                                                                                         10/05/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 16, 2017 Session

                     IN RE ESTATE OF WILLIAM C. LINK

                 Appeal from the Circuit Court for Davidson County
                   No. 14C1299       Ben Cantrell, Special Judge
                     ___________________________________

                           No. M2016-02202-COA-R3-CV
                       ___________________________________

Plaintiff, the successor administrator for the decedent’s estate, brought a negligence suit
against the Metropolitan Government of Nashville and Davidson County based on the
probate clerk’s failure to cite the prior administrator in accordance with Tennessee Code
Annotated section 30-2-602. Following the Metropolitan Government’s filing of a
motion for summary judgment, the trial court concluded that the asserted claims were
barred by the Tennessee Governmental Tort Liability Act’s one-year statute of
limitations. For the reasons stated herein, we reverse.


       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed 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.

Patrick B. Mason and Steven C. Ebbers, Germantown, Tennessee, for the appellant, Paul
Allen Gontarek.

Keli J. Oliver and Melissa Roberge, Nashville, Tennessee, for the appellee, Metropolitan
Government of Nashville & Davidson County.

                                       OPINION

                         Background and Procedural History

      On March 19, 2003, the Seventh Circuit Court for Davidson County (the “Probate
Court”) entered an order appointing John Clemmons (“Mr. Clemmons”) to serve as
Administrator C.T.A.1 for the Estate of William C. Link (the “Estate”). As is relevant to
this appeal, the order required Mr. Clemmons to file an inventory and annual accountings
for the Estate. Despite filing an accounting on September 15, 2004, Mr. Clemmons never
filed another accounting for the Estate during his ten year tenure as Administrator C.T.A.

       On April 10, 2013, Mr. Clemmons was removed from his position as
Administrator C.T.A. for the Estate, and in his stead, the Probate Court appointed Paul A.
Gontarek (“Mr. Gontarek”) as Successor Administrator C.T.A. Approximately seven
months later, on November 15, 2013, Mr. Clemmons pled guilty to stealing over
$770,000.00 from the Estate and was sentenced to nine years’ imprisonment as a result of
his theft.

        On April 1, 2014, Mr. Gontarek, in his capacity as Successor Administrator
C.T.A., filed a complaint in the Davidson County Circuit Court against the Metropolitan
Government of Nashville and Davidson County (“Metro”). The complaint sought relief
on account of Mr. Clemmons’s wrongdoing and asserted that the employees in the
Probate Court Clerk’s office had been a cause of the Estate’s damages through their
negligent failure to monitor Mr. Clemmons. Namely, the complaint alleged that despite
Mr. Clemmons’s failure to provide annual accountings pursuant to Tennessee Code
Annotated section 30-2-601, the Probate Court Clerk had not cited Mr. Clemmons for
this shortcoming. As alleged in the complaint, the Probate Court Clerk is required by
statute to cite the personal administrator for failing to carry out his or her administrative
duties. See Tenn. Code Ann. § 30-2-602 (“If any personal representative fails to settle
the accounts as prescribed in § 30-2-601, the clerk shall cite the personal representative to
appear and settle on a given day[.]”). Following the filing of the complaint, the trial
judge assigned to the case recused himself. A few months thereafter, the Chief Justice of
the Tennessee Supreme Court assigned the matter to be heard by a Special Judge.

       On April 1, 2016, Metro moved for summary judgment as to the claims asserted
against it. In addition to alleging that Mr. Gontarek’s lawsuit was time-barred, Metro
claimed that liability against it was precluded due to the fact that Mr. Gontarek had
already obtained a default judgment against Mr. Clemmons for 100% of the Estate’s
losses in a separately-filed case. Metro’s request for summary judgment was
subsequently taken under advisement following a hearing in May 2016.
       On September 26, 2016, the trial court entered an order granting summary
judgment in favor of Metro and dismissing Mr. Gontarek’s complaint. As a basis for its
        1
          “C.T.A.” is an acronym for cum testamento annexo, meaning “with the will annexed.” See In re
Estate of Hendrickson, No. M2008-01332-COA-R9-CV, 2009 WL 499495, at *2 n.2 (Tenn. Ct. App.
Feb. 25, 2009) (citation omitted). An Administrator C.T.A. is appointed by a court “when the testator has
named no executor, or the executors named refuse, are incompetent to act, or have died before performing
their duties.” Black’s Law Dictionary 49 (8th ed. 2004).
                                                  -2-
dismissal, the trial court concluded that the claims asserted against Metro were barred by
the Tennessee Governmental Tort Liability Act’s one-year statute of limitations. The
trial court did not opine on the merits of the alternative basis for dismissal that Metro
cited in its motion, holding that “[a]ll other issues . . . are . . . moot.” This timely appeal
followed.

                                      Issues Presented

       Having reviewed the parties’ principal appellate briefs, we perceive that the
following two issues are presented for our review:

       1. Whether the claims in the complaint are time-barred.

       2. Whether the present lawsuit is barred due to principles of comparative
          fault.

                                    Standard of Review

       Because this appeal stems from a grant of summary judgment, our inquiry
“involves purely a question of law.” Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88
(Tenn. 2000). Our standard of review is de novo, and we afford no presumption of
correctness to the trial court’s determination. Maggart v. Almany Realtors, Inc., 259
S.W.3d 700, 703 (Tenn. 2008) (citations omitted). When ascertaining whether a grant of
summary judgment was proper, we must make a fresh determination that the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.
Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009) (citations omitted). Under that rule,
a motion for summary judgment should only be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

       “The moving party has the ultimate burden of persuading the court that . . . there
are no genuine issues of material fact and that it is entitled to judgment as a matter of
law.” Town of Crossville Hous. Auth. v. Murphy, 465 S.W.3d 574, 578 (Tenn. Ct. App.
2014) (citation omitted). If the moving party does not meet its initial burden of
production, the nonmoving party’s burden is not triggered and the motion for summary
judgment fails. Id. at 578-79 (citation omitted). However, if the moving party makes a
properly supported motion, the burden of production then shifts to the nonmoving party
to demonstrate the existence of a genuine issue of material fact. Id. at 578 (citation
omitted). “When the facts and the inferences reasonably drawn from the facts are not
disputed, the courts themselves can bring to bear the applicable legal principles to
                                             -3-
determine whether the moving party is entitled to a judgment as a matter of law.” Cherry
v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000).

                                         Discussion
       Statute of Limitations

        The first issue presented for our review is whether the claims in the complaint are
time-barred. As previously noted, the trial court dismissed this case on the ground that
the lawsuit was barred by the statute of limitations applicable to claims brought under the
Tennessee Governmental Tort Liability Act. Under the Tennessee Code, the relevant
limitation period for such claims is one year. See Tenn. Code Ann. § 29-20-305(b) (“The
action must be commenced within twelve (12) months after the cause of action arises.”).

       In ruling that Mr. Gontarek’s complaint filed on April 1, 2014 was time-barred,
the trial court found that it was undisputed “that all the losses attributable to Mr.
Clemmons occurred prior to April 1, 2013.” According to Metro, the trial court was
correct in dismissing the complaint as untimely. In advocating for its position on appeal,
Metro maintains that Mr. Clemmons, the prior administrator for the Estate, had notice of
the facts giving rise to the asserted claims well over a year prior to the commencement of
this lawsuit.

       Based on our review of the record, we are of the opinion that there are no
undisputed facts asserted that actually establish Metro’s statute of limitations defense. In
an attempt to support its defense at summary judgment, Metro’s statement of undisputed
material facts set forth several assertions concerning (a) when the last unauthorized fee
was taken by Mr. Clemmons and (b) when annual accountings were due. Based on
Metro’s assertions and Mr. Gontarek’s responses thereto, the trial court found there to be
no dispute that all losses occurred prior to April 2013. Although it can certainly be
inferred that Mr. Clemmons was aware of his own misappropriation of funds and the fact
that annual accountings were not being filed, we do not agree with Metro that the present
lawsuit is time-barred.

        As a general matter, a cause of action arises “when the plaintiff discovers, or in the
exercise of reasonable care should have discovered, that he or she sustained an injury as a
result of the defendant’s wrongful conduct.” Sutton v. Barnes, 78 S.W.3d 908, 916
(Tenn. Ct. App. 2002) (citation omitted). However, we also note that a cause of action
does not accrue “in its proper sense, until there is a person by or against whom process
can issue.” Glass v. Williams, 84 Tenn. 697, 699 (1886) (citation omitted). Although
this latter concern is not usually in question, we find it to be of particular significance in
this case.

                                            -4-
        As we understand it, Metro’s defense is predicated on the notion that Mr.
Clemmons could have sued for the losses to the Estate that stemmed from his own
malfeasance. Respectfully, we find such a proposition to be absurd, and to this end, we
are in agreement with Mr. Gontarek’s counsel that the present lawsuit is, in fact, timely.
As an initial matter, there should be no question that Mr. Clemmons would not have been
able to bring a suit against himself on behalf of the Estate. It is well-recognized in
jurisdictions across the country that “[a] person cannot sue himself.” See, e.g., Connell v.
Murray, 423 S.E.2d 304 (Ga. Ct. App. 1992) (citations omitted). As the North Carolina
Supreme Court stated long ago, “it involves an absurdity, that a person should seek from
himself, or withhold from himself.” Pearson v. Nesbit, 12 N.C. 315, 316-17 (1827)
(emphases in original). Moreover, as the Tennessee Supreme Court has held, this
remains true even when the same person sues and defends in a different capacity. In Tate
v. Tate, 227 S.W.2d 50 (Tenn. 1950), a bill was filed under a former section of the
Tennessee Code seeking “to require the guardian of an incompetent to make payments
from the ward’s personal estate for the care, support and well being of the complainant.”
Id. at 51. The complainant, who was the sister of the incompetent, also happened to be
his guardian. Id. The case was dismissed, and on appeal, the Tennessee Supreme Court
affirmed. Id. at 52. In taking heed of the identity of the parties involved, the Supreme
Court stated as follows: “[F]rom the caption of the cause, it appeared that complainant,
individually, was suing herself as guardian, an anomaly not permitted in law or equity.”
Id. at 51 (citations omitted).

       Of course, the particular question here is not whether Mr. Clemmons could have
sued himself, but whether Mr. Clemmons could have sued Metro on behalf of the Estate.
At oral argument, Metro answered this question in the affirmative and argued that,
however improbable such a lawsuit may be, that does not countenance against the
running of the limitation period. We disagree with Metro’s legal conclusion. As we have
already indicated, we reject the notion that Mr. Clemmons could have properly overseen
the asserted claims against Metro, even if he chose not to sue himself. It cannot be
expected that Mr. Clemmons would ever bring such a lawsuit given the nature of the
allegations involved, and even if he had attempted to sue only Metro, his control over the
course of litigation would necessarily mean that he would control the scope of light shed
on his own wrongdoing. Allowing him to assume such a position is untenable. Indeed,
the claims against Metro are predicated on losses sustained by Mr. Clemmons’s own
actions.

       A similar issue was before the Kansas Supreme Court in Peyton v. Chase County
National Bank, 262 P. 595 (Kan. 1928). In that case, an administrator brought suit
against the former executor of the estate and a bank of which the former executor had
been its president. Id. The suit was predicated on the allegation that the defendants had
misused money belonging to the estate. Id. As it concerned the bank specifically, the
                                           -5-
gist of the action was that the bank’s officers had conspired with the former executor to
wrongfully use money of the estate for the bank’s benefit. Id. at 596.

        Although a judgment was recovered against the former executor, the trial court
dismissed the claims against the bank as untimely. Id. at 595-96. On appeal, the sole
issue was whether the lawsuit against the bank was barred by the statute of limitations.
Id. at 595. The bank maintained that, even assuming money had been wrongfully used as
alleged, that use amounted to conversion for which a two-year limitation period applied.
Id. at 596. The bank further maintained that “there was at all times an executor of the
estate or an administrator with the will annexed; and that an action might have been
brought for the wrongful conversion at any time after such conversion.” Id. The Kansas
Supreme Court ultimately rejected this argument for several reasons, among which was
the inability of the former executor to bring suit:

      [T]his we regard the most important reason why appellee’s contention is
      unsound—there was no one who could effectively maintain the action
      sought to be maintained in this case until Sanders had resigned or been
      removed as executor and an administrator had been appointed. The law is
      well settled that the statute of limitations does not begin to run until a cause
      of action accrues. On this point the courts all agree, though there is
      difficulty sometimes in determining when the cause of action accrued.
      Generally speaking, it is well settled that the statute of limitations does not
      begin to run until there are in being a person capable of suing and a
      different person capable of being sued . . . , as well as a court of competent
      jurisdiction in which the matter may be heard.

             As long as J.B. Sanders was executor, that situation did not exist. To
      expect that a suit might be maintained by J.B. Sanders, as executor, against
      the bank in which he charged himself as executor with fraud, and charged
      himself and other officers as representing the bank with fraud, and all of
      them with a conspiracy wrongfully to use the money of the estate for the
      benefit of the bank, would be an anomaly, at least, and one in which it
      could not be expected that there would be a fair determination of the rights
      of the parties.

      ....

      From April, 1921, to April, 1925, J.B. Sanders, as executor of the will of
      S.T. Slabaugh, held the legal title to the property of the estate. The legatees
      named in the will were not in position to maintain this action. It is
      inconceivable that Sanders could have been expected to maintain it. The
                                           -6-
        result is that the statute of limitations did not begin to run while Sanders
        was executor. This action was brought less than one year after plaintiff was
        appointed administrator with the will annexed. Hence it is not barred by
        the two years’ statute of limitations[.]

Id. at 596-97.

       The same reasoning applies here. Under Tennessee law, because the personal
representative of an estate takes exclusive title to the decedent’s general personal estate,
only the personal representative may maintain a civil action to recover debts or other
assets due the estate. In re Estate of Hendrickson, No. M2008-01332-COA-R9-CV, 2009
WL 499495, at *7 (Tenn. Ct. App. Feb. 25, 2009) (citations omitted). Therefore, Mr.
Clemmons, as the former legal representative of the Estate, was the only individual with a
right to pursue any claims on behalf of the Estate during his tenure as Administrator
C.T.A.2 Inasmuch as the claims at issue are predicated on his own wrongdoing, however,

        2
           For the sake of completeness, we observe that the personal representative’s exclusive right to
bring a lawsuit on behalf of an estate is subject to some qualification, at least according to an 1874
opinion from the Tennessee Supreme Court. In Mason v. Spurlock, 63 Tenn. 554 (1874), the Tennessee
Supreme Court referenced the ability of “the parties ultimately entitled” to proceed in equity against a
debtor and an estate’s personal representatives when the personal representatives “by collusion with the
debtor, are refusing to take the necessary s[]teps, and where they are insolvent, and the debt is about to be
lost.” Id. at 559 (citation omitted). Ostensibly, Mason stands for the proposition that an estate
beneficiary, in lieu of a personal representative, could bring a claim to enforce his or her rights in certain
circumstances when the collection of a debt is threatened.
         At the outset, it does not appear that Mason would have factual relevance to a case such as the
present one. There has been no indication of “collusion,” nor has there been any mention regarding Mr.
Clemmons’s insolvency during his tenure as an administrator. Moreover, Mason refers to the collection
of debts, whereas this case does not involve the collection of a debt per se, but involves an attempted
recovery against Metro on a negligence theory. However, even if the factual application of Mason is
broader than its specific facts admit with respect to this latter point, its continued relevance is somewhat
muddled by our citation to it in In re Estate of Hendrickson. In In re Estate of Hendrickson, the
decedent’s daughter sought to assert certain claims on behalf of the estate that the administrator had
chosen not to pursue. In re Estate of Hendrickson, 2009 WL 499495, at *2. We noted on appeal that the
personal representative had an exclusive right, but for the circumstances mentioned in Mason, to maintain
suits to recover debts due to the deceased. Id. at *7 (citations omitted). Upon observing that none of the
circumstances discussed in Mason were present, we concluded that the decedent’s daughter had failed to
establish a basis upon which she would be entitled to assert a claim on behalf of the estate. Id.
Interestingly, despite this discussion, we seemed to insinuate that if the circumstances in Mason ever
manifested, the estate’s claims should not be maintained by a beneficiary but by another administrator.
Indeed, we concluded our analysis as follows and held that the administrator was the only individual with
a right to pursue claims on behalf of the estate until removed:

                If the trial court determines that the Administrator is failing to pursue valid and
        viable claims on behalf of the estate, instead of permitting Ms. McKeithan to file an
                                                    -7-
we conclude that he could not have effectively maintained the present lawsuit, nor could
he have been expected to do so. It is on this point where we disagree with Metro.
Although Metro places much emphasis on Mr. Clemmons’s knowledge of the underlying
facts in this case and the fact that such knowledge existed more than a year prior to the
commencement of this action, we are of the opinion that the establishment of such
knowledge is of no consequence. For the reasons previously mentioned, the statute of
limitations did not run while Mr. Clemmons was acting as Administrator C.T.A. It was
not until the appointment of Mr. Clemmons’s successor, Mr. Gontarek, that the present
lawsuit could have been pursued on behalf of the Estate. As such, we reverse the trial
court’s determination that the asserted claims are time-barred.

        Metro’s Reliance on the Doctrine of Comparative Fault

       When Metro moved for summary judgment, it also argued that liability against it
was precluded due to the fact that Mr. Gontarek had already obtained a default judgment
against Mr. Clemmons for the Estate’s losses in a separately-filed case. Although the
trial court did not reach the merits of this issue and relied solely on the statute of


        Intervening Complaint to assert additional claims on behalf of the estate, the trial court
        has the authority under Tenn. Code Ann. § 30-1-109(a) to appoint an administrator ad
        litem to assume the role as the plaintiff in this action in lieu of, but not in addition to, the
        Administrator to pursue such claims as the Administrator ad litem deems appropriate.
        Nevertheless, unless and until the Administrator’s exclusive right to pursue the
        claims against Defendant is removed and awarded to an Administrator ad litem, only
        Thomas Ware, in his capacity as the Administrator, has the right to pursue claims
        on behalf of the estate against Defendant.

Id. at *8 (emphasis added).

        For purposes of this appeal, we need not decide the continuing vitality of Mason. Nor do we need
to decide whether it would result in a successor administrator’s claim being time-barred—even though the
prior administrator could not bring suit—because of the knowledge and ability to sue that may have been
possessed by an estate beneficiary. As already noted, there has been no indication that the circumstances
mentioned in Mason (collusion and the administrator’s insolvency) were present during Mr. Clemmons’s
tenure as the Estate’s representative. Thus, even aside from the fact that this case does not strictly involve
the collection of a debt, the absence of the triggering circumstances in Mason means that only Mr.
Clemmons could bring suit on behalf of the Estate during his tenure as Administrator C.T.A. However,
even assuming arguendo that Mason would have permitted an estate beneficiary to assert the present
claims before Mr. Clemmons was removed such that the cause of action accrued with respect to the
Estate, the record does not establish that Mr. Gontarek’s lawsuit was untimely. The statement of
undisputed material facts submitted by Metro at summary judgment did not contain any assertion as to the
knowledge of any estate beneficiary concerning underlying losses and alleged negligence of Metro. Thus,
even assuming that the timeliness of the claims could have been impacted by the knowledge of an estate
beneficiary, there is nothing in the asserted statement of facts which establishes such knowledge.
                                                     -8-
limitations in its dismissal of the complaint, we now turn to Metro’s alternative
argument.3

        Metro’s argument is grounded in the doctrine of comparative fault. As developed
in its appellate brief, it contends that 100% of the fault for the Estate’s losses has already
been allocated against Mr. Clemmons, thereby precluding any judgment against it in the
present action:

               Plaintiff has already elected to pursue and obtain a judgment against
        Clemmons. The judgment against Clemmons granted the Plaintiff’s request
        that Clemmons be found liable for all damages to the Link Estate. The
        Link Estate cannot now be permitted to attempt to reallocate the fault to the
        Metropolitan Government and obtain a double recovery. Plaintiff had the
        opportunity to pursue both the Metropolitan Government and Clemmons in
        the same action or to proceed against each simultaneously, but instead
        chose to request and was granted a default judgment for all the damages
        sustained to the Link Estate. To now permit a recovery against the
        Metropolitan Government would violate the principles of comparative fault
        and sanction a double recovery for the Plaintiff.

There is no question that Mr. Gontarek filed a separate lawsuit against Mr. Clemmons for
the Estate’s losses related to this matter, and there is no dispute that a default judgment
has been entered against Mr. Clemmons.4 We disagree with Metro, however, that this
case is limited by comparative fault principles. For the reasons explained below, we are
of the opinion that the doctrine of joint and several liability is implicated such that the


        3
           Here, Metro’s alternative argument was raised and argued at both the trial court and on appeal.
The facts pertaining to the alternative argument are not disputed and the question presented is solely one
of law. In order to avoid continuing litigation on Metro’s alternative argument and the commensurate
expenses and delay that would accompany further consideration of the issue in the trial court, judicial
economy warrants addressing the alternative legal argument in this appeal even though the trial court
chose not to do so. Judicial abstinence on this pure question of law in this appeal would only leave the
door open for another potential appeal in which our review would be de novo given that the issue is one of
law. In this vein, we certainly do not disagree with Metro that consideration of its alternative argument is
proper. Indeed, were we to find favor in Metro’s argument, we would be free to affirm the trial court on
that basis. See Hill v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. App. 2001) (noting that this Court can
affirm the trial court’s grant of summary judgment on different grounds). Of course, for the reasons
discussed herein, we do not find favor in Metro’s argument.
        4
          As a technical matter, we observe that despite the entry of a default judgment, the determination
of damages was reserved for a later hearing. There is no indication in this record that the separate case
filed against Mr. Clemmons has been finally resolved.
                                                   -9-
maintenance of a suit against Mr. Clemmons does not present a bar to prosecuting the
present action.

        In the seminal decision McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the
Tennessee Supreme Court abandoned the common law doctrine of contributory
negligence and adopted a modified system of comparative fault. Id. at 56-57. In
connection with this important shift in Tennessee tort law, the Supreme Court recognized
that its decision would “affect[] numerous legal principles surrounding tort litigation.”
Id. at 57. Among other things, the Supreme Court stated, in dictum, that its holding
rendered the doctrine of joint and several liability obsolete. Id. at 58. Notwithstanding
this announcement, subsequent decisions have observed that the doctrine of joint and
several liability was not entirely extinguished in McIntyre’s wake. See generally Banks
v. Elks Club Pride of Tenn. 1102, 301 S.W.3d 214, 219-20 (Tenn. 2010) (outlining
several circumstances in which the doctrine of joint and several liability remained viable
following McIntyre).

       As is relevant here, we note that post-McIntyre decisions indicate that the conduct
of a negligent defendant should not be compared with the intentional conduct of another
when the intentional conduct is a foreseeable risk created by the negligent actor.
Consider the Supreme Court’s decision in Turner v. Jordan, 957 S.W.2d 815 (Tenn.
1997). In that case, a nurse was attacked by a psychiatric in-patient at a Nashville
hospital. Id. at 816. After she was attacked, the nurse sued the hospital’s attending
psychiatrist and alleged that his failure to use reasonable care in the treatment of the
patient had proximately caused her injuries. Id. at 817. Although the defendant
psychiatrist argued that his negligence should be compared to the intentional actions of
the patient, id. at 821, our Supreme Court disagreed, reasoning as follows:

      In our view, the conduct of a negligent defendant should not be compared
      with the intentional conduct of another in determining comparative fault
      where the intentional conduct is the foreseeable risk created by the
      negligent tortfeasor. As other courts have recognized, comparison presents
      practical difficulties in allocating fault between negligent and intentional
      acts, because negligent and intentional torts are different in degree, in kind,
      and in society’s view of the relative culpability of each act. Such
      comparison also reduces the negligent person’s incentive to comply with
      the applicable duty of care. Moreover, while a negligent defendant may, of
      course, raise a third party’s intentional act to refute elements of the
      plaintiff’s negligence claim such as duty and causation, fairness dictates
      that it should not be permitted to rely upon the foreseeable harm it had a
      duty to prevent so as to reduce its liability.

                                          - 10 -
Id. at 823.

       The principle in Turner was revisited a few years later in Limbaugh v. Coffee
Medical Center, 59 S.W.3d 73 (Tenn. 2001). Limbaugh stemmed from an incident where
a nursing home employee physically assaulted one of the nursing home’s residents. Id. at
76-77. Following the attack, the plaintiff filed suit against the nursing home employee
and also asserted a claim against the nursing home. Id. at 77. Concerning the latter
defendant, the complaint alleged that the nursing home “had prior notice of [its
employee’s] propensity for violence and therefore had a duty to take reasonable
precautions to protect its residents from the foreseeable acts of a violent staff member.”
Id. Although the case was factually distinguishable from Turner inasmuch as the plaintiff
in Turner had not sued all tortfeasors but only the attending psychiatrist, the Supreme
Court did not find this to be dispositive. In addition to reaffirming the principle
established in Turner, id. at 87, the Supreme Court concluded in Limbaugh that “where
the intentional actor and the negligent actor are both named defendants and each are
found to be responsible for the plaintiff’s injuries, then each defendant will be jointly and
severally responsible.” Id. (citation omitted). Apportionment of fault is not necessary in
such a scenario, as each defendant is liable for the full amount of the plaintiff’s damages.
Id.

        In this case, given the theory of liability that is advanced against Metro, we are of
the opinion that an apportionment of fault is unnecessary. Assuming liability can be
established, Metro would be liable for the entire amount of damages. Indeed, as in
Turner and Limbaugh, the negligence claim herein is predicated on the notion that
alleged negligence was a proximate cause of harm sustained by another person’s
intentional tortious action. In this case, the specific assertion is that Metro’s negligence
caused harm to the Estate because it enabled Mr. Clemmons’s malfeasance. Although we
do not opine on the substantive merits of this claim, we fail to see how it does not fall
within the analytical framework of Turner and Limbaugh. As Metro itself stated at the
opening of its motion for summary judgment, “Plaintiff has brought this action . . .
alleging that the negligence of the Metropolitan Government allowed John Clemmons . . .
to steal significant sums of money because the Probate Court Clerk’s Office . . . did not
require annual accountings to be filed.” Accordingly, because the liability of Mr.
Clemmons and Metro would be joint and several, it is of no consequence that a judgment
has already been entered against Mr. Clemmons in another case.5 When joint and several
liability is implicated, the tortfeasors at issue may “each . . . be proceeded against
separately to judgment.” Schoenly v. Nashville Speedways, Inc., 344 S.W.2d 349, 351


        5
        As alluded to earlier, the record reflects that the separate case against Mr. Clemmons is not final
inasmuch as no damages have been assessed.
                                                  - 11 -
(Tenn. 1961) (citations omitted). The plaintiff is merely limited to one satisfaction for
the same injury. Id. (citations omitted).

      Although not stated directly, Metro’s brief seems to suggest that the General
Assembly intended to overrule Limbaugh by passing Tennessee Code Annotated section
29-11-107. In part, that statute reads as follows:

   (a) If multiple defendants are found liable in a civil action governed by
       comparative fault, a defendant shall only be severally liable for the
       percentage of damages for which fault is attributed to such defendant by the
       trier of fact, and no defendant shall be held jointly liable for any damages.

   (b) Notwithstanding subsection (a), the doctrine of joint and several liability
       remains in effect:

   (1) To apportion financial responsibility in a civil conspiracy among two (2) or
       more at-fault defendants who, each having the intent and knowledge of the
       other’s intent, accomplish by concert an unlawful purpose, or accomplish
       by concert a lawful purpose by unlawful means, which results in damage to
       the plaintiff; and

   (2) Among manufacturers only in a product liability action as defined in § 29-
       28-102, but only if such action is based upon a theory of strict liability or
       breach of warranty. Nothing in this subsection (b) eliminates or affects the
       limitations on product liability actions found in § 29-28-106.

Tenn. Code Ann. § 29-11-107. Herein, we do not need to opine on this statute’s impact
in any way. The statute is simply not applicable to this case, a point Metro concedes.
Indeed, the statute applies to all actions accruing on or after July 1, 2013. Although there
is certainly a legal disagreement between the parties as to when the claims in the present
lawsuit arose for the purpose of the statute of limitations, no one argues that the claims
accrued on or after the effective date of Tennessee Code Annotated section 29-11-107.

        In summary, because the theory of recovery against Metro implicates the joint and
several liability doctrine, it is clear that Mr. Gontarek’s pursuit of relief against Mr.
Clemmons in another lawsuit poses no bar to the maintenance of the present action. In
reaching this conclusion, we do not opine on the merits or the substantive validity of the
negligence claim against Metro. We merely hold that dismissal is not warranted due to
the alternative argument raised by Metro.


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                                    Conclusion

       For the reasons expressed herein, we reverse the dismissal of Mr. Gontarek’s
lawsuit. Costs of this appeal are assessed against the Appellee, the Metropolitan
Government of Nashville and Davidson County. This case is remanded for the collection
of costs, enforcement of the judgment, and for such further proceedings as may be
necessary and consistent with this Opinion.


                                                _________________________________
                                                ARNOLD B. GOLDIN, JUDGE




                                       - 13 -
