Boone v. Town of Collierville

593 S.W.3d 156

William L. BOONE

v.TOWN OF COLLIERVILLE

No. W2018-02005-COA-R9-CV

Court of Appeals of Tennessee, Western Section, AT JACKSON.

June 18, 2019 Session

FILED August 8, 2019

Application for Permission to Appeal Denied by Supreme Court December 10, 2019

Edward J. McKenney, Jr. and William Joseph Wyatt, Collierville, Tennessee, for the appellant, City of Collierville, Tennessee.

Donald A. Donati and Bradley Andrew Davis, Collierville, Tennessee, for the appellee, William L. Boone.

J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Thomas R. Frierson, II, and Carma Dennis McGee, JJ., joined.

J. Steven Stafford, P.J.

After the dismissal of his federal action, plaintiff filed a state court action alleging a violation of the Public Employee Political Freedom Act. The defendant city thereafter filed a motion to dismiss, arguing that because plaintiff's action was against a state entity, plaintiff could not rely on the saving statute, Tennessee Code Annotated section 28-1-115. The trial court denied the motion to dismiss but granted an interlocutory appeal. We granted the application for interlocutory appeal and now reverse the decision of the trial court.

PROCEDURAL HISTORY

On March 27, 2015, Defendant/Appellant Town of Collierville ("Collierville") terminated the employment of Plaintiff/Appellee William L. Boone. On March 25, 2016, Mr. Boone filed a complaint in federal district court against Collierville alleging a 42 U.S.C. § 1983 violation and a violation of the Public Employee Political Freedom Act ("PEPFA"). On March 15, 2017, the 1983 claim was dismissed with prejudice, and the PEPFA claim was dismissed without prejudice.

On March 5, 2018, Mr. Boone refiled his PEPFA claim in the Shelby County Chancery Court. Collierville moved to dismiss the complaint on the basis that Mr. Boone failed to file his complaint within 32 days of the dismissal pursuant to 28 U.S.C. § 1367(d). In particular, Collierville argued that Mr. Boone was not entitled to rely on the saving statute, Tennessee Code Annotated section 28-1-115, because application of the saving statute was barred by sovereign immunity. The trial court denied the motion but granted permission to seek an interlocutory appeal. This Court granted the interlocutory appeal on December 3, 2018.

ISSUE PRESENTED

This appeal involves a single issue: whether Mr. Boone was entitled to rely on the saving statute found in Tennessee Code Annotated section 28-1-115 in refiling his PEPFA claim.

STANDARD OF REVIEW

In this case, the trial court denied a motion to dismiss on the basis of the expiration of the statute of limitations. The trial court's decision to grant or deny a motion to dismiss for failure to state a claim is reviewed de novo with no presumption of correctness. Cannon ex rel. Good v. Reddy , 428 S.W.3d 795, 798 (Tenn. 2014). With regard to a motion to dismiss for failure to state a claim, we have explained:

A Rule 12.02(6) motion tests "only the legal sufficiency of the complaint, not the strength of the plaintiff's proof or evidence." Webb v. Nashville Area Habitat for Humanity, Inc. , 346 S.W.3d 422, 426 (Tenn. 2011). The resolution of such a motion is therefore determined by an examination of the pleadings alone. Id. The court should grant the motion to dismiss only if it appears that the plaintiff cannot establish any facts in support of the claim that would warrant relief.

Woodruff by & through Cockrell v. Walker , 542 S.W.3d 486, 493 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Oct. 6, 2017).

To the extent that this case requires that we construe statutes, our review is also de novo. Freeman v. Marco Transp. Co. , 27 S.W.3d 909, 911–12 (Tenn. 2000) ("Issues of statutory construction are questions of law and shall be reviewed de novo without a presumption of correctness."). In construing statutes, we keep the following guidance in mind:

Our resolution of this issue is guided by the familiar rules of statutory construction. Our role is to determine legislative intent and to effectuate legislative purpose. The text of the statute is of primary importance, and the words must be given their natural and ordinary meaning in the context in which they appear and in light of the statute's general purpose. When the language of the statute is clear and unambiguous, courts look no farther to ascertain its meaning. When necessary to resolve a statutory ambiguity or conflict, courts may consider matters beyond the statutory text, including public policy, historical facts relevant to the enactment of the statute, the background and purpose of the statute, and the entire statutory scheme. However, these non-codified external sources "cannot provide a basis for departing from clear codified statutory provisions."

Mills v. Fulmarque, Inc. , 360 S.W.3d 362, 368 (Tenn. 2012) (citations omitted).

DISCUSSION

Mr. Boone brought his claim against Collierville for a violation of PEPFA, Tennessee Code Annotated section 8-50-601 through -604. Section 8-50-601 provides that "[n]o public employee shall be prohibited from communicating with an elected public official for any job-related purpose whatsoever." Under section 8-50-602, it is therefore "unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee's right to communicate with an elected public official." Tenn. Code Ann. § 8-50-602(a). At the time of the commencement of this action, PEPFA further provided that where "a public employer has disciplined, threatened to discipline or otherwise discriminated against an employee because such employee exercised the rights provided by this part, such employee shall be entitled to treble damages plus reasonable attorney fees." Tenn. Code Ann. § 8-50-603(b) (2018).¹

Although PEPFA does not contain an internal statute of limitations, Mr. Boone concedes that a PEPFA action is governed by the one-year statute of limitations contained in Tennessee Code Annotated section 28-3-104(a). See also Weber v. Moses , 938 S.W.2d 387, 393 (Tenn. 1996) (citing Tenn. Code Ann. § 28-3-104 ) ("A claim for retaliatory discharge is a tort action which is governed by the general tort statute of limitations which requires that a lawsuit be ‘commenced within one (1) year after the cause of action accrued....’ "). Here, Mr. Boone's state court complaint was undisputedly filed more than a year following the accrual of his action. As such, his claim is barred by the applicable statute of limitations unless another provision of law "saves" his claim.

In refiling his complaint within one year of the dismissal without prejudice of his federal lawsuit, Mr. Boone relies on the application of Tennessee Code Annotated section 28-1-115, a saving statute of general application. See Lynn v. City of Jackson , 63 S.W.3d 332, 337 (Tenn. 2001) (describing section 28-1-115 as a "general saving[ ] statute"). Section 28-1-115 provides that "[n]otwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court." Collierville contends, however, that because of Collierville's sovereign immunity, this saving statute is inapplicable to Mr. Boone's claim.

"The doctrine of sovereign immunity ... provides that suit may not be brought against the government unless the government has consented to be sued[.]" Sneed v. City of Red Bank, Tennessee , 459 S.W.3d 17, 23 (Tenn. 2014) (citing Tenn. Const. art. I, § 17 ). Under this doctrine, " ‘governmental entities may prescribe the terms and conditions under which they consent to be sued, ... including when, in what forum, and in what manner suit may be brought.’ " Id. (quoting Cruse v. City of Columbia , 922 S.W.2d 492, 495 (Tenn. 1996) ). For purposes of sovereign immunity, the State or government "includes ‘the departments, commissions, boards, institutions and municipalities of the State.’ " Davidson v. Lewis Bros. Bakery , 227 S.W.3d 17, 19 (Tenn. 2007) (quoting Metro. Gov't of Nashville & Davidson County v. Allen , 220 Tenn. 222, 415 S.W.2d 632, 635 (Tenn. 1967) ).

This Court has previously noted that "sovereign immunity plays an important role when determining the application of a general saving statute to claims ... against a State entity." Whitmore v. Shelby Cty. Gov't , No. W2010-01890-COA-R3-CV, 2011 WL 3558285, at *2 (Tenn. Ct. App. Aug. 15, 2011). As such, sovereign immunity prohibits actions against the State "unless the legislature has abrogated or waived immunity." Id. "[A]ny abrogation of the immunity doctrine by the legislature must be set out in ‘plain, clear, and unmistakable terms.’ " Wells v. Tenn. Bd. of Regents , 231 S.W.3d 912, 917 (Tenn. 2007) (quoting Northland Ins. Co. v. State , 33 S.W.3d 727, 731 (Tenn. 2000) ). " ‘[G]eneral statutes do not apply to, or affect, the State, unless they expressly so provide[.]’ " Lynn v. City of Jackson , 63 S.W.3d 332, 337 (Tenn. 2001) (quoting Automobile Sales Co. v. Johnson , 174 Tenn. 38, 49–50, 122 S.W.2d 453, 458 (1938) ). Although Tennessee courts have not had the opportunity to determine whether the general saving statute contained in section 28-1-115 applies to claims under PEPFA, Tennessee courts have nearly consistently held that saving statutes of general application are inapplicable to claims against the State because "the legislature has [not] clearly and unmistakably demonstrated an intent for the saving statute to apply." Whitmore , 2011 WL 3558285, at *3 ; see also, e.g. , Davidson v. Lewis Bros. Bakery , 227 S.W.3d 17 (Tenn. 2007) (declining to apply a saving statute to a claim against a State division); Nance v. City of Knoxville , 883 S.W.2d 629, 631 (Tenn. Ct. App. 1994) (citing a number of Tennessee Supreme Court cases in which a saving statute was not applied to a claim...