Jennifer Frank v. Ali Noureddini, Olifate Nouredinni - Concurring ( 1996 )

JENNIFER FRANK )
)
Plaintiff/Appellant, )
) Davidson Circuit
) No. 89-1861-I (III)
VS. )
) Appeal No.
) 01A01-9601-CH-00044
ALI NOUREDDINI and wife, )
OLIFATE NOUREDINNI, )
NATIONAL HOMES, INC., AMERICAN )
REALTY COMPANY, TERRY
STEPHENS, LEE ANN HOFFMAN,
BANC PLUS MORTGAGE
)
)
)
FILED
CORPORATION, EXCELLA MORTGAGE)
August 7, 1996
CORPORATION, SHIRLEY ADKINS, )
ALAN SATURN AND THE U.S.A. )
Cecil W. Crowson
INSURANCE CORPORATION OF NEW )
Appellate Court Clerk
YORK, D/B/A TITLE U.S.A., )
)
Defendants/Appellees. )
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE ROBERT S. BRANDT, CHANCELLOR
Sherrie L. Durham #13224
111 West Division Street
Mt. Juliet, TN 37122
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Fred Cowden #2469
211 Third Avenue North
Nashville, TN 37201
ATTORNEY FOR DEFENDANT/APPELLEE
Cornelius & Collins
C. Bennett Harrison, Jr. #5702
Suite 2700 Nashville City Center
P.O. Box 190695
Nashville, TN 37219-0695
ATTORNEY FOR DEFENDANT/APPELLEE
Michael J. Philbin #2897
One Union Street
P.O. Box 198169
Nashville, TN 37219-8169
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL
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JENNIFER FRANK )
)
Plaintiff/Appellant, )
) Davidson Circuit
) No. 89-1861-I (III)
VS. )
) Appeal No.
) 01A01-9601-CH-00044
ALI NOUREDDINI and wife, )
OLIFATE NOUREDINNI, )
NATIONAL HOMES, INC., AMERICAN )
REALTY COMPANY, TERRY )
STEPHENS, LEE ANN HOFFMAN, )
BANC PLUS MORTGAGE )
CORPORATION, EXCELLA MORTGAGE)
CORPORATION, SHIRLEY ADKINS, )
ALAN SATURN AND THE U.S.A. )
INSURANCE CORPORATION OF NEW )
YORK, D/B/A TITLE U.S.A., )
)
Defendants/Appellees. )
OPINION
The Plaintiff, Jennifer Frank, has appealed from summary judgment in favor of the
Defendants, American Realty Company, Terry Stephens, Lee Ann Hoffman, Shirley Adkins
and Alan Saturn; and from a judgment in favor of Plaintiff and against the Defendant, Ali
Noureddini in the amount of $50,000. Other captioned Defendants are not involved in this
appeal.
On January 18, 1989, a contract for Sale of Real Estate was executed describing the
property and terms of sale. Plaintiff was the designated buyer, and signed her name. The
seller was designed as National Homes, but the seller’s signature was N. Homes, Inc., By Ali
Noureddini, (Pres.). The listing broker was designated as American Realty. Pertinent
provisions of the contract were:
Purchase price $136,000 payable as follows: Buyer to obtain
70% LTV conventional loan. This contract is contingent upon
Buyer’s ability to qualify for a new loan. Buyer agrees to make
said loan application on or before 1/31/89.
Sale will be closed upon loan approval and completion of home
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no later than 3/31/89.
Seller to furnish garage door (illegible) back yard to railroad
ties. Correct staircase to basement, correct water in basement
walls.
On April 3, 1989, a Disclosure/Settlement Statement was signed by Plaintiff and
National Homes, Inc.. It contained the following item:
506 Escrow for landscaping: $1,800.00
The original complaint was filed on July 14, 1989, against the captioned Defendants,
alleging that each was guilty of fraudulent inducement of Plaintiff to enter into the contract
and/or close the sale.
On January 29, 1991, the Trial Court entered summary judgments in favor of Olifate
Noureddini, Shirley Adkins and Alan Saturn.
On the same date, January 29, 1991, Plaintiff filed an amended complaint identical
with the first complaint except for a single paragraph #51:
Defendants Saturn and Noureddini failed to have a 2-10
Home Buyers Warranty issued to the plaintiff at closing
as required by the purchase contract. Although defendant
Saturn was aware of this requirement, he instructed defendant
Ali Noureddini to sign a one year FHA Warranty which
defendant Saturn falsely represented to the plaintiff as the
warranty she had contracted for.
On March 30, 1991, an agreed order dismissed U.S.A. Insurance Corporation of New
York .
