# FILED
August 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

WILLIAMSON COUNTY BROADCASTING ) COMPANY, INC., and WILLIAM B. ORM ES, ) ) Plaintiffs/Appellants, ) ) Appeal No. VS. ) 01-A-01-9709-CH-00480 ) INTERMEDIA PARTNERS, a California ) Davidson Chancery limited partnership; INTER MEDIA CAPITAL ) No. 92-2930-II MANAGEMENT; a general par tner of ) InterMedia Partners; LEO J . HINDERY, JR., ) Managing General Partn er and Chief ) Executive Officer of InterMedia Capital ) Management; ROBIN CABLE SY STEMS; ) ROBIN MEDIA GROUP, IN C.; FIRST ) CABLEVISION, INC.; ROBIN CABLE ) SYSTEMS LIMITED PARTNERSHI P; ) TENNESSEE VALLEY CABLEVISION, ) ) Defendants/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N 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/Appell ants 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; REV ERSED IN PA RT;

AND REMANDED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. CAIN, J.- 2 - 

## O P I N I O N

In this s eco nd appeal involving a written agreement, w e are asked to review the chancellor’s fi ndings concerning the scope of the ag reement, the proof of damages, and whether the agreement should be specifically performed. W e reverse the order of specific performance but af firm in all other respects.

I.
In 1979, William Ormes, the owner of radio stati on WAGG in Franklin, signed a letter agreement with Matrix Enterpris es, Inc. whereby Mr. Ormes was to be compensated f or 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 follow ing paragraph: 6. If the cor por ation is successful in obtai ning the Franchise in the City of Frankli n, Tennessee, you, William R. Ormes, or your designee (subject to the provis io ns contained herein), will receive twenty (20) percent of the common or preferred stock of the corporation to which the Franchise is issued, s

aid stock tobe free and clear of all liens, charge s and other encumbrances, except as otherwise provided herein. In addition, you are to be the exclusive director o f l ocal programming, both audi o and video, and the exclusive sal es agent for the sale of advertisingand broadcas ting time on the local channels.

The agreement did not contain a fixed term, and, in the prio r action, the chancellor

granted sum m ary judgment to I ntermedia (Matrix’s successor), holding that the agreement was terminable at will. We reversed and remanded for a trial on “all issues.”

On remand, the chan cellor he ld that pa ragraph 6 of the ag reement gave Mr. Ormes t he exclusive rig ht to place advertising on the local originati on channel- 3 -

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 originati on channels or whether it is local advertising for inser

t 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 C hrysler-Plymouth,

Inc. , 521 S.W.2d 578 (Tenn. 1975). The court should cons i der the entire contract, Cocke Co. Bd. of Highway Commissioners

v Newport Utilitie s Bd. , 690 S.W.2d 231 (Tenn. 1985), and the “situation involving the par ties, 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 inser

ts were not

in the contemplation of the parties . Mr. Ormes testified t hat he was unaware in 1979 of any technology that woul d allow local adver tising inserts. Therefore, we think the cir cumstances existing at the time th e parties executed the agreement supports the chanc ellor’s interpretatio n. See Hamblen Co. v. City of M

orristown, 656 S.W.2d 331 (Te nn. 1983).

Mr. Ormes argues, however, that in readingthe agreement as a whole it is clear that the parties divided up the

revenues along the li nes of their interests: he- 4 -

was interested in selling advertising and Matrix was interested in the revenues to be derived from selling s ubscriptions to the cable s ervice.

We cannot agree. The only reference in the agreement to advertis ing is paragraph 6. The other parts of the agreement make it clear that th e franchise was to belong to the company to be formed by M atrix. Matrix was to bea r all costs and to make all decisions relati ve to the type of

organization they were creating, its financial structure, and its method of operation. Mr. Ormes w as to get twenty per

cent of the company

and the right to be the exclusive sales agent for advertis i ng and broadcasting time on the local channels

Mr

. O rmes also argues that he i n fact sold advertising on the satellite channels for several years and that this “practical c onstructi on” of the agreement supports his version of it. The con struction placedon an agreement by the parties is
a valuable construction tool where the agreement is ambiguous. Garner v. American HomeAssurance 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 w e thought the term “local” was ambiguous, the proof in the record does not show when the oth er parties became aware that Mr. Ormes w as selling adverti sing for insertion on the s atellite feed.
Finally, Mr. Ormes a rgues tha t we decided in theformer appeal that he had the exclusive right to sell local advertising, including the satellite inserts. The only issue decided by the trial c ourt on the former appeal was tha t the agreem ent 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 ret rial must include an interpretati on of Mr. Ormes’ rights under the agreement.- 5 - b. The Term

In our former opinion we said (i n deciding that the agreement wasnot terminable at will):

[I]twas the intent of the parties that Mr. Ormes would receive vested property ri ghts and that the duration of the agreemen t woul d be coextensive with the length of the cable system franchise used by Matrix and its successors.

That l an guage would ordinarily be conclusive on the question of the term covered by the agreement. But in remanding the case for trial on “all issues,” w

e think the question was left open.

After hearing the proof, the trial judge hel d that, i ndeed, Mr. Ormes’ rightsunder the agreem ent would la st as long as the orig inal franchisee or its
successors held the franchise. We are satisf ied that the holding was correct. There is nothing in the proof developed on remand to suggest that we erred i n 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 th e rights given M r. Ormes by the agreement
were personal to him and could not be assigned, transferred , or inherited. We think the court erred in draw ing this conclusion.

Contract rights ordinarily survive the death of one of the parties unless the cont ract is one of a personal natur e. 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 i ntent that the contract rig hts will survi ve the death of one of the parties, and it is a strong indicati on that the contract rights are assignable. See- 6 -

Teague v. Sow der , 121 Tenn. 132 (Tenn. 1908). But even in the abse nce of such languag e, contract rights are generally assignable unless the assignment would materiallyaffect the obligor’s rights or burdens. Petry v. Cosmopolit an Spa Intern., Inc. , 641 S.W.2d 202 ( T enn. App. 1982)(applying the Restatement (Second) of Contracts

§ 317(2) (1981).

There is nothing in the agreement r estricting its

assignment, and we do not think it involves

person al rights th at fall outside the general r ules of assignment or survivab ility.

III. Specific Performance
Spec ific performance is an equitable r emedy. Gibson v. Gilla , 32 1 S.W.2d 855 (Ten n. App. 1 959). It i s ava ilable only when the remedy at law is inadequate. GRW Enterprises, Inc. v. Davis , 797 S.W.2 d 606 (Tenn. App. 1990). When the injured party can be fully and adequately compen sated with damages, the courts will not grant specific performance. Shup trine v. Quinn , 597 S.W.2d 728 (Tenn. 19179). The inability to prove one’s damages may make the damages r emedy inadequate. Eastern Rolling Mill Co. v. Michlovitz

, 157 Md. 51, 145A. 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 generall y an adequate remedy. Sprunt v. Bd. of Trustees of University

of Tennessee , 443 S.W.2d 464 (Tenn. 1969). It is true that the inabil ity to prove one’s damages m ay make the dam age re medy inadequate. See Eastern Rolling Mills Co. v. Mic

hlovitz , 157 Md. 51, 145 A. 378 (Md. App. 1929). In that case- 7 -

the seller agreed to

furnish all of its output of tw o kinds of scrap metal for a period of five years. The price was to be adjust ed each quarter according to the prices quoted in a trade journal. Under thos e circumstances, the damages suffered by theplainti ff 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 da mages.

IV.
Finally, Mr. Ormes insists tha t his proof of damages that had already accrued was adequate and that the burden shifted to the defendants to dispr ove the amount. We disagree. The p roo f offered at the hearing attempted to show the damages for the loss of all adverti sing -- on the lo cal channel as well as on the satellitefeed. Since the chance llo r found that Mr. Ormes was only entitled to sell advertisingfo r the local channel, the pro of was largely ir

relevant. The defendants cannot be required to refute pr oof that supports a theory rej ected by the trial judge.

Mr. Ormes did get

in to the record a late-filed offer of pro of attempting to segr ega te out the revenue attributabl e to the rights found by the chancellor. On appeal, however, he d oes not i nsist that he should be awar ded damages based on his offer of proof. Therefore there was not any competent evidence onwhich to base
an award o f dam ages up to the time of trial. Since we have reversed the specific performance judgment, we remand the cau se forfurther proceedings as to the damages that may be recovered for the loss of earnings from the d ate of th e trial forward.

The jud gment of the court below awarding Mr. Ormes specific performance of his contract is rev ersed. In all other respects th e judgment is affirmed and the cause is remanded for further pr oceedings in accordance w ith this opinion. Tax the co sts on app eal to the parties e qually.- 8 - ____________________________ BEN H. CANTRELL, JUDGE CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_____________________________ WILLIAM B. CAIN, JUDGE