                                                                                         07/30/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  July 7, 2020 Session

                  JULIE CLARK v. JEFFREY GIVENS, ET AL.

                  Appeal from the Circuit Court for Dickson County
                     No. 2017-CV-50 Larry J. Wallace, Judge
                      ___________________________________

                           No. M2019-01693-COA-R3-CV
                       ___________________________________


This case involves an oral contract for construction services at a residential home. The
parties agreed for the contractor to make various improvements to the property, including
painting; repairing cabinets; and replacing countertops. The parties dispute the agreed-
upon time of completion. Unbeknownst to the homeowner at the time of contracting, the
contractor had several severe physical ailments. On multiple occasions, the homeowner
expressed her displeasure with the contractor’s lack of progress. Eventually, the
homeowner informed the contractor that a third party would complete the majority of the
agreed-upon services. The homeowner initiated this case by filing suit against the
contractor and his wife, alleging violations of the Tennessee Consumer Protection Act.
The contractor and his wife filed a counter-claim, alleging breach of contract by the
homeowner. After a bench trial, the trial court rescinded the contract, finding a mutual
mistake regarding the length of the contract term, and dismissed the parties’ claims. All
parties appealed. We reverse the trial court’s decision and remand for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
                                  and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY W. ARMSTRONG, JJ., joined.

Julie Clark, White Bluff, Tennessee, Pro Se.

George E. Copple, Brentwood, Tennessee, for the appellees, Jeffrey Givens and Wanda
Givens.


                                       OPINION
                              I.       FACTS & PROCEDURAL HISTORY

      This case stems from an oral contract for “construction services” at a property
owned by Julie Clark, a veterinarian, at 269 Harpeth View Trail, Kingston Springs,
Tennessee (“the property”). While the events, dates, and specifics of the agreement have
been heavily disputed, our decision does not hinge on factual intricacies.

       After purchasing a new home, Dr. Clark searched for quality workers to make
improvements on her current property before placing it for sale. On January 12, 2016, Dr.
Clark spoke with Wanda Givens about whether her husband, Jeffrey Givens, would be able
and willing to perform the work.1 Mrs. Givens indicated that Mr. Givens was a quality
worker and could “do anything” she needed. The next day, Dr. Clark and Mr. Givens met
at her property in Kingston Springs to discuss the initial work he was to perform. Mr.
Givens performed minor plumbing work to Dr. Clark’s satisfaction.2 Because Dr. Clark
was satisfied with Mr. Givens’s initial performance, she decided to proceed with having
him perform other tasks.

       On January 14, 2016, Dr. Clark and Mr. Givens met at the property to discuss the
additional duties he would perform. The two walked through the house as Dr. Clark
described various improvements that she was contemplating. Both parties agree that on
January 14, they formed an oral contract for Mr. Givens to: (1) paint the entire interior of
the three-story house; (2) remove and repair kitchen cabinets; (3) strip, prime, and paint
cabinets; and (4) replace two bathroom countertops.

        Dr. Clark claims that Mr. Givens gave individual bids on each task for her to accept
individually. She also claims that those four tasks were the only ones to which she agreed.
According to Dr. Clark, the bids Mr. Givens gave for the agreed-upon tasks totaled $9,775.
Mr. Givens claims that they also agreed for him to pressure wash the garage and driveway,
paint the garage floor with epoxy, and paint the outside porch and deck. He also contends
that, rather than making individual bids, he gave a single quote of $11,575 for all of the
tasks—including those that are disputed. The parties disagree on the time of completion
for the contract. According to Dr. Clark, Mr. Givens stated he would complete the work
in two weeks. While she did not set a required end date or state that “time [was] of the
essence,” she claims to have indicated she needed the work done in a timely manner. In
contrast, Mr. Givens claims that he estimated it would take between four and six weeks,
but that he did not promise it would be done in that time. Mr. Givens testified that he
believed there was no strict timeline and that he was afforded “as much time as [he] needed
to do a good job.” Dr. Clark gave Mr. Givens a check for $2,500 as a deposit and shortly

        1
            Previously, Dr. Clark had learned that Mr. Givens performed work at the daycare where her
grandson attended.
          2
            Mr. Givens received payment for the plumbing work. This initial agreement is not the subject of
this suit.
                                                  -2-
thereafter he began working.

        Unbeknownst to Dr. Clark at the time of contracting, Mr. Givens had suffered from
significant physical ailments since 2011. In 2011, Mr. Givens was in a work-related
accident that caused him to lose almost all function in his left arm, wrist, and shoulder.
Along with the inability to use his left arm, at times, Mr. Givens suffers serious headaches
and has trouble seeing out of his left eye. Mr. Givens’s physical limitations left him unable
to work significantly since his accident. When asked why he did not tell Dr. Clark about
his injuries, Mr. Givens responded, because “[Dr. Clark] did not ask.” Later, he admitted
that she would not have known about his injuries unless he told her and that if he did, she
would not have hired him.

        Dr. Clark and Mr. Givens also disagree on what transpired while he performed work
at the property. On January 18, 2016, Dr. Clark checked on the property and found some
progress.3 On January 27, she went to the property a second time and was concerned by
the lack of progress. When she questioned him regarding the work, Dr. Clark asserts that
he informed her, for the first time, of his physical ailments. According to Dr. Clark, Mr.
Givens stated he had to miss work on prior occasions due to doctors’ appointments and
meetings with his attorney for an ongoing worker’s compensation suit related to his
accident in 2011. She testified that he apologized, stated that he desperately needed the
work, and promised to make significant progress the following week. Dr. Clark
begrudgingly gave Mr. Givens an additional $2,000 to continue working.

        On February 2, 2016, Dr. Clark returned to the property and found most of the work
still unfinished, with only one coat of paint on approximately one-third of the interior. Dr.
Clark became upset with the lack of progress and what she believed was poor quality of
work. She testified that he apologized again and that she gave him one more week to make
progress before she would hire another painter. Six days later, Dr. Clark went to the
property and found no progress since her previous visit.

       Dr. Clark and Mr. Givens met at the house on February 9, 2016. Displeased with
the quality of work and lack of progress, Dr. Clark informed Mr. Givens that she would be
hiring someone else to finish the interior painting. The parties agreed that Mr. Givens
would complete the remaining jobs, including painting the doors and restoring cabinets.
Dr. Clark asserts that Mr. Givens was to complete this work to help earn the $4,500 that
she previously paid. Mr. Givens disagrees. Instead, he testified that he agreed to complete
the remaining jobs to help salvage the contract rather than abandon it. He asserts that the
February 9 interaction was the first time Dr. Clark informed him of her frustrations and


        3
         Throughout this case, Mr. Givens has given inconsistent days for when he started to work on the
property. At trial, he testified that the two entered into the verbal contract on January 14, 2016, and he
began working on January 18.
                                                  -3-
intent to hire another party.4

       Dr. Clark testified that the final interaction at the property occurred on February 23
(36 days after Mr. Clark began working). She stated that she terminated the contract on
this date after she became convinced that the work would not be completed in a timely
manner. Disagreeing with her assessment, Mr. Givens testified that Dr. Clark terminated
the entire contract on February 15. Despite his physical limitations, Mr. Givens believes
that he could have completed the contract if he was allowed to do so. He estimated that he
would have needed approximately three to four additional weeks to finish all of the tasks,
including the interior painting.5

      Later, Dr. Clark spoke with Mrs. Givens and asked why she was not told about Mr.
Givens’s injuries. According to Dr. Clark, Mrs. Givens refused to answer and stated that
she does not get involved with her husband’s business.

      In February 2017, Dr. Clark filed suit against Mr. and Mrs. Givens in the General
Sessions Court of Dickson County. Dr. Clark asserted that she was owed a refund of
$3,700 on the contract for services that were never completed.6 Mr. and Mrs. Givens
answered and filed a counter-claim for breach of the oral contract, asserting $4,500 in
damages. The General Sessions Court found in favor of Mr. and Mrs. Givens, awarding
them $5,075 in damages. Dr. Clark appealed to the Circuit Court.

       After her appeal from General Sessions, Dr. Clark amended her complaint. In her
amended complaint, Dr. Clark asserted violations of the Tennessee Consumer Protection
Act (“TCPA”) as grounds for recovery. In doing so, she argued that Mr. and Mrs. Givens
fraudulently misrepresented that Mr. Givens was capable and able-bodied, “never once
alluding to the fact that he was severely disabled.” Dr. Clark asked for treble damages
under the TCPA that totaled $13,500.

       The case was heard before the Circuit Court on May 7, 2019. Mrs. Givens, Dr.
Clark, and Mr. Givens all testified. On August 21, 2019, the trial court entered its final
order. The court found that on January 14, 2016, Dr. Clark and Mr. Givens formed an oral
contract for him to perform contracting services at her property. It also found that there
was no “time is of the essence” clause in the oral contract and that there was no agreement
as to the time of completion. As a result of the parties’ disagreement on the time for
completion, the court found there was a mutual mistake in forming the contract. The court

        4
          At trial, there were varying accounts of when Dr. Clark hired replacement workers, and when they
began. One dispute involved Dr. Clark’s son-in-law working on the property, performing work that Mr.
Givens believed he was hired to perform.
        5
          We note that this additional time would place Mr. Givens’s completion beyond the four-to-six
week “estimate” that he allegedly gave Dr. Clark at the outset of the contract.
        6
          The property is located in Cheatham County rather than Dickson, but Mr. and Mrs. Givens waived
any potential venue issue.
                                                  -4-
rescinded the contract, dismissed all claims, and dismissed Mrs. Givens as a party since
she was not a party to the rescinded contract. Further, the court found that the reasonable
value of the services rendered by Mr. Givens was $4,500, which was the amount that Dr.
Clark previously paid Mr. Givens. Therefore, neither party was awarded an additional
sum. Both parties timely appealed.

                                 II.     ISSUES PRESENTED

      Dr. Clark raises four issues on appeal, which we have reworded herein:

      1. Whether the trial court erred in not finding that the defendants intentionally
         misrepresented Mr. Givens’s services;

      2. Whether the trial court gave undue deference to the defendants’ testimony,
         resulting in it awarding them damages;

      3. Whether the trial court erred in deciding not to apply the TCPA for the
         defendants’ intentional misrepresentation; and

      4. Whether the trial court erred in denying the plaintiff proper compensation,
         including treble damages and court costs.

      Mr. and Mrs. Givens present one issue in their cross-appeal, which we have also
reworded:

      1. In the absence of a “time is of the essence” clause, whether the trial court erred
         in dismissing the parties’ claims and rescinding the oral contract for mutual
         mistake as to the time of completion.

      For the reasons stated herein, we reverse the Circuit Court’s decision and remand.

                               III.     STANDARD OF REVIEW

       On appeal, we review the trial court’s findings of fact de novo with a presumption
of correctness. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010).
Questions of law are also reviewed de novo but with no presumption of correctness.
Eberbach v. Eberbach, 535 S.W.3d 467, 473 (Tenn. 2017) (citing Barnes v. Barnes, 193
S.W.3d 495, 498 (Tenn. 2006); Taylor v. Fezell, 158 S.W.3d 352, 357 (2005)). Interpreting
the meaning of a contract is a legal issue that is afforded no presumption of correctness.
See Lazar v. J.W. Aluminum, 346 S.W.3d 438, 442 (Tenn. 2011); Barnes, 193 S.W.3d at
498.

                                       IV.    DISCUSSION
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        Before we address our decision in this case, we assure Dr. Clark that, as a pro se
litigant, her arguments have been given fair consideration.

             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 Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 551 (Tenn. Ct. App. 2015).

        In contracts involving “construction services,” such as the one at bar, a party’s
failure to complete the “project within a time for completion does not constitute material
breach absent a provision making time of the essence.” Madden Phillips Constr., Inc. v.
GGAT Dev. Corp., 315 S.W.3d 800, 818 (Tenn. 2009) (emphasis added) (citing Shepherd
v. Perkins Builders, 968 S.W.2d 832, 833 (Tenn. Ct. App. 1997)). As this Court has
previously explained, “whether failing to complete performance on time constitutes a
material breach depends on whether ‘time is of the essence’ with respect to the contract.”
Groner v. On-Site Grading, Inc., No. E1999-00219-COA-R3-CV, 2000 WL 502843, at *4
(Tenn. Ct. App. Apr. 28, 2000). A time of completion clause is not the same as a “time is
of the essence” provision. See Madden Phillips Constr., Inc., 315 S.W.3d at 818. Simply
agreeing on a date or time of completion, without more, will not establish that time was of
the essence in a construction contract. Sanders v. Breath of Life Christian Church, Inc.,
No. W2010-01801-COA-R3-CV, 2012 WL 114279, at *18 (Tenn. Ct. App. Jan. 13, 2012)
(citing Madden Phillips Constr., Inc., 315 S.W.3d at 818).

       A party may prove the existence of a “time is of the essence” provision by
“stipulation, a manifestation of intention from the contract or subject matter involved, or
an implication from the nature of the contract or circumstances of the case.” Madden
Phillips Constr., Inc., 315 S.W.3d at 818 (quoting Groner, 2000 WL 502843, at *4). See
also Shepherd, 968 S.W.2d at 833. In determining the existence of a “time is of the
essence” provision, the court should look at the entire agreement. See Claiborne Hauling,
LLC v. Wisteria Park, LLC, No. E2009-02667-COA-R3-CV, 2010 WL 3219467, at *7
(Tenn. Ct. App. Aug. 16, 2010). Tennessee courts have consistently held that, generally,
time is not of the essence in construction contracts. See, e.g., Madden Phillips Constr.,
Inc., 315 S.W.3d at 818; Classic City Mech., Inc. v. Potter S. E., LLC, No. E2015-01890-
COA-R3-CV, 2016 WL 5956616, at *11 (Tenn. Ct. App. Oct. 14, 2016); Groner, 2000
WL 502843, at *4; Shepherd, 968 S.W.2d at 833.
                                            -6-
        Our scope of review in this appeal pales in comparison to the multitude of issues
presented to the trial court. As we previously stated, the trial court rescinded the contract
due to the parties’ disagreement on time of completion. Generally, rescission is not favored
by Tennessee Courts. Pugh’s Lawn Landscape Co., Inc. v. Jaycon Dev. Corp., 320 S.W.3d
252, 261 (Tenn. 2010) (citing Klosterman Dev. Corp. v. Outlaw Aircraft Sales, Inc., 102
S.W.3d 621, 631 (Tenn. Ct. App. 2002)). “A court may not rescind a contract for mistake
unless the mistake is innocent, mutual, and material to the transaction and unless the
complainant shows an injury.” Id. (emphasis added). In its final order, the trial court
summarily found that the parties’ “mistake” was material.

       From our review, we find that the trial court’s decision to rescind the parties’ oral
contract and dismiss the case due to a “mutual mistake” was reversible error. The record
is devoid of proof that shows the parties’ oral contract included a “time is of the essence”
provision. In fact, the trial court expressly found that there was no such provision agreed
to in the contract. In the absence of a time is of the essence provision, the parties’
disagreement or “mistake” as to the time of completion was immaterial to the construction
contract. See Madden Phillips Constr., Inc., 315 S.W.3d at 818. Without the existence of
a material mistake, the contract must be given effect. See Pugh’s Lawn Landscape Co.,
320 S.W.2d at 261; Gibbs v. Gilleland, No. M2015-00911-COA-R3-CV, 2016 WL
792418, at *7 (Tenn. Ct. App. Feb. 29, 2016) (citing Robinson v. Brooks, 577 S.W.2d 207,
209 (Tenn. Ct. App. 1978)). Therefore, the court erred in rescinding the oral contract.

        In finding that the trial court erred in rescinding the contract, we are unable to
address the remaining questions on appeal. Despite the trial court’s repeated commentary
that this case presents difficult questions of law and fact, it is the appropriate forum for
determining the remaining issues in this case. As a result, we reverse the trial court’s
decision to rescind the construction contract and remand with instructions to make the
necessary findings of fact and conclusions of law on the parties’ claims.

                                     V.     CONCLUSION

       We reverse the trial court’s decision to rescind the oral contract and to dismiss the
parties’ claims. We remand for further proceedings. Costs of this appeal are taxed equally
between the parties.


                                                  _________________________________
                                                  CARMA DENNIS MCGEE, JUDGE




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