# FILED

June 22, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

DOUGLAS J. RADAN

T and ) BARBARA RADANT, ) ) Plaintiffs/Appelle

es, ) Shelby Circuit No. 80794-5 T.D.

) v. ) ) ROBERT EARWOOD, Individually, ) Appeal No. 02A01-9802-CV-00029 and as EARWOOD CONTRAC TORS, )

) Defendant/Appe

llant. )

APPEAL FROM THE CIRCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE KAY S. ROBIL IO, JUDGE

For the Plaintiffs/Appellees : For the Defendant/Appellant : T. Tar ry Beasl ey, II Harol d W. Fo nvil le, II Memphis, Tennessee Memphis, Tennessee

AFFIRMED AS M

ODIFIED AND REMA

NDED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HI GHERS, J.OPINION

This is a construction contract case. The plaintiff homeowners assert a breach of contract by the defendant contractor regarding construction of the plaintiffs’ home. The trial court entered a $30,000 judgment in favor of the plaintiffs. With some modification, we affirm the trial court’s decision and remand for a determination of damages covered by the warranty. On December 23, 1994, Plaintiffs/Ap pelle es Barbara and Douglas Radant (“Radants”) contracted

with Defendant/Appellant Robert Earwood d/b/a Earwood Contractors (“Earwood”) to construct a new home in the Halle Plantation Subdivision in Collierville, Tennessee. Earwood constructed

the house, and the Radants closed on the purchase on August 18 , 1995. The Radants paid approximately $290,000 for the home. At the closing and on several subsequent occasions, the Radants furnished Earwo od with a list

of items which were incomplete or inadequate. In addition, Earwood furnished the Radants with a One Year New Home Limited Warranty (“Warranty”). The construction cont

ract provided as

follows: ARTICLE X BUILDER’S WARRANTY CONTRACTOR SHALL SUPPLY A ONE (1) Y E AR NEW HOME LIMITED WARRANTY AS ISSUED BY THE NATIONAL ASSOCIATION OF HO MEBUIL DERS AND THE HOME BUILDERS ASSOCIATION OF MEMPHIS

. HOWEVER, ANY ADDITIONAL WARRANTY DESIRED BY THE OWN ERS SHALL BE PAID FOR BY THE OWNERS. The Warranty in

cluded certain l

imitations: PURCHASER AGREES THAT THIS REGISTERED BUILDER WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, STATUTORY OR OTH ER WISE, EXPRESSED OR IMPLIED, ALL OTHER REPRESENTATIONS MADE B Y BUILDER AND ALL OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO SAID PROPERTY. IMPLIED WARRAN TIES O F MERCHANTABILI TY AND FITNESS ARE SPECIFICALLY EXCLUDED , AND THE BUILDER’S OBLIGATION S HALL NOT EXCEED IT S OBLIGATION SET FORTH IN SAID REGISTERED BUILDER WARRANTY. The Warranty lists pos sible deficienc ies or problems

in construction. For each possible deficiency, the Warrant

y lists a performance standard explaining ac ceptable construction standards and describes whether it is the re spo nsibility of the builder or the homeowner to remedy the deficiency. For example, for the deficiency of pitting, scaling or spalling of concrete, it is the builder’s responsibility to repair concrete surfaces should they disintegrate so that the aggregate is exposed. On October 1, 199 5, the Rada nts furnished Earwood with a list of items in the home that needed to be remedied. The list included drainage problems in the backyard and the need for a

drain in the backyard. Ea

rwood acknowle

dged that water was ponding in the backyard, and that the2

problemwas covered by the Warranty. In a letter to the Radants dated October 17, 1995, Earwood said: The condition of the ya rd is as much an emb

arrassment to me a

s it is to you. As you k now, I have hired a local Civil Engineering firm to come up with a draina ge pla n to eli min ate any further problems. I have done this at my own expense and have gone on record as say

ing that I fully inte

nd to make this

situation RIGHT! While I will apologize for this taking longer to accompli sh than either of us would like, I stand behind my decision to handle it in this fashion as opposed to just “dumping dirt” on it as you originally suggested. In order to remedy the drainage problem, Earwood installed a Fre nch drain sy stem that

e mptied into underground tanks. However, even after installation of the French dra in, the yar d continued to have

substantial draina

ge problems. In May, 1996, the Radants furnished Earwood with another list of i tems that needed to be remedied. The list included: 22. BACK

