                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                NOVEMBER 5, 2003 Session

    C. B. RAGLAND COMPANY v. MAXWELL ROOFING AND SHEET
                        METAL, INC.

                  Direct Appeal from the Circuit Court for Davidson County
                          No. 00C-2582     Marietta Shipley, Judge



                     No. M2003-00283-COA-R3-CV - Filed March 2, 2004


This case arises out of a breach of contract by the Defendant for a roof Defendant installed on
Plaintiff’s freezer storage facility. The case was tried before a jury, who found the Defendant had
materially breached the contract between the parties and awarded Plaintiff damages in the amount
of $5,655.00. Subsequently, Plaintiff filed a motion to alter or amend the judgment or, in the
alternative, a motion for additur or new trial. The trial court denied the motion to alter or amend the
judgment but suggested an additur increasing the award to $30,655.00, which Defendant appealed.
For the following reasons, we affirm the decision of the trial court.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Thomas C. Corts, Julie Bhattacharya Peak, Nashville, TN, for Appellant

James B. Johnson, Nashville, TN, for Appellee

                                             OPINION

                                  Facts and Procedural History

       C.B. Ragland Company (“Ragland” or “Plaintiff”) operates a 25,000 square foot freezer
storage facility, which is designed to maintain temperatures at or around minus ten degrees
Fahrenheit (-10° F). The walls of the building were made of cinder blocks and contained insulation
inside the walls to maintain the internal sub-zero temperature. For several years, Ragland
experienced icing problems inside the freezer storage facility as there was ice buildup in the corners
and on the walls on the interior. In addition, moisture and water had built up on the exterior of the
walls. Ragland decided that the ice must be coming from its roof and, therefore, contacted Maxwell
Roofing and Sheet Metal, Inc. (“Maxwell Roofing” or “Defendant”) in 1997, requesting an estimate
for a reroofing contract. In October 1997, Maxwell Roofing sent a bid to Ragland, listing the tasks
that would be performed and a contract price of $151,314.00. Ragland agreed to this price, and
Maxwell Roofing promptly began working on the project, which was completed in February 1998.
Ragland paid Maxwell Roofing the contract price upon completion of the new roof.

        After Maxwell Roofing completed the new roof in February 1998, Ragland continued to have
icing problems on the interior of their freezer storage facility. It was later determined by Maxwell
Roofing that the vapor barrier inside the walls was connected and tied into the old roof. When
Maxwell Roofing replaced the old roof, it tore the vapor barrier in the walls. In addition, Maxwell
Roofing had used a polyurethane foam, an adhesive insulator, in only a few places on the roof and
not uniformly around the perimeter. Upon discovering that Ragland’s building continued to
experience problems, Ragland requested Maxwell Roofing to repair the roof, which Maxwell
Roofing attempted to do after inspecting the building. These repairs by Maxwell Roofing proved
to be unsuccessful as the icing problems continued on the interior of the building.

         The parties eventually agreed to hire a roofing consultant, Richard Baxter (“Baxter”), to
determine the cause of the icing problem in Ragland’s building. Baxter recommended that the vapor
barrier be extended further and that the walls of the building be coated in a sealant paint. Ragland
demanded that Maxwell Roofing be responsible for at least part of the expense of Baxter’s
recommendations, and Maxwell Roofing’s refusal prompted this lawsuit. Subsequent to the filing
of this lawsuit, Ragland employed Refrigerated Construction Services (“RCS”), a roofing contractor
located in Birmingham, Alabama, to remove any ice buildups and make any necessary repairs to the
building to prevent further icing problems. RCS’s repairs remedied many of the problems Ragland
was experiencing, though some icing problems continued. After RCS performed such repairs,
Ragland amended its complaint to ask for damages in the form of the cost of RCS’s services.1 After
a four-day jury trial, the jury returned a verdict finding the Defendant had materially breached the
contract and awarded Plaintiff the amount of $5,655.00. Plaintiff filed a motion to alter or amend
the judgment or, in the alternative, Plaintiff requested an additur or new trial. After a hearing on this
motion, the trial court judge denied the motion to alter or amend the judgment but suggested an
additur of $25,000, setting the award at $30,655.00.2 Defendant appealed to this Court and presents
the following issue for our review: whether the trial court erred when it suggested an additur,
increasing the judgment amount. Plaintiff presents an additional issue for our review: whether the
trial court erred when it denied Plaintiff’s motion to alter or amend the judgment. For the following
reasons, we affirm the decision of the trial court.




         1
                 Ragland paid RCS $77,010.00 for repairing the roof and $9,779.37 for removing the ice that had
already accumulated on the inside of the building.

         2
                 Though the trial court states that the total award is $30,565, it based this amount on the mistake that
the jury awarded Plaintiff $5,665 rather than $5,655, which was the actual jury award.

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                                                 Standard of Review

       When this Court reviews a trial court’s denial of a party’s motion to alter or amend a
judgment under Tenn. R. Civ. P. 59, we must determine whether the trial court abused its discretion.
Cox v. Stafford, No. E2002-01490-COA-R3-CV, 2002 Tenn. App. LEXIS 912, at *5-7 (Tenn. Ct.
App. Dec. 23, 2002). For questions pertaining to the propriety of an additur, this Court’s review is
de novo accompanied by a presumption of correctness unless the preponderance of the evidence is
otherwise. Thomas v. Crockett, No. 01-A-01-9608-CV-00380, 1997 Tenn. App. LEXIS 136, at *4-5
(Tenn. Ct. App. Feb. 28, 1997) (citing Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn. 1994));
Tenn. R. App. P. 13(d); Tenn. Code Ann. § 20-10-101(b)(2) (1994).

                                            Motion to Alter or Amend

         We begin with Plaintiff’s argument that the trial court erred when it denied Plaintiff’s motion
to alter or amend the judgment.3 Specifically, Plaintiff argues that the jury award is contrary to the
evidence that Plaintiff paid RCS a sum of $86,789.37, which Plaintiff claims as damages arising
from Defendant’s breach of the contract. Plaintiff contends that, because this amount was not
disputed at trial by the Defendant, the trial court judge should have increased this award, relying on
the Tennessee Supreme Court’s decision in Spence v. Allstate Ins. Co., 883 S.W.2d 586 (Tenn.
1994). That decision states that “a trial court may modify a judgment when the damages awarded
by the jury conflict with the undisputed facts concerning damages.” Spence, 883 S.W.2d at 595
(citing Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466 (Mo. Ct. App. 1986); Dixie Ins. Co. v.
Federick, 449 So. 2d 972 (Fla. Dist. Ct. App. 1984)) (emphasis ours). Plaintiff’s reliance on Spence
is misplaced. Spence does not require or mandate that a trial court alter a jury award if the award
conflicts with the undisputed evidence. Sholodge, Inc. v. Gary, No. 03A01-9605-CV-00180, 1996
Tenn. App. LEXIS 812, at *10-11 (Tenn. Ct. App. Dec. 16, 1996). Such a decision is within the trial
court’s discretion. We first note that the trial court judge, in her memorandum opinion, states that
the evidence for the amount of damages was not undisputed. Therefore, Spence does not apply to
this case. Even assuming, arguendo, that the evidence was undisputed by Defendant, after our
review of the record, we cannot say that the trial court abused its discretion when it refused to grant
Plaintiff’s motion to alter or amend the judgment. Therefore, we affirm the trial court’s decision on
this motion.

                                                         Additur

        Defendant argues on appeal that the trial court, acting as “thirteenth juror,” erred when it
suggested an additur of $25,000, raising the total award to the Plaintiff to $30,655.00. When
analyzing the propriety of an additur, this Court must utilize a three-step analysis. First, this Court,


         3
                    Plaintiff, in its brief, first argues that the trial court judge misapplied Spence v. Allstate Ins. Co. by
stating that the damages must be “liquidated” in order for Spence to apply. However, after reviewing the record, it
appears that the trial court judge correctly applied Spence, addressing the issue of whether the amount of damages was
disputed.

