IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 2006 Session
FORREST L. WHALEY and MARGARET ANN WHALEY v. JIM ANN
PERKINS, ET AL.
Appeal By Permission from the Court of Appeals, Western Section
Circuit Court for Shelby County
No. 95604-4 T.D. & 94890-8 T.D. Rita L Stotts, Judge
No. W2004-02058-SC-R11-CV - Filed on July 14, 2006
The Plaintiffs purchased from two of the Defendants a home located on a two-acre parcel of land that
had been part of a larger parcel. The Plaintiffs later discovered that the two-acre parcel had been
illegally subdivided from the larger parcel, and they filed suit alleging breach of contract, intentional
misrepresentation, negligence per se, and breach of warranty of title. In addition to other damages,
the Plaintiffs sought damages for emotional distress. A jury returned a verdict in favor of the
Plaintiffs and awarded $170,000 as compensatory damages and an additional $5,000 as punitive
damages. The Court of Appeals held, in pertinent part, that the Plaintiffs’ claim for damages for
emotional distress was barred by the one-year statute of limitations applicable to personal injury
actions. We hold that the one-year personal injury statute of limitations does not apply to this case,
and we therefore reverse that part of the intermediate court’s judgment. We affirm all other aspects
of the intermediate court’s judgment and remand to the trial court for further proceedings.
Tenn. R. App. 11 Appeal By Permission;
Judgment of the Court of Appeals Affirmed in Part, Reversed in Part, and Remanded.
ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which William M. Barker, C.J., and
E. RILEY ANDERSON , JANICE M. HOLDER , AND CORNELIA A. CLARK, JJ., joined.
Richard M. Carter, Paul H. Morris, and Brian K. Kelsey, Memphis, Tennessee, for Appellants,
Forrest L. Whaley and Margaret Ann Whaley.
John D. Horne, Memphis, Tennessee, for the Appellees, Jim Ann Perkins, Albert Lewis Beshires,
and Terry Lynn Beshires.
OPINION
I. Facts & Procedural History
Mrs. Jim Ann Perkins owned a seventy-five-acre farm in Shelby County. In 1985, Mrs.
Perkins agreed to give her daughter and son-in-law, Terry and Albert Beshires, two acres of the
larger parcel so that the Beshireses could build a home on the property. In July 1985, prior to Mrs.
Perkins deeding two acres to the Beshireses, the Beshireses obtained a sidewalk permit to construct
a driveway on the larger parcel. In August 1985, they also obtained approval to install a septic
system. Shortly thereafter, Mrs. Beshires went to the Memphis and Shelby County Office of
Construction Code Enforcement to obtain a building permit. Mrs. Beshires called her mother, Mrs.
Perkins, and obtained her permission to sign Mrs. Perkins' name to the building permit. The building
permit was issued listing Mrs. Perkins as “owner” and indicating that “owner” would be the general
contractor for the construction of the residence. In addition, the building permit indicated that the
residence would be built upon the seventy-five-acre parcel which belonged to Mrs. Perkins.
On October 29, 1985, approximately two months after Mrs. Beshires obtained the building
permit, Mrs. Perkins executed a warranty deed prepared by Earl Daley, a Memphis attorney. The
deed transferred two acres of the seventy-five-acre parcel to the Beshireses. On October 30, the deed
was recorded in the Office of the Register of Deeds for Shelby County. Mr. Daley subsequently
contacted Mrs. Perkins and informed her that the Beshireses would need two additional acres to
make the transfer legal, because under Shelby County's subdivision regulations a larger parcel of
property could not be subdivided into parcels smaller than four acres (with fifty feet of frontage)
without first proceeding through the subdivision approval process. Mrs. Perkins directed Mr. Daley
to prepare papers to transfer an additional two acres to the Beshireses; on December 12, 1985,
Perkins executed a second warranty deed conveying a second two-acre parcel to the Beshireses. That
deed was recorded in the Register's office on March 19, 1986.
After the second transfer, the Beshireses owned four contiguous acres and had fifty feet of
road frontage, therefore avoiding the necessity of going through the subdivision approval process.
The Beshireses completed construction of the home and lived in it until 1988.1
In early 1988, the Beshireses decided to move and listed their residence for sale with a
realtor. The property was re-listed on April 13, 1988. In that listing agreement, the Beshireses
indicated that the residence could be purchased with either two acres or four acres. Shortly
thereafter, the plaintiffs, Forrest and Margaret Ann Whaley, were shown the property. The Whaleys
were told that the house and two acres could be purchased for $136,000 or that the house and four
acres could be purchased for $157,000. On April 18, 1988, the Whaleys submitted an offer to
purchase the residence and two acres for $125,000. The Beshireses accepted the Whaleys' offer on
April 21, 1988. The transaction was closed on November 27, 1988. At no time did the Beshireses
or anyone else inform the Whaleys that the two-acre parcel would not comply with Shelby County's
subdivision regulations, nor did the Beshireses or anyone else inform the Whaleys that the septic
lines for the house extended beyond their two-acre parcel onto the other two-acre parcel.
1
Contrary to the application for the building permit, Mrs. Perkins was not involved in the construction of the
Beshireses residence and did not act as general contractor for the project.
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Mrs. Perkins and Terry Beshires both testified that they had a verbal agreement about what
would occur in the event the Beshireses sold the property. If the Beshireses sold the residence and
only two acres of the property, the Beshireses agreed to return the second two-acre parcel to Mrs.
Perkins; if the Beshireses sold the residence and the entire four-acre parcel, they agreed to pay Mrs.
Perkins for the second two-acre parcel from the sale proceeds. Pursuant to that verbal agreement,
the Beshireses transferred the second two-acre parcel back to Mrs. Perkins via a quitclaim deed in
July 1992.
In 1995, Perkins sold her farm property (now approximately seventy-three acres, including
the two acres returned to her by the Beshireses in 1992) to a third party for development of a
subdivision. On July 3, 1995, after a subdivision application for the farm had been filed, the
Memphis and Shelby County Office of Planning and Development (“OPD”) sent the Whaleys a
notice of hearing regarding the approval of the subdivision. On July 13, 1995, the OPD filed a staff
report which concluded that "the Whaley property . . . appears to have been created in violation of
the subdivision regulations." The Whaleys received a copy of the OPD report. They testified that
the report gave them their first knowledge that the property had been illegally subdivided.
Mrs. Whaley testified that she contacted Mrs. Perkins about the problem and that Mrs.
Perkins advised her that there was nothing she could do to assist the Whaleys. The Whaleys testified
that the illegal status of their property caused them significant emotional distress, including
depression, worry, and anxiety. They also testified that they had planned to move to Alabama
following Mr. Whaley's planned retirement so they would be closer to Mr. Whaley's mother and to
their children and grandchildren. Due to the uncertainty caused by the illegal status of their property,
and the resulting loss in the value of the property, Mr. Whaley postponed his retirement, and the
couple postponed their move to Alabama.
On May 26, 1998, the Whaleys filed a complaint against Mrs. Perkins, the Beshireses, and
the Whaleys’ title insurance carrier, alleging breach of contract, misrepresentation, and breach of
warranty of title. The Whaleys filed a second complaint for damages against the various realtors
involved in the Beshireses' sale of the property to the Whaleys. They subsequently filed an amended
complaint adding as a defendant the closing attorney for the transaction.
In October 2000, the Whaleys nonsuited their action against the closing attorney. In addition,
in February 2002, the trial court dismissed the complaint against the title insurance company, and
that ruling was subsequently affirmed on appeal.
The case against Mrs. Perkins, the Beshireses, and the various real estate agents went to trial
in April 2004. At the close of the plaintiffs’ proof, Mrs. Perkins moved for a directed verdict,
arguing that she had played no part in the sale of the property, that she had made no representations
of any kind to the Whaleys, and that the Whaleys’ claim for damages for emotional distress was
barred by the one-year statute of limitations governing personal injury actions. The trial court took
the motion under advisement. At the close of all the proof, Mrs. Perkins renewed her motion for a
directed verdict. The trial court denied the motion, and the case was submitted to the jury.
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The jury returned a verdict in favor of the Plaintiffs. The jury found Mrs. Perkins, the
Beshireses, the real estate agents, and the closing attorney to be at fault and attributed fault as
follows: Terry Beshires was found to be forty percent at fault; Mrs. Perkins was found to be thirty
percent at fault; Albert Beshires was found to be twenty percent at fault; the real estate agents were
collectively found to be nine percent at fault; and the closing attorney, who previously had been
dismissed as a party, was found to be one percent at fault. The jury awarded compensatory damages
to the Whaleys in the amount of $170,000. In a special interrogatory to the jury, the jury expressly
found that the actions of Mrs. Perkins, Albert Beshires, and Terry Beshires constituted “intentional
misrepresentation.” Following a punitive damages hearing, the jury ordered Mrs. Perkins to pay
$2,000 in punitive damages, Terry Beshires to also pay $2,000 in punitive damages, and Albert
Beshires to pay $1,000 in punitive damages.
Following the trial court's denial of the defendants’ post-trial motions,2 Mrs. Perkins and the
Beshireses filed a timely notice of appeal. The other defendants did not appeal. Mrs. Perkins and
the Beshireses raised numerous grounds in their appeal. The Court of Appeals held that the
Whaleys’ claim for damages for emotional distress was barred by the one-year statute of limitations
applicable to personal injury actions. The intermediate appellate court also held that the trial court
erred in failing to direct a verdict in favor of Mrs. Perkins on the ground that there was no material
evidence to support the jury’s verdict that she was liable for intentional misrepresentation. The
Court of Appeals further held that the trial court erred in instructing the jury on the appropriate
measure of damages and in failing to grant a directed verdict or judgment notwithstanding the
verdict3 on the issue of negligence per se. The intermediate court therefore vacated the trial court’s
judgment on the jury’s verdict and remanded the case with instructions to enter a directed verdict in
favor of Mrs. Perkins and to order a new trial as to the claims against the Beshireses.
II. Statute of Limitations
Although the Whaleys raise other issues, discussed below, the primary issue before this Court
concerns the appropriate statute of limitations.
A. Standard of Review
Because it is a question of law, the scope of review on this issue is de novo with no
presumption of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
B. Analysis
2
Mrs. Perkins and the Beshireses filed separate motions for judgment nothwithstanding the verdict or, in the
alternative, for new trial or remittitur.
3
A judgment not withstanding the verdict is a post-trial motion for a directed verdict and is subject to the
provisions of Tennessee Rule of Civil Procedure 50.
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The Court of Appeals held that the Whaleys could not seek damages for emotional distress
because their claim for such damages was barred by the one-year statute of limitations applicable to
personal injury actions. Tenn. Code Ann. § 28-3-104(a)(1) (2000). The Whaleys contend that the
Court of Appeals erred in applying the personal injury statute of limitations to the pending case.
The “applicable statute of limitations in a particular cause will be determined according to
the gravamen of the complaint.” Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 638 (Tenn. 2003)
(quoting Vance v. Schulder, 547 S.W.2d 927, 931 (Tenn. 1977)). The Whaleys assert that the
gravamen of their complaint is a property tort claim and that the three-year statute of limitations
applicable to property tort actions therefore applies. Tenn. Code Ann. § 28-3-105(1) (2000). They
contend that their claim for damages for emotional distress is not a separate cause of action but is
instead only an element of damages arising from their property tort claim.
We begin by pointing out that no issue is presented as to the availability of damages for
emotional distress in a property tort action. The defendants merely argue that the plaintiffs’ claim
for such damages is barred by the one-year personal injury statute of limitations. We note, however,
that:
Subject to some exceptions, generally, under ordinary circumstances, there can be no
recovery for mental anguish suffered by plaintiff in connection with an injury to his
or her property. Where, however, the act occasioning the injury to the property is
inspired by fraud, malice, or like motives, mental suffering is a proper element of
damage.
25 C.J.S. Damages § 99 (2002) (footnotes omitted) (emphasis added). See also Andrew L. Merritt,
Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society, 42
Vand. L. Rev. 1 (1989); Steven J. Gaynor, Annotation, Fraud Actions: Right to Recover for Mental
or Emotional Injuries, 11 A.L.R. 5th 88 (1993). Because the Plaintiffs’ complaint alleged and the
jury found that the defendants made intentional misrepresentations concerning the property, we
proceed under the assumption that such damages are available under the facts of this case.
In Swauger v. Haury & Smith Contractors, Inc., 512 S.W.2d 261, 262 (Tenn. 1974), this
Court analyzed the question of whether the one-year personal injury or the three-year injury to
property statute of limitations applied in a case in which faulty septic tanks caused property damage
and “inconvenience and loss of enjoyment.” The defendant argued that, because the complaint
sought damages for “inconvenience and loss of enjoyment,” the action was one for personal injuries
and that the one-year personal injury statute of limitations therefore applied. Id. This Court rejected
the defendant's argument, concluding that the gravamen of the complaint was “chiefly concerned
with injuries done to property.” Id. at 263. This Court reasoned that the “personal” elements of
damage, “inconvenience and a loss of enjoyment of their home for a period of two years,” were
“damages aris[ing] wholly as a result of the injury to plaintiffs’ property and not as a result of
anything done personally to them.” Id. This Court therefore held that the trial court erred in
dismissing the complaint based upon the one-year personal injury statute of limitations. Id.
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Our analysis in Swauger answers the statute of limitations issue in the pending case. The
gravamen of the Whaleys’ complaint is that the defendants’ actions injured their property, and the
damages they sought for emotional distress were “damages aris[ing] wholly as a result of the injury
to plaintiffs’ property and not as a result of anything personally done to them.” In other words, the
Whaleys’ “claim” for damages for emotional distress was merely an element of their overall claim
for damages for the injury to their property and not a stand-alone cause of action. Consequently, the
three-year property tort statute of limitations applies, and the intermediate court erred in holding that
the one-year personal injury statute of limitations barred the Whaleys’ claim for damages for
emotional distress.
III. Mrs. Perkins’ Liability
In their second, third, and fifth issues, the Whaleys assert, in summary, that the Court of
Appeals erred in vacating the judgment against Mrs. Perkins. The Whaleys argue that the
intermediate court improperly applied the standard of review and thereby erred in finding that there
is no material evidence to support the jury’s verdict against Mrs. Perkins. They also argue that the
defendants, including Mrs. Perkins, are jointly and severally liable to the plaintiffs.
A. Standard of Review
The applicable standard of review is set out in Tennessee Rule of Appellate Procedure 13(d),
which provides, “[f]indings of fact by a jury in civil actions shall be set aside only if there is no
material evidence to support the verdict.” Discussing that standard of review, we have stated:
When addressing whether there is material evidence to support a
verdict, an appellate court shall: (1) take the strongest legitimate view
of all the evidence in favor of the verdict; (2) assume the truth of all
evidence that supports the verdict; (3) allow all reasonable inferences
to sustain the verdict; and (4) discard all [countervailing] evidence.
Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.
1978); Black v. Quinn, 646 S.W.2d 437, 439-40 (Tenn. App. 1982).
Appellate courts shall neither reweigh the evidence nor decide where
the preponderance of the evidence lies. If the record contains “any
material evidence to support the verdict, [the jury’s findings] must be
affirmed; if it were otherwise, the parties would be deprived of their
constitutional right to trial by jury.” Crabtree Masonry Co., 575
S.W.2d at 5.
Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704-05 (Tenn. 2000).
Based upon our independent review of the evidence, we conclude that the Court of Appeals
did not err in its application of the standard of review, nor did the intermediate court err in finding
that there is no material evidence to support the jury’s verdict finding that Mrs. Perkins had made
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an intentional misrepresentation to the Whaleys. The evidence is virtually undisputed that Mrs.
Perkins made no representations of any kind to the Whaleys, because she had no contact with the
Whaleys at the time the Beshireses sold the property to the Whaleys. While the Whaleys assert that
Mrs. Perkins’ initial involvement in the Beshireses’ construction of the house and her verbal
agreement with Mrs. Beshires (concerning either the return of two acres or payment for two acres
upon the Beshireses’ sale of the property) implicated her in the Beshireses’ intentional
misrepresentations to the Whaleys, we reject that argument. There simply is no evidence that Mrs.
Perkins had any role in the Beshireses’ sale of the property to the Whaleys. We therefore must
affirm the Court of Appeals’ holding that there is no material evidence supporting the jury’s finding
that Mrs. Perkins made any intentional misrepresentations to the Whaleys.4
IV. Negligence Per Se
In their fourth issue, the Whaleys argue that the Court of Appeals incorrectly held that the
trial court erred in instructing the jury on negligence per se and that the Court of Appeals incorrectly
found that the error “more probably than not” affected the jury’s verdict.
A. Standard of Review
This issue is a question of law which we review de novo with no presumption of correctness.
Ridings, 914 S.W.2d at 80.
B. Analysis
The Whaleys argue that the Defendants’ violation of the Shelby County subdivision
regulations constituted negligence per se, for which the Defendants are liable.5 The intermediate
court rejected that argument, citing Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App.
2003), for the proposition that not every violation of a statute triggers the negligence per se doctrine.
We previously have summarized the doctrine of negligence per se as follows:
4
Because we find no material evidence to support the jury’s verdict against Mrs. Perkins, the Plaintiffs’ issue
concerning joint and several liability is pretermitted.
5
The Plaintiffs allege that the Defendants violated Section 105 of the Shelby County Subdivision Regulations,
as well as Sections 23-92 and 23-93 of the Shelby County Code and Tennessee Code Annotated section 13-3-410. We
conclude that Sections 23-92 and 23-93 of the Shelby County Code were not expressly violated by the Defendants’
actions and that Tennessee Code Annotated section 13-3-410, is inapplicable. The pertinent regulation for purposes of
our analysis is Section 105 of the Subdivision Regulations, which provides, in summary, that no land shall be subdivided
in the City of Memphis or the unincorporated part of Shelby County without approval of the preliminary plan and final
plat, and without the filing of the approved final plat in the Register’s office. The regulation also states that “No building
permit. . .shall be issued for any parcel or plat of land which was created by subdivision after the effective date of, and
which does not conform with, the provisions of these subdivision regulations.” The regulation exempts a parcel which
has four or more acres (but less than twenty) and which has a minimum of fifty feet of frontage on a public road.
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The standard of conduct expected of a reasonable person may be
prescribed in a statute and, consequently, a violation of the statute
may be deemed to be negligence per se. “When a statute provides
that under certain circumstances particular acts shall or shall not be
done, it may be interpreted as fixing a standard of care . . . from
which it is negligence to deviate.” Prosser and Keeton on Torts § 36,
p. 220 (5th ed. 1984). In order to establish negligence per se, it must
be shown that the statute violated was designed to impose a duty or
prohibit an act for the benefit of a person or the public. It must also
be established that the injured party was within the class of persons
that the statute was meant to protect.
Cook By and Through Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994)
(citations omitted). While the discussion in Cook refers to violation of a statute, we note that other
cases include violations of ordinances as a possible ground for application of the negligence per se
doctrine. See, e.g., Harden v. Danek Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998)
(stating, in pertinent part, “In order to recover under the theory of negligence per se, a party must
establish three elements. First, the defendant must have violated a statute or ordinance that imposes
a duty or prohibition for the benefit of a person or the public.”) (emphasis added).
In discussing the doctrine of negligence per se, the Court of Appeals has noted that the
doctrine “is not a magic transformational formula that automatically creates a private negligence
cause of action for the violation of every statute. Not every statutory violation amounts to negligence
per se.” Rains, 124 S.W.3d at 590 (citations omitted). As the intermediate court went on to say in
Rains:
The fact that the General Assembly has enacted a statute defining
criminal conduct does not necessarily mean that the courts must adopt
it as a standard of civil liability. Decisions regarding the proper civil
standard of conduct rest with the courts. Thus, the courts must
ultimately decide whether they will adopt a statutory standard to
define the standard of conduct of reasonable persons in specific
circumstances.
The courts consider a number of factors to determine whether
the violation of a statute should trigger the negligence per se doctrine.
The two threshold questions in every negligence per se case are
whether the plaintiff belongs to the class of persons the statute was
designed to protect and whether the plaintiff's injury is of the type that
the statute was designed to prevent.
Id. at 590-91 (citations omitted).
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Considering all of the foregoing principles, we conclude that the Defendants’ violation of the
Shelby County subdivision regulation does not warrant the application of the doctrine of negligence
per se. We first note that the unstated premise of the Plaintiffs’ argument is that because the
Beshireses’ property was illegally subdivided, the Beshireses automatically are liable under the
doctrine of negligence per se. As stated above, however, “[n]ot every statutory violation amounts
to negligence per se.” Id. at 590.
In considering the negligence per se issue below, the Court of Appeals concluded that the
Whaleys’ injury is not the type of injury which the subdivision regulation was designed to prevent.
We agree with the Court of Appeals’ conclusion and adopt the following analysis from the
intermediate court’s opinion:
these subdivision regulations were enacted largely for reasons related
to quality of life, among them, assuring adequate public facilities for
residents, minimizing pollution, providing for orderly layout and use
of land, protecting the value of land, preventing overcrowding, and
assuring effective traffic circulation. The harm alleged by the
Whaleys is not a harm the regulations were designed to prevent, but
rather, it is an accidental consequence of a [regulation] enacted to
prevent other harms to the community and its residents that could be
caused by the unregulated subdivision of land.
Based upon the foregoing, we conclude that the trial court erred in submitting the negligence
per se issue to the jury, and we affirm the intermediate court’s judgment as it pertains to this issue.
Given our holdings that there is no material evidence to support the jury’s verdict against Mrs.
Perkins and that the trial court erred in submitting the negligence per se claim to the jury, we
conclude that those two errors, especially when considered together, more probably than not affected
the jury’s verdict. See Tenn. R. App. P. 36(b). We therefore vacate the trial court’s judgment and
remand to the trial court with instructions to direct a verdict in favor of Mrs. Perkins and to hold a
new trial as to the Whaleys’ claims against Mr. and Mrs. Beshires.
V. Conclusion
For the reasons stated above, we hold that the Whaleys’ claim for damages for emotional
distress is not barred by the one-year personal injury statute of limitations, and we therefore reverse
that part of the Court of Appeals’ judgment. We also hold, however, that the Court of Appeals did
not err in vacating the trial court’s judgment as it pertains to the Whaleys’ claims against Mrs.
Perkins, and we therefore affirm that part of the intermediate court’s judgment. We likewise affirm
the intermediate court’s judgment as it pertains to the negligence per se issue.
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The costs of this appeal are taxed two-thirds to Terry Lynn Beshires and Albert Lewis
Beshires and their surety, and one-third to Forrest L. Whaley and Margaret Ann Whaley and their
surety, for which execution may issue, if necessary.
______________________________
ADOLPHO A. BIRCH, JR., JUSTICE
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