### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 8, 2003 Session HAREN CONSTRUCTION COMPANY, INC. v. THE METROPOLI TAN GOVERNMENT OF

NASHVILLE AND

DAVIDSON CO UNTY Appeal from the Chancery Court for Davidson County No. 01-1053-III Ellen Hobbs Lyle, Chancellor

No. M2002-01135-COA-R3-CV - Filed July 9, 2003

This appeal involves a contract between the App ell ant Har en C ons tru cti on C om pan y, Inc . (H CC I) andthe Appellee Metr

opolitan Governme

nt (Metro ). The c onstruct ion compa

ny b rought s uit claiming Metro breached

its contract with HCCI in “constructive suspension” of work. In addition the construction company c laimed that Metro interfered with the company’s c ontract

for equipment supply fr om a t hi rd pa rt y. The trial court granted Metro’s two motions for summary judgment, the first concer ning Met ro’s alleged lia

bility under the Governmental Tort L iability Act, the second concerning the action for bre ach of c ontract . HCC I ap peals t he grant of summar

y j udgm ent. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and R OYCE T AYLOR , S P
. J., joined. Philip E. Beck and William L. Bar rett, Jr., Atlanta, Georgia, for the appellant, Har en Construction Company, I

nc. Thomas G. Cross and Jennifer C. Surber, Nashville, Tennessee, for the appellee, T he Metropolitan Go ve rn me nt of

Na sh vi ll e a nd Da vi ds on Co un ty.

OPINION
On May 28, 1998, Har

en Construction Company, I nc. (HCCI) a

nd the M etropolitan Government

of Nashville and Davidson County (Me tro) executed a contract

for the construction of the Bonnafair Sewage Pumping Station. This contra ct contained the followi ng two paragra phs, which ar e of par ticular interest in this appe al:-2- 17. CLAI MS BY THE CONTRACTOR
Claims by the Contractor a gainst the Metropolitan Government are subject to the following terms and

condition s: (F) In the even

t the Contr

actor should be de

lay ed in performing any

task which at the time of the delay is then c ritical, or which during the del ay bec omes crit ical, as the sole result of any a

ct or omission of the Metropolitan Government or someone acting in the Metropolitan Government’s be half , or by Metropol

itan Governmentauthorized Change Orders, unusually badweather not

reasonably

anticipated, fire or other Acts of God, the date for

achieving Substantial Completion, or, as applicable, Final Completion, shall be appropriately adjusted by the

Metropolitan Government upon the writt en claim of the Contractor to the Metropolitan Government and the Architect/Engineer. A task is critical within the meaning of this Su bparagraph 17(F) if, and only if, said task

is on the critical path of the Project Schedule so that a delay in perfor ming suc h task will

delay the ultimate completion of the Project. Any claim for an extension of time by

the Contra

ctor sha ll strictly comply withthe requ

irements of Subparagraph 17(A) above. If the Contractor fa ils to make such claim as required in th is Subpar agraph 17(F), any claim for an extension of time shall be waived. Further, extensions of time shall be Contractor’s sole remedy f or any and all de

lay s. No payment or

compensation of any

kind shall be made to Contractor for damages because of hindrance in the orderly progress of

the Work or delay fr

om any cause in the progress of the Work, whether such hindranc es or delay s be av oidable or unavoidable. Contractor expressly ag rees not to make, and

hereby waives, any

claim for damages on account of any delay, obstruction or hind rance attributable to any cause whatsoever and agree s that Contractor’s sole right and remedy

in the case of any delay, obstruction

or hindra nce, shall be an extension of the time fixed for completion of the Contract

.

. . . 23. TERMINATION BY THE CONTRACTOR (A) The Metr opolitan Government shall have the right at any time to direct the Contractor

to suspendthe performance, or any designated part thereof, for a ny reason whatsoever, or without reason. If any such suspension is directed by the Metropolitan Governm

ent, the Contra

ctor sha ll immediately comply

with same and shall demo

bilize as di

rected by t he Metro politan Go vernmen

t. (B) In the e ven t the Metropolitan Government directs a suspension of performance un der this Paragraph 23, through no fa ult of the Contractor, the Metropolitan Governm

ent shall p ay

th e Co ntractor as full compensation for such suspensio n the Contr

actor’ s reason able cos ts, actua lly incurre d and paid , of:-3- (1) demobilization and remo bilization, including

such cost s paid to subcontr actors, (2) preserving and protecting w ork in place, (3) stora ge of materials or equipment purchased for the Project, inc lud ing insurance thereon; and, (4) performing in a later or during a longer , time frame than that contempl ated by

this Contra

ct.
In addition to these provisions, the contract also included the following integr ation clause:
6. INTENT AND I

