             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                         FILED
                                                         September 1, 1999

GREI S. HINSEN,                          )               Cecil Crowson, Jr.
                                         )              Appellate Court Clerk
       Plaintiff/Appellant,              )
                                         )   Appeal No.
VS.                                      )   01-A-01-9811-CH-00583
                                         )
MARK E. MEADORS,                         )   Davidson Chancery
Individually and d/b/a MEM               )   No. 97-4080-II
CONTRACTORS, and HAILEY                  )
BROWN,                                   )
                                         )
       Defendants/Appellees.             )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

              THE HONORABLE CAROL L. MCCOY, CHANCELLOR




PHILLIP BYRON JONES
1810 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee 37219
      Attorney for Plaintiff/Appellant

STEPHEN M. MILLER
1103 B 17th Avenue South
Nashville, Tennessee 37212
      Attorney for Defendant/Appellee Mark E. Meadors

W. GARY BLACKBURN
414 Union Street, Suite 2050
Nashville, Tennessee 37219
      Attorney for Defendant/Appellee Hailey Brown



                              AFFIRMED AND REMANDED



                                             BEN H. CANTRELL,
                                             PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.
                                 OPINION
              This is an action by a homeowner against a remodeling contractor and

a painter for the failure of the paint inside the house. The Chancery Court of

Davidson County dismissed the homeowner’s claims. We affirm.




                                           I.



              Grei S. Hinsen, an interior designer, bought a 1960's ranch home in

Forest Hills in the fall of 1995. He had plans to renovate the home and he relayed

these plans to Mark E. Meadors, a home improvement contractor. Mr. Meadors made

an estimate for the changes, and Mr. Hinsen hired him to supervise the work. Mr.

Meadors secured the labor and materials and Mr. Hinsen paid his costs plus a mark-

up of twenty percent. Mr. Meadors agreed that all work done under his control and

supervision would be done in a workmanlike manner.



              The interior changes required the removal of a load-bearing wall and the

installation of a beam to help support the roof. The new walls had to be taped,

finished, sanded, and painted. Mr. Meadors hired a drywall contractor. He also hired

a painter. After the drywall contractor left the job Mr. Meadors and the painter noticed

some irregularities in the work. Mr. Meadors himself repaired some of the areas

where the irregularities appeared. On other areas Mr. Meadors and the painter chose

to use a product called Sheetrock Firstcoat to give the walls an even appearance.



              The interior work took place in the winter. Mr. Meadors used two

propane heaters to provide heat until the central heating unit was installed. Despite

the use of the heaters, the evidence is in conflict as to whether the indoor temperature

ever reached a level where it was safe to apply the Firstcoat or the paint.




                                         -2-
              There were three parts of the overall work that the owner accomplished

on his own without Mr. Meadors’ supervision. He had a pool installed to the rear of

the house; he had the exterior landscaped and a sprinkler system installed; and he

had a metal roof placed over the old roof. When the weather warmed up, it became

obvious that the air conditioning system would not satisfactorily cool the house nor

reduce the inside humidity. In installing the new metal roof the roofing contractor

altered the attic ventilation to such an extent that the attic became very hot, and the

ceiling radiated heat into the interior of the house. The outside sprinkler system also

apparently caused water to run into the crawl space under the house, and the

landscaing work covered over some of the foundation vents.



              The evidence is in dispute over the effect of the new roof and the water

in the crawl space on the humidity level in the house at the critical time after the paint

was applied. It is undisputed, however, that the owner had Mr. Meadors install an

exhaust fan and eave vents in the attic and an exhaust fan in the crawl space.



              Within a few weeks of moving into the home the owner noticed that the

paint had cracked above some of the light switches. It also cracked next to the

recessed light fixtures and the heating/air conditioning vents in the ceiling. The

problem became progressively worse. The paint peeled in some places and cracked

along the baseboards and in the corners. In other places ridges formed as if the wall

had buckled slightly.



              The owner sued Mr. Meadors and Mr. Brown, the painter.                 The

complaint contained two counts, one for negligence and the other for breach of

contract. At the close of the plaintiff’s proof both defendants moved for dismissal

pursuant to Rule 41.02, Tenn. R. Civ. Proc. In response the trial judge stated:

                       “As I have reviewed the evidence thus far, it
              appears that the plaintiff has at least presented the prima
              facia [sic] case in that Mr. Brown was employed, and
              privity is not essential in these matters, to paint the house.

                                          -3-
He had the duty to do it in a workman-like fashion and to
use the requisite care in applying the paint. The paint did
not adhere. The plaintiff has put forth several theories
and presented evidence to support those theories that he
submits -- demonstrates there has been a breach of the
duty. He’s also put on evidence that Mr. Hinsen has
incurred expenses to repair the damage by virtue of that
breach.

        “The Court makes no finding at the time -- at this
time that there has been a breach or that the damages
are attributable to the work done by Mr. Brown, but merely
finds that there is a prima facia [sic] case that has been
made.

        “With regards to Mr. Meadors, likewise a prima
facia [sic] case exists on the tort claim.

       *      *       *

      “While Mr. Hinsen has alleged a claim for breach
of contract cause of action, has as a factual basis
damage to property, that is, defective or poor
workmanship, failure to abide by the duty to perform in a
workman-like fashion, which means that the gravamen of
the complaint is damaged property which sounds in tort
as opposed to contract.

       *      *       *

        “My Court primarily deals with breach of contracts,
and what I have been presented with is essentially a tort
claim: failure to perform the work in a workman-like
fashion. Yet it constitutes a breach of a contract, but it is
a tort action that is being pursued.

       *      *       *

      “I respectfully deny the motion for an involuntary
dismissal.”



At the close of all the proof, the court said:

       “I cannot find by a preponderance of the evidence
what caused the problem. And in that regard, I must
decline to find liability on the part of Mr. Meadors or Mr.
Brown by virtue of their negligence.”



                             II.




                            -4-
              The homeowner argues that the chancellor erred in dismissing the claim,

after finding that he had presented a prima facie case of liability. That finding came

at the end of the plaintiff’s proof when the chancellor responded to the defendants’

Rule 41.02, Tenn. R. Civ. Proc. motion to dismiss. The chancellor also stated that

“the Court makes no finding at the time -- at this time that there has been a breach or

that the damages are attributable to the work done by Mr. Brown, but merely finds that

there is a prima facia [sic] case that has been made.” At the end of all the proof, the

chancellor dismissed the claim.



              To find that the chancellor erred we would have to conclude that there

was nothing in the defendants’ proof to refute the plaintiff’s case. Having reviewed the

proof we cannot come to that conclusion. In view of all the evidence, we conclude

that the defendants’ proof introduced enough doubt about the cause of the paint

failure that the chancellor could easily have been moved from a point on the plaintiff’s

side of the balance to a point of doubt about the cause of the failure.



                                          III.

                                   a. Negligence



              The homeowner argues that the evidence introduced at the trial can

rationally support only one conclusion: that the actions and omissions of the

defendants caused the paint to fail. On that point Mr. Hinsen called an expert, a

forensic paint specialist, who conducted some tests and concluded (1) that the drywall

“mud” had not cured properly before the paint was applied; (2) that the paint was

applied over a film of drywall dust; and (3) the primer and paint were applied when the

indoor temperature was too cold for the material to cure properly. He also testified

that some of the failures were consistent with a structural movement in the house

itself.




                                         -5-
              The painter and his employees testified that the mud was dry when they

applied the primer and paint; that wet mud cannot be sanded and that it had been

sanded when they began their work; and that the mud appeared to be dry by sight and

touch. They also testified that they had wiped the surfaces clean before they painted

over them.



              Mr. Meadors testified that all the products were applied according to

specifications; that the propane heaters were not used during the application of the

primer or the paint, and that the heaters therefore did not add to the humidity in the

house. Mr. Meadors also offered a heating and air conditioning expert to testify that

moisture in the crawl space would migrate upward, through the floor and through the

walls, seeking an outlet to the cooler, dryer air inside the house. The obvious outlets

were vents, light switches, and lights -- anywhere the walls were not sealed.



              At the close of all the proof the chancellor said:

                      “I cannot find by a preponderance of the evidence
              what cause the problem. . . . There are a number of
              reasons why moisture might be preventing the paint from
              adhering. The one which is asserted is that it was put on
              when the mud was dry and the drywall was wet -- excuse
              me -- when the mud was wet and the drywall was wet. I
              can’t find that on a factual basis by the evidence put
              before me.”



              While the chancellor’s ruling may not contain a finding of fact (that the

paint was properly applied) to which the presumption of correctness applies, see Rule

13(d), Tenn. R. App. Proc., if she is correct, her ruling is equally as fatal to the

homeowner’s claim. The plaintiff in a negligence action has the burden of proving by

a preponderance of the evidence that the defendant’s negligence was the probable

cause of the plaintiff’s loss, rather than some other equally probable cause.

Hollingsworth v. Queen Carpet, Inc.,, 827 S.W.2d 306 (Tenn. App. 1991). Where the

facts permit two equally probably inferences to be drawn, one of negligence and the



                                         -6-
other of innocence, the plaintiff has failed to carry the burden of proof. Benson v.

H.G. Hill Stores, Inc., 699 S.W.2d 560 (Tenn. App. 1985).



              We find ourselves in the same dilemma as the chancellor. We cannot

say that it was more probable than not that the paint failed because it was improperly

applied or was applied under conditions that would cause it to fail.



              The only evidence of those facts is the opinion of the plaintiff’s expert.

He, of course, had no first-hand knowledge of the facts (except that he found drywall

dust on one paint sample), so the only thing he could do was give an opinion that what

he saw was consistent with improper application. Arrayed against this opinion is

testimony from the persons involved that the paint was applied properly and under the

proper conditions. In addition, the uncontradicted proof showed that the installation

of the metal roof, along with the destruction of the attic ventilation system, had a major

effect on the ability of the air conditioning system to remove the moisture from inside

the house. The landscaping also covered up vents in the crawl space, and the

sprinkler system caused water to run under the house. Since the first paint failures

occurred around switches, vents, and recessed lights, this fact is consistent with the

testimony that moisture from under the house would most likely emerge in these

areas.



              There is also the probability that some of the paint failures resulted from

a shift in the house structure. The exhibits show that in some places the paint did not

peel or flake off, but it buckled or tore along a seam or joint. This fact is consistent

with the shearing that would occur if the house moved.



              We cannot find that the evidence preponderates in favor of an inference

that the paint was improperly applied.




                                          -7-
                               b. Breach of Contract



              The homeowner argues that Mr. Meadors is liable for a breach of his

promise to see that that work was done in a workmanlike manner. Our discussion in

the previous section bears on this question. If we are correct in that analysis, the

contractor did not breach his contract by allowing the paint to be applied in an

improper manner.



              Nevertheless the homeowner argues that the contractor would be

responsible for the attic ventilation problem. The proof shows, however, that the only

part Mr. Meadors played in that problem was to do the remedial work of installing the

eave vents and the attic fan. There is no evidence that these two projects were not

accomplished in a workmanlike manner. One witness was critical of the size of the

eave vents, but the remedial measures apparently solved the problem of the

excessive attic heat.



              The same can be said about the moisture in the crawl space. The work

that caused that problem was not done under Mr. Meadors’ supervision. He did not

supervise the landscaping work that covered the crawl space vents and caused the

sprinkler system to spray water on the foundation. He did suggest to the owner that

he install an exhaust fan to move the air out of the crawl space. There is no complaint

about the workmanship in installing the fan.



              The problem of the house shifting or settling falls closer to Mr. Meadors’

area of responsibility. He did oversee the removal of the load bearing walls and he

installed the beam that allowed that wall to be removed. However, Mr. Meadors is not

an architect nor a structural engineer. He supplied the data concerning the span and

the type of roof to a vendor, and the vendor specified a laminated beam of a certain

size for the project. Perhaps Mr. Meadors should have foreseen the problem and


                                         -8-
advised the homeowner against it. But there is simply no proof whatsoever on that

point. Nor is there any proof of the severity of the settling or shifting that would be

required to produce some of the paint failures shown in the exhibits. Even a slight

movement within the acceptable range of flexure for the beam may have caused the

problem. We cannot conclude that the installation of the beam fell below the standard

of good workmanship.



              We affirm the judgment of the court below. The cause is remanded to

the Chancery Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellant.



                                          _________________________________
                                          BEN H. CANTRELL,
                                          PRESIDING JUDGE, M.S.


CONCUR:


_____________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________
WILLIAM B. CAIN, JUDGE




                                         -9-
