Court reviews a challenge to Lawrence County's decision to contract with another proposer for solid waste management

WASTE SERVICES OF DECATUR, LLC V. COUNTY OF LAWRENCE, ET AL. (Tenn. Ct. App. August 15, 2012)

Losing proposer for solid waste management services challenges Lawrence County’s decision to contract with another proposer. Because we find that the County acted arbitrarily and illegally in making its decision, we reverse the decision of the trial court and remand for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/wasteservices_081512.pdf

Court reviews whether a bank had a duty to inspect construction prior to disbursing funds

JIM SUZICH v. FRANK BOOKER and wife, BEVERLY BOOKER and JOHN S. BOMAR, Trustee, KATIE WINCHESTER, Trustee, and FIRST CITIZENS NATIONAL BANK (Tenn. Ct. App. July 27, 2012)

This appeal involves a construction loan obtained by the plaintiffs for the construction of a new home. The loan proceeds were exhausted prior to the completion of the home. The plaintiffs then sued the lender bank for breach of contract, alleging that the bank had a duty to inspect the construction prior to disbursing funds, and that its failure to complete inspections resulted in improper disbursement of the loan funds. The trial court granted summary judgment to the bank upon concluding that the bank had no contractual duty to inspect the construction of the residence. The plaintiffs appealed. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/suzichj_072712.pdf

Court reviews a case against Blount County for flood damage caused by a school construction project

CHARLES RAYMOND LOVEDAY ET AL. v. BLOUNT COUNTY, TENNESSEE ET AL. (Tenn. Ct. App. July 24, 2012)

Charles Raymond Loveday and his wife, Virginia Hope Loveday (collectively “the Plaintiffs”), filed this action in January 2011 against Blount County and the Blount County School Board (collectively “the Defendants”) to recover for flood damage to their property allegedly caused by the construction of a new school next to the Plaintiffs’ property. The school was built in 2007. The Plaintiffs allegedly sustained “permanent” damage in 2008, 2009 and 2010. The Defendants filed a motion to dismiss asserting that the action was barred by the statute of limitations for a taking. The trial court granted the motion. The Plaintiffs appeal. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/lovedayc_072412.pdf

Court reviews whether a homeowner's septic tanks violated the restrictive covenants of his subdivision

ROGER D. ROACH, et al., v. DON BUNCH, et al. (Tenn. Ct. App. July 23, 2012)

Plaintiffs who own homes in Mallard Baye subdivision, brought this action against defendants who had constructed a septic system on several of the residential lots serving other properties, alleging that defendants acted in violation of the restrictive covenants of their subdivision. Following a bench trial, the Trial Court held that the defendants' construction of the septic system violated the subdivision restrictive covenants, and the defendants appealed. On appeal, we affirm the Judgment of the Trial Court.

Opinion available at:
https://www.tba.org/sites/default/files/roachr_072312.pdf

Court reviews a claim brought by a contractor against a subcontractor under the statute of repose

THE COUNTS COMPANY, v. PRATERS, INC. (Tenn. Ct. App. June 25, 2012)

Plaintiff, was general contractor for the renovation of a private club, and employed defendant to install flooring at the club. Plaintiff sued defendant to recover damages incurred when plaintiff was sued by the club which obtained judgment for damages against plaintiff for the defective floor, as well as for attorney's fees for defending the action and other expenses. Defendant moved to dismiss the action, relying on the statute of repose, Tenn. Code Ann. §28-3-202. The Trial Court granted defendant's motion and dismissed the action, and plaintiff has appealed. We affirm the Judgment of the Trial Court.

Opinion available at:
https://www.tba.org/sites/default/files/counts_062512.pdf

Court reviews a case involving a municipal construction project in Chattanooga

CITY OF CHATTANOOGA, TENNESSEE, ET AL. v. HARGREAVES ASSOCIATES, INC., ET AL. (Tenn. Ct. App. June 21, 2012)

The plaintiffs in this matter, the city and a redevelopment group, filed this action against the defendant entities involved in the design and construction of a large municipal project on the city’s waterfront. Also named as a defendant was the development manager for the project. The trial court granted summary judgment to the defendants on the basis that the plaintiffs’ lawsuit was barred by the applicable statute of limitations found in Tennessee Code Annotated section 28-3-105. The plaintiffs appeal. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/cityofchatt_062112.pdf

The Dissenting opinion is available at:
https://www.tba.org/sites/default/files/cityofchatt_DISS_062112.pdf

Court reviews whether a home builder failed to construct a home in a workman like manner, in breach of contract, warranty, and the TN Consumer Protection Act

DAN C. RAY ET AL. v. SADLER HOMES, INC. (Tenn. Ct. App. June 15, 2012)

Plaintiff-homeowners filed this action for breach of contract, breach of warranty, and violations of the Tennessee Consumer Protection Act against the builder and seller of their home alleging that the home was not constructed in a workmanlike manner.

Following a bench trial, the trial court found that the defendant breached the contract and the express and implied warranties, and violated the TCPA. The court awarded damages of $90,000 for the diminution in value of the home. The court also held Plaintiffs were entitled to recover their attorney’s fees pursuant to the TCPA.

Defendant appealed arguing that Plaintiffs failed to prove causation, that the trial court erred in awarding damages in the amount of $90,000 for the diminution in value of the home, and erred in finding it violated the TCPA for which the trial court awarded attorney’s fees. We affirm the trial court’s findings as to Plaintiffs’ claims for breach of contract and breach of warranty and affirm the trial court’s determinations as to damages; however, we find the evidence preponderates against the finding of a violation of the TCPA and therefore the trial court erred by awarding Plaintiffs their attorney’s fees.

