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Whaley v. Perkins7/21/2005
involve a promise of future action with no present intent to perform. Nondisclosure will give rise to a claim for fraud when the defendant has a duty to disclose and when the matters not disclosed are material.
Spectra Plastics, Inc. v. Nashoba Bank, 15 S.W.3d 832, 840-1 (Tenn. Ct. App.,1999) (quoting Axline v. Kutner, 863 S.W.2d 421 (Tenn. Ct. App. 1993)). Under the elements of fraudulent misrepresentation as they are set out in Spectra Plastics, there are two ways in which a party can be liable for fraudulent misrepresentation: by (a) making an intentional misrepresentation of material fact, or by (b) not disclosing a material fact that a party has a duty to disclose. It is clear that Ms. Perkins did not make an intentional misrepresentation to the Whaleys. There was no evidence adduced at trial that Ms. Perkins had made any representations to the Whaleys prior to, or during, their purchase of the subject property. Since she made no representations to the Whaleys whatsoever, Ms. Perkins clearly did not make any intentional misrepresentations to the Whaleys that would subject her to liability for fraudulent misrepresentation. With regard to non-disclosure of a material fact, we conclude that Ms. Perkins cannot be liable for fraudulent misrepresentation on this basis, either. Ms. Perkins had conveyed four acres of her property to the Beshires several years prior to the Whaleys' purchase of the property that is the subject of this appeal. We find no authority under Tennessee (nor do the Whaleys direct us to any) supporting the proposition that Ms. Perkins had any duty to the Whaleys. She had not been the owner of the subject property for several years. It is conceded by all parties that Ms. Perkins was not involved in the sale of the property to the Whaleys. It cannot be said that Ms. Perkins had a duty to disclose any information to the Whaleys and Ms. Perkins cannot be deemed to be liable for fraudulent misrepresentation on this basis.
Therefore, we agree with the Appellants that there was no material evidence to support the jury's verdict that Ms. Perkins was liable for fraudulent misrepresentation. The trial court's refusal to grant Ms. Perkins' motion for directed verdict as to intentional misrepresentation constitutes reversible error.
2. Did the trial court commit reversible error when it denied Perkins' motion for judgment N.O.V. on the issue of negligence per se for alleged violations of statutes and ordinances prohibiting transfers of tracts of property less than four acres without subdivision approval, when there was no material evidence to support that verdict?
Appellants next contend that the trial court erred in refusing to grant judgment N.O.V. on the issue of negligence per se. At the close of proof, the trial court instructed the jury on negligence per se, stating as follows:
And in the state of Tennessee a person who violates a state statute or municipal ordinance is negligent. However a person violates a statute or ordinance is not at fault unless you also find that a violation was a legal cause of the injury or damage for which claim has been made.
With regard to the allegations of negligence per se or violation of the statutes or ordinances, Tennessee Code Annotated reads as follow - and this is on a part of the statute but for our purposes it reads that no plat of a subdivision of land shall be recorded until it shall have been approved by the regional planning commission.
Tennessee Code Annotated 13-3401 read in pertinent part that subdivision means any division of 5-acres or less for the purpose whether immediate or future of sale or building development. Tennessee Code Annotated 13-3403 reads that in e
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