                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 13, 2004 Session

              GWINN FAYNE, ET AL. v. TERESA VINCENT, ET AL.

                     Appeal from the Chancery Court for Bradley County
                      No. 98-050, 98-267  Jerri S. Bryant, Chancellor



                     No. E2003-01966-COA-R3-CV            Filed August 5, 2004


Purchasers of real property sued sellers and real estate company seeking rescission for tortious
misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court rescinded
the transaction and dismissed the real estate company on the basis that the salesperson was an
independent contractor. Purchasers appealed asserting: (1) the salesperson was an agent rather than
independent contractor; (2) the trial court did not place the purchasers in the position in which they
would have been since the transaction was rescinded; and (3) the purchasers should have been
awarded their attorney’s fees. We agree with the trial court that the salesperson was an independent
contractor, but modify and remand for further proceeding (1) relative to placing the parties in the
position in which they would have been had there been no transaction and (2) concerning the
allowance of purchasers’ attorney’s fees.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as
                                Modified and Remanded

H. DAVID CATE, SP . J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , P.J., and
CHARLES D. SUSANO, JR., J., joined.

Michael A. Anderson, Chattanooga, Tennessee, attorney for appellants, Gwinn Fayne and Alfred
Fayne.

D. Mitchell Bryant, Cleveland, Tennessee, attorney for appellees, Teresa Vincent and David Vincent.

David P. Hawley, Chattanooga, Tennessee, attorney for appellee, Re/Max Real Estate Professionals.

                                             OPINION
                                                I.

       Gwinn and Alfred Fayne were the purchasers of the property in question, which is located
in Quail Run Subdivision, Bradley County, Tennessee, and known as 127 Quail Cove, Cleveland,
Tennessee.
       David Vincent was the developer of the subdivision and the builder of the house at issue.
Teresa Vincent was the wife of David Vincent and the realtor, who represented herself and her
husband in the sale of the property to the Faynes.

       Re/Max Real Estate Professionals [hereinafter “Re/Max”] is the real estate broker with whom
Teresa Vincent was associated. Re/Max and Teresa Vincent had entered into an Independent
Contractor Agreement dated April 25, 1996. Under the terms of the agreement Teresa Vincent was
permitted to devote such time and effort as she saw fit to establish her own endeavors as a real estate
salesperson. She was obligated to pay a fee for non-exclusive use of office facilities and was
responsible for her personal expenses, such as license fees, workers’ compensation insurance and
self-employment taxes. She received the entire commission from her sales endeavors. The
agreement also required her listings to be taken in the name of Re/Max, to attend legal education and
claims prevention seminars as approved by Re/Max, and to abide by ethical standards, laws in effect
and operating procedures of Re/Max.

        David Vincent obtained a permit on August 15, 1994, for construction of a subsurface sewage
disposal system on the property from the Tennessee Department of Environment and Conservation
[hereinafter “TDEC”]. The permit required the house to be setback 90 to100 feet from the street
since the septic tank and drain field were to be placed in the front yard.

        The TDEC made a final inspection of the sewage system as installed on June 6, 1996. The
inspector approved the system but made the following notes on the permit: “House should have been
setback closer to back lot line. House set too close to street. Approx. 60' setback. Any problems
will have to install pump to pump to back of lot.”

       On October 1, 1996, the Vincents signed the Tennessee Residential Property Condition
Disclosure, which indicated they were not aware of any significant defects or malfunctions in the
sewer septic system. Around this time the Vincents began to occupy the property.

        A couple of months later in December, 1996, the Vincents noticed water from the front yard
staining the sidewalk near the street. They had the septic system dug up and although the ground
was wet, the lines were dry. Gravel was added and the system was covered. David Vincent cleaned
the sidewalk by pressure washing it.

        The Faynes first saw the house in January 1997, and the Real Estate Sales Agreement was
signed in June 1997. Prior to closing the sale the Faynes accompanied their inspector to the property.
The inspector performed a dye test and the inspection report says: “no backup or slow drainage, no
seepage in drainfield.”

         On July 28, 1997, the sale of the property was consummated. The Faynes were represented
by their own realtor, and the sales commission was split between Teresa Vincent and the Faynes’
realtor.



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        Shortly after the Faynes took possession of the property they noticed, particularly after baths
and washing clothes, an odorous fluid seeping out of the ground in the septic system area. It ran
across the sidewalk and down the street. This situation continued and in January 1998, the Faynes
reported the problem to the TDEC and the Vincents.

       The Faynes filed this lawsuit against the Vincents on February 25, 1998, and sued Re/Max
on October 29, 1998.1 These lawsuits sought rescission or alternatively compensatory damages,
punitive or treble damages, attorney’s fees, and prejudgment interest based on the theories of
common law fraud and deceit and the Tennessee Consumer Protection Act.

      Another dye test was performed with negative results for seepage. And a water test was done
in May 2002, which was negative for bacteria. However, visual evidence continued to indicate
sewage seepage despite the effort of the Faynes to cut back substantially on baths and clothes
washing.

       While these cases were pending Alfred Fayne has been charged with a crime related to raw
sewage, and the Faynes have attempted to sell the property with full disclosure of the septic system
problem at a listing of $130,000. They have received no offers to purchase.

       The Faynes indicate the property is currently worth approximately $130,000 based on the tax
appraisal. There was evidence the septic system could be repaired for $3000 to $4500.

       After the Faynes’ proof in a non-jury trial the trial court dismissed the case against Re/Max,
holding that Teresa Vincent was an independent contractor. At the close of the proof the trial court,
while not finding intentional or fraudulent conduct, rescinded the contract, ordering the Vincents to
repay the $104,500 purchase price and any additional closing costs and ordering the Faynes to
reconvey the property to the Vincents.

                                                         II.

        Our review is de novo upon the record with a presumption that the trial court’s findings of
fact are correct unless the evidence preponderates otherwise. However, there is no presumption of
correctness as to the trial court’s conclusions of law. Tenn. R. App. P. 13(d), Bank/First Citizens
Bank v. Citizens & Assocs., 82 S.W.3d 259, 262 (Tenn. 2002).

                                                        III.

        The Faynes have raised the following issues in this appeal:




         1
          The trial of these cases was delayed due to a bankruptcy filing by the Vincents and a need for rehabilitation
of Re/Max’s insurance com pany.

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               (1)     Whether the trial court erred in dismissing Re/Max on the
                       grounds that Teresa Vincent, a realtor with Re/Max, was an
                       independent contractor.

               (2)     Whether the trial court erred in failing to put the Faynes in the
                       position they would have occupied if the Vincents had not
                       misrepresented this condition of the home they sold to the
                       Faynes.

               (3)     Whether the trial court erred in failing to award attorney’s fees
                       to the Faynes.

                                                 IV.

               Issue (1): Whether the trial court erred in dismissing Re/Max on the
               grounds that Teresa Vincent, a realtor with Re/Max, was an
               independent contractor.

        We hold the trial court was correct.

         Before we discuss the independent contractor-agent issue, it is noted that Re/Max asserts the
trial court made no finding of fault relative to Teresa Vincent. To the contrary the trial court said:
“I find in this case that the disclosure statement was violated.” The disclosure statement was signed
by Teresa Vincent and stated there was no significant defects or malfunctions with the septic system.
The disclosure statement was presented to the Faynes, even though Teresa Vincent was aware of the
seepage from the septic system prior to the sale. Also, it is implied from the judgment of the trial
court, which requires both Teresa and David Vincent to repay the purchase price to the Faynes, that
the trial court found fault on the part of Teresa Vincent.

       Concerning the independent contractor agent issue, in the case of U.S. v. Boyd, 363 S.W.2d
193, 197, 211 Tenn. 138, 148 (Tenn. 1962), the Court quoted from the case of Carbide & Carbon
Chemical Corp. v. Carson, 239 S.W.2d 27, 31, 192 Tenn. 150, 160 (Tenn. 1951) as follows:

               The distinctions between an independent contractor and an agent are
               not always easy to determine, and there is no uniform rule by which
               they may be differentiated. ‘Generally the distinction between the
               relation of principal and agent and employer and independent
               contractor is based on the extent of the control exercised over the
               employee in the performance of his work, he being an independent
               contractor if the will of the employer is represented only by the result,
               but an agent where the employer’s will is represented by the means as
               well as the result.’ 2C.J.S., Agency, § 2, p. 1027.



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               “The distinction generally between an independent contractor and an
               agent ‘depends upon the intention of the parties as express in the
               contract.’”

       Other factors, which are pertinent, are found in the case of Youngblood v. Wall , 815 S.W.2d
512, 516 (Tenn. Ct. App. 1991):

               1) Whether or not the one employed is engaged in a distinct
               occupation or business; 2) The kind of occupation with reference to
               whether in the locality the work is usually done under the direction of
               an employer or by a specialist without supervision; 3) The skill
               required in the particular occupation; 4) Whether the employer or
               workman supplies the instruments, tools and place of work of the
               person doing the work; 5) The length of time for which the person is
               employed; 6) Method of payment, whether by time or by job; 7)
               Whether or not the work is part of the regular business of the
               employer; 8) Whether or not the parties believe they are creating the
               relationship of master and servant; and, 9) Whether the principal is or
               is not in business. Henry v. United States, 452 F. Supp. 253, 254
               (E.D. Tenn. 1978).

