FILED

February 28, 1996

Cecil W. Crowson

Appellate Court Clerk

FIRST AMERICAN TRUST COMPANY, )

Executor of the Estate of )

Frances A. Oman, Deceased, )

) Appeal No.

Plaintiff/Appellee, ) 01-A-01-9507-CH-00324

)

VS. ) Williamson Chancery

) No. 22922

FRANKLIN-MURRAY DEVELOPMENT )

COMPANY, L.P., )

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE HENRY DENMARK BELL, JUDGE

CHARLES A. TROST

JOSEPH A. WOODRUFF

511 Union Street, Suite 2100

Nashville, Tennessee 37219-1760

THOMAS V. WHITE

315 Deaderick Street, 21st Floor

Nashville, Tennessee 37238

Attorneys for Plaintiff/Appellee

JOHN A. DAY

DONALD CAPPARELLA

150 Fourth Avenue North

Nashville, Tennessee 37219

GUY C. NICHOLSON

2049 Century Park East, Suite 755

Los Angeles, CA 90067

Attorneys for Defendant/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

LEWIS, J.
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O P I N I O N

The Chancery Court of Williamson County awarded the earnest money

in a real estate transaction to the seller, finding that the purchaser had breached the

contract. On appeal the purchaser contends that the seller failed to deliver a

marketable title and that there are factual disputes that preclude granting summary

judgment to the seller. We affirm the trial court’s decision.

I.

First American Trust Company (FATC) is the duly appointed executor

under the will of Frances A. Oman, who died on May 29, 1992. Ms. Oman died

owning several large tracts of valuable real property, some of which had to be sold to

pay estate taxes. 

On April 14, 1994Franklin-MurrayDevelopment, L.P. (FMD) entered into

an agreement to purchase a 224 acre tract in Brentwood for $1,000,000 down and a

$4,750,000 note secured by a deed of trust. The agreement called for the payment

of earnest money to an escrow agent and a closing date within sixty days. FATC was

obligated to furnish good and marketable title to the property. If certain contingencies

had not been met by the original closing date the closing could be extended up to sixty

additional days. Otherwise, time was made of the essence with respect to each

party’s obligations.

The transaction did not close within the time provided in the agreement.

Although the parties negotiated a modification of the amount of the down payment,

they remained at odds over FATC’s proposal to satisfy the estate tax lien. On

October 3, 1994 FATC filed an action in the Chancery Court of Williamson County
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seeking a declaration that it was entitled to the earnest money because FMD had

breached the agreement by failing to close. On November 9, 1994 FMD filed an

answer and counterclaim seeking damages from FATC for breaching the contract by

failing to furnish good and marketable title. FMD also recorded a lis pendens lien to

secure the payment of its anticipated judgment.

FATC moved to have the court remove the lis pendens lien because

FMD was seeking only damages and was not asserting an interest in the property.

After a hearing, the chancellor declined to remove the lien and recited in a December

14, 1994 order that “counsel for both sides asserted during oral argument that they

were still willing to close the contract if the other side was ready to perform all its

obligations.”

On January 19, 1995 FATC moved the court for an order of specific

performance. The motion asserted that FATC was ready and willing to transfer

unrestricted and unencumbered title to FMD. In support of the motion FATC filed

documents showing that the IRS and the Tennessee Department of Revenue had

agreed to waive their tax liens because FATC had provided security for the payment

of any tax due. The security provided for the IRS was a $4,000,000 surety bond and

a promise to pay the IRS the entire $1,000,000 down payment. After giving FMD

additional time to respond to FATC’s motion, the court entered an order on March 6,

1995 granting specific performance to FATC and ordering that the sale be closed on

March 28, 1995. The court further ordered that if FMD could not close on the date

specified it must release its lis pendens lien.

FMD did not close on the appointed date. FATC then filed a motion for

summary judgment on the merits of the case and the court entered a final judgment

dismissing FMD’s counterclaim and awarding the earnest money to FATC.
1W hether an incipient estate tax lien renders title to property unmarketable where the lien is to

be discharged by the sale proceeds is an interesting question, but one we will not address now.

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II.

Boiled down to its fundamentals, this case turns on the answer to two

questions: (1) Did the chancery court commit reversible error in its March 1995 order

ordering the parties to perform the contract? and (2) Was FATC entitled to summary

judgment holding that FMD breached the contract? We think the uncontradicted facts

show that the court properly decided both issues.

FMD defended the original action and based its counterclaim on the fact

that the tax lien rendered the title unmarketable. Whether FMD could have prevailed

on that theory has now passed into history and we take no position with respect to that

question.1 When FMD represented to the court that it was still ready and willing to

close the transaction if FATC could fulfill all its obligations, it waived any prior

objections based on the failure to furnish marketable title in a timely fashion. Waiver

is the voluntary surrender of a known right. Felts v. Tennessee Consolidated

Retirement System, 650 S.W.2d 371 (1983). Although FMD now quibbles with the

chancellor’s “finding” that FMD took a position in favor of closing the transaction, the

chancellor’s order reciting that fact went unchallenged until FATC took the steps

necessary to remove the tax lien. The uncontradicted facts show that FMD waived

any right it had to rely on the “time is of the essence” provision in the contract.

When time is no longer of the essence the parties have a reasonable

time in which to close. Miller v. Resha, 820 S.W.2d 357 (Tenn. 1991). FATC moved

for an order of specific performance within thirty-six days of the December 14, 1994

order. With the agreement of the IRS and the Tennessee Department of Revenue to

waive their claims for taxes, FMD’s only objection to closing had been resolved.
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Therefore, the chancellor was justified in ordering performance in accordance with the

parties’ earlier representations that they were willing to perform.

III.

It is important to note that ultimately the chancellor did not order specific

performance. The final disposition of the case came when FATC moved for summary

judgment on the merits of its contention that FMD breached the contract. So, in

actuality the March 6, 1995 order merely set a date certain for the closure.

When that date passed and FMD was unable or unwilling to close, FATC

moved for summary judgment. We think the uncontroverted facts show that FMD

breached the contract. As we have pointed out, the only defense raised to FATC’s

action was the fact that the tax lien clouded the title to the property. FATC was

prepared to deliver title on March 28, 1995 free and clear of all tax liens. Thus, FATC

was entitled to summary judgment on the breach of contract issue.

IV.

FMD argues that the order of March 6, 1995 was in the alternative; that

it gave FMD the option of closing or releasing its lis pendens lien. Even if FMD is

correct on that point there is nothing in the papers supporting the motion indicating

that FATC had elected to accept a release of the lien in lieu of all other remedies.

Similarly, there is nothing in the court’s order restricting FATC’s remedies to a release

of the lien. The court’s order of March 6, 1995 specifically reserved “all other matters”

after ordering a closing on March 28, 1995 or a release of the lien.
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The judgment of the lower court is affirmed and the cause is remanded

to the Chancery Court of Williamson County for any further proceedings necessary.

Tax the costs on appeal to the appellant.

_______________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

SAMUEL L. LEWIS, JUDGE