# FILED Jan. 31, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) SAM POSEY , DANNY T ODD, BILLY ) Shelby County Chancery

Court CHITWOOD, a

nd JIMMY P

ORTER , ) No. 102072-1 R.D.

) Plaintiff

s/Appella nts. )

) VS. ) C. A. NO. 02A01-9603-CH-00058 ) CITY OF M

EMPHIS, T ENNESSEE, ) DIVISION OF

FIRE SERVICES OF ) MEMPHIS, TENNESSEE, DR. W. W. ) HERENTON, M ayor, WESTEL LE ) FLOREZ, Director of the Division of ) Perso nnel, and CHA RLES SMITH , ) Direct or of the D ivision of F ire Serv ices, ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Chancer y Court of Shelby

County at Memphis
. Honorable Neal Small, Chancellor

Mark Allen , Florence M. Johnson , AGEE, ALL

EN, GODWIN, MORRI S & LAURENZI , Memphis, Tennessee Attorney for Plain tiffs/App ellants.

Louis P. Br

itt, III , Charles V . Holmes, Robert E. Teutsch, Jr. , McKNIGHT, HUDSON, L EWIS & HENDERSON, PL LC, Memphis, Tennessee Attorney s for Def

endants/ Appellee s.

OPINI ON FIL

ED: VACATED A ND REMAN DED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) TOMLIN, Sr. J. : (Concur s)1 The record establishes that Appellant Sam Posey is a fireman with 30 ye ars of service with the Division; Appellants Danny Todd and B illy Chitwood have been employ ed by the Division for 20 and 27 yea rs respectively , both currently ser ving in the rank of Lieute nant; and Appellant Jimmy Porter is a former firema n with the Division, retiring in 1990 after over 30 years of service. The appellants to this action are either current or retired firemen for the Division of Fire Services of Memphis, Tennessee (Division). 1 They appe al from a judgment of the trial court in favor of Appellees, City of Memphis, Tennessee (City ), the Division, Dr. W. W. Herenton, Mayor, Westelle Flor ez, Director of the Division of Personnel, and Charles Smith, Director of the Division,
on their action seeking declar atoryand injunctive relief regarding the appellees’ method of computing pension benefits for those firefighters employ ed by the City

for 30 or more ye ars. After review of t he record, we vacate the judg ment of the trial court and remand this cause for f urthe r proceedings consistent with this opinion. We set forth our reasons below.

The complaint alleges that Appellees violated the City ’s “Pension Ordinance” of the Code of Ordinances, City

of Memphi s, as amended December 1989, when c alculating the pensions of its thirty y

ear fire service employ

ees upon the salary

of the former rank of

“Captain” as opposed to that of “Battali on Command er.” The ordina

nce, co dified a

t Section 2 5-1(4)( a)(I

II ), read s:

For any Police Of

ficer o r Firef ighter credite d with thir

ty (30) or more Yea

rs of Ser vice, and eligib le for a

utomati c pro motion to captain or comparable rank

in the Police or Fire Divisions of the City under Charter Section 67 , his aver

age mon thly compensa

tion shall be the curren

t monthly base com

pensatio n of a ca

ptain or c omparab le rank in the Polic e or Fir

e Division s of the Cit

y as of the d ate of hi s retirem ent, pl us an y sh if

t p re mi um pa y, h az ar do us pr em iu m p ay, holiday pay , longevit y pay

an d i nc en ti ve pa y, e xc lu di ng ov er ti me pa y, earned during t he immedia

tely preced ing twelve (12)months.

Section 67 of the City

Charter , as state d in the co mplaint, r eads:

Section 67 . Automati c promotion to capta in after thirty (30) y ears. Any fireman or

policema n, who sha

ll have se rved the City of Memphis for a pe

riod of th irty (3 0) ye ars, either continuously or in te rm it te nt ly, shall, at the expiration of said thirt y (3 0) y ears, automatic ally

be promoted to the rank

of captain of thefire division o r captain of the pol

ice divisi on, with a

ll of the sa

lary , emolume

nt s andot h er privileges of said rank; and, upon the re tirement of such firemen or policemen, he shall receive a pension as captain.Automatic promotion to the rank of capta in in either the fire services division or the pol ice div ision as set out in the above paragraph shall not apply to any

person employed by

the City after the date of January 31, 1979. (Priv. Acts 1927, Ch. 521; Ord. No. 2725, §1, 5-23-78).

