Tan et al v. Wilbur Smith Associates, Inc

Filing 57

MEMORANDUM AND ORDER: Defendant's Motion for Summary Judgment [Court Doc. 42] is GRANTED IN PART and DENIED IN PART. Defendant's Motion is GRANTED as to Plaintiffs' TCPA claim and such claim is DISMISSED WITH PREJUDICE. Defendant's Motion for Summary Judgment is DENIED as to Plaintiffs' breach of contract and negligence claims. Signed by District Judge Harry S Mattice, Jr on 8/4/2011. (PCS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE
JOSE P. TAN, LEAH N. BURGOS-TAN,
and THERAPEUTIC SERVICES OF
MORRISTOWN, INC.,
Plaintiffs,
v.
WILBUR SMITH ASSOCIATES, INC.,
Defendant.

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Case No. 2:09-cv-25
Judge Mattice

MEMORANDUM AND ORDER
Before the Court is a Motion for Summary Judgment [Court Doc. 42] filed by
Defendant Wilbur Smith Associates, Inc. Defendant argues that it is entitled to judgment
as a matter of law because Plaintiffs cannot succeed on any of the breach of contract,
Tennessee Consumer Protection Act (“TCPA”), or negligence claims. Defendant argues
that Plaintiffs’ TCPA claim is barred by the applicable statute of limitations, that no contract
exists between Plaintiffs and Defendant, and that Plaintiffs’ negligence claims are barred
as a matter of law pursuant to the economic loss rule.
For the reasons outlined below, Defendant’s Motion for Summary Judgment [Court
Doc . 42] will be GRANTED IN PART and DENIED IN PART.
I.

FACTS
The facts, viewed in the light most favorable to Plaintiffs, are as follows.
On August 3, 2005, architect Michael Price (“Mr. Price”) submitted a proposal to

Plaintiff Jose Tan (“Dr. Tan”) concerning architectural services for a new Rehabilitation
Center Dr. Tan desired to construct. (Court Doc. 45-3, Price Letter.) In the proposal, Mr.

Price indicated that his flat $15,000 fee would include a code search to determine building
requirements, review of all systems and production of construction drawings. (Id.) The
letter states that “[s]ite engineering work is excluded from this proposal.” (Id.) Dr. Tan
accepted Mr. Price’s proposal to perform this work, although the parties never executed
a formal contract for these services.
In October 2005, Mr. Price solicited proposals from civil engineering firms to provide
engineering work for the building. (Court Doc. 43, Mem. of Law in Supp. of Def.’s Mot. for
Summ. J. at 2.)

Defendant Wilbur Smith Associates, Inc. (“WSA”) was one civil

engineering firm that submitted a proposal. (Court Doc. 45-1 at 4-5, WSA Proposal.) After
providing Dr. Tan with the proposals, Dr. Tan chose WSA’s proposal.

Mr. Price

communicated Dr. Tan’s approval by e-mail to Randy Corlew (“Mr. Corlew”) of WSA on
November 14, 2005 and stated, “[p]lease be advised that with this email I am authorizing
you to proceed with Jose Tan’s site engineering work per our conversations.” (Court Doc.
45-1 at 5, Price E-mail.) Although the WSA proposal specifies that approval should be
signified by a “signed original authorizing [WSA] to begin the design services,” neither Mr.
Price nor Plaintiffs returned a signed copy of the proposal to WSA.
WSA thereafter prepared plans and design documents which included plans for an
underground vault for storm water storage and control. (Court Doc. 1-2, Compl. ¶ 8.) On
December 29, 2005, Plaintiffs entered into a contract with Wild Building Contractors, Inc.
(“WBC”) to perform the general construction work on the building. (Id. ¶ 9.) Plaintiffs
agreed to pay WBC $634,731 for the construction, which included the underground storm
water storage vault. (Id. ¶¶ 10-11.) In February 2006, however, Ken Scott (“Mr. Scott”)
with WBC informed Plaintiffs that the plans for the underground storm water storage vault
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had been rejected by the City of Morristown. (Id. ¶ 12.) Apparently, however, the City had
not rejected the plan and had instead requested backup calculations to support the design.
(Id. ¶ 13.) Because of the representations made at the time, however, Defendant and
WBC advised Plaintiffs of an alternative plan which would call for a holding or detention
pond at the rear of the property. (Id. ¶¶ 13, 15.) This design change resulted in Defendant
charging an additional fee for the new engineering plans, subjected Plaintiffs to additional
costs from WBC, delayed the completion of the building which resulted in lost rent and
profits, and diminished the value of the property. (Id. ¶¶ 15, 17.)
Plaintiffs originally filed suit against Defendant in the Circuit Court for Hamblen
County, Tennessee on February 9, 2009. (Compl.) Plaintiffs asserted that Defendant was
negligent in providing services to Plaintiffs, that Defendant breached the contract between
them by not adequately working with the City of Morristown to procure approval for the
original plan, that Defendant was negligent and breached the contract because it did not
properly communicate with Plaintiffs regarding the City’s decision on the original plan, and
that Defendant’s actions were unfair or deceptive in violation of the TCPA. (Id. ¶¶ 18-22.)
Defendant removed the case to this Court on February 25, 2009. (Court Doc. 1.)
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 permits a party to move for summary judgment --

and the Court to grant summary judgment -- “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of
material facts must support the position by “citing to . . . materials in the record, including

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depositions, documents, . . . affidavits or declarations . . . or . . . showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c). In
ruling on a motion for summary judgment, the Court must view the facts contained in the
record and all inferences that can be drawn from those facts in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).
The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the
truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue
of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving
party may bear this burden by either producing evidence that demonstrates the absence
of a genuine issue of material fact, or by simply “‘showing’–that is, pointing out to the
district court–that there is an absence of evidence to support the nonmoving party’s case.”
Id. at 325. To refute such a showing, the nonmoving party may not simply rest on its
pleadings. Behrens v. Pelletier, 516 U.S. 299, 309 (1996); see Anderson, 477 U.S. at 249.
The nonmoving party must present some significant, probative evidence indicating the
necessity of a trial for resolving a material factual dispute. Celotex, 477 U.S. at 322. A
mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario,
Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
The Court’s role is limited to determining whether the case contains sufficient
evidence from which a jury could reasonably find for the nonmoving party. Anderson, 477

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U.S. at 248-49; Nat’l Satellite Sports, 253 F.3d at 907. Such a determination requires that
the Court “view the evidence presented through the prism of the substantive evidentiary
burden” applicable to the case. Anderson, 477 U.S. at 254. Thus, if the plaintiff must
ultimately prove his case at trial by a preponderance of the evidence, the Court must, on
a motion for summary judgment, determine whether a jury could reasonably find by a
preponderance of the evidence that the plaintiff’s factual contentions are true. See id. If
the nonmoving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof, the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323. If the Court concludes that a fair-minded jury could
not return a verdict in favor of the nonmoving party based on the evidence presented, it
may enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v.
Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
III.

ANALYSIS
Defendant first argues that Plaintiffs’ TCPA claim must be dismissed because the

one-year statute of limitations has passed. (Def.’s Mem. at 4-5.) Defendant further argues
that if the claim is not untimely, Plaintiffs have not produced any evidence that Defendant
engaged in unfair and deceptive practices, and this failure is fatal to their claim. (Id. at 56.) Plaintiffs indicated in their Response that they were electing to withdraw the TCPA
claim, and the Court interprets this withdrawal as a concession to the claim’s untimeliness.
Accordingly, Defendant’s Motion for Summary Judgment as the Plaintiffs’ TCPA claim is
GRANTED and this claim is DISMISSED WITH PREJUDICE.
Defendant next argues that Plaintiffs’ breach of contract claim must be dismissed

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because Plaintiffs and Defendant did not enter into any contract. (Def.’s Mem. at 6-7.)
Defendant asserts that the only contract it entered into was one with Mr. Price, and that
because Plaintiffs and Defendant never had any contractual relationship, Plaintiffs cannot
complain of any contract breach by Defendant. (Id.)
Plaintiffs, however, contend that the facts show that Plaintiffs and Defendant did
have a contract. (Court Doc. 50, Pls.’ Resp. to Def.’s Mot. for Summ. J. at 4-5.)
Specifically, Plaintiffs state that Mr. Price solicited proposals from site engineers and
reviewed those proposals with Dr. Tan, who made the decision to hire Defendant because
of the price and because of his personal familiarity with Mr. Corlew. (Id. at 4.) Plaintiffs
point out that no one -- neither Mr. Price nor Dr. Tan -- actually signed the proposal by
Defendant to “accept” the contract. (Id. at 5.) Instead, Mr. Price e-mailed Mr. Corlew and
authorized him to proceed with Dr. Tan’s site engineering work. (Id.) Moreover, when
discussing the project with Defendant, Mr. Price told Defendant’s representatives that they
were working for Dr. Tan. (Id.) Dr. Tan was present for meetings about the project and he
-- not Mr. Price -- was asked to make certain decisions with regard to the project. (Id.)
Plaintiffs assert that Mr. Price has stated in his affidavit that he did not enter into a contract
with Defendant. (Id.) Finally, the invoices for Defendant’s work were paid directly by
Plaintiffs. (Id.)
Plaintiffs argue that these facts warrant denial of Defendant’s Motion because, at
the very least, they demonstrate an issue of material fact as to who was in privity of
contract with Defendant. (Id. at 5-6.) Plaintiffs contend that Mr. Price was merely a conduit
or liaison for the contract between Plaintiffs and Defendant, and Mr. Price made it clear to

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Defendant that Dr. Tan was the client. (Id. at 6.) Plaintiffs further argue that the facts
establish that Mr. Price was operating as Dr. Tan’s agent in securing these services. (Id.)
Alternatively, Plaintiffs assert that they are third-party beneficiaries to any contract that
exists between Defendant and Mr. Price, such that they can still claim breach. (Id. at 7-8.)
“The determination of whether a contract has been formed is a question of law.”
German v. Ford, 300 S.W.3d 692, 701 (Tenn. Ct. App. 2009); see also Jones v. LeMoyneOwen College, 308 S.W.3d 894, 904 (Tenn. Ct. App. 2009). The Court therefore rejects
Plaintiffs’ assertion that the existence of the contractual relationship is a question for the
jury.
The Court also rejects Defendant’s argument that it was in a contractual relationship
with Mr. Price, not Dr. Tan. As Defendant points out, there must be an offer, acceptance,
and mutual assent to create a contract. (Def.’s Mem. at 6.) Here, the facts show that the
offer was made by Defendant and sent to Mr. Price. The letter, while addressed to Mr.
Price, is in reference to “Engineering Services for Jose Tan Rehabilitation Clinic.” (Court
Doc. 45-1 at 3.) Mr. Price consulted with Dr. Tan, Dr. Tan chose to accept Defendant’s
proposal or offer, and Mr. Price communicated that acceptance to Defendant. Defendant
knew that Mr. Price was working on a project for Dr. Tan and that the work proposed would
be for the benefit of Dr. Tan, as evidenced by the electronic mail exchange between Mr.
Corlew and Mr. Price. (Court Doc. 45-1 at 5.) Mr. Corlew sent an e-mail to Mr. Price which
read “I think we can do Jose Tan if you want to authorize us to proceed” and Mr. Price
responded, “Please be advised that with this email I am authorizing you to proceed with
Jose Tan’s site engineering work per our conversations.” (Id.)

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The work, therefore, originated with Dr. Tan and was for the benefit of Dr. Tan. It
did not originate with Mr. Price, and Mr. Price did not stand to benefit from the formation
of a contract with Defendant or Defendant’s provision of engineering services. There is no
indication that Defendant did not understand that the proposed work would be performed
for Dr. Tan, not Mr. Price. In fact, Mr. Price testified that he specifically told Mr. Corlew that
Defendant was providing these services for Dr. Tan, not him. (Court Doc. 45-5, Price Dep.
at 14, 23.) In addition, Mr. Price did not accept the contract with Defendant by signing the
proposal and never paid Defendant for the work performed. Although the invoices were
sent to Mr. Price, they were paid directly by Plaintiffs. Finally, Mr. Price has specifically
denied entering into any contract with Defendant. (Court Doc. 50-1, Price Aff. ¶ 6.) The
Court concludes that Mr. Price and Defendant were not parties to the contract.
Instead, from the facts before it, the Court concludes that there is a genuine issue
of material fact as to whether an agency relationship existed between Dr. Tan and Mr.
Price such that a contract exists between Dr. Tan and Defendant. Plaintiffs make this
argument by pointing to the facts that support the existence of a contract between Dr. Tan
and Defendant, and there are ample facts which might support the existence of such a
relationship. In their Response, Plaintiffs contend that, “acting through Price, they hired
the defendant to provide certain engineering and design services . . . .” (Pls.’ Resp. at 1.)
In addition, Plaintiffs assert that Mr. Price acted on behalf of Dr. Tan by soliciting proposals
for the site engineering work. Mr. Price then took these proposals to Dr. Tan, who selected
-- and accepted -- Defendant’s proposal. Mr. Price communicated Dr. Tan’s acceptance
of the proposal to Defendant to signify that Defendant could begin working on the project.
The Court finds that the two parties discussing the contract may have been in very
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similar positions -- that is, just as Mr. Corlew was acting as a representative of Defendant
and had the power to bind Defendant in contract, Mr. Price may have been acting as a
representative of Dr. Tan for the purposes of obtaining site engineering work for the new
clinic and had the power to bind Dr. Tan in contract.
The Court acknowledges that Dr. Tan expressly denied that Mr. Price was his agent
during his deposition. Specifically, Dr. Tan testified as follows:
Q:

Well, are you saying now that Michael Price was your
agent, and he was authorized to enter into contracts
with you?

A:

That’s what I was trying to say earlier, that no, in terms
of the civil engineering, he didn’t act as an agent. I just
–

Q:

He did not?

A:

No. I just don’t know how to contact them at the time or
– I know that he needed to oversee everything, and so
him knowing, you know, the civil engineer, what they’re
doing already and all those things will help. You know,
just having one person kind of being over all in
planning.

(Court Doc. 45-2, Tan Dep. at 68.) On the other hand, Dr. Tan’s affidavit states that he
“authorized Michael Price to communicate on [his] behalf with defendant.” (Court Doc. 502, Tan Aff. ¶ 2.) In addition, Mr. Price testified as follows as to what he told Defendant
about the contract and the relationship:
Q:

All right, sir. And do you typically explain to your civil
engineer, “Hey, look. You’re not going to be working as
a consultant to me; you’re going to be working directly
for the owner, so don’t think you’re working for me?”

A:

Yes, sir.

Q:

All right, sir. And why do you explain that to the civil
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engineer?
A:

Just so they know the process.

...
A:

I said that I had telephone conversations where I told
Mr. Corlew that Mr. Tan had approved his proposal to
do the engineering services, site engineering services,
for his project.

Q:

Okay. And did you go further and say, “And you’re
going to be working for Mr. Tan; you’re not going to be
my consultant”?

A:

I didn’t tell – I did not say that he was not going to be
my consultant, no, sir.

Q:

All right. You just basically said Mr. Tan had approved
paying him $4,000 to do his engineering?

A:

That’s correct.

