# FILED

Au gust 28, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

HERBERT A. JEN KINS, d/b/a ) BLOUNT CHANCERY HERB J ENKIN S REALTY ) ) Plaintiff/Appellant ) NO. 03A01-9704- CH-00139 ) v. ) ) HON. CHESTER S. RAINW ATER, JR. ROY W. GODDARD and w ife, ) CHANCELLOR FRANCES H. GODDARD, ) ) Defendants/Appellees ) ) AFFIRMED L. Lee Kull, M aryvi lle, for Appell ant Arthur B. Goddar

d and Robert N. Goddard, Mar yvil le, for Appellees

O P I N I O N

INMAN, Se nior Jud ge
This is an acti on to recov er a real es tate commission. The plaintiff-broker [hereafter broker

] alleged th at the owner s of the property

orally listed thei r property with him, that he procured a buyer w ho contracted to purchase the pr operty, and because of his efforts he is entitled to a commission. The defendants alleg ed the contract was mutually

abandoned, and that ther eafter they had no contract w ith the broker. The Ch ancellor found that an alleged or

al listingwas not pr

oved by t he required standard of clear a nd cogent ev idence. The broke r appeals, in sisting that under the preponder

ant facts he is ent itled to a commi ssion. A background discussion is necessary for a perspect ive of this case. In early 1994, Roy W. Goddard orall y listed his 45-acre tract of land w ith the broker , who was to receive a five perc ent commission i f he procured a purchaser. The brok er soon showed the pr

operty to G addis and Diet rich, all of whom met w ith Goddard on th e property. An agreement was reached, which was reduced to writing and signed by all parties. An A gency D isclosure Statement was executed by Goddard wher

ein he acknowledg ed that the broker was his agent.1 The op inion was a pparen tly based on the f act tha t Mrs. God dard did not sign

the contract. The real estate w as owned by

Roy W. Goddard separately , by inheritance; in 1977, dower and curte sy estates were abolished, and Mrs. Goddard therefore had no ali enable interest in the proper

ty. Her signature was not required and its absence clearly did not vi tiate the contr act. This point , howeve r, is not crucial. 2 Within days, the broker received a letter from Goddar d’s attorney , stating t hat the contract was invalid 1 and that the contr act should inc lude an exchan ge of likekind property

under the Inter nal Revenue Code. A meeting was held with all parties in attendance w hich was productiv e of no affirmative result, and the matt er thereafter languished. In July a nd August 1994, t he broker ret urned the earnest money to Gadd is an d Diet rich, but G add is rem aine d int eres ted i n pur chas ing th e pro pert y, which he ac complished in M ay 1995, about oneyear after t he original contract was abandoned. Gaddis testified that after Goddard returned his earnest money he considered the contract at

an end and thereafter had no invest ment funds until Jul y 1995 w hen he so ld a wa reho use a nd us ed th e pro ceed s to p urch ase G odd ard’ s pro pert y. Because the broker essential ly pitch es his case up on the theory that the defendant and the purchaser conspired to defeat his commission , we reproduce rele vant p ortio ns of the d efe nda nt’s test imon y: Q: When did you first talk to Mr. and Mr s. Gaddis about entering i nto a different contract? A: I’m n ot su re. T he[y] was int eres ted, they u sed t o tak e the ir dog s down there and run on t he place, and they stayed interested i n it all the time. And we deci ded -- it had been over a year, that it ou ght to be out by then. It was s upposed to have been concluded by June the 15th, they were suppos ed to pay me. Q: The contract that the Goddard firm prepared is dated M ay 9th, 1995. When did you first talk to the Gaddises about entering i nto a new contract? A: W ell, we talk ed se veral time s. If we cou ld get a con trac t we co uld li ve with, well, we would go ahead and do it. Q: When did you first talk to them about entering into a new contract? A: I’m not sure, t hey’ve been -- w ell, they’ ve come dow n there a lot, they’re good friends of ours. Q: Did you ta lk to the Goddar d firm in that summer

of ‘94? A: No, we waited until we thought the co ntract wa s out.3

. . . . . Q: Did he (Gaddis) ever express to you that he was in a hurry to buy this prop erty? A: No. He just

told me he w anted it some time. He said he could wait a year or two, whatever. Q: Until this

contract wasn’t any g ood. A: Yeah. Q: Whose idea was it to do the new contrac t? A: W ell, Gadd is sai d he b elie ved we c ould work up one t hat we coul d live with. Q: Whose idea was it to do the new contrac t? A: W e both talked about it, I do n’t know who brought it up first. He said, “I think if we can get a new contract, we can do business .” Q: Well, this was for your benefit, thoug h, wasn’t it? A: Well, his, too. He wa s wanting it.

. . . . . Q: I take it Mr . Gaddis never told you he didn’t want the property anymore. A: No, he never

did tell me he didn’t wan t it.
Our review of the findings of fact m ade by the trial court is de novo upon the record of the tr ial court, accompanied by a presumption of the correctness o f the finding, unles s the preponderanc e of the evidence is otherw ise, T ENN . R. A PP . P., R ULE 13(d). The Chancellor found that the sales contract w as abandoned. In li ght of the fact that the earne st money was returned by the broker at the instance of the parties, and that they, as well as the broker, obviously considered thecontract to bedefunct, we are unabl e to find that the ev idence preponderates against this finding . It then becomes necessar

y for the brok

er to prove by clear

and convinc ing evi dence that he had an oral li sting ag reement after the wri tten contract w

as abandoned, Parks v. Morris, 914 S.W .2d 545 (Tenn. Ct. App . 1995). The Chancellor found from all the cir cumstances incl uding the cr ucial issu e of credibili ty that the br

oker failed to pr

ove a lis ting agreement by clear and convinc ing2 An oral listing contr act is reco gnized i n Tennessee, but must beproved by clear and conv incing ev idence. Parks v. M orris, 914 S.W.2d 545 (Tenn. Ct. App. 1995). 4 evidence. E ven though G addis remained i nterested in pur chasing the property ( and more than one ye ar later di d so), and he and t he defendant discussed the status of the broker, th ere is no sat isfactory p roof that the broker had a listi ng agreement with the defendant. The fact that Gaddis ev entually pur

chased property

is not dispos itive of the issue. The plai ntiff must show that the property was li sted with him, or, faili ng that, that the defendant agreed to pay him a commission i n some amount. There i s no proo f of th is, much les s cl ear and c onv inc ing pro of. The appellees rel y on Pacesetter Pr operties v. H

ardaway, 635 S.W.2d 382 (Tenn. Ct. App. 198 1) as authori ty for their argument that t hey did not en gage in bad faith in renewing negotiations with Gaddis. In Hardaway, the owner al lowed a br oker to attempt to

find a tenant. The broker intr

oduced a prospect ive tenant, Stein, to the ow ner who beg an negotiation s with him. Thereafter, the bro ker notified the owner that Stein refused a ten-year term and considered t he rent exc essive. Stein lost i nterest in the property a nd began a search in other c ities for appropriate space. He was unsuccessf ul and reapproached the owner who, six months later, contracted w ith Stein to th e exclusi on of the broker. One of the issues
was w hether the ow ner interru pted the negotiations conducted by the broker with the intent to delay the sale so as to avoid payment of a commission. W e held that there was a sufficie nt break-off of negoti ations and sufficient lapse of time before renewal of negotiations to prevent t he initial e ffort of the broker from bei ng the procur ing cause of the lease, and that there was no evidenc e of fraud. We recognize the saluta ry pri nciple that sh arp practic e must not be all owed to defeat the commission of a broker w ho has brought a seller-b uyer tog ether pursuant to contract. 2 See, Robinson v . Kemm ons Wilson Realt y Co., 293 S.W.2d 754 (Tenn. Ct. App. 1956); Thomas v. Million, 250 S.W.2d 111 (Tenn. Ct. App. 1952). But the broker failed to prove a cont ract, and we think Pacesetter controls.5

The judgment is therefore affirmed at the costs of the appellan t.

___________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

________________________________ Hersche l P. Franks , Judge

________________________________ Don T. Mc Murray, Jud ge