Casey E. Bevans v. Rhonda Burgess

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 13, 2012 Session

CASEY E. BEVANS v. RHONDA BURGESS ET AL.

Appeal from the Chancery Court for Wilson County

No. 10C191 Charles K. Smith, Chancellor

No. M2011-02080-COA-R3-CV - Filed March 19, 2012

Prospective buyer who signed real estate sales contract sued seller, seller’s real estate agent

and broker, and the actual buyers for breach of contract, violation of the Tennessee

Consumer Protection Act, and specific performance. The trial court granted summary

judgment in favor of the defendants on the ground that there was no enforceable contract.

We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.

and R ICHARD H. D INKINS, JJ., joined.

James David Nave, Nashville, Tennessee, for the appellant, Casey E. Bevans.

Teresa Reall Ricks, Nashville, Tennessee, for the appellees, Rhonda Burgess and Southern

Living Realty Partners.

Rebecca A. Martin a/k/a Rebecca Casner, Mt. Juliet, Tennessee, Pro Se.

Billy Adkins, Mt. Juliet, Tennessee, Pro Se.

Virginia Adkins, Mt. Juliet, Tennessee, Pro Se.

OPINION

F ACTUAL AND P ROCEDURAL B ACKGROUND

Rebecca Martin owned real property on Anthony Branch Drive in Mount Juliet,

Tennessee. In 2010, she listed the property for sale with real estate agent Rhonda Burgess

of Southern Living Realty Partners for a price of $159,900.

On April 17, 2010, Casey Bevans, through her real estate agent, Pam G. Salas, made

an offer to buy the property for $147,300. The offer was made on a nine-page “purchase and

sale agreement” form copyrighted by the Tennessee Association of Realtors. The agreement

was made contingent on Bevans’s ability to obtain an FHA loan for 97% of the purchase

price. Moreover, section 17 of the agreement provides that the following “exhibits and/or

addenda attached hereto, listed below, or referenced herein are made a part of this

Agreement: FHA addendum, Buyers Agency Disclosure, Short Sale addendum.” An FHA

loan addendum (signed by Bevans) was attached to Bevans’s offer, but there was no short

sale addendum attached.

On April 24, 2010, Martin rejected Bevans’s initial offer but made a counteroffer to

sell the property for $151,000. Martin’s counteroffer, on a form copyrighted by the

Tennessee Association of Realtors, provides in pertinent part as follows:

The undersigned agree to and accept the Purchase and Sale Agreement with

an offer date of 04/17/10 for the purchase of real property commonly known

as: 427 Anthony Branch Drive, Mount Juliet, TN 37122.

With the following exceptions:

Sales price to be $151,000.

Sale is still subject to lender/3rd party approval.

Metal shelves in the garage do not remain with the property. Metal shelves in

garage to be removed prior to closing along with personal property in the

house.

ALL OTHER TERMS AND CONDITIONS OF THE ORIGINAL

ATTACHED PURCHASE AND SALE AGREEMENT ARE ACCEPTABLE

TO THE UNDERSIGNED. ALL TERMS AND CONDITIONS PROPOSED

IN PREVIOUS COUNTER OFFERS, IF ANY, ARE NOT INCLUDED IN

THIS COUNTER OFFER UNLESS RESTATED HEREIN.

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Martin sent back the original purchase and sale agreement with initialed changes regarding

the purchase price and the metal shelves; she indicated that she accepted Bevans’s offer

“subject to the attached Counter Offer(s).” She also signed and returned the FHA loan

addendum. The same day, April 24, 2010, Bevans indicated her acceptance of the

counteroffer and signed the counteroffer form.

On April 30, 2010, Burgess notified Salas that the $151,000 purchase price would not

generate sufficient funds to pay the seller’s expenses and real estate commissions. On May

4, 2010, Martin submitted another counteroffer at a sale price of $159,900.

Bevans filed suit against Burgess, Southern Living Realty Partners, and Martin on

May 14, 2010, seeking specific performance of the contract and asserting causes of action

for breach of contract and violation of the Tennessee Consumer Protection Act. In

conjunction with the complaint, Bevans filed a notice of lien lis pendens regarding the

subject property. In July 2010, Bevans filed an amended complaint adding Billy and Virginia

Adkins as defendants. According to the amended complaint, Martin sold the property to the

Adkinses on May 15, 2010.

The Adkinses filed a motion for summary judgment on February 10, 2011; Burgess

and Southern Living filed a motion for summary judgment on February 17, 2011. Burgess

and Southern Living submitted a supporting affidavit of Rhonda Burgess, which includes the

following pertinent statements:

The “Purchase and Sale Agreement” contract which [Bevans’s] real estate

agent utilized in this case is the standard Purchase and Sale Agreement

provided to Realtors in Tennessee by the Tennessee Association of Realtors.

The standard “Short Sale Addendum” form provided to Realtors in Tennessee

by the Tennessee Association of Realtors is attached hereto as Exhibit A.