NTERPRETATION
With respect to the intent and interpretation of this Contract, the Metropolitan Governm ent and th e Contractor agr

ee as fo llows: (A) This Contract, which includes the docu ments listed in Paragraph 1 (Docume nts Incorporated B y Refere nce), constitutes the entire and exclusive agreement

betwee n the par ties with r efere nce to the Project, and said Contact supers edes any

and all pr

ior discu ssions, co mmunicati ons, repr esentat ions, understa ndings, negotiations or

agreements. This Contract also supersedes any bid documents (unless incor porated herein in Paragraph 1) ; The original bid, which was incorporated by reference in page

1 of the contract, provided that substantial completion of

th e c on st ru ct io n p ro

je ct wa s t o b e a ch ie ve d w it hi n 2 40 da ys of the issuance of the Notice to Proceed, and final completion within thirty day s after that substantial completion date. Throughout the time of construction, Metro made several design changes, some with HCCI ’s approva l, so me without. Initial survey s were corrected. Certain pump motor specific ations were changed in a meeting betw een Metr o, the pro ject arc hitect Ha rt-Freeland-Ro

berts, Inc. (HFR), and HCCI’s ma

jo r s up pl ie r o n t he pr oj ec t, So ut he rn Sa le s C om pa ny, Inc. (Southern), and in the absence of representatives of HCCI. A s a result, the project which wa s origin ally

to take 270 days fr

om the Notice to Pr oc ee d w as fi na ll y co mp le te on Ma y 1 3, 2000, 713 calenda r day s after inception . It is undisputed in the record that throughout this period HCCI submitted 18 written ap pl ications for payment during a nd after completio n of the B onnafai r Se wage P ump Station in which it stated “contractor

waives a ll claims and the right to make any future claims for

additional compensation relating in any way

to work performed or delay s, hindrances or difficulties experienced to date.”
On April 4, 2001, HCCI filed its Complaint for Breach of Contract alleging “constructive suspension” in violation of paragrap h 2 3 of th e co nt rac t, and see ki ng d ama ges for th at b rea ch. In addition, HCCI s ought da mages f or Metro ’s alleg ed tortiou s i nterfer ence with its contractual relation ship with Southern. Metro answered and on January 10, 2002, filed its Motion for Summary-4-

Judgmen t as t o Plaintiffs’ claims in their entirety. As g rounds therefor, Metro argued that it was immune from suit f

or induce ment to breach and HCCI’s claim was essentially a claim for delay damages , barred as a result of the plain langua ge of paragra

ph 17 of the contract as inter prete d pursuant to Tenne ssee Code

Annotate d section

47-50-11 2. That sta

tute provides the a

ppropria te method fo

r interpr eting w ritten co ntracts. (a) All co ntract s, in cludi ng, but not limited to, notes, security agr eements, deeds of trust, andinstallme

nt sales c ontract s, in writing and sig ned by the part y to be bound, including endo rsements thereon, shall be prima facie evidenc e that the contract contains the true intention of the parties, and shall be enforced as written; provided, that nothing herein shall limit the right of any party to contest the

agreement on

the basis it was procured by

fraud or limit the ri ght of a

ny p arty to asser t any other rig hts or defe nse provi ded by

common la

w or statu tory law in re gard to

contracts. Tenn. Code Ann. § 47-50-112(a).
On March 5 , 2002 , the t rial c ourt gr anted Metro ’s Mot ion fo r Sum mary Jud gm en t on the claim for inter ferenc e with

contractual rights, taking under a dvisement the defendant’s Motion for Summary Judgment o n the “no damage s for del ay ” clause in the con

tract. On April 9 , 2002, the court entered its Memorandum and Order gr anting the remainder of Metro’s Motion for Summary Judgment. From thos e order s HCCI appeals , arguing fir st

that the trial court erred as a matter of law in determining that

paragraph 17 gove

rns the actions of the parties rather than paragraph 23, and that the trial court erred in holding that the claim of inducement to breach is barred

by Tennessee

Code Annotated section 29-20-205.
I. Th e Brea ch of Cont

ract Cla im
HCCI cl ai ms th at Me tr o, by c ha ng in g t he de si gn re qu ir em en ts , f ai lu re to ti me ly p rov ide a construction permit, and otherwise delay ing construction, on the project “constructively suspe

nded” work causing damage to HCCI. HCCI argues that the delay s thus caused were so lengthy as to be outside the conte

mplation of

the part ies. None theless, HCCI f

inished itsperfor

mance a nd was pa id its contra ct price of one mill

ion, one h undred thousand, tw enty

three do llars.
It seeks recovery

of what it claims is owed under paragra p h 23 i f the actions of Metro can be construed as a suspension of work pursuant to that pa ragra ph. I n arguing its po int HCCI

claims that its intent was not expressed in the contract. The company relies upon the general rule posited by the Court in Real Estate Management, Inc. v. Giles , 41 Tenn. App. 347, 293 S.W.2d 596 (1956). This case concerned three offers to purchase real estate, which were contingent upon the purchaser’s “being able to purchase” three contiguous tra cts of rea l prope rty. The off ers were drawn by

Real Estate Management, I

nc. at the purchaser ’s behes t and were submitted to the three different rea l estate owners o n Real Esta

te Management, I

nc.’s letterhead. I

n finding that the trial court placed a strainedconstruction upon the contingency , the court stated two gene ral rules regarding the construction of co ntracts:-5- Ge ne ra ll y, in const

r uing co ntract s the C ourts not o nly look to th e langu age of the instru ment, but mu st

ascert ain, if po ssible, the

intention o f the par

ties, and the c onstruction which is fair and reasonable will prevail. Scott v. McRe ynolds , 3 6 Tenn.Ap p. 289, 255 S.W.2d 401; Couch v. Couch , 35 Tenn.App. 464, 248 S.W.2d 327; Commerce Street Co., Inc. v. Goodyear Tire & Rubber Co., Inc. , 31 Tenn.App. 314, 215 S.W.2d 4; Nashville Terminal Co. v. Tennessee Central Ry. C o. , 2 Tenn.App. 646. And where several instruments are made as part of one transaction, they will be re ad toge

ther and each wi ll b e constru ed with reference to the other. Great American Indemnity Co. v. Utility contractors, Inc. , 21 Tenn.App. 463, 111 S.W.2d 901; 17 C.J.S., Contracts, § 298, p. 714. Applyingth e foreg oing rul es of con struction to the off

er made to Miss Gile s, did Freeman, a succes sful business man, by using the w ords ‘able to purchase,’ have reference to his financial ability? Did he intend to uncond

itionally obligat e himself to purchase the Dubrow and Callier tracts at price s he might consider excessive, as insisted on behalf

of Miss Giles. Or, on the other hand, is it not reasonably apparent that Freema n, by using the

words in q

uesti on, had refer

ence to h is being able to acquire the tracts at prices designated in his offers or at prices acceptable to him. The latter appears to be not only

the more logical and reasonable c ons tr uction, but the undisputed pro of sh ows that such was Freeman’s intention prior to and when the offerswere sig

ned by him. Real Estate Management, Inc. v. Giles , 41 Tenn.App. at 352-53, 293 S.W.2d at 599.
The agree ment betw een the p arties in the case at bar, unlike the offers in Giles , consisted of a single unambiguous writing which contained provisions governing suspension of wo rk an d d el ay. This unambiguous writing is accompanied by subsequent memoranda which, rather than cre ate any am bi gu it y, further support the obvious intent at the time of contract, and reasonable construction of the waive r langu age in paragraph 17 of the part ies’ ag reemen t. Simply put, HCCI ar

gues that Metro “constr uctively suspended” work pursuant to paragra ph 23. HCCI argues that the de lay it incurred in performance was so severe a s to be outside the contemplation of the parties fo r paragraph 17's purposes , ye

t within co ntemplati on so as to constitute the suspension of work described in paragra ph 23. One of the well settled rules in contract construction is that al l th e provisions of a contract should be constr ued in harmony with each other, if such construction can be re asonably made. See Bank of Commerce and Trust Co. v. Northwestern National Life Ins. Co. , 160 Tenn. 551, 26 S.W.2d 135, 138, 68 ALR 1380 (1930).
The Supreme Court

in Planters Gin Company v. Federal Compress & W

arehouse Company, Inc., et al. , 78 S.W.3d 885 (Tenn. 2002) held: [T]he outc ome of this case rests on a contractual interpreta tion of the leasing agreement

betwee n Feder al Compre ss and Plan

ters G in. In “resolving disputes concerning contract interpr etation, our task i s to ascertain the intention of the parties-6-

basedupon the usual, natural, and ordinary meaning of the cont ractual language.” Guiliano v. Cleo, Inc

. , 995 S.W.2d 88, 95 (Tenn. 1999) This determination of the intention of the pa

rties is generally

treated as a question of law because the w ords of the contract are

definite and undisputed, and in deciding the lega l effect of the wo rds, there is no genuine factual issue left for a jury to decide. 5 Joseph M. Perillo, Corbin
on Contracts , § 24.30 (rev. ed. 1998). Doe v. HCA Health Services of Tenn, Inc. , 46 S.W.3d 191, 196 (Tenn. 2001).
A court’s initial task in construing a contract is to determine whether the langua ge of the contract is ambiguous. Once found to be ambiguous, a court applies establishedrules of

construction to dete

rmine the parties’ intent. “ Only

if ambig uity remains after the court applies the pertinent rules of construction do es [ the legal meaning of

the contract] become a question of fact” appr opriate for a jury . Finding no such a mbiguity in the con

tract be tween F ederal Compress andPlanters Gin, the issues presented

to this Court are suitable for determinationby s ummary judgmen t. Planters Gin Company , 78 S.W.3d at 889-90. Paragraphs 17 and23 of the contract are neither inconsistent or irreconcilable one with the other. There issimp ly no evidence in the record of any

“suspension” of performance within the meaning of paragraph 23. I n reconciling these two parag raphs and correctly

applying pa

ragraph 17 as contr olling in the case , the tria

l court he ld:
The premise of the defendant’s motion for summary judgme nt on the breach of contract claim is that the foregoing f acts do not entitle the plaintiff t o recovery
. The defe ndant argue s that the facts constitute a claim of delay and that monetary recovery for dela y isbarred

by a “no dama

ges for delay ” provisi on contained in paragraph 17 of the contra ct. In support of its motion, the [defendant] relies upon Brown B rothers v. Metropol ita n Gove rnment , 877 S.W.2d 745 (Tenn. App. 1993) for the proposition that no [ dam age s fo r de lay c lau ses ] a re e nfo rce abl e un der Ten nes see law . In enforcing the no damages for delay clause, the court

explained in Brown Broth ers that parties to a contract

are “free to allocate risks and bur dens between themselves as they see f

it.” Id . at 749. “The contract at issue clearly

places with the contractor the risk o f delay due to ut ilit y adjustm ent, a nd th e burd en of co ordin ating it s operations with the affected utilities.” Id. T he cou rt alluded to several exceptions to the no damage for delay clause r ecogn ized by other courts: if the delay wa s of the kind not contemplated by the pa rties, if the delay

amounts to

an abandonment of the contact , if the del ay

was cau se d by bad faith, or if the delay wa s caused by a

ctive interfe rence. The cour

t in Brown found that the facts of the case fit within none of the exceptions. The plaintif

f’s prima ry opposition to the motion for summary judgment on the breach of

contract claim is that paragraph 17, the no damage s for del ay

clause, is-7-

notthe applicable contract provision. The plaintiff asserts that the facts of this case andthe rec ov ery it seeks c ome under paragraph 23 of the contract. That contract provis ion requires the defendant to pay the plaintiff where there has been a suspension of performance. Paragraph 23 provides that a suspension of the contract occurs when Metro directsthe contractor to suspend performance of the contract: “The Metropolitan Government shall have the right at any time to direct

the Contractor to suspend the performance

. . . .” It is undisput

ed in this c asethat Metr

o never d irectly or explicit

ly issued a suspension of performance. The plaintiff’s argument with respect to parag raph 23 isthat while Metro may nothave declared a suspension, it neverthel ess “ constructively” suspe nded the contract by “un reasona

bly delay ing the p rogre ss of the c ontract

or’s wor k.” This constructive suspension qualifies, the plaintiff argues, as a suspension so as to entitle the plaintiff to relief under paragr aph 23 of the contract. By providing

two sepa rate num bered pa ragra phs – one to deal with delay a

nd one to deal with suspension – the contract differentiates that suspension and delay a

re differe nt occur rences
. The text of paragraph 23 of the contract indicate s that a suspension of work is more than an un reason able delay . A review of paragra ph 23 reveals that suspension occurs when the contractor is take

n off the job, work stops, mate

rials are storedand the job site is s ecured . In th e case at bar the summary

judgmen t recor d is that these acts constituting suspension, constructive or explicit, did not oc cur . The facts of this case do not trigger the provisions of paragraph 23. Another indicatio n that par

agrap h 23 on susp ensi on do es not apply is the plaintiff’s characterizatio n of its da mages. The plaintiff

characterizes its damages as “extende d ov erhead

” including dela

ye d time, da

ily c ontract

overhea d, and the cost of idle e quipment. These a re all de lay typ e damag es. The Court therefore concludes that the facts of this ca se do not state a claim for suspension of the work and that the plaintiff’s cl ai m i s o ne to re co ve r for de la y. Accord ingly , th e Court rejects the plaintiff’s argument that summary judgment should be denied because the plaintiff’s claim comeswi thin the provisions of parag raph 23 o f the con

tract.
This holding by the trial c ourt which is inconformity with Brown Brothers v. Metropolitan Government , 877 S.W.2d 745 (Tenn.Ct.App. 1993) is mandated under the undisputed facts of the case. If th

e result i s harsh, it is not the prerog ative of

the cour t to interv ene on be

half of e ither pa rty to the contract. “The c ourts may no t make a new contract for parties who ha ve spoken for themselve s, see Pe tty v. Sloa n , 197 Tenn. 630, 640, 277 S.W.2d 355, 359 (1955), and may not relieve pa rt ie s o f t he co nt ra ct ua l o bl ig at io ns si mp ly b ecause these obligations later prove to be burdensome or unwise.” See Atkins v. Kirkpatrick , 823 S.W.2d 547, 553 ( T enn.Ct.App. 1991); Marshall v. Jackson and Jones Oils, Inc. , 20 S.W.3d 678, 682 (Tenn.Ct.App. 1999).-8-

II . Inducement to Bre ach
In addition to

its claim f or brea ch of con tract, H CCI al so alleged that Metro induced Southern to breach its supply agree ment with H CCI. I

n its Compla

int, HCCI sought tr eble damages pursuant to Tennessee Code Annotated section 47-50-109. HCCI argues that the statut ory actio n for inducement

to breach sounds in negligence. To the contrary , our Supreme Court has held, that the statutory and common law actions for inducement to breach both require a showing of intent. The actions a re ident ical with the exception of the

availab le remed

y. Sa id the Cour

t:
Tennesseerecognizes both a statutory and comm

on law action f

or induce ment to breach a contra ct, see Tenn.Code Ann. § 47-50-1 09 (2001) ; Polk & Sullivan, I nc. v. United Cities Gas Co. , 783 S.W.2d 538, 543 (Tenn. 1989), and both forms of the action protect “contra ct s implied in fact, as well as formal, expressed contracts,” Mefford v. City of D upontonia , 49 Tenn.App. 349, 355, 354 S.W.2d 823, 826 (1961). Important ly, the elementsfor both f orms of the

action a re ident ical, exc ept that a plaintiff asserting a common lawaction may recover punitive damages, instead of the treble damages mandated by

the statute. See BuddyLee Attractions, Inc. v. William Morris Age ncy, Inc. , 13 S.W.3d 34 3, 360-61 (Tenn.Ct .App.199 9). I n order t o recover on a theor

y of induceme

nt to brea ch a con tract, a plaintif f mu st allege and prove seven elements: (1) that a legal contra ct existed ; (2) that

th e defendant was awareof the contract; (3) that the defendant intended to induce a breach of that co ntract; (4) that the defendant acted with malice; (5) that a breach of the contrac t occurred; (6) that the breach was a proximate result of the defe ndant’s conduct; and (7) that the breach inju red the p lain tiff. See Qual ity Auto Pa rts Co. v. B luff City Buick Co. , 876 S.W.2d 818, 822 (Tenn.1994); Baker v. Hooper , 50 S.W.3d 463, 468 (Tenn.Ct.App.2001).
Givens v. Mullikin , 75 S.W.3d 383, 405 (Tenn. 2002).
The Governm

e n tal Tort Liability

Act section concerning public office rs and employee s en um er at es th e e xc ep ti on s t o t ha t a ct ’s re mo va l o f i mm un it y:
Immun ity from suit o f all go vernmen tal entitie s is removed

for injur y pr oximately caused by a negligent

act or om

i ssion of a

ny e mployee within

the scope

of his employ ment except

if the inju

ry arises out of:

. . . . (2) false imp

risonmen t pursuan t to a mittimu s from a court, false arrest, malicious prosecution, intentiona

l trespas s, abuse

of process, libel, slander, deceit, interference with contract

rights , infliction of mental anguish, invasion of right of priva cy , or civil rights;-9-

. . . . Tenn.Code Ann. §29-20-205 (2002)(emphasis added).
Thus under the plain language of the statute, the action for inducement to breach is barred, and the government is immune.
As a result, for the reasons and under the authorities enumerated, the action of the trial court is affirmed in all respects. The cause is re manded for othe r proce edings as necessary in the trial cou rt; th e co st s on app eal are ass ess ed a gai nst App ell ant HCC I.

___________________________________ WILL IAM B. CAI

N, JUDGE