# FILED

August 25, 1997 Cecil W. Crowson Appellate Court Clerk August 25, 1997 1 FOR PUBLICATION 2 3 IN THE SUPREME COURT OF TENNESSEE 4 5 AT NASHVILLE 6 7 8 9 JOHN JACO, ( 10 ( 11 Petitioner-Appellee, ( 12 ( 13 ( Davidson Chancery 14 ( 15 v . ( Hon. Robert S. Brandt, 16 ( Chancellor 17 ( 18 ( S. Ct. No. 01S01-9609-CH-00171 19 DEPARTMENT OF HEALTH, BUREAU ( 20 OF MEDICAID, ( 21 ( 22 Respondent-Appellant. ( 23 24 25 26 For Petitioner-Appellee: For Respondent-Appellant: 27 28 Thomas F. Bloom John Knox Walkup 29 Nashville Attorney General and Reporter 30 Nashville 31 32 Michael E. Moore 33 Solicitor General 34 35 Michelle K. Hohnke 36 Nashville 37 38 39 40 41 42 O P I N I O N 43 44 45 46 47 48 49 50 51 JUDGMENT OF COURT OF APPEALS 52 AFFIRMED. REID, J. 53 54 This case presents for review the decision of the Court of 55-2-

Appeals reversing the trial court’s dismissal of a petition for 1 judicial review of an administrative decision. The judgment of the 2 Court of Appeals is affirmed. 3 4 On January 18, 1995, the petitioner, John Jaco, filed a 5 petition for judicial review of a final administrative decision by 6 the Department of Health, Bureau of Medicaid (the Department), 7 denying the petitioner’s application for medicaid benefits. The 8 petition was filed 58 days after the date on which the administrative 9 decision became final. Copies of the petition were mailed to and 10 received by the Department and by the Attorney General. On March 24, 11 1995, counsel for the petitioner caused a summons to be issued and 12 served on the Department and the Attorney General. 13 14 Upon motion by the Department, the court dismissed the 15 petition on the ground that petitioner’s failure to have a summons 16 issued within 60 days of the effective date of the administrative 17 decision deprived the court of jurisdiction to consider the petition. 18 19 The Court of Appeals reversed. That court held that 20 proceedings in the chancery court for review of an administrative 21 decision may be initiated without the issuance of a summons. 22 23 The Uniform Administrative Procedures Act provides that a 24 person who is aggrieved by a final decision in a contested case is 25 entitled to judicial review of the case. Tenn. Code Ann. § 4-5- 26 322(a)(1) (Supp. 1996). The petition filed in the chancery court 27 shows there was a contested case between the petitioner and the 28-3-

Department, and the petition alleges that the petitioner is aggrieved 1 by the decision of the administrative law judge which was affirmed by 2 the Department.SeeTenn. Code Ann. § 4-5-314; 4-5-315 (1991). The 3 petitioner, therefore, asserts a right to judicial review. 4 5 The statutory provisions for obtaining judicial review 6 pertinent to the issues presented in this case state: 7 8 (1) Proceedings for review are instituted 9 by filing a petition for review in the chancery 10 court of Davidson County, unless another court 11 is specified by statute. Such petition shall be 12 filed within sixty (60) days after the entry of 13 the agency’s final order thereon. . . . 14 15 (2) In a case in which a petition for 16 judicial review is submitted within the sixty17 day period but is filed with an inappropriate 18 court, the case shall be transferred to the 19 appropriate court. . . . Copies of the petition 20 shall be served upon the agency and all parties 21 of record, including the attorney general and 22 reporter, in accordance with the provisions of 23 the Tennessee Rules of Civil Procedure 24 pertaining to service of process. 25 26 27 28 Tenn. Code Ann. § 4-5-322(b). 29 30 The Department insists that the filing of both the 31 petition for review and a summons within 60 days are required to 32 initiate a proceeding for judicial review. It asserts that failure 33 to cause a summons to issue within 60 days of the date of the 34 administrative decision is fatal to the right of review, even though 35 the petition was filed and copies thereof were served on the 36 Department and the Attorney General within the 60 day period. The 37 Department relies upon that portion of subsection (b)(2) which 38-4-

provides that “[c]opies of the petition shall be served upon the 1 agency and all parties of record, including the attorney general and 2 reporter, in accordance with the provisions of the Tennessee Rules of 3 Civil Procedure pertaining to service of process.” The Department 4 contends that this reference to the rules requires that all the 5 formalities necessary to commence an original action, including the 6 issuance of a summons, must be followed in initiating a petition for 7 judicial review. 8 9 The petitioner contends that the statute only requires 10 that the petition be filed within 60 days and that it be served in 11 accordance with the rules of civil procedure. 12 13 This Court must rely on the well established rules of 14 construction to determine this issue. “The most basic rule of 15 statutory construction is to ascertain and give effect to the 16 intention and purpose of the legislature.”Carson Creek Vacation 17 Resorts, Inc. v. State, 865 S.W.2d 1, 2 (Tenn. 1993). 18 19 When the words of a statute are plain and 20 unambiguous, the assumption is “that the 21 legislature intended what it wrote and meant 22 what it said.” The pertinent language must be 23 [applied] “without any forced or subtle 24 construction extending its import.” 25 26 27 28 McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 296 (Tenn. 1992) 29 (quotingWorrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977)). 30 31 The statute by its terms does not require that a summons 32-5-

be filed in order to obtain judicial review. Subsection (b)(l) 1 states that “[p]roceedings for review are instituted by filing a 2 petition for review.” The statute then states that “[s]uch petition” 3 shall be filed within 60 days after the entry of the final decision 4 in the case to be reviewed. This subsection does not refer directly 5 or by reference to a summons. 6 7 The next subsection, (b)(2), sets forth the procedure to 8 be followed if the petition is filed in an inappropriate court. 9 Again, it refers only to “a petition for judicial review” and 10 provides that the case be transferred to the appropriate court. The 11 Rules of Civil Procedure are mentioned in the statute only in 12 reference to service of copies of the petition. Again, only the 13 petition is mentioned: “Copies of the petition shall be served upon 14 the agency and all parties of record, including the attorney general 15 and reporter, in accordance with the provisions of the Tennessee 16 Rules of Civil Procedure pertaining to service of process.” The 17 applicability of the rules to the statutory procedure is limited to 18 the rules “pertaining to service of process.” Significantly, the 19 statute does not refer to the rules pertaining to the commencement of 20 an action, but only to the rules pertaining to the service of 21 process. In addition, the reference in the statute to “all parties 22 of record” indicates a continuing proceeding in which the parties 23 have been determined and areof record. The service of a summons on 24 “a party of record” would serve no useful purpose not accomplished by 25 the service of a copy of the petition. 26 27 The Department insists that Rule 4.04 requires the filing 28-6-

and issuing of a summons in every case of judicial review. Rule 4.04 1 provides: 2 3 The plaintiff shall furnish the person making 4 the service with such copies of the summons and 5 complaint as are necessary. Service shall be 6 made as follows: 7 8

. . . 9 10 (8) Upon the state of Tennessee or any 11 agency thereof, by delivering a copy of the 12 summons and of the complaint to the attorney 13 general of the state or to any assistant 14 attorney general. 15 16 Tenn. R. Civ. P. 4.04. 17 18 This rule obviously sets forth the procedure to be 19 followed in commencing an action against a state agency. However, it 20 does not follow that the applicable provisions of Rule 4 regarding 21 service of process cannot be utilized by reference in the 22 Administrative Procedures Act without incorporating into that 23 statutory procedure the inapplicable provisions. The “process” 24 served in an original civil action to which Rule 4 applies are the 25 complaint and summons, Tenn. R. Civ. P. 3, while the “process” in a 26 proceeding for review of an administrative decision is a petition for 27 review. The process is not the same, but since the method and means 28 of service set forth in the rules have been adopted by the statute, 29 the method and means of service are the same. 30 31 The Department relies uponHRA, Inc. v. Tenn. Dept. of 32 Commerce and Ins., 914 S.W.2d 512, 513-14 (Tenn. Ct. App. 1995), 33-7-

