### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE N ove mb er

2, 200 9 S es sio n
CHA RLO TTE B RA NS ON v. JOY CE FITZ GER ALD , d /b/a REA LTY EXE CU TIVE S OF KINGS TON
Appeal from t he Chancery Court for R oane County No. 15494 Frank V. Williams, III, Ch ancellor

No. E2008-02775-COA- R3-CV - FILED DECEMBER 4, 2009

Cha rl ott e Br a ns on (“ Pla int if

f” ) s ue d J oy ce Fitz ge ra ld, d/b /a Re a lty Ex e c uti ve s o f King sto n w ith rega rd to rea l estate c ommissi ons for seve ral spec ific transa ctions. After a trial, t h e T ri al C ourt enter ed an or der f

inding and holding, int e r a lia , th a t Plaintif f w a s e nti tle d to a jud gme nt a ga ins t Ms

. Fitz ge ra ld f

or the c omm iss ion s o n th re e of the tr ans actio ns . M s. Fitz ge ra ld a pp e a ls t o th is C ou rt

. W e a ff ir m.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt of th e Cha nc e r y C our t A ff ir me d; Case Re manded

D. M I CHAEL S W I NEY , J., delivere d the opi nion of the c ourt, in which H ER S CHEL P. F R ANKS , P.J., and C H A RL ES D. S US ANO , J R ., J., joined.

He a the r G . A nd e rs on , K no xv ill e , T e nn e sse e fo r the Ap pe lla nt , Jo yce Fitz ge ra ld, d/b /a Re a lty Exec utives of Kingston.

Jack H . McPherson, Jr., Kingston, Tennessee for the A ppellee, Cha rlotte Branson.

OP IN ION-2- Bac kgr ound

Plaintiff is a rea l estate broke r. She was an aff iliate broker from 1995 to 2000, and since 2000 ha s been a

broker . At the time o f t ri al, Plaintiff owned ERA Exe cutive Choice Rea l Estate, which she started in Marc h of 2005. Prior to sta rting her own company, Plaintiff wor ked as an af filiate broke r or sa les associate for Re alty Exec utives of Kingston (“Rea lty Executives”)

. De fe nd a nt J oy c e Fitz ge ra ld w a s th e princ ipa l bro ker for Re a lty Ex e c uti ve s. Pla int if f l e ft Re a lty Ex e c uti ve s in Fe br

ua ry of 20 05 a nd la te r fi le d thi s la ws uit se e kin g c omm iss ion s o n s e ve ra l sp e c if ic tr a ns a c tio ns ide nti fi e d inPla int if f’ s Co mpl a int

a s th e Ha

rt fo rdVi lla ge W a y ( “ Ha

rtf or d” ), Dy lli s Road (“D yllis”), River View Lane (“River View” ), Pin Oak Road (“ Pin Oak”), Squaw Valley Road (“Squaw Valley” ), Anglew ood Drive ( “Angl ewood” ), and Pine Ridge Road (“ Pine Ridge”) transac tions. The case proce eded to tria l without a jury.

Pla int if f t e sti fi e d at tria l th at

sh e ha d a writt e n in de pe nd e nt c on tr a c tor a gr e e me nt w ith Realty Exec utives in 2000, 2002, and 2003. Plaintiff co u l d n ot rec all having such a written agre ement with Realty Exec utives for 2001. The independe nt contrac tor agre ement betwe en Pla int if f andRe a lty Ex e c uti ve s f or 20 03 /20 04 pr ov ide d, in p e rt ine nt p art :

Effe ctive date s of Agre ement: 2/23/03 to 2/23/04
Parties to the agr eeme nt: Realty Executives of Kingston and [Plaintiff]
The following commission plan will remain in eff ect f or the dates stated above

. The a gent will r ece ive 100% of all commissions ea rned during the eff

ective dates of thi s a gr e e me nt. Th e re wi ll b e no fr a nc his e fe e

. As so c ia te ma y do re a l e state bu sin e ss
as an a gent with Realty Exec utives of Kingston in excha nge for the following:
$350 per month off

ice a ssociation fee $350 proce ssing fee pe r transa ction
Ag en t will be billed a minimum of 12 processing fe es during the ye ar. I n order to be eligible to pa

rticipate in 100% progra m f or the fo l l o wi n g y ear , agent will do a minimum of 2 0 t ra n sactions for the dates stated a bove. On commissions l ess than $1,000, agent will only be billed ha lf a proc essing fee ($175.00).

Under the independe nt contra ctor agree ment, Plaintiff also was re quired to pay f or items such as he r own sign fra mes, long-distance telephone c alls, advertising, an answering service
, and a website fe e. Plaintiff testified that she wa s not prese nted wit h a proposed independe nt contrac tor agre ement for 20 04 /20 05 un til a ft e r s he ha d le ft Re a lty Ex e c uti ve s. Th e pa rt ie s, ho we ve r, c on tin ue d to op e rate in the same ma nner during 2004 as they had during 2003.

In Februa ry of 2005, Ms. Fitzgera ld signed a T en n essee Real Estate Commission Form 1 (“ T. R.E .C. Form 1" ) f or re le a se of

lic e ns e in o rd e r t o r e le a se Pla int if f’ s li c e ns e fr om R e a lty Exec utives to allow Plainti ff to wor k elsewhe re. Ms. Fitz g er al d s i g n ed the T.R.E.C. Form 1 on-3-

February 24, 2005, and then c rossed out this date, inserte d the date of F eb ru ar y 27, 2005, and initialed the form nea

r the ne w date. Ms. Fitzger ald explained that she m arke d through the date of Fe br ua ry 24 on the T. R.E .C. Form 1 b e c aus e Re a lty Ex e c uti ve s h a d a sk e d Pl a int if f t o c ome in t o sign the form, but Plaintiff did not come in until F ebrua ry 27. Plaintiff rec eived the T .R.E.C. F orm 1 f ro m Re a lty Ex e c uti ve s o n Fe br ua ry 28 , a ndse nt i t to the Re a l E state Com mis sio n inNa sh vil le to transfe r her

license to he r new firm. She was notified on Marc h 7, 2005 that her license had bee n transfe rre d.

Plaintiff moved her furniture and persona l items from Realty Exec utives’ office on February 27, 2005, which wa s a Sunday. Plaintiff testified that she ca lled Ms. Fit zger ald and a sked to talk to her and w as t o l d to come to the off ice a fter 5:00 on Febr

uary 28, w hich Plaintiff did. Pla int if f t e sti fi e d tha t sh e tol d M s. Fitz ge ra ld that sh e ha d a lis tin g f or a re la tiv e a nda sk e d if

Re a lty Ex e c uti ve s w ou ld r e le a se that li st in g and Ms. Fitz ge ra ld a gr e e d to do so . Pl a int if f a lso tol d M s. Fitz ge ra ld that sh e wa s in the pr oc e ss o f n e go tiatin g o n th e Riv e r V ie w p ro pe rty a nda sk e d if Re a lty Exec utives would allow her to c ontinue to negotiate. Plaintif f t es tified that Ms. Fit zger ald gave Pla int if f p e rm iss ion to do so. Pla int if f al so a sk e d if she wo uld be pa id f or Riv e rv ie w andstate d M s. Fitzgerald told her “ yes.”

Plaintiff testified that she wa s actively wor king on the River View transac tion at the t i m e she rece ived the T.R.E.C. Form 1 from Realty Exec utives. Plainti ff listed the River V iew property f rom June 7, 2004 to A pril 31, 2005. Plaintiff te stified that the seller of the Rive r V iew pr op e rty w a s H e idi Sul liv a n. Af te r sh e lis te d the Riv e r Vi e w pr op e rty, Pla int if f a dv e rt ise d it , p a id for the advertising, showed the property, and coordinated having other agents sh o w t h e p roperty. Pla int if f r e c e ive d in qu ir ie s abo ut the Riv e r Vie w pr op e rty fr om an a ge nt in Oak Ridg e a ndon e in Sweetwater.

Plaintiff testified t hat t he offer for R iver View was signed on Marc h 2 in Sweetwate r, Te nn e s s e e a n d w a s f

a x e d t o P l a i n t i f

f

. P l a i n t i f

f t o o k a c o p y o f t h e c o n tr a c t t o R e a l t y Ex e c uti ve s. Pla int if f t e sti fi e d th a t sh e me t th e pe op le a t th e Riv e r Vi e w p ro pe rty s o th a t a ho me ins pe c tio n c ou ld be conduc ted. Afte r the home inspection, Plaintiff participated in further negotiations on behalf of the seller be cause “[t]he seaw all had broke n ....” The tra nsaction on River Vie w closed in Mar ch of 2005 in Swe etwate r, and Plaintiff attended the closing. Plainti ff r ece ived the commission chec k for $12,175.00 at the closing and called Realty Exec utives to make ar range ments for someone from Realty Exec utives to pick up the che ck. Plaintiff neve r wa s paid an y t h i n g for the River View transac tion.

Plaintiff testified that the Hartford prope rty was one of P l ai ntiff’s listings and a contra ct was signed on Febr uary 22, 2005. The Hartford tra nsaction closed in Marc h of 2005 and Pla int if f atte nd e d the c los ing a nd re c e ive d the c omm iss ion c he c k. She the n took the c he c k to Re a lty Ex e c uti ve s.

