author: ADOLPHO A. BIRCH, J.,

text:
    Steven GRIFFIN v. STATE of Tennessee.
    Supreme Court of Tennessee, at Nashville.
    June 2005 Session.
    Jan. 13, 2006.

      Thomas Bloom, Nashville, Tennessee, for the Appellant, Steven Griffin.
    Paul G. Summers, Attorney General and Reporter; Michael' E. Moore, Solicitor General; and Brent C. Cherry, Assistant Attorney General, for the Appellee, State of Tennessee.
   OPINION

ADOLPHO A. BIRCH, J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, JJ., and FRANK F. DROWOTA, III, SP.J., joined.

We accepted review of this cause under the Tennessee Rules of Appellate Procedure, Rule 11, in order to address a question of first impression: whether the right to DNA analysis created by the Post-Conviction DNA Analysis Act of 2001 may be waived by implication. Because the clear language of this Act provides that a petition for analysis may be filed at any time, we hold that the filing of such a petition is not subject to implied waiver. This holding, however, affects only eligibility to file the petition; the requirements set forth in the Act must be met before relief may be granted. Accordingly, and for the reasons stated, we reverse the judgment of the Court of Criminal Appeals and remand the case to the trial court for further proceedings pursuant to this opinion.

I. Facts and Procedural History

The appellant, Steven Griffin, was indicted by the Davidson County Grand Jury for multiple counts of aggravated rape and a single count of kidnapping. Having been extradited in June 1993, from Florida to Tennessee, he demanded a speedy trial under the Interstate Compact on Detain-ers. The State obliged, and his trial corn-menced within 180 days. On October 14, 1993, a Davidson County jury convicted Griffin of six counts of aggravated rape and one count of kidnapping. The trial court imposed a sentence of eighty-five years in the Department of Corrections; a sentence he now serves. This judgment was affirmed on direct appeal. In October 1996, Griffin petitioned for post-conviction relief on the basis of ineffective assistance of counsel. The trial court denied post-conviction relief, and the judgment was affirmed by the Court of Criminal Appeals.

Proceeding pro se, Griffin requested DNA analysis in December 2002 under the Post-Conviction DNA Analysis Act of 2001. His petition included the following:

The petitioner ... requests] that all human biological evidence in the possession or control of the prosecution, law enforcement, laboratory, or court which relates to [this] investigation and prosecution ... be held for DNA Analysis.
The petitioner respectfully asserts according to his knowledge and belief that the human biological evidence has never been subject to DNA Analysis for comparison and identification purposes from the alleged victim of [this] cause of action.
The petitioner did submit a blood sample for DNA Analysis....
The probability does exist that the petitioner would not have been prosecuted and/or convicted if exculpatory results had been obtained through DNA Analysis.
The availability of DNA Analysis would have produced a more favorable result leading to the petitioner’s innocence of the charged offense.

The State moved to dismiss the petition on the grounds (1) that “no DNA evidence exists which could be subjected to testing or analysis” and (2) that “DNA Analysis of the evidence would not have changed or in any way altered the jury’s verdict” because Griffin relied on the defense of consent at trial.

The trial court denied Griffin’s petition without an evidentiary hearing. The court specifically held that Griffin had “opted out” of DNA testing by demanding a speedy trial and by advancing the theory of consensual sex at trial. The trial court reasoned that under these circumstances, DNA evidence would have been useless to Griffin.

On direct appeal, the Court of Criminal Appeals affirmed the trial court’s judgment. The Court stated as follows:

[W]e conclude that the trial court should not have treated the request for DNA analysis as a petition to reopen the earlier post-conviction proceeding. We further conclude that the state’s response was inadequate to explain why it could not produce the requested evidence and, therefore, could not supply grounds to summarily dismiss the petitioner’s request. Moreover, we conclude that the “consensual sex” theory of defense did not, as a matter of law, defeat the request for DNA analysis. Finally, however, we hold that the application was properly dismissed for failure to satisfy the statutory condition that “[t]he application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration justice.” TenmCode. Ann. § 40-30-304(4) (2003), and for that reason we affirm the judgment of the trial court.

Griffin v. State, No. M2003-00557-CCA-R3-PC, slip op. at 9, 2004 WL 1562390, (Tenn.Crim.App. July 13, 2004). Griffin now appeals to this Court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure.

II. Standard of Review

Whether a statute is susceptible to implied waiver is a question of law. The conclusions of law of a post-conviction court are reviewed under a de novo standard with no presumption of correctness. Serrano v. State, 133 S.W.3d 599, 603 (Tenn.2004) (citing Fields v. State, 40 S.W.3d 450, 458 (Tenn.2001)).

III. Analysis

The Post-Conviction DNA Analysis Act of 2001 (“The Act”) provides for post-conviction DNA analysis for petitioners convicted and sentenced for certain homicide and sexual assault offenses in which biological evidence may have existed. Tenn. Code Ann. § 40-30-303 (2003 & Supp. 2005). The Act addresses two categories of cases in which DNA analysis might be appropriate. First, DNA analysis is mandatory and must be ordered in cases where the trial court finds that:

(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
(2) The evidence is still in existence and in such a condition that DNA analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
(4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Tenn.Code Ann. § 40-30-304 (2003).

Additionally, DNA analysis is discretionary and may be ordered if the trial court finds that:

(1) A reasonable probability exists that analysis of the evidence will produce DNA results which would have rendered the petitioner’s verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;
(2) The evidence is still in existence and in such a condition that DNA analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis, or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
(4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Tenn.Code Ann. § 40-30-305 (2003).

Notwithstanding the trial court’s finding of waiver, the Act includes explicit language that makes DNA analysis available at any time.

[A] person convicted of and sentenced for ... aggravated rape ... may at any time, file a petition requesting the forensic DNA analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence.

Tenn.Code Ann. § 40-80-303 (2003) (emphasis added). This provision has no statutory time limit and gives petitioners the opportunity to request analysis at “any time,” whether or not such a request was made at trial.

On appeal, the Court of Criminal Appeals correctly noted that there is no statutory time limitation for filing a petition for DNA analysis. See id. The court reasoned, however, that because Griffin had demanded a speedy trial and DNA testing could not have been completed pri- or to trial, Griffin had “waived” his right to DNA testing by knowingly “bypassing” DNA testing so as to take advantage of his right to a speedy trial. Additionally, the court reasoned that Griffin had failed to demonstrate in his application one of the evidentiary prerequisites — “[t]he application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.” See Tenn.Code Ann. §§ 40-30-304(4) & -305(4).

In the dissenting opinion, Judge Tipton notes,

The Post-Conviction DNA Analysis Act has no provision that even hints of waiver relative to a request to test evidence for the first time. The applicable requirement for consideration is T.C.A. § 40-30-304(3) which states: “The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis.” The focus is on the fact that no test occurred, not on whether a previous opportunity existed or was pursued to have the test done.

Griffin v. State, No. M2003-00557-CCA-R3-PC, slip op. at 10, 2004 WL 1562390, (Tenn.Crim.App. July 13, 2004) (Tipton, J., dissenting). Consideration of a petition under the discretionary analysis set forth in Tennessee Code Annotated section 40-30-305(3) is subject to the same requirement. We agree with Judge Tipton’s analysis.

[C]ourts must attempt to give effect to the legislative purpose and intent of a statute, as determined by the ordinary meaning of its text, rather than seek to alter or amend it. When a statute lacks contradiction or ambiguity, courts are not at liberty to depart from the words of the statute. If the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, to say sic lex scripta, and obey it.

Wausau Ins. Co. v. Dorsett, 172 S.W.3d 538, 543 (Tenn.2005) (citations and quotations omitted). The plain language of section 40-30-303 indicates that a petition may be filed at any time, and no provision in the Act provides for waiver by failing to request analysis at a prior proceeding. Thus, while we find that DNA analysis may be expressly waived, or even abandoned, we conclude that under normal circumstances, the right to DNA analysis under the Act may not be waived by implication.

The Court of Criminal Appeals also found that the petitioner had failed to show that his petition was not filed for improper dilatory purposes. One of the prerequisites for DNA analysis is that the “application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or the administration of justice.” Tenn.Code Ann. §§ 40-30-304(4), -305(4) (emphasis added).

Noting concern about finality in its analysis regarding waiver, the Court of Criminal Appeals concluded that Griffin failed to demonstrate that his petition would “not unreasonably delay the execution of sentence or administration of justice.” We are puzzled by this conclusion, especially in light of the fact that when Griffin filed the petition he had been serving his sentence and continues to do so. We can find no other evidence in the record to support this conclusion of unreasonable delay.

As this case demonstrates, findings of fact upon which rights are granted or denied are best made following an evidentiary hearing. Without an evi-dentiary basis in the record, we are unable to determine whether the petitioner’s purpose for requesting DNA analysis meets the criteria of the Act.

IV. Conclusion

We conclude that under the facts of this case, the petitioner has not impliedly waived his right to DNA analysis and is entitled to a hearing under the Post-Conviction DNA Analysis Act of 2001. In light of the above, the judgment of the Court of Criminal Appeals is reversed. The cause is remanded to the trial court for the purpose of conducting an evidentia-ry hearing to make findings of fact and conclusions of law in accordance with the Post-Conviction DNA Analysis Act of 2001, Tennessee Code Annotated sections 40-30-301 to -313. Costs of this appeal are taxed to the State of Tennessee, for which execution may issue if necessary.

      . The Interstate Compact on Detainers, Article III, paragraph (a) provides, in part,
      Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the person shall be brought to trial within one hundred eighty (180) days after having caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of the person's imprisonment and request for a final disposition to be made of the indictment, information or complaint; provided, that for good cause shown in open court, the prisoner or the prisoner’s counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. Tenn.Code Ann. § 40-31-101(2003 & Supp. 2005) (emphasis added).

      . The Post-Conviction DNA Analysis Act became effective in August 2001. Tenn.Code Ann. §§ 40-30-301 to-313 (2003).


source: Caselaw Access Project

author: JANICE M. HOLDER, J.,

license: Public Domain

text:
    Sunil KAWATRA v. Neelam Mantri KAWATRA.
    Supreme Court of Tennessee, at Nashville.
    June 8, 2005 Session.
    Dec. 7, 2005.

      Robert G. Ingram, Gallatin, Tennessee, for the Appellant, Sunil Kawatra.
    Alan Dale Johnson, Alfred H. Knight, Mary Arline Evans, and Tyree Bryson Harris IV, Nashville, Tennessee, for the Appellee, Neelam Mantri Kawatra.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JJ., and FRANK F. DROWOTA, III, Sp.J., joined.

This case involves a petition to relocate pursuant to Tennessee Code Annotated section 36-6-108 (2001). To determine whether the parties in a relocation case are spending substantially equal intervals of time with their child, the “time actually spent” with each parent should be computed in units of a day. The number of days to be credited to each parent should be based upon an examination of the residential schedule, additional time not reflected in the residential schedule, and adjustments for any violations to the residential schedule. To allocate a day for which both parents claim credit, the trial court should examine the hours that each parent actually spent with the child on that day, the activities in which each parent participated with the child, the resources that each parent expended on the child’s behalf, and any other factor that the trial court considers to be relevant. After careful consideration of the record, we conclude that the parties were not spending substantially equal intervals of time with the child. Because the mother was spending a greater amount of time with the child, she should be permitted to relocate with the child pursuant to Tennessee Code Annotated section 36-6-108(d) (2001). Accordingly, the judgment of the Court of Appeals is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

On April 19, 2001, Neelam Mantri Kawa-tra (“Mrs. Kawatra”) and Sunil Kawatra (“Mr. Kawatra”) were divorced by the trial court’s final decree. The parties’ marital dissolution agreement (“MDA”), which was incorporated into the court’s decree, provided for joint custody of the parties’ then seven-year-old daughter. Mrs. Kawatra was designated the child’s primary residential custodian.

Pursuant to the MDA, Mr. Kawatra was granted visitation on alternate weekends, every Wednesday afternoon until Thursday morning from September until May, six weeks in the summer, and every Father’s Day. The MDA further provided that the parties would alternate visitation for holidays. A subsequent order provided that the parties would alternate visitation during the child’s spring break from school.

On February 18, 2003, Mr. Kawatra received a letter from Mrs. Kawatra stating that she had remarried and planned to relocate to California with the parties’ child. Mr. Kawatra filed a petition in the trial court seeking to prevent the relocation. Following a hearing on June 19, 2003, the trial court applied Tennessee Code Annotated section 36-6-108 (2001), the parental relocation statute, and found that the parties were spending substantially equal intervals of time with the child. The trial court conducted a best interest analysis and concluded that Mrs. Kawatra could not relocate with the child.

The Court of Appeals reversed the trial court’s judgment. The intermediate appellate court concluded that the parties did not spend substantially equal intervals of time with the child and that Mrs. Kawatra should be permitted to relocate with the child. We granted review.

ANALYSIS

In 1998, our state legislature enacted Tennessee Code Annotated section 36-6-108, which applies when a parent seeks to relocate outside the state or more than 100 miles away from the other parent residing within the state. See Tenn.Code Ann. § 36-6-108(a) (2001). The statute requires the trial court to determine whether the parents are “actually spending substantially equal intervals of time with the child.” Id. at (c), (d). If the parents are spending substantially equal intervals of time with the child, section 36-6-108(c) provides that “[n]o presumption in favor of or against the request to relocate with the child shall arise.” Instead, the court must determine whether relocation of the child is in the child’s best interests. Id. at (c).

The approach differs if the parents are “not actually spending substantially equal intervals of time with the child.” If the parent spending the greater amount of time with the child seeks to relocate with the child, the court shall permit the relocation unless it finds that: 1) the relocation fails to have a reasonable purpose; 2) the relocation poses a threat of “specific and serious harm” to the child that outweighs the threat of harm that a change of custody would pose to the child; or 3) the parent has a vindictive motive for relocating. Id. at (d)(l)-(3). If one or more of these grounds exist, the court shall determine whether relocation is in the child’s best interests. Id. at (e).

To determine whether the parties spent substantially equal intervals of time with the child, the trial court calculated the number of hours that each party spent with the child in the year preceding the hearing. The trial court examined the 8,760 hours between June 1, 2002, and May 31, 2003, and found that Mr. Kawatra spent 3,136 hours with the child. According to these calculations, Mr. Kawatra had the child 35.775% of the time while Mrs. Kawatra had the child 64.201% of the time.

The trial court, however, reasoned that “justice requires consideration of the time that the parents actually spend with the child or the time that the parent provides direct care rather than simply right of possession.” As a result, the court deducted the 1,187 hours that the child was in school from its previous calculation of 8,760 hours, resulting in 7,573 hours. The trial court found that the child was under Mr. Kawatra’s direct care for 3,136 hours, or 41.41% of the time, and that Mrs. Ka-watra provided direct care for 58.59% of the time. Based upon this calculation, the trial court concluded that the parties were spending substantially equal amounts of time with the child. The trial court therefore applied Tennessee Code Annotated section 36 — 6—108(c), conducted a best interest analysis in accordance with this subsection, and held that Mrs. Kawatra could not relocate with the child to California.

The Court of Appeals held that the trial court erred in excluding the hours that the child spent in school from its calculation of the “total time spent” under Tennessee Code Annotated section 36-6-108. The intermediate appellate court found that even if it accepted Mr. Kawatra’s calculation of 3,159 hours as asserted in his appellate brief rather than the trial court’s calculation of 3,136 hours, he was spending 36% of the total 8,760 hours in a year with the child. The Court of Appeals concluded that the parties were not spending substantially equal intervals of time with their child, applied Tennessee Code Annotated 36 — 6—108(d), and permitted Mrs. Kawatra to relocate with the child.

We observe that Tennessee Code Annotated section 36-6-108 does not define what constitutes “actually spending substantially equal intervals of time.” We conclude, however, that the time that the parties’ child was attending school should not be used to reduce the total number of hours available for computation. The responsibilities of a parent do not end when a child is asleep, at school or day care, or otherwise outside of the parent’s presence. Furthermore, the use of hours as the sole basis for computing the time that each parent spent with the child does not provide the trial court with the flexibility needed to consider the circumstances of each case. Rather, the “time actually spent” with each parent should be computed in units of a day. See also Tenn. Comp. R. & Regs. 1240-2-4- 02(10) (2005) (adopting a definition of “day” under the Child Support Guidelines).

To determine the number of days to credit to each parent for purposes of Tennessee Code Annotated section 36-6-108(c) and (d), the trial court should first examine the provisions of the residential schedule. The trial court should then consider additional time each parent spent with the child that is not reflected in the residential schedule. If either parent violated the terms of the residential schedule by interfering with the other parent’s time with the child, the trial court should make any necessary adjustments to reflect the time that the child should have been in the care of the other parent. To allocate a day to one parent when both parents claim credit for that day, the trial court should examine 1) the hours each parent actually spent with the child on that day; 2) the activities in which each parent engaged with the child; 3) the resources the parent expended on the child’s behalf during that time period, including the costs of a meal or any other costs directly related to that parent’s care and supervision of the child; and 4) any other factor that the trial court deems relevant.

After computing the number of days allocated to each parent, the trial court must determine the number of months to use in comparing the time that each parent spent with the child. The use of a short comparison period may exaggerate the difference in the amount of time that each parent is spending with the child. We therefore conclude that, when circumstances permit, the comparison period should be the twelve consecutive months immediately preceding the relocation hearing.

Our review of the record, the visitation orders, the child’s schedule for the 2002-2003 school year, and a calendar dating from June 1, 2002, to May 31, 2003, supports the parties’ stipulation that 138 days should be credited to Mr. Kawatra. Based upon this stipulation, we conclude that Mr. Kawatra spent 37.8% of the time with the child during the twelve-month period preceding the relocation hearing while Mrs. Kawatra spent 62.2% of the time with the child. These percentages do not permit us to conclude that the parties spent substantially equal intervals of time with the child. We must therefore look to Tennessee Code Annotated section 36-6-108(d) to determine whether Mrs. Kawatra should be permitted to relocate with the child.

The trial court found that if subsection (d) applied, Mrs. Kawatra’s relocation had a reasonable purpose, that the evidence did not demonstrate that relocation would result in specific and serious harm to the child, and that Mrs. Kawatra’s motive for relocating was not vindictive. See Tenn. Code Ann. § 36 — 6—108(d)(1)—(3). On appeal, Mr. Kawatra does not contest the trial court’s findings. Based upon these undisputed findings, we hold that Mrs. Ka-watra shall be permitted to relocate to California with the parties’ child.

While our decision favors Mrs. Kawatra, it does not reflect in any way on the parenting skills of either Mrs. Kawatra or Mr. Kawatra. The record reflects that both parties are good parents and love their child dearly. The record also indicates that Mr. Kawatra, as the non-custodial parent, has maintained an active role in the child’s life and thoroughly enjoys spending time with the child. Furthermore, the evidence does not suggest that the child is safer, happier, or healthier with one parent rather than with the other. Tennessee Code Annotated section 36-6-108(d), however, requires us to permit Mrs. Kawatra to relocate to California with the child because she spends a substantially greater amount of time with the child, the relocation has a reasonable purpose and would not result in specific and serious harm to the child, and her motive for relocating is not vindictive.

CONCLUSION

We conclude that in determining whether the parties spent substantially equal intervals of time with their child for purposes of parental relocation, the trial court erred in relying solely upon an hourly unit of time and in excluding the time that the child spent in school from the total parenting time. We further conclude that the parties did not spend substantially equal intervals of time with the child. Because Mrs. Kawatra spent a greater amount of time with the child, she should be allowed to relocate with the child in accordance with Tennessee Code Annotated section 86 — 6—108(d). Accordingly, the judgment of the Court of Appeals is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Costs of appeal are taxed to the appellant, Sunil Kawatra, and his surety, for which execution may issue if necessary.

      .For simplicity, we refer to the "residential schedule” as it is the term used in the current parenting plan statutes. See Tenn.Code Ann. § 36-6-402(5) (2001) (defining the "[rjesiden-tial schedule” in a parenting plan as "the schedule of when the child is in each parent’s physical care”). We recognize that issues of relocation may arise involving visitation or custody orders that were entered prior to the enactment of the parenting plan statutes. Our reference to the residential schedule is not intended to exclude such orders from this opinion.

      . We note that a similar definition of "resources” appears in the current Child Support Guidelines. See Tenn. Comp. R. & Regs. 1240-2-4-.02(10) (2005).

      . The trial court erroneously stated that the parties stipulated to an additional twenty days to be credited to Mr. Kawatra. The record is clear that Mrs. Kawatra refused to stipulate to the twenty additional days, and our review of the record discloses no other basis for this allocation.


author: DAVID R. FARMER, J.,

text:
    RIVERSIDE SURGERY CENTER, LLC, et al. v. METHODIST HEALTH SYSTEMS, INC.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 19, 2005 Session.
    March 14, 2005.
    Application for Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      Robert A. McLean and Georgia A. Robi-nette, Memphis, Tennessee, for the appellants, Methodist Health Systems, Inc.
    Douglas W. Wilkerson and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellees, Riverside Surgery Center, LLC, Jeffrey Swetnam, M.D., G.S. Bindra, M.D., Richard Cape, M.D., Jim Caylor, M.D., Roy Chu, M.D., Michael Heck, M.D., Carl Huff, M.D., Jerry Jernigan, M.D. Ian Laing, M.D., Russell Lomas, M.D., Fred Moore, M.D., Said Nabhan, M.D. and Ramzi Younis, M.D.
   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.

This case presents the interpretation of a transfer restriction clause in an LLC operating agreement. The plaintiffs filed a motion for summary judgment requesting a declaration that the defendant, by negotiating for the sale of its interest in the LLC and granting a third-party buyer an option to purchase defendant’s interest, had triggered the plaintiffs’ preemptive purchase rights under the operating agreement. The defendants filed a cross-motion for summary judgment arguing that the transfer restriction clause in the operating agreement was triggered only by written notice of the intent to sell, which was never given. The trial court found that, under the language of the operating agreement, the plaintiffs’ preemptive purchase rights were triggered by the “desire or wish” of the selling member to transfer its interest and that the defendant had the desire or wish to transfer its membership interest in the LLC. The defendant appeals. We affirm.

Factual Background and Procedural History

In 1996, Methodist Health Systems, Inc. (“Methodist”) and a group of physicians (the “Physicians”) formed Riverside Surgery Center, LLC (“Riverside”), an ambulatory surgery center designed for outpatient surgery. In 1997, the parties executed an operating agreement for the governance of Riverside (the “Operating Agreement”). Pursuant to the Operating Agreement, the Physicians owned a 51% interest in Riverside, while Methodist owned the remaining 49% interest. Additionally, within the Operating Agreement the parties included a transfer restriction clause, or “right of first refusal” provision, designed to restrict the transferability of an individual member’s interest in Riverside. The pertinent provisions of the Operating Agreement provide as follows:

16. RESTRICTION UPON TRANSFER OF ALL OR PART OF A MEMBER’S INTEREST. A Member may not sell, assign or otherwise transfer (hereafter, collectively “transfer”) all or part of its interest in the Company (i.e., financial interests and governance rights) to any person except as specified below in this paragraph:

(a) The Member(s) wishing to transfer its interest must give written notice to all Members of the intent to transfer the interest, and must offer the Physician Members the first opportunity to purchase such interest. Any Physician Member(s) who wish [sic] to purchase the interest shall have the first right to purchase said interest at the price provided for in Section 18....
(b) If no Physician Member(s) desires to purchase such interest at such price, and if notice of the desire to purchase such interest is not received by the Member wishing to transfer its interest within thirty (30) days after the Physician Members’ receipt of the notice of intent to sell, then Methodist shall have the right to purchase the interest at the price provided for in Section 18. If Methodist desires to purchase the interest, it shall give written notice within thirty (30) days after the expiration of the thirty (30) day period referred to above to the Member who wishes to transfer the interest.
(c) If no Physician Member(s) nor Methodist agree to purchase the entire interest of the Member desiring to transfer at the price provided for in Section 18 within the time limits set forth in paragraph [16](b), then the Member desiring to transfer shall be free of the restrictions of this Section 16 for a period of ninety (90) days after the expiration of the cumulative sixty (60) day period in Section [16](b), and may offer, and transfer the interest to any -willing buyer, at the price provided for in Section 18.
18. PURCHASE PRICE; LIABILITIES. In the event of a purchase and sale required by Section 16 ..., the purchase price to be paid to the selling Member ... shall be based upon the “net book value” of the Company which shall be defined as all Company assets except real property minus all Company liabilities plus the appraised value of any real estate owned by the Company determined as of the date that a selling Member gives notice to the Company of his desire to sell or terminate.... The price to be paid shall be a proportionate part of that net equity, such proportion to be equal to the proportion of the Company owned by the selling ... Member.

In 2002, the parties began exploring the possibility of a change in the ownership structure of Riverside. In April 2002, the Physicians hired the Bloom Organization (“Bloom”) to prepare a valuation report of Riverside and provide strategic recommendations for the simultaneous purchase of Methodist’s interest in Riverside and re-syndication of that interest to a third-party ambulatory surgery center or management company. Dr. Jeffrey Swetnam, Chief Manager of Riverside, testified in his deposition that Bloom was consulted to determine the book value and fair market value of Riverside in order to establish the cost of buying out Methodist. Following Bloom’s valuation reports, the Physicians received several offers for Riverside, including one from Baptist Health Services, but none were accepted.

Later in 2002, Methodist began soliciting bids from various healthcare companies for the purchase of Methodist’s west Tennessee assets. In its bid requirement sheet, Methodist provided that, as part of the minimum requirements to bid, the bidding party “[m]ust agree to the acquisition of the assets (but not working capital) of all 7 hospitals, affiliated companies, physician practices, physician agreements and joint ventures.” Although Riverside was included among the assets listed in the bid sheet, Methodist claimed that all west Tennessee assets were included so that prospective bidders could not “cherry pick” the properties they wished to purchase. On August 29, 2002, Community Health Systems, Inc. (“CHS”) submitted a formal proposal to Methodist indicating its desire to purchase certain Methodist assets, including Methodist’s interest in Riverside. Methodist’s board of directors met on September 25, 2002 and, by resolution, authorized further negotiations with CHS through the execution of a letter of intent. The letter of intent stated, “[this letter agreement] ... memorializes the agreement between CHS and [Methodist] to work diligently and in good faith to negotiate, execute and deliver a definitive asset purchase agreement in substantially the form attached hereto as Exhibit A.” The following day, Methodist issued a press release announcing that it had entered into exclusive negotiations with CHS to sell seven of Methodist’s hospitals, along with associated operations.

On October 22, 2002, Dr. Swetnam wrote a letter to Methodist indicating that Methodist’s actions may have triggered the Physicians’ rights under Section 16 of the Operating Agreement and that the Physicians were in the process of determining the book value of the surgery center. As a postscript to the October 22, 2002 letter, Dr. Swetnam stated: “As per our discussion, should Methodist desire to make an offer for our 51%, please submit in writing.” Methodist promptly responded by letter advising the Physicians that it had not yet a made a final determination of whether it would sell its interest in Riverside and, therefore, had not sent notice of such intent to other members of Riverside.

On October 23, 2002, the day following Dr. Swetnam’s letter to Methodist, Methodist’s board of directors met and adopted another resolution regarding the proposed Methodist/CHS transaction. In that resolution, Methodist referenced the ongoing negotiations with CHS, including the letter of intent and draft asset purchase agreement listing Riverside as an asset. During the course of negotiations between Methodist and CHS, Dr. Swetnam met with representatives of both Methodist and CHS in an attempt to reach an agreement regarding the sale of either the Physicians’ or Methodist’s interest in Riverside, but the parties were unable to reach a satisfactory resolution.

At some point after October 23, 2002, Methodist withdrew its interest in Riverside from inclusion in the Methodist/CHS transaction, and, by letter dated November 27, 2002, Methodist informed Dr. Swetnam that it would retain its interest in Riverside. Therefore, the Methodist/CHS transaction closed on January 3, 2003 without the inclusion of Riverside. However, simultaneous with the closing of the Methodist/CHS transaction, Methodist executed an option agreement with CHS and Dyers-burg Hospital Corporation (“DHC”), a wholly owned subsidiary of CHS, that, conditioned upon the Physicians waiving their right of first refusal, (1) granted DHC an option to purchase Methodist’s interest in Riverside for a period of three years and (2) granted DHC, for a period of two years following the option period, a right of first refusal upon the sale of Methodist’s interest in Riverside (the “DHC Option/First Refusal Agreement”). Specifically, the DHC Option/First Refusal Agreement provided, in pertinent part, the following:

1. Option. For a period of three (3) years following the execution of this Agreement (the “Option Period”) and subject to the limitations set forth in Section 4 hereof, DHC may exercise the option (the “Option”) to acquire [Methodist’s 49% membership interest in Riverside] for the [amount of $1,800,000]. DHC may exercise the Option by sending written notice of the exercise of the Option (the “Option Notice”) to Methodist during the Option Period. Upon receipt of the Option Notice, Methodist shall make reasonable and good faith efforts to obtain the consents and approvals described in Section 4 hereof. ' If such consents and approvals cannot be reasonably obtained by Methodist within thirty (30) days of the Option Notice, [Methodist’s 49% interest in Riverside] will not be transferred, and DHC may exercise the Option at any time during the remainder of the Option Period.
2. Right of First Refusal. During the fourth (4th) and fifth (5th) years following the execution of this Agreement (the “Refusal Period”) and subject to the limitations set forth in Section 4 hereof, if Methodist desires to transfer all or any part of [its 49% interest in Riverside] to any person other than DHC, Methodist shall give to DHC written notice....
4. Consents and Approvals. Notwithstanding any other terms or provisions of this Agreement, Methodist shall not be required to transfer [its 49% interest in Riverside] or give notice of Methodist’s intent to transfer [such interest] unless and until Methodist has received all consents and approvals (including waivers of the transfer resfrie-tions) required by the Operating Agreement for the transfer of [Methodist’s 49% interest in Riverside] to a third party.

On May 2, 2008, the Physicians filed a complaint against Methodist, containing four counts: (1) a request for a declaratory judgment setting forth the rights, status, and obligations of the parties under the Operating Agreement, in light of the actions of Methodist; (2) a claim for breach of contract and request for specific performance based upon Sections 16 and 18 of the Operating Agreement; (3) a claim for breach of the duty of good faith and fair dealing; and (4) a third-party beneficiary claim on behalf of Riverside. Following Methodist’s answer and counterclaim, the Physicians filed a motion for partial summary judgment as to the first and second counts of their complaint asserting that, under Section 16 of the Operating Agreement, Methodist had triggered the Physicians’ “right of first refusal” by its “wish or desire” to sell its interest in Riverside. Methodist filed a cross motion for summary judgment asserting that the Physicians had erroneously interpreted the triggering provisions of Section 16 of the Operating Agreement and, in addition, that the Physicians’ claims should be barred by principles of equity due to their own actions during the course of the negotiations between Methodist and CHS. The trial court entered an order granting summary judgment to the Physicians, finding that, as a matter of law, the “trigger” under Section 16 of the Operating Agreement was the selling member’s “desire or wish” to transfer its membership interest. Finding that it was undisputed that Methodist wished or desired to transfer its interest, the trial court concluded that Methodist was in violation of Section 16 of the Operating Agreement by reason of its failure to give notice and its failure to offer its membership interest to the Physicians. In denying Methodist’s motion to alter or amend the judgment, the trial court referenced the fact that Methodist also possessed the “clear intent” to sell its membership interest in Riverside. However, the court found that possessing the “wish to sell” was a “preliminary step” and that Methodist had gone “far beyond that point in time.”

From the trial court’s order granting summary judgment to the Physicians, Methodist appeals and presents, as we perceive them, the following issues for our review:

(1) Whether the trial court erred in interpreting the Operating Agreement and thus erred in granting partial summary judgment to the Physicians on their claim that Methodist’s conduct with regard to the sale of its membership interest in Riverside triggered the Physicians’ right of first refusal;
(2) Whether the trial court erred in finding that there was no genuine issue of material fact as to whether Methodist wished or desired or alternately, intended, to sell its interest in Riverside;
(3) Whether the trial court erred in finding (a) that the doctrines of unclean hands, waiver and/or estoppel did not bar the Physicians’ claim for relief, including specific performance and injunctive relief, or (b) that there was no genuine issue of material fact as to this issue; and
(4) Whether the trial court erred by finding that Riverside Surgery Center, LLC had standing to sue in this case.

For the reasons stated herein, we affirm.

Standard of Review

We review an order granting 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). 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 (2004); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). Where a case involves purely legal issues, such as the interpretation of a written agreement, summary judgment is an appropriate method of disposition. Byrd, 847 S.W.2d at 210; Rainey v. Stansell, 836 S.W.2d 117, 118-19 (Tenn.Ct.App.1992). 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 but one conclusion based on the facts and the inferences drawn from those facts. Id.

Interpretation of the Riverside Operating Agreement

The Physicians contend that the trial court correctly interpreted the Operating Agreement to require only that Methodist’s “wish or desire” to sell its interest in Riverside was sufficient to trigger the Physicians’ rights under Section 16. Methodist, however, argues that a proper construction is that the triggering mechanism under Section 16 is the written notice of the specific intent to sell, rather than the subjective desire or wish to transfer a member’s interest. Further, Methodist characterizes the trial court’s ruling as essentially granting the Physicians a right of first negotiation, rather than a right of first refusal. We believe that neither party’s interpretation of the provision in question is completely accurate.

As this case involves the construction of a written agreement, we begin our analysis with a review of basic rules of contract interpretation. When interpreting a contract, the guiding principle is to “ascertain the intention of the parties and to give effect to that intention consistent with legal principles.” Rainey, 836 S.W.2d at 118 (citing Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975)). In determining the intent of the contracting parties, the court should look to the four corners of the document, and, where there is no ambiguity, the terms of the contract should be given their ordinary meaning. Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn.Ct.App.1995). The courts should also look to the subject matter of the agreement, the circumstances of the transaction giving rise to the particular issue before the court, and the prior conduct of the parties in carrying out the contract’s terms. Penske Truck Leasing Co., L.P. v. Huddleston, 795 S.W.2d 669, 671 (Tenn.1990).

In general terms, a “right of first refusal” is the generic label commonly used to describe a contractual right to preempt another. 3 Corbin on Contracts § 11.3, at 469 (Joseph M. Perillo ed., 1996). The conventional right of first refusal “is subject to an agreed condition precedent, typically the owner’s receipt of an offer from a third party and the owner’s good-faith decision to accept it.” Id. at 470. At that point, the right of first refusal “ripens” into an option, and the preemptive right holder may exercise his preemptive right to create a contract based on the same terms that the owner is willing to accept from the third party. See id. at 470-71. However, the triggering of the right of first refusal is dependent on the language of the contract and varies with the facts of the case. See e.g., Johnson v. Herren, C.A. No. 88-160-II, 1988 WL 119278, at *4 (Tenn.Ct.App. Nov. 10, 1988) perm. app. denied (Tenn. June 26, 1989)(“All that is required to trigger the right of first refusal is for Herren to make a sales offer. No third party need accept it.”); Sager v. Rogers, Sevier Law C.A. # 115, 1987 WL 6718, at *2 (Tenn.Ct.App. Feb. 20, 1987) perm. app. denied (Tenn. Aug. 3, 1987) (reasoning that right of first refusal was triggered at the instant the selling party was willing to accept the third party’s offer); Estate of Johnson v. Carr, 288 Ark. 461, 706 S.W.2d 388, 391 (1986) (holding that the preemptive right triggered by the owner’s “desire to sell” had not been invoked by letter stating that owner was “seriously considering” selling); Vietor v. Sill, 243 So.2d 198 (Fla.Dist.Ct.App.1971) (concluding that right of first refusal was invoked by an intention to sell, not a binding contract); New Haven Trap Rock Co. v. Tata, 149 Conn. 181, 177 A.2d 798, 800 (1962) (interpreting agreement to provide that it was necessary only for the seller “to give thought to or entertain the idea of selling” to trigger the right of first refusal).

The preemptive purchase right under Section 16 is unlike a traditional garden-variety right of first refusal because the price terms and other conditions are not determined by reference to a third-party offer, as in the case of a typical right of first refusal. The “right of first refusal” in the present case is more closely akin to what at least one court has termed a “right of first offer,” which entitles the holder the right to receive the first offer to purchase, with the sale price and other terms being provided for in advance in the agreement. Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 139 (3d Cir.2001). Under the Operating Agreement, when the preemption rights of Section 16 are triggered, Section 18 of the Operating Agreement expressly provides the method for ascertaining the sale price. Therefore, our decision as to whether the actions taken by Methodist triggered the Physicians’ “right of first offer” turns solely on the language of Section 16 of the Operating Agreement.

There is substantial evidence in the record reflecting that Methodist gave strong consideration to the inclusion of Riverside in the Methodist/CHS transaction, as demonstrated by the resolutions of Methodist’s board of directors, the letter of intent, and the draft asset purchase agreement. However, we agree with Methodist that Section 16 is not subjectively triggered by the selling member’s “wish or desire” to sell. At the same time, we do not believe, as Methodist argues, that the preemptive purchase rights under Section 16 are triggered simply by written notice of the final decision to sell. Rather, notice under Section 16 appears to merely be a procedural mechanism by which the Physicians are afforded the opportunity to exercise their preemptive purchase rights. Under Methodist’s strict interpretation, Methodist could theoretically defeat the Physicians’ preemptive purchase right by simply not providing notice.

Turning to the operative language of Section 16, it provides that “[a] Member may not sell, assign, or otherwise transfer (hereafter collectively transfer) all or part of its interest ... except as specified below.” Subsection (a) of Section 16 goes on to provide, “[t]he Member(s) wishing to transfer its interest must give written notice to all Members of the intent to transfer the interest, and must offer the Physician Members the first opportunity to purchase such interest.” Looking at subsection (a) of Section 16, the substance of the notice is a statement by the selling member of his or her intent to transfer. By necessity, the substantive intent to transfer must be formed before the notice is given. Therefore, we believe that the preemptive rights under Section 16 are triggered once the selling member possesses the intent to otherwise transfer his or her interest. At that point, the selling member is obligated to first offer the interest to the Physicians at the price structure provided for under Section 18. The parties were free to word the Operating Agreement as they saw fit, and it is our duty, as it was the Chancellor’s, to interpret the agreement.

In a different case, proving the selling member’s intent could present a significant obstacle to the party enforcing a similar provision. Under the undisputed facts of this case, however, we believe it is not so difficult. Without looking at the various board resolutions, the letter of intent, the draft asset purchase agreement and other paper work supportive of the Physicians’ position, we find that Methodist’s execution of the DHC Option/First Refusal Agreement was unequivocal evidence of its intent to otherwise transfer its interest in Riverside. Although Section 4 of the DHC Option/First Refusal Agreement states that the agreement is subject to the consent and approval of the Physicians, the agreement nonetheless clearly demonstrates Methodist’s intent to transfer its interest in Riverside. Therefore, we conclude that, by executing the DHC Option/First Refusal Agreement, Methodist triggered the Physicians’ preemptive rights under Section 16 of the Operating Agreement. Accordingly, we further conclude that the Physicians are entitled to summary judgment on this issue.

Unclean Hands

As a preliminary matter, although in its brief Methodist couches its argument in terms of unclean hands, waiver and estop-pel, we find nothing in Methodist’s brief pointing to any law or facts that meaningfully support any waiver or estoppel argument. Rather, it appears that Methodist’s only discernible argument on this point pertains to the doctrine of unclean hands. Methodist argues that the Physicians should be barred from equitable relief based on the Physicians’ own conduct during the course of this dispute. Methodist points to the Physicians’ commission of Bloom to prepare a valuation report on Riverside; the fact the Physicians did not raise the issue of the right of first refusal until almost a month after they learned of the negotiations between Methodist and CHS; and the fact that the Physicians met with Methodist and CHS representatives during this time and discussed the sale or resolution of the competing interests.

The doctrine of unclean hands has been explained as follows: “[A] complainant, who has been guilty of uncon-scientious conduct or bad faith, or has committed any wrong, in reference to a particular transaction, cannot have the aid of a Court of Equity in enforcing any alleged rights growing out of such transaction.” Hogue v. Kroger Co., 213 Tenn. 365, 373 S.W.2d 714, 716 (1962) (quoting Gibson’s Suits in Chancery § 51). “Once found, to exist, the doctrine of unclean hands repels the unclean plaintiff at the steps of the Courthouse.” Farmers & Merchants Bank v. Templeton, 646 S.W.2d 920, 924 (Tenn.Ct.App.1983). Our review of the record indicates that the actions taken by the Physicians during the Methodist/CHS negotiations amounted to nothing more than the lawful exercise of their rights and authority under the Agreement. There is nothing to indicate any wrongdoing, bad faith, or other behavior that would warrant the application of the unclean hands rule. Accordingly, we find this issue to be without merit.

Riverside’s Third Party Beneficiary Status

The Physicians filed this complaint in their individual capacity and in the name of Riverside Surgery Center, LLC, thus making Riverside a party to this action. Methodist contends that Riverside has no standing to sue in this case because Riverside is only included as a third party beneficiary to the Operating Agreement, and the complaint fails to state a claim for relief on behalf of Riverside under this theory. Methodist also contends that Riverside is not a party to the Operating Agreement and that the Operating Agreement was intended only to benefit the members, not Riverside itself. The Physicians argue that this issue is not ripe for appeal, and this Court lacks jurisdiction because the trial court’s decision on this issue was not made a part of the final order. Alternatively, the Physicians contend that Riverside is a party to the Operating Agreement within the meaning of sections 29-14-103, 48-206-101(c), and 48-212-101(2) of the Tennessee Code.

Under Rule 13(b) of the Tennessee Rules of Appellate Procedure, the appellate courts of this state may, in their discretion, consider certain issues in order “to prevent needless litigation.” Tenn. R.App. P. 13(b) (2004). Although the trial court’s decision on this issue was not made a final order, we will address it nonetheless. While the parties have focused heavily in their arguments on whether Riverside is an intended third-party beneficiary of the Operating Agreement, we believe the parties’ concentration is misdirected. Under Tennessee’s Limited Liability Company Act, the LLC itself is granted certain general powers “to do all things necessary or convenient to carry out its business and affairs.” Tenn.Code Ann. § 48-212-101 (2002). The first power granted to the LLC under section 48-212-101 is the power to “[s]ue and be sued, complain and defend in its LLC name.” Id. § 48-212-101(1). As the LLC and its member are bound by the LLC operating agreement under section 48-206-101(c), we believe any breach of the operating agreement would constitute the LLC’s “business and affairs.” See id. § 48-212-101. Thus, the LLC has the authority to sue in its name to enforce its operating agreement. Accordingly, we conclude that the trial court did not err in denying Methodist’s motion to dismiss Riverside for lack of standing.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are taxed to the appellant Methodist Health Systems, Inc. and its surety, for which execution may issue if necessary.

      . Section 29-14-103 of the Tennessee Code, Tennessee's Declaratory Judgment Act, provides as follows:
      Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.
      Tenn.Code Ann. § 29-14 — 103 (2000).

      . Section 48-206-101(c) of the Tennessee Code addresses the binding effect of an operating agreement on an LLC. That section provides as follows:
      BINDING EFFECT. Unless otherwise provided in the articles or in an operating agreement adopted or agreed to by all members and holders of binding contribution agreements, an operating agreement that has been adopted or agreed to by the required vote of the members and person or entity bound by a contribution agreement shall be binding on the LLC and its members, and any person or entity becoming a member or entering into a contribution agreement or a contribution allowance agreement and such person shall be deemed to have adopted and agreed to it.
      Tenn.Code Ann. § 48-206-101(c) (2002).

      .Section 48-212-101 of the Tennessee Code provides that "[tjhe LLC has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.” Tenn.Code Ann. § 48-212-101 (2002). Included among those general powers, the LLC has the power to “[m]ake and amend an operating agreement not inconsistent with its articles or with the laws of this state, for managing the business and regulating the affairs of the LLC.” Id. § 48-212-101(2).


text:
    Vanessa SIRCY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee.
    Court of Appeals of Tennessee, at Nashville.
    March 3, 2005 Session.
    May 3, 2005.
    Application for Permission to Appeal Denied by Supreme Court Nov. 28, 2005.

      J. Brooks Fox and John Kennedy, Nashville, Tennessee, for the Appellant, Metropolitan Government of Nashville and Davidson County, Tennessee.
    Shelley I. Stiles and John A. Barney, Brentwood, Tennessee, for the Appellee, Vanessa Sircy.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This is a breach of contract action involving employment with a government municipality. In this case, the defendant municipality offered the plaintiff a job as a dispatcher at an annual salary of approximately $30,000, and the plaintiff accepted the position. Meanwhile, the defendant underwent job reclassifications and salary restructuring. On the second day of the plaintiffs employment with the defendant, she was informed that she would be paid an annual salary of approximately $24,000. After working for approximately five and one-half months for the defendant, the plaintiff resigned, citing the uncertainty regarding whether the defendant would adjust her salary, as they had suggested. Following her resignation, the plaintiff brought this action. Following a bench trial, the trial court determined that the defendant had made promises of employment at a certain salary that induced the plaintiff to resign her position at her former employment, and the defendant had breached those promises. As a result, the trial court found that the plaintiff had suffered damages in the amount of $16,500. The defendant has appealed the judgment of the trial court. Because we conclude that the trial court erroneously calculated damages, we modify the judgment of the trial court.

Factual Background and Procedural History

In March of 1998, Vanessa Sircy (“Ms.Sircy”) began working at Vanderbilt Medical Center (‘Vanderbilt”) as a patient care technician. Sometime around the beginning of 2001, the Metropolitan Government of Nashville and Davidson County (“Metro”) posted on-line a job opening for the position of “Fire/EMT Dispatcher” at a stated annual salary of $29,998. On or about January 14, 2001, Ms. Sircy applied for the position through an on-line application. Metro contacted Ms. Sircy, and she interviewed for the position with a panel of Metro officials, including Chief Mary Kathleen Whisenant (“Chief Whisenant”), the superintendent of communications who oversaw all dispatchers for the Fire Department and Emergency Medical Systems. Chief Whisenant telephoned Ms. Sircy a couple of weeks after the interview to inform Ms. Sircy that Metro intended to offer her the position, pending the successful completion of pre-employment testing. After Ms. Sircy passed these tests, Chief Whisenant again called Ms. Sircy to offer her the job as Fire/EMT Dispatcher, which she accepted.

In the meantime, however, Metro had commissioned a study regarding job classifications and salary structure (the “Mercer Study”). The findings of the Mercer Study were released in April of 2001. Based on the recommendations of the Mercer Study, new hires for the position of Fire/EMT Dispatcher were to be classified as “Emergency Telecommunicator One” (“ECO 1”) and be paid a significantly lower salary than that paid to existing Fire/ EMT Dispatchers. Existing Fire/EMT Dispatchers were grandfathered into the position of “Emergency Telecommunicator 3” (“ECO 3”) and were given a significant increase in salary. The changes imposed as a result of the Mercer Study created a level of uncertainty within Metro regarding Ms. Sircy’s prospective employment status. In addition to being uncertain whether Ms. Sircy would be hired as a Fire/EMT Dispatcher or as an ECO 1, Metro was unsure what salary she would be paid.

Despite the confusion surrounding Ms. Sirens position, Chief Whisenant was directed by her immediate supervisor, Chief Poole, not to tell Ms. Sircy about the potential job reclassification. However, around this same time, Ms. Sircy met with Michelle Smith (“Ms.Smith”), an administrative assistant to Chief Poole, to complete some paper work. In her testimony, Ms. Smith stated that she told Ms. Sircy and other applicants at “a meeting” that the status of the job position was in doubt. However, Ms. Smith gave conflicting testimony regarding whether she told Ms. Sir-cy and the other applicants about a potential reduction in salary. Ms. Sircy testified that she could not remember any such meeting where she was informed by Ms. Smith about the confusion regarding the position and pay.

The changes imposed as a result of the Mercer Study took effect on the effective date Ms. Sircy was to begin her employment with Metro, July 1, 2001. The job reclassification eliminated the position of Fire/EMT Dispatcher, and that position was thereafter known as “ECO 3” and paid an annual salary of $37,200. After resigning from her job at Vanderbilt, Ms. Sircy began her employment with Metro on Monday, July 2, 2001. On her second day, Ms. Sircy discovered that she had been hired as an ECO 1, rather than a Fire/EMT Dispatcher. In addition, she learned that she would not be paid the advertised salary of $29,998, but, instead, she would be paid an annual salary of $23,949, although she performed the same duties as those performed by an ECO 3. Metro was also unable to inform Ms. Sircy about the department’s policy regarding salary increases for the position of ECO 1.

Soon after learning about the change in position and salary, Ms. Sircy attempted to have this matter resolved by speaking with different officials within Metro. She met with Chief Whisenant, and in response to Chief Whisenant’s inquiry, Chief Poole stated that Ms. Sircy “could take it or leave it.” Ms. Smith testified that she was not surprised that Ms. Sircy was upset because, as she stated in her testimony, “everybody thought they were going to be dispatchers.” During that same time, Ms. Sircy contacted Kevin Neville, the union representative, who informed her that he could not represent her because she was not an employee of the Fire Department. She also e-mailed Chief Meador, a high ranking Chief within the department, who assured her that he would keep her apprised of her situation, but he never responded further. In the following weeks and months, Chief Whisenant consistently assured Ms. Sircy that officials within Metro were working towards resolving this matter.

After working approximately five and one-half months as an ECO 1, Ms. Sircy resigned from Metro on December 13, 2001. Her resignation letter provided as follows:

Please accept this as my resignation from my position with the Nashville Fire Department. Due to the events that took place after I was hired[,] concerning my position and salary, I am unable financially to continue with the department. Since no decisions have been made about my pay or about the current scale I am working under, I am also unable to make an informed decision about my future situation.
/s/ Vanessa D. Sircy 12/13/01

After resigning from Metro, Ms. Sircy was able to obtain the same position she once held at Vanderbilt. However, because she took the job with Metro and left Vanderbilt, she lost the benefits she once enjoyed as senior member in her department. She was required to work weekend and holiday shifts for a year, where she once enjoyed preference in scheduling. Additionally, her new position with Vanderbilt was for fewer hours per week and provided less opportunity to work overtime shifts. She also missed one scheduled pay increase due to taking the position with Metro. Finally, Ms. Sircy lost the three and one-third years of credit which she had accrued towards education benefits at Vanderbilt University.

On March 19, 2002, Ms. Sircy filed her complaint. Following a bench trial, the trial court entered a thirteen page memorandum and order finding that Metro had breached its promise of employment to Ms. Sircy. In its order, the trial court found that “[Metro] offered Ms. Sircy a definite job with a definite pay under circumstances that it should have known would cause her to detrimentally change her employment with Vanderbilt.” The trial court went on to state that “[Metro] breached its promise to Ms. Sircy and must be responsible to her for contract damages.” The trial court awarded Ms. Sircy $16,500 in damages, and, from this order, Metro appeals.

On appeal, Metro presents the following issues, as restated, for our review: (1) whether the trial court erred by finding Metro liable for breach of “contract by estoppel” or “implied contract,” and (2) whether the trial court erred in its calculation of damages.

Standard of Review

In matters tried by a judge sitting without a jury, we review the trial court’s findings of fact de novo upon the record, accompanied by a presumption of correctness. Tenn. R.App. P. 13(d)(2004). Those findings of fact will be affirmed unless contradicted by a preponderance of the evidence. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). Where the trial court’s factual conclusions rest on the evaluation of a witness’s credibility, we will not re-evaluate that assessment of witness credibility absent clear and convincing evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999). However, we review a trial court’s conclusions on questions of law under a pure de novo standard, and no presumption of correctness attaches to such conclusions. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Contract Liability of Metro

The parties frame the issues in terms of promissory estoppel. However, after reviewing the facts alleged in the complaint, we are satisfied that the gravamen of the complaint states a cause of action for breach of contract. Further, the evidence presented at trial demonstrates that this is a breach of contract action.

In this case, the following facts are essentially undisputed. Metro advertised the opening for the Fire/EMT Dispatcher position at a salary of $29,998 per year. Ms. Sircy interviewed for that position. She was offered the Fire/EMT Dispatcher job, and she accepted. After she arrived at her new job, she was informed that she would not be paid the salary she had been promised. In order to take the position at Metro, Ms. Sircy resigned her position with Vanderbilt, thus forfeiting a number of accrued benefits. The trial court found that Metro had breached its promise to Ms. Sircy and, as a result, should be liable for contract damages.

Based on its theory that this is purely an “estoppel” or “implied contract” case, Metro argues that it cannot be held liable under an estoppel theory because it did not take “affirmative action that clearly induced [Ms. Sircy] to act to her detriment.” See Bledsoe County v. McReynolds, 703 S.W.2d 123, 125 (Tenn.1985). Metro relies almost exclusively on the testimony of Ms. Smith for its argument that Ms. Sircy was not “clearly induced” to take the position. Ms. Smith testified that, pri- or to beginning her employment, Ms. Sircy was informed about the possibility of a job reclassification. However, in our review of Ms. Smith’s testimony, she appears to give conflicting answers regarding whether she informed Ms. Sircy about the change in salary. At one point, Ms. Smith testified that she communicated to Ms. Sircy and the other applicants that Metro was “not sure” about the pay change, and “it could be this at this salary or this at this salary.” However, despite the foregoing testimony, she later stated, “I didn’t tell them the salary one way or the other. The position, I did.” Metro contends that any inducement to leave Vanderbilt and take the position with Metro was negated by the statements of Ms. Smith to Ms. Sircy and the other applicants.

After hearing the testimony of the witnesses, the trial court found that Ms. Sircy was not informed of the change in position and salary until after she began her employment with Metro. In its memorandum and order, the trial court found that Ms. Smith’s testimony did not change this finding. As the trial court explained:

while Ms. Smith may have stated that there was some confusion about the job description, there was no mention about a change in pay nor any mention about a change in responsibility. Whatever Ms. Smith’s statements were, they were not sufficiently definite to put Ms. Sircy on notice that her pay or responsibilities were going to be changed after she reported to work.

There is disputed testimony in the record regarding whether and to what extent Ms. Sircy was informed about the changes pri- or to taking the job at Metro. In addition, there is ample evidence to show that she was not so informed. Therefore, upon review of the record, we conclude that the evidence does not preponderate against the trial court’s findings. Accordingly, we affirm the trial court’s conclusion that Metro is liable to Ms. Sircy for breach of contract.

Damages

Having determined that Metro is liable for breach of contract, we ton to the issue of damages. In its memorandum and order, the trial court stated that it was approaching the award of damages as if this was a case involving the wrongful termination of an at-will employee. In so doing, the trial court awarded Ms. Sircy $6,500 for “back pay” and $10,000 for “front pay,” for a total award of $16,500. Our research, however, has revealed no authority for such a “hybrid” approach to an award of damages. In our opinion, this is a breach of contract case. Accordingly, we will review the trial court’s damages award in view of that determination.

Metro first insists that the trial court erred by not measuring damages by the amount of unjust enrichment to Metro. Metro 'Contends that, if damages were measured by the amount that Metro was unjustly enriched, Ms. Sircy has suffered no damages because Metro paid Ms. Sircy the market rate for her services. In support of its argument, Metro relies primarily on the cases of City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn.1988) and Brown v. City of Manchester, 722 S.W.2d 394 (Tenn.Ct.App.1986).

Metro contends that Baird stands for the proposition that, in determining the appropriate damages remedy in cases involving municipalities, the law distinguishes between whether the contract was performed or in the executory stage. We disagree with Metro’s interpretation of Baird. First, the guiding issue in Baird involved a determination of whether the City of Lebanon’s act of contracting with the defendant was ultra vires. Baird, 756 S.W.2d at 243-44. It was only in the context of this discussion involving ultra vires contracts that the court addressed the distinction between executory contracts and performed contracts. Id. In the case at bar, there is no issue as to whether the act of hiring Ms. Sircy was ultra vires, and we think this fact alone distinguishes Baird from this case. Further, the Baird court was determining whether an estop-pel could be applied under the facts of that case, but at no point in that discussion did the court state that the appropriate remedy should be based on a theory of unjust enrichment. See id. at 245.

Metro also contends that the trial court misapplied the case of Brown v. City of Manchester. See Brown, 722 S.W.2d at 394. In Brown, the plaintiff sued the city seeking the recovery of certain overtime compensation, which the mayor had allegedly offered through a letter circulated through the various city departments. Id. at 395. The trial court in Brown granted the City of Manchester summary judgment on the theory that the plaintiff could not recover because the mayor was without authority to bind the city under the facts of that case. Id. at 396. Thus, Brown also involved an ultra vires action by a government official, and is thus distinguishable on that fact alone. However, in vacating the summary judgment, this Court merely recognized that, despite ultra vires conduct and the lack of an express contract, a city may be held liable under theories of quantum meruit or es-toppel. Id. at 397. In Brown, we made no pronouncement, as' Metro suggests, that the appropriate remedy, in all cases similar to the one before us, is damages based on a theory of unjust enrichment.

Turning to the case at bar, in its award of $6,500 for “back pay,” the trial court described that amount as “[t]he difference between what the plaintiff was promised and what she received for the five (5) months she worked.” The record reflects, however, that this amount represents the difference in pay between what an ECO 1 and an ECO 3 earned under the newly imposed salary structure. Ms. Sir-cy was promised and accepted the position of Fire/EMT Dispatcher at the salary rate of $29,998 per ■ year, not the figure of $37,200, which the position of ECO 3 received after the Mercer Study changes went into effect. Therefore, Ms. Sircy’s damages for back pay should be calculated based on the salary to which she agreed to accept the position, $29,998. For approximately twenty-four weeks, Ms. Sircy worked at the pay rate of $28,949, earning $11,053.44. If she had been paid at the salary of $29,998, she would have earned $13,845.10 in those twenty-four weeks. Thus, the difference between what Ms. Sircy was promised and what she received was $2,971.68, rather than the $6,500 figure arrived at by the trial court.

In addition to its award of “back pay,” the trial court awarded Ms. Sircy $10,000 in “front pay.” In determining this figure, the trial court merely stated that it was applying the criteria set forth in Sasser v. Averitt, 839 S.W.2d 422, 433-34 (Tenn.Ct.App.1992). Sasser is a retaliatory discharge case and, as we alluded to above, has no application to this breach of contract case. As heretofore stated, Metro breached the contract with Ms. Sircy and she is entitled to recover damages resulting from that breach, which would not include “front pay.” Therefore, we modify the judgment of the trial court to reflect that Ms. Sircy suffered damages in the amount of $2,971.68.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment as modified. Costs of this appeal are taxed equally between the Appellant, The Metropolitan Government of Nashville and Davidson County and its surety, and the Appellee, Vanessa Sircy.

      . Ms. Sircy testified that once an employee had worked at Vanderbilt for five years, Vanderbilt would pay for one-hundred (100%) percent of both the employee's and the employee's children’s college tuition.