                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                         March 15, 2005 Session

   NATIONAL BANK OF COMMERCE v. UNIVERSAL TRANSACTION
                    CONSULTANTS, INC.

                     Direct Appeal from the Chancery Court for Shelby County
                         No. CH-00-1278-2    Arnold B. Goldin, Chancellor



                         No. W2004-01590-COA-R3-CV - Filed June 1, 2005


Plaintiff National Bank of Commerce filed a declaratory judgment action seeking a declaration that
its agreement with Defendant Universal Transaction Consultants, Inc. was null and void for
Defendant’s failure to perform a condition precedent. Defendant counter-claimed for breach of
contract and tortious interference with contract. The trial court determined that Universal
Transaction Consultants had failed to prove damages and dismissed the claims of both parties. We
affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and
                                        Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Everett B. Gibson and Andrew R. Carr, Jr., Memphis, Tennessee, for the appellant, Universal
Transaction Consultants, Inc.

Lee J. Chase, III, Larry H. Montgomery, and Jeremy G. Alpert, Memphis, Tennessee, for the
appellee, National Bank of Commerce.

                                       MEMORANDUM OPINION1



       1
           Rule 10 of the Tennessee Court of Appeals provides:

                This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       "MEMORANDUM O PINION", shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
        The subject of this lawsuit is a March 1998 merchant marketing and services contract (“the
contract”) entered into by Universal Transaction Consultants, Inc. (“UTC”), an independent sales
organization (“ISO”)2, and the National Bank of Commerce (“NBC”). In response to a demand letter
from UTC, on June 29, 2000, NBC filed a declaratory judgment action in the Shelby County
Chancery Court seeking a declaration that the contract was invalid and unenforceable due to UTC’s
failure to perform the condition precedent of registering as an Independent Service Provider or
Member Service Provider. In August 2002, NBC amended its complaint to add, in the alternative,
claims for breach of contract and procurement of breach of merchant contracts. UTC answered in
September 2001, denying NBC’s claims and counter-claiming for damages arising from breach of
contract and tortious interference with contracts.

        It is undisputed that the contract included the requirement that UTC be registered with credit
card associations. Paragraph 2.2 of the contract provided:

                 The validity and enforceability of this Agreement are contingent upon both
         (i) ISO/MSP’s being accepted for registration as an Independent Service Provider or
         Member Service Provider by the Card Associations,3 and (ii) the acceptance of this
         Agreement by both Card Associations.

In its counter-claim, however, UTC asserted that it was NBC’s duty to register UTC with the credit
card associations and that NBC failed to perform this duty despite repeated requests by UTC. UTC
further asserted NBC failed to perform “even the most fundamental obligations” under the contract,
including monthly reporting and payment obligations.

        After nearly three years of protracted discovery, the production of tens of thousands of
documents, and a week long trial, the parties each moved for dismissal of the other’s claims. On
June 10, 2004, the trial court granted both motions. UTC now appeals dismissal of its action. We
affirm.

                                                    Issue Presented

       In its brief to this Court, UTC failed to include a statement of the issues. At oral argument,
however, the parties agreed that the issue presented for our review is whether the trial court erred by
determining that UTC had failed to prove damages.




         2
          An ISO is an entity that brings a portfolio of merchants to a bank for participation in the bank’s credit card
program. The bank charges the merchants a few percentage points for the merchants’ credit card transactions, deducts
the bank’s income and expenses, issues a monthly statement to the ISO, and pays the ISO a balance.


         3
             Paragraph 1.04 of the contract defines “card associations” as Visa U.S.A., Inc. or M asterCard International,
Inc.

                                                            -2-
                                              Analysis

        In its brief to this Court, UTC reiterates the claims made in its counter-claim that NBC
breached the 1998 contract and tortiously interfered with UTC’s relationships with its sales agents.
According to UTC, by December 1998, UTC had delivered several hundred accounts to NBC but,
from the beginning of the relationship, NBC failed to report to or pay UTC in a timely fashion. UTC
further asserts that, as a result of NBC’s actions, UTC’s long-standing relationship with at least one
major client was ruined and its relationships with sales agents severely impaired or ruined. It
contends that, in early 1999, UTC began to move accounts from NBC to Benchmark Bank. It
submits NBC initially agreed UTC could move the accounts, and then reversed course and threatened
that no moved account would be deactivated from NBC’s billing system. UTC asserts NBC stopped
paying anything to UTC in November or December 1999. It contends that NBC simply appropriated
accounts provided by UTC, and that it entered into secret agreements with UTC sales agents whereby
the agents sent accounts directly to NBC. UTC asserts that, as a result of NBC’s breach of contract
and intentional interference, UTC lost virtually all of its NBC merchant portfolio, at least two of its
principal sales agents, and hundreds of accounts that went directly to NBC rather than through UTC
as agreed.

        NBC, on the other hand, asserts that UTC began doing business with Benchmark Bank
because NBC refused to enter the pornography credit card transaction business, a business from
which UTC anticipated considerable profit. It alleges that, in March 1999, UTC terminated its
relationship with NBC. NBC asserts UTC made the business decision to leave the merchants at
NBC and focus on the pornography venture with Benchmark Bank, and that UTC realized a
considerable increase in revenue from that business.

       As NBC points out, UTC has failed to include a statement of the issues in its brief to this
Court as is required by Rule 27(a)(4) of the Tennessee Rules of Appellate Procedure. We may
consider an issue waived where it is argued in the brief but not designated as an issue. Childress v.
Union Realty Co., Ltd., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002). However, because the parties
agreed at oral argument that the issue on appeal is whether the trial court erred in determining that
UTC had failed to prove damages, we will consider this issue.

       UTC’s brief fails to direct us to any evidence in the record of proof of an amount of damages.
Like the trial court, we have not seen a number that UTC can point to that indicates an amount of
damages. As the trial court stated:

       Not once . . . have we seen a number that you can point to with clarity, not
       speculative, not mathematically to be created at some future moment[,] where you
       know what [the] damages are. It’s the burden of the Counter Plaintiff to prove that.
       They have just not done so.

               ....



                                                 -3-
               . . . . I don’t believe the [c]ourt has any choice, without finding that proof in
       the record, but to dismiss the claim on the issue of damages.

        This Court does not have a duty to minutely search a voluminous record in order to verify
claims made in a party’s brief. Schoen v. J.C. Bradford & Co., 642 S.W.2d 420, 427 (Tenn. Ct. App.
1982). The trial record before us in this case consists of a six volume technical record, an eleven
volume transcript of evidence, ten depositions, and two-hundred fifty-six exhibits. However, we find
no reference to or proof of a specific damage amount. Accordingly, we agree with the trial court that
UTC has failed to prove damages.

                                               Holding

        In light of the foregoing, the judgment of the trial court is affirmed in all respects. Costs of
this appeal are taxed to the Appellant, Universal Transaction Consultants, Inc., and its surety, for
which execution may issue if necessary.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




                                                  -4-
