IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 23, 2014 Session

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1 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 23, 2014 Session WILLIAM D. STALKER, ET AL. v. DAVID R. NUTTER, ET AL. Appeal from e Chancery Court for Sumner County No. 2008C1 Tom E. Gray, Chancellor No. M COA-R3-CV - Filed August 21, 2014 In is non-jury case, builders of a home appeal e dismissal of eir breach of contract claim against e prospective buyers, e court s determination at e builders breached e construction and sale agreement, and e order awarding e earnest money deposit to e buyers. Finding no error, we affirm e trial court s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of e Chancery Court Affirmed. RICHARD H. DINKINS, J., delivered e opinion of e court, in which ANDY D. BENNETT and W. NEAL MCBRAYER, JJ., joined. Stephen E. Grauberger, Mt. Juliet, Tennessee, for e appellants, William D. Stalker and Stephen L. Young. John R. Phillips, Jr. and Brandon R. Meredi, Gallatin, Tennessee, for e appellees, David R. Nutter and Tamara D. Nutter. MEMORANDUM OPINION 1 This case, wherein William Stalker and Stephen Young, builders of a home ( Plaintiffs ) which David and Tamara Nutter ( Defendants ) had contracted to purchase, sued Defendants for breach of contract, is before e court for e second time. The facts underlying e case and procedural history are found at Stalker v. Nutter, No. M Tenn. R. Ct. App. 10 states: This Court, wi e concurrence of all judges participating in e case, may affirm, reverse or modify e actions of e trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated MEMORANDUM OPINION, shall not be published, and shall not be cited or relied on for any reason in any unrelated case.

2 COA-R3-CV, 2013 WL (Tenn. Ct. App. Apr. 19, 2013). In e first appeal, we affirmed e trial court s decision to allow Defendants to amend eir answer to assert a counterclaim and vacated e judgments ordering Plaintiffs to return Defendants earnest money deposit and awarding Defendants eir attorney fees and costs. The case was remanded for e court to make detailed findings of fact and conclusions of law in accordance wi Tenn. R. Civ. P (2) and relative to e determination at Plaintiffs breached e Purchase and Sale Agreement. Pursuant to e order of remand, e trial court issued a Memorandum on August 29, 2013, making findings of fact and conclusions of law; e court subsequently entered a Final Order and Judgment dismissing Plaintiffs claim, holding at Defendants were entitled to e return of eir earnest money, and holding at Defendants were entitled to eir 2 reasonable attorney fees and expenses. Plaintiffs appeal, asserting e following issues: 1. Wheer e trial Court erred in finding e Plaintiffs failed to prove a breach of contract by Defendants. 2. Wheer e trial Court erred in finding at Plaintiffs breached e contract. DISCUSSION I. STANDARD OF REVIEW Our scope of review for factual findings made by a trial court sitting wiout a jury is de novo, accompanied by a presumption of correctness, unless e preponderance of e evidence is oerwise. Tenn. R. App. P. 13(d); Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006). If e trial court made no specific findings of fact, en we must look to e record to determine where e preponderance of e evidence lies. Forrest Construction Co., LLC v. Laughlin, 337 S.W.3d 211, 220 (Tenn. Ct. App. 2009). We review a trial court s conclusions of law de novo, wi no presumption of correctness. Kaplan, 188 S.W.3d at 635. II. ANALYSIS The trial court made e following findings relative to e causes of action for breach of contract: 2 The court did not enter judgment for Defendants for fees and costs in light of e fact at Defendants claim against Plaintiffs had been discharged in bankruptcy. 2

3 The Court finds at e Plaintiffs were building a speculative home on real property known as 129 Bay Drive in Hendersonville, Sumner County, Tennessee. Defendants/Counter-Plaintiffs, David R. Nutter and Tamara D. Nutter became interested in purchasing e property. On or about e 10 day of April, 2007 e builders, William D. Stalker and Stephen L. Young and e Nutters entered into a New Construction Purchase and Sale Agreement for e sale of e property and e partially built home at 129 Bay Drive, Hendersonville, Tennessee. Pursuant to e Agreement e Nutters remitted an earnest money deposit in e amount of $10, on e 10 day of April, The purchase price was $1,850, and e closing date was set for e 30 day of September, The Agreement provided at any change or alteration to e house must be submitted in writing and signed by Builders, Stalker and Young and e Nutters. nd On e 22 day of May, 2007, e Nutters entered into a written modification of e 10 day of April, 2007, Agreement. This Modification/Addendum provides among oer changes for an increased final sales price of $1,870, After execution of e Modification/Addendum Plaintiffs/Counter- Defendant began to issue change orders and demanding payments over and above at negotiated in e Final Contract price of $1,870, Construction work which e parties had previously agreed would be included in e Final Contract price of $1,870, was charged by Builders. The home was to close on or before e 30 day of September, The house was not completed for closing on e 30 day of September, st Extension to e 31 day of October, 2007 was granted by e buyer, David and Tamara Nutter. The house was not completed in October, The Nutters were to obtain a loan in e principal amount of 90% of e purchase price. The Nutters had not been able to secure a commitment of 90% from any lenders by e 30 day of September, The parties agreed (Section 24D) at time is of e essence of is agreement. 3

