Monica Whitmore v. Shelby County Government ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
July 20, 2011 Session
MONICA WHITMORE v. SHELBY COUNTY GOVERNMENT
Direct Appeal from the Circuit Court for Shelby County
No. CT-003608-09 Karen R. Williams, Judge
No. W2010-01890-COA-R3-CV - Filed August 15, 2011
The trial court granted the defendant, Shelby County Government, judgment on the pleadings
as to multiple causes of action brought by a former county employee. The trial court found,
inter alia, the one-year statute of limitations of the Tennessee Governmental Tort Liability
Act (“GTLA”) barred the plaintiff’s claim. Applying well-settled law, the court concluded
the general saving statute does not apply to a claim non-suited and re-filed against a
governmental entity under the GTLA. Although the trial court failed to address whether a
different conclusion might apply to causes of action arising under the Tennessee Human
Rights Act (“THRA”), we hold the saving statute does not “save” a claim non-suited and re-
filed against a State entity under the THRA. The trial court therefore properly concluded the
plaintiff’s suit was time-barred. Because the trial court reviewed matters outside of the
pleadings when deciding the defendant’s motion, we grant summary judgment in favor of the
defendant.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
Modified and Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.
Maureen T. Holland, Memphis, Tennessee, Tennessee, for the appellant, Monica Whitmore.
Dedrick Brittenum, Assistant County Attorney and Pablo Adrian Varela, Assistant County
Attorney, Memphis, Tennessee, for the appellee, Shelby County Government.
OPINION
I. Background and Procedural History
The plaintiff/appellant, Monica Whitmore (“Plaintiff”), filed her first complaint
against the defendant/appellee, Shelby County Government (the “County”), in March 2004.
Plaintiff’s complaint alleged several causes of action arising during her employment with the
County from 2002-2003, including violation of workers’ compensation laws, violation of the
THRA, violation of her medical privacy rights, and retaliation. For reasons which are in
dispute, the trial court proceeded to trial on Plaintiff’s workers’ compensation action only
and on January 9, 2009, entered judgment in favor of Plaintiff. On April 15, 2009, Plaintiff
filed a notice with the court voluntarily dismissing “any and all claims” alleged in her
original complaint “except for her claim for workers’ compensation benefits.” The trial court
entered an order that same day approving dismissal without prejudice of “all of Plaintiff’s
claims alleged in her original Complaint . . . other than her claims for workers’ compensation
benefits.” On June 30, 2009, Plaintiff re-filed causes of action for violation of her medical
privacy rights, violation of the THRA, and retaliation. Litigation ensued.
In October 2009, the County moved for judgment on the pleadings. According to the
County, Plaintiff’s attorney had previously abandoned the causes of action for violation of
the THRA, violation of Plaintiff’s medical privacy rights, and retaliation at a 2007 motion
hearing. The County further submitted that, even if the court treated the 2007 abandonment
as a voluntarily dismissal, Plaintiff failed to re-file her claim within one year of dismissal as
Tennessee Code Annotated section 28-1-105(a) requires. The trial court granted the
County’s motion for judgment on the pleadings, concluding in part that “[s]ince the present
claims are governed by the Tennessee Governmental Tort Liability Act the savings statute
is not applicable and the re-filed claims in this cause were filed beyond the one-year statute
of limitations.”1 Plaintiff timely appealed.
II. Issue Presented
The dispositive issue on appeal is whether the causes of action set forth in Plaintiff’s
1
The County did not present this precise issue in either its motion for judgment on the pleadings or
its supporting memorandum. Plaintiff, however, does not argue that the County failed to present the issue
before the trial court, that the trial court improperly reached the issue, or that this Court should not consider
the issue on appeal. Instead, Plaintiff contends the trial court erred when it concluded the GTLA governed
her claim and further argues the saving statute applies to claims re-filed against a State entity under the
THRA.
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2009 complaint are time-barred. All other issues are pretermitted.2
III. Standard of Review
The trial court granted judgment in favor of the County after reviewing its motion, the
arguments of counsel, the case jackets from CT-003608-09 and CT-001807-04, the
transcripts filed in both cases, and the ruling letters the court issued in the 2004 case. As the
parties correctly state in their appellate briefs, a trial court’s consideration of matters outside
of the pleadings converts a Rule 12.03 motion for judgment on the pleadings to a Rule 56
motion for summary judgment. Patton v. Estate of Upchurch, 242 S.W.3d 781, 786 (Tenn.
Ct. App. 2007); Souder v. Health Partners, Inc., 997 S.W.2d 140, 144 (Tenn. Ct. App. 1998)
(citation omitted). Matters outside of the pleadings include but are not limited to “affidavits,
judgments and transcripts from a prior cause of action, and correspondence between the
parties.” Patton, 242 S.W.3d at 786. Because the trial court considered matters outside of
the pleadings in this case, we must apply the standard of review applicable to summary
judgment motions.
Rule 56 of the Tennessee Rules of Civil Procedure provides that a moving party is
entitled to summary judgment if the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits . . . show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. The grant of summary judgment is appropriate only if “the evidence
and the inferences reasonably drawn from the evidence permit reasonable persons to reach
only one conclusion—that the moving party is entitled to a judgment as a matter of law.”
CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010) (citing Kinsler v. Berkline,
LLC, 320 S.W.3d 796, 801 (Tenn. 2010); Giggers v. Memphis Hous. Auth., 277 S.W.3d 359,
364 (Tenn. 2009)). Because the grant or denial of a motion for summary judgment is a
2
We need not address additional issues presented in the parties’ briefs. We nonetheless note “[t]he
law is clear that statements of fact made in or attached to pleadings, briefs, and oral arguments are not
evidence and may not be considered by an appellate court unless they are properly made part of the record.”
Threadgill v. Bd. of Prof'l Responsibility of Supreme Court, 299 S.W.3d 792, 812 (Tenn. 2009) (citations
omitted). Likewise, “[s]imply attaching a document to an appellate filing will not serve to place it in the
record on appeal, especially when it was not part of the record of the trial court proceedings.” In re Bernard
T., 319 S.W.3d 586, 591 n.3 (Tenn. 2010) (citing UT Med. Group, Inc. v. Vogt, 235 S.W.3d 110, 122 (Tenn.
2007); Vintage Health Res., Inc. v. Guiangan, 309 S.W.3d 448, 460 n. 13 (Tenn. Ct. App. 2009)). Although
appellate courts may take judicial notice of evidentiary matters in “proper circumstances,” id. n.3 (citing
State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009)), “we customarily decline to take judicial notice of
materials that are not properly included in the record on appeal,” id. n.3. (citing Willis v. Tenn. Dep't of Corr.,
113 S.W.3d 706, 713 n.6 (Tenn. 2003)). Evidentiary materials found only in the appendices of the parties’
briefs are not before this Court and will not be considered.
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question of law, our standard of review is de novo with no presumption of correctness.
Kinsler, 320 S.W.3d at 799 (citing Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn.
2004). “On appeal, we must freshly determine whether the requirements of Tenn. R. Civ.
P. 56 have been met.” Hunter v. Brown, 955 S.W.2d 49, 50–51 (Tenn. 1997) (citing
Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44–45 (Tenn. Ct. App. 1993)). “In doing
so, we must consider the pleadings and the evidentiary materials in the light most favorable
to the movant's opponent, and we must draw all reasonable inferences in the opponent’s
favor.” Brown, 955 S.W.2d at 51 (citing Byrd v. Hall, 847 S.W.2d 208, 210–11 (Tenn.
1993).
IV. Analysis
The doctrine of sovereign immunity plays an important role when determining the
application of a general saving statute to claims non-suited and re-filed against a State entity.
The doctrine of sovereign immunity provides that the State of Tennessee, as a sovereign,
cannot be sued unless it consents to be sued. Mullins v. State, 320 S.W.3d 273, 278 (Tenn.
2010) (citing Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000)); accord Sanders v. Traver,
109 S.W.3d 282, 284 (Tenn. 2003) (citing Cruse v. City of Columbia, 922 S.W.2d 492, 495
(Tenn. 1996)). “The rule of sovereignty is both constitutional and statutory.” Mullins, 320
S.W.3d at 278; accord Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 916 (Tenn. 2007)
(citing Jones v. L & N R.R. Co., 617 S.W.2d 164,170 (Tenn. Ct. App. 1981). Article 1,
section 17 of the Tennessee Constitution provides “[s]uits may be brought against the State
in such manner and in such courts as the Legislature may by law direct.” Tenn. Const. art.
I, § 17; accord Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19 (Tenn. 2007) (quoting
Tenn. Const. art. I, § 17) (citing N. British & Mercantile Co. v. Craig, 62 S.W. 155, 157
(Tenn. 1901)). Tennessee Code Annotated section 20-13-102(a) similarly provides:
[n]o court in the state shall have any power, jurisdiction or authority to
entertain any suit against the state, or against any officer of the state acting by
authority of the state, with a view to reach the state, its treasury, funds or
property, and all such suits shall be dismissed as to the state . . . .
Tenn. Code Ann. § 20-13-102(a) (2009). Our supreme court has held “the State” includes
“‘the departments, commissions, boards, institutions and municipalities of the State.’”
Davidson, 227 S.W.3d at 19 (quoting Metro. Gov't of Nashville & Davidson Cnty. v. Allen,
415 S.W.2d 632, 635 (Tenn. 1967)).
The doctrine of sovereign immunity generally prohibits suits against the State unless
the legislature has abrogated or waived immunity. “[A]ny abrogation of the immunity
doctrine by the legislature must be set out in ‘plain, clear, and unmistakable terms.’” Wells,
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231 S.W.3d at 917 (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 731 (Tenn. 2000);
accord Scates v. Bd. of Comm'rs of Union City, 265 S.W.2d 563, 565 (Tenn. 1954). Courts
“will not find a waiver of the State’s sovereign immunity ‘unless there is a statute clearly and
unmistakably disclosing an intent upon the part of the Legislature to permit such litigation.’”
Davidson, 227 S.W.3d at 19 (quoting Scates, 265 S.W.2d at 565). And Courts will not find
an implicit waiver of sovereign immunity; any waiver must be explicit. Colonial Pipeline
Co. v. Morgan, 263 S.W.3d 827, 853 (Tenn. 2008) (citing Auto. Sales Co. v. Johnson, 122
S.W.2d 453, 456 (Tenn. 1938)).
Tennessee courts have on several occasions held that a general saving statute does not
apply to claims non-suited and re-filed against the State unless the legislature has clearly and
unmistakably demonstrated an intent for the saving statute to apply. E.g., Davidson v. Lewis
Brothers Bakery, 227 S.W.3d 17, 20 (Tenn. 2007) (holding the general saving statute of
Tennessee Code Annotated section 28-1-105(a) did not apply to a workers’ compensation
claim non-suited and re-filed against the Second Injury Fund); Farmer v. Tenn. Dept. of
Safety, 228 S.W.3d 96, 101 (Tenn. Ct. App. 2007) (holding neither the general saving statute
of Tennessee Code Annotated section 28-1-115 nor the general saving statute of Tennessee
Code Annotated section 28-1-105(a) applied to a claim re-filed against a governmental entity
under the Tennessee Public Protection Act); Webster v. Tenn. Bd. of Regents, 902 S.W.2d
412, 414 (Tenn. Ct. App. 1995) (holding neither the general saving statute of Tennessee
Code Annotated section 28-1-115 nor the general saving statute of Tennessee Code
Annotated section 28-1-105(a) applied to a claim re-filed against the State under the THRA).
Claims non-suited and re-filed under the GTLA are no exception.
The GTLA, which the trial court determined governs the present dispute, reaffirms
the doctrine of sovereign immunity. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn.
2001) (citing Tenn. Code Ann. § 29-20-201(a); Hawks v. City of Westmoreland, 960 S.W.2d
10, 14 (Tenn. 1997)). The GTLA retains governmental immunity from suits arising out of
the exercise and discharge of a State entity’s functions, whether governmental or proprietary,
except as otherwise provided in the Act. Tenn. Code Ann. § 29-20-201(a) (Supp. 2010).
The Act expressly waives immunity only “in limited and enumerated instances for certain
injuries,” Ezell v. Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995) (footnote omitted), and this
waiver is “narrowly confined in its scope,” Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001).
Consistent with prevailing law, the GTLA expressly provides that claims for damages must
be brought in “strict compliance” with its terms. Tenn. Code Ann. § 29-20-201(c) (Supp.
2010); see also Doyle, 49 S.W.3d at 858 (citing Ezell, 902 S.W.2d at 399).
“One of the terms of the GTLA which demands strict compliance is the statute of
limitations.” Lynn, 63 S.W.3d at 337. Tennessee Code Annotated section 29-20-305(b)
provides that an action under the GTLA “must be commenced within twelve (12) months
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after the cause of action arises.” Tenn. Code Ann. § 29-20-305(b) (2000). “Because the
GTLA is strictly construed, courts have refused to apply statutes and rules to cases arising
under the GTLA if application of the particular statute or rule would effectively expand the
statute of limitations period set forth in T.C.A. § 29-20-305(b).” Sutton v. Barnes, 78 S.W.3d
908, 913 (Tenn. Ct. App. 2002). Tennessee courts, including our supreme court, have
accordingly held the general saving statutes of Tennessee Code Annotated sections 28-1-
105(a) and 28-1-115 do not apply to causes of action arising under the GTLA.3 E.g., Lynn
v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (holding the general saving statute of
Tennessee Code Annotated section 28-1-115 did not apply to claims re-filed against a
governmental entity under the GTLA); Williams v. Memphis Light, Gas and Water Div., 773
S.W.2d 522, 523 (Tenn. Ct. App. 1988) (holding general saving statute of Tennessee Code
Annotated section 28-1-105(a) did not apply to claims re-filed against a governmental entity
under the GTLA).
Here, the trial court granted judgment in favor of the County in part due to the
inapplicability of the general saving statute under the GTLA. While the trial court’s
evaluation of the law on this issue is correct, the court failed to take a necessary second step
with respect to at least one claim (an arguably a second). Plaintiff’s action for violation of
medical privacy, to the extent the complaint states a cause of action at all, appears to arise
in tort and would therefore be subject to the GTLA. The same is true to the extent Plaintiff
3
Tennessee Code Annotated section 28-1-105(a) provides:
(a) If the action is commenced within the time limited by a rule or statute of limitation, but
the judgment or decree is rendered against the plaintiff upon any ground not concluding the
plaintiff's right of action, or where the judgment or decree is rendered in favor of the
plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff's representatives
and privies, as the case may be, may, from time to time, commence a new action within one
(1) year after the reversal or arrest. Actions originally commenced in general sessions court
and subsequently recommenced pursuant to this section in circuit or chancery court shall not
be subject to the monetary jurisdictional limit originally imposed in the general sessions
court.
Tenn. Code Ann. § 28-1-105(a) (2000). Tennessee Code Annotated section 28-1-115 similarly provides:
Notwithstanding any applicable statute of limitation to the contrary, any party filing an
action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one
(1) year from the date of such dismissal to timely file such action in an appropriate state
court
Tenn. Code Ann. § 28-1-115 (2000).
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alleged common law retaliatory discharge in her 2004 and 2009 complaints.4 See Weber v.
Moses, 938 S.W.2d 387, 393 (Tenn. 1996) (recognizing that common law retaliatory
discharge sounds in tort). Plaintiff’s cause of action for discrimination in violation of the
THRA, however, arose pursuant to the express provision of that statute. Plaintiff’s cause of
action for retaliation also arguably arises under the THRA. We must therefore consider
whether separate provisions of the THRA demonstrate an intent to waive the State’s
sovereign immunity as to those causes of action. See Eason v. Memphis Light, Gas & Water
Div., 866 S.W.2d 952 (Tenn. Ct. App. 1993) (analyzing causes of action under the THRA
separately from the GTLA). We find the trial court erred in concluding Plaintiff’s claim was
time-barred, because it did not rule out the possibility that the saving statute applied to any
causes of action re-filed against the County under the THRA. The court may have
nonetheless reached a correct result.
The principal issue on appeal is whether, similar to claims re-filed under the GTLA,
the general saving statute does not apply to claims non-suited and re-filed against a State
entity under the THRA. The Tennessee Supreme Court’s decision in Davidson v. Lewis
Brothers Bakery, 227 S.W.3d 17 (Tenn. 2007), is instructive on this point though it arises in
a different context. Davidson concerned a workers’ compensation claim that an employee
filed in August 2001 against his employer and the Second Injury Fund (the “Fund”), an
administrative unit of a Tennessee executive branch department. Davidson, 227 S.W.3d at
18. After a period of discovery, the employee non-suited his action. Id. In December 2004,
the employee re-filed his claim as to both defendants. Id. In its answer, the Fund argued the
one-year limitations period of Tennessee Code Annotated section 50-6-203(b)(1) (1999)
barred the employee’s suit. Id. Additionally, the Fund argued the general saving statute did
not permit the employee to re-file his claim because the statute did not waive the State’s
sovereign immunity. Id. at 18-19. The trial court disagreed with the Fund, and the employee
recovered against both defendants. Id. at 19.
The Davidson court granted review to consider whether an employee could non-suit
a timely filed claim for workers’ compensation benefits against the Fund and later re-file his
claim under the general saving statute of Tennessee Code Annotated section 28-1-105(a).
Id. at 18. Our supreme court acknowledged a workers’ compensation claimant has a
statutory right to non-suit a timely filed claim at any time before a trial begins and later re-file
pursuant to the general saving statute. Id. at 20. It explained further, however, that the
principles of sovereign immunity and waiver remained operable “[s]hould the claimant
voluntarily non-suit a claim against a unit of the State’s government . . . .” Id. (emphasis
added). Because the general saving statute at issue did not contain a clear and unmistakable
4
We find it unnecessary to consider whether the allegations of retaliation stated a claim under the
THRA or the GTLA, if either. The cause of action for retaliation is time-barred under both scenarios.
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waiver of sovereign immunity necessary to support a suit against the State, the Davidson
court concluded the statute would not “save” a claim against the Fund where the applicable
limitations period had otherwise run. Id. The Davidson court accordingly modified the
decision of the trial court to dismiss the Fund from the case. Id. at 21.
The Middle Section of this Court applied similar reasoning in Webster v. Tennessee
Board of Regents, 902 S.W.2d 412 (Tenn. Ct. App. 1995), a case arising under the THRA.
In September 1992, the plaintiff in Webster filed his first complaint in state chancery court
alleging Tennessee State University discriminated against him in his employment. Webster,
902 S.W.2d at 413. One month later, the plaintiff non-suited his chancery court claim and
filed a second complaint in federal district court. Id. The federal court complaint alleged
employment discrimination in violation of federal law and the THRA. Id. After the federal
court dismissed and/or granted summary judgment as to unstated portions of the plaintiff’s
claim, he filed a third complaint in the chancery court in October 1993 again alleging
employment discrimination in violation of the THRA. Id. The trial court dismissed the
plaintiff’s claim as time-barred, and the plaintiff appealed. Id. at 414.
The Middle Section expressly considered on appeal “[w]hether the savings statute
applies to the State of Tennessee when it acts as an employer and is being sued pursuant to
the Tennessee Human Rights Act.” Id. After considering the relevant principles regarding
the application and waiver of sovereign immunity, the court found neither the saving statute
of Tennessee Code Annotated section 28-1-115 nor the saving statute of Tennessee Code
Annotated section 28-1-105(a) applied. Id at 414-15. The Webster court stressed there was
“no mention” of the State in either saving statute. Id. at 414. Moreover, there was no other
statute that specifically authorized suits to be “saved” against the State. Id. at 415. Because
the legislature had not waived the State’s sovereign immunity, the Middle Section held the
saving statute did not apply to the plaintiff’s claim and affirmed the decision of the trial
court. Id. We see no reason to depart from the holding of Webster, especially in light of
more recent Tennessee Supreme Court decisions requiring a clear, unmistakable, and explicit
legislative waiver of sovereign immunity.
We are wholly unpersuaded by Plaintiff’s contention that language from this Court’s
prior decision of Eason v. Memphis Light, Gas & Water Division, 866 S.W.2d 952 (Tenn.
Ct. App. 1993), supports application of the general saving statute to her claim. The Eason
court considered whether the general saving statute applied to causes of action arising under
the THRA before the legislature specifically adopted a one-year statute of limitations in such
cases. Eason, 688 S.W.2d at 954. The defendant in Eason, Memphis Light, Gas & Water
Division of the City of Memphis (“MLGW”), cited prior decisions arising under the GTLA
as supporting its argument that the saving statute did not apply to suits against State entities
under the THRA. Id. The Eason court, however, found the reasoning of those decisions
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inapplicable because the GTLA possessed a statute-specific, one-year limitations period,
which the courts were bound to construe strictly. See id. The THRA, on the other hand, did
not contain a statute-specific limitations period. Id. Rather, courts applied the general one-
year statute of limitation set forth in Tennessee Code Annotated section 28-3-104 to actions
arising under the THRA prior to its amendment. Id. (citations omitted).
The Eason court found the absence of a strictly construed limitations period
controlling when considered in view of the legislative intent of the THRA. See id. at 955-56.
Although the general saving statute did not expressly demonstrate an intent to waive the
State’s sovereign immunity, this Court found “[t]he clear language from the Tennessee
Human Rights Act evince[d] an unmistakable legislative intent to remove whatever immunity
a governmental entity may have had under the Governmental Tort Liability Act.” Id. at 955
(citation omitted). We reasoned the “[i]mmunity of the sovereign was removed as though
the sovereign was a private citizen” under the THRA because “the clear legislative intent was
to include the governmental entities and place them in the same standing as private
employer.” Id. We accordingly concluded the general saving statute applied to MLGW
“[i]n the absence of a limitation period in the act itself.” Id. at 955-56 (emphasis added).
Plaintiff argues Eason requires courts to place State entities on the same footing as
private employers with respect to application of the saving statutes in THRA cases.5 Because
Tennessee courts have applied the general saving statute of Tennessee Code Annotated
section 28-1-105(a) to causes of actions filed against private employers under the THRA,
Plaintiff contends the saving statute must also apply to suits brought against State entities
under the THRA. We disagree. The Eason court effectively concluded the adoption of the
THRA gave rise to an implied waiver of sovereign immunity with respect to the saving
statute where the legislature had not indicated a contrary intent through the enactment of a
statute-specific limitations period. The same reasoning does not apply subsequent to the
enactment of the THRA’s one-year limitations period, which courts must construe strictly.
5
Plaintiff argued for the first time at oral arguments that treating government employers and private
employers differently when applying (or not applying) the saving statute would violate the equal protection
clauses of the state and federal constitutions. “It has long been the general rule that questions not raised in
the trial court will not be entertained on appeal and this rule applies to an attempt to make a constitutional
attack upon the validity of a statute for the first time on appeal unless the statute involved is so obviously
unconstitutional on its face as to obviate the necessity for any discussion.” Lawrence v. Stanford, 655
S.W.2d 927, 929 (Tenn. 1983). Also, an issue the appellant does not raise or adequately argue in her
appellate brief is waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a), (b); Bean v. Bean, 40 S.W.3d
52, 55–56 (Tenn. Ct. App. 2000) (citations omitted); Childress v. Union Realty Co., 97 S.W.3d 573, 578
(Tenn. Ct. App. 2002) (citations omitted). We conclude Plaintiff’s equal protection argument is not properly
before this Court.
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The better interpretation of Eason as recognized in the Middle Section’s decision of
Parnell v. Apcom, Inc., No. M2003-00178-COA-R3-CV, 2004 WL 2964723 (Tenn. Ct. App.
Dec. 21, 2004), is that “the legislature intended to place governmental entities on the same
footing as private employers in the context that a THRA cause of action may be brought
against the governmental entity as it can against a private employer.”6 Parnell, 2004 WL
2964723 at *4. The THRA “does not require that we place private employers on the same
footing as governmental entities to the extent the savings statute is or is not applicable.” Id.
Rather, differentiating between governmental entities and private employers in this context
is appropriate because the application of a general saving statute to private employers does
not implicate the doctrine of sovereign immunity.
Having reviewed the arguments of the parties and the relevant case law, we conclude
the general saving statute of Tennessee Code Annotated section 28-1-105 does not “save”
a claim non-suited and re-filed against a State entity under the THRA. See Webster, 902
S.W.2d at 415. The legislature granted Plaintiff a right to sue by statute in the THRA. The
THRA, as amended, specifically provides a limited time within which she must exercise that
right. Plaintiff did not file her second complaint within the applicable limitations period and,
as a result, lost the right to bring her action. Absent an express, clear, and unmistakable
intent to the contrary, the saving statute cannot be used to extend the period within which to
file suit against the County under the THRA. See Sutton, 78 S.W.3d at 913 (quoting
Williams, 773 S.W.2d at 523) (applying similar reasoning under the GTLA). Although the
legislature could have made the general saving statute of Tennessee Code Annotated section
28-1-105 applicable to THRA claims re-filed against State entities, it has not chosen to do
so. We accordingly conclude Plaintiff’s causes of action under the THRA are time-barred.
In sum, we hold the trial court reached the correct result when it granted judgment in
favor of the County. Reviewing the evidence in the light most favorable to Plaintiff and
drawing all reasonable inferences in favor of Plaintiff, we find for the purposes of this
opinion that Plaintiff voluntarily non-suited her causes of action under the GTLA and the
THRA in April 2009. After Plaintiff took her voluntary non-suit, she re-filed her claim in
June 2009. This re-filing occurred well after the expiration of the one-year limitation periods
of the THRA and the GTLA. Thus, the causes of action set forth in her second complaint
were time-barred regardless of whether she brought them under the GTLA or the THRA.
Because no genuine issue of material fact remains, we conclude the County is entitled to
6
The Middle Section in Parnell also noted its disagreement with the central holding of Eason,
remaining “of the firm belief that the savings statute is not applicable to actions against governmental entities
unless such is expressly stated in the statute.” Parnell v. Apcom, Inc., No. M2003-00178-COA-R3-CV, 2004
WL 2964723, at *4 n.10. (Tenn. Ct. App. Dec. 21, 2004). We need not address here whether more recent
decisions of our supreme court have called the reasoning of Eason into question.
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summary judgment. The decision of the trial court is affirmed for the reasons stated herein.
Plaintiff is not entitled to an award of attorney’s fees and costs on appeal.
V. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court as modified and
grant summary judgment in favor of the County. The costs of the appeal are taxed to the
appellant, Monica Whitmore, and her surety for which execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
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