FILED

July 9, 1997

Cecil W. Crowson

MARK E. MILLER, )

)

Plaintiff/Appellant, )

)

VS. )

)

MICHAEL P. SCHRIMPF, RITA K. ) Appeal No.

SCHRIMPF, and TENNESSEE ) 01-A-01-9612-CH-00558

TITLE AND TRUST, INC., )

) Sumner Chancery

Defendants, ) No. 94C-219

)

LINDA H. VAUGHN, d/b/a )

LAKESIDE COLDWELL BANKER, )

BONNIE CAMPBELL and )

CAMPBELL REALTORS, INC., )

)

Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE TOM E. GRAY, CHANCELLOR

VICKY V. KLEIN

L. ANTHONY DEAS

509 Lentz Drive

P. O. Box 608

Madison, Tennessee 37115

Attorneys for Plaintiff/Appellant

J. RUSSELL FARRAR

KRISTIN ELLIS BEREXA

211 Seventh Street North, Suite 320

Nashville, Tennessee 37219

Attorneys for Defendant/Appellee Linda H. Vaughn

d/b/a Lakeside Coldwell Banker

LINDA F. BURNSED

SunTrust Center

424 Church Street, Suite 1750

Nashville, Tennessee 37219

Attorney for Defendant/Appellee Bonnie Campbell 

and Campbell Realtors, Inc.

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

KOCH, J.

CAIN, S.J.
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O P I N I O N

The purchaser of a subdivision lot sued his agent and the sellers’ agent

because the lot could not be approved for a septic tank. His complaint stated causes

of action for fraud, negligence, and a violation of the Tennessee Consumer Protection

Act. The Chancery Court of Sumner County granted summary judgment to both

agents. We reverse the simple negligence claim as to the purchaser’s own agent.

In all other respects, the judgment is affirmed.

I. Facts

The origin of this problem goes back to 1988 when Michael P. and Rita

K. Schrimpf bought Lot No. 11 in Countryside Estates from the Arnolds. Because the

property was not connected to a sewer and the soil did not percolate well, the

Schrimpfs also acquired an easement for a drain field on the rear 132 feet of Lot No.

12.

In 1990, the Schrimpfs listed the lot for sale with Linda H. Vaughn, d/b/a/

Lakeside Coldwell Banker. Bonnie Campbell of Campbell Realtors, Inc. contacted

Ms. Vaughn on behalf of Mark E. and Sheree P. Miller, who were looking for property

in that vicinity. After inspecting the property, the Millers made an offer and the parties

finally arrived at a sale price of $21,000. The contract contained the following

contingency: “This sale is contingent upon seller providing for buyer an approved

septic letter.” Closing was set for June 28, 1990.

On the appointed day, all parties gathered at the office of Doris Freeman

of Tennessee Title Company, the closing agent. Before the documents were

executed, the Millers learned that a septic letter had not been furnished. Ms. Vaughn,
1He also sued the Schrimpfs, Doris Freem an, and Tennessee Title Com pany but the claim s

against these defendants are still pending.

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the sellers’ agent, produced the recorded easement and left the room to make a

telephone call. The Millers assumed she was checking with someone about the septic

letter, but she did not return with any further information. Ms. Campbell told the

Millers that they did not have to close without the letter. Doris Freeman allegedly said

that the easement was sufficient to satisfy the septic letter contingency, and on that

assurance, the Millers went through with the closing.

Mrs. Miller died before 1993, when Mr. Miller put the property back on

the market. It was then he discovered that, even with the easement on Lot 12, the

health department would not approve the installation of a drain field to serve the

property. Without an adequate drain field, the property is not a suitable building site.

Mr. Miller sued the two agents for fraud, negligent misrepresentations,

and violation of the Tennessee Consumer Protection Act.1

II. Fraud

The essential element of a claim for fraud is an intent to deceive. Wilder

v. Tennessee Farmers Mutual Ins. Co., 912 S.W.2d 722, 726 (Tenn. App. 1995). We

do not think any trier of fact could infer that either of the agents intended to deceive

the Millers. Aside from the question of whether any representations at all were made

by these defendants at the closing -- which we will address in the next section of this

opinion -- there is no proof that anyone at the closing knew that the easement on Lot

12 would not allow the Millers to get a septic tank permit. If a party thinks he is stating

the truth, he is not liable for fraud even though the statement turns out to be entirely

false. Wynne v. Allen, 66 Tenn. 312, 316 (Tenn. 1874). He may be liable under
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some other theory, Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn. App.

1976), but actual fraud cannot be maintained under such circumstances.

III. Negligence

a. Negligent Misrepresentations

“One who, in the course of his business, profession, or employment, or

during a transaction in which he had a pecuniary interest, supplies false information

for the guidance of others in their business transactions, is subject to liability for

pecuniary loss caused to them by their justifiable reliance upon such information, if

he fails to exercise reasonable care or competence in obtaining or communicating the

information.” Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228 at 232 (Tenn.

App. 1976); Jasper Aviation, Inc. v. McCollum Aviation, Inc., 497 S.W.2d 240 (Tenn.

1972).

An essential element of this cause of action is the supplying of false

information for the guidance of others.

In this case, the cause of action is grounded on the allegation that either

or both of the agents supplied the Millers with the information that the easement on

Lot 12 would allow a septic tank to be installed on the property. We can find no proof

to that effect. Ms. Vaughn produced the easement but made no statements as to its

sufficiency. When she left the room, the Millers thought she was making a telephone

call trying to locate the septic letter. She did not return, and that is the last we know

of her in connection with the closing. Thus, we cannot find where she supplied any

erroneous information to the Millers.

The same is true with respect to the Millers’ own agent, Ms. Campbell.

She was present during the entire time of the closing, but she advised the Millers that
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they did not have to close because the contract had not been fulfilled. There is no

proof from which we could infer that Ms. Campbell supplied the erroneous information

that induced the Millers to close the transaction without getting the septic letter.

b. Breach of Duty

The plaintiff also alleges that the two agents breached a duty of care by

failing to confirm that having the easement made getting a septic letter a matter of

course. A breach of a duty owed to the plaintiff is at the core of a negligence claim.

Hastings v. Smith, 223 Tenn. 142, 443 S.W.2d 436 (1969).

As to Ms. Vaughn, we do not think she owed such a duty to the Millers.

Her duty was to her clients. She did not have a duty to the Millers to assure them that

the contract had been fulfilled.

It is a closer question with respect to Ms. Campbell, the Millers’ own

agent. Did she have a duty to speak up when her clients were told that the easement

satisfied the septic letter contingency? We are not prepared to say that as a matter

of law she had no duty in this instance. Although she had advised her clients that they

did not have to close, and we are satisfied that she did not know the lot could not be

built upon, would a reasonably prudent real estate agent from the area stand by when

someone else made a representation to her clients that negated her advice? We

think the plaintiff is entitled to a trial on that point.

IV. The Consumer Protection Act
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The Consumer Protection Act makes deceptive acts or practices

unlawful, Tenn. Code Ann. § 47-18-104(a). It also gives a private cause of action to

anyone harmed by an unfair or deceptive act or practice. Tenn. Code Ann. § 47-18-

109.

We have already noted that neither of these defendants had an intent

to deceive the Millers. While, for the purpose of the Consumer Protection Act, the

deceptive acts or practices do not have to be wilful or knowing, Smith v. Scott Lewis

Chevrolet, Inc., 843 S.W.2d 9 (Tenn. App. 1992), we do not think any trier of fact

could find that these defendants engaged in a deceptive act or practice. They did not

represent anything; they did not act in concert with anyone making any

representations. The most that can be said is that Ms. Campbell did not speak up

when she arguably had a duty to do so.

The judgment as to Ms. Campbell on the simple negligence claim is

reversed. As to all other claims the lower court’s judgment is affirmed. The cause is

remanded to the Chancery Court of Sumner County for further proceedings in

accordance with this opinion. Tax the costs on appeal one-fourth to Ms. Campbell

and three-fourths to the appellant.

________________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

WILLIAM C. KOCH, JR., JUDGE

_______________________________

WILLIAM B. CAIN, SPECIAL JUDGE