David Simpkins v. John Maher Builders, Inc. ( 2022 )

05/04/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 1, 2022
DAVID SIMPKINS ET AL. v. JOHN MAHER BUILDERS, INC. ET AL.
Appeal from the Chancery Court for Williamson County
No. 20-CV-50050M James G. Martin, III, Chancellor
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No. M2021-00487-COA-R3-CV
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In this action concerning a newly-constructed home, the plaintiffs asserted, inter alia,
claims of breach of contract, breach of warranty, fraud, intentional misrepresentation,
fraudulent concealment, negligence, and unfair and deceptive business practices by the
defendant construction company and its owners. The trial court granted a motion to
dismiss filed by the defendants based upon expiration of the three-year statute of
limitations applicable to claims of injury to real property. We determine that although
the trial court properly applied the three-year statute of limitations to the plaintiffs’
claims of injury to their real property, the trial court improperly determined that the
doctrine of fraudulent concealment would not apply to toll the accrual of such limitations
period concerning the plaintiffs’ claims for damages caused by the defendants’ failure to
seal the utility penetrations beneath the home, a fact which allegedly was concealed by
the defendants. We also determine that the plaintiffs stated claims of breach of contract,
including breach of any express or implied warranties provided by the contract, and that
the trial court improperly dismissed these claims based on the incorrect statute of
limitations. We therefore vacate the trial court’s dismissal of the breach of contract and
contractual warranty claims, as well as the claims based on the defendants’ failure to seal
the utility penetrations, and we remand those claims to the trial court for further
proceedings consistent with this opinion. We affirm the remaining portion of the trial
court’s judgment in its entirety.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Vacated in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.
David Simpkins and Sally Simpkins, Spring Hill, Tennessee, Pro Se.
J. Paul Brewer, Nashville, Tennessee, for the appellees, John Maher Builders, Inc.; John
Maher; and Tony Maher.
OPINION
I. Factual and Procedural Background
The plaintiffs, David and Sally Simpkins (collectively, “Plaintiffs”), filed a pro se
complaint on December 30, 2020, in the Williamson County Chancery Court (“trial
court”) against John Maher Builders, Inc. (“JMB”); John Maher; and Tony Maher
(collectively, “Defendants”). Plaintiffs averred that on August 4, 2017, they had
purchased real property with a newly constructed home in Spring Hill, Tennessee, built
by Defendants. Plaintiffs asserted that this home was improperly built and contained
both construction defects and substandard building materials, which caused the home to
be “infested with mold and other microbial growth.” Plaintiffs claimed that as a result of
their exposure to mold and other toxins in the home, they had suffered numerous health
issues, resulting in medical expenses and a loss of income.
In their complaint, Plaintiffs averred that Defendants should be held liable for,
inter alia, claims of breach of contract, breach of warranty, fraud, intentional
misrepresentation, fraudulent concealment, negligence, and unfair and deceptive business
practices. Plaintiffs sought damages in excess of ten million dollars, in addition to pre-
and post-judgment interest, revocation of JMB’s contractor’s license, and injunctive relief
preventing Defendants’ involvement in the building industry, among other things.
Plaintiffs attached exhibits to their complaint numbering hundreds of pages, which
included home inspection and other reports as well as affidavits executed by Plaintiffs.
Plaintiffs also filed a uniform civil affidavit of indigency.
On January 27, 2021, Plaintiffs filed an “Emergency Motion for Injunctive Relief
and Permanent Monetary Injunctive Relief or Default Judgement and Memorandum,”
asserting that no disputed material facts existed and requesting that the trial court grant
them immediate relief. Plaintiffs included that in addition to their health problems, they
were being threatened with imminent foreclosure on their mortgage loan. The trial court
entered an order regarding the motion on January 29, 2021, stating in pertinent part:
Plaintiffs’ claims are governed by Tennessee law and the procedure
for handling this matter is governed by the Tennessee Rules of Civil
Procedure. The Plaintiffs seek immediate relief without affording the
Defendants an opportunity to be heard. The Plaintiffs have tendered a
proposed Order suggesting that the Court grant such relief including a
judgment against the Defendants for a sum in excess of $3 million together
with treble damages in excess of $9 million. The Court has no authority to
grant such relief under Rule 65 of the Tennessee Rules of Civil Procedure
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or any other rule contained therein. Accordingly, Plaintiffs’ application
shall be, and is hereby, denied.
On February 8, 2021, Defendants filed a motion to dismiss, pursuant to Tennessee
Rule of Civil Procedure 12.02(6), asserting that Plaintiffs’ complaint failed to state a
claim upon which relief could be granted. Defendants posited that Plaintiffs’ claims were
barred by the applicable statute of limitations, codified at Tennessee Code Annotated §
28-3-105, which provided that “[a]ctions for injuries to . . . real property” “shall be
commenced within three (3) years from the accruing of the cause of action.” Defendants
maintained that Plaintiffs’ allegations of fraud and misrepresentation were also subject to
a three-year statute of limitations, relying on Med. Educ. Assistance Corp. v. State ex rel.
E. Tenn. State Univ. Quillen Coll. of Med., 19 S.W.3d 803, 817 (Tenn. Ct. App. 1999).
Defendants argued that because Plaintiffs had acknowledged in their complaint that they
had become aware of the mold problems in the home in August 2017, their claims filed in
December 2020 were untimely.
On March 9, 2021, Plaintiffs filed a response, objecting to Defendants’ motion to
dismiss and seeking to have the motion to dismiss stricken. Plaintiffs asserted that they
had actually filed thirteen separate claims with various dates of discovery and statutes of
limitations applicable to each. Plaintiffs again asked the trial court to issue a final
judgment in their favor. On March 15, 2021, Plaintiffs restated their response to the
motion to dismiss and their request for immediate relief as an “Emergency Motion.”
The trial court conducted a hearing concerning the motion to dismiss on March 23,
2021, considering arguments from Plaintiffs and Defendants’ counsel. The court
subsequently entered an order on April 5, 2021, stating in pertinent part:
The Court finds that this matter concerns the alleged damage to Plaintiffs’
real property and, as such, the statute of limitations that controls is Tenn.
Code Ann. § 28-3-105 which provides three (3) years for the filing of an
action based upon damage to real property. The Court finds that Plaintiffs’
Complaint shows that Plaintiffs were aware of the alleged damages and that
the causes of action accrued in August of 2017. The Plaintiffs did not file
this matter until December 30, 2020. As such, Plaintiffs failed to file their
Complaint within the required three (3) year statute of limitations of Tenn.
Code Ann. § 28-3-105. Thus, Defendants’ Motion is well taken and it is
hereby GRANTED.
The trial court accordingly dismissed Plaintiffs’ complaint with prejudice.
Meanwhile, on March 30, 2021, Plaintiffs filed a motion seeking relief from the
trial court’s judgment pursuant to Tennessee Rule of Civil Procedure 60.02. Plaintiffs
claimed that the trial court had failed to consider all of Plaintiffs’ alleged causes of
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action. On April 6, 2021, the trial court entered an order concerning Plaintiffs’ motion
wherein the court stated that because the April 5, 2021 order was not final, the court
would construe the motion to be a Rule 59 motion. The court acknowledged Plaintiffs’
argument that the court had failed to consider matters filed in their amended response to
the motion to dismiss. Further acknowledging that it had not yet seen or considered
Plaintiffs’ amended response at the time of its ruling, the court directed Defendants to file
a reply to Plaintiffs’ amended response within ten days, at which time the court would
either rule based on the pleadings or set the matter for further hearing. Defendants
subsequently filed a reply maintaining that the trial court’s ruling should stand.
On April 20, 2021, Plaintiffs filed a motion seeking to “Vacate Void Judgment for
Fraud on the Court and Deprivation of Plaintiffs’ Constitutional Rights.” Plaintiffs
argued, inter alia:
On March 23, 2021, a Hearing was conducted by the Court which
allowed only very brief arguments from the Plaintiffs. Defendants make
alleged fraudulent claims and statements that misrepresent the facts and
truths thereby presenting fraud on the Court, information which the Court
used as the premise for its dismissal. Plaintiffs are restricted from
presenting their complete argument to make all case points that had been
legally argued in the written motion, and the Court makes a ruling in favor
of the Defendants based on misrepresentation of the law and facts by the
Counsel for the Defendants. The erred ruling showed distinct bias for the
Defendants and violated the Plaintiffs[’] Rights. Plaintiffs attempt to
address in the Hearing the erroneous claims by the Court and the Court[’s]
singular view of a “tort” claim under a single statute. This was a complete
misrepresentation of the facts of the Plaintiffs[’] thirteen (13) separate
claims with different statutes of limitations, and different statutes and
authorities proving the Plaintiffs[’] claims against the Defendants and
numerous alleged frauds, code violations, Breach of Contract, Breach of
Warranty, Breach Of The Covenant Of Good Faith And Fair Dealing,
Fraud - Constructive, Fraudulent Concealment, Fraudulent Inducement,
Intentional Misrepresentation, Negligent Misrepresentation, Promissory
Fraud, Theft, and Unfair and Deceptive Practices. The Court refused to
look at any of the claims and legal citations that the Plaintiffs presented to
the Court creating alleged fraud on the Court.
Despite the filing of their motion, on May 5, 2021, Plaintiffs prematurely filed separate
notices of appeal as to each of the Defendants, listing the judgment date as April 5, 2021.
The trial court entered an order addressing Plaintiffs’ motions on May 7, 2021. In
its order, the court again noted that it would construe Plaintiffs’ motions as made
pursuant to Tennessee Rule of Civil Procedure 59.04. The court stated that pursuant to
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applicable case law, a Rule 59.04 motion should be granted when (1) the controlling law
changes before the judgment becomes final, (2) when previously unavailable evidence
becomes available, or (3) to correct a clear error of law or to prevent injustice. See
Stricklin v. Stricklin, 490 S.W.3d 8, 11 (Tenn. Ct. App. 2015). The court elucidated that
because Plaintiffs had not alleged that either of the first two reasons were applicable, it
would address whether there was a clear error of law or whether the court needed to act
to prevent an injustice.
As the trial court noted, Plaintiffs made several arguments in support of their
motions. First, Plaintiffs advanced that they had stated claims of breach of contract,
breach of warranty, and breach of the covenant of good faith and fair dealing. The court
determined, however, that the gravamen of all of Plaintiffs’ claims related to the
construction defects and Defendants’ “refusal to act on those defects.” The court further
noted that Plaintiffs sought recovery of damages as a result of those defects. As such, the
court concluded that Plaintiffs’ claims stated an action for injury to real property, which
was subject to the three-year statute of limitations found in Tennessee Code Annotated §
28-3-105. In making its determination, the trial court relied on this Court’s decision in
Kirby Farms Homeowners Ass’n v. Citicorp, Citibank, N.A., 773 S.W.2d 249 (Tenn. Ct.
App. 1989), finding the case to be factually similar to the instant action.
The trial court also addressed Plaintiffs’ argument that they had not discovered
their cause of action until January 2018 when Middle Tennessee Mold Remediation
submitted its report stating that Defendants had not made the repairs that they claimed
they had completed. The court determined, however, that the allegations in Plaintiffs’
complaint demonstrated that Plaintiffs knew of defects in the home in August 2017
despite the fact that they might have discovered additional defects at a later time. With
respect to Plaintiffs’ contention that fraudulent concealment would toll the statute of
limitations, the court determined that Plaintiffs would have to demonstrate that
Defendants’ knowingly concealed or failed to disclose information in order to mislead
Plaintiffs and that Plaintiffs could not have discovered the cause of action while
exercising reasonable care because of the concealment. The court found that because (1)
Plaintiffs had acknowledged in their complaint that they had knowledge of the mold the
day before closing and began to suffer physical effects within two weeks of closing, (2)
Tony Maher had told Plaintiffs in late August 2017 that they would have to sue
Defendants in order to make them act, and (3) Defendants failed to act thereafter,
Plaintiffs could not obtain relief on the basis of fraudulent concealment.
With regard to Plaintiffs’ reliance on Tennessee Code Annotated § 28-3-202, the
trial court explained that this was a statute of repose, rather than a statute of limitations,
and therefore did not affect the timeliness of Plaintiffs’ complaint. In relation to
Plaintiffs’ “emergency motions,” the court explained that it could not grant immediate
relief to Plaintiffs without a hearing on the merits or in the absence of statutory authority
that would afford such relief. Concerning Plaintiffs’ dissatisfaction with the court’s entry
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of the order of dismissal, the trial court indicated that Defendants’ counsel had submitted
a proposed order following the March 23, 2021 hearing and that the court did not act on
the order for at least ten days. During the interim, Plaintiffs submitted no alternate
proposed order.
The trial court acknowledged that Plaintiffs had made warranty claims based on
Tennessee Code Annotated § 47-18-1402; however, the court determined that this statute
applied to consumer products and that a house was not a product. Finally, with reference
to Plaintiffs’ arguments that the trial court was biased or had otherwise deprived
Plaintiffs of their constitutional rights, the court stated:
The Court understands that [Plaintiffs] are displeased with the
Court’s rulings. However, [Plaintiffs’] Complaint was not timely filed.
The Court made its determination based on the applicable statute of
limitations. The fact that the Defendants have appeared before this Court in
previous litigation had no bearing on the Court’s determination in this
litigation. Regarding [Plaintiffs’] claim that the Court denied them due
process, the Court finds the argument to be without merit. The Court
dismissed the Complaint pursuant to Tennessee Code Annotated § 28-3-
105. [Plaintiffs] do not argue that the Tennessee Code Annotated § 28-3-
105 is unconstitutional as applied to them. The Court has addressed all of
the matters pending before the Court in this litigation. The Court finds that
[Plaintiffs] have failed to establish that there has been a clear error of law to
warrant altering or amending any of its orders. [Plaintiffs’] Motions are
DENIED.
Plaintiffs filed a motion to alter or amend on May 14, 2021, reiterating many of
their earlier arguments. The trial court entered an order on May 18, 2021, explaining that
(1) it had ruled on all matters by order entered May 7, 2021, and (2) Plaintiffs had already
appealed to this Court. The trial court therefore determined that it no longer maintained
subject matter jurisdiction in the action and declined to rule on Plaintiffs’ May 14, 2021
motion. This appeal followed.
II. Issues Presented
Plaintiffs present the following issues for our review, which we have quoted here
as they appear in Plaintiffs’ appellate brief:
1. Whether it was a “Breach of Contract” by [Defendants] when Tony
Maher, COO for John Maher Builders, Inc., knew about the mold in
the residential property prior to closing, and then intentionally sold
the residential property to [Plaintiffs] on August 4, 2017, with the
knowledge that there was mold in the property?.
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2. Whether Tony Maher admitting to Spring Hill Police Detective
Robert Carden that he was aware that there was mold in the property
but did not disclose this information in the Tennessee Residential
Property Condition “Disclosure Form” as required by Tenn. Code
Ann. § 66-5-202 is a violation of Tenn. Code Ann. § 66-5-202 and a
resultant “Breach of Contract?” Based on the case law Ralph Hall
Et Al. V. Jimmy D. Tabb Et Al. W2020-00740-COA-R3-CV—
(March 25, 2021), the Appellate Court found that, “[that the Tabbs]
were deceptive and that they had an affirmative duty to disclose the
same on the [Disclosure Form].”
3. Whether the answer to question (1) “breach of contract”, allows the
[Plaintiffs] an immediate ruling, at minimum, for “Default
Judgment” based on “Intentional Fraud” and “Breach of Contract”,
or to allow a “Final Judgement with Prejudice” against the
[Defendants]?
4. Whether the answers to questions 1 and 2, also on the same day that
[Plaintiffs] closed on their property also became an act of “theft”
according to Tenn. Code. Ann. § 39-14-154 by (b)(1)(A)(i),
(2)(A)(B)(C)(i)(ii)?
5. Whether the Court violated [Plaintiffs’] rights by not allowing
[Plaintiffs] use of Tenn. Code Ann. § 47-18-1402, Warranty
Extension Period when a property/home was determined by
Appellate Court rulings to be a product in Dixon v. Mountain City
Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982) which [Plaintiffs]
presented this case law in their Complaint and almost every motion
filed?
6. Whether [Plaintiffs] are entitled to a “Default” or “Final” Judgment
based on the Court depriving [Plaintiffs] of their right of using Tenn.
Statute, Tenn. Code Ann. § 47-18-1402 where their property is still
under warranty to this day?
7. Whether [Plaintiffs’] demand for a refund of their monies per Tenn.
Code. Ann. § 39-14-154 was a failure by JMB to not pay within 10
days for the act of “theft”, that the act of “theft” did occur according
to Tenn. Code. Ann. § 39-14-154?
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8. Whether the “Date of Service” change by the Court from January 12,
2021, to January 27, 2021, in error, and did the error prevent a
“default judgment” for [Plaintiffs]?
9. Whether the Court’s ruling to dismiss the Plaintiff[s’] (13) merited
and timely claims, in its entirety and with prejudice, violate the
Rules of civil procedure and deprive [Plaintiffs’] rights to “Due
Process of Law”?
10. Whether the Chancery Court failed to protect [Plaintiffs’] basic
inalienable Constitutional Rights to “Due Process of Law”
throughout the Court proceedings?
11. Whether the Court incorrectly dismissed [Plaintiffs’] Complaint
based on using Tenn. Statute, 28-3-105 as the controlling law?
12. Whether the Chancery Court violated [Plaintiffs’] Constitutional
Rights when the Court dismissed [Plaintiffs’] Complaint in its
entirety?
13. Whether the Chancery Court applied an incorrect legal standard to
reach the decision to dismiss [Plaintiffs’] Complaint in its entirety,
against logic or proper reasoning, and cause an injustice to
[Plaintiffs]?
14. Whether the Court violated the Rules of Civil Procedure when the
Court failed to set a new hearing after its own admission of not
including [Plaintiffs’] March 15, 2021 “Amended Emergency
Motion and Memorandum of Law” in the March 23, 2021, Hearing
in which the Court decided to dismiss the case in its entirety without
including either the March 9th or the March 15th, 2021, Motions and
Memorandums of Law?
15. Whether the Chancery Court violated [Plaintiffs’] Rights when it
ordered the opposing party to argue [Plaintiffs’] March 15, 2021
“Amended Emergency Motion and Memorandum of Law” after
[Defendants] had failed to respond and argue the Emergency Motion
and Memorandum of Law on their own within the fifteen (15) day
requirement by the Rules of Civil Procedure and subsequently
[Defendants] fell under the Rule of Civil Procedure 12.08 waiving
all rights to a Defense for [Defendants’] failure to respond to either
the March 9 or the March 15, 2021 Motions and Memorandums of
Law?
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16. Whether the Chancery Court exceed its power and authority in its
ruling dismissing all [Plaintiffs’] thirteen individual claims?
17. Whether all the Chancery Court’s rulings were null and void due to
the violations of [Plaintiffs’] rights to “Due Process of Law?”
18. Whether the errored rulings of the Chancery Court, and the prejudice
treatment by the Court against [Plaintiffs], are [Plaintiffs] entitled to
a Final Judgment against [Defendants]?
19. Whether the Chancery Court showed prejudice against [Plaintiffs]
by providing latitude for [Defendants] and showing harsh treatment
towards [Plaintiffs] provided an unlawful benefit to the
Defendants/Appellees?
20. Whether based on the Laws, Authorities, and Preponderance of
indisputable evidence that [Plaintiffs] presented to the Chancery
Court, did the Chancery Court make an errored ruling in dismissing
[Plaintiffs’] Complaint in its entirety?
21. Whether the Court failed to use the correct Controlling Law, which
should have been “Breach of Contract,” Tenn. Code Ann. § 28-3-
109(a)(3)?
22. Whether the Court properly determined the “discovery” dates of
issues discovered during each inspection in conformance with the
Supreme Court’s rulings for how the Court is to establish the date of
discovery especially when the Builder/Defendants/Appellees
demand that [Plaintiffs] provide those reports? (See Exhibit - SIMP-
00A13 - Wayne Thurmon - Carpet Warranty Already Voided 11-27-
17). (R. Vol. 2, Pg. 0263).
23. Whether the Chancery Court violated the Supreme Court and the
Appellate Court ruling on how the Court is to determine the proper
“gravamen” of each of [Plaintiffs’] individual claims? (R. Vol. 10,
Pgs., 1325, Lines 22-31, 1326 Lines 48 & 49, 1327, Lines 1-17,
1243, 1244).
24. Whether the Court errored and violated [Plaintiffs’] Rights and
deprived [Plaintiffs] of remedies they were entitled to based on
failure to rule on “Abandonment” and “Fraud” by the Builder?
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25. Whether [Plaintiffs’] property is still under warranty based on
[Plaintiffs’] property being classified as a “product” according to the
Appellate Court ruling in Dixon v. Mountain City Constr. Co., 632
S.W.2d 538, 541 (Tenn. 1982)?
26. Whether based on the fact that Tenn. Code Ann. § 66-36-103 has
been allowed to be used in residential settings, “E.g., Greeter Const.
Co. v. Tice, 11 S.W.3d 907, 910-11 (Tenn. Ct. App. 1999); Lavy v.
Carroll, No. M2006-00805-COAR3-CV, 2007 Tenn. App. LEXIS
809, at **9-10 (Tenn. Ct. App. Dec. 26, 2007), and, Custom Built
Homes by Ed Harris v. McNamara, No. M2004-02703-COA-R3-
CV, 2006 Tenn. App. LEXIS 781, at **14-15 (Tenn. Ct. App. Dec.
11, 2006),” are [Plaintiffs] entitled to the same use and therefore
their statute of limitations started on November 2018 extending
[Plaintiffs’] Statute of Limitations to May of 2022?
27. Whether the Court errored in not providing a TRO to prevent
[Plaintiffs’] property from going into foreclosure knowing it is the
central evidence in this Complaint?
28. Whether the Court error by not enforcing the repeated
Recommendations/Requirements of the Mold Expert in reports
spanning two years that the Builder was to either provide temporary
housing or to provide funds to [Plaintiffs] so that they could move in
substitute housing due to the extreme toxic environment and
causation of [Plaintiffs’] health crisis?
