FILED

August 12, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

WILLIAMSON COUNTY BROADCASTING )

COMPANY, INC., and WILLIAM B. ORMES, )

)

Plaintiffs/Appellants, )

) Appeal No.

VS. ) 01-A-01-9709-CH-00480

)

INTERMEDIA PARTNERS, a California ) Davidson Chancery

limited partnership; INTERMEDIA CAPITAL ) No. 92-2930-II

MANAGEMENT; a general partner of )

InterMedia Partners; LEO J. HINDERY, JR., )

Managing General Partner and Chief )

Executive Officer of InterMedia Capital )

Management; ROBIN CABLE SYSTEMS; )

ROBIN MEDIA GROUP, INC.; FIRST )

CABLEVISION, INC.; ROBIN CABLE )

SYSTEMS LIMITED PARTNERSHIP; )

TENNESSEE VALLEY CABLEVISION, )

)

Defendants/Appellees. )

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE CAROL L. MCCOY, CHANCELLOR

ALFRED H. KNIGHT

ALAN D. JOHNSON

215 Second Avenue, North

Nashville, Tennessee 37201

Attorneys for Plaintiffs/Appellants

STEPHEN K. RUSH

1209 16th Avenue South

Nashville, Tennessee 37212

Kathryn A. Stephenson

414 Union Street

Nashville, Tennessee 37219

Attorneys for Defendants/Appellees

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

CAIN, J.
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O P I N I O N

In this second appeal involving a written agreement, we are asked to

review the chancellor’s findings concerning the scope of the agreement, the proof of

damages, and whether the agreement should be specifically performed. We reverse

the order of specific performance but affirm in all other respects.

I.

In 1979, William Ormes, the owner of radio station WAGG in Franklin,

signed a letter agreement with Matrix Enterprises, Inc. whereby Mr. Ormes was to be

compensated for his efforts in helping Matrix secure a cable television franchise in

Franklin, Brentwood, and Williamson County. In addition to other inducements, the

agreement contained the following paragraph:

6. If the corporation is successful in obtaining the

Franchise in the City of Franklin, Tennessee, you, William

R. Ormes, or your designee (subject to the provisions

contained herein), will receive twenty (20) percent of the

common or preferred stock of the corporation to which the

Franchise is issued, said stock to be free and clear of all

liens, charges and other encumbrances, except as

otherwise provided herein. In addition, you are to be the

exclusive director of local programming, both audio and

video, and the exclusive sales agent for the sale of

advertising and broadcasting time on the local channels.

The agreement did not contain a fixed term, and, in the prior action, the

chancellor granted summary judgmentto Intermedia (Matrix’s successor), holding that

the agreement was terminable at will. We reversed and remanded for a trial on “all

issues.”

On remand, the chancellor held that paragraph 6 of the agreement gave

Mr. Ormes the exclusive right to place advertising on the local origination channel
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only; that these rights were unique and should be specifically enforced; and that Mr.

Ormes had not proved the damages he had already suffered.

II.

The Scope of the Agreement

a. All Local Advertising?

Mr. Ormes contends on appeal that he has the exclusive right to sell all

local advertising -- whether it is for the local origination channels or whether it is local

advertising for insert on programs picked up from the satellite.

The interpretation of an unambiguous written agreement is a question

of law for the court, Hamblen County v. City of Morristown, 656 S.W.2d 331 (Tenn.

1983), and the court’s overriding purpose is to ascertain the intention of the parties.

Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn. 1975).

The court should consider the entire contract, Cocke Co. Bd. of Highway

Commissioners v Newport Utilities Bd., 690 S.W.2d 231 (Tenn. 1985), and the

“situation involving the parties, the nature of the business in which they are engaged

and the subject matter to which the contract relates.” Stovall v. Dattel, 619 S.W.2d

125 at 127 (Tenn. App. 1981).

The parties agree that in 1979 when the agreement was signed,

advertising inserts were not in the contemplation of the parties. Mr. Ormes testified

that he was unaware in 1979 of any technology that would allow local advertising

inserts. Therefore, we think the circumstances existing at the time the parties

executed the agreement supports the chancellor’s interpretation. See Hamblen Co.

v. City of Morristown, 656 S.W.2d 331 (Tenn. 1983).

Mr. Ormes argues, however, that in reading the agreement as a whole

it is clear that the parties divided up the revenues along the lines of their interests: he
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was interested in selling advertising and Matrix was interested in the revenues to be

derived from selling subscriptions to the cable service.

We cannot agree. The only reference in the agreement to advertising

is paragraph 6. The other parts of the agreement make it clear that the franchise was

to belong to the company to be formed by Matrix. Matrix was to bear all costs and to

make all decisions relative to the type of organization they were creating, its financial

structure, and its method of operation. Mr. Ormes was to get twenty percent of the

company and the right to be the exclusive sales agent for advertising and

broadcasting time on the local channels

Mr. Ormes also argues that he in fact sold advertising on the satellite

channels for several years and that this “practical construction” of the agreement

supports his version of it. The construction placed on an agreement by the parties is

a valuable construction tool where the agreement is ambiguous. Garner v. American

Home Assurance Co., 460 S.W.2d 358 (Tenn. App. 1969). But the rule loses most

of its force where the parties are not aware of the true facts. Yowell v. Union Central

Life Ins. Co., 141 Tenn. 70 (1918). Even if we thought the term “local” was

ambiguous, the proof in the record does not show when the other parties became

aware that Mr. Ormes was selling advertising for insertion on the satellite feed.

Finally, Mr. Ormes argues that we decided in the former appeal that he

had the exclusive right to sell local advertising, including the satellite inserts. The only

issue decided by the trial court on the former appeal was that the agreement was

terminable at will. Since the jurisdiction of this court is appellate only, see Tenn. Code

Ann. § 16-4-108, that is the only issue that was before us. See Irvin v. Binkley, 577

S.W.2d 677 (Tenn. App. 1978). Therefore, when we remanded the case for a trial on

“all issues,” the retrial must include an interpretation of Mr. Ormes’ rights under the

agreement.
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b. The Term

In our former opinion we said (in deciding that the agreement was not

terminable at will):

[I]t was the intent of the parties that Mr. Ormes would

receive vested property rights and that the duration of the

agreement would be coextensive with the length of the

cable system franchise used by Matrix and its successors.

That language would ordinarily be conclusive on the question of the term

covered by the agreement. But in remanding the case for trial on “all issues,” we think

the question was left open.

After hearing the proof, the trial judge held that, indeed, Mr. Ormes’

rights under the agreement would last as long as the original franchisee or its

successors held the franchise. We are satisfied that the holding was correct. There

is nothing in the proof developed on remand to suggest that we erred in our original

view that Mr. Ormes would enjoy the fruits of his labor for the duration of the franchise

he helped secure.

c. Transferability

The trial judge held that the rights given Mr. Ormes by the agreement

were personal to him and could not be assigned, transferred, or inherited. We think

the court erred in drawing this conclusion.

Contract rights ordinarily survive the death of one of the parties unless

the contract is one of a personal nature. See 17 Am.Jur.2d Contracts § 547. In

addition, in this case the contract bound the parties, “their heirs and assigns.” Such

language surely indicates an intent that the contract rights will survive the death of one

of the parties, and it is a strong indication that the contract rights are assignable. See
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Teague v. Sowder, 121 Tenn. 132 (Tenn. 1908). But even in the absence of such

language, contract rights are generally assignable unless the assignment would

materially affect the obligor’s rights or burdens. Petry v. Cosmopolitan Spa Intern.,

Inc., 641 S.W.2d 202 (Tenn. App. 1982)(applying the Restatement (Second) of

Contracts § 317(2) (1981).

There is nothing in the agreement restricting its assignment, and we do

not think it involves personal rights that fall outside the general rules of assignment

or survivability.

III.

Specific Performance

Specific performance is an equitable remedy. Gibson v. Gilla, 321

S.W.2d 855 (Tenn. App. 1959). It is available only when the remedy at law is

inadequate. GRW Enterprises, Inc. v. Davis, 797 S.W.2d 606 (Tenn. App. 1990).

When the injured party can be fully and adequately compensated with damages, the

courts will not grant specific performance. Shuptrine v. Quinn, 597 S.W.2d 728

(Tenn. 19179). The inability to prove one’s damages may make the damages remedy

inadequate. Eastern Rolling Mill Co. v. Michlovitz, 157 Md. 51, 145 A. 378 (Md. App.

1929)(an agreement to sell all the defendant’s scrap metal for five years at a certain

fluctuating price.)

We think the plaintiff’s remedy at law in this case is adequate. There is

nothing in the record to suggest that Mr. Ormes cannot be made whole by an award

of damages. After all, this whole dispute is about money, and damages for the breach

of a personal contract is generally an adequate remedy. Sprunt v. Bd. of Trustees of

University of Tennessee, 443 S.W.2d 464 (Tenn. 1969). It is true that the inability to

prove one’s damages may make the damage remedy inadequate. See Eastern

Rolling Mills Co. v. Michlovitz, 157 Md. 51, 145 A. 378 (Md. App. 1929). In that case
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the seller agreed to furnish all of its output of two kinds of scrap metal for a period of

five years. The price was to be adjusted each quarter according to the prices quoted

in a trade journal. Under those circumstances, the damages suffered by the plaintiff

would be a pure guess. Therefore, the remedy was inadequate. The record in this

case does not suggest that kind of difficulty in proving the plaintiff’s damages.

IV.

Finally, Mr. Ormes insists that his proof of damages that had already

accrued was adequate and that the burden shifted to the defendants to disprove the

amount. We disagree. The proof offered at the hearing attempted to show the

damages for the loss of all advertising -- on the local channel as well as on the

satellite feed. Since the chancellor found that Mr. Ormes was only entitled to sell

advertising for the local channel, the proof was largely irrelevant. The defendants

cannot be required to refute proof that supports a theory rejected by the trial judge.

Mr. Ormes did get into the record a late-filed offer of proof attempting

to segregate out the revenue attributable to the rights found by the chancellor. On

appeal, however, he does not insist that he should be awarded damages based on

his offer of proof. Therefore there was not any competent evidence on which to base

an award of damages up to the time of trial. Since we have reversed the specific

performance judgment, we remand the cause for further proceedings as to the

damages that may be recovered for the loss of earnings from the date of the trial

forward.

The judgment of the court below awarding Mr. Ormes specific

performance of his contract is reversed. In all other respects the judgment is affirmed

and the cause is remanded for further proceedings in accordance with this opinion.

Tax the costs on appeal to the parties equally.
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____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_____________________________

WILLIAM B. CAIN, JUDGE