# FILED
October 1, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk GEORGE M. BOND, ) Rutherfo rd Count y Ci rcuit ) No. 37459 Plaintiff /Ap pellee )

) VS. ) Appeal No. ) 01A01- 9704-CV-00149 COM-THER , INC., ) ) Defendant/Appellant )

IN THE COU RT OF A PPEA LS OF TENN ESSEE MIDDLE SECTION AT N ASHVILLE

APPEA L FROM THE RUTHERFORD COUNTY C IRCUIT COURT

AT MURFREE SBORO, TEN NESSEE
HONORA BLE DON R . A SH, JUDGE Ryan A. Kur

tz Trabue, Sturdiv

ant & DeWitt 2500 Nashvi lle City

Center 511 Union Street Nashvil le, TN 37219-1738 and William P. Suriano 280 Shenstone Road Rivers ide, Illinoi s 60546 ATTORNEYS FOR DEFENDANT/APPELL ANT J. Ross Pepper 222 Second Avenue North Suite 360-M Nashvil le, TN 37201 ATTORNEY FOR

PLAINTIFF/APPELL EE

AF FIRMED A ND REMA NDED

WILLIAM H. INMAN, SENIO R JUDGE

CONCUR: HENRY F . TODD, PRESID ING JUDGE, MIDDLE SEC TION BEN H. CAN TRELL, JUDGE2

GEORGE M. BOND, ) Rutherfo rd Count y Ci rcuit ) No. 37459 Plaintiff /Ap pellee )

) VS. ) Appeal No. ) 01A01- 9704-CV-00149 COM-THER , INC., ) ) Defendant/Appellant )

O P I N I O N The plaintiff and the defendant ent ered into a “C ontract Serv ices Agreement” in 1994 which provided, as pertinent to this case, tha t either party might terminate it at any time by

givi ng 30 days

notice to the ot her. On May 19, 1995, the defendant informed the plainti ff by letter that “ . . . we are disconti nuing our relationship w ith you for Ph ysical Therapy serv ices, effectiv e May 19, 199 5. Normal proced ure warr ants a 30 day notice, how ever, in light of numerous complaint s regardi ng your service s, we feel i t is necessar y to cease serv ices immediatel y.” This suit was filed in the G eneral Sessi ons Court to r ecover compens ation for 30 days. The pl aintiff insists that because he was entitled to 30 days noti ce of termination of the contract, he is entitled to recover compens ation during this period in ac cord ance with hi s ear nings histo ry. The case was heard de novo in the Circuit Court with judg ment being rendered for the pl aintiff in accordan ce with hi s evidence that he woul d have earned $3,240.00 during the 30 day noti ce period. This is a non-jury case and our review is de novo on the record ac companied by a presumpti on of the correctn ess of the findings of fact of the trial court. T ENN . R. A PP . P., R ULE 13(d). The plaintiff testified that he inde pendently contracted with the def endant in 1980 to provi de hands-on physical thera py to patient s referred to hi m by the defendant, for whic h he would be paid $45.00 per v isit. When asked how many visits he made each wee k, he replied : “It vari ed. I woul d say any where from -really

an averag e of say 18 at3 the time that they

terminated the c ontract, but up t o around 40 vi sits per week.” The cont ract was te rmin ated on Ma y 19, 1 995 witho ut no tice , as we have seen. He testi fied that for the month i mmediately preceding May 19, 1995 he averaged 18 visit s per week , and for the peri od from May 21 t hrough June 17, 1995 he would have made 72 visi ts had the defendant not t erminated the cont ract. The pleading by defend ant was ore tenus, but it deve loped during the trial t hat its defense to the c laim was the alleged po or performance of the pl aintiff in renderi ng therapy to patients referred to the defendant by Century Health Serv ices [hereafter “Century ”]. An official of thedefendant testified that Century di rected his c ompany not to assig n the plaintiff any Century patients. Sinc e Century furnished all of the defendant’s patients, this action would have left the plainti ff with nothing to do; hence, the early

termination. As the trial judge obser ved, the contr

act, prepared by

the defendant, is si lent on the precise issue. He s tated “You [the defenda nt] sent him a letter cold , which v iolated the cont ract. Any breach, ev en if he di d all those things [i.e., negl igently

treated patients] any breach is notaddressed in this contract. It probab ly should have been. I think if you are g oing to prov ide medical ser vices they

ought to be high q uality and people shouldn’t be abused, but that is not in there . . .” W hether the plaintiff breached the contract is not relevant, given the postu re of the case, and the pl aintiff was cl early enti tled to 30 days notice. H ad he been given such n otice, t he def endan t might ha ve, with impu nity, simp ly refuse d to assign patients to him; but in direct, ad mitted defiance of the contract the de fendant chose not to give the required notice. Consequently the courts must enf orce the contract as writ ten. Scandlyn v. M

cDill C olumbus C

orp., 895 S.W .2d 342 (Tenn. App . 1994); Coble System

s Inc. v. Gi

fford Co., 627 S.W .2d 359 (Tenn. App . 1981). The argument of the appel lant that the pl aintiff cannot recover because no patients could have been assi gned to him in view of Century’s directive is unavai ling under the contra ct which makes no reference to Century , and in any event does not provide that the defendant may di sregard th e notice req uirement. The trial judge chose to accredit the te stimony of the plaintif f that he could4

have made 72 v isits duri ng the notice period. The iss ue largely turns upon the credibili ty of the w itnesses, a det ermination w ithin the prov ince of the trial judge. Walls v. Magnol

ia Truck Li

nes, 622 S.W.2d 526 (Tenn. 1981). We cannot find that the evidence preponderates ag ainst the judg ment. The appellee wa s awarded a limited attor ney fee of $371.08. He complains of the minimal nature of this fee and present s it for rev iew, ins isting that he is entitl ed to an additur inc luding a fee for s ervices in this Cou rt. The contractual pr

ovisions respecting attorney fees is somewhat unusual. It provides that the defendant agrees to indemnify and hold the plai ntiff harmless from all losses , expenses, fees, including attorney fees, costs and judg ments that may be asserted agai nst the plainti ff that result from the ac ts or omissi ons of the defendant. Given the l ack of evidenc e on the issue, we cannot find a n abuse of discret ion on the part of the trial judge in limiting the amou nt of the award of atto rney fees. In light of the obvious intent of the parties however, we find that the plaintiff is entitled to hi s reasonable at torney fees for t his appeal, and t he case is remanded for this purpose. Affirmed, with costs taxed t o the appellant.

___________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

______________________________________ Henry F. Todd, Presiding Judge, Mi ddle Section

______________________________________ Ben H. Ca ntrell, J udge