IN THE COURT OF APPEALS OF TENNESSEE
THEOREN J. MURVIN and
MELODY S. MURVIN,
)
)
FILED
C/A NO. 03A01-9702-CH-00055
) December 8, 1997
Plaintiffs-Appellees, )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
v. ) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CHANCERY COURT
)
)
)
)
THOMAS F. COFER and )
CYNTHIA H. COFER, )
) HONORABLE HOWELL N. PEOPLES,
Defendants-Appellants. ) CHANCELLOR
For Appellants For Appellees
JERRY H. SUMMERS PAUL CAMPBELL III
JIMMY F. RODGERS, JR. WILLIAM R. HANNAH
Summers & Wyatt, P.C. Campbell & Campbell
Chattanooga, Tennessee Chattanooga, Tennessee
OPINION
VACATED IN PART
AFFIRMED IN PART
REMANDED WITH INSTRUCTIONS Susano, J.
1
This dispute arose out of the sale of a residence in
Signal Mountain, Tennessee. The trial court found that the
sellers, Thomas F. Cofer and wife, Cynthia H. Cofer, had violated
the Tennessee Consumer Protection Act of 1977 (“the Act”) in
connection with the sale of their five-bedroom, two and a half-
bath residence to the plaintiffs, Theoren J. Murvin and wife,
Melody S. Murvin. The Cofers appealed, arguing that the Act does
not apply to this transaction, and that the evidence does not
show that the Cofers “knowingly withheld information from the
[Murvins] to constitute fraud.”
The Murvins contend, on the other hand, (1) that the
evidence does not preponderate against the trial court’s finding
that the Cofers willfully and affirmatively misrepresented the
condition of the property; (2) that the Act applies to this
transaction; (3) that the defendants cannot rely upon the
inapplicability of the Act because they agreed in the trial court
that it was applicable; (4) that, even if the Act is not
applicable to the facts of this case, there is sufficient
evidence in the record to sustain the trial court’s judgment on
the plaintiffs’ alternative theories of recovery; (5) that we
erred in staying execution of the judgment; and, finally, (6)
that this appeal is frivolous, entitling the plaintiffs to
damages pursuant to T.C.A. § 27-1-122.1
1
T.C.A. § 27-1-122 provides as follows:
When it appears to any reviewing court that the appeal
from any court of record was frivolous or taken solely
for delay, the court may, either upon motion of a
party or of its own motion, award just damages against
the appellant, which may include but need not be
limited to, costs, interest on the judgment, and
expenses incurred by the appellee as a result of the
appeal.
2
I. Standard of Review
Our review of this non-jury case is de novo on the
record; however, that record comes to us with a presumption that
the trial court’s factual findings are correct. Rule 13(d),
T.R.A.P. We must honor this presumption unless we find that the
evidence preponderates against those findings. Id.; Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The
trial court’s conclusions of law, however, are not afforded the
same deference. Campbell v. Florida Steel, 919 S.W.2d 26, 35
(Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.
1993).
Our de novo review is tempered by the well-established
rule that the trial court is in the best position to assess the
credibility of the witnesses; accordingly, such credibility
determinations are entitled to great weight on appeal.
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);
Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991). In fact,
this court has noted that
...on an issue which hinges on witness
credibility, [the trial court] will not be
reversed unless, other than the oral
testimony of the witnesses, there is found in
the record clear, concrete and convincing
evidence to the contrary.
Tennessee Valley Kaolin v. Perry, 526 S.W.2d 488, 490 (Tenn.App.
1974).
3
4
II. Facts
The plaintiffs purchased the subject residence for
$174,500. The purchase was closed on April 15, 1994. The
plaintiffs first saw and toured the house on February 20, 1994,
at which time they were furnished a three-page document signed by
the defendants entitled “Seller’s Disclosure of Condition of
Property.” The plaintiffs were at the house for approximately an
hour, during which time they did not notice any problems.
On April 16, 1994, the plaintiffs moved into their new
residence. Following their occupancy, rain produced water leaks
from the upstairs ceiling and water in the basement. Thereafter,
they discovered numerous structural and other problems.
The plaintiffs sued the defendants on April 26, 1995.
Their complaint sought “equitable remedies and legal damages”
against the defendants “for fraud, intentional and/or negligent
misrepresentation, breach of contract, and negligence.” After
reciting facts to demonstrate the trial court’s jurisdiction and
venue, the complaint sets forth a “factual background.” The
remainder of the allegations of the complaint are grouped under
three headings: violations of the Act; common law fraud; and
negligent construction and repair. The complaint prays for
damages, attorney’s fees, and costs under the Act, including
treble damages under T.C.A. § 47-18-109(a)(3).2 In the
2
T.C.A. § 47-18-109(a)(3) provides as follows:
If the court finds that the use or employment of the
unfair or deceptive act or practice was a willful or
knowing violation of this part, the court may award
three (3) times the actual damages sustained and may
5
alternative, the complaint seeks compensatory and punitive
damages “for defendants’ fraudulent misrepresentations.”
The defendants’ answer, among other things, denies the
plaintiffs’ operative allegations under the Act. As particularly
pertinent to one of the issues before us on this appeal, the
defendants responded that they
would show that [the defendant Mr. Cofer] has
not engaged in the business of a residential
builder or a general contractor,...
III. Trial Court’s Judgment
The trial court found that the plaintiffs were entitled
to compensatory damages of $4,294 as a result of damage done to
the driveway and front lawn by the defendants at and about the
time they moved from the subject residence. The court
specifically found that these damages, while compensable, “were
[not] caused...by the violations of the...Act.”
Turning to the plaintiffs’ other complaints regarding
structural, water-related and numerous other defects and
deficiencies, the trial court made specific findings:
The Court finds that the plaintiffs relied
upon the [defendants’] disclosure documents
in purchasing the house. The plaintiffs may
also have relied upon an inspection to be
made...by a Veterans Administration
inspector; however, the fact that they may
provide such other relief as it considers necessary
and proper.
6
have also relied upon that inspection does
not take away from the fact that
7
in making the purchase, the offer and price,
and also in weighing the
inspection by a VA
inspector, they were also
entitled to rely upon the
disclosures made by the
defendants.
The Court finds that the defendants are not
engaged in the business of building houses
for resale, that the house in question was
initially built by the defendants to be used
as their residence, and they subsequently
determined that they would sell that house
after they had contracted to purchase another
house.
The Court finds that there were significant
problems with the house at 2908 Reynard
Trail, and that those problems preexisted the
sale of the house to the plaintiffs, and that
the defendants had an obligation to disclose
certain of those problems to the plaintiffs.
This duty of disclosure arises under the
Tennessee Consumer Protection Act found at
TCA 47-18-101 and subsequent numbers.
The defendants also made a disclosure
required of persons selling real
estate,...and that disclosure was incomplete,
and at least in certain areas, incorrect.
In pertinent part, the Court finds that the
disclosure statement...should have at least
revealed the fact that the house had never
passed inspection by the Building Inspector,
that there were problems with the stairwell,
and that the house had not been constructed
by a licensed builder or contractor, that
there had been leaks in the roof, and that
the problems of water and mud in the basement
had not been cured.
It’s significant to note that both Mr. Cofer
and his realtor admitted in their testimony
that he failed to disclose matters that a
buyer would want to know prior to purchase of
a house.
* * *
Mr. Greer [the plaintiffs’ expert] has also
testified as to other defects in the home
which he attributed in part to poor
construction, in part to violations of
building codes, in part to the use of
improper materials, and in part to poor
workmanship. These matters all can be traced
8
to the fact that an unlicensed contractor or
builder...construct[ed] this home. It can be
traced to the fact that the home never passed
a final building inspection. The amount
necessary to correct these problems as
testified by Mr. Greer was $40,403.
The trial court then concluded that the actual damages associated
with the defendants’ violations of the Act should be doubled:
In an action of this nature under the
Consumer Protection Act, TCA 14-18-109
provides that the Court may award treble
damages for a violation of the Act, if the
Court finds that the unfair or deceptive act
or practice was a willful or knowing
violation of the Act.
In this case, the Court does find that there
was a willful or knowing violation of the
Act.
Finally, the trial court held that the plaintiffs were entitled
to recover reasonable attorney’s fees under T.C.A. § 47-18-
109(e)(1)3 and later set those fees at $15,669.95.
The court awarded a total judgment of $100,769.95,
broken down as follows:
Damages not associated with the Act $ 4,294.00
Actual damages under the Act 40,403.00
Double damages under the Act 40,403.00
Attorney’s Fees 15,669.95
$100,769.95
===========
3
T.C.A. § 47-18-109(e)(1) provides as follows:
Upon a finding by the court that a provision of this
part has been violated, the court may award to the
person bringing such action reasonable attorney’s fees
and costs.
9
10
IV. Ganzevoort v. Russell
After this case was tried, the Supreme Court released
its opinion in the case of Ganzevoort v. Russell, 949 S.W.2d 293
(Tenn. 1997). A unanimous Supreme Court ruled that the Act does
not apply when, as in Ganzevoort, the defendant is “not in the
business of selling property as owners or brokers.” Id. at 298.
In so holding, the Court relied heavily upon the fact that two of
the stated purposes of the Act, as set forth in T.C.A. § 47-18-
102(2)&(4) refer, respectively, to “unfair and deceptive acts or
practices in the conduct of any trade or commerce” and “persons
engaged in business.” 949 S.W.2d at 298. (Emphasis added.) The
court pointed out that
[a]lthough this language does not explicitly
exclude from the Act sellers not in the
business of selling property as owners or
brokers, a reasonable construction is that
they are not included.
The Supreme Court, in affirming the Court of Appeals’ reversal of
the trial court’s judgment in favor of the purchasers of a
residence, specifically stated that it reached a “different
conclusion” from that arrived at in the decision of the District
Court in the case of Klotz v. Underwood, 563 F.Supp. 335, 337
(E.D. Tenn. 1982), aff’d, 709 F.2d 1504 (6th Cir. 1983). See
Ganzevoort, 949 S.W.2d at 298 n.3. In holding that the Act
applied to the sale of a residence between a homeowner and
purchaser, the federal court had stated that it did not
11
find any persuasive indication in the Act
that it does not apply to isolated sales
between individuals.
Id. at 337. Klotz was later followed in the unreported Tennessee
Court of Appeals’ case of Edwards v. Bruce, C/A No. 01A01-9510-
CH-00458, 1996 WL 383294 (Court of Appeals at Nashville, July 10,
1996).
The plaintiffs in the instant case relied at trial on
the Klotz and Edwards cases in arguing that the Act applies to
the instant case even though the Cofers were not engaged in the
business of selling houses.4
The plaintiffs argue before us that there are
significant differences between Ganzevoort and the instant case
and that those differences are such as to militate in favor of a
ruling that the Act does apply to the instant sale. They rely
heavily upon the fact that Mr. Cofer, in effect, acted as his own
contractor when he built his house in 1989: he hired and paid the
subcontractors, he arranged for the permits, and, to the extent
the construction was supervised, he did so. They also point out
that in Ganzevoort the sellers had no information regarding
defects in the house other than as reported to them by their
realtor and a carpenter hired to correct the problems; that the
purchasers in Ganzevoort did not rely on anything that the
sellers said about the house; that the sellers in that case tried
4
Apparently, the trial court’s attention was not called to another
unreported decision of the Court of Appeals that expressly disagreed with the
conclusion reached in the Klotz case. See White v. Eastland, C/A No. 01A01-
9009-CV-00329, 1991 WL 149735 (Court of Appeals at Nashville, August 9, 1991).
12
to correct the problems; that the sellers in Ganzevoort did not
act as their own contractor; and that there were no statements or
representations regarding the residence’s condition in that case.
The plaintiffs also rely on the following language in
Ganzevoort:
Brokers, agents and other professional
sellers of real property have knowledge and
information superior both in quantity and
quality to that of an average residential
purchaser regarding factors and conditions
that affect the value of the property they
are offering for sale.
Id. at 299. This statement was made in connection with the
Supreme Court’s analysis of the real estate agent’s liability in
that case. While it is true that the Cofers, and particularly
Mr. Cofer, had superior knowledge regarding the problems with the
house, this does not change the fact that the basic holding of
Ganzevoort--that the Act does not apply to a sale by an
individual not in the business of selling houses--applies with
equal force to the factual scenario before us. As we read
Ganzevoort, the criteria for applying the Act is not the extent
of a seller’s knowledge--sellers almost always have more
knowledge about their houses than do buyers--but whether or not
the seller is engaged in the business of selling houses. The
defendants in Ganzevoort were not; the Cofers were not. We find
and hold that the Act does not apply to the subject transaction.
13
V. Waiver and Prospective Application
The plaintiffs contend that even if the Act does not
apply to this transaction, the defendants cannot rely upon its
inapplicability because, according to the plaintiffs, the
defendants did not assert this position at trial. They rely upon
those cases holding that “questions not raised in the trial court
will not be entertained on appeal.” Lawrence v. Stanford, 655
S.W.2d 927, 929 (Tenn. 1983). See also Tops Bar-B-Q, Inc. v.
Stringer, 582 S.W.2d 756, 758 (Tenn.App. 1977); Devorak v.
Patterson, 907 S.W.2d 815, 818 (Tenn.App. 1995); Atkins v.
Kirkpatrick, 823 S.W.2d 547, 551 (Tenn.App. 1991).
When this case was tried below, both sides believed,
based on the Klotz and Edwards cases, that the Act applied to a
casual sale of a residence between individuals. The plaintiffs
asserted this in their trial brief, and counsel for the
defendants expressed his view of the then-current state of the
law when he remarked in his opening statement as follows:
...I think the [plaintiffs’] trial brief
insofar as it talks about the law accurately
states the law with respect to the Consumer
Protection Act. That Act has now been
expanded to cover real estate. We don’t
quarrel with that.
In closing argument, counsel for the defendants again stated that
[t]he Consumer Protection Act certainly does
cover real estate. That’s been established.
I don’t quarrel with that.
14
The plaintiffs argue that these statements reflect that it was
the defendants’ position below that the Act applied to the
transaction before the court and that this position precludes
them from raising a Ganzevoort defense in this case. We
disagree.
The defendants’ answer controverted all of the
plaintiffs’ allegations with respect to the Act. It had the
effect of denying each and every element of the plaintiffs’
alleged cause of action under the Act, including the plaintiffs’
allegation that the Act applies to the facts of this case. If
the Act did not apply, the plaintiffs could not rely on its
provisions to sustain their claim for damages. All of the
elements of the plaintiffs’ alleged cause of action under the
Act--including its applicability--were “in play” as a result of
the issues made by the pleadings. As previously indicated, the
answer specifically states that the defendants are not engaged in
the business of selling houses--the linchpin of the ruling in
Ganzevoort.
We do not understand counsel’s comments as a waiver of
the issues made in the pleadings. While it is true that both
parties believed, based on the Klotz and Edwards cases, that the
Act applied, we cannot find in the record before us any conduct
on the part of the defendants or their counsel that would
preclude their reliance on Ganzevoort on this appeal. Both
parties--and also the trial judge--proceeded on the assumption
that Klotz and Edwards expressed “good law.” Ganzevoort, after
15
the fact, held otherwise. The issue was sufficiently raised
below to allow the defendants to raise it here. Furthermore, it
is clear “that questions of law are not subject to stipulation by
the parties to a lawsuit and that a stipulation purporting to
state a proposition of law is a nullity.” Mast Advertising &
Publishing, Inc. v. Moyers, 865 S.W.2d 900, 902 (Tenn. 1993).
As to the plaintiffs’ argument that Ganzevoort should
be given prospective application only, we find nothing in that
case to suggest that it should not apply to the facts of this
case. In Ganzevoort, the Supreme Court held, in effect, that the
Act has never been applicable to a casual sale of a residence.
The fact that there was a holding of a federal district court and
a decision of the Court of Appeals to the contrary does not
change this fact. This is not a case where the Supreme Court
changes the law and specifically limits the cases to which it is
applicable. See, e.g., McIntyre v. Balentine, 833 S.W.2d 52, 58
(Tenn. 1992). The Supreme Court interpreted the Act as
originally enacted. This means that the inapplicability of the
Act to a casual sale of a residence has always been the law even
though it was only recently pronounced authoritatively by the
Supreme Court.
We find and hold that the issue of whether the Act
applies to the facts of this case was before the lower court; is
controlled by Ganzevoort; and is properly before us.
16
VI. Basic Damage Award
Having determined that no portion of the judgment below
can be predicated on a finding that these casual sellers violated
the Act, we now turn to the plaintiffs’ argument that the damages
found to be associated with the Act can be sustained on one or
more of the plaintiffs’ alternate theories. We agree that the
basic damage award associated with alleged violations of the Act
can be upheld on the plaintiffs’ alternative theory of common law
fraud.
The elements of a fraud claim are set forth in the case
of Stacks v. Saunders, 812 S.W.2d 587 (Tenn.App. 1990):
The basic elements for a fraud action are:
(1) an intentional misrepresentation with
regard to a material fact, (citation
omitted); (2) knowledge of the representation
falsity--that the representation was made
“knowingly” or “without belief in its truth,”
or “recklessly” without regard to its truth
or falsity, (citation omitted); (3) that the
plaintiff reasonably relied on the
misrepresentation and suffered damage,
(citations omitted); and (4) that the
misrepresentation relates to an existing or
past fact, (citation omitted),...
Id. at 592. This subject is further addressed in the case of
Lonning v. Jim Walter Homes, Inc., 725 S.W.2d 682 (Tenn.App.
1986):
For concealment or non-disclosure to
constitute fraud, the party charged with
fraud must have knowledge of an existing fact
or condition and a duty to disclose the fact
or condition. (Citation omitted). A party
to a contract has a duty to disclose to the
17
other party any material fact affecting the
essence of the subject matter of the
contract, unless ordinary diligence would
have revealed the undisclosed fact.
Id. at 685.
In the instant case, the trial court found that the
defendants “fail[ed] to adequately and completely disclose
factors that were of importance to the purchaser of a house,
information which was known to the defendants and not easily or
readily obtainable by the plaintiffs.” The trial court found
that the disclosure statement signed by the defendants “was
incomplete, and at least in certain areas, incorrect.” The court
found that these misrepresentations were made willfully or
knowingly.
The evidence does not preponderate against these
findings. While the lower court did not openly question the
credibility of Mr. Cofer, its findings of fact necessarily
involve a finding that he lacked credibility. As previously
indicated, this credibility determination is entitled to great
weight on this appeal as we evaluate the preponderance of the
evidence. See Tennessee Valley Kaolin, 526 S.W.2d at 490.
The court found--and the evidence does not preponderate
against such a finding--that the defendants failed to reveal to
the purchasers that the house had failed three inspections by the
building inspector, even though the defendant Mr. Cofer
acknowledged that this was something in which a purchaser would
be interested. This fact was not reflected on the disclosure
18
statement, despite the fact the statement had the following
request for information:
Please state any other facts or information
relating to this property that would be of
concern to a buyer.
Furthermore, there was an abundance of proof from which the trial
court could and did find that the disclosure statement failed to
reveal a problem with water in the basement and leaks in the
roof. While the disclosure statement did disclose prior water
problems in the basement, it also reflected that those problems
had been “corrected by [a] sump pump.” When asked on the
statement if the roof “leak[ed] or has it previously leaked,” the
defendants checked the “No” line. There was evidence, and
reasonable inferences that could be drawn from that evidence,
from which one could reasonably conclude that both of these
representations were false and known by the defendants to be
false when made.
The disclosure statement reflects that there had been
no “settling, flooding, drainage, grading or soil problems.” The
plaintiffs’ expert testified to a number of problems falling
within these areas.
The trial court found that many of the problems
testified to by the plaintiffs’ expert could “be traced to the
fact that an unlicensed contractor or builder...construct[ed]
this home [and that] the home never passed a final building
inspection.” If the defendants had made a full and complete
19
disclosure, it is logical to assume--and the plaintiffs so
testified--that the plaintiffs would not have purchased the
residence and would not have sustained the various damages
clearly shown by the evidence in this case.
The evidence does not preponderate against an award of
damages of $40,403 based on the defendants’ fraudulent
misrepresentations. For this reason, we approve this portion of
the judgment. We can affirm a trial court’s judgment if the
result is correct even though we disagree with the lower court’s
reasoning. Rule 36(a), T.R.A.P. See also Kelly v. Kelly, 679
S.W.2d 458, 460 (Tenn.App. 1984).
As to the trial court’s finding that the plaintiffs are
entitled to recover an additional amount of $4,294 because of
damage done by the defendants to the driveway and front yard at
and about the time the defendants vacated the property, the
defendants in their brief concede their liability for these
damages.
It results that the basic damage award of $44,697 is
affirmed.
VII. Can the Doubling of the Award be
Sustained as Punitive Damages?
The plaintiffs argue that, even if the double damages
award cannot be sustained pursuant to the authority of T.C.A. §
47-18-109(a)(3), it can be upheld as punitive damages. As
20
previously indicated, the plaintiffs sought punitive damages on
their alternative theory of common law fraud.
It is true that the trial court specifically found a
“willful or knowing violation of the Act,” as contemplated in
T.C.A. § 47-18-109(a)(3). While “willful” is not defined in the
Act, “knowing” is. It is defined as
...actual awareness of the falsity or
deception, but actual awareness may be
inferred where objective manifestations
indicate that a reasonable person would have
known or would have had reason to know of the
falsity or deception.
T.C.A. § 47-18-103(6). The plaintiffs argue that this finding
necessarily means that the court found facts that would justify
an award of punitive damages. We do not believe that this is
necessarily true.
In Tennessee, it is clear that punitive damages are
“restrict[ed]...to cases involving only the most egregious of
wrongs.” Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 901 (Tenn.
1992). A court may “award punitive damages only if it finds a
defendant has acted either (1) intentionally, (2) fraudulently,
(3) maliciously, or (4) recklessly.” Id. Such an award is only
appropriate when the necessary conduct has been shown “by clear
and convincing evidence.” Id.
We cannot say that the trial court’s findings under
T.C.A. § 47-18-109(a)(3) satisfy the quality or quantity of proof
21
required under Hodges to sustain an award of punitive damages.
Since there was no evidence of the defendants’ financial
condition, the trial court was not in a position to evaluate this
aspect of the punitive damages inquiry. Under Hodges, generally
speaking, this is one factor that a fact finder should consider
when a request for punitive damages has been made. Id.
Furthermore, the trial court did not indicate whether it found,
by “clear and convincing evidence,” the egregious conduct
required by Hodges. We cannot extrapolate the trial court’s
findings regarding the defendants’ intentional misrepresentations
into the requisite finding of egregious conduct contemplated by
Hodges.
Accordingly, we vacate so much of the trial court’s
judgment as adds additional damages of $40,403 under T.C.A. § 47-
18-109(a)(3). Since the Act does not apply and since we cannot
say that there is a factual predicate for punitive damages, we
cannot sustain this portion of the trial court’s award.
While the trial court did not make findings that would
sustain an award of punitive damages, we recognize that it did
make findings that clearly reflect its determination that the
defendants were guilty of intentional misrepresentations. In
view of this finding and in view of the fact that the parties and
the trial court were understandably focused on the Act, we hold
that it is appropriate to remand this case to the trial court to
hold a hearing to determine whether the plaintiffs are entitled
to punitive damages. We recognize that it was the plaintiffs’
burden as a part of their proof-in-chief to present evidence of
22
the defendants’ financial condition;5 but just as we are not
inclined to penalize the defendants for trying this case as if
the Act applied, we do not believe that the plaintiffs should be
penalized for doing the same thing. We find and hold that
justice requires a remand for a hearing on the issue of punitive
damages. See T.C.A. § 27-3-128.6 In doing so, we express no
opinion as to whether the plaintiffs are entitled to punitive
damages. This determination must be made in the first instance
by the trial court.
VIII. Attorney’s Fees
The trial court’s award of attorney’s fees was based
upon a finding that the defendants violated the Act. Since the
Act is not applicable to this transaction, that award cannot
stand. Such fees are not recoverable as compensatory damages
under any of the plaintiffs’ alternative theories.
IX. Other Issues Raised by Plaintiffs
In view of our decision in this case, we do not find it
necessary to reach the plaintiffs’ issue regarding our stay of
5
The defendants did not seek a bifurcated hearing on punitive damages.
See Hodges, 833 S.W.2d at 901.
6
T.C.A. § 27-3-128 provides as follows:
The court shall also, in all cases, where, in its
opinion, complete justice cannot be had by reason of
some defect in the record, want of proper parties, or
oversight without culpable negligence, remand the
cause to the court below for further proceedings, with
proper directions to effectuate the objects of the
order, and upon such terms as may be deemed right.
23
execution. We find no merit in the plaintiffs’ contention that
this appeal was frivolous.
X. Conclusion
So much of the trial court’s judgment as awards
attorney’s fees of $15,669.95 and double damages under the Act is
hereby vacated. The remainder of the judgment reflecting an
award of $44,697 and taxing costs below is affirmed. This case
is remanded to the trial court for the entry of an order
reflecting this modification of the judgment, and for the holding
of another hearing to determine whether the plaintiffs are
entitled to punitive damages. Exercising our discretion, we tax
the costs on appeal to the appellants and their surety.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_______________________
Herschel P. Franks, J.
_______________________
William H. Inman, Sr.J.
24