Kimberly E. Lapinsky v. Janice E. Cook

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 20, 2016 Session
KIMBERLY E. LAPINSKY v. JANICE E. COOK, ET AL.
Appeal from the Chancery Court for Sevier County
No. 14-1-005 Telford E. Forgety, Jr., Chancellor
No. E2015-00735-COA-R3-CV-FILED-SEPTEMBER 26, 2016
Kimberly E. Lapinsky (“Plaintiff”) appeals the order of the Chancery Court for Sevier
County (“the Trial Court”) granting summary judgment to Janice E. Cook, Kevin D.
Cook (“the Cooks”) and Brenda Brewster (“Brewster”) in this lawsuit that arose from the
sale of a house by the Cooks to Plaintiff. Plaintiff raises issues on appeal with regard to
whether the Trial Court erred in granting summary judgment and whether the Trial Court
erred in failing to allow Plaintiff to conduct additional discovery prior to ruling on the
motions for summary judgment. The Cooks raise an issue regarding whether the Trial
Court erred in denying their motion for attorney’s fees pursuant to Tenn. Code Ann. § 47-
18-109. We find and hold that the Trial Court did not abuse its discretion in refusing to
allow further discovery, that the defendants made properly supported motions for
summary judgment, and that Plaintiff failed to show that there is a genuine disputed issue
of material fact. As the Cooks and Brewster made properly supported motions for
summary judgment and are entitled to summary judgment, we affirm the grants of
summary judgment. We further find and hold that the Trial Court did not abuse its
discretion in denying the motion for attorney’s fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J.W.S. and JOHN W. MCCLARTY, J., joined.
Douglas E. Taylor, Seymour, Tennessee, for the appellant, Kimberly E. Lapinsky.
Chris W. McCarty, W. Paul Whitt, and Mikel A. Towe, Knoxville, Tennessee; and
Catherine B. Sandifer, Pigeon Forge, Tennessee, for the appellee, Janice E. Cook.
David M. Tilson, Morristown, Tennessee; and Mary Pamela Huddleston, Pigeon Forge,
Tennessee, for the appellee, Kevin D. Cook.
Jon G. Roach, Knoxville, Tennessee, for the appellee, Brenda Brewster.
OPINION
Background
In May of 2013, Plaintiff and the Cooks entered into a Purchase and Sale
Agreement (“the Contract”) for Plaintiff to purchase from the Cooks real property
containing a house located at 1998 Tranquility Lane (“the House”) in Sevier County,
Tennessee. Brewster was the real estate agent for the Cooks in connection with the sale
of the House. The Contract stated, in pertinent part:
8. Inspections.
***
E. Waiver of All Inspections. THIS BOX MUST BE CHECKED TO
BE PART OF THIS AGREEMENT.
Buyer, having been advised of the benefits of inspections, waives any
and all Inspection Rights under this Paragraph 8 (including but not
limited to the Wood Destroying Insect Inspection Report).
9. Final Inspection. Buyer and/or his inspectors/representatives shall have
the right to conduct a final inspection of Property no later than 1 days prior
to the Closing Date only to confirm Property is in the same or better
condition as it was on the Binding Agreement Date, normal wear and tear
excepted, and to determine that all repairs/replacements agreed to during
the Resolution Period, if any, have been completed. Property shall remain
in such condition until Closing at Seller’s expense. Closing of this sale
constitutes acceptance of Property in its condition as of the time of Closing,
unless otherwise noted in writing.
***
18. Special Stipulations. The following Special Stipulations, if conflicting
with any preceding paragraph, shall control:
1. Contract is contingent upon the buyers [sic] house in Commerce
TWP, Michigan closing on or before June 10, 2013.
2. Seller to give the buyer first-right of refusal to purchase on sellers
[sic] lot on Tranquility Bend – Lot 14. (Right next door to this house).
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3. Seller to repair/replace/paint fix:
a. Fix/paint white trim that is peeling on the driveway side.
b. Re-flash/repair bow window in the office (water stains on
ceiling) – as there is water intrusion
c. Repair/replace the roof shingles where needed.
4. Wood-destroying insect inspection will stay with the contract until
completed.
Plaintiff checked the box for the “Waiver of All Inspections,” waiving the inspection
rights and responsiblities provided for under paragraph eight of the Contract.
The closing on the House occurred on June 14, 2013. In connection with the
closing, Plaintiff executed a Buyer’s Final Inspection form (“Final Inspection Form”) on
June 14, 2013. The Final Inspection Form stated, in pertinent part:
We, the Buyers, and/or our inspectors and/or our representatives, . . . .
***
Have made the final inspection of the Property and confirm it to be in the
same or better condition as it was on the Binding Agreement Date, normal
wear and tear excepted, and all repairs and replacements, if any, have been
made to our satisfaction, and we agree to accept the Property in its present
condition.
***
This Buyer’s Final Inspection is made a part of the Purchase and Sale
Agreement as if quoted therein verbatim. Should the terms of this Buyer’s
Final Inspection conflict with the terms of the Purchase and Sale
Agreement or other documents executed prior to or simulantous to the
execution of this Buyer’s Final Inspection, the terms of this Buyer’s Final
Inspection shall control, and the conflicting terms are hereby considered
deleted and expressly waived by both Seller and Buyer. In all other
respects, the Purchase and Sale Agreement shall remain in full force and
effect.
The sale closed, and Plaintiff took possession of the House. In January of 2014,
Plaintiff sued the Cooks, Brewster, and Tennessee Farmers Mutual Insurance Companies
(“Farmers Insurance”) alleging claims for, among other things, breach of contract,
intentional misrepresentation, conspiracy, and violation of the Tennessee Consumer
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Protection Act of 1977. Plaintiff alleged that she discovered after the closing that the
House had not been repaired as agreed in the Contract, that defects and damages had been
hidden which allegedly eventually caused more damage to the House, and that the Cooks
and Brewster had made misrepresentations with regard to the septic permit and the septic
system. Brewster answered the complaint. Farmers Insurance answered the complaint,
filed a counter claim against Plaintiff, and filed a cross-claim against the Cooks. The
Cooks answered the complaint and each filed a cross-claim against Brewster.
The Cooks filed a joint motion for summary judgment supported by, among other
things, the affidavit of Janice Cook, which stated, in pertinent part:
4. I was a homeowner making the isolated sale of my residence in
connection with the Agreement and the sale of the Property to [Plaintiff].
5. I was not engaged as a real estate agent or broker selling houses in the
course of the real estate trade, nor was I otherwise engaged in business or
commercial activity with respect to the Agreement and the sale of the
Property to [Plaintiff].
***
7. I was never involved in any conspiracy with anyone regarding the sale of
the Property.
