IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 1, 2010 Session
CHARLES H. BRYSON, ET AL. v. THE CITY OF CHATTANOOGA, ET AL.
Appeal from the Chancery Court for Hamilton County
No. 06-0284 Howell N. Peoples, Chancellor
No. E2009-01101-COA-R3-CV - FILED SEPTEMBER 27, 2010
Before November 4, 1986, members of the Chattanooga Police and Fire Departments were
allowed to buy back retirement credit for time served while employed in other departments
within the City of Chattanooga. On November 4, 1986, a city-wide referendum was passed
which established a cut-off date of June 1, 1987, in which to buy back these retirement
credits. Almost nineteen (19) years later, this lawsuit was brought by fifteen (15) police
officers (“Plaintiffs”) against the City of Chattanooga (the “City”) and the Chattanooga Fire
and Police Pension Board (the “Pension Board”). Plaintiffs claimed, among other things, that
the 1986 referendum unconstitutionally deprived them of a property right. Plaintiffs sought
a declaration that they be allowed to buy back retirement credits for time served in other City
departments. The Trial Court concluded that the statutes of limitation had run on all of the
claims, with the exception of some of the plaintiffs’ equal protection claim. The Trial Court
then concluded that Defendants were entitled to summary judgment as a matter of law as to
the one timely claim. Plaintiffs appeal, and we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Chancery Court Affirmed; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and J OHN W. M CC LARTY, JJ., joined.
Bryan H. Hoss, C. Leland Davis, and Whitney Durand, Chattanooga, Tennessee, for the
Appellants, Charles H. Bryson, Randall Vincent Dean, James Terry Marlin, Paul W. Lee, Jr.,
Randy W. Dunn, Francene H. Fleming, Anderson G. Hass, Danny B. Hill, Thomas B.
Kennedy, Thomas D. McKinney, Sully Batts, Kimberly K. Miller, Kenneth D. Phillips,
Kimberly Reavley, and Bryan D. Moody.
Christopher A. Crevasse, Neil A. Brunetz, and Robert F. Parsley, Chattanooga, Tennessee,
for the Appellee, Chattanooga Fire and Police Pension Board.
Michael A. McMahan, City Attorney, and Valerie L. Malueg, Assistant City Attorney, for
the Appellee, City of Chattanooga.
OPINION
Background
Plaintiffs are current and former members of the Chattanooga Police
Department. In April of 2006, Plaintiffs filed this declaratory judgment action seeking a
declaration that they are allowed to buy back retirement credit for time spent employed in
other City departments. Plaintiffs sued the City and the Pension Board. According to the
complaint:
Prior to November 4, 1986, the Charter of the City of
Chattanooga allowed Chattanooga Police Department and Fire
Department officers to buy back retirement credit for time
served in other city departments. Section 13.75 of the Charter
of the City of Chattanooga provided the following:
In computing the time served by an applicant for a
pension, if such applicant has been employed in other
city departments of the City of Chattanooga and has been
employed as much as eight (8) years in the department of
fire and police, such applicant shall be given credit for
the time served in other departments; provided, however,
that such member shall pay into the pension fund the
necessary amount to cover the years for which he shall be
given credit, and if he fails to pay such amount into the
fund, he shall be treated as a new employee when he
entered the fire and police department.
This provision allowed police officers to buy back
retirement credit for time spent in other city departments.
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This provision provided certain contractual rights for the
benefit of these officers in their retirement credit for time spent
in other city departments.
On August 19, 1986, the Chattanooga City Council
adopted an adverse Amendment to § 13.75 of the Charter of the
City of Chattanooga. The adverse Amendment was approved at
referendum on November 4, 1986. As amended, Section 13.75
of the Charter of the City of Chattanooga provided the
following:
In computing the time served by an applicant for a
pension, those applicants who were employed as much as
eight (8) years in the police or fire departments on the
date on which this Act is approved may receive credit for
the time served in such other departments of the City of
Chattanooga; provided, however, that any such person
who elects to receive credit for time served in such other
departments of the City, shall pay into the Firemen’s and
Policemen’s Pension Fund before June 1, 1987, such
amounts that would have been contributed by both the
employee and the City into the Firemen’s and
Policemen’s Insurance and Pension Fund for the years
served in such other departments at six percent (6%)
interest, compounded annually from the end of each year
of such uncredited service.
This adverse Amendment created a date, June 1, 1987,
for employees to pay into the Pension fund for the retirement
credit that they elect to take towards their retirement. This
adverse Amendment altered significantly the previous provision.
Following this adverse Amendment, the City of
Chattanooga and The Chattanooga Fire and Police Pension
Board, have permitted several other fire and police officers to
exercise buy back rights after June 1, 1987.
Each of the Plaintiffs reasonably relied on the Charter of
the City of Chattanooga prior to November 4, 1986, to organize
their financial affairs and retirement plans. Each of these
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Plaintiffs have petitioned both the City of Chattanooga and the
Chattanooga Fire and Police Pension Board to allow them to buy
back their retirement credits as permitted prior to the adverse
Amendment. Both the City of Chattanooga and the Chattanooga
Fire and Police Pension Board have refused.
Prior to the ordinance of August 19, 1986, neither the
City of Chattanooga nor the Board gave any indication
whatsoever to the Plaintiffs that they would no longer permit the
Plaintiffs to purchase credit for time served in other city
departments as permitted pursuant to the Charter of the City of
Chattanooga . . . prior to November 4, 1986.
These Plaintiffs are respectfully asking this Court
pursuant to the Tennessee Declaratory Judgment Act to
determine their rights pursuant to the City Charter and the Fire
and Police Pension Board. More specifically . . . , these
Plaintiffs are seeking relief from this Court to declare the
adverse Amendment unconstitutional . . . and allow them to
purchase their retirement credit for time spent in other city
departments prior to becoming police officers in Hamilton
County . . . . (original paragraph numbering omitted; emphasis
in the original)
Plaintiffs claimed the amendment unconstitutionally violated both vested and
unvested contractual rights, amounted to an unconstitutional taking of their property rights
without just compensation, and was an ultra vires act by the City. Plaintiffs further alleged
violations of due process and equal protection of the law.
Defendants answered the complaint and denied any liability to Plaintiffs.
Defendants admitted that the charter was amended, but denied any constitutional violation.
Defendants averred that the Amendment properly was submitted to and approved by the
voters. Defendants further claimed that all Plaintiffs’ alleged causes of action were barred
by laches and the applicable statutes of limitation.
Plaintiffs filed a motion for summary judgment, and an affidavit from each
plaintiff was filed. In these affidavits, which are virtually identical, Plaintiffs state that in
1986, they did not know that the Pension Board was considering revising the provision which
allowed them to purchase credit for time served in other departments. Plaintiffs went on to
state that: (1) they did not know the Pension Board voted on May 8, 1986, to eliminate the
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right to purchase credit for time served in other departments; (2) they did not know that on
August 19, 1986, the Chattanooga City Commission called for a referendum with regard to
whether to change the provision allowing them to purchase credit for time served in other
departments; (3) they did not know the November 4, 1986, referendum on the ballot involved
the elimination of the provision allowing them to purchase credit for time served in other
departments; and (4) they did not know that there was a June 1, 1987, deadline for
purchasing credit for time served in other departments.1 Plaintiffs further asserted that during
the six year period following the June 1, 1987 deadline, a total of twelve police officers were
offered the opportunity to purchase credit for time served in other City departments, and
eleven of the twelve officers did so, and that this amounted to a violation of the equal
protection clause because Plaintiffs were not allowed this same opportunity.
Defendants also filed a motion for summary judgment. Defendants claimed
that the undisputed material facts established that the amended ordinance was validly
approved by the voters and that Plaintiffs had failed to establish that they met the
requirements needed to purchase credit for time served in other departments. Defendants
filed deposition transcripts from numerous witnesses. Among other things, Defendants
asserted that the reason the City established a deadline for allowing policemen and firemen
to buy back retirement benefits was because that provision was negatively affecting the
actuarial soundness of the retirement fund.
Following a hearing on the competing motions for summary judgment, the
Trial Court entered a thorough forty-three page Memorandum Opinion. The Trial Court
ultimately denied Plaintiffs’ motion for summary judgment and granted Defendants’ motion
for summary judgment. In its Memorandum Opinion, the Trial Court reviewed the
procedural and factual history of the case and the events giving rise to this lawsuit.
According to the Trial Court:
Until November 4, 1986, the Chattanooga City Charter
(“the Charter”) provided some members of the Chattanooga Fire
and Police Insurance and Pension Fund (“the Fund”) the
opportunity to receive pension credit for the years they worked
for the City of Chattanooga (“the City”) in positions outside of
the fire and police departments. Chattanooga, Tenn., City
Charter § 13.75 (1980). To be eligible for such credit, pension
applicants had to have worked in the fire or police department
1
Even though Plaintiffs claimed they did not know about the referendum, the entire ballot detailing
the proposed amendment was published in both the Chattanooga Times and the Chattanooga News-Free
Press prior to being voted on and passed by the voters.
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for “as much as eight (8) years,” and had to pay “into the
pension fund the necessary amount to cover” those years for
which the applicant wished to receive police and fire pension
credit. Id. The Chattanooga Fire and Police Pension Board
(“the Board”), the body that administers the Fund, interpreted
the phrase “as much as eight (8) years” to mean that “individuals
had to first work eight years as a firefighter or police officer”
before they were eligible to receive pension credit for years they
worked in other departments. . . .
On August 19, 1986, however, the Chattanooga City
Commission (“the Commission”) approved Ordinance 8688
(“the Ordinance”), which amended § 13.75 of the Charter to the
effect that members of the Pension Fund would no longer be
allowed to purchase fire and police pension credit for past
municipal employment. . . . According to the amendment,
pension applicants who worked “as much as eight (8) years in
the police or fire departments” and wished to receive fire and
police pension credit for time worked in other City departments
had to purchase such credit, at a rate which now included a 6%
interest fee, prior to June 1, 1987. Charter § 13.75 (1986). On
November 4, 1986, the residents of the City voted in a popular
referendum to approve the Ordinance so amending the
Charter. . . .
Despite the amendment’s explicit language setting a June
1, 1987, deadline for purchasing pension credit for years worked
in other departments, the Board’s attorney advised the Board
that it could consider any Fund member’s written request to
purchase pension credit dated before June 1, 1987, as timely. . . .
After June 1, 1987, the Board allowed twelve (12) Fund
members to purchase pension credit for years worked in other
departments on the basis that these members both met the eight
year employment requirement – as interpreted by the Board –
and submitted written requests prior to June 1, 1987, to purchase
the pension credit. . . .
Plaintiffs are members of the Fund who are either
recently retired from employment with the City, or are nearing
retirement age. (Compl. at ¶¶ 19, 20.) Plaintiffs claim they
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“reasonably relied on” the pre-1986 Charter in planning for their
retirement, and duly have asked the City and the Board to allow
them to purchase pension credits for years worked in other City
departments. (Compl. at ¶ 29.) Plaintiffs allege that the City
and the Board have denied their requests to purchase pension
credit despite the fact that the Board allowed twelve other Fund
members to do so after the June 1, 1987, deadline. (Compl. at
¶ 29.)
Plaintiffs filed suit against the City and the Board
(collectively “Defendants”) on April 4, 2006, under the
Tennessee Declaratory Judgment Act, requesting the court to
declare the Ordinance of 1986 void as unconstitutional under
both the Tennessee and federal constitutions. Specifically,
Plaintiffs allege the Ordinance violates their due process and
equal protection rights, impairs their vested and unvested
contract rights, constitutes an ultra vires act, and impermissibly
takes their property rights without just compensation. (Compl.
at ¶¶ 32-69.) On May 10, 2006, Defendants filed their Answer
in which they admitted many of Plaintiffs’ factual allegations,
but denied that these allegations constituted any wrongdoing.
Defendants also raised a number of affirmative defenses,
including laches and statutes of limitation. On July 7, 2008,
Plaintiffs filed their Motion for Summary Judgment, and on
August 11, 2008, Defendants filed their Motion for Summary
Judgment. On September 29, 2008, both Plaintiffs and
Defendants filed responses to each others’ motions. . . .
[The issues are whether] the actions of the City and the
Board violated Plaintiffs’ constitutional rights as alleged in
Plaintiffs’ Complaint, and whether Plaintiffs’ suit is barred by
any applicable statute of limitations.
* * *
Defendants argue that all of Plaintiffs’ claims are barred
by any applicable statutes of limitations. . . . Defendants argue
that all of Plaintiffs’ constitutional claims are barred by a one
year statute of limitations pursuant to Tenn. Code Ann. § 28-3-
104 and applicable federal precedent . . . . Defendants [further]
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argue that even if the Court applied the ten year catch-all statute
of limitations in Tenn. Code Ann. § 28-3-110(3), the statute
started to run on June 1, 1987, at the latest and therefore
Plaintiffs in 2006 were too late to file suit.
Plaintiffs, on the other hand, argue that the only statute of
limitation that is applicable in this case is the ten year catch-all
in Tenn. Code Ann. § 28-3-110(3), and that this statute did not
start to run until the Plaintiffs sought to access their pension
benefits upon retirement and were denied the opportunity to
purchase pension credit by the Board. . . . [Plaintiffs further]
argue that the one year statute of limitations is limited to tort
cases involving “compensatory type damages.” . . . Plaintiffs
duly assert that because “[t]here is no category regarding
pension legislation or employment benefits,” their cause of
action “falls into the general catch-all category” in Tenn. Code
Ann. § 28-3-110(3). . . . In the alternative, Plaintiffs suggest
that the six year statute of limitations pursuant to Tenn. Code
Ann. § 28-3-109(a)(3) for actions in contract applies. . . .
The Trial Court then discussed the applicable statute of limitations for a cause
of action brought pursuant to 42 U.S.C. § 1983 for the deprivation of civil rights guaranteed
by the Fourth, Fifth, and Fourteenth Amendments to the federal constitution. The Trial Court
initially determined that all claims brought pursuant to § 1983 had a one year statute of
limitations. The Trial Court then concluded that the statute of limitations began to run when
Plaintiffs knew or had reason to know of the injury. The Trial Court added that a plaintiff
has reason to know of an injury if he would have discovered it through the exercise of
reasonable diligence. The Trial Court stated:
In the present case, Plaintiffs allege that Defendants
deprived them of their Due Process and Equal Protection rights
under the United States Constitution in violation of § 1983. The
relevant Charter provisions were amended via the adoption of an
Ordinance by popular vote in a city-wide referendum on
November 4, 1986, nearly twenty years before Plaintiffs filed
suit. Most of the Due Process defects Plaintiffs allege occurred
on or before this date. The November 4, 1986, general election
did not occur in secret – indeed, the entirety of the Ordinance
was published on the election ballot – and Plaintiffs had as
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much constructive notice of this election as every other
Chattanooga voter.
Likewise, Defendants’ allowance of some officers to
purchase pension credit after the June 1, 1987 deadline occurred
in the late 1980s and early to mid-1990s, well over ten years
prior to Plaintiffs’ initiation of the present suit. In fact, the latest
date on which the Board is alleged to have denied any of
Plaintiffs the opportunity to purchase pension credit was March
8, 2004. . . . Plaintiffs therefore had ample opportunity to gain
the actual and constructive knowledge of their causes of action
over the past twenty years. Regardless of whether the court
dates the accrual of Plaintiffs’ § 1983 cause of action in 1986,
1987 or some subsequent year in which Defendants granted
pension purchase rights to a police officer or firefighter on the
basis of a pre-1987 written request, or conversely denied one of
Plaintiffs’ requests, Plaintiffs’ § 1983 claims do not satisfy the
one year statute of limitations and are therefore time barred.
Next, the Trial Court discussed the applicable statute of limitations for the
remaining claims; specifically, impairment of contract rights, unconstitutional taking without
just compensation, violation of equal protection of the law, and a claim that the
Commission’s amending of the ordinance was an ultra vires act. Because neither Plaintiffs
nor Defendants argued that anything other than a ten year statute of limitations applied to
these claims, the Trial Court proceeded upon the assumption that the ten year statute of
limitations in Tenn. Code Ann. § 28-3-110(3) applied. Based on this assumption, the Trial
Court then discussed when the ten year statute of limitation began to run. The Trial Court
resolved this issue as follows:
In the words of the Sixth Circuit Court of Appeals in
Hodge [v. Service Machine Corp., 438 F.2d 347 (6 th Cir. 1971)],
a case Plaintiffs rely upon in support of their proposition about
the accrual of their causes of action, “[a] cause of action accrues
when a suit may be maintained upon it. A suit may not be
brought upon a cause of action until it exists, and a cause of
action does not exist until all its elements coalesce.” Hodge,
438 F.2d at 349 (internal citation omitted). Plaintiffs
misconstrue the nature of many of their causes of action insofar
as they point to the date of Plaintiffs’ actual retirement as the
date on which Plaintiffs were allegedly wronged, arguing for
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instance that the pensions themselves are the objects of
Defendants’ taking or impairment. However, the right at issue
in this case is the right to purchase pension credit toward time
served in the Department for years worked in other departments.
As such, the date relevant to the accrual of Plaintiffs’ cause of
action is that which marks the termination of this right: June 1,
1987. Any unconstitutional impairment or taking of Plaintiffs’
right to purchase pension credit occurred no later than that date,
and likewise any allege ultra vires municipal acts related to the
adoption of the Ordinance occurred, if at all, prior to that date.
Thus, the elements of any causes of action that may have arisen
from Defendants’ adoption of the Ordinance and the voters’
approval thereof certainly “coalesced” no later than June 1,
1987, and therefore began the running of the ten year statute of
limitations.
Some of the Plaintiffs’ equal protection claims, however,
may satisfy the ten year statute of limitations. The elements of
any of the Plaintiffs’ equal protection claims could not have
“coalesced” until such Plaintiffs were treated different by the
Board than the allegedly similarly situated Department
employees who were allowed to buy pension credits after the
June 1, 1987 deadline. Any Plaintiffs who were denied
permission to purchase pension rights within ten years of the
initiation of this suit (i.e. at any time after April 4, 1996) are
therefore within the ten year statute of limitations as to their
equal protection claims. There is evidence that at least three
Plaintiffs satisfy this criterion. . . . (footnote omitted)
After concluding that “at least three” plaintiffs had timely equal protection
claims, the Trial Court discussed the merits of this particular claim. The Trial Court
explained that, according to Plaintiffs, they were denied equal protection because although
other police officers were allowed to buy back time spent in other city departments,
Plaintiffs were not. The Trial Court characterized this as a “selective enforcement” claim,
which required Plaintiffs to show they were singled out for adverse enforcement for an
impermissible reason. The Trial Court explained that Plaintiffs essentially argued that
because other pension members were allowed to buy back retirement credit contrary to the
amended ordinance, then they also should be allowed to buy back retirement credit contrary
to the ordinance. According to the Trial Court:
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Plaintiffs would have this court invalidate Defendants’ present
enforcement of the Ordinance in favor of action that Plaintiffs
freely admit is “contrary to” the requirements of the law.
Defendants are merely enforcing the Ordinance’s deadline.
Even if they did so incorrectly in the past, their current correct
application of the law cannot be disturbed by this court without
some proof of discriminatory animus on the one hand, or a total
lack of reason on the other.
Because there was no evidence presented showing any proof of discriminatory animus and
because the financial impact of the buy back provision on the actuarial soundness of the
pension plan was a valid reason for the change to the Ordinance, the Trial Court concluded
that Defendants were entitled to summary judgment on Plaintiffs’ timely equal protection
claims as well.
Plaintiffs appeal raising several issues, all of which surround the granting of
Defendants’ motion for summary judgment. In summary, Plaintiffs argue that the Trial Court
incorrectly determined that the statutes of limitation had run on all but their equal protection
claim. Plaintiffs also claim the Trial Court erred in granting summary judgment on their
selective enforcement (equal protection) claim. Finally, Plaintiffs challenge whether they
were given adequate notice that the City intended to amend the ordinance and institute a
deadline for buying back retirement credit.
Defendants assert that the Trial Court correctly granted their motion for
summary judgment. Defendants request an award of attorney fees incurred on appeal.
Discussion
Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:
The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
law, no presumption of correctness attaches to the judgment, and
our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,
50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).
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A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party
cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). A grant of summary judgment is appropriate only
when the facts and the reasonable inferences from those facts
would permit a reasonable person to reach only one conclusion.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
We first address whether the statutes of limitation had run on Plaintiff’s various
claims. Plaintiffs argue on appeal that the shortest potentially applicable statute of
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limitations is the ten year statute of limitation found in Tenn. Code Ann. § 28-3-110(3), then
go on to assert that this “may be a case in which there is no statute of limitations.” At times
before the Trial Court, Plaintiffs argued that perhaps the six year statute of limitations for
breach of contract may apply. Defendants argue that Plaintiffs § 1983 claims have a one-year
statute of limitations. With respect to the other claims, Defendants argue that the longest
potentially applicable statute of limitations is the ten year statute of limitations found in § 28-
3-110(3).2
In our opinion, the dispositive issue in this case is not which statutes of
limitation apply, but rather when any such statute began to run. Shadrick v. Coker, 963
S.W.2d 726 (Tenn. 1998) involved, among other things, when a statute of limitation in a
medical malpractice claim began to run. The Supreme Court explained:
[A] plaintiff may not . . . delay filing suit until all the
injurious effects and consequences of the alleged wrong are
actually known to the plaintiff. Wyatt v. A-Best Company, 910
S.W.2d 851, 855 (Tenn. 1995). Similarly, the statute of
limitations is not tolled until the plaintiff actually knows the
“specific type of legal claim he or she has,” Stanbury, at 672, or
that “the injury constitute[d] a breach of the appropriate legal
standard,” Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994).
Rather, as we have recently emphasized, the statute of
limitations begins to run when the plaintiff knows or in the
exercise of reasonable care and diligence should know that an
injury has been sustained as a result of wrongful or tortious
conduct by the defendant. Stanbury, at 677; see also Roe, 875
S.W.2d at 657 (“[T]he plaintiff is deemed to have discovered the
right of action if he is aware of facts sufficient to put a
reasonable person on notice that he has suffered an injury as a
result of wrongful conduct.”). “It is knowledge of facts
2
Tenn. Code Ann. § 28-3-110 provides that “[t]he following actions shall be commenced within ten
(10) years after the cause of action accrued:
(1) Actions against guardians, executors, administrators, sheriffs, clerks, and other public
officers on their bonds;
(2) Actions on judgments and decrees of courts of record of this or any other state or
government; and
(3) All other cases not expressly provided for.”
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sufficient to put a plaintiff on notice that an injury has been
sustained which is crucial.” Stanbury, at 678. Such knowledge
includes not only an awareness of the injury, but also the
tortious origin or wrongful nature of that injury. Hathaway v.
Middle Tennessee Anesthesiology, P.C., 724 S.W.2d 355, 359
(Tenn. App. 1986).
Shadrick, 963 S.W.2d at 733-34.
Returning to the present case, regardless of which statute of limitation
ultimately applies, that statute began to run “when the plaintiff knows or in the exercise of
reasonable care and diligence should know that an injury has been sustained as a result of
wrongful or tortious conduct by the defendant.” Id. at 733. Attached to Defendants’ motion
for summary judgment was the affidavit of Mary Helms, head of the Local History and
Genealogy Department at the Chattanooga-Hamilton County Library. According to Helms:
I personally researched and copied the following materials
pertaining to the November 4, 1986 Election:
a. The legal notice entitled, “NOTICE OF
REFEREN D UM ELEC T IO N C ity of
Chattanooga, Tennessee Ordinance No. 8688,”
which ran in the Chattanooga Times on August
21, 1986, page E6 . . . .
b. The legal notice entitled, “NOTICE OF
R E FER E N D U M ELECTIO N City of
Chattanooga, Tennessee Ordinance No. 8688,”
which ran in the Chattanooga News-Free Press
on August 21, 1986, Page G2 . . . .
c. The legal notice entitled “ELECTION SAMPLE
BALLOT CHATTANOOGA SCHOOL BOARD
AND CHARTER AMENDMENT Tuesday,
November 4, 1986,” which ran in the
Chattanooga Times on October 31, 1986, page
C5 . . . .
d. The legal notice entitled “ELECTION SAMPLE
BALLOT CHATTANOOGA SCHOOL BOARD
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AND CHARTER AMENDMENT Tuesday,
November 4, 1986,” which ran in the
Chattanooga News-Free Press on October 31,
1986, page D3 . . . .
The referendum was published in its entirety in the paper prior to the election.
Then, on November 4, 1986, the citizens of Chattanooga voted in favor of the referendum.
Once the referendum was passed, the amended ordinance went on the books and in effect.
It is inescapable that Plaintiffs either were or should have been aware of the alleged wrongful
conduct (i.e., the establishment of a cut-off date of June 1, 1987, in which to buy back
retirement credit for time spent in other City departments) at the very latest on November 4,
1986, when the referendum was passed by the voters. When the referendum was passed on
November 4, 1986, anyone employed in the police or fire departments knew or should have
known at that time that they had until June 1, 1987, in which to buy back retirement for time
spent working in other city departments. Accordingly, we hold that any applicable statute
of limitations began to run on November 4, 1986.
The present lawsuit was filed in April of 2006, over nineteen years after the
referendum was passed by the voters. Since any statute of limitation began to run on
November 4, 1986, it does not matter if a one-year, six-year, or ten-year statute of limitations
applies because all of these statutes of limitations would have run long before the time this
lawsuit was filed.3
Plaintiffs argue that they were “lulled” into not filing suit and, therefore, any
applicable statute of limitations was either waived or should be tolled. As noted by the
Supreme Court in Paducah v. City of Johnson City, 896 S.W.2d 767 (Tenn. 1995), “[p]ublic
agencies are not subject to equitable estoppel or estoppel in pais to the same extent as private
parties and very exceptional circumstances are required to invoke the doctrine against the
State and its governmental subdivisions.” Id. at 772 (quoting Bledsoe County v.
McReynolds, 703 S.W.2d 123, 124 (Tenn.1985)). In Elizabethton Housing & Dev. Agency,
Inc. v. Price, 844 S.W.2d 614 (Tenn. Ct. App. 1992); this Court stated:
“It is significant to observe that in those Tennessee cases where
estoppel was applied, or could have been applied, the public
body took affirmative action that clearly induced a private party
to act to his or her detriment, as distinguished from silence,
3
A ten year statute of limitations is the longest statute of limitations Plaintiffs claim may be
applicable to this case. We reject Plaintiff’s unsupported assertion that this may be a case where no statute
of limitations applies.
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non-action or acquiescence.” [Bledsoe County v. McReynolds],
703 S.W.2d at 125. . . . Estoppel is appropriate against
government agencies only when the agency induced the party to
give up property or a right in exchange for a promise. Thus,
estoppel is appropriate when the facts clearly evidence an
implied contract, Gas-light Co. v. Memphis, 93 Tenn. 612, 30
S.W. 25 (1894); Trull v. City of Lobelville, 554 S.W.2d 638
(Tenn. App. 1976); Brown v. City of Manchester, 722 S.W.2d
394, 397 (Tenn. App. 1986), or when the government induces a
private party to relinquish a cause of action, State ex rel.
Ammons v. City of Knoxville, 33 Tenn. App. 622, 232 S.W.2d
564 (1950).
Price, 844 S.W.2d at 618.
We do not find any conduct of the City that would rise to this level. Plaintiffs
admit that when they sought to buy back retirement credit, their request was denied. Minutes
from the Pension Board meeting of October 4, 1994, show that the City’s attorney discussed
the possibility of a lawsuit being filed. The record shows that at various times, one or two
members of the Pension Board or City Council indicated they would support allowing a buy
back of retirement credits. However, simply because a member of the City Council or the
Pension Board supported Plaintiffs’ position or because the City agreed to look into the
matter further does not mean the City waived the issue or otherwise is estopped. In fact, in
2003, Plaintiffs and other similarly situated personnel were, as described by counsel for
Plaintiffs on appeal, “invited” to file suit against the City. This is directly contrary to an
assertion that they were “lulled” into not filing suit. Although Plaintiffs unsuccessfully
sought to buy back retirement credit and the matter was discussed at Pension Board meetings,
we find nothing in the record that could be characterized, even viewing the evidence and all
reasonable inferences in the light most favorable to Plaintiffs, as the City inducing Plaintiffs
to relinquish suing or as an estoppel to the City asserting a statute of limitations defense. See
Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 146 (Tenn. 2001)(“Equitable estoppel only applies
when the defendant has taken steps to specifically prevent the plaintiff from timely filing his
complaint (as where he promises not to plead the statute of limitations.”)). We further note
that several of the events which Plaintiffs claim resulted in an estoppel or waiver occurred
after any applicable statute of limitations had already expired.
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We affirm the judgment of the Trial Court finding that the statute of limitations
had run on all of Plaintiffs’ claims except the selective enforcement claim.4 As to this claim,
we agree with the Trial Court that simply because, many years ago, the Pension Board may
improperly have allowed several police officers to buy back credit for time spent in other
departments, this does not automatically mean that not allowing Plaintiffs to improperly do
the same thing amounts to a violation of the equal protection clause or results in illegal
selective enforcement. If we accepted this argument, then we would have to “not apply” the
amended ordinance to these Plaintiffs. In turn, Defendants, and the courts, would be
prohibited from applying the amended ordinance to the next set of plaintiffs because they
would be treating them differently than the current Plaintiffs, etc. The end result would be
to completely invalidate the amended ordinance with respect to each and every member of
the police and fire departments who previously worked in other departments.
In reaching the conclusion that there has been no selective enforcement, we
emphasize that there has been no showing whatsoever that the City is enforcing the amended
ordinance based on an impermissible criteria, such as race or sex, etc. There is no genuine
issue as to this fact. Accordingly, the Pension Board need only have a rational basis for its
actions. See Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 518 (Tenn. 2005)(“It
is elementary that where neither fundamental rights nor suspect classifications are at issue,
rational basis scrutiny applies.”). Complying with the ordinance as amended by the citizens
of Chattanooga clearly constitutes a rational basis for the action. Simply because the Pension
Board may have improperly allowed some officers to buy back retirement credit more than
a decade ago does not mean that the amended ordinance cannot be enforced properly now.
Finally, we address Plaintiffs’ argument that they did not receive proper notice
that the City intended on amending the ordinance. Assuming, without deciding, that
Plaintiffs were entitled to due process prior to the ordinance being amended, the undisputed
facts set forth above show that Plaintiffs and, indeed, the entire City were provided with
abundant due process. Plaintiffs were provided notice in the newspapers on more than one
occasion, the amendment was placed on the ballot, the amendment was put to a vote by the
citizens of Chattanooga, and the amendment was passed by a majority of voters. In short,
we conclude that Plaintiffs were provided ample due process including proper notice.
While this appeal was pending, Defendants filed a motion requesting an award
of attorney fees pursuant to 42 U.S.C. § 1983. Defendants acknowledge that such an award
would be discretionary. Exercising our discretion, we decline to award attorney fees. All
remaining issues are necessarily pretermitted.
4
We will assume, without deciding, that the statute of limitations for the selective enforcement claim
had not run by the time suit was filed as to at least some of the Plaintiffs.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Chancery Court for Hamilton County solely for collection of the costs below. Costs on
appeal are taxed to the Appellants, Charles H. Bryson, Randall Vincent Dean, James Terry
Marlin, Paul W. Lee, Jr., Randy W. Dunn, Francene H. Fleming, Anderson G. Hass, Danny
B. Hill, Thomas B. Kennedy, Thomas D. McKinney, Sully Batts, Kimberly K. Miller,
Kenneth D. Phillips, Kimberly Reavley, and Bryan D. Moody, and their surety, for which
execution may issue, if necessary.
_________________________________
D. MICHAEL SWINEY, JUDGE
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