Bryson v. City of Chattanooga

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 1, 2010 Session

CHARLES H. BRYSON, ET AL. v. THE CITY OF CHATTANOOGA, ET AL.

Appeal from the Chancery Court for Hamilton County

No. 06-0284 Howell N. Peoples, Chancellor

No. E2009-01101-COA-R3-CV - FILED SEPTEMBER 27, 2010

Before November 4, 1986, members of the Chattanooga Police and Fire Departments were

allowed to buy back retirement credit for time served while employed in other departments

within the City of Chattanooga. On November 4, 1986, a city-wide referendum was passed

which established a cut-off date of June 1, 1987, in which to buy back these retirement

credits. Almost nineteen (19) years later, this lawsuit was brought by fifteen (15) police

officers (“Plaintiffs”) against the City of Chattanooga (the “City”) and the Chattanooga Fire

and Police Pension Board (the “Pension Board”). Plaintiffs claimed, among other things, that

the 1986 referendum unconstitutionally deprived them of a property right. Plaintiffs sought

a declaration that they be allowed to buy back retirement credits for time served in other City

departments. The Trial Court concluded that the statutes of limitation had run on all of the

claims, with the exception of some of the plaintiffs’ equal protection claim. The Trial Court

then concluded that Defendants were entitled to summary judgment as a matter of law as to

the one timely claim. Plaintiffs appeal, and we affirm.

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

Chancery Court Affirmed; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which C HARLES D. S USANO,

J R., and J OHN W. M CC LARTY, JJ., joined.

Bryan H. Hoss, C. Leland Davis, and Whitney Durand, Chattanooga, Tennessee, for the

Appellants, Charles H. Bryson, Randall Vincent Dean, James Terry Marlin, Paul W. Lee, Jr.,

Randy W. Dunn, Francene H. Fleming, Anderson G. Hass, Danny B. Hill, Thomas B.

Kennedy, Thomas D. McKinney, Sully Batts, Kimberly K. Miller, Kenneth D. Phillips,

Kimberly Reavley, and Bryan D. Moody.

Christopher A. Crevasse, Neil A. Brunetz, and Robert F. Parsley, Chattanooga, Tennessee,

for the Appellee, Chattanooga Fire and Police Pension Board.

Michael A. McMahan, City Attorney, and Valerie L. Malueg, Assistant City Attorney, for

the Appellee, City of Chattanooga.

OPINION

Background

Plaintiffs are current and former members of the Chattanooga Police

Department. In April of 2006, Plaintiffs filed this declaratory judgment action seeking a

declaration that they are allowed to buy back retirement credit for time spent employed in

other City departments. Plaintiffs sued the City and the Pension Board. According to the

complaint:

Prior to November 4, 1986, the Charter of the City of

Chattanooga allowed Chattanooga Police Department and Fire

Department officers to buy back retirement credit for time

served in other city departments. Section 13.75 of the Charter

of the City of Chattanooga provided the following:

In computing the time served by an applicant for a

pension, if such applicant has been employed in other

city departments of the City of Chattanooga and has been

employed as much as eight (8) years in the department of

fire and police, such applicant shall be given credit for

the time served in other departments; provided, however,

that such member shall pay into the pension fund the

necessary amount to cover the years for which he shall be

given credit, and if he fails to pay such amount into the

fund, he shall be treated as a new employee when he

entered the fire and police department.

This provision allowed police officers to buy back

retirement credit for time spent in other city departments.

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This provision provided certain contractual rights for the

benefit of these officers in their retirement credit for time spent

in other city departments.

On August 19, 1986, the Chattanooga City Council

adopted an adverse Amendment to § 13.75 of the Charter of the

City of Chattanooga. The adverse Amendment was approved at

referendum on November 4, 1986. As amended, Section 13.75

of the Charter of the City of Chattanooga provided the

following:

In computing the time served by an applicant for a

pension, those applicants who were employed as much as

eight (8) years in the police or fire departments on the

date on which this Act is approved may receive credit for

the time served in such other departments of the City of

Chattanooga; provided, however, that any such person

who elects to receive credit for time served in such other

departments of the City, shall pay into the Firemen’s and

Policemen’s Pension Fund before June 1, 1987, such

amounts that would have been contributed by both the

employee and the City into the Firemen’s and

Policemen’s Insurance and Pension Fund for the years

served in such other departments at six percent (6%)

interest, compounded annually from the end of each year

of such uncredited service.

This adverse Amendment created a date, June 1, 1987,

for employees to pay into the Pension fund for the retirement

credit that they elect to take towards their retirement. This

adverse Amendment altered significantly the previous provision.

Following this adverse Amendment, the City of

Chattanooga and The Chattanooga Fire and Police Pension

Board, have permitted several other fire and police officers to

exercise buy back rights after June 1, 1987.

Each of the Plaintiffs reasonably relied on the Charter of

the City of Chattanooga prior to November 4, 1986, to organize

their financial affairs and retirement plans. Each of these

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Plaintiffs have petitioned both the City of Chattanooga and the

Chattanooga Fire and Police Pension Board to allow them to buy

back their retirement credits as permitted prior to the adverse

Amendment. Both the City of Chattanooga and the Chattanooga

Fire and Police Pension Board have refused.

Prior to the ordinance of August 19, 1986, neither the

City of Chattanooga nor the Board gave any indication

whatsoever to the Plaintiffs that they would no longer permit the

Plaintiffs to purchase credit for time served in other city

departments as permitted pursuant to the Charter of the City of

Chattanooga . . . prior to November 4, 1986.

These Plaintiffs are respectfully asking this Court

pursuant to the Tennessee Declaratory Judgment Act to

determine their rights pursuant to the City Charter and the Fire

and Police Pension Board. More specifically . . . , these

Plaintiffs are seeking relief from this Court to declare the

adverse Amendment unconstitutional . . . and allow them to

purchase their retirement credit for time spent in other city

departments prior to becoming police officers in Hamilton

County . . . . (original paragraph numbering omitted; emphasis

in the original)

Plaintiffs claimed the amendment unconstitutionally violated both vested and

unvested contractual rights, amounted to an unconstitutional taking of their property rights

without just compensation, and was an ultra vires act by the City. Plaintiffs further alleged

violations of due process and equal protection of the law.

Defendants answered the complaint and denied any liability to Plaintiffs.

Defendants admitted that the charter was amended, but denied any constitutional violation.

Defendants averred that the Amendment properly was submitted to and approved by the

voters. Defendants further claimed that all Plaintiffs’ alleged causes of action were barred

by laches and the applicable statutes of limitation.

Plaintiffs filed a motion for summary judgment, and an affidavit from each

plaintiff was filed. In these affidavits, which are virtually identical, Plaintiffs state that in

1986, they did not know that the Pension Board was considering revising the provision which

allowed them to purchase credit for time served in other departments. Plaintiffs went on to

state that: (1) they did not know the Pension Board voted on May 8, 1986, to eliminate the

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right to purchase credit for time served in other departments; (2) they did not know that on

August 19, 1986, the Chattanooga City Commission called for a referendum with regard to

whether to change the provision allowing them to purchase credit for time served in other

departments; (3) they did not know the November 4, 1986, referendum on the ballot involved

the elimination of the provision allowing them to purchase credit for time served in other

departments; and (4) they did not know that there was a June 1, 1987, deadline for

purchasing credit for time served in other departments.1 Plaintiffs further asserted that during

the six year period following the June 1, 1987 deadline, a total of twelve police officers were

offered the opportunity to purchase credit for time served in other City departments, and

eleven of the twelve officers did so, and that this amounted to a violation of the equal

protection clause because Plaintiffs were not allowed this same opportunity.

Defendants also filed a motion for summary judgment. Defendants claimed

that the undisputed material facts established that the amended ordinance was validly

approved by the voters and that Plaintiffs had failed to establish that they met the

requirements needed to purchase credit for time served in other departments. Defendants

filed deposition transcripts from numerous witnesses. Among other things, Defendants

asserted that the reason the City established a deadline for allowing policemen and firemen

to buy back retirement benefits was because that provision was negatively affecting the

actuarial soundness of the retirement fund.

Following a hearing on the competing motions for summary judgment, the

Trial Court entered a thorough forty-three page Memorandum Opinion. The Trial Court

ultimately denied Plaintiffs’ motion for summary judgment and granted Defendants’ motion

for summary judgment. In its Memorandum Opinion, the Trial Court reviewed the

procedural and factual history of the case and the events giving rise to this lawsuit.

According to the Trial Court:

Until November 4, 1986, the Chattanooga City Charter

(“the Charter”) provided some members of the Chattanooga Fire

and Police Insurance and Pension Fund (“the Fund”) the

opportunity to receive pension credit for the years they worked

for the City of Chattanooga (“the City”) in positions outside of

the fire and police departments. Chattanooga, Tenn., City

Charter § 13.75 (1980). To be eligible for such credit, pension

applicants had to have worked in the fire or police department

1

Even though Plaintiffs claimed they did not know about the referendum, the entire ballot detailing

the proposed amendment was published in both the Chattanooga Times and the Chattanooga News-Free

Press prior to being voted on and passed by the voters.

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for “as much as eight (8) years,” and had to pay “into the

pension fund the necessary amount to cover” those years for

which the applicant wished to receive police and fire pension

credit. Id. The Chattanooga Fire and Police Pension Board

(“the Board”), the body that administers the Fund, interpreted

the phrase “as much as eight (8) years” to mean that “individuals

had to first work eight years as a firefighter or police officer”

before they were eligible to receive pension credit for years they

worked in other departments. . . .

On August 19, 1986, however, the Chattanooga City

Commission (“the Commission”) approved Ordinance 8688

(“the Ordinance”), which amended § 13.75 of the Charter to the

effect that members of the Pension Fund would no longer be

allowed to purchase fire and police pension credit for past

municipal employment. . . . According to the amendment,

pension applicants who worked “as much as eight (8) years in

the police or fire departments” and wished to receive fire and

police pension credit for time worked in other City departments

had to purchase such credit, at a rate which now included a 6%

interest fee, prior to June 1, 1987. Charter § 13.75 (1986). On

November 4, 1986, the residents of the City voted in a popular

referendum to approve the Ordinance so amending the

Charter. . . .

Despite the amendment’s explicit language setting a June

1, 1987, deadline for purchasing pension credit for years worked

in other departments, the Board’s attorney advised the Board

that it could consider any Fund member’s written request to

purchase pension credit dated before June 1, 1987, as timely. . . .

After June 1, 1987, the Board allowed twelve (12) Fund

members to purchase pension credit for years worked in other

departments on the basis that these members both met the eight

year employment requirement – as interpreted by the Board –

and submitted written requests prior to June 1, 1987, to purchase

the pension credit. . . .

Plaintiffs are members of the Fund who are either

recently retired from employment with the City, or are nearing

retirement age. (Compl. at ¶¶ 19, 20.) Plaintiffs claim they

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“reasonably relied on” the pre-1986 Charter in planning for their

retirement, and duly have asked the City and the Board to allow

them to purchase pension credits for years worked in other City

departments. (Compl. at ¶ 29.) Plaintiffs allege that the City

and the Board have denied their requests to purchase pension

credit despite the fact that the Board allowed twelve other Fund

members to do so after the June 1, 1987, deadline. (Compl. at

¶ 29.)

Plaintiffs filed suit against the City and the Board

(collectively “Defendants”) on April 4, 2006, under the

Tennessee Declaratory Judgment Act, requesting the court to

declare the Ordinance of 1986 void as unconstitutional under

both the Tennessee and federal constitutions. Specifically,

Plaintiffs allege the Ordinance violates their due process and

equal protection rights, impairs their vested and unvested

contract rights, constitutes an ultra vires act, and impermissibly

takes their property rights without just compensation. (Compl.

at ¶¶ 32-69.) On May 10, 2006, Defendants filed their Answer

in which they admitted many of Plaintiffs’ factual allegations,

but denied that these allegations constituted any wrongdoing.

Defendants also raised a number of affirmative defenses,

including laches and statutes of limitation. On July 7, 2008,

Plaintiffs filed their Motion for Summary Judgment, and on

August 11, 2008, Defendants filed their Motion for Summary

Judgment. On September 29, 2008, both Plaintiffs and

Defendants filed responses to each others’ motions. . . .

[The issues are whether] the actions of the City and the

Board violated Plaintiffs’ constitutional rights as alleged in

Plaintiffs’ Complaint, and whether Plaintiffs’ suit is barred by

any applicable statute of limitations.

