FILED

July 31, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

CONCRETE SPACES, INC., )

FAUX FUR, INC., )

PAULETTE DALTON, and )

STUART DALTON, )

) Davidson Chancery

Plaintiffs/Appellees, ) 94-993-I

)

VS. ) Appeal No.

) 01A01-9607-CH-00288

HENRY SENDER, Individually, )

DARREN LIFF and ZACKARY LIFF, )

HENRY SENDER, EUGENE I. SACKS )

and wife RUTH SACKS, d/b/a )

LIFF, SENDER AND SACKS, Tenants )

in Common, NATIONAL BUILDING )

CORPORATION, )

)

Defendants/Appellants. )

APPEAL FROM THE CHANCERY COURT

FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WHITNEY STEGALL, SPECIAL CHANCELLOR

For Plaintiffs/Appellees: For Defendants/Appellants:

Steve North Charles Hampton White

Mark North Andrew D. Dunn

Madison, Tennessee Cornelius & Collins

Nashville, Tennessee

Abby Rubenfeld

Nashville, Tennessee

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED
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WILLIAM C. KOCH, JR., JUDGE
1The other four investors were Darren Liff, Zackary Liff, Eugene Sacks, and Ruth Sacks.

The investors owned the property as tenants in common and did business under the trade name of

(continued...)

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O P I N I O N

This appeal arises from a dispute over the lease and renovation of commercial

space in Nashville’s Cummins Station. After abandoning the leases because the

renovations had not been completed within the time promised, the lessees filed suit

in the Chancery Court for Davidson County against the lessors and the project

manager. A jury awarded the lessees $75,000 in compensatory damages and

$1,100,000 in punitive damages which the trial court later reduced to $500,000. On

this appeal, the lessors and the project manager take issue with the punitive damage

award and with the inconsistencies between the judgment and the jury’s answers to

special interrogatories. We affirm the compensatory damage award; however, we

vacate the punitive damage award and remand the case to the trial court to consider

whether the compensatory damages should be trebled in accordance with the

Tennessee Consumer Protection Act.

I.

In early 1993, Paulette Dalton operated two businesses on lower Broadway

near Second Avenue – a vintage clothing boutique called The Emperor’s New

Clothes and a gallery for local artists called The Gallery on Broadway. She was

considering relocating her businesses because she neededmore space and because she

had been approached by Gavin Gaskins about combining her gallery and boutique

with a nightclub. Mr. Gaskins had managed several nightclubs in Nashville, and he

and Ms. Dalton believed that a nightclub featuring progressive “grunge” music could

be a commercial success. They became interested in Cummins Station after Ms.

Dalton received an advertisement from its leasing agents in July 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 wholesale merchants. It was largely unoccupied when a group

of investors led by Henry Sender1

purchased it in March 1993 with the view to
1

(...continued)

“Liff, Sender, and Sacks”. Mr. Sender owned a 25% interest in the property; Mr. and Mrs. Sacks

owned a 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

Stuart Dalton worked as a sales representative for a medical supply company and did not

take an active role in the day-to-day management of his wife’s businesses.

3National Building Corporation was the project manager 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, retail, and warehouse space. The building had fallen into

disrepair, and the purchasers understood that it would require extensive renovations

in order to make it suitable for commercial tenants.

After discussing the location with her husband,2 Ms. Dalton met one of

Cummins Station’s leasing agents to inspect possible spaces for the boutique, gallery,

and nightclub. Ms. Dalton then toured Cummins Station a second time accompanied

by her husband, Mr. Gaskins, and the curator of her gallery. After deciding that the

space met their needs, the Daltons and Mr. Gaskins formed two corporations to carry

out their business ventures. The Daltons incorporated Concrete Spaces, Inc. to

operate the boutique and art gallery, and Ms. Dalton and Mr. Gaskins incorporated

Faux Fur, Inc. to operate the nightclub.

On August 18, 1993, the Daltons and Mr. Gaskins met with Mr. Sender,

Michael Cooper, who is Mr. Sender’s son-in-law and who is also the president of

National Building Corporation3, and the leasing agents to discuss the lease terms and

the improvements needed in order to operate a boutique, art 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. Dalton stated she desired to open

for business in early October in order to take advantage of the peak retail months of

the holiday season. Mr. Cooper and the leasing agents replied that the space would

be ready for occupancy by the first of October.

