                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE


MEESE & ASSOCIATES, INC.,                  )
                                                                                 FILED
                                           )                                March 3, 1998
              Plaintiff/Appellant,         ) Campbell Chancery No. 14,073
                                           )                              Cecil Crowson, Jr.
VS.                                        ) Appeal No. 03A01-9705-CH-00197
                                                                          Appellate C ourt Clerk
                                           )
EDDIE POWERS and DAVID HICKS,              )
                                           )
              Defendants/Appellees.        )
                                           )
REBECCA CAR KIRKLIN,                       )
                                           )
              Intervening Plaintiff/       )
              Appellee,                    )
vs.                                        )
                                           )
MEESE & ASSOCIATES, INC.,                  )
                                           )
              Defendant/Appellant.         )


         APPEAL FROM THE CHANCERY COURT OF CAMPBELL COUNTY
                      AT JACKSBORO, TENNESSEE
              THE HONORABLE BILLY JOE WHITE, CHANCELLOR



A. THOMAS MONCERET
Knoxville, Tennessee
Attorney for Appellant


TERRY M. BASISTA
BASISTA, PRYOR & BALLOFF
Jacksboro, Tennessee
Attorney for Appellees, Eddie Powers and David Hicks
and Intervening Appellee, Rebecca Carr Kirklin




REVERSED AND REMANDED




                                                                 ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

WILLIAM H. WILLIAMS, Sr. J.
     Plaintiff, Meese & Associates, Inc. (“plaintiff”), appeals the judgment of the trial court
awarding Intervening Plaintiff/Appellee, Rebecca Kirklin (“Kirklin”), the real estate

commission for the sale of Defendants/Appellees’, Eddie Powers (“Powers”) and David

Hicks (“Hicks”) (collectively “defendants”), property by Kirklin.         For reasons stated

hereinafter, we reverse the decision of the trial court and remand.



       Defendants contracted with Kirklin of PM Realty for the sale of a piece of property

improved with a single-family home in the Fincastle community in Campbell County,

Tennessee. On November 14, 1994, defendants gave Kirklin exclusive authorization to

sell this property. Kirklin’s contract expired by its own terms on August 14, 1995. Kirklin’s

contract, however, contained an extension clause which provided:

              If the property is sold or exchanged by Owner, or by Broker or
              by any other person to any Purchaser to whom the property
              was shown by Broker or any representative of Broker within
              sixty (60) days after the expiration of the period of time
              mentioned above Owner agrees to pay to Broker a cash fee
              which shall be [six percent] of the purchase price . . .


       Thereafter, on August 21, 1995, defendants entered into a sales agency contract

with Meese to sell the same property. Present at the meeting were Meese, defendant

Powers, Patricia Sitton (“Sitton”), and Kenneth Falls. The contract between the defendants

and plaintiff gave plaintiff the exclusive and irrevocable right to sell the property but did not

become effective until August 24, 1995. This delay in time between execution of the

contract and the effective date was to allow plaintiff sufficient time to learn the identities of

potential buyers (also call “hot prospects”) from Kirklin so as to exclude such persons on

the exclusion list within the contract. This contract also provided for compensation to

plaintiff in the event the property was sold by any person other than the plaintiff.

Specifically, the contract provided in pertinent part:

              2. COMPENSATION TO AGENT. I hereby agree to
              compensate Agent, if during the term hereof or any extension
              thereof, the property is sold by Agent or any other person, or,
              if a sales agreement is obtained for the property by Agent or
              any other person with a buyer who is willing and able to
              purchase the property upon the price and terms herein set
              forth or any other price and terms [owner] may accept, or, if the
              property is withdrawn from sale, transferred, conveyed, leased
              without consent of Agent or made unmarketable by [owner’s]
              voluntary act.

The contract signed by defendants granting plaintiff the exclusive right to sell their property


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was a standard form contract used by real estate professionals. The defendants took

adequate time to review the contract.



       When defendants signed the contract making plaintiff their exclusive agent

concerning the sale of the property, defendant Powers indicated to Linda Meese (“Meese”),

as an agent for plaintiff, that this property had been previously listed by another broker.

Meese inquired as to the identities of any potential buyers existing under the former

contract with Kirklin. Plaintiff routinely excludes potential buyers who have dealt with

another broker upon learning the identities of those persons. This is accomplished by

allowing space within the contract in which to write a list of potential buyers in order to

exclude the possibility of commission by plaintiff’s agents if the property is sold to any of

the people enumerated on the list. There is some dispute as to whose responsibility it was

to gather the names of the potential buyers to be excluded from the contract between

plaintiff and defendants. Meese contends that defendant Powers told her that he did not

know the names of any potential buyers but would find out the identities of the individuals

and apprise her of them at a later date. Defendant Powers testified that Meese told him

that she would get the list of potential buyers from Kirklin. Kirklin testified twice, however,

that defendant Powers had told her that he would take care of providing Meese with the

lists of potential buyers.



       On August 24, 1995, without any entries placed in the exclusion provisions of the

plaintiff’s contract with defendants, defendant Powers told Meese and Sitton to “go ahead

and sell the property.” Upon plaintiff’s request, plaintiff began running television ads and

placing signs upon the property. Thereafter, however, the property was sold by Kirklin on

August 25, 1995. A closing was had and the monies from the real estate commission were

placed in escrow with Peoples National Bank of Lafollette pending the resolution of this

dispute between the brokers.



       At trial, the court awarded Kirklin the commission monies in escrow. The trial court

stated:



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              But Meese knew on August 21st that there was an expired
              contract with a holdover provision and hot prospects. They
              held up this contract for beginning execution of their contract
              until August 24th when they testified they received the call
              from Mr. Powers telling them to go ahead with the advertising.
              They put it in their computer and put it on the television for
              advertising. On the 25th, the very next day, a contract of sale
              was signed by Kirklin with the hot prospect. In my opinion,
              there is no question but as to the stake that Kirklin is entitled
              to the real estate fee. She is in no way in violation of any
              contract or agreement. She had a contract with a holdover
              provision. They are in all real estate contracts, and they are
              generally held to be enforceable. All the parties of these
              contracts knew about the holdover provision, and they all knew
              about the hot prospect. The only dispute between the parties
              really that has bothered me is that assuming that Mr. Powers
              should have contacted the real estate company or provided to
              them the names before the 25th and didn’t, I look to ascertain
              damages and would have granted the cost of the television
              add [sic] and one of the costs of the two multiple listing service
              expenses and nominal travel expenses. The pleadings would
              not justify that. Doing that would be going outside the
              pleadings in my opinion. The Court cannot do it. But I think
              that’s the equitable solution to this matter; that Mrs. Kirklin was
              perfectly in her rights to sell this property and collect the fees.



       The sole issue on appeal is whether the trial court erred by denying plaintiff’s right

to a real estate sales commission under plaintiff’s exclusive contract with appellee.



       The contract between plaintiff and defendants does not describe any agreement to

exempt a sale to any particular buyer from the commission to which plaintiff would be

entitled. The contract also recites that defendants read and understood it. Defendant

Powers signed this contract, an act which the reader of the contract would naturally

perceive as the manifestation of his assent to the terms contained therein. Consequently,

upon learning of the sale to the ultimate buyers on August 25, 1995, anyone relying

exclusively on the written provisions of the contract would believe that plaintiff’s agent was

entitled to a commission.



       Indeed, the fact that defendant Powers signed this version of the agreement creates

a rebuttable presumption, pursuant to Tenn. Code Ann. § 47-50-112, that the document

accurately reflects the complete and final agreement of the parties. The statute provides

in pertinent part:



                                              4
              Contracts to be enforced as written.--(a) All contracts,
              including, but not limited to, notes, security agreements, deeds
              of trust, and installment sales contracts, in writing and signed
              by the party to be bound, including endorsements thereon,
              shall be prima facie evidence that the contract contains the
              true intention of the parties, and shall be enforced as written;
              provided, however, nothing herein shall limit the right of any
              party to contest the agreement on the basis it was procured by
              fraud or limit the right of any party to assert any other rights or
              defense provided by common law or statutory law in regard to
              contracts.

Tenn. Code Ann. § 47-50-112(a)(1995).



       The statute provides that the presumption accompanying a signed written contract

does not preclude consideration of extraneous proof that the signature of the person to be

charged was “procured by fraud.” The statute also preserves the right to assert any other

defenses to the enforcement of the contract which are provided by either the common law

or statute.



       In the answer to the complaint, the defendants did not assert the defenses of fraud

or mistake, but instead chose to assert the affirmative defenses of equitable estoppel and

waiver. Rule 8 of the Tennessee Rules of Civil Procedure requires that “a party shall set

forth affirmatively facts in short and plain terms relied upon to constitute . . estoppel . . .

waiver.” In their answer, defendants’ plead estoppel and waiver which read as follows:

              Your Defendants aver affirmatively that the contract entered
              into with Meese and Associates, Inc. was entered into with the
              full knowledge of all of the parties that the Meese Contract
              would be subject to the potential sale of the property by
              Rebecca Carr Kirklin who was in fact the agent who procured
              the sale for Defendants. . . [t]he Defendants further assert the
              defense of estoppel, waiver, and breach of contract and
              agreement as further defenses to the Complaint.



