GSB Contractors, Inc. v. Harry F. Hess, Jr. and Connie Hess ( 2005 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 17, 2004 Session
GSB CONTRACTORS, INC. v. HARRY F. HESS, JR. and CONNIE HESS
Direct Appeal from the Circuit Court for Shelby County
No. CT-001544-00 Robert A. Lanier, Judge
No. W2003-03068-COA-R3-CV - Filed April 15, 2005
Following a hail storm which severely damaged the Appellees’ home, the Appellee contracted with
the Appellant, a construction contractor, to repair the damage. The Appellees’ insurance policy
covered the damage done to the home by the hail storm, but the Appellees entered into a collateral
agreement with the Appellant to do additional work to the home. The insurance company paid for
all work done by the Appellant in repairing the damage from the storm, but the Appellees refused
to pay the balance due on work completed under the collateral agreement citing poor workmanship
by the Appellant’s subcontractors. The Appellant subsequently filed suit against the Appellees in
general sessions court seeking to recover the balance owed. Following a judgment in favor of the
Appellant, the Appellees appealed to the circuit court and filed a counterclaim against the Appellant.
Following a trial, the circuit court ruled in favor of the Appellees. In proving their damages, the
Appellees presented the testimony of two expert witnesses at trial. The circuit court ruled that the
proper measure of damages was the cost of repairing the defective work. The Appellant filed an
appeal to this Court contesting the trial court’s selection of “cost of repair” as the appropriate
measure of damages in this case, as well as the trial court’s evidentiary rulings regarding certain
testimony. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.
Michael R. Tucker, Memphis, TN, for Appellant
Anthony C. Pietrangelo, Memphis, TN, for Appellees
OPINION
I.
FACTUAL BACKGROUND AND PROCEDUR AL HISTORY
Harry F. Hess (“Mr. Hess”) and Connie Hess (collectively with Mr. Hess, the “Homeowners”
or “Appellees”) purchased their present home, which was constructed in 1982 and is located in
Lakeland, Tennessee, in March of 1989 for $285,000.00. In May of 1998, a severe hail storm caused
damage to the home, particularly to the roof, chimney, skylights, windows, screen doors, cedar
siding, decks, and awning. The Homeowners’ insurance policy, held with West American Insurance
Company (“West American”), covered the damage to their home. Accordingly, the Homeowners
filed a claim with West American for the hail damage. The Homeowners, dissatisfied with the first
contractor selected to repair the damage to their home, selected GSB Contractors, Inc. (“GSB” or
“Appellant”), a Tennessee corporation based in Memphis, Tennessee, to perform the repair work.
By letter dated June 30, 1998, GSB provided the Homeowners with an itemized estimate
totaling $58,040.41, which represented the cost of repairing the home. GSB and the Homeowners
entered into an agreement that same month, and GSB began working on the home several weeks
later. Around December 30, 1998, GSB presented the Homeowners with an invoice in the amount
of $44,129.63 for repairs done to the home up to that point in time. West American issued a check
designated for “partial draw for hail damage restoration to dwelling,” paying the invoice in full.
Around January of 1999, the Homeowners and GSB entered into a collateral agreement
calling for GSB to perform additional work on the Homeowners’ home at the Homeowners’ own
expense. Apparently, West American had agreed only to fix the damage done to two sides of the
Homeowners’ home. In addition to other projects, the Homeowners asked GSB to replace the siding
on the other two sides of the home so the entire house would have a uniform appearance. On
January 5, 1999, GSB submitted another invoice to the Homeowners in the amount of $20,111.52
for the additional work done to the home. That same month, the Homeowners issued a check drawn
on their personal account to GSB in the amount of $12,000.00. On August 16, 1999, West American
submitted another check to GSB in the amount of $21,351.65 designated for “final draw for hail
damage restoration to dwelling.”
