Arnett v. Domino's Pizza I, L.L.C.

• Decision Date: 24 July 2003
• Docket Number: No. W2001-02942-COA-R3-CV.,W2001-02942-COA-R3-CV.
• Citation: 124 S.W.3d 529
• Parties: Cedric ARNETT, et al. v. DOMINO'S PIZZA I, L.L.C., d/b/a Domino's Pizza, and Domino's Pizza, Inc., d/b/a Domino's Pizza.
• Court: Tennessee Court of Appeals

124 S.W.3d 529

Cedric ARNETT, et al. v. DOMINO'S PIZZA I, L.L.C., d/b/a Domino's Pizza, and Domino's Pizza, Inc., d/b/a Domino's Pizza.

No. W2001-02942-COA-R3-CV.

Court of Appeals of Tennessee, at Jackson.

January 22, 2003 Session.

July 24, 2003.

Application for Permission to Appeal Denied by Supreme Court December 22, 2003.

James W. Hodges, Jr., Regina Morrison Newman, Gregory D. Cotton and Kathleen L. Caldwell, Memphis, Tennessee, for the appellants, Cedric Arnett.

Jonathan C. Hancock and Katherine P. Griffin, Memphis, Tennessee, for the appellee, Domino's Pizza, L.L.C.

OPINION

DAVID R. FARMER, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY K. LILLARD, J., joined.

Ninety-two plaintiffs filed a claim against Domino's Pizza alleging violations of Tenn.Code Ann. § 4-21-101, et seq. (The Tennessee Human Rights Act), 42 U.S.C. 2000a (Title II), 42 U.S.C. § 1981, and intentional infliction of emotional distress. Domino's Pizza removed the cause to Federal District Court, which retained the 42 U.S.C. § 1981 claim and remanded the remaining claims to the circuit court. The trial court awarded summary judgment to Domino's Pizza and dismissed the action. We affirm in part, reverse in part, and remand for further proceedings.

Two plaintiffs in the present action, Keisha Chism (Ms. Chism) and Kenneth Moore (Mr. Moore), filed a previous suit against Domino's Pizza ("Domino's") in the United States District Court for the Western District of Tennessee, alleging discriminatory practices by Domino's in violation of 42 USC § 2000a ("Title II"), 42 USC § 1981, and the Tennessee Human Rights Act as codified at Tenn.Code Ann. § 4-21-101, et seq. ("THRA"). Their action also included a claim for intentional infliction of emotional distress. The district court denied Plaintiffs' motion for class certification and dismissed with prejudice the claim for intentional infliction of emotional distress. The court dismissed without prejudice the Title II and THRA claims, ruling that these claims more properly were brought in state court. The district court further ruled that Plaintiffs had established a prima facie case under § 1981. Ms. Chism and Mr. Moore non-suited their action in the district court.

In February 2001, ninety-two plaintiffs, including Ms. Chism and Mr. Moore, filed a complaint against Domino's in the Circuit Court for Shelby County. Plaintiffs are African-Americans who reside on or adjacent to Lundee Street in Memphis. Plaintiffs allege Domino's discriminates against them in violation of 42 U.S.C. § 2000a (Title II), 42 U.S.C. § 1981, and Tenn.Code Ann.§ 4-21-101, et seq. by refusing to deliver pizza to African-Americans residing in this area. Their complaint also includes a claim for intentional infliction of emotional distress. Plaintiffs additionally contend that Domino's assertion that it refuses to deliver to Lundee Street because of security concerns is merely a pretext for discriminatory behavior, since Domino's has delivered to the homes of a "female Caucasian" and "one or two other residents" of Lundee Street.¹ Plaintiffs seek injunctive relief enjoining Domino's from refusing to deliver to locations encompassing Southern Avenue and Lundee Street; $1 million each in compensatory damages; $50 million in punitive damages; pre-judgment and post-judgment interest; costs and attorney's fees.

Domino's removed the action to the United States District Court for the Western District of Tennessee on February 27, 2001. The district court granted Plaintiffs' motion to remand all but the 42 U.S.C. § 1981 action to circuit court.² Upon remand, in October 2001, the trial court awarded summary judgment to Domino's.³ On November 28, 2001, a notice of appeal from the judgment of the trial court was filed in this Court, naming "Cedric Arnett, et al" as appellants. (TR vol 4 at 539)

Issues Presented

The following issues, as we restate them, are presented for review by this Court:

(1) Whether the trial court's award of summary judgment was premature;

(2) Whether the trial court erred in determining Defendant is not a place of public accommodation under 42 USC 2000a, et seq.;

(3) Whether the trial court erred in determining Defendant is not a place of public accommodation under the Tennessee Human Rights Act;

(4) Whether the trial court erred in dismissing Plaintiffs' claim for intentional infliction of emotional distress;

(5) Whether the doctrine of collateral estoppel bars Plaintiffs' claims for intentional infliction of emotional distress, where the claim was dismissed with prejudice by the district court in the previous action.

Standard of Review

Summary judgment should be awarded when the moving party can demonstrate that there are no genuine issues regarding material facts 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); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998). Mere assertions that the nonmoving party has no evidence does not suffice to entitle the moving party to summary judgment. McCarley, 960 S.W.2d at 588. The moving party must either conclusively demonstrate an affirmative defense or affirmatively negate an element which is essential to the non-moving party's claim. Id. If the moving party can demonstrate that the nonmoving party will not be able to carry its burden of proof at trial on an essential element, summary judgment is appropriate. Id.

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 or that the moving party is not entitled to summary judgment as a matter of law. Id.; Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000). The nonmoving party cannot merely rely on the pleadings, but must demonstrate that essential elements of a claim exist by: 1) pointing to evidence that creates a factual dispute; 2) re-enforcing evidence challenged by the moving party; 3) offering additional evidence which establishes a material dispute; 4) submitting a Tenn. R. Civ. P. 56.06 affidavit explaining the need for additional time for discovery. McCarley, 960 S.W.2d at 588.

This Court reviews 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). In determining whether to award summary judgment, we must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in favor of the non-moving party. Staples, 15 S.W.3d at 89. Summary judgment should be awarded only when a reasonable person could reach only one conclusion based on the facts and inferences drawn from those facts. Id. If there is any doubt about whether a genuine issue of material fact exists, summary judgment should not be awarded. McCarley, 960 S.W.2d at 588.

The Court's primary objective when construing a statute is to effectuate the purpose of the legislature. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn.2000). Insofar as possible, the intent of the legislature should be determined by the natural and ordinary meaning of the words used in the statute, and not by a construction that is forced or which limits or extends the meaning. Id. Likewise, the Court must seek to ascertain the intended scope of the statute, neither extending nor restricting the scope intended by the legislature. State v. Morrow, 75 S.W.3d 919, 921 (Tenn.2002). The court's interpretation must not render any part of the statute "inoperative, superfluous, void or insignificant." Id. (quoting Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn.1975)). Rather, courts construe statutory provisions within the context of the entire statute, giving effect to its over-arching purpose. Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 151 (Tenn.Ct.App.2001). Courts must construe a statute reasonably, bearing in mind its objective, the harm it seeks to avoid, and the purposes it seeks to promote. Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342, 345 (Tenn.Ct.App.1997). Issues of statutory interpretation are questions of law which this Court reviews de novo, with no presumption of correctness attached to the determination of the trial court. Morrow, 75 S.W.3d at 921.

Jurisdiction of this Court

As an initial matter, we note that the notice of appeal filed in this Court named as appellants "Cedric Arnett, et al." This Court previously has opined that the listing of one or more named parties followed by the phrase "et al" on the notice of appeal is insufficient to satisfy the Tennessee Rules of Appellate Procedure. See Mairose v. Federal Express Corp., 86 S.W.3d 502 (Tenn.Ct.App.2002)(perm.app.denied). Tenn. R.App. P. 3(f) provides:

The notice of appeal shall specify the party or parties taking the appeal, shall designate the judgment from which relief is sought, and shall name the court to which the appeal is taken. An appeal shall not be dismissed for informality of form or title of the notice of appeal.

In Mairose, we noted that in 1993, the United States Congress amended Rule 3(c) of the Federal Rules of Appellate Procedure following the United States Supreme Court's ruling in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). Mairose, 86 S.W.3d at 510. We noted that the Torres court held that the use of the phrase "et al" was insufficient to provide notice of appeal in accordance with the Fed. R.App. P. 3(c) as it then existed. Id. at 509 (citing Torres, 487 U.S. 312 at 314, 108 S.Ct. 2405, 101 L.Ed.2d 285). In Town of Carthage v. Smith County, this Court adopted the United States Supreme Court's decision in Torres, observing that Tenn. R.App. P. 3(f) was identical, in pertinent part, to the pre-1993 amendment Fed. R.App. P. 3(c). Id. (citing Town of Carthage v. Smith County, No. 01-A-01-9308-CH00391, 1995 WL 92266 at *3 (Tenn.Ct.App. Mar.8,...