On June 13, 1994, American Realty Company, Terry Stevens and Lee Ann Hoffman
were dismissed by summary judgment.
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On January 30, 1995, a non-jury judgment was rendered in favor of Plaintiff and
Noureddini for $50,000. No judgment was rendered in respect to National Homes, Inc.
Plaintiffs’ issues and arguments are presented separately in response to each appellee.
Shirley Adkins
Plaintiff asserts that the summary judgment in favor of Shirley Adkins was in error
because there was evidence from which a jury would be justified in finding her liable. There
is evidence that Ms. Adkins was an appraiser employed by Excella Mortgage Company to
appraise the house in question for purposes of approving a loan to plaintiff secured by a
mortgage on the house. The affidavit of the loan officer of Excella states:
I arranged for Shirley Adkins, an appraiser in town, to
appraise the property for Ms. Frank. Ms. Frank paid for the
appraisal by check.
Jennifer Frank was not knowledgeable about construction
and real estate. That is one reason we hired an appraiser:
to protect the purchaser and the mortgage company. Ms.
Frank often stated that she did not know anything about
building houses, but if the appraiser and everyone did their
job she would be protected. She expressed several times
that she trusted everyone to do their job properly.
Two or three days before the closing was to take place,
I received a telephone call from Jennifer Frank. She stated
that she was extremely concerned over water pooling in
the basement of the house being constructed and requested
that I communicate that to the appraiser before the final
inspection.
I called Shirley Adkins’ office to order a final inspection
and left a message regarding the water in the basement with
the secretary or receptionist who answered the telephone.
I also called Ali Noureddini about the water problem in the
basement.
Ms. Frank compiled a “punch list” of minor finishing items
to be completed or connected. Ms. Frank never mentioned
any major defects. Based on my experience with Ms. Frank,
I believe she would have told me if she knew of serious
construction defects.
According to the final appraisal report, the house was
satisfactorily completed except for minor details such as
landscaping and wallpaper. BancPlus agreed to escrow
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approximately $1,200.00 to complete the landscaping.
The mortgage was approved on that basis.
The evidence is uncontroverted that Ms. Adkins was employed by Excella Mortgage
Company to estimate the value of the property for the purpose of determining whether it was
suitable security for the loan requested by Plaintiff, that she was paid by Excella, and had no
obligation to any person or firm except Excella. The mere fact that Excella told Ms. Adkins
that the Plaintiff had certain concerns regarding the house did not impose upon Ms. Adkins
any obligation to Plaintiff. Also, the mere fact that Excella required Plaintiff to pay for the
appraisal does not obligate Ms. Adkins to Plaintiff. It is common knowledge that an
applicant for a mortgage loan is required to pay for the appraisal as an expense of processing
the application.
Plaintiff cites Tartara v. Palumbo, 224 Tenn. 262, 453 S.W.2d 780 (1970), wherein
the Supreme Court held that a surveyor employed by the seller to survey land for the purpose
of describing the property in the deed of transfer could be held liable for negligence in the
survey. This authority is distinguishable from the present case in which the appraiser had no
cause to believe that her report of the value of the house would be relied upon by the buyer to
her detriment.
No error is found in the summary judgment dismissing Shirley Adkins.
Alan Saturn
Alan Saturn was designated by Excella Mortgage Company to prepare the necessary
documents for closing the sale, to supervise their proper execution and to properly allocate
and disburse the funds provided by Excella. His fee was paid out of the same fund.
Plaintiff asserts that Mr. Saturn failed to cause a 2-10 Warranty to be issued. This
was a type of insurance policy to indemnify Plaintiff from faults in the house which became
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apparent at least 2 years and not more than 10 years after the closing. The evidence is
uncontradicted that Mr. Saturn retained funds to pay for the policy and that he did pay for the
policy. Moveover, none of the complaints asserted in this case arose at least 2 years after
closing. Plaintiff asserts that Mr. Saturn represented to her that the one-year warranty signed
by the builder was a satisfactory substitute for the 2-10 warranty. All of Plaintiff’s present
complaints are during the first year and were covered by the one year warranty. Even though
the 2-10 warranty may have never been received, it was paid for and enforceable as to any
complaints arising 2 years or more after the closing. For this reason, any misrepresentation as
to warranty coverage was irrelevant to the present dispute.
Plaintiff next asserts that Mr. Saturn effected the closing even though there was an
outstanding judgment lien against the property. The evidence is uncontroverted that the title
policy of the Defendant, U.S.A. Insurance Company of New York protects Plaintiff from loss
on account of said lien, that the matter was eventually settled and the said insurance company
was dismissed from this suit by agreed order mentioned above.
