Jeremy Archer v. The Home Team, Inc. ( 2020 )

10/15/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 8, 2020 Session
JEREMY ARCHER ET AL. V. THE HOME TEAM, INC. ET AL.
Appeal from the Chancery Court for Rutherford County
No. 17-CV-1631 J. Mark Rogers, Chancellor
No. M2019-01898-COA-R3-CV
This appeal arises from an alleged misrepresentation of real estate acreage. The plaintiffs
commenced an action against both the real estate agent and the seller claiming they
misrepresented that the property was 1.9 acres when it was only 1.16 acres. They asserted
claims against the real estate agent for misrepresentation and concealment and claims
against the seller for, inter alia, misrepresentation, concealment, and breach of contract.
Following discovery, the seller and real estate agent each filed motions for summary
judgment. The trial court summarily dismissed all claims against the real estate agent. The
court granted the seller partial summary judgment dismissing the claims based on
misrepresentation, concealment, and breach of contract. We affirm the dismissal of the
misrepresentation claims against both defendants because the undisputed facts establish
that the plaintiffs did not rely on the alleged misrepresentations in deciding to purchase the
property. We also affirm the dismissal of the plaintiffs’ concealment claims based on the
plaintiffs’ constructive notice of the correct acreage by way of a publicly recorded plat.
Additionally, we affirm the summary dismissal of the breach of contract claim given that
the warranty deed identifies the property by reference to the recorded plat, which shows
the correct acreage.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT, J., joined. RICHARD H. DINKINS, J., not participating.
Jay B. Jackson, Murfreesboro, Tennessee, for the appellants, Jeremy Archer and Crystal
Archer.
Janet Strevel Hayes and Ann Hogan Murphy, Knoxville, Tennessee, for the appellee, The
Home Team, Inc.
David A. Bates and Keaton A. Rye, Franklin, Tennessee, for the appellee, Steven Taylor.
OPINION
This case involves the purchase and sale of a newly constructed home and a
residential lot identified by a publicly recorded plat as Lot 2 in the Hall Farm Subdivision
in Rutherford County, Tennessee (“the property”). The buyers were Jeremy and Crystal
Archer (collectively, “Plaintiffs”). The seller was The Home Team, Inc. (“The Home
Team”), and Steven Taylor (“Mr. Taylor”) served as The Home Team’s real estate agent.
The property, was one of two adjoining lots shown in plat book 39, page 170,
Rutherford County Register of Deeds Office, purchased by The Home Team. The final plat
showed that Lot 1 contained 1.9 acres and Lot 2, the property, contained 1.16 acres. After
The Home Team began constructing a new home on each lot, Mr. Taylor created a listing
through the Multiple Listing Service (“MLS”), which was made available to the general
public on the internet.1 The MLS identified the property as “2 McKee Road” and
incorrectly stated that it contained 1.9 acres.
Following preliminary discussions between Mr. Taylor and Plaintiffs and visits to
the property by Plaintiffs, the parties executed a purchase and sale agreement on February
23, 2017. The purchase and sale agreement identified the property as: “All that tract of land
known as: 2 Mckee Road, Lascassas, Tennessee, 37085, as recorded in Rutherford County
Register of Deeds Office.”2 The deed book and page numbers were left blank.
Plaintiffs moved into the home on April 10, 2017, four days prior to the closing.
The sale closed on April 14, 2017, at which time The Home Team conveyed title to the
property by a warranty deed.
On September 29, 2017, Plaintiffs filed a complaint against The Home Team and
Mr. Taylor, (collectively, “Defendants”) in Rutherford County Chancery Court. Plaintiffs
alleged that Defendants misrepresented, through the MLS listing and orally, that the
property contained 1.9 acres when it actually contained 1.16 acres. Plaintiffs also alleged,
generally, that Defendants “hid” the true acreage from Plaintiffs. Plaintiffs contended the
acreage was a material factor in deciding to purchase the property, and they justifiably
relied on Defendants’ misrepresentations.
1
The postal address for Lot 2 is 9933 McKee Road, Lascassas, TN 37085.
2
The purchase and sale agreement described the property as follows: “All that tract of land known
as: __2 Mckee Road__ (Address) __Lascassas__ (City), Tennessee, __37085__ (Zip), as recorded in
__Rutherford County [sic]__ County Register of Deeds Office, _____ deed book(s), ______ page(s), . . .”
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Based on those alleged facts, Plaintiffs claimed Mr. Taylor was liable for intentional
or reckless misrepresentation, negligent misrepresentation, and non-disclosure or
concealment. Plaintiffs claimed The Home Team was liable for intentional or reckless
misrepresentation, non-disclosure or concealment, breach of purchase contract, breach of
warranty, and reformation of the transaction.3 As a remedy, Plaintiffs requested, inter alia,
that the court reform the transaction by awarding Plaintiffs additional acreage from Lot 1
so that Plaintiffs received a lot containing 1.9 acres. Thus, in addition to their complaint,
Plaintiffs filed an Abstract and Notice to Fix a Lien Lis Pendens to Lot 1.
Thereafter, The Home Team and Mr. Taylor each filed separate answers denying
Plaintiffs’ claims, and the parties proceeded with discovery.4
Following discovery, The Home Team filed a motion for summary judgment as to
Plaintiffs’ claims of misrepresentation, non-disclosure or concealment, breach of contract,
breach of warranty, and reformation. In addressing the misrepresentation and concealment
claims, The Home Team contended it was undisputed that The Home Team did not prepare
the MLS data containing the alleged misrepresentation; Mr. Taylor did. Additionally, The
Home Team submitted a copy of the final plat recorded on April 11, 2016, by the
Rutherford County Register of Deeds showing that the property contained 1.16 acres. The
Home Team argued Plaintiffs’ misrepresentation and concealment claims failed as a matter
of law because Plaintiffs had constructive notice of the correct acreage through the
recorded plat.
With regard to the breach of contract, breach of warranty, and reformation claims,
The Home Team argued that, through the doctrine of merger, the purchase and sale
agreement merged into the warranty deed, such that the warranty deed became the final
contract between the parties. The warranty deed submitted by The Home Team did not
explicitly provide the acreage of the property but identified it by reference to the final plat,
which stated the correct acreage. Therefore, the breach of contract, breach of warranty and
reformation claims failed as a matter of law.
Additionally, The Home Team filed a supplement to its motion for summary
judgment to address Plaintiffs’ allegation that The Home Team’s owner and president,
Shannon Hicks, orally misrepresented to them on one occasion that the property contained
approximately two acres. The Home Team identified and relied on evidence which
established, without dispute, that Mr. Hicks made the statement after the purchase and sale
3
Plaintiffs also filed other claims against The Home Team, and The Home Team included some of
those claims in their motion for summary judgment, but they are not the subject of this appeal.
4
The Home Team also filed counter claims, but they are not the subject of this appeal.
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agreement was executed. Therefore, Plaintiffs could not have relied on the alleged
misrepresentation in deciding to purchase the property.
Mr. Taylor filed a separate motion for summary judgment as to all claims against
him. Mr. Taylor conceded he erred when preparing the MLS data, in that, he mistakenly
identified the property as Lot 1 and stated that it was 1.9 acres. This error notwithstanding,
Mr. Taylor asserted that Plaintiffs were aware they were purchasing Lot 2. Moreover, he
identified and relied on the Disclaimer Notice Plaintiffs executed, which stated in bold type
immediately above their signatures: “The buyers and sellers acknowledge that they have
not relied upon the advice, casual comments, or verbal representations of any real
estate licensee relative to any of the matters itemized above or similar matters.”
Further, Mr. Taylor asserted that Plaintiffs’ misrepresentation and concealment claims
failed because the true acreage of the property was a matter of public record, and the
Disclaimer Notice urged Plaintiffs to conduct an independent investigation into the correct
acreage of the property and advised Plaintiffs not to rely on the MLS data for that
information.
In Plaintiffs’ response to both motions, Plaintiffs submitted their affidavits, each
stating that the MLS identified the property as Lot 1, not Lot 2, and that the lot was
approximately two acres. Plaintiffs claimed they relied on those misrepresentations when
they decided to purchase the property. They also claimed that Defendants “held
information from us that prevented us from being able to locate the real estate plat in the
Register of Deeds Office. We could not locate the recorded plat with the information given
to us nor were we ever told there was a recorded plat to locate[.]”
The trial court held a hearing on both motions on February 14, 2019. On March 7,
2019, the trial court summarily dismissed Plaintiffs’ reformation claim and ordered that the
lien lis pendens be removed from Lot 1.
In an order entered September 24, 2019, the trial court granted partial summary
judgment to The Home Team for intentional or reckless misrepresentation,
misrepresentation by concealment or non-disclosure, breach of purchase contract, and
breach of warranty. Specifically, the court found:
Notably, [Plaintiffs] moved into the home located on the property four days
prior to closing, and on the date of closing acknowledged and accepted the
closing documents including the Purchase and Sale Agreement and Warranty
Deed. The Doctrine of Merger necessitates this Court to conclude that the
accepted documents contain the entire agreement between the parties. . . .
The Warranty Deed clearly and unmistakably identifies the property as that
contained in Plat Book 39 at page 170 as the real property contracted for,
purchased by, and conveyed to [Plaintiffs] on the date of closing. There was
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no justifiable reliance by [Plaintiffs] on an MLS listing not mentioned or
incorporated in the Warranty Deed. The exact acreage of the subject property
was not concealed, as it was a matter of public record of which [Plaintiffs]
had notice. [Plaintiffs] were on notice of the actual acreage of the subject
property as a matter of law. Any mistake of [Plaintiffs] regarding disparity
in the amount of acreage listed between the MLS and the Plat Book is
inexcusable and immaterial. . . . The record notice of the acreage conveyed
in the real estate transfer is fatal to [Plaintiffs’] claims.
In a separate order entered on the same day, the trial court summarily dismissed all
claims against Mr. Taylor based on the foregoing reasoning and the following:
[Plaintiffs’] claims of misrepresentation, non-disclosure, and concealment
are barred by [Plaintiffs’] signing of the written Disclaimer Notice on
February 23, 2017, coupled with their failure to exercise ordinary diligence
and failure to discover reasonably discoverable information prior to closing.
The contract language regarding disclaimer and record notice of the acreage
conveyed in the real estate transfer are fatal to [Plaintiffs’] claims.
Plaintiffs appealed the trial court’s grant of summary judgment on all claims against
Mr. Taylor pursuant to Tenn. R. App. P. 3. Plaintiffs also obtained permission from the
trial court to file an interlocutory appeal pursuant to Tenn. R. App. P. 9 to challenge the
trial court’s grant of partial summary judgment to The Home Team. We granted Plaintiffs’
Rule 9 application and consolidated both appeals.
STANDARD OF REVIEW
This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955 S.W.2d
49, 50 (Tenn. 1997). In so doing, we consider the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences in that party’s favor. Godfrey v.
Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).
Summary judgment should be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for summary judgment
does not bear the burden of proof at trial, it may satisfy its burden of production “either (1)
by affirmatively negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party's evidence at the summary judgment stage is
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insufficient to establish the nonmoving party's claim or defense.” Rye, 477 S.W.3d at 264
(emphasis in original).
When a motion for summary judgment is made and supported as provided in Tenn.
R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that
there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to
resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall, 847
S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.
ANALYSIS
Plaintiffs contend the trial court erred by summarily dismissing their claims of
misrepresentation and concealment against both defendants and by summarily dismissing
their breach of contract claim against The Home Team.5
I. MISREPRESENTATION
Plaintiffs contend Defendants misrepresented the acreage of the property, which
was a material consideration when they decided to purchase it. Defendants argue that there
is no evidence of reliance, and even so, Plaintiffs’ claims fail based on their constructive
knowledge of the correct acreage.
A claim for intentional or reckless misrepresentation requires proof that
1) the defendant made a representation of an existing or past fact; 2) the
representation was false when made; 3) the representation was in regard
to a material fact; 4) the false representation was made either knowingly
or without belief in its truth or recklessly; 5) plaintiff reasonably relied
on the misrepresented material fact; and 6) plaintiff suffered damage as a
result of the misrepresentation.
Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn. 2008).
5
Plaintiffs also contend the trial court erred on March 7, 2019, by ordering that the lien lis pendens
be removed from Lot 1. The Home Team argues that the issue is not properly before this court because we
granted Plaintiffs’ interlocutory appeal only as to the September 24, 2019 order. We agree. “Under Rule 9
of the Tennessee Rules of Appellate Procedure, we are limited on appeal to the questions certified by the
trial court in its order granting permission to seek an interlocutory appeal and in this Court’s order granting
the appeal.” In re Bridgestone/Firestone, 286 S.W.3d 898, 902 (Tenn. Ct. App. 2008). Therefore, we will
not consider the lis pendens issue. Even so, the issue is pretermitted by our ruling on the other issues.
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Similarly, a claim for negligent misrepresentation requires proof that the defendant
supplied false information to the plaintiff, did not exercise reasonable care in obtaining or
communicating the false information, and the plaintiff justifiably relied on the information.
Id. (citing Williams v. Berube & Assocs., 26 S.W.3d 640, 645 (Tenn. Ct. App. 2000);
Robinson v. Omer, 952 S.W.2d 423, 427 (Tenn. 1997)).
Because Plaintiffs’ claims of misrepresentation against The Home Team and Mr.
Taylor are based on different facts, we will discuss each claim separately.
A. The Home Team
Plaintiffs’ claim against The Home Team is based on the allegation that Mr. Hicks
orally misrepresented to them, on one occasion, that the property was about two acres.
Crystal Archer’s deposition testimony was as follows:
Q. We’ve talked about a conversation with Shannon Hicks in which you
allege he said it was two acres; do you recall that conversation?
A. Uh-hum. I do.
Q. Okay. And it was just one conversation –
A. Yes.
Q. –there wasn’t multiple times?
A. Just one conversation.
Q. When Jeremy was testifying he couldn’t really nail down a date of when
that occurred, so just so we can have a timeline, he had said that it was after
the driveway was completed?
A. Correct. Which the driveway was poured. And it shows in e-mails that
Shannon e-mailed me on March 14 that the concrete would be poured the
next day. So on March 15, sometime, therefore, or after.
. . .
Q. Okay. So this conversation would have occurred sometime in the middle
of March?
A. Possibly. It was between middle of March to sometime before closing.
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Q. Okay. But it definitely did not occur before March 1?
A. Correct.
In addition to Mrs. Archer’s testimony, Mr. Hicks testified that he only spoke with
Plaintiffs on one occasion, which was after Plaintiffs executed the purchase and sale
agreement on February 23, 2017. Therefore, no reasonable trier of fact could find that
Plaintiffs relied on Mr. Hicks’ alleged misrepresentation of the acreage when deciding to
purchase the property.
Accordingly, we affirm the summary dismissal of Plaintiffs’ misrepresentation
claim against The Home Team.
B. Steven Taylor
Plaintiffs’ claim that Mr. Taylor intentionally, recklessly, and negligently
misrepresented the acreage of the property, orally and through the MLS, and Plaintiffs
justifiably relied on his alleged misrepresentations. Although Mr. Taylor admits that he
negligently misrepresented the acreage, he relies on the Disclaimer Notice to refute
Plaintiffs’ claim that they relied on his representations in deciding to purchase the property.
The Disclaimer Notice provides, in relevant part:
8. BOUNDARY LINES, EASEMENTS, ENCROACHMENTS, AND
ACREAGE. It is strongly advised that you secure the services of a licensed
surveyor for a full-stake boundary survey with all boundary lines, easements,
encroachments, flood zones, total acreage, etc., clearly identified. It is also
advised that you not rely on mortgage loan inspection surveys, previous
surveys, plat data, or Multiple Listing Service (MLS) data for this
information, even if acceptable to your lender.
(Emphasis added).
And following paragraph 8, just above Plaintiffs’ signatures, in bold type, the Disclaimer
Notice states:
The buyers and sellers acknowledge that they have not relied upon the
advice, casual comments, or verbal representations of any real estate
licensee relative to any of the matters itemized above or similar matters.
The buyers and sellers understand that it has been strongly
recommended that they secure the services of appropriately
credentialed experts and professionals of the buyer’s or seller’s choice
for the advice and counsel about these and similar concerns.
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Therefore, no reasonable juror could find that Plaintiffs relied on Mr. Taylor’s
representations or that Plaintiffs’ reliance on the MLS data was justified.
Accordingly, we affirm the trial court’s decision to summarily dismiss the
misrepresentation claims against Mr. Taylor.6
II. CONCEALMENT
Plaintiffs base their concealment claims on the allegation that Defendants “hid” the
correct acreage from Plaintiffs by failing to inform Plaintiffs of the recorded plat’s
existence and by withholding pertinent information needed to locate the plat. Additionally,
Plaintiffs contend that, had they viewed the plat, “no problem would have been readily
apparent anyway” because Mr. Taylor referred to the property as Lot 1 in the MLS, and
Lot 1 contained 1.9 acres. Defendants counter insisting Plaintiffs knew they were buying
Lot 2, and they had constructive knowledge of the correct acreage of Lot 2. Moreover,
Defendants insist they had no duty to disclose the acreage of the property because it was
discoverable through ordinary diligence.
A defendant is liable for non-disclosure or concealment when the defendant has a
duty to disclose a known fact, the defendant fails to disclose that fact, and the plaintiff
reasonably relies on the resulting misrepresentation, which causes injury. Odom v. Oliver,
310 S.W.3d 344, 349 (Tenn. Ct. App. 2009); Justice v. Anderson Co., 955 S.W.2d 613,
616 (Tenn. Ct. App. 1997). There is no duty to disclose a fact “where ordinary diligence
would have revealed the undisclosed fact.” Id. at 350; PNC Multifamily Capital
Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 550
(Tenn. Ct. App. 2012). “As a general rule[,] to constitute fraud by concealment or
suppression of the truth there must be something more than mere silence, or a mere failure
to disclose known facts.” Cont’l Land Co. v. Inv. Properties Co., No. M1998-00431-COA-
R3-CV, 1999 WL 1129025, at *5 (Tenn. Ct. App. Dec. 10, 1999) (quoting Hall v.
DeSaussure, 297 S.W.2d 81, 87 (Tenn. 1956)). Concealment is “withholding information
asked for, or . . . making use of some device to mislead, thus involving act and intention.”
Id. (quoting Hall, 297 S.W.2d at 87).
Pertinent here, when one “who is in possession of all material facts, either actually
or constructively, proceeds with a purchase of realty, notwithstanding such knowledge,
such a person cannot thereafter recover on the basis of fraud, misrepresentation, or
concealment of the information to which all parties had equal access.” Winstead, 709
6
In the following section we have determined that Plaintiff had constructive knowledge of the
correct acreage, which is also fatal to Plaintiffs’ misrepresentation claims. See Winstead v. First Tenn. Bank
N.A., Memphis, 709 S.W.2d 627, 633 (Tenn. Ct. App. 1986).
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S.W.2d at 633 (emphasis added). “Constructive notice is notice implied or imputed by
operation of law and arises as a result of the legal act of recording an instrument under a
statute by which recordation has the effect of constructive notice.” Blevins v. Johnson Cty.,
746 S.W.2d 678, 682–83 (Tenn. 1988). “All recorded instruments such as deeds and
judgments ‘shall be notice to all the world from the time they are noted for registration, ...
and shall take effect from such time.’” Trent v. Mountain Commerce Bank, No. E2018-
01874-SCR-11-CV, 2020 WL 5036205, at *4 (Tenn. Aug. 26, 2020) (quoting Tenn. Code
Ann. § 66-26-102).
On April 11, 2016, the Rutherford County Register of Deeds recorded a plat of the
property in plat book 39, page 170. The plat showed four lots adjoining McKee Road, and
it showed that Lot 2, the property, contained 1.16 acres.
Considering the evidence in the record, we find it disingenuous for Plaintiffs to
argue that, had they viewed the plat, the correct acreage would not have been readily
apparent. It is undisputed that Plaintiffs knew the physical location of the property; they
moved into the home on the property four days before the closing.
Moreover, the evidence in the record shows that, aside from the initial
misidentification of the property through the MLS as Lot 1, Defendants repeatedly referred
to it as Lot 2. Mr. Archer conceded that fact in his deposition testimony:
Q. And would you agree with me that as of [the day of closing], the property
had been referred to to you all several times as being Lot Number Two?
A. Yes.
And supporting Mr. Archer’s deposition testimony is an email in the record from Mr.
Taylor to Crystal Archer sent on February 14, 2017, which states in the subject line: “Lot
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2 McKee Road questions.” Therefore, it is undisputed that Defendants informed Plaintiffs
that Plaintiffs were purchasing Lot 2 on McKee Road and the publicly available plat
showed that Lot 2 contained 1.16 acres.
Given that the correct acreage was a matter of public record, Plaintiffs’ concealment
claims fail for two reasons: (1) Defendants did not have a duty to disclose the acreage of
the property because publicly recorded information is discoverable through ordinary
diligence, see PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship, 387 S.W.3d
at 550; See Trent, 2020 WL 5036205, at *4 (publicly recorded information is accessible
through ordinary diligence); and (2) a plaintiff cannot recover on a claim of
misrepresentation or concealment when the plaintiff has constructive knowledge of the
material fact at issue. See Winstead, 709 S.W.2d at 633.
Accordingly, we affirm the trial court’s decision to summarily dismiss Plaintiffs’
non-disclosure and concealment claims.
II. BREACH OF CONTRACT
Plaintiffs contend The Home Team breached the purchase and sale agreement by
conveying a lot containing 1.16 acres, instead of 1.9 acres. Plaintiffs contend the evidence
in the record raises a genuine dispute as to that fact. They also assert that the purchase and
sale agreement is ambiguous regarding the amount of acreage; therefore, parol evidence is
admissible to make that determination.
The Home Team argues that, through the doctrine of merger, the purchase and sale
agreement merged into the warranty deed, such that the warranty deed became the final
contract between the parties. And the warranty deed is not ambiguous as to the property to
be conveyed, identifying it by way of the publicly recorded plat, which states the correct
acreage.
To prevail on a breach of contract claim, the plaintiff must establish “(1) the
existence of an enforceable contract, (2) nonperformance amounting to a breach of the
contract, and (3) damages caused by the breach of the contract.” ARC LifeMed, Inc. v.
AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (citations omitted).
Tennessee recognizes the doctrine of merger whereby when “an executory
contract has been entered into between the parties for the sale and purchase
of real estate, and subsequently the property is conveyed by a deed to the
purchaser named in the contract, that the contract of sale being merely an
executory contract merges into the deed and the deed, therefore, becomes the
final contract which governs and controls.” Fuller v. McCallum &
Robinson, 22 Tenn. App. 143, 118 S.W.2d 1028, 1037 (Tenn.Ct.App. 1937).
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City of Memphis for Use & Benefit of State v. Moore, 818 S.W.2d 13, 15–16 (Tenn. Ct.
App. 1991).
Plaintiffs’ arguments focus on the purchase and sale agreement, which identified
the property as “2 McKee Road” but did not provide the acreage. Defendants assert that “2
McKee Road” was in reference to Lot 2 on McKee Road. Plaintiffs argue that “2 McKee
Road” is ambiguous and could refer to Lot 1. Plaintiffs also contend it is disputed whether
Plaintiffs intended to purchase Lot 1 or Lot 2. However, this argument is unavailing
considering that there is no evidence in the record to indicate that Plaintiffs intended to
purchase Lot 1. On the contrary, the record shows that Plaintiffs visited Lot 2 on numerous
occasions and moved into the newly-constructed home on Lot 2 four days prior to closing.
Nevertheless, through the doctrine of merger, the purchase and sale agreement
merged into the warranty deed, such that the warranty deed became the final contract
between the parties. And the warranty deed is unambiguous as to the property to be
conveyed, describing it as follows:
Being all of Lot No. 2 as shown on the Final Plat – Section I, Hall Farm
Subdivision, as shown on the plan of record in Plat Book 39, page 170,
Register’s Office of Rutherford County, Tennessee, to which plat reference
is hereby made for more complete details of location and description of said
lot.
The final plat referenced in the deed shows that Lot 2 is 1.16 acres. Because the
purchase and sale agreement merged into the warranty deed and the final plat is
incorporated into the warranty deed, the amount of acreage to be conveyed is unambiguous.
Therefore, parole evidence is inadmissible on this issue. See Individual Healthcare
Specialists, Inc. v. BlueCross BlueShield of Tennessee, 566 S.W.3d 671, 694–95 (Tenn.
2019) (The parol evidence rule provides that an oral agreement made prior to or
contemporaneous with the execution of a written contract cannot add to, vary, or contradict
the unambiguous terms of the contract).
Accordingly, we affirm the summary dismissal of Plaintiffs’ breach of contract
7
claim.
7
Plaintiffs contend that the trial court erred in summarily dismissing Count IV of their complaint,
which also states a claim for breach of warranty; however, Plaintiffs did not properly address the breach of
warranty claim in their brief on appeal. “If we cannot ascertain that an issue is supported by adequate
argument, compliance with [Tenn. R. App. P. 27] has not been achieved,” and the issue is “subject to
waiver.” Heflin v. Iberiabank Corp. 571 S.W.3d 727, 734 (Tenn. Ct. App. 2018). Therefore, the issue is
waived.
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IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Jeremy and Crystal Archer.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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