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

                                                                      Cecil Crowson, Jr.
                                                                      Appellate C ourt
                                                                          Clerk
WILLIAM G. BRASHEARS and wife            )       KNOX COUNTY
DONNA BRASHEARS                          )       03A01-9809-CV-00298
                                         )
     Plaintiffs-Appellants               )
                                         )
                                         )
     v.                                  )       HON. DALE WORKMAN,
                                         )       JUDGE
                                         )
CITY OF KNOXVILLE POLICE                 )
DEPARTMENT                               )
                                         )
     Defendant-Appellee                  )       AFFIRMED AND REMANDED




JAMES L. MILLIGAN, JR., OF KNOXVILLE FOR APPELLANTS

RONALD E. MILLS, Assistant City Attorney, City of Knoxville, FOR
APPELLEE




                             O   P   I   N   I    O   N




                                                             Goddard, P.J.




          William and Donna Brashears appeal the Knox County

Circuit Court’s ruling of summary judgment in favor of the City

of Knoxville.   The Brashears contend that the Circuit Court

improperly granted the motion for summary judgment because it did

not recognize nor apply the doctrines of equitable estoppel or

equitable tolling in their favor.                We agree with the Circuit

Court’s ruling and, therefore, affirm the judgment.
           The facts of this case are not disputed by either

party.    On March 4, 1996, the Knoxville Police Department

enlisted the services of Mr. Brashears in order to facilitate the

arrest of Mr. Brashears’ neighbor, James Martin.    Mr. Brashears

was asked by the Knoxville Police Department to lure Mr. Martin

out of his home in order to make the arrest easier for the

police.   Mr. Brashears complied with the request, and was able to

get Mr. Martin to come out of his home.    The police promptly

arrested Mr. Martin and an arrest report was subsequently filed.

Mr. Brashears was not arrested by the police nor was an arrest

report filed; however, in order to keep Mr. Brashears’ role in

the arrest a secret, the police also went through the formalities

of handcuffing Mr. Brashears and placing him in the back of a

patrol car.



           According to the Brashears’ Complaint, the Knoxville

Police Department’s treatment of Mr. Brashears was so “rough,”

that it caused a ruptured vertebrae in his cervical spine.

Specifically, Mr. Brashears claims that he suffered this injury

as a result of being left in the patrol car for over ten minutes

with his hands handcuffed behind his back.



           In order to discover the date for the cause of this

action, the Brashears’ attorney performed a small investigation

for arrest reports associated with the incident on March 4, 1996.

A law clerk working for the Brashears’ attorney inquired into the

date of arrest of Mr. Brashears by the KPD.    The KPD informed the

law clerk that there was no arrest report for Mr. Brashears.     The

law clerk also inquired of the Knox County Sheriff’s Department

for an arrest record of either Mr. Brashears or Mr. Martin.

                                 2
Unbeknownst to the plaintiff, his attorney, and the law clerk,

Mr. Martin was also arrested on March 15, 1996, in addition to

the arrest involving Mr. Brashears on March 4, 1996.                                                                                 Thus, when

the Knox County Sheriff’s department provided an arrest report

for Mr. Martin dated March 15, 1996, Mr. Brashears and his

attorney incorrectly assumed that this was the date on which the

cause of action accrued.1



                        In order to pursue a claim for his alleged injuries,

Mr. Brashears filed suit against the Knoxville Police Department.

The Plaintiff filed an amended complaint changing the defendant

to the City of Knoxville on May 22, 1997.                                                                 Mr. Brashears’ suit

falls under the Tennessee Governmental Tort Liability Act because

the City of Knoxville is a governmental entity. TCA 29-20-101 et

seq.              The Governmental Tort Liability Act provides a 12 month

statute of limitations period. TCA 29-20-305(b).                                                                          Mr. Brashears

filed his suit on March 14, 1997, and, therefore, failed to meet

the one year statute of limitations period because the cause of

action arose on March 4, 1996, more than one year before the date

of the court filing.



                        The City of Knoxville moved for summary judgment on the

basis that there was no genuine issue of material fact, and thus,

a ruling in favor of the City based upon the applicable statute

of limitations was in order.                                             The Knox County Circuit Court




              1
                T h e r e c o r d        d o e s      n o t      d i s c l o s e     w h y      t h e     K n o x     C o u n t y      S h e r i f f ’ s
O   f f i c   e d i d n o t p          r o v i d    e a n         a r r e s t r    e c o r    d f o     r M r .        M a r t i n      o n M a r c h
4   , 1 9     9 6 .      A d d i t i   o n a l l    y , t      h e r e c o r d        d o e   s n o     t d i s     c l o s e w      h y t h e l a w
c   l e r k      w o r k i n g f o     r t h e         B r a   s h e a r s ’ a     t t o r    n e y     f a i l e   d t o a s        k t h e
K   n o x v   i l l e P o l i c e         D e p a   r t m e    n t f o r M r       . M a      r t i n   ’ s a r     r e s t r e      c o r d s .

                                                                             3
agreed with the City, and on July 28, 1998, the Circuit Court

ordered the case dismissed.



          II.   Summary Judgment

          Summary judgment is properly ordered when there are no

genuine issues as to any material facts and the moving party is

entitled to a judgment as a matter of law. Byrd v. Hall, 847

S.W.2d 208, 214 (Tenn.1993).   After a trio of decisions by the

United States Supreme Court in 1986, the role of summary judgment

in adjudication has become much more prominent.   See Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986);

Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574,

106 S.Ct. 1348 (1986).   The success or failure of a party’s case

sometimes depends, therefore, upon a complete understanding of

the procedure for summary judgment.



          The evaluation of any summary judgment motion starts

with the same three issues: “(1) whether a factual dispute

exists; (2) whether the disputed fact is material to the outcome

of the case; and (3) whether the disputed fact creates a genuine

issue for trial.” Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993).

Because the City rested its summary judgment motion upon a

statute of limitations defense, only a factual dispute regarding

that defense will overcome the Circuit Court’s ruling.   In other

words, the Brashears would have to demonstrate that there is a

genuine issue of material fact regarding the date of Mr.

Brashears’ injury.




                                   4
          Initially, the burden of proving the summary judgment

motion rested with the City.    In asserting the statute of

limitations defense, the City had to prove that there were no

disputes with regard to: (1) the statute of limitations properly

applicable to the Brashears’ cause of action; (2) the date on

which the cause of action accrued; and (3) the date on which suit

was filed. Wilkins v. Third Nat’l Bank in Nashville, 884 S.W.2d

758, 761 (Tenn.Ct.App.1994).    Elements (1) and (3) are self-

evident from the pleadings.    The Circuit Court Clerk’s stamp

shows without a doubt that the Brashears filed their complaint on

March 14, 1997.   The proper statute of limitations is also

dictated by the Brashears’ Amended Complaint asserting a cause of

action under the Tennessee Governmental Tort Liability Act. TCA

29-20-101 et seq.   As stated above, that act provides a one-year

statute of limitations in which to file suit.



          The crux of this matter is element (2), the date on

which the cause of action accrued.    In order to support its

motion, the City offered the deposition testimony of those

involved in the incident on March 4, 1996.    Specifically, Officer

Ben Edmunson’s testimony shows that the cause of action accrued

on March 4, 1996.   As the Tennessee Supreme Court wrote in Byrd:

     When the party seeking summary judgment makes a
     properly supported motion, the burden then shifts to
     the nonmoving party to set forth specific facts, not
     legal conclusions, by using affidavits or the discovery
     materials listed in Rule 56.03, establishing that there
     are indeed disputed, material facts creating a genuine
     issue that needs to be resolved by the trier of fact
     and that a trial is therefore necessary. The nonmoving
     party may not rely upon the allegations or denials of
     his pleadings in carrying out this burden . . . .




                                  5
Byrd, 847 S.W.2d at 215.   Thus, the burden was on the Brashears

to provide some proof that challenged the City’s proof as to the

date the cause of action accrued.    This the Brashears did not do.



          Instead, the attorney for the Brashears argued that the

City raised the statute of limitations defense some eleven months

after filing its initial answer, and second, that the Brashears

detrimentally relied upon the Knox County Sheriff’s Department to

provide them with the correct date for this cause of action.

Unfortunately for the Brashears, these arguments are legal in

nature; they do not meet the burden of providing that a genuine

issue of material fact exists regarding the defense asserted by

the City. See Wilkins v. Third Nat’l Bank in Nashville, 884

S.W.2d 758, 761 (Tenn.Ct.App.1994).



          The rules regarding summary judgment are clear.     The

adverse party to a summary judgment motion must defend the motion

by setting “forth specific facts showing that there is a genuine

issue for trial.” Tennessee Rules of Civil Procedure 56.06.     The

adverse party may not “rest upon the mere allegations or denials

of the adverse party’s pleading . . . .” Tennessee Rules of Civil

Procedure 56.06.   The Brashears failed to offer any evidence

disputing the date on which this cause of action accrued.     The

granting of the summary judgment motion by the Circuit Court was,

therefore, proper under the circumstances.



          II.   Legal Arguments of the Brashears

          Viewing the Brashears’ appellate brief in the best

possible light, their main argument is not that summary judgment

was improper, but that the City should be estopped from asserting

                                 6
the statute of limitations defense.    Thus, a trial proving the

negligence of the City and the damages of Mr. Brashears would be

in order.    In defense of their position, the Brashears argue that

they detrimentally relied upon the Knoxville Police Department

and the Knox County Sheriff’s Department for determining the date

on which to file their complaint in order to meet the statute of

limitations.    After a review of the legal arguments offered by

the Brashears, we find that they are without merit.



            First, the Brashears argue that the City should be

equitably estopped from asserting the statute of limitations

defense because the Brashears detrimentally relied upon the City

to provide the correct date on which this cause of action

accrued.    Normally, exceptional circumstances are required to

invoke the estoppel doctrine against the State and its

governmental subdivisions. Carpenter v. State, 838 S.W.2d 525,

528 (Tenn.1992) (citing Bledsoe County v. McReynolds 703 S.W.2d

123, 124 (Tenn.1985)).    For analysis purposes only, we will

disregard the exceptional circumstances requirement in order to

present a complete review of the estoppel doctrine under the

facts present in this case.



            Recently, this Court discussed the doctrine of

equitable estoppel in Smith v. Shelby Ins. Co., 936 S.W.2d 261,

263-64 (Tenn.Ct.App.1996), and outlined the necessary elements

required for successfully asserting equitable estoppel.

Quoting from the case of Gitter v. Tennessee Farmers Mut. Ins.

Co., 60 Tenn.App. 698, 704, 450 S.W.2d 780, 783 (1969), we wrote:




                                 7
     [t]he essential elements of an equitable estoppel as
     related to the party claiming the estoppel, are, (1)
     lack of knowledge and of the means of knowledge of the
     truth as to the facts in question; (2) reliance upon
     the conduct of the party estopped, and (3) action based
     thereon of such a character as to change his position
     prejudicially.


(Citation omitted).



          The Brashears cannot properly assert estoppel based

upon these three elements because they are not able to show

either a lack of knowledge of the true date of the incident, or

that they relied upon the City prejudicially.   Discussing the

lack of knowledge element first, there is no basis for Mr.

Brashears to claim a lack of knowledge under these circumstances

when he was present at the time of the alleged injury.   Even if

it is true that Mr. Brashears could not pin-point the exact date

on which the incident occurred, it appears unlikely that he could

not at least indicate an approximate time or range of weeks

within which the event took place.   Surely the one year statute

of limitations period is not overly burdensome for someone who

was present when the incident occurred and claims to have

suffered a spinal injury.



          Turning our attention to prejudicial reliance, we note

that the strongest evidence available tending to show any level

of reliance by the Brashears on the City of Knoxville occurred

when the KPD informed the Brashears that there was no police

report for Mr. Brashears filed on the date of the incident.

Coupled with their subsequent discovery of only one arrest report

for Mr. Martin on March 15, 1996, it is understandable why the

Brashears assumed that this was in fact the date of the incident.



                               8
An erroneous assumption by the Brashears, however, does not by

itself prove reliance upon the City.    We will not allow the

Brashears to blame the City for their erroneous assumptions when

in truth, the KPD stated correctly that Mr. Brashears was not

arrested.   The doctrine of estoppel does not permit the Brashears

to assert that they relied to their prejudice upon the truth.



            Likewise, we are unconvinced that the actions of the

Knox County Sheriff’s Department prejudiced the Brashears.      In

addition to the fact that the Knox County Sheriff’s Department

does not serve as an agent for the City of Knoxville, the fact

remains that it is not the duty of the Knox County Sheriff’s

Department, nor the KPD, to serve as an insurer for the validity

of the information it provides to plaintiffs’ attorneys.     At the

end of the day, it is the Brashears’ responsibility to file only

those claims that were the subject of a thorough and complete

investigation into all the facts and circumstances.    The City of

Knoxville is not required to supplement the Brashears’ lack of

diligence in the prosecution of their claim.



            Finally, the Brashears argue that the doctrine of

equitable tolling of the statute of limitations should be applied

under the circumstances of this case.    Unfortunately for the

Brashears, Tennessee courts do not recognize the doctrine of

equitable tolling.    Weber v. Moses, 938 S.W.2d 387, 392

(Tenn.1996)(citing Norton v. Everhart, 895 S.W.2d 317, 321

(Tenn.1995)(choosing in favor of the existing doctrine of

equitable estoppel over equitable tolling)).    We cannot,

therefore, rule in the Brashears’ favor based upon this argument.




                                 9
                    III. Conclusion

                    The Circuit Court for Knox County was correct in

deciding that there was no genuine dispute as to any material

fact in this case.                      The Brashears failed to present any proof

that a genuine issue of fact existed regarding the date the cause

of action accrued.



                    We affirm the judgment of the Trial Judge and remand

the case for collection of costs below.                                           Costs of appeal are

adjudged against Mr. and Mrs. Brashears and their surety.



                                                            _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                            H o u s t o n M . G o d d a r d , P . J .


C O N C U R :



_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
H e r s c h e l P . F r a n k s , J .



_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
C h a r l e s D . S u s a n o , J r . , J .




                                                                  1 0
