                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                          FILED

                                         October 18, 1999




                                        Cecil Crowson, Jr.

                                       Appellate Court Clerk




JOHN DAVIS,                                 )
and wife CLAUDIA DAVIS,                     )        NO. 03A01-9812-CH-00418
d/b/a/ C & J ENTERPRISES,          )
                                            )
       Plaintiffs-Appellants                )
                                            )        Appeal as of Right From The
vs.                                         )        JOHNSON CO. CHANCERY COURT
                                            )
MICHAEL E. McINERNEY and                    )        HON. G. RICHARD JOHNSON
KOTZ AND SANGSTER, P.C.,                    )        CHANCELLOR
                                            )
       Defendants/Appellees.       )




For the Appellants:         For the Appellee                         For the Appellee
Arthur M. Fowler            Michael E. McInerney:                    Kotz & Sangster, P.C.:
McKinnon, Fowler, Fox       Michael McInerney, Pro Se                Rick J. Bearfield
& Taylor                                                             Suite 1, Wesley Plaza
130 East Market Street                                         2513 Wesley Street
Johnson City, TN 37604-5711                                    P. O. Box 4210 CRS
                                                                     Johnson City, TN 37602




REVERSED and REMANDED                                                              Swiney, J.




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                                              OPINION

                   This is an appeal from an Order of the Chancery Court for Johnson County granting

Defendants' Motion for Summary Judgment. Appellant raises the issue of whether the Trial Court erred

in granting summary judgment. Appellees contend the existence of a contract of guaranty is a question of

law for the Court, which the Court properly decided based on undisputed facts, and that the Trial Court

properly granted summary judgment. For the reasons herein stated, we reverse the judgment of the Trial

Court and remand the case to the Trial Court for further proceedings consistent with this Opinion.

                                              BACKGROUND

                   In the Fall of 1989, Appellants [Husband and Wife], doing business as C & J

Enterprises, purchased a franchise right to market long distance telephone service in North and South

Carolina and Northeast Tennessee from NCN Communications, Inc., a corporation owned by the Gurr

Group. They left their home in Florida and moved to Mountain City, Tennessee, to begin the new

business. In Spring 1990, the Attorney Generals of North Carolina and South Carolina issued cease and

desist orders against NCN which prohibited NCN and Appellants from marketing long distance service

in those states.

                   McInerney (Appellee), an attorney and principal (at that time) in the law firm of Kotz and

Sangster (Appellee), contacted Appellants on several occasions to discuss the regulatory problems NCN

was having.1 Appellants say he informed them "that he was representing the Gentry Group, Inc., which

was in the process of inserting millions of dollars into the NCN operation and would buy out the Gurr

Group." McInerney sent a proposed Amended Contract to Appellants, who initially refused to sign it

because of concern about Section 18, which provided that they would release, indemnify and hold NCN,

NCN's shareholders (the Gurr Group), and Gentry Group, Inc., free from and against any and all claims

arising or accruing prior to December 6, 1990, and from any claims which might thereafter accrue from

any circumstance in existence prior to December 6, 1990.



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                Appellants further allege that McInerney telephoned them on November 29, 1990, and

"implored" them to sign the Amended Contract. They contend he made a "personal guarantee to us of

$120,000.00 and 90 days," i.e., that the problems would be straightened out with the Attorney Generals

and they would be able to resume their franchise business within 90 days or they "would be protected" to

the extent of $120,000.00. He faxed them the Amended Contract to sign.                    On   November

30,1990, McInerney wrote a follow-up letter, on Kotz & Sangster, P.C. law firm letterhead, and faxed it

to them. On December 6, 1990, McInerney mailed the original of that letter to Appellants, with a cover

letter on law firm letterhead. Appellants say that, in reliance upon the November 30, 1990 letter with its

December 6, 1990, Kotz & Sangster cover letter, affirming the telephone discussion the night before,

they signed the Amended Contract. Because the language in these two documents is crucial to our

determination of whether Summary Judgment was proper in this case, we reproduce the documents

verbatim:

                Letter on Kotz & Sangster, P.C. letterhead, dated November 30, 1990,
                signed by Michael E. McInerney:

                Dear Mr. and Mrs. Davis:

                This letter will confirm our telephone conversation of November 29,
                1990, in regard to the Amendment to Marketing Franchise Contract (the
                 “Amendment”) which we forwarded to you via facsimile on that date.

                In that regard, enclosed are an original and two (2) copies of such
                Amendment which reflect the revisions we discussed concerning
                Paragraph 4 of the Amendment and Paragraph 12.B.iii.d. of the
                Marketing Franchise Contract (relating to waiver of the performance
                criteria), and Paragraph 5 of the Amendment and Paragraph 2.C.iii. of
                the Marketing Franchise Contract (relating to payment of audit costs).

                In addition, this will confirm that on behalf of NCN Communications,
                Inc., I have given you my assurance and guaranty that if our acquisition is
                completed, within ninety (90) days of the date thereof (intended to be
                December 6, 1990), by March 6, 1991, either North Carolina or South
                Carolina will both (1) be free of the restrictions preventing NCN
                Communications, Inc. from transacting business currently affecting both
                states; and (2) will be covered by a long distant carrier. In the event of a
                failure to satisfy this assurance, then you will be entitled to pursue your
                remedies for additional damages resulting from such failure, provided that
                such damages will be limited to $120,000.




                                                                                                             Page 3
                 Based upon the foregoing, this will confirm that you will execute the
                 enclosed Amendment to Marketing Franchise Contract and return the
                 same to me as soon as possible, and in any event, by December 6,
                 1990.

                 If you have any questions, please do not hesitate to contact us.

                         Sincerely,

                                                          /s/

                                                          Michael E. McInerney

                 Letter on Kotz & Sangster, P.C. letterhead, dated December 6, 1990,
                 signed by Michael E. McInerney:

                 Dear Mr. and Mrs. Davis:

                 Pursuant to our telephone conversation of December 5, 1990, enclosed
                 is the original of our firm’s letter to you dated November 30, 1990, along
                 with the enclosures mentioned therein, which was returned to us today by
                 Federal Express because it was unclaimed.

                 As we discussed, please execute the enclosed Amendment to Marketing
                 Franchise Contract and return the same to us for execution by NCN
                 Communications, Inc.

                 If you have any questions, please do not hesitate to contact us.

         Sincerely,

         /s/

         Michael E. McInerney


                 Gentry Group's acquisition of NCN was completed on Dec. 6, 1990. Neither North

Carolina or South Carolina ever allowed NCN or its franchisees, the Appellants, to conduct business

there.

                 In 1993, NCN filed a petition for reorganization in US Bankruptcy Court in the Eastern

District of Michigan. Appellants filed a Proof of Claim, asserting Unsecured Nonpriority Claims against

NCN for (1) "$120,000.00, letter attached, debt incurred 11/30/90"; and (2) “$430,000.00, debt

incurred 9/25/89 onward.” Appellant testified in the bankruptcy case that "our claim was against NCN."

On May 18, 1994, Appellants' claim for $120,000.00 in the bankruptcy case was allowed by that



                                                                                                          Page 4
Court, but they were unable to recover damages from the bankrupt NCN.              Six months later, on

September 12, 1994, Appellants filed this complaint against McInerney and his law firm. On September

8, 1998, the Trial Court granted Appellees' Motion for Summary Judgment.

                                           DISCUSSION

               Summary judgment is rendered in favor of a party upon a showing "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. 56.03. Since our review of the trial court's grant of summary judgment is purely a

question of law, our review is de novo and no presumption of correctness attaches to the trial court's

judgment. Eyring v. Fort Sanders Parkwest Med. Cen., 991 S.W.2d 230, 236 (Tenn. 1999). Thus,

on appeal, we must make a fresh determination concerning whether or not the requirements of Tenn. R.

Civ. P. 56 have been met. In doing so, we must consider the pleadings and the evidentiary materials in a

light most favorable to the motion's opponent, and we must draw all reasonable inferences in the

opponent's favor. Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).

               Summary judgment is appropriate where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56. The purpose of summary

judgment is to resolve controlling issues of law. Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn. 1993).

Summary judgment "is an efficient means to dispose of cases whose outcome depends solely

on the resolution of legal issues." Byrd v. Hall at 216. However, summary judgment is only appropriate

when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion.

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

               The Appellants argue that (1) there are disputed issues of material fact which preclude

the granting of a summary judgment; (2) that "[s]imply put, an attorney [McInerney] is charged with the

duty of good faith and honorable dealing on all occasions, Schoolfield v. Tennessee Bar Ass'n., 353

S.W.2d 401, 404 (Tenn. 1961); and (3) that:

               [f]inally, the November 30, 1990, letter from Defendant McInerney to
               Mr. and Mrs. Davis is not itself the guaranty, but only memorialized
               and confirmed a guaranty given the night before. The letter begins 'This


                                                                                                            Page 5
                letter will confirm our telephone conversation of November 29, 1990, in
                regard to the Amendment to Marketing Franchise Contract (the
                "Amendment") which we forwarded to you via facsimile on that date." In
                the telephone conversation, McInerney agreed to personally guarantee
                the obligations of NCN up to the amount of $120,000.00 if Appellants
                would sign the Amended Contract. The Appellants signed the
                Amendment based on that personal guaranty, and "the record is void of
                any denial that such a guaranty was made."

                Appellants argue that the representations made by McInerney, both individually and for

his law firm, are equivalent to those in Chaffin v. Gullett, 34 Tenn. 275, an 1854 Tennessee case

involving two mail carriers, Chaffin and Gullett, who delivered mail under contract with the US postal

services on horses with buggies. Chaffin quit the job and Gullett purchased Chaffin's horse and buggy,

for which he agreed to pay Chaffin with funds received on the postal service contract. Third parties then

assumed Chaffin's duties, and entered into a guaranty, that Gullett would perform and that Chaffin would

be held harmless if Gullett did not perform. Then Gullett quit delivering mail too, and never paid Chaffin

for the horse and buggy. Chaffin sued the third parties for the horse and buggy, under the guaranty. The

third parties responded that the guaranty did not apply to Gullet's payment to Chaffin for his horses and

coaches. The Trial Court held the third parties liable to Chaffin because that interpretation of the

guaranty was "eminently fallacious," since Chaffin would not have, "in effect, deprived himself, by

contract, of the very money which he was struggling to secure." The Court accepted parol evidence and

looked at the surrounding circumstances to interpret the guaranty.

                Appellants contend that in the case at bar, as in Chaffin, they would not have released

NCN had McInerney, individually, and his law firm, not guaranteed their damages for nonperformance

by NCN. Appellants argue that in both cases, the guaranty resulted in the defendants becoming sureties

for the performance of another and therefore they clearly became liable for damages as a result of the

failure of the assurance or guaranty. We think Chaffin is readily distinguishable because, in that case, the

existence of a guaranty was admitted, and only its scope was at issue. Here, the parties disagree as to

the nature of the document.

                Appellants also cite Creative Resource Management, Inc., v. Soskin, Tenn. Ct. App.




                                                                                                               Page 6
1998 No. 01A01-9808-CH-00016, filed November 25, 1998 at Nashville, no appl. perm. app. In

that case the Defendant, Barry Soskin, was president of Nashville Pro Hockey, LLC, which owned the

Nashville Nighthawks, a minor league professional hockey team, also a Defendant.                Nashville Pro

Hockey, LLC, contracted with the Plaintiff, Creative Resource Management, Inc., for Plaintiff to

provide employee leasing services for the Nighthawks. The contract provided in section XI(f): “In the

body of the contract the pronouns ‘we’ and ‘you’ refer to ‘CRM’ and the ‘client’ respectively.

        The contract further provided in paragraph VII(d):

                 By affixing my hand and seal to this agreement, I personally guarantee
                 any and all payments payable as represented and outlined in this
                 agreement including but not limited to payrolls, taxes, (state and federal),
                 insurance premiums, and all other fees aforementioned in paragraph VII.

                 Barry Soskin signed the contract for the “client” Nashville Pro Hockey, LLC. When

Nashville Pro Hockey, LLC failed owing CRM $29,626.41, CRM brought suit against Nashville Pro

Hockey, LLC and certain of its officers, including Barry Soskin. The Trial Court granted Soskin’s

motion for summary judgment, thereby holding that his signature on the contract was in a representative

capacity only and not in his individual capacity. On appeal, we reversed, finding that from the language

of the instrument itself, Barry Soskin was a guarantor and was liable on his guaranty. Appellants contend

the Appellees in this case made an equivalent promise. We cannot agree. We are unconvinced that the

phrase “. . . .on behalf of NCN Communications, Inc., I have given you my assurance and guaranty,” is

the equivalent of “. . . I personally guarantee any and all payments . . . .”

                 Appellee McInerney filed a pro se brief in this case but did not appear at oral argument,

personally or through counsel. In his brief, he says that "the existence or non-existence of the guaranty is

the gravamen of this lawsuit." However, he argues that the issue is one of law, not fact, citing Bailey v.

Brister, 353 S.W.2d 564 (Tenn. App. 1961).

                 In Bailey v. Brister, a lawyer, acting as counsel for the plaintiff in a lawsuit, wrote to the

Defendant concerning settlement of the case. There ensued a long course of communications by letters

between the lawyer and the Defendant which were then introduced as evidence at trial. The Chancellor




                                                                                                                  Page 7
submitted to the jury the issue of fact, "Did the parties through their counsel enter into a contract to settle

the case of James W. Brister vs. Virgil J. Bailey, et al., cause No. 60141 while said cause was pending in

the Court of Appeals?" The jury answered, "Yes." This Court reversed the decree of the lower court

and dismissed plaintiff's complaint, finding that

                 "the cause did not involve an issue of fact to be decided by the jury, but
                 only an issue of law, which should have been decided by the Chancellor
                 in favor of defendant . . .[c]onstruction of these documents was the
                 function of the chancellor in the lower court, and not of the jury. On
                 appeal, it becomes the function of this court."

                 It is well settled that the interpretation of a written agreement presents a question of law

and not of fact. Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn. App. 1992); APAC-Tennessee, Inc.

v. J.M. Humphries Const. Co., 732 S.W.2d 601, 604 (Tenn. App. 1986). Ascertainment of the

intention of the parties to a written contract is a question of law, rather than a question of fact. Hamblen

County v. City of Morristown, 656 S.W.2d 331, 335-36 (Tenn. 1983). If a contract is plain and

unambiguous, the meaning thereof is a question of law for the court. Warren v. Metro, 955 S.W.2d

618, 623 (Tenn. App. 1997).

                 McInerney says Appellants have admitted that the November 30, 1990 letter is not a

guaranty by McInerney or Kotz and Sangster, and have claimed that the real guaranty was given over the

phone. The parol evidence rule prohibits testimony in contradiction of a written, unambiguous guaranty,

citing Union Oil Co. of Calif. v. Service Oil, Inc., 766 S.W.2d 224 (6th Cir. 1985). Parol evidence

cannot be used to contradict or alter the terms of a written contract that is complete and unambiguous on

its face. See Jones v. Books, 696 S.W.2d 886 (Tenn. 1985); Airline Constr., Inc. v. Barr, 807

S.W.2d 247, 259 (Tenn. App. 1990). However, when the writing is not plain and unambiguous and is

such as to require the aid of parole evidence and the parole evidence is conflicting or such as admits of

more than one conclusion, it is not error to submit the doubtful parts under proper instructions to the jury.

 Jackson v. Miller, 776 S.W.2d 115, 118 (Tenn. App. 1989).

                 Appellee Kotz & Sangster, P.C., argues that if the November 30, 1990 letter is a

guaranty, and is not the guaranty of NCN, then it is the guaranty of McInerney individually and not that


                                                                                                                  Page 8
of Kotz and Sangster, because McInerney lacked actual, apparent or ostensible authority to bind the law

firm. Kotz and Sangster did nothing which clothed McInerney with actual or apparent authority to bind

the law firm. Plaintiffs make no claim that they have ever communicated with the law firm. Plaintiffs have

steadfastly insisted that they were looking to McInerney for his personal guaranty.

                A contract is ambiguous “when it is of uncertain meaning and may fairly be understood in

more ways than one.” Terry v. Ober Gatlinburg, Inc., No. 03A01-9701-CV-00026 filed February

3, 1998 at Knoxville, perm. app. denied July 13, 1998, citing Empress Health and Beauty Spa Inc.

v. Turner, 503 S.W.2d 188, 190-191 (Tenn. 1973). In this case, we think the facts and legal

conclusions drawn from the facts, including the documents, reasonably permit more than one conclusion.

We think the phrase “. . . on behalf of NCN Communications, Inc., I have given you my assurance and

guarantee . . .” is ambiguous, as it could reasonably be interpreted as a guaranty by NCN and/or by

McInerney. As the key phrase in the document may be fairly understood in more ways than one, it is of

uncertain meaning and ambiguous. This being so, we cannot say that the facts and legal conclusions to be

drawn from the facts before us reasonably permit only one conclusion. A review of Appellees’ Rule

56.03 listing of undisputed material facts and Appellants’ response shows disputes as to material facts.

Given the dispute as to material facts and the ambiguity of the documents, summary judgment is not

appropriate. Based upon the record before this Court, the facts and legal conclusions to be drawn from

those facts do not reasonably permit only one conclusion. It is our opinion that Appellees, based upon

the record before us, have not met their burden under Rule 56 of the Tennessee Rules of Civil

Procedure.

                                           CONCLUSION

                The judgment of the Trial Court is reversed and this cause is remanded to the Trial Court

for further proceedings, consistent with this Opinion. The costs on appeal are assessed against the

Appellees.




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                                      _________________________________________
                                      D. MICHAEL SWINEY, J.




CONCUR:




___________________________________
HOUSTON M. GODDARD, P.J.




___________________________________
HERSCHEL P. FRANKS, J.




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