# FILED
January 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE HAROLD EUGENE SMITH, ) ) Plaintiff/Appellant, ) Dav idson Circu it No. 95C -2036 ) VS. ) A ppeal No. 01A 01-9607-CV-003 38 ) METROPOLIT

AN GOVERNMEN T OF ) NA SHVILLE A ND DA

VIDSON ) COUNTY , TENNESSEE, et al, ) ) Defendants/Ap pellees. )
APPEAL FROM THE CI RCUI T COURT OF DA VIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE HAMILTON V. G AYDEN, JR ., JUDGE

HA ROLD EUGEN E SMITH, p ro se Nashvil le, Tennessee
PAUL D. KR IVACKA METROPOLIT

AN AT TORNEY Nashvil le, Tennessee Attorney for Appellee Metr opolitan Government of Nashvill e and Davids on County
GEORGE E. BARRETT PHILLIP A. PURCELL BA RRETT, JOH NSTON & PA RSLEY Nashvil le, Tennessee Attorneys for Appellees M etropolitan D evelopment and Hous ing Age ncy, G eral d F. Ni cely, Bob Howard and Pau l Jennin gs

AF FIRMED
ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J.2

Plai ntiff Harold Eu gene Sm ith, app earing pro se , appeals the tr ial court’s final order which dis miss ed th e Pl aint iff ’s complaint agai nst Defendants/Appell ees Metropoli tan Government

of Nashville and Davidson County (Metro), Metrop olitan Development and Housing Agency (MDHA), and two MD HA emp loyees, Bob Howard ( Howard) and Paul Jennin gs (Jen nings) . The trial court dismiss ed the Plaintiff’s claims agai nst Metro and MDHAbased on the one-year statute of limitati ons contained in the Tennessee Governmental Tort Liabili ty Act. See T.C.A. § 29-20- 305(b) (Supp. 1992). Regar ding the Plaintiff’s other

claims, the t rial court entered summary judg ment in favor of How ard and Jennin gs based on the affidavi t, depositions , and doc ument s filed in thi s case. For the
reasons here inaf ter st ated , we affirm the trial cour t’s dismiss al of the Plainti ff’s complaint.

This lawsuit

arose out MD HA’s efforts duri ng the s umm er of 1992 to remove the Plai ntiff and his posses sions from proper ty located at 521 SouthgateAvenue in N ashvill e, Davidson County, Tennes see. The property formerly was owned by the Plaintiff’s family but had been condemned by MDHA. The Pl aintiff’s complaint , filed June 27, 1995, contains the following factua l allegations:

8. By

letter dated Ap r il 17, 1992, Defend ant Howard notified Plaintiff that Defendant MDHA was planning to purchase pr operty located at 521 Southgate Avenue in Nash ville, Davidson Cou nty, Tennessee. Defen dant MDHA was acting pu rsuant to a Con demnation Ordinance passe d by[Metro’s] County Co uncil, . . . . At the ti me the letter was received by Plai ntiff, P laintiff resided and had resided at 521 South gate Avenue since 1975. Although Pl aintiff did not hold l egal titl e to the pro perty, he w as pursuing a lawsuit againsthis father, James A. Smi th, in the Ci rcuit Cour t of Davidson County, c laiming an eq uitable interest in the prop erty based on a resulting trust from his grandmother.

9. On numerous occasi ons, Plaintiff talk ed with Defendant Howard by telephone and a ttempted to obtain as sistance for relocation. During these conversations, Defend ant Howard wa s rude and condescending to Plaintiff, and on one occa sion, Defendant Howard told Plaintiff that he was going to “throw your damn bl ack, squatti ng ass out.” 10. DefendantMDHA obtai ned title to theproperty at 521 Southgate Ave nue on July 13, 1992, throug h a Court Or der whic h did not becomefinal until Aug ust 13, 1992. P lai ntiff did not be come aware of this change of title until July 13, 1992, when he received a l etter from [MDHA’s Execu tive Director

] dated July

10, 1992, .

. . . [Th e] l ette r in forme d Pl aint iff that it wa s the intention of MDHA to remove all Plaintiff’s possessions from the premises on July 14, 199 2.3 11. On July 14, 1992, Plaintiff filed a l awsuit i n the Chancery Court for Davidson County seeking to enjoin MDHA from taking poss ession of the property

located at 521 Sou thgate Aven ue. 12. On July 14, 1992, and wit hout an y notic e to P lai ntiff, DefendantJennings, a cting on behalf of MDHA, obt ained acriminal w arrant against Plain tiff all egingthat Pl ainti ff had comm itted the crime of cri minal trespass. On July 15, 1992, Defendan ts Howard and Jennings, and several other unknown officers

and employees of MD HA, executed the warrant and arrested Plaintiff at his home at 521 South ga te Av enue . Be caus e Pl aint iff could not post bond in the amountof $5,000.00, he remained in custody for approximately36 hours, until General Sessions Judge Gale Robinso n, Junior released Plaintiff on his own recog nizance. On October 26, 1992, the State of Tennessee, through its Assistant Distric t Attorney

General, dis missed the cri mina l ac

tion aga ins t Pl aint iff. 13. W hile Plainti ff was incarcerated, agents of the MDHA removed numerous possess ions of Plainti ff from the property which, to this date, have not b een returned to P laintiff. This pr operty inc luded, but is not limited to, irreplaceable business recor ds in the form of computer data, programs, correspondence, books, m icrofilm, video and audio tape s, compact discs, tools, computer and oth er [electronic] equipment, household furni ture , appliances, personal clothing, and many childhood and fam ily mementos. 14. Plai ntiff then negotiate d by and through his co unsel Sam Lipshie with M DHA attorney Ge orge Barrett an agreement unde r which MDHAagreed t o allow P laintiff to recover what pr operty was left at 521 Southgate Avenue pri or to September 9, 1992. Despitethis agreement, and in direct brea ch of this agreement, MDHA, o n September 8, 1992, looted and bulldozed the prem ises at 521 Southgate Avenue, thereby causingthe Plaintiff further and s ubstantial har m and damages to hi s property

.

Based on these factual al legations, the Plaintiff asser ted claims ag ainst the Defendants for false arrest and f alse impris onm ent, malicious prosecution an d abuse of process, outrageousconduct and intentiona l infliction of emotio nal distress, and trespass to chattels and/

or conver

sion. Metro responded by filing a moti on to dismiss, contending thatthe Plaintiff’s complaint failed to state a claim u pon which r eliefcould be granted, see T.R.C.P. 12.02(6), and that, in any event, the Pl aintiff’s claims were bar red by the on e-year statute of limitations contained in the Tennessee Gover nmental Tort Liabi lity Ac t. Se e T.C.A. § 29-20-305(b ) (Supp. 1992) . The r emain ing D efendants also filed a motion to dismiss pursuant to rule 12.02(6) and, i n the alternati ve, a motion for summary judgment. See T.R.C.P. 56.02.4

After the t ria l co urt

ente red itsfina l order gra ntin g th e De fe n dants’ motions an d dismissingthe Plaintiff’s comp laint, the Plaintiff filed a motion to set aside the trial court’s final order. The t rial court denied the Plai ntiff’s motion, and thi s appeal followed.
On ap pea l, th e Pla inti ff raise s two p roce dura l issu es f or revi ew: I.[W hether] t he circuit court erred in allow ing the admis sion into the t rial re co rd [of] the October 11, 1995, document entit led; “Reply Brief of Defendants MDHA, Howard a nd Jennings.” II.[W hether] the circui t court abused i ts authority in not settin g aside its order which deni ed [the Plainti ff’s] constitution ally g uaranteed rig hts.

We first rejec

t the Plaintiff’s cont ention regar ding the tr ial court’ s admission into the record of the Oct ober

11, 1995, Reply Brief because the record on appeal fa ils to reflect thatthe Plaintiff obj ec ted to admission of the brief below . The trial court conducted a hearing on the Defendants’ mot ions to dismi ss on October 13, 1995. On October 9, 1995, the Plaintiff f iled a response to the Defendants’ motions . Accordingto the Plainti ff’s brief
on appeal, the Defendants MDH A, Howar d, and Jennings

filed the Reply

Brief on October 11, 1995, two day

s before the heari ng on the motions to dismiss. The Plai ntiff contend s that the trial court abused i ts discreti on in considering the Defendant s’ Reply Br ief at the October 13 hearing b ecause the Defenda nts failed to serve this document upon the Plai nti ff by 5:00 p.m., Wednesday, October 11, 1995, in violati on of Local Rule 12. See Davidson County Cts. R. 12.04(e) (requir ing that re plies to res pon ses to mot ions “be served on all other parties no later than 5:00p.m. on the Wednesday before the Friday on which the motion is to be heard”).

This issue is w ithout merit. The record on appeal fails to contai n either the Oc tober 11, 1995, Reply Brief or a transcript of the October 13, 1995, hearing during w hich the tri al court allegedly co nside red the Reply Brief. Without such a recor d, we are u nable to determine whether th e trial cour t improperly

admitted the Repl y Brief at t he hearing bel ow or whether th e Plaintiff raise d a timely objection to i ts introducti on. See State v. Bol ing , 840 S.W.2d 944, 951 (Tenn. Cr im. App. 1992) ( stating that , pur sua nt to T.R.A.P. 24(b), appellanthas duty “to prep are a record which conveys a fair, accurat e and complete1 Altho ugh the P laintiff ha s no t app eale d the trial cou rt’s dism issa l on su bsta ntive g roun ds, w e no te

thatthe t ri al court’ s rul ing on the st atut e of l imit ati ons defense appe ars t o be corr ect. The events whi ch fo rm ed the ba sis of t he Pla intif f’s co m pla int o cc ur re d in 19 92 , bu t the Pla intif f did no t file his co m pla int u ntil Jun e 27 , 199 5. See T.C .A. § 2 9-20 -305 (b) (S upp . 199 2) (p rovidin g tha t any ac tion ag ains t a governm ental entity “must be c om m enced within t welve (12) m onths after the caus e of action arises”). W e a lso ag re e w ith th e tr ial c ou rt’s rulin g th at th e s av ing s s tatu te d id n ot p re ve nt d ism iss al o f th is action

. See T.C.A. § 28-1-1 15 (Supp. 1995). The affi davi t and materi als f il ed in support of t he motion f or summ aryjudgment i ndicat ed thatthe Pl aint if f fi led a simil ar act ion i n federa l di stri ct court i n June 1993 an d th at th e fe de ra l co ur t, by o rd er en ter ed Ju ne 29 , 19 94 , dis m iss ed the Pla intif f’s sta te- law cla im s “wi thoutprej udice f or l ack of jur isdi cti on.” The savin gs stat ute pr ovi des that , “ [n] otwi thst anding any ap plic ab le s tatu te o f lim itatio n to the co ntr ar y, an y pa rty filin g a n a ctio n in a fe de ra l co ur t tha t is sub seq uen tly dism isse d for lack of juris diction sha ll have o ne (1 ) year fro m the d ate o f suc h dism issa l to timely fi le such action in an approp riate state court.” T.C.A. § 28-1-11 5 (Supp. 199 5). This court previ ously

has hel d, howeve r, thatthe sav ings st atut e does not apply to act ions ag ainsta govern mental entity und er the Te nne sse e G ove rnm enta l Tor t Liability Act. W ebs ter v. T enn ess ee B d. of R ege nts , 902 S.W .2d 4 12, 4 14-1 5 (T enn . App . 199 5); N an ce v. C ity of Kn ox ville , 883 S. W .2d 629, 631-32 ( Tenn. App. 1994). 5 accountof what trans pired in the t rial court with respect to the issues which form the basis of the appeal”); Barnhill v. Barnhill , 826 S.W.2d 443, 458 (Tenn. App. 1991) (holdi ng that, where appellant failed to make appropri ate objection at trial court level , issue was waived on appeal).
We also reject the Plainti ff’s argument that t he trial cour t’s refusal to set aside the final order dismi ssing the Plaintiff’s c laims resul ted in adenial of the Plai ntiff’s constituti onal rightsof due process a nd equal protection under the Tennessee and Uni ted States Constitutions. See U.S. Const. amends. V, XIV; Tenn. C onst. art. I, § 8; Tenn. Const. art

. XI, § 8. In makingthis argument, the Plaintiff contends that he is entitled to his day in court to have the ca se determined on i ts merits.

In dismissi ng th e Plaintiff’s cl aims, the tri al court rel ied primari ly on the one-year statute of limitations contained in the Tennessee Governm ental Tort Liabi lity Ac t. 1 Tennessee cour ts ha ve repeatedly held that simi lar statutes of limitation and r epose do not result in a denial of equal protec tion or due pr

ocess rig hts under either the Tennessee or United States Const itutions. Jones v. Five Star Engineering, Inc. , 717 S.W.2d 882, 883 (Tenn. 1986) (equal protection and due process); Harmon v . Angus R. Jessup Assocs. , 619 S. W.2d 522 , 524-25 (Tenn. 1981) (equal pr otection); Harrison v . Schrader , 569 S.W.2d 822, 824-27 (Tenn. 1 978) (equal protection) ; Brown v . State , 928 S.W.2d 453, 455-56 (Tenn. Crim. App. 1996) (equal prote ct io n and due process). Additiona lly, such statutes do not viol ate the Tennessee Constitution’s o pen courts provision, which pr ovides2 W e simil arl y concl ude thatthe summ aryjudgment proce dure employ ed in thi s case di d not

violate th e du e pro ces s pro vision s of th e T enn ess ee a nd U nited S tates Co nstitution s, or th e op en c ourts prov ision o f the T enn ess ee C ons titution. See, e. g. , Fat her & So ns L umber& Bl dg. Sup pl i es v . NLRB , 931 F.2d 1093, 1096 (6t h Cir. 1991) ( reject ing employ ers’ content ion t hat NLRB vi olat ed thei r due pr ocess rights by refu sing to co ndu ct evid entiar y hear ing af ter em ployers perm itted de fau lt sum m ary jud gm ent to be entered ag ainst them). T he sum m ary judgm ent process “is designed to provide a quick, inexpen sive m ean s of c onc luding cas es, in w hole or in pa rt, upo n iss ues as to whic h the re is n o ge nuin e disp ute regarding m aterial f acts.” Byr d v . H all , 847 S. W .2d 208, 210 (Tenn. 1993). On appeal, the Pl aint if f has fai led t o art icul ate any genui ne issue of materi al offact requi ri ng a tr ial on the merits i n thi s case. 6 that“all courts shall be open” and that “every man, foran injury done him in his lands, goods, person or

reputation, sh all have r emedy by duecourse of law, and right and justice administered without s ale, denial, or delay.” Harrison , 569 S.W.2d at 827 (quotingTenn. Const. art. I, §17); accord Five Star Engineeri ng , 717 S.W.2d at 883; Harmon , 619 S.W.2d at 524. 2

The judgment

of the trial court is her

eby affirmed. Costs on appeal are taxed to the Plai ntif f, f or whic h exec utio n ma y issue if ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.