Lisa Womble v. State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 16, 2013 Session

LISA WOMBLE v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission for Eastern Division

No. T20120068 William O. Shults, Commissioner

No. E2012-01711-COA-R3-CV - Filed July 3, 2013

A nurse whose employment at the University of Tennessee Regional Memorial Medical

Center was terminated by the hospital brought a complaint against the State, alleging, inter

alia, breach of contract and negligent deprivation of her property right to her position as a

career state employee. The Claims Commission, William O. Shults, Commissioner,

dismissed the claims, concluding that the Commission was without subject matter

jurisdiction. The nurse appealed. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission

Affirmed; Case Remanded

T HOMAS R. FRIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.

S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined.

George T. Underwood, Jr., Knoxville, Tennessee, for the appellant, Lisa Womble.

Brian A. Lapps, Jr., Deputy General Counsel, The University of Tennessee; Michael D.

Fitzgerald, Assistant General Counsel, The University of Tennessee; and Robert E. Cooper,

Jr., Attorney General and Reporter, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

The appellant, Lisa Womble, is a registered nurse who began working for the

University of Tennessee Regional Memorial Medical Center (“UT Hospital”) in Knoxville

in June 1988, directly after her graduation from nursing school. She was an operating room

nurse throughout her twenty-two-year career at UT Hospital. That career ended when her

employment was terminated on July 19, 2010. UT Hospital alleged in a termination letter

to Ms. Womble that she had abandoned her work responsibilities for part of her shift on

January 11, 2010, and that “a continuing pattern of patient safety issues, policy violations,

customer satisfaction and behavioral issues” had followed. Ms. Womble’s supervisor at the

time of her termination was Thomas Fields, the Administrative Director of Surgical Services.

Ms. Womble denies the allegations contained in the termination letter. She claims that she

was unfairly targeted after she became ill at work on January 11, 2010, and took medical

leave from that date through March 29, 2010.

When Ms. Womble began working at UT Hospital, it was owned and managed by the

State of Tennessee through the University of Tennessee (“University”). In July 1999, the

University executed a Lease and Transfer Agreement by which it transferred operation of UT

Hospital to University Health System, Inc. (“UHS”), a private, non-profit corporation. The

Lease and Transfer Agreement was executed pursuant to Tennessee Code Annotated § 49-9-

112 (Supp. 2012), enacted by the Tennessee General Assembly effective May 11, 1998. This

law, commonly referred to as the “Enabling Statute,” states in pertinent part:

(a) The University of Tennessee is expressly authorized to lease employees to

any nonprofit corporation created under Tennessee law for the purpose of

operating a hospital with which the university is affiliated through its medical

education programs. Employees leased under the authority of this section shall

remain eligible for all university benefits for which they are otherwise eligible

and shall be subject to termination, layoff, suspension or demotion only in

accordance with university personnel policies and procedures.

Contemporaneously with the Lease and Transfer Agreement, the University and UHS

executed an Employee Services Agreement (“ESA”), by which they agreed that existing UT

Hospital employees would be leased by UHS from the University. New employees would

be hired as UHS employees only. As a UT Hospital employee hired several years before the

transfer, Ms. Womble became an employee leased by UHS and remained so until her

employment was terminated.

Pursuant to the ESA, the respective leased employees retained their eligibility for the

state retirement program and their access to the grievance and appeals process afforded to

employees of the University. The following sections of the ESA are especially pertinent to

the process applicable to Ms. Womble’s appeal of her termination:

