Atkins v. Kirkpatrick

• Court: Tennessee Court of Appeals
• Writing for the Court: TOMLIN
• Citation: Atkins v. Kirkpatrick, 823 S.W.2d 547 (Tenn. App. 1991)
• Decision Date: 05 July 1991
• Parties: A. Cushman ATKINS and wife, Beresha Atkins, Plaintiffs/Appellants, v. E.F. KIRKPATRICK and wife, Janice Kirkpatrick and Barbara Parrish, Defendants/Appellees.

Page 547

823 S.W.2d 547

A. Cushman ATKINS and wife, Beresha Atkins Plaintiffs/Appellants, v. E.F. KIRKPATRICK and wife, Janice Kirkpatrick and Barbara Parrish, Defendants/Appellees.

Court of Appeals of Tennessee,

Western Section,

at Nashville.

July 5, 1991.

Application for Permission to Appeal

Denied by

Supreme Court

Dec. 2, 1991.

Jessica Dugger and Jere McCulloch, Lebanon, for plaintiffs/appellants.

Robert L. Callis, Mt. Juliet, for defendants/appellees E.F. Kirkpatrick and wife, Janice Kirkpatrick.

John Gwin, Mt. Juliet, for defendant/appellee Barbara Parrish.

TOMLIN, Presiding Judge (Western Section).

Plaintiffs, A. Cushman Atkins and wife, Beresha Atkins, (hereafter "Plaintiffs" or "Mr. Atkins" or "Mrs. Atkins") sued defendants, E.F. Kirkpatrick, his wife Janice Kirkpatrick, and Barbara Parrish, their realtor, (hereafter "Defendants," "Mr. Kirkpatrick," Mrs. Kirkpatrick," or "Parrish," respectively), in the Chancery Court for Wilson County. Plaintiffs sought to rescind their purchase of a residential building lot, or in the alternative, damages. Plaintiffs sought relief on four alleged causes of action: fraudulent and negligent misrepresentation against the Kirkpatricks; negligent misrepresentation against the agent, Parrish; Parrish; mutual mistake; and failure of consideration. At the close of Plaintiffs' proof Chancellor Edward M. Turner granted Defendants' motion to dismiss all claims except that of mutual mistake, pursuant to Rule 41.02, T.R.C.P. Defendants rested the case without putting on any proof. The court found there had been a mutual mistake between the parties, but that the Plaintiffs had by virtue of the contract assumed the risk of loss.

On appeal Plaintiffs have raised four issues, although they can be stated grammatically as two: (1) whether the Chancellor erred in granting Defendants' motion to dismiss Plaintiffs' allegation of fraudulent and negligent misrepresentation by the Defendants Kirkpatrick, pursuant to Rule 41.02 T.R.C.P., negligent misrepresentation by the Defendants Kirkpatrick, negligent misrepresentation by the Kirkpatricks' agent Parrish, and failure of consideration; (2) whether the Chancellor erred in failing to rescind the contract upon the ground of mutual mistake between the parties. We resolve these issues in favor of the Defendants and affirm.

Before continuing with the opinion relative to the issues involved, this Court is compelled to address an ancillary issue presented by the Defendants. In their "Declaration of Record," which this Court perceives to mean "designation of the record," pursuant to Rule 24(g), T.R.A.P., Plaintiffs stated, "Plaintiffs-appellants sought the inclusion of all depositions and pre-trial briefs as provided by the above rule."

The clerk of the trial court thereupon included the pre-trial memorandum briefs filed by the parties, along with discovery depositions of the three named defendants. None of the three defendants testified at trial. Furthermore, their depositions were neither made trial exhibits nor read into the record by counsel for Plaintiffs.

In accordance with T.R.A.P., counsel for Defendants made a motion to delete the depositions from the record on appeal. Plaintiffs opposed the motion. A hearing was held before a newly-elected Chancellor who replaced Chancellor Turner. He held that inasmuch as his predecessor stated that he had "considered" the depositions, they should be included in the record to convey a fair and accurate record on appeal. Plaintiffs' contend in their reply brief that the phrase "Correction or Modification of the Record," to the effect that "the determination of the trial court is conclusive, absent extraordinary circumstances," found in Rule 24(e), T.R.A.P., precludes Defendants from again raising the issue before this Court. We respectfully disagree.

While we readily acknowledge that the issue of omissions from or improper inclusions in the record should be first raised in the trial court, in the event the trial court errs in its ruling, this Court has inherent power to correct that ruling. The Advisory Commission's comment to subdivision (e) of Rule 24 T.R.A.P. states in part that "omissions, improper conclusions and misstatements may be remedied at any time, either pursuant to stipulation of the parties or on the motion of a party or the motion of the trial or appellate court...."

As for trial briefs, there was no justification for either requesting or including these items in the record. This Court in Aclin v. Speight, 611 S.W.2d 54 (Tenn.App.1981) stated unequivocally that trial briefs and memoranda of authority of counsel have no place in the appellate record. In addition, the "general note" under the Advisory Commission's comments states: "Trial briefs are superfluous in view of appellate briefs, and they should not be sent to the appellate court absent unusual circumstances."

Without quoting the exact language or giving the circumstances under which the statement was made, Plaintiffs stated in their brief that "the Chancellor specifically indicated that he had read and considered all depositions submitted in the case." In point of fact, the singular comment about the depositions made by Chancellor Turner took place at the very beginning of the trial, when, addressing Plaintiffs' counsel, he stated:

All right, Ms. Dugger, any opening statements you would like to make. I did take the file, the exhibits, the depositions, and briefs last evening and read them, so I have some familiarity, but any statements you wish to make will be fine.

In considering a motion at the close of Plaintiffs' proof under Rule 41.02(2) T.R.C.P., the trial judge is called upon to impartially weigh and evaluate the evidence presented to him. In point of fact, these depositions were neither made exhibits nor introduced into evidence. Because the issues before this Court relate solely to questions concerning the adequacy or preponderance of the evidence presented to the Chancellor below when he granted Defendants' motion for dismissal, the depositions cannot be considered on appeal.

The depositions were filed with the Clerk and Master pursuant to local Rule 15, which reads in part:

Rule 15. Pretrial Procedure in Civil Cases

In all civil actions set for trial on the merits, at least 72 hours prior thereto:

....

(c) Depositions to be used as evidence (other than for impeachment) shall be filed with the clerk.

Local Rule 16.01 also provides that "depositions submitted to the Court as evidence which are not read shall be made trial exhibits."

Notwithstanding the comment made by the Chancellor prior to opening statements, it is clear that these depositions in no way were considered by the previous Chancellor as evidence. In making his rulings from the bench, the Chancellor never alluded to these depositions. They should not be in this record.

A reading of the record presents the following facts: Plaintiffs were engaged in a search for a residential lot on which to build a home for themselves. While driving around the Mt. Juliet area, they saw the lot that later became the subject of this litigation. It was located next door to Defendants' house in a residential subdivision. Plaintiffs contacted Ms. Parrish, a local real estate agent employed by the realty company that had the lot listed for sale. The Plaintiffs met Ms. Parrish at the lot. Mr. Atkins testified that the lot was below road level and had a culvert that directed run-off water onto the lot. He also observed a drainage ditch near the back of the lot.

At this particular meeting Ms. Parrish advised the Plaintiffs that the ditch was to take care of any surface water run-off problems, and that up to that time it had functioned satisfactorily. She also advised Plaintiffs that the lot had been approved for building purposes by the local health department. She suggested they call the health department if they had any questions. Mr. Atkins testified that when the subject was introduced, he advised Ms. Parrish that he would have his brother, who was an environmentalist with the state of Tennessee, come out and render an opinion regarding the lot. Ms. Parrish and the Plaintiffs did not meet again until the closing.

It is uncontradicted that neither plaintiff met with Mr. or Mrs. Kirkpatrick at any time regarding the lot, nor did either of them have any conversations with the Kirkpatricks until the day of closing. At the sales closing a conversation between Mrs. Atkins and Mr. and Mrs. Kirkpatrick did not regard the lot itself.

Before contracting to buy the lot, Mr. Atkins telephoned the Wilson County Health Department and inquired about the Kirkpatrick lot. An employee at the health department advised him that a percolation test conducted in 1973 was on file, and unless the lot had been cut or filled, it was an approved building lot. Mr. Atkins conceded that he made no attempt to ascertain whether or not the lot had been cut or filled since 1973, nor did he ask Ms. Parrish or Mr. and Mrs. Kirkpatrick about the possibility of any fill.

After Plaintiffs met with Ms. Parrish and before they signed the contract with the Kirkpatricks, Mr. Atkins visited the lot with his brother, James "Hugh" Atkins, the environmentalist. The brother viewed the lot from the road but never walked on it. He testified that his work involved the checking of lots, inspecting new construction, and evaluating subdivision plats. He further testified that he was familiar with the auger method utilized to test soil conditions, and that even though he did not conduct any test on the lot regarding soil conditions, he advised his brother to contact the local health department regarding such tests.

In August, 1987, the parties entered into a contract to purchase the lot for the sum of $12,000. The printed contract signed by the parties provided that the seller made no warranties and Mr. and Mrs. Atkins, as purchasers, took the premises in an "as is" condition. The paragraph read as...