William Terry Wyatt v. Billie Carey

• Court: Court of Appeals of Tennessee
• Decided: August 25, 1999
• Docket: 03A01-9809-CV-00307
• Status: Published

Opinion

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.