                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________

J. C. BRADFORD & COMPANY,
a Tennessee Limited Liability
                                                                           FILED
Company,
                                                                          December 10, 1998
       Plaintiff-Appellant,
                                                                        Cecil Crowson, Jr.
Vs.                                                 Shelby Chancery No. Appe llate Court C lerk
                                                                        107359-3
                                                    C.A. No. 02A01-9801-CH-00006
SOUTHERN REALTY PARTNERS,
a Tennessee General Partnership,
and WESTON MANAGEMENT
COMPANY, A Delaware Corporation,

      Defendants-Appellees.
____________________________________________________________________________

                FROM THE SHELBY COUNTY CHANCERY COURT
              THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR




            Carl H. Langschmidt, Jr.; Bobby M. Leatherman; Parke S. Morris;
          Armstrong Allen Prewitt Gentry Johnston & Holmes, PLLC, of Memphis
                                      For Appellant

                        J. Alan Hanover; James R. Newsom III;
                   Hanover, Walsh, Jalenak & Blair, PLLC, of Memphis
                         For Appellee, Southern Realty Partners

                             Martin W. Brown of Memphis
                       For Appellee, Weston Management Company


                              VACATED AND REMANDED

                                       Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
     This is a case involving allegations of fraudulent and negligent misrepresentation and

violation of the Tennessee Consumer Protection Act. Plaintiff, J.C. Bradford & Co. (Bradford),

appeals from the trial court’s decree dismissing its complaint and awarding judgment on the
counterclaims of defendants, Southern Realty Partners (Southern) and Weston Management

Company (Weston).

        In late 1993, Bradford began negotiations with Weston, who was acting as agent for

Southern, to lease a building in Memphis. The agreement in final form required Southern to

build an office building to fit Bradford’s needs in exchange for a ten (10) year lease. During the

lease negotiations, Bradford agreed to an “expense stop” of $4.35 per square foot, and this is the

subject of the dispute between the parties.

        An “expense stop” is the maximum amount of the operating expenses that the landlord

agrees to pay.1 In this case, the initial proposal required Southern to pay all operating expenses

up to $4.50 per square foot. Bradford also wanted to cap the “expense stop” at a five (5%)

percent increase after the first year. After lengthy negotiations, Weston would not agree to the

cap on taxes, insurance, and utilities because it had no control over an increase in these costs.

However, Weston did agree to a reduction in their management fee and base rent in exchange

for reducing the “expense stop” to $4.35. This final proposal was accepted by Bradford, and

according to the lease, if the operating expenses exceeded the “expense stop” Bradford would

be required to pay the excess.

        This dispute arises out of the negotiations concerning the “expense stop.” Southern

purchased the land upon which the office building in question is located to use as a speculative

investment. It hired Weston as its agent to find a business to lease the land. In late 1993, David

Peck (Peck), Weston President and CEO, contacted Bradford’s Memphis area manager for the

purpose of negotiating a build-to-suit office building on the land owned by Southern. After

Bradford explained to Peck that it was interested in a one-story, residential style office building,

Peck attempted to determine an estimate of the operating expenses for the completed project.

He obtained information on the operating expenses of twelve other East Memphis office

complexes, and attempted to adapt those numbers to the type of building that Bradford had

requested. At that time, neither Bradford nor Weston knew the size nor specifications of the yet

unplanned building.

        Based upon his examination of operating expenses of the twelve buildings, Peck sent a


       1
        Operating expenses in a lease such as this one include property taxes, utilities, insurance,
garbage collection, janitorial service, etc.

                                                 2
written proposal to Bradford’s Memphis area manager on January 6, 1994. The proposal stated,

“[m]y best estimate for the operating expenses for the first twelve (12) months of occupancy will

be $4.50 per square foot.”2 Both parties negotiated the terms of the lease, culminating in a final

lease signed on March 28, 1994 that had both a lower base rent and an “expense stop” of $4.35.3

Construction of the office building began on May 16, 1994, and the project was completed and

Bradford moved in by December 1, 1994.

       The first year operating expenses turned out to be $7.05 per square foot. 4 Because the

operating expenses exceeded the “expense stop” by $2.70, Bradford owed Southern an extra

$45,900 on the first year lease, and an estimated $500,000 over the entire term of the lease.5

       After Weston sent it an invoice for the operating expenses exceeding the “expense stop,”

Bradford refused to pay and filed suit against Southern alleging fraud and negligent

misrepresentation on the part of Peck, as an agent of Southern. Bradford claimed that Peck knew

or should have known that operating expenses would be much higher than his estimation of the

“expense stop.” Initially, Bradford sought reformation of the lease by modifying the “expense

stop” to a number much closer to actual expenses, and sought damages, and injunctive relief.