The “Short Sale Addendum” which was specifically incorporating into

[Bevans’s] offer, by Bevans’ own real estate agent, is the standard TAR form

“Short Sale Addendum” attached hereto as Exhibit A. Bevans nor her real

estate agent provided or referred to any short sale addendum other than the

standard TAR form which is used with the standard TAR Purchase and Sale

Agreement utilized by Bevans’ real estate agent.

The TAR short sale agreement contains the following pertinent provision: “This Purchase

and Sale Agreement is also contingent upon . . . the final written agreement of all of the

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Third Party Creditor(s)1 to accept a payoff which is less than the balance due on the

mortgage(s) and/or lien(s) after payment of seller’s expenses and real estate commissions.”

In an order entered on July 29, 2011, the trial court granted both motions for summary

judgment and dismissed all of the plaintiff’s claims. The court determined that the plaintiff

“has not produced and cannot produce evidence of specific facts to establish the existence

of a valid enforceable contract for the sale of real property . . . or even a genuine issue of

material fact as to the validity and enforceability of said contract.” Bevans appeals.

S TANDARD OF R EVIEW

Summary judgment is appropriate when there is no genuine issue of material fact and

the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04.

Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver.

& Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). In reviewing a summary

judgment, this court 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 (Tenn.1997). We consider

the evidence in the light most favorable to the non-moving party and resolve all inferences

in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing

the evidence, we must determine whether factual disputes exist. Byrd v. Hall, 847 S.W.2d

208, 211 (Tenn. 1993). If a factual dispute exists, we must determine whether the fact is

material to the claim or defense upon which the summary judgment is predicated and whether

the disputed fact creates a genuine issue for trial. Id.; Rutherford v. Polar Tank Trailer, Inc.,

978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). To shift the burden of production to the

nonmoving party who bears the burden of proof at trial, the moving party must negate an

element of the opposing party’s claim or “show that the nonmoving party cannot prove an

essential element of the claim at trial.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8–9

(Tenn. 2008).

A NALYSIS

Bevans asserts that the trial court erred in granting summary judgment in favor of the

defendants because there are genuine issues of material fact as to whether the parties entered

into a contract, whether the contract incorporated the terms of the TAR short sale addendum,

and, if so, whether any contingencies of the short sale agreement were not satisfied.

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The short sale addendum previously states that the seller’s lender(s) and/or lien creditor(s) shall be

referred to collectively as “Third Party Creditor(s).”

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To shift the burden of production to Bevans, the defendants had to negate an essential

element of her breach of contract claim or show that she could not prove an essential element

of the claim at trial. Hannan, 270 S.W.3d at 8–9. The defendants argue that they negated the

existence of an enforceable contract, and we agree.

In interpreting a contract, we seek to ascertain the intent of the parties from the

language of the contract; in so doing, we must apply to those words their usual, natural, and

ordinary meaning. Staubach Retail Servs.-Se., LLC v. H.G. Hill Realty Co., 160 S.W.3d 521,

526 (Tenn. 2005). The purchase and sale agreement expressly incorporates the terms of a

short sale agreement. Bevans argues that, since there was no short sale agreement attached

and the parties did not sign a short sale addendum, the short sale addendum did not become

a part of the contract. However, provisions incorporated by reference in a contract need not

be separately signed or appended to the contract to become part of the contract. See

Staubach Retail, 160 S.W.3d at 525; McCall v. Towne Square, Inc., 503 S.W.2d 180, 183

(Tenn. 1973). In such an instance, both writings—the main contract and the incorporated

provisions—should be construed together. Staubach Retail, 160 S.W.3d at 525.

It is clear from the terms of the contract that the parties intended to include short sale

provisions. The contract is a conditional contract–a contract “where the obligation to

perform is dependent upon the happening of some contingency or condition (often referred

to as a condition precedent) which is expressly stated in the contract.” Pate v. C & S of

Tenn., Inc., M2000-02283-COA-R3-CV, 2001 WL 575567, at *3 (Tenn. Ct. App. May 30,

2001). The question then becomes what short sale provisions were intended. As Bevans

made her offer on a TAR purchase and sale agreement, the defendants assert that the standard

TAR short sale addendum was part of their contract, and they have submitted a supporting

affidavit. Bevans disagrees but has not presented any alternative to the TAR short sale

provisions. Without a meeting of the minds concerning the short sale provisions, there is no

enforceable contract. See Inscoe v. Kemper, M1999-00741-COA-R3-CV, 2000 WL

1657844, at *3 (Tenn. Ct. App. Nov. 6, 2000).

We find no error in the trial court’s decision to grant the defendants’ motion for

summary judgment.

C ONCLUSION

We affirm the decision of the trial court. Costs of appeal are assessed against the

appellant, Casey E. Bevans, and execution may issue if necessary.

______________________________

ANDY D. BENNETT, JUDGE

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