Richard Michelhaugh v. Consolidated Nuclear Security, LLC

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 19, 2016 Session

RICHARD MICHELHAUGH, ET AL. v. CONSOLIDATED NUCLEAR

SECURITY, LLC

Appeal from the Circuit Court for Anderson County

No. B5LA0168 Donald Ray Elledge, Judge

No. E2016-01075-COA-R3-CV-FILED-NOVEMBER 28, 2016

This appeal arises from a dispute over vacation benefits. Richard Michelhaugh and John

Williams (“Plaintiffs”), employees of Y-12 in Oak Ridge, filed suit in the Circuit Court

for Anderson County (“the Trial Court”) against the contractor, Consolidated Nuclear

Security, LLC (“CNS”), running their work site. Plaintiffs alleged that CNS deprived

them of earned vacation time by changing the vacation policy mid work-year. CNS filed

a Rule 12 motion to dismiss, which the Trial Court granted. Plaintiffs appeal to this

Court. We find and hold that Plaintiffs alleged in their complaint that they were deprived

of earned vacation time, that Plaintiffs’ allegations were sufficient to withstand CNS’s

motion to dismiss, and that, therefore, the Trial Court erred in granting CNS’s motion to

dismiss. We reverse the judgment of the Trial Court and remand this case for further

proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Gregory F. Coleman and Mark E. Silvey, Knoxville, Tennessee, for the appellants,

Richard Michelhaugh and John Williams, on behalf of themselves and others similarly

situated.

Kristi McKinney Stogsdill and Charles E. Young, Jr., Oak Ridge, Tennessee, for the

appellee, Consolidated Nuclear Security, LLC.

OPINION

Background

As this case was dismissed by the granting of CNS’s motion to dismiss, the

facts as set out in this Opinion are those relevant and material factual allegations

contained in the complaint. Plaintiffs initiated this case in response to CNS altering their

vacation benefits policy mid-year. CNS contracted to lead operations at Y-12 in Oak

Ridge. The prior contractor, B&W, had set up a vacation policy whereby salaried

employees would accrue a year’s worth of vacation time that was awarded in a lump sum

at the end of the year. For example, a salaried employee’s vacation time was earned

throughout 2012, but was awarded in a lump sum on December 31 of that year. If an

employee retired on January 1, 2013, the employee could cash in that unused vacation

time. The Vacation Plan described the vacation time as “vested.”

The Vacation Plan provided in relevant part:

PURPOSE

It is the policy of B&W Technical Services Y-12, LLC [the predecessor

contractor to CNS] to provide annual vacation with pay during each

calendar year to eligible employees. Rules pertaining to hourly employees

are contained in the applicable collective bargaining agreement. This

procedure replaced Y11-114, Vacation Plan, dated 04/09/08 and applies to

all B&W Technical Services Y-12 salaried employees.

APPLIES TO

This procedure applies to all Y-12 employees. No provision of this

procedure shall be construed as an employment agreement.

***

BUSINESS RULES

B. Vested Rights to Vacation Eligibility for Salaried Employees

A salaried employee has vested rights to next calendar year’s vacation if all

of the following are applicable:

• The salaried employee was hired prior to January 1, 1996, or was

reinstated on or after January 1, 1996, with immediate restoration of prior

service which results in an adjusted company service date of December 31,

1995, or earlier;

• The salaried employee has completed one year of company service credit;

and

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• The salaried employee was on the payroll of the company on December

31.

NOTE An employee’s company service date may be reinstated or adjusted

based upon criteria established in Y11-120, Company Service Credit Rules

and Adjustments.

1. Vested Rights to Vacation Eligibility for Full-Time Salaried Employees

Who Are Absent On December 31

a. An employee is considered to be vested for vacation eligibility the

following year if on December 31 the employee is absent due to disability

and is receiving Non-Occupational or Occupational Short-Term Disability

benefits.

b. An employee who is actively at work and is processed for termination on

what otherwise would have been the employee’s last normally scheduled

work day in the month of December is considered on the payroll through

the last calendar day of that month and is therefore vested for vacation

eligibility for the following year.

NOTE Exceptions to this policy can be made by the President & General

Manager in special circumstances.

c. An employee who begins a continuous vacation absence prior to

December 31 which extends through the end of the calendar year is

considered vested for vacation eligibility for the following year.

d. An employee is NOT considered to be vested for vacation eligibility for

the following year if the employee dies prior to December 31. The

employee will be considered to be on the payroll only as of the employee’s

last scheduled work day on which vacation was taken.

2. Vacation Eligibility for Part-Time Employees Rehired with an Adjusted

Company Service Date Prior to January 1, 1996 Part-time employees

reinstated on the payroll with an immediate restoration of prior service

which results in an adjusted company service date are eligible for vacation

on a prorated basis.

During the first year of rehire with an immediate restoration of company

service, vacation eligibility for part-time employees will be prorated at 50%

of full-time regular employees using the Vacation Schedule in Appendix B.

Thereafter, each succeeding calendar year’s vacation is established and

prorated on the basis of actual hours worked during the prior calendar year

rounded to the next highest 5 percent.

CNS assumed control of operations at the site in mid-2014, and initially

continued the old vacation policy. On December 11, 2014, CNS issued a standing order

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changing the vacation policy. From January 1, 2015 on, vacation time would be earned

throughout the year, rather than awarded in a lump sum at the end of the year. CNS

posted on its website:

What happens to my 2014 accrued vacation?

Accrued vacation hours in your “bank” as of December 31, 2014, up to a

maximum of 240 hours, will be carried over to your CNS PTO account.

Accrued hours over 240 will be paid out as soon as administratively

possible after the first of each year.

http://www.ens-11c.us//faqs

Richard Michelhaugh, an employee, and later, as amended, Plaintiffs filed suit in a

putative class action. Plaintiffs alleged in part:

17. At the beginning of 2015, those employees of Y-12 who retired

at the end of CY 2014 were told by CNS that their unused vacation payout

at the time they retired did not include the value of vested vacation earned

during CY 2014.

18. Similarly, currently active employees in 2015 who would have

had access to vacation earned during CY 2014 on January 1, 2015 had their

vested vacation arbitrarily removed by CNS.

19. These active and retiring employees thus lost a valuable vested

vacation benefit at the arbitrary election of CNS.

***

63. Without justification, CNS breach its employment agreements

with Plaintiffs and the members of the Classes by changing the vacation

policy to eliminate vested vacation benefit owed to the Plaintiffs and the

members of the Classes.

64. As a direct and proximate result of CNS’s breach of the

provisions of Vacation Plan, Number Y11-114, Revision 12/13/12, the

Plaintiffs and the members of the Classes have suffered harm for current

employees in the form of lost accrued vacation earned during calendar year

2014, and for employees who retired at the end of calendar year 2014 in the

form of lost monetary value for vacation accrued during calendar year

2014.

***

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72. Notwithstanding the material nature of the vested vacation

benefits information that the CNS misrepresented, it never acted to correct

the misinformation given to the Plaintiffs and the members of the Classes,

but instead acted to reinforce and conceal their misrepresentations about the

nature, scope, security and immutability of the vested vacation benefits

through a company-wide pattern and practice of continued, pervasive

misstatements and omissions, including the written documents cited herein.

73. If the Plaintiffs’ and members of the Classes’ vacation benefits

were not in fact vested, then CNS breached its fiduciary duties on a

continuing basis by negligently and/or fraudulently misrepresenting the

nature of the vacation benefits through its failure to clearly and

conspicuously disclose to the Plaintiffs and the members of the Classes: 1)

complete, accurate and non-misleading material information regarding the

possibility of changing the benefits provided under Vacation Plan, Number

Y11-114, Revision 12/13/12 so as to deprive the Plaintiffs and the members

of the Classes of vested benefits; 2) the material information that these

Vacation Benefits were not vested; and 3) that changes were possible

and/or were under serious consideration.

***

WHEREFORE, Plaintiffs respectfully requests that this Court issue an

Order that will:

A. Certify this action as a class action, appoint the Plaintiffs named

herein as Class representatives and appoint the undersigned attorneys as

counsel for the class.

B. Declare that the Plaintiffs and the members of the Classes are

entitled to reinstatement and restoration of their vested vacation benefits to

which they were entitled under Vacation Plan, Number Y11-114, Revision

12/13/12.

C. Preliminarily and permanently enjoin CNS from implementing

the changes to the vacation plan it initiated on January 1, 2015, and require

CNS to return to and maintain the vested vacation benefits that Plaintiffs

and the members of the Classes had earned during calendar year 2014.

D. In the alternative, grant the Plaintiffs and the members of the

Classes monetary damages as necessary to restore them to the position in

which they would and should have been in but for CNS’s breach of the

provisions of Vacation Plan, Number Y11-114, Revision 12/13/12.

E. Award Plaintiffs and the members of the Classes prejudgment

interest.

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F. Award Plaintiffs and the members of the Classes attorney fees and

reasonable costs as allowed under the law;

G. Grant such further relief as may be deemed necessary and proper.

H. Plaintiffs and the members of the Classes request a jury trial of all

issues so triable.

CNS filed a Rule 12 motion to dismiss for failure to state a claim, arguing

that (1) there was no employee contract; (2) CNS changed the policy before Plaintiffs’

vacation benefits vested; and, (3) Tennessee law recognizes no fiduciary duty or duty of

good faith for an employer in the context of this case. The Trial Court heard CNS’s

motion to dismiss in April 2016. In May 2016, the Trial Court entered an order granting

CNS’s motion to dismiss. The Trial Court’s oral findings, incorporated into its final

judgment, stated in relevant part:

We are here under a Rule 12 motion, and obviously under the terms of the

Tennessee Rules of Civil Procedure, Rule 12, when that motion is filed,

they are acknowledging that the issues are admitted for the purposes of this

motion, but that does not acknowledge the interpretation of the law or the

interpretation by the Court of what the law is that pertains to those issues.

This is a case where CNS took over on or about July the 1st, 2014, began as

a new employer for the workers there at the plant. They -- they on

December the 11th, 2014 made an announcement concerning a change in

the policy that was in existence by the previous employer. That policy

totally changed what was called the vested rights -- the vested -- the vesting

of vacation rights. They changed it before December the 31st, 2014. The

issue is whether or not the vacation policy by both the predecessor and

CNS was in fact a contract. There is no question that on page four of the --

let me find it - - page four of the policy it actually states this is not - - this

procedure applies to all Y-12 employees, no provision of this procedure

shall be construed as an employment agreement. That means subject to the

terms and the conditions of any contract you have, if any, this doesn’t

apply. This is not an employment agreement, it’s a benefit. It goes on to

say, “Our employees are governed by the terms and applicable bargaining

unit contracts.” The case law that I read supports that. Did they breach a

contract? No. There is not a breach of contract in my mind. In reading the

case laws that applied, I just cannot find that there is a breach of contract.

To hold that any employer who comes in and takes over a business is bound

forever and ever to do exactly what the prior employer did is not law that

I’m aware of in any state in this nation. They have a right to amend and

alter their policies and procedures. And, in this case, the vacation policy,

not contract, was altered and amended before the vesting on December

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31st, 2014. The Court finds they had the ability to do that. I would have to

agree with Counsel that Mr. Silvey did a wonderful job on the fiduciary

duty. Because that one hit me. I started looking through that and I thought

that is an ERISA or very similar to an ERISA without saying ERISA. But

it’s unique and, again, shows the intelligence and professionalism of the

attorney for the plaintiffs. It’s a unique plan. But, of course, if it was

alleged to be ERISA, I wouldn’t have jurisdiction; Federal Court would

have jurisdiction. So the expectation of a benefit is not the vesting of a

benefit, it’s simply an expectation. In this case, the Court finds -- let me

make some more findings – I’ve done several -- so I find also there is not a

fiduciary relationship. I know of no law in Tennessee either, no statutory

or case law, that makes a fiduciary relationship by the employer to the

employee. There is law otherwise. CNS adopted their plan and their new

policy, made it effective January the 1st, 2015. Adcox speaks directly to

this. When language in vacation policy is not -- that this is not a contract,

that’s exactly what it ruled. The other cases cited by Counsel for the

plaintiff, that wasn’t part of the provision. There was -- there was excellent

argument, I didn’t hear it today, about the contracts by adhesions and things

of that nature. But, still, this was not a contract, it was a policy.

Everything I’ve read the Court finds is a policy. Tackett v. M&G Polymers

should not construe ambiguous wording to give lifetime benefits. I agree.

So I think the motion is well taken. I have before me and have read before

me the policy and the procedures; that was one of the things that was in fact

attached to the plaintiff’s original complaint which made it a part of the

hearing -- a part of this -- as Exhibit A. The standing order that came out

December the 11th is Exhibit B. It’s all here in front of me. Exhibit C is

the blue sheet cover block approval. So, my interpretation -- and certainly

there are a lot greater minds than mine, and sometimes, a few times, they

have told me I’m wrong -- but when I make a ruling, I do it after having

read and re-read and done as much as I can within the confines of the --

without going outside the pleadings, and I just do not believe this is a

contract that’s not ever being able to be altered. It was not a contract. It

specifically says it’s not a contract. And they came in, they had a right to

change the policy, and they did that. So, well argued, well prepared, well

presented, but I find that the motion to dismiss should be granted. Costs

will be taxed to the plaintiff.

Plaintiffs appeal to this Court.

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Discussion

We restate and consolidate the issues Plaintiffs raise on appeal as follows:

whether the Trial Court erred in granting CNS’s motion to dismiss.

This case was resolved below on a Rule 12 motion to dismiss. The Trial

Court considered exhibits attached to Plaintiffs’ complaint, which raises the issue of

whether the motion to dismiss should be treated as a motion for summary judgment. This

Court previously has stated:

There are exceptions to the general rule . . . that a court must convert

a Tenn. R. Civ. P 12.02(6) motion to a motion for summary judgment if the

court considers evidence outside the pleadings. In Indiana State District

Counsel of Laborers v. Brukardt, No. M2007-02271-COA-R3-CV, 2009

WL 426237 (Tenn. Ct. App. Feb. 19, 2009), the court adopted the

following language:

Numerous cases ... have allowed consideration of matters

incorporated by reference or integral to the claim, items

subject to judicial notice, matters of public record, orders,

items appearing in the record of the case, and exhibits

attached to the complaint whose authenticity is unquestioned;

these items may be considered by the district judge without

converting the motion into one for summary judgment.

Brukardt, 2009 WL 426237, at *8 (quoting Wright and Miller, FEDERAL

PRACTICE AND PROCEDURE, 1357, p. 376 (3d ed. 2004)).

Haynes v. Bass, No. W2015-01192-COA-R3-CV, 2016 WL 3351365, at *4 (Tenn. Ct.

App. June 9, 2016), Rule 11 appl. perm. appeal denied Oct. 21, 2016.

In the present case, the parties do not dispute the authenticity of the exhibits

presented by Plaintiffs. The issue involves the interpretation of the documents. It is

therefore not necessary for us to treat CNS’s motion to dismiss as a motion for summary

judgment.

With respect to the standard of review on motions to dismiss, our Supreme

Court has instructed:

A motion to dismiss a complaint for failure to state a claim for which

relief may be granted tests the legal sufficiency of the plaintiff’s complaint.

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Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011); cf. Givens

v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 406 (Tenn. 2002).

The motion requires the court to review the complaint alone. Highwoods

Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).

Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the

alleged facts will not entitle the plaintiff to relief, Webb v. Nashville Area

Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011), or when the

complaint is totally lacking in clarity and specificity, Dobbs v. Guenther,

846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Smith v. Lincoln Brass

Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the

relevant and material factual allegations in the complaint but asserts that no

cause of action arises from these facts. Brown v. Tennessee Title Loans,

Inc., 328 S.W.3d 850, 854 (Tenn. 2010); Highwoods Props., Inc. v. City of

Memphis, 297 S.W.3d at 700. Accordingly, in reviewing a trial court’s

dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe

the complaint liberally in favor of the plaintiff by taking all factual

allegations in the complaint as true, Lind v. Beaman Dodge, Inc., 356

S.W.3d at 894; Webb v. Nashville Area Habitat for Humanity, Inc., 346

S.W.3d at 426; Robert Banks, Jr. & June F. Entman, Tennessee Civil

Procedure § 5-6(g), at 5-111 (3d ed. 2009). We review the trial court’s

legal conclusions regarding the adequacy of the complaint de novo without

a presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d at

895; Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d at 700.

SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012).

With respect to vacation benefits, which this case is about, our Supreme

Court has stated:

Our traditional view has been that vacation pay is a component of that

compensation. See Textile Workers Union of Am. v. Brookside Mills, 203

Tenn. 71, 309 S.W.2d 371, 373 (1957)) (“[V]acation pay is in effect

additional wages or compensation....”); Gaines v. Response Graphics, Inc.,

No. 01-A-01-9204-CV-00181, 1992 WL 319441, at *1, 1992 Tenn. App.

LEXIS 895, at *3-4 (Tenn. Ct. App. Nov.6, 1992) (“A paid vacation is a

form of compensation.... Absent some agreement to the contrary, vacation

pay is just like any other compensation that has accrued up to the time of

separation.”); Weesner v. Elec. Power Bd. of Chattanooga, 48 Tenn. App.

178, 344 S.W.2d 766, 768 (1961) (“Retirement rights are analogous to

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provisions fixing the rights [of] employees for paid vacations.... Both are

inducements of the employment, both provide for the employees’ well-

being and peace of mind, which enures to the benefit of the employers.”);

Black’s Law Dictionary 1610 (8th ed. 2004) (“Wages include every form of

remuneration payable for a given period to an individual for personal

services, including salaries, commissions, vacation pay, bonuses....”).

Amos v. Metropolitan Gov’t Of Nashville and Davidson County, 259 S.W.3d 705, 712

(Tenn. 2008).

Plaintiffs, in arguing that the Trial Court erred in granting CNS’s motion to

dismiss, raise two primary arguments on appeal: (1) that the Vacation plan, even if it did

not create a general employment contract, created vested vacation rights; and (2) that

CNS breached either a fiduciary duty to Plaintiffs, or a duty of good faith and fair

dealing.

We first address whether the Vacation plan created contractual obligations

on the part of CNS. This Court has stated:

Even in the absence of a definite durational term, an employment

contract still may exist with regard to other terms of employment. Williams

v. Maremont Corp., 776 S.W.2d 78, 80 (Tenn. App. 1988); accord Hooks v.

Gibson, 842 S.W.2d 625, 628 (Tenn. App. 1992). In this regard, this Court

has recognized that an employee handbook can become a part of an

employment contract. Smith v. Morris, 778 S.W.2d 857, 858 (Tenn. App.

1988) (citing Hamby v. Genesco, Inc., 627 S.W.2d 373 (Tenn. App. 1981));

accord Davis v. Connecticut Gen. Life Ins. Co., 743 F. Supp. 1273, 1278

(M.D. Tenn. 1990). In order to constitute a contract, however, the

handbook must contain specific language showing the employer’s intent to

be bound by the handbook’s provisions. Smith v. Morris, 778 S.W.2d at

858. Unless an employee handbook contains such guarantees or binding

commitments, the handbook will not constitute an employment contract.

Whittaker v. Care–More, Inc., 621 S.W.2d 395, 397 (Tenn. App. 1981). As

stated by one court, in order for an employee handbook to be considered

part of an employment contract, “the language used must be phrased in

binding terms, interpreted in the context of the entire handbook, and read in

conjunction with any other relevant material, such as an employment

application.” Claiborne v. Frito-Lay, Inc., 718 F.Supp. 1319, 1321 (E.D.

Tenn. 1989).

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Rose v. Tipton County Pub. Works Dep’t, 953 S.W.2d 690, 692 (Tenn. Ct. App. 1997)

(footnote omitted).

In our judgment, the Trial Court correctly held that the Vacation Plan by

itself is not an enforceable contract. The Vacation Plan states plainly “[n]o provision of

this procedure shall be construed as an employment agreement.” No other language in

the Vacation Plan is such as to override this explicit and unequivocal declaration. CNS

had the right to amend its vacation benefits policy prospectively at any time. We find no

merit in any arguments raised by Plaintiffs with regard to alleged breach of fiduciary duty

or breach of good faith and fair dealing.

However, this does not end our analysis. Regardless of whether or not the

Vacation Plan by itself was an enforceable contract, Plaintiffs under the factual

allegations of the complaint had a right to the vacation benefits already earned under the

old policy. Consistent with our Supreme Court’s holding in Amos v. Metropolitan Gov’t

Of Nashville and Davidson County, these vacation benefits were part of Plaintiffs’

compensation, and they can no more be deprived of already-earned vacation benefits than

they can be deprived of their already-earned salary. CNS acknowledges that Plaintiffs

must receive the vacation benefits they had earned. CNS contends, however, that

Plaintiffs have been deprived of nothing because any vacation benefits they had earned

had not vested. As alleged, CNS takes the position that it could, even as late in the year

as December 11, 2014, or apparently even later in December 2014, simply make the

vacation time policy change as it did and that change results in the covered employees

who had worked all of 2014 under the old policy receiving no vacation days for the year

of 2014. Plaintiffs, in their complaint, allege that they did, in fact, lose earned vacation

benefits for the year 2014 because they had worked under the prior policy all of 2014

until the change was announced on December 11, 2014 to be effective January 1, 2015.

CNS argues that to hold other than as the Trial Court did would be

tantamount to saying an employer never can change vacation benefits policy with its

employees. Our holding today leads to no such conclusion. An employer such as CNS

can, of course, change its vacation policy just as it can change the other aspects of its

compensation policy such as salary. What it cannot do under our holding, is to

retroactively lower the compensation to its employees’ detriment. CNS’s argument is

that it had the right to eliminate or reduce a full year’s worth of vacation days worked for

and earned as compensation by its employees just as long as it did so before the magic

day of December 31, 2014. That is akin to telling its monthly salaried employees on

December 30 that they will be paid half of their salary for the month of December

because the employer retroactively has changed its salary policy.

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As alleged in the complaint, there was a contract of employment between

CNS and its employees. The employees would perform certain work tasks as assigned to

them by CNS, and CNS would compensate its employees for their work. As alleged, that

compensation included vacation days. An employer generally does not give vacation

days to its employees just out of the goodness of its heart, but does so, as held by our

Supreme Court, as part of the employee’s total compensation package. Likewise,

employees generally do not perform work tasks for their employer just out of the

goodness of their hearts but do so to earn their total compensation. Plaintiffs’ complaint

alleges that after working almost the entire year of 2014 with part of their compensation

being that come the first of 2015 they would receive their vacation days earned by

working all of 2014, CNS instead unilaterally and retroactively changed their

compensation package.

On December 11, 2014, CNS amended its vacation policy, as it had the

right to do going forward. The remaining question at this motion to dismiss stage is what

happened to the vacation days that Plaintiffs had earned in 2014 as part of their

compensation leading up until the effective date of the policy change, vacation time that

they worked for almost all of 2014 and reasonably expected to receive as part of their

total compensation. As alleged, this already earned vacation time was not merely an

expectation but instead was part of their total compensation. Whatever changes were

instituted going forward, Plaintiffs have alleged facts sufficient to withstand a Rule 12

motion to dismiss that they were entitled to vacation days which they had worked for and

earned in 2014 prior to the policy change.

At this motion to dismiss stage, we are neither in a position to nor are called

on to make a final determination as to whether Plaintiffs received all the vacation time

they had worked for as part of their total compensation before the change in policy took

effect. All we hold in this Opinion is that Plaintiffs’ complaint, construed liberally as we

must, is more than sufficient to withstand a Rule 12 motion to dismiss. Therefore, we

hold that the Trial Court erred in granting CNS’s motion to dismiss for failure to state a

claim upon which relief could be granted. We reverse the judgment of the Trial Court,

and remand for further proceedings consistent with this Opinion.

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Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to

the Trial Court for collection of the costs below and for this case to proceed. The costs

on appeal are assessed against the Appellee, Consolidated Nuclear Security, LLC.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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