# FILED

July 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

CONCRETE SPACES, INC., ) FAUX FUR, INC., ) PAULETTE

DALTON, a

nd ) STUART DALTON, ) ) Davidson Chancery Plaintiffs/Appell

ees, ) 94-993-I

) VS. ) Appeal No. ) 01A01-9607-CH-00288 HENRY SEN

DER, Individuall

y, ) DARREN LIFF and ZACKARY L IFF, ) HENRY SENDER, EUG ENE I. SACKS ) and wife RUTH SACKS, d/b/a ) LIFF, SEND

ER AND SACK

S, Tenants ) in Common, NATIONAL BUILDING ) CORPORATION, ) ) Defendants/Appel

lants. )

APPEAL FROM THE CHAN CERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE WHITNEY STEGALL, SPECIAL CHANCELLOR
For Plaintiffs/Appellees : For Defendants/A ppellants : Steve North Charles Hampton W hite Mark North Andrew D. Dun n Madison, Tennessee Cornelius & Collins Nashville, Tennessee Abby Rubenfeld Nashville, Tennessee


## AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED-2- WILLIAM C. KOCH, JR., JUDGE1 The oth er four in vestors were Da

rren Liff, Zac

kary Liff, Eugen

e Sacks, and Ruth Sa

cks. The investors owned the property as tenants in common and did business under the trade name of (continued...) -3- 

## O P I N I O N

This appeal arises fro

m a dispute over the

lease and renovation of commercial space in Nashville’s Cummins Stat io n. After abandoni ng the leases because the renovations had not been completed within the time promised, the

lessees filed suit in th e Chanc ery Court for Davidson County against the lessors and the project manager. A jury a warded the lessee s $75,000 in compensato ry damages and $1,100,000

in punitive damages w

hich thetrial court later redu ced to $500,000. On this appeal, the lessors and the project mana ger take issue with

the punitive damage awardand with the

inconsistencies betw

een the judgment and th

e jury’s answers t

o special interrogatories. We affirm the c ompensatory damag e award; however, we vacate the punitive damage a

ward and remand th

e case to the trial court to consider whether the compensatory dam age s should be trebled in ac cordance with the Tennessee Consume

r Protection Act.

I.

In early 1993, P aulette Dalton operated two businesses on lower Broadway
near Second Avenue – a vi ntage clothing boutique called The Empe ror’s N ew Clothes and a gallery for lo cal artists calle

d The Gallery on B roa dway. Sh e was considering

relocating her businesses because she need ed more space and becau se she had been approached by G avin Gaskins about com

bining her gallery and boutique witha nightclub. Mr. Gaskins had managed severa

l nightclubs in Nashvill

e, and he and Ms. Dalton believe

d that a nightclub featuring pr

ogressive “grunge” m

usic could be a commercial suc

cess. They beca

me interested in Cummins Sta tion after Ms. Dalton received an adv ertisement from its le asing agents in Ju ly 1993.

Cummins Station is a large, five-story building on the corner of Tenth Avenue, South and Demontbreun Avenue in Nashville. It was erected in 1913 as office and warehouse

space for wholesa

le merchants. It was largely unoc cupied when a group of investors led by Henr

y Sender 1 purchased it in Marc h 1993 with the view to1 (...continued)

“Liff, Sender, and Sacks”. Mr. Sender owned a 25% interest in the property; Mr. and Mrs. Sacks owneda 25% interest; and Darren and Zackary Liff owned the remaining 50% interest. Darren and Zackary Liff eventually acquired Mr. and Mrs. Sacks’s 25% interest in the property.

2 StuartDalton wor

ked as a sales representative for a medical supply company and did not take an active r

ole in the day-to-

day management o

f his wife’s busine

sses.

3 National Building Corporatio n was the proje

ct ma nager for the renovation of Cummins Station. Mr. Sender is the chairman and chief executive officer of National Building Corporation and is also a major stockholder of the company. -4- renovate it into office, re

tail , an d warehouse space . The building had f allen into disrepair, and the purchasers u nderstood that it

would require exte

nsive renovations in order to make it su

itable for commer

cial tenants.

After discussing the l ocation wi th her husband, 2 Ms. Dalton met one of Cummins Station’s leasing a gents to inspect possible

spaces for the boutiq

ue, gallery, and nightclub. Ms. Dalton then toured Cummins Station a second time accompanied by her husband, Mr. G

askins, and the cura

tor of her gallery.

After deciding tha

t the space met their needs, t

he Daltons and Mr. Gaskins formedtwo corporations to carry out their business v enture s. The Daltons inc orporated Concret

e Spaces, Inc. to operate the boutique and art ga

llery, and Ms. D alton and Mr. Gaskins incorporated Faux Fur, Inc. t

o operate the nightcl

ub.

On Au gust 18, 1 993, the Daltons and Mr. Gaskins met with Mr. Sender, Mi chael Cooper, who is Mr. Sender’s son-in-la

w and who is also the president o f National Building Corporation 3 , and the leasing agents to d

iscuss the lease

terms and the improvementsneeded in order to ope rate a boutique, a

rt gallery, and nightclub in the proposed space. Mr. Sender left the meeting early,

and most of the

discussions concerning

the parties’ obligations with regard to the “build out” of the space were handled by Mr. Cooper. During the meeting, Ms. Da

lton stated she desired to open for business in early

October in order

to take advantage of

the peak retail mon

ths of the holiday season. Mr. Cooper and the leasing

agents replied that the space would be ready for occupancy by the first of October.

Atthe conclusion of the m eeting, the leasing

agents provided the D altons and Mr. Gaskins with copies

of two proposed leases – one lease with Concrete Spaces for the boutique and gallery a nd the other lease w

ith Faux Fur for the

nightclub. The Daltons’ lawyer proposed ex tensive alterations

in the leases. Eventua

lly, on August-5-

26, 1993, the parties ex

ecuted two leases for approximately 6 ,520 square feet of contiguous space on the first floor of Cummins Stat ion. The terms of the two leases
were essentially the same . Their term w as for five years,

and therent was $1,222.5 0 per month. Attached t

o both leases was an exhibit add ressing some of the needed improvementsto the space. The Daltons signed the Co

ncrete Spaces le

ase, and Ms. Dalton and Mr. Gaskins signed the Faux Fur lease.

As it turned o ut, the two leases did not clearly allocate the parties’ responsibilities concerning the build out of the lea

sed space. Ms. D alton understood that the lessors would be re sponsible for paying fo r most of the

improvements and for seeing that they were completed in time to open her busine sses in October. Messrs. Sender and Cooper believed that this responsibi lity be longed to the lessees. As a
r esult, the construction of th e improvements wa

s delayed, and numer

ous dispute s arose between the parti es – particularly bet ween Ms. Dalton and Mr. Send er.

Even though the construction plans for the le ased space were not completed until September 28, 1993, the space for the bo

utique and gallery were

ready for their grand opening on October 22, 1993.The insurance com pany providing coverage f or the inventory in the boutique and gallery requir ed Ms. Dalton to inqu ire into the securityand fire safety of the building before she moved her inventory into the new spac e. Eve n though a rear door opening onto a common hallway had not been install ed, Mr. Co oper assured Ms. D alton that the building w as secure and that t

he fire sprinkler system wa

s adequate. Relyin

g on Mr. Cooper’s assurances, Ms. Dalton
mo ved her inventory into the building, and the boutiq ue and gallery o

pened fo r business on October 22 , 1993.

The boutique and gallery w ere burglarized on

October 24 and again on October 27, 1993. The thieves st ole all of Ms. Dalton’ s inventory, a safe containing approximately

$2,350 in cash

and other business docu

ments, a stereo sys

tem, and a cash register. When M s. Dalton suggested that the lessors should reimburse her for the loss because Mr. Cooper had assured her thatthe building was secure, Mr. Sender and one of his business associates declined to accept responsibility for the burglary. They poin ted out that the lease s provided that each l essee was responsi

ble for the security of their space.-6- Followingthe second burglary, the electrical contractor submitted a draw request to Ms. Dalton for $7,500 of the approximately $32,000 in electrical work that had been performed in

the leased space.Ms. Dalton and Mr . Gaskins insisted th at the lessors were responsible for the electrical work. On November 8, 1993, Mr. Gaskins,
on behalf of Faux Fur, wrote a let ter t o Mr. Sender comp

laining about the delay

in completingthe improvements fo r the nightclub and

the “exorbitant bill for proposed ele ctrical work.” Mr. G

askins also stated tha

t he was terminati

ng Faux Fur ’s leas e because of the lessors’ bre

aches. Mr. Sen

der responded on Nove

mber 12, 1993 by informing Mr. Gask

ins that t he lessors intended to hold Faux Fur fully responsible for its obligations under the lease.

Ms. Dalton never reopened the boutique and gallery following the burglaries but continued with

her efforts

to open the nightclub. The planned Octobe r 29, 1993 opening date was rescheduled to January 28, 1994 because the co nstruction of the improvementshad not been complet ed. The relationship be tween Ms. Dalton

and Mr. Sender continued to

deteriorate beca

use of the constructi

on delays, their dispute
overthe b urglary, and their disagreem ent over paying for th

e electrical wor

k. One of their last confrontations occurred when Mr. Sender told Ms. Dalton that

he would not per mit her to operate a gay bar in Cummins St ation. Mr. Sende

r eventually declined to meet with Ms. D alton, and Mr. Da lton was forced to t

ake time away from his job to assist his wif

e with the project.

In early January 1994, Ms. D alton applied for a be er permit and a dance permit in anticipation

of the nightclub’s Jan

uary 28, 1994 opening. She wa s unable to obtain these permits because the lessors could not provid e her with a final

use and occupancy permit an d a certificate from the fi re marshal. Accordingly, Ms.Dalton couldnot sell alcoholic bever

ages when the

nightclub opened on Janua ry 28, 1994. As a gesture of good wi

ll, she gave drinks a

way to the persons w

ho attended the opening.

Ms. Dalton consu lted a

lawyer soon after

Mr. Sender’s ac

cusations that she i ntended to operate a gay bar. On April 6, 1994, a lawyer representing Concret e Spaces and Faux Fur

informed the lessor

s’ lawyer that the lessors had breached the leaseby delaying the con str uction and by failing to obtain a use and occupancy permit from the fire marshal. Accordingly, the lessees’ lawyer stated that it was no-7-

longer feasible for the l

essees to continue to w

ait to open their business and that the lessees would vaca

te the premises on A

pril 11, 1994.

On April 7, 1994, the Daltons and their tw o corporations filed

suit in the Chancery Court for Davidson C ounty a g ainst Mr. Sender, National Building Corporation, and the partnership that owned Cummins St ation. T he co mplaint included claims for breac h of contract, negl

igent m isrepresentation,

fraudulent misrepresent

at ion, and violation of the T ennessee Consumer P

rotection Act and sought recovery of compensatory damages, punitive damages, and treble damages

. The essence of the Daltons’ claim was that Mr. Sender and his business associates had deceived them about the quality and availabil ity of the space in Cummins

Station and that Mr. Sender had “intentionally carried on a systematic plan of harassment and lack of cooperation” to f

orce them to abandon

their leases in orde

r to enable him to lease the space to o

thers on more favor

able terms. The lessors filed a countercla im seeking damages for

the lessees’ alleg

ed breach of the le

ases. Following

a nine-day trial, the jury awarded the Daltons $75,000 in compensatory damag

es and $1,100,000 in punitiv e damag es. The trial co urt denied the post-tr

ial motions but reduce

d the punitivedamage award to $5 00,000 – the amount

of punitive damages pr

ayed for in the complaint.

II.

The lessors mount a three -pronged attack on

the punitive damage award. First, they assert that the tri

al cour t should not have permit ted the jury to awar

d punitive damages because

of its previous finding that the lessors had violated the Tennessee ConsumerProtection Act. Second, they insist that the trial court failed toexplain

its
reasons for approving the punit ive damage award

before ente

ring t he judgment. Third, they assert that the punitive damage award was excessive. Since the first issue is dispositive of the puni

tive damage question,

we pretermit the

latter two issues A.

The trial court, the parties , and the jury struggl ed with the lessees ’ multiple claims for relief when the case was s ubmitted to the ju ry. In its original char ge, the trial court set out the legal principles applicable to the lessees ’ breach of contrac t, fraudulent

misreprese

ntati on, negligent misre presentation, and pu

nitive damage-8-

claims but omitted an instruc tion concerning the Tennessee Consumer Protection Act despitethe lessees’ earl

ier request for one . Thereafter , the trial court pr ovided the jury with a verdict

form containing the f

ollowing five questions: We, the jury, in the cause of Concrete Spaces, Inc., et al. v. Henry Sender, e

t al. find as follows: 1. We find for the plaintiff against the defendant and fix the compensatory damages at _________________. OR 2. We find for the defe

ndant against the p

laintiff and fix

the compensatory damages at _________________. 3. We find that the r e was no meeting of the minds and, therefore, no c

ontract. YES_____ OR NO_____ 4. If compensatory damages for the plaintiff were fixed above by the jury, then the jury will answer this question. Are the plaintiffs due punitive damages under the Tennessee Con sumer Act [sic]? (emphasis added). YES_____ OR NO_____ 5. If you find that

the plaintiffs are entitled to compensatory damages, do such damages arise from an unfair and deceptive act or practice by the d

efendants? YES_____ OR NO_____ During a recess before the jury retired to deliberate, the trial co urt acknowledged
errors in questions four and five. When the jury returned, the t rial court read the corrected verdict form that included revised questions four and five which now read: 4. If compensatory damages for the plaintiff were fixed above by the jury, then the jury will answer this question. Are the plaintiffs due punitive damag

es. YES_____ OR NO_____ 5. If you find that the plaintiffs are entitled to compensatory damages, did such damages a ris e from an unfair or deceptive act or practice by the defendants under the Tennessee Consumer Act [sic]? YES_____ OR NO_____ After deliberating approxi

mately ninety minutes , the jury sent wor d t hat i t wanted a copy of the Tenne ssee Consumer Prot ection Act. Af

ter the parties cou

ld not agree on the substance of a supplemental instruction, the trial court brought the jury back into court and informed them thatit would not be “prope r” to give them a cop

y of the Act because

it was “rather lengthy.” Instead, the trial court provided the jury witha brief de scription o f the Act’s purpose but did not provide a definition of an “unfair or deceptive act or

practice.” Th

e trial court rec

essed for the

day after the jury4 Quotient verdicts are, of course, improper. See Odom v. Gray , 508 S.W.2d 526, 532 (Tenn. 1974); Thompson v. State , 197 Tenn. 112, 116, 270 S.W.2d 379, 381 (1954). Accordingly, the trial court informed th

e jury that it could n

ot render such a

verdict.

5 The trial court simply informedthe jury that “The attorneys have presented the ev

idence to you with respect to the attorneys fees and I think that answers your question.”

6 The trial court

informedthe jury that the General Assembly had “included 29 examples of unfair and deceptive acts or practices” in the statute and that the members of the jur

y “should apply the usual and ordinary meaning to the words unfair and deceptive acts.” -9- asked additional questions co ncerning the proprie

ty of quotient verdi

cts 4 and the calculation

of the parties’ attorney’s fees. When the f oreperson announced that the jury had already a

nswered o ne of the questions on the verdict form, the trial court stated that it would retain the form until the fo

llowing day. In the jury’s absence, th e trial court candidly informed the partie s that it should not have g iven the jury a portion of the instruc

tions concerning the T

ennessee Consumer P

rotection Act.

When courtconvened the next morning, the tr

ial court provided the

jury with
a new verdict form in addition to the one they had already started to fill out. The trial courtalso provided addition al instructions concerning attorney’s fees 5 and the meaning of unfair and deceptive acts or pr actices. 6 After delibera ting for approximately

ninety minutes, the

jury announced its ver

dict. Reading fro

m the jury form, the foreperson stated in answer to question one that

1. We find for theplaintiff against the defendant and fix the compensatory damages at $75,000 plus accrued attorneys fees through case closure

. In answer to the third

question , the jur

y responded that the pa

rties had entered i

nto
a contract. In answer to the f ourth question, the jur

y responded that the

lessees were entitled to punitive damages. Finally, in re sponse to th e fifth question, the jury answered that the lessees’ c ompensatory damages

arose “from

an unfair or deceptive act or practice by the defendants under the Tennessee Consumer Act [sic].”
During a recess before the punitive damage ph ase of the trial,

both la wyers expressed concern over the jur y’s vag ue finding with rega rd to attorney’s fe

es. Eventually, the lawyers and the tr ial court decided tha

t the jury must have intended to award the lessee s $101,000 ($75,000 in c ompensatory damages

plus $26,000 in attorney’s fees paid by the lessees prior to the trial). However, when the jury w as informed that the parties had agreed to amend the

ir verdict to $101,00

0, the7 The lessees made an oral motion at trialto increase their compensatory and treble damages claims but did not move

to increase thei

r punitive damage

claim. -10- foreperson

stated that the jury had intended to include the $26,000 in attorney’s fees that the lessees had already paid in its $ 75,000 award.

With all p arti cipants in agreeme nt with the $75,000 com pensatory damage award, the punitive

damage phase

of the trial proce

eded. The jury de

liberated for less than one hour

and adjourned. Af

ter deliberating br

iefly the following morning, the jury awarded the lesse

es $1,100,000 in

punitivedamages. In resp onse to the lessors’ post-trial motions, the trial court reduced the punitive damage award to $500,000 – the amount praye d for in the complaint 7 – and then approved the reduced punitive damageaward because

of M r. Sender’s “hig

hly insulting” treatm

ent of Ms. Dalton and because of the “

numerous unfair and d

eceptive acts” com

mitted by the lessors.

B.

We mus t, whenever possible, give effect to, rather than undermine, a jury ’ s verdict. See Bankhead v. Hall , 34 Tenn. App. 412, 424, 238 S.W. 2d 522, 527 (1950). Thus, we must give verdicts the ir most favorable i

nterpretation and m

ust give effect to the jury ’s intent if permissible under law, see Briscoe v. A llison , 200 Tenn. 115, 125-26, 290 S.W.2d 864, 868 (1956); Newsom v . Markus , 588 S.W.2d 883, 886 (Tenn. Ct. App. 1979). We must also give effe ct to verdi cts, even if they are defective in form, if they ena

ble the trial court t

o intelligently pass judg

ment on them. See Arcata Graphics Co. v. Heidelberg Harris, Inc. , 874 S.W.2d 15, 27 (Tenn. Ct. App. 1993).

An inconsistent verdict

, however, res olves no conflicts and is no verdict at all. See McInturff

v. White , 565 S.W.2d 478, 481 (Tenn. 1976). It is a

nullity. See Slaten
v. Earl Campbell

ClinicHosp. , 565 S.W.2d 483, 484 (Tenn. 1978); Milliken v. Smit h , 218 Tenn. 665, 668,

405 S.W.2d

475, 477 (1966). Th

us, we cannot give eff

ect to a jury’s verdict based on

irreconcilably

inconsistent answer

s to special interro

gatories. See Hock v. New York Lif e Ins. Co. , 876 P.2d 1242, 1259 ( Colo. 1994); Carr v. Strode , 904 P.2d 489, 503 (Ha w. 1995); S hamro ck, Inc. v. FDIC , 679 N.E.2d 344, 349 (Mass. Ct. App. 1994).-11- Incons istent

verdicts are fre

quently caused by inade quate or confusi

n g instructions. Jurors must receive and act on the law as presented to them by the trial court, see McCorry v. K

ing’s Heirs , 22 Tenn. (3 Hum .) 266, 277 (1842), and the trial court’s instructions are the sole source of the legal principles used by jurors toguide their deliberations. See State ex rel. Myers v. Brown , 209 Tenn. 141, 148 -49, 351 S .W.2d 385, 388 (1961). Thus, trial courts must provide jurors with acc urat e instructions that fairly embody the parties’ theo ries that are supported by the pleadings and th e proof. See Betty v. Metropolitan Gov’t , 835 S.W.2d 1, 1 0 (Tenn. Ct. App. 1992).

In addition to the trial court’s instructions, a special verdict form also provides the jurors with gui dance conc erning how to apply the legal principles in t

he instructions to the evidence they have heard. Decisions regarding the use of special verdict forms and th

e substance of these

questions on the forms rest w ithin thetrial court’s discretion. See Tenn. R. Civ. P. 49.02; Smith v. Parker , 213 Tenn. 147, 159

- 60, 373 S.W.2d 205, 211 (1963); Petty v. Estate of N ichols , 569 S.W.2d 840,

847 (Tenn. Ct. App. 1977). However, a spe cial ve rdict f

orm should include all issues raised by the parties. See Life & Cas. Ins. Co. v. Robertson , 6 Tenn. App. 4 3, 55 (1927).
Special verdict forms should use the same terms as those used in the jury instructions. See Lundquist v. Nic kels , 605 N.E.2d 1373, 1389 (Ill. Ct. App. 1992). They should repeat and highlight the salie nt issues discussed in the

instructions. See Kass v. Great Coastal Express, Inc. , 676 A.2d 1099, 1107 (N.J. Super. 1996)

. Inconsistencies in the jury instructions andthe special verdic t form may confuse t

he jury. See Ladd v. Ho nda Motor Co. , 939 S.W.2d 83, 103 (Tenn. Ct. App. 1996). Thus, the instructions and sp ecial verdi ct form sh ould be construed toget her to determine

whether they present the conteste d issues to the jury in a

n unclouded, fair
manner. See Morton v. City of Chicago , 676 N.E.2d 985, 990 (Ill. Ct. App. 1997); Capers v. The Bon March e , 955 P.2d 822, 825 (

Wash. Ct. App. 1998); Nischke v. Farmers & Merchants Bank &

Trust , 522 N.W.2d 542,

549 (Wis. Ct. App. 1994). Reversal is required when th e special verdict f

orm is confusing and does not comport withthe ju ry instructions. See Helmar v. H arsche , 686 A.2d 766, 775 (N.J. Super. 1996).8 Punitive damages may be a warded in rare cases whe

re the breach o

f contract is

coupled with a tort involving fraud, malice, gross negligence, or oppression. See Medley v. A.W. Chesterton Co. , 912 S.W.2d 748, 753 (Tenn. Ct. App. 1995). -12- When viewed together, the instructions and special verdict fo

rms used in this case could only have c

onfused the

jurors about

the relationship between Tennessee ConsumerProtection Act cl aims and punitive damages. T

he original special verdict form act ually stated that the lessees could receive punitive damages for Tennes se e ConsumerProtection Act cl aims. Even thou

gh the jur ors later receive d a second special verdict form correcting this error, the trial court never explained to them why they were receiving a revised special verdict form and even permitted the j u rors to retain the erroneous form d uring their deliberations. Even as revised, the special verdictform did not forecl ose the possibility that

punitivedamages were av ailable in Tennessee Consumer Protecti on Acts cases, an

d this ambiguityin the special verdict
was compounded by the extremely broad, generalized instructions co n cerning Tennessee Consume

r Protection Act c

laims eventually give

n by the trial court.

The jury’s confusion is reflected in their answers on the special verdict form. Their conclusions that the lessee s are entitled to puni tive damages and tha

t the lessors’ breach of their

lease obligations viol

ated the Tennessee

Consumer Protecti

on Act are inconsistent. P uni tive damages are ge nerally not availabl

e in breach of contractcases, see Bland

v. Smith , 197 Tenn. 683, 687 , 277 S.W.2d 377, 379 (1955); B.F. Myers & Son of Goodlet tsville, Inc. v

. Evans , 612 S.W.2d 912, 916 (Tenn. Ct. App. 1980), 8 and cannot be awarded with regard to TennesseeConsumer Protecti on Act claims. See Lo rentz v. De ardan , 834 S.W.2d 316, 320 (Tenn. Ct. App. 1992); Paty v. Herb Adcox C

hevrolet Co. , 756 S.W.2d 697, 699 (Tenn. Ct. App. 1988). In the place of

punitivedamages, Tenn. Code Ann. § 47-18-109(a)(3) (1995) authorizes t rial courts to award tr

eble damages when there has been a “w illful o r knowing ” violation of the Tennessee C

onsumer Prote

ction Act. See Smith v. Scott Lewis Chevrolet, Inc. , 843 S.W.2d 9, 12 (Tenn. Ct. App. 1992).

The problem created by the jury’s misunderstanding about punitive damages does not necessarily vitia te the entire verdi

ct. Verdicts hav

e a liability compone

nt and a damage component. See All v. John G erber Co. , 36 Tenn. App. 134, 138, 252 S.W.2d 138, 139 (1952). Th

e instructi ons and spe cial verdict form presented the liabilityand compensatory damage issues to the j ury fairly and understa ndably but9 No issue was raised on this appeal concerning whether the Tennessee Consumer

Protection Act applies to commercial transactions such as the one involved in this case. Th us, our opinion provides no precedent for extendingthe Tennessee Co nsumer Protection

Act to commercia

l leases.

