### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decem ber 9, 2002

Session DUDLEY C. EASTBOURNE, ET AL 

### . v. ROGER BRUMITTE D/B/A ROGER

BRUMITTE CONST RUCTION Appeal from the Chancery Court for Loudon County No. 9656 Frank V. Williams, III, Chancellor

FILED MARCH 18, 2003 No. E2002-00068-COA-R3-CV

In this appe al from th

e Chance ry Court for

Loudo n County

the Appe

lla n t, Roger

Brumitte d/b/a Roger Brumitte Construction, argues that the Trial Court err ed in awa rding th e Appellees, Dudley C. Eastbourne and wife Barbara A. Eastbourne, damages for def ects in the

construction of the

ir home. We affirm the judgment of the Trial Court as modified and remand for enforcement of the judgment and collection of costs below. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES D. S USANO , J R
. and D. M ICHAEL S WINEY , JJ., joined. Christopher

W. Martin and Michael P. McGovern, Knoxville, Tennessee, for the Appellant, Roger Brumitte, d/b/a Roger Brumitte Construction John Ca rson, II

I, Madisonville, Tennessee, for the Appellees, Dudley

C. Eastbourne and wife, Barbara A. Eastbourne

OPINION
In September of 1997 Roger Brumitte d/b/a Brumitte Construction (he r einafter, " Mr. Brumitte") entered into a construction contract with the Eastbournes for the construction of a lake front house in th

e Tellic o Villag e Subdivisi o n in Loudon County . It a ppears t hat the do cuments governing the specifics of construction which were agre ed to b y the part ies co nsis ted of a one p age contract, architectural drawings/plans, a list of specific ations prepared by Mr. Eastbourne an d change orders executed af ter construction began.-2-

Alth ough the Eastbournes were living in Minnesota when construction of the house began, they returned to Tennessee on a couple of oc casions to check on the progress of co nstru ction in January or Fe

bruary of 1998 before moving here permane ntly shortly

thereafter. As construction continued the Eastbournes expressed dissatisf action wi th various e

lements of Mr. Brumitte's work and disputes arose betwee n the parties w

hich culm inated in the Eastb ournes' dismissal of Mr. Brumitte in early Novembe r of 1998. Th ereafter, the Eastbournes employ ed another contractor, Gar

y A lcorn, to complete the home a

nd remed y pe rceive d defec ts. On November 19, 1998, the Eastbo urnes filed a complaint against Mr. Brumitte in the Loudon County Chancery

Court for damag es i n a then undetermined amount not to exceed $250,000.00. The complain t asserted that Mr. Brumitte was in mat

erial br each of the part ies' agree ment in the

following

respec ts: (a) the house has not been constructed in accordanc e with the plan s submitt ed; and (b) the house has not been constructed in accordance w ith the specifications submitted; and (c) the house

has not be en constr

ucted in accordance with standard practices; and (d) the house has not been co nstructed within the time represented by the Defend ant. On January 22, 1999, Mr. B rumi tte filed an answer and counter-complaint by which the above assertions were denied. The counter-complaint further charg ed the Eastbournes with breach of contract by

reason o f their f

ailure to p ay sums which Mr. B rumitte asserted were due him for "labor, materials and other work performed on the job." In consequence o f this alle ged breach of contract Mr. Brumitte’s counter-complaint reque sted damages in the amount of $92,175.14.
The case was tried without a jury in Aug ust of 2001. After presentation of proof and argument of counse

l, the Tri al Court f

ound that, as a result of

Mr. Brumitte's breach of contra ct, the Eastbourn es sustained damage to their home for which they should be awarded a judgment in t h e amount of $60,000.00. The follo wing da y the Court no tified the

parties b y le

tter of it s decision

to increa se the amoun

t of judg ment to $74 ,514.50. T he Court e

ntered its final ju dgment nunc pro tunc on October 10, 2001, awarding the Ea stbo urnes $74,514.50. The judgment further dismisses Mr. Brumitte’s counter-comp laint agains t the Eastb ournes with full prejud ice. Mr. Br umitte file d a motion to alter, amend and reduce judgment on Nove mber 9 , 20 01; however, this motion was denied. O n January