* * *

Defendants argue that all of Plaintiffs’ claims are barred

by any applicable statutes of limitations. . . . Defendants argue

that all of Plaintiffs’ constitutional claims are barred by a one

year statute of limitations pursuant to Tenn. Code Ann. § 28-3-

104 and applicable federal precedent . . . . Defendants [further]

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argue that even if the Court applied the ten year catch-all statute

of limitations in Tenn. Code Ann. § 28-3-110(3), the statute

started to run on June 1, 1987, at the latest and therefore

Plaintiffs in 2006 were too late to file suit.

Plaintiffs, on the other hand, argue that the only statute of

limitation that is applicable in this case is the ten year catch-all

in Tenn. Code Ann. § 28-3-110(3), and that this statute did not

start to run until the Plaintiffs sought to access their pension

benefits upon retirement and were denied the opportunity to

purchase pension credit by the Board. . . . [Plaintiffs further]

argue that the one year statute of limitations is limited to tort

cases involving “compensatory type damages.” . . . Plaintiffs

duly assert that because “[t]here is no category regarding

pension legislation or employment benefits,” their cause of

action “falls into the general catch-all category” in Tenn. Code

Ann. § 28-3-110(3). . . . In the alternative, Plaintiffs suggest

that the six year statute of limitations pursuant to Tenn. Code

Ann. § 28-3-109(a)(3) for actions in contract applies. . . .

The Trial Court then discussed the applicable statute of limitations for a cause

of action brought pursuant to 42 U.S.C. § 1983 for the deprivation of civil rights guaranteed

by the Fourth, Fifth, and Fourteenth Amendments to the federal constitution. The Trial Court

initially determined that all claims brought pursuant to § 1983 had a one year statute of

limitations. The Trial Court then concluded that the statute of limitations began to run when

Plaintiffs knew or had reason to know of the injury. The Trial Court added that a plaintiff

has reason to know of an injury if he would have discovered it through the exercise of

reasonable diligence. The Trial Court stated:

In the present case, Plaintiffs allege that Defendants

deprived them of their Due Process and Equal Protection rights

under the United States Constitution in violation of § 1983. The

relevant Charter provisions were amended via the adoption of an

Ordinance by popular vote in a city-wide referendum on

November 4, 1986, nearly twenty years before Plaintiffs filed

suit. Most of the Due Process defects Plaintiffs allege occurred

on or before this date. The November 4, 1986, general election

did not occur in secret – indeed, the entirety of the Ordinance

was published on the election ballot – and Plaintiffs had as

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much constructive notice of this election as every other

Chattanooga voter.

Likewise, Defendants’ allowance of some officers to

purchase pension credit after the June 1, 1987 deadline occurred

in the late 1980s and early to mid-1990s, well over ten years

prior to Plaintiffs’ initiation of the present suit. In fact, the latest

date on which the Board is alleged to have denied any of

Plaintiffs the opportunity to purchase pension credit was March

8, 2004. . . . Plaintiffs therefore had ample opportunity to gain

the actual and constructive knowledge of their causes of action

over the past twenty years. Regardless of whether the court

dates the accrual of Plaintiffs’ § 1983 cause of action in 1986,

1987 or some subsequent year in which Defendants granted

pension purchase rights to a police officer or firefighter on the

basis of a pre-1987 written request, or conversely denied one of

Plaintiffs’ requests, Plaintiffs’ § 1983 claims do not satisfy the

one year statute of limitations and are therefore time barred.

Next, the Trial Court discussed the applicable statute of limitations for the

remaining claims; specifically, impairment of contract rights, unconstitutional taking without

just compensation, violation of equal protection of the law, and a claim that the

Commission’s amending of the ordinance was an ultra vires act. Because neither Plaintiffs

nor Defendants argued that anything other than a ten year statute of limitations applied to

these claims, the Trial Court proceeded upon the assumption that the ten year statute of

limitations in Tenn. Code Ann. § 28-3-110(3) applied. Based on this assumption, the Trial

Court then discussed when the ten year statute of limitation began to run. The Trial Court

resolved this issue as follows:

In the words of the Sixth Circuit Court of Appeals in

Hodge [v. Service Machine Corp., 438 F.2d 347 (6 th Cir. 1971)],

a case Plaintiffs rely upon in support of their proposition about

the accrual of their causes of action, “[a] cause of action accrues

when a suit may be maintained upon it. A suit may not be

brought upon a cause of action until it exists, and a cause of

action does not exist until all its elements coalesce.” Hodge,

438 F.2d at 349 (internal citation omitted). Plaintiffs

misconstrue the nature of many of their causes of action insofar

as they point to the date of Plaintiffs’ actual retirement as the

date on which Plaintiffs were allegedly wronged, arguing for

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instance that the pensions themselves are the objects of

Defendants’ taking or impairment. However, the right at issue

in this case is the right to purchase pension credit toward time

served in the Department for years worked in other departments.

As such, the date relevant to the accrual of Plaintiffs’ cause of

action is that which marks the termination of this right: June 1,

1987. Any unconstitutional impairment or taking of Plaintiffs’

right to purchase pension credit occurred no later than that date,

and likewise any allege ultra vires municipal acts related to the

adoption of the Ordinance occurred, if at all, prior to that date.

Thus, the elements of any causes of action that may have arisen

from Defendants’ adoption of the Ordinance and the voters’

approval thereof certainly “coalesced” no later than June 1,

1987, and therefore began the running of the ten year statute of

limitations.

Some of the Plaintiffs’ equal protection claims, however,

may satisfy the ten year statute of limitations. The elements of

any of the Plaintiffs’ equal protection claims could not have

“coalesced” until such Plaintiffs were treated different by the

Board than the allegedly similarly situated Department

employees who were allowed to buy pension credits after the

June 1, 1987 deadline. Any Plaintiffs who were denied

permission to purchase pension rights within ten years of the

initiation of this suit (i.e. at any time after April 4, 1996) are

therefore within the ten year statute of limitations as to their

equal protection claims. There is evidence that at least three

Plaintiffs satisfy this criterion. . . . (footnote omitted)

After concluding that “at least three” plaintiffs had timely equal protection

claims, the Trial Court discussed the merits of this particular claim. The Trial Court

explained that, according to Plaintiffs, they were denied equal protection because although

other police officers were allowed to buy back time spent in other city departments,

Plaintiffs were not. The Trial Court characterized this as a “selective enforcement” claim,

which required Plaintiffs to show they were singled out for adverse enforcement for an

impermissible reason. The Trial Court explained that Plaintiffs essentially argued that

because other pension members were allowed to buy back retirement credit contrary to the

amended ordinance, then they also should be allowed to buy back retirement credit contrary

to the ordinance. According to the Trial Court:

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Plaintiffs would have this court invalidate Defendants’ present

enforcement of the Ordinance in favor of action that Plaintiffs

freely admit is “contrary to” the requirements of the law.

Defendants are merely enforcing the Ordinance’s deadline.

Even if they did so incorrectly in the past, their current correct

application of the law cannot be disturbed by this court without

some proof of discriminatory animus on the one hand, or a total

lack of reason on the other.

Because there was no evidence presented showing any proof of discriminatory animus and

because the financial impact of the buy back provision on the actuarial soundness of the

pension plan was a valid reason for the change to the Ordinance, the Trial Court concluded

that Defendants were entitled to summary judgment on Plaintiffs’ timely equal protection

claims as well.

Plaintiffs appeal raising several issues, all of which surround the granting of

Defendants’ motion for summary judgment. In summary, Plaintiffs argue that the Trial Court

incorrectly determined that the statutes of limitation had run on all but their equal protection

claim. Plaintiffs also claim the Trial Court erred in granting summary judgment on their

selective enforcement (equal protection) claim. Finally, Plaintiffs challenge whether they

were given adequate notice that the City intended to amend the ordinance and institute a

deadline for buying back retirement credit.

Defendants assert that the Trial Court correctly granted their motion for

summary judgment. Defendants request an award of attorney fees incurred on appeal.

Discussion

Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is

well established. Because our inquiry involves a question of

law, no presumption of correctness attaches to the judgment, and

our task is to review the record to determine whether the

requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,

50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816

S.W.2d 741, 744 (Tenn. 1991).

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A summary judgment may be granted only when there is

no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.

Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the

summary judgment has the ultimate burden of persuasion “that

there are no disputed, material facts creating a genuine issue for

trial . . . and that he is entitled to judgment as a matter of law.”

Id. at 215. If that motion is properly supported, the burden to

establish a genuine issue of material fact shifts to the

non-moving party. In order to shift the burden, the movant must

either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party

cannot establish an essential element of his case. Id. at 215 n.5;

Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).

“[C]onclusory assertion[s]” are not sufficient to shift the burden

to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our

state does not apply the federal standard for summary judgment.

The standard established in McCarley v. West Quality Food

Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the

words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The

Legacy of Byrd v. Hall: Gossiping About Summary Judgment

in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).

Courts must view the evidence and all reasonable

inferences therefrom in the light most favorable to the

non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn. 1997). A grant of summary judgment is appropriate only

when the facts and the reasonable inferences from those facts

would permit a reasonable person to reach only one conclusion.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

In making that assessment, this Court must discard all

countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

We first address whether the statutes of limitation had run on Plaintiff’s various

claims. Plaintiffs argue on appeal that the shortest potentially applicable statute of

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limitations is the ten year statute of limitation found in Tenn. Code Ann. § 28-3-110(3), then

go on to assert that this “may be a case in which there is no statute of limitations.” At times

before the Trial Court, Plaintiffs argued that perhaps the six year statute of limitations for

breach of contract may apply. Defendants argue that Plaintiffs § 1983 claims have a one-year

statute of limitations. With respect to the other claims, Defendants argue that the longest

potentially applicable statute of limitations is the ten year statute of limitations found in § 28-

3-110(3).2

In our opinion, the dispositive issue in this case is not which statutes of

limitation apply, but rather when any such statute began to run. Shadrick v. Coker, 963

S.W.2d 726 (Tenn. 1998) involved, among other things, when a statute of limitation in a

medical malpractice claim began to run. The Supreme Court explained:

[A] plaintiff may not . . . delay filing suit until all the

injurious effects and consequences of the alleged wrong are

actually known to the plaintiff. Wyatt v. A-Best Company, 910

S.W.2d 851, 855 (Tenn. 1995). Similarly, the statute of

limitations is not tolled until the plaintiff actually knows the

“specific type of legal claim he or she has,” Stanbury, at 672, or

that “the injury constitute[d] a breach of the appropriate legal

standard,” Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994).

Rather, as we have recently emphasized, the statute of

limitations begins to run when the plaintiff knows or in the

exercise of reasonable care and diligence should know that an

injury has been sustained as a result of wrongful or tortious

conduct by the defendant. Stanbury, at 677; see also Roe, 875

S.W.2d at 657 (“[T]he plaintiff is deemed to have discovered the

right of action if he is aware of facts sufficient to put a

reasonable person on notice that he has suffered an injury as a

result of wrongful conduct.”). “It is knowledge of facts

2

Tenn. Code Ann. § 28-3-110 provides that “[t]he following actions shall be commenced within ten

(10) years after the cause of action accrued:

(1) Actions against guardians, executors, administrators, sheriffs, clerks, and other public

officers on their bonds;

(2) Actions on judgments and decrees of courts of record of this or any other state or

government; and

(3) All other cases not expressly provided for.”

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sufficient to put a plaintiff on notice that an injury has been

sustained which is crucial.” Stanbury, at 678. Such knowledge

includes not only an awareness of the injury, but also the

tortious origin or wrongful nature of that injury. Hathaway v.

Middle Tennessee Anesthesiology, P.C., 724 S.W.2d 355, 359

(Tenn. App. 1986).

Shadrick, 963 S.W.2d at 733-34.

Returning to the present case, regardless of which statute of limitation

ultimately applies, that statute began to run “when the plaintiff knows or in the exercise of

reasonable care and diligence should know that an injury has been sustained as a result of

wrongful or tortious conduct by the defendant.” Id. at 733. Attached to Defendants’ motion

for summary judgment was the affidavit of Mary Helms, head of the Local History and

Genealogy Department at the Chattanooga-Hamilton County Library. According to Helms:

I personally researched and copied the following materials

pertaining to the November 4, 1986 Election:

a. The legal notice entitled, “NOTICE OF

REFEREN D UM ELEC T IO N C ity of

Chattanooga, Tennessee Ordinance No. 8688,”

which ran in the Chattanooga Times on August

21, 1986, page E6 . . . .

b. The legal notice entitled, “NOTICE OF

R E FER E N D U M ELECTIO N City of

Chattanooga, Tennessee Ordinance No. 8688,”

which ran in the Chattanooga News-Free Press

on August 21, 1986, Page G2 . . . .

c. The legal notice entitled “ELECTION SAMPLE

BALLOT CHATTANOOGA SCHOOL BOARD

AND CHARTER AMENDMENT Tuesday,

November 4, 1986,” which ran in the

Chattanooga Times on October 31, 1986, page

C5 . . . .

d. The legal notice entitled “ELECTION SAMPLE

BALLOT CHATTANOOGA SCHOOL BOARD

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AND CHARTER AMENDMENT Tuesday,

November 4, 1986,” which ran in the

Chattanooga News-Free Press on October 31,

1986, page D3 . . . .

The referendum was published in its entirety in the paper prior to the election.

Then, on November 4, 1986, the citizens of Chattanooga voted in favor of the referendum.

Once the referendum was passed, the amended ordinance went on the books and in effect.

It is inescapable that Plaintiffs either were or should have been aware of the alleged wrongful

conduct (i.e., the establishment of a cut-off date of June 1, 1987, in which to buy back

retirement credit for time spent in other City departments) at the very latest on November 4,

1986, when the referendum was passed by the voters. When the referendum was passed on

November 4, 1986, anyone employed in the police or fire departments knew or should have

known at that time that they had until June 1, 1987, in which to buy back retirement for time

spent working in other city departments. Accordingly, we hold that any applicable statute

of limitations began to run on November 4, 1986.

The present lawsuit was filed in April of 2006, over nineteen years after the

referendum was passed by the voters. Since any statute of limitation began to run on

November 4, 1986, it does not matter if a one-year, six-year, or ten-year statute of limitations

applies because all of these statutes of limitations would have run long before the time this

lawsuit was filed.3

Plaintiffs argue that they were “lulled” into not filing suit and, therefore, any

applicable statute of limitations was either waived or should be tolled. As noted by the

Supreme Court in Paducah v. City of Johnson City, 896 S.W.2d 767 (Tenn. 1995), “[p]ublic

agencies are not subject to equitable estoppel or estoppel in pais to the same extent as private

parties and very exceptional circumstances are required to invoke the doctrine against the

State and its governmental subdivisions.” Id. at 772 (quoting Bledsoe County v.

McReynolds, 703 S.W.2d 123, 124 (Tenn.1985)). In Elizabethton Housing & Dev. Agency,

Inc. v. Price, 844 S.W.2d 614 (Tenn. Ct. App. 1992); this Court stated:

“It is significant to observe that in those Tennessee cases where

estoppel was applied, or could have been applied, the public

body took affirmative action that clearly induced a private party

to act to his or her detriment, as distinguished from silence,

3

A ten year statute of limitations is the longest statute of limitations Plaintiffs claim may be

applicable to this case. We reject Plaintiff’s unsupported assertion that this may be a case where no statute

of limitations applies.

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non-action or acquiescence.” [Bledsoe County v. McReynolds],

703 S.W.2d at 125. . . . Estoppel is appropriate against

government agencies only when the agency induced the party to

give up property or a right in exchange for a promise. Thus,

estoppel is appropriate when the facts clearly evidence an

implied contract, Gas-light Co. v. Memphis, 93 Tenn. 612, 30

S.W. 25 (1894); Trull v. City of Lobelville, 554 S.W.2d 638

(Tenn. App. 1976); Brown v. City of Manchester, 722 S.W.2d

394, 397 (Tenn. App. 1986), or when the government induces a

private party to relinquish a cause of action, State ex rel.

Ammons v. City of Knoxville, 33 Tenn. App. 622, 232 S.W.2d

564 (1950).

Price, 844 S.W.2d at 618.

