                         IN THE COURT OF APPEALS OF TENNESSEE
                                      AT JACKSON


JIMMY HAWKINS,                            )
                                          )
               Plaintiff/Appellee,        ) McNairy Chancery No. 6844

VS.
                                          )                             FILED
                                          ) Appeal No. 02A01-9708-CH-00203
                                          )
DENNIS ELLIS,                             )                             October 12, 1998
                                          )
               Defendant/Appellant.   )                                 Cecil Crowson, Jr.
                                                                        Appe llate Court C lerk


                  APPEAL FROMTHE CHANCERY C  OURT O McNAIRY COU
                                                   F           NTY
                                AT SELMER, TENNESSEE
                    THE HONORABLE DEWEY C. WHITENTON, CHANCELLOR




JOE H. BYRD, JR.
Jackson, Tennessee
Attorney for Appellant



TERRY ABERNATHY
Selmer, Tennessee
Attorney for Appellee




AFFIRMED




                                                           ALAN E. HIGHERS, J.



CONCUR:

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

DAVID R. FARMER, J.
        Defendant/appellant, Dennis Ellis (“appellant”), appeals the judgment of the trial court awarding

plaintiff/appellee, JimmyHawkins, Sr. (“appellee”), a net judgment of $28,867.64 and an equitable lienon the

subject real estate until payment of the judgment.

For reasons stated hereinafter, w affirm the judgm of the trial court.
                                 e                ent



        This case involves a residential construction contract enteredinto by appellee/ general contractor and

appellant/landowner. The parties signed a printed building contract on June 23, 1994. The contract contained

handwritten provisions and a printed description of materials with a place provided to include handwritten

insertions. This agreement and the entirety of its terms were evidenced by certain documents, including a

sketch of the garage apartment to be occupied by appellant’s son, another sketch of the main house with a

sunroom added by the appellant, theBuilding Contract, andthe Description of Materials. Later, a copy of the

detailed blueprints of the home was ordered and used by the parties. The original construction cost as set

forth in the written building contract was $140,000.00. This included the single family residence, the addition

of the sunroom, and the garage apartment.



        It is undisputed that the residence being built by appellee was never intended to be constructed in

strict compliance with the detailedblueprints that wereordered. Thebreakfast bay windowwaseliminated from

the plans, a sunroom was added, there was to be no basement, and the stairway was deleted fromthe plans

thereby changing the interior and exterior walls and some of the ceiling heights. There were also some minor

changes in some windows and doors and som changes in the roof design and exterior trim details.
                                         e



        In pertinent part, the Building Contract entered into by the parties on June 23, 1994, contained the

following provision which is at the heart of this dispute:

                          Ow nersand Builders agree that no changes from the original plans,
                 sketches, specifications anddescriptionof m   aterialsshall bemade,required,
                 or collected for, unless both parties agree thereto in writing, as to the extent
                 of the changes and the amount to be paid or deducted therefore, before
                 work thereon shall have begun.

        As construction progressed on the residence, numerous cosmetic and structural changes, deletions,

and additions were made. The central dispute in this matter is whether these changes, deletions, and

additions were performed with the knowledge and consent of the appellant. Appellee contends that these

changes were performed at the appellant’s request, and maintains that these changes were not agreed to in


                                                        2
writing, but were rather the result of oral conversations that took place at the construction site. More

particularly, when these changes wereundertaken, appelleecontends that he would discuss saidchanges with

appellant, tell appellant that thechanges would addto the total bill, and giveappellant a figure or at least some

idea of the extra costs involved. Appellant, on the other hand, insists that m of these changes were
                                                                              any

undertaken without his knowledge or consent and as such are abreach of theabove provision inthe Building

Contract. When appellant was asked to pay an extra amount over and above the contract price for these

changes, herefused, andappelleeceasedconstructionontheresidence. When no solution could be reached

between the parties, appellee filed a lien on the appellant’s property and then filed suit to enforce that lien.



        On February 3, 1995, appellee filed a complaint inwhich he alleged that hewas due fromthe appellant

the balance of $12,401.42 of a residential building contract, plus the sum of $38,058.68 for “extras” that were

included in the residence. Thereafter, onApril 25, 1995, appellant filedananswer toappellee’s complaint with

affirmative defenses. Appellant also filed a counterclaim against appellee alleging, inter alia, breach of

contract, improvements m in a non-workmanlike manner, and breach of express and implied warranties
                        ade

of workmanship and materials whereby he was seeking $46,500.00 in compensatory damages from appellee.




