IN THE COURT OF APPEALS FOR THE

MIDDLE SECTION OF TENNESSEE

NASHVILLE, TN

Case No. M2021-00487-COA-R3-CV

)
David Simpkins and Sally Simpkins )
) ON APPEAL FROM THE CHANCERY
Appellants/Plaintiffs, ) COURT FOR THE 21st DISTRICT
)
v. ) APPELLANT’S RULE 36 OF APPELLATE
) PROCEDURE MOTION AND SUPPORTIVE
JOHN MAHER Builders, Inc., et. al, ) MEMORANDUM OF LAW FOR
JOHN MAHER and TONY MAHER ) IMMEDIATE REVIEW AND RULING
) FOR FINAL JUDGEMENT
) WITH PREJUDICE
Appellees/Defendants )
)

1
2
3 AGAINST APPELLEES, JOHN MAHER BUILDERS, INC., et. al,
4 JOHN MAHER AND TONY MAHER INDIVIDUALLY
5
6
7 Haines v. Kerner, 404 U.S. 519 (1972)
8 "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we
9 hold to less stringent standards than formal pleadings drafted by lawyers."
10
11 Picking v. Pennsylvania R. Co., 151 Fed 2nd 240 – The court below should have applied the rule of
12 Ghadiali v. Delaware State Medical Society, D.C. Del., 48 F. Supp. 789, 790, and Allen v. Corsano, D.C.
13 Del., 56 F. Supp. 169, 170, “that where a plaintiff pleads pro se in a suit for the protection of civil rights
14 the court should endeavor to construe the plaintiff's pleading without regard for technicalities.”
15
16 Pucket v. Cox, 456 2nd 233 - Pro se pleadings are to be considered without regard to technicality; pro se
17 litigants' pleadings are not to be held to the same high standards of perfection as lawyers.
18
19 1) Pursuant to Rules of Appellate Procedure 36, David Simpkins, “Homeowner”, and Wife,
20 Sally Simpkins, (hereinafter the ‘Appellants’ or ‘Plaintiffs’ or the ‘Simpkins’, or ‘Homeowner’), submit

Page 1 of 62
 1 this Motion and Memorandum of Law Pro Se, per the Rule of Appellate Procedure 36 for Judgment, and
2 request the Appellate Court to void, vacate all rulings by Judge James G. Martin III due to fraud on the
3 Court, violation of the Appellants Constitutional Rights and Trespass against the United States
4 Constitution, and to rule on a Final Judgment on behalf of the Appellants based on the law and authorities
5 already presented to the Chancery Court but re-iterated in this Motion and within the attached
6 Memorandum of Law. The Appellants will reference the extensive Bates-formatted exhibits previously
7 filed with the Chancery Court even though the Court Clerk’s Office allegedly falsely claims that they
8 received “No Exhibits” from the Simpkins which were also submitted to the Defendants with the Service
9 of Complaint on January 11, 2021.
10 2) The Appellants will prove to the Appellate Court the injustice of what has occurred not
11 just from a legal perspective in their case, but how they were denied the proper and legal adjudication of
12 their (13) merited and active claims against the Appellees due to alleged improper adjudication of their
13 complaint by the Chancery Court. The Rules of Civil Procedure, Rules of Evidence and Tennessee and
14 United Stated Constitutional Rights of the Appellant’s were violated by a Court of Law, and the Officers
15 of the Court of Law who allegedly demonstrated a clear intention of further ruining the Appellant’s lives
16 beyond what the Appellees had already accomplished. The Appellate Court is humbly requested to
17 determine what the Appellate Court will do by Law, and why and how to correct the extreme inequities
18 of injustice in this particular case for the Appellants, the Simpkins.
19
20 Merits v. Legal Technicalities and Procedural Niceties
21 “Tennessee law and policy have always favored permitting litigants to amend their pleadings to enable
22 disputes to be resolved on their merits rather than on legal technicalities.” 2009 WL 2957922 at *4
23 (quoting Hardcastle, 170 S.W.2d at 80); see also Webb v. Nashville Area Habitat for Humanity, Inc.,
24 346 S.W.3d 422, 432 (Tenn. 2011) (noting “the strong preference embodied in the Tennessee Rules of
25 Civil Procedure that cases stating a valid legal claim brought by Tennessee citizens be decided on their
26 merits”); Jones v. Prof’l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 572 (Tenn. 2006) (“The
27 Tennessee Rules of Civil Procedure are intended ‘to insure that cases and controversies be determined
28 upon their merits and not upon legal technicalities or procedural niceties.’”) (quoting Karash v. Pigott,
29 530 S.W.2d 775, 777 (Tenn. 1975)).
30
31 3) Per the above authority on Merits v. Legal Technicalities and Procedural Niceties, the
32 Appellants were never provided any support in any regard by the Court, in fact it is clear that the
33 Appellants were literally “raked across the coals” in order for a wealthy residential builder’s image to be
34 untarnished even if that image contradicts the residential builder’s true acts and failures to build
35 residential homes by the required building codes, to stand behind its warranty, and to ensure the “product”
36 they sold each new buyer is constructed so it is safe and healthy for the occupants and without defects.

Page 2 of 62
 1 The Appellants stated valid legal claims which were brought to the Tennessee Court System to be
2 adjudicated by an “impartial” Court and Officer’s of the Court who were supposed to abide by the Law,
3 to allow their case to be decided on the claims’ merits.
4 4) The Appellants proved the merits of “each claim” of their Complaint to the Chancery
5 Court, and provided the Court with statutes, authorities, affidavits, expert opinions, and a preponderance
6 of indisputable evidence but the Appellants were erroneously denied the respective relief and restitution
7 entitled to them by law as a result of the Chancery Court’s alleged prejudicial and errored proceedings,
8 rulings, and distinct alleged and egregious intentional prejudice shown by the Court. For example, the
9 Court allegedly mounted a defense for the Appellees and supported the Appellees alleged deceptive legal
10 argument using one statute to dismiss the Appellant’s complaint, with thirteen (13) claims, in its entirety
11 without proper or legal adjudication by law. The Appellants complaint was incorrectly dismissed first,
12 “in its entirety”, second, dismissed on an alleged false legal basis, third, dismissed harshly as, a “final
13 judgment” and fourth, dismissed “with prejudice”, which is within itself an unjustified form of alleged
14 purposeful injury and intentional harm by the Judicial Officer of the Court who was provided proof that
15 the Appellees violated the law and the rights of the Appellants. As the Appellate Court Judges review the
16 Appellant’s case, the Appellate Judges are asked to determine if the evidence shows that there was an
17 alleged distinct “[A]genda” by the Court with the opposing counsel to protect the Builder and to ensure
18 the defeat and ruin of the Appellants while both parties knowingly were violating the Appellants
19 Constitutional Rights to due process of law.
20 5) The Appellant’s will prove that their rights under the Tennessee and United States
21 Constitutions have been allegedly egregiously violated. Under Tennessee Constitution Article I, § VIII;
22 “That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
23 outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
24 judgment of his peers or the law of the land.”, id. Tennessee Constitution Article I, § XVII; “That all
25 courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation,
26 shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.
27 Suits may be brought against the state in such manner and in such courts as the Legislature may by law
28 direct.”.
29 6) Tennessee Constitution, Article I, XVII, states, “That all Courts shall be open”, but this is
30 not to be allowed by the Chancery Court for the Simpkins. It further states, “[E]very man (woman), for
31 an injury done to him in his lands, goods, person or reputation (SHALL have remedy by Due Course of
32 Law), but this is not to be allowed by the Chancery Court for the Simpkins. And lastly it states every

Page 3 of 62
 1 person shall have, “right and justice administered without sale, denial, or delay.”, but this is not to be
2 allowed by the Chancery Court for the Simpkins. The Appellants claim that they have received
3 “prejudiced” treatment by a Court of Law that was supposed to finally protect the Pro Se Litigants rights
4 and in an impartial manner to administer “right and justice without sale, denial, or delay”. This was
5 especially imperative considering the Simpkins have proven themselves to be victims of foul play by this
6 Builder and by Agencies of the State of Tennessee with which the Simpkins filed complaints to resolve
7 this matter, but these agencies made every effort to derail investigations into the Simpkins complaints in
8 order to allegedly ensure John Maher Builders Inc. would not be held accountable to the law.
9 7) The Appellants request the Appellate Court review not only their case, but to look into the
10 behavior of the Court, the alleged fraud, and the fraud on the Court by the Officers of the Court, and as
11 these Pro Se Litigants have read in numerous Appellate Cases, that the Appellate Court rules for justice,
12 where justice serves the very purpose in which it was intended, and provides a sound ruling based on the
13 law, and the authorities. The Appellants respectfully request that the Appellate Court apply the same
14 principles to the Appellants presentation of their case, the statutes, and associated authorities and their
15 [P]reponderance of evidence which proves their case without any doubt. The Appellants underscore for
16 the Appellate Court that if a Builder “abandoned” a homeowner throughout the warranty period, then the
17 Builder has clearly “Breached the Contract”, Tenn. Code Ann. § 28-3-109(a)(3), and “Breached the
18 Warranty” Tenn. Code Ann. § 47-2-314. In the Appellants case, the one year Warranty has been extended
19 by Law, Tenn. Code Ann. § 47-18-1402, and is still in effect due to the failure of the Builder to address
20 and resolve the reported issues with the property, which means that the “statute of limitations” does not
21 come into play because the statute of limitations have not begun to run due to the fact that the property,
22 the “product”, “goods” is still under warranty. Due to this fact, all Tennessee Statutes are still available
23 to the Simpkins/Appellants by law to include the Tennessee Consumer Protection Act of 1977, Tenn.
24 Code Ann. § 47-18-104. Unfair or deceptive acts prohibited.
25 8) The Court unjustly and without legal basis denied the Appellants the use of Tenn. Code
26 Ann. § 47-18-1402, Warranty Extension Period based on a home, a residential property, not being a
27 “product”, which was incorrect and alleged deliberate fraud on the Court by the Court. The “Court of
28 Appeals” in 1982, clarified that a “house” which is a residential property is also classified as a “product”
29 with Case Law, Dixon v. Mountain City Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982). So, this is not
30 something new and the Court knew this as well. The Court deprived the Appellants of their rights. See
31 the full write up on Pgs. 30, 31, 32.

Page 4 of 62
 1 9) Because the Court of Appeals ruled that a “product”, the “property”, also known as a
2 “house” or “home”, fell under strict liability in tort, the Appellant’s property is covered by Tenn. Code
3 Ann. § 29-28-103. This statute provides up to six years to file a complaint. But again, in this case, the
4 property is still under warranty until it is repaired, therefore, no statute of limitation applies, and the
5 Officers of the Court knew this but attempted to take advantage of Pro Se Litigants and railroad their case
6 out of the Judicial System which was supposed to protect the rights of the Appellants.
7 10) To continue, because of the failure of the Builder, the Appellees, who abandoned the
8 Appellants, and refused to repair the property by law, the property is now classified as a complete and
9 total loss by A-1 Waterproofing. Therefore, the Appellants are entitled to a Final Judgement due to the
10 Fraud on the Court by the Appellees and the Court, and the fraud by the Builder.
11 11) This Pro Se Litigant would like to notify the Appellate Court that he is a Veteran of the
12 United States Naval Warfare Submarine Service, that he and his Wife have suffered an egregious injustice
13 and that he and his Wife are due justice by the Tennessee Court System. This Veteran is humbly providing
14 the following information to demonstrate that his training in the United States Navy Submarine Service
15 developed in him a temerity and a tenacity to pursue all assignments to the best of his ability and until
16 they are successfully completed. This legal matter has been and will continue to be treated no differently.
17 This Veteran will unwaveringly pursue the proper adjudication of this complaint until he receives the
18 lawful Justice that the law entitles the Pro Se Litigants / the Simpkins to for the alleged violations of law
19 by John Maher Builders, Inc., John Maher, Tony Maher, and the Officers of the Court, who allegedly
20 committed clear fraud upon the Court to further harm and defeat the Simpkins.
21 12) For Background, the Naval Submarine Service requires the very best in its Naval
22 Submarine Personnel who are specifically chosen for the Service based excelling at and completing
23 numerous arduous training programs. The ones who make it through are the ones who are the “Elite” for
24 the Naval Submarine Service. One such intensive training program is to rise up through a one-hundred
25 (100) foot tower of water from the bottom to the top without any breathing apparatus and to properly rise
26 without exploding their lungs. This is both a physical and mental challenge. You only have two days to
27 master this training program and course, or you fail, and numerous candidates fail due to various issues.
28 Submariners are also rigorously trained to know every operating system on a Submarine, to know how
29 to operate ALL the equipment, to know all tanks, pumps, hydraulic piping systems, all electrical systems,
30 oxygenation systems, air scrubber systems, fuel oil systems, induction and exhaust systems, Radio, Fire
31 Control, ESM, Radar Systems. They must know where all emergency systems are to include manual
32 overrides for electrical, hydraulics, pumps, ventilation, firefighting, absolutely everything, and they do,

Page 5 of 62
 1 and they get the job done no matter what it takes. To achieve full “Submarine Qualifications” in order to
2 wear the “Dolphins” as a “Certified” Navy Submariner typically takes a 1-1.5 years and the experience
3 of two or more full rotations under the sea to gain the knowledge and understanding in order to become
4 fully qualified to stand watch for his “Operator Watch Stations”, and to become “Submarine Qualified”
5 for the Naval Personnel’s full “Submarine Qualifications” in order to wear the “Dolphins” as a “Certified”
6 Navy “Submariner”. This is a daunting task to learn all of the systems and subsystems of an entire
7 Submarine and be able to operate any and all of aspects of the systems in an Emergency Situation should
8 the normal watch stander for that rating “become injured or fall in the line of duty”. This Veteran’s
9 capabilities garnered him the nickname “The Bulldozer,” as one lets nothing stand in his way to get the
10 job done. This Veteran was awarded several Commendations for going above and beyond the Call of
11 Duty several occasions, which were issued by both his Commanding Officer Captain P.J. Dolan, and
12 from Fleet Rear Admiral J. D. Williams ComSubGroup Two. Further because this Veteran excelled at all
13 assignments, he was selected out of thousands of candidates for Navy Command Advancement from
14 Third Class Petty Officer to Second Class Petty Officer. And further selected for Officer Candidate
15 School to become an Officer in the United States Navy. This level of personal detail is shared here to
16 underscore for the Tennessee Court System that this Veteran/ Pro Se litigant has no intention to succumb
17 to and accept the injustice that has been allowed to continue by the State of Tennessee and the Court
18 System to date. Whether today or tomorrow, this Veteran has the temerity and the tenacity to get the job
19 done, and this Pro Se litigant knows he will win his case because he has already proven his case and feels
20 that he has already won his case. It is the Chancery Court who railroaded his case out of the Judicial
21 System without any justification or true legal basis other than the allegedly fraudulent and completely
22 false and contrived current basis which is “Void”, and the Court is out of order and “Nullified”.
23 13) The Builder has committed egregious, malicious acts against the Appellants that are clear,
24 and that they are not alleged acts, but are clear intentional malicious fraud and other fraudulent acts. One
25 of the acts was fraudulent concealment of the mandatory requirement for the “utility penetrations” to be
26 sealed, but it was later discovered that the utility penetrations were not sealed which caused continuous
27 and ongoing damage to the entire property. The Builder stated that they had sealed them and the COO
28 Tany Maher stated that he confirmed they were sealed, and the Appellants Real Estate Agent Erin Krueger
29 was present during these discussions.
30 14) In the Tennessee Supreme Court endorsed Benchbook, titled “Meeting The Challenges Of
31 Self-Represented Litigants”, it states that, “Many authorities now recognize, as does the Tennessee
32 Supreme Court, that for a judge to do nothing to address the needs or problems faced by self-represented

Page 6 of 62
 1 litigants actually advances injustice and contributes to the loss of respect for the judicial system by a
2 substantial portion of the public.” The Appellants’ experience with the Chancery Court in Franklin, TN
3 clearly shows that a devastating injustice has been allegedly intentionally allowed to advance.
4 15) Prior to the Appellants continuing with the appeal process, the Appellants believe they are
5 within their rights to request and be awarded a Final Judgment per Rule of Appellate Procedure 36 (a)
6 based on the alleged “fraud(s)” by the Builder, the alleged “fraud on the Court,” and the alleged deliberate
7 acts by the Court which issued rulings that were not in accordance with the proper rules, statutes, and
8 authorities. As examples, the Court allegedly deliberately: misrepresented the applicable Local or State
9 rule(s) of Civil Procedure for the benefit of the Appellees, misrepresented the statutes and authorities that
10 would or would not apply, added language that was not found written in the statute in order to change the
11 interpretation, and drew incorrect comparisons, (apples to oranges), citing authorities that were not in any
12 way similar to the Simpkins case or which had been superseded by more contemporary decisions. This
13 was alleged deliberate misrepresentation by the Court against the Simpkins proving alleged clear
14 prejudice.
15 16) The Appellants state that the Chancery Court is in violation of the United States
16 Constitution and has committed alleged Treason against the Constitution of the United States for not only
17 violating the Appellants Constitutional Rights, but further allegedly trespassing on those rights by not
18 voiding the prior erred Chancery Court Ruling upon notice of such error which was the dismissal of the
19 Appellants complaint in its entirety. The Chancery Court clearly violated the Rules of Civil Procedure
20 when by its own admission it did not include the March 15th, 2021 “Amended Emergency Motion”, and
21 Memorandum of Law in its March 23rd, 2021, decision, when in fact that motion and supporting
22 memorandum of law and the preponderance of direct evidence proved the Appellants claims. The
23 Appellants then proved the falsity of the March 23rd decision in their March 29th and April 20th, 2021,
24 Motions but the Court did not follow the procedure to set a new hearing date in which it would include
25 the Appellants March 15th Motion in its decision. Instead, the Court continued on its same course and in
26 its April 7th Order approved the dismissal of the Appellants case in its entirety without proper legal basis
27 to do so in violation of the rules of civil procedure, in violation of the rules of evidence an in violation of
28 the Appellants constitutional rights to due process of law.
29 “Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if
30 a court is "without authority, its judgments and orders are regarded as nullities. They are
31 not voidable, but simply void; and form no bar to a recovery sought, even prior to a
32 reversal in opposition to them. They constitute no justification; and all persons concerned
33 in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v.
34 Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Elliot v. Piersol.

