http://caselaw.findlaw.com/sc-court-of-appeals/1370494.

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Court of Appeals of South Carolina.

Denise SMITH-COOPER, Respondent, v. James L. COOPER, Jr., Appellant.
3295. No.
Decided: February 12, 2001
James G. Long, III, of Nexsen, Pruet, Jacobs & Pollard, of Columbia, for appellant. Frank B. Register, Jr., of Cooper, Register &
Krajack, of Lexington, for respondent.

We affirm in part and reverse and remand. James L. Cooper, Jr. (Husband) appeals from a family court order finding the provisions
of a property settlement and support agreement nonmodifiable and holding him in contempt for failure to comply with the provisions
of the agreement.
The agreement obligates Husband to pay $260 in alimony to Wife every other week, as well as numerous other expenses for Wife,
including: the mortgage on Wife's residence, assistance with the costs of repairs and maintenance on Wife's residence, land option
payments, automobile insurance, health insurance, uninsured medical expenses, and life insurance. On August 26, 1994, the
parties executed a property settlement and support agreement which the family court approved and incorporated into the divorce
decree. Husband and Denise Smith-Cooper (Wife) were married in 1987 and divorced on September 26, 1994. 1 The agreement
further provides:
As any of the above expenses are paid in full or the obligation no longer exists, Husband is no longer obligated to make these
payments and the total amount of his monthly obligation to Wife will be reduced accordingly.

