               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                January 13, 2015 Session

                    BASHAR F. KADDOURA
                             v.
    CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY
             D/B/A ERLANGER MEDICAL CENTER

                   Appeal from the Circuit Court for Hamilton County
                   No. 13C808    Jacqueline Schulten Bolton, Judge


               No. E2013-02573-COA-R3-CV-FILED-APRIL 27, 2015


The plaintiff appeals the trial court‟s dismissal of his action against the defendant
hospital. The plaintiff averred that he had entered into a contract with the hospital to pay
$6,720.00 for a bariatric surgical procedure. Due to complications following surgery, the
plaintiff required a second surgery, incurring additional charges. The plaintiff brought
this action, alleging negligence, breach of contract, money had and received, and unjust
enrichment. The hospital moved to dismiss the action pursuant to Tennessee Rule of
Civil Procedure 12.02(6). Following consideration of the pleadings and argument of
counsel, the trial court dismissed the action with prejudice, finding that the complaint
sounded in medical malpractice and that the plaintiff had failed to comply with the
requirements of Tennessee Code Annotated §§ 29-26-121 and -122, as well as the statute
of limitations provided by the Governmental Tort Liability Act. See Tenn. Code Ann.
29-20-305(b). The plaintiff concomitantly filed a motion to alter or amend the judgment
and a motion seeking permission to amend the complaint. Following a hearing, the trial
court denied the plaintiff‟s motion to alter or amend the judgment but granted the
plaintiff‟s motion to amend the complaint. The plaintiff appeals the trial court‟s denial of
his motion to alter or amend the judgment and the court‟s dismissal of his action. On
appeal, the hospital raises the issue of whether the trial court erred by simultaneously
upholding its dismissal of the action while granting the plaintiff‟s motion to amend the
complaint. We determine that although the plaintiff‟s complaint averred a separate claim
for breach of contract not addressed by the trial court, the complaint failed to state the
contract claim such that relief could be granted. We therefore affirm the trial court‟s
dismissal of the complaint with the modification that the breach of contract claim is
dismissed without prejudice. In addition, we vacate the trial court‟s grant of the motion
to amend the complaint because it should not have been granted concomitantly with the
dismissal of the complaint.
         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
           Affirmed in Part as Modified, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.

Richard Korsakov, Chattanooga, Tennessee, for the appellant, Bashar F. Kaddoura.

Arthur P. Brock and Drew H. Reynolds, Chattanooga, Tennessee, for the appellee,
Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Medical Center.

                                              OPINION

                              I. Factual and Procedural Background

       The facts underlying this action are essentially undisputed. The plaintiff, Bashar
F. Kaddoura, underwent bariatric surgery at the defendant facility, Chattanooga-Hamilton
County Hospital Authority d/b/a Erlanger Medical Center (“Erlanger”), on April 27,
2010. Believing that the procedure would not be covered by his health care insurance,
Golden Rule Insurance Company (“Golden Rule”), Mr. Kaddoura had paid Erlanger
$6,720.00 in advance. Mr. Kaddoura experienced complications following the surgery
and required a second procedure to repair two broken abdominal wall hernia sutures on
April 30, 2010. Thereafter, Mr. Kaddoura recovered without further complications and
was discharged from Erlanger on May 2, 2010.

      Erlanger submitted total charges in the amount of $32,364.00 to Golden Rule for
procedures and related hospital care. After disallowing one charge of $27.00, Golden
Rule paid $22,187.34 to Erlanger on or about March 4, 2011. It is undisputed that
Erlanger subsequently “sued” Mr. Kaddoura on August 22, 2012, alleging that he owed
Erlanger $2,549.31 plus attorney‟s fees and court costs.1

       On June 17, 2013, Mr. Kaddoura filed a complaint against Erlanger, alleging
breach of contract, negligence, money had and received, and unjust enrichment. He
requested damages in the amount of $22,187.34, the amount previously paid to Erlanger
by Golden Rule. On July 19, 2013, Erlanger filed a Tennessee Rule of Civil Procedure
12.02(6) motion to dismiss, to which Mr. Kaddoura subsequently filed a response.

