GEORGE M. BOND,                 )    Rutherford County Circuit
                                )    No. 37459
          Plaintiff/Appellee    )
                                )
VS.                             )    Appeal No.
                                )    01A01-9704-CV-00149
COM-THER, INC.,                 )
                                )
          Defendant/Appellant   )
                                                    FILED
                                                     October 1, 1997

              IN THE COURT OF APPEALS OF TENNESSEE W. Crowson
                                                Cecil
                   MIDDLE SECTION AT NASHVILLE Appellate Court Clerk


       APPEAL FROM THE RUTHERFORD COUNTY CIRCUIT COURT
                 AT MURFREESBORO, TENNESSEE


                    HONORABLE DON R. ASH, JUDGE

Ryan A. Kurtz
Trabue, Sturdivant & DeWitt
2500 Nashville City Center
511 Union Street
Nashville, TN 37219-1738
and
William P. Suriano
280 Shenstone Road
Riverside, Illinois 60546
ATTORNEYS FOR DEFENDANT/APPELLANT

J. Ross Pepper
222 Second Avenue North
Suite 360-M
Nashville, TN 37201
ATTORNEY FOR PLAINTIFF/APPELLEE


                       AFFIRMED AND REMANDED



                                WILLIAM H. INMAN, SENIOR JUDGE



CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
BEN H. CANTRELL, JUDGE
GEORGE M. BOND,                            )       Rutherford County Circuit
                                           )       No. 37459
              Plaintiff/Appellee           )
                                           )
VS.                                        )       Appeal No.
                                           )       01A01-9704-CV-00149
COM-THER, INC.,                            )
                                           )
              Defendant/Appellant          )




                                        OPINION


       The plaintiff and the defendant entered into a “Contract Services Agreement”

in 1994 which provided, as pertinent to this case, that either party might terminate it

at any time by giving 30 days notice to the other. On May 19, 1995, the defendant

informed the plaintiff by letter that

       “ . . . we are discontinuing our relationship with you for Physical
       Therapy services, effective May 19, 1995.

       Normal procedure warrants a 30 day notice, however, in light of
       numerous complaints regarding your services, we feel it is necessary to
       cease services immediately.”

       This suit was filed in the General Sessions Court to recover compensation for

30 days. The plaintiff insists that because he was entitled to 30 days notice of

termination of the contract, he is entitled to recover compensation during this period

in accordance with his earnings history.

       The case was heard de novo in the Circuit Court with judgment being

rendered for the plaintiff in accordance with his evidence that he would have earned

$3,240.00 during the 30 day notice period.

       This is a non-jury case and our review is de novo on the record accompanied

by a presumption of the correctness of the findings of fact of the trial court. TENN. R.

APP. P., RULE 13(d).

       The plaintiff testified that he independently contracted with the defendant in

1980 to provide hands-on physical therapy to patients referred to him by the

defendant, for which he would be paid $45.00 per visit. When asked how many

visits he made each week, he replied:

       “It varied. I would say anywhere from - really an average of say 18 at

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       the time that they terminated the contract, but up to around 40 visits per
       week.”

       The contract was terminated on May 19, 1995 without notice, as we have

seen. He testified that for the month immediately preceding May 19, 1995 he

averaged 18 visits per week, and for the period from May 21 through June 17, 1995

he would have made 72 visits had the defendant not terminated the contract.

       The pleading by defendant was ore tenus, but it developed during the trial that

its defense to the claim was the alleged poor performance of the plaintiff in rendering

therapy to patients referred to the defendant by Century Health Services [hereafter

“Century”]. An official of the defendant testified that Century directed his company

not to assign the plaintiff any Century patients. Since Century furnished all of the

defendant’s patients, this action would have left the plaintiff with nothing to do;

hence, the early termination.

       As the trial judge observed, the contract, prepared by the defendant, is silent

on the precise issue. He stated

       “You [the defendant] sent him a letter cold, which violated the contract.
       Any breach, even if he did all those things [i.e., negligently treated
       patients] any breach is not addressed in this contract. It probably should
       have been. I think if you are going to provide medical services they ought
       to be high quality and people shouldn’t be abused, but that is not in there
       . . .”

       Whether the plaintiff breached the contract is not relevant, given the posture

of the case, and the plaintiff was clearly entitled to 30 days notice. Had he been

given such notice, the defendant might have, with impunity, simply refused to assign

patients to him; but in direct, admitted defiance of the contract the defendant chose

not to give the required notice. Consequently the courts must enforce the contract

as written. Scandlyn v. McDill Columbus Corp., 895 S.W.2d 342 (Tenn. App. 1994);

Coble Systems Inc. v. Gifford Co., 627 S.W.2d 359 (Tenn. App. 1981).

       The argument of the appellant that the plaintiff cannot recover because no

patients could have been assigned to him in view of Century’s directive is unavailing

under the contract which makes no reference to Century, and in any event does not

provide that the defendant may disregard the notice requirement.

       The trial judge chose to accredit the testimony of the plaintiff that he could



                                            3
have made 72 visits during the notice period. The issue largely turns upon the

credibility of the witnesses, a determination within the province of the trial judge.

Walls v. Magnolia Truck Lines, 622 S.W.2d 526 (Tenn. 1981). We cannot find that

the evidence preponderates against the judgment.

       The appellee was awarded a limited attorney fee of $371.08. He complains of

the minimal nature of this fee and presents it for review, insisting that he is entitled to

an additur including a fee for services in this Court.

       The contractual provisions respecting attorney fees is somewhat unusual. It

provides that the defendant agrees to indemnify and hold the plaintiff harmless from

all losses, expenses, fees, including attorney fees, costs and judgments that may be

asserted against the plaintiff that result from the acts or omissions of the defendant.

Given the lack of evidence on the issue, we cannot find an abuse of discretion on the

part of the trial judge in limiting the amount of the award of attorney fees.

       In light of the obvious intent of the parties however, we find that the plaintiff is

entitled to his reasonable attorney fees for this appeal, and the case is remanded for

this purpose.

       Affirmed, with costs taxed to the appellant.



                                           ___________________________________
                                           William H. Inman, Senior Judge

CONCUR:



______________________________________
Henry F. Todd, Presiding Judge, Middle Section



______________________________________
Ben H. Cantrell, Judge




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