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pursuant to Tenn. Code Ann. § 20-10-101(b)(2), must determine whether the evidence preponderates
against the trial court’s suggestion of an additur. McKinney v. Smith County, No. M1998-00074-
COA-R3-CV, 1999 Tenn. App. LEXIS 745, at *11-12 (Tenn. Ct. App. Nov. 5, 1999) (quoting
Phillips v. Perot, No. 02A01-9704-CV-00094, 1998 Tenn. App. LEXIS 190, at *6-7 (Tenn. Ct. App.
Mar. 17, 1998)). If the evidence supports the suggestion of additur, this Court must then determine
if the trial court disagreed with the amount of the jury verdict. Id. at *12 (citing Perot, 1998 Tenn.
App. LEXIS 190, at *7; Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990)). If the trial
court disagreed with the amount of the jury verdict, then this Court must examine the relationship
between the amount of the jury verdict and the amount of the additur to determine whether the
additur totally destroys the jury verdict. Id. (citing Mattingly, 797 S.W.2d at 896)).

        First, this Court is of the opinion that the evidence does not preponderate against the trial
court’s suggestion of an additur. During the trial, the Plaintiff entered evidence showing that it had
paid RCS a sum of $86,789.37 for repairs to Plaintiff’s freezer storage facility in order to prevent
any future icing problems. Therefore, given that Defendant presented testimony that it caused no
damages to Plaintiff’s building, the Plaintiff’s estimated damages ranged from zero to $86,789.37.
Though the trial court’s additur significantly increased the amount of the jury verdict, the judgment
remained within the range of estimated damages. See id. at *13-14. Therefore, this Court cannot
say that the evidence preponderates against the trial court’s suggestion of an additur. See id.

        Next, this Court must review the trial court’s reason for the additur, because a trial court must
disagree with the amount of the jury verdict in order for an additur to stand. “[A] trial court may
suggest an additur when a jury verdict is within the range of reasonableness of the credible proof but
the court is of the opinion that the verdict is inadequate.” Perot, 1998 Tenn. App. LEXIS 190, at *5
(citing Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 330 (Tenn. 1996)). In her memorandum
opinion, the trial judge states that, “although inside the range of reasonableness, [the jury verdict]
was inadequate” and, therefore, the trial court suggested an additur of $25,000. In addition, the trial
judge made statements during the hearing on the motion that she could find no justification for the
amount of the jury verdict. Although the trial judge expressed concerns of judicial economy if a new
trial were to be ordered, the record supports the notion that the trial judge did disagree with the jury
verdict amount.

        Finally, this Court must determine whether the suggested additur destroys the jury verdict.
As this Court has noted before, we are reluctant to “establish a numerical standard for reviewing
additur and remittitur cases.” McKinney, 1999 Tenn. App. LEXIS 745, at *14 (citing Foster v.
Amcon Int’l, Inc, 621 S.W.2d 142, 148 n.9 (Tenn. 1981); Guess v. Maury, 726 S.W.2d 906, 913
(Tenn. Ct. App. 1986); Lebovitz v. Bearden, No. 02A01-9211-CV-00308, 1993 Tenn. App. LEXIS
705, at *11-12 (Tenn. Ct. App. Nov. 16, 1993)). We note a concurring opinion of one judge who
suggests:

        Perhaps the best way to reconcile this case with other similar cases is to place the emphasis
        on determining whether or not the additur or remittitur would result in an award not only
        proportionally different from the jury verdict but also substantially different in absolute


                                                  -4-
        terms. That is to say, verdicts of relatively small amounts of money might be granted
        additurs or remittiturs of greater percentages than verdicts of relatively large amounts.

Perot, 1998 Tenn. App. LEXIS 190, at *11-12 (Lanier, Sp. J., concurring). We cannot say that the
trial court’s suggested additur bears so little relation to the jury’s verdict that it totally destroys the
verdict. For these reasons, we affirm the trial court’s suggestion of additur.

                                              Conclusion

       For the reasons stated above, we affirm the decision of the trial court. Costs of this appeal
are taxed to the Appellant, Maxwell Roofing and Sheet Metal, Inc., and its surety for which
execution may issue if necessary.



                                                         ___________________________________
                                                         ALAN E. HIGHERS, JUDGE




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