Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

White v. Miller

Court of Appeals of Tennessee, Nashville

August 30, 2017

GREGORY WHITE, ET AL.
v.
JACK MILLER, ET AL.

          Session January 18, 2017

         Appeal from the Chancery Court for Wilson County No. 2013-CV-257 Charles K. Smith, Chancellor.

         Sellers of home and their listing agent brought suit against a real estate brokerage firm and an agent employed by the firm to recover for alleged violations of the Tennessee Consumer Protection Act and Real Estate Broker License Act, undisclosed dual agency, and breach of fiduciary duty, arising from the sale of plaintiffs' home. The brokerage firm agent procured a contract whereby the sellers agreed to purchase the buyers' home, with the purchase price for the buyers' home to be treated as a credit on the purchase price of the sellers' home. Upon learning that the agent was also representing the buyers, the sellers brought suit, seeking forfeiture of the agent's and brokerage firm's commission; the sellers' listing agent joined in the suit to recover the commission the brokerage firm agreed to pay her as a referral fee. The trial court dismissed all claims filed by the seller husband for lack of standing, granted summary judgment to seller wife on her claim of undisclosed dual agency, and ordered that the brokerage firm and agent forfeit the commission from the sale. The court awarded the listing agent the commission she sought and granted summary judgment to brokerage firm and agent on the seller wife's claim under the Tennessee Consumer Protection Act and on the seller wife's claim that she was entitled to the commission generated by the sale of the buyers' home. Upon a thorough review of the record, we affirm the judgment in part and reverse in part, and remand the case for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part; Case Remanded

          Teresa Reall Ricks and Laura Adams Hight, Nashville, Tennessee, for the appellants, Jack Miller and Bob Parks Realty, LLC.

          Thomas B. Luck, Nashville, Tennessee, for the appellees, Gregory White, Robin White, and Carole Palmer.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE.

         I. Factual and Procedural History

         Robin and Gregory White, owners of property located at 2052 Breckenridge Drive, Mt. Juliet, ("the Breckenridge Property") entered into an agreement with Carole Palmer, a licensed real estate agent, to list the property for sale. Ms. Palmer then entered into an agreement with Bob Parks Realty Co. ("Parks") wherein she referred Robin White to Parks, and for which she was to receive 25 percent of the commission paid to Parks from the sale of the Breckenridge Property as consideration for the referral (the "Referral Agreement"). Robin White thereafter entered into an agreement, the "Exclusive Right to Sell Listing Agreement (Designated Agency), " with Parks for the sale of the Breckenridge Property (the "Breckenridge Listing Agreement"); Jack Miller, a licensed real estate agent affiliated with Parks, was appointed by Parks as "designated agent" for the sellers.[1] In due course, Mr. Miller signed a Confirmation of Agency Status indicating that he was the "designated agent for the seller."[2]

         Dr. Hoang Phi Nguyen and his wife, Diana Diep Ho (hereinafter "the Nguyens") contacted the Whites directly about purchasing the Breckenridge Property. The Whites referred the Nguyens to Mr. Miller, who negotiated with the Nguyens on the Whites' behalf, presenting the Whites with the Nguyens' offer to purchase the Breckenridge Property for $900, 000. In the course of those negotiations, Mr. Miller, on behalf of Parks, entered into an "Exclusive Right to Sell Listing Agreement (Designated Agency), " ("Waterbrook Listing Agreement" herein) with the Nguyens for the sale of the Nguyens' townhouse at 419 Waterbrook Drive, Mt. Juliet (the "Waterbrook property"); Mr. Miller signed the agreement as "broker or licensee authorized by broker, " with Parks listed as the "Broker/Firm." The Whites and Nguyens subsequently entered into a Purchase and Sale Agreement whereby the Nguyens agreed to purchase the Breckenridge property for $900, 000, and the Whites agreed to accept the Waterbrook property for $155, 000, to be applied as a credit toward the purchase price of the Breckenridge property. The closing took place at Brokers Escrow on July 12, 2013. After the closing but on the same day, Brokers Escrow filed an interpleader action, naming the Whites, Mr. Miller, Parks, and Ms. Palmer as defendants, paying the amount of the commissions into the court, and requesting that the court determine how the commissions would be distributed.[3]

         Mr. and Mrs. White filed suit against Mr. Miller, Parks, and Brokers Escrow in Chancery Court on July 12, 2013, alleging that, in addition to acting as their agent, Mr. Miller acted as undisclosed agent for the Nguyens without the White's consent, violated the duties set forth at Tennessee Code Annotated section 62-13-404, breached his fiduciary duty to them, and violated the Tennessee Consumer Protection Act ("TCPA"). Ms. Palmer joined in the suit seeking to recover $6, 750, which she alleged was the commission she was due arising from the sale of the Breckenridge property. Parks and Miller filed an answer and counterclaim against the Whites, asserting that the Whites breached the Listing Agreement and the Purchase and Sale Agreement by instructing the closing agent not to pay the commission; they also sought damages under the TCPA against the Whites for bringing a frivolous claim.

         Parks and Miller moved for summary judgment contending that the Whites were unable to prove their claims for two reasons: (1) there was no agency relationship between Mr. Miller and the Nguyens, and (2) even if there was an agency relationship between Mr. Miller and the Nguyens, the Whites were not injured and could not prove that they suffered damages as a result of the relationship. The Whites and Ms. Palmer moved for summary judgment on their respective claims. With respect to the dual agency claim, the Whites argued that by acting as an agent for both parties without the Whites' approval, Mr. Miller and Parks unlawfully acted as undisclosed dual agents and should forfeit their commission as a result. The Whites and Ms. Palmer also argued that the TCPA applies to real estate agents and brokers and that "[i]f the court determines that the Defendants engaged in unfair or deceptive practices under the Act, it may award [Plaintiffs] treble damages and attorney fees."

         Following a hearing on March 24, 2016, the trial court entered judgment on the motions. The court granted Carole Palmer judgment for $6, 750 on her claim, representing 25 percent of 3 percent of the sales price, for referring the Whites to Parks; granted the Defendants judgment on the White's TCPA, negligence, and respondeat superior claims and on all claims asserted by Gregory White; and granted Robin White judgment on her claim for dual agency. The court made extensive findings related to the issue of dual agency[4] and concluded that Jack Miller and Parks acted as dual agent for the Whites and the Nguyens, which was an unlawful act, the remedy for which was the forfeiture of the commission.

         The court ordered the Clerk and Master to disburse to Robin White $41, 875 that had been tendered to the Clerk and Master in the interpleader action, plus accrued interest, less the $6, 200 commission for the sale of the Waterbrook property. The court also ordered that the $9, 000 earnest money being held by Parks be paid to Ms. White. The court denied Plaintiffs' motion for summary judgment on their claim to receive the $6, 200 commission generated from the sale of the Waterbrook property and ordered the clerk and master to distribute those funds to Parks.[5]

         Parks, Miller, and the Whites appeal. Parks and Miller contend that the court erred in granting judgment to Ms. White on her claim of undisclosed dual agency and in granting Carole Palmer 25 percent of the 3 percent commission. Mr. and Ms. White contend that the court erred in granting summary judgment to Miller and Parks on the TCPA claim, in denying their request for the $6, 200 commission on the Waterbrook property, and in dismissing Gregory White's claims for lack of standing.

         II. Standard of Review

         A party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. In Rye v. Women's Care Ctr. of Memphis, MPLLC, our Supreme Court set forth the appropriate standard for summary judgment motions:

[I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production by either (1) affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the moving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense. . . . "[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56], " to survive summary judgment, the nonmoving party "may not rest upon the mere allegations or denials of [its] pleading, " but must respond, and by affidavits or one of the other means provided in Tennessee Rule 56, "set forth specific facts" at the summary judgment stage "showing that there is a genuine issue for trial." Tenn. R. Civ. P. 56.06. . . . [S]ummary judgment should be granted if the nonmoving party's evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. . . .

477 S.W.3d 235, 264-65 (Tenn. 2015) (brackets in original). This court reviews the trial court's ruling on a motion for summary judgment de novo with no presumption of correctness, as the resolution of the motion is a matter of law. Rye, 477 S.W.3d at 250 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010)). We view the evidence in favor of the non-moving party by resolving all reasonable inferences in its favor and discarding all countervailing evidence. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Blair v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn. 2004).

         III. Analysis

         A. Dual Agency

         Our resolution of the majority of the issues on appeal revolves around the question of whether Mr. Miller functioned as dual agent for the Whites and the Nguyens; thus, we first address whether the court erred in granting Ms. White judgment on her claim of undisclosed dual agency. Dual agency "refers to a situation in which the licensee has agreements to provide services as an agent to more than one (1) party in a specific transaction and in which the interests of the parties are adverse." Tenn. Code Ann. § 62-13-102(8).

         Tennessee Code Annotated section 62-13-401 sets forth the requirement that a written agreement between a real estate licensee and a seller be entered into in order to establish an agency relationship:

A real estate licensee may provide real estate services to any party in a prospective transaction, with or without an agency relationship to one (1) or more parties to the transaction. Until such time as a licensee enters into a specific written agreement to establish an agency relationship with one (1) or more parties to a transaction, the licensee shall be considered a facilitator and shall not be considered an agent or advocate of any party to the transaction. An agency or subagency relationship shall not be assumed, implied or created without a written bilateral agreement that establishes the terms and conditions of the agency or subagency relationship. The negotiation and execution of either an exclusive agency listing agreement or an exclusive right to sell listing agreement with a prospective seller shall establish an agency relationship with the seller.

Tenn. Code Ann. § 62-13-401 (emphasis added). Inasmuch as the statute requires a written bilateral agreement to establish an agency relationship, we first look to the Breckenridge and Waterbrook Listing Agreements to resolve this issue.

         The Breckenridge Agreement identifies Parks as "Broker" and Robin White as "Owner/Seller"; Jack Miller signed the agreement as "Broker or Licensee Authorized by Broker". In Section D1 of the agreement, Mr. Miller is named "to be the Designated Agent to the Seller in this transaction."[6] In accordance with the requirements for establishing an agency relationship set forth in Tennessee Code Annotated section 62-13-401, the Breckenridge Agreement expressly designates Mr. Miller as agent and sets forth the terms of the respective agency relationship. Thus, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.