### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 17, 2001 Session
DONNA HOOVER

HARRI S V 

### . RULON T. HARRI S AND 

### PAIGE PEMBERTON WILLIAMS v. F. FORD BEACH, JR. Direct Appeal from the Chancery Court for Shelby County No. D30268-1; The Honorable Walter L. Evans, Chancellor

No. W2001-00502-COA-R3-CV - Filed January 4, 2002

This appeal involves a realtor’s commission for a failed sale of re al property that was jointly owned by parties to a divorce. Upon the divorce of the property own ers, the

court or dered th at their residence be sold. Having a listing agreement with a realtor in place, a contract for the purchase of the p roperty was signed. After difficulty consummating the sale, the rea ltor and the purchaser intervened

in the divorce and were granted spec ific performance of the contract. The court’s order set a closing date and an alternative divestiture closing date in case the parties again refused t o cooperate. As conte

mplated b y the cour

t, the divo rcing pr operty owners failed to attend

the closing and a dat e f

or the divestiture closing was set. A foreclosure was to occ ur, however, before the divestiture closing. One hour before the foreclosure , the purchaser under the contract a cquired the noteand allowed the foreclosure to procee d. The purchaser then acq uired the remaining intere st in the property at the foreclosure. The cha ncery court ordered the purchaser to pay to the re altor a commission on the amount paid for the note. The purchaser appe aled, and for the following reasons , we reverse. Tenn. R. App.P. 3; Appe al as of Rig ht; Judgme

nt of the C hancery C ourt Reversed and Remanded

A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined. James M. Allen, Memphis, TN, for Appellant G. Keith Rogers, Jr., Collierville, TN, for Intervenor/Appellee-2- OPINION Facts and Procedural History

Donna Harris and Rul on Harri s (collectively referred to as the Har rises) were granted a divorce by a Shelby County, Tennessee chancery court on December 17, 1999. The final decre e of divorce ordere d the Har

rises to se ll their jointly owned real

estate lo cated a

t 1879 Popla

r Avenue in Memphis. The decree noted that Ford Beach (Mr. Beach) of Beach Inve stment Company had been chosen as the listing agent for the property.

Soon after the court order was issued, the H arris es and Mr. Beach executed a commission and listing agreement. The agreement named Mr. Beac h as the e xcl usive broker of the property. Under the agreement, the Harrises were to t ender a six perc ent commis sion to Mr. Beach up on sale of the property.

On May 12, 20 00, wit

h Mr. Beach still serving as the Harrises’ listing agent, the Harrises entered into a contr act to sell the property to Paige Pemberton Williams (Ms. Williams) for $145,500.00. After

severa l failed c losing atte

mpts, Ms. W

illiams and Mr. Be ach wer e allowe d to intervene in the Harrises’ divorce action. Upon motions by Ms. Williams and Mr. Beach, the court ordered specific performanc e of the contract on the Harrises’ prope rty.
Under the ruling, the court

ordered the Harrises to attend a closing set for July 21, 2000 and convey the property to Ms. Williams. The court’s order stated that if the Harrises failed to attend the hearing , the prop erty would be dive st ed fro m the Har rises an d transf

erred t o Ms. Willia

ms without the Harrises ’ i nvolveme nt. A dive stiture c losing wou ld be set to accompl ish this if necessary. Further, t o help ena ble th e Harrises to close, the court’s order stated tha t Mr. Beach “agrees to waive [$1,000.00] of the commis sion to whic h he is ent

itled fro m the sale

and [Ms. Williams] ag rees to add to the agreed upon purchase amount the amount remaining as ‘ Due from Seller.’ ” In eff

ect, this l anguage

require d Ms. Willia

ms to pay $1 ,000.00 of

th e commiss ion the Harrises would owe upon sale of the property.

Ms. Williams attended the July 21, 2000 closing and tendered the appropr iate funds . The Harrise s, however , failed

to attend a s ordere d by the co urt, cau sing the tr

ansfer to fail. Accordingly,
a s contemplated in the court’s previous order, a divestiture closing was se t for the end of August

.

Soon after the failed closing, Ms. Williams discovered t hat f oreclosure proceedings were being initiated

on the pro

pertyby a mortgage holder. The foreclosure proceedings wer e scheduled to occur beforethe divestiture closing. Ms. Williams contacted the mortgage holder and attempted to delay the foreclosure until after the divestiture closure. The mortgage holder refused, however, due to previous extensions granted to the Harrises. On August 10, 2000, on e hour before the scheduledforeclosure s ale, Ms . Williams purchased a first mortgage on the property for-3-

$116,000.00. She then allowed the foreclosure to proceed a nd acquired the remaining interest in the property at the sale.

