Breeding v. Shackelford

888 S.W.2d 770, 1994 Tenn. App. LEXIS 271
CourtCourt of Appeals of Tennessee
DecidedMay 19, 1994
StatusPublished
Cited by9 cases

This text of 888 S.W.2d 770 (Breeding v. Shackelford) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breeding v. Shackelford, 888 S.W.2d 770, 1994 Tenn. App. LEXIS 271 (Tenn. Ct. App. 1994).

Opinion

TOMLIN, Presiding Judge (Western Section).

Gordon Breeding, Tom Haggard and Charlie Bowers, individually and d/b/a Century 21 Breeding Realty and Auction (“plaintiff’ or “Century 21”), filed suit in the Chancery Court of Hardin County against Robert P. Shackelford, Don H. Shackelford, the estate of Robert P. Shackelford individually and d/b/a the Shackelford Corporation, as well as the Shackelford Development Corporation (“defendants” or “Shackelford”), seeking to recover a real estate commission resulting from the alleged breach of an open listing real estate agreement between defendants and plaintiff. Plaintiff filed a motion for summary judgment which was denied by the chancellor. The chancellor held that while the material facts were undisputed, the defendants had not breached the real estate listing agreement. Century 21 has appealed, raising a single issue: whether the trial court erred in holding on the undisputed facts, as a [771]*771matter of law, that defendants did not breach the real estate listing with plaintiff. We find no error and affirm.

Following the hearing on plaintiffs summary judgment motion, the chancellor filed an extensive memorandum opinion in which he set forth what he found to be the undisputed facts in this case. The judgment, entered by consent of the parties, contains stipulations concerning the undisputed facts and reads in part as follows:

IT FURTHER APPEARS to the Court, based upon the undisputed facts in the case, that a sale or transfer of the property has not tafeen place as contemplated by the written listing agreement between the parties.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT that based upon the undisputed facts of the case, the plaintiff is not entitled to a judgment as a matter of law.
IT FURTHER APPEARING to the Court that in the Court’s written opinion previously filed with the Court that it is stated that the Court’s memorandum addresses only the plaintiffs’ claim for a real estate commission based on a written listing agreement and does not address claims for a commission based on any oral agreement of the parties. The parties hereto, by consent, as evidenced by their signatures herein, stipulate and agree that plaintiffs’ claim in the Complaint for a commission based upon an oral agreement is without legal or equitable merit and that plaintiffs rely solely on the written listing agreement for their claim for a real estate commission in the cause. The parties further agree and stipulate that to the extent there are any undisputed facts, such would not alter the stated judgment in favor of the defendants, even if they were decided in favor of plaintiffs.
IT FURTHER APPEARS to the Court that the plaintiffs have filed a Notice of nonsuit against Charlie and Gary McCro-ry, d/b/a The McCrary Company, and therefore, it is the intent of the parties hereto by and with their consent that this Order constitutes a final order of judgment in the cause in favor of the defendants, Robert P. Shackelford, Jr., Don H. Shack-elford and the estate of Robert P. Shackel-ford, Individually and d/b/a The Shackel-ford Company, a Tennessee Partnership; The Shackelford Corporation; and The Shackelford Development Corporation.

As we understand the chancellor’s memorandum opinion and the consent judgment, neither party disagrees with the chancellor’s finding of the undisputed facts. Accordingly, this court appropriates and adopts the factual findings of the chancellor as they appear in his memorandum opinion:

1. A listing agreement was entered into on August 19, 1988, between the Shackel-ford Company, a partnership composed of R.P. Shackelford, Jr. and Don Shackelford, brothers, and Century 21. The listing was a six month open listing agreement for the sale of the Shackelford property and was to expire on February 19, 1989.
2. The listing agreement states a listing price for the property of $1,900,000 and provides for a payment of a real estate commission to Century 21 of six (6%) percent of the sales price.
3. A portion of the listing agreement provides as follows:
I reserve the right to sell the property to a buyer procured by myself or through another agent and in such case no commission or other charge shall be due you, provided such sale or transfer is not made directly or indirectly to or through your prospect.

The listing has an expiration date of February 19, 1989, but provides:

... however, if within one year after the termination of this agreement, I sell or transfer this property to a prospect procured by you prior to its termination, I shall pay your commission.
4. On or about October 4, 1988, Gary McCrary, a partner in The McCrary Company of Memphis, contacted Charles Bowers, a real estate agent for Century 21, requesting that Bowers locate approximately 400 to 500 acres of property for a fishing lake or development. Bowers then showed McCrary on several occasions the Shackelford property as well as adjacent [772]*772property known as the Walker heirs property which joins the Shackelford property.
5. On November 9, 1988, on behalf of the McCrory Company, Century 21 submitted to the Shaekelfords an option to purchase the Shackelford property, but the option was rejected by the Shaekelfords.
6. The Walker heirs property was purchased by the McCrory Company for the amount of $800,235 pursuant to a sales contract negotiated by Century 21 and the real estate commission paid.
7. Bowers, on behalf of Century 21, arranged an initial meeting between McCrory and the Shaekelfords to consider the possibility of forming a joint venture between the Shaekelfords and the McCro-ry Company.
8. A joint venture agreement was reduced to writing between the Shaekelfords and The McCrory Company on April 30, 1989, a date which was within one year of the termination of the listing agreement. The joint venture was designed for the development and sale of the Walker heirs property now owned by McCrory and the Shackelford property.
9. Various corporations owned by the Shackelford family have certain rights in the property listed by Century 21 for sale which ultimately became encompassed in the joint venture.
a. The Shackelford Company initially owned the listed property and still maintains legal title to the property.
b. The Shackelford Company sold the “rights to take title” to the Shackelford Corporation prior to the listing agreement.
c. The Shackelford Corporation “optioned” the property to the Shackelford Development Corporation which became a party to the joint venture. Any interest of the joint venture in the Shackel-ford property was subject to the option granted the Shackelford Development Company.
10. The Shackelford property and the adjacent Walker heirs property owned by McCrory have been developed as a residential resort area on Pickwick Lake pursuant to the joint venture agreement. Since the formation of the joint venture, conveyances of individual lots to individual buyers have been made from the Shackel-ford property with title being conveyed by the Shackelford Company as record title holder to the property.

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Bluebook (online)
888 S.W.2d 770, 1994 Tenn. App. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breeding-v-shackelford-tennctapp-1994.