                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     June 19, 2001 Session

  FRANK D. DONOVAN v. NATIONAL COMMERCE BANK SERVICES,
  INC., NATIONAL COMMERCE BANCORPORATION, and NATIONAL
                    BANK OF COMMERCE

                    An Appeal from the Chancery Court for Shelby County
                       No. 99-0414-3 D.J. Alissandratos, Chancellor



                    No. W2000-03064-COA-R3-CV - Filed March 15, 2002


This is a breach of contract case. The defendant bank hired the plaintiff as a consultant to contact
supermarkets about placing branch banks in their stores. In August 1988, the parties signed a
written consulting contract which expired by its own terms in November 1988. In that contract, the
plaintiff was to receive a salary plus $2,000 for each branch bank placed in a store as a result of his
efforts. This contract expired, but the plaintiff continued to work for the bank for about ten years
with no other written agreement. The plaintiff was never paid the $2,000-per-store bonus. In 1990,
the plaintiff asked the bank to pay the $2,000-per-store bonus, and this request was ignored. The
plaintiff’s employment was terminated in 1998. In May 1999, the plaintiff sued the bank for breach
of contract, claiming that they owed him the $2,000-per-store bonus under the original contract. The
trial court granted the bank summary judgment based on the applicable statute of limitations. The
plaintiff now appeals. We affirm, finding that the cause of action accrued, at the latest, in 1990 when
the plaintiff requested the bonus and his request was ignored.

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

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

Lee L. Piovarcy and James L. Coggin, Memphis, Tennessee, for the appellant, Frank D.
Donovan.

Frank J. Glankler, Jr., and C. Barry Ward, Glankler Brown, PLLC, Memphis, Tennessee for the
Appellees, National Commerce Bank Services, Inc., National Commerce Bancorporation, and
National Bank of Commerce.
                                                       OPINION

        This is a breach of contract case. In 1985, defendant/appellee National Bank of Commerce
(“NBC”) began placing bank branches in supermarkets. To this end, NBC hired plaintiff/appellant
Frank D. Donovan (“Donovan”), who had thirty-five years of experience and many contacts in the
supermarket business, to contact supermarket personnel about placing bank branches in their stores.
On August 10, 1988, the parties entered into an agreement providing that NBC would pay Donovan
a salary of $3,000 per month plus a $2,000 bonus for each store in which a bank branch was placed
as a result of his efforts. The agreement stated that the arrangement was for a trial period to end on
November 30, 1988.

       During the trial period, Donovan contacted supermarkets on behalf of NBC, and NBC paid
him the $3,000 per month salary. No bank branches were placed in stores during the trial period.

       At the end of the trial period, no new agreement was negotiated. Nevertheless, Donovan
continued to perform consulting work. During Donovan’s employment, hundreds of bank branches
were placed in supermarkets. NBC paid Donovan a monthly salary that increased from $3,000 per
month in 1988 to $5,500 per month in 1998. In addition, in some years, at NBC’s discretion, NBC
paid Donovan monthly bonuses. These bonuses totaled $43,500. However, NBC never paid
Donovan the $2,000-per-store bonus for supermarket branches set forth in the original trial period
agreement.

       On December 12, 1990, Donovan sent a letter to Doug W. Ferris (“Ferris”), a senior vice-
president for NBC, requesting the $2,000-per-store bonus for 1990. The letter states:

         In 1990, we saw success in establishing banks in supermarkets that were due to my
         work with NCBC. In the future, additional banks will be opened in supermarkets due
         to my work. Our agreement is for payment of $2,000.00 per supermarket bank. I
         would appreciate payment for 1990 at this time.

Donovan never received a response from NBC, and whenever he attempted to discuss the $2,000-
per-store issue with Ferris, Ferris ignored him and would not discuss the subject. Donovan’s
employment terminated in October 1998.

       On May 7, 1999, Donovan filed this action against NBC and related entities, National
Commerce Bank Services, Inc., and National Commerce Bancorporation (collectively “NBC” or
“defendants”),1 for breach of contract, claiming that the defendants failed to pay him the $2,000-per-




         1
            The National Commerce Bancorp owns the National Bank of Comm erce. National Commerce Banking
Serv ices, Inc., an affiliate of NB C, w as created a s an indep end ent busine ss eng aged in the licensing and sublicensing
of space in grocery stores and in consulting with other ban ks as to how to implem ent in-store program s.

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store bonus provided in the original consulting agreement.2 After the parties conducted discovery,
NBC filed a motion for summary judgment. On October 2, 2000, the trial court held a hearing and
orally granted summary judgment in favor of NBC, finding that Donovan’s claim was barred by the
applicable six-year statute of limitations. On October 23, 2000, the trial court issued a written order
consistent with the oral ruling. From this order, Donovan now appeals.

        On appeal, Donovan argues that the trial court erred in determining that his lawsuit was
barred by the statute of limitations. He claims that his services were continuous and rendered under
one continuing contract, and that therefore his cause of action for breach of contract accrued when
his services were completed or terminated. See Murray v. Grissim, 290 S.W.2d 888, 892 (Tenn. Ct.
App. 1956). Consequently, Donovan argues, because suit was filed within six years of the date that
his services were terminated, his suit was timely. Furthermore, Donovan contends that the trial court
erred in granting summary judgment because he submitted sufficient evidence to create a genuine
issue of material fact regarding whether the terms of the original contract were still in effect.

       We review the trial court’s grant of summary judgment de novo with no presumption of
correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997) (quoting Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997)). Summary judgment is appropriate where “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. 56.03. We must view the evidence in a light most
favorable to the nonmoving party, giving that party the benefit of all reasonable inferences. Warren,
954 S.W.2d at 723.

        The trial court below found that the material facts were undisputed, and that NBC was
entitled to a judgment as a matter of law on those facts. Specifically, the trial court found that,
subsequent to the expiration of the written trial period contract, “there was some contract between
these parties” because the employment relationship continued on for almost ten years. Considering
the evidence in a light most favorable to Donovan, the trial court assumed that the $2,000-per-store
provision was included as a part of the modified agreement. The trial court held, however, that
Donovan knew at the time he sent the letter to Ferris seeking payment of the $2,000-per-store bonus,
or approximately December 12, 1990, or shortly thereafter, that NBC did not intend to pay him the
$2,000-per-store bonus because of its failure to respond to Donovan’s demand. Nevertheless,
Donovan continued to work for NBC and accepted the agreed-upon salary and bonuses without
insisting on the $2,000-per-store payments. Under these circumstances, where suit was filed over
eight years after the December 1990 letter, the trial court held that Donovan’s action against NBC
was barred by the applicable six-year statute of limitations. See Tenn. Code Ann. § 28-3-109(a)(3)
(providing that actions on contracts must commence “within six (6) years after the cause of action
accrued”).



       2
           Donovan included a quantum meruit claim in his complaint, but that claim has since been abandoned.

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        Donovan argues on appeal that his contract with NBC was “continuing,” and that, therefore,
his cause of action did not begin to accrue until his contract terminated. To support his position,
Donovan relies on Murray v. Grissim, 290 S.W.2d 888 (Tenn. Ct. App. 1956). In Murray, the
plaintiff agreed to manage the defendant’s farm. The plaintiff received no remuneration for
managing the farm. Over eleven years later, the defendant sold the farm, and the plaintiff’s services
were no longer needed. The plaintiff then sought to be paid a reasonable amount for his past years
of work managing the farm. In rejecting the argument that the plaintiff’s claim was barred by the
six-year statute of limitations, the court found:

       Where services are continuously rendered over an extended period of time under an
       express or implied contract which does not fix the term of employment nor the time
       when compensation shall be payable, the contract is entire and the employee’s right
       of action accrues and the statute of limitations begins to run when, and only when,
       the services are fully performed or the employment otherwise terminated.

Murray, 290 S.W.2d at 893 (emphasis added) (quoting In re: Swanson’s Estate, 42 N.W.2d 228,
230 (S.D. 1950)); see also In re: Estate of McClanahan, 471 S.W.2d 555, 558 (Tenn. Ct. App.
1971).

        The principle set forth in Murray, however, is applicable “where the employee is not to be
paid de die in diem [from day to day], but at the conclusion of the job, or of any one of several jobs.”
Murray, 290 S.W.2d at 893. The case sub judice involves no such arrangement. Rather, when
viewing the evidence in a light most favorable to Donovan, he remained employed under a
continuation of the written trial period agreement, which provided for monthly payment of $2,000-
per-store bonus. There is no evidence that Donovan was to be paid upon the termination of his
duties.

        A breach of contract action accrues at the time of the breach, or “when the acts and conduct
of one party shows [sic] an intention to no longer be bound by the contract.” Greene v. THGC, Inc.,
915 S.W.2d 809, 810 (Tenn. Ct. App. 1995). Thus, assuming that the $2,000-per-store bonus
provision was applicable to Donovan’s employment beyond the trial period, NBC breached that
agreement at the latest in December 1990 when it refused to honor Donovan’s demand for payment
under that provision. Clearly the six-year statute of limitations is applicable. See Tenn. Code Ann.
§ 28-3-106(a)(3). Donovan filed his action more than eight years after it was apparent that NBC did
not intend to pay the $2,000-per-store bonus; consequently, it was untimely.

        Donovan also argues on appeal that summary judgment was inappropriate because a genuine
issue of material fact existed as to whether the $2,000-per-store bonus was applicable to Donovan’s
continued employment. Our holding on the statute of limitations assumes that the $2,000-per-store
bonus was continued beyond the trial period; therefore, this issue is pretermitted. Thus, the trial
court did not err in granting summary judgment to NBC.



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       Accordingly, the decision of the trial court is affirmed. Costs are taxed to the appellant,
Frank D. Donovan, and his surety, for which execution may issue if necessary.




                                                     ___________________________________
                                                     HOLLY K. LILLARD, JUDGE




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