# FILED
March 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk RANDALL M

YERS, ) ) Plaintiff/Appellee, ) ) Rutherfor

d County Cir

cuit ) No. 36179 VS. ) ) Appeal No. ) 01-A-01-9609-CV-00397 HURST CONSTRUCTION CO., INC., ) ) Defendant/Appellant. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM TH

E CIRCUIT C OURT OF R UTHERFOR

D COUNTY AT MURF REESBORO, TEN NESSEE HONORABL E DON R. ASH , JUDGE
SHELLE Y I. STI LES 5214 Maryland Way , Suite 3192 Brentwood, TN 37027 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE
STEVEN D. PARMAN 214 Second Avenue , North Suite 300 Nashville, TN 37201 FOR DEFENDANT/APPELL ANT
REVERSED A ND REMAN DED
HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

RANDALL M

YERS, ) ) Plaintiff/Appellee, ) ) Rutherfor

d County Cir

cuit ) No. 36179 VS. ) ) Appeal No. ) 01-A-01-9609-CV-00397 HURST CONSTRUCTION CO., INC., ) ) Defendant/Appellant. )



### O P I N I O N The Trial Court and this Court have granted permission to the Hurst Construction Co., Inc., to appea

l from an interloc utory

order of the Tria l Co urt over ruling t

he motion o f Hurst Construct ion Co., I nc., for summary judgmen t on grou nds of the statute of limitations
.

On November 8, 1992, plaintiff, Ran da ll Mye rs was inj ured in a n accide nt on a sta

te highway
.

On November 8, 1993, plaintiff filed a claim wi th the Tennessee Claims Commission allegi ng neg ligent c onstruct ion or main

tenance of the hig

hway causing his injurie s.

On May 11, 19 94, t he St ate res ponde d, st ating t hat an y neglige nce in con structing the highway was that of Hurst Construction Co., Inc.

On August 9, 1994, plaintiff filed an amended claim with the Claims Commission seeking recovery

from Hurst Construction Co., Inc., for his injuries.

On October 28, 1994, Hurst Con struction Co., Inc., filed a motion to dismiss the amended claim for lack of jurisdiction.-3- On February

27, 1995, the Claims Commission sustained the motion and dismissed plaintiff’s amended claim against Hurst Construction Co., I nc.

On February

8, 1996, p laintiff filed the present action in Circuit Cou

rt aga inst Hurst Construction Co., In c., upon the same right of action asserted a gainst Hurst Construction Co., Inc ., in the a

mended c laim befo

re the B oard of C laims.
On June 7, 1996, the Trial Court overruled the motion of Hurst Construction Co., Inc., for summa

ry judgmen t.

On August 30, 1996, the Trial Court granted the application of Hurst Construction Co., In c. for perm ission to ap peal fr om the June 7 , 1996 ord er over ruling t he motion o f Hurst Construct ion Co., I nc., for summary judgmen t.

This Court a

lso gra nted per mission for

the inter locutory appeal.
On appea l, Hurst Co nstructio n presen ts the foll owing is sues: 1. Whether T.C.A. § 20-1-119 can be applied to extend the statute of limitations when the plaintiff improperly attempts to sue a priva te defendant in the Claims Commission. 2. Whether a

plaintiff who attem

pts to file a claim against a private defendant in the Claims Commission has commenced an action so as to be protected by the savings statute, T.C.A. § 28-1-105.
T.C.A. § 20 -1-119 pr

ovides in p ertinen

t part as f ollows: Comparat

ive faul t - Joinder o f third pa

rty defenda nts. (a) In civil actions wher e comparative fault is or becomesan issue, if a def endant na med in an o

rigina l complaint initiating a suit filed within the applicable statute of limitations , or name d in an amended complaint filed within the applicable statute of limitations, allege s in an ans wer or a

mended a nswer to t he orig inal or amended complaint that a person not a party to the-4- suit caused or contributed to the injury or damage for which the plaintiff seeks recovery , and if th

e plaintif f’s cause or causes of action ag ainst such person would be barr ed by any applica ble statut e of limita

