### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 30, 2001 Session JAMES A. COLLINS, ET AL 

### . v. SUMMERS HARDWARE A ND SUPPLY COMPANY Appeal from the Circuit Court for Washington County No. 20085 Thomas J. Seeley, Jr., Judge

No. E2001-00578-COA-R3-CV Filed March 27, 2002

Th is i s a suit by Pl aintiffs James A. C ollins and Gary Smith

seeking d amages f

rom their former employer, Summers Hardware and Supply Company, in connection with their employme

nt. The Plaintiffs contend that Summers Hardware made certain deduc tions from their pay which were contrary to their employme nt contra ct. Summer s Hardwa

re asse rts other wise. A ju

ry found t

his issue in favor of the Plaintiffs an d asse ssed damages, which the Trial Court, on motion of the Plaintiff s, altered u pward. Summers Hardwa re appeals questioning whether the statute of limitations has r un as t o Mr. Collins’ suit and whether both parties were estopped to press the claim or had waivedtheir right to asse rt it. Summe rs Hardw are als o contend s the Tria l Court wa s in erro

r in increa sing the ju

ry awar d without gi ving them th

e option of

receiving a new

trial. We affirm.
Tenn.R.App. P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med; Cause Remanded
H OUSTON M. G O DDARD , P.J., delivered the opinion of the court, in which Herschel P. Franks, J., joined. D. M ICHAEL S WINEY , J., not participating. Rick J. Be arfield , Jo hnson City, Tenness ee, for the Appellant Summe

rs Hardw are and

Supply Company Mark M. La

wson, Bris tol, Virgi nia, for the Appellees, Ja

mes A. Collins and Ga

ry Smith OPINION
James A. Collins and Gary Smith, fo rmer employees-at-will of Summers Hardware and Supply Company sue the Company for commissions they contend they were entitled to, which were notpaid. A jury returned a verdict finding that their insistence was c orrect and awarded Mr. Collins $7500 and Mr. Smith $13,000.1 The st atut e of l imit ati ons as to Mr. Col li ns had not run. 2 The Tria l Court li mited Mr. Smith’ s re covery t o thos e damages s uffer ed in t he si x years precedi ng the filing of the com plain t.

-2- The Trial Court overruled Summers Hardware’s motion to alter or a mend or for a new trial, except $387.94. contended to be owed Summers Hardware by Mr. Smith. The Plaint iffs like wise filed a motion to a

lter or a mend and t

he Trial Court incr

eased Mr . Collins’ award to $15,087.21 and Mr. Smith’s to $25,793.36.
Summers Hardware appeals, raising a nu mber of issues which we will summarize and restate as f ollows:
1. The Trial Court should have found tha t the emplo yment con

tract with Mr. Smith 1 was divisi ble or severable, resulting in the statute of limitations beginning to run upon his receiving h is first pay check, which was more than six years prior to October 20, 1999, the date this suit was filed. 2
2. The Trial Court should have directe d a verdi ct on Summe rs Hardw are’s d

efense of estoppel and should not have submitted that issue to the jury. 3. The jury was in error

in finding

the Plainti ffs had n ot waived their rights to assert their claims for breach of contr act. 4. The Trial Court erred in altering the judgment, which in effect was an additur without granting Summers Ha

rdware the right t

o refuse the addit ur and be granted a new tri al.
Mr. Smith was employed by Summers Hardware from September 8, 1992, to June 25, 1999, and Mr. Collins from March 14, 1994, to March 10, 1999.
It was the Pla

intiffs’ theory th at they we re emplo yed as at

-willcommission salesmen, and the compensation agreed

upon was a flat commission of 22.5 percent of the differe nce between the sales price to customers and cost of the goods to Summers Hardware

