                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   MARCH 8, 2001 Session

               KATHRYN DARDEN v. BRADLEY SENSING, ET AL.

                Direct Appeal from the Chancery Court for Davidson County
                No. 97-2532-III; The Honorable Ellen Hobbs Lyle, Chancellor



                      No. M2000-01519-COA-R3-CV - Filed July 27, 2001


This appeal arises from the Appellant’s purchase of a house and property owned by the Appellees.
Following the purchase, a landslide occurred on the property. The Appellant filed a complaint in the
Chancery Court of Davidson County seeking compensatory damages against the Appellees for fraud,
intentional misrepresentation, negligent misrepresentation, breach of warranty, breach of contract,
deceit, and violation of the Tennessee Consumer Protection Act. Following a jury trial, the jury
entered a verdict in favor of the Appellees. The Appellant filed a motion for a new trial. The trial
court denied the motion for a new trial.

         The Appellant appeals the jury verdict in favor of the Appellees and the denial of the motion
for a new trial by the Chancery Court of Davidson County. For the reasons stated herein, we affirm
the trial court’s decision.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD, joined.

Larry L. Crain; Clinton W. Watkins, Brentwood, TN, for Appellant

W. Gary Blackburn; John R. Callcott, Nashville, TN, for Appellees

                                             OPINION

                                 I. Facts and Procedural History

         In 1985, the Appellee, Bradley Sensing (“Mr. Sensing”) purchased property upon which he
constructed a single family home located at 7921 Saddle Ridge Trace, Nashville, Tennessee 37221
(“the Saddle Ridge property” or “the property”). The Saddle Ridge property consists of a 1.9 acre
lot situated on a steep hill with a one and one-half story house located on the upper part of the hill.
On May 12, 1994, Mr. Sensing transferred the property to the Appellee, Air Affiliates, Inc. (“Air
Affiliates”), a Tennessee corporation of which Mr. Sensing is president. Air Affiliates rented the
Saddle Ridge property back to Mr. Sensing at which he continued to reside.

        The Appellant, Kathryn E. Darden (“Ms. Darden”), considered purchasing the Saddle Ridge
property and visited the property on several occasions. On February 18, 1995, Mr. Sensing signed
a Tennessee Residential Property Condition Disclosure form and provided the form to Ms. Darden.
The form asked whether Mr. Sensing, as seller, was aware of “any settling from any cause, or
slippage, sliding, or other soil problems.” Mr. Sensing checked “no.” The form asked whether he
was aware of “any flooding, drainage, or grading problems.” Mr. Sensing checked “no.” The form
also asked whether he was aware of “major property or structural damage from . . . landslides.” Mr.
Sensing checked “no.” On March 7, 1995, Mr. Sensing entered into a contract with Ms. Darden for
the sale of the Saddle Ridge property in the amount of $196,500.00. Revisions were made to the
contract on March 8 and March 16, 1995. On April 17, 1995, Mr. Sensing transferred ownership
of the property to Ms. Darden.

        On March 13, 1997, following a heavy rain, a landslide occurred on the Saddle Ridge
property. Ms. Darden claims that the ground cracked approximately five feet from the sidewalk in
front of her home at the nearest point and dropped approximately one foot at the crack. A ridge of
dirt formed approximately 175 feet downhill. The area of the landslide constituted approximately
100 feet by 175 feet. The landslide caused a part of the driveway to crumble away and created an
accordian effect along the entire front of the lawn. Ms. Darden obtained several estimates regarding
the cost to repair the property ranging from $52,000.00 to $300,000.00. Ms. Darden retained the
services of Dr. Ron Jones (“Dr. Jones”), a civil engineer specializing in the evaluation and cause of
geological movement. The total cost Ms. Darden paid to Dr. Jones to repair the property was
$73,500.00.

        On July 30, 1997, Ms. Darden filed a complaint in the Chancery Court of Davidson County
seeking compensatory damages against Mr. Sensing and Air Affiliates for fraud, intentional
misrepresentation, negligent misrepresentation, breach of warranty, breach of contract, deceit, and
violation of the Tennessee Consumer Protection Act. On September 26, 1997, Mr. Sensing and Air
Affiliates filed an answer and a motion to dismiss for failure to state a claim upon which relief can
be granted. On November 18, 1997, the trial court denied Mr. Sensing and Air Affiliates’ motion
to dismiss. On September 21, 1998, Mr. Sensing and Air Affiliates filed a motion for partial
summary judgment. The trial court denied Mr. Sensing and Air Affiliates’ motion for partial
summary judgment.

