        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                 AT JACKSON
            _______________________________________________________

                                           )
SAM POSEY, DANNY TODD, BILLY               ) Shelby County Chancery Court
CHITWOOD, and JIMMY PORTER,                ) No. 102072-1 R.D.
                                           )
   Plaintiffs/Appellants.                  )
                                           )
VS.                                        ) C. A. NO. 02A01-9603-CH-00058
                                           )
CITY OF MEMPHIS, TENNESSEE,                )
DIVISION OF FIRE SERVICES OF
MEMPHIS, TENNESSEE, DR. W. W.
HERENTON, Mayor, WESTELLE
                                           )
                                           )
                                           )
                                                       FILED
                                                    Jan. 31, 1997
FLOREZ, Director of the Division of        )
Personnel, and CHARLES SMITH,              )      Cecil Crowson, Jr.
Director of the Division of Fire Services, )        Appellate Court Clerk
                                           )
   Defendants/Appellees.                   )
                                           )
______________________________________________________________________________

From the Chancery Court of Shelby County at Memphis.
Honorable Neal Small, Chancellor



Mark Allen,
Florence M. Johnson,
AGEE, ALLEN, GODWIN, MORRIS & LAURENZI, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.



Louis P. Britt, III,
Charles V. Holmes,
Robert E. Teutsch, Jr.,
McKNIGHT, HUDSON, LEWIS & HENDERSON, PLLC, Memphis, Tennessee
Attorneys for Defendants/Appellees.



OPINION FILED:

VACATED AND REMANDED


                                         FARMER, J.



CRAWFORD, P.J., W.S. : (Concurs)
TOMLIN, Sr. J. : (Concurs)
               The appellants to this action are either current or retired firemen for the Division of

Fire Services of Memphis, Tennessee (Division).1 They appeal from a judgment of the trial court

in favor of Appellees, City of Memphis, Tennessee (City), the Division, Dr. W. W. Herenton, Mayor,

Westelle Florez, Director of the Division of Personnel, and Charles Smith, Director of the Division,

on their action seeking declaratory and injunctive relief regarding the appellees’ method of

computing pension benefits for those firefighters employed by the City for 30 or more years. After

review of the record, we vacate the judgment of the trial court and remand this cause for further

proceedings consistent with this opinion. We set forth our reasons below.



               The complaint alleges that Appellees violated the City’s “Pension Ordinance” of the

Code of Ordinances, City of Memphis, as amended December 1989, when calculating the pensions

of its thirty year fire service employees upon the salary of the former rank of “Captain” as opposed

to that of “Battalion Commander.” The ordinance, codified at Section 25-1(4)(a)(III), reads:



                       For any Police Officer or Firefighter credited with thirty (30)
               or more Years of Service, and eligible for automatic promotion to
               captain or comparable rank in the Police or Fire Divisions of the City
               under Charter Section 67, his average monthly compensation shall be
               the current monthly base compensation of a captain or comparable
               rank in the Police or Fire Divisions of the City as of the date of his
               retirement, plus any shift premium pay, hazardous premium pay,
               holiday pay, longevity pay and incentive pay, excluding overtime pay,
               earned during the immediately preceding twelve (12) months.



Section 67 of the City Charter, as stated in the complaint, reads:



               Section 67. Automatic promotion to captain after thirty (30) years.

                      Any fireman or policeman, who shall have served the City of
               Memphis for a period of thirty (30) years, either continuously or
               intermittently, shall, at the expiration of said thirty (30) years,
               automatically be promoted to the rank of captain of the fire division
               or captain of the police division, with all of the salary, emoluments
               and other privileges of said rank; and, upon the retirement of such
               firemen or policemen, he shall receive a pension as captain.



       1
        The record establishes that Appellant Sam Posey is a fireman with 30 years of service
with the Division; Appellants Danny Todd and Billy Chitwood have been employed by the
Division for 20 and 27 years respectively, both currently serving in the rank of Lieutenant; and
Appellant Jimmy Porter is a former fireman with the Division, retiring in 1990 after over 30
years of service.
                       Automatic promotion to the rank of captain in either the fire
               services division or the police division as set out in the above
               paragraph shall not apply to any person employed by the City after the
               date of January 31, 1979. (Priv. Acts 1927, Ch. 521; Ord. No. 2725,
               §1, 5-23-78).




               It is further alleged:



                       In May of 1988, the . . . [Division] underwent a personnel
               reorganization. As a result of this reorganization, the City eliminated
               the position of captain in the [Division], and created the position of
               Battalion Commander.

                       Those persons who, prior to May of 1988, held the position of
               Captain, were either reclassified as Battalion Commanders or were
               retired. Therefore, at the time of passage of §25-1(4)(a)III . . . , the
               position of Captain in the Fire Services Division had been eliminated.

                      As a result of the reorganization . . . the position of Battalion
               Commander became a “comparable rank” to that of Captain within
               the meaning of §25-1(4)(a)(III) . . . .

                        Rather than pay retiring thirty (30) year firemen benefits based
               upon rank comparable to that of the non-existent captain’s position,
               the city created an imaginary captain’s position and retired officers at
               this artificially created salary scale.

                       This imaginary captain’s position was created to and had the
               effect of avoiding compliance with the dictates of §25-1(4)(a)(III)
               which mandated that retirement benefits be figured on the pay of a
               person holding a rank comparable to that of a captain.



               Appellants also allege a violation of their equal protection rights afforded under the

Fourteenth Amendment. It is averred that in June 1992, the City entered into a settlement agreement

with certain police officers which provided that upon a police officer’s retirement after thirty years

of service, he/she would be entitled to the benefits and privileges of the rank of “Commander.”

Appellants allege that pursuant to such agreement, the City paid certain retiring police officers

retroactive pay and benefits. It is further alleged that by virtue of the agreement, the position of

police commander became a “comparable rank” to that of a police captain within the meaning of the

ordinance. Thus, it is asserted that Appellees have violated Appellants’ equal protection rights

inasmuch as thirty year policemen are paid “those benefits required by § 25-1(4)(a)(III),” but not

thirty year firemen.
                The appellees, for answer, admitted that a reorganization of the management structure

of the City’s fire department had taken place in 1988, effectively eliminating the position of captain,

and that the City had entered into a settlement agreement, but denied that such agreement provided

a basis upon which Appellants could institute their action. Appellees specifically averred that

“Police Captain is a separate and distinct rank within the Memphis Police Department.” Appellees

denied all remaining material allegations.



                Appellees moved for summary judgment, asserting that “firefighters having 30 or

more years of service, and eligible for automatic promotion to the rank of captain . . . are not entitled

pursuant to [the pension ordinance] to have their pensions based upon the base compensation of a

battalion commander. . . .” The affidavit of Charles Smith, submitted in support thereof, details the

reorganization process and states, in effect, that the position of battalion commander is not a

“comparable rank” to that of captain. The affidavit confirms that since the reorganization and

elimination of the position of captain, the Division has maintained a captain’s salary on its payroll

for the purpose of calculating those pensions due firefighters with thirty or more years of service and

eligible for automatic promotion under Section 67. Appellants responded by filing the affidavit of

Mr. Chitwood which, in part, addresses the claim of an equal protection violation by noting the

settlement agreement herein referenced. Chitwood states, “[t]he City has refused to apply that same

principle [as set forth in the agreement] to Fire Services Division employees notwithstanding the fact

that the City likewise created a Commander position in the Fire Services Division with similar duties

to that of what was formerly a 30-year Captain.” A copy of the agreement was attached to

Chitwood’s affidavit. The motion was denied.



                A hearing before the trial court was held with only arguments of counsel presented;

no evidence was taken. In ruling from the bench, the trial court stated:



                       I understand what you are saying, and I don’t believe there is
                any dispute about it. When they drastically reduced the number of
                captains in this reorganization, the captains that were left took over
                the expanded responsibilities.

                        ....

                        And the next step was that they completely abolished the
                position of captain and gave them the title of battalion commander;
               ....

                       ....

                     You know, gentlemen, of course we’re not really talking about
               a summary judgment motion here today. We’re here to try the case.
               ...

                       ....

                       The City is urging that there is no captain’s position now for
               them to be promoted to, so they presumably would retire as
               lieutenants.

                      On the other hand, their position is that some or maybe a lot
               or most of the duties of what used to be a captain’s is now taken over
               by the battalion commanders, so they ought to retire as battalion
               commanders or the salary paid battalion commanders.

