# FILED
April 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION AT NASHVILLE JAMES B. OLIVER, ) ) Plaintiff/Appellee, ) Davidson Chancery No. 94-2669-I ) VS. ) Appeal No . 01A01-9705-CH- 00197 ) HARRIET C. UPTON, ) ) Defendant/Apellant. )
APPEAL FROM

THE CHANCE RY COURT O F DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. K ILCREASE, JR., CHANCE LLOR

RICHARD DANCE DANCE, DANCE & LA NE Nashville, Tennessee Attorney for Appellant

DONALD J. SER KIN Nashville, Tennessee Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PA RT AND REMA

NDED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HEWITT P. TOMLIN, JR. , Sr. J.2

Defendant Harriet C. Upton, no w known as Harriet Cathey, appeals the trial court’s final judgment awarding Plaintiff/Appellee James B. Oliver the su m of $15, 225.66, cont inuing in effect the lis pendensfiled against th e subject prope rty pending C athey’ s satisfaction of the judgment, denying Cathey’s request for attorney’s fees, and assessi ng forty percent (40%) of the costs against Cathey. We affirm the judgment in p art (with modifications), reverse in part, and remand for furth er proceedings.
I. Factual and Procedural History

On August 14, 1993, the parties entered into a lease agreement whereby Cathey leased to Oliver the premises located at 202 Overcrest Court in Davidson County for his
use as a residence. At the time the partie s executed th e lease, they also discu ssed Oliver’s future purchase of the property.Cathe y was experi encing marital difficulties at the time (which ultimatel y resulted in her div

orce), and she was i nterested in selling th e property because she feared that she could not afford the mortgage payments.

As executed, t he lease provided for a term o f one (1) year, commencing September

1, 1993, and ending August 31, 1994. The lease required Oliver to make monthly rental paymen ts to Ca they in the amount of $727. This amount appr oximated Cathey’s monthly mortgage pay ments on the property. The lease also required Ol iver to surrender

the premises t o Cathey at the termination of the lease, and it contained a provision for attorney’s fees in the event

that Cathey was req uired to retain an attorney to enforce her rights under the l ease. The leas e fo rm was provided by Oliver, who had obtained the form from an attorney.

In contemplation of Oliver’s future purchase of thep roperty, the lease also contained the following prov isions, which we re handwritten on the leas e form by Oliver at the time the lease was ex ecuted:

Parties agree that rental payments will be applied

towardsthe future purchase of

said property. Parti es also agree that any3 necessary costs for repairs, improvements, etc. paid by lessee shall also be applied tow ards rent/purchase.
Several months into the term of the lease, Ol iver discovered that Cathey had failed to make several mortgag e payments and that the property was in dan ger of foreclosure. With Cathey’s knowledge and consent, therefore, Oliv er begin sending his r

ental payments directlyto the mortgage company r at her than to Cathey. This arran gement continued throughout the remainder of the le ase term.

In July1994, the parties conducted neg otiations relative to Oliver’s purchase of the property. Negotiations on behalf of Oliv er were conducted by

Jose Gonzalez, w

hom Oliver had authori zed to a

ct on hi s behalf.On July21, 1994, Gonzalez faxed a memorandum to Cathey in which he proposed, on behalf of Oliver, to pay her a total of $3,727.73at closing. This amount represented Cathey’s equity in the propert

y, minus the rental pay

ments Oliver had made to Cathey and to the mortg age company. Cathey made nu merous changes to the figures proposed on the memorandum and faxed the document back to Gonz alez. In her fax, Cathey indicated tha t she wanted a total payment of $12,460.65 at closing instead of $3,727.73. A

note written by Cathey on the memorandum explained that she dis agreed wi th the manner in which Oli ver’s proposal credi

ted the rental payments w hich h e ha d made t o the mortgage company. Specifically, Cathey objected that, under Oliver’s proposal, these payments were appl ied to reduce both the mortgage balance and

Cathey’s equity in the prope rty. Negotiations subsequently failed due to the parties’ disagreement over this issue.

When Cathey’s counterproposa l was not accepted, she se nt another fax to Gonzalez

in which she stated that she had decided not to sell the house to

Oliver. The fax als o re minded Gonzalez that Oli ver’s lease would

expire August 31, 1994, a nd she requested that Oliver

move from the premises by th at date.

Instead of vacating the premises, on September 1, 1994, Oliver filed this action for specific performance whereby he soug ht an order requiring Cathey tosell the s ubject4

property to him. As grounds therefor,Oliver alleged tha t the parties had entered into a sale contract which was

evidenced by the parti es’ August 14, 1993, lease ag reement and the July21, 1994, memorandum exchanged between the pa rt ies. Al ternatively, Oliver’s complaint sought damages for br each of contract and fraudulent misrep resentation.

In her answer, Cathey rai sed the defen ses of the statute of frauds and lack of consideration. Cathey also filed a counterclaim for possession of the property. W hile the lawsuit was pending, Cathey notified Oliver that she was raising his monthly rental payments from $727 to $1,000, effective September 1, 1995.Oliver continued to r eside in the house and co ntinued t o make payments directly to the mortgage company throughout this litig ation.

After condu c ting a bench trial, and after entertaining the parties’ various post-tri al motions, the trial court entered i ts final judgment which (1) d enied Oliver’s clai m forspecific performance; (2) awardedOliver a judgment i n the amount of $15,225.66; (3) ordered that the lis pendens

which Oliver had

filed against the property remain in effect until Cathey satisfied the judgment; (4) re fused to grant Cath ey a writ of p ossessio n for the property; (5) denied Cathey’s claim for attorney’s fees; a nd (6) assessed 40% of the costs against Cathey.

On appeal, Cathey raises the following issu es, whic h we have summarized for purpose s of clari ty and brevi ty: (1) Whether the trial court erred i n c alculatin g the amount of the judgment entered in favor of Oliver; (2) Whether the trial court erred in refusing to order the r elease of the lis pendens filed by Ol iver agains t the prop erty; (3) Whether the trial court erred i n failing to grant Cathey anorder of possession for the s ubject pr operty; (4) Whether t he trial court erred i n denying Cathey’s claim for attorney’s fees under the parties’ lease ag reement; and5

(5) W hetherthe trial court erred in taxing Cathey with 40% of the costs in this
case.
II. Oliver’s Claim for Specific Performance

Because of its po tential e ffect o n the oth er issues presente d, we first a ddress an issue raised by Oliver in his answ erbrief, wherein he argued that the trial court erred in failing to order specific performance of the parties’ agreement for the sal e of th e subject property. We begin our analysis with the premise that specific perf ormance is an equitable remedy which is not a vailable as a matter of right, but is discretionary with the trial court depending on the facts of each case. Shuptrine v. Quinn , 597 S.W .2d 728, 730 (Tenn. 1979) ; GRW Enters., Inc. v. Davis , 797 S.W.2d 606, 614 (Tenn. App. 1990). In cases involving contracts for the

sale of realty, specific performance is not available unless the contract is clear, complete, and definite in all its essential terms. Shuptrine , 597 S.W.2d at 730; Parsons v. Hall , 199 S.W.2d 99, 100 (Tenn. 1947); GRW Enters. , 797 S.W.2d at 614.

To be enforceable, contracts for the sale of realty must satisfy the statute of frauds, which requires that the parti es’ contract be evidenced by a m emorandum or some other writingand be signed by the party to be charged therewith. Brandel v. Moore Mo rtgage & Inv. Co. , 774 S.W.2d 600, 604 (Tenn. App. 1989) (citing T.C.A. § 29-2-101(4) (1980)). The memorandum “must contain the essential terms of the contract expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or w ith which it is conn ected, without resorti ng to parol evidence.” Brandel , 774 S.W.2d at 604 (quoting Lambert v. Home Fed. Sav. & Loan Ass’n , 481 S.W.2d 770, 773 (Tenn. 1972)). Thus, to satisfy the statute of frauds , a party may rely on multiple documents evidencing the s ame transaction, pr ovided that the writings on their face relate to one another. Brandel , 774 S.W.2d at 604-05.6

I n the present case, Oliv er contended that the statute of frauds w as satisfied b y (1) the August 14, 1993, lease agreement between the parties, w hich provided that rental payments would “be applied tow ards the future purchas e of said property,” (2) and the memorandum exchanged between the partie s in July 1994 which outl ined the proposed termsof such a purchase. The trial c ourt, however, rul ed that these writings di d not evidence an enforceable contrac t for the sale of the property. The court explained: The Lease agreement providin g for the Option to purchase the property did not co ntain th e sale pric e for the property, and the parties could not agree on the s ale price, as indicated by [Cathey’s] offer and [Oliver’s] counter offer with respect to the sale price. . . . The sale price w as an essential element of the option to purchase the property.The Court finds the option to purchase agreement so vague and indefinite that it is unenforceable.

