                  IN THE COURT OF APPEALS OF TENNESSEE

                        EASTERN SECTION AT KNOXVILLE            FILED
                                                                 February 5, 1997

                                                                Cecil Crowson, Jr.
RICHARD E. PERRY, and wife,        )                            Appellate C ourt Clerk
TAMELIA PERRY,                     )
                                   )
             Plaintiffs/Appellees  )             UNION CHANCERY
                                   )
v.                                 )
                                   )
TERRY FLATFORD, and wife,          )             NO. 03A01-9609-CH-00305
TERESA FLATFORD, BRENDA DYE, )
GORDON WHITE, REMAX                )
PREFERRED PROPERTIES, INC.,        )
DAVID SNELSON, BEVERLY V.          )
McMAHAN, CROSSROADS REALTY, )
JIM PEMBERTON, JR.,                )
RANDY BUTTON & ASSOCIATES,         )
INC., d/b/a EAST TENNESSEE         )
APPRAISAL GROUP and HARRY W. )
FERSNER,                           )
                                   )
             Defendants/Appellants )             VACATED and REMANDED



Lewis S. Howard, Jr., Knoxville, for Appellant Brenda Dye
Boyd W. Venable, III, Knoxville, for Appellants White and Remax

Johnny V. Dunaway, LaFollette, for Appellees Perry

                                     OPINION

                                                 INMAN, Senior Judge

       This is an action for damages allegedly sustained by the plaintiffs as a result

of misrepresentations made to them in their purchase of a residence.

       The defendants are identified in Appendix A to this Opinion, together with the

allegations made against each of them.

       The residence was served by well water which the sellers had tested upon the

advice of their agent, Dye. The water was contaminated; the Union County Health

Inspector advised the sellers to pour Clorox into the well, wait one day, and re-test

the water. The second test revealed no contamination. Thereafter, the transaction

was closed, but in the course of time, after the plaintiffs had moved in, the

contamination reappeared.



       The Health Code of Union County requires a distance separation between a
well and septic tank of 50 feet. FHA regulations require a separation of 60 feet, and

require the well to produce a minimum of three gallons per minute for four hours.

The FHA also requires a plumber’s certification of production and separation. The

plumber, Fersner, obliged by filling in the required form; but shortly thereafter, the

closing company advised that “they wanted the well certificates to be 100 feet from

the septic field,” and Fersner obliged when requested by Dye to sign the new

dimension.

       At the trial, Fersner admitted that he did not accurately determine the distance

from the well to the septic field, nor did he determine the water production of the well.

       An FHA appraisal was made by Pemberton, an original defendant, who was

non-suited. Pemberton failed to memorialize various defects in the house which

would have resulted in a rejection of FHA financing. After the plaintiffs moved in,

they requested a review appraisal which resulted in a litany of defects being noted,

but the appraisal remained in the $68,000 - $70,000 range. The other defects were

relatively minor ones, chiefly concerning the electrical system.

       Because of the contaminated water, the plaintiffs moved out of the house after

about three months, and essentially abandoned it. The FHA mortgage, which

financed 100 percent of the purchase price, was foreclosed. The purchase price

was $84,000, which effectively canceled the indebtedness. This action was filed

January 18, 1995.

       The defendants generally denied all allegations of misrepresentation, fraud or

statutory violations.

       The Chancellor found Dye guilty of deceit, concealment, negligent

misrepresentation, fraudulent misrepresentation and violating the Consumer

Protection Act. A judgment was rendered against her and her principals, White and

Remax, for 50 percent of the award of actual damages of $23,750 plus double

damages of $23,750, for a total award of $35,625. Judgment for ten percent of the

total award, or $2,375, was awarded against the Flatfords, and for 35 percent of the

total award, or $8,312.50, against Snelson, McMahan and Crossroads Realty. The

plaintiffs were found to have been five percent at fault.



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       To these awards was added the additional sum of attorneys fees and costs of

$16,138.30. Only Dye, White and Remax Realty have appealed.

       Because the issue of damages is determinative of this appeal, we do not

believe it necessary to particularize the testimony concerning the actions of Dye, who

was the selling agent for the owners. At no time did she communicate with the

plaintiffs. The chief complaint against her appears to be over-zealousness in

persuading the plumbing inspector - Fersner - to misrepresent the distance between

the well and the septic field. Even so, Fersner’s certification was not presented at

the closing of the transaction, and for this reason we doubt its efficaciousness to the

plaintiff’s case. Moreover, the case against Fersner was non-suited, and the

Chancellor apportioned no fault to him. For the same reasons we do not believe it

productive to particularize the nature of the alleged defects further than we have

shown.

                                The Issue of Damages

       The parties agree that the proper measure of damages was the difference

between the amount the plaintiffs paid for the property and the amount it was worth

had the alleged defects been disclosed. See Haynes, infra.

       The damages witness for the plaintiffs, Roger Ball, testified:

Q:     After your viewing of this property and looking at these various areas of

problems, do you have an opinion as to what the current market value of this

house is?

A:     Well, I’m thinking it’s probably like thirty thousand dollars.

       .....

Q:     As a general contractor do you have an opinion of the kind of money that it

       would cost just to repair the defects that you are aware of that are open and

       obvious to you from having thoroughly inspected the house?

A:     Well, I’m going to say it; probably twenty-five to thirty thousand dollars -

       potentially that . . .

               The appellants argue that the opinion of Mr. Ball was neither

admissible nor probative because his review or appraisal of the house was done



                                             3
more than eighteen months after the plaintiffs abandoned it. On this point, he

testified:

Q:     So its fair to say that you have absolutely no knowledge whatsoever of the

market value or reasonable value of this house prior to September 1, 1994,

correct?

A:     I don’t know, that’s true.

       A difficulty confronting the plaintiffs is that they purchased the house on

September 1, 1994, for $73,000. (entirely financed by an FHA mortgage), lived in the

house for two or three months, made no payments on their mortgage, and then

abandoned it. The mortgage was foreclosed and the house was sold for $84,424.95.

So far as the record reveals, the plaintiffs made a profit, since there is no evidence of

the deposition of the excess of $11,000. There is no evidence in the record that had

the requisite repairs been made the house would have sold for more, or would have

had a greater value than the amount brought at foreclosure. The damages witness,

Roger Ball, testified about the current [May 1996] value of the house, which was

irrelevant since the plaintiffs no longer owned it. The salient transaction occurred 21

months earlier, in September, 1994, and the house had been sold April 10, 1996 for

$84,424.95. The measure of damages and the fixing of the value of the property are

to be determined as of the time of the transaction. Haynes v. Cumberland Bldrs.,

Inc., 546 S.W.2d 228 (Tenn. Ct. App. 1976).

        The plaintiffs made no effort to remedy any defects. They merely elected to

abandon the house, thereby exacerbating the defects, according to their own expert.

No efforts were made to mitigate damages. Foreclosure of the mortgage for non-

payment of the note installments extinguished the plaintiffs’ debt. It is settled law in

this State that a foreclosure bid, absent any irregularity in the foreclosure sale, is the

best evidence of value at the time of the sale. Duke v. Daniel, 660 S.W.2d 793

(Tenn. Ct. App. 1983), and cases cited. It is well-nigh conclusive.

        We have examined the case at length to determine if any award of damages

could be based on the benefit of the bargain measure. The complaint does not

allege a loss of benefit of the bargain, and no evidence whatever was offered on the



                                            4
point. The Chancellor, as in Haynes v. Cumberland Builders, Inc., 546 S.W.2d 278

(Tenn. Ct. App. 1976), “had before him only estimates of the value of the property in

controversy at the time of trial,” (emphasis in original) which, as we have noted, is of

slight probative value. While the witness Ball testified concerning the cost of repairs,

none was made or attempted; Mr. Ball vacillated on cross-examination, admitted a

considerable lack of pertinent knowledge and information, and conceded that he was

to an extent speculating. Even so, the foreclosure bid conclusively established the

value of the property, defects and all. Duke, supra.

       The plaintiffs are entitled to recover for all losses proximately caused by Dye

and her principals. However, they have the burden of proving their damages to a

reasonable certainty. Brice v. Scroggs Equipment Co., 267 S.W.2d 119 (Tenn. Ct.

App. 1963).

       In an action for damages caused by fraudulent misrepresentation, the proper

measure of the plaintiff’s general damages is the benefit of the bargain rule. Haynes

v. Cumberland Builders, Inc., supra. This measure allows the plaintiff to recover the

difference between the actual value of the property and the value that the property

would have possessed if the representations had been true. Haynes, supra. As we

have observed, the only testimony of value in this record is that of Roger Ball, who

opined as to its value as of the date of trial, which was unprobative.

       We think the plaintiffs’ case against Dye and her principals must fail because

of a total failure to prove damages by any recognized standard in this State. Our

review is de novo on the record, with no presumption of correctness as to matters of

law. Hillsboro Playa Enter. v. Moon, 860 S.W. 2d 45 (Tenn. Ct. App. 1993).

       Accordingly, the judgment against Dye, White and Preferred

Properties/Remax is vacated with costs assessed to the appellees.




                                          __________________________________
                                          William H. Inman, Senior Judge
CONCUR:




                                            5
______________________________
Houston M. Goddard, Presiding Judge



______________________________
Don T. McMurray, Judge




                                 APPENDIX A


DEFENDANTS                            ALLEGATIONS IN COMPLAINT

Terry Flatford and wife Teresa        Sellers under 7/9/94 contract in which
Flatford                              plaintiffs were buyers of a house.

Brenda Dye                            Sales agent who represented Flatfords.

                                       6
Gordon White                               Broker who employed sales agent Dye.

Preferred Properties, Inc.                 Agency which employed agent Dye.

David Snelson                              Sales agent who represented plaintiffs.

Beverly V. McMahan, d\b\a                  Broker and agency which employed
Crossroads Realty                          sales agent Snelson.

Jim Pemberton, Jr.                         Appraiser employed by East Tennessee
                                           Appraisal.

Randy Button & Assoc., Inc.                Company employed by plaintiff and Barclays
d\b\a\ East Tennessee                      to appraise the house for sale.
Appraisal Group

Barclays American Mortgage                 Company issuing mortgage to plaintiff.
Corporation

Harry W. Fersner                           Licensed plumber hired by Flatfords to
                                           inspect plumbing, water & septic.

Plaintiffs were without specialized knowledge and necessarily relied on inspections
and representations made by the defendants in their decision to purchase the house.
Plaintiffs closed the sale on September 1, 1994. After taking possession, plaintiffs
discovered material misrepresentations and serious undisclosed hidden defects:

       (a) The well was too shallow and provided inadequate, contaminated water.
       Defendants Flatford knew this and withheld information from plaintiffs.

       (b) The well was too close to the septic tank and drain fields in violation of
       codes and accepted health standards.

       (c) Some drains did not drain into the septic system but onto the driveway.

       (d) “Dummy” electrical outlets were in place in the house. Defendants Flatford
       knew this and failed to disclose it.

       (e) The electrical panel box was installed in violation of the electrical code.

       (f) The appraiser incorrectly certified the location of the property.

       (g) Plaintiffs’ inspector discovered many more defects. Cost of making repairs
       far exceeded the alleged value of the house when the complaint was filed.
       Plaintiffs were forced to vacate and foreclosure was initiated.




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