BOGGS KURLANDER STEELE, LLC V. HORIZON COMMUNICATIONS, INC. (Tenn.Ct.App. February 22, 2008).
This appeal involves a declaratory judgment regarding the termination of a contract to install a cable system and provide cable service to a trailer park as well as a counter-complaint for damages. The trial court determined that the contract was properly terminated and dismissed the counter-complaint. On appeal, the Appellant argues that (1) the Appellee waived its contractual right to have this matter decided pursuant to Kentucky law; (2) that the trial court erred in determining that it materially breached the contract by failing to install a new system in a timely manner; (3) that the trial court erred in determining that it did not provide cable service equal to the service rendered by the former cable provider; (4) that the trial court erred in determining that the contract was properly terminated; (5) that it is entitled to damages because the Appellee failed to notify the Appellant with information about new residents as required by the contract; and (6) that the trial court erred by awarding the Appellee its attorney's fees and failing to award the Appellant its attorney's fees.
We find that the Appellee has waived its right to have this matter determined pursuant to Kentucky law. The trial court did not err in determining that the Appellant materially breached the contract by not providing cable service equal to the service previously provided and that the contract was properly terminated. Furthermore, we find that the Appellant is not entitled to damages because the Appellant did not prove what damages it incurred due to the Appellee's failure to provide the homes of new residents as required by the contract. Finally, the trial court did not err in awarding the Appellee's attorney's fees. The judgment of the trial court is affirmed, and this cause is remanded to the trial court for the award of Appellee's attorney's fees on appeal.
Opinion available at the Tennessee Bar Association website: http://www.tba2.org/tba_files/TCA/2008/boggskurlandersteele_022208.pdf
"[T]he majority owner of Horizon testified that his company installed higher grade amplifers, replaced defective amplifiers, began replacing old cable with more appropriate cable and “it was made very clear that the old system would stay in place to ensure a smooth transition for when we did rebuild the system.” He further testified that to improve the signal quality, they decided to go to a digital system immediately and did so. Therefore, ... we find that the parties reasonably expected Horizon’s system to be the same as or better than Mr. Clinnard’s system. Thus, Horizon was required by the Contract to provide cable service equal to or better than Mr. Clinnard’s system." Id.
"Since the trial court found, without objection by either party, that six months was a reasonable time for the transition to take place, Horizon had six months from the date of the Contract to provide cable service equal to or better than Mr. Clinnard’s system, and Horizon breached the contract by not providing cable service that met that requirement. ... [W]e find that the preponderance of the evidence supports the trial court’s finding that Horizon did not provide cable service equal to or better than Mr. Clinnard’s system within the six month transition period. Thus, Horizon breached the Contract on December 26, 2003, six months after the date of the contract, and the breach was clearly material because cable television service was what the Contract was all about." Id.