On August 28, 2000, Mr. Beach pe titioned th

e court t o hold Ms. Williams in

civil contempt for purchasing the mortgage

and rema ining inter

est in the property in a manner outside the scope of the court’s order. At the hearing on Mr. B each’s petit ion, the c ourt foun d that Ms. W illiams did nothing illegal or contrary to the court’s order. Instead, the court held that Ms. Williams “just took advantage of a situation that adhered to her bene fit.” Failing to find contempt, the cour t decide d to trea t Mr. Beac

h’s petiti on as a pe

tition to collect a real estate commission. A s a result, t he court , under it s equitab le power s, order ed Ms. Williams to pay Mr. Beach $6,960.00 - six percent of $116,000, the price paid by Ms. Williams for the mortgage on the property. Ms. Williams appeals from that decision.

Issues I. Whethe r the c hancery court erred in holding Ms. Williams, as the buyer of the property, liable for $6,960.00 of Mr. Beach’s agreed upon commission; and

II. Whether

the chancery court erred in failing to find Ms. Williams liable for the entire commission and attor

ney’s fees expended in

the attem pt to collect the commission.
Standard of Review When a civil

action is heard by a trial judge sitting without a jury, our review of the matter is de novo on the record, accompanied by a pre sumption of correctness of the factual findings below. Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988); T.R.A.P. 13(d). We may not reverse the findings of fact made by the trial judge unless they are contrary to the preponder ance of theevidence. Jahn
v
. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). This presumption of correctne ss, however , does not attach to the trial judge’s legal determinations or the trial court’s conclusions that are based
on undisputed facts. NCNB Nat’l Bank v. Thrail kill , 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). Law and Analy sis

Ms. Williams argues, and we agree, that

there is no legal or equitable basis for holding her liable for the r eal e stat e commission. First, no contract existed between Ms. Williams and Mr. Beach. Instead, the only contract denoting the six pe

rcent c ommission du e to Mr. Be ach upon sale of the property existed between Mr. Beach a nd the Harrises.
Further, no contra

ct can be imp lied b etween

Ms. Willia

ms and Mr. Beach. W

e stated in Turnure v. Poss , 12 Tenn. App. 519, 522 (Ten n. Ct. Ap p. 1931) that, “[w]hen the agent has an expressed contract with the seller for full compensa tion, the law will not raise an implied contract in a third person, to pay for the same service .” Here , Mr. Bea

ch and the Harrise s execut

ed a con tract, which appears from the record t o contemplate full compensation to Mr. Beach for the sale of the-4-

property. Thus, although a cause of action may lie against the Harrises under a breach

of contract theory, a cause of action f or the sa me canno t be mainta

ined aga inst Ms. Williams.
Second, we agree with the chancery c ourt in holding that Ms. Willia ms did not ac t illegally
or in violation of the court’s order. No law or precedent prevented Ms. Williams from purc hasing the mortgage on the property and allowing the foreclosure to proceed. Similarly, we find nothing in the court’s order violated by Ms. Williams. Accordingly, Ms. Williams’s conduct, with regard to the appli cable

law and court order, could not have served a s a proper basis for finding he

r liable for the commission. Although Mr. Beach fails to i dentify any case law or statute supporting the court’s ruling, he argues that the court acted properly under its equitable jurisdiction in holding Ms. Williams liable. Mr. Beach c ites numer

ous equita

ble maxims , which he alleges empowered the court to rule in h

is favor. W e respe ctfully di sagree , howeve r, with Mr . Beach’ s conclus ions.

In support of

his argument, Mr. Beach

alleges that Ms. Williams “decided to take advantage of the divorcing couple and of [Mr. Beach] behind le gal tech nicalitie s.” We f

ind this sta

tement to be far from the truth. If any parties are to be consider ed at fa ult in this a

ction, tho se partie s can only be the Harr

ises. Furt her, exe rcising le gally vested rights cannot be deemed bythis court to be hiding “behind legal technicalities.”

At all times relevant

to this app eal, the

Harrise s refuse d to coope rate with one another, even t o the limited

extent of procee ding toget

her with t he court ordere d sale of

their re al e state. Thei r violation of the court’s ord ers is the sole rea son Ms. Wil liams eve n became a party to the underlying suit. In addition, the Harrises failure to keep the mortgage c urr ent resulted in the possibility of making the court’s order demanding them to sell the property a nullity. Their actions allowed M s. Williams to act within her legal rights, purchase the mortgage, and allow the foreclosure to proceed. Accordingly, by our review of the record, nei ther legal nor equitable grounds exist for holding Ms. Willia

ms liable f

or Mr. Bea

ch’s com mission. Mr . Beach m ay be co rrect in his assertion that he “ear ned” his fee. Hisfee, how ever, w as not ea rned fr om the Ms. Williams. Because we find that Mr. Beach was ent

itled to no commission from Ms. Williams, we pretermit the issue on attorney’s fees. Conclusion

For the foregoing reasons, the decision of the trial court is reversed

and remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed against A

ppellee , F. Ford Beach, Jr., for which execution may issue if nece ssary.

___________________________________ ALAN E. HIGHERS, JUDGE