IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 7, 2020 Session

PHILLIP MAHNKEN v. ANDREW BETTIS AVIATION, LLC

Appeal from the Circuit Court for Shelby County

No. CT-002666-18 Yolanda R. Kight, Judge

___________________________________

No. W2019-01903-COA-R3-CV

___________________________________

Employee sued his former employer for the compensation that he alleged he was owed 

under an employment contract. Following a bench trial, the employee was awarded 

damages representing thirty days’ compensation. The employer appeals, arguing that its 

nonperformance on the contract was excused by an implied condition. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY 

ARMSTRONG, and CARMA DENNIS MCGEE, JJ., joined.

William B. Ryan, Memphis, Tennessee, for the appellant, Andrew Bettis Aviation, LLC.

G. Coble Caperton and Warren P. Campbell, Memphis, Tennessee, for the appellee, Phillip 

Mahnken.

MEMORANDUM OPINION1

FACTUAL AND PROCEDURAL HISTORY

 

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse 

or modify the actions of the trial court by memorandum opinion when a formal opinion 

would have no precedential value. When a case is decided by memorandum opinion it 

shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

12/21/2020
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On February 6, 2017, Phillip Mahnken (“Appellee”) and Andrew Bettis Aviation, 

LLC (“Appellant”) entered into a written employment contract when Appellant hired 

Appellee as a pilot. When the parties could not agree on changes to the terms of their 

contract, Appellant terminated Appellee without cause. One of Appellee’s owners, David 

Turner, notified Appellant of his termination during a phone call on September 20, 2017. 

On that same phone call, after Mr. Turner notified Appellee that he was being terminated, 

Appellee notified Mr. Turner that he would be “going out on workers’ comp[ensation]” 

because of a back condition he was experiencing.2 Mr. Turner then sent Appellee a form 

entitled “State of Tennessee Department of Labor and Workforce Development Division 

of Employment Security Separation Notice” on September 21, 2017. The Separation 

Notice states, in relevant part, that Appellee’s last date of employment, before he was 

discharged, was September 20, 2017, and that the reason for the separation was an inability 

“to agree on acceptable contract terms regarding continued employment.” Appellee 

requested but did not receive wages for the thirty days after Appellant gave him notice of 

his termination (i.e., for September 21, 2017 through October 20, 2017). 

Appellee then filed a workers’ compensation claim for his back injury. The 

“Workers’ Compensation Closed Claim Notice” in the record indicates that the date of 

Appellee’s injury was September 20, 2017 and the cause of the injury was repeated lifting 

and sitting. The claim notice also indicates that Appellant had “knowledge”—whether that

Appellee filed a workers’ compensation claim or just that Appellee had an injury, it is 

unclear—on September 20, 2017, and Appellee made his report to the claims company on 

October 2, 2017. Appellee saw a doctor on October 18, 2017 as part of his workers’ 

compensation claim, at which time the doctor signed a “Work Status Form” that stated: 

“Recommended return to work on 10/18/17 with the following limitations: [] Light Work: 

Lifting 25 pounds maximum [and] No Flying Pending MRI.” The same form also indicated 

an apparent prescription or order for an anti-inflammatory medication, physical therapy, 

and an MRI of Appellee’s spine. Appellee saw the same doctor again on October 30, 2017, 

when the doctor signed another work status form, which this time had “10/30/17” written 

next to “Full Duty (No Restrictions)” under “Work Status.” It appears to be undisputed that 

this meant that the Appellee could return to full duty as of October 30, 2017.3

On November 21, 2017 Appellee filed a civil warrant in the Shelby County General 

Sessions Court (“the general sessions court”), alleging Appellant failed to pay Appellee the 

required wages under their employment contract. On February 26, 2018, Appellant filed 

its own civil warrant in the general sessions court against Appellee for reimbursement of 

$14,539.94 in training expenses it paid during Appellee’s employment.4 After trial on June 

 

2 At the bench trial in this case, Appellant played a recording of this phone call between Appellee 

and Mr. Turner. However, the recording was not itself entered in evidence as an exhibit, nor was it 

transcribed in the record.

