# FILED
June 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT NASHVILLE
OLAN ENGLAND and ) ROBERT WHITLEY, ) ) Plaintiffs/Appellees, ) Giles Circuit No. 2142 ) VS. ) Appeal No . 01A01-9705-CV- 00204 ) SELECT SIRES, INC., P. D. LIGGETT, ) and TENNESSEE ARTIFICIAL ) BREEDING ASSOCIATION, ) ) Defendants/Appellants. )
APPEAL FROM

THE CIRCUI T COURT OF GI LES COUNTY AT PULASKI, TENNESSEE THE HONORABLE WILLIAM B. CAIN, JUDGE

BILLY C. JACK Columbia, Tennessee DOUGLAS E. JON ES Nashville, Tennessee Attorneys for Appellant Tenness ee Artificial Breeding As

sociation
R. STEPHEN DOUGHTY WEED, HUBBARD, BERRY & DOUGHTY Nashville, Tennessee WALTER W. BUSSART BUSSART & M EDLEY Lewisburg, Tennessee Attorney for Appellees

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J.1 Ligge tt was volun tarily dis mis sed from this a ction just p rior to the c om me nce me nt of tr ial.
2 Tenn essee Rule of A ppellate P rocedu re 36(a) states:

Nothing in thi s rule shal l be constr ued as req ui ring rel ief be grant ed to a p arty responsibl e for an error or who fail ed to take whate ver acti on wa s reasonably available to prevent or nullify the harmful effect of an error. Furthermore, Rule 3 (e) provi des:

[I]n all cases t ried by a jury, no issue present ed for revi ew shall be predicatedupon err or in the admission or exclusion of evidence, jury instruct ions granted or refused, misconduct of jur ors, part ies or counsel, or otheraction c omm itted or occurri ng during t he trial of the case, or other ground upon which a new trial is s oug ht, un less the s am e wa s sp ecific ally stated i n a motion for a new trial; otherwise such issues wil l be trea ted as waived. In its mo tion fo r a ne w trial, d efen dan t did no t raise the is sue of os tens ible agency, nor did it raise the issue of W hitley’s fai lure to produce cert ain documents referr ed to at t rial.These failures constitute waivers of the issue s on ap peal. See Mason v. Tennessee Farmers Mut.Ins. Co. , 640 S.W.2d 561 (Tenn. Ct. App. 1982). 2 One of t he defendants, Tennessee Artificial Br eeding Association (“TABA ”), has appealed from a jury verdict in favor of plaintiffs, Olan England (“Englan d”), in the amount of $77,840.54, and Robert Whitley (“Whitley”) i n the amount of $183,362, which the trial court reduced to $120, 000 vi a a rem ittitur. TABA further appeals the jury verdict finding
an ostensib le agency relationshi p between TABA and artificial insemination tec hnician P.D

. Liggett (“Liggett”). 1
Although the parties raise seven separate issues, 2 we find the ess e ntial issues to be the following:

I. Whether England’s evidenc e as to damages was speculative; whether such evidence of lost profits constituted a sufficient basis for the jury’s computation of da mages. II. Whether W hitley’s evidence as to damages w as of such a speculative nature that a j ury had no basis for its v erdict. III. Whether the trial court erred in dismi ssing the cause of action by plaintiffs against TABA unde r the Tennessee Consumer Protection Act. IV. Wh ether the trial court erred in o rdering a new tri al as to Whitley unless he accepted a remittitur

.
Selec t Sires, Inc. is a national federated cooperative engag ed in the collection and distribution of semen from bulls whose off spring have a record of high milk production.3

TABA is an association of dairymen who utilize artif icial bre eding in the managementof their dairy herds. TABA purchases semen from Select Sires, Inc., and has the name "Select Sires, Inc.," printed on a breeding receipt which it furnishes to t

echnicians who purchase semen from TABA.

Giles County Artificial B reeding A ssociation (“GABA”) i s a former purchaser of
semen and employer

of Liggett, but it ceased operation in 1984 prior to the inception of this controve rsy.
England and Whitley are dairymen whose catt le have been artificially impr egnated byLiggett for a certain per iod of time. They are members of Tennessee Artificial Breeding Association.
Liggett was formerl

y a salari ed emp loye e of GABA. Beginning in 1979, he continued his work of insemination "on his own," purchasing

semen from defendant and others, selling it to

cattle owners, and admini stering it to their c attle.

Select Sires, Inc., sold semen to defendant in individual i njections called "straw s." Each "straw" bore the name of the b ull from which the semen w as obtained.

TABA’s principal customers w ere "technician s" who were trained to artificially impregnate cattle and who, in turn, sold the semen at a profit to the owners of cows which were impregnated by the technician.

TABA furn ished to technicians various promot ional paraphernalia bearing its imprint. It al so furnished to technicians, i ncluding Liggett, a supply of printed forms enti tle d "breeding receipt."

The breeding receipts w ere printed for

TABA at its expense and furnishe d in blank to the technicians to be filled in by them and deliv ered to their customers. Certain details4

of th e receipt are material to this appeal. At the top of the receipt in large prin t are th e words, "Select Sires, Inc." Select Sires, Inc. did not authorize the inclusion of its name in the receipt which wa

s composed and printed at the dir ection and expense of TABA. TABA used "Select Sires" as a trade name in its semen distribution bu siness.

The receipt has a blank space for the name and number of the cow, the name and number of the bull, and the fee pa id by the own er. In the lower part of the receipt is the following: I hereby certify that I am duly authorized by the above named business to issue this receipt in its name w hich is given as evidence of service rendered and al so a certificate of da te of service and identity of semen used for service o f animal identified herein.

_______________________ ____________ (Inseminator signature) Tech. No. Tennessee Artificial Breeding Association

This form of receipt was u nifo rmly filled in and deliv ered to both England and Whitley each time Liggett inseminated on e of their cows.
Ligge tt p urchased semen from defendant in certain quantities and maintained a reservoir of it for use as required by his customers. As reports w ere published on the "standing" or desirability of se men for various bulls, the demands of customers changed, and Ligge

tt was left

with a surplus of semen that was no longer desired by his customers. In order to avoid the loss of his investment in the semen which was no longer desired, he began to substitute the unw anted semen for the semen ordered by his customers.

In 1987, it came to light that Liggett was defra uding dai ry farmers by accepti ng paymentfor higher priced semen while inseminating their cattle with a lower priced semen. Both England and Whitley fell victi m to this fraud perpetrated by Liggett.

On November 13, 1987, TABA filed a suit against Liggett seeking to enjoin him from representing t hat h e had a business relationshi p with defendant, from using br eeding5

rec eipts of defendant, and from destroying his records of inseminations. TABA further sued Liggett to

recover damages that

resulted from his fraudulent conduct. The affidavit of the general manager of TABA filed in that case states in part: On Wednesday, November 11, 1987, the Executive C ommittee met at our central office and the resulting action by the Board was to te rminate our relat ionship wi th Mr. Ligge tt, eff ective immediately. Mr. Liggett still has receipt books an d p romotional material bearing the Association's name. It is m y conce rn that he not continue to use these materials from this day forward in that

he is no longer a represent ative of the Association. .

. TABA alleged, among o ther things, tha t Ligge tt’s act ivities constituted v iolations of the Tennessee Consumer Protection Act, and that as a result of Liggett’s actions, TABA had suffered damage to its reputation i n Tennessee.

Around that same time, a letter was sent to all members of TABA on the letterhead of TABA's cou nsel, signed by the general manager o f TABA and st ating:

Please be advised that as of Novembe r 11 , 1987, Mr. P.D. Liggett's business relationship w ith Tenne s see Artificial Breeding Association and Tennessee Select S i res, Inc. was terminated. . .
Thereafter, on March 12, 1988, Englan d and Whitley filed a complaint against Liggett, TABA, and Select Sires. The compl aint alleged, inter alia , that Liggett was acti ng as an agent of TABA when he fraudulently sold less e xpensive and inferior bull semen to England and Whitley. The second cause of action set forth in the complaint was premised
on the Tennessee Consumer Protection Act. Specif ically , England and Whitley alleged that defendants had engaged in unfair or deceptive trade acts or practices affecting the conduct of trade or commerce in viol ation of the Act. TABA filed an answ er denying that Liggett was acting as

its agent and denying that i t had violated the Tennessee Cons umer Protection Act.

Select Sires w

as dismi ssed pr

ior to t rial on

order o f t he court, an d Liggett was voluntarilydismissed as a defendant by the p lainti ff s just prior to the commencement of6

trial.

At the conclusion of the proof in this matter, TABA moved for a directed verdict and specifically moved for a directed verdict on the ca us e of action under the Tennessee Consumer

Protection Act. The court g ranted a directed verdi ct with regard to the Tennessee Consumer Protection Act claim.

The case was presented to the jury which returned a verdict for both plainti ffs against TABA, awarding Englan d $77,840.54 with prejudgment int erest at a rate of 8% since November 11, 1987, and awar ding Whitley $183,362.00 with no prej udgment interest. After entry of the judgment by the court, TABA filed a Motion for a New Trial, Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict. This motion did not raise the issue

of liabi lity b ut ques

tioned o nly the

jury’ s awar

d of damag es to pl aintiffs and the admissibility of cert ain expert testimony r

egarding damages. Eng land and Whitley filed Plaintiffs’ Motion for the Court to Reco nsider its Ruling on the Consumer Protection Act. The court entered an order on Ja nuary 31, 1997, denying TABA’s motion as to England in all respects

and denying the motion by plaintiffs to reconsider the Tenness ee Consumer

Protection Act ruling. In that order, the court did grant a new trial as to Whitley unless he accepted a remittitur of all the verdict in excess of $120,000. Whitley accepted the remittitur under protes t. TABA appealed to this Court.

As mentioned supra , TABA did not raise the issue of liability in its motion for a new trial as mandated by Tenn. R. App. P. 3(e). However, we feel compelled to digress for a moment to discuss liabilit y.
The following issue w

as submitted to the jury w ith the response indicated: Is Tennessee Artificial Breeding As sociation liable

to plai ntiff, Olan England? Yes Is Tennessee Artificial Breedi ng Association liable to plainti ff, Robert Whitley? Yes7

This general finding of liabi lity must be sustained if the record contai ns material evidence of any relationship or ac tions alleged in the compla int which would impose liability upon the defendant for the wrongs alleged in the comp laint. Tenn. R. App. P. 13(d).

There is no evidence that TABA ever expressly employed or authorized Liggett to act as its agent in respect to the sale or administration of artificial insemination. T here is evidence that L iggett was expec ted to solicit memberships i n the association, but the wrongs alleged by plaintiff were not committed in soliciting memberships. The testimony of defend ant's general ma nager contains t he following:

A. Mr. Liggett w

as out there with bull books and receipts, and we certainly knew

that he had them. Q. And show

ing tha t he was authori zed to a

ct on yo ur behalf, right? Say it, M r. Riley. A. It's written on the receipt. The affidavit of the same general manage r, quoted above, stated: [H]e is no longer a repr esentative of the association.
By nat ural and rational implication, the language in the affidavit i llustrates that Liggett was once a r

epresentative of TABA.

A pr incipa l is bound by the acts of his agent within his apparent or ostensible authority. McCoy v. Willis , 177 Tenn. 36, 145 S.W .2d 1020 (1940).

The admitted act of fu rnishi ng Lig gett with the f orms of r

eceipt qu oted above, is sufficient material evidence that Liggett was author ized by defendant tocertify on behalf of defendant the authenticity of the semen utilized in the artificial insemination. The falsity of this certification is the foundation of the present suit.

The admissions of the defendant, quoted above, are confirmation of this authority and resultant liability

of defendant.8

Even if an agent's tortious act be outside his express authority, the princip al may be estopped to assert lack of actual author ity. Adams v. Duncan Transf er and Storage , 757 S.W.2d 336 (Tenn. Ct. App. 1988).

A p parentor ostensible authority results when a principal knowingly or negligently permits an agent to exercise certain authority in his behalf or knowingly o r negligently hol ds the agent out as possessing certain authority to ac

t for the principal, notwithstanding such authority was never actually

grante d. O ppenheimer v. Wooline, 4 Tenn.Civ.App. 134 (1834). See also Southern Railway Co. v. Pickle , 1 38 Te nn . 2 38 , 1 97

S. W. 675 (1917) and Am.Jur.2d Agency, §§ 19 an d 80 (1986).

There is material evidence t o support the finding of

the jury that TABA was liable to both England and Whitley for the fraudulent conduc t of Liggett.

EVIDENCE OF ENGLA ND’S DAMA

GES TABA asserts that the evidence of the damages of England are too speculative to support the jury’s v

erdict. We agree.

Dr. Dunham’s testimony concer ning England’s damages w as based upon incomplete information. He testified that he based his damage calculations upon the amount of potential milk production l oss that would have ex isted for each individual that
was sired. However, it was not until the morning of trial that Dr. Dunham wasmade aware that England had been using the s ervices of another breeding technician to sire his cows. This technician was Roger Toombs.

In calculating England’s d amages, Dr. Dunham reviewed England’s Dairy Herd Improvement

Associat ion (“DHIA ”) records “quite exte nsively.” Ho weve r, these DHIA records reveal an inability to identify the sires us

ed to inseminate England’s hei fers. The DHIA records contained a section entitled “P ercent Co ws With Sire ID.” These percentagesrepresent the proportion of animals in the herd for which the sire is recorded9

in the DHIA system. In 1981, 59% of England’s first calf heifers could be identified with theirrespective sires. In 1984, this number dwindl ed to 8%, and thereafter to 5% by 1985. As mention ed above, Dr. Dunham relied heavily upon England’ s sire identification to calculate loss of milkproduction. This sire identification information, how ever, was scant at best and hardly sufficient t o establish reasonable damages

. Along these lines, TABA’s exper t, Dr. Bennett

Cassell, testified

that it would be very difficult to calculate milk producti on loss without knowing the identity of the specific cattle bred with the inferior s

emen. Q. All right, sir, in evaluating and calculating damages in a dairygenetics case, is it correct that you have to studythe individual cows as

opposed to the herd? A. I don’t see a way to

measure the damages other than on an individual cow basis. Yes, you would hav e to study individual cows. Q. S o sir, if you are unable to identify the specific cattle, is i t possible to do these calculations on milk production losses? A. On an individual cow it would be

difficult unless you could refer back to

some piece of evidence that convinced you that t hat cow resulted from a serv ice performed by a known individual. Q. You have to know the sire identity to be able to track it? A. You would need to know the sire identity.

At trial, counsel for TABA had entered into evidence a c hart illustrating th at England paid approximately $9,954 in bree ding fe es to the Giles Artificial Breeding Association (“GABA”) (the name placed on the checks for services provide d by Liggett)and $8,038 to Roger Toombs thereby ev incing that 55% of breeding fees were pai d to GABA and 45% to Toombs. When asked if he could testify what per centage of England’s cow s were bred with the inferior semen, D r. Dunham stated:

Not at this point. All I can do is just guess from the amount that was spent on breeding fees.And I said that breeding fees mayhave been different from one person to the next. I can’t today. Later in Dr. Dunham’s testimony, counsel for England attempted to have D r . Dunham adjust his previous c

alculations by apply

ing the 55% breeding fee figur e.10 Q. If what Mr. Jones just asked you, if you applied t he 5 5 percent figure -- A. Yes, sir. Q. From 16 (exhibit) , would you simply multiply by 55? MR. JONES: Object, Y our Honor, please, that is speculation. MR DOU GHTY: I’m asking how he w ould do the calculation assuming this number is correct, Your Honor. THE COURT: Assuming the chec k numbers to be correct? MR. DOUGHTY: Yes, Your Honor, he already ques ti one d about those check numbers and the doll ar amount. I’m asking him the percentage -- MR. JONE S: Your Honor, please, there is no p roof in the records about Toombs fees. THE COUR T: That is the problem. We don’t know who i s charging whatfees or for that matter what semen. Sustai n the objection.

