Concrete Spaces, Inc. v. Sender

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

FILED
FOR PUBLICATION

CONCRETE SPACES, INC., ) Filed: August 30, 1999
FAUX FUR, INC., PAULETTE )
DALTON, STUART DALTON, )
) August 30, 1999
Plaintiffs/Appellants, ) DAVIDSON COUNTY
)
v. ) Hon. Whitney Stegall
) Chancellor Cecil Crowson, Jr.
HENRY SENDER, Individually, )
DARREN LIFF, ZACKARY LIFF, ) Appellate Court Clerk
HENRY SENDER, EUGENE SACKS )
and wife, RUTH SACKS, d/b/a LIFF, )
SENDER & SACKS, Tenants in )
Common, NATIONAL BUILDING )
CORP., ) Supreme Court
) No. 01S01-9812-CH-00224
Defendants/Appellees. )

FOR PLAINTIFFS/ APPELLANTS FOR DEFENDANTS/ APPELLEES
Steve North & Charles Hampton White
Mark North Richard L. Colbert
Madison, TN David A. King
Cornelius & Collins
Abby Rubenfeld Nashville, TN
Nashville, TN

OPINION

REMANDED FOR NEW TRIAL. DROWOTA, J.
 We granted this appeal to address the application of the election of

remedies doctrine in Tennessee and to clarify the proper procedure to be

implemented when a plaintiff is entitled to both punitive damages in conjunction

with a common law claim and to multiple damages pursuant to a statutory remedy.

We have determined that a plaintiff is entitled to a calculation of the amount of

punitive damages and multiple damages that are warranted under each theory of

liability. Only after these assessments are made is the plaintiff required to make

an election of remedies. Because this procedure was not implemented in this

case, we remand the cause to the trial court for a new trial.

BACKGROUND

This action arose from a dispute over a lease involving space in Cummins

Station, a piece of commercial property in Davidson County. Henry Sender,

along with four other investors, purchased Cummins Station, a five-story building

in downtown Nashville, in March 1993, with plans to renovate the eighty-six-year-

old structure and to attract commercial tenants. Paulette Dalton, who owned a

clothing boutique and an art gallery in downtown Nashville, learned in July 1993

that commercial space was available for lease in Cummins Station and became

interested in relocating her businesses to the renovated building. Ms. Dalton had

already begun negotiations with Gavin Gaskins, who managed several area

nightclubs, to relocate her boutique and gallery to a location where they could be

combined with a nightclub. Ms. Dalton and Mr. Gaskins thought the newly

renovated Cummins Station would provide adequate space and a prime location

for their project. They formed two corporations through which to conduct their

various businesses; Ms. Dalton and her husband incorporated Concrete Spaces,

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Inc. to manage the clothing boutique and art gallery, and Ms. Dalton and Mr.

Gaskins incorporated Faux Fur, Inc. to manage the nightclub.

After inspecting the available space in Cummins Station and becoming

satisfied that the property was suitable for their venture, Ms. Dalton and Mr.

Gaskins began negotiations to enter into a lease with Henry Sender and his son-

in-law, Michael Cooper, president of National Building Corporation (“NBC”), the

company managing the Cummins Station renovation project. Ms. Dalton asserted

her intent to open the businesses in October, and the leasing agents assured her

that she would be able to occupy the proposed space by October 1, 1993.

After considerable negotiations, the parties executed two leases on August

26, 1993. The Daltons entered into one lease on behalf of Concrete Spaces, Inc.

for the space to be used for the boutique and gallery, and Ms. Dalton and Mr.

Gaskins entered into the other on behalf of Faux Fur, Inc. for the space to be used

as a nightclub. Each lease was for a term of five years and provided for monthly

rent of $1,222.50. The leases also stipulated that additional improvements would

be made to the property and included an exhibit illustrating the areas to be

refurbished.

In the months following the execution of the leases, several disputes arose

between the parties over allocation of responsibility for the continued

improvements on the rented space. One of the most significant disagreements

concerned the obligation to pay for electrical work during renovation. Not

surprisingly, construction was delayed. Nevertheless, Ms. Dalton was able to

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conduct a grand opening of her clothing boutique and art gallery on October

22,1993.

Ms. Dalton successfully acquired insurance coverage for the inventory in

her shops because she obtained assurances from NBC that the building was

secure and that the fire sprinkler system was sufficient. Despite these

representations, Ms. Dalton’s boutique and art gallery were burglarized on two

occasions in October 1993. All of her inventory was stolen, along with a safe

containing $2,350 in cash, business documents, a stereo system and a cash

register. Ms. Dalton contended that Henry Sender and NBC should incur

responsibility for her extensive loss because she relied upon their assurances that

the building was secure. The lessors refused to reimburse Ms. Dalton, insisting

that her lease stipulated that she was responsible for the security of the space.

Ms. Dalton was unable to reopen the boutique and gallery and

concentrated instead on preparing for the grand opening of the nightclub she was

to operate with Mr. Gaskins. Because of construction delays, the club’s opening

was rescheduled from October 1993 until January 28, 1994. In the meantime, Ms.

Dalton and Mr. Gaskins continued to disagree with their lessors about

responsibility for the electrical work that had been completed in the leased space.

Moreover, in early January 1994, Ms. Dalton was unable to obtain beer and dance

permits because the lessors failed to provide her with a use and occupancy permit

and a certificate from the fire marshal. Relations between the parties steadily

worsened, culminating with Mr. Sender’s refusal to meet with Ms. Dalton. In early

November 1994, Mr. Gaskins informed Henry Sender that Faux Fur, Inc. was

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terminating its lease due to continual breaches by the lessors. Mr. Sender

asserted that he and NBC intended to hold Faux Fur, Inc. fully responsible for its

obligations under the lease.

Through an attorney, Ms. Dalton informed the lessors on April 6, 1994, that

they had breached the leases with Concrete Spaces, Inc. and Faux, Fur, Inc. by

delaying construction and by failing to obtain a use and occupancy permit from the

fire marshal. The attorney asserted that Ms. Dalton and Mr. Gaskins intended to

vacate the leased premises on April 11, 1994.

The Daltons and the two corporations filed suit on April 7, 1994, in the

Chancery Court for Davidson County against Henry Sender, NBC and the

partnership that owned Cummins Station. The plaintiffs sought compensatory,

punitive and treble damages under claims for breach of contract, negligent

misrepresentation, fraudulent misrepresentation and violation of the Tennessee

Consumer Protection Act. The essence of the Daltons’ claim was that Mr.

Sender and his business associates had deceived them about the quality and

availability of the space in Cummins Station and that Mr. Sender had “intentionally

carried on a systematic plan of harassment and lack of cooperation” to force them

to abandon their leases in order to enable him to lease the space to others on

more favorable terms. The lessors filed a counterclaim asserting that the plaintiffs

had breached the leases.

Following a nine-day trial, the trial court properly instructed the jury on the

elements of the plaintiffs’ common law claims, including breach of contract,

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intentional misrepresentation1 and negligent misrepresentation and on the

defendant’s counterclaim for breach of contract. The court also properly

instructed the jury that the plaintiffs were seeking punitive damages and that such

damages could be awarded only if the jury made an underlying award of

compensatory damages. However the trial court provided no initial instruction on

the Tennessee Consumer Protection Act. After deliberations had begun, the jury

requested a copy of the Consumer Protection Act. In response to this inquiry, the

trial court merely gave a cursory explanation of the Act’s purpose and informed

the jury that it was required to determine whether the plaintiffs had proven, by a

preponderance of the evidence, that the defendant engaged in an unfair and

deceptive business practice.

Compounding the confusion surrounding the jury instructions, the special

verdict form did not clarify the pivotal issues to be decided by the jury. Due to

poor drafting, both grammatical and substantive, the jury was not given an

opportunity to convey its findings under each theory of liability presented by the

plaintiffs. The special verdict form, reviewed by the parties and submitted to the

jury by the trial court, appears below with the jury’s responses.

1
The record in dicates th at the terms “intentional misrepresentation,” “fraudulent
misrepresentation” and “fraud” were used interchangeably by the court and partie s in re ferrin g to th is
cause of action. Because these terms are synonymous, we will refer to this claim as intentional
misre presen tation.

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 W e, the jury, in the cause of Con crete Spa ces , Inc., e t al. v. H enry Sen der, e t al.
find as follows:

1. We find for the plaintiff against the defendant and fix the
com pensa tory dam ages a t _$75,000 plus accru ed attorneys
fees through case closure .2

OR

2. We find for the defendant against the plaintiff and fix the
compensatory damages at __________.

3. We find that there was no meeting of the minds and, therefore, no
contrac t.3

YES _____ OR NO __X___

4. If com pen sato ry dam age s for the p laintiff were fixed by the jury,
then the jury will answer this question. Are the plaintiffs due
punitive damages.

YES __X___ OR NO _____

5. If you find that the plaintiffs are entitled to compensatory damages,
did such damages arise from an unfair or deceptive act or practice
by the defe ndants under th e Ten nesse e Con sum er Act [sic]?

YES __X___ OR NO _____

Since the jury awarded the plaintiffs $75,000 in compensatory damages

and indicated that punitive damages were warranted, all parties consented to a

hearing on punitive damages pursuant to Hodges v. S.C. Toof & Co., 833 S.W.2d

896, 901-902 (Tenn. 1992). At the conclusion of the hearing, the jury awarded the

plaintiffs $1,100,000 in punitive damages. The trial court subsequently remitted

that award to $500,000, the amount prayed for in the complaint.

2
The jury later clarified that it intended to include the $26,000 the p laintiff s had incur red in
attor neys fees up until trial in its award of $75,000, leaving a pure com pensa tory award of $49,0 00.

3
The special verdict form did not provide the jury with an opportunity to communicate whether
the contract had been breached.

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 The defendants appealed the judgment, primarily taking issue with the

punitive damages award. The Court of Appeals first recognized that punitive

damages are not available in conjunction with a claim under the Tennessee

Consumer Protection Act. See Lorentz v. Deardan, 834 S.W.2d 316, 320 (Tenn.

App. 1992); Paty v. Herb Adcox Chevrolet Co., 756 S.W.2d 697, 699 (Tenn. App.

1988). Because the jury awarded the plaintiffs punitive damages and also

indicated, in response to Question Five, that the award of compensatory damages

arose under the Tennessee Consumer Protection Act, the Court of Appeals

deemed the verdicts inconsistent.

The intermediate court stated that an inconsistent verdict “resolves no

conflicts and is no verdict at all,” see McInturff v. White, 565 S.W.2d 478, 481

(Tenn. 1976), and emphasized that no effect can be given “to a jury’s verdict

based on irreconcilably inconsistent answers to special interrogatories.” See Hock

v. New York Life Ins. Co., 876 P.2d 1242, 1259 (Colo. 1994); Carr v. Strode, 904

P.2d 489, 503 (Haw. 1995); Shamrock, Inc. v. FDIC, 679 N.E.2d 344, 349 (Mass.

Ct. App. 1994). Recognizing that verdicts have both a liability and a damages

component,4 the court concluded that the jury’s inconsistent findings related only

to damages and did not invalidate the verdict with respect to liability and

compensatory damages. Because punitive damages and treble damages may

not be recovered in the same action, see Lorentz, 834 S.W.2d at 320; Paty, 756

S.W.2d at 699, the Court of Appeals then vacated the award of punitive damages

as incompatible with the finding that compensatory damages arose from a

4
See All v. John Gerber Co., 36 Tenn. App. 134, 138, 252 S .W.2d 13 8, 139 (1952).

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violation of the Consumer Protection Act and remanded the case for a

determination of whether the compensatory damage award should be trebled in

accordance with the Consumer Protection Act pursuant to Tenn. Code Ann. § 47-

18-109(a)(3) & (4) (1995).5

Thereafter, we granted the plaintiffs’ application for permission to appeal.

Because the special verdict form employed at trial fails to provide information

necessary to articulate a judgment in this case, we vacate the decisions of the trial

court and the Court of Appeals and remand the case for a new trial.

THE ELECTION OF REMEDIES DOCTRINE

We begin our analysis of the issues in this appeal with an overview of the

relevant law. The doctrine of election of remedies is implicated when two

inconsistent and irreconcilable remedies are available to the plaintiff to redress a

single wrongful act. See Barger v. Webb, 391 S.W.2d 664, 667 (Tenn. 1965);

Allied Sound, Inc. v. Neely, 909 S.W.2d 815, 822 (Tenn. App. 1995). The

purpose of the doctrine is to prevent double redress for a single wrong, see

Barger, 391 S.W.2d at 667; Barnes v. Walker, 199 Tenn. 364, 368, 234 S.W.2d

648, 650 (Tenn. 1950), and it requires the plaintiff in such a scenario to choose

one theory of recovery under which to proceed. See Forbes v. Wilson County

Emergency Dist. 911 Bd., 966 S.W.2d 417, 421 (Tenn 1998).

5
Tenn. Code Ann. § 47-18-109(a)(3) (1995) provides that the trial court may award three times
the amount of actual damages sustained if it finds that the defendant’s use of the unfair or deceptive
act or pra ctice und er the Ac t was willful or k nowing .

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 At first glance there appears to be some discord between the doctrine of

election of remedies and Tenn. R. Civ. P. 8.01, which grants a plaintiff wide

latitude in pleading alternative claims for relief and pursuing an array of theories of

recovery in a single action. A common example of this friction occurs when a

plaintiff seeks multiple damages under an available statutory remedy as well as

punitive damages pursuant to a common law claim. While this type of alternative

pleading is available under Tenn. R. Civ. P. 8.01, double recovery may occur if the

jury decides that the plaintiff is entitled to both punitive damages and multiple

damages.

Almost every jurisdiction addressing this question has concluded that

recovery of both multiple statutory damages and punitive damages constitutes an

impermissible double recovery because the two forms of enhanced damages

serve the same functions. 6 The purpose of punitive damages is not to

compensate the plaintiff but to punish the wrongdoer and to deter others from

committing similar wrongs in the future. See Coffey v. Fayette Tubular Prod., 929

S.W.2d 326, 328 (Tenn. 1996); Hodges, 833 S.W.2d at 900. Several Tennessee

6
See Stoner v. Houston, 582 S.W .2d 28 (Ark. 1979); Cieri v. Leticia Query Realty, Inc., 905
P.2d 29 (Haw. 1995); Ciam pi v. Ogd en Ch rysler Plym outh , 634 N.E.2d 448 (Ill. App. C t. 1994); Osborne
v. Wenger , 572 N.E.2d 1343 (Ind. Ct. App. 1991); Johnson v. Tyler, 277 N.W .2d 617 ( Iowa 19 79); Ellis
v. Northern Star Co., 388 S.E.2d 127 (N .C. 1990); Bjorgen v. Kinsy, 466 N.W .2d 553 (N.D. 1991);
W agone r v. Benn ett, 814 P.2d 476 (O kla. 199 1); Adamson v. Marianne Fabric, Inc., 391 S.E.2d 249
(S.C. 1990); Birchfield v. Texarkana Mem’l Hosp., 747 S.W .2d 361 (Tex. 1987); John Mohr & Sons,
Inc. v. Johnke, 198 N.W .2d 363 ( W is. 1974). But see Neib el v. T rans world Assurance Co., 108 F.3d
1123, 1130 (9th Cir. 1997) (holding that a plaintiff may receive both treble damages under RICO and
state law punitive damages for the sa me c ourse o f condu ct); Freeman v. A. & M. Mobile Home Sales,
Inc., 359 S.E .2d 532, 5 36 (S.C . Ct. App. 1 987) (upholding an award of punitive damages based on
common law fraud and of treble damages pursuant to the Sou th Ca rolina Unf air Tra de P ractic e Ac t only
because the defe ndants never filed a motion requiring th e plaintiff to elec t her rem edy); Berry Pro perty
Mana gem ent, Inc. v. Bliskey, 850 S.W.2d 644, 665 (Tex. Ct. App. 1993) (holding that both punitive and
treble dam age s we re rec over able under the Texas Deceptive Trade Practices Act because each of the
plaint iff’s claims resulted from a distinct act; however because the plaintiff suffered only one
compe nsable injury, she could only be awarded one recovery for actual, com pensatory damag es).

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statutory schemes achieve the same objectives of punishment and deterrence

through multiple damage provisions, which allow for compensatory damages to be

trebled if the defendant’s conduct rises to a specified level of culpability. 7

Because multiple damages are punitive in nature and not intended to compensate

for the plaintiff’s injury, see Smith Corona Corp. v. Pelikan, Inc., 784 F. Supp. 452,

483 (M.D. Tenn. 1992); Lien v. Couch, 993 S.W.2d 53, 58 (Tenn. App. 1998), a

plaintiff cannot recover both punitive damages and multiple damages in the same

cause of action, even if they are each available, because receipt of both forms of

enhanced damages violates the principle against double recovery. See Edwards

v. Travelers Ins. of Hartford, Conn., 563 F.2d 105, 119-120 (6th Cir. 1977);

Lorentz, 834 S.W.2d at 320 (Tenn. App. 1992).

The Tennessee Consumer Protection Act provides that the trial court may

award three times the amount of actual damages sustained if a defendant’s use of

the unfair or deceptive act or practice under the Act was willful or knowing. Tenn.

Code Ann. § 47-18-109(a)(3)(1995). See also Smith v. Scott Lewis Chevrolet, Inc.,

843 S.W.2d 9, 12 (Tenn. App. 1992). This allowance for treble damages is

intended to be punitive rather than compensatory. See Smith Corona Corp., 784

F. Supp. at 483-84; Lien, 993 S.W.2d at 58. Accordingly, a plaintiff is precluded

7
See, e.g., Tenn. Code Ann. § 8-50-603 (199 3) (em ployee is entitled to treble damages and
attor neys fees if employer disciplined o r threaten ed to disc ipline or othe rwise interf ered with em ployee ’s
right to communicate with an elect ed of ficial) ; Ten n. Co de A nn. § 46-2 -411 (Sup p. 19 98) (c ourt s hall
award treble damages when a prevailing party proves fraud relative to a sales contract for ceme tery
merchandise and se rvices); T enn. Co de Ann . § 47-29 -101(d) (Supp. 1 998) (court shall award as
damages treble the face amount of a check or draft when person who executed and delivered the
check poss ess ed fr aud ulent inten t in not paying the holder the full amount within 30 days); Tenn. Code
Ann. § 48-101-520(b)(1) (1995) (court may award treble damages if defendant’s use of an unfair, false
or misleading solicitation of charitable funds was willful or knowing); Tenn. Code Ann. § 62-37-105(e)
(1990) (one who enga ges in the construction or home improvement business without a license may
be sub ject to treble dam ages).

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from recovering both types of enhanced damages under the Act. See Lorentz,

834 S.W.2d at 320; Paty, 756 S.W.2d at 699.8

When a plaintiff is entitled to both punitive damages in conjunction with a

common law claim for relief and to treble damages under a statutory scheme, the

majority of jurisdictions employ a version of the election of remedies doctrine to

prevent double recovery of enhanced damages. Commentators suggest that two

general trends have developed with respect to how and when the plaintiff’s

election is to be implemented.9 The most prevalent approach allows the plaintiff to

submit to the fact finder all theories of recovery, including the standards for both

punitive damages and multiple damages. If the jury (and judge, in some

instances) determines that the plaintiff is entitled to both forms of enhanced

damages, the plaintiff may request that the amount of damages under each

8
S om e courts have interpreted a statute declaring itself to be a non-exclusive rem edy to entitle
plaintiffs to recover both treble damages under the statute and punitive damages pursuant to a
common law claim in a single ac tion. See, e.g. Rhue v. Dawson, 841 P.2d 215, 228 (Ariz. 1992)
(holding that plaintiff could recover both treble damages under state racketeering statute and punitive
damages under fraud and breach of fiduciary duty claims because the statute provided that actions
brought under it are “rem edial and n ot punitive” a nd that civil rem edies pro vided un der it are
“supplemental and not mutually exclusive”); Toyota of Florence v. Lynch, 442 S.E.2d 611, 616 (S.C.
1994) (holding that plaintiff could recover both doubled damages under the state “Regulation of
Manu facturer s, Distributo rs and D ealers A ct” and pu nitive dam ages in c onnec tion with the common
law claim because the Act expressly allows both types of damages). Ensuring that the Tennessee
Consumer Protection Act will not inhibit plaintiffs from pleading other theories of recovery in addition
to the Act, the General Assembly included decisive language in the Act that provides that “[t]he powers
and remedies provided in this part shall be cum ulative and supplementary to all other powers and
remedies otherwise provided by law.” Tenn. Code Ann. § 47 -18-112 (1995). See also Myint v. Allstate
Ins. Co., 970 S.W .2d 920, 9 26 (Te nn. 1998 ); Morris v. Mack’s Us ed Cars , 824 S.W.2d 538, 539-40
(Tenn. 1992); Laymance v. Vaughn, 857 S.W.2d 36, 37 (Tenn. App. 1992). However the non-exclusive
nature of the Ten nes see Con sum er Pr otec tion A ct do es no t over ride th e we ll-settled principle that
recove ry of both m ultiple dam ages p ursuan t to a statute and of punitive damages in conne ction with
c om m on law claim s am ounts to a n impr oper du plicative rec overy. See Smith Corona Corp., 784 F.
Supp. at 483; Lien, 993 S.W .2d at 58. Even though a plaintiff may pursue any number of common law
claim s in con junc tion w ith the statu tory ca use of ac tion, th e plain tiff will b e req uired to sele ct either
treble damages or punitive damages, in the event each are awarded.

9
See gen erally Lisa K. G regory, An notation, Plaintiff’s Righ ts to Punitive or Multiple Damages
W hen Cau se of Actio n Re nde rs Bo th Av ailable , 2 A.L.R. 5 th 449, 45 9 (1992 ).

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remedy be determined before making an election of which remedy he or she

would like the judgment to reflect.10

Two objectives are achieved by allowing the plaintiff to select an award of

damages after the judge and jury have decided all the issues surrounding liability

and the entitlement and amount of enhanced damages: one, improper double

recovery is prevented, and two, the goal of deterrence is realized. See Eastern

Star, Inc. v. Union Bldg. Materials Corp., 712 P.2d 1148, 1159 (Haw. 1985). Most

courts that have adopted this approach agree with the rationale of the court in

Mapp v. Toyota World, Inc., 344 S.E.2d 297, 301 (N.C. 1986), which observed

that “it would be manifestly unfair to require plaintiffs in such cases to elect before

10
See Grogan v. Garner, 806 F.2d 829, 839 (8th Cir. 1986) (recognizing that when a statutory
federal securities claim o verlaps w ith a pend ent state law claim, once a determination of liability and
damages is made under each claim, the plaintiff is “entitled to the greatest amount recoverable under
any single theory pled ....”); SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1284 (8th Cir. 1981)
(hold ing th at the trial co urt er red b y denyin g plain tiff’s re que st to in struc t the ju ry on a ll its claim s and
to subm it a special ve rdict form and by instead requiring the plaintiff to elect between its statutory
antitrust claim and its common law tort claims to be submitted to the jury); Bill Te rry’s, In c. v. A tlantic
Motor Sales, Inc., 409 So.2d 507, 509 (Fla. Dist. Ct. App. 1982) (concluding that p laintiff ma y subm it
all claim s to the jury and tha t plaintiff is entitled to th e higher a ward be tween p unitives in co nnection with
the common law fraud claims and treble damages under the Federal Odo meter Disclosure S tatute);
Cieri v. Leticia Query Realty, Inc., 905 P.2d 29, 46 (H aw. 199 5) (holding that a plaintiff is e ntitled to
either statutory treble damages or punitive damages, whichever is the greater); Harris v. Manor
Healthcare Corp., 489 N.E.2d 1374, 138 1 (Ill. 1986)(h olding that w here plain tiffs were e ntitled to
recover both treble damages and punitive damages under the Illinois Nursing Home Care R eform Act,
both issue s co uld be submitted to the jury and the plaintiff could choose which award to be reflected
in the judgm ent); Hale v. Basin Motor Co., 795 P.2d 1006, 1012 (N.M. 1990) (holding that where a
plaintiff is entitled to treble damages under its state Unfair Trade Practices Act and to punitive damages
under com mon law claim s of frau d, trial court sh ould hav e subm itted each theory of rec overy to the jury
and then allowed plaintiff to elect between the awards with duplicative elements); Ace C hem . Corp.,
v. DSI Transports, Inc., 446 S.E.2d 100, 105 (N.C. Ct. App. 1994) (holding that trial court erred by
requiring plaintiff to select which remedy to submit to the jury because plaintiff was allow ed to elec t its
remedy between punitive damages and statuto ry treble after the jury's verdict on all claims was
rendered). Som e courts mere ly state that the higher award should automatically be reflected in the final
judgm ent. See Purin a Mills , Inc. v . Ode ll, 948 S.W.2d 927, 940 (Tex. C t. App. 1997) (holding that when
a prevailing pa rty fails to elect be tween alternative measures of damages, the court must enter
judgment reflecting the findings affording the greater recovery); Birch field v . Tex arka na M em ’l Hosp.,
747 S.W.2d 361, 367 (Tex. 1987) (holding that where a prevailing party fails to elect between
alternative measures of damages, the court should utilize the findings affording the greater recovery
and ren der judg men t accord ingly).

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the jury has answered the issues and the trial court has determined whether to

treble the compensatory damages found by the jury . . . .” Moreover, submitting

incompatible and alternative theories of recovery to a jury creates no conflict or

duplicative award because until the jury makes its findings of liability, no double

recovery can exist. Any duplicative aspect of the jury’s findings is eliminated when

the plaintiff makes an election. See Butler v. Joseph’s Wine Shop, Inc., 633

S.W.2d 926, 933 (Tex. App. 1982). Another advantage to letting the fact finder

decide each theory of recovery is that all the findings on liability and damages are

preserved for review. See SuperTurf, 660 F.2d 1275, 1279 (8th Cir. 1981).

A very small minority of jurisdictions requires plaintiffs to make an election

of remedies before the issues are submitted to the fact finder. 11 See Rivers v. Ex-

Cell-O Corp., 300 N.W.2d 420 (Mich. Ct. App. 1980); Johnson v. Jensen, 446

N.W.2d 664 (Minn. 1989). The theory behind this approach is that plaintiffs

should not be entitled to implement, with the benefit of hindsight, their most

advantageous remedy. See Johnson, 446 N.W.2d at 666.

We agree with the reasoning of the majority of jurisdictions confronted with

this issue that it would be unfair to require election before a determination of

liability and entitlement to punitive damages and multiple damages has been

made. In so concluding, we agree with the plaintiffs that this approach does not

11
See gen erally Grego ry, supra note 9. The Court of Appeals seemed to adopt th e mino rity
approach of the election of remedies doctrine. It instructed th at “[i]n order to prevent a double recovery
of exemplary dam ages, the trial court should require the plaintiff to decide whether it will pursue punitive
dam ages in accordance with the Hodges v. S.C. Toof & Co. decision or whether it will pursue treble
damages in accordance with Tenn. Code Ann. § 47-18-109(a)(3) & (4).” This language implies that
plaintiffs are not en titled to an as sessm ent by the jur y and judg e of the am ounts of each form of
enhan ced da mag es befo re ma king an election of r eme dies.

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unduly burden a defendant who has been found liable under more than one

theory of recovery. The majority rule simply allows a plaintiff to realize the

maximum recovery available under the fact finders’ findings. Given the punitive

and deterrent purposes of punitive and multiple damages, such a result is entirely

proper.

The majority approach is also consistent with our Rules of Civil Procedure,

which reflect the notion that plaintiffs are free to pursue several alternative

theories of recovery and to structure their claims in the manner that is most

beneficial to them.12 Again, the election of remedies doctrine serves only to

prevent double redress for a single wrong. See Wimley v. Rudolph, 931 S.W.2d

513, 515 (Tenn. 1996); Allied Sound, Inc., 909 S.W.2d at 822. If a defendant has

been found liable under more than one theory of recovery, no inequity results from

allowing the plaintiff to choose one of the claims upon which to realize its

maximum recovery of enhanced damages. In other words, no danger of double

recovery exists unless the plaintiff actually realizes satisfaction of both forms of

enhanced damages. See Freeman v. Myers, 774 S.W.2d 892, 895 (Mo. App.

1989).

PROCEDURE IN SUITS INVOLVING MULTIPLE CLAIMS

When a plaintiff pursues relief under more than one theory of recovery, the

risk is great that the jury will become confused as to the types of enhanced

damages permissible under each theory of liability. This risk is of particular

12
Tenn. R. C iv. P. 8 .01 p rovid es th at “re lief in the alternative or of several different types may
be dem anded .”

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concern when the jury is merely asked to return a general verdict. When using a

general verdict it is difficult to ascertain which portion of a compensatory award is

attributable to a violation of the relevant statute, which might be trebled, and which

portion is attributable to the defendant’s breach of a common law duty, which

might serve as a basis for an award of punitive damages. Both to preserve the

jury’s findings and to facilitate the plaintiff’s ability to elect damages, it is essential

that the jury’s liability determinations reflect the underlying claims upon which they

are based. No two jury trials will be alike, and there are no blanket rules or catch-

all standards that can be articulated to fully explain how instructions and special

interrogatories should be presented to juries in every case. However, in order to

avoid the confusion that has occurred in this case, the following general, common

sense principles should guide attorneys and judges in preparing both jury

instructions and special verdict forms in cases involving multiple theories of liability

and various types of damages.

Courts should provide separate jury instructions for each theory of liability

that clearly explain the elements of each claim, thus enabling the jury to consider

whether the plaintiff has met its burden of proof with respect to each. The

standards for any available enhanced damages should be explained in

conjunction with the instructions for each underlying theory of recovery. For

example, the intentional, fraudulent, malicious or willful standard for punitive

damages required by Hodges, 833 S.W.2d at 900-901, should be explained within

the separate instructions for the underlying common law claims. Likewise, if the

jury is to decide the requisite culpability for multiple damages under a statute, an

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explanation of that standard should be given in conjunction with the instructions

for that particular statutory claim.13

As the Court of Appeals in this case recognized, the most effective

approach in dealing with multiple claims for relief is to require the jury to respond

either to a general verdict form accompanied by special interrogatories or to a

special verdict form that has been prepared to parallel the instructions to the jury

on each claim. Tenn. R. Civ. P. 49 accords trial courts great latitude in using

special verdict forms and tailoring special interrogatories to meet the needs of

each unique case.14 See Petty v. Estate of Nichols, 569 S.W.2d 840, 847 (Tenn.

App. 1977). As the intermediate court summarized:

Special verdict forms should use the same terms as those used in
the jury instructions. See Lundquist v. Nickels, 605 N.E.2d 1373,
1389 (Ill. Ct. App. 1992). They should repeat and highlight the
salient issues discussed in the instructions. See Kass v. Great
Coastal Express, Inc., 676 A.2d 1099, 1107 (N.J. Super. 1996).
Inconsistencies with jury instructions and the special verdict form
may confuse the jury. See Ladd v. Honda Motor Co., 939 S.W.2d
83, 103 (Tenn. App. 1996).

13
W hile we agree with the Court of Appeals that carefully prepared jury instructions and
companion special verdict forms can alleviate confusion when juries must apply different standards
under multiple claims for relief, we disagree with the interm edia te court’s statement that the jury
assesses whether the defendant’s conduct met the knowing and willful standard necessary to impose
treble damage s under the Consu mer Protection Act. Ten n. Code Ann. § 47-18-1 09(a)(3) (1995)
provides that it is the trial court, and not the jury, that determines whether the defendant’s violation was
knowing and willful. If the trial co urt finds the requisite culpability, it may then apply the factors set forth
at Tenn. Code Ann. § 47-18-109(a)(4) to decide whether to award treble damages. The Court of
Appeals’ opinion therefore incorrectly instructs trial courts to submit to the jury the issue of whether a
defend ant has acted in a know ing and w illful mann er in suits invo lving the Co nsum er Protec tion Act.

14
Tenn. R. Civ. P. 4 9.01 per mits trial c ourts to require the use of a special verdict form
comprised of detailed factual questions for the ju ry. Spe cial ve rdicts elicit specific findings from the jury
that cove r eve ry fac tual is sue raise d by the pleadings and evidence, including responses to each
element of the common law claims p lead. These responses enable the trial court to articulate a
judgm ent as a m atter of law. More common than special verdicts, general verdicts accompanied by
special interrogatories are permitted by Tenn. R. Civ. P. 49.02. General verdicts and interrogatories,
which are usually more concise than special verdicts, call upon the jury to render a general finding of
liability and also require the jury to answer certain key questions that clarify the basis for the finding of
liability and that are “nec essary to a verdict.” The pu rpose o f the interrog atories is to te st the validity
and co nsistenc y of the gen eral verdic t.

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 If a statutory remedy requires the jury to make a determination of the

requisite culpability for multiple damages, the jury should be required to make that

determination on its special verdict form. Alternatively, if the statute requires the

trial court to assess whether multiple damages are warranted, as does the

Tennessee Consumer Protection Act, then the issue of multiple damages should

be decided by the trial court, after the jury renders an initial determination of

liability, regardless of whether the jury has also awarded punitive damages

pursuant to a common law claim. In the same manner, if punitive damages are

sought, and the jury finds that the defendant acted intentionally, fraudulently,

maliciously or recklessly in accordance with Hodges, 833 S.W.2d at 901, the

plaintiff may then request a hearing to calculate the amount of the award. Only

after the amount of punitive damages and multiple damages have been assessed

is the plaintiff required to make an election between the two types of remedies.

CONCLUSION

Applying the above-stated principles to the facts in this case, we first note

that it is difficult to sift through the array of problems that characterize the special

verdict form at issue this case. Despite the plaintiff’s assertion that the verdict

form “covered every contested issue that needed to be presented to the jury,” the

verdict form failed to address at least four of the central issues in the case:

whether the plaintiffs or defendants breached the lease agreement, whether the

defendants were liable for negligent misrepresentation and whether the

defendants were liable for intentional misrepresentation. Finally, and most

importantly, the special verdict form did not require the jury to specify whether it

based the award of punitive damages upon a common law claim.

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 Tennessee law is well-established that litigants are entitled to have their

rights settled by a consistent and intelligible verdict and that verdicts that are

inconsistent and irreconcilable cannot stand. See Milliken v. Smith, 218 Tenn.

665, 668, 405 S.W.2d 475, 476 (1966); Alabama Highway Express, Inc. v. Luster,

51 Tenn. App. 691, 696, 371 S.W .2d 182, 183 (1963); Penley v. Glover, 30 Tenn.

App. 289, 292, 205 S.W.2d 757, 759 (1947). Where a judgment is based upon

inconsistent findings by a jury it is the duty of the appellate court to reverse and

remand the case for a new trial. See McInturff, 565 S.W.2d at 482; Berry v.

Foster, 199 Tenn. 352, 356, 287 S.W.2d 16, 18 (1955); Penley, 30 Tenn. App. at

292, 205 S.W.2d at 759.

A new trial is also warranted when verdict forms are composed in such a

faulty fashion that they do not address each of the plaintiffs’ theories of recovery

and do not allow the jury to adequately respond to each claim. Well-settled law

requires courts to construe the terms of a verdict in a manner that upholds the

jury’s findings, if it is able to do so. See Briscoe v. Allison, 200 Tenn. 115, 125-26,

290 S.W.2d 864, 868 (1956). Even if a verdict is defective in form, it is to be

enforced if it sufficiently defines an issue in such a way as to enable the court to

intelligently articulate a judgment. See Arcata Graphics Co. v. Heidelberg Harris,

Inc., 874 S.W.2d 522, 527 (Tenn. App. 1993).

After closely reviewing the record, we conclude that the Court of Appeals

erred in vacating only the award of punitive damages. The Court of Appeals

concluded that the punitive damages award was improper because punitive

damages are not available under the Consumer Protection Act, see Lorentz, 834

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S.W.2d at 320; Paty, 756 S.W.2d at 699. This conclusion assumes that the entire

award of compensatory damages was based on the jury’s finding of a violation of

the Consumer Protection Act. While the jury certainly found a violation of the

Consumer Protection Act, the special verdict form did not afford the jury an

opportunity to indicate whether the award of compensatory damages also arose

from one of the plaintiffs’ common law claims, such as the claim for intentional

misrepresentation, which would support an award of punitive damages. Because

of the deficient verdict form, essential information was not elicited from the jury,

and the theories supporting the jury’s award of compensatory damages cannot be

ascertained. In our view, it is speculative to conclude, as did the Court of Appeals,

that the compensatory award was premised solely on a violation of the Tennessee

Consumer Protection Act and that the award of punitive damages was improper.15

We agree with the Court of Appeals that the trial court failed to instruct the

jury that punitive damages are not available under the Act, and we emphasize that

the trial court should have made clear to the jury that it could not award punitive

damages based upon a violation of the Consumer Protection Act. The trial court’s

omission certainly leaves open the possibility that the jury wrongly awarded

punitive damages in conjunction with the Consumer Protection Act rather than in

15
The Court of App eals mistakenly believed that a verdict form containing a misstatement of
the law contrib uted to the jury’s misunderstanding about the relationship between the Consumer
Protection Act and punitive da mag es. T he record reveals that due to some ove rsight the trial court
read a verdict form to the jury that erroneously indicated that punitive damages were available under
the Consumer Protection Act. However the error was imm ediat ely bro ugh t to the trial co urt’s attention
and an explanation and corrected reading were provided to the jury. The special verdict form that
contained the error was never submitted to the jury. To the contrary, although the jury was provided
with two s epa rate v erdic t form s dur ing its first tw o days of deliberation, the two forms were identical and
bore the corrected version of the special interrogatories. Therefore, contrary to the Court of Appeals’
conclusion, the jury was never given a verdict form that contained a m isstatement that punitive
dam ages a re available under th e Ten nesse e Con sum er Protec tion Act.

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connection with a common law claim for recovery. Although we cannot assume

that the jury understood the relevant law, since it was not properly instructed, we

decline to assume the inverse, as did the Court of Appeals, that the jury found

only a violation of the Consumer Protection Act. The verdict form utilized in this

case is simply too ambiguous and incomplete to support such a conclusion.

Without a clear record of the theories supporting the jury’s finding of liability, we

cannot determine which form of enhanced damages is warranted in this case.

Accordingly, we have no choice but to remand this case for a new trial in which

the issues can be clearly articulated and a decisive verdict can be rendered.

Upon remand, the trial court should make every effort to comply with the

guidelines set forth in this opinion and to facilitate the plaintiffs’ election of

remedies in the event they become entitled to both punitive damages and treble

damages under the Tennessee Consumer Protection Act. Costs of this appeal

are taxed equally against the defendants.

_____________________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C. J.
Birch, Holder, Barker, JJ.

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