Outdoor Source, Inc. v. Outdoor Entertainment, Inc. ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION
AT NASHVILLE, TENNESSEE
The Outdoor Source, Inc., )
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9702- CH-00053
v. )
) FILED
Chancery Court No.
Outdoor Entertainment, Inc., ) 95-2732-I
Defendant/Appellee. ) October 3, 1997
Cecil W. Crowson
Appellate Court Clerk
ORDER
This court entered an order on 13 August 1997 in the above styled case.
Defendant/appellee, Outdoor Entertainment, Inc. (“OEI”), filed a petition for
rehearing on 25 August 1997. It is the opinion of this court that the petition should
be denied.
OEI argues the parties were not heard on the issue of whether the contract
contained an unequivocal provision. To the contrary, plaintiff/appellant, The Outdoor
Source, Inc. (“TOSI”), raised this issue in its initial brief. OEI had the opportunity
to respond in its brief and during oral argument.
OEI also argues our conclusion that section 11(a) constituted an unlawful
forfeiture and our reliance on Quinnan1 are contradictory. Specifically, OEI states:
“Quinnan held that parties may agree that no commissions will be paid after a
salesperson’s employment is terminated, so long as such agreement is ‘unequivocal.’
However, the Court’s holding that this contract - even if unequivocal - would work
a forfeiture against TOSI is inconsistent with Quinnan and Winkler.2” This court did
not hold that an unequivocal agreement would have operated as a forfeiture. Instead,
this court decided based on our earlier conclusion that the Agreement did not contain
an unequivocal expression that OEI’s interpretation of section 11(a) constituted a
forfeiture. Despite OEI’s assertions to the contrary, this court did not address the
1
Quinnan v. American Hosp. Supply Corp., No. 85-195-II, 1985 WL 4076 (Tenn. App.
29 Oct. 1985).
2
Winkler v. Fleetline Prods., Inc., 859 S.W.2d 340 (Tenn. App. 1993).
issue of whether there would have been a forfeiture if section 11(a) unequivocally
denied TOSI post-termination commissions.
We have considered all remaining arguments raised by OEI and find them to
be without merit.
Therefore, it follows that the petition for rehearing is hereby denied. Costs of
this petition are taxed against petitioner/appellee, Outdoor Entertainment, Inc.
Enter this the ____ day of September 1997.
______________________________
HENRY F. TODD, PRESIDING
JUDGE, MIDDLE SECTION
______________________________
SAMUEL L. LEWIS, JUDGE
______________________________
BEN H. CANTRELL, JUDGE