At the conclusion of the meeting, the leasing agents provided the Daltons and

Mr. Gaskins with copies of two proposed leases – one lease with Concrete Spaces for

the boutique and gallery and the other lease with Faux Fur for the nightclub. The

Daltons’ lawyer proposed extensive alterations in the leases. Eventually, on August
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26, 1993, the parties executed two leases for approximately 6,520 square feet of

contiguous space on the first floor of Cummins Station. The terms of the two leases

were essentially the same. Their term was for five years, and the rent was $1,222.50

per month. Attached to both leases was an exhibit addressing some of the needed

improvements to the space. The Daltons signed the Concrete Spaces lease, and Ms.

Dalton and Mr. Gaskins signed the Faux Fur lease.

As it turned out, the two leases did not clearly allocate the parties’

responsibilities concerning the build out of the leased space. Ms. Dalton understood

that the lessors would be responsible for paying for most of the improvements and for

seeing that they were completed in time to open her businesses in October. Messrs.

Sender and Cooper believed that this responsibility belonged to the lessees. As a

result, the construction of the improvements was delayed, and numerous disputes

arose between the parties – particularly between Ms. Dalton and Mr. Sender. 

Even though the construction plans for the leased space were not completed

until September 28, 1993, the space for the boutique and gallery were ready for their

grand opening on October 22, 1993. The insurance company providing coverage for

the inventory in the boutique and gallery required Ms. Dalton to inquire into the

security and fire safety of the building before she moved her inventory into the new

space. Even though a rear door opening onto a common hallway had not been

installed, Mr. Cooper assured Ms. Dalton that the building was secure and that the

fire sprinkler system was adequate. Relying on Mr. Cooper’s assurances, Ms. Dalton

moved her inventory into the building, and the boutique and gallery opened for

business on October 22, 1993.

The boutique and gallery were burglarized on October 24 and again on October

27, 1993. The thieves stole all of Ms. Dalton’s inventory, a safe containing

approximately $2,350 in cash and other business documents, a stereo system, and a

cash register. When Ms. Dalton suggested that the lessors should reimburse her for

the loss because Mr. Cooper had assured her that the building was secure, Mr. Sender

and one of his business associates declined to accept responsibility for the burglary.

They pointed out that the leases provided that each lessee was responsible for the

security of their space.
-6-

Following the 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 that the

lessors were responsible for the electrical work. On November 8, 1993, Mr. Gaskins,

on behalf of Faux Fur, wrote a letter to Mr. Sender complaining about the delay in

completing the improvements for the nightclub and the “exorbitant bill for proposed

electrical work.” Mr. Gaskins also stated that he was terminating Faux Fur’s lease

because of the lessors’ breaches. Mr. Sender responded on November 12, 1993 by

informing Mr. Gaskins that the 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 October 29, 1993

opening date was rescheduled to January 28, 1994 because the construction of the

improvements had not been completed. The relationship between Ms. Dalton and

Mr. Sender continued to deteriorate because of the construction delays, their dispute

over the burglary, and their disagreement over paying for the electrical work. One

of their last confrontations occurred when Mr. Sender told Ms. Dalton that he would

not permit her to operate a gay bar in Cummins Station. Mr. Sender eventually

declined to meet with Ms. Dalton, and Mr. Dalton was forced to take time away from

his job to assist his wife with the project.

In early January 1994, Ms. Dalton applied for a beer permit and a dance permit

in anticipation of the nightclub’s January 28, 1994 opening. She was unable to obtain

these permits because the lessors could not provide her with a final use and

occupancy permit and a certificate from the fire marshal. Accordingly, Ms. Dalton

could not sell alcoholic beverages when the nightclub opened on January 28, 1994.

As a gesture of good will, she gave drinks away to the persons who attended the

opening. 

Ms. Dalton consulted a lawyer soon after Mr. Sender’s accusations that she

intended to operate a gay bar. On April 6, 1994, a lawyer representing Concrete

Spaces and Faux Fur informed the lessors’ lawyer that the lessors had breached the

lease by delaying the construction 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 lessees to continue to wait to open their business and that the

lessees would vacate the premises on April 11, 1994.

