# Jamesway Construction, Inc. v. David W. Salyers, P.E. (Dissenting)

> Court of Appeals of Tennessee · September 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10589647

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** September 20, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Jeffrey Usman
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10589647

## How later opinions describe it (automated extraction)

- stating that “the Public Act is controlling and, when there is a conflict during the process of codification, the Act as originally passed control”
- noting that “when the law as adopted by the legislature differs in substance from the law as codified, we must follow the legislature’s version”

## Opinion text

09/20/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 9, 2024 Session

JAMESWAY CONSTRUCTION, INC. v. DAVID W. SALYERS, P.E.

Appeal from the Chancery Court for Davidson County
No. 23-0419-II Anne C. Martin, Chancellor
___________________________________

No. M2023-01704-COA-R3-CV
___________________________________

JEFFREY USMAN, J., dissenting.

The parties in the present appeal duel over the question of whether, when appealing
the decision of an administrative judge to the Board of Water Quality, Oil, and Gas in
relation to an alleged violation of the Water Quality Control Act, a party has 15 or 30 days
in which to appeal. Jamesway Construction, Inc. asserts that the Tennessee Department of
Environment and Conservation (TDEC) only had 15 days to appeal, and, accordingly, that
the administrative judge’s decision became final when TDEC failed to appeal within that
period. TDEC insists that it had 30 days to appeal, and, accordingly, that its appeal was
timely.

Tennessee Code Annotated section 69-3-110(a), a provision of the Water Quality
Control Act, expressly provides that “the administrative judge’s initial order, together with
any earlier orders issued by the administrative judge, shall become final unless appealed to
the board1 by the commissioner2 or other party within thirty (30) days of entry of the initial
order.”3 The majority, nevertheless, concludes that the commissioner or other party does
not actually have 30 days to appeal and instead must appeal within 15 days to prevent the

1
As defined in the Water Quality Control Act, the Board “means the board of water quality, oil
and gas, created in § 69-3-104.” Tenn. Code Ann. § 69-3-103(4).
2
As defined in the Water Quality Control Act, the Commissioner “means the commissioner of
environment and conservation or the commissioner’s duly authorized representative and, in the event of the
commissioner’s absence or a vacancy in the office of commissioner, the deputy commissioner.” Tenn.
Code Ann. § 69-3-103(6).
3
Under the Water Quality Control Act, “[a]ny hearing brought before the board pursuant to § 69-
3-105(i), § 69-3-109, § 69-3-115, § 69-3-116, or § 69-3-118 shall be conducted as a contested case. The
hearing shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-
314(b), unless settled by the parties.” Tenn. Code Ann. § 69-3-110(a).
administrative judge’s decision from becoming final. While the majority offers a
thoughtful opinion in support of this understanding, I respectfully disagree with the
conclusion reached by my colleagues.

Before we begin to put together the parts to see what the General Assembly has
legislatively designed regarding appeals to the Water Quality, Oil, and Gas Board from
decisions of administrative judges in relation to alleged violations of the Water Quality
Control Act, it is critical to make certain that we know, and have together, all the parts that
make up the final legislative product designed by the legislature. Much of my divide with
my colleagues in the present case involves a disagreement over whether a particular part
should be included as a component in putting together that final product.

The majority discounts a portion of the Tennessee General Assembly’s 2013
amendment of the Water Quality Control Act. Via a 2013 amendment to the Water Quality
Control Act, the General Assembly adopted the following provision:

For the purpose of construing this act in relation to the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5, this act shall
be deemed to be procedural in nature. It is the intent of the general assembly
that this act and the Uniform Administrative Procedures Act shall be
complied with, however when in conflict, the provisions of this act shall
govern.

2013 Tenn. Pub. Acts, ch. 181 § 19. The majority disregards this provision because the
amendment has not been codified into the Tennessee Code Annotated despite being
approved through the legislative process in the General Assembly and signed into law by
the Governor. The majority regards the 2013 amendment as more akin to legislative history
that speaks to the legislative intent rather than actual law.

