                    IN THE COURT OF APPEALS FOR TENNESSEE

                         WESTERN SECTION AT KNOXVILLE               FILED
                                                                   September 9, 1996
HAROLD WAYNE GIBSON and wife,               )
                                                               Cecil Crowson, Jr.
SYLVIA GIBSON,                              )       SULLIVAN CHANCERY ourt Clerk
                                                               Appellate C
                                            )
       Plaintiffs/Appellants                )       NO. 03A01-9601-CH-00019
                                            )
v.                                          )
                                            )
KIT G. McGLOTHLIN, d/b/a/                   )
KIT McGLOTHLIN BUILDERS, INC.,              )
and KIT G. McGLOTHLIN d/b/a                 )
McGLOTHLIN BUILDERS, INC.,                  )
and McGLOTHLIN BUILDERS, INC.,              )
                                            )
       Defendants/Appellees                 )       AFFIRMED.



Mark S. Dessauer, Kingsport, For the Appellants.

Larry Roberts, Kingsport, for the Appellees.



                                       OPINION

                                                    INMAN, Senior Judge

       This is an action for damages for breach of a construction contract and of an

implied warranty of good workmanship and materials and for negligent construction.

       In November 1992 the parties entered into a contract whereby the defendant

agreed to provide the labor necessary to construct a residence on a lot owned by the

plaintiffs in accordance with the plans and specifications furnished to him.1

       The plaintiffs paid the defendant the contractual amount and took possession

of the house, thereafter presenting to him a punch list of alleged defects in the

construction. Specifically, they complained that the defendant constructed a deck

rather than a porch, contrary to the plans and specifications; failed to properly install

vinyl siding; failed to install various doors properly; and failed to level the floors.

Various other defects were alleged.



       The defendant denied that he failed to construct the house in a workmanlike



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           Labor costs were $26,950.00.
manner or that he was guilty of negligence. He alleged that the plaintiffs were

negligent, and that any damages they incurred should be apportioned under

principles of comparative fault. He further alleged that any deviation from the

building plan was requested by the plaintiffs or agreed to by them.

       The plaintiffs presented evidence of 36 alleged defects in the finished product,

some involving defective workmanship, some involving defective materials, some

involving deviations from the building plan, and some involving negligence in the

construction.

       A major issue involved the porch. The plaintiffs insist that the defendant

constructed a deck rather than a porch, as the plans provided, in that salt-treated

decking was used in lieu of tongue and groove planking, pickets rather than posts

were used, landscaping posts were installed in lieu of columns, with certain other

lesser changes. It is not disputed that the defendant deviated from the building plan

in these particulars; the defendant says that the plaintiffs agreed to the changes and

deviations, otherwise there was no reason to have done so. Moreover, he says that

the alleged porch problems were never mentioned until this lawsuit was filed and

specifically that none was listed on the punch list.

       The Chancellor found that the plaintiffs agreed to the porch changes. Our

review is de novo on the record accompanied by a presumption of correctness

unless the evidence otherwise preponderates, TENN. R. APP. P., RULE 13(d), and we

cannot find that the evidence preponderates against this finding. Superimposed is

the issue of the credibility of those testifying, concerning which we know nothing, that

being the prerogative of the Chancellor. Harwell v. Harwell, 612 S.W.2d 182 (Tenn.

Ct. App. 1988).

       The appellant complains of the action of the Chancellor in finding that “the

appropriate method is through breach of warranty and not negligence,” thereby

limiting the plaintiffs’ theory of recovery. We have no quarrel with the plaintiff’s

argument that Tennessee law recognizes the tort of negligent construction; we doubt

its application to the peculiar facts of this case, since the parties rights, duties and

liabilities arise out of the written contract, the breach of which encompasses all of the



                                             2
alleged negligent acts of the defendant. Stated differently, it makes no difference

how the theory of recovery is styled; plenary relief may be accorded the plaintiffs

under a breach of contract theory or breach of implied warranty. Assuming the

evidence supported a claim of negligent construction, as the plaintiffs urge, the same

evidence would support a claim for breach of contract or implied warranty. See e.g.,

Cole v. Clifton, 833 S.W.2d 75 (Tenn. Ct. App. 1992).

       The appellants next complain that the Chancellor erred in excluding the

testimony of Linda Helton, whom they presented as an expert in the building trade.

       The expertise of the witness was questioned upon her voir dire, and the

Chancellor reserved judgment on objections to her testimony. She testified about

the deck, that the house was not level, that the chimney top was not level, and to

various other defects, all attributable to poor workmanship, which she opined would

cost $97,942.23 to correct.2 The Chancellor sustained the objections to her

testimony after the fact, stating that “It’s obvious to the Court the witness showed a

complete lack of necessary knowledge to qualify her as an expert. [She] had no

reasonable basis for her opinion.” Aside from the fact that a careful reading of her

testimony tends to reveal serious questions about her qualifications, it is well-settled

in this state that a trial court has wide discretion in the premises, and we cannot say

that the Chancellor abused his discretion in disallowing her testimony. Otis v.

Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992). Moreover, the

credibility of this witness was obviously a pivotal issue. Harwell, supra.

       The plaintiffs next complain that the Chancellor applied the inappropriate

measure of damages, which is alleged to be the cost of repairs unless a substantial

tearing down and rebuilding of the structure is indicated, in which event the damages

are the difference between the value of the defective structure and that of the

structure properly completed. We think the proper measure of damages in this case

is the reasonable cost of repairs. See Estate of Jessee v. White, 633 S.W.2d 767

(Tenn. Ct. App. 1987). This is the measure applied by the Chancellor, who detailed

the following defects as being in breach of warranty and capable of repair for the


      2
          The house cost $137,676.63, inclusive.

                                           3
costs appearing:

       Porch (painting and repairs to lights)                  550.00

       Vinyl problems for the porch and house                  500.00

       Basement (caulking, bracing stair and door repairs)      50.00

       Truss (cut web repairs)                                  75.00

       Shutter                                                  20.00

       Back steps                                               50.00

       Front door (paint and weather stripping)                 25.00

       Back door (weather stripping)                            75.00

       Lattice work (paint and repair)                         200.00

       Brick columns supporting porch                          200.00

       Porch posts (repair and paint)                          120.00

       Inside repairs (sheet rock, second floor stairs        1,000.00
       and banister, trim, kitchen cabinets, one strike
       plate, caulking and sealing electrical outlets,
       tub repairs and painting)

       TOTAL COST OF REPAIRS                                 $2,865.00


       We have reviewed the testimony and cannot find that the evidence

preponderates against these findings. Harwell, supra. The judgment is accordingly

affirmed at the cost of the appellants.


                                          __________________________________
                                          William H. Inman, Senior Judge
CONCUR:



_____________________________
W. Frank Crawford, Presiding Judge (W.S.)



_____________________________
D. Ray Farmer, Judge




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