Opinion available at:
https://www.tba.org/sites/default/files/rayd_061512.pdf

Court reviews a case about a home remodeling involving breach of contract and TN Consumer Protection Act claims

CASE HANDYMAN SERVICE OF TENNESSEE, LLC v. HELEN MARIE HARBEN LEE (Tenn. Ct. App. June 15, 2012)

Homeowner retained Contractor to remodel her residence and paid Contractor two out of three installments as provided in the contract. Homeowner was not satisfied with Contractor’s work and refused to pay the final installment.

Contractor sued for breach of contract and Homeowner filed a counterclaim asserting Contractor breached the contract by failing to perform the job in a workmanlike and reasonable manner. Homeowner also claimed Contractor violated the Tennessee Consumer Protection Act by engaging in unfair and deceptive practices.

The trial court dismissed Contractor’s complaint and held Contractor breached the contract by failing to perform the work in a reasonable and workmanlike manner. The court found Contractor was not liable for double or treble damages under the Tennessee Consumer Protection Act because Homeowner did not prove its deficiencies were intentional or willful.

Homeowner appealed, claiming the trial court erred in denying her motion to amend her counterclaim to assert a claim for rescission and erred in holding Contractor did not violate the Tennessee Consumer Protection Act. We affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/casehandyman_061512.pdf

Court reviews a breach of contract case involving a contractor who performed additional work to install fire dampers

SONG & SONG CORPORATION, and JIN Y. “JIM” SONG, Individually v. FINE ART CONSTRUCTION COMPANY, LLC, ET AL. (Tenn. Ct. App. June 14, 2012)

Property owner hired a general contractor to perform construction work on a commercial building. The parties subsequently discovered that when the building was originally constructed, there were no fire dampers installed in the ductwork. The contractor performed the additional work necessary to install the missing fire dampers, but when the work was completed, the property owner refused to pay the amount invoiced by the contractor for the additional work. Both parties asserted that the other had breached the contract. Following a two-day bench trial, the trial court ruled in favor of the contractor and awarded her a judgment for the unpaid balance and other damages. The property owner appeals. We affirm as modified.

Opinion available at:
https://www.tba.org/sites/default/files/song-song_061412.pdf

Court reviews the dismissal of a case between the town of Pegram and a construction company

THE TOWN OF PEGRAM v. CORNERSTONE DEVELOPMENT, LLC ET AL. (Tenn. Ct. App. June 14, 2012)

Town of Pegram appeals from the trial court’s decision awarding it no damages in its claims against Cornerstone Development, LLC, the company which constructed the Town’s city hall and surrounding parking lot. Pegram also appeals the trial court’s summary dismissal of National Grange Mutual Insurance Company, which provided the performance bond assuring Cornerstone’s performance. We affirm the trial court’s findings in all respects.

Opinion available at:
https://www.tba.org/sites/default/files/Pegram_061412.pdf

Court reviews whether a land surveyor can be held liable for damages incurred by sinkholes

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

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

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

Court reviews a Tennessee Consumer Protection Act claim and other claims in a case involving accusations of negligent construction

MICHAEL L. JOHNSON, ET AL. v. TODD FORD (Tenn. Ct. App. April 12, 2012)

Michael L. Johnson and Tammy K. Johnson (“Plaintiffs”) purchased from Todd Ford (“Defendant”) real property located in Athens, Tennessee containing a house constructed by Defendant (“the House”). Shortly after purchasing the House, Plaintiffs began to experience problems with a leaking and flooding basement.

Plaintiffs sued Defendant alleging, among other things, breach of contract, negligent construction, misrepresentation, and violations of the Tennessee Consumer Protection Act. Prior to trial, the Trial Court partially granted Plaintiffs’ motion for summary judgment finding that Defendant had violated the Tennessee Consumer Protection Act. The Trial Court held, however, that whether the violation caused damages to Plaintiffs would be submitted to the jury for its determination.

After a jury trial, the Trial Court entered judgment upon the jury’s verdict finding and holding, inter alia, that Defendant breached the parties’ contract, and that Plaintiffs were awarded compensatory damages of $50,000 for the breach. The Trial Court also awarded Plaintiffs their attorney’s fees and discretionary costs.

Plaintiffs appeal to this Court raising issues regarding the jury’s failure to find in Plaintiffs’ favor with regard to the claims of misrepresentation, damages for Defendant’s violation of the Tennessee Consumer Protection Act, punitive damages, and rescission, among other things. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/johnsonm_041212.pdf

Court reviews whether plaintiff sufficiently established a cause of action to entitle it to a mechanic's lien on the property.

HEFFERLIN + KRONENBERG ARCHITECTS, PLLC, v. CLP DEVELOPMENT, LLC, et al. (Tenn. Ct. App. April 9, 2012)

Plaintiff brought this action claiming, inter alia, that it was entitled to a mechanics' lien on the subject property. Defendant filed Motions to Dismiss, one ground being that the Complaint failed to state a cause of action. The Trial Court subsequently ruled that the Complaint did not establish a cause of action to entitle plaintiff to a lien on the property.

Plaintiff has appealed and we hold that upon review of the Complaint, and applying the rules governing the test of the sufficiency of the allegations in the Complaint, that the Complaint states a cause of action. We vacate the Trial Court's Judgment and remand for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/hefferlinpllc_040912.pdf