# FILED

Novemb er 18, 1997
Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

CHARLES G . FOSSETT, ) ) Claimant/A

ppellant , ) Tennessee Claims C ommission No. 305-927 ) v. ) ) Appeal No. 02A01-9703-BC-00061 STATE OF TEN

NESSEE ) ) Defendant/Appellee, ) )
APPEAL FROM THE TENNESSEE CL AIMS COMMISSI

ON

THE HONO RABL

E MARTHA B . BRASFI ELD, COMMI SSION

ER OF CL

AIMS
For the Claimant/Appellant : For the Defendant/Appellee : Nancy E. Ry

an Mary M. Bers Memphis, Tennessee Nashville, Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCURS: W. FRANK CR

AWFORD, P. J., W.S.
AL AN E . HI GHE RS, J
.OPINION

This is a s ui t f or re im bu rs em en t o f c hi ld su pp or t p aym ents. The Tenn essee Cla ims Commissi on dismissed the plaintiff’s lawsuit against the State of Tennessee, based on la ck o f jurisdict ion. We af

firm. In 1985, the Juvenile Court of Shelby County issued pater nity orders holding tha t Plaintiff/Appellant

Charles G. Foss ett (“Fossett”) was the father of two minor c hildren by two different mothers. At the time, both mothers were receiving Aid to Fa m ilies With De pendent Children (“AFDC”) from the Tennessee Depar tment of Hu man Services (“TDHS”). Fossett was ordered to pay child support to the Juvenile Court. Most of these payments were f orwarded to TDHS to repay A

FDC pay ments made

to the mothe

rs pursua nt to Tennessee Code Annotated § 71-3-124. (Supp. 1996) In 1993, blood tests indicated that Fossett was not the father of the ch il dr en . C on se qu en tl y, in 1994, the Juvenile Court issued an order setting aside its previous paternity orders and releasing Fossett from his child support obligations. Fossett then filed a complaint withthe Tennessee Cla

ims Commission against the State of Tennessee (“State” ), seeking reimbursement of the past chi l d support pa

yme nts. In response, the State filed with the Claims Commission a motion to dismiss under Rule 12 of the Tennessee Rules of

Civil Procedure, asserting that the Claims Commission lacked jurisdiction
over the plaintiff’s claim. On January 13, 1997, the Claims Commission issued an order granting the State’s mo tion to dismi ss. The Commiss ion concl uded that it lacked subject matter jurisdiction since there wa s no speci fic statu tory exception

to sovere ign immun

ity f or the cl aims asse

rted in thi s lawsuit. F

ossett now

appealsthe dismiss al. On appeal, Fossett

con tends that the Commission erred in ruling that it did not have jurisdiction. Fossett

further asserts that, in the event that the Commission did not have jurisdiction, the case should hav e been tr

ansfer red to Cha

ncery Court. In consider

ing a Rul e 12 motion to dismiss, “ courts sh ould const rue the c omplaint li

berally in fa vor of the plai ntiff, taking all allegations of fact ther ein as true.” Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). Such a moti on will be d enied “u nless it appears that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief.” Id. Fossett

first alleges tha

t the ClaimsCommission h ad jurisd iction to he ar the c ase. Citi n g2

Tennessee Code Annotated §§ 71-3-124 and 9-8-307 (Supp. 1997), Fossett maintains that it was improper for the Commission to dismiss his action. Section 71-3-124 sets fort h the assi gnment t

o the State of the mot her’s right to receiv e support . It c ontains no provision

granting the Cl aims Commission jurisdiction over claims for reimbursement for support payme

nts. Section 9-8-307 s ets forth the categories of claims over w hich the Claims Commission has jurisdiction. Under the Tenn essee Co nstitution, claims “may be broug ht against the Sta

te in such manner and in such courts as the Leg islature may by

law direct.” Tenn. Const. art. I, § 17. The legislature, in turn, e nacted Tennesse e Code An notated § 20-13-10 2(a), which state s: (a) No court in the state sha ll have a ny p ower, ju

risdictio n, or authority

to enter tain any suit against the state, or against any officer of the state acting by authority

of the state, with a view to reach the st at e, it s t re as ur y, f

un ds , o r p ro pe rt y, and all su ch suits shallbe dismissed as to the state or suchofficers, on motion, plea, or demurrer of the law officer of the state, or counsel employ ed for the state. Tenn. Code Ann. § 20-13-102(a) (1994). Neverth eless, the legislature has authorized some ty pes of suits for monetary damages agains t the State. See Tenn. Code Ann. § 9-8-301 et. seq . (Supp. 199 7). Foss ett conte nds tha t authorizat ion for his suit is set fo rth in Sec tion 9-8- 307(a)( 1)(F). This provi sion state s that t h e Claims Commission has jurisdiction for monetary claims ag ainst the State based on the “[n]egligent care, custody

or contr ol o f perso nal property.” Id. Fossett argues that since his child support pay ments were a ssigned

to TDHS und

er Tennessee Co de Annota ted § 71-3 -124, the

State is subrog ated to the intere sts of the r ecipien ts. Fossett then reasons that there was a negligent taking of hi s p er so na l p ro pe rt y, a s a re su lt of th e r ec ip ie nt s’ un tr ut hf

ul ne ss re ga rd in g h is al le ge d p at er ni ty. Tennessee courts have strictly c onstrued statutes authorizing the State to be sued. In Beare Co. v. Olse

n, 711 S.W.2d 603, 605 (Tenn. 1986), the Supreme Court held: In construing Art. I , § 17 this Court has h eld that st atutes wh ich perm it suits ag ainst the state under

the authority of this provision are in de rogation of thestate’s inherent exemption from suit and must be strictly construed. In addit ion, the jurisdiction granted under such statutes cannot be e nlarged by

implication. (citations omitted). Therefore, the statutory exceptions to sover eign imm unity cited by

Fossett must be strictly construed. In reviewing Sect

ion 9-8-3 07(a)( 1)(F), it is clea r that the State’s c onduct did

not constitute the “care,” “custody ,” or “control” of “per sonal p roperty .” Ther efore, the Commissi on correctly concluded that it lacked jurisdiction over the plaintiff’s claim. Fossett also alleges that the Commi ssion err ed by not trans ferring

the case to Chance

ry Court.1 Fossett’s brief cites Tenn essee Co de Annota ted § 9-8- 307 in supp ort of this proposition. The actual provision governing transfe rs is found in Section 9-8-404 . 3 Fossett asserts that the Commissioner retained this optio n pursuan

t to statute

1 and erred by

not exercising this option. Howeve r, the record doe s not indic ate that F ossett reques ted a transfer. Therefore, this issue will not be considered on appeal. The Commission’ s order i s affirm ed. Costs o n appea

l are taxe d again st

the Appellant, for which execution may issue if nec essary.

HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRAN K CRAWF ORD, P. J., W.S.
ALAN E. HIGHERS, J.