It is further alleg ed:

In May of 1988, the . . . [Division] underwent a personnel reorganization. As a resu

lt of this reorganization, the City eliminated the position of captain i n the [Division], and created the position of Battalion Commander. Those persons who, prio

r to May of 1988, h

eld the position of Captain, were either reclassified as B attalion Commanders or were retired. Therefore, at the time of passage of §25-1(4)(a )II I . . . , the position of

Captain in the Fire Services Division had been eliminated. As a result of

the reorganization . . . the position of Battalion Commander

beca me a “c omparab le rank”to that of C aptain wi thin the meaning of §25-1(4)(a)(I II) . . . . Rather th an pay re

tiring thirty (30) y

ear firemen benefits based upon rank comparable to that of the non-existent captain’s position, the city crea

ted an imaginary

captain’s position and retired officers at this artificially cre ated salary scale. This imaginary

captain’s position was created to and had the effect of avoiding comp lia nce wit h t he d ict ate s of §25 -1( 4)( a)( III) which mandate d that re

tirement b en efits be figured on the pay of a person holding a rank comparable to that of a captain.
Appellan ts also allege a violation

of their equal protection rights afforded under the Fourtee nthAmendmen

t. It i s averred that in June 1992, the City enter ed into a settlement agreement withcertain police officers which provided that upon a police officer’s retireme nt after thirty y ears of service, he/she would be entitled to the benef its an d privileges of the rank of “Commander.” Appellan ts allege that purs uant to suc

h agreement, the City paid certain re tiring police officers retroa ct ive pay and be

nefits. It is further alleg ed that by virtue of the agreement, the position of police commander became a “compar able rank” to that of a police captain within the meaning of the ordinance. Thus, it is asserted that Appellees have violated Appellants’ equal protection rights inasmuch as thirty

ye ar polic emen ar

e paid “those benefits required by § 25-1(4)(a)(I

II),” but not thirty y ear firemen.The appellees, for answer, admitted that a re organization of the management structure

of the City’s fire depa

rtment had taken place in 1988, effectively eliminating the position of captain, andthat the City had entered into a settlement agreement, but deniedthat such agreement provided
a basis upon

which App ellants c ould institu te their a ction. Ap

pelleesspecific all y averr ed that “Police Captain is a separate and distinct rank within the Memphis Police Department.” Appellees denied a ll remain ing mate rial alle gations
. Appellees moved for sum mary jud gment, asserting that “firefig hters having 30 or
more ye ars of se

rvice, a nd eligi ble for a utomatic p

romotion to

the rank of captain . . . are not entitled pursuant to [the pension ordinance] to have their pensions based upon the base compensation of a battalion commander. . . .” Theaffidavit of Charles Smith, submitted in support thereof, details the
reo rganization processand state s, in eff ect, tha t the positi on of batt

alion com

mander i s not a “compar able rank” to that of captain. Th e affid avit confirms that since the reorganization and elimination of the position of captain, the Division has maintained a captain’s salary

on its pay

roll for the purpose of calculating those pensions due firefighters with thirty or more yea rs of service and eligible for automatic promotion under Section 67. Appellants responded by filing the affidavit of Mr. Chitwood which, in part, addres ses the clai m of an equal protection violation by noting the settlement

agree ment her ein ref erenced. Chitwood

states, “ [t]he City

has ref used to ap ply that same principle [as set for th in the a greem ent] to Fire Services Division employ ees notwithstanding the fact that the City likewise created a Commander position in the Fire Services Division with similar duties to that of what was formerly a 30-yea r Captain.” A copy of

the agr eement w as attached to Chitwood’s affidavit. The motion was denied.

A hearing before the trial court was held with only arg

uments of counsel presented; no evidence was taken. I n ruling from the bench, the trial court stated:

I under stand what you a re saying, and I don’t bel ieve the re is any dispute about it. W h en they dra stically reduced the number of captai ns in thi s reorganization, the captains that were lef t took over the expand

ed respo nsibilities
.

. . . . And the next ste

p was th a t they completely abolished the po sition of captain and gave them the title of battalion commander ;2 The aff idavits se t forth the various m

ethods, a s conside

red by the trial court, to calcula te Appellan ts’ pensions. . . . .

. . . . You know, gent

lemen, of course we’re not rea lly talking ab ou t a summary judgment motion here today . We’re here to try the case.

. . .

. . . . The City is urging that there is no captain’s position now for th em to be promoted to, so they presumably would retire as lieutena nts. On the other hand, their pos ition is that some or maybe a

lot or most of the duties of what used to be a captain’s is now taken over by the battalion commanders, so they ought to retire as battalion commande

rs or the salary paid batt alion com manders
.

. . . .

. . . . It just appears to the Court that the . . . equitabl e result of the dispute

for those be somewhere between the c aptain’s salary or ra th er th e l ie ut en an t’ s s al ar y an d t he ba tt al io n c om ma nd er ’s sa la ry. I just don’t see any need of any proof . Eve rythinghas been presented in the pleading s and ope

ning sta tements. T

here jus tdoesn’t seem to be a dispute. The question is what should these gentlemen’s re tir em ent be ba se d on ?

The court then proposed its ow n formula for correctly computing the pension of a thirty year f irefighter. Appellees’ counsel e xpressed t heir

dissatisfaction with the court’s suggestion. The court thereafter

commente d that re spective counsel h ad been

given a n opportun

ity t o discuss the proposal and work toward a resolution and that “[it did not] know what proof would do.” The court then ruled fr

om the bench in acc ordance with its pro

posal, but allowed t

he parti es to submit

post hearing memoranda.

After the submission o f affida

vits 2 from both

sides, the trial court entered a judgment findi ng:
[T]hat the positio n of Bat talion Comma

nder in the City

of Memphi s Fires Service s Divis i on is not a “Comparable Rank” to the former rank of Captain within the meaning of § 25-1(4)(A)3 of the Code of Ordinances of the City of Memphis and, as such, a 30-year firefighter is not entitled to have his pension based upon the salary of a BattalionCommander. The Court further find s that the City’s use of the Captain’s salary a s maintained by the City of Memphis Fire Service s Divi sion for purposes of calculating the pension of a 30 -yea r firefighter

providessuch fir

efight er with a ll the benefits and pension rights afforded by

§ 25-1( 4)( A)3 of the Code of Ordinances of the City of Memphis.
Appellan ts’ request for a new tri al, on gro unds that they were denied a right to a trial and that the court did not address their equal protection claim, was denied.

Appellan ts identif y the issues f

or revie w as follo ws:

1. Whether Plaintiffs/Appellants right to trial was impro perly denied by the Chanc ellor. 2. Whether Pl ain tiffs/Appellants due process rights were vi olatedas guaranteed by the Fifth and Fourteenth Amendments of the United States Cons titution, a nd the Ope

n Courts, and Law of the Land provision s of the Tennes see Constitution, and whether the Court erred in fai l ing to address Plaintiffs/Appellants Equal Protection ar gu me nt in it s e nt ir et y.
Appellee s raise th

e following issue s:

1. Whether the Court below correctly determined that the position of battalion commander is n ot a “comparable rank” to the former rank of captain within the meaning of §25-1(4 )(A)3 of the code of o rdinanc es of the

City of Memphi s. 2. Whether the Court below correctly determined that the C ity’s use of the

captain ’s salar

y a s maintained by

th e C it y o f Me mp his Fire Services Division for purpose[s] of calculating the pension of a 30-y

ear fir efight er provi des such f

irefig hter with all the benefit s and pension rights afforded by § 25-1(4)(A)3 of the code of ordinanc es of the

City of Memphi s.

We first consider the c ourt’s alleged error in failing to address Appellants’ equal protection claim, as we find it dispositive. It is notable that at the hearing, the trial court considered the taking of proof

unnecessary , finding “no dispute,” but had earlier denied the motion for summary judgment filed by Appell ees. Cle arly, the alleg ation regarding a violation of Appellants’ e qual p rotection rig hts, raised in the pleadings and argued by respective counsel at the hearing, was not3 The court’s only c omment on the issue came just prior to its oral ruling from the bench,

when sta ting: Or if y ’all can

work out a

nyt hing tog ether, c ertainly

the Court w ould be g lad to have you do so, and it would be to the a dvantage of all parties concer ned if you can do it like they

did with the

police sit uation, a lthough I am not fa

miliar wit h that at all and didn’ t hear it. addressed or ruled upon by the trial court. 3 It i s, th us , n ec es sa ry t o remand this ca use to the trial court for the taking of evidence in order for the trial court to determine whether Appellees violated the Appellan

ts’ equa l protec tion rights as granted under the Fourteenth Amendment. In view of our remand, the remaining issues are pre termitted.
The judgment of the trialco ur t i s, ac co rd in gl y, vacate d and this c ause re manded to the trial court for further proceeding s as hereinabove set forth. Cos ts are a ssessed t o the appe

llees, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

_______________________________

FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ TOML IN, Sr . J. (Concur s)