During the course of their relationship, the Homeowners expressed their dissatisfaction with
the work being done by GSB. In some instances, GSB, at the request of Mr. Hess, had its
subcontractors re-install or redo some of the work already completed on the home. The
Homeowners, dissatisfied with the work performed by GSB, refused to pay the remaining balance
owed for the additional work they requested. In March of 2002, GSB filed suit in the General
Sessions Court of Shelby County seeking to recover the outstanding balance in the amount of
$8,461.62. The general sessions court ruled in favor of GSB, and the Homeowners filed an appeal
to the Circuit Court of Shelby County. In the circuit court, the Homeowners filed a counterclaim
against GSB alleging breach of contract, negligence, and misrepresentation. Additionally, the
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Homeowners filed a third-party complaint against West American alleging causes of action for
breach of contract, indemnity, and promissory estoppel. After answering the third-party complaint,
West American subsequently filed a motion to amend its answer to add a cross-claim against GSB
for indemnity. Shortly thereafter, the Homeowners entered a voluntary non-suit against West
American.1
During the course of the four day trial, the Homeowners presented evidence to prove that the
work performed by GSB was unworkmanlike, necessitating the need for corrective work to the
home. Conversely, GSB contended that all of the work performed by subcontractors working for
GSB was performed in a workmanlike manner, and, in an attempt to satisfy the Homeowners, some
of the work had been redone. The trial court, sitting without a jury, entered its judgment on
November 14, 2003, in favor of the Homeowners, finding:
The plaintiff has been paid, either by Defendant’s insurance company
or by Defendants, all but $8,461.62 of the contract figures.
Defendants, on the other hand, offer evidence that it will cost
$137,717.45 to correct the defective workmanship performed by the
plaintiff. They deny, therefore, that they owe the plaintiff any
amount, and seek the aforesaid sum as their damages.
Although Defendants mention that part of their action is based
upon allegations of negligence, in addition to breach of contract, the
Court is of the opinion that, no matter how this case is viewed, it is
one for breach of contract and not negligence. Where a contractor
fails to perform in a workmanlike manner, the cost of repairing the
deficient work is the proper measure of damages, since the owner of
the building is entitled to proper performance of the contract. Repair
of deficient work may involve both additional activities necessitated
by the deficient work and activities previously omitted, to proper
performance in a workmanlike manner. McCray vs. Clinton County,
125 Ohio App. 3d 521, 708 N.E.2d 1075 (1998). Similarly, the
plaintiffs’ action is one for breach of contract to pay for the work
which was performed. The evidence shows that the plaintiff made
several attempts to satisfy the defendants when presented with
complaints about the workmanship performed by the plaintiff’s
subcontractors. It further shows, that the plaintiffs, especially Mr.
Hess, were very particular about their house being properly repaired.
There is a strong undercurrent in the evidence suggesting that the
plaintiff regarded the defendant, Mr. Hess, as a chronic complainer,
seeking more than he was entitled to. On the other hand, the evidence
1
The record does not contain any ruling by the trial court on W est American’s motion. It is apparent, however,
that, when the Ho meow ners dismissed their third-party complaint against W est American, there was no longer a need
for West American to seek indemnification from GSB.
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also shows that he had a nice home and was concerned that it be
properly repaired.
Although there was conflicting evidence on most questions,
the Court finds that the preponderance of the evidence is that the
plaintiffs’ subcontractors, (and, therefore, the plaintiff) did not
perform most of their work in a good and workmanlike manner. . . .
There are a number of particulars, however, in which the defendants
and counter-plaintiffs have failed to carry the burden of proof in order
to entitle them to damages.
....
From the foregoing, therefore, the Court finds that the
damages estimate by the Defendant’s proposed contractor is
excessive by $61,246.18, resulting in damages to the defendants of
$76,471.27, which they are entitled to recover.
The trial court went on to provide that GSB should recover nothing in this case.
GSB subsequently filed an appeal to this Court. After reviewing the briefs submitted by the
parties and hearing oral argument, we are of the opinion that all of the issues presented by the
Appellant in this appeal fall into one of the following categories:
I. Whether the trial court erred in determining the proper measure of damages to be the cost of
repairing the deficient work performed by the Appellant; and
II. Whether the trial court erred in either admitting or excluding certain evidence related to
proving the Appellees’ damages.
