Buddy Lee Attractions, Inc. v. William Morris Agency, Inc.

BUDDY LEE ATTRACTIONS, )

INC., )

Plaintiff/Appellee,

)

)

Appeal No. FILED

01-A-01-9804-CH-00185

) September 21, 1999

v. ) Davidson Chancery

) No. 94C-2578 Cecil Crowson, Jr.

WILLIAM MORRIS AGENCY, ) Appellate Court Clerk

INC., and JOSEPH E. HARRIS, )

)

Defendants/Appellants. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY,

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

SAMUEL D. LIPSHIE

SCOTT K. HAYNES

LUTHER WRIGHT, JR.

Boult, Cummings, Conners & Berry

414 Union Street, Suite 1600

P. O. Box 198062

Nashville, Tennessee 37219

ATTORNEYS FOR PLAINTIFF/APPELLEE

JAY S. BOWEN

TIMOTHY L. WARNOCK

GREGORY S. REYNOLDS

Bowen Riley Warnock & Jacobson

1906 West End Avenue

Nashville, Tennessee 37203

ATTORNEYS FOR DEFENDANTS/APPELLANTS

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE

O P I N I O N

Defendant, William Morris Agency, Inc., appeals an adverse jury verdict

in the amount of $250,000.00, trebled by the trial judge under Tennessee Code

Annotated section 47-50-109. This defendant also appeals a partial summary

judgment order granted to plaintiff prior to the three week jury trial.

I. FACTS

Both plaintiff Buddy Lee Attractions, Inc. and defendant William Morris

Agency, Inc. were at all times material in this case, competing "booking agencies"

representing various performing artists in the music industry. Defendant, Joe

Harris, was an experienced booking agent who was employed on August 18, 1987

by Buddy Lee Attractions, Inc. On this date both Buddy Lee and Joe Harris

executed a document entitled "Conditions of Employment" which stated in

pertinent part:

5. In the event of cessation of Employee’s employment, Employee

shall not, during the period of two years immediately following

cessation of Employee’s employment, in any capacity represent any

artist or act who or which was under contract to or in any way

represented by Buddy Lee Attractions, Inc. during the one-year

period immediately preceding the date of cessation of Employee’s

employment.

While employed by Buddy Lee, Joe Harris was "responsible agent" for

several artists including Trisha Yearwood, Garth Brooks and Mark Chestnut.

On August 18, 1993, Joe Harris left Buddy Lee’s employ to work for the

William Morris Agency. Two days later Trisha Yearwood terminated her

relationship with Buddy Lee, joining William Morris’ roster of represented artists;

William Morris appointed Joe Harris as Ms. Yearwood’s responsible agent for

booking.

Buddy Lee Attractions, Inc., filed suit on Sep. 16, 1993, alleging, inter alia,

breach of contract by Joe Harris and common law and statutory intentional

contractual interference on the part of William Morris. In support of these

allegations Buddy Lee asserted in pertinent part that:

2

COUNT II

***

36. At all times relevant hereto, William Morris Agency had

knowledge that there existed an employment agreement between

Harris and Buddy Lee Attractions in which Harris agreed not to

represent for a period of two (2) years after cessation of his

employment with Buddy Lee Attractions in any capacity “any artist

or act who or which was under contract to or in any way represented

by Buddy Lee Attractions, Inc., during the one year period

immediately preceding the date of cessation of [Harris’]

employment.”

37. In the alternative, William Morris Agency acted with

reckless disregard of the rights of Buddy Lee Attractions by

purposefully failing to make sufficient or reasonable inquiry

regarding any post-employment restrictions on Harris’ business

activities and the existence of the Restrictive Covenant.

38. Pursuant to the scheme of Harris and William Morris

Agency to persuade artists represented by Buddy Lee Attractions at

any time in the preceding year to terminate Buddy Lee Attractions as

their talent agency and engage William Morris Agency in that

capacity, as more fully described hereinabove, William Morris

Agency intended to induce Harris to breach the Agreement.

39. William Morris Agency, through its efforts to represent

the artists either currently or formerly represented by Buddy Lee

Attractions, acted maliciously and in willful violation of Buddy Lee

Attractions’ known rights.

40. The acts of Harris as described herein and in furtherance

of his and William Morris Agency’s scheme constitute a breach of

the Agreement.

41. The acts of William Morris Agency in inducing Harris to

breach his Agreement with Buddy Lee Attractions proximately

caused Harris’ breach of the Agreements.

42. As a direct and proximate result of the breach of the

Agreement, Buddy Lee Attractions has been damaged in an amount

to be determined at the trial of this action.

43. Pursuant to T.C.A. § 47-50-109, William Morris Agency

is liable in treble the amount of damages resulting from or incident

to the breach of the Agreement.

COUNT III

***

45. Plaintiff alleges that William Morris Agency is liable

3

under the common law tort of inducement of breach of contract by

violating the Restrictive Covenant for (1) all damages to be

determined at the trial in this matter resulting from and incident to

Harris’ breach of the Agreement and (2) punitive damages in an

amount sufficient to punish William Morris Agency and deter it and

others from engaging in similar conduct in the future.

In defense of this complaint, both Joe Harris and William Morris Agency,

Inc., rely on an alleged 1991 agreement between Joe Harris and Buddy Lee

Attractions, Inc., which purportedly superseded the 1987 "Conditions of

Employment" contract, and contained among other provisions the following:

17. Other Contracts Replaced: As of the effective date of this

Agreement, this Agreement supersedes, replaces, and cancels all

previous contracts, agreements, and/or arrangements of any kind or

nature whatsoever, whether oral or written, that may exist or may

have existed between Employer and Employee on or before the date

of execution of this Agreement.

Since the alleged 1991 agreement contained none of the post-employment

restrictions appearing in the 1987 agreement, defendants assert that neither of

them are in any way liable to Buddy Lee Attractions, Inc. because there has been

neither breach of contract by Joe Harris nor inducement to breach on the part of

William Morris Agency, Inc.

On August 7, 1995, the trial court entered an order holding:

The Court finds that there is no genuine issue of material fact in

dispute with respect to the validity of the 1987 employment

agreement and that it is enforceable in accordance with its terms as

a matter of law. The Court further finds that the 1987 contract is the

operative contract between defendant Harris and Buddy Lee

Attractions and that there are no valid defenses to the 1987 contract.