     Following a hearing conducted on August 5, 2013, the trial court dismissed Mr.
Kaddoura‟s action, finding that it was a “health care liability action” and that Mr.
1
 Although both parties note this previous action in their respective briefs on appeal, the record contains
no documentation of Erlanger‟s lawsuit against Mr. Kaddoura.
                                                    2
Kaddoura had failed to comply with Tennessee Code Annotated § 29-26-121 (Supp.
2010) (requiring sixty days‟ notice to defendants prior to filing the complaint) and -122
(requiring the filing of a certificate of good faith with the complaint).2 The court further
found that Mr. Kaddoura‟s action was time-barred pursuant to the one-year statute of
limitations applicable to tort actions against governmental entities pursuant to the
Governmental Tort Liability Act (“GTLA”). See Tenn. Code Ann. § 29-20-305(b)
(2012). The trial court entered an order to this effect on August 28, 2013.

       Four weeks later on September 26, 2013, Mr. Kaddoura concomitantly filed a
Tennessee Rule of Civil Procedure 59.04 motion to alter or amend the judgment and a
Tennessee Rule of Civil Procedure 15.01 motion requesting leave to amend the original
complaint. Erlanger subsequently filed a response to these motions. On October 17,
2013, the trial court entered an order denying Mr. Kaddoura‟s motion to alter or amend
the previous order but granting his motion to amend the complaint. Mr. Kaddoura timely
appealed the trial court‟s denial of his motion to alter or amend the order dismissing his
complaint. On appeal, Erlanger raises the issue of whether the trial court erred by
simultaneously upholding its dismissal of the original complaint while granting Mr.
Kaddoura leave to amend the complaint.

                                          II. Issues Presented

       Other than stated “issues” related to the applicable standard of review, which is
not in question, Mr. Kaddoura presents one issue on appeal, which we restate as follows:


        1.      Whether Mr. Kaddoura‟s complaint stated facts that, taken as true, alleged
                one or more claims for relief other than those sounding in medical
                malpractice or health care liability, and if so, whether the trial court erred
                by granting Erlanger‟s Rule 12.02(6) motion to dismiss.

        Erlanger presents an additional issue on appeal, which we restate slightly:

        2.      Whether the trial court erred by granting Mr. Kaddoura‟s motion for leave
                to amend the complaint.


2
 We note that insofar as Mr. Kaddoura‟s action alleges medical malpractice, it is controlled by the
Tennessee Medical Malpractice Act (“TMMA”), rather than the amended version of the Act, entitled the
Tennessee Health Care Liability Act. See Tenn. Code Ann. §§ 29-26-101, et seq. (2012); Dunlap v.
Laurel Manor Health Care, Inc., 422 S.W.3d 577, 578 n.1 (Tenn. Ct. App. 2013) (explaining that the
amended definition of a health care liability action applies only to actions accruing on or after October 11,
2011). It is undisputed that Mr. Kaddoura‟s action accrued prior to October 11, 2011.
                                                      3
                                III. Standard of Review

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.
1998)).

      In reviewing the trial court‟s dismissal of a complaint pursuant to Rule 12.02(6) of
the Tennessee Rules of Civil Procedure, we must only consider the legal sufficiency of
the complaint dismissed. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691,
696 (Tenn. 2002). As our Supreme Court has explained:

      A Rule 12.02(6) motion to dismiss only seeks to determine whether the
      pleadings state a claim upon which relief can be granted. Such a motion
      challenges the legal sufficiency of the complaint, not the strength of the
      plaintiff's proof, and, therefore, matters outside the pleadings should not be
      considered in deciding whether to grant the motion. In reviewing a motion
      to dismiss, the appellate court must construe the complaint liberally,
      presuming all factual allegations to be true and giving the plaintiff the
      benefit of all reasonable inferences. It is well-settled that a complaint
      should not be dismissed for failure to state a claim unless it appears that the
      plaintiff can prove no set of facts in support of his or her claim that would
      warrant relief. Great specificity in the pleadings is ordinarily not required
      to survive a motion to dismiss; it is enough that the complaint set forth “a
      short and plain statement of the claim showing that the pleader is entitled to
      relief.” White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn.
      2000) (citing Tenn. R. Civ. P. 8.01).

Id. (additional internal citations omitted). The complaint must, however, “„do more than
simply parrot the legal elements of the cause[s] of action,‟ but must plead facts that, if
true, would support each required element.” Morris Props., Inc. v. Johnson, No. M2007-
00797-COA-R3-CV, 2008 WL 1891434 at *1 (Tenn. Ct. App. Apr. 29, 2008) (emphasis
in original). The consideration of the gravamen of a complaint in determining the
applicable statute of limitations is a question of law, “which may be appropriately
addressed in a motion to dismiss under Rule 12.02(6) of the Tennessee Rules of Civil
Procedure.” Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 638 (Tenn. 2003).




                                            4
                      IV. Grant of Motion for Rule 12.02(6) Dismissal

        Mr. Kaddoura contends that the trial court erred by finding that his action was
governed by the Tennessee Medical Malpractice Act (“TMMA”). See Tenn. Code Ann.
§§ 29-26-115, et seq. (Supp. 2010). He does not dispute the trial court‟s finding that he
failed to comply with the TMMA requirements of (1) providing written notice to the
defendant at least sixty days prior to filing a medical malpractice complaint and (2) filing
a certificate of good faith with the complaint. See Tenn. Code Ann. §§ 29-26-121, -122.
Mr. Kaddoura also does not dispute that because Erlanger is a governmental entity, see
Tenn. Code Ann. § 29-20-102(3) (2012), any action predicated on a medical malpractice
or negligence theory would have been subject to the one-year statute of limitations
provided in the GTLA, see Tenn. Code Ann. § 29-20-305(b).3 Mr. Kaddoura concedes
that his commencement of the instant action was outside the GTLA‟s one-year statute of
limitations.

        Mr. Kaddoura‟s contention is based on his argument that the six-year statute of
limitations governing “[a]ctions on contracts not otherwise expressly provided for”
governs this action. See Tenn. Code Ann. § 28-3-109(a)(3) (2000). Erlanger contends
that the trial court properly found that the controlling statute of limitations for this action
was that provided by the TMMA because the gravamen of Mr. Kaddoura‟s complaint
sounded in medical malpractice rather than contract law. Upon our thorough review of
the pleadings, we conclude that Mr. Kaddoura did present a separate claim for breach of
contract. We further conclude, however, that Mr. Kaddoura failed to allege facts
sufficient to state a contract claim upon which relief could be granted.

                             A. Applicable Statute of Limitations

       Having conceded that he is precluded from bringing a claim under the TMMA or
GTLA, Mr. Kaddoura now asserts that he “does not seek relief for the medical care he
received, but damages of a purely financial nature: breach of contract, money had and
received and unjust enrichment.” In support of his argument, Mr. Kaddoura cites our

3
 We note that under the statutory scheme applicable to the instant action, our Supreme Court has held that
the 120-day extension to the TMMA statute of limitations provided by Tenn. Code Ann. § 29-26-121(c),
allowing for pre-suit notification, does not apply to medical malpractice actions brought under the GTLA.
See Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 46 (Tenn. 2013). However, under the
amended Tennessee Health Care Liability Act, this Court has held that the newly enacted Tennessee Code
Annotated § 29-26-101(a)(1) (2012) does apply to extend the one-year GTLA statute of limitations by
120 days for plaintiffs who have complied with the pre-suit notification requirements of Tennessee Code
Annotated § 29-26-121. See Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-
R3-CV, 2015 WL 340265 at *12 (Tenn. Ct. App. Jan. 27, 2015). Inasmuch as Mr. Kaddoura failed to
comply with the pre-suit notice requirement and was, in any case, subject to the TMMA as analyzed in
Cunningham, our analysis is not affected by the enactment of Tennessee Code Annotated § 29-26-101(a).
                                                      5
Supreme Court‟s decision in Estate of French v. Stratford House for the proposition that
“when the conduct alleged is not substantially related to the rendition of medical
treatment by a medical professional, the medical malpractice statute does not apply.” See
333 S.W.3d 546, 555 (Tenn. 2011) (quoting Gunter, 121 S.W.3d at 641). In contrast,
Erlanger urges this Court to consider Mr. Kaddoura‟s complaint as sounding only in
medical malpractice. However, “in choosing the applicable statute of limitations, courts
must ascertain the gravamen of each claim, not the gravamen of the complaint in its
entirety.” Benz-Elliott v. Barrett Enters., LP, ___ S.W.3d ___, ___, 2015 WL 294635 at
*8 (Tenn. Jan. 23, 2015) (emphasis added).

       As explained above, any claim that Mr. Kaddoura originally brought under
medical malpractice is pretermitted as moot due to his failure to comply with the
statutory requirements of Tennessee Code Annotated §§ 29-26-121 and -122 and the
statute of limitations provided by the GTLA. See Tenn. Code Ann. § 29-20-305(b).
Similarly, any other claim of “negligence” brought by Mr. Kaddoura is pretermitted as
moot due to his failure to comply with the statute of limitations provided by the GTLA.
See id. We therefore discern no error in the trial court‟s dismissal of any medical
malpractice or other tort claim within Mr. Kaddoura‟s complaint.

        We now analyze solely the gravamen of Mr. Kaddoura‟s contract claims to
ascertain whether the corresponding six-year statute of limitations applies. See Pera v.
The Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984). (“It is well settled in this state that
the gravamen of an action, rather than its designation as an action for tort or contract,
determines the applicable statute of limitations.”). Our Supreme Court has recently
clarified that a two-step approach of (1) “consider[ing] the legal basis of the claim” and
(2) “then consider[ing] the type of injuries for which damages are sought” “is the correct
framework for courts to employ when ascertaining the gravamen of a claim for the
purpose of choosing the applicable statute of limitations.” Benz-Elliott v. Barrett Enters.,
LP, ___ S.W.3d at ___, 2015 WL 294635 at *10.

       In his original complaint, Mr. Kaddoura averred in pertinent part:

              On or about April 22, 2010, Plaintiff and Defendant entered into a
       contract pursuant to which Defendant agreed to accept the sum of
       $6,720.00 for Defendant‟s services arising out of and in connection with
       Plaintiff‟s upcoming bariatric surgery. The Parties entered into this
       contract because bariatric surgery was not covered by Plaintiff‟s insurance
       policy. Said amount was paid in full by Plaintiff to Defendant prior to his
       admission as a patient.



                                             6
             Bariatric surgery was performed the morning of April 27, 2010.
      Early in the procedure the surgeon found an incarcerated periumbilical
      hernia in the abdominal wall close to the location needed for the surgery
      port, and surgically reduced the hernia to achieve access for the bariatric
      vertical sleeve mastectomy. The surgeon also repaired the hernia with
      sutures to avoid the danger of post-operative bowel obstruction.

             Plaintiff was returned to his room about noon following the April 27
      surgery. Throughout that day and the next two days, Plaintiff reported
      increasing pain, spasms, nausea, bloating, gas pain, non-productive
      coughing and retching and later vomiting, including blood. His abdomen
      became distended and reddened. Both heartbeat and blood pressure became
      markedly elevated. Nevertheless, the surgeon was not called in until just
      after midnight the morning of April 30.

             The surgeon ordered an immediate CT scan and as soon as the scan
      was completed performed a second surgery because two of the abdominal
      wall hernia sutures had been broken and the small intestine had been
      obstructed. Plaintiff was not discharged until the morning of May 2, 2010.

