### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Februar y 14, 2 003 Session RONNIE BROWN, ET AL 

### . v. STATE OF TENNESSEE, ET AL 

### .

Appeal from the Tennessee Claims Comm ission

No. M2002-01361-COA-R3-CV - Filed May 2, 2003

Claimants appeal the action of the Te nnessee Claims Commis sion in

dismissing their claims based upon the expiration of the statute of limitations. We affirm the action of theClaims Commission. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed
W IL LI AM B. C AIN , J., delive red the o pinion of t

he court , in which P AT RICIA J. C OTT RELL , J ., a nd L. C RAIG J OHNSON , S P . J., joined. Andy L. Allman, Hendersonville, Tennessee, for the appellants, Joanne Johnson, Ronnie Brown and Tonya B ailey.
Paul G. Summers, Attorney Gene ra l & Reporter; Michael E. Moore, Solicitor General, and Sara h T. Chambers, for the appellee, State of Tennessee

. OPINION Claimants, Ronnie Br

own, JoAnne

Johnson, Ton

ya Bail ey, Brianna Pitts and B ri tt an y Ba il ey, were injured in an automobile accident on November 8, 2000, which occurred on Inte rstate Highway 40 in Nashville, Davidson County, Tennessee . On November 7, 2001, Claimants brought suit in the Circuit Co ur t o f D av id so n C ou nt y, Tennessee against “Sy lvia Burtts, Department

of Transportation, Stateof Tennessee, Tennessee Claims Commission, and Shawn Bailey .” This suit alleged that the Claimants were a

ll passen gers in

an automo

bile drive n by Defend ant Bur

tts on I nterstat e 40 in Nashville, with the vehicle having been rented by Defendant Bailey

and ent rusted t o Defendant Burtts. It was further alleged that, at th e time of t he acci dent in the

lateevening hours of November 8, 2000, it was raining hard and standing wate r pooled on port ions of the ro adway. B urtts was charged with neg ligenc e in the op eration of the ve hicle, a nd the Stat

e of Ten nessee w as char

ged wit h negligence

in failing to properly maintain dra

ins and otherwise prevent standing water fr om pooling on th e r oa dw ay.1 Itis ass ert ed by Appellants that the Am end ed C omp laint was filed as a ma tter of righ t unde r Te nnesse e Ru le

of CivilProcedure 15.01 si nce no respons ive pl eading had been fil ed and th e pro ceed ings in both the circuit court and the Te nnesse e Cla ims C omm ission ar e gov erned by the T enne ssee R ules of C ivil Pro ced ure. See Tenn. Code Ann. § 9-8-4 03. -2- This complaint was filed in the circuit court on November 7, 2 001, a nd on th at sa me da y, processwas properly

served on the Claims Commission of the State of Tenness ee. While

this circuit court action wa s pending , on Dece mber 18, 2 001, Pla

intiffs f il ed a cla

im “I n The Clai ms Commission For Tennessee At Nashville” which was styled “AmendedComplaint.” This Amended Complaint purported to amend the Nove mber 7, 20 01 Compla

int that wa s filed in the Davidson County Circuit Court. T he Amended Complaint is almost a verbatim repetition of the Complaint filed in th e circu it court. 1
On March 20, 2002, pursuant to Tennessee Code Annotated section 9-8-402(c), the Division of Claims Administration transferred the claim to the Te n nessee Claims Commission. On March 26, 2002, the Attorney Ge neral of Tenness ee filed , on beha lf of the Sta te of Ten nessee, a Motion to D ismiss the claim because it was barred by the applicable statute of limitations. In suppor t of it s Motion to Dismiss, the Attorney General a sserted:

The Constitution

of the Sta

te of Ten nessee p rovides t hat “[s]uits ma y b e brought agains t the State

in such manner and in

su ch co ur ts as th e Le gi sl at ur e m ay, by law, direct.” Tenn. Const. Art. I, Sec. 17. Statutes passed by the leg islature which permit suits ag ainst

the State are in derogation of the State’s inhere nt exemption from suit, must be strictly construed, and jurisdiction granted under such statutes cannot be enlarged by

implication. Beare Co. v. Olsen , 711 S.W.2d 603 ( Tenn. 1986). Thus , where th e State ha s grant ed author ization thr

ough the Genera l Assembly

to bring suit against the State, such suits may only be broug

htin those courts and under those conditions specified by the Ge neral Assembly. Crow v. John W. Harton Memorial Hospital , 579 S.W.2d 888 (Tenn. Ct. App. 1979). The Claims Commission Act, passed by the legislature and allowing for

suits agains tthe State, specifically bars claims against the State unless wri tte n notice i s givento the Division of Claims Administration within the appropriate statute of limitations period relative to the particular cause of a ction. Tenn. Code Ann. § 9-8- 402(a) and (b). This claim for personal injuries is a personal tort action and, thus, is subject to a one ye ar statute of limitations. See Tenn. Code Ann. § 28-3-104(a). Accord in g to the Claimants’ complaint, styled Amended Complaint, the ac cide ntgiving rise to their cause of action occurred on November 8, 2000. However, a claim was not filed with the Division of Claims until December 18, 2001. See Amended

Complaint. Thus, the

claim wa s file d 4 0 days past the expiration of the applicable statute of limitations and is statutorily time barre d. Therefore, the State of Tennessee respectfully moves for this action to be dismissed.2 Co ope r v. Ru therfo rd C oun ty , 531 S.W .2d 783, 785 (Tenn. 1975 )(Henry dissenti ng). -3- Claimants countered with anassertion that the copy of the c ircuit court Complaint, admittedly served on the State of Tennessee Claims Com mi ssion on November 7, 2001, within the statute of limitations, was adequate “notice” under Tennessee Code Annotated section 9-8-402(a).
In sustaining the Motion to Dismiss, the Commissioner held: “This Commission finds that the papers served on

this Commission’s Clerk in November 2001 were not reasonably written to give anynot ice to anybody

- - the Attorney

General, the Transportation Department, the Tr easury Departm ent, th e C la im s C om mi ss io n, an ybo dy - - of any proce

eding before this Commission; . . .” Claimants timely appealed.
This Court cannot, witho ut judiciall y legislat ing, sav e this ca se from th

e statute of limitati ons.
In the 27 yea

rs that have ela

psed sinc e Justice H enry , in his elo quent and ency clopedic dissent, decried governmental immunity as a “cankered, corroded, and corrupted area of our law,” 2 the appellate courts of

Tenness ee have

repeat edly reempha sized that g overnme ntal immunity in

this state is not of common law origin but rather of constitutional and statutory origin. Jo ne s v . L & N R.R. Co. , 617 S.W.2d 164 (Ten n. Ct. App. 1981); Austin v. C ity of Mem phis , 684 S.W.2d 624 (Tenn. Ct. App. 1984); Brown v. St ate , 783 S.W.2d 567 (Tenn. Ct . App. 198 9); Sweeney v. State Dep’t of Trans. , 744 S.W.2d 905 (Tenn. Ct. App. 1987). As a logical and necessary corollary to such r

ule, statutes permitting suits against the state and suits against cities a nd countie s as arms o f the stat e must be strictly construed, a

nd jurisdiction cannot be enlarged by implication. Beare Co. v. Olson , 711 S.W.2d 603 ( Tenn. 198 6); Griffith Motors, Inc. v. King , 641 S.W.2d 200 (Tenn. 1982); Stokes v. Univ. of Tenn. , 737 S.W.2d 545 (Ten n. Ct. App. 1987); Yokley v. S tate , 632 S.W.2d 123 (Tenn. Ct. App.1981). In addressing the

same factual situation as is involved in the case at bar, this Court applied the strict construction rule in Brown v. State, sup ra . In that case, the cla imant had been injured on May 4, 1987 in a

vehicle collision with an aut

omobile owned by the Unive

rsity of Tennessee. On April 8, 1988, she filed her complaint in the Circuit Cou rt of Knox County

agains t the Unive

rsity of Tennessee. She did not, however, file her claim with the Division of Claims Administration of the State of Tennessee until July 20, 1988, more than one y ear after the accident

. Her claim was transferred

to the Claims Commission on Octobe

r 25, 1988 where, since she had volun

tarily di smissed her Knox County Circuit Court case on September 1, 1988, without prejudice , sh e atte mp ted to claim the benefit of the saving statute, Tennessee Code Annotated section 28-1-105. In holding the saving statute to be inapplicable and the Knox County Circuit proceeding ineffective to toll the statute of limitations, this Court held:

There is no showing that plaintiff ever had an y righ t to sue the State of Tennessee in the Ci

rcuit Court of K

nox County . The only

right of this plaint

iff to seek redress from the State is found in the Tennessee Cla

ims Administ

ration Act, quoted above, w

hich req uires not ice of c laim to be f

iled with the Divisi on of Claim s-4-

Admin istration within the time provided by statute of limitation (1 y ear). There i s no showing

that a cla im was filed with the D ivision of C laims Admin istration within the one yea

r period of limitation. The time for pursuing a remedy against the State can be

extended neither by filing an unauthorized suit in an unau

thorized f orum, nor by t he applic ati on of th e “Savings Statute” which does not specifically apply to claims ag ainst the State.
Brown , 783 S.W.2d at 572.
In Locust v. State of Tennessee , pro s e plaintiff filed a legal malpractice action against an assistantpublic defe nder in the Circuit Court of Dye r County, Tennessee . The suit alleged malpractice in legal representation that occurred at a motion hearing of June 29, 1 993. The c ircuit court action was timely filed within one y ear after June 29, 1993, and, on August 12, 1994, the court entertained

the defendant’s motion to dismiss for lack of subject ma

tter juri sdiction. Pro se

plaintiff then filed a motion to transfer the case to the Tennessee Claims Commission pursuant to Tennessee Code Anno tated se ction 9-8 -307, whi ch provid ed, in par t: (i)(1) Claims that

were tim ely filed with a court of competent jurisdiction and that fall within the jurisdiction of the claims commission found in subsection (a) may be transferred to the divisi on of cl ai ms ad mi ni st ra ti on by agreement of the parties and the consent of the attorney general and reporter

and upon such transfer, shall be considered

timely filed with the division of claims ad ministrati on. Such transfer shall be effec ted by fili

ng with the d

iv i sion of cla ims admini

stration the

parties’ agreement

and the complaint which is the s ubject of th e agreement . Such cla ims shallbe consid

ered by the divisio n of claims administ ration a nd the cla

ims commission, as provided by law , even if the court retains jurisdiction over the claim

. (Emphasis added).
Locu st v. State , 912 S.W.2d 716, 717-18 (Tenn. Ct. App. 1995)(quoting Tenn. Code Ann. § 9- 8

- 307).
The state asserted that the Circuit Court of Dyer Co un ty was not a “court of competent jurisdiction” within the meaning of the statute and, further, that the state did not agree to transfer the case to the Claims Commission under the statute. Faced with a statutory c onstruction question that would render a provision o f the s tatute me aningle ss, since construction urg ed by

the state would necessa rily result in no court being a court of competent jurisdiction, this Court held that “a ‘cour t of compete nt jurisdiction’ is a c ourt in whi ch a cla ima nt could

have maintained an action for monetary judgment if the state had been a private individual.” Locust , 912 S.W.2d at 718. As to the second ground of the motion by the state, this Court held: Since, however , the cour t did not tra

nsfer the case t

o the divis ion of th e claims commission

because of a failure to meet the criteria of T.C.A. § 9-8-307(i)(1)-5-

fortransfer, the appellant cannot rely upon the filing of the complaint in the Dye r County Circu i t Court to toll the running of the statute of limitations. It is clear, the refore, that the statut

e of limita

tions had e

xpired prio

r to the fi ling of t

he claim with the division of claims administration.
Id. at 718.
The strength of Locust

on this latter point was legislatively diminished by Chapter 785 of the Public Acts o f 1 998, which repealed the languag e in Tennessee Code Annotated section 9-8- 307(i )(1) an d ins erted i n its place t he pres ent st atuto ry language p rovid ing:

(i)(1) Claims that were timely f iled against a state employee with a court of competent

jurisdiction and that fall within the jurisdiction of the cl aims commission found in subsection (a)(1)(A) shall be dismissed a s to the state employee a nd transferred

to the division of

claims administration to proceed as a claim against the state; provided, that the state employee alleged to have acted neglig ently

was, at the time of the inc ident gi ving ris e to the cl aim, o perati ng a private motor veh

icle with in the scope of

the e mployee’s off

ice or employment, a

nd the employee’ s action or inaction was not willful, malicious, c rimi nal or done for personal gain. When a motion for

transfer is made, the court shall require that notice be given the attorney general and reporter and

the state shallbe permitted to intervene and respond to the motion. Upon such transfer, the claim shall be considered timely filed with th e division of claimsadministration and the claims commission. Such transfer shall be effected upon an order of dismissal and transfer from the court. Any such transf

er must be made within one ( 1) y ear of t he filing of th e original complaint with the court or on or after

April 22, 19 98, whichever is later. Such claims shall be considered

by the division of claims administration and the claims commission, as pro vided by law. This subsection shall be ef fective for causes of action ar isin g o n or after July 1, 1995, pending on or after April 22, 1998, and cause s of action arising on or after April 22, 1998.
Tenn. Code Ann. § 9-8-307 (i)(1)( 2002). I n the cas e at bar , even if Tenness e e Code Anno tated section 9-8-307(i)(1) could be applicable, the procedures set forth therein have not been followed.
The position of Claimants is intriguing. It is true tha t the proc ess issuing

from the C ircuit Courtof David son County on Novemb er 7, 200 1, and, in fact, served upon the Claims Commission on that same date, provided notice of the facts in t he Complaint and noti ce that a claim was being filed, albeit in a

court not compete nt to adjud

icate any issue. This same situation, howeve r, was true in both Brown v. State

and Locust v. S

tate , though neither opinion indicates an assertion that such notice was sufficient under Tennessee Code Annotated section 9-8-402(a). If , however, Tennessee Code Annotated section 9-8-402(a) an d (b ) or section 9-8-307(i)(1) are to be stre tched in the face of the stric t constru ction rule of Brown v. St

ate , such must be accomplished by hig her authority than this intermediate appellate court. In re: Ke rby’s Est ate , 354 S.W.2d 814 (Tenn. Ct. App. 1961).-6-

The judgmen

t of the Cla

ims Commiss ion is affirmed, and the case is remanded f or such fu rt he r p ro ce ed in gs as ma y be ne ce ss ar y. Costs of the cause are assessed ag ainst Appellant.

___________________________________ WILL IAM B. CAI

N, JUDGE