                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    May 12, 2000 Session

  STACY'S CARPET STEAM CLEANING COMPANY d/b/a BENT NAIL
           CONSTRUCTION v. DAVID E. MCNEELY et al.

                 Direct Appeal from the Chancery Court for Carter County
                            No. 23016 Jean A. Stanley, Judge

                              FILED NOVEMBER 14, 2000

                                No. E1999-01880-COA-R3-CV


Stacy's Carpet Steam Cleaning Company d/b/a Bent Nail Construction, the Plaintiff, appeals a
judgment from the Carter County Chancery Court. The Plaintiff's issues are whether the Trial
Court erred in calculating the damages, erred in failing to award prejudgment interest, and erred in
failing to enforce a mechanic's lien. The Defendants raise an issue insisting the parties reached an
accord and satisfaction or a new contract. We affirm the judgment of the Trial Court pursuant to
Rule 10 of this Court as to the Plaintiff's issues one and two and as to the Defendants' issue and
modify its judgment as to the Plaintiff's issue three regarding enforcement of its lien.


                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed;
                                      Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY, JJ., joined.

Kenneth D. Hale, Bristol, Tennessee, for the appellant, Stacy's Carpet Steam Cleaning Company
d/b/a Bent Nail Construction.

Robert J. Jessee, Johnson City, Tennessee, for the appellees, David E. McNeely and Renee McNeely.


                                            OPINION

        Stacy's Carpet Steam Cleaning Company d/b/a Bent Nail Construction, the Plaintiff, was
selected to build a house for David and Renee McNeely, the Defendants. Problems were
encountered during the building of the house, and costs of construction exceeded initial estimates.
        The Trial Court found, and we concur, that the parties had no contract as to the price to be
paid for building the Defendants' house, but that the Plaintiff would be entitled to recover under the
theory of quantum meruit.

        The Plaintiff's issues insist that the Trial Court erred in calculating the damages,1 erred in
failing to award prejudgment interest, and erred in failing to enforce a mechanic's lien.

       The Defendants raise an issue contending that the Trial Court was in error in not finding that
"the parties had entered into an accord and satisfaction agreement and/or a new contract for the
completion of the project."

        Our review of the record and the briefs filed by the parties persuades us that as to the
Plaintiff's issues one and two and as to the Defendants' one issue, this is an appropriate case for
affirmance under Rule 10 of this Court. The evidence does not preponderate against the judgment
of the Trial Court as to these issues raised by the parties.

        Notwithstanding that we are affirming the judgment under Rule 10, we believe it appropriate
to address briefly each issue raised by the Plaintiff. As to the first, the Trial Court initially awarded
the Plaintiff a judgment of $31,156.64 which, on post-trial motion, was reduced to $17,025. Upon
inquiry of the Court to counsel for both parties, the Plaintiff's counsel advised that the value of the
lot and completed house was found by the Trial Judge to be $233,000, and the evidence introduced
does not preponderate against this finding. The Trial Judge then deduced the following items from
the value found: cost of the lot--$25,000, improvements paid for by the Defendants--$17,792, and
payments made to the Plaintiff by the Defendants--$173,183. This leaves a balance of $17,025,
which was the ultimate award made by the Trial Judge.

        In accepting the Defendants' theory, we have not overlooked the response from counsel for
the Plaintiff. However, we believe under the theory of quantum meruit, the Trial Court chose the
proper formula for determining the remaining amount owed for building the house, the cost for
which was initially estimated to be $130,000.

        Finally, as to the question of the failure of the Trial Court to enforce the mechanic's lien
against the Defendants' property, we deem the Defendants' failure to respond to be a concession that
it is well taken. Accordingly, we remand the case for the entry of such an order.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for entry of the aforementioned order, such further proceedings, if any, as may be necessary, and
collection of costs below. Costs of appeal are adjudged one-half to the Plaintiff and one-half to the
Defendants.


         1
                  Although the issue on ap peal speaks of damages, in reality, the Plaintiff is seeking to recover the
balance it contends is owed for constructing the house.



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_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE




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