                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                          October 23, 2007 Session

                   MARTHA SMITH, ET AL. v. GREG BROOKS, ET AL.

                             Appeal from the Circuit Court for Polk County
                               No. CV-06-085     John B. Hagler, Judge



                    No. E2007-00372- COA-R3-CV - FILED JANUARY 30, 2008


In 2005, Martha Smith and her husband, Brian D. Smith, filed suit (“the First Lawsuit”) in the trial
court against four individuals and the Polk County Board of Education (“PCBE”). Each of the four
counts in the complaint includes an allegation that defendants Greg Brooks, Tracy McAbee, and
Grady Samples “were acting in their official capacity while engaging in their illegal and tortious
activity and . . . these defendants . . . are duly elected members of PCBE.” An order of voluntary
nonsuit without prejudice was entered in the First Lawsuit as to PCBE and all of the individual
defendants except a non-board member, Shane Wooten.1 In 2006, the plaintiffs again filed suit (“the
Second Lawsuit”). The “illegal and tortious activity” alleged in the Second Lawsuit is identical to
that alleged in the First Lawsuit. The Second Lawsuit names Brooks, McAbee, and Samples (“the
defendants”) as the sole defendants. They are sued as individuals and not as members of PCBE. The
defendants filed a motion to dismiss – citing Tenn. R. Civ. P. 12.02(6) – asserting that the Second
Lawsuit had been filed outside the period of the applicable statute of limitations. The trial court
agreed and dismissed the Second Lawsuit. The plaintiffs appeal, relying upon Tenn. Code Ann. §
28-1-105(a) (2000), a part of the so-called Tennessee saving statute. We hold that, under the facts
of this case, the saving statute is not available to the plaintiffs to preserve their causes of action
against the defendants in their individual capacities. Accordingly, we affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

J. D. Lee and Travis E. Venable, Knoxville, Tennessee, for the appellants, Martha Smith and Brian
D. Smith.

Peggy L. Tolson, Brentwood, Tennessee, for the appellees, Greg Brooks, Tracy McAbee, and Grady
Samples.

       1
           The briefs indicate that the First Lawsuit against W ooten is still pending.
                                             OPINION

                                                  I.

        The First Lawsuit was filed on June 13, 2005. In a “Preliminary Statement” at the beginning
of the complaint, the plaintiffs alleged as follows:

               The gravamen of Plaintiffs’ complaint is that upon information and
               belief, Defendants Greg Brooks . . . , Tracy McAbee . . . , Grady
               Samples . . . , duly elected members of the Polk County Board of
               Education . . . , and Shane Wooten . . . , a resident of Polk County and
               friend of McAbee, conspired with each other and possibly others to
               deprive Martha Smith of her teaching position with PCBE by
               spreading patently false and malicious rumors about her to various
               members of PCBE, its employees, and members of the community at
               large, thereby creating a hostile work environment, which exacerbated
               Martha Smith’s pre-existing mental disability, resulting in her being
               unable to continue her employment. It is further alleged upon
               information and belief that it was the desire of Brooks, McAbee, and
               Samples that their illegal, conspiratorial, malicious, intentional,
               outrageous, and depraved actions would effectuate the resignation of
               Martha Smith’s father, Tom Hunt . . . , from PCBE because, they
               believed, his daughter’s mental breakdown would cause him to
               dedicate all his time and resources to helping her.

(Paragraph numbering in original omitted). The “Causes of Action” in the complaint were labeled
thusly:

               COUNT I – Tennessee Governmental Tort Liability Act Pursuant to
               T.C.A. § 29-20-101/Tennessee Common Law – Outrageous
               Conduct/Intentional Infliction of Emotional Distress.

               COUNT II – Tennessee Governmental Tort Liability Act Pursuant to
               T.C.A. § 29-20-101/Tennessee Common Law – Defamation/
               Slander/Libel/False Light

               COUNT III – Tennessee Governmental Tort Liability Act Pursuant
               to T.C.A. § 29-20-101/Tennessee Common Law – Civil Conspiracy

               COUNT IV – Assault – Tennessee Common Law




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(Capitalization in original omitted). In Count I, the plaintiffs specifically alleged – in order to justify
their suit against PCBE – that the defendants were “acting in their official capacity while engaging
in their illegal and tortious activity.” That allegation is found in Count I of the complaint in the First
Lawsuit. That specific allegation was incorporated, by reference, into Counts II, III, and IV. All of
the defendants were named as actors in Count I, II, and III. Count IV only named the defendant
Samples.

        On July 14, 2005, a notice of voluntary dismissal “without prejudice” was filed by the
plaintiffs as to the defendants and PCBE. An order of voluntary dismissal was entered as to the same
parties on March 16, 2006. On July 6, 2006, the plaintiffs filed the Second Lawsuit naming Brooks,
McAbee, and Samples as the sole defendants. The complaint in the Second Lawsuit alleges that the
defendants are being sued in their individual capacities. It is undisputed that the “illegal and tortious
activity” alleged in the Second Lawsuit occurred more than one year prior to its filing.

       The defendants filed a motion to dismiss, asserting, as their basis, Tenn. R. Civ. P. 12.02(6).
They claimed that the Second Lawsuit was subject to dismissal because it was filed outside the
period of limitations set forth in Tenn. Code Ann. § 29-20-305(b) (2000),2 a part of the Tennessee
Governmental Tort Liability Act (“the GTLA”).

       The trial court dismissed the Second Lawsuit, finding that the first lawsuit named the
defendants in their official capacities; that the saving statute, Tenn. Code Ann. § 28-1-105(a), does
not apply to suits filed under the GTLA; and that the Second Lawsuit is different from the First
Lawsuit in that the latter is a suit against the defendants in their individual capacities while the First
Lawsuit was against them in their official capacities.

        This appeal followed.

                                                         II.

        The sole issue raised by the plaintiffs – as taken verbatim from their brief – is an follows:

                   Whether trial court incorrectly granted a dismissal in favor of
                   Defendants/Appellees, Greg Brooks, Tracy McAbee and Grady
                   Samples, as they were sued in their individual capacity, not in their
                   employment capacity, and as such does the savings statute therefore
                   apply allowing Plaintiffs/Appellants, Martha Smith and husband
                   Brian D. Smith, to re-file their complaint after voluntarily dismissing
                   said Defendants/Appellees without prejudice.


        2
            Tenn. Code Ann. § 29-20-305(b) provides as follows:

                   The action must be commenced within twelve (12) months after the cause of action
                   arises.

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The plaintiffs argue only one point in support of their issue. They vigorously assert that they can rely
upon the saving statute because, according to them, the defendants were not sued in the First Lawsuit
as members of PCBE but rather as individuals totally unrelated to their board membership. Thus,
they argue, this case is not controlled by the well-established principle that the saving statute “do[es]
not apply to extend the time for bringing claims under the GTLA.” Lynn v. City of Jackson, 63
S.W.3d 332, 337 (Tenn. 2001).

        We cannot agree with the plaintiffs’ assertion disavowing the notion that the defendants were
sued in the First Lawsuit because of acts committed by them in their official capacities as members
of PCBE. Their own allegations belie this assertion.

        In the first paragraph of the complaint in the First Lawsuit, the plaintiffs identify the
defendants as “duly elected members of the Polk County Board of Education.” In the same
paragraph, they allege that the defendants “conspired with each other [and others] to deprive [the
plaintiff] Martha Smith of her teaching position with PCBE.” According to the complaint, the goal
of the defendants was to “effectuate the resignation of Martha Smith’s father, Tom Hunt . . . , from
PCBE.” The plaintiffs further allege that

                it was the defendants’ intent that the resignation of Hunt would shift
                the political affiliation of the board, resulting in the termination of Dr.
                William Wade (“Wade”), the director of the Polk County Schools,
                and in the hiring of [the defendant] McAbee as Wade’s replacement.

        As can be seen, the plaintiffs allege that the defendants, three board members, conspired to
force the resignation of a teacher employed by the PCBE and to ultimately change the composition
of PCBE so as to facilitate the ascension of one of the defendants – Tracy McAbee – to the position
of director of Polk County Schools. In addition to all of this is the following allegation found in each
of the four counts of the complaint filed in the First Lawsuit:

                PCBE is liable for these tortious actions because Brooks, McAbee
                and Samples were acting in their official capacity while engaging in
                their illegal and tortious activity and because these defendants are not
                employees of PCBE; rather, they are duly elected members of PCBE.

Furthermore, the complaint in the First Lawsuit is devoid of any specific allegation suggesting that
the defendants were being sued in their individual capacities as opposed to, or in addition to, their
official capacities.

      The Second Lawsuit was filed outside the one-year statute of limitations. It is not “saved”
by Tenn. Code Ann. § 28-1-105(a). The plaintiffs’ sole issue is found to be without merit.




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                                               III.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellants
Martha Smith and Brian D. Smith. This case is remanded to the trial court for collection of costs
assessed there, pursuant to applicable law.


                                                      _______________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




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