                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   March 27, 2001 Session

LEON WILLIAMS GENERAL CONTRACTOR, A/K/A LEON WILLIAMS
GENERAL CONTRACTOR, INC. v. D. F. SHOFFNER MECHANICAL &
INDUSTRIAL CONTRACTORS, INC.

                       Appeal from the Circuit Court for Blount County
                           No. L-10999     W. Dale Young, Judge

                                      FILED SEPTEMBER 21, 2001

                                 No. E2000-01877-COA-R3-CV



This is a suit by a general contractor against a sub-contractor for breach of contract and negligence
in installing heating, ventilation and air conditioning equipment. The Trial Court granted summary
judgment in favor of the sub-contractor, resulting in this appeal. We find in light of the Supreme
Court case of Harris v. Chern, which was delivered after the Trial Court ruled on the motion to alter
or amend, that the order overruling the motion should be vacated and the Trial Court should
reconsider it in light of Harris. We accordingly vacate the order overruling the motion to alter or
amend, and remand.

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

Wanda G. Sobieski, Knoxville, Tennessee, for the Appellant, Leon Williams General Contractor,
a/k/a Leon Williams General Contractor, Inc.

William A. Reeves, Knoxville, Tennessee, for the Appellee, D. F. Shoffner Mechanical & Industrial
Contractors, Inc.

                                            OPINION


        This is a suit by Leon Williams General Contractor, a/k/a Leon Williams General Contractor,
Inc., against its sub-contractor, D. F. Shoffner Mechanical & Industrial Contractors, Inc. Tennessee
Associates International, Inc., and Williams entered into a contract whereby Williams would be
general contractor for erecting a building for Tennessee Associates. The architect employed for the
project was Michael Brady Architect, Inc., who was recommended by Williams. Mr. Brady
submitted three or four names for employment as a mechanical engineer. Shoffner expressed a
preference for Albert F. G. Bedinger Consulting Engineers, Inc., which was then hired. After
completion of the building, the heating, ventilation, and air conditioning systems installed by
Shoffner failed repeatedly and continued to cause severe problems, notwithstanding corrective
measures employed. At the suggestion of Mr. Shoffner, another mechanical engineer, H. Gene
Daves, was hired to solve the problem, which he identified as follows:

         To summarize, the single zone Carrier 48TJ rooftop units and the variable volume
         fan powered box system as designed are not compatible. Either the units need to
         be changed to a variable volume type or the system needs to be modified.

       The recommendations of Mr. Daves were implemented by Shoffner at its cost,
which appeared to have solved the problem.

        At some point, Tennessee Associates assigned any cause of action it might have
against various parties to Williams, who filed a suit against Michael Brady Architect, Inc.,
Albert F. G. Bedinger Consulting Engineers, Inc., D. F. Shoffner Mechanical & Industrial
Contractors, and Johnson Controls, Inc.

        Shoffner filed a motion for summary judgment, asserting that the claim against it
was barred by an accord and satisfaction, a novation and by Williams’ failure to show any
fault on its part. The Trial Judge, although not specifying upon which ground or grounds
he relied, sustained the motion and thereafter made it final pursuant to Tenn.R.Civ.P. 54.

       Williams appeals, contending there are genuine issues of material fact relative to
the defenses asserted, which precluded entry of a summary judgment.

       The standard of review employed by appellate courts in judging trial courts’ action
has been recently restated in the case of Staples v. CBL & Associates, Inc., 15 S.W.3d 83,
89 (Tenn. 2000), as follows:

                The standards governing the assessment of evidence in the summary
         judgment context are also well established. Courts must view the evidence in the
         light most favorable to the nonmoving party and must also draw all reasonable
         inferences in the nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d
         at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary
         judgment only when both the facts and the inferences to be drawn from the facts
         permit a reasonable person to reach only one conclusion. See McCall v. Wilder,
         913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26
         (Tenn.1995).




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        At the outset, we must determine whether excerpts of certain depositions which were taken
after the summary judgment was granted--but during the pendency of a motion to alter and amend--
should be considered.

        We believe the case of Harris v. Chern, 33 S.W.3d 741 (Tenn.2000), which was delivered
after the Trial Court’s determination and after the appellate briefs were filed by the parties is
dispositive of the question. In that case the Supreme Court set out the factors to be considered when
addressing such a motion:

                  We granted this appeal to determine the standard to be applied in ruling
         upon a Tenn.R.Civ.P. 54.02 motion to revise a grant of partial summary judgment
         based upon evidence beyond that which was before the court when the motion was
         initially granted. For the reasons stated below, we reject the newly discovered
         evidence rule applied by the trial court and set forth in Bradley v. McLeod, 984
         S.W.2d 929 (Tenn.Ct.App.1998). We adopt a test requiring the trial court to
         consider, when applicable: 1) the movant's efforts to obtain evidence to respond
         to the motion for summary judgment; 2) the importance of the newly submitted
         evidence to the movant's case; 3) the explanation offered by the movant for its
         failure to offer the newly submitted evidence in its initial response to the motion
         for summary judgment; 4) the likelihood that the nonmoving party will suffer
         unfair prejudice; and 5) any other relevant factor. Accordingly, we reverse the
         judgment of the Court of Appeals and remand to the trial court for application of
         this standard.

       We accordingly conclude in the case on appeal it is appropriate to vacate the judgment
entered by the Trial Judge and remand the case so that he might consider the factors set out in Harris
and thereafter exercise his sound discretion in ruling on the motion.

        For the foregoing reasons the judgment of the Trial Court is vacated and the cause remanded
for further proceedings in accordance with this opinion. Costs of appeal are adjudged against D. F.
Shoffner Mechanical & Industrial Contractors, Inc.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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