2, 2002, B rumitte f

iled notic e of appe al. The issue s presen

ted in this c ase are

restate d as follo ws: 1. Should Mr. Brumitte be absolved of liability for failure to correct defects in the Eastbourne’s hous e upon grounds that he was either not give n notice of such defects or was prohibite d from co

rrecting them?-3-

2. Does the evidence presented in this cas e indica

te that the amount of

damage s award

ed to the Eastbournes was either excessive or inadequate?
In a non-jur

y c ase such

as t his on e our sta

ndard of review i s de novo upon the r ecord w ith a presumption that the findings of the Trial Court are correct absent a prepond erance of evide nce to the contrary . See T.R.A.P. 13(d). No such presumption exists as to the Trial Court's conclusions of law. See Hawk

v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997). We further note that, as a general rule, this Court does not pass on the credibility of witnesses. A trial court, having seen and he ar d t he wi tn es se s t es ti fy, is in the be st position t o determine the witnesses' credibility

. Bowman v. Bowman , 836 S.W.2d 563 (Tenn. Ct. App. 1991). The firs t issue we

addressis whethe

r Brumit te should b e reliev ed of lia bility for defect s in the Eastbournes’ house upon grounds that he was either not given notice of suc h defects or was prohibited from implementing their correction.
Mr. Brumitte

cites Carter v. K

rueger , 9 16 S.W.2d 932 (Tenn. Ct. App. 1995) for the propositio n that a

contracting par

ty’ s failure

to give notice of

defect s and aff

ord an op portunity to correct such def ects con stitutes a

breach of contr act. Mr. Brumitte

also cite s McClain

v. Kimbrough Construction Co., 806 S.W2d 194 (Tenn. Ct . App. 199 0) for the proposi tion that a contracting par

ty has an affirmative duty

to give notice of defective work and a llow an opportunity to correct such work bef ore ter minating the contr act. In his brief Mr. Brumitte maintains that the Eastbournes’ complaints regarding construction of the house

fall into t

wo cate gories- “compl aints that were ne ver call ed to his attention” and “compla ints that arose while Brumitte was on the job, but which he was specifically

instructed not to address.” With apparent referen ce to the first of t hese two categ ories, Mr . Brumitt

e observ es in his brief that the Court held him responsible for “the cost of cross-bracing the roof trusse s, uneven load bearing walls which caused the floors not to be level, improper installation of porch columns, and cracks in the floo

ring and interior

columns.”Howeve

r, Mr. B rumitte c ontends th at “ [a] ll these probl ems ar ose after Mr. Eastbourne brought in a se ries of experts” and “the experts reports were datedat or about the time Brumitte was dismissed from the job.” Mr. Brumitte asserts that he was advised in correspondence from Mr. Eastbourne’s attorney dated Sep

tember 2 1, 1998, th at experts were reviewing the house and their reports would be shared with him at a later date. However, Mr. Brumitte maintainsthat he ha

d not rec eived an

y of these re ports as o f the time

of his dismi ssal.
We disagree that the record supp orts Mr. Brumitte’s contention that all of the above delineated

problems arose after experts were consulted a nd it appears from our review of the rec ord that they were, in large part, p roblems Mr. Brumitte shoul d have been aware of eve n absent notification by the Eastbournes. I n any event, to the extent that the Eastbournes neglected to notify Mr. Brumitte of any

of these problems, our analy sis of McCla in v. Kimbrough Construstion Company , ibid. persuades us that under the facts of this case they were not obligated to do so.-4-

In M cClain a general contractor, Kimbroug h, entered into a subcontract with McClain, a masonry co mp an y, to perform brick work on a condominium project in Nashville. As the project procee ded di sput es aros e betw een McC lain a nd Kim brough regarding various aspects of the brick work. McClain had laid approximately one fourth of the br icks required for completion when they were forced to stop work because Kimbrough ha d not compl eted grading around th e building s. Alth ough the parties agreed that McClain could work on a nother job and that K

imbrough would ca

ll McClain back when the brick work could be completed, McClain was not called ba ck. Instead, withoutnotice to McClain, another brick mason was hired to complete the brick work and repair or replaceportions of McClain’s work. McClain filed suit against Kimbrough for brea ch of contract The tria l court in McClain determined“that Kim brough breach ed its con tract with McClain by interfe ring wit h McClain ’s wor k and by failing to give M cClain an

