                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 December 11, 2002 Session

           ROSE F. WARNICK v. CARTER COUNTY, TENNESSEE

                       Appeal from the Circuit Court for Carter County
                            No. C8203     Jean A. Stanley, Judge

                                   FILED JANUARY 27, 2003

                                 No. E2002-00833-COA-R3-CV




This is a negligence action filed by Rose F. Warnick against Carter County (“the County”) seeking
damages for personal injuries arising out of an automobile accident involving the plaintiff and Keith
G. Range (“Deputy Range”), a Carter County deputy sheriff, who, according to the complaint, was
“acting within the course and scope of his authority as an agent, servant and employee of” the
County at the time of the accident. The County filed a motion to dismiss pursuant to Tenn. R. Civ.
P. 12.02(6). The trial court dismissed the plaintiff’s complaint, holding that it was not filed within
one year of the accident as required by the Governmental Tort Liability Act (“the GTLA”). We
affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

Thomas E. Cowan, Jr., Elizabethton, Tennessee, for the appellant, Rose F. Warnick.

Tausha M. Carmack and Patrick Ledford, Kingsport, Tennessee, for the appellee, Carter County,
Tennessee.

                                             OPINION

                                                  I.

      The complaint in the instant case alleges that on April 14, 1997, the plaintiff was driving an
automobile in Elizabethton when her vehicle was struck in the rear by a vehicle owned by the County


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and driven by Deputy Range. It is undisputed that, within one year of the accident, the plaintiff filed
an earlier complaint (“the first complaint”) against the County seeking to recover for her injuries.
The complaint in the case at bar recites that the first complaint was “dismissed without prejudice on
July 27, 2000.” The instant action was filed July 27, 2001, obviously within one year of the
voluntary dismissal of the first complaint, but more than four years after the accident.

                                                                II.

        The County’s motion to dismiss asserts that the complaint reflects on its face1 that the
plaintiff “has failed to state a claim upon which relief can be granted.” See Tenn. R. Civ. P.
12.02(6). The County relies upon Tenn. Code Ann. § 29-20-305(b) (2000) – a part of the GTLA –
which provides that an “action [under the GTLA] must be commenced within twelve (12) months
after the cause of action arises.”2 It is clear under this latter statute that a GTLA suit filed more than
one year after the triggering event cannot be saved by the saving statute, Tenn. Code Ann. § 28-1-
105 (2000).3 See Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (“. . . the general rule
in Tennessee is that saving[] statutes may not be applied to extend the period within which an action
must be filed under the GTLA”).

      The plaintiff contends that her action is not controlled by the GTLA. She argues that her
complaint falls under Tenn. Code Ann. § 8-8-302 (2002):

                     Anyone incurring any wrong, injury, loss, damage or expense
                     resulting from any act or failure to act on the part of any deputy
                     appointed by the sheriff may bring suit against the county in which
                     the sheriff serves; provided, that the deputy is, at the time of such
                     occurrence, acting by virtue of or under color of the office.




         1
         In evaluating a T enn. R . Civ. P. 12.0 2 mo tion, we must take as true all well-pled facts in the com plaint.
Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W .2d 934, 938 (Tenn. 1994 ).

         2
          Where the relevant dates are reflected on the face of the complaint, as they are in this case, a statute of
limitations defen se is appropriately asserted by way o f a Rule 12.0 2(6) motion to d ismiss. See Anthon y v. Tidwe ll,
560 S.W.2d 908 , 909 (Tenn. 1977) (“A complaint is subject to dismissal under Rule 12.02(6) for failure to state a
claim if an affirmative defense clearly and unequivocally appears on the face of the complaint.”).

         3
             Tenn. Code Ann. § 2 8-1-105 (a) provid es, in pertinent part, as follows:

                     If the action is commenced within the time limited by a rule or statute of
                     limitation, but the judgment or decree is rendered against the plaintiff upon any
                     ground not concluding the plaintiff’s right of action, or where the judgment or
                     decree is ren dered in favo r of the p laintiff, and is arrested , or reversed on ap peal,
                     the plaintiff, or the plaintiff’s representatives and privies, as the case may be,
                     may, from time to time, commence a new action within one (1) year after the
                     reversal or arrest.

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She correctly points out that the statutory scheme of which this code provision is a part does not
provide a time period within which a claim under Tenn. Code Ann. § 8-8-302 must be filed. This
being the case, she contends that she is entitled to the benefit of the saving statute. She cites
persuasive authority for this latter aspect of her argument. See Eason v. Memphis Light, Gas &
Water Div., 866 S.W.2d 952, 955-56 (Tenn. Ct. App. 1993). If she is correct that the saving statute
applies to her cause of action, her complaint was timely filed since it was filed within one year of
the voluntary dismissal without prejudice of the first complaint.

