                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                             July 8, 2008 Session

                       MICHAEL SHROPSHIRE v. BETTY ROACH

                         Appeal from the Circuit Court for Robertson County
                                  No. 11452   Ross H. Hicks, Judge



                       No. M2007-02593-COA-R3-CV - Filed January 30, 2009


A home seller appeals a jury verdict finding that she intentionally misrepresented water conditions
in the basement in connection with the sale of her home. According to the seller, the jury verdict
was against the weight of the evidence and the trial court erroneously allowed opinion testimony
from the contractor who repaired the water damage. We affirm, finding that material evidence
supports that the jury verdict and that the trial court did not err in allowing the testimony.

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

PATRICIA J. COTTRELL, P.J.,M.S., delivered the opinion of the court, in which FRANK G. CLEMENT ,
JR. and ANDY D. BENNETT , JJ., joined.

Lee Borthick, Springfield, Tennessee, for the appellant, Betty Roach.

Steve North, Mark North, Madison, Tennessee, for the appellees, Michael Shropshire and wife,
Rebecca Shropshire.

                                                     OPINION

        In October of 2005, Michael and Rebecca Shropshire bought a home in Greenbrier,
Tennessee, from Betty Roach. Thereafter, the Shropshires sued Mrs. Roach1 for damages alleging
that Mrs. Roach intentionally failed to disclose and made intentional misrepresentations about water
problems in the basement of the home, and that they relied upon these representations or failures to
their detriment when they bought the home. According to the Shropshires, the water problems in
the basement have required extensive repairs and caused a depreciation in the home’s value. Mrs.
Roach denied making any intentional misrepresentation about the home. In addition, Mrs. Roach
maintained that any reliance the Shropshires placed on Mrs. Roach’s alleged misrepresentation was


         1
           Originally, the Shropshires also sued Mr. Eskesen, whom they hired to inspect the home prior to its purchase,
but their claim against him proceeded through arbitration, and he was non-suited in this action.
misplaced since the inspection report obtained by the Shropshires before the sale noted possible
water problems.

        On October 10, 2007, the matter was tried before a jury. The defendant’s motion for a
directed verdict was denied at the close of plaintiffs’ proof, and Mrs. Roach’s renewed motion for
directed verdict was denied at the close of the proof.2 The jury returned a verdict for the Shropshires
totaling $12,375.

        Mrs. Roach moved for a new trial and asserted, among other grounds, that the weight of the
evidence was insufficient to support the verdict, that the trial court erred when it twice denied Mrs.
Roach’s request for a directed verdict, and that the trial court erred when it allowed plaintiffs’
witness, Layne Geebers, to provide opinion testimony and exacerbated this error by failing to give
a curative instruction. On November 20, 2007, the trial court denied the new trial motion, and Mrs.
Roach’s appeal ensued.

         Mrs. Roach appeals the jury award on the same grounds she raised in her motion for a new
trial discussed above. Each ground will be addressed separately.

                         I. VERDICT AGAINST THE WEIGHT OF THE EVIDENCE

        We interpret Mrs. Roach’s argument on appeal to be that the trial court first should have
directed the verdict in her favor and, alternatively, should have granted a new trial on the grounds
that the verdict was against the weight of the evidence. As explained in Blackburn v. CSX
Transportation, Inc., M2006-01352-COA-R10-CV, 2008 WL 2278497 (Tenn. Ct. App. May 30,
2008) (no Tenn. R. App. P. 11 application filed), the claim that a verdict is against the weight of the
evidence is grounds for both a directed verdict and a new trial, but the standards to be applied by the
trial court in ruling on the motions vary since the consequences are different:

         It is easy to fail to distinguish the unique aspects of a motion for a new trial with a
         motion for judgment as a matter of law. While both may be made after a jury has
         rendered a verdict, their consequences are quite different. Due to the difference in
         consequences, trial courts generally apply different standards to their consideration
         and different standards of review are applicable on appeal.

         A renewed motion for judgment as a matter of law may be joined, in the alternative,
         with a motion for a new trial under Rule 59. These motions have wholly distinct
         functions and entirely different standards govern their allowance. Nevertheless there
         has been confusion and some courts persist in stating, as the standard for judgment
         as a matter of law, the much more lenient test that is applicable to a motion for a new



         2
           On appeal, the Shropshires argue that Mrs. Roach did not move for a directed verdict at the close of the proof.
The trial court, however, apparently believed Mrs. Roach had so moved since the trial court denied the motion.

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        trial when it is based on the ground that the verdict is against the weight of the
        evidence.

        The contrasts between the two motions are dramatic. If a motion for a new trial is
        granted, the case is tried again. If the motion for judgment as a matter of law is
        granted, the case is at an end. Because of the finality that the latter motion has, it is
        natural that it should be measured by a far more rigorous standard. On a motion for
        new trial, the court has wide discretion to order a new trial whenever prejudicial error
        has occurred. On a motion for judgment as a matter of law, it has no discretion
        whatsoever and considers only the question of law whether there is sufficient
        evidence to raise a jury issue. On a motion for new trial the court may consider the
        credibility of witnesses and the weight of the evidence. On a motion for judgment
        as a matter of law, it may not.

        All of this has been understood for some time and is thoroughly settled in the cases.
        9AWright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE : CIVIL 2d§ 2531
        (1995).

Id., at *3-4.

        In considering a motion for a directed verdict, the trial court must take the strongest
legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in
favor of that party, and discard all countervailing evidence. Newcomb v. Kohler Company, 222
S.W.3d 368, 390 (Tenn. 2006) (quoting Crain v. Benton, 823 S.W.2d 187, 195 (Tenn. Ct. App.
1991)); Johnson v. Tennessee Farmrs Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006). On the
other hand, if a motion for a new trial is filed, then the trial court is under a duty to independently
weigh the evidence and determine whether the evidence “preponderates” in favor of or against the
verdict. Woods v. Herman Walldorf & Co., Inc., 26 S.W.3d 868, 873 (Tenn. Ct. App. 1999); Shivers
v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996); Witter Nesbit, 878 S.W.2d 116, 121 (Tenn.
Ct. App. 1993). This role is referred to in Tennessee as that of a “thirteenth juror.” Holden v.
Rannick, 682 S.W.2d 903, 904-05 (Tenn. 1984). No one disputes that the trial court applied the
appropriate standards to the two motions.

        It is well established that once a trial court has approved a jury verdict, the standard to be
applied on appeal to review the jury verdict is stringent, whether the challenge is to the failure to
grant a directed verdict or a new trial. The Supreme Court has clearly provided the standard we are
to use when entertaining challenges to jury findings of fact:

        The applicable standard of review is set out in Tennessee Rule of Appellate
        Procedure 13(d), which provides, “[f]indings of fact by a jury in civil actions shall
        be set aside only if there is no material evidence to support the verdict.” Discussing
        that standard of review, we have stated:



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         When addressing whether there is material evidence to support a verdict, an appellate
         court shall: (1) take the strongest legitimate view of all the evidence in favor of the
         verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all
         reasonable inferences to sustain the verdict; and (4) discard all [countervailing]
         evidence. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.
         1978); Black v. Quinn, 646 S.W.2d 437, 439-40 (Tenn. App. 1982). Appellate courts
         shall neither reweigh the evidence nor decide where the preponderance of the
         evidence lies. If the record contains “any material evidence to support the verdict,
         [the jury’s findings] must be affirmed; if it were otherwise, the parties would be
         deprived of their constitutional right to trial by jury. Crabtree Masonry Co., 575
         S.W.2d at 5.

Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006).

