KEN BUCKNER ET AL.
MIKE GOODMAN ET AL.
Session October 18, 2016
from the Chancery Court for Bradley County No. 2014-CV-262
Jerri S. Bryant, Chancellor
case involves a contract to purchase a home on the
sellers' condition that the home be removed from the
sellers' real property at the buyers' expense. The
sellers and the buyers entered into a written contract on
January 25, 2013, at which time the buyers paid a $2, 500
deposit toward an agreed price of $5, 000 for the home. The
contract did not set forth a deadline for the home to be
removed from the sellers' property, although the sellers
were required to demonstrate to the lender financing their
new construction loan that the home had been removed. The
buyers contacted several potential house movers to transport
the home but did not execute a final written contract with
any of them. The sellers subsequently entered into a written
agreement with movers who had originally been contacted by
the buyers, retaining the movers to "take
possession" of the home and transport it but providing
the original buyers a first option to purchase. After
learning of the agreement between the sellers and the movers,
the buyers contacted the movers, "firing" them. The
sellers then had the home demolished. The buyers filed a
complaint against the sellers, alleging breach of a home
sales contract. The sellers filed a counter-complaint,
alleging that the buyers had materially breached the contract
first by failing to timely remove the home. The buyers
subsequently filed a second complaint against the movers,
alleging intentional interference with contractual relations.
The trial court consolidated the two actions. Following
presentation of the buyers' proof during a bench trial,
the trial court found that the buyers had materially breached
the contract. The court granted the sellers' and the
movers' respective motions for involuntary dismissal
pursuant to Tennessee Rule of Civil Procedure 41.02. Upon
hearing the sellers' evidence regarding damages, the
court entered a judgment in favor of the sellers in the
amount of $5, 200, comprised of $7, 700 in total damages
offset by the $2, 500 previously paid by the buyers. The
buyers timely appealed. Discerning no reversible error, we
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
William J. Brown, Cleveland, Tennessee, for the appellants,
Ken Buckner and Brenda Buckner. James F. Logan, Jr.,
Cleveland, Tennessee, for the appellees, Mike Goodman and
Jerrold L. Becker, Knoxville, Tennessee, for the appellees,
Hugh Edward Mayes and Kay Mayes d/b/a B&B
Construction/B&B Moving and Foundation Services.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Andy D. Bennett, J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
November 2013, defendants Mike Goodman and Cindy Goodman
("the Goodmans") were building a new home,
intending to replace the approximately 1, 500-square-foot
home ("the Home") in which they had been residing
on their real property located at 1192 Hunt Road in
Cleveland, Tennessee ("the Property"). The Goodmans
placed a notice in the Tennessee Trader, a
classified advertising circular, stating that they were
offering the existing house for sale "[t]o be moved off
property." The plaintiffs, Ken Buckner and Brenda
Buckner ("the Buckners"), contacted the Goodmans on
November 27, 2013. Over the telephone, Ms. Buckner and Mr.
Goodman agreed on a purchase price of $5, 000 for the Home,
provided that the Buckners would remove the Home from the
Property and pay the attendant cost.
January 25, 2013, the Buckners and the Goodmans entered into
a written contract ("the Contract"), and the
Buckners paid a $2, 500 deposit toward purchase of the Home.
The Contract, which was drafted in handwritten form by Ms.
Goodman, was signed by Mr. Buckner as the "Buyer"
and both Mr. and Ms. Goodman as the
"Seller[s]." The text of the Contract states in full:
Mike & Cindy Goodman has sold the brick home located at
1192 Hunt Rd. Cleveland. TN to Ken Buckner for the amount of
$5000.00 dollars. The house is sold as is and will be moved
off the property.
A deposit of $2500.00 has been paid. Remainder will be paid
when house is moved.
Goodmans filed a notice of completion for their newly
constructed home with their lender on January 14, 2013. The
parties' respective testimonies differed as to when an
understanding existed between the Buckners and the Goodmans
that the original Home needed to be moved by a certain date.
