# FILED September 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

CHARLES SHEP HERD, ) C/A NO. 03A01-9701-CH-00015 ) Ap pellan t, ) BLOUNT CHANCERY ) v. ) HON. CHESTER S. RAINWATER, ) CH ANCELL OR PERKINS BUILDE RS, ) ) AF FI RMED AND Appellee. ) REMANDED

KE VIN W. S HE PH ER D, M aryville, for A ppella nt. ROB ERT N . GODD ARD , GODD ARD & GA MB LE, Maryvil le, for Appelle e.

O P I N I O N
Franks. J.
Shepherd’s a ction f

or breach of c onstruc tion cont ract a gainst

Perkins Bu ilder s (P erk ins) w as d ism issed at the con clus ion of tr ial by th e C han cello r. Shepherd has appea led.

She pher d’s issu es on appe al are w hethe r the T rial Jud ge erre d in dismis sing Shepher d’s cl aim on the gr ounds that Shepherd “fai led to s how a material breach o f contract” an d wh ether the Trial C ourt “incorrectly” limited She pherd’s “proof at tri al”. On June 30, 1993, t

he parti es entered an agreement for the c onstruc tion of a dwelli ng house, and Per kins undertook const

ructi on. On December 1, 1993, Sh eph erd term inate d th e co ntra ct by le tter f or “ failu re to com ply w ith ag reem ent”
.2

Perkins di d no further

work on the proj ect, and Shepherd cont racte d with anothe r builder on December 6, to compl ete the structure. Shepherd als o brought an ac tion against the othe r buil der for s hoddy workmanshi p in connection with t he constr uction of th e ho use . The Ch ance llor, in his ru ling, co nclud ed tha t the pla intiff “f ailed to show by a pre ponderance of t he evidence” that t

here was a material breach of the contrac t; t

hat pla inti ff had condoned the “ acti ons” of Perki ns in the beginni ng, and noted tha t the s ubsequent cont ract to complete t

he house was “in ac cordance with the origi nal contract doc uments” and that if the work was not done i n accordance t o the
con tract “the n th at’s a ma tter b etw een . . . [Sh eph erd ] an d hi s su bse que nt co ntra ctor .” Additional ly , the Chancellor found that

the damages cl aimed were specul ative and indefi nite. Shepherd argues “that the most s ignifi cant bre ach of the cont ract was the fai lure of t

he contra ctor t o complete t he house in a t

imelymanner”, and i nsist s that the part ies i ntended that the construction of the house would be c ompleted byOctober 15, 1993. Ess entia lly , Shepherd ar gues that time was of the essence for the completi on of the house. In thi s connecti on, the Chancellor observed: The parti es, i n good faith, got t ogether a nd atte mpted to work out a n arrangement

and agreement f

or the ac quisi tion, some land and the cons truction of a re siden ce ho me. T o say the le ast, the p aperw ork in co nn ec tio n w ith th is t ra ns ac tio n i s in ar tfu lly d ra w n. L ac ki ng in m an y, many res pects and reall y i s at t he base of this probl em that t hese parties are havi ng. The agreement r eferred to is a boi ler- plate form inte nded as a “cont ract f or the s ale of real e stat e” with addendums. The agreement pr ovides t hat the parti es would “clos e” no late r that

October 15, 1993. ” Possessi on was to be on the da te of cl osing which was also condi tionalunder the terms of the c ontract . Shepherd testi fied that construction di d not st art until September 22, and cons truction conti nued intermitt ently

untilShepherd terminated t he contra ct, when the house was3

app rox ima tely on e-th ird c om plete d.

In de termin ing w hethe r time is o f the e ssenc e, the en tire agre eme nt is
con side red , tog ethe r w ith th e circ um stan ces of th e pa rties a nd t he s ubj ect m atter . Comm erce Str

eet Co. V. Goodyear Tire & Rubber Co. , 31 Tenn. App. 314, 215 S.W.2d 4 (1949). Generall y, time i s not of the essence of a buildi ng and constr

uction contrac t. 17 ACJS Contract s, §504( 2). The evi dence est ablis hes that Shepherd was aware that

the const

ructi on would not be completed long befor e the October 15 deadli ne, but

allowed Perki ns to continue working af ter t hat dat e, and encour aged Perkins to complete t

he job. Under the te rms of the wri tten a greement and t he acti ons of the parties in relation thereto , we c onclu de tha t time w as no t of the essen ce in th is contrac t, a nd that f

ailure to complete by t

he October 15 dat e was not a material breach. Also, we agree wit h the Chancell or’s conc lusi ons that the evi dence does not es tablish a suff icient b asis to a wa rd da mag es fo r defe ctive c onstru ction, an d as to any evi dence of defect s, i t is conjectural as to the responsibi lit y for this as between the contractors. Finall y, Shepherd argues that t he Court imprope rlyrestricted the testi mony of his witness, Charlie Jones, a home inspector, and asserts:

The Court felt

that t he testimony i n regards to an ins pecti on, approximat ely two (2) y ears after Perki ns Builder s were disc harged from the cont

ract, was far too r emoved from the brea ch in question to be releva nt. He i nstruc ted counselto confi ne the l ine of quest ions t o the parti cular i ssue, that be ing materials furnis hed to the benefit of the defe ndan t. Shepherd concedes that he did not make an off er of the testimony, but asse rts what was excluded was “obvi ous from the context of the record” , i. e., “the evi dence sought to prove bot

h the fact

that t he contra ct was not compl eted i n a timel y manner by the contrac tors, and that

secondly , the work performed was of infe rior qualit y and
wo rkm ans hip .”4 The Tenn essee Rules of Evidence, Rule 103(a)(2) provides: Effect of Erroneous Ruling. Error may not be predi cated upon a ruling which admits or

excludes e vidence, unless a substant ial right of t

he parties is affected a nd . . . (2) O ffer of P roo f. In case t he ruli ng is one exclu ding evide nce, th e sub stance of the evide nce a nd th e spe cific evidentiary basis supp orting adm ission were made know n to the C ourt by offe r or w ere ap paren t from the co ntext. Ref using to adm it any evid ence as to w hethe r the co ntract w as co mp leted in a time ly manner consti tutes harmless error , in vi ew of our finding on t hat is sue, and as to the issue o f w hethe r the w ork w as pe rform ed pr oper ly, such ev idenc e w ould be fa ctspecifi c and the fami liar rule r equiri ng no cita tion i s appli cable, that where an appe llant fails to mak e an o ffer o f pro of w e w ill not rev erse a T rial Jud ge on that evident iaryissue.

The judgment of the Trial Court is affirmed and t he cause re manded with the c osts of appeal ass essed t o Charles Shepher d.

________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. M cMu

rra y , J.

___________________________ Charles D. Susano, Jr., J.