# FILED

December 17, 1997

Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE

GARY BIR

DWELL, individua

lly and ) d/b/a BIRDWEL L HOME BUILDE RS, ) ) Plaintiff/Counter-Defendant / ) Robertson Circuit No. 6973 Appellee, ) ) v. ) Appeal No. 01A01-9701-CV-00023 ) BRADLEY S. M cKINNE Y and ) ELIZABETH P. McKINNEY, ) ) Defend ants/Count

er-Plain tiffs/ ) Appellan ts. )

APPEAL FROM THE CI RCUIT COURT OF ROBERTSON COUNTY AT SPRINGFI

ELD, TENNESSEE

THE HONORABLE JAMES E. WAL TON, JUDGE

For the P laintiff /Counter- Defend ant/ For the D efenda nts/Counte

r-Plainti ffs/ Appellee : Appellan ts : Homer R. A

ye rs Steven E. Anderson Goodlettsville, Tennessee Nashville, Tennessee

AFFIRMED IN PA RT AND REVERSED IN PART

HOL LY KI RBY LI LL ARD , J.

CONCURS: DAV ID R. F ARM ER, J. SAM UEL

L. LE WI S, J.OPINION

This case arises out of the construction of a home. The builderfiled suit against the homeowners for mon ies allegedly due him, and the homeowners countersued for alleg ed contract breache s and defects in construction. The trial court found that both parties had br eached the contract and awa rded damages to

both part ies with a balance due the bu

ilder. B oth parties appeal. We affir m in part a

nd rever se in par

t. In 1993, Plaintiff/Counter-Defendant/Appellee Gary Birdwell (“Birdwell”) and Defend ant/Counte

r-Plainti ff/Appe

llants Bradley

and Elizabeth McKinney (“ McKinneys”) entered into a contract for Birdwell to construct a r esidence for the McK in ne ys i n R ob er ts on Co un ty, Tennessee. The contract incorporated by reference plans and specif ications and set forth a contract price of $158,472. 00, subject to certa in “allow ances”specified within the agreement. The parties agreed that the purchase

price wo uldnot exceed this amount so long as the costs listed in the allowance provision

did not exceed the am

ounts stipulate

d. The contract stated that all modifications must be in w riti ng. Construction on the house be gan in A ugust of 1993. The parties continually bickered about

numerous alleged deviations during t he constr uction. B radley

McKinne

y be gan to

closely oversee the progress of the construction an d even beg an to pay some of the sub-contractors directly

for allowance item s. The McKi nneys moved into the house in May 1994 before the home was completed, and changed the locks. At the scheduled closing in June 1994, the McKinney s refused to pay the full contra

ct price. Consequently, B irdwell filed this lawsuit. The McKinneys had a

lready tende

red to Birdwell $92 ,000.00. In hislawsuit, B irdwell claimedthat he wa s owed the total sum of

$41,877.6 5. This included the remainder of the contract price du e (less a

llowance items for which the McK inney s had reimbursed h

im) plus $4,151.65 for the McKinney’salleged

refusa l to pay him for ce

rtain modi fication s or addit ions to the

agree ment. The McKinne

ys c ountersu ed for a

lleged breach es of the contract and alle ged defects in construction committed by Birdwe ll. The McKinneys soug

ht damages totaling $22,184.86. Both parties s ought a

ttorney s’ fees

. After a bench trial, the trial cou rt held tha t both parties had breached the contract. The trial court found that Birdwell had breached the c ontract by var ying fr om the plans. It also found that the Mc Ki nn eys had breached the contract, b y refus ing to pay f or construction performed, making modifica tions during the co nstructio n, and inte rfering with Bird

well’s a bility to perfo rm.2

The trial court found that Birdwell had incurred damag es total ing $40,377 .11. The trial court also found that the McKinney s incurred damages of $2 9,957.01 a s a result of Birdwell’s breach. After se

tting of f the dam age a

wards, th e trial c ourt held

that the Mc Kinney s owed B irdwell

a total of $10,420.10. Neither party was awarded attorney s’ fees. Both parties now appeal the decision of the tri al court

