Anthony D. Herron, Jr. v. State of Tennessee

04/07/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 2, 2021

ANTHONY D. HERRON, JR. v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. T20182106 James A. Hamilton, III, Commissioner

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No. W2019-00595-COA-R3-CV

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This case involves a breach of contract claim brought against the Tennessee Department

of Human Services pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(L). The

defendant moved to dismiss for lack of subject matter jurisdiction, claiming the parties

never entered into a written agreement. The Tennessee Claims Commission granted the

motion and dismissed the complaint for lack of subject matter jurisdiction. We affirm the

Commission’s decision and remand.

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

Affirmed and Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Anthony D. Herron, Jr., Memphis, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; E. Ashley Carter; and Shanell L. Tyler, for the appellee, State of Tennessee.

OPINION

I. FACTS & PROCEDURAL HISTORY

This case arises from Anthony D. Herron, Jr.’s (“Claimant’s”) interactions with the

Tennessee Department of Human Services (“DHS”).1 In November 2014, Claimant

1

This opinion marks Claimant’s fourth appeal to this Court since he applied for vocational

rehabilitation benefits with DHS. See Herron v. State, No. W2020-00776-COA-T10B-CV, 2020 WL

3481696 (Tenn. Ct. App. June 25, 2020); Herron v. Tenn. Dep’t of Human Servs., No. W2017-00067-COA-

applied for vocational rehabilitation benefits with the Division of Rehabilitation Services,

a branch of DHS.2 Claimant and DHS established an Individualized Plan for Employment

that was meant to help Claimant gain vocational skills. Under the plan, the parties arranged

for Claimant to take classes that would help enable him to become a flight instructor.

However, the flight school that was administering the classes closed unexpectedly. As a

result, Claimant was unable to complete his vocational education. After the flight school

closed, DHS determined that other self-employment plans submitted by Claimant were not

feasible.

Thereafter, Claimant alleges that DHS agreed to administer benefit payments. He

claims that he and DHS entered into an agreement on October 4, 2017, (“the Agreement”).

Under the Agreement, Claimant asserts that DHS agreed to administer to Claimant five

benefit payments of $18,595.22, totaling $92,976.10. Claimant also alleges that DHS

agreed to pay an additional $200,000 to Claimant if DHS failed to make a timely payment

or failed to distribute a payment. He asserts that Anthony McClyde (a Field Supervisor for

DHS) signed the Agreement on behalf of DHS. Claimant maintains that after the parties

executed the Agreement, he retained a copy and Mr. McClyde retained a copy of the

Agreement.

Claimant asserts that following the supposed execution of the Agreement, DHS

refused to administer any benefit payments or the purported $200,000 late fee. As a result,

on August 6, 2018, Claimant, acting pro se, filed a complaint for damages with the

Tennessee Claims Commission (“the Commission”) pursuant to Tennessee Code

Annotated section 9-8-307, et seq. In his complaint, Claimant alleged that because of

DHS’s purported breach of contract, he suffered $292,976.10 in damages. In his

complaint, Claimant specifically stated that Mr. McClyde and DHS retained a copy of the

Agreement. However, he did not attach a copy of the Agreement as an exhibit to his

complaint.

Throughout this case, DHS has maintained that no representative of DHS, including

Mr. McClyde, entered into a written agreement that stated DHS agreed to make benefit

payments to Claimant. Based on its position that it never executed the Agreement at issue,

on September 4, 2018, DHS moved to dismiss Claimant’s complaint pursuant to Tennessee

Rule of Civil Procedure 12.02(1). DHS claimed that the Commission lacked subject matter

jurisdiction to hear the case because there is no written contract between DHS and

Claimant. In support of its motion to dismiss, DHS included a memorandum of law and

an affidavit of Mr. McClyde.

R3-CV, 2017 WL 6467280 (Tenn. Ct. App. Dec. 18, 2017); Herron v. Tenn. Dep’t of Human Servs., No.

W2016-01416-COA-R3-CV, 2017 WL 438626 (Tenn. Ct. App. Feb. 1, 2017).

2

The Division of Rehabilitation Services administers a vocational rehabilitation program that seeks

to provide training services to eligible individuals.

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On October 1, 2018, Claimant responded to DHS’s motion to dismiss. Claimant

relied on his original affidavit that he included with his complaint. Claimant also argued

that, although he did not include a copy of the Agreement with his complaint, he complied

with Rule 10.03(2) of the Tennessee Rules of Civil Procedure by stating in his complaint

that a written copy of the Agreement was in DHS’s possession.

After Claimant filed his response to the motion to dismiss, DHS moved to compel

Claimant to provide a written copy of the Agreement. Previously, DHS made discovery

requests for Claimant to provide copies of the Agreement. Despite DHS’s requests,

Claimant did not provide a copy of the Agreement.

On January 2, 2019, the Commission entered an order of dismissal, granting DHS’s

motion to dismiss. The Commission found that as of the date of the court’s order, Claimant

had not produced a copy of the Agreement. It further found that there was insufficient

proof of a written contract between Claimant and DHS and, as a result, determined that it

lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-

307(a)(1)(L). In response to Claimant’s assertion that he complied with Rule 10.03, the

Commission stated that Claimant’s allegations were merely an attempt to comply with Rule

10.03(2). The Commission relied on the affidavit of Mr. McClyde that stated the parties

never executed a written agreement for benefit payments. Accordingly, the Commission

granted DHS’s motion to dismiss and dismissed Claimant’s complaint.

Following the Commission granting DHS’s motion to dismiss, Claimant moved for

an en banc hearing. DHS replied by again asserting that the Commission lacked subject

matter jurisdiction. Claimant filed a response to DHS’s reply. Claimant’s response

included, for the first time, an alleged copy of the Agreement.

The Agreement provided by Claimant was a one-page document titled “Confidential

Agreement.” The Agreement contained terms that described benefit payments to Claimant.

The Agreement purports to show that it was executed by Claimant and Mr. McClyde on

October 4, 2017. Below the line for Mr. McClyde’s alleged signature, it states that Mr.

McClyde signed as a “Counselor” for the Division of Rehabilitation Services.

DHS filed a memorandum in response to Claimant providing an alleged copy of the

Agreement. DHS alleged that the Agreement was a forged document and was not actually

signed by Mr. McClyde. It asserted that Claimant digitally copied Mr. McClyde’s

signature from a previous filing. In support of its memorandum, DHS included a new

affidavit by Mr. McClyde. Mr. McClyde denied ever signing a document titled

“Confidential Agreement.” Similarly, he asserted that the purported agreement provided

by Claimant was a forged document, that he has never signed an agreement as a

“Counselor,” and that no “client” of DHS has ever received services through a document

entitled “Confidential Agreement.”

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The Commission determined that Claimant’s motion did not meet the necessary

criteria for an en banc review and denied his motion.

Claimant timely appealed.

II. ISSUES PRESENTED

Claimant raises one issue on appeal, which we have slightly reworded: whether the

Commission erred in holding that it did not have subject matter jurisdiction to hear

Claimant’s alleged breach of contract claim.

For the reasons stated herein, we affirm the decision of the Commission and remand.

III. DISCUSSION

At the outset of our discussion, we note the treatment that this Court gives to a pro

se litigant such as Claimant. As we have previously stated:

Parties who decide to represent themselves are entitled to fair and

equal treatment by the courts. The courts should take into account that many

pro se litigants have no legal training and little familiarity with the judicial

system. However, the courts must also be mindful of the boundary between

fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.

Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected

to observe.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see also

Kondaur Capital Corp. v. Finley, No. W2019-00143-COA-R3-CV, 2019 WL 5067195, at

*2 (Tenn. Ct. App. Oct. 9, 2019); Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 551

(Tenn. Ct. App. 2015).

Turning our attention to the merits of this appeal, we must determine whether the

Commission had the authority to adjudicate Claimant’s breach of contract claim against

DHS. “The sovereign State of Tennessee is immune from lawsuits except as it consents to

be sued.” Smith v. Tenn. Nat’l Guard, 551 S.W.3d 702, 708 (Tenn. 2018) (quotation marks

omitted). “[T]he State includes the departments, commissions, boards, institutions and

municipalities of the State,” including DHS. Id. (quotation marks omitted); see also Payne

v. State, No. W2011-00761-COA-R3-CV, 2012 WL 6115665, at *3 (Tenn. Ct. App. Dec.

10, 2012). In order for the Legislature to waive sovereign immunity, it must enact a statute

that “‘clearly and unmistakably’ express[es] [its] intent to permit claims against the State.”

Smith, 551 S.W.3d at 709 (quoting Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19

(Tenn. 2007)).

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In 1984, the Legislature “enacted a comprehensive procedure for the filing,

prosecution, and disposition of monetary claims against the State. As a part of this statutory

scheme, the Tennessee Claims Commission, consisting of one commissioner from each

grand division of the State, was created to hear and determine claims against the State.”

Mullins v. State, 320 S.W.3d 273, 278-79 (Tenn. 2010). The Legislature empowered the

Commission “with exclusive jurisdiction to adjudicate certain specified claims for

monetary relief brought against the State.” Harris v. Tenn. Rehab. Initiative in Corr., No.

M2013-01858-COA-R3-CV, 2014 WL 1887302, at *1 (Tenn. Ct. App. May 8, 2014)

(citing Tenn. Code Ann. §§ 9-8-301 and -307; Stewart v. State, 33 S.W.3d 785, 791 (Tenn.

2000)). Tennessee Code Annotated section 9-8-307(a) specifies the causes of action that

may be brought against the State and adjudicated by the Commission. Ku v. State, 104

S.W.3d 870, 875 (Tenn. Ct. App. 2002). If a claim falls outside of the scope of section 9-

8-307(a), “the Claims Commission lacks subject matter jurisdiction and has no authority

to hear [the] claim[].” Mullins, 320 S.W.3d at 279. Whether the Commission has

jurisdiction to hear a claim under section 9-8-307(a) is a question of law that is reviewed

de novo with no presumption of correctness. See id. at 278.

The portion of subsection 9-8-307(a) that is relevant to this case states that the

Commission has exclusive jurisdiction to hear “[a]ctions for breach of a written contract

between the claimant and the [S]tate which was executed by one (1) or more state officers.”

Tenn. Code Ann. § 9-8-307(a)(1)(L).

After Claimant filed his complaint that alleged breach of contract, DHS moved to

dismiss the complaint. DHS filed its motion pursuant to Tennessee Rule of Civil Procedure

12.02(1), arguing that the Commission lacked subject matter jurisdiction to hear the case.3

The Commission agreed and granted DHS’s motion to dismiss.

“A motion to dismiss for lack of subject matter jurisdiction falls within the purview

of Tenn. R. Civ. P. 12.02(1).” Redwing v. Catholic Bishop for Diocese of Memphis, 363

S.W.3d 436, 445 (Tenn. 2012). “We review a dismissal by the Claims Commission under

Tenn. R. Civ. P[.] 12.02(1) . . . de novo with no presumption of correctness.” Harris, 2014

WL 1887302, at *2 (citing Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000);

Conley v. State, 141 S.W.3d 591, 594-95 (Tenn. 2004)).

“[S]ubject matter jurisdiction refers to the power of a court to adjudicate a

controversy.” Church of God in Christ, Inc. v. L.M. Haley Ministries, Inc., 531 S.W.3d

146, 156 (Tenn. 2017) (citing Word v. Metro Air Servs., Inc., 377 S.W.3d 671, 674 (Tenn.

2012)). When a party challenges the existence of subject matter jurisdiction, the burden is

3

DHS also filed its motion under Rule 12.02(6), arguing that Claimant failed to state a claim for

which relief could be granted. However, that portion of DHS’s motion was not the basis for the

Commission’s ruling and is not pertinent to this appeal.

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on the plaintiff to establish that the court has jurisdiction to hear the case. Church of God

in Christ, Inc., 531 S.W.3d at 161 (citing Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn.

Ct. App. 2006)); Redwing, 363 S.W.3d at 445.

In 2017, the Supreme Court clarified the standard for reviewing a challenge to

subject matter jurisdiction. In Church of God in Christ, Inc. v. L.M. Haley Ministries, Inc.,

the court stated that a party “may take issue with a court’s subject matter jurisdiction using

either a facial challenge or a factual challenge.” 531 S.W.3d at 160 (quoting Redwing, 363

S.W.3d at 445). “A facial challenge attacks the complaint itself and asserts that the

complaint, considered as a whole, fails to allege facts showing that the court has subject

matter jurisdiction to hear the case.” Id. In contrast:

a factual challenge admits that the alleged facts, if true, would establish

subject matter jurisdiction, but it attacks the sufficiency of the evidence to

prove the alleged jurisdictional facts. When resolving a factual attack on

subject matter jurisdiction, a court may consider matters outside the

pleadings, such as affidavits or other documents. Furthermore, motions

challenging subject matter jurisdiction are not converted to summary

judgment motions when matters outside the pleadings are considered or

when disputes of material fact exist. Rather, courts presented with such

motions must weigh the evidence, resolve any factual disputes, and

determine whether subject matter jurisdiction exists.

Id. (citations omitted).

DHS’s motion to dismiss was a factual challenge to whether the Commission had

subject matter jurisdiction in this case. In its motion and accompanying materials, DHS

claimed that there was insufficient evidence to prove the existence of a written contract. It

maintained that it never executed an agreement that entitled Claimant to benefit payments.

Clearly, DHS challenged the sufficiency of the evidence. Further, DHS continues to

present this argument on appeal, denying the existence of the Agreement. Accordingly,

we shall review DHS’s motion to dismiss as a factual challenge to whether the Commission

had subject matter jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(L).

Claimant maintains that the Commission has jurisdiction to hear his breach of

contract claim under section 9-8-307(a)(1)(L) because he satisfied the requirements of

Tennessee Rule of Civil Procedure 10.03 when he filed his complaint. Rule 10.03 states

that when the foundation of a claim is the existence of a written instrument, “a copy of such

instrument or the pertinent parts thereof shall be attached to the pleading as an exhibit

unless the instrument is . . . in the possession of the adverse party and this fact is stated in

the pleading.” Although Claimant did not attach a copy of the alleged Agreement to his

complaint, he attempted to satisfy the exception to Rule 10.03 by stating that DHS (through

Mr. McClyde) retained a copy of the Agreement. However, the trial court did not dismiss

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the complaint simply due to Rule 10.03. “In assessing factual challenges to subject matter

jurisdiction at the motion to dismiss stage, a court must keep in mind that the plaintiff bears

the ultimate burden of proving facts establishing the court’s jurisdiction over the case.”

Staats, 206 S.W.3d at 543. In that case, “[i]f a defendant has filed affidavits or other

competent evidentiary materials challenging the plaintiff’s jurisdictional allegations, the

plaintiff may not rely on the allegations of the complaint alone but instead must present

evidence by affidavit or otherwise that makes out a prima facie showing of facts

establishing jurisdiction.” Id.

Because DHS presented a factual challenge to subject matter jurisdiction, Claimant

could “not rely on the allegations of [his] complaint alone” or “conclusory allegations” to

establish jurisdiction. Id. (quoting Chenault v. Walker, 36 S.W.3d 45, 56 (Tenn. 2001)).

Despite DHS presenting a factual challenge to subject matter jurisdiction in its motion to

dismiss, Claimant did not provide an alleged copy of the Agreement until after the

Commission granted DHS’s motion.

As described in its written order of dismissal, the Commission reviewed the

evidence presented by the parties to determine whether it had subject matter jurisdiction

under section 9-8-307(a)(1)(L). The only relevant evidence presented to the court at this

time were competing affidavits submitted by Claimant and Mr. McClyde. In the absence

of a copy of a written instrument, the Commission relied on the affidavit of Mr. McClyde

to determine that there was no proof of a written agreement between the parties. As a

result, the Commission determined that it did not have subject matter jurisdiction to hear

Claimant’s breach of contract claim.

Based on this Court’s review of the record, we agree with the Commission’s

decision to grant DHS’s motion to dismiss. The only potential evidence of a written

agreement was Claimant’s affidavit that claimed he executed the Agreement with Mr.

McClyde on October 4, 2017, and that Mr. McClyde retained a copy of the Agreement.

Presented with a factual challenge to subject matter jurisdiction, the Commission correctly

considered Mr. McClyde’s competing affidavit in resolving this factual dispute. See

Church of God in Christ, Inc., 531 S.W.3d at 160 (stating that the court “must weigh the

evidence” and “resolve any factual disputes” when presented with a factual challenge to

subject matter jurisdiction). It was Claimant’s burden to affirmatively establish that the

Commission had subject matter jurisdiction. See Church of God in Christ, Inc., 531

S.W.3d at 161; Redwing, 363 S.W.3d at 445. However, Claimant failed to provide

sufficient evidence to prove the existence of the Agreement that would enable him to bring

a claim under section 9-8-307(a)(1)(L).

Based on our foregoing discussion, we agree with the Commission’s decision to

grant DHS’s motion to dismiss under Tennessee Rule of Civil Procedure 12.02(1).

Claimant failed to provide sufficient proof a written contract to support his breach of

contract claim. Therefore, the Commission lacked subject matter jurisdiction to hear

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Claimant’s complaint under Tennessee Code Annotated section 9-8-307(a)(1)(L).4

Claimant asserts that even if the Commission lacked subject matter jurisdiction to

hear his complaint, it should have transferred the case to the board of claims. However,

Claimant did not include this argument as an issue in his brief. Therefore, any discussion

on the issue is waived. See Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Appellate

review is generally limited to the issues that have been presented for review.”).

IV. CONCLUSION

For the reasons stated herein, the judgment of the Commission is hereby affirmed.

This cause is remanded for further proceedings consistent with this opinion. Costs of this

appeal are taxed to the appellant, Anthony D. Herron, Jr., for which execution may issue if

necessary.

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CARMA DENNIS MCGEE, JUDGE

4

We recognize that Claimant did eventually provide an alleged copy of the Agreement after the

Commission granted DHS’s motion to dismiss. However, DHS vehemently asserted that the copy provided

by Claimant was a forged document. Even assuming arguendo that the copy provided by Claimant is a

genuine copy of the Agreement, Claimant failed to present this evidence with his complaint or in defense

to DHS’s motion to dismiss. Meaning, the Commission had no way of considering it as potential evidence

when it considered whether it had subject matter jurisdiction over the case. The sole issue presented to this

Court on appeal is whether the Commission properly granted DHS’s motion to dismiss because it lacked

subject matter jurisdiction. As a result, any potential post hoc evidence of the Agreement is irrelevant to

our analysis.

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