### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 1999 Sessi

on TIMOTHY E. ISBELL v. TRAVIS ELECTRIC COMPANY

AND MILTON T

RAVIS
Appeal from the Circuit Court for Davidson County No. 97C-475 Hamilton V. Gayden, Jr., Judge

No. M1999-00052-COA-R3-CV - Filed December 13, 2000

After Plaintiff resigned

from his job and attempted to start his own competing business, his former manager informed a mutual client of the circumstances surrounding his resignation. Plaintiff sued his former employer

and its s ervice manager, alleging slander, libel, defamation, and tortious interference with contract. The trial court directed a verdict for

Defendants, and

Plaintiff appeals , arguing that the trial court misapplied the substantial truth doctrine, failed to apply the doctrine of implication, and was incorrect in its finding that no contract existed between Plaintiff and his new company’smain client. Plaintiff also insists that, by

failing to gra

nt a new trial so tha

t he could add
an allegation of in

vasion of privacy

, the court ignor

ed the proper leg

al cons equences arising from the disclosure of a confidential drug test. For the following reasons, we affirm the decision of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which WILLIAM C. K OCH , J R ., and W ILLIAM B. C AIN , JJ., joined. Christopher

K. Thompson, Murfreesboro, Tennessee, Shell ey I. Stiles,Brentwood, Tennessee, for the appellant, Tim

othy E. Isbell.

Thomas C. Corts, Nashville, Tennessee, for

the appellees, T

ravis Electric Co

mpany and Milt

o n Travis.1 Hereinafter, Travis Electric Company will be referre

d to as “TEC” and Mi

lton Travis will be referred to as “Mr. Travis.”
2 OPINION TimothyE. Isbell

sued his former employer, Travis Electric Company , and its service manager, Milton Travis, alleging slander, libel, defamation, and tortious interference with contract. 1 A jury was empaneled to hear the case. At the c lose of Plaintiff’ s proof, the trial court directed a verdict for TEC and Mr. Travis. We first review the facts as established by Plaintiff’s proof

. I. Background

Mr. Isbell worked as an electrician at TEC for approxima

tely three years. Ove

r the course of his employment, much

of M r. Isbell’s w

ork involved instal

ling electrica

l cable at variou

s First AmericanBank

branches. During Mr. Isbell’s third ye ar of employment, TEC

initiated drug testing at the request of

its workers’ compensation carrier. Mr. Isbell underwent his first test on February 6, 1996, and tested po

sitive for marijua

na. Mr. Isbel

l testified that whe

n he came in to take

the test, “it was kind of a common known element, a joke, because everybody was laughing. Everybody was
aware th at I was not going to pass the test.” He admitted that he told a supervisor, in fron t of a secr eta ry, th at he w ould not pass the test that day. Mr. Isbell did fail that test. He was not disciplined for failing the test, b ut was told he c ould take a second test thirty days later, whic h he took and passed.

Mr. Isbell’s mar

ijuana use was kno

wn by his cow

orkers. He admitt

ed that, prior to th

e first drug test, he had often used marijuana, that he had smoked marijuana in the presence of

coworkers, andthat he regularly smoked just prior to having an app rentice drive hi

m to out-of-town jobs in company trucks. He also admitted to smoking marijuana in hotel rooms paid for by his employ er while on out-of-town jobs. Further, on one occa sion he helped a coworker purchase a sufficient amount of marijuana

to resell. I n addition, he assisted an employee of First American Bank in a purchase of marijuana.

In November 1996, two TEC employees purportedly told Mr. T ravis that Mr. Isbell was using marijuana again. One emp

loyee had a

sked not to be assig

ned to go on an out

-of-town job with

Mr. Isbell beca

use Mr. Isbell was usi

ng marijuana ag

ain and the employ

ee didn’t want to b

e around it. Another employee w

as assigned to

go on that out-of-town

job with Mr. Isbell. Upon his return, that employee told Mr. Travis that Mr. Isbell had smoked marijuana in the truck on the way to the job andin the motel while on the out-of -town assignmen

t. Shortly the

reafter, Mr. Tr

avis told Mr. Isbell that he would no longer have access to his company truck, telephone, a nd pager. When Mr.

Isbell pressed hi m about the reason for this action, Mr. Travis stated, “We’ve heard you’re using that marijuana again.” At that

point, Mr. Isbe

ll purporte

dly asked to t

a ke another drug test. Then he “stormedout ” and wen t ho me f or t he d ay. When he returned, Mr. Isbell was reassigned to work at the company

headquarters and received a decrease in his pay. At that time, Mr. Isbell quit. The day that he left TEC he again smoked marijuana, “just like someone would have a drink.”3

On Mr. Isbell’s first or second day of his new e mpl oyment, his employer, Harlan Electric, required him to take a drug test. He informed that employer

that he probably

wouldn’t pass the te

st, buttook it. R ath er than wait for the results, he told Harlan Electric that he was taking a leave of absencewhile his wife had surgery and then did not return.He decided to set up h is o wn c omp any.
Aroundthe day Mr. Isbell quit TEC, a represen tative of Fi rst American Bank, Johnny Dud ley, called Mr. Travi s in a n attempt to locate Mr. Isbell to check on a project he had been working on for the bank. During that conversation, Mr. Travis inform ed Mr. Dudley

that Mr. Isbel

l
no longer worked for

TEC. According to Mr. Dudley, Mr. Travis said that “Tim had failed to take
a drug test and tha

t they had too

k his responsibility

of driving a veh

icleaway from him, and he had gottenmad and left the company.” Mr. Dudley also testified that Mr. Trav is “sai d that it was a policy of Travis to give each employee a drug test and that Tim had some problems earlier in the year before that and he had

– he hadkind of talked to him about it and then they had asked him to take another test and he refused it.” When asked if Mr. Travis said t hat Mr. Isbell was asked to take a drug test in February of 1996, Mr. D udl ey answered in the a

ffirmative and st

ated that he was to

ld that Mr. Isbel

l “had took a drug

test and not passed

it earlier.” He

later agreed

that Mr. Travis

didn’ttell . . . [him] basically anything other than, at one time, he ’d [Mr. Isbell] flunkeda drug test and that there was some suspicion that there might have been some further use

and [TEC] took him off th e truck and he qui

t.

In early Dec

ember, Mr. I

sbell f o rmed Isbell Contracting Electric and started performing specific jobs for First American Bank. Just before Christmas, Mr. Travis visited a representative of Firs t America n Bank, Paul Carothers, to deliver a complimentary calendar. Ac cording to Mr. Carothers,Mr. Travis mentioned “ that Tim had been ta

ken off the road

, brought back in

to the shop because of failing a drug t est at the time he w as still working f

or Travis.” Mr. Ca

rothers also recalled that:

Milton [Travis] brought up the subject of Timothy Isbell doing

some work for Fir

st American. . . He mentioned tha t Tim had failed a

drug test while at Travis Electric. As a result, Tim ha[d] been reassigned to the shop. My recollection of the story was that other emplo

yees traveling with him on out- of-town jobs compla

ined of Tim using drugs in the company truck and while they

were present in

the motels at nigh

t. This was the cause

for the drug tes

t.

Mr. Carother s c ould not recall whether Mr. Travis informed him that Mr. Isbell had subsequently

passed a drug test. He had heard that, but could not remember the source. Mr. Carothers stated that he had learned that Mr.

Isbell had failed a drug

test before talki

ng to Mr. Travis andhad previously known that Mr. Isbell had left TEC because of some drug problems that had surfaced. He stated that Mr. Isbell’s marijuana use was “kind of alrea dy known.” About a

month after his discussion with Mr. Travis, Mr. Carothers sent an e-mail to his supervisor, Mr. Meacham, asking advice on whether to permit Mr. Isbell to do any work for them. The e-mail stated , in part:4

Recently Tim Isbell su rfaced as a con tractor for cabling. Ameristar [a First American subsidiary

or affiliate] has

requested to use

him as they have

been very satisfied with his work. I talke

d to him a

nd got a propos al for some standa rd pricing whic

h is cheaper than Travis . . .

Enter Milton Travi

s. Milton came by to pay a courtesy call andbrought Tim up in the conversation. He repeated an allegation (which Johnny Dudley had a

lready told
me about) that Tim had tested positive for drugs while with Travis. He wasn’t fired, butwas reassigned, which ca used him toquit. I asked him whether he had do cumented proof which he could share with me. Of course he doesn’t; privacy issues.
So, I’m in a quandry

whether I should permit Tim to do any work for us or not. We have a much delayed initiative to do regional RFPs for cabling work, but in the meantime what should I do? And could Tim’s com pany be con

sidered for the RF

P?

Mr. Meacham testified, “Paul had communicated to me that we had a subcontractor doing workand tha t he had received some information regarding some ty pe of substance abuse issue. I don’t recall what the -

- inmy mind, it stuck as a substance abuse issue. . .” He shared the iss

ue with other managers , one of whom responded with other concerns. She told Mr. Meacham, “I have a larger issue. How is

an electrical subcontractor doing work at First American Bank and I don’t know about it?” She was in charge of managing the facility , and stated that she normally had k nowledge of subcontractors and that the bank needed t o fine-tune the po

licy. She sta

ted her concer

ns in another e-mail about Mr. Isbell or any other contrac tor working for the bank w ithout ce rtain procedures being followed:

In response to the Tim Isabell [sic] question: we cannot have anyone wor

k in the First American Center without obtaining landlordapproval. Also, I am not comfortable h aving an uncertain number of contractors working on our systems. When som ethin g goes wrong, it will be n

o one’s fault.Choosing contractors to work on/in building systems needs to stay centralized through F acilities . . .

If we are dissatisfied with Travis’ rates . . . then we need to put an RFP together and qualify another company to work for us. The parameters of qualifica tion wo uld include experience, references, insurance, a nd com pany depth since we often need them in more than one place at once.

One additional consideration is that we are on a pr og ram of strateg

ic alliance with
our good banking customers. That means they get preference. . . over any other RFP respondent.

Let m e kn ow i f you r guys want to go th rough the RFP and qualifi cation process w

ith5

us, to try to qua

lify some one other than Travis to do their work. In any eve nt, we should not have a process that

allows non-Facilities employees to hire electrical or mechanical contractors to work in our owned or leased space.

As a result of t his e-mail and his con versation s with the f acilities manage r , Mr. Meacham issued an e- mail direct ive to Mr. C arothers, w ho forwarded it to othe rs, statin g:
Please don’t e xte nd a ny offers of contract work to Tim Isbell until you hear ba ck from me. Is anyone

else (Ame riSta r?) contemplating using Tim? If so, please inform themthat Tim is not yet approved to perform electri cal wo rk for us. FYI, it is not certain that Tim would be a “FANB-approved” electrician. I’ll keep you posted.

Mr. Meacham testified that the reason for his e-mail was the facilities manager’s concerns andthe issues she rai sed in her e-mail. He agreed that the bank needed to make sure that any contractor

used was on the bank’s approved contractor list. He also testified that this action did not

“ close the door” on Mr. Isbell or anyone else doing work for the bank in the future if p rope r procedures were followed.

After Dave Dozier, an employee of Ameristar, First American Bank’s investment services group, received this communication, he told Mr. Isbell that it appeared that Mr. Travis was try ing “cut the legs out from under” him. Mr. Isbell received no new work at the bank after the e-mail from Mr. Meacham.

II. Slander

At the close o f M r. Isbell’s c ase, the trial co

urt found that the o

nly two claim

s actually asserted in this ca

se were slander

and tortious interf

erence with con

tract. It granted TEC and Mr. Travis’s motions for directed verdict on both.

Because the trial court directed v

erdicts for TEC and Mr. Travis, this case primarily involves questions of law rather than fact. See Norman v. Southern Ry. , 119 Tenn. 401, 422, 104 S.W. 1088, 1093-94 (1907). Thus, we must review the record to determine whether Mr. Isbell's evidence was sufficient to create an issue for the jury to decide. See Underwood v. Waterslides of Mid-America, Inc. , 823 S.W.2d 171, 176 (Tenn. Ct. App. 1991). In conducting this review, we may notweigh the evidence or evaluate the credibility of the witnesses. See Conatser v. Clarksville Coca-Cola Bottling Co ., 920 S.W.2d 646, 647 (T enn. 1995); Benson v. Tennessee Valley Elec. Coop ., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Instea d, viewing the evidence in the light most favorable to the nonmovant, we must give that p arty the benefit of all reasonable inferences from the evidence, and disregard all evidence contrary

to that party's position. See Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Gann v. International Harvester Co. , 712 S.W.2d 100, 105 (Tenn. 1986).

Directed verdicts are ap

propriate only

when reasonable minds can reach no other conclusion. See Williams v. Bro

wn , 860 S.W.2d 854, 857 (Tenn. 1993); Crosslinv. Alsup , 594 S.W.2d 379, 3806

(Tenn. 1980). The jury should decide cases where, even if the facts a re undisputed, re

asonable persons could draw conflicting conclusions from the facts. See Gulf, M. & O.R.R. v. Underwood, 182 Tenn. 467, 474, 187 S.W.2d 777, 779 (1945); Pettus v. Hurst , 882 S.W.2d 783, 788 (T enn. Ct. App. 1993). Such conclusions, however, must be based on more than speculation, conjecture, and guesswork. See Daniels v. White Consol. Indus., Inc. , 692 S.W.2d 422, 425 (Tenn. Ct. App. 1985). Directed verdicts are appropriate when the plaintiff's evidence fails to establish a prima facie case. See Eaton v. McLa

in , 891 S.W.2d at 590-91 n.3.

We will first review the trial court’s dismissal of the slander claim. Regarding the slander claim, the trial c

ourt stated:

Sec ond ly, the truth is a defe nse to slander. I

think there’s some

exceptions, but this is not one of them,

andeverything that was said was true and he did refuse to take a test. One time he did fai

l a test subsequent

ly and passe

d the test one time , but the upshotof it is – the overview was there was a problem with marijuana and the Court grants the verdict on the grounds of slander.

The trial court’s statement that “truth is a defense” is a reference to one of the well-settled principles of the law of defamation. In this State, both slander and libel are conside

red tobe forms of defamation. See Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc. , 876 S.W.2d 818, 820 (Tenn. 1994). “The basis of an action for d

efamation, wheth

er it be for slander or libel, is the defamation resulted in an injury to the person's character and re putation.” Id. Libel involves written defamation and slander, at issue here, involves defamatory lang uage that is spoken. See id.

To establish a prima facie case of defama

tion, the plaintiff

must prove that ( 1 ) a party published a statement; (2) with knowledge that the statement was false and defaming to the other;
or (3) with reckles s disregard for the truth of th

e statement or ( 4) with neglige nce in failing to ascertain the trut h of the statement. See Sullivan v. Baptist Mem’l Hosp. , 995 S.W.2d 569, 571 (Tenn. 1999) (relying on R ESTATEMENT (S ECOND ) OF T ORTS § 58 0 B (1977)). “Pub lication” is a term of art meaning the communication of defamatory matter to a third pe rson. See id.

Truth is an absolute defense “when the defamatory meaning convey ed by the words is true.” Memphis Publ’g Co. v. Nichols , 569 S.W.2d 412, 420 (Tenn. 1978).

The damaging words must be factually false. If they

are true, or essentially true, they
are not action able, even t hough the published statement contains other inaccuracies which are not damaging. Thus, the defense of truth applies so long as the “sting” (or injurious part) of t

he statement is true. “. . . it is not necessary to prove the literal truth of the accusa

ti on in every detail, and that it is sufficient to show that the imputation is substantially true, or, as it is often put, to justify the 'gist,' the 'sting,' or the 'substantial truth' of the defamation.”

Stones River Motors, Inc. v. Mid-South Publ’g Co., 651 S.W.2d 713, 719-20 (Tenn. Ct. App. 1983).7

To be actionable, the statement at issue must “constitute a serious threat to the plaintiff’s reputation.” Id. at 719.

Mr. Isbell’s first argument in defense of his defamation claim is that the trial court misapplied the substantial tru

th doctrine beca

use the “gist”

of Mr. Travis’s statements, as well as some of the
exac t words, we re false. He maintains that the gist of Mr. Travis’s comments was that he had a continuing drug problem when, in truth, he failed one drug test but passed a second.

The re cord, viewed in the light most favorable to Mr. Isbell, shows that Mr. Tra vi s erroneously

told Johnny Dudley that “Tim had failed to take a drug te st.” T he rem ainder of Mr. Travis’s statements to M r. Dudley, t hat Mr. Isbell

had failed a drug

test and that “the

re was some suspicion that there might have been some further use and [TEC] took him off the truck and he quit,”
were true. Mr. Travis t

oldMr. Carothers that Mr. Isbell had failed a drug test and that employees traveling with him on out-of-town jobs had complained of his drug use. These statements were true. Thus, the only untr

ue statement Mr. T

ravis made was tha

t Mr. Isbell

hadrefused to take a

drug test. The truth was that

he had taken a drug

test and failed. T

aking his testimon

y in the best l

ight, he also offered to take another test when he was reassigned. The question presented, then

, is whether the statement that M r. Isbell fai

led to take a drug

test, while not the l

iteral truth, is suf

ficiently c lose to the truth “to show th

at the imputation is s

ubstantially

true, or, as it is of

ten put, to justifythe ‘gist,’ the ‘sting,’ or the ‘substantial tru th’ of the defamation. . . .” Ali v. Moore , 984 S.W.2d 224, 229 (Tenn. Ct. App. 1998).

Mr. Isbell’s second ar gument addresses a separate but related principle, defamation by implication. Tennessee law r ecognized the do

ctrine of defam

a tio n by innuendo or implica tion in Memphis Publ’g Co. v. Nichol

s , 569 S.W.2d at 412. In Nichols , a newspaper was held liable fo r defamation for printing a story which truthfully stated tha t upon finding her husband at the plaintiff’s home, the wife shot the pl aintiff. The art

icle failed to

mention thatother individuals, in addition to plaintiff’s husband, were present when the shooting occurred and that the shooting occurred in the afternoon. These omissions, which were said to give riseto the implication that the plaintiff and the shooter’s husband were having an affair when caught by the shooter, were the

basis for reversing the trial court’s dec

ision to grant the

newspaper’s mot

ion for summary

judgment.

The Nichols

court observed: The proper question is whether the meaning reasonably conveye d by the published words is defamatory, “whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have pr odu ced.” (citations omitted.) The publication of the complete fac

ts could not conceivably have led the reader to conclude that [plaintiff] and [shooter’s husband] had an adulterous relationship. The published statement, therefore, so distorted the truth as to make the entire article false and defamatory. I t is no defense whatever that indi v idual statements

within the article

were literally

true. Truth

is avai lable as an absolu te defense only when the defamatory meaning conveyed by

the words is true.8

Id. , 569 S.W.2d at 420. In essence, Nichols stands for the proposition that “statements literally true may be actionable if they imply facts that ar e not true.” Robert

D. Sack & Sandra S. Baron, L IBEL , S LANDER & R ELATED P ROBLEMS § 3.6 (2d ed. 1994). “The rationale behind this rule is that, when truthful statements carry a defamatory innuendo, the factual implicat ion should also

be true to justify the implication.” Fitzgerald v. Tucker , 737 So.2d 706, 7 17 (La. 19 99). “The prope r question is whether the mea nin g rea son abl y con veyed by t he published words is reasonably understood in a defamatory

sense by the reader or listener.” Pate v. Service Merchandise

Co., 959 S.W.2d 569, 574 (Tenn. Ct. App. 1996).

Mr. Isbell argues

that Mr. Travis’s statements, even if literally true, constituted defamation by implication because they left out the key fact that he had passed his second drug test, which, he argues, gave rise to the false implication that he had a continuing drug problem. To apply the principles of defamation by implication to the facts in this case, we mus t look to whether Mr

. Travis implied false, defamatory innuendo about Mr.

Isbell by truthfully stating that Mr. Isbell failed a drug test. See Fitzgerald, 737 So.2d at 717. The question before us, then, is whether the inclusion of the factt hat Mr. Isbell passed a second drug test, after thirty days notice of the test, would “have a different effect on the mind” of the hearer, in terms of creating a defamatory implication, than the effect created by the true statements actually made.

The gist o f Mr. Travis’s statements were that Mr. Isbell used marijuana. Mr. Isbe ll’s admissions at trial regar

ding his use of mar

ijuana, his use whi

le on TEC trips, and h

is likely failure to pass the drug test g

iven by his subsequent employer establish his reg ular use of marijuana. Further, it appears that Mr. Isbel l’s drug use was

widely know

n in light of his

testimony ab

out his coworkers’ respons e to his first drug test and his admission that he assisted a coworker and an acquaintanceat First American Ban k in pu rchases of marijuana. Under these circumstances, we decline to find that Mr. Travis’s false statement that Mr. Isbell refused to take a drug test constituted “a serious threat” to Mr. Isbell’s rep utati on. Stones River Motors, Inc. , 651 S.W.2d at 719

. Acco rdi ngly, the trial court’s finding that the s

tatement was not de

famatory is

not reversible

error.
Sim ila rly, in light of the facts, wecannot say that the implication arising from Mr. Travis’s statements was false. Unlike the plaintiff in Nichols who was clearly innocent of an extramarital affair, Mr. Isbell

acknowledged his known use of illegal drugs. The truth is that Mr. Isbell failed a drug tes t, p ass ed a s econ d te st a mon th l ate r aft er no tic e, an d su bse que ntl y c onsumed addi tional illegal drugs. In light

of this, the omission of the fact that Mr. Isbell passed the second drug test does notcreate a sufficiently false impression to be actionable. Because the allegedly de famatory meaning behind Mr. Travis’s wo rd s was true, the de famation by

implication argu

ment must fail. Nichols , 569 S.W.2d at 420.

Both of Mr. Isbell’s arguments fail on their basic premise that the true facts which we re published damaged his reputation in a way that would not have occurred if

Mr. Travis (1) had not stated that Mr. Isbell failed to take a drug test or (2) had stated that Mr. Isbell passed a second drug test. Based upon his own testimony, Mr. Isbell established that he hadoften used marijuana and that a number of people knew about it. Mr. Isbell clearly expressedhis opinion thatthere was nothing2 Tenn Cod e Ann. § 47-50 -109, which provide s damages for proc urement of a breach o f contract, states:

It is unl awful f or any person , by inducement, pers uasion, misr

epresentati

on, or other means,

to induce
or procur e the breach or vi olation, re

fusal or f

ailure to per

form any lawf

ul contract by any part y theret o; and, in every case where a bre ach or violation of such contrac t is so procured, the person so procuring or inducing the same sha l l be li able in t reble th e amount of

damages res

ultin g from or incident to the breach of the contract . The party inj ured by such breach may bring suit

for the breach and for such dama ges. 9 wrong with using marijuana, an illegal drug, or in helping others buy it. He thus indicated his belief that statements that he us ed the drug, or sta tements that he fa

iled a drug test,

did not damage hi

s reputation. To the extent that others did not share that op i nion and the information that he used d rugs created an impr

ession damaging

to his reputation, w

e see no basis for

his argument tha

t th e fact that he could p ass a drug test give n suffici ent notice would hav

e preven ted that da

mage. We affirm the trial c

ourt’s dismissal of

the slander clai

m.
III. I nterference With Contract

Mr. Isbell argues that the trial court erred in directing a verdict on his tortious interference withcontract claim. He maintains that he had an implied-i n-fact contrac

t with First Americ

an to perform electrical wor

k and Mr. Travis’ s conduct caused that contract to b e breached in violation of Tenn. Code Ann. § 47-50-109. 2

A contract

may be expressed or imp

lied, written or or

al, but to be enfor

ceable it must res

ult from a meeting of the

minds in mutual assent to terms, be based on sufficient consideration, and be sufficiently

definite to be enforced. See Johnson v. Central Nat’l Ins. Co. , 210 Tenn. 24, 34-35, 356 S.W.2d 277, 281 (1962); Jamestown e on Signal , Inc. v. F

irst Feder

al Sav. & Loan Ass'n ., 807 S.W.2d 559, 564 (Tenn. Ct. App. 1990). The contemplated mutual assent and meeting of the minds cannot be accomplished by the unilateral action of one party, nor by an a mbiguous course of dealing betweenthe two parties from which differing inferences regarding continuation or modification of the original contract

might reasonably be drawn. See Batson v. Plea sant View Util. Dist

., 592 S.W.2d 578, 582 (Ten n. Ct. App. 1979); Balderacchi v. Ru th , 36 Tenn. App. 421, 424-25, 256 S.W.2d 390, 391 (Tenn. Ct. App. 1953). “[A] mere expression of intent or a general willi

ngness to do something . . . in re

tu rn for something to be received does not amount to an ‘offer.’" Talley v. Curtis , 23 Tenn. App. 181, 186, 129 S.W.2d 1099, 1102 (1939).

Gen eral ly, an implied contract is one which is inferred from the conduct of the parties; it is not necessarily expressed in words. Judd v. Heitman, 402 F.Supp. 929 (M.D. Tenn. 1975). A promise will not arise by implication, however, when the circumstances and facts from wh ich the promise wou

ldbe drawn are contrary or completely

inconsistent with the contract to be implied. 17 A M .J UR .2 D Contracts § 3 (1964). Nor may a contract be implied in fact in the fac e of a declarat

ion to the contrary by the party

to be charged. Travelers Ins. Co. v. Williams , 541 S.W.2d 587 (Tenn.1976).10

V.L. Nicholson Co. v. Transcon Inv. & Fin. Ltd., Inc ., 595 S.W.2d 474, 482 (Tenn. 1980).

It is undisputed that no written contract existed between Mr. Isbell and First American Bank. Ho wever, Mr. Isbell argues that a contract for future work ar ose because First Ameri can Ban k establisheda

course of dealing by faxing him work orders and he was told he could do some work for Ameristar in Memphis at some unspecified time in the future.

In contrast, Mr. Dozier, Mr. Isbell’sprimary, if not sole, contact with Ameristar testified that he had not contracte

d with Mr. Isbe

ll for any f

uture work but had

allowed him

to finish the jobs in processbefore cutting

ties with him. Mr. Dozier deni ed breaching a

ny contrac

ts with Mr. Isbe

ll. In addition, Mr. Carothers testified that he had no on-g oing relationship with Mr. Isbell and had promised him the pos sibility of fu ture work “only

to the extent of

one job at a time.”

The e-mails set out above also esta

blish that there wa

s no contract with M

r. Isbell to do any work in the future, much less any specific amount of work. Each of the work orders sent to Mr. I sbell constituted separate contracts for specific jobs, each of which was completed.

Mr. Isbel l asserts that he ha d a contract to do f

uture unspecifie

d work for First A

meric an
. Viewed in the light most favora ble to Mr. Isbe

ll, this evidence simply

is not sufficient to

give rise to a jury question on whether a contract existed. Reasonable minds could not differ on the question of whether there w

as evidence of th

e requisi t e mutual assent and meeting of the minds. It is not present. Mr. Isbell’s unilateral expectation that First American Bank woul

d utilize his services in the future is insuffic

ient to establish thi

s element, which is

essential to his cla

im of tortiou s interference

with contract. See Campbell v. Matlock , 749 S.W.2d 748, 751 (Tenn. Ct. App. 1987) (the existence of a contract is an essential element in such claims).

The court he ld that th e tortious interference with contract claim failed due to the lack of evidence of an express or implied contract between First American and Mr. Isbell. We affirm

the trial court. IV. New Trial and Amendment of Complaint

M r. Isbell frames his final issue as follows: “The trial judge erred in refusing to allow plaintiff a new trial on the grounds that defendants violated Tennessee law in releasing confidential drug test information.” He argues that he proved that TEC and Mr. Travis violated Tennessee law by committing the tort of invasion of privacy and that he is entitled to a new trial on this cause of action, even thou

gh he did not alle

ge that cause u

ntil well after the

directed verdic

t against him.

Mr. Isbell did, indeed, file a motion for new trial which was denied by the trial court. That motion, however, was not based on his alleged entitlement to a new trial on a new cause of action, invasion of p riv acy. Mr. Isbell’s m otion contained es sentially the same arguments

as are presented in this appeal, addressing only the slander and inducement to breach c auses of action. At

the same time he filed his motion for new trial, Mr. Isbell also filed a motion to amend his complaint seeking3 T his motion was apparently prompted by a statement from the trial court when it dismissed the case. In reference to Mr. T ravis ’s disclos ure of the res

ults of conf

idential dr

ug test res

ults, t he court stat

ed, “I don’t f

eel comfortab le dismiss

ing thi s lawsu it. Thi s is st

ill wi thin t he stat ute of limit ations. It’s not libel. I

t’s inva sion of privac

y and you m ay take that app roach in ano ther lawsuit. ”

11 to add a cause of action based on invasion of privacy, and that motion was also denied. 3

We first review the propriety of the trial court’s denial of Mr. Isbell’s motion

for new trial. Trial courts aregiven wide latitude in deciding motions for new trial. See Loeffler v. Kjellgren , 884 S.W.2d 463, 468 (Tenn. Ct. App. 1994) . Their decisio ns to grant or deny such motions are revi ewed for an abuse of discretion. See Esstman v. Boyd, 605 S.W.2d 237, 240 (Tenn. Ct. App. 1979). In his motionfor new trial, Mr . Isbell made e

ssentially th

e same arguments he has asserted
on appeal and argued that the trial court erred by granting a directed verdict. Ha ving ou rselves determinedthe issues adversely to Mr. Isbell, we cannot say that the trial court abused its discretion in refusing to grant a new trial on the basis of the same argume

nts, which were the only grounds asserted in the motion.

In his brief, Mr. Isbell states his request for relief as, “In the event this appellate court recognizes the trial judge’s error on the defamation claim, the plaintiff should be able to sue under boththe defamationand invasion of privacy claims.” Based on that statement, our affirmance of the trial court’s decision dismissing the defamation and inducement to breach claims would

appear to dispose of Mr. Isbell’s issues regarding denial of his motion to amend.
However, Mr. Isbell

also attempts to combine in this appeal the arguments he made in the two separate motions to the trial court, taking the position that the trial court should have granted him a new trial f or the purpo se of allowi ng him to am end his complaint to allege a new cause of action. His argument is that he proved facts to support a finding that TEC and Travis committed the tortof invasion of privacy and that he should be allowed a new trial on an a mended co mplaint alleging this cause of action for the first time. Although this ground is not set out in the motion for
new trial, we will consider the simultaneous filing of both motions as raising the i ssue. Se e Quartana v. Utterback , 789 F.2d 1297, 1300 (8th Cir.1986) (a post-judgment Rule 15(a) motion for leave to amend the complaint should be considered a Rule 59(e) motion to alter or amend judgment because a "motion that

draws into question the correctness of the judgment is functionally a motion under Civil Rule

59(e), whatever its label.") (quoting 9 M OORE ' S F EDERAL P RACTICE , ¶ 204.12[1] (2d ed. 1985)); see also

6 Wright, Miller & Kane, F EDERAL P RACTICE AND P ROCEDURE : C IVIL 2 D § 1489, p. 695 (1990) (“As a pract ical m atter, the motions . . . will be made simultaneously and decided together, since

it usually wou

ldbe a needless

formality f

or the court to gr

ant the motion to reopen the judgment only to deny the motion for le ave to amend.”).

A. Which Rule Governs Consideration of Combined Motions

We have already determined that the trial court properly denied the motion for new trial on4 The federal cou rts have not un iformly resolve d the is sue of what s tandard to apply i n considering s

imilar motions made after th e grant of a m otion to dismiss prior to trial. See Figgie Int’l, Inc. , 966 F.2d at 1179-80 (discussing the various stan dards and finding it unnece ssary to resolve the issue in that case ).
Rule 59( e) states that mo tions to reconside r should on ly be granted if there is a showing of a manifest
error of law or fact o r if new eviden ce not prev iously discover abl e is presented in support of the motion. Russel v. Delco Remy Div. of General Motors

Corp. , 51 F.3d 746, 74 9 (7th Cir.1 995). However, some courts have held that, when a motion for le ave to amend a c omplaint is p resented in conjuncti

on with a Rule 59(e) motion, the more liberal standards of Rul

e 15(a) should go vern. See Dussouy v. Gulf

Coast Inv.Corp. , 660 F.2 d 594 (5 th Cir.198 1); Adam s v. Gould , 739 F.2d 858, 864 (3d Cir.1984 ), cert. denied , 469 U.S. 1122,105 S.Ct. 806, 83 L.Ed.2d 799 (1 985). T hese courts interpret the Supreme Court's opinion in Foma n v. Dav is , 371 U.S. 178,83 S.Ct. 227, 9 L.Ed.2d 222 (1962), to allow amendme nt of a complaint where justice so req uires, even if this amendm ent is technically sought po st-judgmen t by way of a Ru le 59(e) motion. Dussouy , 660 F.2 d at 597 ; Adams , 739 F.2d at 864.
Chavez v. Farmington Foods, Inc. , No. 97-C-1910, 1997 W L 631173 at *3 (N.D. Ill. Oct. 1, 1997).

Tennessee appears to have adopted the more liberal standard where the complai nt is dismi ssed on

a Tenn. R. Civ. P. 12 motion, at least where no a mendm ent has taken p lace prior to dismissal. See Richland Count ry Club, Inc. v. CRC Equities, Inc ., 832 S.W.2d 554,559 (Tenn. Ct. App. 1991) (where co urt grants mo tion to dismiss fo r failure to state a claim, only extraordinary cir cumstances would prohibit plaintiff from exercising the right to amend its complaint).

5 Federal courts have generally interp reted the Fe deral Rule s of Civil Pro cedure as requiring that a jud gment of dismi ssal be s

et aside before a compl

aint ca n be amended: (continued...)
12 the causes of action actually plead and dismissed after trial. The question before us now is whether the trial court acted within its discretion in denying Mr. Isbell a new trial

for the purpose of allowing him to amend his complaint

to add a new c ause of action on the basis that justice requires the amendment. We are unaware of any ruling by Tennessee courts specifically addressing the issue of the proper standard to be employed by a trial court in considering a motion to set aside a judgment of dismissal, after trial on the merits, combined with a post-dismissal motion to amen d a complain t. One federal appellate court defined a simil ar issue as “whether a Rule 59(e) motion [to alter or amendthe judgment] accomp anied by a mo

tion for leave to a

mend [the complaint] s

hould be treated differently

than any oth

er Rule 59(e) motion,” i.e. , whether traditi onal Rule 59(e) sta

ndards should be applied or whether standards governing a R ule 15( a) m oti on t o am end the com pla int sho uld app ly. See Figgie Int’l, Inc. v. Miller , 966 F.2d1178, 1179-80 (7th Cir. 1992). The Figgie case involved
a trial court’s grant of summary judgment to defendants in ruling on a motionto dismiss, and there appears to be some debate regarding the standard to be applied in that situation. 4 However, we find little room to dispute

the answer in the

situation of a judg

ment of dismissal af

ter trial.

Once a judgment is entered on the merits dismissi

ng an action, the

trial court would

have to set aside or vacate that judgment before taking further action in the case. Without an order vacating the judgment dismissing the case on its merits, there technically exists no complaint to amend. 55 (...continued) Where

. . . a complaint is dismissed wit hout leave t

o amend, th

e plaint iff c an appeal t

he judgment

, or alternatively, seek leave to amend under Rule 15(a) after having the judgment reopened u nder either Rule 59 or 60. Unless post-judgment relief is grant ed, the distri

ct court lacks powe

r to gran t a motion to amend the complaint under Rule 15(a). See Public Ci tizen v. Lagged Group, Inc. , 858 F.2d 775, 781 (1s t Cir.1988 ), cert. denied , 488 U.S. 1030,109 S.Ct. 838, 102 L.Ed.2d 970 (1989); see als o 3 Moore supra ¶ 15.10 at 15 -107 ("[After a judgm ent of dismissal plaintiff must move unde r Ru les 59(e) or 60(b) to reopen the judgme nt."); 6 Cha rles A. W right & Arthu r R. Miller, F EDER AL P RACTICE AND P ROCEDURE § 1489 at 692-93 (1990) ("[O]nce ju

dgment is

entered t

he fil ing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60.")”

Acevedo-Vill

alobos v. Hernand ez, 22 F.3d 384, 389 (1 st Cir. 1994 ); see also Figg ie Int'l, Inc. , 966 F.2 d at 117 9 ("It is well settled that after a fina l judgmen t, a plaintiff may amend a complaint un der Rule 15(a) only wi

th leave of cour

t after
a motion under Rule 59(e) or Rule 60(b) has been made and the judgme nt has bee

n set as ide or vacated ."); Amen dola v. Bayer , 907 F.2d 760, 765 n. 4 (7th Cir.1990) ("In this circuit, after a judgment has been entered, a party must have the judgment reopened pursuant to Federal Rule of

Civil Procedure 59(e) or 60(b) and then request leave to amen d pursuant to R ule 15(a)." ).
13 Theref ore, logic and good procedural practice would dictate that even a motion to vacate the ju dgment on the basis that such setting aside is necessary in order to allow amendment must be scrutinized under

Rule 59 or Rule 60 sta

ndards. We find the

following reas

oning persuasiv

e:
Most c ourts fac ed with the problem have held that once a judgment is entered the filing of an amendment [to a complaint] cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60. . . . This approach appears sound. To hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary

to the philosophy

favoring final

ity of judgm

ents andthe expeditious termination of litigation. Furthermore, the draftsmen of the rules includedRules 59(e) and 60(b) specifi cally to provide a mecha

nism for those situations in which relief must be obtained after judgment and the broad amendment policy of Rule 15(a) should not be construed in a ma nner that would re nder those provisions meaningless.

The fact that a party desiring to amend after judgment has been entered is obliged first to obtain relief from the judgment imposes some important restrictions on t he ability to employ Rule 15(a). For ex am ple, a judgment generally will be set aside only to accommodate some new matter that could not have been asserted during the trial, which means that relief will not be available in many instances in which leave to amend would be granted in the prejudgment situation. 6 Wright, Miller & Kane, F EDERAL P RACTICE AND P ROCEDURE : C IVIL 2 D § 1489 at 692-94.

Whilethe quotedtreatise section obviously

deals with federal procedural rules, we think the reasoning applies to our equivalent state rules and to Tennessee’s interest in finality. Therefore, we hold that a post-trial judgment dismissing an action must beset aside on the grounds available under6 At least one judge has disti nguished between t

hose two types of motio ns. See Grissim v. Gris sim, 637 S.W.2d 873, 875 (Tenn. Ct.

App. 1982) (Conner

, J., di ssenti ng). Judg

e Conner has

com mented t

hat “T.R.C .P. 59 clea rly different iates between a ‘ Motion for New T rial’ and a ‘Motion to A lter or Amend Jud gment.’ Obviously, the purpo se of the former is to, in eff

ect, start the

trial proceedi

ng anew, whil

e the purpose of t

he latter is to modify

in some respect actions previously t

aken by the court

without ret

urning to ‘ square one.’” Id. It is clear that the only way Mr. Isbell can get the relief he seek s on a claim o f invasion of pr ivacy is if a new trial is gra nted; howe ver, his request for ne w trial is based on a ruling by th e judge tak ing the case aw ay from the jur y. Some au thority exists which w ould indica te that a directedverdict is not the proper su bject for a m otion for new trial. See 66 C.J.S ., New Trial § 5b., p. 66 ; see also 4 MacLean, Bonnym an & Br andt, T ENNESSEE P RACTICE §§ 59:6 - 59:9;

but see Moo re v. Standard L ife & Accident Ins. Co. , 504 S.W.2d 373 , 375 (Tenn. Ct. App. 1972).
14 Tenn. R. Civ. P. 59 or 60, whichever is applicable, before the complaint can be amended. Therefore, even when the ground asserted for relief from the judgment is that it is necessary in order to allow amendment, the trial court must apply Rule 59 or Rule 60 standards to that ground.

B. Application of Post-Judgment Motion Standards Again, we have already decided that the trial court acted within its discretion in denying Mr. Isbell’s motion for new trial on the grounds asserted in that written motion. We now consider, using the standard for post-judgment motions, whether the motion was also properly denied on the ground that Mr. Isbell should be entitled to a new trial on a new cause of action. Whether Mr. Isbell’s posttrial motion should

be considered

a Rule 59 motion for new trial or a Rule 59.04 motion to alter or amendthe judgment is not clear. 6 We think, in fact, that Mr. I sbell’s motion, to the

extent it requests vacating the judgment so that he can amend his complain

t and start over, s

hould more proper

ly be considered

a Tenn. R. Civ. P. 60 motion for relief from judgment. However, any distinction between these types o f motions is not dispo sitive of t he issue b efore us, because none appe

ars to aut horize the relief requested here.

In addition to the grounds for new trial which apply solely to jury verdicts and, therefore, are notapplicable here, the most common groundis newly discovered evidence. See 4 MacLean, Bonnyman

& Brandt, T ENNESSEE P RACTICE § 59:7 and 59:8 (2000). Similarly, a motion to alter or amendthe judgment, often used “to seek reconsideration of a dispositive ruling made on motion or after a non-jury trial,” may also be ba sed on mistakes of

law by the trial court or newly discove red evidence. See id

at § 59:9. To be successful in a motion on the basis of newly discovered evidence, the movant must prov

e that the evidenc

e was discovere

d after the trial

, that it could not have been discovered

earlier with due diligenc

e, that it is

material and not just cumulative or impeaching, and that it will probably

change the outc

ome if a new trial is granted. See Spence v. A llstate , 883 S.W.2d 586, 596 (Tenn. 1994). Mr. Isbell attempts to raise a new issue, not to introduce newly discovered evidence. The c

ause of action he

seeks to add was a

vailable to Mr. I

sbell throughout h

is lawsuit.

Rule59 does not provide

the relief soug

ht by Mr. I

sbell. “It is

fundamental to our law ‘that a party cannot raise a

new issue, or present a new line of proof, on motion for a new trial that was notwithin the scope of the pleadings and was not pr e sented to the court at the trial of the case.’” Lones v. Blount County Beer Bd. , 538 S.W. 2d 386, 390 (Tenn. 1976 ) (quoting Serv-U-Mart, Inc. v.15

Sullivan County , 527 S.W.2d 121, 124 (Tenn. 1975)). “We do no t find any au thority which authorizes a motion to alter or amend in order to allow a

party to present her case under a new theory when the facts and law

were available

to be argued at

trial priorto the court’s original decree.” Spencer v. Hurd Inv. Properties Inc. , Shelby Law No. 67, 1991 WL 60541 (Tenn. Ct. App. April 23, 1991) (perm. app. denied Sept. 9, 1991).

Tenn. R. Civ. P. 60 provides a mechanism where

by, on terms

that are just,

a trial court may relieve a party from a final judgment for reaso ns specified in the rule: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) f

raud, misconduct,

or other misconduc

t of an adverse

party; (3) the ju dgment i s void; (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vaca

ted, or it is no long

er equitable that a judgment

should have prospectiveapplication; or (5) any other reason justify ing relief from the operation of the judgment. Te nn. R. Civ. P. 60.02. Giv ing Mr. Isbe

ll’s request the most favorable interpretation, w

e will consider his

combined motions as

a moti on for relief from the judgment of dismissal under subsection (5), “for any other reason justifying relief.” The reason he gives is that justice requires a new trial on the c ause of action he did not allege but thinks he proved. Rule 60.02(5)’s “any other reason,” however, is construed a s an exacting standard:

It has been said that

despite its broad language, Tennessee Rule of Civil Procedure 60.02(5) is co nstrued narrowly. The standards of Rule 60.02(5) “are more demanding than t hose appli cable to the other grounds for [Rule] 60.02 relief.” Tennessee rule of Civil Procedure 60.02(5) is intendedto provide relief only in the most unique, exceptiona

l, or extraord inary circ

umstances. Rule 60 .02(5) is applicable

only to situations that are not covered by the other clauses in Rule 60.02
or in cases of extreme

hardship. Tennes see Rule of Civil Procedure 60.02(5) is “not for the purpose of relieving a party from free, calculated, and deliberate choices he has made.”

NCNB Nat’l Bank of North Carolina v. Thrailkill , 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993) (citations omitted).

Mr. Isbell’s desire to h ave another opportunity for redress under a theory of law which existed at the time of his or iginal complaint d

oes not ris e to the leve l of “extraordinary circumstances”

justifying relief

under Rule 60. See Underwood v. Zurich Ins. Co. , 854 S.W.2d 94, 98 (Tenn. 1993); Davidson v. Davidson , 916 S.W.2d 918, 923 (Tenn. Ct. App. 1995).

Federalcourts consideri

ng similar reque

sts to be allowed to p

resent new issue

s, arguments, or causes of

action after judgment have found that Fed. R. Civ. P. 59 and 60 do not authorize that relief. It is well-settled under federal law that Fed. R. Civ. P. 59 may not be used to bring a c

laim that should and could have been raised earlier. See Figgie Int’l, Inc. , 966 F.2dat 1180. As one court has observed:16

Rule 59(e) permits the par ties to file, within ten days of the entry of a judg ment, a motion to alter or amend the judgment. It may be inv oked to alert the court to matter s such as newly dis covered eviden

ce or manifest e

rrors of law or f

act. However, the Rule

does not give a pa

rty the oppor

tunity to undo its own procedural failures or present new evidence or ar g uments “that could and should have been presented to the district court prior to judgment.” Chavez v. Farmington Foods, Inc. , 1997 WL 631173 at *1 (citations omitted).

Sim ila rly, another cou rt, consid ering a Fed. R. Civ. P. 60 motion to set aside its earlier grant of summary judgment dismissing plaintiff’s lawsuit and to allow amendment of the complaint to add
an additional issue, observed that Rule 6 0 standards required a showing of extraordinary circumstances and that

“the desi

re to pursue other legal theories that were alway s available and squarely implicated in the de

fendant’s positio

n herein does not p

rese nt a ny extraordinary circumstances,

and in fact would turn the presumption of finality of judgments on its head.” Rastelli Bros., Inc. v. Netherlands Ins. Co. T/A Peerless Ins. Co. , 68 F. Supp. 2d 451, 454 (D. N. J. 1999). The court further explained:

Rather than an unusual circumstance such as a change in co ntrol ling law or newly discovered

evidence, plain

tif f simp ly argues that it should be allowed to file an AmendedComplaint because this Court has adjudged that pl aintiff may

not obtain the relief sought in t

he i nitial Complaint. This argument is unavailing. In the Complaint, plaintiff chose its issues, the parties litigated them, and the Court decided them upon the merits

in favor of the de

fendant. This

case having been discovered, briefed, argued, and de

cided on the merit

s, plaintiff cannot n

ow bring an entir

ely new l awsuit in the disguise of a motion to amend, especially when no circumstance prevented plaint

iff from doing so

prior to judgment

. Id.

We find the reasoning of these courts sound and applicable to Mr. Isbell’s request. As stated in Freeman v. Continental Gin Co. , 381 F.2d 459, 469 (5th Cir. 1967), and quoted elsewhere many times, a busy court “need not allow itself to be imposed upon by the pr esentation of theories seriatim .” Neither should the o ppo sin g par ty wh o ha s un derg one the bur den s of dis cov ery, preparation, and trial of a matter be imposed upon by being forced to underg o a second trial bec

ause the plai ntiff wants to add a cause of action he did not assert, but could have asserted, earlier

. “[T]here must be an end finally to a particular litigation.” Rastelli Brothers, Inc. , 68 F. Supp. 2d at 453.
Therefore, we hold that the tri al court properl

y denied Mr. Isbell’s motions because neither Rule 59 nor Rule 60 e

ntitles him to the rel

ief he sought.7 The federal rules have bee n similarly interpre ted. See Du ssouy v. G ulf Coast In v.Corp., 6 60 F.2d at 5 97

("[R]ule 15(a) s everel

y rest rict s the j udge' s fre

edom, directing that leave to amend ‘shall

be freely gi

ven when justi

ce so requires .’ It evinces a bias in favor of gran ting leave to am end.”).
17 C. Rule 15 Amendment

After Judgment on

the Merits

Mr. Isbell asserts that his motion to amend should have been granted, firs t on the basis of Tenn. R. Civ. P. 15.01's dir ection that “lea

ve [to amend] shall be

freely g iven when justice

so requires.” Implicit in this assertion is an argument that the motion to amend can be considered even if the judgment wer

e not vacated or

that Rule 15 standards should be applied to his motion for new trial. We have already determined those issues. However, even if w e applied Rul e 15 to his motions, the outcome would not change.

Prior to the adoption of the Tennessee Rules of Civil Procedure, trial courts were vested with wide discr et ion in determining whether to allow amendment of pleadings. “The exercise of discretion by a trial judge in matters of amen dment ‘has been se

ldom adversely

reviewed on app

eals; andit will be presumed that allowing or refusing an amendment was done in the exercise of legal discretion, in the absence of a showing to the contrary.’” Buck v. Wes

t , 58 Tenn. App. 539, 542-43, 434 S.W.2d 616, 617 (Tenn. Ct. App. 1968); see Tenn. Code Ann. § 20-1504 [repealed]. That broad disc retion, however, was de scribed in langu

age implyi

ng that it did not inc

lude the allo

wance o f post-judgment

amendment. “The

matter of allowing

amendments . . . is w

ithinthe discretion of the court and these amendments may be allowed at any stag

e in the proceed

ings before a c

ase is finally submitted to the jury or at any time before judg ment.” Buck , 58 Tenn. App. at 542, 434 S.W.2d at 617; see also Daniels v. Talent , 212 Tenn. 447, 462, 370 S.W.2d 515, 522 (1963).

In decisions after the adoption of Rule 15, our courts have interpreted the rule’s “freely given” language as a limitation on the trial court’s discretion to deny amendment. “This p

roviso in the rules substantially lessens the exercise of pre-trial discretion on the part of a trial judge.” Branch
v. Warren , 527 S.W.2d 89, 91-92 ( Tenn. 1975); see HMF

Trust v. Bankers Trust Co., 827 S.W.2d 296, 301 (Tenn. Ct. App. 1991). 7 As the quote from Branch v. Warren demonstrates, however, language in those cases hold ing that Rule 15.01 su bstan tially lessens the trial court’s discretion specifically

limits that holding to the exercise of pre-trial discretion. See Huntington Nat’l Bank v. Hooker , 840 S.W.2 d 916, 923 ( Tenn. Ct. A pp.1991)( citing Branch v. Warren , 527 S.W.2d 89 at 91- 92); Gardiner v. Word, 731 S.W.2d 889, 891 (Tenn. 1987) (“Cases since Branc h v. Wa rren have emphasized the liberality with which trial courts

should approach the question of whether a pretrial motion to amend should be granted.”).

Federalcourts have similarly, but more explicitly, inter preted R ule 15(a) of the Federal Rules of Civil Procedure in the post-judgment situation:

While Fed. R. Civ. P. 15(a ) endows a distric

t court with "virtu

ally unlimit

e d discretion" to allow amendments before entry of judgment, that discretion narrows considerably after entry

of judgment. See 6 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, F

EDERAL P RACTICE AND P ROCE DURE § 1489 (2d ed. 1990 &8 We note that Rule 15.02 (motion to amend to conform pleadings to the evidenc e) specifically provides that

the motion to amend m ay be mad e “at any time, eve n after judgm ent,” but Ru le 15.01 has no similar la nguage. 18 Supp.1999).
Vielma v. Eureka Co ., 218 F.3d 458, 468 (5th Cir. July 20

, 2000); accord Dierson v. Chicago Car Exch ., 110 F.3d 481, 489 ( 7th Cir. 1996); First Nat’l Bank of L ouis ville v. Continental Ill. Nat’l Bank & Trust of Chicago , 933 F.2d 466, 468 (7th Cir. 1991) (the presumption in favor of liberality in granting motions to amend, Fed. R. Civ. P. 15(a), is reversed after judgment has been entered).

WhileRule 15(a) establishes that leave to amend should b e "freely given," post-judgment

motions to amend are treated with greater skepticism than prejudg ment motions. The likelihood that amendment will cause undue delay in the pr oce edings is a legitimate rationale for denying a motion to amend. After a judgment has been issued, t

he conclusion tha

t amendment will ca

use undue delay

is particularly justified.

Premo v. Martin , 119 F.3d764, 772 (9th Cir. 1997), cert. denied, 522 U.S. 1147 (1998) (citations omitted). It is well established that the presumption that leave to amend shallbe freely given pur suant to Rule 15(a) disappears after the entry of judgment. Harris v. City o f Auburn, 27 F.3d 1284, 1287 (7th Cir.1994). A party seeking amendment at that sta ge of the proceedi ngs mu st provide the distr ict court with a g

ood reason to gr

ant its motion. See id. , (citing First Nat'l Bank v. Continental Illinois Nat'l Bank, 933 F.2d 466, 468 (7th Cir.1991)). Illinois Conferenc

e of Teamsters and E

mployers Welfare Fund v. Steve Gilbert Trucking , 71 F.3d 1361, 1368 (7th Cir. 1995).

Whilefederal decisions interpreting federal rules of procedure are not bind ing on state cour ts, we find them helpful in interpreting our own rules which are modele d after the fede

ral. “It is proper that Tennessee courts look to the interpretation given comparable federal rules by the federal courts.” Williamson County v. Twin Lawn Dev. Co. , 498 S.W.2d 317, 320 (Tenn. 1973); see Hunti ng ton Nat’l Bank , 840 S.W.2d at 921. Regarding the effect of Rule 15's dire ctive that ame

ndment be freely granted when justice so requires, we find the reasoning of the federal courts quoted above sound and notinconsistentwith interpretations by Tennessee appellate courts. Therefore, we hold that motions to amend, made after judgment on the merits, pursuant to Tenn. R. Civ. P. 15.01, are not entitled to any presump

tion favoring am

endment. 8

Factors to be considered in deciding whether to allow am endments to pleadings include undue delay in filing, lack of notice to the opposing party , bad faith by the moving

party, repeated failur e to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendmen t. See Harden v. Danek, Med. Inc ., 985 S.W.2d 449, 454 (Tenn. Ct. App.19

1998). A number of federal court s, appl ying these or similar factor

s, have determine

d that postjudgment motions to

amend to add new issues, pa

rticularly those made after

dismissal on the mer

its, were properly denied.

In cas es where a party seeks to amend her complaint after e ntry of judgment, "we have consistently

upheld the denia

l of leave to amen

d where the part

y seeking to amend has notclearly established that he could not reasonably have raised the new matter prior to the trial court's merits ruling." Briddle [ v. Scott ], 63 F.3d [364] at 380 [ (5th Cir. 1995)]; see also

Wright et al., § 1489 ("A number of courts, exerci sin g their discretion under Rule 15(a), have refused to allow a post-judgment amendment when the moving party had an opportunity

to assert the amendment during trial but waiteduntil after jud gment b efore requesti ng leave; these

courts have base

d their conclusions on the moving party’s undue delay .").
Vielma , 218 F.3d at 468.

We have consistently

recognized undue delay as justifying denial of leave to amend

. . . particularly where leave to amend is sought to raise new ma tters aft er the tria

l
cou rt has ruled on the merits or entered judgment. In such circumstances we hav e consistently

upheld denial of leave to amend where the party seeking to a mend has notclearly

establishedthat he could not reasonably have raised the new matter prior to the tria l court’s m erits ruli ng. Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995).

We find this reasoning persuasive and, when applied to a judgment of dismissal on a directed verdict after plaintiff has put

on his proof, compelling. In such situations, as here, it is less likely that justice will require amendment. See Twohy v. First Nat’l Bank of Chicago , 758 F.2d 1185, 1196 (7th Cir. 1985) (justice may require something less in post-judgment than in pre-judgment situations). We can find no basis upon which the trial court should have or could have granted Mr. Isb ell a new trial so that he could have another “bite at the apple” under a new theory which wa s available to him throughout

these proceedin

gs. Therefore

, we find that the tr

ial court acted w

ithin its discretion to re

fuse to amend the c

omplaint under Ten

n. R. Civ. P. 15.01, so a

s to allege a

new cause of action after a directed verdict on the causes of action initially alleged and tried.

Mr. Isbell also makes an

argument that another section of Rule 15 requires that he be allowed to amend his compla

int. That section, T

enn. R. Civ. P. 15.02, p

rovides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the

pleadings. Such amendment of the p leadings as may

be necessary

to cause them to

conform to the evidence and to raise these issues may be made upon motion of any party at any time, eve n after judgment; but failure so to amend does not affect the result of t h e trial of these issues. Provided, however, amendment after verdict so as to

increase20

the amount sued for in the action shall not be permitted. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the

pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy

the court that the

admissio n of s uch evidence would prejudice that party in maintaining the action or defense upon the merits. The court may

grant a continuance to enable the objecting party to meet such evide nce.
Under the language of Rule 15.02, the pleadings may be amended when issues not previously rais ed are tried by implied consent. The trial judge's determination with respect to the issue of i mplied consent must be upheld unless there has been an abuse of discretion. See Zack Chee k Builders, Inc. v. McLeod, 597 S.W.2d 888, 891 (Tenn. 1980); Lapray v. Smith , 804 S.W.2d 87, 91 (Tenn. Ct. App. 1990).

Rule15.02 codifies the common sense notion that if the parties actually tried an issue “the content of the pleadings and a retrial to tread old ground become meaningless. . . Indee d, under a proper inter pretation of Rule 1 5.02, . . . [amendmen t is] largely

unnecessary

, except a s a ho usek eeping measure designed to insure the integrity and clarity of the record on appeal.” Zack Cheek Builders, Inc ., 597 S.W.2d at 892. Rule 15.02 clearly seeks to place substance over form, and th e re al question before us is whether the parties actually tried the issue delineated by the amendment. In short, the ultimate inquiry is whether there was implied consent from all parties in this case to try the issue of invasion of privacy

. See Wallace v. Hardin , No. 02A01-9702-CH-00048, 1997 WL 775572 at *6 (Tenn. Ct. App. Dec. 17, 1997) (no Tenn. R. App. P. 11 application filed). Mr. Isbell’s own admission that the issue was not tried appears to answer that question. In reference to the invasion of pri

vacy claim

, his motion to amend specifically stated “such issues were not tried in the previous trial . . .”

In fact, Mr. Isbell

does not seek to amend the judgment simply to conform to the evidence. Instead, he seeks to alter

the judgment by vacating the dismissal. He does not want to amend the complaint to

conform to evidence

adduced at trial, but wants a new trial on a new cause of action. Rule 15.02 is simply not available to him to provide the relief he wants. The trial court acted withi

n its discretion in refusing to grant the motion to amend pursuant to Rule 15.02.

V.

Acco rdi ngly, the judgment of the trial court is affirmed. This case isremanded for any further proceedings which may be necessary

. Costs of this appeal

are to be taxed to Mr

. Isbell, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ PATRICIA J. COTTRELL, JUDGE