# FILED Dec. 16, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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JOAN DOUGLA

S and ) GERMA NTOWN REA LTY, INC ., ) d/b/a COLDWELL BANKER, ) ) SHELBY CHANCERY Plaintiffs\Appella nts ) v. ) ) FRANK TIBBS and ) Appeal No. 02A01- 9602-CH-00033 AF SAM EH M. TIB BS, ) ) Defendants\Appellees )

APPEAL FROM THE CH ANCERY COU RT OF S HELBY COUN TY AT MEMPHIS, TEN NESSEE THE HONORABLE FLOYD PEETE, CHANCELLOR

JAM ES H. KEE J. MICHA EL FLETCH ER 780 Ridge Lake Boulevard, Ste. 202 5583 Murray Avenue, Suit e 100 Memphis, TN 38120 Memphis, TN 38119 Attorney for Appellant Attorney for Appellee

REVERSED and REMA NDED WILLIA M H. INM AN , SENIOR JUD GE CONCUR: ALAN E. HIGHERS , JUDGE HOLLY L ILLA RD, JUDGE O P I N I O N2 I This action to r

ecover a commission on the s ale of real estat e was dis missed at the close of the plaintiff’s case. She appeals and pr esents for rev iew the pr opriety of the dismissal of her case. Subject real estate was purchased by the def endants in 1985. Four years later they

listed the pr

operty w ith the plaint iff, a licensed ag ent. The listi ng remained effective but unf ruitful until 1991 when the owners selected another realty firm (Mills), and listed the property with it, which also proved to be unfruitfu l. When the Mills listingexpired, the plaintiff arra nged a six-months lease of the property w ith Willingham. Upon the expirati on of the lease the ow ners again listed the property

with the plaintiff for a peri od beginning March 26, 1992 and ending September 26, 1992, at a price of $335,000.00. This listi ng was e xtended to Apr il 2, 1993 at a reduced pr ice of $310,000.00. During th e listing period, in ear ly 1993, Gar y Davi s contacted the pl aintiff and expressed an interest in purchasing subject prope rty. She verified Davis’ employment and credit history and repo rted her findings to the def endants. Davis te stified that from the beginning he intended to purc hase the propert y but delayed doing so until certain other obligations were resolved. As a fu rtherance of his intention he ne gotiated, through the plaintif f, a lease with option to purchase agreement w ith the defendants and made a security deposit of $2,200.00 and an earnest money payment of $10,000.00. W hen certain other obligations were resolved he made an applicati on for a loan at Un ion Planters Bank in early 1994. This loan was refused. The defendants s uggested a C alifornia lender might be receptive to a loan application, or fa iling that, the local National Bank of Com merce might consider a loan to Davis. The option held by

Davis e xpired M arch 31, 1994. The California l ender rejected Davis’ loan applicat ion in April , 1994. The plaintiff continued h er efforts to arr ange a loan for D avis, and conferred with the defendant s on April 2 6 and May 3, 1994 about process ing the appli cation3

with the N ational Bank of Commerce. In the meantime the Davis ’ continued to r eside in the house. The pl aintiff assumed that the option had been ex tended, and the defendant s at no time informed her to cease her agency activities. In August, 1994, the plaintif f was informed by Davis to prepare a new contract for National Bank

of Commerce, and conta cted the defendants, w ho told her that “the deal was off, there was no deal, that I w

as not invol ved.” Davis te stified that shor tly after he made application to the Californi a lender he talked wi th the defendants about hi s continuing residency in the house, and that he and the defendants oral ly agreed to extend th e option for six months. He test ified that the defendants sai d nothing about the plaintiff being no longer i nvolved, and he continued to dis cuss his l oan application at National Ban k of Commerce w ith her throughout the summer of 1994. The oral extension w as confirmed by

letter dated July 1, 1994 from the def endants to Davis. The defendants sold the pr operty to D avis on Oc

tober 3, 1994 for $305,000.00. Credi t for the securi ty deposit of $2,200.00 and the earnest money payment of $10,0 00.00 was given to Davis by the defendants. The plaintiff sought to recover a sales commis sion on two theories: ( 1) after Davis’ option to purchase expired, the plaintif f, with the defenda nts’ approval, continued her efforts to assist D avis in procuring a loan to purc hase the propert y which constituted an implied renewal of th e defendant s’ agreement to pay her a commission, and (2) quantum m eruit. An ad diti ona l grou nd f or rec overy, cons truc tive fraud, is asser

ted for the first t ime, on appeal, w hich we cannot consider. The Chancellor dismissed the p laintiff’s case, upon motion, because(1) the plai ntiff admi tted “th ere was no c ontr act in e xi sten ce at

that time ,” ( 2) t he pl aint iff admitted that as of Apr il 2, 1994 she h ad no will ing buyer , and that the defendants “could have told her the de al was off,” ( 3) there was insufficient pr oof that the listi ng agreement was extended. To put the undisputed fact s in perspect ive, we reiterate t hat the orig inal option held by Davis expired March 31, 1994, and that it was extended for six months, culminating in its exercise and the subsequent sal e of the property to the defendants4

on October 3, 1994. So f ar as the record reveals there is little doubt that the sale
was faci lit ated by the e ffort s of t he pl aint iff. II In a bench tria l a motion to di smiss should be denied if the plai ntiff has established a prima facie case. City of Col

umbia v. C.F.W. Const. C o., 557 S.W.2d 740 (Tenn. 1977 ). Our review of the findings of fact mad e by the trial court is de
novo upon the record of the trial court, accompanied by a presumpti on of the correctness

of the finding, unl ess the preponder ance of the eviden ce is otherw ise. T ENN . C ODE A NN . § 50-6-225(3) (2), Stone v. City of McMinnv

ille, 896 S.W.2d 584 (Tenn. 1991), but no presumption attac hes to legal conclusions or when th e conclusions are based on undis puted facts. National Bank of N.C. v. Thrailkill, 856 S.W .2d 150 (Tenn. App . 1993). The plaintiff argues

that the transac

tion was u ltimately

closed pursu ant to the exercis e of an extension of the option by D avis g ranted after the ex piration of the listing period and the or iginal opt ion period, w hich justifies the litig ant’s conclus ion that the d efend antsimpl iedl y renewed th e ag reem ent t o pay the p lai ntiff a
comm issio n in t he eve nt Da vis pu rcha sed t he pr ope rty. In Pyles v. Cole, 241 S.W.2d 841 (Tenn. App. 1951), the br oker, wi th the knowledg e of the owners , continued to s how the prope rty after hi s listing expired. The defendants sold their property to one Crocket t, to whom the property h ad been shown by

the broker. The case for a commiss ion was resisted on the g rounds that the listing contract had expired, and that the sale was not the product of the broke r’s efforts. This Cour

t held, inter alia, that “ . . . a contract w ill be deemed renewed . . . where the pr incipal has recogniz ed that the broker is continui ng negotiat ions looking to a sale . . . “ It is well set tled in this

State that if the br

oker’s efforts were the procuring cause of the sale, he is entitl ed to his commis sion. See Robinson v. Kemmons

Wilson Realty Co., 293 S.W.2d 574 (Tenn. Ct. App. 1956); Pacesetter Properties Inc. v. Hardaway, 635 S.W .2d 382 (Tenn. App . 1981). As held in Pacesetter, su

pra,5 If the agent is the procuringcause of the trans action, he is due a fee; if he is

not the procur ing cause, h e is not entitled to a fee. The evidence thus fa r presented indicates that the plaintiff did much more than merely introduce Davis to the owners. She procured Davis and assisted in his leasing the property w ith the event ual purpose of purc hasing it. Davis, so far as the proo f sh ows, in tend ed f rom t he be ginni ng of his oc cupa ncy to purc hase the p rope rty, but was hi ndered by financ ing obstacl es, later overcome. We think that under all of the circumstan ces presented, the plaintiff at the l east establis hed a prima facie case for relief. The judgment is reversed and the case is remanded for a new trial, w ith costs assessed to the appellee s.

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

______________________________ Alan E. Hi ghers, Ju dge

______________________________ Holly Lillard , JudgeIN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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JOAN DOUGLA

S and ) GERMA NTOWN REA LTY, INC ., ) d/b/a COLDWELL BANKER, ) ) SHELBY CHANCERY Plaintiffs\Appella nts ) v. ) ) FRANK TIBBS and ) Appeal No. 02A01- 9602-CH-00033 AF SAM EH M. TIB BS, ) ) Defendants\Appellees )

__________________________________________ ______________________ J U D G M E N T

__________________________________________ ______________________
This cause came on t o be regular ly heard an d considered by this Court , and for the reasons stated in the Opi nion of this Cour t, of even date, i t is Ordered:
1. The judgment of the trial court is reversed and the case is remanded f or a new trial. 2. Costs of thi s appeal are taxed against theappellee for w hich execut ion may is sue i f ne cess ary.

ENTER:

W illiam H. I nman, Senior Ju dge

_________________________________ Alan E. Hi ghers, Ju dge

_________________________________ Holly Lillard , Judge