Where damages are by their nature not susceptible to ex act proof, it is only necessary for the plaintiff to lay a f oundation to enable the jury to make a fair and reasonable assessment of the damages. Pinson Ins. Agency v. Kneal , 800 S.W.2d 486 (Tenn. Ct. App. 1990); Wils on v. Farmer's Chemi cal Assn. , 444 S.W.2d 185 (Tenn. Ct. App. 1985). Neither exact c omputation nor mathematical certainty is required in proof of damages. Provident Life & Acc.'t Ins . Co. v. Globe Indemnity Co. , 156 Ten n. 5 71, 3 S.W.2d 1057 (1928); Cummins v. Brodie , 667 S.W.2d 759 (Tenn. Ct. App. 1 983). Onl y a reasonable degree of certainty is required. Redbud Co-op Corp. v. Clayton , 700 S.W.2d 551(Tenn. Ct. App. 1985).

In light of the scarcity of sire identifications and in light of the testimony of bo th Drs. Dunham and Cassell as to the need for such identifica tions in as sessing lost milk production damages, we are of the opinion that the verdic t is not supported by competent and material evidence in or der to lay

a sufficient foundation to enable the jury to make a fair and reasonable assessment of the da mages.

Accordin gly, we reverse thejudg ment of the trial court affirming the j ury’s award of11

damages to England in the amount of $77,840.54 and prejudgment interest of 8%, and remand the issue to the trial court for further determination.

EVIDENCE OF WHITLEY’ S DAMA GES TABA contends that Whitley’s calculations concerning his damages were premi sed upon unsubstantiated assumptions and specu lat ions. Particularly , TABA insists that Whitley failed to provide a “reasoned analysis” for his damag es. We disagree.

In a case such as this, some level of speculation is to be expected. The fraudulent conduct of Liggett is recogni zed as having been del ibe rate . The repercussions of his actions were only known to the parties of this matter after the fact. Consequent ly, this case is necessarilyfraught with difficulties in determining a measure of damag es. Undoubt edly, however, damages do exist. The fact of damag es is not speculative.Only themanner in which these damagescan be illustratedis subject to any specu lation. But such speculati on is necessitated by the factual scenario in this matter.
Whitley testifie d as a man who has bee n involved i n dairy f a rming his entire life. When Whitley discovered that some of his cows had been inseminated with inferior semen, he culled out

the cattle inseminatedby Liggett, which numb ered for ty-three, and sold t hirtyseven of these cows at a much lower price. In this Court’s opinion, this is the only course of action that Whitley could have taken which would not in r eality inc rea se rather than decrease his damages. He sold the inferio r cattle and bought back what he could from the moneyobtained from the sale. If he had kept the inferior cattle, perhaps his losses would have been greater.
Contraryto what TABA insists , it is the opinion of this Court that th e damage analysis of Whitley was a “reasoned analys is.” As mentioned supra , Whitley was able to determine that Liggett had bred forty-three of his cows by utilizing the char

ts Liggett filled out e ach time he inseminated cows for W hitley. Of these forty-three cows, Whitley so l d thirty-sevenof them receiving a sale price of $15 ,31 3.00. Had the cattle been correctly12

bred and their ancestry pro perly fixed, Whitley testified that they would h ave sold for approximately $1,300 to $1,500 per cow. With the funds he received from the sale of the inferior cows, Whitley testified that he w ould have been able to purchase only twe nty to twenty-two replacement cows. This i s fifteen fewer cows thanWhitley should have had if the cattle had been bred absent the frau dulent conduct of Liggett.
Using the “bull books” distr ibuted by TABA, Whitley testifiedthat the cattle, if bred correctlyas he had ordered, should have produced nine hundr ed to one thousand pounds of additional milk over their ancestors. The catt le bred by L iggett woul d have come on line in 1990. He further testified that ov er the lifetime of a heifer, she will produce t hree offspring. In calculating his damages, Whitley took into account that on e ha lf of those offspring would be heifers. Also accounted for i n calculating damages were the deaths of
cows in his herd. Whitley used figures in his c al culations that were lower than the herd averages for the state as well as lower than normal appraisal rates on these animals.
Utilizing these figures, Whitley

testified that the lost milk production because of the absence of the fifteen cows would have been as follows:

First year: $12,542 Second year: $13,625 Third year: $13,135 Fourth year: $16,361 Fifth year: $18,531 Sixth year: $21,505 Seventh year: $23,813 TOTAL: $119,512 Whitley testified that the i n crease in the dollar amounts each year is due the increase in cows as they repleni sh each year.

In addition to these figures, Whitley testified that he had two bulls that

were derived from Liggett’s inferior insemination. He sold these two bulls for a totalof $300. Whitley further testifie d that th e bulls wou ld have been worth $3,000 i f they ha d been br ed prope rly. This added $2,700 to his calculat ed damages.
Furthermore, Whitley testified that the year after initially

selling thirty-

seven ofthe13

cows inseminated by Ligget t, he sold the remaining six cow s for $500 apiece. He insist s that the value of these cows, if br ed correctly, woul d have been approximately $1,300 per
cow for a total of $7,800. Therefore, Whitley appends this $4,800 differ ence t o his damages.
Finally, Whitley testifie d that he would have twenty-six matu re cows, eleven spr ing heifers, and eleve n younger c ows to cull out. Whitley affixed a value of $1, 300 to each of the twenty-six mature cows and eleven spring heifers fora total of $48,100. Whitley affixed
a value of $750 to each of the eleven younger cows for a total of $8,250. The total for all “culling out” sales , according to Whitley’s estimati on, amounted to $56,350.

When adding these figures to Whitley’s $119,512 estimated loss of milk production, the grand total of Whitley’s calculated damages was $183,362. The tri al court was of the opinion that these damages were ex cessive, and con s equently, granted a new trial to TABA unless Whitley accepted a remittitur on his damages not in exc ess of $120,000.

In 19 11, the Ten nessee Legislature enacted w hat is now Tenn. Code Ann. § 20-10-102 concerni ng remitti tur. In 1969 an additur statut e was enacted--Tenn. Code Ann. § 20-10-101. The purpose of these ac ts was to allow tri al and appellate courts to revise and correct errors relating to the size of a jury's verdict. The statutes recognize the inherentpower of

trial courts to

"suggest" an additur or remittitur as an alternati ve to a new trial. The Supreme Court has held that a j ury verdict found to be ex cessive may be cured byremittitur. Poole v. Kroger Co. , 604 S.W.2d 52 (Tenn.1980). Courts are e ncouraged to exercise caution in ordering a new trial based on the size of a jury verdict and should, if at all possible, utiliz

e the remedy of remittitur. Pitts v. Exxon Corp. , 596 S.W.2d 83 0 ( Tenn.1980); Jenkins v. Commodore Corporation Southern , 584 S.W.2d 773 (Te nn.1979) ; Guess v. Maury

, 726 S.W.2d 906 (Te nn.App.1986).

The Supreme Court outlined its views on the impact of the trial judge's decision in evaluating the excessiveness of a j ury verdict ov er a century ago. In Tennessee Coal &14

R.R. v. Roddy

, 85 Tenn. 400, 5 S.W. 286 (1887), the trial judg e stated that he felt the judgmentwas excessive, but, nev ertheless, sustained

it "to terminate the litigation in this case, ... this Court having tried the case for the third time." Id. at 40 2, 5 S .W. at 287. The SupremeCourt refus ed to set as ide the judgment on appeal, holdi ng that it was the responsibility

of the trial jud ge to do so if he th ough t it proper. It stated: "Much of the importance and weight attache d to jury t ri als proceeds from the presumption that an intelligent

and learned Circuit Judg e, accustomed to weighing evide nc e, has scrutinized the proof, looked into the faces of the witnesses, and indorsed the action of the jury." Id. at 403, 5 S.W. at 288.

This same philosophy continued after remittitur had becom e recognized as a method of curing excessiv e verdicts

as an alternative to

a new trial. In Wolfe v. Vaughn , 177 Tenn. 6 78, 6 88, 152 S.W.2d 631, 635 (1941), the Supreme Court stat ed that the "amount fixed by

the jury and concurred i n by the trial judge will be accepted upon appeal unless there is somet hing to show a violation of the discretion" of the trial j udge. The SupremeCourt hasfurther stated that a jury verdict which has

the trial judge's approval is entitled to "great weight," D.M. Rose & Co. v. Snyd er , 185 Tenn. 499, 525, 206 S.W.2d 897, 908 (1947), and that the appellate court "rarely

ever" disapproves

damages set in this
manner. McClard v. Reid , 190 Tenn. 337, 343, 229 S.W.2d 505, 507 (1950 ). Th e SupremeCourt again emphasized the responsibility of the tr ial judge in determining whether the amount fixed by a jury is excessive: "A

fte r he ha s approved the verdict it is
our duty not to disturb it u nless it is evident that he failed to keep the jury within reasonable bounds."

More recently the leg islatur e has laid to rest any q uestion about the standard of
rev iewin the Court of Appeals on additur or remittitur by enac

tment of Ch. 232 of the Public Acts of 1987, Tenn. Code Ann. §§ 20-10-101(b)(2) and 20-10-102(b) to provide that Tenn. R. App. P. 13(d) shall ap ply. Tenn. R. App. P. 13(d) mandates in pertinent part: (d) Findings of Fact in Civil Actions.--Unless otherwise requir ed bystatute, review of findings of fact by the trial court in civil action s shall be de novo upon the record of the trial c ourt , a ccompanied by a presumption of the correctness ofth e15 finding, unless the p repon derance of the evidence is otherwise. Findings of fact by a jury in civil actions s ha ll be set aside onl y if there i s no material evidence to support the verdict.
The courts are in agreement upo n a primary guideli ne relev ant to the issue of damages. In Reeves v. Catignani , 157 Tenn. 173, 7 S.W.2d 38 (1928), this Court sai d: The amount of the verdict is primar ily for the jury to determine, and next to thejury the most competent person to pass upon the matter is the judge w ho presided at the trial and h eard the evidence. 157 Tenn. at 176, 7 S.W.2d at 36.

In our evaluation of the case before us, we find that there wa s sufficient proof of Whitley’s damag es presente d to the jury on whic h they could base their aw ard. Recognizing

that it is the jury's special province to evaluate damages and that damag es often cannot be defined with "mathematical precision," we do not find the award to be excessive, but rather that it stemmed legitimately and naturally from the regrettable facts of this case. After a de novo review on the record, we find that the jury's verdi ct conformed to the requirements of Tenn. R. App. P. 13(d), and therefore we r einstate the ori ginal award of $183,362.

CONSUMER PROTECTION ACT Whitley and England insist that TABA s hould be held liable for Liggett’s fraudulent conduct under the Tennessee Consumer P rotection A ct. They further insist that the principles

of agency should be made applic able to the Act in so holding TABA liable. We agree.

Five days before the trial on thi s matter, plaintiffs filed a motion with the court i n an attempt to amend their complaint. In their attempt at amending the co mplaint, England and Whitley desired to state more sp ecifically what sec tions of the Tennessee Consumer Protection Act they believed TABA had violated. The trial co urt denied their motion to amend and the trial proceeded as s cheduled.16

England and Whitley’s original complaint cont ai ned a cause of action under the Tennessee Consumer Protection Act . Specifically, it s tated: 16. The actions alleged herein above consti tute u nfair or decepti ve acts or practices affect ing the conduct of trade or com merce in violations of the Tennessee Consum er Protectio n Act of 1977. (Tenn. Code Ann. § 47-18-104 [a]). 17. The plai ntiffs

and each of them are “consumers” within the meaning of the Tennessee Consumer Protection Act of 1977. 18. The actions a ll eged hereinabove are als o violations of Tenn. Code Ann . § 47-18-104(b) (7) of t he Tennessee Consumer

Protection Act of 1977 as rep r esentations that goods or services are of a par ticular standard, quality

or grade when they were actually of another.

The record fails to disclos e that England and Whitley, in accusing TABA, reli ed upon any specific provisions of the Tennessee Consumer Prote ction Act besides sections ( a ) and (b)(7). Tenn. Code Ann. § 47-18-104(a) of the Act pr ovides tha t “unfai r or decep tive
ac ts or practices affecting the conduct of any trade or comme rce are hereby declare d unlawful.”In any event, it is the opinion of this Court that the jury could have found TABA liable for Liggett’s deceptive trade practices under agency principles.
Apparentagency is essentially agency by est oppel; i ts creation and existence depend upon such conduct by the apparent principal as wil l p reclude him from denying another' s age ncy. Kelly v. Cliff Pettit Motors , 191 Tenn. 390, 234 S.W.2d 822 (1950). Generall y, to p rove a pparent agency one must establ ish (1) the principal actually or negli ge ntlyacquiesced in another par ty's exercise of author

ity; (2) the third person had knowledge of the facts and a good faith belief that the apparent agent pos sessed such authorit y; and (3) the third person r elied on this apparent authority to his or her detriment. Oppenheimer v. Wooline, 4 Tenn.Civ.App. 134 (1834). See also Southern Railway Co.
v. Pick le , 138 Ten n. 238, 197 S.W. 675 (1917) and Am.Jur.2d Agency , §§ 19 and 80 (1986).
First, th ere is sufficient proof in the rec ord to support the finding that T AB A negligentlyacquie

sced in Ligget

t’s ex ercise of a uthority

in inseminating cows . Indeed,17

TABA allowed its name to beplaced on the breeding rece ipts. TABA’s general manag er admitted by negative inference that Liggett w as a representative of TABA w hen he stated that Liggett was “no l onger a representativ e of the Association.” Furthe rmore, TABA provided “bull books” whereby cattle farmers chose what type of bull semen with whi ch to inseminate their heifers.
Second, both Engl a nd and Whitley testified that they believ ed that TABA and Liggett were one and the same. Specifically, England testified as follows:

Q. To what extent, if any,did you believe T.A.B.A.had any backing of Mr. Ligge

tt? A. Well, they was all one in my opinion. Q. And what did the appearance of thei r name on th i s breeding receipt sig nify to you? A. That he wa

s an agent of them. Q. And did that give y

ou any comfort in your beli ef that based on this receipt, that he w as an agent of T.A.B.A.? A. Yes, because I have th eir bull books and all and I knew what their semen was d oing. Whti ley testif ied simil arly:

Q. During this pe riod of time that you were usi ng artificial insemination on your dairy herd, from whom were you buy ing bull semen? A. Select Sires. Q

. And what is Select Si res and T.A.B.A., can you t ell th e jury? A. To me Select Sires and T.A.B.A. i s just one giant organizat ion, t hat is the way I always understood it. It is a place that you would purchase semen from the bulls that you wanted to use to breed your cow s. And T.A.B.A. was the State organization and I understood the Ohio based pl aced to be the National part and then you had co unt y brances under that. I lived in Maury County. Mr. Liggett, he w as a Gile s County techni cian. Mr. Sam Kirk and Roger Toombs was Maur

y County Technicians. Q. For? A. Tennessee Artificial Breedi ng Association.
Finally, England and

Whitley relied upon this apparent auth ority of Liggett to their18

detriment. Testimony was giv en on behalf of both England and Whitley elaborating on the extent of their damages.

Tenn. Code Ann. § 47-18-109(a)(1) and (e) (1) allow plaintiffs w ho filed suit under the Act to recover actual damages and reasonable attorney ’s fees.

We see no logical reason why agency principles s hould not be applied to the Tennessee Consumer Protection Act

.
CONCLUSION In light of the foregoing, we rev erse the judgment of the trial court granting TABA’s motion for directed verdict and dismissing plaintiffs’ Tennessee Consumer Prot ection Act claim and remand this matter to the tr ial court for further proc eedings n ecessary and consistent

with this opinion. Further, we reverse the judg ment of the trial court affirming the jury’s verdic

t awardingEngland $77,840.54 and 8% prejudgment interest and remand this matter to the trial court for further determination of damages a nd attorne y’s fees to
awar d to England, if any, under the Tennessee Consumer Protection Ac t. Further, w

e reinstate the jury’s verdi ct awardingWhitley $183,362.00 and remand tothe trial court for
a further determination of the amount of attorn ey’s feesto award to Whitley, if any, under th e Tennessee Co nsumer Protect ion Act. Costs are adjudged equally aga inst Engl and an d TABA fo r which execu tion may is sue if ne cessary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.19

LILLARD, J.