                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                           Assigned On Briefs April 11, 2014 Session

       HOWARD L. BOYD v. AMANDA MANDY WACHTLER, ET AL.

                 Direct Appeal from the Circuit Court for Davidson County
                       No. 12-C-1398     Thomas W. Brothers, Judge


                     No. M2013-01545-COA-R3-CV - Filed June 26, 2014


The jury found that Defendants were liable for damages arising from breach of contract and
that Plaintiff was liable for damages arising from negligence. It also found that Defendants
were entitled to treble damages under Tennessee Code Annotated § 62-2-503. Plaintiff
appeals. Finding material evidence to support the jury verdict, we affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Howard L. Boyd, Pro Se

Paul M. Buchanan, Nashville, Tennessee, for the appellees, Amanda Mandy Wachtler and
Gracie Wachtler.

                                   MEMORANDUM OPINION 1

      This dispute arises from a 2011 oral agreement between Plaintiff Howard L. Boyd
(Mr. Boyd) and Defendants Amanda “Mandy” M. Wachtler (Mrs. Wachtler) and Gracie


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
Wachtler (Ms. Wachtler; collectively, “the Wachtlers”) whereby Mr. Boyd agreed to perform
renovations to real property owned by Ms. Wachtler. In August 2011, Ms. Wachtler
purchased a home in Nashville. Her mother, Mrs. Wachtler, was the real estate agent who
facilitated the purchase. Mrs. Wachtler contacted Mr. Boyd about performing and overseeing
renovations and various repairs to the home, which ultimately was to include painting and
carpentry, plumbing, kitchen remodeling, electrical work, ceiling repair, refinishing floors,
tiling and carpet removal. The parties’ oral agreement did not include a final cost estimate
or agreed price. On October 21, 2011, Ms. Wachtler advised Mr. Boyd by email that his
services were “no longer needed.” On October 24, Ms. Wachtler again emailed Mr. Boyd
and stated that he “may have through November 6 to complete the job” and asked him to
resume work the following day. Mr. Boyd advised Ms. Wachtler by return email that,
“because [she] terminated [his] services, he [had] already began work on another job” and
that she would therefore “have to wait until [he was] finished with [the other] client” before
work could be resumed. He also advised Ms. Wachtler that he had not been paid. The record
contains an invoice from Mr. Boyd to the Wachtlers in the amount of $5,000 and indicates
a prior payment in the amount of $2,009.57. Ms. Wachtler did not tender payment, Mr. Boyd
did not resume work, and Ms. Wachtler hired J. Myers Construction Services to complete the
renovations and repairs.

       In January 2012, Mr. Boyd filed a civil warrant in the Nashville Metropolitan General
Sessions Court alleging the Wachtlers were liable for breach of contract and the failure to pay
for services.    Ms. Wachtler counter-claimed for breach of contract, negligence,
misrepresentation, negligent misrepresentation, and an award of treble damages under
Tennessee Code Annotated § 62-6-503(e). The general sessions court dismissed both claims
and Mr. Boyd filed a notice of appeal to the Circuit Court for Davidson County. In July
2012, Mr. Boyd filed his first amended complaint and asserted claims of breach of contract
and failure to pay for services rendered. In December 2012, Mr. Boyd again amended his
complaint to assert a claim for unjust enrichment. In December 2013, Ms. Wachtler
amended her complaint to allege that Mr. Boyd had fraudulently invoiced for work that he
did not perform.

       The matter ultimately was submitted to the jury on the parties’ cross-claims for breach
of contract and Ms. Wachtler’s claims of misrepresentation, negligence, and treble damages
pursuant to Tennessee Code Annotated 62-6-503(e).2 Following a trial on March 18-19,
2013, the jury found the Wachtlers liable for breach of contract and found that Mr. Boyd was
not guilty of breach of contract. The jury also found that Mr. Boyd was not guilty of
misrepresentation but that he was liable for negligence. The jury awarded Mr. Boyd damages


        2
         The trial court granted the Wachtlers’ motion to dismiss Mr. Boyd’s claim for unjust enrichment,
made at the close of Mr. Boyd’s proof. (TR at 243)

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in the amount of $4,989.57. The jury determined Ms. Wachtler was entitled to damages in
the amount of $2,388 with respect to her claim of negligence, and that she was entitled to
treble damages under section 62-6-503(e). The jury accordingly awarded Ms. Wachtler
damages in the amount of $7,164. The trial court entered judgment on the jury verdict on
March 26, 2013. The trial court approved the award of treble damages and determined that
the damages awarded to Mr. Boyd should be subtracted as a set-off against the damages
awarded to Ms. Wachtler, resulting in an award of damages to Ms. Wachtler in the amount
of $2,174.43. Mr. Boyd filed a motion to amend the judgment or for a new trial, which the
trial court denied by order entered May 31, 2013. Mr. Boyd filed a timely notice of appeal
to this Court.

                                      Issues Presented

       Mr. Boyd presents the following issues for our review, as stated by him:

       (1)    Whether there is material evidence in the record to support the jury’s
              finding that the oral agreement between [Mr.] Boyd and [Ms.] Wachtler
              was for $3,000 or more.

       (2)    Whether [Ms.] Wachtler asserted a cognizable claim for negligence
              where there was a contract between the parties and no allegation of
              property damage.

       (3)    Whether the jury verdict is contradictory and irreconcilable.

       (4)    [Whether] [Ms.] Wachtler and/or Jody Myers issued false testimony
              while under oath.

                                    Standard of Review

        On appeal from a jury trial, we will not set aside the jury’s findings of fact unless
there is no material evidence to support the verdict. Goodale v. Langenberg, 243 S.W.3d
575, 583 (Tenn. Ct. App. 2007); Tenn. R. App. P. 13(d). Upon review, this Court will not
re-weigh the evidence, but will take the strongest view possible of the evidence in favor of
the prevailing party, and discard evidence to the contrary. Id. We will allow all reasonable
inferences to uphold the jury’s verdict, setting it aside only if there is no material evidence
to support it. Id. Our review of the trial court’s conclusions of law in a jury trial, however,
is de novo upon the record, with no presumption of correctness. Tenn. R. App. P. 13(d);
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 28 (Tenn. 1996).



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                                          Discussion

        We begin our discussion of the issues presented for review by noting that Mr. Boyd
has proceeded pro se throughout this matter and that, although the Wachtlers have been
represented by counsel, the matter proceeded relatively informally with respect to the
pleadings and motions filed in the trial court. The Wachtlers did not incorporate the
allegations made in their general sessions complaint into the amended complaint they filed
in the circuit court, for example, but merely alleged fraud in their amended complaint and did
so without specificity.3 Similarly, the argument section of the Wachtlers’ brief to this Court
consists of approximately one and one-half pages wherein the Wachtlers generally assert that
Mr. Boyd’s arguments are without merit and are “absurd.” With this background and the
standard of review applicable to a trial by jury in mind, we turn to the issues presented for
our review.

       We turn first to Mr. Boyd’s assertion that the record does not contain material
evidence to support a finding that the parties’ contract was for an amount exceeding $3,000.
Mr. Boyd’s argument with respect to this issue is that, in order to assess treble damages
pursuant to Tennessee Code Annotated § 62-6-503(e), “the[ j]ury necessarily determined that
[he] had improperly engaged in the home improvement business without a license.” Mr.
Boyd’s argument, as we understand it, is that because section 62-6-501(4)(B) provides that
“home improvement” does not include any home improvement for which the contract price
is $3,000 or less, the jury necessarily and erroneously found that the contract price between
the parties was for an amount in excess of $3,000. Mr. Boyd relies on Helton v.
Angelopoulos, 629 S.W.2d 15 (Tenn. 1982), for the proposition that, “when determining
whether a contract price exceeds a statutory limit” the courts “examine what the contract
price was believed to be at the commencement of the contract” rather “at what the contract
was ultimately paid.”

       The question presented in Helton was whether a licensed general contractor was
precluded from recovering amounts due on a building contract when the costs of construction
exceeded the $250,000 limit, plus the ten percent permitted tolerance, of the contractor’s
license. Helton v. Angelopoulos, 629 S.W.2d 15, 16 (Tenn. 1982). The parties’ contract in
that case was a standard cost-plus-fee agreement and did not specify a maximum cost. Id.
The project was undertaken on a “fast track” method and the property owners made a number
of changes and additions and separately contracted for various services. The Helton court
noted that, “under [the] circumstances it would have been extremely difficult for any
contractor to keep an accurate account of what the costs of the project were.” Id. at 17. The


       3
        The Wachtlers’ claims clearly were tried by consent as provided by Tennessee Rule of Civil
Procedure 15.02.

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final cost in that case exceeded $288,000. The supreme court held that the contractor was
entitled to recover notwithstanding that the final cost exceeded the limits of his license. Id.
at 18.

        In Helton, however, it was undisputed that the contractor was licensed, that the
architects had provided a preliminary cost estimate in the amount of $185,000, and that the
contractor had submitted a bid in the amount of $213,000, which included his fee. Id. at 16.
The Helton court emphasized that “there [was] no indication that the contractor . . . was
guilty of negligence in submitting his bid” notwithstanding that the bid was cost-plus and did
not specify a ceiling amount. Id. at 19. It further noted that the outcome would be different
if a contractor “fraudulently, or in bad faith, or through collusion with an architect or
engineer, submitted a bid upon a project obviously beyond the monetary limit of his
license[.]” Id.

       Helton does not stand for the proposition that a contractor may avoid the statutory
licensing scheme merely by entering into an agreement, oral or written, for an undetermined
amount regardless of the scope of the project. Rather, there is an element of good faith in
the analysis. The question in this case is whether material evidence supports the jury’s
implicit finding that the parties realistically and in good faith anticipated that the project
would exceed $3,000. In light of the evidence in the record, including Mr. Boyd’s invoice
for only a portion of the complete project, we find material evidence to support the jury’s
finding.

       We turn next to Mr. Boyd’s assertion that Ms. Wachtler failed to assert a cognizable
claim for negligence. Mr. Boyd’s argument with respect to this issue is that Ms. Wachtler
failed to demonstrate that Mr. Boyd breached any duty other than those imposed by his
contractual obligation to perform work in a workman like manner, free of any defects. Mr.
Boyd’s argument, as we understand it, is that Ms. Wachtler failed to state a claim for
negligence as a matter of law and that the claim should not have been submitted to the jury.

        Upon review of the record, we observe that the jury charge in this case included
instructions on the parties’ cross-claims for breach of contract and Ms. Wachtler’s claims of
negligence. Mr. Boyd did not move the trial court to dismiss Ms. Wachtler’s claim of
negligence for failure to state a claim, nor did he assert that the claim was barred as a matter
of law. Mr. Boyd did not object to the jury charges. Mr. Boyd does not refer us to anything
in the record to demonstrate that this issue was raised in the trial court. Issues not raised or
asserted in the trial court may not be raised for the first time on appeal.4 Barnes v. Barnes,


       4
           We observe that Mr. Boyd asserted in his motion to alter or amend the judgment or for a new trial
                                                                                              (continued...)

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193 S.W.3d 495, 501 (Tenn. 2006). Mr. Boyd did not raise the issue of failure to state a
claim in the trial court and may not raise it for the first time on appeal.

       We next turn to Mr. Boyd’s assertion that the jury verdict finding him not liable for
breach of contract but liable for negligence is contradictory and irreconcilable. In his brief,
Mr. Boyd assets that the Wachtlers’ breach of contract claims were predicated on their
assertion that he failed to complete the work and that some of the work was not performed
in a workman like manner. He asserts that, because the jury found that he did not breach the
contract, its finding that he negligently performed the work is contradictory and should be
reversed.

       It is well-settled that inconsistent and irreconcilable verdicts cannot stand. Concrete
Spaces v. Sender, 2 S.W.3d 901, 911 (Tenn.1999) (citations omitted). “Where a judgment
is based upon inconsistent findings by a jury it is the duty of the appellate court to reverse
and remand the case for a new trial.” Id. (citations omitted). We have a countervailing duty,
however, to “whenever possible, give effect to a jury’s verdict[,]” and “[c]ases involving
inconsistent jury verdicts are no exception[.]” Rutherford v. Southern College of Optometry,
No. W2008-02268-COA-R3-CV, 2009 WL 5064972, at *8 (Tenn. Ct. App. Dec. 28, 2009).
As we noted in Rutherford:

        It is the duty of the court in construing verdicts to give them the most favorable
        interpretation and to give effect to the intention of the jurors if that intention
        be permissible under the law and ascertainable from the phraseology of the
        verdict. If after an examination of the terms of the verdict the court is able to
        place a construction thereon that will uphold it, it is encumbent [sic] upon the
        court to do so.

Id. at *9 (quoting Templeton v. Quarles, 52 Tenn. App. 419, 374 S.W.2d 654, 660 (Tenn. Ct.
App.1963) (citations omitted); see also Tip’s Package Store, Inc. v. Commercial Ins.
Managers, Inc., 86 S.W.3d 543, 560 (Tenn. Ct. App. 2001) (holding that the lower court
“properly reconciled any apparent inconsistencies” in a jury's verdict)). Breach of contract
and negligence, moreover, are distinct causes of action. E.g., Acuff Intern., Inc. v. Sanya
Mfg. Corp., No. W2013–01146–COA–R3–CV, 2014 WL 346661, at *3 (Tenn. Ct. App. Jan.
30, 2014). As we recently noted,


        4
         (...continued)
that Ms. Wachtler’s claim of negligence should be “amended and denied” where Mr. Boyd was not provided
an opportunity to cure any alleged defects. This argument, as we perceive it, is properly applicable to Ms.
Wachtler’s contract claims. Additionally, an issue may not be first asserted in a motion to alter or amend.
In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005).

                                                   -6-
       To maintain an action for breach of contract, a plaintiff must establish (1) the
       existence of an enforceable contract, (2) non-performance of the contract
       amounting to a breach of that contract, and (3) damages flowing from the
       defendant’s nonperformance. Ingram v. Cendant Mobility Fin. Corp., 215
       S.W.3d 367, 374 (Tenn. Ct. App. 2006). In order to make out a claim for
       negligence, the plaintiff must likewise show:

              (1) duty of care owed by the defendant to the plaintiff; (2)
              conduct falling below the applicable standard of care amounting
              to a breach of that duty; (3) an injury or loss; (4) causation in
              fact; (5) proximate, or legal cause.

       Satterfeild v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008).

Id.

        As observed above, the pleadings in this case were somewhat informal, at best. The
jury verdict form did not provide for specific factual findings. However, the questions put
to the jury in this case, as we perceive them after review of the record, were whether Ms.
Wachtler breached the contract by failing to pay Mr. Boyd amounts due for work performed;
whether Mr. Boyd breached the contract by failing to complete the project; and whether Mr.
Boyd performed some of the work in a manner falling below the standard of care, thereby
resulting in damages to Ms. Wachtler.

        Questions of breach of duty, cause in fact, and legal causation are questions of fact
for the jury and not questions to by determined by the trial court “unless the uncontroverted
facts and inferences to be drawn from them make it so clear that all reasonable persons must
agree on the proper outcome.” Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn.
1994). Upon review of the record, particularly Mr. Myers testimony, we find the record
contains material evidence to support the jury’s finding of negligence in this case.

        We turn finally to Mr. Boyd’s assertion that Mr. Myers and Ms. Wachtler gave false
testimony. In his brief, Mr. Boyd asserts that Mr. Myers and Ms. Wachtler gave false
testimony with respect to a sewage leak and Ms. Wachtler’s water bill. The credibility of
witnesses is a matter to be determined by the finder of fact, and we will give due deference
to the jury’s determinations and the trial court’s prerogative as thirteenth juror. Johnson v.
Nunis, 383 S.W.3d 122, 134 (Tenn. Ct. App. 2012). Moreover, as noted above, the jury
form in this case did not provide for particularized findings of fact, and we cannot ascertain
the extent to which the jury made findings with respect to either the sewage leak or Ms.
Wachtler’s water bill. To the extent to which they were among the damages alleged by Ms.

                                             -7-
Wachtler, we must defer to the jury’s credibility determinations.

                                          Holding

       In light of the foregoing, we affirm the jury verdict in this case. Costs on appeal are
taxed to the appellant, Howard L. Boyd. This matter is remanded to the trial court for
enforcement of the judgment and the collection of costs.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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