I disagree with this understanding of the uncodified portion of the 2013 amendment.
Tennessee Code Annotated section 1-1-108(a) authorizes the Tennessee Code Commission
to

rearrange, regroup and renumber the titles, chapters, sections and parts of
sections of the statutes, codes and code supplements and to change reference
numbers to agree with any renumbered chapter or section; to change the
wording of and prepare new section headings and symbols; to substitute the
proper section or chapter reference where the terms “this act” or “the
preceding section” or similar expressions are used in the statutes; to correct
manifest misspelling and typographical errors and to change capitalization
and spelling for the purpose of uniformity; to change references to
governmental agencies, departments and officers when part or all of the
powers, rights and/or duties of such agencies, departments or officers have,
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by an act of the general assembly, been transferred to other agencies,
departments or officers; to omit enacting clauses, repealing clauses,
severability clauses, conditional clauses, preambles, captions and statements
declaring legislative intent; and to make other stylistic, nonsubstantive
changes if such changes are consistent with style guidelines that have been
approved by the commission and submitted to the judiciary committee of the
senate and the civil justice committee of the house of representatives.

However, Tennessee law also provides that when “preparing the manuscript of the revised
compilation (including pocket supplements and replacement volumes) for publication and
distribution, the commission shall not alter the sense, meaning or effect of any act of the
general assembly, but shall copy the exact language of the text of the statutes, codes and
session laws of a public and general nature of the state of Tennessee.” Id. A contrary
approach allowing for “alteration of the sense, meaning or effect of any act of the general
assembly” by the Tennessee Code Commission would raise serious constitutional
concerns. See generally Tenn. Const. art. II (setting forth multiple clauses that address the
lawmaking process in the Tennessee General Assembly); Tenn. Const. art. III, § 18
(describing the procedure for presentment and signing or vetoing legislation by the
Governor).

Despite the prohibition on altering the sense, meaning, or effect of the text of the
statute as passed and even when exercising caution,4 it is possible for the Code Commission
to err. Tennessee courts have indicated that when such an error occurs it is the public act
that was passed into law by the General Assembly rather than the modified version that
appears in the code that is the law. See, e.g., State v. Frazier, No. M2016-02134-CCA-R9-
CD, 2017 WL 4251118, at *5 (Tenn. Crim. App. Sept. 25, 2017) (noting the existence of
a “codification error” and “that ‘[w]hen there is a conflict in the codification process, the
Public Act as originally passed controls’”); State v. Ford, No. M2007-00431-CCA-R3-CD,
2008 WL 1968824, at *4 (Tenn. Crim. App. May 7, 2008) (“Presumably, the Code’s
shortened and incomplete definition of ‘magistrate’ results from a codification error. When
there is a conflict in the codification process, the Public Act as originally passed controls.”);
State v. Hicks, 835 S.W.2d 32, 37 (Tenn. Crim. App. 1992) (stating that “the Public Act is
controlling and, when there is a conflict during the process of codification, the Act as
originally passed control”); see also Shelby Cnty. v. King, 620 S.W.2d 493, 498 (Tenn.
1981) (Brock, J., concurring) (“This change, however, is apparently the result of an
inadvertence of the Code Commission, since no public act in 1978 authorized such a
change in the wording of T.C.A., s 67-3012. . . . [T]he apparent change in T.C.A., s 67-
3012, purporting to extend the exemption to use taxes as well as the sales tax is wholly
4
The Tennessee Supreme Court has indicated that in fulfilling its duties “the Code Commission
should exercise great care in altering the text of a statute” because it is not authorized to “alter the sense,
meaning or effect of any act of the general assembly.” Garrison v. Bickford, 377 S.W.3d 659, 665 n.7
(Tenn. 2012) (citations omitted).

