Lisa Lynn Odom v. Claiborne County, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 21, 2015

LISA LYNN ODOM, ET AL v. CLAIBORNE COUNTY, TENNESSEE, ET AL

Appeal from the Circuit Court for Claiborne County

No. 12-CV-1006 Jon Kerry Blackwood, Judge1

No. E2014-02328-COA-R3-CV – Filed March 29, 2016

_________________________________

An “affidavit of complaint” was issued against Lisa Odom for custodial interference.

Deputies from the Claiborne County Sheriff‟s Office visited Ms. Odom for the purpose of

taking custody of her child and returning her to Ms. Odom‟s ex-husband, Scott Odom.

Ms. Odom objected to the removal of her child, and William Phipps, Ms. Odom‟s father,

asked to see a warrant prior to the removal of the child. After a prolonged standoff, the

deputies called Assistant District Attorney General Amanda Sammons, who explained

over a speakerphone that a warrant was not necessary because there was a court order for

Ms. Odom to return the child to Mr. Odom. During the course of the phone call, Ms.

Odom overheard General Sammons use derogatory language when referring to her. Ms.

Odom was ultimately arrested for custodial interference. Nearly a year later, Ms. Odom

and Mr. Phipps (collectively the plaintiffs) filed a complaint against General Sammons

alleging intentional infliction of emotional distress and civil conspiracy. General

Sammons filed a motion to dismiss, which the trial court granted. The plaintiffs appeal.

We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., AND JOHN W. MCCLARTY, J., joined.

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Lisa Lynn Odom and

William Phipps.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Mary M. Bers, Senior Counsel, Nashville, Tennessee, for the appellee,

Amanda Sammons.

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Sitting by designation.

OPINION

I.

The Odoms were divorced on December 2, 2008. One child was born to their

union. Following their divorce, Ms. Odom and Mr. Odom shared custody of the child.

On July 12, 2012, Bill Baumgardner, a sergeant of the Claiborne County Sheriff‟s Office,

executed an affidavit of complaint against Ms. Odom for custodial interference, pursuant

to Tenn. Code Ann. § 39-13-306 (2010). The affidavit of complaint states as follows:

Affiant, Sgt. B. Baumgardner, found through an investigation

that [Ms. Odom] and Scott Odom share custody of a minor

child. Affiant learned that [Ms. Odom] and Scott Odom share

custody of minor child by guidelines that were set forth by a

court order. It was found that [Ms. Odom] did commit the

offense of custodial interference when she removed said

minor child from the state of Tennessee and into the state of

California, thus restricting Scott Odom from his entitled,

court ordered visitation time with said minor child.

Thereafter, on August 7, 2012, deputies from the Claiborne County Sheriff‟s Office went

to the home of William Phipps, where Ms. Odom was living, to take custody of the child.

One of the deputies entered Mr. Phipps‟ home, took custody of the child, and gave the

child to Mr. Odom, who had accompanied the deputies. Ms. Odom protested the removal

of the child, and her father requested that the deputies show them a warrant. After

speaking with Mr. Phipps and Ms. Odom for approximately two hours, the deputies

called General Sammons and put her on a speakerphone. General Sammons explained

over the phone that a warrant was not necessary because there was a court order for Ms.

Odom to return the child to Mr. Odom. At some point while General Sammons was on

speakerphone, Ms. Odom overheard General Sammons call her a “jerk,” refer to her as a

“troublemaker,” and say, “Take that bitch to jail.” Ms. Odom was subsequently

handcuffed and taken to the Claiborne County jail. The custodial interference criminal

charge against Ms. Odom was eventually dismissed.

On August 5, 2013, the plaintiffs filed a complaint2 against General Sammons

alleging (1) intentional infliction of emotional distress and (2) civil conspiracy in

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The complaint also listed Mr. and Ms. Odom‟s minor child and the State of Tennessee

as plaintiffs. However, the State Attorney General never authorized Ms. Odom and Mr. Phipps

to bring this action in the name of the State. In addition, the complaint named Mr. Odom,

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violation of Tenn. Const. art. I, §§ 7, 8. On September 6, 2013, General Sammons filed a

motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6). On October 1, 2014, the

plaintiffs filed a motion to amend their complaint to add allegations that General

Sammons‟ secretary had a “social relationship” with Mr. Odom and that General

Sammons “prosecuted multiple prior criminal proceedings instituted by [Mr.] Odom that

were all dismissed.” The trial court entered an order on October 6, 2014, allowing the

amendments.

On October 23, 2014, the trial court filed its findings and conclusions. With

respect to the intentional infliction of emotional distress claim against General Sammons,

the trial court stated:

Because mere insults do not rise to the level of outrageous

conduct required for an intentional infliction of emotional

distress claim and because the Complaint fails to allege

anything concerning General Sammons beyond the allegation

that she called Ms. Odom a “jerk,” “trouble maker,” and said

“take the bitch to jail,” the [p]laintiff[s] have failed to state a

claim for intentional infliction of emotional distress against

General Sammons.

As for the civil conspiracy charge against General Sammons, the trial court concluded,

Tennessee courts have continuously determined that Tenn.

Const. [a]rt. I, § 17 does not create a substantive right, only a

“mechanism by which a citizen may redress grievances.”

State ex rel. Moncier [v. Jones], [No. M2012-01429-COA-

R3-CV], 2013 WL 2492648, [at] *6 (Tenn. Ct. App. [Nov.

13,] 2013); see Staples v. Brown, 85 S.W. 254 (Tenn. 1905).

In State ex rel. Moncier, the Court specifically declined to

hold that Article [I], Section 17 creates a substantive cause of

action to enforce other constitutional provisions or laws. Id.

This [c]ourt declines to reject this long standing rule in

Claiborne County, Sheriff Baumgartner, multiple deputies from the Claiborne County Sheriff‟s

Office, and Arthur J. Gallagher, Risk Management Services, Inc. as defendants. General

Sammons is the only defendant named in either the original complaint or the first amended

complaint who is a party to this appeal. Accordingly, we will only discuss the allegations

pertinent to General Sammons.

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Tennessee that there is no implied cause of action based on

violations of the Tennessee Constitution.

Further, assuming that General Sammons was acting in

conspiracy to violate [p]laintiffs‟ [c]onstitutional rights, she is

entitled to a prosecutor‟s immunity, as an assistant district

attorney general, from damages arising from her initiation and

pursuit of a prosecution. See Simmons v. Gath Baptist

Church, 109 S.W.3d 370 (Tenn. Ct. App. 2003); Willett v.

Ford, 603 S.W.2d 143 (Tenn. Ct. App. 1979). Therefore,

[p]laintiff[s] have failed to state a claim for which relief can

be granted for civil conspiracy against General Sammons.

Accordingly, the trial court granted General Sammons‟ motion to dismiss.

II.

The plaintiffs filed a notice of appeal on November 21, 2014, raising the following

issues:

Whether the trial court erred by granting General Sammons‟

Tenn. R. Civ. P. 12.02(6) motion to dismiss the plaintiffs‟

claims of intentional infliction of emotional distress.

Whether the plaintiffs have a cause of action for injuries

caused by General Sammons as a state actor for violating Ms.

Odom‟s rights provided her by Tennessee‟s Constitution.

Whether General Sammons has absolute prosecutorial

immunity.

Whether General Sammons is individually liable.

III.

On the issue of a Tenn. R. Civ. P. 12.02(6) motion to dismiss, we are guided by

the following principles as articulated by the Supreme Court:

A Rule 12.02(6) motion challenges only the legal sufficiency

of the complaint, not the strength of the plaintiff‟s proof or

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evidence. Highwoods Props., Inc. v. City of Memphis, 297

S.W.3d 695, 700 (Tenn. 2009); Willis v. Tenn. Dep't of

Corr., 113 S.W.3d 706, 710 (Tenn. 2003); Bell ex rel. Snyder

v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg,

P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Sanders v.

Vinson, 558 S.W.2d 838, 840 (Tenn. 1977)). The resolution

of a 12.02(6) motion to dismiss is determined by an

examination of the pleadings alone. Leggett v. Duke Energy

Corp., 308 S.W.3d 843, 851 (Tenn. 2010); Trau-Med of Am.,

Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002);

Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878

S.W.2d 934, 938 (Tenn. 1994); Cornpropst v. Sloan, 528

S.W.2d 188, 190 (Tenn. 1975). A defendant who files a

motion to dismiss “ „admits the truth of all of the relevant and

material allegations contained in the complaint, but . . .

asserts that the allegations fail to establish a cause of

action.‟ ” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d

850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v.

Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005)); see

Edwards v. Allen, 216 S.W.3d 278, 284 (Tenn. 2007); White

v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn.

2000); Holloway v. Putnam Cnty., 534 S.W.2d 292, 296

(Tenn. 1976).

In considering a motion to dismiss, courts “ „must construe

the complaint liberally, presuming all factual allegations to be

true and giving the plaintiff the benefit of all reasonable

inferences.‟ ” Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-

32 (Tenn. 2007) (quoting Trau-Med, 71 S.W.3d at 696); see

Leach v. Taylor, 124 S.W.3d 87, 92-93 (Tenn. 2004); Stein v.

Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997);

Bellar v. Baptist Hosp., Inc., 559 S.W.2d 788, 790 (Tenn.

1978); see also City of Brentwood v. Metro. Bd. of Zoning

Appeals, 149 S.W.3d 49, 54 (Tenn. Ct. App. 2004) (holding

that courts “must construe the complaint liberally in favor of

the plaintiff by . . . giving the plaintiff the benefit of all the

inferences that can be reasonably drawn from the pleaded

facts”). A trial court should grant a motion to dismiss “only

when it appears that the plaintiff can prove no set of facts in

support of the claim that would entitle the plaintiff to relief.”

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Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857

(Tenn. 2002); see Lanier v. Rains, 229 S.W.3d 656, 660

(Tenn. 2007); Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.

1999); Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d

690, 691 (Tenn. 1984); Fuerst v. Methodist Hosp. S., 566

S.W.2d 847, 848 (Tenn. 1978); Ladd v. Roane Hosiery,

Inc., 556 S.W.2d 758, 759–60 (Tenn. 1977). We review the

trial court‟s legal conclusions regarding the adequacy of the

complaint de novo. Brown, 328 S.W.3d at 855; Stein, 945

S.W.2d at 716.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

IV.

The plaintiffs have alleged that General Sammons is guilty of intentional infliction

of emotional distress. “The elements of an intentional infliction of emotional distress

claim are that the defendant‟s conduct was (1) intentional or reckless, (2) so outrageous

that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the

plaintiff.” Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (citing

Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004)); Leach v. Taylor, 124

S.W.3d 87, 92 (Tenn. 2004); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). When

determining whether particular conduct is so outrageous that it is not tolerated by

civilized society, “the test often used by our courts is the one found in the Restatement

(Second) of Torts § 46 comment d (1964).” Alexander v. Inman, 825 S.W.2d 102, 105

(Tenn. Ct. App. 1991). Comment d states that,

[t]he cases thus far decided have found liability only where

the defendant‟s conduct has been extreme and outrageous. It

has not been enough that the defendant has acted with an

intent which is tortious or even criminal, or that he has

intended to inflict emotional distress, or even that his conduct

has been characterized by “malice,” or a degree of

aggravation which would entitle the plaintiff to punitive

damages for another tort. Liability has been found only where

the conduct has been so outrageous, as to go beyond all

possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community. Generally,

the case is one in which the recitation of the facts to an

average member of the community would arouse his

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resentment against the actor, and lead him to exclaim,

“Outrageous!”

The liability clearly does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other

trivialities. The rough edges of our society are still in need of

a good deal of filing down, and in the meantime plaintiffs

must necessarily be expected and required to be hardened to a

certain amount of rough language, and to occasional acts that

are definitely inconsiderate and unkind. There is no occasion

for the law to intervene in every case where some one’s

feelings are hurt. There must still be freedom to express an

unflattering opinion, and some safety valve must be left

through which irascible tempers may blow off relatively

harmless steam. It is only where there is a special relation

between the parties, as stated in § 48, that there may be

recovery for insults not amounting to extreme outrage.

Restatement (Second) of Torts § 46 cmt. d (emphasis added and internal citation

omitted).

In the present case, the plaintiffs‟ intentional infliction of emotional distress claim

against General Sammons hinges on three separate comments concerning Ms. Odom.

Specifically, the plaintiffs allege that General Sammons called Ms. Odom a “jerk,” a

“troublemaker,” and a “bitch.” While all three of these comments were derogatory and

inappropriate in nature, none of them rise to the high standard of outrageousness

necessary to sustain a claim for intentional infliction of emotional distress. As the

Restatement makes clear, “liability . . . does not extend to mere insults, indignities . . . or

other trivialities.” That is what we are dealing with in this case. Accordingly, the

plaintiffs have failed to state a claim for which relief can be granted for intentional

infliction of emotional distress by General Sammons, and the trial court correctly

dismissed this claim.

V.

The plaintiffs next argue that General Sammons “participated in a civil conspiracy

to violate [Ms. Odom‟s] rights provided her by the Tennessee Constitution in Art. I, § 7

and Art. I, § 8.” The plaintiffs contend that they are entitled to bring such a claim

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pursuant to Tenn. Const. art. I, § 17.3 The trial court disposed of the conspiracy charge

against General Sammons by noting that “Tennessee courts have continuously

determined that Tenn. Const. Art. I, § 17 does not create a substantive right, only a

mechanism by which a citizen may redress grievances.” (Internal citation and quotation

marks omitted.) The trial court concluded that “there is no implied cause of action based

on violations of the Tennessee Constitution.”

As noted by the trial court, this Court has previously addressed the issue of

whether Tenn. Const. art. I, § 17 creates a cause of action for violations of other

constitutional provisions. In State ex re. Moncier v. Jones, we stated that,

[t]he trial court held that there is no private cause of action for

damages based on violations of the Tennessee Constitution

and accordingly dismissed the claims of violation of the

Tennessee Constitution. On appeal, Mr. Moncier argues that

Article [I], Section 17 grants him a cause of action against

Ms. Jones for “violations of other Bill of Rights in

Tennessee‟s constitution; violation of Tennessee statutes;

violations of Tennessee rules; and violations of Tennessee

established torts.” We have reviewed the cases cited by Mr.

Moncier and considered his argument and decline to hold

that Article [I], Section 17 creates a substantive cause of

action to enforce other constitutional provisions or law.

Article I, Section 17 was before the court in Staples v.

Brown, an action involving the contest of an election to the

position of city attorney of Harriman; the initial challenge

was heard by the city council, which accepted the results and

dismissed the contest. The contestant‟s appeal to the Roane

County circuit court was dismissed because the statute which

vested the city council with jurisdiction to try the contest did

not provide for an appeal. On appeal, our Supreme Court

reversed the trial court; with respect to Article I, Section 17,

the court stated:

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“That all courts shall be open; and every man, for an injury done him in his lands,

goods, person, or reputation, shall have remedy by due course of law, and right and justice

administered without sale, denial, or delay. Suits 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.

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The Constitution (article [I], § 17) provides that

all courts shall be open, and every man having

an injury done him in his lands, goods, person,

or reputation shall have remedy by due course

of law, and right and justice administered

without sale, denial, or delay.

The obvious meaning of this is that there shall

be established courts proceedings according to

the course of the common law, or some system

of well established judicature, to which all of

the citizens of the state may resort for the

enforcement of rights denied, or redress of

wrongs done them.

Staples [v. Brown], 85 S.W. 254, 255 ([Tenn.] 1905). The

court proceeded to discuss the appropriate court and

procedure to hear the appeal of the contest and remanded the

case to the circuit court for retrial on the merits. The case

stands for the proposition that the constitutional provision

does not create a right but, rather, requires a mechanism by

which a citizen may redress grievances.

State ex rel. Moncier v. Jones, No. M2012-01429-COA-R3-CV, 2013 WL 2492648, at

*6 (Tenn. Ct. App. M.S., filed June 6, 2013), perm app. denied (Tenn. Nov. 13, 2013)

(emphasis added). We reiterate the holdings of Staples and State ex rel. Moncier. The

plaintiffs are attempting to expand the language of Tenn. Const. art. I, § 17 so as to find a

substantive right that simply does not exist. The trial court was correct in declining to

find an implied cause of action in Tenn. Const. art. I, § 17 based on violations of the

Tennessee Constitution. We agree with the trial court‟s conclusion that the plaintiffs

have failed to state a claim for which relief can be granted for civil conspiracy against

General Sammons.

VI.

The plaintiffs have raised two additional issues: (1) whether General Sammons has

absolute prosecutorial immunity and (2) whether General Sammons is individually liable.

We have already affirmed the trial court‟s dismissal of the plaintiffs‟ claims against

General Sammons for intentional infliction of emotional distress and civil conspiracy.

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Accordingly, it is unnecessary to analyze the issues of prosecutorial immunity and

individual liability, and those issues are pretermitted.

VII.

The trial court‟s grant of Ms. Sammons‟ motion to dismiss is affirmed. Costs on

appeal are assessed to the appellants, Lisa Lynn Odom and William Phipps. This case is

remanded, pursuant to applicable law, for collection of costs assessed by the trial court.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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