opportuni

ty to correct its defective work or to complete the job before hiring another brick mason.”We affirmed the ruling of the trial court, however, in doing so we noted as f ollows at pages 198 and 199: Under the fac ts of thi s case, we find that Kimbrough had a duty to give McClain notice and a reasonable opportunity to correct its defective work before terminating the contract. Kimbrough’s failure to g ive McClain notice constitutes a material breach unless Kimbrough was excused from performing its obligations under the subcontra ct. Only McClain’s uncured material failure to perform its own contractual obligations would have

excuse d Kimbrough

from perf

ormi ng its remaining obligation s. (emphasis added)
We then note d variousfactor s set fort h at s ecti on 241 of the Restatement (Second)of Contract s (1979) which are deemed significa nt in determining whether a party’s fa ilure to perform is material. Among these factors are “the extent to which the injured party will be depr ived of the benefit which he reasonably

expected” and “thelikelihood thatthe party fa iling to perform or to offer to perfor m w ill cur e his fail

ure, tak ing acc ount of all the circ umstance s includin g any

reasona ble assurances.” In lig

ht of thes e facto

rs, it is ap

parent in the cas e now bef ore us that Mr. Brum itte materia lly failed to perfor m his contr

actual o bligatio ns and, a

ccordin gly , to the extent they did not do so, the Eastbournes were excused from the duty to provide notice and an op portunity to correct withregard to the problems indicated by Mr. Brumitte in h is br ief. In this rega rd we note the following with respect to some of the defects in the house which wer e brought to Mr. Bru mitte ’s attention and his response:
1. F oundation - Although the house plans provided that the basement walls would be reinforced

with rebar and

that cavities in blocks composing the foundation would be filled, this was notdone. Upon her inspection of th e house in January or Fe

bruary of 1998, Ms. Eastbourne noticed these omissions and brought them to the attention of Mr. Brumitte:
A I spoke with Mr. Brumitte, Roge r, about it. And he said, “It’s not necessar y.”-5-

And I said – he say s, “Why don’t we just leave it that way . “ And I said, “No. I

want you to go according to the plans. I want you to g o by the specifications of the plans because it makes for a stronger house.” Despite Ms. Eastbo

urne’s c omplaint a

nd a subseq uent written reminder from Mr. Eastbourne in a punch list providedto Mr. Br umitte in Se

ptember of 1998, th

e defects in the foundation were never corrected.
2. Windows - Although the plans show all the windows a t the same elevatio n when the

house was being framed, Ms. Eastbourne noticed that the windows were at different levels and broug htthis to Mr. Brumitte’s attention. The problem was never corr ected. During the course of trial the Trial Courtinspecte d the house and noted in its memora

ndum opinio n that the

windows w ere not t

he same height and were too close to the floor. 3. Brick work - Ms. Eastbourne testified that when the brick was laid on the exterior of the house she was shocked

by its appea

rance a nd advise d Mr. Br

umitte of her di ssatisfa

ction. He told her not to worr

y a bout it, tha

t it hadn’t been cle aned y

et and tha t it would “ all be taken care of.” Max Cook, a consulting engine er and bu ilding in spector

who perf orms pre-pur

chase ho me inspections, testified that the b

rick wor k on the Ea stbourne ’s home was the “worst brick work that I ha d ever seen in my life. .... I

t was just horrible, the exterior brick work, thesloppiness. ... [T]here was areas of mortar all over the brick work all around the house. There was very poor fitting joints.” Mr. Cook further testified that the only way to remedy

problems with the brick work would be to remove the brick and rela y it. Mr. Eastb ourne te stified th at the br ick lay ers ju st wan ted to patch up the brick. “It was much more extensive work t o do and th ey weren’ t ready

to addre ss that.” Mr. Brumitte insisted in his trial testimony that, on a scale of one to ten, with ten representing excellent work, the brick work on the Eastbournes’ house was an eight. The implication of Mr. Brumitte’s testimony is that he continues to deny significant defects in the brick work.

