Hogan v. Coyne International Enterprises Corp. ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE FILED
January 21, 1999
ROGER P. HOGAN, FRED C. DANCE, ) Cecil W. Crowson
and MUSIC CITY DUST-TEX ) Appellate Court Clerk
SERVICE, INC., )
)
Plaintiffs/Appellants, )
) Appeal No.
) 01-A-01-9712-CH-00733
VS. )
) Davidson Chancery
) No. 95-2911-III
COYNE INTERNATIONAL )
ENTERPRISES CORPORATION )
d/b/a COYNE TEXTILE SERVICES, )
)
Defendant/Appellee. )
OPIN ION O N PE TITION TO REHE AR
Both parties have filed petitions to rehear. With respect to the petition
by the sellers, we have reviewed the petition and find that it does not state a ground
for modification of the original opinion.
With respect to Coyne’s petition, we do not think it requires a change in
result, but it does merit a specific response.
a.
The chief complaint in the petition is with this court’s conclusion that the
sales contract was severable. We have examined the cases cited in the petition,
James Cable Partners, L.P. v. City of Jamestown, 818 S.W.2d 338 (Tenn. App. 1991),
Penske Truck Leasing Co., L.L.P. v. Huddleston, 795 S.W.2d 669 (Tenn. 1990),
Green v. THGC, Inc., 915 S.W.2d 809 (Tenn. App. 1995), and John Deere Plow Co.
v. Shellabarger, 203 S.W. 756 (Tenn. 1918), and do not find any authority contrary to
our original opinion. In fact the definition for a divisible contract adopted by the court
in James seems to specifically describe the contract in this case: “one in which the
performance is divided into different groups, each set embracing performances which
are the agreed exchange for each other.” 818 S.W.2d at 344. Coyne insisted that the
contract be divided and Coyne assigned the values to each division. We do not see
how a plausible argument can be made at this point that the contract was not divisible.
The petition does not address the cases of Bradford & Carson v.
Montgomery Furniture Co., 92 S.W. 1104 (Tenn. 1906) and Young v. Jones, 255
S.W.2d 703 (Tenn. App. 1952). These cases add to the entire/severable picture by
establishing that for the breach of a severable contract the plaintiff has the burden of
proving how much damage resulted from the breach. That is the simple consequence
of this whole exercise. Coyne was entitled to reduce its payment by every penny
caused by Hogan’s breach. By failing to prove that it had suffered any damages from
Hogan’s breach, Coyne should pay the balance of the purchase price.
b.
Coyne’s petition to rehear also takes issue with this court’s reduction in
the award of attorneys fees. We think our discussion in the original opinion properly
disposed of this issue.
We are of the opinion, therefore, that both petitions to rehear should be
denied.
______________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
______________________________________
WILLIAM C. KOCH, JR., JUDGE
______________________________________
WILLIAM B. CAIN, JUDGE
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