Buddy Lee Attractions is, therefore, entitled to summary judgment

as a matter of law as to the validity and effect of the 1987

employment agreement between Buddy Lee Attractions and

defendant Harris.

Following a three week jury trial, the trial court, on September 5, 1997,

submitted the case to a jury under a verdict form stating, in part, as follows:

A. BREACH OF CONTRACT

The Court instructs you that the 1987 Conditions of

Employment between Buddy Lee Attractions and Joe Harris was a

valid contract and was operative during the relevant periods of time

4

at issue in this action. The Court further instructs that Joe Harris

breached the 1987 Conditions of Employment when he represented

Trisha Yearwood during his employ at William Morris Agency.

These two elements of Buddy Lee Attractions' claim against the

Estate of Joe Harris have been proven, and you, the jury, must not

consider these elements.

It is obvious that if the trial court erred in holding the 1987 contract

applicable as a matter of law, rather than submitting to the jury for factual

determination, whether the 1987 agreement or the 1991 agreement governed the

relationship between the parties, the jury verdict can not stand.

We have determined that the question of which contract controls is a

question of fact for the jury and that the trial court erred in granting partial

summary judgment and in charging the jury as set forth above.

The first issue on appeal, as stated by William Morris Agency, Inc., is:

I. Whether the lower court erred in granting summary judgment to Buddy

Lee on the issue of whether the 1991 agreement superseded the 1987 agreement.

At the time of the jury trial all parties labored under the handicap caused by

the death of defendant Joe Harris. In response to the motion for partial summary

judgment, defendant Joe Harris filed an extensive affidavit on September 23,

1993. On August 7, 1995, the trial court granted partial summary judgment,

holding as a matter of law that the 1987 contract was controlling. On January 20,

1996, Joe Harris died, and at trial his estate was unrepresented.

While the intervening death of Joe Harris may have presented serious

evidentiary problems for the defendants at trial, they labored under no such

handicap at the time of the partial summary judgment in August 1995. His

affidavit conforms to Rule 56.06 of the Tennessee Rules of Civil Procedure and

it, along with all other evidence in the record at the time partial summary

judgment was granted, must be viewed in the light most favorable to the non-

moving party, and all reasonable inferences to be drawn from such evidence must

be construed in favor of the non-moving party. Byrd v. Hall, 847 S.W.2d 208, 210

(Tenn. 1993). If, after such consideration, a genuine issue of fact remains for trial,

5

or if there is doubt as to whether or not such genuine issue remains for trial, the

summary judgment must be overruled. Evco v. Ross, 528 S.W.2d 20, 24-25

(Tenn. 1975).

Because the granting of summary judgment involves a question of law, the

decision of the trial court is not entitled to a presumption of correctness. Gonzales

v. Alman Constr. Co., 857 S.W.2d 42, 44 (Tenn. App. 1993).

The affidavit of Joe Harris of September 23, 1993, asserted in part:

8. Buddy Lee called one day and I agreed to return to Buddy Lee

Attractions, bringing with me artists Razzy Bailey, Mel McDaniel,

Helen Cornelius, Joe Stampley, and some others. I had no written

employment agreement, but I did have a written agreement for my

commissions on Mel McDaniel and I did sign the Conditions of

Employment.

9. While working at Buddy Lee Attractions, I received a call

from an old friend and well-known producer Jerry Kennedy. At the

time he was producing Mel McDaniel, among others. Jerry Kennedy

told me about a new artist named Garth Brooks and suggested that

I call his manager, Bob Doyle. I called Bob and he and Garth came

to see me. They brought a tape of Garth's, but Garth said that he

would like to play some songs for me as well. I listened to one song

and I decided I wanted to book Garth Brooks. I signed Garth to a

contract with the agency in 1988 and have been his booking agent

ever since.

10. Garth did not have a recording contract with a major label at

the time. I called Jim Fogelsong at Capitol Records and suggested

that he have someone listen to Garth. It is my understanding that Jim

Fogelsong sent Lynn Schultz, then of Capitol Records, to hear Garth

at a writer's night at the Bluebird Café and that this led to Garth's first

major-label contract.

11. In the early part of 1991 Garth came to see me. he discussed

generally his desire that I remain his booking agent and I assured him

that I would. He said that he wanted to make sure that I was treated

right and I told him that I was being paid a guaranteed weekly salary

plus a one percent commission on the dates that I booked. Some

time thereafter, Tony Conway told me that Rusty Jones, Bob Doyle,

and Kerry O'Neil had come to see him about renegotiating Garth's

contract and that Garth wanted to pay me directly a commission of

five percent on the dates that I booked for him. This was the first

time that I had heard any of the terms of the proposed amendment to

Garth's contract with the agency.

12. As the negotiations for the amendment proceeded, I talked

several times with Garth's attorney, Rusty Jones. I became aware

that I would need to have my own contract with Buddy Lee

Attractions to ensure that Buddy Lee Attractions would be

6

contractually obligated to me and to make sure that my five-percent

commission would not be subject to a claim by the agency. I asked

Rusty if he could prepare the contract for me, but he said that

because he was Garth's lawyer, it would be inappropriate for him to

act for me and that I should have my regular attorney, Jim Harris,

draft the agreement for me.

13. When Garth's amendment was completed in April of 1991, I

was asked to sign it and I did. I then contacted Jim Harris and asked

him to draft a separate contract between me and Buddy Lee

Attractions which would be consistent with and would protect my

interests in Garth's amendment. I told Tony Conway what I wanted

as the terms of my new contract and I advised my attorney, Jim

Harris, to prepare the contract.

14. Jim Harris drafted a contract which ensured that I was entitled

to receive the five-percent commission directly from Garth, specified

my right to act as a consultant and advisor to other booking agencies,

and terminated all other existing agreements between me and Buddy

Lee Attractions. Each of these provisions was new and different

from the terms of the oral agreement that I had with Buddy Lee

Attractions. I wanted to make sure that the new contract terminated

all other existing agreements because Garth had told me that he

wanted me to be his booking agent even if he left the agency. I knew

that his amendment gave him the right to leave at any time, and the

1987 Conditions of Employment, if enforceable against me, could

have restricted my right to represent Garth. A true copy of the

agreement prepared by Jim Harris is attached to this my affidavit and

is made a part hereof.

15. In addition, the contract confirmed in writing my guaranteed

salary to $600.00 per week, my three weeks vacation, my insurance

and sick leave benefits, and my commission percentage for artists

other than Garth Brooks, which had been a part of my oral

agreement.

16. Jim Harris completed my contract with Buddy Lee Attractions

in early June of 1991. It was to be effective on the first day of June,

1991, and was to run for a term of two years. When Jim Harris

delivered the finished version of the contract to me, I signed it, took

it in to Tony Conway, and left it with him. Shortly thereafter, Tony

came to me and said that he could not take it to Buddy Lee right then

because if he took it to him now he would cry and he was not in good

health. He said he did not want anybody even to call Buddy because

of the state of Buddy's health. He kept the agreement and did not

return it to me. He did not say that either he or Buddy Lee had any

objection to the contract. I left with the impression that Tony would

discuss the contract [with] Buddy Lee and that Tony would sign the

contract later.

17. I continued my work at Buddy Lee Attractions under the terms

of my new contract and Buddy Lee Attractions honored all of its

provisions. I received my guaranteed salary of $600.00 per week, I

took three weeks vacation, and I gave advice to other agencies,

particularly with respect to booking opening acts, but I received no

7

compensation for this advice. My thought was that by giving proper

advice to other agencies about dates for opening acts, I was helping

Buddy Lee Attractions put together a more attractive package for its

own acts. I began to receive my five-percent commission directly

from Garth Brooks.

18. Because Buddy Lee Attractions was honoring the terms of the

new contract, I did not think much about Buddy Lee's not returning

a signed copy of the contract. Instead, I continued to work

throughout and past the expiration of the term of the new contract.

Neither Buddy Lee nor Tony Conway ever returned a signed copy of

the contract to me. But, at no time prior to my resignation did Buddy

Lee, Tony Conway or anyone else ever indicate to me any

disagreement with the terms of the new contract. And, at no time

prior to my resignation did Buddy Lee or Tony ever indicate to me

that the new contract was not in full force and effect.

II. PARTIAL SUMMARY JUDGMENT AS TO THE EFFECT OF THE 1987

CONTRACT.

The lengthy and detailed "Employment Agreement" bearing the date of

June 1991 was never signed by anyone representing Buddy Lee. It is likewise true

that Buddy Lee vehemently denies that the 1991 purported agreement was ever

accepted by Buddy Lee and asserts that the parties continued to operate solely

under the "Conditions of Employment" document of August 18, 1987. Indeed, by

affidavit of September 27, 1993, Tony Conway of Buddy Lee Attractions, Inc.

asserts that he could not remember ever receiving the original or a copy of the

alleged 1991 agreement prior to August 26, 1993, after Joe Harris had resigned

from Buddy Lee Attractions, Inc. He further denied that he had ever discussed

such an agreement with Joe Harris.1

Faced with this swearing contest between Joe Harris and Tony Conway, we

next look to the conduct of the parties subsequent to June 1991.

"It is a general principle of the law of contracts that, while an assent to an

offer is a requisite to the formation of an agreement, yet such assent is a condition

of the mind, and may be either express or evidenced by circumstances from which

the assent may be inferred." Cole-McIntyre-Norfleet Co. v. Holloway, 141 Tenn.

1

Four years later in rebuttal, Mr. Conway testified:

Q. What did you do when Mr. Joe Harris presented that document to you?

A. He handed it to me. I skimmed through it like this (indicating), and handed it

back to him. I said, there is no reason to do a contract, Joe, you already have

one.

8

679, 214 S.W. 817, 818 (1919); see also Province v. Mitchell, 44 Tenn. App. 115,

124, 312 S.W.2d 861, 865 (Tenn. App. 1958) and Yarbrough v. Stiles, 717 S.W.2d

886, 888 (Tenn. Ct. App. 1986).

The "Conditions of Employment" document of August 18, 1987 provided,

in part, as follows: "7. All commission checks from artists shall be made payable

to Buddy Lee Attractions, Inc."

The alleged "Employment Agreement" of June 1991 provided in part as to

the commission income of Joe Harris:

3.3 An amount equivalent to 5% (five percent) of the total

gross compensation paid to the artist known as Garth Brooks for

each personal performance engagement or personal appearance

engagement which is performed by Garth Brooks and for which

employer is entitled to receive a commission.

3.4 Notwithstanding anything to the contrary appearing

elsewhere in this agreement, Garth Brooks is authorized to pay the

aforesaid percentage to employee directly for each personal

performance engagement or personal appearance engagement which

is performed by Garth Brooks and for which employer is entitled to

receive a commission.

The artist Garth Brooks is not mentioned in the 1987 agreement and the

direct payment provision from Garth Brooks to Joe Harris is inconsistent with the

1987 agreement but altogether consistent with the 1991 agreement.

It is undisputed that the general compensation paid to Joe Harris was the

amount set forth in the 1991 agreement and not the amount set forth in the 1987

agreement. His salary under the 1987 agreement was $500.00 per week. His

salary under the 1991 agreement was $600.00 per week. It is undisputed that his

salary was paid in the amount set forth in the 1991 agreement.

From the affidavit of Joe Harris and the actions of the parties subsequent to

June 1991, it may be inferred that Buddy Lee had assented to the 1991 agreement.

It might also be inferred that the conduct of the parties was consistent with the

9

1987 agreement and that the change in base salary was coincidental to the

provisions of the 1991 contract. It may likewise be inferred that the 5%

commission directly paid to Joe Harris was not due to assent by Buddy Lee to the

1991 agreement but rather in conformity with the insistence of Garth Brooks in

his own contract with Buddy Lee. On summary judgment motion, however, such

inferences address themselves to the trier of fact, not the trier of law. See Byrd v.

Hall, 847 S.W.2d 208, 216 (Tenn. 1993).

"When a contract between two parties which is contemplated to be signed

by both is reduced to writing and signed by only one of them, but accepted by the

other, it becomes in contemplation of the law, a written binding contract on both."

Carter v. Richards, No. 116, 1990 WL 209330, at * 3 (Tenn. Ct. App. Dec. 12,

1990); Southern Motor Car Co. v. Talliaferro, 14 Tenn. App. 276, 280 (1931).

The evidence offered by the defendants is sufficient under the Evco v. Ross

standards to present a genuine issue of material fact as to whether or not the 1991

agreement superseded the 1987 agreement, thus freeing the defendants from the

non-compete provisions of the 1987 agreement. The trial court erred in its grant

of partial summary judgment on this issue and such error is fatal to the ensuing

jury verdict.

