                    IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT NASHVILLE
                   ______________________________________________

JERRY T. BEECH         )
CONCRETE CONTRACTOR, INC.                  )
                                           )
      Appellant,                           )
                                           ) Davidson No. 93-3316-1
v.                                         )
                                           ) C.A. No. 01A01-9507-CH-00308
MARY HENDERSON,

      Appellee.
                                           )
                                           )
                                           )
                                                                           FILED
                                                                               June 7, 1996

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
                APPEAL FROM THE CHANCERY COURT, PART I
           THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



Maclin P. Davis, Jr.
Nashville, Tennessee
Attorney For Appellee



Joseph K. Dughman
Bruce, Weathers, Corley, Dughman & Lyle
Nashville, Tennessee
Attorney for Appellant




           AFFIRMED IN PART, REVERSED IN PART, AND REMANDED



OPINION FILED:



                                           WILLIAM H. WILLIAMS, SENIOR JUDGE



CONCUR:

HIGHERS, J.

FARMER, J.


                              PRELIMINARY STATEMENT

      This case concerns the payment on a contract for installation of a concrete driveway. Jerry

                                               1
T. Beech Concrete Contractor, Inc. (hereinafter, "Beech") filed suit against Mary Henderson

(hereinafter, "Henderson") on a sworn account for nonpayment of the contract price for installing

a concrete driveway and a box drain. Following a bench trial, the trial court found that Beech and

Henderson had contracted to install a driveway and a box drain, but the trial court determined that

Beech had installed the driveway in an unworkmanlike manner causing it to have defects. As a

result, the trial court awarded Beech the contract price offset by the amount of property damage

Henderson allegedly suffered. Beech appealed, and the appeal is properly before this Court. We

affirm in part and reverse in part.



                                             ISSUES

       Beech’s issues are as follows:

               I.    Whether the evidence preponderates against the Chancellor's
               finding that Beech installed the driveway in an unworkmanlike
               manner.

               II. Whether the evidence preponderates against the Chancellor's
               finding that Beech orally agreed to insure that rainwater would not
               accumulate on the driveway.

               III. Whether the Chancellor erred in failing to find that Beech and
               Henderson had entered into an oral contract providing for liquidated
               damages of $700.00 if repair of the footprints failed to satisfactorily
               cure the defect.

               IV. Whether the Chancellor erred in awarding damages based on
               Henderson's testimony regarding the diminution in the value of the
               property.

               V. The Chancellor should have awarded pre-judgment interest
               since the damages of $8,505.00 are certain.


       Henderson's issues are as follows:

               VI. Whether Beech's complaint should be dismissed and the
               judgment awarded Beech in the amount of $2,005 should be set aside
               (a) because the false testimony of Beech's president constituted
               unclean hands on the part of Beech; (b) because Beech was a
               subcontractor by contract with Mrs. Armistead and is not entitled to
               a personal judgment against Mrs. Henderson; and (c) because the cost
               of repairing the defective driveway exceeded the contract price.

               VII. Whether the amount of the judgment should be reduced by
               $555, which was included in the judgment for the box drain and
               culvert because (a) there was no agreement to pay that amount for the
               box drain and culvert; (b) there was no evidence that the box drain
               and culvert were installed by Beech; and (c) it was established by
               undisputed evidence that Beech removed the culvert from Mrs.


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                Henderson's property.

                                   STATEMENT OF FACTS

       Appellee Henderson resides in a home located at the intersection of Tyne and Lynwood

Boulevards in Nashville, Tennessee. In the Spring of 1993, Henderson contracted with Tara

Armistead (hereinafter, "Armistead") to design a driveway and a landscape plan for her property.

One of the purposes of the driveway and landscape plan was to divert water away from the house.

The water was flowing onto the property from Tyne and Lynwood Boulevards. After developing

a landscaping plan, Armistead's office notified Clayton King (hereinafter, "King"), Beech's president,

and asked him to provide an estimate for the driveway, box drain and culvert. After reviewing the

blueprint plans provided by Armistead, Beech provided an estimate of $7,950.00 for installation of

the driveway.    Beech also submitted an estimate for a culvert to be installed at a cost of $340.00

and a box drain and grate to be installed at a cost of $430.00. Beech's estimate was submitted to

Armistead who presented it to Henderson.        Henderson agreed to the estimate, and Armistead

contacted King and told him that Henderson wanted Beech to do the work.