4 The Plaintiffs/Counter-Defendants did not have e residence completed at 129 Bay Drive, Hendersonville, TN on or before e 30 day of September, 2007; and e residence was not completed before e 30 day of October, 2007; it was not completed in January, Defendant/Counter-Plaintiff by e 30 day of September, 2007 had not obtained financial commitment for in principal amount of 90% of e purchase price, but is did not constitute a Breach of Contract. The contractual provisions related to ese issues are set for in Sections 3 and 26 of e New Construction Purchase and Sale Agreement which provide in pertinent part: Section (3) Deposit Money Buyer has or will pay wiin 20 days after e Binding Agreement Date to RE/MAX Elite ( Holder ) located in Franklin, TN a deposit of $10, by check. Holder shall reimburse Deposit Money only as follows: (a) At closing; (b) Upon a written agreement signed by all parties having an interest in e funds; (c) Upon order of a court or arbitrator having jurisdiction over any dispute involving e Earnest Money; (d) Upon a reasonable interpretation of e Agreement; or (e) Upon e filing of an interpleader action wi payment to be made to e clerk of e court having jurisdiction over e matter. Plaintiff/Counter-Defendant overcharged change order payments. They claimed $95, and demanded payment claiming at non-payment was justification not to complete according to e contractual provisions. Plaintiff/Counter-Defendants claimed $95, was owed and ey admitted at $95, was wrong by at least $35,

5 In Section 26 of e Agreement states at if e Buyer defaulted e Deposit Money would be forfeited and e Seller may sue in Contract or tort for additional damages including reasonable Attorney fees. The Section 26 reads also at if Seller should default Buyer may sue for damages including reasonable Attorney fees. Section 26 Default. Should Buyer default hereunder, e Deposit Money shall be forfeited as partial liquidated damages to e Seller and Seller may sue, in contract or tort, for additional damages or specific performance of e Agreement, or bo. Should Seller default, Buyer s Deposit Money shall be refunded to e Buyer and Buyer may sue, in contract or tort, for damages or specific performance of is Agreement, or bo. In e event at any party hereto shall file suit for breach or enforcement of is Agreement (including suits filed after closing which are based on or related to e Agreement), e prevailing party shall be entitled to recover all costs of such enforcement, including reasonable Attorney s fees. Plaintiffs cite e testimony of Mr. Stalker, project manager Christopher Wilson, and eir listing agent John Pegram to show at Defendants breached e contract by failing to pay for e requested change orders and by failing to complete e purchase of e home. Wi respect to Plaintiffs argument at Defendants breached e contract by not 3 complying wi e change order provision at Section 9 of e contract, e testimony of Mr. Stalker and Mr. Wilson was at e Plaintiffs did not insist on compliance wi Section Change Orders. Buyer agrees at any request for changes or alterations ( change orders ) to e residence will be set for in writing and delivered to Seller. Any requested change order must be in writing and signed by Buyer and Seller. No subcontractor, workman, or material man has auority to agree on behalf off Seller in any change order. Buyer agrees at all change orders requests must be presented to Seller so as to allow Seller adequate lead time to schedule e change orders into e normal building sequence. Seller has e right to refuse to make changes/alterations at are requested. Buyer agrees to pay Seller in advance of e performance of work necessitated by agreed change orders and furer understands at ere will be no refund, under any circumstances, of payment made by Buyer for change orders. Buyer furer acknowledges at any work done on e home pursuant to change orders or additions may not increase e appraised value of e Property. Seller shall not be responsible if increased in e price of e Property due to change orders or additions are not reflected in e appraised value of (and resulting available loan for) e Property. 5

6 and made requested changes wiout e necessity of a writing or being paid in advance; e testimony supports e court s determination at Defendants did not breach e contract first. The contract contained a closing date of September 30, 2007; Section 10 of e contract, headed Delays, provided at e closing date could be extended to no later an 30 days after e closing date in e event of delays caused by, inter alia, Buyers change orders or selection of materials. Mr. Stalker testified at e change orders and delays in selecting materials delayed completion of e home by ree mons, as a result of which e home was not completed by October 31, Plaintiffs, however, had e right, under Section 9 of e contract, to refuse to make e changes or alterations and chose not to do so; Defendants actions, as found by e court, were not a breach of e contract and do not excuse Plaintiffs failure to complete e home by e contract date. We have reviewed e evidence cited by e parties as well as e exhibits introduced in e trial; e evidence does not preponderate against e trial court s findings at Plaintiffs breached e contract by not completing e house by e closing date and at Plaintiffs sought payment for change orders in which ey overcharged e Defendants. Plaintiffs also contend at e trial court erred in awarding Defendants e $10, earnest money deposit; we disagree. Section 26 of e contract provided at if e seller defaulted, e buyer would be entitled to e earnest money deposit in addition to e right to sue for oer damages or specific performance of e contract. The award was in accordance wi e contract and e finding at Plaintiffs breached e contract. CONCLUSION For e foregoing reasons, we affirm e judgment of e trial court. RICHARD H. DINKINS, JUDGE 6