                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 12, 2003 Session

     DLLP, LLC, dba BIG NINE PRODUCTIONS v. INTERNATIONAL
           CREATIVE MANAGEMENT, INC., aka ICM, ET AL.

                     Appeal from the Circuit Court for Hamilton County
                          No. 00C1945 Samuel H. Payne, Judge

                                      FILED JUNE 25, 2003

                                 No. E2002-02452-COA-R3-CV


DLLP, LLC, dba Big Nine Productions (“DLLP”) sued International Creative Management, Inc., aka
ICM (“ICM”) and Rock On Tours, Inc. (collectively “the defendants”) for damages and other relief
arising out of the alleged failure of the defendants to follow through with a concert featuring the
defendants’ principal, a musical group known as the Moody Blues. The defendants moved the court
to compel arbitration under an alleged agreement providing for arbitration in New York City. The
trial court ordered arbitration, but decreed that it would be conducted in Chattanooga. The
defendants appeal, arguing that the trial court was without authority to order arbitration other than
in New York City. By way of a separate issue, the appellee, DLLP, contends that the trial court
ordered “non-binding” arbitration and that it erred in doing so in the absence of the parties’ consent,
said consent being required by Tenn. Sup. Ct. R. 31, Sec. 3(d). It seeks an outright reversal of the
court’s order. We hold that the trial court ordered “binding” arbitration; that such arbitration was
required under the terms of the parties’ agreement; and that the trial court erred in failing to order
that the arbitration would be conducted in New York City. Accordingly, we modify the trial court’s
order. As modified, the order is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
                                Modified; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

Robert E. Cooper, Jr., Samuel L. Felker, and Andrea T. McKellar, Nashville, Tennessee, attorneys
for appellants, International Creative Management, Inc., aka ICM, and Rock on Tours, Inc.

H. Wayne Grant, Harry Cash, and Steven W. Grant, Chattanooga, Tennessee, attorneys for appellee,
DLLP, LLC, dba Big Nine Productions.
                                          OPINION

                                               I.

       DLLP alleged in the amended complaint that it negotiated with the defendants regarding
DLLP’s desire to promote a Moody Blues concert in Chattanooga. Initially, DLLP proposed that
the concert be held at Finley Stadium on the campus of the University of Tennessee–Chattanooga.
The amended complaint sets forth the following additional operative facts:

              Throughout March and April 1999, [DLLP] and Defendants
              negotiated the terms of the parties’ agreement. On March 22, 1999,
              [DLLP’s broker] faxed to [the defendant] ICM’s representative, Terry
              Rhodes, a letter setting forth the proposed terms of the Chattanooga
              concert. On April 21, 1999, [DLLP’s broker] faxed a second letter to
              Terry Rhodes requesting that [the defendant] ICM approve the
              concert in Chattanooga. . . .

              Pursuant to the terms of the document, the concert was to be held on
              August 19, 1999. [DLLP] agreed to pay [DLLP’s broker] $10,000 for
              brokering the deal between [DLLP] and ICM. [DLLP] further agreed
              to pay the Moody Blues $100,000 or fifty percent (50%) of box office
              gross proceeds after taxes. [The defendant] ICM, as agent[] of the
              Moody Blues, was to receive $50,000 immediately and the balance
              was to be payable on the night of the performance. [DLLP] was to be
              responsible for all other production and promotion costs.

              Although numerous documents outlining terms of the negotiation
              were exchanged between the parties, no formal contract was ever
              executed between the parties.

              Sometime between April 30, 1999, and May 6, 1999, [DLLP] was
              advised that Finley Stadium would no longer be available for the
              Moody Blues concert. [DLLP] contacted other possible venues, and
              was able to secure Engel Stadium as a [sic] alternative venue.
              [DLLP] notified Defendants of the new venue, and Defendants
              approved the change of venue.

              On May 6, and May 10, 1999, [DLLP] wired a total of $60,000 to
              [the defendant] ICM and [DLLP’s broker]. [DLLP] then undertook
              to perform all the tasks which were necessary to promote and produce
              the Moody Blues concert, including, but not limited to, securing
              contracts with representatives of the Chattanooga Symphony and
              Opera Association, the Johnson Group; for advertising and


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               marketing, the University of Tennessee box office; for the production
               and sales of tickets, the Apex Electric Company, Inc.; for electrical
               stage work, the Chattanooga Tent Company, Advantage Printing and
               Mailing Services, Engel Stadium, and other companies related to
               producing and promoting the concert.

(Paragraph numbering in original omitted) (emphasis added). The amended complaint goes on to
allege that the defendants refused to allow the Moody Blues to perform in Engel Stadium because
they objected to the group performing in a baseball stadium. The concert was never held. DLLP
alleges breach of contract, unjust enrichment, conversion, fraudulent misrepresentation, negligent
misrepresentation, and breach of warranty. It seeks money damages and other relief.

        The defendants filed a motion to compel arbitration, taking the position that there is a writing
which memorializes the parties’ agreement and that this writing contains a provision requiring
arbitration in New York City under the laws of the state of New York.

       Following a number of hearings, the trial court entered an order on September 3, 2002,
which, as pertinent to the issues on this appeal, decrees that

                the foregoing case shall be submitted to arbitration under the laws of
                arbitration of the State of Tennessee, said arbitration to be conducted
                in Chattanooga, Tennessee by an arbitrator selected by the parties. If
                the parties are unable to agree on the identity of an appropriate
                arbitrator, the Court shall appoint a [sic] an arbitrator upon being
                notified by the parties that the arbitrator cannot be selected by
                agreement.

                                                  II.

        The defendants’ brief raises the following issue:

                Was there a contract between the parties in which they agreed to
                arbitrate in New York City any disputes between them arising out of
                their contractual relationship?

DLLP contends that the trial court ordered non-binding arbitration and that it had no authority to do
so in the absence of the consent of the parties. It relies upon Tenn. Sup. Ct. R. 31, Sec. 3(d).

                                                  III.

       The parties have a sharp disagreement as to exactly what the trial court ordered in this case.
DLLP contends that the court ordered non-binding arbitration, while the defendants assert that the
court decreed binding arbitration. In support of their respective positions, both parties direct us to


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certain cryptic comments the trial court made during the three hearings in the instant case. These
comments, some of which tend to support each party’s side, are not controlling. “A Court speaks
only through its written judgments, duly entered upon its minutes.” Sparkle Laundry & Cleaners,
Inc. v. Kelton, 595 S.W.2d 88, 93 (Tenn. Ct. App. 1979). When interpreting a trial court’s decree,
we cannot rely upon comments made from the bench when those comments were not incorporated
into the court’s order. Rather, we must look only to the language of that order, at least to the extent
that the language is clear and unambiguous.

         In the instant case, the trial court decreed that the case “be submitted to arbitration.” Since
the parties did not consent to non-binding arbitration pursuant to Tenn. Sup. Ct. R. 31, Sec. 3(d), the
trial court was without authority to order such arbitration. We can only conclude from this that the
trial court ordered traditional, i.e., binding, arbitration. We find this issue in favor of the defendants.

                                                   IV.

        The trial court decided this case based upon the pleadings, affidavits, and other papers filed
by the parties. The court did not hold an evidentiary hearing on the issue of whether the parties had
agreed to arbitrate any disputes arising out of their contractual relationship. Accordingly, the trial
court’s decision on this issue is in the nature of summary judgment and we will review it as such.

        Summary judgment is only appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Tenn. R. Civ. P. 56.04. In deciding this case, we “must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).
Since a motion for summary judgment presents a pure question of law, our review is de novo with
no presumption of correctness as to the trial court’s judgment. Gonzales v. Alman Constr. Co., 857
S.W.2d 42, 44 (Tenn. Ct. App. 1993). We must decide anew if summary judgment is appropriate.

                                                    V.

        The question for us is whether the facts show, without dispute, that there was a contract
between DLLP and the defendants that included an agreement to arbitrate; and, if so, whether
arbitration is required to be held in New York City according to the terms of that contract.

        In its brief, DLLP contends that it received a proposed written contract from the defendants
at the end of April, 1999. It is not disputed that the proposed contract contains an arbitration
provision in the following language:

                Any claim or dispute arising out of or relating to this agreement or the
                breach thereof shall be settled by arbitration in New York, New York
                in accordance with the rules and regulations then obtaining of the


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               American Arbitration Association governing three-member panels.
               The parties hereto agree to be bound by such award in such
               arbitration and judgment upon the award rendered by the arbitrators
               may be entered in any court having jurisdiction thereof.

Within the next two weeks, DLLP made some changes to the contract, most notably the change in
venue from Finley Stadium to Engel Stadium, signed the proposed contract that the defendants had
sent to it, and forwarded the two-page contract with the Engel Stadium addendum to the defendants.
DLLP asserts that its changes constituted a counteroffer. Approximately two months later, the
defendant ICM sent a letter to DLLP, which referenced an earlier conversation in which DLLP
agreed to wire a $50,000 payment to ICM. DLLP argues that this letter is proof that the defendants
never accepted DLLP’s counteroffer. Hence, so the argument goes, the three-page writing, a copy
of which is attached as an appendix to this opinion, is not the parties’ agreement.

        The position taken by DLLP on this appeal – that the writing incorporating the change to
Engel Stadium was never accepted by the defendants – is diametrically opposed to its position
asserted in the amended complaint. In that document, DLLP clearly alleges that it “notified
Defendants of the new venue, and Defendants approved the change of venue.” (Emphasis added).
The only fair reading of this allegation, when considered in the light of other facts that are not in
dispute, is that the three-page document attached to this opinion was signed by DLLP, mailed to the
defendants, and accepted by them. Under the circumstances of this case, it does not matter that it
was not signed by the defendants. See Carter v. Richards, C/A No. 116, 1990 WL 209330, at *3
(Tenn. Ct. App. W.S., filed Dec. 12, 1990) (“When a contract between two parties which is
contemplated to be signed by both is reduced to writing and signed by only one of them, but accepted
by the other, it becomes in contemplation of the law, a written binding contract on both.”) quoted
in Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343, 350 (Tenn. Ct. App.
1999).

        It is well-established that a party will not be permitted to take a position on appeal that is
contrary to a position that it took at trial. Clement v. Nichols, 186 Tenn. 235, 237, 209 S.W.2d 23,
24 (1948); Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 40 (Tenn. Ct. App. 1982). That is
precisely what DLLP is attempting to do in this case. It is clear, under Tennessee law, that DLLP
cannot reverse its trial position on this appeal. Id.

         The fact of the matter is that DLLP pursued inconsistent positions at trial and is continuing
to attempt to straddle these positions on appeal. Our analysis starts with the recognition that DLLP
cannot escape the fact that the addendum changing the venue to Engel Stadium is central to their
claim for relief against these defendants. This is obviously what prompted its assertion that the
addendum was “approved” by the defendants; but this assertion proves too much. This is because
the addendum is inextricably connected to the two-page document that its representative signed and
sent to the defendants. Simply stated, the addendum upon which DLLP relies is clearly an addendum
to the two-page contract originally proposed by the defendants. That signed document brings into



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play the arbitration agreement. Try as it might, DLLP cannot rely on the addendum and, at the same
time, disavow the agreement to arbitrate.

         DLLP attempts to make out a genuine issue of material fact. It claims that three separate
affidavits by one of the defendants’ witnesses reflect contradictory positions. In his initial affidavit
filed in the trial court, Terry Rhodes, an agent of the defendant ICM, attached an unsigned copy of
the first two pages of the three-page document attached as an appendix to this opinion. He asserted
that this was the agreement between the parties. In his second affidavit, he attached the three-page
signed agreement, including the addendum regarding Engel Stadium, and said that it reflected the
agreement of the parties. Even assuming these two affidavits1 contain conflicting statements, they
address a matter that is no longer material. The parties have moved beyond this point. This is
because DLLP does not dispute that it transmitted the attached signed three-page document to the
defendants; it only contends that its transmission constituted a counteroffer that was not accepted.
As we have previously noted, DLLP is precluded from taking this position. In any event, the only
material issue raised by DLLP pertaining to the arbitration provision is whether the three page
document in which it is found was accepted by the defendants. Any inconsistency in the Rhodes
affidavits is rendered immaterial by DLLP’s position. Hence, it has no bearing upon the issue of
summary judgment.

         As DLLP’s only basis for contending that there was no contract between the parties is
premised upon an unaccepted counteroffer, which we have now found to be without merit due to the
legal effect of the allegations of the amended complaint and the position taken by DLLP in the trial
court, we find that there was indeed a contract between DLLP and the defendants. Furthermore, we
find that this contract does contain an agreement to arbitrate any disputes in New York, New York.
Therefore, the trial court erred in ordering the parties to arbitrate in Chattanooga, Tennessee. “A
court is not at liberty to make a new contract for parties who have spoken for themselves.” Smithart
v. John Hancock Mut. Life Ins. Co., 167 Tenn. 513, 525, 71 S.W.2d 1059, 1063 (1934); see also
Jaffe v. Bolton, 817 S.W.2d 19, 25 (Tenn. Ct. App. 1991); Carrington v. W. A. Soefker & Son,
Inc., 624 S.W.2d 894, 897 (Tenn. Ct. App. 1981). Accordingly, we modify the trial court’s order
to reflect that the parties are to submit to arbitration in New York, New York, as contemplated by
their contract.

                                                             VI.

        The order of the trial court is affirmed as modified. This case is remanded for enforcement
of the trial court’s modified order, pursuant to applicable law. Costs on appeal are taxed to the
appellee, DLLP, L.L.C., dba Big Nine Productions.




         1
            In a third affidavit, Rhodes asserted that he attached the unsigned contract to the first affidavit because he was
then unable to find the agreement signed by DLLP ’s representative. When he found the signed three-page contract, he
attache d it to the se cond affidavit.

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      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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