# FILED

March 12, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE DAVID G. K

NOBLE, JR.and ) SUZANNE E. KNOBLE ) ) Plaintiffs/Appell

ees, )

) Appeal No. ) 01-A-01-9803-CH-00153 VS. ) ) Davidson Chancery ) No. 97-890-I JOSEPH M. TAYLOR, ) ) Defendant/Appel

lant. ) APPEAL FROM THE CHANC ERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENN ESSEE THE HONORABLE IRWIN H. KILCREASE, JR., CHANCELLOR JAMES D. KAY, JR. JOHN B. ENKEMA Suite 340M, Washing ton Square Two Nashville, Tennessee 37201 Attorneys for Plaintiffs/Appellees

PAUL R. WHITE ROBERT W. RUTHERFORD Rutherford, DeMarco, White & Soloman Suite 400, Washington Square 214 Second Avenue N

orth Nashville, TN 3 7201 Attorneys for De

fendant/Appellant

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: KOCH, J. CAIN, J.2 

## OPINION This appeal involves a dispu te over a contract fo

r the sale of real prope

rty i n Davidson County. T

he Seller appeals

from a trial cour

t decision grantin g summary judgment tothe Buyers for specific performanceof the contract. We affirm the trial

court. The parties entered in

to a contract on Nove

mber 22, 1996, for

a house and lot in Davidson County, Tennessee. Appellant, Mr. Taylor, was the Seller, and Appellees, Mr. And Mrs. Knoble, were the B uyers. T he parties execute d a standard form contract, b

utadded an Addendum,

the effect of

which is the basis of the dispute herein . That Addendum st ates: If Buyers are unable to assume first mortgage hel d by American Home Funding, Buyer s wi ll secure other financingwithin 60 days of t he date of contrac t and close sale within that per

iod. Buyers will c

ontinue to pay Seller $554.94 pe

r month until sale closes. The main body of the contract itself included language that, “the sale will be closed on January 25, 1997, or as soon thereafter as possible.” The Buyers moved into the house on Dece mber 9, 1996, and paid rent . No closing took place by January 21, 1997 or by January 25, 1997. A closing was setfor February 21,

1997, and t

he Buy ers executed various documents at that time, including documents nec essary to assume the

mortga ge from American Home Funding. The Seller did not attend the “closing” and took the position that the contract was no longer in effect since th

e salehad not closed on Januar y 21, 1997. Apparently, anumber of conversa tions took place betw

een the Buyers and Seller during January and Februa ry 1997. There are a number of factual disputes1 Since this matter was decided on a motion for summary judgment, there

is no trial transcript. No deposition tra nscripts are avail

able, and no stat ement of evidence was approved by the t rial court. All f

actual information

available to this court is found in the ple adings and in

affidavits submitte

d in relation to the dispositive motions file

d by both parties.

3 about these conversations. 1 However, those disputed facts are not materialto the determinative issue

in this appeal. E ssentially, the parties disagre e as to the meaning a

nd effect of

th e Addendum

quoted above. The Seller contends that the Addendum was intended to set a date certai

n, January 21, 1997,

within which, under

any contingency, the sale would close. On the other hand, t he Buyers assert that

the language in the main bod y of the contract, “the sale will be closed on January 25, 1997, or as soon thereafter as possible,” controls

. They further subm it that the Addendum language ref erenc ing 60 days from the date of the contract was not triggered since they were not “unable to assume first mortgage held by American Home Funding.” In this litigation brought by Buyers seeking specific performance, th e Seller moved for sum

mary judgment on the basis tha t the Buyers had fai

led to close the contract within s ixty (60) days of ex ecution of the cont ract. By Order entered January 21, 1998, the trial court deni

ed the Seller’s Motion for Summary Judgment. The Buyers then moved for summary judgment on the basis that they

were prepared to close a s soon as possib le after January 25, 1997. By Order entered February 20, 1998, the trial court granted summary judgment in favor of the Buyers, ordered specific perform ance of the Contrac

t and awarded attor

neys’ fees and costs. By Orde r entered March 2 , 1998, the trial co urt entered final judgment ordering that the cl

osing o cc ur and awarding att orney’s fees in the amount of $8,253.50. Sell er does not argue that Bu yers breached the c

losing obligation in the4

main body of the contract. In other words, he does not assert that i

t was possible for the Buyers to close the transaction sooner than February 21, 1997. Therefore, this Court is not presen ted with any issue o f wh ether the Buyers breache d the contract term re

quiring them to close t

he sale “on

January 25, 1997, or as soon thereafter as possib le.” Rather, Seller rests his e ntire claim on an argu ment that he intended throughthe Addendum to set a date certain , 60 days f

rom the execution of

the contract, January 21, 1997, for the closing. It is his position that the Addendum accomplishes that intent and, since no c losing occurred by