The ultimate goal of both parties is that at some future time, Wife will become totally self-sufficient and will not require any
assistance from Husband. If at any time Wife receives social security disability benefits or becomes employed in a full time
capacity, all amounts received from the sources, after 6 months of such receipt, shall be reduced from Husband's total obligation at
that time by the amount Wife receives from the sources
The parties also expressly agreed that this agreement shall not be modifiable by any court without the consent of both parties and
that all modifications must be in writing and signed by both parties.
In October 1998, the Social Security Administration again denied her claim. After the commencement of this action, Wife hired an
attorney to pursue a second claim for social security benefits. She did not appeal. In February 1996, the Social Security
Administration denied her application. In October 1995, Wife applied for social security disability benefits, claiming she became
disabled in January 1991, due to irritable bowel syndrome and depression.
Wife's health insurance, which was ac He received two weeks severance pay, payment for his accrued sick leave, and
unemployment benefits in the amount of $224.00 per week for several months. In January 1998, Husband lost his job. quired
through Husband's employment, expired in January 1998.
Prior to the hearing, Husband brought an action against Wife for modification or termination of his alimony obligation. Wife
petitioned the family court for a rule to show cause why Husband should not be held in contempt for failure to comply with the
support provisions of the agreement.
The court ordered Husband (1) to continue paying Wife's mortgage and be responsible for the upkeep, maintenance and repairs on
the property, and (2) to continue paying Wife alimony and satisfy an alimony arrearage of $1,720. By order dated March 11, 1999,
the family court found the agreement was not modifiable and held Husband in contempt. The consolidated cases were tried before
the family court on January 4, 5, and 6, 1999.
This appeal followed. The family court denied Husband's post-trial motion for reconsideration. Finally, the family court awarded
Wife $7,500 in attorney fees. The court ordered Husband to contribute $70 every other week to Wife for the cost of counseling.
Additionally, the family court directed Wife to undergo psychiatric counseling in order that she overcome her medical and
psychological problems in an effort to become employed. In addition, the family court ordered Husband to obtain health insurance
for Wife, provided that his liability for her uninsured medical expenses would continue until he obtained insurance coverage on her
behalf. The court ordered Husband to pay all of Wife's outstanding medical and dental expenses, including reimbursing her for
medical bills she paid and for outstanding bills due. The court further found Husband allowed Wife's health insurance to lapse
without informing her of her right to obtain COBRA coverage from his former employment.
SCOPE OF REVIEW
Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981). Neither are we required to ignore the fact that the trial
judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their
testimony. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). This broad scope of review does not,
however, require this court to disregard the findings of the family court. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d
157, 160 (1992). In appeals from the family court, this court has the authority to find facts in accordance with its own view of the
preponderance of the evidence.
DISCUSSION
Judicial Modification of Agreement I.
We agree. Husband asserts the family court erred in finding the agreement may not be judicially modified.
338, at 345 (1991). Bruce v. Blalock, 241 S.C. 155, 160, 127 S.E.2d 439, 441 (1962); 17A Am.Jur.2d Contracts A contract is
ambiguous when it is capable of more than one meaning or when its meaning is unclear. Ebert v. Ebert, 320 S.C. 331, 338, 465
S.E.2d 121, 125 (Ct.App.1995); Mattox v. Cassady, 289 S.C. 57, 60-61, 344 S.E.2d 620, 622 (Ct.App.1986). However, where an
agreement is ambiguous, the court should seek to determine the parties' intent. Bogan v. Bogan, 298 S.C. 139, 142, 378 S.E.2d
606, 608 (Ct.App.1989). Generally, where an agreement is clear and capable of legal construction, the court's only function is to
interpret its lawful meaning and the intent of the parties as found within the agreement.
Moreover, the alimony provision states: The ultimate goal of both parties is that at some future time, Wife will b However, the
alimony portion of the agreement clearly and unambiguously envisions that Husband's alimony obligation will be reduced as Wife
receives social security disability benefits or becomes employed. Here, one portion of the agreement reads: The parties agree
that this agreement shall not be modifiable by any court without the consent of both parties. ecome totally self-sufficient and will
not require any assistance from Husband.
In the face of such clearly expressed intent, we hold it was error for the family court judge to rule that he was without authority to
modify the alimony provisions of the agreement. In fact, during the hearing to approve the parties' agreement, Wife's counsel
stated that Husband would continue to pay alimony until disability kicks in or until she becomes capable of going back to work. It
is clear that the parties intended their agreement regarding alimony would be modified downward as Wife became more self-
sufficient. However, this construction of the agreement completely eviscerates the portions of the agreement concerning the
reduction of Husband's alimony obligation as Wife receives social security disability benefits or becomes employed. The family
court judge found he could not modify the alimony provisions of the agreement because of the clause relating to non-modifiability.
Our reading of the agreement convinces us that it specifically and unequivocally provided for the downward modification of
Husband's alimony obligation. It also encourages Wife to exert little or no effort to become employed. The family court's ruling
regarding non-modifiability places Husband in the untenable position of being unable to obtain relief so long as Wife neither receives
social security disability benefits nor becomes gainfully employed.
This was clearly error. Thus, despite the family court's ruling that the agreement was non-modifiable, the court modified the
agreement by requiring Husband to be 100% responsible for the payment of the repairs. The family court established a procedure
whereby Wife was to provide Husband with estimates from contractors concerning any repairs to the property, and further provided
that if Husband did not find a contractor himself within thirty days, he shall then be required to pay the estimated costs to the
contractor upon completion of the job. The agreement provided that, with respect to the marital residence, Husband will assist in
paying costs of maintenance and repairs. This was error. While the family court refused Husband's request for modification, it
increased Husband's alimony obligation beyond that contemplated by the parties' agreement.
The family court's order is reversed to the extent it provides a procedure to facilitate Husband's assistance with repairs and
maintenance of the home and requires Husband to be fully responsible for these expenses. Under our reading of the agreement,
the parties contemplated that any modification to the agreement would be a downward modification of Husband's obligations, not an
upward modification.
Accordingly, that portion of the order is reversed. The family court's order thus impermissibly enlarges Husband's alimony
obligation to Wife, something which was not contemplated by the parties' agreement. Although the agreement provides that
Husband is to be responsible for uncovered medical, dental and prescriptions, counseling is not included within this language. In
the provision relating to Husband's maintenance of health insurance for the benefit of Wife, the agreement provides that Husband
will be responsible for all deductible amounts incurred by Wife on the applicable health insurance policy for any physical exam, any
diagnostic proceeding and any necessary treatment up to a total amount equal to the insurance deductible per year. Likewise, the
family court's mandate that Husband pay Wife $70 every other week towards the cost of Wife's counseling was erroneous.
Imputation of Income II.
While we do not reach Husband's allegations of bad faith, we agree that the family court failed to consider the question of Wife's
employability. Husband also asserts the family court erred in failing to impute income to Wife. He alleges Wife has acted in bad faith
and that her delay and unwillingness to pursue her claim has irreparably prejudiced her ability to acquire disability benefits as
contemplated by the parties.
Dr. Ronald Steen testif Her conditions are treated with three antidepressants and medications prescribed to treat anxiety,
abdominal discomfort, abdominal spasms and acidity, diarrhea, and nausea. She also has the Epstein-Barr virus, which causes
symptoms similar to mononucleosis in adults. At the time of trial, Wife was being treated for depression, chronic fatigue syndrome,
irritable bowel syndrome, and gastro-esophageal reflux disease. Since the time of the agreement, Wife asserts she has
unsuccessfully sought employment in her field of expertise on at least three occasions, and has twice attempted to work outside that
field. Dr. Steen opined Wife would never be able to work outside her home due to her illnesses. ied that a person suffering from
these medical disorders would generally not be able to maintain employment.
Apparently because the family court thought to do so would constitute an impermissible modification of the parties' agreement, the
court refused to impute income to Wife. However, he stated she needed vocational rehabilitation and would benefit from mental
health counseling. Leonard testified Wife could perform at a level of employment with a median gross income of $17,160.
Leonard based his opinion on his review of Wife's medical records, her social security file, and her deposition testimony. Husband
presented the testimony of Joel Leonard, a vocational consultant, regarding Wife's capacity to work.
See Micheau v. Micheau, 285 S.C. 527, 529, 331 S.E.2d 348, 349 (1985) (stating that disputed factual issue must be remanded
back to the family court for factual findings); Condon v. Condon, 280 S.C. 357, 360, 312 S.E.2d 588, 589-90 (Ct.App.1984) (finding
that the court of appeals must remand issues to the family court for a hearing if the record is insufficient for adequate review on
appeal). However, because there was not a full evidentiary hearing on Wife's employability, we remand this issue to the family
court for a hearing with instructions to impute income to Wife and to reduce Husband's alimony obligation accordingly, pursuant to
the terms of the parties' agreement. Taking our own view of the preponderance of the evidence, we believe that Wife is capable of
some employment as Joel Leonard testified. See Ebert, 320 S.C. at 338-39, 465 S.E.2d at 125-26 (finding that Husband is not
required to continue paying Wife's mortgage where the parties intended Wife would sell the home but settlement agreement does
not specify when she must sell it). In other words, she cannot accept the decision of the Social Security Administration that she is
not disabled and yet claim she is too disabled to work, forcing Husband to continue providing her full support. Quite simply, Wife
cannot have it both ways. However, Wife claims she is disabled and therefore cannot secure employment. The Social Security
Administration found Wife was not disabled and refused her disability benefits.
Health Insurance III.
We disagree. Husband next contends his obligation to provide Wife with medical insurance and to pay her uninsured medical
expenses terminated when he lost his job in January 1998.
The relevant language reads as follows: Paragraphs 4 and 13 of the parties' agreement set forth Husband's obligation to provide
health insurance to Wife and pay her uninsured medical costs.
Husband will be responsible for all deductible amounts incurred by Wife on the applicable health insurance policy for any physical
exam, any diagnostic proceeding and any necessary treatment up to a total amount equal to the insurance deductible per year. 4.
Husband agrees to pay to Wife, on a monthly basis, as alimony, the following bills to wit;

Husband to be responsible for uncovered medical, dental and prescriptions. Health insurance covering Wife as an insured, payable
directly to insurance company. F)

Husband shall maintain at his expense a group major medical hospitalization and health insurance policy with Wife listed as an
insured thereof through his place of employme 13. This obligation shall continue until Wife becomes self sufficient as set out
above. nt.
Wife's coverage under Husband's policy at H2Options expired in January 1998 when Husband's employment was terminated. He
later became employed at H2Options and continued to insure Wife under that company's policy. Husband was employed at the
time of the agreement and was insured under a company insurance policy.
However, depending upon the family court's decision regarding the amount of income to impute to Wife, Husband's obligation to
continue paying Wife's insurance may decrease according to the parties' agreement. The agreement unambiguously obligates
Husband to provide Wife with medical insurance coverage regardless of his employment. Ellis v. Taylor, 316 S.C. 245, 248, 449
S.E.2d 487, 488 (1994). The court must enforce an unambiguous contract according to its terms regardless of its wisdom or folly,
apparent unreasonableness, or the parties' failure to guard their rights carefully. Ebert, 320 S.C. at 338, 465 S.E.2d at 125.
Where an agreement is clear and capable of legal construction, the court's only function is to interpret its lawful meaning and the
intention of the parties as found within the agreement and give effect to it. From a plain reading of the agreement, we cannot
conclude that Husband's obligation to provide Wife with health insurance terminated upon his unemployment.
Contempt IV.
We agree. Husband contends the family court erred in finding him in contempt for failing to comply with the provisions of the
agreement.
Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 161, 177 S.E.2d 544, 544 (1970) (holding an unchallenged ruling, right or wrong,
is the law of this case and requires affirmance). Wife has not appealed these findings and they are therefore the law of the case.
The family court found Wife abandoned her claims for automobile expenses and the land upon which the agreement obligated
Husband to make option payments. Further, she testified the applicable life insurance premiums were paid at the time of trial and
had never lapsed. Wife conceded in her testimony that the mortgage obligation on her home was current at the time of trial.
Our reading of the record and order reveals the family court found Husband in contempt for failure to maintain Wife's health
insurance, failure to pay Wife's medical expenses, and failure to pay spousal support.
Hicks v. Hicks, 280 S.C. 378, 381, 312 S.E.2d 598, 599 (Ct.App.1984); see also Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E.2d
624, 626 (1983) (parent who is unable to make child support payments as ordered is not in contempt). Where a contemnor is
unable, without fault on his part, to obey an order of the court, he is not to be held in contempt. Spartanburg County Dep't of Soc.
Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988) (quoting Black's Law Dictionary 1434 (5th Ed.1979)). A willful
act is defined as one done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific
intent to fail to do something the law requires to be done. Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129
(1989). Contempt results from the willful disobedience of a court order.
Moreover, Husband was employed at the time of trial and expressed a willingness to repay the accumulated arrearage in
accordance with a judicially ordered schedule. During these periods, Husband continued to fulfill his support obligations and to
make mortgage payments on Wife's home to the extent he was financially able. It is uncontested Husband underwent periods of
involuntary unemployment in 1998. The testimony at trial reveals Husband's failure to comply with his support obligations under
the agreement was due to his financial inability. We find Husband's failure to comply with the agreement was not willful. 2 Thus,
we hold the facts and circumstances of this case do not support a finding of contempt.
Attorney Fees V.
We agree. Husband argues the family court erred in awarding Wife $7,500 in attorney fees.
Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991). The factors to be considered in awarding reasonable
attorney fees and costs include: (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3)
the professional standing of counsel; (4) the contingency of compensation; (5) the beneficial results obtained; and (6) the
customary legal fees for similar services.
Based on our own view of the facts of this case, we reduce the award of attorney fees to $2,500. Nonetheless, we recognize Wife
incurred expenses instituting these proceedings. Particularly in light of our disposition regarding the family court's error in refusing
to impute income to Wife and its finding of contempt, we hold the award to Wife of $7,500 in attorney fees was excessive.
For the foregoing reasons, the decision of the family court is
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
ANDERSON and STILWELL, JJ., concur.
FOOTNOTES
1Husband asserted in his brief and Wife's counsel agreed at oral argument that Husband had been paying Wife $17,000 to $18,000
per year pursuant to the agreement. .
2 Husband claims that he made a $360 payment on the Thursday prior to the trial of this case, which had not been received by Wife
as of the date of trial. We also remand the issue of Husband's request for a $360 credit against the amount of his arrearage. .
HEARN, Chief Judge:
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http://law.justia.com/cases/rhode-island/supreme-court/1971/276-a-2d-468-0.html

Winegar v. Earle
Annotate this Case

276 A.2d 468 (1971)

Alvon C. WINEGAR v. Max R. EARLE.

No. 1189-Appeal.

Supreme Court of Rhode Island.

April 27, 1971.

Hinckley, Allen, Salisbury & Parsons, Guy J. Wells, Michael P. DeFanti, Providence, for plaintiff.

Moore, Virgadamo, Boyle & Lynch, Francis J. Boyle, Newport, for defendant.

OPINION

POWERS, J.

This is a civil action to recover the unpaid balance of the agreed minimum consideration for the sale of a
medical practice. It was tried to a Superior Court justice who, sitting without a jury, rendered a decision for
the defendant on the latter's plea that the claim was barred by the statute of limitations. From the
judgment accordingly entered, plaintiff seasonably appealed.

The ultimate facts are not in dispute and are readily stated. They establish that on December 15, 1959,
plaintiff, a successful practicing obstetrician and gynecologist in Benton Harbor, Michigan, concluded
negotiations with defendant for the purchase by the latter of the former's practice. The sale was made
effective as of midnight January 31, 1960, and, meanwhile, defendant would work with plaintiff as the
latter's assistant for a stipulated salary. The consideration moving from defendant to plaintiff was as
follows:

"3. Purchase price. The purchase price for the good will of the practice as provided in Paragraph 1 and
the restrictive covenant as provided for in Paragraph 2 shall be computed and paid as follows: "(a) During
the period from February 1, 1960, to January 31, 1961, Dr. Earle shall pay to Dr. Winegar fifteen (15%)
per cent of the gross receipts received by Dr. Earle from the practice of medicine. "(b) During the period
from February 1, 1961, to January 31, 1962, Dr. Earle shall pay to Dr. Winegar twelve (12%) per cent of
the gross receipts received by Dr. Earle from the practice of medicine. "(c) During the period from
February 1, 1962, to January 31, 1963, Dr. Earle shall pay to Dr. Winegar eight (8%) per cent of the gross
*469 receipts received by Dr. Earle from the practice of medicine. "Fifty (50%) per cent of such payments
are attributable to the sale of the good will of the practice as provided for in Paragraph 1, and fifty (50%)
per cent of such payments are attributable to the restrictive covenant provided for in Paragraph 2. The
above payments shall be computed on a cash basis and shall be paid monthly. The payment for the
month of February, 1960, shall be paid on or before April 1, 1960, and, similarly, each monthly payment
thereafter shall be made on or before the first day of the second succeeding month. In the event that the
total of the percentage payments provided for above during the period from February 1, 1960, through
January 31, 1963, shall be less than Fifteen Thousand ($15,000.00) Dollars, on or before March 1, 1960,
Dr. Earle shall pay to Dr. Winegar the difference between Fifteen Thousand ($15,000.00) Dollars and the
total of such percentage payments. Dr. Earle agrees to engage actively in the full-time practive of
medicine from February 1, 1960, through January 31, 1963. The payments provided for in this paragraph
shall be mailed to Dr. Winegar at the address designated by Dr. Winegar from time to time."

The evidence adduced at trial further establishes that plaintiffs moved from Michigan to Missouri on
February 1, 1960, and on that date, defendant assumed plaintiff's practice pursuant to the contract. It is
not disputed that for the first few months defendant paid the agreed percentage and that these payments
amounted to $1,500. The defendants, however, was encountering difficulties, the nature of which were
never disclosed. Suffice it to note that on return from a vacation in July 1960, defendant learned that he
no longer had staff privileges in the two hospitals in the area of his practice.

Recognizing that he could not hope to practice obstetrics and gynecology successfully without such
privileges, he notified plaintiff that he was giving up the practice and, in effect, repudiating the contract.
He first made this known to plaintiff by telephone and then, on July 18, 1960, confirmed his decision by
letter sent to plaintiff, registered mail return receipt requested. Thereafter defendant forwarded the charts
and records of patients to plaintiff. The defendant then left Michigan to practice in Canada, where he
remained. The plaintiff took no action until March 17, 1967, when the instant complaint was filed in
Superior Court.

In his answer, defendant admitted signing the contract, but alleged that plaintiff had induced him to do so
on a promise to obtain staff provileges for him at both hospitals; raised the defense of impossibility of
performance; and brought a counterclaim for damages resulting from plaintiff alleged breach of his
promise to obtain the staff privileges.

On the day of trial, both parties were granted leave to file the additional defenses that the complaint and
counterclaim were barred by the six year limitation of actions imposed by G.L.1956 (1969 Reenactment)
9-1-13.

The trial justice found that plaintiff had performed all of his obligations under the contract, was not
responsible for defendant's failure to obtain staff privileges at the two hospitals and that except for the
statute of limitations, plaintiff was entitled to the balance of $13,500 due under the minimum consideration
provision of the contract. Consistently, he found for the plaintiff on the defendant's counterclaim.

He also found, however, that the defendant had "unmistakably, unequivocally and finally breached the
contract during the summer of 1960" and held that the period of limitations began to run at that time.
Accordingly, he held that plaintiff's action was barred and rendered his decision for defendant.
The judgment accordingly entered simply states "Judgment is entered for the *470 Defendant for costs". It
is important to note that, although the trial justice, in his decision, found for plaintiff on defendant's
counterclaim on the facts, no judgment was entered thereon. We have before us, then, only the judgment
relating to plaintiff's complaint.

From that judgment plaintiff brought the instant appeal. The sole issue before us then is whether the trial
justice was correct in holding that plaintiff's action was barred by the statute of limitations.

In urging that his claim is not barred by 9-1-13, plaintiff makes two alternative contentions. These are,
first, that the great weight of authority takes the position that the doctrine of anticipatory breach is not
applicable to a contract which, bilateral in origin, has become unilateral by reason of complete
performance by one of the parties. In support thereof he refers our attention to 17A C.J.S. Contracts,
472(2)(b), 17 Am.Jur.2d Contracts, 455, and cases therein cited.

Alternatively, he contends that even in those jurisdictions where anticipatory breach of a unilateral
contract is recognized, the weight of authority supports the proposition that the non-breaching party, such
as plaintiff here, has the election of taking action immediately upon the act of repudiation or awaiting the
time specified for performance in the contract, citing 51 Am.Jur.2d Limitation of Actions, 132 and 17A
C.J.S. Contracts, 472(2)(c). In the view we take of plaintiff's principal contention, this alternative
contention need not be considered.[1] 1 Restatement of Contracts, 318 provides in pertinent part:

"Except in the cases of a contract originally unilateral and not conditional on some future performance by
the promisee, and of a contract originally bilateral that has become unilateral and similarly unconditional
by full performance by one party, any of the following acts, done without justification by a promisor in a
contract before he has committed a breach under the rules stated in 314-315, constitutes an
anticipatory repudiation which is a total breach of contract: (emphasis ours) "(a) a positive statement to
the promisee or other person having a right under the contract, indicating that the promisor will not or
cannot substantially perform his contractual duties;" (b) not applicable to the facts here. "(c) any voluntary
affirmative act which renders substantial performance of his contractual duties impossible, or apparently
impossible."

The question of whether the anticipatory breach doctrine, so-called, should be followed where the
contract has become executory as to one party is novel in this jurisdiction.

This circumstance has led us to an extensive review of the numerous cases covered in the eminent
digests cited by the parties, as well as a consideration of the reasoning advanced by the esteemed text-
writers Williston and Corbin.[2]

*471 Such research discloses, interestingly enough, that the rule laid down in the Restatement which
excludes application of the doctrine of anticipatory breach in the case of a contract originally bilateral,
which has become unilateral by reason of full performance by one party to the original contract, is so
universally accepted that, almost invariably, the courts simply state the exclusion. Classical of such
unadorned statements is that of Mr. Justice Cardozo in Smyth v. United States, 302 U.S. 329, at 356, 58
S. Ct. 248, at 253, 82 L. Ed. 294, at 301, where that learned justice simply states:
"But the rule of law is settled that the doctrine of anticipatory breach has in general no application to
unilateral contracts, and particularly to such contracts for the payment of money only."

Be that as it may, it sems clear that the rationale of the rule adopted in the Restatement and almost
universally followed by the courts, is to give to the parties in a contract action, that for which they provided
wherever it is possible to do so. Thus, when a party to a bilateral contract is guilty of a breach thereof,
anticipatory or otherwise, the non-defaulting party's recourse to the courts is to recover not that for which
he bargained, but rather such damages as he might be able to prove. See Messier v. Messier, 34 R.I.
233, 82 A. 996.

When, however, as here, there has been full performance of a contract, which between December 15,
1959 and midnight January 31, 1960, was bilateral, it is possible for the courts to give to the parties that
for which they themselves provided. Specifically, plaintiff was to receive an agreed monthly percentage
for each month commencing February 1960 through January 1963, and the difference between the total
of such payments as were made and $15,000. The parties themselves, however, agreed that such
difference, if any, would not be payable until March 1, 1963. To hold that plaintiff had the right to bring an
action for such difference prior to March 1, 1963, would be to rewrite the contract made by the parties.

It is our judgment, therefore, that the plaintiff's action, having been commenced within six years next after
the date when the cause of action accrued, it was not barred by operation of 9-1-13.

The plaintiff's appeal is sustained, the judgment appealed from is reversed, and the case is remitted to
the Superior Court for entry of judgment for plaintiff with costs.

NOTES

[1] Although not bearing on the issue in the instant case, we think it worthy of note that in Scullian v.
Petrucci, 108 R.I. 406, 276 A.2d 277, this court held that an unambiguous acceleration clause in a
conditional sales agreement cannot be so construed as to give the promisee the right to elect the time
when the cause of action accrues. So holding, we stated our adherence to the principle of not rewriting
the contract made by the parties.

[2] Prominent among such cases are: Smyth v. United States, 302 U.S. 329, 58 S. Ct. 248, 82 L. Ed. 294;
Lynch v. Stebbins, 127 Me. 203. 142 A. 735; Sheketoff v. Prevedine, 133 Conn. 389, 51 A.2d 922; Leon
v. Barnsdall Zinc Co., 309 Mo. 276, 274 S.W. 699; Clarey v. Security Portland Cement Co., 99 Cal. App.
783, 279 P. 483; Sinkwich v. E.F. Drew & Co., 9 A.D.2d 42, 189 N.Y.S.2d 630; Mack v. Revicki, 47 N.J.
Super. 185, 135 A.2d 569; Phelps v. Herro, 215 Md. 223, 137 A.2d 159.

The two text-writers are somewhat at odds. A comparison of their respective views may be had from a
reading of 11 Williston, Contracts, 3d Ed. 1968, 1300-1319 and 1326, and 4 Corbin, Contracts, 1951,
as amended by 1964 amendment, 959-966.
http://caselaw.findlaw.com/ne-supreme-court/1170753.html

Supreme Court of Nebraska.

