                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 January 31, 2011 Session

                   CHARLES S. PESCE v. EAST TENNESSEE
                     CONSTRUCTION SERVICES, INC.

                   Appeal from the Circuit Court for McMinn County
                        No. 25444     J. Michael Sharp, Judge


               No. E2010-01071-COA-R3-CV - Filed February 28, 2011


D. MICHAEL SWINEY, J., concurring.

               Given the record presented to us on appeal, I concur fully in the majority’s
Opinion. I write separately, however, to express my concern as to the diminution in value
damages of $382,000 awarded to the Owner. I agree with the majority that, given the record
presented to us, this result is correct. I also agree with the majority that the Owner is “in
possession of a fully operational, profitable, dental office...” which the Owner had used for
several years by the time of trial. As stated by the majority, the Owner incurred “construction
cost of approximately $460,000...” in constructing this building. The diminution in value
award of $382,000, with which I concur given the record presented to us, means that the
owner will end up with construction costs of only approximately $78,000 for “a fully
operational, profitable, dental office.”

              I find it more than a little troubling that the result of our decision is that the
Owner ends up with a building that has functioned for years as his “fully operational,
profitable, dental office” for a construction cost of only approximately $78,000. This
bothersome outcome results from the proof presented to the Trial Court that even though the
Owner had only approximately $460,000 in construction costs, the building somehow would
have been worth over $700,000 if it had been constructed as it should have been for
approximately $460,000. I believe, however, that the record as presented to us leaves us no
choice but to do exactly what the majority has done, and I, therefore, fully concur with the
majority Opinion.


                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE
