Peggy L. BROWN, Claimant/Appellee, v. STATE of Tennessee, Defendant/Appellant.
Court of Appeals of Tennessee, Middle Section, at Nashville.
Nov. 1, 1989.
Permission to Appeal Denied by Supreme Court Jan. 2, 1990.
As found by the chancellor, not only does the HAP Contract prohibit the reduction of the Contract Rents to an amount less than the Contract Rents on the effective date of the Contract, but the HUD regulations are to the same effect.
Execution of housing assistance payments contract.
(a) Time of execution. Upon PHA acceptance of the unit(s) and certifications pursuant to § 882.507, the Contract will be executed by the Owner and the PHA. The effective date must be no earlier than the PHA inspection which provides the basis for acceptance as specified in § 882.507(e).
(b) Changes from Agreement. The Contract Rents may be higher or lower than those specified in the Agreement in accordance with requirements of
§ 882.408(d) .
For the first time, on appeal to this Court, MDHA raises this, its second, issue:
B. Even if the AHAP does survive the HAP Contract, whether the Supremacy Clause of the United States Constitution requires that Tennessee contract law be suspended so that the congressional intent that rental adjustments be made shall be preserved?
By this issue MDHA attempts to seek relief under the Supremacy Clause of the U.S. Constitution.
First of all, we believe that in essence MDHA in its oral argument before this Court MDHA waived this issue. Nonetheless, we hasten to point out that in our opinion, this issue is without merit. First of all, we have concluded that AHAP does not survive the HAP Contract, but that HAP Contract is the controlling and only Contract. We find no existence of any Tennessee law that should be superseded by federal law, for the federal law in the form of federal regulations, the CFR, includes the same prohibition against the reduction of rents to an amount less than the rents on the date of the Contract as found in the Contract itself. We find no basis for an insistence that a Supremacy question is involved and accordingly hold that this issue is without merit.
Accordingly, the decree of the chancellor below is in all matters and things affirmed. Costs in this cause are taxed to MDHA, for which execution may issue if necessary.
FARMER, J., and NEARN, Ret. J., concur.
Karen E. Holt, Knoxville, Asst. Gen. Counsel, for defendant-appellant.
OPINION
TODD, Presiding Judge.
The State of Tennessee has been granted permission for this interlocutory appeal from an order of the Claims Commission overruling the State‘s motion to dismiss.
On July 20, 1988, claimant filed her complaint with the Division of Claims Administration, alleging that she was injured on or about May 4, 1987, in a collision involving a vehicle leased to and being used on the business of the University of Tennessee.
Upon transfer of the claim to the Tennessee Claims Commission, the State moved to dismiss on the ground that the statute of limitations,
- Notice of Voluntary Dismissal of the Suit of Peggy L. Brown vs. Kenneth J. Baker, et al. The notice is dated September 1, 1988, and is captioned: “In the Circuit Court for Knox County, Tennessee“. The document is marked “Exhibit A“, but bears no certification or indicia of filing in said Court or with the Commission.
- Answer of Defendant, The University of Tennessee, to Plaintiff‘s Complaint, captioned in the same Court, is marked “Exhibit B” and likewise is devoid of any certification or filing date.
A copy of an opinion of this Court in another case, marked Exhibit C, but bearing no certification or filing data. - A copy of an opinion of the U.S. Court of Appeals marked Exhibit D, but bearing no certificate or indicia of filing with the Commission.
On November 15, 1988, plaintiff filed “Plaintiff‘s Response to Defendant‘s Motion to Dismiss.” In said response, it is stated that:
The plaintiff originally filed a Complaint in the Circuit Court of Knox County, Tennessee on April 8, 1988, less than one year from the date of the collision which was on May 4, 1987 ... Named as defendants in that lawsuit were the University of Tennessee, the State of Tennessee, and Kenneth Baker, the employee of the State of Tennessee, who was operating the vehicle at the time of the collision. On April 18, 1988, service of the Summons and Complaint in that lawsuit was obtained upon Jan Hicks as agent of the University of Tennessee ... The plaintiff subsequently entered a Non-Suit without prejudice in response to a Motion to Dismiss filed by the University of Tennessee based upon
T.C.A. § 9-8-301 et. seq. , which is the legislation creating the Claims Commission. On July 22, 1988, while the Circuit Court case was still pending, a claim was filed with the Division of Claims Administration for the State of Tennessee. Although that claim was not filed within one year from the date of the plaintiff‘s injury, the plaintiff respectfully submits that her claim should not be dismissed because she did file the claim before her voluntary Non-Suit was filed and, therefore, her claim should be saved byT.C.A. § 28-1-105 , which is commonly known as the “savings statute“.
Following said response in the record is an unfiled document purporting to be a copy of a return of service of summons by mail.
Following said document in the record is a “Memorandum in Support of Plaintiff‘s Response to Defendant‘s Motion to Dismiss.” Following said memorandum in the record are 15 pages of unfiled copies of appellate opinions.
Following said pages are “Plaintiff‘s Second Response to Defendant‘s Motion to Dismiss” and “Defendant‘s Reply to Plaintiff‘s Response to Motion to Dismiss.”
Following said pleadings in the record is a copy of an opinion of this Court.
This Court is somewhat at a loss to discern precisely what, if any, of the foregoing is properly before this Court.
It appears that the original motion to dismiss required no supporting evidence, for it was based upon the allegations of the complaint, the statute of limitations, the statute creating the board of claims and the date of filing the claim.
On the other hand, the plaintiff appears to resist the motion to dismiss on the basis of facts extraneous to this record, to wit, the timely filing of a suit against the University of Tennessee and the dismissal of said suit under circumstances which are included in the “Saving Statute“,
Nevertheless, the briefs treat certain facts as having been shown by competent evidence.
The Statement of Facts in appellant‘s brief states:
This case arises out of a claim for damages incurred as the result of a collision involving a vehicle operated by plaintiff and a vehicle operated by a University of Tennessee employee on or about May 4, 1987. Plaintiff initially filed a suit against the State and others on April 8, 1988, in Knox County Circuit Court, which the University moved to dismiss for lack of jurisdiction. That case was ultimately nonsuited on September 1, 1988. Plaintiff, in the meantime, filed a claim with the Division of Claims Administration on July 20, 1988, which was over a year after the accident occurred. Such claim was transferred to
The State moved to dismiss the Claims Commission action pursuant to Rule 0310-1-1-.12(2)(a) of the Tennessee Claims Commission on the ground that the Commission lacked subject matter jurisdiction. (R. 17). The basis for the State‘s motion was that the claim was filed outside the one year statute of limitations,
The Claims Commission for the Middle Section, Honorable Richard Rucker, Commissioner, denied the motion to dismiss by order entered February 17, 1989. (R. 81).
The State moved the Claims Commission for permission to appeal the Commission‘s interlocutory ruling denying the State‘s motion to dismiss. (R. 84). The motion was granted by order entered March 22, 1989. (R. 88). The State then applied to this Court for permission to appeal the interlocutory order, which was granted on April 20, 1989. (R. 90).
It is the State‘s contention that
The appellee‘s brief states:
The appellee adopts by reference the statement of the facts as stated on pages two and three of the brief of the appellant with the exception of the appellant‘s argument in the last paragraph of the Statement of Facts on page three.
The order of the Commission finds the following facts:
The claimant‘s injury occurred on May 4, 1987.
Claimant filed a circuit court action against the University of Tennessee on April 8, 1988.
Claimant filed a claim with the Division of Claims Administration on July 20, 1988.
The circuit court action was voluntarily dismissed on September 1, 1988.
The claim was transferred from the Division of Claims Administration to the Claims Commission on October 25, 1988.
The Commission overruled the motion to dismiss, and the State appealed by permission presenting two issues, as follows:
I. Does
T.C.A. § 28-1-105 apply to extend the time for filing suit against the State?II. If
T.C.A. § 28-1-105 is applicable to the State, is it applicable to claims brought pursuant to the Tennessee Claims Commission Act?
Claims against the State are authorized by
Claims.—(a) The claimant must give written notice of his claim to the division of claims administration as a condition precedent to recovery....
(b) The claim is barred unless the notice is given within the time provided by statutes of limitation applicable by the courts for similar occurrences from which the claim arises....
The applicable statute of limitations is
Plaintiff concedes that no claim was filed with the Division of Claims Administration within one year after her injury. However, plaintiff asserts that her suit, filed in the Circuit Court for Knox County Tennessee against Kenneth J. Baker and others constituted a compliance with
New action after adverse decision—(a) If the action is commenced within the time limited by a rule or statute of limita-
tion, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest....
The statute is silent as to the time of extension, if any, after dismissal, however, this omission in the statute is not argued by the parties and is expressly pretermitted in this decision.
Appellant first asserts that
Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.
This section, being in derogation of the State‘s sovereign privilege of exemption from suit, must be strictly construed. State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858 (1937).
The State, as sovereign, is immune from suit except as it consents to be sued. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777 (1965).
The rule of sovereign immunity in Tennessee is both constitutional and statutory. It is not within the power of the courts to amend it. Austin v. City of Memphis, Tenn.App.1984, 684 S.W.2d 624.
A statute permitting suit against the State must be strictly construed, and jurisdiction cannot be enlarged by implication. Stokes v. University of Tennessee, Tenn.App.1987, 737 S.W.2d 545, cert. den. 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988), Sweeney v. State Dept. of Transportation, Tenn.App.1987, 744 S.W.2d 905.
As heretofore pointed out, the Legislature has provided the manner and forum for seeking compensation from the State for injury by State employees, i.e., a claim must be filed with the Division of Claims Administration within one year after the accrual of the cause of action. The claim was not filed within one year, but the plaintiff claims the benefit of
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.
....
Not only, as heretofore shown, is it held that general procedural statutes are not held to apply to a State unless expressly so provided, but the procedural statute, Code, Section 8572 [predecessor to
§ 28-1-105 ], herein invoked has application to statutes of limitation of a general nature which relate to the remedy only, whereas we have here a statute which expressly provides a condition precedent, compliance with which is essential in order to confer jurisdiction.
Where legislation permits relief against the State, the conditions prescribed by such statute must be strictly construed, and jurisdiction to grant such relief cannot be enlarged by implication. Beare Co. v. Olsen, Tenn.1986, 711 S.W.2d 603, Crowe v. John W. Harton Memorial Hospital, Tenn.App.1979 579 S.W.2d 888.
The right of plaintiff in the present case is statutory and not constitutional. It is therefore subject to the rule in Automobile Sales Co. v. Johnson.
There is no showing that plaintiff ever had any right to sue the State of Tennessee in the Circuit Court of Knox County. The only right of this plaintiff to seek redress from the State is found in the Tennessee Claims Administration Act, quoted above, which requires notice of claim to be filed with the Division of Claims Administration within the time provided by statute of limitation (1 year). There is no showing that a claim was filed with the Division of Claims Administration within the one year period of limitation.
The time for pursuing a remedy against the State can be extended neither by filing an unauthorized suit in an unauthorized forum, nor by the application of the “Savings Statute” which does not specifically apply to claims against the State.
The action of the Claims Commission is reversed. Costs of this appeal are taxed against the appellee. The cause is remanded to the Claims Commission for a disposition consistent with this opinion.
Reversed and remanded.
LEWIS, J., concurs.
KOCH, J., concurs in separate opinion.
KOCH, Judge, concurring.
I concur with the majority‘s conclusion that Peggy Brown‘s claim against the State of Tennessee must be dismissed.
State law imposes two conditions on persons desiring to pursue a claim against the State of Tennessee.
Each of these conditions serves an important purpose and is mandatory. Like other statutes of limitations,
The Division of Claims Administration did not receive Ms. Brown‘s claim until over a year after the accident, and there is no independent evidence that the Division knew or should have known about the existence of the claim. Accordingly, I would find that Mrs. Brown‘s claim could not pass muster under