### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MARCH 8, 2001 Se ssion KATHRYN DARDEN v. BRADLEY SENSING, ET AL 

### . Direct Appeal from the Chancery Court for Davidson County No. 97-2532-III; The Honorable Ellen Hobbs Lyle, Chancellor

No. M2000-01519-COA-R3-CV - Filed July 27, 2001

This appeal arises from the Appellant’s purchase of a house and property owned by the Appellees. Following the purchase, a la nds lid e occ urr ed o n th e pro pert y. The Appellant filed a complaint in the Chancery Court of Davidson Co

unty seeking

compensatory

damages a

gainst th e Appellees for fraud, intentional misrepresentation, negligent misrepresentation, breach of warr anty, brea ch of contract, deceit, and violation of the TennesseeConsumer Pro tection Act. Following a jury trial, the jury entered a verdict in favo

r of the Appellee

s. The Appellant filed a motion for a new trial. The trial court denied the m

otion for a new tri

al.
The Appellant appeals the jury verdict in favor of the Appellees and the de nial of the motion for a new trial by the Chancery Court of Davidson County . For the reasons stated herein, we affirm the trial court’s decision.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the cou rt, in whic h W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , joined. Larry L. Cra

in; Clinton W. Watkins, Brentwood, TN, for Appellant W. Gary Blackburn; John R. Callcott, Nashville, TN, for Appellees
OPINION I. Facts and Procedural History

In 1985, the Appellee, Bradley Sensing (“Mr. Sensing”) purchased property upon which he constructed

a single family

homelocated at

7921 Saddle Ridge Trace, Nashville, Tennessee 37221 (“the Saddle Rid ge property” or “th e property”). Th e Saddle Ri dge property consists of a 1.9 acre lotsituated on a steep hill with a one and one-half stor y house loca

ted on the upper pa

rt of the hill.-2-

On May 12, 1994, Mr. Sensing tran sferred the property to the Appellee, Air

Affiliates, I

nc. (“Air Affiliates”), a Tennessee corporati on of which Mr. Sensing is president. Air Affiliates rented the Saddle Ridge property back to Mr. Sensing at which he continued to reside

. The Appellant, Kathryn E. Darden (“Ms. Darden”), considered

purchasing t he Saddle R idge property and visited the property on several occasions. On February 18, 1995, Mr. Sensing signed
a Tennessee Residential Property Condition Disclosure form and provided the form to Ms. Darden. The form asked wh ether Mr. Sensing, as seller, was aware of “any settling from any cause, or slippage, sliding, or other soil problems.” Mr. Sensing checked “no.” The form asked whether he
was aware of “any flooding, drainag e, or grading problems.”Mr. Sensing checked “no.” The form also asked whether he

was aware of “

major property

or structural damage from . . . landslides.” Mr. Sensing checked “no.” On March 7, 1995, Mr. Sensing entered into a contract with Ms. Darden for the sale of the Saddle Ridge property in the amoun t of $196,500.00. Revisions were made to the contract on March 8 and March 16, 1995 . On April 17, 1995, Mr. S ensing transfe rred ownership of the property to Ms. Darden.
On March 13, 1997, following a h eavy rain, a land slide occur red on the S addle Ridge pro pert y. Ms. Dardenclaims that the gr ound cracked ap

proximately f

ive feet from the

sidewalk in front of her home at the

nearest point and dropped approximately one foot at the crack. A ridge of dirtformed approximately 175 feet downhill. The area of the land

slide constituted a

pproximately 100 feet by 175 feet. The landslide caused

a part of the driv

eway to cr

umbleaway and created an accordian effect along the entire front of the lawn. Ms. Dardenobtained several estimates regarding the cost to repair the property ranging from $52,0 00.00 to $300,000.00. Ms. Darden retained the services of Dr. Ron Jones (“Dr. Jones”), a civil engineer specializing in the evaluation and cause of g eological movement. The tota l cost Ms. Darden p

aid to Dr. Jones to re

pair th e property wa s $73,500.00.
On July 30, 1997, Ms. Darden filed a complaint in the Chancery C

ourt of Davidson Co

unty seeking compens atory damages against Mr. Sensing and Air A ffiliates for fraud, intentional misrepresentation, negligent misrepresentation, breach of warranty, breac h of contract, deceit, and violation of the Tennessee Consumer Protection Act. On September 26, 1997, Mr. Sensing and Air Affiliates filed an answer and a motion to dismiss for failure to state a claim upon which relief can be granted. On

November 18, 1997 , the trial court de nied Mr. Sensing a

nd Air Affiliates’ motion to dismiss. On September 21, 1998, Mr. Sensing and Air Affiliates filed a moti on for partial summary judgment. The trial court denied Mr. Sensing and Air Affil iates’ motion for partial summary judgment.
The jury trial commenced on January 31, 2000. At the close of Ms. Dar den’s proof, Mr. Sensing and Air Affiliates moved for a directed verdict . The trial court denied the motion for a directed verdict. On February 3, 2000, the jury returned a

verdict in favor of Mr. Sensing and Air Affi lia tes , fi ndi ng sp eci fic all y: 1) Ms. Darden failed to prove by clear and convincing evide nc e that Mr. Sensing and Air Affiliates intentionally or recklessly misrepresented a past or existing material fact regarding the real-3-

estate that was sold to Ms. D arden with the inte

ntion that Ms. Dard en would rely on that misrepresentation. 2) Mr. Sensing and Air Affiliates did not misr epresent a past or existing material fact regarding the real estate that was sold to Ms. Darden without exercising reasonable care

to determine its truth and with the intention that Ms. Darden would rely on that misrepresentation. On M arch 15, 2000, Ms. Darden filed a motion for a new trial. On May 23, 2000, the trial cour t entered an order denying the motion for a new tria l. This appeal followed.
II. Standard of Review
Our standard of revi

ew as to findings of fa ct by a jury in a civil action is l

imited to det ermining whether there is any material evidence to support the verdict. See T ENN

. R. A PP

. P. 13(d). Appellate courts do not determinethe credibility of witnessesor weigh evidence on appeal from a jury verdict. See Pullen v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn. Ct. App.1992) (citing Crabtree Masonry Co. v. C & R Constr., Inc. , 575 S.W.2d 4, 5 (Tenn. 1978)). A judgment based on
a jury verdict will not

be disturbed on appealwhere the record contains material evidence supporting that verdict. See Reynolds v. Ozark Motor Lines, Inc

. , 887 S.W.2d 822, 823 (Tenn. 1994). III. Law and Analysis The following issues are presented for our review: 1) Whether there

is any mater

ial evidence to su

pport the jury

verdict; 2) Whether the tria

l court erred in d

enying Ms.

Darden’s motion f

or a new trial; 3) Whether the common law claim for negligen

t misrepresentat

ion was barred by

the one yea

r statute of limitations impose

d by the Tenn

essee Residentia

l Disclosure Act; 4) Whether the Tenne

ssee Consumer Prot

ection Act applie

s to the sale of

a home by an entity not in the business of buying and selling real estate; and 5) Whether Ms. Dar

den’s appeal is f

rivolous. We will examine each of these issues in turn. Jury Verdict
The first issue presented for our review is whether there is any mate rial evidence to support the jury verdict. Ms. Darden argues that there was no material evidence to support the jury verdict in favor of

Mr. Sensing and Air Affiliates. When jury trials are involved, our task is to determine whether there is any material evidence to support the jury ’s verdict. See Harper v. Wat k ins , 67 0 S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson , 588 S.W.2d 315, 317 (Tenn. Ct. App. 1979); see also

T ENN

. R. A PP

. P. 13(d). In reviewing evidence, we a

re required to

“take the strong

est legitimate view of all the evidence to up hold the verdict, t o assume the truth o

f all that tends to support it, to d isc ard a ll t o th e con tra ry, and to allow all re asonable infere

nces tosustain the verdict.” Lassetter , 588 S.W.2d at 317 (quot ing D. M. Rose & Co. v. Synder , 206 S.W.2d 897, 901 (Tenn. 1947); Kidd v. Dunn , 499 S.W.2d 898, 900 (Tenn. Ct. App. 1973)). Appellate cour ts do not determine the credibility of witnesses or weigh evidence on appeal fr oma jury verdict. See Pullen-4-

v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn. Ct. App. 1992) (cit ing Crabtree Masonry Co. v. C & R Constr., Inc. , 575 S.W.2d 4, 5 (Tenn. 1978)). The w eight, faith, and credit to be given to any witness’s testimony lies in the first instance with the trier of fact, and thecredibility

accorded will be given great weight by

the appellate court. See Sisk v. Valley Forge Ins

. Co. , 640 S.W.2d 844, 849 (Tenn. Ct. App. 1982).
Over the course of the trial , eight witnesses testifie d as to their obser

vations of the Sadd

le Ridge property bo

th before and af

ter the landslide.

The witnesses als

o answered ques

tions pertainin

g to potential knowledge of a prior la ndslide or concealmen t of that kn owledge by Mr. S ensing. Mr. Sensing testified that, during construction on the Saddle Ridge property home in 1985, trees were removedfrom the property which caused soil erosion. Without the trees, the rain tu

rned the loose dirtto mud which washed down the hill. Mr. Sensing lined bales of hay along the bottom of the ya rd to prevent the mud from washing into the street. Mr. Sensing testified that, once he planted a good stand of grass, the erosion stopped by the summer of 1987. Mr. Sensing testified that another erosion problemoccurred someti

me between 1986 to

1988 when the erosion rolled up and formed a mound that measured approximately two feet by twenty -five feet. The mound w

as approximately

six inches in height. Mr. Sensing testified that he covered the mound with grass seed. Mr. Sensing testified that he discussedwith Ms. Darden a drainage ditch and standing water in the backy ard. Mr. Sensing testified that he never disc ussed with

Ms. Darden the er

osion problems

or the mound because it was
no longer a problem. Mr. Sensing testified that he saw nothing to indicate there had been a landslide on the property.

Ms. Darden testified that, prior to the purchase of the Saddle Ridge property , she was concerned

with standing wat

er in the backy

ard and a gully

in the side of th

e yard. Ms. Darden testified that Mr. Sensing downplayed these problems as insignificant. Ms. Darden testified that Mr. Sensing told h er that he had not had any erosion. Ms. Darden testified that she relied on Mr. Sensing’s verbal and written assurances concerning the property . Ms. Darden testified that, had she known of the erosion pro

blems, she would ha

ve called in

a land specialist prior to the purchase. Ms. Dardentestified that, shortly after she moved onto the Saddle Ridge property , she fou nd Jimm y Prince (“Mr. Prince”), the lawn mower for Mr. Sensing, mowing her lawn. Mr. Prince pointed out to her the mound at the

foot of the hill. Ms. D

arden testified t

hat, before she bought the house, she
was aware of

an indenture or ridge-like place on the property, but she did not know what it w

as. Ms. Darden testified that she never asked Mr. Sensing whether a landslide had occurred.

Mr. Prince testified that he saw the mound at the foot of the hill of the Sad dle Rid ge pr ope rty. Mr. Prince testified that Mr. Sensing told him

that the mound occurred one or two years before Mr. Prince began mowing the lawn, approximately 1989 or 1990. Mr. Prince testifi ed that, prior to Ms

. Dardenpurchasing the property, he never saw a crack on the property like that which occurred after the landslide.
Linda Reed (“Ms. Reed”

) lived directly

across the stree

t from the Saddle Rid

ge property

. Ms. Reedtestified that she observed mud was hin g int o th e st reet fro m Mr . Se nsi ng’s pro pert y. Ms. Reed described the mud a s a swell “ like a wave coming down the hill.” Ms. Reed testified that she-5-

obse rvedsoil accumulating at the bottom of the hill sometime between 1992 to 1994. Ms. Ree d test ified that she never saw a crevice or a crack on the property , and she was not

aware of an y landslides occurring while Mr. Sensing owned the property.

Dr. Jones testified that evidence of previous movement is an important predictor with regard to property as to whether there may be a future landslide. Dr. Jones t estified that examples of previous movement would be “old scars from the escarpment where tensions c

racks had opene

d in the past. There might be tilted trees, hummocky ground where y ou see old rollovers and things of that type.” Dr. Jones testified that it takes experi

ence to know ge

ology and t

opographic

features in order to evaluate whether property could experience a landslide. Dr. Jones tes tified that he saw a majo r escarpment, or crack, in the ground when he examined the Saddle Ridge proper ty for Ms

. Darden. Dr. Jones testified that he saw no sign of a prior escarpment. Dr. Jones testified that “not too many untrai

ned people would k

now what to

look for” to predict a landslide. Finally, Dr. Jones testified: Q. Now, when y ou – you wer

e describing a

moment ago how the

se landslides take place. Did I understand you cor rectly . . . Dr. Jones, that the water sa

turates down thro

ugh this porous soi

l until it reaches the rock surface below? A. U nti l it reac hes som e im perm eabl e la yer wh ich may b e a cl ay layer or a bedrock lay

er. Q. So this is not the same thing then as wash, erosion on the surface? A. That’s correct. It’s something that’s happening below g round. Q. So this property could have – say they took trees off the side of that hill and then it rained before the grass had set in and washed mud and stuff down into

the street. That’ s not a landslide, is it? A. No. That would be

a surface eros

ion problem.
John Lucas (“Mr. Lucas”), a home builder, built the Saddle Rid ge property home. Mr. Lucas lived next door to Mr. Sensing until 1989. Mr. Lucas tes tified that he saw

nothing to indicat

e that there had been a landslide on Mr. Sensing’s property. Jerry Blair (“Mr. Blair”), a real estate agent, repre sentedMr. Sensing in the sale of theSaddle Ridge property to

Ms. Darden. Mr. B lair inspected the property pr

ior to put ting it on the mark et. Mr. Blair testified t

hat he saw normal

wash, or soil depos

its, at the bottom of t

he hill. Mr. Blair testified that Ms. Darden commented on the wash when viewing the Saddle Ridge property

. Tracy Hogan (“Ms. Hogan”) , the former wife of Mr. Sensing, resided on the Saddle Rid ge property until 1991. Ms. Hogan testified that, after soil erosion occurred as a result of removing the trees, “the yard neve

r washed, s plit, or did anything else after that. It stay ed intact.” Ms. Hogan testified that she saw no evidence of a landslide on the property.-6-

We have reviewed the evidence using the proper standard of review and have determined that there is mat e rial evidence to support the jury verdict. Accordingly , we decline to disturb the jury verdict on appea

l.
Motion for a New Trial
The second issue pre

sented for our re

view is w hether the trial c ourt erred in den

ying Ms. Darden’s motion for a new tr ial. Following th

e jury verd

ict, Ms. Darden filed a

motion for a new trial in which she argued that the jury verdict was contrary to the weight of theevidence. The trial court denied the motion for a new trial without comment. A motion for a new trial requires the trial judge to perform the function of thirteenth juror

. See Ridings v. Norfolk S. Ry. Co. , 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). As the thirteenth juror, “the trial judge is und er a du ty to independently

weigh the evidence and determine whether the evidence preponderates in favor of or against the verdict.” Shivers v. Ramsey , 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996). The decision to grant or deny a motion for a new trial is largely within the trial court’s discretion. See Mize v. Skeen , 468 S.W.2d 733, 736 (Tenn. Ct. App. 1971). Where the trial judge has approved the jury’s verdict, our standard of

review is whether there is any material evidence to support the verdict. See T ENN

. R. A PP

. P. 13(d). We must presume that the trial judge adequately performed her func tion as thirteenth jury when, as in the case at bar, she simply approves a jury verdict without comment when ruling on a motion for a new trial. See Sholodge Franchise Sys., Inc. v. Mc Kibbon Bros., Inc. , 919 S.W.2d 36, 41 (Tenn. Ct. App. 1995). After reviewing the record as a whole, we find that the trial judge properly pe

rformed her duty

as thirteenth juror

and that there is material evidence to support the jury’s verdict. Accordingly, we find the trial court did not err in deny ing the motion for a new trial.
Statute of Limitat ions
The thir d issue presented for our review is whether the common law claim for negligent misrepresentation was barred by the one y ear statute of limitations under the Tennessee Residential Disclosure Act. Because we find that there is material evide

nce tosupport the jury verdict and that the trial court

did not err in denying the motion for a new trial, we decline to address Mr. Sensing and Air Affiliate

s’ issue relating

to the statute of limi

tations.
Tennessee Consumer Protection Act
The fourth issue presented for our review is whether the Tennessee Consumer Protection Act applies to th e sale of a home by an entity not in the business of buy ing and selling real estate. Because we find that there

is material evide

nce tosupport the jury

verdict and that t

he trial court did noterr in denying the motion for a new trial, we decline to addre ss Mr. Sensing and Air Affiliate s’ issue relating to

the Tennessee Co

nsumer Protection

Act.-7- Frivolous Appeal The fifth issue presented for our review is whether Ms. Darden’s appeal is frivolous under section 27 -1-122 of

the Tennessee Code. Tennessee law permits any reviewing court to award damages for a

frivolous appeal : When it appears to any reviewing court that the appeal from a ny court of record was frivolous or taken solely for delay , the court may, either upon motion of a party or of its own motion, awar d just damages against the appellant, which may include, but need not be limited to, costs, interest on the judgment, and expenses incurred by

the appellee as a

result of the appe

al.

T ENN

. C ODE A NN . § 27-1-122 (2000).

A frivolous appeal

is one that is devoid

of merit or has no reasonable c hance of succeeding. See Combustion Eng’g, Inc. v. Kennedy , 562 S.W.2d 202, 205 (T enn. 1978); Davis v. Gulf Ins. Group , 546 S.W.2d 583, 586 (Tenn. 1977); Jackson v . Aldridge , 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); Industrial Dev. Bd. v. Hancock , 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). Determining whether to award damage

s based on a frivo

lous appeal is a

discretionary decision. See Banks v. St. F rancis Hosp. , 697 S.W.2d 340, 343 (Tenn. 1985).

Mr. Sensing and

Air Affiliates argue that this Court should award reasonable attorney ’s fees andcosts because Ms. Darden’s appeal is frivolous. We do not deem this to be an approp

riate case for imposition of sanctions for a frivolous appea

l and, therefore

, respectfully

deny Mr. Sensing and Air Affiliates’ request in this regard.
IV. Conclusion

For the foregoing reasons, the decision of the trial court is

affirmed. Costs of this appeal are tax ed ag ain st t he A ppe lla nt, Kat hryn E. D arde n, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE