IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 17, 2008 Session

DAN STERN HOMES, INC. v. DESIGNER FLOORS & HOMES, INC.,

ET AL.

 Appeal from the Circuit Court for Davidson County

No. 07C-1128 Thomas Brothers, Judge

No. M2008-00065-COA-R3-CV - Filed June 30, 2009

Appellants, a flooring companyhired to install hardwood flooring at a home being built byAppellee,

appeal the judgment of the trial court finding them liable for breach of contract and breach of

warranty and awarding damages to Appellee. Appellants were hired to install hardwood flooring at

a home being built by Appellee. After installation of the floors, problems developed; Appellants

tried to correct the problems on numerous occasions to no avail. Appellee hired another

subcontractor to refinish the hardwood flooring and to resolve the problems associated therewith. 

Appellee subsequently brought action against Appellant to recover amounts paid to subcontractor

and the trial court awarded Appellee full measure of damages sought. We modify and affirm the

judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed, as

Modified

RICHARD H. DINKINS,J., delivered the opinion of the court, in which FRANK G. CLEMENT,JR. and

ANDY D. BENNETT, JJ. joined.

Thomas J. Drake, Nashville, Tennessee, for the appellant, Designer Floors & Homes, Inc. andLouise

Frost d/b/a Designer Floors.

Joseph P. Rusnak, Nashville, Tennessee, for the appellee, Dan Stern Homes, Inc.

OPINION

I. BACKGROUND

Appellants, Designer Floors & Homes, Inc. and Louise Frost d/b/a Designer Floors

(“Designer Floors”), are a commercial flooring company, and Appellee, Dan Stern Homes, Inc.

(“Dan Stern”), is a general residential building contractor. In May 2004, Dan Stern contracted with

its clients for the construction of their new home. This contract provided for the installation of
approximately 4,120 square feet of hardwood flooring throughout the house. Pursuant to a written

agreement entitled “Invoice” and dated July 21, 2004, Dan Stern hired Designer Floors to install and

finish the hardwood flooring. The only agreement between the parties was this invoice.

Initially, Designer Floors was asked to provide common hickory flooring, but the purchaser

of the home decided on select hickory wood flooring instead. The select hickory flooring planks

were delivered in September 2004 and were installed soon thereafter, before the wood was fully

acclimated, according to the testimony at trial. Designer Floors completed the work contemplated

under the bid in November 2004; the buyers of the home took possession shortly thereafter. Dan

Stern timely paid Designer Floors for all of the work completed by Designer Floors; final payment

was made in February 2005. 

The purchasers of the home were initially happywith the result; the floors were beautiful and

the sand and finish job on the floor was well done. In the first couple of months after the buyers took

possession of the home, however, the floors in some rooms began to squeak, and there were several

places where the floors buckled together, buckled off the subfloor, or separated, causing cracks

between the boards in the floor. Designer Homes was contacted on several occasions to come to the

home and fix specific areas; however, the problems recurred in other areas. After two or three

months the small scale fixes were no longer able to address the problem. Designer Floors returned

to the home in April 2005 to repair additional problems; Designer Floors next returned to the home

in October 2005 to address complaints which had arisen since the April visit. In the course of the

October visit, a representative of Designer Floors met with representatives of Dan Stern and agreed

upon a plan to basically refinish the entire floor while the homeowners were away on a two-week

vacation.

During the first week of the homeowners’ vacation, Designer Floors refinished the hardwood

flooring; however, this refinish was unsatisfactory. Designer Floors agreed to refinish the floors a

second time during the second week of the homeowners’ vacation, but Designer Floors failed to

appear at the property on the appointed date and time. Dan Stern contacted Designer Floors about

the failure to appear and informed Designer Floors that it found another flooring subcontractor to

refinish the floor. This replacement subcontractor was able to refinish the floor in a satisfactory

manner and to otherwise correct the problems with the hardwood flooring.

After Designer Floors declined to reimburse Dan Stern for the costs associated with

refinishing the floor, Dan Stern initiated this action in the Davidson County General Sessions Court,

alleging breach of contract, negligent installation and repair of the floor, and failure to honor the

warranty; Dan Stern sought damages in the amount of $8,103.21, plus attorneys fees. The court 

entered judgment in favor of Dan Stern for $5,594.04, which Designer Floors timely appealed to the

Davidson County Circuit Court. At the conclusion of a bench trial, the court found in favor of Dan

Stern on its breach of contract and breach of warranty claims and awarded judgment in the amount

of $8,103.21. 