On appeal, Oliver insi sts that the lease and memorandum constitut e an agreement which is sufficiently definite i n its essent ial terms to be enforceable. Spec ifically, Oliver contends that the memorandum reveals that the parties intended fo r the sale price, or consideration pai d, to be (1) Oliver’s pay ment of Cathey’s equity in the property, plus (2) Oliver’s assumpt ion of th e existing m ortgage on the prope rty.

We agr ee with the trial court’s analysis of Oliver’s claim for specific performance and, thus, concl ude that this issue lack

s me rit. Contrary to Oliv er’s contention, the memorandum and notes exchanged by the parties demonstrate their c ontinued disagreement

over basicterms of the sale contract. Most importantly, thes e writings rev

eal that the parties could not agree o n a sale price due to their fundamental disagreement over how Oliver’s past rent

al payments would be

applied toward the purchase of the pr operty. In his July 21, 1994, offer, Oli ver applied both the rental payments made directly to Cathey and the rental payments made to the mor t gage company against Cathey’s equity in the property. As a result of these cal culation s, Oliver of fered Ca they a closing payment of only $3,72 7.73. In rejecting Oliv er’s offer, Cathey pointed out that the payments to th e mortgage company already had been app lied against the mortgag e balance. Cathey objected that, i f the se paymen ts also were applied t o reduce her equity i n the prop erty, Oliver would b e rec eiving credit for the payments twice. Cathey subsequently made a1 Oliver contends that

the amount of the awar d should be uphel d because it i nclude s damages for fraud. The trial

court’s f inal j udgment, however, makes no fi nding of fr aud or misrepresenta tion agai nst Cathe y. 7 counteroffer

in which she indicate d that she would acc ept a closing payment of $12,460.65. This counteroffer was nev er accepted.

After reviewing the do

cuments presented in this case , we agree with the trial court’s ruling that the parties’ agreement w as not sufficiently clear, complete, and definite in all it s essential terms so as to warrant specific enforcement. See Bird v. Henderson , 1 98 6 WL 8160, at *1 (Tenn. App. July 24, 1986 ) ( concluding that evidenc e did not preponderate against trial court’s finding that no enforceable contract for sale of re al estate existed where evidence disclosed series of negoti ations between pa rt ies which eventually were termina ted). Accordingly, we conclude that the trial court did not abuse its discretio n i n refusing to grant specific performance of the agreement.

III. Amount of Oliver’s J udgment
Although we affirm the trial court’ s refusal to grant spec ific perf ormance of the alleged sale contract, we conclude that the trial cour t erred in calculating

the amount of the judgmentawarded to Oliver. The trial court properlyruled that, since the sale contract was not enforceable, Oliver

was entitled to a judgment for all payments he made in excess of his rental obligation under the lease agreement. In calculating the amount of the judgment, however , the tri al cour t failed to cred it Cath ey with all of the renta l payme nts fo r whic h Oliver was responsible. Specifically, the trial court credited Cathey with the rental payments owed by Oliver during the initial one-

year term of the lease, but the court failed to charge Oliver any rent for the period from September 1, 1994, to August 31, 1995 , and it charged Oliver an i ncorrect amount for the period from Se ptember 1, 1995, to April 30, 1996. 1

At trial, the evidence showed that,during the period from September 1993 through April 1996, Oliver made payments totaling $26,885.82,including an $800 payment to the2 Cathey also chall enges this charg e, contendi ng that, u nder the part ies’ l ease agreement, Cathey had no ob ligatio n to p rovid e clea ning o r othe r ma inten anc e. Th is argument ignores t he additi on to the l ease of the handwritt

en provisi on which permitt ed Oliver t

o apply “any necessary costs for rep a irs, i mprov ements, etc.,” toward his rental pay ments. Oliver

testi fied that

the carpet cl eaning was necessary because, when he took possession of the pro perty, the carpets “were extremely dirty with cigarette ashes, dirt, [and] blood.”

3 Under the terms of the part ies’ l ease agreement, effect ive September 1, 1993, Oliv er was requir

ed to make rental payments of $727 each month. Inasmuch as Oliver con tinued t o occupy the pr

operty af

terthe expirati on of the i niti al lease t erm on August 31, 1994, Ol iver was not reli eved of his obl igati on to make rental paym ents to Cathe y. AHCI, Inc. v.La mar Advertisi ng of Tennessee, Inc. , 898 S.W.2d 191, 194-96 ( Tenn. 1995). Effective September 1, 199 5, Oliver’ s monthl y rental payments increasedto $1,000. The trial took place in April 1996.

4 W e rejec t, how ever , Cath ey’s cla im th at sh e is entit led to credit for rental

payments coveri ng a period prior to the e ffective da te of the pa rties’ lease. 8 mortgage company after the trial star ted and a $172.95 2 payment for car pet cleaning. Oliver’s rental obligation for thi s same per iod of time totaled $25,448. 3 The judgment entered in favor

of Oliver, therefore, shoul d have totaled $1,437.82, not $15,225. 66, and we modif y the judgm ent acco rdingly. 4

IV. Termination of Lis Pendens

We also agree with Ca they’s contention that the trial court erred in ruling that the notice of lis pendensfiled against the subject property would not “cance l” until the satisfaction of Oli ver’s judgment. The ru le of lis pendensprovides that, “[d]uri ng the pendency of an action in equity, neither party to the litigation can so al ienate or encumber the property in dispute as to affect the rights of his opponent.” Henry R. Gi bson, Gibson’s Suits in Chancery§ 89, at 85 (William H. Inman ed., 7th ed. 1988). By fili ng a not ice of lis pendens at the commencement of a lawsuit, a plainti ff provides notice to the w orld of the existence of a pendi ng acti on affecti ng the t itle or right to posse

ssion of the su bject property. Figlio v. Shelley Ford, Inc. , 1988 WL 63497, at *3 (Tenn. App. June 22, 1988);
see also Boyd v. Green Farmers Coop., Inc. , 1990 WL 198249, at **2-3 (Tenn. App. Dec. 11, 1990); T.C.A. §§ 20-3-101 to -105 (1994). Pro spective purchasers and encumbrancers are thereby put on notice that the plaintiff has a claim which, if successful, would adversely affec

t their title to the property. Figlio , 1988 WL 63497, at *3; see also Beefy King Int’l, Inc. v. Veigle , 464 F.2d 1102, 1104 (5th Cir. 1972) (“The purpose of a lis pendens is to notify prospective purchasers and encumbrancers that any interest acquir ed by them in the property in litigation is subject to the decree of the court.”).9

When the suit on which the notice of lis pendensterminates, however, “the right to subject subsequent purchasers and encumbrancers to the claims described in the action
on which the lis pendensis bas ed com es to an end.” Figlio , 1988 WL 63497, at *4. Accordin gly, a lis pendensterminates upon the conc lusion of the underlying law suit, whether by dismissal or entr

y of a final decree. Id .; accord Gibson’s Suits in Chancery § 89, at 85 (notingthat “[t]he lis pendensand the consequent notice begin from the service of process after the filing of the complaint . . . and continue through the entire pendency of the action, and end only when the action is really ended by a final decree.”). In fact , under the applicable Tennessee statute, if the court does not order the termination of the notice of lis pende n s , the plaintiff has the duty to note the fact of termination in the register’s office where the notic e is filed. Figlio , 1988 WL 63497, at *4 (citing T.C.A. § 20-2-103).

In accordance with the foreg oing authorities, w e h old that the trial court erred in ruling that the lis pendensfiled in this case woul d r e main in effect until satisfaction of Oliver’s ju dgment. Once the trial court enter ed its final judgment, the purpo se of the lis pendens , to notify potential purchase rs or encumbrancers of the pendin g litigati on, no longer existed. Thus, upon the lawsuit’s conclusio n by the tri al court’s entry of the final judgment, the lis pendensalso terminated.

Our holding does not preclude Oliver from seeking to impose alien against Cathey’s property upon some other

legal or equitable bas is. The act of filing a notic e of lis pendens , however, does not create such a lien. Figlio , 1988 WL 63497, a t *3; In re Airport-81 Nursing Care, Inc. , 32 B.R. 960, 964 (Bankr. E.D. Tenn. 1983). The fil ing of a noti ce of lis pendens is merely a procedural step b y whic h a plaintiff provides constr uctive notice to third parties of his claim agai nst the subject property

. In re Airport-81 , 32 B.R. at 964; see also Beefy King Int’l , 464 F.2d at 1104 (A notice of lis pendens “is simply a notice of pending litigation”); Heller v. Turner Bros. Constr., Inc. , 663 N.E.2d 1243, 1244 (Mass. App. Ct. 1996) (indicating that practical effect of filing notice of lis pendensis to prevent sale or transfer of property until lawsuit’s conclusion, but such notice “is not strictlyspeaking a lien5 On appeal, Oli ver contends t hat the t rial co urt properl y refused t

o grant a writ of

possession because Cathey failed to co mp ly with th e not ice pr ovisio ns of the U nif orm Residen tial Landlord and T enant A ct. Although we have reviewedthe record car efully , we are unabl e to findwhere Oliver raised th is argument as a defense below. Moreover, i n raisi ng this defense on appeal, Oli ver neit her identi

fies the statutor y provi sions with which Cathey

allegedl

y fail ed to comply, nor explains why the noti ce provided by Catheyfailed to co mp ly with the se provisi ons. 10 on property”). In order to impose a lien aga inst the defendant’s property,“[t]here must be
some other

authority, equitable or otherwise, providing the basis for [such a] right.” In re Airport-81 , 32 B.R. at 964.
V. Possession of Property

We further agree with

Cathey’s contention that the trial court erred i n failing togrant her a writ of possession for the subject proper t y. Section 66-28-512 of the Uniform Residential Landlord and Tenant Ac t provides that, If the tenant remains in p osse ssion without the landlord’s consent

after ex pirati on of the t

erm of t he rental agreementor its termination, the l andlord may bring an action forpossession and if the tenant’s holdover is willful and not in good faith, the landlord, in addit ion, may recover actual damages sustained by the landlord, plus reasonable attorney’s fees. T.C.A. § 66-28-512(c) (1993).

In the present case, Oliv er’s lease of the subject property expired August 31, 1994. On July 22, 1994, Cathey notified Oliver, through his authorized agent, Jose Gonzalez, that his lease ended on August 31, and she requeste d him to vacate the

premises by that date. Instead of vacating the premises,Oliver brought thi s action for specific performance on September 1, 1994. Inasmuch as Oliver remained in possession of thesubject property without Cathey ’s consent aft er the te rm of his lease had expired, pursuant to section 66-28-512, we conclude that Cathey was entitled to a writ of possessi on for th e propert y. See, e.g. , Memphis -Shelby Co unty Airpo rt Auth. v. Johnson , 1 99 1 WL 96591, at *3 (Tenn. App. 1991). 511 VI. Attorney’s Fees and Costs
Finally, we con clude t hat the trial court erre d in refusing to make an awa rd of attorney’s fees to Cathey. Cathey’s claim for attorn ey’s fees was based on the parties’ lease agreement, which prov ided that, “[s]h ould this lease be placed in the hands of an attorne y, after default or breach for the en fo rcement of any rights her ein reserved or stipulated, the lessee agrees to pay r easonable attorney fees.” In denying Cathey’s claim forattorney’s fees, the trial court noted that Oliver had compl ied with his oblig ations under the lease agreement. The lease, how ever, required Oli

ver, as the lessee, to surrender the premises to Cathey at

the termination of the lease, an obl igation with whi ch Oliver failed to comply. When Cathey brought this action for possession, therefore, she was enforcing her rights under the lease. To the extent that Cathey was required to empl oy an attorney to enforce these rights, she w as entitled to an award of attorney’s fees. Griswold v. Income Properties, II , 880 S.W.2d 672, 68 1 (Tenn. App. 1993).

In denying Cathey’s claim for attorney’s fees, the trial court also noted that the main dispute before the court involv ed, not the enforcement of the parties’ lease agreement, but the interpretation of the option to purch as e the property. While we agree w ith the trial court’s assessment of the nature of the dispute before it, we also recognize that at least part of Cathey’s attorney’s efforts were spent prosecuti ng the action for possession caused byOliver’s refusal to vacate the premises. Accordingly, we reverse the trial court’s order with respect to this issue and remand for the court to make an awar d of attorney’s fees to Cathey based on the amount of the attorney’s time which may be attr ibuted to prosecution of the possession action.

We affirm, however, the trial court’s decis ion to tax 40% of the costs ag ainst Cathey rather than taxing all of the costs to Oliver. The assessment of costs was

within the sound discretion of thetrial court, and we conclude that such di scretion was properl y exercised in this case. Noland Co. v. Crye , 726 S.W.2d 531, 532 (Tenn. App. 1986); T.R.C.P. 54.04.12 VII. Conclusion

In conclusion, we modify the trial c ourt’s judgment by

reducing the amount awar ded to Olive r from $1 5,225.66 to $1,43

7.82, by granti ng Cath ey a wr

it of poss ession for the subject property, and by deleting the provision w hich continued in effect the lis pend ens filed against the property. We reverse that portion of the trial c ourt’s judg me nt which denied Cathey’s claim for attor ne y’s fees , and we remand f or further proc eedings consistent

with this opinio n. In all other respects,the trial court’s judg ment is affirmed. Costs on a ppeal are taxed to Ol iver, for wh ich execut ion may iss ue if nec essary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

TOMLIN, Sr. J.