                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 7, 2007 Session

            YELLOW TRANSPORTATION, INC. v. LARRY WARD

                 Direct Appeal from the Chancery Court for Shelby County
                     No. CH-04-2536-I    Walter L. Evans, Chancellor



                     No. W2007-00946-COA-R3-CV - Filed July 31, 2008


Employer appeals the trial court’s grant of partial summary judgment in favor of Employee. The
parties entered into a settlement agreement on Employee’s workers’ compensation claim. The
agreement included language that Employee would not seek further employment with Employer.
In granting partial summary judgment to Employee, the trial court found that the disputed language
of the agreement did not create a contractual obligation on the part of Employee. We reverse and
grant summary judgment in favor of Employer.


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

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which HOLLY M. KIRBY , J.,
joined, and W. FRANK CRAWFORD , J., did not participate.

Jeff Weintraub, J. Gregory Grisham, Daniel S. Lovett, Memphis, TN, for Appellant

Michael C. Skouteris, J. Chandley Crawford, Gail O. Mathes, Memphis, TN, for Appellee
                                                       OPINION

        Larry Ward (“Employee”) was employed by Yellow Transportation, Inc. (“Yellow
Transportation,” or “Employer”) as a City Driver at its Memphis, Tennessee terminal. As a driver-
employee, Mr. Ward was a member of the bargaining unit represented by Local Union #667 of the
International Brotherhood of Teamsters. The terms of Mr. Ward’s employment were governed by
the National Master Freight Agreement, as modified by the Southern Region Over-the-Road Motor
Freight Supplemental Agreement.

        On or about November 25, 2000, Mr. Ward suffered the second of two back injuries that
were found to be compensable workers’ compensation injuries.1 As a result of this injury, Mr. Ward
underwent disk laminectomy surgery (his second such surgery). This second surgery was performed
by Dr. John Brophy. Following the surgery, on or about August 22, 2001, Dr. Brophy imposed a
permanent, 40-pound lifting restriction on Mr. Ward.

         Yellow Transportation’s requirements for the position of City Driver include a 75-pound
lifting requirement. Because Mr. Ward was limited to a 40-pound lifting restriction, he was unable
to perform one of the essential functions of his job. Following negotiations, Yellow Transportation
and Mr. Ward reached a tentative settlement of Mr. Ward’s workers’ compensation claim on or
about April 19, 2004.

         According to the affidavit of John Cannon, the attorney on Mr. Ward’s original workers’
compensation case, after the tentative settlement was reached, Mr. Ward undermined that agreement
by misrepresenting his condition to Dr. Brophy in order to have the permanent, 40-pound lifting
restriction waived, to wit:

                   After the settlement was reached, Ward went to Dr. Brophy on that
                   same day, April 19, 2004. According to Dr. Brophy’s notes, Ward
                   told him that he had been working the past two and a half years as a
                   truck driver within the 40-pound lifting restriction, without difficulty.
                   Ward further told Dr. Brophy that he needed an unrestricted clearance
                   to work in order to apply for a position with the U.S. Post Office, but
                   that the position he was applying for would not require lifting more
                   than 40 pounds. Relying on these misrepresentations, Dr. Brophy
                   lifted the permanent restrictions.

Dr. Brophy’s notes, which were attached as an exhibit to Mr. Cannon’s affidavit describe the
incident as follows:




         1
            The first injuries, suffered in 1999, are not the subject of the current litigation except to the extent that this
earlier injury, coupled with the second injury, resulted in a permanent 40-pound lifting restriction.