YARD DOES NOT DRAIN PROPERLY; WATER STAYS IN BACK YARD DAYS AND SOME TIMES WEEKS AFTER A RAIN SHOWER. BACK YARD HAS BEEN UNUSABLE SINCE MOVE IN ON A UGUST 18. 1995 [sic]. In a letter to the Radants dated June 15, 1996, Earwood stated: I would like to sum up t

he situation as I se

e it. a) the water that is still ponding in the ba ckyard is coming from all four o f your surrounding neighbors on a daily basis as they wa te r their lawns. b) the daily rains that yo u mentioned in your l

etter were exc

ess iv e and, under normal circumstances, would be ha ndled by the su bsurface drainage system that I installed. c) the surface water drainage system of this portion of the subdivision was poorly designed in

that there should h

ave been a drai

n inlet in the back corner of your lo

t at the intersect

i on of th ree lots. This woul d have allowed us to grade t he backyard from the house to that drain. What we were forced to do was to grade fro

m a point at the back of the yard all the wa

y to the front. A dist

ance of some 209 f

eet. d) the water coming from

your neighbors is made worse from the fact that they have piled soil and mulch up to 6" or 8" along the fence. e) the grade can be raised in those areas where wat er is po nding. I explained to you after we left there on May 26th that once all of the newlyfilled area s hav e settled, that we would be back to make the needed adjustmen

ts. Doug, to put this in simple terms, I have done all that I feel is under m y responsibility

to make corrections with the work on your yard. This, of cou

rse, is in exception to the work mentioned above in item (e). . . .

**** As for your

wish for me to remove the tanks and drains that I i nstalled, I will have to refuse

that request due primarily to the fact that you were made 100% aware of the process and procedure that I wastaking to correct the drainage problem. It was designed to handle

the water generated by normal rainfall and in our discussions, I3

explained that wa

ter generated b

y rainfall may sta

nd in certain

areas onan average of 24 hours and no l onger than 48 hour s. Based on the Home

builder’s Warr

anty issued to you at closing, this is my limit of responsibility. In closing, I would

like to say that I

have been committ

ed from Day One to fulfilling my responsi

bi lity as your builder

, but it is now out of my h ands. In my opinion, the burden of providing proper drainage at the property lines and beyond rests with the developer. . . . The Radants submitted th e matter to indepe

ndent inspectio

n by the Home Builders Association of Memphis - Registered Builder Committee. The co mmittee i ssued an inspection report on September 10, 1996, which included the following: The Registered Builder

Committee of the Hom

e Builders Associa

tion of Memphis determinedthat your

builder should cor

rect the followin

g items in your home

which were determined not to be in compliance with industry standards as outlined [in] the New Home Limited Warranty. . . . Problem : Proper site drainage never established Stand ard : Th e necessary grades and swales shall have been established by the Builder to insure proper

drainage away from the Home. Standing or ponding water shall not remain for extended pe

riods i n the immedi ate area after a rain (generally no more than 24 hours), excep

t that in swales which dra

in other areas, o

r in arears [sic] where sump pumps discharge, a longer period can be anticipat

ed (generally

no more than 48 hours). The possibility of standing water after an unusually

heavy rainfall s

hould be anticipated. . . .

  Problem : Crack between g arage door & wal

l Standard : Exterior doors wi ll warp to some degree due to temperature differential on inside and outside surfaces. Ho wever, they s hall not warp to the extent that they become inoperable or cease to be we at her resistant or exceed National Woodwork Manufacturers Association Standards. . . .

** ** Problem : Playroom windows no t sealing properl

y Standa rd : Builder will adjust o r correct poorl

y fitted doors, wind

ows and poorly fitted weatherstripping.

