BRIAN DALE, single; BRIAN LAWHORN and wife, PAMELA LAWHORN; and WILLIAM JENKINS and wife, ELAINE JENKINS v. B & J ENTERPRISES, ET AL. (Tenn. Ct. App. May 10, 2012)
Homeowners filed this lawsuit against various individuals and entities shortly after purchasing their homes, when they discovered that their properties are affected by numerous sink holes. Original defendants identified a surveyor as a comparative tortfeasor, and the homeowners amended their complaint to add the surveyor as a defendant.
The surveyor filed a motion to dismiss, arguing that the homeowners’ claims were barred by Tennessee Code Annotated section 28-3-114, which provides that all actions to recover damages against any person engaged in the practice of surveying for any deficiency, defect, omission, error or miscalculation shall be brought within four years from the date the survey is recorded on the plat, or else be forever barred. The trial court granted the motion to dismiss. Plaintiffs were subsequently granted permission by the trial court and this Court to pursue an interlocutory appeal. Finding that section 28-3-114 governs the homeowners’ claims, we affirm.
Opinion available at:
https://www.tba.org/sites/default/files/daleb_051012.pdf
May 15, 2012
May 09, 2012
Court determines whether a contractor or a homeowner breached a construction contract following a dispute
BOBBY D. WALL v. SELMA CURTIS (Tenn. Ct. App. April 24, 2012
Homeowner and Contractor entered into an agreement for the construction of a new house. The contract provided that no changes would be made to the terms and specifications of the contract without a writing describing the changes signed by both parties. The parties ignored this provision and made changes without preparing change orders. Before the house was completed the parties had a dispute, and the homeowner contracted with someone else to complete her house.
Homeowner alleged Contractor breached the contract by walking off the job and refusing to complete the house, and Contractor alleged Homeowner fired him and told him not to return to her property. Contractor sued Homeowner for breach of contract and sought to recover his damages, which included expenses he incurred for materials and labor that Homeowner refused to pay. Homeowner counterclaimed for breach of contract and sought to recover as damages the amount she paid other contractors to complete her house. The trial court found Homeowner committed the first breach and entered judgment for Contractor in the amount of $21,120.69. Homeowner appealed, arguing the evidence did not support the trial court’s judgment. Concluding the evidence supports the trial court’s findings of fact, we affirm the trial court’s judgment in all respects.
Opinion available at: https://www.tba.org/sites/default/files/wallb_042412.pdf
Homeowner and Contractor entered into an agreement for the construction of a new house. The contract provided that no changes would be made to the terms and specifications of the contract without a writing describing the changes signed by both parties. The parties ignored this provision and made changes without preparing change orders. Before the house was completed the parties had a dispute, and the homeowner contracted with someone else to complete her house.
Homeowner alleged Contractor breached the contract by walking off the job and refusing to complete the house, and Contractor alleged Homeowner fired him and told him not to return to her property. Contractor sued Homeowner for breach of contract and sought to recover his damages, which included expenses he incurred for materials and labor that Homeowner refused to pay. Homeowner counterclaimed for breach of contract and sought to recover as damages the amount she paid other contractors to complete her house. The trial court found Homeowner committed the first breach and entered judgment for Contractor in the amount of $21,120.69. Homeowner appealed, arguing the evidence did not support the trial court’s judgment. Concluding the evidence supports the trial court’s findings of fact, we affirm the trial court’s judgment in all respects.
Opinion available at: https://www.tba.org/sites/default/files/wallb_042412.pdf
May 08, 2012
Court reviews whether damages were asses based on a contractual standard of workmanship or an implied warranty of workmanship
CONSULTING AND FINANCIAL SERVICES, INC., ET AL. v. JOHN H. FRIEDMANN, SR. (Tenn. Ct. App. April 23, 2012)
This suit arises as a result of the installation of tile flooring in a home. Homeowners sued the contractor for breach of warranty, breach of contract, and unjust enrichment. The trial court awarded $106,103.92 to homeowners and assessed $4,252.00 in discretionary costs.
Contractor appeals asserting that, in finding liability, the trial court failed to apply the standard of performance set forth in the contract and that the court erred in calculating and measuring the damages. We have determined that the trial court applied an implied warranty or workmanship rather than the contractual standard; however we have reviewed the evidence de novo and modify the judgment to hold that the contractor breached the contractual standard. We remand the case for a determination of the appropriate amount of damages.
Opinion available at: https://www.tba.org/sites/default/files/consulting_042312.pdf
This suit arises as a result of the installation of tile flooring in a home. Homeowners sued the contractor for breach of warranty, breach of contract, and unjust enrichment. The trial court awarded $106,103.92 to homeowners and assessed $4,252.00 in discretionary costs.
Contractor appeals asserting that, in finding liability, the trial court failed to apply the standard of performance set forth in the contract and that the court erred in calculating and measuring the damages. We have determined that the trial court applied an implied warranty or workmanship rather than the contractual standard; however we have reviewed the evidence de novo and modify the judgment to hold that the contractor breached the contractual standard. We remand the case for a determination of the appropriate amount of damages.
Opinion available at: https://www.tba.org/sites/default/files/consulting_042312.pdf
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