                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                February 28, 2012 Session

BARRY W. BETHEL, ET AL. v. NEILL SANDLER BUICK PONTIAC GMC,
                           INC., ET AL.

                 Appeal from the Circuit Court for Rutherford County
                         No. 52688    J. Mark Rogers, Judge


                  No. M2011-00356-COA-R3-CV - Filed July 24, 2012




This is an appeal of a jury verdict in favor of Plaintiff in an action for misrepresentation and
breach of contract. The jury returned a general verdict finding Defendant liable and
awarding Plaintiff $62,083.18 in compensatory damages. Defendant appeals, asserting that
the elements of misrepresentation are not supported by the evidence and that the jury was
improperly instructed on the issue of damages. We hold there is substantial and material
evidence in support of a finding that Defendant breached the contract between the parties and
affirm the jury’s verdict in all respects.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S., and A NDY D. B ENNETT, J., joined.

John P. Doyle, Murfreesboro, Tennessee, for the Appellant, Martin Duane Luplow.

John Isaac Harris, Nashville, Tennessee, for the Appellee, Barry W. Bethel.

                                          OPINION

                          F ACTUAL AND P ROCEDURAL H ISTORY

       On October 31, 2005, Barry Bethel, a former sales manager with Neill-Sandler Buick-
Pontiac-GMC (“Neill-Sandler”) filed suit against Neill-Sandler, Mike Sandler, Jeff Pyle, and
Marty Luplow (collectively referred to as “Defendants”), alleging that the Defendants
fraudulently misrepresented the amount of his compensation. Subsequently, Neill-Sandler
and Mike Sandler filed motions for summary judgment which were granted by the trial court;
Mr. Bethel settled his claim against Mr. Pyle.

        The matter proceeded to a jury trial on September 28, 30, and October 5, 2010 with
Mr. Luplow as the only defendant. Mr. Bethel testified that he first became acquainted with
Mr. Luplow and Mr. Pyle in 1998 when he and Mr. Pyle worked under the supervision of Mr.
Luplow at Crest Cadillac. In November 2003, Mr. Luplow left Crest Cadillac and went to
work for Neill-Sandler as a general sales manager. Thereafter, Mr. Luplow recruited Mr.
Bethel and Mr. Pyle to work at Neill-Sandler as part of his management team as the
managers of the used and new car divisions, respectively. Mr. Bethel testified that he
requested Mr. Luplow to negotiate the terms of his employment with Neill-Sandler and asked
that his compensation plan be the same as Mr. Pyle’s; Mr. Luplow agreed to both requests.
Mr. Bethel testified that this pay arrangement was important to him because it eliminated the
competition between the new and used car divisions “and made us work together as a team
simply because we knew that whatever we sold, as long as we worked together and sold it,
we both got compensated for it.”

       When Mr. Bethel and Mr. Pyle began working for Neill-Sandler, their commission-
based compensation plans were not yet negotiated; they were both paid a flat rate of
approximately $8,000 per month. Beginning in January 2004, Mr. Luplow negotiated the
commission rates and finalized agreements with Neill-Sandler whereby Mr. Pyle would make
a five percent commission and Mr. Bethel would make four percent. Mr. Bethel never
received a written employment contract; he believed, based on representations by Mr.
Luplow, that his pay was the same as Mr. Pyle’s. In October 2005, after two years of
employment, Mr. Bethel discovered that Mr. Pyle was making one percent more in
commissions.

      The case was submitted to the jury on theories of breach of contract and
misrepresentation. The jury returned a verdict in favor of Mr. Bethel and awarded
compensatory damages in the amount of $62,083.18. Mr. Luplow’s motion for a new trial
was denied, and he appeals.

                                  S TANDARD OF R EVIEW

       Our standard of reviewing the evidentiary foundation of a jury’s verdict is found at
Tenn. R. App. 13(d), which provides that “[f]indings of fact by a jury in a civil action shall
be set aside only if there is no material evidence to support the verdict.” Tenn. R. App. P.
13(d); Kelley v. Johns, 96 S.W.3d 189,194 (Tenn. Ct. App. 2002). With respect to this
standard of review, this Court has further explained:



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       The process of ascertaining whether evidentiary support exists for a jury’s
       verdict is very deferential toward the verdict. Barrett v. Vann, No. E2006-
       01283-COA-R3-CV, 2007 WL 2438025, at * 11 (Tenn. Ct. App. Aug. 29,
       2007) (No Tenn. R. App. P. 11 application filed); Ballard v. Serodino, Inc.,
       No. E2004-02656-COA-R3-CV, 2005 WL 2860279, at *3 (Tenn. Ct. App.
       Oct. 31, 2005) (No Tenn. R. App. P. 11 application filed). Reviewing courts
       must (1) take the strongest legitimate view of the evidence that favors the
       verdict, (2) assume the truth of all the evidence that supports the verdict, and
       (3) allow all reasonable inferences that sustain the verdict. Braswell v. Lowe’s
       Home Ctrs., Inc., 173 S.W.3d at 43; Kelley v. Johns, 96 S.W.3d 189, 194
       (Tenn. Ct. App. 2002).

Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2008).

                                         A NALYSIS

        Mr. Luplow urges this Court to reverse the award of compensatory damages and
argues that the elements of misrepresentation are not supported by the proof. He also asserts
that the trial court incorrectly charged the jury with respect to damages.

       This case was submitted to the jury on two theories of liability: misrepresentation and
breach of contract. The court provided several instructions to the jury, including the
following regarding breach of contract:

                                     T.P.I.-CIVIL 13.08
                                     Parol Agreements

       A contract may consist of both written and oral promises. The oral terms of
       the contract may be enforced just as though those terms had appeared in a
       written agreement.

                                     T.P.I.-CIVIL 13.10
                                            Breach

       If you find that a valid contract was entered into you must determine whether
       the defendant breached the contract. If a party does not perform according to
       the contract terms, that party has committed a breach of the contract. Any
       unexcused breach of contract allows a non-breaching party to recover
       damages.



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      The plaintiff claims that the defendant breached the contract in the following
      instances:

      Plaintiff Bethel claims that Defendant Luplow agreed to negotiate an
      employment agreement for Bethel with the dealership under which Bethel
      would receive the same compensation package as the one that existed with Jeff
      Pyle.

      The defendant denies this.

      The breach of contract must be a material breach. A minor and insubstantial
      failure of a party to meet the terms of a contract does not entitle the other party
      to reject the contract and not be responsible under it. A party who commits the
      first substantial breach of a contract cannot enforce the contract against the
      other party even if the other party later fails to abide by the terms of the
      contract.

                                          T.P.I.-CIVIL 14.70
                                          Contracts Generally

      When a contract is breached, the plaintiff is entitled to be placed in as good a
      position as would have been occupied had the contract been fulfilled in
      accordance with its terms. The plaintiff is not entitled to be put in a better
      position by a recovery of damages for breach of contract than would have been
      realized had there been full performance. The damages to be awarded are
      those that may fairly and reasonably be considered as arising out of the breach
      or those that may reasonably have been in the contemplation of the parties
      when the contract was made. Damages that are remote or speculative may not
      be awarded.

The jury returned a general verdict finding in favor of Mr. Bethel and awarded $62,083.18
in compensatory damages.1


      1
          The jury verdict form stated, in pertinent part, as follows:

      We the jury unanimously answer the questions submitted by the Court as follows:
      1. Do you find the Defendant, Marty Luplow, to be liable to the Plaintiff, Barry Bethel?

      Yes:       X                       No:

                                                                                           (continued...)

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       In his principal brief in this Court, Mr. Luplow does not contend that the elements of
breach of contract are not supported by the record. In his reply brief, however, in response
to Mr. Bethel’s assertion that the verdict should be upheld on the theory of breach of
contract, Mr. Luplow argues that the salaries of Mr. Pyle and Mr. Bethel were identical when
the two were hired in late 2003 and that this initial compensation structure fulfilled any
contractual obligation of Mr. Luplow. Mr. Luplow’s argument ignores the evidence in the
record that the contract between Mr. Luplow and Mr. Bethel was for Mr. Luplow to negotiate
a commission-based pay structure for Mr. Bethel that was the same as Mr. Pyle’s.

        Our review of the record reveals that the jury’s verdict is in accordance with the
charge it was given and is supported by evidence showing that Mr. Luplow failed to
negotiate a commission-based salary for Mr. Bethel that was commensurate with that of Mr.
Pyle.2 Thus, we need not reach Mr. Luplow’s arguments regarding misrepresentation where
there is evidence in the record to support the jury’s verdict under a breach of contract theory.
As our Supreme Court has previously explained, “a general verdict approved by the Trial
Judge is not vitiated by the absence of proof on one or more counts of the declaration if there
is evidence to sustain the averments of a single cou[n]t.” Alex v. Armstrong, 385 S.W.2d
110, 115 (Tenn. 1964).

        Mr. Luplow next contends that the trial court erroneously instructed the jury on the
“Benefit of the Bargain” measure of damages which “allowed the jury to award contract
damages . . . .” We are not persuaded by Mr. Luplow’s argument. It is the trial court’s duty
to instruct the jury on “every factual issue and theory of the case presented by the parties.”
Ricketts v. Robinson, 169 S.W.3d 642, 646 (Tenn Ct. App. 2002) (citing Cole v. Woods, 548
S.W.2d 640, 642 (Tenn. 1977)). Our standard for reviewing a trial court’s jury charge is as
follows:

        We review the jury charge in its entirety to determine whether the trial judge
        committed reversible error. Jury instructions are not measured against the


        1
            (...continued)
        If your anser is “no,” stop here, sign the verdict form and return to the Court.
        If your answer is “yes”, [sic] proceed to question 2.

        2. We find that the Plaintiff, Barry Bethel, is entitled to an award of compensatory damages
        in the amount of : $62,083.18
        2
         There is undisputed evidence that Mr. Bethel and Mr. Pyle were paid different commissions. The
exact amount of the difference between their salaries, as reflected on the spreadsheet introduced through the
testimony of Mike Sandler and made trial Exhibit 1, is the amount awarded by the jury in compensatory
damages—$62,083.18.

                                                    -5-
       standard of perfection. The charge will not be invalidated if it “fairly defines
       the legal issues involved in the case and does not mislead the jury.”
       Furthermore, a particular instruction must be considered in the context of the
       entire charge.

Id. (citing City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App.
1996)). In light of the fact that this case was submitted to the jury under a breach of contract
theory, the charge, quoted in relevant part above, fairly defined the legal issues and did not
mislead the jury. Therefore, we affirm the jury’s verdict in favor of Mr. Bethel and its award
of $62,083.18 in compensatory damages.

                                        C ONCLUSION

       For the foregoing reasons, we affirm the jury’s verdict in all respects.




                                            ___________________________________
                                                 RICHARD H. DINKINS, JUDGE




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