# FILED April 6, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) BILLY WESSON and , ) Madison County Circuit Court DIANE WESSON , ) No. C-98-6 and No. C-98-68 ) Plaintiffs/Appelle

es. )

) VS. ) C.A. No. 02A01-9808-CV-00225 ) WOODWORKS, INC. , ) ) Defendant/Appellant. ) ) ) WOODWORKS, INC. , ) ) Plaintiff/Appella

nt. ) ) VS. ) ) LARRY CUPPLES,

d/b/a CUPPLES ) CONSTRUCTION COMPANY , ) ) Defendant/Appellee. )

______________________________________________________________________________ From the Circuit Court of Madison County at Jackson. Honorable Whit Lafon, Judge

A. Russell Larson , Jackson, Tennessee Attorney for Appellant Woodworks, Inc.
David A. Riddick , HOLMES, RICH, SIGLER & RIDDICK, P.C., Jackson, Tennessee Attorney for Appellees Billy Wesson and Dia ne Wesson and Appellee Larry Cupples.

OPINION FIL

ED: REVERSED AND REMAN DED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)Defendant Woodworks, Inc., appeals the circuit court’s final judgment in the amount of $8288 which was entered in favor of Plaintiffs/Appellees Billy and Diane Wesson. We reverse the circuit court’s judgment based upon our conclusion that the court

erred in direct

ing a verdict in favor of Defendant/Appellee Larry Cupples, d/b/a Cupples Construction Company, and we remand for a new trial.

Th e Wessons instituted these proceedings in April 1997 when they filed an actio n against Woo dwo rks in t he G ener al S ess ion s Co urt of M adi son Cou nty. The Wes sons’ complaint contained the fol

lowing allega

tions:
[Woodworks] sold to [the Wessons] a product th at was unfit for its intendedpurpose. [The Wes s ons] seek rescission and/or revokation [sic] of sales agreement regarding the purchase of wooden flooring products from [Woodworks] and a refund of amounts

paid to [Woodworks] along with any incidental or consequential da

mages.

Woodworks responded to the Wes sons’ complaint by filing a motion to di

smiss contendin g, inter alia , that the general sessions court lacked jurisdiction over Woodworks becaus

e Woodworks was a Georgia corporation which did not condu ct business in the state of Tennessee.

App aren tly, the general se ssions court denie

d Woodworks’ motion to dismiss. The record reflects that, in January 1998 after conducting a trial, the court ente red a judgment in the amount of $8288 in favor of the Wessons.

Woodworks the n ap peal ed t he j udgm ent to t he C irc uit Cou rt o f Ma dis on C oun ty. When Woodworks appear ed in the circuit c

ourt, however, it

apparently

did not renew its mot

ion to dismiss for lack of personal jurisdiction. The technical record submitted on appeal fails

to contain
a written motion to dismiss except for the one filed in the general sessions court. The transcript of the trial held in circuit court likewise contains no mention of a motion to dismiss.

Moreover, the record on appeal does not contain a copy of the claim filed b y Woodworks against Appelle e Larry Cupples, d/b/a

Cupples Construction Company. According to th e Appellees ’ brief, howeve r, after appea

ling the judgmen

t against it to the c

ircuit court,Woodworks filed a separate action against Cupples in circui t court. Th e two actions were tried together, and the circuit court’s final judgment, entered in July 1998, granted Woodworks’ motion to consolid ate the two cases. In essence, therefore, this lawsuit involved a claim by the Wessons against Woodworks and a third-party claim by Woodworks ag ainst Cupples
. The gist of Woodworks’ third-party

claim was that an y damages incurred by the Wessons were caused by Cupples’ negligence in installing the flooring and not by a ny defect in the flooring itself.

At the trial held in

circuit court,

the Wessons testified that they purchased the subject hardwoodflooring products from Woodworks in February 1995. In 1994, the Wessons had entered into a contract with Cupples for the construction of a new home. The Wessons instructed Cupples to purchase the hardwood flooring from Woodworks with funds fr om the Wessons’ construction loan. Woodworks previous ly had mailed flooring samples to the Wessons. Woodworks shipped the hardwoodflooring in sealed box es to Averit t Express in Jackso n. Cupples picked up t he floorin g, transportedit to the construction site, and stored it in the dining room of t he partia lly-constructed homefor several weeks. Cupples’ employees then installed the flooring in the home’s foyer, dining room, and living room.

In May 1995, shortly after moving into their new home, the Wessons noticed problemswith the hardwood flooring. Billy Wesson testified that the floor had a wavy patte

rn to it,
as if the flooring had buckled. Wesson also testified tha t the flooring ha d separated in pla

ces, particularly

at the corners. Diane Wesson corroborated her h usband’s testimony that the flooring had buckled. She testified that t he wood bulged or

bowed in places and sank in others. On most of the boards, the edges had risen higher than the center. She also observed that separations had appeared between the floo

rboards.
Larry Cupples testified th

at his company installed the Wessons’ hardwood flooring
corr ect ly; however, Cupples acknowledged that he was not present when the actual installation was performed. In May 1995, Cupples observed that the newly-installed

flooring was cupping, in that the edges of the flooring were rising while the centers stay ed in place. Cupples also noticed that the flooring was separating

at the joints. The pr

oblems appeared

to grow worse

over a period

of time. Cupples had usedWoodworks flooring once before and had not experienced any pr oblems with theproduct. In this case, however, Cupples believed that the problems occurred because the flooring containedan excessive amo un t of moisture. Cupples testified that the cupping of the wood was caused by the drying-out proce

ss. Cupples explained that the wood contracted as it dried out, thus producing the cupping effect. Cupples estimated that pur

chasing and inst

alling a new flo

or would cost $8288.

Several months after disco vering these

problems, the Wessons hired home inspector Dale Catlet t to exami ne the floor ing. As part of his inspection, Catlett crawled under the house to check the crawl space

for excessive moist

ure. Catlett conf

irmed that a

vapor barrier had

been placed underneath

the house to prevent it from absorbing moisture. Catlett used a moisture meter to detect the presence of moisture under the house, and the resulting readings indicated relat ively low mois ture levels, be tween eight an d ten percent. Catlett did not know what the moisture levels were in the crawl space in May 1995, but he did not believe excessive moisture had been a problem because he didnot observe any

mold or mildew on the

floor jo ists under the house. In Catlett’s opinion, the problemswhich haddeveloped in the We ssons’ flooring were caused by excessive moisture in the wood at the time of

installation. Catle

tt explained that hardwood flooring was kiln-dried until the moisture content of the wood was as low as six or seven perce nt. If the wood was not properly dried, the wood would continue to shrink after installation a s it lo st moisture. Catlett testified that the Wessons’ flooring had shrunk after install ation in both width and length, thus causing the separations to appear between the boards and causing the edges of the boards to turn up. Catlett was confident that the hardwood flooring was expos ed to w ater at some point i n time, but he could n

ot tell if it happened at the factory, during transport, or at the job site.

The only witness for Woodw orks wa s Jim Tibbs, the owner and president of Woodworks’ parent company, Georgia Flooring Distributors. Woodworks distributed the products sold to the Wessons, as well as other hardwood flooring prod uct s, but Woodworks did not manufacturethe products. Tibbs examined the Wessons’ flooring on the day before the circuit court trial. Contrary to the other witnesses’ testimo

ny, Tibbs tes

tified that, in his op

inion, the problems withthe Wessons’ floor

ing were cause

d, not by exce

ssive moisture in

the wood, but by excessive moisture in the surrounding environmen t at the time of installation. Tibbs testified that all three problemsobserved by the Wessons, the cupping, the buckling, and the separating , were caused whenthe wood absorbed mois ture from the env

ironment. Tibbs explained thatthe cupping effect resulted when water underneath the house caused the back of the flooring to expand at a faster rate than the top or faceof the flooring. According to Tibbs, this expansion of the wood also caused the flooring to even tually buckl e and separate. Tibbs testified that, in previous discussions, Billy Wesson indicatedthat the Wessons once had moisture problems underneath the house but that Cupples had corrected the problems. Tibbs

further testifie

d that, while

examining the flooring on the previous day, he detected a hig

h moisture level wi

th a moisture meter

. Tibbs opined th

at, although the flooring was properly installed, the flooring should not have been i nstalled in this environment b ecause it contained too much moisture. Tibbs agreed that the only way to remed y the problem s would be to replace the floor.

