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Hayes v. Coopertown's Mastersweep, Inc.

Court of Appeals of Tennessee, Memphis

May 20, 2015

WILLIAM TIMOTHY HAYES, ET AL.
v.
COOPERTOWN'S MASTERSWEEP, INC.

Session: February 24, 2015

Appeal from the Circuit Court for Shelby County No. CT00023608 Karen R. Williams, Judge

Russell E. Reviere, Jonathan D. Stewart, and Brandon W. Reedy, Jackson, Tennessee, for the appellants, William Timothy Hayes and Stephanie Hayes.

Leland M. McNabb, Pam Warnock Blair, and Andrew J. Droke, Memphis, Tennessee, for the appellee, Coopertown's Mastersweep, Inc.

Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE

I. Background

On November 17, 2000, William and Stephanie Hayes (together, "the Hayeses, " or "Appellants") purchased a house, which was constructed in 1964. Before the Hayeses moved into their home, they contracted with a third party, who is not a party to this appeal, to have the kitchen and the den fireplace remodeled. The fireplace was originally all-brick construction, but the Appellants replaced some sections of the hearth with granite, and lowered the location of the firebox by roughly two feet, flush with the floor of the sunken den. The sunken den is slab construction, but the rest of the first floor is conventional foundation construction. The back of the fireplace originally served as part of the kitchen wall; however, as part of the remodeling, Appellants had the fireplace brick covered in the kitchen and painted the inside of the new, lowered firebox, which obscured the fact that the lowered firebox was new construction.

The remodeled fireplace did not function properly. Whenever the Hayes built a fire, they noticed that smoke escaped into the den and that the upper floors and attic smelled like smoke. Eventually, Mr. Hayes contacted Coopertown's Mastersweep, Inc. ("Mastersweep" or "Appellee") and requested an inspection of the fireplace to determine the cause of the smoke problem. On December 18, 2002, Mastersweep's president, Charles "Ken" Robinson, inspected the Hayeses' chimney and fireplace. The Appellants did not inform Mr. Robinson that the firebox had been lowered as part of the recent remodeling work. Mr. Robinson's inspection included: (1) a visual inspection of the chimney sections located in the house's attic and above the roof; (2) a visual inspection beneath the fireplace in the house's crawlspace; and (3) a visual inspection of the inside of the fireplace and the chimney. Mr. Robinson used a camera to inspect the chimney flue, and he also drilled into the fireplace to ascertain whether there was any combustible material in contact with the fireplace. Parts of this inspection, including the inspection beneath the fireplace and the drilling, went beyond the inspection that the Hayeses contracted for. There were areas underneath the fireplace that could not be seen or inspected by Mr. Robinson. Based upon his inspection, Mr. Robinson concluded that the dimensions of the fireplace and the chimney were not conducive to proper smoke flow. Mr. Robinson also determined that the inside of the fireplace was incorrectly shaped, causing improper smoke ventilation and resulting in smoke from the fireplace escaping into the den. He also discovered that the clay tiles lining the chimney flue were cracked, which allowed smoke to escape into the upper floors and attic of the house.

In a letter to Mr. Hayes dated December 23, 2002, Mr. Robinson proposed a redesign of the fireplace to correct the smoking problems. Mr. Robinson's letter contained six specific recommendations:

1. Tear out [a] portion of the existing firebox and the damper to gain access to the smoke chamber.
2. Climb up into the smoke chamber and repair all of the cracked and damaged mortar that has been thermal shocked by completely parging the smoke chamber with fire clay mortar.
3. Remove the loose and/or cracked flue liners as necessary to prepare for the liner installation.
4. Install a 304 grade, heavy walled, flexible, stainless steel liner from the top of the chimney to the top of the smoke chamber. This will require removal of the clay pot and ...

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