                     IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                  ______________________________________________

DICK MOORE, INC.,

       Plaintiff-Appellant,
                                                      Shelby Law No. 74748    FILED
Vs.                                                   C.A. No: 02A01-9707-CV-00148
                                                                         November 18, 1998
GREENTREE FINANCIAL
CORPORATION,                                                                 Cecil Crowson, Jr.
                                                                              Appellate C ourt Clerk
      Defendant-Appellee.
____________________________________________________________________________

                    FROM THE SHELBY COUNTY CIRCUIT COURT
                    THE HONORABLE JAMES F. RUSSELL, JUDGE




                 R. Layne Holley; McNabb, Holley & Waldrop of Memphis
                                     For Appellant

                    Roger A. Stone; Stone, Higgs & Drexler of Memphis
                    Joel E. Jordan; Steltemeier & Westbrook of Nashville
                                         For Appellee




                              AFFIRMED AND REMANDED

                                         Opinion filed:




                                                              W. FRANK CRAWFORD,
                                                              PRESIDING JUDGE, W.S.




CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE

       This case involves a dispute involving the assignment of retail installment contracts.

Plaintiff-Appellant, Dick Moore, Inc. (Dick Moore), appeals from the trial court’s order granting

Appellee’s, Green Tree Financial Corporation (Green Tree), motion for summary judgment.
        Dick Moore, a Tennessee corporation, entered into a dealer agreement with Green Tree,

a foreign corporation doing business in Tennessee. Under such agreement, Green Tree would

periodically buy from Dick Moore retail installment contracts generated by the sale of

manufactured homes in connection with Dick Moore’s business. The agreement provides, as

pertinent to our inquiry:

               TO: GREEN TREE              ACCEPTANCE,          INC.    (OR    ITS
               SUBSIDIARY)

               Green Tree Financial Corp. - MS
               Jackson, MS

               Gentlemen:

                       We desire from time to time to sell you conditional sales
               contracts, chattel mortgages, security agreements or other title
               restraining or lien instruments (hereinafter collectively referred to
               as “Contracts”) evidencing the retail sale of mobile homes or
               manufactured homes (hereinafter referred to as “Property”) on the
               following terms and conditions:

               1. The purchase price of each Contract acceptable to you shall be
               an amount equal to the total of payments thereof less your charges
               thereon as agreed upon, and less any chargs stated in each
               Contract for any insurance policies to be placed by you. At the
               time of purchase, you shall pay to us an amount to be agreed
               upon. If any Contract assigned and/or endorsed to you by us does
               not bear a rate of finance charge acceptable to you, we agree that,
               at your sale option, we will tender to you an amoutn necessary to
               bring the rate of finance charge to a level acceptable to you.

                               *               *               *

This was not an exclusive arrangement as Dick Moore had arrangements with several other

lenders at this time and financed many sales directly.

        Under the above agreement, Dick Moore assigned thirty-four contracts to Green Tree

between May 1994 and August 1995. Generally the transaction proceeded as follows. Dick

Moore would notify Green Tree after arranging a sale to a customer. Green Tree would then

send a letter detailing its financing terms along with general and specific conditions for each

applicant. After receipt of this from Green Tree, Dick Moore would gather the information

required by Green Tree and then would tender this information along with the contracts to Green

Tree.

        During this arrangement, Dick Moore discovered that periods of time were elapsing

between the tendering of the contracts to Green Tree and the receipt of payments from Green



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Tree. Green Tree claimed that the delays resulted from Dick Moore’s failure to provide, in a

timely manner, documentation it required to insure the contract was in compliance with its

funding conditions. After this had continued for some time, Dick Moore insisted that Green Tree

pay interest on the late payments for the contracts. Green Tree refused prompting Dick Moore

to file this suit for breach of contract and conversion.

       Presented with motions for summary judgment by both parties, the trial court granted

Green Tree’s motion while denying Dick Moore’s motion. The trial court granted summary

judgment on grounds that the dealer agreement did not specify a payment date independent of

the date of purchase nor did it provide for the accrual of interest between the time of tender and

the time of payment. Dick Moore has appealed, and the only issue for review is whether the trial

court erred in granting Green Tree’s motion for summary judgment.

       A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine
               issue of material fact, the nonmoving party must then
               demonstrate, by affidavits or discovery materials, that there is a
               genuine, material fact dispute to warrant a trial. In this regard,
               Rule 56.05 provides that the nonmoving party cannot simply rely
               upon his pleadings but must set forth specific facts showing that
               there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

        Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).


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        Dick Moore’s action is premised on the dealer agreement between the parties. The

interpretation of a written agreement is a matter of law and not of fact. APAC-Tennessee v. J.

