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Fitzgerald v. Hickman County Government

Court of Appeals of Tennessee, Nashville

April 4, 2018

DAVID R. FITZGERALD
v.
HICKMAN COUNTY GOVERNMENT, ET AL.

         Session March 14, 2018

          Appeal from the Circuit Court for Hickman County No. 16CV-2 Joseph Woodruff, Judge

         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

          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.

          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.

          OPINION

          J. STEVEN STAFFORD, JUDGE.

         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 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).

         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,

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]

         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

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-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, 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 ...


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