Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Systems, Inc.
884 S.W.2d 458
Tenn. Ct. App.
1994
Check Treatment

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Deer’s policy. uninsured motorist appellant. are

Affirmed. Costs assessed to FARMER, JJ., concur.

.CRAWFORD

COOKEVILLE GYNECOLOGY OBSTETRICS,

SOUTHEASTERN DATA

SYSTEMS, INC. Tennessee, Appeals

Court of Section,

Middle at Nashville. 1994. Rehearing May

On Petition for Appeal

Permission to Denied

Supreme Aug. Harb, Jr., Cornelius, J. M.

Albert James Carson, Knoxville, Hodges, Doughty & appellant. Bennett, Goolsby,'

Rankin B. Bennett & appellee. *2 systеm implementa- LEWIS, phase your for each of Judge. in- hardware encompassing tion OPINION training on the Med- but' also the stallation Gynecology & Plaintiff Cookeville Obstet- Billing System. this installation ical For P.C.), rics, (Cookeville, a purchased P.C. your practice and success both to be a system from computer defendant Southeast Systems com- Data must be Sоutheastern (SDS). Cookeville, Systems, em Data Inc. If Data mitted to this end. guaran- contends it had a “satisfaction P.C. objectives to these Systems, Inc. fails meet teed, money back” contract with SDS. SDS documents, then as outlined our sales Cookeville, guarantee that of P.C. insists price your purchase we will refund Cookeville, a was that P.C. would be offered Rеmember, key full. to the success computer system refund if im- relationship this is the schedule for of perform proposals as stated of SDS open of plementation and an line communi- Implementation complet- after the Plan was implementation schedule cation. Once the ed. met, longer no has is been Chancellor, trial, follоwing a bench effect. October, agreement found the letter long looking lasting I am to a forward “vague ambiguous” and allowed if I relationship. Please let me know or testimony vary explain the 9 any my be further staff can of services. That agreement. October 1990 letter Sincerely, is as follows: Pat Sedlacek Shaw, James W. M.D. President P.C. 187 West Second Strеet Shaw, corporate secretary Pat

Cookeville, TN 38501 Cookeville, P.C. and the of Dr. James wife Shaw, Cookeville,P.C., owner of attended Dr. Dear Shaw: computer meeting first saw a where she you I writing am this letter to confirm our system manufactured VERSYSS. understanding you that if for reason displayed system was and demonstrated longer yourself wish no avail comрany from Nashville. Ms. Shaw asked support Sys- offered Southeastern Data employees if do one of the that would Inc., tems, provide we should fail to and other areas of concern Global OB-GYN necessary support your group level of that billing. regarding insurance and electronic requires Systems, or Southeastern Data Ms. was advised that Shaw longer provide Inc. no should able things do that desired. fact she support required, the level of then the upon Based her conversation and the demon- programs you Source Code for the that stration, left her name and asked that she have licensed from VERSYSS purchase of a call her someone your is provided group. shall be It computer system. VERSYSS understood, however, your further that group or to resell ‍‌‌‌‌‌‌​​‌‌​‌‌​​​​‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌‌​​‌​‌​‌‌​​​‍thereafter, Shortly Rogers, em- Scott an market manner same software. SDS, of defendant contacted Ms. ployee solely be provided The Source Code would up meeting to discuss her Shaw set Shaw, support for the M.D. James meeting practice needs. The was hеld Systems, guaran- April practice Rogers analysis completed. Billing means tees the VERSYSS Medical terminals, many printers, System specified will in our found out how desired, types equipment proposal. is further understood that practice type Systems, guar- Inc. will needs terms for, looking implement- your antee that will be software modules patients timely prаctice and number of ed on a basis as is volumes ar- in- A demonstration was our Plan. This had seen. ranged Friday, 20 at which program that will stallation define dates fact, Rogers time Mr. demonstrated the ter functions was inaccurate. Shaw to, computer, including, but not limited ferred the 9 October 1990 letter as the OB-GYN, agreement of parties regarding Global the Mends Practice Man- agement System, including by deposition antee. patient billing, Ms. Shaw testified *3 at that appointments logging, and recall medical trial the 9 October 1990 letter accu- rec- ords, rately reflected the substance of and electronic claims submission. A the conver- proposal given Sep- sation Mr. was to Ms. Shaw on 26 she with Sedlacеk 18 outlining 1990 price 1990 the and tember the Source Code and abilities the ability system. system. software and the Ms. her to return the Shaw did not purchase proposal. under this Nothing gives 1990 the 9 October letter Rogers

Mr. called later met Ms. plaintiff money an unconditional back September proposal Shaw. Another dated 7 opinion antee. We of the аre that Ms. given 1990 was proposal her. This re- testimony interprets in which she Shaw’s her respect mained the same to the Mends handwritten on the of a letter *4 for that of the Seiko. printer to substitute to On 31 December 1990 Shaw wrote by They rejected plaintiff. all of requesting a refund the purchase ‍‌‌‌‌‌‌​​‌‌​‌‌​​​​‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌‌​​‌​‌​‌‌​​​‍price. of cancellation Because the Industries, Inc., v. Samples Guerdon system on December 1990 before the (Tenn.App.1986), this No. 1986 WL 10922 plaintiff to fully implemented, was never able court stated: computer would do determine whether the case, However, plaintiff in the has reschedules, shows, cancellations, ac- no of conduct contem- frustrated the course practice billing, counts advanced receivable by the Commercial Code plated Uniform modules, logging, appointment recall buyers, has in that he for reasonable GYN, writing letter modular electric Global to allow the defendant cure the fused to in billing, specified all of which was the SDS nonconformity complained of. Not at proposal. The evidence trial demonstrat- deny an plaintiff the defendants did the system perform ed the all fact nonconformity, to the but opportunity cure specified propos- the functions the SDS of re- discussion he even foreclosed al. complained the of mobile home placing record The evidence the before us dem- plaintiff nothing new one. with plaintiff to onstrates that was not entitled by allowing the defendant to cure to lose cancel the contract and a refund on plaintiff nonconformity. the al- the Had 1990. The December to cure lowed the defendant to forming as failed, nonconformity and those efforts obligations SDS was under accep- his then could still have revoked he Implеmentation Plan. however, plaintiff, would not tance. The receiving After Ms. Shaw’s letter of 31 nonconformity. allow cure of a January president on December Id. at *3. Shaw, immediately of to Ms. ad- wrote Guerdon, Cookeville, P.C., plaintiff in like dressing problems each of the Ms. Shaw had by defen- any opportunity has foreclosed pur- Mr. offered to delinеated. Sedlaeek Had to cure nonconformities. dant printer chase another label cost Cookeville, to cure the P.C. allowed SDS plaintiff steps and take whatever were neces- failed, then nonconformity and those efforts original sary complete installation for Cookeville, their P.C. could still have revoked Plan, the dаte stated acceptance. allowing an which had additional two weeks shut down. been lost while that the Chan We are on at least went to Cookeville Sedlaeek agree finding that the letter cellor erred following his an at- two occasions letter “vague and 1990 was ment 9 October On 23 Janu- tempt to meet Ms. Shaw. allowing oral ambiguous” аnd therefore again asking ary wrote Mr. Sedlaeek vary explain testimony to to come so that that SDS be allowed agreement. completion of the installation move towards rights parties must be system implementation by put into their what At that time he attached could be achieved. Champion v. agreement. Mills-Morris Co. procedures idеntical to new which were OB (6th Cir.1925). Spark Plug 7 F.2d right Defendant adjustment asserted its duty of the courts enforce prior expiration con- cure time according plain tracts to their terms. completion. Bob for by contract This was denied Motors, Cookeville, Regal Chrysler- Pearsall P.C. sought Defendant to extend (Tenn. Inc., Plymouth, S.W.2d the time which could make a 1975). decision once the to cure had been completed. rejected Cookeville, by This was interpretation The standard of agree- an P.C. P.C. refused to allow SDS except produces ment ambigu- where an cure under the contract result, ous or is excluded rule of law agreed which original sales establishing meaning, a definite is the and under the lеtter of meaning that attached to the October Tennessee Code Annotat- [agreement] by reasonably intelligent §ed provides: 47-2-609 “A contract sale person acquainted operative all the imposes obligation each party that the usages knowing all the circumstances expectation perfor- other’s receiving due prior contemporaneous to and with the impaired.” mance will not be Tenn.Code making of [agreement], than other (1992). Cookeville, § Ann. 47-2-609 parties statements what *5 duty allowing its breached SDS to it intended to mean. complete its any contract and cure noncon- Co., Earle v. Tenn.App. Illinois Cent. R.R. 25 formity. 660, 15, denied, 167 S.W.2d cert. 317 U.S. 680, (1942). 161, 63 S.Ct. 87 L.Ed. 546 court in determining The trial wаs in error ‍‌‌‌‌‌‌​​‌‌​‌‌​​​​‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌‌​​‌​‌​‌‌​​​‍any that defendant was not entitled to cure

An ambiguity does in not arise a con- in deficiency performance its before merely parties may tract because the differ a entitled refund. interpretations as provi- of its certain Oman sions. Constr. Co. v. Tennessee Val language The of the 9 October 1990 375, ley Authority, F.Supp. 486 382 antee clеar. Plaintiff is entitled to a (M.D.Tenn.1979). only full refund not did ambiguous “A contract is when it is of proposals form as once it is may fairly and meaning uncertain be under- fully implemented in accordance stood ways more than A one. strained Implementation Plan. The shows evidence may placed on the lan- construction performing according defendаnt guage used to ambiguity find where none Plan, schedule under and Clemmer, Farmers-Peoples exists.” v. Bank plaintiff was never able to determine whether (Tenn.1975). 801, 519 S.W.2d 805 perform specified as because terminated the parties Neither the nor the courts can agreement fully oper- before the an ambiguity create where none exists in a perfor- ational. The time for defendant’s contract. Edwards Travelers Indem. expired, mance and had a had (Tenn. 435, 615, 201 Tenn. 300 S.W.2d 617-18 any perfor- to cure deficiencies its 1957). including February up mance 28 any meaning for search of an in trial judgment court that the interpreted its strument terms are to be plaintiff is entitled to is re- refund legal by their effect determined consideration versed, cause is remanded to the Range as Hill & whole. for entry dismissing court of an order Music, Inc., Songs, Inc. v. Rose Fred plaintiff’s allowing suit and SDS a reasonable (6th Cir.1978). F.2d “Contracts time within which to cure deficiencies. entirety.” must be read in their Paul v. America, Insurance Co. North 675 S.W.2d appeal plaintiff, Costs on are taxed to (Tenn.App.1984). Gynecology Cookeville plaintiffs The record shows that the acceptance premature. KOCH, JJ.,

revocation of CANTRELL and concur. Chancery warranty. for Putnam ORDER ON PETITION $31,- Gynecology County Cookeville REHEARING awarded FOR Data’s 139.37 dismissed May it attorney’s because for fees counterclaim Defendant/appellant, Gy- already that Cookeville Systems, Inc. has filed its Petition to Rehear contract. ‍‌‌‌‌‌‌​​‌‌​‌‌​​​​‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌‌​​‌​‌​‌‌​​​‍necology had not breached the opinion judgment on this court’s entered appealed requesting Southeastern Data April ground 1994 on the that the court recovery judgment of its versal of the did not address the “defendant’s eounter- attorney’s fees. attorney’s complaint sought there- fees judgment favor Wе reversed

under.” our Systems mention of did not but made no While Southeastern fees, attorney’s attorney’s request for its fees. South- Data’s present issue oversight to our eastern Data called this did in the conclusion of their brief “re- rehearing. timely petition attention for trial court quest that be reversed panel of this have chosen The other members remedy sought, the revocation was the since rehearing deny petition matter dismissed and that SDS be award- grounds technical that Southeastern Data attorney’s sought its as its counter- ed fees specific dealing attor- not include a issue provided complaint for in the con- ney’s though request- even fees in its brief tract.” the conclusion to brief. ed relief attorney’s may be recov While majority’s I not share reluctance do prevailing party attorney’s ered when attorney’s consider the fees matter. We provided fees are statute or con trial court erred have concluded that *6 Goings v. Aetna parties, tract between the Data when determined Casualty Surety & 491 S.W.2d 847 cоncerning the had breached its warranties (Tenn.App.1972), present defendant did not Gyne- computer system it sold Cookeville attorney’s the issue of its entitlement to cology. I would the case to the remand argument. issues or Tenn. concerning proceedings for further court 13(b) R.App.P. provides part that “review for attor- Data’s counterclaim gеnerally ‍‌‌‌‌‌‌​​‌‌​‌‌​​​​‌‌‌‌‌​‌​‌‌‌​​​​‌​​‌‌​​‌​‌​‌‌​​​‍will extend to those issues ney’s we fees since now presented for review.” the issue of Since by canceling Gynecology defaulted Cookeville fees, brief, attorney’s to in the while referred prematurely. the contract issue, presented was not as an we decline to consider that issue. Rehearing that the for results Petition defendant/appellant

