(Tenn. Ct, App. February 19, 2009).
This case arises from a dispute over a contract for the sale of land. In the contract, Appellee Sellers made no warranty concerning the exact acreage of the tract. Appellant Buyer was given the right to have the tract inspected and surveyed prior to closing; however, he did not exercise that right. At the closing, Appellant also executed a waiver to any claims arising from a determination that the assumed acreage was incorrect. A survey performed after the closing indicated that the tract was approximately three acres less than the parties thought. Appellant Buyer brought suit against Appellee Sellers on grounds of fraudulent misrepresentation. Finding no error, we affirm.
Opinion may be found at the TBA website:
"From the inception of their dealings with Mr. Bielfeldt (or his agent), the Templetons never asserted that they knew the exact acreage of the tract. Because they were not certain of the exact acreage, the Templetons specifically made no warranty, and gave Mr. Bielfeldt the right to inspect and/or survey the tract before the closing. In short, it is apparent from the record that the Templetons were uncertain as to the exact acreage, and that they disclosed this fact from the beginning. Consequently, despite the fact that the tract was ultimately determined to be less than 15.31 acres, at the time of the contract, there is no evidence that the Templetons had knowledge of that fact. Moreover, because of the specific clause of the parties’ agreement allowing Mr. Bielfeldt to perform his own due diligence in ascertaining the exact acreage, there is no indication that the Templetons were trying to hide the anything. espite the fact that Mr. Bielfeldt was free to have the tract surveyed, and despite the Templetons’ agreement to modify the price accordingly, Mr. Bielfeldt did not avail himself of this right until after the closing. A person who knows the danger, appreciates the danger, and voluntarily exposes himself or herself to the danger is deemed to have assumed the risk of the injury he or she incurs. Under Tenn. R. Civ. P. 8.03, express assumption of the risk is a complete defense to liability. In not exercising his right to have the tract surveyed prior to the closing, Mr. Bielfeldt assumed the risk that the property contained less acreage." Id.
"Moreover, as set out above, Mr. Bielfeldt voluntarily signed a waiver of his right to bring a claim against the Templetons based upon actual acreage. Therein, Mr. Bielfeldt expressly agreed that, in the event a later survey revealed that the tract contained less acreage, he would have no claim against the Templetons for any credit or reduction of the sales price. Waiver is defined as the voluntary relinquishment or abandonment of a known right or privilege. A party who, by express or implied waiver, has refrained from exercising or enforcing his or her rights in a matter may be equitably estopped from asserting a claim. Consequently, we conclude that Mr. Bielfeldt has waived the very relief he now seeks." Id.
