# FILED

March 27, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

ROCK ABOU-S AKHER, ) ) Plaintiff /Appella nt, )

) Humphreys Chancery ) No. 22-38 1 VS. ) ) Appeal N o. ) 01A01-9604- CH-00185 HUMPHREYS COUNTY, TENNESSEE ) and HUMPHREYS CO UNTY AIRPO RT ) AUTHORITY, ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CHANCERY COURT FOR HUMPHREYS COUNTY

AT WAVERLY, TENNESSEE THE HONORABLE LEONARD W. MARTIN, JUDGE

For the Plaint iff/Appe llant : For the Defendants/Appellees : Calvin P. Turner John Lee Williams Lebanon, Tennessee Waverly, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 A fixed-b aseoperator fuels, services, and hangar s airplanes in much the same way that

a service station provides simila r services for automobiles. American Eagle Ins. Co. v. Thompson, 85 F.3d 327, 328 (8th Cir. 1996); City of Pompano Beach v. F.A.A., 774 F.2d 1529, 1533 n.5 (11th Cir. 1985). -2-



## O P I N I O N

This appeal inv olves a dispute betwe en Humphr eys Countyand theformer fixed-ba se operator

of the Hum

phreys County Airport. After the county declined to renew t he fixed- base operator ’s lease and hired a full-time airport m anager, the former fixed-ba se operat

or filed suit in the Ch ancery C ourt for H umphreys C ounty seeking a declaration that his lease r emained i n effec t and chall enging his terminat ion as part -time airport man ager. T he trial courtheard the

case wi thout
ajury an d foun d that the f ixed-base operator ’s lease had expire d and that th e plaintiff was not entitled to reinstatement as part-time airport manager. We affir m the judgment.

I.

On March 1, 1987, Rock Abou- Sakher a nd Humphreys County ent ered into
afixed-base operator’s lease agreement whereby Mr. Abou- Sakher be came the fixed-ba se operator 1 at the Hum phreys County Airpor t. The a greement also provided thatMr. A bou-Sakher would be “designated personally as the Airport Manage r.” The ini tial term of the lease was five years, and the lease perm itted Mr. Abou-Sa

kher to renew t

he lease f or one additional five-yea r period. The lea se also required

Mr. Abo u-Sakher

to pay $1.00

per year as rent, but bothMr. Abo uSakher a nd the county

ignored thi s provision.

Some time late

r, the c ounty began payin g Mr. Abou-Sakher as a part-time county employee. As time p assed, Mr . Abou-S akher pre ssed thecounty fora fulltime job because

he desire d to qualify

for the c ounty’s grou

p health ins u ranc e plan. The count

y never ac ceded to Mr . Abo u-Sakh er’s request for full-time employment , and neithe

r the count

y nor Mr. Abou-Sa

kher form ally rene wed the-3-

fixed-ba se operat or’s lease when it expired in March 1992. Nonetheless, Mr. Abou-Sakher continued to function as the airport’s fixed-base operator.

In Dec ember 1992 , the county create d an airpor t authority

to ov ersee th e airport, and Mr. A

bou-Sakhe

r became the author

ity’s fir st secret ary. In

mid-1994, the airport authority obtai ned funds to hire a f ull-time a

irport ma nager and advertised for the pos ition. Mr . Abou -Sakherand others applied fo r the job. During the selec tion proces s, Tra vis Jenkins r

eplaced Mr. Abou- Sakher a s the airportauth ori ty’s secr

etary fol lowing a pub lic alter cation bet

ween Mr . AbouSakher and the airport authority’s chairman. The airport authority interviewed Mr.Abou-Sakher

and the othe

r candida tes and in August 1994 hired Mr. Jenkins as the airport’s first full-time mananger.

On September 1, 1994, the chairman of the airport authority informed Mr. Abou-Sakher

by mail and telephone call that he was no longerthe manag er of the Humphrey s County airport and that he would be re qu ired to negotiate another fixed -baseoperator ’s lease with Mr. Jenkins bec ause the ol d lease had expir ed

. The chairman also informed Mr. Abou-Sakher that the a uthority re served the

right to review and approve any new fixed-base operator’s lease.

On November

15, 1994, Mr. Abo u-Sakher sued thecounty and the airport authorityin the Chan cery Cour t for Hum phreys County seek

ing a declara tion of his rights under

the 1987 fix ed-base o perator’ s leaseagreement and his status as
acounty em ployee. On the same day, the county filed an unlawful detainer action in the Humphreys County General Sessions Court seeking to recover the airport propertystill in Mr . Abou-S akher’s p ossession. The cir cuit court c ons olidated both cases af

ter Mr. Abo u-Sakhe

r appeale d the adver se genera l sessions ju dgment to the circ uit court.
Followinga bench trial in October 1995, the trial court determin ed that the 1987 fixed-base operator’s lease agreement expired in March 1992 and that Mr. Abou-S akherhad been a holdover te nant there after. The tria l court a ls o determined that the county’s selection of a full-time airport manager violated the Suns hine Law but that Mr. Abou-Sakher did not have a contract right under t h e-4-

fixed-ba se operator ’s lease agreeme ntto be employed as the airport manager. Mr. Abou-Sak

her has ap pealed fr

om this judgment.

II. R ENEWAL OF THE L EASE A GREEMENT

Mr. Abou-Sa

kher asse rts that the

1987 fixed- base oper ator’s le ase is still in effect either beca use he exerc ised the renewal opt ion or beca

use the Coun

ty waived its right torequire strict com pliance w ith the lea se’s rene wal provi sions. We have determined that Mr. Abo u-Sakher did not eff

ectively r enew the 1987 fix ed-base

operator ’s lease and that the county did not

waive it s right to r

equir e Mr. Abo u-Sakher

to comply w ith the lea se’s rene wal provi sions.

A.

The 1987 fixed- ba s e operato r’s leas e agreem ent contai ned the fol lowing
renewa l provision: 2.) The Lessee shall have the option to renew th e leasefor an additional peri od of five (5) years on th e same terms and

conditions he

reinexpresse d by giving notice to th e Lessor

in writin g of the

Lessee’s election to extend this lease with the same to be given no later than sixty (60) days befor e the expiration of the original five (5) year per

iod. Mr. Abou- Sakher asserts that he provided the county with written notice consistent

with this pr

ovision in three letters between March 30, 1989 and

July 29, 1991.

Mr. Abou-Sakher’s March 30, 1989 letter related to the rec lassifica tion of his part-t ime position

to a full- time positi on. He st ated: This is to confir

m that I’ m not reque sting any inc rease in salary or any change to my exis ting or next contract with the county. My main inter

est in this move is to get

on the county

health pla

n. He closed his letter by stating: “Looking Forward To Serving The Airport and The County For

Many More Years To Come.” In the same vein, Mr. Abou-Sakher’s April 11, 1991 letter

stated:-5- Please be informed that I’m interestedin renewing my contractwith the c ounty fot [sic] next five year period. However as we ha ve discussed I

would like for y ou to help p u t me on the county health plan, knowing that will not change this or

the next contract period ter

ms or conditions. Finally, Mr. Abou-Sakher wrote in his July 29, 1991 letter:

Even though my cont

ract wi th the county as fixed base operator is [sic] s till have so me time togo, I wou ld like to list [sic] your help a

nd supp ort to chan ge my statu s withthe county a s a part ti me airpor t manager to a full time, w ith the next

contract period.

B. T HE E XERCISE OF THE R ENEWAL O PTION

Renewal options such a s t he one involved in th is case a re essent ially unilateral contract s giving the le ssee an ir revocable right exte nd a lease

during the option period. Americ an Oil Co. v. Rasar , 203 Tenn. 37, 45, 308 S. W.2d 486, 490 (1957). Lessee s must give timely noti ce accor

ding to the

terms of the option, and lessees who fail to give the r equired not

ice lose th eir right

to renew th e lease. Americ an Oil Co. v. Rasar , 203 Tenn. at 45, 308 S .W.2d a t 490; Corim, Inc. v. Sam Blair Co., 721 S.W. 2d 256, 260- 61 (Tenn. Ct. App. 1986); Southern Region Indus. R ealty, I

nc. v. Chattanooga W

arehouse & C

old Storag e Co., 612 S.W. 2d 162, 164 -65 (Tenn. Ct. Ap p. 1980).

Mr. Abou-Sa

kher’s thr ee lette rs do not satisfy the

requirem ent in the fixedbase operator ’s lease that heprovide the county with written notice of h is exerci se of his right to r

enew the lease fo r an additi on al five year s. While these letters make vague and general reference to Mr. Abou-Sa kher’s int erest in r enewing the lease, they focus prim arily on his desire tobecome a full-time county employee in order to obtain health insurance. In order for a notice to be eff ective in t

his context, it must sta

te clearly that the lessee is exercising his or her renewal option. Expressi ons of a lesse e’s “inte rest” in r enewinga lease amount to little more than
an indication that the le ssee is stil l c ons idering w hether or not to exer

cise the renewal option. A ccordingly , the trial court correctly held that Mr. Abou-Sakher-6-

did not effe ctively exercise h is option to renew the 1987 fixed-base operator’s lease.

C.

W AIVER OF R ENEWAL R EQUIREMENTS

Waiver on the part

of the les sor is one

of the special circumstances that will
excusea lessee ’s failur

e to comply strictly w it h the terms of a rene wal option. Americ an Oil Co. v. Rasar, 203 Tenn. at 48, 308 S.W.2 d at 191; Playmat e Club, Inc. v. Country C lubs, Inc., 62 Tenn. App. 38 3, 390-91 , 4 62 S.W. 2d 890, 894 (1970). In t his cont ext,

[w]aiver is a voluntary r

elinquishme nt or renun ciation of some right , a fore going or giving up of some b enefit or advantage , which, but for such waiv er, he

could have enjoyed. It may be proved by express declara

tion; or by acts and decla

rations ma

nifesting an intent

and purpose not to claim t

he supposed a

dvantage; o r by a cour se of acts and conduct , or by so ne glecting and failin g to act, as to induce a be lief that it was his intention a

nd purpose to waive. Griswold v. Income Properties, II, 880 S.W.2d 67 2, 680 (Tenn . Ct. Ap p. 1993) (quoting Baird v. Fidelity -Phenix Fire Ins. Co., 178 Tenn. 653, 665, 1 62 S.W. 2d 384, 389 (1942)).

We find no evidence in this record that either the county or the airport authorityexpressly waived its right to insist that Mr. Abou-Sakher exercise hi s renewal option in ac cordance with the t

e rms of the fixed-base operator’s lease. Similarl y, Mr. Abo u- Sakhe r has not poi nted to any a cts or dec larations by the representatives of the county or the airport au thority th at could be reasonably construed as manife st ing an intention and purpose to ignore the renewal provisions of the lea se. To t he cont rary, the minutes of the airport authority’s May 18, 1993 min

utes refl ect that a

ll the parties knew and underst ood that “[ t]he Fixed Base Operator contract has been out since March 1992.” Mr. Abou-Sakher is in no position t

o asse rt that he was una

ware of this fact because h e was the secretary who took these minutes. Accordingly, the evidence support s the trial-7-

court’s de termina

tion that al l parties understood t hat Mr. A

bou-Sakhe

r was a holdover tenant

after the 1987 fix ed-base o perator’ s lease e xpired in Ma rch 1992.

III. M R . A BOU -S AKHER ’ S E MPLOYMENT S TATUS

Mr. Abou-Sa

kher also i nsists that he is entitled to be reinstated as part-time airport man ager on two grounds. First, he asserts that he has a contrac t to serve
as airpor t manage r as long as his fixed- base opera tor’s lea se remai ns in effe ct. Second, he asserts t

hat he is en

titled to co ntinue as part- time air port manag er until the county properly hires a full-time manager. We have already determined that Mr. Abou-Sakher’s fixed-base operator’s lease has ex p ired. We hold now that Mr. Abou-Sakher

did not have a right to continue as part-time airport ma nager until the county selected and retained a full-time airport manager.

A.

Mr. Abou-Sakher obtained his title as “airport manager” from the fi x edbase operator ’s lease agreeme nt. Acc ording to the lease, Mr. Abo u- Sakhe r was to serve as the airpor

t manager during the

term of the lease without re ceiving any compensat

ion other than

the inc ome he derived f

rom being t

he airpor t’s fixed- base operator y. The circumstances surrounding Mr. Abou-Sakher’s later employment
as a part-time county employee and the ter ms and condi tions of

his employm

ent do not ap pear in thi s record.

The airport auth ority inter viewed Mr . Abou-S akher and the other candidate s for the full- time ai rport man ager’s job on August 4, 1994. The reafter , the authoritypublished not

ice that i t would me et in the offic e of oneits membe rs on August 18, 1994 at 4:00 p.m. to select the new airport manager . Contra

ry to the notice, the airpor

t authority

met at 4:30

p.m. in t he courthou se annex. At this meeting, the airpor

t authority

s elect ed Mr. Jenkins as the new full-time airport manager and determined that it would no longer need a part-time airport manager. Thereafter, on Septem

ber 1, 1994 , the cha

irman of t he airport a

uthority informed Mr

. Abou-Sakher that his services as part-time airport manager were no longer-8-

required and that he

wo uld be required to renegotiate the fixed-base operator’s lease.

B.

Decisions by governmental bodies made in me etings that vio late the SunshineLaw are inval id. Tenn. Code Ann. § 8-44-105 ( 1993). A ccordingly , the airportauthority’s decision to hire Mr. Jenkins wa s invalid be causethe author ity did not give adequate public notice of the correct time and place of its meeting as required by Tenn. Code Ann. § 8-44-103(a) (1993). S etting aside the decision to hire Mr. Jenkins, ho wever, provides no s olace to Mr. Abou- Sakher unl ess he can demonstra

te some entit

lement to his part-t

ime job or so me conditio n of employment

that he cou ld remain

in his job unt

il his succes sor was pr

operly appointed. Mr. Abou-Sakher has provided no such proof.

In the absenc e of proof

concerni ng the term s and conditi ons of Mr. AbouSakher’s employment as part-time airport manager, we must presume that he was
an at-will employee of the county. A t-will e mployees m ay be discharge d without breach of contra

ct at any t

ime for go od cause, bad cause , or no caus e at all. Forrester v. Stockstill , 869 S.W.2 d 328, 330 (T enn. 1994) ; Bennett v . Steiner -Liff Iron and Metal C

o. , 826 S.W. 2d 11 9, 121 (Tenn. 1992). Thus, without an employment

contract, a dischargedemployee cannot recover damages for breach of contract from his or her

employerbecause t

he employe e has no cont

ract rig ht to conti nued empl oyment. Forreste r v. Stock still , 869 S.W.2d at 3 30.

As an at-will

employee, Mr. Abo u-Sakher did not have

a legally recognized expectat ion of continue d employme nt with the county. Mr. Ab ou-Sakher has not asserted that the chairman of the airport authority violated the S unshin e La w or applicable

statutes , ordinance s, or rules i nvolvi ng count y employm ent wh en he discharged Mr. Abou-Sakher as airport manager. The record provides no support for this con tent ion had it be en made. Accordi ngly, the t rial cour t correc tly determined that Mr. Abou-Sa kher fail ed to prove that hehad alegally recognizable right to continued employment as the airport’s part-time manager.-9- IV.

We affirm

the judgmen

tand rema

nd the case

to the tria l court for whatever further proceedi ngs may be r

equired. We tax th e cos ts of t his appeal to Rock Abou-Sakher and his surety for which execution, if necessary, may issue.

_________________

___________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_______________ SAMUEL L. LEWIS, JUDGE

_________________

_______________ BEN H. CANTRELL, JUDGE