Pla int if

f t e sti fi e d th at th e Dy lli s tr a ns a c tio n w a s o ne of he r b uy e r t

rans a c tio ns

. Plaintiff made an of

fer on behalf

of her buy er an d s ec ured a

contra ct in February of 2005. The trans a c ti o n c lo s e d inM ar c h o f 2 0 0 5

. Pl a in ti f

f a tt e n d e d th e c lo s in g a n d r e c e iv e d th e c o mm is s ion

c he c k. Pla int if

f the n d e liv e re d th e c omm iss ionc he c k a ndfi le to R e a lty Ex e c uti ve s.-4- Fr o m t h e commissions on the Hartf ord and D yllis properties Realty Exec utives deducte d for twenty transac tions for the year and a $250 proce ssing f ee. Plaintiff testified that she

ne ve r b e fore ha d s e e n th is p ro c e ssi ng fe e . Pl a int if f t e sti fi e d th a t sh e didno t kn ow that sh e ha d to pay for twenty transa ctions. Her understanding wa s that she was r equire d to do twenty transac tions in the previous yea

r, 2003/2004, which she ha d done. Plaintif f wa s paid only $65 for both the Ha rt fo rda ndDy lli s tr a ns a c tio ns

.

Plaintiff explained that Ja mie Russell was a friend to whom Plaintiff had shown property and who eve ntually became P laintiff’s assistant. Plaintiff enc ourage d Ms. Russell t o get her r eal e state license and bec ome a pa rt of Plaintiff’s tea m. Ms. Russell worke d with Plaintiff on the Squaw Va lley and Pin Oak tra nsactions as Plaintiff’s licensed assistant. Plaintiff testified that sh e ha d an a gr e e me nt w ith Ms. Rus se ll that Ms. Ru sse ll w ou ld w or k w ithPla int if

f’ s c us tom e rs on ly

a ndMs. Ru sse ll w ou ld r e c e ive 60 % o f the c omm iss iona ndPla int if f w ou ld r e c e ive 40 %. Re a lty Ex e c uti ve s, ho we ve r, pa id Ms. Rus se ll 6 0% a ndke pt the oth e r 4 0% fo r the Squ a w V a lle y a ndPin Oa k tr a ns a c tio ns

.

Pla int if f t e sti fi ed tha t f

or bo th the An gle wo oda ndPin e Rid ge tr a ns a c tio ns , M s. Russell rece ived 60% and Plaintiff r ece ived 40%. When asked if she had bee n paid in this manner wi th r e ga rdto t rans a c tio ns inv olv ing Ms. Rus se ll a ny oth e r t ime s, Pla int if f r e sp on de d: “ Th a t’ s a ll [Ms. Russell] had eve r done. She w as a ne w age nt.”

When a sked, Plaintiff admitted that if an affiliate broker leaves a firm t he listings st ay with the firm unless t hey are release d. Plaintiff did not ask R ealty Executives t o rele ase the River View listing to her. She explaine d: “Because we wer e in negotiation with it a n d I felt like it was only fair f

or [Rea lty Executives] to make some monies o n t h at , too. I know it was only three hundred and fifty dollars but it was still, it was still the list ing that was there at the compa ny.”

Jamie Russell testified t hat t he conf irmation of age ncy status shee t for Pin Oak has Ms. Rus se ll l ist e d a s th e a ge nt. Th e Squ a w V a lle y c on fi rm a tio n o f a ge nc y s ta tus sh e e t a lso lis ts M s. Rus se ll a s th e a ge nt.

Curtis F itzgera ld, the retire d co-ow ner of R ea l t y E xecutives, te stified at trial. Mr. Fitz ge ra ld o wn e d Re a lty Ex e c uti ve s alo ng with h is w if e , J oy c e Fitz ge ra ld. He wa s li c e ns e d a s a broker befor e he r etired his license approximate ly six months befor e trial. Mr. Fitzger ald testified that Ms. Russell i s a new agent and all new a gents are under a sixty/forty split plan for the first yea r. Mr. Fitzgera ld testified that he did deviate from this plan with Ms. Russell on a couple of transac tions a nd stated: “I guess I was brain dead that day beca use there was t wo t ransa ctions inv olv e d a ndI a gr e e d to c los e the m ona on e -t ime de a l a nd I did n’ t ke e p a ny mon e y a t a ll f or Re a lty Exec utives. I simply spli t the money betwe en [Plaintiff] and [Ms. Russell], sixty-forty.” Those two transac tions were the Pine Ridge and the Anglewood transactions. Realty Exec utives did not keep a tra nsaction fe e on those tra nsactions. Mr. Fitzgerald testified that he did not have any agre ement to pay Plaintiff and Ms. Russell the split commission for all of Ms. Russell’s transac tions and stated that he told Plaintiff and Ms. Russell thi s more than onc e. Whe n asked w hy he distributed those two tr a ns a c tio ns a ga ins t w hat he wo uldno rm a lly do , M r. Fitz ge ra ld r e pli e d:-5-

W e ll, it ha d be e n a

tim e sin c e the y w e re c los e d a ndI h a d - - I ’m su pp os e d to ge t my
escr ow funds straightene d out within three days. I t had transf err ed t o i t s proper
acc ount and, if I rec all, it ha d been about two wee ks or something like this a nd we couldn’t get pe ople in f

or any kind of

an agr eeme nt so I just went ahea d and close d it o ut.

