author: DAVID R. FARMER, J.,

text:
    94TH AERO SQUADRON OF MEMPHIS, INC. v. MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY v. Specialty Restaurant Corporation.
    Court of Appeals of Tennessee, at Jackson.
    July 20, 2004 Session.
    Nov. 2, 2004.
    Application for Permission to Appeal Denied by Supreme Court May 23, 2005.

      Larry E. Parrish, Memphis, Tennessee, for the appellants, 94th Aero Squadron of Memphis, Inc. and Specialty Restaurant Corporation.
    R. Grattan Brown, Jr., William L. Hendricks, Jr., and Jeremy G. Alpert, Memphis, Tennessee, for the appellee, Memphis-Shelby County Airport Authority.
   OPINION

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.

This appeal involves the termination of a commercial real estate lease agreement. Among a multitude of other claims, Plaintiff, Lessee, contends that Defendant, Lessor, breached the lease by failing to provide lessee with notice of default, sufficient to satisfy the terms of the lease. Additionally, Lessee argues that Lessor violated section 29-18-101, et seq. of the Tennessee Code Annotated (Forcible Entry and De-tainer) by re-entering the leased premises without first obtaining a writ of possession. Lessee appeals from the trial court’s final judgment in favor of Lessor. We affirm as modified.

On January 4, 1978, Memphis-Shelby County Airport Authority (“Lessor”) and 94th Aero Squadron of Memphis, Inc. (“Lessee”) entered into a long-term lease agreement for premises located at the Memphis International Airport. Under the lease, Lessee agreed to construct, at its own cost, a restaurant complex, including parking, landscaping, and an access road. The lease also provided that, upon the termination of the lease, “any buildings and improvements remaining on the demised premises ... shall ipso facto ... vest in and become the property of Lessor, free and clear of all hens and encumbrances, subject only to Lessee’s rights of removal of trade equipment....” The lease had a base term of twenty years, with two options for renewal periods of ten years each. Minimum rent was set at $2,000 per month.

From 1980 to March, 1988, Lessee built, operated, and maintained on the leased premises a restaurant facility known as the “91st Bomb Group Restaurant.” Specialty Restaurants Corporation (“Specialty”), Lessee’s parent company and third-party defendant, joined in the execution of the lease for the purpose of guaranteeing the obligations of Lessee from the inception of the lease and continuing for a two-year period following the date the restaurant opened for business. Specialty is a corporation organized under the laws of California.

The 91st Bomb Group Restaurant is best characterized as an “airport theme restaurant,” consisting of a free standing restaurant located on an airport adjacent to a runway. David Tallichet (Mr. Talli-chet) is the founder and president of Specialty and, since 1959, has either operated or leased up to eighty-four restaurants throughout the United States. Arthur Longoria (Mr. Longoria), a licensed, practicing attorney, was employed by Specialty from 1988 to 1995. Mr. Longoria served as “manager of transactions,” and, in that role, was directly in charge of handling the lease at issue in this case. Jerry McMi-chael (Mr. McMichael) began working for Lessor in 1988 and was responsible for all matters pertinent to this appeal. He testified at trial on behalf of Lessor.

Pursuant to the lease agreement, Lessee covenanted to, inter alia, maintain the premises in good order and repair and keep the restaurant open for business. These specific covenants were found in Articles 10 and 11 of the lease. Article 24 of the lease contained a termination clause and right of reentry clause. Under Article 24.(4) of the lease, Lessor had the “right to terminate this agreement in its entirety immediately upon the happening of ... [t]he abandonment or discontinuance of the operation and services by the Lessee.” In addition, this power of termination clause gave Lessor the right to terminate the lease upon the “failure by the Lessee to perform, keep and observe any other of the terms, covenants and conditions in [the lease] ... after the expiration of thirty (30) days from the date written notice ha[d] been given to the Lessee by the Lessor to correct such default or breach.” Lessor’s right of reentry under the lease provided as follows:

In the event of the cancellation or termination of this Lease by the Lessor the Lessor may immediately or at any time thereafter re-enter the demised premises or any part thereof in the name of the whole and repossess and have the same as of Lessor’s former estate and remove therefrom all goods and chattels not properly belonging, and expel said Lessee and all other persons who may be in possession of said demised premises, and that, too, without demand or notice.

Under the lease, all notices were to be in writing and sent by registered mail to the addresses specified in the lease or to such address as was designated thereafter by either party. Pursuant to the lease, notice was effective on the date of dispatch.

The restaurant opened for business in 1980, but, due to a salmonella incident that occurred in 1981, the restaurant never achieved continued success. According to Mr. Tallichet, the salmonella incident “destroyed” the restaurant. In March 1988, due to a lack of profitability, Lessee closed the restaurant. Lessee neither requested nor received authorization from Lessor before discontinuing restaurant operations. Between March 1988 and June 27, 1991, the date the lease was officially terminated, the restaurant remained closed and vacant. Despite continued assurances from Lessee that it was progressing towards finding an assignee or sublessee, the restaurant remained closed. During these three years, Lessee made no attempt to reopen and operate the restaurant. From the time Lessee discontinued restaurant operations until June, 1991, Lessee continued to make rental payments, albeit sometimes delinquent, and Lessor accepted those rental payments. Meanwhile, Lessor cooperated with Lessee’s efforts in transferring the lease, and on occasion Lessor itself sought potential subtenants for the premises.

By April, 1991, the restaurant and surrounding area were in a state of disrepair. A section of ceiling had collapsed as a result of flooding from a burst pipe. Overgrown grass, weeds, shrubs and debris covered the grounds. The military aircraft relics located about the premises had been neglected and were missing parts. Security fencing around the facility was not in compliance with FAA and Airport Safety Regulations. The structure had been vandalized, and there was evidence that homeless persons were using the building for shelter. In sum, the premises appeared dilapidated and abandoned.

By early April, 1991, in addition to the unkempt condition of the premises and closure of the business, Lessee’s rent was in arrears. Further, Lessee had failed to maintain a current certificate of insurance coverage as required by the lease. On April 8, 1991, Lessor mailed a letter to Lessee, via certified mail, giving notice of these defaults and demanding Lessee correct the defaults within the time provided under the lease. In this letter, Lessor stated, in all capital letters, “PLEASE CONSIDER THIS YOUR NOTICE TO CORRECT THE DEFAULTS ENUMERATED ABOVE.”

Between April 28 and June 27, 1991, Lessor and Lessee corresponded by telephone and letter. Lessee made repeated representations indicating it would cure all the breaches and maintaining confidence in finding a successor to the lease. On May 17, 1991, thirty-nine days after the April 8 default notice, Lessee mailed a current certificate of insurance to Lessor. In its accompanying letter, Lessee represented that it had “commenced to make arrangements in order to clean up the debris and make repairs to the security fencing.” Additionally, in the May 17 letter, Lessee stated that it hoped to have an executed sublease agreement ready for Lessor’s approval during the week of May 20th. Lessee, however, never executed the sublease and never completed any transaction for the transfer of the lease. On May 24, 1991, Lessor faxed to Lessee six pages of landscaping contractors copied from the Memphis area yellow pages. Despite this assistance, the run-down condition of the premises was never remedied.

On June 27, 1991, eighty days after the notice of default, Lessor mailed to Lessee a notice of termination of the lease, effective immediately. On or about that date, Lessor placed a padlock on the gate to the facility. Despite notice of termination, Lessee mailed and Lessor inadvertently deposited a rent check for the month of July. When Lessor became aware of this mistake, Lessor returned a check in the same amount to Lessee. Lessee continued to make rental payments for the months of August and September, each of which was returned by Lessor without depositing.

Procedural History

To describe the thirteen years of litigation preceding this appeal as “protracted” would be an understatement. The record on appeal is congested with a myriad of pre-trial motions, discovery motions, trial memoranda, post-trial motions, and the like. Lessee commenced this case on January 24, 1992. In its complaint for declaratory judgment, filed in the Shelby County Chancery Court, Lessee alleged that Lessor breached the termination provisions of the lease, and Lessee sought specific performance of the lease. On April 28, 1992, Lessor answered and counter-claimed, averring that Lessee in fact breached the lease through multiple defaults. Lessor also included a third-party complaint against Specialty, asking the court to hold Specialty responsible as successor to the duties and responsibilities of Lessee under the lease. On August 26, 1992, the trial court granted Lessor’s Motion to Require an Election of Remedies, estopping Lessee from seeking specific performance because Lessee had told Lessor that it was seeking money damages only, and, based on those representations, Lessor had entered into another lease.

Both parties subsequently filed motions for summary judgment. On June 28,1993, the trial court entered an order denying both parties’ summary judgment motions. After several motions, responses and a hearing, on March 4, 1994, the trial court entered an order allowing Lessor to demolish the building located on the demised premises. On August 31, 1993, Specialty filed a voluntary petition in bankruptcy in a California bankruptcy court, seeking reorganization under Chapter 11. Pursuant to 11 U.S.C. § 362(a), an automatic stay was placed on all proceedings in the trial court until Specialty’s Chapter 11 affairs were concluded, and Lessee gave notice to this effect on September 14, 1993. Except for the order permitting the demolition of the restaurant, all action in this case ceased until after Specialty emerged from bankruptcy.

Trial was set for November 28, 2000. On November 3, 2000, Lessee filed its first proposed amended complaint. In its proposed amended complaint, Lessee presented several theories of recovery, including conversion, trespass, and inverse condemnation that were not alleged in the original complaint filed over eight years before. On November 8, 2000, Lessor filed and the court heard Lessor’s motion to strike the amended complaint. At this hearing, the court gave Lessee the option to amend the complaint “anyway you feel like you want to” or proceed on the original complaint. Because of the quickly approaching trial date and the new claims presented in the amended complaint, the trial court made its permission to amend contingent on the granting of a trial continuance to Lessor. Lessee opted not to amend its complaint.

The bench trial began on November 28, 2000 and continued for five days. The court filed written findings of fact and conclusions of law, ruling, among other things, that Lessee was in default of the lease; that Lessor had properly given notice of those defaults and properly terminated the lease; that pursuant to the lease, as the prevailing party, Lessor was entitled to reasonable attorneys’ fees; and that Specialty, because of its complete dominion and control over Lessee, was liable for the contractual obligations of Lessee. On November 14, 2002, the trial court entered final judgment awarding Lessor $41,458.71 in discretionary litigation costs and $881,689.75 in attorneys’ fees, for a total judgment of $428,148.46. Courts costs were assessed against Lessee and Specialty. Lessee appealed.

Although Lessee lists nineteen issues on appeal, we perceive the issues as follows:

(1) Whether the trial court erred in finding that Lessee defaulted on the lease and that Lessor properly gave notice of those defaults and properly terminated the lease.
(2) Whether the trial court erred in failing to find that by reentering the premises without a writ of possession, Lessor was in violation of section 29-18-101, et seq. of the Tennessee Code.
(3) Whether the trial court erred in allowing Lessee to amend its complaint only if Lessee agreed to a trial continuance.
(4) Whether the trial court erred in excluding the proffered testimony of Lessee’s expert, Philip Kolbe, Ph.D.
(5) Whether the trial court erred in denying Tenant’s motion to appoint a Special Master for the calculation of compensatory damages.
(6) Whether the trial court erred in granting Lessor’s motions in limine excluding deposition testimony, where deponents were California residents and no advance notice was given that the depositions were intended to be used as evidence.

Standard of Review

The standard of review of a trial court sitting without a jury is de novo upon the record of the trial court. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). The trial court’s findings of fact are presumed correct, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d) (2003). On issues of witness credibility, the trial court is able to observe witness testimony and evaluate a witness’s demeanor. Thus, the court’s assessment of a witness’s credibility will not be disturbed without clear and convincing evidence to the contrary. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). On questions purely of law, no presumption of correctness attaches to the trial court’s conclusions, which are reviewed de novo. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Law and Analysis

(1) Breach of Lease

In its brief, Lessee presents an array of issues that all seem to drive towards one question — whether the Lessor breached the lease by failing to give proper notice of default and notice of termination of the lease. Lessee also contends that Lessor waived any breach of the lease on the part of Lessee by accepting rental payments during the months the restaurant was closed through the date of termination, July 27, 2001.

(a) Sufficiency of Notice

The interpretation of lease terms is governed by traditional rules of contract construction. Planters Gin Co. v. Federal Compress and Warehouse Co., 78 S.W.3d 885, 889 (Tenn.2002). When construing contracts, the words contained within the instrument should be given their plain, ordinary meaning, and, “in the absence of fraud or mistake, a contract must be interpreted and enforced as written, even though it contains terms which may be thought harsh or unjust.” Heyer-Jordan & Assoc., Inc. v. Jordan, 801 S.W.2d 814, 821 (Tenn.Ct.App.1990) (citing Ballard v. North Am. Life & Cas. Co., 667 S.W.2d 79 (Tenn.Ct.App.1983)). If the contract language is unambiguous, the written terms control, not the “unexpressed intention of one of the parties.” Sutton v. First Nat’l Bank of Crossville, 620 S.W.2d 526, 530 (Tenn.Ct.App.1981). The rights and obligations of parties to a contract are determined by the terms written in the agreement. Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Sys., 884 S.W.2d 458, 461-62 (Tenn.Ct.App.1994).

The lease at issue in this case clearly and unambiguously obligated Lessee to perform certain covenants. Under the lease, Lessee agreed to, among other things, continuously operate a restaurant and maintain the premises in good order and repair. There is no serious dispute that Lessee failed to perform these covenants. Restaurant operations were shut down beginning March, 1988, and the condition of the premises deteriorated steadily thereafter. The lease, by its terms, granted Lessor the right to terminate the lease for these defaults. The chancellor found that Lessee “made numerous representations ... that [it would] ... assign or sublease the premises to a third party that would re-open the restaurant or use the property for another valid business purpose.” The trial court further found that, relying on these representations, Lessor was induced to permit Lessee to continue under the lease. Lessor attempted to assist Lessee in its purported efforts to find a subtenant and procure landscaping services to restore the premises to an acceptable condition. Pursuant to the lease, Lessee was given affirmative notice to correct these defaults within thirty days of the notice, dated April 8,1991. Lessee did not cure these defaults, and on June 27, 1991, some two and one-half months after the notice of default, Lessor mailed a letter of termination of the lease effective immediately. These findings by the chancellor are amply supported by the record.

Lessee first contends that the April 8, 1991 notice of default was unreasonable because it was insufficient to put Lessee on notice that, if Lessee failed to cure the defaults, Lessor would terminate the lease. The record, on the other hand, paints a much different picture. Besides indicating to Lessee that rent was outstanding and that Lessee’s certificate of insurance had expired, the April 8th letter recited, in relevant part, the following: “Article 24 of the lease provides for immediate termination of the lease upon ‘the abandonment or discontinuance of the operation and service by Lessee.’ We feel that this situation has occurred.” The letter continued by restating Article 24 of the lease which provides for termination of the lease for failure to perform the covenants within the lease, “after the expiration of thirty (80) days from the date written notice has been given to the Lessee by the Lessor to correct such default or breach.” At the close of this paragraph in the letter, Lessor included the following statement in all capital letters, “PLEASE CONSIDER THIS YOUR NOTICE TO CORRECT THE DEFAULTS ENUMERATED ABOVE.” Moreover, when asked to review this letter at the trial, CEO and President of Lessee, David Talliehet, testified that “[the letter] does look like a notice of default.” It is clear from the record that the notice of default was unmistakable, and Lessee clearly understood the purpose of the letter.

Lessee also contends that Lessor improperly terminated the lease by regaining possession of the premises without seeking a writ of possession. As stated previously, the record reflects that Lessee was in breach of numerous provisions of the lease. After putting Lessee on notice of certain defaults and failing to cure those problems, Lessor was well within its rights under the lease to terminate. Lessee’s primary contention, however, deals with the manner in which Lessor proceeded after the June 27, 1991 letter of termination. We will separately address the issue of whether a writ of possession was necessary in this case.

(b) Waiver

Lessee also asserts waiver on the part of Lessor. The fact that Lessor assisted Lessee in its efforts to find a subtenant, while accepting rental payments for the months of April, May, and June 1991 does not, as Lessee suggests, serve as a waiver of Lessor’s rights under the lease. Waiver is commonly defined as the “voluntary relinquishment of a known right[,] established by express declarations or acts manifesting an intent not to claim the right.” Tenn. Asphalt Co. v. Purcell Enter., Inc., 631 S.W.2d 439, 444 (Tenn.Ct. App.1982). In general, by accepting benefits under a contract with knowledge of a breach, the non-breaching party waives the breach. 17 Am.Jur.2d Contracts § 447 (1964). The analysis, however, does not stop there, as Tennessee law also holds:

[M]ere efforts on the part of an innocent party to persuade the promisor, who repudiates his agreement, to reject that repudiation and proceed honorably in the performance of his agreement have been held not to involve a waiver of the innocent party’s right to avail himself of the breach after the efforts finally prove unsuccessful.

Id.; W.F. Holt Co. v. A & E Elec. Co., Inc., 665 S.W.2d 722, 783 (Tenn.Ct.App.1983). Negotiating with another party in the face of a breach by that party will not constitute a waiver, where such action was the result of misrepresentation by the breaching party. W.F. Holt Co., 665 S.W.2d at 733-34. Waiver may also be shown by “express declaration; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage; or by course of acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was [the party’s] intention and purpose to waive.” Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713, 722 (Tenn. Ct.App.1998) (quoting Baird v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384, 389 (1942)).

In this case, Lessor never indicated that it was releasing or waiving its rights under the lease by cooperating with Lessee’s attempts to cure the defaults. In fact, there is nothing in the record to indicate Lessee ever asserted a waiver on the part of Lessor. On repeated occasions, Lessee represented that it was close to finding a subtenant and was arranging to have the premises repaired. In reliance on Lessee’s repeated assurances, Lessor cooperated with Lessee in working towards an amicable resolution. While attempting to cure the numerous defaults, Lessee remained obligated under the lease to pay rent. By accepting those rental payments, Lessor was not waiving any breach on the part of Lessee because Lessee understood that it remained obligated under the lease to operate a restaurant or find a suitable replacement and restore the premises to a good state of repair and condition. When it became apparent that Lessee was either unwilling or unable to fulfill these promises, Lessor terminated the lease. We hold the trial court did not err in finding that Lessor did not waive the covenants under the lease by accepting rental payments after the notice of default.

(2) Reentry Without Writ of Possession

Soon after Lessor’s July 27, 1991, letter of termination, Lessor went onto the premises and placed a padlock on the outside gate. Lessor proceeded in this fashion based upon the right-of-reentry provision in the lease, which states as follows: “In the event of the cancellation or termination of this Lease by the Lessor the Lessor may immediately or at any time thereafter re-enter the demised premises or any part thereof in the name of the whole and repossess and have the same as of Lessor’s former estate.... ” Lessor contends, and Lessee vehemently disputes, that under the facts of this case Lessor was not required to resort to the courts to reenter and repossess the premises. Lessor bases its argument on the existence of the bargained-for right-of-reentry provision in the lease and the fact that the premises had been vacant for three years. Lessee argues that despite the unoccupied appearance of the building, Lessee was still in “possession” of the premises, thus Lessor was required to seek a writ of possession under section 29-18-101, et seq. of the Tennessee Code (Forcible Entry and Detainer).

Since 1821, Tennessee has had a statute that “creates a right to bring a cause of action for a writ of possession when a lessee remains on the leased property after the lease has been terminated.” Cain P’ship Ltd. v. Pioneer Inv. Servs. Co., 914 S.W.2d 452, 456 (Tenn.1996). Section 29-18-101 of the Tennessee Code provides that “[n]o person shall enter upon any lands, tenements, or other possessions, and detain or hold the same, but where entry is given by law, and then only in a peaceable manner.” Tenn.Code Ann. § 29-18-101 (1999 Supp.). The legislative intent behind the creation of Forcible Entry and Detainer (FED) actions was to provide a streamlined summary procedure to determine the rights to possession of land, in contrast to the old formal common law ejectment action. Newport Hous. Auth. v. Ballard, 889 S.W.2d 86 (Tenn. 1992). FED proceedings also serve the function of preventing violence and breaches of the peace that result from the inherent friction caused by repossessing property through self-help. Childress v. Black, 17 Tenn. 817, 320 (1836); 35A Am.Jur.2d Forcible Entry and Detainer § 6 (2001). To avoid these conflicts, the party seeking to repossess the land must do so with the aid of a writ of possession issued by the court. Hayes v. Schweikart’s Upholstering Co., 55 Tenn.App. 442, 402 S.W.2d 472, 484 (1965).

