Dudley Eastbourne v. Roger Brumitte

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 9, 2002 Session

DUDLEY C. EASTBOURNE, ET AL. v. ROGER BRUMITTE D/B/A ROGER
BRUMITTE CONSTRUCTION

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 appeal from the Chancery Court for Loudon County the Appellant, Roger Brumitte d/b/a
Roger Brumitte Construction, argues that the Trial Court erred in awarding the Appellees, Dudley
C. Eastbourne and wife Barbara A. Eastbourne, damages for defects in the construction of their
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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.
and D. MICHAEL SWINEY, JJ., joined.

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

John Carson, III, 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 (hereinafter, " Mr.
Brumitte") entered into a construction contract with the Eastbournes for the construction of a lake
front house in the Tellico Village Subdivision in Loudon County. It appears that the documents
governing the specifics of construction which were agreed to by the parties consisted of a one page
contract, architectural drawings/plans, a list of specifications prepared by Mr. Eastbourne and
change orders executed after construction began.
 Although the Eastbournes were living in Minnesota when construction of the house began,
they returned to Tennessee on a couple of occasions to check on the progress of construction in
January or February of 1998 before moving here permanently shortly thereafter.

As construction continued the Eastbournes expressed dissatisfaction with various elements
of Mr. Brumitte's work and disputes arose between the parties which culminated in the Eastbournes'
dismissal of Mr. Brumitte in early November of 1998. Thereafter, the Eastbournes employed another
contractor, Gary Alcorn, to complete the home and remedy perceived defects.

On November 19, 1998, the Eastbournes filed a complaint against Mr. Brumitte in the
Loudon County Chancery Court for damages in a then undetermined amount not to exceed
$250,000.00. The complaint asserted that Mr. Brumitte was in material breach of the parties'
agreement in the following respects:

(a) the house has not been constructed in accordance with the plans submitted;
and
(b) the house has not been constructed in accordance with the specifications
submitted; and
(c) the house has not been constructed in accordance with standard practices; and
(d) the house has not been constructed within the time represented by the
Defendant.

On January 22, 1999, Mr. Brumitte filed an answer and counter-complaint by which the
above assertions were denied. The counter-complaint further charged the Eastbournes with breach
of contract by reason of their failure to pay sums which Mr. Brumitte asserted were due him for
"labor, materials and other work performed on the job." In consequence of this alleged breach of
contract Mr. Brumitte’s counter-complaint requested damages in the amount of $92,175.14.

The case was tried without a jury in August of 2001. After presentation of proof and
argument of counsel, the Trial Court found that, as a result of Mr. Brumitte's breach of contract, the
Eastbournes sustained damage to their home for which they should be awarded a judgment in the
amount of $60,000.00. The following day the Court notified the parties by letter of its decision to
increase the amount of judgment to $74,514.50. The Court entered its final judgment nunc pro tunc
on October 10, 2001, awarding the Eastbournes $74,514.50. The judgment further dismisses Mr.
Brumitte’s counter-complaint against the Eastbournes with full prejudice. Mr. Brumitte filed a
motion to alter, amend and reduce judgment on November 9, 2001; however, this motion was
denied. On January 2, 2002, Brumitte filed notice of appeal.

The issues presented in this case are restated as follows:

1. Should Mr. Brumitte be absolved of liability for failure to correct defects in the
Eastbourne’s house upon grounds that he was either not given notice of such defects or was
prohibited from correcting them?

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 2. Does the evidence presented in this case indicate that the amount of damages awarded to
the Eastbournes was either excessive or inadequate?

In a non-jury case such as this one our standard of review is de novo upon the record with
a presumption that the findings of the Trial Court are correct absent a preponderance of evidence 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
heard the witnesses testify, is in the best position to determine the witnesses' credibility. Bowman
v. Bowman, 836 S.W.2d 563 (Tenn. Ct. App. 1991).

The first issue we address is whether Brumitte should be relieved of liability for defects in
the Eastbournes’ house upon grounds that he was either not given notice of such defects or was
prohibited from implementing their correction.

