OPINION
delivered the opinion of the court,
This appeal arises from a dispute over the construction of a church. Both parties alleged that the other breached the construction contract. The trial court found the Church to be in breach, awarded damages to the Contractor, and this appeal ensued. We affirm in part and reverse in part.
In May, 1994 General Construction Contractors Association, Inc., d/b/a General Construction Contractor Associates, Inc. (GCCA) entered into a contract with Greater Saint Thomas Baptist Church (Church) to construct a church facility in Memphis, Tennessee. Construction began on this facility in August of the same year. Problems during the construction increased the cost of the job, and a dispute arose between GCCA and the Church over who was responsible for paying these increases. The dispute resulted in a verbal agreement by the Church to pay part of the increased costs. To avoid future problems, it was decided that all remaining correspondence between GCCA and the Church should pass through a surety company. This company would receive GCCA’s invoices and pay them. Also during this meeting, Church approved the payment of the first “draw” to the surety company. 1
In mid-October, GCCA ceased work on the site stating that additions or corrections to the plans and specifications would be needed before construction could continue. Shortly thereafter, GCCA submitted a second “draw” application to the surety company, including some items included from the first “draw” request, but not yet paid. The Church did take steps to check the second “draw” request, though it never paid any money on it. In November, an attorney for the Church requested, pursuant to its contract rights, copies of documents related to GCCA’s construction work. GCCA responded with a letter stating it was owed several thousand dollars by the Church through its failure to pay its “draw” requests and that “[GCCA would] not continue to do all of the work and not be compensated.” GCCA then referred all future correspondence from the Church to its legal counsel. In December, Church notified GCCA it was terminating the contract for “nonper
On December 30, 1998 the Church filed a Motion to Alter or Amend/New Trial. GCCA responded to this motion with its own Motion to Strike, stating that an ‘attorney of record’ had not filed the motion within the required period. Upon receiving a copy of GCCA’s motion, the Church’s trial lawyer signed the motion. Nevertheless, the trial court granted the ‘Motion to Strike.’ On appeal to this Court (Church I), the Church argued that an undisputed ‘attorney of record’ had signed the motion as permitted under the Tennessee Rules of Civil Procedure. In an order dated October 9, 2000 this Court agreed that the trial court’s granting of the ‘Motion to Strike’ was in error and remanded the case for consideration of the Church’s ‘Motion to Alter or Amend/New Trial.’ The Church, as Appellant in Church I, had presented several additional issues for decision by this Court, which we declined to address as they did not bear upon our decision. In remanding the case, this Court noted that the trial court had never considered the Church’s motion on its merits and specifically stated that either party would have the option to perfect a timely appeal following such a ruling by the trial court. In other words, the only issue before this Court in Church I was the propriety of the order granting GCCA’s Motion to Strike. The other issues raised by Appellant were, therefore, not addressed.
On February 8, 2001, subsequent to this Court’s decision, but prior to the trial court’s ruling on the Motion to Alter or Amend/New Trial, the Church submitted a First Amendment to Motion to Alter/New Trial, adding thirteen additional assignments of error to the four alleged in the original motion. The trial court denied the Church’s Motion to Amend/New Trial by an order dated June 15, 2001. In the order the chancellor specifically stated that the order was based upon, inter alia, “Defendant’s First Amendment to Motion to Alter Judgment/For New Trial....” This appeal followed.
Appellant presented twelve (12) issues on appeal, discussion of the following six
(1) The Chancellor erred in concluding that the Church breached the contract and in concluding that GCCA did not breach the contract.
(2) The Chancellor erred in the construction and/or application of the construction contract by failing to conclude same was an absolute contract containing the contractor’s express warranty that the plans and specifications were sufficient to complete the work and obligated the contractor to perform any misdes-cribed or omitted work without additional cost to the owner.
(3) The Chancellor erred in failing to conclude that the contractor received payment of all sums due contractor under the first draw request and contractor’s delivery, pursuant to agreement, of said funds to the surety for payment of contractor’s bills on the project, merely constituted the surety the agent of the contractor for payment of the bills, and the contractor’s contention that it “received no money” from the project does not constitute non-payment by the Church.
