IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 26, 2016 Session1

MOUFAK SAKAAN v. FEDEX CORPORATION, INC., ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-001718-5 Rhynette N. Hurd, Judge

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No. W2016-00648-COA-R3-CV – Filed December 21, 2016

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The Plaintiff filed suit against a number of corporate and individual Defendants alleging 

claims for intentional and negligent misrepresentation. After filing answers to the 

complaint, the Defendants moved for judgment on the pleadings on the basis that the 

asserted claims were time-barred. The trial court granted the motion and dismissed the 

Plaintiff’s case with prejudice. Discerning no error in this decision, we affirm.

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

Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN 

STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

Justin E. Mitchell, Memphis, Tennessee, for the appellant, Moufak Sakaan.

Carl K. Morrison, Memphis, Tennessee, for the appellees, FedEx Corporation, FedEx 

Corporate Services, Inc., Chris Wood, Michael Dearen, and Robert Morrison.

OPINION

Background and Procedural History2

 

1 Oral argument in this case was heard at Union University in Jackson, Tennessee.

2 The basic background facts herein are taken from the Plaintiff’s complaint. Because the trial court 

resolved this case by granting a motion for judgment on the pleadings filed by the Defendants, we 

presume those facts to be at true at this stage of the proceedings. See McClenahan v. Cooley, 806 S.W.2d 

767, 769 (Tenn. 1991) (citing Trigg v. Middle Tenn. Elec. Membership Corp., 533 S.W.2d 730, 732-33 

(Tenn. Ct. App. 1975)) (“In light of the fact that this case was dismissed on a motion for judgment on the 

pleadings . . . we are bound to treat as false all allegations of the Defendant, the moving party, which are 

denied, and as true all well-pleaded allegations contained in the pleadings of the Plaintiff, the opponent of 
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Plaintiff/Appellant Moufak Sakaan (“Mr. Sakaan”) is a former employee of two 

FedEx companies, where he worked as a software platform liaison. He was hired at 

FedEx Express in 1998, and in 2007, he obtained a transfer to FedEx Corporate Services, 

Inc. Both FedEx Express and FedEx Corporate Services, Inc. are wholly-owned 

subsidiaries of FedEx Corporation. 

In December 2012, FedEx Corporate Services, Inc. sent Mr. Sakaan a proposed 

confidential severance agreement as part of a wide cost-cutting initiative. The proposed 

agreement offered Mr. Sakaan a lump sum severance benefit in exchange for voluntarily 

ending his employment. Following the offer of the proposed severance agreement, Mr. 

Sakaan engaged in a number of conversations with FedEx representatives, as well as his 

supervisor, Robert Morrison. Mr. Sakaan was concerned about the ramifications of 

accepting the severance package, namely whether it would preclude him from working 

on FedEx projects that were either fully or partially staffed through a third-party vendor. 

Through these conversations, Mr. Sakaan alleges he was assured that his acceptance of 

the severance agreement would not prohibit him from working on FedEx projects sourced 

through a third-party vendor. Mr. Sakaan subsequently signed the severance agreement 

on March 2, 2013.

Prior to leaving FedEx, Mr. Sakaan was hired by Tango, a third-party vendor with 

an existing FedEx relationship. Tango hired Mr. Sakaan to work on FedEx projects that 

were sourced through it. Mr. Sakaan eventually left his employment with FedEx on 

November 30, 2013. 

On December 19, 2013, Mr. Sakaan attended a meeting at FedEx as a Tango 

employee. While Mr. Sakaan was at the meeting, a member of the FedEx legal team 

recognized Mr. Sakaan and identified him as an individual that had accepted the 

severance agreement. After this legal team employee notified the litigation team and 

other departments about Mr. Sakaan’s participation in the meeting, Mr. Sakaan was 

removed from the premises. He has not worked on a FedEx project since that time. 

On April 21, 2015, Mr. Sakaan filed a complaint in the Shelby County Circuit 

Court against FedEx Corporation, Inc., FedEx Corporate Services, Inc., and three 

individual defendants (collectively, “the Defendants”).3 The complaint asserted claims 

for intentional and negligent misrepresentation and alleged that FedEx Corporation 

 

the motion.”).

