Whaley v. Perkins7/21/2005
I. PROCEDURAL HISTORY
On May 26, 1998, Appellees, Forrest L. Whaley and Margaret Ann Whaley, filed a complaint for breach of contract, misrepresentation, and breach of warranty of title against Jim Ann Perkins, Albert Lewis Beshires, Terry Lynn Beshires, and First American Title Insurance Company of the Mid-West. On June 5, 1998, Perkins filed a motion to dismiss and answer. On July 2, 1998, the Whaleys filed a second complaint for money damages against Jim Thompson, Barbara Thompson, d/b/a Thompson Real Estate , Shirley Perkins and Mary Jane Smith, d/b/a Banyan Tree Realtors. On July 27, the Beshires filed a separate motion to dismiss and answer. On September 16, 1998, the Whaleys filed an amended complaint adding as a defendant M. Stephen Brandon, who acted as closing attorney for the Whaleys in their purchase of the property. On November 17, 1998, the Beshires filed a motion to dismiss and answer to the Whaleys' amended complaint, incorporating their original defenses and alleging that any damages the Whaleys may have sustained resulted from the negligence of Brandon. On November 17, 1998, Perkins also filed a motion and answer to the Whaley complaint, reiterating the original defenses and also alleging that any damages the Whaleys may have sustained resulted from the negligence of Brandon.
On October 16, 2000, the Whaleys filed a Notice of Voluntary Non-suit as to Brandon, which was entered by the trial court on December 11, 2000. On October 20, 2000, an Order was entered in the Trial Court granting the motion to amend their complaint. On October 25, 2000, the Whaleys second amended complaint, which primarily added a count for damages for emotional distress, was filed against defendants. On November 6, 2000, Thompson filed an Answer and Motion to Dismiss the Whaleys' second amended complaint. On December 1, 2000, Banyan Tree filed its answer and motion to dismiss the Whaleys' Second Amended Complaint. On February 15, 2002, the trial court, in response to motions for summary judgment, ruled that "the mental and emotional distress allegedly suffered by the Whaleys arises as a result of the injury to their property and the three year statute applies." The trial court also granted American's motion for summary judgment, finding that "the purpose of the title policy was to address issues relating to legal ownership, not value." On August 7, 2002, the trial court entered an order denying the Whaleys' motion for reconsideration of the grant of summary judgment as to First American, and certified that summary judgment as a final judgment pursuant to TRCP Rule 54.02.
On March 30, 2004, in response to the Whaleys' appeal from the award of summary judgment as to First American, this Court entered an Order Affirming the Judgment of the Trial Court and dismissing the Whaleys' claims against First American. This Court also affirmed the trial court's grant of summary judgment to Lawyer's Title and dismissed the Whaleys' claims against it.
On May 19, 2003, Perkins and Beshires filed a consolidated answer to the Whaleys' second amended complaint.
A jury trial took place from April 4, 2004 through April 13, 2004. On April 13, 2004, at the close of the Whaleys' proof, Perkins moved for directed verdict, arguing that the proof showed that Perkins had played no part in the sale of the property to the Whaleys, that the Whaleys had not relied in any manner upon Perkins, and that the Whaleys' claim for damages for emotional distress were barred by the one-year statute of limitations governing personal injury. The trial court took the motions under advisement. At the close of the proof, Perkins renewed her motions for directed verdict. This motion was denied by the t
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