1 

# FILED
January 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE EASTERN SECTION AT KNOXVILLE

LJB, INC., d/b/a LAUREL WOOD ) FARM, a Tenne ssee Corporation, ) HAMILTON CHANCERY and LAWRENCE J. BANNIER, ) ) Plaintiffs/Appellees ) NO. 03A01-9706-C H-00243 ) v. ) HON. HOWELL N. PE OPLES, ) Chancellor BUFORD L. CRAIG, ) GLEN L. CRAIG, ) SOUTHERN GARDEN ) DESIGNS, INC., ) GLEN L. CR

AIG, d/b/a ) BUFORD L. CRAIG GENERAL ) CONTRACTO

RS, INC., a

nd ) SOUTHERN GARDEN D ESIGNS, ) INC., d/b/a ) NORTH RIVER NURSERY, ) AFFIRMED ) AS MODIFIED Defendants/Appel

lants ) AND REMANDED
W. Gerald Tidw

ell, Jr., Chatt

anooga, for the Ap

pellants. H. Owen Maddux,

Chattanooga, for t

he Appellees.


### O P I N IO N

INMAN, Senio

r Judge This is an action for dama ges for breach of c

ontract involving the

sale of the assets of a corp

oration do ing bu siness as North Rive r Nursery in Chattanooga. The selling price was $370,000.00, t o be paid $305,000.00 cash and $65,000.00 in seven (7) promissory notes, each of which provides “That all or a subst

antial portion of the debt evidenced here by shall be paid by work t

o be performed . .

. . . as set out in a letter . . . ”2

which recited that the obligor would rough clear 45 acres for $500.00 per acre, windrowthe brush for burning, disc clear land, and broadcast seed. Sincethe debt would thereby be redu ced by only $22,5 00.0 0, the parties later agreed that the def

endants would earn additiona l credits against the

$65,000.00 in promissory notes by const ructing a barn on the p

remises for cost pl

us 15 percent. In October 1992 the def

endants claimed tha

t the value of

their work in clearingthe land and

building the barn exceeded t heir $65,000.00 debt and quit the project. Th e plaintiff thereupon

employed the same sub

contractors previo

usly employed by the defendants and finished the barn. One year later, this action

was filed. The prolix comp laint alleges, inter alia , that the plaintiffs demanded that the defendants finis

h the clearing

work. They also alleged that som e of the clearingwork was ‘inept,’ because the brush was not wi

ndrowed for

burning. The critiquing allegations were denied by the defendants, who pl

eaded that the work performed by them exceeded the amount of the notes. The land clearing was descr ibed as pastures A, B and C. It is not disputed that the plaintiff e xpended, after the

defendants left the

job, $2,000.00 to finish the clearing

of pasture A and $7, 545.00 to fini sh the clear ing of pasture B. The trial court acce

pted the testimony

of an expert witne ss, Tom Mills,

as to the cost t

o complete

pasture A and pastur

e B and what it would cost to completepasture C, which Mills estimated at $17,360.00, and determined that the plaintiffs were entitled to recover $65,000.00, evidenced by the notes plus interest a t ten percent per an

num since November

1, 1992; damages for

the clearingof the land of $26, 900.00 , (pasture A, $2,000.00; pasture B,1 Had the court cal culated corr ectly , the to

tal woul d have been $32,735. 58: $91,905 damages less $51,169.42 cr edits. 3 $7,545.00; and pasture C, $17, 360.00), attorne ys’ fees in the amount of $15,000.00, and discretionary costs of $993.35. The total recovery was $91,905.00, exclusi

ve of interest, at

torneys’ fees, a

nd costs. The Chancellor then allowed the defendants credits for the use of their scaffolding, $1,944.00; $450.00 fo r the use of

a generator; for clearing the land

a total of $15,930.00 (

pasture A, $4,000. 00; pasture B, $325 0.00 ; pasture C, $8,680.00); and labor, equipme nt, and supplies on the barn,

$40,845.42; for a total credit of $59,169.42, and en te red judgment for $32, 269.42 1 plus $15,000.00 attorneys ’ fees and costs. The appellant presents t wo issues for revie

w, which we re produce verbatim: ISSUES I. Didthe court err in allow ing damages in the am ount of $17,360.00

for completion of

pasture C, which work had not been done at the time of

trial, constituting future damages and damages which place the plaintiff in a better positionthan he would have been had the contrac

t been fulfilled? II. Did the cour

t err in allowing da

mages for failure

to pay a promissory note including the am ount left owing, inte rest and attorney’s fees, and als o allowing damages f or what essentiall

y appears to be n egligence for work not completed on the pasture land? Our review of the

findings o f fact made by the t rial court isde novo upon the record of the trial court, accompanied by a presumption of the correctness of the fi nding, unless the prep onderance of the ev

idence is otherwise. T ENN . R. A PP . P., R ULE 13(d).

I2 The technical record contains 105 pages, mos t of which are unnecessa ry. It does not, however, include t he judgment, the pr ovisions o

f which we extr

apolate fr

om three (3) memorandum opinions and the brief s. 4 We think both issu es must be answered in the affirmative. T he Chancellor

found that for clea

ring a portion of the

land and building the elaborate barn the defendan ts ea rned a credit of $59, 169.42 against their $65,000.00 debt. 2 By letter dated June

1, 1991 the defendant

s agreed to:

“ . . . provide

sufficient equipment to clear 45 acres of treed land for a fee of $500. 00 per a cre. This servi ce shall include windrowing

of brush, discing cleared land and broadcasting seed . . .” Two months later, the series of promissory notes were execut ed, to which we have alluded. It is significant to a resolution of this case that at the behes tof the plaintiff, the defendants shift ed the focus of this w

ork to th e construction

of the elaborate ba

rn. Under the agr

eement s, as found by the Chanc ellor, and considered in pari materia , the defendants ow ed on l y $65,000.00. The barn work, valued at $40,845.42, diminish ed the debt, leaving only $24,154.58 that could properl y b e claimed. This c onclusion leads to the issue of the val ue of the land clearing se rvices performed

by the defendants and whether this value should be reduce d by an y amount of damages for failure to windrow or failure to clear. The appellants argue tha t they “ow ed the appellee valu e, not the completion

of a particular pa

sture or bui l ding.” We think this a rgument is well-taken. The judgment as rendered places the plaintiff in a be tter position than if the contract(s) had been fully and stri ctly performed. See, Action Ads, Inc. v. William B. Tanner Co., Inc., 592 S.W.2d 572 (T enn. App. 1979). The plaintiff is not entitled to multi

ple damages for

the same wrong. The

re is no5

evidence that the

clearing work per

formed by the defen

dants lacked value, or

was unnecessary; the co

mplaint essentially i s that the clearing a nd windrowing were not complete

d. Because the de

fendants were w

orking subject to a

total debt of $65,000.00, the i

ntervention

of the barn work must be

taken into account. The Chancellor found tha t the work done

by the defendants on pa

rcels A, B and C had a total value of $15,930.00, that the defendants a

lso used their scaffolding

($1,944.00) and gen

erator ($450.00),

and that the va

lue of their work on the barn was $40, 845.42, aggregatin g a reasonabl e v alue of $59,169.42

which, when off

set from the aggre

gate of the prom

is sory notes [$65,000.00], lea

ves $5,830.58 owing. We find the evidence preponderates agai nst the finding that the defendants are liable for an y amounts paid, or to b

e paid, by the plainti

ffs to complete the clearing and

windrowing of pastu

res A, B and

C and bring them up to the plaintiffs’ desired standards, since t he defendants have pa id their $65,000.00 debt to the plaintiffs except f or the above-mention

ed $5,830.58. Intere st at 10 percent per annum b eginning November 1,

1992 on $5,930.58 is award

ed. Each of the promissory notes provides for reasonable attorney fees. The appellant argues that the amou

ntawardedby the court is exces sive and beyond the preponderance of the evidence. We agree. We have examined the pr int-out of the servic

es performed by the attorney for

the plaintiff, and we are unable to determine what

portion of the fee of $15,000.00 was a

llowed for the cla

im of damages; obvious

ly, a fee of $15,000.00

to recover a balanc

e on thenotes of less than $6, 000.00 cannot be justified. The rectificat

ion of this is sue require s that the award of fees be6

vacated, and that the ca s e be remanded for a determination of the proper amount. The judgment is modified and vac ated acco rdingly and the case i s remanded. Costs are assessed to the appellee.

__________________________ William H. Inma

n, Senior Judge CONCUR:

______________________________ Houston M. Goddard, Presiding Judge

__________________________________ _ Herschel P. Fr

anks, Judge