                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                        April 17, 2012 Session

        RONNIE SUMMEY v. MONROE COUNTY DEPARTMENT OF
                       EDUCATION, ET AL.

                    Appeal from the Chancery Court for Monroe County
                        No. 16082     Jerri S. Bryant, Chancellor


                    No. E2011-01400-COA-R3-CV-FILED-MAY 29, 2012


This appeal arises from an employment dispute between Ronnie Summey (“Summey”) and
the Monroe County Board of Education (“the Board”). Summey worked as head football
coach and as a teacher at Sequoyah High School (“Sequoyah”) in Monroe County. Summey
sued the Board1 in the Chancery Court for Monroe County (“the Trial Court”), alleging,
among other things, breach of contract and violation of various constitutional rights
stemming from when Summey was relieved as head coach and offered a new assignment in
the school system. The Trial Court ruled in favor of the Board, finding that it was Summey
who had breached the contract when he refused to accept the new assignment. Summey
appeals. We affirm the judgment of the Trial Court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                  Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J., and C HARLES D . S USANO, J R., J., joined.

Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Ronnie Summey.

Arthur F. Knight, III, Knoxville, Tennessee, for the appellee, Monroe County Board of
Education.




        1
          A host of individuals were named in the original suit, but only the Board is involved in this appeal.
While the Appellee is named in the complaint as the Monroe County Department of Education, the Appellee
identifies itself in its brief as the Monroe County Board of Education. We will identify the Appellee by the
name it gives itself, the Monroe County Board of Education.
                                         OPINION

                                        Background

              In October 2008, Summey sued the Board and numerous individuals for
$2,000,000. Summey, previously employed as head football coach and as a teacher at
Sequoyah, alleged that the Board had breached its contract with him when it allegedly
terminated his employment. The defendants filed an answer denying Summey’s allegations.
The individual defendants filed a motion to dismiss. The Board and the individual
defendants also moved to dismiss Summey’s claims of constitutional violations.
Additionally, the Board filed a motion for summary judgment. The Trial Court dismissed all
the claims against the individual defendants and also dismissed Summey’s constitutional
claims. The case then proceeded to trial on the breach of contract claim related to the alleged
termination of Summey’s employment.

               Trial was held in June 2011. Summey testified first. Summey had taught at
Maryville High School for 24 years. In 2006, Summey applied for the position of head
football coach at Sequoyah and was hired. Summey, through his application, specifically
stated that he was looking to be hired for a position at Sequoyah. A part-time non-coaching
position was created for Summey so that Summey could become head football coach. Despite
the apparent dual nature of his role, Summey testified that he was going to work at Sequoyah
primarily in order to coach. In March 2007, Summey signed a contract with the Monroe
County School System. James M. Millsaps, Director of Schools, executed the contract for
the Monroe County School System. The contract specified that Summey was to serve as a
teacher “employed for up to 120 days during a 12 month period – beginning 3/12/07” at
Sequoyah. Summey already had signed an addendum in February 2007 providing that he
would serve as head football coach as well as a teacher at Sequoyah.

              Summey resigned from teaching at Maryville High School in 2007 and began
drawing retirement from the state for his years of school service. Subsequently, Summey
began work as head football coach at Sequoyah. Summey was placed in an office near the
Principal of Sequoyah but was assigned no classroom duties. Summey testified that he never
received a written job description regarding his non-coaching role.

               Controversy arose when Summey began inspecting classrooms. Summey
stated that he saw children who wore pajamas to school or children who slept in class. On
occasion, Summey removed sleeping children from classrooms. In April 2007, in the wake
of negative reaction from the central office, Summey was reassigned to handle study hall.
Meanwhile, Summey continued in his role as head football coach. Sequoyah won two games
as part of a losing football season under Summey’s coaching tenure.

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             In March 2008, Summey’s first one-year contract expired. Summey signed a
new one-year contract for 120 days of service that specified he was to be a teacher, although
a “coaching supplement” was included with the salary information. The contract stated, in
part:

       The employee agrees to work in any building or department or perform such
       duties, which may be assigned or required by the Director of Schools. The
       Director of Schools may temporarily suspend this contract when deemed
       necessary, pending investigation or final disposition before an appropriate
       hearing authority.

       It is further agreed between the parties that this contract shall be effective and
       binding for the entire time above mentioned. In case of resignation, the
       employee agrees to give the Director of Schools thirty (30) days notice to
       continue in service until such time has transpired; provided that earlier
       termination may be made by mutual written consent of both parties.

       Nothing in this contract shall be construed to provide future or continued
       employment unless specifically agreed to by the parties in a separate
       agreement.

In May 2008, Summey left the state to attend a funeral. When Summey returned, he was
summoned to see Principal Moser (“Moser”). Moser told Summey that he either could resign
as head football coach or be relieved from that post.

              Summey then requested a meeting with the new Director of Schools, Michael
Lowry (“Lowry”). Summey testified that Lowry told him that Moser had no right no fire
him, and that he would offer Summey a position elsewhere in the system. Summey told
Lowry “I considered myself fired.” Summey stated that Lowry told him he was, in fact, not
fired. Lowry later offered Summey a job as P.E. teacher at Vonore Middle School for the
same rate of pay minus the coach’s supplement. This arrangement would permit Summey to
complete his contract plus have an additional twenty-five working days for which he would
be paid. Summey did not accept the new role.

             Lowry, Director of Schools, testified. Lowry testified that Summey never met
with Lowry for scheduled additional discussions on the matter after the meeting in which
Lowry told him he was not fired. Lowry testified:




                                              -3-
       Q:     Mr. Lowry, I’m not sure if you answered this or were allowed to answer
              this. Did Mr. Summey give you any indication in that May 27, 2008
              meeting that he would accept the position other than Sequoyah High as
              the football coach?

       A:     No, sir. He explicitly said that he was not interested in any other
              position, even though I did tell him that I would give him a chance to
              work and complete his contract at another school.

       Q:     Okay. And he left your office.

       A:     Yes, sir.

       Q:     Did you have an impression as to what Mr. Summey intended to do
              with regard to any such transfer after he left your office?

       A:     My feeling when he left was that he was going to quit because he didn’t
              indicate that he was interested in working, continue working in any
              capacity with the school system.

Lowry stated that he did not fire Summey, but that Summey simply failed thereafter to show
up for work and thus he was not paid for the balance of his contract.

              Sandra Raper (“Ms. Raper”), personnel clerk and secretary in the Director of
School’s office, testified. Ms. Raper sat in on and took notes in the meeting between
Summey and Lowry. Ms. Raper testified that Lowry told Summey he would find him
another position in the school system but Summey subsequently refused that offer. On cross-
examination, Ms. Raper affirmed that “the decision to fire [Summey] as coach had already
been made” before Summey met Lowry, and that Lowry did not offer a specific new position
to Summey at their meeting.

              Sonya Lynn (“Lynn”), a school board member, testified. Lynn was on the
school board when Summey was hired. Lynn stated that no new position had been created
for Summey. Lynn testified that her investigation into the matter consisted, in part, of
examining yearbooks. Lynn, however, acknowledged that she had her own lawsuit pending
against the Board at the time of trial.

              Debra Tipton (“Tipton”), Principal of Vonore Middle School, testified as well.
Tipton stated that she had requested a P.E. teacher in the past. Tipton testified that Lowry
contacted her about having Summey fill that role. Tipton was in favor of this move. Tipton

                                            -4-
stated that Summey never contacted her, and that she was still looking for a P.E. teacher at
the time of trial. On cross-examination, Tipton acknowledged that the school board had not
specifically created a new position for her to fill. Tipton also acknowledged that the P.E.
teacher position that Summey was offered still had not been filled.

              Gina Gray (“Gray”), “administrative assistant, personnel coordinator” with the
Monroe County School System, testified. Gray testified that, at Lowry’s request, two
additional meetings were arranged with Summey. Summey failed to attend these meetings.
On cross-examination, Gray acknowledged that she was not aware of any vacancy advertised
for a job at Vonore Middle School.

          After the trial, the Trial Court entered its order, which incorporated its
Memorandum Opinion. The Memorandum Opinion stated:

              All right, folks. I’ve heard the facts in this case, viewed all of the
       witnesses, weighed their individual credibility as well as the weight of the
       testimony.

              This case is governed by the statutes of the State of Tennessee, the
       School Board’s policies and procedures, and the contract that was entered into
       and signed by the parties in this case.

               The contract provides that the employee agrees to work in any building
       or department or perform such duty as may be assigned or required by the
       director of schools. Both contracts have that clause in it. The second contract
       was without an addendum concerning the coaching position, described the
       plaintiff in this case as a teacher.

               The plaintiff was relieved of his coaching duties by the principal, as
       was the principal’s power. The plaintiff was no longer assigned as a coach as
       of May of 2008. He was told that he would be kept on for the balance of his
       contract as a teacher and he refused. He was told that the principal did not
       have the power and he admitted that the principal did not have the power to
       fire him, and the principal, I find, did not fire him, he merely took away his
       coaching duties. The director of schools then had the authority to assign the
       teacher to a different position which he did, and this was refused. It was
       refused by the plaintiff. He stated that he did not want to have any other job
       other than to be the high school coach for which he had been originally hired.
       At this point the Court finds that that created a breach of contract on behalf of
       the plaintiff.

                                              -5-
               In order to make the situation clear the director of schools attempted to
       notify the plaintiff of his assignment or transfer to another position and the
       plaintiff never reported for work, and, in fact, he stated that he was leaving and
       would not look back.

             The Court finds that for these reasons the plaintiff has failed to carry his
       burden of proof on any of his claims in this matter and, based on these facts,
       the Court finds this case should be dismissed.

Summey appeals.

                                          Discussion

               We restate the issues raised on appeal as follows: 1) whether the Trial Court
erred in finding that the Board did not breach its contract with Summey; and 2) whether the
Trial Court erred in not finding Summey’s transfer to be unlawful.

               Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).

               We first address whether the Trial Court erred in finding that the Board did not
breach its contract with Summey. As our Supreme Court has instructed with regard to
contract interpretation:

               “The cardinal rule for interpretation of contracts is to ascertain the
       intention of the parties and to give effect to that intention, consistent with legal
       principles.” Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521
       S.W.2d 578, 580 (Tenn. 1975); see also Christenberry, 160 S.W.3d at 494. If
       the language of the contract is clear and unambiguous, the literal meaning
       controls the outcome of the dispute. Planters Gin Co. v. Fed. Compress &
       Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002). In such a case, the contract
       is interpreted according to its plain terms as written, and the language used is
       taken in its “plain, ordinary, and popular sense.” Bob Pearsall Motors, Inc.,
       521 S.W.2d at 580; Planters Gin Co., 78 S.W.3d at 890. The interpretation
       should be one that gives reasonable meaning to all of the provisions of the

                                               -6-
       agreement, without rendering portions of it neutralized or without effect. See
       Davidson v. Davidson, 916 S.W.2d 918 922-23 (Tenn. Ct. App. 1995). The
       entire written agreement must be considered. D. & E. Const. Co. v. Robert J.
       Denley Co., 38 S.W.3d 513, 518-19 (Tenn. 2001).

              In construing a contract, the entire contract should be considered
              in determining the meaning of any or all of its parts. It is the
              universal rule that a contract must be viewed from beginning to
              end and all its terms must pass in review, for one clause may
              modify, limit or illuminate another.

       Cocke County Bd. of Highway Comm'rs v. Newport Utils. Bd., 690 S.W.2d
       231, 237 (Tenn. 1985) (internal citations omitted).

               However, on occasion, a contractual provision may be susceptible to
       more than one reasonable interpretation, rendering the terms of the contract
       ambiguous. Planters Gin. Co., 78 S.W.3d at 890. “Ambiguity, however, does
       not arise in a contract merely because the parties may differ as to
       interpretations of certain of its provisions. A contract is ambiguous only when
       it is of uncertain meaning and may fairly be understood in more ways than
       one.” Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001) (internal
       quotation marks and citations omitted). The court will not use a strained
       construction of the language to find an ambiguity where none exists.
       Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975).

Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 703-04 (Tenn. 2008).

              Initially, we briefly recount Summey’s relevant employment history. Summey
signed a one-year contract which began in March 2007. An addendum to this contract
specified that Summey would serve as head football coach at Sequoyah. In March 2008,
Summey signed a similar contract for another one-year term in the Monroe County School
System. For the second contract, however, there was no addendum.

               Summey’s arguments with regard to the contract seem based on two main
points. First, Summey is adamant that he only signed up to be head football coach and a
teacher at Sequoyah. Second, Summey alleges that Sequoyah’s behavior in keeping him in
the coach’s position for a period after the expiration of the first contract with the addendum
suggests that the addendum remained in force, or, alternatively, that some sort of implied
contractual relationship existed.



                                             -7-
                We disagree with Summey’s arguments on this issue. The clear language of
both the 2007 and 2008 contracts stated that Summey could be assigned to other duties.
Furthermore, we note that the 2008 contract lacked any coach-specific addendum as had the
first contract. Summey’s employment relationship with the school system was based on these
one-year contracts.

               The Trial Court made credibility determinations, and we defer to the Trial
Court’s credibility determinations given the record before us. The evidence in the record
does not preponderate against any of the Trial Court’s findings. While we acknowledge
Summey’s assertion that his primary expectation was to be head football coach at Sequoyah,
we cannot conclude from the evidence that somehow Summey was indefinitely entitled to
remain the head football coach at Sequoyah on the basis of alleged ambiguity regarding the
2007 addendum. On the contrary, we find, as did the Trial Court, that Summey breached his
contract when he refused to accept a new assignment. The evidence does not preponderate
against the Trial Court’s findings that although Summey was relieved of his coaching duties
by Moser, Summey never was fired but instead refused any assignment to any position other
than that of head football coach.

             We next address whether the Trial Court erred in declining to hold that
Summey’s transfer was unlawful. Summey points to Tenn. Code Ann. § 49-2-301 (b)(1)
(GG), which governs dismissal of non-tenured school employees. The statute requires,
among other things, notice of the charge, a hearing opportunity, while also providing for an
appeals process. Tenn. Code Ann. § 49-2-301 (b)(1) (GG) (Supp. 2011).

              We, however, regard what happened to Summey as an attempted transfer,
governed by Tenn. Code Ann. § 49-2-301 (b)(1) (EE), which provides for the director of
schools the duty to: “Within the approved budget and consistent with existing state laws and
board policies, employ, transfer, suspend, non-renew and dismiss all personnel, licensed or
otherwise, except as provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title;” Tenn.
Code Ann. § 49-2-301 (b)(1) (EE) (Supp. 2011).

              We previously have addressed the transfer of coaches to teaching duty:

               The decision to assign a teacher with coaching responsibilities to a
       full-time teaching position generally is considered a transfer rather than a
       dismissal or suspension. White v. Banks, 614 S.W.2d 331, 334 (Tenn. 1981).
       The statutes afford broad discretion to the director of schools to transfer
       teachers within the local school system. See Lawrence County, 244 S.W.3d
       at 314; Metro. Nashville, 2009 WL 837884, at *4 (quoting Mitchell v. Garrett,
       510 S.W.2d 894, 898 (Tenn. 1974)). A director of school's decision to transfer

                                              -8-
        a teacher must be “ ‘made in good faith, in accordance with the criterion set
        forth in the statute—efficient operation of the school system.’ ” Id. (quoting
        McKenna v. Sumner County Bd. of Educ., 574 S.W.2d 527, 534 (Tenn. 1978)).
        A director's decision to transfer a teacher is afforded a presumption of good
        faith, and the party challenging the decision carries the burden to establish, by
        a preponderance of the evidence, that the decision was arbitrary, capricious or
        “improperly motivated.” Lawrence County, 244 S.W.3d at 315. “The
        determinative question is whether the transfer could be classified as for the
        ‘efficient operation of the school system.’ ” Id.

Franklin County Bd. v. Crabtree2 , 337 S.W.3d 808, 814 (Tenn. Ct. App. 2010).

              The evidence in the record does not preponderate against any of the Trial
Court’s findings. After a careful review of the record, we conclude, as did the Trial Court,
that the Board’s attempt to transfer Summey was lawful. Lowry acted within his power as
Director of Schools, and, in accordance with the contract, to attempt to transfer Summey into
another assignment. Summey refused to accept the reassignment as it was his position that
he would be employed as the head football coach at Sequoyah or not employed by the Board
at all.

              Summey also points to Tenn. Code Ann. § 49-5-510, which permits the
Director of Schools to transfer a teacher within the school system so long as “transfers shall
be acted upon in accordance with board policy.” Tenn. Code Ann. § 49-5-510 (Supp. 2011).
Summey objects to three aspects of the attempted transfer that allegedly affronted law or
policy: 1) missing the May 15 deadline for reassignment as required by the Monroe County
Schools policy; 2) Lowry’s failure to put his reasons for the transfer in writing also as
required by policy; and, 3) violating the provisions of the employment contract with
Summey.

              Respectfully, we find Summey’s objections to be without merit. As we already
have discussed, the Board did not violate the contract with Summey. The reverse occurred.
As to the May 15 deadline for reassignment, we hold that it is not applicable to these
circumstances, nor was Summey prejudiced by a lack of written notice. Indeed, Summey
made it crystal clear that he was not going to accept any position other than head football
coach at Sequoyah.



        2
         Crabtree has certain distinguishing facts from the instant appeal, including the fact that it involves
an education association as a party in the context of a collective bargaining agreement. Nevertheless, we
regard the analysis as sound and pertinent.

                                                     -9-
              We find no reversible error by the Trial Court. We affirm the judgment of the
Trial Court in its entirety.




                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Ronnie Summey, and his surety, if any.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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