(Price Dep. at 14, 23.) Mr. Price states in his affidavit that he “assist[ed]” Dr. Tan in
selecting Defendant to perform the engineering services, but also states that “[t]he contract
for provision of civil site engineering services . . . was directly between [Defendant] and Dr.
Tan.” (Price Aff. ¶¶ 5, 7.)
Regardless of these statements, however, the existence of an agency relationship
“does not require an explicit agreement, contract, or understanding between the parties.”
White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000). “[W]hen ‘the
facts establish the existence of an agency relationship, it will be found to exist whether the
parties intended to create one or not.’” Id. (quoting Harben v. Hutton, 739 S.W.2d 602, 606
(Tenn. Ct. App. 1987)). “In its broadest sense, the concept of agency ‘includes every
relation in which one person acts for or represents another.’” Id.
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Tennessee courts have consistently held that whether an agency relationship exists
“‘is a question of fact under the circumstances of the particular case; and whether an
agency has been created is to be determined by the relation of the parties as they in fact
exist under their agreement or acts.’” Id. (citing McCay v. Mitchell, 463 S.W.2d 710, 715
(Tenn. Ct. App. 1970)); see also Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432
(Tenn. 2008); Johnson v. LeBonheur Children's Medical Center, 74 S.W.3d 338, 343
(Tenn. 2002). “The existence of an agency relationship is generally a factual question . .
. . Resolution of the agency issue will require the weighing of evidence and the evaluation
of credibility, tasks not appropriate for summary judgment.” Hagan v. Phipps, No. M201000002-COA-R3-CV, 2010 WL 3852310, *5 (Tenn. Ct. App. Sept. 28, 2010) (citation
omitted).
The Court concludes that the existence of an agency relationship is a genuine issue
of material fact for the jury as factfinder, such that summary judgment on the breach of
contract claim is inappropriate. Should the jury determine that an agency relationship did
exist, the Court would then decide, as a matter of law, whether a contract was formed.
Upon a favorable determination for Plaintiffs that a contract did exist between Plaintiffs and
Defendant, the jury would next decide whether a breach of the contract occurred and, if so,
the damages to which Plaintiffs are entitled. As such, the Court DENIES Defendant’s
Motion for Summary Judgment as to Plaintiffs’ breach of contract claim.
Finally, Defendant argues that Plaintiffs’ negligence claim must be dismissed
because there can be no recovery in tort for purely economic loss when there is no privity
of contract or injury to person or property. (Def.’s Mem. at 8.) Defendant states that

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Plaintiffs’ damage claims are purely economic (i.e. diminution in value, loss of use, lost
income, lost profits) and these types of damages are not permitted in a negligence claim
asserted pursuant to a contract. (Id.)
Plaintiffs argue that the economic loss rule does not apply to this case because
there is privity of contract between Plaintiffs and Defendants, even if Plaintiffs are only
third-party beneficiaries. (Pls.’ Resp. at 8.) Moreover, because the contract is for services
and not goods, and the claim is based in negligent provision of services, the rule does not
apply. (Id. at 9.) Finally, Plaintiffs assert that their damages are not purely economic
because there was damage to the property at issue due to the fact that a retention pond
had to be constructed. (Id.) Plaintiffs argue that the retention pond diminished the use of
the land and it would not have been necessary but for Defendant’s negligence. (Id.)
The Court finds a group of recent cases from a federal court sitting in Tennessee
to be most persuasive on this issue. The cases of Ham v. Swift Transp. Co., 694 F.
Supp.2d 915 (W.D. Tenn. 2010), Loft v. Swift Transp. Co., 694 F. Supp.2d 923 (W.D.
Tenn. 2010), Pascarella v. Swift Transp. Co., 694 F. Supp.2d 933 (W.D. Tenn. 2010) and
Broadnax v. Swift Transp. Co., 694 F. Supp.2d 947 (W.D. Tenn. 2010) all address the
application of the economic loss rule at length. The issue in Ham and the other companion
cases was the application of the rule to negligence claims arising from the provision of
services, rather than the purchase of goods. The Ham court engaged in a thoughtful
analysis, acknowledging the lack of guidance from the Tennessee Supreme Court and
reviewing the available case law from the Tennessee Court of Appeals. Ham, 694 F.
Supp.2d at 921. The Ham court noted that the Tennessee Court of Appeals had “implicitly

