                                                                                            05/14/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs March 4, 2020

  TININ CONTRACTING COMPANY, INC. ET AL. v. ENVIROWORKS,
                         INC.

                   Appeal from the Circuit Court for Wayne County
                      No. 2011-CV-4520 Russell Parkes, Judge
                      ___________________________________

                            No. M2019-00763-COA-R3-CV
                        ___________________________________


This is a case involving the breach of an oral contract to provide excavation work and
materials for an airport construction project in Bolivar, Tennessee. The trial court
awarded $128,058.09 in favor of the subcontractor against the project’s general
contractor. On appeal, the general contractor argued that the oral contract existing
between the parties included the subcontractor sharing in certain surveying and testing
costs incurred on its scope of work on the project, that it was entitled to a credit for these
costs, and that, ultimately, the trial court miscalculated its award of damages. We affirm
the trial court’s finding that there was no agreement existing between the parties for the
subcontractor to incur any surveying or testing costs and that, as a result, the general
contractor was not entitled to a credit for these expenses against the balance of the
moneys it owed the subcontractor. However, because the order contains insufficient
findings of fact and conclusions of law as to why the trial court included an additional
$5,593.40 in the final judgment beyond the damages sought in the complaint, we vacate
that portion of the final judgment and remand the case to the trial court with instructions
to reduce the judgment against the general contractor from $128,058.09 to $122,464.69.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                      Part, Vacated in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and, JOHN W. MCCLARTY J., joined.

Ryan Durham, Lawrenceburg, Tennessee, for the appellant, Enviroworks, Inc.

James Y Ross, Sr., Waynesboro, Tennessee, for the appellees, Rocky Point Rock Quarry,
Inc. and Tinin Contracting Company, Inc.
                                         OPINION

                       BACKGROUND AND PROCEDURAL HISTORY

       In 2008, the City of Bolivar and Hardeman County began accepting bids for a
construction project at the Bolivar-Hardeman County Airport (the “Bolivar Project”).
Travis French, owner and operator of Enviroworks, Inc. (“Defendant”), and Tommy
Tinin, owner and operator of Tinin Contracting Company, Inc. and Rocky Point Rock
Quarry, Inc. (together, “Plaintiff”), became aware of the Bolivar Project and began to
discuss the merits of submitting a bid. Contemporaneously therewith, Messrs. French
and Tinin agreed that the Defendant, as the general contractor, would submit a bid for the
Bolivar Project. Additionally, pursuant to an oral contract between Messrs. French and
Tinin, it was agreed that Plaintiff was to perform dirt work, including grading and
excavation, and to supply rock for a specific portion of the Bolivar Project. Defendant
agreed to pay Plaintiff based on a per-unit cost. Mr. French used Mr. Tinin’s per-unit
quotes, to which he added his margin of profit, in order to draft and submit his final bid
on the project. The contract in the amount of $940,787.80 was ultimately awarded to
Defendant.

        Throughout the course of the Bolivar Project, Plaintiff provided $465,792.15
worth of materials and services to Defendant. Defendant, however, paid Plaintiff only
$303,454.42. On June 1, 2011, Plaintiff filed a complaint in the Wayne County Circuit
Court (the “trial court”), alleging that Defendant refused to pay Plaintiff the remaining
balance owed of $162,146.73. The case was tried for three days, and, on April 8, 2019,
the trial court entered its order and judgment in which the trial court found that Plaintiff
satisfied all of its contractual obligations to Defendant. Additionally, the trial court found
that Defendant breached the oral contract and awarded Plaintiff $128,058.09 against
Defendant. Defendant timely filed this appeal.

                                     ISSUE PRESENTED

       Defendant raises one issue on appeal, reproduced as follows: Whether the trial
court erred in its initial calculation of its final judgment award as well as failing to credit
$16,458.69 toward the final judgment award?

                                  STANDARD OF REVIEW

       In non-jury cases, appellate courts review the trial court’s factual findings de novo
upon the record, accompanied by a presumption of the correctness of the findings, unless
the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Armbrister
v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review the trial court’s resolution
of questions of law de novo with no presumption of correctness. See Armbrister, 414
S.W.3d at 692.
                                            -2-
                                       DISCUSSION

       As a preliminary matter, we first address Defendant’s argument that the trial court
erred in failing to deduct $16,458.69 in surveying and testing expenses from the final
judgment. The trial court made the following findings of fact with regard to what the
parties agreed to in their oral contract:

       The Court finds that after receiving all of the testimony from various
       witnesses, including French and Tinin, the parties did in fact enter into an
       oral contract . . . The Court further finds that as a part of said bid for the
       Bolivar Project, [Defendant] and [Plaintiff], through their principals,
       French and Tinin, agreed that [Plaintiff] would provide certain dirt work
       and materials necessary for the Bolivar Project. The Court finds that Tinin
       and French, on behalf of their corporate entities, agreed that Tinin’s entities
       would provide certain services and/or materials at a per unit cost[.]

Later in its order the trial court specifically addressed whether or not the Defendant’s
claimed credit against the Plaintiff for survey and/or compaction testing was included in
the parties’ oral contract, as follows:

       The Defendant claims credit of $16,458.69 purportedly for survey and/or
       compaction testing attributable to the work performed by [Plaintiff]. The
       Court finds that the contract existing between the parties in this action did
       not include [Plaintiff] sharing in survey costs, compaction studies and the
       like. The Court finds that the contract existing between the parties was for
       specific unit costs for grading, dirt work, and the providing of certain
       materials and did not encompass or include the Plaintiffs being “charged
       back” for survey and/or testing.

After our review of the record, giving deference to the trial court’s evaluation of the
testimony—in particular the testimony of the parties as to the terms of their oral
contract—we agree with the trial court’s finding that the preponderance of the evidence
supports the fact that the parties’ contract did not obligate the Plaintiff to pay for survey
or compact testing expenses. This is particularly supported by the fact that both parties
agreed that the contract, other than an agreed cost for mobilization, was based on a per
unit cost.

       Having determined that the trial court did not err in finding that the oral contract
existing between Plaintiff and Defendant did not require Plaintiff to share in the
surveying and testing costs, we next address the final judgment amount ultimately
awarded by the trial court. In reaching the $128,058.09 judgment awarded against
Defendant, the trial court found that Plaintiff had supplied Defendant services and
                                          -3-
materials totaling $465,792.15 and that Defendant had paid Plaintiff $303,454.42, leaving
a balance owed of $162,146.73. Additionally, the trial court found that, on December 9,
2009, Defendant had made an additional payment to Plaintiff in the amount $39,682.04.
While Mr. Tinin testified that he believed the payment was for work that Plaintiff and
Defendant performed together on an unrelated project, the trial court ultimately found
that Defendant made the payment to Plaintiff as part of the Bolivar Project and was thus
entitled to a credit for this payment. On appeal, Defendant does not dispute these
findings. Rather, Defendant argues that the credit for the $39,682.04 should have
reduced the balance owed of $162,146.73 to $122,464.69 and that the trial court
miscalculated the final judgment in the amount of $5,593.40. Confusingly, Plaintiff
states in its brief on appeal that “it appears the Trial Court did make a mathematical
miscalculation[,]” yet also states that “the Trial Court did not err in its calculation of
damages[.]” Plaintiff does, however, attempt to explain where the additional $5,593.40
came from:

       The difference between the judgment amount of $128,058.09 and
       $122,464.69 is $5,593.40. In Trial Exhibit 30, filed January 24, 2019,
       which is a recapitulation of expenses prepared and claimed by [Defendant]
       against [Plaintiff], it reflects the total amount of cost unilaterally deducted
       by [Defendant] from payment made to [Plaintiff], prior to the filing of the
       lawsuit, was $5,593.40. Clearly, the Trial Court did not err in its
       calculation of damages, but merely added the improperly deducted
       surveying and testing costs back into the amount of damages awarded to
       [Plaintiff]. In other words, $122,464.69 plus $5,593.40 equals the
       judgment amount of $128,058.09.

        While this is a plausible explanation, we do not know why or on what basis the
trial court included this additional amount of $5,593.40 in the final judgment because the
trial court gives no additional explanation in the order as to why it is included.

        Moreover, since the recovery of the $5,593.40 exceeds the amount pled by the
Plaintiff1 in its complaint, and since the trial court did not specifically address this
additional sum in its detailed findings and conclusion, we are unable to review the legal
basis of the trial court’s reasoning as to why it awarded this additional amount of
damages. Therefore, we conclude that the inclusion of the additional $5,593.40 in the
final judgment was in error. Accordingly, we vacate that portion of the judgment and
remand the case to the trial court with instructions to reduce the final judgment amount to
$122,464.69. See JPMorgan Chase Bank v. Franklin Nat’l Bank, No. M2005-02088-
       1
          Plaintiff, in its complaint, sought damages against Defendant “in the amount of not less than
One Hundred Sixty-Two Thousand One Hundred Forty-Six and 73/100 ($162,146.73)”. The total
amount sought by Plaintiff in its complaint and found due and owing by the trial court of $162,146.73,
less the credit allowed by the trial court for a prior payment of $39,682.04, equals a balance owed of
$122,464.69.
                                                 -4-
COA-R3-CV, 2007 WL 2316450, at *8 (Tenn. Ct. App. Aug. 13, 2007).

                                      CONCLUSION

        Having determined that the trial court erred by including the $5,593.40 amount in
its final judgment, we vacate that portion of the final judgment and remand the case to the
trial court with instructions to reduce the judgment against Defendant from $128,058.09
to $122,464.69. The trial court is affirmed in all other respects, and the case is remanded
for all further proceedings as may be necessary and consistent with this opinion.



                                                 _________________________________
                                                 ARNOLD B. GOLDIN, JUDGE




                                           -5-