        This matter was tried in the Chancery Court of McNairy County, Tennessee, on March 3, 1996,

through March 5, 1996. Upon reviewingtheextensive evidencein this matter, the trial court awarded appellee

$42,514.14 minus a $13,646.50 credit to appellant for completion item on the residence. The net amount
                                                                     s

of this judgment due appellee was $28,867.64. This appeal ensued.



        Inasmuch as this case was tried by the trial court sitting without a jury, this Court’s reviewon appeal

is governed by Tennessee Rule of Appellate Procedure 13(d), which directs us to review the case de novo.

Roberts v. Robertson County Bd. of Educ., 692 S.W.2d 863, 865 (Tenn. Ct. App. 1985); Haverlah

v. Memphis Aviation, Inc., 674 S.W.2d 297, 300 (Tenn. Ct. App. 1984); Tenn. R. App. P. 13(d). In

conducting a de novo review of the record below, however, this Court must presum that the trial court’s
                                                                                e

findings of fact are correct. Under this standard of review, we m affirmthe trial court’s decision unless the
                                                                 ust

trial court committedan error of lawaffecting the result or unless the evidence preponderates against the trial

court’s findings. Roberts, 692 S.W.2d at 865.


                                                       3
        Appellant first contends that the trial court erred when it applied the principles of quasi-contract,

quantum meruit, and unjust enrichm to the facts of this case “w
                                  ent                          here none of said theories of recovery

were alleged within the complaint of Appellee.” We disagree.



        This Court has no duty to create a claim the pleader does not spell out in its complaint. Donaldson

v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977). However, we will give effect to the substance rather than

the form and terminology of a pleading. Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977) and

Wheeler v. City of Maryville, 29 Tenn. App. 318, 321-22, 203 S.W 924, 925-26 (1947). All that
                                                                .2d

Tenn.R.Civ.P. 8.01 requires is that a complaint containa short, plainstatem of aclaimshowingthepleader
                                                                           ent

is entitled to relief along with a claim of damage. Adams v. Carter County Memorial Hospital, 548

S.W 307, 308-09 (Tenn. 1977).
   .2d



        Appellee sets forth the following in parts three and four of his complaint:

                 3. . . .[a]s the construction progressed, theDefendant specifically requested
and required num  erous changes and additions and extras to the original Building Contract, and the Plaintiff,
pursuant to instructions andrequest from the Defendant, provided many extras and additions to the originally
agreed upon structure or structures, and all of such additions and extras resulted in substantial additional cost
and expenses to the Plaintiff, and provided substantial additional value to the Defendant.

                 4. The Plaintiff would further state and allege that all claimed extras and
                 additions to the referenced Building Contract were done and perform in ed
                 a good, substantial and workmanlike manner and in each instance, were
                 done pursuant to the specific instructions or requests and agreement with
                 the Defendant; and that, contrary to the terms of the Building Contract
                 between these parties, neither party required or insisted upon any written
                 change orders, and the Plaintiff would further allege that the Defendant
                 having now received the value and benefit of any such changes and having
                 been an active participant in requesting such changesand agreeing to such
                 changes, he should now be estopped from asserting any contractual
                 provisions to the contrary.



        The petition makes no mention of quasi contract, quantum meruit, or unjust enrichm how
                                                                                          ent; ever,

after reviewing appellee’s complaint, it is the opinion of this court that its allegations make out not only a

contractual cause of action but also a cause of action based upon the above principles.



        Considering that the trial in this matter encompassed two and one-half days, there was extensive

evidence presented at trial. This evidence recapitulates the problems that developed between the parties,

namely, the alleged oral agreements for changes and added amenities, the denial thereof by appellant, the


                                                       4
alleged defects in the construction and the remedial measures that were proposed to repair any defects.



        This case boils down to the credibility of the parties. Appellee testified that many extras were

considered and requestedbyappellant with the additional costs explainedto him. To mentiona few, appellee

testified that brass faucets were asked for by appellant and installed accordingly by appellee; that wider trim

material was used at additional costs; that dryvit was used on a gable instead of vinyl siding; that a sunroom

was added in the place of an uncovered deck; that steel steps were requested instead of wooden steps; that

curio cabinets were added in the place of a closet; that hardwood tile was used as a two foot border in each

of the three bedrooms and in the sunroom instead of carpet; that hardwood tile was used in the garage

apartment kitchen instead of vinyl flooring; that ceramic tile was used in a bathroom where vinyl flooring was

to be used; that ceramic tile was used in the foyer and on the first fifty inches of the foyer wall; that ceramic

tile was used in the sunroom instead of carpet; that glass blocks were used in the place of regular glass in the

master bathroom that step out corners w installedat each corner of the exterior of the house; that both the
               ;                       ere

garage in the main house and thegarage in the garage apartment were heated; and that therewere to be two

lavatories in the master bathroom instead of one. These are a few of the modifications that appellee claims

were requested by appellant. Appellee insists that each of the “extras” was discussed with appellant including

a discussion of the increase in cost.



        Appellant not only denies requesting most of the “extras” but also denies that the cost of such was

discussed with him. However, there are certain “extras” that appellant testified he wanted added to the

residence. For instance, appellant testified that he wanted a wider door than the standard thirty-six inch door

and, indeed, got such a door. Appellant further testified that it w his idea to have ceramic tile placed on his
                                                                   as

foyer wall. Appellant testified that appellee mentioned the possibility of glass blocks replacing some of the

windows in the master bathroomandthat appellant desired to have such glass blocks installed in place of the

windows. In testifying to these “extras,” appellant stated that he knew that the costs for the these additions

would be higher.



        In the case sub judice, we do not believe appellant can rely on the Building Contract provision

requiring that all changes to the plans are to be made in writing and yet testify that he ordered certain changes

which were incorporated into the residence without such a writing. Where there is a clause in a construction


                                                       5
contract which states that changes must be approved by the ow and contractor in w
                                                             ner                 riting and extra work

is performed upon the owner’s verbal instruction or with the owner’s knowledge and without objection, the

clause requiring that change orders m bein writing is waived by the course of dealing between the parties.
                                     ust

Moore Const. Co., Inc. V. Clarksville Dept. Of Electricity, 707 S.W.2d 1 (Tenn. App. 1985).



           As mentioned supra, this case essentially boils dow to the credibility of the testimony. The trial
                                                              n

judge heardmany witnesses, comprisingtenvolum and over thirteen hundredpages of trial testimony, and
                                             es

reviewed fourteen exhibits, including many photographs of the residence. The trial judge also was able to

observe the witnesses and make a determination based upon what he saw and heard. In light of this, this

court must apportion great deference to that finding when determining whether the evidence preponderates

against the trial judge's determination. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315

(Tenn. 1987). When a matter such as this hinges on the credibility of witnesses, the trial court will not be

reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral

testimony of witnesses that contradicts the trial court's findings. Galbreath v. Harris, 811 S.W.2d 88, 91

(Tenn. Ct. App. 1990), cert. denied, 502 U.S. 939, 112 S.Ct. 374, 116 L.Ed.2d 326 (1991). As the United

States Supreme Court has observed:

                    The trial judge's major role is the determination of fact, and with experience
                    in fulfilling that role com expertise. Duplication of the trial judge's efforts
                                               es
                    in the court of appeals would very likely contribute only negligibly to the
                    accuracy of fact determination at a huge cost in diversion of judicial
                    resources. In addition, the parties to a case on appeal have already been
                    forced to concentrate their energies and resources on persuading the trial
                    judge that their account of the facts is the correct one; requiring them to
                    persuade three more judges at the appellate level is requiring too m    uch.


Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518

(1985).1




           In light of the foregoing, we cannot say that the evidence preponderates against the findings of the

trial court. Accordingly, we affirm the judgm of the trial court awarding appellee a net judgment of
                                             ent



           1
            The same is also true for expert witnesses. The trial judge had the opportunity to hear and observe the expert witness
in this matter. It was then left up to his discretion as to how much weight to give such testimony.

                                                                 6
$28,867.64 and an equitable lien until such judgment is satisfied. Costs of this appeal are taxed to appellant,

for which execution may issue if necessary.




                                                                            HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




                                                      7
