             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                        FILED
                                                        September 1, 1999

SOUTHWEST PROGRESSIVE                    )             Cecil Crowson, Jr.
ENTERPRISES, INC.,                       )            Appellate Court Clerk
                                         )
      Plaintiff/Appellee,                )
                                         )   Appeal No.
                                         )   01-A-01-9810-CH-00542
VS.                                      )
                                         )   Rutherford Chancery
                                         )   No. 97CV-534
SHRI-HARI HOSPITALITY, LLC, and          )
TRANS FINANCIAL BANK OF                  )
TENNESSEE, N.A.,                         )
                                         )
      Defendant/Appellant.               )


   APPEALED FROM THE CHANCERY COURT OF RUTHERFORD COUNTY
                AT MURFREESBORO, TENNESSEE

          THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR



THOMAS D. FROST
815 South Church Street
Murfreesboro, Tennessee 37130
      Attorney for Plaintiff/Appellee

JAMES C. BRADSHAW, III
1500 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
      Attorney for Defendant/Appellant




                   AFFIRMED IN PART; REVERSED IN PART;
                             AND REMANDED




                                             BEN H. CANTRELL,
                                             PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
                                OPINION


              A construction company sued a hotelkeeper for payment of the balance

due on their contract. The trial court ordered the hotelkeeper to pay the balance, as

well as pre-judgment interest and attorney fees. We affirm the award of pre-judgment

interest, but we reverse the award of attorney fees. We also reverse a $500 offset the

trial court granted to the defendant for the plaintiff’s alleged failure to complete a

punch list.



                                          I.



              Defendant Shri-Hari Hospitality (Shri-Hari), was the owner and developer

of the Wingate Hotel in Murfreesboro.          On December 10, 1996 the defendant

contracted with a construction company from Texas, Southwest Progressive

Enterprises (Southwest), to have Southwest spray a textured plastic finishing material

called Plexture to the walls in 85 rooms of the new hotel. The total contract price was

$39,154. The contract provided that Shri-Hari would make a $15,675 down payment

on the contract price upon delivery of the construction materials, with the balance of

$23,479 payable upon completion of the work. The contract also provided that

payments due and unpaid under the contract would accrue interest at the rate of 10%

per year.



              Southwest sent a crew of its employees from Dallas, Texas to do the

work. They were informed that the rooms were not yet ready. After 10 unproductive

days, the crew was able to begin work. At some point, the defendant signed a written

authorization for additional work that added $2,465 to the contract price. Southwest’s

employees completed the work in about two weeks, and the contractor submitted a

bill for the balance.   When payment was not forthcoming, it filed a notice of



                                         -2-
contractor’s lien on February 4, 1997, followed by a complaint on August 16, 1997,

which asked the court to award it the contract amount and pre-judgment interest, as

well as $10,000 for lost profits due to the delay in beginning the work.



              Shri-Hari subsequently filed an answer and counterclaim, in which it

charged Southwest with shoddy workmanship. It claimed that Southwest’s employees

had damaged vanities, air conditioner covers, and other hotel property, and most

importantly, that they had negligently painted over sprinkler heads, causing a delay

in the opening of the hotel and a loss of revenue and profits. Shri-Hari alleged that

its damages amounted to $50,000.



              The evidence at trial in regard to the construction contract was fairly

straightforward, but the defendant’s counterclaim was hotly disputed. While there was

no doubt that Shri-Hari’s property had been damaged, there was conflicting testimony

as to cause. The defendant insisted that the damage to the sprinkler heads was

caused by the plaintiff’s careless application of Plexture. The plaintiff presented the

testimony of several individuals to refute this theory, including a young man who had

been hired by the defendant to spray primer on the walls before Southwest’s

employees appeared on the scene, and who stated that he did not take any steps to

protect the sprinkler heads from the spray.



              The trial court found that the defendant had not proven its counterclaim

on the matter of the sprinklers by the preponderance of the evidence, but that it had

established the right to offset the judgment for Southwest by $1,726 because of

damage to vanities, and by another $500 for Southwest’s failure to complete a punch

list. Plaintiff Southwest was awarded its contract balance minus the offsets, as well

as pre-judgment interest of $4,107, and attorney fees of $5,510. Defendant Shri-Hari

appealed to this court solely on the issues of pre-judgment interest and attorney fees.




                                         -3-
                              II. Pre-Judgment Interest



              It has long been the law in Tennessee that courts may award pre-

judgment interest in accordance with the principles of equity. Fisher v. Klippstatter,

689 S.W.2d 870 (Tenn. App. 1985). Tenn. Code Ann. § 47-14-123 [Acts 1979, ch.

203, § 22]. Such an award is within the sound discretion of the trial court, and should

not be reversed in the absence of a manifest and palpable abuse of that discretion.

Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938, 944 (Tenn. 1994).



              Shri-Hari contends that the trial court erred in awarding pre-judgment

interest to Southwest, because the obligation to pay such interest never arose under

the parties’ contract. The appellant notes that the contract called for payment of the

balance due upon completion of the work, with interest to accrue upon the unpaid

balance at a rate of 10% per year. The appellant argues that Southwest never

completed the work, and thus that the balance never became due. The appellant also

argues that the trial court ruled inconsistently on this matter, because its award to

Shri-Hari of an offset for Southwest’s failure to complete a punch list amounts to a

finding that Southwest did not, in fact, complete the job. We will deal with the

question of the punch list later in this opinion.



              The appellant’s argument does not address the equitable purpose of

awarding pre-judgment interest, which is “to fully compensate a plaintiff for the loss

of use of the funds to which he or she was legally entitled.” Mitchell v. Mitchell, 876

S.W.2d 830, 832 (Tenn. 1994).         The hotelkeeper presented no evidence that

Southwest failed to substantially perform the work it contracted to do. We know of no

theory that would have enabled Shri-Hari to avoid any payment whatsoever under the

contract simply because it did not feel that the work had been completed to its

satisfaction. Thus, Southwest was entitled to payment, and it would be inequitable to




                                          -4-
reward Shri-Hari for its refusal to pay by allowing it to retain the use of money it owed

during the course of legal proceedings, while denying that use to Southwest.



              To bolster an otherwise weak argument, appellant cites the Mitchell

case, supra, as standing for the proposition that when an obligation is disputed on

reasonable grounds, it is not appropriate to award pre-judgment interest. The court

actually said in that case “[w]here, as in this case, the amount of the obligation is

certain, or can be ascertained by a proper accounting, and the obligation is not

disputed on reasonable grounds, the Court may allow prejudgment interest in

accordance with the principles of equity.” 876 S.W.2d at 832.



              In the case of Myint v. Allstate Insurance, 970 S.W.2d 920 (1998), our

Supreme Court discussed the factors a trial court ought to consider in awarding pre-

judgment interest. In that case, the trial court granted pre-judgment interest to the

plaintiffs, and the appellant challenged that award because of uncertainty as to the

amount that was due, and the argument that it had a reasonable basis upon which to

dispute liability. The court rejected that argument, and stated that equity was the

foremost principle to follow when awarding pre-judgment interest. In regard to the

criteria mentioned in Mitchell v. Mitchell, supra, the court said,

              We note that these criteria, if strictly construed, could prohibit
              the recovery of prejudgment interest in the vast majority of
              cases.        Indeed, only a liquidated claim, for which
              prejudgment interest is already recoverable as a matter of
              right under Tenn. Code Ann. § 47-14-109, can truly be
              considered an obligation of certain and indisputable amount.
              Further, it is safe to say that, at trial, defendants usually can
              articulate at least one good reason for disputing the existence
              of the obligation, for were it otherwise, defendants would
              rarely survive summary judgment. Finally, the focus on
              whether the defendant had a reasonable defense ignores the
              principle that prejudgment interest is not a penalty imposed
              on the defendant for indefensible conduct.



              We believe that it would be inequitable to deny Southwest the use of the

money it was entitled to receive under the parties’ contract, simply because the


                                          -5-
defendant was able to articulate a possible defense to payment. We therefore find

that the trial court did not abuse its discretion in awarding prejudgment interest.



                                  III. Attorney Fees



              Tennessee courts adhere to the so-called “American rule,” which

provides that attorney's fees may not be awarded to the prevailing party in the

absence of some kind of statutory authorization, or of an agreement between the

parties providing for such fees. John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d

528 (Tenn. 1998). In the present case, there is no provision for attorney fees in the

contract between the parties. However, the trial court awarded attorney fees to

Southwest in accordance with the provisions of another document introduced into

evidence during the trial of the case.



              The document was a credit application that Southwest had submitted

to the defendant, and which was signed by the owner of Shri-Hari on November 22,

1996, prior to the execution of the construction contract. James Reed, Southwest’s

owner, testified that his company would not enter into a construction contract that

required it to extend its services to a property owner unless the owner established his

credit-worthiness through the credit application, which included spaces for bank and

trade references. In exceedingly small print at the bottom of the credit application was

language providing for finance charges of 1½% per month on past due charges, and

for attorney fees and collection costs incurred in the collection of any such debt. The

trial court reasoned that the pre-judgment interest provision in the construction

contract superseded the one in the credit application, but that since the construction

contract was silent on the question of attorney fees, the credit application expressed

the parties’ intention on that matter.




                                         -6-
              The appellant argues that the trial court erred, because its ruling

contradicts the general rule of merger, which is that the last written agreement

between the parties supersedes all former agreements that involve the same subject

matter. In such a case, the earlier agreement is held to have become “merged” in the

more recent one, and is itself extinguished. Appellant contends that the credit

application was merged into the construction contract, which then became “the only

contract between the parties.” American Fruit Growers v. Hawkinson, 106 S.W.2d

564 (Tenn. 1937).



              The appellee contends that the trial court did not err, arguing that the

credit application did not involve the same subject matter as the construction contract,

and thus that the two contracts did not merge. It appears to us, however, that while

the purpose of the two contracts may have been different, the subject matter of the

first is encompassed by the second.



              The construction contract is a comprehensive document that includes

detailed provisions as to the work to be done, the price to be paid, and the conditions

of payment. One section includes a space for the listing of other documents to be

incorporated by reference into the contract. The credit application is not listed in that

section, or mentioned anywhere else in the construction contract. We must therefore

conclude that the construction contract expresses the final agreement of the parties,

and that any provisions in the credit application that vary from it were extinguished

through the operation of merger. The award of attorney fees is reversed.



                                 IV. The Punch List



              Mr. Reed testified at trial that he contacted the owner of Shri-Hari four

or five times by phone and fax in an attempt to get a punch list of items to complete

the job, and that he ordered his employees to return to Texas because his calls were


                                          -7-
never returned. Vince Hari, Shri-Hari’s owner, denied that he had ever been asked

for a punch list, and claimed that Southwest’s employees just disappeared one day

without notice. The trial court noted that there was no proof that a punch list had ever

been prepared, or of the values of any items which might have been placed on such

a list.



              Nonetheless, the chancellor observed that a punch list is a normal

component of any construction job, and stated

                     “Given the circumstances I had adopted an at least
              somewhat arbitrary figure for those punch list items. And it
              may be too high, and it may be too low. Which it is may
              depend on which party and which counsel discusses the
              issue after the case is concluded.

                     “I have admittedly, somewhat arbitrarily, assigned a
              dollar amount of $500 to those punch list items and I’ve
              reduced the figure then, as suggested earlier, by that dollar
              amount.”



              It appears to us that any award, even if only an offset, must be based

upon some proof of damages. In this case, if no punch list was available, the burden

rested on the counter-claimant to produce evidence as to what work Southwest was

obligated to do which it left unfinished, and of the cost of finishing the work by other

means. Our standard of review is governed by Tenn.R.App.P. 13(d) which accords

a presumption of correctness to findings of fact by the trial court in civil actions, unless

the preponderance of the evidence is otherwise. In this case, there was no material

evidence whatsoever to support the trial court’s judgment, and therefore the

presumption must fail.



                                            V.



              The award of attorney fees and of the $500 offset is reversed. In all

other respects, the judgment of the trial court is affirmed. Remand this cause to the



                                           -8-
Chancery Court of Rutherford County for further proceedings consistent with this

opinion. Tax the costs on appeal equally between the appellant and the appellee.




                                       ____________________________________
                                       BEN H. CANTRELL,
                                       PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




                                      -9-
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE



SOUTHWEST PROGRESSIVE                        )
ENTERPRISES, INC.,                           )
                                             )
         Plaintiff/Appellee,                 )
                                             )      Appeal No.
                                             )      01-A-01-9810-CH-00542
VS.                                          )
                                             )      Rutherford Chancery
                                             )      No. 97CV-534
SHRI-HARI HOSPITALITY, LLC, and              )
TRANS FINANCIAL BANK OF                      )      Affirmed in Part;
TENNESSEE, N.A.,                             )      Reversed in Part;
                                             )      and Remanded
         Defendant/Appellant.                )

                                   JUDGMENT

                This cause came on to be heard upon the record on appeal from the

Chancery Court of Rutherford County, briefs and argument of counsel; upon

consideration whereof, this Court is of the opinion that the award for attorney fees and

the $500 offset for failure to complete a punch list should be reversed. In all other

respects the decree is affirmed.

                In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree is affirmed in part and reversed in

part. The cause is remanded to the Chancery Court of Rutherford County for further

proceedings consistent with this opinion and for the collection of the costs accrued

below.

                Costs of this appeal are taxed equally against Southwest Progressive

Enterprises, Inc. and Shri-Hari Hospitality, LLC, for which execution may issue if

necessary.



                                     ______________________________________
                                     BEN H. CANTRELL, PRESIDING JUDGE, M.S.


                                     ______________________________________
                                     WILLIAM C. KOCH, JR., JUDGE


                                     ______________________________________
                                     WILLIAM B. CAIN, JUDGE