Mr. Goodman testified via deposition that in early January,
he informed Mr. Buckner that the Home had to be moved soon
because the Goodmans' construction loan period was
ending. According to Mr. Goodman, Mr. Buckner told him that a
mover had given him a date of February 4, 2013, to move the
Home. Mr. Goodman stated that he then set the closing on the
Goodmans' construction loan for ten days following this
date, or February 14, 2013.
during trial, Mr. Buckner denied that he had a mover
identified on February 4, 2013. According to Mr. Buckner, he
and his wife did not learn of any specific time period for
moving the Home until Mr. Goodman called him on January 29,
2013, four days following the Contract's execution, and
informed him that the lender was requiring the Goodmans to
have the Home removed from the Property by February 14, 2013,
in order to convert the construction loan to permanent
financing. Mr. Buckner maintained that he told Mr. Goodman he
would "try" to have the Home removed by February
14, 2013, but did not promise this would be accomplished.
Buckners contacted at least three potential house movers
regarding removal of the Home to acreage owned by the
Buckners in Cleveland. Prior to execution of the Contract and
upon Mr. Goodman's recommendation, the Buckners initially
contacted a mover named Tom Rutledge regarding an estimate to
move the Home, but the Buckners and Mr. Rutledge were unable
to reach an agreement. The Buckners then contacted a
potential mover named Donald Payne. Mr. Buckner testified
that he met Mr. Payne at the Home on January 6, 2013, and
that he and Mr. Payne inspected the Home after being admitted
by Ms. Goodman's mother. According to Mr. Buckner, the
Home was "packed clean to the ceiling with boxes"
at that time, and Mr. Payne said he would not be able to
commit to the move because he was scheduled to leave the
country a few days later.
Buckner further testified that on February 2 or 3, 2013, he
contacted defendants Edward and Kay Mayes d/b/a B&B
Construction and B&B Moving and Foundation Services
("the Mayeses"), regarding potentially hiring them
to move the Home. Although Ms. Mayes testified that this
initial contact occurred on February 1, 2013, while Mr. Mayes
stated it occurred on February 5, 2013, it is undisputed that
the Mayeses sent a proposed contract to the Buckners via
facsimile on February 6, 2013, with a total estimated price
for moving the Home of $21, 000. According to Mr. Buckner, he
contacted Ms. Mayes via telephone the same day and stated
that he did not agree with some provisions of the proposed
contract. She told him to mark his proposed changes and
return it. The Buckners maintained that they returned a
marked version of the contract to the Mayeses via facsimile
on February 8, 2013. According to Mr. and Ms. Buckner's
respective testimonies, they repeatedly attempted to contact
the Mayeses prior to February 14, 2014, but received no
response except for one brief telephone conversation with Mr.
Mayes during which he said that he would get back to Mr.
Buckner. Mr. Buckner testified that he made initial contact
with three other house movers while waiting for a response
from the Mayeses.
contrast, the Mayeses, testifying via deposition, each
respectively claimed never to have seen the Buckners'
marked version of the proposed contract until it was produced
during the pre-trial discovery process. Mr. Mayes testified
that following Mr. Buckner's initial contact, he met Mr.
Buckner at the Property on February 5, 2013, viewed the Home,
and then drove to the Buckners' property to which the
Home purportedly would be moved. According to Mr. Mayes, Mr.
Buckner informed him that he had only seven days to move the
Home. Mr. Mayes testified that following his visits to the
Goodmans' and Buckners' respective properties, still
on February 5, 2013, he told Mr. Buckner that he would not be
able to move the Home within seven days because of obstacles
posed by power lines, trees, and the Property's
topography. Mr. Mayes also stated that he advised Mr. Buckner
that a permit would be needed from "environmental
health" before the Home could be placed on the
Buckners' property. Mr. Mayes maintained that he told Mr.
Buckner on February 5, 2013, that he would speak to Mr.
Goodman in an attempt to determine whether anything could be
done to extend the February 14 deadline. According to Mr.
Mayes, he spoke to Mr. Buckner "several times" over
the next few days. It is undisputed that the Mayeses and the
Buckners never entered into a contract or reached an
Goodman testified at trial that he and his wife obtained an
extension on the closing date of their construction loan to
February 25, 2013, for which they had to pay a $1, 000
penalty. They were also required to pay $100 per day in
additional interest fees. Mr. Goodman stated that while he
was contemplating the need to obtain an extension, he
contacted Mr. Buckner via telephone on February 12 or 13,
2013, and offered him an extension of time to move the Home
if he would pay the $1, 000 penalty. According to Mr.
Goodman, Mr. Buckner agreed over the telephone to pay the $1,
000 penalty the next day in person but then failed to appear
or provide the penalty fee.
meantime, Mr. Mayes and Mr. Goodman came to an understanding
on February 14, 2013, that if the Home could be moved to a
parcel of land owned by the Goodmans that was adjacent to the
Property at issue, the Goodmans' lender would be
satisfied and the Buckners could be allowed additional time
to move the Home to their property. On February 15, 2013, the
Goodmans and the Mayeses entered into a written agreement
("Goodman-Mayes Agreement"), "confirming
[their] conversation and agreement by telephone on Thursday,
February 14, 2013 . . . ." According to the
Goodman-Mayes Agreement, the Mayeses, doing business as
B&B House Movers, would "take possession" of
the Home and "remove the house to the lot adjacent of
the right side of existing house to location on the same
property to be determined by Mr. Goodman to serve as a
staging area until house can be moved to permanent
location." The Goodman-Mayes Agreement provided that Mr.
Buckner was granted a "first option to purchase the said
house for a move bill plus expenses of removing telephone
lines, power poles and any utilities." The Goodman-Mayes
Agreement further provided that upon sale of the Home by
B&B House Movers, Mr. Goodman would receive "a
minimum of $3, 000 for his interest in said house with an
option for an additional percentage to be agreed upon."
If the Home did not sell within sixty days after removal to
the adjacent lot, the Goodman-Mayes Agreement provided that
the Mayeses would begin making a lease payment of $350 per
month to the Goodmans.
trial, the Buckners presented two voice mail recordings left
on Ms. Buckner's cellular telephone. In the first, dated
February 14, 2013, Mr. Mayes explained the agreement reached
by the Mayeses and Goodmans, stating that he would sell the
Home to the Buckners for the "move bill." In the
second voice mail, dated February 15, 2013, Ms. Mayes
repeated an explanation of the agreement and stated that the
Buckners would have an "option" to purchase the
Home. In his deposition testimony, Mr. Mayes testified that
he spoke with Mr. Buckner for thirty to forty-five minutes
during the evening of February 14, 2013, attempting to
explain his intention to preserve the Home and resolve the
situation favorably for everyone involved. It is undisputed
that Mr. Buckner subsequently telephoned Ms. Mayes and stated
that the Mayeses were "fired if they had anything to do
with the house."
Buckner testified that he also spoke to Mr. Goodman via
telephone on February 15, 2013, and expressed his belief that
he and Ms. Buckner had already purchased the Home when they
paid $2, 500 and signed the Contract. It is undisputed that
Mr. Goodman offered to return the $2, 500 to the Buckners
during this conversation and that Mr. Buckner refused to
accept a refund. According to Mr. Goodman, Mr. Buckner then
told him to "keep the money and tear the house
down." At trial, Mr. Buckner denied having made this
statement. Mr. Goodman acknowledged that the ultimate
decision to demolish the Home was his. He and Mr. Mayes each
respectively testified that Mr. Mayes, after receiving the
message that Mr. Buckner had called and "fired" the
Mayeses, called Mr. Goodman and advised him that he might
need to demolish the Home in order to avoid a lawsuit.
February 16, 2013, the Goodmans had the Home demolished and
removed in pieces. Mr. Goodman informed the Buckners of the
demolition on February 23, 2013, through a voice mail, again
offering to return the Buckners' $2, 500 deposit to them.
