                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                            Assigned on Briefs October 21, 2015

LISA LYNN ODOM, ET AL v. CLAIBORNE COUNTY, TENNESSEE, ET AL

                   Appeal from the Circuit Court for Claiborne County
                    No. 12-CV-1006     Jon Kerry Blackwood, Judge1


                  No. E2014-02328-COA-R3-CV – Filed March 29, 2016
                         _________________________________

An “affidavit of complaint” was issued against Lisa Odom for custodial interference.
Deputies from the Claiborne County Sheriff‟s Office visited Ms. Odom for the purpose of
taking custody of her child and returning her to Ms. Odom‟s ex-husband, Scott Odom.
Ms. Odom objected to the removal of her child, and William Phipps, Ms. Odom‟s father,
asked to see a warrant prior to the removal of the child. After a prolonged standoff, the
deputies called Assistant District Attorney General Amanda Sammons, who explained
over a speakerphone that a warrant was not necessary because there was a court order for
Ms. Odom to return the child to Mr. Odom. During the course of the phone call, Ms.
Odom overheard General Sammons use derogatory language when referring to her. Ms.
Odom was ultimately arrested for custodial interference. Nearly a year later, Ms. Odom
and Mr. Phipps (collectively the plaintiffs) filed a complaint against General Sammons
alleging intentional infliction of emotional distress and civil conspiracy. General
Sammons filed a motion to dismiss, which the trial court granted. The plaintiffs appeal.
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 D. MICHAEL
SWINEY, C.J., AND JOHN W. MCCLARTY, J., joined.

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Lisa Lynn Odom and
William Phipps.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Mary M. Bers, Senior Counsel, Nashville, Tennessee, for the appellee,
Amanda Sammons.

      1
          Sitting by designation.
                                        OPINION

                                             I.

      The Odoms were divorced on December 2, 2008. One child was born to their
union. Following their divorce, Ms. Odom and Mr. Odom shared custody of the child.
On July 12, 2012, Bill Baumgardner, a sergeant of the Claiborne County Sheriff‟s Office,
executed an affidavit of complaint against Ms. Odom for custodial interference, pursuant
to Tenn. Code Ann. § 39-13-306 (2010). The affidavit of complaint states as follows:

              Affiant, Sgt. B. Baumgardner, found through an investigation
              that [Ms. Odom] and Scott Odom share custody of a minor
              child. Affiant learned that [Ms. Odom] and Scott Odom share
              custody of minor child by guidelines that were set forth by a
              court order. It was found that [Ms. Odom] did commit the
              offense of custodial interference when she removed said
              minor child from the state of Tennessee and into the state of
              California, thus restricting Scott Odom from his entitled,
              court ordered visitation time with said minor child.

Thereafter, on August 7, 2012, deputies from the Claiborne County Sheriff‟s Office went
to the home of William Phipps, where Ms. Odom was living, to take custody of the child.
One of the deputies entered Mr. Phipps‟ home, took custody of the child, and gave the
child to Mr. Odom, who had accompanied the deputies. Ms. Odom protested the removal
of the child, and her father requested that the deputies show them a warrant. After
speaking with Mr. Phipps and Ms. Odom for approximately two hours, the deputies
called General Sammons and put her on a speakerphone. General Sammons explained
over the phone that a warrant was not necessary because there was a court order for Ms.
Odom to return the child to Mr. Odom. At some point while General Sammons was on
speakerphone, Ms. Odom overheard General Sammons call her a “jerk,” refer to her as a
“troublemaker,” and say, “Take that bitch to jail.” Ms. Odom was subsequently
handcuffed and taken to the Claiborne County jail. The custodial interference criminal
charge against Ms. Odom was eventually dismissed.

       On August 5, 2013, the plaintiffs filed a complaint2 against General Sammons
alleging (1) intentional infliction of emotional distress and (2) civil conspiracy in

       2
          The complaint also listed Mr. and Ms. Odom‟s minor child and the State of Tennessee
as plaintiffs. However, the State Attorney General never authorized Ms. Odom and Mr. Phipps
to bring this action in the name of the State. In addition, the complaint named Mr. Odom,

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violation of Tenn. Const. art. I, §§ 7, 8. On September 6, 2013, General Sammons filed a
motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6). On October 1, 2014, the
plaintiffs filed a motion to amend their complaint to add allegations that General
Sammons‟ secretary had a “social relationship” with Mr. Odom and that General
Sammons “prosecuted multiple prior criminal proceedings instituted by [Mr.] Odom that
were all dismissed.” The trial court entered an order on October 6, 2014, allowing the
amendments.

