FILED

October 16, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

LIFETIME BOOKS, INC., )

Successor in Interest to )

FELL PUBLISHERS, INC., )

)

Plaintiff/Appellant, )

) Appeal No.

) 01-A-01-9708-CV-00399

VS. )

) Davidson Circuit

) No. 94C-4151

THOMAS NELSON PUBLISHERS, )

INC., )

)

Defendant/Appellee. )

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON GAYDEN, JUDGE

NORMAN GILLIS

NORMAN GILLIS & ASSOCIATES

713 18th Avenue South

Nashville, Tennessee 37203

Attorney for Plaintiff/Appellant

JAY S. BOWEN

TIMOTHY L. WARNOCK

SARAH W. ANDERSON

GREGORY S. REYNOLDS

OWEN RILEY WARNOCK & JACOBSON, PLC

1906 West End Avenue

Nashville, Tennessee 37203

Attorneys for Defendant/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

KOCH, J.

CAIN, J.

O P I N I O N
- 2 -

This appeal involves an interpretation of a “first refusal” provision in a

publishing contract. The Circuit Court of Davidson County dismissed an action

claiming that the publisher breached the provision. We affirm.

I.

In 1991, Thomas Nelson Publishers, Inc. agreed to publish a three

volume book set entitled The Og Mandino Gift Set. The agreement to publish was

actually between Thomas Nelson and Fell Publishers, Inc., which had a separate

publishing contract with Mandino. The agreement referred to Fell as the “Author” and

contained the following provision with respect to Remainders or Overstock:

The Publisher may dispose of books or sheets

which, in its discretion, it deems to be overstock or

remainders in any manner it may see fit and will have no

obligation to pay royalties on copies so disposed of at or

below Publisher’s production costs. Prior to disposal,

Author shall be granted the right of first refusal to

purchase such overstock or remainder upon those terms

and provisions offered to Publisher by any third party

which right Author shall exercise or waive within ten (10)

days receipt of Publisher’s written notification of the

proposed disposition date, or within twenty (20) days of

the date of mailing thereof, whichever shall occur first. In

the event Author fails to reply to Publisher’s offer within

such time, Author’s right of first refusal shall be deemed

waived. On all overstock and remainder copies of the

Work sold in excess of Publisher’s cost of production,

Author shall receive a royalty equal to ten percent (10%)

of the excess amount.

On March 6, 1992, Thomas Nelson wrote to Fell advising Fell that the

Mandino Gift Set would soon be out of print. The letter also contained the following

two paragraphs:

At the present time we have approximately 5,500 copies

in inventory which we would like to offer the author for

$2.00 per set plus the cost of shipping the books.

Please let me know by 17 April 1992 if there is any

interest in obtaining any of the remaining inventory.
- 3 -

On March 12, 1992, Mr. Lessne of Lifetime Books (the successor to Fell

Publishers) faxed a reply to the letter offering $1.50 for all the remaining books. Early

in April Thomas Nelson contacted Mr. Mandino and offered him the books at $2.00

per set. He ultimately accepted the offer, and about two days later Mr. Lessne

changed his mind and tried to exercise his company’s right to take the books.

(However, the only evidence of Lifetime’s attempt to exercise its right of first refusal

is an August 5, 1992 re-fax of its $1.50 offer.) When Thomas Nelson refused to

comply with Mr. Lessne’s request, this action followed.

II.

Lifetime insists that a literal reading of the publishing contract required

Thomas Nelson to find a buyer first and then to allow Lifetime to accept or reject the

books at the same price. Since the letter of March 6, 1992 did not specifically say that

Thomas Nelson had a buyer and that Lifetime had ten days to match it, Lifetime

argues that the letter was of no effect whatever.

While we agree that the March 6, 1992 letter did not strictly fit the

language of the publishing contract, we cannot agree that after receiving the letter

Lifetime could make a counter-offer and then wait for a second chance to purchase

the books for $2.00 per set. The uncontradicted proof in the record shows that the

March 6 letter was Thomas Nelson’s good faith attempt to comply with the contract.

If nothing else, the letter put Lifetime on notice that Thomas Nelson was going to sell

the books after the deadline set out in the letter. If Lifetime thought that they could

reject the offer and wait for another opening, they had a duty to put Thomas Nelson

on notice of that fact. Instead, they allowed Thomas Nelson to carry out their

announced plan. We are satisfied that under these circumstances they are estopped

to rely on the literal words of the contract.
- 4 -

Estoppel is based on an equitable principle that prohibits a party from

complaining when his own acts have induced another party to act to his detriment.

If the party’s action or inaction induces another party to change his position “for the

worse,” the first party causing the change of position will lose the rights of property or

contract that he might otherwise have enjoyed. Church of Christ v. McDonald, 171

S.W.2d 817 (Tenn. 1943). An estoppel may arise out of the silence of one under a

duty to speak. Lusk v. Consolidated Aluminum Corp., 655 S.W.2d 917, 920 (Tenn.

1983).

After inducing Thomas Nelson’s belief that they had no interest in

purchasing the remaining inventory at $2.00 per volume, with the certain knowledge

that Thomas Nelson intended to sell at that price, Lifetime cannot complain when

Thomas Nelson obligated itself to another buyer.

The judgment of the court below is affirmed and the cause is remanded

to the Circuit Court of Davidson County. Tax the costs on appeal to the appellant.

____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_____________________________

WILLIAM C. KOCH, JR., JUDGE

_____________________________

WILLIAM B. CAIN, JUDGE