3 The complaint also named as Defendants three “John Does,” who had allegedly provided information in 

response to Mr. Sakaan’s inquiries about the proposed severance agreement. 
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and/or its wholly-owned subsidiaries were vicariously liable for the misrepresentations 

made by the individual defendants. In relevant part, the complaint accused the 

Defendants of making false representations regarding the impact that signing the 

severance agreement would have on Mr. Sakaan’s ability to work on FedEx projects. 

The complaint averred that Mr. Sakaan was justified in relying on the truth of these 

representations when choosing to accept the severance package and stated that the 

Defendants’ actions had contributed to a loss of earnings and loss of earning capacity for 

Mr. Sakaan. The complaint specifically sought to recover a judgment in the sum of 

$600,000.00, plus interest, for the compensatory damages that were alleged to have been 

sustained. 

On May 29, 2015, FedEx Corporation, Inc., and FedEx Corporate Services, Inc., 

jointly filed an answer to the complaint. The named individual defendants later filed 

their respective answers to the complaint on June 30, 2015. Shortly thereafter, on July 

28, 2015, the Defendants collectively moved for judgment on the pleadings pursuant to 

Rule 12.03 of the Tennessee Rules of Civil Procedure. In relevant part, the Defendants 

argued that the claims asserted in Mr. Sakaan’s complaint were filed outside the 

applicable one-year statute of limitations period set forth in Tennessee Code Annotated 

section 28-3-104(a)(1). 

On August 7, 2015, Mr. Sakaan filed a response to the Defendants’ motion for 

judgment on the pleadings, as well as a motion for partial summary judgment as to his 

negligent misrepresentation claim. On November 25, 2015, Mr. Sakaan submitted a 

personal affidavit in support of his motion for partial summary judgment, and on 

December 4, 2015, he filed a statement of undisputed facts pursuant to Rule 56.03 of the 

Tennessee Rules of Civil Procedure. Later, on January 11, 2016, he filed the deposition 

of one of the individual defendants. Defendants responded to Mr. Sakaan’s motion for 

partial summary judgment on January 21, 2016, arguing, inter alia, that the motion had 

been prematurely filed. They submitted that if Mr. Sakaan’s case survived their motion 

for judgment on the pleadings, additional time should be afforded to complete discovery. 

A hearing on the Defendants’ motion for judgment on the pleadings took place a 

couple of weeks later on February 5, 2016. At the conclusion of the hearing, the trial 

judge orally ruled that a one-year statute of limitations applied to Mr. Sakaan’s claims. 

An order granting the Defendants’ motion for judgment on the pleadings was 

subsequently entered on February 19, 2016. Therein, the trial court specifically 

concluded that because the one-year statute of limitations contained in Tennessee Code 

Annotated section 28-3-104 applied to Plaintiff’s claims, such claims were time-barred. 
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Following the trial court’s dismissal of Mr. Sakaan’s claims with prejudice, this appeal 

ensued.4

Issues Presented

In his brief on appeal, Mr. Sakaan designates five issues for our review. Restated 

verbatim, these issues are as follows:

1. Whether the trial court erred in granting Defendants’ Motion for Judgment on the 

Pleadings, on the sole basis of a determination in-error that Plaintiff’s contractbased claims somehow sound within a one-year statute of limitations.

2. Whether the trial court erred in granting Defendants’ Motion for Judgment on the 

Pleadings, by even allowing Defendants to argue the motion: each of the 

Defendants specifically admitted in their separate Answers that the Complaint was 

brought within the applicable statute of limitations, and did not plead any 

affirmative defense with the requisite degree of specificity necessary to overcome 

preclusion on this basis.

3. Whether the trial court erred in granting Defendants’ Motion for Judgment on the 

Pleadings, given that such a motion is unripe until the pleadings are closed and 

given that the pleadings were not closed in this case.

4. Whether the trial court erred in granting Defendants’ Motion for Judgment on the 

Pleadings, by failing to apply the mandated Rule 56 standard—having considered 

numerous emails, correspondence, deposition testimony, and other documents 

outside the pleadings.

5. Whether the trial court erred in granting Defendants’ Motion for Judgment on the 

Pleadings, by entering an order dismissing the case with prejudice, rather than 

without prejudice—given that a prejudicial dismissal forecloses Mr. Sakaan’s right 

to bring a subsequent and separate breach-of-contract action.

