### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE February 3, 2

000 Session JERRY LaQUIERE, ET AL 

### . v. DANIEL W. McCOLLUM
Extraordinary Appeal from the Chancery Court for Davidson County

No. 99-962-I Irvin H. Kilcrease, Jr., Chancellor

No. M1999-00926-COA-R10-CV - Filed February 23, 2001

This appeal involves a dispute arising out of the sale of a tract of real property in Antioch. After a survey revealed that the size of the tract was significantly less than the size stated in the contract, the purchaser filed suit in the Chancery Court for Davidson

County seeki

ng both specific

performance of a provision in the contract requiringan adjustment in the purchase price and damages for breach of contract and misrepresentation. The purchaser also filed a lis pendens notice with the Davidson County Regi

ster of Deeds.

The trial court granted the vendor’s motion for summary judgment on the issue of specific performance and ordered the lis pendens notice removed. H owever, t he trial court declined to grant summary judgment on the issue of damag es for breach of contract and misrepresentation. We granted the purchaser’s Tenn. R. App. P. 10 application for an extraordinary appeal. We now affirm the trial court because we concur with its conclusion that the priceadjustment provision in the contract is not clear, definite, and complete. Tenn. R. App. P. 10 Ext raordinary Appeal;

Judgment of the Chanc ery Court Affirm

ed and Remanded

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the cou rt, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined.

Robert J. Notestine, III and Joseph V. Ferr elli, Nashville, Tennessee, for the appellants, Jer r y LaQuiere and Donna LaQuiere.
H.E. Miller, Jr., Ga

llatin, Tennessee

, for the appelle

e, Daniel W. McCollu

m.
OPINION

In October 1997, Daniel McCollum purchased two adjacent tracks of land in Antioch. The larger tract (“Tract 1”) consisted of approximately 15 acres with a house, a barn , and ashed constructed

on it. The smaller tract (“Tract 2”) consisted of approximately 7.5 acres of unimproved property. O

n November 23, 199 8, Mr. McCollum sold most of Tract 2 and one-half of an acre of Tract 1 to the Tennessee Valley Authority (“ TVA”). In the same deed, Mr. McCollum gave the TVA an easement over the remaining parts of both tracts. As best as we can determine from the record provided, Mr. McCollum owned approximately 14.81 acres following this transaction.-2-

In early 1999, Mr. McCollum list ed h is p rop ert y for sal e wi th D ani el & N eese Rea lty & Auction Co. ( “Daniel & Neese”) in Shelbyville. Janice Carlton, the listing agent e mployed by Daniel & Neese was una vailab le betw een Ja nuary 29 and February 4, 1999, but in her absence, Mr. McCollum completed the standard form “listing contract” used by Daniel &

Neese and retur

ned it to Ms. Carlton’s office. Upon receivi ng the completed form, Ms. Carlton’s secretary entered the information from the form contract into the Multiple Listing Service. Shortly after the listing for

Mr. McCollum’s property appeared,Jerry LaQuiere telephoned Daniel & Neese to

inquire about the property. Geraldine Neese, another real estate agent employed by Dan iel & Neese, f

ielded the call. Ms. Neese asserts that she told Mr. LaQuiere during that telephone conversation that the two tracts consisted of approximately 13.5 acres. Mr. L aQuiere denies that Ms. Neese provided him any information about the size of the tracts and asserts that he believed that the property consisted of 22 acres based on the MLS information available to him at the time.

Foll owi ng his conversation with Ms. Neese, Mr. LaQuiere and his wife, Donna L aQuiere, decided to make an offer to purchase the property. Accordingly, Mr. LaQuiere , himself a

real estate broker, prepared a contract of sale that described the property as comprising 2 1.63 acres. The agreement

specified a

purchase price of $295,000 but also provided that “[s]hould a registered land survey determine the actual acreage is greater or less than stated above, the purchase price shall be adjustedaccordingly at the per acre rate as used in a county appraisal.” The LaQuieres signed

the contract on February 3, 1999, and sent it to Ms. Carlton.

Ms. Carlton received the LaQuieres’ contract whe n she ret urned to her office on February 4, 1999. When she contacted Mr. LaQuiere, she discovered that he was alre ad y a ware of Mr. McCollum’s conveyance to the TVA. She informed Mr. L aQuiere that she could not confirm the acreage figure he had included in the contract. Ms. Carlton also arranged

for Messrs. McCollum and LaQuiere to meet on February 7, 1999, to finalize the terms of the purchase.

When Messrs. McCol lum and LaQuiere met on February 7, 1999, Ms. Carlton asked Mr. LaQuiere to explain how he had arrived at the21.63 acrefigure that he h ad included in the c

ontract. Mr. LaQuiere responded that he had obtained the information fr

om county

land records. According to Mr. McCollum, he told Mr. LaQuiere during the meeting that he had sold a portion of his

property to the TVA but tha t he believed that h e still owned appro

ximately 22 ac

res. Mr. McCollum a

lso assertsthat

he relied on Mr. LaQuiere’s calculation that the total amount of land involved was 21.63
acres because Mr. LaQuiere was himself a

real estate broker. Accordingly, Mr. McCollum signed the contract that Mr. LaQuiere had prepared.

Two days later, the LaQuieres enc ountered a TVA surveying crew on the prope rty they thought they had contracted to purchase. The cr ew informed them t hat the TVA had re

cently purchased the property. Mr. LaQuie re insists that this was the first time he became aware that the property he thought he had

purchased had already been purchased by the TVA. Accordingly, Mr. LaQuiere retained C. Michael Moran, a registered land survey or, to determine the actual acreage of the property he had purchased. Mr. Moran’s first survey, completed on February 18, 1999, and based1 Mr. LaQuiere calculated the average va lue of Mr. M cCollum’s remaini ng propert

y by usi ng a Januar

y 1998 appraisal of the property

prepared by the Metropolit an Government’ s Divisi on of Tax Assessments. This appraisal h

ad been complete d prior to the sale of portio ns of t he property to the TVA. It had assigned different values t o various portions of the two

tracts. The total appraised value of Tract 1, excluding the improvements, was $161,509. Mr. LaQuiere arrived at an average of $8,578 per acre by dividing the total appraised value of Tract 1 ($115,800) by the number of acres in the tract according to the appraisal (13.5 acres).
-3- only on the deeds of re

cord, showed tha

t Tract 1 included 13.68 ac res and that Trac

t 2 included 0.2
acres.
On February 23 , 1999, Mr. LaQuiere formally notified Ms. Carlton of the results of Mr. Moran’s survey. In his letter, he invoked the provision in the contract entitling him to

an adjustment in the sales price. He asserted that the average per acre va lue of the remaining property following the sale to TVA was $8,578. Accordingly, he offered to pur chase the property for $8,578 per acre. 1 When Mr. LaQuiere received no response to his letter to Ms. Car

lton, he instructe

d his lawyer

to communicate

directly with Mr. McCollum. The lawyer’s March 8, 1999 letter stated that the closing would occur on March 16, 1999, at the Guaranty Title and Escrow Company in Antioch.

The LaQuieres and a

representative of

Mr. McCollum appeared at the designated place and time for the closing. The

LaQuieres te

ndered $179,984. 31, the purchase price they believed to be appropriate af

ter adjusting fo

r the reduced a

creage. Mr. M

cCollum’s repres

entative had the a

uthority to execute the closing documents onhis behalf, but only if the sales price was $295,000 as reflected in the contract of sale. With the parties at an impasse, the closing did not occur.

On March 15, 1999, Mr. Moran completed his second survey of the property. This time he performed

a more accurate fiel

d survey whi

ch revealed tha

t the tracts conta

ined 14.81 acres

. During the following month, the Division of Tax Assessments completed a new app rai sal of t he p rop ert y. As a r esult of the 1998 sale of a portion of the property to the TVA, the new appraisa l differed substantially

from the former one. In Tract 1, 5 acres were valued at $12,0000 per acre; 5 acres were valuedat $7,500 per acre; and 3.05 acres were val ued at $5,250 pe r acre. The re maining Tract 2 property was valued at

$7,500 per acre. Accordingly, the total value of the combined acrea

ge of both tracts, excluding the buildings, was $121,013.

On April 5, 1999, the LaQuieres sued Mr. McCollumin the Chancery Court for Davidson Cou nty, alleging misrepresentation and breach of contract, and seeking compensatory damag es and specific performance. T

hey also fil

ed a lis pendens notice to inform potential purchasers that they claimeda lien on the property pending the outcome of the litigation. Thereafter, Mr. McCollum filed
a motion for partial

summary judg

ment seeking dism

issal of th e LaQuiere

s’ claim for spec

ific perfo rma nce and removal of the lis pendens notice. On August 6, 1999, the trial court entered an order summarily dis

missing the La

Quieres’ claim forspecific perfo rmance and remo

ving the lis pendens notice. The trial court did not dismiss the LaQuieres’ claim for money damag es for breach of contract and misrepresentation. The LaQuieres applied for a Te nn. R. App. P. 10 extraordinary appeal on August 13, 1999. On August, 27, 1999, after receiving Mr. McCollum’s response, a member of this cou

rt granted the L

aQuieres’ appl

ication for an extr

aordinary appeal.-4- I. S TANDARD OF R EVIEW
The stan dard s for reviewing summary judgments on appeal are well-settled. Summary judgments

are proper

in virtually a

ny civil cas

e that can be resolved on the basis of legal issues alone. Fruge v. Doe , 952 S.W.2d 408, 410 (Tenn. 199 7); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). They are not, however, appropriate when genuine disputes regarding ma

terial facts exist.

Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences re

asonably dr

awn from the undis

puted facts, supp

ort one conclusion

– that the party seeking the summary judgment is entitled to a judgment as a matter of law. White v. Lawrence , 975 S.W.2d 525, 529-30 (Tenn. 1998); Shadrick v. Coker , 963 S.W.2d 726, 731 (Tenn. 1998); Bain v. Wells , 936 S.W .2d 618 , 62 2 (T enn . 19 97) . If a part y d efends aga inst a claim with a motion for summary judgment, the pa

rty asserti ng the claim

may only overcome the motion by establishing the essential elemen

ts of the claim.White v. Meth odist Hosp. South , 844 S.W.2d 642, 645 (Tenn. Ct. App. 1992); Blair v. Allied Maint. Corp. , 756 S.W.2d 267, 270 (Tenn. Ct. App. 1988). Summary judgments enjoy no presumption of correctness on appeal. Nelson v. Martin , 958 S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. B edford County , 938 S.W.2d 408, 412 (Tenn. 1997). Accordingl y, appel late courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown , 955 S.W.2d 49, 50-51 ( Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). We must con side r the evidence in the light most favorable to the non-moving party, and we must resolve all inferenc es in the non-mo ving party's favor. Terry

v. Niblack , 979 S.W.2d 583, 585 (T enn. 1998); Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997). Whenreviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is materi al to the claim
or defense upo n wh ich the summary judgment is predicated and whether the disputed fact c reates
a genuine issue for trial. See Byrd v. Hall , 847 S.W .2d at 214; Rutherford v. Polar Tank Trailer, Inc. , 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

A party may

obtain a summary judgment by demonstrating that the non-moving part y will be unable to prove an essential element of its case. Byrd v. Hall, 847 S.W.2d at 212-13. Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56's requirements, the non-moving party must show that Tenn. R. Civ. P. 56's requirements have not been satisfied. Nelson v, Martin , 958 S.W.2d at 647. One way for a non-moving party to fend off a motion for

summary judgment is to convince the trial court that there are suffici ent fac tual disputes to warrant a trial. The nonmoving party may

carry its b

urden by (1 ) pointing to

evidence either overlooked or ignored by the moving part y that creates a factual dispute, (2) rehabilitating evidence challenge d by the moving part y, (3) producing additional evidencethat creates a material factual dispute, or (4) submitting an affidavit in accordan ce wi th T enn . R. Civ . P. 56. 07 r equ est ing a ddi tio nal tim e for dis cov ery. McCarley v. West Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n.6; DeVore v. Deloitte & Touche , No. 01A01-9602-CH-00073, 1998 WL 68985, at *3 (Tenn. Ct. App. Feb. 20, 1998) (No Tenn. R. App. P. 11 application filed).2 Mr. Moran testified that in other states, such as Georgia, a “r egistered land survey” is a survey reduced t

o plat form that satisfies re cording re quiremen ts. -5- II. T HE L A Q UIERES ’ S PECIFI C P ERFORMANCE C LAIM
The LaQu ieres ass ert that the trial court erred by granting Mr. Mc Collum’s summary judgment motion on the issue of specific performance and seek a reversal of the order to

remove the lis pendens notice. Our decision regarding the summary judgment will also determine whether the trial court correctly ordered the removal of the lis pendens notice. If the LaQuieres a

re entitled to specific performance, lis pendens is necessary to warn potential purchasers of the property. I

f not, the LaQuieres are only entitled to damag es, if anything, from

Mr. McCollum. In that case , there is no need to warn purchasers. With this in mind, we turn to the issue of specific performance. Specific performance is an equitable remed y. Mille r v. Resha , 820 S.W.2d 357, 360-61 (Tenn. 1991); Lane v. Associated Hou s. Developers , 767 S.W.2d 640, 643 (Tenn. Ct. App. 1988); Owens v. Church , 675 S.W.2d 178, 185 (Tenn. Ct. App. 1984). It is available only when the remedy at law is inadequate. Williamson Count y Broad. Co. v. Intermedia Partne rs , 987 S.W.2d 550, 554 (Tenn. Ct. App. 1998). Because a decision to grant specific performance depends he avily upon the facts of each case, granting specific performance lies within the trial c ourt’s sound discretion. McGaugh v. Galbreath , 996 S.W.2d 186, 191(T enn. Ct. App. 1998) ; Inman v. Union Planters Nat’l Bank , 634 S.W.2d 270, 274 (Tenn. Ct. App. 1982). How ever, a court ma

y not gran

t specif i c performance

unless the contract is clear, definite, complete, and free from any suspicion of fraud or unfairness. McGaugh v. Galbreath , 996 S.W.2d at 191; Estate of Sinclair v. Keith-Sinclair Co. , 894 S.W.2d 747, 750 (Tenn. Ct. App. 1994); GRW Enters., I nc. v. Davis , 797 S.W.2d 606, 614 (Tenn. Ct. App. 1990); Ryan v. Stanger Inv. Co. , 620 S.W.2d 505, 510 (Tenn. Ct. App. 1981).

The tri al c our t co rrec tly grant ed Mr. McCollum’s defensive summary judgment motion because the LaQuier

es failed to an es

tablish an essentia

l e lem ent of their claim for specific performance

– that the contract

is clear, definite and complete. While several ambiguities exist in the contract, we w ill focus on the two that cause us the most consternation. First, the contract provide s for a reduction in the purchase price of the property if a “registered land survey” reve a l s that the property is more or less than the 21.63 acres stipulat ed in the contract. Registered land
sur veys are not used in Tennessee, 2 andthe contract’s use of this term creates confusion as to what type of survey is acce

ptable.
Second, the contract

provides for

an adjustment in the per acre price of the property in the event that the tr act is less than 21.63 acres. However, the contract’s method for determining the amount of the per acre ad

justment is unclear

. The contract c

alls for adjusting the

price accordin

g to “county appraisal” values. However, the c ontract does not pre scribe which “county appraisal” values to use. For example,

do we look to

the actual appra

ised value of eac

h of the missing ac

res, or should
we look to an a verage per acre appraised value? In his February 23, 1999 letter, Mr. LaQuiere opted for the latter without explaining why. If we follow Mr. LaQuiere’s lead and use an average per acre value, which averag

e should we use? Mr. L

aQuiere’s Feb

ruary 23, 1 999 lett

e r partially demonstrates this problemby sh owing two equally viable average per acre appraised values – (1) that of3 Mr. LaQuiere’s let ter also ment

ioned that

Mr. McCollum received an average pr ice of appr

oximatel y $13,000 per acr e from h is sa le to t he TVA.
-6- surrounding properties or (2) that of Tract 1. 3 Other possible average per acre appraised

values could be that of Tract 2, that of

both tracts,or that of both tra cts combined with th

e surrounding pr

operties.

This confusion is

compounded by the contract’s failure to specify whether to use the 1998 appraisal before the sale to the TVA or the 1999 appraisal after the sale to the TVA. Equally plausible interpretations of the contract would permit use of the most recent appraisal existing (1) when the parties signed the contract (the 19 98 appraisal); (2) when the alleged breach of contract occurred (the 1998 appraisal); (3) when the LaQuieres filed suit (the 1999 appraisal); or ( 4) when the trial court conducted the summary judgment hearing (the 1999 appraisal).

Our choice of which appraisal to use affects the average per acre value. The 1998 appraisal values five acres in Tract 2 at $8,000 per acre, and 3.13 acres at $1,800 per

acre. According to the 1999 appraisal, the sale to theTVA left one acr e inTract 2, worth $7,500. The averag e will also be affe cte d by the fa ct that the 1999 appraisal values less land than the 1998 appraisal, thereby reducing the denominator. B ecause the acres sold to the TVA differ in value from the acres retained, the change in the nu

merator (the sum o

f the actual valu

es per acre) is

not precisely

proportionate to the change in the denominator.

These contractual ambi guities make it impossible to grant specific performance. Even assuming that a survey carried out by Mr. Mor an, a registered surveyor, qualifies as a “ registered land survey” un

der the contrac

t, we have no way

to determine what

per acre adjust

ment in price the parties agreed to. Without knowing this, the trial court could not order Mr. McCollum to transfer the property to

Mr. LaQuier

e according to

the terms of the co

ntract. We hold

that the trial court did notabuse its discretion in refusing to grant specific performance, and that it correc tly ordered the removal of the lis pendens notice.

IV.

We affirm the judg

ment dismissing the LaQuieres’ specific performance c laim and removing the lis pendens notice and remand the case to the trial court for whatever further proceedings may be required. We also tax the costs of this appeal to Jerry and Donna LaQuiere and their sure ty for which execution, if necessary, may issue.

______________________________ WILLIA M C. KOCH, JR., JUDGE