                   IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
              ---------------------------------------------------------------------------



                                                                          FILED
                                                                            Dec. 16, 1997

                                                                          Cecil Crowson, Jr.
JOAN DOUGLAS and                                )                           Appellate Court Clerk
GERMANTOWN REALTY, INC.,                        )
d/b/a COLDWELL BANKER,                          )
                                                )        SHELBY CHANCERY
      Plaintiffs\Appellants                     )
v.                                              )
                                                )
FRANK TIBBS and                                 )        Appeal No. 02A01-9602-CH-00033
AFSAMEH M. TIBBS,                               )
                                                )
      Defendants\Appellees                      )




        APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                     AT MEMPHIS, TENNESSEE
             THE HONORABLE FLOYD PEETE, CHANCELLOR




JAMES H. KEE                                             J. MICHAEL FLETCHER
780 Ridge Lake Boulevard, Ste. 202                       5583 Murray Avenue, Suite 100
Memphis, TN 38120                                        Memphis, TN 38119
Attorney for Appellant                                   Attorney for Appellee




REVERSED and REMANDED

                                                WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY LILLARD, JUDGE
                                          OPINION
                                             I

       This action to recover a commission on the sale of real estate was dismissed

at the close of the plaintiff’s case. She appeals and presents for review the propriety

of the dismissal of her case.

       Subject real estate was purchased by the defendants in 1985. Four years

later they listed the property with the plaintiff, a licensed agent. The listing remained

effective but unfruitful until 1991 when the owners selected another realty firm (Mills),

and listed the property with it, which also proved to be unfruitful.

       When the Mills listing expired, the plaintiff arranged a six-months lease of the

property with Willingham. Upon the expiration of the lease the owners again listed

the property with the plaintiff for a period beginning March 26, 1992 and ending

September 26, 1992, at a price of $335,000.00. This listing was extended to April 2,

1993 at a reduced price of $310,000.00.

       During the listing period, in early 1993, Gary Davis contacted the plaintiff and

expressed an interest in purchasing subject property. She verified Davis’

employment and credit history and reported her findings to the defendants.

       Davis testified that from the beginning he intended to purchase the property

but delayed doing so until certain other obligations were resolved. As a furtherance

of his intention he negotiated, through the plaintiff, a lease with option to purchase

agreement with the defendants and made a security deposit of $2,200.00 and an

earnest money payment of $10,000.00. When certain other obligations were

resolved he made an application for a loan at Union Planters Bank in early 1994.

This loan was refused. The defendants suggested a California lender might be

receptive to a loan application, or failing that, the local National Bank of Commerce

might consider a loan to Davis.

       The option held by Davis expired March 31, 1994.

       The California lender rejected Davis’ loan application in April, 1994.

       The plaintiff continued her efforts to arrange a loan for Davis, and conferred

with the defendants on April 26 and May 3, 1994 about processing the application



                                            2
with the National Bank of Commerce. In the meantime the Davis’ continued to reside

in the house. The plaintiff assumed that the option had been extended, and the

defendants at no time informed her to cease her agency activities.

       In August, 1994, the plaintiff was informed by Davis to prepare a new contract

for National Bank of Commerce, and contacted the defendants, who told her that

“the deal was off, there was no deal, that I was not involved.”

       Davis testified that shortly after he made application to the California lender he

talked with the defendants about his continuing residency in the house, and that he

and the defendants orally agreed to extend the option for six months. He testified

that the defendants said nothing about the plaintiff being no longer involved, and he

continued to discuss his loan application at National Bank of Commerce with her

throughout the summer of 1994. The oral extension was confirmed by letter dated

July 1, 1994 from the defendants to Davis.

       The defendants sold the property to Davis on October 3, 1994 for

$305,000.00. Credit for the security deposit of $2,200.00 and the earnest money

payment of $10,000.00 was given to Davis by the defendants.

       The plaintiff sought to recover a sales commission on two theories: (1) after

Davis’ option to purchase expired, the plaintiff, with the defendants’ approval,

continued her efforts to assist Davis in procuring a loan to purchase the property

which constituted an implied renewal of the defendants’ agreement to pay her a

commission, and (2) quantum meruit. An additional ground for recovery, constructive

fraud, is asserted for the first time, on appeal, which we cannot consider.

