# FILED
January 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON
SCHERING-PLOUGH HEALTHCARE ) PRODUCTS, INC., ) ) Petitioner/Appellant, ) Shelby Chancery No. 106076-2 R.D. ) VS. ) Appeal No . 02A01-9703-CH- 00058 ) STATE BOARD OF EQUA LIZATION, )

) Respondent/Appellee. )
APPEAL FROM

THE CHANCE RY COURT O F SHELBY COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE FLOYD PEETE,JR., CHANCELLOR

FRED M. RIDOLPHI, JR. HUMPHREYS DUNLAP WELLFORD AC UFF & STANTON, P.C. Memphis, Tennessee Attorney for Appellant

JOHN KNOX WALKUP Attorney

General and Reporter GARY N. MEADE, JR. Assistant A

ttorney General Nashville, Tennessee Attorney for Appellee

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. This action was filed

by Plaintiff/Appellant, Schering-Plough Healthcare Products,1 At oral argument i n the matter, the Board conceded t hat a summons was not required to be served

along with a copy of th e petition for r eview, an d, as a res ult, that issue is not befo re this cou rt. 2 Inc., (“Schering-Plough”), in the Chancery Court of Shelby County to

obtain judicial revi ew of a decision by

Defendant, Tennessee State Board of Equalizati on (“Board”), upholding
a personal property t ax assessment by the Shel by County tax asse ssor’s office. The chancellor

granted the Board’s motion to dismiss on the ground that the trial court did not have subject matter

jurisdiction due

to Schering-Plough’ s failure to name Shelby County
as a defendant and to serve upon the County a summons and a copy of the petition. The sole issue presented for review by this court is whether the chancellor erred in dismissing Schering-Plough’s suit for judicial review for lack of subject matter jurisdiction because of Schering-Plough’s failure t o name Shelby County as a de fendant and to serve Shelby C ountywith a copy of the petition under T.C.A. § 4-5-322(b). 1 For reasons stated hereinafter, we rever

se the judgment of the trial cou rt and remand.

Facts and Procedural His tory This petition involves the tax assessment

of Construction in Progr ess (“CIP”) owed bySchering-Plough. Schering-Plough is the owner of certain tangible proper ty located at 3022 Jackson Avenue in Memphis , Tennessee, identified as Parcel No. P-0086- 11. In 1992, the Board concluded that CIP w as taxable under the gener al assessment

statutes. Taxassessor s for She lby County we re notif ied by the Boa rd to value CIP at 100% of it s cost in place. In reporting for 1993, Schering-Ploug h acted in compliance with these state reporting regulatio ns.
Thereafter, the Legislature enacted T.C.A. § 67-5-903(g)(1) which provides: Tangible personal prope rty whi ch the taxpayer treatsas construction-inprocess (her ei nafter “CIP”) for federal income tax purposes as of the assessment date may be reported in the taxpay er’s schedule filed with the assessor at fifteen percent (15%) of its cost asreported for federal inco me tax purposes. T.C.A. § 67-5-903(g)(2) pr ovidesthat no back assessments rela tive toCIP may be made prior to January 1, 1994, and that al l tax collected from such assessments m ust be refunded. Particularly, T.C.A. § 67-5-903(g)(2) provides:

No back assessments of CIP, as the term is used in3 Subdivision (g)(1), shall occur prior to January 1, 1994. If back assessmentshave occurred involvin g CIP , those assessments shall be voided and all taxes paid shall be refun ded to those taxpayers who have a n action or c laim pend ing before an assessing authority

or court on the CIP issue.
Schering-Plough states tha t the term “back assessment s” appears to exclude as sets in the ordinary course of assessing CIP propert

ymade from reports filed by taxpayers such
as Sche ring-P lough. Schering-Plough further states that the statute appears to pe rmit backassessments to be made for any tax year after May 17, 1993. Sc hering-P lough contends that this statute must be construed to reduce the valuation ba sis of CIP to 15% of cost on both types of assessments made for or during the 1993 tax year.

The assessment at 100% of cost in plac e was appealed by Sc hering-Plough thr ough the app eals process established by the Board. The assessments w ere upheld by the Board on a decision entered on Ma y 25, 1995. Thereafter, on July 21, 1995, ScheringPlough sou ght judi cial review in the Chancery Court of Shelby County, Tennessee pursuantto T.C.A. §§ 67-5-1511(a) and (b) an d 4-5-322 by filing a p etition f or review. T.C.A. § 67-5-1511(a) and (b) provide: Finality of board action-- (a) The action of the state board of equalization shall be final and conclusiv e as to all matters passed upon by the board, subject tojudicial review , and taxes shall be collected upon the assessments determined and fixed by the board. (b) The judicial review

provided in subsection (a) shall consist of a new hearing in the c hancery court based u pon the admini stra tive record and any additional or supplemental evidence which either

party wishes to addu ce relevant to any issu e. The petition for review may be filed in the chan cer y court of Davidson County or the county where the di sputed assessment was made.
On September 25, 1995, the Board filed its motion to dism iss alleging that Sch eringPlough was required by T.C.A. § 4-5-322(b ) to na me and serve process upon Shel by County. T.C.A. § 4-5-322(b) provides:

(1) Proceedings for revi ew are instituted by filing a petition for review in the chancery court o f Davi dson County, unless another court is sp ecified by statute. Such petition shall by filed within sixty

(60) days after the entry of the agency’s final order thereon.4 (2) In a case in which a petition for judicial review is submit ted within the sixty-day per io d but is filed with an inappropriate court, the case sha ll be transferred to the appropr iate court. The time for

filing a petition for rev

iew in a court as prov

ided in thi s chapter shall not be exten ded because of the pe riod o f time allotted for filing with the agency a petit ion f or reconsideration. Cop ies of the petition shall be serv ed upon the a gency and all parties of record, including the attorn e y general and reporter, in accordanc e with the provisions of the Tennessee Rules of Civil Proc edure pe rtaini ng to service of process. Subseque ntly, on September 27and 29 of that s ame year, Schering Plou gh filed motions to amend its petition for revi ew to add Shelby County, the Shelby Cou nty tax assessor and the Shelby County Trustee t o “cure” an alleged defect i n the filing of thepetition for review. Thereafter, Shelby Cou nty, its tax assessor and its t rustee were all ser ved with copies of the petition pursuant to T.C.A. § 4-5-322(b)(2).

On October 29, 1996, the Chancell or dismissed the petition by order on the grounds that Schering-Plough failed to name Shelby County as a defendant in t he action , and to
serve Shelby County wi th a summon s and a cop y of the petition for revi ew thereby rendering the court without subjec t matter jurisdiction ov er the mat ter. This appeal followed.

Discussion Ordinari ly, when we review a finding of fact by the trial court, we must conduct our rev iew de novo

upon the record accompanied by a presumption of correctness, a nd w e mayreverse only if the e vidence preponde ra tes against the findings of the trial court. T.R.A.P. 13(d). This sam e presumption, however, d oes not exist with r egard to the trial court’s legal determinations. Prost v. City of Clarksville , 668 S .W.2d 425, 427 (Tenn. 1985). In this case, the trial court dismissed Schering -Plough’s petition for review because of Schering-Plough’s failure to name Shelby County as a par ty in said petition and t

o serve Shelby County with a copy

of said petition. No presumption of correctness attaches tothe tr ial court’s de cision to dismiss S chering-P lough’s pe tition f or review b ecause such decisio n is a legal determination, and as such does not warr ant a presumption of correctness bythis court. Thus, on appeal, this court must review the findings of the trial court de novo without5

the accompanying presumption of correctness.
Unquesti onably, the issue in th is case re quires this court to i nterpret the plain, ordinarylanguage of T.C.A. § 4-5-322(b). We m ust rely on the well es tablished rules of constru ction to determine this issue. As a general rule, the purpos e of statutor

y construction is to ascertain and give effect to the intention and purpose of the leg islature. Carson Creek Vacation Resorts, Inc. v. Department of R evenue , 865 S.W.2d 1, 2 (Tenn. 1993). Legislative intent is to be discerned primarily from the natura l and ordinary meaning of the language used, without forced or subtle construction that w ould limit or extend

the meani ng of the lang uage. Where the lang uage contained w ithin t he fours corner

s of a statute is plain, clear, and unambiguous and the enactment is within legisl a tive compete ncy, the duty of the court is to obey it. In Austin v. Memphis Publ ishing Co. , 655 S.W.2d 146 (Tenn. 1983), our Supreme Court observ ed: In a recent American work on StatutoryLaw, it is said that the intention of the legislat ure is to be learned from the words it has used; . . . and if that inten tio n is expressed in a manner devoid of contradiction and ambiguity, t here is no room for interpretation or

construc tion, an d the jud ges are no t at libert y, on conside ration of policy or hardship, t o depart from the wordsof the statute; that they have no right to make exceptionsor

insert qualifications,however abstract justice or the justice of the particular case may seem to requir e it. Id. at 148 .(citing Heiskell v. Lowe , 153 S.W. 284, 290 (Tenn. 1912)).

In the instant case , the tria l court dismissed Scheri ng-Plough’s petition for review stating that “Schering-Pl ough was required by T.C.A. § 4-5-322(b) to

name Shelby County
as a defendant in this action, and to ser ve Shelby

County with a summons and a copy of the Petition for Review , . . .” Thetrial court went on to state th at the failure of ScheringPlough to name Shelby County as a defendant and to serve upon the County a summons and a copy of the petition rendered it wit hout su bject matter jurisdicti on over the action. At oral argument in this matter, it was conceded to by the Board that Schering-Plough was not required to serve a summons upon Shelby County. The only remaining ques

tion was whether, under T.C.A. § 4-5-322(b), Schering- Plough was required to name Shelby County in its petition for review a nd serve it with said pe tition with in 60 days from the entry of the2 W e note that the JACO court stat ed that t he ulti mate de cision i n HRA , Inc. v. Tenn. Dept. of Commerce and Ins. , 914 S.W.2d 512 (Tenn. Ct. App. 1995), was correct. In HRA, Inc. , the Depart ment of Comm erce and Insurance uphel d an “experien ce modification factor” determined by the National Council on Compensation Insuran ce (“NC CI”). Id. at 513-514. HRA, Inc. fi led a petition for review but

faile d to name NCCI as a def endan t in the m atter. Id. The HRA, Inc. court held that HRA, Inc., i n fail ing to name NCCI as a defen dant in its pe tition for review , had failed to preserv e its right of rev iew again st NCC I. Id. The JACO cou rt’s statem ent con cerning their appro val of the ultim ate decision i n HRA, Inc. , however, i s dictum and, as such, is n ot binding o n this cou rt. 6 Board’s final order thereon.

After a careful examination of T.C.A. § 4-5-322( b), we find two requirements placed upon a petitioner seeking j udicial review of an administrative decis ion of an agency of this state. The first is jurisdi ctiona l: a petition for revie w must be filed within 60 days of the entryof the Board’s decision as set forth in (b)(1); the secon d requirement is not jurisdictional: copies of the pe tition for review must be served upon the Board and all parties of record, including the at torney general and repor ter. The Board contends that the trial court proper ly d ismissed Schering-Pl ough’s petition for rev iew because the petition fails to name a party of record, Shelby County. This ar gument is based on the provi sions of T.C.A. § 4-5-322(b)(2), which required Schering-Plough to serve a copy of the peti tion
on “all parties of record.” T.C.A. § 4-5-322(b)(2) (1997 Supp.). The Board inter pret s T.C.A. § 4-5-322(b)(2) as req uiring Schering-P lough to name Shelby County in its petition forreview and to serv

e Shelby County wi

th a copy of the pe tition within t he 60 day ti me limitation of (b)(1). The tr ial court agreed. We do not.

First, nowhere in the ordinary language of T.C.A. § 4-5-322(b) is it required that all parties of record be named in the petition for review. Along these lines, our Supreme Court in JACO v. Department of Health, Bureau of Medicaid , 950 S.W.2d 350, 352 (Tenn. 1997), stated that a petition for review is a continuing proceedi ng whereby the parties have been determined and are of “of record.” 2 Therefore, p arties to the ad ministrative proc eedings remain parties to the judicial review of those proceedings if the requi rements of T.C.A. § 4-5-322(b) are met. The only requir ement concerning “all par ties of record” is found in the clear, unambiguous la nguage of 4-5-322(b)(2) whic h simply mandates

that copies of the petition for review be serv ed upon the agency rendering the decision and the parties or record , including the attorney general and reporter. There is no requirement that “a l l3 After examining the r

ecord before us, it i s unclear whether or

not Shelby

County was a part

y to t he administ rati ve proceed ings bel ow. 7 parties of record” be named as respondents in the petition. That all par ties are not named is not fatal to the petition. 3
Analogou sly, we note that a petition for r eview is nothing

short of a continuation of the administ rative proceedings similar to a notice of appeal fil ed with this court. T.R .A.P. 3(f) provides: Contentof the Notice of Appeal. -- The notice of appeal shall specify the party or parties

taking the appeal, shall designate the judgment from which reli ef is sought, and shall name the court to which the appeal is t aken. An appeal shall not be dismissed for informality of form or title of the notice of appeal. Undoubtedly, an appeal is a continuing proceeding, and, as seen in T.R.A.P. 3(f), failing to name a party in a caption i s not a reason for dismissal of the action. L ikewise, the instantcase is a continuing pr oceeding whereby f ailing to name a

party does not

justify dismissal of the action.

Further, even if a petition for review were an original action, failure to name all parties in said petition would not prove fatal to Schering-Plough’s action. Tenn. R. Civ. P. 10.01 provides:

Every pleading shall contain a caption settingfor the name of the court and county wher ein the action is filed o r is pending, the title of the action, the file number, and a designat ion as in Rule 7.01. In the complaint the title of the actio n shall include the names of all the parties, . .

. Although Rule 10.01 requires the caption of a complaint to name all partie s, this is merely
a technical requirement. Goss , 751 S.W.2d, at 824; See Blanchard v. Terry & Wright, Inc. , 331 F.2d 467, 469 (6th Cir. 1964) , cert. denied , 379 U.S . 831, (1964). The caption requirement

of Rule 10 is for identification purposes, and does not control who is a party in the ac tion

. Goss , at 824; Greenwood v. Ross , 778 F.2d 448, 452 (8th Cir. 1985); Blanchard

v. Terry & Wright, Inc. , supra . at 469. The issue of who is a prop er party defendant must be determined from the allegation s of the complaint. Goss , at 824, 825; Tyrolf v. Veterans Adm inistration , 82 F.R.D. 372, 374-375 (E.D .La. 1979).8

In Southwest Motor Freight, Inc. v. Department of Com merce an d In surance , No. 01-A-01-9209-CH00371, 1993 WL 82423, *1 (Tenn. Ct. App. March 24, 1993), the court faced a situation similar to the one with which w

e are faced. In Southwest , an action arose from a dispute between Southwest Mot or Freight, Inc. (“ Southwest”) and Liberty Mutual Insurance Company (“Liberty” ) concerning insuranc

e premiums. South west Mo tor Freight, Inc. v. Department of Commerce and Insurance , N o. 01 -A-0 1- 92 09 -C H0 03 71 , 1 99 3 WL 82423, at * 1. Administr ative pro ceedings conducted by the Tennessee Department of Commerce and Insurance resulted in an order by the commissioner. Co ncluding that the order improperly calculate

d the premiums, Sou th west filed a petition for r eview in the ChanceryCourt fo r Davidson County. The caption of the petition named the commis sioner
as the only respondent. Altho ugh not listed as a party to the suit, Liberty

was served with
a copy of the petition. The state o f Tennessee filed a motion to dismiss for

failure to join
an indispensable party, failure to state a claim upon which relief could be granted, and lack of subject matter j urisdi ction. The chancellor dismi ssed the case for failure to joi n an indispensable party--namely Liber ty. This Court over

turned the dismissal. Citing Goss v. Hutchins , 751 S.W.2d 821 (Ten n. 1988), the Southwest court stated that the parties to a lawsuit are not necessarily d etermined by the caption on the petition for review. Th e Southwest

court went on to stat e that two other factors must be considered in determining whether a party no t listed i n the caption is a party to the suit: (1) whether the unnamed party knew the plaintiff’s action was intende d as a suit against it; and (2) whether the unnamed party was prejudiced by the omission of its name in the caption. (citing Goss v. Hutchins , 751 S.W.2 d at 825 .) The Southwest court concluded that Liberty knew it was
an intended party

when reviewin g their par ticipati on in the administ rative proceedings and that Liberty w

as not preju diced in any way by the omission o

f its name

in the caption of

the petition for review.

Like Southwest , She lbyCounty was not name d as a responde nt on ScheringPlough’s petition for review but was served w

ith a copy of th e petition for review. Unlike Southwest , the record does not make clear whe ther Shel by County was a par ty to the adminis trative proceedings thus prov iding Shelby County

with the requisit

e knowledge of9

Schering-Plough’s intent to make Shelby County a party. In any event, nowhere i n T.C.A. § 4-5-322(b) do we find that all parties must be named in the petition for review. The only requirement

is that the petition for review be filed within the 60 day time lim it. ScheringPlough fi led thei r petition for review within this 60 day time limit and, thus, satisfied this particular requirement of T.C.A. § 4-5-322(b).

Secondl y, and in addition to asserting that all p arties of re cord must be named in the petition for review , the Board further contends that all parties

of record must be served
w i thin the 60 day time limitation of T.C.A. § 4-5-322(b)(1). W e cannot agree with this assertion. The Board would have this court believe that the 60 day limit of (b)(1) att aches itself to (b)(2) thereby r equiring that all s

ervice be had within this 60 day period. This is a strained reading of T.C.A. § 4-5-322(b) and conv erse to the plain, ordinary language of the statutue. According to the plain import ofT.C.A. § 4-5-322 (b)(2),proper service req uires onlythat copiesof the petition for review be served upon the agency rendering the decision and all parties of record, including the attorney general and reporter in compliance w ith the Tennessee Rules of Civil Proc edure pertaining to serv ice of process. In the instant case, it is undisputed that

service was had upon

the Board, Shelby County , the Shelby County tax assess or, the Shelby County trustee and the attorney general and reporter in compliance with the Tennessee Rules of C ivil Procedure. As mentioned above, the record is unclear as to whether Sh elby Cou nty was a “party of record” to the admi nistrati ve proceedings below. Nonetheless, Sc hering-Plough serv

ed copies of the petition for review upon the Shelby County attorney ’s office, the Shelby County tax assessor and the Shel by County trustee in satisfaction of the requirements of T .C.A. § 4-5-322(b)(2).

To su mmari ze, T.C.A. § 4-5-322(b) sets forth two requir ements when seeking judicial review of an administr ative decision: (1) the filing of a petition for review within 60 days after the entry of

the agency’s final order; and (2) the serving of copies of the petition forreview upon the agencyrendering the final adminis trative order and upon al l partiesof record, including the attorney general and reporter. I n the case before us, it is undisputed that Scheri ng-Plo ugh file d its pe tition fo r r eview within the 60 day period as set out in10

T.C.A. § 4-5-322(b)(1). It is also undispu ted that Scher ing- Plough caused a copy of the petition for review to be ser ved upon the Board, Shelby County, the Shelby Cou nty ta x assessor, the Shelby County trust ee and the attorney general and reporter in accordance with the Tenne

ssee Rul es of Civil Procedure. At oral arg ument in this matter, it w as conceded that the Shelby County t ax assessor’s office w

as a party of record to the entire adminis trative proceedings. As such, ac cording to JACO , the assessor’s office continued to be a party

in the judicial rev

iew when Schering -Plough compliedwith the requirements of T.C.A. § 4-5-322(b) by filing their petition for r ev iew within the 60 day time period and serving the assessor’s office, the Board and the attorney g eneral and reporter with copies of said petition. As mentioned supra , the record before us, however, is unclear concerning whether or not Shelby County was a party to the admin istrative proceedings below. In any event, Schering-Plough served the Shelby County attorney’s office, the Shelby County tax
assessor and the S helby C

ounty t rustee w

ith copi es of t he petition, thus satisfying the requirements of T.C.A. § 4-5- 322(b)(2).

In light of

the foregoing, the judgment of the trial court is r eversed and this matter is remanded for further necessary proceedings. Costs of this appeal are taxedto the State Board of Equalization, for w hich execution may is

sue if necessary.

HIGHERS, J.

CONCUR:

FARMER, J.11

LILLARD,J.