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Clark v. Metropolitan Government of Nashville & Davidson County

Court of Appeals of Tennessee, Nashville

April 3, 2017

JERRY CLARK
v.
METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY

          Assigned on Briefs: March 1, 2017

         Appeal from the Chancery Court for Davidson County No. 14-1614-IV Russell T. Perkins, Chancellor

         The trial court dismissed the plaintiff's complaint as untimely, in part, due to its determination that the general savings statute, Tenn. Code Ann. § 28-1-105, did not apply. We affirm the decision of the trial court and remand for further proceedings consistent with this Opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Jerry Clark, Dunlap, Tennessee, Pro se.

          J. Brooks Fox and Catherine J. Pham, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          MEMORANDUM OPINION [1]

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History[2]

         The plaintiff in this case, Jerry Clark, was formerly employed by the Metropolitan Government of Nashville and Davidson County ("Metro") as a correctional officer. On October 4, 2012, Mr. Clark was injured by another Metro officer during a training exercise. According to Mr. Clark, his fellow officer "battered" him during the subject training. Following the October 4 incident, Mr. Clark notified his supervisors of his injury, sought medical treatment, and filed a criminal complaint against the officer who had injured him.

         Metro subsequently conducted an investigation into Mr. Clark's allegations, and on October 31, 2012, it submitted a memorandum regarding its findings. In pertinent part, Metro concluded that Mr. Clark's allegations were unfounded. Following a disciplinary panel's recommendation that Mr. Clark be terminated for "dishonesty, " Metro terminated his employment on December 26, 2012.

         Although Mr. Clark filed suit against Metro on June 24, 2013 as a result of his termination, he took a voluntary nonsuit in November 2013. Less than a year later, on November 18, 2014, Mr. Clark re-filed his complaint against Metro, asserting claims for violation of the Tennessee Public Protection Act and common law retaliatory discharge.[3]The re-filed complaint, which is the operative pleading at issue in this appeal, contains a specific recital that it was filed pursuant to the Tennessee savings statute codified at Tennessee Code Annotated section 28-1-105(a).

         On November 25, 2015, Metro filed a motion to dismiss Mr. Clark's complaint for failure to state a claim upon which relief can be granted. Metro's motion contended that Mr. Clark's claims were time-barred for two reasons. First, Metro argued that the savings statute did not apply with respect to governmental entities. Second, Metro argued that because no process had issued in Mr. Clark's lawsuit and over a year had passed since the commencement of the action, Mr. Clark could not rely upon the original commencement of the lawsuit to toll the running of the statute of limitations. The trial court agreed with Metro's ...


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