                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 April 07, 2015 Session


  DONNIE G. GOODWIN, ET AL. v. JIM BALE CONSTRUCTION, LLC

                  Appeal from the Circuit Court for Sumner County
                   No. 2011CV506       Jane W. Wheatcraft, Judge




                 No. M2014-00919-COA-R3-CV – Filed June 18, 2015


This appeal arises from a construction dispute. Appellants/Homeowners brought suit
against Appellee/Builder. Appellants claim that Appellee built their home on uncontrolled
fill material, which caused excessive cracking in the garage and the driveway. Appellee
contends that Appellants‟ home was built on virgin soil, rather than fill material as alleged
by Appellants. Both sides proffered expert testimony to prove the cause of the cracks. The
trial court found Appellee‟s expert credible and concluded that the home was built on
virgin soil. Because the evidence does not preponderate against the trial court‟s finding on
this issue, we affirm this finding. However, we vacate the trial court‟s award of
discretionary costs to Appellees in the amount of $9,210.60 and remand for
reconsideration in light of our opinion.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
            Affirmed in Part, Vacated in Part, and Remanded


KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Kirk L. Clements, Goodlettsville, Tennessee, for the Appellants, Donnie G. Goodwin and
Julie Goodwin.

Ronald B. Buchanan, Hendersonville, Tennessee, for the Appellee, Jim Bale Construction,
LLC.


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                                               OPINION

                                            I. Background

       Jim Bale Construction, LLC (“Bale” or “Appellee”) constructed homes on three lots
in Goodlettsville, Tennessee. On April 30, 2008, Donnie Goodwin purchased one of the
homes, which is located at 1015 Emily Drive (the “Home”). Mr. Goodwin paid $321,000
for the Home and later added his wife, Julie Goodwin (together with Mr. Goodwin,
“Appellants”), to the deed for the Home.1

       The instant lawsuit arose after the Appellants discovered that the Home‟s concrete
driveway, porch, and garage floor were cracking. Appellants‟ neighbor, Dr. Ruth Haley,
informed Appellants that she witnessed the construction of the Home and watched
“truckloads of fill brought into the property.” The Appellants subsequently hired
Christopher Beaver, an expert geotechnical engineer, to investigate the cause of the
cracking. 2 Mr. Beaver opined that “the house was built on uncontrolled fill and the
instability of the soil, particularly on the southeast side of the home is the reason for the
excessive cracking of the concrete in the garage and driveway.” Relying on their
neighbor‟s statement and Mr. Beaver‟s opinion, the Appellants filed suit against Bale in the
General Sessions Court for Sumner County, alleging breach of contract, breach of
warranty, and intentional and reckless misrepresentation. On March 4, 2011, the case was
transferred from General Sessions Court to Circuit Court. On March 22, 2012, the trial
court granted Appellants‟ motion to amend their complaint. Appellants filed their
amended complaint the same day, alleging breach of contract, breach of warranty, and
intentional and reckless misrepresentation.

       The trial court held a bench trial on March 17th, 21st, and April 15th, 2014. On
April 17, 2014, the trial court entered judgment in favor of Bale, finding that the Appellants
had not “carried the burden” of proving any of their claims. Specifically, the trial court
found that, given the “strong proof in the record,” the Home was, in fact, built on virgin
soil. The trial court also found that the Home “passed codes at every level of construction
and was built to the standard of the construction industry….” On May 8, 2014, Bale filed a
motion for discretionary costs in the amount of $9,210.60. On June 4, 2014, the trial court
granted the motion over Appellants‟ objection.
        1
           Before trial, Bale made an oral motion to dismiss Mrs. Goodwin from the lawsuit. On May 2,
2014, the trial court granted the motion. Appellants have appealed Mrs. Goodwin‟s dismissal from the
lawsuit. Because we conclude that the trial court correctly found that Bale was not liable for any breach of
contract or warranty, and was not guilty of misrepresentation, the issue of Mrs. Goodwin‟s dismissal from
the case is pretermitted.
         2
           The Trial Court‟s Order referred to Appellants‟ expert as “Chris Brewer,” however, the record
establishes that the Appellants‟ expert was Chris Beaver.
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                                         II. Issues

       Appellants raise several issues for review. However, we perceive that there are two
dispositive issues, which we state as follows:

       1. Whether the trial court erred in finding that the Home was constructed on virgin
          soil.

       2. Whether the trial court erred in awarding Bale discretionary costs in the amount
          of $9,210.60.

                                 III. Standard of Review

       This case was tried without a jury. Accordingly, we review the findings of fact made
by the trial court de novo, with a presumption of correctness unless the preponderance of
the evidence is to the contrary. Tenn. R. App. P. 13(d). The trial court‟s conclusions of law,
however, are reviewed de novo and “are accorded no presumption of correctness.”
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).
Furthermore, “[w]hen credibility and weight to be given testimony are at issue,
considerable deference must be afforded the trial court when the trial judge had the
opportunity to observe the witness' demeanor and to hear in-court testimony.” Mitchell v.
Fayetteville Pub. Utils., 368 S.W.3d 442, 447 (Tenn. 2012).
                                        IV. Analysis

                              A. Preponderance of Evidence

        As discussed above, Appellants contend that the cracks in parts of the Home
resulted from Bale‟s failure to build the Home on stable, virgin soil as required by the
applicable codes and standards of the construction industry. Appellants further argue that
Mr. Beaver provided both reliable, unrefuted expert testimony, and physical evidence to
support his finding that fill material was used in the foundation of the Home.
Consequently, based upon Mr. Beaver‟s testimony and the physical evidence presented at
trial, Appellants argue that the preponderance of the evidence is against the trial court‟s
finding that the Home was built on virgin soil.

       The Appellants essentially argue that the trial court should have relied on their
experts‟ testimony instead of the Appellee‟s expert‟s testimony. “„Expert opinions are not
ordinarily conclusive in the sense that they must be accepted as true on the subject of their
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testimony, but are generally regarded as purely advisory in character….‟” Cocke County
Bd. of Highway Com’rs v. Newport Utilities Bd., 690 S.W.2d 231, 235 (Tenn. 1985)
(quoting 31 AM.JUR.2D Expert and Opinion Evidence § 138 (1967)). “[T]he trier of fact
is not bound to accept an expert witness‟s testimony as true, and it may reject any expert
testimony that it finds to be inconsistent with the credited evidence or is otherwise
unreasonable.” Roach v. Dixie Gas Co., 371 S.W.3d 127, 150 (Tenn. Ct. App. 2011).
“In cases where opposing expert evidence is offered, and in cases where there is no
opposing expert evidence, the trier of fact „is still bound to decide the issue upon its fair
judgment, assisted by the expert testimony.‟” State ex rel. Summers v. Whetsell, No.
E2005-01426-COA-R3-CV, 2006 WL 1408403, at *2, (Tenn. Ct. App. May 22, 2006)
(quoting Gibson v. Ferguson, 562 S.W.2d 188, 190 (Tenn. 1976)). “„Moreover it is
within the discretion of the trial judge to conclude that the opinion of certain experts should
be accepted over that of other experts and that it contains the more probable explanation.‟”
Id. (quoting Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-77 (Tenn. 1983)).

       Although the Appellants argue that Mr. Beaver‟s testimony was reliable and
unrefuted, we note that the trial court specifically found that “from strong proof in the
record,” the expert opinions expressed by Mr. Beaver were “not supported by the record as
a whole.” The trial court further found that Mr. Beaver‟s sample test results were “suspect”
because “all but one were outside the footprint of the house,” and “several were taken from
cores that had been previously dug and were therefore unreliable.” We reiterate this
Court‟s long-established rule that “the trial judge is in a better position to weigh and
evaluate the credibility of the witnesses who testify,” Randolph v. Randolph, 937 S.W.2d
815, 819 (Tenn. Ct. App. 1996), and “we give great weight to the trial judge's findings on
the issues involving credibility of witnesses.” Id. Because the trial court found Mr.
Beaver‟s expert testimony to be “suspect,” and accepted the expert testimony of Appellee‟s
expert over that of Mr. Beaver, the proof in this case does not preponderate against the trial
court‟s finding concerning Bale‟s alleged use of fill material.

       The Appellants‟ only other witness at trial was Dr. Ruth Haley, who, as noted
above, testified that she watched “truckloads” of fill being brought onto the Appellants‟
property. However, at trial, Dr. Haley stated that she had never performed any
measurements of the Appellants‟ Home, and that she was uncertain where the Home was
constructed in relation to where the fill was placed on the property. Importantly, and as we
discuss further infra, the use of fill per se does not constitute negligence on Bale‟s part.
Instead, the issue here is whether Bale used fill in the Home‟s foundation. Dr. Haley‟s
testimony does not identify where the fill was placed on the lot, and, as such, her testimony
is not helpful on the dispositive question of whether fill was used in the Home‟s
foundation.

       Appellants contend that the testimony of Bale‟s witnesses is unreliable and biased.
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However, the trial court made no such finding. Daniel Terranova, a geotechnical engineer,
who testified for Bale, opined that the footings of the Home were all in natural soil, not fill.
Mr. Terranova testified that after he performed core samplings in the Appellants‟ garage,
he returned the materials to the holes from which they came. In response to how test results
can show fill and not natural material, Mr. Terranova testified that when virgin soil is taken
from a hole and later replaced, the compaction test will be similar to that of fill material.
The record indicates that Mr. Terranova performed his core samplings before Mr. Beaver
performed compaction tests in the same area. Bale‟s expert, Robert Warren, a structural
engineer, testified that cracks in concrete are “typical” and that “the curing of the concrete
caused the cracks not shrink/swell properties of the soil.”

        Appellants also contend that Bale failed to construct the Home according to
applicable codes and standards of the construction industry. Larry DiOrio, the
Goodlettsville Code Inspector, testified that the Home passed all inspections during
construction and that, at the time of construction, the City of Goodlettsville had no codes
that prohibited the use of fill material in the construction of a driveway, or any area other
than the Home‟s footprint. Brad Teples, the footing subcontractor, testified that there was
no fill material, nor soft spots “at all” in the Home, and that there was nothing unusual
about the Home‟s footings.3 Mr. Teples also testified that the footings installed in the
Home exceeded the City‟s building code requirements. According to Mr. Teples, the code
requires 18-inch wide footings and 6 inches of concrete; Bale installed footings 24 inches
wide with two steel rebars and 10 inches of concrete.

       The trial court found that “the proof showed that this home passed code at every
level of construction and was built to the standard of the construction industry in this area.”
From our review of the record, there is no evidence to support Appellants‟ contentions that
the Home was built either on fill or was built in violation of the building codes of the City
of Goodlettsville. Accordingly, we conclude that the evidence does not preponderate
against the trial court‟s finding that Bale did not breach any contract, warranty, industry
standard, or code in building the Home.

                                     B. Discretionary Costs

       Appellants next argue that the trial court abused its discretion in awarding
discretionary costs for all the fees charged by Bale‟s expert witnesses. Specifically,
Appellants argue that the trial court awarded fees relating to preparation for trial, travel
time and travel expenses in contravention of Tennessee Rule of Civil Procedure 54.04(2).4

       3
           The Trial Court‟s Order referred to Appellee‟s expert as “Brad Teeples,” however, the record
establishes that the Appellee‟s expert was Brad Teples.
         4
           Tenn. R. Civ. P. 54.04(2) provides, in relevant part:
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Appellants argue that this award constitutes an abuse of discretion. We agree.

    “Tenn. R. Civ. P. 54.04(2) empowers the trial courts to award the prevailing party
certain litigation expenses.” Owens v. Owens, 241 S.W.3d 478, 496 (Tenn. Ct. App. 2007).
“Awards of discretionary costs are, naturally, decisions that lie within the sound discretion
of the trial court.” Id. “The party who takes issue on appeal with a trial court's decision
regarding discretionary costs has the burden of showing how the trial court abused its
discretion.” Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 36 (Tenn. Ct. App.
2002). “An abuse of discretion occurs when the court either applies an incorrect legal
standard or reaches a clearly unreasonable decision, thereby causing an injustice to the
aggrieved party.” Woodlawn Memorial Park, Inc. v. Keith, 70 S.W.3d 691, 698 (Tenn.
2002). “[T]ravel expenses are not allowable discretionary costs.” Tenn. R. Civ. P.
54.04(2). This Court has also held that trial preparation expenses are not contemplated in
Rule 54.04(2). See Trundle v. Park, 210 S.W.3d 575 (Tenn. Ct. App. 2006).

   Here, the itemized fee statement provides:5

       1. Trine Mitchell, court reporter - $812.75
       2. Beaver Engineering, deposition fee- $782.40
       3. Julie Richetto, court reporter- $810.00
       4. Costs to file subpoena- $6.00
       5. Costs to file subpoena- $12.00
       6. Elite Reporting Services- $187.50
       7. Warren Engineering, Expert Witness- $5,973.75
       8. Terra-Nova Engineering, Expert Witness- $1,050.00
       9. Elite Reporting Services- $295.20
       10. Elite Reporting Services- $93.75

       Further, an invoice statement in item 7 shows that Warren Engineering, Mr.
Beaver‟s engineering firm, charged: (1) $116.25 for “Review [of] Bale Complaint”; (2)
$465.00 for “Site Visit (including travel)”; (3) $426.25 for “Review [of] Terranova report
and EMC”; (4) $1,046.25 for its “Research, review, and report preparation”; and (5)


       Costs not included in the bill of costs prepared by the clerk are allowable only in the court's
       discretion. Discretionary costs allowable are: reasonable and necessary court reporter
       expenses for depositions or trials, reasonable and necessary expert witness fees for
       depositions (or stipulated reports) and for trials, reasonable and necessary interpreter fees
       not paid pursuant to Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel
       expenses are not allowable discretionary costs.
       5
           The itemized statement and invoice statements were made part of the trial court record.
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$232.50 for “Review [of] Beaver Report.” The invoice statement also shows that Warren
Engineering charged for Mr. Beaver‟s “court appearance (including travel)” on March 17th
and March 21st, 2014.

      In item 8 of the invoice statement, Terranova Engineering charged $300.00 for its
“Office meeting with Mr. Ron Buchanan,” and $150.00 for “File Review (Photographs).”
Clearly, certain portions of the requested discretionary fees include charges for travel
expenses, travel time and trial preparation. Therefore, the trial court‟s grant of Bale‟s
motion for discretionary costs, insofar as it reimburses Bale for travel expenses, travel
time, and trial preparation, is in direct contravention of Rule 54.04(2). Accordingly, we
conclude that the trial court erred in awarding discretionary costs in the full amount
requested, i.e., $9,210.60. We vacate the award of discretionary costs and remand for entry
of judgment in favor of Bale for only those portions of its costs that are allowable under
Rule 54.04(2).

                                     V. Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court concerning
Bale‟s liability. We vacate the award of $9,210.60 in discretionary costs. The case is
remanded for such further proceedings as may be necessary and are consistent with the
opinion, including, but not limited to, recalculation of discretionary costs. Costs of the
appeal are assessed to the Appellants, Donnie Goodwin and Julie Goodwin and their
surety, for all of which execution may issue if necessary.



                                                _________________________________
                                                KENNY ARMSTRONG, JUDGE




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