IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
HAROLD EUGENE SMITH, )
)
Plaintiff/Appellant, ) Davidson Circuit No. 95C-2036
)
VS. ) Appeal No. 01A01-9607-CV-00338
)
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, et al,
)
) FILED
)
Defendants/Appellees. ) January 15, 1997
Cecil W. Crowson
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTYAppellate Court Clerk
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
HAROLD EUGENE SMITH, pro se
Nashville, Tennessee
PAUL D. KRIVACKA
METROPOLITAN ATTORNEY
Nashville, Tennessee
Attorney for Appellee Metropolitan Government
of Nashville and Davidson County
GEORGE E. BARRETT
PHILLIP A. PURCELL
BARRETT, JOHNSTON & PARSLEY
Nashville, Tennessee
Attorneys for Appellees Metropolitan Development
and Housing Agency, Gerald F. Nicely,
Bob Howard and Paul Jennings
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Plaintiff Harold Eugene Smith, appearing pro se, appeals the trial court’s final order
which dismissed the Plaintiff’s complaint against Defendants/Appellees Metropolitan
Government of Nashville and Davidson County (Metro), Metropolitan Development and
Housing Agency (MDHA), and two MDHA employees, Bob Howard (Howard) and Paul
Jennings (Jennings). The trial court dismissed the Plaintiff’s claims against Metro and
MDHA based on the one-year statute of limitations contained in the Tennessee
Governmental Tort Liability Act. See T.C.A. § 29-20-305(b) (Supp. 1992). Regarding the
Plaintiff’s other claims, the trial court entered summary judgment in favor of Howard and
Jennings based on the affidavit, depositions, and documents filed in this case. For the
reasons hereinafter stated, we affirm the trial court’s dismissal of the Plaintiff’s complaint.
This lawsuit arose out MDHA’s efforts during the summer of 1992 to remove the
Plaintiff and his possessions from property located at 521 Southgate Avenue in Nashville,
Davidson County, Tennessee. The property formerly was owned by the Plaintiff’s family
but had been condemned by MDHA. The Plaintiff’s complaint, filed June 27, 1995,
contains the following factual allegations:
8. By letter dated April 17, 1992, Defendant Howard
notified Plaintiff that Defendant MDHA was planning to purchase property
located at 521 Southgate Avenue in Nashville, Davidson County, Tennessee.
Defendant MDHA was acting pursuant to a Condemnation Ordinance passed
by [Metro’s] County Council, . . . . At the time the letter was received by
Plaintiff, Plaintiff resided and had resided at 521 Southgate Avenue since
1975. Although Plaintiff did not hold legal title to the property, he was
pursuing a lawsuit against his father, James A. Smith, in the Circuit Court of
Davidson County, claiming an equitable interest in the property based on a
resulting trust from his grandmother.
9. On numerous occasions, Plaintiff talked with Defendant
Howard by telephone and attempted to obtain assistance for relocation.
During these conversations, Defendant Howard was rude and
condescending to Plaintiff, and on one occasion, Defendant Howard told
Plaintiff that he was going to “throw your damn black, squatting ass out.”
10. Defendant MDHA obtained title to the property at 521
Southgate Avenue on July 13, 1992, through a Court Order which did not
become final until August 13, 1992. Plaintiff did not become aware of this
change of title until July 13, 1992, when he received a letter from [MDHA’s
Executive Director] dated July 10, 1992, . . . . [The] letter informed Plaintiff
that it was the intention of MDHA to remove all Plaintiff’s possessions from
the premises on July 14, 1992.
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11. On July 14, 1992, Plaintiff filed a lawsuit in the Chancery
Court for Davidson County seeking to enjoin MDHA from taking possession
of the property located at 521 Southgate Avenue.
12. On July 14, 1992, and without any notice to Plaintiff,
Defendant Jennings, acting on behalf of MDHA, obtained a criminal warrant
against Plaintiff alleging that Plaintiff had committed the crime of criminal
trespass. On July 15, 1992, Defendants Howard and Jennings, and several
other unknown officers and employees of MDHA, executed the warrant and
arrested Plaintiff at his home at 521 Southgate Avenue. Because Plaintiff
could not post bond in the amount of $5,000.00, he remained in custody for
approximately 36 hours, until General Sessions Judge Gale Robinson, Junior
released Plaintiff on his own recognizance. On October 26, 1992, the State
of Tennessee, through its Assistant District Attorney General, dismissed the
criminal action against Plaintiff.