                                                  III.

        The issue before us is whether the plaintiff’s complaint falls within the GTLA, as the County
argues, or under Tenn. Code Ann. § 8-8-302, as the plaintiff contends. Our research leads us to the
conclusion that the GTLA applies to the plaintiff’s complaint and that the trial court was correct in
dismissing her action as time-barred.

                                                  IV.

        The interplay between the GTLA and the statutory scheme4 of which Tenn. Code Ann. § 8-8-
302 is an integral part was examined by the Supreme Court in Jenkins v. Loudon County, 736
S.W.2d 603 (Tenn. 1987). In Jenkins, the plaintiff sued Loudon County, alleging that she had
recovered a judgment in a federal court against one of the county’s deputy sheriffs. Id. at 604. She
sought to impose liability on the county pursuant to the provisions of Tenn. Code Ann. § 8-8-302
for the deputy’s violation of a federal civil rights statute, 42 U.S.C. § 1983. Id. The trial court
granted the county’s motion to dismiss. Id. The Court of Appeals affirmed, finding that the GTLA
had repealed Tenn. Code Ann. § 8-8-302 “by implication.” The Court of Appeals further “reasoned
that because the GTLA specifically excludes civil rights claims from the operation of the GTLA
under T.C.A. § 29-20-205, immunity from such suits has not been waived.” Id.

        On appeal, the Supreme Court reversed the two lower courts. Id. at 610. The High Court
stated that “the determinative issue” in the case was

                   [w]hether the subject matter covered by T.C.A. §§ 8-8-301 through
                   8-8-303 is entirely embraced in the statutory scheme of the GTLA.

Id. at 607 (emphasis added). The Supreme Court resolved this issue by holding that “the general
scope of the GTLA does not by its express terms encompass every tortious act or omission by
governmental entities or employees; thus, it necessarily leaves significant areas of activities either
protected by immunity or subject to independent bodies of law.” Id. at 608-09 (emphasis added).
It concluded that civil rights violations by duly-appointed deputy sheriffs continue to be controlled
by Tenn. Code Ann. § 8-8-301, et seq.:



       4
           Tenn. Co de Ann. §§ 8-8-301, et seq.

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               Actions for the non-negligent misconduct of deputies do not “aris[e]
               pursuant to” the GTLA, T.C.A. § 29-20-104(b), and may therefore be
               covered by T.C.A. § 8-8-301, et seq., in the appropriate cases.

Id. at 609 (bracketing in original). In the course of its opinion, the Supreme Court made the
following statement which is particularly pertinent to the facts of the instant case:

               The general provisions of the GTLA do not super[s]ede the specific
               provisions of T.C.A. §§ 8-8-301, et seq., as they relate to misconduct
               of sheriff’s deputies, except to the extent that T.C.A. §§ 8-8-301, et
               seq., could extend to actions for negligence under T.C.A. § 29-20-
               205.

Id. (emphasis added) (footnote omitted).

         In Hensley v. Fowler, 920 S.W.2d 649 (Tenn. Ct. App. 1995), the Court of Appeals affirmed
the trial court’s dismissal of a negligence action brought against the Sheriff of Knox County arising
out of the killing of the plaintiff’s intestate by a Knox County deputy sheriff. Id. at 649, 652. We
reasoned that the plaintiff’s suit was controlled by the GTLA and that “the sheriff and the county
enjoy absolute immunity under the undisputed factual circumstances of [the] case.” Id. at 652.
Particularly pertinent to the facts of the case at bar, we construed the holding in Jenkins

               ...to place the safety net of the [GTLA] around counties and its
               employees for actions based on negligence since, as noted in
               Jenkins, T.C.A. § 29-20-102(2) includes sheriffs and deputies in the
               definition of “employee.”

Id. (emphasis added).

       We hold, based on Jenkins and our decision in Hensley, that the plaintiff’s cause of action,
being an action for negligent operation of an automobile by a regular deputy sheriff acting in the
course and scope of his employment, is controlled by the GTLA, which supersedes Tenn. Code Ann.
§§ 8-8-301, et seq., as to such conduct. See Tenn. Code Ann. § 29-20-202(a) (2000). Since the
complaint in the instant case was filed more than one year from the date of the accident, it is time-
barred. See Tenn. Code Ann. § 29-20-305(b). See also Williams, 773 S.W.2d at 523.

                                                 V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant Rose
F. Warnick. This case is remanded to the trial court for the collection of costs assessed below,
pursuant to applicable law.




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    _______________________________
    CHARLES D. SUSANO, JR., JUDGE




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