. On appeal, both parties raise a host of issues. The McKinney s assert that the trial court erred by considering alleged oral modifica tions to the contract, whenthe contract explicitly states tha t all modifications must be in writing. I n addition, the McKinneys a rgue that the trial court erred by failing to cre dit the McK inneys the sum of $4200.00 for a llegedly having paid Birdwell twice for

ce rtain bathroom fixtures. The McKinneys f urther contend that the trial court erred b y failing t o credit the McKinneys for

damages caused by

alleged defects in construction cause d by Birdwe ll. The McKinne

ys a lso asser t that the t

rial cou rt erre d by

not awar ding the m attorne ys’ fees a nd a contractor’s pro fit. Birdwe ll alleges on appeal that the trial court er red in finding that Birdwell had br eache d certain provisions of the contract. Birdwell also contends that the proper measure of damag es should have been the

differe nce betw een the v alue of t he house if properly built and the va

lue of the hou se in its defective condition. Birdwell further arg ues that the trial court erred in calculating da mages basedon the testimony of the McKinney s’ expert. Birdwell also seeks attorney s’ fees, prejudgment interest amounting to $5,177.34, and $5000.00 for “additional time spe nd [s ic] and delays in the performance of the Contract cause d by McKinney ’s actions.” Our review o f the find

ings of f act by the trial court is de no vo upon t he record of the trial court, accompanied by

a presumption of correctness of the fac tual findi ngs unless the preponderance of the evidence is otherwise. Tenn. R. Civ. P . 13( d). Questions of law are de novo with no presumption of correctness. Carvell v . Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). The McKinne

ys a ssert fir st

that the trial court

erred in considering alleg ed oral modifications to the contract, in light of the express contractual provision that all modifications to the contract must be in writing and signed by both parties. The McKinney s argue that this clause should be strictly enforced. It ha s been he

ld that wr itten con tracts ma y be orally modified e

ven if the contract contains such a clause. Co-operative Stores Co. v. United States Fide lity & Guaranty Co., 137 Tenn. 609,3

622-23, 195 S.W. 177, 180 (1917). In Moore Construction Co. v. Clarksville Dept. of Elec., 707 S.W.2d 1 (Tenn. App. 1985), the co urt co nsidered a written change orde r requirement in a construction contract. The court held that although such a c lause is valid, it may be waived. Id. at 12-13. Ac cording

to the cou

rt: The waiver of

a written change order

re qu ir em en t b y an ow ne r i s n ot al wa ys requ ired to be in writing but may be the result of the parties’ conduct on the job. Thus, it is not uncommon for cour ts to find that an owner has waived a written notice requirement

in cases where extra work has been orde redverbally by

the owner or the extrawork has been performed with the owner’ s knowledge a nd wit hout its objection. Id. at 13 (citation omitted). In the case

at bar, t h e parti es’ conduct indicates that the clause was waived by the McKinne ys. On numerous occasions throughout the constru ction, the parties o rally consented to deviations from the e

xact spec ificatio ns set for th in the contract. The rec ord indic ates tha t, in fac t, several of these oral modifications were propo se d b y the McKinneys. The evidence does not preponderate against the trial cour t’s finding that the provision was waived, and the trial cou rt did not err by c onsidering oral modifications to the contract. On appea l, the McK

inney s dispute th

e trial c ourt’s fa

ctual findings tha

t the cont ract wa s orally modified with regard

to: (1) an upgra de in plumb ing; (2) stair

parts and labor; (3) garag e door openers ; (4) additional framing for an overhang ; (5) an extension of a water line; and (6) additional insulation. Each of these issues is addressed below. With regar

d to the plu

mbing upg

rade, th e trial c ourt held

that the Mc Kinney s were responsi ble for $1,206.00 in costs resulting from their demand to upgra de the plumbing

from chr ome to brass. Th

e McKinney

argue that no “u

pgrad e” occu rred. Th ey claim tha

t the spec if

ication s section of the contract (“specifications”) pr ovides that several plumbing fixtures are “select,” meaning that the homeo wner chooses the desired ty pe of fixture. The McKinney s also argue that Birdwell has no sta

nding to a ssert thisclaim, since the plumbing sub-contractor is the entity that has not been p aid, and t

his sub-c ontract

or has not filed a c laim with B irdwell. After reviewing the contract

and the evide

nce in the record , the evid

ence pr eponder ates in favor of the trial court’s finding that the McKinney s sought an upgrade from the specifications in the contract. The McKinney s’ argument tha t Birdwe ll has no sta

nding is without mer

it, since the record indicate s that Bir

dwell is lia

ble to the sub-cont ractor for this c ost.4

The trial court hel d th at the Mc Kinney s were li able for $1,214.11 in addition al costs associated

with stair parts and labor. The McKinney s argue that an allowance item spec ified “floor coverings,” and this did not include the handrails and the spindles. Thus, the McKinne ys paid for the costs connec ted with the steps a nd the ris ers but no t for the h andrail s and spind les. The ev idence ind ic at es th at Bi rd we ll di d n ot sa ti sf y hi s b ur de n o f p ro vi ng th at th e M cK in ne ys

were responsible f

or this cost. A plain reading of the term “floor cove rings” in the allowance provision of the contract cannot be cons trued to include the handrails and spindles. The specifications call for

the inst allation of

these handrails. Furthermore, the rec ord does not demonstr ate that the McKinneys de manded an upgrade from the spec ifications set forth in th e contract. Therefore, the trial c ourt err ed in awa rding B irdwell $ 1,214.11 f or these costs. The trial court

held that the McKinneys ow ed Birdwell $436.00 for upgrading the insulation in the walls of the home. It is undisputed that the specifica tions calledfor R-18 insulation. When Bradley McKinney noticed tha

t the sub-contractor

was installing R-13 insulation, he demanded that it be remov ed and re

placed with R-18 ins ulation. B irdwell testified that he had intended to achieve R-18 insulation by installing an R-5 w allboar d, along with the R-13 insulation. As a result of McKinney’s a

ctions, the house now has an insulation class of R-20. Th e t ri al co ur t f ou nd th at th e M cK in ne ys unilaterally modified the contract and, therefore,

were liable fo

r these c osts. In addition to arguing that the contract can not

be orally modified, the Mc Ki nn eys contend that a strict readingof the specifications demands that R-18 insulationbe used. Bradley McKinney

also testified that he was unaware that Birdwe ll intended to use R-5 wallboard. The evidence preponderates in fa vo r o f t he tr ia l c ou rt ’s de te rm in at io n t ha t t he Mc Ki nn eys unilater ally modified the contract. Therefore, B irdwell was properly awar ded $436.00 for this upgrade. The trial court is affirme d on this issue. The evidence also preponderates in favor of the trial court’s finding that McKinney modified the contr act by seek ing th e inst allm ent of garage do or ope ners an d addi tion al fram ing for overh angs and the extension of

the wate r line. Th us, the trial court properly awarded Birdwell $268.00 for the openers, $461.00 for the framing, and $66.00 for the water line extension. The McKinn ey s also cha llenge the trial court’s refusa l to awar d them damages f

or cert ain alleged deviations from the contract by Birdwell. The McKinney s contend that the contract calls for

an attic floor covering 1300 square feet. Birdwell constructed an attic flo or cover

ing 96 sq uare feet.5

The trial court found that the McKinney s had not proven that Birdwell breached the contract

in this respect, because the contract was unclear on this point. The McKinne

ys c laim that i n the “subfloo ring” s ection of

the spec ificatio ns, “attic ” is checked, followed by the phra se, “per plan.” The McKinney s assert that the plans indicate that 2 by 8 framing is to be use d to install

a comple te attic floor. Instead, most of the attic floor consists of 2 by 6 s. The Mc Kinney s argue that the se

cond floo r ceiling calls for 2 by 8s and 2 by

10s and that this demonstrates that the attic floor should not consist of 2 by 6 s. The Mc Kinney s seeks r epair c osts of $3500.00. Birdwell counters that the contract is unclear and that the amount of attic floor installed was

cu st om ar y. Further

more, the archite ct for the

project , Steve Sloa

n, testifi ed that the plans wer e unclear and that he assumed

that McKinney

and Bir dwell would reach an agree ment on this issue. After careful examination of

the plans and the transcript, we find that the preponderance of the evidence does not weigh ag ainst the trial court’s finding that the contract does not clearly r equire the framing and attic floor asserted by the McKin

ney s. Thus, the McKin

ney s have no t carrie d their burden of showin g that the plans c alled fo r an attic floor co nsisting

of 1300 sq

uare feet, and th e finding of the trial court is affirmed on this issue. The McKinne

ys a lso chall enge the trial court’s finding that Birdwell did not breach the contract by installing a showe

r stall opening only 22 inc hes wide. The trial court

held that the plans didnot specify an e

xact dimension and that Birdwell performed “the best he could un der the circumstances.” The McKinneys note that B irdwell conceded that the plans are t o scale. Furthermore, Birdwell conc eded

that “ [i ]t looks like

it probab ly is36 incheson there .” Neve rtheless , Birdwe

ll

co nstructed the opening only 22 incheswide. The

McKinne

ys s eek dama

ges in th e amount o f $900.00, b ased on th

e testimon

y of their expe

rt. The preponderance of the evidence indicates that the McKinney s have shown that Bir dwell breached the contr

act by co nstructing the opening only 22 inches wide. The testimony of the McKinne ys’ expert is the only

proof in the record pertaining to damag es in this regard. Therefore , the trial court’s finding

is rever sed and th

e McKinney s are cr

edited wi th $900.00

on this item

. The McKinne

ys f urther c laim that th

e trial c ourt err

ed by not findin g th a t Birdwell had breached the contract by

failing to gravel

the driveway

all the way

to the roa

d. The county

road is1 The McKinney s’ expert testified that this expense would cost $2,400.00. 6 2/10 of a mile away

from the house. Birdwell gravele d the driv eway up to a lane leading to the county road. The trial c ourt held that the contract is unclear and that, therefor e, Birdwell is not liable. T he McKinn ey s maintain that Bir dwell’s e xpert conc eded at t

rial that it is customary

to gravela drivew ay

all the wa

y to the road. The McKinney s also claim that Birdwell admitted at trial that he did not gravel the “entire drivewa y.” The McKinneys see

k a recovery

of $2,191.33 for the cost of completing the graveling of the driveway

all the way to the roa

d. Birdwell counter s that the c ontract is silent on

this issue. Furthermore, Birdwell emphasizes that since the road is 2/10 of a mile away , graveling up to the lane is all that could be “reaso nably contemplated.” The preponderance of the evidence indicates that the McKinney s failed to prove that the contract obligated Birdwell to grave l the drive

way all the wa

y to the road . Taken i n context, Birdwell admits in hi s testimony that he di d not gravel the entire amount sought by the McKin

ney s, but he does not admit breaching the contract. The trial court’s finding on this issue is affirmed. The McKinneys next arg

ue that the trial court erred by refusing

to award them damages for Birdwell’s failure to install two basement windows. The plans call for two “windows per g rade.” Windows could not be ins talled, b ecause they would be below the grade of the y ard. The Mc Ki nn eys contend that

Birdwell could have installed window wells, which could be below g rade. 1 The McKinneys asse

rt that the windows would not be below grade in the first place had Bird wel l notconstructed the basement ceiling shorter than

th e h ei gh t s pe ci fi ed in th e c on tr ac t. Al te rn at iv el y, the McKinneys ar

gue that they

should be credited for

the costs of labor

and mate rials necessary

for the installation of t

hese win dows so tha

t Birdwe ll does not

receiv e a windf

all. The tria l court he

ld that Bi rdwell di d not brea

ch this pr ovision of

the contr act, sinc e it did

no t prov ide for window wells. The evidence supports this finding of the trial c ourt. The plans specific ally

state “w indows per grade ” (emphasis added). Although it is undisputed that the basement ceiling height was shorter than that specified in the agreement, the evide nce suggests that the windows would still be below grade if the basement ceiling height had bee n in strictconform

ity with the con tract. T

he McKin

ney s’ alter

native a rgumen t has no me

rit. I t is inevita

ble that b oth2 Birdwe ll di d n ot ma ke a h ea rs ay o bjection to McKin ney ’s testimo ny a

bout what Lass iter told him.

3 Birdwe

ll also arg ues th at Las si te r’ s r ec ei pt is in ad mi ss ib le he ar sa y. T he Mc Ki nn eys correctly counter that Bir dwell is ba

rred fr om asser ting this defense

si nce he did not raise an objection at trial. See Pyle ex rel. Pyle v. Morrison , 716 S.W.2d 930, 936 (Tenn. App. 1986). 7 parties assume certain risks when a construction contract is executed. I n this case, th e M cK in ne ys assumed the risk that the windows might not be able to be constructed per g rade. The Mc Ki nn eys ne xt as se rt th at th e t ri al co ur t e rr ed by not f inding that Birdwell breached the agreement by

notapplying a

third coat of paint to all rooms in the house. The trial court held that the McKinneys we

re only able to pr

ove that a third coat was not applied in two rooms. Therefore, the trial court awarded

the McKinneys da

mages of $107.01 for the

cost of pa inting these two r

ooms. The McKinney s argue

that Bir dwell tes tified tha

t, although he thought that three coats had been applied throughout the house (except for two rooms), the painting sub-contractor, Tim L assiter (“Lassiter”), wo ul d h av e s up er io r k no wl ed ge . A lt ho ug h La ss it er di d n ot te st if y, the Mc Ki nn eys proffered a receipt from La ssiter stating as follows: “Lass iter Paint ing pain ted McKin

ney House on Porter Road: Two coats of p aint on wa lls and ceiling, three coats of paint on trim.” Br adley McKinney

testified that

Lassiter told him that Birdwell did not ask him to bid for three coa ts of paint in the house. 2 The McKinney s seek an award of $3,850.00 based on their expert’s estimate of the cost of a dding a third coa t to the entire house or, alternatively , an award of $1,000.00 based on an estimate made by L

assiter. Birdwell responds by emphasi zing that Bi rd well testified that he believed that three coats had been painted in every

room but two. Birdwell also testified that the McKinney s consent e d to the amount of work that was performed. 3 We are una

ble to hold

that the e

vidence prepond erates agains tthe trial court’s holding concerning this factual finding. This is an issue that involves the credibility of witnesses. The trial judge is in a much

better p osition to a ssess the credib ili ty of witnesses and, thus, its findings a re entitled to “consi derable

deference.” Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989). Therefore, the trial court’s awarding of $107.01 for the two unpa inted rooms is affirmed. The McKinneys next contend t hat the tr ia l court erred by

failing to credit them for having paid Birdwell twice for

bathroom fixtures. In the “allowance” provision of the contract, the parties8

listed “Cabine ts w/ co ri an to ps ” w it h a co st no t e xp ec te d t o e xc ee d $ 97 46 .0 0. Th e M cK in ne ys tendered Birdwell $9864.00 as reimbursement for this allowance. The McKinney s then discovered that this expense was used to pay for the installation of kitchen cabinets as well as a jacuzzi tub, a marble shower, a

nd bathro om vanitie s. The McKinney s dispute

the trial court’s finding that the allowance for “cabinets w/ corian tops” includesthe tub, shower, a nd vanitie s. Accor

ding to th e McKinney s, th ey eff

ectively we

re forced to pay Birdwell twice f

or these fixtures: a s part of

the basic contract price and as part of an

a ll owance item. The McKinneys a llege that they

should be credited $4,200.00, which is the subcontractor’s est

imation of

the value of the tub , shower , and van ities. The evidence indicates that the trial court err ed by n ot crediting the

McKinne

ys f or this expense. A plain reading of the term, “cabinets w/ c orian tops,” would not include the tub, shower, and bathroom vanities. These fixtures are called for in the specific ations and are part of the ba sic contract price. Therefore , the McKinneys should be a warded $4,200.00 for this expense. The McKin neys also claim that t he tri al cou rt erre d by not aw ardin g t hem expenses associated

with installing shelving. “Shelving” is listed as an allowance item at a cost not to exceed $400.00. The McKinney s argue th at “installation” is not listed as part of the shelving allowance. Becau se other

allowance items include “installation,” the McKinney s contend that the installation of the shelving is not an allowance and, thus, is part of the contra ct price. T he McKin

ney s also maintain that the other allowance items that did not state “installation” were perfor med by B irdwell

as part of th

e contra ct price . The McK

inney s seek a r

ecover y of $211.85 f

or the co st

of installing these she lves. A review of the evidence indicates that the trial court err ed by not including this installation cost as part of the contract price. From the terms of the contract, the installation of the shelves was distinct from the allowance for the shelves themselves. Therefore, the McKinney s are entitled to a credit of $211.85. The McKin neys nex t all ege that the trial court erred by refusing to award them for numerous construction defects that Birdwell acknowledg ed at trial. Such defects include doors not fastening pro pe rl y, lack

of weatherstripping, dents on doors, a handra il pulled away fr

om the wall, and the failure to install a

n oval win dow in the

front of the house . Birdwe

ll testifie d that the se defe cts could be repaired at a cost of between $1,000.00 to $1,500.00. B irdwell’s expert estimated th e cost of4 This was done in bre ach of th e contra ct. 9 repair at $2,000.00. At a minimum, the McKinney s seek compe nsation of $2000.00 f

or these defect s. The trial cou

rt refus ed to comp ensate t he McKin

ney s for the se repa

irs on th e g rounds that either they were

notBirdwell’s responsibility or tha t “Birdwell’s final completion of minor repairs and adjustments were delayed a nd frustrated by

McKinney.” The evidence preponderates in fa vor of this finding. The parties dispute whether some of these defects existed when Birdwe ll left. The parties also disputewhether Birdwell was given the oppor tunity to cure the def

ects after the Mc Ki nn eys moved into

the house early 4 and changed the locks on the house. Such ques tions rela te to credibility and

we defer to the trialjudge’s credibility determination. Tenn-Tex, 778 S.W.2d at 425-26. Furthermore, the evidence indicates tha t the McKinneys ora

lly consented to repla

cing the oval window with a vent, so that the gable on the roof would not become ove rheated. The McKin neys argue t hat th ey incurre d a wat er bil l amou ntin g t o $524.75 resulting from the ruptu re of the water li ne by

one of B irdwell’ s sub-con tractor s. The evidence s upports the trial court’s finding that the McKinney s fai le d to prove that Birdwell or his sub-contractors were responsible for the rupture. The trial court is affirme d on this issue. The McKinneys see

k recovery

of $350.00 for the repair of alleg ed defe cts rela ted to electrical items caused by B irdwell’s alleged fa ilu re to conform to the plans and make proper installation. The evidence does not preponderate a gainst the trial court’s findingthat Birdwell is not responsi ble for these alleged defects. Testimony offere d by Birdwe ll disputes whether the plans calledfor the in stallatio n of cer ta in of these items. Furthermore, the trial court found that the McKinne ys h ad delay

ed and fr ustrated Birdwell’s eff

orts to cu re all the minor def

ects. In addition, the M cKinne ys c laim that th e trial c ourt err

ed by not awar

ding the m a contractor’s profit fo

r the re pair cos ts of bre aches of the contr

act cau sed by Birdw ell. The McKinne ys’ expert calculated this as twenty percent above the ordinary cost. T he McK in ne ys contemplate a general contra ctor supervising the sub-contractors for additional repa irs. In light

of the fact tha

t only a few re pairs ne ed to be made as a re sult of bre aches c ommitted by Birdwell, it would be unnecessary

to hire a contractor to oversee sub-contra ctors. Thus, it would be5 Both p artie s chal lenge t his fi ndin g.
6 From Birdwell’s brief, it is somewha t difficult to ascertain which specific findings of the trial court that Birdwell contests. 10 unreaso nable

to award the McKinney s recovery for a contractor’s profit. The trial court’s dec ision on this issue is affirmed. Fi na ll y, the Mc Ki nn eys challen ge the t rial cou rt’s ref usal to aw ard them

attorne ys’ fees. 5 The

co ntrac tprovides that if either party breaches the contract, the brea ching party

is responsible for attorne ys’ fees. Since both pa

rties bre ached th

e contra ct, neither is enti

tled to att orney s’ fees

. On appeal , Birdwe ll challen ges ce rtain fin dings ma

de by the trial court tha

t Birdwe ll breached the agr eement. 6 Birdwell alleges that the trial court er red by finding

that Birdwell breached the contract by not a

pplying insulation betwee n the first and second floors of the home . The trial court awarded the McKinney s $3,000.00 for this expense. Alth ough Birdwell admits tha t the plan s called

for the in sulation, he appe ars to claim that an oral modifica

tion occu rred, si nce it

is not customary to install insulation between those floors and because th e M cK in ne ys did not voice their objection to Birdwell’s failure to install it. The evidence supports the trial court’s finding that Birdwell breached the c ontract by not installing the insulation. The trial court’s decision on this issue is affirmed. Birdwell also appears to contend that thetrial court erred in awarding da mages of $5,050.00 for repair work on a