       Beech installed the driveway and box drain in July, 1993. During the course of the project,

Henderson objected to some prints from a workman's shoe that had been made in the wet concrete

along the driveway. Beech offered to repair the shoeprints, but Henderson wanted the entire section

of concrete replaced or $1,000 deducted from the cost of the project. Eventually, Beech repaired the

shoeprints and finished the project. Henderson found the repairs to the driveway to be unsightly and

unsatisfactory. Further, Henderson found that the driveway did not drain properly. Instead, the

driveway retained water in some sites causing pooling for up to one hour following a rainstorm.

Because of the shoeprints and the drainage problems, Henderson refused to pay Beech for the work

done to her property.

       On November 10, 1993, Beech filed a complaint on sworn account against Henderson to

recover $8,505.00 for the installation of the concrete driveway and the box drain. In her Answer,

Henderson alleged that she never contracted with Beech for installation of a driveway and box drain,

and that Beech had contracted with Armistead, not Henderson. Subsequently, Beech amended its

complaint to pray for pre-judgment interest and to add Armistead as a defendant. Beech alleged that

Armistead acted as an agent for Henderson in contracting with Beech for the installation of the

driveway and that Henderson was, thus, liable for the payment.

                                                  3
       A trial was held in this cause in the Chancery Court of Davidson County in December, 1994.

Beech's claims against Tara Armistead were dismissed at the conclusion of the Plaintiff's proof. On

January 11, 1995, the trial court entered a memorandum making its findings of fact and conclusions

of law wherein the Chancellor found that there was a contract between Beech and Henderson to

install a driveway for $7,950.00 and a culvert and box drain for an additional $555.00. The trial

court further found that Beech installed the driveway in an unworkmanlike manner resulting in

$6,500.00 in damages to Henderson's property. Therefore, the trial court awarded a judgment to

Beech in the amount of $2,005.00, which is the contract price of $7,950.00 minus $6,500.00 in

damages to Henderson's property, plus $555.00 for installation of the box drain. The trial court did

not grant the claim for pre-judgment interest and the costs were split equally between the parties.

An Order consistent with the opinion was entered on January 26, 1995. After timely filing a motion

to alter or amend the judgment, which the trial court later denied, Beech timely filed a notice of

appeal on April 12, 1995.

       This Court is bound by Rule 13(d), T.R.A.P., upon our review of this record.

               “Unless otherwise required by statute, review of findings of fact by
               the trial court in civil actions shall be de novo upon the record of the
               trial court, accompanied by a presumption of the correctness of the
               finding, unless the preponderance of the evidence is otherwise.” In
               a de novo review, the parties are entitled to a reexamination of the
               whole matter of law and fact and this court should render the
               judgment warranted by the law and the evidence. Thornburg v.
               Chase, 606 S.W.2d 672 (Tenn. App. 1980); American Buildings Co.
               v. White, 640 S.W.2d 569 (Tenn. App. 1982); Tennessee Rules of
               Appellate Procedure, Rule 36. We note that no such presumption
               attaches to conclusions of law. See Adams v. Dean Roofing Co., 715
               S.W.2d 341, 343 (Tenn. App. 1986).


Carter v. Krueger, 916 S.W.2d 932, 935 (Tenn. App. 1995).



                                         CREDIBILITY

       In order to properly consider the merits of this appeal, it is necessary for the Court first to

dispose of some issues raised by the Appellee. The first issue raised by Appellee is that the

judgment should be set aside and Beech's complaint should be dismissed because Beech had unclean

hands. Specifically, Henderson maintains that Clayton King testified that the only prints made in

the wet concrete were those of the toe of a shoe about three to three and one-half inches long.

Henderson asserts that this testimony is contradicted by King's own answers to interrogatories, as

                                                  4
well as the testimony offered by numerous other witnesses who all testified that some of the prints

were those of an entire shoe.

        Henderson relies upon this Court's decision in Inman v. Inman, 14 T.A.M. 47-5 (Tenn. App.

1989), modified on other grounds and affirmed, Inman v. Inman, 811 S.W.2d 870 (Tenn. 1991), to

support the proposition that the complaint of a perjurer should be dismissed and any judgment

entered in his favor be reversed. Upon examination of the record in this appeal, it does not appear

to the Court that there are inconsistencies between Clayton King's testimony and his answers to

interrogatories. King testified that the prints were not full footprints, and his answer to the

interrogatory stated that the prints were ". . . [T]hree partial footprints involving the front portion of

the foot. . . ." There appears to be no inconsistency among King's statements to support a finding

of perjury, and the trial court did not find that perjury had been committed. Accordingly, we decline

to dismiss the cause on this issue.



                                             CONTRACT

        1. The evidence preponderates in favor of the trial court's finding that a contract existed

between Beech and Henderson.

        The second of Appellee's issues to be addressed is whether a contract existed between Beech

and Henderson. Henderson asserts that Tara Armistead was an independent contractor who solicited

and accepted the bid from Beech. Henderson also claims that the only contract that existed was one

between Armistead as the primary contractor and Beech as the subcontractor. Therefore, Henderson

maintains that there was no privity of contract between Beech Contract and her, and that Beech is

not entitled to a personal judgment against her.

        The trial court expressly found that Armistead, as Henderson's agent, contracted with Beech

to install a driveway. Thus, the trial court found that Beech and Henderson had, in fact, entered into

a valid and enforceable contract. We will not disturb the trial court's determination as to this issue.

Whether an agency has been created is to be determined by the relations of the parties as the

relations in fact exist under their acts, regardless of whether the parties understand there to be an

agency. Rich Printing Co. v. McKellar's Estate, 330 S.W.2d 361, 376 (Tenn. App. 1959); see also

Smith v. Tennessee Coach Co., 194 S.W.2d 867, 869 (Tenn. 1946). There is sufficient evidence in

the record to indicate that Henderson gave Armistead the authority to hire a contractor to perform

                                                    5
the project. Armistead asked Beech to bid on the job which it did upon the belief that Armistead was

acting on Henderson's behalf as her agent. The driveway was constructed on Henderson's property

and solely for her benefit. The record is devoid of any proof that Armistead was a primary or general

contractor. Therefore, Beech was justified in relying upon Armistead's apparent authority as

Henderson's agent, and Henderson is thus bound by Armistead's actions. V.L. Nicholson Co. v.

Transcon Inv. and Fin. Ltd., Inc, 595 S.W.2d 474, 483 (Tenn. App. 1980).

       2. The evidence preponderates in favor of the trial court's finding that Beech is entitled to
$7,950.00 for installation of the driveway.

         The trial court not only found there to be a valid contract between the parties to install a

driveway, but also found that Beech had installed the driveway and was, therefore, entitled to the

contract price of $7,950.00 for installation of the driveway. We find the evidence preponderates in

favor of the trial court's decision holding that Beech is entitled to the contract price, and in light of

the evidence presented at trial we agree and affirm on this issue.     The issue of property damages

arising from Beech's allegedly unworkmanlike manner in installing the driveway will be discussed

below.

      3. The evidence preponderates against the trial court's finding that Beech is entitled to
$555.00 for installation of the box drain and culvert.

         The trial court held that there was a separate agreement between Beech and Henderson for

installation of a box drain and culvert. Beech's job estimate provided for installation of an 18 inch

culvert for $340.00 and installation of a box drain and grate for $430.00. We affirm the trial court's

determination as to the existence of such an agreement between Beech and Henderson. However,

Henderson testified that the culvert, while brought to Henderson’s property, ultimately was not

installed and was, in fact, removed from the property. In its reply brief, Beech concedes that the

culvert was removed. Contrary to Henderson's assertions in her brief, the box drain and grate were

installed as found by the trial judge. A photograph of the box drain and grate was introduced into

evidence.

         The Beech invoice shows that it charged Henderson $430.00 for installation of the box drain

and grate and that it charged Henderson $340.00 for installation of the culvert. The invoice reflects

that Beech credited Henderson with only $215.00 for the non-installation of the culvert instead of

the $340.00. This is a differential of $125.00. There is nothing to explain the differential. The

record is silent. Beech maintains that the trial court properly awarded $555.00 for the box drain and

                                                   6
grate. We disagree. The evidence preponderates against the trial court’s finding in this regard and

is reversed and disallowed. The proper amount due Beech for installation of the box drain and grate

is $430.00. The amount of $125.00 will be deducted from the judgment awarded to Beech of

$8,505.00, reducing said judgment to the amount of $8,380.00.

       In summary, we affirm the trial court’s finding that there was a separate agreement between

Beech and Henderson for installation of the box drain, grate and culvert, but reverse its finding that

the culvert was installed.

       We, therefore, affirm the amount of $430.00 for installation of the box drain and grate, but

reverse the granting of the additional $125.00 by the trial court to Beech because the evidence

preponderates against both of these matters.



                                        WORKMANSHIP

      1. The evidence supports the Chancellor's finding that Beech installed the driveway in an
unworkmanlike manner.

       Examination of the testimony offered by Armistead, Henderson and Henderson's expert, Fred

Stephenson, indicates that the driveway is defective because of the footprints and the improper

drainage. The trial court's determination is supported by ample evidence in the form of photographs

of the driveway taken at various times after completion of the project. The photographs clearly show

where the repairs were made to remove the shoeprints, and the photographs also show the many sites

where the driveway collects water due to improper drainage.




                                                  7
      2. The evidence supports the Chancellor's finding that Beech orally agreed to insure that the
driveway would not collect water.

        Beech maintains that Henderson has had water drainage problems in her yard for some

twenty-two years, and that Beech was not hired to correct these problems. Beech claims that it was

simply hired to install a driveway and was not asked to insure that the water would flow across the

driveway and not accumulate. Specifically, Clayton King testified that the elevations that Beech

determined were only elevations for the concrete forms. However, the trial court found otherwise.

Specifically, the trial court stated in its findings of fact and conclusions of law, ". . . Beech Concrete

orally agreed to shoot the slope of the driveway to insure that rainwater would not accumulate.

Beech Concrete failed to do so."

        Armistead testified that one of Beech's duties was to insure that the water drains off the

driveway, and she further testified that Clayton King, Beech's president, agreed that he would take

care of the elevations and the drainage of the driveway. Furthermore, Sandis Cooper, a local brick

mason who took part in the project, testified that it was a Beech employee who determined the

elevations for the driveway and instructed Cooper as to the height to place the brick and underlying

concrete pad. The evidence is undeniable that water collects on the driveway due to improper

drainage.

        The Court finds that the evidence preponderates in favor of the trial court's finding that Beech

installed the driveway in an unworkmanlike manner and that Beech orally agreed to insure that water

would not accumulate on the driveway. Accordingly, the Court will affirm the trial court's

determination.


                                              DAMAGES

        The trial court awarded Beech a judgment of $7,950.00 for installation of a driveway. The

trial court offset that judgment by $6,500.00 because Beech installed the driveway in an

unworkmanlike manner and because Henderson testified that she had suffered property damage in

that amount.

        On appeal, Beech maintains that the trial court erred in awarding damages based on

Henderson's testimony regarding the diminution in value of her property. The proof that Henderson

set forth to establish these damages was her own testimony. Henderson testified to the diminution

in value of her property as follows:

                                                    8
                Q: Mrs. Henderson, in your opinion, what is the reduction -- amount
                of the reduction in your value of your -- all of your property there.
                Your home, if you were going to sell it but didn't have to sell it to a
                buyer who wanted to buy it but didn't have to buy it. In your opinion,
                what is the difference or reduction in the market value between what
                it would be worth if the driveway did not have the sections that you
                complained about?
                                               ****

                A: Well, my opinion would be that the property is worth at least
                $6,500 less than if the driveway were as it should have been, a quality
                correct driveway.


        Examination of the record on appeal indicates that while unrebutted, Henderson's opinion

testimony was all that was offered regarding the amount of damages. On that basis alone, the

Chancellor offset the $7,950.00 contract price by $6,500.00 and awarded Beech a judgment for

installation of the driveway of $1,450.00.

        Although an owner of real property is deemed to have special knowledge about his property

to offer an opinion as to its value, the owner's opinion will be given little weight when founded upon

pure speculation. Airline Const., Inc, v. Barr, 807 S.W.2d 247, 256 (Tenn. App. 1990). There must

be some evidence, apart from mere ownership, that the estimate of diminution in value is a product

of reasoned analysis of evidence in the record, rather than upon conjecture, speculation or

unwarranted assumptions. Id.

at 256; See also Snow Bank Enterprises, Inc. v. United States, 6 Cl. Ct. 476 (1984) (citing United

States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966)). To support an award of damages there must

exist proof of "damages within a reasonable degree of certainty." Redbud Coop. Corp. v. Clayton,

700 S.W.2d 551, 561 (Tenn. App. 1985). Based upon the proof in the record we conclude that there

was no reasonable or rational basis upon which the trial court could have awarded diminution in

value damages of $6,500.00. The trial court should have given no weight to Henderson's valuation

testimony. Without Henderson's testimony, there is no proof of diminution in value damages;

therefore, there can be no award of such damages in this case. Inman v. Union Planters Nat'l. Bank,

634 S.W.2d 270, 272 (Tenn. App. 1982).

        This Court has long held that the measure of damages for injury to real property is the

difference between the reasonable market value of the premises immediately prior to and

immediately after injury, but if the reasonable cost of repairing the injury is less than the depreciation

in value, the cost of repair is the lawful measure of damages. Fuller v. Orkin Exterminating Co.,

                                                    9
Inc., 545 S.W.2d 103, 108 (Tenn. App. 1975). See also Williams v. Southern Ry., 396 S.W.2d 98,

101 (Tenn. 1965); Killian v. Campbell, 760 S.W.2d 218, 222 (Tenn. App. 1988). McKinnon v.

Michaud, 260 S.W.2d 721, 727-28 (Tenn. App. 1953); Mink v. Majors, 279 S.W.2d 714, 716 (Tenn.

App. 1953).      Henderson did not prove the difference in value immediately before and immediately

after construction. Thus, there was no proof as to the point in time when the property was allegedly

damaged by $6,500.00. In Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn. App.

1977), this Court held that evidence regarding the difference in value is to be made at a time certain.

Specifically, this Court held that the party seeking damages has the burden of proving ". . . both

values applied in the formula which measures his general damages, the actual value of the property

at the time of the contract and the value of the property if it had been as it was represented to him."

Id. at 233-34.

       As noted, the record is lacking in proof as to the value of property immediately before and

immediately after the driveway was constructed.

       We hold that on the record in this case, Henderson’s testimony as the property owner of the

loss of value to the property is pure speculation, unsupported by even a modicum of substantive

evidence and amounts to nothing more than mere conjecture. The evidence, or lack thereof,

preponderates against the trial court’s finding of $6,500.00 damages and is reversed as we are

required to do under Rule 13(d), T.R.A.P.

       Beech maintains that the trial court erred in failing to find that the parties, i.e., Henderson and

Beech, had entered into an oral contract providing for liquidated damages of $700.00 if repair of the

footprints failed to satisfactorily cure the defect. We think this issue is moot in consideration of the

disallowance by this Court of the damages awarded to Henderson by the trial judge. Nevertheless,

we would simply point out that although Beech strenuously argued this issue before the trial court,

the chancellor did not award the $700.00 to Henderson in its judgment. In short, by clear and logical

implication, the trial court denied Beech’s contention when it awarded Henderson $6,500.00 based

solely on her testimony as to damages. This issue is denied for the reasons stated.

        Henderson asserts that the judgment awarded to Beech should be set aside because, inter alia,

the cost of repairing the defective driveway exceeded the contract price. In support of this

contention, Henderson cites two cases, Estate of Jessee v. White, 633 S.W.2d 767 (Tenn. App. 1982)

and Wilhite v. Brownsville Concrete Co., Inc., 798 S.W.2d 772 (Tenn. App. 1990). Examination

                                                  10
of these cases reveals that while persuasive, they are not controlling. Both cases involved instances

in which the construction resulted in a product that was totally inadequate (emphasis ours) for the

purpose intended, i.e., a driveway in Estate of Jessee and a swimming pool in Wilhite. Such is not

the case here. It would appear that the driveway is structurally sound and has been used by

Henderson for its intended purpose for the last two and a half years. Accordingly, we find Appellee's

argument meritless. Further, we have carefully examined the record in this cause and we find no

evidence whatsoever of cost of repairs to the driveway to support Henderson’s contention. This

issue is denied.



                                 PRE-JUDGMENT INTEREST

       Beech is asking this Court to grant pre-judgment interest pursuant to T.C.A. § 47-14-123

(1979). Pre-judgment interest, as an equitable principle, has long been held by the law of Tennessee

to be within the sound discretion of the trial court. Fisher v. Klippstatter, 689 S.W.2d 870, 871

(Tenn. App. 1985); Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992). The

trial court refused Beech’s prayer for pre-judgment interest and we will not say that it abused its

discretion in doing so.

       Judgment is awarded to Beech in the amount of $8,380.00 without pre-judgment interest.

Costs are taxed against the Appellee Henderson for which let execution issue if necessary. This

cause is remanded to the trial court for execution of the judgment of this Court.




                                              _____________________________________________
                                              WILLIAM H. WILLIAMS, SENIOR JUDGE



CONCUR:



______________________________________
ALAN E. HIGHERS, JUDGE



______________________________________
DAVID R. FARMER, JUDGE



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