IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 1, 2022

DAVID SIMPKINS ET AL. v. JOHN MAHER BUILDERS, INC. ET AL.

Appeal from the Chancery Court for Williamson County

No. 20-CV-50050M James G. Martin, III, Chancellor

___________________________________

No. M2021-00487-COA-R3-CV

___________________________________

In this action concerning a newly-constructed home, the plaintiffs asserted, inter alia, 

claims of breach of contract, breach of warranty, fraud, intentional misrepresentation, 

fraudulent concealment, negligence, and unfair and deceptive business practices by the 

defendant construction company and its owners. The trial court granted a motion to 

dismiss filed by the defendants based upon expiration of the three-year statute of 

limitations applicable to claims of injury to real property. We determine that although 

the trial court properly applied the three-year statute of limitations to the plaintiffs’ 

claims of injury to their real property, the trial court improperly determined that the 

doctrine of fraudulent concealment would not apply to toll the accrual of such limitations 

period concerning the plaintiffs’ claims for damages caused by the defendants’ failure to 

seal the utility penetrations beneath the home, a fact which allegedly was concealed by 

the defendants. We also determine that the plaintiffs stated claims of breach of contract, 

including breach of any express or implied warranties provided by the contract, and that 

the trial court improperly dismissed these claims based on the incorrect statute of 

limitations. We therefore vacate the trial court’s dismissal of the breach of contract and 

contractual warranty claims, as well as the claims based on the defendants’ failure to seal 

the utility penetrations, and we remand those claims to the trial court for further 

proceedings consistent with this opinion. We affirm the remaining portion of the trial 

court’s judgment in its entirety. 

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

Affirmed in Part, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

David Simpkins and Sally Simpkins, Spring Hill, Tennessee, Pro Se.

05/04/2022
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J. Paul Brewer, Nashville, Tennessee, for the appellees, John Maher Builders, Inc.; John 

Maher; and Tony Maher.

OPINION

I. Factual and Procedural Background

The plaintiffs, David and Sally Simpkins (collectively, “Plaintiffs”), filed a pro se 

complaint on December 30, 2020, in the Williamson County Chancery Court (“trial 

court”) against John Maher Builders, Inc. (“JMB”); John Maher; and Tony Maher 

(collectively, “Defendants”). Plaintiffs averred that on August 4, 2017, they had 

purchased real property with a newly constructed home in Spring Hill, Tennessee, built 

by Defendants. Plaintiffs asserted that this home was improperly built and contained 

both construction defects and substandard building materials, which caused the home to 

be “infested with mold and other microbial growth.” Plaintiffs claimed that as a result of 

their exposure to mold and other toxins in the home, they had suffered numerous health 

issues, resulting in medical expenses and a loss of income.

In their complaint, Plaintiffs averred that Defendants should be held liable for, 

inter alia, claims of breach of contract, breach of warranty, fraud, intentional 

misrepresentation, fraudulent concealment, negligence, and unfair and deceptive business 

practices. Plaintiffs sought damages in excess of ten million dollars, in addition to preand post-judgment interest, revocation of JMB’s contractor’s license, and injunctive relief 

preventing Defendants’ involvement in the building industry, among other things. 

Plaintiffs attached exhibits to their complaint numbering hundreds of pages, which 

included home inspection and other reports as well as affidavits executed by Plaintiffs. 

Plaintiffs also filed a uniform civil affidavit of indigency.

On January 27, 2021, Plaintiffs filed an “Emergency Motion for Injunctive Relief 

and Permanent Monetary Injunctive Relief or Default Judgement and Memorandum,” 

asserting that no disputed material facts existed and requesting that the trial court grant 

them immediate relief. Plaintiffs included that in addition to their health problems, they 

were being threatened with imminent foreclosure on their mortgage loan. The trial court 

entered an order regarding the motion on January 29, 2021, stating in pertinent part:

Plaintiffs’ claims are governed by Tennessee law and the procedure 

for handling this matter is governed by the Tennessee Rules of Civil 

Procedure. The Plaintiffs seek immediate relief without affording the 

Defendants an opportunity to be heard. The Plaintiffs have tendered a 

proposed Order suggesting that the Court grant such relief including a 

judgment against the Defendants for a sum in excess of $3 million together 

with treble damages in excess of $9 million. The Court has no authority to 

grant such relief under Rule 65 of the Tennessee Rules of Civil Procedure 
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or any other rule contained therein. Accordingly, Plaintiffs’ application 

shall be, and is hereby, denied.

On February 8, 2021, Defendants filed a motion to dismiss, pursuant to Tennessee 

Rule of Civil Procedure 12.02(6), asserting that Plaintiffs’ complaint failed to state a 

claim upon which relief could be granted. Defendants posited that Plaintiffs’ claims were 

barred by the applicable statute of limitations, codified at Tennessee Code Annotated § 

28-3-105, which provided that “[a]ctions for injuries to . . . real property” “shall be 

commenced within three (3) years from the accruing of the cause of action.” Defendants 

maintained that Plaintiffs’ allegations of fraud and misrepresentation were also subject to 

a three-year statute of limitations, relying on Med. Educ. Assistance Corp. v. State ex rel. 

E. Tenn. State Univ. Quillen Coll. of Med., 19 S.W.3d 803, 817 (Tenn. Ct. App. 1999). 

Defendants argued that because Plaintiffs had acknowledged in their complaint that they 

had become aware of the mold problems in the home in August 2017, their claims filed in 

December 2020 were untimely. 

On March 9, 2021, Plaintiffs filed a response, objecting to Defendants’ motion to 

dismiss and seeking to have the motion to dismiss stricken. Plaintiffs asserted that they 

had actually filed thirteen separate claims with various dates of discovery and statutes of 

limitations applicable to each. Plaintiffs again asked the trial court to issue a final 

judgment in their favor. On March 15, 2021, Plaintiffs restated their response to the 

motion to dismiss and their request for immediate relief as an “Emergency Motion.” 

The trial court conducted a hearing concerning the motion to dismiss on March 23, 

2021, considering arguments from Plaintiffs and Defendants’ counsel. The court 

subsequently entered an order on April 5, 2021, stating in pertinent part:

The Court finds that this matter concerns the alleged damage to Plaintiffs’

real property and, as such, the statute of limitations that controls is Tenn. 

Code Ann. § 28-3-105 which provides three (3) years for the filing of an 

action based upon damage to real property. The Court finds that Plaintiffs’

Complaint shows that Plaintiffs were aware of the alleged damages and that 

the causes of action accrued in August of 2017. The Plaintiffs did not file 

this matter until December 30, 2020. As such, Plaintiffs failed to file their 

Complaint within the required three (3) year statute of limitations of Tenn. 

Code Ann. § 28-3-105. Thus, Defendants’ Motion is well taken and it is 

hereby GRANTED. 

The trial court accordingly dismissed Plaintiffs’ complaint with prejudice.

Meanwhile, on March 30, 2021, Plaintiffs filed a motion seeking relief from the 

trial court’s judgment pursuant to Tennessee Rule of Civil Procedure 60.02. Plaintiffs 

claimed that the trial court had failed to consider all of Plaintiffs’ alleged causes of 
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action. On April 6, 2021, the trial court entered an order concerning Plaintiffs’ motion 

wherein the court stated that because the April 5, 2021 order was not final, the court 

would construe the motion to be a Rule 59 motion. The court acknowledged Plaintiffs’ 

argument that the court had failed to consider matters filed in their amended response to 

the motion to dismiss. Further acknowledging that it had not yet seen or considered

Plaintiffs’ amended response at the time of its ruling, the court directed Defendants to file 

a reply to Plaintiffs’ amended response within ten days, at which time the court would 

either rule based on the pleadings or set the matter for further hearing. Defendants 

subsequently filed a reply maintaining that the trial court’s ruling should stand.

On April 20, 2021, Plaintiffs filed a motion seeking to “Vacate Void Judgment for 

Fraud on the Court and Deprivation of Plaintiffs’ Constitutional Rights.” Plaintiffs 

argued, inter alia:

On March 23, 2021, a Hearing was conducted by the Court which 

allowed only very brief arguments from the Plaintiffs. Defendants make 

alleged fraudulent claims and statements that misrepresent the facts and 

truths thereby presenting fraud on the Court, information which the Court 

used as the premise for its dismissal. Plaintiffs are restricted from 

presenting their complete argument to make all case points that had been 

legally argued in the written motion, and the Court makes a ruling in favor

of the Defendants based on misrepresentation of the law and facts by the 

Counsel for the Defendants. The erred ruling showed distinct bias for the 

Defendants and violated the Plaintiffs[’] Rights. Plaintiffs attempt to 

address in the Hearing the erroneous claims by the Court and the Court[’s]

singular view of a “tort” claim under a single statute. This was a complete 

misrepresentation of the facts of the Plaintiffs[’] thirteen (13) separate 

claims with different statutes of limitations, and different statutes and 

authorities proving the Plaintiffs[’] claims against the Defendants and 

numerous alleged frauds, code violations, Breach of Contract, Breach of 

Warranty, Breach Of The Covenant Of Good Faith And Fair Dealing, 

Fraud - Constructive, Fraudulent Concealment, Fraudulent Inducement, 

Intentional Misrepresentation, Negligent Misrepresentation, Promissory 

Fraud, Theft, and Unfair and Deceptive Practices. The Court refused to

look at any of the claims and legal citations that the Plaintiffs presented to 

the Court creating alleged fraud on the Court.

Despite the filing of their motion, on May 5, 2021, Plaintiffs prematurely filed separate 

notices of appeal as to each of the Defendants, listing the judgment date as April 5, 2021.

The trial court entered an order addressing Plaintiffs’ motions on May 7, 2021. In 

its order, the court again noted that it would construe Plaintiffs’ motions as made 

pursuant to Tennessee Rule of Civil Procedure 59.04. The court stated that pursuant to 
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applicable case law, a Rule 59.04 motion should be granted when (1) the controlling law 

changes before the judgment becomes final, (2) when previously unavailable evidence 

becomes available, or (3) to correct a clear error of law or to prevent injustice. See 

Stricklin v. Stricklin, 490 S.W.3d 8, 11 (Tenn. Ct. App. 2015). The court elucidated that 

because Plaintiffs had not alleged that either of the first two reasons were applicable, it 

would address whether there was a clear error of law or whether the court needed to act 

to prevent an injustice.

As the trial court noted, Plaintiffs made several arguments in support of their 

motions. First, Plaintiffs advanced that they had stated claims of breach of contract, 

breach of warranty, and breach of the covenant of good faith and fair dealing. The court 

determined, however, that the gravamen of all of Plaintiffs’ claims related to the 

construction defects and Defendants’ “refusal to act on those defects.” The court further 

noted that Plaintiffs sought recovery of damages as a result of those defects. As such, the 

court concluded that Plaintiffs’ claims stated an action for injury to real property, which 

was subject to the three-year statute of limitations found in Tennessee Code Annotated § 

28-3-105. In making its determination, the trial court relied on this Court’s decision in

Kirby Farms Homeowners Ass’n v. Citicorp, Citibank, N.A., 773 S.W.2d 249 (Tenn. Ct. 

App. 1989), finding the case to be factually similar to the instant action.

The trial court also addressed Plaintiffs’ argument that they had not discovered 

their cause of action until January 2018 when Middle Tennessee Mold Remediation 

submitted its report stating that Defendants had not made the repairs that they claimed 

they had completed. The court determined, however, that the allegations in Plaintiffs’ 

complaint demonstrated that Plaintiffs knew of defects in the home in August 2017 

despite the fact that they might have discovered additional defects at a later time. With 

respect to Plaintiffs’ contention that fraudulent concealment would toll the statute of 

limitations, the court determined that Plaintiffs would have to demonstrate that 

Defendants’ knowingly concealed or failed to disclose information in order to mislead 

Plaintiffs and that Plaintiffs could not have discovered the cause of action while 

exercising reasonable care because of the concealment. The court found that because (1) 

Plaintiffs had acknowledged in their complaint that they had knowledge of the mold the 

day before closing and began to suffer physical effects within two weeks of closing, (2)

Tony Maher had told Plaintiffs in late August 2017 that they would have to sue 

Defendants in order to make them act, and (3) Defendants failed to act thereafter, 

Plaintiffs could not obtain relief on the basis of fraudulent concealment.

With regard to Plaintiffs’ reliance on Tennessee Code Annotated § 28-3-202, the 

trial court explained that this was a statute of repose, rather than a statute of limitations,

and therefore did not affect the timeliness of Plaintiffs’ complaint. In relation to 

Plaintiffs’ “emergency motions,” the court explained that it could not grant immediate 

relief to Plaintiffs without a hearing on the merits or in the absence of statutory authority 

that would afford such relief. Concerning Plaintiffs’ dissatisfaction with the court’s entry 
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of the order of dismissal, the trial court indicated that Defendants’ counsel had submitted 

a proposed order following the March 23, 2021 hearing and that the court did not act on 

the order for at least ten days. During the interim, Plaintiffs submitted no alternate 

proposed order.

The trial court acknowledged that Plaintiffs had made warranty claims based on 

Tennessee Code Annotated § 47-18-1402; however, the court determined that this statute 

applied to consumer products and that a house was not a product. Finally, with reference

to Plaintiffs’ arguments that the trial court was biased or had otherwise deprived 

Plaintiffs of their constitutional rights, the court stated:

The Court understands that [Plaintiffs] are displeased with the 

Court’s rulings. However, [Plaintiffs’] Complaint was not timely filed. 

The Court made its determination based on the applicable statute of 

limitations. The fact that the Defendants have appeared before this Court in 

previous litigation had no bearing on the Court’s determination in this 

litigation. Regarding [Plaintiffs’] claim that the Court denied them due 

process, the Court finds the argument to be without merit. The Court 

dismissed the Complaint pursuant to Tennessee Code Annotated § 28-3-

105. [Plaintiffs] do not argue that the Tennessee Code Annotated § 28-3-

105 is unconstitutional as applied to them. The Court has addressed all of 

the matters pending before the Court in this litigation. The Court finds that 

[Plaintiffs] have failed to establish that there has been a clear error of law to 

warrant altering or amending any of its orders. [Plaintiffs’] Motions are 

DENIED. 

Plaintiffs filed a motion to alter or amend on May 14, 2021, reiterating many of 

their earlier arguments. The trial court entered an order on May 18, 2021, explaining that 

(1) it had ruled on all matters by order entered May 7, 2021, and (2) Plaintiffs had already 

appealed to this Court. The trial court therefore determined that it no longer maintained 

subject matter jurisdiction in the action and declined to rule on Plaintiffs’ May 14, 2021 

motion. This appeal followed.

II. Issues Presented

Plaintiffs present the following issues for our review, which we have quoted here 

as they appear in Plaintiffs’ appellate brief:

1. Whether it was a “Breach of Contract” by [Defendants] when Tony 

Maher, COO for John Maher Builders, Inc., knew about the mold in 

the residential property prior to closing, and then intentionally sold 

the residential property to [Plaintiffs] on August 4, 2017, with the 

knowledge that there was mold in the property?.
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2. Whether Tony Maher admitting to Spring Hill Police Detective 

Robert Carden that he was aware that there was mold in the property 

but did not disclose this information in the Tennessee Residential 

Property Condition “Disclosure Form” as required by Tenn. Code 

Ann. § 66-5-202 is a violation of Tenn. Code Ann. § 66-5-202 and a 

resultant “Breach of Contract?” Based on the case law Ralph Hall 

Et Al. V. Jimmy D. Tabb Et Al. W2020-00740-COA-R3-CV—

(March 25, 2021), the Appellate Court found that, “[that the Tabbs] 

were deceptive and that they had an affirmative duty to disclose the 

same on the [Disclosure Form].”

3. Whether the answer to question (1) “breach of contract”, allows the 

[Plaintiffs] an immediate ruling, at minimum, for “Default 

Judgment” based on “Intentional Fraud” and “Breach of Contract”, 

or to allow a “Final Judgement with Prejudice” against the 

[Defendants]?

4. Whether the answers to questions 1 and 2, also on the same day that 

[Plaintiffs] closed on their property also became an act of “theft”

according to Tenn. Code. Ann. § 39-14-154 by (b)(1)(A)(i),

(2)(A)(B)(C)(i)(ii)?

5. Whether the Court violated [Plaintiffs’] rights by not allowing 

[Plaintiffs] use of Tenn. Code Ann. § 47-18-1402, Warranty 

Extension Period when a property/home was determined by 

Appellate Court rulings to be a product in Dixon v. Mountain City 

Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982) which [Plaintiffs]

presented this case law in their Complaint and almost every motion 

filed?

6. Whether [Plaintiffs] are entitled to a “Default” or “Final” Judgment 

based on the Court depriving [Plaintiffs] of their right of using Tenn. 

Statute, Tenn. Code Ann. § 47-18-1402 where their property is still 

under warranty to this day?

7. Whether [Plaintiffs’] demand for a refund of their monies per Tenn. 

Code. Ann. § 39-14-154 was a failure by JMB to not pay within 10 

days for the act of “theft”, that the act of “theft” did occur according 

to Tenn. Code. Ann. § 39-14-154?
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8. Whether the “Date of Service” change by the Court from January 12, 

2021, to January 27, 2021, in error, and did the error prevent a 

“default judgment” for [Plaintiffs]?

9. Whether the Court’s ruling to dismiss the Plaintiff[s’] (13) merited 

and timely claims, in its entirety and with prejudice, violate the 

Rules of civil procedure and deprive [Plaintiffs’] rights to “Due

Process of Law”?

10. Whether the Chancery Court failed to protect [Plaintiffs’] basic 

inalienable Constitutional Rights to “Due Process of Law”

throughout the Court proceedings?

11. Whether the Court incorrectly dismissed [Plaintiffs’] Complaint 

based on using Tenn. Statute, 28-3-105 as the controlling law?

12. Whether the Chancery Court violated [Plaintiffs’] Constitutional 

Rights when the Court dismissed [Plaintiffs’] Complaint in its 

entirety?

13. Whether the Chancery Court applied an incorrect legal standard to 

reach the decision to dismiss [Plaintiffs’] Complaint in its entirety, 

against logic or proper reasoning, and cause an injustice to 

[Plaintiffs]?

14. Whether the Court violated the Rules of Civil Procedure when the 

Court failed to set a new hearing after its own admission of not 

including [Plaintiffs’] March 15, 2021 “Amended Emergency

Motion and Memorandum of Law” in the March 23, 2021, Hearing 

in which the Court decided to dismiss the case in its entirety without 

including either the March 9th or the March 15th, 2021, Motions and 

Memorandums of Law?

15. Whether the Chancery Court violated [Plaintiffs’] Rights when it 

ordered the opposing party to argue [Plaintiffs’] March 15, 2021 

“Amended Emergency Motion and Memorandum of Law” after 

[Defendants] had failed to respond and argue the Emergency Motion 

and Memorandum of Law on their own within the fifteen (15) day 

requirement by the Rules of Civil Procedure and subsequently 

[Defendants] fell under the Rule of Civil Procedure 12.08 waiving

all rights to a Defense for [Defendants’] failure to respond to either 

the March 9 or the March 15, 2021 Motions and Memorandums of 

Law?
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16. Whether the Chancery Court exceed its power and authority in its 

ruling dismissing all [Plaintiffs’] thirteen individual claims?

17. Whether all the Chancery Court’s rulings were null and void due to 

the violations of [Plaintiffs’] rights to “Due Process of Law?”

18. Whether the errored rulings of the Chancery Court, and the prejudice 

treatment by the Court against [Plaintiffs], are [Plaintiffs] entitled to 

a Final Judgment against [Defendants]?

19. Whether the Chancery Court showed prejudice against [Plaintiffs] 

by providing latitude for [Defendants] and showing harsh treatment 

towards [Plaintiffs] provided an unlawful benefit to the 

Defendants/Appellees?

20. Whether based on the Laws, Authorities, and Preponderance of 

indisputable evidence that [Plaintiffs] presented to the Chancery 

Court, did the Chancery Court make an errored ruling in dismissing 

[Plaintiffs’] Complaint in its entirety?

21. Whether the Court failed to use the correct Controlling Law, which 

should have been “Breach of Contract,” Tenn. Code Ann. § 28-3-

109(a)(3)?

22. Whether the Court properly determined the “discovery” dates of 

issues discovered during each inspection in conformance with the 

Supreme Court’s rulings for how the Court is to establish the date of 

discovery especially when the Builder/Defendants/Appellees 

demand that [Plaintiffs] provide those reports? (See Exhibit - SIMP00A13 - Wayne Thurmon - Carpet Warranty Already Voided 11-27-

17). (R. Vol. 2, Pg. 0263).

23. Whether the Chancery Court violated the Supreme Court and the 

Appellate Court ruling on how the Court is to determine the proper 

“gravamen” of each of [Plaintiffs’] individual claims? (R. Vol. 10, 

Pgs., 1325, Lines 22-31, 1326 Lines 48 & 49, 1327, Lines 1-17, 

1243, 1244).

24. Whether the Court errored and violated [Plaintiffs’] Rights and 

deprived [Plaintiffs] of remedies they were entitled to based on 

failure to rule on “Abandonment” and “Fraud” by the Builder?
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25. Whether [Plaintiffs’] property is still under warranty based on 

[Plaintiffs’] property being classified as a “product” according to the 

Appellate Court ruling in Dixon v. Mountain City Constr. Co., 632 

S.W.2d 538, 541 (Tenn. 1982)?

26. Whether based on the fact that Tenn. Code Ann. § 66-36-103 has 

been allowed to be used in residential settings, “E.g., Greeter Const. 

Co. v. Tice, 11 S.W.3d 907, 910-11 (Tenn. Ct. App. 1999); Lavy v. 

Carroll, No. M2006-00805-COAR3-CV, 2007 Tenn. App. LEXIS 

809, at **9-10 (Tenn. Ct. App. Dec. 26, 2007), and, Custom Built 

Homes by Ed Harris v. McNamara, No. M2004-02703-COA-R3-

CV, 2006 Tenn. App. LEXIS 781, at **14-15 (Tenn. Ct. App. Dec. 

11, 2006),” are [Plaintiffs] entitled to the same use and therefore 

their statute of limitations started on November 2018 extending 

[Plaintiffs’] Statute of Limitations to May of 2022?

27. Whether the Court errored in not providing a TRO to prevent 

[Plaintiffs’] property from going into foreclosure knowing it is the 

central evidence in this Complaint?

28. Whether the Court error by not enforcing the repeated 

Recommendations/Requirements of the Mold Expert in reports 

spanning two years that the Builder was to either provide temporary

housing or to provide funds to [Plaintiffs] so that they could move in 

substitute housing due to the extreme toxic environment and 

causation of [Plaintiffs’] health crisis?

29. Whether the Court errored by not ruling on the fraudulent 

concealment and fraudulent misrepresentation when there were three 

times that [Defendants] could have disclosed the truth that the 

“Utility Penetrations” in the crawlspace were never sealed when they 

falsely stated that the utility penetrations were sealed?

30. Whether the Chancery Court violated [Plaintiffs’] rights when it 

failed to rule on RPC 1.6 for the financial and physical injury that 

[Defendants’] Attorney was to ensure that his Client did not cause 

financial of substantial physical harm to occur against [Plaintiffs]?

31. Whether the Court errored by not ruling on the theft according to 

Tenn. Code Ann § 39-14-154(b)(1)(A)(i), (2)(B),(c)(1): New home 

construction and home improvement services; offenses; penalties 

and restitution?
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32. Whether the Court errored when it did not convert the Dismissal of 

the Complaint into a Rule 56 Procedure for Summary Judgement?

III. Standard of Review

As our Supreme Court has explained concerning motions to dismiss for failure to 

state a claim under Tennessee Rule of Civil Procedure 12.02(6):

A Rule 12.02(6) motion challenges only the legal sufficiency of the 

complaint, not the strength of the plaintiff’s proof or evidence. The 

resolution of a 12.02(6) motion to dismiss is determined by an examination 

of the pleadings alone. A defendant who files a motion to dismiss “‘admits 

the truth of all of the relevant and material allegations contained in the 

complaint, but . . . asserts that the allegations fail to establish a cause of 

action.’” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn.

2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 

512, 516 (Tenn. 2005)).

In considering a motion to dismiss, courts “‘must construe the 

complaint liberally, presuming all factual allegations to be true and giving 

the plaintiff the benefit of all reasonable inferences.’” Tigg v. Pirelli Tire 

Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (quoting Trau-Med [of Am., Inc. 

v. Allstate Ins. Co.], 71 S.W.3d [691,] 696 [(Tenn. 2002)]). A trial court 

should grant a motion to dismiss “only when it appears that the plaintiff can 

prove no set of facts in support of the claim that would entitle the plaintiff 

to relief.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn.

2002). We review the trial court’s legal conclusions regarding the 

adequacy of the complaint de novo. 

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)

(other internal citations omitted).

We recognize that Plaintiffs are pro se litigants and respect their decision to 

proceed self-represented. With regard to self-represented litigants, this Court has 

explained:

Pro se litigants who invoke the complex and sometimes technical 

procedures of the courts assume a very heavy burden. Gray v. Stillman 

White Co., 522 A.2d 737, 741 (R. I. 1987). Conducting a trial with a pro se

litigant who is unschooled in the intricacies of evidence and trial practice 

can be difficult. Oko v. Rogers, 125 Ill. App.3d 720, 81 Ill. Dec. 72, 75, 

466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to 

appreciate and be understanding of the difficulties encountered by a party 
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who is embarking into the maze of the judicial process with no experience 

or formal training.

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Although 

parties proceeding without benefit of counsel are “entitled to fair and equal treatment by

the courts,” we “must not excuse pro se litigants from complying with the same 

substantive and procedural rules that represented parties are expected to observe.” 

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). In addition, this Court 

must “be mindful of the boundary between fairness to a pro se litigant and unfairness to 

the pro se litigant’s adversary.” Id. Moreover, “[p]ro se litigants are not . . . entitled to 

shift the burden of litigating their case to the courts.” See Chiozza v. Chiozza, 315 

S.W.3d 482, 487 (Tenn. Ct. App. 2009) (quoting Whitaker v. Whirlpool Corp., 32 S.W.3d 

222, 227 (Tenn. Ct. App. 2000)).

IV. Applicability of Tennessee Code Annotated § 28-3-105 to

Plaintiffs’ Claims Alleging Breach of Contract and Warranty

Several of Plaintiffs’ issues address the question of whether the trial court 

improvidently dismissed Plaintiffs’ breach of contract claims, including claims asserting 

breach of any express or implied warranties contained in the parties’ contract. Plaintiffs 

contend that they properly stated claims of breach of contract because, inter alia, (1) 

Defendants sold the home in question to Plaintiffs with knowledge that mold existed in 

the crawl space and (2) Defendants did not disclose the existence of mold on the 

residential property disclosure statement in accordance with Tennessee Code Annotated § 

66-5-202 (2015) (providing that a home owner shall provide to a purchaser a “residential 

property disclosure statement in the form provided in this part regarding the condition of 

the property, including any material defects known to the owner.”). Plaintiffs further 

postulate that the trial court erroneously determined that the gravamen of their claims

concerned construction defects and Defendants’ refusal to remedy those defects. 

Plaintiffs assert that the trial court should have applied the six-year statute of limitations 

found in Tennessee Code Annotated § 28-3-109(a)(3) (2017) to the breach of contract 

claims, thus rendering those claims timely. For these reasons, Plaintiffs argue that they 

are entitled to an immediate final or default judgment.

The overarching issue to be addressed with regard to Plaintiffs’ allegations 

concerning their breach of contract claims is whether the trial court properly determined 

that the gravamen of the claims was for injury to Plaintiffs’ real property rather than 

breach of contract. In so ruling, the trial court relied upon this Court’s opinion in Kirby 

Farms, 773 S.W.2d at 250, wherein the plaintiffs, who were purchasers of condominiums 

built by the developer defendants, filed a class action lawsuit concerning construction 

defects and asserted claims of, inter alia, breach of express and implied warranties based 

on their contracts with the developers. See id. at 250. The trial court in Kirby Farms

granted summary judgment to the developers based on Tennessee Code Annotated § 28-
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3-105, and the plaintiffs appealed to this Court. Id. On appeal, this Court was asked to 

determine whether the six-year statute of limitations applicable to claims of breach of 

contract found in Tennessee Code Annotated § 28-3-109 should have been applied. Id.

The Kirby Farms Court concluded that the trial court had properly applied 

Tennessee Code Annotated § 28-3-105 as a bar to the plaintiffs’ claims, stating:

It is well settled in this state that the gravamen of an action, rather 

than its designation as an action for tort or contract, determines the 

applicable statute of limitations. Pera v. Kroger Co., 674 S.W.2d 715, 719 

(Tenn. 1984). The word “actions” in T.C.A. § 28-3-105 refers to the 

subject matter of the controversy and not to the remedial procedure. 

Whether an action for the recovery of damages to personal or real property 

results from a breach of contract or from a tort, independent of contract, is 

immaterial. Williams v. Thompson, 223 Tenn. 170, 172, 443 S.W.2d 447, 

449 (1969).

The facts in Williams v. Thompson are very similar to the present 

case. In Williams, the plaintiffs sued the builders of their residence, 

complaining of defects such as cracks in the walls, window and door 

frames out of alignment, settling of the foundation, and sinking of the house 

into the ground. Plaintiffs’ complaint alleged the defendants breached an 

implied duty in the contract to construct the residence in a good and 

workmanlike manner. In holding the three-year statute rather than the sixyear statute applicable, the court stated, “[A]lthough complainants’ bill 

sounds in contract . . . the only injury alleged in the bill is physical injury to 

the residence which allegedly occurred and was known to complainants 

more than three years prior to commencing the action.” Id., 443 S.W. at 

449.

In the present case, we find the gravamen of plaintiffs’ complaint is 

for injury to real property. Paragraph seven of the second amended 

complaint declares, “This action is brought to recover damages to that 

property, sometimes referred to as the ‘common areas,’ which the named 

individual plaintiffs and other members of the class own as tenants in 

common.” The complaint further alleges plaintiffs have expended large 

sums of money in attempts to repair the defects and request to be 

compensated for those expenditures.

In Count I of the Second Amended Complaint, under the heading 

“Breach of Express Warranty” recovery is sought for structurally and 

functionally defective building components. In Count III, under the 

heading “Implied Warranties of Habitability, Quality and Merchantability” 
- 14 -

recovery is sought, in paragraph 36, “for the repair and maintenance of the 

property, building and improvements of the development.” In Count VII 

plaintiffs claim that defendants breached their fiduciary duty to the 

plaintiffs since they had control of the Homeowner’s Association until 

August of 1978. Plaintiffs contend that defendants failed to keep adequate 

records, failed to disclose defective workmanship, failed to provide a 

reserve fund, misrepresented the amount of maintenance fees, and did other 

things to breach their fiduciary duties. We note that no specific damages 

were sought for any of these enumerated breaches of fiduciary duty 

separate and apart from a demand for total damages in the amount of 

$3,000,000 for all of the delineated actions.

When the damages for which recovery is sought represent the cost of 

repair or the replacement cost of property and such accrued damages are the 

result of negligent acts, the action is for damage to property and covered by 

T.C.A. § 28-3-105. Harvest Corp. v. Ernst & Whinney, 610 S.W.2d 727, 

729 (Tenn. App. 1980). Although plaintiffs attempt to distinguish their 

case on the ground they are not alleging a tort, but suing simply because 

defendants failed to comply with their contract, which caused the damages 

complained of, their case cannot be so distinguished. Williams v. 

Thompson, supra 443 S.W.2d at 450 (rejecting this exact argument); 

Prescott v. Adams, 627 S.W.2d 134, 137 (Tenn. App. 1981). Prescott was 

an action brought by purchasers against vendors and a real estate agent for 

(1) fraud in the inducement of a contract, (2) misrepresentation, (3) 

negligence in the design of an improvement to real property, (4) breach of a 

fiduciary duty, and (5) breach of the implied warranties of marketability 

and habitability. The Court said that “since the gravamen of the complaint 

in this case is for damages to real property, we think all of the theories 

advanced by the plaintiffs are governed by the three year statute of 

limitations.”

Kirby Farms, 773 S.W.2d at 251. The Kirby Farms Court therefore affirmed the trial 

court’s grant of summary judgment. Id. at 252.

The analysis utilized in Kirby Farms has been adopted by this Court in other cases 

involving construction defects wherein the plaintiffs also alleged a breach of contract. 

See, e.g., Liggett v. Brentwood Builders, LLC, No. M2007-00444-COA-R3-CV, 2008 

WL 836115, at *3-4 (Tenn. Ct. App. Mar. 27, 2008); Molin v. Perryman Constr. Co., No. 

01-A-019705-CV-00232, 1998 WL 83737, at *1 (Tenn. Ct. App. Feb. 27, 1998); Conley 

v. Jim Wright Constr. Co., No. 01-A-019012-CH-00440, 1991 WL 107871, at *1 (Tenn. 

Ct. App. June 21, 1991). Liggett involved the plaintiffs’ purchase of a newly constructed 

home from the builder and their subsequent discovery of water leaks throughout the 

home. 2008 WL 836115, at *1. The plaintiffs complained about the leaks, and the 
- 15 -

builder attempted repairs over a period of approximately three years. Id. The plaintiffs 

eventually filed a lawsuit against the builder, stating claims of fraud, breach of contract, 

consumer protection violations, negligent misrepresentation, and negligence. Id. at *2.

The trial court in Liggett granted summary judgment to the builder based on 

expiration of the three-year statute of limitations applicable to injuries to real property, 

Tennessee Code Annotated § 28-3-105 (2017), and this Court affirmed that ruling on 

appeal. Id. at *6. The Liggett Court determined that the gravamen of the action was 

based on an injury to real property and accordingly affirmed the trial court’s application 

of Tennessee Code Annotated § 28-3-105 to the plaintiffs’ claims alleging breach of 

contract. Id.

In Molin, the plaintiffs filed suit against the defendant construction company, 

which the plaintiffs had hired to renovate their home. Molin, 1998 WL 83737, at *1. 

Although the plaintiffs immediately noticed problems with the work that had been 

performed, they did not file suit right away because the defendant continued to make 

repairs. Id. The plaintiffs did eventually file a complaint alleging that the defendant had 

breached his contract with the plaintiffs by failing to exercise good workmanship; 

however, the trial court granted summary judgment to the defendant based on expiration 

of the three-year statute of limitations found in Tennessee Code Annotated § 28-3-105. 

Id. at *2.

On appeal, the Molin Court agreed that Tennessee Code Annotated § 28-3-105 

contained the applicable statute of limitations. Id. at *4. As this Court explained:

Both Kirby Farms and Williams support our conclusion that section 

28-3-105 contains the appropriate statute of limitations for the action in this 

case. In the instant case, the gravamen of the Molins’ complaint is for 

injury to real property. As in Williams, the complaint in this case sounds in 

contract denoting as the “cause of action” a “breach of contract.” However, 

the injury alleged is the damage to the Molins’ home. The complaint 

alleges that “[t]here are a number of leaks in the roof which [Perryman] has 

failed to correct. . . . [The Molins] have been injured as a result of 

[Perryman’s] breach of contract. [They] have or will incur substantial 

expenses to repair the leaks and other damages caused by the water.” In the 

proposed amendment, Appellants alleged that “[t]he floors are buckling, 

sagging and cracking. Floor joints have been crushed and twisted. Outside 

walls are bowing and sagging. . . . [The Molins] will have to incur 

substantial expense to correct these problems.” Thus, even a consideration 

of the allegations in the proposed amendment reveals that there are no 

damages other than this injury to the real property which have been claimed 

by Appellants. See Prescott v. Adams, 627 S.W.2d 134, 137 (Tenn. Ct.

App. 1981) (“The major criterion in ascertaining the gravamen of an action 
- 16 -

is the kind of damage alleged.”). Accordingly, we are of the opinion that 

section 28-3-105 applies to the facts in this case.

Id.

Similarly, in Conley, the plaintiffs asserted a claim of breach of their construction 

contract with the defendant construction company because their newly constructed home 

exhibited leaks. 1991 WL 107871, at *1. The trial court granted summary judgment to 

the defendant based on expiration of the three-year statute of limitations in Tennessee 

Code Annotated § 28-3-105, and the plaintiffs appealed. Id. On appeal, the Conley

Court determined:

[T]he gravamen of the action, rather than designation as an action for tort or 

contract, determines the applicable statute of limitations. Whether the 

action for recovery of damages results from a breach of contract or tort is 

immaterial. When the damages sought are the cost of repair or replacement 

of improvements to realty and the accrued damages result from the 

defendant’s negligence, the action is for damage to real property governed 

by § 28-3-105. 

Id. (internal citations omitted). 

We note, however, that the concept of determining the “gravamen of the action”

was subsequently clarified by our Supreme Court in Benz-Elliott v. Barrett Enters, LP, 

456 S.W.3d 140 (Tenn. 2015). In Benz-Elliott, the plaintiff filed suit against the 

purchasers of a portion her real property, asserting that although the parties had signed a 

contract of sale providing that the plaintiff would retain ownership of a sixty-foot-wide 

strip of the property as a means of ingress and egress to her remaining property, the 

warranty deed ultimately executed by the parties failed to contain such reservation. Id. at 

142. The plaintiff filed suit more than three years after the sale was concluded, alleging 

claims of breach of contract, intentional misrepresentation, and negligent 

misrepresentation. Id. at 144. The defendants asserted as an affirmative defense 

expiration of the three-year statute of limitations found in Tennessee Code Annotated § 

28-3-105. Id. Following a trial on the merits, the trial court determined that the plaintiff 

had proven that the parties’ contract was breached and awarded her damages resulting 

from that breach. Id. at 146.

On appeal to this Court, the Benz-Elliott defendants posited, inter alia, that the 

plaintiff’s claim was barred by the three-year statute of limitations, and this Court agreed, 

determining that the gravamen of the claim was an action for damages to real property. 

Benz-Elliott v. Barrett Enters, LP, No. M2013-00270-COA-R3-CV, 2013 WL 3958386 

(Tenn. Ct. App. July 29, 2013). The plaintiff appealed that ruling to our Supreme Court, 

and the High Court reversed, determining that the gravamen of the plaintiff’s claim was
- 17 -

breach of contract. Benz-Elliott, 456 S.W.3d at 152. In so ruling, the Supreme Court set 

forth the proper analysis to be conducted with respect to this issue, elucidating:

It is oft-recited law in this State that to determine the governing 

statute of limitations, a court must ascertain the “‘gravamen of the 

complaint.’” Whaley [v. Perkins], 197 S.W.3d [665,] 670 [(Tenn. 2006)] 

(quoting Gunter [v. Lab Corp. of Am.], 121 S.W.3d [636,] 638 [(Tenn. 

2003)]); see also Mike v. Po Group, Inc., 937 S.W.2d 790, 793 (Tenn.

1996); Alexander v. Third Nat’l Bank, 915 S.W.2d 797, 798 (Tenn. 1996); 

Vance v. Schulder, 547 S.W.2d 927, 931 (Tenn. 1977). However, defining 

what this principle means has proven difficult over time.

Many Tennessee decisions have explained that ascertaining the 

gravamen requires a court to determine the basis for which damages are 

sought. However, early decisions of this Court focused exclusively upon 

the type of injuries for which damages were sought and described the legal 

basis of the action as “immaterial.” Williams v. Thompson, 223 Tenn. 170, 

443 S.W.2d 447, 449 (1969).

In Williams, the defendants contracted to sell the plaintiffs a lot and 

to build the plaintiffs a home on it. 443 S.W.2d at 449. The defendants 

performed the contract, but after the plaintiffs moved into the home on 

January 25, 1963, they noticed “cracks in the walls, window and door 

frames out of alignment, settling of the foundation and sinking of the house 

into the ground.” Id. at 448. The plaintiffs filed suit on July 19, 1968, 

“alleging a breach of an implied warranty in the contract of sale, dated July 

23, 1962, in that defendants did not construct the residence in a good and 

workmanlike manner.” Id. at 449. This Court held that the action was 

governed by the three-year statute of limitations because the complaint 

alleged an injury to real property, even though the legal basis of the claim 

was an alleged breach of an implied warranty in the sale contract. Id. at 

449.

Even when more than one cause of action was alleged in a single 

complaint, language in prior decisions of this Court seemed to suggest that 

the complaint should be distilled to a single “gravamen” based on the type 

of damages requested. See, e.g., Whaley, 197 S.W.3d at 670 (“The 

‘applicable statute of limitations . . . will be determined according to the 

gravamen of the complaint.’” (quoting Gunter, 121 S.W.3d at 638)); Vance, 

547 S.W.2d at 931 (same).

More recently we have observed that “gravamen of the complaint” is 

a “rather elliptical phrase” which “refers to the substantial point, the real 
- 18 -

purpose, or the object” of an action. Redwing v. Catholic Bishop for the 

Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012) (internal quotation 

marks omitted). We have also said that gravamen is not dependent upon 

the “designation” or “form” litigants ascribe to an action. Id. (quoting Pera 

v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984); Callaway v. McMillian, 

58 Tenn. 557, 559 (1872)).

But our prior decisions have not specifically discussed the reality 

that, at least since the adoption of the Tennessee Rules of Civil Procedure, 

parties may assert alternative claims and defenses and request alternative 

relief in a single complaint, regardless of the consistency of the claims and 

defenses. Tenn. R. Civ. P. 8.01, 8.05, 18.01, 18.02; see also Barnes v. 

Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (“[A]lternative pleadings are 

expressly permitted, regardless of consistency . . . .”); Concrete Spaces, Inc. 

v. Sender, 2 S.W.3d 901, 909 (Tenn. 1999) (explaining that alternative 

pleadings are permitted). Such alternative claims may well be subject to 

differing statutes of limitations. An analysis such as that employed in 

Williams and early decisions would, in fact, be unworkable as it would 

require a court to identify a single gravamen from a complaint that alleges 

alternative, and potentially inconsistent, claims. We agree with the Court 

of Appeals that, in choosing the applicable statute of limitations, courts 

must ascertain the gravamen of each claim, not the gravamen of the 

complaint in its entirety. Black v. Sussman, No. M2010-01810-COA-R3-

CV, 2011 WL 2410237, at *8 (Tenn. Ct. App. June 9, 2011); Bluff Springs 

Apartments, Ltd. v. Peoples Bank of the South, No. E2009-01435-COA-R3-

CV, 2010 WL 2106210, at *10 (Tenn. Ct. App. May 26, 2010); Mid-South 

Indus., Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, 31-32 (Tenn. Ct.

App. 2010); Craighead v. BlueCross BlueShield of Tenn., Inc., No. M2007-

01697-COA-R10-CV, 2008 WL 3069320, at *8 (Tenn. Ct. App. July 31, 

2008); Lewis v. Caputo, No. E1999-01182-COA-R3-CV, 2000 WL 

502833, at *4 (Tenn. Ct. App. Apr. 28, 2000)[.]

Id. at 147-49 (footnote and other internal citations omitted). 

Having determined that a court must consider each claim asserted, the High Court 

in Benz-Elliott proceeded to set forth the proper analysis for determining the gravamen of 

each claim, adopting the following two-step approach:

[A] court must first consider the legal basis of the claim and then consider 

the type of injuries for which damages are sought. This analysis is 

necessarily fact-intensive and requires a careful examination of the 

allegations of the complaint as to each claim for the types of injuries 

asserted and damages sought.
- 19 -

Id. at 151.

Based upon our Supreme Court’s instruction from Benz-Elliott, we will therefore 

proceed in the instant action to determine both the legal basis of the claims in question 

and the type of injuries for which damages are sought. Plaintiffs averred in their 

complaint that their home, built by Defendants, was uninhabitable and toxic due to mold 

therein. Plaintiffs claimed, inter alia, that their home was “Incomplete, Unsealed, 

Unfinished containing numerous undisclosed/negligently and fraudulently concealed 

Code Violations (omissions), with defective conditions at the time of sale), defective 

design, defective construction, defective and non-conforming construction by poor 

workmanship.” Plaintiffs also claimed that Defendants had utilized “defective/damaged 

building materials (infested with mold and other microbial growth), that were 

purposefully hidden and not disclosed by JMB as required by Law.” Plaintiffs 

complained that Defendants had failed and refused to remedy the defective conditions 

despite Plaintiffs’ warranty claims, stating that Tony Maher told them in August 2017 

that “Plaintiffs would have to sue [Defendants] and only then if the Court ordered it 

would they do something.” Plaintiffs further averred that because of Defendants’ faulty 

construction and subsequent refusal to remedy the issues with the home, the home had 

been categorized as a “total loss” and would have to be “torn down, the grounds treated, 

and then it must be rebuilt in accordance with all required codes and with all new 

materials.”

In addition to alleging injury to their real property, Plaintiffs alleged that 

Defendants breached their contract with Plaintiffs, including any express or implied 

warranties contained therein, not only because of Defendants’ alleged negligent 

construction practices but also because of Defendants’ alleged acts of “abandoning” 

Plaintiffs after the sale and refusing to honor Plaintiffs’ warranty claims. Plaintiffs 

claimed that Defendants “made promises they never intended to keep” and declined to 

investigate Plaintiffs’ claims or make repairs pursuant to Plaintiffs’ one-year home 

warranty.1 Based on our review of the legal basis for Plaintiffs’ claims, we conclude that 

Plaintiffs clearly alleged alternate claims sounding in breach of contract.

With regard to the type of injuries for which damages were sought, in addition to 

damages for injury to their property, Plaintiffs asserted that they were entitled to damages 

 

1 Plaintiffs attached a copy of their sales contract as an exhibit to their complaint. This contract provides 

that the seller, JMB, was providing to the buyer, Mr. Simpkins, a “2/10 warranty.” However, the contract 

does not provide any further explanation concerning this warranty or its terms. We note that “exhibits 

attached to the complaint whose authenticity is unquestioned” may be considered by the trial court 

without converting the Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss to a Tennessee 

Rule of Civil Procedure 56 motion for summary judgment. Felker v. Felker, No. W2019-01925-COAR3-CV, 2021 WL 3507745, at *4 (Tenn. Ct. App. Aug. 10, 2021).
- 20 -

for monetary losses, including a refund of the purchase price of the home, moving 

expenses, temporary housing costs, storage costs, medical expenses, loss of revenue from 

their home-based business, diminution in value of the home, and other losses. As this 

Court has previously stated, “Tennessee law allows recovery of all damages which are 

the normal and foreseeable result of the breach of a contract.” Bush v. Cathey, 598 

S.W.2d 777, 783 (Tenn. Ct. App. 1979).

2

 Such recovery can, in proper circumstances, 

include such things as temporary housing and moving costs. See id. Moreover, generally 

speaking, the cost of repair and diminution in value are also remedies that may be granted 

due to a finding of breach of contract in appropriate circumstances. See, e.g., Wilkes v. 

Shaw Enters., LLC, No. M2006-01014-COA-R3-CV, 2008 WL 695882, at *10 (Tenn. 

Ct. App. Mar. 14, 2008). Therefore, predicated on the legal basis asserted for Plaintiffs’ 

claims and the type of injuries for which damages were sought, we conclude that the trial 

court erroneously found that the gravamen of Plaintiffs’ breach of contract claims was 

actually for damage to real property in accordance with Kirby Farms. As such, Plaintiffs’

breach of contract claims, including claims asserting breach of express or implied 

warranty, were subject to the six-year statute of limitations codified in Tennessee Code 

Annotated § 28-3-109, and the trial court erred in dismissing those claims based on

expiration of the three-year statute of limitations found in Tennessee Code Annotated § 

28-3-105.

3

 We will now turn to Plaintiffs’ issues concerning whether the trial court 

should have tolled the accrual of any applicable three-year statute of limitations.

V. Discovery Rule

Plaintiffs contend that the trial court erred by declining to determine that the 

accrual of the applicable statute of limitations was tolled by application of the discovery 

rule. As this Court has previously explained concerning such doctrine:

In general, the inquiry of when a plaintiff knew of or should have 

discovered a cause of action is a question of fact not properly decided on 

summary judgment. See City State Bank v. Dean Witter Reynolds, Inc., 948 

 

2 We note, however, that the “purpose of assessing damages in breach of contract cases is to place the 

plaintiff as nearly as possible in the same position she would have been in had the contract been 

performed, but the nonbreaching party is not to be put in any better position by recovery of damages for 

the breach of the contract than he would have been if the contract had been fully performed.” Lamons v. 

Chamberlain, 909 S.W.2d 795, 801 (Tenn. Ct. App. 1993).

3

In their appellate brief, Plaintiffs repeatedly request that this Court award them an immediate or default 

judgment. This we cannot do. Appellate courts are courts “of appeals and errors,” “limited in authority 

to the adjudication of issues that are presented and decided in the trial courts.” Dorrier v. Dark, 537 

S.W.2d 888, 890 (Tenn. 1976). Although due process generally requires that parties receive “a fair trial 

in a fair tribunal,” see State v. White, 362 S.W.3d 559, 566 (Tenn. 2012), such trial must be conducted by 

a trial court. Moreover, Plaintiffs are not entitled to a default judgment in this matter because Defendants 

filed a motion to dismiss in response to Plaintiff’s complaint, which means that they did not “fail[] to 

plead or otherwise defend” as required by Tennessee Rule of Civil Procedure 55.01.
- 21 -

S.W.2d 729, 735 (Tenn. App. 1996). If the facts, however, are not in 

dispute and clearly show that a cause of action has accrued and that the 

statute of limitations has run, a summary judgment may be entered.

“A defense predicated on the statute of limitations triggers the 

consideration of three components—the length of the limitations period, the 

accrual of the cause of action, and the applicability of any relevant tolling 

doctrines. All of these elements are inter-related and, therefore, should not 

be considered in isolation.” Redwing v. Catholic Bishop for Diocese of 

Memphis, 363 S.W.3d 436, 456 (Tenn. 2012). While the burden of proof is 

upon the party asserting the bar of the statute of limitations to show the bar, 

when that showing is made, the burden shifts to the other party to show an 

exception. Id.

* * *

Under the discovery rule, the statute of limitations will only begin to 

run when the plaintiff has actual knowledge of the claim, or when the 

plaintiff has actual knowledge of facts sufficient to put a reasonable person 

on notice that she has suffered an injury as a result of wrongful conduct. 

For the purposes of both the discovery rule and the doctrine of fraudulent 

concealment, whether a plaintiff exercised reasonable care and diligence in 

discovering her injury is usually a fact question for the trier of fact to 

determine.

Coffey v. Coffey, 578 S.W.3d 10, 21-22 (Tenn. Ct. App. 2018). 

As our Supreme Court has further explained concerning the discovery rule in 

Tennessee:

In 1974, this Court recognized and adopted the discovery rule in response 

to the “harsh and oppressive” results of the traditional accrual rule in 

circumstances in which the injured party was unaware of the injury. 

Teeters v. Currey, 518 S.W.2d [512,] 516 [(Tenn. 1974)]. The Court, 

expressly limiting its decision to surgical malpractice cases, held that “the 

cause of action accrues and the statute of limitations commences to run 

when the patient discovers, or in the exercise of reasonable care and 

diligence for his own health and welfare, should have discovered the 

resulting injury.” Teeters v. Currey, 518 S.W.2d at 517. In his concurring 

opinion, Justice Harbison noted that “[i]n the vast majority of personal 

injury cases . . . the date of the injury and the date of discovery are 

simultaneous.” Teeters v. Currey, 518 S.W.2d at 518 (Harbison, J., 

concurring); see also Cada v. Baxter Healthcare Corp., 920 F.2d at 450.
- 22 -

The Court later expanded the application of the discovery rule to 

many other injuries to persons or property. See McCroskey v. Bryant Air 

Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975) (holding that “in tort 

actions . . . the cause of action accrues . . . when the injury occurs or is 

discovered, or when in the exercise of reasonable care and diligence, it 

should have been discovered.”); see also Justin N. Joy, Comment, Civil 

Procedure—Pero’s Steak & Spaghetti House v. Lee: Tennessee Declines to 

Extend the Discovery Rule to Claims of Converted Negotiable Instruments, 

34 U. Mem. L. Rev. 475, 487 & n.63 (2004) (cataloging the causes of 

action to which the discovery rule applies). The Court has also declined to 

apply the discovery rule to certain types of claims. Pero’s Steak & 

Spaghetti House v. Lee, 90 S.W.3d [614,] 624 [(Tenn. 2002)] (declining to 

apply the discovery rule in cases involving the conversion of negotiable 

instruments).

Following our decision in Teeters v. Currey, this Court refined the

discovery rule to make clear that it included not only the discovery of the 

injury but also the discovery of the source of the injury. Sherrill v. Souder, 

325 S.W.3d 584, 595 (Tenn. 2010) (holding that the cause of action accrues 

when the plaintiff discovers both the injury and the “identity of the person 

or persons whose wrongful conduct caused the injury”); John Kohl & Co. v. 

Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (holding that the 

cause of action accrues when the plaintiff knows or should know that it 

sustained an injury “as a result of wrongful . . . conduct by the defendant”); 

Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995) (holding that “a 

prerequisite to the running of the statute of limitations is [the] plaintiff’s 

reasonable knowledge of the injury, its cause and origin”); Foster v. Harris, 

633 S.W.2d 304, 305 (Tenn. 1982) (holding that “no judicial remedy [is] 

available to [a] plaintiff until he [or she] discover[s], or reasonably should 

have discovered, (1) the occasion, the manner and means by which a breach 

of duty occurred that produced his [or her] injury; and (2) the identity of the 

defendant who breached the duty.”).

The Court also made it clear that the discovery rule does not delay 

the accrual of a cause of action and the commencement of the statute of 

limitations until the plaintiff knows the full extent of the damages, B & B 

Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 849 

(Tenn. 2010); Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996) (holding 

that the plaintiff cannot delay filing suit “until all injurious effects or 

consequences of the actionable wrong are fully known”), or until the 

plaintiff knows the specific type of legal claim it has, John Kohl & Co. v. 

Dearborn & Ewing, 977 S.W.2d at 533; see also Stanbury v. Bacardi, 953 
- 23 -

S.W.2d 671, 677 (Tenn. 1997); Wyatt v. A-Best, Co., 910 S.W.2d at 855. 

The discovery rule is not intended to permit a plaintiff to delay filing suit 

until the discovery of all the facts that affect the merits of his or her claim. 

Mills v. Booth, 344 S.W.3d 922, 929 (Tenn. Ct. App. 2010) (quoting Burk 

v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct. App. 2006)).

Under the current discovery rule, a cause of action accrues and the 

statute of limitations begins to run not only when the plaintiff has actual 

knowledge of a claim, but also when the plaintiff has actual knowledge of 

“facts sufficient to put a reasonable person on notice that he [or she] has 

suffered an injury as a result of wrongful conduct.” Carvell v. Bottoms, 900 

S.W.2d 23, 29 (Tenn. 1995) (quoting Roe v. Jefferson, 875 S.W.2d 653, 

657 (Tenn. 1994)). This latter circumstance is variously referred to as 

“constructive notice” or “inquiry notice.” Quoting the Iowa Supreme 

Court, we have explained that inquiry notice “charges a plaintiff with 

knowledge of those facts that a reasonable investigation would have 

disclosed. . . . [O]nce a plaintiff gains information sufficient to alert a 

reasonable person of the need to investigate ‘the injury,’ the limitation 

period begins to run.” Sherrill v. Souder, 325 S.W.3d at 593 n.7 (quoting 

Rathje v. Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008)); see also 

Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (defining inquiry notice 

as the “notice which a plaintiff would have possessed after due 

investigation”).

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 458-59 (Tenn. 

2012) (footnotes omitted).

In the instant action, the trial court found that the discovery rule would not serve to 

toll accrual of the statute of limitations due to the factual allegations contained in 

Plaintiffs’ complaint. Based upon our thorough review of the complaint, we agree. 

In their complaint, Plaintiffs averred that they were shown mold in the crawl space 

of the home by Defendants’ agent on August 3, 2017, the day before Plaintiffs were 

scheduled to purchase the home. Plaintiffs also stated that they subsequently sent letters 

to Defendants in August 2017, September 2017, and November 2017, notifying 

Defendants that “microbial issues were present and causing deterioration in multiple 

areas of the property.” Plaintiffs further claimed that they informed Defendants in these 

letters of the numerous health issues Plaintiffs had begun to experience, as demonstrated 

by the copies of the letters attached to Plaintiffs’ complaint. In the letters, Plaintiffs also 

detailed their observations of mold on the walls, ceilings, and flooring within the home; 

moisture issues; spongy floors; and the smell of mold inside the house.
- 24 -

Presuming all of these factual allegations to be true, as we must when reviewing 

the grant of a motion to dismiss, see Webb, 346 S.W.3d at 426, we agree with the trial 

court’s determination that Plaintiffs could not rely on the discovery rule to toll the statute 

of limitations herein. The facts alleged in the complaint clearly demonstrated that 

Plaintiffs’ cause of action accrued well before December 30, 2017; however, Plaintiffs 

did not file their complaint until December 30, 2020, more than three years following 

accrual. Based on the factual averments in their complaint, there can be no question that 

Plaintiffs possessed “actual knowledge of facts sufficient to put a reasonable person on 

notice that [they had] suffered an injury as a result of wrongful conduct” by Defendants 

in August, September, and November 2017. See Coffey, 578 S.W.3d at 21-22. As such, 

the trial court correctly concluded that the discovery rule did not operate to toll the statute 

of limitations herein.

VI. Tolling Pursuant to Tennessee Code Annotated § 66-36-103

Plaintiffs also assert that the statute of limitations should have been tolled pursuant 

to Tennessee Code Annotated § 66-36-103 (Supp. 2021), which provides in pertinent 

part:

(a) In actions brought against a prime contractor, remote contractor, or 

design professional related to an alleged construction defect, the 

claimant shall, before filing an action, serve written notice of claim 

on the prime contractor, remote contractor, or design professional, as 

applicable. The claimant shall endeavor to serve the notice of claim 

within fifteen (15) days after discovery of an alleged defect, or as 

required by contract. Unless otherwise prohibited by contract, the 

failure to serve notice of claim within fifteen (15) days does not bar 

the filing of an action, subject to § 66-36-102.

* * *

(l) A claimant’s written notice of claim under subsection (a) tolls the 

applicable statute of limitations until the later of:

(1) One hundred eighty (180) days after the prime contractor, 

remote contractor, or design professional receives the notice; 

or

(2) Ninety (90) days after the end of the correction or repair 

period stated in the offer, if the claimant has accepted the 

offer. By stipulation of the parties, the period may be 

extended and the statute of limitations is tolled during the 

extension.
- 25 -

Tennessee Code Annotated § 66-36-101 (Supp. 2021), the definitional section applicable 

to the above statute, provides in pertinent part:

As used in this chapter:

(1) “Action” means any civil action or binding dispute resolution 

proceeding for damages or indemnity asserting a claim for damage 

to or loss of commercial property caused by an alleged construction 

defect, but does not include any civil action or arbitration proceeding 

asserting a claim for alleged personal injuries arising out of an 

alleged construction defect;

(2) “Claimant” means an owner, including a subsequent purchaser, 

tenant, or association, who asserts a claim against a prime contractor, 

remote contractor, or design professional concerning a construction 

defect;

(3) “Commercial property” means all property that is not residential 

property[.]

(Emphasis added.)

The trial court herein determined that the tolling provisions contained in 

Tennessee Code Annotated § 66-36-103 were inapplicable to the case at bar because 

Plaintiffs’ property is residential rather than commercial. We agree. As this Court has 

previously explained concerning the application of Tennessee Code Annotated § 66-36-

101, et seq.:

The term ‘action’ as used in Tenn. Code Ann. § 66-36-103 is defined in 

Tenn. Code Ann. § 66-36-101 as follows:

(1) “Action” means any civil action for damages or 

indemnity asserting a claim for damage to or loss of 

commercial property caused by an alleged construction 

defect, but does not include any civil action or arbitration 

proceeding asserting a claim for alleged personal injuries 

arising out of an alleged construction defect;

Tenn. Code Ann. § 66-36-101(1) (2004) (emphasis added). Commercial 

property is defined as “all property which is not residential property. 

Residential property is property upon which a dwelling or improvement is 

constructed or to be constructed consisting of one dwelling unit intended as 
- 26 -

a residence of a person or family.” Tenn. Code Ann. § 66-36-101(3) 

(2004).

The language of the statute is clear and unambiguous. It requires a 

claimant to provide notice prior to filing an action “for damage to or loss of 

commercial property . . . ,” not residential property. Tenn. Code Ann. § 66-

36-101(1) (2004) (emphasis added). As the statute is clear and 

unambiguous, we apply its plain meaning. See Shelby County Health Care 

Corp. [v. Nationwide Mut. Ins. Corp.], 325 S.W.3d [88,] 92 [(Tenn. 2010)].

In the case now before us on appeal, the Trial Court specifically 

found that the Contract was for the construction of a residential garage. 

The evidence in the record does not preponderate against this finding. As 

Defendant’s counterclaim is an action for damage to or loss of residential 

property, not commercial property, Defendant was not required to comply 

with Tenn. Code Ann. § 66-36-101 et seq.

Bates v. Benedetti, No. E2010-01379-COA-R3-CV, 2011 WL 978195, at *5-6 (Tenn. Ct. 

App. Mar. 21, 2011). Similarly, in this matter, it is undisputed that Plaintiffs’ claims 

relate to residential property rather than commercial property. Therefore, the provisions 

of Tennessee Code Annotated § 66-36-101, et seq., are inapplicable.

Plaintiffs argue that Tennessee Code Annotated § 66-36-103 has been applied in 

residential settings, relying on Greeter Constr. Co. v. Tice, 11 S.W.3d 907 (Tenn. Ct. 

App. 1999); Lavy v. Carroll, No. M2006-00805-COA-R3-CV, 2007 WL 4553016 (Tenn. 

Ct. App. Dec. 26, 2007); and Custom Built Homes by Ed Harris v. McNamara, No. 

M2004-02703-COA-R3-CV, 2006 WL 3613583 (Tenn. Ct. App. Dec. 11, 2006). We 

determine, however, that Plaintiffs’ reliance upon these cases is misplaced. In each of

these cases, this Court discussed the general principle of providing notice of a breach of 

contract and the opportunity to cure before termination of the contract; none of these 

cases contain any discussion or application of Tennessee Code Annotated § 66-36-101, et 

seq. See Greeter, 11 S.W.3d at 910; Lavy, 2007 WL 4553016, at *3; Custom Built 

Homes, 2006 WL 3613583, at *5. Accordingly, this argument is unavailing.

VII. Fraudulent Concealment

Plaintiffs additionally assert that the trial court erred by declining to determine that 

the accrual of the applicable statute of limitations was tolled by reason of the doctrine of 

fraudulent concealment. In their complaint, Plaintiffs averred that Defendants had told 

them on “the day of the Final Walkthrough” before closing, which undisputedly occurred 

in August 2017, that the utility penetrations in the crawl space had been sealed with 

foam. Plaintiffs claimed, however, that it was not until January 17, 2018, when they 

received the inspection report from Middle Tennessee Mold Remediation (“mold 
- 27 -

inspection”), that they learned this statement by Defendants was untrue. According to 

Plaintiffs, the mold inspection report revealed for the first time that Defendants had 

falsely represented that the utility penetrations were sealed. Plaintiffs maintained that 

this failure to seal the utility penetrations contributed to the moisture and mold problems 

in the home.

As our Supreme Court has explained concerning the fraudulent concealment 

doctrine:

For over a century now, Tennessee’s courts have also held that the 

doctrine of fraudulent concealment will toll the running of a statute of 

limitations. This doctrine is one of the oldest exceptions to the statute of 

limitations. While the doctrine of fraudulent concealment shares many of 

the attributes of the doctrine of equitable estoppel, Tennessee’s courts, like 

most courts, have recognized it as a free-standing doctrine. 

As it currently exists in Tennessee, the doctrine of fraudulent 

concealment is aligned with the discovery rule. Under the fraudulent 

concealment doctrine, the statute of limitations is tolled when “the 

defendant has taken steps to prevent the plaintiff from discovering he [or 

she] was injured.” Fahrner v. SW Mfg., Inc., 48 S.W.3d [141,] 146 [(Tenn. 

2001)]. 

* * *

A claim of fraudulent concealment to toll the running of a statute of 

limitations contains four elements. The plaintiff invoking the fraudulent 

concealment doctrine must allege and prove: (1) that the defendant 

affirmatively concealed the plaintiff’s injury or the identity of the 

wrongdoer or failed to disclose material facts regarding the injury or the 

wrongdoer despite a duty to do so; (2) that the plaintiff could not have 

discovered the injury or the identity of the wrongdoer despite reasonable 

care and diligence; (3) that the defendant knew that the plaintiff had been 

injured and the identity of the wrongdoer; and (4) that the defendant 

concealed material information from the plaintiff by “‘withholding 

information or making use of some device to mislead’ the plaintiff in order 

to exclude suspicion or prevent inquiry.”

Plaintiffs asserting the doctrine of fraudulent concealment to toll the 

running of a statute of limitations must demonstrate that they exercised 

reasonable care and diligence in pursuing their claim. See Vance v. 

Schulder, 547 S.W.2d 927, 930 (Tenn. 1977); Ray v. Scheibert, 224 Tenn.

99, 104, 450 S.W.2d 578, 580-81 (1969). The statute of limitations is 
- 28 -

tolled until the plaintiff discovers or, in the exercise of reasonable 

diligence, should have discovered the defendant’s fraudulent concealment 

or sufficient facts to put the plaintiff on actual or inquiry notice of his or her 

claim. See Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145. At the point when 

the plaintiff discovers or should have discovered the defendant’s fraudulent 

concealment or sufficient facts to put the plaintiff on actual or inquiry 

notice of his or her claim, the original statute of limitations begins to run 

anew, and the plaintiff must file his or her claim within the statutory 

limitations period.

Redwing, 363 S.W.3d at 461-63 (footnotes and other internal citations omitted).

In analyzing the fraudulent concealment issue, we determine a previous opinion 

from this Court to be instructive. See Riccardi v. Carl Little Constr. Co., No. E2020-

00678-COA-R3-CV, 2021 WL 3137251 (Tenn. Ct. App. July 26, 2021). In Riccardi, the 

plaintiff homeowner sued the defendant builder, alleging negligent construction of a 

residence that was completed in 2007. Id. at *1. The homeowner asserted in his 2014 

complaint that the builder had negligently built the home on non-compacted fill dirt, 

causing structural damage to the residence from settling of the dirt. Id. According to the 

homeowner, the home began to develop cracks in the walls and other issues soon after it 

was completed, and the builder repeatedly assured the homeowner over the ensuing years 

that the issues were due to “natural settling.” Id. However, in March 2014, the builder 

revealed to someone inspecting the home, in the presence of the homeowner, that the fill 

dirt beneath the home had not been properly compacted. Id. The homeowner claimed 

that this was the first occasion upon which he learned that there was any issue with the 

home’s structural integrity, thus rendering his September 2014 complaint timely. Id. 

The Riccardi trial court granted summary judgment in favor of the builder 

premised upon expiration of the applicable statute of limitations. Id. at *3. The trial 

court rejected the homeowner’s argument that the statute of limitations should be tolled 

due to the builder’s fraudulent concealment of the fact that the fill dirt upon which the 

home was constructed was not compacted. Id. Upon the homeowner’s appeal, this Court 

vacated the trial court’s grant of summary judgment in favor of the builder, determining 

that genuine issues of material fact existed concerning when the homeowner’s action 

accrued and whether the doctrine of fraudulent concealment would apply to toll the 

statute of limitations. Id. at * 10. 

Concerning application of the fraudulent concealment doctrine, the Riccardi Court 

determined that the homeowner had presented proof that the home was built on fill dirt 

that was not properly compacted and that this was a cause of the “excessive settlement 

problems” with the home. Id. The court noted that (1) the builder testified that he was on 

the job site daily during the home’s construction; (2) the builder knew that the fill dirt 

beneath the home was not properly compacted, (3) the builder admitted this fact to a third 
- 29 -

party at a later date and in the presence of the homeowner, (4) this fact would not have 

been readily observable or discoverable by the homeowner, and (5) the trier of fact could 

reasonably conclude from the evidence that the builder knew his assurances to the 

homeowner regarding “natural settling” were untrue. Id. This Court further noted that 

questions concerning fraud or fraudulent concealment were fact-intensive, typically 

presenting issues for the trier of fact that were inappropriate for summary disposition. Id. 

at *9.

Similarly, in this matter, Plaintiffs averred in their complaint that they were 

explicitly told by Tony Maher and JMB’s project manager in August 2017 that the utility 

penetrations in the crawl space had been sealed with foam. Plaintiffs further averred that 

they learned on January 17, 2018, when they received the mold inspection report, that 

this had not been done. According to Plaintiffs, this was the first time they had 

knowledge of the fact that Defendants had falsely represented that the utility penetrations 

beneath the home were sealed. Plaintiffs also asserted that this failure to seal the utility 

penetrations contributed to the moisture and mold problems in the home.

We reiterate that when reviewing the trial court’s grant of a motion to dismiss, this 

Court must review “the trial court’s legal conclusions regarding the adequacy of the 

complaint de novo.” Webb, 346 S.W.3d at 426. In doing so, this Court should presume 

that all factual allegations contained in the complaint are true and give Plaintiffs the 

benefit of all reasonable inferences. Id. This Court should only affirm the grant of a 

motion to dismiss when it appears that the “plaintiff can prove no set of facts in support 

of the claim that would entitle the plaintiff to relief.” Id. (citing Crews v. Buckman Labs. 

Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)).

Accepting the allegations in Plaintiffs’ complaint as true, we determine that 

Plaintiffs’ factual allegations have satisfied the following elements required to 

demonstrate fraudulent concealment: (1) Defendants affirmatively concealed and/or 

failed to disclose material facts regarding a cause of the injury to Plaintiffs’ property

despite a duty to do so; (2) Defendants knew that Plaintiffs had been injured and the 

identity of the wrongdoer; and (3) Defendants concealed material information from 

Plaintiffs by “‘withholding information or making use of some device to mislead’ the 

plaintiff in order to exclude suspicion or prevent inquiry.” See Redwing, 363 S.W.3d at

463. Moreover, “[w]hether the plaintiff exercised reasonable care and diligence in 

discovering the injury or wrong” is typically a fact question for the trier of fact to 

determine. Wyatt v. A-Best Co., 910 S.W.2d 851, 854 (Tenn. 1995). 

We conclude that a trier of fact could determine that Plaintiffs, in the exercise of 

reasonable care and diligence, could not have discovered this potential cause of their 

injury until January 2018 due to Defendants’ attempts to conceal this cause. If so, the 

statute of limitations would not have begun to run until that date, rendering Plaintiffs’ 

claims subject to the three-year statute of limitations timely filed.
- 30 -

Based on the facts alleged by Plaintiffs in their complaint, we further conclude that 

it is not clear that Plaintiffs can prove no set of facts in support of their claim that would 

entitle them to relief. See Webb, 346 S.W.3d at 426. Ergo, we determine that the trial 

court erred by granting Defendants’ motion to dismiss with respect to Plaintiffs’ claims 

concerning injury to their property allegedly caused by Defendants’ failure to seal the 

utility penetrations beneath the home, which were subject to the statute of limitations 

contained in Tennessee Code Annotated § 28-3-105 but which were allegedly 

fraudulently concealed by Defendants. We therefore vacate that portion of the trial 

court’s judgment and remand those claims to the trial court for further disposition.

VIII. Applicability of Tennessee Code Annotated § 39-14-154

Plaintiffs also urge that the trial court erred by failing to specifically rule on their 

claim brought pursuant to Tennessee Code Annotated § 39-14-154 (2018), which 

provides in pertinent part:

(a) For purposes of this section, unless the context otherwise requires:

* * *

(5) “New home contractor” means any person who offers 

or provides new home construction services as a 

general contractor or a subcontractor, including, but 

not limited to, an architect or engineer;

(6) “New home construction” means the erection, 

installation, design work, engineering work, permitting 

through a governmental entity, architectural design, 

obtaining construction financing, or construction of a 

dwelling on a fixed foundation on land which is owned 

or purchased by a home buyer;

(7) “New home construction contract” means a contractual 

agreement, written or oral, between a new home 

contractor and a home buyer whereby the new home 

contractor agrees to provide new home construction 

services in exchange for tender of money or other 

consideration of value by a home buyer or by any 

lending institution on behalf of the home buyer to a 

new home contractor as part of a new home 

construction contract;
- 31 -

* * *

(b) It is an offense for a new home construction contractor or home 

improvement services provider with intent to defraud to:

(1)(A) Fail to refund amounts paid under a new home 

construction contract or a contract for home 

improvement services within ten (10) days of:

(i) The acceptance of a written request for a refund 

either hand delivered or mailed certified mail 

return receipt attached;

(ii) The refusal to accept the certified mail sent to 

the last known address of the new home 

contractor or home improvement services 

provider by the home buyer or residential 

owner; or

(iii) The return of the certified mail to the home 

buyer or residential owner indicating that the 

addressee is unknown at the address or a similar 

designation if the provider failed to provide to 

the home buyer, residential owner, or the 

United States postal service a correct current or 

forwarding address;

(B) A violation of subdivision (b)(1)(A) is an offense only 

if:

(i) No substantial portion of the new home 

construction or home improvement services 

work has been performed at the time of the 

request;

(ii) More than ninety (90) days have elapsed since 

the starting date of the new home construction 

contract or contract for home improvement 

services; and

(iii) A copy of the written request for a refund was 

sent by the home buyer or residential owner to 
- 32 -

the consumer protection division of the office of 

the attorney general;

(2) Deviate from or disregard plans or specifications in 

any material respect that are contained in a new home 

construction contract or contract for home 

improvement services; provided, that the home buyer 

or residential owner did not provide written consent 

for the new home contractor or home improvement 

services provider to deviate from or disregard plans or 

specifications in the contract and such deviation or 

disregard caused substantial damage to the home buyer 

or residential owner’s property in that the value of the 

new construction was less than the value had it been 

built in accordance with the plan and contract. Such 

deviation includes, but is not limited to:

(A) The amount billed for the new home 

construction contract or contract for home 

improvement services is substantially greater 

than the amount quoted in the contract; or

(B) The materials used in the project are of a 

substandard quality but the home buyer or 

residential owner was charged for higher quality 

materials.

(c)(1) A violation of subsection (b) is punishable as theft pursuant to § 39-

14-105. Value for a violation of subsection (b), shall be determined 

by the monetary amount of the new home construction contract or 

contract for home improvement services that is paid, minus the value 

of any work performed, plus the cost to repair any damage to the 

home buyer or residential owner’s property caused by the new home 

contractor or home improvement services provider.

* * *

(4) In addition, such a violation shall be construed to constitute an unfair 

or deceptive act or practice affecting the conduct of trade or 

commerce under the Tennessee Consumer Protection Act of 1977, 

compiled in title 47, chapter 18, and as such, the private right of 

action remedy under that act shall be available to any person who 

suffers an ascertainable loss of money or property, real, personal, or 
- 33 -

mixed, or any other article, commodity, or thing of value wherever 

situated as a result of such violation.

(Emphasis added.)

Plaintiffs contend that the trial court erred in failing to consider their claim for 

damages brought pursuant to Tennessee Code Annotated § 39-14-154. However, 

numerous issues exist with respect to Plaintiffs’ reliance upon this statute as a means of 

recovery. First and foremost, we note that this statute appears in the section of the Code 

dealing with criminal offenses and that it primarily prescribes a criminal penalty. 

Second, to the extent that Plaintiffs appear to seek recovery under Tennessee Code 

Annotated § 39-14-154(b)(1)(A), the statute contains several elements that must be 

proven in order to establish a violation of its terms, including not only a request for 

refund, as Plaintiffs contend, but also existence of all three factors presented in 

subsection (b)(1)(B). As our Supreme Court has explained, “statutory phrases separated 

by the word ‘and’ are usually to be interpreted in the conjunctive.” Stewart v. State, 33 

S.W.3d 785, 792 (Tenn. 2000) (citing Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t 

of Nashville, 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990) (stating that the word “‘and’ is 

a conjunctive article indicating that the portions of the sentence it connects should be 

construed together”)).

Finally, assuming, arguendo, that Plaintiffs were able to prove all of the required 

elements to establish a violation of Tennessee Code Annotated § 39-14-154, the only 

private right of action provided to a plaintiff alleging a violation would be pursuant to the 

Tennessee Consumer Protection Act. As the trial court correctly concluded, Plaintiffs’ 

claims based upon the Tennessee Consumer Protection Act were subject to a one-year 

statute of limitations and were, accordingly, untimely. See Tenn. Code Ann. § 47-18-110

(2013). We therefore determine that this issue is without merit.

IX. Applicability of Tennessee Code Annotated § 47-18-1402

Plaintiffs assert that the trial court erred in declining to allow their warranty claim,

brought pursuant to Tennessee Code Annotated § 47-18-1402, to proceed. This statutory 

section is known as the Tennessee Consumer Protection Warranty Extension Act 

(“TCPWEA”), which specifically provides that it applies to any “written warranty or 

service contract purchased in this state on or after July 1, 1989, and in effect when there 

is a failure of the product under such written warranty or service contract[.]” Tenn. Code 

Ann. § 47-18-1402 (2013). The statute provides that the warranty shall be extended by 

the “number of days the consumer is deprived of the use of the product by reason of the 

product being in repair; plus” “[t]wo (2) additional working days.” Id. 

The trial court determined that Plaintiffs could not state a claim pursuant to 

Tennessee Code Annotated § 47-18-1402 because the statute, by its express terms, 
- 34 -

applied to consumer products rather than homes. We agree, relying upon well-settled 

Supreme Court precedent, which provides as follows:

When construing a statute, this Court’s role is “‘to ascertain and give effect 

to the legislative intent without unduly restricting or expanding a statute’s 

coverage beyond its intended scope.’” Houghton v. Aramark Educ. Res., 

Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens v. State, 908 

S.W.2d 923, 926 (Tenn.1995)). Legislative intent is determined “from the 

natural and ordinary meaning of the statutory language within the context 

of the entire statute without any forced or subtle construction that would 

extend or limit the statute’s meaning.” State v. Flemming, 19 S.W.3d 195, 

197 (Tenn. 2000). “When the statutory language is clear and unambiguous, 

we apply the plain language in its normal and accepted use.” Boarman v. 

Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003).

Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). 

By its clear language, Tennessee Code Annotated § 47-18-1402 applies to a 

purchased “written warranty or service contract” applicable to a “product.” As the trial 

court noted, the definition of a “product” typically envisions “something that is 

distributed commercially for use or consumption.” See BLACK’S LAW DICTIONARY 1328 

(9th ed. 2009). Accordingly, a product usually involves an item of tangible personal 

property rather than real property. See, e.g., Tenn. Code Ann. § 29-28-102(5) (2012)

(provision in products liability statute defining a product as “any tangible object or goods 

produced”). Therefore, as the trial court concluded, Plaintiffs have failed to demonstrate 

that Tennessee Code Annotated § 47-18-1402 has any applicability to their claims in the 

case at bar.

4

Plaintiffs rely upon our Supreme Court’s opinion in Dixon v. Mountain City 

Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982), as support for their postulate that a 

residential home can be considered a “product.” In Dixon, the High Court cited an earlier 

unreported decision of this Court that had purportedly suggested such a conclusion as a 

means of “circumvent[ing] the doctrine of caveat emptor” as it served to negate an 

implied warranty concerning the construction of a home. Id. at 540. However, our High

Court proceeded to state that it “disapprove[d] of the adoption of circumvention 

theories,” choosing instead to adopt an implied warranty of good workmanship in a 

construction contract that did not explicitly provide such a warranty. Id. at 541-542. As 

such, Dixon does not support Plaintiffs’ characterization of a home as a “product.” 

 

4 We note that in this case, Plaintiffs purchased the home and the parcel of real property upon which it 

was constructed from Defendants. We have not been asked to consider and therefore make no 

determination concerning whether a home contracted to be built upon land already owned by a plaintiff 

might be considered a “product.”
- 35 -

X. Due Process

Plaintiffs assert that the trial court violated their right to due process by dismissing 

Plaintiffs’ claims and allegedly failing to follow the Tennessee Rules of Civil Procedure. 

By way of example, Plaintiffs argue that the trial court violated procedural rules by 

dismissing their claims without a trial, allowing Defendants extra time to respond to 

Plaintiffs’ March 15, 2021 amended emergency motion, and failing to conduct an 

additional hearing thereafter. 

As our High Court has elucidated:

Due process, at its most basic level, “mean[s] fundamental fairness 

and substantial justice.” Vaughn v. State, 3 Tenn. Crim. App. 54, 456 

S.W.2d 879, 883 (1970). Due process acts as a constraint on “both the 

procedures used by the government and the substance of legislation 

interfering with personal liberties.” 2 Chester James Antieau & William J. 

Rich, Modern Constitutional Law § 40.00, at 558 (2d ed. 1997) []. As to 

the first constraint, one of the most basic due process requirements “is a fair 

trial in a fair tribunal.” 6A Tenn. Jur. Constitutional Law § 77.

State v. White, 362 S.W.3d 559, 566 (Tenn. 2012). Moreover, “procedural due process 

ensures that litigants are ‘given an opportunity to have their legal claims heard at a 

meaningful time and in a meaningful manner.’” In re Walwyn, 531 S.W.3d 131, 138 

(Tenn. 2017) (quoting Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)).

However, as this Court has also previously explained:

Procedural due process . . . does not prevent deprivations of “life, 

liberty, or property” but instead it simply “requires state and local 

governments to employ fair procedures when they deprive persons of a 

constitutionally protected interest in ‘life liberty, or property.’” Cheatham 

County v. Cheatham County Bd. of Zoning Appeals, No. M2012-00930-

COA-R3-CV, 2012 WL 5993757, at *3 (Tenn. Ct. App. Nov. 30, 2012) 

(quoting Parks Props. v. Maury County, 70 S.W.3d 735, 743 (Tenn. Ct.

App. 2001)). . . . It is clear, however, “that a state may erect reasonable 

procedural requirements for triggering the right to an adjudication, such as 

statutes of limitations, and a state may terminate a claim for failure to 

comply with a reasonable procedural rule without violating due process 

rights.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).

Webb v. Roberson, No. W2012-01230-COA-R9-CV, 2013 WL 1645713, at *20 (Tenn. 

Ct. App. Apr. 17, 2013). “The purpose of the statute of limitations is to avoid 
- 36 -

adjudication of stale claims and to give defendants notice to preserve their evidence.” 

Gamble v. Hosp. Corp. of Am., 676 S.W.2d 340, 343 (Tenn. Ct. App. 1984).

In the case at bar, Plaintiffs’ claims were dismissed due to expiration of the 

applicable statute of limitations. The trial court’s dismissal of Plaintiffs’ claims on such 

basis was not violative of Plaintiffs’ due process rights. See Webb v. Roberson, 2013 WL 

1645713, at *20. Plaintiffs further contend, however, that the trial court violated their 

due process rights by failing to comply with various procedural rules related to other 

actions taken by the court.

Plaintiffs insist that the trial court violated the Tennessee Rules of Civil Procedure 

by failing to conduct a “new hearing” following the trial court’s April 6, 2021 order 

wherein the court acknowledged Plaintiffs’ argument that the court failed to consider 

matters stated in Plaintiffs’ amended response to the motion to dismiss, which the court 

had not seen at the time of its ruling. In its April 6, 2021 order, the court therefore 

directed Defendants to file a response within ten days, at which time the court would 

either rule based on the pleadings or set the matter for further hearing. Although the trial 

court eventually made a determination concerning Plaintiffs’ motions based on the 

written submissions only, such action does not constitute a violation of due process. See 

Jerkins v. McKinney, 533 S.W.2d 275, 279 (Tenn. 1976) (explaining that “[o]ral 

argument is especially unnecessary when only questions of law are concerned” in a 

motion and that “due process is not offended by denial of the opportunity for the 

presentation of argument” in such cases).

Plaintiffs similarly argue that the trial court violated the Tennessee Rules of Civil 

Procedure by allowing Defendants to file a response to Plaintiffs’ amended response to 

the motion to dismiss when Defendants had purportedly failed to do so “within the fifteen 

(15) day requirement by the Rules of Civil Procedure and subsequently [Defendants] fell 

under the Rule of Civil Procedure 12.08 waiving all rights to a Defense for [Defendants’]

failure to respond to either the March 9 or the March 15, 2021 Motions and 

Memorandums of Law[.]” We note, however, that Tennessee Rule of Civil Procedure 

12.08 involves the waiver of a legal defense to a claim for failure to present that defense 

by motion or answer following filing of the complaint. In their response, Defendants 

were not stating additional legal defenses to claims; rather, they were replying to

arguments contained in Plaintiffs’ amended response to the motion to dismiss. Moreover, 

Defendants were not required to file a reply to Plaintiffs’ amended response by the 

Tennessee Rules of Civil Procedure. The fact that the trial court afforded Defendants an 

opportunity to respond to an amended response to the Defendants’ motion is not violative 

of any procedural rules or Plaintiffs’ due process rights. 

The trial court fully considered and ruled upon Plaintiffs’ arguments contained in 

their amended response to the motion to dismiss, as demonstrated by the court’s May 7, 

2021 order. As such, Plaintiffs were afforded fundamental fairness and the opportunity 
- 37 -

to have their arguments considered. Plaintiffs have demonstrated no deprivation of their 

due process rights.

XI. Alleged Trial Court Prejudice

Plaintiffs assert that the trial court exhibited prejudice against Plaintiffs and in 

favor of Defendants by providing “latitude for” Defendants and demonstrating “harsh 

treatment” toward Plaintiffs. Plaintiffs contend that the trial court acted in a manner that 

was violative of Plaintiffs’ constitutional rights during the entire proceedings.

Our review of the trial court’s rulings in this matter reveals no showing of 

prejudice for or against either party by the trial court. Moreover, we note that although 

Plaintiffs posit in the argument section of their principal brief that the trial court judge 

should have recused himself, the record does not demonstrate that Plaintiffs ever filed in 

the trial court a motion to recuse the trial court judge pursuant to Tennessee Supreme 

Court Rule 10B. Plaintiffs also did not present a specific issue on appeal regarding 

recusal of the trial court judge. See Tenn. R. App. P. 13(b) (“Review generally will 

extend only to those issues presented for review.”). We therefore determine that 

Plaintiffs have effectively waived any issue concerning recusal of the trial court judge at 

this juncture. See, e.g., Xcaliber Int’l Ltd., LLC v. Tenn. Dep’t of Revenue, No. M2017-

01918-COA-R3-CV, 2018 WL 4293364, at *17-18 (Tenn. Ct. App. Sept. 10, 2018) 

(concluding that the plaintiff had waived a request for reassignment to a different trial 

court judge on remand when the plaintiff had not filed a motion for recusal and had failed 

to raise the issue in its statement of the issues on appeal).

XII. Temporary Restraining Order

Plaintiffs posit that the trial court erred by failing to enter a temporary restraining 

order to prevent Plaintiffs’ home from going into foreclosure in order to “preserve 

Plaintiffs’ evidence.” However, Plaintiffs have failed to demonstrate that they properly 

applied for the trial court to issue such an order. Tennessee Rule of Civil Procedure 65

sets forth certain requirements for obtaining a temporary restraining order, including the 

filing of “an affidavit or a verified complaint clearly show[ing] that immediate and 

irreparable injury, loss, or damage will result to the applicant before the adverse party can 

be heard in opposition; and” “the applicant’s attorney (or pro se applicant) certifies in 

writing efforts made to give notice and the reasons why it should not be required.” Tenn. 

R. Civ. P. 65.03. Moreover, Tennessee Rule of Civil Procedure 65.02 states that a 

restraining order is “binding upon the parties to the action, their officers, agents and 

attorneys; and upon persons in active concert or participation with them who receive 

actual notice of the restraining order or injunction by personal service or otherwise.” 

Plaintiffs’ mortgage holder is not a party to this action and has not been shown to have 

been in active concert with Defendants. 
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In addition, Tennessee Code Annotated § 29-23-201 provides in pertinent part:

(a) No judge or chancellor shall grant an injunction to stay the sale of real 

estate conveyed by deed of trust or mortgage, with a power of sale, 

executed to secure the payment of a loan of money, unless the complainant 

gives five (5) days’ notice to the trustee or mortgagee of the time when, 

place where, and of the judge or chancellor before whom, the application 

for injunction is to be made.

The record does not demonstrate Plaintiffs’ compliance with the requirements of 

Tennessee Rule of Civil Procedure 65.03 or Tennessee Code Annotated § 29-23-201. As 

such, this issue is without merit.

XIII. Purported Violation of Rules of Professional Conduct

Plaintiffs contend that the trial court erred by failing to conclude that Defendants’ 

counsel was in violation of Tennessee Supreme Court Rule 8, Rule of Professional 

Conduct 1.6, for allegedly neglecting to uphold his duty to ensure that his clients did not 

cause financial or physical harm to Plaintiffs. We note, however, that Defendants’ 

counsel is not a named defendant in this action and that Plaintiffs have asserted no claims 

against him individually. For this reason, Plaintiffs’ contention is without merit.

XIV. Remaining Issues

Finally, Plaintiffs raise issues concerning whether the trial court erred by allegedly 

“changing” a date of service or by failing to utilize the procedure related to a motion for 

summary judgment rather than a motion to dismiss. However, Plaintiffs neglected to 

offer support for these issues in the argument section of their brief, failing to state “the 

contentions of the appellant[s] with respect to the issues presented, and the reasons 

therefor, including the reasons why the contentions require appellate relief, with citations 

to the authorities and appropriate references to the record . . . relied on[.]” Tenn. R. App. 

P. 27(a)(7)(A). See Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)

(“The failure of a party to cite to any authority or to construct an argument regarding his 

position on appeal constitutes waiver of that issue.”); Childress v. Union Realty Co., 97 

S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“[W]hen a party raises an issue in its brief, but 

fails to address it in the argument section of the brief, we consider the issue to be 

waived.”). Accordingly, these issues are deemed waived.

XV. Conclusion

For the foregoing reasons, we determine that although the trial court properly 

applied the three-year statute of limitations to Plaintiffs’ claims of injury to their real 

property, the trial court improperly determined that the doctrine of fraudulent 
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concealment would not apply to toll the accrual of such limitations period concerning 

Plaintiffs’ claims for damages caused by Defendants’ failure to seal the utility 

penetrations beneath the home, a fact which allegedly was concealed by Defendants. We 

also determine that Plaintiffs stated claims of breach of contract, including breach of any 

express or implied warranties provided by the contract, and that the trial court improperly 

dismissed these claims based on the incorrect statute of limitations. We therefore vacate 

the trial court’s dismissal of the breach of contract and contractual warranty claims, as 

well as the claims based on Defendants’ failure to seal the utility penetrations, and we 

remand those claims to the trial court for further proceedings consistent with this opinion. 

We affirm the remaining portion of the trial court’s judgment in its entirety. Costs on 

appeal are assessed to the appellees, John Maher Builders, Inc.; John Maher; and Tony 

Maher.

s/ Thomas R. Frierson, II

_________________________________

THOMAS R. FRIERSON, II, JUDGE