Plaintiff complains of various representations made to her by Saturn after the closing,
but the evidence is uncontroverted that the duties of Saturn to Plaintiff were confined to the
closing of the sale and that no actionable representations were made to Plaintiff by Saturn on
the date of closing.
No error is found in the summary judgment dismissing Alan Saturn.
Stevens, Hoffman and American Realty, Inc.
These appellees have filed no brief in this Court. In the Trial Court, they filed an
answer and a motion for summary judgment relying only upon the deposition of Plaintiff and
their supporting brief. The brief is not included in the appellant record. The complaint
alleges:
Mr. Stevens and Ms. Hoffman made material representations to
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Plaintiff that Ali Noureddini/American Homes, Inc. was an excellent
builder with a solid reputation in the community for home building.
The plaintiff at all times relied on the superior knowledge and
expertise of defendants Terry Stevens and Lee Ann Hoffman.
In reality, defendants Stevens and Hoffman’s representations
about the skill and reputation of Noureddini/American Homes, Inc.
were false.
Plaintiff alleges that these defendants knew their representations
about Noureddini/National Homes, Inc. were false at the time
they were made, or, in the alternative, these defendants made
these representations without having made sufficient inquiry and
without sufficient knowledge as to the truth or falsity of their
statements.
During discussions with Terry Stevens and Lee Ann Hoffman,
Mr. Stevens and Ms. Hoffman represented to the plaintiff that
the subject home would be completed no later tan March 31,
1989.
In direct reliance upon the representations of Terry Stevens,
Lee Ann Hoffman, Ali Noureddini and National Homes, Inc.,
the plaintiff entered into a contract for the purchase of the home
at 1232 Reelfoot Circle.
As the completion date for the subject home approached, the
Plaintiff expressed concern to defendants Hoffman and Stevens
as agent for American Realty and National Homes, Inc. that her
home might not be completed in a timely fashion.
Despite the fact that the defendants American Realty, Terry
Stevens, Lee Ann Hoffman, National Homes and Ali Noureddini
knew that the subject home was not complete, each repeatedly
urged the plaintiff to go ahead with closing. More specifically,
these defendants represented to the plaintiff that the home was
ready and suitable for occupancy and that any remaining work
was minor.
The defendants, American Realty, Terry Stevens, Lee Ann
Hoffman, National Homes, Inc., and Ali Noureddini, at all times
material hereto, possess special skill and knowledge regarding
the construction and sale of real estate.
The plaintiff in direct reliance on the representations of
defendants American Realty, Terry Stevens, Ali Noureddini
and National Homes, inc., agreed to proceed with the closing
of the subject property.
The plaintiff last viewed the property the day before closing
and expressed concerns to the defendants Terry Stevens, Lee
Ann Hoffman and Ali Noureddini and employees of the Excella
Mortgage Company about whether the home would be complete
and ready for occupancy by the closing date. These defendants
repeatedly assured plaintiff that everything would be completed
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in the timely and workmanlike manner.
Although the home was not finished, the defendants, Ali
Noureddini, Terry Stevens, Lee Ann Hoffman, and American
Realty and Excella Mortgage urged the plaintiff to close on the
home.
The defendants, in order to induce the plaintiff to close,
created a “punch list” of uncompleted items to be corrected
by defendant Noureddini and/or defendant National Homes
immediately following closing. A copy of said punch list
is attached hereto as Exhibit C.
In direct reliance on the representations of Terry Stevens,
Lee Ann Hoffman, American Realty, Ali Noureddini,
National Homes, Inc., Excella Mortgage and Shirley Atkins,
the plaintiff closed the loan papers on the home on April 3,
1989.
The plaintiff asserts that the defendant American Realty,
Inc., Terry Stevens, Lee Ann Hoffman, Excella Mortgage
Corporation, Shirley Adkins, Ali Noureddini, Olifate
Noureddini, National Homes, Inc., and Shirley Adkins,
knew or should have known prior to the closing on the
subject property that no Certificate for Use and Occupancy
had been issued.
The plaintiff alleges that the acts of Ali Noureddini,
individually, and National Homes, Inc., Terry Stevens, Lee
Ann Hoffman, Shirley Adkins, and Alan Saturn constitute
misrepresentation.
The plaintiff, as a direct and proximate result of the
Defendants’ misrepresentations, has sustained severe and
extensive damages.
Plaintiff alleges that the acts of Ali Noureddini, individually,
and NationalHomes, Inc., Terry Stevens, Lee Ann Hoffman,
Shirley Adkins, and Alan Saturn constitute negligent
misrepresentation.
