Gary R. Prince Revocable Trust v. Blackwell
| Decision Date | 17 August 2010 |
| Docket Number | No. 3:09-0475,3:09-0475 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | GARY R. PRINCE REVOCABLE TRUST, Gary R. Prince Trustee, Gary Prince, Christopher Campbell, William Liston and wife Diana L. Liston, Plaintiffs, v. Chris BLACKWELL personally and d/b/a Blackwell Construction, William Blackwell and DBS & Associates of Clarksville, Inc., Defendants. |
Philip L. Robertson, Smythe, Puryear & Robertson, Nashville, TN, for Plaintiffs.
William Timothy Harvey, Harvey & Silvus, Clarksville, TN, Jefferson C. Orr, Smith, Cashion & Orr, Nashville, TN, for Defendants.
This is a diversity action involving alleged water damage to several multi-unit residential complexes. Pending before the Court is a Motion for Partial Summary Judgment filed by Plaintiffs Gary R. Prince Revocable Trust, Gary R. Prince Trustee, Gary Prince, Christopher Campbell, William Liston and Diana L. Liston (Docket Entry No. 29). Also pending are separate Motions for Summary Judgments filed by Defendant DBS & Associates of Clarksville, Inc. ("DBS") (Docket Entry No. 37) and Defendants Chris Blackwell,personally and d/b/a Blackwell Construction, and William Blackwell ("the Blackwell Defendants") (Docket Entry Nos. 45). Those Motions will be discussed under separate headings after a review of the general facts common to all motions. The facts will be expanded upon where necessary for purposes of the legal discussion.
This case arises out of the design and construction of four apartment complexes in Montgomery County, Tennessee, all of which were purchased by Plaintiffs. The properties are located on Tower Drive, Stephanie Drive, Ringgold Court, and Cory Drive.
All of the properties were constructed in 2006 and early 2007 by Defendant Blackwell Construction, which is a general partnership owned by Defendants Chris Blackwell and William Blackwell. DBS provided civil site design and engineering services for the properties located on Ringgold Court, Stephanie Drive, and Cory Drive.
When Plaintiffs purchased the Tower Drive property, it was already completed and had some tenants residing therein. The remaining properties were built pursuant to Purchase and Sale Agreements ("Purchase Agreements") between Plaintiffs and the Blackwell Defendants.
With respect to each of the properties, Prince acted as an agent for the remaining Plaintiffs and only he communicated directly with Chris and William Blackwell. Prince claims that Chris Blackwell wrongly informed him that he was a licensed contractor, although the date of that representation is disputed.
The licensing issue was only briefly touched upon in Prince's deposition and, at the time, Prince stated he "was pretty sure" there was some discussion about Chris Blackwell being a contractor, but he did not remember the details of the conversation (Prince Depo. at 39-40). In a Declaration filed in support of Plaintiff's Motion for Summary Judgment, Prince states that Chris Blackwell told him he was a licensed contractor after the purchase of the Tower Drive property, "but prior to arranging or the closing of the sales of the other properties[.]" (Prince Decl. ¶¶ 7-8). For his part, Chris Blackwell admitted in his deposition that he told Prince he had a contractor's license, although he does not recall when the conversation took place. (Chris Blackwell Depo. at 24). Regardless, neither Chris nor William Blackwell were licensed contractors at the time any of the subject properties were built, and Plaintiffs learned through a July 7, 2008 e-mail to their property manager that Chris Blackwell was probably not a licensed contractor. (Docket Entry No. 41-13). Both Defendant Chris and William Blackwell received Tennessee contractor's licenses after the units at issue were built.
Under the Purchase Agreements, Plaintiffs had the right and responsibility to inspect the properties for "structural defects, interior water intrusion(s), standing water within foundation and/or basement, and the roof and decking for visible leaks." (Docket Entry No. 1, Ex. A ¶ 8B). The Purchase Agreements also provided that "[i]n the event Buyer fails to timely make any inspection, the Buyer shall have forfeited any rights provided under this Section [entitled Inspections], and in such case shall accept the Property in its current condition normal wear and tear excepted." ( Id. ¶ 8A). The Purchase Agreements further stated that Plaintiffs had the right to a Final Inspection of the properties one day before closing and that "[c]losing of this sale constitutes acceptance of the Property unless otherwise noted in writing." ( Id. ¶ 8D).
Plaintiffs had the opportunity to inspect all of the properties and did, in fact, inspect at least both the Cory Drive and Stephanie Drive properties prior to closing. Prince inspected those properties, as did Plaintiffs' realtor, and Ed Hadley ("Hadley"), a home inspector. Prince noticed some cut trees which were stacked on the Cory Drive property and, at his request, the trees were removed. Hadley developed a "punch list" of items that needed to be fixed on the properties and those items were corrected.
Sometime after the units were completed and Plaintiffs obtained ownership and possession, Plaintiffs and/or their tenants began complaining about water entry on the properties. Plaintiffs claim that improper drainage, defective site grading, and improper or defective construction have lead to significant water damage, even after moderate rains. Plaintiffs allege that the water intrusion includes not only the foundation of the apartments and surrounding land, but also significant intrusion into the ground floor apartments on some of the properties. This is most acute with respect to the Cory Drive property, while the Stephanie Drive property has some localized flooding issues, and the Tower Drive property has some issues with siltation forming in the drives and parking areas.1
Plaintiffs first contacted Chris Blackwell regarding flooding at the Cory Drive property approximately six or seven months after Plaintiffs became owners of the property. He went to the property and found a swimming pool lodged in the drainage ditch, damming the ditch and resulting in water entry onto the property. On another occasion, Chris Blackwell found down spouts laying in the parking lot, which had been presumably removed by the property management company to place shutters on the units at the Cory Drive property. He also found that splash guards had been removed from the down spouts. On still another occasion, Chris Blackwell found that tenants had placed a large trampoline in a drainage ditch which resulted in blockage.
In 2008, Plaintiffs hired Ed Neely ("Neely"), a professional engineer, to inspect the properties for potential water problems. Neely and Prince met with Chris Fielder ("Fielder") of DBS to discuss water issues at the Cory Drive property. Thereafter, in 2008, DBS and the Blackwell Defendants redesigned the slope of the property in an effort to fix the water issues and installed a $20,000 drainage system and overflow pipe. Additionally, with the permission of the City of Clarksville, the Blackwell Defendants moved a pond on an adjoining piece of property. They also re-sodded the grass and watered it for a period of two weeks, after which it became Plaintiffs' responsibility to water.
At some point after the units had been turned over to Plaintiffs and complaints had been made about water problems, Chris Blackwell discovered that the Cory Drive property was not built in accordance with the elevations specified by DBS. DB S signed an "as-built" certification in April 2007, which, according to Neely, meant that DBS was satisfied "that the grading and drainage modifications intended by [its] original plan had been satisfied." (Neely Depo. at 79).
As indicated, DBS performed site design services for the units being constructed by Blackwell Construction on Ringgold Court, Stephanie Drive, and Cory Drive and thoseservices were pursuant to a contract with the Blackwell Defendants. Plaintiffs concede that DB S performed its design services relating to both the Ringgold Court and the Stephanie Drive properties in accordance with the applicable standard of care.
As for the Cory Drive property, DBS performed design services on two separate occasions. It prepared the original site grading and drainage plan for the Cory Drive property and claims that, in doing so, it performed hydraulic calculations that considered the effects of the pond on the adjacent piece of property. DBS also provided design services relating to improvements to the pond on the property adjacent to the Cory Drive property. As part of that design, DBS specified that a spillway needed to be added to the pond and the Blackwell Defendants added such a spillway.
Neely, who was hired to inspect the properties, has been retained by Plaintiffs as their expert in this case. He issued his expert report on March 12, 2010. Neely's expert report does not address the Ringgold Drive property and during his deposition he testified that he did not recall hearing any problems about the Ringgold property. Because of that he testified that he was not offering any expert opinion in relation to that property. As for the remaining properties, Neely noted problems with each in his expert report. He did not at that time, however, provide an opinion as to Plaintiffs' alleged damages. Nor did he provide such an opinion during his deposition on May 21, 2010. However, in a supplement to his expert report dated May 24, 2010, Neely indicates that it will cost $11,210.00 to repair the Cory Drive property; $12,112.50 to repair the Stephanie Drive property, and $850.00 to repair the Tower Drive property.2
On May 22, 2009, Plaintiffs filed an eight-count complaint in this Court. With respect to the Blackwell Defendants, Plaintiffs alleged breach of contract (Count I), fraud (Count II)...
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