Based on the foregoing evidence, at the trial’s conclusion,the circuit court directed
a verdict in favor of Cupples on Woodworks’ third-party claim. The jury then returned a

verdict in favor of the Wessons and against Woodworks in the amount of $8288, and the circuit court entered a judgment accordingly.

On appeal, Woodworks presents the following issues for this court’s review:

1. Whether

or not there was ju

risdiction over the

Defendant, Woodworks, Inc. 2. Whether

the evidence sup

ported an implied w

arranty in regard to Woodworks, Inc. 3. Whether

the Court was in er

ror in directing

a verdict a

s t o Larry Cupples Construction Company
.
As its first issue, Woo

dworks contends th

at the circuit

court erred in f

inding that it hadpersonal jurisdiction over Woodworks. We conclude that Woodworks waived this issue for purposes of appe

llate review by

failing to raise

it in the circuit co

urt.
Objections to personal jurisdiction may be waived by a party’s consent

or failure to object. M

eighan v. U.S. Sprint Communications Co. , 924 S.W.2d 632, 639 n.4 (Tenn. 1996). Unless raised in a timely manner, a party ’s objections to personal jurisdiction are deemed waived.Dixie Sav. Stores, Inc. v. Turner , 767 S.W.2d 408, 410 (Tenn. App. 1988). Thus, if a party makes
a general appearance and does not raise the i ssue of personal jurisdic

tion, “the courts c

ustomarily find that the party has waived its objections” thereto. Id
. When a defendant “makes an appearance in a pending mat ter withou t attackin g in personam jurisdiction, and seeks affirmative relief from the court, or acts in a manne

r inconsistent with

the claim of absence of jurisdiction,” the defendant has made a general appearance and has consented to the jurisdiction of the court. Dep artmen t of Human Servs. v. Daniel , 659 S.W.2d 625, 626 (Tenn. App. 1983).

The record in the present case reflects that Woodworks appealed the genera l sessions court’s judgment

to the circuit court and

that it appeared in the circuit court without raising the issue of the court’s personal jur

isdictio n. We hold that, under these circumstances, Woodworks has waived the righ

t to challenge th

e circuit court’ s jurisdiction over it.

Our conclusion that Wood

works waived this i ssue is supported by the general ru

le that a p arty who fails to raise an issue at the circuit court level waives its right to have the issue reviewed by this court on appeal. See, e.g. , Dement v. Kitts , 777 S.W.2d 33, 36 (Tenn. App. 1989). We believe that this principle applies here because, in appealing the judgment of the gene ral sessions court, Woodworks was entit led to a trial de novo in the circuit court. See T.C.A. § 27-5-108(c) (1980). In a trial de novo , the circuit court tries the lawsuit anew, as if it had originated in

the circuit court. Simms Elec., Inc. v. Rober son Assocs. , No. 01A01-9011-CV-00407, 1991 WL 44279, at *2 (Tenn. App. Apr. 3, 1991) . The parties may assert therein

the same claims

and defenses that they asserted i n the general sessions court. Clark v. Metropolitan Gov’t , 827 S.W.2d 312, 318 (Tenn. App. 1991) (Koch, J., concurring). The issues are tried as if they “had not been heard befor e and as if no decision had been previously rendered.” Black’s Law Dictiona ry 392 (5th ed. 1979). In our view, this procedure require d Woodworks, as the appellant, to raise in the circuit court all of the issues it wanted retried by that court, including that of personal jurisdiction.

Moreover, as previously indicated, Woodwor

ks filed a separa

te acti on agai nst Cupple s in the circuit court whi ch later was con

solidated with its ap

peal against the

Wessons. Woodworks’ action of seeking such affirmative relief in the circuit court provides additional support for our conclusion that Woodworks waivedthe defense of lack of personal jurisdiction. See, e.g. ,1 We note that the trial transcript may not contain a complete account of what transpired a t trial. For example, the transcript does not contain opening or closing arguments of counsel, and it does not contain the circuit court’s instructions to the jury. We remind the parties that the appellant has the

duty to prepa

re “a transcri

pt of such part of t

he evidence or p

roceedings as

is necessary to convey a

fair, accurat

e and complete ac

count of what tra

nspired with respe

ct to those issues that are the bases of appeal.” See T.R.A.P. 24(b); accord Nickas v. Capadalis , 954 S.W.2d at 735, 742 (Tenn. App. 1997). As submitted to this court, the transcript contains no evidence that Woodworks either (1) renewed its motion to dismiss for lack of personal jurisdiction at any time before or during the trial or (2) moved for a dire cted verdict at the trial’s conclusion. Dooley v. Dooley , 980 S.W.2d 369, 372 (T enn. App. 1998) (h

olding that defe

ndant in action to enforcedivorce decree wai ved perso nal jurisdiction defense by filing motion seeking to modify decree’s support provisions); In re Grosfelt , 718 S.W.2d 670, 672 (Tenn. App. 1986) (holding that defendant in paternity action waived personal jurisdiction defense by not raising defense until after he filed motion to transfer case to circuit or chancery cour t for jury trial on paternity issue).

We note that Woodworks still could have preserved the defense of lack of personal jurisdiction if it had timely raised this defense in the

circuit court. See Proctor & Gamble Cellulo se Co. v. Viskoza-Loznica , 33 F. Supp. 2d 644, 662 (W.D. Tenn. 1998). A defendant does not waive the defense of lack of pe rsonal jur isdictio n merely by filing a claim against a third party, provided the defendant asserts the t hird-party

claim and the per

sonal jurisdiction d

efense in the sam

e responsive pleading. Id .; see also Dooley v. Dooley , 980 S.W.2d 369, 371-72 (Tenn. App. 1998) (noting that defendant who unsuccessfully raises per son al jurisdiction defense has no alternative
e xcept to answ er and defend or risk entry of default judgment). He re, however, Woodworks apparently

filed a separate action against Cupples without renewing its motion to dismiss for lack of personal jurisdiction. Under these circumstances, Woodworks did not preserve its defense of lack of personal jurisdiction.

For several reasons, we

also reject Woodworks’ argument that, based upon the sealed container doctrine, the circuit court er red in submitting the Wesso

ns’ claim again

st Woodworks to the jury. As an initial matter, we note that the trial transcript p

rovided to this cour

t fails to indicate whether Woodworks moved for a

directed verdict on this issue at theconclusion of the p roof at trial. 1 Acco rdi ngly, we are not convin ced that this issue i

s p rope rly before this court for review. See Potterv. Tucker , 688 S.W.2d 833, 835 (Tenn. App. 1985) (holding that, i n order to pr eserve for appellate review issue of whether

circuit court erred in f

ailing to direct v

erdict in its favor

, party mustpresent motion for directed verdict at conclusion of all proof at trial).

In any event, the proof presented at trial was not sufficient to support the application of the sealed container doctrine to this case. As codified in Tennessee, the sealed container doctrine provides that no products liability action

shallbe c ommenced or maintained against any seller when the product is acquired and sold by the seller in a sealed container and/or when the pro duct is acquired and sold by the seller under circum s tances in which the seller is afforded no re

asonable opportunity

to inspect the product in sucha manner which would or should, in the exercise of reasonable care, reveal theexistence of the defective condition.

T.C.A. § 29-28-106(a) (Supp. 1994). Although the proof in this case showed that Woodworks sold the hardwood floorin

g in sealed cont

ainers, the proof

failed to reflect that Woodworks acquired the flooring in these sealed containers such as to trigger application of the sealed container

doctrine. The proof also failed to

address whether Woodworks had a reasonable opportunity to inspect the flooring for defects prior to shipping it to Cupples.

We further

notethat, as codified in Tennessee, the sealed container doctrine does not apply to actions based upon a breach of an express or implied warranty, as defined by Tennessee’s Uniform Commercial Code. See T.C.A. § 29-28-106 (a)(1) (Supp. 19

94); see also T.C.A . § 47-2-313 (1996) (addressing creation of express warranties); T.C.A. § 47-2-314 (1996) (addressing creation of implied warranty of merchantability); T.C.A. § 47- 2-315 (1996) (addressing creation of implied warranty of fitness for pa

rticular purpose

). As framed, the

Wessons’ complaint a

gainst Woodworks encompassed

a claim for breach of implie

d warranty

by allegin

g that the produc

t purchased was u

nfit for its intended purpose. Moreover, in his trial testimony, Jim Tibbs acknowledged that, when it sold the flooring, Woodwor

ks warranted tha

t the flooring wa

s fit for its intended purpose and that it was notdefective. Accordingly, we conclude that the c ircuit court did not err by failing to direct a verdict in Woodworks’ favor based upon the sealed container doctrine.

We agr e e, however, with Woodworks’ asser

tion that the circu

it court erred in directing a ve rdi ct in favor of Cupp les on Woodworks’ th

ird-party claim. In ruli

ng on Cupples’motion for directed verdict, the circuit court was required to take the strongest legitimate view of the evidence in favor of the non-moving party, Woodworks. Eaton v. McLain , 891 S.W.2d 587, 590 (Tenn. 1994). That is, the court was required to resolve any conflict in the evidence by construing it in t he light most favorable to Woodworks and by discarding all countervailing evide nce. Id
. Cupples was entitled to have his motion granted only if, after assessing the evide nc e according to the foregoing standard, the circuit court determined that reasonable

minds could not diff

er as to the conclusions t o b e drawn from the evidence. Id . If it entertained any doubt as to the proper conclusions to be drawn from the evidence, the court was required to d

eny Cupples’ motion and to submit the case to the jury. Id
.

Applying this standard, we conclude that the circuit court er

red in granting Cupple

s’ motion for directed ve

rdict. Contrary to th e circuit co urt’s ruli ng, Woodworks presented evidence from which the jury could have found that Cupples negligently installed the hardwood flooring and th at this negligence caused the Wessons’ damages. Specifically , Woodworks presented

evidenc e that the problems with th

e Wessons’ flooring were caused by excessive moisture

in the Wessons’ home. Jim Tibbs testified, wi thout objection, tha

t Plaintiff Billy

Wesson once ackno

wledged to him that the Wessons had experienced moisture problems u

nderneath their

house in the past. According to Tibbs, Wesson indicated that he hadexperienced “a water problem” i

n the crawl space

underneath the house, although We

sson insisted that the

problem had been

corrected. Tib

bs also testified th

at, when he examined the flooring the day before trial, he performed a simple test with a moisture meter which revealed the presence of a high level of moisture in the house. Based upon this information,
as well as his own observation of the cond it ion of the flooring , Tibbs opined that Cu

pples or his employeesimproperly installed the flooring in an environment which contained excessive moisture. Tibbs also described

how, in his opinion, th

is excessive moistur

e had caused the

specific proble

ms of which the Wessons complained.

In granting Cupple

s’ motion for directed verdict, the circuit court appeared to focus
on Tibbs’ testimony whereby he acknowle dged that he found

nothing wrong with the installation of the floor. This testimony was elicited by the circuit court in the following exchange:

THE COURT : Le t m e ask you this question. Did you findanything wrong with the actual installation? THE WITNESS: With the actual installation? THE CO URT : Putting the wood in the floor. Did you see anything u

nusual about that? THE WITNESS: Ot her than the fact there wa sn’t enough expansion, and it actually buckled up against the walls. Typi cal ly, Your Honor, part of an installation -- THE COURT: Just a minute, now. I understood you to say the buckling up was due to the water. THE WITNESS: Due to the water. THE COURT: Well, does the -- did the installer do -- did you see anything he did other than the fact that it was a damp place? THE WITNESS: No. He inst alled wood flooring in an environment that it should not have been installed. TH E COURT: The installation itself. Let’s forget the environment. Was there anything wrong with the installation?

THE WITNESS: Not a thing. THE COURT: Not a thing. That’s what I wanted. Go ahead.
Contrary to the trial court’ s ruling, this testi mony did not entitle Cupples to adirected verdict on the issue of

whether he negligently installed the hardwood flooring in the Wessons’ house. This testimony merely showed that Tibbs did not observe anything wrong with the way the boards
were laid when the floo r was installed. I

n other testimony

, Tibbs c learly expla

in ed that site preparationwas part of the ins t a llation process and that proper site preparation, in turn, included ensuring that the environment in which the floor was being installed d id n ot contain excessive moisture. In Tibbs’ opinion, when Cupples installed the hardwood flooring in the Wessons’ home, the environmen t contained excess ive moisture. I

n light of this testi

mony, the cir

cuit court should have permitted the jury

to decide which party was to blame for the problems which developed in the Wessons’ f looring.

The trial court’s judgment is reversed, and this cause is remande d for a new trial. Costs of this appeal aretaxed one-half to the Wessons and one-half to Cupples, for which execution may i ssu e if nece ssa ry.____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)