                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs April 24, 2014

                      CLUB LECONTE v. CAROLINE SWANN

                     Appeal from the Circuit Court for Knox County
                      No. 333809 Hon. Deborah C. Stevens, Judge




                 No. E2013-01971-COA-R3-CV-FILED-MAY 16, 2014


This appeal arises from a dispute concerning the payment for Defendant’s wedding reception.
Plaintiff filed suit when Defendant failed to pay for the reception as agreed. At trial, Plaintiff
presented theories of breach of contract and unjust enrichment. The jury found for Plaintiff
and returned a verdict against Defendant in the amount of $10,787.18. On appeal, Defendant
requests reversal of the judgment entered against her because she believes that the jury
verdict form erroneously allowed for recovery pursuant to both theories of breach of contract
and unjust enrichment. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Christopher D. Heagerty, Knoxville, Tennessee, for the appellant, Caroline Swann.

A. Philip Lomonaco, Knoxville, Tennessee, for the appellee, Club LeConte.

                                           OPINION

                                     I. BACKGROUND

       In 2005, Caroline Swann (“Defendant”) chose Club LeConte (“Plaintiff”) as the
location for her wedding reception. She met with one of Plaintiff’s representatives to arrange
the reception. The representative completed a “function sheet” that detailed the goods and
services Defendant requested. The reception proceeded as scheduled; however, Defendant
failed to pay Plaintiff the remaining balance for the goods and services that had been
rendered. Plaintiff issued several invoices that reflected the remaining balance and assessed
late charges. When Defendant failed to respond to the invoices and remit payment, Plaintiff
filed suit against Defendant. The initial suit was voluntarily dismissed prior to the rendering
of a verdict. See Club LeConte v. Swann, 270 S.W.3d 545 (Tenn. Ct. App. 2008).

        Plaintiff filed the suit that is at issue in this appeal pursuant to the saving statute.
Plaintiff alleged that Defendant was liable pursuant to the theories of breach of contract or
unjust enrichment for approximately $9000, plus costs, attorney fees, and other expenses, for
goods and services rendered at the reception. Defendant admitted that she had not remitted
payment to Plaintiff but denied liability.

        The case proceeded to a jury trial.1 After hearing the evidence, the jury found for
Plaintiff and assessed damages against Defendant in the amount of $10,787.18. The trial
court entered a judgment against Defendant in accordance with the jury verdict. This timely
appeal followed.

                                                  II. ISSUE

           We restate the issue raised on appeal by Defendant as follows:

           Whether the verdict should be reversed when the jury found for Plaintiff
           pursuant to the competing theories of breach of contract and unjust
           enrichment.

                                    III. STANDARD OF REVIEW

       This appeal raises a question of law, which we review de novo with no presumption
of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                            IV. DISCUSSION

       Defendant argues that the jury verdict form was internally inconsistent because it
allowed for recovery pursuant to the competing theories of breach of contract and unjust
enrichment. She claims that if the jury found that Defendant was liable pursuant to the
theory of unjust enrichment, it must have also necessarily found that she did not have a valid
contract with Plaintiff. She notes that the jury erroneously found for Plaintiff pursuant to
both theories. Plaintiff responds that Defendant has waived review of the issue on appeal


1
    The statement of the evidence is devoid of information pertaining to the testimony presented at trial.
                                                       -2-
because she agreed to the revised verdict form before it was submitted to the jury. Plaintiff
alternatively asserts that any error in the jury verdict form was harmless because Plaintiff did
not recover twice, namely it only received what it was entitled to for the value of the goods
and services rendered with interest.

        Plaintiff likely offered competing theories in the event that the jury found that the
“function sheet” was not a valid contract. See Whitehaven Cmty. Baptist Church v.
Holloway, 973 S.W.2d 592, 596 (Tenn. 1998) (providing that the theory of unjust enrichment
allows a court to “impose a contractual obligation where one does not exist”). Defendant is
correct in her assertion that recovery pursuant to unjust enrichment is only available when
a valid contract cannot be found or when additional goods and services have been rendered
beyond that provided for in the initial contract. Robinson v. Durabilt Mfg. Co., 260 S.W.2d
174, 175 (Tenn. 1953). Defendant argues and Plaintiff agrees that the verdict form at issue
provided that Plaintiff was entitled to recovery pursuant to the theories of breach of contract
and unjust enrichment. “Tennessee law is well-established that litigants are entitled to have
their rights settled by a consistent and intelligible verdict and that verdicts that are
inconsistent and irreconcilable cannot stand.” Concrete Spaces v. Sender, 2 S.W.3d 901, 911
(Tenn. 1999) (citing Milliken v. Smith, 405 S.W.2d 475, 476 (Tenn. 1966); Alabama
Highway Express, Inc. v. Luster, 371 S.W.2d 182, 183 (Tenn. 1963); Penley v. Glover, 205
S.W.2d 757, 759 (Tenn. 1947)). “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).

        Unfortunately, the jury verdict form is not included in the record on appeal for our
review. It is Defendant’s duty to prepare and file an adequate record for appeal. Tenn. R.
App. P. 24. Without the jury verdict form, we are severely limited in our review of the issue
raised on appeal. Additionally, Defendant consented to the jury verdict form before it was
provided to the jury. If Defendant had raised the error, it could have been corrected at the
trial court level. A party may not offer a new issue for the first time on appeal. See Lane v.
Becker, 334 S.W.3d 756, 764 (Tenn. Ct. App. 2010) (citing Campbell Cnty. Bd. of Educ. v.
Brownlee-Kesterson, Inc., 677 S.W.2d 457, 466-67 (Tenn. Ct. App. 1984)). “The
jurisprudential restriction against permitting parties to raise issues on appeal that were not
first raised in the trial court is premised on the doctrine of waiver.” Fayne v. Vincent, 301
S.W.3d 162, 171 (Tenn. 2009) (citations omitted).

       Absent waiver, any error in the jury verdict form was harmless. “Even if a verdict is
defective in form, it is to be enforced if it sufficiently defines an issue in such a way as to
enable the court to intelligently articulate a judgment.” Sender, 2 S.W.3d at 911 (citing
Arcata Graphics Co. v. Heidelberg Harris, Inc., 874 S.W.2d 15, 22-27 (Tenn. Ct. App.
1993)). Defendant does not allege that Plaintiff received damages pursuant to each theory

                                               -3-
and essentially recouped a double recovery. Defendant also does not assert that the verdict
was contrary to the evidence and has not provided an adequate record for our review of the
evidence presented at trial. Whether the jury agreed with both theories of liability or just one
theory, the jury ultimately concluded that Plaintiff was entitled to payment for the value of
the goods and services rendered plus interest and assessed damages to reflect that fact. With
these considerations in mind, we conclude that any error in the jury verdict form was
harmless because the form allowed the court to intelligently articulate a judgment against
Defendant.

                                     V. CONCLUSION

      The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Caroline
Swann.


                                            ______________________________________
                                            JOHN W. McCLARTY, JUDGE




                                              -4-