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Designer Floors appeals, presenting the following issues:

1. Whether [Dan Stern] carried its burden of proof that [Designer Floors] breached

an implied warranty of fitness for a particular purpose pursuant to [Tenn. Code

Ann. §] 47-2-315 and breached an implied warranty of merchantability pursuant

to [Tenn. Code Ann. §] 47-2-2314.

2. Whether [Dan Stern] proved damages.

In addition, Dan Stern articulates the following issue:

Whether the trial court properly granted judgment in favor of Dan Stern Homes for

its cost to repair the defective flooring as a result of Designer Floors’ breach of

contract.

II. STANDARD OF REVIEW

This case was tried without a jury. Thus, the trial court’s findings of fact are reviewed de

novo on the record with a presumption of correctness unless the preponderance of the evidence is

otherwise. Tenn. R. App. P. 13(d), Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.

1993). The trial court’s conclusions of law are reviewed de novo without any presumption of

correctness. Tenn. R. App. P. 13(d), Biggs v. Reinsman Equestrian Prods., Inc., 169 S.W.3d 218,

221 (Tenn. Ct. App. 2004). 

III. ANALYSIS

A. Implied Warranty of Fitness for a Particular Purpose

The implied warrantyof fitness for a particular purpose is codified at Tenn. Code Ann. § 47-2-

315, in pertinent part, as follows:

Where the seller at the time of contracting has reason to know any particular purpose

for which the goods are required and that the buyer is relying on the seller’s skill or

judgment to select or furnish suitable goods, there is unless excluded or modified

under the next section an implied warranty that the goods shall be fit for such purpose.

Id. 

In order to create a warranty of fitness for a particular purpose, the seller must have reason to know

the purpose and that the buyer is relying on the seller’s skill or judgment to furnish the goods.

Alumax Aluminum Corp. v. Armstrong Ceiling Systems, Inc., 744 S.W.2d 907, 910 (Tenn. Ct. App.

1987). 

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In its ruling the trial court found the following relative to the implied warranty of fitness

claim:

I think that the plaintiff has succeeded in proving by a preponderance of the evidence

there is a . . . breach of implied warranty of fitness for a particular purpose. It’s clear

that this flooring was intended to be utilized in an expensive residential project. The

finish would be unacceptable to anyone, that the real issue boils down to the repeated

attempts to try to correct it and why this crew didn’t show up there on the 28 . 

th

This finding of the intended purpose of the flooring and the unacceptability of the finish are

supported by the preponderance of the evidence. The record is clear that Designer Floors knew, at

the time it submitted its bid, the purpose for which it sold Dan Stern the select hickory wood –

installation of hardwood floors in the home that was being built. Dan Stern relied upon Designer

Floors’ experience and skill to properly install the wood floors. Dan Stern also relied upon Designer

Floors’skill and expertise to correct the problems later associated with the installation of the flooring.

We are not persuaded, however, that the warranty of fitness was breached in light of the proof

that the problems associated with the floor were due in substantial part to the fact that the floor did

not properly acclimate to the home prior to being installed. James Ralph, installation manager for

Designer Floors with fifteen years’ experience in the flooring business, testified that the problems

with the flooring were due to the fact that the flooring was installed before the temperature control

system in the home was in operation; therefore, the wood was not exposed to the actual environment

to which it would be exposed and, consequently, could not acclimate - or equalize - to the

environment. As a result, the floor cupped and cracks formed between the boards, in addition to

various other issues, which required refinishing the floor. Mr. Ralph further testified that the normal

period of acclimation is 72 hours and that Dan Stern determined when the installation took place. Mr.

Ralph’s testimony was uncontroverted and there was no countervailing proof that the condition was

caused by the wood itself; that the problems would have occurred had the wood been properly

acclimated; or, indeed, that the flooring was not fit for the intended purpose at the time it was

installed. 

Consequently, the court’s holding that Designer Homes breached the warranty of fitness for

a particular purpose is not supported by the preponderance of the evidence and is erroneous. 

B. Implied Warranty of Merchantability

The implied warranty of merchantability is codified at Tenn. Code Ann. §47-2-314, which

provides, in pertinent part, as follows:

(1) Unless excluded or modified (§ 47-2-316), a warranty that the goods shall be

merchantable is implied in a contract for their sale if the seller is a merchant with

respect to goods of that kind. . . . 

(2) Goods to be merchantable must be at least such as:

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(a) pass without objection in the trade under the contract description; and

(b) in the case of fungible goods, are of fair average quality within the

description; and

(c) are fit for the ordinary purpose for which such goods are used; and

(d) run, within the variations permitted by the agreement, of even kind, quality

and quantity within each unit and among all units involved; and

(e) are adequately contained, packaged, and labeled as the agreement may

require; and

(f) conform to the promises or affirmations of fact made on the container or

label, if any.

(3) Unless excluded or modified (§ 47-2-316) other implied warranties may arise

from course of dealing or usage of trade.

Id. In order to recover under this warranty, the purchaser must show that the goods did not measure

up to the requirements of the warranty at the time they were delivered. Hollingsworth v. Queen’s

Carpet, Inc., 827 S.W.2d 306 (Tenn. Ct. App. 1991). 

The trial court did not specifically hold that Designer Floors violated the implied warranty of

merchantability. However, we note that there is no proof in the record that the flooring was not

merchantable at the time it was delivered. As with the warranty of fitness for a particular purpose, 1

the proof in this record is that the problems with the floor related to the timing of its installation. 

C. Breach of Contract

The essential elements of a breach of contract claim are: 1) the existence of a contract; 2)

nonperformance amounting to a breach of that contract; and 3) damages caused by the breach of that

contract. See Lifecare Ctrs. of Am., Inc. v. Charles Town Assocs. Ltd. P’ship, LPIMC, Inc., 79 F.3d

496, 514 (6 Cir. 1996). The parties acknowledge that the document entitled “Invoice” dated July th

21, 2004, and signed by the owner of Designer Floors, Louise Frost, constitutes the contract at issue

in this case. Under the Agreement, Designer Floors was to provide and install certain flooring at the

home being built by Dan Stern, for which it would be paid. Designer Floors confirmed its

understanding and interpretation of the Agreement by beginning, and subsequently completing, the

work contemplated thereunder and by accepting payments from Dan Stern totaling approximately

$26,461.20. According to the testimony of Ms. Frost, the policy of Designer Homes is “try to fix it

and take care of it to the enth degree. As long as they’ll let me in the house, I’m willing to do

whatever to make a customer happy.” 

Designer Floors contends that it did not breach the contract but, rather, was not allowed to

complete the refinishing of the floor. In accordance with its policy, Designer Floors made several

attempts to remedy these problems, including the refinish of the floor. When Designer Floors failed

to arrive on the appointed day and time to refinish the floor for a second time, Dan Stern Homes hired

 There was no proof of any representations of quality made by Designer Floors; rather the proof was that the

1

purchaser of the home selected the flooring in consultation with Dan Stern.

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a replacement subcontractor to remedy the problems. While there is conflicting testimony regarding

the circumstances leading to Dan Stern’s engagement of another subcontractor to refinish the floor,

the evidence does not preponderate against the trial court’s finding that Designer Floors failed to

complete the refinishing, thereby breaching the contract. Of note is the fact that the refinishing had 2

to be completed expeditiously, as the owners were scheduled to return from their two week trip

shortly and sufficient time had to be allotted to complete the refinishing. 

D. Damages

Because Designer Floors breached the contract, Dan Stern Homes is entitled to recover

damages. The purpose of assessing damages in a breach of contract action is to place the plaintiff in

the position the plaintiff would have been in had the contract been properly performed, as nearly as

possible. GSB Contractors, Inc. v. Hess, 179 S.W.3d. 535, 541 (Tenn. Ct. App. 2005). 

There is proof in the record that, as a direct and proximate result of Designer Floors’ breach

of contract, Dan Stern Homes paid $5,337.29 for labor and materials to have the floors refinished and

repaired; $800.00 for touch-up painting; $450.00 for house cleaning; and $1,515.92 in labor to

supervise the refinishing of the flooring, touch-up painting, and house cleaning. The out-of-pocket

expenses incurred by Dan Stern is a proper measure of damages inasmuch as those expenses would

not have been incurred had Designer Floors completed its obligations. Accordingly, the trial court

did not err in awarding Dan Stern Homes judgment in the amount of $8,103.21.

IV. CONCLUSION

For the foregoing reasons, the trial court’s decision is AFFIRMED, as modified. Costs of this

cause are taxed to Appellants, Designer Floors & Homes, Inc. and Louise Frost d/b/a Designer Floors,

for which execution may issue if necessary.

____________________________________

RICHARD H. DINKINS

When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral

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testimony are involved, considerable deference must be accorded to the trial court’s factual findings. See Seals v.

England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999).

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