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Shepherd v. Weather Shield Manufacturing8/18/2000
The plaintiff brought suit against a manufacturer of windows and doors for allegedly supplying defective products which allowed substantial leaks into her dwelling and caused rotting because of excessive moisture. Following a non-jury trial, the trial court denied the plaintiff's claim pursuant to the Tennessee Consumer Protection Act but awarded judgment to the plaintiff on her claim that the defendant supplied defective doors and windows. Based upon our review, we affirm the trial court's denial of the Tennessee Consumer Protection Act claim. Finding that the plaintiff did not provide notice to the defendant of its allegedly defective product within the applicable statute of limitations, we reverse the award of damages to the plaintiff and dismiss her complaint.
Tenn. R. App. P. 3; Judgment of the Chancery Court Affirmed in Part, Reversed in Part, and Remanded
Alan E. Glenn, Sp . J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., and David R. Farmer, J., joined.
OPINION
The plaintiff, Cybill Shepherd, brought a complaint against the defendant, Weather Shield Manufacturing Inc., because it allegedly supplied defective windows and doors for a residence which was constructed for the plaintiff at a development on the bluff overlooking the Mississippi River in Memphis, Tennessee. Following a bench trial, and judgment awarded to the plaintiff, the defendant timely appealed, presenting the following issues:
I. Is an exclusion of consequential damages unconscionable or invalid as a matter of law if a warranty fails?
II. Is a buyer barred from any remedy for breach when the buyer does not notify the seller of any defect within the warranty period?
III. Should a claim for damages to a home be dismissed when there is no evidence that plaintiff owns the home?
IV. Does an agreement that expressly releases all persons from "any and all claims" resulting from an architect's services and advice release a window manufacturer from water- damage claims when the architect selected windows that were inappropriate for the type of exterior finish used and then refused to allow proper installation?
V. The trial court's findings of fact and conclusions of law regarding damage calculations are unsupported by credible evidence in the record and, therefore, based on speculation and conjecture.
VI. The trial court erred in awarding the plaintiff $4,000 in discretionary costs.
The plaintiff raised an additional issue on appeal:
I. Did the trial court err in not finding that the defendant had violated the Tennessee Consumer Protection Act?
FACTS
In 1991, the plaintiff, Cybill Shepherd, entered into a contract for construction of a residence on lots 3 and 4 of South Bluff, Magnolia Mound Drive, in Memphis, Tennessee. Walton Watson Construction Company, with whom the plaintiff contracted on August 5, 1991, was to be the general contractor. The plaintiff contracted with Francis Mah to be the architect. Mr. Mah had graduated from Yale University in 1952, receiving both a bachelor's degree, as well as a master's degree in architecture. He was employed as an architect with the Memphis architectural firm Jones, Mah, Gaskill and Rhodes from approximately 1955 until 1990. For the past five years, Mr. Mah had taught architectural design at the University of Memphis.
As originally designed, the house was to have an "exterior insulating finishing system (FFIS), commonly referred to as Dryvit drywall." A stipulation of the parties was that Dryvit construction detail "includes a rain barrier which is designed to function
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