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Turner v. Kendrick

Court of Appeals of Tennessee, Nashville

April 21, 2017

DAVID TURNER, ET AL
v.
KARL KENDRICK, ET AL.
v.
DANNY ANDERSON, ET AL.

          Session March 22, 2017

         Appeal from the Chancery Court for Williamson County No. 42527 James G. Martin, III, Judge

         This appeal arises from the dismissal of a third-party complaint, which was filed two years after the third-party plaintiffs filed its answer to the original complaint. The trial court found that the third-party plaintiffs failed to seek leave of the court to join the third-party defendants as required by Tennessee Rule of Civil Procedure 14.01. The trial court also determined that the third-party plaintiffs failed to state a claim which would support the trial court granting leave to file a third-party complaint, and, accordingly, dismissed the Appellants' third-party complaint. The third-party plaintiffs appealed. Discerning no error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded.

          Joseph M. Barrett and Jordan B. Osborn, Dickson, Tennessee, for the appellants, Karl Kendrick and Stacey Kendrick.

          David A. Bates, Spring Hill, Tennessee, for the appellee, Cindy Garvey.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J. joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         This appeal arises from a contract to purchase real estate. On September 30, 2012, David Turner and Tracy Maddox (together "Sellers") entered into a purchase and sale agreement to purchase improved property from Karl and Stacey Kendrick ("Buyers, " "Third-Party Plaintiffs, " "Appellants"). On November 17, 2012, the parties entered into a separate purchase and sale agreement to purchase the adjoining vacant lot. Pursuant to the November 2012 agreement, Appellants were to purchase the adjoining lot for $75, 000 within five days of the sale of their home. On December 12, 2012, the buyers purchased the improved property. On June 21, 2013, the Appellants sold their home but did not proceed to closing on the adjoining lot. On September 30, 2013, the Sellers filed a complaint against Buyers alleging breach of the November 2012 agreement. The Sellers sought specific performance and compensatory damages. On December 11, 2013, the Kendricks filed an answer and counter-complaint alleging breach of contract, misrepresentation, and violation of the Tennessee Consumer Protection Act on the part of the Sellers.

         Two years later, on November 24, 2015, the Kendricks filed a third-party complaint against the third-party defendants Cindy Garvey (d/b/a United Country Leipers Fork), Danny Anderson, and Bob Parks Realty. Ms. Garvey was the agent representing the Kendricks during the negotiations for the purchase of the vacant lot. Appellants allege that Ms. Garvey breached the contract and violated the Tennessee Consumer Protection Act, as well as the Tennessee Real Estate Broker License Act by failing to advise them of the documents being signed throughout the negotiations and failing to disclose all facts of which she had knowledge with respect to the residential lot. It is undisputed that the Kendricks did not file a motion seeking leave of the court to file the third-party complaint. On January 11, 2016, Ms. Garvey filed a motion to dismiss the third-party complaint. On February 5, 2016, Mr. Anderson and Bob Parks Realty filed a joint motion to dismiss. The trial court heard the motions on February 19, 2016 and entered an order granting the motions to dismiss on March 15, 2016. The Kendricks appeal. Upon stipulation of the Kendricks, Mr. Anderson and Bob Parks Realty were dismissed from this appeal by order entered, by this Court, on November 21, 2016, thus leaving Cindy Garvey, d/b/a United Country Leipers Fork, as the sole Appellee.

         II. Issues

         We restate Appellants' issues as follows:

1. Whether the trial court erred in dismissing the ...

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