FILED

August 25, 1997

Cecil W. Crowson

Appellate Court Clerk

1 August 25, 1997

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5

6 AT NASHVILLE

7

8

9

10 JOHN JACO, (

11 (

12 Petitioner-Appellee, (

13 (

14 ( Davidson Chancery

15 (

16 v . ( Hon. Robert S. Brandt,

17 ( Chancellor

18 (

19 ( S. Ct. No. 01S01-9609-CH-00171

20 DEPARTMENT OF HEALTH, BUREAU (

21 OF MEDICAID, (

22 (

23 Respondent-Appellant. (

24

25

26

For Petitioner-Appellee 27 : For Respondent-Appellant :

28

29 Thomas F. Bloom John Knox Walkup

30 Nashville Attorney General and Reporter

31 Nashville

32

33 Michael E. Moore

34 Solicitor General

35

36 Michelle K. Hohnke

37 Nashville

38

39

40

41

42

43 O P I N I O N

44

45

46

47

48

49

50

51

52 JUDGMENT OF COURT OF APPEALS

53 AFFIRMED. REID, J.

54

55 This case presents for review the decision of the Court of
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1 Appeals reversing the trial court’s dismissal of a petition for

2 judicial review of an administrative decision. The judgment of the

3 Court of Appeals is affirmed. 

4

5 On January 18, 1995, the petitioner, John Jaco, filed a

6 petition for judicial review of a final administrative decision by

7 the Department of Health, Bureau of Medicaid (the Department),

8 denying the petitioner’s application for medicaid benefits. The

9 petition was filed 58 days after the date on which the administrative

10 decision became final. Copies of the petition were mailed to and

11 received by the Department and by the Attorney General. On March 24,

12 1995, counsel for the petitioner caused a summons to be issued and

13 served on the Department and the Attorney General.

14

15 Upon motion by the Department, the court dismissed the

16 petition on the ground that petitioner’s failure to have a summons

17 issued within 60 days of the effective date of the administrative

18 decision deprived the court of jurisdiction to consider the petition. 

19

20 The Court of Appeals reversed. That court held that

21 proceedings in the chancery court for review of an administrative

22 decision may be initiated without the issuance of a summons. 

23

24 The Uniform Administrative Procedures Act provides that a

25 person who is aggrieved by a final decision in a contested case is

26 entitled to judicial review of the case. Tenn. Code Ann. § 4-5-

27 322(a)(1) (Supp. 1996). The petition filed in the chancery court

28 shows there was a contested case between the petitioner and the
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1 Department, and the petition alleges that the petitioner is aggrieved

2 by the decision of the administrative law judge which was affirmed by

3 the Department. See Tenn. Code Ann. § 4-5-314; 4-5-315 (1991). The

4 petitioner, therefore, asserts a right to judicial review.

5

6 The statutory provisions for obtaining judicial review

7 pertinent to the issues presented in this case state:

8

9 (1) Proceedings for review are instituted

10 by filing a petition for review in the chancery

11 court of Davidson County, unless another court

12 is specified by statute. Such petition shall be

13 filed within sixty (60) days after the entry of

14 the agency’s final order thereon. . . .

15

16 (2) In a case in which a petition for

17 judicial review is submitted within the sixty18 day period but is filed with an inappropriate

19 court, the case shall be transferred to the

20 appropriate court. . . . Copies of the petition

21 shall be served upon the agency and all parties

22 of record, including the attorney general and

23 reporter, in accordance with the provisions of

24 the Tennessee Rules of Civil Procedure

25 pertaining to service of process.

26

27

28

29 Tenn. Code Ann. § 4-5-322(b).

30

31 The Department insists that the filing of both the

32 petition for review and a summons within 60 days are required to

33 initiate a proceeding for judicial review. It asserts that failure

34 to cause a summons to issue within 60 days of the date of the

35 administrative decision is fatal to the right of review, even though

36 the petition was filed and copies thereof were served on the

37 Department and the Attorney General within the 60 day period. The

38 Department relies upon that portion of subsection (b)(2) which
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1 provides that “[c]opies of the petition shall be served upon the

2 agency and all parties of record, including the attorney general and

3 reporter, in accordance with the provisions of the Tennessee Rules of

4 Civil Procedure pertaining to service of process.” The Department

5 contends that this reference to the rules requires that all the

6 formalities necessary to commence an original action, including the

7 issuance of a summons, must be followed in initiating a petition for

8 judicial review. 

9

10 The petitioner contends that the statute only requires

11 that the petition be filed within 60 days and that it be served in

12 accordance with the rules of civil procedure. 

13

14 This Court must rely on the well established rules of

15 construction to determine this issue. “The most basic rule of

16 statutory construction is to ascertain and give effect to the

17 intention and purpose of the legislature.” Carson Creek Vacation

18 Resorts, Inc. v. State , 865 S.W.2d 1, 2 (Tenn. 1993).

19

20 When the words of a statute are plain and

21 unambiguous, the assumption is “that the

22 legislature intended what it wrote and meant

23 what it said.” The pertinent language must be

24 [applied] “without any forced or subtle

25 construction extending its import.”

26

27

28

29 McClain v. Henry I. Siegel Co ., 834 S.W.2d 295, 296 (Tenn. 1992)

30 (quoting Worrall v. Kroger Co. , 545 S.W.2d 736, 738 (Tenn. 1977)).

31

32 The statute by its terms does not require that a summons
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1 be filed in order to obtain judicial review. Subsection (b)(l)

2 states that “[p]roceedings for review are instituted by filing a

3 petition for review.” The statute then states that “[s]uch petition”

4 shall be filed within 60 days after the entry of the final decision

5 in the case to be reviewed. This subsection does not refer directly

6 or by reference to a summons. 

7

8 The next subsection, (b)(2), sets forth the procedure to

9 be followed if the petition is filed in an inappropriate court. 

10 Again, it refers only to “a petition for judicial review” and

11 provides that the case be transferred to the appropriate court. The

12 Rules of Civil Procedure are mentioned in the statute only in

13 reference to service of copies of the petition. Again, only the

14 petition is mentioned: “Copies of the petition shall be served upon

15 the agency and all parties of record, including the attorney general

16 and reporter, in accordance with the provisions of the Tennessee

17 Rules of Civil Procedure pertaining to service of process.” The

18 applicability of the rules to the statutory procedure is limited to

19 the rules “pertaining to service of process.” Significantly, the

20 statute does not refer to the rules pertaining to the commencement of

21 an action, but only to the rules pertaining to the service of

22 process. In addition, the reference in the statute to “all parties

23 of record” indicates a continuing proceeding in which the parties

have been determined and are of record 24 . The service of a summons on

25 “a party of record” would serve no useful purpose not accomplished by

26 the service of a copy of the petition. 

27

28 The Department insists that Rule 4.04 requires the filing
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1 and issuing of a summons in every case of judicial review. Rule 4.04

2 provides:

3

4 The plaintiff shall furnish the person making

5 the service with such copies of the summons and

6 complaint as are necessary. Service shall be

7 made as follows:

8

9 . . .

10

11 (8) Upon the state of Tennessee or any

12 agency thereof, by delivering a copy of the

13 summons and of the complaint to the attorney

14 general of the state or to any assistant

15 attorney general.

16

17 Tenn. R. Civ. P. 4.04.

18

19 This rule obviously sets forth the procedure to be

20 followed in commencing an action against a state agency. However, it

21 does not follow that the applicable provisions of Rule 4 regarding 

22 service of process cannot be utilized by reference in the

23 Administrative Procedures Act without incorporating into that

24 statutory procedure the inapplicable provisions. The “process”

25 served in an original civil action to which Rule 4 applies are the

26 complaint and summons, Tenn. R. Civ. P. 3, while the “process” in a

27 proceeding for review of an administrative decision is a petition for

28 review. The process is not the same, but since the method and means

29 of service set forth in the rules have been adopted by the statute,

30 the method and means of service are the same. 

