IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 15, 2015 Session

RICHARD HARKLEROAD, ET AL. v. FRONTIER BUILDING AND 

DEVELOPMENT, INC.

 Appeal from the Circuit Court for Knox County

No. 227212 Harold Wimberly, Jr., Judge

No. E2013-00664-COA-R3-CV-FILED-APRIL 23, 2015

This appeal concerns an alleged breach of contract. Richard and Shannon Harkleroad 

(“the Harkleroads”) sued Frontier Building and Development, Inc. (“Frontier”) alleging 

faulty construction of their residence. Frontier filed a counterclaim alleging nonpayment. The Circuit Court for Knox County (“the Trial Court”) found that the 

Harkleroads were entitled to recovery in the amount of $10,000 for construction defects 

to their porches and driveway. Regarding Frontier’s counterclaim, the Trial Court found 

that Frontier had performed work in addition to that required in the original contract and 

awarded Frontier $4,103.75 for this work. The Trial Court awarded neither side 

attorney’s fees under their contract. The Harkleroads appeal. We reverse the Trial Court 

as to its award of damages to Frontier and remand this case for the Trial Court to award

reasonable attorney’s fees under the contract to the Harkleroads. Otherwise, we affirm 

the judgment of the Trial Court.

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

Affirmed, in part, and, Reversed, in part; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.

Margaret W. Vinsant, Knoxville, Tennessee, for the appellants, Richard and Shannon 

Harkleroad.

R. Deno Cole, Knoxville, Tennessee, for the appellee, Frontier Building and 

Development, Inc.1

 

1

Frontier filed no brief on appeal. Indeed, Frontier filed a motion to dispense with oral argument, 

informing this Court that the two sole stockholders and principals of Frontier had retained counsel to file 

a petition for Chapter 7 bankruptcy. The corporation itself, however, is not under bankruptcy protection. 
-2-

OPINION

Background

In October 2011, the Harkleroads sued Frontier in the General Sessions 

Court for Knox County for breach of contract related to Frontier’s construction work on 

the Harkleroads’ residence.2 The Harkleroads non-suited the case and refiled in March 

2012. In April 2012, Frontier filed a counterclaim for breach of contract against the 

Harkleroads. The General Sessions Court heard the matter in May 2012, after which both 

parties appealed to the Trial Court for a de novo hearing. This case was tried in January 

2013. 

The Harkleroads entered into a contract (“the Contract”) with Frontier in 

February 2008. Under the Contract, Frontier was to build a home for the Harkleroads. 

The Contract was a “cost-plus” contract, with the final price to consist of the actual labor 

and material costs plus 15% above the actual cost of the project. Shawn Roderiques and 

Christian Johnson, the owners of Frontier, signed the Contract for Frontier. 

Richard Harkleroad testified. Mr. Harkleroad stated that he and his wife 

chose Frontier to build their home because they had seen the quality of Frontier’s other 

work. Frontier estimated the cost of construction to be $527,275.00. The parties agreed 

that this figure was not set in stone. The Harkleroads visited the property regularly 

during the construction. The parties had a practice of making changes verbally or by 

email. The parties never executed any formal change orders during construction.

By October 2008, the project was running over the estimated cost by about 

$40,000. The Harkleroads made efforts to cut costs by, among other things, undertaking 

to do the landscaping and sodding themselves. Frontier did not do the landscaping in the 

front and backyards as was originally planned.

After moving into the house, the Harkleroads began experiencing water and 

flooding problems. In December 2008, the roof began leaking around the chimney 

causing damage in the master bedroom on the main floor and the den in the basement. 

The roof around the chimney was repaired by Frontier and K.C. Construction in April 

2009. Additional water issues emerged. According to Mr. Harkleroad, the grading of the 

backyard sloping caused water problems around the back of the house. Photographs of 

the affected area were admitted into evidence.

 

Frontier has closed its operations following an unsuccessful development project. According to Frontier, 

this appeal is moot. We denied Frontier’s motion and now proceed to decide this appeal.

2

The record contains no transcript. We draw the background facts of this case from a Statement of 

Evidence.
-3-

In response to the Harkleroads’ request for help, Frontier installed a French 

drain in the backyard at no cost to the Harkleroads. This reduced the level of flooding 

but did not completely resolve the problem. The Harkleroads completed their final 

walkthrough of the home in December 2008. Mr. Harkleroad shook hands with Mr. 

Roderiques and Mr. Johnson and thanked them for their work. While Article 10.1 of the 

Contract provided a one-year builder’s warranty, Mr. Harkleroad testified that he never 

received any written warranty.

Shannon Harkleroad testified. The Harkleroads’ home was substantially 

completed in November 2008. The family moved into the house in December 2008. 

Mrs. Harkleroad testified that Frontier returned to the house to effect repairs multiple 

times through July 2009. According to Mrs. Harkleroad, a number of problems never 

were fixed by Frontier. In February 2010, the Harkleroads sent Frontier a letter detailing 

the various outstanding issues. No reply from Frontier was forthcoming. The 

Harkleroads had not submitted payment on the 2009 invoice from Frontier for work it did

repairing the interior water damage. By the time this case was filed, there were three 

main problem areas with the home: the grading of the backyard, the driveway, and the 

front and back porches. In September 2011, in response to a letter from the Harkleroads 

outlining their problems, Frontier responded by denying liability or defects. Mrs. 

Harkleroad testified to the nature of the defects. The top layer of the driveway was 

disintegrating. Grout and mortar were breaking off the porches. According to Mrs. 

Harkleroad, she and her husband performed some landscaping but did not grade the 

property at any point.

Ronald Corum (“Mr. Corum”), a professional engineer, testified for the 

Harkleroads. Mr. Corum was qualified as an expert witness. Mr. Corum had conducted 

evaluations of the Harkleroads’ home. According to Mr. Corum, the porches were 

deteriorating and much of the grout was missing. Mr. Corum also testified to the spalling 

on the driveway.3 Mr. Corum did not believe that the Harkleroads were responsible for 

this spalling, although Mr. Corum could not say definitively what had caused the 

spalling. Mr. Corum testified that the driveway needed to be replaced. Regarding the 

grading issue, Mr. Corum testified that the grading sloped toward the house in excess of 

building code requirements. Mr. Corum stated that a rough grade always should be 

completed, and that the Harkleroads’ flooding problems mainly were a result of improper 

grading.

Daniel Tate Rice (“Mr. Rice”), the owner of Grand Master Concrete, 

testified for the Harkleroads. Mr. Rice inspected the Harkleroads’ home. According to 

 

3

“Spalling” refers to the chipping or crumbling of rock or concrete.
-4-

Mr. Rice, the costs for repairs were as follows: $10,575.00 to tear out and re-do the front 

porch; $5,625.00 to remove the pavers and grout and finish the back porch; $7,394.00 to 

repair the water drainage issue; and, $17,040.00 to remove and re-pour the driveway.

Hunter Birtsch (“Mr. Birtsch”), a sales account manager for Ready Mix 

USA who was present when the concrete was delivered to the Harkleroads’ property, 

testified for Frontier. Mr. Birtsch testified that the concrete supplied by Ready Mix USA 

had the proper water-to-cement ratio and was mixed according to industry standards. Mr. 

Birtsch asserted that the driveway spalling looked like the result of exposing the concrete 

to car care products and was not the fault of Ready Mix USA. Mr. Birtsch asserted that 

the driveway was completed in a workmanlike manner and the Harkleroads were in fact 

responsible for the problems that arose with the driveway. Mr. Birtsch testified that Mr. 

Rice’s estimates for cost of repairs were overstated. With respect to the porches, Mr. 

Birtsch stated that the pavers did not need to be replaced, but instead that the missing 

grout should be filled in as needed.

Chris Johnson (“Mr. Johnson”), co-owner of Frontier, testified. Mr. 

Johnson testified that the driveway and porches were installed in a workmanlike manner. 

According to Mr. Johnson, Frontier was not liable for defects in grading because the 

Harkleroads had taken on the responsibility of the landscaping. Mr. Johnson further 

testified that the issue surrounding the slope of the backyard would have been corrected 

had the Harkleroads installed a swimming pool as they had considered doing. According 

to Mr. Johnson, the grading work performed by Frontier was intended to be a rough and 

not final grade. Mr. Johnson stated that the Harkleroads caused the problems with the 

driveway by parking cars dripping various chemicals on the driveway. Mr. Johnson 

testified that the spalling was concentrated on areas of the driveway where the 

Harkleroads parked their cars. Mr. Johnson referred to Mr. Rice’s repair estimates as 

ridiculous and seriously inflated. Regarding the porches, Mr. Johnson testified that 

replacing the mortar in the pavers would cost a few hundred dollars. Mr. Johnson 

testified that fewer than ten percent of the pavers on the back porch were missing mortar 

and fewer than two percent of the bricks on the front porch were missing mortar. 

Concerning the final grading, Mr. Johnson flatly denied any responsibility. Mr. Johnson 

stated the drainage issue could be fixed easily by installing another French drain.

Mr. Johnson also testified about the roof leak for which Frontier performed 

work. Frontier entered into evidence the invoice sent to the Harkleroads and invoices 

from subcontractors for work they had performed to repair the damage. In December 

2009, Frontier sent the Harkleroads an invoice requesting payment for repair work 

undertaken to fix the interior water damage from the roof leak. The Harkleroads never 

paid this invoice. The total of the outstanding invoice was $4,703.74.
-5-

In August 2013, the Trial Court entered its amended final judgment, 

granting some relief to both sides. The Trial Court wrote as follows:

Judgment was entered in this case on February 8, 2013. Upon 

motion of the plaintiffs to supplement that judgment the following is added. 

This is done because no transcript was made of the trial and the Court’s 

announced findings.

This action was originally filed in General Sessions Court by 

plaintiffs who allege breach of contract for construction of a house. The 

case was voluntarily dismissed in General Sessions Court, refiled, and then 

appealed to this Court. The Court finds that this action was timely filed.

Plaintiffs alleged various defects in labor and construction of the 

house. These involved the driveway, porches, and grading of the back 

yard. The contract itself was characterized as a cost plus contract. The 

parties could agree to add or subtract from the contract and the final price 

would be a percentage in addition to actual labor and material costs.

The parties and various witnesses testified at the trial. Exhibits 

including photographs of the areas in question were submitted. Widely 

varying opinions were given concerning the extent of any defects, the 

causes of such defects, and amounts necessary to correct any defects. 

Original defendants filed a counter action seeking damages for additional 

work done during the project not included in the original agreement.

The Court found by a preponderance of the evidence that the 

plaintiffs had indicated to defendants that no further grading work need be 

done in the back yard since they had other plans to accomplish that 

themselves. No recovery was allowed for any deficiencies or defects in the 

backyard grading. The Court further found that plaintiffs were entitled to a 

recovery for defects in the porches and driveway. Considering the exhibits 

and testimony relating to these areas, the Court awarded $10,000.00 in 

damages to plaintiffs. With regard to the counter claim, the Court found 

that the original defendant had done work for which it had not been paid as 

an addition to the original contract and found and awarded damages to the 

original defendant in the amount of $4,103.75. With regard to the attorney 

fees, the court found that since both parties were entitled to recover under 

the contract attorney fees would be considered as set off and no attorney 

fees would be awarded.
-6-

The Trial Court denied a motion by the Harkleroads to alter or amend judgment. The 

Harkleroads filed an appeal with this Court.

Discussion

Although not stated exactly as such, the Harkleroads raise the following 

issues on appeal: 1) whether the Trial Court erred in finding that the Harkleroads had 

assumed responsibility of the grading work; 2) whether the Trial Court erred in 

calculating the amount of damages awarded to the Harkleroads; 3) whether the Trial 

Court erred in finding that the work performed to repair water damage from the defective 

roof was additional to the original contract requiring compensation to Frontier; and, 4) 

whether the Trial Court erred in finding that the Harkleroads were not entitled to 

attorney’s fees.

The factual findings of the Trial Court are accorded a presumption of 

correctness, and we will not overturn those factual findings unless the evidence 

preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 

721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a 

pure de novo standard of review, according no deference to the conclusions of law made 

by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 

S.W.3d 706, 710 (Tenn. 2001). In Beaty v. McGraw, 15 S.W.3d 819 (Tenn. Ct. App. 

1998), this Court stated:

Determinations concerning the amount of damages are factually 

driven. See Loftis v. Finch, 491 S.W.2d 370, 377 (Tenn. Ct. App. 1972). 

Thus, the amount of damages to be awarded in a particular case is 

essentially a fact question. See Sholodge Franchise Sys., Inc. v. McKibbon 

Bros., Inc., 919 S.W.2d 36, 42 (Tenn. Ct. App. 1995); Buice v. Scruggs 

Equip. Co., 37 Tenn. App. 556, 571, 267 S.W.2d 119, 125 (1953). 

However, the choice of the proper measure of damages is a question of law 

to be decided by the court. See American Trust Inv. Co. v. Nashville 

Abstract Co., 39 S.W. 877, 881 (Tenn. Ch. App. 1896); see also Business 

Men's Assurance Co. v. Graham, 891 S.W.2d 438, 449 (Mo. Ct. App. 

1994); Town of Fifield v. State Farm Mut. Auto. Ins. Co., 119 Wis.2d 220, 

349 N.W.2d 684, 686 (Wis. 1984).

Beaty, 15 S.W.3d at 827. See also GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 541 

(Tenn. Ct. App. 2005).
-7-

As stated by this Court in Lee Masonry, Inc. v. City of Franklin, No. 

M2008-02844-COA-R3-CV, 2010 WL 1713137 (Tenn. Ct. App. Apr. 28, 2010), no appl. 

perm. appeal filed:

“A party who has materially breached a contract is not entitled to damages 

stemming from the other party’s later material breach of the same contract. 

Thus, in cases where both parties have not fully performed, it is necessary 

for the courts to determine which party is chargeable with the first uncured 

material breach.”

Lee Masonry, 2010 WL 1713137, at *10 (quoting McClain v. Kimbrough Constr. Co., 

Inc., 806 S.W.2d 194, 199 (Tenn. Ct. App. 1990)).

We first address whether the Trial Court erred in finding that the 

Harkleroads assumed responsibility of the grading work. The record contains no 

transcript of the trial, but rather a Statement of Evidence. Based on our review of the 

Statement of Evidence, there obviously is a contradiction in the accounts put forward by 

both sides regarding who was to be responsible for the grading.

The Harkleroads argue that Frontier could not in any event delegate their 

responsibility under the Contract. See Tenn. Code Ann. § 47-50-112 (c); Fed. Ins. Co. v. 

Winters, 354 S.W.3d 287 (Tenn. 2011). We, however, believe this is an erroneous 

analysis. At issue is not whether Frontier could delegate its responsibilities, as such. We 

must determine what Frontier’s and the Harkleroads’ responsibilities were. If, in fact, the 

Harkleroads represented to Frontier that they would assume responsibility for the grading

in order to lower the construction costs, the Harkleroads would have no contractual basis 

to receive damages from Frontier for defective grading.

The record, again, is contradictory. Nevertheless, we cannot say that the 

evidence preponderates against the Trial Court’s finding “that the plaintiffs had indicated 

to defendants that no further grading work need be done in the back yard since they had 

other plans to accomplish that themselves.” Our standard of review is limited. We do 

not find evidence in the record sufficient to overturn this finding by the Trial Court. This 

being so, we find that the Harkleroads assumed responsibility for future grading, and 

Frontier was not responsible or liable for additional grading work. We affirm the Trial 

Court as to this issue. 

We next address whether the Trial Court erred in calculating the amount of 

damages awarded to the Harkleroads. The Trial Court arrived at the figure of $10,000 for 

the driveway and porches. The Harkleroads request approximately $40,000 for costs to 

repair the grading, driveway, and porches. We already have addressed responsibility for 
-8-

the grading. With respect to the figures for the driveway and porches, the evidence does 

not preponderate against the Trial Court’s findings, and we do not find that the Trial 

Court committed reversible error in arriving at a figure of $10,000. We affirm the Trial 

Court’s calculation of damages. 

We next address whether the Trial Court erred in finding that the work 

performed to repair water damage from the defective roof was additional to the original 

contract requiring compensation to Frontier. The Harkleroads argue, among other things, 

that they had no contractual duty to pay Frontier for work done to repair damage caused 

by Frontier’s defective work, and that, at any rate, Frontier is precluded from recovering 

damages on its breach of contract claim considering it committed the first material, 

uncured breach. We find merit in this argument. 

While the Trial Court characterized the additional work by Frontier as 

“work for which it had not been paid as an addition to the original contract,” in reality 

this additional work arose out of Frontier’s original contractual work and was required to 

correct damages resulting from Frontier’s original work. It would be unjust, and contrary 

to applicable law, to allow Frontier to recover on a breach of contract claim in a 

construction case for additional work that was necessary only because of Frontier’s 

defective original work and where Frontier already had breached the Contract in a 

material, uncured manner. We reverse the Trial Court in its award of $4,103.75 to 

Frontier.

The final issue we address is whether the Trial Court erred in finding that 

the Harkleroads were not entitled to attorney’s fees. The Contract contains a clear 

provision providing for reasonable costs and expenses, including attorney’s fees, for the 

prevailing party in litigation arising out of the enforcement, duties, and obligations of the 

Contract. Given our reversal of the Trial Court’s award of damages to Frontier, the 

Harkleroads unambiguously are now the prevailing party and are therefore entitled to an 

award of attorney’s fees. We reverse the Trial Court on this issue and remand for the 

Trial Court to conduct a hearing to determine an appropriate award of reasonable 

attorney’s fees for the Harkleroads.

In summary, we affirm the Trial Court in its finding that Frontier was not 

responsible or liable for additional grading work as the Harkleroads had assumed this 

responsibility. We also affirm the Trial Court in its calculation of damages awarded to 

the Harkleroads. We reverse the Trial Court’s award of damages to Frontier on its 

counterclaim. We further reverse the Trial Court in its declining to award reasonable 

attorney’s fees to the Harkleroads, and we remand this case for the Trial Court to conduct 

a hearing toward that end.
-9-

Conclusion

The judgment of the Trial Court is affirmed, in part, and reversed, in part, 

and this cause is remanded to the Trial Court for collection of the costs below, and for a 

hearing to determine reasonable attorney’s fees for the Harkleroads. The costs on appeal 

are assessed against the Appellee, Frontier Building and Development, Inc.

_________________________________ 

D. MICHAEL SWINEY, JUDGE