Martina Smith v. Donna Jean Walker

03/22/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 9, 2021 Session
MARTINA SMITH ET AL. v. DONNA JEAN WALKER ET AL.
Appeal from the Circuit Court for Madison County
No. C-19-181 Kyle C. Atkins, Judge
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No. W2021-00241-COA-R3-CV
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Appellants purchased a home from Appellee that was contaminated with mold. Appellants
therefore filed suit against Appellee. The trial court granted summary judgment in
Appellee’s favor. Because the trial court’s order does not comply with Rule 56.04 of the
Tennessee Rules of Civil Procedure or Smith v. UHS of Lakeside, Inc., we vacate and
remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.
Samuel W. Hinson, Lexington, Tennessee, for the appellants, Eddie Smith, and Martina
Smith.
Marc A. Sorin, Memphis, Tennessee, for the appellee, Donna Jean Walker, M.D.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
I. FACTUAL AND PROCEDURAL HISTORY
In March 2019, Plaintiffs/Appellants Martina and Eddie Smith entered into a
Purchase and Sale Agreement with Defendant/Appellee Donna Jean Walker, M.D.
(“Appellee”) for the purchase of Appellee’s house. Mr. and Mrs. Smith discovered mold
contamination in the home not long after moving in, which they allege, inter alia, caused
Mrs. Smith and their grandson, Parker Smith,2 to become severely ill, contaminated most
of their personal property to the extent that it had to be destroyed, and rendered the home
effectively beyond repair. Mr. and Mrs. Smith, for themselves and as next of kin of their
grandson (collectively, “Appellants”), filed a complaint against Appellee and Amerispec
Inspection Services (“Amerispec”)3 in the Circuit Court of Madison County (“the trial
court”) on July 25, 2019. Therein, Appellants alleged causes of action against Appellee for
breach of contract, negligence and gross negligence, negligent misrepresentation,
intentional misrepresentation, and failure to disclose. Appellants also sought compensatory
and punitive damages. Essentially, Appellants claimed that they thought they were
purchasing a habitable home free from major defects, when Appellee knew or should have
known of the mold contamination but did not inform them of it.
Appellee filed an answer, asserting a litany of affirmative defenses and requesting
that the claims against her be dismissed. Amerispec filed a motion for judgment on the
pleadings on October 15, 2019, which Appellee joined on March 26, 2020. In joining the
motion, Appellee specifically sought dismissal of Appellants’ claims of negligence and
gross negligence. On November 2, 2020, Appellee filed a motion for summary judgment
as to Appellants’ claims of breach of contract, negligent misrepresentation, and intentional
misrepresentation. In an order filed February 12, 2021, the trial court granted summary
judgment in favor of Appellee, finding as follows:
Per the express terms of the real estate sales contract entered into
between [Appellants] and [Appellee], ‘[Appellants] agreed to take the home
and property in “as is” condition based on reducing the purchase price to
$339,901.00.’ Therefore, [Appellants] agreed to take the property ‘as is’ and
the ‘as is’ provision of the contract absolves [Appellee] from any alleged
misrepresentations concerning the condition of her home at the time of this
real estate transaction.
Furthermore, this Court finds that there is no proof in the record that
2
Parker Smith had apparently moved into the home with Mr. and Mrs. Smith.
3
The trial court ultimately filed an order granting summary judgment in Amerispec’s favor on
February 12, 2021. On June 29, 2021, Amerispec filed a “Consent Motion to Drop Defendant Amerispec
Inspection Services” from this appeal by consent of all parties. The consent motion was signed by
Amerispec’s counsel, as well as Appellants’ and Appellee’s respective counsel by permission. No order
was entered by this Court pursuant to this motion, but neither party argues that Amerispec has any
involvement in this appeal. Therefore, we will not disturb the trial court’s judgment as it applies to
Amerispec, nor will we discuss Amerispec’s involvement in the case in detail.
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[Appellee] made any intentional misrepresentation(s) to [Appellants] in
connection with this real estate transaction.