31

32 The Department relies upon HRA, Inc. v. Tenn. Dept. of

33 Commerce and Ins. , 914 S.W.2d 512, 513-14 (Tenn. Ct. App. 1995),
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1 which is the only reported decision in which the issue before the

2 Court has been discussed. In that case, the final administrative

3 decision was made by the Tennessee Department of Commerce and

4 Insurance. The issue in the contested case was the “experience

5 modification factor” applicable to HRA for determining the premium

6 for “assigned risk workers’ compensation insurance.” That factor was

7 determined by the National Council on Compensation Insurance (NCCI)

8 subject to final approval by the Department of Commerce and

9 Insurance. HRA filed a petition for judicial review of the

10 administrative decision. The petition named only the Department of

11 Commerce and Insurance as a defendant. A copy of the petition was

12 served on the Department, and a copy was delivered to the attorney

13 who had represented NCCI in the administrative proceedings.

14

15 The Court of Appeals held that the petitioner had failed

16 to preserve its right of review against NCCI, the only party against

which the petitioner stated a “viable issue.” Id. 17 at 516. Although

18 not essential to its decision, the Court of Appeals stated: 

19 “Clearly, under the quoted statute and rule [3], the petitioner, HRA,

20 was required to file a complaint (petition for review) and summons

21 for service upon all interested parties, including NCCI.” Id. at 5l4

22 (emphasis in original). The decision in HRA, Inc. that the

23 petitioner failed to preserve its right of review in its dispute with

24 NCCI is clearly correct. However, for the reasons discussed above,

25 it appears that the language of the statute does not permit an

26 interpretation which conditions the right to judicial review upon the

27 issuance of a summons when the party against which relief is sought

28 was a party to the administrative proceedings and is served with a
1

The 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. 

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copy of the petition. 11 

2

3 The filing and issuance of a summons are not required in

4 all original actions. The commission comments to Rule 3 state:

5

6 There are some statutory causes of action

7 where commencement occurs without a summons, in

8 which instances Rule 3 would not apply. See

9 Tennessee State Board of Education v. Cobb , 557

10 S.W.2d 276 (Tenn. 1977), holding that teacher

11 tenure cases dispense with a summons in favor of

12 serving board of education members by registered

13 mail with copies of a chancery court petition,

14 as authorized by T.C.A. § 49-5-513. A sampling

15 of other statutes follows:

16

17 T.C.A. § 36-3-601 et seq., order of

18 protection

19

20 T.C.A. § 36-4-103, irreconcilable

21 differences divorce

22

23 T.C.A. § 50-6-206, workers’ compensation

24 settlement

25

26 T.C.A. § 34-3-113, minors’ settlement

27

28 T.C.A. § 29-16-105, eminent domain

29

30 T.C.A. § 36-1-112, adoption with consent

31

32 T.C.A. § 29-8-102, name change

33

34 T.C.A. § 40-29-103, restoration of

35 citizenship rights for felons convicted before

36 July 1, 1986.

37

38

39

40 Rule 3, Advisory Commission Comments [1993].

41

42

43

44 The legislature obviously concluded that the issuance of a
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1 summons would not be necessary in every application for judicial

2 review of an administrative decision. 

3

4 The decision of the Court of Appeals reversing the

5 dismissal of the petition is affirmed, and the case is remanded to

6 the trial court for further proceedings.

7

8 Costs are taxed against the Department of Health, Bureau

9 of Medicaid.

10

11 _________________________

12 Reid, J.

13

14

15 Concur:

16

17 Anderson, C.J., Drowota, Birch,

18 and Holder, JJ.