screened-in deck. Th

e trial c ourt foun d that Bir dwell inst alled woo den posts for the deck instead

of steel posts as provided for in the contract. The trial court also found that Birdwell suffered damag es as a result of a defective roof on the deck. Alth ough Birdwell admits that the contract calls for steel posts, he argues that

the wooden po sts are cus tomary

and McKi nney

did not object to their

installat ion. Bird well also allege s tha t McKinney

did not timely provide notice of the def ective roof. In addition, Birdwell claims that repair work per formed o n the roof

is excessiv e and not p

rovided f or in the c ontract . The evidence preponderates in favor of the trial cou

rt’s find ing that Birdwell is responsi

ble for these damages. The dec ision of the trial court is affirmed on this issue. Birdwell disputes the trial court’s finding that he breached the c ontract by constructing the basement ceiling lower th an the height specified in the contract. I t is undisputed that the contract prov ide s that the basement ceiling is to measure 8'10" . Birdwell acknowledged that the a ctual11

baseme ntheight was five inches shorter on one end a nd eight inches shorter on the ot her end

. Birdwell claims that, before the cement was poured to make the floor, he marke d a line on the wall

a nd asked Bradley

McKinney if the he

ight was suitable. Birdwell testified that McKinney sai d “yes.” Birdwell maintainsfurther that the Mc Kinn eys waived a ny objections to the heig

ht by not voicing their oppo sition earl ier. Birdwell noted in hi s testimo ny that Br adley McKi nney stopped construction to voice h

is objecti on on nume

rous occ asions thr

oughout the const ruction p rocess. Thus, Birdwell conten ds that, ha d McKinne

y ob jected, he would

have stopped c onstruct

ion at this time. Birdwell also mai ntains tha t once the ceiling is boxed in, it will be able to satisfy the building inspector’s requirement of 7'6". Br adley McKinney denie d having the conversation with Birdwell in which he purpor tedl y acceded to themodifica

tion of the

height o f the bas ement. Th e McKinney s also insis t that timel y objections were made to both Birdwell and the architect, Steve Sloan. The McKinney s offered proof by their expert

that the c eiling c ould not be complete d at a

height of 7'6", as requir

ed by the building inspector. The trial court ruled that

Birdwell breached

the contr act by not constr

ucting t he basem ent in accordance

with the a

greem ent. It f ou nd th at Bi rd we ll di d n ot pr ov e t ha t t he Mc Ki nn eys had orally modified the contract. Th e trial cour t awarded the McKinney s $18,350.00, the value of repair as determined by

the McKin

ney s’ expert. The preponderance of the evidence does not indicate that Birdwell satisfied his burden of proving that the McKinneys ora lly modified this provision. Again, the trial judg e is the best arbiter of issues concerning credibility

. Tenn-Tex, 778 S.W.2d at 425-26. The decision of the trial court on this issue is affirmed. Birdwell also cont

ends that the t rial court improperly awarded damages base d on cost of repair instead o f on diminu

tion in valu e. Bird

well cite s Thomas v. Mardis, Greene Chancery C.A. No. 106, 1987 WL 20189 (Tenn. App. Nov. 25, 1987), for the proposition that if construction of a house ha s b ee n “ su bs ta nt ia ll y performed” and repair wo uld result in “unreasonable destruction,” then diminution in value is the proper approach.7 McKinney is 6'5".

8 Birdwell’s brief alleges that , alth ough Bradle y Mc Kinney

is a tall ma

n, “he is n ot Krim Abdul Jabba

r [sic],” a nd, thus, th

e discre pancy in heigh t should not

bother him. 12 The Thomas case cited Edenfiel d v. Woodlawn Manor, Inc., 62 Tenn. App. 280, 462 S.W.2d 237 (1970). The Edenfield court, quoting from Am. Jur. (2nd), stated: As a general rule, the measur e of damages is the cost of correcting the defects or completing the omissions, rather than the d

iffere nce in va lue between what ought to have been done in the performance of the contract and what has been done, wher e the correctionor comple

tion would n ot involve

unreaso nable

destruction of the work done by the contractor

and the cost ther

eof woul d not be g

rossly dispropor

tionate to the results to be obtained. On the other hand, the courts genera lly adhere to the vie

w that if a builde

r or cont ractor has not fully p erformed the terms of the construction agree ment, but to repair the defects or omissions would require a substantial tearing down and rebu

ilding of the struc ture, the

measure of damag es is the d

iffere nce in value betweenthe work if it hadbeen performed in accordanc e with the contract and that which was actually

done, or (as it is sometimes said) the difference between the va l ue of the defective structure if properly completed. Despite this latter rule, however, there is some authority to the e ffect that damages for a

contractor’s breach of a contract

to constr uct a dwelling , where

it is not con structed

in accor dance w ith the plans and specifications , are the amoun t required to reco nstruct it to make it conform to such plans and specifications, rather than the differe nce in loan or market value on the finished dwelling, since unlike a commercial structure, a dwelling has an esthetic

value and must be c onstruct ed as the owner wa

nts it, eve n th oug h the finished dwelling may

be just as good. Id. , 62 Tenn. App. at 287-88, 462 S.W.2d at 241 (quoting Am. Jur. 2d § 79) (emphasis in original). Eden field then adopted a rule in which a distinction is made between the standard applied fo r commercial buildings and the standard for residential dwellings. Id. , 62 Tenn. App. at 289, 4 62 S.W.2d at 241 (citi ng Fox v. Webb ,105 So.2d 75 (Ala. 1958)). The court noted that, “in addition to aesthet ic tastesof the ow ner . . . th ere is also the matter of

the owner’s comfort and convenience.” Id. , 62 Tenn. App. at 289, 462 S.W.2d at 242. Therefore, the court held that the

cost of repair is the appropriate measure of damag es for a residential dwelling. Id. Applying this standa

rd to the c ase at ba

r, we find that the

court did

not err in

a warding damages based on

the cost o f repai

r. In light of Bradle y Mc Kinney ’s height, 7 it is under standabl e that a few inches in ceiling height would be of importance. 8 Furth ermor e, the coupl e help ed des ign the room in or

der to ac commodat

e their a esthetic tastes. It is c lear tha

t they would be d

etriment ally affected once the ceilin g is boxed in to accommodate the plumbing and once light fixtures are installed. On appeal, Birdw ell also claims that it was inappropriate for the trial court to rely on the damages testimony of the McKinney s’ expert, John Ram sey (“Ramse y”). B irdwell asserts that13

Ramsey ’s estima

tes are based on homes buil

tin Brentwood, Tennessee, and the Belle Meade area of Nashville. According to Birdwell, these costs ar e much h igher tha n the cost of constr uction in Ro be rt so n C ou nt y. Birdwell failed to

raise a n objecti on conce

rning th is testimon

y a t trial. Theref

ore, Bi rdwell is barred from asserting this defense on a ppeal. Pyle , 716 S.W.2d at 936. Birdwell also challenges the trial court’s failure

to award him $5,000. 00 for “a

dditional t

ime spend [sic] a

nd d elays in the per

formance of the Contract caused by McKinney’s a

ctions.” The prepond erance of the evidence s upports th e trial c ourt’s re

fusal to a ward the se damag es. In addition, Birdwe

ll seeks the recovery

of prejudgment interest. Prejudgment interest was not sought in the Com

plaint. Th

e evidence does not demonst rate that Birdwell is entitle d to these damages. The trial court is affirmed on this issue. In sum, the trial co urt’s comput ation of d amage s of $10,4 20.10 in fa vor of B irdwell is modified t

o refle ct the fo llowing a

wards credited

to the McK

inney s: Stairs material and labor $1,214.11 Shower stall opening 900.00 Bathroom fixtures 4,200.00 Shelving installation 211.85

Total $6,525.96 In all other respects, thedecision of the trial court is affirmed. Therefore, the trial court’s awa rd of $10,420.10 to Birdwell is modified to $3,894.14. The decision of

the trial court is a ffirmed as modifie d. Costs on a

ppeal ar e taxed eq ually to Ap pe ll an t a nd Ap pe ll ee , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

HOLLY KIRBY LILLARD, J.

CONCUR:

DAVID R. FARMER, J.

SAMUEL L. LEWIS, J.