### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JULY 9, 2001 Sess

ion PRECISION MECHANICAL CONTRACTORS, ET AL 

### . v. METROPOLITAN DEVELOPMENT AND HOUSING AGENCY Direct Appeal from the Chancery Court for Davidson County No. 98-1433-III; The Honorable Ellen Hobbs Lyle, Chancellor

No. M2000-02117-COA-R3-CV - Filed October 25, 2001

This appeal arises from a dispute over two co nstruction contracts. One contract involved the replacement

of furnaces at the Preston Taylor Homes Housing Project, and the other contract was for underground

utilities and site wo

rk at the Tony

Sudekum Homes Housi

ng Project. Plaintiff filed suit seeking additional compensation based upon its performance of the two cont ra cts with Defendant. The trial court gra nted Defendant’ s motion for an invol untary dismis sal after the clo se of Plaintiff’s pro

of. For the follow

ing reasons, we

affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined. Don L. Smith, Kenneth S. Schrupp, Nashville, for Appellant H. Frederick Humbracht, Jr., Russell B. Morgan, Nashville, for Appellee
OPINION Facts and Procedural History
The Appellant, Precision Mechanical Contractors (Precision), i s a Tennessee cont ractor. The Appellee, Metropoli tan Develop ment and Ho using Age ncy (M DHA), is a governmental housing agen cy. This dispute arises from two separate co

ntractsfor construction

entered into by

the parties: the Preston Taylor Hom

es project, and the T

ony Sudekum H

omes project. Pre

cision filed suit against MDHA, alleging breach of contract and unjust enrichment.-2- The Preston Taylor Homes Contract
Precision and MDHA entere d into the Preston Taylor contract on September 12, 1995. The contract called for Prec

ision to “furnish a

ll su pervi sion, labor, mater ials, equipment an

d services, including related accessories and specialties for replacement of gas furnaces. . . .” Specifically, the contract called for the r

eplacement of f

urnaces in appr

oximately 55 0 units at the Preston Taylor H ousing Proj ect, including the necessary venting, piping, etc . The contract amount was $1,208,580.00, and the contract called for completion within 240 days.
Once the work began, various issues arose. First, Precision h ad planned to use a

substitute furnace. There was some controversy surrounding the manufac turer’s recommendation s t hat the substituted Rheem furnace s hould be installe

d on a dedic ated circuit. Also, issues arose over the manufacturer’s recommendations that a condensate line should be installed to remove the co ndensate that would form. Furthermore, in the fiv e bedroom units, it was determined that one unit was inadequate, and

that an additional

unit would

be necessary. Finally, Precision claims that MDHA repeatedly

refused requests for final inspections. Moreover, Precision claims that thes e de lays caused them damages. Following final payment on the project, Precision filed suit for alleged extra work and costs associated with delays. Specific all y, Pre cision alleges t he following dam

ages on the Pres

ton Taylor Pr

oject: $73,084.78 as a direct cost for delays ; $136,338.25 for d isputed change

orders; and $270, 310.80 in unabsorbed home office overhead damages. The Tony Sudekum Project
Precision and MDHA entered into the contract for the Tony Sudekum project on August 29, 1995. The contract ca

lled for Precision

to “furnish

all supervision, labor, materials, equipment and services,includin g all related accessories and specialties for replacing water and g as lines and sanitary sewerage system. . . .” The contract amount was $1,708,

741.00. Precision c

laims that its bid was a lump sum bid and was not tied to the specific line items contained in the bid package.
An issue arose over

the line item “Unc

lassified Excavat

io n.” Pre cision claimed that they were entitled to additional monies for unclassified excavation. MDHA disagreed, t aking the position that the excavation Pre

cision was seekin

g extra pay

ments for was incl

uded within the spe

cific categories of work.
Oth er issues also arose regarding the Tony Sudekum project. Spec ifically, there w a s controversy

surrounding a proposed road extension that MDHA deleted from the contrac

t because the road ext

ension was deleted from the scope of the work. Precision also claims additional damages from delays it attributes to MDHA. Spe cif ica lly, Precision alleged the following damages on the Ton y Sud ekum Project: $36,500.00 that MDHA withheld as liquidated d amag es; $677,206.25 in d isputed quantity-3-

calculations and unapproved c hange orders;

and $464,491.56 in

unabsorbed home office overhead damages.
The case was tried in

Davidson County

Chancery C

ourt from July 1 0 through July 13, 2000. At the close of Precision’s proof, MDHA moved for an involuntary dismissal pursuant to Rule 41.02 of the Tennessee Rules of Civil Proc edu re. The trial judge granted MDHA’s motion for an involuntary

dismissal as to all of Precision’s claims except Precision’s claims to recover liquidated damages assessed by MDHA on the Ton y S udekum pro ject. After the court m ade its rul ing, Precision then nonsuited its claim for liquidated damages assessed by MDHA on the Tony Sudekum project. The court entered its final order on August 3, 2000, and Precision timely filed a notice of appeal. Precision appeals the decision from the court below and presents the following issues for our review:
I. Whether the trial court erred in ruling that Precision had failed to provide sufficient notice of its claims to MDHA. II. Whether

the trial court erred in

ruling that Precision had failed to present proof of damages resulting from d

elays on the

projects. III. Whether

the trial court erred in ruling that Precision had failed to present proof of the actual value of the work performed. IV. Whether the trial c ourt erred in den

ying Prec ision recovery

on its claims. MDHA presents the following additional issue for our review: I. Whether

the trial court erred in holdingthat the Eichleay formula was anappropriate method of calculating

Precision’s claim

ed damages.
Standard of Review In pertinent p

art, Rule 41.02(2)

of the Tennessee

Rules of Civil Proce

dure provides:
After the plaintiff, in an action tried by th e cou rt w ith out a ju ry, has completedthe presentation of plaintiff's e

vidence, the def

endant, withoutwaiving the right to offer evidence in the event the motion is notgranted, may move for dismissal on the ground that u

pon the facts and the law the plaintiff has shown no right to relief.
When such a motion is made, the trial court must impa

rtially weig

h and evaluate th

e evidence just as t hough it were ma

king findings of

fact and conclu

sions of law after

presentation of a

ll th e evidence. See Atkins v. Kirkpatrick , 823 S.W.2d 547, 552 (Tenn. Ct. App. 1991). If the plaintiff 's case has not

been established

by a prepon

derance of the

evidence, the c

aseshould be dismissed if, on the facts found in the applicable law, the plaintiff has shown no right to relief. See id. (citing City of Columbia v. C.F.W. Constr. Co. , 557 S.W.2d 734 (Tenn. 1977)). Our review of a dismissal under Rule 41.02(2 ) of the T ennessee Rules of Civil Procedure is controlled by Rule 13(d) of the Tennessee Rules of Appellate Procedure. The findings of fact by the trial court in

granting such a-4-

motion are accompani ed by a pr esumption of correctness and, unless the preponderance of the evidence is otherwise, those findings must be affirmed. See College Grove Water Util. Dist. v. Bellenfant , 670 S.W.2d 229 (Tenn. Ct. App. 1984); Akbari v . Horn , 641 S.W.2d 506, 508 (Tenn. Ct. App. 1982). Law and Analysis The Preston Taylor Project
We will address P recision’s issues as they arise in the trial judge’s findings of fac t and conclusions of law. After Precision selected an alternative furnace, it was subsequently discovered that the building code regulations required a separate drain line for the furnac e unit’s con densate

. Precision submitted a request for a change order to MDHA, but the change order was denied.
We note that the contract required that the installation be performed according to the manufacturer’s specifications. It is undisputed

that the specif

ications for the alternative furnace submitted by Precision required that a condensate line be installed. At trial, Mr. Anderson, who is the general managing member of Precision, testified that he did no t read th e product litera

ture to determine if the alternativ e Rheem unit requir

ed a condensate

li n e. Mr. Anderson a lso ac know ledged

that the contract required Precision to install the units in accordance with the manufacturer’s recommendations. In ruling on th e condensat e issue, th e trial jud ge found the f ollowing:
As to item one, the con

densate line on the

Rheem unit, the court determines that the plaintiff s did not perform the requirements of the co ntract so as to be entitled to recovery on this claim. Speci fically , the court finds that the plaintiffs have not car ried thei r burden of proof to show that they performed the requirements of Article 29(e) and (f) of the Ge

neral Conditions to q

ualify for an adjustment. Section 29(e) of t

he contract stat

es in relevant pa

rt that: The Contractor must assert its right to an adjustment und

er this clause within 30 days after (1) rec

eipt of a written change order under paragraph (a) of

this clause, or (2) the furnishing of a written notice under paragraph

(b) of this

clause, by submitting a written statement describing the general nature and the amount of the proposal . . . No proposal by the Contrac tor foran equitable adjustment shall be allowed if asserted after final payment under this contract.
Due to the foregoing contract language and after a review of

the record, we agree with the trial court that Precision did not comply with the requirements of the contract. Therefore, we find that this issue is without merit.-5-

The next issue involves the two bedroom units. Originally , the design cal

led for the units

to be vented so that the pipe would be snug against the ceiling. However, the building codes required a different method of v enting. MDHA instructed Precision not to proceed with the installation in the two bedroom units until MDHA could determine the appropriate installation method. Precision alleges that this action by MDHA caused them delay s, which also caused them damages. In ruling on th is issue, t he trial cou rt stated t he followi ng: [T]he trap created by the pipe dropping un de r the beam in the twobedroom units, the Court determines that there is not proof by the plaintiffs of [the] fact of damages. The plaintiffs have not carried their burden of proof

to demonstrate the existence or fact of damage caused by alleged delay

s. For example, there was no proof that the plaintiffs hadto stop work or wer e secluded from otherjobs. The Court concludes that there was ina dequate proof there existe

d any damag

e to the plaintiffs as a result of the delay. After a thoroug

h review of the r

ecord, we agr

ee with the trial c

ourt that Precision

failed to carry

its burden regarding damages caused by t he delay. Pr ecision did not show

that crews were

idle as a result of the delays, nor

did Precision prove that they suffered increased costs. Accordingly, this issue is without merit. Next, we turn to the dedicated circuit issue. As Precision was beginning its work replacing the furnaces, Precision was instructed that the new furnaces had to be installed on dedicated cir

cuits in order to comply with the Code. Precision complie d and installed the

furnaces on ded

icated circuits. Precision then submitted change orders to MDHA , whic h were rejected. Once again, we note that Mr. Anderson testified at trial that Precision wa s required under the contract to comply with the manufacturer’s recommendations

. Also, Mr. Anderson admitted that the Rheem unit specifications state that it is to be installed on a dedicated circuit. In ruling on th is issue, t he trial ju dge stated the following: [ t]he C ourt determines th at this is a situation w

here there was

a specificationfrom the manufacturer, that

. . . specification required the contractor

to be aware of th

at. And so any

cost associated w

ith installing the dedicated circuit according to the manu factur er’s specifications is part of the contract, and the contractor i s bound by that.
After a careful review of Mr. Anderson’s testimony and the re cord, we agree with the trial co urt

. Therefore, this

issue is without meri

t. Next, we address the inspection issue. As Precision would finish its

work on units at Preston Taylor, it would request that MDHA inspect those

units to determine any

punchlist items that

would needto be addressed p

rior to final a

cceptance. P recision alleges that MDHA repeatedly refuse d-6-

requests for inspections, a nd in some cases, Pr

ecision allege

s that MDHA would no

t inspect units until several months after Precision had completed its work on the unit. MDHA counters by arguing that Precision did not present any evidence of increased costs of perf orming the work

as a result

of the alleged d elays. In ruling on this issu e, the trial judge state d the follo wing:

