# FILED
Novemb er 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JOSEPH JON

ES, ) Davidson Chancery ) No. 96-71 7-II Plaintiff/Appellee, ) ) VS. ) ) LINDA RUDOLPH, COMMISSIONER, ) TENN ESSE E DEPAR TMENT OF ) Appeal No. HUMAN SER

VICES, ) 01A01-9611-CH-00513 ) Defendant/Appellant. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM C HANCERY C OURT OF DAVIDSON C OUNTY

AT NASHVILL E, TENNESSEE HONORABLE C AROL L. Mc COY, CHAN CELLOR

John Knox Walkup Attorney Gene

ral & Reporter Sue A. Sheldon #152295 Assistant Attorney Gene

ral 1510 Parkway Tow ers 404 James Robertson Parkway ATTORNEYS FOR DEFENDANT/APPEL LANT Nor man B. F eas ter , II Legal Servic es of South Central TN, Inc. P.O. Box 1293 Tullahoma, TN 37388 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE 

### REVERSED AN

D REMANDED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE WILL IAM B. CAI

N, SPECIAL JUDGE-2-

JOSEPH JON

ES, ) Davidson Chancery ) No. 96-71 7-II Plaintiff/Appellee, ) ) VS. ) ) LINDA RUDOLPH, COMMISSIONER, ) TENN ESSE E DEPAR TMENT OF ) Appeal No. HUMAN SER

VICES, ) 01A01-9611-CH-00513 ) Defendant/Appellant. )



## O P I N I O N
The Trial Cou rt and this Co urt have granted interlocutory appeal from an order overruling the motion of the Commissioner of Human Services to dismiss the petition of Joseph Jones for judicial review of an administrative decision of the Commissioner.

ADMINISTR ATIVE PROCE EDINGS On Decemb er 4, 199 2, the ca ptioned pl ain tiff filed with the Tennessee Department of Human Services an application for Medicaid benefits. Ultimately, a “conte sted case” reached the Commissioner of Human Services who, on January 24, 1994, entered a final order deny ing the requ ested be

nefits.

TRIAL COUR T PROCEEDIN GS On March 23, 1994, within 90 days a fter the entry

of the final administrative order, plaintiff filed in the Trial Court his first complaint for judicial review under

Trial Court number 94-864-I which indicates that the ensuing proceedings took place in Part I of the Cha

ncery Court. The record of the administrative agency was filed with that Trial Court on November 2, 1995.

On March 3, 1995, that Trial Court entered an orde r dismissi ng case number 94-864-I for failure to prosecute as required by local rules and affirming the decision of

the agency . The-3-

order was served upon the plaintiff. The record c ontains no post-judgmen t motion o r order reg ard in g th e fi nal ju dgm ent in cas e nu mb er 9 4-8 64- I.

On March4, 1996, plaintiff filed in Part II of the Chancer

y Court at Na shville un der cas e number 96-717-II , a second petition for judicial review of the same administrat ive ord er. Proce edings under this case number occurred in Part I I of the Chancery

Courtat Nashville under the Chanc ellor of t

hat Court.

On April 16, 1996, the Commissioner moved to dismiss the second petition for review on two gr ounds: 1. The “Savings Stat ute,” (T .C.A. § 28- 1-105) isinapplic able toan actio n again st the State because of sovereign immunity
.

2. The March3, 1995, di smissal of case number 94-864-I was a

n “adjudication on the merits” a

nd therefore did

not qualif

y a s a “judgment or decree a gainst the plaintiff

upon any ground not concluding his right of action,” as described in the Savings Statute.

On June 3, 1996, the Trial Judge sitting in Part II at that time, entered the following order in cas e no . 96 -71 7-II: This case was heard on May 10, 1996, before the Honorab l e Ellen Hobbs Ly le, Chancellor for Davidson Co un ty, Tennessee, on the Motion to Dismiss fi le d b y t he defenda nt, the plaintiff’s response, argument of counsel, and the record as a whole.

- - - - The Court found the plaintiff was not guilty of laches due to his fa ilur e to comply with L ocal Rule 30. The defendant was not pre

judiced by the plaintiff’s noncomp liance, particularly since the case is an appellate-like proceeding based sol ely

on the administrative record, and the savin gs statute, T .C.A. § 28- 1-105, is a ppli cable to the plaintiff’s cas e allowing him to refile his appeal of the defendant’s decision

that deni ed his Med ica id app li cat io n. It is , therefore ORDERED that the defendant’s Motion t o Dismiss is denied.-4- On August 16, 1996, the same Trial Judge entered the f ollo wing or

der in the same
case: This case was heard on August 2, 1996 bef ore the Honorab le Ell en H obb s Ly l e, Chancellor for Davidson Co un ty, Tenness e e, on the Respondent’s motion to reconsider denial of the motio n to dismiss this action, Petitioner’s Response to the motion, arguments of counsel, and the record as a whole. The Respondent adv anced argume nts in support of her motion to reconsider that (1) sovereign immunity barred application of the savingsstatute to actions against the State, (2) that the sa

