# FILED May 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ ALFREDO SHAHRDAR, Plaintiff-Appellee, Davidson Circuit No. 94C-255 Vs. C.A. No. 01A01-9710-CV-00553 GLOBAL HOUSING, INC., a nd MOHAMMED SHARIFPOUR, Defendants-Ap

pellants.

________________

___________________________________________________________ _ FROM THE DAVIDSON COUNTY CIRCUIT COU RT THE HONORABLE MARIETTA M. SHIPLEY, JUDGE

Douglas S. Johnston,

Jr.; Barrett, John

ston & Parsley of Na

shville For Appellee Thomas I. Bottorff; Bottorff, Kavin & Cook of Brentwood

For Appellants

AFFIRMED IN PART, REVERSED IN PART AND REMANDED Opinion filed:

W. FRANK CRAWFORD ,

PRESIDING JUDGE, W.S.
CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE
This case involves the alleged breach of an oral employment contract and the inducement of that breach by a

thir d party. Defendants Global Housing, Inc. and Mohammed Sharifpour appeal the order of the trial court granting the plaintiff Alfredo Shahrdar a default judgment and2

also the jury’s award of damages. Plaintiff Alfredo Shahrd ar assigns error to the trial court’s refusal to send the issue of punitive damages t

o the jury, as well a

s the $205, 009 remittitur suggested by the c

ourt. Defendant

Global Housing, In

c. (Global)

owns and operates a Holiday Inn hotel and a Howard Johnson’s hotel in N

ashville, Tennes see. Global is a c orporation headquar tered in Georgia and owned by brothers Javad and Jalal Sharifpour. Plaintiff Alfredo Shahrdar alleges that while living in Re

no, Nevada, he was recruited by defendant Mohammed Sharifpour (Sharifpour), on behalf of Global, to move with his family to Nashville and take over management

of Global’s hotel properties. Mohammed Sharifpour is n ot officially connected

w ith Global, which is owned by his two sons, but it is apparent that he has some involvement with, or at least influence over, the a ctivities of the corporation. The complaint alleges that “plaintiff was to be a pe rmanen t employee, paid a t the rate of $65,0

00 per year, plus

bonus, benefits, lodging, food and transpo rta tion, and was to be p aid his expenses in

moving himself and his family.” In the alternative, the complaint alleges that “plaintiff was hired as a temporary employee as general manager of the two properties and was to be paid at the rate

of $1,800 per week, plus the above stated benefits.” Plaintiff alleges that he moved with his family to Nashville and took over management of one of the hotel pr

operties on July 1, 1 993, but that he was never paid by Glob

al for his services. He received two $2,500 “advance

s” for expenses , but de spite repeated requests and

assurances was never

placed on Global’s payroll. After working for approximately five months withoutpay, plain

tiff was forced to quit on December 8, 1993. The complaint further alleges that “[i]n addition, de

fendants have r

efused to acknow

ledge plaintiff’ s employment at all, causing plaintiff’s reputation within t he travel services community to be damaged, and preventing him from obtaining other employment.” Plaintiff’s suit against Global asserts theories of breach of contract, intentional and/or negligent misrepres ent ation, promissory fraud, and intentional and/or negligent infliction of emotional distress. Plaintiff seeks treble damages from Sharifpour individually for inducement of breach of contract in violation of T.C.A. § 47-50-109. Plaintiff alleges that Sharifpour had in structedBehzad Compani, a nother Global emp

loyee, not to pay pl

aintiff, and that h

e late r3

instructed his sons to deny that plaintiff was ever employed by Global. A substan tial portion of the n early 500 pages i

n the Technical Re

cord chronic

le s plaintiff’s year and a half long battle to receive adequate res ponses t o his discovery re quests. Defendants’ responses to interrogatories and requests for production of documents were slow in coming, gene rally inadequate, and contained what th

e plaintiff descr

ibed as “boilerpl

ate objections,” despite various orders of the court to compel compliance. As a result, plaintiff was forced to file several different motions to compel discovery and for sanctions.Plaintiff moved for partial summary judgment onthe issue of whether plaintiff was an employee of Global for the time period in question. The motion was granted by the trial court based upon t he affidavit of Behzad Compani, a

former emplo

yee of Glob al, and the deposition testimony of Javad Sharifpour in which he admitted that plaintiff had been an employee. On June 30, 1995, approximately s eventeen months after litigation began, p laintiff moved for a default judgment

due to the defend

ants’ failure to comply with discovery orders. The trial court granted plaintiff

a default judgment for breach of contract, intentional misrepresentation and promissory fraud, and set the matter for a jury trial on the issue of damages only. On the day set for the damages hearing, and over four months a

fter entry of the

default judgment,

defendants moved to set aside the default judgment and continue the hearing. Both motions were denied. The jury awarded plaintiff $45,000 in damages. Defendants moved for a new trial asserting (1) that the verdict was contrary to the weight of the evidence, (2) that it was error for

the court to exclu de defend ants’ evidence of telephone and restaurant charges incurred by plaintiff that sho uldbe set off against any award to plaintiff, (3) that the court erred in refusing to set aside the default judgment,

and (4) that the c

ourt erred in instructing the jury that damages were recoverable for intentional misrepresentation. The plaintiff also moved for a new trial asserting, inter alia , (1) that the court erred in ruling that the allegations of the complaint did not support claims of procurement of breach of contract, defamation, and intentional inf liction of emotiona

l distress, (2) the

court erred in

failing to allow evidence of economic losses suffered by the plaintiff after December 8, 1993, and (3) that it was error to ke

ep the issue of pun

iti ve da mages from the jur y. The court gran

ted both motions and a second trial was held on December 3, 1996.4 The jury awarde d dam ages against Global for breach of contract in the amount of $40,403. The jury also assessed damages against bot h Gl obal and Mohammed Sharifpour, jointlyand sever ally, for intentional misrepresentation and promissory fraud in the amount of $270,009. This amount was based on expert testimony presented by pl aintiff for damages incurred for the three year period between trial and plaintiff’s last day of em ploy ment with Global, December 8, 199 3. In addition, the j ury awarded pla intiff treble dam

ages against Sharifp our

for inducement of breach of contract pursuant to T.C.A. § 47-50-109, with Global and Sharifpour jointly

and severally lia

ble for the first $40,403. The total damages award in favor of plaintiff equaled $391,218. Upon defendants’ mot ion for a new trial, the court, acting as thirteenth juror, suggested a

remittitur of $205,009 on the award for misrepresentation and fraud. In making t his sugges tion, the court stated “the award of two hundred seventy thousand nine dollars ($270,009.00) in addition to the other damages is

too speculative and evidences passion and caprice on the part of the jury.” The resulting award for fraud and misreprese n ta tion is $65,000, or one additional year’s salary. The plaintiff accepted, under protest, the court’s suggestion of remittitur. The defendants appeal the judgment of the trial court and present the following issues for review: 1. The trial Courterred in failing to set aside a partial summary

judgmentfinding that Plaintiff was an “employee” of Defendant Global Housing, Inc. 2. The trial Court erred in grantin g and then failing to set aside a Default Judg ment in favor of the Plaintiff and against the Defendants

for ostensibly not responding to Plaintiff’s discovery. 3. The trial Court erred

in sustaining a jury verdict for damages which are contrary to the law and the Court’s charge and exceeded the Benefit of the Bargain Rule. 4. There is no materi al evid ence to support a jury verdict awarding damages against Defendant Mohammed Sharifpour for inducement

of breach of the Plaintiff’s oral employment agreement with Defendant Global Housing, Inc. 5. The trial court

erred in grantin

g Plaintiff discre

tionary costs. The plaintiff ra

ises the following a

dditional issues on a

ppeal: 1

. The court erred in suggesting a remittitur of $205,009 on th e misrepresentati

on claim.5 2. The court erred in failing to send the issue of punitive damages to the jury. 1. PARTIAL SUMMARY JUDGMENT We will address these issues in order, beginning with the grant of p arti al summary judgmentfinding that plaintiff was an employee of Global. A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgmen t bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmov ing party, allow all reasonable inferences in favor of that party, and discard al l countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated: Once it is shown by the moving party that the re is n o genuine

issue of material fact, the nonmoving party must then demonstrate, by affidavits or d iscovery materia

ls, tha t there is a genuine, material fact

dispu te to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine

issue of material

fact for trial. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summaryjudgment is de novo on the record be fore thisCourt. Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997). The parties have been involved in a battle of semantics over the term “employee. ” Plaintiff argues simply that he worked for Global for five months as manager of one of its hotels and that the defendants have wrongly taken the position that he was never

employed there a

t all. In defendants’ brief

to this Court, defendants take issue with what they perceive as contradictory allegations that plaintiff

has made regarding who hired him, for what rate of pay, and whether6

he was an employeeo r independent contractor. However, plaintiff is simply seeking compensation for

his services,

and for damages

that he has incurr

ed due to defenda

nts’ refusal to acknowledge that he ever worked on behalf of Global. There is no issue involved, other than rate of pay, that would require making a distinction between an employeeand an independent contractor. For purposes of ruling on the motion for partial summary judgment, the identity of the particular individual who hired plaintiff , his rate of pay, and whether plaintiff was an “employee” in t he technical sense or merely an independent contractor, are not relevant. If plaintiff can show that there is no genuine issue of materi al fact as to whether he was in fact hired by someone at Global, or onGlobal’s behalf, and as to whether plaintiff actually worked managing one of Global’s hotels or not, then summary judgment is proper. In support of his motion for partial summary judgment, plaintiff presented the testimony of JavadSharifpour, the president of Global, wherein he admitted that plaintiff was working and “running things” at the hote l. Plaintiff also fil

ed the affidavit

of Behzad Comp ani , Global’s f ormer Chief Financial and Administrative Officer, who stated that the plaintiff was hired t o manage one of Global’s hotels. Defendants’ filed a cursory response to plaintiff’s motionwhich stated simply: “Defendants aver t hat there are numerous genuine issues of fact that make disposition of this case by summary judgment improper.” We hold that defendants have not met their burden of produc

ing specific fac

ts in response

to plaintiff’s motion thatwould show that there is a genuine issue of material fact for trial. The grant of partial summary judgment tha t plaintiff was an employee of Global is affirmed. 2. DEFAULT JUDGMENT Defendants

assert that the de

fault judgme

nt wa s improperly granted because: (1) defendants

timely responded to plaintiff’s discovery requests, (2) the discovery sought related to the issue of whether

plaintiff was an employee of Global and that the grant of partial summary judgmenton this issue obviated the need for further discovery, and (3) the motion for default was grantedat a time when def endants were not

represented by

counsel, their at

to rney havin g recently withdrawn. Rule 37.02(C) of the Tennessee Rules of Civil Procedu re provides that a trial court faced wit h a party who fail s to obey an order

to provide discove

ry may render a j udgment b y7

default against the disobedient party. See Yearwood, Johnson, Stanton & Crabtree, Inc. v. Foxland Development Venture , 828 S.W.2d 412 (Tenn. App. 19 91). Although this sa

nction is extreme, it is appropriate “where there has been a clea r re cord of delay or contumacious conduct.” In re Beckman , 78 B.R. 516, 518 (M.D. Tenn. 1987). When a trialcourt exercises its discretion in ren

dering a default

judgment as a sanc

tion, its decision wi

ll be disturbed only upon a finding of abuse of that discretion. Holt v. Webster , 638 S.W.2d 391, 394 (Tenn. App. 1982). Upon review of the extensive recor d, it is apparent th

at the defendan

ts’ conduct in

this

case can be describe

d as uncooperati

ve at best. Many of

the interrogator

ies and requests fo r production of

documents went una

nswered or wer

e responded to wit

h “boilerplate ob

jections” despite court orders to comply with plaintiff’s requests. In fact, the defendants to this day have notverified the ans

wers to interroga

tories that they did

provide. In additi

on, whe n plaintiff traveled to Ma rietta, Georgia to depose the person designated by Global to testify about corporate structure, bank a

