                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON
                                         November 17, 2004 Session

                              DONNA MULHERN v. PULTE HOMES

                       A Direct Appeal from the Circuit Court for Shelby County
                       No. CT-007232-02    The Honorable D'Army Bailey, Judge




                        No. W2004-01488-COA-R3-CV - Filed December 28, 2004


        Appellant/Homeowner appeals from the trial court’s grant of summary judgment in favor of
Appellee/Homebuilder. Appellant/Homeowner sued Appellee/Homebuilder on theories of faulty
installation and construction of Appellant/Homeowner’s roof and under the Tennessee Consumer
Protection Act. The trial court found that Appellant/Homeowner’s claims were time barred under
both T.C.A. §28-3-202 and T.C.A. §47-18-110. We affirm.


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

W. FRANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. FARMER ,
J., joined.

Malcolm L. McCune and Michael D. Hornback of Nashville for Appellant, Donna Mulhern

Carol M. Hayden of Memphis for Appellee, Pulte Homes

                                                        OPINION


      On or about November 4, 1997, Donna Mulhern (“Plaintiff,” or “Appellant”) and her
husband, Raymond K. Mulhern, moved into their new home located at 3087 Belgrave Drive in
Memphis, Tennessee (the “House”).1 The House was a spec house, which had been shown to the
Mulherns by an agent representing Radnor Homes, a predecessor of Pulte Homes (“Pulte,”
“Defendant,” or “Appellee”). The roof had been constructed and installed before the Mulherns
moved into the House.

       In May 1998, the Mulherns noticed water leaks in the master bedroom and another bedroom.
One leak was located in the bedroom closet and resulted in water marks on the wall, crumbling
drywall, and molded carpet around the area. Mrs. Mulhern contacted Pulte and was told to put the
problem in writing. Mrs. Mulhern wrote a description of the leaks and faxed it to Pulte.
Approximately two weeks after Mrs. Mulhern informed Pulte of the leaks, Pulte made its first


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             Mr. Mulhern is a joint owner of the House but was not a party to the original suit.
attempt to repair the roof. Pulte, through its agent Janette Odom, allegedly promised to replace the
damaged carpet but failed to do so.

       After the next rain, Mrs. Mulhern noticed the roof leaking in the same places. Once again,
she faxed a request for repair to Pulte. Pulte sent Mrs. Odom’s husband to fix the leaks. At that
time, Mr. Odom discovered that some shingles were loose on the roof and attempted to repair them.

       Although the roof leaks stopped, on February 4, 2000, Mrs. Mulhern wrote a letter to Pulte,
which reads, in relevant part, as follows:

               Several shingles have blown off the roof this morning and it looks
               like several more are on the way down–there is bare wood showing.
               The area is located at the back of the house over the master bedroom.
               I’ve called Janet Odom & she is aware of the problem–the roof has
               been a continuing problem. We’ve had shingles come off on other
               areas as well....

Upon receipt of this letter, Mrs. Odom informed Mrs. Mulhern that the House was out of warranty
and that Pulte would perform no further repairs to the roof.

        Mr. Mulhern then wrote to Pulte’s corporate offices regarding the problems with the roof.
Pulte hired Heath Garner to inspect the roof. Mr. Garner sent the Mulherns a copy of his letter and
findings, which stated that any lost shingles were not the result of construction but were due to
inclement weather. According to Mrs. Mulhern’s deposition, Mr. Garner specifically stated as
follows concerning the roof:

               Q. And what did Mr. Garner say about the roof, if you know?

               A. In the letter it said that there was nothing that he could see that
               was wrong with the roof and that the reason why the shingles were
               sliding off the roof was because of inclement weather.

When asked whether there had been any inclement weather, which might have led to the shingles
falling off, Mrs. Mulhern answered “No.” Following Mr. Garner’s report, the Mulherns hired a
handyman who replaced some shingles at a cost to them of approximately $100.00.

        A few months later, more shingles, over the master bedroom and the garage, began to slide
off the roof. At that point, Mrs. Mulhern decided to call a home inspector. The home inspector
recommended that a roofer be employed to inspect the roof. Mrs. Mulhern hired Rob Jolly. Mr.
Jolly inspected the roof on or about May 9, 2001. According to Mrs. Mulhern’s deposition, Mr. Jolly
made the following findings:
                That [the] roof was improperly installed. They [the roofers] had used
                a pneumatic gun and blew [sic] the nails through the shingles. Instead
                of attaching them [the shingles] to the roof, they blew the nails


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               through the shingles, and they [the shingles] were nailed too high, and
               there were areas where there was no felt paper under those shingles
               and that eventually the whole roof would probably slide off, you
               know, piece by piece.

        The Mulherns were referred to J.D. Roofing. J.D. Roofing estimated that the necessary roof
repairs would cost approximately $10,960.00.

        On or about May 1 2002, Mrs. Mulhern filed suit against Pulte, alleging negligence in the
construction of her roof and violation of the Tennessee Consumer Protection Act due to fraud and
concealment of the defective construction and installation of the roof. On January 8, 2004, Pulte
filed a Motion for Summary Judgment along with a Statement of Material Facts in support thereof.
On January 29, 2004, Mrs. Mulhern filed a Response to the Motion for Summary Judgment along
with the Affidavit of Rob Jolly in support thereof. The Motion for Summary Judgment was heard
on April 2, 2004. Pulte’s Motion for Summary Judgment was granted by Order of April 23, 2004.

        Mrs. Mulhern appeals and raises one issue for review as stated in her brief: “Whether the trial
court erred in granting summary judgment against Appellant based upon the statute of limitations
found in Tenn. Code Ann. §28-3-202 and Tenn. Code Ann. §47-18-110.”

        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993),
our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine issue of
               material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery materials, that there is a genuine, material fact
               dispute to warrant a trial. In this regard, Rule 56.05 provides that the
               nonmoving party cannot simply rely upon his pleadings but must set
               forth specific facts showing that there is a genuine issue of material
               fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn
.1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of



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the trial court's grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

         The question of whether summary judgment was proper here rests on the trial court’s
application of T.C.A. §28-3-202 and T.C.A. §47-18-110. We will address each of these statutes in
turn.

Construction Defect T.C.A. §28-3-202

       T.C.A. §28-3-202 (2000) limits suits based upon alleged construction defects as follows:

               All actions to recover damages for any deficiency in the design,

               planning, supervision, observation of construction, or construction of

               an improvement to real property, for injury to property, real or

               personal, arising out of such deficiency, or for injury to the person or

               for wrongful death arising out of any such deficiency, shall be brought

               against any person performing or furnishing the design, planning,

               supervision, observation of construction, construction of, or land

               surveying in connection with, such an improvement within four (4)

               years after substantial completion of such an improvement.

       Here, the House was substantially completed on October 30, 1997. Under T.C.A. § 28-3-202,
Mrs. Mulhern would have had until October 30, 2001 to file suit. However, there are two statutory
exceptions to this four year limit. The first is found at T.C.A. § 28-3-203 (2000), which reads, in
pertinent part, as follows:

               Injury during fourth year after completion–Limitation of
               action.–(a) Notwithstanding the provisions of § 28-3-202, in the case
               of such an injury to property or person or such injury causing
               wrongful death, which injury occurred during the fourth year after
               such substantial completion, an action in court to recover damages for
               such injury or wrongful death shall be brought within one (1) year
               after the date on which such injury occurred....

(Emphasis added).



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        Mrs. Mulhern asserts that her claims fall within this exception because the damage (i.e.
sliding shingles) was not “discovered and incurred” until May 9, 2001. May 9, 2001 is the date that
Mr. Jolly informed the Mulherns that, in his opinion, the sliding shingles were the result of defective
workmanship. As set out above, the T.C.A. § 28-3-203 exception is based upon the injury occurring
during the fourth year after substantial completion. Here, Mrs. Mulhern’s February 4, 2000 letter,
see supra, indicates that this damage was already occurring in 2000, if not as early as 1998 as
indicated by Mr. Odom’s repairing some sections of shingles at that point. Consequently, the damage
here did not occur in the fourth year after substantial completion (i.e. 2001). Therefore, this
exception is not applicable.

        The second exception to the four year limit is found at T.C.A. § 28-3-205(b) (2000), which
reads, in relevant part, as follows:

               The limitation hereby provided shall not be available as a defense to
               any person who shall have been guilty of fraud in performing or
               furnishing the design, planning, supervision, observation of
               construction, construction of, or land surveying, in connection with
               such an improvement, or to any person who shall wrongfully conceal
               any such cause of action.

        Mrs. Mulhern asserts that Pulte’s agent, Mr. Heath Garner, fraudulently concealed the faulty
workmanship on the roof when Pulte sent him to inspect the House. We disagree. The record before
us indicates that at least two people inspected the roof of the House. The first was Mr. Garner who
opined that any sliding shingles were the result of inclement weather and not the result of faulty
workmanship. On the other hand, the Mulherns’ inspector, Mr. Jolly, opined that the shingles had
been improperly installed. Even if we concede that Mr. Garner’s opinion was incorrect, given the
record before us, there is nothing to indicate that his mistake was intentional or that he knowingly
concealed information from the Mulherns. Consequently, we cannot say that Pulte, through its agent,
engaged in fraud or concealment such that the above exception would apply.

Tennessee Consumer Protection Act T.C.A. §47-18-110

         Mrs. Mulhern next contends that the trial court erred in concluding that her claim was barred
under the Tennessee Consumer Protection Act. T.C.A. §47-18-110 (Supp. 2004) reads, in relevant
part, as follows:

               Any action commenced pursuant to [the Tennessee Consumer
               Protection Act] shall be brought within one (1) year from a person’s
               discovery of the unlawful act or practice....

(Emphasis added).

Again, Mrs. Mulhern’s letter of February 4, 2000 indicates that the Mulherns had discovered the
damage to their roof at least by that date. This suit was not filed until May 1, 2002. Consequently,

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the trial court did not err in holding that Mrs. Mulhern’s Tennessee Consumer Protection claim was
barred by the one year statute of limitations.

        For the foregoing reasons we affirm the Order of the trial court granting summary judgment
in favor of Pulte. Costs of this appeal are assessed against the Appellant, Donna Mulhern, and her
surety.


                                             __________________________________________
                                             W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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