1 Rule 10 (Court of Appeals). Memor a ndum Opinion .--(b) The Court, with the concurrence

of all judges part

icipating in

the case, may af

firm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum op inion it shall be designated “MEMORANDUM OPINION,” shall n ot be published, an

d shall not b e cited or relied on for any reason in a subsequent unrelated case. 

# F I L E D

M a r ch 17, 1999 C eci l C r o w son , Jr . A p p e l l a t e C o u r t C l e r k IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ WILLIAM L. HATLEY, III, FROM THE CAMDEN CHAN CERY ET UX, COURT, No. 9258 THE HON. WALTON WEST, Plaintiffs-Appel

lees, CHANCELLOR

C.A. No. 02A01-9806-CH-00162 Vs. AFFIRMED AND REMANDED JOSEPH L. MCDANIEL, ETC., Terry J. Leonard; Hicks & Leonard Defendant-App

ellant. of Camden, For Appellees

Joseph L. McDanie

l, pro se

____________________

_______________________________________________________ _ MEMORANDUM OPINION 1

__________________________________________________________________ __________ CRAWFORD, J. This is a suit for specifi c performance

of a real estate

contract. Defe

ndant, Jose

p h McDaniel, a.k.a. John O. Smith, appeals from the order of the trial court in favor of

the Plaintiffs, William L. Hatley, III and Tami R. Hatley. In early 1997, the Hatleys entered into a contract with John O. Smith for the purchase of two parcels of real property located in Benton County, Tennessee fo r the sum of $17,000.00. The contract was signed on January 10, 1997 by M.L. Smith Morgan on behalf of John O. Smith. On February 17, 1997, the contract was signed by William L. Hatley, III. On March 24, 1997,
a warranty deed

was executed by John O. Smith with M.L. Smith Morgan signing on his behalf. The warranty deed co ntain ed “restrictions” stating that for the deed to become valid, a bank officer must certify that b

y bank wire the pur

chase price p lus other fees we re deposited to Smith’s bank account on or before March 31, 1997. Boththe contract and

the warranty de

ed contain

a description of the two parcels of real property along with the following: “The above des crib ed is a portion of the property acquired by Joe L. McDaniel and wife, Sheila McDaniel, from the Heirs of Opal and Guy Chapel. . . .”2

While no t present in the re cord, the partie

s state that there

is a quit claim deed

in whic h th e McDaniels conveyed the two parcels of real estate to John O. Smith. On April4, 1997, the Hatleys filed a complaint alleging that John O. Smith had breached the real estate contract in that he “failed to make and deliver an appropriate deed of conveyance.” In their complaint, th

e Hatleys state th

at through no fault

of theirs, they were unable to wire the
neces sary funds, but contend that they have been ready, willing and able to do so in orde r t o close on the sale. The Hatleys allege that they attempte

d to wire the purc

hase money, but co

uld notdo so because the bank required Smith’s social security number and because the bank would notprovide the account number for the transfer of the funds. Moreover, the Hatleys allege that subsequent

to a communication

to Smith that they nee

ded the account n

umber and social s

ecurity number, Smith refused to honor the contract and stated that the re

al estate was goin

g to be sold to someone else. The Hatleys request relief in the form of specific performance. On October 7, 1997, the Hatleys filed an a mended com plaint naming as de fendant, Joseph L. McDaniel, a.k.a John O. Smith. The defendant di d not file an answer, howe

ver, he did file a Motion to

Dismiss for failure to state a claim and, in the alternative, a Motion to Hold in Abeyance pendi

ng his release fr

om prison, both of wh

ich were denied

by the trial court. On May 20, 1998, a hearing was held but the defend ant did not a ppear. On May 22, 1998, the trial court entered an order granting the Hatleys specific performance. The trial court found that John O. Smith and Joseph L. McDaniel were one and the same person. The trial court further determined that the defendant had executed a contract for the sale of the two parcels of real estate in question and found that the Hatleys did ac

cept the contrac

t within the time

allowed. Having found the foregoing, the trialcourt determined that th

e Hatleys were e

ntitled to specific performance

of the contract

and ordered the

m to tender the sum o

f $17,000.00 to

the Clerk and Master to be held f

or the benefit of

the defendant. The defendant

perfected this appeal and presented the following issue in his brief for our review: Whether

the tr ial court erred whe

n there was no evi

dence to establish that Appellant

Joseph L. McDaniel and John O. Smith were one and the same person. During oral argument, th e defendant con

ceded th at Joseph L. McDaniel and John O.3

Smithwere one and the same person and stated that this was not an issue. Rather, he raised the issue of whether the Hatleys were in br each of th

e contract by failing to fulfill the condition precedent of bank wiring the purchase money into his account before or on March 31, 1997. Furthermore, during oral argum ent, the defendant asserted that he had not received notice of the hearing. However, in his brief, the defendant contradicts this assertion by stating that he had received notice of the hea

rin g but was unable to attend because his parole officer would not permit him to leave Shelby County, Tennessee to atte nd the hearing in Be

nton County. In his replybrief, defendant contends there wasno proof at trial th at M. L. Smith

Morgan was acting for him. Since this case was tried by the trial court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the finding s, we must affirm, absent error of law. T.R.A.P. 13(d). Tami Renee Hatley’s testimony affirmed the allegations of the complaint. From a review of the very meager record, we find that the evidence does not preponderate

against the findings of the trial court. Thefact is conceded by the defendant that Joseph L. McDaniel and John O. Smithare one and the s

ame, and the testi

mony of Steve Russ

ell in the record suppo

rts this conclusion by the tr

ial court. The de

fendant, at oral

argument, also co

nceded that M.L. Sm

ith Mor gan was an agent of John O. Smith when signing the contract, and ther e is no proo f prese nted otherwise. Furthe rmore, the proof

does not preponde

rate against the

trial court’ s finding that the Hatleys were ready, willing and able to carry out the contract and had actually attemptedto do such. Finally, the defendant’s contention with regard to notice is without merit since he admits in his brief that he had received notice. Accordingly, the order of

the trial court is affirmed, and the case is remanded to the trial court for such further proceedings as may be necessary. Costs of appeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

____________________________________4

ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE