FILED

December 18,

2001

Cecil Crowson, Jr.

Appellate Court Clerk

SHOLODGE FRANCHISE SYSTEMS, )

INC., )

)

Plaintiff/Appellant, )

) Davidson Chancery

) No. 93-97-II

VS. )

)

) Appeal No.

McKIBBON BROTHERS, INC., ) 01-A-01-9506-CH-00240

)

Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

HONORABLE C. ALLEN HIGH, CHANCELLOR

Eugene N. Bulso, Jr.

Larry G. Hayes, Jr.

BOULT, CUMMINGS, CONNERS & BERRY

414 Union Street, Suite 1600

P.O. Box 198062

Nashville, Tennessee 37219

ATTORNEY FOR PLAINTIFF/APPELLANT

John E. Quinn

MANIER, HEROD, HOLLABAUGH & SMITH

2200 First Union Tower

150 Fourth Avenue, North

Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

WILLIAM C. KOCH, JR., JUDGE
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SHOLODGE FRANCHISE SYSTEMS, )

INC., )

 )

Plaintiff/Appellant, )

 ) Davidson Chancery

 ) No. 93-97-II

VS. )

 )

 ) Appeal No.

McKIBBON BROTHERS, INC., ) 01-A-01-9506-CH-00240

 )

Defendant/Appellee. )

O P I N I O N

The plaintiff counter-defendant, ShoLodge Franchise Systems, Inc. (hereafter

"Sholodge") has appealed from a jury verdict of $327,272 in favor of the defendant counterplaintiff McKibbon Brothers, Inc. (hereafter McKibbon) for damages for breach of a

franchise contract.

Issues presented on appeal by Sholodge are:

1. Whether ShoLodge breached the license agreement, and if

so, whether the breach was material.

2. Whether the Trial Court properly discharged its role as the

thirteenth juror.

3. Whether the jury's award of damages is supported by the

record.

On July 10, 1989, Sholodge and McKibbon executed a "Shoney's Inn License

Agreement" authorizing McKibbon to construct and operate a "Shoney's Inn" on Highway

341 at Perry, Georgia for a period of twenty years. The initial license fee was agreed to be

$150 per room with a minimum total of $15,000. A continuing fee of 3% of gross sales in

each month was payable on the tenth of the following month.

Sholodge agreed:

8. Warranties of Licensor. . . . (a) To make available to

Licensee the privilege of consulting with Licensor's officials

and staff upon problems relating to design, construction,

operation, marketing and advertising, so that Licensee will
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have available to it any experience of Licensor and other

licensees relating to such problems.

. . . .

(e) To maintain supervision over all licensees in order to

assure compliance with Licensor's standards and policies as

from time to time established, and with Licensor's rules of

operation.

(f) To encourage the ever-increasing use of Shoney's Inns on a

national basis.

The agreement contained the following pertinent provisions for termination:

12. Termination. Licensor may, at its option, upon the

occurrence of any one or more of the following events,

terminate this Agreement:

(a) If Licensee fails to pay any amount due to Licensor

hereunder and fails to cure such failure within ten (10) days

after Licensor gives written notice to cure.

(b) If Licensee fails to perform or breaches any covenant,

obligation, term, condition, warranty or certification herein and

fails to cure such breach or fails to perform within thirty (30)

days after Licensor gives written notice to cure.

. . . .

(n) If Licensee serves any food, or allows any food service on

the premises, without the express written consent of Licensor.

13. Obligations Upon Termination. Upon the termination or

expiration of this Agreement, Licensee shall cease to be a

Licensee of Licensor, and:

(a) Licensee shall immediately cease to operate the former

Licensed Unit under the System, and shall not thereafter,

directly or indirectly, represent to the public that the former

Licensed Unit is operated under the System, or hold itself out

as a present or former licensee of Licensor.

. . . .

(d) Licensee shall immediately make such modifications or

alternations as may be necessary to distinguish the former

Licensed Unit and the Premises effectively from its former

appearance and from any other Shoney's Inn System Unit, and

to prevent the operation of any business on the Premises by

Licensee or others in derogation of this Agreement, . . . .
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The agreement also contained the following:

20. Restaurant. . . .

(b) So long as the restaurant is being operated adjacent or in

relative proximity to the Shoney's Inn, Licensee shall not offer

or provide any food or food service at the Licensed Unit for

either on or off-premises consumption without the express

written consent of Licensor. Provided, however, that Licensee

shall be allowed to operate vending machines selling soft

drinks, coffee and snacks on the Premises.

On January 12, 1993, Sholodge filed its complaint, alleging:

. . . 5. Pursuant to Section 12(a) of the Agreement, Shoney's

may terminate the Agreement if Licensee fails to pay any

amount due within ten (10) days of Shoney's giving written

notice to pay.

6. By letter dated December 22, 1992, and attached hereto as

Exhibit "2" (the "Letter"), Shoney's gave Licensee notice that

Licensee was in violation of the Agreement and demanded all

payments due under the Agreement, which demand was refused

by Licensee in further violation of the Agreement.

8. On January 3, 1993, Shoney's terminated the Agreement

pursuant to Section 12(a).

9. Pursuant to Sections 13(a) and 18 of the Agreement,

Licensee is required to pay upon termination all sums owing

Shoney's including actual damages, costs, expenses, court costs

and reasonable attorneys' fees incurred by Shoney's as a result

of the default.

10. Pursuant to Section 13(e) of the Agreement, Licensee owes

Shoney's a royalty fee in the amount of $347,496.76; and also

currently owes Shoney's past due royalties, marketing and

reservation fees in the amount of $5,610.00.

On April 30, 1993, McKibbon filed its answer admitting the execution and violation

of the contract, but asserting that various of its provisions were invalid and that Sholodge

rescinded the contract by violations including the following:

. . . 3. Beginning in 1991 the parent company, Shoney's Inc.,

obviously began losing interest in the Shoney's Inns concept

and as a result development slowed as did the effort to promote

Shoney's Inns on a national basis.

4. Eventually in 1992, Shoney's, Inc. sold its interest in

Shoney's Lodging, Inc., it became Sholodge and Sholodge

continued to ignore development of a national chain and failed

to develop a national reputation.
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5. By 1992, the plaintiff was receiving an average of only one

to two reservations per day from the central reservation system

and Shoney's Inns had no national name recognition and in

particular, no name recognition in the Midwest from which

plaintiff's primary potential market came.

6. In addition, Sholodge permitted some of the Shoney's Inns

in the system to serve food in violation of the provisions of the

contract which created an expectation in the consuming public

which was contrary to the terms of counter-plaintiff's contract.

7. In addition, Sholodge failed to supervise and inspect other

Shoney's Inns within the system so that the reputation of the

entire chain was damaged.

8. By the summer of 1992, counter-plaintiff was losing money

and when plaintiff attempted to consult with and obtain the

assistance of the franchisor, Sholodge, pursuant to the

provisions of paragraph 8(a), in an effort to resolve counterplaintiff's problems, counter-defendant failed or refused to

assist, in violation of the agreement.

9. Throughout the fall of 1992, the plaintiff continued to lose

money and continued to attempt to consult with and obtain the

advice and assistance of Sholodge without avail. Eventually

plaintiff requested that the parties release each other from the

terms of the franchise agreement so that the plaintiff could

attempt to salvage its business, and Sholodge demanded the

sum of $350,000.00 and continued to refuse to address

plaintiff's problems.

Sholodge responded, denying any breach of contract.

McKibbon was permitted to amend its counter-claim to allege fraudulent and

negligent misrepresentation and to sue for $1,000,000.

Sholodge denied the material allegations of the amended counter-claim.

On December 7, 1994, following a jury verdict, plaintiff's suit was dismissed and

judgment was entered in favor of McKibbon for $327,272.00.

On January 6, 1995, Sholodge filed its "Motion to Set aside Verdicts and Judgments

and to Grant Plaintiff a New Trial" on the following grounds:
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1. As thirteenth juror, this Court cannot reasonably accept the

jury's verdicts because said verdicts are against the weight of

the evidence.

2. There was no material evidence in the record upon which

the jury could find that plaintiff materially breached the

contract and therefore: (a) Defendant was not entitled to

damages on its counterclaim, and (b) Defendant's only defense

to plaintiff's claim must fail.

3. From the start, defendant ignored this Court's pretrial Order

and trial rulings about defendant's putting on proof that plaintiff

failed to grow to a national chain, thereby depriving plaintiff of

a fair trial.

On April 10, 1995, the Trial Court entered the following order:

 This matter came on for a hearing before the Honorable C.

Allen High, Chancellor, on the 31st day of March 1995 on the

Motion for New Trial filed by Plaintiff/Counter-Defendant,

Sholodge Franchise Systems, Inc. Upon a review of the

Motion and Brief filed by Plaintiff/Counter-Defendant,

Sholodge Franchise Systems, Inc., the Response filed by

Defendant/Counter-Plaintiff, McKibbon Brothers, Inc., the

statements of counsel at the hearing on this matter, weighing of

all of the evidence at the trial of this case to determine if it

preponderates against the jury's verdicts and the entire record in

this cause, from all which it appears to the Court, after due

consideration, that the Motion for New Trial filed by

Plaintiff/Counter-Defendant, Sholodge Franchise Systems, Inc.,

should be denied and overruled in all respects.

 It is therefore ORDERED, ADJUDGED, and DECREED that

the Motion for New Trial filed by Plaintiff/Counter-Defendant,

Sholodge Franchise Systems, Inc., is DENIED. (Emphasis

supplied.)

-First Issue: Breach by SholodgeOn appeal, a finding of fact by a jury may not be reversed if there is any material

evidence to support it. T.R.A.P. Rule 13(d). If, however, there is a question of law as to

whether the facts found by the jury are legal support for the verdict and judgment, review is

de novo. Union Carbide Corp. v. Huddleston, Tenn. 1993, 854 S.W.2d 87.

One of defendant's complaints was competition from other Sholodge franchisees

which served continental breakfasts.
-7-

Section 12(N) of the agreement provides that the contract may be terminated:

If Licensee serves any food service on the premises without the

express consent of Licensor.

Section 8(e) of the subject agreement quoted above, required Sholodge to "maintain

supervision over all licensees in order to assure compliance with Licensor's standards and

policies . . . and with Licensor's rules of operation."

It is clear that serving food without special permission was contrary to the contract,

policy and rules of Sholodge. There is ample evidence that other Sholodges in the vicinity

did serve food and that this interfered with the patronage of defendant. This was a violation

of the rules, policies, and contracts of Sholodge, unless special permission had been granted. 

The answer of Sholodge to the counter-claim denied that it had ever granted such permission. 

Under Section 8(a), above, Sholodge was obligated to prevent serving of food on the

premises of its other licensees. The failure to do so was a breach of Section 8(a).

Defendant's other complaint was the failure of Sholodge to comply with Section 8(a)

of the agreement, quoted above, which required Sholodge to:

[M]ake available to Licensee the privilege of consulting with

Licensor's officials and staff upon problems relating to . . .

marketing and advertising, so that Licensee will have available

to it any experience of Licensor and other Licensees relating to

such problems.

There is evidence of the following facts:

In June, 1992, defendant's manager telephoned Sholodge seeking help in increasing

patronage. He was told that he needed to talk to Chic Johnson. He obtained an appointment

with Chic Johnson for June 25, 1992, and make a trip from Gainesville, Georgia to Sholodge

headquarters in Gallatin, Tennessee for this purpose. On arrival he was told that Chic

Johnson was on vacation and referred to several others in the Sholodge office, none of whom

offered any assistance. Neither Chic Johnson or any other official of Sholodge contacted

defendant further, except by letter demanding franchise fees. It later developed that the
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Director of Operations was the proper person to assist defendant, but said defendant was

never directed to him. There was testimony that defendant did not get "field support" from

Sholodge.

There is material evidence of facts which legally support a verdict of breach of

contract by Sholodge.

-Second Issue: The Thirteenth JurorThe order of the Trial Court, quoted above, states:

. . . weighing all of the evidence at the trial of this case to

determine if it preponderates against the jury's verdicts . . . it

appears to the Court . . . that the Motion for New Trial . . .

should be denied. . . . (Emphasis supplied.)

Plaintiff insists that the emphasized verbiage, above, indicates that the Trial Court

erroneously applied the standard of "does the evidence preponderate against the verdict"

instead of the standard of "does the evidence preponderate in favor of the verdict."

Plaintiff argues that "the trial court must independently weigh the evidence . . . and

reach the same verdict as the jury," citing Miller v. Doe, Tenn. App. 1993, 873 S.W.2d 346,

wherein this Court held that the judge must independently weigh the evidence. The

requirement that the judge "reach the same verdict" is not found in the cited opinion which

does include "he must be satisfied, as well as the jury," and "unless the verdict has received

the approval of the trial judge." The opinion also states:

 The obligation of a trial judge to act as a thirteenth juror in a

civil trial in this sate is well established. Cumberland

Telephone & Telegraph Co. v. Smithwick, 112 Tenn. 463, 79

S.W. 803 (1904), reads in part as follows:

 The rule in civil cases is that, if the circuit

judge is dissatisfied with the verdict of the jury,

it is his duty to set it aside and grant a new trial,

and that upon its being made to appear to this

court, from statements made by the circuit judge

in passing upon the motion for a new trial, that

he was really not satisfied with the verdict, it
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becomes the duty of this court, when it has

acquired jurisdiction of the cause, to do what the

circuit judge should have done; that is, to grant a

new trial on the ground of the dissatisfaction of

that judicial officer with the verdict. (Citations

omitted) . . . .

. . . .

 If called upon to act as a thirteenth juror following the filing

of a motion for a new trial, the trial judge simply approves a

verdict without any comment, it is presumed by an appellate

court that he has performed his function adequately. Holden v.

Rannick, 682 S.W.2d 903, 905 (Tenn. 1984); Central

Truckaway System v. Waltner, 36 Tenn. App. 202, 253 S.W.2d

985, 991 (1952).

 In the event that the trial court does state his reasons, an

appellate court is to examine them only for the purpose of

determining whether the trial court properly reviewed the

evidence, and was satisfied or dissatisfied with the verdict. 

Smithwick, supra 79 S.W. at 805. However, if in discharging

his duty as thirteenth juror, the trial judge makes comments

which indicate that he has misconceived his duty or clearly has

not followed it, this court must reverse and remand the case for

a new trial. See Nashville, C. & St. L.R. Co. v. Neely, 102

Tenn. 700, 52 S.W. 167 (1899); Holden, supra at 905.

. . . .

 In McLaughlin v. Broyles, 36 Tenn. App. 391, 255 S.W.2d

1020 (1952), the plaintiffs brought suit for injuries sustained in

an automobile accident. The jury returned a verdict in favor of

the defendant.

 In overruling plaintiffs' motion for a new trial, the court stated

as follows:

 In these cases where the evidence is in sharp

conflict the Court does not feel that he has a

right to interfere with the verdict of the jury, and

overrules the motions.

Id. 255 S.W.2d at 1022.

 From the beginning, it appears that the trial judge was being

deferential to the jury and pointing out to counsel that earlier

the jury had heard the same arguments. The court observed

that the jury wanted to be sympathetic to the plaintiffs and that

counsel for plaintiffs "did a good job" in trying the case. The

best the court could say was "I'm not inclined to interfere with

the verdict of the jury, and I approve the verdict of the jury." . .

. .

. . . .
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 Because of these seemingly harmless but unfortunate remarks,

this case must be retried. To avoid the recurrence of a retrial

under such circumstances, we strongly suggest that when a trial

judge overrules a motion for new trial, that he simply state that

he has reviewed the evidence relevant to the issues and

approves the verdict. Anything more unnecessarily runs the

risk of an unwanted new trial.

Miller, 873 S.W.2d at 346-47,349.

The present record indicates that the Trial Judge did review the evidence and did

approve the verdict of the jury without any expression which would invalidate his approval.

In James E. Strates Shows, Inc. v. Jacobik, Tenn. 1977, 554 S.W.2d 613, the Supreme

Court quoted with approval the following:

Where the motion for a new trial asserts that the verdict was

contrary to the weight of the evidence it is the duty of the trial

judge to weigh the evidence and determine whether it

preponderates against the verdict, and if so, to grant a new trial. 

Vaulx v. Tennessee Central Railroad Company, 120 Tenn. 316,

108 S.W. 1142 (1907).

It appears that the Supreme Court has approved the standard mentioned in the order of the

Trial Court.

It is true that there is a minuscule technical separation between "preponderates in

favor of" and "does not preponderate against." The line of distinction is "equipoise." 

However, in the light of the quoted holding of the Supreme Court, this Court is unwilling to

hold that the choice of words by the Trial Court was sufficient to indicate that he disagreed

with the verdict but "went along with the decision of the jury."

No error is found in the function of the Trial Court as "thirteenth juror."

-Third Issue: Support for Amount of VerdictThe damages claimed and shown by plaintiff totaled $352,272. Defendant's witness

explained that, because of the cancellation of the Sholodge franchise, it was necessary for
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defendant to affiliate with another franchise group or chain of motels; and that, in order to

enter another group, it was necessary to completely refurbish the motel to the satisfaction of

the group. The cost of refurbishing was shown to be $327,272, the affiliation fee $25,000,

and the advertising of the new name of the motel - $5,000.00, a total of $357,272. The jury

awarded $327,272.

Plaintiff asserts that these damages are not authorized by paragraph 13(d) of the

Sholodge agreement quoted above. Said paragraph states mandatory requirements

enforceable by Sholodge, but does not include changes necessary to affiliate with another

franchise group. The failure to include in a contract every type of damage for which recovery

can be had does not exclude such omitted damages, if shown to be reasonably within the

contemplation of the contracting parties. Hawkins v. Reynolds, 62 Tenn. App. 686, 467

S.W.2d 791 (1971).

Plaintiff next insists that it is entitled to some mitigation of the costs of refurbishing

because the next necessary refurbishing was thereby postponed. This is a reasonable

argument, but is not supported by any evidence.

Plaintiff complains that the expenses shown by defendant were not shown by

competent evidence to be reasonable. The qualifications of defendant's witness were not

questioned in the Trial Court, either during the trial or upon motion for new trial. Such

objection cannot be presented for the first time on appeal. T.R.A.P. Rule 3(e).

Plaintiff argues that the damages shown by defendant are not attributable to the

breach or cancellation of the franchise agreement by plaintiff. It is clear from the evidence

that an active affiliation with a franchise group is a virtual necessity for the successful

operation of a motel. The loss of the privileges and advantages of a Sholodge franchise made

it necessary for defendant to seek another like affiliation.
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The amount of damages rests in the sound discretion of the jury. Railroad v. Deakins,

107 Tenn. 522, 64 S.W. 477 (1901).

The amount of damages fixed by the jury and approved by the Trial Judge will not be

disturbed on appeal unless a violation of discretion by the jury is shown. Ellis v. White

Freightliner Corp., Tenn. 1980, 603 S.W.2d 125; D.M. Rose & Co. v. Snyder, 185 Tenn. 499,

206 S.W.2d 897 (1947); Strother v. Lane, Tenn. App. 1976, 554 S.W.2d 631.

Exact justice is not always attained, and the law does not require exactness of

computation of damages. Cummins v. Brodin, Tenn. App. 1983, 667 S.W.2d 759.

No reversible error is found. The judgment of the Trial Court is affirmed. Costs of

this appeal are taxed against the plaintiff-appellant. The cause is remanded to the Trial Court

for any necessary proceedings.

Affirmed and Remanded.

_______________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________

SAMUEL L. LEWIS, JUDGE

_____________________________________

WILLIAM C. KOCH, JR., JUDGE