                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 6, 2007 Session

       ROBIN LEE STANFILL, ET AL. v. JOHN T. MOUNTAIN, ET AL.

                       Appeal from the Circuit Court for Maury County
                           No. 10862    Stella R. Hargrove, Judge



                  No. M2006-01072-COA-R3-CV - Filed February 12, 2008


This appeal arises out of a real estate transaction in Maury County, Tennessee, wherein the
Plaintiffs/Appellants purchased property from Defendants/Appellees John T. Mountain and Melody
Mountain. Defendant/Appellee Carl Brooks served as an independent real estate agent for the
transaction. Plaintiffs filed suit against the Defendants alleging fraud, misrepresentation and
violation of the Consumer Protection Act. Both Defendants filed motions for summary judgment.
By Order dated April 19, 2006, the trial court granted summary judgment in favor of the Defendants.
Subsequently, the trial court awarded discretionary costs against the Plaintiffs. For the following
reasons we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JON KERRY BLACKWOOD , SR. J., delivered the opinion of the court, in which HOLLY M. KIRBY and
ANDY D. BENNETT, JJ., joined.

John E. Herbison, Nashville, Tennessee, for appellants, Robin Lee Stanfill and Robyn Ann Stanfill,
individually and as next friends on behalf of their minor children, C. S. and M. S.

David A. Bates and C. Nicholas Fossett, Columbia, Tennessee, for appellee Carl Brooks.

Scott C. Williams and Rhonda A. Scott, Nashville, Tennessee, for appellees John T. Mountain and
Melony Mountain.

                                            OPINION

                                        Factual Background

        The Defendants, John T. Mountain and Melody Mountain, entered into a contract, dated June
19, 1999, for sale of their property located at 3982 Cecil Farm Road with Robin Lee Stanfill and
Robyn Ann Stanfill [hereinafter “Plaintiffs”]. Defendant Carl Brooks served as a facilitator for this
transaction. The closing occurred on August 2, 1999. After the Plaintiffs moved onto the property,
they discovered certain alleged defects in the property which included mold contamination: defects
in the septic system, electrical and mechanical systems; septic problems; and, structural defects.
Plaintiffs’ children began to experience symptoms of diarrhea with occasional vomiting. Subsequent
medical testing revealed a high level of lead within the children’s bodies. The Plaintiffs also
discovered the existence of underground storage tanks that had been used to store gasoline. These
tanks were located within fifteen feet of the well that supplied the water for the house and
underground swimming pool. These pipes had been observed by the Plaintiffs prior to the sale.
However, Plaintiffs alleged that Defendant Carl Brooks informed them that the pipes were part of
a diary. The well water was later tested and determined to be contaminated. On June 14, 2004, the
Plaintiffs filed suit against the Defendants alleging fraud, misrepresentation and violation of the
Tennessee Consumer Protection Act. An Amended Complaint was filed on September 24, 2004.
The complaint alleged that Defendant Brooks concealed the problems with the property including
the presence of lead-based paint, the presence of the underground storage tanks, that the tanks had
contaminated the well, and the latent defects to the property. The Plaintiffs alleged that as a result
of these misrepresentations they suffered damages for medical expenses, pain and suffering, loss of
the enjoyment of life, and economic damages. By Order dated April 4, 2006, the trial court entered
a Memorandum Opinion granting summary judgment in favor of the Defendants. The trial court
found as follows:

       There is simply no proof of causation. There is no proof to any degree of
       professional certainty that the underground storage tanks caused contamination of the
       well.    If causation cannot be established, then negligent or intentional
       misrepresentation concerning knowledge of the underground storage tanks on the
       part of any of the Defendants are immaterial.

       There is no proof as to damages caused by lead-based paint. Therefore, claims of
       misrepresentations regarding the Lead-Based Paint Disclosure form are immaterial.
       This is true as to all Defendants.

       No actual knowledge of any mold contamination on the part of any Defendants is
       conceded by Plaintiffs.

