1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court , with concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 1 

# FILED April 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_________________________________________________________________ JANICE P. LESLIE, ) Shelby County Circuit Court ) No. 72654 T.D. Plaintiff/Appella

nt. ) ) App. No. 02A01-9807-CV-00179 VS. ) ) HON. ROBERT L. CHILDERS, JUDGE CHARLES H. CALDWELL and ) PATRICIA J. CALD

WELL , ) AFFIRMED AND REMANDED ) Defendants/App

ellees. ) ) OPINION FIL

ED: Fred M. Ridolphi, Jr., HUMPHREYS, DUNLAP, WELLFORD, ACUFF & STATON, Memphis, Tennessee For Plaintiff/App

ellant. Joe W. Darden,

Memphis, Tennessee, for Defendants/Appellees Charles H. Caldwell and Patricia J. Caldwell
.

______________________________________________________________________________ MEMORANDUM OP

INION 1

______________________________________________________________________________ FARMER, J.

Plai ntiff Ja nice P. Leslie appeals the trial court’s judgment deny ing her claim for misrepresentationagainst Defendants/Appellees Charles H. and Pat ricia J. Caldwell and awarding the Caldwells the sum of $82,147 on their counterclaim against Leslie, plus attorney ’s fees in the amount of $6100. We affirm the trial court’s judgment based upon our conclusion that the evidence does not preponde

rate against th

e trial court’s f

indings of fact.

In March 1995, Leslie purchased a house from the Caldwells for the price of $92,000. Leslie made a down payment of $20,000. She executed a promissory note in favor

of the Caldwells for the remaining $72,000 of the purchase price, plus interest at the rate of seven percent (7%). The2 Leslie also su ed the various re

altors who were i

nvolved in the tran

saction and the ho

me inspector who insp

ected the house p

rior to the March

1995 sale; howeve

r, these defend

ants subsequently were dismissed from the lawsuit and are not parties to this appeal. 2 promissory

note, which was secured by a deed of trust on the property , r e quired Leslie to make monthly payments to the Caldwells in the a mount of $4 79.02 until March 1 , 1996, at which time Leslie was re

quired to pay

the balance of th

e principal, plus i

nterest.

I n connection with the sa le, the Cal dwells sign ed a disclos ure form ind icating t ha t they were not aware

of any sig

nificant defec

ts inthe home. Shortly

after moving int

o the house in May 1995, however, Leslie noticed mold and mildew growing

on the ceilings of

the house. Le

slie also observed water

dripping from light fixtures and down the insides of the windows. During the
summer of 1995, Leslie hired two engineers to inspect the

house and to advise her as to the best way to remedy the moisture problem inside the house. The engineers testified that the

roof of the house
was improperly

ventilated. One o

f the engin

ee rs also testified that water was seeping into the basement area through the exterior brick wall, and he blamed

the seepage pr imarily on poo r drainage andgrading around the foundation wall of the house. Leslie spent a substantial sum of money trying to remedy these problems.

In Sep tember 1995, Leslie filed a complaint against the Caldwells in which s h e alleged that the Caldwells

ha d misrepresented and/or failed to disclose the true condition of the home. 2 The Caldwells

answered the complaint and filed a counter-complaint against Leslie seeking to collect on the promissory note.

At trial, the engin

eers hired by

Leslie testif

ied that the home wa

s permeated with mold and mildew. T hey observ ed mi ldew stains on the home’s ceilings and walls, as well as on Leslie’s personal belong

ings. In thei

r respective opi

nions, the mold and mi

ldew problems wer

e so pervasive that they must have exist ed prior to the Caldwells’ sale of the home to Leslie in March 1995. Moreover, one of the engineers opined that the mold and mildew problemsdefinitely w

ould have been noticeable to the Caldwells prior to the sale of the home. The engineers testified that mold and mildew could be hidden by paint but that, over a pe

riod of months, the p

roblems again w

ould3

become noticeable.

The Cal dwe lls fla tly d eni ed ex peri enci ng an y mold or mil dew problems in the ir home prior to the March 1995 s ale. Their testimo

ny was corr

oborated by

other defense w

itnesses, including the home inspector who performed

the inspection for Leslie prior to her purchase of the house. Charles Caldwell

testified that he and his wifepurchased the ho me in May 1968 . Caldwell repeatedly

te stified that he never obs erved any mold or mildew probl

ems during the Ca

ldwells’ ownership

of the house. Caldwell acknowledged that he repainted the interior of the house in 1991, andagain in 1994 prior to listing it for sale, but he denied painting over any mo ld or mildew stains. Caldwell also acknowle dged that, in about 1985, he had a problem with water leaking into the home’s basement.

Caldwell

insisted that he remedied this problem, however, by recontouring the dirt in front

of the house and by installing oversized gutters and pipes to divert the water from the foun dation of the house. Afte r 1985, Caldwell did

not experience an

y more probl

ems with wate

r leaking into the house. Cald well blamed Le

slie’s problems

with the house oncertain modifications which she had made after

the purchase, such as removing shrubbery from the front of the house and moving one of the diverter pipes.

At the trial’s con

clusion, the trial c

ourt entered a ju

dgment in favor of theCaldwells. In orally announcing his decision from the bench, the trial judge found that Leslie had failed to carry her burden of proving

that the mold

and mildew problems existed prior to the March 1995 sale of the house. Ac cordin gly, the trial judge found that the proof failed “to indicate that ther e was any misrepresentation, either intentional or negligent, on the part of the [Caldwells].” The trial court’s judgment ordered Leslie to pay to the

Caldwells the bala

nce due on the pro

missory note

, plus interest and attorney ’s fees.

On appeal, Les

lie contends that th

e trial court err

ed in finding that she failed to carry her burden of proving her cla

im against

the Caldwells. Leslie acknowledges that this is a fact-driven
case and that this court’s review is governed by rule 13(d) of the Tenne ssee Rules of Appe llate Procedure. Rule 13(d) provide s that, in civil acti

ons, the appellate court’s review of the trial court’s findings of fact “shall be de novo upon the record of the trial court, accompanied by a presumption4

of the correctness of the finding, unless the preponderance of the evidence is otherwise.” Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984) (quoting T.R.A.P. 13(d)). Under this standard, when
a conflict in testimony requires the trial court to make a determinationregarding the credibility of
a witness or

witnesses, such a determination is “binding on the appellate court unless from other real eviden c e the appellate court is compelled to conclude to the contrary.” Hudson v. Capps , 651 S.W. 2 d 243, 246 (Tenn. App. 1983). Unless the evidence preponderates against the trial court’s findings, this court must affirm, absent an error of law. Dailey v. Bateman , 937 S.W.2d 927, 930 (Tenn. App. 1996).

Applying this standard, we conclude that we must affirm the trial court’s judgment in favor of

the Caldwe

lls. We agree that Leslie, through both lay and expert testimony, presented strong circumstantial e

vidence that the m

old and mildew prob

lems in the house

preexisted the March1995 sale of the house and, further, that the Caldwells either knew or should have known of t hese problems. Nevertheless, the Caldwells testified unequivocally that such mold or milde w problemsdid not exist during their own ersh ip of the house, an d their witnesses c

orroborated this testimony. The

trial court resolved this conflict in testimony in favor of the Cald wells. Alt hough the trial court

instead could have accepted Leslie’s version of events, the court was not required to do so, and our review of the evidence does not compel us to reach a contrary conclusion.
As our supreme co

urt has reminded u

s,

Where the trial judge has seen and heard witnesses, especially whe re issues of credibility and weight of oral testimony a re involved, on review con sid erable defere nce must still be ac

corded to those circumstances. Humphrey v. David Witherspoon, Inc. , 734 S.W.2d 315 (T enn . 1987). Where the issue for decision depends on the determination of the credibility of witnesses, the trial court is the best j udge of the credibility and its findings of credibility ar e entitled t o great weig ht. This is true because the trial court alone has the opportunity

to observe the appearance and the d e meanor of the witnesses. Royal Insurance Co. v. All i ance Insurance Co. , 690 S.W.2d 541, 543 (Tenn. App. 1985).
Tenn-Tex Properties v. Brownell-Electro, Inc. , 778 S.W.2d 423, 425-26 (Tenn. 1989).5 The trial court’s judg

ment is affirmed,

and th is cause i s remanded for further pro ceed ings . Co sts of t his app eal are t axe d to Lesl ie, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)