Apollo Hair Systems of Nashville v. First Lady International Corporation, d/b/a New Image ( 2005 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                    NOVEMBER 2, 2004 Session
    
             APOLLO HAIR SYSTEMS OF NASHVILLE v. FIRST LADY
              INTERNATIONAL CORPORATION, d/b/a NEW IMAGE
    
                    Direct Appeal from the Chancery Court for Davidson County
                          No. 02-54-I Irvin H. Kilcrease, Jr., Chancellor
    
    
    
                        No. M2003-02322-COA-R3-CV - Filed March 29, 2005
    
    
    This case involves a contract dispute between a retail seller and manufacturer of hair replacement
    products. The parties entered into an exclusive dealing contract, whereby the manufacturer agreed
    to sell four models of hair replacement units exclusively to the retailer within a geographically
    defined area of Tennessee. In return, the retailer agreed to purchase all hair replacement units from
    the manufacturer and pay a $10.00 premium for the units purchased. The manufacturer subsequently
    sold hair replacement units to a competitor of the retailer in Tennessee. The retailer filed a
    complaint against the manufacturer for inducement of breach of contract, pursuant to section 47-50-
    109 of the Tennessee Code, and breach of contract. The manufacturer moved for summary
    judgment, and the trial court granted the motion as to both causes of action alleged in the complaint.
    We affirm.
    
    
        Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
    
    ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
    M. KIRBY , J., joined.
    
    C. Edward Fowlkes, Nashville, TN; David A. Shaw, Seattle, WA, for Appellant
    
    Andrée s. Blumstein, Mark T. Smith, Nashville, TN, for Appellee
                                                         OPINION
    
                                                               I.
                             FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    
            This appeal involves a contractual dispute between Apollo Hair Systems of Nashville
    (“Apollo” or “Appellant”) and First Lady International Corporation, d/b/a New Image (“New Image”
    or “Appellee”). Apollo operates a retail sales business in the hair replacement products industry.
    New Image is a manufacturer/distributor of hair replacement products. On August 24, 1999, Apollo
    and New Image entered into an exclusive dealing contract. The record does not contain a copy of
    the contract entered into between Apollo and New Image, however, we are able to glean from the
    record its basic terms. Pursuant to the terms of the contract, New Image agreed to sell exclusively
    to Apollo, within a defined geographical area in Tennessee, four hair replacement models. In turn,
    Apollo agreed to purchase all of their hair replacement units from New Image and pay a $10.00
    premium on the units purchased from New Image.
    
            In 2001, the president of Apollo, William O’Brien (“Mr. O’Brien”), learned that New Image
    sold twenty-six hair replacement units, the same models that were subject to the agreement between
    the parties, to competitors of Apollo in Tennessee. Mr. O’Brien notified the president of New Image
    at the time, Tony Sciara (“Mr. Sciara”), that Apollo was terminating the contract and would no
    longer purchase hair replacement products from New Image as a result of the twenty-six sales to
    competitors of Apollo.
    
            On January 7, 2002, Apollo filed a complaint in the Chancery Court of Davidson County,
    Tennessee, against New Image alleging breach of contract and inducement of breach of contract
    pursuant to section 47-50-109 of the Tennessee Code.1 Apollo’s complaint alleged that, as a result
    of the twenty-six sales of hair replacement units by New Image to competitors, it suffered lost
    profits. On April 11, 2002, New Image filed an answer admitting to the twenty-six sales of hair
    replacement products to competitors of Apollo in Tennessee, but New Image claimed the sales were
    inadvertent. In addition, New Image filed a counterclaim against Apollo alleging breach of contract
    in that, subsequent to the twenty-six sales by New Image, Apollo purchased hair replacement
    products from competitors of New Image and failed to pay the $10.00 premium in violation of the
    parties’ exclusivity agreement.
    