. It was Summers Hardware’s theory that the agreement was that they should receive the 22.5 percent heretof ore ref erence d, le ss de ductions for medical insurance and Summers Hardwar e’s share of Social Security. Although the chec

k stubs the

Plaintiff s recei v ed h ad standard deductions, such as the employee s’ portion of Social Security provisions and withh olding t ax, it did not disclose any deduction for the employer’s share of Social Security or f or health insurance.-3-

While it is true, as argued by Summers Ha rdware , that both

Plaintiff s knew af ter the f irst few pay checks that

the amoun

t receiv ed in thei

r monthly p ayments w as, as Mr . Smith put it, “a little bit shy,” we do not believ e this know ledge was sufficient to trigger the running of the statute of limitations. We say this because there is proof in the record which

the jury could have and, under the verd ict, most likely did believe that the officials of Summers Hardware deceived the Plaintiffs by contending the deductions made were for “tele phone costs, paper work, etc.” There isalso proof that Summers Hardwa

re ref used to show the Plaintiffs the commission reports, which disclosed the deductions in question. These were kept in a vault and according to the pay master were not

to be shown to the employees absent a uthoriza tion by Summe

rs Hardw are. There is also proof that when inquiry was made one of the officers told them that “I will get bac k to you,” but he never did. Finallyand perh aps the mo st damn ing proof insofar as Summer s Hardwa

re’s defense is concerned, the handbook given to both employees specifica lly provided the following: EMPLOYEE BEN

EFITS

. . . . HEALTH INSURANCE The company provides group health insurance which is underwritten by a national carrier, Charter

Benefits. After 90 days of employment you become eligible. At that time you will be given the opportunity to accept the insurance coverage . The insurance company provides a booklet explaining the various benefits, a copy of which will be given to you when you join the program. The company pays all the premiums of the employee . (Emphasis supplied.) Summers Hardware also pleaded as to Mr. Smith that his claim was barred by the app licable six-year statute of limitationsand, in ad

dition, tha

t they both

had waiv ed their

right to assert th

eir claim or estopped to do so. At the clo se of the

trial the jury retu rned a sp ecial ve

rdict as f ollows: VERDICT Under the termsof the contract that the jury finds existed between the parties, the jury rep orts as fo llows: COLLINS 1. Did Collins by his conduct knowingly and intentionally waive any breach of contract by Summer s?-4- Yes ______ No T If no, proceed to Question 2
2. Did the pa

rties agree t hat collins would receive as his gross pay 22.5% of Summers’ gross profit reduced by Summers’ cost of so cial security and health insurance? Yes ______ No T
If you answered

“Yes”, thenanswer Question 3.B. ONLY. If you answer “No’, then proceed to Question Nos. 3A. and 3B). 3. Based upon your finding in Question NO. 2: A. Summers owes Collins for unpaid commission at 22.5% $ 7500.00 B. Summers owes Collins for unpaid commission at 16.5% $ O TOTAL OWED TO COLLINS $ 7500 SMITH 1. Did S mith by his conduct knowingly and intentionally waive any breach o f contract by Summer s?

Yes ______ No T If no, proceed to Question 2
2. Di d the parties agree that Smith would receive as his gross pay 22.5% of Summers’ gross pro fit reduc ed by Summe rs’ cost of social security

and hea lth insurance? Yes ______ No T
If you answered “Y es”, then Smith cannot recover. Proceed to the next section. If you answer “No”, then proceed to Question No. 3. 3. Based upon your finding in Question No. 2: Summers owes Smith for unpaid commission at 22.5% from October 20, 1993 (but not prior to that time) $ 13,000-5- TOTAL OWED TO SMITH $ 13,000 SUMMERS 1. Does Smith owe Summers on Smith’s customer ac commo dation charge accoun t?
Yes No T 2. If yes , how much

does Smith o we Summer s: $ 0.00

/s/ (Not Legible) FOREPERSON
DATE 11/10/00 Under Tennessee law it is cl ear tha t the statu te of limita

tions begi ns running

as to a contract when the caus e of act

ion accr ues. It is a

lso clea r that as t o entire contracts, as dis tinguished from severa ble contracts, a single

cause of action a rises upo n a brea

ch occu rring. Asto sever

able contrac ts, however, breaches give rise to sepa rate causes of action which may acc rue at different times. Both points a

re artic ulated in the case of Greene

v. THGC, I

nc., 915 S. W.2d 809 (Tenn. Ct. App. 1995)

