IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 10, 2015 Session

ANIL CONSTRUCTION INC. v. PATRICK D. MCCOLLUM, ET AL.

Appeal from the Chancery Court for Madison County

No. 67465 William B. Acree, Judge

________________________________

No. W2014-01979-COA-R3-CV – Filed July 15, 2015

_________________________________

This is the second appeal of a case involving the alleged breach of a construction 

contract. The plaintiff general contractor hired the defendant subcontractor to build and 

install cabinetry for a movie theater. The subcontract provided that the work should be 

completed by the date the theater was scheduled to open. However, at the theater‘s 

opening, several items remained unfinished. The general contractor refused to pay despite 

the subcontractor‘s demand for payment. The general contractor filed suit alleging breach 

of contract for failure to complete the project in a timely manner and for defective work. 

The subcontractor counterclaimed for breach of contract for failure to pay under the 

contract. After a bench trial, the trial court found in favor of the subcontractor and 

awarded damages. The general contractor now appeals. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.

GOLDIN, J., and KENNY ARMSTRONG, J., joined.

Adam M. Nahmias, Memphis, Tennessee, for the appellants, Anil Construction, Inc.

Jon A. York, Jackson, Tennessee, for the appellee, Patrick David McCollum.

OPINION
2

Background

This is the second appeal in this case involving an alleged breach of a construction 

contract. Accordingly, we take many of the facts from our prior Opinion, Anil 

Construction, Inc. v. Patrick D. McCollum, Individually and d/b/a Pat‘s Custom 

Cabinets, No. W2013-01447-COA-R3-CV, 2014 WL 3928726 (Tenn. Ct. App. Aug. 7, 

2014) (―Anil Construction I‖). 

Ambarish Keshani is in the business of owning and operating movie theaters. Id.

at *2. Mr. Keshani uses his own construction company, Plaintiff/Appellant Anil 

Construction, Inc. (―Anil Construction‖) to build the movie theaters. Id. Anil 

Construction operates as a general contractor and enters into contracts with 

subcontractors to complete various aspects of his theaters. See id.

As stated in Anil Construction I, 

Mr. Keshani, through Anil Construction, began construction 

on a new movie theater in Jackson, Tennessee, the Cinema 

Planet 10 (―Cinema 10‖). On April 13, 2010, Anil 

Construction executed a contract with subcontractor 

Defendant/Appellee Patrick McCollum, d/b/a Pat‘s Custom 

Cabinets (―Mr. McCollum‖), for Mr. McCollum to build all 

of the cabinetry for the Cinema 10. The contract detailed the 

seven specific areas in Cinema 10 where Mr. McCollum was 

to install cabinets. In return, the parties agreed, Anil 

Construction would pay Mr. McCollum a total contract price 

of $44,650—half ($22,325) upon execution of the contract, 

and the other half 15 days after completion of the cabinet 

project. The contract describes the cabinet work as a ―turnkey‖ job, that is, both parties anticipated that the 

subcontractor would complete the entire project. The contract 

also stated that the job needed to be completed by the 

scheduled opening of the theater in June 2010, and that time 

was of the essence:

Opening of [the] movie theatre in June, 2010 

(Tentative date being June 11 but could move 

one or two weeks) is critical to Anil 

Construction Inc[.] and Pat‘s Cabinet 

understands that clearly and agrees to 

accommodate Anil Construction as needed.... 

Time is of an essence.
3

Construction of the movie theater did not go as planned. Id. Cinema 10 did not 

open in June 2010 as stated in the parties‘ contract. Id. The opening was delayed until 

October 1, 2010, for reasons that the parties dispute. Additionally, the cabinetry was not 

completed, even at the delayed October 1, 2010, opening of Cinema 10. Regarding this 

delay,

[t]he record contains various email communications between 

the parties regarding the delay. In many of them, Mr. Keshani 

is urging Mr. McCollum to complete the job; in others, Mr. 

McCollum is pressing Mr. Keshani to pay him the balance 

owed on the contract. Mr. Keshani asserted that the delays in 

completion were caused by Mr. McCollum. Mr. McCollum in 

turn maintained that the delays were caused by factors outside 

of his control. Mr. McCollum would later testify at trial that 

the cabinetry work was installed and in use by October 12, 

2010.

In November 2010, Mr. Keshani sent emails to Mr. 

McCollum accusing him of taking items from the Cinema 10 

that he was not authorized to take. 

Id. at *2–*3. In Mr. Keshani‘s email of November 16, 2010, he included a list of fifteen 

allegedly defective items (―Items 1 through 15‖) that he asked Mr. McCollum to correct 

or complete. As provided in Mr. Keshani‘s email to Mr. McCollum, Items 1 through 15 

include:

(1) Bar back wall shacks [sic] when swing door is used. Still 

does.

(2) Formica in concession/bar area coming loose at spots.

(3) Bar top flips still not corrected properly to sit on top of the 

bar counter and now hinges are bent.

(4) Bar Top flips are not square with bar. Still are not.

(5) Glass shelf does not support the weight of the liquor 

bottles. Still exist. You are saying to put wood on each side of 

shelf, while your man Jimmy told me, when has was at 

Cinema that, it would not help. He thought the solution was to 

put support in the middle of each shelf. Which one of you is 

correct? We just want it to be able to hold the liquor bottles, 

at the same look good and be practical in use without 

hindrance.
4

(6) Liquor Cabinet is not level/plum this is evident when 

looking at the mirror on the right side of the cabinet. This 

may be because the back bar top is sagging on the left. Still 

exist. 

(7) White piece of wood is exposed below Formica – close to 

the center. Still exist.

(8) Foot rail in front of the bar sits off the floor in couple 

places. [S]till exist.

(9) Formica – many places have damaged edges due to filing 

– poor work. Still exist.

(10) Waves are evident in the front of concession Formica 

and poor joints. Jimmy put putty in joints but does not match 

with color and in time it will disappear. [N]eeds proper 

solution.

(11) TV poles are mounted now, but the left one is not sitting 

level and tight on top of counter and sways. This is risky and 

creates liability.

(12) Still have issues with many cabinet locks.

(13) Trash can‘s [sic] enclosures sway door does not swing 

properly. Sticks due to clearance.

(14) Bar front does not have rope light groove at bottom. 

Your offering to hang rope light does not solve the issue. 

There should be groove at bottom, just like at top.

(15) Concession still dont [sic] have toe kick in front.

Mr. Keshani stated that he would not pay Mr. McCollum until these items were complete. 

Additionally, Mr. Keshani

forbade Mr. McCollum from going onto the theater property 

without arranging it in advance in writing with Mr. Keshani 

personally. Mr. Keshani told Mr. McCollum that he did not 

consider the job to be complete until all of the listed items 

were done, and he made it clear that he would not pay the 

balance of the contracted fee until all of them were resolved.

In an effort to address their disagreement, Mr. Keshani and 

Mr. McCollum had a face-to-face meeting on November 23, 

2010. It did not go well. Mr. Keshani emphasized the items 
5

that still needed to be resolved, and Mr. McCollum insisted 

on getting payment from Mr. Keshani. According to Mr. 

Keshani, the meeting culminated in Mr. McCollum 

threatening him with bodily harm.

After that, both sides threatened legal action. On December 1, 

2010, Mr. Keshani emailed Mr. McCollum that he would pay 

Mr. McCollum the contract balance ―[o]nce you complete all 

of the remaining items.‖ The email added: ―This is my final 

attempt before proceeding with legal action . . . .‖ Two days 

later, Mr. McCollum‘s attorney sent Mr. Keshani a letter 

demanding payment under the contract for work completed. If 

Mr. Keshani failed to respond by December 24, 2010, the 

letter said, Mr. McCollum would pursue legal action.

Id. at *2–*3.

Several months after the theater‘s delayed opening in October, on December 16, 

2010, Anil Construction filed suit in the Chancery Court of Madison County against Mr. 

McCollum, individually and d/b/a Pat‘s Custom Cabinets. Id. at *3. Anil Construction‘s 

complaint alleged that Mr. McCollum failed to complete the cabinets in a timely and 

workmanlike manner. Anil Construction sought damages ―in an amount to be proven at 

trial.‖ As stated in Anil Construction I:

Mr. McCollum responded by filing a counterclaim for the 

balance due under the contract. This prompted numerous 

affirmative defenses. Anil Construction‘s initial answer to the 

counterclaim asserted the affirmative defense of first-tobreach, claiming that Mr. McCollum was barred from 

recovery because he first breached the contract. Anil 

Construction later amended its answer to the counterclaim to 

include the affirmative defenses of set-off, recoupment, and 

duress. Discovery ensued.

Id. at *3.

On March 11, 2013, the trial court conducted a bench trial. The trial court heard 

testimony from several witnesses, including Mr. Keshani; George Bedocs, a construction 

expert; and Mr. McCollum. Mr. Keshani testified first:

He said that, in the beginning of the Cinema 10 project, he 

worked primarily with Mr. McCollum‘s employee, Jimmy 

Lloyd. Mr. Lloyd assured Mr. Keshani that the cabinets 

would be completed and ready to install by the end of July 

2010. This proved not to be true. The delay with the cabinets, 
6

Mr. Keshani said, kept other trades from completing their 

portions of the movie theater project, such as the electric 

work, the tiling, and the plumbing.

Mr. Keshani testified that, on August 20, 2010, he emailed 

Mr. McCollum to relay his concern about the continued 

delays. The email stressed that Mr. McCollum‘s tardiness in 

completing the cabinetry was ―causing serious delays in our 

opening.‖ In his response, Mr. McCollum asked for certain 

information from Mr. Keshani, but assured Mr. Keshani that 

he would continue to work on the cabinetry ―in full force until 

completed.‖ Shortly after that, on August 23, 2010, the parties 

signed a ―Memorandum of Understanding‖ that outlined 

minor changes to the contract and, consistent with Mr. 

McCollum‘s email, said that Mr. McCollum would ―put full 

force to complete the job.‖ At that time, Mr. Keshani 

testified, the Cinema 10 was ready for installation of the 

cabinets. Despite all of this, Mr. McCollum did not complete 

the cabinets.

On September 1, 2010, Mr. Keshani emailed Mr. McCollum 

to inform him that he planned to open the Cinema 10 on 

September 10 and to press him to complete the cabinets. The 

email said that, at that stage in construction, Mr. Keshani 

―had very large daily interest charges on daily basis, and I 

cannot afford delay.‖ A week later, on September 7, Mr. 

Keshani sent another email to Mr. McCollum listing the 

uncompleted items that were hindering the September 10 

theater opening. The missing or incomplete items included 

trash cans, a liquor cabinet, a bar counter top, doors for the 

bar, and a door for the concession stand. Mr. Keshani testified 

that he tried to call Mr. McCollum, to no avail. Mr. 

McCollum did not return his telephone calls and did not 

respond to his email listing the uncompleted items. The 

cabinetry work was not completed and the theater did not 

open on September 10.

Mr. Keshani testified that he went to Mr. McCollum‘s cabinet 

shop and saw an employee working on a different project. 

The employee told Mr. Keshani that Mr. McCollum had 

instructed him to work on the other customer‘s job. On 

another occasion, Mr. Keshani said, when Mr. McCollum had 

assured him that he was working on the Cinema 10 project, 
7

Mr. Keshani went to the cabinet shop to check[,] and Mr. 

