David Simpkins v. John Maher Builders, Inc.
M2021-00487-COA-R3-CV
| Tenn. Ct. App. | May 4, 2022Background
- David and Sally Simpkins purchased a newly constructed home from John Maher Builders on August 4, 2017 and soon reported mold, moisture, spongy floors, and health problems.
- Plaintiffs sent letters to the builder in Aug–Nov 2017 complaining of microbial issues; they allege being told at final walkthrough the crawlspace utility penetrations were sealed, but a mold-inspection report dated January 17, 2018 revealed they were not.
- Plaintiffs filed a pro se complaint on December 30, 2020 asserting breach of contract, breach of warranty, fraud/fraudulent concealment, negligence, and consumer-protection claims, seeking substantial damages and injunctive relief.
- Defendants moved to dismiss under Tenn. R. Civ. P. 12.02(6) as time-barred by Tenn. Code Ann. § 28-3-105 (three-year limitations for injury to real property); the trial court granted dismissal with prejudice on April 5, 2021.
- On appeal, the Court of Appeals affirmed dismissal of most claims but vacated dismissal of: (a) breach-of-contract and contractual-warranty claims (concluding those are governed by the six-year contract statute), and (b) claims based on the alleged fraudulent concealment about unsealed utility penetrations (finding a factual dispute whether concealment tolled the three-year limitation); those claims were remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable statute for breach-of-contract/warranty claims | Simpkins: contract/warranty claims governed by 6-year statute (§ 28-3-109) | Maher: gravamen is injury to real property → 3-year statute (§ 28-3-105) applies | Court: For each claim determine gravamen; here plaintiffs pleaded alternate breach-of-contract claims for non-repair/abandonment and non-property damages → six-year statute applies; reversal as to those claims |
| Discovery-rule accrual | Simpkins: did not discover true scope/cause until Jan 2018 (mold report) | Maher: plaintiffs had actual/constructive notice in Aug–Nov 2017, so claims accrued then | Court: Complaint shows actual knowledge/notice in 2017; discovery rule does not toll generally; trial court correct on this point |
| Fraudulent concealment re: unsealed utility penetrations | Simpkins: defendants expressly represented penetrations were sealed; mold report in Jan 2018 first revealed falsity → concealment tolled limitations | Maher: plaintiffs had notice in Aug 2017 and were told they would have to sue; no tolling | Court: Allegations suffice to raise fraudulent-concealment tolling as to the specific unsealed-penetrations claim; dismissal was improper and remand required for factfinding |
| Applicability of consumer-warranty and criminal-refund statutes (TCPWEA § 47-18-1402; Tenn. Code § 39-14-154) | Simpkins: warranty-extension statute and new-home-theft statute provide remedies | Maher: statutes do not apply to a residential home or do not provide the claimed private remedy; limitations bar | Court: § 47-18-1402 (warranty-extension) applies to products, not a home; § 39-14-154 primarily criminal and any private remedy would be under TCPA (one-year limit) and untimely; claims rejected/affirmed as untimely or inapplicable |
Key Cases Cited
- Kirby Farms Homeowners Ass'n v. Citicorp, Citibank, N.A., 773 S.W.2d 249 (Tenn. Ct. App. 1989) (applies three-year property-damage statute when gravamen is injury to real property despite contractual labels)
- Benz-Elliott v. Barrett Enters., LP, 456 S.W.3d 140 (Tenn. 2015) (two-step gravamen test: analyze legal basis of each claim then type of injuries sought)
- Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436 (Tenn. 2012) (definition of gravamen as the substantial point/purpose of an action)
- Williams v. Thompson, 443 S.W.2d 447 (Tenn. 1969) (early precedent applying § 28-3-105 to construction-defect claims sounding in contract)
- Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974) (adoption of the discovery rule for accrual of causes of action)