                  IN THE COURT OF APPEALS OF TENNESSEE

                                    AT KNOXVILLE




ROY R. FERGUSON,                             ) C/A NO. 03A01-9902-CV-00038
                                             )
       Plaintiff-A ppellant,                 ) ROAN E CIRC UIT
                                             )
v.                                           ) HON . RUS SELL SIMM ONS , JR.,
                                             ) JUDGE
SHERRY HOPPE, DONNA PIERCE,                  )
AND HAROLD L. UNDERWOOD,                     ) AFFIRMED
                                             ) AND
       Defendants-Appellees.                 ) REMANDED




JERROLD L. BECKER and SAMUEL W. BROWN, BECKER, THOMFORDE,
BRO WN & KNIG HT, P.C ., Knoxville , for Plaintiff-A ppellant.

PAU L G. S UM MER S, Atto rney Ge neral an d Rep orter,
MICHAEL E. MOORE, Solicitor general, and
MICHA EL W. CA TALAN O, Associate Solicitor General, Nashville, for Defendants-
Appellees.




                                       O P I N IO N


                                                            Franks, J.


                In this action, the Trial Court dismissed the plaintiff’s complaint, and he

has appealed.

                Appellant Roy Ferg uson was em ployed as an Assistant Profe ssor/

Progra m Dire ctor for the Op ticianry Pr ogram at Roa ne State Com munity C ollege.

Ferguson applied for, but did not receive, tenure in 1993. He applied again in 1994

and wa s again den ied. Defe ndant, Dr. D onna Pier ce, Assoc iate Dean for Hea lth

Services, rec ommen ded that ap pellant’s con tract not be re newed , and Roa ne State

ultimately decide d not to rene w appe llant’s contrac t.

                Appellan t’s complain t against Pierc e, Dr. Sherr y Hoppe a nd Dr. H arold
Underwood alleged claims of civil conspiracy, defamation and tortious interference

with prosp ective econ omic adv antage. It esse ntially alleges that the defenda nts

conspired to prevent h is promotion and gra nt of tenure and m ade defamatory

statements regarding his performance and conduct. Appellant also filed a complaint

with the Division of Claims Administration in May 1996. The complaint was

transferred to the Tennessee Claims Commission and filed August 16, 1996. On

January 30, 1998, the defendants moved to dismiss the Circuit Court complaint for

failure to state a claim upo n which relief can be granted. A ppellant filed a Motion to

Amend his complaint seeking to substitute a claim for tortious interference with a

contractual relationship in place of the claim for tortious interference with prospective

econo mic ad vantag e.

               On August 27, 1998, the Trial Court held that Ferguson failed to state a

claim for defamation and was further barred by the statute of limitations. The

Court also held that appellant failed to state a claim for civil conspiracy because he

did not allege any overt act by the defendants. Finally, the Trial Court held that

appellant’s a ttempt to am end his co mplaint still alleg ed only tortious in terference w ith

prospe ctive ec onom ic adva ntage w hich is n ot recog nized in Tenn essee.

               Our review o f the record comp els us to conclude that the T rial Court

proper ly dismisse d the co mplain t althoug h it unn ecessa rily decide d sever al issues .

The familiar Rule applicable here is that if a trial court properly decides the case, but

gives the w rong reaso ns, it will neces sarily be upheld on appea l.

               T.C.A. §9-8-307(b) is applicable in this case:

               Claims against the state filed pursuant to subsection (a) shall operate as
               a waiver of any cause of action, based on the same act or omission,
               which the claimant has against any state officer or employee. The waiver
               is void if the commission determines that the act or omission was not
               within the sc ope of the officer’s or employee’s o ffice or em ployment.

No pu blished Tenn essee c ase add ressing this sectio n has b een ca lled to ou r attentio n.


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In White v. G erbitz, 860 F .2d 661 (6th Ci r. 1988 ), cert. denied, 489 U .S. 102 8 (198 8),

the Sixth Circuit determined that the plaintiff waived his federal civil rights claims by

filing with the Tennessee Claims Commission. The court addressed the operation of

T.C.A. § 9-8-30 7(b):

               [T]he Tennessee Claims Commission has not yet addressed the
               merits of plaintiff’s claim. If the claims commission concluded
               that the defe ndants’ acts were ou tside the scop e of their
               employment, the plaintiff would be free to pursue a cause of
               action in federal court as no waiver would have occurred . . . We
               find the district court erred in not dismissing the plaintiff’s
               federal cause of action and remand with instructions to the
               district court to e nter an orde r of dismissa l. This order s hould
               provide that in the event the waiver provision of the Tennessee
               statute is not invoked due to the defendants’ acts being deemed
               outside the scope of their employment, the plaintiff may present
               an order w ithin sixty (60) days o f the state actio n reinstating h is
               claims to the federal district court’s docket. Accordingly, inherent
               in our holding is that the statute of limitations on plaintiff’s
               federal cause of action is tolled in the interim.

Id. at 665.

               In this case, the appellant has filed a claim with the Tennessee Claims

Commission. In that claim he alleges that the State “is being sued on account of the

actions of” the defendants. Thus, appellant has waived any claims against the

defendants in the Circuit Court unless the Claims Commission determines that

defen dants’ a ctions w ere outs ide the s cope o f their em ploymen t. White is persuasive

on this is sue. See also S mithson v . State, 1991 WL 95691 (Tenn.App.)(citing White).

               Appellan t insists he has n ot waived his claims, an d in suppo rt of this

position he cites Lester v. Walker, 907 S.W.2d 812 (Tenn.App. 1995). The Lester

court noted that “[u]ntil the Board of Claims finds that all of the acts complained of

were within the authority and duties of the defendants as employees of the State of

Tennessee, the pending claim against the state is not conclusive of the rights of

plaintiff against these defendants.” Id. at 815. In Lester, however, the court had

already determ ined that the p laintiff’s failure to state a claim upon w hich relief co uld


                                              3
be granted rendered all other questions “moot.” Id. Thus, the language relied upon by

appellant is dicta. Moreover, the procedure we elect to follow ultimately renders the

same resu lt.

                The appellant also cites the unreported case of Wright v. Seay, 1997 WL

576538 (Tenn.App.). In Wright, however, the plaintiff never filed a claim before the

Claims Commission. Thus, T.C.A. § 9-8-307(b) was not at issue. Moreover, the

Court no ted that White was not applicable to its dec ision. Finally, the Court

interpreted White as holding that “a filing in the claims co mmission waives th e right to

sue in the trial court.” Id. at *2.

                We conclud e that the Trial Court prope rly dismissed appellant’s

complaint, but it should have based the dismissal on T.C.A. §9-8-307(b), and we

remand for the entry of an order in accordance with this Opinion which will provide

that in the event the Com mission should con clude that the acts of the def endants were

outside their scope of employment, then the plaintiff may within sixty days of such

decision upon app lication, be permitted to reinstate his action to the T rial Court’s

docket.

                The cost o f the appe al is assessed to the appellan t.




                                              __________________________
                                              Herschel P. Franks, J.
CONCUR:




___________________________
Houston M. Godd ard, P.J.


___________________________
William H. Inman, Sr.J.




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