Mathews Partners, LLC, d/b/a NAI Nashville v. Lucianna Lemme

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 8, 2009 Session

MATHEWS PARTNERS, LLC, D/B/A NAI NASHVILLE v. LUCIANNA

LEMME

Appeal from the Chancery Court for Wilson County

No. 06-510 Charles K. Smith, Chancellor

No. M2008-01036-COA-R3-CV - Filed October 2, 2009

Commercial real estate broker brought action against seller of property seeking commission

following the sale of the property to buyers allegedly introduced to the seller by the broker during

the term of the listing agreement. Upon cross motions for summary judgment, the trial court granted

summary judgment to the seller finding the listing agreement was unenforceable because there was

no meeting of the minds and a lack of mutual assent to the terms of the agreement. Broker appeals

and finding error, we reverse and remand.

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

Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J.,

M.S. and FRANK G. CLEMENT , JR., J., joined.

Todd E. Panther, Nashville, Tennessee, for the appellant, Mathews Partners, LLC, d/b/a NAI

Nashville.

Brody N. Kane and Angel P. Kane, Lebanon, Tennessee, for the appellee, Lucianna Lemme.

OPINION

I. Background1

This case stems from the sale of commercial real estate located at 541 Mt. Juliet Road, Mt.

Juliet, Tennessee (“the property”) owned by Ms. Lucianna Lemme, the Appellee. On December 14,

2004, Ms. Lemme signed an Exclusive Sales Listing Agreement with Mathews Partners d/b/a NAI

Nashville (“NAI”), the Appellant, to list and market the property for sale from December 15, 2004

1

Unless otherwise indicated, the recitation of facts is taken from the materials filed in support of or opposition

to the parties’ motions for summary judgment and are not contested.

until midnight on June 30, 2005. The listing agreement set the sales price for the property at

$889,000.00 as well as provided the following terms:

2. Owner agrees to pay Broker a sales commission in accordance with Broker’s

Schedule of Sale Commissions (“the Schedule”), a copy of which is executed by

Owner, attached hereto and hereby made a part hereof. This commission shall be

earned and paid for services rendered if, during the Term: (a) A Purchaser is procured

(by Broker, Owner, or anyone else) who is ready, willing and able to purchase the

Property at the price and on the terms above stated, or on any other price and terms

agreeable to Owner; (b) Any contract for the sale of the Property is entered into by

Owner; or (c) Owner contributes or conveys the Property, or any interest therein, to

a partnership, joint venture, or other business entity, or transfers an interest in any

entity which has an ownership interest in the Property in lieu of a sale of the Property.

...

4. Owner further agrees that Owner shall pay Broker the aforementioned

commission if, within 90 days after the expiration of the Term, the Property is sold

to, or Owner enters into a contract of sale for the Property with, or negotiations

commence and thereafter continue leading to the sale of the Property to anyone

introduced to the property during the period of this exclusive [sic]. Broker agrees to

submit a list of such persons or entities to Owner no later than 15 business days

following the expiration of the Term, provided, however, if Broker has submitted a

written offer then it shall not be necessary to include the offeror’s name on the list.

5. Owner further agrees that in the event a sale of the Property is entered into during

the term, or during the period set forth in Section “4" above with a person or entity

as described therein, owner shall pay broker a sales commission in accordance with

the schedule.

The Schedule of Sale Commissions (“the Schedule”) was also executed by Ms. Lemme on December

14, 2004, and established that NAI’s commission “shall be 6% of the gross sales price.”

The next day, Mr. Hendrixson met with NAI’s marketing department and developed a sales

plan and marketing materials that included printing flyers, posting a large sign at the property, and

listing the property on various marketing web sites. Mr. Hendrixson made several phone calls to

people he thought might be interested in this type of property and showed the property to several

other commercial real estate agents including some of his co-agents at NAI.

During the term of the listing agreement, Mr. Hendrixson procured several potential buyers,

four of whom made written offers. The first offer, received on February 8, 2005, was for

$700,000.00, which was raised to $725,000.00 after Ms. Lemme counter-offered at $850,000.00; the

negotiations, however, did not continue after that. The second offer was received on March 28,

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though the exact price offered is not in the record; Ms. Lemme instructed Mr. Hendrixson to counter-

offer at the full price, $889,000.00.

The last two offers came in June 2005. Mr. Hendrixson received offers from two different

groups of buyers. The first was received on June 21, from a group of dentists, DEJ Partners, for

$750,000.00. The second was received on June 23, from a group of individuals, Steven R. Griffith,

Terry and Jennifer Harris, and Robert Cooper, for $715,000.00. The second group was represented

by an agent, Ms. Rita Anderson of Anderson Commercial Brokerage.

On June 25, Mr. Hendrixson met with Bill Thompson,2 Ms. Lemme’s ex-husband, to discuss

both offers. Mr. Thompson gave Mr. Hendrixson an “information letter” signed by Ms. Lemme,

which Mr. Thompson asked Mr. Hendrixson to send to both DEJ Partners and Ms. Anderson in lieu

of counter-offers. Mr. Hendrixson sent the letters to the prospective buyers and received responses

from both. On June 27, Mr. Hendrixson received a second offer from DEJ Partners for $800,000.00

and a second offer, in the form of a proposed sales contract, from Ms. Anderson’s clients for

$750,000.00. The proposed sales contract prepared by Ms. Anderson listed as the buyers Steven R.

Griffith, Terry and Jennifer Harris, and Robert Cooper and provided for a total brokerage

commission of 6% to be paid by seller, Ms. Lemme, and split equally between the buyer’s agent, Ms.

Anderson, and the seller’s agent, Mr. Hendrixson.3 Mr. Hendrixson gave Mr. Thompson both of the

offers.

Despite the expiration of the listing agreement term on June 30, Mr. Hendrixson continued

to work for the next several days to get a deal done with DEJ Partners, the highest bidder at the time.

Mr. Hendrixson went back to DEJ Partners and asked if they would raise their bid to $835,000.00.

DEJ Partners, however, refused to raise their bid above $800,000.00 and Mr. Thompson refused to

accept anything less than $835,000.00.

On July 6, Mr. Hendrixson went out of town for a previously scheduled family vacation.

