                                                                                       04/09/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs March 1, 2019

                 ROSE MARY THOMPSON V. ROBERT BOYD

                  Appeal from the Circuit Court for Knox County
                     No. 1-378-17     Kristi M. Davis, Judge


                            No. E2018-01098-COA-R3-CV



A homeowner and a contractor entered into a contract requiring the contractor to repair
damage to the homeowner’s house caused by a kitchen fire. The repairs to be performed
were those covered by the homeowner’s insurance policy as outlined in a detailed
estimate of repair work. After the contractor abandoned the project, the homeowner
hired another contractor to complete the work and sued the original contractor for breach
of contract. We affirm the decision of the trial court to the extent of the court’s
determination that the contractor breached the contract by his undue delay and poor
workmanship. We have concluded, however, that the trial court’s decision fails to
adequately explain the award of damages or to dispose of the contractor’s counterclaim.
Therefore, we vacate the damages award and remand for more specific findings regarding
the basis for the damages award and a disposition of the counterclaim.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and JOHN W. MCCLARTY, J., joined.

Robert Boyd, Knoxville, Tennessee, pro se.

Barbara W. Clark, Knoxville, Tennessee, for the appellee, Rose Mary Thompson.
                                    MEMORANDUM OPINION1

                             FACTUAL AND PROCEDURAL BACKGROUND

       A kitchen fire on June 5, 2015, caused damage to Rose Mary Thompson’s home
on Spring Place Circle in Knoxville. Ms. Thompson’s insurance company determined
that she was entitled to $80,063.552 for the repairs. On October 27, 2015, Ms. Thompson
entered into a contract with Robert Boyd to perform the repairs.

       On October 13, 2017, Ms. Thompson filed a complaint for breach of contract
against Mr. Boyd. The complaint includes the following pertinent allegations:

          8. The Defendant commenced work shortly after the contract was signed
          by the Plaintiff on October 27, 2015, and received his first payment draft on
          November 18, 2015, in the amount of $40,000.00. The Defendant received
          subsequent payments in the amount of $13,620.30.
          9. Throughout the course of the repair project, the Defendant would fail to
          show up on numerous occasion[s] causing unnecessary delays, and more
          than 50% of the repair work remains unfinished.
          ....
          11. The work the Defendant did perform was substandard, causing the
          Plaintiff to seek the service of other contractors to make corrections to his
          poor quality workmanship.
          ....
          12. The contract for restoration of Plaintiff’s residence required the
          Defendant to restore the residence pursuant to the contract signed by the
          parties on October 27, 2015. The Defendant did not complete work
          pursuant to the contract, in a timely workmanlike manner.
          13. The failure of the Defendant to complete the restoration work
          constitutes a breach of contract.

Mr. Boyd answered the complaint, denying the allegations and stating his version of
events. He also asserted a counterclaim.


1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
2
    This figure includes an actual cash value of $67,232.71 and a replacement cash value of $12,830.84.
                                                    -2-
       According to Mr. Boyd’s counterclaim, the parties had a meeting on June 25,
2017. At that meeting, Ms. Thompson gave Mr. Boyd a deadline of July 31, 2017, to
complete the work, and he told her that he would be focusing on the insurance claims,
and not on any additional projects she wanted to be done. The counterclaim further
alleges:

      12. The Defendant notified Wells Fargo Bank [Ms. Thompson’s mortgage
      company] to set up an inspection and updated the progress of work.
      13. July 5, 2017 the Plaintiff locked the Defendant out of the property 5601
      Springplace Circle Knoxville, TN.
      14. The Plaintiff stated to the Defendant that his service was no longer
      needed.
      15. The Defendant spoke to the Plaintiff about retrieving his tools and
      building materials from her property. Also to set up a time for the Wells
      Fargo Bank inspector.
      16. The Plaintiff refused the Defendant[’s] requests.
      17. The Defendant immediately contacted Well[s] Fargo Bank[ ]
      (mortgage lender) and Capstone ISG [insurance adjuster] to inform them of
      the situation therefore avoiding any confrontation with the Plaintiff.
      18. Wells Fargo Bank informed the Defendant that all funds are [frozen] at
      this time. The Plaintiff and Defendant would have to come up with a
      mutual agreement before the contract can be closed.
      19. Plaintiff refused the Defendant[’s] requests; therefore the Defendant
      was forced to take legal action. . . .

Mr. Boyd asserted that the work was 75% complete when he received his second
payment from the bank and that Ms. Thompson was responsible for change orders and
additional work not included on the insurance repair sheets. He requested the following
relief:

      10. The Plaintiff owes the Defendant $5,000.00.
      11. Defendant has the 3rd draw left to be issue[d] to him for the amount
      [of] $13,612.41 from Wells Fargo Bank. The Defendant would have
      received the full amount if he had completed the remaining work.
      12. Tools, Materials and Supplies Plaintiff refused to return to Defendant
      [in the] amount of $6,700.00.
      13. For actual damages in [the] amount of $25,312.41.
      14. Punitive Damages of $50,000.00.
      15. [Breach] of contract in the amount of $25,500.00.
      16. Defamation of character in [the] amount of $50,500.00.

       The case went to trial on June 11, 2018. The record does not include a transcript
of the hearing, but it does include a statement of the evidence describing the testimony

                                         -3-
presented at trial. The trial court adopted Ms. Thompson’s statement of the evidence as
the “fair, accurate, and complete account of what transpired at trial.” According to the
statement of the evidence, the trial court heard the following:

                          Testimony of Rose Mary Thompson

             The Plaintiff, Rose Mary Thompson, testified that on or about June
      5, 2015, she sustained damage to her home at 5601 Spring Place Circle,
      Knoxville, TN 37924 because of a kitchen fire. The loss was timely
      reported to the Plaintiff’s homeowner’s insurance and Capstone ISG, an
      independent adjusting company, compiled a computer report for repairs to
      be made at a total cost of depreciation of $80,321.12, exclusive of
      depreciation of $19,625.00 and the $2,500.00 deductible. A copy of the
      report was admitted as an exhibit to Plaintiff/Appellee’s testimony.

              The Plaintiff/Appellee entered into a contract with the
      Defendant/Appellant, Robert Boyd, on October 27, 2015, to complete the
      repairs on her home. Numerous delays caused by the Defendant/Appellant
      occurred and in July 2017, the parties’ relationship totally broke down and
      Ms. Thompson told Mr. Boyd to stay away from her residence, and
      solicited the services of another renovation contractor, Mr. Clayton
      Johnson, to finish the job Mr. Boyd started in October 2015.

             Wells Fargo, Plaintiff/Appellee’s Mortgage Company was
      responsible for disbursing the funds to Mr. Boyd after an inspection was
      performed. On April 30, 2016, Wells Fargo performed an inspection of the
      work[ ] performed by Mr. Boyd and found that he had completed 75% of
      the repairs. No other inspections were performed. Much of the work
      performed by Mr. Boyd was not performed in a workmanlike manner.

             For the work performed by Mr. Boyd, he was paid $53,620.30. The
      parties agreed to minor changes during the restoration period which the
      Court considered in the final judgment.

            The testimony was undisputed that Mr. Boyd never completed the
      work he was contracted to perform.

                            Testimony of Clayton Johnson

             Mr. Clayton Johnson, a renovation contractor, inspected the
      unfinished work and provided a report and took numerous photographs
      outlining the deficiencies in the work performed by Mr. Boyd. He testified
      in details of all items outlined in his report made as an Exhibit to his

                                         -4-
       testimony regarding the defective workmanship of Mr. Boyd in making the
       repairs to Ms. Thompson’s home. Mr. Johnson testified that the cost to
       complete the job and correct the defective workmanship is $34,342.00.

                             Testimony of Clifford Foster, Sr.

              Mr. Clifford Foster was called as a witness by the
       Defendant/Appellant. He testified that he was a maintenance person who
       assisted the Defendant/Appellant in moving things out of the way, and did
       some of the painting during the repair project. He testified that several
       bundles of [insulation] was never installed, but stored in the basement. The
       project was started in October 2015, and was still not completed in July of
       2017.

                                Testimony of Robert Boyd

              Mr. Robert Boyd testified to the agreement he had with Ms.
       Thompson to make the repairs for her fire damage. He admitted that the
       contract was signed in October 2015, and as of July 2017, he had not
       completed the project. Mr. Boyd testified that the parties made some
       changes to the repair order as the job progressed. Mr. Boyd’s delay was
       because he moved his family to Georgia and took several months to
       renovate a place in Georgia for his family. Mr. Boyd testified that there
       were several things not completed because of his delay in completing the
       job. In July 2017, Ms. Thompson told him to stay away, that she would
       have someone else to complete the work and fix the items he had repaired
       poorly.

                              Testimony of Montecia Boyd

               The Defendant/Appellant’s wife testified that she was there when
       her husband guttered [sic] Ms. Thompson’s house to make the repairs in
       2015 and that she moved to the State of Georgia in 2016 and her husband
       was in Georgia for several months renovating a home for the family. She
       testified that prior to her moving, Mr. Boyd would work at the Plaintiff’s
       house overnight until early morning.

       After the trial, the court entered an order on June 20, 2018, including the following
relevant findings of fact:

             4. The Defendant commenced work on the residence and because of
       numerous delays on the part of the Defendant, the work was never
       completed.

                                           -5-
                5. On or about July 6, 2017, the Plaintiff terminated the Defendant’s
        services and solicited the services of another renovation and repair service
        [owned] by Clayton Johnson to provide an estimate of the remaining work
        to complete the repairs on Plaintiff’s residence.
                6. Clayton Johnson provided to Plaintiff a detailed estimate and
        report of the remaining work. Further, Mr. Johnson provided testimony at
        trial regarding his report and the Court finds that some of the work
        performed by the Defendant, Robert Boyd, was not performed in a
        workmanlike manner, and the Defendant failed to perform some of the
        repairs.
                7. The Court finds that the Defendant was paid a total of $53,620.30
        for the work he performed.
                8. The estimate provided by Clayton Johnson to complete the
        repairs on Plaintiff’s home, including remediation of work previously done
        by the defendant in an unworkmanlike manner, is $34,342.06. The
        estimate, however, includes the installation of an HVAC system at a cost of
        $5,779.00. Replacement of the HVAC system was not included in the
        estimate provided by Capstone and the Court finds that the estimate
        provided by Clayton Johnson must be reduced by the amount of $5,779.00.
                9. The Court further finds that the parties entered into change order
        agreements for some of the repairs with costs of the change orders to be
        paid by the Plaintiff. The Court finds that the sum of $2,500.00 shall be
        deducted from the Johnson estimate for the change orders.

The trial court awarded Ms. Thompson a judgment against Mr. Boyd in the amount of
$26,063.06 and ordered Mr. Boyd to “retrieve his tools from the Plaintiff’s residence with
arrangement[s] to be coordinated through Plaintiff’s counsel.”

       On appeal, Mr. Boyd raises twelve issues. We consolidate and restate the issues
as follows: (1) Whether the trial court erred in finding that Mr. Boyd breached the
contract with Ms. Thompson; (2) whether the trial court erred in awarding damages to
Ms. Thompson; and (3) whether the trial court erred in failing to award any damages to
Mr. Boyd on his counterclaim.3

3
  We have concluded that Mr. Boyd waived any of the issues not included in this restatement of the
issues. For example, he asserts an issue regarding whether the trial court erred in granting damages to
Ms. Thompson because her actions demonstrated bad faith, yet the argument section of his brief does not
discuss the issue of bad faith. Tennessee Rule of Appellate Procedure 27(a)(7)(A) requires that an
appellant’s argument set forth “the contentions of the appellant with respect to the issues presented, and
the reasons therefor, including the reasons why the contentions require appellate relief, with citations to
the authorities and appropriate references to the record (which may be quoted verbatim) relied on.” When
a party fails to make an argument regarding an issue, we consider that issue waived. Bean v. Bean, 40
S.W.3d 52, 55 (Tenn. Ct. App. 2000).


                                                   -6-
                                           STANDARD OF REVIEW

       With a bench trial, our review is de novo upon the record, accompanied by a
presumption of correctness of the trial court’s findings of fact, unless the preponderance
of the evidence is otherwise. TENN. R. APP. P. 13(d); Gregg v. Estate of Cupit, No.
M2018-00379-COA-R3-CV, 2018 WL 5733289, at *3 (Tenn. Ct. App. Oct. 31, 2018);
Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424-25 (Tenn. Ct.
App. 2005). We review the trial court’s legal conclusions with no presumption of
correctness. Nashville Ford Tractor, 194 S.W.3d at 425. We afford the trial court’s
credibility determinations great deference because the trial court is able to assess the
witnesses’ demeanor as they testify. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999).

