                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                October 29, 2015 Session


       SNS ELECTRICAL INSPECTIONS, P.C., ET AL. v. STATE OF
                          TENNESSEE

               Appeal from the Tennessee Claims Commission
 No. K20121286 Nancy Miller-Herron, Commissioner, TN. Claims Commission,
                             Western Division

                          ________________________________

               No. W2015-00145-COA-R3-CV – Filed November 4, 2015
                      _________________________________


This is an appeal from the Tennessee Claims Commission involving a contract dispute. The
Claims Commissioner concluded that the Appellants were not entitled to damages other than
for services rendered because their services contract with the State was terminated for cause.
Discerning no error, we affirm.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                                     Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which BRANDON O.
GIBSON, J., and KENNY ARMSTRONG, J., joined.

Bryant Beatty Kroll and William Gary Blackburn, Nashville, Tennessee, for the appellants,
SNS Electrical Inspections, P.C., and Susan Newman Scearce.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; E. Ashley Carter, Assistant Attorney General; and William J. Marett, Jr., Senior
Counsel, for the appellee, State of Tennessee.

                                         OPINION

                                        Background
       In June 2011, Plaintiff/Appellant SNS Electrical Inspections, P.C. (“SNS Electrical”)
entered into a contract with the State of Tennessee Department of Commerce and Insurance
(“State”). The contract was signed by Plaintiff/Appellant Susan Newman Scearce (together
with SNS Electrical, “Ms. Scearce”) on behalf of SNS Electrical. 1 Under the contract, Ms.
Scearce was appointed to serve as a Deputy Electrical Inspector and was to perform various
services for the State in that capacity. Among the duties outlined in the contract, Ms. Scearce
was required to “conduct inspections of electrical installations in accordance with all
applicable statutes (including but not limited to Tenn. Code Ann. § 68-102-143), rules and
regulations of the State of Tennessee, and Instructions of the Commissioner of Commerce
and Insurance, or her agents.” The contract provided that it would be effective for the period
from July 1, 2011, to June 30, 2016.
      Although the contract was set to terminate in 2016, the contract could be terminated
prematurely by the State either for convenience or for cause. Pursuant to the “for
convenience” termination provision, the State could terminate the contract for any reason,
provided that:
                 The State shall give [Ms. Scearce] at least thirty (30) days
                 written notice before the effective termination date. [Ms.
                 Scearce] shall be entitled to compensation for satisfactory,
                 authorized service completed as of the termination date, but in
                 no event shall the State be liable to [Ms. Scearce] for
                 compensation for any service which has not been rendered.
                 Upon such termination, [Ms. Scearce] shall have no right to any
                 actual general, special, incidental, consequential, or any other
                 damages whatsoever of any description or amount.
The above notice was not required, however, if the contract was terminated for cause:
                 If [Ms. Scearce] fails to properly perform [her] obligations
                 under this Contract in a timely or proper manner, or if [Ms.
                 Scearce] violates any terms of this Contract, the State shall have
                 the right to immediately terminate the Contract and withhold
                 payments in excess of fair compensation for completed services.
                 Notwithstanding the above, [Ms. Scearce] shall not be relieved
                 of liability to the State for damages sustained by virtue of any
                 breach of this Contract by [Ms. Scearce].


        1
           The record is not clear as to Ms. Scearce‟s exact role in SNS Electrical. Suffice it to say, the parties
throughout this litigation have treated Ms. Scearce and SNS Electrical as interchangeable. Accordingly, we
refer to them collectively throughout this Opinion.
                                                        2
      The contract also discussed the compensation owed to Ms. Scearce for performance.
The contract provided, however, that:
                In no event shall the maximum liability of the State under this
                Contract exceed four hundred twenty-three thousand dollars
                ($423,000.00). . . .
                [Ms. Scearce] is not entitled to be paid the maximum liability for
                any period under the Contract or any extensions of the Contract
                for work not requested by the State. The maximum liability
                represents available funds for payment to [Ms. Scearce] and
                does not guarantee payment of any such funds to [Ms. Scearce]
                under this Contract unless the State requests work and [Ms.
                Scearce] performs said work. In which case, the Contractor shall
                be paid in accordance with the payment rates detailed in section
                C.3. The State is under no obligation to request work from [Ms.
                Scearce] in any specific dollar amounts or to request any work at
                all from [Ms. Scearce] during any period of this Contract.
        In December 2011, Robert Sanders, a general contractor, filed a complaint against Ms.
Scearce, alleging that she forged his name on three official documents related to the issuance
of a non-standard electrical permit for an electrical project in Dyersburg, Tennessee (“the
PolyOne Project”). The State reviewed the documents and concluded that they did not
contain Mr. Sanders‟s signature. Ms. Scearce admitted that she had filled out the form in the
contractor‟s name in some places but insisted that she did so in order to facilitate the project
at the request of the permit issuing agent, Dyersburg Electric Service. Regardless, the State
terminated the contract with Ms. Scearce by letter, effective immediately, on February 6,
2012.
       On May 9, 2012, Ms. Scearce filed a notice of claim for damages against the State
with the Tennessee Division of Claims Administration. On August 7, 2012, the claim was
transferred to the Tennessee Claims Commission (“Claims Commission”) pursuant to
Tennessee Code Annotated Section 9-8-402(c).2 Ms. Scearce claimed that the State breached
the fee-for-service contract with her by failing to properly investigate frivolous claims
against her, by depriving her of due process, and for terminating the contract without just

        2
         Tennessee Code Annotated Section 9-8-402(c) provides that: “If the division [i.e., the
Tennessee Division of Claims Administration] fails to honor or deny the claim within the ninety-day
settlement period, the division shall automatically transfer the claim to the administrative clerk of the
claims commission.”
                                                   3
cause. On September 6, 2012, the State answered, denying the material allegations contained
therein.
       On June 30, 2014, the State filed a motion for summary judgment, arguing that Ms.
Scearce was not entitled to damages because the contract was terminated for just cause and,
in any event, the contract did not entitle Ms. Scearce to any future compensation. The Claims
Commissioner granted the motion for summary judgment on October 9, 2014, finding that
Ms. Scearce had not performed services in accordance with the contract requirements
because she had signed a contractor‟s name onto electrical inspection permits without his
permission. Specifically, the Claims Commissioner found that although Ms. Scearce did not
commit forgery, as there was no intent to defraud or harm another, Ms. Scearce violated the
instructions of the Commissioner of Commerce and Insurance, or her agent, in doing so. The
Claims Commissioner also found that there could be no damages, as the State had no
obligation to request work from Ms. Scearce under the contract. The Claims Commissioner,
however, concluded that Ms. Scearce was entitled to pay for work already completed. The
Claims Commissioner entered a final order on January 15, 2015 awarding Ms. Scearce
$6,500.00 in damages for work already completed and indicating that no claims remained to
be adjudicated. Ms. Scearce appealed.
                                      Issue Presented
       As we perceive it, this case involves one dispositive issue: Whether the Claims
Commission properly granted summary judgment to the State on Ms. Scearce‟s breach of
contract claim, and if not, to what damages, if any, is Ms. Scearce entitled?
                                    Standard of Review
        Appeals from decisions by the Claims Commission are governed by the same rules
applicable in appeals from trial court civil actions. Tenn. Code Ann. §9-8-403(a)(1) (noting
that other than some specified exceptions, “the decisions of the individual commissioners . . .
regarding claims on the regular docket may be appealed to the Tennessee court of appeals
pursuant to the same rules of appellate procedure which govern interlocutory appeals and
appeals from final judgments in trial court civil actions”). Because this case involves
summary judgment, we utilize the summary judgment standard applicable in all trial court
civil cases.
       Summary judgment is appropriate where: (1) there is no genuine issue with regard to
the material facts relevant to the claim or defense contained in the motion and (2) the moving
party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.
56.04. In cases where the moving party does not bear the burden of proof at trial, the movant
may obtain summary judgment if it:

                                              4
               (1) Submits affirmative evidence that negates an essential
              element of the nonmoving party‟s claim; or
              (2) Demonstrates to the court that the nonmoving party‟s
              evidence is insufficient to establish an essential element of the
              nonmoving party‟s claim.
Tenn. Code Ann. § 20-16-101 (applying to cases filed after July 1, 2011); see also Rye v.
Women's Care Ctr. of Memphis, MPLLC, --- S.W.3d ---, 2015 WL 6457768, at *22 (Tenn.
Oct. 26, 2015) (judicially adopting a summary judgment parallel to the statutory version
contained in Tenn. Code Ann. § 20-16-101). When the moving party has made a properly
supported motion, the “burden of production then shifts to the nonmoving party to show that
a genuine issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may
not simply rest upon the pleadings but must offer proof by affidavits or other discovery
materials to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the
nonmoving party “does not so respond, summary judgment, if appropriate, shall be entered.”
Tenn. R. Civ. P. 56.06.
       On appeal, this Court reviews a trial court‟s grant of summary judgment de novo with
no presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 S.W.2d 408,
412 (Tenn. 1997). In reviewing the trial court‟s decision, we must view all of the evidence in
the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party‟s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim
v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support
only one conclusion, then the court‟s summary judgment will be upheld because the moving
party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,
529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).
                                           Analysis
        The issues in this case involve whether the State was entitled to terminate the contract
with Ms. Scearce for cause and whether Ms. Scearce could be entitled to any compensation
for work that had not been performed under the contract. When a contract is not ambiguous,
its interpretation is a question of law that is appropriate for summary judgment. Bourland,
Heflin, Alvarez, Minor & Matthews, PLC v. Heaton, 393 S.W.3d 671, 674 (Tenn. Ct. App.
2012) (“Questions of contract interpretation are generally considered to be questions of law,
and thus are especially well-suited for resolution by summary judgment.”) (citing Ross
Prods. Div. Abbott Labs. v. State, No. M2006-01113-COA-R3-CV, 2007 WL 4322016, at *2
(Tenn. Ct. App. Dec. 5, 2007), perm. app. denied (Tenn. Apr. 28, 2008)).


                                               5
        “The central tenet of contract construction is that the intent of the contracting parties
at the time of executing the agreement should govern.” Planters Gin Co. v. Fed. Compress
& Warehouse Co., Inc., 78 S.W.3d 885, 890 (Tenn. 2002). The court‟s role in resolving
disputes regarding the interpretation of a contract is to ascertain the intention of the parties
based upon the usual, natural, and ordinary meaning of the language used. Allstate Ins. Co. v.
Watson, 195 S.W.3d 609, 611 (Tenn. 2006); Staubach Retail Servs-Southeast LLC v. H.G.
Hill Realty Co., 160 S.W.3d 521, 526 (Tenn. 2005). In construing a contract, the court is to
determine whether the language is ambiguous. Allstate Ins. Co., 195 S.W.3d at 611; Planters
Gin Co., 78 S.W.3d at 890. If the language in the contract is clear and unambiguous, then the
“literal meaning controls the outcome of the dispute.” Allstate Ins. Co., 195 S.W.3d at 611;
City of Cookeville, TN v. Cookeville Regional Med. Ctr., 126 S.W.3d 897, 903 (Tenn.
2004); Planters Gin Co., 78 S.W.3d at 890. “A contract term is not ambiguous merely
because the parties to the contract may interpret the term in different ways.” Staubach, 160
S.W.3d at 526. Here, neither party argues that the services contract at issue is ambiguous.
Accordingly, we look only to the contract‟s plain language to determine its meaning.
        On appeal, Ms. Scearce does not dispute that the services contract could properly be
terminated for cause in the event that Ms. Scearce violated the terms of the contract,
applicable statutes, rules or regulations, or the “Instructions of the Commissioner of
Commerce and Insurance, or her agents.” Ms. Scearce instead argues that nothing in her
termination letter or the order of the Claims Commission specifically outlines any statutes,
rules, or instructions that Ms. Scearce violated in placing Mr. Sanders‟s name on official
documents to facilitate the approval of his electrical permits. The State contends, however,
that the Claims Commissioner properly found that Ms. Scearce violated the “Instructions of
the Commissioner of Commerce and Insurance, or her agents” by signing Mr. Sanders‟s
name to several official documents without his permission, in violation of the instructions
provided on the documents. The State thus asserts that termination with cause was proper and
that Ms. Scearce is entitled to no compensation beyond that for completed services.
       The record on appeal contains several official documents relating to the PolyOne
Project. It is necessary that these documents be completed prior to the issuance of a non-
standard electrical permit, the type of permit needed for the PolyOne Project. The forms are
required to be signed by both the contractor, Mr. Sanders, and the electrical inspector, Ms.
Scearce. All of the relevant forms contain the following language regarding the signature
requirement:
              It is mutually confirmed by the Contractor and Inspector, as
              evidenced by the signatures below, that the fees and inspections
              itemized above are acceptable to both parties. If additional
              inspections are required, the above fees will still apply. All fees
              regarding this Non-Standard Fee shall be collected by the
                                              6
              Electrical Permit Issue Agent. It is further understood that this
              agreement is not valid until signed by both parties and a permit
              obtained from the issue agent.
Thus, the forms included a contractual element and were to be signed by the contractor to
indicate his or her consent to the terms contained therein.
        On at least two of the documents containing the above language, Ms. Scearce admitted
to filling in Mr. Sanders‟s name in the portion of the form in which the contractor was
required to sign. Ms. Scearce admitted that she did not have Mr. Sanders‟s express
permission to affix his name to the forms and that she most likely did not inform him that she
had done so. Instead, Ms. Scearce testified that she affixed Mr. Sanders‟s name to the forms
upon request from the issuing agent because the non-standard permit could not be processed
without all required information and that doing so would facilitate Mr. Sanders‟s project
without increasing his liability in any way.
       The Claims Commissioner specifically found that Ms. Scearce‟s action in affixing Mr.
Sanders‟s name to the contractual portion of the forms without his consent was in direct
violation of the instructions contained on the form. Specifically, the Claims Commissioner
found:
              [C]ontrary to [Ms.] Scearce‟s deposition testimony, the
              Commission FINDS that she did not just print his name in the
              signature lines of the permit forms. In at least two places, she
              appears to have signed it. While there appears to be nothing
              criminal about her actions whatsoever, signing a form for the
              contractor without his permission (or even printing his name in
              the signature line) was not only poor judgment, but directly
              contrary to the “instructions of the Commissioner of Commerce
              and Insurance, or her agents.”
                     The Commission FINDS that there is no genuine issue of
              material fact regarding whether Claimant filled out the
              aforementioned permit forms without Mr. Sanders‟[s]
              permission or regarding whether such action was contrary to the
              “instructions of the Commissioner of Commerce and Insurance,
              or her agents.” The Commission therefore FINDS that Susan
              Newman Scearce, d/b/a SNS Electric, was fired for cause.

(Internal citations omitted).



                                              7
        In her brief, Ms. Scearce argues that “the State has not provided . . . any specific
„instructions‟ Ms. Scearce received and failed to follow. . . . No specific violations are stated
because none exist.” We respectfully disagree. As discussed above, the forms related to the
PolyOne Project contain specific instructions requiring the signature of the contractor before
the permits may be processed or issued. The forms clearly and unambiguously indicate that
they are promulgated by the Department of Commerce and Insurance. Accordingly, the rules
contained on the forms were appropriately considered “instructions of the Commissioner of
Commerce and Insurance, or her agents.” In her reply brief, however, Ms. Scearce argues
that the instructions contained on the forms were not directed to Ms. Scearce, but instead to
the permit issuing agent. From our review of the language contained on the forms, however,
the directions are not simply directed to the permit issuing agent, but direct the contractor and
the electrical inspector to sign as an affirmance of the terms contained therein. Indeed, there
is no space on the form for the permit issuing agent to sign. Accordingly, the form appears to
direct the contractor and the electrical inspector, rather than the permit issuing agent, to
conform to its directives.
       Furthermore, from the record, we agree with the Claims Commissioner that Ms.
Scearce clearly violated the rules contained on the forms in affixing Mr. Sanders‟s name to
the forms to facilitate processing of the permits, regardless of whether Mr. Sanders‟s name
was printed or signed or whether Ms. Scearce‟s action was ultimately harmful. The forms
promulgated by the Department of Commerce and Insurance clearly provided that the
contractor‟s signature is required to ensure that the contractor agrees to the State‟s
requirements with regard to the issuance of the permits and any associated fees. Despite this
language, Ms. Scearce deprived Mr. Sanders of his right and duty to assent to the terms of the
contract by submitting the forms to the issuing agent without first obtaining Mr. Sanders‟s
permission to do so. Although Ms. Scearce testified without apparent dispute that Mr.
Sanders had previously agreed to the fees that were to be collected (and indeed had already
paid the fees), the fact remains that the forms clearly required the signature of both the
contractor and the inspector. Submitting the forms as if Mr. Sanders had signed, when he in
fact did not, was in violation of the clear instructions of the form. Nothing in the services
contract at issue provides that for cause to exist to justify termination, a violation of any
applicable statutes, rules, or instructions must be done with an improper motive or must cause
harm to a third party.3 The State can and should expect its contractors to follow its

         3
           Although Ms. Scearce urges this Court to recognize that her actions in this case caused no prejudice
to Mr. Sanders, we note that nothing in Ms. Scearce‟s appellate brief can be fairly read to argue that the breach
in this case was immaterial, and therefore, insufficient to justify termination of the contract. In addition, there is
no legal authority contained in Ms. Scearce‟s appellate brief to support an argument that her actions did not
constitute a material breach of the contract. Accordingly, this issue is waived. See Watson v. Watson, 309
S.W.3d 483, 497 (Tenn. Ct. App. 2009) (“The appellate court may treat issues that are not raised on appeal as
being waived.”).
                                                          8
instructions as to how official duties are to be carried out. Failing to do so, without sufficient
justification, is sufficient in this particular case to support the termination of the services
contract. Here, Ms. Scearce failed to comply with the Commissioner of Commerce and
Insurance‟s instructions in submitting the forms without obtaining Mr. Sanders‟s consent to
the terms contained therein; as such, Ms. Scearce violated the express terms of the services
contract and termination for cause was appropriate.
        Ms. Scearce next argues that the Claims Commission erred in relying on the violation
of an instruction from the Commissioner of Commerce and Insurance when the termination
letter received by Ms. Scearce indicates that her termination was for violations of regulations.
From our review of the termination letter, Ms. Scearce‟s termination is based upon her action
in “violating terms and conditions specified in Section A.2.b. and administrative rules
(Chapter 0780-02-01-.04(1)(a) and (b)).” (Emphasis added). Although there is no allegation
in this case that Ms. Scearce violated any applicable administrative rules, Section A.2.b
clearly requires that Ms. Scearce conduct herself “in accordance with all Instructions of the
Commissioner of Commerce and Insurance, and her agents.” Accordingly, the termination
letter provides notice that the contract was being terminated on the basis of Ms. Scearce‟s
failure to follow applicable instructions.
        Based on the foregoing, we conclude that the Claims Commissioner did not err in
granting summary judgment to the State on the ground that the undisputed facts show that the
services contract was terminated for cause. The plain language of the services contract
provides that upon a termination for cause, Ms. Scearce will be entitled to nothing more than
fair compensation for completed services, which the parties agreed amounted to $6,500.00.
Any issue regarding any damages due under the contract had it been terminated improperly
is, therefore, pretermitted.
                                          Conclusion
      The judgment of the Tennessee Claims Commission is affirmed, and this cause is
remanded for all further proceedings as may be necessary and are consistent with this
Opinion. Costs of this appeal are taxed to Appellants SNS Electrical Inspections, P.C. and
Susan Newman Scearce, and their surety.



                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




                                                9
