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Singer v. Highway 46 Properties, LLC

Court of Appeals of Tennessee, Nashville

September 23, 2014

DONNA L. SINGER
v.
HIGHWAY 46 PROPERTIES, LLC
v.
DICKSON TITLE, LLC, ET AL.

Session Date July 18, 2014.

Appeal from the Chancery Court for Dickson County No. 2012CV398 George C. Sexton, Chancellor

Phillip Byron Jones, Nashville, Tennessee, for the appellant, Highway 46 Properties, LLC.

R. Eric Thornton, Dickson, Tennessee, for the appellee, Dickson Title, LLC.

Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

OPINION

RICHARD H. DINKINS, JUDGE

Donna Singer ("Ms. Singer") was awarded $17, 900.00 on October 4, 2004 as a result of an arbitration of her claim against the Cunningham Company, d/b/a/ Dickson Homes, for breach of contract arising from the construction of her new home. The award was confirmed and made the judgment of the Dickson County Chancery Court on March 15, 2005, and was recorded in the office of the Dickson County Register of Deeds on April 28, 2005.

The Cunningham Company filed a petition for bankruptcy on April 18, 2005; the petition was dismissed on November 23, 2005. On December 14, 2005 the Cunningham Company conveyed two parcels of property in Dickson County to W. H. Summers ("Summers") by warranty deed. Chicago Title Insurance Company issued an owner's title insurance policy dated December 14, 2005, listing W. H. Summers as the insured and insuring that fee simple title was vested in him; the policy did not contain an exception for Ms. Singer's judgment against the Cunningham Company of record in the Register's Office. The policy was executed "Dickson Title, LLC, Authorized Agent for Chicago Title" by "Lawrence E. Ramsey, Authorized Signatory." On February 15, 2006, Summers conveyed the property by quitclaim deed to Highway 46 Properties, LLC ("Highway 46"), which had been formed on February 14, 2006.

On September 28, 2012, Ms. Singer filed a petition to enforce the judgment lien and direct the sale of the property; Highway 46 was named as the respondent. Highway 46 duly answered and filed a third-party complaint, naming Dickson Title, LLC ("Dickson") and Fidelity National Title Group, Inc. d/b/a or formerly d/b/a Chicago Title Insurance Company ("Chicago") as third-party defendants. Highway 46 asserted causes of action against Dickson for negligence and breach of "express or implied contactual obligations" relative to the pre-closing title search. The complaint asserted causes of action against Chicago for breach of contract, unfair and deceptive practices under the Tennessee Consumer Protection Act, Tenn. Code Ann.§ 47-18-101, et seq., and for acting in bad faith in not honoring a claim under the policy in violation of Tenn. Code Ann. § 56-7-105.

In due course, Chicago filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss on the ground that Highway 46 was not an insured under the title policy. Dickson likewise moved to dismiss the claims against it on the grounds that the negligence and breach of contract claims were barred by the statute of limitations, that Dickson was not in privity with Highway 46 and owed it no duty of care, and that Dickson, as agent for Chicago, was not liable on the policy. Highway 46 responded to both motions, filing a memorandum of law, an affidavit of Summers, and the articles of organization and annual reports of Highway 46, certified by the Tennessee Secretary of State.

Ms. Singer filed a motion for summary judgment accompanied by a statement of undisputed material facts and a memorandum of law. Highway 46 filed a response to the motion and statement of undisputed facts; Dickson also filed a response to the statement of undisputed material facts.

On November 8, 2013, the court entered an order granting both motions to dismiss and on December 13 entered an order granting Ms. Singer's motion for summary judgment. Highway 46 timely filed a notice appealing the dismissal of its complaint. While the appeal was pending, Highway 46 settled its claims with Chicago and, by order entered April 25, 2014, Chicago was dismissed as a party to this appeal.[1]

I. Standard of Review

The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether the complaint states a claim upon which relief can be granted; such a motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff's proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). Thus, a complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim that would warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn. 1978). Making such a determination is a question of law, which we ...


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