                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   February 2, 2004 Session

                DANNY R. BLALOCK v. CAROLYN S. BLALOCK

                       Appeal from the Circuit Court for Sevier County
                         No. 2001-458-III   Rex Henry Ogle, Judge



                     No. E2003-01151-COA-R3-CV Filed March 24, 2004


                    OPINION DENYING PETITION FOR REHEARING

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY , J.J., joined.


        These parties jointly owned a rental property. A “settlement agreement” was entered into
which provided that Husband would purchase Wife’s interest for $500,000.00 payable within one
year, the payment to be secured by a deed of trust. If the purchase price was not paid “in full in one
year” the “property shall immediately be placed at absolute auction and the parties will equally
divide the proceeds after all expenses and indebtedness.”

        We held that the buy-and-sell provision of the contract was never activated; that Husband
did not purchase the property; that Wife never tendered an instrument of conveyance; and that no
deed of trust was executed. We held that the parties agreed upon a different disposition of the
property, i.e., a sale at auction to the highest bidder, with the net proceeds to be divided.

        The property was sold at auction for $764,500.00. The net proceed of $244,429.00 were
awarded to Wife together with a judgment against Husband for $255,571.00 representing the
difference between the net proceeds and $500,000.00. We vacated the judgment and ordered that
the net proceeds from the auction sale be divided equally.

        Wife has filed a petition to rehear complaining that the net proceeds should not be equally
divided because “were an evidentiary hearing to have been held, Wife would have developed proof
that she contributed $198,000.00 for the initial purchase [of the motel].” Wife further alleges that
because the “settlement agreement” was unambiguous and adequately resolved all property issues
no evidence was offered respecting an equitable division of marital assets.

        Rule 39(a)(4), Tenn. R. App. P. provides that a petition to rehear may be granted where the
court’s opinion relies upon matters of fact or law upon which the parties have not been heard and
that are open to reasonable dispute. Wife asserts that there is “no proof in the record whatsoever to
support any division, let alone an equal one, of said monies.” We are constrained to disagree in light
of the parties’ agreement that “[i]n the event the $500,000.00 is not paid in full in one year the
property shall immediately be placed at absolute auction and the parties will equally divide the
proceeds after all expenses and indebtedness.”

       The petition to rehear is denied at the costs of the appellee.


                                                       __________________________________
                                                       WILLIAM H. INMAN, SENIOR JUDGE


                                                       __________________________________
                                                       HERSCHEL P. FRANKS, JUDGE


                                                       __________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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