Abraham Best v. City of Memphis

09/15/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2021

ABRAHAM BEST v. CITY OF MEMPHIS

Appeal from the Circuit Court for Shelby County

No. CT-4770-19 Mary L. Wagner, Judge

No. W2021-00020-COA-R3-CV

Former firefighter who alleged miscalculation of his Line of Duty disability benefits

brought an action for breach of contract, negligence, and negligent infliction of emotional

distress against the City of Memphis. In this appeal from the trial court’s dismissal of the

complaint pursuant to Tennessee Rule of Civil Procedure 12.02(1) we affirm the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which ANDY D. BENNETT,

J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, Abraham Best.

Chandley Hayes-Crawford and Dennis P. Hawkins, Memphis, Tennessee, for the

appellee, City of Memphis.

OPINION

I. BACKGROUND

The following facts are undisputed. On September 14, 2016, Abraham Best

(“Plaintiff”), a firefighter employed by the City of Memphis (“City”), injured his right

ankle and foot while at work. Plaintiff filed an application for Line of Duty disability

(“LOD”) benefits. The LOD benefits were initially denied by the Board of

Administration City of Memphis Retirement System (“Pension Board”). Plaintiff timely

appealed the decision. The matter was referred to an Administrative Law Judge for a

hearing. The administrative record is not included in the appellate record, save the ALJ’s

order entered May 9, 2019, which indicates that “[a] hearing consistent with the contested

case procedures of the Uniform Administrative Procedures Act, as adopted by the State

of Tennessee, was held in this matter on February 20, 2019 after which both [Plaintiff]

and [the City] submitted post-hearing briefs . . . and closing argument was heard on April

25, 2019.” The ALJ found that Plaintiff was “entitled to LOD benefits” from the City.

On October 29, 2019, Plaintiff filed in the Circuit Court (“trial court”) a complaint

alleging that the City delayed the payment of his LOD benefits, miscalculated the date

from which back pay should begin,1 and “improperly mov[ed] [his] official retirement

date.” Plaintiff asserted claims for breach of contract, negligence, and negligent

infliction of emotional distress. Plaintiff alleged that prior to filing a complaint in the

trial court, he communicated with “the Benefits Department,” and “the Payroll

Department” in an effort to resolve his grievance. Plaintiff further alleged that certain

individuals advised that the “Pension Department was responsible.” By email dated

August 28, 2019, Plaintiff allegedly “emailed [the City], notifying the Payroll

Department, the Benefits Department, and the chief of the fire department.” In the email,

Plaintiff allegedly “informed [the City] that he would have to take legal action to remedy

the situation if necessary.”

On December 4, 2019, the City answered2 the complaint and moved to dismiss the

complaint for lack of subject matter jurisdiction under Tennessee Rule of Civil Procedure

12.02(1). In its motion, the City stated that the Pension Board acted on the ALJ’s May 9,

2019 order “on June 27, 2019 and issued the first payment to Plaintiff on July 31, 2019

covering the July 16–31, 2019 pay period.” The City argued that because Plaintiff’s

grievance was based solely on the Pension Board’s actions and because the Pension

Board is an administrative agency of the City, Plaintiff’s filing seeking review of the

Pension Board’s actions should have been filed in Chancery Court within sixty days of

the ALJ’s order. The City contended that dismissal based upon lack of subject matter

jurisdiction was required because Plaintiff’s complaint was untimely filed in the wrong

court. In a brief response, Plaintiff argued that because his “Complaint is based on the

conduct that occurred when [the City] violated the Pension Board decision,” it was

properly filed in the trial court instead of in Chancery Court.

The trial court heard the City’s motion to dismiss on November 24, 2020. The

record does not contain a transcript of this hearing, but from the trial court’s final order

entered December 10, 2020, it appears that the trial court sua sponte dismissed Plaintiff’s

1

The complaint alleges that the City “gave Plaintiff back pay, starting from the date of July 21,

2018.” However, Plaintiff averred that the back pay included in the LOD benefits award should have

been calculated from May 12, 2018.

2

In its answer, the City admitted that Plaintiff’s back pay was calculated from July 21, 2018.

-2-

claims for breach of contract and negligent infliction of emotional distress for failure to

state a claim upon which relief can be granted, pursuant to Tennessee Rule of Civil

Procedure 12.02(6):

The City of Memphis Code of Ordinances states explicitly at § 4-4-5 that

no contract is created between the City and any employee or retiree by

virtue of participation in the retirement system. The breach of contract

claim is dismissed for failure to state a claim upon which relief can be

granted.

The Governmental Tort Liability Act at § 29-20-205(2) states that the

[City’s] immunity from suit is not removed in cases of infliction of mental

anguish. During argument, the Plaintiff conceded and agreed with this

point. The negligent infliction of emotional distress claim is dismissed for

failure to state a claim upon which relief can be granted because the [City]

is immune from suit and immunity cannot be removed.

The trial court also found that it “lack[ed] subject matter jurisdiction over the

cause.” The trial court reasoned as follows:

The gravamen of the Complaint before this Court is a dispute of the

amount, time and manner of payment of Plaintiff’s pension plan benefits.

The Code of Ordinances at § 4-8-7(c) states that the Pension Board shall

determine the amount, manner and time of payment of plan benefits. Based

upon the City Ordinance, Plaintiff must bring these disputes to the Pension

Board. Thereafter, any challenge to the Board’s action must be brought in

the Shelby County Chancery Court under the Uniform Administrative

Procedures Act (“UAPA”) found in the Tennessee Code Annotated. Such

actions must be brought within sixty (60) days. T.C.A. §§ 4-5-

322(b)(1)(A)(i) and (iv).

The Court does not find whether or not Plaintiff’s dispute has yet to be

ruled upon by the Pension Board. If it has not, then exclusive jurisdiction

lies with the Pension Board. If the Pension Board has ruled, then exclusive

jurisdiction is with the Shelby County Chancery Court. This Court,

however, cannot transfer this matter to the Chancery Court because either

(1) it has not yet been considered by the Pension Board, or (2) if the

Pension Board’s decision does address these disputes, then Plaintiff did not

bring his action within sixty (60) days. Because this Court does not have

subject matter jurisdiction, this action must be dismissed.

-3-

Plaintiff appealed.

II. ISSUES

Plaintiff raises one issue: “Whether the trial court erred in granting [the City’s]

motion to dismiss.”

III. STANDARD OF REVIEW

We review de novo a trial court’s dismissal of an action for lack of subject matter

jurisdiction. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712–13 (Tenn. 2012); see also

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (“Since a determination of

whether subject matter jurisdiction exists is a question of law, our standard of review is

de novo, without a presumption of correctness.”).

IV. DISCUSSION

We begin by outlining the legal authority applicable to this appeal. “[S]ubject

matter jurisdiction involves a court’s lawful authority to adjudicate a controversy brought

before it.” Northland Ins. Co., 33 S.W.3d at 729. A court obtains subject matter

jurisdiction from either a statutory or constitutional provision. See Staats v. McKinnon,

206 S.W.3d 532, 542 (Tenn. Ct. App. 2006). “The existence of subject matter

jurisdiction depends on the nature of the cause of action and the relief sought.” Id. (citing

Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)). Therefore, when a court’s subject

matter jurisdiction is challenged, the first step is to “ascertain the nature or gravamen of

the case,” and then to “determine whether the Tennessee Constitution, the General

Assembly, or the common law have conferred on [the court] the power to adjudicate

cases of that sort.” Staats, 206 S.W.3d at 542.

A party may assert either a facial challenge or a factual challenge to the court’s

subject matter jurisdiction. Redwing v. Cath. Bishop for Diocese of Memphis, 363

S.W.3d 436, 445 (Tenn. 2012); see also Staats, 206 S.W.3d at 542. “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.”

Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 S.W.3d 146, 160 (Tenn.

2017) (citing Redwing, 363 S.W.3d at 445–46). 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.” Id. (citing Redwing,

-4-

363 S.W.3d at 446). “Regardless of the manner used, the plaintiff bears the burden of

establishing that the court has subject matter jurisdiction over the case.” Church of God

in Christ, Inc., 531 S.W.3d at 161 (citing Staats, 206 S.W.3d at 543). “The lack of

subject matter jurisdiction is so fundamental that it requires dismissal whenever it is

raised and demonstrated.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480

(Tenn. Ct. App. 1999). An order or judgment entered by a court lacking subject matter

jurisdiction is void. First Am. Tr. Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135,

141 (Tenn. Ct. App. 2001).

Title 4 of the Code of Ordinances, City of Memphis, Tennessee, entitled “Pension

and Retirement System,” provides, in relevant part, as follows:

There is created and established a board of administration which, under the

provisions of this title and the direction of the mayor, shall administer the

plan and the trust fund created by this title.

Code of Ordinances, City of Memphis, Tennessee at § 4-8-1.

The board shall supervise the administration and enforcement of this title

according to the terms and provisions of this title and shall have all powers

necessary to accomplish these purposes, including, without limitation and

in addition to any other powers described in this chapter the right, power,

authority and duty:

A. To construe all terms, provisions, conditions and limitations of

the plan (in all cases, the construction necessary for the plan to

qualify under the applicable provisions of the Code shall control);

B. To determine all questions relating to eligibility;

C. To determine the amount, manner and time of payment of any

plan benefits and to prescribe procedures to be followed by

distributees in obtaining benefits;

...

E. To make a determination as to the right of any person to a

benefit under this title;

Id. at § 4-8-7.

Tennessee Code Annotated section 27-9-114 establishes:

-5-

(b)(1) Judicial review of decisions by civil service boards of a county or

municipality which affects the employment status of a county or city civil

service employee shall be in conformity with the judicial review standards

under the Uniform Administrative Procedures Act, § 4-5-322.

(2) Petitions for judicial review of decisions by a city or county civil

service board affecting the employment status of a civil service employee

shall be filed in the chancery court of the county wherein the local civil

service board is located.

Tenn. Code Ann. § 27-9-114(b)(1) and (2).

Finally, Tennessee Code Annotated section 4-5-322 provides:

(a)(1) A person who is aggrieved by a final decision in a contested case is

entitled to judicial review under this chapter, which shall be the only

available method of judicial review. A preliminary, procedural or

intermediate agency action or ruling is immediately reviewable if review of

the final agency decision would not provide an adequate remedy.

Tenn. Code Ann. § 4-5-322(a)(1). Judicial review of an administrative agency’s action is

within the exclusive jurisdiction of the Chancery Court. Tenn. Code Ann. § 4-5-

322(b)(1)(a)(i) (“Proceedings for review are instituted by filing a petition for review in

chancery court”). When “a petition for judicial review is submitted within the sixty-day

period but is filed with an inappropriate court, the case shall be transferred to the

appropriate court.” Tenn. Code Ann. § 4-5-322(b)(2).

Plaintiff’s brief does not acknowledge, cite to, or develop an argument based on

the foregoing applicable legal authority. Instead, without citation to authority to support

his position, Plaintiff asserts that he “wants the [ALJ’s] Order followed” and that he

“properly filed this matter in Circuit Court, as the Circuit Court is the only court that

would have jurisdiction to hear the matter.” Plaintiff’s argument on the dispositive issue

of the trial court’s subject matter jurisdiction is lacking. “Courts have routinely held that

the failure to make appropriate references to the record and to cite relevant authority in

the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the

issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000); see also Hawkins v. Hart,

86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (“[F]or an issue to be considered on appeal, a

party must, in his brief, develop the theories or contain authority to support the averred

position . . . .”). Although the issue that Plaintiff raises on appeal is subject to waiver, we

will briefly address it.

-6-

As the parties recognize, the board of administration referenced in the above

provisions of the Code of Ordinances, City of Memphis, Tennessee, is commonly

referred to as the Pension Board. Although on its face Plaintiff’s complaint appears to

sound in tort, the allegations solely concern the Pension Board’s calculation and manner

of payment of his LOD benefits following the ALJ’s order to award benefits. Similarly,

on appeal, Plaintiff states that “the basis of [his] lawsuit” is the City’s alleged failure to

provide “all amounts due to him” pursuant to the ALJ’s order awarding LOD benefits.

Plaintiff argues that the Pension Board failed to follow the ALJ’s order. Thus, we affirm

the trial court’s finding that the gravamen of the Complaint is a dispute of the amount,

time, and manner of payment of Plaintiff’s pension plan benefits. Because the Pension

Board is tasked with “determin[ing] the amount, manner and time of payment of any plan

benefits,” Plaintiff was required to formally present the disputes alleged in the complaint

to the Pension Board in the first instance. Code of Ordinances, City of Memphis,

Tennessee at § 4-8-7. Even a generous reading of the complaint shows that Plaintiff did

not do so, and he does not argue otherwise on appeal. Instead, after communicating with

certain individuals in the Payroll Department and Benefits Department, and after

emailing the Chief of the Fire Department, Plaintiff filed a complaint in the trial court.

The Uniform Administrative Procedures Act’s judicial review provision,

Tennessee Code Annotated section 4-5-322, governs judicial review of the Pension

Board’s actions. See Murrell v. Bd. of Admin. City of Memphis Pension & Ret. Sys., No.

W2020-00187-COA-R3-CV, 2021 WL 1233500, at *4 (Tenn. Ct. App. Mar. 31, 2021)

(concluding that “[t]he UAPA is the governing standard” and noting that “the Pension

Board was required to provide a UAPA-compliant contested case hearing” where police

officers alleged that the Pension Board erroneously calculated the amount of their

pension benefits); Marino v. Bd. of Admin. City of Memphis Ret. Sys., No. W2015-00283-

COA-R9-CV, 2015 WL 7169796 (Tenn. Ct. App. Nov. 16, 2015) (holding that the

Pension Board is not exempt from the contested case procedures of the UAPA where

Pension Board denied firefighter’s LOD benefits). In both Murrell and Marino, the

aggrieved parties initiated judicial review of the Pension Board’s action through a filing

in the Chancery Court, where exclusive jurisdiction for such matters lies. Murrell, 2021

WL 1233500, at *1; Marino, 2015 WL 7169796, at *1; Tenn. Code Ann. § 4-5-

322(b)(1)(a)(i). This is what Plaintiff should have done instead of filing in the trial court,

assuming arguendo that Plaintiff was “aggrieved by a final decision in a contested case”

or that he intended to obtain judicial review of a “preliminary, procedural or intermediate

agency action or ruling.” See Tenn. Code Ann. § 4-5-322(a)(1).

We will not address whether the action could have been transferred to the

Chancery Court because Plaintiff does not raise or argue the issue on appeal. See Hodge

v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Appellate review is generally limited to

-7-

the issues that have been presented for review.”); Murray v. Miracle, 457 S.W.3d 399,

403 (Tenn. Ct. App. 2014) (“We will not undertake to search the record and then revise

Plaintiffs’ brief in its entirety so as to create issues of claimed errors by the Trial Court

when the Plaintiffs raise no such specific claimed errors because to do so would have this

Court serve as Plaintiffs’ attorney.”).

We hold that the trial court lacked the subject matter jurisdiction to adjudicate this

case. Accordingly, the trial court’s dismissal of Plaintiff’s complaint pursuant to

Tennessee Rule of Civil Procedure 12.02(1) is affirmed. Because the trial court lacked

the threshold subject matter jurisdiction to adjudicate the action at all, we need not review

the trial court’s dismissal, pursuant to Tennessee Rule of Civil Procedure 12.02(6), of the

breach of contract and negligent infliction of emotional distress claims.

V. CONCLUSION

We affirm the judgment of the trial court. The case is remanded for such further

proceedings as may be necessary and consistent with this opinion. Costs of the appeal

are taxed to the appellant, Abraham Best, for which execution may issue if necessary.

_________________________________

JOHN W. McCLARTY, JUDGE

-8-