III. JIM HARRIS’ TESTIMONY

In conjunction with William Morris’ motion for summary judgment, and,

apparently in opposition to Buddy Lee’s motion for summary judgment regarding

the applicability of the 1987 contract, Jim Harris, attorney for Joe Harris, filed a

motion to be relieved as counsel on July 20, 1995. This motion was couched in

terms of protection for client Harris. The motion states:

In its response to William Morris’ motion for summary judgment,

Buddy Lee denied the existence of the 1991 contract and accused

Defendant Harris of knowingly violating the 1987 restrictive

covenant and William Morris of maliciously and intentionally

inducing Defendant Harris to breach the restrictive covenant. It now

appears that Defendant Harris’ intentions, state of mind, and

credibility could be at issue with respect to the circumstances of his

termination of his employment from Buddy Lee Attractions, Inc. and

his subsequent employment by William Morris.

10

DR 5-102(A) of the Code of Professional Responsibility states that,

“If, after undertaking employment in contemplated or pending

litigation, a lawyer learns or it is obvious that he ... ought to be called

as a witness on behalf of his client, he shall withdraw from the

conduct of the trial ... except that he may continue the representation

and he ... may testify in the circumstances enumerated on DR 5-101

(B)(1) through (4).” Counsel can no longer say with certainty that

his potential testimony on behalf of Defendant Harris is subject to

the exceptions provided in DR 5-101(1) or (2). Therefore, DR 5-

102(A) leaves counsel with no choice but to withdraw from

participation on behalf of Defendant Harris in the trial of this case.

From this Court’s gleaning of the unusually duplicative record, this appears

to be the first time Jim Harris moved to withdraw as counsel for Joe Harris. The

above motion is cited in the trial court’s order of August 7, 1995, granting Buddy

Lee’s summary judgment as to the validity of the 1987 contract among other

issues. With regard to this motion, the court found:

4. James H. Harris, III, counsel for defendant Harris, seeks to

withdraw as counsel of record for defendant Harris in this action.

The Court is of the opinion that based on the record before the Court

and the Court’s familiarity with the record, any testimony given by

James H. Harris, III, would be cumulative and uncontested. The

Court further finds that any testimony sought to be given by James

H. Harris, III, could easily be the subject matter of a stipulation

between the parties. The Court thereby finds that it is not necessary

for James H. Harris III, to be relieved as counsel of record for

Defendant Harris in this action. Additionally, the Court finds that

since any testimony to be given by James H. Harris, III would be

cumulative and uncontested, James H. Harris, III should not be

allowed to testify on behalf of his client, defendant Harris, or

William Morris. In this regard, the Court finds that the prejudice to

Buddy Lee Attractions far outweighs any probative value of allowing

James H. Harris to testify in person versus some stipulation or other

means of introducing the cumulative and uncontested evidence that

would be the subject matter of such testimony.2

On the first trial date, apparently foreseeing summary judgment to his

client's detriment concerning the 1987 contract, attorney Harris moved on behalf

of client Harris to continue the action in Chancery Court pending results of

arbitration. This motion was granted by the court below in an order entered

2

It bears noting that the “stipulation” of which the court speaks was nothing of the sort.

The substance of the proposed stipulation was completely contrary to the substance of the

evidence proposed by Defendants below. Thus, no one would stipulate to the stipulation.

11

August 18, 1995.3 The most complicating factor regarding the necessity and

viability of James Harris as a witness occurred during the pendency of the

resulting arbitration and appeal from that original order. On January 20, 1996,

Joseph E. Harris, the lightning rod of this unfortunately lengthy litigation, the man

who represented one of the most popular music acts of all time, died at the age of

57. With that passing went the only party besides Tony Conway of Buddy Lee

Attractions and Jim Harris who had any first hand knowledge of the negotiations

involving the alleged 1991 contract. Yet when attorney Harris moved the court

to reconsider its 1995 order, that motion was rebuffed. Although the action of the

court below on reconsideration is not memorialized by written order in the record

before this Court, the transcript of the pre-trial proceedings of August 19, 1996,

reads in pertinent part as follows:

THE COURT: Well, Mr. Harris can’t go in and out of --

MR. BOWEN: No, sir.

THE COURT: -- of the trial.

MR. BOWEN: That’s up to him. I don’t believe he’s

planning to do that. I believe he’s asked to be excused, and if that’s

the case, he’s fair game as a witness.

THE COURT: No he’s not fair game because he’s going

to be representing the Estate of Joe Harris, so it’s not necessary for

him to stay in the courtroom every day. That’s his civil case. It’s up

to him if he wants to come in and out, but that doesn’t relieve him of

any involvement in the case, and I won’t set my ruling aside. I’ll

stay with my ruling.

***

MR. HARRIS: As Your Honor may recall, when the -- the

question of my possible participation as a witness first came up, I

moved the Court to be allowed to withdraw as counsel, and based on

the ethical consideration which requires that, and that motion was

denied, so I’m not withdrawn as counsel. However, I see no reason

for my party to be here and participate in something that really has

little to offer.

***

THE COURT: I’m not going to permit Mr. Harris to

withdraw from this case. If he wants to go in and out at different

times, he is free to do so, but he’s still an attorney of record for the

Estate.

The next major discussion involving James Harris appears in the form of

3

Said order of the Chancery court was vacated by order of this Court, Appeal No. 01-A-

01-9511-CH-00512, in connection with the parties withdrawal of appeal from the original

arbitration mandate.

12

an offer of proof. Although the 1991 agreement was discussed in the presence of

the jury, Mr. Harris was never allowed to testify as to the circumstances

surrounding the alleged 1991 agreement, as such testimony might bear on the

intentions, state of mind and motives of Joe Harris or representatives of the

William Morris Agency. The trial court’s refusal to allow attorney Harris to

testify was apparently grounded in Rule 403 of the Tennessee Rules of Evidence

and in the fact that James Harris was an attorney for one of the parties involved

in the case at bar.

Rule 403 provides for the exclusion of relevant evidence the probative value

of which is outweighed by, inter alia, the danger of unfair prejudice. Tenn. R.

