Doris Tipton v. Elizabeth Quinn ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 6, 1999 Session
DORIS JEAN TIPTON v. ELIZABETH QUINN
Appeal from the Chancery Court for Sumner County
No. 95C-338 Tom Gray, Chancellor
No. M1998-00951-COA-R3-CV - Filed March 28, 2001
This is a breach of contract case involving agreements for Defendant to board and breed Plaintiff's
horses for a share of the resulting foals. Shortly after the parties entered into an oral agreement,
Defendant memorialized the agreement in a handwritten note. The agreement was subsequently
reduced to more detailed writings by Plaintiff, which both parties signed. Plaintiff later claimed that
Defendant breached portions of the agreement which required her to timely breed the mares, provide
insurance, adequately care for and maintain the horses, provide adequate veterinary care for the
horses, allow inspection of the horses, and halter-break foals. Defendant claimed that the agreement
prepared by Plaintiff did not reflect the parties' original oral contract. The trial court granted Plaintiff
partial summary judgment on the portion of her breach of contract claim alleging that Defendant
failed to obtain insurance. After a bench trial, the court awarded Plaintiff compensatory damages
for breach of contract as well as attorney's fees. Defendant appeals those decisions. We affirm as
modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed as Modified and Remanded
PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which William C. Koch, Jr., and
WILLIAM B. CAIN , JJ., joined.
Tony L. Maples, Nashville, Tennessee, for the appellant, Elizabeth Quinn.
C. Edward Scudder, Jr., Nashville, Tennessee, for the appellee, Doris Jean Tipton.
OPINION
This case involves a dispute between Ms. Tipton, the owner of several horses, and Ms.
Quinn, who agreed to board and breed five of Ms. Tipton's mares. The basic arrangement, subject
to individual exceptions, was that Ms. Quinn would receive the first foal from each mare in
consideration for the boarding and other services, and Ms. Tipton would get the second foal.
This arrangement began in June 1994 after Ms. Tipton and Ms. Quinn made an oral
agreement. The five mares were identified as Touch of Class, Khemoshen, Rozyczna (Roxy), Ansa
Pierkimsey (Ansa) and Lancers Shamia. Ms. Quinn took possession of Khemoshen, Roxy, and Ansa
on June 7, 1994. She received Touch of Class and her 1994 foal DDT Sassi Classi within the month
and Lancers Shamia in August 1994.
On June 17, 1994, Ms. Quinn drafted a handwritten document memorializing the oral
agreement. The notation listed the names of a number of horses, some of which do not appear to be
involved in this lawsuit. It then stated in pertinent part:
Raise the the [sic] filly and bring back when mare comes back. On both
above mares [referencing, in part, Touch of Class and her new foal]. 3 mares
– Khemoshen - Roxy -Ansa –Liz [Ms. Quinn] has first foal bred to my choice
stallion. Keep the mare a second year bred to stallion of D.J. Tipton’s choice
& halter break & worm and return at weaning time. All vet bills to be paid
by leasee [sic] [Ms. Quinn] of mares . . .
Both Ms. Quinn and Ms. Tipton signed this handwritten memorandum as well as having
it witnessed. Ms. Quinn testified that she understood that under this agreement she was to provide
transportation of the horses, along with their veterinary care, feed, shots and worming. The parties
agree that on all of the mares except Lancers Shamia, Ms. Quinn was to get the first foal and then
the mare would be bred again with Ms. Tipton getting the second foal.1
Ms. Quinn admitted that she and Ms. Tipton agreed that Ms. Tipton would provide a
future written contract and that "there would be a few other little things" in the agreement. She
testified that:
We just left it at that, because a few other little things -- those things weren't
anything to me, and they were not printed yet, and she was saying it was
going [to] take time. And I said send it when you get it ready.
The agreement Ms. Tipton subsequently drafted took the form of five "conditional lease
agreements." Each agreement related to one of the mares at issue. Ms. Tipton testified she sent Ms.
Quinn these contracts in October of 1994 and Ms. Quinn refused to sign them. They were sent again
and, at some point, the two entered into negotiations about the terms of these agreements. Ms. Quinn
specifically mentioned negotiation on such things as transporting mares to horse shows and the
1
It is not disputed that neither Ms. Qu inn nor Ms. Tipton were to receive any foal from the mare Lancers
Shamia, but Ms. Q uinn signed the contract becau se the horse was to be kept on her farm while it was being bred for a
third party. M s. Quinn was , however, re sponsible fo r the feed and maintenanc e of the horse while on her p roperty.
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extent of her ability to train the horses.2 Ms. Quinn testified that she had a problem with the
contracts "about putting in there things that really didn't have any bearing on what we were trying
to do," but she signed the contracts anyway in March or April, 1995.3 Ms. Tipton signed them on
May 1, 1995.
Each conditional lease agreement included a paragraph setting the term of the agreement,
which stated:
The terms of this agreement shall be for [each agreement has a number
inserted in this blank] years having begun by a verbal agreement on or
around June 1st, 19944 with possession of aforementioned horse going to
leasee(s) [sic] at that time with the understanding the written agreement
would be executed as soon as possible by both parties and being understood
and agreed that the actual agreement shall have commenced with the verbal
agreement . . .
Under all five of the agreements, Ms. Quinn was to provide, inter alia, adequate care and
maintenance of the mares, all transportation costs, mortality insurance, access to the premises for
inspection at any reasonable time or to remove the horse in the event Ms. Tipton felt their health or
safety was in jeopardy, written proof of any and all medical treatment, written proof of breeding
dates and a confirmation of pregnancy via sonogram within 90 days of conception. The agreements
also required Ms. Quinn to provide Ms. Tipton's foals with "basic skill knowledge (leading, standing
when tied-off, bathing, clipping, allowing feet to be picked up for cleaning or trim, ECT [sic])."
The agreements all provided for Ms. Tipton to receive "all reasonable attorney fees, filing
fees," and costs should any legal disputes arise; concluded with a provision stating that the contract
constituted the entire agreement between the parties; and contained a liquidated damage provision
in the event the horse(s) were returned to Ms. Tipton for any reason.
Ms. Tipton made her first visit to the Quinn property to inspect her mares on March 26,
1995. Ms. Tipton testified that during that visit, "I realized there was a problem, that Ms. Quinn was
not doing what she said." When asked to specify what she observed on that date, Ms. Tipton
2
The evidence s ho w s t ha t M s. Quinn read all of the contracts and was aware of their contents, including
handwritten amendments to the printed agreements. In addition, she had Ms. Tipton remove item s from other contracts
covering some stallions, issued and signed at the same time.
3
Although Ms. Quinn testified she executed on April 22, 1995, the contracts state they were made March 15,
1995.
4
The agreemen t for Touc h of Class co ntained this same language but stated that the verbal agreement took place
on June 5, 1994, rather than June 1.
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testified that the mares and stallions in Ms. Quinn's possession at that time5 were not being fed and
cared for properly and were "nothing but dried hide stretched over the bone" and she was dissatisfied
because Ms. Quinn purportedly told her earlier that two of the mares had not been bred, but after her
visit Ms. Tipton believed that they had been bred.
Ms. Tipton filed the underlying action on November 13, 1995, alleging breach of
contract, negligence, fraud, and conversion. The breach of contract claims were based on Ms.
Quinn's purported failure to provide the agreed to transportation, veterinary care, proper board, care
and maintenance, and notice of illness or trauma. The complaint also alleged that Ms. Quinn failed
to obtain insurance, to timely return the horses when they were demanded, or to allow their peaceful
retrieval by Ms. Tipton.6 As relief, Ms. Tipton sought the immediate return of her horses, including
their offspring, money damages on the tort and contract claims, and punitive damages.
Six months later, Ms. Tipton filed a motion for partial summary judgment on the contract
claim, seeking immediate return of her horses and the imposition of a constructive trust with respect
to any offspring born to the mares at issue. Ms. Tipton argued that the time for the return of the
horses Touch of Class and Lancers Shamia as specified in the contracts had expired and that Ms.
Quinn had further breached the contracts by failing to rebreed several of the mares and to allow
inspection of the premises. In her response to the motion, Ms. Quinn admitted that she had not
renewed the insurance policy "because prior to that date I have been sued and this matter is in court.
Since the Plaintiff . . . has breached the contract, then I was not under further obligation to continue
on due to said breach."
The trial court granted Ms. Tipton's motion for partial summary judgment on the ground
that Ms. Quinn failed to renew the equine insurance as required under the contract. The court
ordered Ms. Quinn to promptly return the five mares "together with all six of the foals born to any
of the . . . mares while in possession of the Defendant."
Ms. Quinn moved to amend that order, asserting that Ms. Tipton claimed the order gave
her title to all the foals when ownership of the foals remained at issue. Ms. Tipton responded that
as of a month after the court's judgment, Ms. Quinn had failed to return any of the horses and was
in breach, having admitted that she failed to maintain the insurance.
5
Other arrangem ents, part of the d ispute in the trial co urt but not on appeal, existed between the parties
regarding some stallions.
6
The claims of negligence, fraud and conversion were subsequently dismissed at the trial for lack of sufficient
evidence, and that decision is not contested here. The negligence claim was based on Ms. Quinn's purported failure to
provide the horses with adequa te food, shelte r, and veterina ry care which purporte dly led to the sp read of co mmunica ble
disease by returned ho rses amon g Ms. T ipton’s other h orses. The fraud claim a lleged that M s. Quinn attem pted to
fraudulently register a foal with the Arabian Horse Registry of America (AHRA) by forging Ms. Tipton's name on the
registration papers. The co nversion claim was based on Ms. Quinn's purp orted failure to timely return horses.
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The trial court issued an amended order granting partial summary judgment to Ms. Tipton
on her breach of contract claim alleging Ms. Quinn failed to provide the required insurance. The
court ordered the return of Ms. Tipton's five mares and their six foals born in Ms. Quinn's
possession. It also directed that the five mares and the two 1996 foals were to be titled solely in the
names of Ms. Tipton or her daughter, Kelli, and held that Ms. Quinn had no ownership interest in
those seven horses. On August 19, 1996, the five mares and their foals were turned over to Ms.
Tipton.
Almost two years later, due to several continuances at the parties’ request, a bench trial
was held on the remaining claims. After hearing the evidence, the trial court awarded Ms. Tipton
$28,932.70 in compensatory damages on the breach of contract claim, finding that Ms. Quinn failed
to breed the mares as agreed, to permit inspection, and to provide adequate care and maintenance or
veterinary care. The trial court also determined Ms. Quinn breached the contract by failing to notify
Ms. Tipton when a foal died, by refusing to return the horses, and by failing to maintain insurance
and halter-break foals. In addition, the trial court awarded Ms. Tipton $18,739.50 in attorney fees
based on a provision in the conditional lease agreements. Ms. Quinn appeals from those rulings and
from the trial court's award of $750 in attorney's fees to Ms. Tipton as a discovery sanction.
I. Breach of Contract
Ms. Quinn argues that the trial court erred in finding her in breach. She maintains that
only the initial oral contract and the handwritten memorandum memorializing that agreement were
binding because the subsequent, written leases lacked additional consideration. In part, this issue
of whether the five conditional lease agreements were binding was the subject of Ms. Tipton’s
successful motion for partial summary judgment. In ruling on that motion, the trial court found that
Ms. Quinn breached the contract by failing to renew the equine insurance as required, an obligation
imposed only by the written conditional lease agreements.
Because the trial court's determination on summary judgment that Ms. Quinn had
breached the agreements by failing to maintain the required insurance was based on Ms. Quinn's own
response, there was no issue of material fact regarding compliance with the agreements, and the
court's grant of partial summary judgment was purely a question of law. Accordingly, our review
of the issue decided in that procedural posture is de novo with no presumption of correctness.
Sullivan v. Baptist Mem. Hosp., 995 S.W.2d 569, 571 (Tenn. 1999); Tullahoma v. Bedford County,
938 S.W.2d 408, 412 (Tenn. 1997).
In addition, after the bench trial, the trial court found that Ms. Quinn had also breached
the contracts in the following ways:
She did not breed the mares as she agreed; she did not comply with the
contract terms as to the right of the owner, Doris Jean Tipton, to make
inspections. She did not at her own expense provide adequate quality and
quantity of feed, water, nutrients, shelter, care and maintenance and
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veterinary care, and attention and for the horse hereby leased and any get or
increase (foals) thereof. Bi-monthly information as required by individual
contracts was not provided by defendant to plaintiff. When a foal of Lancers
Shamia died, defendant did not notify pursuant to the contract the plaintiff.
These findings make it clear that the trial court found, as a matter of law, that Ms. Quinn
was bound to the lease agreements. We agree with the trial court's determination that the five
conditional lease agreements were binding on Ms. Quinn and enforceable against her.
The doctrine of merger provides that "the last agreement concerning the same subject
matter that has been signed by all parties supersedes all former agreements, and the last contract is
the one that embodies the true agreement." Magnolia Group v. Metropolitan Dev. & Housing
Agency, 783 S.W.2d 563, 566 (Tenn. Ct. App. 1989). A conclusive presumption that the writing
represents the parties' final agreement arises after the parties have reduced their agreement to a clear
and unambiguous written contract. Faithful v. Gardner, 799 S.W.2d 232, 235 (Tenn. Ct. App.
1990). Consequently, all parol agreements on the same subject matter are deemed merged with the
contract as written. Id.
Without question, each of the successive agreements involved in this case covered the
same subject matter, the leasing, breeding, and boarding of specific horses. Southwest Progressive
Enter., Inc. v. Shri-Hari Hospitality, LLC, No. 01A01-9810-CH-0542, 1999 WL 675136 at *4 (Tenn.
Ct. App. Sept. 1, 1999) (no Tenn. R. App. P. 11 application filed). Further, where, as here, there is
evidence that the parties contemplated finalizing their agreement in a formal writing, application of
the merger doctrine is appropriate. Turner v. Zager, 50 Tenn. App. 674, 685, 363 S.W.2d 512, 517
(1962). Ms. Quinn testified that she knew the written agreements would be forthcoming when Ms.
Tipton got them ready.
Moreover, it is well settled that we must interpret contracts according to their plain terms.
Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975).
The integration clause in each of the lease agreements states:
This constitutes the entire agreement between the parties herein and is non-
transferrable and non-assignable and shall be binding for and upon the parties
hereto, thier [sic] heirs, executors, administrators, legatees, successors, and
assigns.
This clause, along with the clause stating that each lease began by the earlier verbal
agreement, clearly reflect an intent for the final contract to encompass the parties' total agreement.
"This clause is not meaningless. By signing this contract both parties agreed that the written lease
would set forth their final agreement." Brookside Mills, Inc. v. Specialty Retail Concepts, Inc., (no
case number given) 1987 WL 26206 at *4 (Tenn. Ct. App. Dec. 8, 1987) (no Tenn. R. App. P. 11
application filed). Thus, we must conclude that any prior agreements between the parties merged
into the executed conditional lease agreements written by Ms. Tipton which both parties executed.
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We note, in this respect, that several of the agreements include handwritten notations reflecting
events in December 1994, January 1995 and March 1995, all before the contracts were executed by
the parties, which resulted in changes to the agreements as originally drafted. For example, the
agreement regarding the mare Ansa has a notation dated March 15, 1995 that "Leasee [sic] states she
did not get mare bred in 1994 by her choice Leasor(s) [sic] agree to forward this agreement one
year."
Having determined that the written agreements Ms. Quinn executed were binding, we
must consider whether the trial court erred in finding that Ms. Quinn breached their terms.7 As noted
above, it is undisputed that Ms. Quinn failed to maintain insurance on the horses as the agreements
mandated. See Tenn. R. Civ. P. 56.04. Thus, the trial court did not err in granting partial summary
judgment on that ground. Because the remainder of this case was heard in a bench trial, we review
findings made after trial de novo, with a presumption of correctness attaching to the trial court's
findings of fact. See Tenn. R. App. P. 13(d).
Turning to these findings, the agreements required Ms. Quinn to provide "adequate
quality and quantity of feed, water, nutrients, shelter, care, and maintenance, and Veterinary care"
to each mare and foal, all in accordance with good husbandry, including specific procedures to
suppress parasites and injections to prevent disease. In addition, Ms. Quinn was required to provide
written proof of all medical treatment, and to provide records of regular health care every 60 days,
along with photographs or videos of the horses.8 She agreed to notify Ms. Tipton "within two hours
of any accident, injury or illness" affecting the horses "followed within seventy-two (72) hours by
postage pre-paid, certified mail, a written statement by a licenced [sic] veterinarian of the diagnosis
and prognosis of said horse(s)." The agreements required that proof in writing of breeding dates be
provided within ninety days of conception.
Ms. Tipton testified that Ms. Quinn failed to notify Ms. Tipton when a foal died, when
several of the mares were bred and also failed to provide timely reports of the horses’ conditions.
In addition, Ms. Tipton testified that the horses were underfed and presented photographs showing
their condition upon their return to her possession. Ms. Tipton also testified that she was not
permitted to inspect the horses, contrary to the Ms. Quinn's grant to her in the agreements of "the
right to enter upon the premises at any reasonable time without prior notice" to inspect the horses,
foals, and Ms. Quinn's premises.
Ms. Quinn disputed some of the factual allegations against her, such as whether the
horses received adequate feed, but she primarily defended her actions as either not required by the
agreements or justified by prior breaches by Ms. Tipton. As the trier of fact, the trial court had the
7
W e note that some of the duties Ms. Quinn was found to have breached are also part of the earlier oral
agreement, memorialized in the handwritten memorandum, which Ms. Quinn herself asserts is binding.
8
Regarding this obligation, the agreemen ts specifically p rovided , "NO EXCEPTIONS WILL BE MADE!
FAILURE TO PROVIDE T HIS BI-MONTHLY INFORMATION AS PROVIDED FOR HEREIN SHALL BE
CON SIDE RED 'BREE CH [sic] O F CON TRA CT' TE N DA YS PA ST D UE."
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opportunity to observe the manner and demeanor of the witnesses as they testified. The weight given
to a witness's testimony lies in the first instance with the trier of fact, and this court must accord great
weight to the trier of fact's decisions on issues of credibility. Mays v. Brighton Bank, 832 S.W.2d
347, 352 (Tenn. Ct. App. 1992); Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844, 849 (Tenn. Ct. App.
1982). Having reviewed the record, we cannot say that the evidence preponderates against the trial
court’s findings that Ms. Quinn breached various provisions of the contracts.
II. Damages for the Breach
The more problematic issue in this appeal is the proper calculation of damages. Ms.
Quinn maintains that even if the contracts were breached, the damages were improperly calculated,
specifically asserting that Ms. Tipton proved no damages arising from the alleged breaches. The trial
court awarded Ms. Tipton $28, 932.70 in damages, but we find no specific findings regarding how
the damages were calculated. Ms. Tipton testified regarding costs she had incurred due to the
breach, such as boarding the mares for the unexpired terms of the agreements, and introduced as
exhibits to her testimony five documents titled summary of damages, each one related to a specified
mare. The language of the five agreements and the evidence at trial are difficult to reconcile, to
interpret, and to apply regarding the damages due and the damages incurred. Therefore, a long
explanation is required.
We begin with the language of the agreements, all of which contained a liquidated
damages clause, which was not brought to the attention of the trial court or of this court and was not
argued by the parties. Nonetheless, we cannot ignore that provision of the written agreements whose
enforcement was strongly sought by Ms. Tipton, the drafter. We have held the agreements
enforceable. The provision in question states:
It is futher [sic] expressely [sic] understood and agreed if for any reason at
any time during the contience [sic] of this agreement or any extension thereof
HORSE(S) reverts to LEASOR(S) [sic] possession for any reason
LEASOR(S) [sic] will be entitled to compensation in the cash sum of Two
Thousand Dollars ($2000.00) per year for the life of the contract, payable on
demand.
"Liquidated damages is defined by case law as a sum stipulated and agreed upon by the
parties at the time they enter their contract, to be paid to compensate for injures should a breach
occur." Guiliano v. Cleo, Inc., 995 S.W.2d 88, 96 (Tenn. 1999) (citations omitted). Liquidated
damages clauses are legal and binding in Tennessee as long as they are not punitive in nature, are
a reasonable estimate of the damages likely to be incurred, or are a reasonable estimate if damages
are likely to be uncertain or hard to prove. Id.
In this case, Ms. Tipton drafted the agreements and included the liquidated damages
provision. Therefore, any ambiguity in the terms of the agreements must be construed against her.
Harrell v. Minnesota Mut. Life Ins. Co., 937 S.W.2d 809, 814 (Tenn. 1996); Travelers Ins. Co. v.
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Aetna Cas. & Sur. Co., 491 S.W.2d 363, 365 (Tenn. 1973). It must be assumed that she anticipated
that the amount set as liquidated damages would be fair and adequate compensation in the event the
horse(s) were returned to her for "any reason" during the terms of the contract. Further, her
testimony regarding her costs for boarding and other expenses demonstrate that the $2000 per year
was a reasonable estimate of the damages she would incur due to the early return of the mares.9
To some extent, the issue of damages must be considered in the context of the "benefit
of the bargain" each expected from the arrangement. The agreements contemplated that Ms. Quinn's
compensation for boarding and taking care of the mares was to be a foal from each mare except
Lancers Shamia. Ms. Tipton was relieved of all costs associated with care and maintenance of the
horses and was, in turn, to receive the second foal by each mare. These general statements of mutual
obligation are subject to the specifics of each agreement, discussed below. We interpret the
liquidated damages provision as applicable to any damages Ms. Tipton incurred because of the early
return of the horses. We do not, however, consider it as determinative of the ownership of the foals
which were born during Ms. Quinn’s possession of the horses. Rather, we look to the terms of each
agreement for guidance regarding each party’s rights to the six foals which were awarded to Ms.
Tipton.
The five mares and their six foals "reverted to Ms. Tipton's possession" in August 1996
as a result of her obtaining a court order for their return.10 Therefore, according to the liquidated
damages provision, Ms. Tipton's damages would be limited to $2000 per year, or $166.66 per month
remaining in each of those contracts which were in effect at the time of the horses' return. Our
reading of the contracts indicates that three were in effect at the time the horses were returned.
The lease agreement covering Ansa Pierkimsey (Ansa) had a term of 2-1/2 years, was to
begin June 1, 1994, and end November 31, 1997, which we calculate to be 3-1/2 years. However,
that discrepancy is explained by a handwritten notation dated 3-15-95 reflecting that because Ms.
Quinn did not breed this mare in 1994, Ms. Tipton agreed to "forward" this agreement one year. The
agreement originally contemplated a 1995 foal by a named stallion owned by Ms. Tipton, leased on
a separate contract to Ms. Quinn for this purpose, with the mare to be rebred in 1995 to a stallion of
Ms. Tipton's choice for a 1996 foal for Ms. Tipton. The amendment also provided that if the mare
was not verified by a vet as being in foal by May 1, 1995, it was to be returned to Ms. Tipton.
Ms. Tipton testified that although Ms. Quinn told her on March 15 that Ansa had not been
bred, Ms. Quinn filed an insurance application shortly thereafter indicating that the mare had been
9
Ms. Tipto n claimed $5.83 per day for board and upkeep for a mare or a foal, which is an annual cost of
$2127.95.
10
Ms. Quinn’s argument that no damages resulted from the breaches found by the court ignores the return of
three of the horses prior to the expiration of the term of the agreements. This return was ordered after Ms. Quinn
admitted she did not have insurance coverage for Ms. Tipton’s horses which were in her possession. The early return
of the horses triggered the liquidated damages provision, which constituted an acknowle dgment tha t such action w ould
result in damages to Ms. Tipton.
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bred in February. In any event, Ansa had a foal in 1995, and it was one of the six foals returned to
Ms. Tipton in August of 1996. Ms. Tipton's testimony regarding damages indicates that she was
entitled to two foals under the agreement regarding Ansa, and that she would consider the 1995 foal
in her possession to be an offset to the 1996 foal due her.
Ms. Tipton also claimed $5000 in damages for the second foal she thought she was due
which was not born. We are unable to find any obligation in the agreement for a second foal to Ms.
Tipton. The only provision regarding another breeding relates to an option to renew the lease
agreement for two years. The agreement provided that the mare would be rebred to a stallion of Ms.
Tipton’s choice if the option to renew was not exercised in the time allotted, resulting in the mare
being returned with a foal in utero. The original term of the agreement was to expire in November
1997, and the option to renew was to have been exercised by August 31, 1997. Because the horse
was returned a year before the time for exercising that option, the in utero provision is ineffective.
Thus, we conclude that Ms. Tipton was entitled to only one foal from Ansa and was not entitled to
any damages for another foal not produced.