We do not find any conduct of the City that would rise to this level. Plaintiffs

admit that when they sought to buy back retirement credit, their request was denied. Minutes

from the Pension Board meeting of October 4, 1994, show that the City’s attorney discussed

the possibility of a lawsuit being filed. The record shows that at various times, one or two

members of the Pension Board or City Council indicated they would support allowing a buy

back of retirement credits. However, simply because a member of the City Council or the

Pension Board supported Plaintiffs’ position or because the City agreed to look into the

matter further does not mean the City waived the issue or otherwise is estopped. In fact, in

2003, Plaintiffs and other similarly situated personnel were, as described by counsel for

Plaintiffs on appeal, “invited” to file suit against the City. This is directly contrary to an

assertion that they were “lulled” into not filing suit. Although Plaintiffs unsuccessfully

sought to buy back retirement credit and the matter was discussed at Pension Board meetings,

we find nothing in the record that could be characterized, even viewing the evidence and all

reasonable inferences in the light most favorable to Plaintiffs, as the City inducing Plaintiffs

to relinquish suing or as an estoppel to the City asserting a statute of limitations defense. See

Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 146 (Tenn. 2001)(“Equitable estoppel only applies

when the defendant has taken steps to specifically prevent the plaintiff from timely filing his

complaint (as where he promises not to plead the statute of limitations.”)). We further note

that several of the events which Plaintiffs claim resulted in an estoppel or waiver occurred

after any applicable statute of limitations had already expired.

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We affirm the judgment of the Trial Court finding that the statute of limitations

had run on all of Plaintiffs’ claims except the selective enforcement claim.4 As to this claim,

we agree with the Trial Court that simply because, many years ago, the Pension Board may

improperly have allowed several police officers to buy back credit for time spent in other

departments, this does not automatically mean that not allowing Plaintiffs to improperly do

the same thing amounts to a violation of the equal protection clause or results in illegal

selective enforcement. If we accepted this argument, then we would have to “not apply” the

amended ordinance to these Plaintiffs. In turn, Defendants, and the courts, would be

prohibited from applying the amended ordinance to the next set of plaintiffs because they

would be treating them differently than the current Plaintiffs, etc. The end result would be

to completely invalidate the amended ordinance with respect to each and every member of

the police and fire departments who previously worked in other departments.

In reaching the conclusion that there has been no selective enforcement, we

emphasize that there has been no showing whatsoever that the City is enforcing the amended

ordinance based on an impermissible criteria, such as race or sex, etc. There is no genuine

issue as to this fact. Accordingly, the Pension Board need only have a rational basis for its

actions. See Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 518 (Tenn. 2005)(“It

is elementary that where neither fundamental rights nor suspect classifications are at issue,

rational basis scrutiny applies.”). Complying with the ordinance as amended by the citizens

of Chattanooga clearly constitutes a rational basis for the action. Simply because the Pension

Board may have improperly allowed some officers to buy back retirement credit more than

a decade ago does not mean that the amended ordinance cannot be enforced properly now.

Finally, we address Plaintiffs’ argument that they did not receive proper notice

that the City intended on amending the ordinance. Assuming, without deciding, that

Plaintiffs were entitled to due process prior to the ordinance being amended, the undisputed

facts set forth above show that Plaintiffs and, indeed, the entire City were provided with

abundant due process. Plaintiffs were provided notice in the newspapers on more than one

occasion, the amendment was placed on the ballot, the amendment was put to a vote by the

citizens of Chattanooga, and the amendment was passed by a majority of voters. In short,

we conclude that Plaintiffs were provided ample due process including proper notice.

While this appeal was pending, Defendants filed a motion requesting an award

of attorney fees pursuant to 42 U.S.C. § 1983. Defendants acknowledge that such an award

would be discretionary. Exercising our discretion, we decline to award attorney fees. All

remaining issues are necessarily pretermitted.

4

We will assume, without deciding, that the statute of limitations for the selective enforcement claim

had not run by the time suit was filed as to at least some of the Plaintiffs.

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Conclusion

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

Chancery Court for Hamilton County solely for collection of the costs below. Costs on

appeal are taxed to the Appellants, Charles H. Bryson, Randall Vincent Dean, James Terry

Marlin, Paul W. Lee, Jr., Randy W. Dunn, Francene H. Fleming, Anderson G. Hass, Danny

B. Hill, Thomas B. Kennedy, Thomas D. McKinney, Sully Batts, Kimberly K. Miller,

Kenneth D. Phillips, Kimberly Reavley, and Bryan D. Moody, and their surety, for which

execution may issue, if necessary.

_________________________________

D. MICHAEL SWINEY, JUDGE

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