Gary Weaver v. Thomas R. McCarter

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 18, 2006 Session

GARY WEAVER, ET AL. v. THOMAS R. MCCARTER, ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. 98-0425-3 D.J. Alissandratos, Chancellor

No. W2004-02803-COA-R3-CV - Filed June 6, 2006

Plaintiffs Gary and Gail Weaver filed suit against Coldwell Banker Hoffman-Burke, Inc. Realtors

(“Defendant CBHB”), Jim Perdue (“Defendant Perdue”), Thomas McCarter (“Defendant

McCarter”), and Chip Hunter (“Defendant Hunter”) seeking damages resulting from a failed real

estate sale. The Plaintiffs specifically sought damages from Defendants CBHB and Perdue for

negligence per se, negligent misrepresentation, and fraud. The trial court granted summary judgment

in favor of the Plaintiffs on the issue of liability for all Defendants, but reserved ruling on damages

for trial. At trial, the trial court awarded the Plaintiffs damages in the amount of $134,225.06 plus

attorney’s fees and held all Defendants jointly and severally liable for the entire award. Both the

Plaintiffs and Defendants CBHB and Perdue assert various issues on appeal. For the reasons stated

below, we affirm in part, reverse in part, and remand this case for further proceedings.

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

Reversed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,

and ALAN E. HIGHERS, J., joined.

Charles F. Morrow, Elizabeth E. Chance and Michael D. Fitzgerald, Memphis, Tennessee, for the

appellant, Coldwell Banker Hoffman-Burke, Inc., Realtors.

Robert L. Moore and Dawn Davis Carson, Memphis, Tennessee, for the appellant, Jim Perdue.

Henry C. Shelton, III, Memphis, Tennessee, for the appellees, Gary Weaver and Gail Weaver.

OPINION

Factual Background and Procedural History

This suit arises from a contract to sell Gary and Gail Weaver’s (“the Plaintiffs”) house

(“the Hacks Cross House”) located on Hacks Cross Road in Memphis, Tennessee. On November

1, 1994, Thomas McCarter (“Defendant McCarter”) approached the Plaintiffs with an offer to

purchase the Hacks Cross House for $680,000 in cash. The Plaintiffs agreed and subsequently

entered into a verbal contract with Defendant McCarter for a cash sale. However, Defendant

McCarter never consummated the sale and, thus, the transaction never closed.

In February 1997, the Plaintiffs purchased a second home located on Langston Cove (“the

Langston Cove House”) and soon after listed the Hacks Cross House with Jim Perdue

(“Defendant Perdue”) at Coldwell Banker Hoffman-Burke, Inc. Realtors (“Defendant CBHB”).

On August 27, 1997, Defendant Perdue brought the Plaintiffs a written offer from Janet Hunter

to purchase the Hacks Cross House for $575,000. The Plaintiffs eventually accepted a counter-

offer of $595,000, with $10,000 in escrow, and signed a contract of sale (hereinafter referred to

as “the sale contract”) with Janet Hunter. Closing was set for September 30, 1997. However, the

$10,000 escrow check bounced on September 17, 1997, and Defendants CBHB received notice

of this on September 30, 1997. Furthermore, the sale contract was not signed by Janet Hunter,

but rather Janet Hunter’s name was forged by Chip Hunter (“Defendant Hunter”), Janet Hunter’s

husband, without Janet Hunter’s knowledge or permission. Defendant Hunter signed Janet

Hunter’s name to the sale contract at the request of Defendant McCarter and while in the

presence of Defendant Perdue. The Plaintiffs did not learn of the bounced escrow check or the

forged sale contract until the closing date, when the Plaintiffs’ attorney checked on the escrow

funds and Defendant Perdue informed the Plaintiffs’ closing attorney of the forgery. As a result,

the closing did not occur on September 30, 1997.

Subsequently, on October 2, 1997, Defendant McCarter, in a memorandum to Defendant

Perdue, affirmed that he was the true party who had made the offer on August 29, 1997, to

purchase the Hacks Cross House for his daughter, Janet Hunter. While Defendant McCarter

indicated a desire to honor the sale contract, he informed Defendant Perdue that his funding for

the purchase would not be available until October 8, 1997. Although reserving their rights under

the original sale contract, the Plaintiffs informed Defendant McCarter that they were willing to

close the transaction if his funding came through by October 8, 1997. Despite this, the closing

did not take place on October 8, due to a continued lack of funding. At that time, Defendant

McCarter promised to fund the transaction on October 15, 1997. However, on that date, he

delivered a $10,000 check to Defendant CBHB and stated that he no longer wanted to purchase

the Hacks Cross House. The Plaintiffs subsequently demanded that Defendant Perdue pay them

Defendant McCarter’s $10,000 in earnest money, cancelled their listing agreement with

Defendant CBHB, and placed the Hacks Cross House back on the market. However, the Hacks

Cross House did not sell and the Plaintiffs eventually sold the Langston Cove House and moved

back to the Hacks Cross House.

On May 11, 1998, the Plaintiffs filed suit against Defendants McCarter, CBHB, Perdue,

and Hunter, seeking damages for negligence per se, negligent misrepresentation, breach of

contract, and fraud. Specifically, the Plaintiffs asserted that Defendants Perdue and CBHB were

negligent per se for violating section 62-13-403 of the Tennessee Real Estate Broker License Act

of 1973. The Plaintiffs further asserted that Defendant Perdue was also negligent per se because

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he violated section 62-13-404 of the Brokers Act, which provides for duties of reasonable care

and loyalty between real estate brokers and their clients; and that Defendant Perdue was further

guilty of negligent misrepresentation for failing to exercise reasonable care in communicating

information to the Plaintiffs. The Plaintiffs next asserted a breach of contract claim against

Defendant McCarter arguing that, although Defendant McCarter did not actually sign the

contract, he had previously entered into an oral agreement, through Defendant Perdue, with the

Plaintiffs to purchase their house, but failed to follow through with the purchase. Finally, the

Plaintiffs asserted a fraud complaint against Defendants McCarter, Hunter, and Perdue, arguing

that all three parties engaged in dishonest practices with a deceptive intent in order to induce the

Plaintiffs to enter into an illusory contract to sell their house, which the Plaintiffs subsequently

relied upon to their detriment. As remedies, the Plaintiffs sought either specific performance by

Defendant McCarter or a judgment for $200,000 in compensatory damages against all defendants

jointly and severally, along with punitive damages.

In response to the Plaintiffs’ claims, Defendants CBHB and Perdue filed an answer

arguing that Plaintiffs failed to assert a claim upon which relief could be granted. Defendant

CBHB also asserted a counter-claim against the Plaintiffs alleging that they were entitled to split

the $10,000 in earnest money with the Plaintiffs. In turn, Defendant Hunter denied forging Janet

Hunter’s signature and asserted the statute of frauds as an affirmative defense. Defendant

McCarter denied being the contractual purchaser of the house and further asserted the statute of

frauds as an affirmative defense. Defendant McCarter also asserted a counter-claim against

Defendant Perdue, Defendant CBHB, and the Plaintiffs seeking the return of the $10,000 placed

in escrow arguing that Defendant McCarter entered into no enforceable contract of sale and, thus,

no legal basis existed for the continued retention of such funds. Defendants CBHB and Perdue

and the Plaintiffs responded to Defendant McCarter’s counter-complaint and asserted that an

enforceable contract of sale did exist.

On July 13, 2000, the Plaintiffs filed a Motion for Summary Judgment against all

Defendants. Defendant McCarter subsequently filed a motion seeking a directed verdict in

relation to the return of the $10,000 escrow money.1 On January 22, 2001, the trial court entered

an order granting summary judgment in favor of the Plaintiffs against Defendants McCarter,

Hunter, Perdue, and CBHB. The court also denied Defendant McCarter’s directed verdict

motion and further ordered that Defendant CBHB tender the $10,000 in earnest money to the

Plaintiff, with said amount being credited against the damage award against Defendant McCarter.

The amounts of compensatory and punitive damages were reserved for further hearing; however,

the trial court did state that

while all judgments rendered herein and subsequently by the Court shall be joint

and several as against all Defendants, that among the Defendants the fault shall be

apportioned [forty-five] percent (45%) to [Defendant] McCarter, ten percent

1

Pursuant to Rule 50.01 of the Rules of Civil Procedure, a party may only move for directed verdict “at the close

of the evidence offered by an opposing party or at the close of the case.” Tenn. R. Civ. P. 50.01 (2005).

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(10%) to [Defendant] Hunter, and [forty-five] percent (45%) to Defendants

[Perdue and CBHB].

Nearly two years after the trial court’s grant of summary judgment, Defendant CBHB filed a

motion to reconsider, which the trial court denied.

Prior to the trial on damages, several events occurred which ultimately affected the trial

court’s ability to assess damages. First, on May 5, 2004, Defendant Perdue filed a Plea of

Bankruptcy stating that he had filed bankruptcy and that, pursuant to an Order Modifying

Discharge Injunction issued by the United States Bankruptcy Court for the Western District of

Tennessee, the trial court would only be allowed to proceed to a judgment against Defendant

Perdue for any causes of action except acts of fraud, fraudulent misrepresentation, or other cause

of action which would permit the denial of discharge pursuant to 11 U.S.C. § 727 or render the

judgment nondischargeable pursuant to 11 U.S.C. § 523. The trial court granted this plea. In

addition to Defendant Perdue’s filing of bankruptcy, Defendant McCarter died2 and Defendant

Hunter also filed bankruptcy. As a result, at trial, the Plaintiffs sought to collect damages arising

from Defendants CBHB and Perdue’s negligence per se and negligent misrepresentation, as well

as Defendant McCarter’s breach of contract.3

At the trial on damages, the parties presented testimony of Plaintiff Gary Weaver and

John Jordan, a real estate appraiser who had appraised the Plaintiffs’ property in 1997, near the

time the sale contract was signed. The Plaintiffs asserted that the proof showed that they had

suffered $300,000 in damages as a result of the Defendants conduct. After hearing the proof, the

trial court first held the Plaintiffs would receive no damages in relation to their purchase and

subsequent sale of the Langston Cove House because the purchase of this property occurred prior

to the Plaintiffs’ contract to sell the Hacks Cross House and, thus, damages resulting from the

purchase and sale of the Langston Cove home were not reasonable consequential damages

flowing from the Defendants’ actions in regard to the Hacks Cross House. As a result of this

finding, the trial court focused its award of damages on the following issues: 1) the contract price

2

W e find no indication in the record of a substitution of parties for Defendant McCarter pursuant to Rule 25.01

of the Tennessee Rules of Civil Procedure.

3

In their brief, the Plaintiffs assert that at the trial on damages, they proceeded only against Defendants CBHB

and Perdue “and sought damages only under the T ennessee Real Estate Broker[] Act of 1973 and for negligence.”

However, a review of the trial transcript reveals that the Plaintiffs also sought damages for their breach of contract claim

against Defendant M cCarter, although the Plaintiffs admitted that Defendant McCarter died apparently leaving no estate

to satisfy a judgment and that “no formal Notice [or] substitution” was made pursuant to Rule 25.01.

In relation to damages suffered due to fraud, neither the Plaintiffs’ brief nor the record in this case supports the

conclusion that damages were awarded based upon fraud in this case. At trial, the Plaintiffs’ counsel admitted that no

judgment for fraud was awarded against Defendants CBHB and Perdue. Furthermore, the Plaintiffs indicated that they

were unable to pursue damages against Defendant Hunter due to his filing Chapter 7 bankruptcy. Finally, a review of

the record and transcript in this case fails to show that damages were awarded for any fraud alleged against Defendant

McCarter.

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for the Hacks Cross House minus the sales commission, 2) the duty of the Plaintiffs to mitigate

damages, and 3) additional expenses incurred as a result of the Defendants’ actions. After

hearing the evidence submitted at trial, the trial court entered an Order of Judgment providing as

follows:

Plaintiffs should have a judgment, against Defendants, pursuant to their apportioned

fault, in the amount of $55,600.00 for lost value of real estate; $3,000.00 for 1998

and $3,000.00 for 1999 for necessary maintenance costs, and $20,000.00 for

attorneys fees, with prejudgment interest computed at 10% per year on each amount

from the date incurred, or, in the case of attorneys fees, from the date paid, and

statutory cost of this case. [Defendants] Perdue and [CBHB] have been apportioned

fault in the amount of forty-five percent (45%), and judgment is awarded against

these Defendants specifically in the amount of $60,118.53, and forty-five percent

(45%) of statutory costs.

