Consulting and Financial Services, Inc, et al. v. John H. Friedmann, Sr.

This is the second appeal of this case, arising from the installation of tile flooring. In Consulting and Financial Services, Inc. v. Friedmann, No. M2011-00093COA-R3-CV, 2012 WL 1390621 (Tenn. Ct. App. April 19, 2012), we held that the trial court’s measure of damages was correct, but remanded for re-calculation of the amount of damages. The remand was necessary because the original judgment included damage amounts that were based upon tile repairs to certain areas of the home, which repairs were not raised by Appellees/homeowners within the one-year warranty period. We did not, however, mandate the method by which the trial court could determine the adjusted amount. Upon remand, the only evidence presented was from the original contractor, who relied upon his original estimate. To arrive at the portions of the original estimate that were for the excluded areas, the contractor had his tile subcontractor submit separate estimates for those areas. The separate estimates were calculated using the current price-per-square-foot applicable at the time of remand, which was less than the price-per-square-foot that was used in the original estimate. To arrive at the adjusted damages amount, the trial court simply subtracted the separate estimate amounts from the original estimate. Appellant/Contractor appeals, arguing, inter alia, that the lower price-per-square-foot applicable at the time of remand should apply to the entire judgment, or, in the alternative, that the excluded amounts should be calculated using the same price as was used in the original estimate. The “law of the case,” based upon our holding in the first appeal, was that the judgment would be adjusted to exclude all costs associated with the excluded areas. Although we did not mandate that the trial court re-try the issue of damages, we did not preclude that option in our first opinion. However, it was implicit in our holding that, if the trial court chose to use the original estimate (which it did), then the total costs for the excluded areas would be calculated, at the same price used in the original estimate, and subtracted from the original estimate. Because the trial court used new estimates for the excluded areas, which were not calculated at the same rate as in the original estimate, the adjusted judgment did not remove the full amount for repairs to the excluded areas that were contemplated in the original estimate. Accordingly, the law of the case was not followed. Vacated and remanded with instructions.