4. Interior doors - The

specifications stated that the interior doors would be “six panel wood doors”; however, Ms. Eastbourne discovered that when the door s were hung they were not wooden doors, but rather pressed Masonite. Q. What did you do when y ou found out that they wer en’t wood? A. I complained to Mr. Brumitte. Q. What was his response?
A. Well, “The

y’ re fine . They ’re go ing to be just find.[s ic ] You don’ t need hardwooddoors.” And I said, “But that’s wha t we contracted for, those hardwood doors.” I got one ha

rdwood door. One. And that’s the outside door.”-6-

5. Mis-positioned toilet - Several witnesses confirmed that a toilet in one of the downstairs bathroom s was mis-positioned. Mr. Cook testified that the toilet “was just left there too far out from the wall. And not only did it look terrible, the do or – t he ba th ro om do or wo ul dn ’t op en co mp le te ly. It hit the toilet, the front of the toilet bowl.” Ms . Eastbou

rne testi fied tha

t she advi sed Mr. B rumitte of this pro

blem. Q. Did you addre ss that with Mr. Brumitte?
A. Yes, I did. And he told me, he said, “Well, y ou don’t need to worry.” He laughed. He said, “You can build a cabinet around that ga p.” And I said, “Well what about the door?” And he says, “Well, y ou can still get in the door.” Q. What did y

ou have to

do to repa

ir that, ma ’am?
A. We had to

take the – we had t

o tear it a ll out. And you can see that man had to reset it and tear up the tile and move it back. In view of these and other defects which were broug htto Mr. Brumitte’s attention and which he failed to

acknowl edge a

nd correct it is our

determin ation tha

t he mater ially failed to perfor m his contractual obligations and the Eastbournes were not subsequently required to give him notice and an opportunity to repair those defects specified in his brief.
Mr. Brumitte

also asse rts that there were complaints that arose while he wa s working on the house which he was instructed not to address. The only such complaint specified by

Mr. Brumitte in his brief related to the brickwork. Mr. Brumitte states that Mr. Eastb ourne ins tructed him not to do any touch

up or repair of the brick after the br ick had been cleaned. The rec ord showsthat these instructions we re given by Mr . Eastbourne in late September of 1998. However, as noted in the punch list provided by Mr. Eastbourne to Mr. B rumitte and dated September 22 , 1998, the complain ts about the brickwork had a lready be e n discussed for months. During those months appare ntly

th e only remedy

offered by

Mr. Brumitte was to clean the brick or patch it and, a s previous ly

noted, experttestimony was presente d that the only way to remedy the br

ick problem was to remove the brick and

relay it. It is our det erminati on that Mr . Brumitt e had ade quate opp ortunity to repair the brickwork prior to Mr. Eastbourne’s instructions, but would not concede that the extent of work necessary

to remedy the pr

oblem was, in fact, n ecessa ry . This is confirmed by Mr. Brumitte’s previously noted testimony that on a scale of one to ten

the quality o f the bric

k work in the Eastb ourne’shouse wa s an eig ht. We next addr

ess the issue of whether the Trial Court’s award of da mages in the amount of $74,514.50 was appropriate.
The record indicates that the Trial Court calcul ated t he amo unt o f the d amage award in this case as follows. The Court first added $413,743.00, the agree d upon cost of construction as set forth-7-

in the original contract, and $28, 561.50, the total additional amount the Eastbournes agr eedto pay as shown by

change orders. The Court deter mined that the sum of

these two amounts, $442,304.50, constituted the total amount the Eastbourne’s were contractually oblig ated to pay for construction of their house. The Court then noted that the Eastbournes, in fact, paid $446,819.00, consisting of $360,000.00 paid to Mr . Brumitt e prior to his dismissal plus $86,819.0 0 paid to Mr . Alcorn to repai r defect s in the house and complete its construction. Accordingly , the Court found that the Eastbournes paid $4,514.50 more for the house than they had c ontracted to. The Court further noted that the Eastb ournes su stained d amage to their home basedupon Mr. Brumitte’s breach of contract and determined that they should ha ve a judgment in tha

t r egard in the amount of $60,000.00. However, by letter dated two da ys after tr

ial, the Court notified the parties that upon further reflectionit had determined that the $60,000.00 judgment should be increa sed to $74 ,51 4.5 0. In doing so, the Cou

rt noted th at “rea sonable a ttempts at repa

ir, even if succe ssful, wou

ld not be a

ble to bring the value of the home up to what it would be without defects.” The Court also noted, appare ntly in justification of

$4,514.50 of the increase, that in its initial award of damages it “failed to include an amount to compensate Plaintiffs for pay ments in excess of the contract.”
Mr. Brumitte

contendsthat the T

rial Co urt’s award of damages should be r eversed upon grounds th at it is no t s up po rt ed by sufficient e vidence in the record - specifically , that there is no proof in the record itemizing the costs of repairing def ects complained of by

the Eastbournes and that no proof was presented con n ecting any particular repair expense with any particular defect attributa ble to Mr. Brumitte, other than the expense of repairing the brick. Mr. Br umitte also notes that Mr. Eastbourne testified at trial that he was only asking the Court for an award of $76,000.00. Mr. Brumitte further asserts that the Trial Cour

t’s ratio nale for

$10,000.0 0 of its sua sponte increa se of d amages fr om $60,000.00 to $74,514.50 is unclear. Finally, Mr . Brumitt asserts that the Eastbournes submitted no credible testimony r egarding diminution in value.
M r. Brumitte ar gues that if the Trial Court’s award of dama ges is not reversed or vacate d it should at least be red uced to the e xtent that it includes $ 7,833.00 r eprese nting co sts of exce ss rental and stora

ge bec ause time

was not of

the esse nce in the contract betwee

n the par ties in this case. Mr. Brumitte contends that the award of damage s should al so be red uced to th e extent tha

t it includes $4,204.00 representing fe es and expenses of expert witnesses. Mr. Brumitte asserts that such expert witness f

ees and e xpenses ar

e only allowabl e under a

motion for

discreti onary

costs pursuant to Tenn. R. of

Civ. Pro. 56 .04 and even then s hould be limited to fees/expenses incurred foractual deposition or trial testimony. Mr. B rumitte also argues that the Court ignored o verag e allowances due him in the amount of $10,717.66.
The Eastbournes argue that the Trial Court’s awa rd of damages was insufficient base d upon un-refuted

expert testimony that, in its final state of completion, the ho use w as devalued between $196,469.00 and $24 5,5 00. 00 a s a r esu lt of M r. B rum it te p oor con st ruc ti on. In cons equence, the Eastbournes contend that the award of damag es should be increased to $200,000.00.
The rec ord showsthat, Mr. Eastbour ne testif ied that he paid

$86,819.00 to remed

y de fects in the house and complete its construction. However, in addition to th is te st im on y, the Eastbournes-8-

also introduced documentation showing a cost-by -trade breakdown of monies pa i d totaling $88,329.85 which they

assert were paid to Mr. Alcorn for completion and repairs. The breakdown sheet shows that $12,037.12 of this amount represents excess storage and renta l costs and fees charged by v ario us expert s to inspect and evaluate the house. These storag e and rental fees and expertinspection and evaluation fees are those same fee s to which Mr. Brumitte otherwis e object s as noted above. Upon cross examination Mr. Eastwood conced es that he is not seeking reimburs ement of

this $12,03 7.12: Q And th en on the n ext it say s, “See next

sheet.” There’s another $12,000 dollars in there. A O ka y. Q And it looks like you ’ve lumpe d in a whol e bunch o f stuff he re. Exces s rental, excess storage, Knox Hardwood Flooring I nspection. The items that are l is ted right here are included in this number that you’re asking t he Court to

award y ou. A No. I’m asking the Court the $76,000.00 he re. The breakdown sheet shows that the $76,000.00 referred t o by Mr. Eastbour ne is act ually $76,292.73. In view of Mr. Eastbourne’ s tes ti mony, we find that the Tria l Court’s allowance of damages in the amount of $86,819.00 for r epairs and c ompletion was excessive by $10,526.27. Ac co rd in gl y, it is our determination that the Trial Court’s jud gme nt should be reduced by $10,526.27.
Mr. Bru mitte’s argument that the judgment aga inst him should be vacated in whol e upo n grounds that it is not supported by sufficient e vidence is without merit. Mr. Eastbourne testified that the $76,292.73 shown on the breakdown sheet constitutes the amount of money he g ave Mr. Alcorn fo r repair and completion of his house. And, although we have determined that the $86,819. 0 0 allowedby the T

rial Court for repair and completion was excessive based upon Mr. Eastbourne ’s te st im on y, we also note the testimony of Dr . Harold Deatherage, a professor of ci vil e nginee ring. Dr. Deatherage testified that $86,819.00 was a “a very reasonable completion number considering the amount

of remedial work

that had t o be done .” This te stimony of Dr. De athere

rage n ecessa rily supports a finding that the lesser amount of $76,292.73 was also reasona ble.
Mr. Brumitte

asserts t hat the Tr ial Court e

rred in f ail i ng to give him credit for monies he spent for certain items which cost more than the amoun

ts allowe d for thos e items und er the c ontract

. Accord ing to Mr . Brumitt

e, he is due a t otal o f $10, 717.6 6 for p lumb ing, el ectri cal, p ainti ng, door locks and flooring overages. Our review of the record shows that on cross examination Mr. Brumitte admits that he’ s not sure

if three electri cal floo

r plu gs, which he i nclud ed as p art of the ov erage amount at $300 .00, were actually installed. It also appears that Mr. B rumitte included a $925.00 charge for door locks in the cha nge orders for which he wa s given credit as part of the $28,561.50 noted above a

nd appea rs to have also inclu ded this amount in the addit ional $10, 717.66 he

seeks in-9-

overage. Accordingly , we find that evidence supports denial of Mr. Brumitte’s claim for overages to the extent of $1,225.00. We do not; however, find evidence supporting the Trial Court’s fa ilure to awar d Mr. Br

umitte the

balance of the am

ount he cl aims for o verag e and, the refore , it is ou r conclusion that the ju dgment against him should be decrease d by an additional $9,492.66 for tha t reason. Fi na ll y, we addr

ess the Ea stbourne s’ conte ntion that $ 70,000.00

is inadeq uate to compen sate them for d

iminution in

the value of their house as a

result of remaining defect s. In support of

this argument the Eastbournes refer

ence the te stimony

of three witnesse s - Mr. Ea stbourne ; Vickie Skofield and James Lee. Mr. Eastbourne testified as follows regarding the value of the house: Q. Mr. Eastbourne, assuming that you were a willing s eller and yo

u met up wit

h a willing buye

r, and y ou’re not under a

ny c ompulsion to

buy – or to sell and so you’re not under any compulsio n to sell, given the current condition of y our home, what do you think is a good and fair and reasonable price to be reached betwee n you and a potential buy

er?
A. I would say $550,000. What I meant $550,000, I meant that would be th e asking price. Not what it would actually go for.
Ms. Skofield, a Loudon

County real estate br

oker whose primary

market is Tellico Village, testified that upon touring the Eastb ournes’ house she noticed s eparat

ion and cr acks in the hardwood floors, co lumns s eparat

ing fro m the ceil

ing and sloping in the floo

r. She fur

ther test ified tha t, without problems, she would price the house at $800,000.00: Q Hy pothetic ally , if

you’ve g ot somebody just coming into y our office wanting to look at a

lake front $800,000 home, would y ou want you take the m to the Ea stb our ne hom e?
A. No. Q. Wh y?
A. Becau se in good co nscience, I could not explain to them why I would think that their $80 0,000 home

should hav e those pr

oblems. That is the

price th at I would put o n that with out proble ms. Ms. Skofield also testified that she “would be very fortunate to get any

where in the upper fives for Mr. and Mrs. E astbourne’s house . I think that it w ould probably be somew

here in the five hundred thousand dollar price range ve rsus the eight hundred thousand dollar price rang e.”1 A letter i n the record from the Tennessee Depart me nt of Commerce and Insura nce Real Est ate Apprais er

Commiss ion dated August 23, 2001, acknowl edges th at Mr. Lee has s ubmitt ed everyt hing t hat i s necess ary f

or renewal of his license, that his li cense will be m ade curre nt after p roce ssing is co mple te and that this should occur in one t o two days. -10- Mr. Lee, a rea

l estate broker, appraiser, and licensed c ontractor, testified that the value of the house, not needing any

repairs and without structural defects, would be $817,500.00. Mr. L ee further testified that, because of obvious visible probl ems in the house and without making any structural determination, the estimated fair market value of the house is $572,250.00.
Mr. Brumitte

argue s that the E astbournes submitte d no cred ible testi mo n y reg arding diminution. In support of

this argument, he points out that, although Mr. L ee initially testified that he was curren

tly l icensed as an app raiser, upon cro ss examination he admitted that his license had been suspende d. Mr. Br

umitte asserts that it also developed upon cross examination that Mr. Lee’s appraisal was “unsound and without merit.” The record shows that after testify ing that he wa s a licen sed appr aiser, M r. Lee was cr

oss examined b y Mr . Brumitt e’s attor ney as follow s: Q Mr. Lee I

have a report printed this morning from Tennessee R eal Est ate Appraisers Commission th at indica tes that y our rea l estate a ppraise r’s lice nse was suspende d on March 8 of 2001 . Do y ou deny that?
Mr. Lee subseque ntly testifie d that, al

though h is license was in effect when he appr aised the Eastbour nes’ house and prepared hi s apprai sa l report in December of 2000, his license was suspendedas of March 8, 2001, for failure to meet continuing education requi remen ts 1 . After hearing this testimo ny, the Tria l Court sta

ted that Mr . Lee ’s appra

isal repo rt and te sti mony “w ill come into evidence and I

will give it such weight as I think it deserves.” The only other

refer ence to t he reco rd made b y Mr . Brumitt

e in support of his assertion that Mr. Lee ’s appra

isal r eport was unsou

nd and wit

hout merit

is Mr. L ee’s ad mission und

er cros s examination that his ap

praisal r eport er roneously shows two bedrooms on the second level of the Eastbour nes’ home that are not there. Howeve r, we als o the follo wing ad ditional te stimony

in that regard: Q And you don’t even a ccount for t

he bonus room but you account f or two bedroomsthat don’ t exist.
A Well, sir, I’m accounting for five hundred and thirty -four square feet of finished area on Leve

l 2.2 Our review of Mr. Campbell’ s report shows t

hat us e of th e word “bolded” apparen tly refer s to th e capit ali zati on of lett ers in the followin g senten ce fro m that re por t: “ It is my und erstand ing that all issues D O N OT relate to any s truct

ural i ssues .” -11- Q. But there’s a big differe nce between a bedroom and a bo nus room as fa r as evaluation. Isn’t there? A. No, sir. It’s mostly

considered heated finished square footag e. The only other evidenc e referenced by Mr. Brumitte in sup port of hi s assertion that the Eastbour nes’ presented no credible proof reg arding diminution in value is the testimony of Michael Ben Cambell, a licensed and certif ied real estate appraiser. Mr. Campbell testified as f ollows regar ding the limitationsplaced o n the scop e of his a ppraisa l: Q In all fairness, y

our appraisal was limited to seven particular areas that you were told to look

at. A Yes. Q And your scope

as an appraiser under Standard 5 was not to look or t

ake into consideration any other issues other than look at these five thing, look at the transition of the floor and the brick veneer and the elevation of the front windows and the li ke, and th at was all you were a sked to loo k at?
A Yes. Q And you were

told that these issues and you bolded 2 , I guess in y

our report, do not rela te to any structur al issues; is that cor

rect? A That’s correct. Q And in fact if assuming hypothetica

lly that those issues did relate to structura l issues, it would impact the home? A It would impact the market value. The seven areas Mr. Campbell testifies he was reque sted to examine were the brick paver sidewalk and patio, the elevation of the front windows, the brick veneer on the outside of the house, cracks in th e concr ete of t he garage f loor, the bo nus ro om/s tair t read fl oorin g t ran sition, the hardwoodmaple flooring and the slope in the utility room floor. Mr. Campbe ll’ s testimony and report s how his findings and conclus ions reg arding each of these ar eas as f ollows:-12-

1. Brick p aver sid

ewalk and patio - Mr. Campbell noted in his testimony that joint lines in the patio were no t str aigh t. His report noted, however, that the joint lines were acceptable and he concluded that this would have no negative impact on marke t value.
2. Elevation of front

windows - Mr. Campbe

ll testified that it wa s pointed out to him that the garage windows and the f ront w indows we

re not at the same elevatio n, but concluded th is would have not have a negative impact on mar ket value. 3. Brick v eneer - Mr. Campbe ll notes in his report that