Page 7 of 62
 1
2 17) The Appellants request relief by the Appellate Court through a Final Judgment, as
3 appropriate, and respectfully request a ruling without delay, due to the harsh and unacceptable living
4 conditions the Simpkins are suffering in because they have been denied immediate relief in the form of
5 funds for substitute housing. The Appellate Court is requested to award damages which have been
6 detailed in the Appellants Exhibit (SIMP-00A131 - 1375 Round Hill Ln Mitigation of Damages Expenses
7 - Final), which the Appellants assume may be adjusted by the Appellate Court based on statutes and
8 authorities. The Appellate Court is asked to consider the “egregious maliciousness” of this case, which
9 now involves multiple parties and multiple alleged frauds that have been perpetrated against the
10 Appellants, first by John Maher Builders, Inc., and its Officers, then by the State of Tennessee, and then
11 by the Counsel for the Defendants and now the Court which allegedly committed both intrinsic fraud and
12 extrinsic fraud on the court during the Chancery Court proceedings, January 2021 - June 2021.
13 18) Intrinsic fraud occurs “within the subject matter of the litigation,” and it includes such
14 things as falsified evidence, forged documents, or perjured testimony. Whitaker, 32 S.W.3d at 230.
15 19) Extrinsic fraud…“involves deception as to matters not at issue in the case which prevented
16 the defrauded party from receiving a fair hearing.” Nobes v. Earhart, 769 S.W.2d 868, 874 (Tenn. Ct.
17 App.1988).
18 20) The Appellants have attempted to summarize within this Motion and the supportive
19 Memorandum of Law the information relative to both the Appellants complaint against the Builder as
20 well as the new issues resulting from the Court’s alleged deliberate misrepresentations and errored
21 procedures and rulings to include harassment of the Appellants, that have added more complexity and
22 further injustice and delay to an already complex case. The Appellants will reference bates evidence,
23 exhibits, statues, and case law throughout the Motion and Memorandum of Law. The Appellants ask the
24 Appellate Court for its lenience for the non-technical commentary, explanations and formatting used by
25 the Pro Se Litigants. The Simpkins humbly acknowledge to the Appellate Court their lack of knowledge
26 of the law and especially appellate procedures and apologize for their “unintentional verbosity in the
27 pursuit of being thorough.” Further, if the Appellants exceed the specified page numbers allotted for
28 pages in the Motion or the Memorandum of Law, the Appellants respectfully request an allowance for
29 such excess due to the complexity of this case.
30 21) Hereafter, the Appellate Court will be consistently referred to the “Appellate Court.” The
31 Chancery Court will be referred to as either “the Court” or the “Chancery Court”, or the “Presiding
32 Judge”. The Appellee’s names may be abbreviated: John Maher Builders, Inc., may be referred to as

Page 8 of 62
 1 (“JMB Inc.”, “JMB”, the “Builder”, or the “Appellees”); John Maher, CEO and President of JMB, may
2 be referred to as (“JM”, or “JMB”, or “JMB Inc.”, or the “Builder”, or the “Appellee”); and Tony Maher,
3 COO of JMB, may be referred to as (“TM”, or “JMB”, or “JMB Inc.”, or the “Builder”, or the
4 “Appellee”). Eddie Savage, Superintendent of JMB, hereinafter may be referred to as (“ES” or “JMB”,
5 or “JMB Inc.”, or the “Builder”, or the “Appellee”).
6 22) The Appellants incorporate every allegation, all evidence, all exhibits, all claims, and all
7 causes of action contained in the Simpkins complaint against John Mahers Builders Inc, and all
8 allegations, evidence, and exhibits in all motions filed in the Chancery Court, and all documents filed
9 with the Appellate Court to date, as though set forth fully herein for this “Appellate Rule 36 of Appellate
10 Procedure Motion & Memorandum of Law” for review and ruling by the Appellate Court.
11
12 I. Introduction.
13 23) Since the Appellants evidence was allegedly intentionally never reviewed, referenced, or
14 included in the Chancery Courts ruling, the Appellate Court is requested to review and consider all of the
15 Simpkins Evidentiary Exhibits while it reads, considers, and rules on this Motion. The Chancery Court
16 Clerk waited the full forty-five (45) days to transfer the record, and so it is unclear whether those
17 documents are available to the Appellate Court yet or not. There is also the question of whether all
18 evidence was transferred and arrived as originally filed by the Simpkins. (See Exhibit - SIMP-0AC007 -
19 Clerk & Master Notice Record Transmission 7-7-2) “Williamson County Court Clerks Notice Allowed
20 until July 19, 2021, to Provide Appellants Record”). The Appellants underscore the fact that they
21 presented the Court and the Defendants at the time they filed their complaint and served the Appellees,
22 with a copy of all evidence to prove the claims in their complaint. The Court would not acknowledge the
23 preponderance of evidence and the Facts proven in these Evidentiary documents, as if they did not exist.
24
25 II. The Parties And Jurisdiction
26 24) The Appellants David and Sally Simpkins reside and live at 1375 Round Hill Ln, Spring
27 Hill, TN, 37174, in Williamson County.
28 25) The Appellees JM and TM et. al., place of business, JMB, Inc., is located at 1109 Kedron
29 Rd, Spring Hill, TN, 37174.
30 26) JMB Inc. is registered to do business in Williamson County Tennessee.
31 27) Appellants are informed and believe, and based thereon allege, that each of the Appellees
32 were the agents, servants, employees, representatives, partners, and related or affiliated entities of each

Page 9 of 62
 1 other, and in doing the things alleged in this pleading, were acting in the course and scope of their agency,
2 employment, or retention with the permission, consent, authority, and ratification of the other Appellees.
3 28) Jurisdiction is proper for the Nashville Appeals Court because the Appellants filed an
4 appeal with the Nashville Appeals Court in Davidson County. Jurisdiction is proper because the
5 Williamson Count, TN. Chancery Court ruled for a “Final Judgement” with “prejudice”. “A final
6 judgment is one that resolves all the issues in the case, ‘leaving nothing else for the trial court to do.’”
7 In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel. McAllister v. Goode,
8 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997)).
9 29) Venue is proper in Davidson County, because the Court of Appeals hears all matters for
10 Middle Districts of Tennessee, and the Williamson Count, TN. Chancery Court operates within the 21 st
11 District of the Middle Section of Tennessee and the Chancery Court stated it no longer has jurisdiction
12 over the case.
13
14 III. Court’s Deprivation of Appellant’s Rights and Refusal to Allow the Use of
15 Appropriate Statutes and Authorities Presented By Appellants
16 30) Appellants will present to the Appellate Court instances of both “intrinsic fraud” and
17 “extrinsic fraud” allegedly committed in the Chancery Court by both the Opposing Counsel and the Court
18 itself for fraud on the Court. These were alleged coordinated and intentional acts by the Court and the
19 Defendant’s/Appellee’s Counsel to expediently dismiss the entire case without proper legal basis and to
20 delay the Plaintiff’s/Appellant’s case until their property went into foreclosure. With the property
21 foreclosed, and the Simpkins displaced, the Plaintiffs/Appellants would no longer have the hard evidence
22 of the subject Property and homelessness would handicap the Appellants ability to continue to fight for
23 their legal rights. The Chancery Court refused to grant the Appellees requests to temporarily stay the
24 foreclosure, knowing the Property is the central evidence. And once the property is foreclosed on, the
25 unconscionable acts could be forever concealed of how the Defendants/Appellees failed to follow the
26 building codes, laws, and industry standards; how the Builder abandoned the Plaintiffs/Appellants to
27 endure a defective and damaged property with systemic mold that created an extremely unforgiving and
28 progressively toxic environment. The toxic conditions and negligent construction practices which caused
29 them, have damaged all the materials and equipment in the property, harmed the Simpkins and their pets,
30 and completely ruined the Simpkins personal property including their vehicle, their finances, and their
31 livelihood which was a home-based business. This nightmarish situation, which John Maher Builders
32 Inc. and its Officers knew they were leaving the Simpkins to suffer losses from, has stolen four (4) years

Page 10 of 62
 1 of the Simpkins life away from them. Mr. James Gafford of A-1 Waterproofing has proved and
2 documented through several inspections over two-years’ time the numerous defects and causes of the
3 Property’s progressively unlivable environment. (See Exhibit - SIMP-00A91 – A-1 Waterproofing Suppl
4 Invest Inspection by Inspector James Gafford, 10-30-20).
5 31) The Appellant’s vehicle has also been a casualty of the mold spores from the Property,
6 which have been unavoidably tracked into the car daily and have caused severe disintegration and
7 contamination of the materials. Mrs. Simpkins has no option but to drive the vehicle as is to work daily
8 and even though she is not as reactive as Mr. Simpkins, who cannot ride in the vehicle at all without
9 severe reactions, the contaminated car interior affects her breathing, eyes, nasal passages, throat, and
10 lungs. She must drive with the windows down at all times. The extensive property issues have caused the
11 Simpkins to be up against the wall with their finances. . Their financial resources were consumed by the
12 costly and ongoing mitigation demands of the property and the Builder forcing the Simpkins to endure
13 such horrific circumstances by them taking no action whatsoever for almost four years, allegedly figuring
14 the Simpkins will eventually accept defeat and abandon the Property.
15 32) If the Appellate Court cannot rule promptly in favor of the Appellants with a “Final
16 Judgment” with “Prejudice” that “Denies the Appellees Any Appeal”, then the Appellants respectfully
17 request that the Appellate Court immediately rule for a TRO to stop the foreclosure on the Property which
18 will preserve the Property as evidence. Additionally, the Appellants respectfully request the Appellees
19 be ordered to “immediately pay the Appellants an award of restitution” to allow the Appellants to move
20 into a Substitute housing, to catch up all arrearages on the property’s mortgage, to place the Appellants
21 Pets into a safe temporary living situation, and to cover medical costs for the Appellants and Pets ill
22 health. The Chancery Court refused to acknowledge or rule on the Mold Experts repeated requirements
23 that the Builder cover the costs for the Simpkins Substitute Housing expenses.
24 33) The Chancery Court allegedly intentionally refused to rule on multiple requests of the
25 Appellants on the numerous alleged frauds committed by the Appellees detailed within the Simpkins’
26 Complaint and subsequent motions, which the Court allegedly did in an extremely biased positive manner
27 for the obvious benefit of the Defendants/Appellees. The Court falsely stated that the Court could not
28 rule on the Appellants issues because the Court required a hearing to do so. But, in the April 7th, 2021,
29 Order the Court stated, “The Court will either rule based on the motion and response or set the matter
30 for further proceeding.” In an Order issued in May 2021, the Court ruled again to dismiss the entire case
31 without setting a new hearing that was supposedly required in order for the Court to address the
32 Plaintiffs/Appellants issues in its March 2021 “Emergency” Motions. So, the Court apparently can rule

Page 11 of 62
 1 on Motions without a hearing, it is that the Court will not rule on the Plaintiffs/Appellants Motions
2 without a hearing. This again shows unjustified prejudice by a Court of Law against the Appellants for
3 no reason. Therefore, the Court is operating outside the bounds of the judiciary and therefor all rulings
4 by this Court are null just as the Court is null.
5 An abuse of discretion is found in the following circumstances: a trial court has applied an
6 incorrect legal standard or reached a decision which is against logic or reasoning that caused an
7 injustice to the party complaining. Henry v. Goins, 104 S. W. 3d at 479 (citing State v. Stevens,
8 78 S. W. 3d 817, 832 (Tenn. 2002) (quotations and additional citations omitted)).
9
10 "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that
11 species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by
12 officers of the court so that the judicial machinery cannot perform in the usual manner its impartial
13 task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968);
14 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated, "a decision
15 produced by fraud upon the court is not in essence a decision at all, and never becomes final."
16
17 “Second, a judge is not immune for actions, though judicial in nature, taken in the complete
18 absence of all jurisdiction.[29] Mireles v. Waco 502 US 9, 116 L Ed 2d 9, 14, 112 S Ct 286 (US
19 1991)
20
21 Should a judge not disqualify himself, then the judge is in violation of the Due Process Clause of
22 the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a
23 tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.").
24
25 Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement,
26 only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
27 108 S. Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance);
28 United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985)
29
30 34) First, the fact is that the Court was obliged to rule and first establish whether the Builder
31 had committed fraud, which the Court did not, and would not do, and this altered the case outcome for
32 the benefit of the Appellees. Secondly, when the Court knows of an authority on the matter, particularly
33 a well-established authority that is commonly used for any one of the Appellants claims, the Court is
34 required to utilize such authorities or other issues to further justice for all parties. The Court is also
35 required to utilize the authorities the Appellants presented to the Court. When the Court selected which
36 authorities it would consider or not consider, or allegedly misrepresented the conclusions or relevance of
37 the authorities it selected, it is allegedly intentionally “advancing injustice and contributing to the loss of
38 respect for the judicial system”. This is even more true when the Court knows it is causing an injustice
39 towards the Pro Se Litigants/Plaintiffs/Appellants in favor of the Defendants/Appellees and knows that
40 the ruling will provide an unjust benefit for the Defendants/Appellees, which is exactly what has occurred

Page 12 of 62
 1 in the Chancery Court numerous times for the Appellees in violation of the rules of civil procedure, in
2 violation of the law and in violation of the Appellant’s Constitutional Rights.
3 35) Thirdly, that the Court states that it requires an authority before it can rule, is incorrect.
4 There have been prior rulings on new issues of law by various Courts when no standing authority had
5 been established. In those cases, the Court then uses the most applicable law or authorities that could
6 “speak” to the subject matter and infer from logical deduction to create a new ruling which establishes a
7 new potential precedent for that issue. Therefore, the Court’s statement that it could not rule on some of
8 the Appellant’s issues without authority is allegedly false. While the Court required the Pro Se Litigants
9 to provide statutes and authorities on everything that the Appellants requested the Court to rule on, the
10 Court did not make that a requirement of the opposing counsel and his legal arguments for the Appellees.
11 In fact, the opposing counsel was allowed a broad license to make any claim he chose without quoting
12 any statutes or authorities, without presenting a shred of evidence, and finally, and suspiciously, the Court
13 did not require the Appellees to submit affidavits to swear to the truthfulness of their statements and facts.
14 Yet the Court has required the Appellants to do so. This is clear prejudice by a Court of Law against the
15 Appellants.
16 36) But most egregious of all is the (“alleged”) fraud upon the Court by the Officers of the
17 Court as follows.
18 37) First the Appellants will present the following authorities: “An abuse of discretion is
19 found in the following circumstances: a trial court has applied an incorrect legal standard or reached a
20 decision which is against logic or reasoning that caused an injustice to the party complaining. Henry v.
21 Goins, 104 S. W. 3d at 479 (citing State v. Stevens, 78 S. W. 3d 817, 832 (Tenn. 2002) (quotations and
22 additional citations omitted)). Further, and more importantly, “A judgment may not be rendered in
23 violation of constitutional protections. The validity of a judgment may be affected by a failure to give the
24 constitutionally required due process notice and an opportunity to be heard. Earle v. McVeigh, 91 US
25 503, 23 L Ed 398. See also Restatements, Judgments ' 4(b). Prather v. Loyd, 86 Idaho 45, 382 P2d 910.”
26
27 "Courts are constituted by authority and they cannot go beyond that power delegated to
28 them. If they act beyond that authority, and certainly in contravention of it, their judgments
29 and orders are regarded as nullities ; they are not voidable, but simply void, and this even
30 prior to reversal." Williamson v. Berry, 8 How. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).
31
32 "The law is well-settled that a void order or judgment is void even before reversal", Valley v.
33 Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 ( 1920 )
34

Page 13 of 62
 1 38) By the Court’s own admission in the Court’s April 7th Order on Pg. 2, the Court Officer
2 states this, “At the time of the March 23, 2021, hearing, the Court did not receive a bench copy of the
3 Amended Response. Thus, it was not considered at the time of the March 23, 2021, hearing. Therefore,
4 the Court directs the Defendants to file a response addressing the Simpkins’ arguments within ten (10)
5 days from and after entry of this Order.” The Court goes on to further state, “The Court will either rule
6 based on the motion and response or set the matter for further proceeding.”
7
8 39) Wait…. For the Appellate Court, the Appellants “must reiterate” that incredulous and
9 allegedly incriminating statement by the Court again…
10
11 “At the time of the March 23, 2021, hearing, the Court did not receive a bench copy of
12 the Amended Response. Thus, it was not considered at the time of the March 23, 2021,
13 hearing. Therefore, the Court directs the Defendants to file a response addressing the
14 Simpkins’ arguments within ten (10) days from and after entry of this Order.” What?
15
16 40) The Appellants will address the Court’s admission and the Court Ordered directive to the
17 Counsel of the opposing party. The Court should be reading Motions presented by the Appellants, then
18 ruling on the requested relief within the Motions.
19 41) First, the Court made a reference to the “Amended Response”. The Court’s choice of
20 words downplayed what the Appellants actually filed, which was an “Amended Emergency Motion”.
21 The Amended Response was the March 15, 2021 “Amended Emergency Motion” that was nineteen
22 (19) pages and supported by a seventy-one (71) page “Memorandum of Law” which presented the facts
23 as to why the Plaintiffs/Appellants won their case. And these were the most important documents the
24 Appellants filed with the Court and are the very documents that the Court claims, “it did not receive a
25 bench copy of Eight (8) days prior to the hearing”, which again was what the Court downplayed as the
26 “Amended Response” and but did not mention the supporting “Memorandum of Law”. By the Court
27 allegedly stating that “At the time of the March 23, 2021, hearing, the Court did not receive a bench copy
28 of the Amended Response. Thus, it was not considered at the time of the March 23, 2021, hearing, is an
29 admission of not including it in the Court’s decision process. The “Amended (Emergency) Motion” was
30 confirmed by the Court Clerk’s Office as having been delivered to Judge James G. Martin, III who
31 accepted the “Amended Emergency Motion” in the AM of March 16, 2021. Both Judge Martin and
32 Attorney Brewer stated that no new facts or evidence were introduced when in fact that is exactly what
33 the Appellants had performed but both parties were deliberately ignored the March 9, 2021, and March
34 15, 2021, Motions. The Appellants had introduced that the property was still under warranty due to the

Page 14 of 62
 1 Statute Tenn. Code Ann. § 47-18-1402: Extended Warranty Period. Since the Court Clerk’s Office is
2 making a different statement than the Judicial Officer of the Court it warrants the question, why? Why
3 did the Judicial Officer make a different statement than the Court Clerk’s Office? The Appellants recap
4 some important points about the Officers of the Court. The Appellants will let the Judges of the Court of
5 Appeals come to their own conclusion, but it is crystal clear to the Appellants what has happened in this
6 case with the Officers of the Court.
7 1. The Opposing Counsel for the Defendants/Appellees did not acknowledge much less respond
8 to the March 9th or March 15th Motions and Memorandums of Law. And by not responding to
9 them within the fifteen (15) day timeframe the Appellees waived their rights to a defense per
10 Rule of Civil Procedure 12.08. But notice that the Court “allowed” the Appellees to respond
11 instead of holding them accountable to Rule 12.08 with the Court showing clear prejudice
12 against the Appellants and depriving the Appellant’s of their rights by law and showing pure
13 positive bias for the Appellees.
14 2. The Court also did not acknowledge or respond to the March 9th or March 15th Motions and
15 Memorandums of Law either. The Court was requested to rule on the Motions but never did.
16 3. Even after the Court recognized that it did not receive, and therefore did not consider, the
17 Appellants March 23, 2021, Emergency Motion and Amended Memorandum of Law, the
18 Court further delayed, and in the end, never ruled on the issues in that Emergency motion, nor
19 ruled on the March 9th Motion and Memorandum of Law, which the Court did not deny
20 receiving.
21 4. The fact that both the Court and Opposing Counsel, who received certified copies by
22 mail, did not acknowledge nor respond to the March 9th or March 15th Motions and
23 Memorandums of Law is “astounding”. They both acted as if those “Filings” did not
24 exist. How could both Officers of the Court “at the same time” not acknowledge or
25 respond to two case-defining Motions.
26 5. Then, the Court later claims it did not receive a bench copy of the March 15th, 2021, Amended
27 Emergency Motion and Memorandum of Law when, in fact, the Plaintiffs/Appellants had
28 confirmed with the Court Clerk’s Office on March 16th, 2021, in the AM that the Court, Judge
29 James G. Martin, III, did receive a copy of the nineteen (19) page Motion and the seventy-one
30 (71) page Memorandum of Law. The senior Court Clerk stated that Judge Martin accepted
31 them directly and acknowledged that it was an Emergency Motion.

Page 15 of 62
 1 6. Further the Court in the April 7th Order ,which was void and worthless in and of itself, as well
2 as a glaring trespass on the Appellant’s rights, admitted to not including this significant Filing
3 in the March 23rd, 2021, hearing, then incredulously ordered the opposing counsel to argue
4 the March 15th Amended Emergency Motion and Memorandum of Law, but unbelievably
5 Attorney J. Paul Brewer did not do what the Court ordered Attorney Brewer to do. Instead,
6 Attorney Brewer deliberately argued the Plaintiffs/Appellants March 29th, 2021, Motion
7 objecting to ruling during the hearing and merely re-iterated what the Court had already stated.
8 So, the Appellees allegedly deceptively still never responded to the March 9th nor March 15th
9 Motions, even upon Court order.
10 7. It is “astounding” that an “Emergency” Motion was never addressed by the Court, never
11 followed up on by the Court Clerk, never brought to the Judge’s attention by his assistant, Ms.
12 Card, and eight days after its filing would not be addressed at the hearing in which the Court
13 makes a ruling to dismiss the complaint entirely.
14 8. The fact that the “Emergency” Motion was not addressed by the Court on April 7, 2021, is
15 incredulous when the Court is admitting that it had not included the Motion or Memorandum
16 of Law in the hearing, which is twenty-three (23) days after the “Amended Emergency
17 Motion” was filed. The opposing party, the Appellees, were required to respond to the motion
18 within the fifteen (15) day timeframe in order to present a defense. By failing to respond to
19 the Motions within the fifteen (15) day timeframe by the Rules of Civil Procedure, the
20 Defendants/Appellees waived all their rights per Rule of Civil Procedure 12.08 to any defense.
21 By the Court “Not” ruling on the Emergency Motion but directing the Appellees to respond
22 after the deadline is an alleged deliberate prejudicial act against the Appellants by the Court.
23 This was a clear violation of the Rules of Civil Procedure, a violation of the Rules of Evidence
24 and a blatant violation of the Appellants Constitutional Rights and the Court being in violation
25 of the United States Constitution.
26 9. By the Court’s own admission, it had already made a ruling as follows on Pg. 1 of the April
27 7, 2021, Order, Lines 3, 4, 5; “The Court entered its Order “dismissing the litigation” on
28 April 5, 2021. Because the April 5, 2021, Order is not a final order, the Court finds that Rule
29 60.02 is not applicable.” Since the Court has stated that it did not receive a bench copy, and
30 supposedly did not see or read the March 15, 2021, Motion and Memorandum of Law, then
31 why didn’t the Court set a new date for a new hearing per the Rules of Civil Procedure? By
32 not setting a new date for a hearing the Court stepped out of the bounds of the Judicial system

Page 16 of 62
 1 and violated the Plaintiff’s/Appellant’s rights for due process of law by knowingly and
2 intentionally not including the March 15, 2021, Amended Emergency Motion and
3 Memorandum of and also not including the March 9, 2021, Motion and Memorandum of Law
4 either. The question is why did the “Court refuse to allow either the March 9, 2021, Motion
5 or the March 15 Amended Emergency Motion and Memorandums of Law to be included in
6 the ruling and the statutes, authorities and evidence presented in both?
7 10. By the Court refusing to consider the facts in either of those Motions, the Court has allegedly
8 deliberately withheld Motions, Memoranda and Evidence that was presented with those
9 Motions and Memorandums of Law therefore committing fraud on the Court and violating
10 the Appellant’s Constitutional Rights.
11 11. Further, in May of 2021, two months later, by the Court stating in its May 7, 2021, Order that
12 it was just now “addressing” the March 9, 2021, Motion and the March 15, 2021, Amended
13 Emergency Motion, by the simple “mention” of the Motions in its Order, is an admission of
14 the Court furthering its previous act of not ruling on an Emergency Motion for two months,
15 when the normal timeframe is five days. But more importantly the Court was acknowledging
16 both Motions but STILL did not including all of the material facts, evidence and supporting
17 law and authorities within the Emergency Motion nor the Memorandum of Law when the
18 Court dismissed the Simpkins/Appellants case once and for all and with prejudice. Mentioning
19 but not “Ruling” on the Amended Emergency Motion and Memorandum of Law in the Order
20 twenty-three days later then allegedly proved the Court acted in a clear distinct deliberate
21 manner with extreme prejudice against the Plaintiffs and then again committed this alleged
22 act of Treason against the United States Constitution.
23 42) The Emergency which the Court never acknowledged but was required to respond to
24 within the five days, was due to the fraud on the Court by the opposing party and due to the conditions in
25 the property which were rapidly escalating from the onset of the warmer weather. The warmer weather
26 caused the mold to sporulate heavily and it was harshly affecting the Appellants, and at this particular
27 stage, Mrs. Simpkins especially. Keep in mind that the Simpkins have had to endure numerous varieties
28 of mold species and worked daily at reducing the mold sporing which is almost impossible when the
29 mold is inside walls, in the hardwood floors, in the carpeting, coming out of the ceilings, walls and the
30 from under the tile in the bathrooms and laundry room. The property was being constantly bombarded
31 with the contamination of the mold spores. The Appellants had already established this fact with the Court
32 through other Motions and then the tragic event which almost took Mrs. Simpkins’ life on March 20 th,

Page 17 of 62
 1 2021. The Court failed to rule properly by the law and provide the relief requested over and over by the
2 Appellants and refused to hold the Builder accountable for funding Substitute housing, which was
3 required and delineated in several Investigative Reports, the Court was intentionally violating the rights
4 of the Appellants in an egregious and reckless manner. The Court protected the Builder and made no
5 rulings against the Builder whatsoever. Therefore, the authority listed after this paragraph provides the
6 clear meaning for the Appellate Court’s understanding of the nature of the violation of the Rules of Civil
7 Procedure, the Rules of Evidence and the violation of the law and the Appellants Constitutional Rights.
8
9 "Courts are constituted by authority and they cannot go beyond that power delegated to
10 them. If they act beyond that authority, and certainly in contravention of it, their judgments
11 and orders are regarded as nullities ; they are not voidable, but simply void, and this even
12 prior to reversal." Williamson v. Berry, 8 How. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).
13
14 43) The Appellants will prove that they won their case with the following stated claims,
15 statutes, and authorities below, entirely supported by Appellate and Supreme Court decisions. The
16 Appellants presented these in their Complaint, their Motions and in both Memorandums of Law, but were
17 denied the use of them even though they had already proven their case with each stated statute and
18 authorities together with their preponderance of evidence.
19 44) The Appellants present a summary of the issues with the fraud on the Court to the
20 Appellate Court in both this Motion and the supporting Memorandum of Law. Further the Statute, Tenn.
21 Code Ann. § 28-3-105, that the Court and the opposing party are using to quash the Appellants complaint,
22 without question, has not exceeded the statute of limitations based on facts, evidence, statutes, and
23 authorities presented herein which the Court “Refused” to acknowledge and rule on in violation of
24 everything.
25 45) The Court allegedly committed fraud on the court when it both ignored and refused to rule
26 on any of the remedies provided the Simpkins by law for these timely and merited claims:
27 a) frauds, breach of contract, breach of warranty, theft, fraudulent concealment, fraudulent
28 misrepresentation, constructive fraud, intentional fraud, and promissory fraud;
29 b) abandonment, which is a Breach of Contract by Law, Tenn. Code Ann. § 28-3-109(a)(3);
30 c) then Breach of Contract for failure to perform the required repairs to the damaged property,
31 Tenn. Code Ann. § 28-3-109(a)(3);
32 d) Abandonment of warranty, which is a Breach of Warranty, Tenn. Code Ann. § 47-2-314 -
33 Implied warranty Merchantability Usage of trade;

Page 18 of 62
 1 e) The Property is still under Warranty per Tennessee Statute, Tenn. Code Ann. § 47-18-1402 -
2 Warranty Extension Period,
3 f) Entitlement of Tenn. Code Ann. § 66-36-103(1) which provided the Appellants an additional
4 180 days or six (6) months additional time to toll the statute of limitations and,
5 g) And “Theft” per Tenn. Code Ann § 39-14-154(b)(1)(A)(i), (2)(B),(c)(1): New home
6 construction and home improvement services; offenses; penalties and restitution, the act of Theft
7 occurred upon the Builder refusing to refund the Appellants their monies for the Bulder selling
8 an incomplete, defective, pre-damaged and dangerous property that the Builder would never
9 warranty.
10 46) The Court refused to address or rule on the matter of Breach of Contract which occurred
11 when the Builder knowingly sold the property with pre-existing mold and water intrusion problems,
12 knowing those conditions had pre-damaged the building materials during construction and would
13 continue to cause damage to the building materials on a continuous basis after the sale. Then the Court
14 refused to address or rule on the fact that Tony Maher admitted to the Breach of Contract when he told
15 Detective Robert Carden that he sold the property with the pre-existing mold issue in violation of the law.
16 Further Tony Maher threatened the Simpkins when they refused to close on the property when they
17 disclosed at the last minute that the property had mold in the crawlspace and stated that it was normal
18 and once the HVAC had a run a few days would dry up, flake off and go away. The Builder violated the
19 law by forcing the Appellants to continue with the purchase of the property or lose all their deposits
20 already paid to the Builder, which is alleged extortion, (Tenn. Code Ann. § 39-14-112) - Extortion. (See
21 Appellant’s Complaint Pg. 25, Lines 4-11), (SIMP-00A99 – Objection to Singing Agreements with JMB
22 Under Duress RE Caulking & Completion 8-3-17). But the Court refused to address this issue or rule on
23 it, the Court in fact ignored it completely.
24 Tenn. Code Ann. § 39-14-112) - Extortion
25 (a) A person commits extortion who uses coercion upon another person with the intent to:
26 (1) Obtain property, services, any advantage or immunity; or
27 (2) Restrict unlawfully another's freedom of action.
28
29 47) As the Appellants have proven over and again to the Court, there were several other
30 misrepresentations and concealments in addition to the deliberate concealment of the unsealed utility
31 penetrations. On August 3rd, 2017, JMB Management in an alleged premeditated manner committed the
32 wrongful act of “knowingly making false statements in their Tennessee Residential Property
33 Disclosure form stating that the Appellees were unaware of any (1) damage, (2) defects or (3)

Page 19 of 62
 1 malfunctions, (2) nor any water, and/or known existing or mold presence was in or on the subject property.
2 Then with alleged pre-meditated intentions, the Appellees withheld information about mold which Eddie
3 Savage stated had been growing in the crawlspace for months, but the Appellees waited until late in the
4 afternoon hours before closing to “mention” the material fact that there was “mold” in the crawlspace,
5 but intentionally never made proper written Disclosure of mold and water issues as required by law. Tenn.
6 Code Ann. § 66-5-202. Mold – Causes damage to materials – Ralph Hall Et Al. V. Jimmy D. Tabb Et
7 Al. W2020-00740-COA-R3-CV – (March 25, 2021).”, “Scott Campbell, Et Al. v. William H. Teague,
8 Et Al. No. W2009-00529-COA -R3-CV (March 31, 2010)”
9
10 “Although the trial court denied the Halls’ TCPA claim, it granted their claim for intentional
11 misrepresentation against the Tabbs. The Tabbs appeal this ruling. The tort of intentional
12 misrepresentation is also referred to as “fraudulent misrepresentation” or “fraud” and is the
13 successor to Tennessee’s common law action for “deceit”. Hodge v. Craig, 382 S.W.3d 325, 342
14 (Tenn. 2012) (citing Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 904 n.1 (Tenn. 1999); First
15 Nat’l Bank of Louisville v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991)).
16
17 “As the weeks passed, the Campbells discovered more problems with the Property. One of these
18 problems was a strong stench (both inside and outside the house). Ultimately, the Campbells
19 discovered that the smell inside the house emanated from stagnant water and mold in the crawl
20 space.” Scott Campbell, Et Al. v. William H. Teague, Et Al. - W2009-00529-COA -R3-CV (March
21 31, 2010)
22
23 48) Reference the Appellants Complaint on Pg. 40 Para 45, lines 5-10. The Simpkins
24 complaint details nearly the exact same experience as the Campbells with the putrid smells, taste and feel,
25 in the Scott Campbell, Et Al. v. William H. Teague, Et Al - W2009-00529-COA -R3-CV (March 31, 2010l,
26 case law which the Court refused to consider. The Simpkins to would learn that the smells were emanating
27 from the mold and water in the crawlspace, but they would learn two years later that the turbid water
28 from the sink had drained down into the main duct line of the 1st floor HVAC Unit. It was the failure of
29 JMB’s plumbers to address the water which overflowed from dishwasher then the sink U-trap down into
30 and under the hardwood floors into the crawlspace. Then the water bypassing the U-trap and running
31 down under the sink into the wide open duct, which building codes do not allow. It was inappropriate,
32 unprofessional, and reckless for JMB’s plumbers to make the same flippant response that Eddie Savage
33 did about the mold in the crawlspace, that the HVAC will dry up the hardwood floors, the crawlspace
34 and the water and mold would dry up, then the mold would flake off and go away. The plumber was
35 clearly instructed to say this.
36 49) Per the authority below, Murvin v. Cofer, the case discusses pre-existing conditions that
37 the Murvin’s were unaware of, just as the Simpkins were unaware of all the pre-existing defective and

Page 20 of 62
 1 damaged conditions left unaddressed by JMB management, who knowingly, willingly, intentionally, and
2 maliciously refused to fix the pre-existing damage and defective conditions knowing the issues would
3 cause the Homeowners great grief over the coming years. Meanwhile JMB would maintain its profit
4 margin from the property by simply playing its well-rehearsed game called “dodge all warranty repairs.”
5 What makes this most egregious is that John Maher Builders Inc. knew that that the unresolved issues
6 would further damage the property, that the Simpkins would suffer horrifically from those issues as they
7 worsened and knew that the Simpkins would be facing financial and health hardships because of the
8 worsening property damage, even potentially facing bankruptcy and/or foreclosure, which the Simpkins
9 are. These acts by the Appellees were done with the explicit malicious intent.
10
11 (Murvin v. Cofer, 968 S.W.2d 304 (Tenn. Ct. App. 1997))
12 “The Court finds that there were significant problems with the house at 2908 Reynard Trail, and
13 that those problems preexisted the sale of the house to the plaintiffs, and that the defendants had
14 an obligation to disclose certain of those problems to the plaintiffs. This duty of disclosure arises
15 under the Tennessee Consumer Protection Act found at T.C.A. 47-18-101 and subsequent
16 numbers.”
17
18 50) Upon JMB’s last minute improper “mention” of mold in the crawlspace, “incredibly”, the
19 Chancery Court found no fault with the Builder for failing to disclose this serious and extremely
20 dangerous issue or in JMB allegedly “extorting the Simpkins to finalize closing on the property with the
21 conditions or forfeit their monies”. Then, JMB on August 3rd, 2017, would knowingly lie about
22 completing the foam sealing in the crawlspace. Eddie Savage claimed to have completed it himself and
23 Tony Maher stated that he had visually inspected and verified that the foam sealing was completed. In
24 fact, Eddie Savage never performed these “critical and mandatory” IRC 2012 and IECC 2009 Building
25 Codes, and Tony Maher and Eddie Savage allegedly “intentionally colluded to conceal” this fact. This
26 alleged fraudulent deception was treated as insignificant to the Court. By the Court failing to hold JMB
27 accountable to the alleged “fraudulent misrepresentation and fraudulent concealment” it shows that the
28 Court acted with prejudice against the Plaintiffs/Appellants and shows the Court is complicit with the act
29 and therefore the Court has exceeded its judicial bounds and the Court is by law nullified.
30
31 Under Federal law, which is applicable to all states, the U.S. Supreme Court stated that if a court
32 is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but
33 simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them.
34 They constitute no justification; and all persons concerned in executing such judgments or
35 sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328,
36 340 (1828) Elliot v. Piersol
37

Page 21 of 62
 1 51) Then, during the final walk through and in fact the on August 3, 2017, in an attempt to
2 placate the Simpkins who were being forced to buy the property with mold in the crawlspace or lose all
3 their deposits, which all had been paid. JMB would make the claim that the mold would “would dry up,
4 flake off, and go away after the HVAC had been running a few days because supposedly the HVAC
5 would dry up the moisture in the crawlspace.” How exactly that an HVAC system, a closed system, would
6 condition a crawlspace that was supposedly sealed off from the interior was a process that the Builder
7 would not disclose. The harsh reality would be discovered in January 2018 during the mold inspection, a
8 critical discovery which the Chancery Court treated as insignificant. The Report issued on January 31st
9 of 2018, found that “none” of the “utility penetrations” were sealed in the crawlspace and that the moldy
10 air was being sucked into the interior. This proved that JMB Management committed alleged “fraudulent
11 misrepresentation” and “fraudulent concealment”, making the date of the Report the “time of discovery”
12 relative to the running of the statute of limitations. Neither the Court nor the opposing counsel would
13 address the discovery of the unsealed utility penetrations in January 2018 and in fact the Court refers to
14 this event in generic terms as a date of “repairs” and avoided any incriminating language referencing the
15 materially significant discovery of the unsealed penetrations. This demonstrated that the Court was
16 complicit with the Counsel for the Defense in refusing to acknowledge the January 2018 discovery in
17 order to falsely establish August 2017 as the time of discovery for ALL property issues.
18 “It is well recognized that fraudulent concealment prevents the running of the statute of limitations
19 and that the statute begins to run from the time of discovery *13 of the fraud.” Boro v. Hidell, 122
20 Tenn. 80, 120 S.W. 961; Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104.
21
22 52) By the above stated authorities, the discovery that fraudulent concealment had occurred
23 proved in January of 2018 proved that the “Statute of Limitations” were tolled (stopped) until January of
24 2018, and they began to run from that time for this discovery alone. Other statutes and authorities were
25 presented for several other “discoveries” which tolled the statute of limitations accordingly for each new
26 discovery. The Court which knew of these authorities refused to properly rule based on that authority and
27 the case law, allegedly violating the Judicial Process intentionally against the Simpkins to protect the
28 Builder.
29 IV. Issues, Law and Argument
30 First Issue - “Fraudulent Concealment and Fraudulent Misrepresentation”
31 53) Utility Penetrations in the crawlspaces are [a] “mandatory” requirement to be sealed by
32 IRC 2012 and IECC 2009 Building and Energy Codes. (See Exhibit - SIMP-00A6 - Air Barrier &
33 Insulation Installation – Shafts and Penetrations). In the Appellants property the “utility penetrations”

Page 22 of 62
 1 had apparently not been sealed throughout the construction process and it was added to the “Punch List”
2 on item number nine (9), (See Exhibit - SIMP-00A7 - Punch List - Builder Confirms Foam Sealed
3 Crawlspace 7-17-17), to be performed before the Appellants closed on the property. On August 3rd,
4 2017, one day before the closing on the property, Eddie Savage, Superintendent of John Maher Builders,
5 Inc. and Tony Maher, COO of John Maher Builders, Inc., both stated that the “utility penetrations” had
6 been foam sealed with the Appellants Real Estate Agent Erin Krueger present. Eddie Savage stated that
7 he had performed the sealing of the “utility penetrations” himself and Tony Maher stated that he had
8 verified that the “utility penetrations” had been sealed. They both stated that every item on the “Punch
9 List” and their “Home Inspection Report” was completed with the exception of the gas line “tap”
10 extension for the back patio. That would be installed with five business days after close of the property.
11 (See Exhibit - SIMP-00A7 - Punch List - Builder Confirms Foam Sealed Crawlspace 7-17-17).
12 54) Due to worsening conditions in the property, and due to the requirements by JMB that the
13 Simpkins hire Carpet and Mold Inspections and prove that there were issues before the Builder would
14 perform warranty work, Appellants sought out experts to help determine the issues in the property. In
15 January of 2018, Middle Tennessee Mold Remediation discovered that “none” of the “Utility
16 Penetrations” were sealed as allegedly falsely stated by JMB Management, Eddie Savage, Superintendent
17 of JMB, and Tony Maher, COO of JMB, on August 3, 2017. This alleged “fraudulent concealment and
18 fraudulent misrepresentation” was without question or doubt “intentional concealment” and was
19 egregiously reckless in nature.
20 55) The January 2018 discovery proved that JMB knew they had lied but would not admit in
21 August 2017 to leaving the crawlspace unsealed from the interior and knew that this was one of the
22 primary causations for the Simpkins reporting indoor air quality concerns. The Builder/Appellees
23 knowingly continued their deception, despite these reports from the Homeowners. JMB’s continued
24 fraudulent misrepresentation shows the Builder acted with malice and reckless intentions because JMB
25 knew that by allowing the penetrations to remain open indefinitely, they were “allowing further damage
26 to come to the property and to the Simpkins”.
27 56) But the Court refused to acknowledge and rule on the “fraudulent concealment and
28 fraudulent misrepresentation” in accordance with the Rules of Civil Procedure and by the Law. If the
29 Court had appropriately ruled by law, the Court would have eliminated the Defendants/Appellees alleged
30 fraudulent use of the statute of limitations as a defense. The claim by the Appellees was a blatant false
31 claim by having clear and distinct proof and knowledge of the Builders fraudulent and negligent actions
32 as well as by the additional fact that the Court assisted the Appellees in ensuring the demise of the

Page 23 of 62
 1 Appellants case. This is alleged wanton and malicious acts by the Appellees and the Court. The Court
2 was not only allegedly complicit with the actions of the Appellees, but the Court was allegedly clearly
3 prejudiced against the Appellants.
4 57) The discovery of the “utility penetrations” having not been sealed proves both alleged
5 fraudulent misrepresentation and fraudulent concealment of a material fact prior to closing, which was
6 concealed again at the warranty meeting on August 29th, when the Appellees could have stated then that
7 the “utility penetrations” had not been sealed then addressed the issue. By JMB not disclosing the fact
8 that they had not sealed the utility penetrations, would be the second occurrence of concealment by the
9 Appellees with the Court being aware of this knowledge but not enforcing the rules or laws against the
10 Appellees. But the Appellees never corrected the fraud. The Appellees again had another opportunity to
11 correct the concealment of the “unsealed” utility penetrations, when the Appellees received inspection
12 reports confirming the material facts and the Builder did nothing concerning the dangerous findings of
13 unsealed utility penetrations making this an unquestionable intentional and malicious act by the
14 Appellees. The Court refused to rule on or even acknowledge the discovery of the unsealed penetrations,
15 which was a violation of the Appellant’s civil, evidentiary, and constitutional rights to due process of law
16 and the Court acting outside the judicial bounds of the Court. The discovery in January of 2018 tolled the
17 statute of limitations for Tenn. Code Ann. § 28-3-105. “Under Tennessee law, "[i]t is well recognized
18 that fraudulent concealment prevents *873 the running of the statute of limitations and that the statute
19 begins to run from the time of discovery of the fraud." (See Howell v. Davis, 43 Tenn. App. 52, 60, 306
20 S.W.2d 9, 12-13 (1957).
21 58) When the Appellants argued the Statute of Limitations by the date of discovery of fraud,
22 which in this instance pertained to the “fraudulent concealment”, the Statute of Limitations was tolled
23 when the Appellants received their report from MTMR on January 31st, 2018. The Statute of limitations
24 would have started accruing upon the “discovery of the fraud with the utility penetrations” and run from
25 that point forward and expiring on January 31st, 2021. The Appellants filed their Complaint on December
26 30th, 2020. The Appellants were within the Statue of Limitations on the date of that discovery alone, and
27 therefore are entitled to an immediate ruling for Final Judgement with “Prejudice” for relief and full
28 damages. This is only one of the points which proved to the Court that the Appellants had not exceeded
29 the Statute of Limitations by the “discovery dates”.
30 59) SE&I Engineering’s Report from April 2018 documented several mandatory IRC 2012
31 and IECC 2009 building code violations and omissions (fraudulent misrepresentation) and even issues
32 not corrected from the Buyer’s Home Inspection report which JMB stated as corrected (fraudulent

Page 24 of 62
 1 misrepresentation). These discoveries of fraud run the statute of limitations into April 2021. And A-1
2 Waterproofing’s first Report issued in July 2018, which documented even more mandatory IRC 2012
3 and IECC 2009 building codes violations and omissions, runs the statute for those discoveries of frauds
4 into July 2021. The Appellants were well within the Statute of Limitations based on the “date of
5 discovery of the fraud” for MTMR’s Report, SE&I Engineering’s Report, and all of A-1 Waterproofing’s
6 Reports, and therefore the Appellants are entitled to an immediate ruling for Final Judgement with
7 “Prejudice” for relief and full damages.
8 60) The Statute of Limitations was also argued by the Appellants using Tenn. Code Ann. §
9 66-36-103, which John Maher Builders Inc. instructed the Homeowners to use to notify JMB if the
10 Homeowners had further issues to report. This statute provided the Appellants an additional six month
11 period (180 days) based on the date of the Homeowners notification to the Builder of material defects, in
12 which JMB did not respond to repair or pay restitution for those material defects, per the requirements of
13 that statute. In the Simpkins case, JMB received three Notifications, or “demand letters” to buy back the
14 property based on gross fraud / fraudulent misrepresentation of the Property as demonstrated by all the
15 issues shown in the inspection reports obtained as of July 2018. The first notification was sent during the
16 warranty period on July 23, 2018. Using this first notification date, and then adding 6 months, placed the
17 start of the running of the statute of limitations on or about January 23, 2019, which would expire three
18 years later on or about January 23, 2022. If the third and final notification date is used, which was October
19 19, 2018, then by adding 6 months (180 days), the statute of limitations would begin on April 18, 2019,
20 and expire on April 19, 2022.
21 61) Whether the Court were to look at the dates of discovery of frauds documented in the
22 various inspection reports, or if the Court were to use the date of notification of material defects to the
23 Builder as the starting date, either way, there was never any question that the Appellants were well within
24 the statute of limitations for “frauds” or “fraudulent concealment” or “fraudulent misrepresentation”
25 against the Appellees. The alleged fraud committed by the Appellees and the Court for fraud on the Court
26 is rampant in their numerous false arguments claiming that the Appellants had exceeded the statute of
27 limitations, especially when the Appellants proved to the Court their claims were timely. The entire
28 alleged charade by the Appellees allegedly working in concert with the Court committed one of the most
29 alleged fraudulent schemes to defraud the rights of the Appellants in such an alleged devious and
30 malicious manner as to boggle the mind and all of this perpetrated in a Court of Law.
31
32 Second Issue – Abandonment - “Breach of Contract”

Page 25 of 62
 1 62) The abandonment of the Appellants is also a breach of contract, and a breach of warranty
2 and the breach of contract falls under Tenn. Code Ann. § 28-3-109(a)(3), and the Court refused to rule
3 on the abandonment as a breach of contract and actually stated that abandonment is not a cause for breach
4 of contract or any other issue and chose to ignore facts of the case. The Appellants have six (6) years to
5 file a claim for breach of contract. The Appellants are entitled to relief and an award of damages. The
6 Court violated the Appellants civil rights, evidentiary rights and constitutional rights to “Due Process of
7 Law” and are therefore entitled to relief and an award for full damages for all claims, incidental and
8 consequential damages, treble damages, punitive and emotional distress damages to include pre and post
9 interest for all awards and any and all other such relief the Appellate Court may deem right and necessary
10 for the egregious and malicious acts by the Defendants/Appellees, the Opposing Counsel and the
11 Chancery Court’s Officer of the Court.
12
13 (“Based upon our review of the record, we find no merit in the Jones brothers’ argument that the
14 evidence preponderates against the conclusion that they, not the Andersons, breached the contract
15 by abandonment”). Catherine Smith Bowling, et al. v. Todd Jones, et al. - E2007-01581-COA-
16 R3-CV – (Filed May 16, 2008).
17 (“The abandonment of a contract gives rise to a cause of action for breach”. Gillespie v.
18 Broadway Nat’l. Bank, et al., 68 S.W.2d 479, 482 (Tenn. 1934)).
19
20 Third Issue – “Breach of Warranty”
21 63) Failure to perform reported warranty issues is a “Breach of Warranty”. The warranty is
22 covered by T.C.A. § 47-2-314 - Implied warranty Merchantability Usage of trade, in which the Appellants
23 have four (4) years to bring a complaint for the failure of JMB to perform any warranty work during the
24 first year warranty period. When the property has numerous issues, which were never addressed or
25 resolved by the Appellees during or after the warranty period and left the property in a state of
26 continuous disrepair, constitutes a failed product and the property’s warranty is extended by statute
27 Tenn. Code Ann. § 47-18-1402 - Warranty Extension Period, until it is repaired. This is covered under
28 Tenn. Code Ann. § 29-28-103 - Limitation of actions Exception.
29 64) But the Court would not allow the Appellants the use of the statute, Tenn. Code Ann. §
30 47-18-1402, that extended the warranty for the Court’s unreasonable and erred conclusion that the statute
31 did not apply and that the Appellants did not provide the Court any authority allowing the use of the
32 statute. After dismissing the complaint, the Court informed the Appellants that it denied the Appellants
33 the use of the statute because the Appellants must prove that a residential property, a home, was

Page 26 of 62
 1 considered a “product”, when a residential property is commonly referred to as a product in the
2 Construction Defects Legal Compendiums. In all the thousands of case laws that this Pro Se Litigant had
3 to read through, not once was any Attorney or other Pro Se Litigant required to prove that a “residential
4 property”, a “house” or “home” was a “Product”. This was pure harassment and extreme prejudice by
5 the Court and the Officer of the Court. Had there been several case precedents for such requirement, then
6 this Pro Se Litigant would have understood. But the prejudice by the Court against the Appellants is so
7 glaring as to astonish the mind.
8 65) Especially for the fact that the Appellants are Pro Se litigants, the Court was not being fair
9 or just when the Court expected the Pro Se Appellants to have performed extraordinary measures at every
10 turn in order to obtain a ruling by the Court for the requested relief. Then once the Appellants met those
11 requirements, the Court did not reverse its stance, void its previous ruling, and make a new ruling on
12 those issues after being provided with the requested information. And the Court never provided any relief
13 even though the Appellants were due the requested relief by law and the statutes. The Appellants had
14 already proven their case issues and the case law authorities provided the precedent that allowed the
15 Appellants to use those authorities with the result that the Appellants won their case through their March
16 15th, 2021 “Amended Emergency Motion” and supporting Memorandum of Law. But the Court allegedly
17 intentionally refused to review or include or rule on that Motion and Memorandum.
18
19 Fourth Issue – Alleged Frauds – Fifty-Eight Code Violations
20 66) The Court refused to rule on numerous alleged frauds by the Builder, such as the proven
21 “Breach of Contract” caused by code violations, in fact fifty-eight (58) documented code violations . The
22 Courts refusal to rule on any matters of fraud was a violation of the rules of civil procedure, a violation
23 of the rules of evidence and a violation of the Appellant’s rights to due process. The Appellants also
24 presented to the Court that the Appellees “abandoned” the Appellants which was also a “Breach of
25 Contract”. Abandonment “is” a “breach of contract” (See, Catherine Smith Bowling, et al. v. Todd Jones, et
26 al. - E2007-01581-COA-R3-CV – (Filed May 16, 2008) and ”, and Gillespie v. Broadway Nat’l. Bank, et al., 68
27 S.W.2d 479, 482 (Tenn. 1934)). Breach of Contract falls under Tenn. Code Ann. § 28-3-109(a)(3). But the
28 Court refused to rule on the abandonment for breach of contract which is a violation of the Appellants
29 civil, evidentiary, and constitutional rights.
30 67) The alleged fraud on the Court was committed when the opposing party misrepresented
31 and misconstrued the full intent and meaning of Tenn. Code Ann. § 28-3-105, to falsely state that
32 “Plaintiffs” had exceeded the statute of limitations for all thirteen (13) claims under this single statute.

Page 27 of 62
 1 The Court then agreed with the Defendants/Appellees and used Tenn. statute Tenn. Code Ann. § 28-3-
2 105 to put all thirteen of the Appellants claims under that statute then summarily dismissed the entire
3 complaint under the same statute. (Per the “Tennessee Supreme Court”, the “gravamen” of the complaint
4 determines the applicable statute of limitation. When a complaint contains multiple causes of action, a
5 court must determine the gravamen of each claim, not simply the gravamen of the complaint in its entirety,
6 Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006). Also, in the Case of Benz-Elliott v. Barrett
7 Enterprises, LP, et al., No. M2013-00270-SC-R11-CV (Tenn. Sup. Ct., January 23, 2015)). Then the
8 Court allegedly fraudulently knowingly dismissed the complaint on the alleged fraudulent statute of
9 limitations, which the Court in doing so, violated of the Appellants civil, evidentiary, and constitutional
10 rights.
11 68) It was a known fact to both the Opposing Counsel and also the Court, that the “Breach of
12 Contract” and “Breach of Warranty” were both primary in the Appellants Complaint and were both
13 appropriate in the Plaintiff’s case due to the Defendant’s/Appellee’s abandonment of the Appellants
14 during the Warranty period and failure to abide by the law and abide by JMB’s own policies and
15 procedures which required the Homeowner to immediately notify JMB of safety issues that if left
16 unaddressed could cause more damage. The Appellants case was almost exactly the same as the Scott
17 Campbell’s case which the Appellants have already presented to the Court. The Court not only ignored
18 Scott Campbell Case Law but used an extremely inappropriate and irrelevant case law where the Plaintiffs
19 in that case filed their complaint [Five (5) Years past] the Statute of Limitations. That case law is
20 completely incongruous with the Appellants complaint and an embarrassment to the Judicial System for
21 a Court to pull such a stunt. See the appropriate Case Law, “Scott Campbell, Et Al. V. William H. Teague,
22 Et Al. No. W2009-00529-COA-R3-CV (March 31, 2010).” The Campbells had the same issues in their
23 property as the Simpkins/Appellants do in their current property. The Teagues abandoned the Campbells,
24 ignored the Campbells complaints, refused to perform on the warranty, ignored professional third party
25 reports and the numerous code violations, which is how the Mahers/Appellees treated the
26 Simpkins/Appellants. Because of the Teagues ignoring the Campbells, the property became completely
27 damaged and beyond repair.
28 “As the Campbells sought the advice of experts in preparation for trial, it allegedly became clear
29 that the Property could not be repaired in a cost effective manner, and that the house needed to be
30 demolished.” Scott Campbell, Et Al. V. William H. Teague, Et Al. No. W2009-00529-COA-R3-
31 CV (March 31, 2010)
32
33 69) JMB abandoned the Simpkins, refused to perform on the warranty, ignored numerous
34 complaints, ignored the reports of urgent issues affecting the property and the occupants, ignored

Page 28 of 62
 1 professional third party expert reports, and have never attempted to bring the property’s fifty-eight
2 documented code violations into compliance with mandatory building codes. Just like the Campbells “the
3 Simpkins must have the property demolished and rebuilt”. (See below).
4
5 For Subject Property - Lot 225, Address 1375 Round Hill Ln, Spring Hill, TN 37174
6 As stated previously but reiterated for emphasis, based on the current and previous on-site
7 inspections and other reports, the subject real estate property is a “Total/Complete Loss”.
8
9 It is my professional opinion through all of my onsite investigations, that I am able to determine
10 indisputably that the Builder, John Maher Builders, Inc., is the primary responsible party for
11 the demise of this property. The Builder allowed for the material to become infested during
12 construction through negligent building practices that were side-stepped from essential procedures.
13 The property was not constructed in accordance with minimum IRC 2012 and IECC 2009 building
14 codes, nor did it meet the VA’s Minimum Property Requirements, (MPRs), nor did it meet the
15 TVA’s Minimum Standards for Sealing the Property, nor was the property installed with a properly
16 designed and sized HVAC systems and ducting.
17
18 A-1 Waterproofing October 2020 Report – Pg. 19, Para 4
19 Further my report showed evidence through multiple code violations that the property was not sealed
20 property-wide in accordance with required and mandatory IRC 2012 and the IECC 2009 building
21 codes. I provided in my previous report over sixty-five (65) pictures of mold infestation and material
22 damage. The mold is systemic through the property. Over a year ago, I recommended the property
23 be stripped down to the structure to be thoroughly treated, sealed properly from the inside out, and
24 new finished materials be installed. Two years later, the mold cannot be completely remediated, at
25 this time it is my recommendation that the property be torn down and rebuilt.
26
27 Reference Plaintiffs/Appellants July 20th, 2021, Memorandum of Law, Pg. 33, Para 62. Lines 23-24
28 Scott Campbell Case Law: Pg. 2, Para 3 –
29 “As the weeks passed, the Campbells discovered more problems with the Property. One of these
30 problems was a strong stench (both inside and outside the house). Ultimately, the Campbells
31 discovered that the smell inside the house emanated from stagnant water and mold in the crawl
32 space.” Scott Campbell, Et Al. v. William H. Teague, Et Al. No. W2009-00529-COA -R3-CV
33 (March 31, 2010)
34
35 Scott Campbell Case Law: Pg. 16, Para 2
36 “Judge Steven Stafford stated, “Perhaps most egregious is the fact that, despite giving the
37 Campbells a one-year express warranty when they purchased the home, the Teagues repeatedly
38 refused to honor that agreement, even though they knew of the safety concerns and code
39 violations. For example, the Teagues refused to fix a large crack in the front porch concrete, and,
40 in fact, there is some evidence that the Teagues blocked the Campbells’ final walk-through
41 inspection of the porch. In addition, the Teagues ignored the Campbells’ complaints (and Mr.
42 Ferguson’s report) that the flooring system needed repairs, and that there were numerous code
43 violations. The Teagues refused to repair the HVAC system, forcing the Campbells to endure winter
44 temperatures without proper heat. Even though made in writing, and made several times, these
45 requests were systematically ignored by the Teagues.”
46
47 70) The fifty-eight (58) code violations proved that the property had pre-existing material
48 defects, making the property incomplete, and not built in a workmanlike manner which has been

Page 29 of 62
 1 established as a “breach of contract” by the Supreme Court and Appellate Court for years. By the lower
2 Chancery Court allegedly unlawfully dismissing the Appellants entire complaint under Tenn. Code Ann.
3 § 28-3-105 is a violation of the Rules of Civil Procedure, violation of the Supreme Court Ruling for the
4 Two-Step Process and improper use of “Gravamen”, further it was in violation of the Appellants civil
5 rights, evidentiary rights and constitutional rights to “Due Process of Law” and the Appellants are
6 therefore entitled to immediate Final Judgement with “Prejudice” for relief and an award for full damages
7 for all claims, incidental and consequential damages, treble damages, punitive and emotional distress
8 damages to include pre and post interest for all awards and any and all other such relief the Appellate
9 Court may deem right and necessary for the egregious and malicious acts by the Defendants/Appellees,
10 the Opposing Counsel and the Chancery Court.
11 “Recently, in Bowling v. Jones, 300 S.W.3d 288, 291 (Tenn.Ct.App.2008), the Court of
12 Appeals made the following observation regarding the implied duties encompassed in construction
13 contracts:
14
15 Once a builder undertakes a construction contract, the common law imposes upon him or her a
16 duty to perform the work in a workmanlike manner, and there is an implied agreement that the
17 building or work performed will be sufficient for the particular purpose desired or to accomplish
18 a certain result. Thus, failure to perform a building contract in a workmanlike manner
19 constitutes a breach of the contract.”
20
21 “In addition to damages associated with diminution in value and cost of repairs, courts may also
22 award all damages that are the normal and foreseeable result of a breach of contract. Holladay v.
23 Speed, 208 S.W.3d 408, 415 (Tenn. Ct. App. 2005) (citing Morrow v. Jones, 166 S.W.3d 254
24 (Tenn. Ct. App. 2004)). These types of damages include reasonably foreseeable consequential and
25 incidental damages.” T.C.A. §47-2-715. Buyer's Incidental and Consequential Damages.”
26
27 Fifth Issue – Warranty Extension Denied
28 71) The Court allegedly prejudicially denied the Appellants the use of Tenn. Code Ann. § 47-
29 18-1402, for the Warranty Extension Period when it was proven that the Simpkins property defects and
30 disrepairs, caused by JMB’s unworkmanlike construction, impeded the Property’s intended function as a
31 safe and habitable residence. And by the JMB not performing on the Warranty and intentionally
32 abandoning the property in a state of defect and disrepair, that act automatically extended the Warranty.
33 By the letter of the law, the Simpkins Property is still under warranty until the repairs are made. The
34 Court denied the Simpkins the extension of the warranty based on the Courts alleged false claim that
35 Tenn. Code Ann. § 47-18-1402 was not used for a home or a residential property because a property was
36 not classified as a “product” and that the Appellants also did not provide the Court with any authority to
37 rule on the Statute. The Court knowingly and falsely presented that a residential property is not considered
38 a “product” when the Court already knew that one of the most commonly cited construction defect case

Page 30 of 62
 1 laws calls a “house” a “Product”. Dixon v. Mountain City Constr. Co., 632 S.W.2d 538, 541 (Tenn.
2 1982).
3 “In accord with Restatement § 402A and the UCC implied warranties set forth in T.C.A. § 47-2-
4 314. The Court of Appeals held that the UCC implied warranty did not apply but that where a
5 property owner contracted for a house to be built upon his lot the structure was a "product" within
6 the concept of strict liability in tort as stated in Restatement § 402A. The Court of Appeals took
7 the additional step of adopting an implied warranty that the house would be built, "in a
8 workmanlike manner and suitable for habitation."
9
10 Under Tennessee Code Title 29. Remedies and Special Proceedings § 29-28-102
11
12 (5) “Product” means any tangible “object” or “goods” produced;
13
14 (6) “Product liability action” for purposes of this chapter includes all actions brought for or on
15 account of personal injury, death or property damage caused by or resulting from the manufacture,
16 construction, design, formula, preparation, assembly, testing, service, warning, instruction,
17 marketing, packaging, or labeling of any product. “Product liability action” includes, but is not
18 limited to, all actions based upon the following theories:  strict liability in tort;  negligence;  breach
19 of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct,
20 whether negligent, or innocent;  misrepresentation, concealment, or nondisclosure, whether
21 negligent, or innocent;  or under any other substantive legal theory in tort or contract whatsoever;
22
23 (8) “Unreasonably dangerous” means that a product is dangerous to an extent beyond that which
24 would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
25 common to the community as to its characteristics, or that the product because of its dangerous
26 condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming
27 that the manufacturer or seller knew of its dangerous condition.
28
29 Sixth Issue – Court Required Appellants to Prove that a Residential Property is a “Product”
30 72) The Court required the Pro Se Litigants to go through extreme measures to prove that a
31 Residential Property, “House” or “Home” is a “product”. A “Product” means any tangible “object” or
32 “goods” produced, under Tenn. Statute, Tenn. Code Ann. § 29-28-102(5). The Court was already aware
33 that the Court of Appeals had designated a Residential Property as a “Product” in Restatement 402A in
34 1982. This shows that the Court has committed alleged fraud on the Court by denying the Appellants a
35 ruling on Tenn. Code Ann. § 47-18-1402 which proves that the Appellants property is still under warranty
36 by that ruling and the “Statute of Limitations” is a “moot” point. This also proves that the Court allegedly
37 has extreme bias by not holding the Builder accountable for warranty abandonment and has extreme
38 prejudice towards the Appellants to deny them of their Constitutional Rights to “Due Process of Law”.
39 This was a blatant violation of the Appellants rights and the Appellants request that the Appellate Court
40 make a ruling for a Final Judgement with “Prejudice” for the Appellants.
41 73) The Builder has never returned to the property after August of 2017, to investigate,
42 address, or resolve any of the documented and reported construction defects, or to replace the defective

Page 31 of 62
 1 or damaged materials, or to replace materials or equipment whose product warranties were invalidated
2 by the Builder’s negligence during construction, such as the carpet, HVAC System, and window
3 warranties. The Builder has not attempted to address or resolve their Breach of Contract, Breach of
4 Warranty, and the breach of HUD’s Warranty of Completion that JMB signed allegedly “falsely”
5 claiming the property was complete and would be warrantied, nor have they attempted to resolve any of
6 the other claims of alleged breach, fraud, and negligence.
7
8 Seventh Issue – Court Denies Plaintiffs/Appellants “Unreasonably Dangerous” Statute -
9 Tenn. Code Ann. § 29-28-103
10 74) The Court was made aware in the Plaintiff’s/Appellant’s Complaint on Pg. 26, Para 1, that
11 Tony Maher, COO of John Maher Builders, Inc., had admitted to Detective Robert Carden of the Spring
12 Hill Police Department that he had sold the property with mold. (See 16 Exhibit SIMP-00A88 –
13 Transcripts of Audio Recording with Det. Carden SHPD). (See Exhibit - SIMP-00A85 – Det Carden
14 Audio Recording TM Admits Mold). Mold as everyone knows in the building industry damages materials.
15 And if it can cause damage to building materials some of which are constructed from harsh chemicals,
16 then the damage to the soft tissue of the human body must be enormous especially for long term exposure.
17 As Mr. James Gafford presented in his report, (See Exhibits – (SIMP-00A15 - A-1 WP Investigative
18 Property & Mold Inspection Report), Page 28-31, CDC, EPA, FEMA, WHO: Health Effects of Mold
19 Exposure), and (Exhibit - SIMP-00A91 - A-1 Waterproofing Suppl Invest Inspect by Inspector James
20 Gafford 10-30-20) Pgs., 7-10 and 22-24.
21
22 As Tenn. Code Ann. § 29-28-103 states,
23 (a) Any action against a manufacturer or seller of a product for injury to person or property
24 caused by its defective or unreasonably dangerous condition must be brought within the
25 period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any
26 exceptions to these provisions, it must be brought within six (6) years of the date of injury, in
27 any event, the action must be brought within ten (10) years from the date on which the
28 product was first purchased for use or consumption, or within one (1) year after the
29 expiration of the anticipated life of the product, whichever is the shorter, except in the case
30 of injury to minors whose action must be brought within a period of one (1) year after
31 attaining the age of majority, whichever occurs sooner.
32
33 Eighth Issue – “Date of Service”
34 74) To expand on a particular act of fraud on the Court, Attorney Brewer presented to the
35 Court that the “Date of Service” was January 27th, 2021, which the attorney knew to be incorrect, false.
36 As a fifteen year veteran in the legal system, he would know Rule of Civil Procedure for 4.04(10) and

Page 32 of 62
 1 (11), which the Plaintiffs delineated clearly for the Court and Attorney Brewer that the actual Date of
2 Service was on January 11th, 2021, via “Certified Mail” and was further reiterated and proven to the
3 opposing counsel and the Court through the Plaintiff’s Motion filed on February 22, 2021. (See Exhibit J
4 - Motion for Request to Reschedule Hearing 2-22-2021). The Motion contained the images of the Proof
5 of Service via Certified Mail which copies of the Certified Mail were provided to the Court Clerk’s Office
6 on the same day as the date of mailing, January 11th, 2021. The “Affidavits for Proof of Service” were
7 filed on January 27th, 2021, because the Plaintiffs were waiting on confirmation with USPS notice of the
8 second service of the individual party, Tony Maher by mail, at which point another service was attempted
9 by the Plaintiff in-person on January 20, 2021, as an extra measure. Tony Maher aggressively refused
10 service, which was witnessed by the Spring Hill Police Seargent whose presence was requested by the
11 Plaintiffs for a civil stand-by. But most important, as the rule states, 4.04(11) “Service is complete upon
12 its mailing”.
13 From Plaintiff’s February 22nd, 2021, Motion, Pg. 5 Para 1, Lines 4-10:
14 The Plaintiff’s then made personal attempts to serve Tony Maher on 1-20-21. Sgt. Knapp of the Spring
15 Hill Police Department, (SHPD) was a witness for the second “Refusal of Service” by Tony Maher on the
16 same day which the Plaintiffs have thoroughly explained and detailed with the specific dates in the previous
17 Emergency Motion. The Plaintiffs went to the effort to notify the Court of the abuse by Tony Maher who
18 used a vehicle in an aggressive manner towards the Plaintiff forcing the Plaintiff to jump to the side of the
19 SHPD Police Vehicle where Sgt. Knapp was sitting in his vehicle and witnessed the entire event when the
20 Plaintiff attempted service.
21
22 75) This “Date of Service” error, which the Court has let stand, though seemingly small, had
23 a tremendous impact as to the adjudication of the case because by changing the “Date of Service” the
24 Court allegedly removed the basis for a potential “Default Judgement” at that time. In the February 23rd,
25 2021, hearing which is captured in and Audio recording provided to the Appellate Court, the Presiding
26 Judge brought up the issue of the timelines for responses by each party and for the hearing and stated that
27 according to the “Local Rules” of the Chancery Court, there was a “15 day” requirement for responses to
28 motions and pleadings, that the Rule of Civ. Proc. 12.01 did not apply, and that “there was no thirty (30)
29 day obligation”. Therefore, if what the Presiding Judge stated is correct, then the Plaintiffs/Appellants
30 were entitled to a Default Judgement upon there being no response from the Defendants by January 26,
31 2021, which was fifteen (15) days after the Date of Service on January 11, 2021. The Defendants Counsel
32 did not file a notice of appearance or response until February 8, 2021. The Court never clarified or offered
33 this judgment to the Appellants who repeatedly requested the Court clarify or correct this issue in the
34 following motions:
35 Appellants notified the Court of the “Date of Service” error with a request for correction in the
36 following Motions with no response from the Court concerning the matter.

Page 33 of 62
 1
2 a) February 22nd, 2021, Motion titled, “Emergency Motion to reschedule hearing for
3 Summary Judgement”. Pages 3 and 5.
4 b) March 29th, 2021, Motion titled, “Motion For Relief Of Judgement Or Orders And Final
5 Judgement Against Defendants”, Pages 3, and 4.
6 c) April 20th, 2021, Motion titled, “Notice Of Motion, And Motion To Vacate Void
7 Judgement For Fraud On The Court And Deprivation Of Plaintiffs’ Constitutional Rights
8 Plaintiffs Motion For Default Or Final Judgement With Prejudice”, Pages, 8, 9, 16, and
9 32.
10 d) May 13th, 2021, Motion titled, “Motion To Alter Or Amend Final Judgement Against
11 Plaintiffs In Violation Of Plaintiffs Constitutional Rights”, Page 2.
12
13 Nineth Issue – Court Claims Did Not Receive a Bench Copy of the March 15th, 2021,
14 Amended Emergency Motion and Memorandum of Law
15 76) The alleged fraud behind the “Motion to Dismiss” by the Defendant’s/Appellee’s Counsel
16 made a singular claim which was an alleged “Frivolous” “Fraudulent” Motion committing “Fraud on the
17 Court” with additional numerous incidences of the alleged frauds on the Court in which the Appellants
18 will prove in this Motion and the Memorandum of Law. Each of the thirteen (13) claims that the
19 Appellants presented in their “Complaint” were allegedly unlawfully denied and these alleged deliberate
20 instrumental acts constitute fraud on the court and are in violation of the law. The Court violated the
21 Appellants Civil Rights, Evidentiary Rights and Constitutional Rights to “Due Process of Law” and are
22 therefore entitled to relief and an award for full damages for all claims, incidental and consequential
23 damages, treble damages, punitive and emotional distress damages to include pre and post interest for all
24 awards and any and all other such relief the Appellate Court may deem right and necessary for the
25 egregious and malicious acts by the Defendants/Appellees, the Opposing Counsel and the Chancery
26 Court.
27 77) “Whenever any officer of the court commits fraud during a proceeding in the court, he/she
28 is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985),
29 the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not
30 fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or
31 a member is corrupted or influenced, or influence is attempted or where the judge has not performed his
32 judicial function --- thus where the impartial functions of the court have been directly corrupted." The
33 Court violated the Appellants civil, evidential, and constitutional rights to “Due Process of Law” and are
34 therefore entitled to damages for all claims, incidental and consequential damages, treble damages,
35 punitive and emotional distress damages to include pre and post interest for all awards and any and all

Page 34 of 62
 1 other such awards the Appellate Court may deem right and necessary for the egregious and malicious
2 acts by the Defendants/Appellees, the Opposing Counsel, and the Chancery Court.

3 Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that
4 species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by
5 officers of the court so that the judicial machinery cannot perform in the usual manner its impartial
6 task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968);
7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated, "a decision
8 produced by fraud upon the court is not in essence a decision at all, and never becomes final."

9 When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he
10 exercises no discretion or individual judgment; he acts no longer as a judge, but as a " minister"
11 of his own prejudices. [386 U.S. 547, 568].

12 A judge is liable for injury caused by a ministerial act; to have immunity the judge must be
13 performing a judicial function. See, e. g., Ex parte’ Virginia, 100 U.S. 339 ; 2 Harper & James,
14 The Law of Torts 1642-1643 (1956).

15 "Under “Title 18, U.S.C., Section 242, Deprivation of Rights Under Color of Law”, Every person
16 who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory
17 or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or
18 other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
19 immunities secured by the Constitution and laws, shall be liable to the party injured in an action
20 at law, suit in equity, or other proper proceeding for redress.

21 Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal
22 and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v.
23 O'Grady, 888 F.2d 1189 (7th Cir. 1989). Further, the judge has a legal duty to disqualify himself
24 even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals
25 further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua
26 sponte, even if no motion or affidavit is filed." Balistrieri, at 1202.

27 Tenth Issue – Court Allegedly Prejudicially Denies Appellants Use of Tenn. Code Ann. § 66-
28 36-103
29 78) Appellants were not allowed to use Tenn. Code Ann. § 66-36-103: Procedures and
30 requirements for notification and remedying construction defects due to it being stated by the Defense
31 and the Court that it was only use for commercial applications. By incorrectly denying the Appellants the
32 use of this statute, the Appellants were denied a (180) day extension on the “statute of limitations” which
33 deprived the Appellants of their rights. This was allegedly blatantly incorrect and knowing by the Court
34 and the opposing counsel which the Appellants had explained the reasons why they were entitled to the
35 use of Tenn. Code Ann. § 66-36-103, but regardless the Appellant’s were wrongfully denied the use of
36 Tenn. Code Ann. § 66-36-103 by the Court. The Court did not require the Defendants/Appellees to
37 provide any supporting authorities, evidence, statement of facts or affidavits and the Court just took the

Page 35 of 62
 1 word of the defendants/appellees as true, when in fact, Counsel for the Appellees’ claims were allegedly
2 fraudulent. On page 2, Para 3 of the Appellants March 29th, 2021, Motion, the Appellants presented once
3 again to the Court that by Tenn. Code Ann. § 66-36-103, they were entitled to an additional (180) days
4 tolling the statute of limitations. The Appellee’s Counsel allegedly deliberately filed a false claim to the
5 Court that the Statue § 66-36-103 was only used for “Commercial Defect Claims” creating subterfuge
6 based on the statute’s ‘title’ but knowing at the same time that the Appeals court had established its use
7 for residential claims and knowing his Client instructed the Simpkins to follow this law. There is no
8 excuse for a seasoned fifteen year experienced attorney to make such an egregious false claim that the
9 Appellants were not entitled to use that law especially when the Builder’s Customer Support instructed
10 them to use that law. The Court agreed with the Appellee’s Counsel and therefore was complicit with
11 further fraud on the Court. Under the case law McClain v. Kimbrough Constr. Co., Inc., 806 S.W.2d
12 194, 198 (Tenn. Ct. App. 1990), “The rule requiring giving notice and an opportunity to cure has also
13 been extended to cases involving residential construction.” The Court violated the Appellants Civil,
14 Evidential and Constitutional Rights to “Due Process of Law” and are therefore entitled to damages for
15 all claims, incidental and consequential damages, treble damages, punitive and emotional distress
16 damages to include pre and post interest for all awards and any and all other such awards the Appellate
17 Court may deem right and necessary for the egregious and malicious acts by the Defendants/Appellees,
18 the Opposing Counsel and the Chancery Court’s Officer of the Court.
19 Aside from the statutory notice and cure provisions of Tenn. Code Ann. § 66-36-101 et seq.,
20 Tennessee common law imposes a general duty to give notice of a construction defect and to allow
21 the defaulting party to repair the defective work, to reduce the damages, to avoid additional
22 defective performance and to promote settlements of disputes. McClain v. Kimbrough Constr.
23 Co., Inc., 806 S.W.2d 194, 198 (Tenn. Ct. App. 1990). “In McClain, the Court imposed upon a
24 contractor a duty to give its subcontractor notice and an opportunity to cure alleged defects prior
25 to terminating a contract for a commercial construction project. Id. at 198-99.
26
27 “The rule requiring giving notice and an opportunity to cure has also been extended to cases
28 involving residential construction.”
29
30 E.g., Greeter Const. Co. v. Tice, 11 S.W.3d 907, 910-11 (Tenn. Ct. App. 1999);
31 Lavy v. Carroll, No. M2006-00805-COAR3-CV, 2007 Tenn. App. LEXIS 809, at **9-10 (Tenn.
32 Ct. App. Dec. 26, 2007), and,
33 Custom Built Homes by Ed Harris v. McNamara, No. M2004-02703-COA-R3-CV, 2006 Tenn.
34 App. LEXIS 781, at **14-15 (Tenn. Ct. App. Dec. 11, 2006), no appl. perm. appeal filed.”
35
36 79) Therefore, as the Appellants have stated several times before, the Appellants are entitled
37 to use Tenn. Code Ann. § 66-36-103(1) which provided the Appellants an additional 180 days or six (6)
38 months additional time to toll that statute of limitations. Adding six (6) months from the

Page 36 of 62
 1 Plaintiff’s/Appellant’s Demand Letter Notice to JMB in October of 2018, extends the statute of
2 limitations to April 4th, 2019, and then by the statute’s three year statute of limitations puts the statute of
3 limitations to April of 2022. The Appellants filed their complaint on December 30th, 2020. Please see full
4 explanation in Appellant’s Memorandum of Law on Pgs. 44-47.
5
6 Eleventh Issue - Monetary Relief Immediate Demand
7 80) JMB, John Maher and Tony Maher are all liable for monetary relief to the Appellants. An
8 individual defendant is personally liable for monetary relief if he "had knowledge that [the company JMB
9 or one of its agents] engaged in dishonest or fraudulent conduct, that the misrepresentations were the type
10 which a reasonable and prudent person would rely, and that consumer injury resulted."73 Publ 'g
11 Clearing House, Inc., 104 F.3d at 1170. In this instant case, John and Tony Maher personally knew
12 about unlawful business activities because they intentionally concealed numerous code violations
13 knowing the damage they would cause but went ahead with the acts regardless of the impact against the
14 Appellants. Additionally, John and Tony Maher knew of the financial gain of their alleged illegal
15 practices because they received full payment for the property with the knowledge that it was not complete
16 and as a result of those practices. Therefore, JMB, John Maher and Tony Maher are liable for
17 immediate monetary relief to the Appellants. The Appellants request the Court if they make a “Final
18 Judgement” ruling with “Prejudice” that the Appellees are required to pay within 24 hours no less than
19 $2,000,000 via a wire transfer or ACH transfer to the Appellants Bank Account so that the Appellants
20 can get their affairs in order to move into a new healthy property immediately and stop the Foreclosure
21 process currently underway. Further the Appellants request that the Court Order the remainder of the
22 award to be paid no later than five (5) calendar days from the date of the ruling and any failure to pay
23 within that timeframe would result in the immediate incarceration of the aforementioned parties.
24 81) Had the Court acknowledged and ruled on the fraudulent concealment in accordance with
25 the Rules of Civil Procedure and by the Law, this would have eliminated Defendants/Appellees use of
26 the statute of limitations as a defense. The discovery of the “utility penetrations” having not been sealed
27 proves both alleged fraudulent misrepresentation of a material fact prior to closing, then at the warranty
28 meeting, and then when JMB received inspection reports confirming the material facts and the Builder
29 did nothing concerning the dangerous findings of unsealed utility penetrations. The Court refused to rule
30 on or even acknowledge the discovery of the unsealed penetrations, which tolled the statute of limitations
31 for Tenn. Code Ann. § 28-3-105. Also, important to note is that Tenn. Code Ann. § 28-3-105 was not the
32 only statute applicable to the Simpkins case, but the Court singularly focused on this statute and made

Page 37 of 62
 1 the alleged false claim that only this statute applied which is also fraud on the court. “Under Tennessee
2 law, "[i]t is well recognized that fraudulent concealment prevents *873 the running of the statute of
3 limitations and that the statute begins to run from the time of discovery of the fraud." (See Howell v.
4 Davis, Tenn. App. 52, 60, 306 S.W.2d 9, 12-13 (1957).
5
6 (Stacks v. Saunders , 812 S.W.2d 587 (Tenn. Ct. App. 1990)), “The basic elements for a fraud action
7 are: an intentional misrepresentation with regard to a material fact.”) “Moreover, a party is liable to the
8 same extent for concealing a material fact as a party is liable for intentional misrepresentation.” (Patel
9 v. Bayliff, 121 S.W.3d 347, 352-53 (Tenn. Ct. App. 2003)) (quoting Macon Cty. Livestock Mkt. Inc. v.
10 Ky. State Bank, Inc., 724 S.W.2d 343, 349 (Tenn. Ct. App. 1986)).
11
12 82) In addition to refusing to rule on alleged frauds by the Builder, the Court was also
13 presented with allegations of fraud on the Court, and the Court would neither address nor rule on the
14 allegations. Refusing to rule on alleged frauds is an “intentional” violation of the judicial process, in
15 violation of the Rules of Civil Procedure, in violation of the Appellants Constitutional Rights, and in
16 violation of the Constitution and an allegedly treasonous act against the United States Constitution.
17
18 Definition: Intrinsic fraud occurs “within the subject matter of the litigation,” and it includes
19 such things as falsified evidence, forged documents, or perjured testimony. Whitaker, 32 S.W.3d
20 at 230.
21
22 Definition: Extrinsic fraud…“involves deception as to matters not at issue in the case which
23 prevented the defrauded party from receiving a fair hearing.” Nobes v. Earhart, 769 S.W.2d 868,
24 874 (Tenn. Ct. App.1988).
25
26 “[A] trial court will be found to have ‘abused its discretion’ only when it applies an incorrect legal
27 standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment
28 of the evidence, or employs reasoning that causes an injustice to the complaining party.” In re
29 Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005).
30
31 “Second, a judge is not immune for actions, though judicial in nature, taken in the complete
32 absence of all jurisdiction.[29] Mireles v. Waco 502 US 9, 116 L Ed 2d 9, 14, 112 S Ct 286 (US
33 1991)
34
35 Should a judge not disqualify himself, then the judge is in violation of the Due Process Clause of
36 the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a
37 tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.").
38
39 Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement,
40 only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
41 108 S. Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance);
42 United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985)
43
44 An abuse of discretion is found in the following circumstances: a trial court has applied an
45 incorrect legal standard or reached a decision which is against logic or reasoning that caused an

Page 38 of 62
 1 injustice to the party complaining. Henry v. Goins, 104 S. W. 3d at 479 (citing State v. Stevens,
2 78 S. W. 3d 817, 832 (Tenn. 2002) (quotations and additional citations omitted)).
3
4 “Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court
5 is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but
6 simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them.
7 They constitute no justification; and all persons concerned in executing such judgments or
8 sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328,
9 340 (1828) Elliot v. Piersol.
10
11 83) The Builder requested the Appellants use Tenn. Code Ann. § 66-36-103: Procedures and
12 requirements for notification and remedying construction defects.), for which the Simpkins followed both
13 the legal notice requirements specified by JMB, and JMB’s policies and procedures requiring the
14 homeowner report hazardous issues immediately. The Simpkins followed these to the letter of the law
15 and abided by the Rules of Civil Procedure and the State Statutes in order to comply with all requirements
16 of the Builder to ensure that the Appellants would receive proper service while under warranty for the
17 serious issues that developed in the property.
18 84) On page 2, Para 3 of the Appellants March 29th, 2021, Motion, the Appellants presented
19 once again to the Court that by Tenn. Code Ann. § 66-36-103, they were entitled to an additional (180)
20 days tolling the statute of limitations. The Appellee’s Counsel allegedly deliberately filed a false claim
21 to the Court that the Statue § 66-36-103 was only used for “Commercial Defect Claims” creating
22 subterfuge based on the statute’s ‘title’ knowing the Appeals court has established its use for residential
23 claims and knowing his Client instructed the Simpkins to follow this law. The statute clearly outlines
24 steps for proper “Notification to the Builder”, which JMB/Appellees had instructed the Appellants at the
25 end of August 2017 to use Tenn. Code Ann. § 66-36-103 to inform them of any further issues with the
26 property. Further the Appellee’s Counsel provided no other statutes or authorities nor any evidence nor
27 affidavits from the Defendants or other parties to back his false claim creating alleged intentional fraud
28 on the court and the Court went along with the alleged fraud on the Court. Even after the Appellants
29 notified the Court of the fraud on the Court, the Court failed to sanction the Appellees for. As a result of
30 the Appellees alleged false statements and misrepresentation of the law, Tenn. Code Ann. § 66-36-103,
31 and of the Plaintiff’s case facts, the Court would allegedly fraudulently not allow the Appellants the use
32 of the Statute Tenn. Code Ann. § 66-36-103. See below the Tenn. Court of Appeals authorities that extend
33 Tenn. Code Ann. § 66-36-103 for use in residential construction.
34 In the Tennessee 2020 Construction Compendium, on Pg. 10, Paras 4 and 5:
35
36 Aside from the statutory notice and cure provisions of Tenn. Code Ann. § 66-36-101 et seq.,
37 Tennessee common law imposes a general duty to give notice of a construction defect and to allow

Page 39 of 62
 1 the defaulting party to repair the defective work, to reduce the damages, to avoid additional
2 defective performance and to promote settlements of disputes. McClain v. Kimbrough Constr.
3 Co., Inc., 806 S.W.2d 194, 198 (Tenn. Ct. App. 1990).
4
5 “In McClain, the Court imposed upon a contractor a duty to give its subcontractor notice and an
6 opportunity to cure alleged defects prior to terminating a contract for a commercial construction
7 project. Id. at 198-99.
8
9 “The rule requiring giving notice and an opportunity to cure has also been extended to cases
10 involving residential construction.”
11
12 E.g., Greeter Const. Co. v. Tice, 11 S.W.3d 907, 910-11 (Tenn. Ct. App. 1999);
13 Lavy v. Carroll, No. M2006-00805-COAR3-CV, 2007 Tenn. App. LEXIS 809, at **9-10 (Tenn.
14 Ct. App. Dec. 26, 2007), and,
15 Custom Built Homes by Ed Harris v. McNamara, No. M2004-02703-COA-R3-CV, 2006 Tenn.
16 App. LEXIS 781, at **14-15 (Tenn. Ct. App. Dec. 11, 2006), no appl. perm. appeal filed.”
17
18 85) The Builder, JMB et. al. cannot make any excuse, cannot defend their actions for the
19 abandonment and stonewalling of the Simpkins, cannot justify refusal to perform under the contract or
20 perform under the warranty contract when the Simpkins complied with their requests but still forced the
21 Simpkins to go through “extraordinary” and unnecessary steps in order to receive warranty support. Then,
22 after the Appellants performed the required tasks by JMB, the Appellants still did not receive the warranty
23 support after meeting all the requirements set forth by JMB. JMB is at fault, JMB is in default, and JMB
24 allegedly conducted all acts or lack of actions, all concealments, misrepresentations, promises,
25 abandonment, and theft with willful, knowing, intentional, malicious intent, and in a wanton reckless and
26 extremely negligent manner against the Simpkins. Therefore, the Appellees, John Maher Builders, Inc.,
27 John Maher, and Tony Maher have waived their rights to a defense per the Rule of Civil Procedure 12.08
28 and therefore, the Appellants, the Simpkins, are entitled to a Final Judgement with “Prejudice” based on
29 the Tennessee Statutes, the Authorities presented in this Motion and Memorandum of Law, and the
30 preponderance of evidence proving the violations committed by JMB et. al.
31 86) The Court allegedly knowingly and erroneously concurred with the Appellees false
32 statements that all the Appellants thirteen (13) claims came under Tenn. Code Ann. § 28-3-105 and that
33 the Appellants had exceeded the statute of limitations because allegedly the Appellants knew “ALL” of
34 the problems and issues with the property in August 2017, which was an “impossibility”. To put this into
35 perspective, if the Plaintiff’s/Appellant’s knew everything in August of 2017, then why did JMB defer
36 their own investigations and require the Appellant’s in August 2017 and November of 2017 to hire mold
37 and carpet inspections before JMB would address “Warranty” issues? The Court’s and the
38 Defendants/Appellee’s claims and conclusions were allegedly intentionally false.

Page 40 of 62
 1 87) [E]xtrinsic fraud, on the other hand, “involves deception as to matters not at issue in the
2 case which prevented the defrauded party from receiving a fair hearing.” Nobes v. Earhart, 769 S.W.2d
3 868, 874 (Tenn. Ct. App.1988).
4 88) Another instance of alleged fraud on the Court was committed when the opposing party
5 misrepresented the full meaning of Tenn. Code Ann. § 28-3-105, to misconstrue the intent and meaning
6 of the statute and falsely conclude that “Plaintiffs” had exceeded the statute of limitations for all thirteen
7 (13) claims under this single statute. But it was a known fact to both the Opposing Counsel and also the
8 Court, that the “Breach of Contract” and “Breach of Warranty” were both primary and were both
9 appropriate in the Plaintiff’s case due to the JMB’s abandonment and failure to abide by the law and
10 abide by JMB’s own policies and procedures.
11 (“Based upon our review of the record, we find no merit in the Jones brothers’ argument that the evidence
12 preponderates against the conclusion that they, not the Andersons, breached the contract by
13 abandonment”). Catherine Smith Bowling, et al. v. Todd Jones, et al. - E2007-01581-COA-R3-CV –
14 (Filed May 16, 2008).
15
16 (“The abandonment of a contract gives rise to a cause of action for breach”. Gillespie v. Broadway
17 Nat’l. Bank, et al., 68 S.W.2d 479, 482 (Tenn. 1934)).
18
19 89) Extrinsic fraud was committed when the Appellees allegedly misrepresented the law
20 relative to the Appellants thirteen (13) claims, as if all claims had exceeded the statute of limitations and
21 when the Appellees allegedly manipulated evidence by using purposefully abbreviated snippets of
22 information from the Appellants Complaint to construe a false conclusion for the Court. The Appellants
23 have proven to the Defendants/Appellees and the Court that they had not exceeded the statute of
24 limitations.
25 90) Examples of extrinsic fraud allegedly committed by the Court and Opposing Counsel::
26 a) The Presiding Judge did not recuse himself when notified of his prior adjudication of cases
27 that benefitted John Maher Builders Inc., nor when notified of the alleged prejudicial acts
28 against the Simpkins and distinct bias for the Appellees,
29 b) A false “Date of Service” was allegedly deliberately established by the Appellees and the
30 Court, which allowed the Appellees to avoid an untimely response. The Court refused to
31 correct the false “Date of Service” and denied the Simpkins a “default judgment” in so doing.
32 c) The Court refused to adjudicate all thirteen (13) separate claims by law and by the Supreme
33 Court Ruling establishing the new Two-Step Process

Page 41 of 62
 1 d) The Court allowed only Tenn. Code Ann. § 28-3-105 to apply to the Appellants case and
2 denied the Appellants the use of statutes commonly used to provide remedies for Breach of
3 Contract and Breach of Warranty, Theft, and others.
4 e) The Court denied the Appellants the use of Tenn. Code Ann. § 47-18-1402, Warranty
5 Extension Period based on a home, a residential property, not being a “product”, yet in Dixon
6 v. Mountain City Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982).”,
7 “in accord with Restatement § 402A and the UCC implied warranties set forth in T.C.A. § 47-2-314.
8 The Court of Appeals held that the UCC implied warranty did not apply but that where a property
9 owner contracted for a house to be built upon his lot the structure was a "product" within the concept
10 of strict liability in tort as stated in Restatement § 402A. The Court of Appeals took the additional step
11 of adopting an implied warranty that the house would be built, "in a workmanlike manner and suitable
12 for habitation."
13
14 29-28-103. Limitation of actions Exception.
15 (a) Any action against a manufacturer or seller of a product for injury to person or property caused by
16 its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-
17 3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions, it
18 must be brought within six (6) years of the date of injury, in any event, the action must be brought
19 within ten (10) years from the date on which the product was first purchased for use or consumption,
20 or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter,
21 except in the case of injury to minors whose action must be brought within a period of one (1) year
22 after attaining the age of majority, whichever occurs sooner.
23
24 S 402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO
25 USER OR CONSUMER
26 (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer
27 or to his property is subject to liability for physical harm thereby caused to the ultimate user or
28 consumer, or to his property, if
29 (a) the seller is engaged in the business of selling such a product, and
30 (b) it is expected to and does reach the user or consumer without substantial change in the condition
31 in which it is sold.
32
33 f) The Court refused to acknowledge the Appellants inspection reports and findings. The Court
34 refused to use these reports to establish the discovery dates of new issues,
35 g) The Court refused to acknowledge or rule on matters of Fraud and Theft,
36 h) The Court and the Opposing Counsel knowingly used a false basis (statute of limitations
37 exceeded) to dismiss the Appellants entire complaint,
38 i) The Court and the Opposing Counsel did not respond to, nor address, nor rule on multiple
39 motions and memorandums of law filed by the Appellants, especially including Emergency
40 motions. The Court and the Defendants deliberately avoided arguing the appellants March
41 15th, 2021, Emergency Motion and Memorandum of Law,

Page 42 of 62
 1 j) The Court did not require the Appellees to support their arguments with affidavits,
2 controverting evidence, and statutes and authorities and held the Appellants to a higher
3 standard of proof,
4 k) The Court refused to void its Final Judgement after the Appellants proved the Judgement was
5 errored and violated the Appellants Constitutional Rights and was therefore void by law,
6 l) The Court ignored specific statutes and authorities that the Plaintiffs used which proved and
7 won their case by law and instead used incorrect and inappropriate case law,
8 m) The Court made a final judgment ‘with prejudice’ to thwart any further action by the Simpkins
9 against this Builder,
10 n) The Court did not rule for relief on behalf of the Appellants despite several advisories from a
11 Mold Expert that the Simpkins be placed in substitute housing,
12 o) The Court ignored Mrs. Simpkins health crisis on March 20th, 2021, and refused to provide
13 relief from the toxic environment which was the cause of her near death on that date.
14 p) The Court would not rule to stop the foreclosure (TRO) of the property knowing it was the
15 central evidence in this case.
16
17 V. STATEMENT OF THE ARGUMENTS
18
19 a. FOR BUILDER’S FAILURES BY LAW
20 Tennessee Real Estate Disclosure Law – Tenn. Code Ann. § 66-5-202
21 Builder Failure to Disclose Numerous Pre-Existing Property Issues, Damage,
22 Material Defects, Defective Construction, and Mold
23
24 91) The Appellants provide for the Appellate Court just some examples of issues that were
25 never disclosed to the Appellants, but this is not the all-inclusive list of the fifty-eight (58) documented
26 code violations which are all listed in the investigative reports. A-1 Waterproofing’s Report October 30th,
27 2020, Report provides a good summary of all the violations and has provided a classification level of
28 negligence of each. (See Exhibit - SIMP-00A91 - A-1 Waterproofing Suppl Invest Inspect by Inspector
29 James Gafford 10-30-20). The complaint alleged that defendants knowingly made false statements on
30 their Tennessee Residential Property Disclosure form when they stated that they were unaware of any (1)
31 defects or malfunctions in the house’s exterior walls and basement; (2) flooding, drainage or grading
32 problems; and (3) past or present water intrusions or standing water within the foundation or basement.
33

Page 43 of 62
 1 VI. NEVER DISCLOSED BY LAW – “Fifty-Eight (58) Code Violations” were not disclosed to
2 the Appellants and due to this failure of the Builder, the Appellants Insurance Coverage for
3 the issues in the property were denied coverage due to the “pre-existing conditions” of an
4 incomplete and damaged and defective property and the Appellants have been financially
5 ruined in trying to save the property only for it to become a “complete loss”. (See Exhibit
6 SIMP-00A15 - A-1 WP Investigative Property & Mold Inspection Report), Pg 5
7 Paragraph 5 line 11, “The property, I would deem a complete loss because it
8 effectively needs to be gutted for inspection, treatment, re- evaluation, then rebuilt.”
9
10 VII. NEVER DISCLOSED BY LAW – “No Vapor Barrier Installed Under Sill Plate Mandatory
11 by Code.” This was classified as Gross Negligence by Corum Engineering and A-1
12 Waterproofing. The Builder, JMB never disclosed that they did not install a vapor barrier
13 under the sill plate against the foundation of the property by Real Estate Law Tenn. Code Ann.
14 § 66-5-202. By mandatory code requirements, the Sill plate is required to have a vapor barrier
15 to “seal” the sill plate from the concrete block and substrate to prevent water, mold, insect
16 (termite) infestation and deterioration. “IRC 2012 Building Code - Table R402.4.1.1 Air
17 Barrier and Insulation Installation, (MANDATORY), Shaft Penetrations; Duct shafts, utility
18 penetrations and flue shafts opening to exterior or unconditioned spaces shall be sealed).”
19 (See below images for the sill plate with no mandatory vapor barrier.)
20
21
22
23
24
25
26 IMAGE 1 – No Foam Vapor Barrier IMAGE 2 – No Foam Vapor Barrier
27 (Mandatory Requirement for Vapor Barrier) (Mandatory Requirement for Vapor Barrier)

Page 44 of 62
 1
2
3 VIII. NEVER DISCLOSED BY LAW – “Garbage Disposal Knockout Plug was never Removed.”
4 The garbage disposal knockout plug was never removed, and the dishwasher had been
5 overflowing out the back of the dishwasher (before and after the sale of the property unknown
6 to the Simpkins) down between the hardwood floors and the plywood subfloor and then down
7 into the crawlspace saturating the vapor barrier and the ground.
8 Note: The sensor pan for the dishwasher would be found over two (2) years later by the Simpkins in
9 the very bottom drawer below the ovens. This sensor pan would cause the dishwasher to shutoff if the
10 level of water was too high in the sensor pan to prevent overflows. The sensor pan not being installed
11 allowed the overflow for several weeks.

Page 45 of 62
 1 IX. NEVER DISCLOSED BY LAW – “The Discharge Side of the Garbage Disposal Drainpipe
2 did not have a Gasket.” The drainpipe coming out of the garbage disposal was missing a
3 gasket allowing wastewater to flood down under the sink cabinet (before and after the sale of
4 the property unknown to the Simpkins) and subsequently down into the large air duct tubing
5 which went into the main duct line flooding the main duct line and HVAC system with water.
6 (This would not be discovered until the following year by A-1 Waterproofing) which had

The below image was from A-1 Waterproofing’s Jan 2019 Investigative Inspection Report from Page 20,
Exhibit X28 – Under Sink Cabinet Space - Duct Supply – Not To Code. Based on the Inspection from
Lee Company (Exhibit - SIMP-00A2 - Lee Company Investigative Service Report with Pricing). This
image shows that the main drainpipe from the kitchen sink was installed directly adjacent to the main air
duct for the kitchen supply. Lee Company showed from N1103.2.3 (R403.2.3) Building Code for
“Building Cavities” that framing cavities shall not be used as ducts or plenums” and as shown in the
image below, in this case, it was in direct violation of that (Mandatory) Building Code requirement.

7 contributed to the high levels of moisture in the property, and which contributed to the
8 sweating on the walls in the property.
9
10 X. NEVER DISCLOSED BY LAW – “Utility Penetrations were Not Foam Sealed”.
11 Misrepresented as being completed on August 3rd, 2017, prior to close on August 4th,
12 2017. (This is both alleged fraudulent misrepresentation and fraudulent concealment by
13 JMB). The interior was not sealed off from the crawlspace and microbial spores and mold

Page 46 of 62
 1 spores flowed up into the inside of the walls and into the interior of the property bringing the
2 moisture with it, creating a perfect environment inside the walls to grow mold.

3
4 The “utility penetrations” were mandatory codes that should have failed the final inspection
5 but did somehow did not fail the inspection by the City Inspector.
6
7 XI. NEVER DISCLOSED BY LAW - Builder Alleged Fraudulent Misrepresentation and
8 Fraudulent Concealment
9 92) JMB had misrepresented the property in several regards, and fraudulently concealed issues
10 both before the closing on the property and after the closing of the property when JMB had multiple
11 opportunities to correct the open utility penetrations but continued to “conceal” the issue and did not
12 perform on the contract or the warranty contract. It is established that on the July 2017 Punch List that
13 JMB was required to foam seal all crawlspace penetrations. The first act of concealment occurred before
14 the sale when on August 3rd, 2017, JMB’s management, Eddie Savage Superintendent for JMB, and Tony
15 Maher, COO of JMB, falsely stated that they personally foam sealed the penetrations.
16 (Stacks v. Saunders , 812 S.W.2d 587 (Tenn. Ct. App. 1990)), “The basic elements for a fraud
17 action are: an intentional misrepresentation with regard to a material fact.”) “Moreover, a party is
18 liable to the same extent for concealing a material fact as a party is liable for intentional
19 misrepresentation.” (Patel v. Bayliff, 121 S.W.3d 347, 352-53 (Tenn. Ct. App. 2003)) (quoting
20 Macon Cty. Livestock Mkt. Inc. v. Ky. State Bank, Inc., 724 S.W.2d 343, 349 (Tenn. Ct. App.
21 1986)).
22
23 Under Tennessee law, "[i]t is well recognized that fraudulent concealment prevents *873 the
24 running of the statute of limitations and that the statute begins to run from the time of discovery
25 of the fraud." Howell v. Davis, 43 Tenn. App. 52, 60, 306 S.W.2d 9, 12-13 (1957).
26
27 "The common law action for fraud may be stated as follows:
28 When a party intentionally misrepresents a material fact or produces a false impression in order to mislead
29 another or to obtain an undue advantage over him, there is a positive fraud. The representation must have
30 been made with knowledge of its falsity and with a fraudulent intent. The representation must have been
31 to an existing fact which is material and the plaintiff must have reasonably relied upon that
32 misrepresentation to his injury.

Page 47 of 62
 1
2 First Nat'l Bank v. Brooks Farms , 821 S.W.2d 925, 927 (Tenn. 1991) (quoting Haynes v.
3 Cumberland Builders, Inc., 546 S.W.2d 228, 232 (Tenn. Ct. App. 1976)); see also Hodges v. S.C.
4 Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992); Dobbs v. Guenther, 846 S.W.2d 270, 274 (Tenn.
5 Ct. App. 1993). 'Tennessee courts have recognized that fraud by its nature is often difficult to
6 prove and thus may be properly proved by wholly circumstantial evidence.' Edwards v. Travelers
7 Ins. of Hartford, 563 F.2d 105, 112 (6th Cir. 1977) (citing Parrott v. Parrott, 48 Tenn. 681, 687
8 (1870))." 42 S.W.3d at 67-68.
9
10 93) Under Tennessee Law for fraud, a person cannot use the statute of limitations as a defense.
11 (T.C.A. § 28-3-205(b) – “The limitation hereby provided shall not be available as a defense to any person
12 who shall have been guilty of fraud.”, (T.C.A. § 47-14-104 Unfair or Deceptive Practices)(a) – “Unfair
13 or deceptive acts or practices affecting the conduct of any trade or commerce constitute unlawful acts or
14 practices and are Class B misdemeanors.” (Ref - Simpkins Complaint – Pg 98, VII. Third And Fourth
15 Cause Of Actions Fraudulent Concealment and Fraudulent Inducement).
16
17 In (Stacks v. Saunders , 812 S.W.2d 587 (Tenn. Ct. App. 1990), "The plaintiff in this case also
18 raised a claim against the defendant based on the tort of fraud. The basic elements for a fraud
19 action are:
20 (1) an intentional misrepresentation with regard to a material fact , Keith v. Murfreesboro
21 Livestock Market, Inc., [780 S.W.2d 751 (Tenn. Ct. App. 1989)];
22
23 The Appellees represented that the “Utility Penetrations” from the August 3rd, 2021, Final
24 Walkthrough had been “foam sealed” per Eddie Savage and Tony Maher. This alleged knowing
25 intentional false statement would not be discovered until January 16, 2018, which the discovery by the
26 Tennessee Supreme Court Ruling would toll the Statute of Limitations.
27 The Discovery Rule “According to the Tennessee Supreme Court”
28 As a general rule, the statute of limitation does not begin to run until the action “accrues.” A claim
29 will not “accrue” until it would be reasonable for the plaintiff to “discovery” the existence of a
30 claim. Accordingly, the “discovery rule” is an equitable doctrine that tolls, i.e., stops, the statute
31 of limitations from running while the plaintiff has no knowledge that a wrong occurred. Cole v.
32 Wyndchase Aspen Grove Acquisition Corp., No. 3:05-0558, 2006 WL 2827452, at *4 (M.D.
33 Tenn. Sept. 28, 2006).
34
35 (2) knowledge of the representation falsity--that the representation was made 'knowingly' or
36 'without belief in its truth,' or 'recklessly' without regard to its truth or falsity, Tartera v. Palumbo,
37 [453 S.W.2d 780, 782 (Tenn. 1970)];
38
39 When Eddie Savage and Tony Maher knowingly and willingly stated that the “Utility
40 Penetrations” had been sealed, they both knew the falsity of the statement, and that the Appellants would
41 rely on that information and trust that it was true. Further, Eddie Savage and Tony Maher both knew that

Page 48 of 62
 1 the “Appellants would be harmed by the mold” and that “the mold was already in the drywall in the entire
2 property” but also concealed that from the Appellants..
3
4 (3) that the plaintiff reasonably relied on the misrepresentation and suffered damage, Holt v.
5 American Progressive Life Ins. Co., 7[31 S.W.2d 923, 927 (Tenn. Ct. App. 1987)]; Haynes v.
6 Cumberland Builders, Inc., [546 S.W.2d 228, 232 (Tenn. Ct. App. 1976)]; and
7
8 (4) that the misrepresentation relates to an existing or past fact, Haynes, 546 S.W.2d at 232, or, if
9 the claim is based on promissory fraud, then the misrepresentation must 'embody a promise of
10 future action without the present intention to carry out the promise,' Keith, [780 S.W.2d at 754
11 (citing Brungard v. Caprice Wreckers, Inc., 608 S.W.2d 585, 590 (Tenn. Ct. App. 1980)]." 812
12 S.W.2d at 592.
13
14 94) The second act of concealment which the Court refused to rule on in violation of the rules
15 of civil procedure and in violation of the Appellants rights occurred after the sale during the August 29,
16 2017, warranty meeting when JMB knew that they had not sealed the “utility penetrations” and knew
17 that the Simpkins reports of moldy and putrid hay smells in the interior of the property were a direct result
18 of the air coming from the open crawlspace penetrations. The Simpkins would learn of this when they
19 were educated of this fact by the Mold Inspector in January 2018. JMB would have also been able to
20 logically assume that it was mold spores from crawlspace air that was causing the Simpkins eye, nose,
21 throat, lung and skin reactions yet took no action to alleviate the issues affecting their health and damage
22 occurring to the property. JMB had “that” second opportunity on August 29th, 2017, to address and correct
23 the open penetrations but instead continued their deception towards the Simpkins by continuing to
24 conceal the fact that they never sealed penetrations and now were also concealing the fact that the mold
25 was escaping the crawlspace and infecting and damaging the interior of the property and harming the
26 Simpkins. This proves JMB’s alleged malicious intent.
27 95) Instead of resolving the mold, water issues, and sealing the penetrations that JMB knew
28 were allowing the continuous contamination of the interior of the property, on August 29, 2017, JMB
29 denied that there was any mold issue anywhere in the property and then placed the onus on the Simpkins
30 to investigate and provide JMB a third-party inspection report before the Builder would agree to take any
31 action. The Simpkins contacted several mold inspection and remediation companies who were booked
32 months in advance and obtained an investigative inspection report on January 31, 2018. Early February
33 2018, the Simpkins mailed copies of mold property inspection report along with the January 2018 Carpet
34 inspection report to JMB with another warranty request letter. This was JMB’s third act of concealment,
35 because the Mold Inspector discovered the fact that none of the penetrations had been sealed and
36 identified that the mold from the crawlspace was invading the property interior as a result. The mold

Page 49 of 62
 1 inspection report revealed that plumbing, electrical, gas penetrations, the foundation vents and the HVAC
2 ductwork all had to be sealed because they had not been sealed. This discovery in January 2018 proved
3 that Eddie Savage and Tony Maher, JMB Management, made deliberate false statements on August 3,
4 2017, the day before closing, claiming the penetrations had been sealed and made false promises to the
5 Simpkins that JMB would take care of them if the mold presented them with any problems after the sale.
6 JMB never responded to the inspection reports that JMB had required the Simpkins obtain in order to
7 receive warranty service and never honored their promises.
8
9 XII. NEVER DISCLOSED BY LAW – “Crawlspace Air Was Allowed to Enter Into the Property
10 Knowingly by JMB.” That the moldy crawlspace air was continuously contaminating the
11 interior of the property both before and after the sale. The Court singularly focused on the
12 word “mold” and avoided any discussion or acknowledgement of the proof of “fraudulent
13 concealment” and “fraudulent misrepresentation”. This is alleged fraud on the Court.
14
15 XIII. Summary & Conclusion for “Fraudulent Misrepresentation and Fraudulent
16 Concealment” of the Utility Penetrations:
17 96) Appellants address the first issue concerning the mold which the Court has refused to
18 address. The Appellees never disclosed the mold by the “Tennessee Real Estate Disclosure Law” Tenn.
19 Code Ann. § 66-5-202. Further the Appellees were required to disclose the mold in writing per line 119
20 of the “Tennessee Residential Property Condition Disclosure”, (hereinafter referred to as TRPCD),
21 which states the following; (water, and/or known existing or past mold presence on the subject
22 property?). The disclosure the Appellants received from the Builder does not show any information
23 regarding mold. The Court does not hold the Builder accountable for concealing the mold which was a
24 Breach of Contract.
25
26 (NOTE: According to Mr. James Gafford of A-1 Waterproofing, “mold” does not grow overnight,
27 it would take months for it to cover all the materials in the crawlspace therefore the Builder was
28 aware of the mold but did not treat the mold to prevent its growth. Further the Builder, JMB, did
29 not disclose the mold by law, and the Simpkins relied on the Tennessee Real Estate Disclosure
30 Form in deciding to purchase the property.
31
32 (See Ralph Hall et al. v. Jimmy D. Tabb et al., W2020-00740-COA-R3-CV – (Tenn. Ct. App.
33 March 25, 2021)).
34
35 Three months after moving into the Property, the Halls contracted with Terminix for termite
36 treatment. Upon inspection and treatment, the Terminix employee discovered rotten wood and

Page 50 of 62
 1 considerable damage to the joists and subflooring at the back of the house due to mold
2 contamination and termites. As a result, the Halls paid Terminix $6,272.00 to remove the mold
3 and $894.00 for the termite treatment. The Halls also hired E&T Contracting (“E&T”) to repair
4 the joists and subflooring. Because the damage to the Property was so extensive, E&T had to
5 remove and replace the entire flooring system in the back of the house.
6
7 “Although the trial court denied the Halls’ TCPA claim, it granted their claim for intentional
8 misrepresentation against the Tabbs. The Tabbs appeal this ruling. The tort of intentional
9 misrepresentation is also referred to as “fraudulent misrepresentation” or “fraud” and is the
10 successor to Tennessee’s common law action for deceit. Hodge v. Craig, 382 S.W.3d 325, 342
11 (Tenn. 2012) (citing Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 904 n.1 (Tenn. 1999); First
12 Nat’l Bank of Louisville v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991)).
13
14 97) This intentional (fraudulent) misrepresentation in Ralph Hall et al. v. Jimmy D. Tabb et
15 al, was for not filling out the Disclosure Form by law, Tenn. Code Ann. § 66-5-202, to properly disclose
16 issues with the property, which as the Appellate Court states, “[that the Tabbs] were deceptive and that
17 they had an affirmative duty to disclose the same on the [Disclosure Form] is a “requirement”, and
18 clearly applies to the Appellants case and therefore the Appellants should be entitled to damages, and due
19 to the fraud entitled to treble damages per Tenn. Code Ann. 47-18-104(b) - Unfair or deceptive acts
20 prohibited.
21
22 (a) Unfair or deceptive acts or practices affecting the conduct of any trade or commerce constitute
23 unlawful acts or practices and are Class B misdemeanors.
24 (b) Without limiting the scope of subsection (a), the following unfair or deceptive acts or practices
25 affecting the conduct of any trade or commerce are declared to be unlawful and in violation of this
26 part: (1),(4),(6),(7),(21),(27)
27
28 (Cont.) Ralph Hall et al. v. Jimmy D. Tabb et al., W2020-00740-COA-R3-CV – (Tenn. Ct. App.
29 March 25, 2021).
30
31 “Intentional misrepresentation or fraud claims are inherently fact driven. See Maddox v. Olshan
32 Found. Repair & Waterproofing Co. of Nashville, L.P., No. M2018-00892-COA-R3-CV, 2019
33 WL 4464816, at *17 (Tenn. Ct. App. Sept. 18, 2019) (citing Vic Davis Constr., Inc. v. Lauren
34 Engineers & Constructors, Inc., No. E2017-00844-COA-R3-CV, 2019 WL 1300935, at *6
35 (Tenn. Ct. App. Mar. 20, 2019); Ray v. Williams, No. W2000-03000-COA-R3-CV, 2002 WL
36 974671, at *3 (Tenn. Ct. App. May 9, 2002)). Accordingly, we defer to the trial court’s findings
37 of facts concerning the Tabbs’ alleged intentional misrepresentation to the Halls unless the
38 evidence preponderates otherwise. Bowden, 27 S.W.3d at 916 (citing Tenn. R. App. P. 13(d)). In
39 granting the Halls’ claim for intentional misrepresentation, the trial court found that,
40
41 “the [Tabbs’] misrepresentations involved failing to disclose a “quick fix” and non-
42 proper fix to [the Property], [that the Tabbs] were deceptive and that they had an
43 affirmative duty to disclose the same on the [Disclosure Form]. The [trial court] found
44 further that the [Halls] relied on the misrepresentations of [the Tabbs] to their detriment
45 and that they suffered damages based upon these misrepresentations. The [trial court]
46 found that the [Halls] had the right to rely on the representations of the [Disclosure Form]
47 without having obtained an inspection on the Property.”

Page 51 of 62
 1
2 98) In the Appellants situation the alleged “fraudulent misrepresentations” involved not
3 disclosing that there was mold in the crawlspace on the [Disclosure Form] as required by law, Tenn. Code
4 Ann. § 66-5-202, and not disclosing that the mold was also in the interior of the property on the Disclosure
5 Form by law, which neither of these were disclosed in writing. Further, JMB at the last minute stated to
6 the Appellants “that there has been an issue with mold in the crawlspace, and that the HVAC had not
7 been running, and once it has been running for a while the mold will dry up, flake off and go away.” This
8 is not in accordance with the law. The first issue is that JMB allegedly and intentionally withheld
9 (concealed) this crucial information from the Appellants and did not disclose this issue until the last
10 minute (in the afternoon on August 3rd, 2017, on the day before closing). This is considered alleged
11 “fraudulent concealment”. JMB intentionally concealed this issue from the Simpkins until the last minute
12 due to the closing being the very next morning, knowing that there would be nothing the Simpkins could
13 do legally to protect themselves in such a short period of time. Further, upon notification of the mold the
14 Simpkins refused to purchase the property. At that point Eddie Savage and Tony Maher make promises
15 that if the mold became a problem affecting the interior of the property, that JMB would address the issue,
16 if the mold affected the health and safety of the Simpkins inside the property, that JMB would pay the
17 Simpkins to put them up in temporary housing while JMB resolved the mold issue to their satisfaction.
18 Neither of those occurred, this is allegedly (promissory fraud). (Keith, 780 S.W.2d at 754, citing
19 Brungard v. Caprice Wreckers, Inc., 608 S.W.2d 585, 590 (Tenn. Ct. App. 1980).
20 99) The Simpkins requested that the mold be dealt with before closing tomorrow or delay the
21 closing until the mold issue is resolved. Tony Maher threatened the Simpkins and stated that unless they
22 closed on the property at 9AM tomorrow morning that JMB would keep their deposits and sell the
23 property to someone else because they had a long list of people wanting to purchase this particular
24 property. The threats to keep the Simpkins deposits if they did not close the following morning is
25 allegedly considered by law, is (extortion), Tenn. Code Ann. § 39-14-112.
26 100) As is already proven by the current situation and the Appellants are using a tent in their
27 driveway for their refuge, the promises were never kept by JMB. The Hall’s case show that the Appellate
28 Court did note that there is “an affirmative duty to disclose the same on the [Disclosure Form].” The
29 Appellants relied on the misrepresentation of JMB to their detriment and that they suffered damages
30 based on these misrepresentations of the [Disclosure Form].
31

32 XIV. Further Miscellaneous Items Not Disclosed By Law

Page 52 of 62
 1 1. The Builder lets the mold grow to cover all the materials in the crawlspace which the
2 Builder withholds from the Simpkins until the day before closing, this is alleged pre-
3 meditated concealment.
4 2. That the Appellees never disclosed that they did not seal the “utility penetrations” in the
5 crawlspace. The Appellees intentionally made false statements that the “utility
6 penetrations” had been sealed.
7 3. That by not sealing the “utility penetrations” the Appellees knew the mold would go up
8 into the property because they knew that the “utility penetrations” “were not sealed”.
9 4. Then in the first couple of weeks after moving in the Appellants noticed the symptoms
10 were increasing. The Appellants notified JMB, this was the first opportunity for JMB to
11 address the mold in the crawlspace but did nothing about the notification of the increasing
12 issues with airborne irritants knowing full well that the source of the issue was from the
13 crawlspace because they knew they had intentionally not sealed the penetrations and knew
14 full well the Simpkins health was being affected but still did nothing about it. (This is
15 alleged malicious intent to harm).
16 5. Then on the 29th of August 2017 Eddie Savage and Tony Maher came out to the property
17 to address our various issues. Two of them primary, the mold and the carpet. During the
18 onsite visit, Eddie Savage and Tony Maher stated that they could not see or smell mold.
19 They then requested that the Simpkins perform an inspection and provide them with a
20 report stating what the issue was, if it was mold and where it was, and they would handle
21 it. The second issue, when Tony Maher stated he was not replacing the carpet Tony pulled
22 Eddie Savage away from the Simpkins and discussed the carpet issue, Eddie Savage came
23 back over to the Appellants while Tony Maher took a phone call and stated that Tony
24 Maher stated that if we wanted the carpet replaced we would have to provide a report that
25 stated if there was an issue with the carpet or that it was a failed carpet, otherwise we
26 would have to sue him in order for JMB to do something about the carpet. In the May 7th,
27 2021, Order the Court incorrectly states and misrepresents the full facts of the actual
28 statement in the Plaintiff’s Complaint, the Court point to Pg 18 lines 19-23, “The
29 Complaint alleges that Tony Maher told the Simpkins that the Defendants would only do
30 something if the Simpkins sued them and only if the Court ordered them to do something”.
31 The previous statement has been allegedly intentionally misquoted to present an alleged
32 false view from what actually was stated by Eddie Savage to the Plaintiffs, the Court’s

Page 53 of 62
 1 version is only partially correct, as the Plaintiffs already attempted to correct the Court’s
2 error once before but the Court has ignored that requested correction, here is the actual
3 statement on those lines in the Plaintiff’s Complaint, “TM stated at the August 29, 2017
4 one and only post-purchase meeting between JMB Management, (“between” JMB
5 Management is exactly what it means, the conversation was between Eddie Savage
6 Superintendent of JMB and Tony Maher COO of JMB, Eddie Savage conveyed the
7 message to the Plaintiffs, after he and Tony Mahe spoke), “Eddie Savage stated to the
8 Plaintiffs, that Tony Maher stated, “that the Plaintiffs would have to sue them and only
9 then if the Court ordered it would they do something,” which was in relation to the
10 Plaintiffs requesting the carpet to be replaced, not the entire property. The Court decided
11 to take that completely out of context so that it could make a false claim that the Appellants
12 knew everything in August of 2017. That statement by the Court is an alleged attempt at
13 blatant subterfuge which has nothing to do with a legal basis, Tenn. law or authorities.
14 Tony Maher stated at the warranty meeting that he was not going to replace the carpet
15 unless we had a report stating that it was damaged or the warranty was invalidated or
16 failed, (Two of the inspection reports JMB required the Simpkins to get, the mold
17 inspection and the carpet inspection. It took time and the Simpkins money, and the
18 Simpkins realized later that the whole event was a charade to make the Simpkins to go
19 through extraordinary steps which were nothing more than deliberate delay tactics as
20 proven by the fact that JMB ignored the results and recommendations from the reports
21 form the Carpet Inspector and the Mold Inspector. Therefore, the Court has allegedly
22 misstated the factual statements that were “actually” stated. This is during the warranty
23 period and
24 6. The Court has refused to acknowledge the discoveries, as well as the tolling dates of each
25 new discovery, in each inspection report that proves JMB did not perform in a workman
26 manner (breach of contract) as evidenced by the mandatory code violations and property-
27 wide code omissions documented over 1.5 years’ time in those very reports. The Court
28 made no mention of the Builder’s abandonment of the Plaintiffs and the fact that for nearly
29 4 years the builder has not been back to property to investigate, address, repair or resolve
30 any issues and has never offered any form of restitution in place of taking no action to
31 resolve the defects.

Page 54 of 62
 1 101) Instead of ruling on the discovery of alleged fraud and also acknowledging the discovery
2 date’s tolling of the statute of limitations, the Court summarily dismissed the Appellants motions for
3 relief and case with (13) separate claims and did so based on an alleged false legal basis. It is an
4 incredulous fact that a Court has found no fault whatsoever with the Defendants/Appellees and their
5 Counsel throughout the entire proceedings, and it is further incredulous that a Court would defend and
6 uphold the allegedly illegal and immoral actions of the Defendants/Appellees, and their Counsel, which
7 shows “extreme prejudice” against the Plaintiffs/Appellants.
8
9 XV. Rules of Professional Conduct Required: Action Required By Counsel to
10 Prevent Harm
11 102) The Appellants brought the following Rules of Professional Conduct to the attention of
12 the Court within both the Complaint and in their Motions: RPC 1.6 - Rule 1.6: Confidentiality Of
13 Information and RPC 8.4. The Court ignored this matter entirety even though by these Rules the
14 Attorney for the Appellees is required by RPC 1.6 to instruct his clients “(3) to prevent, mitigate, or
15 rectify substantial injury to the financial interests or property of another that is reasonably certain to
16 result or has resulted from the client's commission of a fraud in furtherance of which the client has used
17 the lawyer's services, unless disclosure is prohibited or restricted by RPC 3.3.”

18 By the Attorney for the Defendant being notified and being made aware through numerous
19 documents, pictures and videos of the facts, the Attorney for the Defendant knew about the
20 horrors that the Appellants were experiencing but did nothing on his part regarding the
21 law and the legal requirements the Attorney was required to abide by which are the Rules
22 of Professional Conduct. “See RPC 1.6(c)(1) for the circumstances in which the lawyer is
23 required to reveal information for the purpose of preventing reasonably certain death or
24 substantial bodily harm.”

25 Rule 1.6: Confidentiality Of Information

26 (1) to prevent the client or another person from committing a crime, including a crime that is
27 reasonably certain to result in substantial injury to the financial interest or property of another,
28 unless disclosure is prohibited or restricted by RPC 3.3;

29 (2) to prevent the client from committing a fraud that is reasonably certain to result in substantial
30 injury to the financial interests or property of another and in furtherance of which the client has
31 used or is using the lawyer's services, unless disclosure is prohibited or restricted by RPC 3.3;

32 (3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of
33 another that is reasonably certain to result or has resulted from the client's commission of a fraud

Page 55 of 62
 1 in furtherance of which the client has used the lawyer's services, unless disclosure is prohibited
2 or restricted by RPC 3.3;

3 (c) A lawyer shall reveal information relating to the representation of a client to the extent the
4 lawyer reasonably believes disclosure is necessary:

5 (1) to prevent reasonably certain death or substantial bodily harm;

6 Disclosure Otherwise Required or Authorized

7 [17a] Paragraph (c)(1) recognizes the overriding value of life and physical integrity and requires
8 disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.
9 Substantial bodily harm includes life-threatening and debilitating illnesses and the consequences
10 of child sexual abuse. Such harm is reasonably certain to occur if such injuries will be suffered
11 imminently or if there is a present and substantial threat that a person will suffer such injuries at
12 a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who
13 knows that a client has accidentally discharged toxic waste into a town's water supply must reveal
14 this information to the authorities if there is a present and substantial risk that a person who drinks
15 the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is
16 necessary to eliminate the threat or reduce the number of victims.

17 103) The Rule of Conduct, RPC 1.6, applies to the Counsel for the Appellees, who is required
18 to prevent substantial harm or irreparable harm or injury to the Appellants when it is reasonably certain
19 to result in substantial injury to the financial interest or property of another and substantial bodily harm.
20 The Appellants have suffered substantial bodily harm and complete financial ruin upon the failure of their
21 long-time home-based business caused by the upheaval in their living conditions and the time and
22 monetary outlay for mitigating damages for years. The Simpkins financial ruin is to such an extent that
23 the Appellants are in foreclosure due to JMB’s malicious acts against the Appellants. Further, the
24 Appellant’s property is a total loss due to JMB’s abandonment of the Appellants after the first month and
25 the Appellees refusing to communicate or act in a responsible manner for nearly four years with full
26 knowledge of the issues at the property, the Simpkins health crises, and full knowledge of JMB’s
27 abandonment of the Simpkins and JMB’s indisputable Breach of Contract and Warranty. Substantial
28 bodily harm is inflicted daily and as of this writing on July 30th, 2021, Mr. Simpkins legs have swollen
29 to an extreme level and the Doctors claim that it is due to the mold in the tissue causing an inflammatory
30 response and fluid buildup which could cause the rupture of a blood vessel which could have sever effects
31 on Mr. Simpkins health or worse.
32 104) Because there is no room in the property unaffected by the mold sporulation, which the
33 Builder created through its negligent construction practices before the sale of the property to the
34 Appellants. The Attorney for the Builder allowed the Builder to continue the same alleged illegal wanton

Page 56 of 62
 1 malicious acts of refusing a duty of care. The Appellee’s Attorney either did not advise his clients, JMB,
2 to address the egregious situation and remove the Appellants from harm, or he advised JMB to address
3 the egregious situation and remove the Appellants from harm, but JMB refused to perform on his advice.
4 Regardless, the Attorney for the Appellees, by knowing and agreeing “to the truth of the relevant material
5 allegations contained in the Complaint”, knew that his Client was and is still intentionally causing the
6 Appellants egregious substantial injury to the financial interest or property of another and substantial
7 bodily harm. And per the rules of conduct the Attorney should have reported his Clients to authorities for
8 their ongoing wanton, knowing, intentional, maliciously negligent, and reckless acts against the
9 Appellants. Attorney J. Paul Brewer has knowledge of his Clients’ alleged illegal and immoral acts that
10 are so outrageous that they are not acceptable to societal norms. Attorney Brewer should have done
11 something to alleviate the Appellant’s suffering and, by Law, act and report JMB’s failure to heed the
12 advice of the Attorney and or at minimum report, by law, the harm being inflicted by his Client. Attorney
13 for the Appellees is allegedly complicit with the acts of his Client.
14 105) The Court was advised of health and safety recommendations by a mold expert for the
15 Builder to pay for substitute housing. This recommendation was first made in his July 2018 report. In the
16 Mold Expert’s subsequent investigative inspection reports in 2019 and 2020, upon seeing that the Builder
17 took no action whatsoever and the property conditions were continuing to degrade, the Expert’s
18 recommendation in 2018 was changed to a requirement of the Builder in his 2019 and 2020 reports. The
19 Requirement that the Builder fund the Simpkins substitute housing immediately was also made to
20 authorities enforcing the law with the unresponsive Builder. The Appellants motioned the Court for
21 Emergency relief for substitute housing and other matters. The Court ignored the Appellants multiple
22 request to enforce the expert’s requirements to protect the Appellants health and safety by ordering the
23 builder fund substitute housing for the Simpkins. At very minimum, Mrs. Simpkins near death experience
24 on March 20th, 2021, due to the extreme mold conditions, should have triggered immediate action by the
25 Court to order some measure of relief for the Appellants safety. Instead, the Court dismissed the
26 Appellants complaint in its entirety in violation of the Appellants civil and constitutional rights ensuring
27 that further physical and financial harm would come to the Appellants.
28 106) The Appellants have both been severely affected by the mold. The mold in the crawlspace
29 continued to grow back following remediation, which meant that Mr. Simpkins has to start remediating
30 the crawlspace and did so regularly in order to mitigate damage to property and reduce the sporulation
31 inside the property. After Mr. Simpkins went into the crawlspace numerous times, even in full HAZMAT
32 gear, his body was overcome with mold exposure and he had a resultant mold rash from his head all the

Page 57 of 62
 1 way down to his feet. He was hospitalized for several days until his body stopped the severe reaction
2 following treatment. He subsequently developed tumors and other growths on his skin over his body,
3 including his head, nose and back. The Builder was notified of Mr. Simpkins condition but did nothing.
4 Following that Mr. Simpkins developed cancer on his nose and inside his nasal cavity which required
5 daily radiation treatment for three months to remove the cancer which has recently started to grow back
6 due to the continued exposure in the toxic property.
7 107) Mrs. Simpkins almost died on March 20th, 2021, from instantaneous and extreme mold
8 exposure and went into anaphylactic shock. Heavy tarp is tape-sealed over the King bedframe in order to
9 create a protected sleeping space in the master bedroom. But that night/morning, the tape sealing of the
10 tarps to the bed frame failed when the mold ate through the adhesive of the tape, and a long gap allowed
11 spore filled air to flood the bed to which Mrs. Simpkins lungs reacted quickly and severely. If Mr.
12 Simpkins, who has training in natural medicine, had not been in the house that night, Mrs. Simpkins
13 would have died, and this would have been one of the most egregious and wanton malicious tragedies
14 caused by an alleged ruthless Builder. (Mr. Simpkins sleeps sitting in a chair every night in a tent in the
15 driveway due to the lack of oxygen in the sealed bed for two people).
16 108) Attorney for the Appellees, J. Paul Brewer, allegedly violated RPC 8.4 Misconduct and
17 the Appellants request the Appellate Court rule for sanctions against Attorney Brewer for fraud on the
18 Court. (See Exhibit C - Tenn. R. Sup. Ct. 8.4).
19
20 XXVI. CONCLUSION
21 109) The Builder is in default across the board for all claims. The Builder and Officers of the
22 Company knew of the pre-existing conditions in the property as admitted to Detective Carden of the
23 Spring Hill Police Department. The Builder abandoned the Plaintiffs/Appellants and ensured the
24 Appellants demise. The Builder committed numerous frauds to conceal the damage to the property and
25 the fact that the property was incomplete. The Builder knew that the property was not suitable for normal
26 use as a home with the mold in the interior of the property and knew that the mold was in all the materials
27 of the property but failed to honor the warranty and refused to abide by the laws of contract. Further the
28 Builder is guilty of theft per Tenn. Code Ann. § 39-14-154 and the Court should hold the Builder
29 accountable to the theft. The Opposing Counsel was made aware of the violations of RPC 1.6 and 8.4 as
30 well as the Court and neither Attorney J. Paul Brewer for the Appellees nor the Court addressed the issue.
31 The Court and the Opposing Counsel allegedly committed several counts of fraud on the Court in order
32 to railroad the Appellants case out to protect the Builder and the Appellate Court should hold both the

Page 58 of 62
 1 Chancery Court and the Opposing Counsel accountable to the frauds committed which caused deliberate
2 delay, harassment, and further malicious egregious injury to the Appellants.
3 110) Finally, the Appellants are entitled to an award for damages to all claims as stated in the
4 Prayer for Relief and total amount of the damages are assessed to the Corporation and each individual
5 separately.
6
7 XXVII. PRAYER FOR RELIEF

8 WHEREFORE, Appellants pray for immediate judgment with prejudice against Appellees as follows:

9 1. Immediate Final Judgement with “Prejudice” for relief by law for all claims in the Appellants

10 Complaint for all Causes of Actions and the resultant damages and losses by all claims with pre-

11 interest by law, post-interest by law, for treble damages by law, for compensatory consequential

12 and incidental damages by law, for punitive damages by law, for mental anguish and emotional

13 distress damages by law, due to the level of egregious, willful, deliberate, wanton, malicious acts

14 in a reckless manner that it is not considered acceptable in a normal society, in an amount not

15 less than $15,316,707.81 which is the combined damages of $10,226,219.87 plus the pre-interest

16 of $4,090,487.95 for the four years and not previously added in the Complaint. Monetary

17 damages increase as each month goes by.

18 2. Damages to be assessed by the Court and ordered to pay to the Appellants for the loss of the

19 Appellants Home Based Business grossing approximately $480,000 per year based on an hourly

20 rate of $250/hr. “After the fact of damages had been established, less certainty is required with

21 regard to the amount of the damages. The amount of lost profits damages may be based on

22 estimates.” Sostchin v. Doll Enters., Inc., 847 So.2d 1123, 1128 (Fla. Dist. Ct. App. 2003).”

23 3. Damages to be assessed by the Court and ordered to pay to the Appellants for the $144,900

24 difference between the price the Appellants paid for their property in 2017 in comparison to the

25 property JMB recently sold property/Lot 537 on Safe Haven Place in the Brixworth Seven

26 development, for $609,900. This property is almost the same size as the Appellants and is on a

27 street behind the Appellant’s property. The property sold for $144,900, above the price the

28 Appellants paid for their current ruined property. The Appellants are entitled to be compensated

Page 59 of 62
 1 by JMB for this price differential due to the Appellants property being a “Total / Complete” loss

2 systemic with mold.

3 4. The lot value has increased substantially, and the Appellants are entitled to the difference in the

4 original lot price to the current average value of the lot in today’s market for subdivisions near

5 the coveted Summit High School is, $165,000.

6 5. Damages to be assessed by the Court and ordered to pay to the Appellants for the $135,000 for

7 substitute housing for eighteen months while the Appellants resolve their current property issue

8 with the Courts, tear down the property and rebuild if allowed after lot inspections. T.C.A. §47-

9 2-715. Buyer's incidental and consequential damages.

10
11 In addition to damages associated with diminution in value and cost of repairs,
12 courts may also award all damages that are the normal and foreseeable result of a
13 breach of contract. Holladay v. Speed, 208 S.W.3d 408, 415 (Tenn. Ct. App. 2005)
14 (citing Morrow v. Jones, 166 S.W.3d 254 (Tenn. Ct. App. 2004)). These types of
15 damages include reasonably foreseeable consequential and incidental damages. Id.
16 In the present case, the parties stipulated that the Campbells did not need to prove
17 a breach of contract in order to recover consequential damages.
18 6. Damages to be assessed by the Court and ordered to pay to the Appellants for the loss of the

19 current property and cost to payoff mortgage of $497,946.00, foreclosure arrearages of

20 $92,575.00. Scott Campbell, Et Al. V. William H. Teague, Et Al. No. W2009-00529-COA-R3-

21 CV (March 31, 2010).

22 7. Damages to be assessed by the Court against the Defendants/Appellees and ordered to pay to the

23 Appellants for tear down of the property estimate of $164,300. If actual costs are higher than

24 estimate for unforeseen issues, Appellees are ordered to pay the invoiced difference immediately

25 upon receipt of invoice within forty-eight hours to Appellants.

26 8. Damages to be assessed by the Court against the Defendants/Appellees and ordered to pay to the

27 Appellants for Personal Property Losses of estimated $380,000.

28 9. Damages to be assessed by the Court against the Defendants/Appellees and ordered to pay to the

29 Appellants for a new Suburban to replace the ruined one due to mold cross contamination from

30 the property to the vehicle because of the Builder’s failure to address mold in the property,

31 $96,415.00.

Page 60 of 62
 1 10. Damages to be assessed by the Court against the Defendants/Appellees and ordered to pay to the

2 Appellants for general, specific, compensatory, incidental, and consequential damages,

3 according to evidence presented in the compliant, previous Emergency Motion, and this motion,

4 based on the alleged acts supported by a preponderance of overwhelming and indisputable,

5 factual, evidence, and in an amount not less than $15,316,707.81 per person and the Corporation,

6 JMB.

7 11. For the additional disgorgement and restitution of all profits and gains obtained by the unlawful,

8 unfair, and fraudulent acts and omissions alleged herein.

9 12. For punitive and exemplary damages according to evidence and the Tenn. Law for punitive and
10 mental anguish and emotional distress damages by Law. “Tennessee Supreme Court has allowed

11 the recovery of emotional injury damages that stemmed from injury to real property where

12 misrepresentations had been made.” See Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2008).

13 13. For one thousand six-hundred and twenty-three (1,623) days of emotional distress damages as of

14 August 1st, 2021.

15 14. Appellants request the Court to allow and order costs of suit for Appellant’s time incurred in this

16 action as Pro Se. (Estimated time on project 4,795 hours over a 410-day period.)

17 15. The Appellants request that the Court rule on all claims allowed against JMB and award monetary

18 damages according to the law or to the level of egregious acts.

19 16. The Appellants request the Court to Rule on the T.C.A. § 39-14-154 for damages to the

20 Appellants, for “theft” of the Appellants monies per the three Demand Letters the Appellants

21 sent to JMB. For failure of JMB to refund the monies as required by the law. For the Appellate

22 Court to notify the D.A.’s Office and the Attorney General for the “theft”.

23 17. For such other and further relief as the Court may deem proper.

24 18. The Appellants request a Ruling by the Court against the validity and enforceability of the

25 documentation presented by JMB, and that requiring the Appellants or any other potential home

26 buyer to sign those documents which appear to be invalid and unconscionable on their face.

Page 61 of 62
 1 19. Appellants request the Court to Rule against the Tennessee Board for Licensing Contractors

2 ruling and find it unconscionable and by law remove the immunity for the allegedly fraudulent

3 ruling.

4
5 “I declare under penalty of perjury that the foregoing is true and correct. Signed on the 11th, day
6 of August 2021.” Respectfully submitted,
7
8 s/David M. Simpkins, s/ Sally E. Simpkins
9 David M. Simpkins, Sally E. Simpkins, Pro Se
10 1375 Round Hill Ln.
11 Spring Hill, TN 37174
12 dms.consultant@gmx.com
13

14 CERTIFICATE OF SERVICE

15 I hereby certify that on this 11th day of August 2021, I caused to be served this Motion in response to
16 “Defendants Motion to Dismiss” and request for Final Judgement with “Prejudice” against John Maher
17 Builders, Inc. by postage prepaid, first class mail, upon the following counsel:

18 J. Paul Brewer, Attorney for the Appellees

19 201 4th Ave. N, Suite 1400
20 Nashville, TN 37219
21 Phone (615) 499-7279
22
23 s/David M. Simpkins, s/ Sally E. Simpkins
24 David M. Simpkins, Sally E. Simpkins, Pro Se
25 1375 Round Hill Ln.
26 Spring Hill, TN 37174
27 Phone: 737-999-3139
28 dms.consultant@gmx.com
29
30
31 ORIGINAL filed and COPY
32 of the foregoing served on this 11th day of August 2021 to:
33
34 J. Paul Brewer, Attorney for the Appellees
35 201 4th Ave. N, Suite 1400
36 Nashville, TN 37219
37 Phone (615) 499-7279

Page 62 of 62