3

It is unclear from the evidence in the record if Appellee saw this doctor for another visit between 

October 18, 2017 and October 30, 2017. He also apparently had an MRI in between those two doctor visits.

4 Appellant attached an itemized reimbursement schedule and an invoice addressed to Appellee 
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4, 2018, the general sessions court entered judgment in favor of Appellee on his civil 

warrant in the amount of $7,331.88, which the parties do not dispute reflects thirty days of 

pay. The general sessions court also entered judgment in favor of Appellee on Appellant’s 

civil warrant. Appellant appealed to the Shelby County Circuit Court (“the circuit court”) 

on June 7, 2018.5

A second bench trial occurred in the circuit court on September 9, 2019. The only 

witnesses to testify were Appellee and Mr. Turner. Mr. Turner testified that he did not learn 

of Appellee’s back injury or intent to file a workers’ compensation claim until his phone 

call with Appellee on September 20, 2017. In fact, from Mr. Turner’s testimony, it appears 

that only after he told Appellee he was fired during that conversation did Appellee then 

respond that he was “going out” on workers’ compensation due to his back issues. Mr. 

Turner testified, however, that it is Appellant’s policy to take pilots who cannot fly at full 

duty off of flight status and not pay them, but offered no documentary proof of this policy. 

He also testified unequivocally that regardless of whether Appellee had a disability or not, 

he had no intention of requesting Appellee to fly after September 20, 2017, and that he 

considered Appellee to be fired effective that date. 

Appellee testified that he had been flying with back pain since approximately a few 

months after beginning his employment with Appellant, and Mr. Turner confirmed that 

there had never been any problems with Appellee’s performance as a pilot. Appellee 

testified that he had spoken to his personal doctor about his back pain, but that no doctor 

had recommended he be suspended from flying prior to his termination. He testified that 

the doctor he saw on October 18, 2017, only recommended that he not fly until he had an 

MRI and that he be put on light duty, but that a doctor cannot suspend him from flying, 

only the FAA can take that action. He also testified that he had spoken to his immediate 

supervisor about his back pain, but, again, Mr. Turner testified that he was not aware of 

Appellee’s back injury/workers’ compensation claim until after he had already fired 

Appellee. 

 

dated September 28, 2017 to its civil warrant, along with a copy of the parties’ employment contract. The 

provision in the employment contract dealing with reimbursement of expenses is in Section 10, 

“Termination of Agreement,” and states as follows:

In the event Employee terminates this Agreement, or Employee loses medical 

and/or flying authority from the Federal Aviation Administration (FAA), Employee shall 

fully reimburse Company upon exit day, of full time employment, for any and all expenses

associated with residential re-location and initial and continuing annual flight training and 

education paid by Company. This would include any re-location expenses, training and 

flight check cost, airfare, hotel, meals, and salaries paid to employee during the training 

period.

5

It appears that Appellant abandoned its claim for reimbursement of training expenses on appeal 

to the circuit court. In any event, Appellant has not raised that claim in any form in the instant appeal, and 

therefore we need not address it.
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The circuit court also entered judgment in favor of Appellee, on October 3, 2019. 

The circuit court’s findings included that the demeanor and testimony of Appellee and Mr. 

Turner were credible, and that Appellee was entitled to payment for the thirty days after 

his termination in the amount of $7,331.88. Appellant timely appealed to this Court.

ISSUES PRESENTED

The main issue in this case, as raised by both parties, is whether Appellee is entitled 

to recover thirty days’ worth of pay from Appellant.6 Appellee raises an additional issue: 

whether the appeal filed by Appellant is frivolous. We will address these in turn.

STANDARD OF REVIEW

We review a trial court’s findings of fact de novo with a presumption of correctness, 

unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); see also In re Estate 

of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). “For the evidence to preponderate 

against a trial court’s finding of fact, it must support another finding of fact with greater 

convincing effect.” Dunn v. Matrix Exhibits, Inc., No. M2003-02725-COA-R3-CV, 2005 

WL 2604048, at *2 (Tenn. Ct. App. Oct. 13, 2005) (citations omitted). “The trial court is 

in the best position to resolve factual issues that hinge on credibility and an appellate court 

will not re-evaluate a trial court’s assessment of a witness’s credibility absent clear and 

convincing evidence to the contrary.” Hutchings v. Jobe, Hastings & Assocs., No. M2010-

01583-COA-R3-CV, 2011 WL 3566972, at *2 (Tenn. Ct. App. Aug. 12, 2011) (citation 

omitted).

DISCUSSION

I.

This breach of contract action originated when Appellee claimed that under his 

employment contract with Appellant he was entitled to, but did not receive, thirty days’ 

notice of his termination and compensation for those thirty days. The parties stipulated that 

paragraph 10 of their contract governs termination without cause. The relevant provision 

of paragraph 10 reads as follows: 

Without cause, the Company or Employee may terminate this 

agreement at any time upon thirty (30) days’ written notice to the other party. 

In the event Employee terminates this Agreement, or Employee loses 

 

6 Each party phrases the issue slightly differently in their appellate brief. Appellant asks “whether 

Mr. Mahnken is entitled to recover 30 days of pay from Andrew Bettis Aviation, LLC where it was 

undisputed that he was physically unable to work, by virtue of disability, for that 30-day period.” Whereas, 

Appellee asks if “the trial court err[ed] when it awarded Appellee/Plaintiff thirty (30) days wages from the 

Appellant based on the employment agreement between the parties.”
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medical and/or flying authority from the Federal Aviation Administration 

(FAA), Employee shall fully reimburse Company upon exit day, of full time 

employment, for any and all expenses associated with residential re-location 

and initial and continuing annual flight training and education paid by 

Company. This would include any re-location expenses, training and flight 

check cost, airfare, hotel, meals, and salaries paid to employee during the 

training period. Without limitation, termination of Employee pursuant to this 

Section 10 shall not relieve Employee of his/her obligations

under Section 6 hereof.

Appellee contends that Appellant breached the above contract when it terminated 

his employment without cause but refused to give him the required thirty days’ notice and 

thereafter refused to pay him for that thirty-day period. “When a plaintiff alleges breach of 

contract, he or she is responsible for proving (1) the existence of an enforceable contract, 

(2) nonperformance amounting to a breach of the contract, and (3) damages caused by the 

breach of contract.” BancorpSouth Bank, Inc. v. Hatchel, 223 S.W.3d 223, 227 (Tenn. 

Ct. App. 2006) (internal quotation marks omitted) (quoting Custom Built Homes v. G.S. 

Hinsen Co., Inc., No. 01A01-9511-CV-00513, 1998 WL 960287, at *3 (Tenn. Ct. App. 

Feb.6, 1998)). 

Appellant does not dispute the existence of the above contract, nor does it dispute 

that Appellee’s employment was terminated without cause. Rather than focusing on the 

express terms of the contract, Appellant resorts to an implied condition that it asserts is 

relevant in this case, citing Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713 (Tenn. Ct. 

App. 1998). Specifically, the Jenkins panel held that “[c]ontracts to perform personal acts 

are considered as made on the implied condition that the party shall be alive and capable 

of performing the contract, so that death or disability, including sickness, will operate as a 

discharge, termination of the contract, or excuse for nonperformance.” Id. at 720–21. 

According to Appellant, the employment contract qualifies as a personal services contract, 

and Appellee does not dispute this. Moreover, Appellant asserts that “because [Appellee] 

was not physically able to perform his responsibilities and duties as a pilot due to his 

medical disability, under the parties’ employment agreement, [Appellant’s] obligation to 

pay [Appellee] during the 30-day notice period following his termination was fully excused 

and permissible under Tennessee contract law.”

