IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 12, 2010 Session

JOHN GALLON, ET AL. v. HARRY ELBERSON, ET AL.

Appeal from the Circuit Court for Sumner County

No. 29171-C C. L. Rogers, Judge

No. M2009-01667-COA-R3-CV - Filed November 30, 2010

The plaintiff home buyers filed suit against two home inspectors and a home inspection

company after discovering defects in the home that were not mentioned in the inspection

report. The court found that the defendants were negligent and granted the plaintiffs a

judgment for damages against the home inspectors and the inspection company, individually,

jointly and severally. The defendants argue on appeal that the judgment was not supported

by the evidence and that in holding them individually liable, the court pierced the corporate

veil without the proof of the extraordinary circumstances normally required for a court to do

so. We affirm the finding of liability and the judgment for damages, but we vacate the

judgment as to one of the individual defendants, because the evidence preponderated against

the trial court’s finding that he was in partnership with the other individual defendant.

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

Affirmed in Part, Vacated in Part

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Timothy T. Ishii, Nashville, Tennessee, for the appellants, Advantage Home Inspection and

Environmental Services, Inc., David Vaudrey, and Cameron Stokes.

Louis White Oliver, III, Hendersonville, Tennessee, for the appellees,John Gallon and Wife,

Sophia Gallon.
OPINION

I. A HOME INSPECTION AND SALE

John and Sophia Gallon (“the buyers”) were retired residents of California who

decided to move to Middle Tennessee. They retained a Tennessee real estate agent who

located a number of homes for them to look at. Among them were a lakefront home at 181

Lake Valley Road in Hendersonville, owned by defendants Harry and Winnifred Elberson

(“the sellers”). The Gallons came to Tennessee, briefly looked at several of the available

homes, and returned to California. In August of 2005, the Gallons entered into a contract to

purchase the Elbersons’ home for $575,000.

The sellers furnished the buyers with a Tennessee Residential Property Condition

Disclosure form. The disclosure form asked the sellers if they were aware of any

“defects/malfunctions” in a list of various areas of the house, and the sellers only checked

the box for windows. In the space for the explanation of such answers, they wrote in “some

windows.” An amendment to the contract of sale recited “seller to pay $2,000 towards

buyers prepaids and closing cost in lieu of window repair.”

In order to have a home inspection performed prior to closing, the buyers contacted

several home inspectors and ultimately retained defendants David Vaudrey and Cameron

Stokes (“the inspectors”) to do the job. Mr. Vaudrey inspected the home on August 25,

1

2006, and mailed a report to the buyers shortly thereafter. Among its other observations, the

report listed broken sills and rotted trim on two or three of the home’s windows. The report

also stated that the rock foundation under the home’s bay window “had been previously

repaired in a professional manner.” Mr. Vaudrey billed the buyers $421 for the inspection.

His fee was promptly paid.

The closing on the sale of the home took place on or about October 14, 2005. The

buyers moved into the residence about a week later. They discovered defects shortly

thereafter which were not cited in either the owners’ disclosure or the home inspector’s

report. These included a leaking roof, damaged ceiling drywall, non-functioning electrical

outlets, and exterior doors that could only be opened with difficulty. There were also

problems with the air conditioning system, the garage door openers, a garbage disposal unit,

and the intercom system. The buyers met with Mr. Stokes in hopes of getting him to agree

to repair the unreported defects, but the parties did not reach any kind of resolution. The

buyers then repaired some of the defects as their own expense.

The Gallons and the home inspectors reached agreement over the phone. They did not enter into 1

a signed contract.

-2-
II. COURT PROCEEDINGS

On October 12, 2006, John and Sophia Gallon filed a complaint in the Circuit Court

of Sumner County, naming Harry and Winnifred Elberson as defendants, as well as David

Vaudrey and Cameron Stokes, “[i]ndividually and doing business as Advantage Home

Inspection a/k/a Advantage Home Inspection and Environmental Services, Inc.” The

complaint listed eleven distinct defects that the plaintiffs alleged should have been disclosed

by the sellers and/or discovered by the inspectors, and asked the court for an award of

damages to repair those defects. The buyers’ theories of recovery included negligent breach

of the applicable standard of care for home inspectors in Middle Tennessee and fraud or

negligent misrepresentation by the sellers and by the inspectors.

The sellers answered the complaint on November 16, 2006. Since they have not

appealed the judgment of the trial court, we need not give much attention to those parts of

the record that only affect their interests. The inspectors filed a joint answer on February 16,

2007. They denied that their inspection was negligent, and they asserted that in any case Mr.

Vaudrey and Mr. Stokes were not individually liable because their “only involvement in the

matters at issue in this litigation was as agents/employees of Advantage Home Inspection.”

The trial was conducted on July 1, 2009. The buyers, the sellers and the inspectors

all took the stand, as did other licensed home inspectors and contractors. The plaintiffs

began their case by calling John Gallon, who testified among other things that he noticed on

the first day he moved into the house that the doorknob on the front door was stuck and could

not be turned, that the door could not be fully opened, that a set of French doors on the

second floor could not be opened and that some of the windows were defective and that

others were stuck shut. He testified that 11 out of the 21 windows in the house were

defective, and that he replaced all of the windows at a cost of about $15,000.

Sophia Gallon testified that the buyers replaced all the wooden windows with vinyl

because she wanted all of the windows to match, and that the house would have lost value

if she only replaced the defective windows. She also testified that soon after moving in she

noticed that the drywall in the cathedral ceiling of the entranceway had been patched.

According to her testimony, she asked two individuals to come to the house in November or

December of 2005 to look at the drywall, and she discovered at that time that there was a

crack in the roof. She also testified that Mr. Stokes told her that he was Mr. Vaudrey’s

partner.

Michael Roy, a roofing contractor, testified that he looked at the roof in March of

2006, and that he saw a major crack in the shingles on the front of the roof, through which

he could see the roof decking, and that “a home inspection certainly could see that.” He also

-3-
observed vertically cracked shingles on the back side of the roof. Mr. Roy testified that it

would cost $7,995 to replace the roof.

The buyers hired William Krause, a registered engineer and home inspector, to do an

independent inspection of the house, which he conducted on April 14, 2006. He testified as

to a number of defects that should have been reported in accordance with the detailed

Standards of Practice of the National Association of Certified Home Inspectors (“NACHI”).

Among other things, Mr. Krause observed that there was a gap between the dining room bay

window and the stone foundation that supported and surrounded that window. He ascribed

the gap to settling of the foundation, and he concluded that someone had attempted to repair

a gap below the window by filling it in with mortar, because he observed that there were

different colors of mortar in the mortar joints below the windows. He further testified that

the only way to properly fix the problem would be to stabilize the foundation, and that the

inadequate attempt at repair should have been readily observable and reported by a home

inspector. As we noted above, Mr. Vaudrey had reported that someone repaired the

foundation in a professional manner.

Mr. Krause used binoculars to examine the roof from the ground, and he observed a

crack in the roof that he testified should also have been reported. He also observed water

stains in the ceiling drywall below the same general area where the crack in the roof was

located. Additionally, he examined the electrical outletsin the house, found several that were

non-functioning or were not properly grounded, and marked them with red dots so an

electrician could identify them for repair. Mr. Vaudrey’s inspection report had stated that

“all accessible electrical fixtures,switches and outlets throughout the house were tested,” but

did not mention any problems with the electrical system.

The next witness to be called was Tom Sherry, who identified himself as a licensed

general contractor since 1971 and a licensed home inspector. He testified that he came to the

house at 181 Lake Valley Drive, looked at the repairs that had been made, and reviewed the

invoices and estimates for those repairs. Among other things, he stated that the $2,300 price

charged by a contractor to Tennessee to repair the foundation under the bay window was a

fair and reasonable price in Middle Tennessee, that $3,100 was a fair and reasonable price

for replacing, finishing and painting the sheet rock in the ceiling, and that $14,491 was a fair

and reasonable price for replacing all the windows in the house. He acknowledged that

$6,428 could be deducted from the $14,491 cost of replacing all the windows to account for

those that did not need replacement.

When Harry Elberson was called to the stand, he testified that he repaired the

damaged ceiling drywall while living in the house, and he acknowledged that he did not

mention the repair in the disclosure form. He stated that the drywall was not wet, but that

-4-
it just needed some cosmetic repair. He conceded that he did not disclose the defects that he

repaired, including using putty to fill in the gap between the settling bay window foundation

and the window itself, and repairing the foundation by patching it, because he believed that

his repair were adequate. He admitted that the front door was hard to open, but he stated that

he did not consider that to be a defect.

Randy Stokes testified that he worked about five hours a week for Advantage Home

Inspection and was paid a salary, but that Mr. Vaudrey was often unable to pay him. He also

testified that he had his own computer business. He denied that he was in a partnership with

Mr. Vaudrey or played any role in Advantage Home Repair other than as Mr. Vaudrey’s parttime employee and friend. He admitted that he may have referred to himself as Mr.

Vaudrey’s partner or as his “partner in crime,” but he said they were just buddies, and that

calling him a partner was just “a Southern thing.”

David Vaudrey testified that he was a licensed home inspector and that he followed

the applicable professionalstandards for such inspectionsset out by the National Association

of Certified Home Inspectors. He stated that he conducted the disputed inspection by

2

himself, without any assistance. He testified that he climbed up on the roof, but that there

definitely was no crack there, and he suggested that it must have appeared after his

inspection. He admitted that he noticed places that were patched with tar, but declared that

such patches were “not uncommon.” He also stated that he checked the outlets and the

windows that he could get to, but that because the sellers’ furniture was still in the house

when he did the inspection, he could not reach some of the windows or outlets for inspection.

“If I would have had to touch any furniture, then I would not have checked it.” He also said

3

that he checked the foundation, but did not see any problems.

4

The transcript actually quotes Mr. Vaudrey as stating that he followed the standards of the Nashville

2

Association of Certified Home Inspectors. This appears to be one of many obvious errors made in the

process of transcribing the proceedings.

Tennessee Code Annotated § 62-6-302(4)(B) provides that a home inspection report shall include

3

“[a] list of any systems or components that were designated for inspection in the standards of practice

adopted by the commissioner but that were not inspected.” Tennessee Code Annotated § 62-6-302(4)(C)

requires the inclusion of “the reason a systemor component listed under subdivision 4(B) was not inspected.”

Parts of David Vaudrey’s deposition testimony were read into the record, including testimony that

4

he did not inspect the rock foundation of the bay window.

-5-
At the conclusion of the proof, the trial court announced its decision from the bench,

which was memorialized in a Final Order filed on July 17, 2009. The court found that Mr.

Vaudrey had conducted a “lax and defective” home inspection, preventing the buyers from

making a properly informed decision about the purchase of the house. The court also found

that Mr. Vaudrey and Mr. Stokes were partners and that the existence of their partnership was

made known to the buyers. Turning to the sellers, the court found that they had failed to

disclose the defective electrical outlets and a non-functioning garbage disposal unit.

The court accordingly granted the buyers a judgment against the sellers and inspectors,

jointly and severally, in the amount of $265 for the electrical outlets and $294 for the

defective garbage disposal. The largest portion of the court’s award was, however, assessed

against the inspectors alone. The court found Mr. Vaudrey and Mr. Stokes to be liable,

“individually, severally, and doing business as Advantage Home Inspections,” for damages

in the total amount of $19,504, based on the enumerated repair costs for the foundation of

the bay window, the windows that had to be replaced, the roof, and the French doors on the

second floor. The court also found that the buyers had failed to mitigate their damages in

regard to the drywall, front door and lock, intercom and garage door openers, and declined

to award them damages for those items. This appeal followed.

III. ANALYSIS

A. The Standard of Review

Since this is a non-jury case, our review on appeal of the trial court’s findings of fact

is de novo with a presumption of correctness, unless the evidence preponderates otherwise.

Tenn. R. App. P. 13(d); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v.

Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court’s conclusions of law de

novo, with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn.

2006); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

5

Although notspecifically characterized as such in the complaint, the central claim in this case bears 5

all the hallmarks of a claim for professional malpractice. The plaintiffs state that the defendants “had the

duty to perform home inspections in a manner consistent with the standard of care for home inspectors

throughout the Middle Tennessee area,” and they claim that the defendants breached that standard of care.

The standards of the NACHI were introduced into the record, and a licensed home inspector was called as

an expert witness to testify both as to that standard and as to its breach. Perhaps the plaintiffs did not label

their complaint as one for professional malpractice because the Tennessee Home Inspector License Act of

2005, the most recent iteration of the licensing requirements for licensing of home inspectors, did not take

effect until July 1, 2006, eleven months after the inspection under dispute was conducted.

-6-
B. The Sufficiency of the Proof

The inspectors argue on appeal that the proof was insufficient to support an award of

damages against them. They base their argument on the standards of the NACHI, which

were placed into evidence by the buyers, and on the Tennessee Home Inspector License Act

of 2005, which largely incorporates those standards. In particular, they point to Tenn. Code

Ann. § 62-6-302(3)(A), which defines a home inspection as a “visual analysisfor the purpose

of providing a professional opinion of the condition of the residential building . . .” as the

basis for their argument that a home inspector should not be required to report anything that

is not “visually apparent.”

They also cite Tenn. Code Ann. § 62-6-302(3)(B), which states that “home

inspection”does not mean “a compliance inspection for building codes,” and that it “does not

mean any work that is within the scope of practice of architecture, engineering or landscape

architecture . . . ” Their argument is that since home inspections are not engineering tests,

they are limited to visual and non-invasive inspections of the premises on the date of

inspection. They conclude that since Mr. Vaudrey testified that he visually inspected the

foundation and roof in a non-invasive manner, he could not have been negligent and that he

therefore met the standard of care.

These arguments are belied by the fact that Tenn. Code Ann. § 62-6-302(3)(A) calls

for a professional opinion, and that other portions of the statute indicate that a proper home

inspection requires a level of expertise far beyond what is implied by the inspectors’

argument, including knowledge about heating, cooling, electrical and plumbing systems, and

about structural components of the house such as foundations and roof coverings. Further,

under the Tennessee Home Inspector License Act of 2005, an applicant for a home

inspection license must compete a ninety hour program or course of study before licensure,

Tenn. Code Ann. § 62-6-305(5), and must also pass a competency examination, Tenn. Code

Ann. § 62-6-305(6). As we noted above, buyers’ expert witness William Krause testified that

he found defects in the roof and in the foundation that should have been observed and

reported by a licensed home inspector in accordance with the Standards of Practice of the

NACHI.

The inspectors argue, however, that since Mr. Krause performed his inspection eight

months after they did theirs, his testimony as to those defects “is not conclusive proof that

the defects existed at the time of Appellants’ inspection or that the inspection was negligent.”

The trial court is not bound to consider only proof that is conclusive in and of itself. Its role

is to determine where the preponderance of that evidence lies by weighing all the relevant

evidence . See Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997); Realty Shop v. RR

Westminster Holdings, 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999); Cole v. Clifton, 833

-7-
S.W.2d 75, 77 (Tenn. Ct. App. 1992).

The interval between the inspections goes to the weight of the evidence presented, but

does not totally negate the probative value of the later inspection. To hold otherwise would

make virtually any claim based on evidence gathered on the ground after the event giving rise

to the claim impossible to prove. In sum, the evidence does not preponderate against the trial

court’s finding that the home inspection performed by Mr. Vaudrey was negligently done.

C. The Measure of Damages

The trial court based its award of damages on the cost of repairing the defects that Mr.

Vaudrey overlooked, but which a competent inspection would have revealed. The inspectors

point out that there are no Tennessee cases defining the proper measure of damages for a

negligent home inspection. They acknowledge that the cost of repair is the proper measure

of damages in cases involving faulty home construction. See GSB Contractors v. Hess, 179

S.W.3d 535, 539 (Tenn. Ct. App. 2005). They suggest, however, that such a standard may

6

be excessively harsh in home inspection cases, because unlike a contractor, a home inspector

is not in control of the facts giving rise to the lawsuit. As the inspectors wrote,“[h]ome

inspections, as opposed to contractors, or even invasive engineering studies do not, and

cannot, control the essence of the controversy, i.e., the elemental condition of the home.”

While this may be a valid point, any lesser measure of damages would not be

sufficient to make an injured plaintiff whole. “The purpose of assessing damages in a breach

of contract suit is to place the plaintiff, as nearly as possible, in the same position he would

have had if the contract had been performed.” GSB Contractors v. Hess, 179 S.W.3d at 541

(citing Wilhite v. Brownsville Concrete Co., 798 S.W.2d 772, 775 (Tenn. Ct. App. 1990)).

Where a home buyer has relied on the professional expertise of a licensed home inspector to

purchase a home, and as a result has had to bear the expense of repairing a defect that the

home inspector should have discovered, then the buyer must recover the cost of that repair

in order to be made whole.

In GSB Contractors v. Hess, the court actually held that the measure of damages for defective 6

performance of a residential construction contract will be the cost of repair unless repair is not feasible or

the cost of repair is disproportionate to the reduction in the value of the structure caused by the defective

construction. In the event that the cost of repairing the defect is disproportionately greater than the reduction

in the value of the structure, then the reduction in value may be used instead as the measure of damages.

GSB Contractors v. Hess, 179 S.W.3d at 543 (citing Redbud Cooperative Corporation v. Clayton, 700

S.W.2d 551 (Tenn. Ct. App.1985)). In this case, there was no proof presented of any reduction in the value

of the house from the undisclosed defects. In our discussion of the measure of damages in this case, we will

therefore only discuss the appropriateness of applying the cost of repair.

-8-
The inspectors argue that applying the same measure of damages to a faulty home

inspection as to a faulty construction job puts the whole profession of home inspection at

risk, because it can lead to virtually unlimited liability for a home inspector. We note,

however, that in drafting the Tennessee Home Inspector License Act of 2005, our legislature

apparently anticipated such a possibility and that it has taken steps to mitigate the risk. Tenn.

Code Ann. § 62-6-305(7) requires a licensed home inspector to obtain “a certificate of

insurance in an amount required by the commissioner for general liability as well as errors

and omissions to cover all activities contemplated under this part.” Under the current rules,

that amount is $500,000. Tenn. R. & Regs. 0780-5-12-.04(2)(g). We further note that a

home inspector may not be held liable for the cost of repairing defects that he discovers and

reports in the exercise of his professional expertise. Thus, using the costs of repair as the

measure of damages for a faulty home inspection is reasonable.

D. The Apportionment of Liability

The trial court found that Mr. Vaudrey and Mr. Stokes were partners in Advantage

Home Inspection, and it accordingly imposed joint and several liability upon the two men,

as well as upon the company. We have found very little evidence in the record, however,

to support a finding of partnership. Ms. Gallon testified that Mr. Vaudrey told her that he

was a partner with Mr. Stokes, and Mr. Stokes may have used that term after he met the

buyers. Mr. Stokes stated, however, that he worked for Mr Vaudrey, but denied that he was

in a partnership with him. He testified that Mr. Vaudrey was his buddy rather than his

business partner. Mr. Stokes also testified that he owned his own computer business, that he

generally only worked about five hours a week for Mr. Vaudrey, and that sometimes there

was not enough money to pay him.

While Mr. Vaudrey apparently asked Mr. Stokes to talk to the buyers about the defects

they discovered and to try to reach some kind of resolution with them, it is undisputed that

Mr. Vaudrey conducted the faulty home inspection by himself. There was no proof that Mr.

Stokes was licensed as a home inspector or that he was in any way responsible for the quality

of the inspection performed by Mr. Vaudrey. It appears to us that the evidence preponderates

against the trial court’s finding that Mr. Vaudrey and Mr. Stokes were partners, and there is

thus no basis for holding Mr. Stokes jointly liable to the buyers with Mr. Vaudrey. There is

also no other evidence to form a basis for apportioning any part of the damages to him.

The main thrust of the inspectors’ argument lies elsewhere, however. They contend

that they cannot be held personally liable for the faulty inspection, because at all times they

were agents or employees of Advantage Home Inspection, which they allege on appeal to be

a validly chartered corporation. They further argue that in holding them personally liable,

the trial court “pierced the corporate veil,” without proof of the elements required to take

-9-
such action. When we examine the record, however, we find very little in the way of

argument or evidence to support their position.

As we noted above, there was no written contract between the parties, and thus no

proof that the buyers knew, or should have known, that they were entering into a contract

with a corporation rather than with the individual they spoke to on the phone. The inspectors

also did not present any proof at trial that Advantage Home Inspection was a valid Tennessee

Corporation and in good standing with the Secretary of State.

It could perhaps be argued that by filing suit against “David Vaudrey and Cameron

Stokes, Individually and doing business as Advantage Home Inspection a/k/a Advantage

Home Inspection and Environmental Services, Inc.,” the buyers were tacitly acknowledging

that Advantage Home Inspection was a validly chartered corporation. It appears to us,

however, that since the heading of the invoice that was sent to the buyers reads “Advantage

Home Inspection & Environmental Services, Inc.,” the buyers were simply trying to make

sure that they did not fail to identify any possible defendant who might be liable to them. In

any case, they did not allege anything about the corporate status of Advantage Home

Inspection in the body of their complaint.

The inspectors had the opportunity to allege the existence of a valid corporation in

their Answer to the Complaint. However, they did not do so explicitly, by asserting that

“[d]efendants Vaudrey and Stokes must be dismissed as there is no basis for the Plaintiffs

to allege any individual theories of liability against those individuals whose only involvement

in the matters at issue in this litigation was limited by actions taken by them as

agents/employees of Advantage Home Inspection.”

As the inspectors point out, the official transcript of the trial of July 1, 2009 is

somewhat garbled. The inspectors’ attorney is quoted as saying in his opening remarks that

the individual defendants “have worked as agents to the corporation when it was in existence

throughout the entire time of this transaction going back to 2003.” Although it is not

reflected in the transcript, the attorney asserts that the court reporter omitted his explicit

statement that his clients could not be held individually liable unless the trial court pierced

the corporate veil.

In any case, there was no testimony at trial about the existence of a valid corporation,

piercing the corporate veil, or the question of individual immunity. The inspectors’ attorney

explains this omission by citing the following exchange between the court and the buyers’

attorney prior to the opening of testimony:

-10-
The Court: Is your complaint alleging fraud or misrepresentation as to the

home inspectors or is it just damages?

Mr. Oliver: No, I can’t prove fraud, Your Honor. So I will strike the fraud

claim.

The inspectors’ attorney assumed that in the absence of a claim of fraud or

misrepresentation, it would not be necessary for him to defend against the possibility that the

trial court could pierce the corporate veil to hold the inspectors individually liable for

negligently inspecting the Gallons’ new home. Of course, in the absence of proof as to the

existence of a valid corporation, there is no corporate veil that needs to be lifted. Also, while

fraud and misrepresentation are factors the courts may consider when determining whether

to disregard the corporate entity and hold individuals personally liable for actions taken in

the name of the corporation, they are not the only possible factors. See Oceanics Schools,

Inc. v. Barbour, 112 S.W.3d 135, 140 (Tenn. Ct. App. 2003) (setting out eleven factors,some

combination of which the courts typically rely upon in deciding such an issue).

At the conclusion of the proof, the attorneys for all the parties had the opportunity to

give closing arguments. None of the attorneys referenced anything involving the corporate

form of Advantage Home Inspection. Under the Rules of the Court of Appeals 6(a)(1) the

appealing party is required to provide written argument in regard to each error asserted on

appeal, as well as “a statement showing how such alleged error was seasonably called to the

attention of the trial judge with citation to that part of the record where appellant’s challenge

to the alleged error is recorded.” The inspectors’ attorney admits that he did not point out to

the trial court its purported error in apportioning liability as it did. He insists, however, that

he had no opportunity to call the court’s attention to its failure to consider the corporate

immunity of Mr. Vaudrey and Mr. Stokes, because “this error was announced at the close of

trial, without possibility of objection (other than a premature Tenn. R. Civ. P. 59 motion).”

Rule 59 gives a party the opportunity to bring errors to the attention of the trial court

before a judgment becomes final. Thus, the inspectors could have filed a Rule 59 Motion

to Alter or Amend the trial court’s order or a Motion for New Trial within 30 days of its entry

of the order. But no such motion was filed. Tenn. R. App. P. 36(a), which sets out the relief

available from the Court of Appeals and the other appellate courts of this state declares that

“[n]othing in this rule shall be construed as requiring relief be granted to a party responsible

for an error or who failed to take whatever action was reasonably necessary to prevent or

nullify the harmful effect of an error.” In light of the total lack of evidence in the record to

support the inspectors’ argument as to lifting the corporate veil, and their attorney’s failure

to call the trial judge’s purported error to his attention, we affirm the trial court’s holding that

David Vaudrey is personally liable for the negligent inspection he performed.

-11-
IV.

The judgment of the trial court as to the liability of David Vaudrey and Advantage

Home Inspection is affirmed. Its judgment as to the liability of Cameron Stokes is reversed.

We remand this case to the Circuit Court of Sumner County for any further proceedings

necessary. Tax the cost on appeal to appellants David Vaudrey and Advantage Home

Inspection.

_________________________________

PATRICIA J. COTTRELL, JUDGE

-12-