### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 2, 2003 Session CHATT ANOOGA -HAMIL TON CO UNTY HOSPIT AL AU THORITY d/b/a ERLANGER MEDICAL CENTER v. ADE ONI, M.D. Direct Appeal from the Circuit Court for Ham ilton County No. 00C590 Hon. Jacqueline E. Schulten, Circuit Judge

FILED MAY 22, 2003 No. E2002-01758-COA-R3-CV

Action on lease and Trial Court awarded Judgment for rent and expenses. On appeal, we affirm as modified.

Tenn. R. App. P.3 Appeal as of R ight; Judgm

ent of the C ircuit Co

urt Affirm

ed, as Modified.

H ERSCHEL P ICKENS F RANKS , J. delivered the opini on of the c ourt, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
Jeffrey D. Boeh m, Chattan ooga, T ennesse e, for A ppellant

. Robert G. Norred, Jr., Chattanooga, Tennessee, for Appellee.

OPINION

In this action on a

written lease and

other agreement with defenda nt, it was alleged that no rent had been

paid by defenda nt, and tha

t $18,600. 00 was ow ed in bac k rent. Attorney’s fees were sought under the terms of the lease, and also that def endant owed $3,980.61 for services provided pursuant to a telep hone ans wering

agree ment. Defendant

answered and Counter-claimed. He denie d tha t he signe d the writ

ten leas e attached to the Compl aint, and asserted that the parties had an oral agre ement which controlled. He1 Defendant testified he was an employ ee of Omni Primary Ca

re. -2- claime d that his back rent was only $13,061.00 and acknowledged that he had e ntered into the telephone agreement, but that he terminate d it on October 3, 1997.

In his cou nter-c laim, defendant asserted that he and plaintiff entered into an Agreement

on Septe mber 1, 1996, and that h e was to b e reimbu

rsed $120 ,000.00 f

or one y ear in expenses from plaintiff. He alleged that plaintiff failed to reimburse him for the last $1 0,190.00 i n expenses he incur

red, and that bec ause of t

his failur e, he ha d equipme

nt reposs essed and lost employ ees, as well as his practice being damaged. In re sponse, p laintiff amended its compla

int to add Omni Primary Care

as a def endant, 1 and further alleged that defe ndant had occupied office space since Septembe

r 1996, a nd had fa iled to pa y r ent from S eptembe

r 1996 unti l A pri l 1998, and that it was owed $1,320.00 for services under the telephone agree ment, and $2,259.55 for services from Telecom phone service, from June 1997 to February 1998. Following an evidentiary hearing, the Trial Court entered an O r der find ing that defendant “was soli cited by

Erlang er to fill

a need for prima ry car e physicians at the f

acility, and entered into a Physicians Services Agreement on September 1, 1996.” The Court found that “on June 1, 1997 with an Addendum signed in August of 1997, the parties entere d into aProfessional Office Building Lease.” The Court f urther found that

the Phy sic ians Services Agreement provided that defendant was to be paid up to $120,000.00 per ye ar in “reimbursable non-capital office e xpenses”, and that “herein lies the rub between the two parties.” The Court said that defendant owed Erlanger for rent and telephone expenses with an agree d offset of $10,000.00, plus reasonable attorney ’s fees and costs. The Court further found that defenda nt owed r ent from Ja

nuary 1, 1997 to

April 1, 1998, in the sum of $27,988.65. The “Court held that although defendant claimed he had cancelled the telephon e triage agree ment, he continued to receive services under the agreement and the “overwhelming proof” e stablishe d that he owed $1,300.00 in unpaid telephone triage agr eement costs. The Court said there was no dispute that defendant owed for phone service s from Telecom in the a mount of $2,259.55, and that the total award against defe ndant was $21,548.20 plus attorney’s f

ees of $7,110.00. On appeal, defendant’s issue as stated is “whether theTrial Court misconstrued the successive agree

ments and render ed a judg ment cont rary to the fa cts and the weight of the evidence”. The issue as s tated is too general to review. Howeve r, defendant in his brief

specifically r

aises issues as to cer tain amounts awar

ded ag ainst him by

the Tria l Court. Our standard of review of

the trial court’s Judgment i s de novo witha presumption of correc tness of th

e trial c ourt’ s f

indings of fact, un

less the p reponde rance o f the evi dence is otherwis e. Tenn. R. App. P. 13 (d); McCarty v. McCarty , 863 S.W.2d 716 (Tenn. Ct. App. 1992). No presumption of

correctness attaches to the trial court’s legal conclusions. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993). Defendant concedes that he did not pay rent on t h e2 Dr. Oni asser ts in his brief that the judgment should have been against the corporation rather than agains t him individ

ually , but then s e ems to conce de at time s that he isthe prope r defen dant. There was no pr

oof at tri al reg arding

the statuso f the corp oration, or that the corporation was the proper party to be sued on

these obli ga tions, and with the exception of the lease agreement purporting to be sig ned in corporate capacity , these were all clearly individual agreements made by Dr. Oni.

3 Plaintiff

argues in its brief that

an oral lease agree

ment existed prior to the written lease, butthere was no evidence of this introduced at trial. The record indicates that persons not called by plaintiff as witnes ses were

involved i n the tra

nsaction with defe

ndant. -3- office space he occupied until April of 1998. However, he claims he was neve r billed for

the rent until after the expiration of the Physician’s Services Ag reement, which expired at theend of Au gust, 1997. A witness for plaintiff claimed that defendant began being

billed for rent in June of 1997, and that he owed rent from June of 1997 to April of 1998

. An other witness said that the lease was submitted t

o defendant in June of 1997, and that is the date reflected on the leas e, but tha

t it really began in January

of 1997. D efenda

nt insists th at he only

owed re nt from Se

ptember 1997 to March of 1998. 2 The lease do cument r eflects a begi nning date of June 1, 1997, though it was not executed until August. The addendum to the lease states that it was made a part of the lease, and that the lease wa s dated Jan

uary 1, 1997, which conf

licts with t

he date o n the orig

inal d ocument

. Plaint iff is seeking to enforce this lease and dama ges for its breach. Thus, it bears the bur den o f proving the terms of the contract and that those terms were br eached. John H. M

oore & Sons v. Adams , 324 S.W.2d 499 (Tenn. Ct. App. 1959). 3

From an examination of the lease do cument, i ncluding its adden dum, it is clear that the document is ambiguous regarding the start of the l ease term. This document was prepared by plaintiff, and where a document is ambiguous, it is construed most strongly against the party

who drafted the instrument. Hanover Ins. Co. v. Haney , 425 S.W.2d 590, 592 (Tenn. 1968). Plaintiff’s representatives claim that the earliest that defendant would have been billed f or rent would have been June of 1997, and there was no proof that defendant wa s billed for rent back to the alleged starting date of January. Moreove

r, a witness testified that

the space was not completed until June, and the original Complaint filed by plaintiff only sought rent from June forward, although it later amended to seek rent from September 1996. Defendant testified tha t he w as in the space from September 1996 on, but was never billed for rent until the Phy sician’s Services Agreement terminated. Plaintiff had the burde

n of proving the te

rms of the

contract and that

the services w ere pro vided. John H. Moore v. Adams , 324 S.W.2d 499 (Tenn. Ct. App. 1959).

Based on testimony which the

Court properly allowe d to explain the ambiguities in the agreement, the rental pay ments were intended from June 1997. Plaintiff failed to show there was any agree ment to pa

y r ent befo re that ti me. I

n fact, t he lease was not actually executed until Aug ust. Ac co rd in gl y, we hold that the Judgment for the back rent should be reduced, and u pon remand, a-4-

Judgment should be entered for the months of the rental beg inning in June of 1997.

Defendant

did not dispute that he owed Telecom expenses, but claims that

the costs for June, July, and August 1997 should not have been included be cause this was during the termof the Physician’s Services Agreement. The ag reement, however, does not provide that such services would be provided

free of charg e. Defe

ndant did n ot dispute

that these

charges were incur

red, and a witness for plaintiff explained that no charges were incurred before June, and that this is why the billing started a

t that time. We find tha

t the Judgm

ent for th e Telec om charg es in

the amoun t of $2,259.55.00 was proven and is affirmed.

As to the tele

phone tri age a

greem ent, the a greem ent provi des that it can be terminated by the subscriber on ten day s’ notice, and defendant claims that such notice of terminat ion was se

nt. Defendant

offered no proof that the termination notice was received, however, and did not dispute testimonyregar

ding his u se of the service. The undisputed evidence shows that the termination letter was not rece

ived, and the servic es continue d to be provided through May 3, of 1998. Defendant denied that he r

eceive d the nume

rous lette rs and bil ls t hat wer e sent, and claimed that he had subscribed to anothe

r answe ring se rvice, b ut never

dis puted th at he continued to receive the tele phone triage services. The Court found that this claim was established by “overwhelming proof”. The evidence does not preponderate against this finding, and the T rial Court obviously credited the testimonyof plaintiff’s representative with rega rd to these services being provided , and de fendant didnot dispute that he received them. We affirm the Judgment fo r $1,30 0.00 for this service, as found by the Trial Court. Te nn. R. App. P. 13(d). Plaintiff was awa

rded att orney ’s fees fr

om defendant based on the amount of re co ve ry, but, as we have noted, the Court’s judgmen t of rent is reduc ed. Since we substa

ntially reduced the amount of recovery , the award of attorney ’s fees is reduced to $4,073.00.

Fina ll y, defendant argues that his counter- claim against plaintiff should have be e n sustained, but the Trial Court found defendant failed to establish that his damage s were p

roximately caused by plaintiff, and the evidence does not preponderate a gainst this finding. Tenn. R. A pp. P. 13(d). We

affirm t he denia l of this co

unter-c laim. The Judgment of

the Trial Court is affirmed, as modified. Upon remand, the amount of back rent awarded will be reduc ed by five months’ re nt at $1,866.00 per month. The cost of the appeal is assessed one-half to Erlange r Medical Center a nd one-h alf to Ade Oni

.

_________________________ H ERSCHEL P ICKENS F RANKS , J.