Clark & Associates Architects, Inc. v. Lewis

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
CLARK and ASSOCIATES, )
FILED
ARCHITECTS, INC., )
) January 14, 1999
Plaintiff/Counter- ) Montgomery Chancery No. 95-08-0017
Deft./Appellee ) Cecil W. Crowson
) Appellate Court Clerk
VS. ) Appeal No. 01A01-9802-CH-00088
)
RONNIE LEWIS and wife, )
SALLY LEWIS, )
)
Defendants/Counter- )
Pltfs./Appellants )
APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
THE HONORABLE CAROL A. CATALANO, CHANCELLOR
LARRY J. WALLACE
Clarksville, Tennessee
Attorney for Appellants
LAURENCE M. McMILLAN, JR.
Clarksville, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Defendants Ronnie Lewis and Sally Lewis (“Lewis” or “Appellants”) appeal the
judgment of the trial court awarding Plaintiff Clark and Associates Architects, Inc. (“Clark”
or “Appellee”) the sum of $18,112.40 for architectural fees.
I. Factual and Procedural History
In March, 1994, Lewis contacted Clark in order to secure an architect to design a
day care center. Lewis intended to build the building himself and lease the building to his
daughter who intended to run a day care business. The parties met on April 1, 1994 and
at that time Lewis’s daughter knew she wanted a unique day care center. It was to be a
two-story structure, constructed with wood framing, and built on the edge of a major
sinkhole which provided drainage for the entire surrounding area.
During the initial meeting, the parties agreed that Clark would perform architectural
services for Lewis. This agreement was not put into writing. Clark contends the parties
agreed Clark would charge an hourly rate and Lewis would reimburse costs with a 15%
markup with no guarantee on fees. Lewis contends the parties agreed that the cost for
Clark’s services would not exceed $11,000.00, but could range from $8,000.00 -
$11,000.00.
At trial, Lewis attempted to introduce evidence of a prior architectural project
completed by Clark known as the “Carousel Cottage Day Care Center” in which Clark set
a fixed fee. Lewis contended that during the contracting stage, the parties discussed fully
the “Carousel Cottage” project and Clark even showed the “Carousel Cottage” as an
example on his computer to the Lewis’s as a better idea of how their day care center might
look when completed and also what they would be getting at the cost of $8,000.00 -
$11,000.00.
Clark argued that the day care center at issue in this case was a custom day care
center, whereas the “Carousel Cottage” was simply a site adaptation of an existing set of
plans that had already been done. Clark contended that any evidence concerning the
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unrelated day care center was irrelevant. The chancellor did not allow evidence of the
“Carousel Cottage” project.
During his case in chief, Lewis called as an expert witness, John Weatherby, a
licensed architect from Nashville, Tennessee. The chancellor stated that she had no
problem recognizing Weatherby as an expert. Lewis sought to elicit testimony on what
Weatherby would have charged and/or what a reasonable architect’s fee would have been
for the services Clark provided.
Weatherby admitted that he had not reviewed the plans created by Clark for the day
care center. An objection was raised by counsel for Clark. Further attempts were made to
lay a foundation and bolster W eatherby’s credibility. Weatherby testified that his opinion
for the services would be based on completion of the entire project. He testified that he had
reduced his fee accordingly based on what Clark had performed on a preliminary basis and
that Clark’s preliminary work was adequate for him to provide a figure regarding the
reasonable services involved.
In support of his objection, Clark pointed out that the expert admitted he had not
studied the plans, and that his estimate was based on three pages and not the full twenty-
two. Clark argued the expert never reviewed the plans, the fees charged for the plans, or
the supporting documentation (time records) for those fees. It appeared the expert was
basing his opinion on a portion of Clark’s work product which was given to him by Lewis
without explanation. Clark also noted that the expert also gave no consideration to the
many meetings he had with Lewis’s daughter to work out the plans, and the meetings and
time required to perform the drainage calculations due to the site being next to the major
sinkhole. Ultimately, the chancellor did not allow Weatherby to testify as to what a
reasonable value would be for Clark’s services and specifically would not allow a written
estimate.
At the close of all the evidence, the chancellor granted judgment to Clark for the
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sum of $18,112.40 against Defendants Lewis. This appeal by Lewis followed.
II. Evidence of Other Day Care Project
Appellants contend that the trial court erred in not allowing relevant evidence to be
presented regarding costs on a similar project performed by Clark known as “Carousel
Cottage Day Care Center.” At trial, Lewis testified that Clark agreed to do the Lewis project
for a flat fee of $8,000.00 - $11,000.00, and showed the “Carousel Cottage” as an example
of how their day care center might look when completed and also what they would be
getting at the cost of $8,000.00 - $11,000.00.
Clark testified that the parties agreed Clark would charge an hourly rate and Lewis
would reimburse costs with a 15% markup with no guarantee on fees. In objecting to the
admissibility of the “Carousel Cottage” costs, Clark contended that the day care center at
issue in this case was a custom day care center, whereas the “Carousel Cottage” was
simply a site adaptation of an existing set of plans that had already been done and
therefore the fee charged for the “Carousel Cottage” was irrelevant.
“Relevant Evidence” means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence. State v. Banks, 564 S.W.2d 947, 949
(Tenn. 1978); Tenn. R. Evid. 401. The admissibility of evidence rests within the sound
discretion of the trial court and its decisions in that regard will not be disturbed on appeal
unless there has been an affirmative showing that the trial court abused its discretion.
Patton v. Rose, 892 S.W.2d 410 (Tenn. App. 1994); Inman v. Aluminum Corp. of America,
697 S.W.2d 350 (Tenn. App. 1985); Austin v. City of Memphis, 684 S.W.2d 624 (Tenn.
App. 1984).
There was testimony by both parties that the Lewis day care center was to be
unique. It was to be a two-story structure, constructed with wood framing, and built on the
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edge of a major sinkhole which provided drainage for the entire surrounding area. Clark
testified that his previous day care centers were one story, steel frame structures, and
none was built on the edge of a major sinkhole. Clark further testified that he had done at
least twenty-three day care projects and charged a flat fee on only one project, which was
the Carousel Cottage project. Clark explained that the Carousel Cottage project was
merely a site adaptation (using plans already done and adapting them to a new site) and
it was done for a fixed fee because the owner was securing an SBA loan and had to have
a fixed amount to go forward with the contract.
The chancellor sustained Clark’s objection to the relevance of the Carousel Cottage
project and excluded the evidence. From our examination of the record, we cannot say that
the trial court abused its discretion by excluding this evidence.
III. Expert Testimony
Appellants’ final contention is that the trial court erred by not allowing Appellants’
expert witness to testify what he would have charged and/or what a reasonable architect’s
fee would have been for the services Clark provided to Appellants regarding the proposed
day care center. Appellants called John Weatherby to the stand to testify as an expert. The
chancellor stated that she had no problem recognizing Mr. Weatherby as an expert, but
concluded that she would not be assisted by his testimony.
Tenn. R. Evid. Rules 702 and 703 provide:
Rule 702. Testimony by Experts. - If scientific, technical, or
other specialized knowledge will substantially assist the trier of
fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise.
Rule 703. Bases of opinion testimony by experts. - The
facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence. The court shall
disallow testimony in the form of an opinion or inference if the
underlying facts or data indicate lack of trustworthiness.
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Mr. Weatherby testified that he had not studied the plans created by Clark. He
testified that he had “just glanced through them.” The chancellor questioned Mr. Weatherby
further on the basis for his opinion.
THE COURT: Mr Weatherby, your estimate that you’re going
to give for the value, is it for those three sheets or those 22?
A: Just for the three. I can’t base it on Mr. Clark’s plans, I
haven’t studied these in detail.
It appears that Lewis went to Weatherby with three sheets (two Xeroxed floor plans
and the site plan with no building on it) prepared by Clark and asked for an estimate to
complete the project. Weatherby testified that he only discussed very briefly with Lewis
what the proposed project entailed as he thought he was merely giving an estimate. He
then took the preliminaries to his engineers and each one gave him a price they would
charge.
Mr. Weatherby was prepared to give an opinion on what he would have charged for
this project, figuring in the fact that the preliminaries were already completed. He had not
reviewed the plans created by Clark, nor had he examined the fees charged by Clark for
the plans, nor the supporting documentation for those fees. There was testimony by Clark
and Lewis’s daughter that there had been several meetings to work on the unique design
of the center. There was also testimony by Clark that a great deal of time and planning was
required to perform the drainage calculations due to the site being next to a major sinkhole.
It does not appear that Weatherby’s opinion had taken any of this into account, as he did
not examine any of Clark’s time records.
Lewis disputed Clark’s fees charged to produce the architectural plans for the day
care center. The issue was whether the fees charged for the work done by Clark were
reasonable. In essence, Lewis sought to introduce an estimate from another architect to
prove that Clark’s fees were unreasonable. The chancellor found that such testimony
would not assist her in determining what Clark’s plans were worth. In order to give an
opinion as to the worth of the actual work done by Clark, Weatherby should have reviewed
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Clark’s plans, time sheets, and supporting documentation. In making her ruling, the
chancellor stated the following:
So, this far the Court can’t find enough of Mr. Weatherby’s
involvement with the plans he’s got in his hands to be able to
tell the Court what those plans are worth.
And he came here, obviously, with a figure in mind of what he
would charge if he could take up where the floor plans and - -
but the floor plans are not all there is [sic] to what Mr. Clark
has done.
So, even if I hear his figure, and unless he tells me he has
studied all of those pages and in his opinion as an expert,
which I have no problem recognizing him as an expert - - in his
opinion as an expert that these plans and the hours it took to
develop them would justify a fee of X dollars, I’m not assisted
by his testimony.
It is also important to note that Tennessee Rule of Evidence 703 requires that the
evidence “substantially assist the trier of fact,” while its federal counterpart requires only
that the evidence “assist the trier of fact.” Fed.R.Evid. 702. This distinction indicates that
the probative force of the testimony must be stronger before it is admitted in Tennessee.
McDaniel v. CSX Transp. Inc., 955 S.W.2d 257, 264 (Tenn. 1997). Similarly, Tenn. R. Evid.
703 states that “[t]he court shall disallow testimony in the form of an opinion or inference
if the underlying facts or data indicate lack of trustworthiness.” There is no similar
restriction in the federal rule. Fed.R.Evid. 703. Thus, as one writer has observed, “the
additional language . . . [in the Tennessee Rule] is obviously designed to encourage a
more active role in evaluating the reasonableness of the expert’s reliance upon the
particular basis for his or her testimony.” McDaniel at 265 (citing R.Banks. Some
Comparisons Between the New Tennessee Rules of Evidence and the Federal Rules of
Evidence, Part II, 20 Mem.S.U.L.Rev. 499, 559 (1990)).
The chancellor concluded that an estimate by another architect (recognized by the
court as an expert), who had not reviewed the work done by Clark, would not substantially
assist her in determining the reasonableness of the fee charged by Clark. In general,
questions regarding admissibility, qualifications, relevancy and competency of expert
testimony are left to the discretion of the trial court. McDaniel at 263-64. The trial court’s
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ruling in this regard may only be overturned if the discretion is arbitrarily exercised or
abused. Id. It does not appear that such discretion was arbitrarily exercised or abused in
the present case.
IV. Conclusion
The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to
Appellants, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
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