RICHARD H. DINKINS, J.
Plaintiff appeals the trial court's grant of summary judgment to defendants on her claims for statutory procurement of breach of contract, common law inducement of breach of contract, and tortious interference with business relationship. Finding that plaintiff failed to establish one or more essential element of each claim, we affirm the trial court's ruling.
BACKGROUND
The Cumberland at Green Hills ("Cumberland") is an assisted living facility owned and operated by Brookdale Senior Living, Inc. ("Brookdale"). The Cumberland rents apartments to elderly individuals and permits its residents to enter into independent contracts with third parties for their care.
On June 2, 2009, Michelle Brown filed a complaint against Brookdale, and the Cumberland's Wellness Director, Katherine Diehl, and Executive Director, Becky Hendricks. Ms. Brown alleged that she had entered into a "caregiver services contract" with Gerald Johnson, a resident of the Cumberland who suffered from Alzheimer's disease, and began acting as a "sitter" for him sometime in March 2009. The complaint alleged that on or about April 13 Ms. Diehl and Ms. Hendricks told Ms. Brown that she could no longer provide services for Mr. Johnson, forced her out of the building, and sent correspondence to Mr. Johnson's attorney-in-fact that led to termination of the contract between Mr. Johnson and Ms. Brown. The complaint asserted claims for unlawful procurement of breach of contract in violation of Tenn. Code Ann. § 47-50-109, common law inducement of breach of contract, intentional interference with a business relationship, and civil conspiracy; the complaint sought compensatory, treble, and punitive damages. The actions of Ms. Diehl and Ms. Hendricks were imputed to Brookdale under the doctrine of respondeat superior.
Defendants answered the complaint and, on October 15, 2010, filed a motion for summary judgment, supported by a statement of undisputed facts and sixteen exhibits, including, inter alia, the depositions of Ms. Brown and Ms. Charlene Wilson, excerpts from the depositions of Ms. Diehl and Ms. Hendricks, and various of the parties' discovery responses. On December 13, Ms. Brown filed a response to defendants' memorandum of law, a response to the statement of undisputed facts, and her own statement of undisputed facts. Ms. Brown subsequently filed an amended memorandum and an amended statement of undisputed facts, as to which defendants responded.
A hearing was held on the motion for summary judgment and, on February 9, 2011, the court entered an order dismissing the case. The court found that summary judgment was proper on the civil conspiracy claim "given the intracorporate merging of identities of Defendants and Plaintiff's admission that the individual defendants were acting within the scope of their respective employments with Brookdale at all relevant times." The court granted summary judgment on the claims for procurement or inducement of breach of contract because Ms. Brown did not prove two elements of the claims: (1) that there was a legal contract and (2) that there was a breach of contract.
Ms. Brown appeals, asserting that the trial court improperly granted the motion for summary judgment. She contends that, with respect to her claims for procurement or inducement of breach of contract, the trial court erred when it found there was not a legal contract between Ms. Brown and Mr. Johnson; she also contends that the court erred in its finding that Ms. Brown could not prove that defendants had an improper means or motive or prove damages on her intentional interference with a business relationship claim.
A trial court's decision on a motion for summary judgment enjoys no presumption of correctness on appeal. Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005); BellSouth Adver. & Publ. Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 284 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000). We review the summary judgment decision de novo as a question of law. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004); Staples v. CBL & Assoc., 15 S.W.3d 83, 88 (Tenn. 2000). In our review, we consider the evidence presented at the summary judgment stage in the light most favorable to the non-moving party, and we afford that party all reasonable inferences. Draper, 181 S.W.3d at 288; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). If there is a dispute as to any material fact or any doubt as to the conclusions to be drawn from that fact, the motion must be denied. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).
Ms. Brown asserted claims against defendants for the common law tort of inducement of breach of her contract and unlawful procurement of breach of contract in violation of Tenn. Code Ann. § 47-50-109, which is the statutory embodiment of the common law tort. Polk & Sullivan, Inc. v. United Cities Gas Co., 783 S.W.2d 538, 542 (Tenn. 1989) (citing Emmco Ins. Co. v. Beacon Mutual Indemnity Co., 322 S.W.2d 226, 231 (Tenn. 1959)). In order to prevail on such claims, a plaintiff must prove that there was a legal contract of which the wrongdoer was aware, that the wrongdoer maliciously intended to procure or induce a breach, and that as a proximate result of the wrongdoer's actions, a breach occurred that resulted in damages to the plaintiff. Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 822 (Tenn. 1994) (citing Polk & Sullivan, Inc. v. United Cities Gas Co., 783 S.W.2d 538, 543 (Tenn. 1989)). While punitive damages are available to a successful plaintiff in a common law tort action, Tenn. Code Ann. § 47-50-109 provides for an award of treble damages.
The instrument upon which Ms. Brown bases her contract claims is a document she variously refers to as an "independent contractor's agreement" or a "caregiver service contract" (the "Agreement").
A contract is a result of a meeting of the minds of the parties who mutually assent to its terms, is based upon a sufficient consideration, is free from fraud or undue influence, not against public policy, and is sufficiently definite to be enforced. Johnson v. Cent. Nat. Ins. Co. of Omaha, Neb., 356 S.W.2d 277, 281 (Tenn. 1962). The Agreement does not identify the parties to the Agreement, does not name the recipient of the services, and the only signature on the Agreement purports to be the signature of a "Charlene Wilson." Ms. Wilson, Mr. Johnson's sister-in-law, however, testified in her deposition that she did not sign the Agreement, did not recognize the signature, and was not the attorney-in-fact for Mr. Johnson. Ms. Brown admitted in response to defendants' statement of undisputed facts that Lisa Manning, Mr. Johnson's daughter, signed Ms. Wilson's name on the Agreement.
We also note that, in Ms. Brown's responses to defendants' first set of interrogatories, which were filed as an exhibit to defendants' motion for summary judgment, Ms. Brown admitted the following:
Because breach or termination is an essential element of her statutory and common law claims for procurement or inducement of breach of contract, Ms. Brown's admission that the Agreement was not breached or terminated by Mr. Johnson was fatal.
Accordingly, the trial court did not err in granting summary judgment to defendants on the statutory and common law claims for procurement or inducement of breach of contract.
Ms. Brown contends that defendants interfered with her business relationship with Mr. Johnson when they "forced" her from the Cumberland. Ms. Brown asserts that the trial court erred in finding that she could not prove that defendants had an improper motive or means and when it held that she could not prove damages. Defendants assert that Ms. Brown was asked to leave the Cumberland because she did not have insurance and because she had yelled at a resident.
The tort of intentional interference with a business relationship was expressly recognized in Tennessee in Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691 (Tenn. 2002). The court stated:
Trau-Med of America, Inc., 71 S.W.3d at 701 (internal citations removed). Whether a defendant acted improperly or possessed an improper motive is "dependent on the particular facts and circumstances of a given case," and as a result there is no precise, all-encompassing definition of the term improper. Examples of improper means include
Id. To prove improper motive, the plaintiff must "demonstrate that the defendant's predominant purpose was to injure the plaintiff." Id. at note 5; see Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 307-08 (Utah 1982).
When a motion for summary judgment is made, the moving party has the burden of showing that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. The moving party may accomplish this by either: (1) affirmatively negating an essential element of the non-moving party's claim; or (2) showing that the non-moving party will not be able to prove an essential element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
In support of their motion for summary judgment, defendants filed, inter alia, Defendants' Statement of Undisputed Facts and the depositions of Ms. Brown, Ms. Hendricks, and Kendall Whitsey, who was an employee of the Cumberland. Ms. Hendricks testified that, in accordance with the Cumberland's policy, Ms. Brown was required to have liability insurance because she was "employing staff and scheduling staff around the clock."
Plaintiff's Responses to Defendants' Statement of Undisputed Facts establishes that, on April 4, 2009, Ms. Brown submitted an insurance application and check to Imperial Insurance Agency. Initially, Imperial provided a certificate to Brookdale to show that Ms. Brown had the required liability insurance. However, on April 15, Imperial sent a fax to the Cumberland indicating that Ms. Brown did not have insurance coverage. Imperial's records reflect that Ms. Brown's insurance coverage was canceled because Ms. Brown failed to pay her insurance premium. Imperial's records further reflect that the check written by Ms. Brown to Imperial on April 4, 2009 was written from a closed account.
Ms. Whitsey testified that on one occasion she observed Ms. Brown yelling at Mr. Johnson and his wife in the hallway of the Cumberland, and that she reported the incident to Ms. Diehl. Ms. Hendricks further testified that on the same day she learned that Ms. Brown did not have insurance, and in light of the report that Ms. Brown had yelled at residents, she asked her to leave the Cumberland.
The materials filed by defendants support their assertion that Ms. Brown was asked to leave because she did not have liability insurance and because she had been observed yelling at a resident. The defendants' stated motives in asking Ms. Brown to leave the Cumberland were not improper as that term has been defined in claims of tortious interference with business relationships. See Trau-Med of America, Inc., 71 S.W.3d at 701. The materials filed by defendants affirmatively negated an essential element of Ms. Brown's claim.
Once the moving party affirmatively negates an essential element, "[t]he burden of production then shifts to the nonmoving party to show that a genuine issue of material fact exists." Id. at 5 (citing Byrd, 847 S.W.2d at 215). Accordingly, Ms. Brown was required to demonstrate a genuine issue of material fact as to whether defendants' motive or means were improper.
In her response to the motion, Ms. Brown asserted that she was "fired" because "she talked too much and was not nice to people outside, even though she did wonderful work" and because "of her race and the fact that [she] called the corporate office on Ms. Hendricks and Ms. Diehl."
The portion of Ms. Wilson's deposition cited by Ms. Brown states:
The letter attached to Ms. Winn's affidavit states in its original form:
In order to survive a motion for summary judgment, the response must set forth specific facts creating a genuine issue for resolution by the trier of fact; the facts relied upon must be admissible at trial. Byrd, 847 S.W.2d at 215-16. Because the goal of summary judgment is to prevent unnecessary trials, permitting an opposition to a motion based on inadmissible evidence would undermine the goal of the summary judgment process. Id. at 216. Further, Tenn. R. Civ. P. 56.06 states, in pertinent part:
(emphasis added).
In her deposition, Ms. Wilson testified what she was told by the daughters of Mr. Johnson which, in turn, was what the daughters were purportedly told by Ms. Diehl and Ms. Hendricks. Ms. Brown relied on the testimony to support her theory as to the improper motive of defendants in asking Ms. Brown to leave the premises. The cited testimony constituted hearsay, which is generally inadmissible in the absence of an exception. Tenn. R. Evid. 801(c), 802. There were no facts set forth in the response which would render the testimony admissible. Accordingly, the testimony could not be relied upon to establish any facts which would create a genuine issue of fact for trial. Byrd, 847 S.W.2d at 215-16.
With regard to Ms. Winn's letter, Tenn. R. Civ. P. 56.06 limits the extent to which we may consider the allegations contained therein. First, the letter contains a substantial amount of hearsay. Ms. Winn's recitation of statements made by an unnamed administrator, statements made by Ms. Brown to Ms. Winn, and any purportedly harassing statements made by "those in authority" to Ms. Brown constitute hearsay and would be inadmissible at trial. Tenn. R. Evid. 801(c). Accordingly, we do not consider them in our analysis. Tenn R. Evid. 802; Byrd, 847 S.W.2d at 215-16.
There is also a significant issue of Ms. Winn's personal knowledge relative to certain matters contained in the letter, as required by Tenn. R. Evid. 602. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Id. Ms. Winn's position as a sitter for a resident—but not an employee of Cumberland—does not, without more, establish the personal knowledge necessary to testify relative to the Cumberland's policies and procedures and the application of those policies and procedures to persons other than herself. Further, the letter does not set forth the specific facts upon which Ms. Winn bases her conclusions that Ms. Brown "compl[ied]" with what Ms. Brown had been asked to do by Ms. Hendricks and that there was "bias" or "retaliation" against Ms. Brown, and, again, no facts to show that she has personal knowledge of these matters. Accordingly, these statements were not admissible and cannot be relied upon by Ms. Brown to establish genuine issues of fact for trial.
As further evidence of defendants' alleged improper means or motive, Ms. Brown relies on the statements in Ms. Winn's letter that Ms. Winn was a "private duty caregiver," and that liability insurance was "optional." The statements in the letter, however, do not raise a genuine issue of material fact as to whether the defendants' motive or means were improper; rather, they corroborate to a degree the reasons given by defendant for asking Ms. Brown to leave. Ms. Hendricks testified that "private duty sitters" are not subject to the insurance requirement, whereas "service providers" like Ms. Brown, who staffed and scheduled two additional individuals to provide services for Mr. Johnson 24 hours a day, were required to maintain liability insurance.
Ms. Brown did not meet her burden in responding to the motion for summary judgment; specifically, she failed to create a genuine issue of material fact as to whether the means or motives of the defendants for asking her to leave the premises was improper. As a consequence, her contention that the court erred when it held she could not prove damages is moot.
For the foregoing reasons, the judgment of the Chancery Court for Davidson County is affirmed.
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations omitted).
