Clark v. Givens

• Docket Number: M2022-00341-COA-R3-CV
• Decision Date: 02 November 2023
• Parties: JULIE CLARK v. WANDA GIVENS,[1] ET AL.
• Court: Tennessee Court of Appeals

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JULIE CLARK
v.
WANDA GIVENS,^[1] ET AL.

No. M2022-00341-COA-R3-CV

Court of Appeals of Tennessee, Nashville

November 2, 2023

Session February 7, 2023

Appeal from the Circuit Court for Dickson County No. 2017-CV-50 Larry J. Wallace, Judge

A homeowner, displeased with the work performed by a handyman, brought suit, seeking damages and relief under the Tennessee Consumer Protection Act. The handyman counterclaimed for the value of the oral contract for services, asserting the homeowner breached the contract by improperly terminating it. The circuit court denied relief to both parties, and the parties appeal. We conclude that the circuit court did not err in determining that there was no enforceable contract, precluding relief for the handyman. Likewise, the homeowner is not entitled to relief because the evidence does not preponderate against the circuit court's finding that there was no misrepresentation and that the handyman rendered services to earn certain prepaid amounts. The judgment of the circuit court is affirmed.

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

Julie Clark, White Bluff, Tennessee, Pro Se.

George E. Copple, Brentwood, Tennessee, for the appellee, Jeffrey Givens.

JEFFREY USMAN, J., delivered the opinion of the court, in which ANDY D. BENNETT and W. NEAL MCBRAYER, JJ., joined.

OPINION

JEFFREY USMAN, JUDGE

I.

This case concerns an alleged oral contract between Dr. Julie Clark, a veterinarian

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seeking home repair services, and Jeffrey Givens, a handyman. Dr. Clark asserts that Mr. Givens, who had sustained a prior workplace injury, was unable to complete the work contemplated by the contract. She also asserts that the quality of work Mr. Givens did perform was substandard and that Mr. Givens and his wife, Wanda Givens, misrepresented Mr. Givens's abilities to Dr. Clark in order to induce her to enter the contract. Mr. Givens, on the other hand, asserts that he was at all times willing and able to perform the work contemplated, that Dr. Clark breached the contract by unilaterally terminating it and assigning the work to others, including Dr. Clark's son-in-law, and that he is entitled to any payments he would have received under the contract.

The proof at trial showed that Dr. Clark had purchased a new home and was preparing to sell her prior residence. As part of the contemplated sale, she intended to procure certain home renovations, including painting the interior of the home. Dr. Clark became aware that Mr. Givens had built some cabinets at her grandson's daycare, where Ms. Givens was the director. On inquiry, Ms. Givens told Dr. Clark that Mr. Givens was capable of doing the contemplated work. Specifically, she told Dr. Clark that Mr. Givens was a jack-of-all-trades and that "[h]e can do anything." Ms. Givens did not mention Mr. Givens's prior severe workplace injury. At trial, she explained this omission by testifying, "That wasn't part of the question. I didn't think about that.... I just said he was able to do the jobs." She elaborated, "It's not that I was trying to hide it. I don't know why I didn't say [anything] up[ ]front. I know what he's capable of. I know what he can do." While acknowledging that she had not mentioned Mr. Givens's injury, Ms. Givens testified that she did not think the injury was pertinent because she believed Mr. Givens could perform the required work. Ms. Givens testified that "I didn't think at the time that it would bother him to do [the] job," and stated that she knew "what he's capable of and I knew he could paint with his right hand." Ms. Givens insisted, "If he couldn't paint, I would tell her he couldn't paint. I knew he was capable of that. Yes, he could do that."

Dr. Clark contacted Mr. Givens to inquire about having him do the work she contemplated at her old house. Initially, Mr. Givens performed some plumbing work at the old house and some minor repairs at Dr. Clark's new home. Mr. Givens performed this work to her satisfaction, and he was paid. According to Dr. Clark, the man who was doing tile work in the bathroom said Mr. Givens did a "great job" on the plumbing.

Accordingly, Dr. Clark asked Mr. Givens to come to the house on January 14, 2016, so that they could discuss the desired improvements. Dr. Clark testified that she asked Mr. Givens about painting, and he told her that he was "a great painter" and that he had "done lots of painting." Like Ms. Givens, Mr. Givens did not mention his prior workplace injury. He testified he did not feel that he had to inform Dr. Clark because, "As long as I was doing my job and doing what I was supposed to be doing, then, no there's no problem with it." Asked directly why he neglected to inform Dr. Clark about his injury, he stated, "Ma'am, if I would have told you, you wouldn't [have] hired me." Mr. Givens, in confirming that he did not mention his injury when he was hired, also testified, "I'm not trying to sound

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ugly, but are you saying that disabled people cannot work?" Considered in the context of his entire testimony, the statement that Dr. Clark would not have hired him was not understood by the trial court as an admission that he could not perform the work but instead appears to have been understood by the trial court as an expression of Mr. Givens's fear that others might harbor unfair negative perceptions about persons with disabilities. Mr. Givens testified that he was physically capable of completing all the tasks required by the contract. Mr. Givens testified that he was self-taught as a painter and that he started painting as a means of earning income through odd jobs after he was injured.

While both Mr. and Ms. Givens testified that, when they spoke to Dr. Clark, they believed that Mr. Givens could perform the work, Dr. Clark introduced their deposition testimony from a workers' compensation case regarding the severity of Mr. Givens's injury. Ms. Givens had testified in September 2015 that Mr. Givens was injured in 2011, that he could not lift, pull, or push with his left arm after surgery, and that he used the arm as a "prop." She stated that Mr. Givens had not held a regular job since 2011 but that he had made cabinets for her daycare and done other odd jobs, with assistance. Mr. Givens had testified in July 2014 that he had nerve damage in his arm, three to four severe headaches a week, and problems with the vision in his left eye. He testified in his deposition that he had not been able to use his left arm at all since the injury but that he had done some work with some assistance.

Dr. Clark and Mr. Givens both testified that they entered into a contract on January 14, 2016, for Mr. Givens to perform renovations. However, they disagreed on the scope of work included in the contract and the amount to be paid. According to Dr. Clark, the contract entailed four tasks: painting the home for $8,500; removing and repairing kitchen cabinets for $400; stripping, priming, and painting cabinets for $675; and replacing bathroom countertops for $200. Dr. Clark testified that she agreed to pay Mr. Givens $9,775 total for these tasks, which were bid discretely. Dr. Clark testified that she solicited bids from Mr. Givens on other projects, but that she did not hire him to complete these projects. Dr. Clark took extensive notes related to the oral contract, and she used her notes to prepare her testimony. Mr. Givens, on the other hand, testified that the contract included not only the tasks listed by Dr. Clark but also other projects, specifically pressure washing the driveway and garage floor, painting the garage floor with epoxy, and painting and replacing handrails on the porch. According to Mr. Givens, the contract was not broken down into discrete tasks but was instead indivisible. He testified that he bid $11,575 to perform as a single project all of the work that the parties discussed.

Dr. Clark and Mr. Givens also disagreed on the discussed timeframe for completing the work. Dr. Clark testified that Mr. Givens was to be finished with the projects in two weeks, although she agreed that she did not tell Mr. Givens that time was of the essence. Mr. Givens testified he told Dr. Clark it would take "four weeks or better with one person." In response to an inquiry connected with an interrogatory in which he had stated the timeframe was six weeks, Mr. Givens stated that he had told her four to six weeks. He

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then said he had told her it would be about six weeks. Later in his testimony, Mr. Givens stated that the six-week estimate was just for painting the inside of the house. Mr. Givens ultimately testified that he believed the contract was for tasks to be performed and that he understood that he could take as much time as necessary to do a good job.

Dr. Clark gave Mr. Givens $2,500 at the time they entered into the contract. According to Dr. Clark, she checked on Mr. Givens's progress approximately two weeks later, on January 27, 2016, and expressed concern at the lack of progress. Dr. Clark testified she first learned of Mr. Givens's injury on this date, when he disclosed that he had not made more progress because he was beset by pain and headaches and had been attending appointments with his doctors and lawyers. Mr. Givens assured her he would make rapid progress and, "on the verge of tears," asked her for more money. Mr. Givens disputes Dr. Clark's testimony, indicating that on January 27th, Dr. Clark had told him that "[e]verything was looking good." The parties agree Dr. Clark gave Mr. Givens an additional $2,000 on January 27, 2016.

Dr. Clark testified that on February 2, 2016, she again expressed concern about Mr. Givens's slow progress and also regarding the quality of some of the painting. According to Dr. Clark, she told Mr. Givens she would hire someone else if he did not make substantial progress in the coming week. Dr. Clark testified that Mr. Givens had not made progress...