                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                      September 3, 2008 Session

                         GREGG BOLES
                              v.
         TIMOTHY MOORE and MOORE FAMILY MEDICINE, PLLC

                         Appeal from the Circuit Court for Rutherford County
                                  No. 55149    Royce Taylor, Judge



                        No. M2007-02513-COA-R3-CV - Filed December 30, 2008


This is a construction case. The plaintiff filed an action in general sessions court to collect money
that he alleged that the defendants owed him under a construction contract. The general sessions
court entered a judgment in the plaintiff’s favor, and the defendants appealed to the circuit court.
The circuit court also entered a judgment in favor of the plaintiff. After the circuit court denied the
defendants’ motion for a new trial, the defendants appealed. We affirm, finding that the evidence
does not preponderate against the trial court’s findings.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and
J. STEVEN STAFFORD , J., joined.

Tony L. Maples, Murfreesboro, Tennessee, for the Defendant/Appellant Timothy Moore and Moore
Family Medicine, PLLC.

C. Tracey Parks, Lebanon, Tennessee, and Larry K. Tolbert, Murfreesboro, Tennessee, for the
Plaintiff/Appellee Gregg Boles.

                                     MEMORANDUM OPINION1

        1
            Rule 10. M emorandum Opinion

        This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
        modify the actions of the trial court by memorandum opinion when a formal opinion would have
        no precedential value. W hen a case is decided by memorandum opinion it shall be designated
        “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
        reason in any unrelated case.

Tenn. Ct. App. R. 10.
       On January 12, 2007, Plaintiff/Appellee Gregg Boles2 (“Boles”) caused a civil warrant from
the General Sessions Court of Rutherford County to be issued against Defendants/Appellants
Timothy Moore and Moore Family Medicine, PLLC (collectively “Moore”) to collect $17,225.22
that Boles alleged Moore owed him under a construction contract to build-out an existing building
for a medical practice. In response, Moore filed a counterclaim, alleging breach of contract and
breach of warranty. The General Sessions Court held a trial and on March 13, 2007 entered a
judgment in favor of Boles in the amount of $9,000. The General Sessions Court also dismissed
Moore’s counterclaim.

        Moore appealed the decision of the General Sessions Court to the Circuit Court of Rutherford
County. On August 16, 2007, after a bench trial, the Circuit Court entered a judgment in favor of
Boles. The Circuit Court determined that Boles was entitled to damages in the amount of
$17,225.22, less a setoff of $1,538.00 for materials provided by Moore and for unfinished work.
Boles was also awarded $1,418.30 in prejudgment interest. Therefore, the Circuit Court awarded
Boles a total judgment of $17,105.52. On August 30, 2007, Moore filed a motion for a new trial.
The Circuit Court denied Moore’s motion for a new trial on October 5, 2007. Moore then filed his
appeal to this Court.

       Moore raises two issues on appeal. First, Moore asks us whether the trial court erred in
finding that Boles had not breached any implied warranties. Second, Moore asks us whether the
weight of the evidence is against the trial court’s decision.

       Because this case was tried by the trial court sitting without a jury, we review the trial court's
findings of fact de novo upon the record with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); White v. Early, 211 S.W.3d 723, 737 (Tenn. Ct.
App. 2006) (citation omitted). We give “considerable deference” to a trial court’s determinations
with regard to witness credibility. Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733 (Tenn.
2002) (citations omitted). Questions of law are reviewed de novo with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001) (citations omitted).

         Moore argues that Boles breached the implied warranties in the construction contract. See
Dixon v. Mountain City Constr. Co., 632 S.W.2d 538, 541 (Tenn. 1982). He directs our attention
to photographs that were made exhibits at trial to demonstrate that the build-out was not “constructed
in a workmanlike manner.” Moore also argues that these photographs support his contention that
the trial court’s decision is against the weight of the evidence.

        We have carefully reviewed the appellate record, including the photographs noted by Moore.
Giving appropriate deference to the credibility determinations made by the trial court with regard
to the experts and other witnesses, we cannot say that the evidence preponderates against the trial


         2
         The spelling of Mr. Boles’ first name is inconsistent throughout the record. It is spelled as both “Greg”
and “Gregg.”

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court’s implicit finding that Boles did not breach any implied warranties, or against the trial court’s
ultimate decision.

        The decision of the trial court is affirmed. The costs of this appeal are taxed to the appellants
Timothy Moore and Moore Family Medicine, PLLC, and their surety, for which execution may issue
if necessary.




                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE




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