                 IN THE COURT OF APPEALS OF TENNESSEE

                                                         FILED
GERALD POATS and                      )   C/A NO. 03A01-9704-CH-00138
CECILIA E. POATS,                     )                October 30, 1997
                                      )
     Plaintiffs-Appellants,           )                  Cecil Crowson, Jr.
                                      )                  Appellate C ourt Clerk
                                      )   APPEAL AS OF RIGHT FROM THE
                                      )   McMINN COUNTY CHANCERY COURT
v.                                    )
                                      )
                                      )
                                      )
CHARLES E. NELSON,                    )
                                      )   HONORABLE EARL H. HENLEY,
     Defendant-Appellee.              )   CHANCELLOR




For Appellants                            For Appellee

BOYD W. VENABLE, III                      JEFFREY L. CUNNINGHAM
Shanks & Blackstock                       Carter, Harrod & Cunningham
Knoxville, Tennessee                      Athens, Tennessee




                           OPINION




AFFIRMED AND REMANDED                                               Susano, J.

                                  1
           This case arose out of a contract for the sale of real

estate.   The plaintiffs, Gerald Poats and his wife Cecilia E.

Poats (collectively, “the Poats”), sued Charles E. Nelson

(“Nelson”), claiming that Nelson had breached a contract for the

conveyance of two lots in an “airpark” subdivision with access to

the McMinn County Airport.   At the close of the Poats’ proof, the

trial court granted Nelson’s motion to dismiss the complaint

pursuant to Rule 41.02(2), Tenn.R.Civ.P.   The Poats appealed,

raising two issues which present the following questions for our

review:



           1. Where Nelson contracted to sell the Poats
           two lots in a subdivision and the Poats paid
           for the two subdivision lots, would knowledge
           by the Poats of some further approval
           necessary for airport access bar an action
           for breach of contract, in light of the fact
           that Nelson assured the Poats that such
           approval would be granted and was a mere
           formality?

           2. Did Nelson’s use of a plat map,
           restrictions, and references to the Lot
           numbers in the Bills of Sale constitute a
           violation of T.C.A. § 13-3-410, and as a
           result of that violation should the trial
           court have granted such relief as was
           equitably appropriate under the
           circumstances?



Nelson raises the following issues in his brief:



           1. Did the Chancellor correctly dismiss the
           plaintiffs’ claims of negligent
           misrepresentation or fraudulent inducement to
           contract, when the truth and facts of the
           alleged misrepresentation were known to the
           plaintiffs prior to entering into the
           contract?

           2. Is a private right of action pursuant to
           T.C.A. § 13-3-410 available to the plaintiffs


                                 2
            when the same has not been pled in the
            complaint as a ground for equitable relief?

            3. Are the plaintiffs’ claims barred by the
            doctrine of merger?

            4. Are the plaintiffs’ claims barred by the
            statute of limitations?



We affirm.



                                  I



             The Poats and Nelson became acquainted through their

membership in the Swift Association, a national organization,

based in Athens, Tennessee, of owners of Swift Airplanes.    At a

1986 Swift Association convention, Nelson, who was the president

of the Swift Association, approached the Poats about purchasing a

lot in a planned subdivision in Athens.    The subdivision was to

consist of lots that were suitable for the construction of homes

and airplane hangars.    Each lot would also provide access to the

McMinn County Airport.



             In December, 1986, the Poats met with Nelson to discuss

purchasing a lot in the subdivision.    Nelson showed them a plat

map, which was designated as a “proposal” for the “McMinn County

Airpark.”    On December 30, 1986, the Poats and Nelson executed

two bills of sale, by which the Poats purchased two lots in the

“McMinn Co. Airpark.”    Mr. Poats testified that, at the time of

the conveyances, he was aware that airport access for the

subdivision had not yet been approved.    Nelson, however, assured

the Poats that a majority of the local county commissioners



                                   3
supported his plan, and that there would be little difficulty in

obtaining approval for access to the airport.



          In April, 1987, the Poats received the warranty deeds

for the two lots and commenced the construction of an airplane

hangar on the property.    They subsequently sold their home in

Indiana and moved to Athens.    As promised, Nelson petitioned the

County Commission for permission to build his proposed airpark.

Mr. Poats attended some meetings of the Commission’s Airport

Committee with Nelson.    In the meantime, the Poats built a home

on their new property.    Nelson ultimately addressed the County

Commission on September 19, 1989, at which time the Commission

refused to approve airport access for the subdivision.    Nelson

subsequently presented a different proposal and filed complaints

in the McMinn County Chancery Court and with the Federal Aviation

Administration, all of which proved to be unsuccessful.



          As a result of the denial of airport access to the

subdivision, the Poats could no longer house their aircraft in

the hangar on their property, since the expense and effort

involved in transporting the plane to the airport was

substantial.   They instead were required to rent hangar space at

the airport.   They subsequently filed this action, claiming that

Nelson had breached the bills of sale by failing to provide lots

with airport access, i.e, lots in an “airpark” subdivision.

Arguing that they would not have purchased the subject property

had they known that approval of the airpark and access to the

airport would be denied, the Poats sought damages for breach of

contract, or, in the alternative, rescission of the bills of


                                  4
sale1.    Following the presentation of the Poats’ proof, Nelson

moved for an involuntary dismissal pursuant to Rule 41.02(2),

Tenn.R.Civ.P.     The trial court granted Nelson’s motion, finding

that the Poats



            ...had shown no right to relief in this cause
            in that [they] knew at the time of the
            transactions in question... that the proposed
            airpark had not been approved. The Court
            further finds that while both the plaintiffs
            and the defendant may have expected approval
            of the proposed airpark at an uncertain time
            in the future, that such expectation was not
            a certainty and that all parties knew of the
            uncertainty at the time of entering into the
            transaction....



The trial court thus dismissed the Poats’ complaint, and this

appeal followed.



                                      II



            In the case of Atkins v. Kirkpatrick, we addressed the

procedures by which a trial court is to determine whether to

grant a Rule 41.02(2) motion for involuntary dismissal:



            If a motion to dismiss is made at the close
            of Plaintiffs’ proof in a non-jury case,
            under T.R.C.P. Rule 41.02(2), the trial court
            must impartially weigh and evaluate the
            evidence just as though it were making
            findings of fact and conclusions of law after
            presentation of all the evidence. If the
            plaintiff’s case has not been established by
            a preponderance of the evidence, the case
            should be dismissed if, on the facts found in
            the applicable law, plaintiff has shown no

      1
       At oral argument, counsel for the Poats stated that his clients are not
seeking rescission of the bills of sale; likewise, the Poats do not raise the
question of rescission in their brief. Thus, we need not consider whether
that doctrine is applicable to the facts before us.

                                      5
          right to relief. City of Columbia v. C.F.W.
          Construction Co., 557 S.W.2d 734 (Tenn.1977).



Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn.App. 1991); see

also Smith v. Inman Realty Co., 846 S.W.2d 819, 822 (Tenn.App.

1992) and Derryberry v. Hill, 745 S.W.2d 287, 290 (Tenn.App.

1987).



          Our standard of review of a trial court’s decision to

grant an involuntary dismissal under Rule 41.02(2) is in

accordance with Rule 13(d), T.R.A.P.    Atkins, 823 S.W.2d at 552;

Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.App.

1988); Derryberry, 745 S.W.2d at 290.    Thus, we are required to

review the record de novo and to presume that the factual

findings of the trial court are correct, unless the evidence

preponderates otherwise.   Rule 13(d), T.R.A.P.; Atkins, 823

S.W.2d at 552; Irvin, 767 S.W.2d at 653; Derryberry, 745 S.W.2d

at 290.



                                III



          We shall first address the question of whether the

trial court properly dismissed the Poats’ complaint.    The Poats

argue that the trial court erred in dismissing their claim

because they knew, at the time of contracting, that further

governmental approval was necessary to procure airport access.

They contend that Nelson’s assurance that obtaining such approval

was a mere formality constitutes a misrepresentation sufficient

to give rise to an action for breach of the bills of sale.     In


                                 6
short, the Poats argue that they did not receive what they had

contracted for -- two lots in an airpark subdivision, with access

to the airport.



           Nelson, on the other hand, contends that the trial

court properly dismissed the complaint, given the Poats’

knowledge of the uncertainty surrounding the approval of airport

access.   Nelson also argues that the Poats’ claim is more

properly characterized as a claim for misrepresentation or

fraudulent inducement to contract.



           Although we disagree with Nelson’s assessment of the

nature of the Poats’ claim, we believe that the trial court

correctly granted a dismissal under Rule 41.02(2), Tenn.R.Civ.P.

The proof clearly establishes that, at the time they entered into

the transactions, the Poats were aware that approval had not been

obtained for access to the airport.   Mr. Poats testified that

when he purchased the property, he knew that the County

Commission had not taken official action to approve the airpark.



           Therefore, the granting of access to the airport was

not a certainty at the time the bills of sale were executed, but

was merely an event that the parties expected would occur at some

point in the future.   Furthermore, there is nothing in the

contracts or elsewhere in the record to indicate that Nelson’s

assurances rose to the level of a guarantee or warranty.     Given

the knowledge of the parties, the use of the term “airpark” in

the bills of sale cannot provide the basis for a breach of

contract claim.   The Poats were aware that the ultimate decision


                                 7
regarding airport access rested not with Nelson, but with the

appropriate governmental entities.   Having used his best efforts

to obtain approval of such access, Nelson cannot be found to have

breached the contracts simply because the anticipated approval

was never granted.   Under these circumstances, therefore, the

Poats have shown no right to relief.   Atkins, 823 S.W.2d at 552.



                                IV



           The Poats also contend that Nelson’s use of a

subdivision plat map, restrictions and lot numbers in selling the

subject lots constitutes a violation of T.C.A. § 13-3-410, which

prohibits a sale of land



           ...by reference to or exhibition of or by
           other use of a plat of subdivision of such
           land without having submitted a plat of such
           subdivision to the regional planning
           commission and obtained its approval....



Id.   They argue that such violation entitles them to equitable

relief.



           Our review of the record reveals that the Poats did not

raise this issue prior to this appeal.   It is well-established

that issues not raised at the trial level will not be considered

for the first time on appeal.   Book-Mart of Florida v. National

Book Warehouse, 917 S.W.2d 691, 694 (Tenn.App. 1995); Sparks v.

Metropolitan Gov’t of Nashville and Davidson County, 771 S.W.2d

430, 434 (Tenn.App. 1989).   For this reason, we will not address

the Poats’ second issue.


                                 8
          Accordingly, we hold that the trial court properly

dismissed the Poats’ complaint in accordance with Rule 41.02(2),

Tenn.R.Civ.P.   In light of this conclusion, it is not necessary

that we reach the additional issues raised by Nelson.



          The judgment of the trial court is affirmed.   Costs on

appeal are taxed to the appellants and their surety.    This case

is remanded to the trial court for the collection of costs

assessed there, pursuant to applicable law.



                                     __________________________
                                     Charles D. Susano, Jr., J.



CONCUR:



_________________________
Houston M. Goddard, P.J.



_________________________
Don T. McMurray, J.




                                 9