which is the only reported decision in which the issue before the 1 Court has been discussed. In that case, the final administrative 2 decision was made by the Tennessee Department of Commerce and 3 Insurance. The issue in the contested case was the “experience 4 modification factor” applicable to HRA for determining the premium 5 for “assigned risk workers’ compensation insurance.” That factor was 6 determined by the National Council on Compensation Insurance (NCCI) 7 subject to final approval by the Department of Commerce and 8 Insurance. HRA filed a petition for judicial review of the 9 administrative decision. The petition named only the Department of 10 Commerce and Insurance as a defendant. A copy of the petition was 11 served on the Department, and a copy was delivered to the attorney 12 who had represented NCCI in the administrative proceedings. 13 14 The Court of Appeals held that the petitioner had failed 15 to preserve its right of review against NCCI, the only party against 16 which the petitioner stated a “viable issue.” Id.at 516. Although 17 not essential to its decision, the Court of Appeals stated: 18 “Clearly, under the quoted statute and rule [3], the petitioner, HRA, 19 was required to filea complaint (petition for review)and summons 20 for service upon all interested parties, including NCCI.” Id.at 5l4 21 (emphasis in original). The decision inHRA, Inc.that the 22 petitioner failed to preserve its right of review in its dispute with 23 NCCI is clearly correct. However, for the reasons discussed above, 24 it appears that the language of the statute does not permit an 25 interpretation which conditions the right to judicial review upon the 26 issuance of a summons when the party against which relief is sought 27 was a party to the administrative proceedings and is served with a 281The rationale on which this decision is based would not apply where a

person or agency that was not a party to the administrative proceedings is made a party to the proceedings for judicial review.

-8- copy of the petition.1 1 2 The filing and issuance of a summons are not required in 3 all original actions. The commission comments to Rule 3 state: 4 5 There are some statutory causes of action 6 where commencement occurs without a summons, in 7 which instances Rule 3 would not apply.See 8 Tennessee State Board of Education v. Cobb, 557 9 S.W.2d 276 (Tenn. 1977), holding that teacher 10 tenure cases dispense with a summons in favor of 11 serving board of education members by registered 12 mail with copies of a chancery court petition, 13 as authorized by T.C.A. § 49-5-513. A sampling 14 of other statutes follows: 15 16 T.C.A. § 36-3-601 et seq., order of 17 protection 18 19 T.C.A. § 36-4-103, irreconcilable 20 differences divorce 21 22 T.C.A. § 50-6-206, workers’ compensation 23 settlement 24 25 T.C.A. § 34-3-113, minors’ settlement 26 27 T.C.A. § 29-16-105, eminent domain 28 29 T.C.A. § 36-1-112, adoption with consent 30 31 T.C.A. § 29-8-102, name change 32 33 T.C.A. § 40-29-103, restoration of 34 citizenship rights for felons convicted before 35 July 1, 1986. 36 37 38 39 Rule 3, Advisory Commission Comments [1993]. 40 41 42 43 The legislature obviously concluded that the issuance of a 44-9-

summons would not be necessary in every application for judicial 1 review of an administrative decision. 2 3 The decision of the Court of Appeals reversing the 4 dismissal of the petition is affirmed, and the case is remanded to 5 the trial court for further proceedings. 6 7 Costs are taxed against the Department of Health, Bureau 8 of Medicaid. 9 10

_________________________ 11 Reid, J. 12 13 14 Concur: 15 16 Anderson, C.J., Drowota, Birch, 17 and Holder, JJ. 18