                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON



SARA J. And JERRY H. MALONE,              )       From the Madison County Circuit Court
                                          )       at Jackson, Tennessee
       Plaintiffs/Appellees,              )
                                          )       The Hon. Franklin Murchison, Judge
vs.                                       )
                                          )       Trial Court No. C95-305
                                          )       Appeal No. 02A01-9704-CV-00091
                                          )
FIRST CAPITAL HOME                        )
IMPROVEMENTS,                             )       AFFIRMED
                                          )
       Defendant/Appellant.               )
                                          )       Ted M. Hunderup
                                          )       Humboldt, Tennessee
                                          )       Attorney for Appellant
                                          )
                                          )       J. B. Glassman
                                          )       Jackson, Tennessee
                                          )       Attorney for Appellees


                                 MEMORANDUM OPINION


       HIGHERS, J.


       Defendant First Capital Home Improvements appeals the trial court’s judgment

entered in favor of Plaintiffs/Appellees Sara J. Malone and Jerry H. Malone in this breach

of contract action. We affirm.



       In September 1992, the Malones contracted with First Capital to make various

improvements and repairs to the Malones’ house, the most important of which was a new

roof. The first time it rained after First Capital’s completion of the work, the Malones’ new

roof leaked. Over a period of months, the Malones contacted First Capital and expressed

their dissatisfaction with the roof and with other repairs that First Capital had made to the

Malones’ house. In February 1993, First Capital sent Jim Bowers to the Malones’ house

to fix their roof. Bowers’ efforts to repair the roof were unsuccessful, however, as were his

later efforts in April or May 1993. The Malones subsequently filed this breach of contract

action against First Capital in September 1995.
       After the Malones filed this action, the parties made one last effort to resolve their

dispute. First Capital sent another contractor, Ian Lopez, to the Malones’ house to repair

the roof and to repair other problems of which the Malones had complained. When Lopez

and his crew completed their work, Lopez asked Jerry Malone to sign a completion form

signifying his satisfaction with the work, but Malone refused. Accordingly, the parties

proceeded to trial on the Malones’ breach of contract claim.



       At trial, Lopez testified that Jerry Malone had interfered with First Capital’s efforts

to make repairs to the house and had made performance of the contract impossible. Lopez

testified that Malone exhibited erratic behavior, at times cursing the work crew and ordering

them off the property. According to Lopez, Malone would appear cooperative and satisfied

with Lopez’s work one day, but then the following day he would change his mind as to how

he wanted the work performed.



       Both of the Malones testified at trial concerning First Capital’s failure to satisfactorily

complete the work on their house. Jerry Malone specifically denied engaging in any

behavior which had obstructed Lopez’s efforts to make repairs to the house. In spite of

First Capital’s efforts, at the time of trial, the Malones’ roof still leaked. In fact, the roof

leaked even worse than it did before First Capital’s installation of the roof. The leaking roof

had caused damage to the Malones’ walls, ceilings, carpets, and furniture.



       At the trial’s conclusion, the trial court entered a judgment awarding the Malones the

sum of $12,882. The trial court found that First Capital “failed to satisfactorily perform

under the contract” and that the Malones “were not guilty of contributing fault.” On appeal,

First Capital raises the sole issue of whether the trial court erred in failing to find that the

Malones breached the contract by making First Capital’s performance impossible.



       We conclude that this issue is without merit and, thus, affirm the trial court’s

judgment.1 Inasmuch as this case was tried by the trial court sitting without a jury, this

       1
         In affirming the trial court’s judgment, we reject the Malones’ argument that the
trial court should have awarded them an additional $5,456.69 in damages.

                                                2
court’s review on appeal is de novo upon the record, accompanied by a presumption that

the trial court’s findings of fact are correct. Roberts v. Robertson County Bd. of Educ., 692

S.W.2d 863, 865 (Tenn. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297,

300 (Tenn. App. 1984); T.R.A.P. 13(d). Under this standard of review, we must affirm the

trial court’s decision unless the trial court committed an error of law affecting the result or

unless the evidence preponderates against the trial court’s findings. Roberts, 692 S.W.2d

at 865. Applying the foregoing standard, we hold that the evidence does not preponderate

against the trial court’s findings that First Capital breached the subject contract and that

the Malones did not contribute to this breach. The evidence showed that the Malones’ new

roof leaked the first time it rained after First Capital’s completion of the work. At the time

of the trial over two years later, the Malones’ roof still leaked despite First Capital’s

numerous attempts to repair it.



       In affirming the trial court’s judgment, we recognize that the evidence was disputed

as to whether Jerry Malone interfered with Ian Lopez’s efforts to repair the Malones’ house.

We note, however, that when a conflict in testimony requires the trial court to make a

determination regarding the credibility of a witness or witnesses, such a determination is

“binding on the appellate court unless from other real evidence the appellate court is

compelled to conclude to the contrary.” Hudson v. Capps, 651 S.W.2d 243, 246 (Tenn.

App. 1983). After carefully reviewing the evidence presented below, we are not compelled

to reach a different result. Moreover, we note that First Capital’s earlier efforts to repair the

house also were unsuccessful, and there were no allegations that Jerry Malone was in any

way responsible for the failure of these earlier efforts.



       The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed

to First Capital, for which execution may issue if necessary.




                                                                   HIGHERS, J.




                                               3
CONCUR:




CRAWFORD, P.J., W.S.




LANIER, Sp. J.




                       4