                                                             -2-
              Postoperatively, [Mr. Ward’s] pain improved and he requested an
              opportunity to return to work at full duty. At that time, we discussed
              the fact that his primary risk long term was back pain and he should
              refrain from lifting over 40 pounds. Mr. Ward insisted on returning
              to work at full duty with Yellow Freight; however, the job description
              required lifting to 75 pounds. As Mr. Ward refused to follow the
              guidelines, he was designated with a permanent 40 pound lifting
              restriction which subsequently disqualified him from return[ing] to
              work at Yellow Freight. He returned to my office on 19 April, 2004
              reporting that he had been working the past two and a half years as a
              trucker within the 40 pound lifting restriction and was having no
              difficulty. He indicated to me that he was now applying for a job
              which did not require lifting over 40 pounds; however, he needed
              administrative clearance to return to work at full duty without
              restriction. As stated in my note of 19 April, 2004, we discussed the
              importance of his physical conditioning and minimizing heavy lifting.

        On April 26, 2004, Mr. Ward filed a Grievance under the company’s collective bargaining
agreement with Teamsters Local 667, seeking reinstatement at Yellow Transportation based upon
the fact that Dr. Brophy had waived the lifting restriction. Upon learning of the filing of the
Grievance, counsel for Yellow Transportation notified Dr. Brophy of the situation. Dr. Brophy’s
chart notes read, in pertinent part, as follows:

              Counsel for Yellow Freight...notified me today by phone that Mr.
              Ward is now demanding reinstatement to his old job after agreeing to
              a settlement of his Workers’ Compensation claim related to his last
              surgery, based on my clearance to return to work on 19 April, 2004.
              Mr. Ward obtained this clearance under false pretenses. He has
              apparently lied about his employment as a trucker for the past 2-1/2
              years as well as his plan to apply for a job at the Post Office which
              did not require lifting over 40 pounds. Based on our discussion in
              2001, he clearly understood that the job at Yellow Freight entailed
              lifting up to 75 pounds. Mr. Ward is playing games and apparently
              cannot be trusted to follow the basic medical guideline of limiting his
              lifting to under 40 pounds. His permanent 40 pound lifting restriction
              is therefore reinstated as it was changed under false pretenses on 19
              April, 2004.

        On May 26, 2004, Mr. Cannon sent Mr. Ward’s attorney a letter, informing him of Mr.
Ward’s conduct. Mr. Cannon then insisted, as a condition for continuing with the settlement, that
the following language be inserted into the Settlement Agreement:




                                               -3-
               Section 2.4 Industrial Disability Rating: The Parties agree that the
               injury has resulted in Plaintiff suffering an industrial disability rating
               of 36.8% to the body as a whole taking into account Employee’s age,
               education, skills and training, local job opportunities, and capacity to
               work at types of employment available in Employee’s disabled
               condition. The Employee acknowledges that due to his limitations,
               he does not believe that he can carry out the essential job functions of
               any job or position to which he may be qualified, with or without
               accommodations with the employer, and therefore has elected not to
               return to work for Yellow Freight now or in the future.

        With the inclusion of the new language, the Settlement Agreement was finalized. On June
18, 2004, the Settlement Agreement was approved by the Tennessee Department of Labor, Division
of Workers’ Compensation Section. The Workers’ Compensation case, which had been filed in the
Circuit Court at Shelby County, was dismissed with prejudice by consent order of June 21, 2004.

       Based upon the Section 2.4 language of the Settlement Agreement, by letter of August 12,
2004, Yellow Transportation removed Mr. Ward from its seniority roster. On August 26, 2004, Mr.
Ward filed a second formal Grievance with the Teamsters Local Union No. 667, claiming that he
was improperly and unjustifiably removed from the seniority roster. Consequently, Mr. Ward
requested that he be reinstated to full duty with seniority and all lost earnings. In response to this
Grievance, on October 6, 2004, Yellow Transportation filed a Motion to Enforce the Settlement
Agreement. This motion was denied on the grounds that, because the Workers’ Compensation
action had been dismissed with prejudice, the trial court did not have jurisdiction to rule on the
Motion.

        On December 17, 2004, Yellow Transportation filed a Complaint for Breach of Contract and
Injunctive relief against Mr. Ward, asserting that the August 26, 2004 Grievance filed by Mr. Ward
violated the Settlement Agreement. Consequently, Yellow Transportation asked the court for an
order enforcing the Settlement Agreement, and for an injunction prohibiting Mr. Ward from seeking
further employment with Yellow Transportation and from pursuing the Grievance. On January 18,
2005, Mr. Ward filed his Answer, in which he denies the material allegations of the Complaint.
Contemporaneously therewith, Mr. Ward filed a counter-complaint against Yellow Transportation,
seeking judicial modification and/or rescission of the Settlement Agreement, and alleging common-
law retaliatory discharge, violation of the Tennessee Human Rights Act, and invasion of privacy.
Yellow Transportation answered the counter-complaint on February 18, 2005, denying the material
allegations contained therein.

       On March 7, 2005, the trial court issued a Temporary Injunction, which enjoined Mr. Ward,
or others acting on his behalf, from “participating in, assisting, or in any way furthering the
processing of Ward’s August 26, 2004 Grievance via Teamsters Local 667 against Plaintiff Yellow
Transportation, Inc. seeking reinstatement, employment, or re-employment on the Yellow



                                                  -4-
Transportation, Inc. Seniority list, or engaging in any other efforts or activities designed to seek such
reinstatement, employment, or re-employment” pending a full hearing.

        On August 10, 2005, Mr. Ward filed a Motion for Summary Judgment.2 In his motion, Mr.
Ward asserts that the trial court should rescind or judicially modify the terms of the Settlement
Agreement based, inter alia, upon Mr. Ward’s assertions that: (1) the Settlement Agreement is
unenforceable because the last sentence of Paragraph 2.4 [see supra] was a “force removal” clause,
which is illegal under Tennessee law; (2) the Settlement Agreement lacked mutual assent because
the last sentence of Paragraph 2.4 is “vague and ambiguous;” and (3) the Settlement Agreement
lacked adequate consideration and, as such, did not constitute an enforceable bargained-for
exchange.

        On September 30, 2005, Yellow Transportation responded to Mr. Ward’s Motion. In
conjunction with the response, Yellow Transportation filed its own Motion for Summary Judgment,
arguing that the language of Paragraph 2.4 of the Settlement Agreement is plain and unambiguous
and, therefore, should be enforced according to the intent of the parties (as expressed in the plain
language contained in the Settlement Agreement).

       Following a hearing, on March 30, 2007, the trial court entered its “Order on Cross-Motions
for Summary Judgment,” which Order reads, in relevant part, as follows:

                 1. As held in previous hearings in this matter, the Court finds that the
                 language contained in the last sentence of Section 2.4 of the
                 Settlement Agreement entered into by the parties is clear and
                 unambiguous.

                 2. The Court’s reading of the plain language of the last sentence of
                 Section 2.4 is as follows: Section 2.4 provides Mr. Ward with the
                 option or election to seek employment at Yellow and does not
                 preclude Ward from seeking employment with Yellow, if he
                 reasonably believes he can perform the essential functions of his
                 former job.

                 3. It is the Court’s opinion that the last sentence of Section 2.4 is a
                 unilateral recognition of Mr. Ward’s belief as to his condition at the
                 time of the execution of the Settlement Agreement. The Settlement
                 Agreement does not say that it is conditional upon Mr. Ward’s
                 agreeing not to return to work at Yellow.



        2
          Because Mr. Ward’s Motion for Summary Judgment addressed only the rescission/judicial modification of
the Settlement Agreement, and did not address Mr. Ward’s claim s for retaliatory discharge, THRA, or invasion of
privacy, the trial court treated Mr. Ward’s motion as a motion for partial summary judgment.

                                                      -5-
               4. Mr. Ward’s statement that he now believes he can perform the
               essential functions of the driver’s position at Yellow serves as his
               election to attempt to seek employment with Yellow. The Court and
               the parties recognize that Mr. Ward remains subject to a 40-pound
               lifting restriction that would currently prevent his employment as a
               driver with Yellow; however Ward believes the 40-pound restriction
               is unenforceable because of his belief that it was re-instated under
               false pretenses.

               *                                    *                            *

                       IT IS, THEREFORE, ORDERED that:

                     1. Yellow’s Motion for Summary Judgment is denied, and
               Mr. Ward’s Motion for Summary Judgment is granted. As such, Mr.
               Ward may seek employment with Yellow.

                      2. Based on Mr. Ward’s attorneys’ notice in open court, his
               Counter-Complaint and all its remaining claims contained therein are
               hereby voluntarily dismissed, without prejudice.

       Yellow Transportation appeals and raises two issues for review as stated in its brief:

               1. Whether the trial court erred in denying summary judgment to
               Appellant, in that it failed to interpret the plain and unambiguous
               language of the Agreement between the parties, in accordance with
               the law of contract interpretation in Tennessee, to mean that Section
               2.4 of the Agreement, read in its entirety, constitutes an election by
               Appellee not to return to work for Appellant now or in the future.

               2. Whether the trial court erred in granting Appellee’s motion for
               partial summary judgment for the same reasons as stated in 1., above.

        It is well settled that a motion for summary judgment should be granted when the movant
demonstrates that there are no genuine issues of material fact and that the moving party is entitled
to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary
judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain
v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take
the strongest legitimate view of evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847
S.W.2d 208 (Tenn.1993), our Supreme Court stated:




                                                  -6-
               Once it is shown by the moving party that there is no genuine issue
               of material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery material, that there is a genuine, material fact
               dispute to warrant a trial. In this regard, Rule 56.05 provides that the
               nonmoving party cannot simply rely upon his pleadings but must set
               forth specific facts showing that there is a genuine issue of material
               fact for trial.

Id. at 211 (citations omitted).

        Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn.1995). Because only questions of law are involved, there is no presumption of correctness
regarding a trial court’s grant or denial of summary judgment. See Bain, 926 S.W.2d at 622.
Therefore, our review of the trial court's grant of summary judgment is de novo on the record before
this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

        The language used in a contract must be taken and understood in its plain, ordinary, and
popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578
(Tenn.1975). In construing contracts, the words expressing the parties' intentions should be given
the usual, natural, and ordinary meaning. Ballard v. North American Life & Casualty Co., 667
S.W.2d 79 (Tenn.Ct.App.1983). If the language of a written instrument is unambiguous, the Court
must interpret it as written rather than according to the unexpressed intention of one of the parties.
Sutton v. First Nat'l Bank, 620 S.W.2d 526 (Tenn.Ct.App.1981). A contract is not ambiguous
merely because the parties have different interpretations of the contract's various provisions,
Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Sys., Inc., 884 S.W.2d at 462
(citing Oman Constr. Co. v. Tennessee Valley Authority, 486 F.Supp. 375, 382 (M.D.Tenn.1979)),
nor can this Court create an ambiguity where none exists in the contract. Cookeville P.C., 884
S.W.2d at 462 (citing Edwards v.. Travelers Indem. Co., 201 Tenn. 435, 300 S.W.2d 615, 617-18
(1957)). The interpretation of a written contract is a matter of law and not of fact, see Rainey v.
Stansell, 836 S.W.2d 117 (Tenn.Ct.App.1992). Consequently, construction of the contract is
particularly suited to disposition by summary judgment. Id. at 119. Therefore, we review the trial
court's finding concerning the agreement between these parties de novo upon the record with no
presumption of correction accompanying the trial court's conclusions of law. See Tenn. R.App. P.
13(d); Waldron v. Delffs, 988 S .W.2d 182, 184 (Tenn.Ct.App.1998); Sims v. Stewart, 973 S.W.2d
597, 599-600 (Tenn.Ct.App.1998).

        The contention between these parties involves the interpretation of Paragraph 2.4 of the
Settlement Agreement, which Paragraph is set forth in its entirety above. On appeal, Yellow
Transportation asserts, inter alia, that the plain and unambiguous language of this paragraph
contractually obligates Mr. Ward to refrain from seeking employment with Yellow Transportation
not only at the time that the agreement was entered, but also going forward. Mr. Ward argues, and
the trial court found, that the disputed language is merely an acknowledgment of Mr. Ward’s


                                                 -7-
subjective belief that he, at the time of the making of the agreement, was unable to perform the
essential functions of any job at Yellow Transportation, regardless of accommodation; and that,
because of his current belief, he would not seek employment with Yellow Transportation. Because
the trial court found that the “election” not to seek employment was based solely upon Mr. Ward’s
subjective opinion as to his ability to perform said job, if and when Mr. Ward subjectively changed
his mind, and decided that he was, in fact, able to perform, he could, according to the trial court’s
interpretation, seek employment with Yellow Transportation at that time.

        We agree with the trial court that the language in Paragraph 2.4 of the Settlement Agreement
is plain and unambiguous. We disagree, however, with the trial court’s interpretation of the
language.

        The trial court characterizes Paragraph 2.4 as a “unilateral recognition of Mr. Ward’s belief
as to his condition at the time of the execution of the Settlement Agreement,” and says that it
“provides Mr. Ward with the option or election to seek employment at Yellow and does not preclude
Ward from seeking employment with Yellow, if he reasonably believes he can perform the essential
functions of his former job.”

       We respectfully disagree with this analysis of the Agreement. In the Agreement, Ward
“acknowledges that due to his limitation, he does not believe that he can carry out the essential job
functions of any job or position to which he may be qualified, with or without accommodations with
[Yellow Transportation]. . . .” This language reflects the reason for Ward’s decision, which may
have been important in receiving the prior trial court’s approval of the settlement of Ward’s worker’s
compensation claim, to show that his decision was voluntary and had a reasonable basis.3

        At this point, however, the reason for Ward’s decision is not determinative. The operative
language in the Settlement Agreement to be interpreted at this juncture is the statement that Ward
“has elected not to return to work for Yellow Freight Systems now or in the future.” WEBSTER ’S
DICTIONARY defines the term “elect” as “to choose.” Webster’s II New College Dictionary 369 (3d
ed. 2005). Thus, “has elected” means that Ward has made a choice or decision not to return to work
for Yellow Transportation. Addition of the phrase “now or in the future” clearly means that Ward
has made a decision not to ever return to work for Yellow Transportation.

       From our review of the Settlement Agreement as a whole, it is also clear that the monies paid
to Ward under the Agreement were consideration in part for Ward’s election not to ever return to
work for Yellow Transportation. Having made the decision not to ever return to work for Yellow


         3
           The briefs on appeal refer to Department of Labor procedural safeguards pertaining to an employee who is
required to give up his job in order to receive his worker’s compensation settlement. The prefatory language on the
reason for Ward’s decision, as well as the use of the word “election” in the Agreement, may have been to indicate that
Ward was not “required” to give up his job. Regardless, the time for Ward to raise the issue of whether his decision was
“forced” or whether the Department of Labor safeguards are applicable would have been when the Settlement
Agreement was approved, or in an appeal or Rule 60 motion on the prior trial court’s approval of the Settlement
Agreement. It is undisputed that Ward was represented by counsel in signing the Agreement.

                                                          -8-
Transportation, and having accepted consideration from Yellow Transportation in return for it, Ward
cannot now renege on his agreement.

        Therefore, we reverse the trial court’s grant of partial summary judgment in favor of Ward,
and reverse the trial court’s denial of Yellow Transportation’s motion for summary judgment. The
cause is remanded with directions to enter an order granting Yellow Transportation’s motion for
summary judgment.

       The decision of the trial court is reversed, and the cause is remanded as set forth above.
Costs of this appeal are assessed against Appellee Larry Ward, for which execution may issue if
necessary.



                                                      ______________________________
                                                      ALAN E. HIGHERS, P.J., W.S.




                                                -9-