vings sta tute had no ap

plication where a s in this case Petitioner’s original act

ion w as dismissed on grounds concluding the Petitioner’s right of action and (3) that under the language of Rule 41.02(3 ) of the T.R.A.P. (which provides that “unless the court in i ts orderfor dismissal otherwis e specifies, the dismissal operates as an adjudication on the merits”) the order of dismissal entered by the Court on March3, 1995 , in the Petitioner’s original action, which Or der dismissed the original action, affirm ed th e admini strative agency

decision and assessed costs to the Petitioner and did not “otherwise spe cify ,” under Rule 41.02(3) the Marc

h 3, 1995 or

der of di smissal. In o ppos ition to the

Responde

nt’s motion

to reconsider, the Petitioner

advan ced argu ments that s overei gn immunity did not bar application of the savingsstatute to this case and cited in reliance on his arguments the ca se of Brooksbank

v. Roane C ounty

, 341 S.W.2d 570 (Tenn. 1960). The Court in de

nying the Re spondent’ s motio n t o reconsider

di smissal of this second action ruled that by analo gy Brooksba nk

pr ovided the Court a basis upon which the Court could deny the Respondent’smotion to reconsider. IT I S SO ORDERED. On November 1, 1996, a successor Trial Judge of Par t II entered the following order: T he Respondent has filed an Application for Permission to Appea

l the Orde

r of Aug ust 16, 199 6 which deniedRespondent’s Motion to Di smiss for failure to state a cause of action. The Order o f Augus t 16, 1996 w as writte n by th i s Chancellor’s predecessor

who found tha

t soverei gn immunity does not bar a

pplicatio n of the sa

vings s tatute to U

APA actions filed against the state. This Court r espectf ully disagrees
. The P laintiff filed an administrative appeal on March25, 1994 which was dismissed f or failur e to prosecute on March 3, 1995
. The Plaintiff refiled the same appeal on March4, 1996. The Court considers the Order of August 16,-5- 1996 to have been in error since the Defe ndant State of Tennessee is notsubject to the savings statute, T.C.A. § 28-1- 105 , and further

that the Order of Dismissal dated March 3, 1995 was on the

merits since no moti on to vacate was timely filed. The Court has considered the p ro bability of reve rsal, whether the interlocutory

appeal will result in a net reduction in the duration and expense of the litigation if the challenged Order is rever sed, and

the need to develop a uniform

body of law. It is therefore orde red that the Defendant is granted permission to appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. (Emphasis supplied)
This Court considers the dispositive issue to be the effect of sovereign immunity upon the applicability of the “Saving s Statute” to this case.

In Au tomobile Sa les Co. v. Johnson , 174 Tenn. 38, 122 S.W.2d 453 (1938), suit was brought to recover gasoline taxpaid under protest to the Commissioner of Finance and Taxation within 30 days afte

r payment as re

quiredby statute. Howeve r, this suit was dismissed without prejudic e and renewe d more tha n 30 day s after p ayment. The plaintiff insisted th at the fir st dismissal created a second 30-day window to file suit under Code Section 8572 (now 28-1-105). After discuss ing numerous decisions, the Supreme Court held that the Constitution of Tennes see , Article I, Sec. 17, prohibits suits against the State except as authorized by statute. The suit was dismissed.

Automobil

e Sales Company v. Johnson, supra , also establishedthe rule that a suit agains t a State official in reference to State B usiness is a suit against the State, and said:

“It is a general

rule that the State is not bound by the general words of a statute , which, i f applie d, would op erate to trenchon it s sov ereign rights, injuriousl y a ffect it s capac ity

to perform its functi ons, or es tablish a right of actio n again st it, unless th e c on tr ar y is ex pressly declar ed or nec essarily implied.”
No su bs eq ue nt Te nn es se e A ut ho ri ty i s f ou nd to th e c on tr ar y.-6- IDENTITY OF ACTIONS (Res Judicata) It is clear that only one admin

istrative action is involved in

this dispute, i.e., the denial of disability benefits to the plaintiff on January 24, 1994. Since the

same cla im, the same cla

imant, an d the same

agency a re involv ed, ther

e is su fficient ide ntity of subject matter and parties to support the doctrine of res judica ta which bars a second action on the sam

e claim involving the same parties. Richardson v. Tennessee Board of Dentistry , Tenn. 1995, 913 S.W.2d 446.

It is also cle ar that o nly

one orde r is befo re this Court for review at this time. The order of March 3, 1995, dismissing the first petition for judicial review, has become final withoutappeal, and is not before this Court for review. I t is mentioned only as support for the plea of res judicata to the second petition. The second orde r of August 16, 1996, overruling defendant’s motion to dismiss, is the order which is before this Court for review and it is reversed because the saving s statute is inapplicable because of sover eign im mu ni ty. The third order, entered on November 1, 1996, is only the vehicle whereby this interlocutory appea

l reached this Court, and is not before this Court for review.

The judgment of the T rial C ourt over ruling t he Commissio ner’s mo tion to dismiss is rever sed, and

vacate d. Costs of this appeal are taxed to the plaintiff-appellee. The cause isremanded

to the af fected Trial Cour

ts for fur ther pro ceeding s in confo

rmity with this opinion. 

### REVERSED AN D REMANDED

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

________________________________ BEN H. CANTRELL , JUDGE

________________________________ WILL IAM B. CAI

N, SPECIAL JUDGE-7-