The complaint also requested that Bradford be allowed to deposit the additional rent that was

allegedly due under the lease into the court until the resolution of all disputes. The Chancellor

granted Bradford’s request that it be allowed to continue to occupy the building and permitted

it to pay the additional rent into the court clerk’s office. However, the trial court granted

summary judgment on Bradford’s prayer for reformation.6 Bradford was allowed to amend the

complaint to add a claim under the Tennessee Consumer Protection Act (TCPA). Bradford

continued, and is presently, occupying the office building and paying the base rent to Southern.

       Southern answered Bradford’s amended complaint and specifically denied that its agent,


       2
       A second more detailed written proposal was sent to Bradford on February 10, 1994
which once again stated that $4.50 per square foot was the best estimate of first year operating
expenses.
       3
         Weston agreed to lower the base rent and reduce its management fee by $.15 per square
foot for a reduction in the “expense stop” from $4.50 to $4.35.
       4
          The actual operating expenses exceeded the estimated “expense stop” primarily because
of utilities and taxes. Taxes made up approximately 70% of the excess.
       5
           The building was approximately 17,000 square feet in area. (17,000 * $2.70 = $45,000)
       6
           No issue is presented concerning this action of the trial court.

                                                  3
Weston, made any misrepresentations concerning the “expense stop” and further claimed that

Bradford did not justifiably rely on Peck’s statements concerning the estimate of operating

expenses. Southern also filed a counterclaim against Bradford alleging that it had defaulted by

refusing and/or failing to pay the additional rent due under the lease. The counterclaim requested

the court to award it the additional rent, interest, late fees, and attorneys’ fees. Following

Southern’s counterclaim, Bradford joined Weston as a party to this lawsuit on November 15,

1996.

        The parties appeared for trial without a jury on September 22, 1997. At the conclusion

of rather extensive and somewhat convoluted opening statements, the Chancellor ruled from the

bench that Bradford’s complaint be dismissed, that Weston’s counter-complaint for attorney fees

in its own right be dismissed, and that judgment be awarded to Southern on its counter-

complaint. Subsequently, after a hearing to determine the amount of Southern’s attorney fees,

the Chancellor entered a final decree in accordance with his prior ruling. Bradford has appealed

and presents the following issues as stated in its brief:

                1. Did the trial court err in failing to hold a trial?

                2. Whether the facts as stipulated establish a claim for fraudulent
                misrepresentation, negligent misrepresentation, and/or a violation
                of the Tennessee Consumer Protection Act?

                3. Whether the trial court improperly took judicial notice of a fact
                never stipulated to by the parties?

                4. Whether the trial court improperly granted Southern attorneys’
                fees?

        Weston also presents an issue for review of whether the trial court erred in denying an

award of reasonable attorney fees and costs pursuant to Tennessee Consumer Protection Act,

T.C.A. § 47-18-109 (e)(2) (1996).

        We will now consider the issues.

                                 FAILURE TO HOLD A TRIAL

        Bradford asserts that the trial court erred by failing to hold a trial. Although Bradford

relies upon a federal case from the Eleventh Circuit in support of its assertion that the trial court

cannot voluntarily direct a judgment for a party following the party’s opening statement, we

believe it more appropriate to consider that proposition in light of the decision of our Supreme

Court in Harris v. Baptist Mem. Hosp., 574 S.W.2d 730 (Tenn. 1978). In Harris, a nurse’s aide

                                                  4
sued the hospital for worker’s compensation benefits, and the hospital counterclaimed seeking

a setoff for the amount of sick benefits paid to the plaintiff. After opening statements of

counsel, the trial court, sua sponte, dismissed the action. On appeal, the Supreme Court reversed

stating:

                          We are of the opinion, however, that the trial judges of
                  this State are not authorized to order the involuntary dismissal of
                  an action at trial upon the sole basis of the opening statements of
                  counsel.

                                  *               *               *

                          Of critical importance here is the nature of opening
                  statements. They are intended merely to inform the trial judge
                  and jury, in a general way, of the nature of the case and to outline,
                  generally, the facts each party intends to prove. Such statements
                  do not amount to stipulations and certainly are not a substitute for
                  the pleadings or for evidence. See 75 Am.Jur.2d Trials § 202
                  (1974). It is easy to see that an involuntary dismissal upon the
                  basis of the opening statements of counsel alone may effectively
                  deny litigants the opportunity to be heard or to fully present the
                  facts and evidence in the case. For this reason, we are unwilling
                  to expand the provisions of Rule 41.02 to authorize trial judges to
                  order involuntary dismissals upon opening statements only.

574 S.W.2d at 731-32.

           Southern and Weston assert that the trial court did not direct judgment at the conclusion

of opening statements, but considered the opening statements as stipulations of fact and rendered

judgment based upon the stipulations of the parties. It is somewhat difficult to determine exactly

what happened at the trial setting and illustrates that the Rules of Civil Procedure should be

followed and cases tried in the usual and proper manner. As our Supreme Court said in Harris,

the opening statements should be confined to outlining in a general way the nature of the case

and the facts each party intends to prove. The case should then proceed as an evidentiary hearing

in order for the trial court to make determinations including, of course, the credibility of

witnesses. While oral stipulations are binding upon the parties and may be the basis of a ruling

by the court, Department of Highways v. Urban Estates, Inc., 465 S.W.2d 357, 360 (Tenn. App.

1971), there must be a clear understanding of what the stipulations are. While it would appear

from some of the statements in the record that Bradford’s counsel appeared to agree with the

statements concerning these facts, he also added: “It’s all in the documents.” After the

Chancellor stated his ruling, the following exchange took place:

                  MR. LEATHERMAN: Your Honor, under these facts here, I just,


                                                   5
              as far as I am -- I am thinking on appeal here. And maybe we can
              work this out later, but I don’t know how this will shake out.
              These statements that we have been making have come from
              various records and letters.

              THE COURT: You are going to introduce the records and
              letters to support all of that, because I knew -- there is not going
              to be a problem about that.

              MR. LEATHERMAN: Okay.

              THE COURT: You gentlemen are men of honor among
              yourselves. And on top of that, each of you agreed with other
              most of the time, so there is not going to be a disagreement about
              where you got it from.

              MR. HANOVER: I don’t think there are any questions about any
              of the letters we talked about.

              THE COURT: Or any of the points. You got some of this from
              someone’s statements in depositions as well.

              MR. LEATHERMAN: Right.

              MR. HANOVER: That is true.

              THE COURT: So ya’ll are on the same wavelength as the Court,
              which is, y’all realize you may have differing opinions, but you
              understand that you can’t have a different set of facts.

              MR. HANOVER: I want to say this on behalf of Mr. Leatherman,
              and I am sure Mr. Brown will echo this: In my dealing with Mr.
              Leatherman since he has been in the case we have made a lot of
              agreements and I have never worried one minute about anything
              that he has said and I am sure that he hasn’t worried about
              anything that I have said.

              MR. BROWN: I would certainly second that.

              MR. LEATHERMAN: The same goes for me.

              THE COURT: And I am sure that will continue.

              MR. LEATHERMAN: Just for the record, we are going to be
              submitting deposition testimony and documents.

              THE COURT: Absolutely, gentlemen. That is clearly -- I
              understood that when y’all told me some of the things you told
              me as facts, they weren’t because both of y’all had visions at the
              same time from on high. I know that it came from either
              demonstrative pieces of evidence, such as letters or appraisals, or
              that it came, which most of it I know came, from what you have
              told me, from depositions. So that is no problem whatsoever.

Emphasis added.

       It appears from this exchange that the Chancellor recognized that further proof would be

forthcoming and authorized Bradford’s counsel to file the proof for the record. Subsequently,


                                               6
when Bradford’s counsel filed various depositions and documents, Southern’s counsel moved

to strike the depositions. The trial court granted the motion, and the depositions were not made

part of the record.

       This development clearly illustrates the precarious nature of proceedings that do not

conform to the rules of procedure. This case deals with allegations of fraud, intentional

misrepresentation, negligent misrepresentation, and also issues concerning attorney fees pursuant

to contract and pursuant to the Tennessee Consumer Protection Act. It is difficult to understand

how the case could be tried without some consideration of witness credibility. Considering the

nature of this case, this Court is of the opinion that complete justice cannot be had because of

the defects in the record. See T.C.A. § 27-3-128 (1980).

       Accordingly, the judgment of the trial court is vacated, and this case is remanded to the

trial court for further proceedings as are necessary. Costs of the appeal are assessed one-half to

appellant and one-half to appellees. The remaining issues are pretermitted.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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