Mr. Brumitte cites Carter v. Krueger, 916 S.W.2d 932 (Tenn. Ct. App. 1995) for the
proposition that a contracting party’s failure to give notice of defects and afford an opportunity to
correct such defects constitutes a breach of contract. Mr. Brumitte also cites McClain v. Kimbrough
Construction Co., 806 S.W2d 194 (Tenn. Ct. App. 1990) for the proposition that a contracting party
has an affirmative duty to give notice of defective work and allow an opportunity to correct such
work before terminating the contract.

In his brief Mr. Brumitte maintains that the Eastbournes’ complaints regarding construction
of the house fall into two categories - “complaints that were never called to his attention” and
“complaints that arose while Brumitte was on the job, but which he was specifically instructed not
to address.”

With apparent reference to the first of these two categories, Mr. Brumitte observes in his
brief that the Court held him responsible for “the cost of cross-bracing the roof trusses, uneven load
bearing walls which caused the floors not to be level, improper installation of porch columns, and
cracks in the flooring and interior columns.” However, Mr. Brumitte contends that “[a]ll these
problems arose after Mr. Eastbourne brought in a series of experts” and “the experts reports were
dated at 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 September 21, 1998, that experts
were reviewing the house and their reports would be shared with him at a later date. However, Mr.
Brumitte maintains that he had not received any of these reports as of the time of his dismissal.

We disagree that the record supports Mr. Brumitte’s contention that all of the above
delineated problems arose after experts were consulted and it appears from our review of the record
that they were, in large part, problems Mr. Brumitte should have been aware of even absent
notification by the Eastbournes. In any event, to the extent that the Eastbournes neglected to notify
Mr. Brumitte of any of these problems, our analysis of McClain v. Kimbrough Construstion
Company, ibid. persuades us that under the facts of this case they were not obligated to do so.

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 In McClain a general contractor, Kimbrough, entered into a subcontract with McClain, a
masonry company, to perform brick work on a condominium project in Nashville. As the project
proceeded disputes arose between McClain and Kimbrough regarding various aspects of the brick
work. McClain had laid approximately one fourth of the bricks required for completion when they
were forced to stop work because Kimbrough had not completed grading around the buildings.
Although the parties agreed that McClain could work on another job and that Kimbrough would call
McClain back when the brick work could be completed, McClain was not called back. Instead,
without notice to McClain, another brick mason was hired to complete the brick work and repair or
replace portions of McClain’s work. McClain filed suit against Kimbrough for breach of contract

The trial court in McClain determined “that Kimbrough breached its contract with McClain
by interfering with McClain’s work and by failing to give McClain an opportunity 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 follows at pages 198 and 199:

Under the facts of this 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 give McClain notice constitutes
a material breach unless Kimbrough was excused from performing its obligations
under the subcontract.

Only McClain’s uncured material failure to perform its own contractual
obligations would have excused Kimbrough from performing its remaining
obligations.(emphasis added)

We then noted various factors set forth at section 241 of the Restatement (Second)of
Contracts (1979) which are deemed significant in determining whether a party’s failure to perform
is material. Among these factors are “the extent to which the injured party will be deprived of the
benefit which he reasonably expected” and “the likelihood that the party failing to perform or to offer
to perform will cure his failure, taking account of all the circumstances including any reasonable
assurances.” In light of these factors, it is apparent in the case now before us that Mr. Brumitte
materially failed to perform his contractual obligations and, accordingly, to the extent they did not
do so, the Eastbournes were excused from the duty to provide notice and an opportunity to correct
with regard to the problems indicated by Mr. Brumitte in his brief. In this regard we note the
following with respect to some of the defects in the house which were brought to Mr. Brumitte’s
attention and his response:

1. Foundation - 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
not done. Upon her inspection of the house in January or February of 1998, Ms. Eastbourne noticed
these omissions and brought them to the attention of Mr. Brumitte:

A I spoke with Mr. Brumitte, Roger, about it. And he said, “It’s not necessary.”

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 And I said – he says, “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 go by the
specifications of the plans because it makes for a stronger house.”

Despite Ms. Eastbourne’s complaint and a subsequent written reminder from Mr. Eastbourne
in a punch list provided to Mr. Brumitte in September of 1998, the defects in the foundation were
never corrected.

2. Windows - Although the plans show all the windows at the same elevation when the house
was being framed, Ms. Eastbourne noticed that the windows were at different levels and brought this
to Mr. Brumitte’s attention. The problem was never corrected. During the course of trial the Trial
Court inspected the house and noted in its memorandum opinion that the windows were not the 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 appearance and advised Mr. Brumitte of her dissatisfaction. He told
her not to worry about it, that it hadn’t been cleaned yet and that it would “all be taken care of.” Max
Cook, a consulting engineer and building inspector who performs pre-purchase home inspections,
testified that the brick work on the Eastbourne’s home was the “worst brick work that I had ever seen
in my life. .... It was just horrible, the exterior brick work, the sloppiness. ... [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 relay it. Mr. Eastbourne testified that the brick layers just wanted to patch up the brick.
“It was much more extensive work to do and they weren’t ready to address 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 doors were hung they were not wooden
doors, but rather pressed Masonite.

Q. What did you do when you found out that they weren’t wood?

A. I complained to Mr. Brumitte.

Q. What was his response?

A. Well, “They’re fine. They’re going to be just find.[sic] You don’t need
hardwood doors.” And I said, “But that’s what we contracted for, those hardwood
doors.” I got one hardwood door. One. And that’s the outside door.”

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 5. Mis-positioned toilet - Several witnesses confirmed that a toilet in one of the downstairs
bathrooms 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 door – the bathroom door wouldn’t open completely.
It hit the toilet, the front of the toilet bowl.” Ms. Eastbourne testified that she advised Mr. Brumitte
of this problem.

Q. Did you address that with Mr. Brumitte?

A. Yes, I did. And he told me, he said, “Well, you don’t need to worry.” He
laughed. He said, “You can build a cabinet around that gap.” And I said, “Well
what about the door?” And he says, “Well, you can still get in the door.”

Q. What did you have to do to repair that, ma’am?

A. We had to take the – we had to tear it all 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 brought to Mr. Brumitte’s attention and which
he failed to acknowledge and correct it is our determination that he materially failed to perform 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 asserts that there were complaints that arose while he was 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. Eastbourne instructed him not to
do any touch up or repair of the brick after the brick had been cleaned. The record shows that these
instructions were given by Mr. Eastbourne in late September of 1998. However, as noted in the
punch list provided by Mr. Eastbourne to Mr. Brumitte and dated September 22, 1998, the
complaints about the brickwork had already been discussed for months. During those months
apparently the only remedy offered by Mr. Brumitte was to clean the brick or patch it and, as
previously noted, expert testimony was presented that the only way to remedy the brick problem was
to remove the brick and relay it. It is our determination that Mr. Brumitte had adequate opportunity
to repair the brickwork prior to Mr. Eastbourne’s instructions, but would not concede that the extent
of work necessary to remedy the problem was, in fact, necessary. This is confirmed by Mr.
Brumitte’s previously noted testimony that on a scale of one to ten the quality of the brick work in
the Eastbourne’s house was an eight.

We next address the issue of whether the Trial Court’s award of damages in the amount of
$74,514.50 was appropriate.

The record indicates that the Trial Court calculated the amount of the damage award in this
case as follows. The Court first added $413,743.00, the agreed upon cost of construction as set forth

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in the original contract, and $28, 561.50, the total additional amount the Eastbournes agreed to pay
as shown by change orders. The Court determined that the sum of these two amounts, $442,304.50,
constituted the total amount the Eastbourne’s were contractually obligated 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. Brumitte prior to his dismissal plus $86,819.00 paid to Mr. Alcorn to repair
defects 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 contracted to. The Court further noted
that the Eastbournes sustained damage to their home based upon Mr. Brumitte’s breach of contract
and determined that they should have a judgment in that regard in the amount of $60,000.00.
However, by letter dated two days after trial, the Court notified the parties that upon further
reflection it had determined that the $60,000.00 judgment should be increased to $74,514.50. In
doing so, the Court noted that “reasonable attempts at repair, even if successful, would not be able
to bring the value of the home up to what it would be without defects.” The Court also noted,
apparently 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 payments in excess of the contract.”

Mr. Brumitte contends that the Trial Court’s award of damages should be reversed upon
grounds that it is not supported by sufficient evidence in the record - specifically, that there is no
proof in the record itemizing the costs of repairing defects complained of by the Eastbournes and that
no proof was presented connecting any particular repair expense with any particular defect
attributable to Mr. Brumitte, other than the expense of repairing the brick. Mr. Brumitte 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 Court’s rationale for $10,000.00 of its sua sponte increase
of damages from $60,000.00 to $74,514.50 is unclear. Finally, Mr. Brumitt asserts that the
Eastbournes submitted no credible testimony regarding diminution in value.

Mr. Brumitte argues that if the Trial Court’s award of damages is not reversed or vacated
it should at least be reduced to the extent that it includes $7,833.00 representing costs of excess
rental and storage because time was not of the essence in the contract between the parties in this
case. Mr. Brumitte contends that the award of damages should also be reduced to the extent that it
includes $4,204.00 representing fees and expenses of expert witnesses. Mr. Brumitte asserts that
such expert witness fees and expenses are only allowable under a motion for discretionary costs
pursuant to Tenn. R. of Civ. Pro. 56.04 and even then should be limited to fees/expenses incurred
for actual deposition or trial testimony. Mr. Brumitte also argues that the Court ignored overage
allowances due him in the amount of $10,717.66.

The Eastbournes argue that the Trial Court’s award of damages was insufficient based upon
un-refuted expert testimony that, in its final state of completion, the house was devalued between
$196,469.00 and $245,500.00 as a result of Mr. Brumitte poor construction. In consequence, the
Eastbournes contend that the award of damages should be increased to $200,000.00.

The record shows that, Mr. Eastbourne testified that he paid $86,819.00 to remedy defects
in the house and complete its construction. However, in addition to this testimony, the Eastbournes

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also introduced documentation showing a cost-by-trade breakdown of monies paid 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 rental costs and fees
charged by various experts to inspect and evaluate the house. These storage and rental fees and
expert inspection and evaluation fees are those same fees to which Mr. Brumitte otherwise objects
as noted above. Upon cross examination Mr. Eastwood concedes that he is not seeking
reimbursement of this $12,037.12:

Q And then on the next it says, “See next sheet.” There’s another $12,000 dollars
in there.

A Okay.

Q And it looks like you’ve lumped in a whole bunch of stuff here. Excess rental,
excess storage, Knox Hardwood Flooring Inspection. The items that are listed
right here are included in this number that you’re asking the Court to award you.

A No. I’m asking the Court the $76,000.00 here.

The breakdown sheet shows that the $76,000.00 referred to by Mr. Eastbourne is actually
$76,292.73. In view of Mr. Eastbourne’s testimony, we find that the Trial Court’s allowance of
damages in the amount of $86,819.00 for repairs and completion was excessive by $10,526.27.
Accordingly, it is our determination that the Trial Court’s judgment should be reduced by
$10,526.27.

Mr. Brumitte’s argument that the judgment against him should be vacated in whole upon
grounds that it is not supported by sufficient evidence is without merit. Mr. Eastbourne testified that
the $76,292.73 shown on the breakdown sheet constitutes the amount of money he gave Mr. Alcorn
for repair and completion of his house. And, although we have determined that the $86,819.00
allowed by the Trial Court for repair and completion was excessive based upon Mr. Eastbourne’s
testimony, we also note the testimony of Dr. Harold Deatherage, a professor of civil engineering.
Dr. Deatherage testified that $86,819.00 was a “a very reasonable completion number considering
the amount of remedial work that had to be done.” This testimony of Dr. Deathererage necessarily
supports a finding that the lesser amount of $76,292.73 was also reasonable.

Mr. Brumitte asserts that the Trial Court erred in failing to give him credit for monies he
spent for certain items which cost more than the amounts allowed for those items under the contract.
According to Mr. Brumitte, he is due a total of $10,717.66 for plumbing, electrical, painting, 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 electrical floor plugs, which he included as part of the overage
amount at $300.00, were actually installed. It also appears that Mr. Brumitte included a $925.00
charge for door locks in the change orders for which he was given credit as part of the $28,561.50
noted above and appears to have also included this amount in the additional $10,717.66 he seeks in

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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 failure
to award Mr. Brumitte the balance of the amount he claims for overage and, therefore, it is our
conclusion that the judgment against him should be decreased by an additional $9,492.66 for that
reason.

Finally, we address the Eastbournes’ contention that $70,000.00 is inadequate to compensate
them for diminution in the value of their house as a result of remaining defects. In support of this
argument the Eastbournes reference the testimony of three witnesses - Mr. Eastbourne; 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 seller and you met up with
a willing buyer, and you’re not under any compulsion to buy – or to sell and so
you’re not under any compulsion to sell, given the current condition of your home,
what do you think is a good and fair and reasonable price to be reached between
you and a potential buyer?

A. I would say $550,000. What I meant $550,000, I meant that would be the
asking price. Not what it would actually go for.

Ms. Skofield, a Loudon County real estate broker whose primary market is Tellico Village,
testified that upon touring the Eastbournes’ house she noticed separation and cracks in the hardwood
floors, columns separating from the ceiling and sloping in the floor. She further testified that,
without problems, she would price the house at $800,000.00:

Q Hypothetically, if you’ve got somebody just coming into your office wanting
to look at a lake front $800,000 home, would you want you take them to the
Eastbourne home?

A. No.

Q. Why?

A. Because in good conscience, I could not explain to them why I would think
that their $800,000 home should have those problems. That is the price that I
would put on that without problems.

Ms. Skofield also testified that she “would be very fortunate to get anywhere in the upper
fives for Mr. and Mrs. Eastbourne’s house. I think that it would probably be somewhere in the five
hundred thousand dollar price range versus the eight hundred thousand dollar price range.”

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 Mr. Lee, a real estate broker, appraiser, and licensed contractor, testified that the value of the
house, not needing any repairs and without structural defects, would be $817,500.00. Mr. Lee
further testified that, because of obvious visible problems in the house and without making any
structural determination, the estimated fair market value of the house is $572,250.00.

Mr. Brumitte argues that the Eastbournes submitted no credible testimony regarding
diminution. In support of this argument, he points out that, although Mr. Lee initially testified that
he was currently licensed as an appraiser, upon cross examination he admitted that his license had
been suspended. Mr. Brumitte asserts that it also developed upon cross examination that Mr. Lee’s
appraisal was “unsound and without merit.”

The record shows that after testifying that he was a licensed appraiser, Mr. Lee was cross
examined by Mr. Brumitte’s attorney as follows:

Q Mr. Lee I have a report printed this morning from Tennessee Real Estate
Appraisers Commission that indicates that your real estate appraiser’s license was
suspended on March 8 of 2001. Do you deny that?

Mr. Lee subsequently testified that, although his license was in effect when he appraised the
Eastbournes’ house and prepared his appraisal report in December of 2000, his license was
suspended as of March 8, 2001, for failure to meet continuing education requirements1. After
hearing this testimony, the Trial Court stated that Mr. Lee’s appraisal report and testimony “will
come into evidence and I will give it such weight as I think it deserves.”

The only other reference to the record made by Mr. Brumitte in support of his assertion that
Mr. Lee’s appraisal report was unsound and without merit is Mr. Lee’s admission under cross
examination that his appraisal report erroneously shows two bedrooms on the second level of the
Eastbournes’ home that are not there. However, we also the following additional testimony in that
regard:

Q And you don’t even account for the bonus room but you account for two
bedrooms that don’t exist.

A Well, sir, I’m accounting for five hundred and thirty-four square feet of finished
area on Level 2.

1
A letter in the record from the Tennessee Department of Commerce and Insurance Real Estate Appraiser
Commission dated August 23, 2001, acknowledges that Mr. Lee has submitted everything that is necessary for renewal
of his license, that his license will be made current after processing is complete and that this should occur in one to two
days.

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 Q. But there’s a big difference between a bedroom and a bonus room as far as
evaluation. Isn’t there?

A. No, sir. It’s mostly considered heated finished square footage.

The only other evidence referenced by Mr. Brumitte in support of his assertion that the
Eastbournes’ presented no credible proof regarding diminution in value is the testimony of Michael
Ben Cambell, a licensed and certified real estate appraiser. Mr. Campbell testified as follows
regarding the limitations placed on the scope of his appraisal:

Q In all fairness, your 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 take 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 like, and that was all you were asked to look at?

A Yes.

Q And you were told that these issues and you bolded2, I guess in your report, do
not relate to any structural issues; is that correct?

