Court examines warranty of fitness, warranty of merchantability, breach of contract, measure of damages in breach of contract case

DAN STERN HOMES, INC. v. DESIGNER FLOORS & HOMES, INC., ET AL. (Tenn. Ct. App. June 30, 2009).

Appellants, a flooring company hired to install hardwood flooring at a home being built by Appellee, appeal the judgment of the trial court finding them liable for breach of contract and breach of warranty and awarding damages to Appellee. Appellants were hired to install hardwood flooring at a home being built by Appellee. After installation of the floors, problems developed; Appellants tried to correct the problems on numerous occasions to no avail. Appellee hired another subcontractor to refinish the hardwood flooring and to resolve the problems associated therewith. Appellee subsequently brought action against Appellant to recover amounts paid to subcontractor and the trial court awarded Appellee full measure of damages sought. We modify and affirm the judgment of the trial court.

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dansternhomes_070109.pdf

Court examines whether chancery court has subject matter jurisdiction; whether defendant is required to exhaust administrative remedies before trial

CHEATHAM COUNTY by and through its Floodplain Administrator, A. M. Armstrong v. JAMES KONG, ET AL. (Tenn. Ct. App. June 30, 2009)

Appellee was issued a building permit for a carport by Appellant, County. County subsequently revoked the permit and ordered demolition of the carport claiming the structure exceeded that permitted. Appellee failed to demolish the structure, and County sued in the chancery court. Appellee moved to dismiss for lack of subject matter jurisdiction, claiming that he should be allowed to exhaust his administrative remedies-an appeal to the Board of Zoning Appeals-before the chancery court could assume jurisdiction. The trial court granted Appellee's motion to dismiss. We find the chancery court had subject matter jurisdiction over the case, and thus, reverse and remand to the chancery court for a trial on the merits.

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/cheathamcounty_070109.pdf

TCA affrims summary judgment based on statute of repose

GEORGE R. CALDWELL, Jr., ET AL. v. PBM PROPERTIES (Tenn. Ct. App. June 29, 2009)

George R. Caldwell, Jr., and Angie R. Caldwell ("the Homeowners") sued PBM Properties and others alleging that alterations made by PBM in 1998 to the natural drainage conditions on properties that neighbor the Homeowners created a continuing temporary nuisance that recurred in 2005 and caused flooding to the Homeowners' property. PBM filed a motion for summary judgment on the ground that the cause of action was barred by the statute of repose for improvements to real property found at Tenn. Code Ann. section 28-3-202 (2000). The trial court agreed and granted the motion. The Homeowners appeal. We affirm.

The full text of this opinion may be found on the TBA Website at:
http://www.tba2.org/tba_files/TCA/2009/caldwellg_092909.pdf

TCA examines breach of construction contract issues

MADDEN PHILLIPS CONSTRUCTION, INC. v. GGAT DEVELOPMENT CORPORATION (Tenn. Ct. App. June 29, 2009)

This appeal arises out of a dispute between a contractor and landowner over the parties' duties under a construction contract. Plaintiff/Appellee Madden Phillips Construction, Inc. ("Madden Phillips") filed suit to enforce a mechanics' and materialmen's lien and to recover damages in breach of contract against Defendant/Appellant GGAT Development Corporation ("GGAT"). Madden Phillips' complaint included a claim for damages and attorney's fees pursuant to Tennessee Code Annotated sections 66-34-101 to -703, also known as the Prompt Pay Act of 1991 ("Prompt Pay Act"). GGAT counterclaimed and asserted, inter alia, that Madden Phillips failed to perform its contractual obligations in a "workmanlike and expeditious fashion to coincide with the completion schedule of [GGAT]."

The trial court ruled in favor of Madden Phillips. The trial court determined that GGAT wrongfully terminated Madden Phillips from the construction project and refused to compensate Madden Phillips in bad faith. The court further concluded that GGAT's actions constituted a material breach and prevented GGAT from recovering on its counterclaim. The trial court entered judgment in favor of Madden Phillips for damages and attorney's fees in the amount of $88,739.51, plus interest and court costs. We affirm.

The full text of this opinion may be found on the TBA Website at:
http://www.tba2.org/tba_files/TCA/2009/maddenphillips_092509.pdf

Court of Appeals examines permit granting issue

WIRELESS PROPERTIES, LLC, v. THE BOARD OF APPEALS FOR THE CITY OF CHATTANOOGA, ET AL. (Tenn. Ct. App. June 25, 2009)

The plaintiff filed a petition challenging the grant of a building permit to Verizon Wireless. The decision of the City was affirmed by the Board. After the trial court conducted a hearing, it affirmed and dismissed the petition. The plaintiff appeals. We affirm.

The full text of this opinion may be found on the TBA Website at:
http://www.tba2.org/tba_files/TCA/2009/wireless_092509.pdf

Procedure for Local Approval of Landfills

Procedure for Local Approval of Landfills Under Tenn. Code Ann. section 68-211-703

TN Attorney General Opinion (June 11, 2009)

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_115.pdfAG/2009/ag_09_115.pdf

Court reviews Water Quality Control Board decision.

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (PEER) v. TENNESSEE WATER QUALITY CONTROL BOARD, ET AL. (Tenn. Ct. App. June 10, 2009)

Upon review under the Uniform Administrative Procedures Act, the trial court affirmed the decision of the Water Quality Control Board upholding the decision of the Tennessee Department of Environment and Conservation to approve Waste Management's application for a permit to expand a landfill into a mitigation wetlands area. Petitioner appeals. We dismiss the appeal for lack of standing and as moot.
 

Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/peer_061109.pdf

Court examines whether lost rent claim is speculative; perfected security interest; lease/disguised security agreement

METRO CONSTRUCTION CO., LLC v. SIM ATTRACTIONS, LLC, ET AL. (Tenn. Ct. App. June 9,2009)

This case originated with a mechanic's and materialman's lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest.

The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/construction_060909.pdf