1 Tenn. R. Ct. A pp. 10 states: The Court, w ith the con currenc e of all jud gespar ticip ati ng i n th e ca se, may a ffi rm, reverse or modify the actions of the tr

ial court by memorandum opinion when a formal opi nion w ould have no p recedential

value. Whe n a case is decided b y mem orandum opinion it shall be desi gnate d "MEMORANDUM OPINIO N," shall not be publishe

d, and shal

l not be ci

ted or rel

ied on for any reason in any unrelated cas e. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs O

ctober 13, 2000 CITY OF SPRINGFIELD v. HOBSON CLEANING, INC., ET AL 

### .

Appeal from the Circuit Court for Robertson County No. 8206 James E. Walton, Judge

No. M2000-01114-COA-R3-CV - Filed July 5, 2001

This case involves a c ontract between the City of Springfield and defendant, United Services Unlimited, for merl y Hobson Cleaning, to clean the floors of the police department. Defe ndant appealswhether the evidence preponderated against the judgment of the trial court. We affirm the judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in whichB EN H. C ANTRELL , P.J., M.S., and W ILLI

AM C. K OCH , J R ., J., joined.
Martin C. Giner, Nashville, Tenn e ssee, for the appellants, Hobson Cleaning, Inc., and United Services Unlimited, Inc.
J. Russell Farrar,

Robyn Beal

e Williams, Nashville, Tennessee, for the appellee, City of Springfield.
MEMORANDUM OP

INION 1
The City of Springfield police department moved i nto a new building in 1994. Bids were solicited by the chief of police,Mike Wilhoit, to contractfor cleaning and maintenance services for the floors on the first and second story of the building. In re sponse, Hobson Clea ning wrote Mr. Wilhoit in February 1994:
Per our conversa

tion we agree t

o maintain yo

ur business premis

es as follows:2 During the pendency of the contract, Hobson Clean ing, which was owned by Robert Hobson, was bought out by the owner’s f

ather, Don Hobson, and renamed United Se rvices Unlim ited, Inc. The rena med com pany contin ued to fulfill the contract. Robert Hobson remained on as an employee and supervisor. We will continue to refer to the defendan t compan y as Hob son for clarity. 2 1) Dust mop 2) Mopping 3) Buffing 4) Scrub 5) Recoat 6) Strip Our price for these

services rende

red is $1200.00 per

year, pay able $100.00 a month. This includes upsta

irs & downstairs.
After bids were rece

ived, Mr. Wilhoit sent

a memorandum on Ma

rc h 21, 1994 to the city manager, Doug Bishop, recommending acceptance of Hobson’s proposal, which stated: During February

I con tacted Hobson Clea ning, Inc.,

ServPro Indus

tries, Dorris Cleaning and O.L. Gilley. I re questedthey provide me with a cost for maintenance of the tile floors u

pstairs and downst

airs. They were asked to come into the police department

once a month and

clean, buff and wax the floors. They were also asked to strip the floors as needed. The defendant’s bid was accepted and they per formed the contract for that year.
Bids were re-let again in 1995 and Hobson’s bid was accepted. 2 After accepting the contract again in 1995, Hobson Clea

ning wrote

to Mr. Wilhoit “We propose to sweep, damp mop and buff all hard surface floors monthly and scrub and strip as necessary for $100.00 per month.”
There was no other evide nce in the recor

d of the actual sol

icitation for bid

s orany other contract existing between the parties which more specifically

details the obligations. However, the parties agree that the

contract provide

d that Hobson would p

rovide all chemic

als, equipme nt and labor to maintain the floors on the first and second story.
The floors were diff

erent. The flo or o n on e le vel was app aren tly a very high quality linoleum from Sweden which was a no wax/no strip material. In the spring of 1996, the defendant stripped the flooring, and

damage resulted. The

flooring was discolored and damaged. The testimony shows that the stripping material applied to the linoleum, a product called Brute, brought the linseed oil in the flooring to the surface and caused the discoloration.
After a bench trial, th

e Ci ty o f Springfield was awarded $15,615.32 after the judge found that “it was necessa

ry to repla ce the entire flo

or; therefore,

Springfield

Police Department

is entitled to the full replacement cost of the floor.” The defendant appeals the judgment that it is l

iable for the3

damage and asserts that

such a finding preponderates against the evidence. For the reasons be low, we disagree a

nd affirm the judg

ment.
I.
This is an appeal from a decision made following a bench trial, therefore,Tenn. R. App. P. 13(d) governs our review. Accordingly, “r eview of findings of fact by the trial court in civil actions shallbe de novo uponthe record of the trial court, accompanied by a presumption of th

e correctness of the finding, unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). No presumption of

correctness

attaches to the trial court’s conclusions of law. Hansel v. Hansel, 939 S.W.2d 110, 111 (Tenn. Ct. App. 1996).
Add iti ona lly, the weight given to a witness’s testimony lies in the first instance with the trier of fact, and this cou rt m ust acco rd gr eat wei ght t o th e tr ier of f act ’s d eci sio ns o n is sue s ofcred ibi lit y. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Mays v. Brighton Bank , 832 S.W.2d 347, 352 (Tenn. Ct. App. 199

2); Sisk v. Valley Forge Ins. Co. , 640 S.W.2d 844, 849 (Tenn. Ct. App. 1982).
II.
The trial court found that the damage was caused by the chemical Hobson chose to use and that defe ndants were “lia ble for the damag

e cuased” to the

floor, and defe

ndants appeal this judgment of liability, asserting that the evidence w as not suff icient to s upport suc h a finding. Defendant

strongly argues

in its brief that it was never advised that thefloors were not ti le and could notbe waxed or strippe

d. Robert Hobson ev

en testified that h

e thought the floo

rs l ooked li ke marble. Defendant asserts that the plaintiff should have advised it of the special car

e needed for this flooring.

In this case, there was a contract for Hobson Cleaning to provide professional services for payment. Th

erefore, it had

a duty to perform those services in a workmanlike manner, exercising the ordinary skill and competence of others providin

g the same servi

ces. Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 638 (Tenn. Ct. App. 1993) (citation s omitted ). M ore i mpo rta ntl y, “the services of exper

ts are sought be

cause of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession.” Id . (quot ing Metr opolitan Gas Repair Serv., Inc. v. Kulik , 621 P.2d 313, 317-1 8 (Colo. 1980)). Ho bson Cleaning he

ld itself out to be a professio nal floor cl eaning a nd ma intenance servi ce provider and

, therefore, it h

ad a duty to perform those services in a professional manner, using the skills and expertise of others providing the same services.
Chief Wilhoit testified that he knew nothing about cleaning or maintaining floors and did not know in this instance that the flooring could not be waxed or stripped. Additionally, there was no janitor on the staff; ther

efore, the bids w

ere let to have so

meone profession

ally clean and maintain the new floors.4

Under the contract,

Hobson Cleaning w

as to supply all of the materials, cleaning agents and la bor. Complete discretion was le ft to Hobson Cleanin

g as to what produ

cts, if any,

to use in cleaning and maintaining t he floors. Mr. Hobson had approximate ly 18 years experience

cleaning floors and wor

king with

chemicals. Moreover, he had been using the stripper Brute for approximately

15 years a

nd testified he wa

s very fami

liar with the produ

ct.
Robert Hobson testified th

at when purchasi

ng chemicals he

received a Mate

rial Safety

Data Sheet informing him how to work with the chemical and what types of materials it can and cannot be used on. Terry Comsto ck, who sold

the stripping chemical Brute to Hobson Cleaning, testified that he gave defendant the

Material Safety Data Sheet stating on what ty pes of flooring the product could not be used. The testimony of the seller of the flooring establ

ished that the floo

r inquestion was a very high quality gr

ade and that one c

ould tell by lo

oking at the floor

that it was not t

ile. Hobson’ s witness, a representative

of the manufacturer of

Brute testified that one could not tell by looking at it that the flooring was a no wax and no strip p roduct. Faced with this contradictory evidence, the trial court could attrib

ute either one. However, resolution of this factual issue is not necessary to the ultimate outcome because Hobson,

a company h

ired to clean and

maintain the floor, was required to have more knowle

dge of flooring

than the averag

e observer and b

ecause Hobson hadmuch more contact and exper

ience with this flo

or than just looking

at it. Hobson Cleaning was not unfamiliar with this floor. In fact, Robert Hobson testified:
The general contractor finished the building. We went i

n to make it presentable for the police depar

tment, and then we

used a cleaner

on it to remove the soil a

nd dirt, andthen we put

the wax down, and then at that time I think – I

don’t recall the

lapse
o f time in there, whether we started services immediately or a period of months before the chief and I got together.
Add iti ona lly, Hobs on Clean ing had the contract to clean the floors since April 1994 and performed

the contract without p

roblems from April 1994 until this damage resulted in the Spring of 1996.
Defendant

claims that it was ne

ver advised that t

here was any

special care ne

eded to maintain this flooring. Yet, in addition to the chief testifying that he knew nothing about the flooring, Robert Hobson testified: Q: Did you ev

er ask Chief Wilhoite

what type of

floor it was? A: No, ma’am. I

don’t recall. Q: Did you ev

er ask him what ty

pe of chemicals t

o use on it? A: No ma’am.5

We do notfind that the evidencepreponderated against finding the defendant was liable for the damage to the flooring in light of t he defendant contracting that it could perform professional services,holdi ng itse lf out to be a professional floor cleaner, the experience of the defendant, the previous extended exposure to maintaining this flooring, thefailure to question whether any special
care w as needed, and c

hoosing the chem

ical which cause

d the damage. Th

erefore, we a

ffirm the jud gmen t of lia bil ity.
III.
Next, Hobson Cleaning asserts that the plaintiff should have mitigated its damages by repairing the floor insteadof replacing it. Hobson Cleaning relieson the testimony of its “expert” that the flo or co uld hav e bee n rep air ed b y s cru bbing it and placing a few coats of wax on it. The court conclud ed that the flooring could not be repaired, but had to be replaced and entered a judgment accordingly

for the replacement cost. We do not find that the evidence preponderates against thi s finding.
The damages testimony consisted of the testimony of witnesses who viewed

the damage to the flooring and the parties’ “experts”- the seller of the flooring an d a re presentative of the manufacturer of the stripper.
It was undisputed that the actual damage to the flooring consisted of discoloration in several places. The extent of the d amage was disputed. The testimony of the owner of Furniture Center, William Jones, the seller of the flooring, established that the flooring was a very hig h quality grade from Sweden. Mr. Jones has ove r 50 year s experience with flooring. He testified that the entire flooring had to be replaced because, otherwise, it would not match because the dy

e lots would differ. He explained that dye is mixed for each lot of material manufactured and that these

lots can and do differ. Therefore, if the flooring is from different lots, it may not match. Specifically, he stated: Q: Was it necessary to replace the entire floor? A: Yes. Q: And why is t

hat? A : Because of the dye lot of the material. I f you replace one room, y ou have t o replace it all or it will not color match. Q: Okay. So even

as the defendan

t claims, although the entire floor wasn’t damaged, it would also need to be replaced? A: Right.
On the oth er ha nd, the defe nda nt’ s ex pert , Te rry C omstock, a representative of Brulen Corporation, the manufacturer of the stripper, testified that the damages could have been repa ired by scrubbing and placing on it 3 to 4 coats of floor finish, but also stated he di d not see all of the damaged areas. Based on this testimony, defendant argues that the plaintiff should have mitigated the damage by repairing the floor and/or replacing only the damaged portions and not the entire floor.6

However, Mr. Hobson testified that his o wn attempts to repair the flooring were unsuccessful. The court considered all the testimony and held:
With regard to damages, ther e has be en some testimony that only a po

rtion of this floor was damaged. As Mr. Comstock stated, some of it could be handled in such a way as you could

n’t tell it had been

damaged. Yet there ’s the testimony of Mr. Rob ert Hobson that effor

ts were made to co

rrect the situati

on, and it

was no t corrected.
There’s the testimony

of Mr. Jones that bec

ause of the dy

e lots i n the flooring material, that if you we

re to replace pa

rt of it, you h

ave to replace a

ll of it. The Court give s cr edi t to tha t te sti mon y.
We find the evidence does not preponderate against this finding. To t he extent there was testimonythat the flooring did not have to be replaced in its entirety and could have been re paired, there was also contradictory testimony by the defe

ndant that effor

ts to repair

the flooring were not successful. Fin all y, there was testimony that replacement of only portions of the floor would leave the plaintiff with

a less satisfactory floor

than it had before the damage. Therefore, the award of the amount of damages necessary to replace the flooring is affirmed.
IV.
For the reasons statedherein, we affirm the judgment against defendant for $15,615.32 for the cost of replacin

g the flooring

damaged by

defendant stripp

ing it. This cause

is remanded to the trial court for any further

actions if necessary. Costs of this appeal are taxed to the appellant, United Services Unlimited and its predecessor in interest Hobson Cleaning, Inc., for which execution may iss ue i f nec ess ary.

___________________________________ PATRICIA J. COTTRELL, JUDGE