TMS Contracting, LLC v. SmithGroup JJR, INC.

09/09/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 7, 2021 Session

TMS CONTRACTING, LLC v SMITHGROUP JJR, INC. ET AL.

Appeal from the Chancery Court for Montgomery County

No. DT-15-3 Laurence M. McMillan, Jr., Chancellor

___________________________________

No. M2020-01028-COA-R3-CV

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The general contractor on a park and marina project brought a professional negligence

action against the engineering firm that designed the project and administered the

construction contract. The jury returned a verdict for the general contractor. And the trial

court approved the verdict. On appeal, the engineering firm argues that it is entitled to a

new trial. It contends that: (1) the jury verdict must be set aside because it is irreconcilably

inconsistent; (2) the general contractor’s expert witness was not qualified to testify on the

engineering standard of care; (3) and there is no material evidence to support the jury’s

findings as to liability or delay damages. Discerning no reversible error, we affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT

and JOHN W. MCCLARTY, JJ., joined.

Robert H. Green and Michael S. Kelley, Knoxville, Tennessee, and Kevin J. Gleeson,

Southfield, Michigan, for the appellant, SmithGroup JJR, Inc.

Gregory L. Cashion and J. Ross Hutchison, Nashville, Tennessee, for the appellee, TMS

Contracting, LLC.

OPINION

I.

A.

SmithGroup JJR, Inc., an architectural and engineering company, designed a large

park and marina complex for the City of Clarksville. The project spanned 131 acres near

the Cumberland River. The City retained TMS Contracting, LLC as the general contractor

for the first three phases of the project.

SmithGroup also oversaw construction of the project. It was SmithGroup’s

responsibility to observe the work in progress and “make a judgment” about whether it met

the contract specifications. Jessie Fink, a landscape architect, was the project manager for

SmithGroup. During construction, she was in daily communication with the resident

project representative.1 And she personally visited the job site about once a month. During

each visit, she alerted City representatives of any installed work she believed fell short of

the contract specifications. She documented her observations in written field reports. For

major problems, she issued TMS a formal notice of nonconformance.

After the project was completed, TMS sued SmithGroup2 for professional

negligence in the design and administration of the project. SmithGroup denied liability

and asserted comparative negligence.

The jury heard testimony from multiple fact witnesses but only one expert. The

expert witness was offered by TMS. SmithGroup did not offer any expert testimony.

Thom Spigner, the owner of TMS, explained this was a “very large, complex

project.” TMS began work in 2009 and obtained final acceptance of all three phases in

April 2012. During that time, the contractor excavated a 28-acre marina, created a 10-acre

fishing pond, and installed miles of underground utilities. It also built a four-lane boat

ramp, two bridges, and six buildings and completed several miles of walking trails, roads,

and parking lots.

Mr. Spigner acknowledged that his company made its share of mistakes along the

way. But “others did as well.” Kyle Jones, project manager for TMS, echoed that

sentiment: “I’m not saying we were perfect on this project. Any time there was a mistake,

1

SmithGroup subcontracted with Westbrook Associated Engineers, Inc. to act as the resident

project representative. A Westbrook employee was on site almost every day.

2

TMS also sued two other entities. TMS voluntarily dismissed its claims against one, and the other

is not a party to this appeal. Thus, we focus on the facts relevant to the claims against SmithGroup.

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we corrected it.” TMS’s claims against SmithGroup were limited to five discrete aspects

of the project—settlement monitoring at Liberty Plaza; on-site stormwater runoff and

erosion; concrete work; walking trails; and the north window wall at Freedom Point

Pavilion.

1. Settlement Monitoring

During excavations, SmithGroup learned that the soil in one area of the park was

unsuitable for building. The soil report from the City’s geotechnical engineer, Earth

Science Engineering, LLC, showed a layer of soft sediment that could compress under

weight. Because of the instability of the soil, the design for the building structures in that

area had to change. Freedom Point Pavilion was built on piles—61-foot steel beams—

resting on the underlying bedrock. And, after much discussion between SmithGroup, the

City, and Earth Science, “the decision was made” to support Liberty Plaza’s retaining walls

with piles but let the plaza itself float.

SmithGroup issued a construction bulletin notifying TMS of these design changes.

Among other things, the bulletin directed TMS to install settlement monitoring plates in

the plaza area. TMS also learned from the bulletin that the geotechnical engineering firm

would evaluate the data from the settlement monitoring plates and notify SmithGroup when

the contractor could proceed with construction of the plaza. It was anticipated that

construction would be delayed for about 60 days. Monitoring began on April 22, 2011.

Sixty days later, SmithGroup told TMS that additional monitoring was necessary.

Construction on the plaza was delayed indefinitely. Landscaping, sidewalks, and other

items in that vicinity were also on hold. But TMS moved forward with construction of the

pavilion.

SmithGroup did not release TMS to begin construction of the plaza until January

13, 2012—205 days later than anticipated. Because of increased costs, TMS asked the City

to remove Liberty Plaza from its contract. The City agreed.

Mr. Spigner and Mr. Jones complained that settlement monitoring delayed

substantial completion of the project for 205 days. According to Mr. Spigner, most of the

major work on the project was “all but finished” when the initial 60-day monitoring period

expired. But TMS still had to set a bridge, pour concrete, and add stone pavers around the

plaza. All of this work required heavy equipment that needed construction access. So

TMS could not install landscaping and sidewalks near the plaza. And some items at

Freedom Point Pavilion could not be completed. This was a significant component of the

project.

Mr. Spigner asserted that “[e]very day . . . we were delayed cost us money.”

Mr. Jones explained that on a typical project, “[a]s you knock items off the to do list, porta

johns can go away. Personnel can go down. General conditions are reduced.” The delay

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on the plaza kept TMS from “cross[ing] items off the list.” So its daily overhead costs

during the period of delay remained steady at $2,604 per day.

Jerry Clark, TMS’s expert witness, faulted SmithGroup for not exploring other

options for the construction of the plaza. In his opinion, it was a breach of the standard of

care for the project designer to simply accept Earth Science’s recommendation of

settlement monitoring without considering the impact of the delay on the construction

project as a whole.

SmithGroup’s project manager, Ms. Fink, claimed that SmithGroup was not

responsible for the settlement monitoring delay. Earth Science—the City’s geotechnical

engineer—proposed this solution. Earth Science reviewed the monthly reports and decided

when plaza construction could start.

She also denied that settlement monitoring delayed substantial completion of the

project. All that was delayed was the construction of the plaza itself. Other work was

being done during this time, including the construction of Freedom Point Pavilion. At

some point, SmithGroup even removed the plaza from the substantial completion

deadlines. And it allowed the contractor to start work on the landscaping and sidewalks in

front of the plaza. TMS poured the sidewalks leading to the plaza in October 2011. It set

the bridge in December 2011, shortly before monitoring ended.

2. Erosion Control

TMS also asserted that SmithGroup’s erosion control plan was deficient. Excessive

water runoff from the paved areas on the site repeatedly ruined TMS’s landscaping efforts.

SmithGroup did not include curbs or gutters in the project design. And the unchecked

water flow continually washed away adjacent grass seed that TMS planted. According to

Mr. Spigner and Mr. Jones, the water velocity was so great that it overwhelmed the

contractor’s erosion controls. TMS tried protective matting, straw, straw wattles, silt

fences, and check dams. Nothing worked. TMS devoted “countless man hours and

resources” to “re-seeding and re-grading” areas ruined by the excessive water flow. TMS

notified SmithGroup about the erosion problem in July 2011. But SmithGroup denied any

responsibility for on-site erosion control. The problem continued unabated until TMS

installed sod in the affected areas at its own expense.

According to Mr. Jones, TMS incurred $73,794.50 in extra material and labor costs

because of SmithGroup’s inadequate erosion control plan. By his calculation, the erosion

problem also delayed substantial completion of the project by 105 days.

Mr. Clark explained that it was SmithGroup’s responsibility to design an erosion

control plan for the project. Typically, drainage on a construction site is controlled through

a system of curbs and gutters or ditches. SmithGroup did not use these methods. It relied

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on sheet flow. During construction, the flow velocities exceeded the capabilities of the

specified erosion controls. In his opinion, SmithGroup’s erosion control plan should have

accounted for these high velocities. This failure was a breach of the applicable standard of

care.

Ms. Fink maintained that it was the contractor’s responsibility to protect the seeded

areas. It was not SmithGroup’s job to tell TMS how to divert the water. The contract

specified a wide variety of erosion controls available for the contractor’s use. She claimed

the contractor failed to properly install protective matting. And it did not properly maintain

other controls it used, such as silt fences and check dams. She showed the jury pictures

that she believed illustrated her point. But, on cross-examination, she admitted that the

pictures were taken after a flood in late April 2011 caused extensive damage to the park.

Ms. Fink also blamed TMS’s landscaping problems on out-of-season planting. The

design plan specified the recommended planting windows. Instead, TMS planted cool

season grass seed during the summer. Again, she was forced to concede that TMS planted

the grass seed in the summer because the April flood had ruined an earlier planting. And

the contractor had installed an extensive irrigation system to alleviate the problem of

planting out of season.

3. Concrete Connections

TMS poured around three miles of concrete sidewalks throughout the park.

Mr. Spigner and Mr. Jones freely acknowledged that some areas of concrete had surface

defects or cracking that had to be replaced. But TMS took issue with SmithGroup’s

insistence that it replace certain concrete connections.

In a few spots, TMS did not connect the sidewalks with the adjacent light poles

exactly as specified in the design plans. The specifications showed seamless “little

[concrete] popouts” at the base of the light poles. To achieve this result, the contractor

needed to pour the concrete for the sidewalk and the popout in one continuous pour.

According to Mr. Spigner and Mr. Jones, strict adherence to the design plan was not always

logistically possible. Concrete can only be poured during favorable weather. Some

sidewalks were poured before the light poles were fully operational. So the contractor

could not create the “little pop-outs.” Once the light pole was finished, TMS connected it

to the sidewalk with a cold joint—a standard industry method.

Ms. Fink required TMS to remove the concrete surrounding the cold-joint

connections back to the nearest joint and re-pour the concrete as specified in the plans.

Mr. Spigner believed Ms. Fink’s decision was punitive. He maintained that the cold-joint

connections met industry standards for quality and durability. And the project was nearly

finished. Removal of the concrete connections damaged the adjacent landscaping, and

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TMS had to repair that as well—all at its own expense. Mr. Jones calculated that TMS

spent $16,500 removing and replacing these concrete connections.

TMS’s expert, Mr. Clark, explained that SmithGroup had a duty to act reasonably

in administering the contract. Admittedly, the cold-joint connections did not meet the

contract specifications. But this connection method was equally durable. In fact, this type

of connection was allowed elsewhere in the park. In his opinion, it was unreasonable to

require TMS to remove and replace quality work for mere aesthetics.

Ms. Fink denied being punitive. It was her job to ensure that the installed work met

the contract specifications. And she believed that the contractor’s connection method was

more likely to crack.

4. Asphalt Walking Trails

TMS also installed over 4,000 feet of asphalt walking trails. Mr. Jones

acknowledged that some sections were missing radii or had low spots. Those problems

were fixed. And none of those costs were included in TMS’s claim.

As Mr. Spigner explained, TMS only sought fair compensation for adding a “tennis

court resurfacer” to the trails at the City’s request. TMS created the walking trails using

the binder mix specified in the contract. Binder mix is a coarse ground aggregate with tar.

In Mr. Spigner’s experience, binder mix was not typically used as a surface coating.

Mr. Spigner claimed that the City was unhappy with the appearance of the

completed trails. The City rejected about a third of them. To solve the appearance issue,

he suggested adding the resurfacer. The City asked him to add the resurfacer to all the

trails for a uniform appearance. He complied. But the City was only willing to pay the

cost of resurfacing the accepted trails. Mr. Spigner rejected the offer. He wanted

$15,131.25—the cost of adding the resurfacer to all the walking trails.

Mr. Clark agreed that the specified binder mix would not provide a smooth walking

surface. As he described it, binder mix is “kind of like a gravel road with tar on it.” He

would not expect it “to have a nice appearance” or to “consistently appear the same from

one section to another.” TMS offered to apply the topcoat at a reasonable price. In

Mr. Clark’s opinion, SmithGroup breached the standard of care by failing to recommend

that TMS be paid a fair price for the extra work.

Ms. Fink responded that the problem was not with the binder mix. Rather, it was

the contractor’s faulty work. The rejected trails had surface defects, incorrect

measurements, low spots, or missing radii. And she maintained that the resurfacer was

added to fix these problems, not just appearance issues. So she recommended that TMS

bear the cost of resurfacing the rejected trails.

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4. Attachment of the North Window Wall

Finally, TMS contended that it incurred damages for the delay caused by a dispute

over the design for the north window wall at Freedom Point Pavilion. During construction,

TMS discovered that the design plan did not specify how to attach the north window wall

to the building structure. SmithGroup maintained that this aspect of the design was the

contractor’s responsibility. Yet it supplied the missing details and approved a change order

compensating TMS for the additional work. Mr. Spigner believed that SmithGroup took

an inordinate amount of time to provide the missing details. According to Mr. Jones, the

north window wall problem delayed construction on Freedom Point Pavilion for 70 days.

Mr. Clark opined that SmithGroup’s design for the north window wall failed to meet

the applicable standard of care. The standard of care required SmithGroup to provide the

contractor with sufficient information to attach the north window wall to the building

structure.

B.

The jury found that SmithGroup breached the applicable standard of care with

respect to all five claims. It also found that TMS was not “at fault” with respect to any

claim. Even so, when asked to apportion fault, it attributed small percentages of fault on

each claim to TMS.

SmithGroup filed multiple motions for a new trial, which were denied. The court

determined that apparent inconsistencies in the jury verdict could be reconciled. It reduced

the amount of damages assessed by the jury for each claim by the percentages of fault

attributed to TMS and entered judgment against SmithGroup in the amount of $427,764.

II.

SmithGroup contends that the trial court committed a host of reversible errors

entitling it to a new trial. It argues that the court erred in approving the jury verdict because

it was irreconcilably inconsistent. And it insists that Mr. Clark was not qualified to testify

as an expert witness. Finally, it maintains that there is no material evidence to support the

jury’s findings on liability or the assessment of delay damages.

We review the trial court’s denial of a motion for a new trial for an abuse of

discretion. Ali v. Fisher, 145 S.W.3d 557, 564-65 (Tenn. 2004). A court abuses its

discretion when it applies the wrong legal standard, reaches “an illogical or unreasonable

decision,” or bases its decision “on a clearly erroneous assessment of the evidence.” Lee

Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

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A. Jury Verdict

If a jury verdict is inconsistent and irreconcilable, we must reverse and remand for

a new trial. See Milliken v. Smith, 405 S.W.2d 475, 477 (Tenn. 1966). “Litigants are

entitled to have their rights settled by a consistent and intelligible verdict.” Tip’s Package

Store, Inc. v. Com. Ins. Managers, Inc., 86 S.W.3d 543, 560 (Tenn. Ct. App. 2001). The

jury, “on a single set of facts and circumstances, cannot reach two different conclusions of

fact and law . . . , unless these opposite, inconsistent conclusions are reconcilable under an

applicable rule of law.” Milliken, 405 S.W.2d at 477.

The verdict form required the jury to answer a series of questions with respect to

fault and damages. The jury found that SmithGroup “breached the applicable standard of

care and therefore was at fault” as to all claims. In response to Question 3, the jury also

found that TMS was not “at fault” with respect to any claims. Yet, in response to Question

4, the jury attributed small percentages of fault to TMS on each claim. And the jury

awarded TMS damages on all claims except for the north window wall.

SmithGroup sees two problems with this. First, the jury found TMS both “not at

fault” and “at fault” for the same claims. Second, the jury awarded TMS no damages for

the north window wall even though it found SmithGroup 70% at fault on that claim.

SmithGroup argues that these conflicting findings cannot be logically reconciled. We

disagree.

It is our duty to construe the verdict in a manner that upholds the jury’s findings if

at all possible. See Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 911 (Tenn. 1999). We

strive to give effect to the jury’s intent if it is “permissible under the law and ascertainable”

from the wording of the verdict. Hogan v. Doyle, 768 S.W.2d 259, 263 (Tenn. Ct. App.

1988) (citation omitted).

The jury’s conflicting findings on fault may be reconciled using ordinary principles

of comparative fault. The jury plainly intended to rule in TMS’s favor. It found that

SmithGroup breached the standard of care with respect to each claim. And it found that

TMS was less than 50% at fault with respect to each claim. Under Tennessee’s system of

comparative fault, “a plaintiff who is less than fifty percent (50%) at fault may recover

damages in an amount reduced by the percentage of fault assigned to the plaintiff.” Ali,

145 S.W.3d at 561.

The jury’s damage assessment also makes sense on these facts. TMS only sought

delay damages on the north window wall claim. And Mr. Jones acknowledged that this

delay period ran concurrently with the delay for settlement monitoring. The jury assessed

$317,340 in delay damages for the settlement monitoring claim. TMS did not seek, nor

was it entitled to, a double recovery. See Ford Motor Co. v. Taylor, 446 S.W.2d 521, 530

(Tenn. Ct. App. 1969) (“[C]are should be exercised to avoid double recoveries.”).

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B. Qualifications of Expert Witness

We will not reverse a trial court’s decision to admit or exclude an expert witness

absent an abuse of discretion. Freeman v. Blue Ridge Paper Prods., Inc., 229 S.W.3d 694,

708 (Tenn. Ct. App. 2007). “A witness may qualify as an expert based upon his or her

knowledge, skill, experience, training, or education.” State v. Scott, 275 S.W.3d 395, 404

(Tenn. 2009) (citing Tenn. R. Evid. 702).

Jerry Clark, an architect with over fifty years of experience, served as TMS’s expert

witness on the standard of care. SmithGroup argues that Mr. Clark was not qualified to

testify as an expert because he was not trained as an engineer and his engineering

experience was woefully out-of-date.

Mr. Clark explained that, when he obtained his architectural degree in 1970,

architects were considered master builders. He took courses in engineering disciplines for

two years as part of his degree program. And for thirty years, he designed a wide variety

of buildings using his engineering knowledge. He developed real estate and did his own

drainage calculations. He had experience with erosion control, concrete, and asphalt. He

understood soil issues. But he conceded that he had not practiced his engineering skills in

approximately 20 years. In his words, “the profession has evolved over the past 20 years

and the boards have delegated those responsibilities out as projects have become more team

oriented and more complex.” While he had recently completed a few continuing education

courses in civil engineering, he could not explain modern engineering software in any great

detail.

We discern no abuse of discretion in allowing Mr. Clark to testify as an expert

witness. Mr. Clark had both training and experience in engineering. And he was

knowledgeable on the relevant topics. So an engineering degree was not essential. See

Martin v. Sizemore, 78 S.W.3d 249, 274 (Tenn. Ct. App. 2001) (“[N]othing in Tenn. R.

Evid. 702 precludes the introduction and consideration of expert testimony by a witness

whose profession differs from the one at issue, as long as the witness can testify

authoritatively regarding the applicable standard of care and can explain how the conduct

at issue breaches this standard.”). Like the trial court, we conclude that SmithGroup’s

objections go to the weight of Mr. Clark’s testimony, not its admissibility. See Payne v.

CSX Transp., Inc., 467 S.W.3d 413, 455 (Tenn. 2015) (explaining that “[i]f the expert

testimony qualifies as admissible, the trial court’s gatekeeping function is completed”);

GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 546 (Tenn. Ct. App. 2005) (finding no

abuse of discretion in admission of expert testimony when objections went to the credibility

of the expert’s opinions); Bradford v. City of Clarksville, 885 S.W.2d 78, 83 (Tenn. Ct.

App. 1994) (finding no abuse of discretion when objections went to weight).

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C. Material Evidence to Support the Jury Verdict

SmithGroup contends that the evidence at trial does not support a “finding” that it

owed TMS a duty of care with respect to settlement monitoring. Proof of a duty of care is

an essential element in a negligence action. Bradshaw v. Daniel, 854 S.W.2d 865, 869

(Tenn. 1993). Whether a duty of care exists is a question of law for the court. Id.

This is a professional negligence action. As we perceive the argument, SmithGroup

does not dispute that it owed a duty of reasonable care to TMS as the designer and

administrator of this project. Rather, it argues there was no proof at trial that SmithGroup

was responsible for the settlement monitoring delay. Whether SmithGroup’s acts or

omissions constituted a breach of the applicable standard of care is a question of fact for

the jury. See McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 904 (Tenn. 1996)

(cautioning that “the question of duty and of whether defendants have breached that duty

by taking or not taking certain actions is one for the jury to determine based upon proof

presented at trial”); Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. Ct. App. 1990)

(explaining that “once a duty is established, the scope of . . . the standard of care is a

question of fact”).

Our task then is to ascertain whether the record contains any material evidence to

support the jury’s findings. Kelley v. Johns, 96 S.W.3d 189, 194 (Tenn. Ct. App. 2002).

In a material evidence review, we do not reweigh the evidence or re-evaluate witness

credibility. Grissom v. Metro. Gov’t of Nashville, Davidson Cnty., 817 S.W.2d 679, 684

(Tenn. Ct. App. 1991). That is the jury’s province. Ferguson v. Middle Tenn. State Univ.,

451 S.W.3d 375, 383-84 (Tenn. 2014).

Whether evidence is material has nothing to do with its weight. Kelley, 96 S.W.3d

at 194. “Material evidence” is evidence “which must necessarily enter into the

consideration of the controversy and by itself, or in connection with the other evidence, be

determinative of the case.” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 422

(Tenn. 2013) (quoting Knoxville Traction Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905)).

We take the strongest legitimate view of the evidence supporting the verdict, including all

reasonable inferences, assume the truth of the supporting evidence, and discard all

countervailing evidence. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5

(Tenn. 1978). If there is any material evidence to support the verdict, we must affirm. Id.

1. Breach of the Applicable Standard of Care

SmithGroup insists that there is no material evidence to support the jury’s finding

of liability on the settlement monitoring claim. Ms. Fink claimed that Earth Science

recommended settlement monitoring, evaluated the monitoring data, and decided when

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construction of the plaza could move forward.3 Even so, “determining whether a

professional’s conduct complies with the applicable standard of care” requires expert

testimony. Martin, 78 S.W.3d at 272; Dooley, 805 S.W.2d at 384-85 (“Professionals are

judged according to the standard of care required by their profession.”). Ms. Fink was not

an expert witness. Mr. Clark was.

Mr. Clark recognized Earth Science’s role on this project. But he maintained that

SmithGroup, as the design professional, was ultimately responsible for deciding how to

design the plaza in light of the instability of the soil. Simply accepting the geotechnical

firm’s recommendation, without more, was a breach of the standard of care. In his opinion,

SmithGroup should have considered other options. At a minimum, SmithGroup should

have considered the impact on the project as a whole of an extended delay for settlement

monitoring.

SmithGroup argues that Mr. Clark’s mistaken belief that SmithGroup retained Earth

Science as a consultant, not the City, “undermines the weight and credibility” of his

opinions. When confronted with his mistake, Mr. Clark maintained that it did not affect

his opinion. And we will not reweigh the evidence or re-evaluate Mr. Clark’s credibility

on appeal. See Grissom, 817 S.W.2d at 684.

Material evidence also supports the jury’s findings that SmithGroup breached the

applicable standard of care with respect to the remaining claims.4 In arguing otherwise,

SmithGroup emphasizes its own proof and various perceived deficiencies in TMS’s

evidence. But we view the evidence in a different light. See Crabtree Masonry Co., 575

S.W.2d at 5.

Mr. Spigner and Mr. Jones recounted the problems TMS encountered with

stormwater runoff and erosion on the job site. They claimed that none of the erosion

controls the contractor installed were effective. The water velocity was overwhelming.

Mr. Clark opined that SmithGroup’s erosion control plan failed to properly account for

these high velocities. In his opinion, “that was a design responsibility and not a

construction responsibility.”

Mr. Spigner and Mr. Jones acknowledged that the concrete connections did not meet

the contract specifications. Yet they claimed that the cold-joint connections were equally

durable. Mr. Clark agreed. He explained that the administrator of a construction project

3

Some evidence in the record suggests that SmithGroup may have had more involvement than

Ms. Fink indicated. On January 13, 2012, Mr. Jones received an email message from SmithGroup that

provided: “In discussions with the City and Earth Science Engineering earlier this week, we jointly decided

to cease settlement monitoring of the Liberty Plaza.”

4

SmithGroup does not dispute the jury’s finding that it breached the standard of care with respect

to the north window wall.

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had a duty to act reasonably. Yet SmithGroup required the contractor to remove and

replace extensive amounts of concrete for mere aesthetics. The repair work was expensive,

and it damaged the adjacent landscaping. In Mr. Clark’s opinion, SmithGroup’s decision

was unreasonable under the circumstances.

Similarly, SmithGroup recommended that the City pay TMS for resurfacing two-

thirds of the asphalt trails. TMS used the specified binder mix for the asphalt walking

trails. The City was not happy with the appearance of the trails. TMS added a tennis court

resurfacer to all the trails at the City’s request. Mr. Clark opined that SmithGroup’s

recommendation breached the standard of care. It should have recommended that the City

pay TMS a fair price for its work.

2. Damages for Delay

SmithGroup asserts that there is no material evidence to support the jury’s finding

that TMS was damaged by the settlement monitoring delay. But Mr. Spigner testified to

the work in the plaza area that was on hold during the delay period. When the initial 60-

day monitoring period ended, TMS was “all but finished with the rest of the project.”

Mr. Spigner and Mr. Jones asserted that, for the most part, the contractor was working on

punch-list items in the rest of the park. The only significant outstanding work was in the

plaza area. And it cost TMS money to remain on site every day.

Damages for delay can include increased overhead and other costs “that can

reasonably be attributed to the performance of the work that was delayed.” Moore Const.

Co., Inc. v. Clarksville Dep’t of Elec., 707 S.W.2d 1, 15 (Tenn. Ct. App. 1985). Mr. Jones

claimed that it cost $2,604 for TMS to be on site each day during this delay period. He

calculated that number based on the costs directly attributable to oversight or day-to-day

operations for the outstanding jobs. A properly authenticated business record summary

supporting his calculations was admitted into evidence without objection. He maintained

that the outstanding work in the plaza area prevented TMS from “cross[ing] items off the

list.” So TMS was unable to reduce its overhead costs during the delay period.

SmithGroup questions Mr. Jones’s calculations, claiming that he did not account for

the work being done elsewhere on the project. Mr. Jones and Mr. Spigner maintained that

only minor work was being done elsewhere on the project during this period. The jury was

entitled to believe their testimony. Even so, the jury appears to have taken SmithGroup’s

objections into consideration. Mr. Jones claimed that TMS sustained $423,120 in damages

for this delay period. The jury only awarded $317,340.

III.

We conclude that SmithGroup is not entitled to a new trial. Based on Mr. Clark’s

training and experience in engineering, we discern no abuse of discretion in the court’s

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decision to admit him as an expert witness. The jury’s findings were supported by material

evidence in the record. And the trial court properly reconciled the inconsistencies in the

jury verdict. So we affirm the trial court’s judgment in all respects.

s/ W. Neal McBrayer

W. NEAL MCBRAYER, JUDGE

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