Taylor v. UnumProvident Corp., No. 1:03-cv-1009, 2008 WL 4415601, at *3 (E.D. Tenn. Sept. 24, 2008). See also Kandel v. Ctr. for Urological Treatment & Research, No. M2000-02128-COA-R3-CV, 2002 WL 598567, at *8 (Tenn. Ct. App. Apr. 17, 2002) ("To establish a claim for promissory fraud, a claimant must show that, at the time the promise was made, the person making the promise had no intention to perform."). And a number of Tennessee courts have engaged in extensive analyses of a plaintiff's burden to demonstrate fraudulent intent, which hardly leaves room for Plaintiff's reading of the tort, which would only require he show recklessness.
Taylor v. UnumProvident Corp., No. 1:03-cv-1009, 2008 WL 4415601, at *3 (E.D. Tenn. Sept. 24, 2008). See also Kandel v. Ctr. for Urological Treatment & Research, No. M2000-02128-COA-R3-CV, 2002 WL 598567, at *8 (Tenn. Ct. App. Apr. 17, 2002) ("To establish a claim for promissory fraud, a claimant must show that, at the time the promise was made, the person making the promise had no intention to perform."). And a number of Tennessee courts have engaged in extensive analyses of a plaintiff's burden to demonstrate fraudulent intent, which hardly leaves room for Plaintiff's reading of the tort, which would only require he show recklessness.
; Kandel v. Ctr. for Urological Treatment & Research, No. M2000–02128–COA–R3–CV, 2002 WL 598567, at *8 (Tenn.Ct.App. Apr. 17, 2002) (“To establish a claim for promissory fraud, a claimant must show that, at the time the promise was made, the person making the promise had no intention to perform.”).
In a series of unpublished decisions, the Tennessee Court of Appeals has divided over whether a plaintiff may maintain a cause of action for promissory fraud in the absence of direct proof of the promisor's bad intent. See Kandel v. Ctr. for Urological Treatment & Research, P.C., No. M2000–02128–COA–R3–CV, 2002 WL 598567, at *8 (Tenn.Ct.App. Apr. 17, 2002) (“The Tennessee Supreme Court is unwilling to apply the doctrine ‘except in those cases where there is direct proof of a misrepresentation of actual present intention.’ ”)
But Defendant's duty to negotiate the contract in good faith would exist only if it had an "express contractual agreement to do so." Barnes Robinson Co. v. Onesource Facility Servs., 195 S.W.3d 637, 643 (Tenn.Ct.App. 2006) (citing Kandel v. Center for Urological Treatment and Research, P.C., 2002 Tenn. App. LEXIS 260, 2002 WL 598567 (Tenn.Ct.App. April 17, 2002)). Such a duty may not be inferred absent an express contractual agreement.
] In a factually similar case, a physician entered an employment contract that provided if the physician-employee worked for the employer group for one year, then the parties would negotiate for the employee to have stock-purchasing opportunities. Kandel v. Center for Urological Treatment and Research, P.C., 2002 WL 598567, *1 (Tenn.Ct.App. 2002). After the employee worked for one year, the parties negotiated, as agreed, but the negotiations came to an impasse.
In Gurley v. King, this court distinguished between two types of preliminary agreements—one "where parties agree to later formalize a contract about which there has been complete agreement on all of the essential issues" and the other "where parties have committed themselves to some of the major terms, but other essential elements remain to be negotiated." Gurley, 183 S.W.3d 30, 40 (Tenn. Ct. App. 2005) (citing Kandel v. Ctr. for Urological Treatment & Research, P.C., No. M2000-02128-COA-R3-CV, 2002 WL 598567 (Tenn. Ct. App. Apr. 17, 2002)). Although Gurley involved the first type of agreement, this court quoted a New York case stating that a preliminary agreement of the second type could give rise to "'the obligation to negotiate the open issues in good faith in an attempt to reach the alternate objective within the agreed framework.'"
Farmers Merchants Bank, 664 S.W.2d at 82 (emphasis original). See Kandel Center for Urological Treatment and Research, No. M2000-02128-COA-R3-CV, 2002 WL 598567, at *8 (Tenn.Ct.App. April 17, 2002) (No Tenn. R. App. P. 11 application filed). This court in American Cable Corp. v. ACI Management Inc., No. M1997-00280-COA-R3-CV, 2000 WL 1291265, (Tenn.Ct.App. Sept. 14, 2000) (No Tenn. R. App. P. 11 application filed), discussed at length the difficulty of proving intent and held that the best gauge to determine intent, short of an admission, is to examine actions.
Tennessee courts, however, have not recognized a duty to negotiate in good faith absent an express contractual agreement to do so. See Kandel v. Center for Urological Treatment and Research, P.C., No. M2000-02128-COA-R3-CV, 2002 WL 598567 (Tenn.Ct.App. April 17, 2002). In that matter, Dr. Kandel argued that a contract to "negotiate in good faith" is enforceable in Tennessee, and that the facts of his case supported a finding the defendants breached their duty under his employment agreement to negotiate in good faith.
Davidson, 47 S.W.3d at 454. The third case from Tennessee is the opinion of this Court in Kandel v. Center for Urological Treatment and Research, P.C., No. M2000-02128-COA-R3-CV, 2002 WL 598567 (Tenn.Ct.App. April 17, 2002). This case contains an enlightening discussion of developments in the law following the landmark decision of a New York Federal District Court in Teachers Insurance and Annuity Association of America v. Tribune Co., 670 F.Supp. 491 (S.D.N.Y. 1987).