Behm v. Behm ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 28, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
JOHN REGINALD BEHM, ) C/A NO. 03A01-9810-CH-00339
)
Plaintiff-Appellant, )
)
)
)
v. )
)
) APPEAL AS OF RIGHT FROM THE
) LOUDON COUNTY CHANCERY COURT
SANDRA SMITH BEHM, )
)
Defendant-Appellee. )
)
)
)
FRED A. CHANEY, CLERK AND MASTER,)
) HONORABLE FRANK V. WILLIAMS, III
Amicus Curiae. ) CHANCELLOR
For Appellant For the Amicus Curiae
LARRY C. VAUGHAN RUSSELL JOHNSON
KIMBERLY R. TAYLOR REX A. DALE
Vaughan and Zuker Johnson & Dale
Knoxville, Tennessee Loudon, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
In this divorce case, the sole question before the
trial court was whether the Clerk and Master, as the court-
appointed Special Commissioner, was entitled to a fee to
compensate him for his efforts, albeit unsuccessful, to sell the
parties’ 25 acres in Loudon County. Following an evidentiary
hearing, the trial court ordered John Reginald Behm (“Husband”)
to pay the Clerk and Master a fee of $6,000.1 Husband appeals,
arguing, in effect, that the evidence preponderates against the
trial court’s judgment.
I
Our review of this non-jury case is de novo upon the
record of the proceedings below; however, that record comes to us
with a presumption that the trial court’s factual findings are
correct. Rule 13(d), T.R.A.P.; Wright v. City of Knoxville, 898
S.W.2d 177, 181 (Tenn. 1995). We must honor this presumption
unless we find that the evidence preponderates against those
findings. Rule 13(d), T.R.A.P.; Wright, 898 S.W.2d at 181; Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The
trial court’s conclusions of law, however, are not accorded the
same deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26,
35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.
1993).
Our de novo review is also subject to the well-
established principle that the trial court is in the best
1
While claiming that no fee was due, Husband acknowledged at trial that
as between him and his former wife, he was responsible for the fee in the
event the trial court found that one was due.
2
position to assess the credibility of the witnesses; accordingly,
such determinations are entitled to great weight on appeal.
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);
Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).
II
By order entered May 15, 1998, the parties agreed that
the Clerk and Master, Fred A. Chaney, as Special Commissioner,
would sell their former marital residence and 25 acres at auction
for $250,000 “unless the parties...agree[d] to a lower amount at
the time of auction.” Among other things, the order also
provided
that the Special Commissioner, by performing
the aforesaid extraordinary services in the
sell [sic] of the property in this cause as
ordered by the Court is entitled to receive
additional compensation in the amount of
three percent (3%) commission of the sale
price at the time of the closing, said amount
to be paid directly to the Clerk & Master’s
office.
Mr. Chaney attempted to auction the property on June
27, 1998. By agreement of the parties, a beginning bid of
$200,000 was requested. No bids were received, and Mr. Chaney
announced that there “was no sale.”
On June 29, 1998, Mr. Chaney filed his “Special
Commissioner’s Report of Sale.” The Report concludes as follows:
At the conclusion of the sale, the Special
Commissioner reminded Mr. and Mrs. Behm that
3
a bill for one-half of the costs of the sale
will be mailed to them within one week and
these costs are to be paid by them
immediately. It was also explained that the
Special Commissioner is to receive the 3%
commission on the total sales price of the
property at the time of closing, regardless
who sells the property. Mr. and Mrs. Behm
said they understood and agreed with the
Special Commissioner concerning both matters.
On July 11, 1998, Sandra Smith Behm (“Wife”) received
an offer from Husband to purchase her interest in the property
for a net of $62,763.86. Husband’s written proposal was based on
a hypothetical sales price of $200,000. Included in his
calculation was a deduction of $6,000, which he described as
“Special Commissioner 3%.” Wife countered with an offer to take
$86,314.11 for her interest. Her counter was based on a
hypothetical sales price of $230,000 and reflected, among her
computations, a deduction for $6,900 for “Special commission of
3%.” Husband agreed to purchase Wife’s interest in accordance
with the terms of her counter-offer, and the transaction was
subsequently consummated.
At trial, Husband took the position that the order of
May 15, 1998, contemplates a commission to Mr. Chaney if, and
only if, the latter sold the property. He denied that he had
ever agreed to pay Mr. Chaney a commission other than as a charge
attendant to an actual sale by the Clerk and Master.
Mr. Chaney testified that the parties had a different
understanding. He stated that it was agreed between the Behms
and him that “I get my three percent commission...I get it no
matter who sells it, how it’s sold down the road.”
4
The trial court allowed Mr. Chaney a fee of 3% on a
sales price of $200,000, i.e., a fee of $6,000.2 In so doing,
the trial court noted that it
[had] no problem whatsoever believing Mr.
Chaney when he says he would not have
undertaken a sale of this property under any
circumstances without knowing that he was
going to get paid in the event that it didn’t
bring their minimum.
Our interpretation of the trial court’s remarks is that
it resolved the credibility issues in this case in favor of Mr.
Chaney. As we have previously indicated, such determinations are
entitled to great weight on appeal. Massengale, 915 S.W.2d at
819. Thus, while we acknowledge conflicting testimony on the
subject of the Special Commissioner’s fee, we cannot say, in view
of the trial court’s credibility determinations, that the
evidence preponderates against the trial court’s judgment that
the parties’ agreement contemplated a fee for Mr. Chaney
regardless of whether he was successful in auctioning off the
parties’ property.
III
The judgment of the trial court is affirmed. Costs on
appeal are taxed against the appellant. This case is remanded
for such further proceedings, if any, as may be required,
consistent with this opinion, and for collection of costs
assessed below, all pursuant to applicable law.
2
The computation of the fee is not an issue on this appeal.
5
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
6