Behm v. Behm

• Court: Court of Appeals of Tennessee
• Decided: July 28, 1999
• Docket: 03A01-9810-CH-00339
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE FILED AT KNOXVILLE July 28, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk JOHN REGINALD BEHM, ) C/A NO. 03A01-9810-CH-00339 ) Plaintiff-Appellant, ) ) ) ) v. ) ) ) APPEAL AS OF RIGHT FROM THE ) LOUDON COUNTY CHANCERY COURT SANDRA SMITH BEHM, ) ) Defendant-Appellee. ) ) ) ) FRED A. CHANEY, CLERK AND MASTER,) ) HONORABLE FRANK V. WILLIAMS, III Amicus Curiae. ) CHANCELLOR

For Appellant For the Amicus Curiae

LARRY C. VAUGHAN RUSSELL JOHNSON KIMBERLY R. TAYLOR REX A. DALE Vaughan and Zuker Johnson & Dale Knoxville, Tennessee Loudon, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1 In this divorce case, the sole question before the

trial court was whether the Clerk and Master, as the court-

appointed Special Commissioner, was entitled to a fee to

compensate him for his efforts, albeit unsuccessful, to sell the

parties’ 25 acres in Loudon County. Following an evidentiary

hearing, the trial court ordered John Reginald Behm (“Husband”)

to pay the Clerk and Master a fee of $6,000.1 Husband appeals,

arguing, in effect, that the evidence preponderates against the

trial court’s judgment.

I

Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to us

with a presumption that the trial court’s factual findings are

correct. Rule 13(d), T.R.A.P.; Wright v. City of Knoxville, 898

S.W.2d 177, 181 (Tenn. 1995). We must honor this presumption

unless we find that the evidence preponderates against those

findings. Rule 13(d), T.R.A.P.; Wright, 898 S.W.2d at 181; Union

Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The

trial court’s conclusions of law, however, are not accorded the

same deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26,

35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.

1993).

Our de novo review is also subject to the well-

established principle that the trial court is in the best

1 While claiming that no fee was due, Husband acknowledged at trial that as between him and his former wife, he was responsible for the fee in the event the trial court found that one was due.

2 position to assess the credibility of the witnesses; accordingly,

such determinations are entitled to great weight on appeal.

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);

Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).

II

By order entered May 15, 1998, the parties agreed that

the Clerk and Master, Fred A. Chaney, as Special Commissioner,

would sell their former marital residence and 25 acres at auction

for $250,000 “unless the parties...agree[d] to a lower amount at

the time of auction.” Among other things, the order also

provided

that the Special Commissioner, by performing the aforesaid extraordinary services in the sell [sic] of the property in this cause as ordered by the Court is entitled to receive additional compensation in the amount of three percent (3%) commission of the sale price at the time of the closing, said amount to be paid directly to the Clerk & Master’s office.

Mr. Chaney attempted to auction the property on June

27, 1998. By agreement of the parties, a beginning bid of

$200,000 was requested. No bids were received, and Mr. Chaney

announced that there “was no sale.”

On June 29, 1998, Mr. Chaney filed his “Special

Commissioner’s Report of Sale.” The Report concludes as follows:

At the conclusion of the sale, the Special Commissioner reminded Mr. and Mrs. Behm that

3 a bill for one-half of the costs of the sale will be mailed to them within one week and these costs are to be paid by them immediately. It was also explained that the Special Commissioner is to receive the 3% commission on the total sales price of the property at the time of closing, regardless who sells the property. Mr. and Mrs. Behm said they understood and agreed with the Special Commissioner concerning both matters.

On July 11, 1998, Sandra Smith Behm (“Wife”) received

an offer from Husband to purchase her interest in the property

for a net of $62,763.86. Husband’s written proposal was based on

a hypothetical sales price of $200,000. Included in his

calculation was a deduction of $6,000, which he described as

“Special Commissioner 3%.” Wife countered with an offer to take

$86,314.11 for her interest. Her counter was based on a

hypothetical sales price of $230,000 and reflected, among her

computations, a deduction for $6,900 for “Special commission of

3%.” Husband agreed to purchase Wife’s interest in accordance

with the terms of her counter-offer, and the transaction was

subsequently consummated.

At trial, Husband took the position that the order of

May 15, 1998, contemplates a commission to Mr. Chaney if, and

only if, the latter sold the property. He denied that he had

ever agreed to pay Mr. Chaney a commission other than as a charge

attendant to an actual sale by the Clerk and Master.

Mr. Chaney testified that the parties had a different

understanding. He stated that it was agreed between the Behms

and him that “I get my three percent commission...I get it no

matter who sells it, how it’s sold down the road.”

4 The trial court allowed Mr. Chaney a fee of 3% on a

sales price of $200,000, i.e., a fee of $6,000.2 In so doing,

the trial court noted that it

[had] no problem whatsoever believing Mr. Chaney when he says he would not have undertaken a sale of this property under any circumstances without knowing that he was going to get paid in the event that it didn’t bring their minimum.

Our interpretation of the trial court’s remarks is that

it resolved the credibility issues in this case in favor of Mr.

Chaney. As we have previously indicated, such determinations are

entitled to great weight on appeal. Massengale, 915 S.W.2d at

819. Thus, while we acknowledge conflicting testimony on the

subject of the Special Commissioner’s fee, we cannot say, in view

of the trial court’s credibility determinations, that the

evidence preponderates against the trial court’s judgment that

the parties’ agreement contemplated a fee for Mr. Chaney

regardless of whether he was successful in auctioning off the

parties’ property.

III

The judgment of the trial court is affirmed. Costs on

appeal are taxed against the appellant. This case is remanded

for such further proceedings, if any, as may be required,

consistent with this opinion, and for collection of costs

assessed below, all pursuant to applicable law.

2 The computation of the fee is not an issue on this appeal.

5 __________________________ Charles D. Susano, Jr., J.

CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ Herschel P. Franks, J.