                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 27, 2000 Session

     TERRY BATES LYNN, ET AL. v. CITY OF JACKSON TENNESSEE

                 A Direct Appeal from the Circuit Court for Madison County
                   No. C-99-170    The Honorable Roy Morgan, Jr., Judge



                     No. W1999-01695-COA-R3-CV - Filed January 9, 2001


Plaintiffs, personal representative of decedent, an adult child of decedent, and a minor child of
decedent, filed a wrongful death suit more than one year after decedent’s date of death against the
City of Jackson pursuant to the Tennessee Governmental Tort Liability Act (TGTLA). Plaintiffs had
filed suit within one year of the date of death in federal court, and after federal court dismissed the
case, they filed the instant case two days later in circuit court. The circuit court dismissed plaintiffs’
case because it was not filed within one year of the accrual of the cause of action as mandated by
TGTLA. Plaintiffs have appealed.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, joined.

Donna Brown Wilkerson, Jackson, For Appellants, Terry Bates Lynn, Steven Todd Bates and John
Darryl Bates

John D. Burleson, Dale Conder, Jr. Jackson, For Appellee, City of Jackson, Tennessee

                                               OPINION

       Plaintiffs, Terry Bates Lynn, personal representative of the Estate of Howard Darryl Bates,
deceased, and as next friend and parent of Steven Todd Bates, a minor, and John Darryl Bates, sued
the City of Jackson for the wrongful death of Howard Darryl Bates, deceased, pursuant to the
Tennessee Governmental Tort Liability Act (TGTLA).

       On October 25, 1997, Howard Darryl Bates committed suicide while incarcerated in the
Jackson City Jail. Plaintiffs, Steven Todd Bates and John Darryl Bates, are decedent’s children. On
October 23, 1998, Terry Bates Lynn, Plaintiffs’ mother, filed an action as personal representative of
decedent’s estate and on the Plaintiffs’ behalf in federal court, alleging claims under 42 U.S.C. §
1983 and the TGTLA. On May 3, 1999, the United States District Court in Jackson, Tennessee,
dismissed the TGTLA action without prejudice, finding that TGTLA grants exclusive jurisdiction
to the state circuit courts and, alternatively, declined to exercise jurisdiction over the state law
claims.

        Plaintiffs then filed the TGTLA action in Madison County Circuit Court on May 5, 1999.
The Circuit Court granted Defendant’s Rule 12.02(6) Motion to Dismiss based upon the twelve (12)
month statute of limitations under T.C.A. § 29-20-305(b). Plaintiffs appeal and present two issues
for review: (1) Whether the trial court erred in granting Defendant’s motion to dismiss when both
of the plaintiff children are under the age of nineteen (19) years; and (2) Whether the trial court erred
in granting Defendant’s motion to dismiss when a separate cause of action was filed in federal court
within one (1) year of Plaintiffs’ decedent’s death.

        A rule 12.02(6) motion tests the sufficiency of the complaint and admits the truth of the
relevant and material averments of the complaint but asserts that the complaint on its face does not
state a cause of action. See Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997). For the reasons
discussed below, we affirm the ruling of the trial court.

        Plaintiffs bring this action against the City of Jackson under TGTLA, wherein sovereign
immunity is removed with respect to the actions of governmental entities under certain, limited
circumstances. See Cruse v. City of Columbia, 922 S.W.2d 492, 496 (Tenn. 1996). T.C.A. § 29-20-
305 provides that actions for tort liability arising under the Act must be brought within twelve (12)
months “after the cause of action arises.” T.C.A. § 29–20-305(b) (2000). Similarly, although there
is no specific statute of limitation for actions for personal injuries found in Tennessee’s wrongful
death statutes, courts have uniformly applied the one-year statute of limitations found in T.C.A. §
28-3-104, to wrongful death actions. See Jones v. Black, 539 S.W.2d 123, 123 (Tenn. 1976);
Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771, 774 (Tenn. Ct. App. 1983).

        In the case at bar, Plaintiffs do not dispute the statute of limitations under the TGTLA or the
wrongful death statutes, however, they argue that for several reasons, the period of limitations should
have been tolled. First, Plaintiffs claim that T.C.A. § 28-1-106 tolls the statute of limitations in this
case as to decedent’s children because both Plaintiffs were minors at the time of their father’s death.
That section provides:

                § 28-1-106. Incapacity

                        If the person entitled to commence an action is, at the time the
                cause of action accrued, either within the age of eighteen (18) years,
                or of unsound mind, such person, or such person’s representatives
                and privies, as the case may be, may commence the action, after the
                removal of such disability, within the time of limitation for the
                particular cause of action, unless it exceed three (3) years, and in that
                case within three (3) years from the removal of such disability.