A That’s correct.

Q And in fact if assuming hypothetically that those issues did relate to structural
issues, it would impact the home?

A It would impact the market value.

The seven areas Mr. Campbell testifies he was requested 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 the concrete of the garage floor, the bonus room/stair tread flooring transition, the
hardwood maple flooring and the slope in the utility room floor. Mr. Campbell’s testimony and
report show his findings and conclusions regarding each of these areas as follows:

2
Our review of Mr. Campbell’s report shows that use of the word “bolded” apparently refers to the
capitalization of letters in the following senten ce from that report: “ It is my understand ing that all issues D O N OT relate
to any structural issues.”

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 1. Brick paver sidewalk and patio - Mr. Campbell noted in his testimony that joint lines in
the patio were not straight. His report noted, however, that the joint lines were acceptable and he
concluded that this would have no negative impact on market value.

2. Elevation of front windows - Mr. Campbell testified that it was pointed out to him that the
garage windows and the front windows were not at the same elevation, but concluded this would
have not have a negative impact on market value.

3. Brick veneer - Mr. Campbell 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 floor concrete - Addressing this issue as aesthetic and not structural, Mr.
Campbell asserts in his report “It has been my experience that concrete floors often have surface
cracks which does not impact market value.”

5. Bonus room/stair tread flooring transition - Mr. Campbell’s report notes a difference in
elevation between the stair tread and bonus room flooring but 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. Hardwood maple flooring - Mr. Cambell notes a gap in the hardwood 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 structural,
then this would impact market value.”

In view of the limited scope of Mr. Campbell’s examination and his admission that his
conclusions are based on an assumption that none of the problems he examined are caused by
structural defects, we do not find that his testimony and report are sufficient to negate other evidence
presented in this case that the Eastbournes’ house suffered diminution in value. At one point in his
testimony, Mr. Campbell admits that Ms. Scofield, who testified that the house did suffer diminution
in value, is a reliable or good source of information and that she is very knowledgeable of the Tellico
Village market. Additionally, although Mr. Campbell’s appraisal is premised on the theory that there
are not structural problems in the house, the Trial Court determined that there are structural problems
based upon its own inspection of the house and evidence presented at trial. In this regard the Court
stated as follows:

All you got to do is walk across the floor and you could feel the difference
in the elevation of the level of the floor. And it’s noticeable when you walk

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 across it. And not only that, but there were places 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 floor, for some reason, it didn’t.

And so I think this is a real problem. I think the floors – if I had to pick
out one thing that would trouble the plaintiffs with regard to the construction of
this home, it would be the fact that the wall which supports the floor trusses out
there on which they rest, come together, was obviously built substantially lower
than the supporting walls at either end. It was built wrong.

There again failure to see the defects. And the experts who testified all
said that it would be a problem to come in and raise, jack up the trusses because
of the racking effect that that could have on the house and the sheetrock and the
nails and other things of that sort. And I accept that.

The Trial Court further found that the crack in the hardwood floor was related to the trusses,
and that the cracks in the garage floor were 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 columns are too big. “And what could be done to repair those now and
to make it fit better, I don’t know. But it still, it does – if you stand there and look at it , it’s a
problem.”

Neither the Trial Court nor this Court is bound by the testimony of the Eastbournes’
witnesses even to the extent that that testimony is not contradicted. Ford Motor Co. v. Taylor, 446
S.W.2d 521 (Tenn. Ct. App. 1969). Our review of the record in this case does not convince us that
the Eastbournes should receive increased damages in the requested amount of $200,000.00.
However, based upon the findings of the Trial Court and the record as a whole, it is our
determination that the Eastbournes should receive some additional damages in order that they may
be adequately compensated for diminution in the value of their house and for that reason we increase
the award for diminution in value by $20,000.00.

In sum, the original award of damages is decreased by the amount of $20,018.93 and
increased by the amount of $20,000.00 . Accordingly, the original ward of damages in the amount
of $74,514.50 is hereby changed to $74,495.57.

For the foregoing reasons the judgment of the Trial Court is affirmed as modified and the
cause remanded for enforcement of the judgment and collection of costs below. Costs of appeal are
adjudged against Roger Brumitte, d/b/a Roger Brumitte Construction and his surety.

_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE

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