tions but for the operation of this section, the plaintiff may , within ninety (90) day s of the filing of the first answer or first amended answer alleging such person’s fault, either: (1) Amend the complaint to add such person as a defenda nt pursua nt to Rule 15 of the Te

nnessee Rules of Civil Procedure and cause process to be issued for that person; or (2) Institute a separa

te action against that person by filing a summons and c omplaint. If the plaintiff elects to proceed under this section by filing a separate action, the complaint so filed shall not be considered an “original complaint initiating the suit”or “an amended complaint” for purposes of this subsection. (b) A cause of action brought within ninety (90) days pursuant to subsection (a ) shall not be barred by any statute of limitations. This section shall not extend any

applica ble statut e of rep ose, nor s hall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose. (c) This section shall neither shorten nor lengthen the applicable statute of limitations for any cause of action, other than as provided in subsection (a).

Where a court having jurisdiction of the subject matter of the controve rsy dismisses a

suit withoutadjudicating the merits, a new suit for the same relief may be instituted within one y ear after the dismissal. T.C.A. § 28-1-105, Turner v. Aldor Co. of Nashv ille , Tenn. App. 1991, 827 S.W.2d 318 and authorities cited therein.

However, in the present case, plaintiff did not present his c laim ag ainst Hur st Construction Co., I

nc., to a t ribunal h aving su

bject mat ter juris diction of

suits ag ainst

pr ivate individuals and corporations, but to a commission created for the sole purpose of adjudica ting claims agains t the sove

reign s ta te of Tenness ee. I n refer ence to t he Tenne ssee Claims Commission, T.C.A. § 9- 8-307 sta tes:-5- (a)(1) The com miss ion o r each co mmis sion er sit ting individua lly h as exclusiv e jurisdiction to dete rmine all monetar y c laims agains t the state

falling within one (1) or more o f the foll owing c ategor ies:(J) Dangerous conditions on state maintained highways. The c laimant under this subsection must establish the foreseeability of the risk and notice given to the proper state officials at a time sufficiently prior to the injury for the state

to have taken appropriate measures. (Emphasis supplied)
Plaintiff ’s brief states: Rule 1 of the Tennessee Rules of Civil Procedure states in part that the rules applyto Circuit and Chance ry C ou rt s a nd “i n o th er co ur ts .” Th e a dv is or y comments s ugge st that the Rules app ly to

other courts of record established by special or private acts of the General Assembly . The Tennessee Claims Commission was created pursuant to T.C.A. Section 9-8-301. The Claims Commis sion has a dopted the

Rules of Civ

il Procedure and the Rules of Evidence althoug h the Claims Commission does not formally refer to the Rules of Civil Procedure.

T.R.C.P Rule

1. states : RULE 1. SCOP

E OF RULES Subject to such exceptions as are stated in them, these rules shall govern the procedure in the circuit and chancery courts of Tennessee and in other courts while ex er ci si ng th e j ur is di ct io n o f t he ci rc ui t o r c ha nc er y courts , in all civil actions, whether at law or in equity , including civil actions appealed or otherwise transfe rred to those courts. These rules shall not be applicable to courts of general sessions except in cases whe re such courts by specia

l or private act exercise jurisdiction similar to t

hat of ci rcuit or c hancer y c ourts. The se rules shall be construed to secure the just, speedy and inexpensiv e deter

mination of

every action. ( Emphasis supplied)
The Committ

ee Commen

t under th is rule sta tes: This rule makes it clear that these Rules establish identical procedures for circuit and cha ncery c ourts and for those other courts of record which have been establish ed by special or priva te acts o f the Gen

eral Assembly and which ha

ve jurisdiction similar to that of the circuit or chancery

court, or of both.-6- The Tennessee Claims Commission is not a circu it or chanc ery cour t nor is it a court exercising the jur is diction of the circuit or chancery courts or similar jurisdiction. It is an administrative agency

created to adjudicate which claims should be paid by the State of Tenness ee despi

te its sove reign immunity . Howeve r, T.C.A. § 9-8-402 (b) provides: (b) The claim is barred unless the notice is given within the time provided by statutes of limitations applicable by the courts for similar occurrences from which the claim arises. The filing of the notice by the claimant tolls all statutes of limitation as to other persons potentially liable to the claimant due to the occurrence from which the c laim before the commission

arises.

The quoted statute does provide an extension of the statute of l imitations f

or a cla im against a third party

wrongdoer

disclosed in the answer of the State to a claim filed aga inst the Statebefore the Claims Commission. However, this statute does not specify the duration of

the extension or the tri

bunal bef ore which the claim against the third party should be prosecuted. This statute

doe s not enla

rge the jurisdict ion of the

Claims Commis sion to aut horize it to adjudica te any claims ag ainst the p

rivate corporations or individuals, and thus leaves such cla ims to the cour

ts. As t o the limit of extension, the answer is to be found in T.C.A. § 20-1-119(a) which pr ovides: (a) In civil actions where compa rative fault is or becomes an issu e, if a d efenda nt nam ed in a n origi nal co mplai nt in itia ting a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answe r to the original or amended complaint that a person not a par ty to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery , and if the plaintiff’s cause or causes of action a gainst s uch pers on would be barred by a ny a pplicabl e statute of limitations but for the operation of this section, the plaintiff may , within ninety

(90) day s of the f

iling of the first answer or first amended answer a lleging such person’s fault, either: (1) Amend the complaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that person; or (2) Institute a separate a ction against that person by filing a summons and complaint . If the plaintiff elects to proc eed under this section by filing a se parate action, the complaint so filed shall not be considered an “original complaint initiating the suit”-7- or “an amended complaint” for purposes of this subsection. (Emphasis added) (b) A cause

of actio n brought within ninety (90) day s pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an a ction is barred by a

n applicable statute of repose.

In the present case, there was no “complaint” to be amended under subsection (a)(2). Hence, p laintiff

’s only recour se was to f

ile a sep arate a

ction (in a

court of law) ag ainst

Hurs t within 90 da

ys a fter the response of the Sta

te disclos ed the inv olvement of Hurst.

Plaintiff’s allegation of adoption of the Civil Rul es by the Claims C ommission is unsupported by c itation. H owever , even if this has oc curred , the Claim s Commiss ion ha s no authority to add to itsstatutory

powers b y a

dopting r ules.

The Cl aims Commission had no authori ty to accept for filin g plaint

iff’s am endator y c laim agains tHurst Construction Co., Inc., w hich should have been refused or stricken as improvidently filed.

Plaintiff asserts that the statute of limitations is suspended by the commencement of a suit in a co urt wi thou t juri sdict ion, citi ng Williams v. Cravens , 31 Tenn. App. 246, 214 S.W.2d 57 (1948). Examination

of the cited autho

rity discloses that the facts uponwhich it was decided are not in keeping with the facts of the present case
.

Burns v. P

eoples Te l. & Tel. Co ., 161 Tenn. 382, 335 S.W.2d 76 (1930), involved a damage suit brought in Chancery Court and dismissed for lack of subject matter jurisdiction. The Supreme Court reversed, reviewed a number of authorities, and said: In Sweet v. Electric L

ight Co., 97 Tenn., 252, a suit was brought in the United States District Court, which was dismissed by that court for lac k of jurisdiction. Within a year a nother suit on the same cause of action was broug ht-8-in the state court and the statute of limitations was interposed by the def

endant and held to bar the suit. This court said: “We think the demurrer was properly sustained and the suit properly dismissed. An action commenc ed in a Court having no jurisdiction to entertain it is no action in the sense of the statute. The matter stands the same as if no suit had been brought, or attempted to be brought, a nd the limitation r

uns from th

e date of the injury . If t

he actio n is brought in a Court without jurisdiction, the whole proceeding is void and of no effect, and if it should proceed to judgment, the judgment likewise would be void an d w it ho ut va li di ty.

- - - - In Davis v. Parks , 151 Tenn., 321, an action was brought agains t the dire ctor ge

neral of railroa ds in the wr

ong cou nty and was dismissed for lack of jurisdiction. Thereafter, within one year a

fter the dismissal of the first suit, another suit on the same cause of action was brought in a prope r Court and the statute of limitations relied on.This court held that the new suit was not defeated bythe statute of limitations and refused to follow Sweet v. Electric Light Co. when the jurisd iction of t he first c ourt in whi ch the suit was brou ght failed me rely because of the ve

nue. Amon g other

things, it was said: “The case of Sweet v. Electric Co ., 97 Tenn., 252, 36 S.W. 1090, does not show the facts with regard to the first suit. Th e p la in ti ff

ma y ha ve be en gr os sl y ne gl ig en t i n o ri gi na ll y ch oo si ng th e for um , f or al l t ha t a pp ea rs , a nd th e c as e m ay have be en corr

ectly decided on its own f

acts. B ut we do no t consider that case authority for the proposition that however prudentl y a plaintiff may have ac ted in cho osing hisorigina l forum, and however technical may have been the grounds for di sm is sa l, a d is mi ss al fo r w an t o f j ur is di ct io n, un de r a ny circum stanc es what soeve r, prec ludes plain tiff f rom re lying upon the saving statute. Such a proposition is too far reaching to receive the a

pproval of this court.”

- - - - As pointed out in Davis v. Parks, supra, and in Smith v. McNeal , 109 U. S., 426, 27 L. Ed. 986, there may be cases i n whic h a pla inti ff was gr ossl y negligent in cho osin g the forum of his first suit and in which the rule announced in Sweet v. Electric

Light Co ., supra , should be applied. Moran v. W

einberge r, supra , proceeded to some extent on this idea. Under other circumstances, however , Sweet v. Electric Light Co ., will not be followed and may be considered as overruled, except as indicated . (Emphas is supplied)-9- No author

ity i s cited or

found whe

rein the saving s tatute wa s applied to an atte mpt to enforce a claim aga

inst a private corporation or individual before an administrative ag ency create d to adjudi cate onl

y c laims ag ainst a so vereign gover nment.
Since there is no statutory provision for filing plaintiff’s claim against Hurst before the Claims C ommission, a nd there is express s tatutory

provision

for filin g plaint

iff’s suit against Hurst in a court of law, it must be concluded that this case c omes within the exception to the liberal rule adopted in Burns v. P eoples Te l. & Tel. Co., su pra .
The circuit court case which is the subject of this appea l was not filed until February 8, 1996, four yea

rs and three months after the occurre nce of plaintiff’s injury

which was subject to a one ye ar statute of limitation. T.C.A. § 28-3-104.

Plaintiff’s only response to the def ense of statute of limitationsis that thissuit was filed within one yea r after dismissal of his action commenced within the statute of limitation by filing a claim w ith an adm

inistrativ e age

ncy having no power to rece ive or co nsider the claim.

1. Plaintiff

’s actionwas not dis missed by a judgme nt or dec ree, but 2. Plaintiff’s claim

was effec tively stricken bec ause the Commission had no authority to enter tain it. 3. The action of

the commission did not preserve the right of plaintiff to prosec ute the pres ent suit af

ter the e xpiration of

the statut e of limita

tions.
§ 9-8-402(b) that

tolls the running of the

statute of limitationsas to all ot

her pote ntially liable persons o nce a cl aim is file d. Tenn. R . App. P. 36 (a) per mits us to co nsider th

is stat ute
even though M

r. Myers did no t rely

on this section in his brief. This statute must be construed together with Tenn. Code A nn. § 20-1-119. Accordingly , persons who file a claim with the cl aims commission must file a separate action under Tenn. Code Ann. § 20-1-119(b) withi n-10-

ninety day s a fter the

State identifies a private party as being totally or

partially liable for the claimant’s injuries. Mr. Myers did not comply with Tenn. Code Ann. § 20-1-119 because the amendment to his claim seeking damages fr om a private party

was clearly

improper.
The judgment of the Trial Court overruling the motion for summary judgme

nt in favor of Hurst Cons truction C o., I nc., is reversed, said motionis sustained, and pla intiff’s suit aga

inst Hurst Construction Co., Inc., is dismissed. All costs of said suit, including costs of this appe al,
are assesse d again st the plaintiff. Th is cause is remanded to the Trial Court for entry of an order
consona nt with this o

pinion and

for any other fu rther pr oper pro ceeding s.

REVERSED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________ SAMUEL L . LEWIS, JUDGE

_____________________________ WILL IAM C. KOCH, JR., JUDGE