author: DAVID R. FARMER, J.,

text:
    Mary O. McINTOSH v. M.A. BLANTON, III, M.D., et al.
    Court of Appeals of Tennessee, at Jackson.
    July 22, 2004 Session.
    Aug. 19, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 24, 2005.
    Michael W. Whitaker, Covington, Tennessee and Charles Kelly, Dyersburg, Tennessee, for the Appellant, Mary 0. McIntosh.
    Timothy G. Wehner and Craig P. Sanders, Jackson, Tennessee, for the appellee, M.A. Blanton, III, M.D.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

Plaintiff appeals the award of summary judgment to defendant physician based on the statute of limitations for medical malpractice actions. We reverse and remand for further proceedings.

On April 5, 2000, Mary O. McIntosh (Ms. McIntosh) filed a complaint for medical malpractice against Baptist Memorial Hospital-Union City (“the Hospital”) and M.A. Blanton, III, M.D. (Dr. Blanton). The trial court awarded summary judgment to the Hospital on September 5, 2000, and to Dr. Blanton on October 15, 2003. The court’s award of summary judgment to Dr. Blanton was based on a finding that Ms. McIntosh’s action was barred by the one-year statute of limitations for medical malpractice actions as codified at Tennessee Code Annotated § 29-26-116(a) and § 28-3-104. Ms. McIntosh appeals the award of summary judgment to Dr. Blanton, asserting her cause of action was filed within one year of discovery of the injury. We reverse the award of summary judgment based on the statute of limitations and remand for further proceedings.

Issues Presented

Ms. McIntosh presents the following issues, as we re-state them, for review by this Court:

(1) Whether the trial court erred by dismissing the cause of action based on the statute of limitations where Ms. McIntosh filed it within one year of discovery of her injury.
(2) Whether Dr. Blanton is estopped from raising the statute of limitations as a defense by making misleading statements to Ms. McIntosh.

Standard of Review

Summary judgment is appropriate only when the moving party can demonstrate that there are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The party moving for summary judgment must affirmatively negate an essential element of the nonmoving party’s claim, or conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).

When a party makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion that the non-moving party has no evidence does not suffice to entitle the moving party to summary judgment. Id. In determining whether to award summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000). The court should award summary judgment only when a reasonable person could reach only one conclusion based on the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at 588. We review an award of summary judgment de novo, with no presumption of correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002).

Analysis

The pivotal issue in this appeal is the application of the discovery rule to Ms. McIntosh’s action. The Tennessee Code provides:

(a)(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.
(2) In the event the alleged injury is not discovered within such one (1) year period, the period of limitation shall be one (1) from the date of such discovery.

Tenn.Code Ann. § 29-26-116(a)(l)(2)(2000).

Prior to the adoption of the discovery rule by the legislature, medical malpractice actions were subject to the same one-year statute of limitations applicable to other negligence actions. Stanbury v. Bacardi, 953 S.W.2d 671, 674 (Tenn.1997). This required that the claim be filed within one year of the date of the negligent act causing injury. Id. Under the discovery rule, however, the determination of when the statute of limitations begins to run requires a determination of when the plaintiff had sufficient knowledge that she had sustained an injury. Id. at 678. The inquiry does not require that the plaintiff had knowledge that a “breach of the appropriate legal standard” had occurred. Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn.1994). The statute of limitations begins to run when the plaintiff is “aware of the facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct,” and the plaintiff knows the identity of the person who engaged in the conduct. Id. at 656-57 (emphasis added). Thus, the statute does not begin to run until the plaintiff had “sufficient information” to put him on notice that he has suffered an injury and that the injury was caused by a wrongful act. Id. at 658. The determination of when a reasonable person should know that his injury was caused by some wrongful or negligent act is generally a question for the trier of fact. See, e.g., McClellan v. Stanley, 978 S.W.2d 943, 945 (Tenn.Ct.App.1998).

In the case before us, it is undisputed that in August 1995, Dr. Blanton performed successful endoscopic carpal tunnel surgery on Ms. McIntosh’s right wrist. This surgery gave Ms. McIntosh immediate relief. On September 8, 1998, Dr. Blanton performed endoscopic carpal tunnel surgery on Ms. McIntosh’s left wrist. This surgery was unsuccessful, however. Ms. McIntosh’s condition did not improve, and she suffered a loss of feeling in two fingers. On February 4,1999, Dr. Blanton performed a second, “open” surgery. This surgery also was performed without complication, but Ms. McIntosh continued to experience postoperative loss of sensation and intense pain which progressed up her left arm.

In her complaint, Ms. McIntosh asserts that her ulnar and radial nerves were impaired during the two procedures, causing constant pain and “drawing” of the fingers. She further asserts that she discovered “that the problem to her left hand was of a surgical nature and that negligence was present in the surgical procedure in the conversations with the defendant ... on April 5, 1999, and further in conversations with an evaluation physician on April 20, 1999, all within one (1) year from the date of the filing of th[e] Complaint[.]”

Dr. Blanton, however, asserts, that he explained the cause of the failure of the first, endoscopic procedure (i.e. that he had cut the palmar fascia instead of the transverse carpal ligament) to Ms. McIntosh during a post-operative visit on February 12, 1999. He further submits that he told Ms. McIntosh that, although he could not determine the precise cause of her pain after the second procedure, he believed it could be a result of one or both of the surgeries.

On April 5, 1999, Dr. Blanton referred Ms. McIntosh to physicians at the Union City Semmes-Murphy Clinic for further evaluation. In her brief to this Court, Ms. McIntosh refers to her affidavit of August 29, 2003, in which she submits that it was not until meeting with another physician, Dr. Muhlbauer, on April 20, 1999, that she discovered that her injury was caused by some wrongful or negligent act. She submits that Dr. Blanton explained the risks, benefits, and potential complications of the surgery to her, and that she understood that the surgeries might not be successful. She contends that, although Dr. Blanton indicated the surgeries might be the cause of her pain, he presented it as part of the ordinary risks and complications of the procedures. She submits that she had no reason to believe Dr. Blanton was negligent or did something wrong until she met with Dr. Muhlbauer on April 20, 1999. Ms. Blanton asserts: “Of all those who saw or did anything up to that point, Dr. Muhlbauer was the first to give me an opinion Dr. Blanton’s negligent acts, not ‘risks or complications from surgery,’ could be the cause of my hand’s condition.”

We note, however, that the record also contains an earlier affidavit of Ms. McIntosh made on November 30, 2000. In her affidavit of November 2000, Ms. McIntosh states:

[i]n April 5, 1999,1 first learned that the problems surrounding the pain and numbness in my hand was probably caused by a surgical error. I was advised of this fact by my treating physician, M.A. Blanton, III, M.D.

Thus, on April 5, 1999, Ms. McIntosh was aware that her injury was the result of some surgical error, although she arguably was not aware that Dr. Blanton’s conduct may have been wrongful or negligent.

Ms. McIntosh further argues that Dr. Blanton had a “reassuring attitude” and that he “always kept discussions in the light of normal, non-negligent risks.” She further submits, that in light of her age (77) and education (through the 11th grade), considering all the risks, and Dr. Blanton’s reassuring manner, she had no reason to believe he was negligent. Ms. McIntosh’s argument, as we perceive it, is that although she knew something was wrong with the surgical procedure, that it had failed, she did not know the failure was caused by wrongful conduct on the part of Dr. Blanton until after visiting Dr. Muhlbauer on April 20, 1999.

Dr. Blanton’s medical notes regarding his discussions with Ms. McIntosh state that on February 12, 1999, he “went over the cause for failure of the primary endoscopic release, and ... told her that [he] anticipated a good recovery at this point.” The February notes state that Dr. Blanton advised Ms. McIntosh to return in one month. The notes do not indicate, however, precisely what Dr. Blanton told Ms. McIntosh regarding the nature of the failure of the endoscopic procedure. Further, we note that in September 1998, Dr. Blan-ton advised Ms. McIntosh that her condition might not be fully relieved by the endoscopic procedure, and that further surgery might be required.

Dr. Blanton’s notes from March and April, 1999, indicate that although Dr. Blanton believed, as he indicated to Ms. McIntosh, that the problem was related to the surgery, he did not indicate that there had been any surgical error per se. His March 1999 notes state:

The story [Ms. McIntosh’s] sounds a little like there may be degree of reflex sympathetic dystrophy involved here .... my belief is that we are going to have to go with a nerve conduction study and the EMG of both of the ulnar and the median nerves. I can’t get past this distribution .... this could be a double crush syndrome. We will have to delay and see what develops here.

Dr. Blanton’s April 5, 1999, and April 22, 1999, notes also offer no indication that he communicated to Ms. McIntosh that he believed he had erred. The April 22 notes, made after Ms. McIntosh met with Dr. Muhlbauer, state:

My impression, at the time of open surgery was, that the ulnar nerve was intact, yet it clearly is dysfunctional now with atrophy of the first dorsal interos-seous and virtual complete sensory loss.... I gave her some tips on rehabilitation using the sponge and warm water, etc.... I told her the best thing I thought we could do now is wait until I got the report back from Dr. Muhl-bauer’s office.

Dr. Blanton’s later notes, made on May 7, state: “I saw Mary McIntosh today and told her that due to the concern over liability issues that I felt I had not given her my best advice at the time of our last meeting....”

Having reviewed the record, and viewing the evidence in the light most favorable to the nonmoving party, we believe a genuine issue of material fact exists regarding when Ms. McIntosh reasonably was on notice that her injuries were caused by wrongful conduct and not merely by an unsuccessful procedure. This is a question to be resolved by the trier of fact.

Ms. McIntosh also contends that Dr. Blanton is estopped from asserting the statute of limitations as a defense where he misled her into believing the injuries were not caused by negligence, but were part of the normal risks of the procedure. Ms. McIntosh’s argument, as we perceive it, is that she could not have discovered that she had suffered an injury as a result of wrongful conduct because Dr. Blanton led her to believe that her injury was part of the normal risks associated with surgical procedures. This is not a discrete issue, but an element in the consideration of when, considering all the circumstances, Ms. McIntosh reasonably was on notice that her injuries were caused by alleged wrongful conduct.

Holding

In light of the foregoing, we reverse the trial court’s award of summary judgment to Dr. Blanton based on the statute of limitations. We remand this case to the trial court for further proceedings consistent with this opinion. Cost of this appeal are taxed to the Appellee, M.A. Blanton, III, MD, for which execution may issue if necessary.


source: Caselaw Access Project

license: Public Domain

text:
    Helen GLEASON v. Daniel P. GLEASON, III.
    Court of Appeals of Tennessee, at Nashville.
    Aug. 4, 2004 Session.
    Aug. 27, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 31, 2005.

      Thomas F. Mink, II and Keith W. Blair, Nashville, Tennessee, for the appellant, Daniel P. Gleason, III.
    G. Sumner R. Bouldin, Jr., Murfrees-boro, Tennessee, for the appellee, Helen Gleason.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

The trial court awarded Petitioner alimony arrearages of $7,250 plus interest. Respondent appeals, asserting the statute of limitations and the defense of laches. We modify the judgment of the trial court and remand.

This appeal is from an action to collect back alimony. Helen Gleason (Ms. Gleason) and Daniel P. Gleason, III (Mr. Gleason) were divorced in 1985 and Ms. Gleason was awarded alimony in futuro of $50 per month and child support. In 1989, Ms. Gleason filed a petition for contempt and to collect child support and alimony ar-rearages. On July 19, 1989, the trial court entered an agreed order reducing to judgment an alimony arrearage of $550. Mr. Gleason failed to fulfill his alimony obligation, and On June 8, 2001, Ms. Gleason filed her third petition for contempt. In her petition, Ms. Gleason submitted Mr. Gleason was in arrears of $7,200, and that the arrearage continued to accrue at the rate of $50 per month. In his answer to the petition, Mr. Gleason asserted the defenses of, inter alia, the statute of limitations and laches. He also counter-petitioned for modification of the March 1985 award of alimony in futuro, asserting the award should be terminated based on lack of need.

The cause was heard in April 2003. The trial court found Mr. Gleason in contempt, and awarded Ms. Gleason $7,250 for alimony arrearages. The trial court additionally awarded Ms. Gleason interest accruing at the statutory rate from and after the date on which each payment became due. At the time of the hearing, interest totaled $6,853.64. The trial court found Ms. Gleason was not guilty of laches. It also found there had been no material change in circumstances warranting modification of the alimony award and, accordingly, denied Mr. Gleason’s counter-petition. Mr. Gleason appeals.

Issues Presented

Mr. Gleason raises the following issues for review by this Court:

(1) Whether the trial court erred in not applying the statute of limitations of ten (10) years on an award of alimony in futuro;
(2) Whether the trial court erred in not applying the defense of laches for the undue delay in Helen Gleason’s pursuit of alimony arrearage payments for a period of twelve (12) years;
(3) Whether the trial court erred in not granting the counter-claim of Daniel Gleason to end the alimony in futuro obligations due to the change in circumstances of Ms. Gleason and her testimony as to her need for said alimony.

Standard of Review

To the extent the issues on appeal involve questions of fact, our review of the trial court’s ruling is de novo with a presumption of correctness. Tenn. R.App. P. 13(d); Sullivan v. Sullivan, 107 S.W.3d 507, 509 (Tenn.Ct.App.2002). We may not reverse the trial court’s factual findings unless they are contrary to the preponderance of the evidence. Id. at 510. With respect to the court’s legal conclusions, however, our review is de novo with no presumption of correctness. Id.

Analysis

As a preliminary matter, we first address Ms. Gleason’s assertion that, because Mr. Gleason has filed a statement of the evidence in lieu of a transcript, “it is conclusively presumed on appeal that the findings of fact made by the trial court are supported by the evidence, and must be accepted as true by the appellate court.” Ms. Gleason cites In re Rockwell, 673 S.W.2d 512 (Tenn.Ct.App.1983), for the proposition that “[t]he Court must presume that every fact admissible under the pleadings either was found or should have been found in Appellee’s favor.”

In Rockwell, we stated, “[flurther, in the absence of a transcript or statement of the evidence, we must conclusively presume that every fact admissible under the pleadings was found or should have been found favorably to the appellee.” In Re Rockwell, 673 S.W.2d 512, 516 (Tenn.Ct.App.1983)(citing Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308 (1949); Kyritsis v. Vieron, 53 Tenn.App. 336, 382 S.W.2d 553 (1964))(emphasis added). Under Rule 24(c) of the Tennessee Rules of Appellate Procedure, however, a statement of the evidence may be filed in lieu of a transcript. Any differences between the parties regarding the statement of the evidence may be submitted to the trial court for a determination of accuracy. Tenn. R.App. P. 24(c), 24(e). Absent extraordinary circumstances, the determination of the trial court is conclusive. Tenn. R.App. P. 24(e).

In this case, Mr. Gleason submitted a statement of the evidence to the trial court. Ms. Gleason submitted objections to Mr. Gleason’s statement, and the trial court corrected Mr. Gleason’s statement to “accurately reflect the testimony presented at trial.” Clearly, the parties and the trial court followed the procedure prescribed in Rule 24. Ms. Gleason’s assertion that we must presume that every fact under the pleadings was found favorably to the Appellee by the trial court is without merit.

We next address whether the trial court erred by not applying the ten-year statute of limitations found at Tennessee Code Annotated § 28-3-1KX2). Ms. Gleason agrees that the ten-year statute of limitations applies to alimony awards, but submits that there is no way to determine whether the statute was implicated in the trial court’s judgment. She asserts, “[n]o indication is contained in the court’s Order as to what period of time the arrearage encompassed.” We disagree.

The right to enforce an alimony award accrues as each installment becomes due. Gafford v. Gafford, No. 01-A-01-9404-CV00178, 1994 WL 687077, at *4 (Tenn.Ct.App. Dec.9, 1994) (no perm. app. filed). The statute of limitations begins to run from the date each installment is due for payment. Id. In this case, the parties’ 1985 divorce decree ordered Mr. Gleason to pay periodic payments of $50 per month to Ms. Gleason. The statute of limitations began to run on each payment as it became due, and the statute bars enforcement of each payment after the ten-year limitations period has run. Accordingly, the trial court erred in not applying the ten-year statute of limitations to bar enforcement of monthly installments due pri- or to June 8, 1991. Additionally, although Ms. Gleason is entitled to interest on the arrearage, interest does not accrue on an installment of alimony until the date the payment is due. Pertew v. Pertew, No. 03A01-9711-CH-00505, 1999 WL 486917, at * 10-11 (Tenn.Ct.App. July 13,1999) (no perm. app. filed) (citing West American Ins. Co. v. Montgomery, 861 S.W.2d 230, 232 (Tenn.1993)). Thus Ms. Gleason is entitled to simple interest, without compounding, on alimony installments due on and after June 8,1991. See id.

We turn next to whether the trial court erred by not applying the doctrine of laches to bar Ms. Gleason’s claim. Generally, the doctrine of laches applies to actions not governed by a statute of limitations. Dennis Joslin Co. v. Johnson, 138 S.W.3d 197, 201 (Tenn.Ct.App.2003). It may be applied, however, even where the action is governed by a statute of limitations when the plaintiff is guilty of gross laches. Id. Additionally, laches is based on a finding of inexcusable, negligent, or unreasonable delay on the party asserting the claim which results in prejudice to the defending party. Archer v. Archer, 907 S.W.2d 412, 416 (Tenn.Ct.App.1995). It is an equitable defense which requires the finder of fact to determine whether it would be inequitable or unjust to enforce the claimant’s rights. Id.

Mr. Gleason asserts Ms. Gleason made no effort to enforce her right to alimony for a period of over 12 years, and that he was prejudiced in that a substantial award, plus interest, has now been adjudicated against him. The trial court, however, determined Ms. Gleason was not guilty of laches. The trial court found Mr. Gleason’s testimony that the parties had agreed to forgive alimony obligations to be not credible. The trial court further determined that no prejudice had resulted as a result of Ms. Gleason’s delay. Further, the statement of the evidence states that Ms. Gleason has resided in the same home since the parties were divorced in 1985. The statement further provides that Ms. Gleason testified that she did not pursue alimony earlier because Mr. Gleason already was refusing to pay child support and medical bills and because, for a substantial period of time, she did not know his whereabouts.

In light of the record, we do not believe gross laches exists in this case which would justify restricting the statutory limitations period. In this case, there has been no loss of evidence or witnesses, no change in the party’s rights, no change in the value of the alimony award over time which would prejudice Mr. Gleason. Further, we accord great deference to the trial court’s finding that Mr. Gleason’s testimony regarding the parties’ forgiving of the alimony award was not credible. See, e.g., In re Adoption of 44 S.W.3d 41, 53 (Tenn.Ct.App.2000).

We finally turn to whether the trial court erred by refusing to modify the 1985 award of alimony. An award of alimony may be modified upon a showing of a substantial and material change of circumstance which warrants modification. Wright v. Quillen, 83 S.W.3d 768, 772 (Tenn.Ct.App.2002). The determination of whether modification of an alimony award is warranted is factually driven and requires a balancing of many factors. Id. Accordingly, we give wide latitude to a trial court’s determination regarding a modification of alimony. Id. Having reviewed the record in this case, we cannot say the evidence preponderates against the trial court’s determination that there has been no substantial and material change in circumstances which would warrant modification of the 1985 alimony award.

Holding

In light of the foregoing, we affirm the trial court’s judgment as modified. Under the statute of limitations found at Tennessee Code Annotated § 28-3-110(2), Ms. Gleason may not assert a claim for alimony installments due more than ten years prior to the filing of her petition on June 8, 2001. We affirm the award of alimony installment payments of $50 per month due on and after June 8, 1991. We additionally affirm the award to Ms. Gleason of simple interest, without compounding, on payments due on and after June 8, 1991. We remand this cause for modification of the judgment consistent with this opinion. Ms. Gleason asks this Court to find Mr. Gleason’s appeal frivolous and requests attorney’s fees on appeal. In light of our holdings on the issues presented, we decline. Costs of this appeal are taxed one-half to the Appellee, Helen Gleason, and one-half to the Appellant, Daniel P. Gleason, III, and his surety, for which execution may issue if necessary.

      . The Code provides, in relevant part: The following actions shall be commenced within ten (10) years after the cause of action accrued:
      (2) Actions on judgments and decrees of courts of record of this or any other state or government!.] Tenn.Code Ann. § 28-3-110(2)(2000).


author: HOLLY M. KIRBY, J.,

text:
    Ted FOX, Director of Public Works, A Division of Shelby County Government, and Shelby County Government v. Thomas H. MILES and Shelby County Civil Service Merit Board.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 15, 2003 Session.
    Feb. 9, 2004.
    Permission to Appeal Granted by Supreme Court Sept. 7, 2004.
    Motion to Voluntary Dismiss Case Granted March 21, 2005.

      Eugene C. Gaerig, Memphis, Tennessee, for the appellant Ted Fox, Director of Public Works, a Division of Shelby County Government, and Shelby County Government.
    Earle J. Schwarz, Memphis, Tennessee, for the appellees Thomas H. Miles.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This is an employment case. The employee worked for the county. The employee’s county supervisor directed the employee to submit a request for overtime pay from the county for services rendered to a local university during his off hours. In addition, the employee’s county supervisor pressured the employee to perform investigative services for the county, outside of his normal duties. The employee received payment for the investigative services, in violation of a county charter provision proscribing conflicts of interest. As a result, the employee was terminated. The employee appealed his termination to the county civil service merit board. The merit board reversed the employee’s termination and ordered his reinstatement. The county appealed to the chancery court, which affirmed the reinstatement. We reverse and remand, finding that the merit board’s reinstatement of the employee violated a county charter provision which required that the employee be terminated for the conflict of interest.

Respondent/Appellee Thomas H. Miles began his employment with Shelby County in 1996 as the Shelby Farms Range Master. As Range Master, Miles was responsible for supervising activities at the Shelby Farms gun range. Miles’s supervisor was Tim Martin (“Martin”), and Martin reported to Petitioner/Appellant Ted Fox (“Fox”), the Shelby County Director of Public Works.

Miles’s employment was subject to the Shelby County Charter, as well as to the Shelby County Employee Handbook. Section 5.08(A) of the Shelby County Charter, entitled “Conflict of Interest,” provides:

No officer or employee of the county, whether elected or appointed, shall in any manner whatsoever be interested in or receive any benefit from the profits of [or] emoluments of any contract job, work or service for the county.... [N]or shall there be received, directly or indirectly, any part of any fee, commission, or other compensation paid by ... the county....

Thus, County employees or officers, whether elected or appointed, were proscribed from entering into contracts with the County. Section 5.08(C) is the penalty provision: “Any officer or employee of the county who willfully conceals any such interest or violates any of the provisions of this section shall forfeit his or her office.” Section 3.03(N) of the Charter vests in the county mayor the power to enter Shelby County into contracts. Contracts for professional services are governed by Shelby County purchasing procedure CA 020, which requires department heads to submit requests for professional services to a separate administration, which in turn must bid out the work. A committee reviews the bids and submits a recommendation to the county mayor. The Shelby County Employee Handbook includes a list of major offenses, warranting a high level of disciplinary action. The list includes “[mjisappropriation, destruction, theft and/or conversion of County property” and “[f]alsification of any information required by the County.”

To supplement his income, in his off hours, Miles, a licensed private investigator, operated an investigative service under the names Hawk Security Company and Hawk Equipment Company (collectively “Hawk Security”). On two occasions, in late 1997 and again in 1999, Martin directed Miles, doing business as Hawk Security, to perform two separate investigations for Shelby County. Martin directed Miles to investigate persons and entities who sought to do business with Shelby Farms, including Mid South Concerts. This was outside of Miles’ duties as the gun range master. Hawk Security was paid by Shelby County for both investigations.

On another occasion in 1998, Miles, a certified firearms instructor, entered into an oral agreement with University of Memphis professor Steve James (“Professor James”) to train Professor James’s ranger students at the Shelby Farms gun range. Under the agreement, Miles was to be paid by the University. Martin approved the use of the Shelby Farms gun range and other county buildings for the training, and Miles conducted the training during his off hours. After Miles had completed the training, however, Professor James told Miles that the University would be unable to pay him as agreed, because Professor James’s costs for the program had exceeded his budget. Martin directed Miles not to bill the University, but rather to submit time cards requesting that Shelby County pay him overtime for the time spent on the gun range training the students. Miles complied, noting on his time card: “Overtime was for U.M. Training.” In addition, Miles submitted an invoice to Shelby County under the name Hawk Equipment Co. for reimbursement of the expenses related to the training. Miles’s request for overtime pay was approved and Shelby County cut a check to Hawk Equipment Co. for the training expenses.

The checks paid to Hawk Security and the overtime payments to Miles for the ranger training went unnoticed. In August 2000, however, Miles was talking with Ted Fox about what he perceived to be problems at Shelby Farms stemming from Martin’s mismanagement. In the course of the conversation, he mentioned to Fox the two investigations conducted by Hawk Security and the ranger training class taught by Miles as anecdotal evidence of Martin’s disregard for Shelby County policy. This conversation led to Ron Banks (“Banks”), Fox’s assistant, interviewing Miles in spring 2001 concerning Miles’s allegations against Martin. Miles discussed with Banks the private investigations and the ranger training. Later, Tom Cates (“Cates”), an internal audit manager with Shelby County, performed an investigation concerning the financial aspect of the matters Miles had revealed to Fox and Banks. As part of that investigation, in August 2001, Cates took Miles’s deposition, asking questions based on Banks’s interview with Miles. On October 31, 2001, Miles received a Notice of Proposed Major Discipline charging him with violations of:

a. The Shelby County Charter, § 3.0S(N) (Entering into a Contract not Properly Executed);
b. The Shelby County Charter, § 5.08(A) (Conflict of Interest);
c. The Shelby County Contract Administration Manual § II CA 020 (Violation of Contract Procedures); and,
d. The Shelby County Personnel Management System, § 703 (Cause/Major Offenses: Falsification of Information Required by the County; Misappropriation of County property).

The letter advised Miles that he was subject to major discipline up to and including termination. Miles subsequently had a Loudermill hearing.

The County sent Miles a letter dated December 5, 2001, terminating him from his employment as the Shelby Farms Range Master. The letter advised him that he was being terminated for violation of sections 5.08(A) and 3.03(N) of the Shelby County Charter, section II CA-020 of the Shelby County Contracts Administration Manual, and section 703 of the Shelby County Personnel Management System. Under the Description of Charges, the letter noted that Hawk Security had been paid for two background checks, that Miles had been paid overtime for training the University of Memphis students, that he received an expense check for that training, and that he had made unauthorized use of Shelby County buildings for the training. Miles appealed his termination to the Shelby County Civil Service Merit Board.

At the hearing before the Civil Service Merit Board, Miles testified, but Martin did not. Miles explained the overtime he submitted for his work training the University of Memphis students. He testified that, when he found out that Professor James could not pay for the training out of his University budget, he asked his supervisor Martin about the best method of billing the University. Martin had a close working relationship with Professor James; Professor James regularly provided extra training to the Shelby Farms rangers and James’s graduates were regularly employed by the park. Miles testified that Martin feared a disruption of this relationship with the University and, using “profane and vulgar terms,” vociferously forbade Miles from billing the University, threatening Miles with his job. Miles observed that Martin was “a man you didn’t want to cross.” Miles said that Martin ordered him to submit an overtime request to the County for his work for the University, telling him he would be fired if he did not. Miles initially resisted doing so, since he thought that it was immoral to charge Shelby County for services provided to the University of Memphis. Later, Miles remembered that Shelby Farms policy required that Miles, as range master, be present at the range when it was in use but closed to the public, and that he was expected to submit to the County as overtime any time spent at the range on such occasions. Consequently, on that basis, Miles submitted the overtime request, noting on his request that it was for work for the University. Miles did not testify about the training expense check to Hawk Security, but in his earlier interview with Cates, Miles said that Martin told him to give him a separate invoice and he would make sure that Miles’s expenses were reimbursed.

Miles also testified before the Board about his private investigation work for the County. Miles admitted that his investigative work constituted professional services and a conflict of interest, but explained the circumstances under which it arose. Miles testified that Martin asked him to investigate a corporation that sought to do business with Shelby County, and told Miles that Fox specifically requested that Miles do a background check of the corporation. Miles said that when he noted to Martin that such a job should be bid out to other investigative services, Martin began pressuring him, saying that if Miles did the job, Fox “won’t forget it,” but if Miles refused to do the investigation Fox “won’t forget that, either.” Miles testified that the second investigative job he performed for the County was initiated by a phone call from Martin, during which Martin said Fox needed some information on another corporation. Miles admitted that he never talked to Fox directly about either investigation, and that he was not present when Fox and Martin discussed the matters Miles investigated. Fox testified at the hearing as well, and said that he did not directly tell Miles to perform any investigative services on behalf of Shelby County, nor was he aware of the connection between Hawk Security and Miles when he signed checks written to Hawk Security.

The Board issued its decision in March 2002. It found that Miles was not guilty of the charges, and overturned his termination, holding:

It is the opinion of the Board that the Petitioner was actively involved in a pay inequity involving overtime and participated in providing professional services in violation of County policy. However, the Board finds that these actions were done with the knowledge and at the direction of his supervisor, which mitigates the Petitioner’s responsibility.

Thus, though the Board found that Miles had violated county policy, it concluded that he should not be held responsible because his actions were directed by his supervisor, Martin.

The County then filed a “Petition for Issuance of Common Law Writ of Certio-rari and Supercedeas” in Chancery Court, requesting the court to reverse the Board’s decision. Fox argued that the Board’s decision was illegal, arbitrary and capricious, and not supported by evidence. After reviewing the record and hearing statements by counsel, the Chancery Court held that the Board did not exceed its statutory authority in overturning the termination. The Chancery Court reasoned that the Shelby County employee discipline policies and procedures do not mandate termination when there is just cause, and held that the Board’s finding that Martin directed Miles to take these actions supported the Board’s decision. The Chancery Court concluded further that the Board did not act arbitrarily or capriciously, as evidenced by the full hearing consisting of live testimony and exhibits, and affirmed the Board’s decision to overturn Miles’s termination. From that order, the County now appeals.

Chapter 110, Private Acts 1971 established the Civil Service Merit System for employees of Shelby County. Private Acts, ch. 110, § 1, 493 (1971); Austin v. Shelby County Gov’t Register’s Office, 761 S.W.2d 298, 299 (Tenn.Ct.App.1988). The Act further created the Civil Service Merit Board, (Private Acts, ch. 110, § 3, 494 (1971)), which has the power and duty to hear the appeal of a county employee’s removal, suspension or reduction in rank or compensation, (Private Acts, ch. 110, § 6(d), 497 (1971)), and to affirm, modify or revoke the appealed discipline. Private Acts, ch. 110, § 23, 505-06 (1971); Austin, 761 S.W.2d at 299. The decision of the Civil Service Merit Board may be reversed or modified only when “the Board has acted in violation of constitutional or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material evidence to support its decision.” Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn.1980); Gross v. Gilless, 26 S.W.3d 488, 492 (Tenn.Ct.App.1999).

It is well settled in Tennessee that a municipal charter is mandatory, taking precedence over ordinances and limiting the actions of the municipality’s agents, who must follow the charter. State ex rel. Lewis v. Bowman, 814 S.W.2d 369, 373 (Tenn.Ct.App.1991) (quoting Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495, 71 S.W. 815, 819 (1903)). This requirement extends to a civil service board, which may not set aside or waive a positive requirement of the municipality’s charter in rendering its decisions. State ex rel. Atkin v. City of Knoxville, 203 Tenn. 622, 315 S.W.2d 115, 117 (1958).

On appeal, the County argues that the Board’s decision should be reversed because the decision violates section 5.08 of the Shelby County Charter, the conflict of interest provision. The County also argues that the Board’s decision to reinstate Miles was arbitrary and capricious because the County charter mandates the termination of employees who contract with the County and because it can never be permissible for an employee to charge the County for work not performed for the benefit of the County. Finally, the County asserts that the fact that Martin directed Miles to perform the investigations and submit the request for overtime was not substantial and material evidence that could support the Board’s ruling.

In response, Miles argues that the Board did not violate the Shelby County Charter by reinstating him. First, Miles argues that the Board did not waive section 5.08(A) of the Shelby County Charter, because the Board did not expressly find that he had violated that provision. Second, Miles asserts that the facts of State ex rel. Atkin v. City of Knoxville, cited above for the proposition that the Board is obligated to follow the charter, are distinguishable from the case at bar and thus does not support the County’s position. Finally, Miles argues that section 5.08(A) does not control in this case, because its provisions are addressed to officers or employees of the county, “whether elected or appointed,” and Miles claims he was neither elected nor appointed. Miles maintains that the Board’s decision was supported by substantial and material evidence and was neither arbitrary nor capricious because the Board based its ruling on the fact that Martin directed Miles to take the actions for which he was terminated.

As noted above, the Civil Service Merit Board has the power to modify and set aside disciplinary actions against county employees, so long as the Board does not violate constitutional or statutory provisions, exceed its statutory authority, act arbitrarily or capriciously, follow unlawful procedure, or fail to support its decision with material evidence. Watts, 606 S.W.2d at 277. In Austin v. Shelby County Government Register’s Office, for example, this Court upheld the Board’s decision to reinstate the county employee and impose a lighter penalty for the employee’s insubordination. Austin v. Shelby County Gov’t Register’s Office, 761 S.W.2d 298, 298, 300 (Tenn.Ct.App.1988). A review of the record revealed that there was material evidence to support the Board’s decision to soften the sanction and that nothing indicated that the Board’s actions regarding the severity of the penalty was arbitrary and capricious. Id. at 300. However, unlike the case at bar, the Austin Board’s decision to modify the employee’s sanctions did not implicate the county charter or any constitutional or statutory provision. The Civil Service Merit Board must act within the parameters of the county charter. Atkin, 315 S.W.2d at 117.

Although the facts in State ex rel. Atkin v. City of Knoxville are inapposite to those in the present case, there is no mistaking the clear language adopted by the court: “ ‘The civil service board has no discretion and no authority to set aside or waive a positive requirement of a charter provision.’ ” State ex rel. Atkin v. City of Knoxville, 203 Tenn. 622, 315 S.W.2d 115, 117 (1958) (quoting the trial court below). This statement is consistent with the supremacy our courts have always given to charters within their respective municipalities. See State ex rel. Lewis v. Bowman, 814 S.W.2d 369, 373 (Tenn.Ct.App.1991) (quoting Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495, 71 S.W. 815, 819 (1903)). Accordingly, the Shelby County Civil Service Merit Board was obligated to act within the parameters of the Shelby County Charter.

Miles argues that Section 5.08 of the County charter does not apply to him because he is neither “elected” nor “appointed.” It is undisputed, of course, that Miles is not elected. Exhibit A to the charter, however, quotes the private act which establishes the Civil Service Merit System, designating employees such as Miles as “classified” and referring to such employees as “appointed to a position or office in the classified service.” Private Acts, ch. 110, § 2(e), 494 (1971) (emphasis added); see also Private Acts, ch. 110, § 13, (1971) (referring to “applicants for appointment in the system....”). Miles cites no authority supporting his assertion that an employee such as him is not subject to the charter’s prohibition against conflicts of interest, and we find this argument without merit.

In this case, section 5.08 not only prohibits Shelby County employees from entering into a conflict of interest with the county, but it also sets out the penalty for doing so. Section 5.08(C) provides: “Any officer or employee of the county who wil-fully conceals any [conflict of] interest or violates any of the provisions of this section shall forfeit his or her office.” This language is mandatory and unequivocal.

In the case at bar, an employee of Shelby County, appointed to serve as the Range Master of Shelby Farms, Miles was governed by section 5.08 of the County charter. This clearly proscribed him from entering into any arrangement that constituted a conflict of interest with the County. It is true that the Board did not expressly find that Miles violated the charter; it held only that Miles’s actions were mitigated by the fact that they were done at the direction of his supervisor. Miles’s violation of this charter provision, however, is undisputed. Miles admitted that receiving payment from the County for performing investigative services on the County’s behalf violated County policy by creating a conflict of interest. The Board was clearly sympathetic to Miles’s position, and if the Board had the discretion to reverse Miles’s termination, there was ample reason to do so. Unfortunately, the mandate of the charter is clear' and admits no exception. Thus, the Board was obligated to implement the penalty provision of section 5.08 and affirm Miles’s termination, regardless of any mitigating circumstances. Consequently, the trial court’s decision, affirming the Board, must be reversed.

All other issues raised on appeal are pretermitted.

The decision of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. Costs are taxed to the appellee, Thomas H. Miles, for which execution may issue if necessary.


text:
    AMERICAN CHARIOT, et al. v. CITY OF MEMPHIS, Tennessee, et al.
    Court of Appeals of Tennessee, at Jackson.
    Assigned On Brief June 24, 2004.
    Aug. 19, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 24, 2005.

      Dan M. Norwood, Memphis, Tennessee, for the appellants, American Chariot; Memphis Carriage; Inc.; Dancing Horse Carriages, Inc.; Uptown Carriage Tours; and Downtown Carriage Tours.
    Allan J. Wade and Lori Haekleman Patterson, Memphis, Tennessee, for the appel-lees, City of Memphis, Tennessee; the Memphis City Council; Willie Herenton, Mayor of the City of Memphis, Tennessee; Richard Merrill, City Traffic Engineer; and Walter Crews, Chief of Police.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

Plaintiffs, horse-drawn carriage operators, filed a declaratory judgment action challenging the constitutionality of a provision of one section of an ordinance adopted by the Memphis City Council. The trial court elided the provision as an unlawful delegation of the City’s police power and enforced the remainder of the ordinance. Plaintiffs appeal, asserting the trial court erred in its application of the doctrine of elision. Defendants cross-appeal, asserting the trial court erred by finding the elided portion unconstitutional. We affirm.

American Chariot; Memphis Carriage, Inc.; Dancing Horse Carriages, Inc,; Uptown Carriage Tours; and Downtown Carriage Tours (“Plaintiffs”) operate horse-drawn carriages in the city of Memphis, Tennessee. Pursuant to its police power, the City of Memphis regulates the operation of the carriages. Operations are regulated by Section 39-71, et seq., of the Code of Ordinances (“the City Code”). In May 2002, the Memphis City Council (“the Council”) approved Ordinance No. 4941 (“the Ordinance”) which, amended, inter alia, Section 39-119(a) (“the Section”) of the City Code. The Section provided:

By amending Section 39-119(a) to read as follows:

Private or other vehicles for hire shall not at any time occupy the space upon the streets that have been established as horse drawn carriage stands.
From and after July 21, 2002, said horse drawn carriage stands shall at all times be restricted to a minimum distance of one hundred (100) feet from the threshold of any establishment or enterprise whose main business is the serving of restaurant clientele or food serving processes, unless said restaurant owner gives his consent that a horse drawn carriage may be located within the one hundred (100) feet minimum distance from its threshold, and all written consents to go to the City’s department of engineering.

In July 2002, Plaintiffs filed a complaint for declaratory judgment in the Shelby County Chancery Court against the City of Memphis; the Memphis City Council; Willie Herenton, Mayor; Richard Merrill, City Traffic Engineer; and Walter Crews, Chief of Police (collectively, “the City”). In their complaint, Plaintiffs challenged the constitutionality of this Section and sought an injunction against its enforcement. Plaintiffs asserted that the action taken by the City Council to amend Section 39-119(a) is arbitrary, capricious and contrary to law and, if enforced, would cause immediate and irreparable harm to their businesses. They further asserted that the Section discriminates between classes of businesses without any legitimate basis, and is an unlawful restraint of trade in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of the Constitution of the State of Tennessee. Plaintiffs also complained that the portion of the Section which waives the distance requirement where a “restaurant owner gives his consent that a horse drawn carriage may be located within the one hundred (100) feet minimum distance from its threshold, and all written consents to go to the City’s department of engineering” (hereinafter “the consent provision”) unlawfully delegates the police power of the City to individual restaurant owners.

On August 15, 2002, the trial court granted Plaintiffs’ application for temporary injunction and enjoined the City from taking any action to implement or enforce the Section. Following a hearing on the merits, the trial court entered its final judgment in October 2003. The trial court denied Plaintiffs’ application for permanent injunction but determined the consent provision was an unlawful delegation of legislative and/or police power. The trial court determined the Section was not unconstitutional absent the consent provision. Accordingly, the trial court elided the consent portion and enforced the remainder of the Section, thereby restricting horse-drawn carriage stands to a minimum distance of 100 feet from the threshold of a restaurant or food serving process. Plaintiffs filed their notice of appeal to this Court on November 17, 2003. We affirm.

Issues Presented

On appeal, Plaintiffs contend the trial court erred in applying the doctrine of elision to elide the unconstitutional consent provision and in enforcing the remainder of the Section as constitutional and effective. The City raises the issue of whether the trial court erred in ruling that the consent provision was an improper delegation of the City’s legislative or police power and, accordingly, in eliding that portion. The City argues, in the alternative, that if the consent provision is an improper delegation of authority, the trial court properly applied the doctrine of elision.

Standard of Review

We review a trial court’s findings of fact de novo upon the record, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d). Our review of a trial court’s determinations on questions of law, however, is de novo, with no presumption of correctness. Gonzalez v. State Dep’t of Children’s Servs., 136 S.W.3d 613, 616 (Tenn.2004).

Analysis

Plaintiffs assert that the unlawful consent provision was an integral and necessary part of the Section, and that the City Council would not have enacted the Section without it. They submit that the trial court, therefore, erred by applying the doctrine of elision to strike the consent provision and enforce the remainder of the Section. Plaintiffs argue that since the unlawful provision cannot be elided from the Section, the entire Section must be found unconstitutional. Plaintiffs do not raise the issue of whether the Section is unconstitutional absent the consent provision in this Court.

The City, on the other hand, asserts the consent provision is not an unlawful delegation of authority. It accordingly agrees with Plaintiffs that the trial court erred by eliding the provision, but asserts the Section is a constitutional and lawful exercise of the City’s police power in its entirety. In the alternative, the City submits that if the consent provision is unlawful, the trial court properly elided it and enforced the remainder of the Section.

We must begin our analysis by determining whether the consent provision, which allows individual restaurant owners to waive the minimum standing distance requirement, is an unlawful delegation of the City’s police power. The City acknowledges that it may not delegate its police or legislative powers to private citizens. However, it relies on Davis v. Blount County Beer Board, 621 S.W.2d 149 (Tenn.1981) to argue that “to allow an adjoining landowner or those in a shared locality to consent to an otherwise illegal or improper use is not an invalid delegation of police powers.”

In Davis v. Blount County, the Tennessee Supreme Court considered the constitutionality of a county resolution requiring a beer board to deny an otherwise qualified applicant a permit to sell beer within 300 feet of a residential dwelling where the owner of the residence appeared in person before the beer board to object to the issuance of the permit. Davis v. Blount County Beer Bd., 621 S.W.2d at 150. The court held the resolution was not an unlawful delegation of authority as “[t]he protesting owner ... exercises no legislative power; he merely protests or fails to protest. He can neither grant nor deny a permit for the sale of beer.” Id. at 152. The court acknowledged that “the effect of a protest is to deny the permit,” but concluded “that effect is derived from the legislative enactment and the ordinance passed pursuant thereto, not from the residence owner.” Id.

In reaching its holding in Davis, the court analyzed several cases from other jurisdictions, including the leading case of Cusack Company v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917). In Cusack, the United States Supreme Court upheld an ordinance which required the written consent of the owners of a majority of the frontage property on both sides of the street before any billboard above a specified size could be erected in a block in which one-half of the buildings were used exclusively for residential purposes. Id. at 151-152. The Cusack court stated,

[t]he ordinance in the case at bar absolutely prohibits the erection of any billboards in the blocks designated, but permits this prohibition to be modified with the consent of the persons who are to be most affected by such modification ... [it] permits one half of the lot owners to remove a restriction from the other property owners. This is not a delegation of legislative power, but is, as we have seen, a familiar provision affecting the enforcement of laws and ordinances.

Id. at 152 (quoting Cusack, 37 S.Ct. at 192). The Davis court further noted that the Blount County resolution “does not unlawfully delegate the power to grant licenses or make arbitrary or unjust discrimination between applicants; nor is it objectionable as conferring arbitrary powers on property owners[.]” Id. at 599 (quoting 45 Am.Jur.2d Intoxicating Liquors § 156 (1969)).

The City asserts that the consent provision in the case at bar is not an improper delegation of authority where it allows those most affected by the Ordinance to waive the prohibition. We disagree. The Ordinance at bar prohibits horse-drawn carriages from standing within 100 feet of á restaurant not for the protection of the restaurant business per se, but as a matter of public health and welfare. As the trial court noted,

[although the City Council has mindfully structured rules that allow for the inclusion of these animals in the downtown are of the City, the City Council was also mindful of the issues of smell, urination and sanitation when it created and passed Ordinance 4941. These issues constitute a rational basis for regulating horse-drawn carriages and for prohibiting horse-drawn carriage stands from being located within 100 feet of the threshold of “any establishment or enterprise whose main business is the serving of restaurant clientele or food serving processes.”

Further, the Section is part of a lengthy ordinance which regulates not only horse-drawn carriages, but vehicles for hire (including taxicabs and limousines) in general. Other provisions of the Ordinance relating to horse-drawn carriages provide, inter alia, for limiting the number of horse-drawn carriages to no more than 50; for the issuance and revocation of Certificates of public convenience; for the training of carriage drivers; for the conditions relating to carriage driver permits; for a driver dress code; and for inspection of carriages and horses. Thus, the Section is part of an overall regulatory scheme affecting matters of public health and welfare.

Unlike the ordinances in Davis and Cu-sack, the Ordinance at bar is not primarily for the benefit of property owners, but their clientele and the general public. The City Council has determined that citizens and visitors who must traverse the pathways of horse-drawn carriage stands, with their attendant odors, refuse, and pests, in order to attempt to enjoy a meal while separated from those odors only by frequently open doors and windows, are best protected by prohibiting these animals from standing within 100 feet of the threshold of a restaurant. The consent provision permits restaurant owners to waive a restriction which serves to protect the public health and welfare. Further, although the provision requires such consent to be in writing and sent the City’s department of Engineering, it contains no standards for determining when such a waiver is appropriate or for review by the City of whether the waiver adversely affects those the Section protects.

The consent provision in the Ordinance at bar permits private citizens to determine whether a specific use of public thoroughfares would be detrimental to the public health and welfare. It permits private citizens to arbitrarily and capriciously waive an otherwise legal restriction which serves the public welfare. Accordingly, we agree with the trial court that the consent provision unlawfully delegates the City’s police and legislative powers to private citizens.

We next turn to Plaintiffs’ assertion that the doctrine of elision is not applicable to the Section and that, accordingly, the unlawful consent provision renders the entire Section unlawful. The doctrine of elision permits a court, under appropriate circumstances, to elide a portion of a statute or legislative act which it finds unconstitutional, and to enforce the remainder as constitutional and effective. Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 22 (Tenn.2000) (quoting State ex. rel Barker v. Harmon, 882 S.W.2d 352, 355 (Tenn.1994)). Unconstitutional portions may be elided when doing so would not undermine the legislative intent of the statute. Id. The doctrine of elision is not applicable where the legislature would not have enacted the statute without the provision determined by the court to be unconstitutional. Id.; Ford Motor Co. v. Pace, 206 Tenn. 559, 335 S.W.2d 360, 369 (1960). However, when the court concludes that the legislature would have enacted the legislation without the unconstitutional provision, elision is appropriate. In re Swanson, 2 S.W.3d 180, 189 (Tenn.1999).

The inclusion by the legislature of a severability clause in the statute is evidence of the legislature’s intent that valid portions of the statute be enforced where the court determines that other portions are unconstitutional. State v. Tester, 879 S.W.2d 823, 830 (Tenn.1994). However, there must be enough left of the statute “for a complete law capable of enforcement and fairly answering the object of its passage.” Id. Further, “[w]here a clause is so interwoven with other portions of an act that we cannot suppose that the legislature would have passed the act with that clause omitted, then if such clause is declared void, it renders the whole act null.” Id. (quoting Hart v. City of Johnson City, 801 S.W.2d 512, 517 (Tenn.1990)). The courts have often applied the doctrine of elision where statutes include severability clauses unless such application would undermine or frustrate the object of the act. Lowe’s Cos., Inc. v. Cardwell, 813 S.W.2d 428, 431 (Tenn.1991).

We note that the Ordinance at bar includes a broad severability clause which provides: “If any of these sections, provisions, sentences, clauses, phrases or parts are held unconstitutional or void, the remainder of this Ordinance shall continue in full force and effect.” Plaintiffs assert, however, that the doctrine of elision is not applicable to the Section despite this sev-erability clause. They contend the doctrine of elision cannot be applied to the Section because the consent provision is the result of a compromise reached by the City Council, that it was an inducement to the passage of the Section, and that the City Council would not have passed the Section without the provision.

After reviewing the entire Ordinance and the transcriptions of relevant parts of the official audio tapes maintained by the City Council from City Council Public Safety Committee and Memphis City Council meetings, we disagree. The meeting minutes reflect that the Ordinance was part of lengthy effort to address the regulation of all vehicles for hire, not just horse-drawn carriages. The portions pertaining to horse-drawn carriages addressed the health and safety issues raised by those carriages, as well as the operation of the carriages as one type of vehicle for hire. Although the consent provision was added to the Section after opposition to the restrictions on horse-drawn carriages was voiced by Plaintiffs at the meetings, we agree with the trial court that it was not inducement to the passage of the Section. Rather, it is a minor clause of a lengthy and sweeping ordinance amending the regulation of vehicles for hire in general, and horse-drawn carriages in particular. Clearly, the Section fulfills its objective of protecting the public health and welfare absent the consent provision. We accordingly affirm the application of the doctrine of elision to this case.

Holding

In light of the foregoing, we affirm the judgment of the trial court in all respects. Costs of this appeal are taxed to the Appellants, American Chariot; Memphis Carriage, Inc.; Dancing Horse Carriages, Inc.; Uptown Carriage Tours; Downtown Carriage Tours; and to their sureties, for which execution may issue if necessary.