The cases construing Tennessee FED law hold that, absent abandonment or surrender of the premises by the tenant, the landlord is required to seek a writ of possession before reentering the land. Cain P’ship, 914 S.W.2d at 456-57; Matthews v. Crofford, 129 Tenn. 541, 167 S.W. 695, 698 (1914); Hayes, 402 S.W.2d at 484; Cutshaw v. Campbell, 3 Tenn.App. 666, 688-89 (1925); William B. Tanner Co. v. United States, No. C-75-337, 1976 WL 1065, at *4 (W.D.Tenn. June 16, 1976). Although other states allow a commercial tenant to waive its statutory protection from self-help repossession through a right-of-reentry clause, in Tennessee, “the action of unlawful detainer is the legal substitute for personal entry.” Matthews, 167 S.W. at 698. In Cutshaw v. Campbell, this Court stated, “the jurisdiction of the courts to determine these questions of disputed sovereignty cannot be delegated to individuals.” Cutshaw, 3 Tenn.App. at 688. The court further stated that even if the right-of-reentry provision undertook to allow for self-help, “it was right in the teeth of the law, subversive of its peaceful process, and void.” Id.

In its brief to this Court, Lessor cites Nashville Record Productions, Inc. v. Mr. Transmission, Inc., 623 S.W.2d 281 (Tenn. Ct.App.1981), for the proposition that, pursuant to a right-of-reentry clause, a commercial landlord may repossess leased premises without a writ of possession. The primary issue in Nashville Record was whether a lease provision could waive the common law requirement that rent be demanded before a forfeiture could be declared. Id. at 282. In Nashville Record, the tenant was in default for failure to pay rent, and after several notices to cure, the landlord declared the lease forfeited. Id. The landlord then brought an action to recover possession in March 1980, which was ultimately granted by the trial court in October 1980. Id. at 283. In May 1980, subsequent to the initiation of the possession action, the tenant vacated, whereupon the landlord locked the premises. The appeal by the landlord centered around whether it was entitled to rents from the time the tenant vacated in May through the time the writ of possession was issued in October. Id. This Court denied the landlord rent for those months during which the premises were vacant but no order of possession had yet been issued because we found that the landlord had possession and use of the premises from the time of actual repossession forward. Id. at 284. The lease’s right-of-reentry clause had no bearing on the holding in Nashville Record, as the landlord gained possession by initiating the FED action. Id. at 283. Nashville Record is not determinative to the case at bar because the landlord there did, in fact, seek and obtain a writ of possession pursuant to section 29-18-127 of the Tennessee Code.

Other states have adapted their FED law, either by statute or case law, to allow for reentry without judicial process in the commercial lease context. See, e.g., Rucker v. Wynn, 212 Ga.App. 69, 441 S.E.2d 417, 419 (1994); Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704, 707 (1926). In those states, a commercial landlord may reenter under a right-of-reentry provision to effect a self-help repossession without judicial process if the repossession can be achieved without a breach of the peace. Rucker, 441 S.E.2d at 420; Craig Wrecking Co. v. S.G. Loewendick & Sons, Inc., 38 Ohio App.3d 79, 526 N.E.2d 321, 326 (1987); Liberty Indus. Park Corp. v. Protective Packaging Corp., 71 Misc.2d 116, 335 N.Y.S.2d 333, 336-37 (N.Y.Sup.Ct. 1972). By statute in Georgia, in any residential lease, a landlord or tenant may not waive any rights or obligations contained in the sections covering dispossession proceedings. Ga.Code. Ann § 44-7-2 (2003). Therefore, Georgia courts have held that, by implication, commercial lessors may avoid FED proceedings through the inclusion of default and right-of-reentry provisions. Colonial Self Storage of South East, Inc. v. Concord Props., Inc., 147 Ga.App. 493, 249 S.E.2d 310, 311 (1978). Tennessee’s FED statute, however, does not distinguish between residential and non-residential property.

Under the facts of this case, despite the lease provision for reentry, Lessor was required to seek a writ of possession before reentering the premises. In this case, however, Lessor would have been entitled to possession had it proceeded according to the unlawful detainer statute, and Lessee has failed to show any actual damages suffered from Lessor’s failure to seek and obtain a writ of possession before repossessing the property. Thus, Lessee is entitled to nominal damages only. Cutshaw v. Campbell, 3 Tenn.App. 666, 689 (1925) (holding that tenant who was unlawfully dispossessed but had no rights in the property after the date of termination entitled to nominal damages only).

(3) Permission to Amend Complaint Made Contingent on Continuance of Trial

Under Rule 15.01 of the Tennessee Rules of Civil Procedure, once a responsive pleading is served or the time allowed for amendment has expired, a party may amend the party’s pleadings “only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires.” Tenn. R. Civ. P. 15.01 (2004). The rule’s provision that “leave shall be freely given” has been liberally construed to “lessen[] the exercise of pre-trial discretion on the part of the trial judge.” Branch v. Warren, 527 S.W.2d 89, 91-92 (Tenn.1975). Therefore, the court should freely grant the amendment, so long as prejudice to the opposing party can be avoided. Harden v. Danek Med., Inc., 985 S.W.2d 449, 454 (Tenn.Ct. App.1998); Campbell County Bd. of Edue. v. Brownlee-Kesterson, Inc., 677 S.W.2d 457 (Tenn.Ct.App.1984). The court, however, retains discretion to condition the amendment in order to minimize prejudice to the opposing party in maintaining his or her action or defense. For example, the court may condition the amendment on the granting of a continuance or the posting of a bond. Gardiner v. Word, 731 S.W.2d 889, 892-93 (Tenn.1987). The trial judge’s decision “will not be reversed unless [an] abuse of discretion is shown.” Harden, 985 S.W.2d at 454 (quoting Welch v. Thuan, 882 S.W.2d 792, 793 (Tenn.Ct.App. 1994)).

Here, Lessee filed its original complaint on January 24, 1992. The case finally went to trial on November 28, 2000. According to Appellant’s brief, the case was first set for trial on February 12, 1999 but was postponed by the trial judge until October 1999. The October trial date was further postponed until November 28, 2000. Lessee argues that both of these continuances were on the trial court’s own motion.

During a pre-trial hearing on August 16, 2000, the trial judge set a deadline of November 1, 2000 for the filing of any additional court documents. The court stated to counsel for both parties that it wanted to maintain a “drop-dead” trial date and have “no more surprise motions.” Counsel for both parties agreed that nothing further would be filed past that date. In fact, Lessee’s counsel made repeated statements that he did not want to file anything else. On August 29, 2000, the trial court issued a scheduling order instituting a November 1, 2000 deadline for the filing of any additional court documents.

On November 3, 2000, Lessee filed a motion to amend its complaint. This motion was filed two days after the agreed upon deadline, almost nine years after the original complaint, and three weeks before trial. The proposed amended complaint included claims for relief that were not pled in the original complaint, including claims for trespass, conversion, and inverse condemnation. Lessee argued in the trial court that the amended complaint would do nothing more than memorialize the theories of recovery Lessee had been claiming throughout the pre-trial stages of this case, and that Lessor was on notice that Lessee was pursuing these claims. On November 8, 2000, Lessor filed a motion to strike Lessee’s proposed amended complaint. At the November 8, 2000 hearing on this matter, the chancellor stated to Lessee’s counsel that he would allow Lessee to “amend this lawsuit anyway you feel like you want to,” but that he was not going to require the Lessor to go to trial on November 28th. Therefore, Lessee had the option to amend its complaint and have the trial postponed or go to trial as scheduled on the original complaint. Lessee chose the latter. In light of the looming trial date and the assertion of new claims in the proposed amended complaint, we cannot say the chancellor abused his discretion by conditioning leave to amend on Lessee’s agreement to a continuance of the trial.

(4) Proffered Expert Testimony of Philip Kolbe, Ph.D.

In this case, Lessee sought to recover damages for the cost of reconstruction, lost profits, and the value of the leasehold interest. Proceeding to trial, Lessee’s primary expert witness on the issue of damages was Philip Kolbe, Ph.D. (“Dr. Kolbe”), a professor of finance and real estate at the University of Memphis. Both parties and the chancellor conducted a lengthy voir dire of Dr. Kolbe. During the questioning, Dr. Kolbe responded that he never saw the actual premises or any of the building plans. His opinion as to construction costs was based on general knowledge rather than any specific factual basis pertaining to the premises at issue. He did not come prepared to testify to the value of comparable real estate and could not remember the names of people he spoke with regarding comparable real estate values. Dr. Kolbe’s valuation of the leasehold interest was based on compara-bles to which he could not identify and two offers for the leased premises that, according to Mr. Tallichet, “never materialized.”

Under Rule 702 of the Tennessee Rules of Evidence, a witness may testify in the form of opinion on scientific, technical, or other specialized matters. Tenn. R. Evid. 702 (2004). Before a court will allow such expert testimony, the proponent must first show that (1) the witness is “qualified as an expert by knowledge, skill, experience, training, or education[,]” and (2) the testimony will “substantially assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. If the underlying facts or data upon which the witness bases his/her opinion “indicate lack of trustworthiness,” the court must disallow the so-called expert testimony. Tenn. R. Evid. 703 (2004); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The qualification of a witness as an expert is a preliminary question for the trial judge. Tenn. R. Evid. 104(a)(2004); McDaniel, 955 S.W.2d. at 263. The trial court’s ruling on the admissibility of “expert” testimony may only be reversed upon a showing that the court’s decision was arbitrary or an abuse of discretion. McDaniel, 955 S.W.2d at 263-64 (citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993)); Lindgrenv. City of Johnson City, 88 S.W.3d 581, 585 (Tenn.Ct.App. 2002) (citing White v. Vanderbilt University, 21 S.W.3d 215, 231 (Tenn.Ct.App. 1999)).

The chancellor noted that he was predisposed to admit the testimony of Dr. Kolbe and remarked that Dr. Kolbe’s resume and background was impressive. Yet, in this case, the chancellor found that Lessee had failed to carry its burden in qualifying Dr. Kolbe as an expert in the proposed areas of testimony because the factual bases for the proffered testimony lacked reliability and trustworthiness. After reviewing the record, there was ample evidence to support the trial court’s decision to exclude Dr. Kolbe’s proffered expert testimony.

(5) Failure to Appoint Special Master

After the trial on the merits, Lessee filed a motion to appoint a special master to report on the amount of damages suffered by Lessee. The trial court took no action on this motion, presumably because the court found that Lessee was in breach and consequently was not entitled to damages.

In general, the decision whether to appoint a special master is within the discretion of the trial court. Tenn. R. Civ. P. 53.01 (2004) (“The court in which any action is pending may appoint a Special Master therein.”). Lessee argues that the trial court has no discretion in whether to appoint a special master to make a recommendation on the amount of damages. In support of this argument, Lessee cites Provident Life & Accident Insurance Co. v. Globe Indemnity Co., 156 Tenn. 571, 3 S.W.2d 1057 (1928). In Provident Life, the Tennessee Supreme Court held that, in cases involving complicated accountings, the matter should be referred to a special master after the basis for the accounting has been determined by the trial judge. Provident Life, 3 S.W.2d at 1058. Assuming, arguendo, that a trial judge is required to appoint a special master to assess damages, here, the chancellor found that Lessee had breached the lease and was not entitled to damages. Therefore, this issue is moot, as the appointment of a special master would have served no purpose.

(6) Trial Court’s Exclusion of Deposition Testimony of California Deponents

On April 1, 1998, Lessor’s counsel gave notice to Lessee that it would be traveling to California and taking a number of depositions of Specialty employees, namely Mr. Longoria and Gloria Madsen. The depositions were taken during the week of April 14,1998, and Lessee’s counsel was present. After Lessor finished his direct examination of the first deponent, Mr. Longoria, Lessee began questioning Mr. Longoria. At that point, Lessor’s counsel objected to any evidentiary use at trial by Lessee of the deposition testimony of Mr. Longoria. Lessor’s counsel stated that he had given notice that the deposition was for discovery only and not for evidentiary use. Lessee’s counsel stated his understanding that the law made no distinction between a “discovery” deposition and an “evidentia-ry” deposition. Both parties made a statement for the record, and Lessee’s counsel continued questioning. Upon the close of Lessee’s questioning of Mr. Longoria, which concluded the following morning, Lessor’s counsel did not conduct a redirect examination.

Before the trial, Lessor filed a motion in limine to exclude the use by Lessee in its case-in-chief of the deposition testimony of Mr. Longoria and Ms. Mad-sen. In support of this motion, Lessor argued, inter alia, that (1) Lessee failed to give notice of intention to take the deposition of Mr. Longoria as required by Rule 30.02 of the Tennessee Rules of Civil Procedure, (2) Lessor was not given “reasonable notice” of Lessee’s intention to use the deposition testimony pursuant to Rule 32.01(3)(B), and (3) Lessor would be denied its right of cross-examination if Lessee were allowed to use the deposition testimony as evidence at trial. Oral argument was held on the matter, and the trial court granted Lessor’s motion in limine, thus excluding the use of the deposition testimony at trial. Lessee filed a motion to reconsider and memorandum in support thereof, arguing that Tennessee law makes no distinction, with respect to use at trial, between “evidentiary” and “discovery” depositions.

Rule 32.01 of the Tennessee Rules of Civil Procedure governs the use of depositions in court proceedings. Rule 32.01(3)(B) provides in relevant part:

At the trial ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ... (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing or is out the state[.]

Tenn. R. Civ. P 32.01(3)(B).

Rule 32.01(3) is the counterpart to the former testimony hearsay exception, Rule 804(b)(1) of the Tennessee Rules of Evidence. See Tenn. R. Civ. P. 32.01, Advisory Commission Comment to 1990 Amendment; see also Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 8-7(e) (2d ed. 2004). The Advisory Commission Comment to Rule 32.01 further provides that “[e]xcept with respect to some experts, a deposition is admissible as substantive evidence at trial if the deponent is unavailable to give live testimony.” Tenn. R. Civ. P., Advisory Commission Comment to 2001 Amendment.

Here, the deponents would clearly meet the standard of “unavailability” for both Rule 32.01(3)(B) of the Tennessee Rules of Civil Procedure and Rule 804(a)(6) of the Tennessee Rules of Evidence, as both deponents resided in California. With regards to Mr. Longoria, however, he appeared and testified at trial. Therefore, the exclusion of his deposition testimony is rendered moot, and if the trial court erred by excluding the use of his deposition, that error, if any, would be harmless error. With regards to the exclusion of Ms. Mad-sen’s testimony, Lessee has not shown the relevance of her testimony, either in its brief, at oral argument or in the court below. Thus, we are unable to determine how Lessee was prejudiced, if at all, by the trial court’s exclusion of Ms. Madsen’s deposition testimony. Tompkin v. Philip Morris USA, Inc., 362 F.3d 882 (6th Cir. 2004).

Conclusion

For the foregoing reasons, we affirm the findings of the court below that Lessee breached the lease by failing to cure a number of defaults, of which Lessee was put on adequate notice. We further hold that the trial court did not err in conditioning leave to amend Lessee’s complaint upon a trial continuance. In addition, we hold the trial court did not err in excluding Lessee’s proffered expert witness’s testimony or in excluding the deposition testimony of two California deponents. The trial court’s failure to appoint a Special Master was also not error. We do, however, hold that the trial court erred in failing to find that Lessor was required to seek a writ of possession before repossessing the leased premises. However, having further determined that Lessee suffered no damages as a result thereof, the judgment of the trial court is modified to award Lessee nominal damages in the amount of $100.00.

The pivotal issue in this protracted litigation is breach of the lease agreement. The chancellor found Lessee to be in breach, and we concur. While Lessor has not appealed the award of attorney’s fees and costs, we will nonetheless address the award since we have determined that the court below was in error in ruling that Lessor could enter the premises without first obtaining a writ of possession.

The lease provides that “in the event of any legal action or suit resulting from any default of this Lease, the prevailing party shall be entitled to receive reasonable attorney’s fees.” In view of the fact Lessor prevailed on the pivotal issue of breach, we consider Lessor to be the prevailing party, notwithstanding the Lessee’s entitlement to nominal damages. Therefore, the award of attorney’s fees and costs is affirmed.

Costs of this appeal are taxed to the appellant, 94th Aero Squadron of Memphis, Inc. and Specialty Restaurant Corporation, and their surety.

      . Under Rule 27(i) of the Tennessee Rules of Appellate Procedure, arguments in the appellant’s brief shall not exceed fifty (50) pages, "[ejxcept by order of the appellate court or a judge thereof.” Tenn. R.App. P. 27(i) (2004). Lessee’s initial brief contains a section entitled "Argument” consisting of slightly in excess of forty-one pages, which incorporates by reference arguments raised in its trial court briefs and memoranda. [Trial briefs are excluded from the record. Tenn. R.App. P. 24(a).]. In addition, a separate section entitled "Summary of Argument” contains eight pages. Thus, in reality, Lessee’s argument exceeds the fifty-page limit by hundreds of pages.
      Rule 27(a)(5) of the Tennessee Rules of Appellate Procedure requires an appellant brief to contain a "statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below.” Tenn. R.App. P. 27(a)(5). The appellant brief in the instant case contains a section entitled "Statement of the Case" that consists of some eighty pages, which includes the text of letters; verbatim cites from transcript, the text from "Tenant’s Concise Statement of Undisputed Facts” (some five pages); Landlord’s response thereto; and the text of Tenant’s ninety-eight proposed findings of fact and Landlord’s response thereto.

      . Lessee raises a number of issues on appeal that were neither pled in its complaint nor tried by consent in the lower court. Unless an unpled claim has been tried by consent in the trial court, it cannot be raised for the first time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991); Fidelity-Phenix Fire Ins. Co. v. Jackson, 181 Tenn. 453, 181 S.W.2d 625, 629 (1944).

      . The trial court also found that Lessor received and deposited a rental payment for July 1991, after the lease was terminated, June 27, 1991. The trial court found that this payment was deposited in error and was immediately returned. Because of failure to cite to any authority to support its contention that this mistaken "acceptance” was an irrevocable waiver, Lessee’s argument is without merit. "The law will not presume a waiver, and the party claiming the waiver has the burden of proving it by a preponderance of the evidence.” Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713, 722 (Tenn.Ct.App. 1998) (citing Koontz v. Fleming, 17 Tenn.App. 1, 65 S.W.2d 821, 825 (1933)).

      . Lessee does not cite to the record in support of its assertion that the two previous trial dates were postponed "sua sponte.”

      . In its brief to this Court, Lessee has characterized the trial court’s exclusion of Dr. Kol-be's testimony as premised solely upon the fact that Dr. Kolbe was not a licensed real estate appraiser. Nothing in the record indicates, as Lessee argues, that the chancellor made "licensure the sine qua non of whether Dr. Kolbe had sufficient intellectual capacity and experience to serve as an expert.”


source: Caselaw Access Project

license: Public Domain

text:
    Marsha RICKETTS v. Sara M. ROBINSON, et al.
    Court of Appeals of Tennessee, at Jackson.
    Sept. 21, 2004 Session.
    Nov. 4, 2004.
    Application for Permission to Appeal Denied by Supreme Court May 9, 2005.

      Bruce Conley, Union City, TN, for Marsha Ricketts.
    Kyle C. Atkins, Humboldt, TN, for Sara M. Robinson.
    Fred N. McLean, Paris, TN, for Larry Pentecost.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This is an appeal from a jury verdict finding that all parties involved were without fault in an automobile accident. We affirm.

Statement of the Facts

On the morning of December 18, 2000, the defendant, Sara Robinson (“Ms.Robinson”) was traveling south on Rock Hill Road, near Sharon, Tennessee. The road was covered with some degree of snow and ice. As Ms. Robinson was driving up a hillside section of the road, her van began to lose traction and slide. She again attempted to drive up the hill, but, when her efforts failed, she decided to back the van down the hill. The van, however, continued to slide, but Ms. Robinson was able to stop the van half-way down the hill.

While Ms. Robinson was stopped halfway up the incline, the defendant, Larry Pentecost (“Mr.Pentecost”), also traveling south on Rock Hill Road, approached Ms. Robinson’s vehicle from behind. As Mr. Pentecost approached the scene, he stopped his telephone truck, set out warning cones, and walked up the hill to assist Ms. Robinson. Mr. Pentecost attempted to back the van down the hill, but the van continued to slide. The left rear of the van began to slide sideways towards the centerline of the road. Mr. Pentecost stopped the van with the back left quarter panel coming to rest approximately one and one-half feet to two feet into the northbound lane.

Shortly afterwards, the plaintiff, Marsha Ricketts (“Ms.Ricketts”), traveling north on Rock Hill Road, crested the hill and saw the defendant’s van stopped partially crossing the centerline. To avoid colliding with Ms. Robinson’s van, Ms. Ricketts drove her sports utility vehicle into the ditch on the east side of the road. Ms. Ricketts’ vehicle came to rest in the ditch at a point roughly even with Ms. Robinson’s van. Ms. Ricketts was able to drive her vehicle out of the ditch. Mr. Pentecost, with the help of a neighbor near the scene, physically turned Ms. Robinson’s van around, directing it north, and Ms. Robinson drove away.

Procedural History

On December 14, 2001, Ms. Ricketts filed a complaint against Ms. Robinson and Mr. Pentecost (collectively “Defendants”) seeking damages for injuries resulting from the accident. In her complaint, Ms. Ricketts alleged that Defendants negligently maintained control of Ms. Robinson’s vehicle and, as a result of their negligence, proximately caused Ms. Ricketts’ injuries. Ms. Ricketts based her claim on theories of common law negligence and statutory negligence per se.

The case was tried before a jury. Prior to trial, the court submitted proposed jury instructions to the parties. Ms. Ricketts filed a motion seeking to modify certain instructions, including an objection to an “unavoidable accident” charge and a request for an instruction that a motorist has a right to assume that a roadway will be clear. At the close of the proof, Ms. Rick-etts moved for directed verdict on the issue of liability, which the trial court denied. After hearing all the evidence and being instructed by the judge on the applicable law, the jury returned a verdict attributing zero percent (0%) fault to all the parties.

Issues

Ms. Ricketts appealed and has presented for our review the following issues:

(1) Whether the court erred in not granting a directed verdict on the issue of liability at the conclusion of the evidence.
(2) Whether the trial court erred in instructing the jury, as requested by Defendants, on the issue of unavoidable accident.
(3) Whether the trial court erred in failing to instruct the jury, as requested by the Plaintiff, that a motorist has the right to assume that her passage will not be blocked with the illegal placement of another vehicle, and the motorist is not required to maintain such control of her vehicle as to stop before striking an obstruction which she has the right to assume will not be there.

Law and Analysis

(1) Trial Court’s Failure to Grant Directed Verdict

When deciding a motion for directed verdict, the standard the trial court and appellate court must use is well settled. The Tennessee Supreme Court stated the standard as follows:

In ruling on the motion, the court must take the strongest legitimate view of the evidence in favor of the non-moving party. In other words, the court must remove any conflict in the evidence by construing it in the light most favorable to the non-movant and discarding all countervailing evidence. The court may grant the motion only if, after assessing the evidence according to the foregoing standards, it determines that reasonable minds could not differ as to the conclusions to be drawn from the evidence. If there is any doubt as to the proper conclusions to be drawn from the evidence, the motion must be denied.

Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.1994) (citations omitted).

From the record in this case, it appears that the evidence was clearly susceptible to more than one interpretation. At trial, the jury heard controverted evidence regarding the orientation and position of the van in the roadway; the condition of the roadway; the speed of Ms. Ricketts’ vehicle; the distance from the crest of the hill to the point where the van was stopped; and the amount of roadway clearance between the van and the ditch. Defendants presented testimony that Ms. Ricketts was driving at a speed of forty to forty-five miles per hour as she came over the hill, an arguably unreasonable speed based upon the road conditions. Defendants testified that Ms. Robinson’s van was only extended approximately two feet across the centerline. Defendants further testified that had Ms. Ricketts been driving at a slower speed, she could have stopped before reaching the van or safely driven between the van and the ditch. Viewing the evidence in the light most favorable to the non-moving party, we find the trial court did not err in denying the motion for a directed verdict.

(2) Unavoidable Accident Jury Instruction

Ms. Ricketts argues on appeal that she was prejudiced by the trial court instructing the jury on the unavoidable accident doctrine. As part of its entire charge, the trial court instructed the jury as follows:

An unavoidable or inevitable accident is such an occurrence or happening that under all attending circumstances and conditions could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned. In other words, where there is no evidence that the operator of the motor vehicle was negligent in any way or that he could have anticipated the result of an accident, the accident is deemed to have been an unavoidable or inevitable one.

The trial court has a duty to instruct the jury on every factual issue and theory of the case presented by the parties. Cole v. Woods, 548 S.W.2d 640, 642 (Tenn.1977); see also Grissom v. Metro. Gov’t of Nashville, 817 S.W.2d 679, 685 (Tenn.Ct.App. 1991). Whether a jury instruction is proper is a mixed question of law and fact, “determined from the theories of the parties, the evidence in the record and the law applicable thereto.” Solomon v. First Am. Nat’l Bank of Nashville, 774 S.W.2d 935, 940 (Tenn.Ct.App.1989). We have stated the particular standard we use to examine a trial court’s jury charge as follows:

We review the jury charge in its entirety to determine whether the trial judge committed reversible error. Jury instructions are not measured against the standard of perfection. The charge will not be invalidated if it “fairly defines the legal issues involved in the case and does not mislead the jury.” Furthermore, a particular instruction must be considered in the context of the entire charge.

City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn.Ct.App. 1996) (citations omitted).

Tennessee has long recognized the doctrine of unavoidable accident. Nelson v. Richardson, 626 S.W.2d 702 (Tenn.Ct.App. 1981). An unavoidable accident has been defined as an event that, “under all attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.” Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn.Ct.App.1994)(quot-ing 7A Am.Jur.2d Automobiles and Highway Traffic § 397, at 607-08). Since the adoption of comparative fault in Tennessee, however, an instruction on the doctrine of unavoidable accident has become, in large part, unnecessary. Id. at 869. In Whitaker, this Court stated, an “ ‘unavoidable accident’ in its simplest terms is nothing more than a lack of negligence on the part of any party.” Id. Further, the Whitaker court stated, an “adequate instruction on negligence alone is sufficient and an ‘unavoidable accident’ charge is unnecessary except in, perhaps, the most unusual circumstance.” Id.

At the close of the evidence, the trial court addressed Ms. Ricketts’ objection to the proposed unavoidable accident instruction. In that colloquy, the trial judge explained that he was going to charge unavoidable accident because “it look[ed] like to [him] from hearing the evidence that she got in trouble when she got halfway up the hill and couldn’t go up or down.” In addition to charging unavoidable accident, the trial court gave the jury a complete instruction on the legal principles of negligence and comparative fault. The trial court, utilizing the Tennessee Pattern Jury Instructions, instructed the jury that whether certain instructions applied depended on the factual conclusions reached by the jury. After deliberating, the jury returned a verdict of zero percent (0%) fault as to all parties.

On appeal, Ms. Ricketts argues that she was prejudiced by the inclusion of the unavoidable accident instruction. She argues that the instruction did not apply to the facts of this case because Ms. Robinson could have foreseen or anticipated the difficulties she experienced when she consciously attempted to drive up the hill while the road conditions were questionable. Ms. Ricketts further argues that the jury’s verdict of zero percent (0%) fault, in effect, shows that the jury believed the accident was unavoidable and no party was at fault. The jury’s verdict of zero percent (0%) fault indicates either they found this accident to be unavoidable, or, just as easily, that they found neither party carried their burden of proving negligence on the part of the other party. This Court, however, can only speculate as to the jury members’ thought processes.

The trial court’s instructions thoroughly and fairly defined the legal principles respecting comparative fault. In light of the evidence in this case and in context of the entire charge, we find the trial court did not err in instructing the jury on the unavoidable accident doctrine.

(3) Failure to Instruct Jury that Motorist has Right to Assume that Passage will not be Blocked

Ms. Ricketts argues that the trial court erred by failing to charge the jury that a motorist has a right to assume that her passage will not be blocked, and that a motorist is not required to maintain such control of her vehicle as to stop before striking an obstruction which she has a right to assume will not be there. In forming her proposed instruction, Ms. Ricketts relied on language excerpted from the cases of Barr v. Charley, 215 Tenn. 445, 887 S.W.2d 614, 617 (1965) and Fontaine v. Mason Dixon Freight Lines, 49 Tenn.App. 598, 357 S.W.2d 631, 634 (1962). It is important to note that both of these cases were contributory negligence cases decided before Tennessee’s adoption of comparative fault. In addressing Ms. Ricketts’ proposed special instruction, the trial judge stated that he did not think the charge was proper. The trial court reasoned that the jury instructions included the many rules of the road regarding a motorist’s right-of-way, which formed a basis for the plaintiffs complaint.

In general, a trial court should give a requested jury instruction if it is supported by the evidence, embodies the party’s theory, and is an accurate statement of the law. Tallent v. Fox, 24 Tenn. App. 96, 141 S.W.2d 485, 497. Where the trial court fully and fairly charges the jury on the applicable law, the denial of a special request for an additional jury instruction will not be reversed on appeal. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 445 (Tenn.1992). Without determining whether the proposed instruction in this case was a correct statement of the law, we find the trial court’s charge, read as a whole, fully addressed the applicable law controlling this issue raised by Ms. Ricketts.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment. Costs of this appeal are taxed against the appellant, Ms. Marsha Ricketts, and her surety, for which execution may issue if necessary.

      . In support of her claims for negligence per se, Ms. Ricketts alleged that Defendants violated certain sections of the Tennessee Code, including, but not limited to, the following:
      Upon all roadways of sufficient width, a vehicle shall be driven upon the right side of the roadway.. ..
      Tenn.Code Ann. § 55-8-115(a).
      Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one (1) line of traffic in each direction, each driver shall give to the other at least one-half (½) of the main-traveled portion of the roadway as nearly as possible.

        Id. § 55-8-116.
      No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
      (1) When approaching the crest of a grade or upon a curve in the highway where the driver’s view is obstructed within three hundred feet (300') or such distance as to create a hazard in the event another vehicle might approach from the opposite direction!)]

        Id. § 55-8-120(a)(l).
      Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
      (1) A vehicle shall be driven as nearly as practicable entirely within a single lane[.]

        Id. § 55-8-123.
      No vehicle shall be turned so as to proceed in the opposite direction upon any curve, or upon the approach to or near the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred feet (500’).

        Id. § 55-8-141(a).

      . The trial court included Tennessee Pattern Jury Instruction, Civil 15.11, titled All Instructions Not Necessarily Applicable, which states as follows:
      The Court has given you various rules of law to help guide you to a just and lawful verdict. Whether some of these instructions will apply will depend upon what you decide are the facts. The Court’s instructions on any subject [including instructions on damages], must not be taken by you to indicate the Court’s opinion of the facts you should find or the verdict you should return.
      T.P.I. — Civil 15.11.


author: WILLIAM C. KOCH, JR., P.J., M.S., WILLIAM B. CAIN, and FRANK G. CLEMENT, JR., JJ., PER CURIAM.

text:
    STATE ex rel Karl F. DEAN v. John Aaron NELSON, et al.
    No. M2004-02509-COA-R10-CV.
    Court of Appeals of Tennessee, at Nashville.
    Nov. 18, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.

      John E. Herbison, Nashville, TN, for John Aaron Nelson and 1231 Corporation.
    Karl P. Dean and J. Douglas Sloan, III, Nashville, TN, for the State of Tennessee.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S., WILLIAM B. CAIN, and FRANK G. CLEMENT, JR., JJ.,

delivered the opinion of the court.

PER CURIAM.

This extraordinary appeal involves the efforts of the Metropolitan Government of Nashville and Davidson County to close an adult business where acts of prostitution and lewdness were allegedly occurring. At the City’s request, the Criminal Court for Davidson County issued an ex parte temporary restraining order immediately padlocking the business. Following a hearing one week later, the trial court entered a second order stating that the temporary restraining order would “remain binding and in effect pending a trial.” The owner of the adult business filed a Tenn. R.App. P. 10 application with this court. We have concluded that the trial court departed from the accepted and usual course of judicial proceedings in two respects. First, the court violated Tenn. Code Ann. § 29-3-106(a) (2000) by issuing the temporary restraining order without five days written notice. Second, the trial court violated Tenn. R. Civ. P. 65.03(5) by allowing the temporary restraining order to remain in effect pending the trial. Accordingly, we grant the owner’s Tenn. RApp. P. 10 application and vacate the order padlocking the premises.

I.

John Aaron Nelson and 1231 Corporation operate an adult business called Madam X at 701 Twelfth Avenue, South in Nashville. On September 21, 2004, Karl F. Dean, the Director of Law for the Metropolitan Government of Nashville and Davidson County, filed a petition in the Criminal Court for Davidson County to abate Madam X as a public nuisance under Tenn.Code Ann. §§ 29-3-101 to -115 (2000 & Supp.2004). The petition and supporting affidavits asserted that Mr. Nelson and 1231 Corporation were permitting acts of prostitution and other lewd acts to occur on their business premises. At the City’s request, the trial court considered the petition ex parte and issued a temporary restraining order directing the authorities to padlock the premises immediately pending a hearing on September 28, 2004.

On September 27, 2004, Mr. Nelson and 1231 Corporation moved to dissolve the ex parte restraining order or, in the alternative, to modify the order to exempt the retail sales area of the premises where books, magazines, and other items were sold. The trial court considered their motion during the September 28, 2004 hearing, and on October 4, 2004, entered an order directing that its September 21, 2004 temporary restraining order “remain binding and in effect pending a trial in this matter.” Mr. Nelson and 1231 Corporation subsequently filed this Tenn. R.App. P. 10 application for an extraordinary appeal.

On October 26, 2004, we ordered the City to file an answer to the application pursuant to Tenn. R.App. P. 10(d) and directed the criminal court clerk to prepare and file a record. Following the receipt of the record and answer, we directed both parties to file supplemental briefs addressing the following issues:

(1) Whether the trial court erred by granting the Metropolitan Government an ex parte temporary restraining order on September 21, 2004, immediately padlocking the premises at 701 Twelfth Avenue, South, when Tenn.Code Ann. § 29-3-106(a) (2000) and Tenn. R. Civ. P. 65.07 required the Metropolitan Government to give Mr. Nelson and 1231 Corporation five days written notice of its application.
(2) Whether Mr. Nelson and the 1231 Corporation have currently sustained a legally cognizable injury from the entry of the September 21, 2004 order when the trial court, following notice and a hearing, issued a second order on October 4, 2004, maintaining the earlier order in effect.

The supplemental briefs were filed on November 5 and November 8, 2004.

II.

Proceedings to abate a nuisance are governed by Tenn.Code Ann. §§ 29-3-101 to -115. When a petition to abate a nuisance has been filed, TenmCode Ann. § 29-3-105(a) permits the court to “award a temporary writ of injunction, enjoining and restraining the further continuance of such nuisance, and the closing of the building or place wherein the same is conducted until the further order of the court, judge, or chancellor.” However, TenmCode Ann. § 29-3-106(a) requires that “five (5) days’ notice in writing shall be given the defendant of the hearing of the application [for the temporary -writ of injunction].” The City acknowledges the requirements of Tenn.Code Ann. § 29-3-106(a) but contends that the statute is inapplicable in this case because the September 21, 2004 order was a temporary restraining order, not a temporary injunction. The City insists that Tenn. R. Civ. P. 65.03 expressly permits the issuance of ex parte temporary restraining orders without notice to the defendants.

We agree that the court’s September 21, 2004 order is properly characterized as a temporary restraining order rather than as a temporary injunction. We do not, however, agree that temporary restraining orders issued in actions to abate a public nuisance are not subject to the notice requirement in Tenn.Code Ann. § 29-3-106(a). Both TenmCode Ann. § 29-3-105(a) and TenmCode Ann. § 29-3-106(a) were enacted prior to the promulgation of the Tennessee Rules of Civil Procedure. Thus, their references to a “temporary writ of injunction” were not intended to draw the technical distinction between temporary restraining orders and temporary injunctions drawn in today’s rules.

The clear intent of TenmCode Ann. § 29-3-106(a) is to require notice to a defendant before an order may be entered “enjoining and restraining” a nuisance or effecting “the closing of the building or place wherein the same is conducted.” The subsequent adoption of Tenn. R. Civ. P. 65 did not alter this notice requirement. Tenn. R. Civ. P. 65.07 specifically provides that “[t]he provisions of this rule shall be subject to any contrary statutory provisions governing restraining orders or injunctions.” The City’s interpretation would make the five-day notice requirement functionally meaningless, while the clear intent of Tenn. R. Civ. P. 65.07 was to preserve such statutory provisions. Accordingly, we hold that the right to obtain a temporary restraining order abating a nuisance pursuant to Tenn. R. Civ. P. 65 is subject to the five-day notice requirement of TenmCode Ann. § 29-3-106(a).

We are likewise unpersuaded by the City’s argument that the five-day notice requirement leaves it powerless to stop illegal activities for at least five days. If illegal activities are occurring on the premises, the City may immediately arrest the individuals involved. The City remains free to enforce the criminal laws. It simply may not padlock the business as a nuisance without giving prior written notice. We also note that, despite the urgency expressed in the City’s petition and its filings before this court, it appears from the affidavits in support of the petition that the City knew of the alleged illegal acts for several weeks or even months before it filed its petition.

Mr. Nelson and the 1231 Corporation sustained a legally cognizable injury as a result of the entry of the September 21, 2004 order, notwithstanding the trial court’s entry of the second order on October 4, 2004, following notice and a hearing. The ex parte order deprived them of five days use of their premises. It deprived them of the opportunity to assemble proof to refute the allegations in the City’s petition. Moreover, had proper notice been given, the trial court would have had an opportunity to write a more precise order defining what rights, if any, the business owners may have had to remove presumptively protected material from the premises.

III.

The City also insists that any possible injury caused by the entry of the September 21, 2004 temporary restraining order ended when the trial court conducted a hearing and then entered an order on October 4, 2004, directing that its temporary restraining order “remain binding and in effect pending a trial in this matter.” This argument overlooks the fact that the trial court’s October 4, 2004 order does not comply with Tenn. R. Civ. P. 65.08(5).

The transcript of the September 28, 2004 hearing reflects that its chief purpose was to permit the business owner to present his motion either to dissolve or to modify the September 21, 2004 temporary restraining order. At no time during the hearing did the City request the trial court to grant it a temporary injunction closing the business pending the trial. Accordingly, rather than issuing a temporary injunction in accordance with Tenn. R. Civ. P. 65.04, the trial court’s October 4, 2004 order simply directed that the September 21, 2004 temporary restraining order “remain binding and in effect pending a trial in this matter.”

Tenn. R. Civ. P. 65.03(5) provides that a temporary restraining order issued without notice expires within fifteen days after its issuance unless the trial court extends it during that period. If a trial court decides to extend a temporary restraining order, it may do so for only fifteen additional days. The trial court’s September 21, 2004 temporary restraining order could have remained in effect until October 21, 2004. Thus, the trial court erred by directing that it “remain binding and in effect” past that date. It follows, therefore, that the trial court’s order, to the extent that it continued its temporary restraining order past October 21, 2004, is contrary to Tenn. R. Civ. P. 65.03(5) and must be vacated.

IV.

The business owners’ application for an extraordinary appeal is hereby granted, and the trial court’s September 21, 2004 and October 4, 2004 orders are vacated without prejudice to the City’s seeking a new temporary injunction after giving proper notice as required by Tenn.Code Ann. § 29-3-106(a). The case is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed to the Metropolitan Government of Nashville and Davidson County for which execution, if necessary, may issue.

      . The Tenn. R.App. P. 10 application, the answer, the record, and the supplemental briefs fully set forth the parties’ positions and the material facts. Therefore, pursuant to Tenn. R.App. P. 2, we suspend the application of Tenn. R.App. P. 29, and find oral argument to be unnecessary pursuant to Tenn. R.App. P. 35(c). See Hammock v. Sumner Co., No. 01 AO 1-9710-CV-00600, 1997 WL 749461 (Tenn.Ct.App. Dec.5, 1997) (No Tenn. R.App. P. 11 application filed).

      . Mr. Nelson's and 1231 Corporation's motion for leave to file their supplemental brief one day late is hereby granted.

      . Tenn. R. Civ. P. 65.03(1) provides: “A restraining order may be granted at the commencement of the action or during the pen-dency thereof without notice, if it is clearly shown by verified complaint or affidavit that the applicant’s rights are being or will be violated by the adverse party and the applicant will suffer immediate and irreparable injury, loss or damage before notice can be served and a hearing had thereon.”

      . Had the October 4, 2004 order not violated Tenn. R. Civ. P. 65.03(5), we would still have determined that the later hearing and order did not render the business owner’s complaints about the September 21, 2004 order moot. The courts may determine that a case remains justiciable when it involves an issue that is capable of repetition yet evades review. Bemis Pentecostal Church v. State, 731 S.W.2d 897, 903 (Tenn. 1987); National Loans, Inc. v. Tennessee Dept, of Financial Institutions, No. 01 AO 1-9506-CH-00241, 1997 WL 194992, at ⅜4 n.3 (Tenn.Ct.App. Apr.23, 1997) (No Tenn. R.App. P. 11 application filed). It is unlikely that a business owner adversely affected by an ex parte temporary restraining order issued in violation of Tenn.Code Ann. § 29-3-106(a) could obtain appellate review of the order before the entry of a later temporary injunction issued in accordance with Tenn. R. Civ. P. 65.04.


author: Justice OWEN

text:
    In re TEXAS ASSOCIATION OF SCHOOL BOARDS, INC. and Texas Association of School Boards Risk Management Fund, Relators.
    No. 03-1151.
    Supreme Court of Texas.
    Argued Sept. 30, 2004.
    Decided May 13, 2005.
    Rehearing Denied Sept. 16, 2005.

      Bruce Edwin Ramage, Dale Jefferson, Levon G. Hovnatanian, Robin I. Krumme, Christopher W. Martin, Dale Jefferson, Martin Disiere Jefferson & Wisdom, L.L.P., Houston, Francisco Enriquez, Law Offices of Frank Enriquez, McAllen, TX, for Relators.
    Mark C. Brodeur, Brodeur & Evans, P.L.L.C., Charles Lee Barrera, Barrera & Barrera, Alice, and Roland L. Leon, Stephen Jeffrey Chapman, Barker Leon Fancher & Matthys, LLP., Corpus Christi, TX, for Real Party.
   Justice OWEN

delivered the opinion of the Court.

In this mandamus proceeding, the Texas Association of School Boards, Inc. and the Texas Association of School Boards Risk Management Fund seek to have a suit against them transferred from Duval County to Travis County based on a contractual choice of venue provision in a risk coverage agreement that is similar to an insurance contract. They assert that the agreement is a “major transaction” within the meaning of section 15.020 of the Civil Practice and Remedies Code. Section 15.020 is a mandatory venue provision. If there is a written agreement that suit arising from a “major transaction” may be brought in a particular county, suit must be brought in that county. A “major transaction” is “a transaction evidenced by a written agreement under which a person pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate stated value equal to or greater than $1 million.” The relators agreed to provide more than $17 million in risk coverage at a cost of $41,973 per year. The trial court declined to enforce the parties’ venue agreement without stating its reasons, and the court of appeals denied mandamus relief. We likewise deny mandamus relief. The mandatory venue provision in section 15.020 is inapplicable because the coverage agreement is not a “major transaction.”

I

The Texas Association of School Boards Risk Management Fund (the Fund) is a nonprofit, statewide administrative agency consisting of cooperating public school districts in Texas. The Fund offers self-funded liability coverage plans to education-based political subdivisions. The Texas Association of School Boards (TASB) is the Fund’s servicing contractor and provides services including the investigation and handling of property loss claims.

In October 2000, Benavides Independent School District (BISD) and the Fund entered into an “Interlocal Participation Agreement” under which the Fund agreed to provide vehicle and general liability coverage as well as coverage for certain casualty losses to property in return for an annual contribution from BISD. The term of the agreement was for one year, automatically renewable for two successive one-year terms, with the coverage and contribution amounts adjusted annually.

The coverage was renewed for the first renewal term, and during that term, coverage for potential losses or liabilities was in excess of $17,000,000 for an annual contribution of $41,973. In their briefing in this Court, the parties have segregated the annual amount paid for coverage of up to $15,309,822 for casualty loss to buildings, personal property, and auxiliary structures — $33,069—from the annual amount paid for all other coverage — $8,904.

This suit arises from BISD’s claim for indemnity under the parties’ agreement for water damage and other alleged physical losses to every building in its school district, totaling more than $17 million. TASB denied the claim, and BISD appealed to the Fund’s Board of Trustees, which affirmed the denial. BISD then sued the Fund and TASB in Duval County, asserting claims for breach of contract, declaratory relief, deceptive trade practices, unconscionable conduct, negligence, gross negligence, and breach of an alleged duty of good faith and fair dealing. BISD subsequently joined two other defendants, alleging negligence against Roofology Consultants Corp., which provided roofing consultation to BISD for some of the buildings at issue, and alleging tortious interference and civil conspiracy against Pro-Staff Adjusting Services, which investigated BISD’s claims on behalf of the Fund and TASB.

The Fund and TASB filed a motion to transfer venue to Travis County based on a venue provision in the coverage agreement, which states “[t]his agreement shall be governed by and construed in accordance with the laws of the State of Texas, and venue shall he in Travis County, Texas, unless otherwise mandated by law.” The Fund and TASB contend that venue is mandatory in Travis County pursuant to section 15.020 of the Texas Civil Practice and Remedies Code because, they assert, the agreement with BISD is a “major transaction.” That term is defined in section 15.020:

“major transaction” means a transaction evidenced by a written agreement under which a person pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate stated value equal to or greater than $1 million ... [not including] a transaction entered into primarily for personal, family, or household purposes, or to settle a personal injury or wrongful death claim, without regard to the aggregate value.

The Fund and TASB contend that the aggregate stated value of the consideration for the coverage agreement is BISD’s annual contribution plus the coverage limits under the agreement, which would exceed section 15.020’s $1 million threshold. BISD counters that the consideration is only BISD’s $33,069 annual contribution for property casualty loss coverage. Alternatively, BISD asserts that (1) the choice of venue provision is unenforceable because the coverage agreement is unconscionable, (2) its claim is for damage to real property and therefore venue in Duval County is mandatory under section 15.011, or (3) if both sections 15.020 and 15.011 are mandatory, BISD’s choice of venue must be given effect.

The trial court denied the Fund and TASB’s motion to transfer venue without stating its reasons, and the court of appeals summarily denied the Fund and TASB’s petition for writ of mandamus. Because our conclusion that section 15.020 does not apply to the coverage agreement is dispositive of the request for mandamus relief, we do not reach the other issues raised by the parties.

II

If a trial court erroneously denies enforcement of a mandatory venue provision, mandamus relief is available without the necessity of showing an inadequate appellate remedy. Because trial courts have no discretion in determining the legal principles controlling their rulings or in applying the law to the facts, our focus in this case is whether the trial court failed to correctly apply section 15.020.

Construction of section 15.020 is an issue of first impression for this Court. That section provides in its entirety:

§ 15.020. Major Transactions: Specification of Venue by Agreement

(a) In this section, “major transaction” means a transaction evidenced by a written agreement under which a person pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate stated value equal to or greater than $1 million. The term does not include a transaction entered into primarily for personal, family, or household purposes, or to settle a personal injury or wrongful death claim, without regard to the aggregate value.
(b) An action arising from a major transaction shall be brought in a county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county.
(c) Notwithstanding any other provision of this title, an action arising from a major transaction may not be brought in a county if:
(1) the party bringing the action has agreed in writing that an action arising from the transaction may not be brought in that county, and the action may be brought in another county of this state or in another jurisdiction; or
(2) the party bringing the action has agreed in writing that an action arising from the transaction must be brought in another county of this state or in another jurisdiction, and the action may be brought in that other county, under this section or otherwise, or in that other jurisdiction.
(d) This section does not apply to an action if:
(1) the agreement described by this section was unconscionable at the time that it was made;
(2) the agreement regarding venue is voidable under Section 35.52, Business & Commerce Code; or
(3) venue is established under a statute of this state other than this title.
(e) This section does not affect venue and jurisdiction in an action arising from a transaction that is not a major transaction.

The principal dispute in this case is what constitutes the “aggregate stated value” of the “consideration” “which a person pays or receives, or is obligated to pay or entitled to receive” under the parties’ agreement. We have examined the legislative history, and it is silent as to what the Legislature intended on this score. However, the legal concept of “consideration” is well-established, although difficult to distill into a short, concise definition that fits all formations of contracts.

What is clear is that the consideration for an agreement like the one between the Fund and BISD is an exchange of promises. The Fund promised to pay any claims that were covered, up to the coverage limits, if, as, and when they occurred during the specified term. BISD promised to pay $41,973 for this coverage. Although the parties have looked only at the contribution for property damage coverage, which was $33,069, the statute contemplates that the “aggregate” stated value of the consideration a person pays or is obligated to pay is the determinant amount. The aggregate amount BISD agreed to pay under its written agreement with the Fund was $41,973. The “aggregate stated value” of BISD’s promise to pay is thus easily determinable.

The dispute, however, is over the “aggregate stated value” of the Fund’s promise. The Fund contends that this should be measured by the coverage limits. We disagree. The consideration the Fund furnished was its agreement to bear the risk that covered losses might occur. The value assigned in the coverage agreement to the risk the Fund assumed is the $41,973 annual contribution from BISD.

An insurance agreement, like the coverage agreement at issue in this case, is an aleatory contract; that is, a contract in which a promise is conditioned on the happening of a fortuitous event, an event of chance. “The payment of the premium by the insured and the assumption of a specified risk by the insurer are the essential elements of the contract of insurance. The payment ... [of] premiums is the consideration for which the insurer agrees to assume the risk specified in the policy.” In an insurance arrangement,
the insurer is not promising to compensate the insured for an actual, expensive loss in exchange for the relatively small, individual premium paid by the insured. Rather, the insurer is assuming the risk that death or property loss may occur in exchange for the premium payment. Moreover, the parties contemplate that the insured will perform his promise to pay premiums even though the condition to the duty of the insured never occurs. A life insurance contract in the amount of a million dollars must be performed though the insured is struck by lightning and dies after paying only one relatively small premium. Similarly, a homeowner who has paid fire insurance premiums for a lifetime cannot reclaim those premiums because no fire occurred. In fact, both parties hope that the condition will never occur.

“It is characteristic of insurance that a number of risks are accepted, some of which involve losses, and that such losses are spread over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possible liability upon it.” The foundation of insurance is therefore risk distribution, and premiums are a function of calculated risk. As a result, there is no premium due until risk attaches, and once risk has attached premiums have been earned and are nonreturnable, absent a statutory or contract provision to the contrary. Similarly, if risk has never attached because an insurance policy was void ab initio, the insured is entitled to a return of all premiums paid. Thus, the consideration to be valued is the undertaking of the risk that insured losses might occur.

BISD agreed to pay what is in essence a premium of $41,973. That is the value the parties assigned to the risks the Fund assumed. In setting the contribution or premium amount, TASB’s underwriting department considered BISD’s loss ratio for the preceding three years, the territory, the protection class and the location. The aggregate stated value of the consideration for the coverage agreement is the amount of the contribution specified in the agreement for assumption of the risk of loss from the enumerated perils, not the coverage limits.

The Fund and TASB argue that this Court held in Mid-Century Insurance Co. of Texas v. Kidd that insurance policy coverage limits are the consideration an insurer gives in exchange for premium payments. In Kidd, the issue was whether an insurer was entitled to enforce a contractual provision in an uninsured/un-derinsured motorist (UM/UIM) policy, requiring any damages paid under that policy to be offset by the amount of any benefits paid to the insured under a personal-injury-protection (PIP) policy. We held that the insurer was entitled to an offset in order to prevent recoveries in excess of actual damages. In addressing an argument that allowing an offset would result in a failure of the consideration exchanged for the insured’s PIP premiums, we said:

UM/UIM and PIP coverages are complementary and indemnify insureds against different risks. UM/UIM coverage indemnifies insureds against only those damages proximately caused by the other driver’s negligence. PIP coverage, by contrast, also covers damages attributable to the insured’s own negligence. Also, the policy's UM/UIM and PIP limits may be aggregated to the extent needed to compensate actual damages. In sum PIP provides protection that UM/UIM does not. This additional coverage is consideration for the PIP premiums paid.

The emphasized sentence correctly recognized that the agreement to provide PIP coverage of up to a certain amount for the insured was consideration for the additional amount of premium paid. The promise to indemnify an insured if an injury occurs is the consideration for the premiums paid.

We conclude that the trial court did not err in refusing to enforce the contractual choice of venue provision under section 15.020 of the Civil Practice and Remedies Code. Accordingly, the petition for writ of mandamus is denied.

Justice GREEN and Justice JOHNSON did not participate in the decision.

      . Tex. Civ. Prac. & Rem.Code § 15.020.

      . Id. § 15.020(b).

      . Id. § 15.020(a).

        .In re Tex. Ass’n of Sch. Bds., Inc., 161 S.W.3d 517 (Tex.App.-San Antonio 2003, orig. proceeding) (per curiam).

      . Tex. Civ. Prac. & Rem.Code § 15.020(a).

        . The agreement provided for "$15,309,822 Blanket Replacement Cost Limit on Buildings, Personal Property and Auxiliary Structures" for a contribution of $33,069; “General Liability" including "Personal Injury and Employee Benefits Liability” with a $1,000,000 per occurrence limit for a contribution of $825; "School Professional Legal Liability" with a $1,000,000 annual aggregate limit for a contribution of $3,964; “Vehicle Coverage” “Fleet Liability” with $100,000 per person and $300,000 per occurrence limits for bodily injury and $100,000 property damage limits, for a contribution of $2,286; "Vehicle Coverage” "Physical Damage — Actual Cash Value” “Private Passenger” "Comprehensive” for a contribution of $129 and "Collision” for a contribution of $483; "Vehicle Coverage” "Physical Damage — Actual Cash Value" "All other vehicles (Buses, Trucks, Trailers and Vans)” "Specified Perils” for a contribution of $509 and "Collision” for a contribution of $708.

      . Id.

      . See id. § 15.020(d)(1) ("[Section 15.020] does not apply to an action if: (1) the agreement described by this section was unconscionable at the time that it was made.”).

      . See id. § 15.011 (“Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.”).

      . In re Tex. Ass’n of Sch. Bds., Inc., 161 S.W.3d 517 (Tex.App.-San Antonio 2003, orig. proceeding) (per curiam).

      . Tex. Civ. Prac. & Rem.Code § 15.0642 (authorizing application for a writ of mandamus to enforce mandatory venue provisions); see also In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999) (inadequate appellate remedy is not a prerequisite to mandamus relief under Tex Civ. Prac. & Rem.Code § 15.0642).

      . See In re Mo. Pac. R.R. Co., 998 S.W.2d at 216.

      . Tex. Civ. Prac. & Rem.Code § 15.020.

      . Id. § 15.020(a).

      . See, e.g., Lord, Williston on Contracts, § 7:2, at 18-20, § 7:4, at 36-41, 47 (4th ed.1992). Sections 7:2 and 7:4 provide:
      [A] third underlying basis for the enforcement of promises is the notion of a bargained-for exchange, and the meaning of consideration here is the idea that the consideration is the exchange or price requested and received by the promisor for his promise. Today, this notion represents the fundamental and generally accepted idea of consideration, and it is in this sense that the word is used in this treatise.

      It is often stated that the consideration required to support a promise is a detriment incurred by the promisee or a benefit received by the promisor at his request. Both the drafters of the First Restatement and more explicitly the Second Restatement, [sic] assert that neither a benefit nor a detriment is necessary and that all that is required is a bargained-for exchange. However, the case law on the subject belies that assertion, the courts in general insisting that either a detriment incurred by the promisee or a benefit received by the prom-isor at the request of the promisor exist before consideration will be found.
      Both benefit and detriment in this context have a technical meaning. Neither the benefit to the promisor nor the detriment to the promisee need be actual; rather, it is a sufficient legal detriment to the promisee if he promises or performs any act, regardless of how slight or inconvenient, which he is not obligated to promise or perform so long as he does so at the request of the promisor and in exchange for the promise....

      By the same token, the term benefit means the receiving as the exchange for a promise some performance or forbearance which the promisor was not previously entitled to receive. That the promisor desired it for his own advantage and had no previous right to it is enough to show that it was beneficial.

        Id. (citations omitted).

      . See id.; see also Restatement (Second) of Contracts § 71 (1981) (explaining the need for a bargained-for exchange of promises or performance). Section 71 of the Restatement provides:
      § 71 Requirement of Exchange; Types of Exchange(l) To constitute consideration, a performance or a return promise must be bargained for.
      (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
      (3) The performance may consist of (a) an act other than a promise, or(b) a forbearance, or(c) the creation, modification, or destruction of a legal relation.
      (4) The performance or return promise may be given to the promisor or to some other person. It may be given by the prom-isee or by some other person.
      Restatement (Second) of Contracts § 71 (1981).

      . Murray, Murray on Contracts § 98(G), at 590, § 105(C), at 663 (4th ed.2001).

      . Couch on Insurance 3d § 69:2 (1996) (citations omitted).

      . Murray on Contracts § 105(C), at 663 (citations omitted).

      . 1 Couch, Cyclopedia of Insurance Law § 1.3 (2d ed.1959).

      . Holmes et al„ Holmes’s Appleman on Insurance, 2d § 1.2, at 3-4 (1996) ("At its core essence, risk is the Mother Mold of Insurance .... In a superficial way, insurance is generally understood as risk sharing through consensual arrangements which transfer and distribute risks among the consenting parties.”); see also Keeton et al.. Insurance Law §§ 1.2, 1.3 (1988) (observing that insurance is an arrangement for transferring and distributing risk).

      . Holmes, Holmes' Appleman on Insurance 2d § 33.8, at 611-12 (1998); see also Rosenstock v. Wheeler, 310 S.W.2d 350, 353 (Tex.Civ. App.-Houston 1958, writ ref'd) ("A premium is the consideration paid by a person for insurance protection or coverage. When the policy of insurance is cancelled, he is without coverage and he is entitled to a refund of the consideration he has paid for the coverage for the period of time the coverage was not in force.”).

      . See Am. Nat’l Ins. Co. v. Smith, 13 S.W.2d 720, 723 (Tex.Civ.App.-El Paso 1929, writ ref’d) (" '[P]remiums paid upon a void policy of insurance may be recovered because "the underwriter receives a premium for running the risk of indemnifying the insured, and whatever cause it may be owing to, if he does not run the risk the consideration for which the premium or money was paid into his hands fails, and therefore he ought to return it.” ’ ” (quoting Metro. Life Ins. Co. v. Felix, 73 Ohio St. 46, 75 N.E. 941, 942 (Ohio 1905))).

      . 997 S.W.2d 265 (Tex.1999).

      . Id. at 267.

      . Mat 277.

        .Id. at 275 (emphasis added and citation omitted).