January 21, 1997, the contract was not enforceable by the Buyers after that date. Thus, the initial issue to b e addr essed by this Court is th e meaning and effect of the Addendum. As noted above, this case was determined by the gr ant of summary judgment. Summary judgment is appropriate where no genuine issue of material fac

t exists and the moving pa rty is entitled to judgm

ent as a matter of law. Tenn . R. Civ. P . 56. The purpose of summary judgment i s to resolve controlling iss ues of law. Byrd v. Hall , 847 S.W.2d 208 , 216 (Tenn. 1993), Bellamy v. Fe

deral Express Corp. , 749 S.W.2d 31, 33 (Ten n. 19 88) (ci tations omitted). Summary judgment “is an efficient means to dispose o f

cases whose outcome depen ds solely on

the resolution

of legal issues.” Byrd v. Hall at 21 6, quoting Rollins v. Winn D ixie , 780 S.W.2d 765, 767 (Tenn. App. 1989). It is well settled that the interpretation of a written agre ement presents a question of law and not

of fact. Rainey v. Stansell

, 836 S.W.2d 117 (

Tenn. App. 1992); APAC-Tenness

ee, Inc. v. J

.M. Humphries C

onst. Co. , 732 S .W.2d 601 (Tenn. App. 1986). If a contra ct is plain and unambiguous, the meaning thereof is a question of law for th e court. Warren v. Metro , 955 S.W.2d 618 (Tenn. App.5

1997); Petty v. Sloan , 197 Tenn. 63 0, 277 S.W.2d 355 (1955) . Thus, the meaning of

the Addendum is an iss

ue to be determined by the Court, as a matter of law, and is the p

roper subject of a s

ummary judgment moti

on. Seller’s interpr

etation of the Adden

dum is “that if the

Buyers are unable to assume the first mo

rtgageheld by American Home Funding (and by inference close the sale by signing that assumption) then they will secure other financing and, in any event, close the sale within sixty- days of the initial da te of the

co ntract.” Based upon this interp retation, Seller

submits he was entitl

ed to summary judgment. Seller ’s interpretation, however, is rebu

tted by the plain language of the Addendum itself. By its terms, the A ddendum became eff

ective only “If Buyers are unable to assume firs t mortgage held by American Home Funding. ” This phrase defines the situation or contingenc y to which the remainder

of the provision applies. This delineatio n of the one specific

situation in which the

Addendum applies negates Seller’s contention that it appl

ies in all contingencies and “in any event.” When interpreting a

contract, courts will enforce the contract as written, accordingto its plain terms. Bo b Pearsall Motors, I nc. v. Regal Chr

yslerPlymouth, Inc. , 521 S.W.2d 578, 580 (Tenn. 1975); Warren v. Metr o , 955 S.W.2d 618. We interpret the plain terms of the Adden dum to mea n that the sixty-day closing requiremen t only applies to the

situation where the Buyers are unable to assume the exis ting first mortgage. The rights of the pa

rties to a contractare determined by what they have put into their agreement. Cookeville P.C. v. South eastern Data System , 884 S.W.2d 458 ( Tenn. App. 1994).

The provision included by the parties in the Addendum did not alter the closing da

te provision in the contra

ct in any situation othe

r than that describe

d. In addition to his argume

nt based on

the Addendum’s language, the Seller2 The Selle r main tains those facts w ere partially esta

blished by Buyers’ failure to deny some

requests for admiss

ion. Whether all r

equests were time

ly denied and the effect of the Buyers’ responses are disputed. However, since we findit unnecessary to look beyond the plain lan guage of the contrac

t, those disputes are immateri al. 6 also maintains that the la

nguage of the

Addendum and the enti

re contract must be interpreted in light of his intent (t o establish a date ce

rtain for closing) and in light of certain facts

surrounding the draf

ting of the Addendum. 2 Seller submits that summary judgment for the Buyers was not appropriate b ecause of the existence of genuine

and material issues of disputed fac t which he identifie s as: the meaning of and purpose for the Addendum. The court, in

arriving at the inte

ntion of the parties t

o a contract, does not attempt to ascertain the pa

rties’ state of mi

nd at the time the contract was executed, but rather their intentions as ac tually embodied and ex

pressed in the contractas written. Rainey v. Stansell , 836 S.W.2d 117 (

Tenn. App. 1992); Petty

v. Sloan , 197 Tenn. 630, 277 S.W.2d 355 ( 1955). We find the terms of the Addendum

and contract to be a

plain and unambiguous

expression of the par

ties’ intent. No further

examination of inten

t is warranted. Further, the inte rpretation of the Addendum is a qu estion of law, not fact, so the meaning of that provision is not a disputed fact. Having determined, as a matter o f law, the meaning of the Ad de ndum, application

of the facts will determ in e its effect. The material and undisputed fact is that the Buyers were a ble to assume the fir

st mortgage on the house

held by American Home Funding and were prepared to close the purc hase on February 21, 1997. Buyers have submitted undispute d proof they were,

in fact, able to assume the mortga ge. Therefore , the Addendum, including its sixty-day provision, was neve

r triggered. The c ontract required closing on January 25, 1997, or as soon thereafter7

as possible. As discussed above, Seller has not argued that it was possible fo r the Buyers to close bef

ore February 21 ,1 997, the date the Buyers executed documents in performance of their obligation to close the sale. We find the Buyers were entitled to enfo rce th e contract for the purchase/sale

of the real property.

Therefore, w

e affirm the judgm

ent of the trial courtand remand this matter for any further procee dings which may be necessary. Costs a

re taxed to the Appe

llant.

_______________________________ PATRICIA J. COTTRELL, JUDGE CONCUR:

____________________________ WILLIAM C. KOCH, JUDGE

____________________________ WILLIAM B. CAIN, JUDGE