Prior to leaving, Mr. Hendrixson met with NAI’s managing broker, Nate Greene, and provided him

with all the relevant information regarding the offers and negotiations around the sale of Ms.

Lemme’s property. When Mr. Thompson learned that Mr. Hendrixson was out of town for a few

days, he became angry and told Mr. Greene that NAI should remove its sign from the property as

well as remove the property from NAI’s listings. When Mr. Hendrixson returned from his trip, Ms.

Anderson contacted him about a third offer from her clients. Mr. Hendrixson told Ms. Anderson that

NAI no longer had the listing for Ms. Lemme’s property and that she should contact Ms. Lemme

directly, which she did.

2

Bill Thompson is Ms. Lemme’s ex-husband and a tenant of hers at the antique store. Ms. Lemme told Mr.

Hendrixson that she was the owner and made all final decisions about the property, but that he could discuss any offers

for the purchase of the property with Mr. Thompson because she often sought his advice.

3

Mr. Thompson told Mr. Hendrixson that Ms. Lemme would not go through with the sale unless the sale netted

$790,000.00. In order to facilitate completion of a sale to the highest bidder, Mr. Hendrixson offered to lower his

commission to 3%.

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On July 14, Ms. Lemme signed a contract to sell the property to Steven R. Griffith, Terry and

Jennifer Harris, and Robert Cooper. The sales contract listed Ms. Anderson as the buyers’ real estate

agent and Ms. Lemme as the seller’s real estate agent; it also provided that the seller was to pay a

3% brokerage commission to Ms. Anderson with no commission for Ms. Lemme.

On August 31, the sale of the property closed. The registered deed stated that the new owner

of the property was Paddock Center LLC. Shortly thereafter, Mr. Hendrixson saw Steven R. Griffith

at a real estate auction in Hermitage, Tennessee and learned from Mr. Griffith that Mr. Griffith’s

group had purchased the property.

On November 21, 2005, NAI filed the present action seeking to enforce the terms of the

listing agreement and collect a 6 percent brokerage commission along with pre-judgment interest and

attorney’s fees as provided for in the agreement. Ms. Lemme’s Answer denied most of the

allegations of the complaint and asserted various affirmative defenses including that the listing

agreement was void and unenforceable, that the buyer of the property “was not the same buyer as

previously presented” by Mr. Hendrixson during the term of the agreement, that NAI breached its

fiduciary duty to Ms. Lemme, and that, if the listing agreement was enforceable and the buyer was

the same, then NAI would be entitled to a 3 percent, not 6 percent, commission. Following

discovery, Ms. Lemme filed a motion for summary judgment, memorandum in support and a

statement of undisputed facts. NAI subsequently filed a response and its own motion for summary

judgment, memorandum in support and its own statement of undisputed facts. Ms. Lemme filed a

response.

Following a hearing on April 2, 2008, the trial court denied NAI’s motion finding that at least

two material facts were in dispute: (1) whether the actual buyers were the same as the buyers

introduced to Ms. Lemme by Mr. Hendrixson in June 2005, and (2) whether, if successful, NAI is

entitled to a commission of 3 or 6 percent. The trial court found with respect to Ms. Lemme’s

motion, however, that no facts were in dispute and granted her motion for summary judgment. The

trial court found that the agreement was unenforceable because neither Mr. Hendrixson nor Ms.

Lemme knew or discussed the terms of the agreement prior to signing it and, as such, there was no

meeting of the minds and no mutual assent to the terms as required to form a binding contract.

NAI appeals contending that the trial court erred in granting Ms. Lemme’s summary

judgment motion and in denying its motion.

II. Analysis

Standard of Review

The issues were resolved in the trial court upon summary judgment. 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). This court must make a fresh determination that the

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requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51

(Tenn. 1977).

Summary judgment is appropriate where a party establishes that there is no genuine issue as

to any material fact and that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04;

Stoval, 113 S.W.3d 721. To be entitled to summary judgment, the moving party must either: (1)

affirmatively negate an essential element of the nonmoving party’s claim; or (2) 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); see also McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at

215 n.5. The Tennessee Supreme Court has explained that “[b]oth methods require something more

than an assertion that the nonmoving party has no evidence,” Hannan, 270 S.W.3d at 8 (citing Byrd,

847 S.W.2d at 215), or presenting evidence that merely “raises doubts about the nonmoving party’s

ability to prove his or her claim.” Id. (citing McCarley, 960 S.W.2d at 588). The moving party must

either produce evidence or refer to evidence previously submitted by the nonmoving party that “tends

to disprove an essential factual claim made by the nonmoving party.” Martin v. Norfolk Southern

Railway Co., 271 S.W.3d 76, 84 (Tenn. 2008); see Blair v. W. Town Mall, 130 S.W.3d 761, 768

(Tenn. 2004). “If the moving party is unable to make the required showing, then its motion for

summary judgment will fail.” Id.; Byrd, 847 S.W.2d at 215.

If, however, “the moving party makes a properly supported motion, then the nonmoving party

is required to produce evidence of specific facts establishing that genuine issues of material fact

exist.” Martin, 271 S.W.3d at 84 (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215).

This may be accomplished by: (1) pointing to evidence establishing material factual disputes that

were over-looked or ignored by the moving party; (2) rehabilitating the evidence attacked by the

moving party; (3) producing additional evidence establishing the existence of a genuine issue for

trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.

R. Civ. P., Rule 56.06. Id. (citing McCarley , 960 S.W.2d at 588; accord Byrd, 847 S.W.2d at 215

n.6.

When reviewing the evidence, we first determine whether factual disputes exist. “A disputed

fact is material if it must be decided in order to resolve the substantive claim or defense at which the

motion is directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). We consider the evidence

in the light most favorable to the non-moving party and resolve all inferences in that party’s favor.

Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruis, 90 S.W.3d 692, 695 (Tenn.

2002). If a factual dispute exists, we then 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. Byrd, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d

102, 104 (Tenn. Ct. App. 1998). A disputed fact presents a genuine issue if “a reasonable jury could

legitimately resolve that fact in favor of one side or the other.” Byrd, 847 S.W.2d at 215. The

nonmoving party’s evidence must be accepted as true, and any doubts concerning the existence of

a genuine issue of material fact shall be resolved in favor of the nonmoving party. McCarley, 960

S.W.2d at 588.

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In this case, both parties filed motions for summary judgment. In her motion for summary

judgment, Ms. Lemme argued that she was entitled to summary judgment, contending that the

following were undisputed material facts and that such facts entitled her to relief as a matter of law:

1. Mr. Hendrixson did not leave a copy of the Exclusive Sales Listing Agreement

with Ms. Lemme.

2. Mr. Hendrixson never reviewed the agreement with her, particularly paragraphs

4 and 5 on which NAI based its lawsuit against Ms. Lemme.

3. NAI waived its right to any commission when Mr. Hendrixson told Ms. Anderson

in mid-July that NAI no longer represented Ms. Lemme and that Ms. Anderson

should take any purchase offers directly to Ms. Lemme.

4. NAI further waived4 its right to any commission when Mr. Hendrixson, knowing

that Ms. Anderson’s sales contract might be signed within the 90 day period provided

for in paragraph 4, “purposefully chose not to advise Ms. Lemme of Paragraphs 4 and

5 of her listing agreement and his intention to seek commission from this sale, if she

accepted this offer.”

(Emphasis in original).

Ms. Lemme further contended in her motion that “by and through the actions and inactions

of Radley Hendrixson, the Plaintiff can no longer claim any commission allegedly due under its

Exclusive Sales Listing Agreement.” Ms. Lemme supported her motion by a statement of

undisputed facts. In response, NAI admitted that there were no material facts in dispute with respect

to Ms. Lemme’s motion, but contended that the undisputed facts did not render the listing agreement

unenforceable or result in a waiver of its commission.

NAI subsequently moved for summary judgment contending that there was no genuine issue

of material fact and that it was entitled to judgment as a matter of law. NAI contended that given

the unambiguous terms of paragraph 4 of the contract and the fact that Ms. Lemme admitted that (1)

NAI provided her with an offer from prospective buyers during the term of the agreement and (2)

within 90 days after the expiration of the agreement, Ms. Lemme entered into a contract for the sale

of the property with the same buyers, NAI was entitled to $50,400.00 (representing 6 percent of the

gross sales price) as commission from the sale of the property plus prejudgment interest and

attorney’s fees, a total of $72,817.30. NAI’s motion was supported by a statement of undisputed

facts as well as the following materials:

1. Deposition of Radley Hendrixson;

2. Deposition of Lucianna Lemme;

4

M s. Lemme asserts that Mr. Hendrixson’s conduct constitutes a waiver of NAI’s commission, however, the

substance of her argument is that NAI is not entitled to its commission because its agent, Mr. Hendrixson, breached his

fiduciary duty to Ms. Lemme as her real estate agent. Consequently, we will address the issue below as a breach of

fiduciary duty rather than “waiver.”

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3. The Plaintiff’s Responses to Defendant’s First Set of Interrogatories;

4. February 16, 2006 affidavit of Nate Greene;

5. Affidavit of Steve Griffith;5

6. Plaintiff’s Response to the Defendant’s Statement of Undisputed Material Facts;

7. Defendant’s Statement of Undisputed Facts;

8. The Plaintiff’s Memorandum of Law in Opposition to the Defendant’s Motion for

Summary Judgment and in Support of its Motion for Summary Judgment; and

9. The entire record.

In response, Ms. Lemme asserted that NAI’s motion should be denied “because there are

genuine issues of material fact in dispute as to the validity and enforceability of the contract entered

into between the parties.” Ms. Lemme contended in her reply brief in opposition to NAI’s summary

judgment motion that NAI’s motion should not be granted because:

[T]here still remain genuine issues of [sic] dispute of the following material facts:

1) Whether agent performed the services he was required to perform under the

Exclusive Sales Listing Agreement in order to earn his commission? [sic] . . .

2) Whether the agent breached certain fiduciary duties owed to Defendant thereby

not entitling him to a commission[.] . . .

3) Whether the Buyers who eventually purchased the property, Paddock Center LLC

were in fact the same Buyers who initially made an offer in June of 2005[.] . . .

4) Whether the contract should be enforced as written due to a mutual mistake of

fact between Plaintiff and Defendant[.] . . .

5) If the Court finds that the contract is valid and enforceable and there has not been

a waiver of commissions, then whether it would be inequitable for Plaintiff to earn

a 6% commission[.] . . .

6) Whether the fact that Radley Hendrixson signed the Exclusive Sales Listing

Agreement as broker although he was not a broker was a fraud voiding the contract[.]

...

7) Whether the failure of Defendant receiving a copy of the contract renders it

unenforceable[.] . . . .

(Emphasis in original).

As a threshold matter, before examining the merits of the parties’ respective motions, we will

examine the enforceability of the listing agreement.

5

For reasons unknown, this document is not in the record.

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Enforceability of the Exclusive Sales Listing Agreement

Ms. Lemme contends that, because neither she nor Mr. Hendrixson discussed, agreed to or

even knew the terms provided for in paragraphs 4 and 5 of the listing agreement at the time they

signed, the agreement is unenforceable. NAI responds that the agreement is binding and enforceable

despite the failure of both Mr. Hendrixson and Ms. Lemme to read the contract prior to signing it

because it was a signed, unambiguous written agreement.

To be enforced, a contract “must result from a meeting of the minds of the parties in mutual

assent to the terms, must be based upon a sufficient consideration, free from fraud or undue

influence, not against public policy and sufficiently definite.” Staubach Retail Services-Southeast,

Inc. v. H.G. Hill Realty Co., 160 S.W.3d 521, 524 (Tenn. 2005) (citing Doe v. HCA Health Servs.

of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). “In determining mutuality of assent, courts must

apply an objective standard based upon the parties’ manifestations.” Id. (citing T.R. Mills

Contractors, Inc. V. WRH Enters., LLC, 93 S.W.3d 861, 866 (Tenn. Ct. App. 2002).

Here, Ms. Lemme, the party to be bound, signed a written agreement and, therefore, we begin

with the presumption that it contained her intentions and that she assented to be bound by those

terms. See Tenn. Code Ann.§ 47-50-112(a)(contracts signed by the party to be bound shall be

enforced as written, subject to statutory and common law defenses); Moody Realty Co., Inc. v.

Huestis, 237 S.W.3d 666, 676 (Tenn. Ct. App. 2007) perm. appeal den. (Aug. 13, 2007). Ms.

Lemme claims, however, that because she and Mr. Hendrixson did not discuss the terms, read the

contract, or otherwise know what the terms in paragraphs 4 and 5 provided that there was no meeting

of the minds or mutual assent and, consequently, no enforceable contract.

Tennessee has strong public policy in favor of upholding contracts. St. Paul Surplus Lines

Ins. Co. v. Bishops Gate Ins. Co., 725 S.W.2d 948, 951 (Tenn. Ct. App. 1986); Ballard v. North

American Life & Casualty, 667 S.W.2d 79, 82 (Tenn. Ct. App. 1983); AmeriGas Propane, Inc. v.

Crook, 844 F.Supp. 379, 390 (M.D. Tenn. 1993). Written contracts would be worthless if the law

allowed a party to enter into a contract and then seek to avoid performance because he or she did not

read the agreement or know its contents. Moody, 237 S.W.3d at 676 (citing Giles v. Allstate Ins. Co.,

871 S.W.2d 154, 157 (Tenn. Ct. App. 1993). Absent fraud or duress, the law generally holds parties

responsible for what they sign. Id.; see Teague Bros. v. Martin & Bayley, Inc., 750 S.W.2d 152, 158

(Tenn. Ct. App. 1987).

In this case, the listing agreement consisted of ten paragraphs on two pages and the

paragraphs at issue, 4 and 5, were on the first page; the agreement also contained a half page

addendum, the Schedule of Sale Commissions, with a separate signature line. Ms. Lemme signed

both the listing agreement and the Schedule. Mr. Hendrixson brought the documents to Ms. Lemme

at the property and, while he did not read them to her or otherwise explain the provisions, he gave

Ms. Lemme the documents, which she took to her office in the back of the property for

approximately 15 to 20 minutes. She returned the documents to Mr. Hendrixson signed and did not

ask him any questions about their contents. Ms. Lemme testified that she “briefly looked at it”

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because “I figured, well, it’s probably the same standard thing that everybody else has. Since I was

a realtor and I had already read the contracts from before, I didn’t bother looking at the 90-day thing

after that, of course. But I figured, hey, he’s a nice guy.”

We find Ms. Lemme’s professed lack of awareness of the terms of the written agreement

irrelevant because, as the party to be bound, she had an obligation to read the agreement before

signing it and is thus charged with the knowledge of the terms therein. Ms. Lemme, a licensed real

estate agent familiar with these types of contracts, had the opportunity to read the listing agreement,

but she chose not to at her own peril. See Moody, 237 S.W.3d at 676 (“One who signs a contract

cannot later plead ignorance of its contents if there was an opportunity to read it before signing.”);

see also Solomon v. First American Nat’l Bank, 774 S.W.2d 935, 943 (Tenn. Ct. App. 1989).

Ms. Lemme argues that, despite the fact that she failed to read it before signing, the

agreement is nevertheless unenforceable because it was the result of a “mutual mistake as neither

she nor Radley Hendrixson knew of the terms or agreed to the terms of Paragraph 4 or 5, before

signing the agreement” and that she “was not negligent as her agent [Mr. Hendrixson] failed to

disclose this provision to her and she never agreed to it.” (Emphasis in original). In support of this

contention Ms. Lemme cites two cases, Pelot, III v. Cakmes, No. E1999-02550-COA-R3-CV, 2000

WL 116046 (Tenn. Ct. App. Jan. 31, 2000), and McNabb v. Gray, No. E2003-02674-COA-R3-CV,

2004 WL 2190966 (Tenn. Ct. App. Sept. 30, 2004). We do not find that either case has applicability

here.

In Pelot, Dr. Pelot sought relief from a written contract that he signed that modified a

previous agreement between the parties. Dr. Cakmes had presented a letter addressed to Dr.

Cakmes’ banker to Dr. Pelot during a busy time of day. Pelot, III v. Cakmes, 2000 WL 116046, at

*5. Dr. Cakmes led Dr. Pelot to believe that the letter was about obtaining a loan and required Dr.

Pelot’s signature as Dr. Cakmes business partner. Id. The two did not discuss the contents of the

letter or whether Dr. Pelot would agree to the modification of their prior agreement that the letter

actually contained. Id. The court found there was “proof that Dr. Cakmes knowingly, or without

belief in its truth, or recklessly, whether it be true or false, made a false representation to Dr. Pelot

that this was a routine letter to his banker about obtaining a loan.” Id. The Pelot court found that

the contract was unenforceable principally because Dr. Cakmes misrepresented the contents of the

contract. Id. Contrary to Pelot, there is nothing in the record here showing that Mr. Hendrixson

misled Ms. Lemme as to the nature or content of the listing agreement or the Schedule or that she

did not have sufficient time to review the documents before signing them.

In McNabb, the court set aside a warranty deed having found that there was “no meeting of

the minds between the parties.” McNabb v. Gray, 2004 WL 2190966, at *3. Crucial to the McNabb

court’s determination, however, was the fact that it was “impossible to ascertain the parties’ duties

to one another under the contract” because there was no consistency between the testimony of the

grantor, the testimony of the grantee or the wording of the deed as to what the terms were supposed

to be. Id. Here, the record does not show that Ms. Lemme and Mr. Hendrixson had agreed on one

set of terms that were then not reflected in the written agreement. There was, in fact, no

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disagreement as to the terms since the terms were not discussed. Mr. Hendrixson presented Ms.

Lemme with NAI’s standard exclusive sales listing agreement, which constituted a written offer.

Ms. Lemme then had a duty to read the document before signing it, the outward manifestation of her

intent to be bound by the terms of the agreement.

We find the Exclusive Sales Listing Agreement to be binding on the parties as written. We

will now examine the merits of the parties’ respective summary judgment motions in light of our

finding the listing agreement enforceable.

Ms. Lemme’s Motion for Summary Judgment

Ms. Lemme moved for summary judgment contending that her motion should be granted

because NAI is not entitled to its commission under the listing agreement due to the conduct of its

agent, Radley Hendrixson. Specifically, Ms. Lemme contended that Mr. Hendrixson waived NAI’s

commission, or, if he did not waive the commission, NAI is nonetheless not entitled to its

commission because Mr. Hendrixson breached his fiduciary duty to Ms. Lemme. NAI does not

dispute any of the facts on which Ms. Lemme bases her motion, but contends that the facts do not

entitle Ms. Lemme to judgment as a matter of law. We will address Ms. Lemme’s arguments in turn.

i. Waiver

Ms. Lemme contends that NAI waived its right to any commission from the sale of the

property by the conduct of its agent, Mr. Hendrixson, when Mr. Hendrixson told Ms. Anderson in

mid-July that NAI no longer listed Ms. Lemme’s property and, as a result, Ms. Anderson should take

any offers she had from her clients directly to Ms. Lemme. NAI contends that such action did not

constitute a waiver of its commission since the agreement had expired by its express terms on June

30, 2005.

Waiver is a “voluntary relinquishment or renunciation of some right, a foregoing or giving

up of some benefit or advantage,” which, but for such waiver, someone would have enjoyed. Baird

v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384, 389 (1942). Waiver “may be

proved by express declaration; or by acts and declarations manifesting an intent and purpose not to

claim the supposed advantage; or by a course of acts and conduct; or by so neglecting and failing to

act, as to induce a belief that it was [the party’s] intention and purpose to waive.” Id. The acts or

course of conduct “must be clear, unequivocal and decisive acts of the party or an act which shows

determination not to have the benefit intended in order to constitute a waiver.” Knoxville Rod &

Bearing, Inc. v. Bettis Corp. of Knoxville, Inc., 672 S.W.2d 203, 208 (Tenn. Ct. App. 1983) (citing

Gitter v. Tenn. Farmers Mut. Ins. Co., 450 S.W.2d 780, 784 (Tenn. Ct. App. 1969)).

Ms. Lemme cites the case of Prudential Botts v. Gupton, 1994 WL 398826 (Tenn. Ct. App.

Aug. 1, 1994), as support for her contention that Mr. Hendrixson waived NAI’s commission by his

conduct. We do not find, however, that Prudential Botts has any applicability to the facts here on

the issue of waiver.

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The Prudential Botts court found that the seller’s broker, Mr. Botts, waived his right to his

brokerage commission under an executed listing agreement when he gave the buyer’s broker

permission, while the listing agreement was still in effect, to take an offer directly to the seller

knowing that the proposed sales contract did not include his commission. Prudential Botts, 1994

WL 398826, at * 4. Critical to the court’s decision was the fact that Mr. Botts knew that the sales

contract did not reflect Botts’ portion of the commission and he knew that the seller would not have

accepted the offer if Botts claimed his commission in the sales contract; consequently, when Mr.

Botts authorized the buyer’s agent to present a sales contract with no commission listed for Botts,

Mr. Botts waived his right to any commission on the sale of the property. Id. at *5.

The primary distinction between this case and Prudential Botts with respect to waiver is the

fact that the listing agreement between NAI and Ms. Lemme had already expired when Mr.

Hendrixson told Ms. Anderson to take her clients’ offer directly to Ms. Lemme in mid-July 2005.

Because the listing agreement had expired and because Ms. Lemme, through Mr. Thompson, had

made it clear to Mr. Hendrixson that they did not want NAI’s continued assistance in the sale of the

property, Mr. Hendrixson was under no obligation to handle or otherwise participate in the offer

extended by Ms. Anderson’s clients. When Ms. Anderson presented the new offer to Mr.

Hendrixson, he merely referred her to Ms. Lemme; this does not constitute a waiver of NAI’s rights

under the listing agreement. See Knoxville Rod & Bearing, Inc., supra.

ii. Breach of Fiduciary Duty

Ms. Lemme also asserts in her motion for summary judgment that NAI is not entitled to its

commission because Mr. Hendrixson breached his fiduciary duty to Ms. Lemme by waiting until

after the closing to inform her that NAI would seek its commission due from the sale of the property.

In Tennessee, real estate brokers stand in a fiduciary relationship with their principals.

Ellison v. Alley, 842 S.W.2d 605, 608 (Tenn. 1992); Youngblood v. Wall, 815 S.W.2d 512, 516

(Tenn. Ct. App. 1991). They have a duty to “refrain from prejudicing their [principals’] interests in

favor of [their] own” and “a duty of honesty, candor and fair dealing to all those with whom [they

deal]....” Parks v. Morris, 914 S.W.2d 545, 550 (Tenn. Ct. App. 1995) (citing Youngblood, 815

S.W.2d at 516). For example, brokers cannot manipulate the documentation of a sale, see

Youngblood, 815 S.W.2d 512, or the timing of a closing to conceal that a substantial profit will

accrue to themselves. See Ellison v. Alley, 842 S.W.2d 615 (Tenn. 1992). By the same token,

however, “[a] landowner who has listed his real estate with a broker cannot avoid a commission by

taking the negotiations out of the hands of the broker after the broker had produced a purchaser.”

Parks v. Morris, 914 S.W.2d 545 (Tenn. Ct. App. 1995) (citing Bryan v. Purnell, 5 Tenn.Civ.App.

623, 628-29 (1914)).

The undisputed record shows that following the expiration of the term of the listing

agreement, Mr. Hendrixson had one conversation with Ms. Anderson at which time she told him that

she had a third offer from her clients that she wished to convey to Ms. Lemme; in response, Mr.

Hendrixson told her that NAI was no longer Ms. Lemme’s broker and that she should, therefore,

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take her clients’ offer directly to Ms. Lemme. The record does not show that Mr. Hendrixson knew

of the amount of the offer or that it was accepted by Ms. Lemme on July 14. The record shows that

he first learned of the sales contract and subsequent sale of the property after it sold.

Ms. Lemme cites Prudential Botts again in support of her argument that Mr. Hendrixson

breached his fiduciary duty to her by not informing her before the closing that he would seek NAI’s

commission under the listing agreement. In Prudential Botts, the court found that Mr. Botts violated

his fiduciary duty to his client by “allow[ing] the sales contract to go forward without any additional

commission listed.” Prudential Botts, 1994 WL 398826, at *6. Unlike in Prudential Botts, the

record here does not show that Mr. Hendrixson saw or otherwise knew what, if any, commission was

listed for NAI in the July sales contract prepared by Ms. Anderson. In fact, Mr. Hendrixson did not

receive a copy of the July sales contract until after the August 31, 2005, closing.

The facts here more closely align with those in Parks v. Morris, 914 S.W.2d 545 (Tenn. Ct.

App. 1995). Parks involved the sale of commercial real estate where the owner, Mr. Morris, was

himself a real estate broker, but chose to employ a local broker, Mr. Parks, to list, market and sell

the property. Mr. Parks found a prospective buyer and informed Mr. Morris of two written offers

he had received. Mr. Parks requested counteroffers from Mr. Morris and made numerous efforts to

contract him; however, Mr. Morris did not respond. Ultimately, Mr. Parks allowed the prospective

buyer’s broker to complete the sale directly with Mr. Morris since Mr. Morris refused to

communicate with Mr. Parks. Once the sale was completed, Mr. Parks sought his commission from

Mr. Morris and a lawsuit ensued. Parks, 914 S.W.2d at 546-47. The Parks court found that the

ultimate sale flowed directly from Mr. Parks’ introduction of the buyer to Mr. Morris and that when

the sale was completed, Mr. Parks had substantially performed his part of the contract and Mr.

Morris had received the promised benefits. Mr. Morris, “therefore, could not refuse to pay the

commission.” Parks, 914 S.W.2d at 549-550.

In its decision, the Parks court rejected Mr. Morris’ reasoning that Mr. Parks should not

receive his commission because he did not remind Mr. Morris or the closing attorney of the agreed

commission or appear at the closing to collect his commission. Id. at 550. The court found that

given the fact that Mr. Morris did not deny that Mr. Parks was his agent and that Mr. Parks had

procured the buyer, Mr. Parks acted consistently with his fiduciary duty to Mr. Morris. The court

reasoned that:

[Mr. Parks], understood that as part of his fiduciary duty to [Mr. Morris] he should

not interfere with the closing simply to collect his commission. [Mr. Parks’] duty was

to provide a buyer to his principal and get the transaction closed. [Mr. Morris], for

his part, may not take over the negotiations with the buyer produced by [Mr. Parks],

cut off all communications with [Mr. Parks], close the deal without telling [Mr.

Parks] and then accuse [Mr. Parks] of violating his fiduciary duty.

Id. at 551.

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In this case, the listing agreement provided that NAI would receive a 6 percent commission

if a sales contract was entered into or the property was sold within 90 days of the expiration of the

listing agreement to a buyer introduced to Ms. Lemme during the term of the listing agreement by

NAI. Mr. Hendrixson procured a group of individuals who were interested in buying the property

in June 2005, during the term of the listing agreement; those same prospective buyers, Steven R.

Griffith, Terry and Jennifer Harris and Robert Cooper, entered into a sales contract to purchase Ms.

Lemme’s property on July 14, 2005, which was within 90 days of the expiration of the listing

agreement. Mr. Hendrixson acted consistently with his fiduciary duty to Ms. Lemme by performing

under the contract – he marketed the property and procured a buyer who entered into a sales contract

with Ms. Lemme. Mr. Hendrixson, therefore, performed his duty under the listing agreement and

we cannot now find that he breached his fiduciary duty by claiming a right granted to him under the

express terms of the listing agreement.

For the above reasons, we find that the trial court erred in granting Ms. Lemme’s motion for

summary judgment.

NAI’s Motion for Summary Judgment

NAI contended in its motion that it was entitled to summary judgment because Mr.

Hendrixson introduced Steven R. Griffith, Terry and Jennifer Harris, and Robert Cooper, to the

property during the term of the listing agreement and that the same individuals signed a sales

contract on July 14, 2005, which was within 90 days of the expiration of the listing agreement and,

consequently, by the express terms of the agreement, NAI should receive a 6 percent commission

as a result.

In support of its motion, NAI presented the listing agreement, which provided in paragraph

4 that Ms. Lemme agreed to pay NAI a 6 percent commission “if, within 90 days after the expiration

of the Term, . . . Owner enters into a contract of sale for the Property with, . . . anyone introduced

to the property during the period of this exclusive” sales listing agreement. NAI also presented the

June 2005 offer prepared by Ms. Anderson listing as the prospective buyers, Steven R. Griffith,

Terry and Jennifer Harris, and Robert Cooper. NAI further presented the July 14, 2005, sales

contract signed by Ms. Lemme as the seller and the same four individuals as the buyers. Finally,

NAI presented the testimony of both Mr. Hendrixson and Ms. Lemme that Mr. Hendrixson

introduced these prospective buyers to Ms. Lemme during the term of the listing agreement. This

evidence showed that Ms. Lemme entered into a contract of sale for the property with persons

introduced to the property by Mr. Hendrixson during the term of the listing agreement within 90 days

of the expiration of the listing agreement; consequently, NAI produced sufficient evidence to prove

its claim that Ms. Lemme owed NAI its commission under the listing agreement.

Having properly supported its motion, the burden of production shifted to Ms. Lemme to

establish a genuine issue of material fact by pointing to evidence overlooked or ignored by NAI or

producing additional evidence. Martin, 271 S.W.3d at 84 (citing McCarley, 960 S.W.2d at 588;

Byrd, 847 S.W.2d at 215). Ms. Lemme responded that summary judgment was inappropriate

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because there were “several material facts in dispute” including (1) whether the eventual buyer of

the property was the same prospective buyer introduced to her by Mr. Hendrixson in June 2005, (2)

if the buyer was the same, whether NAI should receive a 3% instead of 6% commission on the sale,

(3) whether Mr. Hendrixson properly performed his duties under the listing agreement to market and

show the property, (4) whether Mr. Hendrixson breached his fiduciary duties to Ms. Lemme, (5)

whether “[t]he fact that Radley Hendrixson signed the Exclusive Sales Listing Agreement as broker

although he was not a broker was a fraud that voided the contract,” and (6) whether Ms. Lemme’s

“failure to be provided a copy of the contract voided the contract.”

i. Whether the property’s buyer was introduced to the property during the term of the listing

agreement

Ms. Lemme argued that the property was sold to Paddock Center LLC, “a separate legal

entity than the original buyers who presented an offer in June 2005.” In support, Ms. Lemme

presented the warranty deed showing that the buyer of the property was Paddock Center LLC. Ms.

Lemme also pointed to the entire record to show that Paddock Center LLC was not a prospective

buyer during the listing term.

We do not find that Ms. Lemme has carried her burden of production with respect to this

issue. The listing agreement does not require an eventual sale to buyers introduced to the property

during the listing term in order for NAI to be entitled to a commission. Under the express terms of

the listing agreement, NAI was entitled to its commission when Ms. Lemme entered into a “contract

of sale for the property” within 90 days after the expiration of the term “to anyone introduced to the

property during the term....”

The listing agreement expired on June 30, 2005. Prior to June 30, Mr. Hendrixson

introduced the property to and procured an offer from Steven R. Griffith, Terry and Jennifer Harris,

and Robert Cooper. On July 14, 2005, Ms. Lemme entered into a contract of sale for the property

with Steven R. Griffith, Terry and Jennifer Harris, and Robert Cooper. The listing agreement does

not require an eventual sale to these same people, although it also provides for that scenario in

paragraph 5. Thus, to the extent there may be a factual dispute as to whether the actual buyer of the

property was the same group which signed the sales contract, such factual dispute is not material.6

See Byrd v. Hall, 847 S.W.2d at 215 (“A disputed fact is material if it must be decided in order to

resolve the substantive claim or defense at which the motion is directed”). Consequently, we do not

find that there is a genuine issue of material fact for trial and that NAI was entitled, as a matter of

law, to its commission pursuant to paragraph 4 of the listing agreement.

ii. Whether NAI is entitled to a 3 percent or 6 percent commission

6

W hile we do not find it necessary to determine whether Paddock Center LLC or its members were composed

of the same individuals who signed the July contract, we note that there is some circumstantial evidence that there may

be a relationship between Paddock Center LLC and the prospective buyers represented by Ms. Anderson as the address

listed for the buyer of the property on the warranty deed is the same address listed for Steven R. Griffith on the June 2005

proposed sales contract as well as the July 14, 2005, sales contract.

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NAI presented the listing agreement as well as the Schedule of Sale Commissions executed

by Ms. Lemme on December 14, 2004, in support of its contention that it was owed a 6 percent

commission. The Schedule provided, “[a]s to sales of improved real property, Broker’s commission

shall be 6% of the gross sales price.” Having produced sufficient evidence that it was entitled to a

commission under paragraph 4 of the listing agreement and that it was owed a commission of 6

percent on the gross sales price, which in this case was $840,000.00, the burden of production shifted

to Ms. Lemme to establish a genuine issue for trial.

Ms. Lemme responded by pointing to the June 2005 proposed sales contract prepared by Ms.

Anderson on behalf of her clients that listed Mr. Hendrixson’s commission as 3 percent. Ms. Lemme

argued that “if [Mr. Hendrixson] had actually represented [Ms. Lemme] at this closing, at most he

would have earned is 3%.” In support of this contention, Ms. Lemme pointed to the testimony of

Mr. Hendrixson wherein he admitted that if the June 2005 sales contract had been accepted by Ms.

Lemme, NAI would have only received a 3 percent commission.

Ms. Lemme’s evidence does not establish a genuine issue of material fact for trial. The

negotiations associated with the June 2005 proposed sales contract are irrelevant for determining

NAI’s commission due from the sales contract executed on July 14, 2005. Ms. Lemme presents only

a hypothetical scenario suggesting that because Mr. Hendrixson agreed in June to reduce his

commission that he would have done the same in July. Ms. Lemme has not presented or pointed to

evidence showing that Mr. Hendrixson would have agreed to the same commission reduction had

he been involved in the process in July. Consequently, we do not find that there is a genuine issue

for trial as to the correct percentage commission due NAI as a result of the signing of the July 14,

2005, sales contract between Ms. Lemme and Steven R. Griffith, Terry and Jennifer Harris, and

Robert Cooper.

iii. Whether Mr. Hendrixson performed his duties under the listing agreement

Ms. Lemme responded to NAI’s motion that it was entitled to its commission under the

listing agreement by contending that there is a genuine issue for trial as to whether Mr. Hendrixson

performed his duties under the listing agreement such that NAI is entitled to its commission. Ms.

Lemme argued that Mr. Hendrixson did not “properly market or show the property” and, in support,

she pointed to the portion of the listing agreement that requires the Broker to “use its best efforts to

effect a sale.” Ms. Lemme also pointed the testimony of Mr. Hendrixson wherein he answered the

following questions thusly:

Q: How many people from December 15, 2004 until let’s say January 31, 2005 – how

many people did you show this building to?

A: Physically, like meet and show?

Q: yes.

A: None, that I can recall, other than co-workers, co-brokers or co-affiliates brokers

– co-agents, I should say.

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Q: Between January 31, 2005 and March 28th , 2005 when you received this offer

from Hollace McKinley, to whom did you show this property?

A: I don’t have a list. I don’t know.

Q: Did you show it to anybody?

A: I don’t think I had. I don’t think I did. I reservedly say that. I don’t remember.

We do not find that Ms. Lemme has carried her burden of production establishing a genuine

issue for trial. The record shows that the day after Ms. Lemme executed the listing agreement, Mr.

Hendrixson met with NAI’s marketing team and developed a plan including preparing a printed

brochure for the property, erecting a large for-sale sign that was placed in front of the property, and

listing the property on various online commercial real estate marketing web sites. Mr. Hendrixson

testified that in addition to the print and online marketing of the property, he made several phone

calls and showed the property to various brokers and real estate agents to let them know about the

availability of the property. Before the end of the listing term, Mr. Hendrixson had procured

multiple offers from multiple potential buyers. Ms. Lemme has filed nothing to create an issue as

to whether these acts were sufficient to satisfy Mr. Hendrixson’s duties as the property’s listing

agent. As a result, we do not find that there is a genuine issue for trial with respect to whether Mr.

Hendrixson performed his duties under the listing agreement.

iv. Other issues raised by Ms. Lemme in response to NAI’s summary judgment motion

The remaining issues raised by Ms. Lemme in response to NAI’s motion for summary

judgment were issues of law that were not alleged as grounds for her summary judgment motion.

As stated previously, the burden of production shifted to Ms. Lemme to establish genuine issues of

material fact for trial or that NAI was not entitled to judgment as a matter of law. We find that Ms.

Lemme has failed to meet her burden.

Ms. Lemme contended that Mr. Hendrixson “owed certain fiduciary duties” to her as the

listing agent and that he breached those duties, which, she contends, bars him from receiving a

commission. In support of this contention, Ms. Lemme points to her Answer wherein she alleged

as an affirmative defense that Mr. Hendrixson violated various statutory provisions including Tenn.

Code Ann. §§ 62-13-212, -403, and -404, and that such violations constituted a breach of his

fiduciary duty to her. Ms. Lemme did not present or point to any evidence in the record in support

of this contention and, consequently, she has failed to meet her burden of production establishing

that there is a genuine issue for trial. See Tenn. R. Civ. P. 56.06 (“When a motion for summary

judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading, but his or her response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial.”).

Ms. Lemme also contended that “[t]he fact that Radley Hendrixson signed the Exclusive

Sales Listing Agreement as broker although he was not a broker was a fraud that voided the

contract.” In support of this contention, Ms. Lemme pointed to Mr. Hendrixson’s testimony wherein

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he acknowledged that the title attributed to himself on the listing agreement was broker rather than

affiliate broker. Ms. Lemme does not cite any legal authority in support of her contention that such

action constitutes fraud. In Tennessee, “[f]raud occurs when a person intentionally misrepresents

a material fact or intentionally produces a false impression in order to mislead another or to obtain

an unfair advantage.” Lopez v. Taylor, 195 S.W.3d 627, 634 (Tenn. Ct. App. 2005) (citing Brown

v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001)); see also Concrete Spaces, Inc. v.

Sender, 2 S.W.3d 901, 904 (Tenn.1999); First Nat'l Bank v. Brooks Farms, 821 S.W.2d 925, 927

(Tenn.1991). There is no evidence that Mr. Hendrixson intentionally misrepresented his status as

an affiliate broker. Mr. Hendrixson testified thusly:

Q: Were you supposed to put affiliate broker there or broker?

A: I found that out since then, yes, ma’am.

Q: That what?

A: That I’m supposed to - - if I list a title, I’m supposed to put agent or affiliate

broker in the capacity I had at the time.

Consequently, Ms. Lemme has failed to carry her burden of production establishing a genuine issue

for trial with respect to fraud.

Finally, Ms. Lemme contends that Mr. Hendrixson’s failure to provide Ms. Lemme with a

copy of the executed listing agreement voided the contract. In support of this contention Ms. Lemme

points to her testimony that she did not receive a copy as well as that of Mr. Hendrixson wherein he

testified that he did not recall providing Ms. Lemme with a copy of the listing agreement. Ms.

Lemme asserts that “failure to deliver the contract was a breach of the agent’s duties to his client per

TCA [sic] 62-13-312 and voided the contract.” Ms. Lemme cites no other authority for her

contention that a violation of this statutory provision has the effect of voiding a listing agreement.

Tenn. Code Ann. § 62-13-312(b) authorizes the Real Estate Commission “to refuse a license for

cause or to suspend or revoke a license . . . where a licensee, in performing or attempting to perform

any of the acts mentioned herein, is found guilty of . . . [f]ailing to furnish a copy of any listing, sale,

lease, or other contract relevant to a real estate transaction to all signatories thereof at the time of

execution....” Tenn. Code Ann. § 62-13-312(b)(8). This statute is inapplicable here as it relates to

disciplinary actions that may be taken by the commission. We find no other authority suggesting

that the remedy for a real estate agent’s failure to provide a copy of the listing agreement to his or

her client would be nullification of the contract; consequently, Ms. Lemme has failed to carry her

burden of production establishing a genuine issue for trial.

Because NAI properly supported its motion and demonstrated as a matter of law that it is

entitled to a 6 percent commission on the gross sales price based on the executed July 14, 2005, sales

contract between Ms. Lemme and Steven R. Griffith, Terry and Jennifer Harris, and Robert Cooper,

buyers who were introduced to the property during the term of the listing agreement and because Ms.

Lemme failed to establish that there were any material facts in dispute with respect to NAI’s motion,

we find that the trial court erred in denying NAI’s motion for summary judgment.

-17-

NAI contends that if its summary judgment motion is granted, it is also due pre-judgment

interest and reasonable attorney’s fees. NAI points to the Schedule executed by Ms. Lemme and

expressly incorporated into the listing agreement in support of its contention. The Schedule provided

in pertinent part:

This commission shall be paid at closing or if there is no closing, then upon

recordation of the deed . . . In the event Owner fails to make payments within the

time limits set forth herein, then from the date due until paid the delinquent amount

shall bear interest at ten percent (10%) per annum. If Broker is required to institute

legal action against Owner relating to this Schedule or any agreement of which it is

a part, Broker shall be entitled to reasonable attorney’s fees and costs, provided

Broker prevails in said action for the amount claimed.

Having found NAI was entitled to summary judgment for the amount claimed, 6 percent of

$840,000.00, or $50,400.00, we find that pursuant to the listing agreement, NAI is also entitled to

pre-judgment interest from September 1, 2005, the date the deed for the property was recorded with

the Wilson County Register’s Office as well as reasonable attorney’s fees and costs.

III. Conclusion

Having found that the listing agreement executed by the parties’ is enforceable and Ms.

Lemme was not entitled to summary judgment, but that NAI was entitled to summary judgment, we

reverse the judgment of the trial court granting summary judgment to Ms. Lemme and we grant

summary judgment to NAI. We remand the case for determination of pre-judgment interest,

reasonable attorney’s fees and costs.

Costs of this appeal are taxed to Ms. Lucianna Lemme.

___________________________________

RICHARD H. DINKINS, JUDGE

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