W he n a sk e d to c la

ri fy wh o h e me a nt w he n h e sa id that he “ c ou ldn ’t ge t pe op le in, ” Mr . Fi tz ge ra ld stated: “I’ m talking about [Ms. Russell].”

Mr. Fitzgera ld te stified that Plaintiff was on the hundre d perc ent plan whe re she had to have a m inimum of t wenty transactions within a contract year. He stated that Plaintiff’s c ontrac t year was fr om February 23, 2004 to Febr uary 23, 2 0 0 5 “[ a]nd then in ’05 you would start a ne w ye ar. So, sh e pic ke d u p h e r - - andsig ne d h e r [ T. R.E .C. Form 1 tr a ns fe r] do c ume nt o n th e 27 , s o th I consider ed it a new year .” P laintiff di d not sign a contract for 2004/2005. Mr. Fitzgera ld testified that Realty Exec utives put a contra ct in Plaintiff’s mailbox and also left one on her de sk, but Pl aintiff

never signed the contra ct.

Mr . Fi tz gerald tes tifie d th a t th e tot a l c omm iss ion s f or the Ha rt fo rda ndDy lli s transac tions were $7,315 and out of that Plaintiff w as paid only $65. When asked how he ar rived at that number, Mr . Fitzgerald testified: “ The twe nty transa ct i o n s for the ye ar, w hich is seven thousa n d dollars, and a

two hundred and fifty dollar proc essing fee . Because I ha ndled them together it wa s one proce ssing f ee for both of them.” Mr. Fitzger ald explaine d that he cha rged the $250 proce ssing fee be cause it required mor e wor k and moretime b ec ause the agent wa sn’t there “to che ck all the doc uments and make sure the y ’r e t h er e for audit rea sons and make sur e all the numbers ar e cor

rec t and just, genera lly, it t akes time to make sure e verything is there .” He admitted that th e c on tr a c ts f

or the Ha rt fo rda ndDy lli s tr a ns a c tio ns we re sig ned befo re P lain tif f l e ft Re a lty Exec utives, which wa s befor e the e nd of the c ontrac t year , but stated that the c ommissi on was e arne d “[w ]hen it closed.” He state d: “A transaction i s not complete until you get t he money. Now , that is the way our of

fice operates.”
Mr. Fitzgera ld testified that Ms. Russell was t h e age nt for the Pin Oak a nd Squaw Va lle y tr a ns a c tio ns

. He a lso te sti fi e d that Ms. Rus se ll ha nd le d e ve ry thi ng on tho se tw o tr a ns a c tio ns

.

Mr. Fitzgera ld stated that the contra ct date for the River View transac tion wa s after Plaintiff left Realty Exec utives, and he did not pay Plai n t i ff a ny commission for this transaction. He state d: “she wa s not - - didn’t have a valid license to prac tice during that period when the contra ct
wa s a pp ro ve d, wh e n th e c on tr a c t w a s si gn e d; andit w a s o ur lis tin g. It

wa s R eal ty Ex e c uti ve s’ listi ng.” Mr. Fitzger ald testified that h e n ev er told Plaintiff that she could go ahead and close the River View transac tion and would be paid. He admitted that he did not know how the signed contra ct for River Vi ew got to R ealty Exe cutives’ of fice . He a lso did not know if Pl aintiff wa s involved in negotiating the River View c ontrac t. Mr. Fitzgerald a dmitted that he did not know if a ho me ins pe c tio n w a s d on e on Riv e r V ie w, a ndthat ne ith e r h e no r h is wife att end ed any ho me inspection for River

View. Further , Mr. Fitzgera ld did not know if there was a p ro b l em with the Riv e r V ie w s e a wa ll a ft e r a ho me ins pe c tio n. He a dmi tte d th a t Plai nt if f andMs. Fitz ge ra ld b oth attended the River View c losing.-6- Jo yc eA nn Fitz ge ra ld t e sti fi e d th a t sh e ha s b e e n w ithhe r b us ine ss, Re a lty Ex e c uti ve s, fo r a pp ro xim a te ly thirte e n y e ars a ndthat sh e is the pri nci pl e br ok e r. She te sti fi e d th a t Re a lty Exec utives never

agre ed to the ar

range ment that Plaintiff had with Ms. Russell and that Plaintiff wa s inf orme d o f this

.

Ms. Fitz ge ra ld s ta te d th a t sh e ne ve r ga ve Pla int if f pe rm iss ion to g o ahe a d a ndc los e the Riv e r V ie w t

rans a c tio n andne ve r a gr e e d to pay Pl a int if f f or thi s tr a ns a c tio n. Ms. Fitz ge ra ld te sti fi e d tha t she ha s all ow e d othe r ag e nts wh o ha ve le ft Re a lty Ex e c uti ve s to clo se tr a ns a c tio ns if the contra ct had be en exe cuted prior to the agent’s leaving and admitted that in such a case the age nt would be paid f

or the tra nsaction.