1.4 Personnel Policies and Procedures. The following personnel

policies will be applied: (a) As described in Tenn. Code Ann. §49-9-112, and

only to the extent required therein, UT Hospital Employees shall be subject to

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termination, layoff (reduction in force), suspension, or demotion only in

accordance with the UT Personnel Policies and Procedures, as administered

by UHS; (b) Subject to the preceding Section 1.4(a), each UHS Employee and

UT Hospital Employee will be an at-will employee, and may be terminated at

any time, subject to the provisions of any applicable federal, state and local

laws. After Closing [on July 29, 1999], UHS will be solely responsible for all

aspects of supervision and control (including, but not limited to, salary, shift,

call and overtime) of all UT Hospital Employees and UHS Employees and will

exclusively administrate its own comprehensive personnel system (including,

but not limited to, its own non-discrimination and affirmative action plan and

its own travel and reimbursement policy). Except as provided in this Section

1.4, UT and UT Personnel Policies and Procedures will have no jurisdiction

or authority over the Hospital, UT Hospital Employees or UHS Employees,

other than the responsibility of UHS to faithfully administrate the UT

Personnel Policies and Procedures for UT Hospital Employees with regard to

termination, layoffs, suspension and demotion. UHS shall, at all times, retain

the right to control and direct each UT Hospital Employee, not only as to the

result to be accomplished by the work, but also as to the task and means by

which that result is to be accomplished. UHS shall, at all times, have the right

to direct the time and the place where services shall be performed by UT

Hospital Employees, and (c) subject to Section 1.4(a), UT may apply its UT

Personnel Policies and Procedures to collect debts and obligations owed to it

by UT Hospital Employees or funds subject to garnishment. UT shall have no

obligation to apply its policies and procedures to collect debts owed by UT

Hospital Employees to UHS.

9.4 Liability With Respect To UT Hospital Employees. UT Hospital

Employees performing services under this Agreement are “loaned servants”

of UHS. Respondeat superior liability for the acts and omissions of UHS

Employees and the acts and omissions of UT Hospital Employees on or after

Closing shall lie solely with UHS. All workers’ compensation liability for

occurrences on or after Closing with respect to UT Hospital Employees shall

lie solely with UHS. At all times during the Term of this Agreement, and at

its expense, UHS shall provide workers’ compensation insurance for UT

Hospital Employees in accordance with applicable Tennessee law.

9.5 Protection For UT Hospital Employees. UT and UHS understand

and agree that in performing services under this Agreement, the UT Hospital

Employees are state employees “employed in the service of the state” and their

“compensation is payable by the state” within the meaning of Tenn.Code Ann.

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§ 8-42-101(3)(A) and Tenn. Code Ann. § 8-34-101(18). Therefore, UT and

UHS understand and agree that the UT Hospital Employees remain eligible to

participate in the UT Retirement Plans and other UT Benefit Plans and remain

eligible to raise the absolute immunity defense provided in Tenn. Code Ann.

§ 9-8-307(h) against individual or personal liability for acts or omissions

within the scope of their employment. Notwithstanding the above, UT and

UHS agree that all respondeat superior liability for the acts and omissions of

the UT Hospital Employees lies solely with UHS, which will exercise

exclusive direction and control over the performance of services by UT

Hospital Employees under this Agreement. UHS shall indemnify, defend, and

hold harmless UT Hospital Employees against all individual or personal

liability for Damages arising out of, attributable to, or in connection with, any

act or omission of a UT Hospital Employee in the performance of services

under this Agreement, except for willful, malicious, or criminal acts or

omissions, or for acts or omissions done for personal gain.

Ms. Womble has filed claims related to her employment termination in three venues.

First, Ms. Womble’s termination letter informed her that as a “UT leased employee,” she had

the right to appeal her termination through either an informal hearing under UHS’s

“Complaint Resolution Policy” or through a formal hearing, with the right to counsel, under

the Tennessee Uniform Administrative Procedures Act, Tennessee Code Annotated § 4-5-

101, et seq. (“TUAPA”). Ms. Womble chose the latter process and timely notified UHS

Human Resources of her desire to appeal under TUAPA. A hearing was conducted at UT

Hospital on September 29, 2011, before Hearing Officer Joan Sompayrac, appointed by

Chancellor Steve J. Schwab. A transcript of this hearing is contained in the record for the

instant appeal, but no copy of the hearing officer’s ruling is included. The parties state in

their briefs, however, that the TUAPA hearing officer determined that Ms. Womble was not

an employee of the State and was therefore not owed a name-clearing hearing or due process.