       In this case, we deem defendants’ defense of waiver to be one of implied waiver.

The elements of implied waiver and equitable estoppel are one and the same.



       The essential elements are set out in Callahan v. Town of Middleton, 41 Tenn.App.

21, 292 S.W.2d 501 (1954):

              The essential elements of an equitable estoppel as related to


                                              5
              the party estopped are said to be (1) Conduct which amounts
              to a false representation or concealment of material facts, or
              at least, which is calculated to convey the impression that the
              facts are otherwise than, and inconsistent with, those which
              the party subsequently attempts to assert; (2) Intention, or at
              least expectation that such conduct shall be acted upon by the
              other party; and (3) Knowledge, actual or constructive, of the
              real facts. As related to the party claiming estoppel they are:
              (1) lack of knowledge and of the means of knowledge of the
              truth as to the facts in question; (2) reliance upon the conduct
              of the party estopped; and (3) action based thereon of such a
              character as to change his position prejudicially.

Callahan v. Town of Middleton, 41 Tenn.App. 21, 292 S.W.2d 501 (1954); See Consumer

Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990).



       Estoppel is not favored and it is the burden of the party seeking to invoke the

doctrine to prove each and every element thereof. Elvis Presley Enterprises, Inc. v. Elvisly

Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991); Bokor v. Holder, 722 S.W.2d 676, 680

(Tenn. Ct. App. 1986).



       Furthermore, for estoppel to arise, the act complained of must have been done with

knowledge that it would be relied upon and the other party has to have acted in reliance

without either knowledge of the true state of affairs or the means of learning the true state

of affairs. City of Lebanon v. Baird, 756 S.W.2d 236, 244 (Tenn. 1988).



       In the case under submission, we are of the opinion that defendants have failed to

carry the burden imposed upon them to invoke either the doctrines of equitable estoppel

or implied waiver. There is no proof that plaintiff’s agents made a false representation as

to a past or present fact or concealed material facts from defendant. Defendants state that

plaintiff entered into their contract with defendants with full knowledge of all the parties that

plaintiff’s contract would be subject to the potential sale of the property by Kirklin.

Specifically, defendants claim that Meese represented that Kirklin would be compensated

if she sold the property.

              Q. And all of that was done in the context of Mr. Powers
              having told you that Mrs. Kirklin had some hot prospects and
              it was clear to you that he understood that if she sold to one of
              those prospects, she would get commission?



                                               6
              A. I didn’t have a problem with that.

              Q. Was it not clear to you in the context of what you said
              earlier that Mr. Powers understood and believed that if this
              property was sold by Mrs. Kirklin to one of these hot prospects
              that he told you she had, that she would get the commission?

              A. He asked me, if she brings in a buyer, whether it was a hot
              prospect -- if she brings in a buyer, is she going to get paid a
              commission, and I said -- well, I work with all licensed real
              estate agents and compensate all sales agents, and I said
              sure.

Defendants contend that this is illustrative of the fact that plaintiff understood that its

contract was subject to a sale by Kirklin to a potential buyer. Consequently, defendants

contend that plaintiff is estopped from now claiming that it should get a commission from

Kirklin’s sale and has waived any reliance upon the failure of defendant Powers to have

specific names for consideration, either by means of plaintiff’s failure to actively facilitate

this effort to acquire the names of potential buyers or by means of their negligent

indifference thereto. W e cannot agree with this reasoning.



       The above statements by Meese were made in the context of a contract which

stated that plaintiff was to receive commission for a sale of the property if sold by an agent

of plaintiff or any other person and that included a listing space for “hot prospects” to be

excluded from the contract. It is undisputed that plaintiff had no problem allowing Kirklin

to obtain the commission for a sale to a “hot prospect” enumerated within the list of

exclusions. Additionally, plaintiff testified that even if Kirklin sold the property, she would

be “compensated” with .024 percent of the sales price of the property as she does all

licensed real estate agents who sell one of her properties. In context, we find that these

representations were not false and no facts were concealed from defendants.



       Furthermore, defendants have failed to carry their burden in respect to proving that

they had a lack of knowledge or the means of knowledge of the truth as to the facts in

question. The pivotal fact in question is whose responsibility it was to procure the names

of potential buyers in order to place these names within the commission exclusion

provision in plaintiff’s contract with defendants.




                                              7
       We note that if defendants had obtained the names of potential buyers from Kirklin,

defendants could have made sure that such names were included in the commission

exclusion provision of the contract. Knowledge of the identities of “hot prospects” was

equally available to defendants as to plaintiff and its agents. As mentioned above,

defendants contend that Meese took upon herself the responsibility of acquiring the names

of “hot prospects” from Kirklin. However, the great weight of the testimony preponderates

otherwise. The ultimate buyers of the property signed a disclosure statement of August

16, 1995, stating that they were aware that Kirklin was representing the seller. Kirklin was

aware that plaintiff had a contract with defendants on August 21, 1995. When asked why

she never advised plaintiff of the identities of these potential and ultimate buyers of the

property, Kirklin stated that defendant Powers said that “he had done that.” In fact, Kirklin

testified that she had given defendant Powers the names of two couples whom she

considered “hot prospects” and that there was no reason why defendants could not relay

that information to plaintiff. Kirklin went on to testify that she was called one night by

plaintiff’s agent, Sitton. Specifically, she testified:

               A. My husband shared with me that I received a call from Ms.
               Sitton. And I got home late that evening. So when I got in that
               evening, I called Mr. Powers to tell him. And I told him that she
               had called and did I need to call and give that person those
               lists of names, and he said no, that he had taken care of that.

The lists of names that defendant Powers claims “he had taken care of” is what is fatally

absent from the commission exclusion provision in the contract.



       As mentioned above, the trial court stated that plaintiff was aware of the holdover

provision and was told that there were “hot prospects,” and, as a result was not allowed to

collect the commission on the contract. After a review of the record, we find that there is

no evidence that plaintiff was aware of a holdover provision in the particular contract

defendants maintained with Kirklin. Plaintiff may well have been aware that holdover

provisions were common in real estate contracts, but evidence concerning their knowledge

of a holdover provision in this particular contract is scant at best. In fact, plaintiff’s agents

never saw defendants contract with Kirklin and interpreted defendant Powers’ statement

that his contract with Kirklin had expired to mean that the contract, in its entirety, had



                                                8
lapsed.



       Furthermore, the fact that plaintiff was aware of the existence of “hot prospects”

does not in and of itself deny them a commission under the terms of their contract with

defendants. In fact, it is uncontroverted that plaintiff’s contract allowed for such “hot

prospects” to be listed in order to exclude plaintiff’s agents from receiving a commission

in the event of a sale to one of these “hot prospects” by Kirklin. As mentioned supra,

defendants contend that plaintiff’s agents were supposed to acquire the identities of these

“hot prospects” from Kirklin; however, the evidence preponderates otherwise.



       The defendants did not assert fraud or mistake in their complaint, and as mentioned

above, defendants have failed to carry their burden in proving waiver and equitable

estoppel. As such, we have two contracts for the sale of real property in Campbell County,

Tennessee. Defendants were afforded sufficient opportunity in which they could choose

to advise the plaintiff and its agents of “hot prospects” already dealing with Kirklin. Kirklin

testified twice that defendant Powers had told her that he had assumed the responsibility

to supply plaintiff with the identities of these “hot prospects.” Defendants’ failure to identify

the “hot prospects” prompted the execution and effective date of the real estate contract

with plaintiff without the listing of any exclusions. Because of the absence of such

exclusions and because of the failure of defendants to set forth any valid defenses, the

intentions of the parties must be limited those intentions manifested within the four corners

of the writing itself. It is well settled in Tennessee that “a court is not at liberty to make a

new contract for parties who have spoken for themselves.” Smithart v. John Hancock Mut.

Life Ins. Co., 167 Tenn. 513, 525, 71 S.W.2d 1059, 1063 (Tenn. 1934); See also Stone v.

Martin, 185 Tenn. 369, 374, 206 S.W.2d 388, 390 (Tenn. 1947). “Parties to a contract are

free to allocate risks and burdens between themselves as they see fit.” Brown Bros., Inc.

V. Metro Gov. Of Nashville and Davidson County, 877 S.W.2d 745, 749 (Tenn. Ct. App.

1993). In Dobbs v. Guenther, 846 S.W.2d 270, 276 (Tenn. Ct. App. 1992), this Court

stated that “courts will not create or rewrite a contract simply because its terms are harsh

or because one of the parties was unwise in agreeing to them.”



                                               9
       We conclude that the evidence preponderates against the findings of the trial court.

We find that the trial court erred in refusing to award a commission to plaintiff. The

evidence of implied waiver and equitable estoppel is meager, and the result, however

undesirable, is one where defendants have created for themselves liability on both their

contract with Kirklin and their contract with plaintiff.



        In light of the foregoing, we reverse the judgment of the trial court. This case is

remanded for proceedings necessary and consistent with this opinion. Costs of this appeal

are taxed to defendants, for which execution may issue if necessary.




                                                           HIGHERS, J.

CONCUR:



CRAWFORD, P.J., W.S.



WILLIAMS, Sr. J.




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