David R. Fitzgerald v. Hickman County Government

04/04/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 14, 2018 Session

DAVID R. FITZGERALD v. HICKMAN COUNTY GOVERNMENT, ET

AL.

Appeal from the Circuit Court for Hickman County

No. 16CV-2 Joseph Woodruff, Judge

___________________________________

No. M2017-00565-COA-R3-CV

___________________________________

Former county employee appeals the dismissal of his claims against the county and the

county mayor related to the termination of his employment. In his complaint, the

employee raised claims of violations of due process, indemnification, restitution,

negligence, invasion of privacy, workplace harassment, intentional infliction of emotional

distress, and misrepresentation. After the county and county mayor filed a motion to

dismiss, the trial court ruled that it would decide the motion without the benefit of a

hearing. The trial court eventually dismissed all the claims; some claims, however, were

dismissed on the basis of summary judgment after the trial court considered a county

personnel manual. We conclude that the trial court was entitled to consider the personnel

manual as part of the pleadings for purposes of the motion to dismiss under Rule 10.03 of

the Tennessee Rules of Civil Procedure. Consequently, we affirm the dismissal of all

claims raised by the employee under the motion to dismiss standard, with the exception

of the employee’s claim against the county mayor for false light invasion of privacy.

Affirmed in part, reversed in part, and remanded.

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

Part; Reversed in Part; and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Robin C. Moore, Carthage, Tennessee, for the appellant, David R. Fitzgerald.

Michael T. Schmitt, Nashville, Tennessee, for the appellees, Hickman County,

Tennessee, and Mayor of Hickman County, Shaun Lawson.

OPINION

Background

Appellant David R. Fitzgerald (“Appellant”) filed a complaint in 2016 against

Appellees Hickman County Government (“Hickman County”) and the Hickman County

Mayor, Shaun Lawson (“Mayor Lawson,” and together with Hickman County,

“Appellees”). The complaint alleged violations of due process, claims for indemnification

and restitution, negligence, invasion of privacy, workplace harassment, intentional

infliction of emotional distress, and intentional and negligent misrepresentation. The

complaint was later amended to clarify the parties and to omit a prior claim under the

Open Meetings Act.1 We summarize the facts from Appellant’s complaint, which will be

more fully discussed infra.

According to the amended complaint, Appellant had been employed by Hickman

County since 1999. In 2015, he served as Emergency Management Director, as he had

been hired under Hickman County’s previous mayor. Sometime following the election of

Mayor Lawson, however, Appellant alleged that Appellees, chiefly through the actions of

Mayor Lawson, subjected Appellant to a continuing course of unlawful, malicious, and

retaliatory conduct that destroyed his reputation and forced a “constructive discharge”

from his employment. As early as December 2, 2014, Appellant states that rumors began

to surface that Mayor Lawson intended to terminate Appellant’s employment. Although

Appellant contends that Mayor Lawson assured him that the rumors regarding

termination were untrue, on January 6, 2015, Mayor Lawson removed Appellant from his

position, citing what Appellant describes as “bogus complaints” by disgruntled

employees.2

After Appellant was provided notice of his termination, but while he was still

employed with Hickman County,3 Appellant attempted to participate in the Hickman

County Grievance Procedure (“Grievance Procedure”) as outlined by the Hickman

County Personnel Policies and Procedures Manual (“Personnel Manual”). Eventually on

January 26, 2015, Mayor Lawson sent Appellant a letter stating that after “careful

thought and review,” Appellant’s grievance claim had been denied. Appellant alleged,

however, that the proper procedure was not followed and he was deprived of a hearing

before the Grievance Committee. In support of this assertion, Appellant cited portions of

the Personnel Manual; the entirety of the handbook, however, was not appended to

1

For example, the Hickman County Attorney (“County Attorney”) was also named as a

defendant but was later dismissed and is not at issue in this appeal.

2

In particular, Appellant alleged that he had issued a written reprimand to one of his subordinates

for failing to follow his instructions. Appellant alleged, however, that this employee was a close friend of

Mayor Lawson and that the employee’s husband was later hired to fill the Emergency Management

Director position after Appellant’s employment was terminated.

3

According to Appellant, although he was notified of the termination of his employment on

January 6, 2015, he continued in that position until January 16, 2015.

-2-

Appellant’s complaint. Following the termination of Appellant’s employment as

Emergency Management Director, Appellant asserted that Hickman County hired a new

director who was not qualified for the position pursuant to legal requirements.

Appellant further alleged that at the time of the termination of his employment

Mayor Lawson promised him that Hickman County would create a new job for him,

albeit at a substantially lower salary; the job was never created after the Hickman County

Commission (“County Commission”) determined that it could not afford to fund the new

position. Appellant thereafter took a job with the Hickman County Sheriff’s Department

(“Sheriff’s Department”).4 Later, after certain public statements were made by Mayor

Lawson and the County Attorney regarding an alleged extramarital affair by Appellant

and allegations that Appellant had improperly received certain compensation in his final

payment as Emergency Management Director, Appellant alleged that he was forced to

resign “from his full-time position with the Sheriff's Department.”5

Appellees filed a motion to dismiss the complaint, asserting governmental

immunity and failure to state a claim upon which relief could be granted. In support of

their motion, Appellees attached the entirety of the Personnel Manual. On July 1, 2016,

the trial court ordered Appellant to file a reply brief and ruled that it would decide the

motion “on the papers.”

On or about August 26, 2016, the trial court issued its ruling dismissing all of the

claims against Appellees. First, the trial court ruled that Hickman County was immune

from suit with regard to the claims of violations of due process (Count 1), invasion of

privacy (Counts 4 & 5), intentional infliction of emotional distress (Count 6), workplace

harassment (Count 7), and intentional and negligent misrepresentation (Counts 8 & 9). As

such, the trial court dismissed these Counts under Rule 12.02(6). With regard to the

violations of due process allegations against Mayor Lawson, the trial court ruled that

Appellant’s allegation that he was deprived of a property interest in his employment was

incorrect because the Personnel Manual stated that he was an “at-will” employee; as

such, the trial court granted summary judgment on this claim.

With regard to Appellant’s indemnification and restitution claims (Count 2), the

trial court ruled that Appellant had no contractual right to use Hickman County’s

grievance procedure after his employment was terminated, due to his at-will employment

status; thus, summary judgment was granted as to this Count. The trial court also found

that Appellant failed to establish a contract for future employment, as the trial court

found no facts alleged showing mutual assent to the terms of the contract or acceptance

of the contract; thus, this dismissal was also based upon Rule 12.02(6).

4

In his complaint, Appellant stated that this employment began as part-time employment but was

later upgraded to full-time employment.

5

In his later motion to alter or amend, Appellant alleged that he was still employed by the

Sheriff’s Department part-time.

-3-

With regard to Appellant’s negligence claim (Count 3), in which Appellant alleged

that Appellees were negligent in hiring his successor, the trial court ruled that Appellant’s

complaint failed to contain any specific averments that Appellant was harmed by the

alleged negligence or that Appellees owed a duty specifically to Appellant in this regard

and that Appellant lacked standing to bring such a claim. Finally, the trial court ruled that

Mayor Lawson could only be liable for the allegations against him if his actions were

malicious, criminal, or performed for personal gain. The trial court considered each

remaining count and concluded that Appellant’s complaint failed to contain specific

allegations to support all of the elements of each claim or that the facts alleged did not

amount to willful or malicious conduct so as to allow liability. The trial court later

partially granted a motion to alter or amend to include additional factual averments and

then entered another order awarding attorney’s fees. From these orders, Appellant

appeals.6

Issues Presented

Appellant raises two issues, which are taken from his brief:

1. Whether the trial court erred by dismissing Appellant’s complaint by

granting summary judgment in favor of Appellees on Counts One and Two

of the Amended Complaint, sua sponte and without notice and without

either party conducting any discovery.

2. Whether Appellant’s complaint stated a claim for relief.

Discussion

I.

As an initial matter, the parties disagree as to whether the trial court correctly

converted certain matters to issues of summary judgment by relying on the Personnel

Manual. Specifically, Appellees assert that the trial court was not required to convert the

motion to one for summary judgment by relying on the Personnel Manual because this

document was required to be appended to Appellant’s complaint pursuant to Rule 10.03

of the Tennessee Rules of Civil Procedure. Appellant asserts, however, that summary

judgment was the correct standard but that the trial court should not have granted

summary judgment prior to allowing full discovery.

Under Rule 10.03 of the Tennessee Rules of Civil Procedure,

6

While this appeal was pending, Appellant filed a motion for remand to the trial court for the

adjudication of a motion under Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court

eventually denied the motion; the denial of Appellant’s Rule 60.02 motion has not been raised as an issue

in this appeal.

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Whenever a claim or defense is founded upon a written instrument other

than a policy of insurance, a copy of such instrument or the pertinent parts

thereof shall be attached to the pleading as an exhibit unless the instrument

is (1) a matter of public record in the county in which the action is

commenced and its location in the record is set forth in the pleading; (2) in

the possession of the adverse party and this fact is stated in the pleading; (3)

inaccessible to the pleader or is of such nature that attaching the instrument

would be unnecessary or impracticable and this fact is stated in the

pleading, together with the reason therefor. Every exhibit so attached or

referred to under (1) and (2) shall be a part of the pleading for all purposes.

Tenn. R. Civ. P. 10.03. Here, Appellant specifically cited portions of the Personnel

Manual in his amended complaint in support of his argument that an implied contract

existed that entitled him to relief. Thus, the Personnel Manual clearly falls within the

purview of Rule 10.03. Not included in the cited portions contained in Appellant’s

amended complaint, however, were portions of the Personnel Manual stating that

Appellant was an at-will employee. The relevant portions of the Personnel Manual were

included in Appellees’ motion to dismiss, and the entirety of the Personnel Manual was

appended to Appellees’ motion. Additionally, in his reply brief, Appellant specifically

concedes that the Personnel Manual provides that he is an at-will employee.

In a similar situation, we have held that “a plaintiff should not be entitled to avoid

a motion to dismiss in reliance upon Rule 10.03 exhibits by simply shirking its duty to

properly attach such exhibits.” Belton v. City of Memphis, No. W2015-01785-COA-R3-

CV, 2016 WL 2754407, at *4 (Tenn. Ct. App. May 10, 2016). Appellant cannot rely on

certain portions of the Personnel Manual in support of his claims in partial compliance

with Rule 10.03 while insisting that other, undisputed portions of the same document be

excluded from our review. We therefore consider the entirety of the Personnel Manual as

an exhibit under Rule 10.03. Where documents are required to be attached to a complaint

in conformity with Rule 10.03, consideration of those documents by the trial court does

not convert a motion to dismiss to a motion for summary judgment. See Samick Music

Corp. v. Hoy, No. M2008-00441-COA-R3-CV, 2008 WL 4682216, at *1 (Tenn.Ct.App.

Oct. 22, 2008) (“A trial court should review only the complaint, and any exhibits attached

in accordance with Tenn. R. Civ. P. 10.03, when considering a motion to dismiss, and

matters outside the pleadings should not be considered.”) (emphasis added) (citing Trau-

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

v. Thompson, 212 S.W.3d 263, 266 (Tenn. Ct. App. 2006); Pendleton v. Mills, 73

S.W.3d 115, 120 (Tenn. Ct. App. 2001)). Thus, the trial court was entitled to rule on

Appellant’s claims pursuant to the Rule 12.02(6) standard, notwithstanding the

consideration of the Personnel Manual. Any argument that Appellant was entitled to

discovery because of the nature of summary judgment is therefore unavailing.7

7

We note that when the trial court entered its order stating that it would decide the motion to

-5-

We therefore proceed to consider whether Appellant’s complaint was properly

dismissed for failure to state a claim. As the Tennessee Supreme Court explained:

A Rule 12.02(6) motion to dismiss only seeks to determine whether

the pleadings state a claim upon which relief can be granted. Such a motion

challenges the legal sufficiency of the complaint, not the strength of the

plaintiff's proof . . . . Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). In reviewing

a motion to dismiss, the appellate court must construe the complaint

liberally, presuming all factual allegations to be true and giving the plaintiff

the benefit of all reasonable inferences. See Pursell v. First Am. Nat’l

Bank, 937 S.W.2d 838, 840 (Tenn.1996). It is well-settled that a complaint

should not be dismissed for failure to state a claim unless it appears that the

plaintiff can prove no set of facts in support of his or her claim that would

warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999);

Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848 (Tenn. 1978). Great

specificity in the pleadings is ordinarily not required to survive a motion to

dismiss; it is enough that the complaint set forth “a short and plain

statement of the claim showing that the pleader is entitled to relief.” White

v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing

Tenn. R. Civ. P. 8.01).

Trau-Med, 71 S.W.3d at 696–97. Thus, “[a] complaint ‘need not contain in minute detail

the facts that give rise to the claim,’ so long as the complaint does ‘contain allegations

from which an inference may fairly be drawn that evidence on these material points will

be introduced at trial.’” Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383,

399 (Tenn. 2002) (quoting Trau-Med, 71 S.W.3d at 725). The trial court’s decision to

grant a motion to dismiss is reviewed de novo with no presumption of correctness. Trau-

Med, 71 S.W.3d at 697.

II.

Next, we consider the issues of immunity raised by this case. Here, there is no

dispute that Hickman County is a governmental entity within the province of the

Tennessee Governmental Tort Liability Act (“TGTLA”), Tennessee Code Annotated

section 29-20-101, et seq. Section 29-20-201(a) provides that “all governmental entities

shall be immune from suit for any injury which may result from the activities of such

governmental entities wherein such governmental entities are engaged in the exercise and

discharge of any of their functions, governmental or proprietary,” except as provided by

the TGTLA. Relevant to this appeal, the TGTLA provides

dismiss “on the papers” Appellant raised no written objection and did not seek discovery. Moreover,

although Appellant raises as an issue in his brief the lack of discovery, Appellant’s brief is largely skeletal

on this issue.

-6-

a general waiver of immunity from suit for personal injury claims . . . “for

injury proximately caused by a negligent act or omission of any employee

within the scope of his employment,” unless the injury arises out of one of

several enumerated exceptions to this section, such as the intentional tort

exception. Specifically, this exception bars claims for injuries arising out of

“false imprisonment pursuant to a mittimus from a court, false arrest,

malicious prosecution, intentional trespass, abuse of process, libel, slander,

deceit, interference with contract rights, infliction of mental anguish,

invasion of right of privacy, or civil rights.” Tenn. Code Ann. § 29-20-

205(2).

Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79 (Tenn. 2001). In addition to the

intentional torts enumerated in section 29-20-205(2), the section also provides that

immunity is not waived when the injury arises out of “[m]isrepresentation by an

employee whether or not such is negligent or intentional[.]” Tenn. Code Ann. § 29-20-

205(6).

Here, several of the claims against Hickman County clearly fall within the

“intentional tort exception” to the immunity waiver, specifically Appellant’s claims for

violations of due process, intentional infliction of emotional distress, and the claims for

invasion of privacy, both intrusion on seclusion and false light. See Sallee v. Barrett, 171

S.W.3d 822, 829 (Tenn. 2005) (holding that intentional infliction of emotional distress is

encompassed in “infliction of mental anguish”). Likewise, section 29-20-205(6) clearly

provides that Hickman County retains immunity for Appellant’s claims involving

negligent and intentional misrepresentation. Although it is somewhat difficult to discern

from Appellant’s brief, it appears that Appellant is arguing that Hickman County does not

enjoy immunity where the actions of its employees were willful, wanton, or malicious,

citing Tennessee Code Annotated sections 29-20-201 and 29-20-310. Respectfully, we do

not agree.

Section 29-20-201(b)(2) provides

All members of boards, commissions, agencies, authorities, and other

governing bodies of any governmental entity, created by public or private

act, whether compensated or not, shall be immune from suit arising from

other governing body. Such immunity from suit shall be removed when

such conduct amounts to willful, wanton, or gross negligence.

(Emphasis added). Clearly, the plain language of this statute provides that immunity will

not extend to the “members” of governmental entities who act in willful, wanton, or

grossly negligent manners. Based upon this statute, we have previously held that “[l]ocal

governmental officials are not immune from suit for willful or wanton acts or acts

amounting to gross negligence.” Moore Const. Co. v. Story Eng’g Co., No. 01A01-9606-

-7-

CV-00267, 1998 WL 382198, at *4 (Tenn. Ct. App. July 10, 1998). The same is true of

section 29-20-310(c), which provides in relevant part

No claim may be brought against an employee or judgment entered against

an employee for injury proximately caused by an act or omission of the

employee within the scope of the employee’s employment for which the

governmental entity is immune in any amount in excess of the amounts

established for governmental entities in § 29-20-403, unless the act or

omission was willful, malicious, criminal, or performed for personal

financial gain, . . . .

(Emphasis added) (noting other exceptions in the health care context). Again, section 29-

20-310(c) concerns only the liability of employees. As such, this Court has previously

held that “this section [i.e. section 29-20-310(c)] has nothing to do with the county’s

liability.” Erwin v. Rose, 980 S.W.2d 203, 205 (Tenn. Ct. App. 1998) (cited favorably in

Hill v. City of Germantown, 31 S.W.3d 234, 238 (Tenn. 2000)).