The trial court, however, rejected Appellant’s argument. Specifically, the trial court 

found that Appellant was required to give Appellee thirty days’ written notice of the 

termination of his employment and that Appellee was entitled to compensation during that 

thirty-day period. Moreover, the trial court found that 

[Appellee] was not disabled when he was terminated and [Appellant] didn’t 

advise [Appellee] that it considered him to be disabled due to [Appellee] 

filing a worker’s compensation claim the day after he was terminated and 
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that it needed him to get a medical release to fly. Mr. Turner testified that he 

had no intention of calling [Appellee] in to work after his termination on 

September 20, 2018.[7] Had [Appellee] been called to perform the services 

that he agreed to under the contract, he most likely would have adhered to 

the contract terms. 

Appellant argues on the appeal that the trial court erred in finding that Appellee was 

not disabled during the relevant thirty-day period and that its finding that Appellee was 

entitled to an additional thirty days’ pay must therefore be reversed, again relying on 

Jenkins. It is true that in the context of personal services contracts, when a party’s 

disability prevents him from being able to perform his contractual duties, it operates as a 

discharge, termination of the contract, or excuse for nonperformance, unless the parties 

contract otherwise. See Cochran v. Robinhood Lane Baptist Church, No. W2004-01866-

COA-R3-CV, 2005 WL 3527627, at *4 (Tenn. Ct. App. Dec. 27, 2005) (citations omitted); 

Jenkins, 990 S.W.2d at 720–21 (citations omitted); Am. Nat. Ins. Co. v. Jackson, 12 Tenn. 

App. 305, 308–09 (Tenn. Ct. App. 1930), perm. app. denied (Tenn. Feb. 7, 1931) (“A 

contract for personal service is terminated by the death, insanity, sickness, or permanent 

disability of a servant, whereby he is unable to perform his contract, unless the parties 

contracted to the contrary.”). Thus, this general rule is applicable unless the parties provide 

otherwise in their contract.

The trial court’s order appears to credit Appellant’s argument that this condition 

was indeed applicable and may constitute a proper defense to Appellee’s breach of contract 

action. Upon our de novo review of the contract’s terms, however, we are not necessarily 

convinced. See Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999) (“The 

interpretation of a contract is a matter of law that requires a de novo review on appeal.”). 

While the employment contract is silent as to death of one party, it is not silent as to the 

disability of Appellee. Specifically, paragraph 10 of the contract, wherein it provides for 

the thirty days’ notice of termination without cause, also states: “In the event . . . Employee 

loses medical and/or flying authority from the Federal Aviation Administration (FAA), 

Employee shall fully reimburse Company . . . for any and all expenses associated with 

residential re-location and . . . training and education paid by Company.” (emphasis added). 

This language, as well as its placement in the section of the contract dealing with 

termination without cause, leads us to two fairly obvious conclusions: (1) that the contract 

specifically deals with the issue of a disability preventing a pilot from flying but does not 

excuse Appellant from payment for the thirty-day notice period during this time; and (2) 

that such an inability to fly must be determined by the FAA. Because the employment 

contract contains an express term regarding the proper method of determining a disability 

and its remedy, it appears that it should control over the more general rule supplied by the 

common law. Cf. Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. 

 

7 We conclude based on the record that this must be a typographical error, and should instead state 

that the date was September 20, 2017.
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App. 1999) (“If the contract is plain and unambiguous, the meaning thereof is a question 

of law, and it is the Court’s function to interpret the contract as written according to its 

plain terms. . . . Courts cannot make contracts for parties but can only enforce the contract 

which the parties themselves have made.”). 

There can be no question that Appellant cannot meet the express requirement of the 

employment contract to show that Appellee was disabled. Appellee confirmed that only 

the FAA can suspend him from flying—a doctor cannot. Mr. Turner testified, and Appellee 

does not seem to dispute, that under FAA regulations, pilots are obligated to report any 

problems they have that would interfere with their pilot duties, including injuries. However, 

Appellee testified that he was not required to report this specific injury to the FAA. Indeed, 

Mr. Turner conceded that he did not notify Appellee that he needed to report his injury to 

the FAA, and there is no proof that the FAA was involved in this case at all. In fact, Mr. 

