Realty Shop, Inc. v. RR Westminster Holding, Inc.

INC., SHOP, The REALTY

Plaintiff/Appellee, HOLDING,

RR WESTMINSTER

INC., Defendant/Appellant, Senash, Co., Inc.; Inc.;

John S. Clark Co., Ins. Clarendon National

Defendants. Tennessee, Appeals

Court of Section, Nashville.

Middle at

April 1999.

Certiorari Denied Oct. 1999.

Rehearing Denied June Branham, Capparella, Donald

John Cave, Nashville, Bryan Day, Branham & Missouri, Walsh, Louis, C. St. Thomas Holding, Inc. RR Westminster OPINION KOCH, Jr., Judge. WILLIAM C. a problem-plagued involves appeal This Nashville development commercial the Thompson Station. To shield called financial developer’s from the project a cor- agreed the problems, principals company holding the poration owned the own that owned the contractor would the construction and project during pur- have an developer option upon completion that corporation chase complet- project the the work. After overruns, de- cost the ed with substantial its veloper attempted to exercise overruns into consider- taking without the holding company The declined ation. developer and corporation the sell eventually project group to a sold the filed suit developer foreign investors. Coun- Chancery Court Davidson the ty, alleging holding company that the project corporation formed own the the option agreement and had breached the holding compa- the that the contractor and provided ny’s parent corporation that had financing procured construction court, sitting trial with- the breach. The $1,089,- jury, developer out awarded prejudg- damages interest and dismissed the claims ment against the contractor holding company Both lender.1 developer appealed. affirm have We developer’s procure- the dismissal of claims; ment of breach contract however, against modify judgment Dunn, corporation Cashion, holding company L. Carol R. Ma- Gregory Smith, nier, Herod, to own the Hollabaugh & Nash- formed during conduct the course ville, Shop, parties, Inc. granted corporation formed to relief court also trial awarded other court also judgment against the devel- corporation own that owned payments it collected and oper for lease has during not at is- construction. This relief is judgment portion paid parties have over. appeal because the sue on appealed. The trial has not been compromised and settled them. construction, right waived their to rely apparent potential interest of anchor requirements tenants in. the location. The site was at in both the construction contract and the steep base rock slope and was option agreement. occupied at the time a few rental hous-

es, businesses, some small automo- junkyard. I. bile op- Street obtained purchase tions to property with the Street, Ed H. Jr. is a real estate devel- $10,300,000 idea to develop a shopping cen- oper headquartered in City, Johnson Ten- ter called Thompson Station containing nessee who concentrates on develop- Center, Lowe’s Hardware a Food Lion ment and construction of shopping centers. store, grocery and a drug Phar-Mor store. He is a principal of a partnership called original His begin intention was to con- Ed Company engages devel- struction in the summer of 1992 and to opment construction, and and he is also complete project early in president (“The Realty Shop, Inc. Realty Shop”), corporation engaged a only obtaining options After purchase in real estate development.2 The Realty property in April Mr. began Street Shop’s corporate charter was issued in negotiating leases prospective with the revoked in and in reinstated engineer tenants. He retained an pre- December 1991. pare preliminary plans site and to assist having with property

In He Mr. rezoned. Street undertook to devel- also retained an adapt architect op two shopping projects center each of tenants’ prototypical plans which to the site. As included a Lowe’s Hardware Center. early as March Mr. began One in Street was located City Johnson and the discussing the construction of project in other Nashville. City pro- The Johnson contractors, with general several ject including ended up placing great financial Company, (“Clark”), John S. Clark Inc. strain on Mr. Street’s business. The con- large general North Carolina contractor struction lender project, foreclosed on the reputation with a national constructing for and The Shop eventually filed for space.3 retail In April Mr. bankruptcy Street protection in the Eastern Dis- began to push for a quick decision trict of bankruptcy Tennessee. The pro- requested and proposal that included not ceeding was later dismissed in March 1992 only the construction project of the but ground that it had brought in also the construction result, financing. faith. bad As a Mr. Street became exposed approximately in per- project elements of the continued to liability sonal and was sued more than ten coalesce between September June and times for bad debts 1993. Mr. Street’s 1992. Mr. permanent Street obtained a financial reversals stemming from the loan commitment from Life Insurance City project Johnson caused the Nashville Company Georgia and also found a project great significance to assume for investors, group of German who had him. formed a partnership limited called Ten- initially (“Tennessee Fund, Street became Equity interested Eq- nessee L.P. Fund”) the 21-acre site on Nolensville Road in uity and who were interested Nashville high because of the traffic vol- purchasing completed project. July Road, ume on Nolensville population Lion, he finalized a lease with Food density in the vicinity project, of the in September and and 1992 he obtained a lease 2. The ego, is Mr. Street’s alter already 3. Clark had constructed than more though even family Mr. Street's wife and a twenty Food Lion stores and ten Lowe's corporation corporate own all of the stock. stores. disputed have never Mr. Street's power Realty Shop. to bind The Accordingly, he only no two tenants. These leases contained from Lowe’s. development from com- the size of reduced deadlines commencement acres, he re- and twenty-one to fifteen pletion major phases of construction $10,300,000to ap- from right project to cancel duced gave and the tenants the $6,500,000. in- proximately deadlines were not met. the leases Phar-Mor’s withdrawal expected formed Clark of Both Lowe’s Food Lion requested proposal com- would construction 15,1992, revised based mence no later than December pour- required Food Lion’s also lease in- September Mr. Venable On begin by ing footers for the foundation to accept Clark would formed Mr. 1,199B. March portion construction $4,430,065 the risks were too pro- but representatives Clark’s visited great accept responsibili- total Clark to posed project June 1992 discuss Clark, financing company, ty its parent roles that (“RR costs, for project, including the indirect Holding, Inc. West- Westminster minster”), $6,500,000. With reference to Phar-Mor’s parent owner of its stated, withdrawal, “Certainly company, National Insurance Venable Clarendon (“Clarendon”), unexpected the Phar Mor disaster was Company play you with a visit, but it still leaves development. Following Monty unfortunate n Venable, although perhaps a secretary-treasurer, project run of K. Clark’s home two grand “must a slam.” After another informed Mr. Street that Clark not Mr. Street and Mr. package negotiations, to a that is fair weeks careful structure Sep- a Certainly signed agreement letter parties. and reasonable to both Venable in Mr. office looking compensa- are more tember Venable’s to receive taking Airy, risk North Carolina. greater tion since we are and Mount providing substantial additional services to agreed In the agreement, letter it just other than construction but still and construction provide the “construction must be fair reasonable.” In order for maximum financing”5 “guaranteed a to in preparing proposal, assist Clark its $6,649,105 plus an allowance of price” provided Mr. Mr. with a Street Venable contingen- for indirect costs map supplied by current topological the from To insulate the Mr. project cies. owners, prototype building property the problems, financial the growing Street’s Lowe’s, plans provided by Food Lion and parties corporation form a new agreed to plan. plan and a The called for site site development during that would own the pre-split construction of a rock wall the would act as phase and the construction property steep a on the side of the with of the interim construction the borrower slope.4 rock convey agreed to his Street funds. Mr. corpora- to the new