29. Whether the Court errored by not ruling on the fraudulent
concealment and fraudulent misrepresentation when there were three
times that [Defendants] could have disclosed the truth that the
“Utility Penetrations” in the crawlspace were never sealed when they
falsely stated that the utility penetrations were sealed?
30. Whether the Chancery Court violated [Plaintiffs’] rights when it
failed to rule on RPC 1.6 for the financial and physical injury that
[Defendants’] Attorney was to ensure that his Client did not cause
financial of substantial physical harm to occur against [Plaintiffs]?
31. Whether the Court errored by not ruling on the theft according to
Tenn. Code Ann § 39-14-154(b)(1)(A)(i), (2)(B),(c)(1): New home
construction and home improvement services; offenses; penalties
and restitution?
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32. Whether the Court errored when it did not convert the Dismissal of
the Complaint into a Rule 56 Procedure for Summary Judgement?
III. Standard of Review
As our Supreme Court has explained concerning motions to dismiss for failure to
state a claim under Tennessee Rule of Civil Procedure 12.02(6):
A Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. The
resolution of a 12.02(6) motion to dismiss is determined by an examination
of the pleadings alone. A defendant who files a motion to dismiss “‘admits
the truth of all of the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to establish a cause of
action.’” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn.
2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d
512, 516 (Tenn. 2005)).
In considering a motion to dismiss, courts “‘must construe the
complaint liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences.’” Tigg v. Pirelli Tire
Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (quoting Trau-Med [of Am., Inc.
v. Allstate Ins. Co.], 71 S.W.3d [691,] 696 [(Tenn. 2002)]). A trial court
should grant a motion to dismiss “only when it appears that the plaintiff can
prove no set of facts in support of the claim that would entitle the plaintiff
to relief.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn.
2002). We review the trial court’s legal conclusions regarding the
adequacy of the complaint de novo.
Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(other internal citations omitted).
We recognize that Plaintiffs are pro se litigants and respect their decision to
proceed self-represented. With regard to self-represented litigants, this Court has
explained:
Pro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden. Gray v. Stillman
White Co., 522 A.2d 737, 741 (R. I. 1987). Conducting a trial with a pro se
litigant who is unschooled in the intricacies of evidence and trial practice
can be difficult. Oko v. Rogers, 125 Ill. App.3d 720, 81 Ill. Dec. 72, 75,
466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to
appreciate and be understanding of the difficulties encountered by a party
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who is embarking into the maze of the judicial process with no experience
or formal training.
Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Although
parties proceeding without benefit of counsel are “entitled to fair and equal treatment by
the courts,” we “must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.”
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). In addition, this Court
must “be mindful of the boundary between fairness to a pro se litigant and unfairness to
the pro se litigant’s adversary.” Id. Moreover, “[p]ro se litigants are not . . . entitled to
shift the burden of litigating their case to the courts.” See Chiozza v. Chiozza, 315
S.W.3d 482, 487 (Tenn. Ct. App. 2009) (quoting Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000)).
IV. Applicability of Tennessee Code Annotated § 28-3-105 to
Plaintiffs’ Claims Alleging Breach of Contract and Warranty
Several of Plaintiffs’ issues address the question of whether the trial court
improvidently dismissed Plaintiffs’ breach of contract claims, including claims asserting
breach of any express or implied warranties contained in the parties’ contract. Plaintiffs
contend that they properly stated claims of breach of contract because, inter alia, (1)
Defendants sold the home in question to Plaintiffs with knowledge that mold existed in
the crawl space and (2) Defendants did not disclose the existence of mold on the
residential property disclosure statement in accordance with Tennessee Code Annotated §
66-5-202 (2015) (providing that a home owner shall provide to a purchaser a “residential
property disclosure statement in the form provided in this part regarding the condition of
the property, including any material defects known to the owner.”). Plaintiffs further
postulate that the trial court erroneously determined that the gravamen of their claims
concerned construction defects and Defendants’ refusal to remedy those defects.
Plaintiffs assert that the trial court should have applied the six-year statute of limitations
found in Tennessee Code Annotated § 28-3-109(a)(3) (2017) to the breach of contract
claims, thus rendering those claims timely. For these reasons, Plaintiffs argue that they
are entitled to an immediate final or default judgment.
The overarching issue to be addressed with regard to Plaintiffs’ allegations
concerning their breach of contract claims is whether the trial court properly determined
that the gravamen of the claims was for injury to Plaintiffs’ real property rather than
breach of contract. In so ruling, the trial court relied upon this Court’s opinion in Kirby
Farms, 773 S.W.2d at 250, wherein the plaintiffs, who were purchasers of condominiums
built by the developer defendants, filed a class action lawsuit concerning construction
defects and asserted claims of, inter alia, breach of express and implied warranties based
on their contracts with the developers. See id. at 250. The trial court in Kirby Farms
granted summary judgment to the developers based on Tennessee Code Annotated § 28-
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3-105, and the plaintiffs appealed to this Court. Id. On appeal, this Court was asked to
determine whether the six-year statute of limitations applicable to claims of breach of
contract found in Tennessee Code Annotated § 28-3-109 should have been applied. Id.
The Kirby Farms Court concluded that the trial court had properly applied
Tennessee Code Annotated § 28-3-105 as a bar to the plaintiffs’ claims, stating:
It is well settled in this state that the gravamen of an action, rather
than its designation as an action for tort or contract, determines the
applicable statute of limitations. Pera v. Kroger Co., 674 S.W.2d 715, 719
(Tenn. 1984). The word “actions” in T.C.A. § 28-3-105 refers to the
subject matter of the controversy and not to the remedial procedure.
Whether an action for the recovery of damages to personal or real property
results from a breach of contract or from a tort, independent of contract, is
immaterial. Williams v. Thompson, 223 Tenn. 170, 172, 443 S.W.2d 447,
449 (1969).
The facts in Williams v. Thompson are very similar to the present
case. In Williams, the plaintiffs sued the builders of their residence,
complaining of defects such as cracks in the walls, window and door
frames out of alignment, settling of the foundation, and sinking of the house
into the ground. Plaintiffs’ complaint alleged the defendants breached an
implied duty in the contract to construct the residence in a good and
workmanlike manner. In holding the three-year statute rather than the six-
year statute applicable, the court stated, “[A]lthough complainants’ bill
sounds in contract . . . the only injury alleged in the bill is physical injury to
the residence which allegedly occurred and was known to complainants
more than three years prior to commencing the action.” Id., 443 S.W. at
449.
In the present case, we find the gravamen of plaintiffs’ complaint is
for injury to real property. Paragraph seven of the second amended
complaint declares, “This action is brought to recover damages to that
property, sometimes referred to as the ‘common areas,’ which the named
individual plaintiffs and other members of the class own as tenants in
common.” The complaint further alleges plaintiffs have expended large
sums of money in attempts to repair the defects and request to be
compensated for those expenditures.
In Count I of the Second Amended Complaint, under the heading
“Breach of Express Warranty” recovery is sought for structurally and
functionally defective building components. In Count III, under the
heading “Implied Warranties of Habitability, Quality and Merchantability”
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recovery is sought, in paragraph 36, “for the repair and maintenance of the
property, building and improvements of the development.” In Count VII
plaintiffs claim that defendants breached their fiduciary duty to the
plaintiffs since they had control of the Homeowner’s Association until
August of 1978. Plaintiffs contend that defendants failed to keep adequate
records, failed to disclose defective workmanship, failed to provide a
reserve fund, misrepresented the amount of maintenance fees, and did other
things to breach their fiduciary duties. We note that no specific damages
were sought for any of these enumerated breaches of fiduciary duty
separate and apart from a demand for total damages in the amount of
$3,000,000 for all of the delineated actions.
When the damages for which recovery is sought represent the cost of
repair or the replacement cost of property and such accrued damages are the
result of negligent acts, the action is for damage to property and covered by
T.C.A. § 28-3-105. Harvest Corp. v. Ernst & Whinney, 610 S.W.2d 727,
729 (Tenn. App. 1980). Although plaintiffs attempt to distinguish their
case on the ground they are not alleging a tort, but suing simply because
defendants failed to comply with their contract, which caused the damages
complained of, their case cannot be so distinguished. Williams v.
Thompson, supra 443 S.W.2d at 450 (rejecting this exact argument);
Prescott v. Adams, 627 S.W.2d 134, 137 (Tenn. App. 1981). Prescott was
an action brought by purchasers against vendors and a real estate agent for
(1) fraud in the inducement of a contract, (2) misrepresentation, (3)
negligence in the design of an improvement to real property, (4) breach of a
fiduciary duty, and (5) breach of the implied warranties of marketability
and habitability. The Court said that “since the gravamen of the complaint
in this case is for damages to real property, we think all of the theories
advanced by the plaintiffs are governed by the three year statute of
limitations.”
Kirby Farms, 773 S.W.2d at 251. The Kirby Farms Court therefore affirmed the trial
court’s grant of summary judgment. Id. at 252.
The analysis utilized in Kirby Farms has been adopted by this Court in other cases
involving construction defects wherein the plaintiffs also alleged a breach of contract.
See, e.g., Liggett v. Brentwood Builders, LLC, No. M2007-00444-COA-R3-CV, 2008
WL 836115, at *3-4 (Tenn. Ct. App. Mar. 27, 2008); Molin v. Perryman Constr. Co., No.
01-A-019705-CV-00232, 1998 WL 83737, at *1 (Tenn. Ct. App. Feb. 27, 1998); Conley
v. Jim Wright Constr. Co., No. 01-A-019012-CH-00440, 1991 WL 107871, at *1 (Tenn.
Ct. App. June 21, 1991). Liggett involved the plaintiffs’ purchase of a newly constructed
home from the builder and their subsequent discovery of water leaks throughout the
home. 2008 WL 836115, at *1. The plaintiffs complained about the leaks, and the
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builder attempted repairs over a period of approximately three years. Id. The plaintiffs
eventually filed a lawsuit against the builder, stating claims of fraud, breach of contract,
consumer protection violations, negligent misrepresentation, and negligence. Id. at *2.
The trial court in Liggett granted summary judgment to the builder based on
expiration of the three-year statute of limitations applicable to injuries to real property,
Tennessee Code Annotated § 28-3-105 (2017), and this Court affirmed that ruling on
appeal. Id. at *6. The Liggett Court determined that the gravamen of the action was
based on an injury to real property and accordingly affirmed the trial court’s application
of Tennessee Code Annotated § 28-3-105 to the plaintiffs’ claims alleging breach of
contract. Id.
In Molin, the plaintiffs filed suit against the defendant construction company,
which the plaintiffs had hired to renovate their home. Molin, 1998 WL 83737, at *1.
Although the plaintiffs immediately noticed problems with the work that had been
performed, they did not file suit right away because the defendant continued to make
repairs. Id. The plaintiffs did eventually file a complaint alleging that the defendant had
breached his contract with the plaintiffs by failing to exercise good workmanship;
however, the trial court granted summary judgment to the defendant based on expiration
of the three-year statute of limitations found in Tennessee Code Annotated § 28-3-105.
Id. at *2.
On appeal, the Molin Court agreed that Tennessee Code Annotated § 28-3-105
contained the applicable statute of limitations. Id. at *4. As this Court explained:
Both Kirby Farms and Williams support our conclusion that section
28-3-105 contains the appropriate statute of limitations for the action in this
case. In the instant case, the gravamen of the Molins’ complaint is for
injury to real property. As in Williams, the complaint in this case sounds in
contract denoting as the “cause of action” a “breach of contract.” However,
the injury alleged is the damage to the Molins’ home. The complaint
alleges that “[t]here are a number of leaks in the roof which [Perryman] has
failed to correct. . . . [The Molins] have been injured as a result of
[Perryman’s] breach of contract. [They] have or will incur substantial
expenses to repair the leaks and other damages caused by the water.” In the
proposed amendment, Appellants alleged that “[t]he floors are buckling,
sagging and cracking. Floor joints have been crushed and twisted. Outside
walls are bowing and sagging. . . . [The Molins] will have to incur
substantial expense to correct these problems.” Thus, even a consideration
of the allegations in the proposed amendment reveals that there are no
damages other than this injury to the real property which have been claimed
by Appellants. See Prescott v. Adams, 627 S.W.2d 134, 137 (Tenn. Ct.
App. 1981) (“The major criterion in ascertaining the gravamen of an action
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is the kind of damage alleged.”). Accordingly, we are of the opinion that
section 28-3-105 applies to the facts in this case.
Id.Similarly, in Conley, the plaintiffs asserted a claim of breach of their construction
contract with the defendant construction company because their newly constructed home
exhibited leaks. 1991 WL 107871, at *1. The trial court granted summary judgment to
the defendant based on expiration of the three-year statute of limitations in Tennessee
Code Annotated § 28-3-105, and the plaintiffs appealed. Id. On appeal, the Conley
Court determined:
[T]he gravamen of the action, rather than designation as an action for tort or
contract, determines the applicable statute of limitations. Whether the
action for recovery of damages results from a breach of contract or tort is
immaterial. When the damages sought are the cost of repair or replacement
of improvements to realty and the accrued damages result from the
defendant’s negligence, the action is for damage to real property governed
by § 28-3-105.
Id. (internal citations omitted).
We note, however, that the concept of determining the “gravamen of the action”
was subsequently clarified by our Supreme Court in Benz-Elliott v. Barrett Enters, LP,
456 S.W.3d 140 (Tenn. 2015). In Benz-Elliott, the plaintiff filed suit against the
purchasers of a portion her real property, asserting that although the parties had signed a
contract of sale providing that the plaintiff would retain ownership of a sixty-foot-wide
strip of the property as a means of ingress and egress to her remaining property, the
warranty deed ultimately executed by the parties failed to contain such reservation. Id. at
142. The plaintiff filed suit more than three years after the sale was concluded, alleging
claims of breach of contract, intentional misrepresentation, and negligent
misrepresentation. Id. at 144. The defendants asserted as an affirmative defense
expiration of the three-year statute of limitations found in Tennessee Code Annotated §
28-3-105. Id. Following a trial on the merits, the trial court determined that the plaintiff
had proven that the parties’ contract was breached and awarded her damages resulting
from that breach. Id. at 146.
On appeal to this Court, the Benz-Elliott defendants posited, inter alia, that the
plaintiff’s claim was barred by the three-year statute of limitations, and this Court agreed,
determining that the gravamen of the claim was an action for damages to real property.
Benz-Elliott v. Barrett Enters, LP, No. M2013-00270-COA-R3-CV, 2013 WL 3958386(Tenn. Ct. App. July 29, 2013). The plaintiff appealed that ruling to our Supreme Court,
and the High Court reversed, determining that the gravamen of the plaintiff’s claim was
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breach of contract. Benz-Elliott, 456 S.W.3d at 152. In so ruling, the Supreme Court set
forth the proper analysis to be conducted with respect to this issue, elucidating:
It is oft-recited law in this State that to determine the governing
statute of limitations, a court must ascertain the “‘gravamen of the
complaint.’” Whaley [v. Perkins], 197 S.W.3d [665,] 670 [(Tenn. 2006)]
(quoting Gunter [v. Lab Corp. of Am.], 121 S.W.3d [636,] 638 [(Tenn.
2003)]); see also Mike v. Po Group, Inc., 937 S.W.2d 790, 793 (Tenn.
1996); Alexander v. Third Nat’l Bank, 915 S.W.2d 797, 798 (Tenn. 1996);
Vance v. Schulder, 547 S.W.2d 927, 931 (Tenn. 1977). However, defining
what this principle means has proven difficult over time.
Many Tennessee decisions have explained that ascertaining the
gravamen requires a court to determine the basis for which damages are
sought. However, early decisions of this Court focused exclusively upon
the type of injuries for which damages were sought and described the legal
basis of the action as “immaterial.” Williams v. Thompson, 223 Tenn. 170,
443 S.W.2d 447, 449 (1969).
In Williams, the defendants contracted to sell the plaintiffs a lot and
to build the plaintiffs a home on it. 443 S.W.2d at 449. The defendants
performed the contract, but after the plaintiffs moved into the home on
January 25, 1963, they noticed “cracks in the walls, window and door
frames out of alignment, settling of the foundation and sinking of the house
into the ground.” Id. at 448. The plaintiffs filed suit on July 19, 1968,
“alleging a breach of an implied warranty in the contract of sale, dated July
23, 1962, in that defendants did not construct the residence in a good and
workmanlike manner.” Id. at 449. This Court held that the action was
governed by the three-year statute of limitations because the complaint
alleged an injury to real property, even though the legal basis of the claim
was an alleged breach of an implied warranty in the sale contract. Id. at
449.
Even when more than one cause of action was alleged in a single
complaint, language in prior decisions of this Court seemed to suggest that
the complaint should be distilled to a single “gravamen” based on the type
of damages requested. See, e.g., Whaley, 197 S.W.3d at 670 (“The
‘applicable statute of limitations . . . will be determined according to the
gravamen of the complaint.’” (quoting Gunter, 121 S.W.3d at 638)); Vance,
547 S.W.2d at 931 (same).
More recently we have observed that “gravamen of the complaint” is
a “rather elliptical phrase” which “refers to the substantial point, the real
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purpose, or the object” of an action. Redwing v. Catholic Bishop for the
Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012) (internal quotation
marks omitted). We have also said that gravamen is not dependent upon
the “designation” or “form” litigants ascribe to an action. Id. (quoting Pera
v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984); Callaway v. McMillian,
58 Tenn. 557, 559 (1872)).
But our prior decisions have not specifically discussed the reality
that, at least since the adoption of the Tennessee Rules of Civil Procedure,
parties may assert alternative claims and defenses and request alternative
relief in a single complaint, regardless of the consistency of the claims and
defenses. Tenn. R. Civ. P. 8.01, 8.05, 18.01, 18.02; see also Barnes v.
Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (“[A]lternative pleadings are
expressly permitted, regardless of consistency . . . .”); Concrete Spaces, Inc.
v. Sender, 2 S.W.3d 901, 909 (Tenn. 1999) (explaining that alternative
pleadings are permitted). Such alternative claims may well be subject to
differing statutes of limitations. An analysis such as that employed in
Williams and early decisions would, in fact, be unworkable as it would
require a court to identify a single gravamen from a complaint that alleges
alternative, and potentially inconsistent, claims. We agree with the Court
of Appeals that, in choosing the applicable statute of limitations, courts
must ascertain the gravamen of each claim, not the gravamen of the
complaint in its entirety. Black v. Sussman, No. M2010-01810-COA-R3-
CV, 2011 WL 2410237, at *8 (Tenn. Ct. App. June 9, 2011); Bluff Springs
Apartments, Ltd. v. Peoples Bank of the South, No. E2009-01435-COA-R3-
CV, 2010 WL 2106210, at *10 (Tenn. Ct. App. May 26, 2010); Mid-South
Indus., Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, 31-32 (Tenn. Ct.
App. 2010); Craighead v. BlueCross BlueShield of Tenn., Inc., No. M2007-
01697-COA-R10-CV, 2008 WL 3069320, at *8 (Tenn. Ct. App. July 31,
2008); Lewis v. Caputo, No. E1999-01182-COA-R3-CV, 2000 WL
502833, at *4 (Tenn. Ct. App. Apr. 28, 2000)[.]
Id. at 147-49 (footnote and other internal citations omitted).
Having determined that a court must consider each claim asserted, the High Court
in Benz-Elliott proceeded to set forth the proper analysis for determining the gravamen of
each claim, adopting the following two-step approach:
[A] court must first consider the legal basis of the claim and then consider
the type of injuries for which damages are sought. This analysis is
necessarily fact-intensive and requires a careful examination of the
allegations of the complaint as to each claim for the types of injuries
asserted and damages sought.
- 18 -
Id. at 151.
Based upon our Supreme Court’s instruction from Benz-Elliott, we will therefore
proceed in the instant action to determine both the legal basis of the claims in question
and the type of injuries for which damages are sought. Plaintiffs averred in their
complaint that their home, built by Defendants, was uninhabitable and toxic due to mold
therein. Plaintiffs claimed, inter alia, that their home was “Incomplete, Unsealed,
Unfinished containing numerous undisclosed/negligently and fraudulently concealed
Code Violations (omissions), with defective conditions at the time of sale), defective
design, defective construction, defective and non-conforming construction by poor
workmanship.” Plaintiffs also claimed that Defendants had utilized “defective/damaged
building materials (infested with mold and other microbial growth), that were
purposefully hidden and not disclosed by JMB as required by Law.” Plaintiffs
complained that Defendants had failed and refused to remedy the defective conditions
despite Plaintiffs’ warranty claims, stating that Tony Maher told them in August 2017
that “Plaintiffs would have to sue [Defendants] and only then if the Court ordered it
would they do something.” Plaintiffs further averred that because of Defendants’ faulty
construction and subsequent refusal to remedy the issues with the home, the home had
been categorized as a “total loss” and would have to be “torn down, the grounds treated,
and then it must be rebuilt in accordance with all required codes and with all new
materials.”
In addition to alleging injury to their real property, Plaintiffs alleged that
Defendants breached their contract with Plaintiffs, including any express or implied
warranties contained therein, not only because of Defendants’ alleged negligent
construction practices but also because of Defendants’ alleged acts of “abandoning”
Plaintiffs after the sale and refusing to honor Plaintiffs’ warranty claims. Plaintiffs
claimed that Defendants “made promises they never intended to keep” and declined to
investigate Plaintiffs’ claims or make repairs pursuant to Plaintiffs’ one-year home
warranty.1 Based on our review of the legal basis for Plaintiffs’ claims, we conclude that
Plaintiffs clearly alleged alternate claims sounding in breach of contract.
With regard to the type of injuries for which damages were sought, in addition to
damages for injury to their property, Plaintiffs asserted that they were entitled to damages
1
Plaintiffs attached a copy of their sales contract as an exhibit to their complaint. This contract provides
that the seller, JMB, was providing to the buyer, Mr. Simpkins, a “2/10 warranty.” However, the contract
does not provide any further explanation concerning this warranty or its terms. We note that “exhibits
attached to the complaint whose authenticity is unquestioned” may be considered by the trial court
without converting the Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss to a Tennessee
Rule of Civil Procedure 56 motion for summary judgment. Felker v. Felker, No. W2019-01925-COA-
R3-CV, 2021 WL 3507745, at *4 (Tenn. Ct. App. Aug. 10, 2021).
- 19 -
for monetary losses, including a refund of the purchase price of the home, moving
expenses, temporary housing costs, storage costs, medical expenses, loss of revenue from
their home-based business, diminution in value of the home, and other losses. As this
Court has previously stated, “Tennessee law allows recovery of all damages which are
the normal and foreseeable result of the breach of a contract.” Bush v. Cathey, 598
S.W.2d 777, 783 (Tenn. Ct. App. 1979).2 Such recovery can, in proper circumstances,
include such things as temporary housing and moving costs. See id. Moreover, generally
speaking, the cost of repair and diminution in value are also remedies that may be granted
due to a finding of breach of contract in appropriate circumstances. See, e.g., Wilkes v.
Shaw Enters., LLC, No. M2006-01014-COA-R3-CV, 2008 WL 695882, at *10 (Tenn.
Ct. App. Mar. 14, 2008). Therefore, predicated on the legal basis asserted for Plaintiffs’
claims and the type of injuries for which damages were sought, we conclude that the trial
court erroneously found that the gravamen of Plaintiffs’ breach of contract claims was
actually for damage to real property in accordance with Kirby Farms. As such, Plaintiffs’
breach of contract claims, including claims asserting breach of express or implied
warranty, were subject to the six-year statute of limitations codified in Tennessee Code
Annotated § 28-3-109, and the trial court erred in dismissing those claims based on
expiration of the three-year statute of limitations found in Tennessee Code Annotated §
28-3-105.3 We will now turn to Plaintiffs’ issues concerning whether the trial court
should have tolled the accrual of any applicable three-year statute of limitations.
V. Discovery Rule
Plaintiffs contend that the trial court erred by declining to determine that the
accrual of the applicable statute of limitations was tolled by application of the discovery
rule. As this Court has previously explained concerning such doctrine:
In general, the inquiry of when a plaintiff knew of or should have
discovered a cause of action is a question of fact not properly decided on
summary judgment. See City State Bank v. Dean Witter Reynolds, Inc., 948
2
We note, however, that the “purpose of assessing damages in breach of contract cases is to place the
plaintiff as nearly as possible in the same position she would have been in had the contract been
performed, but the nonbreaching party is not to be put in any better position by recovery of damages for
the breach of the contract than he would have been if the contract had been fully performed.” Lamons v.
Chamberlain, 909 S.W.2d 795, 801 (Tenn. Ct. App. 1993).
3
In their appellate brief, Plaintiffs repeatedly request that this Court award them an immediate or default
judgment. This we cannot do. Appellate courts are courts “of appeals and errors,” “limited in authority
to the adjudication of issues that are presented and decided in the trial courts.” Dorrier v. Dark, 537
S.W.2d 888, 890 (Tenn. 1976). Although due process generally requires that parties receive “a fair trial
in a fair tribunal,” see State v. White, 362 S.W.3d 559, 566 (Tenn. 2012), such trial must be conducted by
a trial court. Moreover, Plaintiffs are not entitled to a default judgment in this matter because Defendants
filed a motion to dismiss in response to Plaintiff’s complaint, which means that they did not “fail[] to
plead or otherwise defend” as required by Tennessee Rule of Civil Procedure 55.01.
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S.W.2d 729, 735 (Tenn. App. 1996). If the facts, however, are not in
dispute and clearly show that a cause of action has accrued and that the
statute of limitations has run, a summary judgment may be entered.
“A defense predicated on the statute of limitations triggers the
consideration of three components—the length of the limitations period, the
accrual of the cause of action, and the applicability of any relevant tolling
doctrines. All of these elements are inter-related and, therefore, should not
be considered in isolation.” Redwing v. Catholic Bishop for Diocese of
Memphis, 363 S.W.3d 436, 456 (Tenn. 2012). While the burden of proof is
upon the party asserting the bar of the statute of limitations to show the bar,
when that showing is made, the burden shifts to the other party to show an
exception. Id.***
Under the discovery rule, the statute of limitations will only begin to
run when the plaintiff has actual knowledge of the claim, or when the
plaintiff has actual knowledge of facts sufficient to put a reasonable person
on notice that she has suffered an injury as a result of wrongful conduct.
For the purposes of both the discovery rule and the doctrine of fraudulent
concealment, whether a plaintiff exercised reasonable care and diligence in
discovering her injury is usually a fact question for the trier of fact to
determine.
Coffey v. Coffey, 578 S.W.3d 10, 21-22 (Tenn. Ct. App. 2018).
As our Supreme Court has further explained concerning the discovery rule in
Tennessee:
In 1974, this Court recognized and adopted the discovery rule in response
to the “harsh and oppressive” results of the traditional accrual rule in
circumstances in which the injured party was unaware of the injury.
Teeters v. Currey, 518 S.W.2d [512,] 516 [(Tenn. 1974)]. The Court,
expressly limiting its decision to surgical malpractice cases, held that “the
cause of action accrues and the statute of limitations commences to run
when the patient discovers, or in the exercise of reasonable care and
diligence for his own health and welfare, should have discovered the
resulting injury.” Teeters v. Currey, 518 S.W.2d at 517. In his concurring
opinion, Justice Harbison noted that “[i]n the vast majority of personal
injury cases . . . the date of the injury and the date of discovery are
simultaneous.” Teeters v. Currey, 518 S.W.2d at 518 (Harbison, J.,
concurring); see also Cada v. Baxter Healthcare Corp., 920 F.2d at 450.
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The Court later expanded the application of the discovery rule to
many other injuries to persons or property. See McCroskey v. Bryant Air
Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975) (holding that “in tort
actions . . . the cause of action accrues . . . when the injury occurs or is
discovered, or when in the exercise of reasonable care and diligence, it
should have been discovered.”); see also Justin N. Joy, Comment, Civil
Procedure—Pero’s Steak & Spaghetti House v. Lee: Tennessee Declines to
Extend the Discovery Rule to Claims of Converted Negotiable Instruments,
34 U. Mem. L. Rev. 475, 487 & n.63 (2004) (cataloging the causes of
action to which the discovery rule applies). The Court has also declined to
apply the discovery rule to certain types of claims. Pero’s Steak &
Spaghetti House v. Lee, 90 S.W.3d [614,] 624 [(Tenn. 2002)] (declining to
apply the discovery rule in cases involving the conversion of negotiable
instruments).
Following our decision in Teeters v. Currey, this Court refined the
discovery rule to make clear that it included not only the discovery of the
injury but also the discovery of the source of the injury. Sherrill v. Souder,
325 S.W.3d 584, 595 (Tenn. 2010) (holding that the cause of action accrues
when the plaintiff discovers both the injury and the “identity of the person
or persons whose wrongful conduct caused the injury”); John Kohl & Co. v.
Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (holding that the
cause of action accrues when the plaintiff knows or should know that it
sustained an injury “as a result of wrongful . . . conduct by the defendant”);
Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995) (holding that “a
prerequisite to the running of the statute of limitations is [the] plaintiff’s
reasonable knowledge of the injury, its cause and origin”); Foster v. Harris,
633 S.W.2d 304, 305 (Tenn. 1982) (holding that “no judicial remedy [is]
available to [a] plaintiff until he [or she] discover[s], or reasonably should
have discovered, (1) the occasion, the manner and means by which a breach
of duty occurred that produced his [or her] injury; and (2) the identity of the
defendant who breached the duty.”).
The Court also made it clear that the discovery rule does not delay
the accrual of a cause of action and the commencement of the statute of
limitations until the plaintiff knows the full extent of the damages, B & B
Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 849
(Tenn. 2010); Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996) (holding
that the plaintiff cannot delay filing suit “until all injurious effects or
consequences of the actionable wrong are fully known”), or until the
plaintiff knows the specific type of legal claim it has, John Kohl & Co. v.
Dearborn & Ewing, 977 S.W.2d at 533; see also Stanbury v. Bacardi, 953
- 22 -
S.W.2d 671, 677 (Tenn. 1997); Wyatt v. A-Best, Co., 910 S.W.2d at 855.
The discovery rule is not intended to permit a plaintiff to delay filing suit
until the discovery of all the facts that affect the merits of his or her claim.
Mills v. Booth, 344 S.W.3d 922, 929 (Tenn. Ct. App. 2010) (quoting Burk
v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct. App. 2006)).
Under the current discovery rule, a cause of action accrues and the
statute of limitations begins to run not only when the plaintiff has actual
knowledge of a claim, but also when the plaintiff has actual knowledge of
“facts sufficient to put a reasonable person on notice that he [or she] has
suffered an injury as a result of wrongful conduct.” Carvell v. Bottoms, 900
S.W.2d 23, 29 (Tenn. 1995) (quoting Roe v. Jefferson, 875 S.W.2d 653,
657 (Tenn. 1994)). This latter circumstance is variously referred to as
“constructive notice” or “inquiry notice.” Quoting the Iowa Supreme
Court, we have explained that inquiry notice “charges a plaintiff with
knowledge of those facts that a reasonable investigation would have
disclosed. . . . [O]nce a plaintiff gains information sufficient to alert a
reasonable person of the need to investigate ‘the injury,’ the limitation
period begins to run.” Sherrill v. Souder, 325 S.W.3d at 593 n.7 (quoting
Rathje v. Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008)); see also
Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (defining inquiry notice
as the “notice which a plaintiff would have possessed after due
investigation”).
Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 458-59 (Tenn.
2012) (footnotes omitted).
In the instant action, the trial court found that the discovery rule would not serve to
toll accrual of the statute of limitations due to the factual allegations contained in
Plaintiffs’ complaint. Based upon our thorough review of the complaint, we agree.
In their complaint, Plaintiffs averred that they were shown mold in the crawl space
of the home by Defendants’ agent on August 3, 2017, the day before Plaintiffs were
scheduled to purchase the home. Plaintiffs also stated that they subsequently sent letters
to Defendants in August 2017, September 2017, and November 2017, notifying
Defendants that “microbial issues were present and causing deterioration in multiple
areas of the property.” Plaintiffs further claimed that they informed Defendants in these
letters of the numerous health issues Plaintiffs had begun to experience, as demonstrated
by the copies of the letters attached to Plaintiffs’ complaint. In the letters, Plaintiffs also
detailed their observations of mold on the walls, ceilings, and flooring within the home;
moisture issues; spongy floors; and the smell of mold inside the house.
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Presuming all of these factual allegations to be true, as we must when reviewing
the grant of a motion to dismiss, see Webb, 346 S.W.3d at 426, we agree with the trial
court’s determination that Plaintiffs could not rely on the discovery rule to toll the statute
of limitations herein. The facts alleged in the complaint clearly demonstrated that
Plaintiffs’ cause of action accrued well before December 30, 2017; however, Plaintiffs
did not file their complaint until December 30, 2020, more than three years following
accrual. Based on the factual averments in their complaint, there can be no question that
Plaintiffs possessed “actual knowledge of facts sufficient to put a reasonable person on
notice that [they had] suffered an injury as a result of wrongful conduct” by Defendants
in August, September, and November 2017. See Coffey, 578 S.W.3d at 21-22. As such,
the trial court correctly concluded that the discovery rule did not operate to toll the statute
of limitations herein.
VI. Tolling Pursuant to Tennessee Code Annotated § 66-36-103
Plaintiffs also assert that the statute of limitations should have been tolled pursuant
to Tennessee Code Annotated § 66-36-103 (Supp. 2021), which provides in pertinent
part:
(a) In actions brought against a prime contractor, remote contractor, or
design professional related to an alleged construction defect, the
claimant shall, before filing an action, serve written notice of claim
on the prime contractor, remote contractor, or design professional, as
applicable. The claimant shall endeavor to serve the notice of claim
within fifteen (15) days after discovery of an alleged defect, or as
required by contract. Unless otherwise prohibited by contract, the
failure to serve notice of claim within fifteen (15) days does not bar
the filing of an action, subject to § 66-36-102.
***
(l) A claimant’s written notice of claim under subsection (a) tolls the
applicable statute of limitations until the later of:
(1) One hundred eighty (180) days after the prime contractor,
remote contractor, or design professional receives the notice;
or
(2) Ninety (90) days after the end of the correction or repair
period stated in the offer, if the claimant has accepted the
offer. By stipulation of the parties, the period may be
extended and the statute of limitations is tolled during the
extension.
- 24 -
Tennessee Code Annotated § 66-36-101 (Supp. 2021), the definitional section applicable
to the above statute, provides in pertinent part:
As used in this chapter:
(1) “Action” means any civil action or binding dispute resolution
proceeding for damages or indemnity asserting a claim for damage
to or loss of commercial property caused by an alleged construction
defect, but does not include any civil action or arbitration proceeding
asserting a claim for alleged personal injuries arising out of an
alleged construction defect;
(2) “Claimant” means an owner, including a subsequent purchaser,
tenant, or association, who asserts a claim against a prime contractor,
remote contractor, or design professional concerning a construction
defect;
(3) “Commercial property” means all property that is not residential
property[.]
(Emphasis added.)
The trial court herein determined that the tolling provisions contained in
Tennessee Code Annotated § 66-36-103 were inapplicable to the case at bar because
Plaintiffs’ property is residential rather than commercial. We agree. As this Court has
previously explained concerning the application of Tennessee Code Annotated § 66-36-
101, et seq.:
The term ‘action’ as used in Tenn. Code Ann. § 66-36-103 is defined in
Tenn. Code Ann. § 66-36-101 as follows:
(1) “Action” means any civil action for damages or
indemnity asserting a claim for damage to or loss of
commercial property caused by an alleged construction
defect, but does not include any civil action or arbitration
proceeding asserting a claim for alleged personal injuries
arising out of an alleged construction defect;
Tenn. Code Ann. § 66-36-101(1) (2004) (emphasis added). Commercial
property is defined as “all property which is not residential property.
Residential property is property upon which a dwelling or improvement is
constructed or to be constructed consisting of one dwelling unit intended as
- 25 -
a residence of a person or family.” Tenn. Code Ann. § 66-36-101(3)
(2004).
The language of the statute is clear and unambiguous. It requires a
claimant to provide notice prior to filing an action “for damage to or loss of
commercial property . . . ,” not residential property. Tenn. Code Ann. § 66-
36-101(1) (2004) (emphasis added). As the statute is clear and
unambiguous, we apply its plain meaning. See Shelby County Health Care
Corp. [v. Nationwide Mut. Ins. Corp.], 325 S.W.3d [88,] 92 [(Tenn. 2010)].
In the case now before us on appeal, the Trial Court specifically
found that the Contract was for the construction of a residential garage.
The evidence in the record does not preponderate against this finding. As
Defendant’s counterclaim is an action for damage to or loss of residential
property, not commercial property, Defendant was not required to comply
with Tenn. Code Ann. § 66-36-101 et seq.
Bates v. Benedetti, No. E2010-01379-COA-R3-CV, 2011 WL 978195, at *5-6 (Tenn. Ct.
App. Mar. 21, 2011). Similarly, in this matter, it is undisputed that Plaintiffs’ claims
relate to residential property rather than commercial property. Therefore, the provisions
of Tennessee Code Annotated § 66-36-101, et seq., are inapplicable.
Plaintiffs argue that Tennessee Code Annotated § 66-36-103 has been applied in
residential settings, relying on Greeter Constr. Co. v. Tice, 11 S.W.3d 907 (Tenn. Ct.
App. 1999); Lavy v. Carroll, No. M2006-00805-COA-R3-CV, 2007 WL 4553016 (Tenn.
Ct. App. Dec. 26, 2007); and Custom Built Homes by Ed Harris v. McNamara, No.
M2004-02703-COA-R3-CV, 2006 WL 3613583 (Tenn. Ct. App. Dec. 11, 2006). We
determine, however, that Plaintiffs’ reliance upon these cases is misplaced. In each of
these cases, this Court discussed the general principle of providing notice of a breach of
contract and the opportunity to cure before termination of the contract; none of these
cases contain any discussion or application of Tennessee Code Annotated § 66-36-101, et
seq. See Greeter, 11 S.W.3d at 910; Lavy, 2007 WL 4553016, at *3; Custom Built
Homes, 2006 WL 3613583, at *5. Accordingly, this argument is unavailing.
VII. Fraudulent Concealment
Plaintiffs additionally assert that the trial court erred by declining to determine that
the accrual of the applicable statute of limitations was tolled by reason of the doctrine of
fraudulent concealment. In their complaint, Plaintiffs averred that Defendants had told
them on “the day of the Final Walkthrough” before closing, which undisputedly occurred
in August 2017, that the utility penetrations in the crawl space had been sealed with
foam. Plaintiffs claimed, however, that it was not until January 17, 2018, when they
received the inspection report from Middle Tennessee Mold Remediation (“mold
- 26 -
inspection”), that they learned this statement by Defendants was untrue. According to
Plaintiffs, the mold inspection report revealed for the first time that Defendants had
falsely represented that the utility penetrations were sealed. Plaintiffs maintained that
this failure to seal the utility penetrations contributed to the moisture and mold problems
in the home.
As our Supreme Court has explained concerning the fraudulent concealment
doctrine:
For over a century now, Tennessee’s courts have also held that the
doctrine of fraudulent concealment will toll the running of a statute of
limitations. This doctrine is one of the oldest exceptions to the statute of
limitations. While the doctrine of fraudulent concealment shares many of
the attributes of the doctrine of equitable estoppel, Tennessee’s courts, like
most courts, have recognized it as a free-standing doctrine.
As it currently exists in Tennessee, the doctrine of fraudulent
concealment is aligned with the discovery rule. Under the fraudulent
concealment doctrine, the statute of limitations is tolled when “the
defendant has taken steps to prevent the plaintiff from discovering he [or
she] was injured.” Fahrner v. SW Mfg., Inc., 48 S.W.3d [141,] 146 [(Tenn.
2001)].
***
A claim of fraudulent concealment to toll the running of a statute of
limitations contains four elements. The plaintiff invoking the fraudulent
concealment doctrine must allege and prove: (1) that the defendant
affirmatively concealed the plaintiff’s injury or the identity of the
wrongdoer or failed to disclose material facts regarding the injury or the
wrongdoer despite a duty to do so; (2) that the plaintiff could not have
discovered the injury or the identity of the wrongdoer despite reasonable
care and diligence; (3) that the defendant knew that the plaintiff had been
injured and the identity of the wrongdoer; and (4) that the defendant
concealed material information from the plaintiff by “‘withholding
information or making use of some device to mislead’ the plaintiff in order
to exclude suspicion or prevent inquiry.”
Plaintiffs asserting the doctrine of fraudulent concealment to toll the
running of a statute of limitations must demonstrate that they exercised
reasonable care and diligence in pursuing their claim. See Vance v.
Schulder, 547 S.W.2d 927, 930 (Tenn. 1977); Ray v. Scheibert, 224 Tenn.
99, 104, 450 S.W.2d 578, 580-81 (1969). The statute of limitations is
- 27 -
tolled until the plaintiff discovers or, in the exercise of reasonable
diligence, should have discovered the defendant’s fraudulent concealment
or sufficient facts to put the plaintiff on actual or inquiry notice of his or her
claim. See Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145. At the point when
the plaintiff discovers or should have discovered the defendant’s fraudulent
concealment or sufficient facts to put the plaintiff on actual or inquiry
notice of his or her claim, the original statute of limitations begins to run
anew, and the plaintiff must file his or her claim within the statutory
limitations period.
Redwing, 363 S.W.3d at 461-63 (footnotes and other internal citations omitted).
In analyzing the fraudulent concealment issue, we determine a previous opinion
from this Court to be instructive. See Riccardi v. Carl Little Constr. Co., No. E2020-
00678-COA-R3-CV, 2021 WL 3137251 (Tenn. Ct. App. July 26, 2021). In Riccardi, the
plaintiff homeowner sued the defendant builder, alleging negligent construction of a
residence that was completed in 2007. Id. at *1. The homeowner asserted in his 2014
complaint that the builder had negligently built the home on non-compacted fill dirt,
causing structural damage to the residence from settling of the dirt. Id. According to the
homeowner, the home began to develop cracks in the walls and other issues soon after it
was completed, and the builder repeatedly assured the homeowner over the ensuing years
that the issues were due to “natural settling.” Id. However, in March 2014, the builder
revealed to someone inspecting the home, in the presence of the homeowner, that the fill
dirt beneath the home had not been properly compacted. Id. The homeowner claimed
that this was the first occasion upon which he learned that there was any issue with the
home’s structural integrity, thus rendering his September 2014 complaint timely. Id.The Riccardi trial court granted summary judgment in favor of the builder
premised upon expiration of the applicable statute of limitations. Id. at *3. The trial
court rejected the homeowner’s argument that the statute of limitations should be tolled
due to the builder’s fraudulent concealment of the fact that the fill dirt upon which the
home was constructed was not compacted. Id. Upon the homeowner’s appeal, this Court
vacated the trial court’s grant of summary judgment in favor of the builder, determining
that genuine issues of material fact existed concerning when the homeowner’s action
accrued and whether the doctrine of fraudulent concealment would apply to toll the
statute of limitations. Id. at * 10.
Concerning application of the fraudulent concealment doctrine, the Riccardi Court
determined that the homeowner had presented proof that the home was built on fill dirt
that was not properly compacted and that this was a cause of the “excessive settlement
problems” with the home. Id. The court noted that (1) the builder testified that he was on
the job site daily during the home’s construction; (2) the builder knew that the fill dirt
beneath the home was not properly compacted, (3) the builder admitted this fact to a third
- 28 -
party at a later date and in the presence of the homeowner, (4) this fact would not have
been readily observable or discoverable by the homeowner, and (5) the trier of fact could
reasonably conclude from the evidence that the builder knew his assurances to the
homeowner regarding “natural settling” were untrue. Id. This Court further noted that
questions concerning fraud or fraudulent concealment were fact-intensive, typically
presenting issues for the trier of fact that were inappropriate for summary disposition. Id.
at *9.
Similarly, in this matter, Plaintiffs averred in their complaint that they were
explicitly told by Tony Maher and JMB’s project manager in August 2017 that the utility
penetrations in the crawl space had been sealed with foam. Plaintiffs further averred that
they learned on January 17, 2018, when they received the mold inspection report, that
this had not been done. According to Plaintiffs, this was the first time they had
knowledge of the fact that Defendants had falsely represented that the utility penetrations
beneath the home were sealed. Plaintiffs also asserted that this failure to seal the utility
penetrations contributed to the moisture and mold problems in the home.
We reiterate that when reviewing the trial court’s grant of a motion to dismiss, this
Court must review “the trial court’s legal conclusions regarding the adequacy of the
complaint de novo.” Webb, 346 S.W.3d at 426. In doing so, this Court should presume
that all factual allegations contained in the complaint are true and give Plaintiffs the
benefit of all reasonable inferences. Id. This Court should only affirm the grant of a
motion to dismiss when it appears that the “plaintiff can prove no set of facts in support
of the claim that would entitle the plaintiff to relief.” Id. (citing Crews v. Buckman Labs.
Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)).
Accepting the allegations in Plaintiffs’ complaint as true, we determine that
Plaintiffs’ factual allegations have satisfied the following elements required to
demonstrate fraudulent concealment: (1) Defendants affirmatively concealed and/or
failed to disclose material facts regarding a cause of the injury to Plaintiffs’ property
despite a duty to do so; (2) Defendants knew that Plaintiffs had been injured and the
identity of the wrongdoer; and (3) Defendants concealed material information from
Plaintiffs by “‘withholding information or making use of some device to mislead’ the
plaintiff in order to exclude suspicion or prevent inquiry.” See Redwing, 363 S.W.3d at
463. Moreover, “[w]hether the plaintiff exercised reasonable care and diligence in
discovering the injury or wrong” is typically a fact question for the trier of fact to
determine. Wyatt v. A-Best Co., 910 S.W.2d 851, 854 (Tenn. 1995).
We conclude that a trier of fact could determine that Plaintiffs, in the exercise of
reasonable care and diligence, could not have discovered this potential cause of their
injury until January 2018 due to Defendants’ attempts to conceal this cause. If so, the
statute of limitations would not have begun to run until that date, rendering Plaintiffs’
claims subject to the three-year statute of limitations timely filed.
- 29 -
Based on the facts alleged by Plaintiffs in their complaint, we further conclude that
it is not clear that Plaintiffs can prove no set of facts in support of their claim that would
entitle them to relief. See Webb, 346 S.W.3d at 426. Ergo, we determine that the trial
court erred by granting Defendants’ motion to dismiss with respect to Plaintiffs’ claims
concerning injury to their property allegedly caused by Defendants’ failure to seal the
utility penetrations beneath the home, which were subject to the statute of limitations
contained in Tennessee Code Annotated § 28-3-105 but which were allegedly
fraudulently concealed by Defendants. We therefore vacate that portion of the trial
court’s judgment and remand those claims to the trial court for further disposition.
VIII. Applicability of Tennessee Code Annotated § 39-14-154
Plaintiffs also urge that the trial court erred by failing to specifically rule on their
claim brought pursuant to Tennessee Code Annotated § 39-14-154 (2018), which
provides in pertinent part:
(a) For purposes of this section, unless the context otherwise requires:
***
(5) “New home contractor” means any person who offers
or provides new home construction services as a
general contractor or a subcontractor, including, but
not limited to, an architect or engineer;
(6) “New home construction” means the erection,
installation, design work, engineering work, permitting
through a governmental entity, architectural design,
obtaining construction financing, or construction of a
dwelling on a fixed foundation on land which is owned
or purchased by a home buyer;
(7) “New home construction contract” means a contractual
agreement, written or oral, between a new home
contractor and a home buyer whereby the new home
contractor agrees to provide new home construction
services in exchange for tender of money or other
consideration of value by a home buyer or by any
lending institution on behalf of the home buyer to a
new home contractor as part of a new home
construction contract;
- 30 -
***
(b) It is an offense for a new home construction contractor or home
improvement services provider with intent to defraud to:
(1)(A) Fail to refund amounts paid under a new home
construction contract or a contract for home
improvement services within ten (10) days of:
(i) The acceptance of a written request for a refund
either hand delivered or mailed certified mail
return receipt attached;
(ii) The refusal to accept the certified mail sent to
the last known address of the new home
contractor or home improvement services
provider by the home buyer or residential
owner; or
(iii) The return of the certified mail to the home
buyer or residential owner indicating that the
addressee is unknown at the address or a similar
designation if the provider failed to provide to
the home buyer, residential owner, or the
United States postal service a correct current or
forwarding address;
(B) A violation of subdivision (b)(1)(A) is an offense only
if:
(i) No substantial portion of the new home
construction or home improvement services
work has been performed at the time of the
request;
(ii) More than ninety (90) days have elapsed since
the starting date of the new home construction
contract or contract for home improvement
services; and
(iii) A copy of the written request for a refund was
sent by the home buyer or residential owner to
- 31 -
the consumer protection division of the office of
the attorney general;
(2) Deviate from or disregard plans or specifications in
any material respect that are contained in a new home
construction contract or contract for home
improvement services; provided, that the home buyer
or residential owner did not provide written consent
for the new home contractor or home improvement
services provider to deviate from or disregard plans or
specifications in the contract and such deviation or
disregard caused substantial damage to the home buyer
or residential owner’s property in that the value of the
new construction was less than the value had it been
built in accordance with the plan and contract. Such
deviation includes, but is not limited to:
(A) The amount billed for the new home
construction contract or contract for home
improvement services is substantially greater
than the amount quoted in the contract; or
(B) The materials used in the project are of a
substandard quality but the home buyer or
residential owner was charged for higher quality
materials.
(c)(1) A violation of subsection (b) is punishable as theft pursuant to § 39-
14-105. Value for a violation of subsection (b), shall be determined
by the monetary amount of the new home construction contract or
contract for home improvement services that is paid, minus the value
of any work performed, plus the cost to repair any damage to the
home buyer or residential owner’s property caused by the new home
contractor or home improvement services provider.
***
(4) In addition, such a violation shall be construed to constitute an unfair
or deceptive act or practice affecting the conduct of trade or
commerce under the Tennessee Consumer Protection Act of 1977,
compiled in title 47, chapter 18, and as such, the private right of
action remedy under that act shall be available to any person who
suffers an ascertainable loss of money or property, real, personal, or
- 32 -
mixed, or any other article, commodity, or thing of value wherever
situated as a result of such violation.
(Emphasis added.)
Plaintiffs contend that the trial court erred in failing to consider their claim for
damages brought pursuant to Tennessee Code Annotated § 39-14-154. However,
numerous issues exist with respect to Plaintiffs’ reliance upon this statute as a means of
recovery. First and foremost, we note that this statute appears in the section of the Code
dealing with criminal offenses and that it primarily prescribes a criminal penalty.
Second, to the extent that Plaintiffs appear to seek recovery under Tennessee Code
Annotated § 39-14-154(b)(1)(A), the statute contains several elements that must be
proven in order to establish a violation of its terms, including not only a request for
refund, as Plaintiffs contend, but also existence of all three factors presented in
subsection (b)(1)(B). As our Supreme Court has explained, “statutory phrases separated
by the word ‘and’ are usually to be interpreted in the conjunctive.” Stewart v. State, 33
S.W.3d 785, 792 (Tenn. 2000) (citing Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t
of Nashville, 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990) (stating that the word “‘and’ is
a conjunctive article indicating that the portions of the sentence it connects should be
construed together”)).
Finally, assuming, arguendo, that Plaintiffs were able to prove all of the required
elements to establish a violation of Tennessee Code Annotated § 39-14-154, the only
private right of action provided to a plaintiff alleging a violation would be pursuant to the
Tennessee Consumer Protection Act. As the trial court correctly concluded, Plaintiffs’
claims based upon the Tennessee Consumer Protection Act were subject to a one-year
statute of limitations and were, accordingly, untimely. See Tenn. Code Ann. § 47-18-110(2013). We therefore determine that this issue is without merit.
IX. Applicability of Tennessee Code Annotated § 47-18-1402
Plaintiffs assert that the trial court erred in declining to allow their warranty claim,
brought pursuant to Tennessee Code Annotated § 47-18-1402, to proceed. This statutory
section is known as the Tennessee Consumer Protection Warranty Extension Act
(“TCPWEA”), which specifically provides that it applies to any “written warranty or
service contract purchased in this state on or after July 1, 1989, and in effect when there
is a failure of the product under such written warranty or service contract[.]” Tenn. Code
Ann. § 47-18-1402 (2013). The statute provides that the warranty shall be extended by
the “number of days the consumer is deprived of the use of the product by reason of the
product being in repair; plus” “[t]wo (2) additional working days.” Id.The trial court determined that Plaintiffs could not state a claim pursuant to
Tennessee Code Annotated § 47-18-1402 because the statute, by its express terms,
- 33 -
applied to consumer products rather than homes. We agree, relying upon well-settled
Supreme Court precedent, which provides as follows:
When construing a statute, this Court’s role is “‘to ascertain and give effect
to the legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope.’” Houghton v. Aramark Educ. Res.,
Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens v. State, 908
S.W.2d 923, 926 (Tenn.1995)). Legislative intent is determined “from the
natural and ordinary meaning of the statutory language within the context
of the entire statute without any forced or subtle construction that would
extend or limit the statute’s meaning.” State v. Flemming, 19 S.W.3d 195,
197 (Tenn. 2000). “When the statutory language is clear and unambiguous,
we apply the plain language in its normal and accepted use.” Boarman v.
Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003).
Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004).
By its clear language, Tennessee Code Annotated § 47-18-1402 applies to a
purchased “written warranty or service contract” applicable to a “product.” As the trial
court noted, the definition of a “product” typically envisions “something that is
distributed commercially for use or consumption.” See BLACK’S LAW DICTIONARY 1328
(9th ed. 2009). Accordingly, a product usually involves an item of tangible personal
property rather than real property. See, e.g., Tenn. Code Ann. § 29-28-102(5) (2012)
(provision in products liability statute defining a product as “any tangible object or goods
produced”). Therefore, as the trial court concluded, Plaintiffs have failed to demonstrate
that Tennessee Code Annotated § 47-18-1402 has any applicability to their claims in the
case at bar.4
Plaintiffs rely upon our Supreme Court’s opinion in Dixon v. Mountain City
Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982), as support for their postulate that a
residential home can be considered a “product.” In Dixon, the High Court cited an earlier
unreported decision of this Court that had purportedly suggested such a conclusion as a
means of “circumvent[ing] the doctrine of caveat emptor” as it served to negate an
implied warranty concerning the construction of a home. Id. at 540. However, our High
Court proceeded to state that it “disapprove[d] of the adoption of circumvention
theories,” choosing instead to adopt an implied warranty of good workmanship in a
construction contract that did not explicitly provide such a warranty. Id. at 541-542. As
such, Dixon does not support Plaintiffs’ characterization of a home as a “product.”
4
We note that in this case, Plaintiffs purchased the home and the parcel of real property upon which it
was constructed from Defendants. We have not been asked to consider and therefore make no
determination concerning whether a home contracted to be built upon land already owned by a plaintiff
might be considered a “product.”
- 34 -
X. Due Process
Plaintiffs assert that the trial court violated their right to due process by dismissing
Plaintiffs’ claims and allegedly failing to follow the Tennessee Rules of Civil Procedure.
By way of example, Plaintiffs argue that the trial court violated procedural rules by
dismissing their claims without a trial, allowing Defendants extra time to respond to
Plaintiffs’ March 15, 2021 amended emergency motion, and failing to conduct an
additional hearing thereafter.
As our High Court has elucidated:
Due process, at its most basic level, “mean[s] fundamental fairness
and substantial justice.” Vaughn v. State, 3 Tenn. Crim. App. 54, 456
S.W.2d 879, 883 (1970). Due process acts as a constraint on “both the
procedures used by the government and the substance of legislation
interfering with personal liberties.” 2 Chester James Antieau & William J.
Rich, Modern Constitutional Law § 40.00, at 558 (2d ed. 1997) []. As to
the first constraint, one of the most basic due process requirements “is a fair
trial in a fair tribunal.” 6A Tenn. Jur. Constitutional Law § 77.
State v. White, 362 S.W.3d 559, 566 (Tenn. 2012). Moreover, “procedural due process
ensures that litigants are ‘given an opportunity to have their legal claims heard at a
meaningful time and in a meaningful manner.’” In re Walwyn, 531 S.W.3d 131, 138
(Tenn. 2017) (quoting Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)).
However, as this Court has also previously explained:
Procedural due process . . . does not prevent deprivations of “life,
liberty, or property” but instead it simply “requires state and local
governments to employ fair procedures when they deprive persons of a
constitutionally protected interest in ‘life liberty, or property.’” Cheatham
County v. Cheatham County Bd. of Zoning Appeals, No. M2012-00930-
COA-R3-CV, 2012 WL 5993757, at *3 (Tenn. Ct. App. Nov. 30, 2012)
(quoting Parks Props. v. Maury County, 70 S.W.3d 735, 743 (Tenn. Ct.
App. 2001)). . . . It is clear, however, “that a state may erect reasonable
procedural requirements for triggering the right to an adjudication, such as
statutes of limitations, and a state may terminate a claim for failure to
comply with a reasonable procedural rule without violating due process
rights.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).
Webb v. Roberson, No. W2012-01230-COA-R9-CV, 2013 WL 1645713, at *20 (Tenn.
Ct. App. Apr. 17, 2013). “The purpose of the statute of limitations is to avoid
- 35 -
adjudication of stale claims and to give defendants notice to preserve their evidence.”
Gamble v. Hosp. Corp. of Am., 676 S.W.2d 340, 343 (Tenn. Ct. App. 1984).
In the case at bar, Plaintiffs’ claims were dismissed due to expiration of the
applicable statute of limitations. The trial court’s dismissal of Plaintiffs’ claims on such
basis was not violative of Plaintiffs’ due process rights. See Webb v. Roberson, 2013 WL
1645713, at *20. Plaintiffs further contend, however, that the trial court violated their
due process rights by failing to comply with various procedural rules related to other
actions taken by the court.
Plaintiffs insist that the trial court violated the Tennessee Rules of Civil Procedure
by failing to conduct a “new hearing” following the trial court’s April 6, 2021 order
wherein the court acknowledged Plaintiffs’ argument that the court failed to consider
matters stated in Plaintiffs’ amended response to the motion to dismiss, which the court
had not seen at the time of its ruling. In its April 6, 2021 order, the court therefore
directed Defendants to file a response within ten days, at which time the court would
either rule based on the pleadings or set the matter for further hearing. Although the trial
court eventually made a determination concerning Plaintiffs’ motions based on the
written submissions only, such action does not constitute a violation of due process. See
Jerkins v. McKinney, 533 S.W.2d 275, 279 (Tenn. 1976) (explaining that “[o]ral
argument is especially unnecessary when only questions of law are concerned” in a
motion and that “due process is not offended by denial of the opportunity for the
presentation of argument” in such cases).
Plaintiffs similarly argue that the trial court violated the Tennessee Rules of Civil
Procedure by allowing Defendants to file a response to Plaintiffs’ amended response to
the motion to dismiss when Defendants had purportedly failed to do so “within the fifteen
(15) day requirement by the Rules of Civil Procedure and subsequently [Defendants] fell
under the Rule of Civil Procedure 12.08 waiving all rights to a Defense for [Defendants’]
failure to respond to either the March 9 or the March 15, 2021 Motions and
Memorandums of Law[.]” We note, however, that Tennessee Rule of Civil Procedure
12.08 involves the waiver of a legal defense to a claim for failure to present that defense
by motion or answer following filing of the complaint. In their response, Defendants
were not stating additional legal defenses to claims; rather, they were replying to
arguments contained in Plaintiffs’ amended response to the motion to dismiss. Moreover,
Defendants were not required to file a reply to Plaintiffs’ amended response by the
Tennessee Rules of Civil Procedure. The fact that the trial court afforded Defendants an
opportunity to respond to an amended response to the Defendants’ motion is not violative
of any procedural rules or Plaintiffs’ due process rights.
The trial court fully considered and ruled upon Plaintiffs’ arguments contained in
their amended response to the motion to dismiss, as demonstrated by the court’s May 7,
2021 order. As such, Plaintiffs were afforded fundamental fairness and the opportunity
- 36 -
to have their arguments considered. Plaintiffs have demonstrated no deprivation of their
due process rights.
XI. Alleged Trial Court Prejudice
Plaintiffs assert that the trial court exhibited prejudice against Plaintiffs and in
favor of Defendants by providing “latitude for” Defendants and demonstrating “harsh
treatment” toward Plaintiffs. Plaintiffs contend that the trial court acted in a manner that
was violative of Plaintiffs’ constitutional rights during the entire proceedings.
Our review of the trial court’s rulings in this matter reveals no showing of
prejudice for or against either party by the trial court. Moreover, we note that although
Plaintiffs posit in the argument section of their principal brief that the trial court judge
should have recused himself, the record does not demonstrate that Plaintiffs ever filed in
the trial court a motion to recuse the trial court judge pursuant to Tennessee Supreme
Court Rule 10B. Plaintiffs also did not present a specific issue on appeal regarding
recusal of the trial court judge. See Tenn. R. App. P. 13(b) (“Review generally will
extend only to those issues presented for review.”). We therefore determine that
Plaintiffs have effectively waived any issue concerning recusal of the trial court judge at
this juncture. See, e.g., Xcaliber Int’l Ltd., LLC v. Tenn. Dep’t of Revenue, No. M2017-
01918-COA-R3-CV, 2018 WL 4293364, at *17-18 (Tenn. Ct. App. Sept. 10, 2018)
(concluding that the plaintiff had waived a request for reassignment to a different trial
court judge on remand when the plaintiff had not filed a motion for recusal and had failed
to raise the issue in its statement of the issues on appeal).
XII. Temporary Restraining Order
Plaintiffs posit that the trial court erred by failing to enter a temporary restraining
order to prevent Plaintiffs’ home from going into foreclosure in order to “preserve
Plaintiffs’ evidence.” However, Plaintiffs have failed to demonstrate that they properly
applied for the trial court to issue such an order. Tennessee Rule of Civil Procedure 65
sets forth certain requirements for obtaining a temporary restraining order, including the
filing of “an affidavit or a verified complaint clearly show[ing] that immediate and
irreparable injury, loss, or damage will result to the applicant before the adverse party can
be heard in opposition; and” “the applicant’s attorney (or pro se applicant) certifies in
writing efforts made to give notice and the reasons why it should not be required.” Tenn.
R. Civ. P. 65.03. Moreover, Tennessee Rule of Civil Procedure 65.02 states that a
restraining order is “binding upon the parties to the action, their officers, agents and
attorneys; and upon persons in active concert or participation with them who receive
actual notice of the restraining order or injunction by personal service or otherwise.”
Plaintiffs’ mortgage holder is not a party to this action and has not been shown to have
been in active concert with Defendants.
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In addition, Tennessee Code Annotated § 29-23-201 provides in pertinent part:
(a) No judge or chancellor shall grant an injunction to stay the sale of real
estate conveyed by deed of trust or mortgage, with a power of sale,
executed to secure the payment of a loan of money, unless the complainant
gives five (5) days’ notice to the trustee or mortgagee of the time when,
place where, and of the judge or chancellor before whom, the application
for injunction is to be made.
The record does not demonstrate Plaintiffs’ compliance with the requirements of
Tennessee Rule of Civil Procedure 65.03 or Tennessee Code Annotated § 29-23-201. As
such, this issue is without merit.
XIII. Purported Violation of Rules of Professional Conduct
Plaintiffs contend that the trial court erred by failing to conclude that Defendants’
counsel was in violation of Tennessee Supreme Court Rule 8, Rule of Professional
Conduct 1.6, for allegedly neglecting to uphold his duty to ensure that his clients did not
cause financial or physical harm to Plaintiffs. We note, however, that Defendants’
counsel is not a named defendant in this action and that Plaintiffs have asserted no claims
against him individually. For this reason, Plaintiffs’ contention is without merit.
XIV. Remaining Issues
Finally, Plaintiffs raise issues concerning whether the trial court erred by allegedly
“changing” a date of service or by failing to utilize the procedure related to a motion for
summary judgment rather than a motion to dismiss. However, Plaintiffs neglected to
offer support for these issues in the argument section of their brief, failing to state “the
contentions of the appellant[s] with respect to the issues presented, and the reasons
therefor, including the reasons why the contentions require appellate relief, with citations
to the authorities and appropriate references to the record . . . relied on[.]” Tenn. R. App.
P. 27(a)(7)(A). See Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(“The failure of a party to cite to any authority or to construct an argument regarding his
position on appeal constitutes waiver of that issue.”); Childress v. Union Realty Co., 97
S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“[W]hen a party raises an issue in its brief, but
fails to address it in the argument section of the brief, we consider the issue to be
waived.”). Accordingly, these issues are deemed waived.
XV. Conclusion
For the foregoing reasons, we determine that although the trial court properly
applied the three-year statute of limitations to Plaintiffs’ claims of injury to their real
property, the trial court improperly determined that the doctrine of fraudulent
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concealment would not apply to toll the accrual of such limitations period concerning
Plaintiffs’ claims for damages caused by Defendants’ failure to seal the utility
penetrations beneath the home, a fact which allegedly was concealed by Defendants. We
also determine that Plaintiffs stated claims of breach of contract, including breach of any
express or implied warranties provided by the contract, and that the trial court improperly
dismissed these claims based on the incorrect statute of limitations. We therefore vacate
the trial court’s dismissal of the breach of contract and contractual warranty claims, as
well as the claims based on Defendants’ failure to seal the utility penetrations, and we
remand those claims to the trial court for further proceedings consistent with this opinion.
We affirm the remaining portion of the trial court’s judgment in its entirety. Costs on
appeal are assessed to the appellees, John Maher Builders, Inc.; John Maher; and Tony
Maher.
s/ Thomas R. Frierson, II
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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