Court reviews Consumer Protection Act and Breach of Warranty claims against a builder

MARK T. WICKHAM v. SOVEREIGN HOMES, LLC (Tenn. Ct. App. September 25, 2012)

Plaintiff homeowner brought an action against Defendant builder alleging, inter alia, breach of warranty and violation of the Tennessee Consumer Protection Act. The trial court awarded summary judgment to Defendant builder. We affirm summary judgment on Plaintiff’s breach of warranty claim; reverse summary judgment on Plaintiff’s Consumer Protection Act claim; and remand for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/wickhamm_092512.pdf

Court reviews the ripeness of a case involving a wastewater permit

E. RON PICKARD and LINDA PICKARD, as TRUSTEES OF THE SHARON CHARITABLE TRUST and as INDIVIDUALS v. TENNESSEE DEPARTMENT of ENVIRONMENT AND CONSERVATION, TENNESSEE WATER QUALITY CONTROL BOARD and TENNESSEE MATERIALS CORPORATION (Tenn. Ct. App. September 5, 2012)

The Tennessee Department of Environment and Conservation issued a draft permit allowing a proposed rock quarry to discharge storm water and wastewater into a nearby creek.

Owners of property allegedly affected by the discharge filed a declaratory order petition with the Water Quality Control Board, seeking a declaration construing the rules regarding the protection of existing uses of waters. The Water Quality Control Board dismissed the petition as not ripe. The Tennessee Department of Environment and Conservation subsequently issued a final permit to the quarry and the property owners filed both a permit appeal and another declaratory order petition with the Water Quality Control Board.

The Water Quality Control Board again dismissed the declaratory order petition. The property owners subsequently filed a petition for a declaratory judgment in the Davidson County Chancery Court. The Water Quality Control Board and the Tennessee Department of Environment and Conservation argued that the petition was not ripe and that the property owners had not exhausted their administrative remedies. In addition, the Water Quality Control Board and the Tennessee Department of Environment and Conservation argued that Tennessee Code Annotated Section 69-3-105(i) precluded the property owners from bringing a declaratory order petition prior to issuance of a permit. The trial court ruled in favor of the property owners and issued a declaratory judgment on the construction of Tennessee Compiled Rule and Regulation 1200-04-03-.06.

We affirm the trial court’s rulings with regard to ripeness, exhaustion of administrative remedies, and Tennessee Code Annotated Section 69-3-105(i), but reverse the grant of summary judgment on the construction of Tennessee Compiled Rule and Regulation 1200-04-03-.06 and remand for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/pickarde_090512.pdf

Court reviews whether a chancery court lacked jurisdiction in a case involving a wastewater permit

E. RON PICKARD and LINDA PICKARD, as TRUSTEES OF THE SHARON CHARITABLE TRUST and as INDIVIDUALS v. TENNESSEE DEPARTMENT of ENVIRONMENT AND CONSERVATION, TENNESSEE WATER QUALITY CONTROL BOARD and TENNESSEE MATERIALS CORPORATION (Tenn. Ct. App. August 15, 2012)

The Tennessee Department of Environment and Conservation issued a permit allowing a proposed rock quarry to discharge storm water and wastewater into a nearby creek. Owners of property allegedly affected by the discharge filed an appeal challenging the issuance of the permit with the Water Quality Control Board, as well as a petition seeking a declaratory order construing the rules regarding the protection of existing uses of waters. The Water Quality Control Board refused to issue a declaratory order and the property owners appealed to the Davidson County Chancery Court. Because we conclude that the trial court lacked jurisdiction to grant the relief requested, we vacate the judgment of the trial court and remand for dismissal of this cause. Vacated and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/pickarde_081512.pdf

Court addresses whether a property developer or a county owns a road on which a motorcycle accident occurred

TIMOTHY KLEIN and ANGELA KLEIN v. HARDIN COUNTY, TENNESSEE, ET AL. (Tenn. Ct. App. August 16, 2012)

This is an appeal from the grant of summary judgment in favor of Appellee, a property developer. The underlying case is for personal injuries sustained by Plaintiffs in a motorcycle accident, which was allegedly caused by a pothole in the road. The question presented for determination is, as between Appellee and Appellant Hardin County, who owns the portion of the road where the accident occurred. After completing its development, Appellee dedicated portions of the roadway to Hardin County for public use. However, in cross-motions for summary judgment the Appellee and Appellant each claimed that the other owned the disputed portion of the road where the accident occurred.

Although the disputed portion of the road was specifically excluded from the dedication, and Appellee maintained the road, the trial court determined that Appellee had implicitly dedicated the disputed portion to Appellant and granted summary judgment in favor of Appellee developer. Based upon the evidence in record, we conclude that reasonable minds could reach different conclusions concerning ownership of the road and accordingly, reverse the grant of summary judgment.

Opinion available at:
https://www.tba.org/sites/default/files/kleint_081612.pdf

Court determines the priority of two liens--a mechanic's lien and a deed of trust

ANCHOR PIPE COMPANY, INC. v. SWEENEY-BRONZE DEVELOPMENT, LLC ET AL. (Tenn. Ct. App. August 3, 2012)

This appeal concerns the priority of two liens, a mechanic’s lien and a bank’s deed of trust. We have determined that the trial court erred in granting summary judgment in favor of the bank. We have further determined that the mechanic’s lien is entitled to priority and that the trial court erred in failing to grant summary judgment on that issue.

Opinion available at:
https://www.tba.org/sites/default/files/anchorpipe_080312.pdf

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