Michael J. Boeh v. Arthur M. Dial
M2021-00520-COA-R3-CV
| Tenn. Ct. App. | Jul 12, 2022Background
- Michael and Anna Boeh contracted (Oct. 2016) to buy a new home and Lot 431 in Stream Valley; closing occurred April 20, 2017.
- An Original Plat (recorded Sept. 2016 by engineering firm ELI) depicted the lot outside the FEMA 100‑year floodplain, but that depiction was incorrect; the purchasers never received or reviewed that Original Plat before contracting.
- After closing NVR/ELI learned the lot encroached the floodplain, graded/filled adjoining areas, submitted a FEMA LOMR, and a Revised Plat (Jan. 2018) removed the lot from the floodplain.
- The Boehs sued ELI (negligent misrepresentation) and NVR (breach of contract; TCPA §47‑18‑104(b)(12)), claiming misrepresentations about the floodplain reduced the lot’s value and that they relied on the Original Plat/representations.
- ELI and NVR moved for summary judgment; the Boehs failed to timely respond or appear at the initial hearing, ELI’s motion was granted, NVR continued its hearing; the Boehs’ Rule 59 motion to set aside ELI’s dismissal (for lack of notice) was denied as the court found constructive/actual notice.
- The trial court granted NVR summary judgment: (1) the Purchase Agreement allowed grading/site changes (per plat addendum and municipal definition of “grading”), curing the issue post‑closing; and (2) the TCPA claim failed because the record showed no culpable deceptive conduct by NVR. Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 59 motion / notice of hearing | Boehs: clerk failed to properly serve hearing notice (email errors); relief warranted to set aside ELI summary judgment | Defs: Boehs had actual/constructive notice via communications and did not show excusable neglect or meritorious defense | Court: denied Rule 59; Boehs had notice/failed to show meritorious defense or prejudice; denial not an abuse of discretion |
| Negligent misrepresentation (ELI) | Boehs: relied on Original Plat depiction showing lot outside floodplain; reliance was justified | ELI: Boehs never received or relied on the Plat; constructive reliance insufficient | Court: no actual reliance; constructive reliance not a basis for negligent misrepresentation; summary judgment for ELI affirmed |
| Breach of contract (NVR) | Boehs: NVR sold Lot 431 "as shown on the Original Plat" and therefore breached when plat was inaccurate | NVR: contract disclaimed reliance, allowed changes to plans/plat/grading and reserved post‑closing rights to correct site; lot was made buildable and removed from floodplain (no damages) | Court: "grading" as used in agreement (informed by municipal code) permitted site elevation/drainage changes; NVR cured; summary judgment for NVR |
| TCPA §47‑18‑104(b)(12) | Boehs: representations in deed/contract and agent statements were deceptive under TCPA; no fault/knowledge required | NVR: no deceptive intent or knowledge; no reliance or damages; TCPA does not impose strict liability for this provision | Court: TCPA not strict liability for all provisions; plaintiff must show actionable deception/fault under this subsection; record lacks such fault—summary judgment for NVR |
Key Cases Cited
- Linkous v. Lane, 276 S.W.3d 917 (Tenn. Ct. App. 2008) (Rule 59 review = abuse of discretion standard)
- Discover Bank v. Morgan, 363 S.W.3d 479 (Tenn. 2012) (standards/factors for relief from default/excusable neglect)
- 84 Lumber Co. v. Smith, 356 S.W.3d 380 (Tenn. 2011) (interpretation begins with the contract’s plain language)
- Individual Healthcare Specialists, Inc. v. BlueCross BlueShield of Tenn., 566 S.W.3d 671 (Tenn. 2019) (use of extrinsic evidence for context in fully integrated contracts; parol rule limits)
- ARC LifeMed, Inc. v. AMC‑Tennessee, Inc., 183 S.W.3d 1 (Tenn. Ct. App. 2005) (elements required to prove breach of contract)
- Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997) (TCPA does not impose strict liability across all provisions; knowledge/intent may be required depending on subsection)
- Tucker v. Sierra Builders, 180 S.W.3d 109 (Tenn. Ct. App. 2005) (analysis of what constitutes "unfair" or "deceptive" under the TCPA)
- Rye v. Women's Care Ctr., 477 S.W.3d 235 (Tenn. 2015) (summary judgment reviewed de novo)