Articles Posted in Miscellaneous

Where the seller of real property was found not liable for negligent misrepresentation, the trial court’s finding of liability for negligence was reversed, as “a seller’s liability for the failure to disclose such material facts in a real estate transaction is coextensive with a party’s liability for fraudulent or negligent misrepresentation.” (internal citation omitted).

In Baker v. Baskin, No. M2023-00433-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2024), the plaintiffs purchased a home from the defendants, who were husband and wife. The defendants had lived in the home for thirty-two years. Seven months before the sale, defendant husband noticed a dip in the ground while mowing. He investigated and found a small hole near a bush. The husband believed this hole was likely caused by the decayed roots of a tree he had previously removed. The husband filled the hole with two four-by-four posts, placed topsoil and a topsoil bag on top of it, then covered the area with soil and grass. In the months between finding the hole and closing the sale, the husband did not notice any additional problems despite riding his heavy lawn mower over the area many times. It was undisputed that the husband did not tell his wife about the hole.

The defendants did not disclose this hole in the documents related to the real estate sale. They also marked no on questions related to sinkholes or other soil problems. The contract the parties negotiated included an “as is” provision, and the plaintiff buyers signed a disclosure recommending a geotechnical engineer.

Tennessee does not recognize a common law cause of action for wrongful foreclosure.

In Case v. Wilmington Trust, N.A., No. E2021-00378-SC-R11-CV, — S.W.3d — (Tenn. Nov. 14, 2024), the Tennessee Supreme Court held that there is no tort for wrongful foreclosure in Tennessee. In the underlying case, plaintiff alleged that defendant failed to give required written notice when the foreclosure sale for plaintiff’s home was postponed. Plaintiff filed a complaint asserting several causes of action, but only appealed the trial court’s grant of summary judgment on the tort claim of wrongful foreclosure.

The Court of Appeals agreed with plaintiff that notice was required, and it reversed summary judgment on the wrongful foreclosure claim. The Supreme Court, however, ruled that no such claim exists in Tennessee.

Where plaintiff brought a tort action against defendant based on defective products made pursuant to a contract between the parties, dismissal based on the economic loss doctrine was affirmed.

In Vidafuel, Inc. v. Kerry, Inc., No. M2024-00041-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2024), the plaintiff developed and distributed wellness protein drinks. The plaintiff contracted with the defendant to manufacture these drinks, and problems began early in the relationship. Samples provided were not adequate, shipments that went out received customer complaints and had to be pulled, and the defendant failed to ever create a product that met the plaintiff’s quality requirements.

Plaintiff filed this suit asserting claims for negligent or intentional misrepresentation, deceit/fraudulent inducement, and violations of the Tennessee Consumer Protection Act (“TCPA”). The plaintiff argued that the claims were not based on the contract but were instead based on the defendant’s representations about its ability to manufacture the product. The defendant filed a motion to dismiss, arguing that the economic loss doctrine barred the plaintiff’s tort claims and that the TCPA claim was time-barred. The trial court agreed, dismissing the claims, and the Court of Appeals affirmed.

There has been lots of confusion in Tennessee over how to obtain medical records of a deceased person.

Some providers require that an estate be opened and a HIPAA-compliant authorization be signed by the personal representative of the estate before they will turn over medical records.  This is a ridiculous position – no one should have to go to the expense of opening an estate simply to gain access to medical records.

The Tennessee General Assembly came up with a fix.  A new statute, embodied in Public Chapter 739, amends TCA Section 68-11-304 by deleting  subdivision (a)(1) and substituting the following:

A finding of trespass requires a court to award nominal damages under Tennessee law.

In Dorer v. Hennessee, No. M2023-00729-COA-R3-CV (Tenn. Ct. App. Apr. 12, 2024) (memorandum opinion), the Court of Appeals overturned a trial court’s refusal to award damages after a trespass finding. While the Court deemed most of appellant’s issues waived on appeal due to insufficient briefing, it reversed the denial of trespass damages.

The trial court ruled that appellee trespassed but refused to award damages due to his “good faith.” On appeal, appellant correctly asserted that good faith is not relevant to determining whether a person trespassed. (internal citation omitted). When a litigant proves trespass, the property owner receives at least nominal damages. (internal citation omitted).

Where plaintiff was the passenger in a car accident that occurred when the vehicle she was riding in crashed into fencing and construction equipment owned by defendant construction company that was located in the right lane of a street, and plaintiff had settled with and executed a release of the driver and the driver’s insurance company, the trial court’s grant of summary judgment to defendant construction company based on the release was reversed.

In Neal v. Patton & Taylor Enterprises, LLC, No. W2022-01144-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2024), plaintiff was riding in the passenger seat of a car when the car crashed into fencing and construction materials located in the right lane of the street. Plaintiff settled with the driver of the car and the driver’s insurance company, and she executed a release. The release listed the driver and insurance company, but it also contained some broad language releasing “all other persons, firms or corporations of and from any claim, demand, right or cause of action,…on account of or in any way growing out of any and all personal injuries…resulting from [the] accident[.]”

Sometime after the release was executed, plaintiff filed suit against defendant construction company, claiming its negligence and negligence per se in the placement of and warnings about the construction equipment caused her injuries. Defendant moved for summary judgment, which the trial court granted based on the release executed by plaintiff. On appeal, this ruling was reversed.

Where a trial court’s judgment did not include a finding of joint-and-several liability, a defendant against whom a judgment was entered could not be credited with payments made by another defendant or by a non-party.

In Gerrish & McCreary, P.C. v. Lane, No. W2022-01441-COA-R3-CV (Tenn. Ct. App. Dec. 5, 2023), plaintiff originally filed suit against defendant, who was plaintiff’s bookkeeper, for fraud, misrepresentation, conversion, and negligence. Plaintiff also brought a claim against defendant’s husband for conversion. The trial court found for plaintiff, and it entered a judgment for over $600,000 against defendant. A judgment of approximately $44,000 was entered against defendant’s husband. The judgment was entered in 2003 and did not find defendant and her husband jointly and severally liable. Later, in 2005, an order of judgment satisfied was entered as to the husband, and the order specifically noted that it was “not intended, nor shall it be construed, as having any applicability to the separate judgment rendered against the other defendant in this cause[.]”

In addition to the case against defendant and her husband, plaintiff reached a confidential settlement with a bank related to the fraud. The settlement was for $140,000, but the bank was never made a party to this action.