 

4 As already noted, the order granting the Defendants’ motion for judgment on the pleadings was entered 

on February 19, 2016. Although that order did not comply with Rule 58 of the Tennessee Rules of Civil 

Procedure, an amended final order—compliant with Rule 58—was eventually entered by the trial court 

during the pendency of this appeal. Therefore, there is no impediment to our exercise of jurisdiction. See

McCurry Expeditions, LLC v. Roberts, 461 S.W.3d 912, 916 n.2 (Tenn. Ct. App. 2014) (noting that 

subject matter jurisdiction was properly exercised when the requirements of Rule 58 were satisfied after 

oral argument by way of the filing of a supplemental record).
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The Defendants articulate two issues in their brief, both of which are aimed at 

addressing whether the trial court applied the correct statute of limitations to Mr. 

Sakaan’s claims:

1. Did the Circuit Court correctly conclude that Sakaan’s claims for 

intentional and negligent misrepresentation are based in tort rather than in 

contract?

2. Did the Circuit Court correctly conclude that Sakaan’s claims are barred by 

the one-year statute of limitations applicable to tort claims for injury to the 

person?

Discussion

We begin our discussion by addressing the issues raised concerning the validity of 

the trial court’s decision to review the Defendants’ motion for judgment on the pleadings 

and the method by which the trial court actually conducted its review. As is evident 

above, Mr. Sakaan has raised three issues pertaining to these topics. First, he asserts that 

the Defendants’ motion should not have been entertained because the Defendants waived 

their right to assert a statute of limitations defense. Second, he argues that the motion for 

judgment on the pleadings was not ripe for consideration. Third, he argues that the trial 

court impermissibly considered matters outside of the pleadings without conducting a 

proper summary judgment analysis under Rule 56 of the Tennessee Rules of Civil 

Procedure. We do not find merit in any of these arguments.

Waiver

In paragraph 12 of Mr. Sakaan’s complaint, he alleged that his “action was 

brought within the applicable statutes of limitation and repose for such actions in the 

State of Tennessee.” In their answers to Mr. Sakaan’s complaint, each of the Defendants 

responded to this paragraph by stating that they admitted the allegation therein, “upon 

information and belief.” It appears that such admissions were inadvertent because later in 

their answers each of the Defendants specifically asserted that Mr. Sakaan was “barred 

from pursuing any actions . . . which are outside the applicable statutes of limitation.” 

According to Mr. Sakaan, the Defendants’ admissions operated to waive their 

ability to rely on a statute of limitations defense. Although he acknowledges that the 

Defendants’ answers also contained language asserting an affirmative defense predicated 

on the statute of limitations, he argues that such language was conclusory and did not 

satisfy the specificity requirements of Rule 8.03 of the Tennessee Rules of Civil 
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Procedure. For the reasons that follow, we disagree with Mr. Sakaan’s position that the 

Defendants waived their right to rely on a statute of limitations defense.

In his reply brief on appeal, Mr. Sakaan correctly cites the law regarding the effect 

of admissions contained within a defendant’s answer. It is true that when the allegations 

of a complaint are admitted, “the subject matter thereof is removed as an issue, no proof 

is necessary[,] and it becomes conclusive on the parties.” Rast v. Terry, 532 S.W.2d 552, 

554 (Tenn. 1976) (citation omitted). Indeed, “[a]dmissions in pleadings are judicial 

admissions that are conclusive on the pleader until withdrawn or amended.” Irvin v. City 

of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988) (citation omitted). It is 

important to recognize, however, that this principle extends to admissions in pleadings 

regarding issues of fact. See John P. Saad & Sons, Inc. v. Nashville Thermal Transfer 

Corp., 642 S.W.2d 151, 152 (Tenn. Ct. App. 1982) (citation omitted) (“Facts confessed 

in pleadings are binding on the parties[.]”). “A party is not ordinarily bound by 

admissions or averments of legal conclusions.” Nichols v. Blocker, No. 87-110-II, 1988 

WL 39569, at *2 (Tenn. Ct. App. Apr. 29, 1988). In our opinion, Mr. Sakaan’s averment 

that his case was “brought within the applicable statutes of limitation and repose for such 

actions in the State of Tennessee” amounted to nothing more than a legal conclusion, the 

determination of which would properly rest with the trial court. As such, the Defendants’ 

inadvertent assent to this legal assertion was not controlling. In any event, within the 

same answers that Mr. Sakaan finds support for what he contends are binding admissions, 

the Defendants raised a statute of limitations defense.

“A statute of limitations defense challenges the sufficiency of a particular claim, 

not the subject matter jurisdiction of the court in which the claim is filed.” Estate of 

Brown, 402 S.W.3d 193, 199 (Tenn. 2013) (citation omitted). Accordingly, if the defense 

“is not pleaded within the proper time and in the proper manner, it is deemed waived and 

cannot be relied upon as a defense.” Steed Realty v. Oveisi, 823 S.W.2d 195, 197 (Tenn. 

Ct. App. 1991) (citations omitted). Under Rule 8.03 of the Tennessee Rules of Civil 

Procedure, a party seeking to raise certain affirmative defenses, such as the statute of 

limitations, must, “[i]n pleading to a preceding pleading . . . set forth affirmatively facts 

in short and plain terms relied upon to constitute [the defenses].” Tenn. R. Civ. P. 8.03. 

Although Rule 8.03 requires that a statute of limitations defense be specifically pleaded, 

the failure to properly plead the defense will not always result in waiver. George v. Bldg. 

Materials Corp. of Am., 44 S.W.3d 481, 486-87 (Tenn. 2001) (citations omitted). The 

purpose of the specificity requirement under the Rule is to prevent trial by ambush. 

Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 554 (Tenn. Ct. App. 2013) (citation 

omitted). Thus, even when a party has failed to properly plead the defense, a waiver will 

not result if the opposing party has been given sufficient notice of it. As the Tennessee 

Supreme Court has explained:
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It is well settled . . . that if the opposing party is given fair notice of the 

defense and an opportunity to rebut it, failure to specifically plead a statute 

of limitations defense will not result in a waiver. [Sands v. State, 903 

S.W.2d 297, 299 (Tenn. 1995)]. “In other words, the purpose of the 

specific pleading requirement is to prevent a party from raising a defense at 

the last possible moment and thereby prejudicing the opposing party’s 

opportunity to rebut the defense.” Id. 

George, 44 S.W.3d at 487.

We fail to see how the Defendants waived their right to rely on a statute of 

limitations defense in this case. Moreover, we fail to discern any reasonable basis for 

concluding that Mr. Sakaan has been prejudiced. Although the Defendants’ answers 

arguably created some initial ambiguity as to their respective positions on the timeliness 

of Mr. Sakaan’s claims, the answers did nonetheless assert a statute of limitations 

defense. While we would agree that the presentation of that defense within the answers 

was done in a conclusory manner,5the defense was outlined in detail in the Defendants’ 

motion for judgment on the pleadings and accompanying memorandum, both of which 

were filed less than a month after the last answers in this case were submitted. This is not 

a case where the Defendants attempted to assert an affirmative defense on the eve of trial 

or failed to apprise Mr. Sakaan of their basis for the defense. Rather, it is clear that Mr. 

Sakaan had notice of the statute of limitations defense, and its basis, in the early stages of 

the litigation. Under the facts presented, he cannot reasonably claim any prejudice. We 

accordingly reject Mr. Sakaan’s assertion that the Defendants’ right to rely on a statute of 

limitations defense was waived. 

Ripeness

We next turn to Mr. Sakaan’s argument that the Defendants’ motion for judgment 

on the pleadings was not ripe for consideration. Pursuant to Rule 12.03 of the Tennessee 

Rules of Civil Procedure, a motion for judgment on the pleadings may be filed “[a]fter

the pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P. 

12.03. The type of pleadings allowed are outlined in Rule 7.01 of the Tennessee Rules of 

Civil Procedure:

There shall be a complaint and an answer; and there shall be a reply to a 

counterclaim denominated as such; an answer to a cross-claim, if the 

answer contains a cross-claim; a third-party complaint, if a person who was 

 

5

In pertinent part, the answers simply averred that Mr. Sakaan was “barred from pursuing any actions 

alleged in his Complaint which are outside the applicable statutes of limitation.” 
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not an original party is summoned under the provisions of Rule 14; and 

there shall be a third-party answer, if a third-party complaint is served. No 

other pleading shall be allowed, except that the court may order a reply to 

an answer or to a third-party answer.

Tenn. R. Civ. P. 7.01. In this case, Mr. Sakaan filed a complaint, and each of the 

Defendants filed an answer responding to the allegations asserted against them. No 

counterclaims were filed, nor were any cross-claims or third-party complaints. As such, 

the pleadings were clearly closed so as to permit a proper motion under Rule 12.03.

As the Defendants have observed, Mr. Sakaan’s brief appears to suggest that 

further discovery was needed before he could respond to the asserted motion for 

judgment on the pleadings. Such a suggestion lacks merit. A motion for judgment on the 

pleadings involves the consideration of nothing other than what its title suggests; the 

motion requests that a court grant judgment based on the pleadings alone. Accordingly, 

discovery is not necessary to sharpen any factual issues, and the trial court’s resolution of 

the motion is not dependent on anything other than the pleadings. 

Consideration of Matters Outside the Pleadings

As just noted above, a motion for judgment on the pleadings involves the 

consideration of nothing more than the pleadings. However, when matters outside the 

pleadings are considered by the trial court in ruling on a motion for judgment on the 

pleadings, a different analysis applies. This principle is outlined in the second sentence 

of Rule 12.03 of the Tennessee Rules of Civil Procedure:

If, on a motion for judgment on the pleadings, matters outside the pleadings 

are presented to and not excluded by the court, the motion shall be treated 

as one for summary judgment and disposed of as provided in Rule 56, and 

all parties shall be given reasonable opportunity to present all material 

made pertinent to such a motion by Rule 56.

Tenn. R. Civ. P. 12.03.

According to Mr. Sakaan, the trial court did not confine itself to the pleadings in 

reviewing the Defendants’ motion. As a result, he contends that the trial court’s failure to 

conduct a summary judgment analysis constitutes reversible error. In outlining the 

alleged instances where the trial court’s review considered matters outside the pleadings, 

Mr. Sakaan’s brief recites as follows:
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[T]he trial court considered the transcript of the deposition of defendant 

Robert Morrison, in which he admits to each and all of the elements of 

negligent misrepresentation. The court reviewed emails and other 

correspondence among the parties—including a letter written by Defendant 

Robert Morrison, in which he explains to his superiors why he reassured 

Mr. Sakaan that entering into the [severance agreement] contract would not 

prevent him from continuing to work on FedEx projects as an employee of 

third-party vendor Tango: an admission that he made negligent 

misrepresentations to Mr. Sakaan about the potential preclusive effect of 

the [severance agreement] contract. 

No doubt, the record transmitted to us on appeal contains the evidentiary materials 

referenced by Mr. Sakaan in his brief. We note, however, that these materials were not 

submitted in connection with the Defendants’ motion for judgment on the pleadings. 

Rather, they were filed by Mr. Sakaan in support of his motion for partial summary 

judgment.6 Moreover, contrary to the representations made by Mr. Sakaan, there is no 

indication that the trial court considered or relied upon these materials when adjudicating 

the Defendants’ motion for judgment on the pleadings. In fact, the evidence in the record 

confirms that the trial court restricted its attention to the pleadings alone. For example, 

during oral argument before the trial court, Mr. Sakaan’s counsel referenced something 

that one of the individual Defendants had admitted in his deposition. Immediately after 

this reference, the trial judge stated as follows: “But does it matter, going back to the 

same question as before? What I’m looking at is this complaint.” (emphasis added) 

Further, when making an oral ruling on the Defendants’ motion for judgment on the 

pleadings, the trial judge pronounced as follows: “I have carefully looked at the 

complaint, and as pleaded, this is not a breach of contract case. This is a 

misrepresentation case. It’s a tort. And the statute of limitations that applies is the oneyear statute of limitations as the subject matter is not property, but the person. And, 

therefore, I am granting this motion as a motion to dismiss.” (emphasis added) 

Mr. Sakaan’s assertion that the trial court considered matters outside the pleadings 

is not supported by the record. Accordingly, we conclude that the trial court did not err

by failing to conduct a summary judgment analysis under Rule 56 of the Tennessee Rules 

of Civil Procedure. Like the other procedural grievances raised by Mr. Sakaan, we find 

no merit in Mr. Sakaan’s arguments to the contrary. Because the trial court did not err in 

considering the Defendants’ motion for judgment on the pleadings and there is no 

 

6 We, like the Defendants, observe that Mr. Sakaan states inaccurately in his brief that the Defendants 

filed the deposition of Defendant Robert Morrison. The record plainly reflects that counsel for Mr. 