       The Chancellor dismissed the plaintiff’s case, upon motion, because (1) the

plaintiff admitted “there was no contract in existence at that time,” (2) the plaintiff

admitted that as of April 2, 1994 she had no willing buyer, and that the defendants

“could have told her the deal was off,” (3) there was insufficient proof that the listing

agreement was extended.

       To put the undisputed facts in perspective, we reiterate that the original option

held by Davis expired March 31, 1994, and that it was extended for six months,

culminating in its exercise and the subsequent sale of the property to the defendants



                                             3
on October 3, 1994. So far as the record reveals there is little doubt that the sale

was facilitated by the efforts of the plaintiff.

                                               II

       In a bench trial a motion to dismiss should be denied if the plaintiff has

established a prima facie case. City of Columbia v. C.F.W. Const. Co., 557 S.W.2d

740 (Tenn. 1977). Our review of the findings of fact made by the trial court is de

novo upon the record of the trial court, accompanied by a presumption of the

correctness of the finding, unless the preponderance of the evidence is otherwise.

TENN. CODE ANN . § 50-6-225(3)(2), Stone v. City of McMinnville, 896 S.W.2d 584

(Tenn. 1991), but no presumption attaches to legal conclusions or when the

conclusions are based on undisputed facts. National Bank of N.C. v. Thrailkill, 856

S.W.2d 150 (Tenn. App. 1993).

       The plaintiff argues that the transaction was ultimately closed pursuant to the

exercise of an extension of the option by Davis granted after the expiration of the

listing period and the original option period, which justifies the litigant’s conclusion

that the defendants impliedly renewed the agreement to pay the plaintiff a

commission in the event Davis purchased the property.

       In Pyles v. Cole, 241 S.W.2d 841 (Tenn. App. 1951), the broker, with the

knowledge of the owners, continued to show the property after his listing expired.

The defendants sold their property to one Crockett, to whom the property had been

shown by the broker. The case for a commission was resisted on the grounds that

the listing contract had expired, and that the sale was not the product of the broker’s

efforts. This Court held, inter alia, that “ . . . a contract will be deemed renewed . . .

where the principal has recognized that the broker is continuing negotiations looking

to a sale . . . “ It is well settled in this State that if the broker’s efforts were the

procuring cause of the sale, he is entitled to his commission. See Robinson v.

Kemmons Wilson Realty Co., 293 S.W.2d 574 (Tenn. Ct. App. 1956); Pacesetter

Properties Inc. v. Hardaway, 635 S.W.2d 382 (Tenn. App. 1981). As held in

Pacesetter, supra,




                                               4
              If the agent is the procuring cause of the transaction, he
              is due a fee; if he is not the procuring cause, he is not
              entitled to a fee.

        The evidence thus far presented indicates that the plaintiff did much more

than merely introduce Davis to the owners. She procured Davis and assisted in his

leasing the property with the eventual purpose of purchasing it. Davis, so far as the

proof shows, intended from the beginning of his occupancy to purchase the property,

but was hindered by financing obstacles, later overcome. We think that under all of

the circumstances presented, the plaintiff at the least established a prima facie case

for relief.

        The judgment is reversed and the case is remanded for a new trial, with costs

assessed to the appellees.




                                          William H. Inman, Senior Judge

CONCUR:



______________________________
Alan E. Highers, Judge



______________________________
Holly Lillard, Judge




                                           5
                    IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON
               ---------------------------------------------------------------------------




JOAN DOUGLAS and                                 )
GERMANTOWN REALTY, INC.,                         )
d/b/a COLDWELL BANKER,                           )
                                                 )        SHELBY CHANCERY
       Plaintiffs\Appellants                     )
v.                                               )
                                                 )
FRANK TIBBS and                                  )        Appeal No. 02A01-9602-CH-00033
AFSAMEH M. TIBBS,                                )
                                                 )
       Defendants\Appellees                      )


________________________________________________________________

                                         JUDGMENT

________________________________________________________________



       This cause came on to be regularly heard and considered by this Court, and

for the reasons stated in the Opinion of this Court, of even date, it is Ordered:



       1. The judgment of the trial court is reversed and the case is remanded for a

new trial.

       2. Costs of this appeal are taxed against the appellee for which execution

may issue if necessary.



       ENTER:



                                                 William H. Inman, Senior Judge



                                                 _________________________________
                                                 Alan E. Highers, Judge



                                                 _________________________________
                                                 Holly Lillard, Judge