8. In connection with the sale of the Property, the parties to the Agreement
executed a “Buyer’s Final Inspection” form (“Final Inspection Form”) on
June 14, 2013.
Kevin Cook filed a similar affidavit that stated, in pertinent part:
4. I was a homeowner making the isolated sale of my residence in
connection with the Agreement and the sale of the Property to [Plaintiff].
5. I was not engaged as a real estate agent or broker selling houses in the
course of the real estate trade, nor was I otherwise engaged in business or
commercial activity with respect to the Agreement and the sale of the
Property to [Plaintiff].
***
7. I was never involved in any conspiracy with anyone regarding the sale of
the Property.
Brewster also filed a motion for summary judgment.
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Plaintiff was deposed. During her deposition, Plaintiff testified that she closed on
the sale of the House voluntarily and of her own free will. When asked what she did to
inspect the House prior to closing, Plaintiff stated:
We went to the home. We made an appointment to get in and inspect the
house and the damages, and I couldn’t tell you the date. And my husband
inspected the full house and we made the conditions with - - Phil Derosia
was with us at the time.
And upon being done for the final purchase of the house, we
required the conditions of the roof, the water damage to the inside of the
home, and the flashings on the side of the home to be installed properly
because there was water instrusion into the home.
Phil Derosia was Plaintiff’s real estate agent in connection with Plaintiff’s purchase of
the House.
Plaintiff testified that she did not hire a contractor or inspector to inspect the
House because her husband is a licensed general contractor in Michigan, and he inspected
the House. Plaintiff testified that her husband has been a builder for approximately 35
years. Plaintiff accompanied her husband when he inspected the House.
When asked what her husband did to inspect the House, Plaintiff stated:
Well, he went through basically everything. He went up on the roof. He
went on the ladder to the sides and the flashings. He inspected the brick.
He inspected the basement. He inspected the insulation, the wiring, the
water lines in the - - I mean, he inspected everything. . . . Inside and out. . .
. If it was visible, absolutely, he would - - if it was visible, yeah, I guess
you could say he saw it.
Plaintiff agreed that she relied upon her husband’s inspection.
Plaintiff testified that her husband was with her for the final inspection on the day
of closing. She stated: “We didn’t get really to have a final inspection that day.” When
asked why she did not get to have a final inspection, Plaintiff stated:
Our real estate agent, Phil Derosia, kept contacting the Cooks’ real estate
agent, Brenda Brewster, to get us in for final inspection on the home.
Finally, we got a phone call that told us that we should have made an
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appointment previous to that, but, yeah, they would let us in for final
inspection, which was approximately, and I’m not going to quote myself, it
was about 45 minutes before closing at the Smoky Mountain Title.
And, so, my husband, who did not have a ladder to get up on it at
this point to do final inspection, so we thought that at our closing we’d be
able to question Ms. Brewster and the Cooks of the work that was supposed
to be - - have been done to the house, but they were not there.
Plaintiff was asked if she could have set a different closing date in the Contract,
and she stated:
No. . . . I had to have it June 14, 2013. . . . Because my home was still up
in Michigan, our home was being sold - - had been sold in Michigan. So it
was on a time frame of us traveling back down here and the closing up in
Michigan to be able to close on this home down here.
Planitiff agreed that this was not a circumstance forced upon her by the Cooks. Plaintiff
was asked if she could have moved the closing date in the Contract back to give more
time for inspection, and she stated:
No, I wouldn’t. . . . Well, at the closing that we had set up, we made
explicit travel arrangements to come down here for the closing of - - [the
House] . . . . And with my health issues and whatever, there was time
frames that I could be down here this many certain days and then get back
to Michigan for the pack up and whatever of our home because, then, we
were moving our - - our closing - - . . . .
Plaintiff was asked about the work that was to have been done to the House
pursuant to the Contract. Plaintiff admitted that pursuant to the Contract, the only things
the Cooks were to have repaired/replaced/painted/fixed were the three things listed in the
Contract as:
Seller to repair/replace/paint fix:
a. Fix/paint white trim that is peeling on the driveway side.
b. Re-flash/repair bow window in the office (water stains on
ceiling) – as there is water intrusion
c. Repair/replace the roof shingles where needed.
Plaintiff explained that the flashing that was supposed to be repaired pursuant to
the Contract was located “off the office” and “off the master bedroom” on the bay
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windows. Plaintiff admitted that both of these spots were on the exterior of the House
and could be seen from the exterior of the House.
Plaintiff was questioned about the provision in the Contract requiring the Cooks to
fix/paint white trim that is peeling on the driveway side, and she stated that this trim was
located on the “peak of the house,” and also was on the exterior of the House. Plaintiff
admitted that she would not have needed access to the interior of the house to see that
trim.
Plaintiff was asked who came up with the contingency in the Contract to
repair/replace the roof shingles where needed, and she stated that her husband did.
Plaintiff was asked if her husband believed that there were roof shingles that needed to be
repaired or replaced, and she stated:
Pretty much the whole roof because there was - - there was, you know,
spots of the roof that had been covered over, and so there were shingles that
were missing. We decided that we would take care of the gutters ourself.
This is all requested through our realtor, Phil and Darlene Derosia.
Plaintiff agreed that missing shingles could be seen from the ground elevation outside the
House, and that they did not need access to the interior of the House to see them.
Plaintiff was asked what she contended was done to conceal problems with the
roof, and she stated:
There was tar and caulk put into holes on the roof. You got to go - - I’m
going by hearsay with my husband, so I don’t know the specifics. But there
was shingle, what he called shingle dust put over it to kind of cover up
those tarred areas.
The caulking that was done, the flashing was not done. What was
done was big tubes of caulk thrown in behind the flashings and down the
flashings, and tar and caulk thrown into where shingles should have been
on the roof.
Plaintiff admitted that these things were visible when her husband got on the roof after
closing.
Plaintiff admitted that she closed on the Property knowing that the Contract
contained a clause that stated: “Closing of this sale constitutes acceptance of Property in
its condition as of the time of Closing, unless otherwise noted in writing.” Plaintiff also
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admitted that she understood that she needed to conduct an inspection of the House prior
to closing. She further admitted that she received the Disclaimer Notice that warned that
failure to inspect meant accepting the House ‘as is.’
Plaintiff admitted that she signed the Final Inspection Form that stated that she
accepted the House in its present condition: “At closing, yes.” With regard to the Final
Inspection Form, Plaintiff stated: “This document was signed at the closing. That’s why I
put the time on there and expected that the Cooks, Janice and Kevin and their realtor,
would be at our closing. And that’s why I specifically put the time on this final
inspection, . . . .”
Plaintiff admitted that she voluntarily executed the Contract and that she was
under no duress to sign. She also admitted that she signed the Tennessee Residential
Property Condition Disclosure voluntarily and that she knew what she was signing.