                                                   ANALYSIS

        We begin by noting that Mr. Boyd is a pro se litigant, both at trial and on appeal.
This court has applied the following standards when evaluating the claims of pro se
litigants:

          Parties who decide to represent themselves are entitled to fair and equal
          treatment by the courts. The courts should take into account that many pro
          se litigants have no legal training and little familiarity with the judicial
          system. However, the courts must also be mindful of the boundary between
          fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
          Thus, the courts must not excuse pro se litigants from complying with the
          same substantive and procedural rules that represented parties are expected
          to observe.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see
also Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct App. 2003). We allow pro se
litigants some latitude in preparing their briefs and endeavor to “give effect to the
substance, rather than the form or terminology,” of their court filings. Young, 130 S.W.3d
at 63.

       We must also address the state of the appellate record in this case. Although there
was a full hearing before the trial court, there is no transcript of the hearing in the record
on appeal. Rather, the record contains the statement of the evidence set forth above.4

4
    Tennessee Rule of Appellate Procedure 24(c) provides as follows:

          Statement of the Evidence When No Report, Recital, or Transcript Is Available. If
          no stenographic report, substantially verbatim recital or transcript of the evidence or
          proceedings is available, or if the trial court determines, in its discretion, that the cost to
          obtain the stenographic report in a civil case is beyond the financial means of the
                                                      -7-
Thus, we have only a synopsis of what occurred at trial. In accordance with Tenn. R.
App. P. 24, it is the duty of the appellant to prepare the record and to provide “the
appellate court a ‘fair, accurate and complete account’ of what transpired at the trial
level.” Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 713 (Tenn. 2005)
(quoting State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993)). The appellee “shares the
responsibility for ensuring the appellate court has a complete record.” Id. (citing Tenn.
R. App. P. 24(a), (b), (d)). In this case, the trial court found Ms. Thompson’s statement
of the evidence to be a complete and accurate account of what transpired at the trial and
adopted it.5

        I. Breach of contract.

       Implicit in the trial court’s order awarding damages to Ms. Thompson is a finding
that Mr. Boyd breached the contract between the parties. The trial court expressly found
that the work was never completed “because of numerous delays on the part of” Mr.
Boyd and that remediation by Mr. Johnson was required for “work previously done by
the defendant in an unworkmanlike manner.” Mr. Boyd argues that Ms. Thompson was
at fault in locking him out of the house, thereby preventing him from completing his
work. He further asserts that Ms. Thompson was in breach of the contract when she
declined to allow Wells Fargo Mortgage to inspect Mr. Boyd’s work.

     The first party to materially breach a contract “is not entitled to damages
stemming from the other party’s later material breach of the same contract.” McClain v.
Kimbrough Constr. Co., Inc., 806 S.W.2d 194, 199 (Tenn. Ct. App. 1990). The trial

        appellant or that the cost is more expensive than the matters at issue on appeal justify,
        and a statement of the evidence or proceedings is a reasonable alternative to a
        stenographic report, the appellant shall prepare a statement of the evidence or
        proceedings from the best available means, including the appellant’s recollection. The
        statement should convey a fair, accurate and complete account of what transpired with
        respect to those issues that are the bases of appeal. The statement, certified by the
        appellant or the appellant’s counsel as an accurate account of the proceedings, shall be
        filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon
        filing the statement, the appellant shall simultaneously serve notice of the filing on the
        appellee, accompanied by a short and plain declaration of the issues the appellant intends
        to present on appeal. Proof of service shall be filed with the clerk of the trial court with
        the filing of the statement. If the appellee has objections to the statement as filed, the
        appellee shall file objections thereto with the clerk of the trial court within fifteen days
        after service of the declaration and notice of the filing of the statement. Any differences
        regarding the statement shall be settled as set forth in subdivision (e) of this rule.
5
  Tennessee Rule of Appellate Procedure 24(e) states, in pertinent part: “Any differences regarding
whether the record accurately discloses what occurred in the trial court shall be submitted to and settled
by the trial court regardless of whether the record has been transmitted to the appellate court. Absent
extraordinary circumstances, the determination of the trial court is conclusive.”


