# FILED

June 4, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENNES SEE

AT NASHVILLE
THE REALTY SHOP, INC., ) ) Plaintiff/Appellee, ) ) VS. ) ) RR WESTMINSTER HOLDING, INC., ) Davidson Chancery ) No. 94-293-I Defendant/Appel

lant, )

) and ) ) Appeal No. JOHN S. CLARK CO., INC.; ) 01A01-9609-CH-00418 SENASH, IN

C.; and ) CLARENDON NATIONAL INS. CO., ) ) Defendants. )



### OPINIO N DENYING PET ITION F OR REHEARING

The Realty Shop,

Inc. has fileda Tenn. R. App. P. 39 petition reque sting this courtto reconsider its Ma y 11, 1999 opinion. We re quested RR Westminster Holding, Inc. torespond to the petition and have now received its response. Based on our consideration of

the petition, the

response, and the

record filed in this

court, we find that the pet

ition is without m

erit and should be denie

d.

I.

We turn first to The R

ealty Shop’s assertion th at we invaded the province of the trier-of-fact

by addressing and

deciding the dam

age question. The R

ealty Shop insists thatwe should not have unde rtaken to calculat

e the damages in light of the ten changeorders because the trial c ourt did n ot address this question and because the parties elected not to include in the appellate re

cord many o

f the exhibitsfiled in

the trial court.

A.-2- The Tennessee Rules of Appellate Proce

dure requ ire t he parties, not the appellate court, to assure th

at the record on appe

a l contains a “fa

ir, accurate,

and complete account of what transpired with respect to those issues that are the bases of appeal.” T enn. R. App. P. 24(a) pl aces the responsibil

ity for the conte

nts of the record, as an initial matter, with th e appellant. Ho w ever, the appelle e must also designate additional parts of t

h e trial court record to be include d in the record on appe al if i t determines th at other parts of the

record are nece ssary. In light of the plain requirements

of Tenn. R. App

. P. 24(a), appel late courts presume that the parties have provided them w

ith an appellate recordthat enables them to address and decide the issues being raise

d on appeal.

The parties’ decisions concer ning the completeness of the record are, of course, driven by the issues to b e rais ed on appeal. RR W estminster’ s May 20, 1996 statement of is sues on appeal did not indicate that it in

tended to take issue w

ith the tria l cour t’s calculation of damages. Ho

wever, in its brie

f filed in this court on November

19, 1996, RR Westminister’s third issue was “W hether the Trial Court Erredin its Calculation of D amages.” In the portion of its brief relating to this issue, RR Westminis ter asserted that t he maximum

amount of dam

ages that The Rea

lty Shop could recover

was $70,693 – SENASH’s net profit on the sale of

the Thompson Station project to

Tennessee Equity

Fund. This argument necessarily rested on RR Westminster’s assertion that all ten of the SENASH-Clark change orders were prope r.

On Decembe

r 31, 1996, The Realty

Shop moved to supple

ment the appell

ate record with twenty items because RR Westmin

ister had “adva

nced arguments

on appeal which were not re

ferred to in their statement of issues . . ..” Specifically , The Realty Shop pointed out that RR Westminister had argued in its brief that“the trial
c ourt erred in its com

putation of dama

ges because had thei

r [sic] been spe

cific performance

of the Opti on Agreement T he Realty Sho p’s damages would h ave been substantially

reduced.” The trial court authorized the filing of the supplemental record, and this court conside red t he conten ts of not only the or iginal record on appeal but also the contents of the supplemen tal record in prepa

ring its May 11, 1999 opinion.

We ha ve conclud ed that The Realty Shop was fully apprised that RR Westminister was asserting on appeal not only that the theo

retical and factu

al basis-3-

for the trial court’ s damage awa rd was erroneous bu

talso that the ten SENASH-Clark change orders were valid and that The Realty S hop’s maxim um recovery

should be $70,693. In light of the le ngthy portio ns of RR Westm inster’s brief d

evoted to the ten change orders and th

e trial court’s calculation of the dam ages, we find that

The Realty Shop was not unfairl

y prevented fr

om briefing or

arguing the factual and legal significance of the

ten change orders on

appeal.

B.

The Realty Shop

also asserts that thi s Court should have re manded the case

to the trial court after we determined that the trial court had er

red by concluding that The Realty Shop was estopped to r ely on the writt

en change order re

quirement in the option agreement.It insists that the tr ial court, rather

than this court, shoul

d have determined

the “accuracy and validity of the chan ge ord ers and the applicab ility of those change orders to the Option Agreement” because the trial cou rt “never consid ered or decided the issue of the accuracy and validity of the change order s pursuant to the Option Agreement . . ..”

Tenn. R. App. P. 13 and 36 control the proper scope o f appella te review. While Tenn. R. App.P. 13(b) ordinari ly limits the

scope of review to the issues raised by the parties them

selves, it also per

mits appellate

courts to consider issues not raised by the parties to prevent need less litiga tion, to prevent inj ury to the interests of the public, or to prevent prejudice to the judicial process. In additi on, Tenn. R. App. P. 36(a) empowers appellate courts to “grant the relief on the law and fact

s to which the pa rtyis entitled or the pro ceeding otherwise

requires . . .. ” Taken together, th es e rules permit the

appellate courts to grant complete relief to the part

ies as long as they have been given fair notic e and an opportunity

to be heard on the dispo sitive issues.

Tennessee’s ap p ellate courts have long had the responsibil ity to render the j udgme ntthat the trial court, s itting as the trier-o f-fact, should have ren dered. See Pe rry v. Carter , 188 Tenn. 409, 411 -12, 219 S.W. 2d 905, 906 (1949); Toomey v . Atyoe , 95 Tenn. 373, 381-82, 32 S.W. 254, 256 (1895). This responsibility includes entering judgments base

d o n the preponderance of t he evidence and the a

pplicable law. See Roberts v. R

obertson County Bd. of

Educ. , 692 S.W.2d 863 , 874 (Tenn. Ct. App. 1985). Thus , as Judge Tomlin has noted, we may elect to wrestle

with the-4-

octopus rather than remand the case for furt

her time-cons

uming and costly

wrestling in the trial court. See America n Bldgs. Co. v. DBH Attachments, Inc. , 676 S.W.2d 558, 562 (Tenn. Ct. A

pp. 1984). We should, however, stay our hand when rende

ring
ajudgment pu

rsuant to Tenn. App. P. 36(a) would be unfair to the parti es. See Cooper v. Polos , 898 S.W.2d 237 , 242 (Tenn. Ct.App. 1995) (declining to gr ant final relief based on evidence that the trial court had excluded).

We findno basis for declining to render a final judgment between the parties based on the facts in

this record. The dam

age question was ra

ised on appeal, and t

his is not a case in which the parties were prevented from a full an

d fair developm

ent of the facts. The propriety and effect of the ten SENASH-Clark change orders had been
adisputed issue between the parties from the ear liest stages of the li

tigation, and both parties were given essenti ally free re

ign t o present evidence concerning all matters pertinent to the change orders

during the

trial. The Rea

lty Shop contested the va

lidity and efficacyof the change orders at trial, and RR W

estminster’ s appellate brief p ut The Realty Shop on notice that the chang e orders were an

essential part of it

s challenge to the trial court’ s damage awa rd. Accordingly , we perceive no prejudice to The Realty

Shop resulting from

our decision to grant the parties the relief to which they are entitled under

the law and the facts of this case in accordance with Tenn. R. App. P. 36(a).

The fact th at ou r May 11 , 1999 decis ion i s made o n a par tial r ecord stems directly from the tact

ical decisions of both

The Realty Shop and RR Westminster

to pursue this app eal with less than a com plete record. T

he parties cannot w

ait to
reverse their field on the question of the adequacy of the reco rd unt il after they receive an opinion that is not t o their liking . Accord ingly, we decline to find t hat the incompleteness

of the record requ

ires us to rema

nd the case to t

he trial co urt for further proceedings. Gr

anting that sort of re

lief would enable T

he Realty Shop t

o profit from its own strategic decision in contravention of Tenn. R. App. P. 36(a).

II.1 The Realty Shop points out in its petition for rehearing that 93 of the 162 ex hibits not

submitted to this court dealt with matters pert aining to the change orders. We have no doubt that The Realty Shop is correct because we have read the transcript which sheds light on the substance of the omitted exhibit

s. -5- The Realty Shop als o asserts that we have overlooked or misconstrued material facts and that we have m istakenl y a pplied the relevant l egal principles. W

e have carefully re

viewed our May

11, 1999 opinion as wel

l as the record on ap

peal. This record consists of the com plete transcript

of the trial and 168 of

the 330 exhibits filed during the pr o ceeding. 1 We have conclude d that we have neithe

r overlooked nor misconstruedthe facts in the r ecord on appeal. We have als o concluded that we would not have altered any of the factual findings and legal conclusions in our May 11, 1999 opinion had the parties included the rem aining 162 exhibits in the recor d on appeal. We adhereto our original decisi on that the evidence p

reponderates in

favor of the conclusion that the work covered by the ten change orders was necessary, that the work was actuall

y perform ed, that the work benef

itted the project,

and that Clark actually paid it

s subcontractors and suppliers for the w ork.

Accordi ngly, we respectfully deny the petition for

rehearing. We also tax the costs incident to this rehe arin g to T he Realty Shop, Inc. for which e

xecution, if necessary, may issue.

_________________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________ SAMUEL L. LEWIS, JUDGE

_________________________________ BEN H. CANTRELL, JUDGE