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Howes v. Markswanner

Court of Appeals of Tennessee, Nashville

May 17, 2017

WAYNE A. HOWES, ETAL.
v.
MARKSWANNER, ET AL.

          Assigned on Briefs April 3, 2017

         Appeal from the Circuit Court for Montgomery County No. MC-CC-CV-DD-11-2599 Ross H. Hicks, Judge.

         Homeowners filed suit for breach of contract and fraud and/or negligent representation against the owners of a restoration business who performed repairs on their house after a fire. When the defendants failed to respond to or appear at the hearing on the plaintiffs' motion for summary judgment, the trial court granted summary judgment for the plaintiffs. The defendants then filed a Tenn. R. Civ. P. 60 motion and affidavits stating that they did not receive notice of the hearing on the motion for summary judgment. The trial court held a hearing on the Rule 60 motion and denied the motion. Because there is no transcript or statement of the evidence regarding the hearing on the summary judgment motion or on the Rule 60 motion, we must accept the trial court's findings of fact. We find no abuse of discretion in the trial court's denial of the plaintiffs' Rule 60 motion.

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

          Jacob P. Mathis, Clarksville, Tennessee, for the appellants, Mark Swanner and Robin Swanner.

          Gregory D. Smith, Clarksville, Tennessee, for the appellees, Wayne A. Howes and Starlene K. Howes.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         Wayne and Starlene Howes ("Homeowners") own a home located on Broadripple Drive in Clarksville, Tennessee. In January 2011, Homeowners' home sustained substantial damage in a fire, and their insurer, State Farm Insurance Company ("State Farm"), acknowledged that they had a valid claim under their fire insurance policy. Upon the recommendation of their State Farm agent, Homeowners contracted with Mark and Robin Swanner, owners and operators of Ultra Clean Restoration (also known as Ultra Clean Carpet Cleaning) ("Ultra Clean"), to do clean-up, repairs, and restoration work on their home.

         On October 31, 2011, Homeowners filed this action against Ultra Clean, State Farm, and their State Farm agent.[1] The complaint alleges, in pertinent part, as follows:

On or about January 18, 2011, Defendant, Mark Swanner, came to 1765 Broadripple Drive, Clarksville, Tennessee and requested that Plaintiff . . . personally obtain the building permit to begin work on 1765 Broadripple Drive, Clarksville, Tennessee. . . .
Unusual business practices by Defendant Mark Swanner caused Plaintiffs to have concern regarding Defendant, Mark Swanner and his company, Ultra Clean Restoration . . . . Upon investigation, the quality of work being done by the Defendants, Mark and Robin Swanner, also came into question. Around May 11, 2011, these concerns were voiced to Defendant, Steve R. Ray [the State Farm agent].
Investigation revealed that neither Defendant, Mark Swanner nor Defendant, Robin Swanner had a contractor's license as is required for jobs of over $25, 000.00 by Tenn. Code Ann. § 62-6-103. Defendant, Mark Swanner, was paid approximately $87, 500.00 regarding 1765 Broadripple Drive, Clarksville, Tennessee and some of the checks paid were in excess of $25, 000.00 prior to this fact coming to light with Plaintiffs. . . . .
Due to concerns over poor workmanship, work ethic and the failure to disclose the lack of contractor's license, Plaintiffs sought to dismiss Defendants Mark Swanner and Robin Swanner from further work on 1765 Broadripple Drive, Clarksville, Tennessee on the basis of both breach of contract and fraud or misrepresentation. Defendant, Steve R. Ray . . . insisted that the Defendants, the Swanners, should continue working on 1765 Broadripple Drive, Clarksville, Tennessee.
Defendant, State Farm, would not issue new checks to allow another contractor, one who had a license, to finish repairs on 1765 Broadripple Drive, Clarksville, Tennessee. As a result, Plaintiffs sought reimbursement from both Defendants, the Swanners, and from Defendant, State Farm, to either refund costs paid or to get an independent licensed home inspector to examine and approve work already done by the Swanners. These options were declined and therefore, Plaintiffs filed the pending suit.

         The Homeowners alleged causes of action against the Swanners for breach of contract and for fraud ...


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