# FILED January 17, 1996 Cecil Crowso n, Jr. Ap pellate Co urt C lerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTI ON AT JACKS ON

_______________________________________________ BLAKE WEBER, Plaintiff -Appella nt, Shelby Chancery No. 103274-3 Vs. C.A. No. 02A01-9407-CH-00173 JACK MOSES,

Individually and JEFFERSON

PILOT LIFE INS. CO., Defend ants-App ellees.

_________________________________________________________________________ DISSENTING OP

INION

_________________________________________________________________________ CRAWFORD, J. I must respec

tfully dis sent. Plaintiff was employed as defendant's sales manager pur s uan t to a writte

n contra ct which, with resp ect to ter mination, p

rovides: (a) This contr

act may be terminated on written notice by either party, or a t any time in the event the sales manager becomes disabled as deter

mined by th

e compan

y. Disabil

it y for this purpose is the inability of the sales manager due to s ickness or injury to perfo

rm all of t

he duties of the sa

les manager as described in the con

tract. Thi s contra

ct shall te

rminate immediate

ly upon the death of the sales manager, u pon discontinuance of the company's operation, either by withdrawal or otherwise, and the ter

ri tory assigned to the sales manager, or by mutual consent of the parties in writing, and shall, in any case, terminat e on the effective date of the sales man ager's r

etireme nt. Weber was ver bally info rmed on A

ugust 5, 19 92, that hi s sales ma nager c ontract

would be terminated at the end

of August, 1992. Weber was unsuccessful in his efforts to persuade the defenda nts to change the termination decision, and he subsequently receive d written notification of his termination after August 31, 1992. The majority, relying upon the deci sion of the Middle Se ction of this Court in Webster v . Tennesse e Bd. of Re

gents , 902 S.W.2d 412 (Tenn. App. 1995) affirmed the dismissal of Weber's suit which was filed on August 31, 1993; the filing was within one year of August 31, 1992, the date Weber's employment terminated. I have no qua rrel withthe holding in Webster that the cause of

action a ccrueson the dat

e notice of termin ation is received. In Webster

there was no specif

ic definitio n of what

constitute s notice. Howeve r, in2

the case at bar the parties agree d by contract that not ice mean t written n otice. Under this contractual agreement, it is my opinion that until written notice was given there was no notice

as required by the contract. Certainly Weber was informed and had k nowledge that the defendant intended to terminate his employment as of August 31, 1992, but there was no notice to that ef fect. Ap parentl y, on Augu st 31, 1992 , Weber acquies ced in

his termination and later received written notification of his termination, perhaps as an ef fort on the part of

defenda nt to complywith the c ontract . Suit was f iled within

one yea r of the a greed te rmin ation dat e of August 31, 1992, a

nd within one year from the date of written notice of termination as required by the contract. Under these circumst ances, s uit was fi led within one yea r from the date of the accrual of the cause of action, and the order of the trial court dis missing the

case asbarred

by the sta

tute of limitations should be reversed.

____________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S.