(4) The Chancellor erred in awarding compensatory damages in the amount of $35, 868.54 in that the “unpaid bills” and “expenses” claimed by the contractor and awarded by the Chancellor had either been paid by the Church on the first draw request or were unearned by the contractor or were otherwise not established by a preponderance of the evidence.
(5) The Chancellor erred in awarding contractor $76,200 for lost profits since the evidence does not establish the likelihood that the contractor sustained any damage in the form of lost profits and the award of lost profits is based on conjecture and speculation.
(6)The Chancellor erred in awarding prejudgment interest from October 10, 1994 to date of Final Judgment on December 2,1998.
Additionally, Appellee raises the following two issues:
(1) That “[t]he issue of any breach of contract by GCCA was adjudicated, is res judicata, and is precluded from re-consideration in this appeal. The Trial Court’s judgment on the Appellant’s Counterclaim that GCCA did not breach the contract is “the law of the case,” [sic] therefore, all Appellant’s arguments on appeal that GCCA breached and should not recover are precluded[,]” and
(2) that numerous issues of the Appellant “were never addressed or raised at trial, nor timely presented in a post-trial motion, and are therefore precluded from consideration in this appeal.”
Standard of Review
In a civil action we review a trial court’s findings of fact
de novo
upon the record of the trial court. Such review is accompanied by a presumption of correctness, unless the evidence preponderates against such findings. Tenn. R.App. P. 13(d);
Brooks v. Brooks,
Appellee’s Issues
At the outset, we address the issues raised by Appellee. Appellee argues that the issues contained in Appellant’s First Amendment to Motion to Amend/
Appellee also contends that the Trial Court’s “judgment on the Appellant's Counterclaim that GCCA did not breach the contract is ‘the law of the case’, [sic] therefore, all Appellant’s arguments on appeal that GCCA breached and should not recover are precluded.” This contention is also without merit.
The Tennessee Supreme Court has stated that “[t]he phrase ‘law of the ease’ refers to a legal doctrine which generally prohibits reconsideration of issues that have already been decided
in a prior appeal
of the same case.”
Memphis Publ’g Co. v. Tenn. Petrol. Underground Storage Tank Bd.,
The Contract Breach
The trial court held that GST breached the contract in question by failing to pay the second draw request within the time provided in the contract. This was a factual determination and, therefore, is afforded a presumption of correctness, unless the preponderance of the evidence suggests otherwise. Tenn. R.App. P. 13(d). After a thorough review of the record, and the attendant exhibits, we cannot say that the evidence preponderates against the finding of the trial court that GST breached the contract by failing to pay the second draw request per the terms of the contract.
Characterization
GST alleges that the chancellor erred in the construction and/or application of the construction contract by failing to conclude same was an absolute contract containing the contractor’s express warranty that the plans and specifications were sufficient to complete the work and obligated the contractor to perform any mis-described or omitted work without additional cost to the owner. While this question of characterization plays no part in the analysis of which party breached the contract, it is necessary for the proper computation of damages and, therefore, must be addressed.
“In the absence of fraud or mistake, courts should construe contracts as written.”
Marshall v. Jackson & Jones Oils, Inc.,
Appellee further contends that the provisions in the contract allowing for change orders, and those addressing measures to be taken if problems with the contract documents were noted, somehow make this interpretation an erroneous one. Mindful that “[a]ll provisions of a contract should be construed as in harmony with each other, if such construction can be reasonably made, so as to avoid repugnan-cy between the several provisions of a single contract[,]”
Rainey v. Stansell,
This provision for additional costs to be borne by GST negates GST’s assertion that GCCA was obligated to perform any and all misdescribed or omitted work without additional cost to GST. By the terms of the contract, it was GCCA’s duty to notify GST of any discrepancy, and it was GST’s duty to respond to that notice. If the discrepancy was of such magnitude that the Church decided a Change Order was appropriate (which only GST possessed the power to decide) then any additional work would result in increased cost to the Church. Accordingly, the trial court erred in its finding that the contract at issue was not an absolute, or fixed price contract, but did not err in finding that GCCA was not required to absorb all costs resulting from discrepancies in the contract documents. GCCA could avoid bearing the cost of work necessitated by discrepancies in the contract documents, but only by following the aforementioned procedure and allowing GST to initiate a change order.
As noted, notwithstanding the fixed price, or lump sum, nature of the contract, the contract provided a procedure by which the parties were to correct “any error, inconsistency, omission or discrepancy or variance in the Contract Documents .In such a case the Contractor was to “notify the Owner of any errors discovered at least two (2) days before beginning the affected portion of the work[,]” at which time “[t]he Owner shall make any correction, interpretation or clarification promptly, basing its decision on the intent of the Contract Documents.” This provision, when considered in concert with various other provisions of the contract, GCCA argues, results in ambiguity as to who is responsible for corrections to the Contract Documents. We fail to find this provision ambiguous. It clearly places the duty of correction, interpretation or clarification of the Contract Documents, as opposed to the physical work itself, upon GST. This duty was to be triggered by notice of such discrepancies by GCCA. Even assuming, however, that the language of the contract is ambiguous, it doesn’t change the end result for “the language of [a] contract, where ambiguous, will be construed most strongly against the party who drew it[,]” in this case, GST.
Hanover Ins. Co. v. Haney,
This procedure was not followed in the case of the concrete slab. Mr. White testified that the change order that GCCA attempted to submit was never signed or approved by GST. GCCA contends that they had no choice but to go ahead and pour the extra concrete, which may be entirely true. Unfortunately for GCCA, however, the immediacy of the situation does not bear upon GST’s duty to pay for the changes. As discussed, the only way for GCCA to be reimbursed over and above the lump sum price was per a valid Change Order. Per the contract, only GST had the power to initiate a Change Order. GCCA’s failure to give GST the required notice as to the deficiency in the Contract Documents with regards to the concrete slab, thereby not allowing GST to initiate the Change Order procedure, is fatal to their claim for damages resulting from the inconsistencies in the plans and specifications. “It is the function of a court to interpret and enforce contracts as they are written, notwithstanding they may contain terms which may be thought harsh and unjust.”
Smit-hart v. John Hancock Mut. Life Ins. Co.,
Determination of the amount due GCCA for the work done on the concrete slab necessitates a discussion of the effect of the agreement between GST, GCCA, the Bank and the Surety as to how draw payments were to be made. The parties concur that an agreement was reached at the meeting between GST, GCCA, the Bank and the Surety held on September 27th, 1994 providing that the bank would pay any funds approved per draw requests to the bonding company instead of GCCA and the bonding company would in turn pay the subcontractors based upon invoices submitted by GCCA.
Acknowledging that an agent is “simply one who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter[,]”
Sec. Fed. Sav. & Loan Ass’n v. Riviera, Ltd.,
GCCA contends that they “received no money” from the first draw request. This contention is without merit. GCCA received $21,570 which they subsequently endorsed over to their agent for payment of the funds to subcontractors. GCCA retained full control over how the funds were to be disbursed. The surety, as agent, was only authorized to make payments to those subcontractors from which the agent received invoices from GCCA. GCCA, therefore, retained full control over which subcontractors would be paid. If the bill for the concrete work was not paid, it was not because the Church failed to pay. If the surety or GCCA decided to use the funds earmarked for the payment of the concrete work to pay other invoices, whether valid or not, they did so at their own peril, for the Church had fully paid for all items listed on the first draw request, including the concrete. Accordingly, GCCA is not entitled to the $8,700.09 requested for the concrete slab nor the $7,686.20 requested for sand and concrete finishing. These sums represent bills for work already paid on the first draw request, or amounts reflected in the change order GCCA submitted which, as discussed, is a nudity. As such, the trial court’s award of these amounts is reversed.
Salaries
As part of the $85,868.54 that GCCA claims as damages flowing from GST’s breach, $8,000 is claimed to be owing for “salaries.” Determination of the propriety of awarding this sum to GCCA requires revisiting the testimony of Mr. White as to the how salaries were computed for this job.
Q: You got an item on here, eight thousand dollars, salaries, GCCA, Inc. I think actually somewhere there is an item that reflects these are salaries from August 1st of 1994 to the end of September; is that correct?
A: That would be correct.
Q: Salaries, eight thousand dollars. Mr. White, I don’t see anything in your application document, I don’t see anything in your job breakdown that reflects a contract price that has a separate category called salaries. Can you tell me if there is one in here?
A: No, sir, there is not one in here, there is not one in there and there is not one on any contract, on any breakdown that we have got over the last few years.
Q: So, actually, salaries are figured into all these other items, aren’t they?
A: Yes, they are.
THE COURT: What do you mean all the other items or every item, which one?
WITNESS: Every item.
Mr. White’s own testimony makes it clear that this request for “salary,” in addition to the request for payment of specific items would, if granted, amount to a windfall for GCCA. Accordingly, the $8,000 in damages awarded by the trial court was in error and that portion of the damages award is reversed.
GCCA also claims that GST owes $2,540 for “demolition” and $4,525 for “job set-up.” The first draw request, for which GCCA received $21,570, included $8,000 for demolition-the full amount allotted for that task. As discussed, GST met its payment obligation for all items listed on the first draw request. As the $8,000 represented the total amount that GCCA may claim for such work, GST’s obligation as to payment for “demolition” was fully satisfied upon payment of the first draw request. Accordingly, the trial court’s award of $2,540 for “demolition” was in error and is reversed. Likewise, GST paid $2,000 toward “job set-up” on the first draw, an amount which must be applied to the $4,525 claimed by GCCA as a set off. To allow the full $4,525 award to stand would result in GCCA being paid $6,525 for “job set-up” when the total amount to be received for all such work, per the contract, was $4,525. The award for “job-set up” is therefore reduced by the $2,000 already paid, for a total award of $2,525. The award of the remaining damages reflected in the lien, $6,942.25 (arrived at by subtracting the $8,700.09 for concrete work, $8,000.00 for salaries, $7,686.20 for concrete finishing, $2,540.00 for demolition, and the $2,000.00 already paid towards job set-up, from $35,868.54), is affirmed as the evidence does not preponderate against such an award.
Lost Profíts
Tennessee allows recovery for “lost or expected profits ... as damages for breach of contract, provided they can be proved with reasonable certainty, and are not in fact remote or speculative.”
Morristown Lincoln-Mercury, Inc. v. Roy N. Lotspeich Publ’g Inc.,
42 TenmApp. 92,
Q: Okay. What is your profit margin on a construction contract?
A: It varies. We try to get fifteen percent. It varies between eleven and a half to fifteen percent. It varies.
Q: All right. When you bid a contract, though, do you build in the fifteen percent?
A: Normally you do.
Q: Okay. Can your company do as many contracts as it can get?
A: Yes.
Q: So, how much did GCCA lose? How much would GCCA lose on this contract if the contract were not to be performed?
A: Well, you would lose your profit margin. Whatever your profit margin would be, you would lose that.
Q: Okay. And on this contract, that was fifteen percent?
A: Yes.
On cross examination, while being questioned about employee salaries, Mr. White provided the following insight into how he arrived at the stated profit margin:
Q: Salaries, eight thousand dollars. Mr. White, I don’t see anything in your application document, I don’t see anything in your job breakdown that reflects a contract price that has a separate category called salaries. Can you tell me if there is one in here?
A: No, sir, there is not one in here, there is not one in there and there is not one on any contract, on any breakdown that we have got over the last few years.
Q: So, actually, salaries are figured into all these other items, aren’t they?
A: Yes, they are.
THE COURT: What do you mean all the other items or every item, which one?
WITNESS: Every item.
THE COURT: The percentage goes to salary?
WITNESS: And overhead.
THE COURT: Is there a fixed percentage normally? How do you know what to take out for salaries is what I’m trying to determine.
WITNESS: Well, basically, I guess-well, basically, what you do is you separate your profit and your salaries from your overhead and you figure that your overhead is going to run five and a half percent on the job, that is how you are going to come up with your—
THE COURT: What is left is salary? WITNESS: That would be the salary and then you come up with the profit after that.
The testimony of Mr. White was the only proof offered as to lost profits. We are aware that “[w]hen lost profits are the proper measure of damages, they need only be proved with reasonable certainty, not with mathematical precision.”
McClain v. Kimbrough Constr. Co.,
Prejudgment Interest
Appellant disputes the chancellor’s award of prejudgment interest for the period between the trial date, May 3, 1996 and December 2, 1998, the date the trial court entered its “Final Judgment.” Appellant argues that to allow an award of interest for this period, during which the trial court held the case under advisement, is an abuse of discretion.
There are, however, circumstances which may make the award of prejudgment interest inappropriate, including situations where “the party seeking prejudgment interest has been ... inexcusably dilatory in pursuing a claim [or] has unreasonably delayed the proceedings after suit was filed [or such party] has already been otherwise compensated for the lost time value of -its money.”
Id.
(internal citations omitted). While this is certainly not an all inclusive list of reasons justifying the denial of prejudgment interest, it is clear that none are applicable in this case. The delay complained of by Appellant was not caused by , any action of the Appellee, nor for that matter any action of the Appellant. While it may seem unjust to Appellant that the meter continued to run on the accrual of interest during the time that the trial court held the case under advisement, it could be viewed as equally unjust to the Appellee to discount this time in computing the total amount of damages due. The trial court was required to “decide whether the award of prejudgment interest [was] fair, given the particular circumstances of the case.”
Myint,
Conclusion
In summary, we affirm the trial court’s conclusion that the defendant, Greater Saint Thomas Baptist Church breached the contract. The award of lost profits is reversed. The judgment of the trial court is modified by reducing the judgment to $6,942.25. The award of prejudgment interest is affirmed. In addition, equity demands that we modify GST’s judgment against the Surety to reflect the total amount of this judgment. The judgment is, therefore, so modified.
The judgment of the trial court is affirmed as modified and this case is remanded. We tax the costs of this appeal equally to Appellee, GCCA, and Appellant, GST, and its surety for which execution, if necessary, may issue.
Notes
. A "draw” is a partial payment for work completed in a construction contract. In this case, a "draw” request would be submitted to the Church. The Church's representative would check and approve all or part of the "draw” request and those approved funds would be paid to GCCA.
. GCCA's Notice of Lien was registered and recorded in the Shelby County Registrar’s Office on December 22, 1994. Notice of the lien was contemporaneously received by the Church.
. It should be noted that GST was granted a judgment against the Surety in the amount of $112,068.35, who could not be located and was never served. This amount differs from the amount awarded GCCA by a mere nineteen cents, and presumably was meant to reflect the actual judgment against GST. If the Surety were to be subsequently located, and this judgment were allowed to stand, the result would be a windfall for GST. Accordingly, GST’s judgment against the Surety is modified to reflect the amount of the final judgment on this appeal.
. The correctness of this interpretation, and GCCA's understanding of it, is supported by the following statement of Mr. White, contained within a letter to Rev. Harris dated November 18, 1994: "Although, [sic] this is a fixed contract it does not give the owner the right to take advantage of this contract when he knowing [sic] knew that the structure documents did not portray an accurate concept of the building.” (emphasis added)
. The contract contained the following provision:
a) The increase in the Lump Sum Price attributable to a Change Order performed by the Contractor or any of its subcontractors shall not exceed the sum of the following:(i) The actual labor cost to perform the Change Order, including insurance and taxes;
(ii) The actual unit cost of materials used in performing the Change Order, including sales taxes. (iii) The subcontractor’s total price to Contractor for the Change; and
(iv) The actual cost for additional bond.
. This is not to say that a modification may never be appropriate in such circumstances.
See, e.g., Varner Constr. Co. v. Marrs,
No. W2000-01029-COA-R3-CV,