                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON
                                                                        FILED
                                                                           June 22, 1999
DOUGLAS J. RADANT and                 )
BARBARA RADANT,                       )
                                                                          Cecil Crowson, Jr.
                                      )
                                                                         Appellate Court Clerk
       Plaintiffs/Appellees,          )      Shelby Circuit No. 80794-5 T.D.
                                      )
v.                                    )
                                      )
ROBERT EARWOOD, Individually,         )      Appeal No. 02A01-9802-CV-00029
and as EARWOOD CONTRACTORS,           )
                                      )
       Defendant/Appellant.           )


           APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                         AT MEMPHIS, TENNESSEE


                        THE HONORABLE KAY S. ROBILIO, JUDGE



For the Plaintiffs/Appellees:         For the Defendant/Appellant:

T. Tarry Beasley, II                  Harold W. Fonville, II
Memphis, Tennessee                    Memphis, Tennessee




                                      AFFIRMED AS MODIFIED AND REMANDED


                                      HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, 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/Appellees 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 Earwood 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 contract provided as follows:

                                          ARTICLE X
                                     BUILDER’S WARRANTY

             CONTRACTOR SHALL SUPPLY A ONE (1) YEAR NEW HOME
        LIMITED WARRANTY AS ISSUED BY THE NATIONAL ASSOCIATION OF
        HOMEBUILDERS AND THE HOME BUILDERS ASSOCIATION OF MEMPHIS.
        HOWEVER, ANY ADDITIONAL WARRANTY DESIRED BY THE OWNERS
        SHALL BE PAID FOR BY THE OWNERS.

The Warranty included certain limitations:

        PURCHASER AGREES THAT THIS REGISTERED BUILDER WARRANTY IS
        IN LIEU OF ALL OTHER WARRANTIES, STATUTORY OR OTHERWISE,
        EXPRESSED OR IMPLIED, ALL OTHER REPRESENTATIONS MADE BY
        BUILDER AND ALL OTHER OBLIGATIONS OR LIABILITIES WITH
        RESPECT TO SAID PROPERTY.        IMPLIED WARRANTIES OF
        MERCHANTABILITY AND FITNESS ARE SPECIFICALLY EXCLUDED, AND
        THE BUILDER’S OBLIGATION SHALL NOT EXCEED ITS OBLIGATION SET
        FORTH IN SAID REGISTERED BUILDER WARRANTY.

The Warranty lists possible deficiencies or problems in construction. For each possible deficiency,

the Warranty lists a performance standard explaining acceptable construction standards and describes

whether it is the responsibility 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, 1995, the Radants 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. Earwood acknowledged that water was ponding in the backyard, and that the
problem was covered by the Warranty. In a letter to the Radants dated October 17, 1995, Earwood

said:

        The condition of the yard is as much an embarrassment to me as it is to you. As you
        know, I have hired a local Civil Engineering firm to come up with a drainage plan
        to eliminate any further problems. I have done this at my own expense and have
        gone on record as saying that I fully intend to make this situation RIGHT! While I
        will apologize for this taking longer to accomplish 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 French drain system that

emptied into underground tanks. However, even after installation of the French drain, the yard

continued to have substantial drainage problems.

        In May, 1996, the Radants furnished Earwood with another list of items that needed to be

remedied. The list included:

        22. BACK YARD DOES NOT DRAIN PROPERLY; WATER STAYS IN BACK
        YARD DAYS AND SOMETIMES WEEKS AFTER A RAIN SHOWER. BACK
        YARD HAS BEEN UNUSABLE SINCE MOVE IN ON AUGUST 18. 1995 [sic].

In a letter to the Radants dated June 15, 1996, Earwood stated:

        I would like to sum up the situation as I see it.

               a) the water that is still ponding in the backyard is coming from all
               four of your surrounding neighbors on a daily basis as they water
               their lawns.
               b) the daily rains that you mentioned in your letter were excessive
               and, under normal circumstances, would be handled by the subsurface
               drainage system that I installed.
               c) the surface water drainage system of this portion of the subdivision
               was poorly designed in that there should have been a drain inlet in the
               back corner of your lot at the intersection of three lots. This would
               have allowed us to grade the backyard from the house to that drain.
               What we were forced to do was to grade from a point at the back of
               the yard all the way to the front. A distance of some 209 feet.
               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 water is ponding. I
               explained to you after we left there on May 26th that once all of the
               newly filled areas have settled, that we would be back to make the
               needed adjustments.

               Doug, to put this in simple terms, I have done all that I feel is under my
        responsibility to make corrections with the work on your yard. This, of course, 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 installed, 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 was taking to correct the drainage problem. It was
        designed to handle the water generated by normal rainfall and in our discussions, I


                                                   2
       explained that water generated by rainfall may stand in certain areas on an average
       of 24 hours and no longer than 48 hours. Based on the Homebuilder’s Warranty
       issued to you at closing, this is my limit of responsibility.

                In closing, I would like to say that I have been committed from Day One to
       fulfilling my responsibility as your builder, but it is now out of my hands. In my
       opinion, the burden of providing proper drainage at the property lines and beyond
       rests with the developer. . . .

       The Radants submitted the matter to independent inspection by the Home Builders

Association of Memphis - Registered Builder Committee. The committee issued an inspection

report on September 10, 1996, which included the following:

       The Registered Builder Committee of the Home Builders Association of Memphis
       determined that your builder should correct the following 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

       Standard: The 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 periods in the immediate area after a rain (generally no more
       than 24 hours), except that in swales which drain other areas, or in arears [sic] where
       sump pumps discharge, a longer period can be anticipated (generally no more than
       48 hours). The possibility of standing water after an unusually heavy rainfall should
       be anticipated. . . .

       ****

       Problem: Crack between garage door & wall

       Standard: Exterior doors will warp to some degree due to temperature differential on
       inside and outside surfaces. However, they shall not warp to the extent that they
       become inoperable or cease to be weather resistant or exceed National Woodwork
       Manufacturers Association Standards. . . .

       ****

       Problem: Playroom windows not sealing properly

       Standard: Builder will adjust or correct poorly fitted doors, windows and poorly
       fitted weatherstripping.

       ****

       Problem: Tile cracked in bathroom

       Standard: Ceramic tile shall not crack or become loose and builder will replace
       cracked tiles and resecure loose tiles.

       ****

       Problem: Cracks above garage door

       Standard: Cracks greater than 3/8 inch in width are considered excessive. Builder
       will repair cracks in excess by pointing or patching.

                                                 3
        ****

        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, alleging certain defects in the construction of the

home. The Radants attached as an exhibit to the complaint a punch list dated May 20, 1996

purportedly listing uncorrected problems with the home. The following defects were alleged:

cracked tile; misaligned windows; cracked walls, ceilings, exterior bricks, garage, and driveway;

peeling ceilings; loose electrical outlets and lighting fixtures; loose floor boards; water leakage

inside the house; gaps between kitchen cabinets; separation of wood trim from walls; improper

installation of dishwasher; failure to install soffitt grills and certain insulation; scratches on windows;

improperly functioning sink drain; stain spots on front door; improper wood grate above front door;

dead grass 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 there 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 defects

reported by the Radants were really “defects,” and disputed his obligation to fix many of the alleged

defects. Earwood denied that any of the alleged problems would cause future damage or require

future repairs. He raised several defenses, including failure to state a claim, that many of the

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 bench trial, the trial court heard testimony and received evidence

regarding a number of issues, including the diminution in value of the house and the estimated cost

of repair. The Radants submitted 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 been worth $305,000 if it were properly repaired.

Douglas Radant testified that 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 spent



                                                    4
approximately $3000 on contractors, landscapers, and other experts to analyze how they 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 offered 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 following components: $16,496 to excavate and remove 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

miscellaneous 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 attic and cutting 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 the 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 Lee Hatcher, a Certified Landscape

Professional. Hatcher testified that the drainage tanks installed in the back yard in connection with

the French drainage system would need to be removed since the water could not percolate out of

them as fast as 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 remove the tanks. He concluded that the

drainage problem was the result of the subdivision developer failing to install a drain when the

subdivision was designed. He found no damage to the foundation. To correct the cracked pilaster

                                                  5
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 the brick pilaster by the back door or the cracks in the brick above

the garage because the Warranty 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 that the items listed in the inspection report by

the Home Builders 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. Earwood agreed he was responsible for

correcting these problems.

       On September 12, 1997, the trial court 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 numerous 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” provided in relevant part:

       The devaluation and loss to the Plaintiffs in the value of their home was established
       by the testimony of the expert appraiser, the evaluation by the homeowners and
       adjusted according to cost of repair as testified to by the contractor and civil engineer
       to $30,000 for which judgment will be granted.

In addition to the improperly completed back yard, 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 deteriorated concrete, misaligned door and

windows, and several leaks about the home, including numerous windows and the chimney, a

misfitting window grid, a ceiling problem where the air conditioner drain had been installed

improperly with a broken 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 findings of fact by the trial court is de novo upon the record of the trial

court, accompanied by a presumption of correctness of the factual findings unless the preponderance



                                                  6
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. Bottoms, 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 depreciation 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 Radants instead

submitted proof pertaining to the value of the house at the time of trial. Earwood contends that the

trial court should have utilized the cost of repair as the measure of damages, minus items which are

specifically excluded in the Warranty and recognizing the Warranty’s disclaimer of implied

warranties of merchantability and fitness and other items.

