### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 5, 2001 Sessio

n JERRY T. BEECH CONCRETE CONTRACTOR, INC. v. LARRY

POWELL BUILDERS, INC., ET AL 

### . Appeal from the Chancery Court for Davidson County No. 99-725-III Ellen Hobbs Lyle, Chancellor

No. M2000-01704-COA-R3-CV - Filed May 9, 2001

This is an action by a contractor to receive the balance due under

a contract for the construction of two buildings. The owner counterclaimed for damages alleging lac k of good workmanship. A principal issue concerne

d attorney f

ees, and whether a document purporting to be a contract was, in fact, a contrac

t. We hold thatthe document proffered by the plaintiff was accepted a s a contract by the defendant, and that the attorney fee provision is enforcea ble. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded
W ILLI AM H. I NMAN , S R
. J., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R . and D. M ICHAEL S WINEY , JJ., joined. TimothyW. Burrow, Nashville, Tennessee, for the appellant, Jerry T. Beech Concrete Contractor, Inc. John R. Reynolds, Nashville, Tennessee, for the appellee, L arry Powell Builders, Inc., Larry Powell and Larry Powell Builders. OPINION This litigat ion ari ses from a document styled “Job Contract” submitted by Jerry T. Beech Concrete C ont ractor, Inc. (Beech Concrete) to L arry Powell Builders to furnish materials for and install pi ers, footing s and slabs for two buildings according to plans. The “contract amount” was $66,627.00. Upon completion of the work, Larry Powell Builders withheld $10,00 0 .00 pendin g a resolution of “some amou nts to backcharge.” Whereupon, the plaintiff filed suit in the General1 Transferr ed to Cha ncery Cou rt. 2 The plai

ntif f fi led a l ien t o secur e paymen

t of i ts cl aim. -2- Sessions Court 1 against Lar ry Powell Builders, Inc., alleging a breach of contract for failure to pay as contracted. The defendant responded that the plaintiff failed to perform in a workmanlike manner and thus breached the cont ract. 2 The defendant corporation thereupon filed a counterclaim for damages alleging only that the plaintiff and cou

nter defendant “

failed to perform the job contract.” The plaintiff amended its complaint to join Larry Powell Builders and L arry Powell as defendants,

alleging that it “entered into a contract with Larry Powell Builders or, in the alternative, Larry Powell or, in the alternative, L arry Powell Builders,

Inc.,” and asserted the same allegations against the added defendants that it asserted against Larr y Powell Builders, Inc.
All three named defendants filed a joint answer to the amended complaint. They admitted the plaintiff contracted

with Larry

Powell Builders,

Inc.; they denied any

contract with L

arry Powel

l, ind ivi dua lly, or w ith Larr y Pow ell Bui lde rs, a no nen tit y. Following a benchtrial the Chancellor found (1) that Larry Powell Builders, I

nc. contracted withBeech Concrete to perform certain concrete work; (2 ) that the document “Job Contract” was a bid submitted by

Beech Concrete and was not a contract between the parties; (3) that the def endant ag r eedand accepted the terms on pricing and performance as the “job contrac t” provides; (4) that the defendant

never agreed to the attorney fee provision in the job contract; (5) the case against Larry Powell individually

and Larry Powell Builders was dism

issed; (6) that the

plaintiff Beec

h Concrete failedto perform its work according to the plans, in that (a) it made a monolithic pour, rather than an isolated pour for each pier, which was unauthorized; (b) Beech Concrete failed to install anchor bolts; (c) the floor as finished is unreasonably varied in elevation. The C hancellor f ound damages as follows : (1) Powel l sustain ed $300.00 damage s fo r mas onr y, described as uncontes ted; (2 ) $250.00 for the anchor bolts; (3) $963.00 for the repair of cracks in the concrete; (4) $1660.00 for t he inter ior firewall work and extra work caused by the uneven floor. The ag gre gate of these items was deducted from the $10,000.00 retainage, and judgment was entered for the plaintiff for $6,827.00.
With respect to the co

unterclaim alleg

ing structural d

amage, the Chan

cellor credit

ed th e testimonyof an expert that the mono lithic pouring of

the concrete

contributed to the cracks around the corner columns, which were aesthetic only and no cause for conce rn. Because the

expert testified that the monolithic pour was not “approved by the codes,” Mr. Po

well would

have to divulge that fact to potential buyers, and was thus entitled to rec

over $2,000.00 fo

r the cost of an ins

pection to allay the doubts harbored by a pr ospective purchaser. The plaintiff app

eals and presen

ts for review the

following issues:-3-

I. Whether

the court erred in finding that there was no contract

between Beech Concrete and any defendant II. Whether

the court erred

in not awarding attorneys’ fees and costs in favor of Beech Concret

e III. Whether

the co u rt erred in finding that the preponderance of the evidence supported the assessing of Beech Con crete w ith $1,660 in damages for drywall work IV. Whether

the court erred in awarding $2,000.00 to Larry Powell Builders, Inc., in the event it must pay for an inspection by a potential buy er V. Whether

the court erred

by not finding

Larry Powell personall

y liable to Beech Concret

e VI. Whether the court erred in releasing the lien. Appellate review is de novo on the record accompanied with the presumption that the finding of fact is corre

ct unless contrar

y to the prep

onderance of th

e evidence. Rule

13(d) TRAP.
I.
We find that the evidence preponderates against the Chancellor’s finding that the document styled “Job Contract”

was not a contract, but only a bid submitted by the plaintiff. While the Chancellor

did not dwell on the f

act that none of th

e named defenda

nts signed the doc

ument, it is implied in the ruling that the absence of a signature was the inducing reaso

n therefor. The

proof is clear on the point that Powell accepted the contract and undertook its performance. Any reasonable form of acceptance is binding. See, Restatement, 2d Contract, § 30 (1981). And an unsigned contract may become binding if a par ty by his or

her acts and conduct indicates assent to its terms. 17 C.J.S. Contracts , § 48 (1999). More over, Larry

