Elizabeth Ann Morrow Granoff v. Andrew Scott Granoff

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 18, 2014 Session
ELIZABETH ANN MORROW GRANOFF v. ANDREW SCOTT GRANOFF
Appeal from the Circuit Court for Jefferson County
No. 19,472 Richard R. Vance, Judge
No. E2013-02598-COA-R3-CV-FILED-SEPTEMBER 26, 2014
This action arose over the proposed post-divorce sale of improved real property in which
both parties held an ownership interest pursuant to the terms of their marital dissolution
agreement, entered by the trial court with the parties’ divorce judgment in May 2006. The
real property at issue consisted of a luxury estate situated on approximately twenty-six acres
of lakeside property in White Pine, Tennessee. Following the parties’ filing of competing
motions for contempt, respectively alleging each party’s lack of cooperation in efforts to sell
the marital residence, the parties announced an agreement in December 2008 that the wife
would “assume the right to list, market, show and sell” the marital residence while the
husband was allowed to continue living there. This agreement was ultimately memorialized
by the trial court in an order entered September 6, 2011. Upon negotiating an offer to
purchase the marital residence for $925,000.00 in August 2013, the wife filed a motion to
approve the sale at that price. Following a bench hearing, at which the husband opposed the
sale and questioned Wife’s authority to enter into the purchase and sale contract, the trial
court granted the wife’s motion and approved the sale of the marital residence for the amount
of $925,000.00. The court also granted Wife authority to convey the real property upon her
signature alone, ruling that Wife had acted in accordance with the authority awarded her in
the previous order. The husband appeals. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.
William A. Mynatt, Jr., Knoxville, Tennessee, for the appellant, Andrew Scott Granoff.
James Richard Scroggins, Jefferson City, Tennessee, and Lisa A. White, Knoxville,
Tennessee, for the appellee, Elizabeth Ann Morrow Granoff.
OPINION
I. Factual and Procedural Background
The plaintiff, Elizabeth Ann Morrow Granoff (“Wife”), and the defendant, Andrew
Scott Granoff (“Husband”), were married twenty-one years prior to the entry of a final
judgment of divorce on May 16, 2006. At the time of the divorce proceedings, the parties
were partners in Granoff Properties, LLC, and owned significant assets. At issue in this
appeal is the disposition of the marital residence (“the Property”), a luxury estate situated on
twenty-six acres bordering Douglas Lake in White Pine, Tennessee, and including an
approximately 9,000-square foot home, a guest house, a swimming pool, and tennis courts.
At the time of the judgment for divorce, the parties’ ownership interest in the Property was
not encumbered by mortgage debt.
The parties’ marital dissolution agreement (“MDA”), incorporated into the final
judgment of divorce, provided as to the Property:
REAL PROPERTY: The parties own a residence and land located at
390 Highway 113, White Pine, Tennessee 37980, as tenants by the entireties.
The land shall be immediately placed for sale. Wife shall be given a Trust
Deed to secure an interest in the property of $460,000.00 or 30% of the
proceeds, whichever is higher. If the house and land are not sold within four
years of the date of the entry of the Final Judgment of Divorce, Husband shall
have an additional two years to sell the property but shall begin paying a
monthly payment to [W]ife equal to a monthly portion of the prime interest
rate on the $460,000.00, should Husband fail to make a payment as required,
Wife shall have the right to demand an immediate auction subject to the same
conditions set forth herein regarding an auction of the property. If the house
has not sold in six years from the date of entry of the divorce it shall be
auctioned by a reputable auction company with a mutually agreeable reserve.
At the time of any nonauction sale, after the payment of any expenses of said
sale, the Wife shall receive (30%) of the net proceeds or $460,000.00,
whichever is greater. Should the property require an auction, the parties shall
divide the proceeds of the auction, after the payment of the expenses of the
sale evenly between them. Until such time as the property is sold, Husband
shall have the right to reside in the marital residence and shall be responsible
for the reasonable maintenance and upkeep as well as the property tax and
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insurance. The Husband may decide to auction the home at any time with a
reputable auction [company] and a mutually agreeable reserve.
Parties agree that Wife’s Deed of Trust should not be subordinated to
any other debt.
Husband and Wife will cooperate so that Husband may borrow
sufficient funds to pay the property tax lien now existing against the residence
and the 2005 property taxes associated with the residence.
Husband continued to reside on the Property throughout the proceedings. He and his new
wife resided on the Property at the time of trial in the instant matter.
Following entry of the divorce judgment, Wife filed a petition for contempt against
Husband on August 25, 2006. As relevant to the sale of the Property, Wife alleged that
Husband had failed to pay the property taxes, maintain insurance covering the Property, and
keep her informed of his efforts to sell the Property. She requested that the trial court allow
her access to the house to prepare it for sale and that she be allowed to secure an appropriate
auctioneer or realtor to finalize the sale of the Property. Husband filed an answer,
acknowledging as to the Property that the taxes were in arrearage by one year and that there
was no insurance coverage on the Property. He asserted that he intended to pay the property
tax arrearage in full and that insurance could not be obtained because the Property was
located too far away from a fire station. He added that construction of a fire station was in
process, which upon completion, would allow for insurance coverage of the Property.
Husband also filed a counter-petition against Wife for contempt, alleging, as relevant to the
Property, that Wife had filed the petition for contempt as a form of harassment.
On January 19, 2007, the trial court entered an Order incorporating and approving an
agreement that the parties had announced before the court on November 27, 2006. In great
part, this order addressed rental property located on Eleanor Street in Knox County,
Tennessee (“Eleanor Street Property”), which had been awarded to Wife in the judgment for
divorce and on which she alleged Husband had failed to provide her with documentation of
ownership or maintain mortgage payments. The January 2007 agreed order, inter alia,
required Husband to pay a mortgage arrearage on the Eleanor Street Property by obtaining
financing on the Property at issue in this appeal. The order provided in pertinent part:
The husband shall be solely responsible for the mortgage arrears on the
wife’s above-referenced real property on Eleanor Street in Knox County,
Tennessee, up to Ten Thousand ($10,000.00) Dollars. The husband shall hold
wife harmless for said debt. He shall immediately attempt to obtain financing
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on the marital residence to pay this outstanding debt on the Eleanor Street
property and to pay all outstanding property taxes on the marital residence.
Should husband be unable to obtain the financing herein ordered prior to the
foreclosure of the Eleanor Street property, he shall then pay the wife Fifty
Thousand ($50,000.00) Dollars as soon as possible with the remaining Twenty
Thousand ($20,000.00) Dollars at the sale of the marital residence. This
Seventy Thousand ($70,000.00) Dollars will be compensation to the wife for
the loss of the rental property to foreclosure, should same occur. The wife will
be awarded a judgment against the husband for Seventy Thousand
($70,000.00) Dollars should the Eleanor Street foreclosure occur.
The January 2007 order also required Husband to obtain a homeowner’s insurance binder,
retroactive to fifteen days following the announcement of the parties’ agreement in
November 2006. The order reserved issues of contempt and Wife’s request for attorney’s
fees.
Subsequently, following a hearing conducted on April 17, 2007, the trial court entered
an Order on June 15, 2007, taking notice that the Eleanor Street Property had been foreclosed
and could no longer be valued as Wife’s asset. The court ordered Husband, inter alia, to pay
Wife the amount of $50,000.00 toward the value of the Eleanor Street Property within thirty
days of the April 17, 2007 hearing. As to the Property at issue in this appeal, the court
ordered Husband to provide Wife with a copy of proof of insurance covering the Property.
Husband also was ordered to obtain refinancing on the Property, as the sole obligor if
possible and with Wife’s cooperation in the event he was unable to solely refinance. The
court specifically directed that the parties were “to keep one another informed of the progress
in selling the home.” The court also awarded to Wife attorney’s fees in the amount of
$1,500.00.
Less than six months later, on December 4, 2007, Wife filed a “Petition for Contempt
and for Sale of Real Property,” requesting, inter alia, full authority to list the Property for
sale and to contract for sale of the Property by auction. Wife alleged in regard to the Property
that Husband had willfully refused to pay her the funds ordered by the trial court in its June
2007 order, refused to maintain insurance coverage on the Property, failed to pay taxes on
the Property, and failed to keep her informed regarding efforts to market and sell the
Property. Husband filed a response and a petition for contempt against Wife, averring that
inasmuch as he had failed to perform as ordered by the trial court, his failure was the result
of Wife’s failure to cooperate with him in obtaining financing. Husband again asserted that
Wife’s petition for contempt constituted “harassment by Court action.” He denied failing to
inform Wife of his efforts to market and sell the Property.
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On December 15, 2008, the parties announced an agreement to the trial court, which
was subsequently memorialized in a written order nearly three years later on September 6,
2011.1 It is undisputed that the September 6, 2011 order accurately represents the December
15, 2008 agreement. Regarding the Property at issue, the trial court ordered in pertinent part:
1. The wife, Elizabeth Ann Morrow Granoff, shall assume the right to list,
market, show and sell the real property in Jefferson County, Tennessee
consisting of the marital residence situated upon approximately twenty-
six (26) acres with improvements. The husband shall continue to
occupy the residence and he shall cooperate fully with the wife with
regard to showing the premises and marketing the premises for sale.
The wife shall have full access to come upon the property, to show the
property, inspect the property, and otherwise participate in the usual
and customary acts associated with sale.
2. In the event that the real property consisting of the marital residence
and approximately twenty-six (26) acres with improvements does not
sell pursuant to the listing of said property on or before August 1, 2009,
the wife shall select a date during the month of October 2009 for the
property to be sold at auction with an auctioneering firm to be agreed
between the attorneys of the parties. The husband shall comply with
previous orders relative to upkeep, maintenance, payment of real estate
taxes and maintaining sufficient insurance with regard to the property.
3. The wife shall assume responsibility for attempting to secure a one (1)
year loan with monthly interest only and principal being payable on the
anniversary date of the loan in an amount up to sixty thousand dollars
($60,000.00) with the loan proceeds utilized to satisfy past-due taxes,
penalty and interest, and the expense of insurance premium for the
marital residence and real property. The husband shall cooperate fully
with the wife in her attempts to secure the loan and he shall sign notes,
instruments, or other documents necessary and associated with
applications and the securing of the loan. The funds borrowed shall be
1
During his opening statement at trial, Wife’s counsel explained that the transcript of the December
2008 hearing at which the agreement was announced had been filed with the trial court but that “we all just
sort of fell asleep and didn’t get that order entered.” The transcript of the December 2008 hearing is not
included in the appellate record. The transcript is included, however, as an appendix in Husband’s principal
brief, and Wife in her responsive brief specifically does not dispute the transcript’s accuracy. The record
contains no further explanation of the nearly three-year delay between the announced agreement and entry
of the order.
