MARK BREWER ET AL. v. KITCHEN DESIGNS AND CABINETRY ET AL. (Tenn. Ct. App. April 8, 2013)
General contractor filed breach of contract action against homeowners, alleging the homeowners failed to pay invoices on an extensive home renovation project. The homeowners denied there were outstanding invoices and filed counterclaims for breach of contract and violation of the Tennessee Consumer Protection Act against the general contractor and its owner, in his individual capacity, who contractually agreed to supervise the project for an additional fee. The homeowners alleged the general contractor failed to perform the contract in a workmanlike manner; they also asserted a claim against the owner asserting that he agreed to personally supervise the project for a percentage of the contract and that he breached his agreement by failing to properly supervise the work.
The trial court, Judge Barbara Haynes presiding, awarded summary judgment to the homeowners on all claims and counterclaims. On the homeowners’ counterclaims, Judge Haynes also awarded treble damages, attorney’s fees, and costs, pursuant to the Tennessee Consumer Protection Act. The counter-defendants filed a motion to alter or amend the decision as to the counterclaims; however, Judge Haynes retired before ruling on the motion. The case was then assigned to Judge Hamilton Gayden and, following a hearing, he denied the motion to alter or amend.
The counter-defendants appealed. We affirm the summary dismissal of the general contractor’s breach of contract claim for it is undisputed the homeowners paid the contract amount in full.
As for the homeowners’ counterclaims, we affirm the grant of summary judgment in favor of the homeowners on their breach of contract claim against the general contractor and the award of damages for failing to perform the contract in a workmanlike manner.
We also affirm the grant of summary judgment in favor of the homeowners against the supervisor for failing to properly supervise the work; however, we find the evidence insufficient to establish the damages that proximately resulted from the supervisor’s breach as distinguished from the damages resulting from the general contractor’s breach.
As for the homeowners’ claims that the general contractor and the supervisor violated the Tennessee Consumer Protection Act, we have determined there are material facts in dispute concerning whether the contractor or the supervisor used or employed unfair or deceptive acts or practices in violation of the TCPA; therefore, summary judgment as to the TCPA claims was not appropriate.
We, therefore, reverse the grant of summary judgment on the TCPA claims as to the contractor and the supervisor and remand these claims, and the determination of damages for failing to properly supervise, for further proceedings.
Opinion available at:
https://www.tba.org/sites/default/files/brewerm_040813.pdf
April 17, 2013
March 10, 2013
Court Reviews Application of Surveyor's Statute of Repose
ISLAND PROPERTIES ASSOCIATES v. THE REAVES FIRM, INC., d/b/aREAVES, SWEENEY, AND MARCUM, ET AL. (Tenn. Ct. App. March 6, 2013)
This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part.
The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error.
We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals.
Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.
Opinion available at:
https://www.tba.org/sites/default/files/islandproperties_030613.pdf
This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part.
The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error.
We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals.
Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.
Opinion available at:
https://www.tba.org/sites/default/files/islandproperties_030613.pdf
March 08, 2013
Court reviews two claims of surveyor negligence
ISLAND PROPERTIES ASSOCIATES v. THE REAVES FIRM, INC., d/b/a REAVES, SWEENEY, AND MARCUM, ET AL. (Tenn. Ct. App. March 6, 2013)
This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error.
We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals.
Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.
Opinion available at:
https://www.tba.org/sites/default/files/islandproperties_030613.pdf
This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error.
We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals.
Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.
Opinion available at:
https://www.tba.org/sites/default/files/islandproperties_030613.pdf
March 01, 2013
Court reviews an agreement between contractors and subcontractors regarding the allocation of damages in a claim against the owner of a construction project
SULLIVAN ELECTRIC, INC. v. ROBINS & MORTON CORPORATION (Tenn. Ct. App. February 28, 2013)
A subcontractor on a large project in Texas sued the general contractor claiming the general contractor breached an agreement the parties made regarding claims both had against the owner of the Texas project. The parties agreed the subcontractor would be entitled to a pro rata share of the settlement or judgment amount if the subcontractor’s claims were not itemized.
The settlement agreement between the general contractor and the owner did not include an itemization of the subcontractor’s claims. The subcontractor had been given a prepayment of its claim against the owner in the amount of $300,000, and applying this to the subcontractor’s pro rata share, the general contractor determined the subcontractor was not entitled to anything more.
The trial court deducted the $300,000 from the subcontractor’s claim and awarded the subcontractor its pro rata share of the difference. Both the subcontractor and general contractor appealed, the subcontractor claiming it was not awarded enough and the general contractor claiming the subcontractor was awarded too much.
We reverse the trial court’s award and hold the $300,000 the subcontractor received as a prepayment was more than it was entitled to pursuant to the terms of the parties’ agreement. Accordingly, the contractor did not breach its agreement, and the subcontractor was not entitled to any damages.
Opinion available at:
https://www.tba.org/sites/default/files/sullivan_022813.pdf
A subcontractor on a large project in Texas sued the general contractor claiming the general contractor breached an agreement the parties made regarding claims both had against the owner of the Texas project. The parties agreed the subcontractor would be entitled to a pro rata share of the settlement or judgment amount if the subcontractor’s claims were not itemized.
The settlement agreement between the general contractor and the owner did not include an itemization of the subcontractor’s claims. The subcontractor had been given a prepayment of its claim against the owner in the amount of $300,000, and applying this to the subcontractor’s pro rata share, the general contractor determined the subcontractor was not entitled to anything more.
The trial court deducted the $300,000 from the subcontractor’s claim and awarded the subcontractor its pro rata share of the difference. Both the subcontractor and general contractor appealed, the subcontractor claiming it was not awarded enough and the general contractor claiming the subcontractor was awarded too much.
We reverse the trial court’s award and hold the $300,000 the subcontractor received as a prepayment was more than it was entitled to pursuant to the terms of the parties’ agreement. Accordingly, the contractor did not breach its agreement, and the subcontractor was not entitled to any damages.
Opinion available at:
https://www.tba.org/sites/default/files/sullivan_022813.pdf
January 30, 2013
Court reviews whether the residential information of third-party contractors are exempt from disclosure under the Public Records Act
MARTIN D. “RED” PATTERSON, AS A CITIZEN OF THE STATE OF TENNESSEE, AND AS BUSINESS MANAGER OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 369, ET AL. v. THE CONVENTION CENTER AUTHORITY OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY (Tenn. Ct. App. January 28, 2013)
Respondent Convention Center Authority appeals the trial court’s determination that the residential addresses of employees of third-party contractors contained in payroll records submitted by the contractors to the Convention Center Authority are not exempt from disclosure under the Tennessee Public Records Act. Petitioners cross-appeal the trial court’s denial of their request for attorney’s fees and costs. We affirm the trial court’s judgment.
Opinion available at:
https://www.tba.org/sites/default/files/pattersonm_011813.pdf
Respondent Convention Center Authority appeals the trial court’s determination that the residential addresses of employees of third-party contractors contained in payroll records submitted by the contractors to the Convention Center Authority are not exempt from disclosure under the Tennessee Public Records Act. Petitioners cross-appeal the trial court’s denial of their request for attorney’s fees and costs. We affirm the trial court’s judgment.
Opinion available at:
https://www.tba.org/sites/default/files/pattersonm_011813.pdf
January 10, 2013
Court reviews whether plaintiff was barred from filing suit against his home inspector
DAVID DESGRO v. PAUL PACK d/b/a RESI CHEK (Tenn. Ct. App. January 8, 2013)
Plaintiff, David Desgro, alleged that he hired defendant, Paul Pack d/b/a Resi Chek, to perform an inspection on a house plaintiff wanted to purchase. After defendant inspected the house and reported the house had no major problems, plaintiff purchased the house in reliance on defendant’s report. Plaintiff claims that he then discovered multiple serious issues with the house, including plumbing problems, insulation and heat pump problems, and inadequate floor support.
Plaintiff filed suit 13 months after the inspection was completed, and defendant moved for summary judgment, claiming that plaintiff’s signed contract with defendant provided that plaintiff must file suit on any claims within one year of the date of inspection. The trial court found that plaintiff signed such an agreement and that the contractual limitations period of one year was reasonable. The trial court granted summary judgment to defendant, ruling that plaintiff’s claims were untimely. Plaintiff appeals. We affirm.
Opinion available at:
https://www.tba.org/sites/default/files/desgrod_010813.pdf
Plaintiff, David Desgro, alleged that he hired defendant, Paul Pack d/b/a Resi Chek, to perform an inspection on a house plaintiff wanted to purchase. After defendant inspected the house and reported the house had no major problems, plaintiff purchased the house in reliance on defendant’s report. Plaintiff claims that he then discovered multiple serious issues with the house, including plumbing problems, insulation and heat pump problems, and inadequate floor support.
Plaintiff filed suit 13 months after the inspection was completed, and defendant moved for summary judgment, claiming that plaintiff’s signed contract with defendant provided that plaintiff must file suit on any claims within one year of the date of inspection. The trial court found that plaintiff signed such an agreement and that the contractual limitations period of one year was reasonable. The trial court granted summary judgment to defendant, ruling that plaintiff’s claims were untimely. Plaintiff appeals. We affirm.
Opinion available at:
https://www.tba.org/sites/default/files/desgrod_010813.pdf
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