10 See generally Lisa K. Gregory, Annot ation, Pla intiff’s Rights to Puni tive or Multiple Damages When Caus

e of Action Render

s Both Available , 2 A.L.R. 5th 449 (1992). -13- fell short only with regar d to the enhanced damage issues. Accordingly, we affirm the portion of the verdic

t and judgment finding th at the lessors b

rea ched the lease agreemen ts and d etermining that the lessees sustained $75,000 in compensatory damages as a result of these breaches. How

ever, we vacat

e the punitive damage awardand remand the case to enable the trial c

ourt to determine w

hether the lessees’ compensatory damages should be tre bled a ccording to the standa rds contained in Tenn. Code Ann. § 47-18-109(a)(3)&(4). 9

C.

Tenn. R. Civ. P. 8.01 permits plaintiffs to plead in the alternative. Accordingly, it is now common for plaintiffs t o include Tennessee Consumer Protection

Act cl aim s in the same complai nt with common-law

claims for fraud, promissory fraud, or fraudulent o r negligent misrepr esentation. It is also common for pla intiffs to request punitive damages and treble damages in the same complai nt. 1 0 Because plaintiffs are not entitled to both punitive damage s andtreble damages, see Lorentz v. Deardan , 834 S.W.2d at 32 0, trial courts and

the parties should take care to make sure that

the issues involving the exemplary damages be presented to the jury clearly and fairl

y.

We offer the following suggestions for avoiding the co nfusi on that beset the jury in this case. The jury instructions should fairly set out the elements of each of the plaintiff’s common-law and statutory causes of action. A tria l court may permit th e jury to return a gene

ral verdict, but if

the plaintiff is see

king both punitiv e an d trebledamages, the trial courtmust require the jur y to answer two ques

tions. If the jury awards the plaintiff compensatory damages, it must also decide (1) wh

ether the11 This question relate s to the pl aintiff’s claim for treble damages under the Tennessee Consumer Protectio

n Act.

12 Th is question relates to the plaintiff’s claim for punitive damages and is required by Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 900-901 (Tenn. 19 92) in order to determine whether the jury will proceed to co

nsider the plaintif

f’s punitive dama

ge claim. -14- acts giving rise to the comp ensato ry damages were knowing and willful 11 and (2) whether the defendant acted int

entionally, fraudul

ently, maliciously, or re

cklessly. 12

If the jury answers “no” to both questions, then the plaintiff is not entitled to exemplary damages under any the ory. If the jury answers “

yes” to the first que stion and “no” to the

second, the trial c

ourt must proceed on i

ts own to determine whether the compensatory damages should be trebled in accordance with the Tennessee ConsumerProtection Act. If thejury answers “yes” to the second question

and “no” to the first, the jur

y must determine wh

ether the plaintiff

should recover punitiv

e damages in accordance with the procedures mandated by the Hodges v. S.C. Toof & Co. decision.
Conceivably, the jury could answer “yes” to both questions. If a jury does so, the trial court should, at that juncture, i nvoke the doc trin e of election of remedies
w hose purpose is to preve nt the possibili ty of double recove ry of damages. S e e Wimley v. Rudolph , 931 S.W.2d 513, 515 (Tenn. 1996); Allied Sound, Inc. v. Neely , 909 S.W.2d 815, 822 (Tenn. Ct. App. 1995). In order to prevent a d

ouble recovery of exemplary damages, the trial court should require the plaintiff to decide whether itwill pursue punitive d

amages in accorda

nce with the Hodges v. S. C. Toof & Co. decision or whether it will pursue treble damages in ac cordance w ith Tenn. Code Ann. § 47-18-109(a)(3)&(4).

In lieu of a general verdict, the trial court may also decide to submit spec ia l interro gatories to the jury in accord ance with Tenn. R. Civ. P. 49. I n tha t circumstance, the trial court’s instructions must fairly set out th

e elements of eac

h of the plaintiff’s common-law and statutory causes of action. The special interrogatories must be con si stent with the instructions and must cover each of the plaintiff’s common-law and statutory claims . If the jury determines that the plaintiff is entitled-15-

to compensatory damag

es, it should state th

e amount of the dama

ges and should also identify each of the causes of action for whic

h the plaintiff has carried its burden of proof. The jury should also be asked (1) whether

the acts giving rise t

o the compensatory damages were know ing and willful

or (2) whether the defendant acted intentionally, fra

udulently, malicious

ly, or recklessly.

If the jury answ ers “no” to both of the se questions, then the plaintiff is not entitled to exempl ar y damages under any th eory. If the jury answers “yes” to t he former and “no” to the latte

r, then the trial c

ourt should

proceed to considerwhether the compe nsatory damages should be trebled under the Tennessee Consumer Protection

Act if, and only if

, the jury has also

determin ed that the defendant has violated the Tennessee ConsumerProtection Act but not any of the other c

ommonlaw claims. If the ju

ry answers “n o” to the former question and “yes” to the latter, the trial court shoul

d proceed wit

h the hearing on punitive damages if, and only if, the jury has determined that the plaintiff has carried its bur

den of proof on any of i

ts
com mon- law claims warranti ng punitive damages,

but not on its claim unde r the Tennessee ConsumerProtection Act. If the jury answe rs “yes” to

both questions and has determined that the

plaintiff has carr

ied its burden of proof

wit h regar d to its Tennessee Consumer Protecti on Act claim and at

least one of its comm

on-law claims, then the trial court should require the plaintiff to decide to pursue ei ther pun itive damages or treble dama ges under the Tenness ee Consumer Protectio n Act.

III.

As a final matter,

the lessors argue th

at discrepancies i

n the designation

of the part ies in the special verdi ct forms and the judgm

ent require that the

jud gment b e overturned. Relying on Whittemore v. Classen , 808 S.W.2d 447, 458 (Tenn. Ct. App

. 1991), they assert that the ver dict is too uncertain to permit the entry of a judgme

nt and that the judgment does not co nform to the verdict. Whil e the discrepancie s in the sp ecial verdict form and th e judgment are unfor

tunate, we find th

at they did n o t prevent the trial court fr

om intelligently

rendering a

judgment in the case c

onsistent with the jury’s ver

dict.

A.13 As a matter of law, the acts of partners taken in the course of partnership business are

bi nding o n the partnership. See Pritchett v. Thomas Plater & Co. , 144 Tenn. 406, 444, 232 S.W. 961, 972 (1921); Wyatt v. Brown , 39 Tenn. App. 28, 35, 281 S.W.2d 64, 68 (1955).

14 Mr. Sender was the president and principal stockholder of

National Building Corporation. Corporation s act at the direction of their officers and through their officers and employees. See Nelso n v. Martin , 958 S.W.2d 643, 650 (Tenn. 1997); Allied Sound, Inc. v. Neely , 909 S.W .2d a t 821. The record contains no evid ence that Mr. Sender was not acting on behalf of both the construction company and the partnership in his dealings with Ms. Dalton. -16- The complaint

named four plaintiffs and three defendants and alleged that each group had strong business connections. The plaintiffs included Ms . Dalton, her husband, and the two corporations she formed to opera te her gallery, bo

utique, and nightclub. The defendants included Mr. Sender, the partnership consisting of Mr. Sender and o thers formed to develop and lease Cummins Station, and National Building Corporation, Mr. Sender’s construction company run by his son-in-law that was serving as the con struction manager fo r the Cummins Statio n project.

From the outset of the litigation, all parties recogniz ed the strong unity of int eres t among the parties pla intiff on one hand and t

he parties defenda

nt on the other. Virtually

all the claims for

relief in the compl

aint referred to the “plaintiffs” collectively

and to the “defendants” colle ctively. Likewi se, the answer a nd counterclaim

were fi led on beh alf of the “defendants” collectively, and the factual
ave rmen ts in both the answer a nd the counterclaim

referred collec

tively to the “plaintiffs”

and the “defendants .” The pleadings conta in no indication that an

y single plaintiff or defendant took a position inconsis tent with its counter

parts or that any defendant undertook t

o pass liability on to one

of the other defenda

nts.

The parties maintained their uni ty of interest

throughout the discover

y process, the pretrial pro ceedings, and the trial. Ne ither party present

ed evidence that the plaintiffs or the defendants w ere not acting in concert.Ms. Dalton was the pla intiffs’ central witness, and Mr. Sender w as the only defendant participating in the t rial. The evidence makes clear that Mr. Sender was not just representing himself but wa s also representing the int

erests of the partn

ership 13 and National Buildin g Corporation. 14

The lessors’ proposed inst ructions and proposed s

pecial verdict for

m als o referred to the “plaintiffs”

and the “defendants ” collectively. I n addition, the opening and closing statements of the lawyers for both parties contained repeated references15 These questions include the first and second questions on thespecial verdict form which state “[w]e find for the plaintiff against the defendant and fix compens atory damag es at _____” (emphasis

added) and that

“[w]e find for the defendant against the plaintiff

and fix the compensatory damages at _____” (emphasis added).

16 The fourth question on the special verdict form stated: “If

compensatory damages for the plaintiff were found above by the jury, then the jury will answer the question. Are the plaintiffs due punitive damages?” (emphasis added).

17 The fifthquestion on the special verdict form asked: “If you find that the plaintiffs ar e entitled to compensatory damages, did such damages arise from an unfair or deceptive act or practice by the defendants

under the Tennessee Consumer Act [sic]?” (emphasis added).

18 The question regarding punitive damages read, in part, as follows: “You, the jury, h ave found that the plaintiffs

are entitled to punitive damages. It is now your duty to fix the amount of damages.” (emphasis added). -17- to the “plaintiffs” a

nd the “defendants.” T

he trial court’s ins

tructions were lik

ewise couched in terms of “plainti ffs” and “defenda

nts.” Inexplicably , bothversions of the special verdict form prepared by t he t rial court did not cont ain consistent, complementary references to the remedies. I n two of the four que stions referring to the parties, the parties are referred to in the singular rather th an the plural. 15 One question contained pa

rty desig nations in both singular and plural form, 16 and one question referred

to both groups of parties in the plural. 17

Neither party took issue with

the plural or singular designations of the parties plaintiff or t he par ties defendant or with the special verdict form. When the jury
ann ounced its verdict regard ing compensatory dama

ges, neither part

y requeste d clarifications

with regard to

whom or against whom the damages had been awarded. Likewise, neithe r part y took issue with the spe cial interrogator

y on punitive damages, 18 and when the jury ann ounced that it had awarded the “plaintif fs” $1,100,000

in punitive

da mages, neither pa

rty requested clar

ification concerni

ng against whom or in w

hose favor these dam

ages had been awar

ded.
Thereafter, the trial court ente red a judgment prepa

red by the

lessees’ lawyer that recited the jury’s answers on the two special verdict forms and that ordered “that the plaintiffshave and recover of the defendants

judgment in the amount of SeventyFive Thousand Dollars ( $75,000.00) compensa tory damages and One

Million One Hundred Thousand Dollars ($1,100,000.00) punitive dama ge s.” (emphasis added). Notwithstanding

the useof the preceding plur al designations of the

“plaintiffs” and the “defendants,” the

judg ment concluded by taxing the costs ag ainst the “defendan t.”-18- The lessors raised the i ssue of the discrepa ncies caus ed by t he use of the singular and plural refere nces in the two verdi

ct forms and the judgm

ent for the first time in their motion for ne w trial. After

noting that the case had been tried on the basis that there was a u

nity of interest betw

een the parties plaintiff a nd the parties defendant, the trial court declined to grant a new trial bec ause the less ors had not raised the issue at the stage of the proceeding w

here the ambiguity c

ould easily have been clarified and corrected if need be.

B.

We have determined tha t the lessors have waived their opportunit y to take issue with the designations of the parties. L

ike the lessees,

the lessors tried thi s case
on the basis that there was a unity of interest among the parties plaintiff and a similar unity of i n terest among the par ties defendant. U

nlike the other ambig

uity in the jury’s compensatory damag e verdict that was

raised and

corrected while

the jury was still empaneled, the le ssors did not call the trial court’s attention to the discrepancies in the parties’ designations while the jury could still have corrected them. Lawyers have an ob ligat ion to assist the trial court at all stages of litigation and cannot seek relie f on appeal from errors th at were, in part, of their own making. See Tenn. R

. App. P. 36(a); Henry County Bd. of Educ. v. Bu rton , 5 38 S.W.2d 394, 397 ( Tenn. 1976); Gilson v. Gillia , 45 Tenn. App. 193, 217, 3 21 S.W.2d 855, 866 (19 58).

The lessors insist, however, that the ambiguous desi gnation of the partie s on the verdict forms are

so fundamentally prejudicial that they should be exc used from their obligation to alert the tri al court in a timely manner so that they can be corrected. While we do not make light of the obvious short comings of the

sp ecial verdictforms used in this ca se , w e have concluded that the lessors overstat

e the prejudicial significance of the problem.
A trial court may enter

a judgment on a

jury verdict, even when the verdict’s formis defective, as long as the verdict pe rmits the trial cour

t to i ntelligently pass judgment according to the ju ry’s decision. See Arcata Graphic s C o. v. Heidelber

g Harris, Inc. , 874 S.W.2d at 27 ; Tennessee Cent. R y. v. Scarbrough , 9 Tenn. App. 2 95, 299 (1928). However, the lessors insist that the trial courtcould not intelligently pass judgment on the verdic

t because the answe

rs to the special interrogatories were too-19-

uncertain to enable the trial court to determine against whom the damages were awarded. See Whittemore v. Classen , 808 S.W.2d at 45 8-59. We disagree under the facts of this case.

When a verdict or

judgment is awarded against multiple parties designated as “defendants”

rather than by name, the courts may look to t he process, pleadi

ngs, and proceedings to ascertain the pa rties against whom

the jury has rendered the ve rdict. See Wilson v. Nan ce , 30 Tenn. (11 Hum .) 189, 191-92 (1850) . Despite the slopp y drafting of the special inter rogatories, the pleadings and the o verwhelming weig

ht of the evidence perm itte d the trial court to c onclude that the jury i

ntended to return a verdictin fav or of all plaintiffs against all defendants. Accordingly, the trial court could properly ent er judgment for all pl aintiffs against al l defendants.

IV.

We affirm the portion

of the judgment awa

rding all plaintiffs

$75,000 in compensatory damages against all defendants, a nd we reverse the $500,000 judgme nt for punitive damages aga

inst all defendants.We remand the ca se to enable the trial courtto determine

whether the plaintiffs’ compensatory damages should be trebled under the standards contai ned in Tenn. Code Ann.§ 47-18-109(a)(3)& (4) and for any otherproceedings that may be necessary. We tax the costs of this appeal in equal proportions to Paulette and Stuart Dalton, jo

intly and severally,

and to Henry Sender and his surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ BEN H. CANTRELL, JUDGE