                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 5, 2007 Session

              THOMAS MORROW, ET AL. v. RONNIE BULL, ET AL.

                      Appeal from the Circuit Court for Hamilton County
                         No. 02C2245     W. Neil Thomas, III, Judge



                No. E2007-00606-COA-R3-CV - FILED FEBRUARY 27, 2008


The tenants, who leased a newly-constructed house from the builder/owner, sued the builder/owner
alleging, among other things, that the house was negligently constructed in that it was built on a site
that unreasonably exposed the house to excessive moisture and with a deficient water runoff and
drainage system. The tenants sought compensation for personal injury and property damage
allegedly caused by toxic mold in the house due to excessively wet basement walls. The trial court
granted the builder/owner summary judgment. Upon review, we vacate the trial court’s summary
judgment based on our finding that genuine issues of material fact exist.

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

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D.
MICHAEL SWINEY , J., joined.

John M. Wolfe, Jr., Chattanooga, Tennessee, for the Appellants, Thomas Morrow and Deborah
Morrow, individually and as parents and next friends of minors Charles Morrow and Elizabeth Anne
Morrow.

Douglas M. Campbell, Chattanooga, Tennessee, for the Appellees, Ronnie and Michelle Bull,
individually and d/b/a Bull Construction.

                                             OPINION

                                           I. Background

        Defendant Ronnie Bull, doing business as Bull Construction, constructed a residence in
Chattanooga, Tennessee, completing it in the fall of 2000. On February 1, 2001, Thomas and
Deborah Morrow signed a lease-purchase agreement with Mr. Bull wherein the Morrows agreed to
rent the house for two years with an option to purchase. The Morrows moved in with their two
children shortly thereafter; they were the first occupants of the house.
        The home’s unfinished basement, which was constructed of concrete blocks and had a
concrete floor, was used by the Morrows for storage of their personal items. Both Mr. and Mrs.
Morrow testified that the concrete blocks in a certain portion of the basement wall were frequently
wet from top to bottom. The Morrows began to notice mold growing in the basement in early
October of 2001. Mrs. Morrow testified that the mold infestation spread to cover the walls,
including an interior partition wall, in the basement, and all over the family’s personal items stored
in the basement.

       The mold turned out to be a particularly toxic variety. The Morrows’ son, Charlie, contracted
an infection from mold exposure that required hospitalization for five or six days and extensive
medical treatment, including chemotherapy. Charlie missed months of school and has undergone
continuing medical treatment. Upon the advice of their doctors, the Morrows vacated the house
immediately, abandoning their infested personal belongings.

        The Morrows brought this action against Bull Construction and Mr. Bull (collectively
“Bull”), alleging that the Defendants negligently and carelessly selected a construction site that
unreasonably exposed the house to excessive moisture, including groundwater and rainwater runoff,
that the house had an inadequate water drainage system, and that it was inadequately waterproofed
and/or weatherproofed. Bull answered and, following discovery, moved for summary judgment.
The trial court granted Bull summary judgment, finding that the Morrows had presented insufficient
proof that the house was constructed in a defective manner and that the mold was caused by
defective construction.

                                         II. Issue Presented

       The Morrows appeal, raising the issue, as restated, of whether the trial court erred in granting
Bull summary judgment.

                                            III. Analysis

                                       A. Standard of Review

        Summary judgments enable courts to conclude cases that can and should be resolved on
dispositive legal issues. See Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Airport Props. Ltd.
v. Gulf Coast Dev., Inc., 900 S.W.2d 695, 697 (Tenn. Ct. App. 1995). They are appropriate only
when the facts material to the dispositive legal issues are undisputed. Accordingly, they should not
be used to resolve factual disputes or to determine the factual inferences that should be drawn from
the evidence when those inferences are in dispute. See Bellamy v. Federal Express Corp., 749
S.W.2d 31, 33 (Tenn. 1988).

        To be entitled to summary judgment, the moving party must demonstrate that no genuine
issues of material fact exist and that he or she is entitled to judgment as a matter of law. See Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d at 210; Planet Rock, Inc. v. Regis Ins. Co., 6 S.W.3d
484, 490 (Tenn. Ct. App. 1999). Summary judgment should not be granted, however, when a

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genuine dispute exists with regard to any material fact. Seavers v. Methodist Med. Ctr., 9 S.W.3d
86, 97 (Tenn. 1999); Hogins v. Ross, 988 S.W.2d 685, 689 (Tenn. Ct. App. 1998). Our task on
appeal is to review the record to determine whether the requirements for granting summary judgment
have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Aghili v. Saadatnejadi,
958 S.W.2d 784, 787 (Tenn. Ct. App. 1997). Tenn. R. Civ. P. 56.04 provides that summary
judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant
to the claim or defense contained in the motion, see Byrd, 847 S.W.2d at 210; and (2) the moving
party is entitled to a judgment as a matter of law on the undisputed facts. See Anderson v. Standard
Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). A party seeking summary judgment must
demonstrate the absence of any genuine and material factual issues. Byrd 847 S.W.2d at 214.

         When the party seeking summary judgment makes a properly supported motion, the burden
shifts to the non-moving party to set forth specific facts establishing the existence of disputed,
material facts which must be resolved by the trier of fact. See Byrd 847 S.W.2d at 215. Robinson
v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). The non-moving party may not simply rest upon the
pleadings, but must offer proof by affidavits or other discovery materials (depositions, answers to
interrogatories, and admissions on file) provided by Rule 56.06 showing that there is a genuine issue
for trial. If the non-moving party does not so respond, then summary judgment, if appropriate, shall
be entered against the non-moving party. Tenn. R. Civ. P. 56.06.


        Summary judgments do not enjoy a presumption of correctness on appeal. See Nelson v.
Martin, 958 S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. Bedford County, 938 S.W.2d 408,
412 (Tenn. 1997). Accordingly, when we review a summary judgment, we view all the evidence in
the light most favorable to the non-movant, and we resolve all factual inferences in the non-movant’s
favor. See Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox County Bd.
of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). A summary judgment will be upheld only when the
undisputed facts reasonably support one conclusion - that the moving party is entitled to a judgment
as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder,
913 S.W.2d 150, 153 (Tenn. 1995).


                                     B. Negligent Construction


        The trial court’s judgment was based on its conclusion that the proof presented by the
Morrows was insufficient to establish a genuine issue of material fact regarding whether the house
was negligently constructed, resulting in excessive water seepage and moisture exposure, and
whether the mold infestation resulted from the negligent and deficient construction. Thus, we
review the evidence presented in support of and opposition to summary judgment, keeping in mind
the requirement that the evidence must be viewed in the light most favorable to the non-movants,
the Morrows, and all reasonable inferences from the proof drawn in their favor. This review
persuades us that the trial court erred in concluding that no genuine issues of material fact existed
and in granting Bull summary judgment.

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        The Morrows’ assertion that areas of the basement walls were frequently wet is supported
by their deposition and affidavit testimony and the affidavit of their expert. Bull did not dispute the
alleged existence and extent of the mold infestation in the house. Mrs. Morrow testified that the
mold was a result of the excessive moisture in the underground basement walls, which came from
ground moisture. The affidavit of Mr. Bull filed in support of summary judgment states the
following in relevant part:


               The Morrows were the first people who occupied the house, and
               when they moved in everything was in perfect working order.
               To the best of my knowledge, there was no type of moisture or
               drainage problem at any time in the basement. The basement was
               constructed of concrete blocks and mortar by Crawford Masonry, and
               there was no running water in the basement.
               At no time prior to the lease of 1231 Cranbrook Drive to Tommy and
               Deborah Morrow did I have any knowledge that there was any type
               of moisture problem in the basement or any problem with drainage to
               or away from the house.


       After the Morrows vacated the house, Mr. Morrow walked through and examined the
basement with Joe Tiano, a former co-owner of a remodeling and repair business with approximately
30 years of experience in that field. Mr. Tiano testified by affidavit as follows:


               In early 2002, I received a call from Tommy [Morrow] where he
               informed me that the doctors believed Charlie’s illness was due to
               toxic mold exposure and Tommy asked me to come and take a look
               at the house they were living in to check for possible sources of mold.
               I walked through the house with Tommy. In [the] basement, I found
               the presence of a substance that appeared to [be] mold in several
               places, including on the Morrows’ personal items, on the exterior
               walls (including the cement blocks), on a partition wall, and on a
               piece of sheetrock on the basement floor.
               In the basement, the exterior walls appeared to be wet and I could see
               evidence of water seepage through the cement blocks on the exterior
               walls.
               Tommy asked me for my opinion as to construction flaws that could
               have caused the mold in the basement. I informed that the following
               items could have caused the mold:
               a. slope of the lot;
               b. location of the lot;

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               c. lack of drainage in the front yard – to keep water from running
               straight to the front of the house;
               d. lack of French drains along the wall of the foundation and/or lack
               of properly functioning French drains;
               e. inadequate waterproofing on the outside of the foundation wall
               along the front and sides of the house;
               f. improper drainage of the driveway;
               g. improper drainage of the retaining wall at the entry door to the
               basement;
               h. possible lack of moisture barrier beneath the concrete slab;
               i. lack of ventilation in entire basement.


        The trial court ruled that Mr. Tiano’s affidavit was insufficient to create a genuine issue of
material fact, stating that “the affidavit does not point to any one condition which did cause the mold
and, therefore, deals in possibilities, not probabilities.” While Mr. Tiano’s opinion as to potential
causation of the mold infestation could have been stated with more certainty, it is clearly not so
vague as to be completely discounted on a summary judgment determination. We note in this regard
that all nine of the possible causes identified by Mr. Tiano involve defective or insufficient
construction of the house. Generally speaking, “proximate causation is a jury question unless the
uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable
persons must agree on the proper outcome.” McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.
1991); Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005) (stating “[g]iven that the evidence on
summary judgment must be viewed in the light most favorable to the plaintiff, however, the issue
of causation, as well as the allocation of comparative fault, are determinations of fact to be made by
the jury.”).


        Furthermore, this court, recently presented with a similar allegation of injury from toxic mold
infestation due to excessive water runoff from new construction, stated the following in vacating
summary judgment in the case of Hardaway v. Hamilton County:


               The combination of the expert and lay testimony clearly creates a
               genuine issue of material fact regarding whether water runoff from
               the school construction caused the mold growth under plaintiffs’
               home, especially when viewing the evidence in the light most
               favorable to plaintiffs.
               As our Supreme Court explained in a case involving negligent construction:




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                      In Casone v. State, 193 Tenn. 303, 246 S.W.2d 22, 26
                      (1952), Justice Burnett taught us when expert
                      testimony is necessary. The subject under examination
                      must be one that requires that the court and jury have
                      the aid of knowledge or experience such as men not
                      specially skilled do not have, and such therefore as
                      cannot be obtained from ordinary witnesses.
                      As the learned text writer points out, “the subject of
                      expertise must be one that would not be
                      comprehensible to jurors without the aid of an expert
                      witness.” Paine, Tennessee Law of Evidence, s 174.
                      We do not perceive this to be such a case. The digging
                      of ditches and the laying of cables are matters within
                      the ken of ordinary laymen. The vagaries of the
                      weather are matters of great concern and a topic of
                      daily conversation among people generally, regardless
                      of their background, profession, or station in life.


              Lawrence County Bank v. Riddle, 621 S.W.2d 735, 737
              (Tenn.1981). Similarly, here, plaintiffs were competent to testify that
              they experienced water problems at their home during construction of
              the school that they had never experienced before, and that some
              months after these water problems began, they noticed a foul odor
              emanating from underneath their house.
                             *               *               *

              Moreover, plaintiffs can offer their opinion of the cause of the mold
              growth. See Tenn. R. Evid. 701, and when plaintiffs’ testimony is
              coupled with the experts’ testimony, it is clear that an issue of
              disputed material fact has been established that precludes summary
              judgment. A causal connection may be established by expert opinion
              combined with lay testimony. White v. Werthan Industries, 824
              S.W.2d 158 (Tenn.1992).


Hardaway v. Hamilton County, No. E2006-01977-COA-R3-CV, 2007 WL 4207930, at *2 (Tenn.
Ct. App. E.S., filed Nov. 29, 2007). We reach a similar conclusion here – that upon this record,
summary judgment was inappropriate. The proof presented by the Morrows is sufficient to raise a
genuine issue of material fact as to whether the newly-built house was negligently constructed,
resulting in excessive moisture in the basement and the resultant toxic mold infestation.




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                                         IV. Conclusion


        For the aforementioned reasons, the summary judgment of the trial court in Bull’s favor is
vacated and the case remanded for further proceedings consistent with this opinion. Costs on appeal
are assessed to the Appellee, Ronnie Bull d/b/a Bull Construction.




                                             _________________________________________
                                             SHARON G. LEE, JUDGE




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