Shrout v. Hall Constr., E2010-00862-COA-R3-CV
| Decision Date | 14 March 2011 |
| Docket Number | No. E2010-00862-COA-R3-CV,E2010-00862-COA-R3-CV |
| Parties | ROBERT SHROUT, et al., v. HALL CONSTRUCTION, et al. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Claiborne County
No. 2009-CV-265 Hon. John McAfee, Judge
This case arose over the construction of a home for plaintiffs. Plaintiffs sued the construction company and a bank and several individuals. The Trial Court resolved the issues as to defendants, except Mark Rodriguez, prior to trial. The plaintiffs' case against Rodriguez was tried by the Trial Court who directed a verdict at the end of plaintiffs' proof. Plaintiffs appealed to this Court. Plaintiffs insisted that material evidence established a violation of the Consumer Protection Act by defendant, and the directed verdict should be reversed. Upon review of the evidentiary record, we conclude that the Trial Judge properly directed a verdict in favor of the defendant, and we affirm the Trial Court's Judgment.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
Van R. Irion, Knoxville, Tennessee, for the appellants, Robert Shrout and Joyce Shrout.
Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellee, Mark Rodriguez.
Plaintiffs filed a Complaint against Hall Construction, Sam Hall, Mark Rodriguez, Ed Miller, Betty Beeler, and Home Federal Bank, alleging their home was shoddily constructed. They asserted they had contracted with Hall Construction to build the home, and Sam Hall was the owner of Hall Construction, and Mark Rodriguez was the General Manager, and EdMiller was the Regional Superintendent. They obtained their construction loan through Home Federal Bank, and Betty Beeler was the office manager of that bank.
Plaintiffs alleged that they opened a construction account at Home Federal Bank and deposited $95,000, and obtained a loan from Home Federal for an additional $75,000. They alleged that disbursements were not to be made to the construction company until a progress inspection was performed by the bank.
Plaintiffs alleged that since they lived in Ohio, the bank would call and report to them that the house had been inspected and that a distribution should be made. At some point, plaintiffs alleged they became aware that the work was not being completed as reported or was not being done properly, and they relayed their concerns to Beeler. Further, that Home Federal made distributions to Hall without their consent, and that they paid Hall directly for work that was never done. Plaintiffs then hired Ronald Corum, an engineer, to inspect the home, and he found numerous construction defects in the home and incomplete work, and plaintiffs concluded that Hall Construction and its principals were guilty of breach of contract and breach of warranty for failing to properly construct plaintiffs' home. Further, there were violations of the Tennessee Consumer Protection Act (TCPA). Also, the defendants were guilty of fraud/intentional misrepresentation and that Home Federal had breached its contract with plaintiffs and violated the covenant of good faith and fair dealing.
Motions to Dismiss and Motions for Summary Judgment were subsequently filed. The Court entered a Default Judgment against Defendants Hall Construction and Sam Hall, and plaintiffs then voluntarily nonsuited their claims against Home Federal and Beeler. The Court held a hearing, and entered judgment against Hall and Hall Construction for $218,184, and plaintiffs then filed a voluntary nonsuit as to defendant Miller.
The Court overruled Rodriguez's Motion for Summary Judgment and the case went to trial against Rodriguez. Several witnesses testified, including Rodriguez, and at the close of plaintiffs' proof, Rodriguez moved for a directed verdict, arguing there was no evidence that Rodriguez made any misrepresentations or engaged in any acts in violation of the TCPA. Plaintiffs' counsel responded that plaintiffs were no longer pursuing a breach of contract or breach of warranty claim against Rodriguez, but that they had proven violation of the TCPA and negligent misrepresentation.
Following arguments by the parties' counsel, the Court granted the directed verdict. The Court stated that, while plaintiffs were relying on the lien document that Rodriguez signed as "General Contractor" as a misrepresentation, there was no evidence that they relied on the document, since the construction contract was signed prior to that representation, and that plaintiffs contracted with Hall Construction, not Rodriguez, and executed theconstruction documents with Hall Construction. The Court observed that defendant did make requests for draws on behalf of Hall, but whether the money was to be released was made by another individual. Further, the Court observed that plaintiffs failed to prove a violation of the TCPA and offered no evidence that Rodriguez engaged in any unfair or deceptive acts, and there was no admissible proof of fraud or intentional misrepresentation.
On appeal, the sole remaining issue is whether the Trial Court erred in granting Rodriguez's motion for directed verdict?
On appeal, plaintiffs also initially raised the issue of whether the Trial Court should have granted their motion for non-suit, but subsequently filed a notice with this Court that they were waiving that issue.
As this Court has previously explained:
On considering a motion for directed verdict, the court is required to take the strongest legitimate view of the evidence in favor of the plaintiff, including all reasonable inferences in the plaintiff's favor, and disregarding any evidence to the contrary. A verdict may be directed only if there is no material evidence in the record which would support the verdict for the plaintiff under any of the theories which plaintiff had advanced.
Walker v. Associates Commercial Corp., 673 S.W.2d 517 (Tenn. Ct. App. 1983). The case does not have to be submitted to the jury where there is a mere glimmer of evidence-the evidence must be of a substantial and material nature. Sadek v. Nashville Recycling Co., 751 S.W.2d 428 (Tenn. Ct. App. 1988).
Plaintiffs insist they proved a violation of the Consumer Protection Act, because Rodriguez...
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