FILED

November 14, 1997

Cecil W. Crowson

Appellate Court Clerk

JOSEPH JONES, ) Davidson Chancery

) No. 96-717-II

Plaintiff/Appellee, )

)

VS. )

)

LINDA RUDOLPH, COMMISSIONER, )

TENNESSEE DEPARTMENT OF ) Appeal No.

HUMAN SERVICES, ) 01A01-9611-CH-00513

)

Defendant/Appellant. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

HONORABLE CAROL L. McCOY, CHANCELLOR

John Knox Walkup

Attorney General & Reporter

Sue A. Sheldon #152295

Assistant Attorney General

1510 Parkway Towers

404 James Robertson Parkway

ATTORNEYS FOR DEFENDANT/APPELLANT

Norman B. Feaster, II

Legal Services of South Central TN, Inc.

P.O. Box 1293

Tullahoma, TN 37388

ATTORNEY FOR PLAINTIFF/APPELLEE

REVERSED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

WILLIAM B. CAIN, SPECIAL JUDGE
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JOSEPH JONES, ) Davidson Chancery

) No. 96-717-II

Plaintiff/Appellee, )

)

VS. )

)

LINDA RUDOLPH, COMMISSIONER, )

TENNESSEE DEPARTMENT OF ) Appeal No.

HUMAN SERVICES, ) 01A01-9611-CH-00513

)

Defendant/Appellant. )

O P I N I O N

The Trial Court and thisCourt 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.

ADMINISTRATIVE PROCEEDINGS

On December 4, 1992, the captioned plaintiff filed with the Tennessee Department of

Human Services an application for Medicaid benefits. Ultimately, a “contested case” reached

the Commissioner of Human Services who, on January 24, 1994, entered a final order denying

the requested benefits.

TRIAL COURT PROCEEDINGS

On March 23, 1994, within 90 days after 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 Chancery 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 order dismissing case number 94-864-I

for failure to prosecute as required by local rules and affirming the decision of the agency. The
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order was served upon the plaintiff. The record contains no post-judgment motion or order

regarding the final judgment in case number 94-864-I.

On March 4, 1996, plaintiff filed in Part II of the Chancery Court at Nashville under case

number 96-717-II, a second petition for judicial review of the same administrative order.

Proceedings under this case number occurred in Part II of the Chancery Court at Nashville under

the Chancellor of that Court.

On April 16, 1996, the Commissioner moved to dismiss the second petition for review

on two grounds:

1. The “Savings Statute,” (T.C.A. § 28-1-105) is inapplicable to an action against

the State because of sovereign immunity. 

2. The March 3, 1995, dismissal of case number 94-864-I was an “adjudication on

the merits” and therefore did not qualify as a “judgment or decree against 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 case no. 96-717-II:

This case was heard on May 10, 1996, before the

Honorable Ellen Hobbs Lyle, Chancellor for Davidson

County, Tennessee, on the Motion to Dismiss filed by the

defendant, 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 failure to comply with Local Rule 30. The

defendant was not prejudiced by the plaintiff’s noncompliance, particularly since the case is an appellate-like

proceeding based solely on the administrative record, and the

savings statute, T.C.A. § 28-1-105, is applicable to the

plaintiff’s case allowing him to refile his appeal of the

defendant’s decision that denied his Medicaid application. It

is, therefore ORDERED that the defendant’s Motion to

Dismiss is denied.
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On August 16, 1996, the same Trial Judge entered the following order in the same

case:

This case was heard on August 2, 1996 before the

Honorable Ellen Hobbs Lyle, Chancellor for Davidson

County, Tennessee, on the Respondent’s motion to reconsider

denial of the motion to dismiss this action, Petitioner’s

Response to the motion, arguments of counsel, and the record

as a whole.

The Respondent advanced arguments in support of her

motion to reconsider that (1) sovereign immunity barred

application of the savings statute to actions against the State,

(2) that the savings statute had no application where as in this

case Petitioner’s original action was 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 its order for dismissal

otherwise specifies, the dismissal operates as an adjudication

on the merits”) the order of dismissal entered by the Court on

March 3, 1995, in the Petitioner’s original action, which

Order dismissed the original action, affirmed the

administrative agency decision and assessed costs to the

Petitioner and did not “otherwise specify,” under Rule

41.02(3) the March 3, 1995 order of dismissal.

In opposition to the Respondent’s motion to

reconsider, the Petitioner advanced arguments that sovereign

immunity did not bar application of the savings statute to this

case and cited in reliance on his arguments the case of

Brooksbank v. Roane County, 341 S.W.2d 570 (Tenn. 1960).

The Court in denying the Respondent’s motion to

reconsider dismissal of this second action ruled that by

analogy Brooksbank provided the Court a basis upon which

the Court could deny the Respondent’s motion to reconsider.

IT IS SO ORDERED.

On November 1, 1996, a successor Trial Judge of Part II entered the following order:

The Respondent has filed an Application for

Permission to Appeal the Order of August 16, 1996 which

denied Respondent’s Motion to Dismiss for failure to state a

cause of action.

The Order of August 16, 1996 was written by this

Chancellor’s predecessor who found that sovereign immunity

does not bar application of the savings statute to UAPA

actions filed against the state. This Court respectfully

disagrees. The Plaintiff filed an administrative appeal on

March 25, 1994 which was dismissed for failure to prosecute

on March 3, 1995. The Plaintiff refiled the same appeal on

March 4, 1996. The Court considers the Order of August 16,
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1996 to have been in error since the Defendant State of

Tennessee is not subject 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 motion to vacate was timely

filed. The Court has considered the probability of reversal,

whether the interlocutory appeal will result in a net reduction

in the duration and expense of the litigation if the challenged

Order is reversed, and the need to develop a uniform body of

law. It is therefore ordered 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 “Savings Statute” to this case.

In Automobile Sales Co. v. Johnson, 174 Tenn. 38, 122 S.W.2d 453 (1938), suit was

brought to recover gasoline tax paid under protest to the Commissioner of Finance and Taxation

within 30 days after payment as required by statute. However, this suit was dismissed without

prejudice and renewed more than 30 days after payment. The plaintiff insisted that the first

dismissal created a second 30-day window to file suit under Code Section 8572 (now 28-1-105).

After discussing numerous decisions, the Supreme Court held that the Constitution of Tennessee,

Article I, Sec. 17, prohibits suits against the State except as authorized by statute. The suit was

dismissed.

Automobile Sales Company v. Johnson, supra, also established the rule that a suit against

a State official in reference to State Business 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, if applied, would operate to

trench on its sovereign rights, injuriously affect its capacity to

perform its functions, or establish a right of action against it,

unless the contrary is expressly declared or necessarily

implied.” 

No subsequent Tennessee Authority is found to the contrary.
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IDENTITY OF ACTIONS (Res Judicata)

It is clear that only one administrative action is involved in this dispute, i.e., the

denial of disability benefits to the plaintiff on January 24, 1994. Since the same claim,

the same claimant, and the same agency are involved, there is sufficient identity of

subject matter and parties to support the doctrine of res judicata which bars a second

action on the same claim involving the same parties. Richardson v. Tennessee Board of

Dentistry, Tenn. 1995, 913 S.W.2d 446.

It is also clear that only one order is before this Court for review at this time. The

order of March 3, 1995, dismissing the first petition for judicial review, has become final

without appeal, and is not before this Court for review. It is mentioned only as support

for the plea of res judicata to the second petition. The second order 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 savings statute is inapplicable because of sovereign

immunity. The third order, entered on November 1, 1996, is only the vehicle whereby

this interlocutory appeal reached this Court, and is not before this Court for review.

The judgment of the Trial Court overruling the Commissioner’s motion to

dismiss is reversed, and vacated. Costs of this appeal are taxed to the plaintiff-appellee.

The cause is remanded to the affected Trial Courts for further proceedings in conformity

with this opinion.

REVERSED AND REMANDED

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

________________________________

BEN H. CANTRELL, JUDGE

________________________________

WILLIAM B. CAIN, SPECIAL JUDGE
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