It is therefore, ORDERED ADJUDGED AND DECREED, that all
claims asserted by [Appellants] against [Appellee] are dismissed with
prejudice and all court costs associated with this action shall be assessed
against [Appellants].
Appellants appealed.
II. ISSUES PRESENTED
Appellants raise the following issue, taken from their brief:
I. Whether the [trial court] erred when it ruled that an “as is” clause in the
parties’ Purchase and Sale Agreement barred Appellants’ claims of
misrepresentation when Appellants presented proof that Appellee
negligently and/or intentionally misrepresented the true condition of the
home?
In addition to arguing that the trial court correctly granted summary judgment in her
favor, Appellee designates as additional issues Appellants’ purported failure to comply
with the briefing requirements of this Court, as well as a request for an award of attorney’s
fees for defending against a frivolous appeal under Tennessee Code Annotated section 27-
1-122.
IV. STANDARD OF REVIEW
“The purpose of a summary judgment proceeding is not the finding of facts, the
resolution of disputed, material facts, or the determination of conflicting inferences
reasonably to be drawn from those facts. The purpose is to resolve controlling issues of
law, and that alone.” Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn. 1993) (citations and
quotation marks omitted), holding modified on other grounds by Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015). “When a material fact is in
dispute creating a genuine issue, when the credibility of witnesses is an integral part of the
factual proof, or when evidence must be weighed, a trial is necessary because such issues
are not appropriately resolved on the basis of affidavits.” Id.“[A] trial court’s decision to grant [a] motion[] for summary judgment is not entitled
to a presumption of correctness on appeal.” Standard Fire Ins. Co. v. Chester O’Donley
& Assocs., Inc., 972 S.W.2d 1, 6 (Tenn. Ct. App. 1998) (citations omitted). Consequently,
we “must make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Bowers v. Estate of Mounger,
542 S.W.3d 470, 477 (Tenn. Ct. App. 2017) (quoting Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015)). In evaluating motions for
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summary judgment, “[t]he evidence offered by the nonmoving party must be taken as true,”
Byrd, 847 S.W.2d at 215, and courts “are required to review the evidence in the light most
favorable to the nonmoving party and to draw all reasonable inferences favoring the
nonmoving party.” Shaw v. Metro. Gov’t of Nashville & Davidson Cty., 596 S.W.3d 726,
733 (Tenn. Ct. App. 2019) (citations and quotations omitted).
V. DISCUSSION
Unfortunately, our ability to review the merits of this appeal are hampered by the
state of the trial court’s order. Rule 56.04 of the Tennessee Rules of Civil Procedure
mandates that when granting or denying a motion for summary judgment, a “trial court
shall state the legal grounds upon which the court denies or grants the motion, which shall
be included in the order reflecting the court’s ruling.” Our supreme court has described this
duty imposed by Rule 56.04 as a “high judicial function.” Smith v. UHS of Lakeside, Inc.,
439 S.W.3d 303, 318 (Tenn. 2014). The supreme court further noted in UHS of Lakeside
that when a trial court does not adequately explain its summary judgment ruling,
“intermediate appellate courts need not adhere to our prior practice of ‘conduct[ing]
archeological digs’ of the record and remanding ‘the case only when [our] practiced eyes
cannot discern the grounds for the trial court’s decision.’” Regions Com. Equip. Fin. LLC
v. Richards Aviation Inc., No. W2020-00408-COA-R3-CV, 2021 WL 1811754, at *5
(Tenn. Ct. App. May 6, 2021) (quoting UHS of Lakeside, 439 S.W.3d at 314 (footnotes
omitted)). Rather, when resolving “issues relating to a trial court’s compliance or lack of
compliance with Tenn. R. Civ. P. 56.04,” the supreme court encouraged this Court to
consider not only judicial economy but also “the fundamental importance of assuring that
a trial court’s decision either to grant or deny a summary judgment is adequately explained
and is the product of the trial court’s independent judgment.” UHS of Lakeside, 439
S.W.3d at 314.
Here, the trial court’s order is deficient in multiple respects. First, while Appellants
raised at least five causes of action in their complaint, the trial court only expressly
mentioned one cause of action in its order: intentional misrepresentation. The trial court
entered a blanket dismissal of “all claims asserted by [Appellants] against [Appellee],” thus
ensuring its order technically met the finality requirement of disposing of all claims. See
Tenn. R. App. P. 3 (explaining that an order that adjudicates fewer than all claims involved
is not final). However, the trial court did not specifically dispose of the other causes of
action that Appellants brought. We note that in their appellate brief, Appellants do not
discuss their breach of contract or negligence and gross negligence causes of action.
Accordingly, it appears they have abandoned those claims. We will therefore not disturb
those rulings on appeal despite the trial court’s failure to provide legal grounds for their
dismissal. Appellants have, however, clearly preserved their claims regarding both
intentional and negligent misrepresentation on appeal.4 The claim of negligent
4
To the extent that claims of failure to disclose and concealment are part and parcel of Appellants’
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misrepresentation is not specifically considered by the trial court’s order in any fashion.
Even to the extent that the trial court did provide some legal reasoning that could be
interpreted as applying to both intentional and negligent misrepresentation, we must
conclude that the trial court’s order is deficient. Specifically, the portion of the trial court’s
order explaining its decision to grant summary judgment is comprised of a mere two
sentences. In the first sentence, the court concluded, without explanation, that the “as is”
clause in the parties’ contract “absolve[d] [Appellee] from any alleged misrepresentations.”
In the second sentence, the trial court made a conclusory finding “that there is no proof in
the record” of intentional misrepresentations by Appellee. Again, the trial court did not
explain its finding, including why the parties’ disputes over certain facts were not genuine
or the facts not material such that summary judgment was warranted. Neither did the trial
court address any of Appellants’ arguments that the “as is” clause did not relieve Appellee
of liability. As such, we are left to wonder as to what facts and law the trial court relied
upon in ruling. Such scant reasoning and explanation is simply insufficient for this Court
to decipher how the trial court reached its decision, and is an abdication of the trial court’s
“high judicial function.” See UHS of Lakeside, 439 S.W.3d at 318. We decline to “conduct
[an] archeological di[g]” of the extensive record in this case in an attempt to understand
the trial court’s reasoning before proceeding to conduct appellate review. See UHS of
Lakeside, 439 S.W.3d at 314. Instead, we vacate the trial court’s order granting summary
judgment in favor of Appellee. Upon remand, the trial court should comply with Rule 56.04
and UHS of Lakeside, entering a proper order granting or denying summary judgment and
explaining the reasoning for the decision.
Finally, we briefly address Appellee’s request for frivolous appeal damages.
Tennessee Code Annotated section 27-1-122 states as follows:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
A frivolous appeal is one that is devoid of merit or has no reasonable chance of
success. Robinson v. Currey, 153 S.W.3d 32, 42 (Tenn. Ct. App. 2004). Given our
disposition, this appeal is not frivolous, and Appellee’s request for frivolous appeal
damages is denied. All other issues raised by the parties are pretermitted.5
misrepresentation claims, they survive as well.
5
Appellee raises significant concerns about the state of Appellants’ brief, including failure to
properly cite to the record. Appellants attempted to remedy this issue in their reply brief, but, generally,
reply briefs are not vehicles for remedying deficiencies in initial briefs. See Augustin v. Bradley Cty.
Sheriff’s Off., 598 S.W.3d 220, 227 (Tenn. Ct. App. 2019). Given, however, that the trial court’s order
necessitates that we vacate and remand the case, any issues with Appellants’ briefing are not dispositive.
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V. CONCLUSION
The judgment of the Circuit Court of Madison County is vacated, and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of
this appeal are assessed to Appellee Donna Jean Walker, M.D., for which execution may
issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
However, we strongly encourage parties to comply with relevant procedural rules, and may not be so
forgiving in the future.
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