IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE
FILED
January 8, 1998
LJB, INC., d/b/a LAUREL WOOD)
Cecil Crowson, Jr.
FARM, a Tennessee Corporation,
) HAMILTON CHANCERY
Appellate C ourt Clerk
and LAWRENCE J. BANNIER, )
)
Plaintiffs/Appellees ) NO. 03A01-9706-CH-00243
)
v. ) HON. HOWELL N. PEOPLES,
) Chancellor
BUFORD L. CRAIG, )
GLEN L. CRAIG, )
SOUTHERN GARDEN )
DESIGNS, INC., )
GLEN L. CRAIG, d/b/a )
BUFORD L. CRAIG GENERAL )
CONTRACTORS, INC., and )
SOUTHERN GARDEN DESIGNS, )
INC., d/b/a )
NORTH RIVER NURSERY, ) AFFIRMED
) AS MODIFIED
Defendants/Appellants ) AND REMANDED
W. Gerald Tidwell, Jr., Chattanooga, for the Appellants.
H. Owen Maddux, Chattanooga, for the Appellees.
OPINION
INMAN, Senior Judge
This is an action for damages for breach of contract involving the sale
of the assets of a corporation doing business as North River Nursery in
Chattanooga. The selling price was $370,000.00, to be paid $305,000.00 cash
and $65,000.00 in seven (7) promissory notes, each of which provides
“That all or a substantial portion of the debt evidenced hereby
shall be paid by work to be performed . . . . . as set out in a
letter . . . ”
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which recited that the obligor would rough clear 45 acres for $500.00 per acre,
windrow the brush for burning, disc clear land, and broadcast seed. Since the
debt would thereby be reduced by only $22,500.00, the parties later agreed
that the defendants would earn additional credits against the $65,000.00 in
promissory notes by constructing a barn on the premises for cost plus 15
percent.
In October 1992 the defendants claimed that the value of their work in
clearing the land and building the barn exceeded their $65,000.00 debt and quit
the project.
The plaintiff thereupon employed the same subcontractors previously
employed by the defendants and finished the barn. One year later, this action
was filed. The prolix complaint alleges, inter alia, that the plaintiffs demanded
that the defendants finish the clearing work. They also alleged that some of the
clearing work was ‘inept,’ because the brush was not windrowed for burning.
The critiquing allegations were denied by the defendants, who pleaded that the
work performed by them exceeded the amount of the notes.
The land clearing was described as pastures A, B and C. It is not
disputed that the plaintiff expended, after the defendants left the job, $2,000.00
to finish the clearing of pasture A and $7,545.00 to finish the clearing of
pasture B.
The trial court accepted the testimony of an expert witness, Tom Mills,
as to the cost to complete pasture A and pasture B and what it would cost to
complete pasture C, which Mills estimated at $17,360.00, and determined that
the plaintiffs were entitled to recover $65,000.00, evidenced by the notes plus
interest at ten percent per annum since November 1, 1992; damages for the
clearing of the land of $26,900.00, (pasture A, $2,000.00; pasture B,
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$7,545.00; and pasture C, $17,360.00), attorneys’ fees in the amount of
$15,000.00, and discretionary costs of $993.35. The total recovery was
$91,905.00, exclusive of interest, attorneys’ fees, and costs.
The Chancellor then allowed the defendants credits for the use of their
scaffolding, $1,944.00; $450.00 for the use of a generator; for clearing the land
a total of $15,930.00 (pasture A, $4,000.00; pasture B, $3250.00; pasture C,
$8,680.00); and labor, equipment, and supplies on the barn, $40,845.42; for a
total credit of $59,169.42, and entered judgment for $32,269.421 plus
$15,000.00 attorneys’ fees and costs.
The appellant presents two issues for review, which we reproduce
verbatim:
ISSUES
I. Did the court err in allowing damages in the amount of
$17,360.00 for completion of pasture C, which work had not been
done at the time of trial, constituting future damages and damages
which place the plaintiff in a better position than he would have
been had the contract been fulfilled?
II. Did the court err in allowing damages for failure to pay a
promissory note including the amount left owing, interest and
attorney’s fees, and also allowing damages for what essentially
appears to be negligence for work not completed on the pasture
land?
Our review of the findings of fact made by the trial court is de novo
upon the record of the trial court, accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is
otherwise. TENN. R. APP. P., RULE 13(d).
I
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Had the court calculated correctly, the total would have been $32,735.58: $91,905
damages less $51,169.42 credits.
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We think both issues must be answered in the affirmative. The
Chancellor found that for clearing a portion of the land and building the
elaborate barn the defendants earned a credit of $59,169.42 against their
$65,000.00 debt.2
By letter dated June 1, 1991 the defendants agreed to:
“ . . . provide sufficient equipment to clear 45 acres of treed land
for a fee of $500.00 per acre. This service shall include
windrowing of brush, discing cleared land and broadcasting seed
. . .”
Two months later, the series of promissory notes were executed, to
which we have alluded. It is significant to a resolution of this case that at the
behest of the plaintiff, the defendants shifted the focus of this work to the
construction of the elaborate barn. Under the agreements, as found by the
Chancellor, and considered in pari materia, the defendants owed only
$65,000.00. The barn work, valued at $40,845.42, diminished the debt,
leaving only $24,154.58 that could properly be claimed. This conclusion
leads to the issue of the value of the land clearing services performed by the
defendants and whether this value should be reduced by any amount of
damages for failure to windrow or failure to clear.
The appellants argue that they “owed the appellee value, not the
completion of a particular pasture or building.” We think this argument is
well-taken. The judgment as rendered places the plaintiff in a better position
than if the contract(s) had been fully and strictly performed. See, Action Ads,
Inc. v. William B. Tanner Co., Inc., 592 S.W.2d 572 (Tenn. App. 1979). The
plaintiff is not entitled to multiple damages for the same wrong. There is no
2
The technical record contains 105 pages, mos t of which are unnecessa ry. It does not, however,
include the judgment, the provisions of which we extrapolate from three (3) memorandum
opinions and the briefs.
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evidence that the clearing work performed by the defendants lacked value, or
was unnecessary; the complaint essentially is that the clearing and windrowing
were not completed. Because the defendants were working subject to a total
debt of $65,000.00, the intervention of the barn work must be taken into
account.
The Chancellor found that the work done by the defendants on parcels
A, B and C had a total value of $15,930.00, that the defendants also used their
scaffolding ($1,944.00) and generator ($450.00), and that the value of their
work on the barn was $40,845.42, aggregating a reasonable value of
$59,169.42 which, when offset from the aggregate of the promissory notes
[$65,000.00], leaves $5,830.58 owing.
We find the evidence preponderates against the finding that the
defendants are liable for any amounts paid, or to be paid, by the plaintiffs to
complete the clearing and windrowing of pastures A, B and C and bring them
up to the plaintiffs’ desired standards, since the defendants have paid their
$65,000.00 debt to the plaintiffs except for the above-mentioned $5,830.58.
Interest at 10 percent per annum beginning November 1, 1992 on
$5,930.58 is awarded.
Each of the promissory notes provides for reasonable attorney fees. The
appellant argues that the amount awarded by the court is excessive and beyond
the preponderance of the evidence. We agree.
We have examined the print-out of the services performed by the
attorney for the plaintiff, and we are unable to determine what portion of the
fee of $15,000.00 was allowed for the claim of damages; obviously, a fee of
$15,000.00 to recover a balance on the notes of less than $6,000.00 cannot be
justified. The rectification of this issue requires that the award of fees be
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vacated, and that the case be remanded for a determination of the proper
amount.
The judgment is modified and vacated accordingly and the case is
remanded. Costs are assessed to the appellee.
__________________________
William H. Inman, Senior Judge
CONCUR:
______________________________
Houston M. Goddard, Presiding Judge
___________________________________
Herschel P. Franks, Judge
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