McCollum turned Mr. Keshani away at the door.

Finally, despite the fact that the cabinetry was still not 

complete, Mr. Keshani opened the Cinema 10 on October 1, 

2010. In an October 6, 2010 email to Mr. McCollum, Mr. 

Keshani confirmed their telephone conversation in which Mr. 

Keshani agreed to pay $200 for a television mount and Mr. 

McCollum agreed to complete the installation of the cabinets 

by October 12, 2010. October 12 came and went, Mr. 

Keshani said, and the cabinet work was not completed.

Over the next few weeks, Mr. Keshani said, Mr. McCollum‘s 

employees worked at the Cinema 10 for brief periods, 

addressing the unresolved cabinet work. In the course of 

doing so, Mr. McCollum‘s employees took necessary items 

out of the movie theater, ostensibly to work on them. The 

items taken out of the theater included trash cans, steel poles, 

and glass doors. All the while, the Cinema 10 was in 

operation.

Mr. Keshani testified that he refused to pay Mr. McCollum 

the remainder of the contract price because he did not 

complete the job. On November 15, 2010, Mr. Keshani sent 

an email to Mr. McCollum listing 15 items that would have to 

be resolved before he would consider the job complete. This 

email was entered into evidence as Exhibit 21. Item number 

15 on the list said that the cabinetry on the concession stand 

did not have a toe kick on the customer side.1 Mr. Keshani 

acknowledged that the contract did not mention a toe kick, 

but insisted that toe kicks are standard in the industry for that 

type of cabinet and should have been included in the Cinema 

10‘s concession stand. He said that he had never seen a 

concession stand without a toe kick in the front and in the 

back as well. Referring to the list of uncompleted items in 

Exhibit 21, the trial judge asked Mr. Keshani, ―Is this 

basically a punch list or is this items that have not been done 

at all?‖ Mr. Keshani responded, ―[I]t includes both.‖

 

1 A ―toe kick,‖ also called a ―toe space,‖ is a four-to six-inch gap at the bottom of a cabinet, at the floor 

level. The toe kick allows a person to stand next to the cabinet without hitting their toes on the cabinet, by 

giving room for the person‘s toes to go into the space under the cabinet.
8

Mr. Keshani testified about his November 23, 2010 meeting 

with Mr. McCollum, in which they discussed the list of 15 

unresolved items. Mr. McCollum told him that, in order to put 

a toe kick in the Cinema 10 concession stand, he would have 

to remove the concession stand from the theater premises. At 

the conclusion of the meeting, Mr. Keshani perceived that 

Mr. McCollum took a picture of Mr. Keshani with his cell 

phone. When Mr. Keshani asked him what he was doing, Mr. 

McCollum replied, ―Well, you‘ll find out.... [M]aybe you‘ll 

never find out, you‘ll never be around to find out or 

something like that.‖ Mr. Keshani took that as a threat.

After the November 2010 meeting, Mr. Keshani said, neither 

Mr. McCollum nor his employees came back to the Cinema 

10 project. The next communication Mr. Keshani received 

was the December 2010 letter from Mr. McCollum‘s attorney 

demanding payment.

Id. at *3–*5.

After Mr. Keshani‘s testimony, he called construction expert George 

Bedocs to testify.2 Mr. Bedocs testified that he had viewed Mr. McCollum‘s cabinetry 

work at Cinema 10. Id. at *5. He generally corroborated Mr. Keshani‘s testimony that all 

of the 15 items on the Exhibit 21 list needed to be completed. Mr. Bedocs estimated that 

it would cost approximately $17,050.00 to complete or repair these items. He did not, 

however, break out the cost of adding a toe kick to the front part of the concession stand, 

but he stated that the cost of this repair comprised most of the total $17,050.00 amount.

Id. at *5–*6. He further opined that Mr. McCollum‘s work at Cinema 10 did not conform 

to industry standards in the community. Id. at *6.

Thereafter,

Mr. McCollum testified on his own behalf. He conceded that 

time was of the essence on the cabinetry work for the Cinema 

10, as stated in the parties‘ contract. He claimed, however, 

that completion of the cabinetry for the movie theater was

delayed by some of Mr. Keshani‘s changes, and he said that 

he did not always have all of the necessary information from 

Mr. Keshani. Mr. McCollum also said generally that the work 

of some of the other trades in the Cinema 10 delayed 

completion of the cabinets; he did not specify dates or 

estimate the amount of delay caused by others. 

 

2 Mr. Bedocs was tendered as an expert in construction, but not cabinetry.
9

Mr. McCollum said that, once Mr. Keshani decided that he 

only wanted to interface with Mr. McCollum by email, it 

became difficult for them to communicate because Mr. 

McCollum was rarely at his computer. When he did speak to 

Mr. Keshani, Mr. McCollum testified, he assured Mr. 

Keshani that he was willing to resolve the 15 items on Mr. 

Keshani‘s list. Initially, Mr. McCollum said that Mr. Keshani 

would not let him on the Cinema 10 property to complete the 

15 unresolved items. Later in his testimony, Mr. McCollum 

clarified that Mr. Keshani allowed him on the theater property 

during the project, but after the November 23, 2010 meeting, 

Mr. McCollum‘s attorney advised him not to go back to the 

project site. Mr. McCollum denied Mr. Keshani‘s claim that 

he threatened Mr. Keshani at the November 23, 2010 

meeting, and added that Mr. Keshani was paranoid.

Mr. McCollum maintained that toe kicks are not standard for 

all types of cabinetry. However, he acknowledged in his 

testimony that he was obligated to resolve the 15 items listed 

in Mr. Keshani‘s email and had agreed to do so. He also 

conceded that, by the time of his November 23, 2010 meeting 

with Mr. Keshani, the 14 other items on the list were not 

completed. After discussing what he would need to do to fix 

or complete the other items listed in Mr. Keshani‘s email, Mr. 

McCollum said that it would cost him ―around $1200‖ in 

labor to resolve those items.

Id. at *6.

At the conclusion of the trial, the trial court orally ruled in favor of Mr. 

McCollum, finding

that the Cinema 10 movie theater did not open until October 

1, 2010, and that the delay in opening was ―caused by a . . . 

number of reasons. [The delays] were caused by the plans 

being incomplete, by the weather, according to the Plaintiff, 

by actions or inactions of other subcontractors, and to some 

degree by the Plaintiffs.‖ It found that Mr. McCollum‘s fault 

in the delays ―was minimal in the Court‘s opinion, thus, the 

Court finds that the Defendant did not breach the contract by 

failing to timely fulfill his obligations under the contract.‖ 

The trial court held that Mr. McCollum ―has substantially 

complied with the contract and has not breached the 

contract.‖
10

The trial court also noted that the 15 items set forth in Exhibit 

21 ―have not been repaired for the most part.‖ Referring to 

items 1 through 14 on Exhibit 21, the trial court found, ―the 

problems can be repaired or fixed in a short time frame and at 

a relatively small cost.‖ It found specifically that, as of the 

time of trial, the repairs had not been made to these items 

―because of disagreement between the parties.‖ As to the last 

item on the list, the toe kick, the trial court held that Mr. 

McCollum ―did not breach the contract by failure to install 

the toe kick as he was not required to do so under the 

contract.‖

The trial court then awarded damages to Mr. McCollum. It 

observed that Mr. Keshani had ―not presented a precise 

amount for repair or correction of Items 1 through 14,‖ and 

that Mr. McCollum‘s estimate for the repair of those 14 items 

was $1,200. Based on this, the trial court awarded Mr. 

McCollum damages in the amount he requested, $24,463 less 

the $1,200 he estimated it would cost him to resolve items 1 

through 14, for a total award of $23,263. The trial court also 

awarded prejudgment interest to Mr. McCollum at a rate of 

10% from December 24, 2010, the deadline Mr. McCollum 

had established for payment in his December 2010 demand 

letter to Mr. Keshani.

Id. at *6–*7. The trial court entered its written order on May 22, 2013. The written order 

did not incorporate the earlier oral ruling by reference, nor did it recount any of the trial 

court‘s oral findings. The May 22, 2013, written order only provides the following:

The Court finds that McCollum performed the 

contract in accordance with the agreement of 

the parties and did not breach the contract. The 

Court finds that Anil [Construction] breached 

the contract by failing to pay the balance of the 

contract price owed to McCollum in the amount 

of $23,263.00.

The trial court ordered Anil Construction to pay Mr. 

McCollum damages in the amount of $23,263, plus 

prejudgment interest ―from and after the date of December 

24, 2010....‖ . . . . 

Id. at *6.
11

On June 19, 2013, Anil Construction appealed the trial court‘s final judgment to 

this Court. This Court issued an order on October 1, 2013, stating that the trial court‘s 

May 22, 2013, was not a final appealable order because it did not dispose of Mr. 

McCollum‘s counterclaim, his request for attorney fees, or his motion for an award of 

discretionary costs. Consequently, on October 7, 2013, the trial court entered a 

Supplemental Final Judgment rejecting Mr. McCollum‘s counterclaim for attorney fees 

and expenses. Upon entry of the Supplemental Final Judgment, this Court proceeded to 

review the merits of the appeal in Anil Construction I. 

However, this Court concluded that the trial court‘s findings of fact and 

conclusions of law were insufficient. Specifically, we instructed the trial court ―to issue 

detailed findings of fact and conclusions of law to both the complaint and the countercomplaint, and to address each party‘s affirmative defenses.‖ Id. at *12.

Pursuant to this directive, the trial court entered an Amended Judgment on August

26, 2014. In the Amended Judgment, the trial court found that the subcontract stated that 

―it was a  ̳turn key‘ job, but [the subcontract] did not define that term.‖ The trial court 

then provided a dictionary definition for the term ―turn key,‖ and determined that Anil 

had breached the contract by refusing to pay McCollum. The Amended Judgment 

provides: 

Shortly after the theater opened, Anil raised several items to 

McCollum that it contended needed to be repaired or 

completed. Over the next two months, McCollum performed 

additional services in an effort to address Anil‘s complaints; 

however, Anil persisted in its claims that the contracted work 

was incomplete and not performed in a workman-like 

manner. Ultimately, McCollum‘s counsel sent Anil a letter 

dated December 3, 2010 demanding that the remaining 

balance due under the contract be paid no later than 

December 24, 2010.

The trial court determined that, although construction was undisputedly delayed, the 

delay was not solely the fault of Mr. McCollum. Instead, the trial court found that 

unfavorable weather, the delays of other subcontractors, and Mr. Keshani‘s many 

requests caused much of the delay. Thus, the trial court found that Mr. McCollum did not 

breach the contract by failing to timely complete his obligations.

The trial court next addressed Anil Construction‘s claim that Mr. McCollum‘s 

work was defective or otherwise unworkman-like. Although Anil Construction contended 

that Items 1 through 14 required repairs by Mr. McCollum, and Mr. McCollum agreed, 

the trial court found that Mr. McCollum substantially complied with the contract and that 

he did not have an opportunity to fix these items because he was refused access to the 

premises. Further, regarding Item 15, the toe kick, the trial court found that Mr. 