. What is not clear is which contracts are entire and which are severable. A number

of case s have ad

dressed the quest ion, whic h we will n ow detail : Barnes, et al. v. Black Diamond Coal Co., 47 S.W. 498 (Tenn. 1898) In this case, which is the oldest one to which we have been cited, the plaintiff was see king rents claimed to be owed under a lease w hich was for one year at a renta l of $30 per month. A previous suit had been filed as to rent earlier due but not paid, which was pleaded by the defendant as a bar to the present suit under the theory of res judic ata . In addr

essing the question our Suprem

e Court found the contract was severable and state d the following (at page 498):

It is next said the matter is res jud icata. It app ears that, previous to the present suit, comp lainants brought a n action f or the re nts of December, 1895, and January and February, 1896, and recove red $90, or at the

rate of $30 per mo nth for the three mont hs. The r ents previous to De cember , 1895, we re paid. It is insisted this is a bar to any further action for t he breach of this contract. The argument is that the

contract is entire

for the te rm, even although t

he renta l is so much per month, and, being an entire contract, there c an b e but one breach and-6-

one re covery theref

or. If the contra

ct is an e ntirety, a nd not divis ible, it mus t follow, under the authorities, that there can be but one breach a nd one recovery. Ta rbox v. Hartenstein, 4 Baxt. 78; Railroad Co. v. Staub, 7 Lea, 397. A singl e cause of actio n cannot b e split

in order that separate suits may be brought for the various parts of

what rea lly constit utes but o ne demand. 1 Enc. Pl. & Prac. pp. 148, 153. Taking judgment by mistake for a less sum than due will not justify the plaintiff in recovering the residue in another action. Saddler v. A pple, 9 Humph. 342; 1 Enc. Pl. & Prac. 150, note; Thomason v. Rice, 1 Shannon, 70. As to when a contract is entire , and whe n it is div isible, is a

question u

pon which

there is a greatco nfusion a

mong the c ases. It

is said: "W

hether a contract is entir

e o r separa ble into several independent con tracts d epends upon the intention of the parties, to be ascertained from the language employed and the subject-matter of the contract." 1 Enc. Pl. & Prac. pp. 150, 152, note 1; Pollak v. Association, 128 U. S. 446, 9 Sup. Ct. 119; Shinn v. Bodine, 100 Am. De c. 560; Hu yett & Smith Mfg. Co. v. Chica

go Edison Co . (Ill. Sup .) 59 Am. St. Re p. 278, 47 N. E. 384, and cases there cited. And again: "Common sense must be applied to each case, rather than any technical rules of construction." Leonard v. Dyer, 26 Conn. 172. The genera

l test rule to determine whether a contract is divisible or entire is stated by Mr. Parsons thus: "If there are many parts of the contr act, and some have been broken, and other s not yet, a s if money was to be paid on the 1st of everymonth for two years, and one year has expired, a nd nothing has been paid, the creditor may bring his action for one or more of all the sums due, and recove r accordingly, and may, when the others fall due and are unpaid, su e for the

m." 3 Pars. Cont. (5th Ed.) 188, 189. To the same ef fect, se e Huyett &

Smith Mfg. Co. v. Chicago Edison Co. (Ill. Sup.) 59 Am. St. Rep ., note on page 279 (s. c. 47 N. E. 384), where the authorities are cited and fully collated. The distinction between the two classes of contracts is plainly stat ed in Coleman v. Hudson, 2 Sneed, 465, as follows: "In the former [entire contracts] the consideration is entire on both sides. It does not, either by its terms or the implied intention of the par

