Monica Whitmore v. Shelby County Government

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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