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T.C.A. § 28-1-106 (2000).

        Plaintiffs reason that, since T.C.A. § 29-20-104 regarding applicability of other laws to the
TGTLA says that “the provisions of §§ 28-1-106 – 28-1-108 shall apply in causes of action arising
pursuant to” the Act, the statute of limitations in this action should have been tolled under the
incapacity section of the Code. T.C.A. § 29-20-104(b) (2000). As further support for this argument,
Plaintiffs point to Lockaby v. City of Knoxville, in which this Court, sua sponte, applied T.C.A. §
28-1-106 to extend the Plaintiff’s time to file a wrongful death suit under the TGTLA. 1997 WL
129115, at *3 (Tenn. Ct. App. 1997). While this decision is appealing, it appears to be in conflict
with the long standing theory that a wrongful death suit is the action of the deceased and not a new
cause of action in the beneficiaries. See Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 31 (Tenn. 1897).

        In Jones v. Black, 539 S.W.2d 123 (Tenn. 1976), the Supreme Court addressed the issue of
the effect of a plaintiff’s minority on a wrongful death action in Tennessee. In Jones, the child of
a woman who died following Caesarian surgery sued for her mother’s wrongful death.1 See id. at
123. The plaintiff in that case argued that the right of action for wrongful death accrues to the
beneficiary, “and that the minority or other disability of the beneficiary should prevent the running
of the statute of limitations until after the removal of such disability.” Id. Our Supreme Court
rejected this view, noting:

                 It is the opinion of the majority of the Court that to now hold that the
                 right of action accrues to the beneficiary, and that the statute of
                 limitations in a death action would depend upon the age or
                 competency of the beneficiary, would be contrary to the basic theory
                 and construction of the wrongful death statutes as laid down in many
                 cases in this state over a long period of time. This in all probability,
                 would impinge upon the theory as to the measure of damages which,
                 in the opinion of the majority, is a more equitable one than that
                 applied in states where the wrongful death statutes are deemed to
                 create a “new cause of action” in the beneficiary.

Id. at 124.

       Twenty-three years later, the Tennessee Supreme Court addressed the issue of loss of spousal
and parental consortium as a basis for damages under Tennessee’s wrongful death statute. See
Jordan, 984 S.W.2d at 595. While holding that such losses are indeed recoverable under the statute,
the Court emphatically affirmed that the right of action for wrongful death is that of the deceased,
and not that of the beneficiaries:

                         The plain language of Tenn.Code Ann. § 20-5-113 reveals
                 that it may be classified as a survival statute because it preserves


       1
           We note that the decedent mother was also a minor at the time of her death. See id.

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               whatever cause of action was vested in the victim at the time of death.
               Jones v. Black, 539 S.W.2d 123 (Tenn.1976); Milligan v. American
               Hoist & Derrick Co., 622 F.Supp. 56, 59 (W.D.Tenn.1985). The
               survival character of the statute is evidenced by the language "the
               party suing shall have the right to recover [damages] resulting to the
               deceased from the personal injuries." Thrailkill v. Patterson, 879
               S.W.2d 836, 841 (Tenn.1994) (emphasis added). Tennessee courts
               have declared that the purpose of this language is to provide "for the
               continued existence and passing of the right of action of the deceased,
               and not for any new, independent cause of action in [survivors]."
               Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131, 133 (Tenn.1899);
               see also Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574, 576
               (Tenn.1960); Memphis St. Ry. Co. v. Cooper, 203 Tenn. 425, 313
               S.W.2d 444, 447-48 (Tenn.1958); Jamison v. Memphis Transit
               Management Co., 381 F.2d 670, 673 (6th Cir.1967). Accordingly,
               Tenn.Code Ann. § 20-5-113 "in theory, preserve[s] the right of action
               which the deceased himself would have had, and ... [has] basically
               been construed as falling within the survival type of wrongful death
               statutes for over a century" because it continues that cause of action
               by permitting recovery of damages for the death itself. Jones, 539
               S.W.2d at 123-25.

Id. at 598.

        In their brief, Plaintiffs respond by directing our attention to the fact that Jones and its
progeny do not involve the TGTLA. This is true, but if anything, this argument just reinforces our
holding. The general rule is that “statutes in derogation of the common law are to be strictly
construed and confined to their express terms.” Ezell v. Cockrell, 902 S.W.2d 394, 400 (Tenn.
1995). By its own terms, the Act incorporates this rule by providing that “[w]hen immunity is
removed . . . any claim for damages must be brought in strict compliance with the terms of this
chapter.” T.C.A. § 29-20-201 (2000). Given the common law and statutory requirement of strict
compliance, we must hold that Plaintiffs cannot extend the statute of limitations under the TGTLA.
We cannot read into the Act the ability to extend the statute of limitations when such an extension
is not permitted for non-TGTLA claims.

         Plaintiffs’ second argument is that the supplemental jurisdiction section of the Judicial
Improvement Act of 1990, 28 U.S.C. § 1367, serves to toll the statute of limitations on a state claim
for thirty (30) days following its dismissal by a federal court for lack of jurisdiction or based on the
court’s decision not to exercise such jurisdiction. That section reads, in pertinent part:

                § 1367. Supplemental jurisdiction




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                       (a) Except as provided in subsections (b) and (c) or as
              expressly provided otherwise by Federal statute, in any civil action of
              which the district courts have original jurisdiction, the district courts
              shall have supplemental jurisdiction over all other claims that are so
              related to claims in the action within such original jurisdiction that
              they form part of the same case or controversy under Article III of the
              United States Constitution. Such supplemental jurisdiction shall
              include claims that involve the joinder or intervention of additional
              parties.

                                    *            *            *

                      (c) The district courts may decline to exercise supplemental
              jurisdiction over a claim under subsection (a) if--

                              (1) the claim raises a novel or complex issue
                      of State law,

                              (2) the claim substantially predominates over
                      the claim or claims over which the district court has
                      original jurisdiction,

                            (3) the district court has dismissed all claims
                      over which it has original jurisdiction, or

                             (4) in exceptional circumstances, there are
                      other compelling reasons for declining jurisdiction.

                      (d) The period of limitations for any claim asserted under
              subsection (a), and for any other claim in the same action that is
              voluntarily dismissed at the same time as or after the dismissal of
              the claim under subsection (a), shall be tolled while the claim is
              pending and for a period of 30 days after it is dismissed unless State
              law provides for a longer tolling period.

28 U.S.C. § 1367 (1993) (emphasis added). Similarly, T.C.A. § 28-1-115 provides:

              § 28-1-115. Dismissed federal court actions -

                     Notwithstanding any applicable statute of limitation to the
              contrary, any party filing an action in a federal court that is
              subsequently dismissed for lack of jurisdiction shall have one (1) year
              from the date of such dismissal to timely file such action in an
              appropriate state court.

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T.C.A. § 28-1-115 (2000).

        As to the applicability of the Tennessee statute, the Eastern Section of this Court resolved
this question in Nance v. City of Knoxville, 883 S.W.2d 629 (Tenn. Ct. App. 1994). In Nance, we
explained that it would be incongruous to hold that T.C.A. § 28-1-115 would apply to toll the statute
of limitations in a TGTLA action where courts have previously held that the general saving statute,
T.C.A. § 28-1-105 does not so apply. See id. at 631. We went on to say:

                This conclusion is supported by Williams v. Memphis Light, supra,
                quoting Automobile Sales v. Johnson, 174 Tenn. 38, 122 S.W.2d
                453, wherein it is said:

                                Where a statute creates a new liability or
                        extends a new right to bring suit and that statute
                        provides a time period within which to bring the
                        action, that period

                                ‘operates as a limitation of the liability
                                itself as created, and not of the remedy
                                alone. It is a condition attached to the
                                right to sue at all.’ As thus defined,
                                the right of action is conditional. The
                                limitation inheres in the right itself.

                                Since the Act [Governmental Tort Liability
                        Act] created a new liability, it must be strictly
                        construed. In so doing, we find that the twelve-month
                        limitation period of T.C.A. § 29-20-305(b) for
                        bringing an action is a condition precedent which
                        must be met before a suit may be brought against a
                        governmental entity.

Nance, 883 S.W.2d at 632 (quoting Williams v. Memphis Light, Gas, & Water Division, 773
S.W.2d 522, 523 (Tenn. Ct. App. 1988)).

        We believe the same logic applies to Plaintiffs’ claim that 28 U.S.C. § 1367(d) applies to toll
the statute of limitations in an action under the TGTLA. As we noted above, the TGTLA is a state-
sanctioned exception to the doctrine of sovereign immunity and, as such, must be strictly construed.
The twelve-month limitation for filing TGTLA claims is a condition precedent to the right to file a
claim under the statute, and therefore serves as both a statute of limitation and a statute of repose for
TGTLA claims. See Williams, 773 S.W.2d at 523. To hold that a federal statute can extend the
period during which the State of Tennessee has consented to be sued would essentially abrogate the



                                                   -6-
doctrine of sovereign immunity. As we noted in Williams, it is within the purview of the legislature,
not the courts, to abolish the Doctrine. See id. at 524.

       The order of the trial court is affirmed, and this case is remanded for such further proceedings
as may be necessary. Costs of the appeal are assessed against the appellants, Terry Bates Lynn, John
Darryl Bates, and Steven Todd Bates, and their surety.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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