t ies, contemplate or admit of apportionment upon a partial failure on either

si de; and the compl ete fulf illment of the contr act by either is required as a condition precedent to the fulfillment of any part of the contract by the other. A

severa ble contr act is a c ontract

the consi deratio n of whic h, by its terms, is susceptible of division and appo rtionment. There is in such cases no entirety of consid eration on either side, con stituting a

condition of the ag reemen t; and neith er part y can claim more than an equivalent for the actual consideration on his part. [Citing authorities.] There is another class of cases, n oticed in

some of the books, of a mixed nature, partaking o f the character both of entire and severa ble contracts, and which may be considered as e ntire or severa

ble , according to the circumstances of the particular cases. Story, Cont. § 24." It was held in that case that a contract to deliver, for

a price named the

rein, fr om 100 to 150 head of b eef ca

ttle from the 1st of February to the last of July, in lots of 20 or-7-

more monthly, and all the hogs th at are fed with the cattle, at the market pric e, was divisible into several contracts as respects the remedy, for a breach of either of which a s eparat

e action wo

uld lie. Asillustrating the rul e, it is hel d that, when a promissor

y note is pa

yable in installments, an action may be maintained for each installment when it become s due, an d the statu te of limitations begins to run from that time. Bush v. Stowell, 10 Am. Rep. 694. See, also, Badger v. Titcomb, 26 Am. Dec. 611-613; Lorillard v. Clyde (N. Y. App.) 2 5 N. E. 292. See, also, Coleman v. Hudson, 2 Sneed, 4 63. Insta llments of

rent ar e subjec t to the sam

e ruleas installments of money due, and an action m ay be brough t as each installment falls due. 1 E nc. Pl. & Prac. 155 , note 3; Ste inkuhl v. H ardin (Jackson, 1875) 1 King's Dig. p. 561. The cases, it appears, however, a re uniform in holding that contracts for personal service mus t be t reated as entire, and not divisible; and henc e there can be b ut one bre ach and one rec overy up on defau lt, no matter if the wages are payable by installments or at stated pe riods. See the cases collated in Huyett & Smith Mfg. Co. v. Chicag o Edison Co. (Ill. Sup.) 59 Am. St. Rep. 290 (s. c. 47 N. E. 384). And in ac c ord with this holding are our cases of Hughes v. Cannon, 1 Sneed, 622, Tarbox v. Hartenstein, 4 Baxt. 78, and Railroad Co. v. Stau b, 7 L ea, 397. Whether this distinction arises out of the nature of the co ntract, or is base d on some other gr ound, it is well recognized and enforced in cases where th

e holding w ould

evidentl y be diff erent if it were n ot a contract for per sonal ser

vices; a nd, wheth er base d on sound r

easons o r not, we must r e cognize

contracts for pe

rsonal se rvices a s entiret

ies. But, in

regard to rentals, there is, perhaps, no more common form of contract than a rental by the year, payable monthly; and it cannot on any sound reason b e held

that if the tenant breaches the contr

act, and abandons the premises, a suit for the first month's rent would bar a recovery for subsequent months as they a ccrue. We are of opinion, further, that the statute, Shannon's Code, § 4620, is applica ble to this case. It provides that "successive actions may be maintained on the same contract or transaction wheneve r after the forme

r action a new ca use of action arises therefrom." A new cause of action arises and becomesenforc eable withevery successive installment. It is not meant that a complainant can unnece ssarily

vex the defe nda nt with successive small suits, for in such cases injunction will lie to prevent multiplicity of suits; and acco rdingly it is a well-establishedrule tha

t, when a n action i s brought t

o collect installme

nts, it should incl ude all then due, and that those then due constitute together but one cause of action, and some of the cases go to the extent that a recovery in one suit will bar a second action to recover other similar claims or installments that were due when the first was brought. 1 Enc. Pl. & Prac. p. 15 5, notes 2 and 3, and cases cited. We are of opinion that there is no error in the decree of the court of chance ry appea ls, and it isaffirme d, with co sts. Menihan Co. v. Hopkins, 164 S.W. 775 (Tenn. 1914)-8-

In this case an employee was hired for a salesman for a period of one year a t a compensation of $1500 tobe paid monthly at the rate of $125. He contends he was wrongfully dischar ged “near the middle of the contract year about June 1.” The Supreme Court held that this contract should be treated as an entire and indivisible one, that only one cause of action

accrued, and that

a prior action filed would be a bar under the doctrine of res judic

ata as to any actions for salaries as to subsequent months. In so doing the Court used the following language (at page 776):

It follows th at, so far as regards the period following a wrongful discharge, the contract being entire, only a single action based on the breach is maintainable. Au thoritie s, supra. And that the bringing of suit by the employé for services during a part of such period before the yea r has exp ired (a nd damages thus ascertained) becomes res adjudica ta, barring a second

action for

services during a subsequent portion of the period. The fact that the employé has set forth in his pleading that his suit was for "salary for

the months " above in dicated cannot a vail to split the

entire c ontract

so as to defeat the employer's right of set-off. The a ction in behalf of

the employé was one for damages incident to the breach of the contract as an entire one, and not, after breach, for salary f or any given month or months. In Olmstead v. Bach, 78 Md. 132, 27 Atl. 501, 22 L. R. A. 74, 44 Am. St . Rep. 273, the true rule is we ll stated: "The employé had no option as to the remed ies which he might pursue. He was confined to an

action for the recovery of damage s which he had sustained by a breach

of the contract, because succe ssive actions instituted for the recovery of fractio ns of the s ame aggr egate damages cannot be supported. His suit before the ma gistrate was, whatever it purported to be, a suit for the bre ac h of th e contract of hiring. *** There was but one dismissal and but one breach, and the plai ntiff c ould not split up his cause of action, recovering a part of his damages in one suit and the remainder afterwards in other suits, for that single br each." A rightof actio n arose, not for unearned wages or salary as such, but for damages for the b reach o f the con

tract. We hol d, theref

ore, that when the contract in question was broken, the employés cause of

action was not for salary, but one for damages growing out of the breach of the contract, which wa s, as seen, an entire one. In ascertaining these damages, they will be viewed as being aggrega te for the entire term, for thepurposes of the complaining employé; and, by virtue of the sameprinciple, any rightto deduction, by way of mitigation of damages, arising at any time during the year i n behalf of the em

ployer, m

ust be tak

en into reckoning. Otherwi se the emp loyé as pl aintiff w ould be pe rmitted to elect to segrega te and include for remedial purposes that part of the year during or

in-9-

respect of which no factor of mitigation arose, and exclude a subsequent por tion of the period in which such counterright did arise.
It is, of course, the rule tha

t whateve r the emp loyé has, during the term, in fact received as compensat

ion under a contract with another employer, af ter dismis s al, must be deducted. Children of Israel v. Peres, 2 Cold. 620; Allen v. Maronne, 93 Tenn. 161, 23 S. W. 113; 1 Labatt, M. & S. (2d Ed.)§ 390.

Stone v. Halsell, 648 S.W.2d 949 (Tenn. Ct. App. 1982)
In this case

a circu it court c lerk wassuing to re cover un paid sala ries. Alt h ough th e determination of the ca se turne d on statut es rela tive to clerk s’ salaries, the court did find that the clerk was ent itled to recover f or unpaid salary f or a per iod of six y ears pr

eceding the filing of th e suit. Greene v. THGC, Inc., 915 S.W.2d 809 (Tenn. Ct. App. 1995) This is a suit wherein the plaintiff had been granted a complimentary lifetime m

embersh ip as a result of an assignment of beneficial interest in rea l estate to THGC’s predecessor in title. The determinative question in the ca se is when the statute of limitationsbegan to r

un. This Courtheld that

the contr act was e ntire an d the statu

te began to run upon the plaintiff

being advised that his complimentary membership would not be honored. In reaching this conclusion the Court stated the following (at page 811):

Tennessee C ode Annotated section 28-3- 109(a)(3) (1980) provides that th e statute will begin to run when "the cause of action accrue d." The trial court held that the cause of action d id not acc rue until plaintiff incurred damages. We are of the opinio n that the

trial cou rt was in error since theconstruction of the contract shows that plaintiff did not enjoy a separate cause of action upon ea ch dues pa yment, but rather he had a single cause of action which accrued upo n defendant's repudiation of the contract in 1985. "Where a contract is severable or divisible, breache s of its seve rable parts will give rise to separate causes of action ac cruing at differe nt times, .. ." Brocke

tt v. Pip kin, 25 Ten n.App. 1, 8, 149 S.W. 2d 478, 482 (1941) ( quoting 37 C .J. Limitations of

Actions § 216 (1925)). Under these circumstances, the statute of limitation will begin to run at the time of each breach. Id . On the ot her hand , "if a continuing contract is entire, an action c an be mai nta ined on it only when a breach occurs or the contract is in some w ay termin ated, and the statu te begins to run from that time only." 54 C.J.S. Limitations of Actions , § 154 (1987).-10- Under Tennessee law

there is n o precis e definitio n of when a contra ct is entire or when it is severable. James Cable Part ners, L.P. v. City

of James town , 818 S.W.2d 338, 344 (Tenn.App.1991), cert. denied , 502 U.S. 1 032, 112 S.C t. 872, 116 L.Ed.2d 777 (1992). A c ontract is sever able "whe

re each part is so independent

of each other as to form a separate contract." Id . A contract is entire when the "promises of both parties are int erdepende nt and relate to the same subject ma

tter." Id

. Although the quotations for the opinions above set out ar e to some degree contradictory, we are persuaded that the contract with the Plaintiffs, which did not provide for a specific amount to be paid, as was the case in Menihan , was not entire, but severable. We acc ordingly affirm the Trial Court’s de

terminat ion to that e

ffect.
As to the issue of estoppel, the burdenof proof is upon the party asserting such, Edwards v. Central Motor Company , 277 S.W.2d 417 (Tenn. 1955), and counsel for the Plaintiffs in their trial brief correctly states the elements thereof : “In order to constitute an equitable estoppel, estoppel by conduct, or esto ppel in pa is there must exist a false representation or conce alment of material facts ; it must have been made with knowledge, actual or constructive, of the fa

cts; the pa

rty to whom

it was mad

e must h ave been without knowledg e or the m eans of k nowledge of the re al facts ; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.” [ Ryan v. Lumber

men’s Mutual Cas. Co. , 485 S.W.2d 548, 550 (Tenn.1972) ( citing 31 C.J.S. Estoppel § 67 at 402)].
We agree with the Trial Judge that under the fac ts developed the Plaintiffs were not entitled to a directed verdi ct as to t his issue. Moreover, it does not appear this issue was submitted to the jury as the special verdict form makes no mention thereof. Regarding waiver, counsel for Summers Hardwa re in its tr ial brief also correctly states this doctrine:
“A waiver is an intentional relinquishment of a kn own r ight and is a

doctrine of very broad and general applica tion. It concedes a right, but assumes a voluntary relinquis hment of it . Our cou rts have held that there must be clear, unequivocal and decisive acts of the part y of an act which shows determin ation not to have the benefit intended in order to constitute a waiver.”-11-

( Gitter v. Tennessee Farmers Mut. Ins. Co. , 450 S.W.2d 780, 784 (Tenn. Ct. App. 1969)). Certainl y un der the p roof in this case, given the fact that representa tives of Summers Hardware misled the Plaintiffs relative to the deduction from their checks and concealed f rom them the true facts, there is material evidence to support the jury’s verdict relative to this issue. With regard to the Court increasing the judgment, it appears that after the jury verdict was rendered in favor of the Plaintiffs, a simple mathematical computation would determine the amount of damages. Indeed, in the case of Spence v. Allstate Ins. Co. , 883 S.W.2d 586 (Tenn. 1994), our Supreme Court addressed the precise question where the amount to which the plaintiff was entitled was uncontested. In approving the trial court’s altering and amending the judgment to that figure, the Supreme Court stated the following (at page 594):

The next issue for our determination is whether the Court of Appeals erred in affirming the trial court's grant of Allstate's motion for "additur." This ruling increased the judgment against Pamela Spence from $4,990 to $88,777. (FN3)
Pamela Spence argues that the tr

ial cour t erred because it failed to obtain her consent before ordering the additur. This, she says, violated her right to jury trial as guaranteed by the Seventh Amendment to the United States Constitution and Article I, § 6 of the Tennessee Constitution. Pamela Spence is c orrect that the federal and state constitutions require the consent of the party against whom the additur is to be entered. Dimick v. Schiedt , 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.E d. 603 (19 35); McCall v. Waer , 487 S.W.2d 3 08, 31 0 (Tenn. 1972); Kaiser v. Cannon , 529 S.W.2d 235 (Tenn.App.1975). The rationale for requiring such consent is that when the trial court grants a motion for an additur, it is essentially disagreeing with the jury's determination of

damages --which

is a question o f fact. Because the trial court is acting in its capacity as "thirteenth juror," the right to jury trial clauses of the fede ral and state constitutions--which require that the jury be allowed to determin e all disputed issues of fac t, Finks v. Gillum , 38 Tenn.App. 304, 273 S.W.2d 722 (1954); Morgan v. Tennessee Central Ry ., 31 Tenn.App. 409, 216 S.W.2d 3 2 (1948)- -mandat

e that the trial court obtain the consent of the party against whom the additur isto be entered. And if that party does not acce pt the additur, the trial court must order a new trial. Tenn. Code Ann. § 20-10-101(a )(2). That rationa le does no t applyt o this cas e becau se Allsta te's motion

to increa se the judg ment, although deno minated a s a motion f or "additu r," was in fact a motion to a

lter or a mend the j udgment pu rsuant to Rul e 59.04, Tenn.R.Ci v.P. This is so because A llstate's damageson its inde mnity clai m against Pamela Spe

nce wer e undisput

ed--the only issue

of fact for the ju

ry to3 The foot notes in t he quote d materi al ha ve been omit ted. -12- decide on the indemnity claim was whether Pamela Spence was responsible for the fire. If

the jury d id decide that she w as respo nsible fo r the fir e, it was required to award Allstate the total amount it had expended on the claim.

. . . . B ecause there wa s no fact

ual issue concer ning dama

ges, the t rial cou rt w a s notacting as "thirteenth juror" in increasing the judgment to the a mount th at Allstate had expended due to Pamela Spence's acts. It is, moreover, well settled that a trial court may modify a judgment when the damages awarded by the jury conflict with the undisputed facts concerning damages. See Martin v. Prier Brass Mfg. Co ., 710 S.W. 2d 466 (Mo .App.198 6) (judgm e nt agai nst insurer modified when it excee ded the a

pplicabl e limits of the ins urance policy); Dixie Ins. Co. v. Federick , 449 So.2d 972 (Fla.App.1984) (same). Therefore, the holding of the Court of Appeals on this issue is affirmed. (FN4) 3
We also observe as to this point that had the trial been bifurcated and the jury first asked to determine the terms of the contracts of emplo yment and reporte d as it

did in fav or of the

Plaintiff s, the Trial Court would have been justified in direct ing a verdict as to the amount of damages sustained.
For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded for collection of the judgments and costs below. Costs of appeal are ad judged against Summers Hardware and Supply Company and its surety.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE