# FILED June 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

DAV ID A. W ILHO ITE, S R., ET UX., ) C/A NO. 03A01-9801-CH-00004 ) Plaintiffs-Appellants, ) COCKE CHANCERY ) v. ) HON . CHE STER S. RA INW ATE R, JR., ) CHANCELL OR NINA B. PR OFF ITT, E T AL ., ) ) AFFI RMED AND Defendants-Appellees. ) REMANDED
JAMES M . CRAIN, Knoxv ille, for Plainti ffs-Appellants. CLYDE A. DUNN,

Newpor t, J AMES McSWEEN a

nd FRED HOL

T, McSWEEN & McSWEEN , Newport, and JAMES RIPLEY, SHARP & RIPLEY, Sevierville, for Defendants-Appellees.

O P I N I O N Franks, J.
In this act

ion plainti

ffs sought resci ssion of the purchas e of a motel or damages, based upon all eged fraudulent misr

epresentations during negotia tions for the purchase. Plai

ntiffs sued the

owners, a real es tate firm, Barbara’s Real Estat e, and the Trustee. On September 8,1994, plainti ffs agreed to purchas e the property and received a deed to t

he property on Sept

ember 13, 1994. They el ected not to make any payments on their loan an d the prop erty was fore closed in N ovembe r, 1995. Th is action was filed pr

ior to forecl

osure on February

7, 1995. Defendant Barbara’s Realt y filed a moti

on for summary judgment which was ultimately

granted by t

he Trial Judge. The gr

avamen of plaintiff

s’ complaint was that when they fi

rst contact

ed a representat

ive of Barbara’s Real

ty on July

22, 1994, they were advis ed by the repr esentative t

hat there would be new highway constructi on,2

making the highway “coming by the motel” int

o four lanes which would be complet ed in two to three y

ears. The exist

ing highway at t

hat time comprised two lanes. After the sale was consummated,plaintiffs contacted the St

ate Highway Department and determined that

while there were pla

ns to build a four l

ane highway in the vi

cinity , the planned h ighway did n ot go by the m otel.

Barbara’s Real Estat

e essential

ly argued i

n their motion t

hat the representat

ions did not const

itute act ionable fraud, citing Oak Ridge Precision v. First Tennessee Bank , 835 S.W.2d 25 (Tenn. App. 1992). We agree for reasons herei nafter set forth. Subsequent to the gr ant of the summary j udgment, plaint iffs amended their complai

nt to stat e that they

had inquired of Barbara ’s represent ative about t

he financial re

cords of the motel,

in order that

they could j udge the profitabi lity of the operation, and t

hey were advised t

hat the motel had bee

n “shut down for the proceeding two year

s” and consequently

there were no records

available,when in fact the motel had been in ope ration. After

the trial , the Chancellor, without a jur y, found that the evi dence did not “sust ain fraud” on the par

t of the defendants . The Judge said: This Court finds t hat the plai

ntiffs have wholly

failed to sust

ain or show by a preponderance of t he evidence, any

evidence of fraud on the par t of these defendants or

any one of these defe

ndants. The manner was handled completely

above board. The parti es had available

to them any and all knowledge that

a reasonable and res

ponsible person would s eek, and had the me ans of obtaining it if they had so see n fit, and they can’t come in a t a later date an d seek to h ave som ething set asid e because , in retrospect, it app ears to be an unwise d ecision on th eir part. The evid ence doe s not prepo nderate ag ainst the Ch ancellor’s fin ding, T.R .A.P. Rule 13(d). We note that the real estate agent a

llegedly making the represent

ations to pl ainti ff w as T om G ools by, an d pla intif f tes tifie d tha t he c onta cted Mr. Goo lsby,1 The multiple listing agent for the sale o f the motel was ERA Pioneer Re alty of Sevierville.
3 and plaintiff

further charact

erized Mr. Goolsby

as “our real est

ate agent”. 1 He further elaborated: [W]e authorized him to pr esent the offer a

nd negotiate t

he transaction for the mo tel. The record demonstrate s that plai ntiffs essent

ially made no independent invest igation or checks on the motel

property pr

ior to purchase.Plaintiff David Wil hoite explai

ned: I’ve gone through a lot of real est ate transact

ions in Califor

nia, and I had done research and had been ver y successful

at buying and se

lling real estate, and alw ays made m oney. But as I w as making preparation s to come home, I pretty

much let my guard down thi nking I was dealing with go od han dshak e peop le. . . . As to plaintiffs’ contention that the agent fraudulently

misrepresented that the motel had not been in operat

ion in the last two years, the record est

ablishes tha

t plainti ff could have readil

y ascerta ined the motel had,

in fact, been i

n operation. Moreover, the evidence preponderates that this statement was not an inducement to plaintiffs’ purchasing the motel . As for the repres entation as t o the locati on of a new four lane highwa y, the record also shows th at this inform ation could have bee n readily ascertained by plaintiff, wh ich was d emonstra ted by the fact th at the plaintiff readily obtaine d infor mation as to the location shortly af ter purc hasing the mo tel.

We believe the Rule set forth in Winste ad v. F irst Ten nessee Bank , N.A., Mem phis , 709 S.W.2d 627 (Tenn. App. 1986) cont rols. There,this Court sai d: [W]here the mean s of inform ation are at ha nd and eq ually accessible to both parties, so that with ord inary prudenc e or diligenc e, they might rely on their own judgment, ge nerally they must be pr

esumed to have done so, or, if t

hey have not infor

med themselves, t

hey must abide t

he consequences of their

own inattention a

nd carelessness . Unless the representat

ions are such as ar

e calculated t

o lull the suspicions of a careful m an into a co mplete relian ce thereon , it is not comm only held, in the absence of speci al circumstanc es, that,where the means of knowledge are readily available, and the vendor or purchaser as the case may be, has the oppor

tunity by investi

gation or inspection to dis cover the truth wit

h respect to matt

ers concealed or mis

represented,without4 prevention or hi

ndrance by the ot

her party,

of which opportunity

he is or should be aware, and where he never theless fai

ls to exerci se that opportunity

and to discover t

he truth, he ca

nnot, thereaf

ter assail the validity of the co ntract for fra ud, misrepr esentation o r concealm ent with respec t to matte rs whic h shou ld have been a scertain ed. . . . 709 S.W.2d at 633.

We affirm the Chancellor’s finding that plaintiffs failed to est ablish actiona ble frau d by a pre ponde rance o f the ev idence
.

We have considered all i ssues raised by the plainti

ffs, find them t

o be without merit,

and affirm the judgment of the Trial Court

and remand with costs of t he appeal assessed to appellants.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.