              IN THE COURT OF APPEALS
                    AT KNOXVILLE                                FILED
                                                                August 25, 1999

                                                               Cecil Crowson, Jr.
                                                                Appellate Court
                                                                      Clerk


                            ) CUMBERLAND COUNTY
WILLIAM TERRY WYATT,            ) 03A01-9809-CV-00307
                                )
     Plaintiff-Appellant,       )
                                )
     v.                         )
                                ) HON. JOHN A. TURNBULL
BILLIE CAREY AND JIM CHEWNING   )
                                )
     Defendants-Appellees.      )
                                ) AFFIRMED AND REMANDED
                                )




WILLIAM TERRY WYATT, PRO SE


PAUL G. SUMMERS, ATTORNEY GENERAL AND REPORTER, MICHAEL MOORE,
SOLICITOR GENERAL, AND PAMELA S. LORCH, ASSISTANT ATTORNEY
GENERAL OF NASHVILLE FOR APPELLEE JIM CHEWNING




                                O P I N I O N




                                                                Goddard, P.J.



            This appeal by pro se Plaintiff/Appellant, William

Terry Wyatt, concerns his suit for civil conspiracy, negligent

infliction of emotional distress, and outrageous conduct, as well

as for violations of his constitutional rights.             He sued

Defendants/Appellees, Billie Carey1, his ex-wife, and Jim




      1
       Service upon Ms. Carey could not be obtained.   She was not a party
below or on appeal.
Chewning, an investigation officer with the Tennessee Department

of Correction.




          Mr. Wyatt, who is serving a sentence for attempted

second degree murder and kidnapping, brings this civil action

against Ms. Carey and Officer Chewning alleging that Officer

Chewning “conspired” with Ms. Carey to submit a false report of

Mr. Wyatt’s criminal history in his presentence report, which was

prepared by Officer Chewning.   Mr. Wyatt contends that the pair

falsified the presentence report to indicate that he had a

significant number of criminal offenses, thereby causing him to

receive a jail sentence instead of probation.




          Mr. Wyatt presents two issues, which we restate, for

our consideration:

                 1. Whether a genuine issue of material
                 fact exists regarding the one-year
                 statute of limitations applicable to
                 civil conspiracy, emotional distress,
                 and outrageous conduct.

                 2. Whether the Trial Court abused its
                 discretion by dismissing the complaint
                 without stating its reasons for the
                 dismissal and without notifying all
                 parties, specifically Ms. Carey, of its
                 intent to dismiss and by not giving all
                 parties an opportunity to respond to the
                 Court’s actions.




                                 2
            Officer Chewning filed the presentence report on May

19, 1995.    On December 2, 1997, Mr. Wyatt filed an action for

civil conspiracy, negligent infliction of emotional distress, and

outrageous conduct, as well as for violations of his

constitutional rights.




            The Trial Court concluded

                  that the motion for summary judgment
                  filed by the defendant Chewning is
                  meritorious in that the complaint shows
                  upon its face that the applicable one
                  year statute of limitations has expired prior
                  to the filing of this complaint. Since the
                  same factors would apply to the defendant
                  Carey, the Court also is required to dismiss
                  the claim against Billie Carey.




            On appeal the State argues that Mr. Wyatt’s cause of

action is time barred.      Officer Chewning filed Mr. Wyatt’s

presentence report on May 19, 1995, but Mr. Wyatt did not file a

complaint until December 2, 1997.2         The State asserts that over

two years had passed from the date of the alleged tortious

conduct and the filing of the complaint.          It maintains that

Tennessee Code Annotated § 28-3-104 provides for a one-year

statute of limitations:



                 Personal tort actions. -- (a) The
            following actions shall be commenced within


     2
       The State uses the date of November 23, 1997 in its brief. However,
the complaint was not filed until December 2, 1997, which is the date used by
this Court.

                                      3
          one (1) year after the cause of action
          accrued:
               (1) Actions for libel, for injuries to the
               person, false imprisonment, malicious
               prosecution, breach of marriage promise;

                               * * * *

               (3) Civil actions for compensatory or
               punitive damages, or both, brought under
               the federal civil rights statutes[.]




          The State acknowledges that the Trial Court erroneously

labeled Officer Chewning’s motion to dismiss as a motion for

summary judgment, but maintains that the Trial Court’s judgment

regarding the statute of limitations issue is correct.




           We find that the record clearly shows that Mr. Wyatt

allowed the one-year statute of limitations to expire before

filing his complaint.   See Harvey v. Martin, 714 F.2d 650 (6th

Cir. 1983); Wright v. Tennessee, 628 F.2d 949 (6th Cir. 1980);

Braswell v. Carothers, 863 S.W.2d 722 (Tenn. Ct. App. 1993).

Therefore, his cause of action is time barred.




          In light of our disposition of the statute of

limitations issue, we need not address the second issue.




                                4
          For the foregoing reasons, the judgment of the Trial

Court is affirmed and the cause remanded for collection of the

judgment and costs below.    Costs of appeal are adjudged against

Mr. Wyatt.




                                     ___________________________
                                     Houston M. Goddard, P.J.


CONCUR:



__________________________
Herschel P. Franks, J.



__________________________
Charles D. Susano, Jr., J.




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