The Plaintiffs subsequently filed a Motion to Alter or Amend Judgment arguing that the trial

court should apportion fault jointly and severally among the Defendants. The trial court granted

the Plaintiffs’ motion and, on October 4, 2004, entered an Amended Order of Judgment stating

that the Plaintiffs

should have a judgment against Defendants (except Defendant Chip Hunter, whose

bankruptcy injunction precludes judgment, and Defendant[] Perdue, whose judgment

is limited by the Order Modifying Discharge Injunction, entered on May 21, 2003,

in the Bankruptcy Court for the Western District of Tennessee Western Division,

Cause No. 98-21718L)[], jointly and severally, in the amounts of $55,600.00 for lost

value of real estate; $3,000.00 for 1998 and $3,000.00 for 1999 for necessary

maintenance costs, and $20,000.00 for attorneys fees, with prejudgment interest

computed at 10% per year on each judgment from the date incurred, or, in the case

of attorneys fees, from the date paid, for a total judgment of $134,225.06 and the

costs of the cause.

IT IS THEREFORE ORDERED judgment shall be entered in favor of

Plaintiffs Gary and Gail Weaver against Defendants Thomas McCarter,4 Jim Perdue

and Coldwell Banker Hoffman Burke Realtors, jointly and severally, in the amount

of $134,225.06 and the costs of the cause, for which let execution issue if necessary.

Judgment as to Defendant Perdue is limited by the Order Modifying Discharge

Injunction . . . .

Defendants Perdue and CBHB appeal.

4

As previously noted, we find no indication in the record of a substitution of parties for Defendant McCarter

pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure. Despite this, the Defendants nonetheless received

a judgment against Defendant McCarter.

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Issues Presented

The Defendants Perdue and CBHB raise the following issues, as restated, on appeal: 1)

whether material issues of fact exist which preclude the grant of summary judgment in favor of

the Plaintiffs; 2) if summary judgment was appropriate, whether the trial court was correct in its

award of damages; and 3) if the trial court correctly awarded damages, whether the court erred in

holding the Defendants jointly and severally liable. The Plaintiffs raise the additional issue of

whether the trial court erred in failing to award the costs of the Langston Cove House during the

listing of the Hacks Cross House as an element of the damages. For the reasons set forth below,

we affirm in part, reverse in part, and remand this case for further proceedings.

Standard of Review

Liability of the Defendants in this case was decided by summary judgment. Summary

judgment is appropriate only when the moving party can demonstrate that there are no disputed

issues of material fact and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P.

56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Ten. 1993). Specifically, the moving party must

affirmatively negate an essential element of the nonmoving party's claim or conclusively

establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588

(Tenn.1998). When a party makes a properly supported motion for summary judgment, the

burden shifts to the nonmoving party to establish the existence of disputed material facts. Id.

A mere assertion that the nonmoving party has no evidence does not suffice to entitle the

moving party to summary judgment. Id. Rather, in determining whether to award summary

judgment, the trial court must view the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party's favor. Staples v. CBL & Assocs., 15

S.W.3d 83, 89 (Tenn.2000). The court should award summary judgment only when a reasonable

person could reach only one conclusion based on the facts and the inferences drawn from those

facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine

issue of material fact exists. McCarley, 960 S.W.2d at 588. We review an award of summary

judgment de novo, with no presumption of correctness afforded to the trial court. Guy v. Mut. of

Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002).

In relation to the award of damages, our standard of review of a trial court sitting without

a jury is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.

1995). There is a presumption of correctness as to the trial court’s findings of fact, unless the

preponderance of evidence is otherwise. Tenn. R. App. P. 13(d)(2006). However, no

presumption of correctness attaches to a trial court’s conclusions on issues of law. Bowden v.

Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Tenn R. App. P. 13(d) (2006).

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Analysis

Grant of Summary Judgment Against Defendants CBHB and Perdue

In their complaint, the Plaintiffs first asserted that Defendants CBHB and Perdue were

negligent per se because they violated section 62-13-403 of the Tennessee Real Estate Broker

License Act of 1973. Specifically, the Plaintiffs alleged that

[Defendant] Perdue, as individual broker and [Defendant] CBHB as managing

broker, both violated T.C.A. § 62-13-403. . . . Perdue violated his duty of reasonable

care by dishonestly failing to disclose to his clients material and adverse facts of

which he had knowledge, and which, if known by his clients, would have caused his

clients to not enter into the subject contract. Specifically, the [Plaintiffs] would not

have entered into the contract had they known that the Purchaser had no knowledge

of the contract and was not the source of funding for the contract. The [Plaintiffs]

would not have entered into the contract had they known that the signature of the

[Janet Hunter] had been forged. The [Plaintiffs] would not have entered into the

contract had they known the real offeror was [Defendant] McCarter, who failed to

appear three years earlier at a closing on the same piece of real estate. Had the

[Plaintiffs] known that the escrow check provided by Defendant McCarter had

bounced, they would have immediately and justifiably rescinded the contract.

In order to succeed on a claim of negligence per se, a plaintiff must show that the

defendant failed to perform a statutory duty and that injury proximately resulted from such

failure. Alex v. Armstrong, 385 S.W.2d 110, 114 (Tenn. 1964). The plaintiff must further show

that they were “within the protection of the law [or statute] and intended to be [benefitted]

thereby.” Id. As recently held by this Court in Arnold v. Bowman, No. E2004-01151-COA-R3-

CV, 2005 WL 1488679 (Tenn. Ct. App. 2005), perm. app. denied (Tenn. Dec. 5, 2005), “[t]he

Tennessee Real Estate Broker License Act of 1973 was created to ‘protect the public from

irresponsible or unscrupulous persons dealing in real estate.’” Id. at *11 (quoting Business

Brokerage Ctr. v. Dixon, 879 S.W.2d 1, 3 (Tex. 1994)). Thus, as a preliminary matter, we find

that the Plaintiffs, as real estate clients of Defendants CBHB and Perdue, certainly fall within the

protections offered under the Act. As a result, we now address whether the trial court erred in

granting summary judgment against Defendants CBHB and Perdue for negligence per se in

violating section 62-13-403 of the Act.

Section 62-13-403 of the Act provides as follows:

A licensee who provides real estate services in a real estate transaction shall owe

all parties to such transaction the following duties, except as provided otherwise

by § 62-13-405, in addition to other duties specifically set forth in this chapter or

the rules of the commission:

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(1) Diligently exercise reasonable skill and care in providing services to all

parties to the transaction;

(2) Disclose to each party to the transaction any adverse facts of which the

licensee has actual notice or knowledge;

(3) Maintain for each party to a transaction the confidentiality of any

information obtained by a licensee prior to disclosure to all parties of a written

agency or subagency agreement entered into by the licensee to represent either or

both of the parties in the transaction. . . .

(4) Provide services to each party to the transaction with honesty and good

faith;

(5) Disclose to each party to the transaction timely and accurate

information regarding market condition that might affect such transaction only

when such information is available through public records and when such

information is requested by a party.

(6) Timely account for trust fund deposits and all other property received

from any party to the transaction; and

(7)(A) Not engage in self-dealing nor act on behalf of licensee’s

immediate family, or on behalf of any other individual, organization or business

entity in which the licensee has a personal interest without prior disclosure of such

interest and the timely written consent of all parties to the transaction; and

(B) Not recommend to any party to the transaction the use of services of

another individual, organization or business entity in which the licensee has an

interest or from whom the licensee may receive a referral fee or other

compensation for the referral, other than referrals to other licensees to provide real

estate services under the Tennessee Real Estate Broker License Act of 1973,

without timely disclosing to the party who receives the referral, the licensee’s

interest in such referral or the fact that a referral fee may be received.

Tenn. Code Ann. § 62-13-403 (1997).

In their respective briefs, Defendants CBHB and Perdue argue that the trial court erred in

granting summary judgment against them due to the existence of disputed material facts.

Specifically, Defendant CBHB asserts disputed issues of material fact exist as to 1) whether

Defendant Perdue constituted an employee or independent contractor of Defendant CBHB, 2)

whether the fact that Janet Hunter had not signed the contract at issue constituted material

information that Defendants negligently failed to provide to the Plaintiff, and 3) whether

Defendant Perdue negligently or fraudulently misrepresented any material facts to the Plaintiffs.5

Likewise, Defendant Perdue argues that disputed issues of material fact exist as to 1) whether he

knew of the Plaintiffs’ prior dealings with Defendant McCarter, and thus had notice that

Defendant McCarter’s involvement in the transaction would constitute a material fact, 2) whether

5

W e address the negligent misrepresentation and fraud claims asserted against Defendant Perdue separately in

this opinion.

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he acted in good faith in presenting the forged sale contract to the Plaintiffs. We will address

these issues in turn.

In regard to Defendant CBHB’s first assertion regarding Defendant Perdue’s employment

status, we note that in their initial complaint the Plaintiffs asserted that both Defendant Perdue, as

individual broker, and Defendant CBHB, as managing broker, violated the Tennessee Real Estate

Broker License Act of 1973. The Plaintiffs later moved for summary judgment, asserting that an

“agency relationship” existed between Defendants CBHB and Perdue. However, in their

response to this motion, Defendants CBHB and Perdue failed to raise the issue of whether

Defendant Perdue constituted an employee or an independent contractor. Rather, Defendant

CBHB argued that Defendant Perdue was an independent contractor for the first time in its

“Motion to Reconsider,” filed nearly two years after the trial court granted summary judgment in

favor of the Plaintiffs.6 On appeal, Defendant CBHB asserts that the trial court erred in denying

Defendant CBHB’s “Motion to Reconsider” and thus failing to consider whether a disputed issue

of material fact existed as to whether Defendant Perdue was an employee or independent

contractor. We disagree.

The Tennessee Supreme Court recognized in Harris v. Chern, 33 S.W.3d 741 (Tenn.

2000) that

the Tennessee Rules of Civil Procedure do not authorize motions “to reconsider” a

grant of summary judgment. See McCracken v. Brentwood United Methodist

Church, 958 S.W.2d 792, 794 n.3 (Tenn. Ct. App. 1997). Instead, the rules allow for

motions “to alter or amend a judgment,” Tenn. R. Civ. P. 59.04, or motions “to

revise” a non-final partial judgment, see Tenn. R. Civ. P. 54.02.

Harris, 33 S.W.3d at 743. In this case, the trial court granted summary judgment in favor of the

Plaintiffs on the issue of liability, but reserved the issue of damages for trial. Since the trial court

made no determination under Rule 54.02 that the grant of summary judgment should be

construed as final, we perceive Defendant CBHB’s motion to reconsider to instead constitute a

motion to revise under Rule 54.02 of the Tennessee Rules of Civil Procedure, which provides for

motions to revise non-final partial judgments. See Tenn. R. Civ. P. 54.02 (2005); Taylor v. State

of Tenn., No. M2002-02608-COA-R3CV, 2005 WL 628500 (Tenn. Ct. App. Mar. 17, 2005) (no

perm. app. filed).

Having interpreted Defendant CBHB’s motion as a motion to revise under Rule 54.02,

we next address whether the trial court erred in denying Defendant CBHB’s motion and, thus,

failing to consider Defendant CBHB’s argument that Defendant Perdue was an independent

contractor. In Harris, the Tennessee Supreme Court held that

6

The briefs and record in this case indicate that Defendants CBHB and Perdue were represented by the same

counsel at the time the trial court granted summary judgment. However, Defendant CBHB had retained separate counsel

at the time it filed its “M otion to Reconsider.”

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[w]hen additional evidence is submitted in support of a Rule 54.02 motion to revise

a grant of summary judgment, a trial court should consider, when applicable: 1) the

movant’s efforts to obtain evidence to respond to the motion for summary judgment;

2) the importance of the newly submitted evidence to the movant’s case; 3) the

explanation offered by the movant for its failure to offer the newly submitted

evidence in its initial response to the motion for summary judgment; 4) the likelihood

that the nonmoving party will suffer unfair prejudice; and 5) any other relevant

factor.

Harris, 33 S.W.3d at 745. In the case at bar, the record shows that Defendant CBHB never

alleged that information concerning Defendant Perdue’s employment status was unavailable at

the time it responded to the Plaintiffs’ initial summary judgment motion. Furthermore, the

record is devoid of any other explanation on the part of Defendant CBHB as to why this issue

was not raised. In light of these circumstances, we find that the trial court did not err in denying

Defendant CBHB’s motion to revise, and thus did not err in failing to consider the issue of

whether Defendant Perdue was an independent contractor.

Having found that the trial court did not err in denying Defendant CBHB’s motion to

revise, we now examine the propriety of the trial court’s grant of summary judgment in light of

Defendants CBHB and Perdue’s remaining assertions of error. After a review of the record, we

find that the trial court did not err in granting the Plaintiffs’ summary judgment motion.

Although Defendants CBHB and Perdue assert that factual issues exist concerning Defendant

Perdue’s knowledge of the Plaintiffs’ prior history with Defendant McCarter, Defendant Perdue’s

knowledge concerning Defendant McCarter’s “reliability” or “intentions to defraud,” and

Defendants CBHB and Perdue’s knowledge concerning the bounced escrow check, we find any

potential factual disputes in regard to these issues to be immaterial. The undisputed facts in this

case show that Defendant Perdue knew that Defendant Hunter signed his wife, Janet Hunter’s,

name to the sale contract at issue without her knowledge or consent. Despite this, Defendant

CBHB nonetheless asserts in its brief that an issue of material fact exists as to “[w]hether the fact

that Janet Hunter had not signed the contract at issue constituted material information that

[Defendants Perdue and CBHB] failed to provide to [the Plaintiffs].” We disagree with this

contention.

This Court has long recognized “that the marital relationship alone does not supply

evidence of a principal and agency relationship giving [one spouse] the power of an agent to

contract [on behalf of the other].” Hammond v. Herbert Hood Co., 221 S.W.2d 98, 102 (Tenn.

Ct. App. 1948) (perm. app. denied May 6, 1949). As a result, Defendant Hunter’s act of signing

Janet Hunter’s name to the real estate contract, without her knowledge or permission, did not

bind Janet Hunter to the sale contract. In light of this, we find that the forgery of Janet Hunter’s

name to the contract at issue certainly constituted an adverse and material fact which the record

undisputedly shows Defendant Perdue had notice of and, thus, should have communicated to the

Plaintiffs under section 62-13-403. Since it is undisputed in the record that 1) Defendant Perdue

failed to disclose the forgery of Janet Hunter’s name to the Plaintiffs, 2) that this failure caused

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the Plaintiffs to enter into a contract that they would not have entered otherwise, and 3) that the

Plaintiffs were injured as a result, we find that the trial court did not err in granting summary

judgment in favor of the Plaintiffs and finding as a matter of law that Defendant Perdue, as

individual broker, and Defendant CBHB, as managing broker, violated Tenn. Code Ann. § 62-

13-403 and were thus negligent per se.

Having affirmed the trial court’s grant of summary judgment against Defendants CBHB

and Perdue under section 62-13-403, we now address the trial court’s grant of summary

judgment against Defendant Perdue for the Plaintiffs’ remaining claims. As previously noted,

the Plaintiffs in their complaint also asserted that Defendant Perdue was negligent per se for

violating section 62-13-404 of the Tennessee Real Estate Broker License Act of 1973 and also

charged Defendant Perdue with negligent misrepresentation and fraud. We address each of these

claims in turn.

In regard to the Plaintiffs’ first claim, we note that section 62-13-404 of the Tennessee

Code provides as follows:

Any licensee who acts as an agent in a transaction regulated by the Tennessee Real

Estate Broker License Act of 1973 owes to such licensee’s client in that transaction

the following duties, to:

(1) Obey all lawful instructions of the client when such instructions are within

the scope of the agency agreement between licensee and licensee’s client; and

(2) Be loyal to the interests of the client. A licensee must place the interests

of the client before all others in negotiation of a transaction and in other activities,

except where such loyalty duty would violate licensee’s duties to a customer under

§ 62-13-402 or a licensee’s duties to another client in a dual agency.

Tenn. Code Ann. § 62-13-404 (1997). This Court has long recognized that real estate agents owe

a duty of loyalty to their clients “and may not prejudice the interests of his [clients] to favor

himself or others.” Reece v. Homestead Realty, Inc., 626 S.W.2d 711, 712 (Tenn. Ct. App.

1981) (emphasis added). A part of this duty of loyalty “includes an obligation on the part of the

agent to make full and complete disclosure of facts that will benefit his [client].” Bessey v.

Arenallo, No. 85-186-II, 1986 WL 3987 (Tenn. Ct. App. Apr. 2, 1986), perm. app. denied

concurring in results only (Tenn. July 21, 1986)(citing Marshall v. Sevier County, 639 S.W.2d

440, 443 (Tenn. Ct. App. 1982).

As stated earlier, the undisputed facts in this case show that Defendant Perdue knew that

Janet Hunter did not sign the real estate contract at issue, and further knew that Janet Hunter had

no knowledge of and did not consent to the sale contract. Furthermore, the undisputed facts

show that Janet Hunter never granted Defendant Hunter, her husband, permission to sign the

contract on her behalf. Despite these facts, it is undisputed that Defendant Perdue informed the

Plaintiffs that he had obtained an offer from Janet Hunter to purchase the Hacks Cross House and

did not inform the Plaintiffs’ of the fact that Janet Hunter’s signature was forged and, thus, she

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was not legally bound to the provisions of the contract. As a result, the Plaintiffs entered into a

contract they would otherwise not have and were ultimately damaged as a result. Based upon

these undisputed facts, we find that the trial court did not err in awarding summary judgment to

the Plaintiffs and, thus, finding as a matter of law that Defendant Perdue was negligent per se for

violating section 62-13-404 of the Tennessee Code due to his breach of loyalty to the Plaintiffs.

We next address the trial court’s grant of summary judgment on the Plaintiffs’ negligent

misrepresentation claim.

In order to prevail on [a] negligent misrepresentation claim, [plaintiffs] must

establish the following four elements:

(1) the defendant is acting in the course of its business, profession, or employment,

or in a transaction in which it had a pecuniary (as opposed to gratuitous) interest; and

(2) the defendant supplies faulty information meant to guide others in their business

transactions; and

(3) the defendant fails to exercise reasonable care in obtaining or communicating the

information; and

(4) the plaintiff justifiably relies upon the information.

Samford v. Ogles, No. M2003-01299-COA-R3-CV, 2004 WL 2254026, at *2-3 (Tenn. Ct. App.

Oct. 6, 2004)(no perm. app. filed)(quoting Robinson v. Omer, 952 S.W.2d 423, 427 (Tenn. 1997)

(citation omitted)). In the case at bar, the undisputed facts show that Defendant Perdue, while

acting as the Plaintiffs’ real estate agent, informed the Plaintiffs that Janet Hunter had signed the

sale contract to purchase the Plaintiffs’ house. However, the undisputed facts also show that

Janet Hunter’s name was forged by Defendant Hunter without her permission or consent.

Furthermore, the undisputed facts show that Defendant Perdue knew that Janet Hunter had not

signed the sale contract, had no knowledge of the sale contract, and, thus, had not consented to

the sale contract. Finally, at the time of the Plaintiffs’ initial summary judgment motion,

Defendant Perdue did not dispute the Plaintiffs’ assertion that, had they known that Janet Hunter

had no knowledge of the contract, they would not have agreed to enter into the said contract.

Based upon these facts, we find that the trial court did not err in awarding summary judgment

against Defendant Perdue the issue of negligent misrepresentation.

Finally, we address the propriety of the trial court’s grant of summary judgment against

Defendant Perdue on the Plaintiffs’ assertion of fraud. In order to prevail on a claim of fraud, a

plaintiff must show

(1) an intentional misrepresentation with regard to a material fact, (2) knowledge of

the representation[’s] falsity-that the representation was made “knowingly” or

“without belief in its truth,” or “recklessly” without regard to its truth or falsity, (3)

that the plaintiff reasonably relied on the misrepresentation and suffered damage, and

(4) that the misrepresentation relates to an existing or past fact, or, if the claim is

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based on promissory fraud, then the misrepresentation must “embody a promise of

future action without the present intention to carry out the promise.”

Shahrdar v. Global Housing, Inc., 983 S.W.2d 230, 237 (Tenn. Ct. App. 1998) (perm. app.

denied October 19, 1998) (citing Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn. Ct. App.

1990)). Once again, the undisputed facts in this case show that Defendant Perdue knowingly and

intentionally misrepresented to the Plaintiffs the fact that Janet Hunter had signed the real estate

contract in dispute, thus making an offer on the Plaintiffs’ house. Rather, Defendant Perdue

knew that Defendant Hunter signed Janet Hunter’s name without her knowledge or consent. As

a result, Janet Hunter was not obligated to the terms of the contract. Due to Defendant Hunter’s

representations, the undisputed facts presented at the time of summary judgment show that the

Plaintiffs entered into a contract that they otherwise would not have and were ultimately

damaged as a result. Based upon the forgoing, we find that the trial court did not err in granting

summary judgment against Defendant Perdue for fraud.

Damages

Defendants CBHB and Perdue argue that the trial court erred in awarding damages in this

case for three reasons. First, the Defendants assert that the trial court erroneously determined the

market value of the Hacks Cross House. Second, the Defendants assert that the trial court erred

in holding the Defendants jointly and severally liable for all damages. Finally, the Defendants

aver that the trial court erred in awarding attorney’s fees to the Plaintiffs. In turn, the Plaintiffs

also assert that the trial court erred in failing to award the costs of the Langston Cove House as

an additional element of damages. We address each of these issues below.

(1) Valuation of the Hacks Cross House

In their briefs, Defendants CBHB and Perdue argue that the trial court erred in

determining the value of the Hacks Cross House. Specifically, they assert that the trial court

erred when it allowed the use of the Shelby County Tax Assessor’s value in determining the fair

market value of the property. Rather, the Defendants argue that the trial court should have relied

on the testimony presented by Mr. Jordan, an appraiser hired to appraise the Hacks Cross House

in 1996. For the foregoing reasons, we disagree.

In determining the fair market value of property, Tennessee courts look at what “a

reasonable buyer would give if he were willing to, but did not have to, purchase and that a

willing seller would take if he were willing to, but did not have to, sell.” Nashville Hous. Auth.

v. Cohen, 541 S.W.2d 947, 950 (Tenn. 1976). In this case, the trial court considered the

testimony from Mr. Jordan as well as an appraisal from the Shelby County Tax Assessor’s office

and made the following findings:

Now, the Court has listened with great interest to Mr. Jordan. While the Court was

very disappointed and surprised that Mr. Jordan–with all his years and experience of

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being an appraiser–had absolutely no idea that there was a statutory duty of the

assessor to even appraise the property, but merely to tax property without any

understanding of how the assessor would come up with the figure to tax, while this

Court found that incredible, they must, nevertheless, take a look at the level of

experience that Mr. Jordan has and his methodology of approaching the appraisal.

Now, his appraisal was such that he came to the conclusion that asking

$650,000 shortly after he appraised it would be reasonable. His range of figures went

all the way down to $586,700 as reasonable. Mr. Jordan indicated that if it doesn’t

sell within three to six months when properly marketed, then there’s a problem

somewhere. This Court doesn’t find this property failed to be properly marketed

after this sale fell through. In fact, the Court finds, to the contrary, that [Plaintiff

Gary Weaver] testifies that right after the sale failed, he went on ahead and got

another real estate agent who tried to sell the property. There’s no testimony that the

real estate agent was any less good than any other reasonably competent real estate

agent. The Court cannot presume incompetence without proof. In fact, it must

presume, to the contrary, that a prudent person is confident in what they do until one

proves to the contrary. Yet, there was zero offers. None whatsoever. The

[Plaintiffs] went on to try to market this property on their own for some considerable

period of time and had zero offers. They even offered it without even putting a price

on it and had zero offers and only [a] couple of inquiries.

Obviously, Mr. Jordan by his own testimony, in this Court’s opinion, was off

the mark. . . .

....

The . . . appraisal by the assessor is, in this Court’s opinion, admissible into

evidence. The Court, under these circumstances, will weigh it. Now the Court takes

into account that Mr. Jordan testified that had this property, in his opinion, been

worth only $443,900 he would have bought it at that point. The Court accepts that

as truthful. . . . The Court has not had any testimony of any other willing buyers at

any other price other than the one that fell through, the [$]595,000, which this Court

does not consider to be valid for this Court to consider since, obviously, that person

breached that contract and backed right out of the deal. So the Court doesn’t have

a particular scientific basis, but can only go with as rational [a] basis as it can.

The Plaintiff[s] invited the Court to accept the $443,900 value of the assessor

at the time. . . . Mr. Jordan’s estimates are obviously way off the mark. The best

[evidence] being that people trusted his assessments and it didn’t work. And his

lowest assessment was $586,700. This Court will take, therefore, that figure minus

the $443,900 figure and comes up with a difference of $142,800. It will take that

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difference and divide it by half which is $71,400. Add that back to the assessor’s

evaluation of $443,900 and get a figure of $515,300.

The trial court used the figure of $515,300 as the fair market value of the Plaintiffs’ house

in determining damages in this case. After a careful review of the record in this case, we find

that the evidence fails to preponderate against the trial court’s determination in this regard. We

affirm.

(2) Apportionment of Damages

In awarding damages in this case, the trial court issued an order stating as follows:

IT FURTHER APPEARING TO THE COURT, for the reasons set forth in the

Court’s oral findings of fact and conclusions of law pursuant to Tennessee Rule of

Civil Procedure 52, which the Court hereby incorporates by reference, that Plaintiff

should have a judgment against Defendants (except Defendant Chip Hunter, whose

bankruptcy injunction precludes judgment, and Defendant[] Perdue, whose judgment

is limited by the Order Modifying Discharge Injunction, entered on May 21, 2003,

in the Bankruptcy Court for the Western District of Tennessee Western Division,

Cause No. 98-21718L)[], jointly and severally, in the amounts of $55,600.00 for lost

value of real estate; $3,000.00 for 1998 and $3,000.00 for 1999 for necessary

maintenance costs, and $20,000.00 for attorneys fees, with prejudgment interest

computed at 10% per year on each amount from the date incurred, or, in the case of

attorneys fees, from the date paid, for a total judgment of $134,225.06 and the costs

of the cause.

On appeal, Defendants CBHB and Perdue assert that the trial court erred in holding all

Defendants jointly and severally liable for the damages suffered by the Plaintiffs. In their

respective briefs, both sides assert arguments dealing with whether damages should be awarded

jointly and severally or under principles of comparative fault, as set forth under McIntire v.

Ballentine, 833 S.W.2d 52 (Tenn. 1992). However, due to the ambiguous nature of the order

awarding damages, we are unable to address this issue.

In their complaint, the Plaintiffs asserted negligence claims against Defendants CBHB

and Perdue and a breach of contract claim against Defendant McCarter. The Plaintiffs further

asserted claims of fraud against Defendant McCarter, Defendant Perdue, and Defendant Hunter.

However, the record shows that, at trial, the court was precluded from assessing damages related

to fraud against Defendant Perdue due to the Order Modifying Discharge Injunction issued in

relation to Defendant Perdue’s filing for bankruptcy. Furthermore, the trial court was also

prevented from assessing damages against Defendant Hunter for fraud due to Defendant Hunter’s

filing of Chapter 7 bankruptcy. Thus, as it appears from the trial transcript, the trial court heard

evidence regarding damages resulting from the negligent acts of Defendants CBHB and Perdue

as well as damages stemming from the Plaintiffs’ breach of contract claim against Defendant

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McCarter.7 However, while the record makes clear the total amount of damages suffered by the

Plaintiffs, neither the trial transcript nor the final order of judgment make clear the amount of

damages awarded for each respective claim. Rather, all damages appear to have been lumped

together and applied jointly and severally among the Defendants. While principles of

comparative fault and joint and several liability have been applied in cases involving multiple

tortfeasors, the Plaintiffs have not cited, nor has this Court found, any case law allowing for a

negligent defendant to be held jointly and severally liable for another defendant’s breach of

contract when the negligent defendant was not a party to the contract breached. Rather, this

Court’s research indicates that liability under tort is separate and distinct from liability arising

under breach of contract and, thus, and any judgment for breach of contract should be against the

party guilty of the breach. See Packaging Consultants, Inc., v. Garvey, No 89-224-II, 1989 WL

155365, at *4-5 (Tenn. Ct. App. Dec. 20, 1989)(no perm app. filed).

In light of the ambiguity concerning the trial court’s award of damages, we remand this

case for a determination of the amount of damages resulting from the Plaintiff’s respective

negligence and breach of contract claims.

(3) Award of Attorney’s Fees

Defendants CBHB and Perdue finally argue that the trial court erred in holding them

jointly and severally liable for the Plaintiffs’ attorney’s fees because “no contract existed between

[Defendant] Perdue and [the Plaintiffs] allowing for attorney fees nor was there any statute

allowing recovery of attorney fees [against Defendants CBHB and Perdue.” In response, the

Plaintiffs assert that the trial court “did not grant damages for breach of contract, but rather

damages for breach of [Defendants CBHB and Perdue’s] statutory duty and misrepresentation.”

As a result, the Plaintiffs aver that they are entitled to attorney’s fees in order to be “fully

remedied” for the wrongs committed by Defendants CBHB and Perdue. We disagree.

First, although the Plaintiffs’ assert in their brief that the trial court granted damages for

breach of statutory duty and misrepresentation rather than for breach of contract, we have

previously noted that the trial transcript indicates otherwise. Most notably, the Plaintiffs’ own

counsel argued at trial as follows:

We are talking about contract damages here. That’s the measure of compensatory

damages that we see. And it’s the breach of contract damages that Your Honor’s

Order has set forth.

7

As noted previously, the Plaintiffs asserted in their brief that they only pursued damages at trial against

Defendants CBHB and Perdue arising from negligence per se and negligent misrepresentation. However, the trial

transcript also shows that the Plaintiffs sought, and subsequently received, a judgment for damages arising from

Defendant McCarter’s breach of contract, although the Plaintiffs admitted that Defendant McCarter was deceased and

apparently had no assets on which to execute judgment. In regard to damages for fraud on the part of Defendant

McCarter, the trial record, as well as the Plaintiffs’ assertions in their brief on appeal, appear to show that no damages

for fraud were sought against Defendant McCarter at the trial.

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As previously stated, due to the ambiguous nature of the trial court’s award of damages, we are

remanding this case for clarification regarding what damages are attributable to the Plaintiffs’

respective negligence and breach of contract claims. However, we nonetheless feel compelled to

address the trial court’s finding that Defendants CBHB and Perdues are liable for the payment of

the Plaintiffs’ attorney’s fees.

In Tennessee, courts follow the “American Rule,” whereby litigants are required to pay

their own attorney’s fees unless a statute or contractual provision provides otherwise. State v.

Brown and Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). In awarding

attorney’s fees in this case, the trial court stated that

we’re under the American rule as [you all] know, and normally, the attorneys fees

would not be allowed. However, because the contract has provided for attorney fees,

therefore, the question really is, is this any less a measure of damage than any other

damage? And the answer is, no. (Emphasis added.)

The only contract in the record providing for the payment of attorney’s fees was the sale contract

of sale to which Janet Hunter’s name was forged by Defendant Hunter. The provision in sale

contract dealing with attorney’s fees provides as follows:

COSTS TO ENFORCE CONTRACT: Should any party to this Contract bring an

action against any other party to this Contract to enforce any claim hereunder, the

prevailing party or parties shall be entitled to recover all costs of said action and

reasonable attorney fees. The term “prevailing party or parties” as used in this

paragraph shall be defined as the party or parties in whose favor a court shall rule or

against whom no relief is granted, provided such ruling becomes final and non-

appealable.

Although the sale contract does provide for the payment of attorney’s fees, the record shows that

neither Defendant CBHB nor Defendant Perdue were parties to this contract. Rather, the only

contract in the record between the Plaintiffs and Defendants CBHB and Perdue was an Exclusive

Listing Contract. However, this contract contains no provision providing for the payment of

attorney’s fees to the Plaintiffs in the event of litigation. As a result, we find that Defendants

CBHB and Perdue are not contractually bound to pay the Plaintiffs’ attorney’s fees.

Having found no contractual provision mandating the payment of attorney’s fees by

Defendants CBHB and Perdue, we next examine whether such fees are provided for by statute.

As previously discussed, due to the Order Modifying Discharge Injunction filed by Defendant

Perdue, the trial court only proceeded to award damages against Defendants CBHB and Perdue

for violations of sections 62-13-403 and 62-13-404 of the Tennessee Real Estate Broker License

Act of 1973 as well as for negligent misrepresentation. After reviewing the Brokers Act, we find

no provision allowing for an award of attorney’s fees due to a breach of the duties set forth under

sections 62-13-403 or 62-13-404. See Tenn. Code Ann. § 62-13-101 et seq (Supp. 2005).

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Furthermore, this Court has previously held that attorney’s fees may not be awarded based upon a

claim of negligent misrepresentation. See Don Smith Ford, Lincoln-Mercury, Inc., v. Bolinger,

No. E2003-02764-COA-R3-CV, 2005 WL 711963, at *5 (Tenn. Ct. App. Mar. 29, 2005)(no

perm. app. filed)(holding that it is improper for trial courts to award attorney’s fees “based upon

a common law theory of negligent misrepresentation”). Since we can find no legal basis for an

award of attorney’s fees against Defendants CBHB and Perdue, we reverse the trial court and

hereby vacate the award of attorney’s fees against Defendants CBHB and Perdue.

(4) Costs of the Langston Cove House

The Plaintiffs assert on appeal that the trial court, in determining the total amount of

damages, erred in failing to consider costs incurred from the Plaintiffs’ ownership of the

Langston Cove House during the first two years following the failure of the sale of the Hacks

Cross House. We disagree.

As previously discussed, the trial court appears to have awarded damages based upon

claims of negligence per se, negligent misrepresentation, and breach of contract. Under

Tennessee law, a defendant found guilty of a negligent act is liable for damages proximately

resulting from the breach of due care. Solomon v. Hall, 767 S.W.2d 158, 161 (Tenn. Ct. App.

1988). In a breach of contract case, the purpose of damages “is to place the plaintiff in the

position he would have been in had the contract been fulfilled in accordance with its terms.”

Garvey, 1989 WL 155365 at *4. “The damages recoverable are those that may be fairly and

[reasonably] be considered as arising out of the usual course of events from the breach or those

that may [reasonably] be supposed to have been in the contemplation of the parties when they

made the contract.” Id.

In refusing to award damages based upon the Langston Cove House, the trial court made

the following findings:

[W]hen the Plaintiff[s] chose to buy a home and still own [another] home, they

assumed a responsibility and a risk that they cannot transfer now to these Defendants.

These Defendants did not enter into the type of negotiations or . . . agreement

wherein they were assuming that kind of obligation. However, these Defendants did,

by the prior Ruling of this Court, violate the statutory duty to communicate. They

were negligent, they created the circumstances that now caused the Plaintiff to have

two homes. And while those Defendants are not responsible for the Langston

property, they are responsible for those damages that naturally flow as a result of

their misconduct on the Hacks Cross property.

This Court will not consider, as a measure of damages, any of the damages

related to Langston because it was not an obligation of the Defendants. If the

Langston property had been a gift, it would not have mattered. If the Langston

property had cost 10 times as much, it would not have mattered. This is not the

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reasonable consequential damage that flows from the failure to Defendants in the

form they should have regarding Hacks Cross. This is not reasonably foreseeable.

In this case, we agree with the trial court that any alleged damages resulting from the

Plaintiffs’ purchase of the Langston Cove House were not reasonably consequential from the acts

of the Defendants in this case. Rather, the record shows that the Plaintiffs had purchased the

Langston Cove House prior to placing the Hacks Cross House on the market with Defendants

CBHB and Perdue and prior to any negligent acts by Defendants CBHB and Perdue, and prior to

entering into the sale contract at issue in this case. Based upon these facts, we find that the trial

court did not err in not considering the Langston Cove House in determining damages.

Conclusion

Based upon the foregoing, we affirm the trial court’s grant of summary judgment against

Defendant Coldwell Banker Hoffman-Burke, Inc. and Defendant James Perdue. We also affirm

the trial court’s determination of value in regard to the Hack’s Cross House as well as its

exclusion of the costs associated with the Langston Cove House from damages. However, we

reverse the trial court’s ruling that Defendants CBHB and Perdue are liable for attorney’s fees

and remand this case for further clarification concerning the amount of damages awarded in

respect to the Plaintiffs’ claims of negligence per se, negligent misrepresentation, and breach of

contract. Costs of this appeal are awarded against the Appellants, Coldwell Banker Hoffman-

Burke, Inc. and James Perdue, and their sureties, for which execution may issue if necessary.

___________________________________

DAVID R. FARMER, JUDGE

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