                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                              SEPTEMBER 18, 2000 Session

        STANLEY J. KLINE, ET AL. v. WILLIAM I. BENEFIEL, ET AL.

                 Direct Appeal from the Circuit Court for Shelby County
       No. 59043 T.D.; The Honorable Jon Kerry Blackwood, Judge, by Designation



                   No. W1999-00918-COA-R3-CV - Filed January 9, 2001


This case arises from a home construction contract entered into by the Appellants and the Appellees.
The Appellants filed a complaint against the Appellees in the Circuit Court of Shelby County for
breach of contract. The Appellees filed a counter-complaint for breach of contract and unjust
enrichment. The Appellants filed an amended complaint for violations of the Tennessee Consumer
Protection Act. The trial court dismissed the Appellees’ counter-complaint and found in favor of
the Appellees as to the Appellants’ complaint.
        The Appellants appeal from the order of the Circuit Court of Shelby County, finding in favor
of the Appellees. For the reasons stated herein, we affirm the trial court’s decision.

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

ALAN E. HIGHERS , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD , J., joined.

David A. Siegel, for Appellants

Ralph D. Golden, for Appellees

                                            OPINION

                                I. Facts and Procedural History

        On September 17, 1991, the Appellants, Stanley J. Kline and Sandra C. Kline (“the Klines”)
entered into a home construction contract with the Appellees, William L. Benefiel (“Mr. Benefiel”)
and Robert Benefiel, Individually and d/b/a Benefiel Homes, a Tennessee General Partnership
(“Benefiel”). The Klines originally had contracted with another home builder, but this contract was
terminated after problems with the lot arose. In their search for a new builder, the Klines
interviewed Mr. Benefiel and read his advertisement brochure. The brochure states that “[Mr.
Benefiel] became an engineer with several leading firms and eventually owned his own
engineering/surveying firms . . . .” Mr. Kline claims that Mr. Benefiel also orally represented that
he was an engineer and could handle the Klines’ structural concerns.
         Mr. Benefiel is a home builder and holds a general contractor’s license. He states that he
worked as a draftsman for several engineering firms; however, he is not an engineer. Mr. Benefiel
insists that he never told the author of the advertisement brochure that he was an engineer. Mr.
Benefiel was aware that the brochure stated that he was an engineer, but he did not think it was
important to correct the brochure since he was not working in the engineering field. Mr. Benefiel
also asserts that he never orally represented to the Klines that he was an engineer. Mr. Benefiel
claims that his wife told Mrs. Kline that Mr. Benefiel was not an engineer. Mrs. Kline denies this
conversation took place. The Klines claim they were searching for a builder with “special expertise”
and never would have contracted with Mr. Benefiel had they known he was not an engineer and had
misrepresented himself as such. Mr. Benefiel argues that the brochure is not the cause of any injury
the Klines may have incurred.

          Construction on the home began in the fall of 1991. Generally, Mrs. Kline was at the house
daily. Mr. Benefiel claims it was difficult to work because Mrs. Kline often spoke with the
subcontractors, and she was constantly making changes. Mrs. Kline denies that she bothered or
made demands on Mr. Benefiel and the subcontractors. The Klines moved into the house on April
24, 1992. This move-in date was beyond Mr. Benefiel’s sixth month deadline to have substantially
completed work on the house. Section two of the contract imposes a penalty upon Mr. Benefiel for
failure to meet the construction deadline.1 Mr. Benefiel cites bad weather, numerous changes made
by the Klines, and general problems in constructing the house for the delay. The Klines argue that
they did not delay Mr. Benefiel, and bad weather and problems in constructing the house had very
little to do with the delay. Mr. Benefiel submitted to the Klines a builder fee for $3,727.24 due as
of June 10, 1992, but the Klines never paid the bill.

        The Klines state that they informed Mr. Benefiel of defects both prior to and after they
moved in the house. They claim that Mr. Benefiel refused to correct any of the defects. In August,
1992, the Klines sent Mr. Benefiel a letter outlining sixty-five defects in the house. Mr. Benefiel
invoked section six of the contract which provided for a third party to inspect the house and make
binding determinations on the parties as to what items were defective.2 Mr. Benefiel selected Donald


       1
           The pena lty clause of section two of the contract states:
                  Owner agrees that the maxim um liability amount that Contractor
                  shall be held liable for and penalized for if he takes longer than the
                  approved length of time shall be calculated at fifty dollars ($50.00)
                  per day or no m ore than te n percen t (10%) of the total B uilders Fee ,
                  for not being able to complete work on time.


       2
           Section six , paragrap h two o f the contra ct states:
                   If owne r and co ntractor sh ould disa gree ov er com pleted w ork that
                   owner deems defective, the contractor has the right to have a third
                   party that is mutually respected and approved by both owner and
                   contractor and qualified in the particular field that is in question to
                   make determ inations of what is go od and acceptab le and w hat shall
                                                                                              (continu ed...)

                                                            -2-
Merritt (“Mr. Merritt”) to inspect the house. Mr. Merritt inspected the house on October 22, 1992.
Mr. Merritt found approximately fifteen of the sixty-five items to be defective.

         Both the Klines and Mr. Benefiel state that they agreed to be bound by Mr. Merritt’s report
pursuant to section six of the contract. The Klines argue that Mr. Benefiel breached the contract
because he refused to comply with Mr. Merritt’s report. One particular point of contention between
the Klines and Mr. Benefiel is that Mr. Merritt’s report stated that the Mexican tile in the house was
defective. Mr. Benefiel argues that he should not be responsible for repairing the Mexican tile
because the Klines directly contracted for the Mexican tile with Lynn & Adams Tile Company
(“Lynn & Adams”). Section nine of the contract states that Mr. Benefiel is responsible only for the
work of subcontractors with whom he contracts.3 Mr. Benefiel gave the Klines the name of a tile
installer that he used as a subcontractor. The Klines decided not to use this subcontractor, and they
looked for another tile installer. Mrs. Kline contacted Bob Lynn (“Mr. Lynn”), a tile installer with
Lynn & Adams. Mr. Lynn ordered the tile, and his partner, Hugh Adams (“Mr. Adams”) installed
the Mexican tile in the house. Mr. Lynn stated that when he began speaking with Mrs. Kline about
installing the tile he did not know Mr. Benefiel was involved in the job. Mr. Benefiel claims that
he did not speak to Mr. Lynn before the tile work began.

        Mrs. Kline was not satisfied with the Mexican tile. She held two meetings with Mr. Lynn
to discuss her complaints with the Mexican tile. Mr. Lynn stated that Mr. Benefiel attended both of
these meetings. Whitney Cook (“Ms. Cook”), an expert in refinishing Mexican tile, was brought in
to restrip and reseal the tile. Mr. Lynn agreed to pay Ms. Cook for her work if Mrs. Kline was
satisfied. After Ms. Cook finished the work, Mrs. Kline stated she would “have to live with it,” and
Mr. Lynn paid Ms. Cook. Lynn & Adams submitted the bills for the Mexican tile to Mr. Benefiel
who submitted them to the Klines for payment. On other items for which the Klines directly
contracted, however, Mr. Benefiel did not submit a check to the Klines. Mr. Benefiel stated that he
thought he was responsible for supervising the Mexican tile work. He claims he did not realize that
under the contract he did not have supervisory responsibility over subcontractors with whom the
Klines directly contracted.



       2
           (...continued)
                    be deemed to be defective. Both parties shall be bound to accept the
                    third parties’ recom mend ations as fina l without a ny legal o r court
                    litigation.


       3
           Section nine, para graph one of the contract states:
                   The Con tractor be shall [sic] responsible fo r only the sub co ntractors
                   that he contracts for the performance of work, and not be responsible
                   for any Subcontractors that the Owner m ay contract with. The contractor
                   shall super vise and d irect the W ork, using his best skills an d attention ,
                   using standard tried and true construction practices, and he shall be solely
                   responsible for all delegating and scheduling construction.



                                                            -3-
          From August until December, 1992, the Klines refused to allow Mr. Benefiel and the
subcontractors back into the house to make repairs. After negotiations between Benefiel’s attorney
and the Klines’ attorney, the Klines agreed to allow Mr. Benefiel and the subcontractors to begin
repairs. Repairs began on January 27, 1993, but very little work was accomplished. Mr. Benefiel
states that the Klines frustrated the repairs by making demands as to the type of equipment that had
to be used. The Klines objected to the type of drop cloth, flood lamp, and ladder used and insisted
that Mr. Benefiel and the subcontractors leave the house until they obtained the proper equipment.
The Klines assert that Mr. Benefiel was unprepared to make the repairs because he was aware of the
equipment that they required him and the subcontractors to use. The Klines claim that Mr. Benefiel
and the subcontractors failed to show up at scheduled times. Mrs. Kline also contends that Mr.
Benefiel was angry and often yelled at her. Finally, on February 4, 1993, Mr. Benefiel and Mrs.
Kline had a confrontation. Mr. Benefiel claims that Mrs. Kline grabbed for and wrestled him for his
tape recorder. Mrs. Kline denies this occurred. Mr. Benefiel and the subcontractors left the house
and never went back. The Klines’ attorney stated that the work could not proceed unless Mr.
Benefiel agreed not to visit the house except when Mr. Kline was present. Mr. Benefiel’s attorney
wrote letters to the Klines’ attorney as to when Mr. Benefiel could continue the repairs, provided
Mrs. Kline would not be present. Mr. Benefiel’s attorney received no response from these letters.

         The Klines hired a general contractor, Jerry Cobb (“Mr. Cobb”), to place a monetary amount
on the defects identified in Mr. Merritt’s report. Mr. Cobb reported the cost to correct the defects
to be $34,200.00 as of April 17, 1993. The Klines later requested Mr. Cobb to update the cost for
inflation. On March 31, 1998, Mr. Cobb reported the cost to be $45,476.00 due to an increase in
costs and a shortage of labor. Mr. Benefiel argues that the measure of damages should be the cost
at the time the defects should have been repaired.

        Benefiel’s attorney hired a general contractor, Phillip Bryce (“Mr. Bryce”), to place a
monetary amount on the defects identified in Mr. Merritt’s report. Mr. Bryce reported the cost to
correct the defects to be $2,570.00. This amount did not include the cost to repair the Mexican tile.
The Klines argue that this amount should not be accepted because Mr. Benefiel was attempting to
change Mr. Merritt’s report by hiring Mr. Bryce to determine what repairs were needed. Mr.
Benefiel contends that Mr. Bryce did not make determinations as to what repairs were needed but
simply placed a monetary amount on the defects. Mr. Bryce stated that part of his responsibility was
to determine which repairs were needed.

        On January 18, 1994, the Klines filed their initial complaint against Benefiel, alleging breach
of contract and seeking compensatory damages and attorney’s fees. Benefiel filed a counter-
complaint on May 10, 1994, alleging breach of contract and unjust enrichment. In April, 1997, the
Klines filed an amended complaint, alleging, in addition to the initial complaint, violations of the
Tennessee Consumer Protection Act and seeking treble damages. The trial on the amended
complaint was held on April 15, 1998. The trial court entered judgment in favor of Benefiel.4 The
trial court noted that the testimony of the witnesses was highly controverted which required the trial


       4
           The trial court dismissed Benefiel’s counter-complaint by order entered May 22, 2000.

                                                        -4-
court to weigh the relative credibility of the witnesses. The trial court found that (1) the
advertisement brochure was violative of the Tennessee Consumer Protection Act, but the Klines
suffered no damage as a result; (2) the reasonable cost to repair the defects as determined by the
arbiter was $2,570.00; (3) Benefiel was not responsible for any defects concerning the Mexican tile
because the Klines directly contracted for the Mexican tile; and (4) the Klines failed to mitigate their
damages. This appeal followed.


                                      II. Standard of Review

         The standard of review for a non-jury case is de novo upon the record. See Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the
trial court's factual findings, unless the preponderance of the evidence is otherwise. Tenn. R. App.
P. Rule 13(d). For issues of law, the standard of review is de novo, with no presumption of
correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).


