Gregory White v. Jack Miller
M2016-00888-COA-R3-CV
| Tenn. Ct. App. | Aug 30, 2017Background
- Robin and Gregory White listed their Mt. Juliet home (Breckenridge) with Bob Parks Realty; Jack Miller was the designated agent for the Whites; Carole Palmer was to receive a 25% referral fee under a separate referral agreement.
- The buyers (Nguyens) listed their Waterbrook townhouse with Parks; Miller signed the Waterbrook listing but the agreement did not expressly designate him as the Nguyens’ agent.
- The Whites agreed to sell Breckenridge for $900,000 with a $155,000 credit for taking the Waterbrook property in trade; closing occurred July 12, 2013.
- After closing, the Whites sued Miller and Parks alleging undisclosed dual agency, breach of fiduciary duty, violations of Tenn. Code Ann. § 62-13-404 and the Tennessee Consumer Protection Act (TCPA); Palmer sued Parks for her referral fee.
- Trial court (on summary judgment) found undisclosed dual agency and ordered forfeiture of commission to Robin White, awarded Palmer $6,750, denied the Whites’ TCPA claim, dismissed Gregory White’s claims for lack of standing, and awarded Parks the $6,200 commission from the Waterbrook sale.
- The Court of Appeals reversed the dual-agency ruling (finding Miller was not agent for the Nguyens under the written listing), affirmed Palmer’s referral fee and the award of the Waterbrook commission to Parks, affirmed dismissal of Gregory White’s claims, and remanded for findings on breach of fiduciary duty and § 62-13-404.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller acted as undisclosed dual agent | Whites: Miller represented both sides without written consent; dual agency occurred and warrants commission forfeiture | Miller/Parks: No dual agency — no written bilateral agency for Nguyens; designated-agent rules preclude dual agency for broker | Reversed trial court; Miller was not dual agent as to Nguyens; summary judgment for defendants on dual agency |
| Palmer’s referral fee amount | Palmer: Entitled to 25% of the listing fee (25% of 3% = $6,750) under referral agreement | Miller/Parks: Oral reduction of total commission to 5% means Palmer’s share should be 25% of 2.5% ($5,625) | Affirmed: Palmer entitled to $6,750 (complaint alleged 3% listing fee; no evidence commission’s listing half was reduced) |
| TCPA claim validity and pleading sufficiency | Whites: TCPA applies to deceptive practices by realtors; seek damages and fees | Miller/Parks: Complaint fails to plead violation of an enumerated TCPA provision or ascertainable loss | Affirmed dismissal: complaint insufficiently alleges violation of §47-18-104(b) or ascertainable loss |
| Gregory White’s standing to sue | Whites: Both spouses sued; asserted tenancy by entirety ownership | Defendants: Gregory lacked ownership or contractual relationship; no evidence of interest | Affirmed dismissal of Gregory’s claims: Plaintiffs failed to prove Gregory’s ownership or standing |
| Entitlement to Waterbrook commission | Whites: Commission caused the $155k credit increase; wrongful conduct should shift commission to Whites | Parks: Had agreement with Nguyens to earn commission; commission belongs to Parks; Whites lack contractual right | Affirmed: $6,200 commission awarded to Parks; dispute between Nguyens and Parks if any |
| Breach of fiduciary duty and §62-13-404 claims | Whites: Assert breach and statutory duty violations arising from alleged dual agency | Defendants: Argued lack of injury/damages and insufficient proof | Court of Appeals: Trial court made no specific findings; remanded for findings and ruling on these claims |
Key Cases Cited
- Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) (summary-judgment standard and burden on movant/nonmovant)
- Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (summary judgment review principles)
- Abshure v. Methodist Healthcare–Memphis Hosp., 325 S.W.3d 98 (Tenn. 2010) (summary judgment de novo review)
- Stovall v. Clarke, 113 S.W.3d 715 (Tenn. 2003) (view facts in favor of nonmoving party on summary judgment)
- Godfrey v. Ruiz, 90 S.W.3d 692 (Tenn. 2002) (summary judgment standards and inference drawing)
- Blair v. W. Town Mall, 130 S.W.3d 761 (Tenn. 2004) (summary judgment and appellate review)
- American Civil Liberties Union of Tenn. v. Darnell, 195 S.W.3d 612 (Tenn. 2006) (standing requirements)