Ms. Fit zger ald was asked if typica lly Realty Executives took the $350 tra nsaction fe e fr om e a c h tr a ns a c tio n a s th e tr a ns a c tio n o c c ur re d o r i f the su m of $7 ,0 00 to c ov e r the fe e s f or tw e nty transac tions was taken f

rom the first commission earned during the contrac t year

. She testified that the $3 50 tr a ns a c tio n f

e e wo uldha ve be e n ta

ke n b y Re a lt y Exe c uti ve s f ro m e a c h tr a ns a c tio n a s it

oc c ur re d f or a br ok e r w ho wa s exp e c te d to re ma in with Re a lty Ex e c uti ve s a ndthat th e fe e fo r t we nty transac tions was taken a s a l ump sum from the Hartford and Dyllis transac tions beca use they kne w that Plaintiff would not be with Realty Executives f or the re mainder of

the contra ct yea

r.

After trial, the Tria l Court entere d its Decre e on August 27, 2008 incorpor ati ng by ref ere nce the Trial C ourt’s findings of fact. The Trial Court specifica lly found and held, int e r a lia :

Fir st o f a ll, de a lin g fir st of a ll with Squa w Va lle y an d Pin Oak; I a gr e e wi th [Ms. Fitzgerald] on those issues, beca use Jamie Russell was lis ted as the a gent on those transa ctions and this agre ement that the plaintiff had with Jamie Russell was not an agr eeme nt that was had w ith Realty E xecutives. A nd if the plaintiff ha s an issue with those two transac tions then it i s, it seems to me, with Jamie Russell and

no t w ithRe a lty Ex e c uti ve s. An d s o, I’ m f ind ing fo r [M s. Fitz ge ra ld] on tho se iss ue s. I tho ug ht I wo ulda dd re ss tho se fi rs t.
My a tti tud e , h ow e ve r, is a lit tle dif fe re nt w ithre ga

rdto the se o ther

thi ng s. First of all, and I wa s trying to get this cle ar in my own mind and trying to think how thi s , th e me c h a n ic s o f h o w th is arr a n g e me n t mi g h t w o rk is w h a t le d me to ask the qu e sti on s a

bo ut h ow the plaint if

f w ou ld ha ve be e n p a id i n th e 20 03 /20 04 tim e fr a me when obviousl y she wa s paid with eac h transac tion that came in all one hundr ed per cent of the commissions and the only thing that Realty Executives would have

rec eived during eac h month would have been for eac h of those transac tions, the three hundred and fifty dollar proc essing fee and the three hundred and fifty dollar off ice fe e , p lus the oth e r m isc e lla ne ou s e xp e ns e s a ndthi ng s o f that so rt . A ndit w a s o nly beca use th e y k n e w th a t s h e w a s le a v in g th e f irm in Fe b ru ar y o f 2 0 0 5 th a t the y
acc eler ated, sha ll we say, he r obligation to pay the three hun d re d an d fifty dollars times twenty, or seve n thousand dollars, for twenty transa ctions.

I would have to say, first of a ll, that it s eems to me that ther e wa s no signed contra ct, that there was simply an operation that had been going on that was unsigned-7-

by the pl aintiff. And i t appea rs t hat t he obli gation to pay - - and not obligation, but the wil lingness of t he defenda nt [sic] to pay that three hundred and fifty dollars on

eac h transac tion was based upon their prior experience and that when you look at the addendum to Exhibit Number One , it seems that - - we ll, if you just read it here :

“The following commis s i o n plan will remain in ef fec t for the dates st ate d ab ov e , th e a ge nt w ill re c e ive on e hu nd re d p e rc e nt o f a ll

c omm iss ion s earn e d d uring the e ff e c tiv e date s o f this a gr e e me nt. Th e re wi ll be no fr a nc his e fe e . A sso c ia te ma y d o r e a l e state bu sin e ss
as an a gent with Realty Ex ecutives of Kingston in exchange for the fo llo wi ng : th re e hu nd re d a nd fi fty do lla rs pe r m on th o ff

ic e a sso c ia te fee and thre e hundre d and fifty dollar proce ssing fee per transaction. Ag e nt w ill be bil le d a

mi ni mu m of (a ndyo u c a n s ub sti tut e ) t we nty pr oc e ssi ng fe e s d uring the ye ar in or de r to be e lig ibl e to p art ic ipate in one hundre d perc ent program for the f ollowing year. A gent will do a minimum of twenty transac tions fo r t h e d at es stated a bove. On commissions l ess than one thousand dollars agent will only be billed half a proce ssing fee of

a hundred and seventy-f

ive dollars. So that in order to b e e li g ib le f

o r th e n e x t y e ar

f o r th e h u n d r e d p e r c e nt pr og ram f

or the fo llo wi ng ye ar a ge nt w ill do a mi ni mum of tw e nty transac tions for the date s stated above .[”] (Reading)
That says to me that in or der to be eligible for this hundre d perc ent program du ring the fo llo wi ng ye ar s he wo uldha ve ha d to ha ve do ne a min imu m of

tw e nty transac tions for the dates stated above. A nd it just , it seems like to me that her right to rec eive the h u n d re d p ercent commission had bee n triggere d by the fa ct that she had done, e ven if we assume that this was a binding agree ment, that she had signed it, that she had consente d to it in some way, had been ear ned by the f

act that she had done her twenty, the minimum of twenty tra nsactions during the pre vious year. T hat entitled her to ge t one hundre d p erc ent less the thre e hundre d and fifty dollar proce ssing fee f

or ea ch tra nsaction.

So, I’m incl ine d to a gr e e wi th the plaint if f o n th e Ha

rt fo rda ndDy lli s transac tions and that it appear s to me also that she wa s the one that ear ned the fee on the Riverview L ane tr ansac tion, even though it was not consummated until af ter she had lef t. She’s the one that e ven later is the one that ca rried out the tr ansac tion, that

a tte nd e d th e c los ing , th a t di d a ll o f the ot her th in gs . Sh e sa id that Ms . Fi tz ge ra ld agre ed to it. Ms. Fitzger ald denies that. I simply think that it’s a matter of looking at who did the wor

k, and in this case the plaintiff did the wor k. She’s entitled to get paid for it and that ’s m o re o r l es s how I’m looking at it. So, I’m finding for the plaint if f a s to the Ha

rt fo rd , D yl li s, and Riv e rv ie w t rans a c tio ns , a ndfo r [ Ms. Fitz ge ra ld] a s to the oth e r t wo pr e vio us ly m e nti on e d tr a ns a c tio ns

.-8-

The Trial Court awar ded Plaintiff a judgment against Ms. Fit zger ald for the commission of $12,172 for Ri ver View, a judgment against Ms. Fit zger ald for the commission of $2,320 for Dyllis, and a judgment against Ms. Fit zger ald for the commission of $4,995 for Ha rtford.

Ms. Fit zger ald filed a

motion to alter or amend. A fter a hearing, the Trial Court grante d t h e m o t i o n to alter or amend in part a nd denied it in part. Spec ifically, the Trial Court amende d its judgm ent to deduct thre e $350 tra nsaction fe es, one f o r ea ch o f the tra nsactions for which Plaintiff was a war ded a judgment, f rom the jud g m en t t o tal amount reduc ing the total jud gme nt b y $ 1, 05 0. Ms. Fitz ge ra ld a pp e a ls t o th is C ou rt

.
Discussion

Al tho ug h no t state d e xa c tly a s su c h, Ms. Fitz ge ra ld raise s on e iss ue on ap peal: wh e the r the Tria l Co urt e rr e d infi nd ing that Plaint if f w a s e ntitl ed to a jud gme nt a ga ins t Ms

. Fitz ge ra ld f

or the c omm iss ion s f

ro m th e Riv e r V ie w, Dy lli s, a ndHa rt fo rdtr a ns a c tio ns

.
Our r e vie w i s de novo up on the re c or d, a c c omp anie d b y a pr e sumpt ion

of c or re c tne ss of the finding s of fa ct of the trial court, unless the prepondera nce of the evidenc e is otherwise . Tenn. R. A pp . P. 13 (d ); Bogan v. Bogan , 60 S.W .3d 721, 727 (Tenn. 2001) . A trial cour t's c onclusions of law ar e subjec t to a de novo revie w with no presumption of cor rec tness. S. Constructors, Inc. v. Loudon Count

y Bd. of Educ. , 58 S.W .3d 706, 710 (Tenn. 2001)

.
As this Court ex plained in Quebe cor Printing Corp. v. L & B Mfg. Co. :

In re solving a dispute conce rning contra ct i nterpre tation, our t ask i s to asce rtain the intention of t h e parties based upon the usua l, natural, a nd ordinary me aning of the contra ct language

. Planter s Gi n Co. v. Fed. Compress & Ware house Co., Inc. , 78 S.W.3d 885, 889-90 (Te nn. 2002)(c iting Guiliano v. C leo, Inc