                                         Standard of Review

        Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ.
P. 56.04. No presumption of correctness attaches to a trial court’s judgment granting summary
judgment. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Our task is to review the record
of the proceedings in the trial court to ascertain anew if the requirements of the summary judgment
rule have been satisfied. Id. The moving party has the burden of proving that its motion satisfies
requirements of Tennessee Rules of Civil Procedure 56. Id.

       In order to obtain judgment in a summary fashion “the movant must either affirmatively
negate an essential element of the non-movant’s claim or conclusively establish an affirmative
defense.” McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)(citing Byrd v.

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Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). If the moving party successfully negates a claimed basis
for the action, the non-moving party may not simply rest upon the pleading, but must offer proof to
establish the existence of the essential elements of the claim. Id.

                                              Analysis

        In support of Defendants’ motion for summary judgment, the deposition of Dr. Roy Dallas
Crowder, Ph.D. was filed. Dr. Crowder was employed by the Department of Environment and
Conservation for the State of Tennessee as a staff chemist. Dr. Crowder reviewed the groundwater
test results of the well water at 3982 Cecil Farm Road. Dr. Crowder testified by deposition that he
had more than thirty years experience in the analysis of contaminants in water samples and was
familiar with testing petroleum contaminants in water. Dr. Crowder testified that none of the
compounds found in petroleum were found in the water sample taken from 3982 Cecil Farm Road.
He further testified as follows:

       In the case of Gasoline Range Organics, there’s a – of which there was none detected
       here – you can go to the volatile analysis and you can look for typical volatile
       compounds that you’ll see in gasoline and you can look for, again: benzene, toluene,
       ethyl benzene and xylene, which is call BTEX; that’s actually another analysis that
       is petroleum oriented. You can perform a BTEX analysis for those four compounds
       and you will find those present for gasoline . . . None of these were detected. There
       are other compounds that are typical of gasoline, there’s methyl tertiary butyl ether,
       if it’s a later, it’s a more recent production. Naphthalene is something that’s common
       in gasoline. In fact, naphthalene is used as a marker compound for UST
       [underground storage tank] contamination. But there is nothing detected. There are
       a mixture of benzene isomers 1,2,4 and 1,3,5 trimethylbenzene, is very characteristic
       of gasoline, but none of these were detected at all. And when I reviewed that aspect
       of it, I said, “Well there’s no gasoline contamination of this water.”

       Dr. Crowder opined that the well water on the property was not contaminated by the presence
of the underground storage tanks. Dr. Crowder stated that he was 100 percent sure that in his
“professional opinion” the water sample was not contaminated by petroleum.

       An essential element of Plaintiffs’ claim is causation. The Plaintiffs have the burden of
proving by a preponderance of the evidence that the groundwater well was contaminated by
petroleum caused by the presence of the underground storage tank. The testimony of Dr. Crowder
negates this essential element of Plaintiffs’ claim.

       In order to establish causation, Plaintiffs filed the affidavit of Mark Quarles, a professional
geologist. In his Affidavit, Mr. Quarles stated that:

       For a very old release of petroleum hydrocarbons that is in an area of high
       groundwater flow rate, it is possible that VOC’s [volatile organic compounds] and
       SVOC’s [semi-volatile organic compounds] would experience biodegradation and
       dilution because of the potential age of the release and the high flow rates of

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       carbonate (limestone) aquifers. Therefore biodegradation could in part, explain the
       absence of VOC’s and SVOC’s in the sample.

        In summary, Mr. Quarles’ Affidavit stated that there was a possibility that compounds found
in petroleum hydrocarbons had been dissipated by bio degradation. Mr. Quarles does not state to
any degree of professional certainty that the underground storage tanks more likely than not caused
the contamination of the well.

        The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that
it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere
possibility of such causation is not enough; and when speculation or conjecture or the possibilities
are at best evenly balanced, it becomes the duty of the court to direct a verdict in favor of the
defendant. Lindsey v. Miami Development Corporation, 689 S.W.2d 856 (Tenn. 1985). The
Affidavit of Mark Quarles is insufficient to establish causation.

        The Plaintiffs also attempt to rely upon the deposition testimony of Mr. Christopher Ian
Barrett to create a disputed fact regarding causation. Mr. Barrett, a geologist for the Tennessee
Department of Conservation, authored an e-mail message stating that the “two fill ports from
underground storage tanks are located approximately fifteen feet from the well water, indicating that
these UST[s] are the most likely source of contamination.” However, this e-mail was authored prior
to the issuance of Dr. Crowder’s opinion that there was no petroleum contamination of the well
water. Later in Mr. Barrett’s deposition he agreed with Dr. Crowder’s opinion regarding the well
water.

       In summary, the Plaintiffs have failed to establish that the underground storage tanks caused
the contamination of the well water.

        Defendants John T. Mountain and Melody Mountain filed Affidavits that they had no actual
knowledge of the alleged defects to the property including any significant defects in the interior
walls, ceiling, plumbing, sewer/septic system, electrical system or basement. Also filed, as an
Exhibit to Defendants’ Motion for Summary Judgment, was a Tennessee Residential Property
Condition Disclosure and a Lead-Paint Disclosure form. The Lead-Paint Disclosure form indicated
that Defendants had no knowledge of “lead-based paint and/or lead-based paint hazard in the
housing.” This document was initialed by Plaintiff Robin Stanfill who also checked the box wherein
purchasers waived the opportunity to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards.

        “For a seller of real estate to be liable under the theories of either fraudulent
misrepresentation or failure to disclose, he must have actual knowledge of the defect.” West v.
Logan, 1992 WL 64780 (Tenn. Ct. App.). The Plaintiffs have failed to show that Defendants John
T. Mountain and Melody Mountain had actual knowledge of the alleged defects. Therefore, we
affirm the trial court’s Order granting summary judgment for Defendants John T. Mountain and
Melody Mountain.



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        Defendant Carl Brooks filed an Affidavit indicating that he had no actual knowledge of the
alleged defects located on the property. Tennessee Code Annotated § 62-13-403(2) provides that
real estate brokers have a duty to disclose to each party to the transaction any adverse facts to which
the licensee has actual notice or knowledge. The Plaintiffs have offered no proof to rebut the lack
of knowledge of the alleged defects on the part of Defendant Carl Brooks. Accordingly, we affirm
the judgment of the summary judgment in favor of Defendant Carl Brooks.

        Finally, the Plaintiffs assert that the trial court erred in granting discretionary costs to the
Defendants. The trial court granted discretionary costs in the amount of $8,780.54 in favor of
Defendants John T. Mountain and Melody Mountain. “The intent behind rule 54.04 is that
reasonable and necessary costs in the preparation and trial of the case may be assessed as
discretionary costs by the trial court.” Lock v. National Union Fire Ins. Co., 809 S.W.2d 483, 490
(Tenn. 1991). “Awarding costs in accordance with T. R. Civ. P. 5404(2), like awarding other costs,
is within the trial court’s reasonable discretion.” Perdue v. Green Branch Mining Co., 837 S.W.2d
56, 60 (Tenn. 1992). Because the decisions are discretionary, reviewing courts are generally
disinclined to second guess a trial court’s decision unless the trial court has abused its discretion.
Woodlawn Memorial Park, Inc. v. Keith, 70 S.W.3d 691, 698 (Tenn. 2002). The Affidavits filed in
support of the motion for discretionary cost are clearly items contemplated by Rule 54.02.
Accordingly, we affirm the award of discretionary costs.

       We affirm the judgment of the trial court and assess cost against the Plaintiffs/Appellants.



                                               __________________________________________
                                               JON KERRY BLACKWOOD, SENIOR JUDGE




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