                                                                                           06/26/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 22, 2019 Session

     G. G. EX REL. JACKIE JOHNSON ET AL. v. BOYD-BUCHANAN
                          SCHOOL ET AL.

                Appeal from the Chancery Court for Hamilton County
                    No. 17-0201 Jeffrey M. Atherton, Chancellor
                      ___________________________________

                           No. E2018-01912-COA-R9-CV
                       ___________________________________



                                DISSENTING OPINION

John W. McClarty, J., dissenting.

             The majority holds that the trial court abused its discretion by entering an
order that would allow the plaintiffs to discover information that is irrelevant to their
breach of contract claim.

       The breach of contract claim provides as follows:

              Petitioners allege that all the Defendants, including the Board
              of Directors, by their actions, are guilty of Breach of Contract
              to educate G G [sic]. They have expelled him without cause
              for the expulsion (Except to alleviate the cost the financial aid
              to a student) and acting differently toward him based upon his
              minority race and gender; . . . His treatment, under current
              information and belief, is not in legal parity with that of other
              students similarly situated.

              These actions also are in Breach of the School Handbook,
              Page 20, p. [sic].

The majority notes that the plaintiffs appear to be asserting that the handbook “constitutes
a written contract ‘to educate’ the child at issue and that the school ‘breached this alleged
contract because G.G.’s conduct did not constitute sexual harassment under that policy
because his conduct did not occur ‘on or off school premises at [a] school-sponsored
activit[y]’ and was not ‘unwanted or unwelcome.’”

       During discovery, the school sought an order protecting it from having to comply
with certain discovery requests that it argued were not relevant to the breach of contract
claim and invaded the privacy of the non-parties. The trial court granted some requests
sought by school, but denied others. As noted by the majority, the trial court held

              The school was not required to answer Interrogatory No. 9 or
              Request Nos. 1, 3, 4, and 5. As to Interrogatory No. 5, the
              order provided that the school was only required to disclose:

              The (a) first initial and last initial of the student; (b) age and
              grade level; (c) non-academic charges asserted; (d) discipline
              issued; (e) review engaged in; (f) by whom at Boyd-
              Buchanan; and (g) the results of the review for any non-
              academic disciplinary actions taken by Boyd-Buchanan
              Middle School within the prior three years (i.e. August 2014
              to July 2017).

              The court’s order imposed these same limitations on
              Interrogatories Nos. 7, 8, 10, 11, and 12. The order still
              required the school to identify the number of students who
              were expelled for academic reasons. The school was also
              required to disclose any conditions that were required for
              reenrollment. Interrogatory No. 11 was limited to “students
              who applied for reenrollment but were denied.” Interrogatory
              No. 12 was limited to “students who were authorized for
              reenrollment but choose [sic] not to do so.” Request No. 2
              was limited “to employment files of Jennifer Warnack that
              reflect policies on how the School’s handbook should be
              enforced in regards to student discipline.” Request No. 6 was
              limited “to employment files of Jill Hartness that reflect
              policies on how the School’s behavioral code should be
              enforced in regards to student discipline.”


The plaintiffs assert that “a pattern [of selective enforcement] or lack of same can only be
proven by the records in the possession of [the school.]” The majority contends that the
plaintiffs have failed to explain why any of the requested material is relevant to the merits
of a breach of contract claim. They note that a pattern of selective enforcement might
support a discrimination claim, but it is unclear what type of “pattern” would support a
breach of contract claim. The majority relies on Steinkerchner v. Provident Life &
Accident Ins. Co., which held that an insurer’s “conduct regarding the unique insurance
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claims of others is not relevant to whether it properly handled the claim at issue.” No.
01A01-9910-CH-00039, 1999 WL 734545, at *3 (Tenn. Ct. App. Sept. 22, 1999). The
majority notes further that the plaintiffs have failed to explain why discovery of a pattern
of selective enforcement is “reasonably calculated to lead to the discovery of admissible
evidence.” See Tenn. R. Civ. P. 26.02(1). The majority observes that

              [t]he court’s order does not explain why that parol evidence is
              relevant to plaintiffs’ breach of contract claim or how it could
              lead to the discovery of other admissible evidence. . . . [W]e
              fail to see how any of the information requested by plaintiffs
              is relevant to their breach of contract claim. Accordingly, we
              hold that the trial court abused its discretion by entering a
              protective order that ‘reache[d] an illogical conclusion’ and
              ‘employ[ed] reasoning that cause[d] an injustice’ to the
              school.

      A breach of contract action requires claimants to prove “the existence of a valid
and enforceable contract, nonperformance amounting to a breach of the contract, and
damages caused by the breach of the contract.” ARC LifeMed, Inc. v. AMC–Tenn., Inc.,
183 S.W.3d 1, 26 (Tenn.Ct.App.2005).

        We have held that a handbook can create “a contractual right to continued
enrollment” at a school. Anderson v. Stanton, No. E2009-01081-COA-R3-CV, 2010 WL
2106218, at *6 (Tenn. Ct. App. May 26, 2010) (finding contractual right to continued
enrollment resulted in property interest in such enrollment that triggered due process
protections). That the relationship between a school and its students has a strong, albeit
flexible, contractual flavor is an idea well accepted in modern case law. See, e.g., Mangla
v. Brown University, 135 F.3d 80, 83 (1st Cir.1998). So too, is the proposition that a
student handbook can be a source of the terms defining the reciprocal rights and
obligations of a school and its students. See Corso v. Creighton University, 731 F.2d 529,
532–533 (8th Cir.1984). In my opinion, the discovery sought may provide information
related to actions amounting to a breach, such as failure to abide by the handbook
regarding hearing or expulsion procedures or to provide fundamental fairness. I find the
restrictions placed on discovery by the trial judge were sufficient and adequately comply
with the law.

       Accordingly, I respectfully dissent.

                                                    _________________________________
                                                    JOHN W. MCCLARTY, JUDGE



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