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Posted by: Stacey Shrader Joslin on Nov 23, 2016

Head Comment: CORRECTION: The citation to Tennessee Rule of Civil Procedure 12.03 is changed to 12.02 in two places, once on page one and once on page six. Also on page six, the first clause in the quotation from the rule is changed from “If, on a motion for judgment on the pleadings…” to “If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted…” Finally, the change to page six affects pagination on pages six and seven.

Court: TN Court of Appeals

Attorneys 1:

Wilson C. von Kessler, II, Chattanooga, Tennessee, and Jay Michael Barber, Atlanta, Georgia, pro hac vice, for the appellant, Don Lepard, qui tam for the City of Chattanooga.

Attorneys 2:

Frederick L. Hitchcock and Catherine S. Dorvil, Chattanooga, Tennessee, for the appellee, Electric Power Board of Chattanooga.

Judge(s): FRIERSON

This is a qui tam action brought by the plaintiff on behalf of himself and the City of Chattanooga (the City) against the Electric Power Board of Chattanooga (EPB). The plaintiff filed a complaint pursuant to the Tennessee False Claims Act (TFCA), see Tenn. Code Ann. §§ 4-18-101 to -108, alleging that EPB had overbilled the City for approximately twenty years by billing for lights not in existence and applying an incorrect energy cost calculation. EPB subsequently filed a motion to dismiss with supporting memorandum and attachments, asserting, inter alia, that EPB and the City were the same entity and that the City could not sue itself. Upon the plaintiff's motion, the trial court, pursuant to Tennessee Rule of Civil Procedure 12.02, treated EPB's motion to dismiss as a motion for summary judgment. Following a hearing, the trial court denied EPB's motion upon finding that the relationship between the City and EPB was an issue of disputed material fact. However, upon EPB's request for reconsideration and the filing of additional pleadings and attached documents, the trial court found that the issue of EPB‘s relationship to the City was a matter of law. Following a second summary judgment hearing, the trial court granted summary judgment in favor of EPB based on a finding that an action brought by the City against EPB would constitute an impermissible case of the City's suing itself. The plaintiff appeals. Although we determine that the trial court erred by denying the plaintiff's motion to amend the complaint, we further determine this error to be harmless because the plaintiff's additional claims would not have been able to survive summary judgment. Discerning no reversible error, we affirm.