TMS Contracting, LLC v. SmithGroup JJR, INC. ( 2022 )

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
___________________________________
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.
2
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
4
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
10
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
12
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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