For the reasons set forth more fully herein, we affirm the trial court’s ruling.
II.
LAW AND ANALYSIS
On appeal, GSB argues that the trial court erred in using the cost of repairing the
Homeowners’ home as the proper measure of damages in this case. In related sub-issues, GSB
argues that the trial court erred in admitting, or failing to admit, certain evidence relating to the
damages issue. We begin our analysis with the appropriate measure of damages in this case and
address the sub-issues raised by the parties as they arise. In addition, the Homeowners are seeking
their costs and attorney’s fees associated with defending this appeal.
A.
Measure of Damages
GSB contends the trial court erred by applying the “cost of repair” as the appropriate measure
of damages when a residential construction contractor fails to perform in a workmanlike manner.
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The trial court, in determining that “cost of repair” was the appropriate measure of damages in this
case, relied on the Ohio Court of Appeals decision in McCray v. Clinton County Home Improvement,
708 N.E.2d 1075 (Ohio Ct. App. 1998), where the court stated:
Where a contractor fails to perform in a workmanlike manner, the
cost of repairing the deficient work is the proper measure of damages
since the owner of the building is entitled to proper performance of
the contract. . . . In order to place a building in the condition
contemplated by the parties at the time of the contract, “repair of
deficient work may involve both additional activities necessitated by
the deficient work, and activities previously omitted, but necessary,
to proper performance in a workmanlike manner.”
McCray, 708 N.E.2d at 1076 (citations omitted). GSB contends that no Tennessee cases have
applied this legal principle to Tennessee contract law. It appears that GSB is arguing that the proper
measure of damages in this case is the “difference-in-value” measure, although GSB cites to no
authority for this proposition. Under this measure, “the owner’s damages are measured by the
difference in the value between the structure as delivered and the structure as contracted for.” John
P. Ludington, Annotation, Modern Status of Rule as to Whether Cost of Correction or Difference
in Value of Structures is Proper Measure of Damages for Breach of Construction Contract, 41
A.L.R. 4th 131 (1985).
In addressing this issue, we are guided by the following:
Determinations concerning the amount of damages are factually
driven. See Loftis v. Finch, 491 S.W.2d 370, 377 (Tenn. Ct. App.
1972). Thus, the amount of damages to be awarded in a particular
case is essentially a fact question. See Sholodge Franchise Sys., Inc.
v. McKibbon Bros., Inc., 919 S.W.2d 36, 42 (Tenn. Ct. App. 1995);
Buice v. Scruggs Equip. Co., 37 Tenn. App. 556, 571, 267 S.W.2d
119, 125 (1953). However, the choice of the proper measure of
damages is a question of law to be decided by the court. See
American Trust Inv. Co. v. Nashville Abstract Co., 39 S.W. 877, 881
(Tenn. Chan. App. 1896); see also Business Men's Assurance Co. v.
Graham, 891 S.W.2d 438, 449 (Mo. Ct. App. 1994); Town of Fifield
v. State Farm Mut. Auto. Ins. Co., 119 Wis. 2d 220, 349 N.W.2d 684,
686 (Wis. 1984).
Beaty v. McGraw, 15 S.W.3d 819, 827 (Tenn. Ct. App. 1998). Thus, in reviewing the trial court’s
selection of a damages measure, we are reviewing the trial court’s conclusions of law. We review
the decisions of the trial court on questions of law de novo with no presumption of correctness. See
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Johnson v. Welch, No. M2002-00790-COA-R3-CV, 2004 Tenn. App. 86, at *26–27 (Tenn. Ct. App.
Feb. 4, 2004); Crowder Constr. Group, LLC v. Holland, No. M2002-01840-COA-R3-CV, 2003
Tenn. App. LEXIS 662, at *8 (Tenn. Ct. App. Sept. 18, 2003).
“The purpose of assessing damages in a breach of contract suit is to place the plaintiff, as
nearly as possible, in the same position he would have had if the contract had been performed.”
Wilhite v. Brownsville Concrete Co., Inc., 798 S.W.2d 772, 775 (Tenn. Ct. App. 1990) (citing Action
Ads, Inc. v. William B. Tanner Co., Inc., 592 S.W.2d 572, 575 (Tenn. Ct. App. 1979); Estate of
Jessee v. White, 633 S.W.2d 767 (Tenn. Ct. App. 1982)); see also Hennessee v. Wood Group
Enterprises, Inc., 816 S.W.2d 35, 37 (Tenn. Ct. App. 1991). For breach of a construction contract,
the courts of the several states have typically applied either the “cost of repair” or the “difference-in-
value” as the proper measure of damages. See John P. Ludington, Annotation, Modern Status of
Rule as to Whether Cost of Correction or Difference in Value of Structures is Proper Measure of
Damages for Breach of Construction Contract, 41 A.L.R. 4th 131 (1985).
In Edenfield v. Woodlawn Manor, Inc., 462 S.W.2d 237 (Tenn. Ct. App. 1970), this Court
cited, with approval, the following general summary of these two damages measures:
[“]As a general rule, the measure of damages is the cost of correcting
the defects or completing the omissions, rather than the difference in
value between what ought to have been done in the performance of
the contract and what has been done, where the correction or
completion would not involve unreasonable destruction of the work
done by the contractor and the cost thereof would not be grossly
disproportionate to the results to be obtained. On the other hand, the
courts generally adhere to the view that if a builder or contractor has
not fully performed the terms of the construction agreement, but to
repair the defects or omissions would require a substantial tearing
down and rebuilding of the structure, the measure of damages is the
difference in value between the work if it had been performed in
accordance with the contract and that which was actually done, or (as
it is sometimes said) the difference between the value of the defective
structure and that of the structure if properly completed. Despite this
latter rule, however, there is some authority to the effect that damages
for a contractor's breach of a contract to construct a dwelling, where
it is not constructed in accordance with the plans and specifications,
are the amount required to reconstruct it to make it conform to such
plans and specifications, rather than the difference in loan or market
value on the finished dwelling, since unlike a commercial structure,
a dwelling has an aesthetic value and must be constructed as the
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owner wants it, even though the finished dwelling may be just as
good." 13 Am.Jur.2nd. pp. 79, 80, 81 Section 79.
Edenfield, 462 S.W.2d at 241. In Edenfield, a residential construction case, we examined a decision
by the Alabama Supreme Court, which provided:
“In regard to the case at bar it may be observed further that a
distinction exists between a contract to construct a dwelling for the
owner who plans to live therein and a contract to construct a
commercial structure where the aesthetic taste of the owner is not so
deeply involved. It seems to us that when an owner contracts to have
a dwelling constructed he wants a particular structure, not just any
structure that could be built for the same price. We, therefore, think
that the trial court was correct in awarding damages equal to the
amount required to reconstruct the dwelling so as to make it conform
to the specifications, rather than adopting the difference in loan value
on the dwelling as the measure of damages, as contended by
appellant.”
Id. (quoting Fox v. Webb, 105 So. 2d 75, 82–83 (Ala. 1958)).
We went on in Edenfield to state, “[w]e think the Alabama Supreme Court’s reason for
applying a different rule to defective construction of a dwelling and defective construction of a
commercial building is a valid one and is applicable in the instant case.” Id. The Homeowners rely
on our reasoning in Edenfield for the proposition that, in cases involving the defective construction
of a residential dwelling, the exclusive measure of damages is “cost of repair.” See Birdwell v.
McKinney, No. 01A01-9701-CV-00023, 1997 Tenn. App. LEXIS 905, at *27 (Tenn. Ct. App. Dec.
17, 1997). To the contrary, the Homeowners have misconstrued our holding in Edenfield. In
Edenfield, we merely noted that, in residential construction cases, a stronger case can be made that
“cost of repair” is the proper measure of damages due to the aesthetic tastes of the owner. Id. at
241–42. Hence, we stated that “consideration for comfort and convenience is one of major
importance in a building constructed as a dwelling place for the owner.” Id. at 241–42.