ccounts, franchise relations, hiring, firing, etc, the person designated, Ja vad Sharifpour, claimed to know nothing about these matters despite the fact that he i s president of the corporation. Furthermore, when confronted with his deposition testimony from

an unrelated case, Javad Sharifpour wa s forced to a dmit that plaintiff had managed one of Global’s hote ls and tha t he had been instr ucted by his fathe

r Mohammed to deny i

t in this litigation. Defendants

contention that the grant of partial summary judgment on the issue of plaintiff’s e mployment status obv iated the need fo

r the discovery is

also without merit. Def endant s are being sued, inter alia , for intentional misrepresentation and promissory fraud. The requested discovery was necessary for plaintiff to show not only that plaintiff had worked for Global, but also to d

emonstrate

that defendants lured him to Nashville with no intention of paying plaintiff for his services, and that they conspired to deny that he ever worked

for Global at all. Defendants

also contend that p

lainti ff took unfair advantage of the withdrawal of defendants’ counsel by hurriedly filing the motion for default judgment. Deanna Bell, former counsel for

defendants, filed

a motion to withdraw

as counsel of rec

ord on May 12, 1995 b

ecause8

defendants

had “been extre

mely uncooperati

ve in this matter.” The motion was granted by the trial court on May 26, 1995, but no order was ever entered. However,the judge did make a hand written note on her calendar granting the motion and giving defendants thirt y days to obtain new counsel. In any event, the defendants claim that they did not receive notice of the withdrawal of their counsel until June 2, 1995. Plaintiff’s motion for default judgment was filed on June 30, 1995 and served

upon defendants Global and Sharifpour at their designated addresses rather than through counsel because plaintiff apparently assumed that defendants’ counsel had eff ectively withdrawn. At the time plaintiff ’s m otion for default was granted on July 21, 1995, the defendants

claim they were not represented by cou nsel. However, Mohammed Sharifpour testified that Global had full time in-house counsel during that period. Upon careful review of the entire record,

we find that the de

fendants had ample notice of the proceedings and ample opportunity to respond to the orders of the court. We fin

d no abuse of discretion in the trial court’s de cision to grant plaintiff a default judgment. However, “[a] judgmentby default will not authorize a decree in favor of the plaintiff, unless the compl aint

s hows a groun d for relief against the defendant.” Gibson’s Suits in Chan cery , § 143. (6th ed. 1982). The trial court

granted the plaintiff a defa ult judgment on the iss

ues of breach of

contract, intenti ona l misrepresentati on and promissory f

raud. We agree

that the complaint s

upports a claim for relief on these grounds, but find error in the trial court’s ruling “that plaintiff’s damages

are not, as a matter of law, limited to the period of July 1, 1993 - December 8, 1993, and that the plain tiff may prof

fer such evidence, if any, of damages incurred beyond December 8, 1993.” The default

j udgment was prope

rly granted, howe

ver, as explaine

d below in subsecti

on 3B, pla intiff’ s complaint is insufficient to justify imposing liability for damages incurred after December 8, 1993. 3. AWARD OF DAMAGES A. Breach of contract The jury awarded

Plaintiff $40,403 in damages for breach of contract, the breach being the failure of Global to pay Plaintiff for his services and expenses. This figure is the one asserted by Plaintiff’s expert as the amount due Plaintiff and includes amounts representing accrued interest and employer’s social security contributions. The amount of damages to be awarde d9

rests in the sound discretion of the jury, and if approved by the trial court, will not be disturbed

on appeal absent an abuse o f discretion. Ellis v. White Freightliner Corp. , 603 S.W.2d 125 (Tenn. 1980); Sholodge Franchise Sys. v. McKibbon Brothers, Inc. , 919 S.W.2d 36, 42 (Tenn. App. 1995). Although defendants contested the logic behind some of the e

xpert’s calcula

tions, we believe that the amount awarded by the jury is supported by the evidence and is within

the range of reasonableness. We find no abuse of discretion. Accordingly, we affirm the awar

d to Plaintiff of $40,40

3 for breach of

contract. B. Intentional Misre

presentation and Pr

omissory Fraud In addition to breachof contract, Plaintiff was granted a default judgment on the issues of intentional misrepresentation and promissory fraud. The jury awarded Plaintiff $270,009 on these claims, but the trial court suggested a $205,009 remittitur w hich th e Plaintiff accepted under protest. Up to this po

int, both the trial court and this Court have discussed the related concepts of intentional misr

epresentatio

n and promissory fraud as if they were two distinct

ca uses of action available to the Plaintiff. However, it is more correct to think of intentiona l misrepresentation as a necessary element of a

fraud claim, while promissory fraud is a type of fraud perpetrated by means of a false promise of future action. This Court has enumerated the elements require

d to sustain a frau

d action as follows : (1) an intentional misrepresentationwith regard to a ma terial fact, (2) knowledge of the r epresentation[ ’s] falsit

y- -that the representationwas made “ knowingly” or “wi thout belief in its truth,” or “recklessly” without regard to its truth or falsity, (3) that the plaintiff reasonably relied on the misrepresentation and suffered damage, and

(4) that the misrepresentation relates to an existing or past fact,

or, if the claim is

based on promissory fraud, then the misrepre se ntation must “embody a promise of future action without the present intention to carry out the promise.” Stacks v. Saunders , 812 S.W.2d 587, 592 (Tenn. App. 1990) (citations omitted). Plaintiff claims that in addition to payment for the five-month period ending December 8, 1993, he is entitled to be compensated for th e three year period between his last day of employment and the second trial. Plaintiff concedes that he cannot recover for

the three years subsequent

to his departure under a breach of contract theory. Therefore, in orde r to recover

for damages sustained after

December 8, 1993, Plaintiff must show that any damages incurred were proximately

caused by an intentional misrepresentation of an existing or past fact that Plaintiff10

relied upon to his detriment; or that the damages incurred were proximately caused by hi s reliance on a promise of future action that was made without

the present intention of fulfilling that promise. Plaintiff claims that he was unable to g et anothe r job because de fendants represented

to potential employers that he had never worked for Global. Although this denial by Globa l was false, it was not a misrepresentation made to Plaintiff, nor could Plaintiff ha v e detrimentally

relied upon it since it occurred after he left the employ of Glob al . Therefore, Plaintiff can only succeed if he can show that the defendants made a promise regarding actions to be taken after Plai

ntiff’s employmen

t ceased, and tha

t reliance on tha

t promise proximate

ly caused the loss of

wages for the subsequent three years. There is no such evidence in the record,

nor is there even an allegation in the complaint that Plaintiff relied upon a promise made by one of the defendants to

acknowledge his e

mployment with

Global at some time in the future. It may be true that plaintiff’s reputation in the travel industry has suffered because of Global’s refusal to acknowledge pla

intiff’s employme

nt, however, that

denial is no t actionable as fraud. Plaintiff’s allegations most closely resemble

a claim for inter

ference with pr

ospective econo

mic advantage, howe

ver, our Supreme

Court has recently held that there is no such cause of action under Tennessee law. Nelson v. Martin , 958 S.W.2d 643 (Tenn. 1 997). We hold that as a matter of law, Pl aintiff cannot re cover damages f

or the three yea

r period subseque

nt to his departure under theories of breach of contrac t, intentional misrepresentation or promissory fraud. Plaintiff is entitled, however, to recover damages incurred during the period of h is employment

as a result of promissory fraud if he can show that he incurred damages beyond those awarded for b reach of contract. The injured party should be compensated for the actual injuries sustained by placing him in the same p osition he w ould have occupied had the wrongdoer

performed and

the fraud not occured. Blasingame v. American Materials, Inc. , 654 S.W.2d 659, 665 (Tenn. 1983). Whether the theory of recovery is breach of contract, intentional misrepresentation, or promissory fraud, if the damages claimed under each theory overlap, the Plaintiff is only e ntitled to one recovery. Allied Sound, Inc. v. Ne ely , 909 S.W.2d 815, 821 (Tenn. App. 1995). Plaintiff has neither pled nor proven damage s different in kind or amount sufficie

nt to justify an award of

damages beyond what he was awarded for breach of contract. Ther efore, we11

must vacate the trail court’s award of $65,000 in damages (after remittitur) on the claim of misrepresentation and promissory fraud.

4. PROCUREMENT OF BREA CH OF CONTRACT Pl aintiff sued defendant Sharifpour individually for procurement of breach of contrac t pursuant to T.C.A. §

47-50-109 which p

rovides: It is unlawf

u l for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto; a

nd, in every case

where a breach or violation of such contract is so procured, the person so procuring or inducing the same shall be liable in treble the amount of damages resulting from or incident to the breach

of the contract.

The party injured by such breach may bring suit for the breach and for such damages. This section is a codification of the common law tort action and provides for mandatory treble damages if there is a clear showing that the defendant induced the breach. Polk& Sullivan, Inc.

v. United Cities Gas Co. , 783 S.W.2d 538, 542 (Tenn. 1989). In order to recover under the statute, the plaintiff must p rove that: (1) the

re was a legal contract; (2) the wrongdoer was aware of the contract; (3 ) the def endant intended to induce a breach; (4) the defendant acted maliciously; (5) the contract was actually breached; (6) the act complaine d of was the proxim

ate

cause of the breach; and (7) damages resulted from the breach. Id. at 543; Myers v. Pickerin

g Firm, Inc. , 959 S.W.2d 152, 158 (Tenn. App. 1997). Plaintiff was not granted a

default judgment on this issue, however, the jury found that defendant Sharifpour had

induced the breach of plaintiff’s contract with Global. In reviewing

a jury verdict where

the standard of pr

oof required is c

lear and convinc

ing evidence, this

Court must examine the record to determine if there is clear, cogent and convincing evidence to support the findings of the jury. Shell v. La w , 935 S.W.2d 402, 405 (Tenn. App. 1996). Clear and convincing evidence means that the plaintiff

has shown that ther e is no serious or substantial doubtabout the conclusions the plaintiff is attempting to prove. O’Daniel v. Messier , 90 5 S.W.2d 182, 188 (Tenn. App. 1995). For the record, we would like to point out that we have serious doubts about whether Sharifpour

is a proper defendant for

a procurement of breach action. It is abundantly clear that1 Plaintiff’s counsel advised the trial court that since treble damages provided for

in the statute are in lieu of punitive damages, the standard of proof required of plaintiff in a procurement of breach case should be clear and convincing evidence. To the extent that this standard may be in dispute, we hold, in the alternative, that there is not material evidence in the record to support the verdict of the jury. 12 Global is controlled by Sharifpour, and that his sons who are the actual owners and officers of the corporation have no idea what is going on under the

ir noses. Sharifpo

ur is so closely tied

to the operations of

Global as either an agent or “advisor” that he is more akin to a defacto officer than a third party. How

ever, we need n

ot rule on this

question because

careful revie

w of all trial and deposition testimony has revealed no testimony which indicates that Mr. Sharifpour instructed any employee or officer of Global not to pay plaintiff for his servi ce s. Plaintiff testified that when he was not paid at the end of the first payroll cycle he contacted Mr. Compani who stated “Mr. Sharifpour did not instruct me or order me to have you on payroll, and I’d rather have you -- have you on payroll in home office.” A failure to give an order to place plaintiff on the payroll falls far short of an order not to do s

o, and in any event, would not comprise clear and convincing evidence of an inducement to breach the contract . There is ample evidence in the record to indicate that Sharifpour instructed his sons to deny that plaintiff was ever an employee and that he knew this would make it dif ficult for plaintif

f to find other employment. However, these acts occured after the breach complained of and cannot as a matter of law have

induced the brea ch. Ironically, the one person who could corroborate plaintiff’s allegations, Behza d Compani, was never deposed or called as a witness. The affidav it of Mr. Compani file

d in support of plaintiff’s motion for partial s ummary judgment could be read as implying that Sharifpour

had instructed Compani not to place plaintiff on thepayroll, but that a ffidavit was not before the jury. Although we have no doubt that plaint iff was not paid, and that it is likely that Sharifpour, who was calling the shots for Global, never intended to pa y plaintif f, there is not clear and convincing evidence 1 from which a jury could reasonably find that Sharifpour procured the breach of contr

act. Therefor

e, we must

vacate the portionof the trial court’s order awarding treble damages for procurement of breach of contract pursuant to T.C.A. § 47-50-109. 5. DISCRETIONARY COSTS T he trial court awarded plaintiff discretionary costs in the amount of $5,985 .55. Th e13

majority of the $7,619.07 requested by plaintiff went to th e expert econom

ist hired to

testify to plaintiff’s damages. Defen dants a ssert that since pl aintiff is only enti

tled to recover u

npaid wages for the five months he worked for Global, it was unnecessary to hire an expert to make that calculation. The Tennessee Rules of Civil Procedure permit the trial court to aw ard a party discretionary costs that are for “reasonable and necessary court reporter expenses for depositions

or trials, reasonable and necessary expert witness fees for depositions or trials, and guardian ad litem fees.” Tenn. R.

Civ. P. 54.04(2). “[T]ravel expenses are not allowable discretionary costs.” Id. Our Supreme Court has held that recovery of expe rt fee s under the rule is limited to fees incurred for actual deposition or trial testimony. Fees for preparation time are not recoverable. Miles v. Marshall C. Voss Health Care Ctr. , 896 S.W.2d 773 (Tenn. 1995). As the term itself suggests, the decision whet her to award a par

ty discretionary costs rests with the sound discretion of the trial court and wi ll not be disturbed a

bsent an abuse of

discretion. Tenn . R. Civ. P. 54.04(2); Lock v. National Union Fire Ins. Co. , 809 S.W.2d 483 (Tenn. 1991). Plaintiff filed an exhibit detailing costs incurred in this matter totaling $7,591.56. It is unclear why this amountdiffers from the total amount requested in plaintiff’s motion; whythe total amount of expert f

ees incurred is

not included in the exhibit; or how the trial court arrived at the figure awarded. The expert witness fees and expenses detailed in plaintiff’s exhibit B to his motion for discret

ionary costs c

o mprise $4,004.02 of the total $7,591.56 requested. It appears that when the tria

l court awarded

plaintiff $5985.55

it wrongly awarde

d at least a portion of the expert’s f

ees and travel e

xpenses, and per

haps some

other expressly disallowed costs as well. Although the parties dispute the necessity of the expert’s testimony, the testimony was permitted by the trial court and not objected to by the defenda

nts. We hold

that given the nature of this case and the conduct of the defen dants , the trial court properly decided to award discretionary costs. However, t he plaintiff is ent itled to recover

only those costs spe

cifically provided for in Ten n. R. Civ . P. 54.04(2), and we vacate the trial court’s previous award and remandthe case for a determination of the proper discretionary costs in accordance

with the Rule and this opinion. REMITTITUR & PUNITIVE DAMAGES14 Plaintiff assigns error

to the trial court’ s suggestion of rem ittitur and its failu

re to send the issue of punitive damages to the jury. The que stion of the propriety of the trial court’s suggested remittitur is moot be cause we have a

lready held that the p laintiff is not entit led to

recover damages for intentional misrepresentation and promissory fraud beyond his five month period of employment. As for the failure of the trial court to charge the jury regarding punitive damages, that issue is waive d because the pla

intiff failed to ra

ise the issue in a motion for a new trial. T.R.A.P. 3(e). CONCLUSION For the foregoing reasons, the judgment of the trial court is a

ffirmed in part,

reversed in part, and remanded. The judgment of the trial court on the jury award to plaintiff of $40,403 for breach of contract is affirmed. The award of discretionar

y costs is reversed and remanded for recalculationin accordance with this opinion. The award of damages fo r m isrepresentation, promissory fraud, and proc urement o f breac h of contract is reversed. Costs of the appeal are assessed one-half to plaintiff and one-half to defendants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE