                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                     October 26, 2016 Session

         MOUFAK SAKAAN v. FEDEX CORPORATION, INC., ET AL.

                      Appeal from the Circuit Court for Shelby County
                        No. CT-001718-5 Rhynette N. Hurd, Judge
                         ___________________________________

                No. W2016-00648-COA-R3-CV – Filed December 21, 2016
                       ___________________________________

The Plaintiff filed suit against a number of corporate and individual Defendants alleging
claims for intentional and negligent misrepresentation. After filing answers to the
complaint, the Defendants moved for judgment on the pleadings on the basis that the
asserted claims were time-barred. The trial court granted the motion and dismissed the
Plaintiff’s case with prejudice. Discerning no error in this decision, we affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

Justin E. Mitchell, Memphis, Tennessee, for the appellant, Moufak Sakaan.

Carl K. Morrison, Memphis, Tennessee, for the appellees, FedEx Corporation, FedEx
Corporate Services, Inc., Chris Wood, Michael Dearen, and Robert Morrison.

                                               OPINION

                              Background and Procedural History1


1
  The basic background facts herein are taken from the Plaintiff’s complaint. Because the trial court
resolved this case by granting a motion for judgment on the pleadings filed by the Defendants, we
presume those facts to be at true at this stage of the proceedings. See McClenahan v. Cooley, 806 S.W.2d
767, 769 (Tenn. 1991) (citing Trigg v. Middle Tenn. Elec. Membership Corp., 533 S.W.2d 730, 732-33
(Tenn. Ct. App. 1975)) (“In light of the fact that this case was dismissed on a motion for judgment on the
pleadings . . . we are bound to treat as false all allegations of the Defendant, the moving party, which are
denied, and as true all well-pleaded allegations contained in the pleadings of the Plaintiff, the opponent of
the motion.”).
       Plaintiff/Appellant Moufak Sakaan (“Mr. Sakaan”) is a former employee of two
FedEx companies, where he worked as a software platform liaison. He was hired at
FedEx Express in 1998, and in 2007, he obtained a transfer to FedEx Corporate Services,
Inc. Both FedEx Express and FedEx Corporate Services, Inc. are wholly-owned
subsidiaries of FedEx Corporation.

       In December 2012, FedEx Corporate Services, Inc. sent Mr. Sakaan a proposed
confidential severance agreement as part of a wide cost-cutting initiative. The proposed
agreement offered Mr. Sakaan a lump sum severance benefit in exchange for voluntarily
ending his employment. Following the offer of the proposed severance agreement, Mr.
Sakaan engaged in a number of conversations with FedEx representatives, as well as his
supervisor, Robert Morrison. Mr. Sakaan was concerned about the ramifications of
accepting the severance package, namely whether it would preclude him from working
on FedEx projects that were either fully or partially staffed through a third-party vendor.
Through these conversations, Mr. Sakaan alleges he was assured that his acceptance of
the severance agreement would not prohibit him from working on FedEx projects sourced
through a third-party vendor. Mr. Sakaan subsequently signed the severance agreement
on March 2, 2013.

       Prior to leaving FedEx, Mr. Sakaan was hired by Tango, a third-party vendor with
an existing FedEx relationship. Tango hired Mr. Sakaan to work on FedEx projects that
were sourced through it. Mr. Sakaan eventually left his employment with FedEx on
November 30, 2013.

      On December 19, 2013, Mr. Sakaan attended a meeting at FedEx as a Tango
employee. While Mr. Sakaan was at the meeting, a member of the FedEx legal team
recognized Mr. Sakaan and identified him as an individual that had accepted the
severance agreement. After this legal team employee notified the litigation team and
other departments about Mr. Sakaan’s participation in the meeting, Mr. Sakaan was
removed from the premises. He has not worked on a FedEx project since that time.

       On April 21, 2015, Mr. Sakaan filed a complaint in the Shelby County Circuit
Court against FedEx Corporation, Inc., FedEx Corporate Services, Inc., and three
individual defendants (collectively, “the Defendants”).2 The complaint asserted claims
for intentional and negligent misrepresentation and alleged that FedEx Corporation
and/or its wholly-owned subsidiaries were vicariously liable for the misrepresentations
made by the individual defendants. In relevant part, the complaint accused the

2
  The complaint also named as Defendants three “John Does,” who had allegedly provided information in
response to Mr. Sakaan’s inquiries about the proposed severance agreement.

                                                -2-
Defendants of making false representations regarding the impact that signing the
severance agreement would have on Mr. Sakaan’s ability to work on FedEx projects.
The complaint averred that Mr. Sakaan was justified in relying on the truth of these
representations when choosing to accept the severance package and stated that the
Defendants’ actions had contributed to a loss of earnings and loss of earning capacity for
Mr. Sakaan. The complaint specifically sought to recover a judgment in the sum of
$600,000.00, plus interest, for the compensatory damages that were alleged to have been
sustained.

        On May 29, 2015, FedEx Corporation, Inc., and FedEx Corporate Services, Inc.,
jointly filed an answer to the complaint. The named individual defendants later filed
their respective answers to the complaint on June 30, 2015. Shortly thereafter, on July
28, 2015, the Defendants collectively moved for judgment on the pleadings pursuant to
Rule 12.03 of the Tennessee Rules of Civil Procedure. In relevant part, the Defendants
argued that the claims asserted in Mr. Sakaan’s complaint were filed outside the
applicable one-year statute of limitations period set forth in Tennessee Code Annotated
section 28-3-104(a)(1).

        On August 7, 2015, Mr. Sakaan filed a response to the Defendants’ motion for
judgment on the pleadings, as well as a motion for partial summary judgment as to his
negligent misrepresentation claim. On November 25, 2015, Mr. Sakaan submitted a
personal affidavit in support of his motion for partial summary judgment, and on
December 4, 2015, he filed a statement of undisputed facts pursuant to Rule 56.03 of the
Tennessee Rules of Civil Procedure. Later, on January 11, 2016, he filed the deposition
of one of the individual defendants. Defendants responded to Mr. Sakaan’s motion for
partial summary judgment on January 21, 2016, arguing, inter alia, that the motion had
been prematurely filed. They submitted that if Mr. Sakaan’s case survived their motion
for judgment on the pleadings, additional time should be afforded to complete discovery.

      A hearing on the Defendants’ motion for judgment on the pleadings took place a
couple of weeks later on February 5, 2016. At the conclusion of the hearing, the trial
judge orally ruled that a one-year statute of limitations applied to Mr. Sakaan’s claims.
An order granting the Defendants’ motion for judgment on the pleadings was
subsequently entered on February 19, 2016. Therein, the trial court specifically
concluded that because the one-year statute of limitations contained in Tennessee Code
Annotated section 28-3-104 applied to Plaintiff’s claims, such claims were time-barred.
Following the trial court’s dismissal of Mr. Sakaan’s claims with prejudice, this appeal
ensued.3

3
 As already noted, the order granting the Defendants’ motion for judgment on the pleadings was entered
on February 19, 2016. Although that order did not comply with Rule 58 of the Tennessee Rules of Civil
                                                -3-
                                          Issues Presented

       In his brief on appeal, Mr. Sakaan designates five issues for our review. Restated
verbatim, these issues are as follows:

    1. Whether the trial court erred in granting Defendants’ Motion for Judgment on the
       Pleadings, on the sole basis of a determination in-error that Plaintiff’s contract-
       based claims somehow sound within a one-year statute of limitations.

    2. Whether the trial court erred in granting Defendants’ Motion for Judgment on the
       Pleadings, by even allowing Defendants to argue the motion: each of the
       Defendants specifically admitted in their separate Answers that the Complaint was
       brought within the applicable statute of limitations, and did not plead any
       affirmative defense with the requisite degree of specificity necessary to overcome
       preclusion on this basis.

    3. Whether the trial court erred in granting Defendants’ Motion for Judgment on the
       Pleadings, given that such a motion is unripe until the pleadings are closed and
       given that the pleadings were not closed in this case.

    4. Whether the trial court erred in granting Defendants’ Motion for Judgment on the
       Pleadings, by failing to apply the mandated Rule 56 standard—having considered
       numerous emails, correspondence, deposition testimony, and other documents
       outside the pleadings.

    5. Whether the trial court erred in granting Defendants’ Motion for Judgment on the
       Pleadings, by entering an order dismissing the case with prejudice, rather than
       without prejudice—given that a prejudicial dismissal forecloses Mr. Sakaan’s right
       to bring a subsequent and separate breach-of-contract action.

      The Defendants articulate two issues in their brief, both of which are aimed at
addressing whether the trial court applied the correct statute of limitations to Mr.
Sakaan’s claims:



Procedure, an amended final order—compliant with Rule 58—was eventually entered by the trial court
during the pendency of this appeal. Therefore, there is no impediment to our exercise of jurisdiction. See
McCurry Expeditions, LLC v. Roberts, 461 S.W.3d 912, 916 n.2 (Tenn. Ct. App. 2014) (noting that
subject matter jurisdiction was properly exercised when the requirements of Rule 58 were satisfied after
oral argument by way of the filing of a supplemental record).
                                                  -4-
   1. Did the Circuit Court correctly conclude that Sakaan’s claims for
      intentional and negligent misrepresentation are based in tort rather than in
      contract?

   2. Did the Circuit Court correctly conclude that Sakaan’s claims are barred by
      the one-year statute of limitations applicable to tort claims for injury to the
      person?

                                        Discussion

        We begin our discussion by addressing the issues raised concerning the validity of
the trial court’s decision to review the Defendants’ motion for judgment on the pleadings
and the method by which the trial court actually conducted its review. As is evident
above, Mr. Sakaan has raised three issues pertaining to these topics. First, he asserts that
the Defendants’ motion should not have been entertained because the Defendants waived
their right to assert a statute of limitations defense. Second, he argues that the motion for
judgment on the pleadings was not ripe for consideration. Third, he argues that the trial
court impermissibly considered matters outside of the pleadings without conducting a
proper summary judgment analysis under Rule 56 of the Tennessee Rules of Civil
Procedure. We do not find merit in any of these arguments.

       Waiver

       In paragraph 12 of Mr. Sakaan’s complaint, he alleged that his “action was
brought within the applicable statutes of limitation and repose for such actions in the
State of Tennessee.” In their answers to Mr. Sakaan’s complaint, each of the Defendants
responded to this paragraph by stating that they admitted the allegation therein, “upon
information and belief.” It appears that such admissions were inadvertent because later in
their answers each of the Defendants specifically asserted that Mr. Sakaan was “barred
from pursuing any actions . . . which are outside the applicable statutes of limitation.”

        According to Mr. Sakaan, the Defendants’ admissions operated to waive their
ability to rely on a statute of limitations defense. Although he acknowledges that the
Defendants’ answers also contained language asserting an affirmative defense predicated
on the statute of limitations, he argues that such language was conclusory and did not
satisfy the specificity requirements of Rule 8.03 of the Tennessee Rules of Civil
Procedure. For the reasons that follow, we disagree with Mr. Sakaan’s position that the
Defendants waived their right to rely on a statute of limitations defense.

      In his reply brief on appeal, Mr. Sakaan correctly cites the law regarding the effect
of admissions contained within a defendant’s answer. It is true that when the allegations
                                            -5-
of a complaint are admitted, “the subject matter thereof is removed as an issue, no proof
is necessary[,] and it becomes conclusive on the parties.” Rast v. Terry, 532 S.W.2d 552,
554 (Tenn. 1976) (citation omitted). Indeed, “[a]dmissions in pleadings are judicial
admissions that are conclusive on the pleader until withdrawn or amended.” Irvin v. City
of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988) (citation omitted). It is
important to recognize, however, that this principle extends to admissions in pleadings
regarding issues of fact. See John P. Saad & Sons, Inc. v. Nashville Thermal Transfer
Corp., 642 S.W.2d 151, 152 (Tenn. Ct. App. 1982) (citation omitted) (“Facts confessed
in pleadings are binding on the parties[.]”). “A party is not ordinarily bound by
admissions or averments of legal conclusions.” Nichols v. Blocker, No. 87-110-II, 1988
WL 39569, at *2 (Tenn. Ct. App. Apr. 29, 1988). In our opinion, Mr. Sakaan’s averment
that his case was “brought within the applicable statutes of limitation and repose for such
actions in the State of Tennessee” amounted to nothing more than a legal conclusion, the
determination of which would properly rest with the trial court. As such, the Defendants’
inadvertent assent to this legal assertion was not controlling. In any event, within the
same answers that Mr. Sakaan finds support for what he contends are binding admissions,
the Defendants raised a statute of limitations defense.

        “A statute of limitations defense challenges the sufficiency of a particular claim,
not the subject matter jurisdiction of the court in which the claim is filed.” Estate of
Brown, 402 S.W.3d 193, 199 (Tenn. 2013) (citation omitted). Accordingly, if the defense
“is not pleaded within the proper time and in the proper manner, it is deemed waived and
cannot be relied upon as a defense.” Steed Realty v. Oveisi, 823 S.W.2d 195, 197 (Tenn.
Ct. App. 1991) (citations omitted). Under Rule 8.03 of the Tennessee Rules of Civil
Procedure, a party seeking to raise certain affirmative defenses, such as the statute of
limitations, must, “[i]n pleading to a preceding pleading . . . set forth affirmatively facts
in short and plain terms relied upon to constitute [the defenses].” Tenn. R. Civ. P. 8.03.
Although Rule 8.03 requires that a statute of limitations defense be specifically pleaded,
the failure to properly plead the defense will not always result in waiver. George v. Bldg.
Materials Corp. of Am., 44 S.W.3d 481, 486-87 (Tenn. 2001) (citations omitted). The
purpose of the specificity requirement under the Rule is to prevent trial by ambush.
Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 554 (Tenn. Ct. App. 2013) (citation
omitted). Thus, even when a party has failed to properly plead the defense, a waiver will
not result if the opposing party has been given sufficient notice of it. As the Tennessee
Supreme Court has explained:

       It is well settled . . . that if the opposing party is given fair notice of the
       defense and an opportunity to rebut it, failure to specifically plead a statute
       of limitations defense will not result in a waiver. [Sands v. State, 903
       S.W.2d 297, 299 (Tenn. 1995)]. “In other words, the purpose of the
       specific pleading requirement is to prevent a party from raising a defense at
                                            -6-
       the last possible moment and thereby prejudicing the opposing party’s
       opportunity to rebut the defense.” Id.

George, 44 S.W.3d at 487.

        We fail to see how the Defendants waived their right to rely on a statute of
limitations defense in this case. Moreover, we fail to discern any reasonable basis for
concluding that Mr. Sakaan has been prejudiced. Although the Defendants’ answers
arguably created some initial ambiguity as to their respective positions on the timeliness
of Mr. Sakaan’s claims, the answers did nonetheless assert a statute of limitations
defense. While we would agree that the presentation of that defense within the answers
was done in a conclusory manner,4 the defense was outlined in detail in the Defendants’
motion for judgment on the pleadings and accompanying memorandum, both of which
were filed less than a month after the last answers in this case were submitted. This is not
a case where the Defendants attempted to assert an affirmative defense on the eve of trial
or failed to apprise Mr. Sakaan of their basis for the defense. Rather, it is clear that Mr.
Sakaan had notice of the statute of limitations defense, and its basis, in the early stages of
the litigation. Under the facts presented, he cannot reasonably claim any prejudice. We
accordingly reject Mr. Sakaan’s assertion that the Defendants’ right to rely on a statute of
limitations defense was waived.

       Ripeness

       We next turn to Mr. Sakaan’s argument that the Defendants’ motion for judgment
on the pleadings was not ripe for consideration. Pursuant to Rule 12.03 of the Tennessee
Rules of Civil Procedure, a motion for judgment on the pleadings may be filed “[a]fter
the pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P.
12.03. The type of pleadings allowed are outlined in Rule 7.01 of the Tennessee Rules of
Civil Procedure:

       There shall be a complaint and an answer; and there shall be a reply to a
       counterclaim denominated as such; an answer to a cross-claim, if the
       answer contains a cross-claim; a third-party complaint, if a person who was
       not an original party is summoned under the provisions of Rule 14; and
       there shall be a third-party answer, if a third-party complaint is served. No
       other pleading shall be allowed, except that the court may order a reply to
       an answer or to a third-party answer.


4
  In pertinent part, the answers simply averred that Mr. Sakaan was “barred from pursuing any actions
alleged in his Complaint which are outside the applicable statutes of limitation.”
                                                -7-
Tenn. R. Civ. P. 7.01. In this case, Mr. Sakaan filed a complaint, and each of the
Defendants filed an answer responding to the allegations asserted against them. No
counterclaims were filed, nor were any cross-claims or third-party complaints. As such,
the pleadings were clearly closed so as to permit a proper motion under Rule 12.03.

       As the Defendants have observed, Mr. Sakaan’s brief appears to suggest that
further discovery was needed before he could respond to the asserted motion for
judgment on the pleadings. Such a suggestion lacks merit. A motion for judgment on the
pleadings involves the consideration of nothing other than what its title suggests; the
motion requests that a court grant judgment based on the pleadings alone. Accordingly,
discovery is not necessary to sharpen any factual issues, and the trial court’s resolution of
the motion is not dependent on anything other than the pleadings.

       Consideration of Matters Outside the Pleadings

       As just noted above, a motion for judgment on the pleadings involves the
consideration of nothing more than the pleadings. However, when matters outside the
pleadings are considered by the trial court in ruling on a motion for judgment on the
pleadings, a different analysis applies. This principle is outlined in the second sentence
of Rule 12.03 of the Tennessee Rules of Civil Procedure:

       If, on a motion for judgment on the pleadings, matters outside the pleadings
       are presented to and not excluded by the court, the motion shall be treated
       as one for summary judgment and disposed of as provided in Rule 56, and
       all parties shall be given reasonable opportunity to present all material
       made pertinent to such a motion by Rule 56.

Tenn. R. Civ. P. 12.03.

       According to Mr. Sakaan, the trial court did not confine itself to the pleadings in
reviewing the Defendants’ motion. As a result, he contends that the trial court’s failure to
conduct a summary judgment analysis constitutes reversible error. In outlining the
alleged instances where the trial court’s review considered matters outside the pleadings,
Mr. Sakaan’s brief recites as follows:

       [T]he trial court considered the transcript of the deposition of defendant
       Robert Morrison, in which he admits to each and all of the elements of
       negligent misrepresentation. The court reviewed emails and other
       correspondence among the parties—including a letter written by Defendant
       Robert Morrison, in which he explains to his superiors why he reassured
       Mr. Sakaan that entering into the [severance agreement] contract would not
                                            -8-
       prevent him from continuing to work on FedEx projects as an employee of
       third-party vendor Tango: an admission that he made negligent
       misrepresentations to Mr. Sakaan about the potential preclusive effect of
       the [severance agreement] contract.

        No doubt, the record transmitted to us on appeal contains the evidentiary materials
referenced by Mr. Sakaan in his brief. We note, however, that these materials were not
submitted in connection with the Defendants’ motion for judgment on the pleadings.
Rather, they were filed by Mr. Sakaan in support of his motion for partial summary
judgment.5 Moreover, contrary to the representations made by Mr. Sakaan, there is no
indication that the trial court considered or relied upon these materials when adjudicating
the Defendants’ motion for judgment on the pleadings. In fact, the evidence in the record
confirms that the trial court restricted its attention to the pleadings alone. For example,
during oral argument before the trial court, Mr. Sakaan’s counsel referenced something
that one of the individual Defendants had admitted in his deposition. Immediately after
this reference, the trial judge stated as follows: “But does it matter, going back to the
same question as before? What I’m looking at is this complaint.” (emphasis added)
Further, when making an oral ruling on the Defendants’ motion for judgment on the
pleadings, the trial judge pronounced as follows: “I have carefully looked at the
complaint, and as pleaded, this is not a breach of contract case. This is a
misrepresentation case. It’s a tort. And the statute of limitations that applies is the one-
year statute of limitations as the subject matter is not property, but the person. And,
therefore, I am granting this motion as a motion to dismiss.” (emphasis added)

        Mr. Sakaan’s assertion that the trial court considered matters outside the pleadings
is not supported by the record. Accordingly, we conclude that the trial court did not err
by failing to conduct a summary judgment analysis under Rule 56 of the Tennessee Rules
of Civil Procedure. Like the other procedural grievances raised by Mr. Sakaan, we find
no merit in Mr. Sakaan’s arguments to the contrary. Because the trial court did not err in
considering the Defendants’ motion for judgment on the pleadings and there is no
indication that its analysis was predicated upon the consideration of impermissible
matters, we now turn our attention to the substantive merits of the trial court’s analysis.

       Trial Court’s Dismissal of Mr. Sakaan’s claims

       As already noted, a motion for judgment on the pleadings may be filed “[a]fter the
pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P.

5
  We, like the Defendants, observe that Mr. Sakaan states inaccurately in his brief that the Defendants
filed the deposition of Defendant Robert Morrison. The record plainly reflects that counsel for Mr.
Sakaan filed this deposition on January 11, 2016.
                                                 -9-
12.03. When a motion for judgment on the pleadings is made by defendants, as is the
case here, “it is in effect a motion to dismiss for failure to state a claim upon which relief
can be granted.” Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009) (citing
Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998)). Such a motion tests the
legal sufficiency of a complaint. It “admits the truth of all relevant and material
averments in the complaint but asserts that such facts cannot constitute a cause of action.”
Id. (citation omitted). “A complaint subject to dismissal based on the expiration of the
statute of limitations fails to state a claim upon which relief can be granted.” Goetz v.
Autin, No. W2015-00063-COA-R3-CV, 2016 WL 537818, at *3 (Tenn. Ct. App. Feb. 10,
2016) (citation omitted), perm. app. denied (Tenn. June 24, 2016). On appeal, we
review a trial court’s decision to grant a motion for judgment on the pleadings de novo,
without a presumption of correctness. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct.
App. 2003) (citation omitted).

        In this case, the trial court dismissed Mr. Sakaan’s claims by determining that they
were time-barred under the one-year statute of limitations contained in Tennessee Code
Annotated section 28-3-104. On appeal, Mr. Sakaan argues that the trial court erred in
applying a one-year limitation period. According to him, his claims were subject to the
six-year limitation period applicable to breach of contract actions, see Tenn. Code Ann. §
28-3-109, or alternatively, the three-year limitation period contained in Tennessee Code
Annotated section 28-3-105. The Defendants, on the other hand, are adamant that the
trial court was correct in determining that the one-year limitation period in Tennessee
Code Annotated section 28-3-104 applied. Having studied the parties’ respective
arguments, we agree with the Defendants that Mr. Sakaan’s claims were subject to a one-
year limitation period.

       In determining the applicable statute of limitations, “courts must ascertain the
gravamen of each claim[.]” Benz-Elliott v. Barrett Enters., LP, 456 S.W.3d 140, 149
(Tenn. 2015) (citations omitted). The gravamen of a claim is its “substantial point” or
“essence.” Black’s Law Dictionary 721 (8th ed. 2004). In order to determine the
gravamen of a claim, a court must “consider both the legal basis of the claim and the
injury for which damages are sought.” Benz-Elliott, 456 S.W.3d at 141.

        We first address Mr. Sakaan’s argument that the six-year statute of limitations
codified at Tennessee Code Annotated section 28-3-109(a)(3) applies to his claims for
relief. See Tenn. Code Ann. § 28-3-109(a)(3) (providing that “[a]ctions on contracts not
otherwise expressly provided for” “shall be commenced within six (6) years after the
cause of action accrued”). This argument can dispensed with rather quickly. Initially, we
note that although this argument was raised in Mr. Sakaan’s appellate brief, he appeared
to abandon it during oral argument before this Court; at that time, Mr. Sakaan simply
submitted that the three-year limitation period in Tennessee Code Annotated section 28-
                                            - 10 -
3-105 applied. Mr. Sakaan also appeared to disclaim any reliance on a six-year limitation
period during the trial court proceedings, where the following exchange occurred:

       The Court: So the statute of limitations to apply then is not a breach of
       contract statute of limitations for six years; is that right?

       [Mr. Sakaan’s counsel]: Not a six-year statute, Your Honor, but the three-
       year statute of limitations.
       In any event, it is clear that the six-year statute of limitations applicable to breach
of contract claims does not apply here. Mr. Sakaan’s complaint did not allege that any
contract had been breached, nor did he seek any relief that would be specifically tailored
to such claims. Rather, the complaint sought to recover compensatory damages allegedly
sustained by Mr. Sakaan due to the Defendants’ tortious conduct, i.e., their intentional
and negligent misrepresentations.

        Having found that a six-year limitation period does not apply to Mr. Sakaan’s
claims, we now shift to the central point of contention in this appeal. Whereas Mr.
Sakaan contends that the three-year limitation period in Tennessee Code Annotated
section 28-3-105 governs his claims, the Defendants argue that Mr. Sakaan’s claims are
governed by the one-year limitation period in Tennessee Code Annotated section 28-3-
104. In addressing which of these respective positions is correct, we must determine
whether the tortious conduct complained of involves an injury solely to Mr. Sakaan’s
person or to his property. If the asserted claims involve an injury to Mr. Sakaan’s person,
the one-year limitation period in Tennessee Code Annotated section 28-3-104 controls.
See Tenn. Code Ann. § 28-3-104(a)(1) (emphasis added) (providing that “[a]ctions for
libel, for injuries to the person, false imprisonment, malicious prosecution, [and] breach
of marriage promise” must be commenced within one year after the cause of action
accrued).6 If, on the other hand, the asserted claims involve an injury to property, they
are subject to the three-year limitation period in Tennessee Code Annotated section 28-3-
105. See Tenn. Code Ann. § 28-3-105(1) (providing that “[a]ctions for injuries to
personal or real property” must be commenced within three years from the accruing of
the cause of action).

       Like the trial court, we conclude that Mr. Sakaan’s claims were subject to the one-
year limitation period contained in Tennessee Code Annotated section 28-3-104. The
allegations in the complaint are indicative of a tort to the person, not a tort involving an
injury to a property interest. Indeed, whereas Mr. Sakaan seeks to recover for a loss of
6
 The language of (a) was slightly altered and redesignated as (a)(1)(A)-(C) by way of a 2015 statutory
amendment, which applies to causes of action accruing on or after July 1, 2015. See 2015 Tenn. Pub.
Acts, ch. 388.
                                               - 11 -
earnings and loss of earning capacity, there is no allegation that he had any type of
property right to continue working on FedEx projects. Based on the facts in the
complaint, it is clear that the alleged injuries are injuries to the person; again, there are no
allegations reflecting that a vested contractual or property interest of Mr. Sakaan’s had
been damaged.

        Because our review of the pleadings shows that the alleged loss is not related to
any property right, the trial court was correct in concluding that Mr. Sakaan’s
misrepresentation claims were subject to the statute of limitations period contained in
Tennessee Code Annotated section 28-3-104. Moreover, the trial court did not err in
concluding that Mr. Sakaan’s claims were time-barred. As already detailed, following
his departure from FedEx, on December 19, 2013, Mr. Sakaan attended a FedEx meeting
as a Tango employee. It was on that date that he was removed from the premises and
should have realized that the Defendants’ alleged assurances to him were false. Because
Mr. Sakaan did not file his complaint for damages until April 21, 2015, the trial court did
not err in dismissing his claims as untimely.

       Dismissal with Prejudice

        Lastly, we address Mr. Sakaan’s argument that the trial court erred in dismissing
his claims with prejudice. According to Mr. Sakaan, this Court should remand the case to
the trial court for the entry of an order without prejudice so as to allow him to properly
resubmit his claims and have them adjudicated. We reject Mr. Sakaan’s assertion of error
on this issue. The dismissal of a case on account of the statute of limitations is an
adjudication upon the merits of the case. See Hippe v. Miller & Martin, PLLC, No.
M2014-01184-COA-R3-CV, 2015 WL 2257175, at *3 (Tenn. Ct. App. May 12, 2015),
perm. app. denied (Tenn. Sept. 17, 2015). The trial court’s dismissal of Mr. Sakaan’s
claims with prejudice is hereby affirmed.

                                         Conclusion

       For the foregoing reasons, we conclude that the trial court did not err in granting
the Defendants’ motion for judgment on the pleadings. The costs of this appeal are
assessed against the Appellant, Moufak Sakaan, and his surety, for which execution may
issue if necessary. This case is remanded to the trial court for the collection of costs,
enforcement of the judgment, and for such further proceedings as may be necessary and
are consistent with this Opinion.
                                               _________________________________
                                               ARNOLD B. GOLDIN, JUDGE


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