The Buckners did not accept a return of the deposit. Mr.
Buckner testified that he previously had learned of the
demolition on February 16, 2013, through a telephone call
from his daughter, who had witnessed a portion of the
February 27, 2013, the Buckners filed a complaint against the
Goodmans, alleging breach of the Contract for sale of the
Home. The Goodmans filed an answer and counter-complaint on
July 13, 2013, alleging that the Buckners had materially
breached the Contract by failing to timely remove the Home
from the Property. On November 19, 2014, the Buckners filed a
complaint against the Mayeses, alleging common law and
statutory claims for intentional interference with
contractual relations and requesting treble damages pursuant
to Tennessee Code Annotated § 47-50-109. Upon the
Buckners' motion, the trial court consolidated the two
actions in an order entered May 20, 2015.
trial court conducted a trial over the course of two days on
September 16, 2015, and October 8, 2015. Mr. and Ms. Buckner
each respectively testified. In addition, the parties
stipulated to admission of Mr. and Ms. Goodman's
respective deposition testimonies and redacted versions of
Mr. and Ms. Mayes's respective deposition testimonies as
exhibits. In an attempt to demonstrate their damages, the
Buckners called a certified home appraiser, Billy Thacker, to
testify to the value of the Home. The Buckners had retained
Mr. Thacker to estimate the value of the Home in January
2013. Using what he termed a "cost approach, " Mr.
Thacker estimated the value of the Home on its foundation on
the Property as $87, 528. To estimate the value of the Home
if it were removed from the foundation and placed on
"rails" to be moved, Mr. Thacker stated that he
would deduct $21, 000 for the cost of the move and $12, 000
for the brick material that would be removed, for a total
estimated value of $54, 000. Mr. Thacker acknowledged that he
had not performed a full walk-through appraisal and had
reached his estimate by viewing a photograph of the Home.
presentation of the Buckners' proof, the Goodmans and the
Mayeses each respectively moved for involuntary dismissal of
the Buckners' complaints pursuant to Tennessee Rule of
Civil Procedure 41.02. The trial court granted the motions
and dismissed the Buckners' complaints with prejudice
upon finding that the Buckners had "caused the breach of
the contract to the Goodmans by failing to get the house
moved within the time allotted, " which the court found
to have ended on February 14, 2013. The court also found that
the Mayeses could not have interfered with the Contract
because the Contract was no longer enforceable at the time
the Mayeses entered into the Goodman-Mayes Agreement. The
court further found that the Buckners had failed to establish
an intent to induce a breach or any malicious behavior on the
part of the Mayeses. Prior to granting the motions for
involuntary dismissal, the court also found that Mr.
Thacker's valuation of the Home was too speculative to be
probative, stating: "The plaintiff bargained for a house
for $5, 000 and that's the only proof of what value it
would have been."
with trial, still on October 8, 2015, the trial court heard
evidence presented by the Goodmans on their breach of
contract claim, including testimony by Mr. Goodman. Upon
finding that the Buckners had breached the Contract by
failing to timely remove the Home from the Property, the
court further found that the Goodmans had incurred a total of
$7, 700 in damages, including $6, 000 for the cost of
removal; a $1, 000 penalty to extend their construction loan;
and $700 in interest fees, consisting of $100 per day for
seven days. Offsetting the damages by the $2, 500 the
Buckners previously had paid toward purchase of the Home, the
court entered a judgment in the amount of $5, 200 in favor of
the Goodmans. The Buckners timely appealed.
Buckners present three issues on appeal, which we have
restated as follows:
1. Whether the trial court erred by finding that the Buckners
materially breached the Contract by failing to remove the
Home from the Property by February 14, 2013.
2. Whether the trial court erred by dismissing the
Buckners' claim against the Mayeses for intentional
interference with contractual relations between the Buckners
and the Goodmans.
3. Whether the trial court erred by declining to accept
testimony proffered by the Buckners' expert witness
regarding the fair market value of the Home ...