denied at the cost of Systems, Inc. LOEFFLER, Samuel L. Lewis Plaintiff- Lawrence /s/ LEWIS, Appellant, SAMUEL L.

Judge Ben H. Cantrell /s/ al., KJELLGREN, et Fred M. CANTRELL, BEN H. Defendants-Appellees. Judge Tennessee, Appeals Court Section, Middle at Nashville. J., KOCH, dissents. May KOCH, Judge, dissenting. Appeal Denied Permission to Supreme Sept.

(“Cookeville Gynecology”) sued Southeastern Data”) (“Southeastern Systems, negligent misrepresentations fraudulent and breach contract and breach notes bottom Software; however, II specifi- the 1990, hardware September way dated 18 can changed. cations Plaintiff buy were did not interpreted money as an unconditional back set rather, the hardware forth but guarantee, upon but as a сondition buy did later repre- software that was performance. September proposal 7 sented 1990 We are of the that the 9 October previous proposal. plain ambiguous. 1990 is letter Defendant was to break down asked the Nothing in this letter makes an unconditional price plaintiff. This was done and a money guarantee plaintiff back was presented letter was to Ms. Shaw on 18 completely satisfied. The terms of the letter September next scheduled plaintiff demonstrate that was entitled to a her presented at office. This was in a letter computer system if the refund did not meeting at Ms. Shaw’s office. proposal form as once it was fully implemented. September mеeting At the 18 Ms. Shaw given options concerning pur- was three request a Plaintiff was not entitled to One, computer system. chase she proof fund on December 1990 since the pay thirty percent up could front and the clearly demonstrated that the Two, upon plaintiff balance installation. system specified in as pay up could the entire amount front and proposal and also demonstrated defen- percent, receive cash discount five obligations dant current in its under third, plaintiff system. could Plain- lease Implementation Plan as of 31 December up pay tiff chose to the full amount front to 1990. get the cash discount. plaintiff Until made no November By choosing paying discount and сash complaints of dissatisfaction with the installa- complete, in full before installation was Ms. system training. tion of or the Pat Shaw leverage. Shaw felt that she would lose all try of 19 did not to rescind the contracts. As inquired leverage regarding about She her had not December still decided performance and assurance that the Pat testified the оn-site rescind. Sedlacek promised. operate installed and as as of training 19 December was abso- lutely according Ms. to schedule. Shaw In order to confirm the discussions be- troubleshooting” note “minus time on the defendant, tween herself and Ms. Shaw re- record of 26 November quested her a Sedlacek write letter covering what had discussed. Mr. Sed- As 19of December institution of the complied lacek with this and sent her going according Imple- to the of October been mentation Plan and rescission had not Specific sought. When Ms. Shaw received the 9 instructions were written October up deleting charges, 1990 letter did not communicate with Shaw she year going advise that the let- to wait until first defendant and Shields, em- increasing chang- steps which Vickie the basic because SDS, up on 17 Decem- ing had written ployee codes. Ms. Shaw refused allow SDS ber Through 1990 Ms. Shaw nev- 19 December performance problems with try and cure attempted er to cancel the contract because February system. In a letter meeting, up and SDS was to date a missed ‘no’ said stated that “we have 1991 Ms. Shaw training per Imple- with the on-site ways.” times and numerous numerous Following 19 December mentation Plan. Ms. Shaw on before the letter written repeated efforts made 31 December no communications were up- any deficiency including complete cure had between and defendant. purchase of another date