Plaintiff alleges that defendants Ali Noureddini, National
Homes, Inc., Terry Stevens, Lee Ann Hoffman, Alan Saturn
and American Realty, Inc., knew that her home was not ready
for occupancy, knew it had not been approved by the
Metropolitan Codes Administration for Davidson County, and
knew that no use and occupancy letter had been issued. These
defendants also knew that there were substantial code violations
causing the subject home to be unhabitable. Despite this
knowledge, the defendants, and each of them, urged the plaintiff
to close on the subject home, and conspired to conceal the true
state of facts from the plaintiff.
Furthermore, these defendants, and each of them, knew about
the cloud on plaintiff’s title, yet each of them conspired to
conceal this fact from plaintiff and persuaded her to close the
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purchase.
The deposition of Plaintiff consists of two volumes and 418 pages. It has been
reviewed thoroughly. The deposition of Plaintiff shows conclusively that she has no evidence
to support an award of damages against these defendants on any ground alleged in the
complaint.
In summary, Plaintiff contracted with a corporation to buy a house from a corporation
and did close the purchase of the house from the corporation even though it was not
completed to her satisfaction. She says she closed the sale on the advice of her lawyer who
told her she could rely on the defendants to protect her. On such evidence, legal liability of
third parties to the transaction cannot rest.
Plaintiff cites Gray v. Boyle Investment Company, Tenn. App. 1990, 803 S.W.2d 678,
which is distinguishable. In that case the broker received the purchase money from Plaintiffs
and released it to the seller knowing that the holder of a mortgage holder was foreclosing on
the property. There is no showing in the present case of any such assumption of obligation
by the broker or its agents. Moreover, in the cited case, the infirmity in title was not such as
would be apparent to the purchaser and resulted in the loss of the purchase money.
In the present case, Plaintiff knew of the defects in the house when she completed the
transaction. Plaintiffs’ deposition shows that she has no evidence that these defendants had
knowledge contrary to the opinions expressed to her.
Under these circumstances, summary judgment for these defendants was proper.
Moman v. Walden, Tenn. App. 1986, 719 S.W.2d 533, Celotex v. Catrett - U.S. - 106 S Ct.
2548, 91 L. Ed 2d 285 (1986).
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Ali Noureddini
This defendant was the sole stockholder, president and active controller of National
Homes, Inc., from which Plaintiff purchased the house in question. As previously stated, the
corporate seller was not sued in this case, despite its obvious liability as builder and seller of
the house. Plaintiff seeks to impose liability upon the owner of the corporation upon theories
of fraud, deceit, breach of warranty violation of the Tennessee Consumer Protection Act and
mutual mistake of fact.
As to this defendant, the Trial Court did not grant summary judgment, but considered
all the evidence and entered an order stating:
[T]he Court found that the Defendant, Ali Noureddini was
negligent and did not build the house in question in a good
and workman like manner. The Court determined that the
Plaintiff is entitled to recover damages in the amount of
fifty thousand dollars ($50,000.00) from the Defendant
Ali Noureddini.
On appeal, Plaintiff complains that the Trial Court failed to find that this Defendant
deceived and defrauded her and failed to award punitive damages, “liquidated damages” and
attorneys fees. This Defendant filed no brief in this Court.
Plaintiff’s brief cites no evidence of actual fraud in misrepresenting a present fact, but
relies upon statements of Defendant as to what he would do in the future. Such statements
are not generally regarded as a valid basis for an action for fraud and deceit. Fowler Happy
Goodman Family, Tenn. 1978, 575 S.W.2d 496. Young v. Cooper, 30 Tenn. App. 55, 203
S.W.2d 376.
To establish a cause of action for negligent misrepresentation, the statement must be
of a material past or present fact. Statements of opinion or intention, puffing sales talk, or
conjecture or representation of future events are not actionable even though they may later
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prove to be false. McElroy v. Boise, Cascade Corporation, Tenn. App. 1982, 632 S.W.2d
127.
Neither the Plaintiff nor this Defendant questions the correctness of the $50,000
judgment. This Court will therefore not disturb it. However, the record does not support any
increase in the judgment as urged by the Plaintiff.
The judgment of the Trial Court is affirmed. Costs of this appeal are assessed to the
appellant. The cause is remanded to the Trial Court for any necessary further procedures.
AFFIRMED AND REMANDED.
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
___________________________
SAMUEL L. LEWIS, JUDGE
___________________________
BEN H. CANTRELL, JUDGE
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