536 S.W.3d 425
Tenn. Ct. App.2016Background
- In May 2013 Kimberly Lapinsky contracted to buy a Sevier County house from Janice and Kevin Cook; Brenda Brewster was the sellers' real estate agent. Plaintiff checked a contractual "Waiver of All Inspections" box and later signed a Buyer’s Final Inspection form at closing stating she accepted the property "in its present condition" and that repairs (if any) were made to her satisfaction.
- The Contract included three specific repair stipulations (trim paint, re-flash bow window for water intrusion, and repair/replace roof shingles). Closing occurred June 14, 2013; plaintiff and her husband (a Michigan licensed general contractor) inspected the property before closing but complained final access was limited shortly before closing.
- After taking possession plaintiff discovered roof leaks and other problems and sued the Cooks, Brewster, and an insurer asserting breach of contract, intentional misrepresentation (fraud), conspiracy, TCPA violations, and related claims.
- Defendants moved for summary judgment supported by affidavits and deposition testimony showing plaintiff voluntarily signed the Final Inspection form, had the opportunity to inspect (and did), and had no direct communications with Brewster about repairs; the Cooks asserted they were homeowners making an isolated sale.
- The trial court granted summary judgment to the Cooks and Brewster, concluding plaintiff forfeited inspection rights by contract, could not reasonably rely for fraud claims where defects were visible and known (including to her contractor-husband), conspiracy and duress claims lacked evidentiary support, and the TCPA did not apply to the Cooks as private sellers. The court denied the Cooks' request for TCPA attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract — did sellers breach repair stipulations? | Lapinsky: repairs required by contract were not completed; she relied on seller/agent representations. | Cooks: Plaintiff signed Final Inspection form accepting property and stating repairs were made to her satisfaction; contract inspection rights were waived/forfeited. | Summary judgment for Cooks — plaintiff is bound by Final Inspection form; contract language unambiguous. |
| Intentional misrepresentation (fraud) — did plaintiff reasonably rely on defendants' representations? | Lapinsky: sellers/agent represented repairs were done; she relied and closed. | Defendants: plaintiff and her contractor-husband observed defects pre-closing and signed acceptance; plaintiff had opportunity/duty to inspect. | Summary judgment for defendants — no reasonable reliance; plaintiff knew or could have discovered defects. |
| TCPA — does Tennessee Consumer Protection Act apply to sellers/agent? | Lapinsky: alleged deceptive acts by sellers and agent. | Cooks: as isolated homeowners sale, TCPA does not apply; Brewster: as agent, would be subject but no deceptive practice proved. | Summary judgment: TCPA claim dismissed as to Cooks (isolated sale); dismissed as to Brewster for lack of deceptive act. |
| Discovery continuance before summary judgment — should plaintiff have been allowed more discovery (insurance depo)? | Lapinsky: needed deposition of insurer rep (prior hail/roof claim) to oppose summary judgment. | Defendants: insurer information about earlier roof claim irrelevant to plaintiff's reliance and contractual acceptance. | Denial affirmed — requested discovery would not have assisted response; trial court did not abuse discretion. |
Key Cases Cited
- Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (standard for de novo appellate review of summary judgment)
- Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) (summary judgment and discovery-continuance principles)
- Quebecor Printing Corp. v. L & B Mfg. Co., 209 S.W.3d 565 (Tenn. Ct. App. 2006) (contract interpretation: unambiguous language controls)
- Hodge v. Craig, 382 S.W.3d 325 (Tenn. 2012) (elements of intentional misrepresentation/fraud)
- Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997) (TCPA does not apply to isolated home sellers)
- Fayne v. Vincent, 301 S.W.3d 162 (Tenn. 2009) (clarifying TCPA coverage for real estate transactions)