Sakaan filed this deposition on January 11, 2016. 
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indication that its analysis was predicated upon the consideration of impermissible 

matters, we now turn our attention to the substantive merits of the trial court’s analysis.

Trial Court’s Dismissal of Mr. Sakaan’s claims

As already noted, a motion for judgment on the pleadings may be filed “[a]fter the 

pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P. 

12.03. When a motion for judgment on the pleadings is made by defendants, as is the 

case here, “it is in effect a motion to dismiss for failure to state a claim upon which relief 

can be granted.” Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009) (citing 

Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998)). Such a motion tests the 

legal sufficiency of a complaint. It “admits the truth of all relevant and material 

averments in the complaint but asserts that such facts cannot constitute a cause of action.” 

Id. (citation omitted). “A complaint subject to dismissal based on the expiration of the 

statute of limitations fails to state a claim upon which relief can be granted.” Goetz v. 

Autin, No. W2015-00063-COA-R3-CV, 2016 WL 537818, at *3 (Tenn. Ct. App. Feb. 10, 

2016) (citation omitted), perm. app. denied (Tenn. June 24, 2016). On appeal, we 

review a trial court’s decision to grant a motion for judgment on the pleadings de novo, 

without a presumption of correctness. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. 

App. 2003) (citation omitted). 

In this case, the trial court dismissed Mr. Sakaan’s claims by determining that they 

were time-barred under the one-year statute of limitations contained in Tennessee Code 

Annotated section 28-3-104. On appeal, Mr. Sakaan argues that the trial court erred in 

applying a one-year limitation period. According to him, his claims were subject to the 

six-year limitation period applicable to breach of contract actions, see Tenn. Code Ann. § 

28-3-109, or alternatively, the three-year limitation period contained in Tennessee Code 

Annotated section 28-3-105. The Defendants, on the other hand, are adamant that the 

trial court was correct in determining that the one-year limitation period in Tennessee 

Code Annotated section 28-3-104 applied. Having studied the parties’ respective 

arguments, we agree with the Defendants that Mr. Sakaan’s claims were subject to a oneyear limitation period. 

In determining the applicable statute of limitations, “courts must ascertain the 

gravamen of each claim[.]” Benz-Elliott v. Barrett Enters., LP, 456 S.W.3d 140, 149 

(Tenn. 2015) (citations omitted). The gravamen of a claim is its “substantial point” or 

“essence.” Black’s Law Dictionary 721 (8th ed. 2004). In order to determine the 

gravamen of a claim, a court must “consider both the legal basis of the claim and the 

injury for which damages are sought.” Benz-Elliott, 456 S.W.3d at 141. 
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We first address Mr. Sakaan’s argument that the six-year statute of limitations 

codified at Tennessee Code Annotated section 28-3-109(a)(3) applies to his claims for 

relief. See Tenn. Code Ann. § 28-3-109(a)(3) (providing that “[a]ctions on contracts not 

otherwise expressly provided for” “shall be commenced within six (6) years after the 

cause of action accrued”). This argument can dispensed with rather quickly. Initially, we 

note that although this argument was raised in Mr. Sakaan’s appellate brief, he appeared 

to abandon it during oral argument before this Court; at that time, Mr. Sakaan simply 

submitted that the three-year limitation period in Tennessee Code Annotated section 28-

3-105 applied. Mr. Sakaan also appeared to disclaim any reliance on a six-year limitation 

period during the trial court proceedings, where the following exchange occurred:

The Court: So the statute of limitations to apply then is not a breach of 

contract statute of limitations for six years; is that right?

[Mr. Sakaan’s counsel]: Not a six-year statute, Your Honor, but the threeyear statute of limitations. 

In any event, it is clear that the six-year statute of limitations applicable to breach 

of contract claims does not apply here. Mr. Sakaan’s complaint did not allege that any 

contract had been breached, nor did he seek any relief that would be specifically tailored 

to such claims. Rather, the complaint sought to recover compensatory damages allegedly 

sustained by Mr. Sakaan due to the Defendants’ tortious conduct, i.e., their intentional 

and negligent misrepresentations. 

Having found that a six-year limitation period does not apply to Mr. Sakaan’s 

claims, we now shift to the central point of contention in this appeal. Whereas Mr. 

Sakaan contends that the three-year limitation period in Tennessee Code Annotated 

section 28-3-105 governs his claims, the Defendants argue that Mr. Sakaan’s claims are 

governed by the one-year limitation period in Tennessee Code Annotated section 28-3-

104. In addressing which of these respective positions is correct, we must determine 

whether the tortious conduct complained of involves an injury solely to Mr. Sakaan’s 

person or to his property. If the asserted claims involve an injury to Mr. Sakaan’s person, 

the one-year limitation period in Tennessee Code Annotated section 28-3-104 controls. 

See Tenn. Code Ann. § 28-3-104(a)(1) (emphasis added) (providing that “[a]ctions for 

libel, for injuries to the person, false imprisonment, malicious prosecution, [and] breach 

of marriage promise” must be commenced within one year after the cause of action 

accrued).7 If, on the other hand, the asserted claims involve an injury to property, they 

are subject to the three-year limitation period in Tennessee Code Annotated section 28-3-

 

7 The language of (a) was slightly altered and redesignated as (a)(1)(A)-(C) by way of a 2015 statutory 

amendment, which applies to causes of action accruing on or after July 1, 2015. See 2015 Tenn. Pub. 

Acts, ch. 388.
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105. See Tenn. Code Ann. § 28-3-105(1) (providing that “[a]ctions for injuries to 

personal or real property” must be commenced within three years from the accruing of 

the cause of action).

Like the trial court, we conclude that Mr. Sakaan’s claims were subject to the oneyear limitation period contained in Tennessee Code Annotated section 28-3-104. The 

allegations in the complaint are indicative of a tort to the person, not a tort involving an 

injury to a property interest. Indeed, whereas Mr. Sakaan seeks to recover for a loss of 

earnings and loss of earning capacity, there is no allegation that he had any type of 

property right to continue working on FedEx projects. Based on the facts in the 

complaint, it is clear that the alleged injuries are injuries to the person; again, there are no 

allegations reflecting that a vested contractual or property interest of Mr. Sakaan’s had 

been damaged. 

Because our review of the pleadings shows that the alleged loss is not related to 

any property right, the trial court was correct in concluding that Mr. Sakaan’s 

misrepresentation claims were subject to the statute of limitations period contained in 

Tennessee Code Annotated section 28-3-104. Moreover, the trial court did not err in 

concluding that Mr. Sakaan’s claims were time-barred. As already detailed, following 

his departure from FedEx, on December 19, 2013, Mr. Sakaan attended a FedEx meeting 

as a Tango employee. It was on that date that he was removed from the premises and 

should have realized that the Defendants’ alleged assurances to him were false. Because 

Mr. Sakaan did not file his complaint for damages until April 21, 2015, the trial court did 

not err in dismissing his claims as untimely. 

Dismissal with Prejudice

Lastly, we address Mr. Sakaan’s argument that the trial court erred in dismissing 

his claims with prejudice. According to Mr. Sakaan, this Court should remand the case to 

the trial court for the entry of an order without prejudice so as to allow him to properly 

resubmit his claims and have them adjudicated. We reject Mr. Sakaan’s assertion of error 

on this issue. The dismissal of a case on account of the statute of limitations is an 

adjudication upon the merits of the case. See Hippe v. Miller & Martin, PLLC, No. 

M2014-01184-COA-R3-CV, 2015 WL 2257175, at *3 (Tenn. Ct. App. May 12, 2015), 

perm. app. denied (Tenn. Sept. 17, 2015). The trial court’s dismissal of Mr. Sakaan’s 

claims with prejudice is hereby affirmed. 

Conclusion

For the foregoing reasons, we conclude that the trial court did not err in granting 

the Defendants’ motion for judgment on the pleadings. The costs of this appeal are 
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assessed against the Appellant, Moufak Sakaan, and his surety, for which execution may 

issue if necessary. This case is remanded to the trial court for the collection of costs, 

enforcement of the judgment, and for such further proceedings as may be necessary and 

are consistent with this Opinion.

_________________________________

ARNOLD B. GOLDIN, JUDGE