                           IN THE COURT OF APPEALS OF TENNESSEE
                                WESTERN SECTION AT JACKSON

MILAM CONSTRUCTION, CO., INC.,                    )       From the Chancery Court
                                                  )       for Henderson County, Tennessee
       Plaintiff/Appellee,                        )       The Honorable Joe C. Morris, Chancellor
vs.                                               )
                                                  )       Henderson Chancery No. 8936
MICHAEL B. JOHNSON, SR., and                      )       Appeal No. 02A01-9608-CH-00185
Wife, DAPHNE S. JOHNSON,                          )
                                                  )       AFFIRMED
        Defendants/Appellants.                    )

               FILED                              )
                                                  )
                                                  )
                                                          Frankie K. Stanfill
                                                          Lexington, Tennessee
                                                          Attorney for Defendants/Appellants
                                                  )
              September 18, 1997
                                                  )       Bill R. Martin
                                                  )       Lexington, Tennessee
              Cecil Crowson, Jr.
               Appellate C ourt Clerk
                                                  )       Attorney for Plaintiff/Appellee


                                            RULE 10 ORDER



       This matter appears appropriate for consideration pursuant to Rule 10(a) of the Rules of the

Court of Appeals of Tennessee.1

       In this case, Appellant Michael B. Johnson (“Johnson”)2 and Appellee Milam Construction

Company (“Milam Construction”) entered into a written contract for the construction of a home, for a

contract price of $75,500. Johnson deposited $500 into escrow. During construction, Johnson

approached Jerry Milam (“Milam”), President of Milam Construction Company, with a request for

additional work, which Milam estimated could be done for $6,000. Milam and Johnson orally agreed

for Milam Construction to do this additional work.            Subsequently, Johnson requested Milam

Construction to perform other additional work. The cost of all of the additional work totaled

$16,347.70.

        At the time of the closing on the house, $40,000 had been paid on the contract. Milam

Construction was not represented at the closing. Johnson then sent Milam Construction a check for



       1
         Rule 10 (Rules of the Court of Appeals of Tennessee).
(a) Affirmance Without Opinion. The Court, with the concurrence of all judges participating in
the case, may affirm the action of the trial court by order without rendering a formal opinion when
an opinion would have no precedential value and one or more of the following circumstances exist
and are dispositive of the appeal:
        (1) the Court concurs in the facts as found or as found by necessary implication by the trial
court.
        (2) there is material evidence to support the verdict of the jury.
        (3) no reversible error of law appears.
        Such cases may be affirmed as follows: “Affirmed in accordance with Court of Appeals
Rule 10(a).”
        2
            Johnson’s wife, Daphne Johnson, is also an appellant in this case.
$35,000. Milam Construction refused the $35,000 check because it did not include the charges for the

additional work; Milam Construction did not want acceptance of the check to be deemed an acceptance

of it as complete and final payment. Johnson later paid Milam Construction $23,394.52, leaving an

unpaid balance, according to Milam Construction, of $28,453.18.

        Milam Construction sued for quantum meruit, and Johnson filed a counterclaim, alleging

damages arising from numerous construction defects. At the bench trial, Johnson presented evidence

that these defects would cost $29,700 to remedy. Milam Construction presented evidence that it had

corrected the problems of which Johnson complained. Milam also testified that, while the construction

was in progress, Johnson had inspected the work almost daily. Milam Construction asserted that

Johnson did not complain about the quality of the construction until he was given the bill for the extra

work performed. Milam Construction introduced into evidence an itemized list of the additional

charges over and above the contract price. After the trial, the trial court entered a cursory order

awarding Milam Construction a judgment for the sum of $28,453.18, on the basis of quantum meruit.

Johnson’s counterclaim for the cost of correcting the alleged defects was dismissed. Johnson now

appeals this order.

        On appeal, Johnson argues that the trial court erred by awarding Milam Construction quantum

meruit damages without an off-set for correcting the alleged construction defects.

        Our review of this case is de novo upon the record with a presumption of correctness of the

findings of fact by the trial court. Absent error of law, the trial court’s decision will be affirmed, unless

the evidence preponderates against the factual findings. Tenn. R. App. P. 13(d).

        From our examination of the record, we concur in the facts as found by necessary implication

by the trial court, and we find no reversible error of law.

        Therefore, the decision of the trial court is affirmed in accordance with Court of Appeals Rule

10(a). Costs are assessed against the Appellants, for which execution may issue if necessary.




                                                  HOLLY KIRBY LILLARD, J.


CONCUR:



W. FRANK CRAWFORD, P.J., W.S.



ALAN E. HIGHERS, J.

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