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Evans v. Wintrow9/30/2005
I.
Robert S. Jernigan and Steven D. Wintrow were two of the three owners of a closely held corporation called Investment Brokers of America, Inc. ("Investment Brokers"). Investment Brokers was doing business as "Money Source Loan and Pawn." Messrs. Jernigan and Wintrow desired to obtain additional working capital to expand their business, and in January 1998, they approached Minna E. H. Evans with a proposal to invest in their business. After Messrs. Jernigan and Wintrow represented that the current worth of Money Source Loan and Pawn was over $600,000, Ms. Evans agreed to invest in the venture.
On January 9, 1998, Messrs. Jernigan and Wintrow and Ms. Evans signed a written agreement. This agreement provided that Ms. Evans would be entitled to one third of the business's "total assets" in return for her contribution of property at 3225 Town Village Road in Antioch, Tennessee and her agreement to use her personal credit to assist Investment Brokers in obtaining a $150,000 line of credit. The agreement also recited that the purposes of the venture were, among other things, to (1) clear the Money Source Loan and Pawn's existing line of credit, (2) establish a new bail bonding company in Davidson County, (3) establish a new private investigation service, and (4) purchase equipment to start a voice mail service.
Ms. Evans sold her Antioch property in May 1998 for $78,706.53 and deposited $72,208.97 into a joint account with Mr. Jernigan. According to Ms. Evans, none of the business ventures identified in the January 9, 1998 agreement were established, and Messrs. Jernigan and Wintrow refused to pay over her share of Money Source Loan and Pawn's profits.
On April 30, 1999, Ms. Evans filed suit against Messrs. Jernigan and Wintrow in the Chancery Court for Davidson County seeking actual and punitive damages for breach of contract and conversion. As best as we can tell from the appellate record, Ms. Evans was able to serve only Mr. Jernigan with process. Mr. Jernigan filed an answer denying the existence of a contract and liability under any other theory.
Ms. Evans failed to pursue her claims against Mr. Jernigan or to respond to his discovery requests. Accordingly, on May 11, 2000, the trial court dismissed her complaint for failure to prosecute. Almost three months later, on August 1, 2000, Ms. Evans filed a Tenn. R. App. P. 60.02 motion seeking to set aside the order of dismissal. On August 31, 2000, the trial court granted Ms. Evans's motion and set aside the dismissal based on the excusable neglect of her lawyers.
Thereafter, Ms. Evans pursued her case against Mr. Jernigan. On the morning of September 30, 2002, when the trial was about to begin, Ms. Evans's lawyer discovered that Mr. Wintrow was present in court in response to a subpoena issued by Mr. Jernigan. With the trial court's permission, Ms. Evans's lawyer served Mr. Wintrow with process, and the trial court observed that Mr. Wintrow was "a defendant in this case." Mr. Wintrow requested a continuance because he had just been served and was unrepresented. When Ms. Evans's lawyer stated that he was prepared to proceed against Mr. Jernigan alone, Mr. Jernigan's lawyer objected to "bifurcating" the trial because the parties were "so interwoven" and because trying Ms. Evans's claims against Mr. Wintrow separately would prevent Mr. Jernigan from asserting comparative fault against Mr. Wintrow with regard to the conversion claim. The trial court eventually decided to sever Ms. Evans's claims against Mr. Jernigan from her claims against Mr. Wintrow and to proceed to trial on her claims against Mr. Jernigan.
Following a five-day trial, the jury awarded Ms. Evans $10,000
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