               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               October 6, 2010 Session

      WISE CONSTRUCTION, LLC, ET AL. v. THOMAS BOYD, ET AL.

                Appeal from the Chancery Court for Hamilton County
                  No. 05-0477    W. Frank Brown, III, Chancellor




                No. E2009-01899-COA-R3-CV - Filed March 14, 2011


This appeal involves a home construction dispute between an LLC contractor and the
homeowners. The contractor entered into a written contract with the homeowners for the
construction of a 6000 square foot home. Upon the relationship between the parties
becoming strained, the homeowners claim the contractor told them to find another builder.
The contractor contends it was fired from the project. The instant action was commenced
by the contractor to enforce a lien. The trial court found in favor of the contractor. The
homeowners appeal. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., J., joined and D. M ICHAEL S WINEY, J., filed separate dissenting opinion.

William G. Colvin, Chattanooga, Tennessee, for the appellants, Thomas A. Boyd and Lori
Boyd.

William T. Alt, Chattanooga, Tennessee, for the appellees, Wise Construction, LLC and John
Wise, III.

                                       OPINION

                                  I. BACKGROUND

      John Wise, III formed “Wise Construction, LLC” (collectively “the Contractor”) in
1998. The LLC1 applied for a general contractor’s license with the Tennessee Contractors
Licensing Board in 1998. Mr. Wise took the licensing exam and is the “qualifying agent”
for the LLC’s license. Wise Construction, LLC’s contractor license number is 041427. The
homeowners with whom the Contractor has a dispute are Tom and Lori Boyd (“the Boyds”).


                             THE CONSTRUCTION CONTRACT

        Prior to entering into the construction contract at issue, the Boyds and Mr. Wise had
a purely social relationship; they had met playing tennis. Upon the Boyds learning that Mr.
Wise was a builder and Mr. Wise learning that the Boyds desired to construct a house, the
parties began discussing house plans. Eventually, a contract was signed on September 16,
2003. Construction began on October 1, 2003.

        The construction contract at issue was a form from a homebuilders association. Mr.
Wise filled in the blanks. The name “Wise Construction, LLC” does not appear anywhere
on the contract; no LLC is named at all. The signature block for the “CONTRACTOR” is
signed “John S. Wise, III” with no designation of any representative capacity or other entity
identified. Immediately below that word appears a line labeled “Contractor License #” and
there has been written in the numbers: 041427. In two other places on the contract, the name
“Wise Construction” (without the LLC designation) is written in as the contractor. For
instance, in paragraph 9, there has been inserted in handwriting adjacent to the printed word
“Contractor”: “Wise Construction, 1023 Mtn. Creek Rd., Chatt., TN 37415.”

       The first payments for work performed under the contract were made payable to “John
S. Wise, III,” at his request. These payments were subsequently endorsed “John S. Wise,
III.” Payments were usually made payable to “Wise Construction Company” or “John Wise
Construction Company.” While no payments were made payable to “Wise Construction,
LLC,” most were endorsed “Wise Construction LLC.”

         As for the change orders, the name “Wise Construction, LLC” does not appear
anywhere on any of them. Each of the change orders that are typewritten shows a signature
line titled “Contractor” signed “John S. Wise, III,” without any designation or indication that
such signature is in any representative capacity. On occasion, Mr. Wise sent faxes to the
Boyds that do show the name “Wise Construction, LLC.”




        1
          A limited liability company is empowered “as an individual to do all things necessary or convenient
to carry out its business.” Tenn. Code Ann. §§ 48-212-101, 48-249-104(c).

                                                    -2-
      The complaint in this case was filed on May 6, 2005, by Wise Construction, LLC 2 at
1023 Mountain Creek Road, Chattanooga, as the only plaintiff against the Boyds. Gateway
Bank & Trust (“Gateway”), believed to have a construction deed of trust interest in the
Boyds’ property, was also named as a defendant. The complaint recited that the Boyds owed
Wise Construction, LLC $116,942.

        The Boyds filed their initial answer on June 30, 2005; at that time, they did not raise
the question of the legal existence or capacity of Wise Construction, LLC to sue them for
breach of contract and to enforce the mechanic’s lien. In fact, on that same day, they moved
to disqualify the attorneys for Wise Construction, LLC. The basis for the disqualification
motion was that Wise Construction, LLC’s then attorneys had represented it and the Boyds
in a suit against a subcontractor relating to the payment of funds for work to be done on the
Boyds’ house. In Mr. Boyd’s affidavit, dated July 29, 2005, he related that he advanced
money to a Mr. Hale for installation of a spiral staircase in his home and had been made
aware that Wise Construction, LLC had brought suit against Mr. Hale. In setting out his
awareness as to the lawsuits in which he and Wise Construction, LLC were plaintiffs, Mr.
Boyd relates that the spiral staircase is a “part of the lawsuit” that is the subject of this appeal.
The Contractor observes it can be inferred that since Mr. Boyd knew Wise Construction,
LLC had sued Mr. Hale regarding the spiral staircase in the house, that Wise Construction,
LLC was the contractor for the house.

       The Boyds’ answer asserted a counterclaim citing breach of contract, negligent and
intentional misrepresentation, and violations of the Tennessee Consumer Protection Act
(“TCPA”), Tenn. Code Ann. § 47-18-101, et seq., by either Wise Construction, LLC or Mr.
Wise individually. The Boyds alleged that the Contractor underbid the job and attempted to
make up the difference using change orders, overcharged the Boyds on change order items,
and used inferior materials in the construction of the house. They also contended that some
of the changes included items or work that had been included in the original construction
contract.

      After the lawsuit was ongoing, Gateway subordinated its lien interest to a new lien
claim. The new claimants to legal and equitable interests in the property were Crescent
Mortgage Company (“Crescent”),3 Old Republic Title Company of Tennessee (“ORTC”),



        2
         A membership interest in an LLC is personal property. A member has no interest in specific LLC
property. All property transferred to or acquired by an LLC is property of the LLC itself. See Tenn. Code
Ann. §§ 48-215-101(a), 48-249-104(c).
        3
            Wells Fargo Bank, N.A., is the successor in interest to Crescent.

                                                      -3-
and Mortgage Electronic Registration Systems, Inc. (“MERS”).4

       After a period of about 23 months, the Boyds sought to amend their answer to contest
who was their contracting partner. The trial court allowed the Boyds to amend their answer
and discovery responses, but it did so with the caveat that it would consider the prior filings
in addressing the issue of who was the contractor.

         In the amended answer, the Boyds challenged the right of Wise Construction, LLC
to file the lien. They alleged in a counterclaim that the construction contract identifies only
Wise Construction, but was signed by Mr. Wise. The Boyds filed a third-party complaint
against John S. Wise, III, claiming that Mr. Wise individually was solely the contracting
party, not Wise Construction, LLC. The Boyds asserted that the contractor’s license is not
in Mr. Wise’s name and that because he is not a licensed contractor, he is limited by law in
his recovery, if any. They further claimed that Mr. Wise had committed “an unfair and
deceptive practice under the TCPA by holding himself out to them as a licensed contractor.”

       A motion for partial summary judgment was eventually filed by the Boyds on the issue
of who was the contracting party – Mr. Wise individually or Wise Construction, LLC. The
motion specifically asserted that because Mr. Wise executed the contract individually, he is
individually liable for any breach; Mr. Wise is not a licensed contractor; and, as an
unlicensed contractor, Mr. Wise is limited in any recovery to only his actual documented
expenses proven by clear and convincing evidence. The trial court denied the motion based
on a finding that there were genuine issues of material fact outstanding.

        Subsequently, Wise Construction, LLC and Mr. Wise individually filed motions for
partial summary judgment as to all the non-contractual claims, in part on the grounds that the
Boyds’ claims under the TCPA were barred by the applicable one-year statute of limitations
at Tenn. Code Ann. § 47-18-110.5 The trial court ruled that the motions should be granted
in part and denied in part, specifically holding that the claims under the TCPA were barred
by the statute of limitations, which the court held began to run upon the filing of the original
complaint. The trial court observed as follows:


        4
         The terms of the deed of trust identify the trustee as ORTC acting for the named beneficiary, MERS,
identified as the nominee for Crescent.
        5
            The statute of limitations for the TCPA is found in Tenn. Code Ann. § 47-18-110 (Supp. 2010):

        Any action commenced pursuant to § 47-18-109 shall be brought within one (1) year from
        a person’s discovery of the unlawful act or practice, but in no event shall an action under §
        47-18-109 be brought more than five (5) years after the date of the consumer transaction
        giving rise to the claim for relief.

                                                     -4-
       [T]he Boyds knew, or had facts available to them by which they should have
       known, that Wise Construction claimed to be the contractor when it filed its
       notice of lien against the Boyds’ real estate. A notice of lien was filed on
       March 30, 2005 and an amended notice was filed on May 4, 2005. Only by
       being the contractor could Wise Construction be able to file legally a claim of
       lien against the Boyds’ real estate. Further, the Boyds were sued on May 6,
       2005, by Wise Construction. The Boyds were served through counsel on May
       9, 2005. Thus, Boyd[s] knew or should have known who claimed to be the
       contractor. However, the Boyds did not file their counterclaim and third-party
       complaint until May 15, 2007. The one year statute of limitation applicable to
       the TCPA had already long expired. As admitted, the Boyds could have
       checked the public records of Tennessee to determine the holder of the
       contractor’s license for the contractor’s number set forth on the parties’
       agreement of September 16, 2003. The Boyds could also have checked the
       records to determine at any time if Mr. Wise individually was a licensed
       contractor. Thus, it is not necessary to review the contractor’s claim that the
       Boyds suffered no damages as a result of the contractor issue.

       Further, the Boyds knew, or should have known, after November 14, 2005,
       that the change order price submitted to them for the steel deck was above the
       cost of the material sold to the contractor. A claim filed under the TCPA on
       this theory was filed about six months after the statute of limitation had already
       expired.


       The trial in this matter lasted approximately nine days spread over nearly four weeks,
beginning in March 2009. Ultimately, the trial court granted judgment in favor of Wise
Construction, LLC and against the Boyds on all issues. On the claim that Mr. Wise
individually was the contractor – not Wise Construction, LLC – the court held as follows:

       Mr. Boyd thought he was dealing with some business entity of John Wise. He
       was. The contract lists Wise Construction as the contractor. Wise
       Construction, LLC’s general contractor’s license number is listed below the
       signature line. Wise Construction is the trade name for Wise Construction,
       LLC. The business obtained its license due, in part, to John S. Wise’s passing
       the contractor’s examination. The Boyds wrote seven checks to Wise
       Construction. At least 11 of 16 of the Boyds’ checks were stamp-endorsed
       “Wise Construction, LLC.” The omission of “LLC” from the contractor’s
       name is not fatal. It is the court’s view that the Boyds knew the exact identity
       of the contractor and admitted it. It was not until a very skilled attorney

                                              -5-
        became their new counsel and “spotted” the technicality was there any issue
        as to the contractor’s identity.

        The court holds that Wise Construction, LLC, was the general contractor for
        the Boyds’ home. First, the contractor is listed as Wise Construction in the
        contract. Second, the general contractor’s license number set forth on the
        contract under the contractor’s signature line, belongs to Wise [C]onstruction,
        LLC. Third, Mr. Boyd though[t] he was dealing with a business of Mr. Wise.

        Fourth, most of the Boyds’ checks are written to Wise Construction. More of
        the checks, even the ones written by the Boyds to a variant of the contractor’s
        name, are endorsed by Wise Construction, LLC. Fifth, when Mr. Boyd wanted
        to communicate formally with his contractor, he wrote to Mr. Wise at Wise
        Construction, LLC. If Mr. Boyd had just been dealing with Mr. Wise as an
        individual, then there was no need to list Wise Construction, LLC in the inside
        address portion of the formal letters. . . .

        Sixth, the contractor filed two notices of liens in the name of Wise
        Construction, LLC. Seventh, the Complaint was filed by Wise Construction,
        LLC. . . . Eighth, the Boyds answered the Complaint and subsequent
        discovery that Wise Construction, LLC was the general contractor for their
        home. They later changed their answers and responses after changing
        attorneys. The Boyds would certainly be upset if the court denied them credit
        for the monies paid by check to a payee other than Wise Construction.
        Assuming the contractor would be [e]stopped from denying the payments
        made to John Wise, the Boyds paid $185,000.00 to named payees other than
        Wise Construction.


The Contractor was awarded a monetary judgment of $189,061.66; it included an award for
a claimed balance due on the contract,6 prejudgment interest,7 and attorney’s fees.8 The trial
court did find that Mr. Wise individually was “personally liable and responsible for the


        6
            The principal balance due was found to be $87,015.25.
        7
        The trial court held that the Contractor was entitled to 5% interest on the principal money due it by
the Boyds from May 18, 2007, until judgment – interest for two years and 17 days. The prejudgment interest
award was $17,808.34.
        8
        The trial court awarded attorney’s fees of $75,054.17 and expenses of $9,183.90, for total fees and
expenses of $84,238.07.

                                                    -6-
liabilities and obligations of Wise Construction LLC” because he failed “to sign contracts
and change orders in a representative capacity.”9 The trial court did not grant the equitable
subrogation claim of Wells Fargo.10

       After the Boyds’ motion to alter or amend was denied by the trial court, they filed a
timely appeal.


                                                  II. ISSUES

       The issues raised by the Boyds are restated as follows:

       1. Whether the trial court erred in finding that the contractor was Wise
       Construction, LLC instead of Mr. Wise individually, when Wise Construction,
       LLC was not named anywhere in the contract and when Mr. Wise signed the
       contract without designating any representative capacity;

       2. Because Mr. Wise individually is the contracting party and is an unlicensed
       contractor, the court should find that neither Mr. Wise individually nor Wise


       9
        The Boyds argue that this finding places Mr. Wise and Wise Construction, LLC within the rule of
Danny L. Davis Contractors, Inc. v. Hobbs, 157 S.W.3d 414 (Tenn. Ct. App. 2004) and would effectively
make both unlicensed contractors.
       10
            The court noted as follows:

                  Crescent knew of the Contractor’s lien. Crescent either did not try or was
                  not successful in getting the Contractor to subordinate its lien claim or to
                  release its lien claim. Crescent made the loan despite this knowledge. The
                  Contractor’s notice of lien was recorded before the deed of trust securing
                  Crescent was recorded. Clearly, the Contractor’s rights would be
                  prejudiced if Wells Fargo’s claim was sustained. Crescent clearly was
                  negligent in making the loan if it had to be in first position.

                  Further, there is a second reason to deny Wells’ Fargo’s claim to equitable
                  subrogation. Tennessee Code Annotated § 66-11-104, in effect at the time
                  relevant to this case, states that a contractor’s lien “[s]hall relate to and take
                  effect from the time of the visible commencements of operations. . . .”

                  There is an issue of whether the contractor had begun visible
                  commencement of construction operations on the Shelter Cove property
                  before Gateway recorded its deed of trust on October 20, 2003. Mr. Boyd
                  stated that the contractor started work on October 1, 2003. . . .

                                                         -7-
       Construction, LLC were entitled to any recovery from the Boyds;

       3. If this court concludes the trial court was in error finding that Wise
       Construction, LLC was the contracting party, rather than Mr. Wise
       individually, this court should also address the trial court’s erroneous
       determination that the Boyds’ claims under the Tennessee Consumer
       Protection Act were barred by the applicable statute of limitations and remand
       the case for a determination of their right to recover under the Act;

       4. The court should find that the Boyds did not wrongfully terminate the
       contract because Mr. Wise resigned and told them to find someone else to
       finish the contract due to their dissatisfaction with his performance;

       5. As a remedy for the above errors of the trial court, the Boyds ask that all
       funds collected by Wise Construction, LLC, by garnishment or otherwise, be
       refunded to the Boyds; that all court costs paid by the Boyds be refunded; that
       the court below be directed to enter judgment in favor of the Boyds; that Mr.
       Wise individually is the only contracting party and is entitled to no further
       payment since he is an unlicensed contractor and has been paid more than his
       documented out-of-pocket expenses; that this case be remanded for a hearing
       on the damages to which the Boyds may be entitled for their claim under the
       Tennessee Consumer Protection Act; and that all court costs be taxed to Wise
       Construction, LLC and Mr. Wise individually.

Issues raised by the Contractor are as follows:

       1. Was the trial court’s resolution of the factual issue as to the ambiguity on
       the face of the contract regarding the identity of the Contractor against the
       weight of the evidence?

       2. Was the trial court’s resolution of the factual issue as to the use of the
       assumed name “Wise Construction” by Wise Construction, LLC against the
       weight of the evidence?

       3. Was the trial court’s resolution of the factual issue that rejected the Boyd’s
       contention there had been a unilateral termination of the contract on the part
       of the Contractor against the weight of the evidence?




                                              -8-
                             III. STANDARD OF REVIEW

       This matter was tried as a bench trial. On appeal the trial court’s findings of fact are
reviewed de novo on the record by the appellate court with a presumption the findings are
correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721 (Tenn. 2001). We give great deference to the trial court’s assessment
of the credibility of the witnesses and it will not be reassessed unless there is clear and
convincing evidence to support a different finding. Estate of Walton v. Young, 950 S.W.2d
956, 959 (Tenn. 1997). The review of the trial court’s conclusions of law is also conducted
de novo, with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670
(Tenn. 2006).


                                     IV. DISCUSSION

                                              A.

       The Boyds do not claim that the construction contract is not an enforceable agreement.
Rather, they assert that the key issue in this appeal is who was the actual contractor for the
Boyd residence – Wise Construction, LLC or John S. Wise, III, individually? They contend
the law holds “Wise Construction” and “John S. Wise, III” are not the same thing as “Wise
Construction, LLC.”

       The Boyds focus on examining only some portions of the contract, in particular, the
signature line. They claim it establishes that Mr. Wise individually entered into the
construction contract with them. They acknowledge that the contract also contains references
to Wise Construction, but urge that this language does not give rise to an ambiguity. The
Contractor submits this matter requires a reading of the parties’ contract as a whole to
determine whether there is any ambiguity in the words used to identify the contractor.

       In considering the overall language of the agreement, it is clear that the parties were
entering into a particular form of contract to achieve construction of a house. The face of the
form defined the contractor and the owner. The form specially provided for the insertion of
the contractor’s license number. The document indicates two different entities as contractor.
This presents an ambiguity.

        Parol evidence is ordinarily admissible to establish the identities of the parties to a
contract.” Int’l House of Talent, Inc. v. Alabama, 712 S.W.2d 78, 86 (Tenn. 1986). In this
case, the language in the contract is ambiguous and proof is required to establish the identity
of the actual contractor.

                                              -9-
        “The trial judge is required, if the contract is ambiguous, to determine the intention
of the parties not alone from the language of the contract but also from the surrounding facts
and circumstances.” HMF Trust v. Bankers Trust Co., 827 S.W.2d 296, 299 (Tenn. Ct. App.
1991) (citing National Garage Co. v. George H. McFadden & Bro., Inc., 542 S.W.2d 371
(Tenn. Ct. App. 1975). The trial court determined that Mr. Wise signed the contract in a
representative capacity. The evidence supports this finding.

       In his testimony, Mr. Boyd indicated that he understood Wise Construction was a
business name Mr. Wise was using. He then stated that when he was sued by Wise
Construction, LLC, he knew Mr. Wise was suing in his company’s name because he had
made the progress payments to Wise Construction. Therefore, by his own admission, Mr.
Boyd acknowledged: (a) he was dealing with Wise Construction, not Mr. Wise; (b) suit
against him was by Wise Construction, LLC; (c) Wise Construction was Wise Construction,
LLC; and (d) Wise Construction, LLC was his contractor. Further, Mr. Boyd admitted
receiving the notice of liens, which, on their face, identify the claimant as Wise Construction,
LLC. Additionally, the building permit was taken out by Wise Construction, LLC.

        The evidence further reveals that when the alleged termination occurred, Mr. Boyd
sent a letter to Mr. Wise at Wise Construction, LLC, seeking copies of two change orders for
review. In the conclusion of the letter, he stated: “Once we have reviewed all change orders
and the original contract we will determine what, if any, monies are owed to Wise
Construction Company.” This evidence demonstrates the Boyds knew the contractor was not
Mr. Wise individually. While they may not have known the exact name of the entity with
which they were dealing, they were aware they were dealing with an entity distinct from Mr.
Wise individually.


                                              B.

       The Boyds also claim that the Contractor violated Tenn. Code Ann. § 48-207-101(a)
that requires the use of the words “limited liability company” or the abbreviation “LLC.”
Therefore, they contend that claiming “Wise Construction” is an effective version of “Wise
Construction, LLC” is contrary to the plain language of the statute. Additionally, they note
that any corporate entity desiring to use a fictitious or assumed name in addition to the name
appearing on its corporate charter is required to register such name with the Tennessee
Secretary of State. See Tenn. Code Ann. § 48-14-101(d). Likewise, any limited liability
company must register an assumed name with the Tennessee Secretary of State for it to be
effective. See Tenn. Code Ann. 48-207-101(d)(2).

       Under Tenn. Code Ann. § 48-207-101(d), an LLC may elect to adopt an assumed

                                              -10-
name and it need not contain the “LLC” designation. The statute provides that before
transacting business under the assumed name, the LLC shall file an application pursuant to
a resolution of the governing body. Failure to make such application may result in a
proceeding to administratively dissolve the LLC. See Tenn. Code Ann. § 48-245-301. The
assumed name adopted by Wise Construction, LLC – Wise Construction – was not registered
with the Secretary of State.

        In the case of Kemmons Wilson, Inc. v. Allied Bank of Texas, 836 S.W.2d 104 (Tenn.
Ct. App. 1992), the defendant raised the capacity of the plaintiff to sue for breach of contract
because the contract identified the party as Kemmons Wilson Companies. The contract was
governed by Texas law which, like Tennessee, required filing of assumed name certificates
with the secretary of state. Unlike Tennessee, Texas law provided that failure to comply with
the statutory provisions relating to an assumed name, while not impairing the validity of a
contract made in the assumed name, would prohibit maintaining an action on the contract in
Texas courts. We found the lack of registration did not bar the corporation from bringing its
lawsuit in Tennessee based upon a contract made in its assumed name. The argument that
Kemmons Wilson Companies did not represent an existing legal entity was rejected. The
lack of registration of the assumed name did not appear to affect the legal rights of the
entity.11

       A failure to adhere to licensing regulations may subject a licensee to disciplinary
action. However, we do not find that the violation before us would affect the legal rights
under the contract at issue.




                                                  C.

      The Boyds further submit that Mr. Wise manifested “an intention to abandon the
contract” and “to no longer be bound by the contract.” They assert that they did not
wrongfully terminate the contract because Mr. Wise resigned and invited them to find
someone else to finish the contract due to their dissatisfaction with his performance. They
contend Mr. Wise’s statement to “find someone else to finish the job” constituted the first
breach.



       11
         This case follows similar holdings of other cases in Tennessee where the assumed or misnomer of
a name arose. Lees v. Hickory Pointe L.P., 1996 WL 82682 (Tenn. Ct. App. 1996); Kelso Oil Co., Inc. v.
East West Truck Stop, Inc., 102 S.W.3d 655 (Tenn. Ct. App. 2002).


                                                 -11-
        The trial court rejected this argument, placing heavy reliance on Carter v. Krueger,
916 S.W.2d 92 (Tenn. Ct. App. 1995). In Carter, this court announced that notice and a
reasonable opportunity to cure defects in the performance of a contract is a sound principle.
Id. at 93. Such allows the party the opportunity “to repair the defective work, to reduce the
damages, to avoid additional defective performance, and to promote the informal settlement
of disputes.” Id. (citations omitted.) Requiring a party to a contract to give notice to the
defaulting party and a reasonable opportunity to cure defective work is sound, and the failure
to do so may preclude a complaining party from recovering damages. Custom Built Homes
by Ed Harris v. McNamara, No. M2004-02703-COA-R3-CV, 2006 WL 3613583, at *5.

       The trial court is in the best position to evaluate the evidence, judge the credibility of
the witnesses, and determine the true reason for and cause of the demise of the parties’
relationship. The trial court is “able to observe witnesses as they testify and to assess their
demeanor, which best situates trial judges to evaluate witness credibility.” Harley v.
Harrison, No. M2005-02099-COA-R3-CV, 2006 WL 2644372, at *3 (Tenn. Ct. App. Sept.
13, 2006) (citing State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990)) (other citations
omitted). Accordingly, we do “not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.” Harley, 2006 WL
2644372, at *3 (citing Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 316 (Tenn.
1987)) (other citations omitted).

       The contract involved in this matter was significantly (arguably 90%) completed when
the dispute between the parties occurred. The evidence of record raises questions whether
the Boyds were in a tight cash flow situation in the beginning of 2005. It appears that they
had exhausted most of their construction funds and were forced to obtain additional money
from a lender secured by property other than the house under construction (which had
undergone two appraisals by the construction lender to allow it to lend $622,000 initially and
then, one year later, raise that loan to $751,500). The date the Boyds obtained the additional
funds coincided with the date the disagreement arose between the Contractor and the
homeowners. The items necessary to complete the project would have to be paid by the
Boyds and were proving to be very expensive. The Contractor was pressing Mr. Boyd for
answers and to receive payment. Unfortunately, during the course of a phone conversation
with Mr. Boyd, Mr. Wise uttered: “if you’re that unhappy with me, why don’t you just pay
me what you owe me and get someone else to finish the job. I don’t know what else I can
do. If you want something done, tell me, and we’ll take care of it.” The Contractor opines
that the statement was viewed as a resignation to allow the Boyds a respite from the
construction costs. According to the Contractor however, he was not abandoning the
contract or refusing to be bound by it.




                                              -12-
        After examining the conflicting testimony provided by the parties, the trial court found
that the Contractor had not breached the contract. The trial court was in the best position to
weigh the testimony of the parties; the evidence of record does not preponderate against the
trial court’s findings. As the Contractor in this case had not abandoned the contract, the
Boyds were not relieved of the requirement to afford the Contractor the opportunity to cure.
See Brady v. Oliver, 147 S.W. 1135, 1138 (Tenn. 1911) (holding that where one party to a
contract announces in advance his intention not to perform, the other party may treat the
contract as broken, and sue at once for the breach).

      Because we have found that the trial court did not err in finding that Wise
Construction, LLC was the contracting party, the remaining issues presented by the parties
need not be addressed and are therefore pretermitted.


                                     V. CONCLUSION

       The judgment of the trial court is affirmed and this cause is remanded for collection
of costs below. The costs on appeal are assessed against the appellants, Tom Boyd and Lori
Boyd.




                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




                                              -13-