Our subsequent case law supports the conclusion that “cost of repair” is not the exclusive
measure of damages for breach of a residential construction contract. “Generally, the measure of
damages will be the cost or repair unless the repairs are not feasible or the cost is disproportionate
to the dimunition in value.” Radant v. Earwood, No. 02A01-9802-CV-00029, 1999 Tenn. App.
LEXIS 390, at *20 (Tenn. Ct. App. June 22, 1999) (emphasis added); see also Estate of Jessee v.
White, 633 S.W.2d 767, 769 (Tenn. Ct. App. 1982). When selecting the appropriate measure of
damages applicable in this case, we are mindful of the following:
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As a general rule, the measure of damages for defects and omissions
in the performance of a construction contract is the reasonable cost of
the required repairs. Estate of Jessee v. White, 633 S.W.2d 767
(Tenn. App. 1982). This is especially true when the structure
involved is the owner's home. Edenfield v. Woodlawn Manor, Inc.,
62 Tenn.App. 280, 462 S.W.2d 237 (1970). However, in the event
that the cost of repairs is disproportionate when compared with the
difference in value of the structure actually constructed and the one
contracted for, the diminution value may be used instead as the
measure of damages. Redbud Cooperative Corporation v. Clayton,
700 S.W.2d 551 (Tenn.App. 1985). However, this rule is applicable
only when proof has been offered on both factors. The defendant
argues that plaintiffs were required to offer proof of both factors so
that the jury would be allowed to choose. We hold that the plaintiffs
do not have the burden of offering alternative measures of damages.
The burden is on the defendant to show that the cost of repairs is
unreasonable when compared to the diminution in value due to the
defects and omissions. . . .
Because the burden to produce an alternative measure of
damages was on the defendant who failed to meet that burden, proof
of the cost of repairs alone was a sufficient basis on which to submit
the question of damages to the jury. Therefore the decision of the
trial court must be affirmed. . . .
Nutzell v. Godwin, No. 33, 1989 Tenn. App. LEXIS 485, at *2–3 (Tenn. Ct. App. July 13, 1989)
(emphasis added).
In order for the “difference-in-value” measure to apply in this case, GSB, as the defendant
to the Homeowners’ counterclaim for breach of contract, had the burden of showing “the difference
between the value of the defective structure and that of the structure if properly completed.”
Edenfield, 462 S.W.2d at 288. Our review of the record reveals that, at trial, GSB did not present
any evidence regarding the value of the home if the repairs had been properly completed.
This brings us to a related sub-issue raised by GSB on appeal. GSB argues that the trial court
erred in precluding Mr. Hess from testifying to the current value of his home based on an appraisal
conducted on the home in the Fall of 2003. Mr. Hess did testify, without objection, that the
Homeowners purchased the home for $285,000.00. When counsel for GSB asked Mr. Hess on
cross-examination about the value of the home as stated in the appraisal, counsel for the
Homeowners lodged a hearsay objection. When the trial court sustained the objection, counsel for
GSB, despite the trial court’s reference to an offer of proof, did not make such an offer and moved
on to another line of questioning.
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The Tennessee Rules of Evidence provide:
(a) Effect of Erroneous Ruling. Error may not be predicated upon
a ruling which admits or excludes evidence unless a substantial right
of the party is affected, and
....
(2) Offer of Proof. In case the ruling is one excluding evidence, the
substance of the evidence and the specific evidentiary basis
supporting admission were made known to the court by offer or were
apparent from the context.
Tenn. R. Evid. 103 (2003). In addition, we are cognizant of the following:
Generally in Tennessee, a trial court’s ruling on the admissibility of
evidence is within the sound discretion of the trial judge. Further,
trial courts are accorded a wide degree of latitude in their
determination of whether to admit or exclude evidence, even if such
evidence would be relevant. A trial court’s evidentiary ruling will
only be overturned on appeal upon a showing of abuse of discretion.
See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442
(Tenn. 1992) (citations omitted).
Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). “[S]ince this Court has no way of
knowing what proof would have been introduced, the appellate review of the court’s action is
waived.” Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 954 (Tenn. Ct. App. 1989) (citations
omitted); see also Dickey, 63 S.W.3d at 723. Accordingly, since GSB failed to carry its burden to
produce an alternative measure of damages, we must affirm the trial court’s use of the “cost of
repair” as the proper measure of damages in this case.
B.
Proving “Cost of Repair” Damages
The Homeowners, in an effort to prove the cost associated with repairing their home, relied
on the testimony of two experts. The Homeowners offered the testimony of Donald Merritt (“Mr.
Merritt”), a home inspector, to address the standard of care applicable to residential construction.
In addition, the Homeowners offered the testimony of Eric Meyers (“Mr. Meyers”), a licensed
Tennessee general contractor, to address the standard of care and actual cost associated with
repairing their home. On appeal, GSB contends that the trial court erred in finding that these two
witnesses qualified as experts and in admitting their testimony.
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When reviewing a trial court’s decisions regarding the admissibility of expert testimony, we
are guided by the following:
Questions regarding the qualifications, admissibility,
relevancy, and competency of expert testimony are matters left within
the broad discretion of the trial court. See McDaniel, 955 S.W.2d
[257, 263–64 (Tenn. 1997)]; State v. Ballard, 855 S.W.2d 557, 562
(Tenn. 1993). On appellate review, the trial court’s ruling shall not
be overturned absent a finding that the trial court abused its discretion
in admitting or excluding the expert testimony. Ballard, 855 S.W.2d
at 562. “An appellate court should find an abuse of discretion when
it appears that the trial court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662,
669 (Tenn. 1997).
State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002); see also Mercer v. Vanderbilt Univ., Inc., 134
S.W.3d 121, 131 (Tenn. 2004). “While the Trial Judge has broad powers of discretion in
determining the qualifications of expert witnesses, those powers are not absolute.” Walters v.
Glidwell, 572 S.W.2d 657, 658 (Tenn. Ct. App. 1978). “The discretionary nature of the decision
does not shield it completely from appellate review but does result in subjecting it to less rigorous
appellate scrutiny.” White v. Vanderbilt Univ., 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999). As our
supreme court has stated:
To give expert testimony, one must be particularly skilled,
learned or experienced in a science, art, trade, business, profession or
vocation. The expert must possess a thorough knowledge upon which
he testifies that is not within the general knowledge and experience
of the average person. Kinley v. Tennessee State Mutual Insurance
Co., Inc., 620 S.W.2d 79, 81 (Tenn. 1981). The trial judge has wide
discretion in the matter of the qualifications of expert witnesses.
Blalock v. Claiborne, 775 S.W.2d 363 (Tenn. App. 1989), citing
Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn. App. 1982).
It is obvious that, however an "expert" may be defined, he
should, in order to give his opinion as an expert, have some special
as well as practical acquaintance with the immediate line of inquiry.
Where that line between an expert and a non-expert should be drawn
must, under the varying conditions of cases and their environments,
necessarily be laid down by judex feri; and this court will not reverse
on account of the judgment of the lower court as to whether a witness
offered in it is an expert, unless we can clearly see that he was in error
in respect to the qualifications of the witness, and that his error was
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injurious. Benson v. Fowler, 43 Tenn. App. 147, 306 S.W.2d 49, 63
(Tenn. App. 1957), cert. denied 1957; citing Powers v. McKenzie, 90
Tenn. 167, 181, 16 S.W. 559, 562 (1891).
Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 443 (Tenn. 1992).
Mr. Merritt inspected the Homeowners’ home in February of 2000, and he made follow-up
visits three or four times thereafter. During these visits, Mr. Merritt visually inspected the home,
took photographs, and issued a written report of his findings. Mr. Merritt found several aspects of
the work performed by GSB’s subcontractors to be below the applicable standard of care.
GSB objected to the introduction of Mr. Merritt’s testimony at trial. In attempting to qualify
Mr. Merritt as an expert, counsel for the Homeowners brought out the following facts during direct
examination: Mr. Merritt has been a home inspector for the past seventeen years; he has a degree in
mechanical engineering; he has inspected approximately 10,000 homes; he is a member of the
Southern Building Conference, an organization which drafts building codes; he has been a member
of the American Society of Home Inspectors (“ASHI”) for the past sixteen years; in order to be
certified by the ASHI, he passed a written test on ASHI standards in 1988 and two-hundred and fifty
of his home inspections were reviewed by an ASHI committee; he is the president of his local
chapter of the ASHI and teaches a continuing education course at the University of Memphis on
ASHI standards; he has qualified as an expert on the standard of care in residential construction in
Memphis and Shelby County in approximately fifty cases; during his seventeen years of experience,
ninety-five percent of his inspections were of residential dwellings; he worked as a general contractor
from 1968 until 1974 and built approximately twelve houses during that period; he served on the
ASHI committee responsible for publishing the organization’s “Standards of Practice and Code of
Ethics”; and he served on a legislative committee for the Tennessee General Assembly responsible
for drafting section 62-6-301 of the Tennessee Code, the home inspectors licensing statute.
On appeal, GSB points to several facts it brought out during voir dire of Mr. Merritt which
it uses to illustrate that the trial court erred in admitting Mr. Merritt’s expert testimony. Of the
10,000 homes Mr. Merritt inspected, ten percent were new construction (zero to four years old), four
percent were remodeling projects, and the remainder were existing construction (over four years old).
In its brief, GSB alleges that “under cross examination it was established by Appellant that [Mr.
Merritt] held himself out with a license issued by the State of Tennessee to inspect homes such as
the Appellee’s home, but in fact his license only applied to homes from zero (0) to four (4) years in
age.” 2 Mr. Merritt does not possess any particular certifications in any general construction sub-
2
The a pplicable licensing statute provides:
Licensing or certification requiremen ts
(continued...)
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field. Regarding the particular siding at issue, Mr. Merritt admitted that he only had three hours of
training in wood siding. After reviewing the record, we cannot say that the trial court abused its
discretion in finding that Mr. Merritt qualified as an expert and in admitting his testimony. All of
the discrepancies raised by GSB on appeal go the credibility of Mr. Merritt’s opinions. As such, we
give great deference to a trial court’s determinations regarding witness credibility when reviewing
a case on appeal. Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991).
GSB also takes issue with the trial court’s admission of the testimony of the Homeowners’
second expert witness. Mr. Meyers began operating his own construction company in 1996. He
became a licensed general contractor that same year, and he focuses his business primarily on home
remodeling. Mr. Meyers testified that he has performed over 200 remodeling jobs and worked on
over 500 homes throughout his career. As a general contractor, he estimates that he has overseen
the construction of ten homes. In addition, he has developed over 200 quotes for remodeling jobs
in the Shelby County area. GSB objected to introduction of Mr. Meyers’ testimony at trial. Despite
the objection, the trial court found that Mr. Meyers qualified as an expert on the standard of care and
cost of repairs.
Mr. Meyers inspected the Homeowners’ home in October 2002, and he concluded that GSB’s
performance was not in compliance with the appropriate standard of care. Mr. Meyers prepared a
proposal in the amount of $137,717.45 for work to be done in repairing the Homeowners’ home.
On appeal, GSB primarily argues that the trial court erred in admitting Mr. Meyers’ testimony
because he has a financial interest in the litigation. When asked by counsel for GSB whether he had
been paid for his services, Mr. Meyers testified that he hoped Mr. Hess would select him to do the
repair work at the end of the litigation. As additional support for its position on appeal, GSB argues
2
(...continued)
No perso n, firm or corporation shall offer to perform or perform new inspection
services for a fee without having first obtained:
(1) A contractor's license from the board;
(2) Certification as a fire prevention or building official under § 68-120-113;
(3) Certification by the Southern Building Code Congress International or any other
national professional building code organization;
(4) Certification by the A merican So ciety of H ome Inspectors, Inc.;
(5) Certification by the Home Inspectors of Tennessee Association, Inc. based on
the association's standards in effect on May 1, 1997 ; or (6) Membership in good
standing with the A merica n Society of Ho me In spectors.
