### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

une 25, 2001 Session

JERRY BROOKS v. MELISSA TERRY IBSEN, ET AL 

### . Appeal from the Chancery Court for Union County No. 3605 Billy Joe White, Chancellor FILED AUGUST 24, 2001
No. E2000-02870-COA-R3-CV

Jerry Brooks (“Plaintiff”) contracted with Joe Ibsen d/b/a Century Whol esa le Pool Supply, Inc. (“Defendant”), for the installatio n of a swimming poo

l. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This la

wsuit followed. The Tr

ial Court awarde

d Plaintiff $61,531. 28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery

Court Affirmed as M

odified; Case Rem

anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined.

Steven G. Shope, Knoxville, T ennessee, for th

e Appellants Melis sa Terry I bsen, Joe Ibsen

d/b/a Cen tur y Who les ale Poo l Su ppl y, Inc ., a nd C ent ury P ool Sup ply C omp any.

David H. Stanifer

, Tazewell, Tenne

ssee, for the App

ellee Jerry

Brooks.-2- OPINION Background
Plaintiff contracted with Defendant for the purchase

and installation of a swimming pool. Plaintiff received a limited warranty wherein Defenda nt guaranteed

“all pool work to be free from defect for one year from date of completion when subjectto normal use and care . . . .” Defendant

agreed to remedy “any bre

ach without charge.” Plaintiff began experiencing pr

oblems withthe swimming pool shortly after completion, eventually re sulting in thi s lawsuit. In his complaint, Plaintiff alleges breach of contract and a violation of the Tennessee Consumer Protection Act.
Plaintiff

testified that the contract

price for the poo

l was approximately

$36,960, but that he had additional work done which putthe price over $4

0,000.00. All pay

ments were made t

o Defendant

except the final payment of $3,660.00. According to Pla intiff, before h

e and his family even used the pool, they

noticed several

cracks which Pla

intiff estimated to

be a total of 100 lineal feet. The following weekend, Defendant went to Plaintiff’s residence to inspect the pool. At that time, Defendant believed that the cracks were

in the outer plaster surface and not in the underlying concrete. Defendant told Plaintiff he would take care of the problem. Plaintiff and his architect met withDefendant and an

agreement was worked out on how to fix the pool. The agreement provided, in relevant part, that at

the end of the summer, the cracks and any leaks would be repaired. If plaster crack repairs were not acceptable to Plaintiff, an epoxy coating

would be provided at no additional cost. While Defendant o

riginally believed the cra

cks were not in th

e gunite and only affected the outer plaster, the agreement stated that the gunite would be inspected for cracks whe n t he repair s were undertaken.

Accordin g to Plaintiff, when the pool eventually was inspected , it was determined tha t the cracks went thr

ough to the gunit

e. Plaintiff gav

e Defendant per

mi ssion t o begin repairing the pool. Defendant continued to assure Plaintiff the problemwould be resolved. While Defendant was in the process of replacing the pool bottom, but before the new concrete

had been poured, Plaintiff had some concerns about how the pool was being repaired. Plaintiff’s architect inspected the pool and recommen ded th at P lai nti ff co nta ct “ som eon e el se. ” Pl ain tif f th en co nta cte d Ja ck Ll ewel lyn (“Llewellyn”),

an engi neer w ith Fo undat ion S ystems Engin eerin g, P.C . Ll ewelly n did not agree w

ith Defendant

on the proper way

to repair the pool. Llewellyn’s proposed method for re pairing the pool was much more expensive. Plaintiff then s ent a letter to Defendant inviting him to obtain the services of an engineer

. Plaintif f also suggested that if Defendant did obtain the services of an engineer, and the two e ngineers could not reach an agreement on how to proceed, then the two engineers could select a third engineer to resolve the matter.

When the parties were unable to reach an agreement on what was necessa ry to repair the poo l properly, Plaintiff obtained two estimates and had the pool repaired according to t h e recommendation of Llewellyn, utilizing the company that gavethe lower

estimate. Llewellyn had some concerns about movement in the walls of the pool and recommended th at the pool be1 Mr. Nack wa s not called as a witness at trial, although a letter cont aining his

recommendations was admi tted at trial over the o bjection o f Plaintiff. -3- completely

redone. In order to reduce the cost of having the walls of the pool torn out and replac ed, Plaintiff had a new pool installedover the old pool, resulting in a somewhat smaller pool. Plaintiff also incur red some e xcavation costs because dirt needed to be hauled off once the original pool bottom was removed. The contract price to have the new pool installed over the old poo l was $32,236.00. The excavation costs were $10,136.89, which includ ed having the dirt removed. Plaintiff also paid Llewellyn a total of $16,658.44. According to Plaintiff, this was for “all of their total engineering systems and design work, eve rything that they did towards finding the problem and making recommendations for rebuilding t

he pool, and studies. I think they did some core drilling.” Plaintiff’s architect was paid $3,931.05. Plaintiff also incurred $1,003.94 in expenses for the purchase and installation of

a pool shower and fa

ucet as called f

or in the origina

l contract with Defendant

but which had not been installed. Plaintiff also spent $282.39 for electrical work which Defendant

never completed. Plaintiff further claimed that he had to replace part of the concrete deck because of cracking a

nd had other part

s of the deck rework

ed because it wa

s defective, whi

ch cost an additional $4,008.95. Plaintiff’s total claimed damages were $68,257.66, excluding his claim for attorney f ees.
At trial, Defendant stipulat ed that Llewellyn was a licensed eng ineer and qualified as an expe rt. Llewell

yn testified

that he specialize

s in geo-technic

al soils and founda

tions. Lle wel lyn tested the soil the d ay before the concrete wa

s to be poured by

Defendant in hope

s o f repairing the pool. Llew ellyn stated

that the soil was sof

t in consist

ency and wa s not suitable to support a concrete slab. According to Llewelly n, a portion of the pool was bearing directly on the soft soil and had settle

d, causing the c

racks to develop

withresulting water

loss. Llewellyn testified that Plaintiff needed to either completely remove and replace the po ol, or build a new pool inside the existing pool. Regardless of which option w as chosen, he felt th at the soft soil woul

d have to be removed or the sa

me problem would de

velop again. L

lewellyn al

so concluded that the walls of the original pool

were not thick en

ough, and he bel

ieved the pool wal

ls may have m

oved. Merely patching or reinforcing

the existing walls w

ould not be sufficient due to the inadequate design of the walls. Llewelly

n testified th

at he disagreed with several of the recommendations made by Defen dant’s expert, Mr. R.A. Nack (“Nack”) 1 . For example, Nac k proposed underp

inning only a section of the pool with

rock, which would have resulted in a portion of the pool being on rock and another portion on soil. This could result in more cracks because the pool would settle diffe

rently if it rested on two different surfaces.

Defendant

testifiedthat initially he believed the cracks were cosmetic.Once the pool startedlosing water, however, he knew the cracks were in the

concrete bottom. Defendant does not know w hat caused the cracks in the pool. Defendant has repaired cracks in swimming pool s o n numerous occasions. The procedure he uses to repair cracks is to cut back the plaster to determine if the cracks extend down to the gunite. Then he would drill or cut down int

o the crack, fill

it with hydraulic cement, and

replaste r over the cement. T

his is the m

ethod he i ntended t o utilize to repair Plaintiff’s pool. Defendant stated that he was to the point where the new c ement wa s about to be-4-

pouredwhen Plaintiff stopped him from completing the repairs because Plaintiff wanted to have soi

l sa mples made. Once this was completed, Defendant met with Plaintiff and Llewelly n. Plaintiff indicated that he wanted to “tear that pool out” in accordance with Llewellyn’s recommendation, but Defendant

refused. Defendant then obtained a reco mmendation from Mr. R.A. Nack with R.A. Nack & Associates, an architectural and engineering firm based in Carbondale, Illinois. Nack disagreed withLlewellyn on how to repair the pool and concluded that, f or the most part, he agreed with how De fe ndant

wanted to repair

the pool. Defenda

nt testified that he

was at all times will

ing to repair the pool and could have properly repaired the cracks utilizing the method which he and Nack thought was appropriate. Defendant admitted t hat N ack never inspe

cted the pool. Def

endant also acknowledged

that there were a few items in the original contract which had not bee n completed, such as installing a drain and frost proofing the pool.

