                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 7, 2002 Session

       WILLIAM J. REINHART and JUDITH F. REINHART,
                            v.
   ROBERT T. KNIGHT, GLENDA KNIGHT, BOB PARKS and JOHN E.
                        HARNEY, III,

                Appeal from the Rutherford County Circuit Court for County
                           No. 41560    James L. Weatherford



                   No. M2001-02195-COA-R3-CV - Filed December 4, 2003


        This appeal involves claims of breach of contract for sale of real estate and procurement of
breach of contract. After a jury trial, the defendants Robert and Glenda Knight were found to have
breached the real estate sales contract with the plaintiffs and plaintiffs were awarded $185,476.48.
The jury also found that the defendants Bob Parks and John Harney procured the breach of contract
by the Knight defendants and awarded plaintiffs $556,429.44. The trial judge remitted the damage
award against the Knights to $0.00.
        For the reasons set forth below, we reverse the remittitur suggested by the trial court and
reinstate the jury verdict of $185,476.48 against the Knights. We affirm the judgment in all other
respects and remand this matter for such further proceedings as may be consistent with this opinion.



Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is hereby reversed as
         to remittitur, jury verdict reinstated, and affirmed in all other respects.

THOMAS W. BROTHERS , SP . J., delivered the opinion of the court, in which D. MICHAEL SWINEY, J.,
joined. BEN H. CANTRELL, P.J., M.S., filed a dissenting opinion.

Bradley A. Maclean, Stephen H. Price, and Paul E. Helton, Nashville, Tennessee, for the appellants,
Robert T. Knight, Glenda Knight, Bob Parks and John E, Harney, III.

J. Stanley Rogers and Christina Henley Duncan, Manchester, Tennessee, for the appellees, William
J. Reinhart and Judith F. Reinhart.
                                           OPINION

        In early 1996, defendant John E. Harney, III ("Harney") approached plaintiffs William
and Judith Reinhart ("Reinharts") concerning the possible sale of their property in Rutherford
County. The Reinharts entered into a written real estate sales contract with the defendants
Robert and Glenda Knight ("Knights") on or about April 8, 1996. The Reinharts initially did not
know that Mrs. Knight and Harney both worked for the same company, Bob Parks Realty. The
parties signed a Facilitation agreement which stated that Harney was not the agent of either party.
        Pursuant to this agreement the Reinharts were to convey a portion of their 115 acre tract
of farmland to the Knights. The real estate to be conveyed was described as:

       Approximately 92.8 acres located at 6429 Manchester Highway, further described in
       Deed Book 311, Page 331 in Rutherford County Register's Office. See attached Exhibit
       A.

        Exhibit A was never introduced into evidence. The Reinharts have moved to strike from
the appellate record the purported copies of exhibit A that have been attached to the appellate
briefs. The Reinharts argue that since the jury never received exhibit A as evidence, it should not
be considered on appeal. We agree and grant the Motion to Strike.
        The only other reference to the property description was contained in the consideration
clause which stated:

       ...Actual purchase price to be based on $4700.00 (Forty Seven Hundred and 00/100
       Dollars) per acre from accurate survey to be provided by Seller upon Buyers giving
       notice of contingencies, except for approval of survey, being removed...If sales price after
       survey of acreage is completed is below $425,000.00 (Four Hundred Twenty Five
       Thousand and 00/1000 Dollars), Buyer or Seller shall have the right to nullify the
       Contract and all earnest money shall be returned to the Buyer.

        Therefore if the survey provided revealed that there were less than 90.43 acres
($425,000/$4,700), either party had the option to terminate the agreement. The Knights never
removed the contingencies and no survey was submitted to them.
        The contract also provided for a 120-day feasibility period in which the Knights had
access to the property to conduct soil testing in order to determine the percolation rates. This
provision stated that:

        Contract contingent on buyer’s obtaining health department approvals for a maximum of
       30 (3 bedroom septic system) sites distributed across the property in a manner
       satisfactory to the buyer’s subdivision plan.

       The initial feasibility period was extended until October 30, 1996. Percolation tests were
performed on a portion of the property indicating that the property could only be subdivided into



