### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 20, 2003

LLOYD E. WILLIAMS v. STATE OF TEN NESSEE

Appeal from the Claims Comm ission for the Eastern Grand Division No. 20300711 Vance W. Cheek, Jr., Comm issioner FILED JANUARY 23, 2004
No. E2003-01409-COA-R3-CV

Llo yd E. Williams (“Plaintiff”), who absconded while on bond, was tried, convicted, and sentenced on drug c harge s in absenti a . Years later, Plaintiff was apprehended and place d in prison. Plaintiff sued the State of Tennessee (“the State”) cla iming that the trial and sentencingviol ated various statutory rights o f his. The

State file d a motion to

dismiss. The Claims C ommission (“the Commission” ) gran

ted the Sta

te’s motio n to dismiss. Plaintiff appeals . We affir

m.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cla

ims Com mission A ffirmed; Case Rem

anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined.

Lloyd E. Williams, Tiptonville, Tennessee, pro se Appellant.
Paul G. Summers, Attorney Gene ral and Repor

ter; Mich ael E. Moo

re, Solic itor Gene

ral; and Tiffany Baker Cox, AssistantAttorney Gene ral, Nashville, Tennessee, for the Appellee, State of Tennessee.-2- OPINION Background
Plaintiff was arrested and indicted on drug c harges in 1992. He

was released on bond on January 5, 1993, but failed to appear at his trial. Plaintiff spoke to his attorney by phone sever

al times during the trial and after sentencing. Although his attorney advised him to turn himself in, Plaintiff declined to do so and remained a fugitive.

Plaintiff was convicted and sentenced in absenti a to fifty-f

o ur year s in prison by Judge Arden Hill. Plaintiff remained a fugitive until June of 2001, when he was apprehended and placed in prison to serve his sentence.

In November of 2001, Plaintiff filed a petition for post conviction relief claiming he ju st realized h e had suffered an injury . That petition was denied based upon the statute of limitations

. The denial of post conviction relief was affirme d by the Court o f Criminal

Appeals in September of 2002.

In November of 2002, Plaintiff filed his claim against the State with the Division of Claims Administration alleg ing that Judge Hill deprived him of his statutory rights because the indictmen ts agains t him were

void and b ecause

he was tried, convicted, and sentenced in absenti a . Plaintiff amended his claim to also allege he rece ived ineffective assistance of couns el from his court-appointed

attorne y, D onald Spurrell

. The claim was tra nsferr ed from th

e Division

of Claims Administration to the Claims Commission pursuant to Tenn. Cod e Ann. § 9- 8-402(c ). The Sta te filed a motion to d

ismiss. The

Co mmission g ranted the motion to dismiss based upon a lack of subject matter jurisdiction, failure to state a claim upon which rel ief can be granted, and the expiration of the statute of limitations. Plaintiff appeals to this Court.
Discussion
Alth ough not stated exactly as such, Plaintiff raises th ree issu es on app eal: 1) whether the Commission erred in holding it lacked subject matter jurisdiction; 2) whether the Commission erred in holding Plai ntiff’s claims are barred by the statute of limitations; 3) whether Tenn. Code Ann. § 9 -8-307(a)(1)(N) is unconstitutional. The State raises two additional issues: 1) whethe r Plaintiff’s claims are barred by absolute judicial immunity; and 2) whether

the State is liable for the actions of Attorney Spurr ell, Plaintiff’s court-appointed attorney

. Whether the Commission has subject matter jurisdiction over the claims contained in Plaintiff’s complaint

is a question of law. With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001). As our Supreme Court stated in Northland I ns. Co. v. S

tate :-3- A motion to dis m i ss for lack of subject matter jurisdiction falls under Tennessee Rule o f Civil Procedure 12.02(1). The concept of subject matter jurisdiction involves a court's lawful authority to adjudicate a c ontrove rsy broug ht before it. See Meighan v. U.S. Sprint Communications Co. , 924 S.W.2d 632, 6 3 9 (Tenn. 1996); Sta ndard Sur. & Casualty Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). Subject matter jurisdiction involves the nature of the caus e of action a nd the re lief soug ht, s ee Landers v. Jones , 872 S.W.2d 674, 675 (Tenn. 1994), and can

only be conferred

on a cour t by constituti onal or le gislativ e act. See Kane v. Kane , 547 S.W.2d 559, 5 60 (Tenn . 1977); Computer Shoppe, I

nc. v. Sta te , 780 S.W.2d 729, 734 (Tenn. Ct. App. 1989). Since a determination of whe the r subject matter ju risdictio n exists is a q

uestion of la w, our stan dard of review is de novo, without a

presumption of correctness. See Nelson v. Wal-Mart Stores, Inc ., 8 S.W.3d 625, 628 (Tenn. 1999).
* * *
Article I, section 17 of the Te

nnessee Constitution

providesthat "[s]uit s may be brought against the State in such manner and in such courts as the Leg islature may by law direct." This constitutional provision reflects sovereign immunity , the notion that a sovereign governmenta l entity ca

nnot be sued in its own c ourts with out its consent. See State v. Cook , 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937); Tenn. Code Ann. § 20-13-102 ("No court in the state shall have any power, jurisdiction, or authori t y to enter tain any suit aga inst the sta

te ... with a view to r

each the state, its tr ea su ry, funds, or property ..."). As a general

interpretive matter, this Court h as held that the princ iple of so vereign immunity require s that legislation a uthorizing

suits agains tthe state m ust provi de for the sta te's consent i n "p lain, clear, and unmistakable" terms. Cook , 171 Tenn. at 611, 106 S.W. 2d at 861; see also B eare Company v. Olsen , 711 S.W.2d 603, 605 (Tenn. 1986). We must ther efore c arefully anal yz e the statut

e gran ting jur isdiction t o the Tennessee Cla

ims Commission, which this Court has previously held cr eates a "sweeping proc edure for filing monetary claims agains t the state ." Hembree v. State , 925 S.W.2d 513, 516 (Tenn. 1996).
Northland Ins. Co. v . State , 33 S.W.3d 727, 729 (Tenn. 2000).

Th e statute

granting jurisdiction to the Commission, Tenn. Code Ann. § 9-8-307 provides , in pertin

ent part : (a)(1) The commi ssion or e ach comm issio ner sit

ting individually has exclusive jurisdiction to deter

mine all monetar y claims ag ainst the state based on the acts or omissions of “state employees,”as defined in § 8-42-101(3), falling within one (1) or more o f the foll owing c ategor ies:
* * *-4-

(N) Negligent deprivation of statutory rights created under

Tennessee law, except for actions arising out of claims over which the civil service commiss ion has jurisdiction. The claimant must prove under this subdivision that the general assembly expressly conferred a private right of action in favor of the c lai m ant against the state for the state’s violation of the particular statute’s provisions; . . . Tenn. Code Ann. § 9-8-307 (a)(1) (2003).

We, therefore, must look at the statutes Plaintiff bases his claims upon to determine if they expressly

confer a private right of a ction in favor of a claimant against the State. After a caref ul revie w of the st

atutes up on which Pl aintiff b ases his c laim, i.e., Tenn. Code Ann. §§ 40-3- 101; 40-14-101; 40-14-102; 40-17-105; and 40-18-118, we hold that none of these statutes e xpressly confers a private right of action. Plaintiff also alleges he was deprived of statutory rights pursuant to Tenne ssee Rule

of Crimina

l Procedu re 43. Th is claim is without mer

it because Tenn. R. Crim. P. 43 is a rule of criminal procedure, not a statute, and, in any event, it certainly doe s not confer a pr ivate right of action in favor of Plaintiff . We hold tha

t the Commiss ion prope

rly held it l acke d subject matter jurisdiction and that Plaintiff failed to state a claim upon which relief can be granted.
We next consider

whether the Commissi on erre d in holding Plaintiff ’s claims , if

an y, are barred by

the statute of limitations. Therefore, we look to Tenn. Code Ann. §§ 9-8-402(b) and 28-3-104 to determine the appropriate statute of limitations. Tenn. Cod e Ann. § 9- 8-402(b) deals withclaims filed with the Division of Claims Administration and pr ovides: “T he claim is barred unless the notice is given w ithin the ti me provid ed by statutes o f limitatio ns applic able by the cour ts for similar occurrences from which the claim arises. . . .” Tenn. Code Ann. § 9-8-402(b) (2003). In pertinent part, Tenn. Code Ann. § 28-3-104 provides: “The following actions shall be commenced within one (1) y ear af ter the c ause of a

ction ac crued: . . . (4) Actions for s tatuto ry penalties. . . .” Tenn. Code Ann. § 28-3-104(a) (2003).