Turner testified that he did not advise Appellee that Appellee would need a medical release 

before he would be called to fly “because [Mr. Turner] never intended to call [Appellee] 

to fly [after terminating him.]”

Still, Appellant cites Mr. Turner’s testimony that pursuant to Appellant’s policy, if 

an employee-pilot reports an injury that could affect their ability to fly, Appellant takes the 

pilot off of flight duty until the injury is addressed and there is medical proof that the pilot 

is cleared to fly at full duty. Mr. Turner also testified that Appellee “would have” been 

removed from flight status and not paid, pursuant to this policy. We cannot conclude that 

this testimony changes the result. Here, Mr. Turner provided no documentary proof to 

support the existence of this policy, such as an employee handbook, and this policy is 

certainly not reflected in the employment contract. The employment contract, however, 

contains an integration clause: 

This Agreement contains all of the understandings and representations 

between the parties pertaining to the subject-matter hereof and supersedes all 

other prior undertakings, terms of employment, offer letters, and agreements, 

whether oral or in writing, if any. This Agreement may be modified only by 

an instrument in writing signed by all the parties.

Mr. Turner’s testimony that Appellant had some unwritten policy concerning disability 

therefore does not alter the plain mandate of the contract that only the FAA will be 

authorized to determine a pilot’s ability to fly and that the remedy for such a disability is 

the reimbursement of certain expenses. Under these circumstances, it appears that nothing 

in the plain language of the contract authorized Appellant to deny Appellee payment of 

thirty days’ compensation. 

Moreover, even assuming, arguendo, that the Jenkins implied condition is 

applicable to the employment contract at issue, we conclude that it provides no support for 

Appellant’s position. Appellant does not dispute that it terminated Appellee’s employment 
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effective September 20, 2017. Mr. Turner testified at trial, and the Separation Notice 

confirms, that Appellant intended to terminate Appellee’s employment as of September 20, 

2017, the same date Mr. Turner notified Appellee orally of his termination. Mr. Turner also 

testified that he “wasn’t going to ask [Appellee] to fly after [September 20, 2017]” under 

any circumstances—regardless of whether Appellee was injured or intended to file a 

workers’ compensation claim. 

Furthermore, the proof showed that the catalyst for the termination was not any 

alleged disability, nor did Mr. Turner even know of Appellee’s alleged disability before he 

fired Appellee. Mr. Turner testified that he was not aware of Appellee’s intent to file a 

workers’ compensation claim for his injury until after he had already terminated Appellee 

during their phone call on September 20, 2017. Therefore, the proof is unequivocal that 

Appellant intended to terminate, and did terminate, its employment contract with Appellee 

on September 20, 2017, without any knowledge or consideration of any alleged disability.

Under these circumstances, Appellee’s ability to fly or perform his contractual 

work duties after that date is completely irrelevant—his employment contract had already 

been terminated. As the language of Jenkins makes clear, the rule allows for the discharge, 

termination, or nonperformance on a contract when death or disability prevents a party 

from being “capable of performing the contract[.]” Jenkins, 990 S.W.2d at 720–21. In 

other words, Appellant essentially argues that it should be excused from performing under 

the contract, i.e., paying thirty days’ compensation because Appellant had a disability that 

rendered him unable to perform “his responsibilities and duties” under the contract. The 

problem with this argument, however, is that it ignores the fact that it was Appellant who 

terminated the employment contract without cause—that is, not based on any purported 

disability. In other words, Appellant had already rendered Appellee unable to perform the 

contract when it fired him on September 20, 2017. As of that termination, Appellee no 

longer had any “responsibilities and duties” to perform. Any attempts to glom Appellant’s 

later knowledge of Appellee’s back injury, worker’s compensation claim, and light duty 

recommendation onto Appellant’s efforts to reduce the money owed to Appellee are 

nothing more than revisionist history. Indeed, the doctor’s recommendation did not even 

occur until near the end of the thirty-day period at issue. And Mr. Turner testified 

unequivocally that he would not have asked Appellant to return to his duties after firing 

him on September 20, 2017, regardless of any alleged disability. Simply put, the facts show 

that by terminating Appellee’s employment on September 20, 2017 without cause or 

notice, Appellee’s performance under the contract was therein excused. His alleged 

inability to perform on the contract thereafter is wholly irrelevant.

