Strickland v. City of Lawrenceburg

• Decision Date: 13 November 1980
• Citation: 611 S.W.2d 832
• Parties: Kelley STRICKLAND, Plaintiff-Appellant, v. CITY OF LAWRENCEBURG, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 832

611 S.W.2d 832

Kelley STRICKLAND, Plaintiff-Appellant, v. CITY OF LAWRENCEBURG, Defendant-Appellee.

Court of Appeals of Tennessee, Middle Section.

Nov. 13, 1980.

Certiorari Denied by Supreme Court Feb. 2, 1981.

Paul B. Plant, Harwell, Bottoms & Plant, Lawrenceburg, for plaintiff-appellant.

Charles H. White, White & Carden, Lawrenceburg, for defendant-appellee.

OPINION

LEWIS, Judge.

Plaintiff filed his complaint alleging breach of a contract of June 20, 1973, to perform an audit of defendant's accounts in that plaintiff had been paid only $10,000 of $31,141.35 allegedly due at his hourly rate. Trial was had before the Honorable Joe M. Ingram, Circuit Judge, and a jury. The jury returned a verdict for the defendant. Plaintiff's motion for a judgment n. o. v. or in the alternative for a new trial was denied and plaintiff has appealed.

The pertinent facts are: Plaintiff audited defendant's books for several years. In June, 1973, defendant contacted plaintiff concerning whether plaintiff would be interested in auditing defendant's books for 1973. As a result of that contact, plaintiff and defendant subsequently entered into a "CONTRACT TO AUDIT ACCOUNTS." The contract provided, inter alia, that plaintiff was to be paid for his services on an hourly basis; that defendant would have "all journals, ledgers, and other accounting records ... completed, posted and available for the auditor by July 21, 1973, as promised." On the back of the contract, under the heading "Instructions," the following appears:

All contracts for auditing and preparation of financial statements between an auditor and governing body of any governmental unit or other subdivision of the State of Tennessee require the prior approval of the Comptroller of the Treasury, State of Tennessee. (Such approval is not required for system improvement and similar services of a non-auditing nature.)

Plaintiff and defendant, by its Mayor and Secretary-Treasurer, executed the contract on June 20, 1973. Pursuant to the instructions quoted above, the contract was forwarded to the Comptroller's office where it was approved by Frank L. Greathouse, Assistant to the Comptroller. Mr. Greathouse, prior to granting approval, discussed the contract with plaintiff and then returned the contract to defendant with a letter attached. We set out the letter in full:

June 29, 1973

Honorable Ivan Johnston

Mayor

City of Lawrenceburg

Lawrenceburg, Tennessee 38464

Dear Mayor Johnston:

Enclosed please find a copy of a contract to audit accounts for the City of Lawrenceburg, Tennessee, for the year ended June 30, 1973.

After a conversation with Mr. G. Kelley Strickland, Certified Public Accountant, who will be performing your audit, I have learned that Mr. Strickland will agree to estimate his fee for the audit of the City of Lawrenceburg to be approximately $10,000, and that any work performed in excess of this will be subject to confirmation by your office and the Comptroller of the Treasury's office.

Mr. Strickland stated in his telephone conversation that he had been and would be called upon to do a certain amount of management services for the City of Lawrenceburg, which work would not be in connection with the audit. He stated that in prior years that when he came to audit accounts, that these accounts were not in balance and ready for audit. I would advise you to have Mr. Chapman, the City Treasurer, to bring his books into balance and have them ready for audit with the trial balances balanced and bank accounts reconciled before Mr. Strickland begins his audit procedures other than for cash counts and inventory control, which should be done no later than July 2, which is the first day of the new year.

There has been some publicity concerning the high audit fee in past years and we are hoping that this agreement with Mr. Strickland will help to eliminate that in this year. If any problems occur in this area, we will be glad to consult with you concerning them.

Very truly yours,

/s/ Frank L. Greathouse

Frank L. Greathouse, Director

Division of Special Audit

Plaintiff testified that he received a copy of the letter.

Mr. Greathouse testified, by deposition, that he signed the contract and returned it to defendant with the letter and that he had refused to approve the contract until an estimated limit of $10,000 had been set. Plaintiff testified that he did not make any firm estimate of $10,000 but that he did, upon reaching that level in the audit procedures, go to Nashville and inform Mr. Greathouse that he had reached $10,000. Plaintiff further testified that Mr. Greathouse "didn't say go ahead and didn't say stop" the audit. Plaintiff also testified that he informed Mr. Ivan Johnston, the Mayor of defendant City, that the $10,000 level had been reached.

Both Mayor Johnston and Mr. Greathouse denied that plaintiff informed them that the $10,000 limit had been reached.

Plaintiff presents for our consideration seven issues which we discuss as follows:

I.

That there is no material evidence to support the verdict rendered by the jury herein.

"Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict." TRAP Rule 13(d). In reviewing a judgment based upon a jury verdict, appellate courts are not at liberty to weigh evidence or to decide where the preponderance lies but are limited to determining whether there is material evidence to support the verdict. This applies as well in a breach of contract case tried by a jury just as in all others. Crabtree Masonry Co., Inc. v. C & R Construction, Inc., 575 S.W.2d 4, 5 (Tenn.1978). There is material evidence in the case at bar to support the jury's verdict. While plaintiff testified that he did not agree to the $10,000 limit, and even if he did, he attempted to comply with the terms of the contract by informing both Mayor Johnston and Mr. Greathouse that he had reached the $10,000 level, both Mayor Johnston and Mr. Greathouse testified that plaintiff had agreed to the limit, that plaintiff failed to advise them when he reached the $10,000 limit, and that they did not approve going beyond the $10,000 limit. The jury apparently rejected plaintiff's testimony in favor of testimony of Mayor Johnston and Mr. Greathouse. The credibility of witnesses and the weight to be given to their testimony is for the jury. Williams v. Daniels, 48 Tenn.App. 112, 130-31, 344 S.W.2d 555, 563 (1960). This issue is without merit.

II.

That the Court erred in admitting evidence concerning the amount of accounting fees charged by other accountants prior to and since the audit performed by the Complainant herein.

While the objection here appears to be against the admission of fees charged by auditors other than plaintiff, both before and after the 1972-73 audit, the record discloses that plaintiff was the auditor for the years prior to 1972-73 for which the amounts for fees were introduced. Some of this same evidence came in through plaintiff's own direct testimony. He testified that his fee for the prior year was in the "neighborhood of Nineteen or Twenty Thousand ($19,000.00 or $20,000.00) Dollars."

While we are unable to glean from plaintiff's brief a specific reason that the admission of amounts paid for other audits was error, apparently plaintiff objects that certain of these figures were not relevant and apparently, also, on the ground that the fees were too remotely connected with the 1972-73 audit.

In Tennessee evidence is admissible if it tends to prove the issue or constitutes a link in the chain of proof. Queener v. Morrow, 41 Tenn. 123, 126 (1860); Paine, Tennessee Law of Evidence § 2 (1974). Whether evidence is admissible rests within the sound discretion of the trial court which will be reversed only for abuse of that discretion. Pack v. Boyer, 59 Tenn.App. 141, 149-50, 438 S.W.2d 754, 758 (1968). In the case at bar, the underlying issue is the intent of the parties in setting an alleged ceiling on the fee which plaintiff, absent special approval, could charge. Figures for audits of defendant's accounts in prior years by this plaintiff and by other auditors in subsequent years are relevant in determining the parties' intent. Issue II is without merit.

III.

That the Court erred in refusing to charge Complainant's requested Jury Charge No. 1 in its entirety, to wit:

"T.C.A. 12-432. Bids for professional services awarded on basis of competence and integrity. Contracts by counties, cities, metropolitan governments, towns, utility districts and other municipal and public corporations of this state for legal services, fiscal agent of financial advisors or advisory services, educational consultants, and similar services by professional persons or groups of high ethical standards, shall not be based upon competitive bids, but shall be awarded on the basis of recognized competence and integrity. (Acts 1969, ch. 331, § 1.)"

Except for the title, the Trial Judge charged T.C.A. § 12-432 (now T.C.A. § 12-4-106) in its entirety. Plaintiff also objects to the Trial Judge's explanation to the jury of T.C.A. § 12-432. The Trial Judge stated that the statute did not preclude a city from entering into a contract for a definite amount or putting a ceiling on a definite amount to perform auditing services nor would it prevent a city from entering into a contract on an hourly basis for that service. Our review of the charge reveals no error in the Trial Judge's explanation of T.C.A. § 12-432. Issue III is without merit.

IV.

That the Judge erred in refusing to charge Complainant's Requested Jury Charge Number 7, to wit:

"A breach of the contract takes place when one party disables the other party from performing. Ault v. Dustin, 100 Tn. 366, 45 S.W. 981."

The Trial Judge did indicate to plaintiff's attorney an intention to charge requested charge number 7, but in other language. We have searched the record and find that he did not. However, under the facts of the case...