Evid. 403. The original motion to withdraw filed by Attorney Harris was grounded

in Disciplinary Rule 5-102. The application of Disciplinary Rule 5-102 is guided

by Ethical Consideration 5-9, which provides as follows:

EC 5-9. Occasionally a lawyer is called upon to decide in a

particular case whether the lawyer will be a witness or an advocate.

If a lawyer is both counsel and witness, the lawyer becomes more

easily impeachable for interest and thus may be a less effective

witness. Conversely, the opposing counsel may be handicapped in

challenging the credibility of the lawyer when the lawyer also

appears as an advocate in the case. An advocate who becomes a

witness is in the unseemly and ineffective position of arguing the

advocate's own credibility. The roles of an advocate and of a witness

are inconsistent.

Tenn. Sup. Ct. R. 8, EC 5-9.

It is clear that James Harris would be a fact witness in the trial below. At

trial Buddy Lee was willing to allow Mr. Harris to read portions of his deposition.

Tennessee’s application of Rule 403, parallels the application of the federal

rule. See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). There is no question

that to properly exclude relevant testimony, the trial court must find unfair

prejudice. Even if one could say that the reasons for admitting James Harris’

testimony were questionable, this court finds persuasive the Sixth Circuit’s

discussion in the case of Doe v. Claiborne County:

...“Unfair prejudice” means the undue tendency to suggest a decision

based on improper considerations; it “does not mean the damage to

13

a [party’s] case that results from the legitimate probative force of the

evidence.” United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)

(internal quotation marks and citations omitted). Indeed, “[v]igorous

cross-examination, presentation of contrary evidence, and a careful

instruction on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.” Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct.

2786, 2798, 125 L.Ed.2d 469 (1993).

Doe v. Claiborne County, Tenn., 103 F.3d 495, 515 (6th Cir. 1996).

Jim Harris’ testimony regarding the 1991 contract was probative of the

possible existence of an agreement between Buddy Lee and Harris, as well as the

intent of Joe Harris and the William Morris representatives relative to tortious

interference and inducement. This testimony goes to the very heart of the

defendants' case and to disallow it deprives the defendants of fact testimony of

probative value. The fact that it may damage the plaintiff's case involves the

"legitimate force" of his testimony. It is not "unfair prejudice" under Rule 403.

In this case cross examination of Jim Harris is available as with any other witness

and "...[o]n retrial, upon introduction, the trial judge should give a carefully

detailed limiting instruction advising the jury as to the use of the evidence.”

Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 908 (Tenn. 1996).

Appellee would suggest that such exclusion was suitable not only because

of unfair prejudice, but also for the surprising nature of the motion to reconsider

argued on the trial date. Since the case must be retried because of the erroneous

grant of partial summary judgment, such surprise, if any, no longer exists.

IV. TREBLE DAMAGES

The final issue on this appeal regards the trial court’s actions concerning

treble damages.4

The statute under which treble damages were sought, Tennessee Code

4

Appellant William Morris raises several issues on appeal which in effect are mooted

in retrial. Of these are the questions regarding the surprise nature of testimony from Jeffrey

Beals the numerous complaints regarding the preliminary court order, argument and jury

instructions. Since this court reverses the partial summary judgment, the resolution of these

aforementioned issues would be unnecessary.

14

Annotated section 47-50-109, provides as follows:

It is unlawful for any person, by inducement, persuasion,

misrepresentation, or other means, to induce or procure the breach or

violation, refusal or failure to perform any lawful contract by any

party thereto; and, in every case where a breach or violation of such

contract is so procured, the person so procuring or inducing the same

shall be liable in treble the amount of damages resulting from or

incident to the breach of the contract. The party injured by such

breach may bring suit for the breach and for such damages.

Tenn. Code Ann. § 47-50-109 (1995). Much discussion took place at trial and on

appeal regarding a plaintiff’s burden of proof according to the statute. In view of

the fact that the statute itself does not set forth a standard of proof for trebling

damages, we look to case law.

With regard to procurement of breach in general, our supreme court has

most recently held:

Tennessee law recognizes both a common law action and a statutory

action for unlawful inducement of a breach of contract. T.C.A. Sec.

47-50-109, Edwards v. Travelers Insurance of Hartford,

Connecticut, 563 F.2d 105, 119 (6th Cir.1977), citing numerous

cases from this Court and the Court of Appeals. T.C.A. Sec.

47-50-109 is but a statutory declaration of the common law tort

action, expressly substituting treble damages for punitive damages.

Emmco Insurance Company v. Beacon Mutual Indemnity Company,

204 Tenn. 540, 322 S.W.2d 226, 231 (1959). The statute provides

for mandatory treble damages in the event there is a "clear showing"

that the defendant induced the breach. Continental Motel Brokers,

Inc. v. Blankenship, 39 F.2d 226, 229 (6th Cir.1984).

Polk & Sullivan v. United Cities Gas, 783 S.W.2d 538, 542 (Tenn. 1989).

The court in Polk & Sullivan followed a well-worn path by using a statement

which dates back to the first Tennessee Supreme Court case concerning the effect

of the treble damages statute.

The Code Section relied on (47-1706, T.C.A.) and made

the basis of this action under the Second Count of the

declaration contemplates the improper inducement, and

we might add the unlawful conduct, of the alleged

wrongdoer whereby a contract is broken. The statute

contemplates the imposition of a severe penalty, “and

should not be enforced except upon a clear showing.”

Lichter v. Fulcher, 22 Tenn.App. 670, 125 S.W.2d 501,

508.

15

***

Considering the intention of the Legislature in passing the statute

relied on (T.C.A. Sec. 47-1706), we think it was designed as a

protection against wilful wrongs, such as inducing employees to

break their contract with their employer which would result in injury

and damage to the latter's business interest. The statute is declaratory

of the common law except as to the amount of damages that may be

recovered against a wrongdoer.

Emmco Ins. Co. v. Beacon Mut. Indem. Co., 204 Tenn. 540, 550-51, 322 S.W.2d

226, 231 (1959) (emphasis added). See also Dynamic Motel Mgmt., Inc., v. Erwin

528 S.W.2d 819 at 822 (Tenn. Ct. App. 1975); Edwards v. Travelers Ins. of

Hartford, Conn., 563 F.2d 105, 119-20 (6th Cir. 1977); Continental Motel

Brokers, Inc. v. Blankenship, 739 F.2d 226, 229-30 (6th Cir. 1984).

While this treble damage statute has been in effect since 1907, no case

seems to have directly addressed the charge to the jury as to the burden of proof.

In Myers v. Pickering Firm, Inc., 959 S.W.2d 152 (Tenn. Ct. App. 1997), the third

issue raised on appeal by the defendant cast in treble damages under the statute

was: "3. Whether the court erred in not defining the correct burden of proof to

the jury in regard to the statutory procurement of breach of contract claim of MK"

959 S.W.2d at 155.

Since the court of appeals then affirmed the action of the trial judge in

granting judgment notwithstanding the verdict on the action based upon the

procurement of the breach of contract, this third issue was not addressed. "In view

of our ruling on MK's first two issues, we pretremit MK's third issue." 959

S.W.2d at 162.

Appellee argues against interpreting the language of Emmco and its progeny

as requiring a heightened burden of proof. However, in the absence of any plain

language from the statute on the subject, the "clear showing" standard of Emmco

must prevail.

The elements of the cause under the statute are the same as under the

common law action. As this court has stated previously:

We think the greater weight of authority supports the

16

proposition of law that before there can be a recovery for interference

in the performance or the procurement of the breach of a contract, as

contemplated by T.C.A. § 47-15-113, the following criteria must be

met:

1. There must be a legal contract.

2. The wrongdoer must have knowledge of the

existence of the contract.

3. There must be an intention to induce its

breach.

4. The wrongdoer must have acted maliciously.

5. There must be a breach of the contract.

6. The act complained of must be the proximate

cause of the breach of the contract.

7. There must have been damages resulting

from the breach of the contract.

45 Am.Jur.2d, Interference §§ 3, 4, 5, 6, 7 and 11.

Dynamic Motel Mgmt., Inc. v. Erwin, 528 S.W.2d 819 at 822 (Tenn. Ct. App.

1975).

It is true that the statute is a codification of the common law rule in all

respects except as to damages. See Emmco Ins. Co. v. Beacon Mut. Indem. Co.,

204 Tenn. 540, 551, 322 S.W.2d 226, 231(1959). In the trial court, appellee

successfully argued for a "preponderance of the evidence" burden of proof.5 This

argument ignores the penal nature of the statute. Where the statute itself is silent

as to burden of proof, our courts have supplied the burden. See Emmco Ins. Co.,

supra at 551, 231. See also Lichter v. Fulcher, 22 Tenn. App. 670, 681, 125

S.W.2d 501, 508 (1938).

V. ELECTION

5

The court below expressly found the burden of proof with regard to statutory

contractual interference to be by preponderance of the evidence. Apparently questions B3-B7

on the jury verdict form were for the purposes of establishing what the court believed was the

appropriate standard for the violation of section 47-50-109. The final question on the form was

answered in the negative and reads as follows:

PUNITIVE DAMAGES

If you awarded [sic] answered “Yes” to questions 3 through 7 and found that

Buddy Lee had suffered loss as a proximate result of the actions of William

Morris Agency in response to question 7, do you find that Buddy Lee has shown

by clear and convincing evidence that William Morris Agency acted recklessly,

intentionally, fraudulently or maliciously?

17

Appellees' complaint alleges both common law and statutory inducement

to breach. Upon remand the jury should be instructed regarding the required

Emmco clear and convincing showing of intentional inducement to breach under

47-50-109 as well as the clear and convincing showing of reckless, intentional,

fraudulent or malicious behavior under Hodges v. Toof, in accordance with the

coexistence of a common law tort and statutory action for procurement of breach

of contract. See Polk & Sullivan, Inc. v. United Cities Gas Co., 783 S.W.2d 538

(Tenn. 1989); see also Edwards v. Travelers Ins. of Hartford, Conn., 563 F.2d 105

(6th Cir. 1977). In the event that a plaintiff successfully asserts a cause of action

under Tennessee Code Annotated section 47-50-109 as well as a punitive

damages claim in the common law action for tortious interference with contract,

plaintiff is required to elect between remedies. Plaintiff cannot have “‘double

redress’ for a single wrong”. Purcell Enterprises, Inc. v. State, 631 S.W.2d 401,

409 (Tenn. Ct. App. 1981). See generally Barger v. Webb, 216 Tenn. 275, 391

S.W.2d 664, 666-667 (1965).

On August 30, 1999, the supreme court released its opinion in Concrete

Spaces, Inc., et al v. Henry Sender, et al, No. 01S01-9812-CH-00224 (Tenn. Aug.

30, 1999). In this opinion the supreme court carefully considered the coexistence

of a common law action for breach of contract, punitive damages under Hodges

v. Toof and the statutory remedy provided by the Tennessee Consumer Protection

Act (T.C.A. 47-18-109(a)(3)(1995)). The opinion is analogous to and consistent

with the continued coexistence of both the common law remedy and the statutory

remedy for inducing breach of contract as such coexistence is mandated by Polk

& Sullivan, Inc. v. United Cities Gas Co., 783 S.W.2d 538 (Tenn. 1989). The

court in Concrete Spaces delineates the distinction between punitive damages as

required by Hodges v. S. C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) and treble

damages as may be assessed by mandate of statute same being termed “multiple”

damages.

Since under these holdings a plaintiff simultaneously may pursue a simple

common law remedy, a statutory remedy seeking “multiple” damages and, as an

enhancement in his common law action, “punitive” damages under Hodges, an

election of remedies is required, at least as it relates to statutory “multiple”

18

damages and “punitive” damages under Hodges.

Says the court:

The doctrine of election of remedies is implicated when two

inconsistent and irreconcilable remedies are available to the plaintiff

to redress a single wrongful act. See Barger v. Webb, 391 S.W.2d

664, 667 (Tenn. 1965); Allied Sound, Inc. v. Neely, 909 S.W.2d 815,

822 (Tenn. App. 1995). The purpose of the doctrine is to prevent

double redress for a single wrong, see Barger, 391 S.W.2d at 667;

Barnes v. Walker, 199 Tenn. 364, 368, 234 S.W.2d 648, 650 (Tenn.

1950), and it requires the plaintiff in such a scenario to choose one

theory of recovery under which to proceed. See Forbes v. Wilson

County Emergency Dist. 911 Bd., 966 S.W.2d 417, 421 (Tenn. 1998).

At first glance there appears to be some discord between the

doctrine of election of remedies and Tenn. R. Civ. P. 8.01, which

grants a plaintiff wide latitude in pleading alternative claims for

relief and pursuing an array of theories of recovery in a single action.

A common example of this friction occurs when a plaintiff seeks

multiple damages under an available statutory remedy as well as

punitive damages pursuant to a common law claim. While this type

of alternative pleading is available under Tenn. R. Civ. P. 8.01,

double recovery may occur if the jury decides that the plaintiff is

entitled to both punitive damages and multiple damages.

Almost every jurisdiction addressing this question has

concluded that recovery of both multiple statutory damages and

punitive damages constitutes an impermissible double recovery

because the two forms of enhanced damages serve the same

functions. The purpose of punitive damages is not to compensate the

plaintiff but to punish the wrongdoer and to deter others from

committing similar wrongs in the future. See Coffey v. Fayette

Tubular Prod., 929 S.W.2d 326, 328 (Tenn. 1996); Hodges, 833

S.W.2d at 900. Several Tennessee statutory schemes achieve the

same objective of punishment and deterrence through multiple

damage provisions, which allow for compensatory damages to be

trebled if the defendant’s conduct rises to a specified level of

culpability. Because multiple damages are punitive in nature and not

intended to compensate for the plaintiff’s injury, see Smith Corona

Corp. v. Pelikan, Inc., 784 F. Supp. 452, 483 (M.D. Tenn. 1992);

Lien v. Couch, 993 S.W.2d 53, 58 (Tenn. App. 1998), a plaintiff

cannot recover both punitive damages and multiple damages in the

same cause of action, even if they are each available, because receipt

of both forms of enhanced damages violates the principle against

double recovery. See Edwards v. Travelers Ins. of Hartford, Conn.,

563 F.2d 105, 119-120 (6th Cir. 1977); Lorentz, 834 S.W.2d at 320

(Tenn. App. 1992).

Concrete Spaces, Inc., et al v. Henry Sender, et al, No. 01A01-9812-CH-00224,

1999 WL 668744, ** 4-5 (Tenn. Aug. 30, 1999) footnotes omitted.

19

Having thus analyzed the problems involved in the necessary election of

remedies which prevents double recovery, the court then proceeds to align

Tennessee with what is referred to as the majority rule.

When a plaintiff is entitled to both punitive damages in

conjunction with a common law claim for relief and to treble

damages under a statutory scheme, the majority of jurisdictions

employ a version of the election of remedies doctrine to prevent

double recovery of enhanced damages. Commentators suggest that

two general trends have developed with respect to how and when the

plaintiff’s election is to be implemented. The most prevalent

approach allows the plaintiff to submit to the fact finder all theories

of recovery, including the standards for both punitive damages and

multiple damages. If the jury (and judge, in some instances)

determines that the plaintiff is entitled to both forms of enhanced

damages, the plaintiff may request that the amount of damages under

each remedy be determined before making an election of which

remedy he or she would like the judgment to reflect.

Two objectives are achieved by allowing the plaintiff to select

an award of damages after the judge and jury have decided all the

issues surrounding liability and the entitlement and amount of

enhanced damages: one, improper double recovery is prevented, and

two, the goal of deterrence is realized. See Eastern Star, Inc. v.

Union Bldg. Materials Corp., 712 P.2d 1148, 1159 (Haw. 1985).

Most courts that have adopted this approach agree with the rationale

of the court in Mapp v. Toyota World, Inc., 344 S.E.2d 297, 301

(N.C. 1986), which observed that “it would be manifestly unfair to

require plaintiffs in such cases to elect before the jury has answered

the issues and the trial court has determined whether to treble the

compensatory damages found by the jury . . . .” Moreover,

submitting incompatible and alternative theories of recovery to a jury

creates no conflict or duplicative award because until the jury makes

its findings of liability, no double recovery can exist. Any

duplicative aspect of the jury’s findings is eliminated when the

plaintiff makes an election. See Butler v. Joseph’s Wine Shop, Inc.,

633 S.W.2d 926, 933 (Tex. App. 1982). Another advantage to letting

the fact finder decide each theory of recovery is that all the findings

on liability and damages are preserved for review. See SuperTurf,

660 F.2d 1275, 1279 (8th Cir. 1981).

** *

We agree with the reasoning of the majority of jurisdictions

confronted with this issue that it would be unfair to require election

before a determination of liability and entitlement to punitive

damages and multiple damages has been made. In so concluding, we

agree with the plaintiffs that this approach does not unduly burden

a defendant who has been found liable under more than one theory

of recovery. The majority rule simply allows a plaintiff to realize the

maximum recovery available under the fact finders’ findings. Given

the punitive and deterrent purposes of punitive and multiple

damages, such a result is entirely proper.

20

The majority approach is also consistent with our Rules of

Civil Procedure, which reflect the notion that plaintiffs are free to

pursue several alternative theories of recovery and to structure their

claims in the manner that is most beneficial to them. Again, the

election of remedies doctrine serves only to prevent double redress

for a single wrong. See Wimley v. Rudolph, 931 S.W.2d 513, 515

(Tenn. 1996); Allied Sound, Inc., 909 S.W.2d at 822. If a defendant

has been found liable under more than one theory of recovery, no

inequity results from allowing the plaintiff to choose one of the

claims upon which to realize its maximum recovery of enhanced

damages. In other words, no danger of double recovery exists unless

the plaintiff actually realizes satisfaction of both forms of enhanced

damages. See Freeman v. Myers, 774 S.W.2d 892, 895 (Mo. App.

1989).

Concrete Spaces, Inc., et al v. Henry Sender, et al, No. 01A01-9812-CH-00224,

1999 WL 668744, ** 5-6 (Tenn. Aug. 30, 1999).

Having now settled the law as to the continued coexistence of common law

remedy, statutory remedy seeking “multiple damages,” and common law remedy

enhanced by “punitive damages” under Hodges, and the question of election of

remedies where “multiple damages” and “punitive damages” are both involved,

the court moves on to the problem who makes culpability determinations.

VI. WHO DECIDES CULPABILITY?

We must first note the distinction between Tennessee Code Annotated

section 47-18-109(a)(3), the statute providing for treble damages under the

Consumer Protection Act as was involved in Concrete Spaces, and Tennessee

Code Annotated section 47-50-109, which is the general treble damage statute for

inducing breach of contract involved in the case at bar. Tennessee Code

Annotated section 47-18-109(a)(3) and (4), provide:

If the court finds that the use or employment of the unfair or

deceptive act or practice was a willful or knowing violation of this

part, the court may award three (3) times the actual damage sustained

and may provide such other relief as it considers necessary and

proper.

In determining whether treble damages should be awarded, the

trial court may consider, among other things:

(A) The competence of the consumer or other person;

(B) The nature of the deception or coercion practiced

upon the consumer or other person;

(C) The damage to the consumer or other person; and

21

(D) The good faith of the person found to have

violated the provisions of this part.

Tenn. Code Ann. § 47-18-109(a)(3)(4)(1995).

The supreme court in Concrete Spaces makes it clear that under this statute

it is the trial judge and not the jury that decides whether the defendant’s violation

was knowing and willful and further, the trial judge and not the jury who

considers the four elements of Tennessee Code Annotated section 47-18-

109(a)(4), in determining whether or not to grant treble (multiple) damages.

Concrete Spaces at * 9, fn. 13.

Tennessee Code Annotated section 47-50-109, which is the treble damage

statute in issue in this case, provides:

It is unlawful for any person, by inducement, persuasion,

misrepresentation, or other mens, to induce or procure the reach or

violation, refusal or failure to perform any lawful contract by any

party thereto; and, in every case where a breach or violation of such

contract is so procured, the person so procuring or inducing the same

shall be liable in treble the amount of damages resulting from or

incident to the breach of the contract. The party injured by such

breach may bring suit for the breach and for such damages.

Tenn. Code Ann. § 47-50-109 (1995).

It is readily seen that this statute does not specifically provide whether the

jury or the trial judge is to make the requisite culpability findings for the

imposition of treble (multiple) damages. Neither does the statute specifically

address the question of whether the burden of proof necessary to establish the

right to treble (multiple) damages is by a mere preponderance of the evidence or

by a clear and convincing evidence standard. As noted, supra, the burden of proof

not specifically addressed in the statute has long been settled as being a “clear and

convincing evidence” burden. See Emmco Ins. Co. and Lichter, supra.

Concrete Spaces gives some guidance for applying Tennessee Code

Annotated section 47-50-109 but does not address the issue of who makes the

determination of culpability where the trebling statute is silent on this point. The

Concrete Spaces court says:

22

If a statutory remedy requires the jury to make a determination

of the requisite culpability for multiple damages, the jury should be

required to make that determination on its special verdict form.

Alternatively, if the statute requires the trial court to assess whether

multiple damages are warranted, as does the Tennessee Consumer

Protection Act, then the issue of multiple damages should be decided

by the trial court, after the jury renders an initial determination of

liability, regardless of whether the jury has also awarded punitive

damages pursuant to a common law claim. In the same manner, if

punitive damages are sought, and the jury finds that the defendant

acted intentionally, fraudulently, maliciously or recklessly in

accordance with Hodges, 833 S.W.2d at 901, the plaintiff may then

request a hearing to calculate the amount of the award. Only after

the amount of punitive damages and multiple damages have been

assessed is the plaintiff required to make an election between the two

types of remedies.

Concrete Spaces, Inc., et al v. Henry Sender, et al, No. 01A01-9812-CH-00224,

1999 WL 668744, * 8 (Tenn. Aug. 30, 1999).

We find that the requisite culpability determination under Tennessee Code

Annotated section 47-50-109 must be made by the jury under proper instructions

from the trial court.

VII. JURY INSTRUCTIONS

First of all, since Tennessee Code Annotated section 47-50-109 is simply

declaratory of the common law except as to damages, Emmco Ins. Co. v. Beacon

Mut. Indem. Co., 322 S.W.2d 226, 231 (Tenn. 1959), and since the common law

remedy continues to be viable, coexistive with this statutory treble (multiple)

damage statute, see Polk & Sullivan v. United Cities Gas Co., 783 S.W.2d 538,

542 (Tenn. 1989), it is evident that the jury should first be instructed as to the

elements of the common law remedy and the burden of proof necessary to

establish the common law remedy for compensatory damages, without regard to

such burden of proof as is necessary to establish liability for statutory treble

(multiple) damages or necessary to establish liability for “punitive” damages

under Hodges.

The seven elements necessary to establish liability under the common law

for interference in the performance or procurement of the breach of a contract are

23

the same seven elements set forth in Dynamic Motel Management, Inc. v. Erwin,

528 S.W.2d 819, 822. These elements are:

1. There must be a legal contract.

2. The wrongdoer must have knowledge of the existence of

the contract.

3. There must be an intention to induce its breach.

4. The wrongdoer must have acted maliciously.

5. There must be a breach of the contract.

6. The act complained of must be the proximate cause of the

breach of the contract.

7. There must have ben damages resulting from the breach

of the contract.

528 S.W.2d 819, 822.

These seven elements in Dynamic Motel were copied from the common law

elements asserted in 45 Am. Jur. 2d Interference §§ 3-7, 11 (1999). The burden

of proof necessary to establish the common law action for compensatory damages

is a preponderance of the evidence standard as to these seven elements and the

jury should be so charged.

Secondly, the jury should be charged under Tennessee Code Annotated

section 47-50-109 as to these same seven elements but the burden of proof

necessary to establish these elements under the trebling statute should be “clear

and convincing evidence.” Emmco Ins. Co. v. Beacon Mut. Indem. Co., 322

S.W.2d 226; Lichter v. Fulcher, 125 S.W.2d 501, 508. Upon a finding by the jury

of all seven of the Dynamic Motel factors by a clear and convincing evidence

standard, treble (multiple) damages are automatic.

The jury should also be charged under Hodges v. Toof as to whether or not

plaintiff is entitled to punitive damages. If the jury responds in the affirmative,

then the bifurcated hearing contemplated by Hodges as to the amount of punitive

damages must occur under Hodges’ instructions. When the jury returns with its

verdict as to the amount of punitive damages following the bifurcation hearing,

then and then only the plaintiff must elect whether he will take the multiple

damages assessed under the trebling statute or the punitive damages awarded

under Hodges. He cannot have both.

24

VIII. CONCLUSION

The judgment of the trial court is reversed and the case remanded for a new

trial consistent with this opinion.

Costs are assessed against the appellee for which execution may issue.

_______________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_______________________________________

BEN H. CANTRELL, P.J., M.S.

CONCURRING IN PART

AND DISSENTING IN PART

WILLIAM C. KOCH, JR., JUDGE

25