### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs July 1, 2021

FRED AUSTON WORTMAN, III v. STATE OF TENNESSEE BOARD OF

PAROLE ET AL



### .

Appeal from the Chancery Court for Davidson County

No. 20

- 619

- IV Russell T. Perkins, Chancellor

___________________________________

No. M2020

- 01554

- COA

- R3

- CV

___________________________________

After being denied parole, Fred Auston Wortm a n, III (“Plaintiff”) filed suit against the State of Tennessee (the “State”), the Tennessee Board of Parole (th e “Board”), several board members and other state employees, and two assistant district attorneys in the Chancery Court for Davidson County (the “trial court”). Several defendants moved for dismissal for failure to state a claim for which relief can be gr anted . The trial court granted

the motion to dismiss and Plaintiff appealed to this Court. Because the trial court’s order is not final, however, we lack subject matter jurisdiction to hear this appeal. The appeal is

therefore dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

K RISTI M. D AVIS

, J., delivered the opinion of the C ourt, in which D. M ICHAEL S WINEY

, C.J., and F RANK G. C LEMENT J R

., P.J., M.S., joined.

Fred Auston Wortman, III , Wartburg, Tennessee, Pro S e.

Herbert H. Slatery III

, Attorney General and Reporter, and Pamela S. Lorch, Senior Assistant Attorney General for the appellees the State of Tennessee, Tennessee Board of

Parole , Gary Faulcon, Gay Gregson, Roberta Kustoff, Richard Montgomery, Tim Gobble, Zane Duncan, Barrett Rich, Rob Clark, Jim Purviance, Richard O’Bryan, Mark Davidson,

and Paul Hagerman

.

MEMORANDUM OPINION 1

1 Rule 10 of the Tennessee Court of Appeals Rules provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall- 2

-

Plaintiff, an inmate incarcerated in Morgan County, Tennessee, filed this action against the State

, the Board

, Gary Faulcon, Gay Gregson, Roberta Kustoff, Richard Montgomery, Tim Gobble, Zane Duncan, Barrett Rich, Rob Clark, Jim Purviance, Gayle Barbee, Richard O’Bryan, Mark Davidson, Paul Hagerman, and “ F/N/U Stewart ” on June 30, 2020 in the trial cou rt

. The non

- entity defendants are members of the Board and State employees otherwise affiliated with the Board. It is un clear from the record what position

is held by defendant Stewart , although the complaint alleges Stewart is a “Board or TDOC” employee

. The caption of the complaint provides that all non

- entity defendants were sued in both their official and individual capacities.

Plaintiff’s allegations arise from a parole hearing that occurred on September 19,

2019. The complaint alleges that prior to the hearing , a risk assessment was conducted on Plaintiff, the result of which was that Plaintiff was at a low risk of re

- offending. The complaint then alleges that “ Board or TDOC employee F/N / U Stewart contacted counselor

Freddie Sevier at the Mo rgan County Correctional Complex in order to pressure and influence Mr. Sevier to negatively change a risk assessment score that had been assigned to [Plaintiff].” According to the complaint, d efendants Davidson and Hagerman, who were the prosecutors in t he underlying criminal action resulting in Plaintiff’s incarceration,

testified at the parole hearing. Plaintiff alleges that d efendant Board member Faulcon “after less than five minutes of ‘deliberating’ recommended to defer parole review until

2026. ” The complaint further avers that prior to the hearing

, d efendant Davidson

“ participated in a closed

- door, private, secret ex parte meeting with one or more members of the Board for the purpose of influencing the Board to deny parole release to [Plaintiff ] and to set off any review of [Plaintiff’s] release as long as possible. ” The Board’s written notice denying Plaintiff’s request for parole was sent to Plaintiff on October 7, 2019

. Accordingly, Plaintiff purports to allege causes of action for tortious interference with an administrative hearing, civil and criminal conspiracy, collusion, bribery and/or conspiracy to commit bribery, fraud, tortious undue influence of a government employee and government operations, violations of the Double Jeopardy doctr ine, failure to act in good faith generally, breach of contract, an d violation of the separation of powers doctrine. The crux of the complaint ultimately is that ex

- parte contact between d efendants Davidson and Faulcon occurred just prior to Plaintiff’s p arole hearing in contravention of Plaintiff’s due process protections, and that the remainder of the defendants conspired to conceal this purported meeting.

On July 13, 2020, the State, the Board, and defendants Faulcon, Gregson, Kustoff, Montgomery, Gob ble, Duncan, Rich, Clark, Purviance, O’Bryan, Davidson, and Hagerman moved the trial court for dismissal of the complaint pursuant to Tennessee Rule

of Civil Procedure 12.02 (1) and (6), arguing t hat the trial court lacked subject matter jurisdiction over Plaintiff’s claims by virtue of sovereign immunity . Regarding the non

-

be designated “MEMORANDUM OPINION

, ” shall not be published, and shall not be

cit ed or relied on for any reason in any unrelated case.- 3

-

entity defendants mentioned above, the motion provided in a footnote that service was “made and accepted [by the Attorney General] in their official capacities only.” Aside

from this f

ootnote, no argument was made in the motion to dismiss regarding insufficient service of process or personal jurisdiction. Additionally, the motion to dismiss contained

no reference to defendant Barbee or defendant Stewart.

Plaintiff responded to the mo tion, largely reiterating the allegations contained in the complaint. On August 11, 2020 the State, the Board, and defendants Faulcon, Gregson, Kustoff, Montgomery, Gobble, Duncan, Rich, Clark, Purviance, O’Bryan, Davidson, and Hagerman filed a reply to P laintiff’s response. Once again, there was no mention of

defendants Barbee or Stewart. In this response, defendants Faulcon, Gregson, Kustoff, Montgomery, Gobble, Duncan, Rich, Clark, Purviance, O’Bryan, Davidson, and Hagerman argued for the first time t hat because t hey “were only served summons in their official capacities[,]” “they [were] sued and represented in their official capacities only.” This reply further provides that “counsel has consistently stated which persons are represented by the Attorn ey General’s Office and the capacity in which they are represented.” However, defendants Faulcon, Gregson, Kustoff, Montgomery, Gobble, Duncan, Rich, Clark, Purviance, O’Bryan, Davidson, and Hagerman then alternatively argued that the claims against them in their individual capacities should be dismissed for

other various reasons.

The trial court entered an order on August 21, 2020, granting the motion to dismiss. The trial court found that the claims against the State, the Board, and defendants Faulcon, Gregson, Kustoff, Montgomery, Gobble, Duncan, Rich, Clark, Purviance, O’Bryan, Davidson, and Hagerman in their official capacities were barred by the doctrine of sovereign immunity. Regarding service on the defendants, the trial court noted that “[a]ll defendants were served in their official capacities by certified mail on the Attorney General’s Office[,]” and that “[o]nly Defendants Davidson and Hagerman were also served in their individual capacities by certified mail.” As pertinent, the trial court explained:

[B] ased upon the allegations against Defendants as stated in Mr.

Wortman ’ s Complaint, the Court determines that the State, the Board

of Parole and the individual defendants, in their official capacities, have sovereign immunity from suit. As service of suit upon Defendants Faulcon, Gregson, Kustoff, Montgomery, [G] obble, Duncan, Rich, Clark, Purviance, and O ’ Bryan was made and accepted

in their official capacities only, these Defendants are dismissed, as are the State, the Board , and Defendants Davidson and Hagerman in their official capacities, on the basis of sovereign immunity.

While the trial court made a finding that the above

- mentioned defendants were served only in their official capacities, it did not make an express f inding that they were dismissed, in their individual capacities, based on insufficient service. Rather, the trial- 4

-

court ultimately concluded that the claims against the parole board members, in their individual capacities, were barred by the doctrine of q uasi

- judicial immunity. The trial

court also concluded that the claims against defendant Clark, in his individual capacity, were barred by quasi

-

judicial immunity, and that the claims against defendants Davidson

and Hagerman in their individual capacities were barred by “absolute witness immunity.” Finally, the trial court concluded that the complaint contained no factual averments regarding defendants Purviance or O’Brya n. Defendants Barbee and Stewart were not

mentioned in the trial court’s order. Pla intiff appealed to this Court.

Pl aintiff purports to raise several issues on appeal, most of which are duplicative. As we perceive it, the sole issue raised by Plaintiff is whether the trial court erred in concluding that Plaintiff failed to state a cla im for which relief could be granted against the dismissed defendants. However, our review of the record leads us to conclude that the dispositive issue here is whether this Court l acks subject matter jurisdiction over this appeal. 2 Because “a determination of whether subject matter jurisdiction exists is a question of law, our standard of review is de novo, without a presumption of correctness.” Chapman v. DaVita, Inc. , 380 S.W.3d 710, 712 (Tenn. 2012) (quoting Northland Ins. Co.

v. State , 33S.W.3d 727, 729 (Tenn. 2000)).

“ S ubject matter jurisdiction concerns the authority of a particular court to hear a particular controversy [,] ” Meighan v. U.S. Sprint Commc’ns Co. , 924 S .W.2d 632, 639 (Tenn. 1996) (citing Landers v. Jones , 872 S.W.2d 674 (Tenn. 1994)) , and “ relates to the nature of the cause of action and the relief sought and is conferred by the sovereign authority which organizes the court.” Landers , 872 S.W.2d at 675 (citing Brown v. Brown

, 296 S.W.2d 356 (Tenn. 1927)). T his C ourt must possess subject matter jurisdiction in order to adjudicate a claim and subject matter jurisdiction cannot be waived. Id. As orders and judgments entered by courts lacking subject matter jurisdiction are void, “issues regarding subject matt er jurisdiction should be considered as a threshold inquiry” and “resolved at the earliest possible opportunity.” In re Estate of Trigg , 368 S.W.3d 483, 489 (Tenn. 2012) (citing Redwing v. Catholic Bishop for the Diocese of Memphis

, 363 S.W.3d 436, 445 (Tenn. 2012) ; Brown v. Brown , 281 S.W.2d 492, 497 (Tenn. 1955)).

To evaluate subject matter jurisdiction, we examine the “ ‘avenue’ by which the appeal is being pursued before this Court.” E Sols

. for B ld gs

. , LLC v. Knestrick Contractor,

Inc.

, No. M2018

- 00732

- COA

- R3

- CV, 2018 WL 1831116, at *3 (Tenn. Ct. App. Apr. 17, 2018) (quoting Town of Collierville v. Norfolk S. Ry. Co. , 1 S.W.3d 68, 69

– 70 (Tenn. Ct. App. 1998)), perm. app. denied (Tenn. Aug. 9, 2018). “Unless an appeal from an

interlocutor y order is provided by the rules or by statute, appellate courts have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones , 783 S.W.2d 553, 559 (Tenn. 1990)

2 While no party has raised this issue, it is incumbent up on this Court to determine whether subject matter jurisdiction exists and we therefore raise this issue sua sponte

. See Morrow v. Bobbitt , 943 S.W.2d 384, 391

– 92 (Tenn. Ct. App. 1996); see also Tenn. R. App. P. 13(b).- 5

-

( quo ting Aetna Cas

. & Sur

. Co. v. Miller

, 491 S.W.2d 85 (Tenn. 1973) ) ; see also Tenn. R. App. P. 3(a) . A final judgment adjudicates all “ claims, rights, and liabilities of all the parties ” and “ resolves all the issues [leaving] ‘nothing else for the trial court to do.’” E

Sols. , 2018 WL 1831116, at *3 (citing Discover Bank v. Morgan

, 363 S.W.3d 479, 488

n.17 (Tenn. 2012) ; In re Estate of Henderson

, 121 S.W.3d 643, 645 (Tenn. 2003) ).

Here, the trial court’s order leaves completely unaddressed two defendants

– Gayle

Barbee and “F/N/U Stewart. ” While the complaint suggests that both ar e employees of the State or affiliated with the Board in some way, counsel for the State did not mention Barbee

or Stewart in the motion to dismiss filed on July 13, 2020, nor are these defendants addressed in the reply to Plaintiff’s response to the motio n to dismiss. While the State mentions defendant Stewart in a footnote in its brief to this Court, the footnote provides

that the Attorney General did not accept service for defendant Stewart in his or her 3 official capacity, but urges that defendant Stew art should be dismissed along with the other

defendants. Defendant Barbee is not addressed in the State’s brief at all. Accordingly, we cannot discern from the record before us whether the Attorney General’s office simply does not represent defendants Ba rbee and Stewart, or whether their omission from the trial court proceedings was inadvertent.

In any event, defendants Barbee and Stewart are named as parties in this action but have never sought dismissal of Plaintiff’s claims on any basis . The trial court’s order dismissing the other defendants does not address, much less dispose of, the claims against

defendants Stewart and Barbee. Plaintiff’s claims against them are therefore still pending.

Because the trial court’s order does not resolve all claims against all of the parties to this case, its August 21, 2020 order is nonfinal. Consequently, t his Court lacks subject matter jurisdiction over this appeal, and it must be dismissed.

For the foregoing reasons, the appeal is dismissed. Costs of this appeal are taxed to the appellant, Fred Auston Wortman, III, for which execution may issue if necessary.

KRISTI M. DAVIS, JUDGE

3 The complaint refers to defendant Stewart in some places as “Ms. Stewart

, ” but details regarding

this defendant are otherwise unclear from the record.