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Laws-info.com » Cases » Tennessee » Court of Appeals » 1997 » First American vs. Fitzgerald
First American vs. Fitzgerald
State: Tennessee
Court: Court of Appeals
Docket No: 03A01-9704-CH-00131
Case Date: 10/30/1997
Plaintiff: First American
Defendant: Fitzgerald
Preview:IN THE COURT OF APPEALS OF TENNESSEE EASTERN SECTION AT KNOXVILLE
FILED
October 30, 1997 Cecil Crowson, Jr.
App ellate C ou rt Clerk
FIRST AMERICAN NATIONAL BANK,  )  KNOX CHANCERY  
)  
Plaintiff/Appellee  )  NO. 03A01-9704-CH-00131  
)  
v.  )  
)  HON. FREDERICK D. McDONALD  
JAMES FITZGERALD and  )  CHANCELLOR  
ERIC M. GEORGESON,  )  
)  
Defendants/Appellants  )  
)  AFFIRMED  

Neal S. Melnick and Lawrence E. Ault, Knoxville, for Appellants. Cheryl E. Light, Knoxville, for Appellee.
O P I N I O N
INMAN, Senior Judge
This is a suit on a promissory note executed on January 18, 1994 by the defendant James Fitzgerald to the plaintiff.  The payment of this note was guaranteed by the defendant Eric M. Georgeson, who executed a separate document. Each document appears to be facially regular and routine.
The defendants filed a joint answer asserting a failure of consideration in that the proceeds of the note were never received by either of them.  They admitted the execution and delivery of the promissory note, but denied the execution and delivery of the guaranty, while later admitting its execution and delivery.
The Chancellor sustained the complaint in all respects and entered a judgment against both defendants in accordance with the provisions of the promissory note. The defendants appeal and present for review the following issues:
I. Whether the trial court erred in finding that authorized advances were made on the subject promissory note.
II. Whether the trial court erred by admitting parol evidence to vary the terms of the promissory note and obligations of the parties where the appellee failed to establish any authorized advances to the appellants under the note.
III. Whether the trial court erred in failing to apply the statute of frauds in finding the appellants liable for money advances to a third party, Blakley Management Corporation, when no written promise to do so exists.
IV. Whether the trial court erred in not barring recovery on the basis that the appellee was equitably estopped by its conduct and negligence.
Our review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. R. APP. P., RULE 13(d).
I
In 1989, James Fitzgerald and Eric Georgeson were business partners.  The partnership owned several properties in Chattanooga and Knoxville  including property commonly known as the Blakley Hotel.  On December 3, 1989, they entered into a Management Agreement with Blakley Management Corporation to manage and oversee the operation of the Blakley Hotel including all of its food and beverage operations.
The Management Agreement provided that Joseph Parisi (hereinafter
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