1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE March 7, 2001 Sessi on CLEMENT F. BERNAR D, M.D. v. SUMNER REGIONAL H EALTH SYST EMS, INC
. A Direct Appeal from the Circuit Court for Sumner County. No. 19362-C The Honorable Arthur McClellan, Judge.

No. M2000-01478-COA-R3-CV - Filed Mar ch 26, 2002

________________________ On or about M arch 26, 1999, the appelle e Sumner R

e gional H ealth Systems, I nc. revoked appellant Clement F . Berna

rd, M.D. p

rivileg es to pra

ctice me dicine a

t S u mner Regional Medical Center. Consequently, Dr. B ernard filed a co mplaint on March 29, 1999, alleging procure ment of breach of contract and defa mation. O n February

9, 2000, Sum

ner Regional Hea

lth Sy stems filed a Motion fo r Summary

Judgment o n the gr

ounds that

Dr. Ber nard cou ld not esta

blish viab le claims for procurement of breach of c ontract or def amatio n. The trial court granted Sumner Regional’s motion. On June 12, 2000, Dr. Bernard filed a No tice of Appeal and this litigation resulted. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D ON R. A SH , S P
. J., delivered the opinion of the court, in which F ARMER , J., and C RAWFORD , J joined.
Joe Bednarz, Jr. and Joe Bedn arz, Sr., N ashville, Tennessee, fo r the appella nt, Clemen t F. Bernard, M.D.
James C. Bradshaw, II

I and Jonathan D. Rose, N ash ville, Tennessee, for the appellee, Sumner Regional Health Sy stems, Inc.
OPINION
I. C lement

F. Bernard, M.D. (“Dr. B ernard”) was hired by St. Thomas Medical Gro up t o staff a cardiac catheterization u nitat Sumner Regional Medical Center in Gallatin, Tennessee

. The cathete

rization un

it was a jo int ventur

e betwe en Sumner

Regiona l and St. Th omas Hosp ital. Dr. Bernard was gr

anted privileges at Sumner Regional to practice in June of 1997.2

In May of 1998, Dr. B ernard met with the vice-president of Sumner Regional, Bill Mize. During this meeting, Dr. Bernard was infor med that there had been an unof ficial c omplaint lodged against him concerning inappropriate language

and humor.
On Februa

ry 5, 1999, D r. Ber

nard per formed a present ation concerning

the diagnostic equipment

available at Sumne r Regional. The presentation was in front of sever al physicians and various staff members of Sumner Regional. The par ties dispute the alleged events that occurred during the presenta tion.
Jan Hallmark (“Ms. Hallmark”), the Senior Vice President of Sumner R egional, alleged that d uring the presentation Dr. Berna rd used his laser pointer in a sexually e xplicit manner

. According to Ms. Hallmark’s deposition, Dr. Bernard pointed the laser a t her chest and made somerefer

ence regarding a cou

ntry music ente

rtainer . Ms. Hallmark c annot remember the spec ific re mark Dr. Bernard made to her in relation to the country music ente rtainer. According to the dep ositi ons of Ms. Hallmark, Brian Diller, Frank Stricklin, and Sandi Hester the comments and actions of Dr. Bernard we re “shocking”, “embarr as sing”, “s tupid”, “disconc erting ”, and “ mortify ing”. Ms . Hallmar

k supervi ses each of these individua

ls.
Conversel y, Freda

West submitted an aff

idavit st ating she never

saw Dr. B ernard

poin t his laser pointer at any one’s breasts, nor did she hear hi m make a ny derog atory statements that could have been constru ed as sexual har assment. Further

more, Cind

y H ill, a nurs e in cardiog raphics , testified that the country music en tertainer reference ma de by Dr. B ernard was made to il lustrate t he proble ms encoun

tered wi th distorti on in the ima

ges in ma mmogra phy with women wit

h large breasts

. Following the events on Februar y 5, 1999 , Ms. Hallmark rep orted the alleged inciden

t to William Sugg (“Mr. Sugg” ), Sumner Regional’s Chief Ex ecutiv e Offic er. Mr. Su gg pla ced Ms. Hall mark in cha rge of co llect ing in forma tion and in vesti gating t he inc ident . Duri ng t h e investigation process , Ms. Hallmark asked those pr esent at the even t to place what they

saw in writi ng. Additionally, two other participants provide d Ms. Hallmark wi th written complain ts. Several other participants can corroborate to some extent the events surrounding the presentation. At the con clusion of

Ms. Hallma

rk’s i nvest iga tion, Mr. Sugg determined the actions of Dr. Bernard viol ated S umner Regi onal’s sexu al hara ssmen t pol icy. Mr. S ugg presented this matt er to the Ex ecutive Com mittee of S umner Regiona l’s Bo ard of D ir ectors (“The Board” ). The B oard det ermined that Dr. B ernard ’s privile ges wit h Sumner R egional would be re v oked. Following the meeting, Mr. Sugg informed St. Thomas Medical Group by letter that Dr. Bernard was “no long er welcomed at Sumner Regional or as St. Thomas Medica l Gr o up’s local ca

rdiolog ist.” Fur

thermore , in a lette

r dated M arch 1, 1 999, Mr. Su gg as ked St. Thomas to “facilitate the voluntary relinquishment of Dr. Berna rd’s medical staff privileges at Sumner Regional. Mr. Sugg did not recommend further ac tion other than removing Dr. Bernar d privileges from Sumner Regional.
On March 5, 1999, Dr . Berna rd met with

repres entative s of St. Tho mas Hospit al and wit h St. Thomas Medical Group’s attorney , Nancy Jon es. Dur ing the meeting, Dr. Berna rd was informedby Nancy

Jones that he had been accused of s exual haras sment. Furthermore, Nancy Jon es prepared a letter of resignation to be signed by Dr. Bernard. Dr. Be

rnard signed the letter3

of resignation and was placed on administrative leave with pay and bene

fits unt il both parties could reach a mutually

agree abl e termination agreement. Subsequently , Dr. Bernard was give n time to rev iew th e Mutual Termination Agreement. On Marc h 26, 1999, Dr. Bernard was notified by St. Th omas that if he did not s ign the M utual Ter mination A greem

ent they would issue a notice of termination.
Dr. Bernard refused to sign the Agreement. On March 29, 1999, Dr. B ernard filed a complaint citing procurement of breach o f contract and defamation. Almost a y ear later, the trial court granted S umner Regional’s Motion for Summary Judgment. This appeal followed. The issues before the Court are whether the trial c ourt erred in granting summary judgment in favor of Sumner Regional regarding procurement

of brea ch of contract and defamation and whethe r the trial court abused its discretion in deny ing Dr. Bernard furthe

r discovery.
II.
The trial court ’s deci sion regardi ng a summaryjudgment motion is reviewed de novo with no presum

p tion of correctness pertaining to the trial court’s de termination. Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
If the court finds there are no genuine issues of materia l fact and the movin g party is enti tled to judgmentas a matter of law, the appeals court must affirm the tr ial court’s grant of summary judgment. See Byrd v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993). Furthermore, an o rd er granting summary

judgment must be denied when there is a legitimate dispute a s to any material fact or any

doubt as to the conclusions to be drawn from the undisputed facts. Id. According to Tenn.R. Civ.P. 56.04 , a court must d ecide “ if

the plea dings, d eposition s, answers to inter rogatories, and admissions on file, together with af fidavits, if any, show that there is no genuine issue as to any material fact and that the moving part y is entitled to a judgment as a matter of law” when determining whether a grant

of sum mary

judgmen

t is appropriate.
When evaluating a summary judgment motion, the Court in By rd , 847 S.W .2d at 214, established three e ssentia l element s . The elements for the court to consider are: “ (1) whether a factual disp ute e xists; (2) wh ether th at fact i s materia l; and (3) whether

that fact create s a genuine issue for trial.” Id.
In a summary

judgmen t motion, the

moving pa

rty has the bu

rden of p ersuading th e cour t that no genuine issues of

materia l fact exis t. Id. at 215. Th e express ion “ge

nuine issu e” ref

ers to genuinefactual issues not issues inv olvi ng legal conclusions to be taken from the facts. Id. at 211. Once the

moving pa

rty satisfie s their bu

rden, the burden sh

ifts to the non-moving party

to articula te specific facts to show t here is a gen

uine issue of mater ial fact requiring a submi ssion to the jury. Id. at 215 (finding that a disputed fact must be material befor e it can preclude summary judgment on an issue). However, “the non-moving par tymay not rely on alleg ations or

denials of his pleadings in carry

ing out his burden.” Id. In addition, t he mere scintilla of evide nce in support of the non-moving party ’s position is inadequ ate to establish an issue of fact. Id. at 212. To determine whether summary judgment is appropriat e, the court must view the evidence in the4

light most favorabl e to th e non-moving party and draw all reasonable inferenc es in the nonmoving party’ s favor. Id. at 210-11.
III.
To determine whether summary judgment in f

avor of Su mner Reg

ional is ap

propria te in thi s case, we m ust first determine the law in Tennessee reg arding procurement of brea ch of contract. In order to state a c laim for procurement of breac h o f contra ct, it is we

ll settled in Tenness ee that th

e plaintif f has the burden o f proving

the following ele

ments: 1.) The existe

nce of a legal c ontract ; 2.) The alle ged wr

ongdoe r had kno wledge

of the exist

ence of the contr act; 3.) The alle ged wr

ongdoe r intende d to induce

the brea ch of the contract; 4.) Th e a ll eg ed wr on gd oe r a ct ed ma li ci ou sl y; 5.) There w as an ac tual bre ach of c ontract ; 6.) The act complained of must be the proxim ate cau se of the alleged breach of contr

act; and 7.) Damag es resul

ted from t he alleg ed brea

ch of con tract. Myers v. Pickering Firm , Inc. , 959 S.W.2d 152, 158 (Tenn. App. 1997).
In the instant case, Dr. Bernard has the bur den of proving the elements enu nciated in Myers . Based

upon our review of the record, we c onclude the crux of this examination hinges on whether Sumner Regional intended to induce the breach of c ontract and whether they acted malicious ly

in doing so. In asking the c ourt to reverse the trial court’s gra nt of summary judgment in favor of Sumner Regional, Dr. Bernard asse rts that summary judgme nt is never proper in cases where malice and intent to induce the contract are at issue.
Dr. Berna rd compla

ins Sumner

Regiona l forwar ded fals e and mal

ic ious charg es of sexual harassment

and inapp

ropriate behavior to his employe

r, St. Thoma s. As set f

orth i n the aff idavit of Will iam S ugg , CEO of Sumner Regional, the information relay ed to St. Thomas was the fa ctual res ults surrounding the investigation and the complaints received a gainst Dr. Bernard. Furthermore, Mr. Sugg’s affidavit provides that the “infor mation relayed to St. Tho ma s was accura te and truth

ful.” Mor eover, M r. Sugg ’s affid avit p rovides t hat he did not ask St. T

homas to take any other action aga

inst Dr. B ernard

other tha n removin g him fr

om Sumner Regional.
In reviewing th e evidence in the light most favorable to Dr. Be rnard, we find no evidence to suppor t the alleged complaints that Sumner Regional intended to induce the br each of contrac t or acted with malice. Dr. Bernard ha s presented no evidence that this court can rea sonably infer mal ice or induce

ment of the

breach of contr

act. Dr. Berna

rd’s conclusory

statemen

ts5

unsupported by any

evidence cannot persuade this court to reverse the lower court’sdecision

to grant summary judgme

nt on the issue of procurement of brea c h of contr

act. As th

e Court in Byrd found, a disputed fact must be “mate rial” befo re it can preclude summary judgment on an i ssue. Byrd , 847 S.W.2d at 215 (emphasis added). As a result, we conclude that there w as no genuineissue of material fact as to whether Sumner Regional intended to induce the breach of contract or whether they

acted maliciously.
IV.
Dr. Be r nard’s s econd a ction in a ccorda nce with h

is appea l charg es Sumner

Regiona l with defamation. In Te nnes see, to establish a successful claim for defamation, three elements must be satisfied by the plaintiff: “(1) a party published a statement; (2) with knowledge that the statement is false and defaming to the other; or (3) with reck less d isregard for the truth of the st atement or with negligence in failing to ascertain the truth of the statement.” Sullivan v . Baptist M emorial Hospital , 995 S.W.2d 5 69, 571 (Tenn. 1999 ); See Restatement (Second) o f Torts § 580 B (1977). Truth is an absolute defe nse co ncerning a defamation claim. Memphis Publishing

Co
. v. Nichols , 569 S.W.2d 412, 420 (Tenn. 1978). Publication is the communic ation of statements to a third party r egarding a defa

matory matter. Sullivan , 995 S.W.2d at 572.

Re ce nt ly, in Tate v. Bap tist M emorial Hospital , 2000 Tenn. App. LEXI S 505 (Ct. App. 2000), this Court a

naly zed the af

fects of statemen ts made to business a ssociate s i n the scope of their em pl oym en t a s t he y relate to inv estigatory matters. In Tate , the plaintiff, a s upply technician at Baptist Memorial Hospital, filed suit requesting damages f or alleged defamation. Id. In the events le ading to the initial suit, several pay roll checks were reported missing and the matter was investigated by

the hospital. Id. During the inv esti gation, hospital se curity interviewed

several people regar

ding this matter

a s well as Ms. Tate. Id. Following the inves tigati on, Ms. Tate was accused of cashing checks that did not belong to her. Id. When approach ed r egarding this matter, Ms. Tate maintained he r innocence, however she was subsequently terminated f or attempting to cash another employ ees payc heck. Id.
This Court in Tate , int erpret ing Wood s v. H elmi , 758 S.W.2d 219 (Tenn. Ct. App. 1988), found t hat statements made to those who “had manager ial, supervisory, or a

dministrative responsi bil ities a nd oversight” concerning e mployees wer

e “immediately intere sted in the information transmitted.” In Freeman v. Dayton Scale Co. , 19 S.W.2d 255 ( Tenn. 1929), the Cour t held t hat commu

nication “made w ithin the sc ope and c ourse of employ ment rela tive to duties performed” is not enough to meet the standard of publ ica tion as set forth in Sullivan

. See Sullivan, supra

. In the case at bar, Dr. Bern ard argues he was defamed by communications to St. Thomas Hospital, resulting in the removal of Dr. Berna rd’s staff privileges from S umner Reg ional. However, this Court is of the opi nion that Dr. Bernard has failed to establish that the communication s betwe en Sumner Regional and St. Thomas were defama tory. The communications between Sumner Regional and St. Thomas pertained solely to the inve stigation conducted

by Sumner Regional as it related t o the numer ous complaints lodged against Dr.6

Bernard. The infor

mation tra

nsmitted to

St. Thomas b y Sum

ner Regional wasthe fac tual resu lts of its i nvestigation. Dr. Bernard’s conc lusory alleg ations that Sumner Regional “communicat e d false and defamatory

statem e nts conce

rning th e plaintif f” to St. Thomas is not e nough to establish a successful claim for defamation. Furthe r, the Court in Byrd o pined, “conc lusory allegations are not suff

icie nt to defeat a motion for summary judgment.” 847 S.W.2d at 215. Other than his mere allegations, Dr. Berna rd has failed to present to this Court any fac t supporting a claim for defamation. Moreover, should the communications be deeme d defamatory , we believe Sumner Regional is entitle d to summar y ju dgment b ecause

its commu nications with St. Thomas qualify as a conditi onal p rivilege under the common inte

rest priv ilege. Conditiona

l privileg es extend t

o all statem ents made “ in good faith upon any subject-matter in which the party communicating has an inter

est, or in refer ence to w hich he ha s a duty

to a pers on having

a corre sponding

interest or duty; and the privileg e embrac es cas es where the duty is not a legal one, but where it is of moral or social char act er of imperfect obligation.” Southern Ice Co. v. Black , 136 Tenn. 391, 189 S.W. 861 (1916). However, if the plaintiff canshow t hat the defendant acted in bad faith or with actua l malice, the conditional privilege will not apply

. Id. The pl ainti ff has t he bur den of provi ng t he defendant acted with actual malice. Id. In or der to pr ove actu al malice , there m u st be evid ence show i ng that defendant contemplated serious doubts as to the truth of his statements and that the statements were made with reckless disreg ard for the truth. Id.
The record

before the Court d

oes not s how Sumner Re gional a cting w ith reck

less disregard for the tr

uth, nor do es it show t

hem acting with a

ctu al malice

as it relate s to their communications with St. Thom as. Like Dr. Ber nard’s claim for procurement of the bre ach of contract, he ca nno t present to this Court any facts to support a claim that Sumner Regional acted withactual malice. The communications by Sumner Regional to S t. Thomas w ere mad e in conne ctio n with Sumner Regional’s investigation. Sumner Regional’s sole motivation in asking St. Thomas t o remove Dr. Bernard from Sumner Reg ional was to address the numerous complain ts l odged against him by

members of Sumner Regional’s staff. Obviously , St. Thomas has an interest in the actions of Dr. Bernard because of their jo int ventur

e with Sumne

r Regio nal. Thus, the communications by Sumner Regional to St. Thomas regarding the removal of Dr. Bernard are privileg ed under the common interest privilege and ar e not actionable.
V.
Dr. Bernard’s third action in accorda nce with his appeal charges that the tria l court erred in faili n g to rule on his Motion to Compel and Motion to Quash before ruling on summary judgmen t. “The ad

missibility

of evide nce is a matter wh

ich restswithin the

so und discr

eti on of the trial cou

rt. This Cou

rt will not interfe

re with th e trial c ourt’ s exercis e of its discretion absent clear abuse.” Mahan v. Mahan , 2000 Tenn. App . LEX IS 7 52 (Ct . App. 2000) (citi ng Young v. Young , 971 S.W.2d 386, 392 (Tenn. Ct. App. 1997)). Furthermore, the trial court has discretion when deciding upon what discovery restrictions might become n ec essary in specific case. Duncan v. Duncan , 789 S.W.2d 557, 560 (Tenn. App. 1 990) ( citi ng Strickland v . Strickla nd , 618 S.W.2d 496, 501 (Tenn. Ct. App. 1981)).7

Here, the record indicates the trial court did not expressly rule on Dr. Berna

rd’s Mo tion to Compel and

Motion to Qu ash befo re gra nting sum

mary judgmen

t in favo r of Sumner Regiona l. Court’s have found no rule of law requiring courts to rule upon all outstanding motions befor e ruli ng on summary judgment. Boatmen’s Bank of Tennessee v. Dunlap , 1997 Tenn. App . LE XIS 939 (Ct. App. 1997). Dr. Ber nard’s motion to compel was filed four day s before the summar

y ju dgment m

otion. I n the inte rest of e xpedie ncy

this Co urt cann ot requir

e all outstanding motions to be heard before summary judgment. If we took the p os ition of Dr. Bernard, we would b e encou raging attorne ys t o file moti ons in the e

leventh hour to avo id hearing a motion for summary judgment. This might al so create more con

tinuance s and mer

itless motions. We are not ready to take that step. Under these circumstances, we can find no abuse of discr etion by the trial court in hearing

the summar

y ju dgment m

otion while

outs tan ding motions existed.
VI.
Ac co rd in gl y, for the r easons set out above, the order of the trial court g ranting summary judgment regarding Dr. B erna

rd’s cla ims for procurement of breach of c ontract and defamation in favor of Sumner Regional is affirmed. Costs of this appeal are assessed against Dr. Berna rd.

_________________________________ DON R. ASH, SPECIAL JUDGE