                       ....

                       . . . . It just appears to the Court that the . . . equitable result
               of the dispute for those be somewhere between the captain’s salary or
               rather the lieutenant’s salary and the battalion commander’s salary.

                      I just don’t see any need of any proof. Everything has been
               presented in the pleadings and opening statements. There just doesn’t
               seem to be a dispute. The question is what should these gentlemen’s
               retirement be based on?



               The court then proposed its own formula for correctly computing the pension of a

thirty year firefighter. Appellees’ counsel expressed their dissatisfaction with the court’s suggestion.

The court thereafter commented that respective counsel had been given an opportunity to discuss the

proposal and work toward a resolution and that “[it did not] know what proof would do.” The court

then ruled from the bench in accordance with its proposal, but allowed the parties to submit post

hearing memoranda.



                After the submission of affidavits2 from both sides, the trial court entered a judgment

finding:



                [T]hat the position of Battalion Commander in the City of Memphis
                Fires Services Division is not a “Comparable Rank” to the former
                rank of Captain within the meaning of § 25-1(4)(A)3 of the Code of
                Ordinances of the City of Memphis and, as such, a 30-year firefighter
                is not entitled to have his pension based upon the salary of a Battalion


       2
       The affidavits set forth the various methods, as considered by the trial court, to calculate
Appellants’ pensions.
                Commander. The Court further finds that the City’s use of the
                Captain’s salary as maintained by the City of Memphis Fire Services
                Division for purposes of calculating the pension of a 30-year
                firefighter provides such firefighter with all the benefits and pension
                rights afforded by § 25-1(4)(A)3 of the Code of Ordinances of the
                City of Memphis.



Appellants’ request for a new trial, on grounds that they were denied a right to a trial and that the

court did not address their equal protection claim, was denied.



                Appellants identify the issues for review as follows:



                       1. Whether Plaintiffs/Appellants right to trial was improperly
                denied by the Chancellor.

                        2. Whether Plaintiffs/Appellants due process rights were
                violated as guaranteed by the Fifth and Fourteenth Amendments of
                the United States Constitution, and the Open Courts, and Law of the
                Land provisions of the Tennessee Constitution, and whether the Court
                erred in failing to address Plaintiffs/Appellants Equal Protection
                argument in its entirety.



                Appellees raise the following issues:



                        1. Whether the Court below correctly determined that the
                position of battalion commander is not a “comparable rank” to the
                former rank of captain within the meaning of §25-1(4)(A)3 of the
                code of ordinances of the City of Memphis.

                        2. Whether the Court below correctly determined that the
                City’s use of the captain’s salary as maintained by the City of
                Memphis Fire Services Division for purpose[s] of calculating the
                pension of a 30-year firefighter provides such firefighter with all the
                benefits and pension rights afforded by § 25-1(4)(A)3 of the code of
                ordinances of the City of Memphis.



                We first consider the court’s alleged error in failing to address Appellants’ equal

protection claim, as we find it dispositive. It is notable that at the hearing, the trial court considered

the taking of proof unnecessary, finding “no dispute,” but had earlier denied the motion for summary

judgment filed by Appellees. Clearly, the allegation regarding a violation of Appellants’ equal

protection rights, raised in the pleadings and argued by respective counsel at the hearing, was not
addressed or ruled upon by the trial court.3 It is, thus, necessary to remand this cause to the trial

court for the taking of evidence in order for the trial court to determine whether Appellees violated

the Appellants’ equal protection rights as granted under the Fourteenth Amendment. In view of our

remand, the remaining issues are pretermitted.



               The judgment of the trial court is, accordingly, vacated and this cause remanded to

the trial court for further proceedings as hereinabove set forth. Costs are assessed to the appellees,

for which execution may issue if necessary.



                                                      _______________________________
                                                      FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
TOMLIN, Sr. J. (Concurs)




       3
       The court’s only comment on the issue came just prior to its oral ruling from the bench,
when stating:

       Or if y’all can work out anything together, certainly the Court would be glad to
       have you do so, and it would be to the advantage of all parties concerned if you
       can do it like they did with the police situation, although I am not familiar with
       that at all and didn’t hear it.