        The jury trial commenced on January 31, 2000. At the close of Ms. Darden’s proof, Mr.
Sensing and Air Affiliates moved for a directed verdict. The trial court denied the motion for a
directed verdict. On February 3, 2000, the jury returned a verdict in favor of Mr. Sensing and Air
Affiliates, finding specifically:
        1) Ms. Darden failed to prove by clear and convincing evidence that Mr. Sensing and Air
Affiliates intentionally or recklessly misrepresented a past or existing material fact regarding the real


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estate that was sold to Ms. Darden with the intention that Ms. Darden would rely on that
misrepresentation.
         2) Mr. Sensing and Air Affiliates did not misrepresent a past or existing material fact
regarding the real estate that was sold to Ms. Darden without exercising reasonable care to determine
its truth and with the intention that Ms. Darden would rely on that misrepresentation.
On March 15, 2000, Ms. Darden filed a motion for a new trial. On May 23, 2000, the trial court
entered an order denying the motion for a new trial. This appeal followed.

                                       II. Standard of Review

        Our standard of review as to findings of fact by a jury in a civil action is limited to
determining whether there is any material evidence to support the verdict. See TENN. R. APP . P.
13(d). Appellate courts do not determine the credibility of witnesses or weigh evidence on appeal
from a jury verdict. See Pullen v. Textron, Inc., 845 S.W.2d 777, 780 (Tenn. Ct. App.1992) (citing
Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). A judgment based on
a jury verdict will not be disturbed on appeal where the record contains material evidence supporting
that verdict. See Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994).

                                        III. Law and Analysis

        The following issues are presented for our review:
1) Whether there is any material evidence to support the jury verdict;
2) Whether the trial court erred in denying Ms. Darden’s motion for a new trial;
3) Whether the common law claim for negligent misrepresentation was barred by the one year statute
of limitations imposed by the Tennessee Residential Disclosure Act;
4) Whether the Tennessee Consumer Protection Act applies to the sale of a home by an entity not
in the business of buying and selling real estate; and
5) Whether Ms. Darden’s appeal is frivolous.
We will examine each of these issues in turn.

                                             Jury Verdict

        The first issue presented for our review is whether there is any material evidence to support
the jury verdict. Ms. Darden argues that there was no material evidence to support the jury verdict
in favor of Mr. Sensing and Air Affiliates. When jury trials are involved, our task is to determine
whether there is any material evidence to support the jury’s verdict. See Harper v. Watkins, 670
S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson, 588 S.W.2d 315, 317 (Tenn. Ct. App.
1979); see also TENN. R. APP . P. 13(d). In reviewing evidence, we are required to “take the strongest
legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to
support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.”
Lassetter, 588 S.W.2d at 317 (quoting D. M. Rose & Co. v. Synder, 206 S.W.2d 897, 901 (Tenn.
1947); Kidd v. Dunn, 499 S.W.2d 898, 900 (Tenn. Ct. App. 1973)). Appellate courts do not
determine the credibility of witnesses or weigh evidence on appeal from a jury verdict. See Pullen


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v. Textron, Inc., 845 S.W.2d 777, 780 (Tenn. Ct. App. 1992) (citing Crabtree Masonry Co. v. C &
R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). The weight, faith, and credit to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded will
be given great weight by the appellate court. See Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844, 849
(Tenn. Ct. App. 1982).

         Over the course of the trial, eight witnesses testified as to their observations of the Saddle
Ridge property both before and after the landslide. The witnesses also answered questions pertaining
to potential knowledge of a prior landslide or concealment of that knowledge by Mr. Sensing. Mr.
Sensing testified that, during construction on the Saddle Ridge property home in 1985, trees were
removed from the property which caused soil erosion. Without the trees, the rain turned the loose
dirt to mud which washed down the hill. Mr. Sensing lined bales of hay along the bottom of the yard
to prevent the mud from washing into the street. Mr. Sensing testified that, once he planted a good
stand of grass, the erosion stopped by the summer of 1987. Mr. Sensing testified that another erosion
problem occurred sometime between 1986 to 1988 when the erosion rolled up and formed a mound
that measured approximately two feet by twenty-five feet. The mound was approximately six inches
in height. Mr. Sensing testified that he covered the mound with grass seed. Mr. Sensing testified
that he discussed with Ms. Darden a drainage ditch and standing water in the backyard. Mr. Sensing
testified that he never discussed with Ms. Darden the erosion problems or the mound because it was
no longer a problem. Mr. Sensing testified that he saw nothing to indicate there had been a landslide
on the property.

