JOSHHOLLAND, et al.
EDWARD M. FORESTER, et al.
21, 2017 Session
from the Circuit Court for Hamilton County No. 12-C-1373 L.
Marie Williams, Judge
case involves an alleged intentional or negligent
misrepresentation made in connection with the sale of a
residence. Shortly after purchasing their home from sellers
Edward M. Forester and Alisa S. Forester, buyers Josh Holland
and Angie Holland discovered that the subfloor of the house
was saturated and ruined by pet urine. The buyers sued the
sellers in general sessions court. That court found that the
sellers intentionally misrepresented the condition of the
subfloor on the property disclosure form. The sellers
appealed to the trial court. The buyers alleged that the
sellers violated the Tennessee Residential Property
Disclosure Act (TRPDA), Tenn. Code Ann. § 66-5-201,
et seq. (2015). They sought damages for intentional
or negligent misrepresentation; promissory fraud; fraudulent
inducement to contract; and breach of the implied covenant of
good faith and fair dealing. Mr. Forester passed away prior to
the second trial. The buyers continued this litigation but
only against Ms. Forester in her individual capacity. The
trial court held that the buyers failed to prove that Ms.
Forester had knowledge of the alleged defect in the subfloor.
Specifically crediting her trial testimony, the court held
that Ms. Forester did not violate the TRPDA or make an
intentional or negligent misrepresentation. The buyers
appeal, asserting that the trial court erred in determining
that Ms. Forester did not know about the condition of the
subfloor and in admitting Ms. Forester's testimony
regarding Mr. Forester's mental capacity around the time
of the general sessions court trial. We affirm the judgment
of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
R. Anderson and Joseph W. Dickson, Chattanooga, Tennessee,
for the appellants, Josh Holland and Angie Holland.
C. Cavett, Jr., Chattanooga, Tennessee, for the appellee,
Alisa S. Forester.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and John W.
McClarty, J., joined.
CHARLES D. SUSANO, JR., JUDGE
sellers placed their property on the market in November of
2011. They separated as a couple in January of 2012 and later
divorced. Ms. Forester moved out and did not reside in the
home thereafter. The buyers visited and looked at the house
twice before deciding to purchase it. The husband and wife
buyers each testified that the house smelled strongly of
cigarette smoke the first time they toured the home. After
receiving feedback from their realtor regarding the smell,
the sellers took the house off the market, cleaned it
thoroughly, and used air freshener throughout the home before
placing it back for sale. The buyers testified that on their
second visit, the house smelled strongly of air freshener and
deodorizer, with some lingering smoke smell. The buyers did
not observe any pet odor in the home prior to closing. They
planned to remove the smoke smell after closing by painting
the walls and replacing the carpet with a free floating
hardwood floor, which could be installed over a particle
parties settled on a purchase price of $179, 900. As part of
the closing process, the sellers executed a Tennessee
Residential Property Condition Disclosure form on February
22, 2012, pursuant to the TRPDA, Tenn. Code Ann. §
66-5-202. A place on the disclosure form asked
"Are you (seller) aware of any defects/malfunctions in
any of the following?" One item under that question was
"floors, " with the option of marking "yes,
" "no, " or "unknown." The sellers
marked "no." The buyers signed the disclosure
statement on March 10, 2012.
March 19, 2012, Jim Boston, a licensed home inspector,
conducted a professional property inspection of the home.
Boston noted the condition of the floors in the interior
family rooms and bedrooms to be satisfactory. He did note
that the entry door to the right front bedroom was
"damaged by a pet" and needed replacement. He also
observed minor signs of moisture seepage along one of the
basement walls, but no signs of moisture or other pet damage
to the main floors of the house.
closing occurred on April 20, 2012. The night before closing,
the buyers did a final walkthrough and observed the condition
of the house. The buyers did not reenter the house until
April 22, 2012, three days after their final visit before
closing. In early May, the buyers began to paint and repair
the house, including removing the carpets on the main level,
with assistance from Mr. Holland's father and both of Ms.
Holland's parents. The buyers discovered that the
particle board subflooring had been severely saturated,
stained, and smelled strongly of, presumably, pet urine.
the buyers saw the condition of the subfloor, they called
inspector Boston and asked him to return to the house for a
second inspection and assessment of the subfloor.
Boston's second inspection report, dated May 5, 2012,
[w]hen the carpeting and padding were removed you found
extensive damage to the wooden subfloor. It appears that this
was caused by urine from the sellers' pets. It is obvious
that this had to occur over a period of several years. The
subflooring was still wet today from the urine. Since the
subfloor is particle board it is also deteriorating as the
wooden fibers are separating. None of the subfloor appears to
be salvageable. All of the subflooring and some of the
baseboards will need to be removed and replaced. The floor
joists and framing underneath should also be inspected and
repaired or replaced as needed. Any damaged or molded
insulation underneath the flooring should also be removed and
buyers and their parents removed and replaced the
subflooring, doing the work themselves. Mr. Holland estimated
that the project required about ninety hours of individual
labor. The buyers incurred roughly $1, 830 in cost of
materials and other expenses.
buyers sued the sellers in general sessions court, alleging
that they knew of and intentionally misrepresented the
condition of the subfloor on the disclosure form. Ms.
Forester did not testify at the general sessions court trial.
Mr. Forester did testify. He said that they owned dogs and
cats that were inside animals while living in the house. He
said the pets had accidents in the home. Mr. Forester
testified further that the sellers had the carpet replaced
about seven or eight years before his testimony in 2012. He
testified that the subflooring was stained when he had the
carpet replaced, but that there were never any structural
weaknesses of any kind. He did not recall whether the
subfloor was wet at the time. He stated that the
"gentleman who laid the carpet down" did not say
anything about the subfloor being so damaged that he should
not put carpet down on it without repairing it. Mr. Forester
testified that he did not indicate any defects in the floors
on the property disclosure form because
[w]ell, I lived there and walked on that carpet and floor for
20-something years or almost 20 years. It never sagged, never
bounced, never bucked up. Wasn't damaged as far as
I'm concerned. It was livable.
Forester did not believe that the particle board staining was
a defect. Regarding the smell, Mr. Forester testified that
there was no odor of pet urine and "that smoke odor was
the big concern."
general sessions court held that the sellers made a willful
misrepresentation. The court awarded damages of $23, 487.73
to the buyers. The general sessions court found that Mr.
Forester knew that there were stains when he had the carpet
replaced and knew that there were problems with their pets
having accidents in the house before it was sold to the
sellers appealed to the trial court. Mr. Forester passed away
before the second trial took place. The buyers proceeded
against Ms. Forester individually. The parties stipulated
that the transcript from the general sessions court trial was
admissible and that "there is not an issue as to the
credibility of witnesses from that trial as represented here
by that transcript." The entire trial transcript and the
exhibits admitted in general sessions court were entered into
evidence in accordance with this stipulation.
only two witnesses who testified at the trial court were
Donald Tindell, a real estate appraiser, and Ms. Forester.
She admitted that she and Mr. Forester had owned pets while
they lived in the house. She stated that she had a small,
eleven-pound inside dog that was house-trained for the
majority of the time that it was in the home. She believed
the buyers mentioned a smoke and pet smell during their first
tour of the home to her real estate agent before she and Mr.
Forester cleaned the home and placed it back on the market.
Ms. Forester stated that the carpet in some rooms had been
replaced probably three years before they sold the house.
When asked whether it had been replaced seven or eight years
before the sale, she stated that the carpet was replaced
"probably five" years ago. She testified that she
was not present when the carpet was replaced, that she had
not seen the subfloors at that time, and that the first time
she was made aware of any issue with an alleged defect with
the flooring was "after we sold the house and all this
trial court held that there was no violation of the TRPDA, no
negligent or intentional misrepresentation, and "no
knowledge held by Mrs. Forester as a sufficient basis for any
of the claims made in this lawsuit." The court found
that "Mrs. Forester made an excellent witness." The
court also found
credible Mrs. Forester's testimony that her husband's
brain cancer was diagnosed within a month of his testifying
in General Sessions Court and that she had observed problems
with his mental functioning. He had to leave work because he
could not recall how to do his job as a Chattanooga police
court noted that "[t]he plaintiffs must prove the fraud
allegations by clear and convincing evidence and must prove
the misrepresentation and statutory violation allegations by
a preponderance of the evidence." The court found that
the proof Mrs. Forester had actual knowledge of a defect
arising out of pet urine in the house or that she should have
known of that defect [was] based only on circumstantial
evidence. That circumstantial evidence is the condition of
the floor which was detected when the carpet was removed. The
Court finds Mrs. Forester's direct testimony more
credible than the circumstantial evidence to the contrary.
There is no direct evidence whatsoever that Mrs. Forester
knew of any condition of the floor at issue which could be
considered a defect. The Court finds the smoke odor which
camouflaged the pet smell condition about which the
plaintiffs now complain would have camouflaged the condition
while the Foresters lived in the house also.
result, the trial court dismissed the buyers' claims.