Powell testified tha

t the terms and conditions and scope of work “were acceptable to Larry Powell Builder, Inc.” and that after he receive d the Job Contract he c ontacted the plai

ntiff’s represe

ntative and “told h

im this w a s acceptable to me and asked him when they could actually start the job.”
II. The Chancellor

disallowed attorn

ey fees be cause the only

terms in the “Job Contract” which the parties discussed and acted on and indicated acceptance of are the pr ice and performance specifications.

We have found that the evidence preponderates against the finding that the document styled “Job Contract” was merely a bid, and not a contract. We further find that the contract

was not divisible, and that it was accep ted in its en tiret y. Accor dingl y, the p rovis ion of the co ntrac t “If client fails to pay as ag

reed, Jerry

Beech Concret

e is entitled to rec

eive attorney

fees and all cost

s associated

withthe collection of

this debt including

any costs extended by Jer

ry Beech Concrete to enforcethis agreement

” is enforceabl

e as contractual in nature. See, Owen v. Stanley , 739 S.W.2d 782 (Tenn. App. 1987) ; Remco Equipment Sales, Inc. v. Manz , 952 S.W.2d 437 (Tenn. App. 1997). The case is remanded for a determination of a re asonable fee in accordance with Connors v.-4-

Connors , 594 S.W.2d 672 (Tenn. 1980), In re: Estate of Da vis , 719 S.W.2d 575 (Tenn. App. 1986) and Disciplinary Rule 2-106 of the Code of Professional Responsibility, Rule 8 of the Rules of the Supreme Court.
III. The drywall sub

contractor cha

rged $1,660.00 t

o Beech Concrete (the prime contractor) for additional work necessitate d, according to

the drywal

l subcontractor,

because th

e f loor was not level. It sloped three and

one-half inches

from front to bac

k. The difficulty

with this award

is found in the testimonyof the subcontractor, who testi fied, upon being asked why he simply did not cut the drywall on an angle to fit the slope, said “A. I guess we didn’t think ab out it. . . .” He further testified, when asked if his charges would have been about one-thirdof $1,660.00 if he had cut the drywall to fit the slope, said “(w)ell, it would have been at least half or more.”
In light of this testimony, the award of $1,660.00 is not supported by a preponder ance of the proof, and the judgment will be modified by reducing this award to $830.00.
IV. The Chancellor awarded the counter-plaintiff $2,000.00 damages because of the

ugliness of the cracks in the concrete. This award was based upon the somewhat unique rationale that since the cracks did not affect the structural integrity of the buildings, they would adve rsely affect the marketability

of the property

which could possibl

y be averte

d by an inspe

ctio n by a qualified engineer which would allay any purchase r’s fears about the significance of the cracks. The Chancellor

“arr ived at the amount ( of $2,000.00) bec

ause that’s the c

ost of an inspectio

n . . . to ensure a potential buyer that there is not any structural damage . . .” Beec h Concrete argues that this award is purely speculative, because there was no proof of the c ost of an inspection, superimposed upon the fact that no e

vidence was off

ered as to the cos

tof repairing the crack, diminution in value of the buildings, and the like. The expert, Mr. Bucy, employed by the defendants, testified concerning the iss ue of a monolithic

pouring of

the concrete vis-a-vis

an isolated pouring. He said the plaintiff deviated from the plans in ma king t he mo nolithic pour, which called into question the structural integrity of the construction. Mr. Bucy recommended some form of demolition testing which he opined would cost “1 ,500.00 to $1,000.00 real quick” which “[m]ight be on the low side.” Given thi s te sti mon y w e cannot find that the evidence preponderates against the award.
V. The Chancellor decl

ined to hold Lar

ry Powell pe

rsonally liable, holding that the contract was made with Larry Powell Builder, I nc. The r ecord is replete with testimony that all of the parties recognized

that Larry

Powell Build

er, Inc., the record owner of the property , was the contractee. This point need not be further labored.-5- VI. The Chancellor released the lien impressed upon the property before the suit was filed in the General Sessions Court, apparently because of the subsequent judgment lien. The plaintiff complains of the ordered release of the lien. We note that the plaintiff caused an attachment to issue, and when the case was transferred by ag reement to the Chancery

Court, did

not thereafter pursue the attachment actio

n. Under these ci

rcumstances the

point is moot. VII. Fin all y, we address the issue of discretionary costs raised by the

plaintiff. The Chancellor ruled that Beech Contract was not entitled to recover such costs. Rule 54. 04 (2) provides tha t a party requesting discretionary costs shall file and serve a motion within 30 days after

entry of jud

gment. The record does not reflect that such a motion was filed. The Chancellor did not err in refusing to award such costs

. The judgment, as modified, is affirmed and the case is remanded to the trial court for app rop ria te a cti on. Cos ts o f app eal are a sse sse d to the part ies equ all y.

___________________________________ WILLIA M H. INMAN, SENIOR JUDGE