        While Teresa Vincent advertised through Re/Max, attended seminars approved by Re/Max,
was required to abide by ethical standards, laws in effect and operating procedures of Re/Max, and
listed Re/Max as the listing agent on the properties she listed, she was free to devote such time and
effort as she saw fit to establish her own endeavors as a real estate salesperson. She received the
entire commission on her sales and listings with only an obligation to pay Re/Max for the non-
exclusive use of office facilities. She was responsible for her personal expenses, such as license fees,
workers’ compensation insurance and self-employment taxes.

      Considering the intentions of the parties as well as the circumstances, we hold that Teresa
Vincent was an independent contractor.

                                                  V.

               Issue (2): Whether the trial court erred in failing to put the Faynes in
               the position they would have occupied, if the Vincents had not
               misrepresented the condition of the home they sold to the Faynes.

       We hold it did.

         While there was some evidence to the effect that the sewer septic system could be repaired,
the trial court elected to rescind the contract, and neither the Faynes nor the Vincents appealed the
rescission. Rescission is an equitable remedy, it is not enforceable as of right, and the decision of


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whether to grant this extraordinary remedy rests in the sound discretion of the trial court. True v. J.
B. Deeds & Son, 151 Tenn. 630, 634, 271 S.W.41 (1924); Vakil v. Idnani, 748 S.W.2d 196, 199-200
(Tenn. Ct. App. 1987).

        The Faynes contend they were not put in the position they would have occupied had there been
no contract, because the trial court did not award moving expenses, loan closing expenses, property
taxes, prejudgment interest and attorney’s fees.2 The Vincents complain about not being awarded the
fair rental value of the property while the Faynes occupied it.

        The remedy of rescission involves the avoidance, or setting aside, of a transaction. It usually
involves a refund of the purchase price or otherwise placing the parties in their prior status. Mills v.
Brown, 568 S.W.2d 100, 102 (Tenn. 1978). When rescission is granted, the seller is entitled to
compensation from the buyer for use of the real estate. Such damages are normally measured by the
rental value of the property while the buyer had the property in his possession or under his control.
Issacs v. Bokor, 566 S.W.2d 532, 540 (Tenn. 1978). See Baird v. McDaniel Printing Co., 153
S.W.2d 135, 25 Tenn. App. 144 (Tenn. Ct. App. 1941).

        It appears from the closing statement that the Faynes paid certain closing expenses and
acquired a loan in order to pay the purchase price. They have had the use of the property since the
closing. The trial court in attempting to place the parties in the status quo did not include the
foregoing items in its calculation. Therefore, this case is remanded to the trial court for a
determination of all such items as are necessary to place the parties in the positions in which they
would have been had there been no contract.

        On remand the trial court may consider the closing expenses, mortgage interest, real estate
taxes, prejudgment interest, fair rental value and such other matters as may place the parties in their
pre-contract status quo positions. If such a determination might be too time consuming, the trial court
might wish to consider the appointment of a special master.

                                                         VI.

                 Issue (3): Whether the trial court erred in failing to award attorney’s
                 fees to the Faynes.

       We remand for further consideration.

        In the trial court’s bench opinion it was not stated upon which theory, common law fraud and
deceit or the Tennessee Consumer Protection Act, rescission was granted.

       In the absence of a statutory or contractual provision which calls for attorney’s fees, awarding
of such fees is not an appropriate element of damages. Morrow v. Bobbitt, 943 S.W.2d 384 (Tenn.


        2
            Attorney’s fees will be addressed in the discussion on the next issue.

                                                          -6-
Ct. App. 1996); State v. Brown & Williamson Tobacco Co., 18 S.W.3d 186 (Tenn. 2000). Thus, if
rescission was based upon the theory of common law fraud and deceit, attorneys fees would not be
appropriate. But if predicated on the Tennessee Consumer Protection Act, Tennessee Code
Annotated § 47-18-109(e)(1) provides upon a violation of a provision of the act the court may award
reasonable attorney’s fees.

        The issue of attorney fees is remanded. The trial court may consider the awarding of
attorney’s fees, if the rescission was based on a violation of the provisions of the Tennessee
Consumer Protection Act, along with its consideration of those items necessary to place the parties
in status quo.

                                               VII.

        In conclusion, the dismissal of Re/Max by the trial court because Teresa Vincent was an
independent contractor is affirmed. The case is remanded to ascertain such items and their
calculations as will place the Faynes and the Vincents in the status quo positions they would have
occupied due to the rescission. The Faynes’ attorney’s fees are remanded for further consideration
consistent with this opinion. Court costs of this appeal are taxed one-third to the Faynes and two-
thirds to the Vincents with execution awarded for its collection, if necessary.



                                                      ___________________________________
                                                      H. DAVID CATE, SPECIAL JUDGE




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