                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

             JOHN PITNER, v. FAYETTE COUNTY, TENNESSEE,

                     Appeal from the Chancery Court for Fayette County
                     No. 11079 Wil V. Doran, Chancellor by Designation



                    No. W1999-01217-COA-R3-CV - Decided May 4, 2000


This appeal results from the trial court’s dismissal of Plaintiff John Pitner’s cause of action against
Defendant Fayette County, Tennessee (“County”) pursuant to Rule 41.02(2) of the Tennessee Rules
of Civil Procedure. The trial court ruled that Mr. Pitner, the former Director of Planning and
Development for the County, failed to prove that the County was contractually obligated to pay
overtime to him and that Mr. Pitner further failed to prove damages. We affirm on the basis that Mr.
Pitner failed to prove the existence of a contract.

Rule 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FARMER , J., delivered the opinion of the court, in which CRAWFORD , P.J., W.S., and HIGHERS , J.,
joined.

Michael W. Whitaker, Covington, Tennessee, for the appellant, John Pitner.

Joel Porter and Todd A. Rose, Paris, Tennessee, for the appellee, Fayette County, Tennessee.


                                             OPINION


        In November of 1984, Mr. Pitner became employed by the County as the Director of its
Office of Planning and Development. As the Director of Planning and Development, Mr. Pitner was
required to attend a variety of meetings, many of which took place outside of normal business hours.1
William David Smith, who formerly served as the Fayette County Executive, wrote a letter to Mr.
Pitner in June of 1987 stating in pertinent part as follows:



       1
         In January of 1994, Mr. Pitner stated on a written questionnaire that he attends at least four
or five night and weekend meetings per month and works “extensive uncompensated overtime.”
Additionally, Mr. Pitner testified that he worked in the office on the weekends and worked in the
evenings at his home and at several local “watering holes.”
       John, I am concerned that you may not be adhering to any established work schedule
       like other county employees are expected to. It appears that you are on a “flex-time”
       schedule; you work hours most convenient to you.

       ....

       John, I do not think you should liken yourself to an elected county official, who is
       able to set his own work schedule. I realize that your job requires night time
       meetings and other odd hours, and I expect you to take compensatory time off
       periodically to make up for it. As fiscal agent, I might approve special work hour
       changes, if you request such in advance.

In July of 1994, Mr. Pitner sent a memorandum to Mr. Smith demanding that his salary be increased
so that it was equal to the salary of the Director of the Fayette County Election Commission. Mr.
Pitner further stated in the memorandum that, if his salary was not so increased, he would resign and
demand payment of accrued retirement and uncompensated overtime of at least $8,000.00. The
County responded to this memorandum by raising Mr. Pitner’s salary to an amount equal to the
salary of the Election Commission Director. In August of 1994, Mr. Pitner submitted a letter of
resignation to Mr. Smith stating in pertinent part as follows:

       I herewith resign as Fayette County Planning Director.

       ....

       There remains the matter of my very considerable uncompensated overtime in the
       service of Fayette County, which amounts to at least one-and-a-half (1½) years since
       my beginning employment date of November 26, 1984, most of which time I can
       document. In settlement of this matter, I will waive and relinquish any further claim
       upon Fayette County in return for the county’s continued payment of my full present
       salary and benefits through April 30, 1995. I make this settlement offer having full
       confidence in the assessment of my attorney, Mike Whitaker, based on the partial
       records and documents that I already have provided him, that a much more lucrative
       result would obtain should I elect to litigate for all the overtime pay due me.

Mr. Smith subsequently sent a memorandum to Mr. Pitner acknowledging the receipt of his letter
of resignation and requesting that Mr. Pitner document all of the hours of overtime for which he was
seeking compensation. Mr. Pitner responded with a memorandum to Mr. Smith purporting to
document a total of 910 hours of uncompensated overtime.2 Mr. Smith subsequently left his position


       2
         At trial, Mr. Pitner requested compensation for 6,155.28 rather than 910 hours of
uncompensated overtime. Included in the 6,155.28 hours of compensation requested by Mr. Pitner
is 91.5 days of accrued sick leave. Mr. Pitner admitted, however, that the County had a policy
against paying for unused sick time, that no one ever represented to him that he would be paid for

                                                -2-
as the County’s Executive and was succeeded by Jim Voss, who did not respond to Mr. Pitner’s
settlement offer.

        In December of 1994, Mr. Pitner filed a complaint against the County alleging that the
County had breached his employment contract and that the County had deprived him of equal
protection of law in violation of Chapter 42, Sections 1983 and 1988 of the United States Code.3
In its amended answer to this complaint, the County raised a number of defenses, including that Mr.
Pitner’s claim is barred by estoppel insofar as it is inconsistent with signed reports submitted to Mr.
Smith by Mr. Pitner which purport to document the number of hours that he worked during
particular periods of time. The matter came to be heard on February 9 and 10, 1999. At the
conclusion of Mr. Pitner’s proof, the County moved for the dismissal of Mr. Pitner’s claim pursuant
to Rule 41.02(2) of the Tennessee Rules of Civil Procedure.4 The trial court granted the motion,
stating as follows:

              From a consideration of all of the testimony and proof in the case, it is the
       opinion of the court that the plaintiff, Mr. Pitner, has failed to prove by a
       preponderance of the evidence, that there was a contract for compensation, or to
       allow him to accumulate compensation over a period of years, for purposes of
       monetary recompense. Even if there was a contract in that regard, from all of the
       proof in this case, the compensable time could not be determined by this court
       without guess, surmise, or conjecture, and that is not the province of this court to do.



his unused sick time, and that, during his employment, he never expected to be paid for his unused
sick time.
       3
        At the taking of Mr. Pitner’s deposition, counsel for Mr. Pitner indicated that Mr. Pitner was
no longer alleging a violation of equal protection. Accordingly, this theory of recovery was not
pursued at trial or on appeal.
       4
           Rule 41.02(2) provides as follows:

                After the plaintiff, in an action tried by the court without a jury, has
       completed the presentation of plaintiff’s evidence, the defendant, without waiving the
       right to offer evidence in the event the motion is not granted, may move for dismissal
       on the ground that upon the facts and the law the plaintiff has shown no right to
       relief. The court shall reserve ruling until all parties alleging fault against any other
       party have presented their respective proof-in-chief. The court as trier of the facts
       may then determine them and render judgment against the plaintiff or may decline
       to render any judgment until the close of all the evidence; in the event judgment is
       rendered at the close of plaintiff’s evidence, the court shall make findings of fact if
       requested in writing within three days after the announcement of the court’s decision.

T.R.C.P. 41.02(2).

                                                 -3-
       I have given great weight to these time sheets, because I have to. There is a principle
       in equity called equitable estoppel: You are supposed to say what is right at the
       proper time to say it, and not later on, say it is all wrong. I have said it before, but
       that is not what the case was. I have no doubt in my mind that Mr. Pitner probably
       worked quite a bit of overtime, but there is not any – I don’t think he ever
       contemplated that he would get paid for it. That is why he did that, maybe because
       he knew there was no such thing as being paid for it. You just have to take your time
       off, as the testimony here is, from Ms. Pullium and others, if you worked overtime,
       you took time off. And apparently he couldn’t do that. That is unfortunate, but that
       is something he should have dealt with at the time, and not wait until it was time for
       him to quit, ten years later, and then deal with it.

              For all of these reasons, it is the opinion of the Court that the plaintiff’s
       prayer must fail, and there should be a judgment in favor of defendant.



Consistent with this ruling, the trial court subsequently entered an order dismissing Mr. Pitner’s
complaint with prejudice. This appeal by Mr. Pitner followed.

       The issues raised on appeal, as stated by Mr. Pitner, are as follows:

       I.      Was there an express or implied contract between plaintiff and Fayette
               County for the plaintiff to accumulate compensatory time for hours worked
               beyond the county employees[’] regular work week[?]

       II.     If a contract existed could the compensatory time be determined without
               guess, surmise or conjecture?

       III.    Whether the county was entitled to an estoppel when it had actual notice of
               plaintiff’s extraordinary hours and showed no detrimental reliance on his
               failure to file monthly time sheets[?]

       IV.     Whether the plaintiff should have been permitted to treat the former county
               executive as an adverse party or witness identified with defendant[?]

When, as in the case at bar, the trial court has dismissed the plaintiff’s claim pursuant to Rule
41.02(2), our review of this ruling is de novo on the record, with a presumption of correctness
attaching to the trial court’s findings of fact. See Nold v. Selmer Bank & Trust Co., 558 S.W.2d
442, 444 (Tenn. Ct. App. 1977); T.R.A.P. 13(d). Accordingly, we may not reverse the trial court’s
findings of fact unless they are contrary to the preponderance of the evidence. See id.

        We must first consider whether there was a contract between the parties establishing a right
on the part of Mr. Pitner to payment for accrued compensatory time that remained unused at the end

                                                 -4-
of his employment with the County. Mr. Pitner contends that there was an express contract between
the parties regarding the matter of compensatory time, as evidenced by a June 1987 letter wherein
Mr. Smith stated to Mr. Pitner as follows: “I realize that your job requires night time meetings and
other odd hours, and I expect you to take compensatory time off periodically to make up for it.”
Consistent with the policy evidenced by this statement, Mr. Pitner testified (1) that he was told by
Mr. Smith prior to his employment that the County did not pay overtime but that he would be able
to take compensatory time, (2) that, approximately midway through his employment with the
County, he discovered that the County’s policy was that compensatory time should be taken in the
same month in which it was accrued, (3) that he did, in fact, periodically take compensatory time,
(4) that he never believed that he would be paid for all of the accrued overtime that he was not able
to take as compensatory time, and (5) that he hoped to receive some sort of settlement regarding his
unused compensatory time at the end of his employment with the County. Thus, Mr. Pitner’s own
testimony reveals that, although both parties agreed that Mr. Pitner was entitled to take
compensatory time, there was no agreement between the parties regarding payment for
compensatory time that remained unused at the end of Mr. Pitner’s employment. We therefore
conclude that there is no express contract between the parties entitling Mr. Pitner to compensation
for the hours of overtime that he did not take as compensatory time.5

        Mr. Pitner also contends that there is an implied contract between the parties regarding the
matter of compensatory time. First, Mr. Pitner suggests that, because he rendered services to the
County with the County’s knowledge, the County impliedly promised to compensate him for these
services. It is undisputed, however, that the County did pay a salary to Mr. Pitner and had a policy
allowing Mr. Pitner to take off compensatory time to make up for his hours of overtime. Thus, the
County did compensate or offer to compensate Mr. Pitner for his services. Additionally, Mr. Pitner
suggests that, because the County paid some other employees for their accrued compensatory and/or
sick time upon leaving County service,6 the County impliedly promised to also pay him for his
accrued compensatory time. As stated above, however, Mr. Pitner understood at the time he
accepted the County’s offer of employment that the County did not pay overtime and that employees
were expected to take off compensatory time to make up for their hours of overtime. Additionally,


       5
         Mr. Pitner complains on appeal that, as a result of the quantity of work and the lack of staff
in his office, he was simply unable to take off enough compensatory time to make up for his many
hours of overtime. In a June 1987 letter to Mr. Pitner, Mr. Smith stated that he might approve
special work hour changes if Mr. Pitner requested such changes in advance. Mr. Pitner did not
request any such hour changes. Additionally, Mr. Pitner testified that he was never turned down by
the County when he requested additional staff to help with the increasing workload of his office.
There is no evidence in the record suggesting that Mr. Pitner attempted to deal with his inability to
take off a sufficient amount of compensatory time by requesting additional staff. Given Mr. Pitner’s
acquiescence with regard to this problem, we reject Mr. Pitner’s argument that he was unable to
follow the County’s policy regarding the taking of compensatory time.
       6
       These employees include Larry Martin, Paula Dennison, Mary Louise Murphy, Mike
McNeil, Mary Wright, Rita Thompson, and Ricky Hoskins.

                                                 -5-
Mr. Pitner testified that he never believed that he would be paid for all of the unused compensatory
time that remained at the end of his employment but hoped to receive a settlement from the County
to compensate him for these hours. Finally, Mr. Pitner admitted that he did not become aware that
other employees had been paid for their unused compensatory and/or sick time until after leaving
his employment with the County. Under such circumstances, the County’s payment to a few
employees for unused compensatory time did not create an implied contract between the parties
entitling Mr. Pitner to receive payment for the accrued compensatory time that remained unused at
the end of his employment.

        The trial court in the instant case refused to allow Mr. Pitner to use leading questions during
his direct examination of Mr. Smith. On appeal, Mr. Pitner argues that he should have been allowed
to ask Mr. Smith leading questions pursuant to Rule 611(d) of the Tennessee Rules of Evidence,
which provides as follows:

               Calling Adverse Party. When a party in a civil action calls an adverse party
       (or an officer, director, or managing agent of a public or private corporation or of a
       partnership, association, or individual proprietorship which is an adverse party),
       interrogation on direct examination may be by leading questions. The scope of cross-
       examination under this paragraph shall be limited to the subject matter of direct
       examination, and cross-examination may be by leading questions.


T.R.E. 611(d). In general, the question of whether to allow a party to lead a witness is left within
the sound discretion of the trial court. See Wilkerson v. Altizer, 845 S.W.2d 744, 747 (Tenn. Ct.
App. 1992). Mr. Smith served as the County’s Executive from 1978 to 1994 and thus was formerly
an elected official of the County.7 Rule 611(d) specifically applies to “an officer, director, or
managing agent of a public or private corporation or of a partnership, association or individual
proprietorship” but does not specifically apply to an officer, director, or managing agent of a
municipality such as the County.8 We therefore think that Rule 611(d) is inapplicable to the case
at bar. Accordingly, we conclude that the trial court did not abuse its discretion or otherwise err in
refusing to allow Mr. Pitner to use leading questions during his direct examination of Mr. Smith.

        Assuming, arguendo, that the trial court was required by Rule 611(d) to allow the use of
leading questions during Mr. Pitner’s direct examination of Mr. Smith, we next consider whether
the court’s ruling was harmless error. Mr. Pitner argues on appeal that “[t]he failure of the Court to
permit the Plaintiff [to ask leading questions] was prejudicial and could not be deemed harmless
error since it totally impacted Plaintiff’s presentation of proof.” Immediately following the trial


       7
       Mr. Smith left this position and was replaced by Jim Voss just thirteen days prior to the
submission of Mr. Pitner’s letter of resignation.
       8
         Mr. Pitner concedes in the brief he submitted to this Court that “TRE 611(d) does not
exactly fit the situation.”

                                                 -6-
court’s ruling regarding this matter, however, counsel for Mr. Pitner stated that “[i]t is not worth
arguing about, because I think I’m through, just about.” Mr. Pitner has not demonstrated any way
in which his inability to ask leading questions prevented him from eliciting relevant testimony from
Mr. Smith and we are not satisfied that the court’s ruling “totally impacted Plaintiff’s presentation
of proof.” Thus, we conclude that any error on the part of the trial court with respect to this matter
was harmless.

        Given our conclusions that there was no contract between the parties entitling Mr. Pitner to
payment for unused compensatory time and that the trial court did not err in refusing to allow
counsel for Mr. Pitner to examine Mr. Smith using leading questions, we find it unnecessary to
address the remaining issues raised on appeal. Thus, we preclude any discussion regarding whether
Mr. Pitner adequately proved his damages or whether Mr. Pitner’s claim is barred under the theory
of equitable estoppel.

         Based on the foregoing, the trial court’s dismissal of Mr. Pitner’s claim against the County
is affirmed. The costs of this appeal are assessed against Mr. Pitner, for which execution may issue
if necessary.




                                                 -7-
