                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   March 1, 2016 Session

  CLAYTON KELTNER, ET AL. v. ESTATE OF MARY LOIS SIMPKINS,
                           ET AL.

                Appeal from the Chancery Court for Cheatham County
                     No. 15920    Robert E. Burch, Chancellor

                           ________________________________

       No. M2014-02023-COA-R3-CV – Filed March 29, 2016
                     _________________________________


This appeal involves a dispute arising from the plaintiff’s attempted exercise of an option to
purchase a tract of land. In part, the contract provided that “a fair and equitable price for said
property will be established at a later date.” The trial court held that the option was not
enforceable because it was too vague with respect to price. The plaintiffs appealed. We
affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and KENNY ARMSTRONG, J., joined.

Joseph M. Barrett and Jordan B. Osborn, Dickson, Tennessee, for the appellants, Clayton
Keltner and Jacqueline Keltner.

B. Nathan Hunt and S. Allison Winters, Clarksville, Tennessee, for the appellees, Estate of
Mary Lois Simpkins, Keith Thomas, Connie Thomas, and Vicky D. Weikal.

                                           OPINION

                        I. BACKGROUND AND PROCEDURAL HISTORY

      On October 17, 2006, Clayton and Jacqueline Keltner contracted with W.W. and
Mary Lois Simpkins to purchase real property located in Cheatham County, Tennessee at
1401 Ross Hollow Road (“1401 Property”). The contract also purported to provide the
Keltners with an option to purchase adjacent tracts of land in the future. In pertinent part, the
contract stated:

        9.      Seller Grants and Buyer reserves an option to purchase any adjacent
                property now owned by the Seller if said property is ever placed on the
                general market for sale.

        10.     Seller Grants and Buyer reserves an option to purchase any adjacent
                property now owned by the Seller but subsequently transferred to the
                Seller’s children should Seller’s children ever place said property on the
                general market for sale.

        11.     Should Buyer exercise said option to purchase, a fair and equitable
                price for said property will be established at a later date.

       The property at issue in this lawsuit is located adjacent to the 1401 Property at 1455
Ross Hollow Road (“1455 Property”). When W.W. Simpkins died in August 2010, the 1455
Property passed to Mary Lois Simpkins by operation of law. Then, when Mary Lois
Simpkins died in September 2012, it passed to the Estate of Mary Lois Simpkins (the
“Estate”).

       Following the death of Mary Lois Simpkins, the Keltners offered to purchase the 1455
Property from the Estate for $140,000. Thereafter, Alan and Carrie Binkley submitted an
offer to purchase it for $165,000. The Estate gave the Keltners 24 hours to match the
Binkleys’ offer, but the Keltners declined to do so. On April 9, 2013, the Estate contracted
with the Binkleys to sell the 1455 Property for $165,000. On or around May 16, 2013, the
Keltners submitted written notice to the Estate that they intended to exercise their option to
purchase the 1455 Property for $140,000. The Estate rejected the Keltners’ offer, choosing
instead to move forward with the sale of the property to the Binkleys.

       On August 8, 2013, the Keltners filed a complaint in the Cheatham County Chancery
Court naming the Estate and the Binkleys as defendants.1 Among other things, the complaint
sought a declaration of the Keltners’ right to purchase the 1455 Property at a price deemed
fair and equitable by the trial court. The parties jointly requested that the trial court enter a
declaratory judgment addressing the validity of the October 2006 contract’s option provision.


1
  The Keltners voluntarily dismissed the Binkleys from the lawsuit after learning that the Binkleys revoked
their offer to purchase the 1455 Property in February 2014. Accordingly, the Keltners and the Estate are the
only parties to this appeal.

                                                   -2-
       The trial court heard oral arguments on the parties’ agreed motion for declaratory
judgment. On August 15, 2014, the trial court entered a memorandum opinion in which it
held that the option was not enforceable because it was too vague with respect to price:

       The purchase price for the exercise of the option (i.e., for it to become a
       contract of sale) is not stated in the option but left to the parties to agree upon
       at some future date. It is, therefore, “an agreement to agree.” For this reason,
       the option is unenforceable.

On September 8, 2014, the trial court entered an order incorporating its memorandum
opinion and certifying its ruling on the validity of the option language as final. The Keltners
filed a timely notice of appeal to this Court on October 2, 2014.

                                            II. ISSUE

       The Keltners raise the following issue on appeal, slightly restated:

       1.      Whether the trial court erred in ruling that the option language was
               unenforceable.

                                 III. STANDARD OF REVIEW

        The issue presented in this case requires the interpretation of a contract. The
interpretation of a written agreement is a matter of law. Hughes v. New Life Dev. Corp., 387
S.W.3d 453, 465 (Tenn. 2012). Our review of issues of law is de novo with no presumption
of correctness accorded to the decision of the trial court. Cracker Barrel Old Country Store,
Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).

                                       IV. DISCUSSION

        The only issue before us in this case is whether the October 2006 contract conferred
on the Keltners an enforceable option to purchase the 1455 Property. In the proceedings
below, the trial court held that the contract did not confer such an option because, without a
specified price term, the parties made only an “agreement to agree.” The Keltners argue that
the contract’s provision that “a fair and equitable price for said property will be established at
a later date” reflects the parties’ intent to provide a purchase price based on the property’s
fair market value.




                                               -3-
      This Court explained the manner in which an agreement without a specific price term
should be analyzed in Huber v. Calloway, No. M2005-00897-COA-R3-CV, 2007 WL
2089753 (Tenn. Ct. App. July 12, 2007):

             The difference between a valid contract and an unenforceable
      agreement requires consideration of two related concepts: an expression of the
      parties’ intent to be bound, and the definitiveness with which they state their
      terms. The courts’ initial task is to determine whether the written contract is
      ambiguous. If the contract’s language is plain and complete, the contracting
      parties’ intentions must be gathered from the language of the contract alone.
      Accordingly, when the parties have reduced their contract to writing, their
      intentions should be contained in the four corners of the contract, and the
      contracting parties’ rights and obligations should be governed by their written
      contract.

             Intent is revealed through an examination of the language chosen by the
      parties. This standard is an objective one, and the courts must determine intent
      by examining the meaning that a reasonable person would have derived from
      the words had such person been in the same situation as that of a party to the
      contract. The rules of contract construction come into play only when the
      court determines that the contract is ambiguous or incomplete. Contractual
      ambiguity arises only when contractual provisions may reasonably be read to
      have more than one meaning. It does not arise simply because the contracting
      parties interpret their contract differently. Thus, in the absence of fraud or
      mistake, the courts should construe unambiguous written contracts as they find
      them.

             Contracts that leave material terms open for further negotiations are
      generally too vague to be enforceable. However, the law does not favor the
      destruction of contracts, and a contract that lacks definitiveness of terms will
      be enforced if the terms can be reasonably ascertained from the language of the
      contract. Accordingly, where price is the unspecified material term, courts
      have enforced contracts that call for the price to be set by vague but
      ascertainable standards, such as “market price” or “prevailing rate.”

             Contract provisions should be considered in the context of the entire
      contract. In addition, the language used in a contract should be given its
      natural and ordinary meaning. The courts should avoid strained constructions
      of contractual language that create contractual ambiguities where none, in fact,
      exist.
                                            -4-
Id. at *3-4 (citations omitted).

        We cannot accept the Keltners’ assertion that “a fair and equitable price for said
property will be established at a later date” unambiguously reflects the parties’ mutual intent
to sell the 1455 Property at its fair market value. The Keltners contend that a “fair and
equitable price” is “one that is set solely on market factors.” However, the contract does not
provide that the “fair and equitable price” will be established by market factors. In fact, it
does not specify what person(s) or method will establish the “fair and equitable price.”
Rather, it provides only that the price “will be established.” As it often does, the parties’ use
of the passive voice in this instance led to vagueness. See Bryan A. Garner, Garner’s
Dictionary of Legal Usage 659 (3d ed. 2011). As the Keltners suggest, the contract may be
reasonably interpreted to provide for a purchase price based on the fair market value of the
property.2 However, as the Estate suggests, it may also be reasonably interpreted to provide
for a purchase price reached after further negotiation and agreement of the parties. As such,
we must conclude that the purchase price is not reasonably ascertainable from the plain terms
of the contract, and the option provision is therefore unenforceable.

                                             V. CONCLUSION

       In light of the foregoing, we affirm the judgment of the trial court. This matter is
remanded to the trial court for such further proceedings as may be necessary and are
consistent with this opinion. The costs of this appeal are taxed to the appellants, Clayton
Keltner and Jacqueline Keltner, and their sureties, for which execution may issue if
necessary.



                                                            _________________________________
                                                            ARNOLD B. GOLDIN, JUDGE




2
  Even accepting that the Keltners had a right to purchase the 1455 Property for its “fair market value,” we fail
to see how they would prevail given the facts of this case. The Binkleys were willing to pay $165,000 to
purchase the 1455 Property, and the Estate was willing to accept that amount for it. Moreover, the Binkleys’
loan application to purchase the property at this price was approved. Nothing in the record suggests that the
Binkleys’ offer was not legitimate. Accordingly, it appears that the fair market value of the 1455 Property was
$165,000. See BLACK’S LAW DICTIONARY 1785 (10th ed. 2014) (defining fair market value as “[t]he price
that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm’s length
transaction”). The Estate gave the Keltners the opportunity to purchase the 1455 Property at that price, and
they declined to do so.
                                                      -5-