13. While Plaintiff was incarcerated, agents of the MDHA
removed numerous possessions of Plaintiff from the property which, to this
date, have not been returned to Plaintiff. This property included, but is not
limited to, irreplaceable business records in the form of computer data,
programs, correspondence, books, microfilm, video and audio tapes,
compact discs, tools, computer and other [electronic] equipment, household
furniture, appliances, personal clothing, and many childhood and family
mementos.
14. Plaintiff then negotiated by and through his counsel Sam
Lipshie with MDHA attorney George Barrett an agreement under which
MDHA agreed to allow Plaintiff to recover what property was left at 521
Southgate Avenue prior to September 9, 1992. Despite this agreement, and
in direct breach of this agreement, MDHA, on September 8, 1992, looted and
bulldozed the premises at 521 Southgate Avenue, thereby causing the
Plaintiff further and substantial harm and damages to his property.
Based on these factual allegations, the Plaintiff asserted claims against the
Defendants for false arrest and false imprisonment, malicious prosecution and abuse of
process, outrageous conduct and intentional infliction of emotional distress, and trespass
to chattels and/or conversion. Metro responded by filing a motion to dismiss, contending
that the Plaintiff’s complaint failed to state a claim upon which relief could be granted, see
T.R.C.P. 12.02(6), and that, in any event, the Plaintiff’s claims were barred by the one-year
statute of limitations contained in the Tennessee Governmental Tort Liability Act. See
T.C.A. § 29-20-305(b) (Supp. 1992). The remaining Defendants also filed a motion to
dismiss pursuant to rule 12.02(6) and, in the alternative, a motion for summary judgment.
See T.R.C.P. 56.02.
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After the trial court entered its final order granting the Defendants’ motions and
dismissing the Plaintiff’s complaint, the Plaintiff filed a motion to set aside the trial court’s
final order. The trial court denied the Plaintiff’s motion, and this appeal followed.
On appeal, the Plaintiff raises two procedural issues for review:
I.[Whether] the circuit court erred in allowing the admission into the trial
record [of] the October 11, 1995, document entitled; “Reply Brief of
Defendants MDHA, Howard and Jennings.”
II.[Whether] the circuit court abused its authority in not setting aside its order
which denied [the Plaintiff’s] constitutionally guaranteed rights.
We first reject the Plaintiff’s contention regarding the trial court’s admission into the
record of the October 11, 1995, Reply Brief because the record on appeal fails to reflect
that the Plaintiff objected to admission of the brief below. The trial court conducted a
hearing on the Defendants’ motions to dismiss on October 13, 1995. On October 9, 1995,
the Plaintiff filed a response to the Defendants’ motions. According to the Plaintiff’s brief
on appeal, the Defendants MDHA, Howard, and Jennings filed the Reply Brief on October
11, 1995, two days before the hearing on the motions to dismiss. The Plaintiff contends
that the trial court abused its discretion in considering the Defendants’ Reply Brief at the
October 13 hearing because the Defendants failed to serve this document upon the
Plaintiff by 5:00 p.m., Wednesday, October 11, 1995, in violation of Local Rule 12. See
Davidson County Cts. R. 12.04(e) (requiring that replies to responses to motions “be
served on all other parties no later than 5:00 p.m. on the Wednesday before the Friday on
which the motion is to be heard”).
This issue is without merit. The record on appeal fails to contain either the October
11, 1995, Reply Brief or a transcript of the October 13, 1995, hearing during which the trial
court allegedly considered the Reply Brief. Without such a record, we are unable to
determine whether the trial court improperly admitted the Reply Brief at the hearing below
or whether the Plaintiff raised a timely objection to its introduction. See State v. Boling, 840
S.W.2d 944, 951 (Tenn. Crim. App. 1992) (stating that, pursuant to T.R.A.P. 24(b),
appellant has duty “to prepare a record which conveys a fair, accurate and complete
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account of what transpired in the trial court with respect to the issues which form the basis
of the appeal”); Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. App. 1991) (holding that,
where appellant failed to make appropriate objection at trial court level, issue was waived
on appeal).
We also reject the Plaintiff’s argument that the trial court’s refusal to set aside the
final order dismissing the Plaintiff’s claims resulted in a denial of the Plaintiff’s constitutional
rights of due process and equal protection under the Tennessee and United States
Constitutions. See U.S. Const. amends. V, XIV; Tenn. Const. art. I, § 8; Tenn. Const. art.
XI, § 8. In making this argument, the Plaintiff contends that he is entitled to his day in court
to have the case determined on its merits.
In dismissing the Plaintiff’s claims, the trial court relied primarily on the one-year
statute of limitations contained in the Tennessee Governmental Tort Liability Act.1
Tennessee courts have repeatedly held that similar statutes of limitation and repose do not
result in a denial of equal protection or due process rights under either the Tennessee or
United States Constitutions. Jones v. Five Star Engineering, Inc., 717 S.W.2d 882, 883
(Tenn. 1986) (equal protection and due process); Harmon v. Angus R. Jessup Assocs.,
619 S.W.2d 522, 524-25 (Tenn. 1981) (equal protection); Harrison v. Schrader, 569
S.W.2d 822, 824-27 (Tenn. 1978) (equal protection); Brown v. State, 928 S.W.2d 453,
455-56 (Tenn. Crim. App. 1996) (equal protection and due process). Additionally, such
statutes do not violate the Tennessee Constitution’s open courts provision, which provides
1
Although the P laintiff has no t appealed the trial court’s dism issal on su bsta ntive groun ds, w e no te
that the trial court’s ruling on the statute of limitations defense appears to be correct. The events which
form ed the basis of the Plaintiff’s com plaint occurred in 1992, but the Plaintiff did not file his com plaint until
Jun e 27 , 1995. See T.C .A. § 29-20 -305 (b) (S upp . 1992) (providing that any ac tion ag ainst a
governm ental entity “must be c om m enced within twelve (12) m onths after the caus e of action arises”).
W e also agree with th e trial court’s rulin g that th e savings statu te did not prevent dism issal of this
action . See T.C.A. § 28-1-115 (Supp. 1995). The affidavit and materials filed in support of the motion for
summ ary judgment indicated that the Plaintiff filed a similar action in federal district court in June 1993
and that th e fe deral court, by o rder entered June 29, 1994, dism issed the Plaintiff’s sta te-law claim s
“without prejudice for lack of jurisdiction.” The savings statute provides that, “[n]otwithstanding any
applicable statu te of lim itatio n to the contrary, any party filing an actio n in a fe deral court tha t is
sub seq uen tly dism issed for lack of jurisdiction sha ll have o ne (1 ) year fro m the date of suc h dism issal to
timely file such action in an approp riate state court.” T.C.A. § 28-1-11 5 (Supp. 199 5). This court
previously has held, however, that the savings statute does not apply to actions against a governmental
entity und er the Te nne sse e G overnm enta l Tort Liability Act. W ebs ter v. T enn ess ee B d. of R ege nts, 902
S.W .2d 412, 414-1 5 (T enn . App . 1995); Nance v. C ity of Knoxville, 883 S.W .2d 629, 631-32 (Tenn. App.
1994).
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that “all courts shall be open” and that “every man, for an injury done him in his lands,
goods, person or reputation, shall have remedy by due course of law, and right and justice
administered without sale, denial, or delay.” Harrison, 569 S.W.2d at 827 (quoting Tenn.
Const. art. I, § 17); accord Five Star Engineering, 717 S.W.2d at 883; Harmon, 619 S.W.2d
at 524.2
The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to the
Plaintiff, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
2
W e similarly conclude that the summ ary judgment procedure employed in this case did not
violate the du e pro ces s pro visions of th e T enn ess ee a nd U nited S tates Constitution s, or the op en c ourts
prov ision of the T enn ess ee C ons titution. See, e.g., Father & Sons Lumber & Bldg. Supplies v. NLRB, 931
F.2d 1093, 1096 (6th Cir. 1991) (rejecting employers’ contention that NLRB violated their due process
rights by refusing to condu ct evidentiary hearing after em ployers perm itted default sum m ary judgm ent to
be entered ag ainst them). T he sum m ary judgm ent process “is designed to provide a quick, inexpen sive
m ean s of c onc luding cas es, in w hole or in pa rt, upon issues as to which there is no ge nuine disp ute
regarding m aterial facts.” Byrd v. Hall, 847 S.W .2d 208, 210 (Tenn. 1993). On appeal, the Plaintiff has
failed to articulate any genuine issue of material of fact requiring a trial on the merits in this case.
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