224 F.3d 537 (6th Cir. 2000), 99-5486, Atchley v RK Company

Docket Nº:99-5486
Citation:224 F.3d 537
Party Name:Lori D. Atchley d/b/a RCW Realty Company, Plaintiff-Appellant, v. RK Company, Robert R. Krilich, and Donna J. Krilich, Defendants-Appellees.
Case Date:August 16, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 537

224 F.3d 537 (6th Cir. 2000)

Lori D. Atchley d/b/a RCW Realty Company, Plaintiff-Appellant,

v.

RK Company, Robert R. Krilich, and Donna J. Krilich, Defendants-Appellees.

No. 99-5486

United States Court of Appeals, Sixth Circuit

August 16, 2000

Argued: March 7, 2000

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-00319--Aleta A. Trauger, District Judge.

Page 538

Harold Naill Falls, Jr., FALLS, RAMSEY & VEACH, Nashville, Tennessee, for Appellant.

John S. Hicks, BAKER, DONELSON, BEARMAN & CALDWELL, Nashville, Tennessee, for Appellees.

Before: SILER and GILMAN, Circuit Judges; O'MALLEY, District Judge[*].

O'MALLEY, D. J., delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (p. 542), delivered a separate concurring opinion.

OPINION

O'MALLEY, District Judge.

Plaintiff-appellant Lori Atchley, d/b/a RCW Realty Company, ("Atchley") appeals a grant of summary judgment in favor of defendants-appellees RK Company and Robert and Donna Krilich. For the reasons stated below, we AFFIRM.

I.

The following facts are not in dispute. This case centers around a piece of property located in Sumner County, Tennessee, known as "Foxland." In 1994, Krilich owned Foxland and entered into an agreement to transfer Foxland (and certain other assets) to Health Care Corporation of America, Inc. ("HCCA"), in exchange for some HCCA stock. Krilich and HCCA also agreed that they would not record the deed transferring Foxland from Krilich to HCCA until HCCA had registered the stock with the Securities and Exchange Commission.

In 1996, a real estate developer named Jimmy Stinson approached Krilich about buying Foxland. At first, Krilich told Stinson that HCCA owned Foxland, even though there was no recorded deed transferring the property from Krilich to HCCA. Acting upon this representation, Stinson entered into negotiations with HCCA to buy Foxland. HCCA then approached appellant Atchley, a real estate broker, who drew up a contract of sale between HCCA, as seller, and Stinson, as buyer. HCCA and Stinson signed Atchley's contract on May 8, 1997, agreeing that the purchase price for Foxland would be $16 million, Stinson would immediately pay HCCA $1,000 in earnest money, and HCCA would pay Atchley a commission of 6%, or $960,000, upon completion of the sale.

In February of 1997, however, a few months before Stinson and HCCA signed the Foxland sale contract, Krilich signed and recorded a deed transferring Foxland from himself to defendant RK Company, a company he controlled. HCCA learned of Krilich's action in April of 1997, when it finally recorded its own, earlier-signed deed, which had transferred Foxland from Krilich to HCCA. Thus, when HCCA entered into the May, 1997 contract to sell Foxland to Stinson, HCCA and Atchley both knew that there existed a potential title dispute.

Atchley addressed this potential title dispute in the HCCA/Stinson contract by adding certain language under the heading "Miscellaneous Conditions." Specifically, the contract provided:

[HCCA] hereby discloses that as of the date of the signing of this contract, the title to [Foxland] is the subject of pending negotiation and possible litigation with [Krilich], and at this time is not a clear and marketable title. This contract is contingent upon [HCCA] resolving all questions and issues regarding title, and obtaining clear and marketable title in order to transfer to [Stinson] clear and marketable title. If title is not made clear and marketable, this contract is null and void, and [HCCA] and [Stinson] shall hold each other harmless, and

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earnest money will be refunded to [Stinson].

At the time the contract was signed, HCCA and Atchley were hopeful that the title dispute with Krilich would be quickly resolved.

Unfortunately, HCCA's hope was false; HCCA and Krilich are currently litigating ownership of title to Foxland in the United States District Court for the Middle District of Tennessee.1 In October of 1997, it became clear to Stinson that HCCA was unable to timely2 meet the "miscellaneous condition" of "obtaining clear and marketable title." Accordingly, Stinson sought and obtained the return of his $1,000 earnest money. Stinson and HCCA never consummated their deal, so Atchley never received her expected $960,000 in commission. Stinson has...

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