Appellant has cited no caselaw wherein any Tennessee court has held that a

county’s immunity as specifically enumerated under section 29-20-205 may be removed

where an employee acts in a willful or malicious manner. Our research has revealed at

least once case that rejected a similar argument. In Autry v. Hooker, 304 S.W.3d 356

(Tenn. Ct. App. 2009), we held that an allegation that the defendant’s conduct was

willful, wanton or the product of gross negligence was not sufficient to allow waiver of

immunity for the specifically enumerated tort of intentional infliction of emotional

distress. Id. at 364. Because the governmental entity remained immune from suit, the

individual defendants who had been sued only in their official capacities were also

immune. Id. (“‘Official-capacity’ suits are in essence another way of pleading an action

against the entity represented by the individual defendant.”). Thus, allegations that the

conduct of employees was willful or wanton were not sufficient to remove immunity

either for the governmental entity or the individual defendants who were sued solely in

their official capacities. As such, we affirm the trial court’s decision that Hickman

County is immune from all claims relating to due process, intentional infliction of

emotional distress, invasion of privacy, both intrusion on seclusion and false light, and

negligent and intentional misrepresentation, regardless of whether Mayor Lawson or

other county employees acted willfully or maliciously.

The trial court also found that Hickman County was immune from suit regarding

Appellant’s claim for workplace harassment, apparently based upon the determination

that workplace harassment is an intentional tort. We note, however, that workplace

harassment is not specifically enumerated among the intentional torts for which immunity

is not removed in section 29-20-205. The Tennessee Supreme Court has previously held

that where an intentional tort is not specifically enumerated in section 29-20-205(2), the

governmental entity may still be liable for its negligent failure to prevent its employees

from committing the intentional tort. See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73,

-8-

84 (Tenn. 2001) (“[W]e hold that section 29-20-205 of the GTLA removes immunity for

injuries proximately caused by the negligent act or omission of a governmental employee

except when the injury arises out of only those specified torts enumerated in subsection

(2).”); see also Hughes v. Metro. Gov’t of Nashville & Davidson Cty., 340 S.W.3d 352,

368–69 (Tenn. 2011) (holding that in order to hold a governmental entity liable for the

intentional tort of its employee not specifically enumerated in section 29-20-205, the

plaintiff must include a “showing of negligence by the governmental entity in supervision

of one of its employees acting within the scope of employment”). The trial court

therefore erred in holding that Hickman County was completely immune from suit with

regard to this tort.8

Because Hickman County is not immune with regard to workplace harassment,

however, we must conclude that Mayor Lawson is immune from suit. In Hill v. City of

Germantown, 31 S.W.3d 234 (Tenn. 2000), this Court held that where the governmental

entity’s immunity is removed, no claim may lie as to an individual employee. Id. at 238

(“[T]he City’s immunity has been removed and Plaintiffs may recover . . . against the

City. Accordingly, no judgment may be rendered against [the individual employee].”).

Rather, only when the governmental entity is immune may the employee be sued under

the provisions of section 29-20-310(c). Here, although Hickman County can only be

liable for the damages that result from its negligence in allowing workplace harassment

to take place, discussed in detail infra, Hickman County’s immunity has been removed

with regard to this claim. See id. (noting that a limitation on damages would not affect

this analysis as immunity is “from claim or suit” not merely from damages). In this

instance, Appellant cannot rely on section 29-20-310(c) to sue Mayor Lawson in his

individual capacity.9

The same is not true, however, of Appellant’s claims regarding restitution and

indemnification. Rather, these claims are not generally considered tort claims and

therefore are not governed by the TGTLA. See Simpson v. Sumner Cty., 669 S.W.2d

657, 662 (Tenn. Ct. App. 1983) (“If the complaint is for breach of contract, express or

implied, the Tennessee Governmental Tort Claims Act has no application.”). As such,

8

We note that the trial court cited a federal opinion in support of its ruling that governmental

immunity extends to claims of workplace harassment. See Blakely v. City of Clarksville, 244 F. App'x

681, 683 (6th Cir. 2007) (dismissing the claim for workplace harassment on the basis of immunity). In the

first instance, federal opinions interpreting Tennessee law are not controlling on this Court. See Townes v.

Sunbeam Oster Co., Inc., 50 S.W.3d 446, 452 (Tenn. Ct. App. 2001) (“When a federal court undertakes

to decide a state law question . . . the state courts are not bound to follow the federal court's decision.”).

Additionally, the defendant in Blakely asserted that, in order to bring the claim in federal court, the

workplace harassment claim must have “arise[n] out of a violation of civil rights[.]” Brief for Appellant,

at 37, Blakely v. City of Clarksville (6th Cir.) (No. No. 06-5372), 2007 WL 2425448. The same is not

true in this case.

9

By the same token, because Hickman County’s immunity has been removed with regard to

Appellant’s claim for negligence, Appellant cannot sue Mayor Lawson for this claim. We note, however,

that Appellant concedes this claim on another basis.

-9-

there is no immunity to either Hickman County or Mayor Lawson with regard to these

claims.

In sum, Hickman County lacks immunity from suit with regard to the claims of

restitution and indemnification, negligence, and workplace harassment. As noted above,

in addition to the claims against Hickman County and Mayor Lawson in his official

capacity, Mayor Lawson was also named as a party in his individual capacity. Under

section 29-20-310(c), an employee of a governmental entity may be held liable for his or

her actions where: (1) the governmental entity is immune; and (2) the employee’s

conduct was “willful, malicious, criminal, or performed for personal financial gain”

Tenn. Code Ann. § 29-20-310(c); see also Hill, 31 S.W.3d at 238; Autry v. Hooker, 304

S.W.3d 356, 363 (Tenn. Ct. App. 2009) (“An individual employee of a governmental

entity is immune when the governmental entity for which he works is immune from suit,

unless the employee’s act or omission was willful, malicious, criminal, or performed for

personal financial gain.”). Appellant alleged in his complaint that all actions taken by

Mayor Lawson were willful, malicious, or performed for personal gain. Again, we take

the allegations of the complaint as true for purposes of Appellees’ motion to dismiss. See

Pursell, 937 S.W.2d at 840. Accordingly, for purposes of Appellees’ motion to dismiss,

Appellant is correct that the TGTLA does not grant immunity to Mayor Lawson for the

individual claims involving due process, intentional infliction of emotional distress,

invasion of privacy, both intrusion on seclusion and false light, and negligent and

intentional misrepresentation. Likewise, governmental immunity does not bar the claims

against Mayor Lawson related to restitution and indemnification. We will therefore

proceed to discuss each claim in the order that they were raised in Appellant’s amended

complaint.

III.

Count 1 - Due Process

We begin with Appellant’s due process claim against Mayor Lawson in his

individual capacity. Here, Appellant alleges in his complaint that he “as a public

employee, has a property right in continued employment and cannot be deprived of that

property right without due process.” In support of his assertion that he has a property

right in continued employment, Appellant cited the Grievance Procedure outlined by the

Personnel Manual, which outlines a three-step procedure wherein Hickman County

employees have “the right to present his/her grievance free from fear, interference,

restraint, discrimination, coercion, or reprisal.” Appellant notes that while he was still an

employee of Hickman County but following notice of the termination of his employment

as Emergency Management Director, Appellant requested a grievance against Mayor

Lawson. Appellant further asserts in his brief that despite his continued employment by

Hickman County, the Grievance Procedure was never followed. As such, Appellant

contends that he should be allowed to fully participate in the Grievance Procedure, at

which time he will accept the results.

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“The threshold consideration with regard to any procedural due process claim is

whether the plaintiff has a liberty or property interest that is entitled to protection[.]”

Martin v. Sizemore, 78 S.W.3d 249, 262 (Tenn. Ct. App. 2001) (citing Rowe, 938

S.W.2d at 354; Armstrong, 959 S.W.2d at 597–98). “Property interests are not created by

the federal constitution. Instead, they are created and defined ‘by existing rules or

understandings that stem from an independent source such as state law.’” Rowe, 938

S.W.2d at 354 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92

S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). Under Tennessee law, however, there is a

presumption that an employee is employed at-will. Rose v. Tipton County Pub. Works

Dep’t, 953 S.W.2d 690, 691-92 (Tenn. Ct. App. 1997). “[A]n at-will employee does not

have a legitimate entitlement to continued employment. An at-will employee has no

entitlement to his or her position and therefore no property interest to be deprived of if he

or she is summarily dismissed.” Faulkner v. City of Bartlett, No. W2008-02225-COA-

R3-CV, 2009 WL 1841743, at *4 (Tenn. Ct. App. June 29, 2009) (citing Lee v. City of

LaVergne, No. M2001-02098-COA-R3-CV, 2003 WL 1610831, at *2 (Tenn. Ct. App.

Mar. 28, 2003)).

Here, there can be no dispute that Appellant is an at-will employee. As Appellant

admits in his reply brief, the Personnel Manual so heavily relied upon to support this

claim states the following:

The County is an “at will”: employer. The county recognizes the right of

any employee to terminate his/her services with the County, at his/her will.

Likewise, the County may terminate an employee for any reason other than

discriminatory or illegal purposes. No policy, benefit, or procedure

contained herein, creates an employment contract for any period of time.

Thus, the Personnel Manual makes clear both that Appellant is an “at will” employee and

that the Grievance Procedure has no effect on the County’s ability to fire Appellant at any

time, for any non-illegal or discriminatory reason.10 Consequently, regardless of whether

Appellant requested participation in the grievance process during his employment with

Hickman County, that procedure had no effect on Hickman County’s ability to terminate

Appellant’s employment. As such, Appellant simply had no property interest in

continued employment that may be vindicated through due process. The trial court

therefore correctly dismissed this claim.

Count 2 - Indemnification and Restitution

We next address Appellant’s claims for indemnification and restitution, for which

neither Hickman County nor Mayor Lawson have immunity. In support of this claim,

10

We note that Appellant does not allege in his amended complaint that the termination of his

employment was based upon discrimination or was otherwise illegal pursuant to applicable law. Rather

the only alleged illegality even mentioned by Appellant in his amended complaint involves Appellant’s

claim of negligence, which is discussed infra.

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Appellant’s amended complaint alleges that Mayor Lawson offered to create a new job

for Appellant at a lower salary, as well as provide Appellant’s wife, who was also a

Hickman County employee, a raise. Likewise, Appellant again asserts that he

unsuccessfully attempted to participate in the Grievance Procedure. When neither the

promised position was created for Appellant, nor the Grievance Procedure followed,

Appellant asserts that he incurred expenses and pecuniary losses in attempting to enforce

the promises made to him. Appellant finally alleged that Mayor Lawson’s actions on

behalf of Hickman County should have been reasonably expected to induce action or

forbearance on Appellant’s part and that the contract should be enforced against

Appellees.

As an initial matter, we must discuss the state of Appellant’s brief with regard to

Appellant’s claim for indemnification. Rule 27 of the Tennessee Rules of Appellate

Procedure governs the contents of briefs to this Court and specifically requires that an

appellant’s brief contain an argument setting forth “the contentions of the appellant with

respect to the issues presented, and the reasons therefor, including reasons why the

contentions require appellate relief, with citations to the authorities and appropriate

references to the appellate record (which may be quoted verbatim) relied on[.]” Tenn. R.

App. P. 27(a)(7). Appellant, however, cites no law of any kind to support his claim for

indemnification against Hickman County and Mayor Lawson.

Tennessee courts have repeatedly held that where a party raises an issue, but fails

to argue that issue in the body of its appellate brief, “fails to develop an argument in

support of [its] contention[,] or merely constructs a skeletal argument, the issue is

waived.” Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615

(Tenn. 2010). Indeed, it is simply “not the role of the courts, trial or appellate, to . . .

construct a litigant’s case or arguments for him or her[.]” Id.; see also Nunn v.

Tennessee Dep’t of Correction, No. M2016-01518-COA-R3-CV, 2017 WL 4776748, at

*31 (Tenn. Ct. App. Oct. 23, 2017) (quoting Waters v. Farr, 291 S.W.3d 873, 919 (Tenn.

2009) (Koch, J., concurring in part and dissenting in part) (“Parties must thoroughly brief

the issues they expect the appellate court to consider.”)). Here, Appellant fails to

illuminate in his brief how the actions of either Hickman County or Mayor Lawson

specifically entitle him to a claim for indemnification. In the absence of a properly

supported appellate argument on this claim, we will not address it. The trial court’s

decision to dismiss Appellant’s claim for indemnification against both Hickman County

and Mayor Lawson is therefore affirmed.

Appellant’s argument with regard to restitution in his initial brief is largely no

better—no relevant authority is cited in Appellant’s initial brief in support of his

contention that the trial court erred in dismissing this claim. Although reply briefs are not

substitutes for initial briefs, we note that Appellant does cite some authority to support

his restitution claim in his reply brief. See Adler v. Double Eagle Properties Holdings,

LLC, No. W2014-01080-COA-R3-CV, 2015 WL 1543260, at *6 (Tenn. Ct. App. Apr. 2,

2015), perm. app. denied (Tenn. Aug. 13, 2015) (“[A] reply brief simply is not a

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substitute for an initial brief to this Court.”); Owens v. Owens, 241 S.W.3d 478, 499

(Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(c)) (“A reply brief is a response to the

arguments of the appellee. It is not a vehicle for raising new issues.”). Regardless, we

conclude that that this claim likewise fails. As we perceive it, Appellant is essentially

arguing that the Grievance Procedure created an implied contract that was enforceable

against Hickman County and Mayor Lawson.11 We do not agree. In the main case cited

by Appellant in support of this argument, Graves v. Anchor Wire Corp. of Tennessee,

692 S.W.2d 420 (Tenn. Ct. App. 1985), the plaintiff also argued that an employee

handbook created an implied contract that modified her employment “at will” status. Id.

at 422. The court rejected that contention, holding that, even assuming that the employee

handbook created an implied contract, nothing in the contract modified the plaintiff’s

employment “at will” status. Id. The Court noted that it had previously considered

employee handbooks as creating an implied contract with regard to the retention of

certain benefits that were unrelated to termination. Id. (citing Hamby v. Genesco, Inc.,

627 S.W.2d 373 (Tenn. Ct. App. 1981) (involving a claim not related to termination of

“at-will” employment)). In the termination context, however, where there is no definite

term of employment within even the implied contract, the “at will” employment doctrine

applies and the employee may be terminated at any time and for any reason. Id.

The same is true in this case: Appellant is undisputedly an “at will” employee and

nothing in the Grievance Procedure creates an implied contract that negates his “at will”

status. In fact, unlike in Graves, the Personnel Manual goes further to specifically state

that none of the procedures contained therein affect Hickman County’s ability to

terminate its employees at any time and for any non-discriminatory reason. As we have

previously explained:

In order to constitute a contract, however, the handbook must contain

specific language showing the employer’s intent to be bound by the

handbook’s provisions. Smith v. Morris, 778 S.W.2d at 858. Unless an

employee handbook contains such guarantees or binding commitments, the

handbook will not constitute an employment contract. Whittaker v. Care-

More, Inc., 621 S.W.2d 395, 397 (Tenn. App. 1981). As stated by one

court, in order for an employee handbook to be considered part of an

11

In his brief, Appellant also briefly references Mayor Lawson’s alleged promise to create a new

position for Appellant, which was raised as a basis for an implied contract in Appellant’s amended

complaint. After fully reviewing Appellant’s initial brief and reply brief, it is clear that Appellant’s legal

argument on appeal is based upon the Grievance Procedure, rather than the alleged promise. For example,

Appellant states in his initial brief that “regardless of whether [] Appellant accepted the new position . . . ,

[] Appellant is entitled [to] a grievance hearing.” In his reply brief, Appellant further states that he “is

simply looking to be restored to the position he was in, which is one in which he is entitled to a

grievance.” Although Appellees discuss in their brief implied-in-fact and implied-in-law contracts with

regard to the alleged promise of future employment, Appellant does not raise these issues in his own

briefs and he cites no law to support claims under these theories. As such, any argument that the alleged

promise created an implied contract is waived. See Sneed, 301 S.W.3d at 615.

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employment contract, “the language used must be phrased in binding terms,

interpreted in the context of the entire handbook, and read in conjunction

with any other relevant material, such as an employment application.”

Claiborne v. Frito-Lay, Inc., 718 F.Supp. 1319, 1321 (E.D.Tenn. 1989).

Rose v. Tipton Cty. Pub. Works Dep’t, 953 S.W.2d 690, 692 (Tenn. Ct. App. 1997),

holding modified by Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677 (Tenn. Ct. App.

1999) (holding that while it is generally true that “an employer’s reservation of a

unilateral right to modify the provisions of its employee handbook generally precludes

the handbook from being considered part of the parties’ employment contract,” that rule

will not apply where the handbook contains “unequivocal language demonstrating its

intent to be bound by the handbook’s provisions”). Given that the Personnel Manual

specifically states that the procedures granted to employees therein would not alter their

“at will” employment status, we cannot conclude that the Personnel Manual’s Grievance

Procedure creates an enforceable promise that trumps Hickman County’s undisputed

right to terminate Appellant’s employment “at will.” As such, the Grievance Procedure

offers Appellant no remedy in this case. The trial court therefore did not err in dismissing

this claim against both Hickman County and Mayor Lawson.

Count 3- Negligence

Although Appellant concedes that the trial court correctly dismissed his claims

against Mayor Lawson sounding in negligence, Appellant asserts that the trial court

incorrectly dismissed his negligence claim against Hickman County. Having thoroughly

reviewed Appellant’s brief on this claim, we must conclude that this argument is waived.

Here, Appellant’s initial brief to this Court contains the following argument concerning

Appellant’s negligence claim against Hickman County: “The trial court determined that

Hickman County was immune, for reasons discussed hereinabove, the Appellant

respectfully disagrees and asks this Court to remand this cause to the trial court to

conduct discovery and to set for a full and final hearing on the merits.” Neither references

to the record nor any citations to legal authority are included in Appellant’s argument on

this issue. Moreover, the trial court did not rule that Hickman County was immune from

suit with regard to Appellant’s negligence claim, but ruled that the claim failed due to

lack of standing and lack of duty. As such, we must conclude that Appellant’s argument

is completely non-responsive to the actual issue on appeal with regard to this claim.

We note that, like Appellant’s restitution argument, Appellant’s argument with

regard to negligence is more fully set forth in Appellant’s reply brief. As we noted above,

however, deficiencies in initial briefs may not be corrected in reply briefs. Withers v.

Withers, No. W2016-01663-COA-R3-CV, 2018 WL 625119, at *2 n.2 (Tenn. Ct. App.

Jan. 30, 2018). In reaching this result, we held that to do so would be unfair because the

appellee may have no opportunity to respond. Id. (citing Denver Area Meat Cutters &

Emp’rs Pension Plan v. Clayton, 209 S.W.3d 584, 594 (Tenn. Ct. App. 2006) (holding

that permitting an appellant to advance new arguments in a reply brief not addressed in

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the initial brief “would be fundamentally unfair as the appellee may not respond to a

reply brief.”). Here, Appellant’s initial brief is not merely somewhat deficient, but

completely devoid of argument responsive to the trial court’s decision in this case. As

noted above, skeletal arguments are insufficient to preserve issues on appeal. Sneed, 301

S.W.3d at 615 (Tenn. 2010). Under these circumstances, we conclude that any argument

that the trial court erred in dismissing Appellant’s negligence claim against Hickman

County is waived. The trial court therefore did not err in dismissing this claim.

Count 4 - Invasion of Privacy: Intrusion on Seclusion

We next consider Appellant’s assertion that the trial court erred in dismissing his

claim against Mayor Lawson for invasion of privacy based upon intrusion on seclusion.

In support of this claim, Appellant alleged in his amended complaint that Appellant

suffered objectionable intrusions into his private concerns by Mayor Lawson and the

County Attorney when Appellant’s “personal and privileged attorney correspondence

between [Appellant’s] counsel and [the County Attorney] were made part of the County’s

public record[.]”

The Tennessee Supreme Court has outlined the elements of the tort of intrusion on

seclusion as follows:

Because a plaintiff cannot seek damages for intrusion into seclusion when

he or she is required to make the allegedly private information available for

public inspection, a plaintiff must allege and prove the following essential

elements: (1) that the information sought by the opposing party was not

properly discoverable or was otherwise subject to some form of privilege;

(2) that the opposing party knew that the information was not discoverable

or was subject to privilege, but nevertheless proceeded to obtain that

information; (3) that the obtaining of such information would be highly

offensive to a reasonable person; and (4) that injury was suffered from the

invasion of privacy.

Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 412 (Tenn. 2002).

Despite the Tennessee Supreme Court’s pronouncement in 2002, Appellant appears to

make a somewhat puzzling argument that this Court should instead apply the analysis

from a Tennessee Court of Appeals decision in 2000, which cites the Restatement

(Second) of Torts. See Roberts v. Essex Microtel Assocs., II, L.P., 46 S.W.3d 205, 211

(Tenn. Ct. App. 2001) (citing Restatement (Second) of Torts § 652B). This Court is

simply not permitted to deviate from the unequivocal holdings of our supreme court.

“The Court of Appeals has no authority to overrule or modify Supreme Court’s

opinions.” Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789 (Tenn. 1968)

(citing City of Memphis v. Overton, 54 Tenn.App., 419, 392 S.W.2d 86 (Tenn. 1964));

Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976). As such, “[o]nce the Tennessee

Supreme Court has addressed an issue, its decision regarding that issue is binding on the

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lower courts.” Morris v. Grusin, No. W2009-00033-COA-R3-CV, 2009 WL 4931324, at

*4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-02312-COA-R3-

CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004)). Thus, we apply the

elements of intrusion on seclusion as outlined by our supreme court. We note, however,

that the Givens court cited both our decision in Roberts and the Restatement (Second) of

Torts favorably with regard to the definition of this tort. See Givens, 75 S.W.3d at 411–

12 (citing both Roberts and the Restatement for the definition of the tort). As such, we are

unsure how application of the holding in Roberts would result in a more favorable

outcome in this particular case.

In any event, applying the elements as outlined by the Tennessee Supreme Court

in Givens, we agree with the trial court that Appellant has failed to establish a prima facie

case of intrusion on seclusion. As noted above, an essential element of intrusion on

seclusion is that “the information sought by the opposing party was not properly

discoverable or was otherwise subject to some form of privilege[.]” Givens, 75 S.W.3d at

412; see also Restatement (Second) of Torts § 652B, cmt. c (1977) (“The defendant is

subject to liability under the rule stated in this Section only when he has intruded into a

private place, or has otherwise invaded a private seclusion that the plaintiff has thrown

about his person or affairs. Thus there is no liability for the examination of a public

record concerning the plaintiff, or of documents that the plaintiff is required to keep and

make available for public inspection.”). Here, the information alleged to have been

improperly publicized was correspondence between Appellant’s attorney and the County

Attorney. Appellant appears to contend that this information was not discoverable

because of a claim of attorney-client privilege. Respectfully, we cannot agree.

As we have previously explained,

The attorney-client privilege “belongs” to the client. Smith County Educ.

Ass'n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984); State v. Parker,

932 S.W.2d 945, 955 (Tenn.Crim.App.1996). Accordingly, a client may

waive the privilege either by communicating in the presence of others who

are not bound by the privilege, Hazlett v. Bryant, 192 Tenn. at 257, 241

S.W.2d at 123, or by voluntarily divulging the communication to third

parties. Taylor v. State, 814 S.W.2d 374, 377 (Tenn.Crim.App.1991).

Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App. 2002) (footnote

omitted). Here, the alleged information was communicated not solely between Appellant

and his attorney, but between Appellant’s counsel and the County Attorney. The fact that

this communication was “voluntarily divulge[ed]” to a third party defeats any claim of

privilege. Because Appellant fails to establish another privilege or reason that

information communicated to a county attorney by his attorney could not be

communicated to county officials, we affirm the trial court’s decision that Appellant’s

amended complaint, even if taken as true, fails to establish a prima facie case for invasion

of privacy based upon intrusion on seclusion.

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Count 5 - Invasion of Privacy – False Light

Appellant next asserts that the trial court erred in dismissing his false light claim

against Mayor Lawson. In his amended complaint, Appellant alleged that Appellees

“falsely represented to the County Commission, and ultimately to the people of Hickman

County, that [Appellant] engaged in inappropriate conduct by allegedly claiming “comp

time” on his final paycheck as Director, when, in fact, [Appellant] did nothing more than

follow County policy.” Specifically, the amended complaint contains the following

allegations:

134. Inexplicably in September 2015, [Mayor Lawson [] and [the County]

Attorney [] launched into another scheme to further tarnish [Appellant’s]

reputation by claiming [Appellant] had inappropriately “taken a lot of

money out the door” by allegedly claiming compensatory time [i.e. comp

time] during his employ as Director and on [Appellant’s] final paycheck as

Director.

135. Even though, [Mayor Lawson] said publicly he wasn’t accusing

anyone of anything, it was clear he insinuated [Appellant] engaged in

inappropriate behavior tantamount to theft from the County.

Appellant contended that these statements depicted him “as something or someone that

he is not.” Finally, as noted above, the amended complaint alleged that all of Mayor

Lawson’s conduct was performed “maliciously[.]”

In 2001, the Tennessee Supreme Court first recognized the tort of false light

invasion of privacy. See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 641

(Tenn. 2001). The court defined the tort as

One who gives publicity to a matter concerning another that places the

other before the public in a false light is subject to liability to the other for

invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive

to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which the other would

be placed.

Id. at 643–44.12 Where the claim involves either a public figure or a matter of public

concern, the actual malice standard is applicable. Id. at 648. Where the actual malice

12

We note that, despite the trial court’s interpretation of the tort, the court in West did not state

that the plaintiff was required to show that a duty was owed to him, unlike in a negligence case. See

generally Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citing McCall v. Wilder,

- 17 -

standard applies, the “burden is upon plaintiff to show with ‘convincing clarity’ the facts

which make up the ‘actual malice.’” Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69,

75 (Tenn. Ct. App. 1986). The parties do no dispute for purposes of this appeal that the

actual malice standard is applicable.

Mayor Lawson first contends that the trial court correctly dismissed this claim

because the statement made by him “is not something that can be proven demonstrably

false[.]” This Court has previously held however, that “[l]iteral truth is not . . . a defense

in a false light claim[.]” Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389

S.W.3d 313, 317 (Tenn. Ct. App. 2012). Rather,

The facts may be true in a false light claim. However, the angle from which

the facts are presented, or the omission of certain material facts, results in

placing the plaintiff in a false light. “‘Literal accuracy of separate

statements will not render a communication “true” where the implication of

the communication as a whole was false.’ . . . The question is whether [the

defendant] made ‘discrete presentations of information in a fashion which

rendered the publication susceptible to inferences casting [the plaintiff] in a

false light.’” Santillo v. Reedel, 430 Pa.Super. 290, 634 A.2d 264, 267

(1993) (citing Larsen v. Philadelphia Newspapers, Inc., 375 Pa.Super. 66,

543 A.2d 1181 (1988)) (emphasis added). Therefore, the literal truth of the

publicized facts is not a defense in a false light case.

West, 53 S.W.3d at 645 n.5. Consequently, “the falsehood involved in a false light action

‘may consist in dissemination of matters which, while technically true, give an

objectionably false impression where the communicator fails to modify the basic

statement with amplifying facts which modify the statement to create a less objectionable

impression corresponding to full reality.’” Eisenstein v. WTVF-TV, News Channel 5

Network, LLC, 389 S.W.3d 313, 318 (quoting Russell G. Donaldson, Annotation, False

Light Invasion of Privacy-Cognizability and Elements, 57 A.L.R.4th 22, § 13 (Cum.

Supp. 2012)). As such, that the information provided by Mayor Lawson be proven

demonstrably false is not necessary to maintain Appellant’s claim for false light invasion

of privacy.

Mayor Lawson next asserts that the trial court correctly dismissed this claim on

the basis that Appellant failed to establish that Mayor Lawson acted knowingly and

recklessly when making the alleged statement to the County Commission. As pointed out

by Appellant, however, a false light claim does not require that the tortfeasor act

knowingly or recklessly, but that the tortfeasor “had knowledge of or acted in reckless

disregard as to” the false impression created by his statement. West, 53 S.W.3d at 643–

44. Moreover, as we have discussed before, the amended complaint states that, at all

913 S.W.2d 150, 153 (Tenn. 1995)) (stating that a duty of care is an essential element to a negligence

case).

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times, Mayor Lawson acted willfully and maliciously. Mayor Lawson contends, however,

that Appellant’s allegations “lack [the] ‘convincing clarity’” required to make out a false

light claim. We agree that this Court has held that a plaintiff cannot survive a motion for

summary judgment on the issue of actual malice unless the plaintiff can meet his burden

to show with “‘convincing clarity’ . . . facts from which malice may be inferred.” Lewis

v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 283 (Tenn. Ct. App. 2007) (quoting

Trigg, 720 S.W.2d at 74). Such a showing is not required at the motion to dismiss stage,

where we take the allegations in the complaint as true.

Here, giving Appellant’s amended complaint all reasonable inferences, Appellant

alleges that Mayor Lawson made one or more statements insinuating that Appellant

improperly appropriated money from Hickman County following the termination of his

employment. These statements were made public at a County Commission meeting.

Appellant further asserts that this insinuation was not correct and that it placed Appellant

in a false and offensive light. Courts outside our jurisdiction have held that false

insinuations regarding theft during employment could support a claim for false light

invasion of privacy. See Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634

(2002) (affirming a jury verdict finding the defendant guilty of false light invasion of

privacy based upon allegations that the plaintiff was a thief). Appellant finally asserts that

Mayor Lawson’s actions were malicious and willful. Taking these allegations as true and

giving the complaint all reasonable inferences, we conclude that the amended complaint

makes out a prima facie claim for false light invasion of privacy. The trial court’s

decision to dismiss this claim against Mayor Lawson is therefore reversed.

Mayor Lawson asserts, however, that the trial court was entitled to dismiss this

claim on another basis—legislative immunity. Although this argument was raised in the

trial court, Mayor Lawson concedes that the trial court did not address it. Generally, this

Court does not decide issues that were not first decided by the trial court. See In re

Adoption of E.N.R., 42 S.W.3d 26, 31–32 (Tenn. 2001) (holding that courts “are limited

in authority to the adjudication of issues that are presented and decided in the trial

courts”); Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a court of appeals

and errors, and we are limited in authority to the adjudication of issues that are presented

and decided in the trial courts . . . .”); Hayes v. City of Memphis, No. W2014-01962-

COA-R3-CV, 2015 WL 5000729, at *10 (Tenn. Ct. App. Aug. 21, 2015) (citing Copper

Basin Fed. Credit Union v. Fiserv Sols., Inc., No. E2012-02145-COA-R3-CV, 2013 WL

3421916, at *5 (Tenn. Ct. App. July 3, 2013)) (“Even though this issue was raised at the

trial court level, we cannot fully analyze this issue because the trial court did not consider

or rule on it.”). As such, we will not address this argument in this appeal.

Count 6 - Intentional Infliction of Emotional Distress

We next consider whether the trial court erred in dismissing Appellant’s claim for

intentional infliction of emotional distress against Mayor Lawson. In support of this

claim, Appellant alleged in his amended complaint that Appellees intentionally or

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recklessly committed extreme and outrageous conduct that caused severe emotional

distress to Appellant. Specifically, Appellant cited as the outrageous conduct in this case

Appellees’ decision to terminate Appellant’s employment after twenty-six years of

service, replacing him with an inferior candidate, offering Appellant a job that was not

funded and did not come to fruition, and continuously harassing Appellant by insinuating

that Appellant stole from Hickman County.

In order to make out a prima facie case of intentional infliction of emotional

distress, the plaintiff must show “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)).

Here, Mayor Lawson argues that Appellant’s amended complaint fails to allege facts

sufficient to meet the second requirement—outrageous conduct. We agree.

In order to recover for intentional infliction of emotional distress, the plaintiff

must show that the defendant’s conduct was “so outrageous that it is not tolerated by

civilized society.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1998) (citing Medlin v.

Allied Inv. Co., 217 Tenn. 469, 479, 398 S.W.2d 270, 274 (Tenn. 1966), overruled on

other grounds by Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996))). “A plaintiff's

burden to demonstrate outrageous conduct ‘is not an easy burden to meet.’” Weaver v.

Pardue, No. M2010-00124-COA-R3-CV, 2010 WL 4272687, at *5 (Tenn. Ct. App. Oct.

28, 2010) (quoting Oates v. Chattanooga Pub. Co., 205 S.W.3d 418, 428 (Tenn. Ct. App.

2006)). Outrageous conduct “‘does not extend to mere insults, indignities, threats,

annoyances, petty oppression or other trivialities.’” Bain, 936 S.W.2d at 622 (quoting

Medlin, 398 S.W.2d at 274). “[I]t is the court’s duty in the first instance to apply that

standard and determine ‘whether the defendant’s conduct may reasonably be regarded as

so extreme and outrageous as to permit recovery. . . .’” Bain, 936 S.W.2d at 623 (quoting

Medlin, 398 S.W.2d at 275). As our supreme court has explained:

“The 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 in character, and so

extreme in degree, as to go beyond all 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 resentment against the actor,

and lead him to exclaim, ‘Outrageous.’”

- 20 -

Bain, 936 S.W.2d at 622–23 (quoting Medlin, 398 S.W.2d at 274 (quoting Restatement

(Second) of Torts § 46 cmt. d (1965))). In recent cases, Tennessee courts have held that

allegations of doctor-patient sexual assault, Weaver, 2010 WL 4272687, at *6, forcing a

victim to witness attempted murder and suicide, Lourcey v. Estate of Scarlett, 146

S.W.3d 48, 52 (Tenn. 2004), failure to report or investigate known sexual abuse, Doe 1

ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005),

and treating human remains in an improper manner, Akers v. Prime Succession of

Tennessee, Inc., 387 S.W.3d 495, 504 (Tenn. 2012), were sufficient to meet the

outrageous conduct standard at least at the motion to dismiss stage. In contrast, however,

we have declined to deem conduct outrageous when it involved comments made by an

assistant district attorney that a defendant was a “bitch,” Odom v. Claiborne Cty.,

Tennessee, 498 S.W.3d 882, 887 (Tenn. Ct. App. 2016), perm. app. denied (Aug. 18,

2016), racial discrimination by a pizza delivery company, Arnett v. Domino’s Pizza I,

L.L.C., 124 S.W.3d 529, 540 (Tenn. Ct. App. 2003), and comments that the plaintiff had

performed a “money switch” and threatening to call police to investigate. See Brown v.

Mapco Exp., Inc., 393 S.W.3d 696, 704 (Tenn. Ct. App. 2012).

The conduct alleged to be outrageous in this case falls far closer to the type of

conduct that we have previously held was insufficient to constitute outrageous conduct

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

facts in this case most closely align with the facts in Brown v. Mapco, wherein the clerk

of a convenience store accused the plaintiff of “tryna do a money switch,” which the

plaintiff characterized as an allegation of criminal activity. Id. at 709. We held, however,

that these allegations “fall[] squarely within the realm of ‘mere insults, indignities,

threats, annoyances, petty oppression or other trivialities[]’” for which there is no

recovery in intentional infliction of emotional distress. Id. at 704 (quoting Bain, 936

S.W.2d at 622). Here, Appellant was clearly insulted by Appellees’ decision to terminate

his employment after decades of service. That decision and the alleged comments that

followed, even if taken as true, simply do not constitute the type of outrageous conduct

for which Appellant may recover in an intentional infliction of emotional distress claim.

As such, the trial court did not err in dismissing this claim against Mayor Lawson.

Count 7 – Work Place Harassment

Appellant next asserts that the trial court erred in dismissing his claim for

workplace harassment. As previously discussed, the trial court erred in ruling that

Hickman County enjoyed complete governmental immunity with regard to this claim. In

order to prevail on this claim, however, Appellant’s complaint must include “‘a direct

showing [of] negligence on the part of the governmental entity.’” Hughes v. Metro. Gov't

of Nashville & Davidson Cty., 340 S.W.3d 352, 368–69 (Tenn. 2011) (quoting

Pendleton v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2004-01910-COA-R3-

CV, 2005 WL 2138240, at *3 (Tenn. Ct. App. Sept. 1, 2005)). Consequently, Appellant’s

claim cannot survive Appellees’ motion to dismiss without some allegations “of

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negligence by the governmental entity in supervision of one of its employees acting

within the scope of employment.” Hughes, 340 S.W.3d at 369.

Here, Appellant’s amended complaint contains the following allegations related to

this claim:

213. [Appellant] suffered workplace harassment as a result of the tangible

employment action taken by [Mayor Lawson].

214. [Mayor Lawson] was [Appellant’s] supervisor and had the authority to

undertake or recommend tangible employment actions affecting the

Plaintiff, and was, in fact, was [Appellant’s] direct supervisor.

215. [Appellees’] action of firing the Plaintiff is a tangible employment

action, as it required an official act by [Appellees], was documented in

County records, was (or at least should have been) subject to review by the

County Commission, required [Mayor Lawson’s] approval, and inflicted

direct economic harm to [Appellant].

Even taking these allegations as true, they simply do not contain any allegations of direct

negligence on the part of Hickman County. Indeed, from a review of Appellant’s

amended complaint, there are no allegations that Hickman County had the authority but

failed to supervise Mayor Lawson, nor are there any other allegations of direct negligence

against Hickman County with regard to Appellant’s allegations of workplace harassment.

Moreover, we note once again that Appellant’s brief on this issue is largely

deficient. For example, Appellant cites no law in his initial brief in support of his

contention that this claim should survive Appellees’ motion to dismiss other than a

conclusory citation to a rule of civil procedure. Again, Appellant attempts to expand upon

his deficient presentation in his reply brief by pointing out Hickman County’s harassment

policy cited in the Personnel Manual. See Adler v, 2015 WL 1543260, at *6 (holding that

this practice is inappropriate). We note, however, that this policy was not cited in

Appellant’s complaint or amended complaint, but rather was first included in an exhibit

to Appellees’ motion to dismiss.13 Finally, although Appellant does cite a single case in

his reply brief to support this claim, the cited case does not support Appellant’s

contention that a stand-alone workplace harassment claim is created by the Personnel

Manual. See King v. TFE, Inc., 15 S.W.3d 457, 460 (Tenn. Ct. App. 1999) (holding that

the specific language of the employee handbook evinced an intent not to be bound by the

provisions therein; not involving workplace harassment). Under the totality of the

circumstances, we conclude that dismissal of this claim is appropriate.

Count 8– Intentional Misrepresentation

13

Curiously, Appellant wishes to cite this portion of the Personnel Manual in support of his

claims despite not being included in his complaint pursuant to Rule 10.03, while depriving Appellees’ of

the ability to rely on the remainder of the Personnel Manual in their motion to dismiss.

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We next address Appellant’s claim for intentional misrepresentation against

Mayor Lawson. Here, Appellant alleges in his amended complaint that

218. [Appellees] made a representation directly to [Appellant] that he

would have a job as a Communication Tech, earning a salary of $45,000

per year and that [Appellant’s] wife would also receive a raise, at the

conclusion of [Appellant’s] tenure as Director.

219. Additionally, [Mayor Lawson] made the claim to [the County] Finance

Director, that [Appellant] was having an extramarital relationship with his

co-worker[.]

220. This fact was a material fact and the representation made by

Defendants was false.

221. Because [Mayor Lawson] did not have the approval of the County

Commission, [Appellees] knew that the representation was false when it

was made or [Appellees] made the representation recklessly without

knowing whether it was true or false.

222. [Mayor Lawson] was without sufficient information to know whether

the alleged affair did or did not occur and spoke to [the County Finance

Director] without any regard to the truth.

223. [Mayor Lawson] intended that the [Appellant] rely upon the

representation and [Appellant] steadfastly maintains his relationship with

[the co-worker] was nothing more than a working relationship and any

insinuation otherwise is high offensive and inflammatory.

224. [Appellant] did not know, until the Salary and Benefits Committee

Meeting on January 12, 2015, that the representation was false and until

that time [Appellant] was justified in relying upon the truth of the

representation made by [Mayor Lawson].

According to Appellant’s recitation of facts in his amended complaint, when informing

Appellant that a new “job was going to be created,” Mayor Lawson “stated he had

already convinced some County Commissioners the position was going to be created for

[Appellant]” and detailed the salary for the position. Appellant’s amended complaint

specifically quotes Mayor Lawson as informing Appellant that “I’m going to fight to get

you some more money and her a raise.” According to the complaint, although Mayor

Lawson did in fact present a proposal to create a position for Appellant to the County

Commission, the County Commission “advised Mayor Lawson there was no salary

available and the committee did not identify alternative funds that could be used.” The

issue was never revisited by the County Commission. In other parts of his amended

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complaint, Appellant describes Mayor Lawson’s statement regarding the anticipated job

as a “promise[.]”

In order to prevail on a claim for intentional misrepresentation, the plaintiff must

show

(1) that the defendant made a representation of a present or past fact; (2)

that the representation was false when it was made; (3) that the

representation involved a material fact; (4) that the defendant either knew

that the representation was false or did not believe it to be true or that the

defendant made the representation recklessly without knowing whether it

was true or false; (5) that the plaintiff did not know that the representation

was false when made and was justified in relying on the truth of the

representation; and (6) that the plaintiff sustained damages as a result of the

representation.

Hodge v. Craig, 382 S.W.3d 325, 343 (Tenn. 2012) (citing Walker v. Sunrise Pontiac-

GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn. 2008)). Thus, “in order for a fraudulent

misrepresentation to be actionable, it must consist of a statement of an existing or past

material fact, made with knowledge of its falsity or with reckless disregard of the truth.”

Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn. 1978).

We begin with Appellant’s claim that Mayor Lawson made a false statement that

Appellant was engaging in an extra-marital affair, which Appellant asserts falls within

the auspices of the tort of intentional misrepresentation. Here, the trial court dismissed

this claim on the basis that Appellant failed to show how he justifiably relied upon this

alleged misrepresentation. We agree. “Justifiable reliance is a necessary element in a

cause of action based upon [intentional] misrepresentation.” McNeil v. Nofal, 185

S.W.3d 402, 409, 411 (Tenn. Ct. App. 2005) (noting that this element is “indispensable”).

The burden is on the plaintiff to show reasonable reliance. Johnson v. Dattilo, No.

M2010-01967-COA-R3-CV, 2011 WL 2739643, at *8 (Tenn. Ct. App. July 14, 2011)

(citing McNeil, 185 S.W.3d at 409). Appellant’s complaint contains only a conclusory

assertion that Mayor Lawson intended that Appellant “rely upon the representation” that

Appellant was having an extra-marital affair, but does not assert that Appellant actually

relied upon that statement to his detriment. Although we note that complaints need not

contain factual allegations “in minute detail,” the complaint must contain allegations

“‘from which an inference may fairly be drawn that evidence on these material points

will be introduced at trial.’” Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d

383, 399 (Tenn. 2002). Here, in the absence of more specific details, it is difficult to

discern how Appellant could have justifiably relied upon a statement that he was having

an affair, when he asserts that the statement is categorically false, an alleged truth that he

was fully aware of at the time the statement was allegedly made. In the absence of more

specific allegations to illuminate this claim, we must conclude that the trial court did not

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err in ruling that Appellant’s complaint fails to allege sufficient facts to show justifiable

reliance with regard to this alleged statement.

We next consider allegations related to Mayor Lawson’s offers of employment,

specifically Mayor Lawson’s statements regarding (1) creation and funding of a new job

by Hickman County; (2) the hiring of Appellant to fill the newly created position; and (3)

a raise for Appellant’s wife. From our review of Appellant’s allegations, none indicate

that Mayor Lawson misstated a past or present fact as required to make out a claim for

intentional misrepresentation. Rather, from our review, the statements alleged to have

been false involve Mayor Lawson’s intention to take future action to create a new job for

Appellant and obtain a raise for Appellant’s wife. In a similar situation, this Court has

held that “plans, expectations, and intentions concerning future hiring” do not constitute

statements of existing or past fact necessary to sustain a claim for intentional

misrepresentation. Henley v. Labat-Anderson, Inc., No. 03A01-9104-CV-126, 1991 WL

120403, at *2 (Tenn. Ct. App. July 9, 1991).

We note, however, that future promises may sustain a claim for promissory fraud.

Following a pronouncement by the Tennessee Supreme Court that it would adopt the

majority view allowing claims of promissory fraud “in a proper case where justice

demands[,]” this Court has considered the tort on a number of occasions. Id. at *3

(quoting Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn. 1978) (applying

the majority rule but concluding that the facts did not support the promissory fraud claim)

(quoting Bolan v. Caballero, 220 Tenn. 318, 326, 417 S.W.2d 538, 541 (Tenn. 1967)

(first recognizing the possible viability of the tort))); see, e.g., Isaac v. Ctr. For Spine,

Joint, & Neuromuscular Rehab., P.C., No. M2010-01333-COA-R3-CV, 2011 WL

2176578, at *6 (Tenn. Ct. App. June 1, 2011) (applying the majority view); Houghland

v. Houghland, No. M2005-01770-COA-R3-CV, 2006 WL 2080078, at *3 (Tenn. Ct.

App. July 26, 2006) (outlining the elements of promissory fraud as: “(1) an intentional

misrepresentation of a fact material to the transaction; (2) knowledge of the statement’s

falsity or utter disregard for its truth; (3) an injury caused by reasonable reliance on the

statement; and (4) a promise of future action with no present intent to perform.”); Keith v.

Murfreesboro Livestock Mkt., Inc., 780 S.W.2d 751, 754 (Tenn. Ct. App. 1989)

(discussing the tort); Farmers & Merchants Bank v. Petty, 664 S.W.2d 77, 80–81 (Tenn.

Ct. App. 1983) (same); Brungard v. Caprice Records, Inc., 608 S.W.2d 585, 590 (Tenn.

Ct. App. 1980) (opining that the Tennessee Supreme Court would follow the majority

rule with regard to claims of promissory fraud). In those cases, we have held that

recovery is limited “to those cases where the statement of intention is shown to be false

when made (i.e., a misrepresentation of actual present intention) by evidence other than

subsequent failure to keep the promise or subjective surmise or impression of the

promisee.” Farmers, 664 S.W.2d at 80–81; see also Keith, 780 S.W.2d at 754 (holding

that in order to establish promissory fraud, the statement “must embody a promise of

future action without the present intention to carry out the promise”). Additionally, “[i]t

is essential to recognize that, in the context of a claim of promissory fraud, ‘the mere fact

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that the promisor failed to perform the promised act is insufficient by itself to prove

fraudulent intent.’ This is because . . . ‘not every broken promise starts with a lie.’” Isaac

v, 2011 WL 2176578, at *6 (quoting Styles v. Blackwood, No. E2007-00416-COA-R3-

CV, 2008 WL 5396804, at *7 (Tenn. Ct. App. Dec. 29, 2008)).

Despite the fact that Appellant characterizes Mayor Lawson’s statements as

“promises” in the amended complaint, Appellant has failed to argue that this claim

constitutes a claim for promissory fraud. From our review, promissory fraud was not

raised in the trial court, in Appellant’s initial brief, or even in Appellant’s reply brief.

Rather, Appellant asserts that Mayor Lawson’s “job offer” was a statement of existing

fact sufficient to meet the requirements of intentional misrepresentation. Generally,

arguments that are not raised in the trial court or on appeal are waived. Dye v. Witco

Corp., 216 S.W.3d 317, 321 (Tenn. 2007) (holding an issue was waived where it was

raised for the first time on appeal); Smith v. Hi-Speed, Inc., 536 S.W.3d 458, 482 (Tenn.

Ct. App. 2016) (“Issues not raised in a brief are considered waived.”).

In a similar situation, this Court has declined to reverse a trial court’s grant of

summary judgment, in part because the plaintiff “has not asserted an action for

promissory fraud.” Henley, 1991 WL 120403, at *3 (affirming summary judgment also

on the basis that no admissible evidence was presented to support the allegation that

addressed promissory fraud). Here, the allegations in the amended complaint illustrate

that Mayor Lawson did not unequivocally promise Appellant future employment, but

rather indicated his intent and his effort to do so. Although Appellant’s amended

complaint asserts that the statement that Appellant “would have a job” was false when

made, the amended complaint contains no allegations that Mayor Lawson made the

“promise of future action with no present intent to perform.” Houghland, 2006 WL

2080078, at *3. In fact, the allegations in the amended complaint show the opposite to be

true, as Appellant alleges that Mayor Lawson indeed presented the issue to the County

Commission, which indicated that funds were not available for the position. Thus,

Appellant’s own allegations negate an essential element of this tort. Given that Appellant

has failed to address promissory fraud in any manner in this appeal or in the trial court

and Appellant’s failure to allege facts sufficient to establish the prima facie elements of

this tort, we decline to reverse the trial court’s dismissal of this claim.14

Count 9 – Negligent Misrepresentation

Finally, Appellant contends that the trial court erred in dismissing his claim

against Mayor Lawson for negligent misrepresentation. Appellant’s allegations with

regard to this claim largely track the allegations contained in Appellant’s intentional

misrepresentation claim with regard to the “bogus job offer” made by Mayor Lawson.

14

Appellees also argue that Mayor Lawson could not be sued in his individual capacity with

regard to this claim because his action in making the job offer could only be considered part of his official

duties. Given our resolution of this claim, we decline to address this argument.

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“‘[T]o succeed on a claim for negligent misrepresentation, a plaintiff must

establish ‘that the defendant supplied information to the plaintiff; the information was

false; the defendant did not exercise reasonable care in obtaining or communicating the

information and the plaintiffs justifiably relied on the information.’” Morrison v. Allen,

338 S.W.3d 417, 437 (Tenn. 2011) (quoting Walker v. Sunrise Pontiac-GMC Truck,

Inc., 249 S.W.3d 301, 311 (Tenn. 2008)). In order to prevail in a claim for negligent

misrepresentation, plaintiff must therefore show

(1) that the defendant was acting in the course of its business, profession, or

employment, (2) that the defendant supplied false information for the

guidance of others in its business transactions, (3) that the defendant failed

to exercise reasonable care in obtaining or communicating the information,

and (4) that the plaintiff justifiably relied on the information.

Sears v. Gregory, 146 S.W.3d 610, 621 (Tenn. Ct. App. 2004) (citing John Martin Co. v.

Morse/Diesel, Inc., 819 S.W.2d 428, 431 (Tenn. 1991)). In addition, we have held that

the alleged misstatement “must consist of a statement of a material past or present fact.”

McElroy v. Boise Cascade Corp., 632 S.W.2d 127, 130 (Tenn. Ct. App. 1982) (citing

Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 232 (Tenn. Ct. App. 1976)).

Thus, “conjecture or representations concerning future events are not actionable even

though they may later prove to be false.” McElroy, 632 S.W.2d at 130 (citing Young v.

Cooper, 30 Tenn. App. 55, 203 S.W.2d 376 (Tenn. 1947)). We have recently held that “a

statement of intention and representation of a future event . . . is legally infirm to support

a cause of action for negligent misrepresentation.” Jones v. BAC Home Loans Servicing,

LP, No. W2016-00717-COA-R3-CV, 2017 WL 2972218, at *11 (Tenn. Ct. App. July 12,

2017) (citing McElroy, 632 S.W.2d at 130). As we noted above, the alleged statements

made by Mayor Lawson concerning future employment opportunities with Hickman

County constitute statements of future intention, rather than of existing or past fact.

Consequently, like his claim for intentional misrepresentation, Appellant’s negligent

misrepresentation claim against Mayor Lawson must fail.

Conclusion

The judgment of the Circuit Court of Hickman County is affirmed in part, reversed

in part, and remanded to the trial court for further proceedings consistent with this

Opinion. Costs of this appeal are taxed to Appellant David R. Fitzgerald, and his surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

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