               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE


THE REALTY SHOP, INC.,                          )
                                                                FILED
                                                )                  June 4, 1999
       Plaintiff/Appellee,                      )
                                                )              Cecil Crowson, Jr.
VS.                                             )             Appellate Court Clerk
                                                )
RR WESTMINSTER HOLDING, INC.,                   )     Davidson Chancery
                                                )     No. 94-293-I
       Defendant/Appellant,                     )
                                                )
and                                             )
                                                )     Appeal No.
JOHN S. CLARK CO., INC.;                        )     01A01-9609-CH-00418
SENASH, INC.; and                               )
CLARENDON NATIONAL INS. CO.,                    )
                                                )
       Defendants.                              )



         OPINION DENYING PETITION FOR REHEARING


       The Realty Shop, Inc. has filed a Tenn. R. App. P. 39 petition requesting this
court to reconsider its May 11, 1999 opinion. We requested RR Westminster
Holding, Inc. to respond to the petition and have now received its response. Based
on our consideration of the petition, the response, and the record filed in this court,
we find that the petition is without merit and should be denied.


                                           I.


       We turn first to The Realty Shop’s assertion that we invaded the province of
the trier-of-fact by addressing and deciding the damage question. The Realty Shop
insists that we should not have undertaken to calculate the damages in light of the ten
change orders because the trial court did not address this question and because the
parties elected not to include in the appellate record many of the exhibits filed in the
trial court.




                                          A.
      The Tennessee Rules of Appellate Procedure require the parties, not the
appellate court, to assure that the record on appeal contains a “fair, accurate, and
complete account of what transpired with respect to those issues that are the bases of
appeal.” Tenn. R. App. P. 24(a) places the responsibility for the contents of the
record, as an initial matter, with the appellant. However, the appellee must also
designate additional parts of the trial court record to be included in the record on
appeal if it determines that other parts of the record are necessary. In light of the
plain requirements of Tenn. R. App. P. 24(a), appellate courts presume that the parties
have provided them with an appellate record that enables them to address and decide
the issues being raised on appeal.


      The parties’ decisions concerning the completeness of the record are, of course,
driven by the issues to be raised on appeal. RR Westminster’s May 20, 1996
statement of issues on appeal did not indicate that it intended to take issue with the
trial court’s calculation of damages. However, in its brief filed in this court on
November 19, 1996, RR Westminister’s third issue was “Whether the Trial Court
Erred in its Calculation of Damages.” In the portion of its brief relating to this issue,
RR Westminister asserted that the maximum amount of damages that The Realty
Shop could recover was $70,693 – SENASH’s net profit on the sale of the Thompson
Station project to Tennessee Equity Fund. This argument necessarily rested on RR
Westminster’s assertion that all ten of the SENASH-Clark change orders were proper.


      On December 31, 1996, The Realty Shop moved to supplement the appellate
record with twenty items because RR Westminister had “advanced arguments on
appeal which were not referred to in their statement of issues . . ..” Specifically, The
Realty Shop pointed out that RR Westminister had argued in its brief that “the trial
court erred in its computation of damages because had their [sic] been specific
performance of the Option Agreement The Realty Shop’s damages would have been
substantially reduced.” The trial court authorized the filing of the supplemental
record, and this court considered the contents of not only the original record on
appeal but also the contents of the supplemental record in preparing its May 11, 1999
opinion.


      We have concluded that The Realty Shop was fully apprised that RR
Westminister was asserting on appeal not only that the theoretical and factual basis

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for the trial court’s damage award was erroneous but also that the ten SENASH-Clark
change orders were valid and that The Realty Shop’s maximum recovery should be
$70,693. In light of the lengthy portions of RR Westminster’s brief devoted to the
ten change orders and the trial court’s calculation of the damages, we find that The
Realty Shop was not unfairly prevented from briefing or arguing the factual and legal
significance of the ten change orders on appeal.


                                           B.


      The Realty Shop also asserts that this Court should have remanded the case to
the trial court after we determined that the trial court had erred by concluding that The
Realty Shop was estopped to rely on the written change order requirement in the
option agreement. It insists that the trial court, rather than this court, should have
determined the “accuracy and validity of the change orders and the applicability of
those change orders to the Option Agreement” because the trial court “never
considered or decided the issue of the accuracy and validity of the change orders
pursuant to the Option Agreement . . ..”


      Tenn. R. App. P. 13 and 36 control the proper scope of appellate review.
While Tenn. R. App. P. 13(b) ordinarily limits the scope of review to the issues raised
by the parties themselves, it also permits appellate courts to consider issues not raised
by the parties to prevent needless litigation, to prevent injury to the interests of the
public, or to prevent prejudice to the judicial process. In addition, Tenn. R. App. P.
36(a) empowers appellate courts to “grant the relief on the law and facts to which the
party is entitled or the proceeding otherwise requires . . ..” Taken together, these
rules permit the appellate courts to grant complete relief to the parties as long as they
have been given fair notice and an opportunity to be heard on the dispositive issues.


      Tennessee’s appellate courts have long had the responsibility to render the
judgment that the trial court, sitting as the trier-of-fact, should have rendered. See
Perry v. Carter, 188 Tenn. 409, 411-12, 219 S.W.2d 905, 906 (1949); Toomey v.
Atyoe, 95 Tenn. 373, 381-82, 32 S.W. 254, 256 (1895). This responsibility includes
entering judgments based on the preponderance of the evidence and the applicable
law. See Roberts v. Robertson County Bd. of Educ., 692 S.W.2d 863, 874 (Tenn. Ct.
App. 1985). Thus, as Judge Tomlin has noted, we may elect to wrestle with the

                                           -3-
octopus rather than remand the case for further time-consuming and costly wrestling
in the trial court. See American Bldgs. Co. v. DBH Attachments, Inc., 676 S.W.2d
558, 562 (Tenn. Ct. App. 1984). We should, however, stay our hand when rendering
a judgment pursuant to Tenn. App. P. 36(a) would be unfair to the parties. See
Cooper v. Polos, 898 S.W.2d 237, 242 (Tenn. Ct. App. 1995) (declining to grant final
relief based on evidence that the trial court had excluded).


      We find no basis for declining to render a final judgment between the parties
based on the facts in this record. The damage question was raised on appeal, and this
is not a case in which the parties were prevented from a full and fair development of
the facts. The propriety and effect of the ten SENASH-Clark change orders had been
a disputed issue between the parties from the earliest stages of the litigation, and both
parties were given essentially free reign to present evidence concerning all matters
pertinent to the change orders during the trial. The Realty Shop contested the validity
and efficacy of the change orders at trial, and RR Westminster’s appellate brief put
The Realty Shop on notice that the change orders were an essential part of its
challenge to the trial court’s damage award. Accordingly, we perceive no prejudice
to The Realty Shop resulting from our decision to grant the parties the relief to which
they are entitled under the law and the facts of this case in accordance with Tenn. R.
App. P. 36(a).


      The fact that our May 11, 1999 decision is made on a partial record stems
directly from the tactical decisions of both The Realty Shop and RR Westminster to
pursue this appeal with less than a complete record. The parties cannot wait to
reverse their field on the question of the adequacy of the record until after they
receive an opinion that is not to their liking. Accordingly, we decline to find that the
incompleteness of the record requires us to remand the case to the trial court for
further proceedings. Granting that sort of relief would enable The Realty Shop to
profit from its own strategic decision in contravention of Tenn. R. App. P. 36(a).




                                           II.


                                           -4-
       The Realty Shop also asserts that we have overlooked or misconstrued material
facts and that we have mistakenly applied the relevant legal principles. We have
carefully reviewed our May 11, 1999 opinion as well as the record on appeal. This
record consists of the complete transcript of the trial and 168 of the 330 exhibits filed
during the proceeding.1 We have concluded that we have neither overlooked nor
misconstrued the facts in the record on appeal. We have also concluded that we
would not have altered any of the factual findings and legal conclusions in our May
11, 1999 opinion had the parties included the remaining 162 exhibits in the record on
appeal. We adhere to our original decision that the evidence preponderates in favor
of the conclusion that the work covered by the ten change orders was necessary, that
the work was actually performed, that the work benefitted the project, and that Clark
actually paid its subcontractors and suppliers for the work.


       Accordingly, we respectfully deny the petition for rehearing. We also tax the
costs incident to this rehearing to The Realty Shop, Inc. for which execution, if
necessary, may issue.



                                            _________________________________
                                            WILLIAM C. KOCH, JR., JUDGE


CONCUR:


_________________________________
SAMUEL L. LEWIS, JUDGE


_________________________________
BEN H. CANTRELL, JUDGE




       1
        The Realty Shop points out in its petition for rehearing that 93 of the 162 exhibits not
submitted to this court dealt with matters pertaining to the change orders. We have no doubt that
The Realty Shop is correct because we have read the transcript which sheds light on the substance
of the omitted exhibits.

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