Plaintiff was tried, convicted, and sentenced in 1993. He filed his claim against the Statein Novemb er of 200 2, well beyond the one- year

statute of limitations . Thus, Pla

intiff’s claim is barred by the

statute of limitations unless it is tolled for some reason.
Plaintiff claims tha

t the disco very

ruleshould apply to toll the statute of limitations because he did not learn

or discover he had suffered an injury until November of 2001. However, “the discover

y r ule only applies to

matt er s of fact that may

be unknown to a prospective plaintiff, and not to matters of law.” Spar Gas, Inc. v. McCune , 908 S.W.2d 4 00, 404 (T enn. Ct. App. 1995). Plaintiff had full k

nowledg e of the f

acts relevant to

his alleged injury

when it occurred because he knew he was tried and sentenced even though he was not present in court. Plaintiff argue s there is no evidenc e that he “kne w th at his trial in absentia was illegal and therefore injurious to [him].” However, there is abundant evidence that Plaintiff knew he was being trie d and sentenced. Plaintiff had knowledge of the relevant fac ts. The discovery r

ule cannot be u s ed to toll the statute of limitations because of Plaintiff’s claimed lack of knowledg e about the law. We hold the discovery ruledoes not apply and the Commission properly held Plaintiff’s claims are barred by the statute of limitations

.-5- We next consider

whether Tenn. Code Ann. § 9-8-307(a)(1)( N) is unconst

itutional. We note that

Plaintiff didnot raise this issue below. Our Supreme Court has unequivocally stated:
It has long been the gener

al rule that questions not raise d in the trial court will notbe enter

tained on appeal a

nd this rule app li es to an attempt to make a constitutional attack upon the validity of a statute f or the fir st timeon appea

l unless the statute i nvolved is so obviously unconstitutional on its face as to obviate the necessity for

any discussion.
Lawrence v. Stanfor

d , 655 S.W.2d 927, 929 (Tenn. 1983).
The statute in question, Tenn. Code A nn. § 9-8-307( a)(1)( N), is not “ so obviousl

y unconstitutional on its face as to obvia te the necessity f

or any discussion.” Id . It is not vague, ambigu ous, or overbroad. It doe s not create a classification or unequally affect any

one class of people mor e than an other. Th

erefor e, we will not ente

rtain thisissue ra

ised for the first ti me o n appeal.
Our

determin atio n of the foregoing issues preter mits the necessity of consider ing whether Pl ai nt if f’ s c la im s a re ba rr ed by a bs ol ut e j ud ic ia l i mm un it y. We, however, will address the final issue ra

ised by the St ate: whether

the State is liable f

or the actions of At

torney Spurrell , Plaintiff’s court-appointed at to rn ey. The issue of whether a court- appointed attorne y is considered a state employee

is specif ically address ed in Ten

n. Code An

n. § 8-42- 103. I

n gene ral, this statutory section gives the attorney

general discretion to provide legal representation to state employ ees who have been sue d becau se of ce rtain ac ts or omissi ons committ

ed within their scope of employ

ment. The statute provide s unequivo cally that cour

t-appoin ted attor ney s are to b e conside

red state em ploy ees, but onlyfor purposes of the attorney general having discre

tion to provide lega l representation when a court-appointed attorney is sued, assuming the other statutory require ments are met. In re

levant pa rt, the sta tute provides: (a) When a civil action for damages is commenced in a ny court by

any person against any

state employee a s defined in this chapter for any acts or omissions of t he state employ ee within the scope

of the em

ploy ee's e mploy ment, exce

pt f o r willful, m a licious, or criminal acts or omissions or for acts or omissions done for personal gain, the attorney general and reporter

has the discretion to provid e representation to the employ ee. . . (b) For the exclusive purpose of this section, "state employ ee" also includes attorn eys appointed by a c ourt, or other agency authorized by law to mak e suc h appointme

nts, to represent an indigent when a civil ac tio n for damages is commenced ag ainst such atto

rney for any act or om

ission in the

course o f repre sentin g suc h indigen t. Notwithstanding any provision of law to the contrary, such attorney shall-6-

not be considered a state employee for any other purpose including, but not limited to, §§ 9-8-112 and 9-8-307. Tenn. Code Ann. § 8-42-103 (2003) (emphasis added).

We believe the intent of the legislature is quite clear f rom th e statute itself. Tenn. Code Ann. § 8-42-103(b) clearly states that a court-appointed at torney is not cons idered a

“state employee”for purp oses of Te nn. Code A

nn. § 9-8- 307, the st

atutory provisi on whi ch waives the stat e’s soverei gn immunity in certain specific instance s and whic

h confer s subject

matter ju risd ictio n on the Commissi on to reso lve th ose clai ms . Accordingly , the Commission has no subject matter jurisdiction to hear a claim against the State for alleg ed legal malpractice arising out of the acts or omissions of a court-appointed attorney

. Notwithsta nding the foregoing, if a

legal malpractice action is brought against a court-appointed a ttorney, as opposed to the state, arising out of acts or omissions occurring during t

he court -appoint ed repr ese ntat ion, then t

he attor ney gener al has dis cretion

to provide that attorney with leg al representation. This Court reach ed th e v er y s ame conc lusion in Taylor v. State , No. 02A0 1-9508-B C-00229, 1 996 Tenn. App. L EXIS 389 (Ten

n. Ct. App. July 3, 1996), no appl . perm. ap peal filed . In Taylor , we affirmed the dismissal of a legal malpra ctice lawsuit filed with

the Commissi on aga

inst the Sta

te of Ten nessee a risi ng out of alleged acts or omissions of a cour

t-appoin ted attor ney . We concl

u ded the Commission lacked subject matter jurisdict ion over s uch a cla

im, reaso ning as f

ollows:
The crux of

Title 8, Cha

pter 42 of the Code isfound in

T.C.A. § 8-42-103, entitled "Defe nse Counsel fo

r State Em

ploy ees." T

his sectio n sta

te s that unde

r certa in definedcondition s, a state employee who is sued in a civil action for damages for any act or omission in the course of his employme nt will be provided defense counsel by the state. T.C.A. § 8-42-103 (b) state s in simple terms that a court-appointed attorney assigned to represent an indigent who is thereaf ter suedby the indige

nt for damages arising as a result of

this representation is a "sta te employ ee," a nd may avail hims elf of defense counsel provided by the

state. As noted, T.C.A. § 8-42-10 3(b) spe cifically provide s that such attorney will not be considered a state employ ee for any othe r purpose, including, but not limited to, T.C.A. § 9-8-307, which delineates the jurisdiction of the Tennessee Claims Commission. Taylor , 1996 Tenn. App. LEXI S 389, at **3- 4.

In the present case, we agr ee with the State that

the Commission has no subject matter jurisdiction over the

allega tions contained within Plaintiff’s complaint b ecause , among other re asons, Plaintiff’s court-appointed attorn ey was not a

state employee, a

nd for this reason that claim was subject to dismissal. Even though the Commission never de cided thi s specific issue, it ne

verthel ess reached the corr ect result when it dismissed the entire complaint for lack of subject matter jurisdiction based upon other reasons, and for expiration of the statu te of limita tions . Weaffirm the Commission’s judgment dismissing the complaint.-7- Conclusion
The judgmen

t of the Cla

ims Commissio n is affirme d, and thiscause isremande d to the Claims Commission for such further proceedings as may be required, if any , consistent with this Opinion and for co llection o f the costs below. The costs on appeal are assesse d against the Appellant, Lloy

d E. Williams.

___________________________________ D. MICHAEL

SWINEY, JUDGE