Educational Placement Service, Inc. v. Watts

789 S.W.2d 902, 1989 Tenn. App. LEXIS 772
CourtCourt of Appeals of Tennessee
DecidedNovember 21, 1989
StatusPublished
Cited by8 cases

This text of 789 S.W.2d 902 (Educational Placement Service, Inc. v. Watts) 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
Educational Placement Service, Inc. v. Watts, 789 S.W.2d 902, 1989 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1989).

Opinion

FARMER, Judge.

Educational Placement Service, Inc. (EPS), a Tennessee corporation, contracted with Rex Watts and Mary Ann Watts to purchase from the Wattses improved real estate located in Shelby County. The controversial portion of the contract provides:

This contract is contingent upon the purchaser applying for and obtaining a _conventional loan from from [sic] a local lending institution within _days of this date. Said loan is to be amortized at _% interest or whatever the prevailing rate more or less; for a period of 30 years. Application for this loan is to be made within 1 days of this date.

Gary Harte is a real estate broker and, pursuant to the contract, EPS gave Harte a check in the amount of $10,000.00 earnest money. Legal proceedings were commenced by the filing of a complaint by EPS against Gary Harte1 and the Wattses wherein it is alleged that both Community Bank of Germantown and Union Planters National Bank rejected EPS’s loan under the terms required by the contract. EPS prays that the court declare the contract void and seeks a return of the earnest money.

The Wattses answered the complaint and filed a counter-claim alleging that EPS was offered financing by several financial institutions conditioned solely upon signing of a personal guaranty by the corporation’s president, Gregg McDougall, and the failure of McDougall to personally guarantee the loan constituted a breach of EPS’s duty to exercise reasonable good faith efforts in obtaining financing. The Wattses also filed a third-party complaint against McDougall alleging that he breached his duty to exercise reasonable good faith efforts in obtaining financing.

The trial court granted EPS’s motion for summary judgment and the Wattses appeal. Summary judgment is to be rendered by a trial court only when it is shown that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R. C.P. 56.03. In ruling on a motion for summary judgment, the trial court and this Court must consider the matter in the same manner as a motion for a directed verdict made at the close of the plaintiff’s proof, i.e., all the evidence must be viewed in the light most favorable to the opponent and all legitimate conclusions of fact must be drawn in favor of the opponent. It is only when there is no disputed issue of material fact that a summary judgment should be granted. Graves v. Anchor Wire Corp. of Tennessee, 692 S.W.2d 420 (Tenn.App. 1985); Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799 (Tenn.App.1983).

Our examination of the subject clause of the agreement discloses that, notwithstanding the blanks that were left unfilled, the [904]*904contract was contingent upon the purchaser (EPS) applying for and obtaining a conventional loan from a local lending institution at the prevailing rate of interest more or less for a period of 30 years, the application to be made within one day of the date of the agreement.

In support of the motion for summary judgment, EPS presented the affidavit of Paul E. Engstrom, its vice-president. According to his affidavit, both Community Bank of Germantown and Union Planters National Bank declined to finance this purchase for EPS without the personal guaranty of the president of the corporation, Gregg McDougall. Engstrom was then approached by the Wattses, through Harte, concerning the possibility of a loan from the First State Bank of Parkin, Arkansas. Engstrom met with a representative of that bank who made a proposal which included a 15-year amortization, with annual renewal and the unrestricted right of the bank to call the loan at any time. Although he was willing to listen to the proposal, he did not want to do business with a bank outside of Memphis. He further states that this transaction was the first real estate purchase by EPS and was his first involvement in purchasing commercial real estate.

An affidavit was filed by the Wattses in opposition to summary judgment stating that a contract was offered to them signed by Gregg McDougall as president of EPS. When they learned that the condition required by Community Bank of German-town and Union Planters was not acceptable to the purchasers, the Wattses arranged a financing package for 80 percent of the purchase price which would not require MeDougall’s personal guaranty. The terms of this loan were set forth in a letter from Mr. Watts to Harte dated March 4, 1988 which is attached to the affidavit and states:

Providing Gregg McDougall can prove the earning ability of his company over the past four or five years, Brighton Bank has agreed to give him a 60% ($303,600.) loan on 58 Timber Creek Drive at very competitive rates and conditions and without Gregg McDougall’s signature for personal liability.
Also, we, Remar Builders, have agreed to give Gregg McDougall a 17% ($86,-020.) second mortgage and you, Gary Harte, have agreed to give him a 3% ($15,180.) third mortgage at the same rates and conditions as Brighton Bank. It is Gregg McDougall’s responsibility to provide the remaining 20% ($101,200.) down payment and his closing costs.
We are asking that Gregg McDougall immediately make available the necessary documents to Brighton Bank and close as soon as the bank will allow. This offer will be withdrawn if not acted upon by March 7, 1988.

The record shows that Brighton Bank is located in Brighton, Tipton County, Tennessee.

They further presented the affidavit of Walter F. Plumlee, Jr., vice-president of Community Bank of Germantown with a letter from him to Engstrom attached. Basically, the letter explains the bank’s requirement of personal guaranty.

The affidavit of Jerry L. Wood, vice-president of Union Planters, attaches a letter from him to Engstrom stating that his bank would be unable to approve EPS’s request for a 90 percent loan. However, the bank had a broker through which it refers loans of this type, the maximum loan is 75 percent and requires personal guaranties of the principals. Wood further recites that EPS provided the bank with all corporate documents and information he requested to document and complete the loan application.

When a purchase agreement is contingent upon the buyer obtaining financing, implied in that agreement is a duty upon the buyer to make a reasonable effort to obtain adequate financing. Covington v. Robinson, 723 S.W.2d 643 (Tenn.App.1986). The question of reasonableness is a factual question to be determined by the trier of fact and, if there is a dispute, [905]*905summary judgment would not be proper. However, in this case the purchaser is a corporation. The parties contracted that the sale would be contingent upon the purchaser obtaining financing as agreed. McDougall, although he is the sole shareholder of EPS, was not a party to the agreement except to execute as president in behalf of the corporation. Many factors enter into a decision whether to incorporate, not the least of which is to seek to limit personal liability on the part of the principals. Once the decision is made to incorporate, a separate entity is created. That entity is empowered to enter into contracts, is subject to taxation and to liability.

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Cite This Page — Counsel Stack

Bluebook (online)
789 S.W.2d 902, 1989 Tenn. App. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/educational-placement-service-inc-v-watts-tennctapp-1989.