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ineffectual.”); cf. Westbrook Ins. Co. v. Crosby, No. 2:22-cv-2406-MSN-atc, 2023 WL
3767085, at *19 (W.D. Tenn. Jun. 1, 2023) (“If the Code Commission was responsible for
the change, then that change could not have altered the meaning of 56-7-105 because the
Code Commission lacks authority to make substantive changes to the meaning of the
Tennessee Code.”).5 Accordingly, I disagree with the majority’s understanding of the
uncodified portion of the 2013 amendment as no more than an indication of an unrealized
legislative intent rather than a part of Tennessee law. In other words, the 2013 amendment
to the Water Quality Control Act is one of the parts, one of the component pieces, that
make up the final legislative design for the process for appeals from administrative judges
before the Board of Water Quality, Oil, and Gas under the Water Quality Control Act.

In considering how the different parts fit together, as a starting point, Tennessee
Code Annotated section 69-3-110(a) of the Water Quality Control Act expressly provides
for an appeal to the Board of Water Quality, Oil, and Gas being timely when filed to the
within 30 days. This is a specific provision and would seem to govern, establishing 30
days as the permissible period for appeals to the Board of Water Quality, Oil, and Gas.
However, as properly noted by the majority, the Uniform Administrative Procedures Act
(UAPA) provides that “[a] petition for appeal from an initial order shall be filed with the
agency, or with any person designated for such purpose by rule of the agency, within fifteen
(15) days after entry of the initial order.” Tenn. Code Ann. § 4-5-315(b). Initially, this
would not seem to pose a problem for the 30-day window under Tennessee Code Annotated
section 69-3-110(a) as the language relating to the timing for appeals to the Board of Water
Quality, Oil, and Gas under the Water Quality Control Act is plainly more specific than
the Uniform Administrative Procedures Act. But, there is, again as is properly noted by
the majority, an added complication. The UAPA also provides that “[i[n any other case of
conflict between this chapter and any statute, whether general or specific, this chapter shall
control . . . .” Tenn. Code Ann. § 4-5-103(b). Additionally, as currently codified, the Water
Quality Control Act also states in a section enacted prior to the 2013 amendment that “it is
intended that all procedures in this part shall be in conformity with the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5.” Tenn. Code Ann. § 69-3-
102(d). Such a result would fit within the framework of the UAPA’s objective which was
a response to the “growth in the number of agencies” and the accompanying problem that
had arisen in terms of “an ‘incoherent, and indeed incomprehensible hodgepodge’ of
procedures and a ‘very fragmented’ judicial review process” through creation of a
mechanism to “clarify and bring uniformity to the procedure of state administrative

5
Tennessee courts are far from alone in this understanding which aligns both with the federal
approach and that of other states. See, e.g., Stephan v. United States, 319 U.S. 423, 426 (1943) (indicating
that the United States “Code cannot prevail over the Statutes at Large when the two are inconsistent”);
Cont. Hydraulics Inc. v. Dept of Employment and Economic Dev., 832 N.W.2d 298, 301 n.4 (Minn. Ct.
App. 2013) (“Although this uncoded session law is not contained in Minnesota Statutes, it is binding
Minnesota law.”); State v. McFee, 136 Or. App. 160, 901 P.2d 870, 873 (1995) (noting that “when the law
as adopted by the legislature differs in substance from the law as codified, we must follow the legislature’s
version”).
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agencies and judicial review of their determination[s].” Pickard v. Tenn. Dep’t of Env’t &
Conservation, No. M2011-01172-COA-R3-CV, 2012 WL 3329618, at *9 (Tenn. Ct. App.
Aug. 14, 2012) (citations omitted).

This is the point where the majority’s assembly of the various components of the
legislature’s statutory design ends. While posing a problem in terms of rendering the 30-
day period of Tennessee Code Annotated section 69-3-110(a) a nullity, this configuration
would make sense in putting together the conflicting statutory provisions. My concern,
however, is that there is still a remaining unaccounted-for part—the 2013 amendment to
the Water Quality Control Act. As noted above, section 19 of chapter 181 of the 2013
Tennessee Public Acts provides:

[f]or the purpose of construing this act in relation to the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5, this act shall
be deemed to be procedural in nature. It is the intent of the general assembly
that this act and the Uniform Administrative Procedures Act shall be
complied with, however when in conflict, the provisions of this act shall
govern.