             Thereafter, Defendant submitted to Plaintiff‟s health insurer, Golden
      Rule Insurance Company, charges of $32,364.00. The insurer disallowed
      one $27.00 charge and after applying the usual insurance discount, issued
      its payment to Defendant in the amount of $22,187.34 on or about March 4,
      2011.

             On August 22, 2012, Defendant sued Plaintiff alleging Defendant
      owed $2,549.31, plus attorney fees and Court costs, for Defendant‟s
      services April 27 to May 2, 2010.

            Defendant‟s actions and omissions stated above constitute one or
      more of the following:
            breach of contract.
            negligence.
            money had and received.
            unjust enrichment.

(Paragraph numbering omitted.)

     Regarding the first step of the analysis, or the legal basis of the claim, Mr.
Kaddoura alleged in the complaint that Erlanger entered into a contract with him in which
                                           7
Erlanger agreed to provide “services arising out of and in connection with” Mr.
Kaddoura‟s bariatric surgery in return for the sum of $6,720.00 to be paid in advance. By
alleging that Erlanger charged additional fees beyond this agreed advance payment, Mr.
Kaddoura presented a claim with a legal basis of breach of contract.

        As step two of our analysis of the breach of contract claim, we then consider the
type of damages Mr. Kaddoura sought. Mr. Kaddoura requested “monetary damages in
the amount of $22,187.34,” the amount paid to Erlanger by Golden Rule in response to
the charges Erlanger submitted following the second procedure. Golden Rule is not a
party to this action, and it is unclear from the record whether Mr. Kaddoura was affected
financially by Golden Rule‟s payment of $22,187.34. It is apparent, however, that these
alleged damages were economic only and “flowed from the [alleged] breach of contract,”
rather than any injury to property. See Benz-Elliott, ___ S.W.3d at ___, 2015 WL 294635
at *10 (citing with approval Alexander v. Third Nat’l Bank, 915 S.W.2d 797, 799-800
(Tenn. 1996), for the proposition that the six-year statute of limitations was applicable to
a claim with a legal basis in breach of contract in which the plaintiff sought damages of
solely an economic nature).

                     B. Insufficiency of Breach of Contract Claim

         Although the trial court did not address Mr. Kaddoura‟s breach of contract claim
in its final judgment, our review of the trial court‟s dismissal with prejudice of Mr.
Kaddoura‟s entire action encompasses the dismissal of every claim brought within that
action, including the breach of contract claim. See Bowden, 27 S.W.3d at 916
(explaining that this Court reviews questions of law de novo with no presumption of
correctness); see also Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986) (holding
that an appellate court “will affirm a decree correct in result, but rendered upon different,
incomplete, or erroneous grounds.”). We stress again that in reviewing the grant of a
Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss, we must construe the
complaint liberally, presuming all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences. See Trau-Med, 71 S.W.3d at 696 (explaining
also that a complaint should not be dismissed for failure to state a claim unless it appears
that the plaintiff can prove no set of facts in support of his claim that would warrant
relief).

      In order to prove a breach of contract, Mr. Kaddoura must be able to present an
enforceable contract. See Staubach Retail Servs.-Se., LLC, 160 S.W.3d 521, 524 (Tenn.
2005). As our Supreme Court explained in Staubach:

             A contract “must result from a meeting of the minds of the parties in
       mutual assent to the terms, must be based upon a sufficient consideration,
                                             8
       free from fraud or undue influence, not against public policy and
       sufficiently definite to be enforced.” Doe v. HCA Health Servs. of Tenn.,
       Inc., 46 S.W.3d 191, 196 (Tenn. 2001) (citations omitted). In determining
       mutuality of assent, courts must apply an objective standard based upon the
       parties‟ manifestations. T.R. Mills Contractors, Inc. v. WRH Enters., LLC,
       93 S.W.3d 861, 866 (Tenn. Ct. App. 2002).

Id.

        In his complaint, Mr. Kaddoura averred that the parties “entered into a contract” in
which he paid the consideration of $6,720.00 in return for Erlanger‟s “services arising out
of and in connection with [Mr. Kaddoura‟s] upcoming bariatric surgery.” He stated that
bariatric surgery “was performed the morning of April 27, 2010.” He then described,
over the course of three paragraphs, the physical complications he experienced following
the initial surgery and the additional treatment, including a second surgical procedure,
required to resolve the complications. Presuming all factual allegations to be true, as we
must, we find no allegation in Mr. Kaddoura‟s complaint that Erlanger had entered into a
contract in which it agreed that all possible complications and resultant treatment Mr.
Kaddoura might need subsequent to bariatric surgery would be covered by his advance
payment. In addition, the complaint stated that the parties “entered into this contract
because bariatric surgery was not covered by [Mr. Kaddoura‟s] insurance policy.” As the
complaint itself avers, Golden Rule paid a substantial percentage of the additional
charges incurred by the need for a second surgery and additional treatment, indicating by
reason of the facts presented in the complaint that Golden Rule regarded Mr. Kaddoura‟s
subsequent procedure and treatment as outside the original “uncovered” parameters of the
bariatric surgery. Moreover, Mr. Kaddoura presented no written contract or alleged
contractual provision in support of his allegation that Erlanger had agreed that all
subsequent treatment would be covered by the advance payment. We therefore conclude
that Mr. Kaddoura failed to allege facts sufficient to state a breach of an enforceable
contract claim upon which relief could be granted.

                       C. Insufficiency of Quasi-Contract Claim

        Mr. Kaddoura also asserts that the facts averred in his complaint constitute claims
for relief based upon quasi-contractual theories of unjust enrichment and money had and
received. We disagree.

      “Both unjust enrichment and money had and received are essentially the same
cause of action, being both quasi-contractual actions.” Bennett v. VISA U.S.A. Inc., 198
S.W.3d 747, 755 (Tenn. Ct. App. 2006). Under the theory of unjust enrichment, “courts
may impose a contractual relationship between the parties, regardless of their assent.”
                                             9
Markow v. Pollock, No. M2008-01720-COA-R3-CV, 2009 WL 4980264 at *4 (Tenn. Ct.
App. Dec. 22, 2009) (citing Bennett, 198 S.W.3d at 755). As our Supreme Court has
explained:

              The elements of an unjust enrichment claim are: 1) “[a] benefit
       conferred upon the defendant by the plaintiff”; 2) “appreciation by the
       defendant of such benefit”; and 3) “acceptance of such benefit under such
       circumstances that it would be inequitable for him to retain the benefit
       without payment of the value thereof.” The most significant requirement of
       an unjust enrichment claim is that the benefit to the defendant be unjust.
       The plaintiff must further demonstrate that he or she has exhausted all
       remedies against the person with whom the plaintiff enjoyed privity of
       contract.

Freeman Indus. v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005) (quoting
Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 155 (1966)) (other internal citations omitted).

       In the instant action, Erlanger received payment from Mr. Kaddoura‟s insurance
company in return for services rendered, including a second surgical procedure and
additional treatment provided to Mr. Kaddoura. We determine that Mr. Kaddoura‟s
complaint fails to allege an unjust benefit to Erlanger and thus fails to allege a viable
claim for unjust enrichment or money had and received. See, e.g., Song & Song Corp. v.
Fine Art Constr. Co., LLC, No. W2011-01708-COA-R3-CV, 2012 WL 2146313 at *10
(Tenn. Ct. App. June 14, 2012) (affirming the trial court‟s denial of the plaintiff‟s unjust
enrichment claim for “overpayment” on a construction contract because the additional
payment was made in return for additional work performed); cf. Markow v. Pollock, No.
M2008-01720-COA-R3-CV, 2009 WL 4980264 at *11 (Tenn. Ct. App. Dec. 22, 2009)
(affirming the trial court‟s award of the value of upgraded printer equipment because
“[u]nder the principles of unjust enrichment, it would be inequitable for [the defendant]
to reap the benefit of the upgraded sheeter without paying for it.”).

       In summary, although we conclude that the trial court erred by failing to analyze a
separate claim for breach of contract averred by Mr. Kaddoura‟s complaint, we further
conclude that the trial court did not err by granting Erlanger‟s Rule 12.02(6) motion to
dismiss the complaint, albeit on an additional ground of failure to state a breach of
contract claim upon which relief could be granted. See Cont’l Cas. Co., 720 S.W.2d at
50 (“Suffice it to say that this Court will affirm a decree correct in result, but rendered
upon different, incomplete, or erroneous grounds.”). We further conclude, however, that
although the trial court entered the dismissal order with prejudice, the finding of
prejudice does not apply to the breach of contract claim.

                                            10
                       V. Grant of Motion to Amend Complaint

       On appeal, Erlanger raises the issue of whether the trial court erred by
simultaneously denying Mr. Kaddoura‟s motion to alter or amend the dismissal order and
granting Mr. Kaddoura‟s motion to amend the complaint. Mr. Kaddoura filed no reply
brief and therefore did not respond to Erlanger‟s argument regarding this issue. We
determine that the dismissal of the complaint and leave to amend the complaint
procedurally cannot stand together. See Lee v. State Volunteer Mut. Ins. Co., Inc., No.
E2002-03127-COA-R3-CV, 2005 WL 123492 at *11-12 (Tenn. Ct. App. Jan. 21, 2005)
(“[O]nce a judgment dismissing a case has been entered, the plaintiff cannot seek to
amend its complaint without first convincing the trial court to set aside its dismissal
pursuant to Tenn. R. Civ. P. 59 or 60.”). Having affirmed the trial court‟s dismissal of
Mr. Kaddoura‟s complaint, we conclude that the court‟s grant of the motion to amend the
complaint cannot stand. We therefore vacate the portion of the trial court‟s order
granting Mr. Kaddoura leave to amend the complaint.

       We recognize that because we have dismissed the breach of contract claim without
prejudice, Mr. Kaddoura could file a new action alleging breach of contract, provided that
he did so within the six-year statute of limitations. See Tenn. R. Civ. P. 3
(Commencement of Action). This result is in keeping with the trial court‟s intent in
granting Mr. Kaddoura‟s motion to amend his complaint. See Boyd v. Prime Focus, Inc.,
83 S.W.3d 761, 766 (Tenn. Ct. App. 2001) (“It is within the discretion of the trial court to
specify that a claim has been dismissed without prejudice . . . .”). However, we
emphasize our previous determination that as Mr. Kaddoura has presented the breach of
contract claim in the instant complaint, he has failed to state a claim upon which relief
can be granted. See, e.g., Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV,
2013 WL 1122803 at *3-4 (Tenn. Ct. App. Mar. 19, 2013) (rejecting the appellants‟
contention that a dismissal without prejudice “conveyed an automatic right to „reinstate
the pending litigation[,]‟ notwithstanding any issues related to the Second Complaint‟s
sufficiency or timeliness.”).

                                     VI. Conclusion

       The decision of the trial court is vacated in part and affirmed in part as modified.
We vacate the trial court‟s grant of Mr. Kaddoura‟s motion to amend the complaint. We
modify the trial court‟s dismissal of Mr. Kaddoura‟s complaint to state that the dismissal
of his breach of contract claim is without prejudice. We affirm the trial court‟s judgment
in all other respects. Costs on appeal are assessed equally to the appellant, Bashar F.
Kaddoura, and the appellee, Chattanooga-Hamilton County Hospital Authority d/b/a
Erlanger Medical Center. This case is remanded to the trial court, pursuant to applicable
law, for modification of the trial court‟s judgment as described herein, enforcement of the
                                            11
trial court‟s judgment dismissing Mr. Kaddoura‟s complaint, and collection of costs
assessed below.



                                             _________________________________
                                             THOMAS R. FRIERSON, II, JUDGE




                                        12