As to item number four

, on the Preston Tay

lor Project, this inv

olv e s whether Mr. Morrow didn’t perform inspections alongside the work or if he had a punch l

ist that just contain

ed trivial i

tems. The Court determines again that ther e is no proof of fa

ct of dam ages. The plaintiffs haven’t carried their burden o f proof to demonstrate the existence or

fac t of damage ca

used by alle

ged delay

s. So their recovery is denied because there’s no fa ct or law basis for it.
We note that Precision has failed to point us to any evidence in the record where its delay damages are quantified by competent proof. In addition, our own review of the record

fails to reveal any proof of damages caused

by th e al lege d de lay. As a result, we find no error with the trial court’s ruling on this issue. Next, we turn to the issue regarding the five bedroom apartments requiring an extra furnace in each unit. Precision claims that they were delay ed due to having to install an extra unit. The trial court held that:

As to item five, the five-b

edroom apartmen

ts requiring more units, the Courtdenies rec overy on this claim because the plaintiffs did not perform the requirements of the contract to entitle them to recov er y. Specif ically , the five-bedroom units are covered by Change Or der number one and the plaintiffs failedto follow the procedures outlined under Arti cle 29 soas to qualify for additional costs due for those changes or on th

e five-bedroom u

nits.
We note that change order number one granted Precision extra compensation and an additional one hundred day

s to perform the contract. Article 29(e) of the contract that governed this project states the follow ing:
The Contractor must assert its right to an adjustment unde

r this clause within 30 days afte

r (1) receipt o

f a written change order under paragra ph (a) of this clause

, or (2) the furni

shing of a writte

n noti c e under paragr a ph (b) of this clause, by submitting a written statement des cribing the general na ture and the amoun

t of the proposal.

If th e facts justify it, the Cont

racting Officer may extend the period for submission. The proposal may be included in the notice required under paragraph (b) above. No proposal by th e Contractor for an-7- equitable adjustment shall b

e a llowed if asserted after final payment under this contract. (emphasis

added). After a

review of the record, it is evident that Precision did not comply with the aforementioned

contract language. Therefore, we agr ee with the trial court tha t Precision is not entitled to recovery on this issue. The Tony Sudekum Project
The first issue that we address regarding the Tony Sudekum Project is Pr

ecision’s claim

that it is entitled to additional compensation due to alleged “unclassified excavation.” MDHA took the position that the excavation was included in the specific categories of work, such as sewer

lines, water lines, and gas lines, and that no additional payments were war ranted. Th us, MDHA rejected Precision’s claims for alleged “unclassified excavation.” In ruling on this issue, the trial court stated the follow ing: [T]he Court determines w ith resp ectto item one the unclassified excavation, that there is no ambiguity. The contract provides as to the specific items in dispute, that no additional payments will be made for trench ing or backfilling. The Court determines there’s not an amb igui ty, that this more specific language controls any gen eral language in Item

54. So the Court denies recovery for that unclassified excavation claim o

n that basis.
Item number 39 of the Tony Sudekum contract states the f ollowing , in pertinent par t: “[t]rench ing, backfilling, shoring and bracing shall be considered

and designated as a necessary part of the construction and no separate payment will be made thereof.” Item number 54 of the contract states that UnclassifiedExcavation include s “all labor, mate

rials and equipme

nt necessary

to perform excava tion as needed to perform work as set forth by these documents . . . [t]renching, B ackfilling andCompacting for U

tilities.” We note the

well settled rule

of contract interpretation that particular andspecific provisions of a contract prevail over general provisions. See Sou the rn S uret y C o. v. Town of Greeneville

, 261 F. 929 (6th

Cir. 1920). Accordingly, we agree with the tria l judge that the specific language in item number 39 prevails over the general langua ge in item number 54. Therefore, we

find this issue to be w

ithout merit. Next, we address

Precision’s claims for additional compensation for the following work on the Tony Sudekum Project: sod and seed replacement; sidewal ks; landscapin g; clothes lines; curbs and gutters; valve boxes; and handicap parking

. Precision also attempted to obtain additional compensation for various work that they submitted on Pay Request Number 13. In ruling on t hese issues, th e trial cour t stated th e followin g:

[T]he Court finds the plaintiffs did not perform the requirements of the contract so as to entitle them

to recovery. Specific a lly, the plaintiffs haven’t carried their burden of proof to show that they fulfilled the-8- requirements

of Articles 29(e) and (f) of the G eneral Conditions to qualify for

the adjustments.
Article 29(e) of the General Conditions governing the Tony Sudekum project state the following:
The Contractor must assert its right t

o an adjustment unde

r this clause withi n 30 days after (1) receipt of a written chang e order unde r paragraph (a) of this clause, o r (2) th e furnishing of a written notice under paragraph (b) o f this clause, by submitting a written statement describing the general nature and the amount of the proposal. If the facts justif

y it, the Contracting Officer may extend the period for submission. The proposal may be included in the notice required underparagraph (b) above. No proposal by the Contractor for an equitable adjustment shall be allow ed if asserted after final payment under this contract. (emphasis

added). The aforementioned language is clear in its requirement that the contractor must assert its claim for an adjustment before final payment under the contract. Upon a rev iew of the record, we find no evidence that Precision complied with the requirements set out in Article 29(e) of the General Conditions to the Tony Sudeku m Project. As a result, we find no error with the trial court’s ruling on this issue. Next, we address Prec

ision’s claim

that it is entitled to quantum meruit. In Castelli v. Lien , 910 S.W.2d 420 (Tenn. Ct. A pp. 1995), the middl

e s ection of this court discussed in detail the doctrine of quantum me ruit. The co urt stated the follow ing:

Quantummeruit actions ar e equitable

substitutes for contract

claims. They enable parties who have provided goods and services to another to recover the re

asonable value o

f these goods and services when the following five circumstanc es exist: (1) there

must b e no e xisting, enforceable

contract betwe

en the parti

es covering the same subject matter; (2) the party

se eki ng recovery must prove that it provided valuable g oods and services; (3) the party to be charged must have received the goods and ser

vices; (4) the cir

cumstances must ind

icate that the parties involvedin the transaction s hould have reaso

nably understoo d that the person providing the goods or services expected to be compensated; (5) the circumstances must also demonstrate that it would be unjust for

the party benefitting from the goods or services to retain them witho

ut paying f

or them.
Id. at 427 (internal citations omitted). “[Q]uantum meruit recoveries are limited to the actual value of the goods or services, not their contract price.” Id. In the instant case, the trial cour t denie d-9-

Precision’s claims for quantum mer uit o n both the Preston Ta ylor and the

Tony Sudekum

Projects because the court found that there was no proof as to the actual value of the services re ndered.
We also note that “it

is a general ru

le of law that an implied contract or quasi-contract will not be imposed in circumst

ances where an

express contract or agreemen t exists.” W.E. Scandlyn v. McDill Columbus Corp. , 895 S.W.2d 342, 349 (Tenn. C t. App. 199 4) (quotin g Fletcher Realty, Inc. v. Hayslope Properties , 712 S.W.2d 478, 481 (T enn. Ct. App. 1986)). In the instant case, there was clearly an express contract

between Precisi

on and MDHA that g

overned both

the Preston Taylor and the Tony Sudeku m proje cts. The contracts contained specific provisions that address the issues presented by Precision

in this case. As a

result, we agree with the court below that this is not a proper case for recovery

under the doctrine

of quantum meruit. Therefore, we find this issue to be without merit.
For

the aforementioned reasons, we find that the trial court did not err in denying Precision’s claims. Now, we turn to MDHA’s issue. MDHA asserts that the trial court erred in holding the Eichleay formula was an appropriate method of calculating Precision’s claimed damages. Due to our affirmance

of t he t ria l co urt ’s gr ant of M DHA ’s M oti on f or In vol unt ary D ismi ssal, we decline the invitation to address the Eichleay issue, as it is pretermitted.

Conclusion
For all of the af

orementioned reasons, we affirm the judgment of the trial court. Costs on appeal are taxed to the ap

pellant, Precisio

n Mechanical Cont

ractors, for whichexecution may issue if necessary.

___________________________________ ALAN E. HIGHERS, JUDGE