Ms. Tipton also claimed daily board for the mare Ansa at $5.83 per day, for a total of
$355.63 for October and November of 1996. Under the lease agreement, Ms. Quinn was obligated
to provide board for the mare and the foal belonging to Ms. Tipton for the term of the contract, until
November 30, 1997. Therefore, under the liquidated damages clause, Ms. Tipton would be entitled
to $2000 per year for the time remaining on the contract, which we calculate to be $2500.
The agreement covering the mare Rozyczna (Roxy) is similar to the one covering Ansa.
It also stated its term was 2-1/2 years, from June 1, 1994 to November 31, 1997, and also included
a handwritten provision that Ms. Tipton "has agreed to forward contract to 1995," apparently because
Ms. Quinn had not bred this mare in 1994 as originally contemplated. The original agreement
acknowledged that Roxy was to bear a 1995 foal by a named stallion belonging to Ms. Tipton, also
leased to Ms. Quinn for this purpose. The mare was to be rebred in 1995 to a stallion of Ms. Tipton's
choice for a 1996 foal. Both the mare and the 1996 foal were to be provided care and maintenance
by Ms. Quinn until the end of the contract. That arrangement was subject to a provision in the
handwritten amendment that the mare must be confirmed by a vet as being in foal by May 1, 1995
or returned to Ms. Tipton.
The agreement also included an option to renew for two years and a provision stating that
if the renewal option was not exercised in the time allotted then the mare was to be rebred to a
stallion of Ms. Tipton's choice at Ms. Quinn's expense, resulting in return of the mare at the end of
the contract with foal in utero. While this renewal option could arguably provide Ms. Tipton with
a second foal, the contract was breached and the horses returned to Ms. Tipton prior to the time for
the option to be exercised. Therefore, we interpret this agreement as entitling Ms. Tipton to one foal
from this mare.
Ms. Tipton testified that the agreement provided for Ms. Quinn to get the first foal, Ms.
Tipton the second, and for the mare to be returned with a foal in utero. As explained above, we find
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no language in the agreement which would entitle Ms. Tipton to a second foal or to having the horse
returned pregnant, since the horse was returned in August 1996 and the original agreement was not
to expire until November 1997. Roxy’s 1995 foal had been returned to Ms. Tipton’s possession by
court order. Ms. Tipton testified that if she were awarded this foal that would offset one of the two
foals she claimed she was due. She also claimed $3500 damages as the value of the foal which was
not conceived. Because we can find no basis in the agreement for her claim to a second foal, we
conclude Ms. Tipton is not entitled to any damages for a 1997 foal.11
In addition, Ms. Tipton claimed $2658.48 in damages for daily board for Roxy from
September 1996 through November 1997. Because Ms. Quinn was obligated to provide board for
this mare and her foal through the end of the contract, we agree that Ms. Quinn was entitled to
damages, but conclude that those damages must be assessed in accordance with the liquidated
damages provision. Just as in Ansa's situation, the amount due under that provision is calculated to
be $2500.
The agreement covering the mare Khemoshen stated its term at 2-1/2 years, beginning
June 1, 1994 and ending November 31, 1996. The agreement states the lessee's purpose is for "the
1995 foal, by a stallion of Leasee's [sic] choice..." It includes a handwritten note that Ms. Quinn had
reported that this mare had been bred for a May 1995 foal. The agreement further provided that the
compensation to Ms. Tipton was care and maintenance of the mare and of any "get or increase.” The
mare was to be rebred in 1995 to a stallion of Ms. Tipton's choice, and Ms. Quinn was to maintain
the 1996 foal until weaning. We interpret this agreement as giving Ms. Quinn the first (1995) foal,
and Ms. Tipton the second (1996) foal. Khemoshen gave birth to two foals while in Ms. Quinn's
care, and both foals were returned to Ms. Tipton’s possession.
Ms. Tipton testified that she was due two foals under the contract, explaining that Ms.
Quinn was to get the first (1995) foal, Ms. Tipton the second, and that the mare was to be returned
to her in November of 1996 "in an impregnated state." When she regained possession of the horse
in August 1996, apparently the mare was not pregnant. Consequently, she claimed she was due the
two foals then in her possession. On review, the only contract provision requiring that the mare be
rebred before her return to Ms. Tipton in November of 1996 was effective only if the renewal option
was not timely exercised. The two-year option was to be renewed by August 30, 1996, and only if
neither party was in default at that time. Since Ms. Tipton had sued for breach of contract, and had
obtained possession of the horses because of Ms. Quinn's default in performance prior to the renewal
option date, we conclude that the option provision was ineffective. Thus, we conclude that Ms.
Tipton was due only one foal from Khemoshen.12
11
W e also note that because the mare was returned before any obligation to breed the mare arose, Ms. Tipton
did not attempt to mitigate her damages by breeding the mare upon its return to her possession.
12
Again, we note that M s. Tipton c ould have rebred this m are after its return to her possession , since it would
have been bred after August 30 under the agre ement’s option provision. Sh e had a duty to mitigate her dam ages.
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Ms. Tipton also claimed damages of $627 for daily board of the mare and foal for
October and November of 1996 and for halter breaking the foal. These damages are the sort
contemplated by the liquidated damages provision. Therefore, we conclude that Ms. Tipton was
entitled to liquidated damages for the three months remaining on the agreement after the return of
the horses, which is $500.
The liquidated damages provision, by its own terms, became effective if the horse was
returned to Ms. Tipton during the term of the agreement. Our review of the agreements indicates
that two of the agreements had expired before the horses were returned.
The agreement covering Lancers Shamia stated its term to be 1-1/2 years, beginning
August 31, 1994, and ending April 30, 1996. A third party, Ms. Fields, was to get this mare's 1995
foal by a named stallion belonging to Ms. Tipton, and the contract reflects that the foal was due July
23, 1995. There is testimony that a foal of Lancers Shamia died in June or July of 1995, and we
assume this is the foal whose birth was anticipated in the agreement.13 Ms. Quinn was to provide
care and maintenance of this mare until April 30, 1996 and all three parties agreed that the horse
would be kept on Ms. Quinn's property. We conclude this agreement provides that neither Ms.
Quinn nor Ms. Tipton was to receive any foal or foals.
In her testimony at trial, Ms. Tipton did not disagree with this interpretation. She testified
several times that she was not due a foal from this horse. In spite of this testimony, she entered into
evidence a document entitled summary of damages related to this horse which included an item, for
which she claimed no damages, stating “Value of 1996 Foal (offset by 1995 foal).” When later
asked about the implication in this statement that she had gained possession of this mare’s 1995 foal,
Ms. Tipton again testified that she was not due a foal under the terms of the agreement and that she
did not have possession of any foal from this mare.
However, she claimed that Ms. Quinn's delay in returning the mare in April 1996
prevented Ms. Tipton from breeding the mare that year and, therefore, deprived her of a foal. She
testified that she had written the contract "so that the mare would come back in the spring in time
for me to breed her" and that Ms. Quinn had refused to return the mare at the expiration of the
agreement and had hindered Ms. Tipton's attempts to retrieve the mare. She estimated the value of
the foal she had anticipated at $5000. Ms. Tipton did not request damages for any boarding, since
the mare had been kept beyond the term agreed upon.
On cross-examination, Ms. Tipton agreed that nothing prohibited her from breeding the
returned mare in the fall. She stated that she preferred spring breeding, but some other horse owners
bred in the fall. When asked if she could have bred the returned mare and not suffer any loss as a
result of the mare being returned four months late, but chose otherwise, Ms. Tipton answered yes.
She maintained she had a right to choose when to breed her mare. In essence, this is an admission
that she could have mitigated or avoided the loss of a foal, but chose not to. Because a party seeking
13
Ms. Tip ton cited M s. Quinn’s failure to notify her of the foa l’s death as a br each of the a greement.
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damages for breach of contract is under a duty to mitigate damages, we conclude that Ms. Tipton is
not entitled to the $5000 she claimed for the delay in return of the mare Lancers Shamia. ACG, Inc.
v. Southeast Elevator, Inc., 912 S.W.2d 163, 169 (Tenn. Ct. App. 1995) and Nashland Assocs. v.
Shumate, 730 S.W.2d 332, 333-34 (Tenn. Ct. App. 1987).
The agreement covering Touch of Class began June 5, 1994, and stated it had a 1-1/2 year
term and was to end October 31, 1995. By handwritten notes dated December 23, 1994, it was
acknowledged that Ms. Quinn had not bred this mare to Ms. Tipton's stallion originally named in the
agreement, but had bred it to another stallion owned by a third person. The foal from that breeding
was due in June 1995. Under the agreement, Ms. Quinn was to provide care and maintenance for
Touch of Class and her 1994 foal "DDT Sassi Classi" and to rebreed Touch of Class to a stallion of
Ms. Tipton's choice in 1995 (to produce a 1996 foal). The contract does not indicate that Ms. Tipton
was to get the foal, but since the contract was to end in October 1995, we assume Touch of Class
was to be returned while she was in foal. This contract did not contain an option to renew nor
mention any potential second foal due to Ms. Tipton. For reasons that are not clear in the record,
Ms. Quinn kept possession of Touch of Class beyond the expiration of the agreement.
Ms. Tipton testified that the agreement provided for Ms. Quinn to get the first foal from
this mare, Ms. Tipton to get the second, and for the mare to be returned to her with a foal in utero.
Based upon the provisions outlined above, acknowledging that a foal was due in June 1995 and
establishing expiration of the agreement in October 1995, we must conclude that Ms. Tipton was
mistaken regarding the obligations of the agreement.14 We conclude that Ms. Tipton was entitled
to have this mare returned to her in October 1995 with a foal in utero. In fact, Ms. Quinn retained
the horse beyond October 1995, and the horse had a foal in 1996. Ms. Tipton obtained possession
of two foals from this mare. In her direct examination on damages, Ms. Tipton claimed she had
obtained possession of one foal and was entitled to two foals and, therefore requested $5000 as the
value of a second foal. Because Ms. Tipton was due, at most, one foal, she is obviously not entitled
to the $5000 claimed.
Ms. Tipton also claimed expenses for board of a foal returned to her in January of 1995
which, under the terms of the agreement, she claimed should not have been returned to her until
October of 1995. She claimed $1591.51 in boarding costs for nine months. The agreement obligated
Ms. Quinn to board Touch of Class’s 1994 foal, "DDT Sassi Classi”, which was given into Ms.
Quinn’s possession with its mother, until the end of the contract. However, a later notation on the
contract, dated January 25, 1995, indicates this foal was returned to Ms. Tipton and another foal,
"WF Pleasant Dream" was picked up on March 15, 1995"(on contract to be breed [sic])” to be "halter
broke by Leasee [sic] for balance of this contract."
Although the language is far from clear, it appears Ms. Quinn was to maintain this second
foal for the duration of the contract, until October 1995. There is no testimony in the record
regarding the circumstances under which Sassi Classi was returned early. Similarly, there is no
14
Testimony established that the gestation p eriod for horses is eleven mo nths.
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testimony regarding the parties’ intent that Pleasant Dream be maintained under this agreement.
Therefore, we must interpret the handwritten addition, made before execution of the agreement,
according to its terms. The agreement itself was not signed by the parties until after the notation that
Sassi Classi had been returned to Ms. Quinn. Therefore, we conclude that Ms. Quinn was under no
obligation under the terms of the agreement as executed to board Sassi Classi, and Ms. Tipton was
not entitled to any damages for boarding the foal returned in January. Whether Ms. Quinn was
obligated to board Pleasant Dream under this agreement is moot because she kept that foal until the
horses were returned in August 1996. Ms. Quinn did agree, however, to halter break the foal
Pleasant Dream. There is no testimony whether she did or did not.
While Ms. Tipton sought $200 damages for halter breaking a foal, she testified that this
cost was incurred for halter breaking Touch of Class’s 1996 foal. “The ‘96 foal that came back had
to be broken, and I contracted someone to do that, for the sum of $200.” We can find no basis in the
agreement for any obligation on Ms. Quinn’s part to halter break a 1996 foal. The agreement
envisioned that the mare would have been returned to Ms. Tipton by October of 1995; thus, Ms.
Tipton would have been responsible for making whatever arrangements she wished regarding
breaking any foal born after that date. In other words, her payment for these services did not result
from any breach of a contract by Ms. Quinn. Thus, we conclude that Ms. Tipton is not entitled to
the $200 she claims for halter breaking the 1996 foal.
Based on the five exhibits marked summary of damages, Ms. Tipton’s total claim for
damages regarding the five conditional lease agreements relating to the mares was $23,932.70. The
trial court awarded her $28,932.70 in damages for breaches of these agreements and the stallion
servicing agreements. Having closely examined the testimony, the exhibits, and the trial court’s
ruling, we conclude that the trial court awarded Ms. Tipton $5,000 for breach of a stallion services
contract for El Paso Seville.15 Ms. Tipton testified that she was to receive breedings to four of her
mares under that agreement, but only three of her mares were serviced. Ms. Quinn was keeping this
stallion on her property and also had possession of the mare who was to be bred, that same Pleasant
Dream which was mentioned in the lease agreement covering Touch of Class. Ms. Quinn valued
the foal which would have resulted from that breeding at $5000.
In her brief, Ms. Quinn specifically states that the contracts regarding stallions are not the
subject of this appeal. In the context of damages, we interpret that to mean that Ms. Quinn does not
contest on appeal the $5000 award for breach of the stallion services contract for El Paso Seville.
Our recalculation of Ms. Tipton’s damages under the liquidated damages and other
provisions of the agreements, as individually set out above, results in an award to Ms. Tipton of
$5500 for breaches of the five conditional lease agreements on the five mares. Therefore, we amend
the award of damages to Ms. Tipton from $28,932.70 to $10,500.
15
The trial court found that Ms. Quinn ha d breached the ag reements regardin g the stallions as well as those
covering the mares. In its m emorand um, the cou rt specifically declined to award Ms. Tipton any damages regarding
another stallion services contract beca use she had the stallion in her possession an d did not mitigate her dam ages.
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However, there is still the consideration of title to the foals born to Ms. Tipton's five
mares. We have attempted to reconcile the testimony, pleadings and other documents in this case
in trying to identify the six foals returned to Ms. Tipton’s possession. The parties and the trial court
appear to agree that six foals were born to Ms. Tipton’s five mares while they were in Ms. Quinn’s
possession. The amended order granting partial summary judgment ordered prompt return of the five
named mares “together with all six of the foals born to any of the above described mares while in
the possession of the Defendant.” Ms. Tipton’s testimony on direct examination, as well as the five
exhibits she introduced outlining her damages, account for only five of those: Khemoshen’s 1995
and 1996 foals; Rozyczna’s 1995 foal; Ansa’s 1995 foal and Touch of Class’s 1995 foal. Absent
from this list is a 1996 foal from Touch of Class.
In an affidavit for her motion for partial summary judgment dated May 17, 1996, Ms.
Tipton stated that Touch of Class was due to have a 1996 foal on May 26, and that the agreement
entitled her to that foal. In an affidavit signed June 17, 1996, Ms. Quinn stated that Touch of Class
had foaled and was nursing. She agreed that this foal was to be returned with the mare. When the
trial court ordered possession of all six foals returned to Ms. Tipton, it also specifically ordered that
title and ownership of Touch of Class’s 1996 foal vest in Ms. Tipton. However, at trial Ms. Tipton
originally testified to receiving possession of only one foal from Touch of Class, her 1995 foal. Ms.
Tipton stated that if she were given this foal, it would offset the 1996 foal due her, clearly implying
she did not have possession or ownership of this foal. At one point she introduced a picture of
Touch of Class’s 1995 foal which she said was returned to her under court order. Regarding the
Touch of Class agreement, the following testimony was had:
Q: Under the contract it’s the same as the other; Ms. Quinn got the first one,
and you got the second one, and it would come back with a foal16 in utero; is
that correct?
A: Yes.
Q: And the Court placed you back in possession with one of the foals; is that
correct?
A: Yes.
Q: Now, to keep that horse, that takes care of one of those; is that correct?
A: Right.
Q: So you’re supposed to get two, but you only have one right now; is that
correct?
16
The court repo rter who pre pared the transcript used the word “fo e” for the wo rd “foal” througho ut the
transcript. To reduce confusion, we will refer to foals when quoting from the record.
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A: Yes, sir.
Having already testified that she had gotten the 1995 foal back by court order, and only
had one Touch of Class foal in her possession, Ms. Tipton then testified that Touch of Class’s 1996
foal “that came back” had to be halter broken and claimed damages for that.
Obviously, there is some error in Ms. Tipton’s direct testimony. The inconsistency was
clarified somewhat on cross-examination, when Ms. Tipton was asked about her exhibit, a summary
of damages for the agreement on Touch of Class.
Q: What exactly are you referring to there, ma’am? Was there a ‘95 foal
born?
A: Yes, there was.
Q: Was a ‘96 foal born?
A: Yes, there was.
Q: You’ve got both of those?
A: Yes.
We deduce that Ms. Tipton had possession of Touch of Class’s 1996 foal. Ms. Tipton
was given possession of six foals by court order in August 1996 and given ownership of the 1996
foals of Khemoshen and Touch of Class. Ms. Quinn had not disputed Ms. Tipton’s claim to those
two foals, acknowledging in her affidavit that those foals were to be returned with their mothers.
We affirm the award to Ms. Tipton of the 1996 foals of Touch of Class and Khemoshen. The parties
do not dispute, and the contract supports Ms. Tipton’s entitlement to those two foals.
We can find no similar basis, however, for awarding the 1995 foals of those two mares
to Ms. Tipton. Again, the parties agree that Ms. Quinn was to get ownership of those two foals, and
Ms. Tipton’s claim to them rests on her interpretation of the lease agreements for those two mares.
As discussed above, we have concluded that her interpretation is incorrect. Therefore, Ms. Quinn
is awarded ownership of the 1995 foals of Touch of Class and Khemoshen.
We affirm the award of the remaining two foals, one from Roxy and one from Ansa, to
Ms. Tipton. As outlined above, Ms. Tipton was due one foal from each of those mares under the
agreements. Since only one foal was born to each of those mares during their possession by Ms.
Quinn, Ms. Tipton is entitled to those foals because of Ms. Quinn’s breach of the agreements.
Based on our review of the terms of each agreement, as set out above, we conclude that
Ms. Tipton was entitled to four foals: the 1996 Touch of Class foal, the foal from Roxy, the foal
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from Ansa, and the 1996 foal from Khemoshen. Accordingly, we affirm the trial court’s award of
those foals to Ms. Tipton. However, we modify the trial court’s award of the foals to award to Ms.