        Once the trial court has approved the verdict, on appeal we are to affirm the verdict if the
record contains “any material evidence.” Washington v. 822 Corp., 43 S.W.3d 491, 494 (Tenn. Ct.
App. 2000); Barrett v. Vann, E2006-01283-COA-R3-CV, 2007 WL 2438025, at *11 (Tenn. Ct. App.
Aug. 29, 2007) (no Tenn. R. App. P. 11 application filed); Mabey v. Maggas, M2006-02689-COA-
R3-CV, 2007 WL 2713726, at *8 (Tenn. Ct. App. Sept. 18, 2007) (no Tenn. R. App. P. 11
application filed) (“Because we find no error in the trial court’s actions as thirteenth juror, our review
of the appellants’ argument regarding sufficiency of the evidence is subject to the well-established
‘material evidence’ standard”)); Ballard v. Serodino, Inc., E2004-02656-COA-R3-CV, 2005 WL
2860279, at *3 (Tenn. Ct. App. Oct. 31, 2005) (no Tenn. R. App. P. 11 application filed); Foster v.
Wilson, W2003-00872-COA-R3-CV, 2004 WL 2086320, at *2 (Tenn. Ct. App. Sept. 9, 2004) (no
Tenn. R. App. P. 11 application filed); See Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980).
The Supreme Court has articulated an abuse of discretion standard in reviewing the grant or denial
of a new trial when the issue was not sufficiency of the evidence. Ali v. Fisher, 145 S.W.3d 557,
564-65 (Tenn. 2004) (alleging error of trial court concerned court’s pre-trial ruling as to allocation
of fault). We do not discern a substantive difference applicable to the case before us between the
material evidence standard and the abuse of discretion standard. If there is no material evidence to
support a verdict, then the trial court abused its discretion since approving such a verdict is against
logic or reasoning.3 Consequently, the issue on appeal is whether there is material evidence to
support the jury’s verdict.

        The crux of Mrs. Roach’s arguments attacking the jury verdict is that there was no justifiable
reliance by the Shropshires on any statements made by Mrs. Roach since the Shropshires were aware




         3
           A trial court abuses its discretion “only when it applies an incorrect legal standard, or reaches a decision that
is against logic or reasoning that causes an injustice to the party complaining.” Mercer, 134 S.W .3d 121, 131 (Tenn.
2004) (quoting State v. Shirley, 6 S.W .3d 243, 247 (Tenn. 1999)).

                                                            -4-
of the water problem due to Mr. Eskesen’s inspection. Consequently, Mrs. Roach argues, the
Shropshires cannot prevail on their intentional misrepresentation claim.4

         The Residential Disclosure Statement provided to the Shropshires by Mrs. Roach prior to
closing answered “yes” to the question whether there were past or present water intrusions/standing
water in the basement. By way of explanation, Mrs. Roach included the statement “when a heavy
rain last year some water in basement.” Prior to buying the house, the Shropshires hired Mr. Eskesen
to inspect the home. Since Mr. Eskesen’s report under “minor problems” noted signs of moisture
seepage in the basement, Mrs. Roach argues that the Shropshires did not prove a required element
of a misrepresentation claim, namely justifiable reliance.

       At trial, Mrs. Roach testified that other than the single instance referred to in the Disclosure
Statement, she never had standing water in the basement. According to her, the one time water did
accumulate in the basement it was gone within an hour and did not require vacuuming or mopping.
Her son, however, testified that he used a shop vac to remove the standing water.

        The jury heard testimony from Mr. Shropshire about questions he asked Mrs. Roach
concerning a dehumidifier she kept in the basement. Mr. Shropshire testified Mrs. Roach said that
the dehumidifier was in the basement to help with her granddaughter’s allergies and that the
basement did not get wet or flood. Mr. Stropshire testified that when he asked about the Disclosure
Statement, Mrs. Roach said last year when it rained hard the wall under the porch was wet but that
there had never been standing water in the basement. Mr. Shropshire questioned the inspector, who
found signs of moisture in the basement. According to Mr. Shropshire, while the inspector noted
the signs of water, the inspector said it was consistent with what Mrs. Roach said. The inspector did
not pull up the carpet or remove the paneling. At the home closing, Mr. Shropshire testified he asked
Mrs. Roach directly about whether the basement floor got wet and she said no. The inspector’s
report failed to check the boxes that indicated “Major Water Problems,” “Persistent Flooding
Likely,” “Persistent Minor Seepage Likely” and other types of water problems.

        Mrs. Roach relies on Israel v. Williams, M1999-02400-COA-R3-CV, 2000 WL 1183081
(Tenn. Ct. App. Aug. 22, 2000) (no Tenn. R. App. P. 11 application filed), which found that notice
of water problems removed justifiable reliance in a negligent misrepresentation claim. Mrs. Roach’s
reliance on Israel is misplaced for several reasons. First, Israel was decided upon summary
judgment with no disputed issues of fact. Here, Mr. Shropshire and Mrs. Roach give different
versions of her representations, and the jury reconciled the disputed areas. Second, Israel pertained
to negligent misrepresentation and not intentional misrepresentation as alleged by the Shropshires.
Third, the evidence of water damage known to the buyers in Israel was more extensive than that



         4
          Justifiable reliance is one element of an intentional misrepresentation claim. In order to be successful on an
intentional misrepresentation claim, the representation must be of a false existing or past material fact which was made
knowingly, without belief in its truth, or recklessly and was reasonably relied upon by the plaintiff causing damage.
Walker v. Sunrise Pontiac - GMC Truck, Inc., 249 S.W .3d 301, 311 (Tenn. 2008).

                                                          -5-
known by the Shropshires, the alleged misrepresentations by Mrs. Roach were more elaborate, and
the buyers here asked for more information than in Israel.

       Based on the foregoing, using the standard of review from Whaley, we find there is material
evidence to support the verdict, and the jury verdict is affirmed.

                                II. TESTIMONY OF LAYNE GEEBERS

         Before trial, the Shropshires identified the contractor who repaired the basement, Layne
Geebers, as a witness about the repair work performed. Counsel for Mrs. Roach states in her brief
that in a pre-trial conference she expressed no objections to Mr. Geebers testifying about repairs but
would object to expert testimony from Mr. Geebers.

      According to Mrs. Roach, Mr. Geebers inappropriately testified that the water damage to the
basement occurred over a period of years and that counsel for the Shropshires in their closing
argument inappropriately cited Mr. Geebers’ testimony to support this conclusion.

         The standard of review we are to employ to appeals based on the admissibility of evidence
is clear and well established. The admissibility of evidence is within the discretion of the trial court,
and the decision to admit or exclude evidence is reversible only upon a clear abuse of discretion by
the trial judge. Mercer v. Vanderbilt University, 134 S.W.3d at 131 (citing Otis v. Cambridge Mut.
Fire Ins. Co., 850 S.W.2d 439, 442-43 (Tenn. 1992)). See Biscan v. Brown, 160 S.W.3d 462, 469
(Tenn. 2005). A trial court abuses its discretion “only when it applies an incorrect legal standard,
or reaches a decision that is against logic or reasoning that causes an injustice to the party
complaining.” Mercer, 134 S.W.3d at 131 (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn.
1999)).

       During his testimony, Mr. Geebers testified that his examination of the dismantled basement
showed efflorescence which is “salts that come through on concrete block over a duration of time
when moisture comes through that.” He testified that the furring strips applied to the brick wall as
a means to fasten a finish were discolored and rotting away. Mr. Geebers testified that these effects
happened when flooding occurs over time. There was no objection during his testimony, and
counsel for Mrs. Roach cross-examined Mr. Geebers on the accuracy of this testimony.

        We do not believe admission of this proof, even assuming counsel had appropriately
objected, to be an abuse of discretion. Mr. Geebers was simply explaining the definition of
efflorescence and the condition of the basement walls as he found them.

        Finally, with regard to the requested curative instruction, even if Mr. Geeber’s testimony was
inadmissible, failure to give a curative instruction is not reversible error. Reversal for failure to give
a special instruction is appropriate “only when the improper denial of a request for a special jury
instruction has prejudiced the rights of the requesting party.” Johnson v. Tennessee Farmers Mutual



                                                   -6-
Insurance Company, 205 S.W.3d 365, 372 (Tenn. 2006) (citing Spellmeyer v. Tenn. Farmers Mut.
Ins. Co., 879 S.W.2d 843, 846 (Tenn. Ct. App. 1993)).

       It is not sufficient that refusal to grant the requested instruction may have affected the
       result; “[i]t must affirmatively appear that it did in fact do so.” Otis v. Cambridge
       Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992).

Johnson, 205 S.W.3d at 372.

        Based upon this record, we do not find failure to give a curative instruction constituted
reversible error. The jury verdict is affirmed. Costs of this appeal are taxed to the appellant, Betty
Roach, for which execution may issue if necessary.



                                                        ____________________________________
                                                        PATRICIA J. COTTRELL, P.J., M.S.




                                                  -7-
