The opinion
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
FILED
MIDDLE SECTION AT NASHVILLE
November 14, 1997
APPEAL FROM CHANCERY COURT OF DAVIDSON COUNTY
Cecil W. Crowson
AT NASHVILLE, TENNESSEE
Appellate Court Clerk
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
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. )
OPINION
The Trial Court and this Court 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 non-
compliance, 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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