On April 7, 1994, the Daltons and their two corporations filed suit in the

Chancery Court for Davidson County against Mr. Sender, National Building

Corporation, and the partnership that owned Cummins Station. The complaint

included claims for breach of contract, negligent misrepresentation, fraudulent

misrepresentation, and violation of the Tennessee Consumer Protection 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 availability of the space in Cummins Station

and that Mr. Sender had “intentionally carried on a systematic plan of harassment and

lack of cooperation” to force them to abandon their leases in order to enable him to

lease the space to others on more favorable terms. The lessors filed a counterclaim

seeking damages for the lessees’ alleged breach of the leases. Following a nine-day

trial, the jury awarded the Daltons $75,000 in compensatory damages and $1,100,000

in punitive damages. The trial court denied the post-trial motions but reduced the

punitive damage award to $500,000 – the amount of punitive damages prayed for in

the complaint. 

II.

The lessors mount a three-pronged attack on the punitive damage award. First,

they assert that the trial court should not have permitted the jury to award punitive

damages because of its previous finding that the lessors had violated the Tennessee

Consumer Protection Act. Second, they insist that the trial court failed to explain its

reasons for approving the punitive damage award before entering the judgment.

Third, they assert that the punitive damage award was excessive. Since the first issue

is dispositive of the punitive damage question, we pretermit the latter two issues 

A.

The trial court, the parties, and the jury struggled with the lessees’ multiple

claims for relief when the case was submitted to the jury. In its original charge, the

trial court set out the legal principles applicable to the lessees’ breach of contract,

fraudulent misrepresentation, negligent misrepresentation, and punitive damage
-8-

claims but omitted an instruction concerning the Tennessee Consumer Protection Act

despite the lessees’ earlier request for one. Thereafter, the trial court provided the

jury with a verdict form containing the following five questions:

We, the jury, in the cause of Concrete Spaces, Inc., et al. v.

Henry Sender, et 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 defendant against the plaintiff and fix the

compensatory damages at _________________.

3. We find that there was no meeting of the minds and,

therefore, no contract.

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 Consumer 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 defendants?

YES_____ OR NO_____

During a recess before the jury retired to deliberate, the trial court acknowledged

errors in questions four and five. When the jury returned, the trial 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 damages.

YES_____ OR NO_____

5. If you find that the plaintiffs are 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]?

YES_____ OR NO_____

After deliberating approximately ninety minutes, the jury sent word that it

wanted a copy of the Tennessee Consumer Protection Act. After the parties could not

agree on the substance of a supplemental instruction, the trial court brought the jury

back into court and informed them that it would not be “proper” to give them a copy

of the Act because it was “rather lengthy.” Instead, the trial court provided the jury

with a brief description of the Act’s purpose but did not provide a definition of an

“unfair or deceptive act or practice.” The trial court recessed for the day after the jury
4Quotient 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 the jury that it could not render such a verdict.

5The trial court simply informed the jury that “The attorneys have presented the evidence to

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

6The trial court informed the 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 jury “should apply

the usual and ordinary meaning to the words unfair and deceptive acts.” 

-9-

asked additional questions concerning the propriety of quotient verdicts4

 and the

calculation of the parties’ attorney’s fees. When the foreperson announced that the

jury had already answered one of the questions on the verdict form, the trial court

stated that it would retain the form until the following day. In the jury’s absence, the

trial court candidly informed the parties that it should not have given the jury a

portion of the instructions concerning the Tennessee Consumer Protection Act.

When court convened the next morning, the trial court provided the jury with

a new verdict form in addition to the one they had already started to fill out. The trial

court also provided additional instructions concerning attorney’s fees5 and the

meaning of unfair and deceptive acts or practices.6 After deliberating for

approximately ninety minutes, the jury announced its verdict. Reading from the jury

form, the foreperson stated in answer to question one that

1. We find for the plaintiff 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 jury responded that the parties had entered into

a contract. In answer to the fourth question, the jury responded that the lessees were

entitled to punitive damages. Finally, in response to the fifth question, the jury

answered that the lessees’ compensatory 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 phase of the trial, both lawyers

expressed concern over the jury’s vague finding with regard to attorney’s fees.

Eventually, the lawyers and the trial court decided that the jury must have intended

to award the lessees $101,000 ($75,000 in compensatory damages plus $26,000 in

attorney’s fees paid by the lessees prior to the trial). However, when the jury was

informed that the parties had agreed to amend their verdict to $101,000, the
7The lessees made an oral motion at trial to increase their compensatory and treble damages

claims but did not move to increase their punitive damage claim.

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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 participants in agreement with the $75,000 compensatory damage

award, the punitive damage phase of the trial proceeded. The jury deliberated for less

than one hour and adjourned. After deliberating briefly the following morning, the

jury awarded the lessees $1,100,000 in punitive damages. In response to the lessors’

post-trial motions, the trial court reduced the punitive damage award to $500,000 –

the amount prayed for in the complaint7 – and then approved the reduced punitive

damage award because of Mr. Sender’s “highly insulting” treatment of Ms. Dalton

and because of the “numerous unfair and deceptive acts” committed by the lessors.

B.

We must, 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 their most favorable interpretation and must give effect

to the jury’s intent if permissible under law, see Briscoe v. Allison, 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 effect to verdicts, even if they are

defective in form, if they enable the trial court to intelligently pass judgment on them.

See Arcata Graphics Co. v. Heidelberg Harris, Inc., 874 S.W.2d 15, 27 (Tenn. Ct.

App. 1993). 

An inconsistent verdict, however, resolves 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 Clinic Hosp., 565 S.W.2d 483, 484 (Tenn. 1978); Milliken v. Smith,

218 Tenn. 665, 668, 405 S.W.2d 475, 477 (1966). Thus, we cannot give effect to a

jury’s verdict based on irreconcilably inconsistent answers to special interrogatories.

See Hock v. New York Life Ins. Co., 876 P.2d 1242, 1259 (Colo. 1994); Carr v.

Strode, 904 P.2d 489, 503 (Haw. 1995); Shamrock, Inc. v. FDIC, 679 N.E.2d 344,

349 (Mass. Ct. App. 1994).
-11-

Inconsistent verdicts are frequently caused by inadequate or confusing

instructions. Jurors must receive and act on the law as presented to them by the trial

court,see McCorry v. King’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 to guide

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 accurate

instructions that fairly embody the parties’ theories that are supported by the

pleadings and the proof. See Betty v. Metropolitan Gov’t, 835 S.W.2d 1, 10 (Tenn.

Ct. App. 1992).

In addition to the trial court’s instructions, a special verdict form also provides

the jurors with guidance concerning how to apply the legal principles in the

instructions to the evidence they have heard. Decisions regarding the use of special

verdict forms and the substance of these questions on the forms rest within the trial

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 Nichols, 569 S.W.2d 840, 847

(Tenn. Ct. App. 1977). However, a special verdict form should include all issues

raised by the parties. See Life & Cas. Ins. Co. v. Robertson, 6 Tenn. App. 43, 55

(1927). 

Special verdict forms should use the same terms as those used in the jury

instructions. See Lundquist v. Nickels, 605 N.E.2d 1373, 1389 (Ill. Ct. App. 1992).

They should repeat and highlight the salient 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 and the special verdict form may confuse the

jury. See Ladd v. Honda Motor Co., 939 S.W.2d 83, 103 (Tenn. Ct. App. 1996).

Thus, the instructions and special verdict form should be construed together to

determine whether they present the contested issues to the jury in an unclouded, fair

manner. See Morton v. City of Chicago, 676 N.E.2d 985, 990 (Ill. Ct. App. 1997);

Capers v. The Bon Marche, 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 the special verdict form is confusing and does not comport

with the jury instructions. See Helmar v. Harsche, 686 A.2d 766, 775 (N.J. Super.

1996). 
8

Punitive damages may be awarded in rare cases where the breach of 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).

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When viewed together, the instructions and special verdict forms used in this

case could only have confused the jurors about the relationship between Tennessee

Consumer Protection Act claims and punitive damages. The original special verdict

form actually stated that the lessees could receive punitive damages for Tennessee

Consumer Protection Act claims. Even though the jurors later received 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 jurors to

retain the erroneous form during their deliberations. Even as revised, the special

verdict form did not foreclose the possibility that punitive damages were available in

Tennessee Consumer Protection Acts cases, and this ambiguity in the special verdict

was compounded by the extremely broad, generalized instructions concerning

Tennessee Consumer Protection Act claims eventually given by the trial court.