        On October 23, 2014, the trial court filed its findings and conclusions. With
respect to the intentional infliction of emotional distress claim against General Sammons,
the trial court stated:

              Because mere insults do not rise to the level of outrageous
              conduct required for an intentional infliction of emotional
              distress claim and because the Complaint fails to allege
              anything concerning General Sammons beyond the allegation
              that she called Ms. Odom a “jerk,” “trouble maker,” and said
              “take the bitch to jail,” the [p]laintiff[s] have failed to state a
              claim for intentional infliction of emotional distress against
              General Sammons.

As for the civil conspiracy charge against General Sammons, the trial court concluded,

              Tennessee courts have continuously determined that Tenn.
              Const. [a]rt. I, § 17 does not create a substantive right, only a
              “mechanism by which a citizen may redress grievances.”
              State ex rel. Moncier [v. Jones], [No. M2012-01429-COA-
              R3-CV], 2013 WL 2492648, [at] *6 (Tenn. Ct. App. [Nov.
              13,] 2013); see Staples v. Brown, 85 S.W. 254 (Tenn. 1905).
              In State ex rel. Moncier, the Court specifically declined to
              hold that Article [I], Section 17 creates a substantive cause of
              action to enforce other constitutional provisions or laws. Id.
              This [c]ourt declines to reject this long standing rule in



Claiborne County, Sheriff Baumgartner, multiple deputies from the Claiborne County Sheriff‟s
Office, and Arthur J. Gallagher, Risk Management Services, Inc. as defendants. General
Sammons is the only defendant named in either the original complaint or the first amended
complaint who is a party to this appeal. Accordingly, we will only discuss the allegations
pertinent to General Sammons.

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                Tennessee that there is no implied cause of action based on
                violations of the Tennessee Constitution.

                Further, assuming that General Sammons was acting in
                conspiracy to violate [p]laintiffs‟ [c]onstitutional rights, she is
                entitled to a prosecutor‟s immunity, as an assistant district
                attorney general, from damages arising from her initiation and
                pursuit of a prosecution. See Simmons v. Gath Baptist
                Church, 109 S.W.3d 370 (Tenn. Ct. App. 2003); Willett v.
                Ford, 603 S.W.2d 143 (Tenn. Ct. App. 1979). Therefore,
                [p]laintiff[s] have failed to state a claim for which relief can
                be granted for civil conspiracy against General Sammons.

Accordingly, the trial court granted General Sammons‟ motion to dismiss.

                                                II.

          The plaintiffs filed a notice of appeal on November 21, 2014, raising the following
issues:

                Whether the trial court erred by granting General Sammons‟
                Tenn. R. Civ. P. 12.02(6) motion to dismiss the plaintiffs‟
                claims of intentional infliction of emotional distress.

                Whether the plaintiffs have a cause of action for injuries
                caused by General Sammons as a state actor for violating Ms.
                Odom‟s rights provided her by Tennessee‟s Constitution.

                Whether General Sammons has absolute prosecutorial
                immunity.

                Whether General Sammons is individually liable.

                                               III.

        On the issue of a Tenn. R. Civ. P. 12.02(6) motion to dismiss, we are guided by
the following principles as articulated by the Supreme Court:

                 A Rule 12.02(6) motion challenges only the legal sufficiency
                of the complaint, not the strength of the plaintiff‟s proof or

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evidence. Highwoods Props., Inc. v. City of Memphis, 297
S.W.3d 695, 700 (Tenn. 2009); Willis v. Tenn. Dep't of
Corr., 113 S.W.3d 706, 710 (Tenn. 2003); Bell ex rel. Snyder
v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg,
P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Sanders v.
Vinson, 558 S.W.2d 838, 840 (Tenn. 1977)). The resolution
of a 12.02(6) motion to dismiss is determined by an
examination of the pleadings alone. Leggett v. Duke Energy
Corp., 308 S.W.3d 843, 851 (Tenn. 2010); Trau-Med of Am.,
Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002);
Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878
S.W.2d 934, 938 (Tenn. 1994); Cornpropst v. Sloan, 528
S.W.2d 188, 190 (Tenn. 1975). A defendant who files a
motion to dismiss “ „admits the truth of all of the relevant and
material allegations contained in the complaint, but . . .
asserts that the allegations fail to establish a cause of
action.‟ ” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d
850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v.
Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005)); see
Edwards v. Allen, 216 S.W.3d 278, 284 (Tenn. 2007); White
v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn.
2000); Holloway v. Putnam Cnty., 534 S.W.2d 292, 296
(Tenn. 1976).

In considering a motion to dismiss, courts “ „must construe
the complaint liberally, presuming all factual allegations to be
true and giving the plaintiff the benefit of all reasonable
inferences.‟ ” Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-
32 (Tenn. 2007) (quoting Trau-Med, 71 S.W.3d at 696); see
Leach v. Taylor, 124 S.W.3d 87, 92-93 (Tenn. 2004); Stein v.
Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997);
Bellar v. Baptist Hosp., Inc., 559 S.W.2d 788, 790 (Tenn.
1978); see also City of Brentwood v. Metro. Bd. of Zoning
Appeals, 149 S.W.3d 49, 54 (Tenn. Ct. App. 2004) (holding
that courts “must construe the complaint liberally in favor of
the plaintiff by . . . giving the plaintiff the benefit of all the
inferences that can be reasonably drawn from the pleaded
facts”). A trial court should grant a motion to dismiss “only
when it appears that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief.”

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              Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857
              (Tenn. 2002); see Lanier v. Rains, 229 S.W.3d 656, 660
              (Tenn. 2007); Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
              1999); Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d
              690, 691 (Tenn. 1984); Fuerst v. Methodist Hosp. S., 566
              S.W.2d 847, 848 (Tenn. 1978); Ladd v. Roane Hosiery,
              Inc., 556 S.W.2d 758, 759–60 (Tenn. 1977). We review the
              trial court‟s legal conclusions regarding the adequacy of the
              complaint de novo. Brown, 328 S.W.3d at 855; Stein, 945
              S.W.2d at 716.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

                                             IV.

         The plaintiffs have alleged that General Sammons is guilty of intentional infliction
of emotional distress. “The elements of an intentional infliction of emotional distress
claim are that the defendant‟s conduct was (1) intentional or reckless, (2) so outrageous
that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the
plaintiff.” Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (citing
Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004)); Leach v. Taylor, 124
S.W.3d 87, 92 (Tenn. 2004); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). When
determining whether particular conduct is so outrageous that it is not tolerated by
civilized society, “the test often used by our courts is the one found in the Restatement
(Second) of Torts § 46 comment d (1964).” Alexander v. Inman, 825 S.W.2d 102, 105
(Tenn. Ct. App. 1991). Comment d states that,

              [t]he cases thus far decided have found liability only where
              the defendant‟s conduct has been extreme and outrageous. It
              has not been enough that the defendant has acted with an
              intent which is tortious or even criminal, or that he has
              intended to inflict emotional distress, or even that his conduct
              has been characterized by “malice,” or a degree of
              aggravation which would entitle the plaintiff to punitive
              damages for another tort. Liability has been found only where
              the conduct has been so outrageous, as to go beyond all
              possible bounds of decency, and to be regarded as atrocious,
              and utterly intolerable in a civilized community. Generally,
              the case is one in which the recitation of the facts to an
              average member of the community would arouse his

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              resentment against the actor, and lead him to exclaim,
              “Outrageous!”

              The liability clearly does not extend to mere insults,
              indignities, threats, annoyances, petty oppressions, or other
              trivialities. The rough edges of our society are still in need of
              a good deal of filing down, and in the meantime plaintiffs
              must necessarily be expected and required to be hardened to a
              certain amount of rough language, and to occasional acts that
              are definitely inconsiderate and unkind. There is no occasion
              for the law to intervene in every case where some one’s
              feelings are hurt. There must still be freedom to express an
              unflattering opinion, and some safety valve must be left
              through which irascible tempers may blow off relatively
              harmless steam. It is only where there is a special relation
              between the parties, as stated in § 48, that there may be
              recovery for insults not amounting to extreme outrage.

Restatement (Second) of Torts § 46 cmt. d (emphasis added and internal citation
omitted).

        In the present case, the plaintiffs‟ intentional infliction of emotional distress claim
against General Sammons hinges on three separate comments concerning Ms. Odom.
Specifically, the plaintiffs allege that General Sammons called Ms. Odom a “jerk,” a
“troublemaker,” and a “bitch.” While all three of these comments were derogatory and
inappropriate in nature, none of them rise to the high standard of outrageousness
necessary to sustain a claim for intentional infliction of emotional distress. As the
Restatement makes clear, “liability . . . does not extend to mere insults, indignities . . . or
other trivialities.” That is what we are dealing with in this case. Accordingly, the
plaintiffs have failed to state a claim for which relief can be granted for intentional
infliction of emotional distress by General Sammons, and the trial court correctly
dismissed this claim.

                                              V.

       The plaintiffs next argue that General Sammons “participated in a civil conspiracy
to violate [Ms. Odom‟s] rights provided her by the Tennessee Constitution in Art. I, § 7
and Art. I, § 8.” The plaintiffs contend that they are entitled to bring such a claim




                                              7
pursuant to Tenn. Const. art. I, § 17.3 The trial court disposed of the conspiracy charge
against General Sammons by noting that “Tennessee courts have continuously
determined that Tenn. Const. Art. I, § 17 does not create a substantive right, only a
mechanism by which a citizen may redress grievances.” (Internal citation and quotation
marks omitted.) The trial court concluded that “there is no implied cause of action based
on violations of the Tennessee Constitution.”

       As noted by the trial court, this Court has previously addressed the issue of
whether Tenn. Const. art. I, § 17 creates a cause of action for violations of other
constitutional provisions. In State ex re. Moncier v. Jones, we stated that,

              [t]he trial court held that there is no private cause of action for
              damages based on violations of the Tennessee Constitution
              and accordingly dismissed the claims of violation of the
              Tennessee Constitution. On appeal, Mr. Moncier argues that
              Article [I], Section 17 grants him a cause of action against
              Ms. Jones for “violations of other Bill of Rights in
              Tennessee‟s constitution; violation of Tennessee statutes;
              violations of Tennessee rules; and violations of Tennessee
              established torts.” We have reviewed the cases cited by Mr.
              Moncier and considered his argument and decline to hold
              that Article [I], Section 17 creates a substantive cause of
              action to enforce other constitutional provisions or law.

              Article I, Section 17 was before the court in Staples v.
              Brown, an action involving the contest of an election to the
              position of city attorney of Harriman; the initial challenge
              was heard by the city council, which accepted the results and
              dismissed the contest. The contestant‟s appeal to the Roane
              County circuit court was dismissed because the statute which
              vested the city council with jurisdiction to try the contest did
              not provide for an appeal. On appeal, our Supreme Court
              reversed the trial court; with respect to Article I, Section 17,
              the court stated:


       3
         “That all courts shall be open; and 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. Suits may be brought against the State in such
manner and in such courts as the Legislature may by law direct.” Tenn. Const. art. I, § 17.

                                              8
                     The Constitution (article [I], § 17) provides that
                     all courts shall be open, and every man having
                     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.

                     The obvious meaning of this is that there shall
                     be established courts proceedings according to
                     the course of the common law, or some system
                     of well established judicature, to which all of
                     the citizens of the state may resort for the
                     enforcement of rights denied, or redress of
                     wrongs done them.

              Staples [v. Brown], 85 S.W. 254, 255 ([Tenn.] 1905). The
              court proceeded to discuss the appropriate court and
              procedure to hear the appeal of the contest and remanded the
              case to the circuit court for retrial on the merits. The case
              stands for the proposition that the constitutional provision
              does not create a right but, rather, requires a mechanism by
              which a citizen may redress grievances.

State ex rel. Moncier v. Jones, No. M2012-01429-COA-R3-CV, 2013 WL 2492648, at
*6 (Tenn. Ct. App. M.S., filed June 6, 2013), perm app. denied (Tenn. Nov. 13, 2013)
(emphasis added). We reiterate the holdings of Staples and State ex rel. Moncier. The
plaintiffs are attempting to expand the language of Tenn. Const. art. I, § 17 so as to find a
substantive right that simply does not exist. The trial court was correct in declining to
find an implied cause of action in Tenn. Const. art. I, § 17 based on violations of the
Tennessee Constitution. We agree with the trial court‟s conclusion that the plaintiffs
have failed to state a claim for which relief can be granted for civil conspiracy against
General Sammons.

                                            VI.

       The plaintiffs have raised two additional issues: (1) whether General Sammons has
absolute prosecutorial immunity and (2) whether General Sammons is individually liable.
We have already affirmed the trial court‟s dismissal of the plaintiffs‟ claims against
General Sammons for intentional infliction of emotional distress and civil conspiracy.



                                             9
Accordingly, it is unnecessary to analyze the issues of prosecutorial immunity and
individual liability, and those issues are pretermitted.

                                          VII.

       The trial court‟s grant of Ms. Sammons‟ motion to dismiss is affirmed. Costs on
appeal are assessed to the appellants, Lisa Lynn Odom and William Phipps. This case is
remanded, pursuant to applicable law, for collection of costs assessed by the trial court.


                                                  _______________________________
                                                  CHARLES D. SUSANO, JR., JUDGE




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