WAYNE A. HOWES, ETAL.
MARKSWANNER, ET AL.
Assigned on Briefs April 3, 2017
from the Circuit Court for Montgomery County No.
MC-CC-CV-DD-11-2599 Ross H. Hicks, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
D. Bennett, J., delivered the opinion of the Court, in which
Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE.
and Procedural Background
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.
October 31, 2011, Homeowners filed this action against Ultra
Clean, State Farm, and their State Farm agent. 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,
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.
Homeowners alleged causes of action against the Swanners for
breach of contract and for fraud ...