# FILED September 3, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk JANE H. RALL

S, ) ) Appeal No. Plaintiff-Appellee, ) 01A01-9903-CH-00143 ) v. ) ) Davidson Chancery WILLI AM M. COATS, ) ) Defendant-App

ellant, )

COURT OF APPEALS OF TENNESSEE MIDDLE S ECTION AT NAS HVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVI N H. KILCREASE, JR., CHANCELLOR

RICHARD DANCE, 3200 West End Avenue, Suite 101 Nashville, Tennessee 37203 Attorney for Plaintiff-Appellee LUCIEN D ALE 121 30th Avenue Sou

th P.O. Box 120315 Nashville, Tennessee 37212 Attorney for Defendant-Appellant

VACATED AND REMANDED

HERSCHEL P. FRANKS, JUDGE

CONCUR: GODDA RD, P.J. SWINE Y, J.2 O P I N I O N In this action alleging breach of contract, the Trial Judge g ranted the plaintiff summary judgment for damages for brea ch of contract in the amount of $12,180.24. Defendant has appealed.

The contract in d

ispute was entere

d between the def

endant and W.T. Ral

ls, the late husband o

f plaintiff. The c

ontract provides

in pertinent part: That for in consideration of Ralls releasing Coats of his obligation to convey th

e property

in Davidson County

, Tennessee, to w

it: Lot #46 on the pl

an of Jones and Har

t Subdivision as of re

cord in Book No. 332, Pag

e 43, R.O.D.C., con

taining 3 acres, more or less. A copy of thi

s contract agr

eeing to convey

the same is herew

ith attached and be

comes a part of th

is agreement. Coats does hereby agree that when this property is sold, then that which is received by Coats over and above $46,000.00 to share and share alike with Ralls, or his assignee, after allowing for a pro rata deduction of the cost of sale thereof. Subsequently, on July 28, 1997, defendant Coats sold this property along with two other adjo

ining parcels f

or consideration

of $120,000.00. Th

e total acreag

e in the three parcels, as reflected in the deed convey ing the property, was 5.02 acres more or less. Plaintiff moved for summary judgment and insists that the judgment was appropriate bec

ause the three tr

acts were sold a

s a package fo

r $120,000.00; the p

roperty was unimproved; the property described in the agreeme nt between the defendant and Ralls was 60% of the

total property

sold by the de

fendant to the thir

d party McCa

nn in 1997; and further by simple mathematical calculations, 60% of $120,000.00 results in a figure of $72,000.00 of the consideration for the sale of the lot in question, or $26,000.00 above the $46,000.00 base figure. Further 60% of the cost of the sale of $8,036.50, amounts to $4,821.90, when subtracted from the $26,000.00 overage, leaves a balance of $21,178.10 to be split between the plaintiff and defendant, or $10,589.05, which the Trial Court awarded, p

lus interest. Summary judgment is appropriate when it is shown that there is no3

genuine issue of

any materi

al fact, and the m

oving party

is entitled to a judg

ment as a matter of law. Taylor v. Nashville Banner Publishing Co. , 573 S.W.2d 476 (Tenn. App. 1978). But the Trial Court and this Court, when confronted with a motion for summary judgment, must view the pleadings and evidence in the light most favorable to the opponent of the motion on an issue-by-issue basis. See Wyatt v. Winnebago Ind ustries, Inc., 566 S.W.2d 276 (Tenn. App. 1977).

The defendant insists that there are disputed issues of material fact and summary judgment was inappropriate. In de termining whether there is a genuine issue of material fact, w

e are required

to look at all the ev

idence, take the

strongest legi

timate view of it in favor

of the opponent of

the motion, allow al

l reasonable inf

erences from it in the opponent’s f

avor, and disreg

ard all counterv

ailing evidence. On this standard, if we find a dispute as to any material determinative fact, we are required to deny the motion. In this case, the defendant filed affidavits in opposition to the summary judgment motion. The defendant owner filed an affidavit which we quote in pertinent part: I am a commercial real estate developer and have e arned my living as such for the pa

st twenty (20

) years. I held title to the three above mentioned parcels on July 28, 1907, upon which date I sold said three parcels as a package deal, to McCann Steel Company for a price of $120,000.00. At the time of the sale I was of the opinion that Lot Number 46 was worth considerably less than Lots number 1 and 2 . . . In my opi nion, Lot numbe

r 46 was, at the time

of the sales, wor

th about $45,000.00 whereas lots number 1 and 2 were worth about $37,500.00 each. The opinions of value advanced by the defendant total the $120,000.00 consideration paid for the three parcels. It is well settled in this jurisdiction that lay opinion testimony

regarding th

e value of the witn

ess’s own real pr

operty is ad

missible in evidence. See State ex rel Smith v. Livingston Limestone Co., 547 S.W.2d 942 (Tenn. 1977). Accordingly, the owner and party to the contract has presented material evidence that the value of the parcel in question is such that he would not owe the plaintiff any monies under the formula established in the contract.4 Defendant also contends that he had previously sold the property for $45,000.00 to a third party, but the record shows the sale was conditional and he retained
con tro l ofthe pro pert y.

For the foregoing reasons, we vacate the Trial Court’s g rant of summary judgment to plaintiff and remand with cost of the appeal assessed to plaintiff.

________________________ Hersc hel P. F ranks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ D. Michael Swiney, J.
.