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restricted the economic loss doctrine to claims involving products liability or the sale of
goods, at least where the plaintiff can establish a sufficiently direct relationship between
the defendant’s negligent act and the plaintiff’s economic loss.” Id. at 922 (citing Trinity
Indus., Inc. v. McKinnon Bridge Co., 77 S.W.3d 159, 173-74 (Tenn. Ct. App. 2001)). A
later unpublished opinion from the Tennessee Court of Appeals also appeared to restrict
the economic loss rule to products only. Id. (quoting from McLean v. Bourget’s Bike
Works, Inc., No. M2003-01944-COA-R3-CV, 2005 WL 2493479, at *5 (Tenn. Ct. App. Oct.
7, 2005)). The Ham court next addressed an explicit restriction of the rule in a Wisconsin
Supreme Court case and noted that the Wisconsin court’s basis was similar to a basis
articulated by the Tennessee Supreme Court when it limited a plaintiff to UCC remedies
for economic losses for a defective product, rather than permitting damages under a
negligence theory.

Id. at 922-23.

The Ham court concluded that it believed “the

Tennessee Supreme Court would rely on the fact that the economic loss doctrine has its
origins in the UCC to preclude application of the doctrine to suits not involving UCC
remedies, specifically those concerning the provision of services.” Id. at 923.
After reviewing the Ham case and its companion cases and noting the lack of
extensive Tennessee case law on this issue,1 the Court agrees that the economic loss rule
1

In the few cases available, Tennessee courts have said that “[t]he econom ic loss doctrine
is im plicated in products liability cases when a defective product dam ages itself without
causing personal injury or dam age to other property” (Lincoln Gen. Ins. Co. v. Detroit
Diesel Corp., 293 S.W .3d 487, 489 (Tenn. 2009)), that the doctrine does not apply when a
plaintiff asserts a claim for negligent m isrepresentation or negligent supervision (Acuity v.
McGhee Eng’g, Inc., 297 S.W .3d 718, 734 (Tenn. Ct. App. 2009)), that “[t]he rule com es
into play when the purchaser of a product sustains econom ic loss without personal injury
or dam age to property other than the product itself” (McLean, 2005 W L 2493479, at *5),
that “‘Tennessee has joined those jurisdictions which hold that product liability claim s
resulting in pure econom ic loss can be better resolved on theories other than negligence’”
and that the econom ic loss rule “provides that ‘in a contract for the sale of goods where
the only dam ages alleged com e under the heading of econom ic losses, the rights and

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is applicable to the sale of goods, but does not extend equally to contracts for the provision
of services. Therefore, the rule is inapplicable to the instant case, which concerns a
contract for services.
It appears to the Court that further resolution of the negligence claims may depend
on the existence of a contract between Plaintiffs and Defendant. At this juncture, however,
the Court need only conclude that Defendant’s Motion for Summary Judgment as it
pertains to Plaintiffs’ negligence claims is DENIED because the economic loss rule does
not apply to this contract for the provision of services and does not bar such claims.
IV.

CONCLUSION
For the reasons explained above, Defendant’s Motion for Summary Judgment

[Court Doc. 42] is GRANTED IN PART and DENIED IN PART. Defendant’s Motion is
GRANTED as to Plaintiffs’ TCPA claim and such claim is DISMISSED WITH PREJUDICE.
Defendant’s Motion for Summary Judgment is DENIED as to Plaintiffs’ breach of contract
and negligence claims.
SO ORDERED this 4th day of August, 2011.

/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

obligations of the buyer and seller are governed exclusively by the contract’” (Messer
Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W .3d 457, 463 (Tenn. Ct.
App. 2003) (quoting Ritter v. Custom Chemicides, Inc., 912 S.W .2d 128, 133 (Tenn.
1995) and Trinity, 77 S.W .3d at 171), and that earlier cases stood for the principle that “a
breach of a contract for the sale of goods resulting in consequential dam ages is governed
by the U.C.C. despite the fact that the pleadings allege the seller negligently perform ed
the contract” (Trinity, 77 S.W .3d at 173).

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