               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                October 4, 2010 Session

                      EARL FAULKNER, ET AL. v.
                TOM EMMETT CONSTRUCTION COMPANY

                  Appeal from the Chancery Court for Knox County
                   No. 170184-2    Michael W. Moyers, Chancellor


           No. E2010-00361-COA-R3-CV - FILED NOVEMBER 18, 2010


Earl and Faye Faulkner (“Plaintiffs”) hired Tom Emmett Construction Company
(“Defendant”) to construct a new driveway at their home in Knox County. Plaintiffs refused
to pay $8,000 of the total $18,000 contract price because they were dissatisfied with the
workmanship of the driveway. Plaintiffs sued Defendants seeking as damages what it would
cost to remove and replace the allegedly defective driveway. Defendant asserted that the
driveway was properly constructed and filed a counterclaim for the remaining $8,000 balance
owed on the oral contract. Following a bench trial, the Trial Court concluded that any
problems with the driveway were not sufficient to require that it be removed and replaced.
Because there was a problem with how the concrete on one portion of the driveway had been
poured, the Trial Court required Plaintiffs to pay Defendant only $5,000 of the remaining
$8,000 owed on the contract. Plaintiffs appeal. We affirm as modified.


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


D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.


George F. Legg and Charles D. Waller, Knoxville, Tennessee, for the Appellants, Earl and
Faye Faulkner.


Daniel Kidd, Knoxville, Tennessee, for the Appellee, Tom Emmett Construction Company.
                                          OPINION

                                        Background

             Plaintiffs hired Defendant to install a concrete driveway at their home located
in Knox County. Plaintiffs claimed the driveway was defectively installed, and this lawsuit
seeking damages eventually was filed. The agreed upon amount for the installation initially
was $15,000. According to the complaint:

                      The work undertaken by the Defendant was done
              extremely poorly and has resulted in very poor overall quality of
              the driveway and concrete finish. To wit, and including, but not
              limited to: (a) there exist ridges, humps, screed marks, boot
              prints, and unfinished slurry on top of the concrete finish; (b) the
              contraction joints placed in the concrete by the Defendant are of
              very poor quality and are misplaced; (c) the Defendant has
              improperly divided the concrete slab into long rectangles instead
              of squares with contraction joints no further apart than 20 feet
              as required by the Building Code Requirements for Structural
              Concrete which will result in additional cracks in the concrete
              slab; (d) the Defendant failed to place expansion material
              between the concrete slab and the wall of the Plaintiffs’ home;
              (e) an existing railroad tie which is part of the Plaintiffs’ lawn
              edging was improperly used by the Defendant as an end form
              for the concrete slab; (f) the Defendant has improperly placed
              the concrete slab directly on top soil instead of upon a proper
              uniform stone base resulting in the concrete slab settling and
              cracking due to compression of the top soil; (g) there exist great
              variations in slab thickness. In some areas the concrete slab is
              4 inches thick and in other areas the slab is only 2 inches thick
              which has produced weak areas and strong areas all over the
              surface area of the concrete slab; (h) the Defendant has
              improperly installed the welded wire fabric and rebar
              reinforcement in the concrete slab. The welded wire fabric and
              rebar were not placed on stakes to hold it in place when the slab
              was poured, but was allowed to lie directly on the ground. The
              result is that the welded wire fabric and rebar are totally
              ineffective to reinforce the integrity of the concrete slab in that
              it is not properly imbedded into the concrete slab, and; (i) the



                                              -2-
               welded wire fabric is not overlapped which will result in cracks
               developing in the locations where it was not overlapped.

               Based on the foregoing allegations, Plaintiffs claimed the driveway was not
completed in a workmanlike manner and was defectively installed in such a way that
Plaintiffs will have no choice but to have the driveway completely removed and replaced.
Plaintiffs explained that they paid Defendant $10,000 of the original $15,000 contract price,
and Defendant thereafter improperly filed a lien against Plaintiffs’ property for the balance
it claimed they owed. Plaintiffs sought damages in the amount of $55,000, as well as
removal of the lien.

             Defendant answered the complaint and generally denied any liability to
Plaintiffs. Defendant denied that the driveway was defectively installed. According to
Defendant’s answer:

                       The defendant . . . defend[s] against this action on the
               basis of unclean hands and/or equitable estoppel in that the
               plaintiffs refused to enter into a written contract and at all times
               were intimately involved in the entire process of the driveway’s
               installation and the plaintiffs made various decisions against the
               sound advice of the defendant and insisted the defendant
               perform according to their demands and requests and
               furthermore, the plaintiffs voiced no complaints concerning the
               driveway or the quality of workmanship until the defendant
               requested payment on the outstanding bill.

Defendant requested that the complaint be dismissed and, in a counterclaim 1 , requested that
it be awarded the remaining balance owed on the contract price.

                This case was tried in August 2009, with the first witness being plaintiff Earl
Faulkner (“Faulkner”). Faulkner decided to use Tom Emmett Construction Company to
build the driveway after looking through the yellow pages. He first met Tom Emmett
(“Emmett”) in November of 2006. Faulkner told Emmett that he wanted a four-inch
driveway on a gravel base with rebar and wire mesh. Emmett’s initial estimate was $18,000,
but it later was reduced to $15,000. They later changed the size of the new driveway to make



       1
        When Plaintiffs filed their complaint in the Knox County Chancery Court, they already had been
sued by Defendant in the Knox County General Sessions Court. These lawsuits were consolidated and
Defendant’s sessions court lawsuit was treated as a counterclaim in Chancery Court.

                                                 -3-
it closer to the house, but Faulkner stated that during this entire process, he never agreed to
an increase in the $15,000 contract price.

               Faulkner testified that while the driveway was being constructed, he observed
several things that he thought were being done improperly. According to Faulkner, the wire
mesh was placed under the rebar, but was supposed to be on top of the rebar. In various
places, the rebar improperly was placed on the ground instead of being put on chairs.
Faulkner allegedly voiced his concerns to Emmett, but nothing was done to correct these
problems. Faulkner stated that gravel never was brought to the site or used in the driveway
before the concrete was poured. The concrete was poured up to the house and no expansion
joints were used. Faulkner also testified that the surface area of the concrete was not smooth
and in some places, the concrete was only 2½ inches thick, as opposed to the agreed-upon
4 inches. Faulkner paid Defendant $10,000 and refused to pay the balance due to the alleged
poor quality of the driveway. Faulkner denied ever agreeing to an increase in the amount of
the original agreement from $15,000 to $18,000 due to the size of the driveway increasing.
Faulkner described the overall general appearance of the driveway as “horrible” and stated
that the whole driveway needed to be replaced. Approximately one month after the driveway
was completed, Faulkner filed a complaint against Defendant with the contractor’s board in
Nashville.

               Plaintiffs called Paul David Tucker (“Tucker”) as an expert witness.2 Tucker
is a professional engineer with a bachelor’s degree in engineering and a master’s degree in
structural engineering from the University of Tennessee. Tucker is licensed as a professional
engineer with the State of Tennessee and numerous other states. Tucker operates and owns
a company called Professional Engineering and Inspection Services. Tucker has inspected
many concrete projects. Tucker testified that Plaintiffs called him and requested that he
inspect their driveway. Tucker did not know Plaintiffs before their request. During his
inspection, Tucker talked to Plaintiffs and relied on information they provided. Tucker stated
his opinion that the driveway as constructed by Defendant does not conform to the
recognized standard of care for the construction of a reinforced concrete driveway.

              Tucker testified to what he considered problems with the driveway as
constructed by Defendant. According to Tucker, the driveway was poured over organic
material such as leaves and this eventually could cause cracks. In turn, these cracks could
lead to further problems because water will permeate then freeze/thaw, etc., causing the


        2
           Defendant objected to Tucker’s qualifications to testify as an expert in this case. After Defendant
was given the opportunity to voir dire the witness, the Trial Court determined that Tucker was qualified to
testify as an expert. Because Tucker’s qualifications as an expert are not an issue on appeal, we have omitted
the voir dire testimony.

                                                     -4-
cracks to widen. Tucker added that the driveway was not properly compacted and there were
footprints in the concrete. Tucker also testified that the wire mesh was placed on the ground
and would not provide proper reinforcement. To be properly installed, the reinforcement
should be in the top one-third of the concrete. Similarly, the rebar did not have anything
supporting it and was placed on the sub-base. Control joints were not properly placed. The
driveway had a very poor finish and was discolored. The thickness of the concrete varied
from 2½ inches to 4 inches, resulting in the driveway being stronger in some areas and
weaker in others.

               According to Tucker, all of the various problems would reduce the overall
useful life of the driveway. Because there were so many problems with the driveway,
including structural problems, Tucker concluded that the driveway constructed by Defendant
would have to be completely removed and replaced. Tucker compiled six estimates from
different companies with respect to how much it would cost to completely remove and
replace the driveway. The average of these estimates was $30,000.

              On cross-examination, Tucker admitted that most of the problems with the
driveway will not have “much effect on the actual use of the driveway,” but over time the
problems could lead to more and perhaps larger cracks in the concrete. Tucker added that
the problems will cause the driveway to degrade faster than a driveway that was built
correctly. Tucker stated that he would not recommend the use of rebar with a four inch slab
of concrete. Since Plaintiffs wanted a four inch slab of concrete, the use of rebar would
cause the driveway not to meet code. In other words, even if the driveway had been built
exactly as Plaintiffs wanted, there still would have been problems. According to Tucker, a
concrete slab needs to be six inches deep before rebar can properly be used. Tucker’s
estimated cost to replace the driveway would decrease by $3,234 if no rebar was used.

              The next witness was Emmett. At the time of trial, Emmett was seventy-nine
years old and had been in the concrete business since 1946. Emmett is licensed by the State
of Tennessee as a concrete contractor and has been so licensed for the past thirty years.

              Emmett and his son, Tom Emmett III, met with the Faulkners to give them an
estimate on a new driveway. The original estimate was for $18,000. Eventually a second
estimate was prepared. With this second estimate, there was to be a grass strip between
where the current driveway was located and the expanded new section of driveway. Faulkner
wanted a four inch thick driveway, wire mesh, and for the old driveway to be broken up and
used to build up the new driveway so it would be more level. The second estimate was for
$15,000.




                                             -5-
               According to Emmett, Faulkner began making changes almost immediately.
Instead of using the old driveway as a base, Faulkner wanted it hauled off and gravel used.
Faulkner also stated that he wanted rebar to be used in the driveway, which was not part of
the original agreement. Eventually, Faulkner decided he wanted a bigger driveway so he
could park an RV in the driveway. Faulkner enlarged the size of the driveway by eliminating
the grass strip. Emmett told Faulkner that these additions would cost an additional $3,000.
It was Emmett’s understanding that Faulkner agreed to the new contract amount of $18,000.

              Emmett stated that there was at least four inches of base on the driveway. As
for the expanded section of the new driveway, no gravel base was needed although they did
remove some of the topsoil. Emmett stated that Faulkner was aware of everything that was
being done, and at times Faulkner even sat outside in a lawn chair watching them. Faulkner
never complained about Defendant not using a gravel base for the expanded section of the
driveway. The only complaints he ever made were about a tree and about a gate not being
put back timely.

                When the driveway was completed, Emmett gave Faulkner a bill for the
remaining $8,000 that was owed and Faulkner stated that he would pay the bill in ten days.
Emmett testified that he has poured concrete directly on the ground in the past and, in his
opinion, it is more likely for there to be trouble with water accumulating if gravel is used as
a base. The wire mesh was put down and the rebar was placed on top of the steel. Emmett
stated that is the way Faulkner wanted it done and “that’s the way it was done.” Emmett
testified that Plaintiffs’ driveway was constructed in the same manner that driveways are
constructed by other contractors. Emmett acknowledged that an expansion joint was not used
between the driveway and the house, but he stated that is the way Faulkner wanted it
constructed. Emmett told Faulkner that rebar was not necessary in this driveway, but
Faulkner insisted that rebar be used, so it was.

               Emmett stated his opinion that nothing was done wrong when constructing this
driveway. After being qualified to testify as an expert, based primarily on his working with
concrete for the past sixty years, Emmett testified that the quality of the work on Plaintiffs’
driveway did not fall below the applicable standard of care.

               Roy Braden (“Braden”) was called as a witness by Defendant. Braden is a
building official with Knox County Code Administration and Inspection. Braden has worked
in this position for the past eighteen years. Knox County currently utilizes the 2006
International Code Counsel code. Prior to that, Knox County used the 1999 standard
building code. These codes address residential driveways only in one place and that involves
vapor barriers, which is not at issue in this case. According to Braden, Knox County has not



                                              -6-
adopted or passed any codes addressing residential driveways. Knox County does not inspect
residential driveways.

               The final witness was Mr. Emmett’s son, Tom Emmett III (“Son”). Son
worked on the driveway and was present when the agreement was made to construct the
driveway. After the original agreement was reached, Plaintiffs changed the specifications
and added a portion to the driveway. Son stated that his father would stop by the work site
every day while the driveway was being constructed. Son was the primary supervisor on
Plaintiffs’ driveway. Pieces from the old driveway were used as a base for that portion of
the driveway where the old driveway was located. The new driveway was bigger than the
original driveway, and there was no base used for the part of the driveway that was new.
With respect to the expanded portion of the driveway, concrete was poured directly onto the
topsoil.

             Following trial, the Trial Court entered a Memorandum Opinion and Order
finding and holding, in relevant part, as follows:

                      In November 2006, the Plaintiffs met with the principal
              of Defendant Company regarding the construction of a concrete
              replacement driveway for their home. The Plaintiffs specified
              that they wanted a four (4) inch thick driveway reinforced with
              rebar and wire mesh. The Defendant estimated that he could
              complete the job for $18,000.00, but after negotiations and a
              change in the original design specs, the price was lowered to
              $15,000.00.

                      Early on in the construction process, the Plaintiff testified
              that he believed that the installation of the wire mesh and rebar
              was incorrect, and thereupon the Plaintiff Mr. Faulkner began to
              extensively document the construction of the driveway with
              photography at every stage of the construction. Many of these
              photographs were introduced at trial. Although the Plaintiff
              testified that he had concerns about the manner in which the
              driveway was being poured, he did not raise them with the
              Defendant until midway through the pouring of the second part
              of the driveway. Ultimately, the Plaintiffs allowed the
              Defendant to complete the driveway, and they refused final
              payment because they were dissatisfied with the manner in
              which the job had been done.



                                               -7-
                       The Plaintiffs immediately contacted a professional
                engineer, Paul Tucker, . . . and asked him to inspect the
                driveway and render an opinion. . . . [Mr. Tucker3 testified] that
                the manner of construction was faulty in several respects,
                including inconsistent concrete thickness, improperly placed
                expansion joints, and improperly installed wire mesh and rebar
                within the driveway. Mr. Tucker stated that the manner in
                which the driveway was constructed did not meet the relevant
                standard of care for the construction of reinforced concrete
                driveways, citing design standards set forth in manuals issued by
                the American Concrete Institute. Mr. Tucker opined that the
                methods utilized in the construction of the driveway would
                shorten the driveway’s usable life, but gave no estimate
                regarding how much that usable life would be shortened.

                        Mr. Tucker went on to testify . . . that the driveway could
                not be repaired, but would have to be removed and replaced in
                its entirety, at a cost which Mr. Tucker estimated at
                approximately $30,000.00. The Court notes that although the
                Plaintiffs produced an exhaustive collection of photographs of
                the driveway as constructed, the only evidence produced that the
                driveway as completed was unsatisfactory was a single
                photograph showing the light imprint of a boot in the concrete,
                a photograph showing a slight difference in color between one
                pouring and another pouring in the driveway, photographs
                showing some rough surfaces on the driveway, and Mr.
                Tucker’s testimony about the potential diminution in the useful
                life of the driveway which might be occasioned by the manner
                in which the rebar and mesh were installed.

                       The Defendant produced Mr. Roy Braden, the building
                inspector for Knox County Government, who testified that Knox
                County had not adopted the reinforced concrete codes relied
                upon by Mr. Tucker. Mr. Braden also testified that Knox
                County had no relevant codes governing standards for the
                construction of concrete driveways, and testified further that
                Knox County does not require the issuance of building permits


       3
           The Trial Court noted that on several occasions Defendant objected to Mr. Tucker’s competency
to testify as an expert in reinforced concrete. These objections were overruled.

                                                  -8-
for the construction of driveways nor inspect residential
driveways for governmental approval. Finally, the defense
produced the testimony of Mr. Tom Emmett . . . who testified
regarding his long experience in the concrete construction
business. Mr. Emmett testified that the driveway was built in
the manner in which he has always constructed them, and
testified that in his opinion he met the standard of care. . . .

[G]iven that Knox County has not adopted the American
Concrete Institute rules and regulations for driveways relied
upon by Mr. Tucker in opining with regard to the standard
required of reinforced concrete contractors, and given the fact
that Knox County has chosen not to regulate, in any fashion, the
construction of concrete driveways within its jurisdiction, the
Court questions whether Mr. Tucker’s testimony is sufficient to
establish a standard of care for concrete driveway construction
in Knox County, if in fact any such standard of care actually
exists.

        In any event, the Court believes that the Plaintiffs’ claims
must fail here because the Court finds that the measure of
damages insisted upon by the Plaintiffs is not reasonable. The
Plaintiffs rely for their measure of damages upon the case of
GSB Contractors, Inc. v. Hess, 179 S.W.3d 535 (Tenn. App.
2005). In that case, the Court of Appeals held that “[a]s a
general rule, the measure of damages for defects and omissions
in the performance of a construction contract is the reasonable
cost of the required repairs.” (Emphasis added) Plaintiffs’
counsel properly points out that although the diminution of
value to the residence occasioned by improper construction is an
acceptable alternative measure of damages, it is incumbent upon
the Defendant to present evidence that would allow the Court to
award damages based upon such alleged diminution. In this
case, neither party produced any evidence whatsoever regarding
the real or potential diminution in value of the Plaintiffs’
residence occasioned by the allegedly negligent construction of
the driveway. Upon the direct questioning of the Court,
Plaintiffs’ counsel stated that it was “all or nothing;” that the
only evidence of damages was the cost to [replace] the
driveway, that the driveway could not be repaired but only

                                -9-
replaced, and that the cost of replacing the driveway would be
approximately $30,000.00.

        The Court notes that throughout its decision in GSB
Contractors, the Court of Appeals stressed that the measure of
damages in a case such as this would be the reasonable cost of
repairs. Again the Court would note that while the Plaintiffs
exhaustively documented the construction of the driveway, other
than a couple of photographs detailing the aesthetic issues with
the driveway (e.g., color variations, rough surfaces and a boot
print in the concrete), they produced absolutely no evidence,
other than the speculative opinions of Mr. Tucker, that the
driveway was unusable or defective. The Plaintiffs did not
testify that they were not using the driveway, and in fact
collective Exhibit 4 includes a photograph of a large utility van
parked in the driveway. Based on the evidence presented, the
Court does not find that having produced a driveway in daily use
by the Plaintiffs, the Defendant should now be required to pay
twice the original contract price to the Plaintiffs to correct
problems that do not now exist with the driveway and are based
only and entirely upon Mr. Tucker’s speculation regarding what
might happen to the driveway at some point in the future. This
Court does not believe that the damages requested by the
Plaintiffs are a reasonable measure of the cost of repairs, and as
the Plaintiffs have provided no other measure upon which the
Court may base its judgment, it follows that the [Plaintiffs have]
failed to carry [their] burden of proof with regard to the question
of damages by a preponderance of the evidence with regard to
the construction of the driveway as a whole.

       However, a question remains regarding an extension of
the original driveway, which was considered a modification of
the original contract and for which the Plaintiffs were charged
an additional $3,000.00. It was uncontested that this extension
was poured upon unprepared soil in a manner that even the
Defendants agreed was not proper. The Court shall order that
the Plaintiffs will pay to the Defendant the remaining $5,000.00
originally agreed upon by the parties and shall be relieved of any
responsibility to pay the additional $3,000.00 which the
Defendant charged for the apparently defective extension. Upon

                               -10-
              payment by the Plaintiffs of the remaining $5,000.00 originally
              agreed to in the contract, the Defendant will immediately release
              any liens which remain upon the Plaintiffs’ property for the
              securing of the contract price. . . . (footnote added; emphasis in
              the original)

              Plaintiffs appeal claiming the Trial Court erred in the amount of damages it
awarded and that they are entitled to the full replacement cost. Plaintiffs further claim that
the Trial Court erred when it required them to pay Defendant the remaining $5,000 owed on
the original contract amount, and when it essentially awarded them only $3,000 for the
defective driveway extension.

                                         Discussion

             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.
              Chan. 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).



                                             -11-
              As we read the Trial Court’s judgment, Plaintiffs’ claim for $30,000 to
completely remove and replace the driveway failed for two reasons. First, except for the
extension, Plaintiffs failed to prove that the driveway was defectively installed. Second, even
if there were some other problems with the driveway, the problems were not of sufficient
magnitude such that it would be reasonable to require removal and replacement of the entire
driveway. In its memorandum opinion, the Trial Court expressly stated that:

              the only evidence produced that the driveway as completed was
              unsatisfactory was a single photograph showing the light imprint
              of a boot in the concrete, a photograph showing a slight
              difference in color between one pouring and another pouring in
              the driveway, photographs showing some rough surfaces on the
              driveway, and Mr. Tucker’s testimony about the potential
              diminution in the useful life of the driveway which might be
              occasioned by the manner in which the rebar and mesh were
              installed.

The Trial Court later noted that the driveway was being used by Plaintiffs and that the only
evidence presented that the driveway was not properly constructed was “speculative”
opinions by Tucker as to a reduced life expectancy.

                In all fairness to the parties, there was evidence presented to support the
respective positions of both sides. It is the Trial Court’s function to resolve such a conflict.
That is exactly what it did. We will not disturb the Trial Court’s factual findings unless the
evidence preponderates against those findings. We conclude that the evidence does not
preponderate against the Trial Court’s findings that Plaintiffs failed to prove that the
driveway as a whole was defectively constructed and that it would not be reasonable for
Plaintiffs to remove and replace the entire driveway at Defendant’s expense. The judgment
of the Trial Court in this regard is affirmed.

               The next issue surrounds the Trial Court’s requirement that Plaintiffs pay the
remainder of the original $15,000 contract price, but that they should be relieved from paying
the additional $3,000 for the concrete extension that was improperly poured. 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):

              “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

                                              -12-
              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 agree with the Trial Court that there was a modification of the original
$15,000 contract which added a driveway extension and increased the contract amount to
$18,000. After this modification, there was one contract in effect with an $18,000 contract
price. We conclude that Defendant’s admitted failure to use a gravel base prior to pouring
the driveway extension constitutes a material breach of the contract, thereby prohibiting
Defendant from challenging Plaintiffs’ later material breach of failing to pay the balance of
the contract price. Accordingly, we modify the Trial Court’s judgment and hold that
Plaintiffs are not required to pay any of the $8,000 outstanding balance on the contract and
Defendant must remove any lien on Plaintiffs’ property. As modified, the judgment of the
Trial Court is affirmed. Any remaining issues are pretermitted.

                                        Conclusion

              The judgment of the Trial Court is affirmed as modified. This cause is
remanded to the Chancery Court for Knox County solely for collection of the costs below.
Costs on appeal are taxed to one-half to the Appellants Earl and Faye Faulkner, and their
surety, and one-half to the Appellee, Tom Emmett Construction Company.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                            -13-
