### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 28, 2001 Sessio

n PATRICK B. REINSHAGEN, v. P HP COMPANIES, INC., d/b/a C ARITEN HEALTH PLANS, CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY, d/b/a BARONESS ERLA NGER HOSPITAL, and JANET SHOOK
Direct Appeal from the Chancery Court for Hamilton County, Part I No. 98-0405 Hon. W. Frank Brown, III, Chancellor

FILED NOVEMBER 14, 2001

No. E2001-00025-COA-R3-CV

In this action for

breach of employment contract and defamation, the Trial Court g ranted summary judgment to defe

ndants. Plaintiff a

ppealed. We affi

rm. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed.

H ERSCHEL P ICKENS F RANKS , J., delivered the op inion of the court,

in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.

John P . Konvalink a and J. Scott McDearma n, Chattanooga, Tennesse e, for Appellant, Patri ck B. Reinshagen. Dan D. Rhea, Knoxville, Tennessee, for Appellees, PHP Companies, Inc., and Janet Shook.

Carlos C. Smith, J. Robin Rogers, and M ark W. Smi th, Chatt anooga , Tennes see, for Appellee, Cha tta noo ga-H ami lto n Co unt y Hos pit al A uth ori ty.

OPINION

In this action for breach

of employment contract an d libel and slander, t he Trial Ju dge granted defendant summary judgment. Plaintiff has appea led.

Plaintiff sued PHP Companies, I nc. d/b /a Cariten Health Plans (“Cariten”), Chattanooga-Hamilton

County Hospital Authority d/b/a Baroness Erlanger Hospital (“Erlang er”),-2-

and Janet Shook, and alleged tha t he was employ

ed by Carite

n in December of

1996 as a salesperson, and that Car iten wa s affiliated with Erlanger “in either a partnership or joint venture”. He allege d he was provided anemployment contract, which was breached, and that his co-workers undermined his efforts, i.e., Ms. Shook falsely accused him of unprofessional behavior, and published these fa

lse accusations to Cariten executives, all of which resulted in his termination.

Defendants

essentially denied all of plaintiff’s allegations (except that he had been terminated). Erlanger admit ted that it owned sto

ck in PHP, but otherwise denied or stated that it had
no kno wledge reg arding plaintiff’s allegations. The letter which plaintiff alleged created a n employment

contract was made a part of the record by Agreed Order. The letter is written on the letterhead of LifeForce Health Plans, I nc., and states that its purpose is to spell out the “basics” of plaintiff’s relationship with Cariten Health Plans. The letter is dated December 16, 1996, and states plaintiff will be an employ

ee of Cariten, in

the division known as LifeForce. The letter further states that plaintiff would be responsible for selling “CompForce” products, and that plaintiff would report to the lead marketing person when one was in place. The letter states pla

intiff’s salary

for the first year would be $42,000.00, and for the second year it would be $40,000.00, which would be reviewed annually thereafter. The letter

further states th

at plaintiff would

be paid incentive compensation for eachnew customer, as

well as for the sale of “non workers’ compensation clinical services”, and that such incentive compensation would be paid quarterly. Cariten would ret ain the right to

change the “a rrangements”

at any time. The letter was signed by John Barnes, Chief Operating Officer of LifeForce, the Chattanooga Division of Cariten Health Plans. The letter also

bears the signature of the plaintiff.

In the exhibits to defen dants’ Mot ions for Summary Judgment, one exhibit

was a statement signed by plaintiff, dated December 16, 19 96, acknowl edging receipt of the PHP employee handbook, whi ch re cit es p lai nti ff u nde rst and s th at h is e mpl oym ent is termin able at will and that there is no employment contract. The Acknowledgment also states that no contract other

than “at-will” has been expressed or implied, and nothing will alter the at-will relationship.

Also filed was the Affidavit of Janet Shook, which states that she was Di rector of Commercial Business Development, and was plaintiff’s supervisor. She stated that plaintiff’s job
was to sell workers’ co mpe nsation claims management services, and that she wrote a “series of memoranda” to plaintiff criticizing various aspects of his job performance from September 30, 1997 to October 29, 1997,

and that she gav

e copies o f these to her supervisor, Lance Marshall, and the personnel manager. She further stated that she received a com plaint in January of 1998 from Federated Insurance C

omp any regarding th

e plaintiff, and th

at she and Mr. Mar

shall jointly recommended

to PHP-Cariten’s ho

me office that the

plain tiff be t erminated. Lance Marshall’s Affidavit states that he was

the President of th

e Chatt anoo ga Division of PHP-Cariten, and that plaintiff was terminated in January 1998 on his recommendation because of performance and work behavior issues. He also stated that PHP never received any revenue from the

saleof “non workers’ compensation clinical services.” Erlanger, in its Motion, attached depositions of its officials, which explained the relationship between Erlanger and Cariten.-3- Plaintiff filed a Response to these Motions, including documents and exce rpts from depositions.

The Trial Court, responding to the motions, issued a Memorandum Opinion finding that plaintiff was an e

mployee of PH

P, which had been a

sserted by a

ffiants Shook an d Marshall. Further, the Court held that plaintiff had filed no affidavit in response, and since his complaint stated he was an employee of

Cariten, h e was estopp ed from taki ng an incons istent pos ition at t hat stage of the litigation. The Court then held that plaintiff was an employee, terminable at will, and granted defendants summary judgment.

Regarding the claim of unpaid commission, t he Court denied sum mary judgm

ent, finding that the defendants had failed to prove that no genuine issue of fact existed. The Court also sustained Shook’s Motion for Summary Judgment, finding that Shook’s statements were true, and further there was no publication because the statements were only communicated to Shook’s superiors with the company. In so finding, the Court recog nized t hat pla

intiff had raised other instances of alleged

defamation, but found that they had not been plead in the complaint, and further that the statements were also true.

Sub seq uen tly, plaintiff filed a Motion t o Alter or Amend, o r for Interl ocutory App

eal, and attached an Aff

idavit which state

s t hat Bar nes told him he was an Erlanger employee even though the documents said Cariten, and further that the documents plaintiff signed were supposed to be fo r in sur ance pur pos es o nly. He also attached an affidavit of Michael Mahn, which states that he had been the vice president of Erlanger during the time plaintiff was hired by Er

langer to sell Erlanger products through an Erlanger-controlled com pa ny called LifeForce. Ma hn stated that Erlanger had a 90% equity

interest in Cariten, and that plaintiff was always professional and courteous in his job.

Erlanger filed a Motion to

Strike the affida

vits, and attache

d excerpts from plaintiff’s deposition which contradicted plaintiff’s aff

idavit, i.e., plain

tiff had testified

in his deposition that he was an employee of Cariten, and was never employ ed by Erlanger.

The Trial Court then entered a Memorandum Opinion and Order reaffirming

its prior decision, and making the grant of the partial summar

y judgment a

final order, pur

suant toTenn. R. Civ. P. Rule 54.02. The Court, in deny ing the Motion to Str

ike the affidavi

ts, determined that they
we re not part of the Court’s record. Plaintiff thereafter filed the affidavits, and filed a Notice of Appeal. Approximately one month after plaintiff filed his Notice of Appeal, the Court entered a Memorandum

Opinion (but not an Order) discussing the then recent Supreme Court opinion of Harrisv. Chern , 33 S.W.3d 741 (Tenn. 2000), and stating that the opinion would not change the result reached by the court.

At the o utset, we are required to determine whethe

r the affidavits a

ttached to plaintiff’s Motion to Alter or Reconsider were properly before the Trial Court. L ocal Rule 7.01 of the Hamilton County Chancery Court states that documents which are “lodged, such as briefs, are-4-

stamped “Received” and

are placed in the court file but do not become part of the record.” The brief to which these affidavits were attached is stamped “lodged.”

We believe the Su preme Court’s opinion in Harriscontrols whether the evidence contained in the a

ffidavits should ha

ve been consider

ed by the Tr

ial Court.

In Harris , the Supreme

Court was asked to determine the standard to be applied when ruling on a Tenn. R. Civ. P. Rule 54.02 motion to amend a grant of partial summary judgment, based upon evidence other than that which the court had before it when the summary judgment was granted. The HarrisCourt adopted a te st which asked the

court to consider

the following fa

ctors: 1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant’s case; 3) the explanation offered by the movant for its failure to offer the newl y submitted evidence i n its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor.
Thus, the Court ruled the

evidence did not h

ave to be “newly discovered” as had been required in the past. Id . The Court also stated that the standard of review of a trial court’s ruling on these issues was an abuse of discretion standard.

Under this sta ndard, we believ

e the Trial Court w

as correct in re

fusing to alter it

s grant of partial summary judgment. Plaintiff had responded to the summary judgment motions filed by the defendants by

attaching some deposition excerpts and other documents as evidence in support of his response, but did not file any affidavits with his response. A lso, he has not p

rovided any explanation of the efforts he made in order to

obtain the evidence needed to respond to the summary judgment motion, nor does he

explain why he

didnot offer the new

ly submitted informat

ion in his initial response. Obviou

sly, the plai

ntiff could

have filed his own affi

davit at any

time, and he did notshow that Mahn was

unavailable to g

ive his affid

avit previously.

These affidavit

s raise facts which could have and should have been provided earlier, and attempt to create new factua l issues in order to avoid summ

ary judgme

nt. We hold th at the Trial Court did not abuse i ts discretion in failing to alter its previous partial summary judgment based upon the late-tender ed affidavits.

The parties moving for

a summary judgment have the burden of establishing there is no genuine issue of material fact, and that they are e ntitled to a judgment as a matter of law. Byrd
v. Hall, 847 S.W.2d 208, 211(Tenn. 1993). This may be accomplished by either ne gating a critical element of the other party’s case, or by establishi ng a n affirmat ive defense. Id. The burden then shifts to the non-moving party to show there is a genuine issue of material fa ct for trial, by af

fidavit or otherwise. Id . Tenn. R. Civ. P. Rule 56.1 The letter which plaintiff relies upon to create an employment contract speaks for itself, and there is no dispute that this letter was signed by the plaintiff, or that there is no dispute of fact as to the contents of the letter itself.
-5-

Ou r review o f the evidence su bmitted on the Summar

y Judgment Mot

ions reveals there is arguably

some dispute

as to who employed plaintiff, whether it be Erla nger, Cariten,

or some combination of the two. The issu e thus becomes whe

ther this disputed fa ct, is mater ial. In determining whether disputed fact s are materi al, the Supreme Court has mandated that “the court must examine the elements of the claim or defense at issue in the motion to determine whether the resolution of that fact will effect the disposition of any of thos e claims or defe nses.” Byrd at 215 (Tenn. 1993). Plaintiff claimed that his termination constituted a breach of the employment contract he had with defendants. The d efendant s claim that there was no employment contract. Thus, the issue of which defendant

was actually plaintiff’s employer is not mater ial to the ultimate issue, i.e. whether the plaintiff hadan employment contract which was breached, or whethe r his employment was terminable at will. This issue, is not an issue of fact, but rather a question of law. 1

In this jurisdiction, there is a presumption that an employ ment relationship i

s at will, unless proven otherwise. Rose v. Tipton County , 953 S.W.2d 690 (Tenn. Ct. App. 1997). In order to show there is an e

mployment co

ntract, the employe

r must use specific

language which guarantees employment

for a definite

term. Loeffler v. Kjellgren , 884 S.W.2d 463 (Tenn . Ct. App. 1994). Thi s Courthas previously said that “an enforceable contract must result from a meeting of the minds of the parties and must be sufficiently definite to be enforced.” Id . at 468.

In Loeffler, we found that a letter similar to the one relied upon by plaintiff, did not create an emplo

yment contr

act. In that c

ase, the letter st

ated:

This letter will confirm

my interest i

n employing

your servic

es to establish and run a plastic company (splash guards). As you requested, I have outlined y our expectations for compensation: 1) First year salary

$45,000.00 2) Second year salary

$50,000.00 3) Participation in group insurance plan provided by Fleetline. 4) Reimbursement for relocation to Tennessee. 5) After working for four (4) year s, you will be provided a $25,000.00 per year for four (4) y

ears for consulting fees. Thanking you, in advance, and hoping to hear fr om you in the very near future , I remain,

You rs v ery t rul y, Fred M. Kjellgren President

This Courtstated that the “letter simply set forth what plaintiff could expect to earn2 Wilderwas employe d by Huffac

re & Associates , an independent i n sura nce agency, who served as an inte

rmediary b

etween PHP-Carit

en and its potentia

l clients.

-6- by way of compensation if he continued to work for Fleetline; there is no guarantee of employment for a definite term.” Id

.

Sim ila rly, in this case, the letter which plaintiff relies upon simply sets forth his salary for the first ye

ar, and that it wou

ld be reduced in the second year, and outlines other benef its. The letter does not contain specific and definite language such as to create an enf orcea ble con tract for
a definite term. Moreover, the acknowledgment signed by the plaintiff contemporaneously with the letter he relies upon clearly states that plaintiff’s employ ment was at will. Since plaintiff’s employment

was at will, he cou

ld be terminated a

t any time by

any party for any cause or no cause, and we affirm the Trial Judge’s holding on this issue.

Plaintiff also takes issue wi

th the Trial Court’ s grant of su mmary judg

ment on his defamation claims, arguing that there was publication, and that the statements were not true.

The only facts pertaining to this issue which the court ha d before it when m

aking its determination on summary ju dgment were those contained in the Affidavit of Ms. Shook, the memos from Ms. Shookregarding plaintiff’s performance and other job issues, and the transcript of the telephone call Ms. Shook and Mr. Mar shall made to Bill Wilder. 2 This evidence establishes that the only state

ments Ms. Sho ok made to anyone outside PHP were those made to Bill Wilder in a telephone call regarding the videotape interview. The dissemination of job performance r

eviews to supervisors is not publication for purposes of defamation. See Woods v. Helmi , 75 8 S.W .2d 219 (Tenn. Ct. App. 1988).

In that phone call,

Ms. Shook told Mr. Wilder that if plaintiff made the anonymous phone call t o Wilder, he was ac ting totally

inappropriately

, and when Wilder su

ggested that th

e y confront plaintiff about it,

Ms. Shook replied th

at she did not thinkplaintiff would admit it. There is no dispute rega

rding these fac

ts. Further, a c

ommunication is cap

able of conveying a defamatory meaning is a quest

ion of law. However

, a review of the

Trial Court’s dete

rmination of this is de
novo
. Pate v. Service Merchandise Co., Inc. , 959 S.W.2d 569 (Tenn. Ct. App.1996).

Ms. Shook’s statement that plaintiff acted inappropriately if he made the complainin g phone call to Wilder was n ot defamatory

, because it

was true. The record establishes that plaintiff signed a confidentiality agreement with PHP when he was hired, and in that ag reement, wh ich is quitebroadly written, plaintiff agreed to hold any information regarding PHP in confidence. T

hus, plaintiff’s act of calling Wilder and discussing information pertaining to PHP operations in any way would vio l ate his agreement, and could be viewed as inappropriate behavior. The Trial Court’s ruling that this sta

tement was true is

correct.

Ms. Shook’s statement regarding whether plaintiff would tell the truth if confronted-7-

is also not defamatory because it is clearly a statement of Ms. Shook’s opinion, and notexpressed
as a fact. This statement is similar to the one made in Revis , wherein this Court made clear that mere statements

of opinion, with nothing more, cannot constitute slander. As Revis notes, such opinion statements

do not “seriously

threaten” the pl

aintiff's repu

tatio n or “hol d him up to public hatred, contempt, or ridicule.” There are no oth er issues of alleg

ed defamatory

statements

in the record as it existed prior to the Trial Court’s making its decision on granting summary judgment. We hold that the plaintiff failed

to make a prima facie showing of defamation in this case, and defendants were entitled to summary judgment as a matter of law.

We affirm

the Judgment of the Trial Court and remand, with the cost of the appeal assessed to Patrick Reinshagen.

_________________________ H ERSCHEL P ICKENS F RANKS , J.