Mr. Bill Campbell (“Ca

mpbell”) was cal

led as a witness for the Defen dant. Campbell is the owner of Campbell’s Pool and Spa and has built in excess of two thousand swimming pools. Campbell has also repaired cracks in swimming pools. Campbell claimed that the normal procedure to repair a cra

ck is to cut out the affected area and, if necessary , take out the steel and replace that as well. Campbell ag

reed with Defen

dant on the proper

procedure in

which to repair

Plaintiff’s pool. He claimed he has never completely torn out a pool in order to repair a crack. Campbell admitted he never inspec

ted Plaintiff’s poo

l, and he does not kn

ow what caused th

e cracks.
Defendant

also called as a

witness Mr. Bill Belcher (“Belcher”), owner of Castlerock Pools. Belc her has built two to three hundred swimming pools and also has repaired swimming pools. Belcher

testified that when repairing cracks, he normally cuts out the par t thatis cracked and then replasters the affected area. He admitted, however, that the manner in whicha crack is repaired depends on the severity of the crack(s). Belcher further admitted

he never inspec

ted Plaintiff’s poo

l, and he does not know what caused the cracks.

After a bench trial, the Trial Court awarded judgment to the Plaintiff in the amount of $61 ,53 1.2 8. T he T ria l Co urt sim ply sta ted in its Judgment tha t the “evidence p

reponderates in favor of the contentions of the Plaintiff.” The damages awarded to Plaintiff were broken down as follows: Sequoyah Poo ls Original Contract $ 32,236.00 Excavation Cost and Hauling Dirt 5,500.00 Foundation Sy

stems 10,000.00 Design Innovations 2,000.00 Bradley Pool Shower 690.05-5- Bradley Frost Proof Faucet 313.89 Roy Cinnamon Electrical Work 282.39
Cool Deck Defect 4,008.95 Attorney Fees and Expenses 6,500.00
TOTAL: $ 61,531.28

Discussion
On appeal, Defendant makes two arguments. First, he claims th at he stood ready

to repair the pool but Plaintiff

stopped him from completing those repairs. D efendant arg

ues that this should prevent Plaintiff for recovering any judgment. Second, Defendant argues that he could have repaired the pool for $7,500.00, and any judgment should be limited to that amount because Plaintiff had a duty to mitigate his damages.

A revi ew of findings of

fact by a tr

ial court is de novo upon the record o f the tria l court, accompanied by a presumption of correctness, unless the prep onderance of

the evidence is otherwise. Tenn. R. App. P. 13(d ); Brooks v. Brooks , 992 S.W.2d 403, 404 (Tenn. 1999). Review of questions of law is de novo , without a presump tion of correctn

ess. See Nelson v. Wal-

Mart Stores, Inc. , 8 S.W.3d 625, 628 (Tenn. 1999). Initially we point out that Defendant claims on

appeal that “[b]ecause

the trial court failed to make any specific finding s of fact, this Court’s analysis of

this case must include a review of thefull record to determinethe preponderance of evidence.” Plaintiff attached to his brief a Memorandum Opinion and Findings of Fact made by the Trial Court immediately

following the tri

al. Unfortunate

ly, this Memorandum is not included in the record so it cannot be considered on appeal. Nevert heless, Defenda

nt’s claim that the

Trial Court faile

d to make specific findings of fact is inaccurate.

