IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE January 31, 2011 Session CHARLES S. PESCE v. EAST TENNESSEE CONSTRUCTION SERVICES, INC. Appeal from the Circuit Court for McMinn County No. 25444 J. Michael Sharp, Judge No. E2010-01071-COA-R3-CV - Filed February 28, 2011 D. MICHAEL SWINEY, J., concurring. Given the record presented to us on appeal, I concur fully in the majority’s Opinion. I write separately, however, to express my concern as to the diminution in value damages of $382,000 awarded to the Owner. I agree with the majority that, given the record presented to us, this result is correct. I also agree with the majority that the Owner is “in possession of a fully operational, profitable, dental office...” which the Owner had used for several years by the time of trial. As stated by the majority, the Owner incurred “construction cost of approximately $460,000...” in constructing this building. The diminution in value award of $382,000, with which I concur given the record presented to us, means that the owner will end up with construction costs of only approximately $78,000 for “a fully operational, profitable, dental office.” I find it more than a little troubling that the result of our decision is that the Owner ends up with a building that has functioned for years as his “fully operational, profitable, dental office” for a construction cost of only approximately $78,000. This bothersome outcome results from the proof presented to the Trial Court that even though the Owner had only approximately $460,000 in construction costs, the building somehow would have been worth over $700,000 if it had been constructed as it should have been for approximately $460,000. I believe, however, that the record as presented to us leaves us no choice but to do exactly what the majority has done, and I, therefore, fully concur with the majority Opinion. _________________________________ D. MICHAEL SWINEY, JUDGE