                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  April 14, 2010 Session

GAYLE BERNARD AND EDWARD MICHAEL SHEA v. METROPOLITAN
 GOVERNMENT OF NASHVILLE/DAVIDSON COUNTY, TENNESSEE

                Appeal from the Chancery Court for Davidson County
                   No. 05-1605-II   Carol L. McCoy, Chancellor


                 No. M2009-00812-COA-R3-CV - Filed August 3, 2010


This is the second appeal by two former police officers who sought retirement gifts provided
for by Metro ordinance and police department policies. The officers requested the gifts and
were denied based on lacking good standing at the time they retired, as required by the
ordinance. The officers filed a declaratory judgment action as well as civil rights claims,
which the trial court dismissed on jurisdictional grounds and for failure to state a claim,
respectively. The Court of Appeals reversed the dismissal of the declaratory judgment action
and remanded. On remand, the trial court found that, because the officers were under
investigation for misconduct at the time of their retirement, they were not in good standing
as required by the ordinance and, thus, not entitled to the retirement gifts. The officers
appeal. Finding no error, we affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

David L. Raybin, Nashville, Tennessee, for the appellants, Gayle Bernard and Edward
Michael Shea.

Sue B. Cain, Paul Jefferson Campbell, II, Lora Barkenbus Fox, Nashville, Tennessee, for the
appellant, Metropolitan Government of Nashville/Davidson County, Tennessee.
                                                  OPINION

I. Background

       This is the second appeal in this case. The case was initiated as a declaratory
judgment action and was dismissed by the trial court on the defendant’s1 motion to dismiss
for lack of subject matter jurisdiction. On appeal, we held that a declaratory judgment was
the proper action, reversed the trial court and remanded the case for a trial on the merits by
judgment entered March 28, 2007; the mandate issued October 8, 2007.

       On remand, the plaintiffs filed a Second Amended Complaint on Sept. 5, 2008,2
seeking a declaration of their rights and for injunctive relief requiring the Department to issue
them a retirement gun, badge and ID card. The Second Amended Complaint also asserted
claims for breach of contract, violation of the Equal Protection Clause of the Fourteenth
Amendment, violation of Due Process under 42 U.S.C. § 1983, and violation of 18 U.S.C.
§ 926C mandating an identification card for retired officers when the officer retires in good
standing.

       In order to place the present appeal into context, we recite facts previously found by
this court:

                [Plaintiffs] E.J. Bernard (“Bernard”)3 and Edward Michael Shea
        (“Shea”) (collectively, “[plaintiffs]”) were Metropolitan police officers for
        Davidson County, Tennessee. Shea retired on January 1, 2001, [sic] after
        serving the force for twenty-eight years. Bernard retired on October 15, 2004,
        after serving the force for twenty-five years and one month. Both [plaintiffs]
        maintain that at the time of their retirement, they were in good standing with
        the police department. [Plaintiffs] assert that they are entitled to receive, upon
        their retirement, a gun, a badge, and a retired officer identification card. The
        Metropolitan Government of Nashville and Davidson County (“[defendant]”)
        has refused to grant [plaintiffs’] requests.




        1
            The parties will be referred to as their designations in the trial court.
        2
            The plaintiffs had been granted leave to file the Second Amended Complaint by an order of the
trial court entered on November 7, 2005.
       3
            E.J. Bernard died while the first appeal was pending; the case was revived by his estate.

                                                        -2-
      Section 24.44.110 [sic] of the Code of the Metropolitan Government of
Nashville and Davidson County, Tennessee provides as follows:

       2.44.110 Presentation of gun and badge to retiring officers.
       The metropolitan police department shall make a gift of a gun
       and a badge to all retiring police officers who have at least
       twenty-five years of service upon their retirement and also to
       police officers who, regardless of years of service, receive a
       disability pension from the metropolitan government. To be
       eligible to receive the gun and badge, the police officer must
       retire in good standing and be eligible to receive a service
       pension or receive a disability pension. This section shall apply
       to all officers who have retired since July 1, 1979, and meet all
       the conditions set forth herein.

Further, Section IX of the General Orders of the police department 94-10
provides in relevant part as follows:

       E. Identification Card
       5. The department shall make a gift of the identification card to
       all retiring employees who have at least twenty-five (25) years
       of service upon their retirement. To be eligible to receive the
       card, an employee must retire in good standing and be eligible
       to receive a service pension.
       6. The card being used by the employee at the time of their
       retirement will be returned to the Personnel Section where it will
       be altered to read “RETIRED” in bold letters, or another card
       specifically designed for retired employees will be issued to
       them. The card will then be presented to the employee at the
       same time the badge is presented.

        On December 21, 2004, [Plaintiff] Bernard, through counsel, requested
a retired officer card. The police department refused the request in a letter
addressed to Bernard’s attorney dated January 12, 2005. The letter was from
Deputy Chief of Police Steve Anderson (“Anderson”), and stated in relevant
part:

               Our current policies regarding the eligibility to receive an
       identification card upon retirement, General Order 94-10 section
       IX.E.5, require that “an employee must retire in good standing.”

                                       -3-
       While I agree that there is necessarily some subjectivity in the
       term “good standing”, certainly, in the ordinary sense of these
       words, this would require that the employee’s status at the time
       of retirement be positive or desirable in nature. I cannot make
       a determination that your client’s status, at the time of
       retirement, could be characterized as such.
               I also agree with your analysis that being “under
       investigation” at the time of retirement would not necessarily
       remove an employee from consideration for “good standing”
       status. If an employee was on schedule for a planned retirement
       and the investigation was for a relatively minor infraction, that
       employee should receive consideration for “good standing”
       status at the time of retirement. In the situation involving your
       client, however, the investigation concerns a matter very serious
       in nature which, if sustained, would have resulted in severe
       disciplinary action....
               In the event the procedures concerning the “good
       standing” requirement are altered at some time in the future to
       preclude consideration of the surrounding circumstances at the
       time of retirement, Mr. Bernard could be reconsidered.

       On February 14, 2005, [Plaintiff] Shea, through counsel, requested his
retirement badge, retirement gun, and retired officer card. The police
department refused the request in a letter addressed to Shea’s attorney dated
March 3, 2005. The letter was from Anderson, and stated in relevant part:

              Your letter requests that Mr. Shea now receive a gun and
       badge pursuant to Metropolitan Code Section 2.44.110. As you
       are aware, a requirement of this ordinance is that the officer
       “must retire in good standing” in order to be eligible to receive
       the gun and badge. Mr. Shea retired in the year 2002 while both
       a criminal investigation and an administrative investigation were
       in progress.... Taking this into account, even in a light most
       favorable to Mr. Shea, I cannot find any manner in which to
       characterize his retirement as being in good standing. Therefore
       I could not make a recommendation that he now receive a
       departmental gun and badge.
              Any indication that I may have previously given that the
       criminal charges pending at the time of Mr. Shea’s retirement
       was the sole reason for not allowing him to receive a gun and

                                      -4-
             badge would be in error. I apologize if I did not express myself
             more clearly. Whether it is Mr. Shea, or any other employee, all
             of the circumstances must be taken into consideration. While it
             is true that Mr. Shea did have criminal charges pending, the very
             same conduct that brought about the criminal charges are also
             violations of our own rules and regulations. Even if there were
             no criminal charges pending, the administrative investigation
             into this conduct indicated that departmental charges should be
             brought and that termination should be considered. Mr. Shea
             retired, as it was his right to do so, prior to departmental charges
             being initiated.
                      I also need to point out that any consideration as to Mr.
             Shea’s status at the time of his retirement was based on more
             than “some investigation” being in progress. The consideration
             was based on the underlying activities that gave reason to
             initiate both a criminal investigation and an administrative
             investigation....

Bernard v. Metropolitan Gov’t of Nashville and Davidson County, 237 S.W.3d 658, 659-61
(Tenn. Ct. App. 2007).

       Following some discovery on remand, a hearing was held and, in an order on February
6, 2009, the trial court found additional facts as follows:

      At the time he retired (September 16, 2004), Det. Bernard was under
      investigation by the Police Department’s Office of Professional Accountability
      (“OPA”) regarding allegations [that] he had acted inappropriately during his
      investigation of the death of Deanie Alley Kelly. At the time he retired, Det.
      Bernard was under investigation for generating false or inaccurate reports,
      intimidating a witness, and making disparaging comments to the witness about
      the witness[’] sexual orientation. Additionally, after his superiors removed
      him from the investigation of Ms. Kelly’s death, Det. Bernard sought out this
      witness and again acted in an inappropriate manner towards him. Seeking out
      the witness, after being removed from the case, amounted to insubordination.
      The OPA investigation into Det. Bernard’s activities occurred over several
      months, but Det. Bernard announced his retirement before the OPA
      investigators could interview him.

      Mr. Shea retired on January 1, 2002, while he was under investigation by the
      Metropolitan Police Department’s Burglary Division for accepting stolen

                                             -5-
       goods for resale. Mr. Shea shared space in a flea market/consignment store
       which trafficked in stolen items. Mr. Shea bought and sold used fishing
       equipment. A confidential informant presented Mr. Shea with goods which
       she represented were stolen and Mr. Shea paid her for them intending to resell
       them. This transaction was electronically recorded. After officers executed
       a search warrant on the business, Mr. Shea was read his rights and he was
       interviewed on August 25, 2001. During the interview he gave numerous
       contradictory statements about his involvement in the business.

       Mr. Shea was subsequently indicted by a Davidson County Grand Jury. He
       pled not guilty and received pre-trial diversion. After successfully completing
       his diversionary period, his criminal record was expunged. At that point Mr.
       Shea sought his retirement gun, badge and identification card.

        The trial court concluded that the gun, badge and identification card are not retirement
“benefits,” rather they are “gifts” to which an officer with 25 years of service is entitled so
long as the officer is in good standing at the time of his or her retirement and that he or she
is eligible to receive a service pension. The trial court also concluded that neither Detective
Bernard nor Officer Shea retired in good standing and were, thus, ineligible for the retirement
gift. The plaintiffs filed a motion to alter or amend, which was denied by the trial court; the
plaintiffs appeal the trial court’s final order.

       The plaintiffs contend that the gun, badge and identification card are retirement
benefits, not gifts, such that the trial court should have construed the ordinance and
department rule in their favor. The plaintiffs also contend that the trial court erroneously
refused to permit relevant discovery and dismissed their equal protection claims.4

II. Analysis

       A. Declaratory Judgment Action

        Tenn. Code Ann. § 29-14-103 allows “[a]ny person . . . whose rights, status, or other
legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have
determined any question of construction or validity arising under the instrument, statute,
ordinance, contract, or franchise and obtain a declaration of rights, status or other legal
relations thereunder.” The plaintiffs seek a declaration of their rights and status under


       4
          As more fully discussed, infra, on remand plaintiffs filed a Motion to Compel Discovery and a
Motion to Reconsider the Dismissal of Equal Protection Claims. A hearing was held on October 24, 2008,
and in an order entered on November 10, the trial court denied both motions.

                                                 -6-
section 2.44.110 of the Code of the Metropolitan Government of Nashville and Davidson
County, Tennessee and Section IX of the General Orders of the Metropolitan Police
Department 94-10.

        Metropolitan Code § 2.44.110 directs the police department to “make a gift of a gun
and a badge to all retiring officers who have at least twenty-five years of service upon their
retirement and also to police officers who, regardless of years of service, receive a disability
pension from the metropolitan government.” The ordinance, however, goes on to restrict the
presentation of a retirement gun and badge to those police officers who “retire in good
standing” and are “eligible to receive a service pension or receive a disability pension.”
Police General Orders 94-10, section IX contains similar language directing the department
to make “a gift of the identification card to all retiring employees who have at least
twenty-five (25) years of service upon their retirement.” The order also requires an employee
to retire in good standing and be eligible to receive a service pension to receive the card.

        The trial court found that the gun, badge and identification card were retirement
“gifts,” as opposed to “benefits,” to which retired police officers were entitled if they met the
conditions set forth in the respective ordinance and rule. The trial court also found that both
Bernard and Shea had more than 25 years of service with the department and were eligible
for their service pensions. The trial court concluded, however, that neither Bernard nor Shea
were in good standing with the police department at the time they retired and, consequently,
they were not entitled to the retirement gifts.

       The court’s findings of fact have not been challenged. The plaintiffs take issue with
the court’s interpretation of the relevant ordinance and rule. First, the plaintiffs contend that
the relevant items are retirement benefits and that as such the trial court should have
construed the ordinance and rule in their favor. Secondly, the plaintiffs contend that the term
“good standing” is an “objective” standard that requires the issuance of “mature charges”
before an officer can be considered not in good standing. The plaintiffs argue that by failing
to define the term “good standing” in its rules and regulations, the department created an
unwritten rule that allows for “subjective” decision-making, which the plaintiffs contend
should not be permitted.

       Review of the trial court’s conclusions of law is de novo with no presumption of
correctness afforded to the trial court’s decision. See Kaplan, 199 S.W.3d at 635.
Construction of a legislative enactment or administrative rule is a question of law which
appellate courts review de novo, without a presumption of correctness of the trial court’s
conclusions. Barge v. Sadler, 70 S.W.3d 683, 686 (Tenn. 2002); Hill v. City of Germantown,
31 S.W.3d 234, 237 (Tenn. 2000); Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d



                                               -7-
799, 802 (Tenn. 2000); Exxonmobil Oil Corp. v. Metro Gov’t. of Nashville and Davidson
County, 246 S.W.3d 31, 35 (Tenn. Ct. App. 2005).

        The primary rule of statutory construction is “to ascertain and give effect to the
intention and purpose of the legislature.” LensCrafters, Inc., v. Sundquist, 33 S.W.3d 772,
777 (Tenn. 2000); Carson Creek Vacation Resorts, Inc. v. Dept. of Revenue, 865 S.W.2d, 1,
2 (Tenn. 1993); Exxonmobil, 246 S.W.3d at 35; McGee v. Best, 106 S.W.3d 48, 64 (Tenn.
Ct. App. 2002). To determine the legislature’s intent, courts should limit their consideration
of an unambiguous statute to the words of the statute itself, giving these words their natural
and ordinary meaning. Tenn. Manufactured Housing Ass’n v. Metro. Gov’t., 798 S.W.2d
254, 257 (Tenn. Ct. App. 1990); Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 3 (Tenn.1986);
State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985). The statute should be read “without
any forced or subtle construction which would extend or limit its meaning.” Nat’l Gas
Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). As our Supreme Court has said,
“[w]e must seek a reasonable construction in light of the purposes, objectives, and spirit of
the statute based on good sound reasoning.” Scott v. Ashland Healthcare Center, Inc., 49
S.W.3d 281, 286 (Tenn. 2001) (citing State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995)).

        Applying these principles to Metropolitan Code § 2.44.110 and Section IX of the
police General Order 94-10, we first conclude that the gun, badge and identification card are
gifts, not benefits as the plaintiffs contend. Both the ordinance and the department rule
expressly refer to these items as gifts. We must presume that the legislative body selected
these words deliberately and “give effect to every word, phrase, clause and sentence of the
act.” Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975); In re Estate of Dobbins, 987
S.W.2d 30, 34 (Tenn. Ct. App. 1998); Tenn. Manufactured Housing Ass’n. v. Metro. Gov’t.,
798 S.W.2d 254, 257 (Tenn. Ct. App. 1990).

        The plain language of the ordinance and the rule show that the Metropolitan council
and the police department, respectively, intended to offer a gun, badge and identification card
as a gift upon retirement to all police officers serving at least twenty-five years with the
department as well as to those officers who receive a disability pension, regardless of the
number of years of service. The council and police department, however, conditioned these
gifts on the officer being in good standing with the department at the time he or she retires
and is eligible to receive a service pension. Neither the ordinance nor the police
department’s rules define good standing.

       In the Webster’s Third International Dictionary “good” means “having a favorable
or auspicious character,” “marked by or conveying approval or commendation,” “making
a favorable impression with respect to moral character: inspiring trust,” “something that
possesses desirable qualities, promotes success, welfare or happiness, or is otherwise

                                              -8-
beneficial,” “in a satisfactory, competent, or adequate manner.” “Standing” means “length
of service or experience esp[ecially] as determining relative place, rank, pay, or privilege,
“position or condition in society or in a profession: status; . . . esp[ecially] good reputation,”
“position relative to a standard of achievement.”5 While both “good” and “standing” have
more than one meaning, the meanings are not contradictory nor are they confusing when
“good” is used in conjunction with “standing.” We think that the ordinary person would
understand that, when not otherwise defined, a person in “good standing” is someone who
possesses desirable qualities and has achieved or maintained a good reputation. In the
context of a police officer’s employment, it would be generally understood that a person is
in good standing if he or she has performed in a satisfactory, competent, or adequate manner
such that he or she is in compliance with all applicable rules and regulations.

       Both Bernard and Shea knew at the time they chose to retire that they were under
investigation for conduct that, if proven true, failed to comply with department rules and
regulations. They admit that they “retired when they were under ‘clouds’ of investigation.”
Bernard had been removed from a homicide case assignment because of questions about the
veracity of his reports and inappropriate interactions with the victim’s family. Shea was
under criminal investigation because of allegedly illegal activities while off duty. These facts
do not support a conclusion that at the time of their retirement either Bernard or Shea were
considered by the department as having desirable qualities or performing their duties in a
completely satisfactory manner in compliance with department rules or regulations.

       The plaintiffs attempt to analogize use of the term “good standing” here with other
contexts in which the term is often used, such as employment law, homeowner’s association
policies, union membership, and persons who are members of a state bar. The plaintiffs
contend that very often the term “good standing” is defined by the employee handbook,
contract, or association by laws. The plaintiffs assert that “[t]his Court should not permit the
government to ‘import’ terms and constructions which are not within the four corners of the
pension provision under examination.”

       We find no merit in the plaintiffs’ assertion that because “good standing” is not
specifically or separately defined within the ordinance or the rules that it is “meaningless.”
We presume that legislative or administrative bodies select the words they use carefully and
deliberately and that the words used carry meaning and purpose. Tennessee Growers, Inc.
v. King, 682 S.W.2d 203, 205 (Tenn. 1984); Clark v. Crow, 37 S.W.3d 919, 922 (Tenn. Ct.
App. 2000). We also do not find that the department “imported” terms and constructions that


        5
           Standing can have a variety of meanings depending on the context, e.g., “up-right on the feet or
in place,” but the above cited definitions are the most applicable to the ordinance’s and rule’s use of the
word “standing.”

                                                   -9-
are inconsistent with the ordinary and natural meaning of the words “good standing.” While
an entity or organization might find it helpful to define “good standing” within their
particular context, e.g., to be a member in “good standing” in a home owner’s association
may require timely payment of dues or other fees, the plaintiffs point to no rule and we have
found none that requires every term within a rule or legislative enactment to be defined.
When words are not specifically defined by statute, the rules of statutory construction direct
us to use their ordinary meaning.6 Tenn. Manufactured Housing Ass’n., 798 S.W.2d at 257.

        The plaintiffs also assert that the “merits” of the investigations into their conduct is
irrelevant to their standing at the time they retired, that their decision to retire at the time they
did “cannot be transformed into anything sinister” and that they had every right to retire when
they did.7 We do not agree that the existence of unresolved questions regarding their
compliance with the department’s rules and regulations which required investigation at the
time of their retirement was irrelevant to the determination of whether they were entitled to
the gift of the gun, badge and identification card. Regardless of whether the investigations
would have led to “mature charges” or disciplinary action,8 the fact remains that Bernard and
Shea chose to retire at a time when their standing within the department was seriously in
question and before those questions were resolved. Consequently, we affirm the judgment
of the trial court that neither Bernard nor Shea was in good standing with the department at
the time they retired and, as a result, they are not entitled to the retirement gift of a gun,


        6
          Many legislative drafting guides advise that when words are being used in their ordinary or normal
dictionary meaning it is better not to define them as superfluous definitions can cloud meaning. See, e.g.,
Legislative Drafting Manual, New Mexico Legislative Council (2004); Legislative Research and Drafting
Manual, Massachusetts General Court, 5d. (2010); Legislative Drafting Manual, Office of Legal Services
for The Tennessee General Assembly (2003).
        7
           The plaintiffs raise concerns that the police department may institute investigations without merit
or prolong them indefinitely in order to prevent an officer from retiring in good standing and being eligible
to receive the gun, badge and identification card. While such concerns may be valid in the abstract, we think
that the application of the natural and ordinary meaning of the words “good standing” to the facts would
adequately address any such concerns. Additionally, there is nothing in this record to indicate that the
investigations into Bernard’s or Shea’s conduct were invalid or meritless attempts to discredit the officers
prior to their retirement.
        8
             The record reflects that the Office of Professional Accountability’s final report of the
administrative investigation into Detective Bernard’s conduct concluded that, even though Bernard was no
longer subject to departmental discipline, he violated General Order 04-03 Personal Behavior H, related to
discrimination, and I, related to intimidation, as well as General Order 04-03 Official Obligations S, related
to false or inaccurate reports. The record reflects with respect to Officer Shea that Deputy Chief of Police
Anderson informed Officer Shea that regardless of any pending criminal charges, “the administrative
investigation into [Mr. Shea’s] conduct indicated that departmental charges should be brought and that
termination should be considered.”

                                                    -10-
badge and identification card as provided for in the Metropolitan Code § 2.44.110 or Section
IX of Police General Order 94-10.

        B. Equal Protection Claim and Discovery Request

        The original complaint filed June 23, 2005, alleged generally that there were other
police officers “similarly situated to plaintiffs” who, upon retirement, received their gun,
badges and identification cards. On August 18, 2005, the defendant filed a motion to dismiss
all of the plaintiffs’ claims under Tenn. R. Civ. P. 12.02(6) for failure to state a claim. The
motion was heard and on September 26, 2005, an order was entered dismissing the equal
protection claim and including the following language: “the Equal Protection claim is
dismissed without prejudice.” The court declined to dismiss the remainder of the claims.

        On September 13, 2005, the plaintiffs filed a First Amended Complaint in which they
identify two former police officers whom they alleged retired while under investigation for
misconduct, but who were permitted to have a gun, badge and retirement certificate;
plaintiffs alleged that the “irrational policy constitutes a denial of equal protection, in
violation of the Fourteenth Amendment to the United States Constitution.” The defendant
filed a second motion to dismiss the equal protection claim on October 12, arguing that the
First Amended Complaint failed to state a claim for relief. In response, the plaintiffs filed
a motion to amend the First Amended Complaint. The proposed amendment identified five
retired officers, including the two previously identified, and the years in which they retired,
and alleged that these retired officers received their guns and badges upon retirement despite
being under investigation for misconduct. A hearing on the two motions was held and the
trial court, in an order entered on November 7, granted both motions; the order dismissing
the equal protection claims included the following language: “this claim is dismissed without
prejudice, even considering the amendments to the First Amended Complaint.” Plaintiffs did
not appeal either of the September 26 or November 7, 2005 orders dismissing the equal
protection claims.

     On September 5, 2008, following the remand of this case, plaintiffs filed a Second
Amended Complaint.9 On the same day, the plaintiffs filed a document styled “Motion to
Compel Discovery, Memorandum of Law in Support, Certificate of Good Faith Effort to

        9
          The Second Amended Complaint included the factual allegations proposed by the plaintiffs in their
October 14, 2005, Motion to Amend the First Amended Complaint. The Second Amended Complaint also
contended that the department’s application of the “good standing” requirement denied them of equal
protection of laws in violation of the Fourteenth Amendment to the United States Constitution and Article
11, Section 8 of the Tennessee Constitution. The section of the Second Amended Complaint containing this
claim was styled “THIRD CLAIM FOR RELIEF: VIOLATION OF EQUAL PROTECTION [This Claim
was Dismissed without prejudice by the Court by Order entered November 7, 2005]” (brackets in original).

                                                   -11-
Resolve Discovery and Motion to Reconsider Dismissal of Equal Protection Claims.” 10 A
hearing was held on the motion on October 24, 2008 and, by order entered November 10, the
court denied the motion to compel and denied the motion to reconsider the dismissal of the
equal protection claims. On January 13, 2009, the defendant filed a document styled
“Supplemental Answer to Second Amended Complaint” and, in response to the equal
protection claim, stated that “[t]he equal protection claim has been dismissed so no response
to this paragraph is necessary.”

        The plaintiffs appeal the trial court’s November 10 order asserting that the trial court
should have reinstated the equal protection claims and allowed discovery relevant to the
claims. The defendant asserts that the plaintiffs waived the issue of equal protection by
failing to appeal the trial court’s November 7, 2005 order when they appealed the order of
December 12, 2005, dismissing the remaining claims on jurisdictional grounds. The
plaintiffs argue that, because the trial court’s November 7, 2005 order stated that the
dismissal was “without prejudice,” the plaintiffs were allowed to re-assert the equal
protection claim in the future, which the plaintiffs contend that they did on September 5,
2008, when the case was remanded to the trial court.

        We find this issue is not properly before this Court. The trial court’s November 7,
2005 order granted the defendant’s motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6). A dismissal for failure to state
a claim is a dismissal on the merits. Isham v. City of Harriman, 447 S.W.2d 364, 366 (Tenn.
1969). Accordingly, a court should not dismiss a complaint for failure to state a claim
“unless it appears that the plaintiff can prove no set of facts in support of his or her claim that
would warrant relief.” Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Fuerst v.
Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn. 1978).

       The trial court’s November 7, 2005 order is somewhat ambiguous in that it adjudged,
on the merits, that the plaintiffs failed to state a claim upon which relief could be granted
“even considering the amendments to the First Amended Complaint” and yet dismissed the
claim “without prejudice.” A dismissal after an adjudication on the merits bars a plaintiff
from prosecuting any later lawsuit on the same claim, while a dismissal “without prejudice”
allows a plaintiff to re-file the lawsuit within applicable limitations period. See, BLACK’s
LAW DICTIONARY (8th Ed. 2004). Under the Tennessee Rules of Civil Procedure, a
dismissal operates as an adjudication on the merits except for a voluntary dismissal under
Tenn. R. Civ. P. 41.01 or a dismissal for lack of jurisdiction, improper venue or for lack of
an indispensable party. See Tenn. R. Civ. P. 41.02(3). While some discretion is given to the


        10
           In the body of the document, the plaintiffs identified the order dismissing the equal protection
claims as the order entered November 7, 2005.

                                                   -12-
court to specify in an involuntary dismissal order under Tenn. R. Civ. P. 41.02 that the order
does not operate as an adjudication on the merits, no such discretion is given to the court
when dismissing a claim or case based on a failure to state a claim.

        Assuming arguendo that the defendant’s October 12, 2005 motion to dismiss for
failure to state a claim was converted by the trial court to an involuntary dismissal under
Tenn. R. Civ. P. 41.02, the plaintiffs were required to re-file the dismissed claim within one
year of the entry of the trial court’s order dismissing the action, which, in this case, would
have been November 6, 2006. See Tenn. Code Ann. § 28-1-105.11 The plaintiffs did not file
their Second Amended Complaint until September 5, 2008, more than three years after the
trial court’s November 7, 2005 order dismissing the equal protection claim; nor did they
appeal the November 7, 2005 order when they appealed the trial court’s December 20, 2005
order dismissing the plaintiffs’ remaining claims.12

       Having found that the plaintiffs are barred from re-asserting a claim alleging
violations of the Equal Protection Clause of the Fourteenth Amendment of the U.S.
Constitution, the plaintiffs’ asserted issues that the trial court should have reconsidered its
previous dismissal of the claim and allowed discovery related to it are not properly before
us.

III. Conclusion

       In accordance with the principles of statutory construction, we apply the plain and
ordinary meaning to the Metropolitan ordinance and department rules and find that neither
Detective Bernard nor Officer Shea were in good standing with the police department at the


        11
             Tenn. Code Ann. § 28-1-105(a) provides in relevant part:

        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 rendered in favor of the
        plaintiff, and is arrested, or reversed on appeal, 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.

        12
            Since the trial court’s November 7, 2005 order dismissing the equal protection claim did not
dispose of all the claims of the plaintiffs, they had the choice of either seeking an interlocutory appeal of the
order under Tenn. R. App. P. 9 or waiting until a final judgment was entered by the trial court, which in this
case was December 20, 2005, and appeal all of the issues under Tenn. R. App. P. 3. There is nothing in the
record to indicate that the plaintiffs sought appellate review of the trial court’s November 7, 2005 order by
either method.

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time they retired as required by the ordinance and rules to be entitled to the retirement gift
of a gun, badge and identification card provided for in the same ordinance and rules.
Consequently, we affirm the judgment of the trial court. The plaintiffs’ remaining issues
related to discovery and the merits of their equal protection claim are not properly before us
and, thus, we decline to address them.

       Costs of the appeal are taxed to the plaintiffs.




                                                    ___________________________________
                                                    RICHARD H. DINKINS, JUDGE




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