Sara J. and Jerry H. Malone v. First Capital Home Improvements ( 2001 )


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  •                     IN THE COURT OF APPEALS OF TENNESSEE
    WESTERN SECTION AT JACKSON
    SARA J. And JERRY H. MALONE,              )       From the Madison County Circuit Court
    )       at Jackson, Tennessee
    Plaintiffs/Appellees,              )
    )       The Hon. Franklin Murchison, Judge
    vs.                                       )
    )       Trial Court No. C95-305
    )       Appeal No. 02A01-9704-CV-00091
    )
    FIRST CAPITAL HOME                        )
    IMPROVEMENTS,                             )       AFFIRMED
    )
    Defendant/Appellant.               )
    )       Ted M. Hunderup
    )       Humboldt, Tennessee
    )       Attorney for Appellant
    )
    )       J. B. Glassman
    )       Jackson, Tennessee
    )       Attorney for Appellees
    MEMORANDUM OPINION
    HIGHERS, J.
    Defendant First Capital Home Improvements appeals the trial court’s judgment
    entered in favor of Plaintiffs/Appellees Sara J. Malone and Jerry H. Malone in this breach
    of contract action. We affirm.
    In September 1992, the Malones contracted with First Capital to make various
    improvements and repairs to the Malones’ house, the most important of which was a new
    roof. The first time it rained after First Capital’s completion of the work, the Malones’ new
    roof leaked. Over a period of months, the Malones contacted First Capital and expressed
    their dissatisfaction with the roof and with other repairs that First Capital had made to the
    Malones’ house. In February 1993, First Capital sent Jim Bowers to the Malones’ house
    to fix their roof. Bowers’ efforts to repair the roof were unsuccessful, however, as were his
    later efforts in April or May 1993. The Malones subsequently filed this breach of contract
    action against First Capital in September 1995.
    After the Malones filed this action, the parties made one last effort to resolve their
    dispute. First Capital sent another contractor, Ian Lopez, to the Malones’ house to repair
    the roof and to repair other problems of which the Malones had complained. When Lopez
    and his crew completed their work, Lopez asked Jerry Malone to sign a completion form
    signifying his satisfaction with the work, but Malone refused. Accordingly, the parties
    proceeded to trial on the Malones’ breach of contract claim.
    At trial, Lopez testified that Jerry Malone had interfered with First Capital’s efforts
    to make repairs to the house and had made performance of the contract impossible. Lopez
    testified that Malone exhibited erratic behavior, at times cursing the work crew and ordering
    them off the property. According to Lopez, Malone would appear cooperative and satisfied
    with Lopez’s work one day, but then the following day he would change his mind as to how
    he wanted the work performed.
    Both of the Malones testified at trial concerning First Capital’s failure to satisfactorily
    complete the work on their house. Jerry Malone specifically denied engaging in any
    behavior which had obstructed Lopez’s efforts to make repairs to the house. In spite of
    First Capital’s efforts, at the time of trial, the Malones’ roof still leaked. In fact, the roof
    leaked even worse than it did before First Capital’s installation of the roof. The leaking roof
    had caused damage to the Malones’ walls, ceilings, carpets, and furniture.
    At the trial’s conclusion, the trial court entered a judgment awarding the Malones the
    sum of $12,882. The trial court found that First Capital “failed to satisfactorily perform
    under the contract” and that the Malones “were not guilty of contributing fault.” On appeal,
    First Capital raises the sole issue of whether the trial court erred in failing to find that the
    Malones breached the contract by making First Capital’s performance impossible.
    We conclude that this issue is without merit and, thus, affirm the trial court’s
    judgment.1 Inasmuch as this case was tried by the trial court sitting without a jury, this
    1
    In affirming the trial court’s judgment, we reject the Malones’ argument that the
    trial court should have awarded them an additional $5,456.69 in damages.
    2
    court’s review on appeal is de novo upon the record, accompanied by a presumption that
    the trial court’s findings of fact are correct. Roberts v. Robertson County Bd. of Educ., 
    692 S.W.2d 863
    , 865 (Tenn. App. 1985); Haverlah v. Memphis Aviation, Inc., 
    674 S.W.2d 297
    ,
    300 (Tenn. App. 1984); T.R.A.P. 13(d). Under this standard of review, we must affirm the
    trial court’s decision unless the trial court committed an error of law affecting the result or
    unless the evidence preponderates against the trial court’s findings. Roberts, 
    692 S.W.2d at 865
    . Applying the foregoing standard, we hold that the evidence does not preponderate
    against the trial court’s findings that First Capital breached the subject contract and that
    the Malones did not contribute to this breach. The evidence showed that the Malones’ new
    roof leaked the first time it rained after First Capital’s completion of the work. At the time
    of the trial over two years later, the Malones’ roof still leaked despite First Capital’s
    numerous attempts to repair it.
    In affirming the trial court’s judgment, we recognize that the evidence was disputed
    as to whether Jerry Malone interfered with Ian Lopez’s efforts to repair the Malones’ house.
    We note, however, that when a conflict in testimony requires the trial court to make a
    determination regarding the credibility of a witness or witnesses, such a determination is
    “binding on the appellate court unless from other real evidence the appellate court is
    compelled to conclude to the contrary.” Hudson v. Capps, 
    651 S.W.2d 243
    , 246 (Tenn.
    App. 1983). After carefully reviewing the evidence presented below, we are not compelled
    to reach a different result. Moreover, we note that First Capital’s earlier efforts to repair the
    house also were unsuccessful, and there were no allegations that Jerry Malone was in any
    way responsible for the failure of these earlier efforts.
    The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed
    to First Capital, for which execution may issue if necessary.
    HIGHERS, J.
    3
    CONCUR:
    CRAWFORD, P.J., W.S.
    LANIER, Sp. J.
    4
    

Document Info

Docket Number: 02A01-9704-CV-00091

Judges: Judge Alan E. Highers

Filed Date: 7/18/2001

Precedential Status: Precedential

Modified Date: 10/30/2014