. 37], and has considered all of Plaintiff’s pleadings in issuing this decision.

1

Although the complaint is styled as if there are multiple Defendants, it appears that Carlton
“Scott” Spence d/b/a/ Mini Max Storage, is the owner/landlord of the rental units at issue and the
sole Defendant. To avoid confusion, however, in this Order the Court will use the terminology
of “Defendants” employed by Plaintiff. Moreover, although Defendant Spence continues to refer
to himself as “Counter Plaintiff” in pleadings, he asserted no counterclaim in his answer to the
amended complaint [see Doc. 24].
Plaintiff’s reply to Defendants’ reply [Doc. 39] is a supplemental brief filed without leave of
Court in violation of Eastern District of Tennessee Local Rule 7.1(d). In the future, Plaintiff is
instructed to limit her pleadings to conform with applicable local and federal rules.
2

This matter is ripe. For the reasons stated below, Defendants’ motion for summary
judgment will be granted in part and denied in part.
I.

BACKGROUND

Defendant Mini Max Storage is a self-serve storage facility located in Chattanooga,
Tennessee, where Plaintiff stored a number of her belongings in a total of ten storage units.
Defendant Spence purchased the Mini Max facilities and took over the business in August 2013.
As set forth in greater detail below, Plaintiff failed to timely pay her rent and other charges for
the units, and on November 9, 2013, Defendants sold the contents of Plaintiff’s storage units at a
public auction. Plaintiff filed the instant suit against Defendants on November 1, 2016, alleging
Defendants breached the contract-rental agreements (often referred to herein as “leases”) for the
storage units, and that Defendants are liable for conversion and fraud. In her original complaint,
Plaintiff sought $16,803,501.03 in damages [Doc. 1, Page ID # 1]. Plaintiff later amended her
complaint and increased the amount of damages to $22,153,501.03, based on her calculation of
the value of the property she had stored at Mini Max [Doc. 19, Page ID # 482].
Through their motion for summary judgment, and in reliance on the Tennessee SelfService Storage Facility Act, Tenn. Code Ann. §§ 66-31-104 & -105, Defendants argue that they
had a lien on Plaintiff’s stored personal property and that they properly foreclosed on the lien
pursuant to the requirements of the statute when they held the public auction of Plaintiff’s
belongings; therefore, they are not liable to Plaintiff for any damages. Defendants further argue
that, even if they were liable, the leases for nine of the ten units Plaintiff occupied limited the
amount of Defendants’ liability for a wrongful sale of property to $1,000 per unit.
Defendants also argue that Plaintiff’s fraud claim—which is based on an alleged
agreement by an employee of Mini Max, Mr. Todd Kyle, to postpone the public auction in
exchange for a partial payment of $2,500 toward Plaintiff’s past due bill—fails because Plaintiff
2

cannot prove that Mr. Kyle made the agreement or that her reliance on any alleged
misrepresentation that the auction would be postponed was reasonable. Finally, Defendants
argue that Plaintiff’s breach of contract claim based on this same alleged agreement fails
because, even if Mr. Kyle did make the agreement and had the authority to do so, there would be
no consideration for the agreement because Plaintiff was already legally obligated to pay her past
due bill.
Defendants’ motion is supported by a memorandum [Doc. 29], the storage unit rental
contracts [Doc. 28-13], Plaintiff’s deposition testimony [Doc. 28-24], recorded notes concerning
Plaintiff’s account at Mini Max [Doc. 28-3], the deposition testimony of Plaintiff’s cousin
Mecshell Wright Ramseur [Doc. 28-4], an affidavit from Defendant Spence [Doc. 28-5], notices
of the auction that were mailed to Plaintiff [Doc. 28-6], the newspaper advertisement for the
auction [Doc. 28-7], and the deposition testimony of Mr. Nassar Salameh Jaser, a business
associate and friend of Plaintiff’s [Doc. 28-8].5
In response, Plaintiff contends that she was not bound by most of the leases because she
did not actually sign them, and the person who did sign them, Plaintiff’s cousin Mecshell Wright
Ramseur, did not have authority to bind Plaintiff.

She relies on the same evidence as

Defendants, as well as her own memorandum [Doc. 37-1], emails between Plaintiff and
employees of Mini Max concerning the manner in which Plaintiff’s payments were applied to
her account balance [Doc. 31-18], transcripts of voicemails left on Plaintiff’s phone by
Defendant Spence and other Mini Max employees [Doc. 31-20], text messages between Plaintiff
3

Copies of the leases are also attached as individual exhibits to Plaintiff’s original response to
Defendants’ motion [Docs. 31-2 through 31-11].

4

Plaintiff attaches her complete deposition transcript to her original response to Defendants’
motion for summary judgment [see Docs. 31-12].

5

Plaintiff also attaches the complete deposition transcript of Ms. Ramseur and Mr. Jaser to her
original response to Defendants’ motion for summary judgment [see Docs. 31-13 & 31-14].
3

and Mr. Jaser [Doc. 31-21], Defendants’ answers to interrogatories [Doc. 31-22], Defendant
Mini Max’s insurance policy [Doc. 31-23], and Plaintiff’s inventory of the items stored in the
units [Doc. 31-24]. In her sur-reply and other filings, Plaintiff also cites to Mini Max’s phone
records [Doc. 36-1].
II.

STANDARD OF REVIEW

Summary judgment is mandatory where “there is no genuine dispute as to any material
fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
“material” fact is one that matters—i.e., a fact that, if found to be true, might “affect the
outcome” of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
applicable substantive law provides the frame of reference to determine which facts are material.
Id. A “genuine” dispute exists with respect to a material fact when the evidence would enable a
reasonable jury to find for the non-moving party. Id.; Jones v. Sandusky Cnty., Ohio, 541 F.
App’x 653, 659 (6th Cir. 2013); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th
Cir. 2001). In determining whether a dispute is “genuine,” the court cannot weigh the evidence
or determine the truth of any matter in dispute. Anderson, 477 U.S. at 249. Instead, the court
must view the facts and all inferences that can be drawn from those facts in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Nat’l Satellite Sports, 253 F.3d at 907.
The moving party bears the initial burden of demonstrating no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jones, 541 F. App’x at 659. To
refute such a showing, the non-moving party must present some significant, probative evidence
indicating the necessity of a trial for resolving a material, factual dispute. Celotex, 477 U.S. at
323. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The court’s role is limited to determining
4

whether the case contains sufficient evidence from which a jury could reasonably find for the
non-moving party. Anderson, 477 U.S. at 248, 249; Nat’l Satellite Sports, 253 F.3d at 907.
III.

FACTS

Plaintiff leased her first Mini Max storage unit, unit #163, in 2007 [lease, Doc. 28-1, Page
ID # 628-30]. Plaintiff’s friend and former business partner, Ms. Derilla Frazier, signed the lease
on Plaintiff’s behalf on November 21, 2007 [Id.]. Plaintiff does not dispute that Ms. Frazier was
acting as Plaintiff’s agent and that Plaintiff is bound by the terms of this lease [Plaintiff Dep.,
Doc. 28-2 at Page ID 664, lines 8-13]. Out of the ten leases at issue in this case, the lease for
unit #163 is the only one that does not contain a limitation on the value of property that can be
stored in the unit [Doc. 28-1, Page ID # 628].
Plaintiff acquired the other nine storage units in late 2012. On November 20, 2012,
shortly before moving from Chattanooga to Washington, D.C., Plaintiff signed a lease for Unit
#271 [lease, Doc. 28-1 at Page ID # 636-40]. This lease contains a limitation of value paragraph,
which provides:
Customer agrees that in no event shall the total value of all property stored be
deemed to exceed $1,000 unless Landlord has given permission in writing for
Customer to store property exceeding that value. Customer agrees that the
maximum liability of Landlord to Customer for any claim or suit by Customer,
including but not limited to any suit which alleges wrongful or improper
foreclosure or sale of the contents of a storage unit is the total value referenced
above. Nothing in this section shall be deemed to create any liability on the part of
Landlord to Customer for any loss or damage to Customer[’]s property, regardless
of cause.
[Doc. 28-1 at Page ID # 639].
Plaintiff asserts that on November 27, 2017, she “personally acquired” an additional four
units: #62, #64, #119, and #135 [see Doc. 37-1 at Page ID # 1265]. Within a short span of time
thereafter, Plaintiff acquired four more units: #139 on November 28, 2012, #150 on December 3,
2012, #198 on December 5, 2012, and #161 on December 6, 2012 [id. at Page ID # 1265-66; see
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also leases, Doc. 28-1]. Plaintiff, however, did not actually sign the leases for any of these eight
units when she acquired each. Instead, on December 12, 2012, when Plaintiff’s cousin, Ms.
Ramseur, appeared at Mini Max to place some of Plaintiff’s belongings into the storage units
[see Ramseur Dep., Doc. 31-13 at Page ID #1110], Ms. Ramseur signed her own name and
Plaintiff’s name to the leases for seven of the eight units, those units being #62, #64, #119, #139,
#150, #198, and #161 [see leases, Doc. 28-1].

The lease for unit #135 was never signed by

anyone.
Plaintiff contends that Ms. Ramseur never had any authority to sign the leases on
Plaintiff’s behalf [Plaintiff Dep., Doc. 28-2 at Page ID # 665, lines 9-19], and Ms. Ramseur
testified in her deposition that she believed she was signing a document simply to gain access to
the units [Ramseur Dep., Doc. 28-4 at Page ID # 685, lines 18-25]. Defendants dispute this, and
point to a note recorded by a former Mini Max employee which states, “sent cousin to sign
leases” [Doc. 28-3 at Page ID # 682]. It is undisputed, however, that Plaintiff did receive copies
of three of the eight leases via email, although the copies that Plaintiff received had not yet been
signed by her cousin [Plaintiff Dep., Doc. 28-2 at Page ID # 666, lines 6-22].
It is worth noting that all eight leases (including the three that were emailed to Plaintiff)
were identical to the lease Plaintiff signed for unit #271 on November 20, 2012, and included the
limitation of value paragraph [see leases, Doc. 28-1]. It is also worth noting that, after receiving
the emailed copies of the leases, Plaintiff continued to make payments to Mini Max, albeit
somewhat sporadically [see Mini Max account notes, Doc. 28-3 at Page ID # 682; emails
between Plaintiff and Mini Max, Doc. 31-18 at Page ID # 1140].
By August 2013, when Defendant Spence purchased Mini Max, Plaintiff was in default
on all ten of her units for failing to pay rent [Spence Aff., Doc. 28-5 at Page ID # 689, ¶ 4].

6

When Plaintiff did make a payment, the payment was divided across each of the ten units, rather
than applied to satisfy the balance on one particular unit [emails, Doc. 31-18 at Page ID # 1156].
On October 1, 2013, an employee of Mini Max mailed ten separate “Auction
Notifications” to Plaintiff’s former address in Chattanooga [Doc. 28-6].

The Notifications

informed Plaintiff that her right to access the storage units had been terminated and that Mini
Max would auction the contents of the units “on or after” November 2, 2013, at 9:00 a.m., unless
Plaintiff paid the balances owed prior to that date [id.]. Plaintiff contends that she did not
receive the notices; regardless, at some point she discovered Defendants intended to auction the
contents of her storage units. Therefore, on October 31, 2013, Plaintiff’s friend Elaine Powe
contacted Mini Max and inquired about making a partial payment to avoid the auction [Powe
Aff., Doc. 31-15 at Page ID #1133].
According to her affidavit, Ms. Powe spoke with Mr. Todd Kyle, an employee of Mini
Max, who, after checking with his boss (presumably Defendant Spence), agreed to accept a
$2,500 payment from Plaintiff to “stop the sale of the 10 units on November 2, 2013” and to
“give her time to pay whatever balance in a few days.” [id. at Page ID # 1133-34]. Ms. Powe
then made the $2,500 payment on November 1 [id. at Page ID # 1133]. Plaintiff claims that Mr.
Kyle agreed to postpone the auction until November 22 as a result of this payment [see Doc. 19
at Page ID # 499], although Ms. Powe does not specifically attest to the November 22 date.
Defendant Spence denies having made such an agreement, and claims that “[t]he only way I was
going to refrain from auctioning Plaintiff’s property was if I received payment in full of her
arrearages, as stated in the auction notices.” [Spence Aff., Doc. 28-5 at Page ID # 690, ¶ 8-11].
For reasons not clear from the record, the auction was nevertheless delayed until
November 9, 2013. On November 3, six days prior to the auction, Defendant Spence published a
notice in the Chattanooga Times Free Press which provides, in its entirety:
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PUBLIC AUCTION
Mini Max Storage
1415 Crawford St.
Chattanooga, Tn 37421
423-894-9191
List for Auction to be held at 10:00 AM on November 9, 2013
Units- 62, 64, 119, 135, 139, 150, 161, 163, 198, 271- Howard Hill
Unit- 38 Vickie Bell
Unit- 224 Aaron Financial Services
Unit- 272 Ben Suggs
[Doc. 28-7 at Page ID # 715]. On November 8, according to his affidavit, Defendant Spence
called Plaintiff “in an attempt to work something out so that she could keep at least some of her
property,” but “no agreement was ever reached.” [Spence Aff., Doc. 28-5 at Page ID # 690, ¶
12].
Plaintiff also spoke to her friend, Mr. Nassar Salameh Jaser, on November 8, and told
him about the impending auction. Mr. Jaser owned an empty building in Chattanooga where
Plaintiff was considering moving her belongings for storage [Jaser Dep., Doc. 31-14 at Page ID #
1123]. Plaintiff asked Mr. Jaser to contact Defendant Spence and essentially settle her tab with
Mini Max; Plaintiff would then pay Mr. Jaser back, move her belongings, and take over the
mortgage payment on Mr. Jaser’s building [id. at Page ID # 1123-24]. Mr. Jaser testified,
however, that when he called Mini Max on the morning of the auction to pay the balance, the
employee on duty refused to speak with him regarding Plaintiff’s account [id. at Page ID #
1124]. Mr. Jaser did not attempt to bid at the auction, or otherwise appear in person to pay the
bill [id. at Page ID # 1130].
Defendant Spence therefore proceeded with the auction of Plaintiff’s units on November
9, 2013. According to Defendant Spence’s affidavit, the total amount yielded from the auction
that day, which included a number of units not leased by Plaintiff, was $2,400 [Spence Aff., Doc.
28-5 at Page ID # 690, ¶ 15].

8

Plaintiff filed suit on November 1, 2016 [Doc. 1], and filed an amended complaint on
May 5, 2017 [Doc. 19]. Through her amended complaint, Plaintiff asserts claims for breach of
contract, fraud, and conversion [id.]. Specifically, she claims Defendants breached the rental
contracts and committed conversion when they refused to allow her to make payments on her
individual units and eventually auctioned off her belongings [id. at Page ID # 498-501]. She
further claims that the alleged agreement to delay the auction until November 22 in exchange for
her partial payment of $2,500 “constituted a new agreement and/or altered the terms of any
original or written contracts between the Plaintiff and Defendant,” which Defendants breached
when they held the auction [id. at Page ID # 499-500]. Plaintiff also asserts that Defendants’
refusal to postpone the auction until November 22 in light of the $2500 payment constitutes
fraud, and that Defendants cannot assert any counterclaims against her for any unpaid rent or
other fees under the doctrine of unclean hands [id. at Page ID # 500, 502-03]. She seeks
“monetary and punitive damages in the amount of $22,153,501.03.” [id. at Page ID # 505].
In response to Plaintiff’s original complaint, Defendants filed an answer and
counterclaim for breach of contract, seeking “unpaid rent, late fees, attorney fees, costs and
interest in an amount not to exceed $20,000.00.” [Doc. 5 at Page ID # 72]. As previously noted,
Defendants’ response to the amended complaint does not assert a counterclaim [see Docs. 24].6

When Plaintiff sought leave to file the amended complaint [Doc. 12], Defendants filed a
response (1) stating that they had no opposition to the motion, and (2) attempting to adopt the
original answer to the complaint as the response to the amended complaint [see Doc. 14]. The
Court granted the motion to amend on April 17, 2017 [Doc. 16]. In doing so, the Court
specifically noted that Defendants could not adopt verbatim their original answer to the
complaint as their response to the amended complaint and that they were required to file a timely
answer to the amended complaint after it was filed [Doc. 16]. See also In re Refrigerant
Compressors Antitrust Litig., 731 F.3d 586, 589 (6th Cir. 2013) (holding that an “amended
complaint supersedes an earlier complaint for all purposes.”) (citing Pac. Bell Tel. Co. v.
Linkline Commc’ns, Inc., 555 U.S. 438, 456 n.4 (2009)).
6

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IV.

ANALYSIS
A.

The Tennessee Self-Service Storage Facility Act

Defendants’ primary argument for summary judgment is that they have no liability to
Plaintiff arising from the sale of her stored items, because they complied with the applicable
provisions of the Tennessee Self-Service Storage Facility Act, which gave them a lien on
Plaintiff’s stored property and empowered them to enforce the lien in the event of Plaintiff’s
default on the leases. See Tenn. Code Ann. §§ 66-31-104 & -105. It is unnecessary to go
through each of the requirements of the lien enforcement statute (Tenn. Code Ann. § 66-31-105),
because the Court readily concludes Defendants failed to comply with subsection (2)(F), and the
Act requires strict compliance with subsection (2)(F). See Tenn. Code Ann. § 66-31-105(2)(N)
(“An owner shall not be entitled to any remedies provided by this chapter, including but not
limited to, enforcement of a lien against an occupant, if: . . . (ii) The sale of the personal property
in the leased space is not in conformity with subdivision (2)(F).”).
Subsection (2)(F) requires that any auction of the contents of a storage unit be advertised
in “a newspaper of general circulation which serves the area where the self storage facility is
located,” and that:
[t]he advertisement shall include:
(i) A statement that the contents of the occupant’s leased space shall be sold to
satisfy the owner’s lien;
(ii) The address of the self-service storage facility and the number or other
description, if any, of the space where the personal property is located and the
name of the occupant; and
(iii) The time, place, and manner of the sale . . . .
Tenn. Code Ann. § 66-31-105(2)(F).

Defendants’ advertisement [Doc. 28-7] included the

address of the facility and “the time, place, and manner of the sale,” but it did not include a
“statement that the contents of the occupant’s leased space shall be sold to satisfy the owner’s
10

lien.” [id.]

As a result, Defendants are not entitled to summary judgment under the lien

enforcement provisions of the Tennessee Self-Service Storage Facility Act.7
B. Limitation of Value Paragraph
Defendants next argue that the leases for nine of the ten units limit Plaintiff’s recovery to
$1,000 per unit. Nine of the ten leases at issue do indeed include the following “Limitation of
Value” paragraph:
Customer agrees that in no event shall the total value of all property stored be
deemed to exceed $1,000 unless Landlord has given permission in writing for
Customer to store property exceeding that value. Customer agrees that the
maximum liability of Landlord to Customer for any claim or suit by Customer,
including but not limited to any suit which alleges wrongful or improper
foreclosure or sale of the contents of a storage unit is the total value referenced
above.
[See, e.g., lease for unit #139, Doc. 28-1 at Page ID # 6168].
Plaintiff seems to acknowledge that she is bound by this limitation of value for unit #271,
which she personally signed [Doc. 37-1 at Page ID # 1265 (“Plaintiff does not contest the

7

The Court acknowledges that the Self-Service Storage Facility Act provides that “[n]othing in
this chapter shall be construed as in any manner impairing or affecting the right of the parties to
create additional rights, duties, and obligations in and by virtue of the rental agreement.” Tenn.
Code Ann. § 66-31-106(a). However, the leases at issue in this case do not reference any sort of
contractual lien beyond what is provided for in the statute. The leases provide:
Pursuant to the Tennessee Self-Service Storage Facility Act, Landlord has a lien
upon all property in the Storage Space. If Customer fails to pay the monthly Rent
when due, Landlord may deny Customer access to the Premises and the Storage
Space. Landlord, without notice, not less than five (5) days after the Rent is due,
may enter and remove property from the Storage Space to other suitable storage
space pending its sale or other disposition. Customer[’]s property may be sold or
otherwise dispose[d] of if no payment has been received for a continuous fifteen
day period when due to satisfy the lien.
[See, e.g., lease for unit #139, Doc. 28-1 at Page ID # 615].

8

The Self-Service Storage Facility Act expressly permits a limitation of value provision in a
storage unit lease. See Tenn. Code Ann. § 66-31-104(b) (“If the rental agreement contains a
limit on the value of property stored in the occupant’s storage space, the limit shall be deemed to
be the maximum value of the property stored in that space.”).
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acquiring of Unit 271 on November 20, 2012, as evidenced by the signed contract presented as
PLAINTIFF’S EXHIBIT 2.”), at Page ID # 1281 (“Plaintiff contends that there are only two
contracts that were legally binding”). See also 84 Lumber v. Smith, 356 S.W.3d 380, 383 (Tenn.
2011) (“It is a bedrock principle of contract law that an individual who signs a contract is
presumed to have read the contract and is bound by its contents. . . . To hold otherwise would
make contracts not ‘worth the paper on which they are written.” (internal quotation marks and
citations omitted))]. And, for their part, Defendants seem to acknowledge (as they must) that the
lease for unit #163 does not contain any such limitation of value provision.
Hence, the dispute concerning the contractual limitation of value only concerns the seven
leases signed by Plaintiff’s cousin, Ms. Ramseur (for units #62, #64, #119, #139, #150, #161,
and #198), and the one unsigned lease (for unit #135). As explained below, the Court concludes
that Plaintiff is bound by the terms of these leases, including the limitation of value provisions,
regardless of the fact that she did not personally sign them. Therefore, the Court will grant the
aspect of Defendants’ motion for summary judgment seeking a finding that Plaintiff is bound by
the terms of the leases, including the limitation of value provisions, for units #62, #64, #119,
#135, #139, #150, #161, #198, and #271.
Plaintiff acknowledges that she was required by the leases to make payments in order to
continue storing her belongings at Mini Max [Plaintiff Dep., Doc. 28-2 at Page ID # 665]. She
nevertheless takes the position that she is not bound by the remaining terms of the leases as
written, claiming that there was no meeting of the minds [see Doc. 37-1 at Page ID # 1286-88].
As Defendants point out, the law regarding whether the terms of a contract or lease are
enforceable is well established in Tennessee:
It is well established in Tennessee that, in order to be enforceable, a
contract must represent mutual assent to its terms, be supported by sufficient
consideration, be free from fraud and undue influence, be sufficiently definite,
and must not be contrary to public policy. Johnson v. Central Nat’l Ins. Co., 210
12

Tenn. 24, 356 S.W.2d 277, 281 (1961). Such a contract can be expressed or
implied, written or oral. Id. A written contract does not have to signed to be
binding on the parties. See Remco Equip. Sales, Inc. v. Manz, 952 S.W.2d 437,
438 (Tenn. App. 1997). Similarly, when an agreement is reduced to writing but is
signed by only one of the parties, it is binding on the non-signing party if that
party has manifested consent to its terms. Southern Motor Car Co. v. Talliaferro,
14 Tenn. App. 276, 1931 WL 1595, at *3 (Tenn. Ct. App. March 5, 1932) (cert.
denied). What is critical is mutual assent to be bound. In determining mutuality
of assent, courts use an objective standard based on the manifestations of the
parties. 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of
Contracts § 30:6 (4th ed. 1999). Assent can be established by the course of
dealing of the parties. Remco Equip. Sales, 952 S.W.2d at 439. In determining
whether a contract exists, the court also can consider relevant evidence such as
whether the parties performed under its terms. 11 Williston & Lord, § 30.3.
When a party who has not signed a contract has nonetheless manifested consent
by performing under it and making payments conforming to its terms, that party is
estopped from denying that the parties had a meeting of the minds sufficient to
bind them to the contract. R.J. Betterton Management Serv., Inc. v. Whittemore,
769 S.W.2d 214, 216 (Tenn. Ct. App. 1989).
T.R. Mills Contractors, Inc. v. WRH Enters., LLC, 93 S.W.3d 861, 865-66 (Tenn. Ct. App.
2002).
It is undisputed that Plaintiff personally signed the written lease for unit #271 on
November 20, 2012, and that this lease contained the limitation of value paragraph. Over the
course of the next few weeks, she acquired eight more units without personally signing the leases
for those units; however, she received email copies of at least three of the leases for those
additional units, all of which were identical to the lease for unit #271 [see Plaintiff’s Dep., Doc.
31-12 at Page ID # 1089; leases, Doc. 28-1]. She acknowledges that she received the emailed
leases, although she denies having actually reviewed the leases [Plaintiff Dep., Doc. 31-12 at
Page ID # 1089]. Plaintiff proceeded to store her belongings in the storage units, and to make
payments under the leases for the next nine months.
The Court agrees with Defendants that these circumstances show mutuality of assent to
the terms of the leases as written, including the limitation of value paragraph. See, e.g., T.R.
Mills Contractors, 93 S.W.3d at 867 (mutual assent found where the defendant “knew” the
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plaintiff “had submitted the written contract . . . and did nothing to suggest that he did not assent
to its terms,” and where the defendant “had executed the . . . form contract on other projects, and
so had reason to know its terms and conditions”). Plaintiff claims that there was no mutual
assent to the leases because Defendants refused to apply her payments to individual units;
instead, they “batched” her payments, meaning they evenly divided her payments across all of
her units, such that even when she made large payments, she never satisfied her obligations with
regard to any single unit [see Doc. 37-1 at Page ID # 1287-88]. Plaintiff points out that she
began protesting the “batching” of her payments as early as February 2013, or less than two
months after she acquired nine of her ten units [id. at Page ID # 1287]. The Court is not
persuaded by this argument.
Plaintiff does not point to any part of the lease which prohibits the so-called “batching”
of her payments;9 the evidence she presents shows that Mini Max employees consistently told
her via email that they could not apply her payments to individual units due to the payment
processing “system” used at Mini Max, although it appears they made one exception in late
March 2013 [see emails, Doc. 31-18 at Page ID # 1155-56]. In any event, Plaintiff fails to
explain how the parties’ failure to agree on this point indicates a lack of mutual assent to the
terms of the leases, especially in light of the fact that Plaintiff continued to store her belongings
at Mini Max for months after being repeatedly told by Mini Max employees that her payments
would be “batched” rather than applied to individual units.

9

The only relevant provision on this issue that the Court could identify provides that,
“[p]ayments made by Customer will always be applied first to the oldest charges on the
Customer[’]s account,” which at first blush seems to support batching [see, e.g., lease for unit #
139, Doc. 28-1 at Page ID # 614]. Neither party addressed the relevance of this particular
provision, and Defendants did not ask for summary judgment on Plaintiff’s breach of
contract/conversion claims concerning the “batching” on the basis that the leases did not prohibit
batching.
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Plaintiff also briefly argues that she had no reason to believe that the nine leases executed
in 2012 were any different from the lease executed in 2007, which did not contain a limitation of
value paragraph [Doc. 37-1 at Page ID # 1269 (“But primarily, the reason why [Plaintiff] did not
thoroughly read or feel the need to read the contract, was because Plaintiff believed the contracts
were the same as the contract for the first unit rented. Not having any reason to believe
differently, since she was not advised that the contracts were different, she signed the first and
only signed contract for Unit #271.”)]. This could be liberally construed as an argument that,
due to the parties’ prior course of conduct, there was no mutual assent to the limitation of value
paragraph in the 2012 leases. The Court is cognizant of the standards for summary judgment,
but nevertheless concludes that the above analysis should not change simply because the 2007
lease for unit #163 [Doc. 28-1 at Page ID # 628] does not contain a limitation of value paragraph.
Because Plaintiff personally signed the lease for unit #271, received copies of the leases for at
least three other units, and performed under those leases for almost a year before the dispute
arose, the Court finds Plaintiff was on notice that Mini Max’s policies had changed since 2007.
The parties argue at length about whether Ms. Ramseur had apparent authority to bind
Plaintiff to the leases; however, the Court concludes that whether Ms. Ramseur had apparent or
actual authority to sign the leases on Plaintiff’s behalf is not determinative of whether Plaintiff is
bound by the limitation of value paragraph in nine of the ten leases.10 As discussed above, the
Court concludes that Plaintiff assented to the terms of the contracts by signing the lease to unit
#271, receiving the identical emailed leases from Mini Max, and continuing to store her property
in the units and make payments on the leases for over nine months. That several leases were
signed by Ms. Ramseur only weakens Plaintiff’s arguments to the contrary.

10

Whether Ms. Ramseur knew she was signing a lease is disputed [see Ramseur Dep., Doc. 28-4
at Page ID # 685, lines 18-25].
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For these reasons, the Court will grant Defendants’ motion for summary judgment to the
extent Defendants seek a finding that Plaintiff is bound by the terms of the leases, including the
limitation of value provisions, for units #62, #64, #119, #135, #139, #150, #161, #198, and #271.
As a result, the maximum liability of Defendants for any claim or suit by Plaintiff, including but
not limited to claims of wrongful or improper foreclosure or sale of the contents of these units is
limited to $1,000 per unit on units #62, #64, #119, #135, #139, #150, #161, #198, and #271. For
clarity’s sake, the Court notes that unit #163 contains no such limitation of value provision.
C.

Plaintiff’s Claims Arising from Defendants’ Alleged Agreement to
Postpone the Auction

As discussed above, Plaintiff’s amended complaint includes claims for breach of contract
and fraud arising from the alleged agreement that Todd Kyle made (on behalf of Mini Max) with
Ms. Powe (on behalf of Plaintiff) to postpone the auction date to November 22 in exchange for a
partial payment of $2,500 [Doc. 19 at Page ID # 499-500, 502-03]. Defendants argue these
particular claims should be dismissed because Mr. Kyle will not testify, and Plaintiff cannot
produce any other admissible evidence that Defendants agreed to postpone the auction date [Doc.
29 at Page ID # 729-30]. Specifically regarding Plaintiff’s fraud claim, Defendants further argue
that Plaintiff “admitted in her Complaint that she was aware the auction was going forward
before her things were sold, and as such, she did not reasonably rely on any alleged
misrepresentation from Mr. Kyle.” [Doc. 29 at Page ID # 729 (citing Plaintiff’s amended
complaint, Doc. 19 at ¶ 58, Page ID # 496)]. Defendants’ arguments fail.
Regarding the evidentiary issue, Plaintiff was granted leave to amend her witness list to
include Ms. Powe, who now may be able to testify about whether she reached an agreement with
Mr. Kyle to postpone the auction in exchange for the $2,500 payment made on November 1 [see
Doc. 40 (order); see also Powe Aff. Doc. 31-15]. Moreover, according to Plaintiff and Ms.
Powe, any agreement with Mr. Kyle was made after he consulted with Defendant Spence. At
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least at this juncture, it is not immediately apparent why Mr. Kyle’s alleged statements to Ms.
Powe are not admissible. See Fed. R. of Evid. 801(d)(2). And, while Plaintiff’s amended
complaint states that she was aware on November 8, 2013, that the auction was going forward,
there is a question of fact concerning whether Plaintiff reasonably relied on Mr. Kyle’s alleged
misrepresentation that the auction would be delayed until November 22 when she allegedly made
the agreement and payment, and then only later learned that the auction would proceed.
Defendants further argue in their reply that Plaintiff’s breach of contract claim arising
from this alleged agreement fails due to a lack of consideration [Doc. 35 at Page ID # 1246-48].
Specifically, Defendants argue that the $2,500 does not constitute consideration because Plaintiff
undisputedly already owed Defendants over $4,000 for past due rent under the leases [Id.].
While the Court typically will not address a new argument raised in a reply, Plaintiff was
allowed to file a sur-reply in this case. In any event, the Court does not find Defendants’
arguments persuasive.
True, an amendment to an existing contract requires consideration. See E&A Northeast
Ltd. P’ship v. Music City Record Distribs., Inc., No. M2005-01207-COA-R3-CV, 2007 WL
858779, at *5 (Tenn. Ct. App. Mar. 21, 2007) (citing Dunlop Tire & Rubber Corp. v. Service
Merchandise, 667 S.W.2d 754, 548 (Tenn. Ct. App. 1983) (“Another long-standing principal of
contract law . . . is that an alteration or amendment to an existing contract must be supported by
consideration.”). Moreover, “[i]t is well-settled that consideration exists when the promisee does
something that it is under no legal obligation to do or refrains from doing something which it has
a legal right to do.” Brown Oil Co. v. Johnson, 689 S.W.2d 149, 151 (Tenn. 1985); see also
GuestHouse Intern., LLC v. Shoney’s N. America Corp., 330 S.W.3d 166, 188 (Tenn. Ct. App.
2010) (internal citations omitted). “For there to be consideration in a contract between parties to
the contract it is not necessary that something concrete and intangible move from one to the
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other.

Any benefit to one and detriment to the other may be a sufficient consideration.”

GuestHouse Inter., 330 S.W. at 189 (internal citation and quotation marks omitted).

“In

determining whether an agreement is supported by consideration, we view the agreement in its
entirety, ‘not as separate, unrelated sets of promises.’” Id. at 188-89 (quoting Anesthesia Med.
Grp., P.C. v. Chandler, No. M2005-00034-COA-R3-CV, 2007 WL 412323, at *6 (Tenn. Ct.
App. Feb. 6, 2007)). However, the Court concludes that Defendants’ argument concerning a
lack of consideration fails at the summary judgment stage of these proceedings.
Defendants make one final argument addressing Plaintiff’s contention that the alleged
arrangement with Todd Kyle was a valid contract modification or contract implied in fact. They
point out that Plaintiff acknowledges in her amended complaint that she was aware (as of
November 8) the auction was going to proceed on November 9, and she had to pay the balance
of $1,526 in order to stop the auction [Doc. 35 at Page ID # 1248]. They then argue that this
awareness “equally constitutes a valid contract modification,” which required Plaintiff “to pay
her full arrearages by the auction date, and Mr. Spence would not auction her property.” [Doc. 35
at Page ID # 1248]. However, Defendants did not address the lease provision that requires a
signed writing to modify the lease terms and they did not sufficiently develop this convoluted
argument for the Court to understand and rule upon it as a matter of law.
For these reasons, the Court concludes Defendants are not entitled to summary judgment
on Plaintiff’s breach of contract and fraud claims arising from the alleged agreement between
Ms. Powe and Mr. Kyle to postpone the auction date in exchange for a partial payment of
$2,500.
V.

CONCLUSION

For the reasons stated above, Plaintiff’s motion to amend her memorandum in opposition
to Defendants’ motion for summary judgment [Doc. 37] is GRANTED. Defendants’ motion for
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summary judgment [Doc. 28] is hereby GRANTED IN PART and DENIED IN PART. The
motion is GRANTED to the extent Defendants seek a finding that Plaintiff is bound by the terms
of the leases, including the limitation of value provisions, for units #62, #64, #119, #135, #139,
#150, #161, #198, and #271. As a result, the maximum liability of Defendants for any claim or
suit by Plaintiff, including but not limited to claims of wrongful or improper foreclosure or sale
of the contents of these units is limited to $1,000 per unit on units #62, #64, #119, #135, #139,
#150, #161, #198, and #271. For clarity’s sake, the Court notes that unit #163 contains no such
limitation of value provision. Defendants’ motion is DENIED to the extent it seeks summary
judgment based on the Tennessee Self-Service Storage Facility Act, Tenn. Code Ann. §§ 66-31104 & -105, and to the extent it seeks summary judgment on Plaintiff’s fraud and breach of
contract claims arising from the alleged agreement to postpone the auction.
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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