Goolsby v. Upper Cumberland Oil, Inc. , 2000 Tenn. App. LEXIS 409 ( 2000 )

JUDGMENT ON PETITION TO REHEAR

Upper Cumberland Oil, Inc. has filed an extensive and carefully prepared Petition to Rehear in this case.

Appellant first complains that the court was in error in referring to Clifton Goolsby as the Administrator of the Estate of Champ-Goolsby, relative to the Champ-Goolsby lease rather than the owner of the Champ-Goolsby lease by purchase from the Estate of Champ Goolsby. Appellant is correct but the distinction is immaterial. That which is determinative involves the facts surrounding the negotiation of the $1,050 check on June 12, 1997, not the writing of the check on June 10, 1997. Next Appellant claims that the lease allowed a fifteen day grace period to make payments on rentals. Disposition of this issue was made in the original opinion under principles laid down in Max Norton and Long Outdoor Advertising v. John McCaskill, dba City Sign Co., 12 S.W.3d 789 (Tenn.2000). The lease in issue terminated on May 31, 1997. At that time, no notice and no check had been tendered and accepted relative to rent for June of 1997, a time beyond the termination of the lease. There was no rent to pay for June 1997 in the absence of a valid exercise of the option to renew prior to May 31 under principles set forth in Norton v. McCaskill.

The crucial factor determinative of the case were the facts surrounding the June 12, 1997 acceptance of the June rent check by Clifton Goolsby, not the tender thereof on June 10 or June 12 by Upper Cumberland. The trial court made a finding of fact on disputed testimony that “on or about June 10, 1997 and prior to the plaintiff receiving a check for the new rental rate, Plaintiff spoke to the President of Upper Cumberland Oil Co., Joe Moore, and informed him that his lease had terminated.” The crucial part of the finding of fact is not the “on or about June 10” finding but the specific finding that Joe Moore was informed by Clifton Goolsby prior to the plaintiff receiving the check for the new rental rate that his lease had terminated. As a part of this same conversation Goolsby told Moore that he could remain on the premises under a new lease provided the option to purchase was removed. Thereafter Moore accepted the check, at least insofar as the findings of fact of the trial court determine and this court cannot find that the real evidence of this conversation, limited as it is to a credibility assessment of Joe Moore v. Clifton Goolsby, preponderates against the trial court finding. Had the tender and acceptance of the increased rental check been unconditional, equitable principles might intervene to estop Goolsby to deny the renewal of the lease. The acceptance of the check, however, was not unconditional under the trial court finding that Joe Moore was informed by Clifton Goolsby prior to receiving the check, that the lease had terminated and would not be renewed without removal of the option to purchase. The Petition to Rehear is respectfully denied at the cost of Appellant.