M. Humphries Constr. Co., 732 S.W.2d 601, 604 (Tenn. App. 1986). The cardinal rule for

interpretation of contracts is to ascertain the intention of the parties from the contract as a whole

and to give effect to that intention consistent with legal principles. Winfree v. Educators Credit

Union, 900 S.W.2d 285, 289 (Tenn. App. 1995); Rainey v. Stansell, 836 S.W.2d 117 (Tenn.

App. 1992). In construing contracts, the words expressing the parties’ intentions should be given

their usual, natural, and ordinary meaning. Taylor v. White Stores, Inc., 707 S.W.2d 514, 516

(Tenn. App. 1985). In the absence of fraud or mistake, a contract must be interpreted and

enforced as written, even though it contains terms which may seem harsh or unjust. Heyer-

Jordan & Assocs. v. Jordan, 801 S.W.2d 814, 821 (Tenn. App. 1990).



        Under the agreement, Green Tree purchased only the contracts acceptable to it and as

noted makes the decision to purchase only after review of various documents that Dick Moore

is required to furnish. The major part of the dealer agreement pertains to the rights and

responsibilities of the parties after a contract is purchased. Essentially, as to the purchase of the

contract, the agreement is merely an agreement to possibly agree. The trial court noted the

absence of a provision for payment other than the purchase date. The dealer agreement simply

does not create a binding agreement for the purchase of the contract, and the only binding

agreement comes into existence with the purchase of each contract. The dealer agreement is, at

best, a conditional contract.

        “‘A conditional contract is a contract whose very existence and performance depends

upon the happening of some contingency or condition expressly stated therein.’” Covington v.

Robinson, 723 S.W.2d 643, 645 (Tenn. App. 1986) (quoting Real Estate Management, 41

Tenn. App. at 353, 293 S.W.2d at 599). A condition precedent may be a condition which must

be performed before the parties’ agreement becomes a binding contract, or it may be a condition

which must be fulfilled before the duty to perform an existing contract arises. Strickland v. City

of Lawrenceburg, 611 S.W.2d 832, 837 (Tenn. App. 1980). No liability under the contract

attaches to either party until such condition precedent is fulfilled. Id. The parties to a contract

may accept the terms of such contract and make the contract conditional upon some other event


                                                 4
or occurrence. Disney v. Henry, 656 S.W.2d 859, 861 (Tenn. App. 1983).

       Under the dealer agreement and the subsequent letters and instruments which were a part

of each transaction, Green Tree’s acceptance for purchase was contingent on Dick Moore’s

fulfillment of conditions required by Green Tree. As previously stated, under the arrangement,

Green Tree would send Dick Moore a laundry list of conditions that had to be met before Green

Tree would purchase the contract. The credit approval letter Green Tree sent to Dick Moore for

each applicant expressly stated: “Provided you and the prospective purchaser meet the

conditions described below, we agree to acquire from you the applicant’s retail installment

contract in connection with the purchase by the applicant of the above described property.” The

credit approval letter further provided: “Stated terms of credit approval are subject to standard

Green Tree underwriting requirements. Terms of credit approval are subject to change by Green

Tree without prior notice to Dealers or Customers.”

       Until Green Tree was assured that each condition had been met, Green Tree did not find

the contract acceptable for purchase. The record is replete with instances in which some of the

conditions were not fulfilled until further documentation was received and with instances in

which Green Tree required further information before purchasing some of the contracts.

       This was not an exclusive arrangement between the parties. Dick Moore was under no

obligation to sell the contracts to Green Tree. If Dick Moore was unhappy with the way Green

Tree conducted its business, it had an array of other lenders to which it could have sold the

contracts. As a matter of fact, there was nothing in the arrangement that prevented Dick Moore

from withdrawing the contract before Green Tree’s agreement to purchase. Furthermore, Green

Tree was under no obligation to purchase the contracts until the conditions were fulfilled and it

was satisfied with the deal. As provided for by the dealer agreement, there was no binding

contract between the parties until Green Tree agreed to purchase the contract from Dick Moore.

Until all conditions had been met and Green Tree was satisfied with such, there was no

acceptance on the part of Green Tree. Thus, any delay Green Tree exercised before purchasing

the contracts did not constitute a breach of contract under the circumstances of the arrangement

between the parties.

       Moreover, the dealer agreement provides for payment at the time of purchase of an

amount agreed upon. In each of the transactions, Dick Moore accepted the purchase price paid


                                               5
by Green Tree without voicing disagreement at the time of payment. Bearing in mind that Dick

Moore was under no obligation to sell the contract to Green Tree, and considering the language

of the agreement calling for payment of an amount agreed upon, the payment by Green Tree and

the acceptance by Dick Moore establishes the agreed amount.

       Accordingly, the order of the trial court is affirmed, and the case is remanded for such

further proceedings as necessary. Costs of appeal are assessed against the appellant.




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