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repaid from funds of the husband upon sale of the real property and
marital residence. He shall continue to be responsible for all of the
expenses associated with taxes, maintenance, insurance and upkeep of
the marital residence that he occupies pending sale.
Despite the provision in the above agreed order for auction of the Property, the home
was never offered at auction because the parties could not agree on a reserve price. Prior to
the agreement, the Property had been listed for as much as $3,100,000.00 and as little as
$1,700,000.00, but no offers to purchase had been tendered. Wife testified that following
the December 2008 agreement, Husband refused to agree to a minimum reserve price below
$1,700,000.00. Wife explained that she believed the Property would not sell at the minimum
reserve upon which Husband insisted and that she would not agree to incur the expenses of
an auction unless the minimum reserve price could be reduced. Wife acknowledged that she
did not pursue further negotiation with Husband regarding a minimum reserve price for
auction purposes.
In May 2011, Wife contracted to list the Property with Johnnie Creel, a real estate
broker and luxury home specialist who testified at trial. Ms. Creel first listed the Property
at a price of $1,600,000.00, and it was her understanding that the parties agreed to that price
upon her recommendation. The listing price was subsequently reduced twice with Wife’s
approval, first to $1,550,000.00 and finally to $1,250,000.00. It is undisputed that Husband
had made known his objection to reducing the price below $1,600,000.00, and neither Ms.
Creel nor Wife consulted him regarding the subsequent price reductions. In August 2013,
Wife received an offer to purchase the Property in the amount of $875,000.00. Acting
through Ms. Creel, Wife sent a counter-offer in the amount of $1,088,000.00, which the
purchasers rejected. Wife eventually tendered the potential purchasers a counter-offer in the
amount of $925,000.00, subject to approval by the trial court. The purchasers accepted that
counter-offer. It is undisputed that Wife’s negotiation with these potential buyers constituted
the only serious offer and negotiation in the nearly eight years the parties had been attempting
to sell the Property. Husband acknowledged at trial that he had received no offers to
purchase the Property during the years that he was managing the marketing and selling
efforts. Wife indicated that she had received only one other offer, which at $400,000.00, she
had rejected as too low to consider.
On August 28, 2013, Wife filed a motion to approve the sale of the Property in the
amount of $925,000.00. She attached to this filing an “Amounts Payable to the Wife by the
Husband from Marital Residence Sale,” setting forth amounts claimed as owed to her by
Husband pursuant to previous court orders. By Wife’s calculations, these amounts included
$70,000.00 associated with the foreclosure on the Eleanor Street property and payable to
Wife pursuant to the June 15, 2007 order; unspecified amounts Wife previously paid by
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securing loans to pay for past-due taxes, penalties, interest, and insurance on the marital
residence; monthly payments, pursuant to the MDA, that Husband was to begin paying Wife
four years following the divorce judgment, with a total calculated at $49,286.40; a loan
acquired by Wife at Husband’s request to pay for a 2009 repair to the swimming pool liner
at the Property with a principal owed of $34,500.00 and total with interest owed of
approximately $52,000.00. Wife also averred that Husband had again failed to pay taxes on
the Property, which had accrued in total to $9,523.36. On appeal, Husband does not dispute
the amounts owed to Wife pursuant to previous court orders.
Following a hearing conducted on October 16, 2013, the trial court granted Wife’s
motion in full and recognized her authority to sell the Property, approving the proposed sale
in the amount of $925,000.00 and vesting Wife with the right to convey the Property “by her
signature alone.” Husband timely appealed.
Husband subsequently filed a motion for relief pending appeal, requesting a stay of
enforcement of the judgment pursuant to Tennessee Rule of Civil Procedure 62.03.
Following a hearing conducted on November 18, 2013, the trial court denied Husband’s
motion. During the pendency of the appeal, this Court granted a motion filed by Wife in May
2014 for consideration of the post-judgment fact, also stipulated to by Husband, that the
purchase and sale contract for which Wife had sought approval had expired and was not
renewed by the potential purchasers. We determine that because the trial court in its final
order vested Wife with the right to convey the Property, the appeal remains viable despite the
termination of the purchase and sale contract.2
2
Although Wife does not urge this Court to do so, she raises the threshold consideration on appeal
of whether we might interpret the judgment allowing the sale as less than a final judgment due to the
competing petitions for contempt filed throughout the proceedings. Upon careful and thorough review of
the record, we conclude that the October 30, 2013 order from which Father appeals is a final, appealable
judgment inasmuch as it resolved all issues before the trial court at the time of its entry. See Tenn. R. App.
P. 3. The agreed order previously entered September 6, 2011, pursuant to the parties’ December 2008
agreement, specifically reserved all contempt issues. The final order, however, followed an evidentiary
hearing conducted by the trial court and was clearly intended by the court as a final disposition of the
Property at issue. Neither party questioned the finality of the October 30, 2013 order to the trial court, and
neither party filed a motion to alter or amend the judgment pursuant to Tennessee Rule of Procedure 60.02.
Accordingly, we conclude that the parties abandoned their competing contempt claims brought prior to that
point in the proceedings. As for a post-judgment motion filed by Wife with the trial court during the
pendency of this appeal, in which she requests that the trial court require Husband to fulfill obligations
previously imposed, the motion is premature inasmuch as jurisdiction over this matter will return to the trial
court only upon remand from this Court. See Tenn. Code Ann. § 21-1-810 (2009); Parish v. Marquis, 137
S.W.3d 621, 624 (Tenn. 2004).
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II. Issues Presented
Husband presents three issues for our review, which we restate as follows:
1. Whether the trial court erred by approving the sale of the Property in the
amount of $925,000.00.
2. Whether the trial court erred by finding that Wife had acted in good faith and
with sole vested authority to convey the Property when she marketed and
accepted an offer to purchase said Property.
3. Whether the trial court erred by failing to protect the value of the entire marital
estate.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of correctness
as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.
R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We review questions
of law, including those of statutory construction, de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.
1998)); see also In re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The
trial court’s determinations regarding witness credibility are entitled to great weight on
appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See
Morrison v. Allen, 338 S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).
Marital dissolution agreements are contractual and, once approved by the trial court,
“become legally binding obligations on the parties.” Long v. McAllister-Long, 221 S.W.3d
1, 9 (Tenn. Ct. App. 2006) (explaining that with the two “notable exceptions” of child
support and alimony, which remain modifiable by the courts, “the agreements in a marital
dissolution agreement are enforceable contract obligations.”). We review issues of contract
interpretation de novo. See Dick Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395
S.W.3d 653, 659 (Tenn. 2013). As this Court has previously explained:
In resolving a dispute concerning contract interpretation, our task is to
ascertain the intention of the parties based upon the usual, natural, and
ordinary meaning of the contract language. Planters Gin Co. v. Fed.
Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002) (citing
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A determination of
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the intention of the parties “is generally treated as a question of law because
the words of the contract are definite and undisputed, and in deciding the legal
effect of the words, there is no genuine factual issue left for a jury to decide.”
Planters Gin Co., 78 S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on
Contracts, § 24.30 (rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc.,
46 S.W.3d 191, 196 (Tenn. 2001)). The central tenet of contract construction
is that the intent of the contracting parties at the time of executing the
agreement should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’
intent is presumed to be that specifically expressed in the body of the contract.
“In other words, the object to be attained in construing a contract is to
ascertain the meaning and intent of the parties as expressed in the language
used and to give effect to such intent if it does not conflict with any rule of
law, good morals, or public policy.” Id. (quoting 17 Am.Jur.2d, Contracts, §
245).
Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698 (Tenn. Ct. App. 2005).
IV. Approval of Sale of Real Property
Husband contends that the trial court erred by approving the sale of the Property in
the amount of $925,000.00 because (1) Wife failed to establish this price as a fair market
value and (2) the court failed to consider the effect of this price upon the equitable division
of the marital estate. Wife contends that the trial court properly approved sale of the Property
at $925,000.00 because competent testimony established that after nearly eight years on the
market and a downturn in the economy, $925,000.00 was a reasonable market value for the
Property and neither the MDA nor the December 2008 agreement provided for a minimum
purchase price. We conclude that the evidence does not preponderate against the trial court’s
approval of the $925,000.00 purchase price as reasonable under the circumstances of the
proposed sale.
As this Court has previously explained:
The value of marital property is a fact question. Thus, a trial court’s
decision with regard to the value of a marital asset will be given great weight
on appeal. In accordance with Tenn. R. App. P. 13(d), the trial court’s
decisions with regard to the valuation and distribution of marital property will
be presumed to be correct unless the evidence preponderates otherwise.
The value of a marital asset is determined by considering all relevant
evidence regarding value. The burden is on the parties to produce competent
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evidence of value, and the parties are bound by the evidence they present.
Thus the trial court, in its discretion, is free to place a value on a marital asset
that is within the range of the evidence submitted.
Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987) (internal citations omitted).
In granting Wife’s motion to approve the sale, the trial court made specific findings
of fact, subsequently incorporated into its written order, stating in pertinent part:
The Court has listened very carefully and followed the testimony and
considered the testimony of the witnesses, the statements and arguments of
counsel and the entire record in this cause.
This is a longstanding dispute. The point of contention, unfinished
business of a divorce that was granted some eight years ago. And that is at the
time it was understood that the property would be, the home would be sold and
that the proceeds would be divided.
The Court recalls that for a period of time Mr. Granoff was given the
opportunity and obligation to market and try to sell the home. Nothing ever
happened, no buyer was ever produced.
At a point in time some four years ago, three years ago, the Order was
filed in September of 2011, the hearing was before that, the Transcript was
made. Because of the inability of Mr. Granoff to produce a buyer or do
anything that resulted in the sale of the home, even a potential buyer, the Court
did grant Ms. Granoff the power to market and sell the home.
The first issue that was drawn here today was whether or not she had
the authority to do that. The plain language of the Court’s Order answers that
and says she did. The Court gave her the authority to sell the home.
Under that Order she could have signed the deed, closed the sale and
not come into Court. She has asked this Court to approve that sale.
In saying that she had the authority to sell, the Court still has the
authority to look at the reasonableness or conduct or reasonableness of the
efforts to market it and sell it, and the reasonableness of the sale price.
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In looking at the history this home was valued at substantially more
than what it’s being sold for today. And that’s true of many homes in the
country, in this area. It was testified to by the realtors and brokers who
testified that the economy has caused homes that maybe cost a great deal more
to be sold for less money. We have to deal with what we have today.
And what we have today is a home that’s been on the market for eight
years. For the past several years the Court finds that it was aggressively
marketed by Ms. Creel, through her efforts, through marketing tools, Internet,
publications, multiple listings, fliers, e-mails, other brokers, and has shown the
house several times.
But the result has been only two offers, one of which was ridiculously
low, and that’s a legal term, ridiculously low, $400,000.00. And obviously it
was not even considered.
The current offer is $925,000.00. Again this is less than what either of
these parties ever wanted to sell this house for. It is to Ms. Granoff’s
advantage to maximize the sale price.
The more it sells for the more she gets. To Mr. Granoff’s advantage,
the more it sells for the more he gets. He couldn’t produce a buyer in the years
that he had the authority to market it. This is all that’s out there.
The testimony of the realtor and broker both indicate that this sale price
is within the range of what this house could be expected to sell for at an
auction. Again, there’s no other buyer in sight, hasn’t been over the time that
Ms. Granoff, since she was given, granted the authority to sell the home, has
exercised good faith.
She wants to sell the house and of course she wants to gain her portion
of the bargaining, that is the divorce settlement entirely that she waited many
years for.
The longer the house is not sold the greater the existing debt is. One
particular loan was $38,000.00, it’s now $55,000.00. They keep going up.
Taxes are to pay now. Interest accrues on these debts.
Mr. Granoff has had the benefit of the rental value of this home for
some eight years, he’s lived there and no rent. I don’t know what the rent
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would be when a home is worth $925,000.00, much less a Million and a Half.
But I would say it’s a substantial amount, his benefit that he has derived living
there and being in possession of the home.
The value of the property in divorce cases is difficult to[;] sale after the
divorce implies a forced sale. This process has gone some eight years.
Oftentimes neither party knows the full value, when a property is sold
as a result of divorce. It was pointed out by the witnesses, the economy, it was
mentioned by Mr. Granoff, and this is a legitimate concern to anyone who is
trying to sell any property on any basis over the past few years. The economy
has been such that it’s difficult to sell property, difficult to find buyers.
This is the only buyer in sight, the only one that’s been in sight in eight
years anywhere that came anywhere close to what this property could be worth.
The longer it sits there the more maintenance.
It has been mentioned tens of thousands of dollars has been spent, tens
of thousands will continue to have to be spent to maintain the property, so long
as it’s not sold. That simply adds to the burden of these parties.
So for all these reasons the Court finds that Ms. Granoff has found a
buyer through her efforts and diligence, work with the realtors, found the best
possible price that could be obtained for the property. Under all those
circumstances the Court finds that that sale price is fair, it’s reasonable, given
all the circumstances.
It’s a lot less than either of these parties would like for it to be, but what
they would like for it to be hasn’t produced a buyer.
So, the Court does approve the sale of the home for the contract price.
So these parties can get on with their lives.
Upon our careful review of the record, we conclude that the evidence preponderates
in favor of the trial court’s findings. Husband argues that the trial court erred by relying on
Wife’s witnesses for assessment of the Property’s market value. Husband maintains that he
was the only witness to provide “competent testimony of the value of the property” and that
the real estate agent’s and auctioneer’s estimates were inaccurately based on public response
to insufficient marketing. We disagree.
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Husband testified that he valued the Property in the amount of $1,700,000.00, basing
this figure on the most recent tax appraisal in that amount. He stated that the last price he
told Ms. Creel or Wife he would accept for the Property was $1,550,000.00. Husband
acknowledged that during the two and one-half years immediately following the divorce in
which he attempted to sell the Property, he received no offers. When questioned regarding
what improvements he had made to the Property in the two years preceding trial, he said that
all structures had new roofs, the tennis courts had been refurbished, decking had been
replaced, the basement had been refinished, and a new heat pump and air conditioning unit
had been installed. Husband indicated that he had spent approximately $150,000.00
maintaining the Property.
Ms. Creel testified that she was the owner of Keeler Williams Realty in Knoxville and
was certified as a luxury home specialist, with a luxury home defined as one priced at
$500,000.00 or more. She had been a realtor for twenty-four years and had listed and sold
property in several East Tennessee counties. When questioned regarding her marketing
methods since first listing the Property at issue in May 2011 through trial, she explained:
Well, I had put it up on over 150 websites that are well recognized.
Websites for marketing luxury homes and also homes. I’ve advertised it in
Unique Homes, which is an international publication that goes out to about
50,000 luxury spas and hotels.
I have marketed locally and placed it on the cover of several of our top
magazines. Or several times in our top magazines. In Home Market that goes
out with the News Sentinel. In a real estate book that goes out all over several
counties. Homes, Knox Homes. And I have sent fliers to other agents, both
by e-mail and mail out. I have mailed out cards, 4 by 6 cards.
To geographic through Courthouse Retrieval System where I can mark
people who own homes above $400,000.00, who might be potential clients.
I have spoken with and discussed with agents not only in my office but in
luxury, other luxury agents in the area.
Ms. Creel further explained that she had engaged a professional photographer to take both
aerial and ground photographs of the Property. Wife presented into evidence a regional real
estate brochure, dated January 2012, featuring a full-page color photograph of the Property
on its cover.
Ms. Creel testified that she had shown the Property to potential buyers approximately
ten times. She acknowledged that she had not held an open house, opining that an open
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house would be ineffectual considering the remote location of the Property. She further
indicated that she had not commissioned an appraisal of the Property.
Ms. Creel noted that obstacles to selling the Property included its entirely stucco
composition, aging fixtures, and lack of readiness for high-definition television. She opined
that the materials in the home were of high quality but were specific to the parties’ desires
and did not always appeal to buyers’ tastes. She stated that during the time she was
marketing the property, hail and other weather damage occurred that required repairs. She
confirmed that Husband had successfully completed those repairs. According to Ms. Creel,
the four-bedroom guest house on the Property was “in dire need of work” and something of
“an eye sore.” The guest house had been damaged by rental tenants, whom she believed
were there upon Husband’s permission but had vacated the Property by the time of trial. She
mentioned that it was sometimes difficult to show the Property to potential buyers because
Husband tended to “hover” and provide information that did not assist in marketing the
Property.
Ms. Creel testified that the starting price when she began listing the Property was
$1,600,000.00. As she related, Wife subsequently agreed to lower the price to
$1,550,000.00, “where it stayed for a long time.” According to Ms. Creel, potential buyers
consistently told her the price was too high, and the only offer she received was the one at
issue. Upon Ms. Creel’s advice, Wife lowered the listed price to $1,250,000.00, and it was
Ms. Creel’s understanding that pursuant to the September 2011 court order, Wife had the
authority to do so without consulting Husband. The listed price remained at $1,250,000.00
when Ms. Creel received the current potential purchasers’ first offer. She explained that she
did not present the offer or counter-offer at issue to Husband “[b]ecause he told me that he
would not accept anything less than $1.5 and I knew that was unreasonable.” When
questioned regarding the potential for obtaining a higher price than $925,000.00 for the
Property, Ms. Creel opined that the chances were “zero and none.” She maintained that she
had put forth her best effort as a real estate broker and had obtained the best possible offer.
Licensed real estate broker and auctioneer David Posey testified that he had been an
auctioneer for six years and was employed as the chief auctioneer for Keeler Williams Realty
and Posey Auctions. He stated that he was familiar with the Property and had shown it to a
potential buyer approximately one year before trial. Mr. Posey opined that at auction the
Property would not bring a price in excess of $925,000.00. In support of his opinion, he
compared the Property to several differently situated properties in a comparable price range.
He noted that sometimes “more structures that are on a property means more maintenance”
and can hinder sales because potential buyers are worried regarding the cost of maintaining
additional structures. He noted that although he did review the tax appraisal on the Property,
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he typically finds tax appraisals not to be indicative of market value. He stated that in his
experience, an auction will usually bring a purchase price less than the listed price.
In addition to considering the testimony, the trial court expressly considered the nearly
eight years the Property had been on the market and the dearth of offers the parties had
received in that time. The trial court, in its discretion, was free to place a value on the
Property that was within the range of the evidence submitted. See Wallace, 733 S.W.2d at
107. We stress also that the trial court’s determinations regarding witness credibility are
entitled to great weight on appeal. See Morrison, 338 S.W.3d at 426; Jones, 92 S.W.3d at
838. We determine that the evidence does not preponderate against the trial court’s finding
that the proposed purchase price of $925,000.00 represented a reasonable market value for
the Property.
Husband also argues that because the bulk of his interest in the marital estate was his
interest in the Property at issue, sale of the Property at the amount approved by the trial court
would result in an inequitable redistribution of marital assets contrary to the intent of the
parties in executing the MDA. He asserts that the provision of the MDA awarding Wife
“(30%) of the net proceeds or $460,000.00, whichever is greater” from the sale of the
Property evinces the parties’ belief at the time of the agreement’s execution that $460,000.00
represented at least thirty percent of the Property’s market value. As Wife notes, however,
the MDA contains no estimated market value for the Property, nor does it provide a
minimum sale price. In fact, the MDA provides for the eventuality that Wife’s minimum
share of $460,000.00 may be greater than thirty percent of the total net proceeds. See
Allmand v. Pavletic, 292 S.W.3d 618, 630 (Tenn. 2009) (“Courts must look at the plain
meaning of the words in a contract to determine the parties’ intent. If the contractual
language is clear and unambiguous, the literal meaning controls . . . .”) (internal citations
omitted).
