IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 22, 2012

JAMES BOSTIC v. STATE OF TENNESSEE

Appeal from the Claims Commission of the State of Tennessee

No. T20110727 William O. Shults, Commissioner

No. E2011-02590-COA-R3-CV - Filed January 2, 2013

James Bostic (“the Claimant”), an inmate in the custody of the Department of Correction,

filed a claim against the State of Tennessee and others seeking money damages. The claim

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against the State was transferred from the Division of Claims Administration to the Claims

Commission pursuant to the provisions of Tenn. Code Ann. § 9-8-402(c)(2012). The State

filed (1) a motion to dismiss raising several defenses and (2) the affidavit of Brenda

Boatman. Based upon the affidavit, the Claims Commission granted the State summary

judgment and dismissed the Claimant’s claim. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission

Affirmed

CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

James Bostic, Mountain City, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General;

and Stephanie A. Bergmeyer, Assistant Attorney General, Nashville, Tennessee, for the

appellee, State of Tennessee.

OPINION

The only claim before us is the one against the State.

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I.

The factual predicate underlying the claim against the State is described in the

Claimant’s brief as follows:

On July 10, 2009[,] the Davidson County, Criminal Court, State

Judge, the Honorable, Randall Wyatt [o]rdered [d]ecided [sic]

to [r]elease [the Claimant] from the County/State’s [c]ustody

and [o]rdered State and Mental Health Officials to find [the

Claimant] a place to [l]ive so that this [r]elease could be

completed [b]ut the [o]fficials failed to assist [the Claimant]

because they knew that if they didn’t present a place to the Court

of where [the Claimant] would [l]ive that [the Claimant] would

be sent to prison (TDOC); . . .

As pertinent to his claim against the State, the Claimant identifies four individuals whom he

alleges were complicit in the failure to find him a place to live: Mental Health Coordinator

Jeff Blum, Assistant Metro Public Defender Jonathan F. Wing, Social Worker Terri Walker,

and Community Correction Case Officer Andreaka Smith. It is clear from all of the

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Claimant’s filings in this case that he is alleging that these four individuals intentionally

failed to act because they wanted him to be handed over to the Department of Correction for

incarceration rather than being placed in a community corrections program in Davidson

County.

The State filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(1), lack of

subject matter jurisdiction, and Tenn. R. Civ. P. 12.02(6), failure to state claim upon which

relief could be granted. In addition to a memorandum of law, the State exhibited to its

motion the affidavit of Brenda Boatman. The State’s motion alleged three basic theories of

defense: (1) failure to bring suit within the time set forth in Tenn. Code Ann. § 28-3-

104(a)(1)(2000) ; (2) that the four individuals identified by the Claimant were not employees

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of the State; and, (3) even if they were employees of the State, the State is immune from

liability for the intentional acts of its employees.

In some places in the record her first name is spelled Andreka. 2

Tenn. Code Ann. § 28-3-104(a)(1) provides, in pertinent part, as follows: 3

The following actions shall be commenced within one (1) year after the

cause of action accrued: . . . [a]ctions . . . for injuries to the person, . . .

false imprisonment . . . .

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As previously noted, the Claims Commission granted the State summary judgment and

dismissed the Claimant’s claim. It did so because it determined that the affidavit of Ms.

Boatman conclusively demonstrated that the four named individuals were not State

employees. The Claimant appeals asserting that the Commission erred in dismissing his

claim. This raises an issue of law that we review de novo with no presumption of correctness

attaching to the Commission’s judgment.

II.

The affidavit of Ms. Boatman negates Claimant’s inferred allegation that the four

named individuals are State employees. The affidavit provides, in pertinent part, as follows:

I am employed by the Tennessee Department of Human

Resources as an Administrative Services Assistant 4. In that

capacity, I act as the records officer which includes being

custodian of personnel and payroll records maintained by the

Department of Human Resources.

I have completed a search of the records maintained by my

office and have been unable to find a record of any persons

employed by the State of Tennessee on June 29, 2009, July 10,

2009, or any other time during 2009, named Jeff Blum, Jonathan

F. Wing, Terri Walker, and Andre[a]ka Smith.

(Paragraph numbering in original omitted.) This affidavit establishes that the individuals

were not employed by the State of Tennessee. The Claimant failed to submit any admissible

evidence contravening Ms. Boatman’s admissible evidence. Since the claim is based upon

the alleged vicarious liability of the State for these “employees” and since they were not State

employees, an essential allegation of the claim is not sustained and the trial court was correct

in granting the State summary judgment. See Martin v. Norfolk Southern Ry. Co., 271

S.W.3d 76, 83-84 (Tenn. 2008).

III.

We also find support for the Commission’s judgment in the Claimant’s assertion that

the four individuals acted intentionally, i.e., for the purpose of giving the criminal court a

reason not to place Claimant in a community corrections program in Davidson County.

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As previously noted, the claim clearly asserts intentional wrongdoing on the part of

the four named individuals. The State is immune from liability for the intentional acts of

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State employees. Tenn. Code Ann. § 9-8-307(d) (2012) (“The state will not be liable for

willful, malicious, or criminal acts by state employees . . .”) Thus, even if we assume, for

the purpose of discussion, that the named individuals or any one of them is a State employee,

there is no liability on the State for their intentional acts and the Claimant’s claim is subject

to dismissal pursuant to the State’s motion to dismiss because the facts set forth in the claim

do not make out a cause of action against the State. Tenn. R. Civ. P. 12.02(6).

IV.

While the State’s motion to dismiss also relies upon the Statute of Limitations, the

record before us does not conclusively show that the alleged misdeeds of the four individuals

occurred more than one year prior to the filing of the Claimant’s claim.

V.

The judgment of the Claims Commission is affirmed. Costs on appeal are taxed to

the appellant, James Bostic.

___________________________

CHARLES D. SUSANO, JR., P.J.

The claim uses the word “intentionally,” when characterizing the “employees’ ” conduct.

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