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a maximum of 14-19 lots. This was unacceptable to the Knights who advised the Reinharts on
November 1, 1996 that they did not want to purchase the property.
         The Reinharts encountered financial difficulties and sold 87.34 acres of their property at
auction on December 14, 1996. The acreage was determined by a survey conducted prior to the
auction sale. Harney, Bob Parks ("Parks") and Gary Bowman purchased the property at auction
for $303,000.00. At trial Mr. Reinhart testified that the land sold at auction was basically the
land intended for the Knights but that he would have provided additional acreage from the area
he retained if needed to provide the minimum acreage.
         Harney, Parks and Gary Bowman formed a limited liability company that developed the
land into a development known as Churchhill Farms, LLC. The development consisted of 16
tracts on which 14 residences were constructed. The total sales price for the land after
development was $1,018,700.00.
         The Reinharts sued the Knights for breach of contract and sued Parks and Harney for
procurement of the breach of contract. The jury found that the Knights were liable for damages
from their breach of the contract in the amount of $185,476.48. The jury also found that Parks
and Harney were liable for treble damages for their procurement of breach of the contract and
awarded damages in the amount of $556,429.44.
         The trial court remitted the entire amount of damages awarded against the Knights,
concluding that the jury could “have found under these circumstances that the Knight Defendants
would not be liable to the plaintiffs in damages.” The Reinharts accepted the remittitur under
protest.
         All parties now appeal. Harney and Parks assert on appeal that they could not be liable
for procurement of breach of contract because (1) there were no damages awarded for the
underlying breach of contract pursuant to the remittitur and (2) the Reinharts could not convey
the minimum acreage required thereby allowing the Knights the right to nullify the contract. The
Knights assert that the trial court's ruling on remittitur be interpreted to absolve them of any
finding of breach of contract since the special verdict form was not proper. The Reinharts appeal
from the remittitur and seek reinstatement of the jury award.
         We find that the Reinharts' position is persuasive. The findings by a jury should be set
aside only if there is no material evidence to support the verdict. We find there is material
evidence to support the verdict and the award of damages.
         The review of a trial judge's suggestion of remittitur is de novo upon the record of the trial
court, accompanied by a presumption of the correctness of the finding, unless the preponderance
of the evidence is otherwise. See, Tenn.Code Ann. § 20-10-102(b) We must determine whether
the trial judge's action in decreasing the jury's award was justified, after giving due credit to the
jury's decision on the credibility of the witnesses and to the role of the trial judge as the thirteenth
juror. See, Foster v. Amcon Intern., Inc., 621 S.W.2d 142 (Tenn. 1981)
         This Court has previously noted that "Appellate courts customarily conduct a three-step
review of a trial court's adjustment of a jury's damage award. First, we examine the reasons for
the trial court's action since adjustments are proper only when the court disagrees with the
amount of the verdict. Burlison v. Rose, 701 S.W.2d at 611. Second, we examine the amount of
the suggested adjustment since adjustments that "totally destroy" the jury's verdict are
impermissible. Foster v. Amcon Int'l, Inc., 621 S.W.2d at 148; Guess v. Maury, 726 S.W.2d 906,


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913 (Tenn.Ct.App.1986). Third, we review the proof of damages to determine whether the
evidence preponderates against the trial court's adjustment. See Tenn.Code Ann. §
20-10-102(b)." See, Long v. Mattingly 797 S.W.2d 889, 896 (Tenn.Ct.App.1990)
       Here, the trial judge stated as his reason for suggesting a remittitur that :

       ...I have concluded that the verdict form that was submitted to the jury and agreed upon
       by all parties was not proper.
       I am not satisfied with that part of the judgment that awards judgment against Robert T.
       Knight and wife, Glenda Knight.
       I feel that the jury should have been instructed that a person's liability in violation of
       T.C.A §47-50-109 for inducing the breach of contract is separate and distinct from the
       plaintiff's right of recovery in contact [sic] against the breaching party.
       ...I feel that if the jury had been properly instructed, it was within the realm of possibility
       that the jury could have found that the Defendants, Knight, could have breached the
       contract and could have found that the Plaintiffs were damaged because of the breach,
       and could have found under the circumstances of this case, that the Defendants, Knight,
       would not be liable to the Plaintiffs in damages.

        Clearly the reason given for remitting the award of damages was that the jury instructions
concerning breach of contract and procurement of breach were improper.
        We must respectfully disagree. The Special Verdict Form which was submitted to the
jury was developed by and approved by all counsel. The Court reviewed the questions with
counsel prior to reading it to the jury before the jury retired. All counsel, including counsel for
defendants, Knight, agreed to the Special Verdict Form. No party made any objection, request
for withdrawal or request for restatement of any issue. In Williams v. Van Hersh, 578 S.W. 2d
373, 376 (Tenn. App. 1978) it was stated:

       Absent an obvious miscarriage of justice, or situations of extreme hardship or of
       extraordinary and compelling circumstances, we hold that a party may not
       acquiesce in the special issues submitted by the court and then, after a verdict
       unfavorable to him, object to a particular question as submitted.

        Because this case does not involve an obvious miscarriage of justice, a situation of
extreme hardship or of extraordinary and compelling circumstances, this issue clearly should not
be raised on appeal.
        The findings of a jury should not be set aside based upon an improper jury instruction if
the error did not or could not have played a material role in the jury's decision making process.
See, Grandstaff v. Hawks, 36 S.W.3d 482, 497 (Tenn. App. 2000). There is nothing in the
record to indicate that the jury did not understand the jury instructions or Special Verdict Form.
The trial court judge's determination that "it is within the realm of possibility that the jury could
have found that the defendants (the Knights)...would not be liable to the plaintiffs in damages" if
they were given proper instructions does not show that the error did or could have played a
material role in the jury's decision making process.


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         The amount of the adjustment also supports our determination. The effect of the
reduction suggested by the trial judge is to reduce the award by 100%. This extreme
modification totally destroys the jury's verdict and is impermissible. See, Foster v. Amcon Int'l,
Inc., supra
         Finally, a review of the record reveals that the preponderance of the evidence supports the
jury's finding that the Knights breached the contract and that Plaintiffs suffered damages in the
amount awarded by the jury. The Knights reliance on their dissatisfaction with the percolation
tests was not a valid excuse for their breach. The proof of damages at trial clearly supported the
amount awarded.
         Thus, having determined that the original jury award must be reinstated, we now turn to
the issues raised by the defendants below. Our determination of the remittitur question resolves
the issue raised by the Knights as well as the argument by Harney and Parks that they cannot be
held liable for any amount if no damages are awarded against the breaching party.
         Remaining are the questions:
         1.       Was the contract never breached because the buyer had the right to nullify the
                  contract for failure of the express condition that the property contain at least a
                  specified minimum amount of acreage?
         2.       Was it reversible error for the trial court to instruct the jury that a contract can be
                  entirely or partly oral?
         Both of these issues require an examination of the testimony offered at trial. Harney and
Parks assert that the Parol Evidence Rule should have prohibited Mr. Reinhart from testifying
that he would have been able to provide at least 90.43 acres by including acreage from the area
he was retaining. They argue that he was contradicting the written contract by moving a
boundary line. They complain that this testimony adds or contradicts terms to the written
contract in violation of the Statute of Frauds.
         The Reinharts contracted to sell "approximately 92.8 acres" of the 115 acres that they
owned. The property was described in the contract by the street address and the Book and Page
number of the Reinhart deed for the entire 115 acres. The contract provided that if the Knights
removed the contingencies, then the Reinharts were to provide a survey. If the survey revealed
that there were less than 90.43 acres, then either party had the option to "nullify" the agreement.
         First, the Knights never removed the contingencies and never requested a survey. The
Knights relied upon their dissatisfaction with the percolation tests as the basis for their refusal to
perform under the contract. Therefore, no survey was provided to them and they never attempted
to "nullify" the contract for non-compliance with the minimum acreage requirement.
         Harney and Parks rely heavily upon Mr. Reinhart's testimony at trial to prove that it
would have been impossible for him to convey at least 90.43 acres since the survey for the
auction revealed only 87.34 acres in the tract intended to be sold to the Knights. Therefore, since
it was impossible for the Reinharts to perform, there could not be a breach of contract by the
Knights. They cite his testimony in support of their position:

        Q:      So you sold at absolute auction basically the land that you had sold to the Knights
                under the contract?
        A:      Yes, exactly.


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       Mr. Reinhart later testified somewhat differently:

       Q:      Okay. As far as the contract, in the contract where it says -- let me ask you this:
               As far as the property, the property that Mr. Harney and Mr. Parks and Mr.
               Bowman bought, that was the same property you were going to sell the Knights;
               correct?
       A:      Not exactly.
       Q:      Why is it not exactly?
       A:      Because the line that was closing off the 15 acres that I decided to retain was not
               closed off during the Knight contract. It was closed off at the time I sold the
               property at auction.
       Q:      So, are you saying at auction they got a little bit more land , is that right, or a
               little less?
       A:      They got a little less.

         The Reinharts submit that it was permissible for Mr. Reinhart to explain at trial how he
would have provided sufficient acreage by reducing the amount he retained.
         Harney and Parks complain that this testimony violates the Parol Evidence Rule. We
disagree.
         If the agreement itself shows that some particular tract was intended, then parol proof is
admissible to show the location and boundaries of the tract mentioned, and to enable the Court to
find it. See, Dobson v. Litton, 45 Tenn. (5 Cold.) 616 (1868) The rule of law is that parol
evidence is admissible to show where the land is that fills the description given in the writing,
but it cannot supply material parts of the deed. It is permissible to apply, but not to supply,
description. See, Sheffield v. Franklin 222 S.W.2d 974 (Tenn. Ct. App. 1947)
         Here Mr. Reinhart was properly allowed to explain how he would perform within the
terms of the contract. His testimony did not contradict the terms of the contract. Instead, he
merely identified where the property was that was described in the contract. Parol testimony is
always admissible to show where the land is that fills the description contained in the instrument.
Id.
         Under these circumstances, the jury instruction that a contract could be entirely or partly
oral, although erroneous in a case involving the sale of real estate, was harmless error. There was
no modification of the contract, only an explanation of performance.
         Accordingly, we reverse the judgment of the trial court granting a remittitur and reinstate
the jury's verdict of $185,476.48 against Robert and Glenda Knight. We affirm the judgment in
all other respects. Costs shall be taxed against Robert and Glenda Knight, John Harney and Bob
Parks, for which execution shall issue if necessary.



                                      _______________________________
                                      JUDGE THOMAS W. BROTHERS


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