Plaintiff further admitted that she signed the Additional Required Residential Disclosures
voluntarily. Plaintiff admitted she waived a home protection plan for the House and that
she signed the Final Inspection Form accepting the House in its present condition.
Plaintiff stated: “I did close on it of my own free will with the exception of being
able to speak to the Cooks and the real estate agent about the work that was supposed to
be performed on the home for final inspection.” She further stated:
[A]t that closing with the attorney that was present and not being able to get
the full final inspection, the question was raised from me to him, not
knowing Tennessee laws as far as purchase and selling of homes, I said we
weren’t allowed a full inspection, you know, the timing of a full inspection,
and I’m signing this pretty much under duress because I want to know if the
repairs were done and completed.
My reply that I got back was that they did sign off, the Cooks, that
the repairs were done and completed. And I said, “Well, I’m kind of stuck
not being able to do the full inspection.” And he says, “Well, you’ll have a
year warranty on it.”
Plaintiff could not recall the name of the attorney who was at the closing. She stated, “he
was the closer for Smoky Mountain Title.”
Plaintiff admitted that all of the conversations with the Cooks went through her
realtor to their realtor, Brewster. Plaintiff admitted that she never had any conversations
directly with Brewster. Plaintiff also admitted that the Cooks never told her she had a
warranty, and no one on behalf of the Cooks told Plaintiff that she had a warranty.
8
Plaintiff testified that she started seeing problems with the House “immediately.”
She stated:
It was the roof, the water seepage in through our bedroom, water seepage
into the, what we call the bunker room where the water heater is down in
the basement. Quite a few different things. I don’t remember them all.
The main thing was the roof and the flashings on the home.
Plaintiff testified about a sudden storm, which occurred in September of 2013, after she
had closed and taken possesion of the House. She stated:
And all of a sudden, a storm hit, and as we were - - came up from the
basement, rain was pouring in between what we call the breakfast nook and
the kitchen area of the home, and water seepage, you know, the ceilings
were wet. It was just water everything. But that was the main spot that it
was just, you could see it just pouring into the house.
Plaintiff was questioned about her claim for conspiracy, and she stated:
So I feel because of the divorce between Mr. Cook and Ms. Cook, that they
needed their money immediately and that’s why it was not disclosed
properly to me. . . . Well, they are also friends. . . . That’s my personal
feeling, and the fact that Brenda Brewster and Ms. Cook are very good
friends, and that Ms. Brewster’s son was staying in the home out of his
mouth.
Plaintiff admitted that she has no personal knowledge of any agreement between the
Cooks and Brewster to engage in a conspiracy. When asked if she knew of anyone who
had knowledge of the existence of the alleged conspiracy, Plaintiff stated:
As a conspiracy between them, no, but wordings of sorts that - - that Ms.
Cook was very well aware of the damages to the house by filing the claim
and that she is friends with Brenda Brewster, so, obviously, Ms. Brewster
had to know of the damages before that house was sold.
When asked if the Cooks were real estate agents or brokers, Plaintiff admitted that
the House was the Cooks’s residence and that she had no idea what their employment
was.
9
Plaintiff’s husband1 also was deposed. Plaintiff’s husband testified that they
looked at other houses prior to looking at the House. He stated: “When we pulled up to
Tranquility Lane, she was thrilled. I just kind of got out, semi out of the car and I looked
at it. She was thrilled. I said, “Buy it.” That’s all I said.” He testified about his initial
inspection of the House stating:
I don’t remember exactly what day. What I do remember is I inspected the
house. It was approximately four hours and I went through every inch of it.
. . . It’s the average time. . . . Depending on the size of the home. But a
three bedroom home with that kind of square footage, yes. . . . Whatever I
do in the construction field and in the inspection field, I’m meticulous at it.
I look at stuff that might not even be there, but I still look.
When asked to state what he found when he inspected the House, Plaintiff’s
husband testified:
Starting from the exterior, I saw two shingles missing. I saw torn
shingles. I saw gutters hanging off the soffits, away from the soffits. I saw
mortar damage around the field stone. I saw deck posts split. I saw
damage to the garage door. I saw flashings over the bay windows
incorrectly installed and caulked.
I saw missing screens for a window. I saw a ripped screen for a
window. I saw the back of the garage that was not finished brick. I saw
paint missing on the fascia of the garage side of the home.
I saw wood boring - - at first I thought it was carpenter ants, but Phil
Derosia said it was wood-boring bees drilling into the deck posts of the
deck on the garage side.
I located the well. I measured from the well to the area described as
the septic field. . . . There was a piece of paper that showed a survey of the
septic field, the location of the tank and how the field was trenched and
laid. . . . I believe [that paper] was provided by Derosia.
***
1
Plaintiff’s husband was not a party to the purchase of the House and holds no interest in the House. As
such, he is not a party to this suit.
10
When I walked in, the first thing I noticed was the interior of the
house was not painted, it was just drywall primer. That was the first thing I
noticed. It was never painted.
As I walked through the home, I noticed scratches into the hardwood
appearing to be from a dog or something clawed, or maybe furniture pulled
across it, but pretty well scratched up, both in the living room, the hallway
and the master bedroom.
I noticed an enormous amount of light switches that was kind of odd.
I noticed water damage in what they called an office room. I noticed the
normal cracks where corner bead of drywall would come away from the
corner. . . . That would indicate a person that wasn’t a professional
drywaller. . . . It’s sloppy work.
***
I noticed in - - I don’t know if - - I guess they refer to it as a breakfast nook,
I call it the tower room, that the door in the tower room appeared to be - -
the frame was split and broken. It didn’t lock properly whatsoever.
I noticed the back door, which was wood, weathered extremely from
the outside and the frame of the inside where it locked, the frame was split.
Not anything visible as far as screw or nail pops from the drywall
installation visible from the floor. I saw a lot of paint runs or I should say
primer runs. . . . That’s just sloppy painting.
***
I noticed a very foul smell in the fireplace such as a dead animal.
As I went upstairs, I saw that the floor of the bathroom upstairs was
linoleum, unheard of. . . . [A]ny kind of humidity from shower or
dampness will lift linoleum up off a quarter of an inch of plywood. . . . I
didn’t see a problem, but I saw eventually a problem if the bathroom was
going to be used. . . . I saw that the venting of the main floor bathroom and
the upstairs bathroom was out of square. I noticed that the light on the
upstairs bathroom above the bathtub was off center.
***
11
Well, I also did notice upstairs that the electrical box was not
sufficient to, again, Michigan Code or US Code. I was not aware that at
that time Tennessee followed something called the International Code.
I also noticed that in the upstairs that there was no egress windows,
it was just regular windows. . . . For fire safety . . . a fireman with an
oxygen tank must be able to go through that window without any
obstruction whatsoever. . . . That is a Michigan code.
***
The basement then - - . . . the only thing I saw was open insulation,
totally against the Environmental Protection Agency Code. That’s like
breathing death, automatic cancer.
I noticed wetness on the block wall by the window by the walk-out
doors. I noticed that there was no control valves whatsoever for the
Sillcocks for the outside. I noticed that there was no cleanout whatsoever
inside the basement for the septic system.
And, of course, still thinking about how the septic field was laid,
being on a 45-degree pitch plus, I looked into the electrical box, the circuit
breakers, looking for a pump thinking that maybe there was a pump
installed to pump up the sewage up to it, but there was not.
The bathroom in the basement appeared to be never, never used
whatsoever.
The utility room - - the only think that I did notice is looking at the
lower Sillcock, to drain that water heater, the seal was still on the Sillcock,
which told me that the water heater was never cleaned - - drained or
cleaned.
I also noticed that electrical wires from the electrical box stretching
across, which would include 110 and 220 lines, were just hanging from the
ceiling unshielded.
I believe that’s about it.
12
Plaintiff’s husband testified that he told Plaintiff and her realtor “there is water
damage in the house.” He also stated:
There was water damage in the, what they call the business room. There
was slight water damage appears, slight water damage starting in the master
bedroom at the windows.
I said - - I stated that the flashings around both bay windows were
incorrectly installed and one of them replaced. And I went as far as sent
them, when I got back to Michigan, the right way to install flashing for bay
windows.
** *
And I told [Mr. Derosia] specifically I wanted all shingles replaced. . . . All
shingles. . . . Yes, on garage and home.
Plaintiff’s husband agreed that he had stated that he wanted a total re-roofing.
Plaintiff’s husband testified that he and Plaintiff obtained permission to place a
trailer at the House two days before closing, but were told they could not “unload it
because technically it wasn’t our property.”
Plaintiff’s husband was questioned about the final inspection, and he testified:
We were asking for final inspection. That was communicated to Phil
Derosia, which was being communicated to Brenda Brewster, and
continuously asking and asking. This was right after the trailer was
dropped off, so that was two days before closing.
The day before closing, it was the same, continuously asking for
final inspection with no reply from Brenda Brewster, continually,
continuously.
And then on the day of closing, we waited at the property for Phil
Derosia while my wife was still in conversation by cell phone to get
permission for final inspection from Brenda Brewster and still nothing.
Phil Derosia did arrive at the house. Still hadn’t had permission for
final inspection. And something, like, 30 to 40 minutes before closing, he
finally got permission.
13
Plaintiff’s husband testified that at that point the sale of the house in Michigan had
closed, and: “Money was already wired.” He stated:
All I said - - all I said was, “I don’t have enough time to do a final
inspection.” I kept saying that. I walked through the home. Never had a
chance to unload the trailer to get on the roof because there was a ladder in
that trailer.
And, again, 30 to 40 minutes. So I walked through the home and I
looked - -
***
I walked through the home. I walked into the room known as the business
room. I looked - - . . . . And all was - - the only thing that was done is the
ceiling was just primed over. . . . Well, whoever took a roller, stuck it in
primer and rolled over the spot of where the - - the spots across the ceiling
where the water was. . . . I walked outside. I walked down the front porch.
I leaned over the railing to look at the flashings. Nothing was done except
caulked. They were not replaced. . . . I came off the porch. I walked to the
street at the end of the driveway and I looked off at the roof. I saw a few
shingles replaced that were miscolored. . . . They didn’t match. . . . I
walked around to the bay window side of the home and I stepped back and
just looked and, again, I just saw caulk, an enormous amount of caulk
around the flashings.
I went from there around through the back and I approached the
garage. Nothing was done to the garage shingles whatsoever.
***
I came to my wife and Phil Derosia and they kept telling me what - - “we
got to go, you got to go to closing, you got to go to closing.” I said,
“Nothing was really done. They just painted over the water spots, they
didn’t do anything with the flashing except caulked them, and just replaced
a couple of shingles.” And it was said, “Well, at closing, you can discuss
that with Brenda Brewster and the Cooks at closing, plus you have one year
if there is a problem.”
14
When asked who told them they had one year if there was a problem, Plaintiff’s husband
stated: “I believe Phil Derosia said that.” Plaintiff’s husband did not hear any discussion
about postponing or extending the closing.
Plaintiff’s husband admitted that they found some bricks allegedly hidden in the
woods on the day of his initial inspection. He also admitted that he observed prior to the
closing that the House did not have a new roof and that the garage did not have a new
roof and that he pointed these facts out to his wife. Plaintiff’s husband admitted he did
not get on the roof when he did the first inspection of the House. He stated that he based
his demand for a new roof on the fact that he could see missing shingles, torn shingles,
and curled shingles, and “water leakage inside the home” without getting on the roof.
Plaintiff’s husband was asked if there was pressure for Plaintiff to close on the
House, and he stated:
It was - - there was pressure to close. I don’t know exactly where it comes.
I know it wasn’t pressure from my wife, but it seemed like there was
pressure to close. . . . I can’t indicate who, what, where because, again, I
was very frustrated, upset, especially after the effort I made of stating what
should have been replaced.
Plaintiff’s husband testified that the Cooks and Brewster were not at the closing.
He stated that he, Plaintiff, Phil Derosia, and a gentleman from the title company were
the only persons present at the closing. Plaintiff’s husband admitted that it was “[f]air to
say” that if there was pressure to close it came from Phil Derosia or the gentleman from
the title company. When questioned about the 90-day window to close and the fact that
the house in Michigan had already sold, Plaintiff’s husband stated: “We weren’t
desperate to purchase a home. . . . I mean, we could have leased something, we could
have just went to a hotel and stayed until we found one.”
After a hearing, the Trial Court entered its order on March 25, 2015, granting
summary judgment to the Cooks and Brewster after finding and holding, inter alia:
First of all, with respect to the - - to the contract claims against the
seller, we’ve got claims of - - of defects in the house that the buyers bought.
If you look at the contract, which is undisputed in the record under
paragraph eight entitled inspections: “The parties hereto agree that in the
event” - - well, I’m - - bottom line of it is, contract specifically provides
that the buyers had the right to inspect. It goes further: “The parties hereto
agree that in the event buyer shall elect a contract with a third party
inspector to obtain a, quote, home inspection, unquote, as defined by
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Tennessee law, said inspection shall be conducted by a licensed home
inspector.” The buyer had the right to hire a licensed home inspector, but -
- but she didn’t have to.
The contract goes on: “However nothing in this paragraph shall
preclude buyer from conducting any inspections on his/her own behalf, nor
shall it preclude buyer from retaining a qualified, and if required by law,
licensed professional to conduct inspection of particular system.” So the
buyer had the absolute right under the contract for 30 days prior to closing
to inspect for herself, to hire third party inspectors, to inspect to her - - to
her satisfaciton, and she didn’t do it, the last sentence of paragraph eight, or
to the extent she didn’t get inspected, it’s her own fault and not that of the
buyers’ [sic].
And in the last sentence of paragraph eight: “In the event buyer fails
to timely make such inspections and respond within said time frame as
described herein, the buyer shall have forfeited any rights provided under
this paragraph eight, and in such case shall accept the property in its current
condition, wear and tear, accept it [sic]. That’s one provision, but that’s not
the only provision.
When you - - when you get to the buyers’ final inspection form,
which was executed on the date of the closing, 6/14/2013: “We the buyers,
and/or our inspectors and/or our representatives.” And she checked the
box: “Have made the final inspection of the property and confirm it to be
the same - - in the same or better condition as it was on the binding
agreement date, normal wear and tear accepted [sic] and all repairs and
replacements, if any, have been made to our satisfaction, and we agree to
accept the property in its present condition.”
Now, the plaintiff here argues that, look, we only - - we only were
allowed to do our final inspection 30 minutes before the closing. Taking
that as absolutely true, it doesn’t change the result here because they had
the absolute right under the contract to inspect themselves or to hire third
party inspectors for a full period of 30 days. The fact that the plaintiff was
from Michigan and was trying to sell her own home in Michigan doesn’t
get her off the hook for having responsibility to - - to - - and the right and
the responsibility to go ahead and inspect anytime within that 30 day
period. Was it perhaps inconvenient? I’m sure it was. I’m sure it would
have been, but, again, that is a matter that falls upon the plaintiffs’
shoulders, not the defendants/sellers.
16
With respect to the - - the claims of - - of fraud here, the Court is
constrained to hold that - - that the sellers - - and by the way, the real estate
agent are entitled to summary judgment on the claims of fraud simply
because there - - there is no - - there was no - - that there’s no genuine issue
of material fact with respect to reasonable reliance on the part of the
plaintiff. And the point there is that - - and the Court has referred to some -
- some case law and there’s a plethora of it that holds that generally
speaking in an arm’s length transaction, one party cannot hold the other
liable for - - for fraud if the information upon which the fraud claim is
based was equally as available to one as it was to the other, even if it is an
actual fraudulent statement or a negligent fraudulent statement or a
nondisclosure, a simple nondisclosure, which may also amount to fraud in
certain circumstances, but the point is either, under either of those theories.
For a plaintiff to hold a defendant liable for fraud, he’s got to be able
to show that I reasonably relied upon either the outright fraudulent
statement, the negligent fraudulent statement or the - - or the nondisclosure.
And in - - in Tennessee law where there is the opportunity to have
discovered the fraud, whatever species of fraud it was, where there was the
opportunity to discover it, then - - and you didn’t discover it, then you
cannot hold the other side liable for - - for fraud. In other words, you’ve
got to exercise due diligence yourself, and if you do not exercise due
diligence to discover that which is there to be discovered, then you cannot
have reasonably relied upon fraud even if it in fact existed before you failed
to exercise due diligence.
Here - - here there is no issue of fact there. There were two
inspections. One immediately before the closing but - - but one previous
that - - that was without question some four hours long and without
question by the - - the plaintiff’s own husband, who himself is a general
contractor out of - - out of Michigan, and the big - - the big thing here about
the - - about the roof and about the shingles on the roof is should they have
been replaced, or was there some fraud, some nondisclosure, some covering
up, assuming that there was some fraud disclosure, some covering up, and
for purpose of this motion I assume that there was.
Nevertheless, was there reasonable reliance? Another reason the
Court concludes that there was not. Reasonable reliance is it’s undisputed
that the plaintiff’s own husband told her, look, that whole roof needs to be -
- needs to be replaced - - that whole roof needs to be replaced. Well, how
17
can you reasonably rely on anything - - assuming you could otherwise
reasonbly rely - - how can you reasonably rely on anything thereafter when
your own husband, a contractor, said, look, that whole roof needs to be
replaced, in the Court’s opinion you can’t.
You come back to - - we come back to - - there is also a - - a - - a
theory here of - - of conspiracy and the - - there is - - the record here just
contains no evidence that there was any conspiracy extent [sic] in this case
at all, then so the Court holds that the - - the defendants had demonstrated
that the plaintiffs’ proof is insufficient to - - to sustain a claim on the - - on
the conspiracy theory.
***
Finally - - well, not finally, next to finally I should say, the duress
claim, there is just, once again, is no evidence in the record of duress by the
- - duress by the - - the defendants here or any of them. There was pressure
- - there was pressure, but not from the defendants really upon the
plaintiffs. So, once again, the Court holds that - - that the defendants have
demonstrated that - - that the plaintiff simply has insufficient evidence to
sustain a duress claim.
Last thing, the TCPA, with respect to the - - the sellers,
homeowners, the Cooks, the evidence here is clear that this was an isolated
sale of a - - of a home by the homeowners themselves, and we know since
Gansevoort versus Russell, was it, Gansevoort versus sombody, 20 odd
years ago, that - - that the TCPA does not apply to an isolated sale of a
piece of real property by the owner of the property himself. That is to say
somebody that is not in the business of selling real property, and so the
plaintiffs - - rather, the defendants could. The sellers are entitled to
summary judgment with respect to the TCPA claim.
Now, the - - the TCPA claim against Ms. Brewster - - Ms. Brewster,
while generally she is subject to the TCPA, they are just - - the – the
evidence is undisputed here that there is just no - - there just was no
deceptive trade or practice that - - that Ms. Brewster engaged.
After the Trial Court granted them summary judgment, the Cooks and Brewster
moved for attorney’s fees pursuant to Tenn. Code Ann. § 47-18-109(e)(2) of the
Tennessee Consumer Protection Act of 1977. The Trial Court denied the motions finding
and holding that it was a close question as to the Cooks because Plaintiff may not have
18
known when she filed suit if the Cooks were subject to the Tennessee Consumer
Protection Act of 1977, and, therefore, the Trial Court would not find the claim against
the Cooks to be frivolous. The Trial Court further found and held that while Brewster
was subject to the Tennessee Consumer Protection Act of 1977 as a real estate agent, the
fact that Brewster prevailed on her motion for summary judgment did not necessarily
make Plaintiff’s claims frivolous.
Plaintiff and Farmers Insurance voluntarily dismissed their claims against each
other. Plaintiff appeals to this Court.
Discussion
Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)
whether the Trial Court erred in granting the Cooks and Brewster summary judgment;
and, 2) whether the Trial Court erred in refusing to allow Plaintiff to conduct additional
discovery before ruling on the motions for summary judgment. The Cooks raise an issue
with regard to whether the Trial Court erred in denying their motion for attorney’s fees
pursuant to Tenn. Code Ann. § 47-18-109(e)(2)2.
We first consider whether the Trial Court erred in granting the Cooks and
Brewster summary judgment. As our Supreme Court has instructed:
Summary judgment is appropriate 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. We review a trial court’s ruling on a motion for
summary judgment de novo, without a presumption of correctness. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
so, we make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).
2
Brewster failed to raise this as an issue on appeal. Although Brewster mentions her demand for
attorney’s fees in the conclusion section of her brief, she failed to include this issue in her statement of the
issues raised on appeal. “Courts have consistently held that issues must be included in the Statement of
Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not
included is not properly before the Court of Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct.
App. 2001).
19
***
[I]n Tennessee, as in the federal system, when the moving party does not
bear the burden of proof at trial, the moving party 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 insufficient to establish
the nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with “a separate concise statement of
material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
separate, numbered paragraph and supported by a specific citation to the
record.” Id. When such a motion is made, any party opposing summary
judgment must file a response to each fact set forth by the movant in the
manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
“must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
Ct. 1348. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party. If a summary judgment motion is filed before
adequate time for discovery has been provided, the nonmoving party may
seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
20
Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).
Plaintiff’s complaint alleged claims for breach of contract, intentional
misrepresentation, conspiracy, and violation of the Tennessee Consumer Protection Act
of 1977. We will consider each of these claims in turn.
Considering Plaintiff’s claim for breach of contract first, we note that with regard
to Brewster, Plaintiff admitted that she had no contract whatsoever with Brewster. As
Plaintiff had no contract with Brewster, it follows that Plaintiff cannot prove a breach of
contract claim against Brewster. Brewster made a properly supported motion for
summary judgment demonstrating that Plaintiff’s evidence was insufficient to establish
her claim for breach of contract, and Brewster was entitled to summary judgment on this
claim as granted by the Trial Court.
With regard to the Cooks, Plaintiff alleged that the Cooks were in breach of
contract for failing to fulfill the three contingencies contained in the Contract, i.e.,
“Fix/paint white trim . . . ,” “Re-flash/repair bow window in the office (water stains
on ceiling) – as there is water intrusion,” and “Repair/replace the roof shingles
where needed.” Plaintiff, however, signed the Final Inspection Form, which stated that
she, or her representatives had:
made the final inspection of the Property and confirm it to be in the same or
better condition as it was on the Binding Agreement Date, normal wear and
tear excepted, and all repairs and replacements, if any, have been made to
our satisfaction, and we agree to accept the Property in its present
condition.
Plaintiff testified that she executed the Final Inspection Form voluntarily and of
her own free will. The Final Inspection Form provided that upon execution it became a
part of the Contract “as if quoted therein verbatim.” The Final Inspection Form clearly
and unambiguously provides that the House was “in the same or better condition” than it
was on the date that the Contract was executed, that any repairs or replacements had been
made to Plaintiff’s satisfaction, and that Plaintiff agreed to accept the House “in its
present condition.”
As this Court explained in Quebecor Printing Corp. v. L & B Mfg. Co.:
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.
21
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 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).
This Court’s initial task in construing the [contract] at issue, as was
the Trial Court’s, is to determine whether the language of the contract is
ambiguous. Planters Gin Co., 78 S.W.3d at 890. If the language is clear
and unambiguous, the literal meaning of the language controls the outcome
of the dispute. Id. A contract is ambiguous only when its meaning is
uncertain and may fairly be understood in more than one way. Id.
(emphasis added). If the contract is found to be ambiguous, we then apply
established rules of construction to determine the intent of the parties. Id.
Only if ambiguity remains after applying the pertinent rules of construction
does the legal meaning of the contract become a question of fact. Id.
***
It is not the role of this Court “to make a different contract than that
executed by the parties.” Posner v. Posner, No. 02A01–9710–CV–00249,
1997 WL 796216, at *2–3, 1997 Tenn. App. LEXIS 930, at *6 (Tenn. Ct.
App. Dec. 30, 1997), no appl. perm. appeal filed. See also, e.g., Central
Drug Store v. Adams, 184 Tenn. 541, 201 S.W.2d 682 (1947). “In the
absence of fraud or mistake, a contract must be interpreted and enforced as
written even though it contains terms which may be thought to be harsh or
unjust.” Tenpenny v. Tenpenny, No. 01–A–01–9406–CV–00296, 1995 WL
70571, at *6, 1995 Tenn. App. LEXIS 105, at *15 (Tenn. Ct. App. Feb. 22,
1995), appl. perm. appeal denied July 3, 1995.
22
Quebecor Printing Corp. v. L & B Mfg. Co., 209 S.W.3d 565, 578-81 (Tenn. Ct. App.
2006).
Plaintiff cannot now claim that the repairs to be done pursuant to the Contract
were not done because Plaintiff agreed via the Final Inspection Form that any repairs or
replacements had been made to her satisfaction. Plaintiff attempts to utilize parol
evidence to vary the terms of the Contract. As the Contract is clear and unambiguous,
Plaintiff cannot use parole evidence to vary the clear and unambiguous written terms of
the Contract. Given all this, the Cooks made a properly supported motion for summary
judgment demonstrating that Plaintiff’s evidence was insufficient to establish her claim
for breach of contract, and the Cooks were entitled to summary judgment on this claim as
granted by the Trial Court.
With regard to Plaintiff’s claim for intentional misrepresentation, Plaintiff alleged
that the Cooks failed to repair the House as agreed in the Contract, that the Cooks and
Brewster covered over and hid defects and damages, and that the Cooks and Brewster
misrepresented facts about the septic permit and the septic system. In her brief on appeal,
Plaintiff alleged that the Cooks and Brewster represented to her that the repairs pursuant
to the Contract had been done and that Plaintiff relied upon these representations and
proceeded to close on the House and take possession.
Our Supreme Court has instructed as to the elements which must be proven in
order to prevail on a claim for intentional misrepresentation stating:
Our current common-law claim for intentional misrepresentation is
the successor to the common-law action for deceit. First Nat’l Bank of
Louisville v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991). In fact,
“intentional misrepresentation,” “fraudulent misrepresentation,” and
“fraud” are different names for the same cause of action. Concrete Spaces,
Inc. v. Sender, 2 S.W.3d 901, 904 n.1 (Tenn. 1999). In this opinion, we
will refer to the cause of action as a claim for intentional misrepresentation,
and, in order to avoid confusion, we suggest that this term should be used
exclusively henceforth. See Rogers v. Louisville Land Co., 367 S.W.3d
196, 205 (Tenn. 2012) (noting that “intentional infliction of emotional
distress” and “outrageous conduct” were different names for the same tort
and stating that the tort should be referred to as “intentional infliction of
emotional distress”).
To recover for intentional misrepresentation, a plaintiff must prove:
(1) that the defendant made a representation of a present or past fact; (2)
that the representation was false when it was made; (3) that the
23
representation involved a material fact; (4) that the defendant either knew
that the representation was false or did not believe it to be true or that the
defendant made the representation recklessly without knowing whether it
was true or false; (5) that the plaintiff did not know that the representation
was false when made and was justified in relying on the truth of the
representation; and (6) that the plaintiff sustained damages as a result of the
representation. Walker v. Sunrise Pontiac–GMC Truck, Inc., 249 S.W.3d at
311 (quoting Metropolitan Gov’t of Nashville & Davidson Cnty. v.
McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App. 1992)); see also 8
Tennessee Practice: Tennessee Pattern Jury Instructions—Civil § 8.36, at
357 (11th ed. 2011).
Hodge v. Craig, 382 S.W.3d 325, 342-43 (Tenn. 2012) (footnotes omitted). Thus, in
order to prevail on her claim, Plaintiff must prove that she reasonably relied upon a
representation made by the Cooks and Brewster.
As discussed more fully above, Plaintiff executed the Final Inspection Form in
connection with the closing, which stated that Plaintiff had made a final inspection and
found the House to be in the same or better condition than it had been when the Contract
first was executed, that all repairs or replacements had been made to Plaintiff’s
satisfaction, and that Plaintiff accepted the House in its present condition. As the
Contract that Plaintiff voluntarily and of her own free will executed stated that the repairs
had been made to Plaintiff’s satisfaction and that Plaintiff was accepting the House in its
present condition, Plaintiff cannot have reasonably relied upon any representations made
by the Cooks or Brewster with regard to repairs.
Furthermore, we note that even though Plaintiff signed the Final Inspection Form
stating that she did do a final inspection, she complains that she was not allowed a full
and final inspection of the House. Both Plaintiff and her husband testified, however, that
they could tell from the final inspection that they did do on the day of closing that the
repairs Plaintiff and her husband had expected would be done had not been done.
Plaintiff testified that areas which were to have been repaired pursuant to the Contract
could be seen from the exterior of the House and that they could see that the expected
repairs had not been done. Plaintiff’s husband testified that he told Plaintiff that
“Nothing was really done. They just painted over the water spots, they didn’t do
anything with the flashing except caulked them, and just replaced a couple of shingles.”
Thus, Plaintiff and her husband saw for themselves prior to closing that repairs had not
been done. As such, Plaintiff cannot have resonably relied upon any representations
made by the Cooks and Brewster that repairs had been done because Plaintiff knew
otherwise. The Cooks and Brewster made properly supported motions for summary
judgment negating an essential element of Plaintiff’s claim for intentional
24
misrepresentation. The Cooks and Brewster were entitled to summary judgment on this
claim as granted by the Trial Court.
Turning now to Plaintiff’s claim for conspiracy, we note that this Court explained
in Kincaid v. SouthTrust Bank:
The elements of a cause of action for civil conspiracy are: (1) a
common design between two or more persons, (2) to accomplish by
concerted action an unlawful purpose, or a lawful purpose by unlawful
means, (3) an overt act in furtherance of the conspiracy, and (4) resulting
injury. Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 720 (E.D.
Tenn. 2001). Conspiracy claims must be pled with some degree of
specificity. McGee v. Best, 106 S.W.3d 48, 64 (Tenn. Ct. App. 2002)
(citing Haynes v. Harris, No. 01A01-9810-CV-00518, 1999 WL 317946, at
*2 (Tenn. Ct. App. 1999)) (citations omitted). Conclusory allegations,
however, unsupported by material facts will not be sufficient to state such a
claim. Id.
Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38 (Tenn. Ct. App. 2006).
Plaintiff testified that she had no evidence whatsoever to support her claim for
conspiracy other than her vague ‘feelings’ due to the fact that the Cooks and Brewster
allegedly were friends. This feeling alone is simply and completely insufficient to sustain
a claim for conspiracy. The Cooks and Brewster made properly supported motions for
summary judgment demonstrating that Plaintiff’s evidence was insufficient to establish
her claim for conspiracy, and the Cooks and Brewster were entitled to summary judgment
on this claim as granted by the Trial Court.
We next consider Plaintiff’s claim of violation of the Tennessee Consumer
Protection Act of 1977 (“TCPA”).
With regard to the TCPA, our Supreme Court has explained:
In the context of a sale of real property, real estate agents and
brokers selling houses “in the course of the real estate trade” are covered by
the Tennessee Consumer Protection Act. Ganzevoort v. Russell, 949
S.W.2d [293] at 297 [(Tenn. 1997)]. However, we have also held that the
Act does not apply to “sellers [who are] not in the business of selling
property as owners or brokers” and, therefore, that “persons making an
isolated sale of their home are not covered.” Ganzevoort v. Russell, 949
S.W.2d at 298.
25
Fayne v. Vincent, 301 S.W.3d 162, 173 (Tenn. 2009). Given this, the TCPA does not
apply to the Cooks who were involved in the isolated sale of their residence. The Cooks
made a properly supported motion for summary judgment demonstrating that Plaintiff’s
evidence was insufficient to establish her claim for violation of the TCPA, and the Cooks
were entitled to summary judgment on this claim as granted by the Trial Court.
Brewster, however, as a professional real estate agent was subject to the TCPA.
As pertinent, Tenn. Code Ann. § 47-18-109 of the TCPA provides:
Any person who suffers an ascertainable loss of money or property, real,
personal, or mixed, or any other article, commodity, or thing of value
wherever situated, as a result of the use or employment by another person
of an unfair or deceptive act or practice described in § 47-18-104(b) and
declared to be unlawful by this part, may bring an action individually to
recover actual damages.
Tenn. Code Ann. §47-18-109(a)(1) 2013.
The Trial Court found that Plaintiff had not alleged any unfair or deceptive act by
Brewster. Plaintiff herself testified that she never had any conversation whatsoever with
Brewster. Brewster made a properly supported motion for summary judgment
demonstrating that Plaintiff’s evidence was insufficient to establish her claim for
violation of the TCPA, and Brewster was entitled to summary judgment on this claim as
granted by the Trial Court.
We next consider whether the Trial Court erred in refusing to allow Plaintiff to
conduct additional discovery before ruling on the motions for summary judgment.
Initially, Plaintiff did not file a response to the motions for summary judgment, but
instead filed a motion to continue the hearing on the motions for summary judgment.
Plaintiff sought the continuance to allow her to take the deposition of a representative of
Farmers Insurance. Allegedly, Farmers Insurance was the insurance carrier for the Cooks
when the Cooks owned the House, and the Cooks had made a claim for hail damage to
the roof of the House a few years prior to Plaintiff and the Cooks entering into the
Contract. The Trial Court denied Plaintiff the opportunity to conduct additional
discovery, but did grant Plaintiff an additional thirty days to respond to the motions for
summary judgment.
“Where, as here, a party seeks to continue a motion for summary judgment
pursuant to Tennessee Rule of Civil Procedure 56.07, we review the trial court’s refusal
26
to grant a continuance for an abuse of discretion.” Regions Fin. Corp. v. Marsh USA,
Inc., 310 S.W3d 382, 401 (Tenn. Ct. App. 2009). This Court has explained:
Indeed, our Supreme Court has stated:
Where there is [the] slightest possibility that [the]
party opposing [a] motion for summary judgment has been
denied [an] opportunity to file affidavits, take discovery
depositions or amend, by disposition of motion for summary
judgment without 30 day interval following filing of motion,
it will be necessary to remand case to cure such error.
Craven v. Lawson, 534 S.W.2d 653 (Tenn. 1976). Further, this Court has
stated that one method of defeating a properly supported motion for
summary judgment is through a request for more discovery:
[Nonmoving] parties may deflect a summary judgment
motion challenging their ability to prove an essential element
of their case by (1) pointing to evidence either overlooked or
ignored by the moving party that creates a factual dispute, (2)
rehabilitating evidence challenged by the moving party, (3)
producing additional evidence that creates a material factual
dispute, or (4) submitting an affidavit in accordance with
Tenn. R. Civ. P. 56.07 requesting additional time for
discovery. Rains v. Bend of the River, 124 S.W.3d 580, 587–
88 (Tenn. Ct. App. 2003) (citing Staples v. CBL & Assoc.,
Inc., 15 S.W.3d 83, 88–89 (Tenn. 2000); McCarley v. West
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)).
Regions Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 401 (Tenn.
Ct. App. 2009) (emphasis added). The interest in full discovery, however,
must be balanced against the purpose of summary judgment: “[to] provide[]
a quick, inexpensive way to conclude cases when there exists no dispute
regarding the material facts.” Hannan v. Alltel Publishing Co., 270 S.W.3d
1, 13 (Tenn. 2008). Indeed, “[t]he philosophy of summary judgment is to
avoid a needless trial in a case where, although the pleadings may indicate
disputes over factual issues, facts outside the pleadings if known would
clearly show that there is ‘no genuine issue as to any material fact.’ ” Id. at
12 (quoting Donald F. Paine, Recent Developments in Tennessee
Procedure: The New Tennessee Rules of Civil Procedure, 37 Tenn. L. Rev.
501, 516 (1970)).
27
***
[T]his Court has previously held that a trial court’s decision to deny
additional time for discovery, in order for the non-moving party to meet
summary judgment, “must be viewed in the context of the issues being tried
and the posture of the case at the time the request for discovery is made.”
Regions, 310 S.W.3d at 401 (citing Price v. Mercury Supply Co., 682
S.W.2d 924, 935 (Tenn. Ct. App. 1984)). Accordingly, a trial court only
errs in refusing to grant additional time for discovery prior to the hearing on
a motion for summary judgment when the non-moving party can show that
“the requested discovery would have assisted [the non-moving party] in
responding to [the moving party’s] motion for summary judgment.”
Regions, 310 S.W.3d at 401 (citing Simmons v. State Farm Gen. Ins. Co.,
No. W2003–02643–COA–R3–CV, 2004 WL 2715341, at *5 (Tenn. Ct.
App. Nov. 24, 2004)).
Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 536-38 (Tenn. Ct. App.
2012).
In the case now before us, the requested discovery, i.e., the deposition of a
representative of Farmers Insurance, would not have assisted Plaintiff in responding to
the motions for summary judgment. Any information that could have been gleaned with
regard to a claim made by the Cooks to Farmers Insurance with regard to the roof of the
House prior to Plaintiff and the Cooks entering into the Contract would have had no
relevance whatsoever to whether Plaintiff could prove her claims against the Cooks and
Brewster, as discussed fully above. Although Plaintiff knew that there were problems
with the roof prior to closing, as discussed more fully above, Plaintiff signed the Final
Inspection Form accepting the House in its present condition and did so with the full
knowledge that the repairs had not been done. As such, anything that Farmers Insurance
knew about the roof of the House and its condition some years prior to Plaintiff and the
Cooks entering into the Contract was immaterial to the issues at hand. Since the
requested additional discovery would not have assisted Plaintiff in responding to the
motions for summary judgment, we find no error in the Trial Court’s denial of Plaintiff’s
motion.
Finally, we consider the issue raised by the Cooks regarding whether the Trial
Court erred in denying their motion for attorney’s fees pursuant to Tenn. Code Ann. § 47-
18-109(e)(2), which provides:
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In any private action commeced under this section, upon finding that the
action is frivolous, without legal or factual merit, or brought for the purpose
of harassment, the court may require the person instituting the action to
indemnify the defendant for any damages incurred, including reasonable
attorney’s fees and costs.
Tenn. Code Ann. § 47-18-109(e)(2) (2013). We review a trial court’s decision with
regard to whether to award attorney’s fees pursuant to Tenn. Code Ann. § 47-18-
109(e)(2) for abuse of discretion. Wagner v. Fleming, 139 S.W.3d 295, 304 (Tenn. Ct.
App. 2004).
In the instant case, the Trial Court found that it was a close question as to whether
Plaintiff’s TCPA claim against the Cooks was frivolous. The Trial Court found this to be
so because even though the Cooks were not subject to the TCPA, Plaintiff may not have
known this when she filed her suit and may have needed to conduct discovery in order to
determine if the Cooks were merely homeowners involved in an isolated sale of their
residence, or not. We agree that this was a close question because the case had reached
only the summary judgment stage when the Trial Court made its ruling with regard to
Plaintiff’s TCPA claims. If the case had progressed to trial, and Plaintiff had continued
to pursue her TCPA claim against the Cooks after learning that they were homeowners
involved in an isolated sale of their residence and, therefore, not subject to the TCPA, the
determination of whether Plaintiff’s claim could be considered frivolous may well have
had a different outcome. Such, however, is not the situation in the case now before us.
Given the posture of the case now before us, we cannot find that the Trial Court abused
its discretion when it refused to hold Plaintiff’s TCPA claim against the Cooks to be
frivolous and, therefore, refused to award the Cooks attorney’s fees pursuant to Tenn.
Code Ann. § 47-18-109(e)(2).
Given all of the above, we affirm the Trial Court’s March 25, 2015 order.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Kimberly E. Lapinsky, and her surety.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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