Tenn. Code A nn. § 62 -6-30 1 (2003 ) (emp hasis ad ded ); see also Tenn. Cod e Ann. § 62-6-302 (20 03) (defining “new
inspection services”). Our review of the record does not lead us to draw the same inference argued by counsel for GSB;
to wit, that Mr. Merritt does not have the proper licensing to evaluate a home similar in age to the Appellees’ home. To
the contra ry, Mr. Merritt merely testified that the statute provides that anyone with a certification from the American
Soc iety of Home Inspectors can pe rform inspec tions permitted under the T ennessee C ode . In addition, when asked by
counsel for GSB if the cards he possessed indicated he was licensed by the State of Tennessee, he stated: “N o, it says
I’m a member of the American Society of Home Inspectors that is recognized by the State of Tennessee.”
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that Mr. Meyers also testified that he read an internet article on the particular siding at issue in the
case and had only done a “handful of jobs” involving this particular siding.
Any financial interest Mr. Meyers possessed in the litigation is not grounds for reversing the
trial court’s determinations regarding the testimony of this witness. “[A] finder of fact may consider
an expert’s bias or financial interest in the litigation when determining the weight to be given to his
or her opinions.” Street v. Levy, L.P., No. M2002-02170-COA-R3-CV, 2003 Tenn. App. LEXIS
552, at *12 n.5 (Tenn. Ct. App. Aug. 7, 2003). As stated previously, the additional facts alluded to
by GSB regarding this witness go to issues relating to the weight and credibility to be given Mr.
Meyers’ testimony, and we give the trial court’s determinations in that regard great deference on
appeal. See Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Accordingly, we
find that the trial court did not abuse its discretion in admitting the testimony of Mr. Meyers.
C.
Costs and Attorney’s Fees
The Homeowners contend that they are entitled to their costs and attorney’s fees incurred in
defending this appeal pursuant to section 27-1-122 of the Tennessee Code, which provides:
When it appears to any reviewing court that the appeal from any court
of record was frivolous or taken solely for delay, the court may, either
upon motion of a party or of its own motion, award just damages
against the appellant, which may include, but need not be limited to,
costs, interest on the judgment, and expenses incurred by the appellee
as a result of the appeal.
Tenn. Code Ann. § 27-1-122 (2003). The Homeowners argue that this appeal is frivolous and taken
solely for delay in the enforcement of the judgment entered by the trial court.
We must apply this statute strictly so that we do not discourage legitimate appeals. Davis
v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977). “An appeal is deemed frivolous if it is
devoid of merit or if it has no reasonable chance of success.” Wakefield v. Longmire, 54 S.W.3d
300, 304 (Tenn. Ct. App. 2001) (citing Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App.
1998); Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). The award of
damages for the filing of a frivolous appeal lies within the sound discretion of this Court. Banks v.
St. Francis Hosp., 697 S.W.2d 340, 341 (Tenn. 1985).
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We note that an Appellant who fails to cite to any authority on appeal to support a reversal
of a trial court’s findings, especially when even cursory research would reveal the state of the law
in this state, runs the risk of having his appeal deemed frivolous by this Court. See Wells v. Sentry
Ins. Co., 834 S.W.2d 935, 938 (Tenn. 1992). However, we find that this appeal is not so devoid of
merit so as to warrant the award of damages under the statute. Accordingly, we deny the Appellees’
request for damages under the statute.
III.
CONCLUSION
For the reasons set forth herein, we affirm the trial court’s judgment. Costs of this appeal
are to be taxed to the Appellant, GSB Contractors, Inc., and its surety, for which execution may issue
if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
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