Addressing the merits of the appeal, it is clear that a warranty was provided and Plaintiff was experiencing some significant problems with the new pool. The problems were such that Plaintiff believed he needed to hire an engineer to evaluate whether Defe ndant’s suggested manner in which to repair the pool was proper. Llewellyn concluded that the w alls of the pool may have moved and that fur

ther cracks cou

ld develop if

the pool was repaired in the manner suggested by Defendant. Altho

ugh the Trial Cour

t’s findings of f

act a re not pro perly befo

re this Court, it is implicit in the Trial Court’s judgment that he credited the testimony of Llewelly n regarding what was necessary to repair the pool properly and that Defendant’s sugg ested course was not the proper manner in which to proceed. The Trial Court had the opportunity to observ e the man ner and demeanor of the vario

us witnesse s and assess their credibility. This determination will be given great weight on appeal. See Barnhill v. Bar nhill , 826 S.W.2d 443, 448 (Tenn. Ct. App. 1991)(citing-6-

Town of Alamo v. Forcum-James Co. , 205 Tenn. 478, 327 S.W.2d 47 (1959)). After reviewing the record in its entirety, we cannot say that the Trial Court erred when it concluded that the “evidence preponderates in favor of the contentions of the Plaintiff.”

Because the preponderance

of the evidence does not weigh against the Trial Court’s findings and the resulting judgment, it nece

ssarily foll

ows that Plain tiff is not limited to what the repairs would have cost had Defendant been allowed to proceed with simply replacing the bottom of the pool. Plaintiff w

as, therefore,

entitled to damag

es based on what it

actually cost him to

repair the pool. The purpose

of assessing da

mages in a brea

ch of contract c

ase is to place the plaintiff, as nearly as possible, in the s

ame position he wou

ld have been in ha

d the contr

act been perf

ormed. Adams TV of Memphis, Inc. v. Comcorp of Tennessee, Inc. , 969 S.W.2d 917, 922 (Tenn. Ct. App. 1998); Action Ads, Inc. v. William B. Tanner Company, Inc. , 592 S.W.2d 572, 575 (Tenn. Ct. App. 1979). The injured party, however, is not to be put in a better position than he would have been in by recovery of damages for brea ch of the contract. Adams TV , 969 S.W.2d at 922. It is undisputed in this case that Plaintiff did not make the final payment of $3,660.00, which is just under ten percent of the original contract price. Had there been no breach of the wa rranty, Pla

intiff would have p

aid the entire $36,690.00 for the pool, not just $33,030.00. We therefore reduce the judgment awarded to Plaintiff by $3,660.00 so that Plaintiff is not placed in a better position than he would have been had there been no breach.

It is a general rule in this State that litigants must pay their own attorne

y fees in the absence of a statutory provision or a contractual agreement between the parties. Morrow v. Bobbitt , 943 S.W.2d 384, 392 (Tenn. Ct. App. 1996). The contract between the parties in this case does not provide for Plaintiff to be awarded attorney fees in the event of a breach. We must assume that the Trial Court awarded Plaintiff $6,500.00 in attorney fees pursuant to h

is claim under the Tennessee Consumer

Prote ction Act, which contains a provision for awarding attorney fe es to a successful litigant. Tenn. Code Ann. § 47 -18-109(e)(1) . After reviewi ng the record,

we find th at t he preponderance

of the evidence weighs heavily aga inst any finding

of a violation of the Tennessee Consumer

Protection Act. Although the TrialCourt did not explicitly state that there was a violation of this Act, to the extent that the Judgment can be so inter preted, we vacate that portion of the Judgment as well as the award of $6,500.00 in attorney fees.

We note that the Trial Court in its determination of the damages awa rded Plaint iff did not allow the ful

l amounts paid by

Plaintiff to his

engineer and architect. The record does not preponderate

against the Trial Court’s findings as to the amount of these and the other damages awarded to Plaintiff, other than as modified in this Opinion.
Conclusion
We modify the Judg

ment of the Trial Co

urt to reflect an

award to Plaintiff i n the amount of $51,371.28. As modified, the Judgment of the Trial Court is otherwise affirmed. This case is remanded to the Trial Court for further proceedi n gs as may be required, if any , consistent withthis Opinion, and for collection of costs below. Costs of appeal are taxed 75% to the Appellants-7-

Melissa Terry Ibsen, Joe Ibse

n d/b/a Century

Wholesale Pool Supply, I nc., and Century

Pool Supply Company, and

25% to the Appelle

e Jerry Bro

oks.

____________________________________ D. MICHAEL SWINEY, JUDGE