# FILED
March 18, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE WESTERN SECTION

PARNELL WEBB, ) ) Plaintiff/Appellant ) Lauderdale Circuit No. 4689 ) v. ) ) NED AND MARY ELLEN POYNTER, ) Appeal No. 02A01-9707-CV-00168 d/b/a RIVER ROAD DODGE, INC., ) ) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT OF L AUDERDALE COUNTY AT RIPLEY, TENNESSEE

THE HONORABLE JOSEPH H. WALKER II I, JUDGE
For the Plaintiff/Appellant : For the Defendants/Appellees : Rebecca S. Mills Herman L. Reviere Ripley, Tennessee Ripley, Tennessee
AFFIRMED

HOLLY KIRBY L

ILLARD, JUDGE

CONCUR: ALAN E. HI GHERS, J. DAVID R. FARMER, J.OPINION

This is a breach of contract case. The plaintiff employee asserts a breach of contract by the defendant employer in the withholding of a portion of the e mployee’s salary for a deferred compensation plan. The case w as appealed fro

m General Session

s C ou rt to Circuit Court. The Circuit Court awarded a

judgment to the plain

tiff employee in th

e amo unt of $10,000 as well as prejudgment

interest of $1,666. Both parties appealed, and the plaintiff sought to recover more than was set forth in the General Sessions civil warrant. We affirm. Plaintiff /Appellant Parnell Web b (“Webb”) worked for Defendants/Appellees Ned and Mary Ellen Poynter d/b/a River Road Dodge, Inc. (“Poynter”) for almost twenty-nine years. In 1988, Webb gave some informational materials to Mary Ellen Poynter that explained a deferred compensation plan . Webb requeste d that Ms. Poynter wi

thhold his commissions

and a part of his salary to contribute to the

plan for his retir

ement. Over the f

ollowing seven yea

rs, Poynter withhe

ld
a total of $56,622.37 from Webb’s paycheck. Upon Webb’s termination in 1994, Poynter attempted to give Webb a chec

k for $26,966.14, r

epresenting the m

oney withheld in

the deferred

compensation plan minus federal taxes, social security and other deductions. Webb refused this check. Poynter issued another check to Webb for this amount, which was also refused. After Poynter gave Webb
a third check for this amount, Webb cashed it because of financial need, but noted that the amount was in dispute. Thereafter, Webb filed two causes of action in General Sessions Court, see

king $10,000 in damages in each case. The first was an action for his last month’s salary an d the second was an action for breach of contract arising out of the deferred compensation plan. In the second a ction, W ebb ass erted breach of contract based on Poynter’s failure to invest his funds in a tax deferred account, contrary to the agreement between Webb and Poynter. Webb conten ded that P oynter’s payment to him of his entire withholding in a lump s um in 1994 created

serious tax conse

quences, includ ing a $15,854.00 fede ral tax obligation a

nd a $10,308.20 obli

gation to the Social

Securit y Administration. In addition, the lum p sum payment pushed Webb into a higher tax bracket. Webb contended

that the trial court should establish a resulting trust in his favor, but failed to explain what property would constitute the trust res since Poynter did not retain any of Webb’s funds. Th e General Sessions Court dismissed both causes of action.2

Webb appeal ed the decision of the General Sessions Court to the Circuit Court an d consolidated the two actions. Webb did not amend the General Sessions complaint to increase

the amount of damages claimed. After a bench trial, the Circuit Court found for Poynter on the s alary cause of action after determining that the salary had been paid. On the breach of contract claim, the Circuit Court found in favor of Webb, f

inding that the emplo

yer owed a duty

to Webb to invest

the withheld funds in a tax deferred account. The trial court recognized that Tennessee Code Annotated § 16-15-729 allows parties to freely amend pleadings in cases appealed from General Sessions Court. Additionally, the trial court cited Ware v. Meharry Medical College , 898 S.W.2d 181, 186 (Tenn. 1995), as allowing amendments

to the damages sought without regard to thejurisdictional limits of General Sessions Court. However, the trial court limited Webb’s damages to $10,000 because Webb failed to amend the ad damnum t

o his c omplaint after the appeal to Circuit Court. Both parties now appeal the judgment of the Circu it Court on the breach of contract claim arising out of the deferred compensation plan. The parties raise the following issues on appeal: (1) Whether the evidence supports the trial court’s finding th

at there was a

contract between the parties requiring Poynter to set up a deferred compensation plan, and (2) Whe ther Webb was limi

ted to the amount of

damages reques

ted in his compla int because he failed to amend his pleadings on appeal from General Sessions Cou rt t o Circuit Court. The standard we appl

y in reviewing th

e trial co urt’s factual finding that a contract existed is de novo , with a presumption of correctness of the factual findings, unless the preponderance o f evide nce is o therwise. See Tenn. R. App. P. 13(d). The applicable standard of review for the question of law involved in the damages issue is de novo with no presumption of correctness for the trial court's findings. See Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). The first issue on appeal is whether the evidence preponde rat es against the trial court’s f ind ing that there was a contract between the parties for the purpose of setting up a deferr ed compensation plan. Poynter argues that there was no mutual assent and that Poynter did not receive adequate consideration. The trial court found for Webb on this issue, concluding that Poynter owed3

Webb a duty toinvest the funds in the company’s e xisting retiremen

t plans or, in the al

ternative, to develop a separate plan for Webb. In this case, mutual assent was evidenced by Poynter’s actions in withholding over $55,000 of Webb’s compensation over the seven-year period. The parties clearly agree d to this cour se of action and Mary Ellen Poynter testified that she knew that Webb’s purpose was to defer money for ret irement. The record also included evidenc

e that Poynter rec

eived adequate

consideratio

n fo r withholding the monies. Mary Ellen Poynter testified that the business retained the money and had the use of it for the period in

question. Webb also presented expert testimony to this effect. Under all of these circums

tances, the record includes sufficient evidence to support the trial court’s finding of mutual assent and a

dequate consi

deration. Therefore, the

trial court’s dec

ision, finding that a contract existed between the parties, is affirmed. Webb also seeks to have the Court establish a resulting trust in his favor. However, Webb’s recovery for breach of c

ontract preclud

es this relief. In Eslick v. Friedman , 235 S.W.2d 808, 810 (Tenn. 1951), the plaintiff sought enforcement of an oral contract in which the pa rties agreed that the decedent would w

ill the plaintiff pr

operty in return f

or se r vices plaintiff r

endered. He als

o soughtto have a resulting trust established. Id. at 810-11. The court found that theplaintiff was not entitled to a resulting trust “[s]ince complainant has an adequate re medy in a court of l

aw to recover
a fai r and reasonable sum as compensation for services rendered.” Id. at 814. Likewise, Webb’ s recovery at law under bre ach of contrac

t precludes him from re covering under a resulting trust theory. The decision of the trial court is affirmed on this issue. Webb next asserts that the Circuit Court erred in limiting his recovery to the $10,000 amount sued for in General Sessions Court . Beca use Webb failed t o amend the origina

l warrant filed in General Sessions Court, the Circuit Court limited Webb’s recove

ry to the original amount for which he sued. Appeals to Circuit Court fro m G e neral Sessions Court are de novo
. See Tenn. Code Ann. § 16-15-729 (Supp. 1998). In addition, the Circu it Court is to allow just

and proper amen

dments to the original warrant. See id. The Tennessee Su preme Court has held th at the parties should be allowedto amend their pleadings “without regard to the general sessions court’s monetary limits.” Ware v. Meharry Med. College , 898 S.W.2d 181, 186 (Te nn. 1995); Starr Printing Co., Inc. v. Hooks , No. 02A01-9408CV-00192, 1995 WL 270933, at *1 (Tenn. App. May 4, 1995). However,1 The relevant por tion of Rule 12.08 re

ads: “Waiver of

Defenses. A par

ty waives all defenses and objections which the party does not present either by motion as hereinbefore provided, or, if th

e party has made n

o motion, in the part

y’s answer or re

ply, or any amendm

ents thereto. . . .” Tenn. R. Civ. P. 12.08. 4 Rule 15.02 of the Ten nessee Rul es of Civil Procedu re disallows post-

verdict amendme

nts to increase
a party’s damages. See Tenn. R. Civ. P. 15.02; see also Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 644 (Tenn. App. 1993). First, Webb asserts that Tennessee Code Annotated § 16-15-729 should be construe

d so as to permit liberal amendment and prohibit dismissal for any informalities. The Tennessee Su

preme Courthas stated that, under § 16-15-729, the parties should be a llowed to amen d “to the fullest extent permitted by the Tenn. R. Civ. P. 15 without re gard tothe general sessions court’s monetary li mits.” Ware , 898 S.W.2d at 186. Nevertheless, Rule 15.02 of the Tennessee Rul es of Civi l Procedure, as discussed above, d oes not permit amendment of the amount sued for after a verdict has already been entered. See Tenn. R. Civ. P. 15.02. Section 16-15-729 m ust be c onstrued in conjunct ion with Rule 15.02 of the Tennessee Rules of Civil Procedure, in a way that does not nullify the specific prohibition in Rule 15.02. Webb next

argues that his failure to amend the original General Sessions warrant should not limit his damages beca

use Poynter had notice of the large damages sought through interrogatories and documen ts and ev idence presented at trial without objection. Webb further asserts that, by failing to file a

responsive pleading, Poynter waived any objection to the increased damages under Rule 12.08 of the TennesseeRules of Civil Procedure. 1 Webb appears to rely on the portion of Rule 15.02 of the Tennessee Rules of Civil Procedure that provides that issues notraised by the pleadings but “tried by express or implied consent of the pa

rties . . . shall be tr

eated in all

respects as if they had been raised in the

pleadings.” This p

ortion of Rule 15.02

provides that “[i

]n effect . . . th

e parties may, by express

con sent, or by the introduction of evidence without objection , amend the pleadings at will." 3 M OORE , F EDERAL P RACTICE , § 15.13(2), at 168-170 (2d ed. 1978) (emphasis added). However, Poynter’s failure to object to evidence of damages above $10,000 does not allow Webb to avoid the specific prohibition in Rule 15.02: “Provided, however, amendment after verdict
so as to increase th

e amount sued for i

n the action shall

not be permitted.” Tenn. R. Civ. P. 15.02. Finally, Webb argues that the consolidation of the two causes of action results in his having
a limit of $20,000 rather than $10,000. However, “ ‘an order of consolidation simply has no other5

effect than to hear

the cases thus consolidated at th e same time, but tha

t the issues remain

precisely
on the pleadings as they were before, and between the same parties, and are to be determined exactly
as if the cases had been heard separately.’ ” Chitwo od v. M yers , 443 S.W.2d 827, 830-31 (Tenn. App. 1969) (quoting Smith v. Parker , 373 S.W.2d 205, 210 (Tenn. 1963)). Thetrial court decided Webb’s first cause of action for his September

salary in favor of Poynter. The $10,000 in damages soughtin that case does n

ot apply to Webb’s second claim, for breach of contract. Thus, the decision of the trial court, limiting Webb’s damages to those sought in his complaint, is affirmed. In sum, we affirm the trial co urt’s finding that Poynter breached the contract that existed betweenWebb and Poynter o bligating Poynter to

set up a deferre

d compensa

tion plan. Webb’s recovery for breach of contract provides him with an adequate remedy at law and precludes recovery under a resulting trust

theory. Webb’s damages are limited under Rule 15.02 of the Tennessee Rules of Civil Procedure to the $10,000 amount sued for because he did not amend the complaint before entry of the verdict. The decision of the tr

ial court is affir

med. Costs are asse

ssed against the Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.
CONCUR: ALAN E. HIGHERS, J.
DAVID R. FARMER, J.