The suffered several setbacks interests that he following agreement tion in for principal Clark’s visit. The set- return it project when was buy could back the back was Phar-Mor’s decision to withdraw also re- The letter replacement completed. the a project. from Without (1) to furnish a tenant, quired corporation new required Mr. was to contin- Street orig- Clark that engineer originally Mr. Street never informed 4. The retained plan a prepare plan the site recommended con- to inal site called retaining prevent slope structing a wall to pre-split wall later retaining wall. rock collapsing. discharged from After Mr. Street many problems en- proved to be one engineer following dispute, a fee the sec- this during construction. countered engineer plan calling prepared a for ond site (cutting through the pre-split a rock wall rock that Clarendon understood leaving angle rock at a near vertical face financing. provide the construction considerably exposed). This alternative retaining expensive building a wall. less than light $36,000, traffic at cost to dynamic not exceed chang- costs and ever (2) (3) permanent financing, architectural ing project.” Elaborating Sep- on their at engineering not services cost tember agreement, 1992 letter (4) $70,000, exceed an approved site devel- Venable also informed Mr. Street in a fax opment plan ready building permit for is- 20,1992 dated November suance on or before October Thompson development Station in- (5) purchase a contract the property cluding outparcel will be owned $1,400,000. understood that corporation. a new [sic] The stock of the new corporation would with comply corporation will be owned our assigned these conditions when Mr. Street parent company wholly-owned or their engineer his contracts subsidiary. You will have the architect, permanent his loan commitment acquire corporation at stock from Life Company Georgia, Insurance pre-determined price period set options purchase and his property. completion. time after In the event that provide Mr. Street could not Clark with stock, you purchase obviously do completed plan completed or site improvements then the and its plans for the Lowe’s or Food Lion stores property par- would become the of our they signed when letter agreement. ent or its still company assigns. We will In September, late Clark reminded Mr. agree pay developer’s fee over the Street that need final work- approved “we life of construction. ing drawings your to maintain scheduled pre- responded Street that he was your project.” October, dates pared proceed with the contract and engineer employed by Mr. provided Clark with a plan reflecting revised site must [w]e somehow start break Phar-Mor’s withdrawal ground by 1992. Lowe’s December However, plans the final for the two stores very upset although is me have we were still not the forthcoming because ten- delays not had over the which control yet design ants had not finalized the has caused. You know how it Lowe’s spaces. goes, develop- it doesn’t matter it is the early In November Mr. Street fault. Let’s to- work er’s/contractor’s to urged begin Clark work because gether get hard and this started. is extremely upset “Lowe’s with me that pre- He stated that he also assumed “the given Nashville has not I started. have purchase determined for the us to them a date of as the December agreed price stock would the [sic] ground outside date Mr. breaking.” for your for turn key construction.” Street also assured Lion that Food con- begin by- struction would December accomplish portion agree- To the despite the lack final plans and calling ment the creation of a new though yet even had not the he exercised development during corporation to the own purchase to property. the incorpo- phase, the (“SENASH”).6 November, SENASH, All in- rated Inc. Later Venable already outstanding formed Street that there was stock was SENASH’s stemming shortfall from the 'RR On December owned Westminster. executed a “[i]t additional site work costs is and Clark going get you agree- tó be form impossible binding to standard AGC construction fully identify commitment until we all of ment in which to agreed Clark construct acronym. name was an project; "SENASH” an son and the “NASH” was Station Nashville, "S" The name; was the first letter Mr. Street's last project’s loca- abbreviation of the Epstein the "E" stood for Adam who tion. working Thomp- with Mr. Street on the They prevented also from $4,669,105.7 in- were property. The work project for commencing grading operations full-scale buildings conforming two cluded construction, contained sever- specifications, property tenant’s road still construction, landscaping. lot an parking houses and automobile occupied al scope addition, from the Specifically engi- excluded Mr. Street’s junkyard. In (1) plan were the demolition and removal work site provided had still not final neer site, (2) existing structures and Food plans for the Lowe’s clean-up relating to the removal and not finalized. Lion stores had been (3) site, patch- junkyard automobile stalled between project remained repair pre-split rock ing required February 1993. Mr. December 1992 occurred in the rock irregularity walls approved final was unable obtain (4) seams, additional costs above stan- Lion, Food even plans from Lowe’s and prototype dard Lowe’s Food Lion promise he Clark though continued to (5) design buildings, and coordination. immediately forthcoming. plans were provided The contract also that “Owner’s to Lowe’s that point, complained At one he (Ed Street) H. to coordi- representative my “I neck out start really have stuck design. nate and furnish all John S. Clark plans” and insisted that Nashville without Company, pay design Inc. to out of delay providing plans “has dras- Lowe’s stated allowance.” projected timing our I tically changed addition, obligated In the contract SEN- you appreciate and understand hope can responsible to be ASH for increases going through trying to meet what are delays construction costs due to not caused time frame.” required by Clark for changes by the lack of problems caused building equitable codes and make ad- lack of plans were exacerbated justments in the delays contract By progress preparation on the site work. responsi- work that were not Clark’s early February the site still bility. agreed pay SENASH also tenants, buildings, cleared cover additional 7.5% to main office junk- automobile or the debris profit. provid- overhead and The contract yard. The excavation of area where ed that Food Lion store would be located had expedite project, order to stopped though March also even necessary may be Contractor the beginning pour deadline for to in proceed changes the Work based was fast footings the store’s foundation a the on verbal authorization from own- point It was this that the approaching. at representative. or owner As soon as er scope work and pace of the site the practicable, notify the will Contractor erupted the work into the first cost of site in cost of writing the Owner the major a series of of what would become change in the Work and the additional relating the to the disputes among parties time, any, necessary to complete said delays and the addi- responsibility change in the Work. by Broth- being tional costs incurred Jones (“Jones Inc., Bros., Clark and Jones preparation the site work. ers for Brothers”) began on De- work site delays, construction Despite 1992 in order to fulfill Mr. the cember February that told in he Street’s commitment to Lowe’s Food Street Clark the They renegotiate to construction required Lion. were to obtain the desired changes in of permission budget light the site property of the current owners changes plan. He asserted that these because neither Mr. Street nor SENASH profit in result in additional purchase had the to the would exercised president, contract on behalf of on behalf executed' the Mr. Venable executed contract SENASH, Hennings, B. Clark’s Clark. of Joe eventually clean, get to but would increase to clearly site which is not of site of cost work Phase II of responsibility Compa- John S. Clark project. Accordingly, proposed ny nor Jones Brothers.” [sic] parties understanding “have an February Clark also included in its which would be fair and equitable to both of letter list four construction activi- of us going closing before table.” ties and seven construction documents re- pro- Clark was unenthusiastic about this by quiring immediate action Mr. Street. posal. It had informed Mr. Street No- The letter concluded: “This letter is not to vember that it hoped to increase its any create feelings adversarial between profits project by on performing the Clark, you, Brothers, just to Jones and/or budgeted construction less than it had get everyone together, working with the give in order to it “more of ‘cushion’for facts, understanding same get taking.” the increased risk that we are project moving along properly.” on February Street visited site fax, Upon receiving this Mr. Street sent response 1993 in to Clark’s continued asking his architect a fax for three of the concern progress work. about requested documents Thereafter, he sent Clark a fax stating stating: Clark and “Please me. This help preparation site work not project is really out of hand and getting delays removing been slowed being it’s close canceled Clark and all trash from the He site. also insisted that delays. very/ involved because of is Jones Brothers was not entitled to very now. He help!” serious Please sent extra compensation that Jones Broth- fax engineer requesting similar to his up “holding progress ers was more than four again stating documents anything.” prompted This fax a heated entire “[t]he is serious trouble response stating, Jones Brothers for Food Lion and deadlines part: coming approval enough. fast Up I point, spirit until this felt the up. Please/please get matters cleared cooperation all between involved all in We are if this falls trouble very had been I good. cannot under- out of help bed. Please FAST!” why Mr. stand Street has chosen this February On Clark submitted position

time to take an adversarial attempt place any I first ten fault on us. adjusting agree

believe “informed” the amount of the construction have attempted make the changes contract based on the work.8 progress within the allotted time. These orders described addi- tional performed the other basis responded February Clark also for adjusting the construc- amount 1993, that did “not want to continue with They tion contract. also stated the calls, writing campaign, letter conference adjustment previous amount of the and the expedite and continuous site meetings of revised total amount the construc- of opera- the commencement sitework Each sent a clearing contract. time Clark though tions.” Even the was site SENASH, part change provided order it also not of the work that had con- to Clark do, Mr. a copy. tracted to informed Mr. Street with Mr. Clark Street Street schedule, of of that to the it aware the work included in each meet construction copies “no of change choice but to authorize Jones these orders and received Brothers, necessary Inc. to the approximately do whatever is most of them at same change pay accepted 8. The con- to first increased the Clark these fees. SENASH $8,084 represented 17, struction contract order on March 1993. Mr. payments the Clark had made for local fees acquiesced was aware of and in Clark Street delay permit." in and bonds order “to not incurring expenses. obligate The contract not did price of these that the base original provided SENASH received time $6,489,105 and defined change order. shares would circumstances the base under which job Shortly February after the or de- be either increased Clark, meeting, ap- Mr. with Street’s site an to in- requiring creased. In addition Inc. to proval, Management, hired Waste for the actual cost in the base crease crush and re- up facility set on site to in the indirect items identified of all the and other move the wrecked automobiles bud- portion project of the cost allowance requested also Jones Brothers debris. base provided get, agreement to $25,660 performed additional a result of be increased as price would a result of these help clear the site.9 As efforts, begin pouring was able to Project during any to changes made to Lion’s March concrete meet Food that add period the construction not the site had though 1993 deadline even scope Project over that contem- of were completely cleared and there Price ... as plated pursuant to the Base building plans. final still no changes and to extent that such are Clark, Street, March Mr. On in written identified SENASH, Westminster, group RR and a agreed and which are to and therefor neighboring property of owners held signed by Parties. both closing regarding September Shop giving Realty In to The addition agreement letter Clark and Mr. between or the option purchase to either SENASH relating Street and other matters to gave or agreement project, project. Thompson Station On behalf Shop Realty The the “sole and exclusive Realty Shop, assigned The the Pro- right to Purchaser for procure project his with the SENASH contract RR West- ject” on SENASH and behalf architect, project his contract en- minster, it defined Mr. com- Street’s gineer, agreements with Food lease pensation if the sold before The Lowe’s, permanent com- Lion loan Realty Shop option pur- exercised its from Life Company mitment Insurance project. Fi- chase either SENASH the Georgia, option purchase and the agreement standard nally, the contained Realty Shop 15.67-acre site. The provisions requiring changes option and SENASH also executed an agreement and waivers Realty agreement permitted The writing. agreement’s provisions be Shop purchase 0.578 acres of the 15.67 $10,000.10 acre tract for SENASH, Realty Finally, Shop, The agree- a “development and Clark executed Mr. Street and Westminster also continuing relating to Mr. Street’s ment” agreement an option executed drafted compensation. and his role lawyers pivotal Street’s —one referred to agreements litigation. agree- in this “Developer.” exchange In for a as the gave pur- ment Mr. Street an $100,000, “development fee” fol- chase all the shares of SENASH Shop agreed It lowing completion Clark sent 10. Later, germane to on March another Change requesting 2 to present controversy, Order No. the own- SENASH and $45,607 contract to cover increase adjoining parcel into an ers of an entered request addi- Brothers’ Jones "agreement negative covenants” in which $16,765 to preparation site work and tional agreed neighboring property owners the pay Management Waste for its work on-site. permit they property to be would copy change of this Mr. received competing with Lowe’s used business accepted change this order. SENASH during of the terms the Lowe’s Food Lion 29, 1993. Mr. Street authorized on March leases. Food Lion February writing in March this work in 1993. be responsible monitoring for performing the re- as requested other duties quirements relating to the writing by effectiveness and Clark. re- of the leases and shall work, undertake such turn for this Mr. Street was to re- responsibilities additional duties and as ceive a development and, fee Contractor [Clark] Senash shall and/or more importantly, the difference between reasonably request writing in further- adjusted the costs construction and the net ance of the of development Property. proceeds from completed the sale project. Mr. Accordingly, Street had a development provided also contractual and financial in seeing that both interest and Mr. Street SENASH, to it that Clark, was indemnify constructed at Clarendon for expenses possible costs or lowest aris- cost. Street’s con- ing from agreements contracts or duct between relating January March Thompson Station question entered leaves little room to this prior into development the date conclusion. agreement. Delays with final plan both the site The creation of SENASH to insulate the approved building plans continued to project from Mr. Street’s financial difficul- hamper progress of the construction ties ambiguity created concerning some through March June 1993.11 The parties’ roles for the remainder of the grading stopped work in mid-March due to following Within a week a lack plans the sewer and storm March closing, Mr. Street’s mort- drains and the lack materials for gage broker explained Life Insurance split-rock wall. informed Clark Company Georgia that The Shop that “we are still down more or shut less “developer project” and that productivity” sitework and reminded overseeing its “role includes the contrac- him that presence “[o]ur Nashville is tor, procurement financing and all other extremely just costly to maintain to coordi- necessary delivery items design nate approvals, which I under- completed project.” 19,1993 January stand in our [sic] meeting documents substantiate the you responsible would be for.” Several mortgage broker’s characterization of Mr. later, weeks Clark learned additional Street’s role. play Mr. Street continued to would be incurred costs be- a far simply more essential role than plans cause of omissions necessitat- spectator.

interested He was the “owner’s ing the relocation of both Lowe’s and representative” “developer” and the even the Food Lion stores.12 though authority he lacked bind time, this During

SENASH without it became evident that prior authoriza- tion. there responsible He was would be additional costs for solely negoti- new ating completed existing the sale of the work or for project, corrections requirements “for monitoring plans. necessitated relating the revisions leases”, When effectiveness of and for Mr. Street asserted that he would provided plans 11. On March 12. The Lion SEN- for the Food store violated they the fire Change ASH codes because omitted a fire door and Mr. Street with Order No. 3 and because the store was too close to the decreasing the construction contract property line. The location Lowe’s $114,000 by deleting the allowance for the city store interfered with a water main. Mov- light, traffic the fees architect and ing the location of the Lowe's store was esti- engineer, and the I environmental Phase al- $49,845; moving mated to cost while accepted lowance. SENASH this or- Food Lion store five feet wasted the concrete der on March Street never footings already poured that had in or- questioned order because it bene- der to meet Food March 1993 dead- Lion’s fitted him. line.

591 me, architect and costs, suit damage against wrote not of these Clark bear 26,1993 engineer the work has April stating him on acceptable.” Mr. in a time frame done complete a going we are to have do architect, saying: also exhorted Street project this analysis changes on dirty on finish- get all and “We must down resulting sit down and discuss those and all be ing up or we shall this scope savings cost from versus [sic] ... Please lets paddle without a creek engineering. and value cannot get on the fast track. We this I it is we imperative think resolve togeth- must all work delay further. We as possible. issues as soon Cer- these 13 er.” delays that have encoun- tainly, the 1, 1993, after Mr. failed hurt all On Street tered in recent weeks have of us June the meet- ready I that he was for costly. get have been want us to indicate and letter, ing April and in the complete requested discuss this together Mr. pointedly I Mr. asked Street proceed. detail and determine how we Venable ready fairly every “intelligently treat he would be you respect want to when and my company suggest- I want to be treated discuss the Nashville fiasco” and at meeting ed 1993 Clark’s fairly in return. a on June Mr. agreed North Carolina office. Street responded April on with the took issue meeting but stating: as fiasco. characterization know, you totally As I you view as hon- later, days dispute a serious arose Three trustworthy, a fair very est and man. concerning Mr. and between Street go- This has been demonstrated our preparation revised Jones Brothers’ site ing everything forward on with the un- dealings parties’ that was to color the costs derstanding we could settle' later in a Believing months. that he was several everyone. fair to way I am concerned obtaining prevented from being Jones and may greedy that some become this figures, Brothers’ cost Mr. Street sent only on shoot us the foot our n stating: project manager, fax to Clark’s many future deals. This concern stems will not work! We must have “This on is confusion what Value messing money.1 our figures you are with Engineering Change and what is -) $300,000( If is works we + My Scope. Engi- observation on Value forget totally robbery. can all it. This is neering that it seems indicate takes just gun.... you use a Now Have Jones gives? but never be)! (we may not want us involved but will striking conciliatory tone While with you siding against us? Why are Jones Clark, pressed Street ar- together.” must work We completed chitect the lack of about in North meetings were held Car- approved plans. April 1993 let- Two ter, costs olina in mid-June 1993 address the stated that he “received a call he meetings, At company who of the site work. these from the insurance is representatives of Jones Broth- They Street [Clarendon]. lender on Nashville grading extremely progress is ers Clark discussed the exca- upset are that the vations, drainage, and the hugh paving, storm threatening and are stopped [sic] Change performed to re- Jones Brothers had 13. Order Nos. work Clark submitted May remaining and Mr. on to SENASH hazardous waste. The move 20,May Change respectively. $6,988 1993 and design services to additional 4No. increased the construction con- Order topographic survey and site complete the $30,036 piping and addi- tract for storm plan. accepted design remedy tional work respec- May May Change slope Lowe’s store. Order behind the tively. Mr. Street authorized contract No. 5 increased the construction April writing in March $19,738, of was for additional which 592

pre-split rock wall. They also considered Due position to the the owner [Mr. Jones request Brothers’ a change taken, order Street] has we have no other for the additional work it was being re- choice but to insist that the pending quired perform and their Change insistence on a Order Request be completed, as guarantee submitted, they paid.14 25, would be no later than June 1993. Clark’s manager Change confirmed the- Order also needs to include 15, parties’ June pertaining discussions direction to where memorandum shared with and how the participants yardage all excess is to be discussing placed each of stockpiled. the issues and conclud- and/or ing with the observation that is every- “[i]t demand, In response to this Clark circulat- goal one’s as well as responsibility to final- ed an internal memorandum to Mr. Street ize promptly amounts stating that “the cannot afford to performance continued project. on this loose [sic] Jones Brothers and remain on Certainly everyone realizes that damages any acceptable time schedule” and that resulting from non-performance would be paving prices Jones Brothers’ were “com- substantial.” petitive.” Mr. Street strenuously disagreed with Following 15, meeting, June Clark’s assessment of per- Jones Brothers’ requested approval July Clark, formance. 1993 fax to Lowe’s and Food Lion to change pav- expressed he his “continued amazement ing specifications. explained He that the grading prices just keep escalating to request was necessitated “tremendous height astronomical with no one seemingly costs project” overruns on this and that he doing anything to make Jones Brothers would not make the request “if we did not ” accountable.... He also asked “[h]ow need desperately to save on costs.” any can of us sit raped back and be like Difficulties between Mr. Street and this.” and added that “I can not and will Jones Brothers erupted again following keep absorbing these costs I which meetings two in North Carolina. Af- have not approved.... money If this was ter Mr. Street’s associate blamed Jones coming from Clark’s account I bank have Brothers being behind doubt, no it would be forcefully handled schedule, president Jones Brothers’s terse- just passed and not nothing off as to be ly informed Clark that concerned dispute about.” The with Jones Brothers came to a head at a heated meet- time, At this I going am on record that ing on July At 1993. the conclusion we will not assume any responsibility for meeting, all agreed ap- delays. It was and still is our belief that prove $205,994 change order for Jones had the site ready been to start on Brothers.15 December and had the civil plans correct, we would have com- Problems up again flared two weeks la- pleted package by site June ter a dispute over Jones Brothers stor- as originally indicated. ing II in top excess soil on Phase accor- agreed Mr. Street later asserted that Clark specific ment. The trial court did not make a at the es meeting June increas- finding factual that Clark $98,000 Mr. Street had option agreement in the base $239,000 agreed cap or the $98,000 capped would be at and that Clark credit. $239,000 agreed also against to a credit light savings base that Clark agreed ap- 15. Mr. Street later that he had realizing was agree- These proved order but testified that he ments were never writing, reduced to only anticipating did so he was were never partici- confirmed the other giving Clark would be him credit pants at meeting. the June meeting. as a result of the June litigation Street's later assertions in this were agree- inconsistent with the existence of this though Brothers’ bid even at their Jones parties’ agreement dance with Street’s 15, higher requested Brothers and Mr. slightly Jones meeting. June accept to the bid.16 informed Clark: authorization advised, di- that if we are Please be completed Lion and Food store was on stop equipment rected to 1993. over to tenant October turned day ... will be removed before site conducting its this store was Even as projects. placed and other is over November, dif- additional grand opening will no power and man equipment This over the ficulties arose between longer be available for this the Lowe’s rock wall behind pre-split fail-

building. brought potential Clark attention wall to Mr. ure of this Street’s Lee, point shutting I’m at the of down concerning how requested instructions and system run its letting legal and Mr. did problem. Street to address It would the owner does appear course. immediately. respond and obligations not want to honor his to “eat” myself these expects you or anticipation of the sale SENASH In I can that Jones you cost assure [sic]. Shop, suggested Clark also to Bros, cost. will not additional absorb this “compiling their parties begin that all the position [Mr. Due to the the owner prepare a they so that could information” expo- possible has taken and the Street] accounting project.” Mr. “final of this Bros., if we yourself to sure Jones informed Mr. of his desire Venable Street received authorization have not during the together, probably down to “sit to your a firm as clear direction from December, in week of order to first full working direction we what should acqui- paid final to be finalize going rehandling is pay and who to Upon re- sition of the SENASH stock.” but to this material have no choice for an ac- ceiving request Mr. Venable’s shut-down de-mobilize. stock, finalize counting to begin to Epstein a instructed receiving copy of Jones Broth- Mr. Street Upon ultimatum, pro- to information. replied compiling Clark Clark’s ers’ Street Epstein copies ject manager fact that furnished Mr. “deeply that he resent[ed]” even change him- first seven orders project manager aligned had Clark’s asked, change orders had though copies He of these self with Jones Brothers. on, routinely does he furnished to Mr. Street as side is who “[w]ho’s [sic] he December gone they were submitted. On work for?? situation has draft Clark’s Mr. Venable sent Mr. Street [sic] ridkulous abusurd [sic].” amount Change No. 8 in the manager responded copy to Mr. Street Order $591,787 covering the increased costs that, great pressure are all “[w]e’re under changes prototype timely manner. in Lowe’s this due to produce design delay having pit plans, upgrades, a waste as of this site Not available por- damages. situa- He noted that substantial writing placed has us all in a crisis later, charges from the de- af- stemmed Approximately two weeks tion.” engineer paving lays of the architect and whom obtaining second bid ter suggest- hired and work, initially recom- Mr. project manager Street Clark’s much how they accept that Mr. Street consider to Mr. ed mended Street material, slope stabilizing behind plus provided and Mr. Street SENASH Lion, breaking up August paving, boulders. Change Orders Nos. 6 and 7 on Food change respectively. approved orders on September SENASH these September September 1993 and The combined amount of these $363,491. amount, $329,782 copies rep- respectively. Mr. received Of object did not performed Jones these orders and additional work resented Brothers, work, including hauling off sur- site them. passed along telephoned during should be closing costs talk with engineer. architect and the attorney representing Life Insurance Company Georgia. 22, 1993, The Realty Shop On December formally notified Westminster that it early January, an attorney represent- exercised its all purchase ing RR The Realty Westminster informed suggested stock of es- Shop’s lawyer that RR Westminster was closing crow December with a prepared subject to close the transaction closing funded January follow on to money two conditions: that the would day, 1994. On the same Mr. sup- Venable remain in escrow unless the plied accounting, Mr. Street with an incor- adjusted agreed on of price the based the 8, porating Change showing Order No. SENASH stock and that the parties reach that adjusted the amount the construc- agreement concerning an the unresolved $5,613,848. was contract issues another involving Lowe’s 23, 1993, On December Mr. Street for- Columbus, in- Indiana. Mr. Venable also response warded a to Mr. detailed Vena- adjusted formed Mr. that Street the base accounting. compli- ble’s final also He price $7,880,- of the SENASH stock was mented Mr. Venable for demonstrating provided 122.31 and him with an itemiza- “character and through- trustworthiness addition, tion of the increased costs. In he added, out” “I and trust that we can enter suggested meeting “to discuss the in- into final negotiations cost on Nash- scope changes.” creased due to costs ville, fair remaining totally equi- both and problems Additional arose in mid-Janu- table to each other in to maintain order ary. The declined city to issue certificates relationship our and keep moving forward occupancy because of the condition of years together for to Mr. come.” Venable slope the the store behind Lowe’s and responded stating on December because of absence property the line “[y]ou that can only rest assured that the required by water fire valves the marshal. thing accomplish want that we to on this Following meeting in North Carolina on to transaction is establish a fair January project manager Clark’s ... Again, value of services delivered called the “long Mr. Street’s attention to making top priority we are closing on liability pre- term and maintenance and you any are available to meet with at split rock wall” and warned that the condi- accounting, time to discuss the final tion of “could also release delay the wall changes.” scope On and/or permanent occupancy permit for both 28, 1993, Mr. December Venable notified Food Lion and Lowes.” Mr. of “math in Change Street errors” Order No. 8 stated that the amount of Following closing the failed on escrow had been reduced from 29, 1993, December Mr. Street became $591,787 $588,987. to convinced that RR Westminster and Clark though Even Mr. Street and Mr. Vena- di- completed intended to sell rectly to Equity ble had been unable to confer establish to Tennessee Fund to adjusted high dry.” an base “leave ... He real- [him] SENASH stock, Realty revenue representatives Shop, expected of The ized that the loss of the Fund, Equity and Life from would him ex- Tennessee Insur- cause Company Georgia hardship ance met on Decem- treme he was financial help us closing counting ber to conduct the escrow on revenue “to stave requested problems.” January in Mr. December off Street’s these financial On 28, 1994, suit in the exercising pur- Shop 1993 letter to filed Representa- County chase the stock. Chancery Court Davidson SENASH, Westminster, Clarendon, Clark, against tives of RR West- attend, require attorneys seeking equitable minster did not but their Clark relief understanding option closing to honor RR Westminster the par- trial until agreement. The court denied escrowed proceeds equitable money grounds relief concern- worked out their differences ties remedy. an adequate would be damages costs. Not increased construction ing the offer, Mr. Street decline the but only did suit, Notwithstanding pending closing by attempted frustrate he Mr. February provided a cloud on the pendens place lis filing a copy Change Or- with a revised closing property. The actual title to the in which amount of der No. 8 $361,586. According amounted costs $430,- change order had been reduced $7,555,- Clark, cost was project’s total early The Real- February, 305.17 In after 273.20 ty action to Shop declined take problems pre-split remediate the with the August The case tried wall, informed rock Venable At the conclu- August through to take immedi- Street that Clark intended trial, requested court the trial sion of steps problems ate to correct findings to submit of proposed extra expected paid Clark to be for this All conclusions of law. fact and

work. of findings their fact proposed submitted 10, February 1994, noti- On Clarendon 5, January of 1996. and conclusions law on Realty Shop and The fied SENASH 1996, 4, court entered an April On the trial they were default of the construction findings of fact adopting the order following day, placed loan. The a Clark by Realty The prepared of law conclusions lien of payment secure except findings and conclu- Shop, those $818,346 the con- balance due under relating to the claims that Clark and sions April contract.18 On af- struction maliciously interfered had with Clarendon correcting problem pre- ter The trial option agreement. court split obtaining rock wall and after judgment a awarded amendments restrictive covenants $1,089,674 in against RR Westminster for neighboring requested by on property $277,866 in compensatory damages lender, RR permanent Westminster interest.21 prejudgment completed Thompson pro- sold the Station $8,035,- ject Equity to Tennessee Fund for II. 000.19 Before the with Tennessee closing Fund, of proper offered Mr. We turn first standards Equity Westminster opportunity participate presented Street the in the issues review $8,425,- accepted Change original 17. SENASH Order sales revised 19. 31, 000, portion No. 8 on March 1994. The amount of this of had been in the form a which $318,251 change following $390,000 was later reduced a note that had become worthless of receipt payments from of by closing. the time of Lion. Lowe’s Food $7,555,273 includes the ten 20. The Change forwarded Order Nos. 9 and by payments well as Lowe’s and orders as 7, on and March 10 to SENASH March 1994 scope changes of Lion for Food 28, respectively. Change No. 9 1994 Order resulting proto- changes $61,- by the construction contract increased plans. typical by performed for remediation work 161 valves, Testing & Engineering, line Goodrich supervisor maintaining of and the cost Realty court awarded The 21. The trial also Change Order site to oversee work. Shop judgment against SENASH for the net by contract 10 increased outpar- proceeds the sale the 0.578-acre $4,350 charges for additional from Goodrich attorney’s fees in- cel and accepted Engineering. Testing & Shop as result of the curred change orders 1994 and on March option agreement. outparcel breach of respectively. 1994 March appeal. are on this awards not at issue These being performed. that this work was aware 596

appeal. (1890); Because this is an appeal McAdams, from a 483 Chapman v. decision made the trial court itself fol- Tenn. at 503. trial,

lowing a bench the now familiar stan- 13(d)’s R.App. Tenn. P. presump 13(d) R.App. dard Tenn. governs P. our tion of correctness requires appellate review. This rule contains different stan- courts to defer to a trial findings court’s dards for reviewing a trial court’s decisions Taylor fact. See v. Corp., Trans Aero regarding questions factual legal ques- (Tenn. S.W.2d App.1995); Ct. tions. Nelms, v. Weaver 750 S.W.2d As for a trial court’s findings of (Tenn. App.1987). Ct. pre Because of the fact, we review the record de novo and sumption, appellate court is bound to presume that the findings of fact are cor findings leave trial court’s of fact undis preponderance rect “unless the of the evi turbed unless the court determines that dence is give otherwise.” We also great the aggregate weight of the evidence dem weight to a trial court’s factual findings finding onstrates that a of fact other than that rest on determinations credibility. the one found the trial court is more Walton, See In re Estate 950 S.W.2d probably Haynes true. See Estate (Tenn.1997). However, if the trial (Tenn. Braden, 835 S.W.2d App. Ct. judge has not specific made a finding of 1992) (holding appellate that an court is particular matter, fact on a we review the respect bound to findings a trial court’s record to where preponder determine it cannot determine pre that the evidence ance of the evidence lies without employ otherwise). Thus, ponderates for the evi ing a presumption of correctness. See preponderate against dence to a trial Russell, 293, Ganzevoort v. 949 S.W.2d 296 fact, finding court’s of support must (Tenn.1997); Ford, Ford v. 952 S.W.2d finding greater another of fact with con (Tenn. 824, 826 App.1996); Ct. Devorak v. vincing effect. Patterson, (Tenn. 815, 907 S.W.2d 818 Ct. App.1995). The presumption of correctness in Reviewing findings of fact under 13(d) Tenn. R.App. applies only P. to find 13(d) Tenn. R.App. requires P. an appel fact, ings of not to conclusions of law. late weigh court to the evidence to deter Accordingly, appellate a courts review trial mine in which party’s weight favor the court’s issues legal resolution of without aggregated evidence falls. See Coles presumption and reach of correctness Wrecker, (Shannon) 341, v. 2 Tenn. Cas. independent own regarding conclusions (1877); Hohenberg 342 Bros. Co. v. Mis Champion these issues. Nutt v. Int’l See R.R., 117, souri Pac. 586 S.W.2d 119 365, (Tenn.1998); Corp., 980 S.W.2d 367 (Tenn. App.1979). Ct. There is a “reason Bennett, 857, Presley v. 860 S.W.2d 859-60 probability” able proposition that a is true (Tenn.1993); Cox, 544, Hicks v. 978 S.W.2d when there is more evidence in its favor (Tenn. 547 App.1998). Ct. than against there is it. Chapman See v. McAdams, 500, (1878); 69 Tenn. 506 2 Appellate courts review trial 339, § McCormick on Evidence at 439 finding legal court’s of fact as a matter (John ed., Strong W. 4th Practitioner’s finding one circumstance. When a of fact ed.1992) (stating that “the undisputed existence of a is that can based on evidence contested fact probable conclusion, is more than its reasonably support only one nonexistence”). Thus, prevailing party appeal review that on finding without 13(d)’s is the one in whose evidentiary favor the R.App. presumption Tenn. P. tips, scale no slightly. matter how County See correctness. Hamblen Educ. See Co., Bryan Educ., v. Aetna Ins. 174 Tenn. County Ass’n v. Hamblen Bd. Life 602, 611, 85, (1939); (Tenn. 428, 130 S.W.2d 88 McBee App.1994); 892 S.W.2d 431 Ct. Bowman, v. 89 Tenn. 14 S.W. Tennessee Farmers Mut. Ins. Co. v. Amer-

597 (Tenn. Co., 933, 1, App.1998). Ct. Ins. 840 S.W.2d 5-6 ican Mut. Liab. S.W.2d (Tenn. written contract App.1992). purpose interpreting 936 Ct. effect give and to

is ascertain III. contracting intentions. See Bob parties’ Motors, Regal Chrysler- Pearsall Inc. v. case judgment upon rests 578, Inc., Plymouth, 521 S.W.2d 580 trial conclusion that RR court’s Westmin- (Tenn.1975); Gredig Tennessee Farmers v. option ster the March 1993 breached (Tenn. Co., 912 Ins. Mut. 891 S.W.2d to sell agreement by declining SENASH of written con App.1994). Ct. the case $6,681,530.22 tracts, are reflected in the intentions turn, is, in necessarily premised conclusion Thus, the search contract itself. that RR the conclusion Westminster contracting intent should focus on parties’ increase was not entitled to the base contract, see the four corners of the White in- the SENASH stock reflect the Community Baptist haven Church Hol constructing creased costs of (Tenn.1998); loway, 973 S.W.2d court, According to the trial RR Westmin- Hall v. 767 S.W.2d 657-58 Jeffers, these adjustments ster not entitled to was (Tenn. Ct. and the circum App.1988), it failed to obtain written stances which the contract made. option required agree- orders as Leasing Penske Co. v. Huddle See Truck ment. ston, (Tenn.1990); S.W.2d The trial court’s conclusion raises two Agency, & Inc. v. Kre Pinson Assocs. Ins. legal and two factual issues. The first (Tenn. al, App. Ct. S.W.2d legal whether the agree- issue is 1990). requires ment all increases in the base sup- stock to be of fraud or In the absence mis ported by An af- orders. take, as courts should construe contracts firmative answer to this issue prompts Rudy written. Frank Heirs Assocs. v. See parties may, second issue—whether (Tenn. Inc., Sholodge, 967 S.W.2d either oral their con- Underwood, App.1997); Whaley v. 922 Ct. duct, right their waive insist on written (Tenn. 110, App.1995). S.W.2d 112 Ct. change orders. An affirmative answer The accord contractual courts should requires issue consideration of ordinary meaning, terms natural and fact, first parties, factual issue—did the Ross, 20, Evco 528 S.W.2d 23 Corp. see v. right waive their to insist written on (Tenn.1975), should construe them in Finally, if change orders. the answer to contract. the context of the entire See yes, factual is first issue then the Moore, 367, v. 373 Wilson 929 S.W.2d how second factual issue is much should (Tenn. Stansell, Rainey v. App.1996); Ct. of the SENASH price base stock be (Tenn. 117, App.1992). 836 119 Ct. S.W.2d adjusted parties’ agreements based The courts also avoid strained con should or conduct. ambiguities structions that create where Enters, Plaza v. none exist. Hillsboro See A. (Tenn. Moon, 45, 860 47-48 Ct. S.W.2d Interpretation of a con written App.1993). law, tract a matter of rather than a is may v. not make a County of fact. See Hamblen The courts matter Morristown, 331, have spoken new who City 656 S.W.2d 335- contract for Sloan, (Tenn.1983); themselves, 197 Petty see v. 36 Standard Fire Ins. v. 355, (1955), Assocs., Inc., 359 O’Donley & 972 Tenn. 277 S.W.2d Chester ($73,913), $6,681,530 purchase price and the is the sum concedes he authorized ($118,- option cost items price agreement total amount of the indirect of the base ($6,489,105), 512). the additional work Mr. Street may not relieve of the contrac- agreed therefor and which are to and obligations tual simply because these obli- signed by both Parties. gations prove later to be burdensome or Plainly, option agreement requires Kirkpatrick, unwise. See Atkins v. 823 that price increases the base of the (Tenn. S.W.2d App.1991). Ct. resulting SENASH stock additions Thus, when upon interpret called a con- the “scope Project” of the must sup- tract, the may par- courts not favor either ported by written orders. ty. Assocs., Heyer-Jordan See & Inc. v. phrase Project” of the “scope is not Jordan, (Tenn. 801 S.W.2d Ct. option agreement. defined On sev- However, App.1990). when a contract con- construction, eral occasions during ambiguous tains vague provisions, questioned interpretation Clark’s provisions will against be construed the term. To the extent that the lack of a party responsible drafting them. See “scope Project” definition of created Hanover Ins. Haney, Co. Tenn. an ambiguity, the burden must be borne 153-54, (1968); 425 S.W.2d 592-93 Shop because the

Burks v. Belz-Wilson Properties, 958 was drafted Mr. Street’s (Tenn. S.W.2d App.1997). Ct. lawyers.

B. case, In the of this phrase context turn to option agreement We “scope project” sensibly most refers legal answer to the first issue— to the “work” as that term is defined price whether the base of the SENASH December 1992 construction contract stock may only by be increased between SENASH and Clark. In the con- change order. The agreement contains struction industry, the term “work” is com- only two increasing mechanisms for the monly understood the construc- to refer to price First, base of the stock. agree being performed by a contractor provides ment the base particular accordance with a of con- set increased, stock may be without written tract documents.23 The December order, by the “aggregate actual 1992 construction contract defined the cost of all items catego set forth under the performed as “all the Work to be as ry of ‘Indirect Cost Allowance’ as shown required by the Documents for Contract Project Second, Budget.” Cost Thompson the construction of Station agreement provides that the base 107,320 Shopping consisting Center may stock be increased a_2, SF Lowe’s Hardware Store and

any changes Project during made to the [unintelligible] Lion SF Food Store.” period addition, the construction that add to the Article 20 of the contract identi- scope of Project the over that contem fied specifically twelve items included with- plated pursuant “work,” to the ... in scope Base Price as the of the 21 Article and to the extent that changes such are identified ex- specifically nineteen items identified in written change scope orders cluded from the of the “work.”24 Among 23. A common definition of term “work” the items Article excluded from (1) demolition, in the construction context is "the construc- scope the removal, were: the "work” required by tion and services Documents, Contract any or other work involved with completed partially whether or houses, (2) removal, existing clean-up oth- or labor, completed, and includes all other mate- automobiles, (3) junk er work associated with rials, equipment, provided and services or to removal of with excess materials associated provided by be the Contractor to fulfill the location, (4) grading patching to off-site obligations. may Contractor's The Work con- required repair pre-split work walls or to rock part ‘Project’.” stitute whole or seams, irregularity if code occurs in rock AIA Doc. A201-1997 General Conditions of (6) compliance upgrades, additional costs Inst, (American the Contract for Construction prototype plans. above Lowe's and Food Lion 1997). of Architects costs caused de- nor increased construction Neither the construction contract plans and agreement lays project’s addresses whether or errors in the option plans other can cause including items that construction for specifications, be costs increase should included or two stores. scope project. from the

excluded agreement example, For neither addresses C. (1) stemming cost unfore- increases is legal issue whether The second site, (2) delays seen in conditions may, option agreement to the (4) (3) site, plans, clearing the defective conduct, waive by agreement either or (5) delays obtaining completed plans, in or agreement’s provision written delays approval building plans. in tenant change to increase or decrease the specifically construction contract While the Again, stock. base of the SENASH provides that the contractor is entitled to must turn to the contract documents adjustment in “equitable the Contract parties’ in the and the roles construction of in delays Price” the work that are “not Thompson project. Station Contractor,” responsibility it The construction contract executed explicit requirement no that this contains designated Mr. SENASH and Clark “equitable adjustment” take of a the form representative.” as the “owner’s Article change written order. provides: 9.5 of the contract separate The terms of contracts project, In expedite order to integral parts of a forming single transac may necessary be Contractor together. considered may be See in proceed changes the Work based Inc., Square, McCall v. Towne 503 S.W.2d from the owner verbal authorization (Tenn.1973); Dattel, 182-83 Stovall representative owner [SENASH] (Tenn. Ct. App.1981). S.W.2d practical, As soon as [Mr. Street]. case, the December con notify Contractor will the Owner writ- all struction contract and contracts ing the cost Work may executed on March con time, any, if and the additional neces- they together integral strued are sary complete said ingredients development and con Work. Thompson struction of the Station According provision, to this Street was The option agreement, light construed perform empowered to authorize Clark contract, requires the construction in the original additional not included work change orders for work not included in the obtaining a contract without first “specific work described inclusions” change order. in Article 20 of the construction contract. “specific construction contract though consists of the exclu- Even work to authorize any empowered sions” in Article as as listed well directly part perform other of one of the additional work Thus, change order, obtaining “specific inclusions” Article 20. without first paragraph desired increase the two Westminster price links by specifically the base of the price base of the SENASH stock the directly change orders any part signed cost of work not of one of SENASH stock to by in and RR Westminister. “specific inclusions” Article addition, of the paragraph option thirteen change had to obtain written order change that or signed Realty Shop. agreement provides “[n]o by The RR Westmin- not, however, shall be required Agreement a modification of this ster was to obtain in “equita- writing to obtain same is change written order an valid unless the by Agreement.” in to this delays signed that adjustment” ble the work sixteen states: Similarly, or responsibility paragraph were not its to recover delay No or omission on the part of work was unnecessary or otherwise incom- either party Rather, hereto in exercising any pensable. the trial court conclud- (1) right operate hereunder shall as a waiv- ed that requirements er of right any right such or other under could not be by waived however, Agreement; (2) this any parties except that, in writing even terms or conditions of if Agreement informal waiver permitted, may writing be waived in any by at time Street’s conduct did not amount to a waiv- party hereto which is entitled to er of the change written require- order benefit thereof. ment. face, their On paragraphs permit The trial court concluded as matter of

modification or any provision waiver of that law neither party option agree- option agreement as long as the waiver ment could change waive the written in writing modification is signed and is requirement in by either words or conduct. party entitled to the benefit of the This decision rested on Tenn.Code Ann. provision being waived. 47-50-112(c) (1995), § interpreted by as Willis, 89-361-11, Barnett v.

The trial court No. specifically found WL (Tenn. 13, 1990), App. Ct. authorized June additional work (Tenn. perm. 5, 1990) app. without obtaining first denied Nov. change written or- signed by (opinion ders parties.25 designated published”). all the “not to be It also 47-50-112(c) $73,913 § Tenn.Code prevents concluded that Ann. of the cost of this additional courts-from giving any effect to waiver should be added to the base that is not in price writing the “contract con- SENASH stock because provision “The tains a Realty Shop was to the effect that no obligated to execute change waiver or provisions order with RR terms or thereof Westminster in ... Thus, shall be valid [that] amount.”26 unless such waiver is the trial Willis, writing.” In court concluded that Barnett v. this court price the base 47-50-112(c) § found that Ann. SENASH stock could be Tenn.Code increased to re- superceded Supreme flect the cost of additional the Tennessee work even holding Court’s though the additional Nicholson Co. v. sup- work was not V.L. Ltd., Inc., ported by Transcon Inv. & Fin. change signed orders (Tenn.1980) S.W.2d Realty Shop RR owner Westminster. could be held liable for the costs of extra Notwithstanding its decision to increase work performed by a contractor even price $73,- SENASH stock when had not executed even the absence of a written written change required by order, change the trial court declined to contract. increase the base the SENASH stock to reflect the cost of other work for why There are reasons the trial three which there was no written change order court should not have relied on Tenn.Code signed by 47-50-112(c) Realty Shop § and West- Ann. Barnett v. Willis. First, minster. The trial court did not base its Barnett v. Willis should have finding decision on a weight work was precedential accorded original included work or that the Supreme Tennessee Court directed Paragraphs 1(A) 7.2 Paragraph and 7.3 of the trial court’s 26. See of the trial court’s con- findings fact state that The allocated clusions of law. The trial court $145,913 signed "work authorizations” for difference between the total of signed additional work and that it would have $73, "work and the 913 in- authorizations” orders for this work had or- crease in the cost of the work and the work, ders been submitted. Portions of this contingency the SENASH stock to the allow- however, among were included the items cov- ance. ered the indirect cost allowance for which change required. no orders were

601 to those analogous In and be- circumstances published27 not be that it should case, have courts of this State publica- court it from cause this withdrew ad- performed have parties who permitted 11, Second, the January 1991. tion on in the ab- to recover even ditional work explicitly not state option agreement does contractually required written of a sence writing to be valid. that waivers must be so, the courts doing order. Third, terms of the even if the theories to several different have relied on writing, waived in only could be com- The most their decisions. support writings at least three the record contains ex- recovery for permitting mon basis that the stated which order is a written tra without equitable” “fair and undertake a conduct on parties, that the adjustment of the construction con- both requirement.28 Other job, waived the option agreement light tract and the by re- have reached similar results courts the increased construction costs. contract” the- lying “implied-in-fact theory,30 the es- ory,29 the oral recission 47-50-112(c) §Ann. has not Tenn.Code quantum meruit theory,31 and the toppel since prominently many cases figured theory.32 years ago. While its enactment sixteen meaning The search for analogized court has the statute to one judicial function. Rose is a See a statute rule, Morgan v. parol see Tidwell evidence (Tenn. Roseman, 27, 29 man v. 890 S.W.2d Inc., 373, Bldg. 376 Sys., 840 S.W.2d Telecomms., 1994); Inc. v. BellSouth (Tenn. App.1992), few other courts Ct. (Tenn. Greer, 663, App. 672 Ct. 972 S.W.2d than have relied on the statute for more statute, 1997). construing a When proposition that Tennessee courts will give to ascertain and to goal court’s is according to enforce written contracts un without purpose effect to the statute’s Assocs., Inc. their terms. See Lawhom & beyond it duly restricting expanding it or Co., 538, F.Supp. v. Gen. Ins. 917 Patriot Advo scope. intended See Consumer its (E.D.Tenn.1996); In 542 In re Rachels Greer, 759, 761 967 S.W.2d cate Div. v. (Bankr. Inc., dus., 797, Co., B.R. 804 (Tenn.1998); 109 Perry Sentry v. Ins. 938 (Tenn.1996); W.D.Tenn.1990). 404, Kultura v. 406 S.W.2d 773730, (Tenn. 00023, at Ct. Supreme 1997 WL *2-3 27. Court’s denial of The Tennessee Dec.17, 1997) (No R.App. P. 11 App. Tenn. application permission appeal was Richards, filed); C.A. No. application Carter v. "the conditioned its recommendation that 116, 209330, (Tenn. App. *4 Ct. WL at 1990 Appeals opinion published.” Court of Dec.21, 1990) (No R.App. applica Tenn. P. 11 commonly disposi- It that this is understood filed). tion signals Supreme the Tennessee Court's reasoning opinion’s dissatisfaction with the Thus, panels’ v. Inv. & despite 29. V.L. Nicholson Co. Transcon but not its result. other See Willis, Ltd., Rodgers v. S.W.2d at 482. reliance on Barnett v. see Fin. 595 Walker, 03A01-9708-CH-00371, 1998 No. 670381, (Tenn. Inc., Sept.30, App. *4 WL at Ct. Morgan Bldg. Sys., 840 Tidwell v. See 1998) (No application R.App. P. Tenn. 11 at 376. S.W.2d filed), case. we decline to follow in this Co., Bag Trunk & 12 31. See Ford v. Whittle 486, (1930); Jackson, 381, Constr. Tenn.App. 491 Hardin Tenn. 28. See Bannon v. 121 Enters., Inc., (1908) Group, Real Estate (recognizing Inc. v. KSI S.W. 506 117 1-9103-CH-00040, WL 1991 may, they No. AO contract that "the (Tenn. App. July Ct. at *11-12 any provision proper, waive made see 1991) (No R.App. application P. 11 either”); Tenn. Co. v. Moore Constr. interest filed). Elec., Dep’t S.W.2d Clarksville (Tenn. 1985); v. App. see abo Hawkins Ct. 02A01-9708-CH-00203, Ellis, Ray Painting Corp. WL Bell No. 32. See Nashville 01A01-9510-CH-00491, Oct.12, 1998) Co., (Tenn. App. No. at *4 Ct. Constr. (Tenn. filed); App. Aug.21, (No Ct. application WL at *4 R.App. P. Tenn. 5, 1997). (Tenn. 1996), May perm. app. denied McKinney, No. 01A01-9701-CV Birdwell v. 602 536, phrase Leasing Corp., writing.”

Southern 923 S.W.2d waiver is “to the (Tenn.1996). Assembly’s signals 539 effect” the General de- triggered cision that the statute could be pur for a statute’s search by provisions incorporate that did not with the of the statute pose begins words language exact the statute. See In re Co., itself. v. Cherokee 704 See Ins. Neff (Pa.1898). Estate, 980, Wiley’s 40 A. 981 Smith, 1, (Tenn.1986); 3 v. S.W.2d Winter Rather, Assembly the General decided (Tenn. 527, App.1995). 914 S.W.2d 538 Ct. provisions having the same import, unambiguous, If the statute the courts is should significance, meaning given only need enforce the statute as written. legal effect. See 5 En- the same Oxford Westmoreland, City See Hawks v. 960 (2d ed.1989). glish Dictionary 79 (Tenn.1997); 10, S.W.2d 16 Carson Creek question the op- becomes whether Resorts, State, Inc. v. 865 S.W.2d Vacation agreement provision contains a suffi- Jackson, 1, (Tenn.1993); 2 v. Jackson 186 § Ann. ciently similar to Tenn.Code 47- (1948). 332, 337, 342, 334 Tenn. 210 S.W.2d 50-112(c) parties that it prevents from The courts must consider the statute as a waiving any provision contractual unless whole, Cauthern, see State v. 967 S.W.2d writing. is in the waiver itself The answer Cohen, 726, (Tenn.1998); v. 735 Cohen 937 no. question this is 823, (Tenn.1996), in doing S.W.2d 827 restricting Instead of waivers of contrac- so, they give must the words in the statute waivers, provisions para- tual to written ordinary meaning. their natural and See graph agreement pro- sixteen 766, Reagan, Davis v. 951 768 S.W.2d only party that the to the vides (Tenn.1997); Community Westland West particu- who is entitled to the benefit of a 281, County, v. 283 Ass’n Knox 948 S.W.2d “may” waive the provision lar contractual (Tenn.1997). writing. Paragraph term or condition also be mindful Courts should only does not valid waivers sixteen restrict existing they a stat law when construe writing that are in and does not to those Bank, N.A., ute. See Still v. First Tenn. provide parties that the cannot waive their (Tenn.1995); 900 284 First S.W.2d Thus, any way. rights contract other Howard, 148 Nat’l Bank Fulton paragraph sixteen of the language (1923). 188, 194, Tenn. 962 S.W. option agreement does not have same They displacing existing should also avoid legal significance language as the Tenn. statutory princi or common-law rules and 47-50-112(c). § The language Code Ann. meaning of ples any plain further than the paragraph sufficiently sixteen is expressly the statute declares or necessari 47-50-112(c) §Ann. similar to Tenn.Code Estates, re ly implies. See In Deskins’ waiving from prevent (1964); Tenn. S.W.2d requirement order Co., Mfg. Briggs Harbison v. Bros. Paint orally byor their option agreement either 209 Tenn. 354 S.W.2d trial Accordingly, court conduct. (1962); v. Ft. Sanders Anesthesia Steele it found that erred as a matter of law when (Tenn. P.C., Group, 897 S.W.2d option agreement paragraph sixteen of App.1994). Ct. 47-50-112(c). § triggered Tenn.Code Ann. 47-50-112(c) requires § Tenn.Code Ann. D. its are little construction because words 47-50-112(c) § It Ann. unambiguous meaning its clear. Even Tenn.Code claiming prevented or waivers con- RR Westminster prohibits oral waivers contract that the waived the written any provision duct of of a written by their words or requirement effect that either “provision that contains a conduct, had two ... RR Westminster provisions terms or no waiver insisting that independent such shall be valid unless other bases [of contract]

603 against this find- preponderates agreed to increase evidence Realty Shop The had contains at least fact. The record ing of the stock. price the base SENASH in Street ac- instances which Mr. 47-50-112(c), three First, §Ann. Tenn.Code writing parties that the knowledged terms, prevent its does not West- own adjust the final amount of the agreed to the in- seeking minster from recover price contract also other using creased construction costs requiring without stock SENASH Second, recognized grounds recovery. for change orders. written by Mr. writings the record contains Street op- of the that amount to written waivers directly intimately Mr. Street was change written order re- agreement’s incep- this from its involved with quirement. completion. According to tion to its documents, only as he served not

contract ALTERNATIVE THEORIES OF RECOVERY “developer” also as the “owner’s but required the ele- The contract representative.” We need not recite detail design” all quan- him “to coordinate and furnish estoppel, ments of claims based on merit, responsible monitoring for implied-in-fact tum or contract.33 and “be requirements relating to the effectiveness largely undisputed support The facts re- responsibility latter of the leases.” The coveries under these theories. Mr. Street to see to it that required Street being per- that extra knew work was construction milestones the Food Lion price disagreed formed. While he met. It is not leases were work, Lowe’s disputed he portions never juncture at that the irrelevant to note fact, necessity of the work. he disputed trial court found that most of the work, “approved” most of the extra al- delays costs arose from or deficiencies he later that he did so though insisted for which Mr. project’s plans believing upon that he would not be called —areas contractually responsible. Mr. Street was pay for the work.34 Mr. has correspondence pro- heated Street’s never work disputed the extra was February ject’s engineer architect and actually performed that the extra work understanding of April 1993 reflect his project. benefitted his role.

Mr. Street’s Written Waivers contains clear evi- record likewise 47-50-112(e) §

If that the Tenn.Code Ann. dence that the understood directly prevented waiving of the SENASH stock was Thompson Station’s final con- change requirement written order without related waiver, factual own corre- a written the first issue is struction costs. Street’s his that he Realty Shop spondence whether The waived in writ belies later assertion acting sort of Good ing prerogative simply to insist on written was as some its closing. after the March 1993 change orders to alter the base of Samaritan knew full well that the increased con- stock. The trial court found He anticipated “RR struction costs would affect his prove Westminster failed to example, on earnings project. For intended to waive on demanded the Mr. Street requirement.” June project, the end of the 33. See V.L.Nicholson Co. v. Transcon Inv. & 34. Toward approval Ltd.., (elements respond requests did not S.W.2d at 482 of an Fin. work covered several items of remedial claim); implied-in-fact contract Nashville 10, including Change Orders Nos. 9 Co., Painting Corp. Ray Bell Constr. pre-split repairs to the rock wall. How- (elements quantum at *4 of a WL ever, never’explicitly Clark that he told claim); Bag merit Ford v. Whittle Trunk & portion disputed neces- Co., (elements Tenn.App. at sary complete the construction claim). estoppel Thompson Station fig- sign change revised cost had asked him to grading subcontractor’s minster work, ures, stating that must have the orders for this and he never assert- “[w]e you messing with our mon- figures responsible are that he was not ed Likewise, July he com- for lack ey.” increased construction cost Instead, plained holding signed that Clark was not orders. properly accountable to its “I grading subcontractor he told Mr. Venable: trust we can enter original negotiations estimates because the additional into these final on Nash- cost ville, going paid by were not to be Clark fair and remaining totally equi- costs both rather Mr. corre- by but him.35 Street’s to each other in order to maintain table spondence throughout keep moving and conduct the en- forward relationship our person are with a to project together years tire consistent for come.” having responsibilities contractual for acknowledging three letters Street’s in timely comple- a financial interest “final parties’ agreement to enter into tion of the negotiations” involving cost the increased costs, including the costs for in- The record contains at least three work, in the extra are written waivers stances which Mr. Street stated writ- § 47-50- purpose of Tenn.Code Ann. ing price that the of the SENASH stock 112(c). Thus, trial court erred as a adjusted would be without written matter of fact and of law when concluded The is a letter Mr. change order. first had no for that RR Westminster basis February wrote to Clark on Street increasing stock price savings because he desired a share of that RR breached Westminster preparation on the site costs. agreement by refusing sell they option that “have proposed to Mr. Venable for stock to The and SENASH understanding which would be fair $6,681,530. equitable going to both of us before closing April The is an table.” second E. responding

1993 letter to Mr. Venable’s request parties that resolve the issues as fol- We summarize our conclusions the in- concerning responsibility lows: pos- as creased construction costs as soon (1) requires the option agreement again acknowledged sible. Mr. Street change orders to in- use of written parties agreed go that the had his letter crease the base of the SEN- “with forward with the construction con- ASH stock due increased in a understanding we could settle later costs for extra work not struction everyone.”

way fair to inclusions” in part “specific the construction con- Article 20 of writing The third is a December tract. responding to Mr. Venable’s 1993 letter (2) not re- option agreement account- does providing earlier letter detailed (1) change orders quire ing of the increased construction costs as “indirect cost allowance” items determining to use “in proposed (2) equitable budget, shown on the paid for the SENASH stock.” be adjustments delays the work included the costs for the accounting (3) contractor, by the eight covered the first not caused extra work costs caused increased construction change orders between Clark SEN- plans delays errors Mr. Street never mentioned ASH. Clark, SENASH, specifications. nor RR West- neither doubt, forcefully and not "I it would be handled Specifically, Mr. Street stated: can not keep absorbing nothing just passed these costs which to be concerned and will off as money approved.... If I have not about.” coming account I have no from Clark’s bank done, disa- (3) they that needed option sixteen of the Paragraph costs would be agreement permitting greed on how the increased option agreement provi- risking to waive the entire apportioned. Instead they sions of the de- disagreement, over their writing trigger does not the restric- complete they cided against informal waivers then, in Mr. they could and as best 47-50-112(e). § Tenn.Code Ann. words, way later in a [up] “settle Street’s (4) triggered everyone.” fair to paragraph Even sixteen 47-50-112(c), §Ann. Tenn.Code spirit cooper- lost the prevent statute does not Clark or in 1994. ation the end of the recovering Westminster causes of disagreements Bitter over the the increased construction costs us- of the delays, the cost the construction than ing recovery theories of other work, responsibility pay- and the extra waiver. fostered an ing for the extra work had (5) triggered if paragraph Even sixteen called relationship. parties All adversarial 47-50-112(c), §Ann. Tenn.Code in began posturing lawyers preponderance of dem- the evidence gain tactical advan- order to some sort of corre- onstrates that Mr. Street’s tage as the situation deteriorated. spondence during the construction that Street became convinced Clark amounted to written waivers of The plotting to RR Westminster were steal Realty Shop’s right using to insist on him; and RR project from while Clark to increase orders believed that Mr. Street was Westminster price the base of the SENASH trying paying to avoid for additional stock. In that he either ordered or authorized. (6) RR Westminster did breach the not environment, surprising it is not this option agreement by agreeing to the “final cost parties completed never sell SENASH stock to The Real- negotiations” equi- in order to arrive at an $6,681,530. ty Shop for increased costs. table allocation conclusions, Based on these we vacate the litigation place of the lengthy This took Realty judgment awarding Shop negotiations. $1,089,674 in compensatory damages and proper have determined that We $277, prejudgment 866 in interest. is to dispute resolution of this hold IV. agreement to their oral to allocate parties Thompson Sta- The deadlines in the Lowe’s and Food the increased costs We, begin project equitable in an manner.36 Lion leases forced the therefore, increased costs construction before the site had been find that project should plans completing cleared and the site and incurred before price prepared ap- option have been reflected building plans Later, also find that plan errors in the site and the SENASH stock. We proved. Realty Shop is entitled to receive an delays obtaining approved building equal of amount to the difference between plans timely completion threatened the Thomp- adjusted purchase price of the the work and caused construction costs to the original son and the base parties agreed increase. While the Station either Accordingly, specifically de- ments for the additional work he had we decline to However, op- which of these breached the rea- approved. cide authorized agreement we to undertake tion this first. Were permit re- soning would RR Westminster to analysis, quite plausible it is that Mr. Thomp- proceeds from the sale of the tain the first Street breached the it is not son Station to which entitled insisting closing on the SENASH stock at option agreement. under the making adjust- original price base without justed in- based on the increased construction plus stock price SENASH ten change costs reflected completing incurred in creased costs approved by SEN- prepared amount be reduced should ($848,772)39 and the additional indi- ASH closing actual costs and the rent by the addition, we find rect costs. to Mr. paid that Food Lion Street closing costs incurred the sale actual paid should have been to SENASH.37 Equity Fund to Tennessee adjusted base We find that $361,586 and that each com- amounted to by Ten- Thompson project paid Station these costs is fair and reason- ponent of $8,035,000.38 Equity Fund was We nessee find that Mr. Finally, able. original also find that base in rent from Food Lion collected ($6,489,105) paid ad- have been to SENASH. stock should be that should Shop to' ie as follows: Accordingly, we calculate the award responsibil- Realty Shop must shoulder computation, on this we award Based complete their ity parties’ for the failure to $177,617 judgment Realty Shop The al- aimed at post-construction negotiations RR If RR West- against Westminster. in construction costs locating the increased already the Food minister has obtained manner. equitable a fair and rent, judgment Lion shall be increased $227,640. Realty also find that The We V. inter- Shop prejudgment is not entitled to § 47-14-123 under Tenn.Code Ann. est dismissing the judgment affirm the We (1995) First, the amount for two reasons. claims interference with contract malicious Realty subject The to rea- Shop due modify We against Clark Clarendon. dispute and was not certain. See the awards by vacating sonable judgment Co., Allstate Ins. Myint $1,089,674 compen- Realty 970 S.W.2d Shop The Mitchell, $277,866 Mitchell v. (Tenn.1998); prejudg- satory damages court, (Tenn.1994). Second, directing the trial interest and The ment S.W.2d $390,000 the note is paid note. Because that Mr. Street 37. The record reflects worthless, purchase price has currently court and that the trial court this rent into to RR Westminster and en- awarded the rent note. by the amount of the been reduced permitting tered RR Westminster an If RR Westminster has withdraw the rent. adjustment to figure includes the final 39.This rent, already not be received the it should Change take into account Order No. 8 to recovery we order herein. deducted from $107,054 payments Lowe's made changes in their stores Food Lion for the agreed Equity originally Fund Tennessee plans. prototypical part of their were not $8,425,000 cash pay the rec- remand, the contents of judgment responsibility to enter a favor of on matter, ord, appel- an initial with the RR as against West- However, must also $227,640 appellee lant. if RR minster for or for court parts of the trial designate additional already received the Westminster has on included the record record to be may trial court Food Lion rent. The parts that other appeal if it determines relief grant party either whatever other light In necessary. are the record opinion may with this consistent 24(a), plain Tenn.R.App.P. requirements equal tax the costs in warranted. We that the appellate presume courts Shop, Inc. and proportions to The rec- appellate them with provided its have Holding, to RR Inc. and Westminster them to address and de- execution, ord that enables surety necessary, for which being appeal. raised on cide the issues may issue. concerning the parties’ decisions LEWIS, Judge, L. BEN H. SAMUEL course, are, of completeness of the record CANTRELL, Judge, concur. appeal. to be raised on driven the issues May RR Westminster’s 1996 statement PETITION OPINION DENYING appeal did not indicate that issues FOR REHEARING trial intended to take issue with the court’s Realty Shop, Inc. has filed a Tenn. However, damages. in its calculation of R.App.P. petition requesting this court filed in this court on November brief May opinion. its reconsider third issue was RR Westminster’s Holding, requested We Westminster in its the Trial Court Erred ‘Whether respond Inc. to have petition portion Damages.” Calculation of its our response. now received Based on issue, relating to this RR West- its brief petition, consideration of the response, asserted the maximum minster court, and the filed in record we find Realty Shop The damages amount of that petition is without merit and could was recover —SENASH’s should be denied. Thompson profit net on the sale Equity to Fund. Station Tennessee I. on RR argument necessarily This rested Realty turn first to Shop’s We The as- assertion that all ten of Westminster’s province sertion we invaded the of the change prop- orders were SENASH-Clark by addressing deciding trier-of-fact er. damage question. Realty Shop The Realty Shop The On December insists that should not have we undertaken appellate moved record supplement damages light to calculate the the ten RR twenty items because Westmin- change orders because the trial court did

. arguments appeal had “advanced on ster question this not address because not referred to their state- which were ” not include in the appel- elected Specifically, ment of The Re- issues.... many late record of the exhibits filed in RR alty Shop pointed out that Westmin- the trial court. that “the trial argued ster had its brief computation damages court erred its

A. per- specific because had their been [sic] The Option Agreement Pro- formance of the Appellate The Tennessee Rules of damages have been appel- Realty Shop’s not the require parties, cedure court, trial court au- substantially the record on reduced.” The late assure “fair, accurate, supplemental rec- filing and com- thorized the appeal contains ord, the contents with re- and this court considered plete transpired account of what original appeal on only of of not record spect to those issues that are bases 24(a) supplemental places the but also the contents appeal.” Tenn.R.App.P. 608 grant courts to May opin- permit appellate preparing its 1999 rules

record long as as relief to the complete ion. and an given have fair notice they Realty have concluded that We dispositive opportunity to be heard on that RR Shop fully apprised was Westmin- issues. only that asserting appeal on ster was long courts have appellate Tennessee’s the theoretical and factual basis judg to render the responsibility had the damage trial court’s award was erroneous court, sitting as the ment that the trial also that the ten SENASH-Clark but trier-of-fact, have rendered. See were valid and that The should change orders 411-12, Carter, Tenn. 219 recovery Perry maximum should v. Realty Shop’s (1949); Toomey Atyoe, $70,693. v. light lengthy por- S.W.2d 373, 381-82, 32 S.W. brief devoted to 95 Tenn. tions of Westminster’s (1895). enter responsibility includes orders and the trial court’s change the ten preponderance damages, ing judgments we find that based calculation of law. unfairly applicable evidence and the Realty Shop prevent- was not County Bd. v. Robertson the factual and See Roberts briefing arguing ed from Educ., (Tenn.Ct.App. change ten 692 S.W.2d legal significance of the 1985). noted, Thus, has Judge as Tomlin appeal. octopus may elect to wrestle with B. remand the case for further rather than in the costly wrestling time-consuming asserts that Shop also v. Bldgs. American Co. the case trial court. See this Court should have remanded Attachments, Inc., DBH 676 S.W.2d trial court we determined that after should, how by concluding (Tenn.Ct.App.1984). We the trial court had erred ever, stay rendering hand when rely our estopped that The 36(a) Tenn.App.P. judgment pursuant requirement on the written Cooper parties. unfair to the See It insists that would be option agreement. (Tenn.Ct. Polos, court, court, than 898 S.W.2d the trial rather (declining grant final relief “accuracy App.1995) have determined the should that the trial court had based on evidence validity appli orders and the excluded). Op cability change orders to the of those the trial court Agreement” declining to render find no basis for We or the issue of “never considered decided parties based judgment a final between validity change accuracy and damage The on the facts in this record. Option Agree to the pursuant orders and appeal, raised on this is question was ment. ...” parties pre- were not a case in which development fair of from a full and 13 and 36 control the vented Tenn.R.App.P. effect of the propriety The review. facts. scope appellate of While proper 13(b) orders had change ten SENASH-Clark ordinarily limits Tenn.R.App.P. parties disputed issue between raised scope review to the issues litigation, themselves, stages of the permits appel- from the earliest it also parties essentially given were parties to issues not raised both late courts consider concerning evidence litigation, reign present free to prevent to needless parties orders pertinent all matters to injury to interests of the prevent contest- The judi- during the trial. prejudice public, prevent addition, validity efficacy Tenn.R.App.P. ed the process. cial ap- 36(a) trial, RR Westminster’s at appellate “grant courts to empowers Realty Shop on notice pellate put to which the brief on the law and facts relief an essential change orders were other- that the proceeding entitled or the party is ” the trial court’s challenge its together, part Taken requires.... wise actually paid its and that Clark Accordingly, perceive project, we damage award. for the work. suppliers Realty resulting subcontractors prejudice Shop no to The grant from our decision to deny the Accordingly, respectfully we under the they relief to which are entitled rehearing. We also tax petition in accordance law and the facts of this case to The rehearing costs incident 36(a). Tenn.R.App.P. execution, if Inc. for Realty Shop, which necessary, may issue. May fact that our 1999 decision directly a partial is made on record stems CANTRELL, JJ., concur. LEWIS

from the tactical decisions of both The pur- Realty Shop and Westminster to complete appeal

sue this with less than a to reverse

record. The cannot wait adequacy question

their field they until

of the record after receive

opinion liking. that is not to their Accord- incom- ingly, we decline find Tennessee, Appellee, STATE requires re- pleteness the record us to mand the case to the trial court for further HODGES, Anthony Appellant. proceedings. Granting that sort of relief Realty profit Shop would enable The Tennessee, Appeals of Court of Criminal strategic from its own decision in contra- at Nashville. 36(a). Tenn.R.App.P. vention of

Dec. II. Appeal for Permission to Application Court Shop Supreme also asserts that we Denied 13, 1999. Sept. have overlooked or material misconstrued mistakenly applied that we facts and have legal

the relevant have principles. We

carefully May opin- reviewed our appeal.

ion as well as the record on complete transcript

record consists of the

of the trial and 168 of the 330 exhibits

filed have during proceeding.1 We

concluded that we have neither overlooked

nor misconstrued the facts in the record appeal. We have also concluded that would not have altered findings and legal

factual conclusions May opinion had the

our remaining

included the 162 exhibits appeal. origi-

record on We adhere to our preponder-

nal decision that the evidence in favor of the conclusion that

ates covered the ten actually necessary, the work was

performed, the work benefitted Really petition that The is correct Shop points out in its doubt 1. The rehearing light that 93 the 162 exhibits not transcript we have read the which sheds to this court dealt with matters submitted substance of the omitted exhibits. pertaining We have no orders.

Case Details

Case Name: Realty Shop, Inc. v. RR Westminster Holding, Inc.

Court Name: Court of Appeals of Tennessee

Date Published: Apr 30, 1999

Citation: 7 S.W.3d 581

Docket Number: 01A01-9609-CH-00418

Court Abbreviation: Tenn. Ct. App.