# FILED
June 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

ELMER R. KINNEY and w ife, ) VESTA L. KINNE Y, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9709-CV-00465 VS. ) ) Warren Circuit ) No. 6059 WAYMON H. HALE, ) ) Defendant/Appellee. )
APPEALED FROM THE CIRC UIT COURT OF WARREN COUNTY AT MCMINNVILLE, TENNESSEE THE HONORABLE CHARLES D.HASTON, JUDGE

CHARLES S. RAMSEY, JR. 114 North Spring Street Manchester, Tennessee 37355 Attorney for Plaintiff/Appellant B. TIMOTHY PIRTLE Third Floor, City Ban k Building McMinnville, Tennessee 37110 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J.- 2 - 

## O P I N I O N

In an action for breach of warr anty, misrepresentation, and negligent d esign or construction of a house, the C ircuit Court of Warren County gr an te d summary judgment to thevendor. On appeal the pu rchaser argues th at the trial judge mis-applied the law and overlook ed facts in the record that make s ummary judgment improper. We affirm the trial court.

I.

Waymon Hale, a licensed genera l contractor, built a house in Warren County for a family named Kuhr. The house was substantially completed in June of 1985, but Mr. Kuhr died before taking possession. In 1987, in the settlem ent of Mr. Kuhr’s estate, the house was deeded to Lenore H. Heidemann, Mr. Kuhr’s business partner.

Ms. Heidemann was also affiliated wi th Mr. Hale, and she deeded the house to the two of them jointly in December of 1987, at which time Mr. Hal e and his wife move d into the property.

While the property was still vacant in 1987, the plaintiff Mrs. Kinney looked at it but decided to bu y another resi dence in Coffee County. In 1990 Mrs. Kinney looked at the house again an d on Septem ber 21, 1990 signed a contrac t to purchase it for $100,000. Her husband also signed the contr act, although he was at that time in failing health. He died during the proceedings below. The contract contained a provision stating, “unless otherw ise specified herein this property is purchased ‘as is’ and neither the sell er nor agent makes or impli es any warranties as- 3 -

to the condition of thepremises.” TheKinneys took possession on or about October 17, 1990 under a warranty deed signed by Mr. H ale and Ms. Heidemann.

In December of 1990 and again in Febr uary of 1991, after a period of unusually heavy rainfall, Mrs. Kinney discov ered water standing ar

ound and under the house. She also said that the roof leak ed, especially around the chimney, and that chips began to fall from the brick siding. The Kinneys filed this action in June of 1991 against Mr. Hale and M s. Heidemann.

Mrs
. Kinney took a voluntary nonsui t as to Ms. Heidemann in June of 1996. Mr. Ha le fil ed a motion to dismiss in 1993, an d the parties filed vari ous evidentiarymaterial, including Mrs. Kinney’s affidavit and depos ition, an affidavit from Mrs. hale , and Mr. Hale’s deposition. The tri al judge treated the motion as one for summary judgment and grant ed the motion on October 30, 1996.

II. Breach of Warranty

Mrs. Kinney relies on the l imited warran ty established in Dixon v. MountainCity

Construction Co. , 632 S.W.2d 538 (Te nn. 1982). The Supreme Court, however, carefully limited the warranty recog nized in that case to rec ently completed dwel lings, an d t he

re ac h of t he

wa rr an ty on ly to th e i ni ti al ve nd ee s. 632 S .W. 2d a t 541. Perhaps more importantly , the warranty is implied onlywhen the written contract is silent. Id. at 542.

None of the conditions under which the warranty would arise are present in this case. Mr. and Mrs. Kinney were not the initial vendees; the house was built in 1985, and the Hales h ad lived in it for two years when it was transfer

red to the Kinneys; and the contract c ontained the “as is” lang uage.- 4 - Nor do we find in the rec ord any basis on which we could find an express warranty. In her affida vit, Mrs . Kinney ma kes on ly two assertions of fact bearing on this question. She say s that when she looked at the house in 1990 she asked Mrs. Hale if they (the Hales) had had any water standing around or under the house. Mrs. Hale stated that th ey had not had any water problems. She also said that in October of 1990, when Mr. Hale gave her a key to the house, he told her that the house was built for a man who had some kind of lung or breathing problems and that underneath the house and the brick had been tre ated to m ake it mo isture-proof.

In her depo sition M rs. Kinney said that when she looked at the house in 1987, the agent told her that th e house had been specially treated for dampness. She repeated the fact that Mrs. Hale tol d her in 1990 that they had not experienced any water problems and she r elated again how Mr. Hal e t old her when he gave her the key that the house had been spec ially treated for moistur e.

Mrs. Hale filed her affidavi t stating that prior to

the sale to the Kin neys she was not aware of any wa ter problems at the house. There is no proof in the record that prior to the sale, the Hales d id have any knowledge about water pro blems under th e house o r of any problem s with

a leaki ng roof.

A warranty is a r epresentation made “in such manner and circumstance s as to authorize the

buyer tounderstand that the seller i ntended to be bound by them as a part of the c

ontract of sal e and he mu st have purcha sed in reliance on them.” Wallacev. McCampbell , 156 S.W.2d 442 at 444 (Tenn. 1941). Measured by this standard, Mrs. Hale’s statement that they had not ex perienced any water ar ound or under the house cannot amount to a warranty. Mr. Hale’s alleged statement after the property had been deeded to the Kinneys could not have ha d any effect on the Kinne y’ s decision to make the purchase. Therefore, the Kinneys could not base a claim on e xpress warra nty.- 5 - III. Misrepresentations

We are satisfied that

the same facts compel a conclusion that Mr. Hale did not make any actiona ble misrepresen tations to Mrs. Kin ney concerning th e condition of the property. Relianc e is a key

element in an action for deceit -- w hether at law or in equity. See Haynes v. Cumberland Builders, Inc. , 546 S.W.2d 228 (Tenn. App. 1976). On the basis of this r ecord, the Kinneys could not ha ve relied on Mr. Hale’s rep resenta tion in ma king the d ecision t o purcha se the pro perty.

As to Mr s. Hale’s s tatemen t, there i s nothing in the rec ord from wh ic h an inference could be drawn that her s tatement wasfalse. S o far as t he record shows her statement that they had never had any water problems at the ho use was true. The water

problems sh owed up in F ebruary of 1 991 after some record rainfall in that month and in December of the prior year. If

in fact the water problems existed prior to the sale, there is no proof that M rs. Hale knew about them. See Gibbs v. Odell , 42 Tenn. 132 (1865).

IV. Faulty Design or Construction

Mr. Hale, as the builder, mig ht have been liable for the harm caused by design or construction defects in the house. But the legislatur e has placed an outside limit of four years after substantial completion on the right to recover for any injuries, to persons or property,resulting from the design o r construction. See Tenn. Code Ann. § 28-3-202. This house was subst anti ally complete in 1985. Therefore, this action, filed in 1991, comes too l ate.- 6 - The judgment of the t rial cou rt is affirmed and the cause is r emanded to the Circui t Court of Warre n County f or any fur ther proc eedings n ecessary. Tax the costs on appeal to the appellants.

____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE