1 

# FILED
June 7, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTI ON AT NASHVILLE

______________________________________________ JERRY T. BEEC H ) CONCRETE CONTRACTOR, INC. ) ) Appellan t, ) ) Davidson No. 93-3316-1 v. ) ) C.A. No. 01A01-9507-CH-00308 MARY HENDERSON, ) ) Appellee. )

APPEAL FR OM THE CHAN CERY COUR T, PART I THE HONORABLE

IRVIN H. KI

LCREASE, JR ., CHANCE LLOR

Maclin P. Davis, Jr. Nashville, Tennessee Attorney For Appellee

Joseph K. Dughman Bruce, We

athers, C orley, D ughman & Lyle Nashville, Tennessee Attorney for Appellant

AFFIRMED

IN PART, R

EVERSED IN P

ART, AND

REMANDED

OPINION FILED:

WILLIAM H. W ILLIAMS, SEN IOR JUDGE

CONCUR: HIGHERS, J. FARMER, J.
PRELIMINARY STATEMENT This case concerns the payment on a contra ct for installation of a concrete driveway. Jerry2

T. Beech Concrete Contractor, Inc. (her einafter, "Bee ch") filed suit against Mary Henderson (hereinafter, "Henderson") on a sworn account for nonpayment of the contract price for installing

a concrete driveway and a box dra in. Following a

bench tr ial, the trial court found that Beech and Henderson had contr

acted to install a driveway and a box drain, but the trial court determined that Beech had installed the driv eway in a n unworkmanlike ma

nner ca using it to ha

ve defe cts. As a result, the trial court awarded Beech the contra ct price offset by the amount of pro perty damage Henderson allegedly suf

fered. Beec h appealed, and the appeal is properly bef ore this Court. We affirm in part and reverse in part.

ISSUES Beech’ s issues a

re as fo llows: I. Whether

the evidence preponderates aga i nst t he Chancellor's findin g tha t Beech installed the driveway in an unworkmanlike manner. II. Whether

the evide

nce pre pondera tes again st the Chancellor's fin ding that Beech orally agreed to insure that rainwate r wou ld no t accumulate on the driveway. III. Whether the Chancellor erred in fa iling to find thatBeech and Henderson had entered into an oral contract providing for

liquidated damages of $700.0 0 if repa ir of the fo otprints f

ailed to satisfactorily cure the defect

. IV. Whether

the Chancellor erred in awarding damage s based on Hende rson's t estimony regarding the diminution in the value of the property. V. The Chancel lor should have aw arded pr

e-judgme nt intere st since the damages of $8,505.00 are certa in.
Hender son's issue s are as follows: VI. Whether

Beech's complai nt sh ould be dismissed and the judgmentawarded Beech in the amount of $2,005 should be set aside (a) because the false testimony of Beech's president constituted unclean hands on the pa rt of Beec h; (b) be cause Be ech was a subcontractor

by contract with Mrs. Armistead and is not entitled to a personal judgment against Mrs. Henderson; and (c) bec ause the cost of repairing the defective driveway e xceeded the contract price. VII. Whether

the amount of the judgment should be reduced by $555, which was inc luded in t he judgment for the box drain and culvert because (a) there was no agreement to pay that amount for the box drain an d culver

t; (b) the re was no eviden ce that th e box dra in and culvert were ins talled by Beech; and (c) it was established by undisputed evidenc e that Beech remov ed th e cu lvert fr om Mrs.3 Henderson's property.

STATEMENT OF

FACTS Appellee Henderson resides in a home located at the int ersection of Tyne and Lynwood Boulevards in Nashville, Tennessee. In the Spr ing of 1993, Henderson contracted with Tara Armistead (hereinafter, "Armistead") to design a drive way and a landscape plan for her property. One of the purpo ses of the

drivewa y and land scape pl an was to divert water away from the house. The water was flowing onto the property from Tyne and Lynwood Bouleva rds. After developing

a landscaping pla

n, Armistead's office notified Clayton King (hereinaft er, "King"), Beech's president , and asked him

to provide

an estima

te for the drivewa y, box dra in and culvert. After reviewing the blueprint plans provided by Armistead, Beech provided an estimate of $7,950.00 for installation of the driveway. Beech also submitted an estimate for a culver t to be installed

at a cost of $340.00 and a box drain and grate to be installed at a cost of $430.00. Bee ch's esti mate was submitted t o Ar mistead who pres ented it to Hender son. Hend

erson ag reed to t he estima te, and A rmi stea d contacted King and told him that Henderson wanted Beech to do the wor k. Beech installed the driveway and box drain in July, 1993. During the course of the proje ct, Henderson objecte d to some prints from a workman's shoe that had b een made in the wet

concre te along the driveway. Beech offered to re pair the shoeprints, but

Henderson wanted the entire section of concrete replaced or $1,000 deducted from the cost of the project. Eventually, Beech repaired the shoeprin ts and finished the project. Henderson found the repairs to the driveway to be unsightly and unsatisfactory. Further, Hen derson fo und that the driveway did not drain properly. Instead, the drivewa y retained w ater in so me sites c ausing poo ling for u p to one hour follow ing a rai nstorm. Because of the shoeprints and the drainage problems, Henderson re fused to pay Beech for the work done to her property. On Nove mber 10 , 1993, Beech filed a compla int on swor

n account agains t Hender son to
recover $8,505.00 for the installation of the concrete driveway and the box drain. In her Answer, Henderson alleged that she never contracted with Beec h for installation of a

driveway and box drain, and that Beech had contracted with Armistead, not Hende rson. Subsequently, Beech amended its complaint to pray f or pre- judgment in

terest a nd to add A

rmistead as a defendant. Beech alleged that Armistead acted a s an agen t for Hen derson in

contracting with Be ech for th e installat ion of the driveway and that Henderson was, thus, liable for the pa yment.4 A trial was held in this cause in the Chancery Court of Davidson County in December, 1994. Beech's claims against Tara Armistead were dismissed at the conclusion of the Plaintiff's proof

. On January 11, 1995, the trial court entered a memora

ndum makin g its findings of fact and conclusions of l aw wherein the Chancellor found that there wa s a contract between Beech and He nderson t o install a driveway for $7,950.00 and a culvert and box dr ain for an additional $555 .00. Th e trial court further found that Beech installed the driveway in an unwor kmanl ike m anner r

esulting in $6,500.00 in damages to Henderson's property. Therefor e , the tri al court

awarde d a judgme

nt to Beech in the amount of $2,005.00, which is the contract price of $7,950.0 0 mi nus $6,500 .00 in damages to Henderson's property, plus $555.00 for installation of the box drain. The trial court

did notgrant the claim for pre-judgment int erest and the costs wer e split equ ally betw een the p arties. An Order consistent with the opinion was entered on January 26, 1995. After timely filing a motion to alter or amend the

judgment, which the

trial cou rt l at er denied, Beech timely filed a notice of appeal on April 12, 1995. This Court is bound by Rule 13(d), T.R.A.P., upon our review of this record. “Unless otherwise required by statute, review of findings of fact by the trial cou

rt in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evi de nce is otherwise.” In a de novo review, the par ties are entitled to a reexamination of the whole matter of law and fact and this court should render the judgmentwarran ted by the law and the evidence. Thornburg v. Chase , 606 S.W.2d 672 (Tenn. App. 1980); American Buildings Co. v. White , 640 S.W.2d 56 9 (Tenn. App. 1982); Tennessee Rules of Appellat e Procedure, Rule 36. We not e that no such presumption attaches to conclusions of law. See Adams v. Dean Roofing Co. , 715 S.W.2d 341, 343 (Tenn. App. 1986). Carter v. Krueger , 916 S.W.2d 932, 935 (Tenn. App. 1995).

CREDIBILITY In or der to pr

operly c onsider t

he meritsof this ap

peal, it is necessa

ry for the Court f

irst t o dispose of some issue s rais ed by the Appellee. The first issue raised by Appellee is that the judgmentshould be set aside and Beech's complaint should bedismissed because Beech had unclean hands. Specifically, Henderson maintains that Clayton King testified that the only prints made in the wet concrete were those of the toe of a shoe about three to three and one-half inc hes long. Henderson asserts that this testimony is contradicted by King's own answer s to interrogatories, as5

well as the testimony offered by numerous other witnesses who all testified that some o f the prin ts were those of an entire shoe. Henderson relies upon this Court's decision in Inman v. Inman , 14 T.A.M. 47-5 (Tenn. App. 1989), modified on other grounds and affirmed , Inman v. Inman , 811 S.W.2d 870 (Tenn. 1991), to support the propo sit ion that t

he complaint of a perjurer should be dismissed and any judgment entered in his favor be reversed. Upon examination of the recordin this appeal, it does not appear to the Court t

hat ther e are in consiste

ncies be tween Cl ay ton King's testimony a nd his answ ers to interrog atories. King testified that the prints were not full fo otprints, and his answer to the interrogatory stated that the prints were ". . . [T]hre e partia l footprin ts involving the front portion of the foot. . . ." There appears to be no inconsistency among King's statements to support a finding of perjury, and the trial court did not find that perjury had been committed. Accordingly, we decline to dismiss the cause on this issue.

CONTRACT 1. The evidence prep onderate s in favor o f the tr ial court's finding that a contract existed between Beech and Henderson. The second o f Appellee's issue s to be addressed is whether a contract existed between Beech and Henderson. Henderson asserts that Tara Armistead was an independent contractor who solicited and accepted the bid from Beech. Hender son also claims that the only contract that existed was one between Armistead as the primary contractor and Beech as thesubcontractor. Therefore, Hende rson maintains that there was no privity of contract between Beech Con

tract and her, and that Bee ch is not entitled to a personal judgment against her. The trial court expressly found that Armis tead, as Hender son's age nt, contr acted w ith Beech to install a driveway. Thus, the trial court found that Beech and Hend

erson ha d, in fac t, enter

ed into

a valid and enforc eable

contract. Wewill not disturb the trial court's determination as to this issue. Whether an agency has been crea ted is to be determined by the relations of the parties as the rel ati ons in fact exist under their acts, regardless of whe ther the parties understand there to be an agency. Rich Printing Co. v. McKella r's Estat e , 330 S.W.2d 361, 376 (Tenn. Ap p. 1959); see also Smith v. Tennessee Coach Co. , 194 S.W.2 d 867, 869 (Tenn. 194 6). Ther e is suffi cient evidence i n the record

to indicate that Henderson gave Armistead the authority to hire a contractor to perform6

the project. Armistead asked Beech to bid on the job which it did upon the belief that Armisteadwas acting on Henderson's behalf as her agent. The driveway was cons tructed

on Hende

rson's pr operty and solely for her benefit. The record is devoid of any proof that Armistead was a primary or genera l contractor. Theref

ore, Bee ch was ju stified in relying u

pon Armis tead's ap parent authority as Henderson's agent, a nd Henderson is thus bound by Armistead's actions. V.L. Nicholson Co. v. Transcon Inv. and Fin. Ltd., Inc , 595 S.W.2d 474, 483 (Tenn. App. 1980). 2. The evidence prep onderate s in favor o f the trial c ourt's find

ing that Be ech is

entitled to $7,950.00 for installation of the driveway. The trial court not only found there t o be a valid con tract be tween the parties t o install a driveway, but also found that Beech had installed the dr iveway an d was, therefore, entitled to the contract price of $7,950.00 for installation of the driveway. We find t he evide nce pre pondera tes in favor of the trial cou

rt's dec ision holding that Bee ch is entit led to the contract price, and in light of the evidence presented at trial we agr ee and affirm on this issue. The issue of property damages arising from

Beech's allegedly unworkmanlike manner in installing the driveway will be discussed below. 3. T

he evi dence p reponde rates agai nst the tria l court's

finding tha t Beech i

s entitled to $555.00 fo r installatio n of the box drain and c ulvert. The trial court held that there was a separate agreeme

nt between Beech and Henderson for installation of a box d

rain and culvert . Beech' s job estima te provided for installation of an 18 inch culvert for $340.00 and installation of a box drain and grate for $430.00. We affirm the trial court's determination as to the existence of such an agreement between Beech and H enderson. However, Hende rson test ified that the culvert, while brought to Henderson’s property, ultimately was not installed and was, in fact, removed from the property. I n its reply brief

, Beech concedes that the culvert was removed. Contrary to Henderson's assertions in her brief, the box drain and grate were installed as found by the trial judge. A photograph of the box drain andgrate wa s introduc ed into evidence. The Beech invoice shows that it charged Henderson $430.00 for installation of

the box dr

ain and grate and that it charged Henderson $340.00 for installation of

the culvert. The invoice reflec ts that Beech credited Henderson with only $215.00 for the non-installation of the culvert instead of the $340.00. This is a differential of $125.00

. There is nothing to explain the differential. The record is silent. Beech main

tains that the trial court pr operly a warded $555.00 f or the box drain and7

grate. We disagree. The evidence preponderates a gainst the trial court’s finding in this regard and is reversed and disallowed. The proper a mount due Beech for

installation of the box

drain an d grate is $430.00. The amount o f $125.00 will be deducted from the judgment awarded to Beech of $8,505.00, reducing said judgment to the amount of $8,380.00. In summary, we affirm the trial court’s finding th at there was a separate agreement betwee n Beech and Hend

erson fo r installa tion of the

box drain , grate a

nd culver t, but rev erse

its finding that the culvert was installed. We, therefore, affirm the amount of $430.00 for installation of the box drain and grate, but

revers e the granting of the additional $125.00 by the trial court to Beech because the evidence prepond erates against b oth of the se matter s.

WORKMANS HIP 1. The evidence supp orts the Cha ncellor' s fi nding that Beech installed the driveway in an unworkmanlike man

ner. Examination of the testimony offered by Armistead, Henderson and Hend erson's expert, Fred Stephenson, indicate s that the d riveway is defec ti v e because of the footprints and the improper drainage. The trial court's determination is supported by ample evidence in the form of photographs of the driveway taken at various times after completion of the project. The photographs cle arly show where the repairs were ma de to rem ove the shoeprints , and the p hotograp hs also show the many sites where the driveway collects water due to improper drainage.8 2. The evidence supports the Chancellor's finding that Beech orally agreed to insure that the driveway would not c ollect wat

er. Beech maintains that Henderson has ha d w ater dr ainage p roblems in

her yar d for some twenty-two years, and that Beech was not hired to correct

these problems. Beech claims that it was simply hired to

install a driveway and was not asked to insure that the water would flow acr oss the driveway and not

accumulate. Specifically, Clayton King testified that the elevations that Beech determinedwere on

ly elevations for the concrete forms. Howeve r, the trial court found

otherwise. Specifically, the trial court stated in its findings of fact and conclusions of law, ". . . Beech Concrete orally agreed to shoot th e slope of

th e driveway to insure that rainwater would not acc umulate. Beech Con

crete f ailed to do so." Armistead testified that one of Beech' s duties was to insure that the water drains off the driveway, and she further testified that Clayton King, Beech's president, agreed that he would take

care of the elevations and the drainage of the driveway. Furthermore, Sandis Cooper, a local brick

mason who took part in the project, testified that it wa s a Beec h emp loyee who determined the elevations for the driveway and instructed Cooper as to the height to place the brick and underlying

concre te pad. The evidence is undeniable that water c ollec ts on the dri veway due to improper drainage. The Court finds that the evidence preponderates in favor of the trial court's finding that Beech installed the driveway in an unworkmanlike manner and that Beech

orally agreed to insure that water would notaccumulat e on the driveway. Accordingly, the Court will affirm the trial court's determination.
DAMAGES The trial court awarded Beech a judgment of $7,950.00 for installation of a driveway. The trial court of

fset that j udgment b y $6,500.00 because Beech installed the driveway in an unworkmanlike manner and because Henderson te stified that she had suffered property damage in that amount. On appeal, Beech maintains that the trial court erred in awarding damages based on Henderson's testimony regarding the diminution in value of her property. The proof that Hende rson set forth to establish these damages was her own testimony. Henderson testified to the diminution in value o f her pr

operty a s follows:9 Q: Mrs. Hen derson, in your opinion, what is the reduction -- amount of the reduction in your value of y our -- all of your property there. Your home, if you were going to sell it bu t didn't ha ve to sell it to a buyer who wanted to buy it bu

t didn't ha ve to buy it

. In your opinion, what is the difference or reduction in the marke tvalue between what it would be worth if the driveway did not have the sections that you complained about? * * * * A: Well, my opinion woul d be t hat the pr operty is worth at l east $6,500 less than if the driveway were as it should have been, a quality correct driveway.
Examination of the re cord on a ppeal ind icates th at while u

nrebutt ed, Hender son's opinion testimony was all that was o ffered regarding the amount of damage s. On that basis alone, the Chancellor

offset the $7,950.0 0 contract price by $6,500.00 and awarded Be ech a judgment for installation of the driveway of $1,450.00. Although an owner of

real property is deemed to have special knowledge about his p

roperty to offer an opinion as to its value, the owner's opinion will be given little weight when founded upon pure speculation. Airline Const., Inc, v. Barr , 807 S.W.2d 247, 256 (Tenn. App. 1990). Th ere must be some evidence, apart from mere owne rship, that the estima

te of dimin

ution in va

lue is a product of reason ed ana lysis of evidence in the record, rather than upon c onjecture, speculation or unwarranted assumptions. Id. at 256; See also Snow Bank Enterprises, Inc. v. United States , 6 Cl. Ct. 476 (1984) (citing United States v. Sowards , 370 F.2d 87 , 92 (10th C ir. 1966) ). To supp ort an aw ard of da mages the re must exist proof of "damage s within a r

easonab le degree of

certain ty." Redbud Coop. Corp. v. Clayton , 700 S.W.2d 551, 561 (Tenn. App. 1985). Based upon the proof in the record we conclude that there

was no reaso nable or

rationa l basis upo n which the trial c ourt could hav e awar ded diminu

tion in value damages of $6,500.00. The trial cou rt should have given no weight to Henderson's valuation testimony. Without He

nderson' s testimony , there i s no proof of diminuti on invalue damag es; therefore, there can be no award of such da mages in this case. Inman v. Union Planters Nat'l. Bank , 634 S.W.2d 270, 272 (Tenn. App. 1982). This Court has long hel d that the measure of damages for injury to real prope rty is the difference

between the reasonable market value of the premises immediately prior to and immediate

ly after injury, but

if the reasonable cost of repairing the injury is less than the depreciation in value, the cost of repair is the lawful measure of da mages. Fuller v. Orkin Exterminating Co.,10

Inc. , 545 S.W.2d 103, 108 (Tenn. App. 1975). See also Williams v. Southern Ry. , 396 S.W.2d 98, 101 (Tenn. 1 965); Killian v. Campbell , 760 S.W.2d 218, 222 (Tenn. App. 1988). McKinnon v. Michaud , 260 S.W.2d

721, 727- 28 (Tenn . App. 195 3); Mink v. Majors , 279 S.W.2d 714, 716 (Tenn. App. 1953). Hender son did not p rove the differe nce in va lue immedi a tely before an d immediat ely after construc tion. Thus, there wa s no proof as to the pointin time whe n the prop erty wasalleged ly damage d by $6,500.00. In Haynes v. Cumberland Builders, Inc. , 546 S.W.2d 228 (Tenn. App. 1977), this Court held that evidence regarding the diffe rence i n value is to be made at a time certain. Specific ally, this Court held that the party seeking damages has the burden of proving ". . . bot h values applied i n the formu la which m

easure s his gene

ral dama ges, the a ctual va lue of the propert y at the time of the contract

and the va

lue of the propert y if it had been as it was represented to him." Id. at 233-34. As noted, the rec ord is lac king in pro of as tothe value of property immediately before and immediately after the driveway was constructed. We hold that o n the rec ord in this case , Hender son’s tes timony as th e proper ty owner of the loss of value to the prope rty is pure speculation, unsupported by even a modicum of substantive evidence and amounts to nothing more than mere conjecture. The e vidence, or l ack thereof, preponderates against th

e trial c ourt’s finding of $6 ,500.00 da mages an d is reve rsed as we are require d to do unde

r Rule 13( d), T.R.A .P. Beech maintains that the trial court erred in failing to find that the parties, i.e. , Henderson and Beech, had entered into an oral contract providing for liquidated damages of $700.00 if repair of the footprin ts failed to

satisfactorily cure the defect. We think this issue is moot in consideration of the disallowance by this Court of the damages awarded to Henderson by the trial judge. Neverth eless,

we would simply point out that altho ugh Beec h strenuously argued t his issue b efore t

he trial c ourt, the chancellor did not

award th e $700.00 to Hende rson in its j udgment. In short, by clear and logical implication, the trial court denied Beech’s contention when it awar ded Henderson $6,500.00 based solely on her testimony as to damages. This issue is denied for the reasons stated. Henderson asserts that the judgment awarded to Beech should be s et aside because, inter alia , the cost of repa iring the d

efectiv e drivew ay exce eded the contrac t price. In suppor t of this contention, Henderson cites two cases, Estate of Jessee v . White , 633 S.W.2d 767 (Tenn. App. 1982) and Wilhite v. Brownsvil le Concre te Co., Inc. , 798 S.W.2d 772 (Tenn. App. 1990). Examination11

of these ca ses reve als that w hile persuasive, they are not controlling. Both cases involved instances in which the construc tion resu lted in a p roduct th at was totally ina dequate (emphasis ours) for

the purpose intended, i.e. , a driveway in Estate of Jessee and a swimming pool in Wilhite . Such is not t he case here. It would appear that the dr iveway is structurally sound and has been used b y Henderson for its intended purpose for the last two and a half year s. Accordingly, we find Appellee's argument meritles s. Further , we have caref ully exam ined the r ecord in this c ause and

we fin d no evidence whatsoever of cost of repairs to the drivewa y to suppor t Hender son’s con tention. T

his issue is denied.

PRE-JUD GMENT INTER EST Beech is asking th

is Court to g

rant pre -judgmen

t interes t pursu an t to T.C.A. § 47-14-123 (1979). Pre-judgment interest, as an equitable principle, has long been held by the law of Tennessee to be wi thin the sound discretion of the trial court. Fisher v. Klippstatter , 689 S.W.2d 8 70, 87 1 (Tenn. App. 1985 ); Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 446 (Tenn. 1992). The trial court refused Beech’s prayer for pre -judgmen t interes t and we w ill not say t hat it abu sed its discretion in doing so. Judgmen t is award ed to Bee ch in the a mount of $8 ,380.00 w ithout pre -judgmen t interes t. Costs are taxe d against

the Appellee Henderson f or which let exec ution issue

if nece ssary. Th

is cause is remande d to the tri al court for exe cution of

the judgme

nt of this Court.

___ __________________________ _______________

_ WILLIAM H. WILLIAMS, SENIOR JUDGE

CONCUR:

______________________________________ ALAN E. HIGHERS, JUDGE

______________________________________ DAVID R. FARMER, JUDGE