  Problem : Tile cracked in bathroom Standard : Ceramic tile shall not cr a ck or become loose and builder will replace cracked tiles and resecure loose tiles.

** ** Problem : Cracks above garage door Standard : Cr acks greater than 3/8 inch in width are considered excessive. Builder will repair cracks in excess by pointing or patching.4

**** Problem : Garage door does not meet top of beam above garage door, “bowed down” Standard : This is not specifically addressed in the warranty, however the inspectors suggest that this be corrected to keep from bowing or further sagging. On August 19, 1996, prior to issuance of the inspection report, the Radants filed suit in the Shelby County Circuit Court against Earwood, a lleging certain defects in the construction of the home. The Radants attached as an exhibit to the complaint a p unch lis t dated May 20, 1996 purportedly

listing uncorrected problems with the home. Th e following defects were alleged: cracked tile; misaligned windows; cracked w alls, ceilings, exterior bricks, garage, and driveway; peeling ceilings; lo ose electrical outlets and lighting fixtures; loose floor boards; water leakage inside the house; gaps between kitchen cabinets; separation of wood trim from wal ls; improper install ation of dishwasher; failure to install soff itt grills and certa

in insulation; scra

tches on windows; improperly

functioning sink drain; stain spots on front door; improper woodgrate above front door; deadgrass in front yard; and water drainage problems in back yard. The Radants sought $100,000 in damages for breach of the construction contract. Earwood denied that ther e were significant defects in the home. He asserted that he had corrected any problems for which he was responsible. He disputed whether many of the defec ts reported by the Radants were really “defec ts,” and disputed h

is obligation to fix many of the alleged defects. Earwood denied that an y of the alleged problems would cause future damage or require fu ture repairs. He raised several defenses, including failure to state a claim, that many of t h e problems were not covered in the Warranty, that the Radants failed to comply with the Warranty and failed to give notice of the defects within a reasonable time, that neighboring land owners and the developer of the subdivision were negligent, and waiver. During the two day b ench trial, the trial court heard testimony and received evidence regarding a number of issues, including the diminution in value of the house and the e

stimated cost of repair. The Rada

nts su bmitted the expert testimony of Earl Randall Bouldin, Jr., a certified general real estate

appraiser. Bouldin testified that the value of the property as of July 1, 1997 was $270,000, but that the property would have b een worth $ 305,000 if it were properly repaired. Douglas Radant testifiedthat the property was worth $245,000

in its condition at the

time of trial, and that it would

have been worth $305,000 if repaired. He testified that he and his wife had spent5

approxi mately $30 00 on contractor s, landscapers,

and other exper

ts to analyze how t

hey could correct the problems. Barbara Radant placed a value of $250,000 on the defective home and a value of $300,000 value on the repaired home. The Radants also of

fe red the expert testimony of Robert Martin Pollan, a local general contractor. Pollan testified that the cost of repair for all necessary repairs would be $37,240. This estimate was comprised of the followi ng co mponents: $16,496 to excavate and r

emove the old drainage system, re-grade and sod the yard; $6,986 to remove and to replace the brick veneer on the garage wall

and on a section on the back side of the house; $2,872 to replace the spalled concrete; $1,825 to repair damaged drywall in the master bath, game room and upstairs bedroom; $8,734 for mis cellaneous carpentry work including adjustments to windows, replacement of the back door , stretching and relaying of the carpet, replacement of defective windows, splicing and bracing a rafter in the att ic and c utting an opening in the gable for ventilation; and $327 for removal of trash and debris. Bryan H. Stephens, Jr., a civil engineer, also testified for t he Radants. He found several problems with the property, including improper drainage around the property, a sag in the beam over the garage opening, an improper roof slope, and poor framing and ventilation in the attic. He stated that the poor water drainage, if left uncorrected, would eventually lead to foundation settlement and moisture inside the house, causing mildew and rot in the studs. The Radants also offered the expert testimony of Michael LeeHatcher, a Certified Landscape Professional. Hatcher testified that the drainage tanks installed in the back yard in

connection with the French drainage

system would need t

o be removed sin

ce the water co uld not percolate out of them as fas t a s they were filled, and thus the water had no place to go. He testified that the yard needed a combination of surface and subsurface drainage. Earwood submitted the expert testimony of John Wesley Ashworth, III, a civil engineer, who found “a couple of sunken areas about eight feet wide or so that did not have grass

growing in them.” He considered

the French drainage system to be adequate to drain the back yard. He recommended that the low spots around the tanks be filled in and resodded, and that a sump pump

possibly be installed to drain water to the curb. He saw

no reason to remov

e the tanks. He concluded that the drainage problem was the result of the subdivision developer failing to i nstall a drain when the subdivision was designed. He found no damage to the foundation. To correct the cracked pilaster6

beside the back door, he recommended caulking since there was no structural defect in the pilaster. Although he noted the sagging garage door beam, he did not consider it structurally unsound. Earwood testified that the French drain system was properly installed. He also thought the installation of a sump pump would probably be necessary to drain excess water from the tanks. He indicated that he had not fixed th e brick pilaster by the back door or the cracks in the brick above the garage becaus

e th e W arranty provides that cracks less than three-eighths of an inch can be caulked. He testified that the sod in the front yard was alive when he put it in, and that replacement of sod is not included in the Warranty. He conceded tha t the items listed in

the inspection report by the HomeBuilders Association of Memphis had not been corrected. Earwood stipulated that several problems were covered by the Warranty, namely, the cracked and crumbling driveway, the missing soffit vent, and cracks in the ceiling of the playroom. Earwoo d ag reed he was responsible for correcting thes

e problems. On September 12, 1997, the trial co urt entered a judgment in favor of the Radants for $30,000. The trial court found that the yard “was not completed properly to drain the back and side yards” and listed numerou s defects in construction. It noted that the Radants submitted testimony

on the devaluation of

the home

and the cost of repair and that no testimony was submitted by Earwood to counter the testimony of the Radants and their expert witnesses. The trial court’s “Order of Judgment” prov

ided in relevant p

art: The devaluation and lo

ss to the Plaintiffs in the value of their home was established by the testimony of the expert appraiser, the evaluation by the homeowners an d adjusted according to cost of repair as testified to by the contract

or and civil

engineer to $30,000 for which judgment will be granted. In addition to the improperly completed back ya rd, the trial court based its award on several construction defects that were not in accordance with the building standards in the community: “a roof problem, sagging garage header, spaulding [sic], and de teriorate d concrete, misaligned door and windows, and sever al leaks abo ut the home, including numerous windows and the chimney, a misfitting window grid, a ceiling pr oblem where the air conditioner drain had been installed improperly

with a br oken drain pipe, closed in eaves without proper ventilation and a soffet [sic] vent that is missing.” From this order, Earwood now appeals. Our review of the findin

gs of fact by the tr

ial court is de novo upon the record of the trial court, accompanied by a presumption of correctness of the factual findings unless the preponderance7

of the evidence is

otherwise. Tenn. R. Civ. P. 13(d). Questions of law are de novo with no presumption of correctness. See Carvell v. Botto ms , 900 S.W.2d 23, 26 (Tenn. 1995). On appeal, Earwood asserts that the trial court erred in not applying the proper measure of damages and in

disregarding the limitations of liability contained in the Warranty. He argues that the measure of damages would be either the cost of repairs or the depreciat i on in the value of the house caused by the defects and that the trial court’s award of damages was neither. He maintains that the Radants failed to prove the depreciation in the value of the house

because they were required to prove the difference in value immediately before and after “the injury”; the Rad an ts instead submitted proof pertaining to the value of the

house at the time

of trial. Earwood contends that the trial court should have utilize

d the cost of repa

ir as the measure

of damages, minus i

tems which are specifically

excluded in the Warranty and r ecognizing the Warranty’s disclaimer of implied warranties of me

rchantability an

d fitness and other

items. The Radants maintain th at the trial court utilized the correct measure of damages but committed error in its calc ulation of damage

s. The Radants

argue that the limitations in the Warranty are not controllin

g because Earw

ood gave the Rada

nts further assura

nces, verbally and in writing. They request that the trial court’s award be modified to at least $37,240 up to amaximum of $60,000. It is unclear from the trial court’s order how the trial court arrived at the $30,000 figure. The trial court referred

to the uncontrove

rted testimony on the

devaluation of the

home, then refer

red to this amount as “adjusted according to cost of repair.” No reference was made to the Warranty

or whether certain items were excluded pursuant to the Warranty. In assessing damages in a breach of contract suit, the goal is to place the pla

intiff, as nearly

as possible, in the same position he would have been had the contract been performed. See Wilhite

v. Brownsville Concrete Co. , 798 S.W.2d 772, 775 (Tenn. Ap p. 1990); Action Ads, Inc. v. William B. Tanner Co. , 592 S.W.2d 572, 575 (Tenn. App. 1979). Both parties rel y upon Edenfi eld v. Woodlawn Ma n or, Inc. , 462 S.W.2d 237 (Tenn. App. 1970), as authority for the measure of damages to be assessed in construction contract cases. Edenfield states: “As a general rule, the measure of damages is the cost of co rrecting the defects or completing the omissions, rather than the d ifference in

value between w

hat ought to have been done in the performance of the contract and what has been done, where the correction or completion would not involve unrea sonab le destruction of the work done by the contractor and the cost thereof would not

be grossly dispropo

rtionate to8

the results to be obtained. On the ot her hand, the cou

rts generally adhere to the view that if a bu ild er or contractor has not fully performed the terms of the construction agreement,

but to repair the defects

or omissions would require a substantial tearing do wn and rebu ilding of the struct ure, the measure

of damages is the d

ifference in value between the wor

k if it had been performed in accordance with the contract and that which was actually done, or (as it is sometimes said) the difference between the value of the defective struct ure and t hat of the structure if properly completed. Despite this latter rule, however, there is some authority to

the effect that damages for a contractor’s breach of contra c t to construct a dwelling, where it is not constructed

in accordance

with the plans and s

pecifications, are the amount required to reconstruct it to m

ake it conform to

such plans and specifications, rather than the difference

in loan or market val ue on the finished dwelling, since unlike a commercial structure, a

dwelling has an es

thetic value and m

ust be constructed as the owner wants it, even though the finished dwelling may be just as good.” Id. at 241 (quoting 13 Am . Jur. 2d § 79); see a lso Birdwell v. McKinney , No. 01A01-9701-CV00023, 1997 WL 773730, at * 10 (Tenn. App. De c. 17, 1997); Oakwood Furniture Mfg. , Inc. v. Ruh & Pressley Constr. Co. , No. 03A01-9307-CH-00233, 1993 WL 477020, at **4 (Tenn. App. Nov. 15, 1993); Nutzell v. Godwin , 19 89 W L 76306, at **1 (Tenn. App. July 13, 1989). In Fuller v. Orkin Exterminating Co. , 545 S.W.2d 103, 108 (Tenn. App. 1975), this Court stated: [T]he measure of damages for injury to real estate is the di ffere nce between the reasonable

market value of

the premises immed

iately prior to and immediately after injury but if the reasonable cost of repairing the injury is less than the depreciation in value, the cost of repair is the lawful measure of damages. Of course, the trier of fact can also take into consideration the reasonable cost of restoring the pro

perty to its former condition i n arriving at the difference in value immediately before and after the injury to the premises. Id. at 108 (citation omitted). Redbud Cooperative Corp. v. Clayton , 700 S.W.2d 551 (Tenn. App. 1985), involved a fact situation analogous to

the case at bar, in that it involved flooding and attendant drainage problems in a residential development. In Redbud , the Court held: Based upon the proof in

this record, we conclude that the only reasonable basis upon which the trial court could have awarded damages was the cost of repairing Redbud’s inadequate drainage system.

  We thus, conclude that the trial court was justified in awarding damages based upon the estimated cost of repairing the development’s drainage system. This evidence can be taken into con sideration in attempting to determine the difference in the property’s va

lue . . . and in this ca

se it w as the only reliable evidence before the trial court. Id. at 561 (footnotes and citations omitted). As noted above, from the trial court’s order, it is unclear whether the trial court utilized the diminution in value or the cos t of repair as the

measure of dama

ges. Generally , the mea sure of9

damages will be the cost of repair un less the repairs a

re not feasible o

r the cost is disproportionate to the diminution in value. Nutzell , 1989 WL 76306, at ** 1 (citing Estate of Jessee v . White , 633 S.W.2d 767, 769 (Tenn. Ap p. 1982); Redbud , 700 S.W.2d at 560. In this case, testimony submitted by the Radants was uncontroverted that the diminution in value was between $35,000 and $60,000. The undisputed testimony submitted by the plaintiff i ndica ted that the cost of repair for all it

ems claimed by the Radants was $37,240. The defendant presented no proof in this case that the cost of repair was unreasonable as compared to the diminution in value. See Nutzell , 1989 WL 76306, at **1; see also Oakwood , 1993 WL 477020, at **5. Under thes e circumstance

s, the appropriat

e measure of damages is the cost of repair. We next consider the effect of the Warranty. The

Radants do not disput

e that the Warra

nty

was part of the agreement between the parties; rather, they argue that the Warranty was not effective until the construction had been completed in a workmanlike manner or met com munity standards. They con te nd that many of the items Earwood argues are not covered by the Warranty were not constructed

properly. Since the defects were present before t he Warranty became effective, the Radants argue that the Warranty cannot serve as a bar to their recovery. Ear wood responds that the language of the Warranty plainly states that “[t]he commencement date of this warr

anty is the date of property transf

er or the date of

first occ upancy, whichever occurs first.” The language of the W arranty plainly states the effective date of the Warranty. We do not find the W arrant y unenforceable

on this basis. The Radants also argue that Earwood gave assurance

s, verbally

and in writing, bey

ond those provided in the Warranty, and that therefore Earwood

should not be permit

ted to assert as a

defense the limitations contained in the Warranty. E arwo od does not deny mak ing several assur

ances; however, he contends that all the assurances concerned the backyard drainage problem covered by the Warranty, and therefore did not extend any coverage provided by the War ranty. In Dixon v. Mountain City Construction Co. , 632 S.W.2d 538 (Tenn. 1982), our Supreme Court adopted the doctrine of theimplied warranty of good workmanship and materials as applied to newly built dwelli

ngs. The Supreme Co

urt noted that: This warranty is implie

d only when the wri

tten contract is s

ilent . Builder-vendors and purchasers are free to contract in writing for a warranty upon differe nt terms and conditions or to expressly disclaim any warranty.10

Id. at 542. Subsequently, this Court stated in Dewberry v. Maddox , 755 S.W.2d 50, 55 (Tenn. App. 1988): [W]e think that in order to have a v

alid disclaimer of the

implied warranty , it must be in clear and

unambiguous langua

ge. The buyer must

be given “adequate notice of the implied warranty protections that he is waiving by signing the contract.” Id. at 55 (quoting Tyus v. Resta , 476 A.2d 427, 432 (1 984)); see also Axline v. Kutner , 863 S.W.2d 421, 424 (Tenn. App. 1993). Th e Warranty in this case specifically excludes the implied warranties of merchantability and fitness. The Warranty a

lso limits the implied w

arranties of wor

kmanship and mater

ials to certain enumerated deficiencies arising within the first year after completion of the home. This Court has held that l anguage in

a warranty similar

to that contained i

n the Warranty in this case is sufficient to disclaim all other warranties, including the implied war ran ty of good workmanship

and materials as s

et forth in Dixon

. See Henry v. Nova, Inc. , No. 03A01-9804-CH00121, 1998 Tenn. App. LEXIS 5 93 (Aug. 17, 1998) ( interpreting the l

anguage: “This

warranty is in lieu of any and all other warranties, whether express or implied warranties of habitabitability or merchantabili

ty” ); Bunch v. Cooper , No. 03A01-9705-CV-00154, 1997 Tenn. App. LEXIS 652 (Sept. 30, 1997) (interpreting the language: “This warranty is in lie u of all other war

ranties, expres s

or implied, including but not limited to, implied warranties of merchantability, habitability, and fitness for a particular purpose”). In this case, the language in the Warranty clea

rly limits it to

the express warranties and

disclaims implied warranties. Under Tennessee case law, this is enforceable. At trial, the Radants provided several statements by Earwood that purportedly modified the express Warranty. The Radants point to a letter by Earwood

dated August 20, 19

95 stating that it

was his “sincere goal to give [the Radants] a ‘ZERO DEFECTS’ home.” The Radants also provided

a letter from Earwood dated September 23, 1995. In this letter Earwood promised that the back yard drainage problem would be fixed and discussed a repa

ir to the vinyl flooring in the sunroom bath. In a third letter dated

Oct. 17, 1995, Earwood listed seven items that needed to be completed by him: insta l lation of grids above the front door, installation of a gas starter in a fireplace, installation of insulation in an upstairs closet, pouring an additional area of concrete for the driveway, touching up the paint around the skylight, and remedying the drainage problem in the back yard. On appeal, the Ra

dants argued tha

t the estimate

by their expert, Robert Pol

lan, covered al

l the repairs still needed on the property. A comparison of th e deficiencies

listed in Pollan’s es

timate11

withthe items listed in Earwood’s letters shows that the Radants seek recovery for only three items that were also listed in Earw ood’ s letters: the grid above the front door, the pouring of additional concrete on the driveway, a

nd the backyard d

rainage problem

. Earwood conceded responsibility for the drainage problem in the back yard, as it was covered by the Warranty. On appeal, Earwood does not dispute his obligatio

ns to install the proper

grid above the front door or the pouring of additional concrete. Earwood disputes only the Rad ants’ right to recover for the roof problems, the sagging garage header, and the problems caused by the air conditioner pipe that were awarded

in the damages award. He argues that th

ese items were within

the performanc

e standards of the

Warranty and tha

t,

as a result, the Rada

nts cannot recov

er for these item

s. There is no dispu

te over the items li

sted in h is letters. Indeed, these items are not inconsistent with the Warranty. Therefore, the assurances containedin Earwood’s letters, concerning items whose coverage under t he Warranty is not dispu ted, cannot be construed to negate the limitations of the Warranty. Earwood may assert as a defense the limitations contained in the Warranty. From the record

in this cause, this Court cannot determine with certainty the amount of the damages for the items that a re covered by th

e Warranty and

the amount attribut

able to items that are excluded. The c

ause must be rema

nded for the tria

l court to determin

e these amounts. Finally, the Radants assert that Earwood did not provide certain items under the terms of the contract, including a security system and a bath window. The Radants also a ssert that Earwoo

d is responsible

for a $600 overage for carpet which was installed. They assert that they should not have been charged extra

for the brick quoi

ns on the house

since their house plans were based on a house that had brick quoins. In response, Earwood maintains that the $500 line item in the construction contract for a security system covered only pre-wiring, to which the Radants agreed, and which was don e. Earwoo d contends that the Radants have failed to prove any damages as a result of the allegedly omitted window, and that they have failed to establish that they did not receive the carpet for which they contracted. He asserts that the owners of the

house on which the

Radants house

plans

were based had paid extra to receive quoins, and thus the price of the quoins was not included in the base p r ice of the house. It appears that these items were not included in the trial court’s award of damages. After reviewing the record, the evidence does not prepond er ate against the trial court’s decision not to award damages on these items. This decision is affirmed.12

In sum, the appropria

te measure of dama

ges in this case

is the cost of repair. We do not find that the statements in Ea

rwood’s letters t

o the Radants

prevent Earwoo

d from asserting a

s a defense the limitations of the Wa

rranty. The cas

e is remanded to

the trial court for a determination of which items included in

the damages award are recoverable under the Warra nty. A preponderance

of the evidence supports the trial court’s exclusion from the damages award of sev eral errors and omissions. The decision of the trial court is affirmed as modified and remanded

for further proceedings consistent with this Opinion. Costs are taxed to A ppellant, for whic h execution may iss

ue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.