# FILED February

12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WE ST ER N S EC TION AT N AS HVILLE

________________________________________________ THOMAS A. DRIBER, Ph.D., Plaintiff -Appella nt, Dav id son Ch anc ery No . 93 -30 02- II Vs. C.A. No. 01A01-9607-CH-00310 PHYSICIANS HEALTH CARE, INC., PHC, IN C., d/b/a MI

LESTONE HEALTH SERVICES, Z -2 CORP ORATION, a nd Z CORPORATION, Defend ants-App ellees.

___________________________________________________________________________

FROM THE CHANCERY COURT OF DAVI DSON COUNTY THE HONORABLE EL

LEN HOBB S LYLE, CHA NCELL OR

J. P. Barf ield of Na shville For Appellant Robert E. Boston of Waller, L ansden, Dortch &

Davis in N ashville For Appellees

DISMISSED IN

PART, AFFIRMED

IN PART Opinion fi led:

W. FRANK CRAWF ORD,

PRESIDIN G JUDG

E, W.S.

CONCUR: DAVID R. FARMER, JUDGE HOLLY KIRB Y LILLARD , JUDGE2 Pl ain tiff, Thomas J. Driber, Ph.D., appeals from the order of the trial court g ranting summary judgment to the defendant. The cas e is befo re this Cou

rt for the third time

because of previousprocedu

ral def ects. Basica lly the case involves a suit for damages for the alleged breach of

an employment agreement and a counter

-claim by def

endant to recover on a promissory note. On June 2, 199 2, So uther n Medi cal Imagin g, Inc. (hereina fter SMI) entere d into an Asset Purchase Agreement with Columbia Diagnostic Associates (CDA) , a wholly owned subsidiary of Phys icians He alth Care , Inc . (PHC), w hereby SMI a greed to transf er most of

its assets to CDA. Plaintiff, Thomas J. Driber, President of SMI, signed the ag

reement on behalf of SMI, a nd Albert Ganier, III, Treasurer and Secretary of CDA, signed the agree ment on behalf of CDA. As part of the Asset Purch ase Agr eement, i t was agreed that Driber would be employed by

PHC pursuant to the terms and conditions of a writ ten employment and noncompe tition agreement which, in fact, was sig ned on June 2, 1992. U

nder the terms of t

he employ

ment ag reemen t, Driber agreed to serve as vicepresident of PHC, and he agreed to per form the services assigned to him by Ganier, PHC’s preside nt, i nclu ding services for PHC’s subsidiary and affiliated companie s. Also on June 2, 1992, Dribe r executed a promissory note in favor of PHC in the amount of $20,00 0.00, whic

h note was conditioned upon CDA meeting certain specifie d earnings goals. In September 1993, Driber’s employ ment was terminated, and on October 14, 1993, Driber filed a complaint in this case alleging brea ch of employment contra

ct agains t defend ants, Physicians Health Care , Inc .; PHC, I nc. d/b/a Milestone Health Services; Z-2 Corporation and Z Corporation. An amende d compl aint was f iled purs uant to court orde r restat ing the c laims agains tZ Corporation and Z-2 Corporation. PHC filed an answ er to the complaint and a counterclaim against Driber for the balance due on the pro missory

note Driber had executed in its favor. At som e point, PH C chang ed its name to Milestone Health

Service s, Inc., and M i leston e subseque ntly was allow ed to file

an amended

counter-claim against Driber alleg ing libelous and defamatory

statements, and Milestone was also per mitted to a

dd Dawn Neville by

cross-c laim alleging libelous and defamatory statements made by Ne

ville against Milestone.3 By order e ntered Se ptember 28, 1994, t

he trial c ourt gr

anted Mile sto ne’ s motion for summary judgment on its original counterclaim for enforc emen t of the promissory note. The trial court al so deter

mined tha t Milestone

was entit led to att orn ey s’ fees and costsincurre d in connection w ith its orig

inal coun terclaim to enfor

ce the pr omissory note and d

ir ected Milestone’ s attorney to file an affidavit regarding said amounts. The trial court incorpo r ated into the September

28 o rder the “magic languag e” of Rule 54.02 Tenn.R.Civ.P. making it a final judgment as to Driber’s liability on the promissory note. The Z defendants and

Milestone each moved for summary judgment as to all of Driber’s claims on De cember 13, 1994. By order entered Februar

y 1, 1995, the trial court g ranted the motions for summary judgment that had been filed by Milestone, Z Corpo ra tion and Z-2 Corporation and dismiss ed all of Driber’ s claims a

gainst said def endants. In the same order, the trial court awarded attorney s’ fees incurred in connection with the enforc ement of the promissory note. Driber filed a notice of appeal on F ebruary 17, 1995, appealing the February 1 order. The trial cou

rt’s Fe bruary 1 order d id not dispo se of Mile st one ’s counte rclaim a gainst Driber for libel and defamation or its claim against Dawn Neville, nor was it made final pursuant to Ten n.R .Civ.P. 54.02. Therefore, by Order entered April 4, 1995, this Court dismissed the appeal for Driber’s failure to appe al from a final judgment under Rule 3 T.R.A.P. After remand, Milestone

filed a mo tion for su

mmary judgmen t on its co untercl aim agains tDriber for libel and defamation and its claim ag ainst Dawn Nev ille. The trial court granted Milestone’s motion for summary judg ment on October 16, 1995, but reserved the issue of damages and attorney s’ fees to a la ter date. On November 3, 1995, Driber filed a notice of appeal from

the trial court’s October 16, 1995 order granting summary judgme

nt. Because the October 16 order had expressly r eserved the issue of damages a nd a ttorneys’ fe e s for later determination and because the order had not been made

final under Rule 54.02, Tenn.R.Civ.P., this Court ag ain was c ompelled to dismiss the appeal for failure to appeal from a final judg ment by order filed November 23, 1995. Thereafter, Milestone voluntar ily d ismissed itscounter

claim against Neville for libel and defamation. On January 12, 1996, Milestone filed a motion for

attorne ys’ fees and costs inc

urred in4

defending Driber’ s claims f or brea ch of the employ ment cont ract. B y “ Memo randum an d Order” filed January

22, 1996, t

he trial c ourt denie d Milestone ’s motion f or attorn ey s’ fees and costs relating to defense of the breach of employ ment contract claim. For reasons discussed below, that order would havedismissed a ll remain ing cla ims and would have been a final judgment had it been properly

entered. On March 18, 1996, Driber filed a “Motion For A Final Order” pursuant to Rule 54, Tenn.R.Civ.P., and Milestone filed a response and a proposed order. The trial court, on April 18, 1996, entered the order submitted byMilestone which was styled, “Final Judgment On All Claims For Relief In Th is Civil Act

ion Except T

he Promiss ory

Note Claim s For Which A Final Judgment Has Already Been Entered.” That order purporte d to “fina

lize” all remaining claims, except Milestone’s claim against Driber on the pro missory note which had been rendered finalpursuant to Rule 54.02 in September 1994. Driber has now appealed from the trial court’s order e

ntered A pril 18, 19 96 and pr

esents th ree issu es for r

eview: I. Whether th

e trial c ourt err

ed in granting Milestone’s motion for summary judgme

nt as to Driber’s claims. II. Whether the t rial court erred in granting the motion for summary ju dg me nt fi le d b y Z Corporation andZ-2 Corporation.

III. Whether the trial court’s April 18, 1996 order was in er ror in ruling that its order entered September 28, 1994 was a final judgment under Rule 54, Tenn.R.Civ.P. We will first consider Driber’s third issue. Driber asserts that the September 28, 1994 order was not a final order and therefore could not have be en appealed

earlier than May

17, 1996. Driber argue s that the o

rder wa s interloc

utory because it did not ad

judicate all the claims or the rights and liabilities of

all the parties and did not contain the required language of Rule 54.02, Tenn.R.Civ.P., to mak

e it f inal a nd appeal able . Wefind Drib er’s as sertion to be withou

t merit.

Rule 3, T.R.A.P., which pertains to the appeal of a final judgment to this Court, states in pertine nt part: In civil actions every

final judgment entered by a trial court from which an appe al lies to

the . . . Court of Appeals is appealable as of right. Except as otherwise permitted in . . . R ule 54.02 Tennessee Rules of Civil Procedure , if multiple pa rt ies or multiple claims for relief are involved in an action, any order that5 adjudicates few e r than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable a nd is subject to revision at

any time before entry

of a final judgment adjudicating all the cl aims, rig hts, and li abilities of all pa rties. (emphasis added). Rule 54.02 , Tenn.R. Civ.P., pro vides in pe rtinent pa rt: When more than one claim for relief is present in an action, whether as a cla im , coun terclaim, cross- claim, or third par

ty claim, or when multiple par ties are involved, the court, whether at law or equity, may

direct the entry

of a final judgment

as to one or mor e but fewe

r than al l of the c laims or pa rties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment

. (emphas is added). Specific compliance with the requirements of Rule 54.02 is mandatory in order to make

an interlocutory orde

r a final order

appeala ble as of right to this Court. Our Supre

me Court held in F ox v. Fox , 657 S.W.2d 747 (Tenn. 1983), that an absolute prerequisite to appeal was the certification by the trial court that it had directed the entry of a final judgment and that it had made the determination that there was no just reason for delay . In the absence of such direction and determi nation, an order is interlocutory and may be r

evised at any time be

fore entry of an order adjudicating all the claims and the rig hts and liabilities of all parties. Id. at 749. In the instant ca se, the Se

ptember 28, 1994 or

der expre ssly

stated in r

elevant part, The Courtfinds that

there is no just reason for delay and that the actio n as it rela

tes to said

counter claim shou

ld be ter min ate d between D ribe r and Milestone. Therefore, it is further order ed that the Clerk and Master enter fi nal judgment in Milestone’s favor, pursuant to Rule 54 of the Tennessee Ru les of Civi l Procedure, agains tDriber on the original counterclaim for breac h of his promissor y note . . . the court expressly dete rmining pursuant to Rule 54.02 of

the TennesseeRules of Civil Procedure that there is no just reason for delay and that said final judgment should be entered. (emphasis added). Contrary to Driber’s position, we find that the language contained in the tria l court’s September

28, 1994 order complies with the stringen t requirements of Rule 54.02, Tenn.R.Civ.P., as interpret ed by the Supreme Court in Fox v. Fox . The tria l court expressly determined not once but twice that there was no just reason for delay

and directed

the entry of

a final judgment. Driber maintains that the order is flawed b ecause the trial court ordered the Clerk and Master to enter the judgment, and the trial court clerk is without authority to direct6

entry of judgm ents. Thisargume

nt is wholly

without me

rit. Rule 5 8, Tenn.R .Civ.P., se ts forth the requiremen ts for e ntry of judg ment and provides that entry of judgment is effective upon certain actions having been taken by the clerk. Accordingly , we f i nd that the trial court’s September

28, 1994 or

der gr anting s ummary

judgmen t in favor of Milestone for recovery on the promissory

note is a final judgmen

t under Ru le 54.02, Tenn.R.Ci v.P. Dribe r did not a ppeal sa id judgment within 30 days as required by R ule 4(a) , T.R.A.P. T

herefo re, an a ttempt to a

ppeal sa id order by the notice

of appeal filed on May

17, 1996 is untimely . The app eal as to this issue i s dismissed with prejudice for failure to appeal timely from entry of

a final judgment. The Court now turns its attention to the q uestion of whether the trial court erred in granting summary judgme nt in favor of Milestone and the Z Corporations. We first note, however, a question as to the finality of the so- called final judgment. Milestonefiled a motion requesting attorneys’ f

ees pursuant to the employment contra ct on January 12, 1996, and the trial court denied the motion by

order noted in the record as filed and ente red on January 22, 1996. Rule 58, Te

nn.R.Civ.P. , provide s in pertinent part : Entry of a judgment or an order of final disposition is effective when a judgme

nt contai ning one

of th e followi ng is marked on th e f ac e b y th e c le rk as fi le d f or en tr y: (1) the signatures of the judge a nd all parties or counsel, or (2) the si gnatures of the judge and one party or c ounsel with a certificate of counsel that a copy of the proposed

order has been served on all other parties or counsel, or (3) the signature of the

judge and a ce

rtifica te of the clerk th at a copy has been served o n all othe

r partie s or couns el. The trial court’s January 22, 1996 orde r does not comply with Rule 58. The cha ncellor signed the order, but it has no signatures of counsel nor any

certificate of service. Without compliance withRule 58, there is no effective filing date. See Grantha m v. Tennesse e State Bd. of Equalization , 794 S.W.2d 75 1 (Tenn. App. 1990 ). Since t he order from whic

h the appe al is taken does not

dispose of the attorney s’ fees issue, the attorney s’ fee question i s technic ally still notresolved. Parenthetically , we note that it appears the resolution of the attorney

fees’ question in the January 12, 1996 order would have effectively

disposed of

all claim s and ther

efore w ould have been the final judgment from which ap peal should have been taken. Nonetheless, it appears to the Court t

hat Milest

one’s request for

attorne ys’ fees an d costs was not pa rt of the p leading s,7

butrather was a post-hearing motion filed almost one year a f ter entry of

the order granting defenda nts summary judgme

nt on the under lyi ng issue. Therefore, rather than dismiss the appeal for a third tim

e on this ba sis, the Co u rt finds it to be in the interests of judicial economy a nd efficiency to treat the question of attorneys’ fees as a non-issue, to permit the appeal to proceed, and to address the issues raised by Driber. Driber asserts tha t the trial court erred in granting de fendants’ motions for summary judgment because there existed genuine issues of material fact to preclude summary judgmen t. After examination of the record bef ore the Court, we find that the trial court properly granted summary judgme

nt as to the defendants. A trial court should grant a motion for sum maryjudgment only if the movant demonstrates that there are no genuine issues of mate rial fact and t

hat the mo ving pa

rty is entitled to judgment

as a matter of law. Tenn.R.Ci v.P. 56.03; Byrd v. Ha ll , 847 S.W.2d 208, 210 (Tenn. 1 993); Dunn v. Hack ett , 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving for summary judgme

nt bears the burden of

demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. On a motion for summary judgmen t, the court must consider the motion in the same manner as a motion for directed verdict made at the close of the pl ainti ff's proof; that is, " the cour

t must take

the stron gest

legitima te view of the evidence in favor of the nonmoving party, allow all reasona ble infe rencesin favor

of that pa

rty , and disc ard all countervail ing evidence." Id . at 210-211. In Byrd , the Tennessee Supreme Court stated:

Once it is shown by the moving par ty that there is no genuine issue of material fact, the nonmoving party mus t th en demonstrate, by affi d avits or d iscover y ma terials, that ther

e is a genuine, material fact disput e to warra nt a trial. In this rega rd, Rule 56.05 provides that

the nonmoving party

cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of

materia l fact fo r trial. Id

. at 211. (c itations om

i tted, e mphasis in original). Where a genuine dispute exists as to any material fact or as to the conclusions to be drawn from those facts, a court must deny

a motion for summary judgment. Byrd , 847 S .W.2 d at 21 1 (cit ing Dunn , 833 S.W.2d at 80). The employ

ment ag reemen t that is t he subject of the breach of contract claim was executed between Driber and PHC, later known as Milestone. The agreement provided that in8

exch ange for salary

and other consideration, Driber was to serve as vice- president of PHC and

was to perform whatever employ ment duties were assigned to him by Ganier. The employ

ment agree ment provided in re

levant pa rt: Prior to the end

of th e Employment Term, the Corpora tion may immediate

ly disc h arge E

mploy ee for c ause and

terminat e this Agreement

without any further liability hereunder to Employ ee or hi s estate. . . . For purposes of this Agree ment, a “disch arge fo r cause” shall mean a discharge resulting fr om a determination by the Presiden

t that Emp loyee . . . has wi llfully or gros sly negligently

neglected his duties, or

willfully failed to follow the Corporation’s policies and di rectives from persons to whom Employ ee repo rts. (emphasis added). G anier terminated Driber’s employ ment. Ganier’s affidavit filed in suppo rt of the motio n for summa

ry judgmen t stated in releva nt part: I determined that Driber had both willfully and in a gros sly neglig ent fa shion neglected h is duties a

nd willful ly f

ailed to follow company policies and dir ectives given to him by me or at my express direction. Ganier also stated in his affidavit that he had terminated Driber’s employ ment pursuant to the terms of the contract and in his capacity as president of

the company a

nd as one of the persons to whom Driber reported. Ganier stated that the decision was a “d ischa rge for cause” as contemplatedin the employment ag reement and was made in the be st in te re st s o f t he co mp an y. Examination of the record on appea l revea ls that Dr iber did n ot refute

the statements made by Ganier. In fact, the rec ord is devoid of any re sponse filed by Driber addressing the motions for summary judgmen t on this issue. In his brief, Driber a sserts that there exists a genuine issue of material fact as shown by

the testimony of Martin Johnson in his discovery deposition. Johnson

was the owner of Ultra I maging which purchased the asset s of Columbia Diagnostic from Milestone in August 1993. In his Februa ry 24, 1994 deposition, Johnson testified: Q. Mr. Johnson, did Al Ganier at any time during the possible negotiations of PHC Diagno stic Services, did he say to you, “Don’t

worry about Tom D

riber. I can ge t rid of him at any time.” A. He didn’t say

he could get rid of him at any time. He said that Tom didn’t have to be there, is what he told me. . . . When I we ntdown, when I paid him for -- took him a c heck for Colu mbia, he and I were

talking about the mobile service. And that’s when I

asked the question, “Well, what about Tom and the9 other employee s?” And he said, “Well, we don’t necessarily have to keep Tom.” Driber attempts to demonstrate a disputed issue of fact through an inferenc e, by casting doubton Ganier’s true motive in discharging him. Howe ver, accepting Johnson’s testimony as true, w e do not construe the testimony to imply that Driber would be discharged from hi s employ ment in bre ach of th

e contra ct. It appears to the Court that the deposi tion testimo ny u pon which

Driber r elies is insufficient

to crea te a dispu ted issue of mater ial fact in order to overc ome summar

y ju dgment. The mere existence of a

scintilla of evide nce in sup port of the [nonmovin g party ’s] position will be insufficient; there must be evidence on which the jury could reasonab ly find for t he [nonmoving party]. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-255, 106 S.Ct. 2505, 2511-2513 (1986). See also Byrd , 847 S.W.2d at 212. Driber seeks to demonstrate a disputed issue of fa ct by m ean s of an inference that there was a nother motive behind his discharge. Johnson’s testimony neither addre sses nor rebuts the primary

issue in this case, that is, whether Drib e r was discharged for cause . Moreover, it is rather significant that Driber doe s not deny Ganier’s affid avit s tatem ents. Regard less o f whet her ot her mo tives for th e disc harge existed, the unrebuttedandunrefuted evidence established that Milestone discharg ed Driber for cause under the terms of t

he emplo yme nt contract. In t he absen ce of an y c ounterva

iling evidence d

irectly addressing the “just cause” issue, we are compelled to find that the tria l court properly g

ranted summary judgment in favor of Milestone. Furthermore, we find that the t r ial cour

t proper ly granted summary judgme

nt in favor

of defenda nts Z Cor poration and Z- 2 Corpora

tion beca use the liability of the Z de

fendants was predicated on a finding of liability of Milestone. Therefore, the appeal from the September 28, 1994 order of the trial court is dismissed for failure to timely file a notice of appe al. T he order of the trial court gra nting summary judgment to defendants is affirmed, and the ca se is remanded for such fu rt he r p ro ce ed in gs as ma y be necessary

. Costs of the appeal are assessed aga inst the appella nt.10 _________________________________ W. FRANK CRAWF ORD, PRESIDIN G JUDG

E, W.S. CONCUR:

_________________________________ DAVID R. FARMER, JUDGE

_________________________________ HOLLY KIRB Y LILLARD , JUDGE