William Terry Wyatt v. Billie Carey ( 1999 )

IN THE COURT OF APPEALS
AT KNOXVILLE FILED
August 25, 1999
Cecil Crowson, Jr.
Appellate Court
Clerk
) CUMBERLAND COUNTY
WILLIAM TERRY WYATT, ) 03A01-9809-CV-00307
)
Plaintiff-Appellant, )
)
v. )
) HON. JOHN A. TURNBULL
BILLIE CAREY AND JIM CHEWNING )
)
Defendants-Appellees. )
) AFFIRMED AND REMANDED
)
WILLIAM TERRY WYATT, PRO SE
PAUL G. SUMMERS, ATTORNEY GENERAL AND REPORTER, MICHAEL MOORE,
SOLICITOR GENERAL, AND PAMELA S. LORCH, ASSISTANT ATTORNEY
GENERAL OF NASHVILLE FOR APPELLEE JIM CHEWNING
O P I N I O N
Goddard, P.J.
This appeal by pro se Plaintiff/Appellant, William
Terry Wyatt, concerns his suit for civil conspiracy, negligent
infliction of emotional distress, and outrageous conduct, as well
as for violations of his constitutional rights. He sued
Defendants/Appellees, Billie Carey1, his ex-wife, and Jim
1
Service upon Ms. Carey could not be obtained. She was not a party
below or on appeal.
Chewning, an investigation officer with the Tennessee Department
of Correction.
Mr. Wyatt, who is serving a sentence for attempted
second degree murder and kidnapping, brings this civil action
against Ms. Carey and Officer Chewning alleging that Officer
Chewning “conspired” with Ms. Carey to submit a false report of
Mr. Wyatt’s criminal history in his presentence report, which was
prepared by Officer Chewning. Mr. Wyatt contends that the pair
falsified the presentence report to indicate that he had a
significant number of criminal offenses, thereby causing him to
receive a jail sentence instead of probation.
Mr. Wyatt presents two issues, which we restate, for
our consideration:
1. Whether a genuine issue of material
fact exists regarding the one-year
statute of limitations applicable to
civil conspiracy, emotional distress,
and outrageous conduct.
2. Whether the Trial Court abused its
discretion by dismissing the complaint
without stating its reasons for the
dismissal and without notifying all
parties, specifically Ms. Carey, of its
intent to dismiss and by not giving all
parties an opportunity to respond to the
Court’s actions.
2
Officer Chewning filed the presentence report on May
19, 1995. On December 2, 1997, Mr. Wyatt filed an action for
civil conspiracy, negligent infliction of emotional distress, and
outrageous conduct, as well as for violations of his
constitutional rights.
The Trial Court concluded
that the motion for summary judgment
filed by the defendant Chewning is
meritorious in that the complaint shows
upon its face that the applicable one
year statute of limitations has expired prior
to the filing of this complaint. Since the
same factors would apply to the defendant
Carey, the Court also is required to dismiss
the claim against Billie Carey.
On appeal the State argues that Mr. Wyatt’s cause of
action is time barred. Officer Chewning filed Mr. Wyatt’s
presentence report on May 19, 1995, but Mr. Wyatt did not file a
complaint until December 2, 1997.2 The State asserts that over
two years had passed from the date of the alleged tortious
conduct and the filing of the complaint. It maintains that
Tennessee Code Annotated § 28-3-104 provides for a one-year
statute of limitations:
Personal tort actions. -- (a) The
following actions shall be commenced within
2
The State uses the date of November 23, 1997 in its brief. However,
the complaint was not filed until December 2, 1997, which is the date used by
this Court.
3
one (1) year after the cause of action
accrued:
(1) Actions for libel, for injuries to the
person, false imprisonment, malicious
prosecution, breach of marriage promise;
* * * *
(3) Civil actions for compensatory or
punitive damages, or both, brought under
the federal civil rights statutes[.]
The State acknowledges that the Trial Court erroneously
labeled Officer Chewning’s motion to dismiss as a motion for
summary judgment, but maintains that the Trial Court’s judgment
regarding the statute of limitations issue is correct.
We find that the record clearly shows that Mr. Wyatt
allowed the one-year statute of limitations to expire before
filing his complaint. See Harvey v. Martin, 714 F.2d 650 (6th
Cir. 1983); Wright v. Tennessee, 628 F.2d 949 (6th Cir. 1980);
Braswell v. Carothers, 863 S.W.2d 722 (Tenn. Ct. App. 1993).
Therefore, his cause of action is time barred.
In light of our disposition of the statute of
limitations issue, we need not address the second issue.
4
For the foregoing reasons, the judgment of the Trial
Court is affirmed and the cause remanded for collection of the
judgment and costs below. Costs of appeal are adjudged against
Mr. Wyatt.
___________________________
Houston M. Goddard, P.J.
CONCUR:
__________________________
Herschel P. Franks, J.
__________________________
Charles D. Susano, Jr., J.
5