Rampy v. ICI Acrylics, Inc.

• Decision Date: 24 October 1994
• Citation: 898 S.W.2d 196
• Parties: Kathryn Grace RAMPY, Plaintiff/Appellant, v. ICI ACRYLICS, INC., Bailey Hurley, Ted Warf, Beverly Martin, and Linda Elmore, Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 196

898 S.W.2d 196

Kathryn Grace RAMPY, Plaintiff/Appellant, v. ICI ACRYLICS, INC., Bailey Hurley, Ted Warf, Beverly Martin and Linda Elmore, Defendants/Appellees.

Court of Appeals of Tennessee Western Section at Jackson.

Oct. 24, 1994.

Application for Permission to Appeal

Denied by Supreme Court April 3, 1995.

Larry E. Parrish, Memphis, for plaintiff/appellant.

Cary Schwimmer and John Marshall Jones, Young & Perl, P.C., Memphis, for all defendants/appellees except for Linda Elmore.

TOMLIN, Presiding Judge, Western Section.

Kathryn Grace Rampy ("plaintiff") filed suit in the Chancery Court of Shelby County against ICI Acrylics, Inc., Bailey Hurley, Ted Warf, Beverly Martin and Linda Elmore ¹ (collectively, as "defendants" or by individual name), seeking damages for alleged wrongful termination, breach of an at will employment contract, breach of an alleged duty of loyalty and/or fair play, promissory estoppel, negligent supervision, civil conspiracy and vicarious liability for civil conspiracy. Pursuant to T.R.C.P. 12.02(6), all defendants filed motions to dismiss the complaint for failure to state a claim for which relief can be granted. Following a hearing, the chancellor dismissed plaintiff's complaint with prejudice as to all counts.

On appeal, plaintiff has presented four issues to this court for review: whether the trial court erred, in accordance with applicable Mississippi law, (1) in dismissing plaintiff's complaint with prejudice; (2) in dismissing all asserted and unasserted claims, by whatever nomenclature, other than her claim for wrongful termination; (3) in dismissing plaintiff's claim for wrongful termination of employment; and (4) in finding that defendants had not waived their right to assert as a defense the lack of in personam jurisdiction.

For the reasons hereafter set forth, we find no error and affirm the decree of the chancellor. Because the first three issues taken as a whole contend that the trial court erred in granting defendants' T.R.C.P. 12.02(6) motion to dismiss with prejudice, we will discuss those issues as one. As our disposition of this issue is dispositive of this appeal, we pretermit plaintiff's fourth issue.

Under our rules of civil procedure, a motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the pleading setting forth the party's cause of action ². No argument in support of, or against, the complaint can add or detract from it. Plaintiff's complaint "must stand or fall upon its allegations unaffected by the approbation of its author or denunciations of the defense, as expressed in oral argument." Cornpropst v. Sloan, 528 S.W.2d 188, 190 (Tenn.1975). A 12.02(6) motion admits the truth of all relevant and material allegations contained in the complaint, but asserts that such facts do not state a cause of action for which relief can be granted. Id. at 190.

A dismissal under T.R.C.P. 12.02(6) is warranted only where no set of facts contained in the pleading will entitle plaintiff to relief. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn.App.1992). It is inappropriate for the court to create a claim where none exists. Id. at 273. The trial court, as well as this court, must take all well-pleaded, material factual allegations as true, construing the complaint liberally in favor of plaintiff. Lewis v. Allen, 698 S.W.2d 58, 59 (Tenn.1985).

The relevant portions of plaintiff's lengthy complaint read as follows:

17. ICI, from products manufactured at the Olive Branch Plant, has annual sales of approximately $36 million.

18. On or about March 23, 1989, Rampy, in response to a blind want ad in The Memphis Commercial Appeal newspaper, inquired about a job opportunity.

19. In response to the aforesaid (p 18) inquiry, Rampy was contacted by ICI executives and asked to submit to a job interview process.

20. On request of ICI executives, as aforesaid (p 19), Rampy submitted to a job interview process with ICI executives.

21. Through a series of interviews by many separate ICI executives, including, primarily, the ICI executive most directly responsible, from ICI Headquarters, for oversight of the Olive Branch Plaint, Ron McCoy (hereinafter "McCoy"), and the plant manager of the Olive Branch Plant, Marinus Vader (hereinafter "Vader"), and interchange occurred between Rampy and ICI preliminary to Rampy agreeing to accept employment with ICI.

22. At the time Rampy was engaged in the interview process with ICI, as aforesaid (p 20, p 21), Rampy was being interviewed by other prospective employers and in order to accept employment with ICI, it was necessary for Rampy to cut off further negotiations with other prospective employers.

23. Before Rampy agreed to accept the offer of employment by ICI, ICI described, in detail, the job responsibilities which Rampy would be expected to perform, including, but not limited to, plans for significant and material changes in systems and operation philosophy at the Olive Branch Plant which Rampy would be expected to implement.

24. Before Rampy agreed to accept the offer of employment by ICI, ICI described that, as the person in charge of devising and executing methodologies to implement the aforesaid (p 23) significant and material changes, Rampy should expect to encounter resistance from Olive Branch Plaint employees and be prepared to make unpopular personnel and systems changes as required.

25. The aforesaid (p 23) significant and material changes were provided to Rampy in written form in June 1989, the month after Rampy agreed to accept the offer of employment by ICI.

26. A true and exact copy of the aforesaid (p 25) writing provided, to Rampy in June 1989 is attached as Exhibit A hereto.

27. Before agreeing to accept the offer of employment by ICI, Rampy was told by ICI that the aforesaid (p 26) significant and material changes, were necessitated by the fact that the Olive Branch Plant, shortly theretofore, had been acquired as a going concern by ICI, with employees of the acquired company remaining in place and, the operation thereof had to be conformed to the operational philosophies of ICI.

28. Before agreeing to accept the offer of employment by ICI, Rampy was told that, if Rampy accepted an offer of employment by ICI, Rampy would become responsible for employees who had been accustomed, throughout their tenure as employees of the acquired company, to systems, philosophies and procedures of operation significantly and materially different from those which ICI would expect Rampy to implement.

29. The company acquired by ICI, as aforesaid (p 27), had been in continuous operation for approximately forty years.

30. Before Rampy agreed to accept the offer of employment by ICI, Rampy was told by ICI that many of the supervisory and other personnel who would be involved in the aforesaid (p 23, p 26) significant and material changes to be implemented by Rampy had been relatively long-term employees, some with decades of tenure, with the acquired company and to whom the aforesaid (p 23, p 26) significant and material changes might appear threatening.

31. Before Rampy agreed to accept the offer of employment by ICI, Rampy was told by ICI that Rampy would be the only employee, among approximately one hundred and ten other employees, of ICI assigned to the Olive Branch Plant who had not previously been employed at the Olive Branch Plant by the company acquired by ICI as aforestated (p 27, p 28, p 29, p 30).

32. Before agreeing to accept the offer of employment by ICI, Rampy was told by ICI that, if Rampy accepted employment, Rampy would be directly answerable to no person at the Olive Branch Plant other than the plant manager (p 21 above), who was directly answerable to the ICI Headquarters executives (p 21) with oversight over the Olive Branch Plant and, in addition to having direct responsibility for the Olive Branch Plant accountant, the Olive Branch Plant purchasing manager, the Olive Branch safety coordinator, the Olive Branch Plant production scheduling coordinator, the Olive Branch Plant payroll administrator and the Olive Branch Plant receptionist/secretary, Rampy would be responsible for implementation of personnel functions and systems, through other Olive Branch Plant management and supervisory staff, on a plant-wide basis.

33. Before Rampy agreed to accept the offer of employment by ICI, Rampy was told by ICI that she would be the first-ever female to assume a management role at the Olive Branch Plant, either before or after acquisition of the Olive Branch Plant from its former owner, involved in managing personnel.

34. Rampy speaks with a notable accent indicating that Rampy has not been reared in the southern part of the United States.

35. When Rampy accepted the offer of employment by ICI, all of the ICI employees assigned to the Olive Branch Plant who held management or supervisory positions, except two other male employees, were native to the South and, with rare exception, most employees at the Olive Branch Plant were reared in the surrounding geographical area.

36. Having been induced so to do by the implicit promise of ICI to support and authoritatively stand behind Rampy, so long as Rampy performed her assigned job responsibilities competently and remained loyal to ICI, in the face of whatever resistance manifested itself from ICI employees, attributable to the faithful job performance of Rampy, Rampy agreed, on May 17, 1989, to accept employment offered to Rampy by ICI and to assume a position as a member of the management staff at the Olive Branch Plant in charge of personnel and all other aspects of office management.

37. For so long as McCoy (p 21) and Vader (p 21) remained in positions of authority over Rampy at ICI, ICI remained faithful to the aforesaid (p 36) promise of ICI.

38. In October 1991, McCoy was reassigned by ICI to a special assignment for worldwide engineering.

39. In March 1992, McCoy was promoted to Director of Safety, Health and...