Gary L. REICHERT, an individual, and Fred Reichert, Jr., an individual, also doing business as Monument Jewelers and Reichert
Jewelers, Inc., Appellees, v. Rubloff HAMMOND, L.L.C., Appellant.
S-01-128. No.
Decided: June 7, 2002
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. John F. Simmons, of
Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellant. Michael J. Javoronok, of Michael J. Javoronok
Law Firm, Scottsbluff, for appellees.
The exclusive remedy gave the Reicherts the right to terminate their lease agreement or reduce their rent by 50 percent for a
specified period if Hammond breached the lease agreement. The court further found that an exclusive remedy provision in a
commercial lease did not provide an adequate remedy at law or prevent it from giving injunctive relief. The court found that
Hammond, the lessor, had intended that the Reicherts would have the exclusive right to operate fine jewelry stores in Monument
Mall in Scottsbluff, Nebraska. This is an appeal from a permanent injunction imposed by the district court against appellant, Rubloff
Hammond, L.L.C. (Hammond), from leasing space to a competitor of appellees, Gary L. Reichert and Fred Reichert, Jr. (Reicherts).
However, because the exclusive remedy provision limited the Reicherts' rights to reduced rents or a termination of the lease
agreements, the district court erred in granting the injunction. We determine that Hammond breached the lease agreement by
executing a lease with a competing store.
BACKGROUND
The minimum monthly rent was $1,162.33 plus 5.5 percent of gross receipts in excess of $275,000. The Reicherts renewed their
lease agreement for the Reichert Jewelers store space in 1997 for a term of 2 years, which expired in August 1999. According to
an affidavit from Fred Reichert, the lease was executed to prevent the owners from leasing space for a Riddles store. The
minimum monthly rent over the term averaged $2,137.50 for 1,140 square feet plus 5.5 percent of gross receipts in excess of an
average of $513,000. The lease agreement was with Mid-America Realty Investments, Inc. (Mid-America), the predecessor in
interest to Hammond. In 1994, Fred Reichert learned that Ridco, Inc., a retail jewelry chain doing business as Riddles Jewelers
(Riddles), sought to lease space in Monument Mall. In August 1994, the Reicherts reached a 4-year lease agreement with the
owners for space to open a second store in Monument Mall, known as Monument Jewelers. In 1986, Fred Reichert opened
Reichert Jewelers, Inc., in Monument Mall in Scottsbluff.
The amendments extended the term for both leases to 10 years, or until July 2009. In August 1999, the Reicherts and Hammond
agreed to amend both lease agreements. Sometime in 1999, the mall manager for Hammond informed Fred Reichert that Ridco
had again sought to lease space in Monument Mall for a Riddles store. Mid-America later sold its ownership of the mall to
Hammond.
The combined changes increased the thresholds for both of the Reicherts' stores by approximately $126,200, from a total threshold
of $799,400 to approximately $925,600. The threshold for determining its percentage rent decreased by about $23,800 compared
to the final year under its 1994 lease. The minimum monthly rent for Monument Jewelers for the first 5 years increased by $109.25
from its monthly rent at the end of the 1994 lease to $2,294.25. However, the threshold for determining the 5.5 percentage rent
increased by $150,000. Under the amendments, the minimum monthly rent for Reichert Jewelers during the first 5 years was
$1,585-an increase in monthly rent of $422.67.
Both amendments to the lease agreements contained the following provision:
The foregoing restriction shall not apply to (i) Anchor Tenants (ii) any tenant, its successor, assign or replacement, open and
operating in the Shopping Center as of August 1, 1999 So long as Tenant is open and operating its business as provided for in
the Lease and is not otherwise in default under the Lease then Landlord covenants and agrees that during the period
commencing on August 1, 1999 and expiring on July 31, 2004, no space in the Shopping Center will be leased or allowed to be
leased, other then [sic] Tenant's operation, for the primary business of the operation of a jewelry store selling fine jewelry.
If Landlord fails to remedy such breach Tenant shall have the rights set forth in the next paragraph as its sole and exclusive
remedy because of such breach Landlord and Tenant acknowledge that in the event of a breach of this restriction, Tenant shall
give Landlord written notice of such breach and Landlord shall have thirty (30) days from the date of said notice (or such longer
period as may be reasonably required if Landlord is diligently attempting to remedy same) to remedy same.
If such Competing Store continues to violate the restriction for 270 days after the date said Competing Store opened for business,
then Tenant shall have the further right to terminate the Lease no later than 290 days after the date the Competing Store opened
for business Tenant shall have, as its sole and exclusive remedy under the Lease, the right to either (i) decrease annual fixed
minimum rent by 50% during the period such store is open and operating or (ii) terminate the Lease If Tenant elects (i) above,
then Tenant shall resume paying full fixed minimum rent on the date such Competing Store ceases violating the restriction.
In its answer, Hammond alleged that the Reicherts were limited to the exclusive remedy provision in the lease agreements. Three
days later, the Reicherts filed a petition for declaratory judgment and a permanent injunction against Hammond. On September 15,
2000, Hammond executed a lease agreement with Ridco to lease space for a Riddles store.
The chief financial officer for Ridco admitted in a deposition that this provision indicated to Ridco that the demographics of the area
would support only two jewelry stores in the mall. The restriction provided that Ridco could terminate its lease agreement if one of
the existing jewelry stores in the mall departed and Hammond then leased space to more than two tenants for the operation of a
jewelry store. The Ridco lease agreement also contained a premises use restriction. At trial, the Reicherts adduced evidence to
show that Ridco had received a more favorable rent arrangement than the Reicherts, both in terms of minimum rent per square foot
and percentage rent.
The Reicherts also presented expert testimony that the economy of Scotts Bluff County had remained flat for many years and that in
such an economy, Riddles' gross receipts would have a substantial negative impact on the Reicherts' sales volume.
In its order, the court found:
Hammond intended to give the Reicherts an exclusive right of operation for fine jewelry stores in the mall through July 2004.
Hammond reasonably knew that this right constituted an important economic lease provision to the Reicherts.
Even if the Reicherts chose to reduce their rent by 50 percent for 9 months, they would still pay almost $27,000 more during that
period than Ridco for approximately the same store space.
The evidence showed that there was a flat economy in the area and that Ridco's lower rent gave it an unfair competitive
advantage.
Hammond and Ridco anticipated that the addition of a Riddles store would force the closure of one of the Reicherts' stores before
July 2004.
Although parties are free to contract for a particular remedy for a breach of contract, this case was an equitable action to prevent a
breach, or further breach, of the lease agreements.
It permanently enjoined Hammond from leasing or allowing to be leased space for the primary purpose of operating a fine jewelry
store to any mall tenant other than the Reicherts, so long as the Reicherts continued to operate their stores and were not otherwise
in default, through July 31, 2004. The court held the reduction in rent was an inadequate remedy at law and that the Reicherts
would incur irreparable damage without injunctive relief. See Nebraska Wheat Growers' Ass'n v. Norquest, 113 Neb. 731, 204
N.W. 798 (1925) (holding that liquidated damages provision did not provide adequate remedy at law or prevent injunctive relief).
The court relied upon a 1925 case for its ruling.
ASSIGNMENTS OF ERROR
Hammond assigns that the district court erred in (1) enjoining it, (2) failing to read the lease provision as part of an integrated whole,
(3) determining that the leasing of space to a competing jeweler is a violation of Hammond's obligation to the Reicherts, (4) giving no
effect to the exclusive remedy provision of the contract, (5) determining that the additional rights given to the Reicherts in the event
of Hammond's leasing space to a competing jeweler are exclusive only if they provide adequate recourse, and (6) determining that
the Reicherts did not have an adequate remedy at law even if it correctly determined that Hammond breached its agreement.
STANDARD OF REVIEW
Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 637 N.W.2d 876 (2002). The construction of a contract is a
matter of law, and an appellate court has an obligation to reach an independent, correct conclusion irrespective of the
determinations made by the court below.
Village of Winslow v. Sheets, 261 Neb. 203, 622 N.W.2d 595 (2001). In an appeal of an equitable action, an appellate court tries
factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where
credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one version of the facts rather than another. An action for injunction sounds
in equity.
ANALYSIS
Alternatively, Hammond argues that the court erred in failing to enforce the lease agreements of the parties as to their rights in the
event of a breach. Hammond contends that it did not breach the lease agreements because the exclusive remedy provision
qualifies its obligations under the lease agreements.
They also contend that the court correctly determined that no adequate remedy at law existed and that, therefore, a permanent
injunction should be entered against Hammond. The Reicherts contend that the court correctly determined that the exclusive
remedy provision was inapplicable when an injunction is imposed to prevent a breach, or further breach, of a contract.
The first issue is whether Hammond promised, by the amendments to the lease agreements, to give the Reicherts the exclusive
right to operate fine jewelry stores in the mall.
In such a case, a court shall seek to ascertain the intention of the parties from the plain language of the contract. In re Estate of
Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001). When the terms of a contract are clear, a court may not resort to rules of
construction, and terms are accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them.
We disagree. Because the exclusive remedy provision gave the Reicherts the right to reduce rents or terminate the lease
agreements if Hammond leased space to a competitor, Hammond argues that its promise was modified to include that contingency.
Hammond argues that the lease agreements must be read as a whole.
The first sentence of the provision in the amendments to the lease agreements in question provides:
So long as Tenant is open and operating its business as provided for in the Lease and is not otherwise in default under the Lease
then Landlord covenants and agrees that during the period commencing on August 1, 1999 and expiring on July 31, 2004, no
space in the Shopping Center will be leased or allowed to be leased, other then [sic] Tenant's operation, for the primary business of
the operation of a jewelry store selling fine jewelry.
Hammond agreed by this provision to refrain from leasing space to a competing store, or allowing space to be leased to a
competing store, so long as the Reicherts were open for business and not in default until July 31, 2004. This sentence states that
the right to be the exclusive operators of jewelry stores in the mall is the benefit for which the Reicherts bargained.
Thus, the purpose of the termination provision is most reasonably construed as providing incentive for Hammond to perform its
promise. Rather, the right to termination of the lease agreements or reduced rents inured to the Reicherts upon Hammond's
breach. The provision did not reserve to Hammond the right to either perform its promise or provide an alternative performance,
such as liquidated damages.
The plain language of the contract supports the court's finding that the parties intended the lease to provide the Reicherts an
exclusiveright to operate a fine jewelry store. Parties generally bargain for performance, not nonperformance. Allowing parties to
claim that they have not promised a performance because of a remedy provision for their breach would undermine this important
doctrine of contract law. Strategic Staff Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d 230 (2000); Cimino v. FirsTier Bank, 247
Neb. 797, 530 N.W.2d 606 (1995). In addition, the implied covenant of good faith and fair dealing exists in every contract and
requires that none of the parties to the contract do anything which will injure the right of another party to receive the benefit of the
contract.
The court erred in determining th Although the lease agreements provided Hammond with a 30-day opportunity to remedy the
breach, the breach occurred when it executed a contract to lease space to Ridco for the operation of a jewelry store. Black's Law
Dictionary 900 (7th ed.1999). To lease is to grant the possession and use of (land, buildings, rooms, movable property, etc.) to
another in return for rent or other consideration. As discussed, Hammond agreed not to lease space or allow space to be leased
to a competing store in the mall that operated for the primary purpose of selling fine jewelry. Phipps v. Skyview Farms, 259 Neb.
492, 610 N.W.2d 723 (2000). A breach is a nonperformance of a duty. The second issue is whether the court correctly concluded
that this was an action to prevent a breach of the exclusivity provision. at this was an action to prevent a breach.
748 (1991). See, Roberts Constr. Co. v. State, 172 Neb. 819, 824, 825, 111 N.W.2d 767, 770, 771 (1961) (holding that extension
of time provision was not sole remedy for highway improvement contractor against State when contract in the absence of a no-
damage clause or other provision to the contrary in the contract (emphasis supplied)); 17A Am.Jur.2d Contracts A contract will
not be construed to limit the remedial rights of the parties unless that intention is clearly expressed. However, the damages clause
in Nebraska Wheat Growers' Ass'n did not specify that it was the sole and exclusive remedy under the lease. In that case, this
court held that a liquidated damages clause was an inadequate remedy at law and did not preclude injunctive relief. The court,
however, relied upon Nebraska Wheat Growers' Ass'n v. Norquest, 113 Neb. 731, 204 N.W. 798 (1925), to conclude that this
provision did not prevent the Reicherts from seeking injunctive relief. As the trial court recognized, the parties stipulated to a
particular remedy in the event of a breach.
In contrast, the remedy provision in the amendments to the lease agreements provided:
In the event Landlord fails to proceed with all diligence to remedy such violation, then, upon the expiration of thirty (30) days from
the date of Tenants notice, Tenant shall have, as its sole and exclusive remedy under the Lease, the right to either (i) decrease
annual fixed minimum rent by 50% during the period such store is open and operating or (ii) terminate the Lease
(Emphasis supplied.)
This result is justified when the parties foresee the specific nonperformance and agree to an exclusive remedy in that event. See,
Doyle v. Ortega, 125 Idaho 458, 872 P.2d 721 (1994); Sun Bank of Miami v. Lester, 404 So.2d 141 (Fla.App.1981). Other
jurisdictions have held that a trial court erred in granting specific performance when an exclusive remedy clause limited the injured
party's rights. Kozlik, 240 Neb. at 535, 483 N.W.2d at 121. This court has consistently upheld the right of contracting parties to
privately bargain for the amount of damages to be paid in the event of a breach of contract, provided the stipulated sum is
reasonable in light of the circumstances. Kozlik v. Emelco, Inc., 240 Neb. 525, 535, 483 N.W.2d 114, 120-21 (1992); Crowley v.
McCoy, 234 Neb. 88, 449 N.W.2d 221 (1989). In the context of liquidated damages provisions, this court has held that parties to a
contract may override the application of the judicial remedy for breach of a contract by stipulating, in advance, to the sum to be paid
in the event of a breach.
No conflict exists between the two provisions, and effect may be given to both. Just as Hammond is bound by the plain language
of its covenant to forebear leasing space to a competing store, so the Reicherts must be held to the plain language of the exclusive
remedy provision. Here, the remedy provision in the amendments is not ambiguous and limits the Reicherts' rights for this
particular breach to decreased rents or termination of the lease agreements.
See, Purcell Tire Agreed-upon damages can also be so small as to be stricken as unconscionable in light of the breach. See
Kozlik, supra. The question of the reasonableness of a remedy generally addresses whether a liquidated damages clause is so
great as to constitute a penalty. & See Purcell Tire When, however, the parties are experienced in business, the damages are
economic, and the parties had fair opportunity to consider the agreement, courts rarely find that liability limitations are
unconscionable. 356, comment a. (1981). Rubber v. Executive Beechcraft, 59 S.W.3d 505 (Mo.2001); Restatement (Second) of
Contracts & Compare Darr v. D.R.S. Investments, 232 Neb. 507, 441 N.W.2d 197 (1989) (method set forth in partnership
agreement for valuing retiring partner's interest was not unconscionable when evidence showed that partners were experienced
businessmen with opportunity to read partnership agreement and to discuss it before signing). Rubber, supra.
See, Kozlik, supra; Kansas- Although the Reicherts may in retrospect be dissatisfied with this bargained-for provision, this court
will not rewrite a contract to provide terms contrary to those which are expressed. This benefit is demonstrated by Ridco's
termination right in the restrictive use provision in its lease agreement with Hammond. See, generally, Johnson Lakes Dev. v.
Central Neb. Pub. Power, 254 Neb. 418, 576 N.W.2d 806 (1998). The right to terminate a lease agreement is an important
bargaining tool and, in most cases, a significant economic benefit. Nebraska Nat. Gas Co. v. Swanson Bros., 215 Neb. 398, 338
N.W.2d 774 (1983).
CONCLUSION
The district court erred in granting a permanent injunction when the parties clearly intended that the exclusive remedy in the event of
a breach would be the termination of the lease agreements or a reduction in rents.
Reversed.
CONNOLLY, J.
- See more at: http://caselaw.findlaw.com/ne-supreme-court/1170753.html#sthash.kahlySZA.dpuf
rewrite
(r-rt)

v. rewrote (-rt), rewritten (-rtn), rewriting, rewrites

v.tr.

1. To write again, especially in a different or improved form; revise.

2. To put (material submitted to a newspaper or magazine) in a form suitable for publishing.

3. Computers To save (a usually altered file) over its most recent version in the same storage location.

v.intr.

To make revisions in written material.

n. (rrt)

1. The act or an instance of rewriting.

2. Something rewritten.

rewritable, rewriteable adj.

rewriter n.
American Heritage Dictionary of the English Language, Fifth Edition. Copyright 2011 by Houghton
Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All
rights reserved.

rewrite
vb (tr) , -writes, -writing, -wrote or -written

1. to write (written material) again, esp changing the words or form

2. (Computer Science) computing to return (data) to a store when it has been erased during reading

something rewritten

Collins English Dictionary Complete and Unabridged, 12th Edition 2014 HarperCollins Publishers
1991, 1994, 1998, 2000, 2003, 2006, 2007, 2009, 2011, 2014
rewrite
(v. rirat; n. rirat)

v. -wrote, -written, -writing,

n. v.t.

1. to write in a different form or manner; revise.

2. to write again.

3. to write (news submitted by a reporter) for inclusion in a newspaper.

4. Computers. to record (new or modified data) on a storage or output medium, replacing existing data.

n.

5. the news story rewritten.

6. something written in a different form or manner; revision.

[156070]

rewritable, rewriteable, adj.

rewriter, n.

Random House Kernerman Webster's College Dictionary, 2010 K Dictionaries Ltd. Copyright 2005,
1997, 1991 by Random House, Inc. All rights reserved.