April 30, 2008

Court allows geotechnical engineer to testify about structural issues in a home construction defect case based on "special and practical" knowledge

DONALD W. MCCUTCHEON, ET AL. V. TND ASSOCIATES, L.P., ET AL. (Tenn.Ct.App. April 30, 2008).

A jury awarded the plaintiff homeowners judgment against their residential building contractor for damages sustained by the plaintiffs when the slope upon which their home was constructed failed. The defendant contractor appeals, arguing that the trial court abused its discretion by allowing an expert witness to testify outside his area of expertise and by allowing another witness to testify as an expert when the plaintiff had failed to identify him as a witness before trial. Upon careful review of the record, it is our determination that the trial court did not abuse its discretion in the admission of the testimony of these witnesses. Accordingly, we affirm the judgment of the trial court.

Opinion may be found at the TBA website:

"Mr. Huckaba testified that in his opinion as a professional engineer, the depth of the foundation that he saw was not adequate, based upon his experience and his observation as to the configuration of the lot and the quality of the soil. Thereafter, Mr. Huckaba further testified that he also held opinions set forth in an exhibit designated Geotechnical Expert. ... TND argues that the trial court erred in allowing the admission of the above three statements of opinion because Mr. Huckaba admitted during voir dire that he is not a structural engineer. We disagree." Id.

"a trial court may consider in determining the reliability of an expert’s methodology include: (1) “the expert’s qualifications for testifying on the subject at issue” and (2) “the connection between the expert’s knowledge and the basis for the expert’s opinion.” [] Upon review of the record in this matter, we are compelled to conclude that Mr. Huckaba has both “special as well as practical” knowledge qualifying him to render an expert opinion as to the matters objected to and that the reliability of his methodology is confirmed by his qualifications and by the connection between his knowledge and the basis of his opinion." Id. (citation omitted).

April 29, 2008

Notification requirement in the Tennessee One-Call statute is strictly construed; Knowledge of excavation may give rise to a duty to warn excavator


Plaintiff, while excavating, struck a gas line which resulted in an explosion and fire, seriously injuring plaintiff. Plaintiffs brought this action against several defendants and the case went to trial against the City of Lebanon and Bush Construction Company, Inc. A jury returned a verdict for the plaintiffs and allocated percentages of fault as to both defendants and the plaintiff. The Trial Court entered Judgment in favor of the plaintiffs and defendants appealed. We reverse the Trial Court Judgment and remand for a new trial on the grounds that a part of the charge to the jury was erroneous.

Opinion may be found at the TBA website:

"The Underground Utility Damage Prevention Act (also known as the Tennessee One-Call statute), codified at Tenn. Code Ann. §65-31-101 et seq., states that “no person may excavate in a street, highway, public space, a private easement of an operator or within one hundred feet (100') of the edge of the pavement of a street or highway, or demolish a building, without giving the notice required by §65-31-106 in the manner provided by such section.” Tenn. Code Ann. §65-31-106 states that before beginning any excavation, a person shall serve written or telephonic notice of intent to excavate at least three working days prior to the actual date of excavation, and that if 15 calendar days expire and the excavation is not complete, then the person shall serve an additional notice at least three working days prior to the expiration of time on the fifteenth day. There is no dispute in this case that Ward did not comply with the provisions of the One-Call statute." Id.

"The record shows that all the parties knew that Ward had to return for further excavations and that the gas line had been reconnected. The UUDPA does not indicate that an excavator’s failure to make the notifying call absolves the utility in all circumstances from negligence or from any common law duty to act reasonably to prevent harm. As stated above, a “risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant's conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” Id. In this case, the foreseeable probability and gravity of harm to plaintiff posed by defendants’ re-connection of the subject gas line, with the knowledge that plaintiff would be excavating in the area, outweigh the burden upon defendant to warn plaintiff that the gas line had been re-connected." Id.

April 22, 2008

Party improving adjacent land without an express contract is awarded quantum meruit for value of materials and labor

SAMUEL DEAN WILLIAMS v. RUSSELL W. COFFEY (Tenn.Ct.App. April 21, 2008).

This case involves a dispute over the improvements made to defendant's land by plaintiff, which alleged that defendant had agreed to sell the land on which the improvements were made. The Trial Court found an implied contract between the parties and awarded plaintiff damages. On appeal, we hold that the Trial Court employed the wrong measure of damages, vacate the damage award and remand for determination of damages under quantum meruit.

Opinions may be found at the TBA website:

"Under Tennessee law there are two distinct types of implied contracts: contracts implied in fact and contracts implied in law, which are often referred to as quasi contracts. A contract implied in fact arises under circumstances which show mutual intent of assent to contract, consideration and lawful purpose. Mutual assent may be shown by the conduct of the parties and the surrounding circumstances. [] In contrast to a contract implied in fact, “contracts implied in law are created by law without the assent of the party bound, on the basis that they are dictated by reason and justice.” [] The Supreme Court has established that a party seeking to recover on an implied contract in law or quasi contract theory must prove the following elements: (1) there is no existing, enforceable contract between the parties covering the same subject matter; (2) the party seeking recovery proves that it provided valuable goods or services; (3) the party to be charged received the goods or services; (4) the circumstances indicate that the parties to the transaction should have reasonably understood that the person providing the goods or services expected to be compensated and; (5) the circumstances demonstrate that it would be unjust for a party to retain the goods or services without payment. []" Id. (citations omitted).

"The most cogent factor for consideration regarding recovery under a quasi contract is unjust enrichment of the parties. [] A quantum meruit recovery is limited to the actual value of the goods and services received by the defendant. [] The reasonable value of services should be based on the customs and practices prevailing in the same sort of business in which the services would normally be provided. [] To prove the reasonable value of the goods and services, the party seeking to recover in quantum meruit can explain the method used to arrive at the fee or offer proof from other professionals in the same business or trade." Id. (citations omitted).

"On this theory, the case law is clear that a quantum meruit recovery must be the reasonable value of the material and labor furnished. [] The Trial Court erred in basing the plaintiff’s recovery on the increased value of defendant’s property. The Court reasoned “Damages to real estate are generally measured by the fair market value of the land immediately prior to the loss, less the fair market value immediately after the loss”. With due deference to the Trial Court, this reasoning is flawed as the property at issue was not damaged, but rather it was possibly improved by plaintiff’s services." Id. (citations omitted).