This is the latest-in-time measure of the various parts adopted by the General Assembly in
statutorily designing the appeals process before the Board of Water Quality, Oil, and Gas.
In my view, for the reasons noted above, we cannot disregard this provision on the basis it
was left uncodified by the Code Commission. Section 19 of chapter 181 of the 2013
Tennessee Public Acts remains law.

When we consider the 2013 amendment to the Water Quality Control Act as part of
the legislative design, it renders the deadline 30 days, not 15 days, for appeals filed to the
Board of Water Quality, Oil, and Gas for actions under the Water Quality Control Act. As
noted by the majority, the Tennessee Supreme Court has directed that in the event of
conflicting statutory provisions the more specific statutory provision takes precedence over
the more general provision. Falls v. Goins, 673 S.W.3d 173, 180 (Tenn. 2023) (quoting
Lovlace v. Copley, 418 S.W.3d 1, 20 (Tenn. 2013)). No provision at issue in the present
case approaches the level of specificity of Tennessee Code Annotated section 69-3-110(a)
which directly specifies the number of days (30) in which an appeal may be filed in
precisely this type of matter. The complication, though, remains that the UAPA claims to
govern in the event of both specific and general conflicts between its terms and other
statutory provisions. Nevertheless, under the 2013 amendment to the Water Quality
Control Act, this Act now specifically rejects applying the UAPA in event of a conflict
with the terms of the Water Quality Control Act. Thus, while the UAPA claims to apply
in the event of “any conflict” more generally, the Water Quality Control Act specifically
states that its terms apply rather than the UAPA. This is supportive of TDEC’s
understanding but not the firmest ground upon which to fully rest the analysis in the present
case. Ultimately, providing for additional security in the footing in this case is adherence
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to the Tennessee Supreme Court’s construction principal that “when ‘two acts conflict and
cannot be reconciled, the prior act will be repealed or amended by implication to the extent
of the inconsistency between the two.’” See Falls, 673 S.W.3d at 180 (quoting Hayes v.
Gibson Cnty., 288 S.W.3d 334, 337 (Tenn. 2009)). As asserted by Justice Antonin Scalia
and Professor Bryan Garner, there is “no doubt about it” that an implied repeal occurs when
a later statute “specifically permits what an earlier statute prohibited or prohibits what it
permitted.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 327 (2012). This understanding is consistent with previous decisions of the
Tennessee Supreme Court. For example, in Hayes v. Gibson County, a 2001 public act
was held to be irreconcilable with a 2000 private act where the public act established a
minimum salary of $50,805 for the juvenile court clerk while the private act mandated a
set salary of $32,000. Hayes, 288 S.W.3d at 338. The Tennessee Supreme Court reasoned
that because the public act mandated that the clerk absolutely could not be paid at the level
established by the private act, “the statutes are in irreconcilable conflict.” Id. at 339; see
also, e.g., Chartis Cas. Co. v. State, 475 S.W.3d 240, 246 (Tenn. 2015) (“The plain
language of section 578, stating that the assessments ‘shall no longer be imposed on
insurers,’ further supports our conclusion that the three workers’ compensation statutes
have been repealed insofar as they are inconsistent with section 578.”). The 2013
Amendment which states that the terms of the Water Quality Control Act apply when in
conflict with the UAPA, is later in time than the conflicting UAPA provision which
purports that it controls over conflicting statutory provisions and the conflicting Water
Quality Control Act provision that would favor the UAPA in any statutory conflict. Given
the conflicting nature of these provisions, each purporting to determine which statute
controls in the event of a conflict, the provision later in time, the 2013 amendment to the
Water Quality Control Act, applies. Accordingly, we return to where we began the highly
specific provision of Tennessee Code Annotated section 69-3-110(a), which directly
specifies the number of days (30) in which an appeal may be filed in precisely this type of
matter, with the UAPA not successfully rendering this provision a nullity. Therefore, I
would conclude that TDEC’s appeal was timely filed, and, thus, I respectfully dissent from
the majority’s thoughtful opinion in this case.

s/ Jeffrey Usman
JEFFREY USMAN, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10589647. Public record. Not legal advice.