The jury’s confusion is reflected in their answers on the special verdict form.

Their conclusions that the lessees are entitled to punitive damages and that the

lessors’ breach of their lease obligations violated the Tennessee Consumer Protection

Act are inconsistent. Punitive damages are generally not available in breach of

contract cases, see Bland v. Smith, 197 Tenn. 683, 687, 277 S.W.2d 377, 379 (1955);

B.F. Myers & Son of Goodlettsville, Inc. v. Evans, 612 S.W.2d 912, 916 (Tenn. Ct.

App. 1980),8 and cannot be awarded with regard to Tennessee Consumer Protection

Act claims. See Lorentz v. Deardan, 834 S.W.2d 316, 320 (Tenn. Ct. App. 1992);

Paty v. Herb Adcox Chevrolet Co., 756 S.W.2d 697, 699 (Tenn. Ct. App. 1988). In

the place of punitive damages, Tenn. Code Ann. § 47-18-109(a)(3) (1995) authorizes

trial courts to award treble damages when there has been a “willful or knowing”

violation of the Tennessee Consumer Protection 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 vitiate the entire verdict. Verdicts have a liability component

and a damage component. See All v. John Gerber Co., 36 Tenn. App. 134, 138, 252

S.W.2d 138, 139 (1952). The instructions and special verdict form presented the

liability and compensatory damage issues to the jury fairly and understandably but
9No 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. Thus, our opinion

provides no precedent for extending the Tennessee Consumer Protection Act to commercial leases.

10See generally Lisa K. Gregory, Annotation, Plaintiff’s Rights to Punitive or Multiple

Damages When Cause of Action Renders Both Available, 2 A.L.R. 5th 449 (1992).

-13-

fell short only with regard to the enhanced damage issues. Accordingly, we affirm

the portion of the verdict and judgment finding that the lessors breached the lease

agreements and determining that the lessees sustained $75,000 in compensatory

damages as a result of these breaches. However, we vacate the punitive damage

award and remand the case to enable the trial court to determine whether the lessees’

compensatory damages should be trebled according to the standards 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 to include Tennessee Consumer

Protection Act claims in the same complaint with common-law claims for fraud,

promissory fraud, or fraudulent or negligent misrepresentation. It is also common for

plaintiffs to request punitive damages and treble damages in the same complaint.10

Because plaintiffs are not entitled to both punitive damages and treble damages, see

Lorentz v. Deardan, 834 S.W.2d at 320, 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 fairly.

We offer the following suggestions for avoiding the confusion 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 trial court may permit

the jury to return a general verdict, but if the plaintiff is seeking both punitive and

treble damages, the trial court must require the jury to answer two questions. If the

jury awards the plaintiff compensatory damages, it must also decide (1) whether the
11This question relates to the plaintiff’s claim for treble damages under the Tennessee

Consumer Protection Act.

12This 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. 1992) in order to determine whether the jury

will proceed to consider the plaintiff’s punitive damage claim.

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acts giving rise to the compensatory damages were knowing and willful11 and (2)

whether the defendant acted intentionally, fraudulently, maliciously, or recklessly.12

If the jury answers “no” to both questions, then the plaintiff is not entitled to

exemplary damages under any theory. If the jury answers “yes” to the first question

and “no” to the second, the trial court must proceed on its own to determine whether

the compensatory damages should be trebled in accordance with the Tennessee

Consumer Protection Act. If the jury answers “yes” to the second question and “no”

to the first, the jury must determine whether the plaintiff should recover punitive

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, invoke the doctrine of election of remedies

whose purpose is to prevent the possibility of double recovery of damages. See

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 double recovery

of exemplary damages, the trial court should require the plaintiff to decide whether

it will pursue punitive damages in accordance with the Hodges v. S. C. Toof & Co.

decision or whether it will pursue treble damages in accordance with Tenn. Code

Ann. § 47-18-109(a)(3)&(4).

In lieu of a general verdict, the trial court may also decide to submit special

interrogatories to the jury in accordance with Tenn. R. Civ. P. 49. In that

circumstance, the trial court’s instructions must fairly set out the elements of each of

the plaintiff’s common-lawand statutory causes of action. The special interrogatories

must be consistent 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 damages, it should state the amount of the damages and should also

identify each of the causes of action for which the plaintiff has carried its burden of

proof. The jury should also be asked (1) whether the acts giving rise to the

compensatory damages were knowing and willful or (2) whether the defendant acted

intentionally, fraudulently, maliciously, or recklessly.

If the jury answers “no” to both of these questions, then the plaintiff is not

entitled to exemplary damages under any theory. If the jury answers “yes” to the

former and “no” to the latter, then the trial court should proceed to consider whether

the compensatory damages should be trebled under the Tennessee Consumer

Protection Act if, and only if, the jury has also determined that the defendant has

violated the Tennessee Consumer Protection Act but not any of the other commonlaw claims. If the jury answers “no” to the former question and “yes” to the latter,

the trial court should proceed with the hearing on punitive damages if, and only if,

the jury has determined that the plaintiff has carried its burden of proof on any of its

common-law claims warranting punitive damages, but not on its claim under the

Tennessee Consumer Protection Act. If the jury answers “yes” to both questions and

has determined that the plaintiff has carried its burden of proof with regard to its

Tennessee Consumer Protection Act claim and at least one of its common-law claims,

then the trial court should require the plaintiff to decide to pursue either punitive

damages or treble damages under the Tennessee Consumer Protection Act. 

III.

As a final matter, the lessors argue that discrepancies in the designation of the

parties in the special verdict forms and the judgment require that the judgment be

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

1991), they assert that the verdict is too uncertain to permit the entry of a judgment

and that the judgment does not conform to the verdict. While the discrepancies in the

special verdict form and the judgment are unfortunate, we find that they did not

prevent the trial court from intelligently rendering a judgment in the case consistent

with the jury’s verdict.

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

binding on 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). 

14Mr. Sender was the president and principal stockholder of National Building Corporation.

Corporations act at the direction of their officers and through their officers and employees. See

Nelson v. Martin, 958 S.W.2d 643, 650 (Tenn. 1997); Allied Sound, Inc. v. Neely, 909 S.W.2d at

821. The record contains no evidence that Mr. Sender was not acting on behalf of both the

construction company and the partnership in his dealings with Ms. Dalton.

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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 operate her gallery, boutique, and

nightclub. The defendants included Mr. Sender, the partnership consisting of Mr.

Sender and others 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 construction manager for the Cummins Station project. 

From the outset of the litigation, all parties recognized the strong unity of

interest among the parties plaintiff on one hand and the parties defendant on the

other. Virtually all the claims for relief in the complaint referred to the “plaintiffs”

collectively and to the “defendants” collectively. Likewise, the answer and

counterclaim were filed on behalf of the “defendants” collectively, and the factual

averments in both the answer and the counterclaim referred collectively to the

“plaintiffs” and the “defendants.” The pleadings contain no indication that any single

plaintiff or defendant took a position inconsistent with its counterparts or that any

defendant undertook to pass liability on to one of the other defendants.

The parties maintained their unity of interest throughout the discovery process,

the pretrial proceedings, and the trial. Neither party presented evidence that the

plaintiffs or the defendants were not acting in concert. Ms. Dalton was the plaintiffs’

central witness, and Mr. Sender was the only defendant participating in the trial. The

evidence makes clear that Mr. Sender was not just representing himself but was also

representing the interests of the partnership13 and National Building Corporation.14

The lessors’ proposed instructions and proposed special verdict form also

referred to the “plaintiffs” and the “defendants” collectively. In addition, the opening

and closing statements of the lawyers for both parties contained repeated references
15These questions include the first and second questions on the special verdict form which

state “[w]e find for the plaintiff against the defendant and fix compensatory damages at _____”

(emphasis added) and that “[w]e find for the defendant against the plaintiff and fix the compensatory

damages at _____” (emphasis added).

16The 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).

17The fifth question on the special verdict form asked: “If you find that the plaintiffs are

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).

18The question regarding punitive damages read, in part, as follows: “You, the jury, have

found that the plaintiffs are entitled to punitive damages. It is now your duty to fix the amount of

damages.” (emphasis added).

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to the “plaintiffs” and the “defendants.” The trial court’s instructions were likewise

couched in terms of “plaintiffs” and “defendants.” Inexplicably, both versions of the

special verdict form prepared by the trial court did not contain consistent,

complementary references to the remedies. In two of the four questions referring to

the parties, the parties are referred to in the singular rather than the plural.15 One

question contained party designations 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 the parties defendant or with the special verdict form. When the jury

announced its verdict regarding compensatory damages, neither party requested

clarifications with regard to whom or against whom the damages had been awarded.

Likewise, neither party took issue with the special interrogatory on punitive

damages,18 and when the jury announced that it had awarded the “plaintiffs”

$1,100,000 in punitive damages, neither party requested clarification concerning

against whom or in whose favor these damages had been awarded.

Thereafter, the trial court entered a judgment prepared by the lessees’ lawyer

that recited the jury’s answers on the two special verdict forms and that ordered “that

the plaintiffs have and recover of the defendants judgment in the amount of SeventyFive Thousand Dollars ($75,000.00) compensatory damages and One Million One

Hundred Thousand Dollars ($1,100,000.00) punitive damages.” (emphasis added).

Notwithstanding the use of the preceding plural designations of the “plaintiffs” and

the “defendants,” the judgment concluded by taxing the costs against the “defendant.”
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The lessors raised the issue of the discrepancies caused by the use of the

singular and plural references in the two verdict forms and the judgment for the first

time in their motion for new trial. After noting that the case had been tried on the

basis that there was a unity of interest between the parties plaintiff and the parties

defendant, the trial court declined to grant a new trial because the lessors had not

raised the issue at the stage of the proceeding where the ambiguity could easily have

been clarified and corrected if need be.

B.

We have determined that the lessors have waived their opportunity to take

issue with the designations of the parties. Like the lessees, the lessors tried this case

on the basis that there was a unity of interest among the parties plaintiff and a similar

unity of interest among the parties defendant. Unlike the other ambiguity in the

jury’s compensatory damage verdict that was raised and corrected while the jury was

still empaneled, the lessors 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 obligation to assist the trial court at all stages of litigation and cannot seek

relief on appeal from errors that were, in part, of their own making. See Tenn. R.

App. P. 36(a); Henry County Bd. of Educ. v. Burton, 538 S.W.2d 394, 397 (Tenn.

1976); Gilson v. Gillia, 45 Tenn. App. 193, 217, 321 S.W.2d 855, 866 (1958). 

The lessors insist, however, that the ambiguous designation of the parties on

the verdict forms are so fundamentally prejudicial that they should be excused from

their obligation to alert the trial court in a timely manner so that they can be

corrected. While we do not make light of the obvious shortcomings of the special

verdict forms used in this case, we have concluded that the lessors overstate the

prejudicial significance of the problem.

A trial court may enter a judgment on a jury verdict, even when the verdict’s

form is defective, as long as the verdict permits the trial court to intelligently pass

judgment according to the jury’s decision. See Arcata Graphics Co. v. Heidelberg

Harris, Inc., 874 S.W.2d at 27; Tennessee Cent. Ry. v. Scarbrough, 9 Tenn. App. 295,

299 (1928). However, the lessors insist that the trial court could not intelligently pass

judgment on the verdict because the answers to the special interrogatories were too
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uncertain to enable the trial court to determine against whom the damages were

awarded. See Whittemore v. Classen, 808 S.W.2d at 458-59. 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 the process, pleadings, and

proceedings to ascertain the parties against whom the jury has rendered the verdict.

See Wilson v. Nance, 30 Tenn. (11 Hum.) 189, 191-92 (1850). Despite the sloppy

drafting of the special interrogatories, the pleadings and the overwhelming weight of

the evidence permitted the trial court to conclude that the jury intended to return a

verdict in favor of all plaintiffs against all defendants. Accordingly, the trial court

could properly enter judgment for all plaintiffs against all defendants. 

IV.

We affirm the portion of the judgment awarding all plaintiffs $75,000 in

compensatory damages against all defendants, andwe reverse the $500,000 judgment

for punitive damages against all defendants. We remand the case to enable the trial

court to determine whether the plaintiffs’ compensatory damages should be trebled

under the standards contained in Tenn. Code Ann. § 47-18-109(a)(3)&(4) and for any

other proceedings that may be necessary. We tax the costs of this appeal in equal

proportions to Paulette and Stuart Dalton, jointly 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