Ms. Womble has appealed this decision to the Davidson County Chancery Court pursuant

to Tennessee Code Annotated § 4-5-322(b)(1)(A) (Supp. 2012). No adjudication from the

Davidson County Chancery Court appears in this appellate record.

Second and nearly contemporaneously with the claim at issue in this cause, Ms.

Womble filed a complaint against UHS and Thomas Fields in the Knox County Circuit Court

on July 18, 2011. A copy of that complaint is included in the record for the instant appeal.

The circuit court complaint alleged breach of contract, wrongful termination, violation of 42

United States Code § 1983 due process rights, misrepresentation, fraud, deceit, malice,

violation of policies and procedures guaranteed to state employees, and violation of the

Tennessee Human Rights Act (“THRA”) prohibitions against age and disability

discrimination. See T.C.A. § 4-21-101, et seq. (Supp. 2012). UHS and Mr. Fields filed a

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motion for summary judgment, which the circuit court denied on all counts except the 42

United States Code § 1983 claim. The court granted summary judgment to UHS on that

claim and attendant thereto, found the Enabling Statute, T.C.A. § 49-9-112, to be

unconstitutional. The circuit court granted permission for the parties to apply for

interlocutory appeal with this Court, pursuant to Rule 9 of the Tennessee Rules of Appellate

Procedure. Ms. Womble, UHS, and the Attorney General all filed applications for

interlocutory appeal, which this Court granted in an Order entered on February 20, 2013.

The interlocutory appeal is pending as of the date of the filing of this decision.1

Ms. Womble’s third case is the one at issue in the present appeal. This action was

initially filed with the Division of Claims Administration on July 15, 2011. Ms. Womble’s

claim alleged breach of contract and violation of due process. The administrative division

transferred Ms. Womble’s claim to the Claims Commission on October 13, 2011, because

the division had been unable to act on the claim for ninety days. See T.C.A. § 9-8-402(c)

(Supp. 2012) (“If the division fails to honor or deny the claim within the ninety-day

settlement period, the division shall automatically transfer the claim to the administrative

clerk of the claims commission.”). Notice of the transfer sent to Ms.Womble included a

requirement that a formal complaint be filed with the Commission within thirty (30) days of

the notice. On March 26, 2011, the Commission entered an order directing that Ms. Womble

show cause why her claim should not be dismissed because she had not yet filed a formal

complaint. Ms. Womble filed a response the next day, attaching her complaint as well as

documentation of her TUAPA and circuit court claims. Her complaint sought, inter alia,

$1,500,000.00 in compensatory damages and alleged ten theories of liability: (1) breach of

contract, (2) outrageous conduct, (3) violation of 42 United States Code § 1983, (4) wrongful

termination, (5) violations of the THRA, (6) misrepresentation, (7) fraud, (8) deceit, (9)

malice, and (10) negligence. Upon the Commission’s request, the State filed a response,

after which the Commission conducted a hearing on May 31, 2012.

Following the hearing, which focused primarily on oral arguments regarding subject

matter jurisdiction, Commissioner William O. Shults entered an Order of Dismissal on July

5, 2012. The Commission’s Order provided in pertinent part:

1

We have gleaned procedural information regarding the Knox County Circuit Court case and

interlocutory appeal to this Court from pleadings attached to the motion to consolidate with this appeal, the

procedural history summarized by the parties in their briefs, and the Appellate Court Clerk’s procedural

records. See Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App. 2005) (holding that pursuant to Rule

201 of the Tennessee Rules of Evidence, a court may take judicial notice of facts “capable of accurate and

ready determination” in its own proceedings).