Quinn the 1995 foals of Touch of Class and Khemoshen. Those two foals shall be returned to Ms.
Quinn within thirty days of entry of this opinion and the judgment herein. The trial court shall
consider any issues regarding compliance with this order and may devise an appropriate remedy,
consistent with this opinion, if it finds that return of the two horses is impossible. Ms. Tipton is not
entitled to boarding or other costs associated with her possession of Ms. Quinn’s foals since August
of 1996.
III. Attorney's Fees
Each of the five conditional lease agreements included the following provision:
Should any legal dispute arise between the parties herein LEASOR(S) [sic]
will be entitled to all reasonable Attorney's fees, Filing fees, Court cost [sic],
ETC. [sic] in their pursuit of a legal and just settlement in all matters as
pertained to herein.
Pursuant to that provision, Ms. Tipton requested attorney’s fees and, in support of that
request, introduced an exhibit she described as billings from her previous attorney. Ms. Tipton
testified that not all the billings were for this case, but also included services related to other matters.
She testified that she had separated out the billings for her dispute with Ms. Quinn and that the total
was $9,454.50. The last invoice from this attorney in the record is dated February 12, 1997. Also
entered into evidence was her trial counsel’s affidavit and bill showing 61.7 hours worked. The trial
court awarded Ms. Tipton $18,739.50 for fees she paid her attorneys in pursuing this matter.
On appeal, Ms. Quinn maintains that the trial court erred in calculating the amount of fees
because the total includes fees attributable to Ms. Tipton’s first counsel who agreed to waive all fees
when he withdrew from representation of Ms. Tipton. This argument rests on a letter from Ms.
Quinn to her prior attorney dated June 2, 1997. That letter appears in the record as an attachment
to a pro se motion filed by Ms. Tipton asking for time to hire counsel. Ms. Quinn relies on a
sentence wherein Ms. Tipton agrees “to accept your offer to resign as my attorney in any and all legal
concerns with your waiver of all fees.” Ms. Quinn argues that this letter “appears to be an
agreement” between Ms. Tipton and the prior counsel to waive all fees.17
Remarkably, this letter was never introduced into evidence, and Ms. Tipton was not
questioned about it. At trial, the issue of what she meant in this letter was simply not raised. In
addition, Ms. Tipton was not cross-examined about her testimony that she paid $9,454.50 in fees
17
In her brief, Ms. Tipton argues this “waiver” did not apply to fees already paid and that the attorney fees
awarded for her first counsel’s efforts reimbursed her for amounts she already had paid him before the waiver.
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to her former attorney for services related to this lawsuit. Thus, her testimony remains unrebutted
on that issue.
We cannot consider the letter and any questions it raises for two reasons: (1) it was not
introduced into evidence, and (2) the trial court was not asked to consider the letter and was not
provided any evidence upon which it could determine the issues Ms. Quinn now seeks to raise on
appeal.
Ms. Quinn also asserts that the fees assessed by Ms. Tipton’s second counsel duplicate,
in part, the first attorney’s efforts. With regard to trial counsel’s bill, Ms. Quinn’s only argument
is that that attorney duplicated efforts of the prior attorney beyond a reasonable amount necessary.
However, our review of the record indicates no such challenge was made in the trial court. This
court will not consider issues raised for the first time on appeal. Davis v. Tennessee Dept. of
Employment Security, 23 S.W.3d 304, 310 (Tenn. Ct. App. 1999).
Therefore, we affirm the trial court’s award of attorney’s fees.
IV. Discovery Sanctions
Ms. Quinn argues that the trial court abused its discretion in assessing $750 in discovery
sanctions against her by failing to make a factual finding of actual prejudice or provide her with
notice that she could be sanctioned for failing to timely respond to discovery requests. She also
maintains that Ms. Tipton incurred no attorney’s fees because she was acting pro se when she filed
the motion for discovery sanctions.
The record shows that Ms. Tipton was not acting pro se when the motions to compel and
for sanctions were filed. In fact, on November 7, 1997, Ms. Tipton’s second counsel filed the
motion to compel, asserting that Ms. Quinn had failed to timely respond to interrogatories. On
December 1, 1997, the trial court granted the motion, ordering Ms. Quinn to respond to the discovery
requests within fifteen days “or suffer such sanctions as may be imposed pursuant to Rule 37.02 of
the Tennessee Rules of Civil Procedure.” On February 6, 1998, after a hearing, the trial court issued
a second order compelling Defendant to respond "fully, completely and in a non-evasive manner"
to discovery, finding that Ms. Quinn failed to comply with the December 1 order. The court also
ordered Ms. Quinn to pay $750 in sanctions for the "reasonable and necessary attorneys' fees for the
preparation and argument of the Motion for Sanctions against the Defendant."
Rule 32.02 of the Tennessee Rules of Civil Procedure authorizes a variety of sanctions
against persons who fail to obey orders to provide or permit discovery. The Rule provides that in
lieu of or in addition to those sanctions:
the court shall require the party failing to obey the order or the attorney
advising the party or both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the court finds that the failure was
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substantially justified or that other circumstances make an award of expenses
unjust.
Tenn. R. Civ. P. 32.02(E). Absent an affirmative showing of abuse of discretion, a trial court’s
decision to impose sanctions will not be disturbed. See State ex rel. Comm'r, Dep't of Transp. v.
Cox, 840 S.W.2d 357, 367 (Tenn. Ct. App. 1991).
We find no abuse of discretion here. Under these circumstances, where Ms. Quinn failed
to timely comply with the trial court’s December order, Rule 37.02(E) clearly authorized the
sanction. Further, the December 1, 1997 Order clearly put the Defendant on notice that sanctions
were possible for failure to comply.
V. Conclusion
The judgment of the trial court finding that the defendant had breached her agreements
with the plaintiff is hereby affirmed. The trial court’s awards of attorneys’ fees and discovery
sanctions are also affirmed. The award of damages for breach is modified from $28,932.70 to
$10,500 and the award of the foals is modified such that Ms. Tipton is awarded four foals and Ms.
Quinn is awarded two foals, as set out specifically herein. The case is remanded for such further
proceedings as may be necessary, consistent with this opinion. The costs of this appeal are to be
divided equally between the parties for which execution may issue if necessary.
___________________________________
PATRICIA J. COTTRELL, JUDGE
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