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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

WHITE'S ELECTRIC, HEATING, AIR AND PLUMBING,

) ) ) Plaintiff/Appellee, ) ) v. ) ) LEWIS CONSTRUCTION COMPANY, ) a/k/a TOMMY LEWIS ) CONSTRUCTION COMPANY AND ) FRONTIER INSURANCE COMPANY, ) ) Defendants/Appellants. )

FILED
August 11, 1999 Madison Chancery No. 51088 Cecil Crowson, Jr. Appellate Court Clerk Appeal No. 02A01-9803-CH-00064

APPEAL FROM THE CHANCERY COURT OF MADISON COUNTY AT JACKSON, TENNESSEE

THE HONORABLE JOE C. MORRIS, CHANCELLOR

For the Plaintiff/Appellee: Gerald B. Kirksey J. Timothy Crenshaw Brentwood, Tennessee

For the Defendants/Appellants: Ralph D. Golden Memphis, Tennessee

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

HOLLY KIRBY LILLARD, J.

CONCURS: ALAN E. HIGHERS, J. DAVID R. FARMER, J.

OPINION This is a construction contract case. The plaintiff subcontractor sued the general contractor and the general contractor's surety seeking unpaid contract payments and damages for delays in performance of the construction contract. The trial court awarded the plaintiff damages for breach of contract and for disruption and delay. We affirm in part, reverse in part, and remand. Lewis Construction Company ("Lewis Construction") was the general contractor for a construction project with the Jackson Housing Authority ("JHA") to renovate public housing facilities in Jackson, Tennessee. The original contract between the JHA and Lewis Construction contained a project deadline of November 15, 1994, or 278 days. The prime contract deadline was subsequently extended by agreement to September 5, 1995. The project was to be completed in three separate phases, with Phase I to be completed before Phase II began and so forth. Frontier Insurance Company ("Frontier Insurance") served as Lewis Construction's surety on the project. Lewis Construction and Frontier Insurance will be referred to collectively as the Defendants. White's Electric, Heating, Air and Plumbing ("White's Plumbing") was the plumbing subcontractor for the construction project. White's Plumbing submitted a bid proposal to Lewis Construction in the amount of $151,000. The proposal referenced the plans and specifications for the project contained in a project manual distributed by Lewis Construction to potential subcontractors. White's Plumbing's proposal was accepted by Lewis Construction on February 22, 1994. The subcontract between White's Plumbing and Lewis Construction provided that White's Plumbing would provide labor, supplies, and material for installation of water lines, sanitary vent lines, plumbing fixtures, and gas lines "per plans and specifications for Jackson Housing Authority Modernization Program." The subcontract provided that Lewis Construction was to pay White's Plumbing "per specifications." subcontract did not contain a completion date. White's Plumbing began work on the project on March 4, 1994, and completed its work on the project on April 18, 1995. Two change orders in the record showed that the parties increased the contract price by $1790, making the total due White's Plumbing under the contract $152,790. Lewis Construction paid White's Plumbing $138,651.34 under the subcontract, but withheld the $14,138.66 retainage. The

White's Plumbing filed a lawsuit on October 13, 1995 against Lewis Construction and Frontier Insurance. The complaint alleged that Lewis Construction caused damages to White's Plumbing by delaying White's Plumbing's completion of its work on the project, thereby increasing White's Plumbing's costs and decreasing its profits. White's Plumbing asserted that Lewis Construction caused delay by failing to perform necessary site work and clean up, making changes in the normal sequence for completion of the work, and failing to coordinate the work of other subcontractors. White's Plumbing also alleged that Lewis Construction had refused to pay for work that White's Plumbing performed under various change orders to the subcontract. White's Plumbing contended that Lewis Construction violated the Prompt Pay Act, Tennessee Code Annotated

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