                IN THE COURT OF APPEALS OF TENNESSEE
                             AT MEMPHIS
                                 April 18, 2012 Session

SONG & SONG CORPORATION, and JIN Y. “JIM” SONG, Individually v.
       FINE ART CONSTRUCTION COMPANY, LLC, ET AL.

              Direct Appeal from the Chancery Court for Shelby County
               No. CH-07-02364, Part II    Arnold Goldin, Chancellor


                 No. W2011-01708-COA-R3-CV - Filed June 14, 2012


Property owner hired a general contractor to perform construction work on a commercial
building. The parties subsequently discovered that when the building was originally
constructed, there were no fire dampers installed in the ductwork. The contractor performed
the additional work necessary to install the missing fire dampers, but when the work was
completed, the property owner refused to pay the amount invoiced by the contractor for the
additional work. Both parties asserted that the other had breached the contract. Following
a two-day bench trial, the trial court ruled in favor of the contractor and awarded her a
judgment for the unpaid balance and other damages. The property owner appeals. We affirm
as modified.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Kevin A. Snider, Germantown, Tennessee, for the appellants, Song & Song Corporation and
Jin Y. “Jim” Song, Individually

Roscoe A. Feild, Steven R. Walker, Memphis, Tennessee, for the appellees, Fine Art
Construction Company, LLC, et al
                                                  OPINION

                                 I.   F ACTS & P ROCEDURAL H ISTORY

       Song & Song Corporation owns property located on Winchester Road in Memphis,
Tennessee. The president of Song & Song Corporation is Jin Y. “Jim” Song, and he and his
wife are its sole owners. In 2005, Mr. Song hired a general contractor to construct a
commercial building on the property. However, the contract was only for the construction
of the “shell” of the building and the completion of its top floor. The interior of the
building’s first floor was to remain unfinished. The contract work was completed around
February of 2007, and Mr. Song began operating an office on the second floor of the
building.

        In May 2007, Mr. Song obtained a quote from the original contractor of $105,000 for
the completion of the unfinished first floor. Mr. Song then asked for a bid from another
general contractor, Tae Young “Chris” Shin, who was an acquaintance from the Korean
community and a close friend of Mr. Song’s wife. Ms. Shin had just recently obtained her
general contractor’s license, in April 2007, and Mr. Song had assisted her in preparing
documents for the application process. Mr. Song provided Ms. Shin with the detailed bid
from the previous contractor in order to identify the scope of the work involved. Ms. Shin
agreed to complete the unfinished first floor of Mr. Song’s building for $90,000, and the
parties entered into a written contract to that effect on June 20, 2007.1 Ms. Shin began work
shortly thereafter, and by all accounts, everything went smoothly for the next few weeks.

        On August 2, 2007, a Shelby County Code Enforcement Officer issued a stop work
order on the site. Shelby County Code requires that fire dampers2 be installed inside the
ductwork of a multi-tenant commercial building, and two separate mechanical inspections
must be performed by Code Enforcement Officers during the installation process. At Mr.
Song’s building, fire dampers were required to be placed inside the ductwork that was above
the first floor ceiling, between the first and second floors. The stop work order was issued
because the necessary inspections of the fire dampers had not taken place, and yet the first


        1
          The contract was between Song & Song Corporation and Fine Art Construction, LLC, of which
Ms. Shin is the sole owner and president. For ease of reference, we will refer to the parties simply as Mr.
Song and Ms. Shin for much of this opinion, just as the parties have done in their briefs.
        2
           According to the testimony at trial, during a structure fire, a fire damper prevents the fire from
spreading through the ductwork. Ductwork would normally attract smoke and fire because it moves air. A
fire damper has a band similar to a heat strip, and in the event of a fire, the strip reaches a certain temperature
and causes the fire damper to close. The fire damper then terminates the air flow through the ductwork and
isolates the fire.

                                                       -2-
floor ceiling had already been covered with sheetrock, precluding access to the ductwork
above the ceiling. It was later discovered that fire dampers had never been installed in the
ductwork.

        Ms. Shin informed Mr. Song about the stop work order and the lack of fire dampers.
She claimed that the fire dampers should have been installed by the previous contractor who
began the process of installing the ductwork. Ms. Shin, and her subcontractor, ultimately
installed the necessary fire dampers and obtained the necessary approval of them from the
Code Enforcement Officer on September 21.

       Mr. Song paid the $90,000 contract price prior to the completion of the work, and he
also paid a total of $8,904.90 toward invoices he received for the additional work. On
September 25, Mr. Song gave Ms. Shin a written “Incentive Agreement,” which stated that
Song & Song Corporation promised to pay her $5,000 if she obtained a temporary use and
occupancy permit for the first floor by October 15, so that Mr. Song’s tenants could begin
to move in. Ms. Shin completed her work and passed the mechanical, electrical, and
plumbing inspections by October 10. However, Mr. Song fired Ms. Shin on October 11,
before she could obtain the final inspection necessary to obtain the aforementioned permit.
Mr. Song obtained the permit himself on October 16. Ms. Shin submitted a final invoice to
Mr. Song after she was terminated, which stated that he still owed an additional $16,927.28
for materials and additional work that was completed prior to her termination.

        Mr. Song, individually, along with Song & Song Corporation, filed this lawsuit
against Ms. Shin and Fine Art Construction, LLC on December 4, 2007. He alleged that he
had experienced “numerous and continuing problems with the work that Defendants
performed as well as with the time line of the work being completed.” The complaint
mentioned the fact that the work had failed to clear a mechanical inspection, requiring the
removal of sheetrock and the installation of fire dampers. The complaint alleged that the
resulting delay had caused him to lose a commercial tenant and incur substantial damages.
The complaint alleged breach of contract/warranty, fraud/misrepresentation, violation of the
Tennessee Consumer Protection Act, “money had and received,” unjust enrichment, and
negligent/reckless acts or omissions. It sought $100,000 in compensatory damages, treble
damages, $300,000 in punitive damages, and attorney’s fees, among other things.

        Ms. Shin and her construction company filed an answer and a countercomplaint,
alleging that she had completed the contract work and the additional work, for which Mr.
Song had allegedly promised to pay. Ms. Shin alleged that Mr. Song had improperly
terminated her after she completed her work, rendering it impossible for her to obtain the
final inspection within the incentive payment period. Thus, Ms. Shin claimed that she was
entitled to damages for the outstanding invoice balance, the incentive bonus, and attorney’s

                                            -3-
fees.

        A two-day bench trial was held in May 2011. The written contract entered into by the
parties listed various items to be completed, and, relevant to this appeal, it stated, “The
heating and air will be completed by the installation of a five ton condenser, duct-work, and
restroom exhaust fan.” However, it did not mention fire dampers. Similarly, the bid from
the previous contractor, which Mr. Song provided to Ms. Shin in order to show her the scope
of work involved, mentioned ductwork but not fire dampers. Mr. Song testified that he did
not know why fire dampers were not mentioned in the contract, stating, “I just assumed if fire
dampers are necessary, they should be included.” Mr. Song said that he did not know that
fire dampers had not already been installed, and he explained that he did not even know what
a fire damper was at the time of contracting.3

       Mr. Song testified that after the stop work order was issued at the beginning of
August, Ms. Shin told him that there was a problem with the initial mechanical inspection.
According to Mr. Song, an inspector then pointed out that fire dampers are required when
more than one tenant will be occupying a building, and that Ms. Shin had covered the ceiling
before a fire damper inspection was performed.

        It was undisputed that Ms. Shin installed the necessary fire dampers and received the
required approval from the Code Enforcement Officer on September 21. Mr. Song said that
he and Ms. Shin had never discussed a “dollar amount” for the additional work that would
be required to install the fire dampers. He testified that around September 24 or 25, Ms. Shin
informed him that she had run out of money and needed additional money to complete the
work. He said Ms. Shin also told him that the fire dampers should have been installed by the
previous contractor. Mr. Song said that he still had some “retainer” money that he had not
paid to the previous contractor, so he paid $5,904 of that money to Ms. Shin because he “had
to pay her to complete the work first.” Mr. Song also made another $3,000 payment to Ms.
Shin at some point. He acknowledged that he paid these amounts to Ms. Shin for the
additional work due to the fire dampers.

       Mr. Song testified that he gave Ms. Shin the “Incentive Agreement” for $5,000 on
September 25 because he was trying to keep from losing his commercial tenant, who was
supposed to have been occupying a first floor suite as of September 1. Mr. Song said that
he had entered into the lease agreement with the tenant on June 1, before he entered into the
construction contract with Ms. Shin on June 20, and he claimed that Ms. Shin was aware of


        3
          Prior to Ms. Shin’s completion of the work, Mr. Song passed the required examination to become
a licensed general contractor himself, in August 2007. He had previously taken a class in preparation for the
exam, but he testified that he did not learn about fire dampers at the class.

                                                    -4-
the tenant’s lease when she entered into the contract. According to Mr. Song, his tenant
terminated the lease on or about October 3, and so Mr. Song then terminated Ms. Shin on
October 11.

        The next witness to testify was Roy Scobey, who was the architect who drew up the
plans for the initial construction of the building by the previous contractor. Ms. Shin had
obtained these plans from Mr. Scobey shortly after signing the contract. Mr. Scobey testified
that the plans he prepared included some of the mechanical equipment to be placed above
the ceiling of the first floor, but it did not include anything for the actual first floor level of
the building because that work was not going to be performed at that time. Mr. Scobey
testified that Shelby County Code requires that fire dampers be installed at any location
where a duct penetrates a fire rated wall or ceiling. He said that most mechanical contractors
would be aware of this requirement, but as for general contractors, like Ms. Shin, he said
“they might” be aware of the requirement, “but not be as well versed as a mechanical
contractor might be.” Mr. Scobey said that fire dampers were not installed in the ductwork
during the initial phase of construction because the ductwork was confined to the space
above the first floor ceiling, and did not penetrate a ceiling or wall, so fire dampers were not
necessary. According to Mr. Scobey, when the first floor construction began, “You would
take the ductwork that is already in the second floor, you would be adding ductwork in the
first floor and you would be placing that fire damper in between the two where they
connect[.]”

         The general contractor who constructed the shell of the building, Greg Pilcher,
testified as well. Mr. Pilcher could not recall exactly how much ductwork he installed on the
first floor, but he acknowledged that some ductwork was installed that came down into the
first floor. Mr. Pilcher explained that the first and second floor had separate heating and air
conditioning systems, but the furnaces for both systems were on the second floor. When the
first floor was completed, he said, the ductwork for the separate system would have to be
completed, and it would “tie in” to the existing system on the second floor. Mr. Pilcher said
that the fire dampers would typically be at the ceiling or “sheetrock level” where the two
connected, but they could also be “somewhere above,” at the floor level. Mr. Pilcher testified
that he did not install fire dampers in Mr. Song’s building because, at the time, it was not
occupied by multiple tenants, and therefore there was no need for fire dampers. He could not
recall whether the ductwork he installed was “blocked off” or left open. He also said, “I
don’t know if the ductwork, you know, whatever was stuffed out there made someone
believe [that fire dampers] were there or not.”

        A.J. Szot was the mechanical contractor hired by Ms. Shin as a subcontractor to
complete the heating and air conditioning work and ductwork on the first floor. He testified
that the “main branches” of the ductwork on the first floor had already been installed by the

                                                -5-
previous contractor before he began his work. Mr. Szot testified that one cannot tell whether
a fire damper has already been installed inside ductwork just by looking at it. As a result, he
said that he did not know whether fire dampers had already been installed in Mr. Song’s
building. Mr. Szot explained that the ductwork was already sealed and “completely closed”
and said, “I just couldn’t start cutting the ductwork. It was [a] professional job, looking
good.”

        Mr. Szot testified that after the stop work order was issued and it was discovered that
there were no fire dampers, he went back and installed the missing fire dampers. He said that
he had to cut into the existing ductwork, and because the fire dampers would not fit into the
correct position, the ductwork had to be redirected at every location where a fire damper was
installed.

        The Code Enforcement Officer who issued the stop work order on August 2 testified
that after it was issued, the original engineer on the job withdrew, so he later met with
another architect at the jobsite in order to decide exactly how to install the fire dampers in
the existing ductwork. Ms. Shin was required to resubmit the appropriate plans from the
architect, and obtain approval of those plans, before the inspections could take place. The
inspector testified that the “above ceiling” inspection finally took place on September 21, and
the final mechanical inspection was passed on October 9.

        Don Sloan was tendered as an expert witness by Mr. Song. Mr. Sloan was not himself
a licensed general contractor, but he had taken the necessary examination and was a license
holder for his employer. Mr. Sloan testified that he had reviewed the written contract
between Mr. Song and Ms. Shin, as well as “the plans and specifications and items that were
being asked to be done . . . and that type of thing,” and he found nothing to indicate from
those documents that fire dampers had previously been installed by Mr. Pilcher. Mr. Sloan
testified that if there was existing ductwork when the work began, the general contractor
would have a responsibility to determine whether it complied with Code. He said that if he
did not know whether fire dampers had already been installed, then he would obtain an on-
site inspection or contact the mechanical engineer who designed the original portion of the
work in order to gain that information.

        Finally, the court heard testimony from Ms. Shin. She testified that the bid provided
to her by Mr. Song, which he had obtained from the original contractor, and given to her in
order to show her the scope of work, did not mention fire dampers. Consequently, she
testified, her estimate did not include the installation of fire dampers either. Ms. Shin pointed
out that the parties’ written contract similarly did not mention fire dampers. Ms. Shin
testified that when she began her work, there was existing ductwork in the first floor that had
been installed by the previous contractor, including eight “trunks” coming down from the

                                               -6-
second floor. She said that one could not tell from observation whether fire dampers were
already inside the ducts because they were completely sealed. However, she said that she had
other evidence indicating that the fire dampers had already been installed. She testified that
she obtained a copy of the original building plans from Mr. Song, which had been prepared
by Mr. Scobey for the construction work that had already been completed, in order to
determine the condition of the building. She said that those building plans clearly showed
fire dampers and details for their installation, and therefore, the fire dampers should have
been installed by whoever installed the ductwork shown on the plans. A large set of
architectural plans, prepared by Mr. Scobey’s office, was submitted into evidence. Those
plans indicate ductwork coming “down from attic” at eight locations on the first floor. At
each of those locations, there is a symbol which, according to the legend, indicates a
horizontal fire damper, and there is also a designation of “FD” at each of the eight locations.
Ms. Shin testified that FD means fire damper. On a separate sheet, there is a “Fire Damper
Detail Floor Mount,” explaining the intricacies of installing the fire dampers.

       In short, Ms. Shin testified that she did not call for an inspection of the fire dampers
once she began the work because the building plans she was given showed that fire dampers
had already been installed, and Mr. Song told her that he had already obtained a use and
occupancy permit for the building. Ms. Shin testified that a use and occupancy permit is not
issued unless the building is built correctly. Thus, according to Ms. Shin, she had no reason
to question the existence of the fire dampers. Ms. Shin said that she first learned that there
were no fire dampers after the Code Enforcement Officer issued the stop work order.

        Ms. Shin testified that she immediately informed Mr. Song when the stop work order
was issued and when she later learned that fire dampers had not been installed by the
previous contractor. According to Ms. Shin, Mr. Song asked if this problem was going to
cost her extra money, and he initially suggested that she ask the previous contractor, Mr.
Pilcher, to pay for it. Ms. Shin said she informed Mr. Song that she could not do that because
she had taken the job away from Mr. Pilcher, but, she said she told Mr. Song that if it turned
out to be a small expense, around a thousand dollars, then she would do it without asking for
extra money. Ms. Shin testified around August 29, she informed Mr. Song that the additional
work required to install the eight fire dampers was going to cost a lot more than a thousand
dollars, and that she could not be responsible for the additional cost. According to Ms. Shin,
Mr. Song then told her that he still had $12,000 of the “retainer” money he owed to Mr.
Pilcher, and he said that he hoped the problem could be resolved with that money. However,
she said the parties never agreed upon a certain “dollar amount.” Ms. Shin testified that the
parties ultimately agreed that she would bill him for the additional work, because she not did
not know how much it would eventually cost, or even how the work would have to be
completed.



                                              -7-
        Ms. Shin testified that it in order to complete the additional work, it was necessary to
tear down some of the completed work, such as firewalls, and then the existing ductwork had
to be cut with a saw in order to access the locations where the fire dampers should have been
installed. Ms. Shin testified that she invoiced Mr. Song as the work progressed for the
amounts that she was spending, and Mr. Song paid two of the invoices, for a total of
$8,904.90 above the contract price, but the remaining balance had not yet been invoiced at
that time. She testified that the fire dampers were installed on September 19 and ultimately
approved on or about September 20.

       Ms. Shin testified that Mr. Song gave her the incentive agreement on September 25,
and that she experienced no further problems until she was abruptly terminated on October
11. Ms. Shin said she had already obtained the final electrical, mechanical, and plumbing
inspections by that time, and there was no more work to be completed. She said that she
could have obtained the final inspection by October 15, but Mr. Song made it impossible for
her to do so when he terminated her on October 11.

       At the conclusion of the two-day bench trial, the trial court dismissed all of the claims
in Mr. Song’s original complaint, and it entered a judgment against Song & Song
Corporation on Ms. Shin’s counterclaims, to include $16,927.28 for the outstanding invoice
balance and $5,000 for the incentive payment, in addition to prejudgment interest and
attorney’s fees. Mr. Song and Song & Song Corporation timely filed a notice of appeal.

                                   II. I SSUES P RESENTED

       The appellants present ten issues for review:

1.     Whether the trial court erred in granting Ms. Shin damages based on alleged contract
       modifications that were neither in writing nor signed by either party;
2.     Whether the trial court erred in granting the amount of damages that it awarded to Ms.
       Shin;
3.     Whether the trial court erred in granting damages to Ms. Shin without expert proof
       of her damages;
4.     Whether the trial court erred in granting damages to Ms. Shin given that she filed her
       countercomplaint with unclean hands;
5.     Whether the trial court erred in granting damages to Ms. Shin given that her actions
       demonstrated bad faith;
6.     Whether the trial court erred in dismissing Mr. Song’s claim for breach of
       contract/warranty;
7.     Whether the trial court erred in dismissing Mr. Song’s claim for
       fraud/misrepresentation;

                                              -8-
8.     Whether the trial court erred in dismissing Mr. Song’s claim for violation of the
       Consumer Protection Act;
9.     Whether the trial court erred in dismissing Mr. Song’s claim for money had and
       received as well as unjust enrichment; and
10.    Whether the trial court erred in dismissing Mr. Song’s claim for negligent and/or
       reckless acts or omissions.

We will address each of these issues, though not necessarily in the order presented.

                                III.   S TANDARD OF R EVIEW

        On appeal, a trial court's factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2011); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court's finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). “When issues of credibility and weight of testimony are involved, we afford
considerable deference to the trial court's findings of fact.” Larsen–Ball v. Ball, 301 S.W.3d
228, 235 (Tenn. 2010) (citing Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007)). “Because
trial courts are able to observe the witnesses, assess their demeanor, and evaluate other
indicators of credibility, an assessment of credibility will not be overturned on appeal absent
clear and convincing evidence to the contrary.” Hughes v. Metro. Gov't of Nashville &
Davidson County, 340 S.W.3d 352, 360 (Tenn. 2011) (citing Wells v. Bd. of Regents, 9
S.W.3d 779, 783 (Tenn. 1999)).

        The interpretation of a contract is a question of law. Security Fire Protection Co.,
Inc. v. Huddleston, 138 S.W.3d 829, 834 (Tenn. Ct. App. 2003). We review a trial court's
conclusions of law under a de novo standard upon the record with no presumption of
correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing
Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                       IV.   D ISCUSSION

                                  A.    Breach of Contract

       We begin by addressing Mr. Song’s contention that, contrary to the trial court’s
conclusion, it was Ms. Shin who breached the parties’ contract. He essentially claims that
she breached the contract by failing to discover the lack of fire dampers herself.

                                              -9-
        The parties’ written contract provided that Ms. Shin would provide the labor, services,
and/or materials to perform the construction work described on Exhibit A to the contract.
Relevant to this appeal, Exhibit A provided that the “heating and air will be completed by the
installation of a five ton condenser, duct-work, and restroom exhaust fan.” It did not mention
fire dampers. The written contract also stated, “The work upon the Subject Property will be
in accordance with drawings and specifications provided by Owner, which drawings and
specifications are hereby made a part of this Agreement.” The trial court noted that those
drawings and specifications consisted of the original building plans prepared by Mr. Scobey,
which were used for the construction of the building, and which were provided to Ms. Shin.
Thus, the trial court concluded that Ms. Shin was entitled to rely upon the building plans.
The court found it undisputed that according to the original building plan, the fire dampers
should have already been installed. The court also found that the ductwork where the
dampers should have been located had already been “brought down” to the first floor, and
that fire dampers cannot be seen after they are installed in the ductwork.

       The court found that the situation that arose in this case was governed by Paragraph
14 of the parties’ written contract, which stated:

       14. Concealed Conditions. If Contractor should encounter concealed
       conditions that were not reasonably anticipated by Contractor at the time of
       execution of this Construction Agreement, Contractor shall bring the existence
       and nature of such concealed conditions to the attention of Owner. If such
       concealed conditions prevent, preclude, or obstruct performance by Contractor
       of the work herein prescribed, or burden the scope of work as herein defined
       by requiring additional work by Contractor to address, correct, and/or rectify
       such concealed defects, then the scope of work and Contract Price as
       hereinabove defined shall be adjusted in accordance with [Paragraph] 10 to
       account for all courses of action necessary to address, correct, and/or rectify
       such concealed conditions.

The referenced Paragraph 10 stated:

       10. Allowances. If the Contract Price, as hereinabove defined, includes
       allowances of any kind or character, and the cost of performing the work
       covered by an allowance is either greater or less than the allowance, then this
       Agreement shall be increased or decreased accordingly. Unless otherwise
       requested by Owner in writing, Contractor shall use its judgment in
       accomplishing work covered by an allowance. If Owner requests that work
       covered by an allowance be accomplished by the Contractor in such a way that
       the cost will exceed the allowance, Contractor will be obligated to comply with

                                             -10-
        Owner's request only upon payment by Owner of the additional costs in
        advance.

The trial court concluded that the lack of fire dampers was clearly a concealed condition, and
it noted Ms. Shin’s testimony that she immediately notified Mr. Song of the problem. The
trial court expressly found that a discussion took place between Mr. Song and Ms. Shin in
which the parties agreed that this additional work needed to be done. The court went on to
find that “she did it and she billed him for it, and he didn’t pay for it.” The court noted that
the invoice provided by Ms. Shin showed that the additional unpaid charges “that were
incurred in correcting this matter” totaled $16,927.28, and it awarded that amount to Ms.
Shin, plus prejudgment interest.4

        With regard to the incentive agreement, the court found that Ms. Shin had passed the
final plumbing, electrical, and mechanical inspections before she was terminated, and that
the final inspection was “just a formality” at that point, as there was no basis for denying the
final permit once the other inspections had been completed. As a result, the court found that
Ms. Shin was also entitled to an award of $5,000 pursuant to the incentive agreement.

        We find the trial court’s analysis to be well-reasoned and thorough, and we agree with
its factual findings and ultimate conclusion that Ms. Shin did not breach the parties’ contract.
The contract provided that the work would be completed in accordance with drawings and
specifications provided by Mr. Song, and those drawings reflected that fire dampers had
already been installed during the first phase of construction. We agree with the trial court’s
conclusion that the “concealed condition” paragraph in the parties’ contract governed the
situation at hand. According to that provision, if Ms. Shin encountered a concealed condition
that was not reasonably anticipated by her at the time of execution of the contract, she was
required to bring it to the attention of Mr. Song, and it is undisputed that she did so. The
contract provided that if the concealed condition required additional work by Ms. Shin to
address or correct the concealed defect, “then the scope of work and Contract Price . . . shall
be adjusted in accordance with [Paragraph] 10 to account for all courses of action necessary
to address, correct, and/or rectify such concealed conditions.” Paragraph 10 similarly
provided that if the cost of performing work exceeded the allowance, the agreement “shall
be increased” accordingly. It further stated that unless otherwise requested by Mr. Song in


        4
          The court also noted Mr. Song’s contention that Ms. Shin should be liable for the damages caused
by the delays, but the court found that the following contract provision precluded such liability:

        13. Delay. Contractor shall be not be liable to Owner or any person, corporation, partnership
        or other legal entity claiming by, through, or under Owner for any delays in completion of
        this Agreement regardless of the cause, source, or nature of such delays.

                                                    -11-
writing, Ms. Shin was to use her judgment in accomplishing the work. It is undisputed that
Mr. Song did not make such a written request in this case. The trial court found that the
parties had a discussion in which they agreed that the additional work needed to be done. We
recognize that Paragraph 10 stated that if Mr. Song requested that work be accomplished in
such a way that its cost would exceed the allowance, Ms. Shin would only be obligated to
comply with his request upon payment of the additional costs in advance. Here, Ms. Shin
did not demand payment in advance, but instead billed Mr. Song for the additional work as
it was completed. However, there is nothing in the contract to prevent her from doing so.
She simply chose not to exercise her right to demand payment in advance. This does not
mean that she was not entitled to payment for the additional work. The aforementioned
provisions had already declared that the contract price “shall be adjusted . . . to account for
all courses of action necessary to address, correct, and/or rectify” the concealed condition.

        On appeal, Mr. Song cites several other provisions of the contract, which, he contends,
entitle him to relief. The first is Paragraph 9, which stated:

       9. Extra Work and Deviations from Original Contract Work. Should Owner,
       construction lender if any, or any public or governmental agency or inspector
       direct any deletion from, modification of, or addition to the work as
       hereinabove specified, the costs of such deletion(s), modification(s), or
       addition(s) shall be added to or deducted from the Contract Price, as
       hereinabove defined, as the circumstances dictate. Any and all deletions from,
       modifications of, or additions to the scope of work prescribed by this
       Construction Agreement together with the adjustment to Contract Price shall
       be made or otherwise memorialized in a writing signed by Owner and
       Contractor prior to the arias (sic) of any obligation of whatsoever kind or
       character on the part of the Contractor to recognize, honor, or adhere to such
       changes.

We find that this provision actually supports Ms. Shin’s position in this case. Like the
previously discussed paragraphs, this section provides that the cost of additions to the work
“shall be added” to the contract price, as the circumstances dictate. It also provides that
additions to the work, together with the adjustment to the contract price, shall be made in
writing prior to the arising of any obligation on the part of Ms. Shin to adhere to the changes.
Again, Ms. Shin chose not to exercise this right to demand a written contract modification,
but that does not mean that she is not entitled to payment for the additional work she
performed.

       Mr. Song also cites Paragraph 20 of the contract, which states, “With respect to all
matters not governed by [Paragraph] 9 hereof, this Agreement may not be modified except

                                              -12-
by separate written instrument executed by Owner and Contractor.” He basically argues that
because the written contract only required him to pay $90,000, he cannot now be required
to pay any additional amounts. He argues that because Ms. Shin did not sign the incentive
agreement, he cannot be forced to pay the $5,000 incentive payment. He also asks for a
return of the $8,904.90 he paid to Ms. Shin prior to the termination of the contract because,
he contends, there is no signed writing requiring his payment of such. This alleged
“overpayment” by Mr. Song forms the basis of his claims for “money had and received” and
unjust enrichment.

       We disagree with Mr. Song’s contention that there is no signed writing requiring him
to pay more than $90,000. The concealed condition paragraph of the parties’ written
contract, along with the other provisions previously discussed, clearly addressed the situation
in which additional work was to be performed, and provided that the contract price would
be increased accordingly. But, even if we characterize the additional work, and the incentive
agreement, as modifications to the original contract, they are nevertheless enforceable
because both parties clearly agreed to them, despite the lack of an additional signed writing.
As this Court recently explained in Lancaster v. Ferrell Paving, Inc., No. W2010-02632-
COA-R3-CV, 2011 WL 4357308, at *3 (Tenn. Ct. App. Sept. 20, 2011) perm. app. denied
(Tenn. Feb. 15, 2012):

       After a written contract is made, it may be modified by the express words of
       the parties in writing or by parol, where both parties consent to such
       modifications. In re Estate of Nelson, No. W2006-00030-COA-R3-CV, 2007
       WL 851265, at *18 (Tenn. Ct. App. Mar. 22, 2007) (citing Galbreath v.
       Harris, 811 S.W.2d 88, 91-92 (Tenn. Ct. App. 1990)). “Generally, Tennessee
       courts follow the rule that ‘allows contracts to be orally modified even if the
       contracts specifically state that the contract can only be modified in writing.’”
       Markow v. Pollock, No. M2008-01720-COA-R3-CV, 2009 WL 4980264, at
       *8 (Tenn. Ct. App. E.S. Dec. 22, 2009) (quoting Moulds v. James F. Proctor,
       D.D.S., P.A., 1991 WL 137577, at *3 (Tenn. Ct. App. W.S. July 29, 1991)).
       “Even where the written contract prohibits oral modifications of the
       agreement, oral alterations will still be given effect if otherwise valid, as ‘men
       cannot tie their hands or bind their wills so as to disable them from making any
       contract allowed by law, and in any mode in which it may be entered into.’”
       Estate of Nelson, 2007 WL 851265, at *18 (quoting Co–Operative Stores Co.
       v. U.S. Fid. Guar. Co., 137 Tenn. 609, 195 S.W. 177, 180 (Tenn. 1917)). “A
       party's agreement to a modification need not be express, but may be implied
       from a course of conduct; this is true even where the agreement expressly
       specifies, as in this case, that the parties may only modify the agreement in
       writing.” Constr. Crane & Tractor, Inc. [v. Wirtgen Am., Inc., No. M2009-

                                             -13-
       01131-COA-R3-CV, 2010 WL 1172224, at *10 (Tenn. Ct. App. Mar. 24,
       2010)] (citing Galbreath, 811 S.W.2d at 91; Cooperative Stores Co., 195 S.W.
       at 180).

Because the parties here clearly agreed for Ms. Shin to perform the additional work, and they
agreed to the subsequent incentive agreement, those agreements are valid and enforceable,
and Mr. Song may not avoid his obligations thereunder simply because of the lack of an
additional signed writing.

       We note that Mr. Song also argues that the statute of frauds bars Ms. Shin from
recovering in this case. He contends that “[t]he interior renovations contract at bar is a
contract that could be performed by Ms. Shin in less than one year and thus is among the
category of contracts that must be in writing signed by the party to be charged.” Contrary to
Mr. Song’s assertion, however, the statute of frauds applies to a “contract which is not to be
performed within the space of one (1) year.” Tenn. Code Ann. § 29-2-101(a)(5). Therefore,
his argument on this issue is without merit.

       Finally, with regard to the enforceability of the contract, Mr. Song argues that his
agreement to pay “whatever would be reasonable” for the additional work is not sufficiently
definite to be enforced, and also fails for lack of consideration. We find that the additional
work performed by Ms. Shin constituted adequate consideration, and that the contract
provisions discussed at length earlier in this opinion provide sufficiently definite terms for
the agreement to be enforced.

                              B.    Mr. Song’s Other Claims

       Mr. Song argues on appeal that the trial court erred in dismissing his claims against
Ms. Shin for fraud/misrepresentation, violation of the Tennessee Consumer Protection Act,
and negligent and/or reckless acts or omissions. Mr. Song’s allegations that formed the basis
for these claims arose out of Ms. Shin’s conduct in the performance of the contract and
mirrored his allegations on the breach of contract claim. Finding no evidence to support Mr.
Song’s allegations relative to these claims, we affirm the trial court’s decision to dismiss
them. We likewise find no bad faith or unclean hands on the part of Ms. Shin that would
preclude her from recovering under the parties’ contract.

                                       C.   Damages

      Mr. Song’s next argument on appeal is that the trial court erred in awarding contract
damages to Ms. Shin because she did not present expert testimony regarding the amount of
her damages. Instead, she testified herself as to remaining balance that she invoiced to Mr.

                                             -14-
Song, which he refused to pay. Mr. Song did not raise this argument in the trial court, but
on appeal, he relies upon the case of Walls v. Conner, No. E2007-01917-COA-R3-CV, 2008
WL 4735311 (Tenn. Ct. App. Oct. 27, 2008). In Walls, a trial court refused to allow a
contractor’s expert witnesses to testify due to his repeated failure to respond to discovery,
and the Court of Appeals affirmed. Walls did not state that expert testimony is required in
a construction contract case. “There is a seemingly endless list of areas in which expert
testimony has been admitted. This list will continue to grow as the complexity of our
civilization increases, as knowledge burgeons, and as specialization grows.” Robert E.
Burch, Trial Handbook for Tenn. Lawyers § 24:17 (2012 ed.). However, Mr. Song has failed
to cite any requirement, established by a court or by the legislature, that expert testimony
must be presented in order to prove a contractor’s damages in a breach of contract case.
Therefore, this issue is without merit. Compare Jordan v. Clifford, No. E2009-01121-
COA-R3-CV, 2010 WL 2075871, at *5 (Tenn. Ct. App. May 25, 2010) (rejecting the
contention that a breach of contract claim against an attorney cannot be sustained without
expert proof); Gamble v. Perra, No. E2006-00229-COA-R3-CV, 2007 WL 541818, at *4
(Tenn. Ct. App. Feb. 22, 2007) (stating that the plaintiff’s breach of contract claim against
a physician did not require expert proof).

        Next, we will address Mr. Song’s contention that the trial court granted an “excessive”
amount of damages to Ms. Shin. As support for this argument, Mr. Song cites Paragraph 12
of the parties’ contract, which provides that if, after executing the agreement, Mr. Song
refused to permit Ms. Shin to proceed with the construction work, liquidated damages equal
to thirty percent of the contract price were to be awarded to Ms. Shin. Mr. Song contends
that the liquidated damages provision is inapplicable to this situation. Before the trial court,
Ms. Shin requested an award of liquidated damages pursuant to this provision, in addition
to the unpaid contract balance and incentive payment, but the trial court did not make such
an award in its final order.5 Because liquidated damages were not awarded to Ms. Shin, Mr.
Song’s argument with regard to this issue is without merit.

        Next, Mr. Song argues that this Court should overturn the trial court’s award of
attorney’s fees to Ms. Shin, basically because he contends that she should not have prevailed
on the substantive issues at trial. Because we have affirmed the trial court’s order in all other
respects, we also affirm its award of attorney’s fees. The contract provided that in the event
that either party instituted judicial proceedings to secure performance of the obligations set
forth in the contract, the prevailing party was entitled to recover reasonable attorney’s fees.
Pursuant to this provision, we find that Fine Art Construction Company, LLC is entitled to
recover its reasonable attorney’s fees incurred on appeal, and we hereby remand this matter
to the chancery court for the determination of a reasonable award.

       5
           Ms. Shin does not appeal that decision.

                                                     -15-
        Finally, Ms. Shin has requested an award of postjudgment interest. Tennessee Code
Annotated section 47-14-122 provides that “[i]nterest shall be computed on every judgment
from the day on which the jury or the court, sitting without a jury, returned the verdict
without regard to a motion for a new trial.” This statute is mandatory, and courts are not free
to ignore it. State v. Thompson, 197 S.W.3d 685, 693 (Tenn. 2006). “The failure of a trial
court's judgment or decree to specify post-judgment interest does not abrogate the obligation
imposed by the statute.” Id. In fact, “a plaintiff is not required to move for an award of
post-judgment interest in the trial court as the issue does not become ripe until the conclusion
of the appellate process.” Ali v. Fisher, 145 S.W.3d 557, 565 (Tenn. 2004) (citing Tenn. R.
App. P. 41).

       “A party's right to post-judgment interest is based on its entitlement to the use
       of proceeds of a judgment. The purpose of post-judgment interest is to
       compensate a successful plaintiff for being deprived of the compensation for
       its loss between the time of the entry of the judgment awarding the
       compensation until the payment of the judgment by the defendants.
       Accordingly, a party who enjoys the use of funds that should have been paid
       over to another party should pay interest on the retained funds.”

Thompson, 197 S.W.3d at 693 (quoting Varnadoe v. McGhee, 149 S.W.3d 644, 649 (Tenn.
Ct. App. 2004)). In accordance with these principles, Fine Art Construction Company, LLC
is entitled to postjudgment interest from the date of the trial court’s judgment, which is
hereby modified to include such an award.

                                      V.   C ONCLUSION

      For the aforementioned reasons, the decision of the chancery court is hereby affirmed
as modified, and this matter is remanded for further proceedings consistent with this opinion.
Costs of this appeal are taxed to the appellants, Jin Y. “Jim” Song and Song & Song
Corporation, and their surety, for which execution may issue if necessary.

                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.




                                              -16-