“the issue of the brick work spacing (oversize and undersized mortar joints) does not impact the market value of the home.”
4. Cracks in garage f

loor concrete - Addressing this issue as ae sthetic and not structural, Mr. Campbe ll asserts in his report “It has bee n my experience that c oncrete floors often have s urfac e cracks which does not impact market value.” 5. Bonus room/stai

r tread flooring transitio n - Mr. Cam

pbell’s r eport not es a differe nce in elevation between the stair tread and bonus ro om flooring bu t indicates in his report that had the bonus room been covered with carpet flooring and pad this difference

would have been eliminated Mr. Campbell concludes that “the elevation difference is not a tripping hazard nor a negative impact on market value.” 6. Hardw ood maple

flooring - Mr. Camb ell notes a gap in thehardwood flooring between the kitchen and the den but concludes that it would not negatively impact market value.
7. Slope in floor of utility room - Mr. Campbell states in his report that in his opinion a better description of this problem “would be a low spot area (Valley ) compared

to a sloping floor.” Mr. Campbell notes his understanding that this problem is not structural and concludes that it has no impact on market value. However, Mr. Campbell also states that “[i]f the floor issue was structur al, then this would impact market value.”
In view of th

e limited s cope of M

r. Campbe

ll’s examin ation and

his admissi on that hi s co nclusions ar e based on an assumption that none of the problems he examined are ca used by structural defects, we do not find that his testimony a nd report are suf ficient t o nega te other evidence presented in this cas e that the Eastbournes’ house suffered diminution in value. At one poi nt in his te st im on y, Mr. Campbell admits thatMs. Scofield, who testified that the house did suffer diminution in value, is a reliable or good source o f informa

tion and th at she is v ery

knowledg eable

of the Tellico Vill age market. Additionally, althoug h Mr. Campbell’s appraisal is premised on the theo ry that there are not structural problems in the house, the Trial Court determined that there are structur al proble ms basedupon its own inspection of the house and evidence presented at trial. I n this regard the Court stated a s follows:

All you got to do is walk ac ross the floor and

you could feel the difference in the elev ation of th

e level o f the floo

r. And it’ s noti ce ab le wh en yo u walk-13-

across it. And not o nly

that, but there wereplaces where the sloping that at times to me it seemed as if the floor was not substantial. And that is, it didn’t feel like a solid flo or, for s ome rea son, it didn ’t. And so I th

ink this is a

real pr oblem. I think the f

loors – if I had to pick out one thing that w ould troub le the pla intiffs wi th regard to the construction of this home, it would be the fact that the wall which supports the floor trusses out there on which the

y r est, come togethe r, was ob viously

built substantially lower than t he sup porti ng wall s at ei ther en d. It was buil t wron g. There again f

ailure to see the de fects. A

nd the expe

rts who te stified a

ll said that it would be a proble

m to come

in and ra ise, jack up the tr

usses bec ause of the ra cking e ffect th at that co

uld have o n the house

and the sheetrock

and the nails and other things of tha

t sort. And

I ac cept tha

t. The Trial Cour

t further found tha t the cra ck in the hardwood floor was related to the trus ses, and that the c

racks in the gar age fl oor wer

e worse than would be normal. With respect to defects not included in Mr. Campbell’s appraisal, the Court found that columns on the outside porch don’t line up because the heads of

the colum

ns are to o big. “ And what c ould be do ne to rep air those now and to make it fi t better, I don ’t know. B ut it still, it d oes – if y ou stand th

ere and look at it , i

t’s a problem.” Neither the Trial Court no r this Co urt is boun d by the testim

ony of the Ea stbourne s’ witnesses even to the extent that that testimony is not contradicted. Ford Motor Co. v. Taylor , 446 S.W.2d 521 (Ten

n. Ct. App. 1969). Our review of the record in this case does not convince us that the Eastbournes shou ld re ceive increased damag es in the requested amount of $200,000.00. However, based upon the findings of the Trial Cour t and the record as a whole, it is our determination that the Eastbournes should receive some additional damage s in order that they may be adequately

compensated for diminution in the value of their hou se and fo

r that re ason we increas e the award for diminution in value by $20,000.00.
In sum, the original award of da mages is decreased by

the amount of $20,018.93 and increased by the amoun

t of $20,00 0.00 . Acc ordingl y, t he orig inal war

d of dama ges in the amount of $74,514.50 is hereby c hanged to $74,495.57.
For the foregoing reasons the judg ment of the Trial Court is affirmed as modified an d th e cause remanded for enforcement of the judgment and

collection of

costs below. Costs of appeal are ad ju dg ed ag ai ns t R og er Br um it te , d /b /a Ro ge r B ru mi tt e C on st ru ct io n a nd hi s s ur et y.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE