### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE June 2000 Session

KEN SHUMAN v. JAMES PARKHU RST d/b/a PARKHURST HOME IMPROVEMENT

Direct Appeal from the Circuit Court for Sumner County No. 17825C Carol Soloman, Special Judge

No. M1999-02043-COA-R3-CV - Filed August 31, 2000

James Parkhurst d/b/a

Parkh urst Home Improvement appeals the trial court’s final judgment awarding Ken Shuman $8,02 1.14 in actual damages for breach of oral construction contract and $2,406.33 in attorney’s fees based upon a finding of fraud

in violation of the Tennessee Consumer Protection Act

. Parkhurst raised two issues on appeal, contend ing that the dama

ges awarded in

this homeconstruction dispu

te were not leg

ally warranted and that the trial court erred in finding fraud, thereforejustifying an award for attorney’s fees under the Act. We conclude that Shuman presented sufficient proof to find a violation of the Act and to support his claim for damages and for attorney’s fees. Accordin

gly, we af firm the trial cou

rt’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed;

and Remanded

D AVID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , J.J., joined.

John R. Phillips, Jr., Gallatin, Tennessee, for the appellant, Ja

mes Parkhurst

d/b/a Parkhurst Ho

me Improvement.

C. Tracey Parks, Gallatin, Tennessee, for the appellee, Ken Shuman.

OPINION

Mr. Shuman entered into an oral agreement with Mr. Parkhurst for construction of a 24'x 32' t wo- sto ry add iti on t o Mr . Sh uma n’s exi sti ng ho use in W est mor ela nd, Sum ner C oun ty, Tennessee. According to the agreement, Mr. Parkhurst was to frame the a ddition, get it in the dry, put on the vinyl siding, and hang the sheetrock. Mr. Shuman was to finish the sheetrock, do the rough, install the plumbing and electrical wiring, paint the walls and install the flooring. Mr. Shuman asserted that the payment terms per the agreement we re $10,000 for labor plus 10%1 Section 47-18-109(a)(3) of the Tennessee Code provides t hat treble damages may be awarded when the court finds a knowing or willful use of an unfai r or deceptive tr

ade practice. See Tenn. Code Ann. §47-18-10 9(a)(3) (1995).

2 Attorney’s fees may be awarded pursuant to the Tennessee Consumer Protect ion Act in an approp riate case. See Tenn. Code Ann. § 47-18-109(e)(1) (1995) (“[u] pon a finding by t he court that a provis

ion of this part

has been violated, the court may award to the person bringing such action reasonable attorney’s fees and costs.”).

-2- above material c

osts with the projec

t cost not to exceed a

pproximately $

40,000. Mr. Parkhu

rst contended that the agreement was for labor at an hourly rate of $15.00 for Mr. Parkhurst, $10.00 for his workers a

nd an additional 10

% above materia

l costs.

Mr. Parkhurst wor

ked on Mr. Shuman’s

home addition for t

en weeks from la

te September of 1997 to December 10, 1997, whereupon Mr. Parkhurst walked away from the project. Mr. Parkhurst had been paid a total of $38,209.39. Mr. Parkhurst alleged that he walked away from the project because Mr. Shuman installed sheetrock prior to inspec tion of the electrical wiring in violation of the applicable building code. Mr. Shuman asserted that Mr. Parkhurst walked away because Mr. Parkhurst did not want the friendship betwe en the two parties to suffer. After Mr. Parkhurst ceased working on the addition, Mr. Shuman noticed problems with Mr. Parkhurst’s construction, some of which caused water damage to Mr. Shuman’s home. Mr.

Shuman also discove

red that he had be

en charged fo

r certain mater

ials which were not used on the project.

Mr. Shuman sued Mr. Parkhurst for breach of contract and alleged that Mr. Parkhurst’s charging for materials not actually used wa s a deceptive and fraudulent trade practice in violation of the Tennessee Consumer Protection Act. See Tenn. Code Ann. § 47-18-101 et seq . (1995); Tenn. Code Ann. § 47-18-109(a)(1) (1995) (“[a]ny person who suffers a n ascertainable loss of money or property, rea

l, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or

practice decla

red to be unlawfu

l by this part,

may bring a

n action individual

ly to
recover actua

l damages.”).

Mr. Parkhurst res

ponded that his wal

king away

from the project d

id not constitute a breach because the parties’ agreement was a simple arra ngement for pay by

the hour work so that either party could terminate the working relationship at any time. Mr. Parkhurst denied any fraud or violation of the Tennessee Consumer Protection Act. Mr. Parkhurst further stated that there were no damages to be had since Mr. Shuman only paid for the work Mr. Parkhurst did, and Mr. Shuman expected to expend more money to complete the project regardless of Mr. Parkhurst’s departure.

The trial court entered judgment for Mr. Shuman, awarding him $8,021.14 in damages and $424.75 in discretionary costs. Additionally, the trial court found that Mr. Par khurst violated the Tennessee Consumer Protection Act by fraudulently charging for thirty-two 2"x6" pressure treated boards which were not brought to the construction site. The trial court declined to award treble damages 1 but awarded attorney’s fees in the amount of $2,406.33. 2-3-

Mr. Parkhurst filed notice of appeal, raising the following issues, as we perceive them, for this court’s review:

1. Whether the damages awarded in this home construction dispute were legally warranted.

2. Whether the trial court erred in finding fraud invo lving thirty-two 2"x6" pressure treated boards, therefore justifying a n award of $2,406.33 in attorney’s fees pursuant to the Tennessee Consumer Protection Act.

Under Tennessee law, awarding damages in breach of contract actions operates to put the plaintiff in as good of a position as he would have been in had the contract been performed. See Grantham and Mann, Inc. v. American Safety Prods., Inc. , 831 F.2d 596, 601 (6th Cir. 1987). Plaintiff bears the burden of proving damages. See Volasco Pro ds. Co. v. Lloyd A. Fry

Roofing Co. , 308 F.2d 383, 392 (6th Cir. 1962) cert. denied , 372 U.S. 907, 83 S. Ct. 721, 9 L. Ed. 2d 717 (1963). If da

mages have bee

n shown to exist, then d

amages may

be granted as l

ong as there is substantial evidence in the record to allow the factfinder to draw a reasonable infere nce and make a fair and reasonable assessment of the amount of damages to award. See Grantham and Mann

, 831 F.2d at 602; Lee Shops, Inc. v. Schatten-Cypress Co. , 350 F.2d 12, 18 (6th Cir. 1965), cert. denied , 382 U.S. 980, 86 S. Ct. 552, 15 L. Ed. 47

0 (1966); Redbud Coop. Corp. v. Clayton , 700 S.W.2d 551, 561 (Tenn. Ct. App. 1985); Cummins v. Brodie , 667 S.W.2d 759, 765 (T enn. Ct. App. 1983).

As part of his case in chief, Mr. Shuman testified that he incurred expenses totaling $8,521.14, the breakdown of damages being as follows: $1,000.00 for additional labor and materials to put in piers for foundation, $925.00 to repair and replace water damaged sheetroc k and insulation in ne

w construction, $3 00.00 to repair da maged walls on in

terior of origin

al house and to re-trim kitchen window and door, $967.84 to repair vinyl work, $2,000.00 for Mr. Shuman’s labor to c

orrect problems

caused by M

r. Parkhurst, $2,3 50.00 for wage s paid to Tim Garris to help salvage damages, and $978.30 for materials charg ed to the job but not used. To support his testimony, Mr. Shuman introduced into evidence numerous bills and receipts for charges for labor and materials, pictures of the home addition which showed buckling of the vinyl siding, and a video tape which showed various defects in the construction of the a ddition as well as areas of water damage. With regards to damage s, the trial court awarded Mr. Shuman $8,021.14, reducing the claim for the piers by $500.00. Mr. Parkhurst avers that the e xpenses claimed by Mr. Shuman do not represent a loss and thus do not support the damages award.

We affirm the tria

l court’s judgme

nt for Mr. Shuman of

$8,021.14 in damag

es. This court’s review o

f the trial court’ s findings of fac t is de novo with a presumption o f correctness, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Because the proof of damag

es consisted solel

y of conflic

ting testimony

of Mr. Shuman and Mr

. Parkhurst, this court recog

nizes that:-4-

[w]here the issue for decision depends on the determination of the credibility of witnesses, the trial court is the best judge of the credibility and its findings of credibility are entitled to great weight. This is true because the trial court alone has the opportunity

to observe the ap

pearance and t

he demeanor of th

e witnesses.

Tenn-Tex Properties v. Brownell-Electro, Inc. , 778 S.W.2d 423, 426 (T enn. 1989); Royal Ins. Co. v. Alliance Ins. Co. , 690 S.W.2d 541, 543 (Tenn. Ct. App. 1985). The evidence in the record does not preponderate against the findings of the trial court. The rec ord contains sufficient evidence to support Mr. Shuman’s allegations of damages, and given the limited scope of our review, this court must give great weight to the decision of the trial court reg arding matters of cr edi bil ity.

The seco nd i ssu e on app eal inv olv es t he t ria l co urt ’s f ind ing o f fra ud c onc erni ng th irt ytwo 2"x6" pressure treated boards which resulted in an award of attorney ’s fees of $2,406.33. See Tenn. Code Ann. § 47-18-109(e)(1) (1995) (“[u]pon a finding by the court that a pr ovision of this part has been

violated, the cour

t may award

to the person bring

ing such action r

easonable attorney’s fees and costs.”). Mr. Shuman claimed that Mr. Parkhurst charg ed him $101.60 for sixteen 2"x6"x10' pressure treated boards and $79.36 for sixteen 2"x6"x8' pressure treated boards, neither o

f which were de

livered to or used

on the constructio

n site. A witness, Ti

m Garris, testified that he observed 2"x6" pressure treated boards being used on a g reenhouse being constructed by Mr. Parkhurst on property ow ned by Mr. Parkhurst’s father and on a porch Mr. Parkhurst was building on Mr. Parkhurst’s property. Mr. Parkhurst claimed that the pressure treated lumber was ordered for Mr. Shuman and was delivered to the construction site on Mr. Shuman’s property. Mr. Parkhurst admitted that Mr. Shuman was charged for the lumber , but he claimed that he did not know what became of the lumber after it was delivered to Mr. Shuman’s property. Upon this evide nce, the tri al court fou nd fraud on b ehalf of Mr. Parkhurst , stating, “Mr. Parkhurst found an opportunity to charge something to a job and to take a dvantage of it. . . . that was fraud . . . . it was thievery.” Based upon the finding of fraud, the trial court awarded Mr. Shuman attorney’s fees in the amount of $2,406.33, which was calculated as 30% of the damages award. “Unless the evidence preponderates against the findings, we must af firm, absent error of law.” Dailey v. Bateman , 937 S.W.2d 927, 930 (Tenn. Ct. App. 1996). Based upon the evidence in the record, there is a sufficient basis for finding a violation of the Tennessee Consumer Protection Act, namely the fraud surrounding the thirty -two 2"x6" pressure treated boards. Thus, we affirm the award of attorney’s fe es, holding that this is an appropriate case for such award.

Mr. Shuman has requested additional attorney’s fees for this appeal in the amount of $1,800.00 pursuant to section 47-18-109(e)(1) of the Tennessee Code. In this court’s discretion, the request is denied.-5-

For the foreg

oing reasons, th

e trial court’s ju

dgment for Mr. Sh

uman is affirmed.

Costs of this appeal ar

e taxed to the appel

lant, James Parkhur

st d/b/a Parkhurst H

ome Improveme

nt, and his sur ety, for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE