                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs, October 4, 2011

   FILMtech, Inc., v. CHARLIE McANALLY, d/b/a GRAINGER PAVING

                Appeal from the Chancery Court for Grainger County
                No. 08120 Hon. Telford E. Forgety, Jr., Chancellor


            No. E2011-00659-COA-R3-CV-FILED-DECEMBER 22, 2011


Plaintiff brought this action against this contractor alleging breach of contract to construct
an asphalt parking lot for plaintiff. The Trial Court determined that defendant breached the
contract and awarded damages. On appeal, we affirm the Judgment of the Trial Court.


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


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


Scott A. Hodge, Morristown, Tennessee, for the appellant, Charlie McAnally.

C. Dwaine Evans, Morristown, Tennessee, for the appellee, FILMtech, Inc.


                                         OPINION

        This is an appeal from the Trial Court’s judgment in favor of plaintiff FILMtech, Inc.,
upon a finding that defendant Charlie McAnally, d/b/a Grainger Paving (McAnally) breached
its contract to construct an asphalt parking lot for plaintiff.

        Plaintiff filed a Complaint in Chancery Court, alleging that McAnally had constructed
a defective asphalt parking lot at plaintiff's industrial plant. The Complaint stated causes of
action for negligence, breach of contract and violation of the Tennessee Consumer Protection
Act, Tenn. Code Ann. § 47-18-101 et seq. In addition to an award of actual damages,
plaintiff sought treble damages, attorney’s fees and court costs pursuant to Tenn. Code Ann.
§ 47-18-109.

        The Trial Court entered an order referring the matter to a Special Master to conduct
a hearing to take proof on all issues and to report to the Court on all matters submitted to
him, including findings of fact and conclusions of law pursuant to Tenn. R. Civ. P. 53. The
matter was heard by the Special Master on May 10, 2010 and the Master issued his report
June 5, 2010. The report summarized the Master’s findings of facts and stated the Master
found that the preponderance of the evidence showed that McAnally did not perform the
contracted paving work in accordance with the specifications set forth in his estimate, thus
McAnally breached the contract with plaintiff. The Master found that the breach of contract
was the proximate cause of the damage to the pavement. Based on the testimony of
plaintiff’s expert engineer and another paving contractor, the Master found that the “best and
possibly only solution” to plaintiff’s problem with the parking lot was to remove it and build
another lot in accordance with the specifications set forth in the original estimate. The other
contractor provided an estimate of $48,620.00 for the demolition and reconstruction of the
lot. Because plaintiff had used the McAnally-built lot for two years after it was completed,
the Master recommended that the dollar amount of the judgment be reduced by 10% of the
estimated replacement cost of $48,620.00, to $43,758.00. The Master arrived at the 10%
reduction based on the expert engineer’s reference to the lot as a “twenty-year” design. Thus,
the Master reasoned that two years was 10% of the twenty-year life expectancy of the lot.
Because the Master had found a breach of contract, he did not consider the negligence claim
and he stated that the proof did not support a finding of a violation of the Tennessee
Consumer Protection Act. Both parties filed objections to the Special Master’s report with
the Trial Court.

        The Trial Court heard the matter on October 18, 2010 and entered a Final Judgment
in favor of plaintiff the same day. The Judgment reflects that the Trial Court considered the
Special Master’s report, the parties objections to the report, the argument of counsel and the
entire record before rendering judgment.

        The Trial Court adopted and approved the Special Master’s report in its entirety and
awarded judgment in favor of plaintiff against McAnally in the amount of $43,758.00. Both
parties were ordered to pay one-half of the Special Master’s fees of $1,050.00.

       McAnally filed a notice of appeal, and the issues presented for review are as follows:

       A.      Whether the Trial Court erred in approving the Special Master’s report without
               conducting a proper review?

       B.      Whether the Trial Court erred in finding that appellant breached the contract?

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       C.     Whether the Trial Court erred in finding the alleged breach of contract as the
              proximate cause of damage to the pavement?

       D.     Whether the Trial Court erred in awarding appellee $43,758.00 in damages?

       The Trial Court's Order referring certain matters to the Special Master, the Special
Master's Report, and the Trial Court's Order adopting the findings and conclusions of the
Special Master in its entirety as the basis for its final judgment affect our standard of review
on appeal. A concurrent finding by a Special Master and a Trial Court is conclusive on
appeal, except where the finding is on an issue not proper to be referred to a Special Master,
where it is based on an error of law or a mixed question of fact and law, or where a factual
finding is not supported by any material evidence. Manis v. Manis, 49 S.W.3d 295, 301
(Tenn. Ct. App. 2001)(citing Long v. Long, 957 S.W.2d 825, 828 (Tenn. Ct. App.1997);
Aussenberg v. Kramer, 944 S.W.2d 367, 370 (Tenn. Ct. App.1996); Archer v. Archer, 907
S.W.2d 412, 415 (Tenn. Ct. App.1995); Tenn. Code Ann. § 27-1-113.

       Appellant questions whether the Trial Court conducted a review of the Special
Master’s findings and conclusions before approving and adopting the Special Master’s report
as a basis for its judgment in favor of FILMtech. Tenn. R. Civ. P. 53 provides a trial court
with the authority to appoint a special master by order of reference and Rule 53.04(1)
requires the special master to prepare “a report upon the matters submitted by the order of
reference and, if required to make findings of fact and conclusions of law, the master shall
set them forth in the report.” Rule 53.04(2) provides that the trial court, in a non-jury action,
will conduct a hearing after the special master’s report is provided and the parties have had
an opportunity to submit objections to the report to the court. After the hearing, the court
may adopt the report, may modify it or may reject it in whole or in part or may receive further
evidence or recommit with instructions.

        This Court, in In re Estate of Cook, M2008-00325-COA-R3-CV, 2009 WL 3255250
(Tenn. Ct. App. M.S. Oct. 9, 2009), discussed the importance of a trial court’s review of a
special master’s report and the record upon which the special master relied in reaching the
findings and conclusions contained in the report. The Court of Appeals stated that “even
though issues may be referred to a special master, the “trial court retains its judicial power
to make the ultimate determination of the issues in the case.” Id. at *4 (citing Franklin v.
DeKleinFranklin, No. E2007-00577-COA-R3-CV, 2008 WL 1901113, at *8 (Tenn. Ct. App.
Apr.30, 2008)). Further, once objections to the master's report have been filed by the parties,
“it is incumbent upon the Trial Judge to review the evidence and any exhibits and if he
disagrees with the findings of the Master, to make independent findings.” Id. at * 5 (citing
Mumford v. Mumford, No. E2002-01338-COA-R3-CV, 2004 WL 483213, at *4 (Tenn. Ct.
App. Mar.12, 2004)). The Cook Court concluded that the trial court “cannot abdicate to the

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master its responsibility to make a decision on the issue in question, and it “must do more
than ‘rubber stamp’ what the master has done.” Id. (citing Lakes Prop. Owners Ass'n, Inc.
v. Tollison, No. 03A01-9402-CV-00038, 1994 WL 534480, at *3 (Tenn. Ct .App. E.S. Oct.
4, 1994)). “The judgment is to be that of the trial court, and not the master.” Id.

       In this case the Trial Court made it clear in its Judgment that it had considered the
“Special Master’s Report, Objections to Special Master Report filed by Plaintiff, Response
to said Objections filed by Defendant, argument of counsel, and the entire record”
(emphasis added) before approving and adopting the Special Master’s report. Moreover, this
issue was not raised in the Trial Court and is without merit.

        There is material evidence in the record to support the finding that Mr. McAnally
breached the contract and that the breach of the contract was the cause of the failure of the
pavement. It is undisputed that McAnally agreed to construct plaintiff's parking lot
according to specifications. Reid Beebe, a Registered Professional Engineer employed by
S & ME as a project manager, an engineering consulting firm located in Knoxville, testified
before the Master regarding the results of his tests. McAnally only testified that in one part
of the parking lot, near the loading dock, he could not put in six inches of base stone because
there was rock already present at that spot. He did not dispute that the base stone was less
than six inches in the other locations tested by Beebe's measurements which also showed the
asphalt as being less than three inches, other than by saying that he was sure the equipment
he used to apply the asphalt was set to produce a three inch level. However, he did not
produce any evidence to demonstrate that the asphalt was actually applied to met the three
inch specification he had agreed to provide. Thus, the only testing of the pavement after it
began to fail was performed by Mr. Beebe, and the results of those tests clearly showed that
all but one of the sites tested did not have the required thickness of base stone and asphalt.


       A contractor’s failure to comply with the agreed upon specifications of a construction
contract is a breach of that contract. This Court, in Jessee's Estate v. White, 633 S.W.2d 767
(Tenn. Ct. App. 1982) discussed this issue. There, a suit was brought against a paving
contractor for breach of the paving contract, and this Court held that the contractor’s failure
to comply with the specifications was a material breach of contract. Id. at 768 (citing Sullivan
County v. Ruth & Co., 106 Tenn. 85, 59 S.W. 138 (1900); Edenfield v. Woodlawn Manor,
Inc., 62 Tenn.App. 280, 462 S.W.2d 237 (1970); East Lake Lbr. Box Co. v. Simpson, 5
Tenn.App. 51 (1927). Cf. Perkins Oil Co. v. Eberhart, 107 Tenn. 409, 64 S.W. 760 (1901)).
There is material evidence in the record that McAnally did not meet the specifications of the
contract when he constructed the parking lot. Thus, he breached the contract.

       Appellant contends that even if there was a breach of contract due to not meeting the

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thickness specifications for the base stone and asphalt layers of the pavement, the breach was
not the cause of the pavement failure. However, there is material evidence in the record that
supports a finding that the failure to build the parking lot to specifications caused the failure.
Mr. Beebe testified that it was his opinion to a reasonable degree of engineering certainty that
the failures in the parking lot were caused by a “combination of the thickness of the asphalt
and the base stone not meeting the intended thickness.” In addition to the evidence presented
by Beebe, a Mr. Sellers, an experienced pavement contractor with industrial experience, also
testified that in his opinion the parking lot would not have failed, even if forklifts were driven
over it, had it been constructed as specified in McAnally’s estimate.

       Appellant attempts to show that Mr. Beebe also attributed the failures to heavy traffic
and water migrating into the subsoil. However, Mr. Beebe’s testimony was actually that
these potential contributing factors would be secondary to the factor of inadequate thickness
of the base stone and asphalt. Accordingly, there was material evidence offered by Beebe
and Sellers that the breach of the contract was the cause of the pavement failure.

        McAnally contends that the amount of damages of $43,758.00 awarded to plaintiff
was excessive as it was more than the cost of the original contract. There was material
evidence in the record that failures in the pavement would continue to occur unless the
parking lot was removed and rebuilt according to the original specifications. Sellers testified
that the cost for him to remove the existing failed asphalt and install new base stone and
asphalt as per the original specifications would be $48,620.00. Defendant offered no
evidence as to the cost of repair. Because there is material evidence in the record to support
the finding that the damage sustained by the plaintiff was the cost of removal and
replacement of the parking lot and there was material evidence to support the cost of the
work, accordingly, the Trial Court did not err in awarding plaintiff $43,758.00 in damages.
Plaintiff did not appeal the Trial Court’s reduction in damages from Mr. Seller’s estimate of
$48,620.00 to $43,758.00 which was based on the finding that the useful life of the parking
lot was twenty years and that it had been used by plaintiff for two years at the time of trial.

        There was material evidence presented to support the Special Master’s and the Trial
Court’s finding that appellant breached the construction contract and that the breach was the
proximate cause of the parking lot's failure. Moreover, there was material evidence
presented to support the award of damages. Accordingly, the Judgment of the Trial Court
is affirmed. The cause is remanded, with the cost of the appeal assessed to Charlie
McAnally.




                                                     _________________________________
                                                     HERSCHEL PICKENS FRANKS, P.J.



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