. , 995 S.W.2d 88, 95 (Tenn. 1999) ). A determination of t he int ention of t he parties “is gene rally treated as a que stion of law bec ause the words of the contra ct are definite and undisputed, and in deciding the legal effec t of t he words, there is no genuine f actua l issue left for a jury to dec ide.” Planters Gin Co.
, 7 8 S .W.3d at 890 ( citing 5 Joseph M. Perillo, Cor bin on Con tra c ts , § 24 .3 0 (r e v. e d. 19 98 )) ; Doe v. HCA He alth Servs. of Tenn., Inc. , 46 S.W.3d 191, 196 (Tenn. 2001)). The centr al tenet of contra ct construc tion is that the intent of the contra cting parties at the time of exec utin g t h e a g re em ent should govern. Planters Gin Co.
, 78 S.W.3d at 890. The parties’ intent is presumed to be that spec ifically expr essed in the body of t he contr act. "In othe r words, the object to be attaine d in construing a contr act is to asce rtain the meaning and intent of the pa rt ie s a s e xp re sse d in the la ng ua ge us e d a nd to giv e e ff e c t to su c h in te nt i f i t do e s no t c on fl ic t wi th a ny ru le of la w, go od mor a ls, or pu bli c po lic y. " Id . (quoting 17 Am. Jur. 2d, Con tra c ts , § 245).
Quebe cor Printing Corp. v. L & B Mfg. Co. , 209 S.W .3d 565, 578 (Tenn. Ct. App. 2006).-9- The e v id e n c e in

th e r e c o r d

o na p p e a l s h o w s , a ll a s f

o un d b y th e T r ia l C o urt, th at Plaintiff had an ag ree ment with Realty Ex ecutives where in, in pertinent par t, if Plainti ff c ompleted twenty or more tr ansac tions wit h i n a contr act year then Plaintiff was e ntitled to participate in the 10 0% pr og ra

m f or the fo llo wi ngy e ar. Th e e vid e nc e fu rt he r s ho ws that Pla int if

f d id c omp le te tw e nty
or mor e tr ans a c tio ns duri ng the y e ar pr ior to the tr ans a c tio ns a t is su e in t his c a se . T he e vid e nc e a lso shows that the par

ties continued to opera

te under the same term s as conta ined within the written contra ct ag ree ment even though Plaintiff had not executed a ne w written a g ree ment for 2004/2005. The e vidence does not pr eponder ate ag ainst these expressed or nece ssarily implied findings by

the Trial Court.
Ms. Fitzger ald ar g ues on ap p ea l, in part, that Plaintiff is not entitl ed to the commissions on t he Har

tford and D yllis t ransa ctions beca use “[Plaintiff] had no veste d rig ht in the commissions as they

wer e not ea

rned until the closing .” The e vidence in the rec ord on appe al shows that th e c on tr a c ts f

or the Hartfo rd and

Dy lli s tr ans a c tio ns we re signe d b e fo re Pla int if f l e ft Re a lty Ex ecutives, but tha t t h e cl o s i ng s for these transac tions did not occur until after Plaintiff had le ft Realty Ex ecutives.

Th e c on tr a c t be tw e e n th e pa rt ie s d oe s n ot s pe c if

ic a lly de fi ne wh e n a

c omm iss ion

is

ea rned. As such, we must apply the “ u s u a l
, n a t u r a l
, a n d o r d i n ar y m e a n i n g ” o f t h e w o r d s to determine the parties’ intent. Id. at 578. Our Supreme Court has a ddresse d the subject of w hen a

re a l e state c omm iss ionis e arn e d f ro m th e pa

rty c ha rg e d w ithpayin g th is f

e e statin g:
[A] br oker, w ho agre es for compensation to procur e a purcha ser of land, has e arne d his c omm iss ion wh e n h e e ff e c ts a va lidwritt e n c on tr a c t f

or sa le , u po n te rm s a ndwi th

a pu rc ha se r a c ceptab le to the ow ne r; ne ith e r the pu rc ha se r’ s r e fu sa l to pe rf orm hi s contra ct on grounds not imputable to the broker ’s fault, nor the voluntary failure of the vendor

to compel him to do so, will defe at the broke r’s c laim for commission.

Dobson & Johnson, Inc . v. Von We iland , 644 S.W.2d 394, 396 (Tenn. 1982)

. Thus, the commission is earne d from the pa

rty who is char ged with paying the commission at the time of “a va lid written contra ct for sa le, upon terms and w ith a purcha ser a cce ptable to the owne r....” Id

.

Ms. Fit zger ald ar gues on appe al, in part, that in prior year s Plaintiff was not paid her commission unti l after

the closing took place and that “[ e]ven u n d er t he contr act whic h governe d [Realty Exe cutives’] and [Plaintiff’s] relationship i n prior y e a r s , th ec o mmis s io n s wer e not gene rate d until the essential commission-generating-closing took place .” Ms. Fit zger ald cites to an unr eporte d Minnesota Court of Appe als ca se in support of her a ssertion that the commission generating event

was p ay m ent t o the employer . This unreporte d Minnesota ca se, howe ver, c lear ly car ries no prec edential we ight, and we de cline to consider it.
Further, Ms. Fitzgera ld has confuse d the issues of when a commis sion is earned and when Plaintiff is e n ti tl e d to b e p a id th e c o mm is s io n

. W h il e it may h a v e b e e n th e c u s to m a nd conduct of

the parties in prior yea

rs for Plaintiff to re ceive her c ommissi on afte r t h e cl o sing took place , this fac t does not govern when t he commis sion actua lly was earne d. Mr. Fitzgera ld asserte d-10-

at trial that the c ommissi ons could not have be en ea rned until afte r closing beca use until then there was no money to pay Plaintiff. He testified: “Atransac tion is not complete until you get the money. No w, t hat is the w a y o ur of fi c e op e rate s. ” Ho we ve r, a s is c le ar f ro m Dobson & Johnson, Inc

. , a commission may be earned prior to the date when it must be pa id. See D obson & Johnson, Inc. , 644 S.W.2d 394. The Fitzgera l d s are mere ly asserting that Plaintiff was not entitled to be pa id the commissions unt il after the closings had taken pla ce. A s the reco rd on appea l reve als that the closings on all of the transa ctions at issue happe ned prior to trial, Realty Exec utives had the money and Plaintiff was, the ref

ore, e ntitled to be paid as per the parties’ established a gree ment.

Ms. Fit zger ald cites us to nothing else which shows that the c ommissi ons were not
earned under

the parties’ contra ct at the time of c ontrac t, but were instead earned at some othe r time. The Trial Court found that Plaintiff had complete d a minimum of twenty transac tions for the prior year . The e vidence does not pr eponder ate against this finding. Given this, unde r Plaintiff’s contra ct with Realty Executives Plaintiff wa s entitled to 100% of the c o m m issions on t hese transactions minus the $350 per tra nsaction fe e. As such, we find no err or in the Tria l Court’s awar ding Plainti ff the commissions for these two transac tions minus the $350.00 transa ction fee for e ach tr ansac tion.

The situation, howeve r, is slightl y differ ent for th e R i ver V iew tra nsaction. The

c on tr a c t f or the Riv e r V ie w t

rans a c tio n w a s n ot s ign e d u nti l a fter P lain tif f l e ft Re a lty Ex e c uti ve s. Plaintiff strongly asserts t hat s he spoke with Ms. Fitzgerald about River View on February 28, 2005 and that Ms. Fitzgera ld gave Plainti ff permission to continue to work on the River View tr ansac tion and that Ms. Fitzgerald also said Plaintiff would be paid f or this transac tion. Ms. F itzgera ld just as st rongly disagre es with Plaintiff’s assertions claiming that she never made these statements. The Tria l Co urt, thu s, wa s re qu ir e d to make a c re dib ili ty de te rm inatio n wi th re ga rd to this iss ue , a ndit clea rly found P laintiff m ore credible with rega rd t o the fa cts surrounding the River V iew tra nsaction.

In We lls v . Te nn e sse e Bd

. o f R e ge nts , our Supreme Court obse rved:
Unlike appel l ate c ourts, trial courts a re a ble to observe wi tne sse s a s th e y te sti fy a ndto a sse ss the ir de me a no r, wh ic h b e st situates trial judges to evaluate witness cr edibility. See State v

. Pr ue tt , 7 88 S.W .2 d 5 59 , 5 61 (T e nn . 1 99 0) ; Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). T hus, trial courts ar e in the most favora

ble position to resolve fac tual disp u t es hinging on

cre dibilit y determi n at i ons. Se e Te nn -T e x Pr op e rti e s v . B ro wne llElectro, Inc

. , 7 78 S.W .2 d 4 23 , 4 25 -2 6 ( Te nn . 1 98 9) ; Mitchell v. Ar c hib ald , 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998). A ccor dingly, appellate courts will not re-e valuate a trial judge’s assessment of witness cre dibilit y absent c l ea r and convinc ing evidence to the contra ry. See H

umphrey v. Dav id Witherspoon, Inc.
, 734 S.W.2d 31 5, 31 5- 16 (T e nn . 1 98 7) ; Bingham v. Dy ersburg Fabrics Co., Inc
., 567 S.W.2d 169, 170 (Tenn. 1978)

.
We lls v . Te nn e sse e Bd

. o f R e ge nts , 9 S.W.3d 779, 783 (Tenn. 1999)

.-11- We give great d ef

er en ce to the T rial Court’s cr edibility determinations, and the evidenc e does not pre ponderate aga inst the Trial Court’s findings with regar d t o t h e R i v er View transac tion. As such, we f ind no error

in the Trial C o urt’s aw arding Plaintiff a judgment for the commission for the River View transac tion less the $350.00 transac tion f ee. We, the ref

ore, a ffirm the Trial Court’s judgment.

Conclusion

The judgment of the Trial C ourt is aff irmed and this cause is re manded to the Trial Cour t for coll e c tio n o f the c os ts b e low . T he c os ts o n a pp e a l are a sse sse d a ga ins t th e Ap pe lla nt, Joyce Fitzger ald, d/b/a Realty Exec utives of Kingston, and her surety.

___________________________________ D. MICHAEL SWI NEY, JUDG E