Hinman v. ValleyCrest Landscaping Development, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JERE HINMAN, )

)

Plaintiff, )

)

v. ) Case No. 3:19-cv-00551

) Judge Aleta A. Trauger

BRIGHTVIEW LANDSCAPE )

DEVELOPMENT, INC. et al., )

)

Defendants. )

MEMORANDUM

Before the Court is the Motion for Summary Judgment (Doc. No. 114), filed by defendant

BrightView Landscape Development, Inc. (“BrightView”), seeking summary judgment on all

remaining claims in this lawsuit. For the reasons set forth herein, the motion will be granted in part

and denied in part.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiff Jere Hinman filed this suit against defendants BrightView, ValleyCrest Landscape

Development, Inc. (“ValleyCrest”), and Aquatic Design & Engineering, Inc. (“ADE”) on July 1,

2019, asserting numerous claims in connection with the defendants’ design and construction of a

$1 million pool and associated hardscaping and other landscaping at Hinman’s home in Lebanon,

Tennessee in 2015 (the “pool” or “pool project”). Because it was established early in these

proceedings that ValleyCrest and BrightView are the same entity, the claims against ValleyCrest

were terminated, and the plaintiff’s claims were permitted to proceed against BrightView. (See

Doc. No. 29, at 37–38; Doc. No. 30.) All claims against ADE have now been dismissed upon the

court’s orders disposing of that defendant’s Motion to Dismiss and subsequent Motion for

Summary Judgment. (See Doc. Nos. 30, 104.) The court also dismissed the claims against

BrightView for fraudulent inducement, fraudulent misrepresentation, and fraudulent omission.1

(Doc. No. 30.) In addition, the indemnity claims asserted by BrightView against third-party

defendants Georgia Gunite and Pool Company (“Georgia Gunite”) and American Commercial

Industrial Electric, LLC have now been dismissed. (Doc. Nos. 106, 149.) The claims that remain

pending in this case are those asserted by Hinman against BrightView for breach of contract (Count

One), breach of express and implied warranty (Count Two), violation of the Tennessee Consumer

Protection Act (“TCPA”) (Count Three), and negligence (Count Seven).2

BrightView seeks summary judgment on all of the remaining claims, in support of which,

in addition to the Motion itself, it has filed a Memorandum of Law (Doc. No. 115), Statement of

Undisputed Material Facts (“SUMF”) (Doc. No. 115), and a substantial quantity of evidentiary

material. The plaintiff has filed a Response in Opposition to the Motion for Summary Judgment

1 The court’s opinion addressing these claims contained an inconsistency, insofar as it

stated in one place that “[t]he motion to dismiss the fraudulent inducement claim . . . will be

denied” (Doc. No. 29, at 37) but also stated, when addressing the specific allegations supporting

the claim, that they were not sufficient to “support a fraudulent inducement claim” (id. at 35). The

finding implicit in the latter statement was reconfirmed in the concluding paragraph of the

Memorandum and in the accompanying Order, both of which stated that the fraudulent inducement

claim was dismissed. (Id. at 38; see also Doc. No. 30, at 1 (“BrightView’s motion (Doc. No. 24)

is GRANTED with respect to the claims against it for fraudulent inducement, fraudulent

misrepresentation, and fraudulent omission.”).) The plaintiff never sought reconsideration or

clarification of the ruling, and the court finds now that the dismissal of the fraudulent inducement

claim, despite one confusing sentence, was clear. Moreover, although the fraud claims were

dismissed without prejudice, the plaintiff has never sought to amend the Complaint to plead these

claims with the particularity required by Rule 9 of the Federal Rules of Civil Procedure.

2 The Complaint also sets forth a claim of conspiracy against both ADE and BrightView

(Count Six). The court granted ADE’s Motion to Dismiss with respect to that claim. BrightView

now asserts that there is no legal support for this claim in light of the fact that the substantive

claims against the alleged co-conspirator, ADE, have been dismissed. (Doc. No. 114-1, at 20 n.14.)

The plaintiff does not address this argument and appears to have abandoned the claim, as she

makes no reference to it in her Response to the Motion for Summary Judgment. This claim will be

dismissed without discussion based on lack of evidence of a conspiracy and abandonment.

(Doc. No. 126) and a Response to the SUMF, in which she objects to the SUMF on the basis that

thirty-one of the defendant’s fifty-five numbered statements are not supported by a citation to the

record, other statements consist of legal argument rather than fact, and others are compound in

nature, setting forth more than one fact (Doc. No. 127, at 2). In light of the defendant’s disregard

of the Local Rules3 and its decision not to seek to revise its SUMF in response to the plaintiff’s

objections, the court has largely disregarded those statements of fact for which the defendant has

not provided evidentiary support, unless the plaintiff does not dispute or object to the statement.

The plaintiff also filed a Statement of Additional Facts in Dispute (“SAFD”) and her own

evidentiary material.4 The defendant filed a Reply and a Response to the SAFD. (Doc. Nos. 136,

137.) The plaintiff, with permission, has filed a Surreply. (Doc. No. 143.) From these materials,

the court has attempted to glean the relevant facts, as follows.5

3 This court’s Local Rules expressly require that each fact set forth in the statement of

undisputed facts must be “supported by specific citation to the record.” L.R. 56.01(b).

4 The court has a preference for complete deposition transcripts rather than multiple filings

of multiple excerpts of the same transcript. Accordingly, where there are multiple filings of the

same transcript or parts thereof, the court will cite the CM/ECF number for the complete deposition

transcript, regardless of which party filed or cites it. Because some of the transcripts are condensed,

with four transcript pages per standard page, and others were filed in more than one volume or

contain cover pages that make their pagination inconsistent with the page numbers assigned by the

court’s electronic docketing system, the court cites the docket number where the transcript can by

located but uses the original deposition transcript pagination.

5 The facts for which no citations are provided are drawn from the plaintiff’s Response to

the Defendants’ Statement of Undisputed Material Facts (Doc. No. 127) or the defendants’

Response to the plaintiff’s Statement of Additional Facts in Dispute (Doc. No. 138) and are

undisputed for purposes of the Motion for Summary Judgment. All statements of fact recited herein

are either undisputed or viewed in the light most favorable to the plaintiff, unless otherwise

indicated.

A. The Contract

On August 24, 2014, Hinman and BrightView6 entered a Standard Form of Preliminary

Agreement Between Owner and Design- Builder (“Preliminary Agreement”) for the design of an

elaborate pool to be constructed at Hinman’s residence in Lebanon, Tennessee. (Doc. No. 114-4,

at 10.) BrightView then hired ADE to create a proposed design and engineering plans for the pool

project.

ADE spent approximately four months creating a detailed set of plans. Its final set of plans

(“Plans) is dated December 23, 2014. One note included in the General Notes section of the Plans

incorporates by reference certain technical specifications (“Specifications”) prepared by ADE.

(See Doc. No. 1-2, at 35 (“The following technical specifications shall apply to this Project: 13 11

00.”).) ADE delivered the referenced Specifications to BrightView on January 8, 2015 (see Doc.

No. 130-5), and it is undisputed for purposes of the Motion for Summary Judgment that the

Specifications were “an important part of the plans” prepared by ADE (Doc. No. 129-1, Mallon

Dep. 55–56).

BrightView submitted a written Pricing Proposal to Hinman on January 16, 2015, offering

to build the pool for $827,500. (Doc. No. 130-2, at 2.) The pricing was “based on the ADE

drawings dated December 23, 2014.” (Id. at 1.)

On March 19, 2015, Hinman and BrightView entered into a Design-Build Contract

(“Contract”) for the construction of the pool. (Doc. Nos. 1-2 through 1-4.) The Plans are attached

as Exhibit B to the Contract, and the Contract expressly incorporates them as part of the

“Agreement” and within the definition of “Contract Documents.” (See Doc. No. 1-2, at 4, 29,

6 The contract was actually executed by the defendant as ValleyCrest, but the record

establishes that ValleyCrest formally changed its name to BrightView in 2016 and that these

entities are one and the same. (See Doc. No. 29, at 37.)

Contract §§ 2.3.1, 14.2; see also id. at 33, Contract Ex. B.) Article 3.1.2 of the Contract states:

“Construction shall be in accordance with the approved Construction Documents.” (Id. at 6.) The

Contract also specifies that the owner (Hinman) would receive written notice of any changes to

the Plans. (Doc. No. 1-2, at 6, 16, Contract § 3.1.2 (“When the Design-Builder submits the

Construction Documents, the Design-Builder shall identify in writing all material changes and

deviations that have taken place from the Design Development Documents or the Contract

Documents in existence at the time of the execution of this Agreement.”); id. § 8.1 (“Change

Orders”), § 8.3 (“Minor Changes”).). However, at the same time they signed the Contract, the

parties also signed an Addendum to the Contract, which incorporates a new § 3.1.2.1 stating:

As construction is progressing, Design-Builder shall be entitled to make changes to

the design, materials, means and methods, and details, without notific[a]tion and

without any required approval. Changes shall be in any form that does not change

the final approved function and architectural look of the project as shown in Exhibit

C [to the Contract].

(Doc. No. 1-5, at 1.) The Addendum also includes the following “Clarification”:

Exhibit B ADE Drawings dated December 31, 2014 are for reference only and to

denote the final look and function of the water feature. Design-Builder

[BrightView] has the authority to make changes to the drawings during the

construction without notification or approval, provided that such change does not

change the final approved function and architectural look of the project as shown

in Exhibit C.

(Id. at 3.) The Contract and Addendum both require the delivery of “as-built” drawings to the

plaintiff documenting any deviations from the Plans. (Doc. No. 1-2, at 8, Contract § 3.2.9; Doc.

No. 1-5, at 1, Addendum § 3.1.2.1.)

The Plans incorporated by the Contract include, among others, the following requirements:

(1) the placement of an expansion joint across the middle of long side of the pool

(see Doc. No. 1-2, Contract Ex. B, at 34, 35, 36);

(2) the addition of Xypex in the concrete mixture used to construct the pool shell

(see Doc. No. 130-5, at 38–39, Specifications § 2.04(R) (“Crystalline Water-

Proofing Additive” defined as “Xypex Admix C-500 by Xypex crystalline

waterproofing materials,” noting “Substitutions: Not permitted,” and specifying

precise dosage to be “added to concrete mix at time of batching”); id. § 2.05(A)(6)

(specifying the Shotcrete Wet-Mix materials should include “Crystalline Concrete

Waterproofing Admixture as specified”); § 2.06 (specifying the addition of

“Cementitious Crystalline Concrete Waterproofing” as a “Mandatory Component”

of the cast-in-place concrete mix, specifying that Xypex Admix C-500 “shall be

provided in the concrete mix at a dosage rate as specified in 2.04S, Crystalline

Waterproofing”); see also Doc. No. 91-8, at 7);

(3) the use of cast-in-place concrete for the pool floor and the use of wet-mix

shotcrete for the pool walls (Doc. No. 91-8, at 5; Doc. No. 131-6, Chapman Dep.

201); and

(4) the use of “no-leak PVC flanges,” preformed fiberglass drain sumps, a vapor

barrier, and a nine-inch overpour, also referred to as a footer or an extension of the

floor beyond the vertical walls (Doc. No. 91-8, at 6–7).

The parties agree that none of these features is typical in a residential pool. (See Doc. No. 137,

Def.’s Resp. ¶ 25.)

B. Deviations from the Contract

There is no dispute, for purposes of the Motion for Summary Judgment, that BrightView

materially deviated from the Plans when it failed to install an expansion joint. However, there is

also no dispute that BrightView installed a retrofitted expansion joint in the Spring of 2016,

pursuant to plans developed by ADE.

There is also no dispute that BrightView (1) did not include Xypex Admixture in the

concrete used for the pool shell walls or floor; (2) did not use cast-in-place concrete for the pool

floor and instead used shotcrete for both the walls and the floor; (3) did not install no-leak PVC

flanges; (4) did not install pre-formed fiberglass sumps but instead used field-formed concrete

sumps; (5) did not include a nine-inch overpour, also referred to as a footer or an extension of the

floor beyond the vertical walls (hereafter, “nine-inch footer”); and (6) did not install a vapor

barrier. These omissions (or construction decisions) are referred to by the plaintiff collectively as

the “Deviations.” BrightView did not seek approval from ADE for these Deviations or tell the

plaintiff about them.

BrightView does not dispute that the pool as built does not incorporate the above-

referenced features. It disputes whether it was actually required by the Contract to include them

and, further, whether the failure to do so, even if technically required by the terms of the Contract,

constitutes a material breach of the Contract. Hinman asserts that the Deviations were material,

citing the report of its proposed expert, David Chapman, and the deposition of ADE’s

representative, Ken Martin.

In his Report, Chapman opines, in relevant part, that (1) the retrofitting of the expansion

joint “created two construction joints parallel to the expansion joint that may be susceptible to

leaking in the future,” but this problem would not exist if the expansion joint had been “installed

as shown in the plans”; (2) the failure to install “no-leak PVC flanges” at pipe penetrations in the

pool shell “more likely than not result in an increased risk of leaks at plumbing penetration in the

future”; (3) the failure to use Xypex Admixture “has resulted in the pool shell being materially

more permeable than it would have been had the Xypex been included and may be contributing to

leaks in the pool shell”; (4) the failure to use “preformed drain sumps” “may have caused or

contributed to leaks in the pool shell”; (5) the absence of a vapor barrier on the outside of the pool

shell “has more likely than not resulted in increased expos[ur]e to subsurface moisture that may

increase the likelihood of rebar deterioration”; and (6) together, the failure to use Xypex and no-

leak PVC flanges has “resulted in a pool shell that is materially less waterproof than the pool

described by the Plans and Specifications.” (Doc. No. 91-8, at 7–8.)

At the same time, Chapman agrees with the findings of another of the plaintiff’s proposed

experts, Luke Brown, that there is no evidence that the pool shell itself is leaking,7 no evidence

that the rebar or reinforcing steel is corroding because of the lack of a vapor barrier, no evidence

that the pool is losing water at the sumps or the places where the plumbing penetrates the shell,

and no evidence that the lack of Xypex is contributing to leaks. (Doc. No. 131-6, Chapman Dep.

157; see id. at 203–04 (“I agree with you that [Brown’s report] says that he did not observe leaking

anywhere other than the . . . expansion joint.”), 204 (“I don’t know of any leaks . . . . I know that

[Brown] did not find any evidence of any leaks. . . . I don’t have any evidence that any leaks can

be directly attributed to the lack of Xypex.”), 204–05 (confirming he had no evidence of corrosion

of the reinforcing steel), 207 (confirming he had no opinion as to whether the absence of the vapor

barrier was contributing to the leaking of the expansion joint or the shell), 208 (confirming that he

had no opinion as to whether the cracks he observed in the pool shell were causing any leaking),

212 (confirming he had no “evidence . . . that the sumps or drains in this pool are causing any leak

in the pool shell”).)

In other words, Chapman does not purport to opine that any of the Deviations, individually

or collectively, is currently causing leakage. He states that the Deviations have increased the risk

of future leaks, but he has not quantified what the risk of future leaks would be if BrightView had

followed the Plans and Specifications to the letter or to what degree its failure to do so has

increased that risk.

Ken Martin, who at the time of his deposition was designated as then-defendant ADE’s

30(b)(6) witness, testified that he believed that the “nine-inch overhang” incorporated in ADE’s

Plans was “important” for “retaining wall purposes.” (Doc. No. 130-1, Martin Dep. 174–75.)

7 Aside from the possible leaks along the expansion joint, which is addressed below.

Chapman, however, testified regarding the absence of the nine-inch footer that, although this

constituted a “deviation of the plans,” the “structure” of the pool was nonetheless “capable, in [his]

opinion, of supporting the loads that are on it as it has been constructed.” (Doc. No. 131-6,

Chapman Dep. at 218.) Regarding the absence of Xypex, Martin testified that it was “possible that

the Hinman pool is just losing water that’s weeping through the shell,” possibly exposing the

reinforcing steel to moisture, which would leave to corrosion and failure. (Doc. No. 130-1, Martin

Dep. at 176–77.) Martin, however, has not been designated as an expert, and Chapman and Brown,

as set forth above, did not find that the shell was leaking or any evidence of corroding steel.8

There is a dispute about whether the “as-built” plans BrightView delivered to the plaintiff

in 2015 show the Deviations. The plaintiff claims they do not, while the defendant claims they do,

both citing Joe Mallon’s deposition. Mallon, BrightView’s Operations Manager (Doc. No. 129-1,

Mallon Dep. 14), testified that, although the Contract called for the delivery of as-built drawings

to be delivered to Hinman, the set that was delivered did not note each of the Deviations at issue

here (id. at 40, 77). However, BrightView prepared and delivered new as-built drawings during

the course of this litigation. (Id. at 78–79; Doc. No. 131-9, Ferrell Dep. 38–40, 109–10.)

8 Although not relevant for purposes of the defendant’s Motion for Summary Judgment,

the defendant’s designated expert, Douglas Ferrell, opines that the shotcrete floor of the pool is

eight inches thick while the walls are nine inches thick, both with reinforcing steel, and that this

the structure “meets and exceeds a typical commercial-grade thickness for shotcrete water features

and pools”; there was no cost-saving to BrightView in using shotcrete rather than cast-in-place

concrete, as it is typically more expensive per yard to place; the use of shotcrete was a better choice

for the “natural appearance Ms. Hinman desired, and would be of equal quality and strength” as a

cast-in-place construction; he has never seen Xypex (or any other crystalline admixture) used for

an in-ground residential or commercial grade swimming pool or water feature and, instead, has

only seen it used in elevated vaults encasing above-ground pools in high-rise buildings; there is no

industry requirement for the use of an admixture like Xypex to be added to an in-ground pool; the

use of shotcrete obviated the need for a nine-inch overpour or footer, no-leak flanges, and

preformed sumps; the use of a vapor barrier would have been completely unnecessary and in any

event would not have survived the placement of the shotcrete; and he has never seen a vapor barrier

used beneath a pool in this manner. (Doc. No. 114-7, at 62–66.)

C. The Current Problems With the Pool

As for ongoing problems, there are visible cracks in the plaster surface of the pool shell.

(Doc. No. 131-6, Chapman Dep. 207–08; Doc. No. 148-1, Hinman Dep. 156, 165.) There is no

evidence that these cracks are leaking. (Doc. No. 91-9, at 2; see also Doc. No. 131-7, Brown Dep.

11 (agreeing with the statement in his report “[i]nspected shell; no leaks found; cracks in plaster

not leaking”); Doc. No. 131-6, Chapman Dep. 208.)

According to the plaintiff, rebar was not properly installed in the pool. This assertion is

based on Cook’s observation of photographs taken during the pool construction. (See Doc. No.

131-3, Cook Dep. 147–52.) Cook did not include that information in his Report, but he testified

that it was the basis for his statement in his Report that he agreed with Chapman’s opinion that the

pool could continue to crack. (Id. at 152–53.) Chapman testified that his statement in his Report

about the rebar referred to his finding that there was no evidence that the rebar extended outside

the perimeter of the pool floor, as was called for by the Plans specifying the inclusion of the nine-

inch footer at the base of the pool walls. (Doc. No. 131-6, Chapman Dep. 149–50.) As set forth

above, however, there is no evidence either of problems with the rebar or with the structural

integrity of the walls.

It is undisputed that the concrete finish over the manmade waterfalls that constitute part of

the pool project (“water features”) is chipping and cracking in multiple places. According to the

defendant, the concrete that is cracking is the “thematic coating,” not a structural part of the water

features and, as such, is a purely cosmetic maintenance item that may have been caused by the

plaintiff’s failure to use the water features. BrightView’s designated expert, Douglas Ferrell,

explained that the top layer of the water features is called a “thematic coat.” (Doc. No. 131-9,

Ferrell Dep. 127.) The thematic coat is applied over a “PVC liner,” which is applied over the

concrete and rebar structure of the water feature. (Id. at 128, 130; see also Doc. No. 131-6,

Chapman Dep. 154.) Ferrell explained that the thematic coat for the water features is made of

concrete with “large aggregate . . . that creates the look of the stream.” (Doc. No. 131-9, Ferrell

Dep. 143–44.) Ferrell opined that the “thematic coat here wasn’t thick enough. It should have been

thicker,” at least in some places. (Id. at 127–28.) He stated that the remedy for this problem would

be to reapply the thematic coating, which would not be expensive. (Id. at 128–29, 146).) He

testified that this was not a structural problem but simply a cosmetic issue. (See id. at 129.) The

plaintiff’s damages expert, Douglas Cook, opined that removing the failing concrete would

damage the liner underneath and that the rough concrete (which he characterized as a design flaw)

should be replaced by “smooth and appropriate river stones . . . covering a pond liner,” at a cost of

approximately $90,000 to $100,000 to repair all three water features. (Doc. No. 125-7, at 4.)

The plaintiff has presented evidence that the pool is losing water over and above the loss

that would be expected from evaporation alone and, more specifically, that the pool is leaking in

several places along the retrofitted expansion joint. (See Doc. No. 91-8, at 37; Doc. No. 131-7, at

39–40; Doc. No. 91-9, at 1.) One of Hinman’s expert witnesses, David Chapman, performed a

water loss test in November 2019, and the test results confirmed significant water loss. (Doc. No.

91-8, at 10.) Another expert, Luke Brown, performed a dye test in the summer of 2022 and

confirmed that the pool was leaking in several places along the expansion joint. (Doc. No. 91-9, at

1, 2; Doc. No. 131-7, Brown Dep. 42–43, 47, 51.) BrightView contends that the plaintiff does not

have competent evidence of such water loss or that the pool is leaking along the expansion joint,

for the reasons set forth in its Daubert motion (Doc. No. 125).9

9 Contemporaneously with this ruling, the court is issuing a Memorandum and Order

granting in part BrightView’s Motion to Exclude the Testimony of Plaintiff’s Expert Witnesses

(Doc. No. 125). As relevant here, the court denies that motion, insofar as it seeks to exclude

Brown’s opinion that the pool is leaking along the expansion joint and Chapman’s opinion that the

The plaintiff’s estimated cost to replace the expansion joint is $12,000. (Cook Report, Doc.

No. 125-7, at 6, 13.) Based on the bid submitted, it is unclear whether this cost includes actually

replacing the expansion joint or entails simply resealing it. (See id. at 13.) The estimated cost to

retroactively add Xypex to the pool, according to Chapman, is $181,995. (Doc. No. 91-8, at 8, 43;

see also Doc. No. 125-7, at 6.) BrightView also objects to this evidence in its Daubert motion.

It is undisputed that the operation and maintenance manual Brightview provided to Ms.

Hinman does not include information on maintaining an expansion joint. No one instructed

Hinman on how to maintain the expansion joint after it was installed. (Doc. No. 148-1, Hinman

Dep. 207–08.)

D. The Plaintiff’s Knowledge of the Problems

The pool was substantially complete and turned over to Hinman on September 13, 2015.

Hinman submitted her final payment for the pool on October 6, 2015, along with a letter

documenting that Hinman had withheld $10,000 from the amount reflected in the final invoice and

would remit the final $10,000 upon the defendant’s “contacting [her] regarding plant care as well

as giving an allowance for the dead and dying plants.” (Doc. No. 148-6; Doc. No. 148-1, Hinman

Dep. 105.)

According to Hinman, however, the pool never reached a “final” date of completion,

because she “had issues” with the pool from the time it was turned over to her in September 2015.

(See, e.g., Doc. No. 148-1, Hinman Dep. 106–07 (“[T]he pump area wasn’t completed. Derek [a

BrightView employee] stayed on after September 13th because it wasn’t working. . . . It must have

been [working when he left]. [S]everal days later, it wasn’t. It has never worked properly. So it

pool, as of the testing he had performed in November 2019, was losing a substantial quantity of

water.

may have worked for 24 hours.”); id. at 109 (“The boulders have never been correct.”); 148–49

(describing the “vacuum system” as “impossible to use” and a “piece of junk” and stating she knew

about the problems with it the first time they tried to use it in 2015).)

In November 2015, Hinman discovered that the pool was leaking. BrightView immediately

investigated and it was at this time that BrightView discovered that it had failed to install the

expansion joint. As set forth above, BrightView worked with ADE to come up with a plan to install

a retrofitted expansion joint and to repair the cracks. BrightView performed this work in April and

May 2016.

The plaintiff maintains that, as of December 2017, the pool was “still” losing water. (See

Doc. No. 136-3, at 32, Mallon Dep. Ex. 56.)

In May 2018, Ken Martin of ADE visited Hinman’s pool at her request, as she was still

complaining of ongoing problems with the pool. (See Martin Dep. Ex. 31, Doc. No. 114-5, at 69–

70.) He later wrote up an “Observation Report,” which he apparently provided to Brian Chesnut

of BrightView.10 (Id. at 72–73.) He reported that Hinman suspected at that time that the pool was

leaking around the expansion joint, and the primary purpose of Martin’s visit was to inspect the

expansion joint. (Id. at 72.) Martin reported that the joint appeared to be in good condition and that

Hinman’s employee, Paige Herriges, told him and Hinman that, although there had been suspected

leaks in the past, she did not believe the pool was currently leaking. (Id. at 73.) According to

Martin, he told Hinman and Herriges that they “might have a local pool technician perform an

underwater observation of the underwater joint to discern possible routine maintenance issues.”

(Id.)

10 Chesnut’s role in BrightView has not been made clear. Ken Martin’s Observation Report

is addressed to Chesnut as “Vice President/Branch Manager” of BrightView. (Doc. No. 114-5, at

72.)

On October 31, 2018, Hinman wrote to BrightView stating that the pool had lost six inches

of water in six days, despite rain for part of that period. She wrote, “The pool is leaking, as we

have explained repeatedly for the past three and a half years.” (Id. at 67.) Hinman also testified

that she and Herriges performed a dye test in November 2018 and discovered the expansion joint

was leaking. (Doc. No. 148-1, Hinman Dep. 136, 206.)

For purposes of the Motion for Summary Judgment, Hinman does not dispute

BrightView’s (unsupported) assertion that it came back “several times over the time period of 2015

through 2018 working on the pumps and other issues.” (Doc. No. 127, ¶ 19 and Response.)

For purposes of the Motion for Summary Judgment, Hinman does not dispute

BrightView’s (unsupported) assertion that it assisted her in finding two different pool maintenance

companies. According to the plaintiff, however, neither was able to maintain the pool. (See Doc.

No. 129-1, Mallon Dep. 106–09.) According to Joe Mallon, Hinman “was having problems getting

maintenance people. She could not find anybody. . . . [I]t became quite evident that nobody could

maintain the pool correctly, and it just . . . kept leading to problem after problem after problem.”

(Id. at 106–07.) Joe Mallon believed the pool “was too much for just about everyone that tried [to

maintain it].” (Id. at 109.) Although the plaintiff agreed, in principal, that “poor or improper

maintenance” is not covered by the pool’s warranty and was not BrightView’s responsibility, she

also believes that the pool as built was “impossible to maintain” because it never worked properly.

(Doc. No. 148-1, Hinman Dep. at 98–99.) Hinman concedes that she has not employed a pool

maintenance company since July 2016. In the absence of a pool maintenance company, Hinman

has had various employees assist her with trying to maintain the pool. (Doc. No. 148-1, Hinman

Dep. 135, 150–51.) She asserts that, despite having tried repeatedly, she has been unable to employ

a pool maintenance company that is both knowledgeable and familiar with the equipment and

operations of a complex pool like hers and willing to make multiple weekly service trips to her

home in rural Wilson County. (See Doc. No. 127, Pl.’s Resp. ¶ 43.)

II. LEGAL STANDARD

Summary judgment is appropriate where there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “By its very

terms, this standard provides that the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986) (emphasis in original). In other words, even if genuine, a factual

dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion

for summary judgment. On the other hand, “summary judgment will not lie if the dispute about a

material fact is ‘genuine.’” Id.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of

Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying and

citing specific portions of the record—including, inter alia, depositions, documents, affidavits, or

declarations—that it believes demonstrate the absence of a genuine dispute over material facts.

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P.

56(c)(1)(A). If the non-moving party asserts that a fact is genuinely disputed, it generally “must

support the assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.

56(c)(1)(A); see also Pittman, 901 F.3d at 628 (“The nonmoving party ‘must set forth specific

facts showing that there is a genuine issue for trial.’” (quoting Anderson, 477 U.S. at 250)). The

court must view the facts and draw all reasonable inferences in favor of the non-moving party.

Pittman, 901 F.3d at 628. Credibility judgments and the weighing of evidence are improper.

Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018).

III. ANALYSIS

BrightView argues that it is entitled to summary judgment on all remaining claims, on the

grounds that: (1) all remaining claims are barred by the three-year statute of limitations governing

“actions for injuries to . . . real property,” Tenn. Code Ann. § 28-3-105(1); (2) the breach of

contract claims fail for lack of evidence that the purported breaches are material or gave rise to

any damages or, with respect to some of the alleged breaches, that any breach of contract occurred;

(3) the breach of warranty claims are barred by the express waiver language in the Contract; (4)

the TCPA claim, besides being barred by the statute of limitations, fails for lack of evidence of

any misrepresentation, deception, or unfairness; (5) the negligence claim, aside from being barred

by the statute of limitations, fails for lack of evidence that BrightView breached any duty to the

plaintiff and, in any event, is barred by the economic loss doctrine. Hinman maintains that material

factual disputes preclude summary judgment.

A. Breach of Contract Claim

1. Statute of Limitations

BrightView argues that the breach of contract claims are barred by the three-year statute of

limitations found at Tenn. Code Ann. § 28-3-105(1), which governs tort “actions for injuries to . . .

real property.” As the plaintiff correctly points out, this provision does not apply to her breach of

contract claim which, instead, is governed by the six-year limitations period that pertains to

“[a]ctions on contracts not otherwise expressly provided for.” Tenn. Code Ann. § 28-3-109(a)(3).

As this court already held in denying BrightView’s Rule 12(b)(6) motion seeking dismissal

of the breach of contract claims on the same basis, BrightView’s arguments to the contrary rely on

outdated caselaw that has been clearly superseded by the Tennessee Supreme Court’s decision in

Benz-Elliott v. Barrett Enterprises, 456 S.W.3d 140 (Tenn. 2015). In that case, the court clarified,

as relevant here, that, “in choosing the applicable statute of limitations, courts must ascertain the

gravamen of each claim, not the gravamen of the complaint in its entirety.” Id. at 149, quoted in

Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV, 2022 WL 1404357, at

*11 (Tenn. Ct. App. May 4, 2022).11 The test for determining the gravamen of a particular claim

requires the court to “first consider the legal basis of the claim and then consider the type of injuries

for which damages are sought.” Id. at 151. This court has already conducted that analysis and

concluded that the six-year statute of limitations applies to Hinman’s breach of contract claims. It

adopts and reaffirms that conclusion here:

In support of the [breach of contract claim], the plaintiff alleges the existence of an

enforceable contract, a copy of which was filed as an exhibit to her Complaint and

substantial portions of which are quoted in the Complaint. She alleges numerous

specific ways in which BrightView breached the Contract. (Doc. No. 1 ¶¶ 17(A)–

(D), 31(A)–(N).) And she asserts that she suffered damages arising from

BrightView’s breaches of the agreement. (Doc. No. 1 ¶ 35.) Under Tennessee law,

all a plaintiff is required to allege to state a claim for breach of contract is (1) the

existence of an enforceable contract, (2) non-performance amounting to breach

thereof, and (3) resulting damages. See, e.g., Ingram v. Cendant Mobility Fin.

Corp., 215 S.W.3d 367, 374 (Tenn. Ct. App. 2006). The plaintiff has clearly alleged

those elements here.

For damages related specifically to the alleged non-performance amounting to

breach of the Contract, the plaintiff seeks rescission, damages related to the cost of

removing the non-conforming pool and replacing it with a “pool conforming to the

11 BrightView’s reliance on Simpkins is curious, because it clearly relies on Benz-Elliott

and rejects the other opinions cited by BrightView in light of the clarification offered by Benz-

Elliott. In addition, Simpkins holds that the plaintiffs’ breach of contract and breach of warranty

claims related to the purchase of a newly constructed home were subject to the six-year statute of

limitations, even though their tort claims for “injury to their real property” were subject to a three-

year limitations period. Simpkins, 2022 WL 1404357, at *13, 25.

Contract,” liquidated damages resulting from the failure to meet the contractual

Date of Substantial Completion, plus other “incidental and consequential damages”

arising from the alleged breach of contract. Although the plaintiff also seeks other

damages that are not available as remedies for breach of contract, these particular

damages clearly arise from, and are related to, the alleged breach of contract. . . .

The court concludes that “the legal basis of the claim is breach of contract and the

damages sought . . . are for breach of contract.” Benz-Elliott, 456 S.W.3d at 152.

Consequently, the breach of contract claim is governed by the six-year statute of

limitations applicable to “[a]ctions on contracts not otherwise expressly provided

for.” Tenn. Code Ann. § 28-3-109(a)(3).

Hinman v. ValleyCrest Landscape Dev., Inc., No. 3:19-CV-00551, 2020 WL 434161, at *17 (M.D.

Tenn. Jan. 28, 2020).

In short, the breach of contract claims, including claims for breach of express or implied

warranty, are subject to the six-year limitation period provided by Tenn. Code Ann. § 28-3-

109(a)(3), not the three-year limitations period set forth in Tenn. Code Ann. § 28-3-105(1). Accord

Benz-Elliott, 456 S.W.3d at 152; Simpkins, 2022 WL 1404357, at *13. They are not time-barred.

2. Merits of the Claim

Under Tennessee law, “[t]he essential elements of any breach of contract claim include (1)

the existence of an enforceable contract, (2) nonperformance amounting to a breach of the contract,

and (3) damages caused by the breach of the contract.” ARC LifeMed, Inc. v. AMC-Tenn., Inc., 183

S.W.3d 1, 26 (Tenn. Ct. App. 2005) (citation omitted). Here, the parties do not dispute the

existence of an enforceable contract. BrightView contends that Hinman cannot establish that some

of the alleged nonperformance on which her claim is premised either were not part of the contract

at all or were not material parts of the contract or did not cause damages (precisely because they

were not material).

Tennessee courts look to § 241 of the Restatement (Second) of Contracts to determine

whether a breach of contract is material. Forrest Constr. Co., LLC v. Laughlin, 337 S.W.3d 211,

225 (Tenn. Ct. App. 2009) (citations omitted). The factors identified by the Restatement as

“significant” include:

(a) the extent to which the injured party will be deprived of the benefit which he

reasonably expected;

(b) the extent to which the injured party can be adequately compensated for the part

of that benefit of which he will be deprived;

(c) the extent to which the party failing to perform or to offer to perform will suffer

forfeiture;

(d) the likelihood that the party failing to perform or to offer to perform will cure

his failure, taking account of all the circumstances including any reasonable

assurances;

(e) the extent to which the behavior of the party failing to perform or to offer to

perform comports with standards of good faith and fair dealing.

Restatement (Second) of Contracts § 241, quoted in Archer v. Noonan, No. M2020-01266-COA-

R3-CV, 2021 WL 3662357, at *4 (Tenn. Ct. App. Aug. 18, 2021).

As now relevant, Hinman claims that BrightView breached the Contract by failing to

construct her pool in accordance with ADE’s Plans and Specifications (Art. 3.1.2); by failing to

give her change orders and the “as-built” documents showing its deviations from the Plans and

Specifications until this lawsuit was underway (Art. 3.2.9); by failing to complete the pool in

accordance with the schedule provided by the Contract (Art. 3.2.4) and failing to pay liquidated

damages for each day it failed to reach substantial completion of the project after the projected

completion date (Art. 6.4.1.1); by failing to perform its warranty obligations (Art. 3.7.1); and by

failing to promptly correct defective work (Arts. 3.8.1 and 3.8.2).

It is unclear whether the plaintiff is still pursuing a claim based on BrightView’s failure to

provide her with change orders. Regardless, there is no evidence of the existence of actual change

orders that were not provided. (See, e.g., Doc. No. 129-1, Mallon Dep. 35, 42, 45–46, 75–76, 124–

25.) Likewise, it appears to be undisputed that BrightView delivered a set of as-built Plans during

the course of discovery in this case. (Id. at 78–79; Doc. No. 131-9, Ferrell Dep. 38–43.) While

actual as-builts might have revealed the Deviations, Hinman has not shown, as discussed below,

that the Deviations materially altered the pool or that she was in any way harmed by not having

received more accurate as-built plans sooner than she did. It is unclear, therefore, how she was

harmed by not timely receiving accurate as-built Plans.

It is clear, in any event, that the Deviations are now the primary focus of the plaintiff’s

breach of contract claim. Regarding BrightView’s use of shotcrete instead of cast-in-place

concrete, the plaintiff has not shown that this change impacted the aesthetic appeal of the pool,

impacted its functioning, diminished its value, made the pool more difficult to maintain, or

otherwise resulted in any diminution in the value of the pool. Her own expert testified that the

“basic distinction” between the two was in “how the concrete is placed.” (Doc. No. 131-5,

Chapman Dep. 28.) “Shotcrete is still concrete. It still has the same basic ingredients and it still

cures over a period of time . . . .” (Id. at 31.) According to Chapman, even before the parties

finalized the Contract, BrightView had received a bid from Georgia Gunite to perform the concrete

work on the pool shell, and BrightView specifically requested a proposal that included a

“monolithic shotcrete pool shell” with no expansion joint, instead of a pool with shotcrete walls

but a cast-in-place floor, with an expansion joint. (See Doc. No. 91-8, at 5.) Chapman is of the

opinion that the Contract, because it incorporated the Plans and Specifications, required a cast-in-

place concrete floor. (Id. at 5; see id. at 8 (“[BrightView] deviated from the requirement of the

plans by using a shotcrete type construction method in-lieu of a cast-in-place construction method

for the pool and the waterfalls.”).) He also conceded, however, that a contractor’s pricing proposal

to Hinman is generally based on the bids it received from its subcontractors. The bid from Georgia

Gunite, did not mention Xypex or cast-in-place construction. (Doc. No. 131-6, Chapman Dep.

184–85.) There is no actual evidence in the record that BrightView charged Hinman a higher price

for cast-in-place concrete but used a less expensive shotcrete method of installation (or, in fact,

that shotcrete is less expensive). Moreover, although Chapman opines that the use of shotcrete for

the pool floor constituted a deviation from the Contract, he does not state that the use of shotcrete,

per se, resulted in any diminution in the value of the pool or that shotcrete made the pool less

structurally sound, more difficult to maintain, or more likely to leak in the future. In short, neither

his testimony nor that of Hinman suggests that the use of shotcrete gave rise to any damages. The

plaintiff has not shown that the use of shotcrete in any sense deprived her of the benefit of the

bargain with BrightView. This deviation was not material.

Likewise, regarding the footer, Chapman testified that, although its absence was a

“deviation from the plans,” the structure was nonetheless “capable, in [his] opinion, of supporting

the loads that are on it as it has been constructed,” particularly because “[t]he loads are so small

with respect to the capacity of what was built.” (Doc. No. 131-6, Chapman Dep. 218.) In other

words, the absence of the footer did not materially affect the structural integrity of the pool and

has not given rise to damages.

As for the other Deviations, Chapman’s Report, as set forth above, states that the absence

of no-leak flanges gives rise to an “increased risk of leaks at plumbing penetration in the future”;

the failure to install preformed drain sumps “may have caused or contributed to leaks in the pool

shell”; and the absence of a vapor barrier “has more likely than not resulted in increased expos[ure]

to subsurface moisture that may increase the likelihood of rebar deterioration.” (Doc. No. 91-8, at

8.) However, Chapman also testified that he accepted Luke Brown’s conclusion that the pool shell

is not currently leaking, so there is no pool shell leakage to be linked to the absence of preformed

drain sumps. He agreed that there is no evidence of rebar deterioration and, in fact, no evidence

that the pool shell is leaking. Perhaps in recognition of these deficiencies, Chapman emphasizes

that, among all of the noted Deviations, “the failure to include the waterproofing admixture Xypex

and the failure to install the ‘no leak PVC flanges’ have resulted in a pool shell that is materially

less waterproof than the pool described by the Plans and Specifications.” (Id.)

The problem with that assertion is that Chapman conceded in his deposition that there is

no evidence that the absence of Xypex is actually causing any leaks in the pool. (See Doc. No.

131-6, Chapman Dep. at 204 (“No, I don’t have any evidence that any leaks can be directly

attributed to the lack of Xypex.”).) He also is not able to meaningfully quantify how waterproof

the pool is now, without Xypex, or how much more waterproof it would have been with the

addition of Xypex products. He does not attempt to quantify the likelihood of future leaking. He

simply indicates that there is some nebulous increased future risk of leakage. In his deposition, he

testified that concrete with Xypex is “much less permeable, and much more waterproof than

concrete is without it.” (Doc. No. 131-5, Chapman Dep. at 57.) The court finds that the conclusory

nature of Chapman’s testimony—that there is an increased risk of possible future leaks associated

with the all of these various Deviations from the Plans and Specifications—is insufficient to

establish that the identified Deviations individually or collectively amount to a material breach of

the contract or gave rise to actual damages.

The plaintiff herself does not claim that any of the Deviations has resulted in a visually less

appealing or less functional pool, or that they made the pool more difficult to maintain. She has

not presented any evidence that the value of the pool has been significantly reduced or, indeed,

that the cost of the pool was in any way premised upon the items that BrightView left off. In other

words, she has not shown that she was deprived of any actual benefit expected under the terms of

the Contract. The court finds, based on a review of all of the evidence in the light most favorable

to the plaintiff, that no reasonable jury could find that the Deviations from the contract constitute

material breaches thereof or that they gave rise to anything other than entirely speculative damages.

To the extent her breach of contract claim is premised on the Deviations, BrightView is entitled to

summary judgment on the claim. In addition, BrightView’s failure to notify her or ADE about

these changes or to obtain ADE’s approval of them is also not material and does not constitute a

material breach of contract.

However, the plaintiff points to other alleged breaches of the Contract in her Responses to

the Motion for Summary Judgment and the SUMF: “The waterfall concrete is breaking apart. In

addition, the pool is too complicated to maintain, it cracks, it loses water, and it was not timely

delivered even though the Contract provides that time is of the essence.” (Doc. No. 126, at 12; see

also Doc. No. 127, Resp. ¶ 14 (“Brightview delivered a pool that is unworkably complicated. . . .

Brightview improperly installed the concrete on the waterfalls. . . . BrightView did not deliver the

project on time. . . .”).)

Regarding the maintenance of the pool, the plaintiff cannot establish that BrightView

contracted to build a pool that would be easy to maintain or that it contracted to assist with the

maintenance of the pool (even though it apparently tried to assist the plaintiff with maintenance)

or that the complex nature of the pool in any sense constitutes a breach of the Contract. In addition,

there is no evidence in the record establishing that the cracks of which the plaintiff complains are

causing the pool to lose water or that they are anything other than a cosmetic or maintenance issue.

There is evidence, however, that the water features were poorly installed, with the top layer

of concrete not being sufficiently thick and now chipping or crumbling. (Doc. No. 131-9, Ferrell

Dep. 127–28.) Thus, there is (at least) a question of fact as to whether, as the defendant claims,

this is simply a maintenance issue for which the plaintiff bears responsibility or whether, instead,

the defendant is responsible for the problem.

Regarding the timeliness issue, the Contract provides for liquidated damages in the amount

of $250 per day for “each Day that Substantial Completion extends beyond the Date of Substantial

Completion.” (Doc. No. 1-2, at 15.) The plaintiff asserts that the Contract called for completion of

the pool within fourteen weeks after construction began, or June 29, 2015, but the pool was not

substantially completed until September 13, 2015, at the earliest, or seventy-six days past the

Substantial Completion Date. (Doc. No. 148-1, Hinman Dep. 56; Doc. No. 1-2, at 15, Contract art.

6.4.) BrightView argues that the plaintiff waived her right to enforce this provision by submitting

final payment without reference to her right to liquidated damages under the Contract. Waiver is

the intentional, voluntary relinquishment of a known right. Vanderbilt Univ. v. DiNardo, 174 F.3d

751, 757 (6th Cir. 1999) (citing Chattem, Inc. v. Provident Life & Accident Ins. Co., 676 S.W.2d

953, 955 (Tenn. 1984)). In addition, “a waiver of a contractual right must be clear and

unequivocal,” and Tennessee law further requires either consideration or an element of estoppel

for a contractual waiver.” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (citations omitted).

The court finds that there is a question of fact as to whether the plaintiff waived enforcement of

this provision.

Perhaps most importantly, irrespective of the lack of evidence that the pool shell itself is

leaking or that the alleged contract deviations have contributed to or caused leaks, the plaintiff has

presented competent evidence that the pool is leaking and has been leaking for sometime and that,

despite notice, BrightView has failed to correct the problem. The pool began losing water in late

2015, shortly after its completion. Although the problem seemed to have been ameliorated with

the installation of the retrofitted expansion joint in the spring of 2016, the plaintiff provided notice

in the fall of 2017 that the pool was “still leaking.” (See Doc. No. 114-4, at 33.) By the spring of

2018, when the pool was reopened, the plaintiff suspected, but had not verified, that the leaking

was related to the expansion joint. In the fall of 2018, Hinman again notified BrightView that the

pool was still leaking. Jeff Stauffer advised her to use the dye test kit he had left for her to try to

find out where it was losing water. She did and concluded that the expansion joint was leaking.

(Doc. No. 148-1, Hinman Dep. 136, 206.)

The plaintiff paid for a pool that does not leak. The evidence she has presented suggests

that the pool has leaked on and off since it was installed. Although the defendant contests the

ability of the plaintiff or her designated experts to testify regarding the source of the leak or even

that the pool is leaking, the plaintiff herself is competent to testify that the pool is losing water,

and her experts’ testimony simply serves to further corroborate her first-hand observations

regarding her water bills and the constantly lowering water level. There is, at the very least, a

question of fact as to whether the pool is leaking, and no evidence that anything other than faulty

pool construction would be to blame for the water loss.

In sum, the defendant is not entitled to summary judgment on the plaintiff’s breach of

contract claim related to the damaged water features, the timeliness of completion, or the pool’s

continued leaking problem. In other respects, however, the plaintiff’s breach of contract claim fails

for lack of evidence of materiality or damages.

B. Breach of Implied and Express Warranties

The plaintiff claims that BrightView breached an express warranty in the Contract by

“using equipment and material that was not in conformance with the Contract, including, but not

limited to, using material that was not of good quality, including the sprinkler system, pump

system, electrical system, and other equipment, and by failing to replace dead plant life as

required.” (Doc. No. 1 ¶ 38.) She also asserts that the defendant breached implied warranties of

merchantability and fitness for a particular purpose regarding the pool system. The defendant seeks

summary judgment on the warranty claims on the grounds that the Contract expressly waives them.

The Contract contains the following language under the heading “Warranty”:

3.7.1. The Design-Builder warrants that all materials and equipment furnished

under this Agreement will be new unless otherwise specified, of good quality, in

conformance with the Contract Documents, and free from defective workmanship

and materials. Warranties shall commence on the date of Substantial Completion

of the Work. Design-Builder will replace any plant life that dies or is in distress and

repair erosion that occurs during the warranty period.

3.7.2. . . . To the extent products, equipment, systems, or materials incorporated in

the Work are specified by the Owner but purchased by the Design-Builder and are

inconsistent with selection criteria that otherwise would have been followed by the

Design-Builder, the Design-Builder shall assist the Owner in pursuing warranty

claims. ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING

THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF

FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.

(Doc. No. 1-2, at 10, Contract § 3.7.1, 3.7.2.)

The plaintiff now argues that BrightView “breached its express warranty by making the

Deviations from the Plans” and that the “disclaimer of implied warranties does not apply with

respect to Hs. Hinman’s claims.” (Doc. No. 126, at 15.) In other words, the plaintiff is simply

recasting her breach of contract claims as breach of warranty claims. To that extent, they are

redundant of the breach of contract claims, and the court has already found that the plaintiff’s

breach of contract claims arising from the Deviations fail for lack of evidence that the Deviations

are either material or gave rise to actual damages.

The plaintiff has made it clear that she is no longer complaining—as she did in the

Complaint—about the dead landscaping. In any event, with regard to the landscaping, the record

establishes that Hinman “elected to accept Defective Work rather than require its removal and

correction,” when she unilaterally adjusted the Contract Price to “equitably adjust[] for any

diminution in the value of the Project caused by such Defective Work.” (Doc. No. 1-2, at 11–12,

Contract § 3.8.7.)

With regard to the plumbing and mechanical equipment, David Chapman did not purport

to offer any opinion regarding the functioning of that equipment, and Douglas Cook testified that

the equipment conformed with the Plans and was of good quality. (Doc. No. 131-4, Cook Dep.

178; see id. at 182 (agreeing that “all of [the mechanical equipment BrightView installed was]

called out in the design”).) Cook did not indicate that the equipment was of poor quality or

improperly installed, only that it needed to be maintained by a full-time, properly trained

technician. (Id. at 176, 179.) Although he stated that the equipment when he viewed it was in poor

condition, he also could not say when the alleged damage occurred or how, and he agreed that

many of the things he described as being damaged were maintenance items. (Id. at 187–88.)

Although the plaintiff has apparently continued to complain about the mechanical equipment, in

response to the defendant’s assertion that she has no evidence of a breach of warranty regarding

the functioning of the equipment, the plaintiff has not pointed to the existence of any such

evidence. The court finds that the defendant has satisfied its obligation under Rule 56 of supporting

its assertion that a “fact cannot be genuinely disputed” by showing that the plaintiff “cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). The defendant is

entitled to summary judgment on the claim for breach of express warranties related to the pool’s

mechanical, electrical, and plumbing equipment.

To the extent the plaintiff is alleging a breach of the implied warranties of merchantability

and fitness for a particular purpose, the Contract expressly waived such warranties. Under

Tennessee’s enactment of the Uniform Commercial Code, any waiver of the implied warranties of

merchantability or fitness for a particular purpose generally must be in writing and “conspicuous.”

Tenn. Code Ann. § 47-2-316(2). A waiver of the implied warranty of merchantability must

“mention merchantability.” Id. The Contract in this case contains express language, under the

Article of the Contract entitled “WARRANTY,” that states, in capitalized letters:

ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING THE

WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF

FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.

(Doc. No. 1-2, at 10, Contract § 3.7.2.) The other parts of the same section (and article), aside from

the title of the article, are not capitalized.

The statute defines “conspicuous” as used in the UCC to mean

so written, displayed, or presented that a reasonable person against which it is to

operate ought to have noticed it. Whether a term is “conspicuous” or not is a

decision for the court. Conspicuous terms include the following:

(A) A heading in capitals equal to or greater in size than the surrounding text,

or in contrasting type, font, or color to the surrounding text of the same or lesser

size; and

(B) Language in the body of a record or display in larger type than the

surrounding text, or in contrasting type, font, or color to the surrounding text of

the same size, or set off from surrounding text of the same size by symbols or

other marks that call attention to the language. . . .

Tenn. Code Ann. § 47-1-201(10).

The language of the warranty waiver at issue here was incorporated into the Contract that

was signed by Hinman. The court finds that the language of the waiver was clear, as it expressly

disclaimed all other warranties other than those provided by the Contract. It was also sufficiently

conspicuous. Accord Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., No. 3:08-0368, 2009 WL

2983035, at *7 (M.D. Tenn. Sept. 14, 2009) (“Words ‘hidden in fine print’ are generally not

‘conspicuous,’ but, logically, a disclaimer that is ‘stated in capital letters’ and is, therefore, readily

apparent to the reader, is conspicuous.” citations omitted)). The court finds that the Contract

effectively waived the implied warranties of merchantability and fitness for a particular purpose.

The defendant is entitled to summary judgment on the plaintiff’s claim for breach of the

implied warranties of merchantability and fitness for a particular purpose. It is also entitled to

summary judgment on the claim for breach of express warranties, except insofar as this claim

overlaps with those parts of the breach of contract claim that will be permitted to proceed.

C. TCPA Claim

1. Statute of Limitations

An action for damages or other relief under the TCPA must be brought “within one (1)

year from a person’s discovery of the unlawful act or practice.” Tenn. Code Ann. § 47-18-110. By

expressly employing the word “discovery” in the statute, the Tennessee legislature made it clear

that the limitations period does not begin to run until the plaintiff discovers—-or reasonably should

have discovered—the unlawful practice on which her claim is premised. See Robinson v. Baptist

Mem’l Hosp., 464 S.W.3d 599, 608 (Tenn. Ct. App. 2014) (“Under the current discovery rule, a

cause of action accrues and the statute of limitations begins to run when the plaintiff has either

actual or constructive knowledge of a claim.” (citing Redwing v. Catholic Bishop, 363 S.W.3d

436, 457 (Tenn. 2012)); Ne. Knox Util. Dist. v. Stanfort Constr. Co., 206 S.W.3d 454, 459 (Tenn.

Ct. App. 2006) (“A cause of action accrues for either intentional or negligent misrepresentation

when a plaintiff discovers, or in the exercise of reasonable care and diligence, should have

discovered, his injury and the cause thereof.” (quoting Med. Educ. Assistance Corp. v. State, 19

S.W.3d 803, 817 (Tenn. Ct. App. 1999)).

“Under the discovery rule, the statute of limitations will only begin to run when the plaintiff

has actual knowledge of the claim, or when the plaintiff has actual knowledge of facts sufficient

to put a reasonable person on notice that she has suffered an injury as a result of wrongful conduct.”

Coffey v. Coffey, 578 S.W.3d 10, 22 (Tenn. Ct. App. 2018). Generally, “the inquiry of when a

plaintiff knew of or should have discovered a cause of action is a question of fact not properly

decided on summary judgment.” Id. at 21 (citing City State Bank v. Dean Witter Reynolds, Inc.,

948 S.W.2d 729, 735 (Tenn. Ct. App. 1996)); see id. at 22 (“[W]hether a plaintiff exercised

reasonable care and diligence in discovering her injury is usually a fact question for the trier of

fact to determine.”). However, if the material facts are undisputed and “clearly show that a cause

of action has accrued and that the statute of limitations has run, a summary judgment may be

entered.” Id.

The Tennessee Supreme Court has explained that “inquiry notice charges a plaintiff with

knowledge of those facts that a reasonable investigation would have disclosed. . . . [O]nce a

plaintiff gains information sufficient to alert a reasonable person of the need to investigate the

injury, the limitation period begins to run.” Redwing, 363 S.W.3d at 459 (internal quotation marks

and citations omitted).

In this case, the plaintiff’s TCPA claim, as set forth in the Complaint, is premised upon

BrightView’s allegedly

concealing the fact that the contract was priced on the basis of expensive cast-in-

place construction when in fact utilizing much less expensive shotcrete

construction; concealing the fact that the pool was leaking because [BrightView]

failed to install an expansion joint in the first instance; and concealing the fact that

the expansion joint installed in May 2016 was improperly installed, in violation of

Tenn. Code Ann. § 47-18-104(b)(5) [and] § 47-18-104(b)(7).

(Doc. No. 1 ¶ 44(1) & (2).)12

In her Response in opposition to the Motion for Summary Judgment, Hinman incorporates

into this claim her allegations regarding the plan Deviations, BrightView’s alleged failure to tell

her or ADE about the Deviations, and its purportedly taking steps to “conceal” the Deviations.

12 The Complaint also alleged that ValleyCrest transferred its contractor license to

BrightView while ValleyCrest was still obligated to fulfill its obligations under the Contract. Any

claim based on this allegation was obviated by the conclusion that ValleyCrest essentially changed

its name to BrightView.

(See Doc. No. 126, at 16.) She argues that BrightView “misrepresented that the Project had the

‘sponsorship and approval’ of ADE” but ignored ADE’s detailed Plans and mispresented the

“characteristics of the goods and services provided” by promising Xypex and other “extremely

detailed design features but then making the Deviations.” (Doc. No. 126, at 16, 17.)13 Specifically

regarding the statute of limitations issue, Hinman asserts that she did not discover the Deviations

until 2019 and that the “record makes clear that BrightView concealed these Deviations.” (Id. at

18.)

Specifically regarding the TCPA claims as actually articulated in the Complaint, it is

beyond clear that the plaintiff knew about the omission of the expansion joint in early 2016. Any

TCPA claim relating to the original omission of the expansion joint was clearly discovered more

than one year prior to the plaintiff’s filing of her Complaint in July 2019. In addition, to the extent

the plaintiff intends to premise her TCPA claim on BrightView’s failure to reveal to her how

difficult it would be to train and retain a pool maintenance company, the plaintiff was admittedly

on notice of that fact no later than the fall of 2016, more than one year before she filed suit in July

2019. (See Doc. No. 127, Pl.’s Resp. ¶ 43.) The defendant is entitled to summary judgment on the

TCPA claim, on statute of limitations grounds, insofar as the claim is premised upon these alleged

failures and omissions.

Regarding the allegedly incorrectly installed expansion joint, the plaintiff claims that she

discovered that the pool was leaking along the expansion joint when she used the dye test kit

provided to her by BrightView in the fall of 2018—less than a year before she filed suit. Whether

13 She also invites the court to reconsider the dismissal of the fraudulent inducement claim.

The court declines that invitation.

a reasonable person would have discovered it sooner is a jury question. BrightView has not

established that that claim is time-barred.

Regarding the purported Deviations, BrightView argues that the plaintiff’s frequent

contacts with it and her repeated complaints about the pool, from shortly after its completion

through early 2019, belie her attempts now to claim that she did not “discover” the “source” of her

injuries until the summer of 2019, when she obtained counsel and “began the investigation that led

to the filing of this lawsuit.” (Doc. No. 126, at 6.) The court is not persuaded. The relevant inquiry

for purposes of the TCPA claim is what a reasonable person in the plaintiff’s position should have

known by July 1, 2018. Aside from other problems with the TCPA claim based on the Deviations,

the court finds that there is a question of fact as to when Hinman acquired “actual knowledge of

facts sufficient to put a reasonable person on notice that she has suffered an injury as a result of

wrongful conduct.” Coffey, 578 S.W.3d at 22. Although Hinman obviously knew that the pool had

issues and knew or suspected no later than late 2017 that it was continuing to leak, despite the

installation of the retrofitted expansion joint, given that BrightView allegedly did not provide her

with accurate as-built construction plans until discovery in this case and that most of the

construction Deviations are literally concealed by a layer of concrete, her notice of problems in

general did not necessarily put her on notice of the Deviations. The defendant has not shown that

it is entitled to summary judgment on the TCPA claim arising from the Deviations on the basis of

the statute of limitations.

2. Merits of TCPA Claim

The TCPA prohibits the use of “[u]nfair or deceptive acts or practices affecting the conduct

of any trade or commerce.” Tenn. Code Ann. § 47-18-104(a); Best Choice Roofing & Home

Improvement, Inc. v. Best Choice Roofing Savannah, LLC, 446 F. Supp. 3d 258, 271–72 (M.D.

Tenn. 2020) (Campbell, J.). A “deceptive” act or practice is one that causes or tends to cause a

consumer to believe what is false or that misleads or tends to mislead a consumer as a matter of

fact. Id. at 272 (citing Audio Visual Artistry v. Tanzer, 403 S.W.3d 789, 810 (Tenn. Ct. App.

2012)). The TCPA lists certain acts considered to be “unfair or deceptive,” including the following

provisions cited by Hinman in her Complaint:

(5) Representing that goods or services have sponsorship, approval, characteristics,

ingredients, uses, benefits or quantities that they do not have or that a person has a

sponsorship approval, status, affiliation or connection that such person does not

have; . . .

(7) Representing that goods or services are of a particular standard, quality or grade,

or that goods are of a particular style or model, if they are of another . . . .

Tenn. Code Ann. § 47-18-104(b)(5), (7).

In order to recover under the TCPA, a plaintiff must prove that (1) the defendant engaged

in an unfair or deceptive act and (2) the defendant’s conduct caused an ascertainable loss of money

or property. Best Choice, 446 F. Supp. 3d at 272 (citing Tanzer, 403 S.W.3d at 810). “As to the

second element, ‘the alleged unfair or deceptive act or practice must in fact cause the damages of

which the plaintiff complains.’” Id. (quoting White v. Early, 211 S.W.3d 723, 743 (Tenn. Ct. App.

2006)). Because the TCPA is remedial, it is to be construed liberally in order to protect the

consumer. Miolen v. Saffles, No. E2018-00849-COA-R3-CV, 2019 WL 1581494, at *8 (Tenn. Ct.

App. Apr. 12, 2019). Whether a particular representation or act is “unfair” or “deceptive,” within

the meaning of the TCPA, is a generally a question of fact. Id. at *9.

As set forth above, the TCPA claim as articulated in the Complaint is based upon

allegations (that are not time-barred) that the pool project was “priced [on] the basis of expensive

cast-in-place construction,” despite BrightView’s intention from the outset to use shotcrete

construction; and (2) BrightView “conceal[ed] the fact that the expansion joint installed in May

2016 was improperly installed.” (Doc. No. 1 ¶ 44(1), (2).)

The plaintiff has not presented any evidence suggesting that the pricing of the pool project

was actually premised upon cast-in-place construction as opposed to shotcrete, or even that cast-

in-place construction is more expensive than shotcrete. More to the point, the plaintiff has not

established that the use of shotcrete gave rise to “an ascertainable loss of money or property.” Best

Choice, 446 F. Supp. 3d at 272. To the contrary, her expert, David Chapman, did not attribute any

damages to the use of shotcrete per se, or opine that it made the pool less valuable than it otherwise

would have been. The defendant is entitled to summary judgment on the TCPA claim based on the

use of shotcrete instead of cast-in-place concrete for the pool floor.

To the extent the plaintiff believes that BrightView “concealed” defects in the expansion

joint installed in May 2016, the plaintiff has not pointed to any actual omissions, concealment, or

deception related to the installation of the retrofitted expansion joint, per se. Instead, in her

Response to the Motion for Summary Judgment, the plaintiff argues about the Deviations and the

steps BrightView allegedly took to conceal the Deviations. The defendant is entitled to summary

judgment on the TCPA claim based on the alleged concealment of defects related to the installation

of the retrofitted expansion joint.

Finally, insofar as the TCPA claim is now based primarily on the Contract Deviations, even

if the court presumes that BrightView had a duty to disclose these Deviations, Hinman has not

shown that she suffered “an ascertainable loss of money or property,” Best Choice, 446 F. Supp.

3d at 272, as a result of the specific Deviations already discussed—the failure to use no-leak

flanges, a vapor barrier, preformed fiberglass sumps, or Xypex. The defendant, therefore, is

entitled to summary judgment on the plaintiff’s TCPA claim related to the Deviations as well.

In sum, no part of the plaintiff’s TCPA claim survives on the merits. The defendant is

entitled to summary judgment on the TCPA claim in its entirety.

D. Negligence

1. Statute of Limitations

Negligence claims resulting in injury to property must be “commenced within three (3)

years from the accruing of the cause of action.” Tenn. Code Ann. § 28-3-105(1). As discussed in

connection with the TCPA statute of limitations, “[u]nder the current discovery rule, a cause of

action accrues and the statute of limitations begins to run when the plaintiff has either actual or

constructive knowledge of a claim.” Robinson, 464 S.W.3d at 608. A plaintiff has constructive

knowledge when she has “actual knowledge of facts sufficient to put a reasonable person on notice

that she has suffered an injury as a result of wrongful conduct.” Coffey, 578 S.W.3d at 22. “[T]he

inquiry of when a plaintiff knew of or should have discovered a cause of action is a question of

fact not properly decided on summary judgment.” Id. at 21.

The negligence claim as set forth in the Complaint is premised upon BrightView’s

allegedly

not using proper waterproofing techniques; by not installing an expansion joint in

the first instance; by not properly installing an expansion joint after admitting that

the expansion joint had not been originally installed; by not properly grounding

electrical equipment; by not properly installing pumps; and by not procuring the

proper equipment.

(Doc. No. 1 ¶ 64.)

BrightView argues, again, that the plaintiff’s frequent contacts with BrightView and

repeated complaints about the pool, from shortly after its completion through early 2019 belie her

attempts now to claim that she did not “discover” the “source” of her injuries until the summer of

2019, when she obtained counsel and “began the investigation that led to the filing of this lawsuit.”

(Doc. No. 126, at 6.) In particular, BrightView points to a March 14, 2019 email to Brian Chesnut,

BrightView’s CEO, from Jamie Nicholson, one of Hinman’s financial advisors, acting on behalf

of Hinman, providing a timeline of the plaintiff’s discovery of various problems and her attempts

to get BrightView to fix them (“Nicholson email”). (Doc. No. 114-4, at 32–35.) As with the TCPA

claims, the plaintiff’s Response to the statute of limitations argument focuses on the alleged

Contract Deviations rather than on the actual issues raised in her Complaint.

The relevant inquiry for purposes of the defendant’s statute of limitations argument is what

the plaintiff knew or reasonably should have known by July 1, 2016. Again, with respect to the

omission and retrofitted expansion joint, the plaintiff knew about that problem no later than

January 2016, more than three years before she filed suit. The claim, insofar as it is premised upon

that negligent omission, is clearly time-barred.

To the extent the plaintiff’s negligence claim is premised upon BrightView’s building a

pool that was too complicated for the residential, rural setting of the plaintiff’s home, that claim is

time-barred, as the plaintiff was clearly on notice well before July 2016 of how complicated the

maintenance of the pool was and the difficulties she was already having in training and retaining

a company to help her with pool maintenance. (See, e.g., Doc. No. 148-1, Hinman Dep. 93–94

(stating that she became discouraged after calling virtually every company within a thirty-mile

radius during the summer of 2015 and learning that none was willing to take on a pool as

complicated as hers).)

Otherwise, however, insofar as her claim arises from the other issues with the pool and the

specific Deviations the plaintiff claims not to have discovered until she retained an engineer, the

court finds that there is a question of fact as to when Hinman acquired “actual knowledge of facts

sufficient to put a reasonable person on notice that she has suffered an injury as a result of wrongful

conduct.” Coffey, 578 S.W.3d at 22. That is, although the plaintiff had knowledge of myriad

problems with the pool, particularly as pertains to the expansion joint and the problems with

specific pieces of equipment, well before July 2018, a fact question exists as to whether a

reasonable person would have been on notice that BrightView’s intentional or negligent

Deviations from ADE’s Plans and Specifications were the source of the leak problem.

2. Merits

The elements of a general negligence claim in Tennessee are (1) a duty of care owed by

the defendant to the plaintiff; (2) breach of the applicable standard of care; (3) injury to the

plaintiff; and (4) the defendant’s conduct is both a “cause in fact” and “proximate cause” of the

injury. Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009).

BrightView argues that this claim is not supported by the evidence and, in any event, is

barred by the economic loss doctrine. The plaintiff responds that (1) “[w]hile the case is grounded

primarily in contract, BrightView was also negligent in materially deviating from the Plans, as

described herein”; (2) BrightView was further negligent in its retrofitting of the expansion joint;

and (3) the economic loss doctrine does not apply.

Tennessee law on the applicability of the economic loss doctrine in this context is unsettled.

In 2021, the Tennessee Supreme Court explicitly noted that it had “never applied the economic

loss doctrine outside the products liability context, in which it originated.” Milan Supply Chain

Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 153 (Tenn. 2021).14 In 2022, the Tennessee Court of

Appeals held that the “economic loss rule is applicable to construction contracts negotiated

14 BrightView does not contend that this case qualifies as a product liability action. The

only case remotely on point that this court has located held that “policy reasons do not justify

characterizing” the custom-built in-ground pool at issue in that case as a “product” for purposes of

product-liability law, where it had “not been shown to be a standardized model constructed,

assembled, or manufactured by a mass-production process analogous to the tract homes in

[Schipper v. Levitt & Sons, Inc., 207 A.2d 314 (N.J. 1965)], and [Kriegler v. Eichler Homes, 74

Cal. Rptr. 749 (Cal. Ct. App. 1969)],” or “analogous to the prefabricated fiberglass pool designed,

manufactured, and distributed for installation by the defendant in [Duggan v. Hallmark Pool Mfg.

Co., 398 N.W.2d 175, 178 (Iowa 1986)].” Menendez v. Paddock Pool Const. Co., 836 P.2d 968,

977 (Ariz. Ct. App. 1991).

between sophisticated commercial entities.” Commercial Painting Co. v. Weitz Co., No. W2019-

02089-COA-R3-CV, 2022 WL 737468, at *1 (Tenn. Ct. App. Mar. 11, 2022), but the Tennessee

Supreme Court granted an appeal of that decision, specifically to address the issue of whether the

Court of Appeals “erred in applying this Court’s holding in Milan Supply Chain Solutions, Inc. v.

Navistar, Inc., 627 S.W.3d 125 (Tenn. 2021), and expanding the application of the economic loss

doctrine to the circumstances of this case,” No. W2019-02089-SC-R11-CV, 2022 WL 3149615

(Tenn. Aug. 4, 2022). In light of that pending appeal, the court will not grant summary judgment

on the basis of the economic loss doctrine at this juncture.15

Regardless, insofar as the plaintiff’s negligence claim is premised upon the alleged

Deviations, the court has already found, as set forth above, that, irrespective of whether

BrightView deviated from the standard of care by failing to follow the Plans and Specifications

provided by ADE, the plaintiff cannot establish damages arising from BrightView’s failure to use

Xypex, no-leak flanges, a vapor barrier, preformed sumps, or the nine-inch footer.

Regarding the installation of the retrofitted expansion joint, the plaintiff has established

that there is at least a question of fact as to whether the defendant incurred a duty to her when it

undertook that repair and as to whether the expansion joint, due to a negligent or faulty installation,

has been leaking since no later than sometime in 2017. The plaintiff has also presented evidence

suggesting that the water features were negligently constructed. The court will not grant summary

judgment to BrightView on the negligence claim insofar as it is based on these issues. Insofar as

15 The plaintiff argues that, even if the Tennessee Supreme Court affirms the appellate

court’s holding, the decision would not apply here, because the Contract is not between

“sophisticated commercial entities.” The plaintiff, however, is clearly sophisticated, and she

appears to have involved her lawyer and financial advisor in most of her dealings with BrightView.

Although there is perhaps a question of fact as to the parties’ respective sophistication, it is not

likely that this distinction would bar the application of Commercial Painting to the particular facts

of this case, if the opinion is affirmed.

39

the negligence claim is based on any other allegations, however, BrightView is entitled to

summary judgment.

IV. CONCLUSION

For the reasons set forth herein, the court will grant in part and deny in part BrightView’s

Motion for Summary Judgment (Doc. No. 114). The breach of implied warranty, TCPA, and

conspiracy claims will be dismissed in their entirety. The breach of contract, breach of express

warranty, and negligence claims will be dismissed in part.

An appropriate Order is filed herewith.

United States District Judge