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Ms. Womble asserts in her post-hearing brief that she is a third party

beneficiary of the 1999 agreement entered into by UT and UHS. This

argument, while facially appealing, neither comports with the provisions of

Tenn. Code Ann. 9-8-307(a)(1)(L) or cases that have considered that statutory

provision. In Computer Shoppe, Inc. v. State of Tennessee, 780 S.W.2d 729

(Tenn. Ct. App. 1989), perm. app. d’nd November 27, 1989, the Middle

Section of the Court of Appeals sets out a succinct history of how the State’s

waiver of sovereign immunity in contract cases has evolved since 1977.

Initially, the Legislature waived immunity in cases involving alleged breaches

of both express written and oral contracts as well as implied contracts. Shortly

thereafter, the wavier was rescinded in implied contract cases. Finally, in

1989, the Tennessee Claims Commission Act, at the request of the Attorney

General, was amended to delete our jurisdiction over cases alleging breaches

of oral agreements. The language in subsection (L) has not been amended

since that time and clearly provides that the Commission has jurisdiction over

cases only when there is an alleged “breach of a written contract between the

claimant and the state . . . executed by one (or more) state officers or

employees with authority to execute the contract; . . . .” Id. at 735-736.

This narrow construction of Tenn. Code Ann. § 9-8-307(a)(1)(L)

evidences a clear legislative intent to waive the State’s sovereign immunity

against suit in contractual settings only where there is an express written

contract between the State and a particular entity or individual. This

construction of the provision is consistent with cases which have said clearly

that the Claims Commission Act, being in derogation of the State’s common

law sovereign immunity against suit, must be narrowly construed. See State,

ex rel. Allen v. Cook, 106 S.W.2d 858, 860 (Tenn. 1937); State v. Conley, 141

S.W.3d 591, 597 (Tenn. 2004). Moreover, our research has uncovered no

cases in which a third party beneficiary theory has been successful under the

Tennessee Claims Commission Act.

Put simply, there is no express written contract between Ms. Womble

and the State. That is a sine qua non for Commission jurisdiction in cases

alleging breach of contract.

...

Ms. Womble also argues in her post-hearing filing that under the

Employee Services Agreement, UHS was cloaked with State authority to

manage the rights afforded to UHS employees under that agreement, and that

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in so doing, the State was negligent in monitoring the actions of Ms. Womble’s

departmental supervisor, Mr. Fields, who failed to afford her those rights

found in Tenn. Code Ann. § 8-30-331 thus denying her due process of law.

There are several problems with this creative but unsupportable theory.

First, Tenn. Code Ann. § 8-30-331 was at the time found within the provisions

of the law creating the Tennessee Civil Services Commission.[FN]5 Tenn. Code

Ann. § 9-8-307(a)(1)(N) clearly provides that the Commission does have

jurisdiction in cases alleging a “[n]egligent deprivation of statutory rights

created under Tennessee law except for actions arising out of claims over

which the Civil Service Commission has jurisdiction.” (Emphasis added).

Therefore, cases involving a deprivation of employment rights found in Tenn.

Code Ann. § 8-30-331, assuming Mr. Fields and Ms. Womble were both State

employees, would have been dealt with initially by the Civil Service

Commission and not the Claims Commission. The Commission must reiterate,

though, that after July 1999, neither of these individuals were classified as

State employees.

[FN]5

This provision, along with sections providing for the structure and the

implementation of the Tennessee civil service system was repealed in 2012

with the passage of 2012 Tenn. Pub. Law, Public Chapter 800 (HB 2384).

However, this repeal does not impact this case since the underlying facts

occurred before the effective date of the 2012 legislation.

Additionally, it has been held several times by our appellate courts that

in order for a claimant to have a cause of action under subsection (N), the

statutory provision relied on must specifically provide for such. Brown v.

State, 333 S.W.3d 102, 105 (Tenn. Ct. App. 2010). We find nothing in Tenn.

Code Ann. § 8-30-331 granting to an alleged State employee, such as Ms.

Womble, the right to bring a claim against the State for this sort of grievance.

Lastly, there is a separate issue with Ms. Womble’s allegation that the

State negligently failed to supervise Mr. Fields, who she claims, was cloaked

with State authority, and that his actions resulted in a deprivation of her

constitutional property right to continued employment at the hospital. Aside

from the fact that Fields was not a State employee at the time of Ms. Womble’s

discharge in 2010 nor was Ms. Womble after the ESA was entered into in July

1999, the Commission clearly has not had jurisdiction over this category of

constitutional claims since 1989.

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In the leading case addressing the issue of whether the Commission has

jurisdiction over claims alleging a negligent deprivation of constitutional

rights, Shell v. State, 893 S.W.2d 416 (Tenn. 1995), the Tennessee Supreme

Court traced the history of this Commission’s jurisdiction in such cases.

Following the United States Supreme Court’s decision in Daniels v. Williams,

474 U.S. 327, 106 S.Ct. 662 (1986), the General Assembly amended

subsection (N) to delete our jurisdiction over cases alleging a negligent

deprivation of constitutional rights in light of the Daniels holding. See Acts

of 1989, Ch. 491, Section I, 1989 Tenn. Pub. Acts 853, 854; Shell, 893 S.W.2d

at 418.

Therefore, we have not had any jurisdiction since 1989 over claims

alleging a negligent deprivation of constitutional rights.

Ms. Womble timely appealed. She subsequently filed a motion with this Court to

consolidate the application for interlocutory appeal from the circuit court case with this

appeal of the Commission’s dismissal. This Court denied the motion for consolidation on

January 15, 2013, citing as a basis for denial the objections proffered by UHS in its response

to the motion to consolidate. These objections included that (1) the motion was premature

and (2) the interlocutory appeal is specific to the constitutionality of the Enabling Statute and

should not be mixed with the issue of subject matter jurisdiction before the Commission that

is the crux of the instant appeal.

II. Issues Presented

On appeal, Ms. Womble presents two issues, which we have restated as follows:

1. Whether the Claims Commission erred by dismissing Ms. Womble’s contract

and negligence claims on the basis of its lack of subject matter jurisdiction

without considering the constitutional validity of the Enabling Statute or the

ESA.

2. Whether, under the ESA, Ms. Womble has enforceable third-party beneficiary

rights as a career state employee.

III. Standard of Review

Subject matter jurisdiction over claims presented to the Claims Commission is a

question of law, which we review de novo with no presumption of correctness for the

conclusions of law made by the Commission. See Mullins v. State, 320 S.W.3d 273, 278

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(Tenn. 2010) (citing Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000); Northland Ins. Co.

v. State, 33 S.W.3d 727, 729 (Tenn. 2000)); Williams v. State, 139 S.W.3d 308, 311 (Tenn.

Ct. App. 2004) (citing Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58

S.W.3d 706, 710 (Tenn. 2001)).

IV. Subject Matter Jurisdiction

Ms. Womble contends that the Claims Commission erred by ruling that it did not have

subject matter jurisdiction over her breach of contract and negligence claims. She does not

challenge the Commission’s dismissal of the other eight counts included in her complaint.

For the contract and negligence claims, however, Ms. Womble argues that the Commission’s

decision was based on its conclusion that she was not a state employee and that this

conclusion was grounded in the Commission’s finding that the Enabling Statute and the ESA

were valid. She argues that she had a property interest in her position at UT Hospital and that

the State was required to provide her with due process before it terminated her employment,

thereby depriving her of that property interest.

An individual’s right to due process to protect a property right is secured through the

Fourteenth Amendment to the United States Constitution. See Bd. of Regents v. Roth, 408

U.S. 564, 576-77 (1972) (“Property interests, of course, are not created by the Constitution.

They are created and their dimensions are defined by existing rules or understanding that

stem from an independent source such as state laws-rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits.”). Depending upon

the conditions of their appointment, public employees may have a property interest in their

expectation of continued employment. See id. at 578.

The State posits that the Claims Commission correctly dismissed Ms. Womble’s

action because the Commission has only limited jurisdiction pursuant to the Tennessee

General Assembly’s limited waiver of sovereign immunity. The State further argues that the

Commission lacks subject matter jurisdiction over any claims for deprivation of

constitutional rights, including the right to due process through the Fourteenth Amendment.

We agree.

Our Supreme Court has succinctly described subject matter jurisdiction and how it is

conferred on a tribunal:

The concept of subject matter jurisdiction involves a court’s lawful authority

to adjudicate a controversy brought before it. See Meighan v. U.S. Sprint

Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Standard Sur. &

Casualty Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943).

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Subject matter jurisdiction involves the nature of the cause of action and the

relief sought, see Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and

can only be conferred on a court by constitutional or legislative act. See Kane

v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Computer Shoppe, Inc. v. State,

780 S.W.2d 729, 734 (Tenn. Ct. App. 1989).

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

It is well settled that the State possesses sovereign immunity from lawsuits, “except

as it consents to be sued.” Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000) (citing Hawks

v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997); Brewington v. Brewington, 387

S.W.2d 777, 779 (Tenn. 1965)). The Claims Commission was created by the General

Assembly in 1984 to “hear and determine claims against the State,” pursuant to the

legislature’s “constitutional prerogative to allow suits against the State.” Mullins, 320

S.W.3d at 278-79 (citing Act of May 24, 1984, ch. 972, §§ 1, 5(a), 1984 Tenn. Pub. Acts

1026, 1027-28 (codified at T.C.A. § 9-8-301(a),-305(1) (Supp. 1984)).

The Commission’s jurisdiction is confined to monetary claims within specific

categories enumerated in Tennessee Code Annotated § 9-8-307(a)(1) (Supp. 2012). See

Mullins, 320 S.W.3d at 279; Conley v. State, 141 S.W.3d 591, 597 (Tenn. 2004). The

categories at issue for the breach of contract and negligence claims in this appeal are:

(L) Actions for breach of a written contract between the claimant and the

state which was executed by one (1) or more state officers or employees

with authority to execute the contract; provided, that the group

insurance agreements created pursuant to §§ 8-27-201 and 8-27-302

shall be considered contracts for purposes of this subsection (a) in order

for the commission to determine insurance claims which have been

previously rejected by the state insurance committee or the local

education insurance committee;

...

(N) Negligent deprivation of statutory rights created under Tennessee law,

except for actions arising out of claims over which the civil service

commission has jurisdiction. The claimant must prove under this

subdivision (a)(1)(N) that the general assembly expressly conferred a

private right of action in favor of the claimant against the state for the

state’s violation of the particular statute’s provisions; . . .

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T.C.A. 9-8-307(a)(1). The Claims Commission only has subject matter jurisdiction to hear

Ms. Womble’s claims if those claims meet the requirements of these statutory descriptions.

See Mullins, 320 S.W.3d at 283 (“In determining whether the General Assembly intended to

waive sovereign immunity for a claim against the State of Tennessee by providing

jurisdiction to the Claims Commission, our primary focus must remain on the actual words

chosen and enacted by the legislature.”); Northland Ins., 33 S.W.3d at 728 (“[A] waiver of

sovereign immunity must be clear and unmistakable . . . .”).

The Claims Commission found that there was “no express written contract between

Ms. Womble and the State.” In so finding, the Commission correctly noted that an express

written contract is an indispensable condition for the Commission to have subject matter

jurisdiction over a claim for breach of contract. See T.C.A. § 9-8-307(a)(1)(L); Ku v. State,

104 S.W.3d 870, 876 (Tenn. Ct. App. 2002) (holding that because a college handbook did

not constitute a written contract, the Claims Commission properly dismissed a student’s

breach of contract claim for lack of subject matter jurisdiction). Ms. Womble maintains that

she remained a state employee after UHS began operating UT Hospital in 1999. She does

not propose that under the Enabling Statute and the ESA, she has an express contract with

the State. Instead, she argues that the Commission erred by giving credence to the Enabling

Statute and the ESA because said statute and agreement violated her constitutional right to

due process before being deprived of a property right in career state employment.

As Ms. Womble concedes, the Commission does not have jurisdiction over claims

arising from intentional acts of state actors. See T.C.A. § 9-8-307(a)(1). More to the point,

the Commission’s jurisdiction over claims arising from negligent acts of state actors does not

extend to acts that allegedly deprive the claimant of a constitutional right. See Daniels v.

Williams, 474 U.S. 327, 334 (1986) (holding that negligence by state officials does not

implicate the due process clause); Shell v. State, 893 S.W.2d 416, 419-20 (Tenn. 1995)

(holding that the General Assembly’s amendment to Tennessee Code Annotated § 9-8-

307(a)(1)(N), enacted in light of the Daniels decision, removed any cause of action before

the Claims Commission for negligent deprivation of a constitutional right). We conclude that

the Claims Commission does not have subject matter jurisdiction to consider the

constitutionality of the Enabling Statute or the validity of the ESA in terms of an alleged

deprivation of employees’ constitutional rights.

Inasmuch as we have determined that the Claims Commission lacks subject matter

jurisdiction over claims arising from intentional or negligent deprivation of a constitutional

right, it follows that the Commission does not have jurisdiction either to analyze the

constitutionality of the Enabling Statute and the validity of the ESA or to hear a claim arising

from the alleged negligent deprivation of Ms. Womble’s property right in her position. The

only negligence claim left to Ms. Womble that could be within the Claims Commission’s

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jurisdiction is the negligent deprivation of a statutory right, pursuant to Tennessee Code

Annotated § 9-8-307(a)(1)(N). Ms. Womble argues that the State, by cloaking UHS and Mr.

Fields with state authority, negligently monitored the departmental supervision over Ms.

Womble and thereby deprived her of the rights afforded to state career employees in

Tennessee Code Annotated § 8-30-331 (2010).

As the Commission noted in its Order, Tennessee Code Annotated § 8-30-331 was

repealed in 2012; the 2010 version of the statute controls in this case. See 2012 Tenn. Pub.

Acts ch. 800, § 41. The 2010 version provides in pertinent part:

(a) Employees who have successfully completed their probationary period

have a “property right” to their positions. Therefore, no suspension, demotion,

dismissal or any other action which deprives a regular employee of such

employee’s “property right” will become effective until minimum due process

is provided as outlined below.

T.C.A. § 8-30-331(a) (2010) (enumerating due process procedures in subsequent

paragraphs). It is undisputed that this statute, contained within the Civil Service chapter of

the Code, applies only to public employees. Ms. Womble’s primary argument on appeal

regarding the alleged deprivation of her due process rights under this statute is that the

Commission erred, again by upholding the Enabling Statute and the ESA, in finding that Ms.

Womble was not a state employee. Ms. Womble concedes that the “Claims Commission

lacked authority to address the constitutionality of the enabling statute or declaratory

judgment authority to declare the ESA invalid and enjoin its enforcement.” (Appellant’s

Brief 4.) She urges this Court to analyze the constitutionality of the Enabling Statute. We

will not reach such an analysis here because what is at issue in this appeal is whether the

Claims Commission erred in finding that it lacked subject matter jurisdiction. See Dorrier

v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a court of appeals and errors, and we

are limited in authority to the adjudication of issues that are presented and decided in the trial

courts . . . .”).

The Claims Commission notes also in its Order that if Ms. Womble had been a state

employee at the time of her termination, a deprivation of her statutory right under Tennessee

Code Annotated § 8-30-331 would not have been within the jurisdiction of the Claims

Commission because a claim under that statute, as part of the Civil Service Code, would have

arisen under the Tennessee Civil Service Commission, and Civil Service Commission claims

are expressly exempted from the jurisdiction allocated to the Claims Commission for

negligent deprivation of a statutory right. We agree. See T.C.A. § 9-8-307 (a)(1)(N);

Armstrong v. Tenn. Dep’t of Veterans Affairs, 959 S.W.2d 595, 597 (Tenn. Ct. App. 1997)

(noting in a review of a claim filed with the Civil Service Commission that “Career service

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employees who have completed their initial working test periods are called ‘regular

employees’ and they are given certain protections under the Civil Service Code.”) (internal

citation omitted).

We conclude that in determining whether it had subject matter jurisdiction over Ms.

Womble’s claims, the Commission properly considered Ms. Womble’s employment under

the Enabling Statute and the ESA and properly found that she did not have an express written

contract with the State. We therefore hold that the Commission lacked subject matter

jurisdiction over Ms. Womble’s breach of contract claim. We further hold that because the

Commission does not have jurisdiction over claims alleging negligent deprivation of a

constitutional due process right and because it did not have jurisdiction over Ms. Womble’s

claim that she was deprived of a statutory due process right, the Commission lacked

jurisdiction over Ms. Womble’s negligence claim.

V. Third-Party Beneficiary Rights

Ms. Womble contends that under the ESA, she has enforceable rights as an intended

third-party beneficiary because the leased UT Hospital employees were intended third-party

beneficiaries of the ESA. The State asserts that third-party claims fall outside the limited

waiver of sovereign immunity for breach of contract claims. We agree with the State’s

position.

As explained above, the Tennessee General Assembly has provided for a waiver of

sovereign immunity before the Claims Commission only for those contract claims that arise

from “breach of a written contract between the claimant and the state which was executed

by one (1) or more state officers or employees with authority to execute the contract . . . .”

See T.C.A. § 9-8-307(a)(1)(L); Ku, 104 S.W.3d at 876. Ms. Womble concedes that the ESA

is not an express contract between the State and her, but she argues that as a leased employee

under the ESA, she was one of a group of intended beneficiaries to the contract. We note

that the ESA contains the following provision expressly denying the agreement’s application

to benefit third parties:

11.7 No Third-Party Beneficiaries. This Agreement does not confer any

benefit or right upon any Person other than UT and UHS, and no party

claiming third-party beneficiary status shall be entitled to enforce any

obligation, responsibility or claim of either party to this Agreement.

In support of her position, Ms. Womble cites this Court’s decision in Coburn v. City

of Dyersburg for the proposition that a government entity can have contract liability to a

third-party beneficiary if that party can show that “the contract was intended by the parties

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to confer a direct obligation” on her as an “identifiable” third party. See 774 S.W.2d 610,

612 (Tenn. Ct. App. 1989). The action at issue in Coburn is distinguishable from the action

in this case because in Coburn, the action arose under the Tennessee Governmental Tort

Liability Act, T.C.A. § 29-20-101, et seq. (2010), and was heard in circuit court. See

Coburn, 774 S.W.2d at 611. We find no legal authority providing for a third-party

beneficiary action against the State before the Claims Commission. We maintain that a

“waiver of sovereign immunity must be clear and unmistakable.” See Northland Ins., 33

S.W.3d at 728.

We conclude that the Claims Commission correctly found that it does not maintain

subject matter jurisdiction over a third-party beneficiary claim because such a claim does not

lie within the parameters of allowed claims under Tennessee Code Annotated 9-8-

307(a)(1)(L). The issue of whether Ms. Womble could be construed as a third-party

beneficiary of the ESA is therefore pretermitted as moot.

VI. Conclusion

For the reasons stated above, we affirm the order of the Tennessee Claims

Commission dismissing this action for lack of subject matter jurisdiction. This case is

remanded to the Claims Commission, pursuant to applicable law, for such further

proceedings as may be required, if any, and for collection of costs assessed below. The costs

on appeal are assessed against the Appellant, Lisa Womble, and her surety, for which

execution may issue if necessary.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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