         Ms. Darden testified that, prior to the purchase of the Saddle Ridge property, she was
concerned with standing water in the backyard and a gully in the side of the yard. Ms. Darden
testified that Mr. Sensing downplayed these problems as insignificant. Ms. Darden testified that Mr.
Sensing told her that he had not had any erosion. Ms. Darden testified that she relied on Mr.
Sensing’s verbal and written assurances concerning the property. Ms. Darden testified that, had she
known of the erosion problems, she would have called in a land specialist prior to the purchase. Ms.
Darden testified that, shortly after she moved onto the Saddle Ridge property, she found Jimmy
Prince (“Mr. Prince”), the lawn mower for Mr. Sensing, mowing her lawn. Mr. Prince pointed out
to her the mound at the foot of the hill. Ms. Darden testified that, before she bought the house, she
was aware of an indenture or ridge-like place on the property, but she did not know what it was. Ms.
Darden testified that she never asked Mr. Sensing whether a landslide had occurred.

        Mr. Prince testified that he saw the mound at the foot of the hill of the Saddle Ridge property.
Mr. Prince testified that Mr. Sensing told him that the mound occurred one or two years before Mr.
Prince began mowing the lawn, approximately 1989 or 1990. Mr. Prince testified that, prior to Ms.
Darden purchasing the property, he never saw a crack on the property like that which occurred after
the landslide.

       Linda Reed (“Ms. Reed”) lived directly across the street from the Saddle Ridge property. Ms.
Reed testified that she observed mud washing into the street from Mr. Sensing’s property. Ms. Reed
described the mud as a swell “like a wave coming down the hill.” Ms. Reed testified that she


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observed soil accumulating at the bottom of the hill sometime between 1992 to 1994. Ms. Reed
testified that she never saw a crevice or a crack on the property, and she was not aware of any
landslides occurring while Mr. Sensing owned the property.

         Dr. Jones testified that evidence of previous movement is an important predictor with regard
to property as to whether there may be a future landslide. Dr. Jones testified that examples of
previous movement would be “old scars from the escarpment where tensions cracks had opened in
the past. There might be tilted trees, hummocky ground where you see old rollovers and things of
that type.” Dr. Jones testified that it takes experience to know geology and topographic features in
order to evaluate whether property could experience a landslide. Dr. Jones testified that he saw a
major escarpment, or crack, in the ground when he examined the Saddle Ridge property for Ms.
Darden. Dr. Jones testified that he saw no sign of a prior escarpment. Dr. Jones testified that “not
too many untrained people would know what to look for” to predict a landslide. Finally, Dr. Jones
testified:
                Q. Now, when you – you were describing a moment ago how these
                landslides take place. Did I understand you correctly . . . Dr. Jones,
                that the water saturates down through this porous soil until it reaches
                the rock surface below?
                A. Until it reaches some impermeable layer which may be a clay
                layer or a bedrock layer.
                Q. So this is not the same thing then as wash, erosion on the surface?
                A. That’s correct. It’s something that’s happening below ground.
                Q. So this property could have – say they took trees off the side of
                that hill and then it rained before the grass had set in and washed mud
                and stuff down into the street. That’s not a landslide, is it?
                A. No. That would be a surface erosion problem.

        John Lucas (“Mr. Lucas”), a home builder, built the Saddle Ridge property home. Mr. Lucas
lived next door to Mr. Sensing until 1989. Mr. Lucas testified that he saw nothing to indicate that
there had been a landslide on Mr. Sensing’s property.

         Jerry Blair (“Mr. Blair”), a real estate agent, represented Mr. Sensing in the sale of the Saddle
Ridge property to Ms. Darden. Mr. Blair inspected the property prior to putting it on the market.
Mr. Blair testified that he saw normal wash, or soil deposits, at the bottom of the hill. Mr. Blair
testified that Ms. Darden commented on the wash when viewing the Saddle Ridge property.

         Tracy Hogan (“Ms. Hogan”), the former wife of Mr. Sensing, resided on the Saddle Ridge
property until 1991. Ms. Hogan testified that, after soil erosion occurred as a result of removing the
trees, “the yard never washed, split, or did anything else after that. It stayed intact.” Ms. Hogan
testified that she saw no evidence of a landslide on the property.




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        We have reviewed the evidence using the proper standard of review and have determined that
there is material evidence to support the jury verdict. Accordingly, we decline to disturb the jury
verdict on appeal.

                                      Motion for a New Trial

         The second issue presented for our review is whether the trial court erred in denying Ms.
Darden’s motion for a new trial. Following the jury verdict, Ms. Darden filed a motion for a new
trial in which she argued that the jury verdict was contrary to the weight of the evidence. The trial
court denied the motion for a new trial without comment. A motion for a new trial requires the trial
judge to perform the function of thirteenth juror. See Ridings v. Norfolk S. Ry. Co., 894 S.W.2d
281, 288 (Tenn. Ct. App. 1994). As the thirteenth juror, “the trial judge is under a duty to
independently weigh the evidence and determine whether the evidence preponderates in favor of or
against the verdict.” Shivers v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996). The decision
to grant or deny a motion for a new trial is largely within the trial court’s discretion. See Mize v.
Skeen, 468 S.W.2d 733, 736 (Tenn. Ct. App. 1971). Where the trial judge has approved the jury’s
verdict, our standard of review is whether there is any material evidence to support the verdict. See
TENN. R. APP . P. 13(d). We must presume that the trial judge adequately performed her function as
thirteenth jury when, as in the case at bar, she simply approves a jury verdict without comment when
ruling on a motion for a new trial. See Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc., 919
S.W.2d 36, 41 (Tenn. Ct. App. 1995). After reviewing the record as a whole, we find that the trial
judge properly performed her duty as thirteenth juror and that there is material evidence to support
the jury’s verdict. Accordingly, we find the trial court did not err in denying the motion for a new
trial.

                                       Statute of Limitations

         The third issue presented for our review is whether the common law claim for negligent
misrepresentation was barred by the one year statute of limitations under the Tennessee Residential
Disclosure Act. Because we find that there is material evidence to support the jury verdict and that
the trial court did not err in denying the motion for a new trial, we decline to address Mr. Sensing
and Air Affiliates’ issue relating to the statute of limitations.

                               Tennessee Consumer Protection Act

         The fourth issue presented for our review is whether the Tennessee Consumer Protection Act
applies to the sale of a home by an entity not in the business of buying and selling real estate.
Because we find that there is material evidence to support the jury verdict and that the trial court did
not err in denying the motion for a new trial, we decline to address Mr. Sensing and Air Affiliates’
issue relating to the Tennessee Consumer Protection Act.




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                                         Frivolous Appeal

        The fifth issue presented for our review is whether Ms. Darden’s appeal is frivolous under
section 27-1-122 of the Tennessee Code. Tennessee law permits any reviewing court to award
damages for a frivolous appeal:

               When it appears to any reviewing court that the appeal from any
               court of record was frivolous or taken solely for delay, the court
               may, either upon motion of a party or of its own motion, award
               just damages against the appellant, which may include, but need
               not be limited to, costs, interest on the judgment, and expenses
               incurred by the appellee as a result of the appeal.

TENN. CODE ANN . § 27-1-122 (2000).

A frivolous appeal is one that is devoid of merit or has no reasonable chance of succeeding. See
Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978); Davis v. Gulf Ins. Group,
546 S.W.2d 583, 586 (Tenn. 1977); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999);
Industrial Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). Determining whether
to award damages based on a frivolous appeal is a discretionary decision. See Banks v. St. Francis
Hosp., 697 S.W.2d 340, 343 (Tenn. 1985).

       Mr. Sensing and Air Affiliates argue that this Court should award reasonable attorney’s fees
and costs because Ms. Darden’s appeal is frivolous. We do not deem this to be an appropriate case
for imposition of sanctions for a frivolous appeal and, therefore, respectfully deny Mr. Sensing and
Air Affiliates’ request in this regard.

                                          IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellant, Kathryn E. Darden, for which execution may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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