COUNT II
BREACH OF CONTRACT; FAILURE OF CONSIDERATION; BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING; RESCISSION
39. Each allegation of each preceding paragraph of this Complaint is incorporated herein by reference.
40. Hyneman provided RPM to Smith as part of the consideration for the purchase of real property he made from Smith.
41. As part of transferring RPM, Hyneman was to provide RPM and “RPM has to be able to be insured for full medical and with collick insurance at $750,000.00 to cover the balance of the sale price of $2,300,000.00 (Sales Agreement, Addendum #1).
42. RPM was not, on May 27, 2005, nor at any time upon to his death on July 20, 2005, capable of being insured for $750,000.00.
43. The failure to provide insurance for RPM has led to a failure of consideration under the Sales Agreement and the Deed made to Hyneman.
44. Since a failure of consideration has occurred, Smith is entitled to rescind the Sales Agreement.
45. Alternatively, all of the duties pertaining to the insurance policy upon RPM survived closing under the Sales Agreement (paragraph 17.B) and the failure of RPM to be insurable at the amount of $750,000.00 constitutes a breach of contract by Hyneman. Smith has been damaged by this breach.
46. In addition, Hyneman’s conduct constitutes a breach of the duty of good faith and fair dealing implied in every contract within the State of Tennessee. Hyneman intended to, and did, take actions directly calculated to deprived Smith of the benefit of her bargain under the Sales Agreement.
47. Hyneman’s actions were taken deliberately, maliciously, and fraudulently, and were such oppressive conduct as to warrant the imposition of punitive damages for the actions.
COUNT III
BREACH OF CONTRACT OF INSURANCE
48. Each allegation of each preceding paragraph of this Complaint is incorporated herein by reference.
49. In all respects in regard to the procurement of a policy of insurance upon RPM, Connaway acted as the agent of Great American and had the authority, either apparent or actual, to bind Great American. See Tenn. Code Ann. 56-6-115(b) (“An insurance producer who solicits or negotiates an application for insurance shall be regarded, in any controversy arising from the application for insurance or any policy issued in connection therewith between the insured or insured’s beneficiary and the insurer, as the agent of the insurer and not the insured or insured’s beneficiary. This provision shall not affect the apparent authority of an agent”)
50. Alternatively, Connaway and Great American committed, by the binder dated May 26, 2005, to provide a policy of insurance upon RPM in the amount of $750,000.00.
51. Smith complied with all conditions upon the face of the binder issued May 26, 2005, including the payment (twice) of the initial premium for the policy of insurance.
52. On July 20, 2005, therefore, a contract of insurance existed upon the life of RPM in the amount of $750,000.00. Alternatively, the contract of insurance existed in at least the amount of $500,000.00.
53. Connaway and/or Great American have wrongfully refused to pay the benefits due upon the death of RPM.
54. The refusal to pay constitutes a breach of the contract of insurance, which has damaged Smith.
COUNT IV
PROMISSORY ESTOPPEL
55. Each allegation of each preceding paragraph of this Complaint is incorporated herein by reference.
56. Connaway represented and promised to Smith that a policy of insurance had been or would be issued upon RPM in the amount of $750,000.00.
57. Smith relied upon the representations and promises of Connaway in consummating the transaction set forth in the Sales Agreement.
58. Smith’s reliance upon the representations and promises of Connaway has been to her detriment and she has been damaged on account of her detrimental reliance.
59. Smith is entitled to recover from Connaway the damage(s) suffered by her on account of her detrimental reliance, which amount to at least $750,000.00.
Count V
60. Each allegation of each preceding paragraph of this Complaint is incorporated herein by reference.
61. Connaway and Camille Akin are in the business of providing equine insurance. In the course of this business, Connaway and Camille Akin routinely provide information to others upon which those individuals rely in making decisions and determining what course of actions to pursue.
62. In Smith’s transaction with Hyneman under the Sales Agreement, Connaway and Camille Akin provided information to Smith in the courser of their business as providers and/or brokers of equine insurance.
63. The information provided by Connaway and/or Camille Akin was incorrect and/or false.
64. Connaway and Camille Akin were negligent in providing incorrect information to Smith.
65. Due to the circumstances then existing, including the statements made by Camille Akin and Laura Connaway, and the documentation provided by Connaway to Smith, Smith justifiably relied upon the incorrect information provided. Smith’s reliance upon this information has caused her to be injured and/or damaged. The exact amount of those damages have not been fully ascertained as of the date of the filing of this complaint, but are at least $750,000.00. Smith is entitled to recover her damages from Connaway.
COUNT VI
VIOLATION OF THE TENNESSEE CONSUMER PROTECTION ACT
66. Each allegation of each preceding paragraph of this Complaint is incorporated herein by reference.
67. In her acquisition of RPM from Hyneman, Smith is a consumer as defined by Tenn. Code Ann. 47-18-103.
68. Smith acquired RPM for her personal purposes, thus RPM was a good as defined by Tenn. Code Ann. 47-18-103.
69. The acts of Hyneman, as described in this complaint, were unfair and deceptive trade practices under the Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann 47-18-104.
70. Smith has suffered an ascertainable loss due to the acts of Hyneman in violation of the TCPA and has a right to bring this action under Tenn. Code Ann. 47-18-109.
71. Smith is entitled to compensatory damages, treble damages, and attorney fees under Tenn. Code Ann. 47-18-101 et seq.
COUNT VII
PROFESSIONAL NEGLIGENCE; VETERINARY MALPRACTICE
72. Each allegation of each preceding paragraph of this Complaint is incorporated herein by reference.
73. Mark Akin, DVM, is a licensed veterinarian in the State of Tennessee. Mark Akin, DVM, specialized in the care and treatment of horses.
74. On July 9, 2005, Mark Akin, DVM executed a certificate stating that he had examined RPM and found the horse to be healthy and also that he had “taken care of RPM since Fall 1996.”
75. It was untrue that Mark Akin examined RPM on, or any time near, July 9, 2005.
76. A state of the art examination by Mark Akin would have been of help in discovering any underlying conditions that could have been treatable and prolonged the life of RPM.
77. In his actions related to RPM, Mark Akin deviated from the professional standard of care required of veterinarians in the State of Tennessee and in Bedford County.
78. Smith has been damaged and injured as a direct result of the deviation from the required professional standard of care by Mark Akin, DVM.
WHEREFORE PREMISES CONSIDERED, PLAINTIFF PRAYS:
A. That process be issued and served upon the Defendants and that the Defendants be required to answer as required by the law;
B. That Plaintiff have judgment against the Defendants for compensatory damages in an amount not to exceed One Million Dollars;
C. For judgment for punitive damages against the Defendants, allowed by law, in an amount deemed sufficient by the trier of fact in this matter;
D. In the alternative, for rescission of the Sales Agreement;
E. For a jury of twelve persons to try all issues when joined in this case;
F. That a lien lis pendens be issued by this Court for the property described in the Sales Agreement, under Tenn. Code Ann. 20-3-101.
G. For such other, further and general relief of a legal or equitable nature to which Jaclyn Smith-Tillman may be entitled, including that the costs of this cause be taxed to the Defendants.
Respectfully submitted,
JACLYN SMITH-TILLMAN
By her Attorneys
Charles R. Terry #000941