       The Radants maintain that the trial court utilized the correct measure of damages but

committed error in its calculation of damages. The Radants argue that the limitations in the

Warranty are not controlling because Earwood gave the Radants further assurances, verbally and in

writing. They request that the trial court’s award be modified to at least $37,240 up to a maximum

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 uncontroverted testimony on the devaluation of the home, then referred 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 plaintiff, 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. App. 1990); Action Ads, Inc. v. William

B. Tanner Co., 592 S.W.2d 572, 575 (Tenn. App. 1979). Both parties rely upon Edenfield v.

Woodlawn Manor, 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 correcting the defects or
       completing the omissions, rather than the difference in value between what ought to
       have been done in the performance of the contract and what has been done, where the
       correction or completion would not involve unreasonable destruction of the work
       done by the contractor and the cost thereof would not be grossly disproportionate to


                                                  7
       the results to be obtained. On the other hand, the courts generally adhere to the view
       that if a builder or contractor has not fully performed the terms of the construction
       agreement, but to repair the defects or omissions would require a substantial tearing
       down and rebuilding of the structure, the measure of damages is the difference in
       value between the work 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 structure and that 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 contract to construct a dwelling, where it is not
       constructed in accordance with the plans and specifications, are the amount required
       to reconstruct it to make it conform to such plans and specifications, rather than the
       difference in loan or market value on the finished dwelling, since unlike a
       commercial structure, a dwelling has an esthetic value and must 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 also Birdwell v. McKinney, No. 01A01-9701-CV-

00023, 1997 WL 773730, at *10 (Tenn. App. Dec. 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, 1989 WL 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 difference between the
       reasonable market value of the premises immediately 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 property to
       its former condition in 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 consideration in attempting to determine the difference
       in the property’s value . . . and in this case it was 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 cost of repair as the measure of damages. Generally, the measure of



                                                  8
damages will be the cost of repair unless the repairs are not feasible or 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. App. 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 indicated that the cost of repair for all items

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 these circumstances, the appropriate

measure of damages is the cost of repair.

       We next consider the effect of the Warranty. The Radants do not dispute that the Warranty

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 community standards.

They contend that many of the items Earwood argues are not covered by the Warranty were not

constructed properly. Since the defects were present before the Warranty became effective, the

Radants argue that the Warranty cannot serve as a bar to their recovery. Earwood responds that the

language of the Warranty plainly states that “[t]he commencement date of this warranty is the date

of property transfer or the date of first occupancy, whichever occurs first.” The language of the

Warranty plainly states the effective date of the Warranty.         We do not find the Warranty

unenforceable on this basis.

       The Radants also argue that Earwood gave assurances, verbally and in writing, beyond those

provided in the Warranty, and that therefore Earwood should not be permitted to assert as a defense

the limitations contained in the Warranty. Earwood does not deny making several assurances;

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 Warranty.

       In Dixon v. Mountain City Construction Co., 632 S.W.2d 538 (Tenn. 1982), our Supreme

Court adopted the doctrine of the implied warranty of good workmanship and materials as applied

to newly built dwellings. The Supreme Court noted that:

       This warranty is implied only when the written contract is silent. Builder-vendors
       and purchasers are free to contract in writing for a warranty upon different terms and
       conditions or to expressly disclaim any warranty.




                                                  9
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 valid disclaimer of the implied warranty, it must
         be in clear and unambiguous language. 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 (1984)); see also Axline v. Kutner, 863 S.W.2d

421, 424 (Tenn. App. 1993).

         The Warranty in this case specifically excludes the implied warranties of merchantability and

fitness. The Warranty also limits the implied warranties of workmanship and materials to certain

enumerated deficiencies arising within the first year after completion of the home.

         This Court has held that language in a warranty similar to that contained in the Warranty in

this case is sufficient to disclaim all other warranties, including the implied warranty of good

workmanship and materials as set forth in Dixon. See Henry v. Nova, Inc., No. 03A01-9804-CH-

00121, 1998 Tenn. App. LEXIS 593 (Aug. 17, 1998) (interpreting the language: “This warranty is

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

merchantability”); Bunch v. Cooper, No. 03A01-9705-CV-00154, 1997 Tenn. App. LEXIS 652

(Sept. 30, 1997) (interpreting the language: “This warranty is in lieu of all other warranties, express

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 clearly 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, 1995 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 repair 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:

installation 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 Radants argued that the estimate by their expert, Robert Pollan, covered all

the repairs still needed on the property. A comparison of the deficiencies listed in Pollan’s estimate


                                                  10
with the items listed in Earwood’s letters shows that the Radants seek recovery for only three items

that were also listed in Earwood’s letters: the grid above the front door, the pouring of additional

concrete on the driveway, and the backyard drainage 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 obligations to install the proper grid above the front door or the pouring of additional

concrete. Earwood disputes only the Radants’ 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 these items were within the performance standards of the Warranty and that,

as a result, the Radants cannot recover for these items. There is no dispute over the items listed in

his letters. Indeed, these items are not inconsistent with the Warranty. Therefore, the assurances

contained in Earwood’s letters, concerning items whose coverage under the Warranty is not disputed,

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 are covered by the Warranty and the amount attributable to items that are

excluded. The cause must be remanded for the trial court to determine 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 assert that Earwood is

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

been charged extra for the brick quoins 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

done. Earwood 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 price 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 preponderate against the trial court’s

decision not to award damages on these items. This decision is affirmed.




                                                  11
       In sum, the appropriate measure of damages in this case is the cost of repair. We do not find

that the statements in Earwood’s letters to the Radants prevent Earwood from asserting as a defense

the limitations of the Warranty. The case is remanded to the trial court for a determination of which

items included in the damages award are recoverable under the Warranty. A preponderance of the

evidence supports the trial court’s exclusion from the damages award of several 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 Appellant, for which execution may issue if

necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




                                                 12