            Following extensive discovery, New Image, on April 15, 2003, filed a motion with the trial
    court seeking a dismissal of Apollo’s complaint pursuant to Rule 12.02(6) of the Tennessee Rules
    of Civil Procedure and for summary judgment pursuant to Rule 56 of the Tennessee Rules of Civil
    Procedure. The motion alleged that, with respect to Apollo’s inducement of breach of contract
    claim, Apollo failed to state a cause of action because Apollo did not allege that New Image’s
    
    
             1
               Apollo subsequently filed an amended complaint on February 6, 2002, which is identical in all respects to the
    original complaint with the exception of the identity of the Appellee. In the amended complaint Apollo merely identified
    Mr. Sciara as the president of New Image for purposes of service of process.
    
                                                              -2-
    conduct resulted in a breach of contract between Apollo and a third party. In fact, Apollo’s
    complaint only alleged a breach of the contract between Apollo and New Image. As for the breach
    of contract claim, New Image alleged that Apollo could not establish that the breach was material
    or establish damages for lost profits with sufficient certainty.
    
            On May 16, 2003, Apollo filed a response in opposition to New Image’s motion. In their
    response, Apollo referenced the deposition testimony of numerous witnesses, but, regarding
    damages, only referenced Mr. O’Brien’s deposition testimony to the effect that Apollo received
    “$1,000.00 to $1,500.00 per unit for hair replacements.” In addition, the response filed by Apollo
    referenced, for the first time, that Mr. O’Brien had to purchase 106 hair replacement units from other
    vendors due to New Image’s inability to supply the products needed. Our review of the record
    reveals no further affidavits or exhibits attached to Apollo’s response. In fact, New Image filed a
    counter-response alleging the inadequacy of Apollo’s response and contesting the use of certain
    deposition testimony by Apollo as inadmissible hearsay.
    
            The trial court conducted a hearing on New Image’s motion on May 23, 2003. The record
    does not contain a transcript of this hearing. On June 16, 2003, the trial court entered an order
    granting New Image’s motion. The order dismissed Apollo’s claims for inducement of breach of
    contract and breach of contract, and the trial court also granted summary judgment to New Image
    on both causes of action.2 Apollo subsequently filed a motion for relief from the final judgment or,
    in the alternative, for a new trial, which the trial court denied. Apollo has filed an appeal to this
    Court presenting the following issues for our review:
    
    I.       Whether the trial court erred in entering summary judgment in favor of the Appellee
             regarding the inducement of breach of contract claim; and
    II.      Whether the trial court erred in entering summary judgment in favor of the Appellee
             regarding the breach of contract claim.
    
    
    
    
             2
               W hile not raised by either party as an issue on appeal, we are cognizant of the fact that the record contains
    no order specifically addressing the disposition of New Image’s counterclaim for breach of contract. The final order
    issued by the trial court provides:
    
                       IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the above
                       claims being all of Plaintiff’s claims and causes of action in this matter, said claims
                       and causes of action are hereby dismissed with prejudice. Costs are taxed to
                       Plaintiff. The Court determines that there is no just reason for delay and directs that
                       this is a final judgment pursuant to TRP [sic] 54.02.
    
    Generally, “if multiple . . . claims are involved in an action, any order that adjudicates fewer than all the claims . . . is
    not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the
    claims, rights, and liabilities of all parties.” Tenn. R. App. P. 3(a) (2003). This statement in the trial court’s order is
    sufficient to create an appealable final judgment to this Court. See Tenn. R. Civ. P. 54.02 (2003); Fox v. Fox, 657
    S.W .2d 747, 749 (Tenn. 1983).
    
                                                                -3-
    For the reasons set forth herein, we affirm the trial court’s grant of summary judgment to Appellee,
    New Image.
    
                                                     II.
                                         STANDARD OF REVIEW
    
           When reviewing a trial court’s grant of summary judgment to a party, we are bound by the
    following standard of review:
    
                           An appellate court reviews a grant of summary judgment de
                   novo with no presumption that the trial court’s conclusions were
                   correct. See Mooney v. Sneed, 
    30 S.W.3d 304
    , 306 (Tenn. 2000).
                   Summary judgment is appropriate only when the moving party
                   demonstrates that there are no genuine issues of material fact and that
                   he or she is entitled to judgment as a matter of law. Tenn. R. Civ. P.
                   56.04; See also Webber v. State Farm Mut. Auto Ins. Co., 
    49 S.W.3d 265
    , 269 (Tenn. 2001). In reviewing the record, “courts must view
                   the evidence in the light most favorable to the nonmoving party and
                   must also draw all reasonable inferences in the nonmoving party’s
                   favor.” Staples v. CBL & Assocs. Inc., 
    15 S.W.3d 83
    , 89 (Tenn.
                   2000). “If both the facts and conclusions to be drawn therefrom
                   permit a reasonable person to reach only one conclusion, then
                   summary judgment is appropriate.” Seavers v. Methodist Med. Ctr.
                   of Oak Ridge, 
    9 S.W.3d 86
    , 91 (Tenn. 1999).
    
    Pero’s Steak & Spaghetti House v. Lee, 
    90 S.W.3d 614
    , 620 (Tenn. 2002).
    
                                                 III.
                                           LAW AND ANALYSIS
    
            We begin with Apollo’s first issue regarding the grant of summary judgment to New Image
    on the inducement of breach of contract claim. The complaint filed by Apollo specifically alleges
    a cause of action based upon section 47-50-109 of the Tennessee Code, which provides:
    
                   It is unlawful for any person, by inducement, persuasion,
                   misrepresentation, or other means, to induce or procure the breach or
                   violation, refusal or failure to perform of any lawful contract by any
                   party thereto; and, in every case where a breach or violation of such
                   contract is so procured, the person so procuring or inducing the same
                   shall be liable in treble the amount of damages resulting from or
                   incident to the breach of the contract. The party injured by such
                   breach may bring suit for the breach and for such damages.
    
    
    
                                                    -4-
    Tenn. Code Ann. § 47-50-109 (2003). Tennessee recognizes both a statutory and common law cause
    of action for inducement of breach of contract.3 Quality Auto Parts Co., Inc. v. Bluff City Buick Co.,
    Inc., 
    876 S.W.2d 818
    , 822 (Tenn. Ct. App. 1994). In order to establish a cause of action for
    inducement of breach of contract, the plaintiff, in this case Apollo, is required to prove the following
    elements:
                    (1) that there was a legal contract; (2) that the wrongdoer had
                    sufficient knowledge of the contract; (3) that the wrongdoer intended
                    to induce its breach; (4) that the wrongdoer acted maliciously; (5) that
                    the contract was breached; (6) that the act complained of was the
                    proximate cause of the breach; and (7) that damages resulted from the
                    breach.
    
    TSC Indus., Inc. v. Tomlin, 
    743 S.W.2d 169
    , 173 (Tenn. Ct. App. 1987).
    
            “[A] party to a contract cannot be held liable for procuring its own breach or termination of
    that contract. . . .” Ladd v. Roane Hosiery, Inc., 
    556 S.W.2d 758
    , 760 (Tenn. 1977); see also Waste
    Conversion Sys., Inc. v. Greenstone Indus., Inc., 
    33 S.W.3d 779
    , 782 (Tenn. 2000); Forrester v.
    Stockstill, 
    869 S.W.2d 328
    , 331 (Tenn. 1994); Kent v. Edwards & Assocs., Inc., No. E-1999-00399-
    COA-R9-CV, 2000 Tenn. App. LEXIS 29, at *13 (Tenn. Ct. App. Jan. 25, 2000). Apollo’s
    complaint alleged the existence of a breach only as to its contract with New Image. At no time
    during the proceedings below did Apollo contend that the actions by New Image resulted in the
    breach of a contract between Apollo and a third party. In fact, Apollo conceded at oral argument
    before this Court that it is not claiming a breach of a contract with a third party. Accordingly, as a
    matter of law, Apollo failed to state a cause of action for inducement of breach of contract, and we
    must affirm the trial court’s grant of summary judgment to New Image on this cause of action.
    
            We now turn to Apollo’s second issue regarding the trial court’s grant of summary judgment
    to New Image on the breach of contract claim. At the outset we note that our review of the trial
    court’s ruling regarding this issue is complicated by the state of the record. This case involves a
    contract dispute, yet, as previously noted, the record does not contain a copy of the contract.4 In
    addition, in an effort to establish the existence of a factual dispute at the hearing below and on
    appeal, Apollo relied solely on the deposition testimony of witnesses. It is difficult for this Court
    
             3
                Apollo’s brief contains an argument relating to a cause of action based upon tortious interference with a
    business relationship. Tennessee recognizes a separate and distinct cause of action for intentional interference with
    business relationships. Trau-Med of Am., Inc. v. Allstate Ins. Co., 
    71 S.W.3d 691
    , 701 (Tenn. 2002). This is the first
    instance in which Apollo has raised this as a cause of action, and the record is devoid of any mention of such a cause of
    action being raised in the trial court below. Accordingly, we refuse to entertain a new cause of action raised for the first
    time on appeal. City of Cookeville v. Humphrey, 126 S.W .3d 897, 905–06 (Tenn. 2004) (refusing to entertain a new
    theory of recovery for the first time on appeal); Chadwell v. Knox County, 980 S.W .2d 378, 384 (Tenn. Ct. App. 1998)
    (noting that issues not raised in the trial court cannot be settled for the first time on appeal).
    
             4
               Fortunately, the record reveals that New Image, without stipulating to the existence of an enforceable contract
    and only for purposes of summary judgment, agreed “that [Apollo’s] allegations regarding the enforceability of the
    contract are true.”
    
                                                                -5-
    to conduct a de novo review of the trial court’s grant of summary judgment when the record does not
    contain a copy of the deposition testimony relied on by the Appellant. While the record contains
    portions of deposition testimony attached as exhibits to pleadings, motions, or orders, the
    Appellant’s brief cited to deposition testimony not found in the record. It is the appellant’s duty to
    provide this Court with an adequate record. See Sherrod v. Wix, 
    849 S.W.2d 780
    , 783 (Tenn. Ct.
    App. 1992); Coakley v. Coakley, 
    840 S.W.2d 367
    , 370 (Tenn. Ct. App. 1992); McDonald v. Onoh,
    
    772 S.W.2d 913
    , 914 (Tenn. Ct. App. 1989); Scarbrough v. Scarbrough, 
    752 S.W.2d 94
    , 97 (Tenn.
    Ct. App. 1988).
    
            New Image’s motion for summary judgment attacked Apollo’s breach of contract claim on
    two grounds: inability to prove damages based on “lost profits” and lack of a material breach. In a
    breach of contract action, proof of damages is an essential element to the plaintiff’s cause of action.
    Union Planters Bank of Middle Tenn. v. Choate, No. M1999-01268-COA-R3-CV, 2000 Tenn. App.
    LEXIS 593, at *8 (Tenn. Ct. App. Aug. 31, 2000). The complaint filed by Apollo sought damages
    based on lost profits. In response to New Image’s motion for summary judgment, Apollo merely
    referenced a statement made by Mr. O’Brien to the effect that he receives $1,000.00 to $1,500.00
    per unit for hair replacement units. This statement by Mr. O’Brien is not included in the record,
    therefore, we are unable to verify its authenticity. See Coakley v. Coakley, 
    840 S.W.2d 367
    , 370
    (Tenn. Ct. App. 1992).
    
            Assuming arguendo that Mr. O’Brien’s statement was contained in the record, this statement
    alone would not cure Apollo’s inability to prove damages based on lost profits. “When lost profits
    are the proper measure of damages, they need only be proved with reasonable certainty, not with
    mathematical precision.” Johnson v. Welch, No. M2002-00790-COA-R3-CV, 2004 Tenn. App.
    LEXIS 86, at *54 (Tenn. Ct. App. Feb. 9, 2004) (citing McClain v. Kimbrough Constr. Co., 
    806 S.W.2d 194
    , 200 (Tenn. Ct. App. 1990)). However, “[i]t appears to be the rule in this State, as
    generally elsewhere, that lost or expected profits are recoverable as damages for breach of contract,
    provided they can be proved with reasonable certainty, and are not in fact remote or speculative.”
    Morristown Lincoln-Mercury, Inc. v. Roy N. Lotspeich Publ’g Co., 
    298 S.W.2d 788
    , 793 (Tenn. Ct.
    App. 1956) (citations omitted) (emphasis added). Apollo failed to establish how Mr. O’Brien
    reached this measure, how this amount relates to the four models subject to the exclusive dealing
    contract with New Image, that he would in fact have been able to sell the twenty-six units sold by
    New Image to Apollo’s competitors, or that any of Apollo’s customers purchased one of the same
    models from a competitor of Apollo.5 Premising damages for lost profits on a perceived loss of
    business by Apollo would necessitate an unacceptable amount of speculation in fixing those
    damages. See Keller v. West-Morr Investors, Ltd., 
    770 S.W.2d 543
    , 550–51 (Tenn. Ct. App. 1988).
    
    
    
    
             5
               W e do not mean to imply that a party must prove these factors in order to establish damages for lost profits
    with reasonable certainty. W e merely seek to demonstrate that, based on the circumstances of this case, the single
    statement offered by Mr. O’Brien is too uncertain and speculative to establish damages based on lost profits as a matter
    of law.
    
                                                              -6-
            In its response to New Image’s motion for summary judgment, Apollo also stated, for the first
    time in the trial court below, that Mr. O’Brien testified in his deposition that Apollo had to cover by
    purchasing 106 substitute products from another supplier at higher prices. In addition, Apollo’s
    brief submitted to this Court provides: “In this cause the Defendant’s repetitive breaches of the
    exclusive agreement required the Plaintiff to incur cover damages for 106 units purchased from other
    vendors when Defendant could not supply the excusive [sic] hair units in a timely manner.”
    However, Apollo’s complaint states that the cause of action for breach of contract is based on the
    theory that New Image breached the contract by selling twenty-six hair replacement units to Apollo’s
    competitors. The complaint makes no mention of New Image’s failure to supply hair replacement
    units under the contract, and the record does not evidence an amendment to the pleadings by Apollo
    to reflect this additional ground for breach of contract. See Tenn. R. Civ. P. 15.01 (2003). In
    addition, in a portion of Mr. O’Brien’s deposition that is contained in the record, he states:
    
                   Q.      Are you complaining that the delivery issues that we’ve talked
                           about, whether it’s in ‘99 or 2000, you’re not claiming that
                           the delivery problems were in anyway a breach of the August
                           24th, 1999 agreement?
                   A.      No.
                   Q.      You’re not alleging that at all.
                   A.      No.
    
    Accordingly, this component of the second issue raised by Apollo is without merit.
    
             Regarding the existence of a material breach, the state of the record prevents this Court from
    making a determination of that component of the second issue. As previously stated, the record does
    not contain a copy of the contract, nor do we have the complete deposition testimony of all the
    witnesses to verify the factual statements made by Apollo in response to the motion for summary
    judgment or in its brief on appeal. Under these circumstances, we must assume the trial court
    correctly granted summary judgment to New Image on the breach of contract claim. See Sanders
    v. Sanders, No. M1998-00978-COA-R3-CV, 2001 Tenn. App. LEXIS 937, at *10 (Tenn. Ct. App.
    Dec. 28, 2001) (quoting Tenn. R. App. P. 24(a) (2003)) (“The Tennessee Rules of Appellate
    Procedure require the parties, not the appellate courts, to provide a record on appeal that contains
    a ‘fair, accurate, and complete account of what transpired with respect to those issues that are the
    bases of the appeal.’”); Coakley v. Coakley, 
    840 S.W.2d 367
    , 370 (Tenn. Ct. App. 1992) (“Where
    the issues raised go to the evidence, there must be a transcript.”).
    
    
    
    
                                                     -7-
                                                   IV.
                                              CONCLUSION
    
            For the reasons set forth herein, we affirm the trial court’s grant of summary judgment in
    favor of the Appellee, New Image. Costs of this appeal are taxed against the Appellant, Apollo Hair
    Systems of Nashville, and its surety, for which execution may issue if necessary.
    
    
    
                                                          ___________________________________
                                                          ALAN E. HIGHERS, JUDGE
    
    
    
    
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