Day on Torts
Where plaintiffs’ appellate brief failed to include appropriate citations to the record and failed to “even address the revised judgment from which they appealed,” summary judgment for defendants on claims of intentional and/or negligent misrepresentation was affirmed in a memorandum opinion.
In Smith v. Walker, No. W2022-00748-COA-R3-CV (Tenn. Ct. App. Mar. 28, 2023) (memorandum opinion), plaintiffs purchased a home from defendants, and soon after the purchase, plaintiffs discovered that the home was contaminated with mold. Plaintiffs filed suit for breach of contract, negligence, negligent misrepresentation, and intentional misrepresentation, but the trial court granted summary judgment for defendants based on the “as is” nature of the purchase agreement. Plaintiffs appealed the summary judgment order, and the Court of Appeals found that the trial court order “was deficient because it did not address each of the causes of action alleged by Buyers and included scant reasoning and explanation regarding its ruling….”
On remand, the trial court entered a new order granting summary judgment. In this more detailed order, the trial court addressed all of plaintiffs’ claims and explained the basis for summary judgment. The trial court noted that plaintiffs could not support their misrepresentation claims because they “failed to identify any ‘false information’ provided by [defendants],” and that plaintiffs “failed to present any credible proof that [defendants] represented to them that the home was ‘free from mold or other contaminants.’” The trial court also pointed out that the sales contract stated that plaintiffs had a duty “to inspect for mold or other contaminates,” and that plaintiffs had presented no proof that defendants knew about the mold.
After entry of this second summary judgment order, plaintiffs appealed again. For this appeal, however, plaintiffs “filed essentially the same brief as in the previous appeal despite entry of the Trial Court’s revised order…” The Court of Appeals stated that plaintiffs’ citations to the record pointed to incorrect pages of the record, noting that “[c]onsistently incorrect citations to the appellate record is no improvement from a complete lack of citations.” The Court also pointed out that despite the additional legal grounds included in the trial court’s second order, plaintiffs’ brief focused only on the “as is” basis of the sales contract, which was the trial court’s reasoning for its first order. “Due to [plaintiffs’] failure to cite to the appropriate appellate record in its brief and to even address the revised judgment from which they appealed,” the Court ruled that plaintiffs failed to comply with the Tennessee Rules of Appellate Procedure and thus waived any arguments on appeal. Summary judgment for defendants was accordingly affirmed.
This opinion was released 2.5 months after the case was assigned on briefs.