                                                    -8-
court identified the first material breaches in this case to be Mr. Boyd’s poor
workmanship and delay. See generally Greeter Constr. Co. v. Tice, 11 S.W.3d 907, 910
(Tenn. Ct. App. 1999) (discussing contractor’s delay and inferior workmanship as factors
justifying other party’s termination of contract). The evidence does not preponderate
against the trial court’s finding that much of Mr. Boyd’s work was not performed in a
workmanlike manner. The trial court credited the testimony of Clayton Johnson, the
renovation contractor, who presented a detailed report regarding Mr. Boyd’s defective
workmanship in repairing Ms. Thompson’s home and the cost required to correct the
defects. Moreover, Ms. Thompson and Mr. Boyd signed a contract in October 2015.
Sometime in 2016, Mr. Boyd moved to Georgia with his family and was gone for several
months. By July of 2017, Ms. Thompson’s project remained incomplete, and she decided
to hire someone else to finish the work. The evidence in the record supports the trial
court’s finding that Mr. Boyd breached the contract by his undue delay and abandonment
of the project.

      We find no error in the trial court’s determination that Mr. Boyd materially
breached the contract with Ms. Thompson.

       II. Damages awarded to Ms. Thompson.

        The amount of damages awarded is a question of fact and is, therefore, subject to
review under the preponderance of the evidence standard. Memphis Light, Gas & Water
Div. v. Starkey, 244 S.W.3d 344, 352 (Tenn. Ct. App. 2007).

       In assessing damages, the trial court relied upon the estimate provided by Mr.
Johnson in the amount of $34,342.06, which was “to complete the repairs on Plaintiff’s
home, including remediation of work previously done by the defendant in an
unworkmanlike manner.” From this amount, the trial court subtracted $5,779.00 for the
new HVAC system, which was not covered by the insurance estimate. After this
reduction, the cost of completion would be $28,563.06. The trial court deducted another
$2,500 from the estimate for change orders to be paid by Ms. Thompson, which would
result in a total cost of completion of $26,063.06, the exact amount of the judgment
entered by the court against Mr. Boyd in favor of Ms. Thompson. Thus, the trial court
ordered Mr. Boyd to pay the entire cost of the project’s completion.

        We find this result puzzling for several reasons. First, as stated in the trial court’s
order, the repairs were made “pursuant to the estimate provided by Capstone Independent
Adjusting Company at a cost of $80,063.55 with $67,232.71 to be paid as actual cash
value and $12,830.84 to be paid as replacement cash value once all work had been
completed.” Thus, after Mr. Boyd received $53,620.30, insurance proceeds remained in
the amount of $26,443.25. There is no accounting in the trial court’s order for the unused
insurance funds, and no explanation for requiring Mr. Boyd to pay the entire cost of the
completion of the project.

                                             -9-
       Second, Mr. Boyd points out a number of charges in Mr. Johnson’s invoices that
are not covered by the insurance estimate. For example, the insurance estimate does not
cover a new front door (total $600), new gutters around the house ($1,560), or a
hardwood floor in the basement (materials $2,300). The trial court subtracted $2,500 for
change orders, but that amount does not explain all of the discrepancies between Mr.
Johnson’s invoices and the insurance estimate. Moreover, the trial court’s order does not
resolve Mr. Boyd’s counterclaim.6

       On the record before this court, we find the trial court’s order inadequate. We
affirm the portion of the order finding Mr. Boyd to be the party in breach of the contract.
We vacate the remainder of the trial court’s decision and remand for further proceedings
consistent with this opinion. In particular, the trial court should make specific findings
regarding its calculation of the amount of the judgment against Mr. Boyd, the distribution
of the remaining insurance proceeds, and the disposition of Mr. Boyd’s counterclaim
against Ms. Thompson.

                                             CONCLUSION

       The judgment of the trial court is affirmed in part and vacated in part, and this
matter is remanded with costs of appeal assessed equally against the appellant and the
appellee, for which execution may issue if necessary.


                                                           ________________________________
                                                           ANDY D. BENNETT, JUDGE




6
  We have determined that, rather than remanding this case for the entry of a final order, the more
appropriate course is for this court to waive the finality requirement in accordance with Tenn. R. App. P.
2 and to address all of the inadequacies of the trial court’s order prior to remand. See Bayberry Assocs. v.
Jones, 783 S.W.2d 553, 559 (Tenn. 1990); Hopwood v. Hopwood, No. M2016-01752-COA-R3-CV, 2017
WL 2964886, at *3 n.4 (Tenn. Ct. App. July 12, 2017).
                                                  - 10 -