In sum, Appellant’s arguments on appeal fail on a number of grounds. Suffice it to 

say, Appellant has not shown that it complied with the express terms of the contract or that 

its nonperformance of the contract was in any way excused. Therefore, we arrive at the 

same conclusion as the circuit court, albeit by way of a different analysis. See Robinson v. 

Currey, 153 S.W.3d 32, 40 (Tenn. Ct. App. 2004) (quoting Shutt v. Blount, 249 S.W.2d 
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904, 907 (Tenn. 1952)) (“If the Trial Judge reached the right result for the wrong reason, 

there is no reversible error.”). Appellee was entitled to thirty days’ notice, and thus pay for 

those thirty days, under the express terms of the contract. See Phillips v. Morrill Elec., 

Inc., No. 03A01-9901-CH-00030, 1999 WL 771511, at *5 (Tenn. Ct. App. Sept. 15, 1999) 

(citing 27 Am. Jur. 2d, Employment Relationship § 43 (1996)) (“[A]n employee who is 

summarily discharged with less notice than specified under the contract may recover 

compensation for the notice period only, and not for the balance of the contract period.”). 

Therefore, we affirm the trial court’s decision that Appellee is entitled to payment from 

Appellant in the amount of $7,331.88. 

II.

We next consider Appellee’s request to deem this appeal frivolous and award him 

attorney’s fees. Tennessee’s frivolous appeals statute reads as follows:

When it appears to any reviewing court that the appeal from any court of 

record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include, but need not be limited to, costs, interest on 

the judgment, and expenses incurred by the appellee as a result of the appeal.

Tenn. Code Ann. § 27-1-122. This Court has previously elaborated on what constitutes a 

frivolous appeal:

Successful litigants should not have to bear the expense and vexation of 

groundless appeals. An appeal is frivolous when it has no reasonable chance 

of success, or is so utterly devoid of merit as to justify the imposition of a 

penalty. We exercise our discretion under the statute sparingly so as not to 

discourage legitimate appeals. 

Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006) (citations and quotations 

omitted). Our supreme court has described awards of attorney’s fees for frivolous appeals 

as follows:

[I]f the appellate court determines that an appeal is frivolous, the appellate 

court may award attorney’s fees pursuant to this statute. Any such award rests 

in the appellate court’s sound discretion. See Chiozza v. Chiozza, 315 S.W.3d 

482, 493 (Tenn. Ct. App. 2009) (“The decision to award damages for the 

filing of a frivolous appeal [under section 27-1-122] rests solely in the 

discretion of this Court.”). This discretion is exercised “sparingly so as not 

to discourage legitimate appeals.” Whalum v. Marshall, 224 S.W.3d 169, 

181 (Tenn. Ct. App. 2006).
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Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017). 

Although Appellant’s argument is not in any way persuasive for the reasons 

explained above, we still cannot conclude that this appeal was wholly frivolous. 

Importantly, Appellant’s brief was fully complaint with Rule 27 of the Tennessee Rules of 

Appellant Procedure and its argument, though strained, was supported by appropriate 

citations to authority. We therefore decline to find that this was a frivolous appeal. 

CONCLUSION

For the foregoing reasons, the judgment of the Circuit Court of Shelby County is 

affirmed. Costs of this appeal are taxed to Appellant Andrew Bettis Aviation, LLC, for 

which execution may issue if necessary.

 

S/ J. Steven Stafford 

 J. STEVEN STAFFORD, JUDGE