Contrary to Husband’s assertion that the trial court failed to consider the equitable
distribution of the marital estate, our review of the record demonstrates that the court
weighed carefully the effect of the failure to sell this Property on the distribution of the
estate. As the court noted, Husband by the time of trial had resided on the Property nearly
eight years since entry of the judgment for divorce without paying any rent. It is undisputed
that Husband had repeatedly failed to pay taxes on the Property or maintain homeowner’s
insurance. In 2009, Wife acquired a loan at Husband’s request to facilitate repair of the
swimming pool liner, and this debt was still outstanding at time of trial in the amount of,
including interest, $52,000.00. Upon the parties’ December 2008 agreement, memorialized
by the trial court in its September 2011 order, Wife obtained financing to pay outstanding
property taxes and accompanying interest, an obligation that, pursuant to the MDA, had
become Husband’s responsibility at the time of the divorce judgment. Pursuant to the
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December 2008 agreement, Husband was to repay Wife for this loan from his portion of the
Property sale proceeds but had not done so by trial. Husband also does not dispute that the
property taxes were again in arrearage by the time of trial. Moreover, pursuant to the trial
court’s June 2007 order, Wife’s asset of the Eleanor Street Property was lost to her through
Husband’s failure to pay the mortgage regarding that property. By trial, Husband still had
not paid Wife the $70,000.00 the trial court ordered him to pay in 2007 as replacement for
the Eleanor Street Property.
As the trial court noted, “[t]he longer the house is not sold the greater the existing debt
is,” which “simply adds to the burden of these parties.” The trial court did not err by
approving the sale of the Property at the proposed purchase price of $925,000.00.
V. Wife’s Authority to Sell the Property and Duty of Good Faith
Husband contends that the trial court erred by finding that Wife acted with authority
and good faith by marketing the Property and accepting the counter-offer of $925,000.00
without consulting Husband. Wife asserts that the trial court properly found that she was
vested with the authority, pursuant to the order entered September 6, 2011, to act without
Husband in marketing and selling the Property. She also argues that the trial court properly
found that she had acted in good faith when she negotiated the purchase price of
$925,000.00. We agree with Wife.
Husband asserts that it was not his intent upon entering the December 2008
agreement, memorialized in the trial court’s December 2011 order, to authorize Wife to sell
the Property without consulting him regarding the purchase price. As Husband notes, the
parties’ MDA originally provided Wife with the remedy of demanding an immediate auction
of the Property “by a reputable auction company with a mutually agreeable reserve.” He
maintains that it was his intent for the stipulation of a mutually agreeable reserve to carry
over into the agreed order and that he also intended for Wife to have authority only to market
and list the Property. The trial court, however, found that in the plain language of the
September 2011 order, Wife was vested with the authority to “list, market, show and sell”
the Property. We agree. See City of Shelbyville v. State ex rel. Bedford County, 415 S.W.2d
139, 144 (Tenn. 1967) (“A consent decree is a contract made final and binding upon the
parties by the approval of the court.”); see also Kafozi, 184 S.W.3d at 698 (“The parties’
intent is presumed to be that specifically expressed in the body of the contract.”).
Husband also posits that Wife violated the covenant of good faith and fair dealing
inherent in their MDA when she unilaterally agreed to sell the Property for what Husband
believed was below its market value. See Long, 221 S.W.3d at 9 (“A marital dissolution
agreement, like any other contract, contains an implied covenant of good faith and fair
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dealing both in the performance and the interpretation of the contract.”). Pursuant to the
parties’ MDA, Wife received at the time of the divorce judgment a secured interest in the
Property of $460,000.00 or thirty percent of the eventual sale proceeds, whichever proved
to be higher. The MDA further provided in pertinent part:
At the time of any nonauction sale, after the payment of any expenses of said
sale, the Wife shall receive (30%) of the net proceeds or $460,000.00,
whichever is greater. Should the property require an auction, the parties shall
divide the proceeds of the auction, after the payment of the expenses of the
sale evenly between them.
Husband argues that because Wife will receive $460,000.00 from any non-auction sale of the
Property yielding at least that amount in net proceeds, she entered the sale contract at issue
without regard for the fact that Husband’s share would be less than fifty percent once
commissions were paid and would be further reduced by the amounts he owed for property
taxes and to Wife for the amounts enumerated in her motion for approval of the sale.
Husband’s argument is essentially grounded in his contention that the Property, given
more extensive marketing or a fortuitous auction sale, would sell for a minimum of
$1,550,000.00 at some point in the future. The trial court found Husband’s valuation to be
unrealistic based upon a preponderance of the evidence presented at trial, and upon our
thorough and careful review of the record, we agree. The trial court expressly found in its
ruling incorporated into the final order that Wife had “exercised good faith” in her attempts
to list, market, show, and sell the Property. In subsequently denying Husband’s motion to
stay execution of the judgment pending appeal, the trial court further explained its findings
as follows in pertinent part:
There were two issues presented in the earlier hearing. One was
whether or not Ms. Granoff had the authority on her own to sell without Court
approval. The Court found she did. I gave her that authority in previous
Orders. Orders which were not appealed. Orders which were part of this
Court’s record. She did come in and ask for Court approval out of abundance
of caution.
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I found that not only was the sale appropriate, it was the only sale. It
was the only offer. It was the only deal out there some six years3 after entering
the Judgment of Divorce.
I did observe that Mr. Granoff has had the benefit of living in this
property for all those years. Not only rent free but from the testimony he has
not lived up to his obligations under the previous Court’s Orders.
Consistently behind in payments on debts that affected the property.
And now comes in wanting more rent free time in this home. I don’t know
that I’ve ever seen a case or had a case where one party frustrated the
imposition of a Judgment more than Mr. Granoff has.
It was argued at that hearing that the sale was, the amount was
inadequate. I again point out, this was the only contract. This is the only
legitimate offer that has been made in six years. And the Court found that
under all the facts and circumstances it was proper and should be done.
I understand that now that there’s a, you know, a potential problem with
this buyer in that, I’m told right now that this buyer has a condition of its own.
That they have to sell their own home.
That does not affect the Court’s findings and conclusions, even if that
sale should not go through because of a problem with the buyer. Ms. Granoff
does have, continues to have the full authority to sell this property without Mr.
Granoff’s approval.
Because of that, the Court denies the motion for a stay pending appeal.
The evidence in this case was clear, compelling. As I say, Mr. Granoff has
frustrated the carrying out of previous Orders of the Court, caused both parties
to incur additional debt.
As the trial court noted, the record is replete with instances of Husband’s failing to
pay Wife as ordered by the court and causing the parties to incur debt through his failure to
pay property taxes and loan installments. When questioned at trial regarding whose interest
she was protecting when she entered the purchase and sale contract at issue, Wife stated:
3
In its final order, the trial court correctly found that the time period between the entry of the
judgment for divorce in May 2006 and the instant final order in October 2013 was close to eight years. The
mention of “six years” here appears to be a clerical error.
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I have . . . in the beginning . . . I have to protect my interests but I have
of our interests. I think this sale would bring a price and money that we could
both split, okay. More than continuing on for eight more years. [Husband’s
counsel], I cannot afford that. I am paying a mortgage on my house, paid taxes
on the house that Mr. Granoff and his wife are living in.
I borrowed money to fix the pool that at the end of the day is costing
me. I’m just asking for both of us. I’m not trying and never have tried to hurt
Mr. Granoff.
Husband argues that a more equitable remedy, provided to Wife in the MDA, would have
been to auction the Property at a mutually agreeable reserve price to then be split equally
between the parties. Wife testified, however, that once she had obtained the June 2007 order
authorizing an auction, Husband refused to entertain a reserve price of less than
$1,700,000.00. Both Ms. Creel and Mr. Posey testified that if the Property were sold at
auction, it was likely to be for an amount within the range of the amount at issue,
$925,000.00, or less.
When questioned regarding how he anticipated Wife’s receiving the funds due her if
the Property were not sold, Husband opined that when he turned sixty-two in May 2014, he
could obtain a reverse mortgage in the amount of $390,000.00 and pay Wife then. Setting
aside, arguendo, the speculative nature of this plan, Husband failed to account for the gap
between the amount he anticipated receiving from a reverse mortgage and the amount
actually owed to Wife. We conclude that the trial court did not err by finding that Wife was
vested with the sole authority to enter into a purchase and sale contract. We further conclude
that the evidence does not preponderate against the trial court’s finding that in exercising said
authority, Wife did not breach the covenant of good faith and fair dealing.
VI. Protection of the Marital Estate
Husband further argues that the trial court failed to protect the value of the Property
when it authorized Wife to execute the sale without imposing further conditions to ensure
that she would obtain fair market value for the Property. See Tenn. Code Ann. § 36-4-
121(a)(3) (2014) (providing that within the context of a court-ordered sale, a court “in its
discretion, may impose any additional conditions or procedures upon the sale of property in
divorce cases as are reasonably designed to ensure that such property is sold for its fair
market value.”). In support of this argument, Husband relies on this Court’s decision in
Doran v. Doran, No. W2003-00170-COA-R3-CV, 2004 WL 86174 (Tenn. Ct. App. Jan. 12,
2004). In Doran, the trial court had ordered the sale of four parcels of real property
belonging to the divorcing parties as tenants in common. 2004 WL 86174 at *1. The Doran
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trial court directed the parties to submit sealed bids to purchase each other’s interest in each
parcel and ordered that the party with the winning bid for each parcel would be awarded
outright ownership of that parcel. Id. This Court held that although the trial court was “well
within its authority, as granted by Tenn. Code Ann. § 36-4-121, to order a private sale,” the
trial court failed to comply with the statute because it failed to “‘ensure that such [marital]
property is sold for its fair market value.’” Id. at *2-3 (quoting Tenn. Code Ann. § 36-4-
121(a)(3)(C)). We find Doran to be factually distinguishable from this case. First, as
Husband acknowledges, the trial court in the instant action did not order a private or public
sale of the Property pursuant to Tennessee Code Annotated § 36-4-121(a)(3). Second, the
trial court in this case accepted the proposed purchase price of $925,000.00 as a reasonable
value based upon expert testimony rather than accepting blind bids from the parties.
We conclude that based upon the sole authority vested in Wife to convey the Property
by the December 2011 agreed order and a preponderance of the evidence that Wife exercised
this authority in good faith, the trial court did not err in vesting continued sole authority in
Wife to convey the Property.
VII. Conclusion
For the reasons stated above, the trial court’s grant of Wife’s motion to approve the
sale of the Property, inclusive of the court’s vesting of sole authority in Wife to convey the
Property by her signature, is affirmed. Costs on appeal are taxed to the appellant, Andrew
Scott Granoff. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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