McCollum did not breach the contract by failing to install the toe kick in the front side of 
12

the concession stand because the contract did not require him to do so. The trial court 

noted that the parties also entered into a modification of their original contract, which 

changed the scope of Mr. McCollum‘s work. The modifications resulted in an increased 

remaining balance of $24,496.33 (half of original contract price of $22,325.00 plus 

$2,171.33 for additional work) that Anil Construction agreed to pay Mr. McCollum.

Despite the modification to the subcontract, the trial court found that Mr. McCollum had 

substantially completed his contractual obligations. However, because Mr. McCollum 

estimated $1,200.00 to complete or repair Items 1 through 14, the trial court found that 

the judgment in favor of Mr. McCollum should be set off in the amount of $1,200.00.

On September 25, 2014, Anil Construction appealed the trial court‘s Amended 

Judgment.

3

Issues

Anil Construction raises two issues on appeal, which are taken from its brief:

[1.] Whether the Trial Court erred by failing to issue detailed 

findings of fact and conclusions of law as to all claims, 

counterclaims and affirmative defenses in the Amended 

Judgment as rendered subsequent to remand.

[2.] Whether the preponderance of the evidence supports the 

conclusions set forth in the Amended Judgment.

Standard of Review

The trial court heard this case sitting without a jury. Accordingly, we review the 

trial court‘s findings of fact de novo with a presumption of correctness, unless the 

evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of 

correctness, however, attaches to the trial court‘s conclusions of law and our review is de 

novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 

S.W.3d 913, 916 (Tenn. 2000)).

Additionally, the trial court‘s findings on credibility, whether express or implicit, 

are entitled to great deference on appeal. See Taylor v. McKinnie, No. W2007–01468–

COA–R3–JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug. 5, 2008). Where the trial 

court‘s factual determinations are based on its assessment of witness credibility, this 

Court will not reevaluate that assessment absent clear and convincing evidence to the 

contrary. Franklin Cnty. Bd. of Educ. v. Crabtree, 337 S.W.3d 808, 811 (Tenn. Ct. App. 

2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)).

 

3 This Court entered an Order consolidating the record from Anil Construction I with the record from the instant 

appeal on November 24, 2014.
13

Discussion

Rule 52.01 Findings of Fact and Conclusions of Law

We begin with Anil Construction‘s argument that the trial court erred by failing to 

comply with this Court‘s directive in Anil Construction I to make sufficient findings of 

fact and conclusions of law. Specifically, we instructed the trial court to make findings of 

facts and conclusions of law as to both the complaint and counter-complaint, and to 

address each party‘s affirmative defenses.‖ Anil Construction I, at *12. Anil

Construction alleges several deficiencies with respect to the trial court‘s order, including: 

(1) that the trial court failed to address the parties‘ modifications to the contract, (2) that 

the trial court failed to address Anil Construction‘s affirmative defenses of set-off, 

recoupment, and duress, (3) that the trial court failed to explain how the contract should 

be interpreted, and (4) that the trial court failed to address the issues of breach and 

material breach.

Before we can address Anil Construction‘s concern, some background on Rule 

52.01 findings of facts and conclusions of law is helpful. Effective July 1, 2009, Rule 

52.01 of the Tennessee Rules of Civil Procedure provides:

In all actions tried upon the facts without a jury, the court 

shall find the facts specially and shall state separately its 

conclusions of law and direct the entry of the appropriate 

judgment. . . . If an opinion or memorandum of decision is 

filed, it will be sufficient if the findings of fact and 

conclusions of law appear therein. Findings of fact and 

conclusions of law are unnecessary on decisions of motions 

under Rules 12 or 56 or any other motion except as provided 

in Rules 41.02 and 65.04(6).

Tenn. R. Civ. P. 52.01 (emphasis added).4This Court has previously held that the 

requirement to make findings of fact and conclusions of law is ―not a mere technicality.‖ 

In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. 

May 15, 2009).

Instead, the requirement serves the important purpose of ―facilitat[ing] appellate 

review and promot[ing] the just and speedy resolution of appeals.‖ Id.; White v. Moody, 

171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 

(Tenn. Ct. App. 1990). The Tennessee Supreme Court recently explained that Rule 52.01 

findings and conclusions serve three important purposes:

 

4

Prior to July 1, 2009, trial courts were only required to make specific findings of fact and conclusions of law ―upon 

request made by any party prior to the entry of judgment.‖ See Poole v. Union Planters Bank N.A., No. W2009-

01507-COA-R3-CV, 337 S.W.3d 771, 791 (Tenn. Ct. App. 2010) (noting the amendment). However, the current 

version of Rule 52.01 requires the court to make these findings regardless of a request by either party. Id.
14

First, findings and conclusions facilitate appellate 

review by affording a reviewing court a clear understanding 

of the basis of a trial court‘s decision. See Estate of Bucy v. 

McElroy, No. W2012-02317-COA-R3-CV, 2013 WL 

1798911, at *3–4 (Tenn. Ct. App. Apr. 26, 2013) (noting that 

the Rule 52.01 requirement facilitates appellate review); 

Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 

WL 6727533, at *5 (Tenn. Ct. App. Dec. 27, 2012) (same); 

In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 

1362314, at *8 (Tenn. Ct. App. May 15, 2009) (recognizing 

that without findings and conclusions appellate courts are left 

to wonder about the basis of a trial court‘s decision); In re 

M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, 

at *19 (Tenn. Ct. App. Apr. 21, 2004 (same); 9C [Charles A. 

Wright et al.,] Federal Practice and Procedure § 2571, at 219 

[(3d ed. 2005)] [hereinafter 9C Federal Practice and 

Procedure] (recognizing that specific findings by the trial 

court facilitate appellate review). Second, findings and 

conclusions also serve ―to make definite precisely what is 

being decided by the case in order to apply the doctrines of 

estoppel and res judicata in future cases and promote 

confidence in the trial judge‘s decision-making.‖ 9C Federal 

Practice and Procedure § 2571, at 221–22. A third function 

served by the requirement is ―to evoke care on the part of the 

trial judge in ascertaining and applying the facts.‖ Id. at 222. 

Indeed, by clearly expressing the reasons for its decision, the 

trial court may well decrease the likelihood of an appeal. 

Hardin, 2012 WL 6727533, at *5.

Lovelace v. Copley, 418 S.W.3d 1, 34–35 (Tenn. 2013). ―Without such findings and 

conclusions, this court is left to wonder on what basis the court reached its ultimate 

decision.‖ In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-

01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. Apr. 21, 2004)).

Rule 52.01 findings are particularly important in cases involving construction 

contracts. See generally Lake v. Haynes, No. W2010–00294–COA–R3–CV, 2011 WL 

2361563 (Tenn. Ct. App. June 9, 2011). In Lake, the court remanded the case for findings 

of fact and conclusions of law, stating that

construction cases rarely lend themselves to a global finding 

that one party or the other was entirely at fault; frequently the 

quality of the construction may be in compliance with the 

applicable standards in some respects but not in others, and 
15

the oral communications over the course of the construction 

can lead to an array of misunderstandings and differing 

accounts of events. 

Lake, 2011 WL 2361563, at *5. Similarly, in John Allen Construction, LLC v. 

Hancock, No. W2004-02920-COA-R3-CV, 2006 WL 473732 (Tenn. Ct. App. Mar. 1, 

2006), this Court remanded a case based on several deficiencies in the trial court‘s order: 

Neither the voluminous transcript nor the technical record 

include any explanation of the trial court‘s determinations of 

credibility, its factual findings on the numerous allegations of 

material breaches or substantial defects in the construction, its 

factual findings on the necessity of remedial measures or 

amounts expended to complete the construction or address 

various alleged problems with the structural integrity of the 

home. There are no factual findings on the issues regarding 

the status of John Allen Construction‘s license or the 

ramifications of any such licensing issues, and no factual 

findings regarding the alleged ―cap‖ in the contract price to 

which the parties purportedly agreed. We note that the final 

order states that John Allen Construction is ―due an unpaid 

bill‖ from the Hancocks ―in the amount of $71,092.00,‖ and 

that this amount correlates with the amount sought by John 

Allen Construction in its original complaint. Apart from that, 

it is not possible to discern the basis on which the trial court 

calculated its award of damages.

Id. at *5 (emphasis added). The John Allen Court found that it was left with little choice 

but to vacate the trial court‘s judgment and remand the case for findings of fact and 

conclusions of law sufficient for the appellate court to review the calculation of damages 

and other issues raised on appeal by both parties. Id. at *6. With the foregoing guidance

in mind, we address Anil Construction‘s alleged deficiencies in the trial court‘s order. 

We have thoroughly reviewed the trial court‘s Amended Judgment in this case and 

Anil Construction‘s argument regarding its perceived deficiencies. Although the 

Amended Judgment is not as detailed as Anil Construction would prefer, our review 

demonstrates that the findings of fact and conclusions of law in the Amended Judgment 

are sufficient to facilitate appellate review. To this end, we turn to the language in the 

Amended Judgment.

We begin with the findings of fact and conclusions of law in the Amended 

Judgment as they pertain to breach. The trial court specifically found that Mr. McCollum 

did not breach the original contract or its subsequent modifications for any alleged failure 
16

to timely complete his work because ―the delays were caused by a number of reasons. 

They were caused by the plans being incomplete, by the weather, by actions or inactions 

of other subcontractors, and by [Anil Construction].‖ Notably, the trial court‘s order 

included specific credibility findings regarding Mr. Keshani‘s testimony. To this end, the 

trial court stated that it found that Mr. Keshani was not a credible witness and rejected his 

testimony. Although the trial court did not explicitly state it did not credit Mr. Keshani‘s 

testimony concerning external delays, we can infer that the trial court did not believe his 

testimony because the trial court rejected the testimony as a whole. The record is devoid 

of any clear and convincing evidence demonstrating why the trial court erred in its 

credibility finding; and thus, we will not reevaluate its credibility assessment. Franklin 

Cnty. Bd. of Educ., 337 S.W.3d at 811. Additionally, the trial court concluded that Mr. 

McCollum did not breach the contract for any allegedly defective work, explaining that 

Cinema 10 had been operating with the defects and that Mr. McCollum was prohibited 

from entering the premises.

The trial court‘s order also addresses the toe kick, listed as Item 15 on Mr. 

Keshani‘s email to Mr. McCollum. The trial court found that, ―Neither the contract nor 

the plans called for the installation of a toe kick at this place.‖ Accordingly, the trial court 

found that Mr. McCollum did not breach the contract by failing to install one because he 

was not required to do so under the contract or any subsequent modification. We further 

note that George Bedocs, the construction expert, opined that it would cost approximately 

$17,050.00 to repair or complete Items 1 through 15. However, he also testified that the 

cost to add the toe kick comprised most of his $17,050.00 estimate, but he did not break 

out the cost of adding the toe kick. Thus, he did not offer a clear estimate as to the repair 

or completion of only Items 1 through 14. As evidenced in the Amended Judgment, the 

trial court, accordingly, rejected Mr. Bedocs‘ testimony because it did not include an 

estimate pertaining to only Items 1 through 14, the only items the trial court found Mr. 

McCollum was obligated to correct. The trial court credited Mr. McCollum‘s estimate of 

$1,200.00 to repair Items 1 through 14.

We next turn to the trial court‘s calculation of damages. The trial court‘s order 

states that Anil Construction promised to pay Mr. McCollum $44,650.00 total—one-half 

due when the parties entered the contract and one-half due upon Mr. McCollum‘s 

completion of the work. Thus, at the time of trial, the court found that $22,325.00 of the 

original contract price was still owed to Mr. McCollum. However, the trial court notes 

that the modifications altered both Mr. McCollum and Anil Construction‘s obligations: 

―[S]everal changes were made to the scope of McCollum‘s work and the parties agreed 

that these changes increased the remaining balance to $24,296.33.‖ Still, the trial court 

found that, because Mr. McCollum had substantially complied with the original contract 

and its modifications, Anil Construction‘s failure to issue payment resulted in a breach. 

Accordingly, the trial court awarded damages in the remaining contractual amount of 

$24,263.00 less the $1,200.00 that Mr. McCollum estimated to complete Items 1 through 

14. Thus, the reduction of the judgment in favor of Mr. McCollum by $1,200.00 
17

addresses the affirmative defenses of set-off and recoupment. In reaching this number, 

the trial court specifically found that ―Anil [Construction] has not presented a precise 

amount for repair or correction of Items 1 through 14. McCollum‘s estimate was 

$1,200.00.‖ Further, as previously stated, the trial court simply did not credit the entirety 

of Mr. Keshani‘s testimony, which includes his testimony as to any damages he was 

entitled to recoup.5

With regard to Anil Construction‘s affirmative defenses of unclean hands and 

duress, the trial court‘s credibility findings sufficiently address those issues. The majority 

of the evidence presented regarding the affirmative defenses came through the testimony 

of Mr. Keshani, which the trial court did not credit. From the trial court‘s order, we can 

discern that the trial court simply did not credit Mr. Keshani‘s allegations that Mr. 

McCollum had threatened him. Accordingly, bearing in mind that the order must be 

sufficient to facilitate appellate review, we must conclude that the trial court has 

adequately addressed Anil Construction‘s affirmative defenses through its credibility 

findings of Mr. Keshani.

Based on the foregoing, we conclude that the trial court‘s findings of fact and 

conclusions of law within its Amended Judgment are sufficient.

Preponderance of the Evidence

The second aspect of Anil Construction‘s argument on appeal concerns whether 

the evidence preponderates against the trial court‘s findings and conclusions in its 

Amended Judgment. Because this case was tried by the court, sitting without a jury, we 

review the factual issues de novo upon the record with a presumption of correctness. 

Tenn. R. App. P. 13(d). Unless the evidence preponderates against the trial court‘s 

findings, we must affirm, absent error of law. Id. In order for the evidence to 

preponderate against the trial court‘s findings, it must support another finding of fact with 

 

5 The testimony on Anil Construction‘s damages requires some clarification. In its complaint, Anil Construction 

states that it is seeking damages in an amount to be proven at trial. Mr. Keshani testified briefly about his lost profits 

from the concessions stand because of the delays. The trial court asked counsel for Anil Construction whether it was 

seeking damages relating to lost revenues. Counsel stated, 

With respect to lost profit analysis, no, Your Honor, we‘re not here to tell - - talk 

about lost profits. What we are saying, the job was delayed, he lost revenues as a 

result of those delays. But as far as the lost profits, that‘s not what we‘re here to 

do. 

In other words, Anil Construction only sought damages stemming directly from the breach of contract, but it did not 

seek consequential damages. Despite seeking damages only for damages stemming from the alleged breach, Anil 

Construction failed to provide a definite amount of the cost to fix Items 1 through 14, either through his own 

testimony or his expert‘s testimony.
18

greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. 

Ct. App. 2000).

Anil Construction argues that the preponderance of the evidence does not support 

the findings and conclusions in the Amended Judgment. Specifically, Anil Construction 

argues that the preponderance of the evidence demonstrates that Mr. McCollum was the 

first to breach the contract, and therefore, should not be able to recover damages. Anil 

Construction contends that it repeatedly put Mr. McCollum on notice of the alleged 

defective work and gave him an opportunity to fix it. Accordingly, it contends that Mr. 

McCollum breached the parties‘ contract when he ―voluntarily cho[]se not to complete 

his work.‖

For its argument, Anil Construction relies on McClain v. Kimbrough 

Construction Co., 806 S.W.2d 194 (Tenn. Ct. App. 1990). McClain involved a 

construction contract between a general contractor and a brick mason. The brick mason 

sued the general contractor, alleging breach of contract because the general contractor 

unilaterally terminated the contract before the work was complete. The brick mason 

sought to recover its lost profits. The general contractor counterclaimed, alleging that the 

brick mason‘s work was defective. Id. at 196. 

In analyzing the parties‘ claims that each other‘s conduct amounted to a material 

breach, McClain Court addressed the factors to consider when determining whether a 

party‘s failure to perform is material:

(a) the extent to which the injured party will be deprived of 

the benefit which he reasonably expected;

(b) the extent to which the injured party can be adequately 

compensated for the part of that benefit of which he will be 

deprived;

(c) the extent to which the party failing to perform or to offer 

to perform will suffer forfeiture;

(d) the likelihood that the party failing to perform or to offer 

to perform will cure his failure, taking account of all the 

circumstances including any reasonable assurances;

(e) the extent to which the behavior of the party failing to 

perform or to offer to perform comports with standards of 

good faith and fair dealing.

Id. at 199 (citing Restatement (Second) of Contracts § 241 (1979)). Applying the above 

factors, the court in McClain determined that the deficiencies in the brick mason‘s work 

were not material. Ultimately, the trial court found in favor of the brick mason, and we 

affirmed. The McClain Court held that the general contractor ―had a duty to give [the 

brick mason] notice and a reasonable opportunity to correct its defective work before 

terminating the contract. [The general contractor‘s] failure to give [the brick mason] 
19

notice constitutes a material breach.‖ Id. at 198–99. Thus, the general contractor had an 

obligation to put the brick mason on notice of the alleged defects and permit the brick 

mason an opportunity to correct them. Accordingly, the general contractor was the 

breaching party. Anil Construction contends that, because it put Mr. McCollum on notice 

of the alleged defects in his work, it did not breach the contract. Instead, it asserts that 

Mr. McCollum breached when he allegedly refused to correct his work.

On the contrary, Mr. McCollum asserts that the preponderance of the evidence 

supports the trial court‘s conclusion that he substantially complied with the contract and 

did not commit a material breach. Mr. McCollum‘s argument is two-fold. First, he asserts 

that did not breach the contract because the evidence demonstrates that a variety of 

factors, including Mr. Keshani‘s own actions, caused the delays in construction. Second, 

any alleged breach or defective work was not material because the defective items 

amounted to punch list items, which were easily remedied, and cannot form the basis of a 

material breach.

Upon a thorough review of the record, we cannot conclude that the evidence 

preponderates against the trial court‘s findings and conclusions concerning both breach 

and the materiality of breach. Regarding Anil Construction‘s assertions of allegedly 

untimely performance, the evidence does not preponderate against the trial court‘s 

finding that the cause of the delays was outside of Mr. McCollum‘s control.6 We note 

again that the trial court simply did not credit Mr. Keshani‘s testimony, including his 

testimony concerning the delays. On the other hand, the testimony of Mr. McCollum 

clearly demonstrates that his work was delayed for various reasons, including Mr. 

Keshani‘s delay in providing information regarding the coloring of the cabinetry, Mr. 

Keshani‘s changes to the original plans, Mr. Keshani‘s failure to provide details 

regarding certain aspects of the project, and delays caused by other subcontractors. Thus, 

we cannot conclude that the evidence preponderates against the trial court‘s findings that 

Mr. McCollum did not breach the contract by failing to timely complete his work.

Further, regarding its argument that Mr. McCollum breached the contract based on 

allegedly defective workmanship, Anil Construction argues that Mr. McCollum 

essentially abandoned the project. It contends that the allegedly incomplete or defective 

items amounted to a material breach on behalf of Mr. McCollum. The items listed as 

allegedly incomplete or defective, Items 1 through 15, constitute a ―punch list,‖ and were 

referred to as a punch list by Mr. Keshani in his email to Mr. McCollum. Construction 

defects that constitute a punch list typically do not amount to a breach of contract. 

Madden, 315 S.W.3d at 825 (―We find no indication that Madden Phillips breached the 

contract with respect to the normal punch-list items discovered by Germantown during its 

 

6 Although we note that the contract contained a provision stating that time was of the essence, Tennessee law 

provides that a party to a contract may not terminate a contract and sue for breach when that party caused the delay 

of performance. Madden Phillips Constr., Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 818–19 (Tenn. Ct. App. 

2009).
20

inspections.‖). Nothing in the record preponderates against the trial court‘s conclusion 

that Mr. McCollum substantially complied with the contract by installing the cabinets 

because the remaining items were merely punch list items that did not constitute a breach 

of the contract. 

However, even assuming these punch list items did amount to a breach, such a 

breach was not material. This Court has stated that: 

[I]f the prior breach of such a contract was slight or minor, as 

opposed to material or substantial, the nonbreaching party is 

not relieved of his or her duty of performance, although he or 

she may recover damages for the breach. In what is 

essentially a variation on the above rule, some courts have 

indicated that a breach of contract which is only ―partial,‖ as 

opposed to ―total,‖ will not relieve the other party from his or 

her obligation to perform. 

Peoples Bank v. Lacy, No. E2011-01489-COA-R3CV, 2012 WL 1664008, at *5 (Tenn. 

Ct. App. May 14, 2012) (citing 14 Williston on Contracts § 43:5). Here, the evidence at 

trial demonstrated that Cinema 10 was still able to open, albeit delayed, and operate as a 

movie theater. Notably, many of the allegedly defective items were in use at the time of 

trial, including the cabinetry. Further, according to the only testimony on this issue, Items 

1 through 14 amounted to only approximately $1,200.00 in work to complete. Under the 

particular circumstances of this case, a punch list totaling $1,200.00 of unfinished work is 

not a material breach of contract worth more than $44,000.00. Pursuant to the reasoning

in Peoples Bank, Anil Construction was not relieved of its contractual obligation to remit 

payment to Mr. McCollum, despite minor issues with his work, because the punch list 

items were not a material breach. Anil Construction, however, was entitled to recover 

damages from the breach by Mr. McCollum concerning Items 1 through 14. To this end, 

the trial court credited Mr. McCollum‘s testimony that it would cost approximately 

$1,200.00 to correct these items and deducted that amount from Mr. McCollum‘s total 

award. Accordingly, we cannot conclude that the evidence preponderates in favor of Anil 

Construction‘s argument that Mr. McCollum‘s breach was material and that it was 

entitled to forego payment of the remainder of the contract price.

Conclusion

The judgment of the Madison County Chancery Court is affirmed, and this cause 

is remanded to the trial court for all further proceedings as may be necessary and are 

consistent with this Opinion. Costs of this appeal are taxed to the appellant, Anil 

Construction, Inc., and its surety.
21

_________________________________

J. STEVEN STAFFORD, JUDGE