JOSEPH DAVIS ET AL. v. PATRICK J. McGUIGAN ET AL. (Tenn. October 26, 2010)
This appeal arises from a trial court's grant of summary judgment in an action against a real estate appraiser for fraudulent misrepresentation and for violation of the Tennessee Consumer Protection Act. A husband and wife alleged that the appraiser, who was hired by the bank financing the husband and wife's home construction, recklessly overestimated the value of their proposed construction and that they reasonably relied on the appraisal value to their detriment.
The Court of Appeals affirmed the trial court's ruling, holding that an appraisal is an opinion that cannot form the basis for a fraudulent misrepresentation claim. We hold that an opinion can form the basis of a fraudulent misrepresentation claim. We further hold that genuine issues of material fact preclude summary judgment as to the husband and wife's claims against the appraiser. We reverse the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/davisj_102610.pdf
KOCH and CLARK, dissenting:
http://www.tba2.org/tba_files/TSC/2010/davisj_DIS_102610.pdf
Showing posts with label real estate. Show all posts
Showing posts with label real estate. Show all posts
October 26, 2010
February 27, 2008
Description of real property in contract for sale failed to adequately define dimensions and was therefore unenforceable under the statute of frauds
BRIGADOON PARTNERS, LLC v. DALE HUGHES, ET AL. (Tenn.Ct.App. February 27, 2008).
The plaintiff purchaser brought this action for specific performance of an agreement for the sale of a parcel of real estate. The trial court granted the seller summary judgment upon its finding, among other things, that the property description in the agreement was insufficient to satisfy the requirements of the statute of frauds. We affirm the trial court's judgment that the description of the property, which was to be divided from a larger tract owned by the seller, as "[i]n Cleveland, Tennessee, fronting on Paul Huff Pkwy at exit 27, and being further described as 1.5 acres fronting on the PKWY and I-75," was insufficient, and therefore the sale agreement was unenforceable pursuant to the statute of frauds.
Cases available at the Tennessee Bar Association website:
http://www.tba2.org/tba_files/TCA/2008/brigadoonpartners_022708.pdf
"As in Gorbics, the property description in the agreement in this case makes it possible to ascertain one definite corner of the property to be sold – the southwest corner – because the tract is said to front I-75 and the Paul Huff Parkway. But it is impossible to tell the shape or dimensions of the parcel, and to determine how much, if any, frontage on Ellis Circle Drive the parties intended to include in the sale, because, as in Gorbics, the parcel to be sold was to be divided from a larger tract owned by the sellers. The trial court so held, noting that “[t]here is an unlimited number of shapes that this property could in the defendants’ four acres2 that this Court is not at liberty to make decisions concerning.” Because “the description employed is one that must necessarily apply with equal exactness to any one of an indefinite number of tracts,” Dobson v. Litton, 45 Tenn. (5 Cold.) at 620, 1868 WL 2161 at *2, parol evidence was inadmissible to show that the parties intended to designate a particular tract by the description. Id." Id.
The plaintiff purchaser brought this action for specific performance of an agreement for the sale of a parcel of real estate. The trial court granted the seller summary judgment upon its finding, among other things, that the property description in the agreement was insufficient to satisfy the requirements of the statute of frauds. We affirm the trial court's judgment that the description of the property, which was to be divided from a larger tract owned by the seller, as "[i]n Cleveland, Tennessee, fronting on Paul Huff Pkwy at exit 27, and being further described as 1.5 acres fronting on the PKWY and I-75," was insufficient, and therefore the sale agreement was unenforceable pursuant to the statute of frauds.
Cases available at the Tennessee Bar Association website:
http://www.tba2.org/tba_files/TCA/2008/brigadoonpartners_022708.pdf
"As in Gorbics, the property description in the agreement in this case makes it possible to ascertain one definite corner of the property to be sold – the southwest corner – because the tract is said to front I-75 and the Paul Huff Parkway. But it is impossible to tell the shape or dimensions of the parcel, and to determine how much, if any, frontage on Ellis Circle Drive the parties intended to include in the sale, because, as in Gorbics, the parcel to be sold was to be divided from a larger tract owned by the sellers. The trial court so held, noting that “[t]here is an unlimited number of shapes that this property could in the defendants’ four acres2 that this Court is not at liberty to make decisions concerning.” Because “the description employed is one that must necessarily apply with equal exactness to any one of an indefinite number of tracts,” Dobson v. Litton, 45 Tenn. (5 Cold.) at 620, 1868 WL 2161 at *2, parol evidence was inadmissible to show that the parties intended to designate a particular tract by the description. Id." Id.
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