                                       III. Law and Analysis

       The Klines raise the following issues on appeal for our review:
1.     Whether the trial court erred in finding that Mr. Benefiel was more credible than the
Klines after concluding that Benefiel’s brochure was false, misleading, and violative of the
Tennessee Consumer Protection Act.
2.     Whether the trial court erred in finding that the Mexican tile subcontractor contracted
with the Klines rather than Benefiel.
3.     Whether the trial court erred in concluding that the Klines’ damages were not caused by
Benefiel.
4.     Whether the trial court erred in allowing the testimony of Benefiel’s expert, Mr. Bryce.
5.     Whether the trial court erred in finding that the Klines failed to mitigate their damages.
6.     Whether the trial court erred in failing to award attorney’s fees.
We will examine each of these issues in turn.

                           Credibility and the Advertisement Brochure

         The first issue presented for our review is whether the trial court erred in finding that Mr.
Benefiel was more credible than the Klines after concluding that Benefiel’s brochure was false,
misleading, and violative of the Tennessee Consumer Protection Act. The trial court noted in its
order that there were conflicts in the testimony of the witnesses. The trial court stated that, as a
result, it weighed the relative credibility of the witnesses. When the resolution of the issues in a case
depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the
witnesses in their manner and demeanor while testifying is in a far better position than the appellate
court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker
v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). “[A]ppellate courts will not re-evaluate


                                                  -5-
a trial judge’s assessment of witness credibility absent clear and convincing evidence to the
contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

        The Klines argue that Mr. Benefiel was the least credible of all the witnesses because the trial
court found that he distributed false and misleading advertisement brochures. The trial court found,
however, that the Klines’ damages were not caused by Mr. Benefiel’s advertisement brochures.
After taking into account the facts surrounding the advertisement brochure, the trial court still found
Mr. Benefiel to be a more credible witness than the Klines. In determining the relative credibility
of the witnesses, the trial court stated that it “assessed their manner and demeanor on the witness
stand, the consistency of their statements, and the lucidity of their positions” in arriving at its
findings and conclusions. After a review of the record, we are unable to find evidence sufficient to
disturb the trial court’s findings of credibility. The trial court found Mr. Benefiel’s testimony to be
more credible than the Klines’ testimony, and we adhere to that assessment due to the absence of
clear and convincing proof to the contrary.


                                            Mexican Tile

         The second issue presented for our review is whether the trial court erred in finding that the
Mexican tile subcontractor contracted with the Klines rather than Benefiel. The trial court found that
Benefiel was not responsible for the cost of repair of the Mexican tile because the Klines directly
contracted with the Mexican tile subcontractor. The testimony at trial was undisputed that Mrs.
Kline contacted Mr. Lynn about installing tile in the house after she rejected Mr. Benefiel’s
suggestion for a Mexican tile subcontractor. The testimony at trial was controverted, however, as
to whether the Klines or Benefiel directly contracted with the Mexican tile subcontractor. Mr.
Benefiel claims that he did not speak to Mr. Lynn before the Mexican tile work began. Mr. Lynn
testified that when Mrs. Kline first contacted him about installing tile he did not know Mr. Benefiel
was involved in the job. The Klines point to the fact that Lynn & Adams submitted the bills for the
Mexican tile to Mr. Benefiel who submitted them to the Klines for payment. The Klines also claim
that since Mr. Benefiel stated he was responsible for supervising the Mexican tile work that he
directly contracted with the Mexican tile subcontractor. Mr. Benefiel asserts he did not realize under
the contract that he did not have supervisory responsibility over subcontractors with whom the
Klines directly contracted. The trial court stated that because the testimony of the witnesses was
highly controverted, it weighed the relative credibility of the witnesses in arriving at its findings and
conclusions. As stated above, the trial court found Mr. Benefiel to be a more credible witness than
the Klines, and without clear and convincing evidence to the contrary, we decline to disturb the trial
court’s findings as to credibility. Our review of the record, taking into account the trial court's
determination of the credibility of the witnesses, leads us to conclude the evidence does not
preponderate against the trial court's finding that the Klines directly contracted with the Mexican tile
subcontractor.


                                               Damages


                                                  -6-
         The third issue presented for our review is whether the trial court erred in concluding that the
Klines’ damages were not caused by Benefiel. The trial court found that the Klines were not
damaged as a result of the advertisement brochure. The trial court stated that the defects in the house
were not of a nature requiring the expertise of an engineer. The testimony at trial was controverted
as to whether the Klines relied upon Mr. Benefiel’s representations in entering into the contract. The
Klines argue that they relied upon Mr. Benefiel’s representations that he was an engineer, they were
induced to sign the contract because of the representations, and they would not have contracted with
Mr. Benefiel had they known the representations were false. The Klines claim that, in addition to
the advertisement brochure, Mr. Benefiel orally represented to them that he was an engineer and
could handle their structural concerns. Mr. Benefiel denies that he made such oral representations
to the Klines. He claims that he never discussed with the Klines whether he was an engineer. Mr.
Benefiel asserts that his wife told Mrs. Kline that he was not an engineer. Mrs. Kline denies this
conversation took place. The trial court stated that because the testimony of the witnesses was highly
controverted, it weighed the relative credibility of the witnesses in arriving at its findings and
conclusions. Again, the trial court found Mr. Benefiel to be a more credible witness than the Klines,
and without clear and convincing evidence to the contrary we decline to disturb the trial court’s
findings as to credibility. Our review of the record, taking into account the trial court's determination
of the credibility of the witnesses, leads us to conclude the evidence does not preponderate against
the trial court's finding that the Klines’ damages were not caused by Benefiel.


                                   Testimony of Benefiel’s Expert, Mr. Bryce

       The fourth issue presented for our review is whether the trial court erred in allowing the
testimony of Benefiel’s expert, Mr. Bryce, for two reasons: (1) Mr. Bryce’s testimony was based on
inadmissible hearsay; and (2) Mr. Bryce’s testimony and report sought to alter the findings of Mr.
Merritt’s report in violation of section six of the contract. We examine each of these arguments in
turn.

        Mr. Bryce testified at the trial that he consulted with a subcontractor to ascertain the cost to
correct drywall defects. The Klines argue that the trial court erred in allowing Mr. Bryce’s testimony
because this was inadmissible hearsay. We disagree. Under evidentiary rule 703, “an expert witness
may base an opinion upon clearly inadmissible hearsay, if the type of hearsay is one that would be
reasonably relied upon by experts in that situation.” State v. Kennedy, 7 S.W.3d 58, 66 (Tenn. Crim.
App. 1999) (citing Tenn. R. Evid. 703).5 Clearly, the trial court considered Mr. Bryce to be an expert


        5
            Rule 70 3 states:
                    Bases of opinion testimony by experts – The facts or data in the
                    particular case upon which an expert bases an opinion or inference
                    may be those perceived by or made known to the expert at or before
                    the hearing. If of a type reasonably relied upon by experts in the
                    particular fie ld in form ing opin ions or infe rences up on the su bject,
                    the facts or d ata need n ot be adm issible in evid ence. Th e court sh all
                                                                                                  (continu ed...)

                                                              -7-
witness. The trial court referred to Mr. Bryce as “[t]he defendant’s expert contractor.” Under rule
703, it was permissible for the trial court to allow such testimony if this matter was of a type
reasonably relied upon by other experts in that same field. We find that Mr. Bryce’s reliance on a
drywall subcontractor’s knowledge as to the cost to correct drywall defects was a matter of the type
reasonably relied upon by other general contractor experts. Thus, Mr. Bryce’s testimony was
admissible under rule 703.

         The Klines also argue that the trial court erred in allowing Mr. Bryce’s testimony because
the testimony sought to alter the findings of Mr. Merritt’s report in direct violation of section six of
the contract. Decisions regarding the admission or exclusion of expert testimony are discretionary.
 See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997); Lazy Seven Coal Sales,
Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 406-07 (Tenn. 1991); Smith County v. Eatherly, 820
S.W.2d 366, 368 (Tenn. Ct. App. 1991). Accordingly, we will not overturn a trial court's decision
either to admit or to exclude expert testimony unless it was arbitrary or an abuse of discretion. See
Buchanan v. Harris, 902 S.W.2d 941, 945 (Tenn. Ct. App. 1995). “An abuse of discretion exists
when the reviewing court is firmly convinced that the lower court has made a mistake in that it
affirmatively appears that the lower court's decision has no basis in law or in fact and is therefore
arbitrary, illogical, or unconscionable.” State v. Brown & Williamson Tobacco Corp., 18 S.W.3d
186, 191 (Tenn. 2000) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).

        Mr. Merritt’s report set out the defects in the Klines’ house but did not make findings as to
the cost to repair the defects. The trial court allowed expert testimony from the Klines’ witness, Mr.
Cobb, as to the cost to repair the defects. Over the Klines’ objection, the trial court allowed
testimony from Benefiel’s witness, Mr. Bryce, on the specific issue of the cost to repair the defects.
The trial court then had the opportunity to assess the relative credibility of both expert witnesses and
determine which expert’s findings to adopt after taking into consideration all the evidence. We find
it was neither arbitrary nor an abuse of the trial court’s discretion to allow expert testimony from Mr.
Bryce on the cost to repair the defects.




                                            Mitigation of Damages

        The fifth issue presented for our review is whether the trial court erred in finding that the
Klines failed to mitigate their damages. The doctrine of mitigation of damages imposes upon an
injured party a duty to exercise reasonable care and diligence in attempting to avoid loss or minimize
damages after an injury has been inflicted. See Cook & Nichols, Inc. v. Peat, Marwick, Mitchell &


         5
         (...continued)
                  disallow testimony in the form of an opinion or inference if the
                  underly ing facts or data indica te lack of tru stworthin ess.
Tenn. R. Evid. 703.

                                                         -8-
Co., 480 S.W.2d 542, 545 (Tenn. Ct. App. 1971); Gilson v. Gillia, 321 S.W.2d 855, 865 (Tenn. Ct.
App. 1958). To the extent that an injured party fails to exercise reasonable care and diligence, he
cannot recover his damages. See id. “The critical factor in determining fulfillment of a plaintiff’s
duty to mitigate is whether the method which he employed to avoid consequential injury was
reasonable under the circumstances existing at the time.” Action Ads, Inc. v. William B. Tanner Co.,
Inc., 592 S.W.2d 572, 575 (Tenn. Ct. App. 1979) (quoting Tampa Electric Co. v. Nashville Coal Co.,
214 F. Supp. 647, 652 (M.D. Tenn. 1963)). An injured party is not required to mitigate damages if
this would be unduly burdensome or impossible. See Cummins v. Brodie, 667 S.W.2d 759, 766
(Tenn. Ct. App. 1983).

        The trial court found that Mr. Benefiel was willing to make repairs on the house, but the
Klines’ conduct was “unreasonable and unnecessary, and prevented the defendant from effectuating
these repairs.” The trial court further found that the Klines would have suffered no damages had
they allowed Mr. Benefiel the opportunity to make the necessary repairs. The trial court denied any
recovery to the Klines for the cost to repair the defects due to the failure to mitigate their damages.

        Both the Klines and Mr. Benefiel testified that from August until December, 1992, the Klines
refused to allow Mr. Benefiel or the subcontractors into the house to make repairs. After
negotiations between the Klines’ attorney and Benefiel’s attorney, the Klines agreed to allow Mr.
Benefiel and the subcontractors to begin repairs. The testimony of the Klines and Mr. Benefiel was
controverted concerning the events that occurred once the repair work began. The Klines claim that
Mr. Benefiel and the subcontractors failed to show up to work at scheduled times. Mr. Benefiel
asserts that the Klines frustrated the repairs by making unreasonable demands as to the type of
equipment that had to be used. Mr. Benefiel states that the Klines insisted that the subcontractors
leave the house until they obtained the proper equipment. The Klines argue that Mr. Benefiel was
unprepared to make the repairs because he was aware of the equipment that they required him and
the subcontractors to use. After a confrontation between Mrs. Kline and Mr. Benefiel, the Klines
refused to allow Mr. Benefiel in the house unless Mr. Kline was present. Benefiel’s attorney stated
that he made efforts to contact the Klines’ attorney as to when Mr. Benefiel could continue the
repairs, provided Mrs. Kline would not be present. Benefiel’s attorney claimed he received no
response from the Klines’ attorney.

        The Klines argue that the case at hand is controlled by Salley v. Pickney Co., 852 S.W.2d 240
(Tenn. Ct. App. 1992). In Salley, the complaint arose out of a contract entered into by the plaintiffs
(“the Salleys”) and the defendants (“Contractors”) whereby the Contractors agreed to raise the
Salleys’ house. The trial court dismissed the Salleys’ complaint for failure to mitigate their damages.
The Salleys appealed. The court of appeals reversed, finding that the Salleys acted reasonably under
the circumstances in refusing to allow the Contractors to come back into their house to make repairs.
See id. at 244. The court found that the Salleys could not be found to have failed to mitigate their
damages. See id. at 244-45. In making its determination, the court noted the defects in the
Contractors’ “unworkmanlike performance.” See id. at 244. The Klines argue that they cannot be
found to have failed to mitigate their damages after they refused to allow Mr. Benefiel and the



                                                 -9-
subcontractors back into the house to make repairs. The Klines assert that there were a number of
defects in Benefiel’s work just as in the Contractors’ work in Salley.

        We find that Salley is readily distinguishable from the case under consideration. The Salleys
alleged numerous violations in their complaint against the Contractors, including: (1) failing to hire
qualified and experienced workers; (2) failing to obtain necessary permits for plumbing and electrical
work; (3) failing to utilize licensed plumbers and electricians; and (4) violating building regulations.
See id. at 241. In addition, the court of appeals cited evidence demonstrating the Contractors’
unworkmanlike performance, including (1) raising the house one end at a time which was not done
by any other contractors in the area; (2) failing to construct the floor and walls of a room so that the
floor and wall met; (3) dumping the remains of a pre-existing concrete porch next to the house and
covering this over rather than hauling off the remains as required in the contract; (4) tearing the brick
off the exterior of the home in the darkness and doing so in a careless and reckless manner as to pull
the cable television connection through the exterior wall and rip it from the cable tuner box; and (5)
rupturing a waterline by breaking off an exterior water faucet. See id. at 244-45. By contrast, the
trial court in the case at hand stated that “with the exception of the tile, the patio and the sheetrock,
and other minor matters, this construction was workmanlike and satisfactory.” The trial court further
found that Benefiel was not responsible for the defects in constructing the Mexican tile. The defects
in Salley were much more egregious than any of the defects contemplated in the case at hand, such
as misplaced light switches or a lack of handles on cabinet doors in a bookcase. Due to the factual
distinction between Salley and the case at hand, we find the holding in Salley is not controlling in
this case.

        The trial court stated that because the testimony of the witnesses was highly controverted,
it weighed the relative credibility of the witnesses in arriving at its findings and conclusions. As
stated above, the trial court found Mr. Benefiel to be a more credible witness than the Klines, and
without clear and convincing evidence to the contrary, we decline to disturb the trial court’s findings
as to credibility. Our review of the record, taking into account the trial court's determination of the
credibility of the witnesses, leads us to conclude the evidence does not preponderate against the trial
court's finding that the Klines failed to mitigate their damages.


                                           Attorney’s Fees

        The sixth issue presented for our review is whether the trial court erred in failing to award
attorney’s fees under the Tennessee Consumer Protection Act pursuant to section 47-18-109 of the
Tennessee Code. Section 47-18-109(e)(1) states, “Upon a finding by the court that a provision of
this part has been violated, the court may award to the person bringing such action reasonable
attorney’s fees and costs.” Tenn. Code Ann. § 47-18-109(e)(1) (1995). The trial court found that
Benefiel’s advertisement brochure was “false and misleading, violative of the Consumer Protection
Act.” The Consumer Protection Act limits recovery to “any person who suffers an ascertainable loss
of money or property, real, personal, or mixed, or any other article, commodity, or thing of value
wherever situated, as a result of the use of or employment by another person of an unfair or deceptive


                                                  -10-
act or practice . . . .” Tenn. Code Ann. § 47-18-109(a)(1). The trial court found that the Klines
suffered no ascertainable loss as a result of the advertisement brochure so that the Consumer
Protection Act had no application. Because the trial court found that the Klines were ineligible to
recover under the Consumer Protection Act, the trial court acted appropriately in failing to award
attorney’s fees under the Consumer Protection Act. Nevertheless, even if the Klines were eligible
to recover under the Consumer Protection Act, the trial court is vested with broad discretion in the
allowance of attorney's fees. See Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297, 306 (Tenn.
Ct. App. 1984). We find nothing in the record to indicate that the trial court abused its discretion.


                                           IV. Conclusion

        For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellants, Stanley J. Kline and Sandra C. Kline, for which execution may issue
if necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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