                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    August 20, 2003 Session


                   STEVE CONKLIN v. STATE OF TENNESSEE

                Appeal from the Claims Commission of the State of Tennessee
                   No. 20200755     Vance W. Cheek, Jr., Commissioner

                                   FILED OCTOBER 27, 2003

                                  No. E2002-03130-COA-R3-CV


Approximately seventeen years ago, Steve Conklin (Plaintiff”) was convicted by a jury in the
McMinn County Criminal Court of raping a child under the age of thirteen years. Plaintiff’s
conviction was affirmed by the Court of Criminal Appeals in 1987. Plaintiff was represented by
appointed counsel, Fredric J. Chester, Jr. (“Chester”). Chester represented Plaintiff both at trial and
on the direct appeal. Many years later, Plaintiff was granted post-conviction relief based on
ineffective assistance of counsel and a new trial was ordered. The State of Tennessee (“State”)
declined to retry Plaintiff, who then was set free. Plaintiff filed this lawsuit in the Claims
Commission (“Commission”) against the State seeking monetary compensation for the alleged legal
malpractice of Chester which Plaintiff claims resulted in his being imprisoned improperly for
fourteen and one-half years. According to Plaintiff, Chester should be deemed a state employee
because he was appointed by the court. The State disagreed and filed a motion to dismiss the
complaint. The State argued that the Commission lacked subject matter jurisdiction over Plaintiff’s
legal malpractice claim because Chester was not a “state employee”. The Commission dismissed
the lawsuit solely because Plaintiff failed to respond timely to the State’s motion to dismiss. We
hold Chester was not an employee of the state and, therefore, the Commission lacked subject matter
jurisdiction over Plaintiff’s legal malpractice claim. The result reached by the Commission is
affirmed.

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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, J.,
joined. HOUSTON M. GODDARD , P.J., not participating.

Charles P. Dupree, Chattanooga, Tennessee, for the Appellant Steve Conklin.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather
C. Ross, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee.
                                                        OPINION

                                                      Background

                 Plaintiff was prosecuted in the McMinn County Criminal Court for the crime of
raping a child under the age of thirteen years. Plaintiff could not afford counsel and Chester was
appointed to represent Plaintiff. Chester was employed at the local law firm of Higgins, Biddle &
Chester. Plaintiff was convicted of aggravated rape (sexual penetration of a child under the age of
thirteen) after a jury trial and sentenced to twenty-five years in prison. A direct appeal was taken and
in July 1987, the Court of Criminal Appeals affirmed Plaintiff’s conviction and the twenty-five year
sentence. See Conklin v. State, No. 146, 1987 Tenn. Crim. App. LEXIS 2284 (Tenn. Crim. App.
July 22, 1987), perm. to appeal dismissed Mar. 14, 1988. Chester also represented Plaintiff on the
direct appeal of the aggravated rape conviction.

                 After Plaintiff’s conviction was affirmed by the Court of Criminal Appeals, Plaintiff
set about filing numerous petitions for post-conviction relief, with the most recent petition alleging
ineffective assistance of counsel. While the record on appeal does not contain a copy of this petition
or the criminal court’s reasoning as to why Plaintiff was entitled to relief, we know the petition was
successful and on November 17, 2000, Plaintiff’s conviction was set-aside and a new trial was
ordered. For reasons not explained in the record before this Court on appeal, the State declined to
retry Plaintiff and the charge against him was voluntarily dismissed.1 Plaintiff thus became a “free
man.”

                Plaintiff filed his claim with the Division of Claims Administration alleging the State
was liable to him for Chester’s legal malpractice. Plaintiff’s claim was transferred to the Claims
Commission where Plaintiff filed his Complaint for Damages. Plaintiff claims that because Chester
was appointed by the criminal court to represent him, Chester is to be considered a state employee
for any legal malpractice claims arising out of that court appointed representation. According to
Plaintiff, Chester’s ineffective assistance resulted in Plaintiff’s being improperly imprisoned from
May 30, 1986, until November 17, 2000. Plaintiff seeks damages from the State in the amount of
$1.45 million dollars, representing $100,000 for each year Plaintiff was in prison.

               On September 23, 2002, the State filed a motion to dismiss the complaint. The State
argued Chester was a partner in the law firm of Higgins, Biddle & Chester, and was not a state
employee. The State argued the Commission lacked subject matter jurisdiction because Chester was
not a state employee when he represented Plaintiff in the criminal proceedings, and, therefore, the
complaint should be dismissed. Plaintiff never responded to the State’s motion to dismiss.


         1
            Contrary to Plaintiff’s assertions, the State’s decision not to retry him is not equivalent to a determination that
Plaintiff was not guilty of the crime with which he was charged. There are many possible reasons why the State may have
decided not to retry Plaintiff, some of which have no bearing on his actual guilt or innocence. For example, evidence
may have become stale after fourteen and one-half years, or the alleged victim may have refused to reopen this traumatic
event from her past, etc.

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                On October 29, 2002, the Commission dismissed the complaint because Plaintiff
failed to respond to the State’s motion to dismiss. In so doing, the Commission stated:

                        Pursuant to Tennessee Claims Commission Rule No. 0310-1-
               1-.01(5)(c), failure to make a timely response to a motion essentially
               constitutes a waiver of any objection to the motion. Responses to
               motions shall be made no later than fifteen (15) days after service of
               the motion, except that in case of motions for summary judgment the
               time shall be thirty (30) days after service of the motion. The State
               filed its Motion to Dismiss on September 23, 2002. A response to the
               State’s Motion to Dismiss has not been filed with the Clerk of the
               Tennessee Claims Commission or received by the Commissioner’s
               Office as of the date of this Order.…

                   For the reasons stated above, the Commissioner hereby
               ORDERS that this claim be and is DISMISSED.

                After the complaint was dismissed, Plaintiff filed a motion pursuant to Tenn. R. Civ.
P. 60.02 seeking to set aside the order of dismissal. Plaintiff claimed no response was filed because
his attorney had been attempting to contact the State’s attorney to request an extension of time in
which to respond to the motion. The Commission denied Plaintiff’s motion to set aside the order
of dismissal, concluding Plaintiff’s counsel’s attempt to contact opposing counsel was not a
sufficient basis under Rule 60.02 in which to set aside the judgment. The Commission also stated
that if counsel needed an extension of time to respond to the motion to dismiss, “the proper party to
which he should have sought the extension should have been the Commissioner.” Plaintiff appeals,
claiming the Commission erred when it dismissed his complaint.

                                            Discussion

               Whether the Commission has subject matter jurisdiction over the allegations in
Plaintiff’s complaint is a question of law. With respect to legal issues, our review is conducted
“under a pure de novo standard of review, according no deference to the conclusions of law made
by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706,
710 (Tenn. 2001). As recently stated by our Supreme Court in Northland Ins. Co. v. State, 33
S.W.3d 727 (Tenn. 2000):

                       A motion to dismiss for lack of subject matter jurisdiction
               falls under Tennessee Rule of Civil Procedure 12.02(1). 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). Subject matter jurisdiction involves the


                                                -3-
               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). 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.
               See Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                        Article I, section 17 of the Tennessee Constitution provides
               that "[s]uits may be brought against the State in such manner and in
               such courts as the Legislature may by law direct." This constitutional
               provision reflects sovereign immunity, the notion that a sovereign
               governmental entity cannot be sued in its own courts without its
               consent. See State v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860
               (1937); Tenn. Code Ann. § 20-13-102 ("No court in the state shall
               have any power, jurisdiction, or authority to entertain any suit against
               the state ... with a view to reach the state, its treasury, funds, or
               property ..."). As a general interpretive matter, this Court has held
               that the principle of sovereign immunity requires that legislation
               authorizing suits against the state must provide for the state's consent
               in "plain, clear, and unmistakable" terms. Cook, 171 Tenn. at 611,
               106 S.W.2d at 861; see also Beare Company v. Olsen, 711 S.W.2d
               603, 605 (Tenn. 1986). We must therefore carefully analyze the
               statute granting jurisdiction to the Tennessee Claims Commission,
               which this Court has previously held creates a "sweeping procedure
               for filing monetary claims against the state." Hembree v. State, 925
               S.W.2d 513, 516 (Tenn. 1996).

Northland, 33 S.W.3d at 729.

                In the present case, Plaintiff argues that even if he did not respond timely to the
State’s motion to dismiss, the Commission nevertheless was required to determine whether the
requested relief was appropriate under the law and facts. Plaintiff then argues that because his court
appointed attorney was a state employee, the motion to dismiss should not have been granted
regardless of whether a response to the motion to dismiss was filed.

                The State argues that the Commission was entitled to deem Plaintiff’s lack of
response to the motion to dismiss as “an [i]ndication that he did not [o]ppose” having his case
dismissed. Alternatively, the State argues that the complaint was subject to dismissal because
Plaintiff’s court appointed attorney was not a state employee and, consequently, the Commission
lacked subject matter jurisdiction. In other words, the State argues that had the Commission actually



                                                 -4-
reached the merits of its motion to dismiss, the claim would have been dismissed anyway. We first
will address this alternative argument of the State.

               Tenn. Code Ann. § 9-8-307(a)(1)(D) waives the state’s immunity for legal
malpractice actions when the malpractice is committed by a state employee and there is a
professional/client relationship. The statute provides:

                      (a)(1) The commission or each commissioner sitting
               individually has exclusive jurisdiction to determine all monetary
               claims against the state based on the acts or omissions of "state
               employees," as defined in § 8-42-101(3), falling within one (1) or
               more of the following categories:

                                              ****

                       (D) Legal … malpractice by a state employee; provided, that
               the state employee has a professional/client relationship with the
               claimant; ….

               The issue of whether a court appointed attorney is considered a state employee is
specifically addressed in Tenn. Code Ann. § 8-42-103. In general, this statutory section gives the
attorney general discretion to provide legal representation to state employees who have been sued
because of certain acts or omissions committed within their scope of employment. The statute
provides unequivocally that court appointed attorneys are to be considered state employees, but only
for purposes of the attorney general having discretion to provide legal representation when a court
appointed attorney is sued, assuming the other statutory requirements are met. In relevant part, the
statute provides:

                      (a) When a civil action for damages is commenced in any
               court by any person against any state employee as defined in this
               chapter for any acts or omissions of the state employee within the
               scope of the employee's employment, except for willful, malicious,
               or criminal acts or omissions or for acts or omissions done for
               personal gain, the attorney general and reporter has the discretion to
               provide representation to the employee.…

                      (b) For the exclusive purpose of this section, "state employee"
               also includes attorneys appointed by a court, or other agency
               authorized by law to make such appointments, to represent an
               indigent when a civil action for damages is commenced against such
               attorney for any act or omission in the course of representing such
               indigent. Notwithstanding any provision of law to the contrary, such



                                                -5-
                attorney shall not be considered a state employee for any other
                purpose including, but not limited to, §§ 9-8-112 and 9-8-307.

Tenn. Code Ann. § 8-42-103 (emphasis added).

                 We believe the intent of the legislature is quite clear from the statute itself. Tenn.
Code Ann. § 8-42-103(b) clearly states that a court appointed attorney is not considered a “state
employee” for purposes Tenn. Code Ann. § 9-8-307, the statutory provision which waives the state’s
sovereign immunity in certain specific instances and which confers subject matter jurisdiction on the
Commission to resolve those claims. Accordingly, the Commission has no subject matter
jurisdiction to hear a claim against the State for legal malpractice arising out of the acts or omissions
of a court appointed attorney. Notwithstanding the foregoing, if a legal malpractice action is brought
against a court appointed attorney, as opposed to the state, arising out of acts or omissions occurring
during the court appointed representation, then the attorney general has discretion to provide that
attorney with legal representation. The Western Section of this Court reached this very same
conclusion in Taylor v. State, No. 02A01-9508-BC-00229, 1996 Tenn. App. LEXIS 389 (Tenn. Ct.
App. July 3, 1996), no appl. perm. appeal filed. In Taylor, we affirmed the dismissal of a legal
malpractice lawsuit filed with the Commission against the State of Tennessee arising out of alleged
acts or omission of a court appointed attorney. We concluded the Commission lacked subject matter
jurisdiction over such a claim, reasoning as follows:

                The crux of Title 8, Chapter 42 of the Code is found in T.C.A. §
                8-42-103, entitled "Defense Counsel for State Employees." This
                section states that under certain defined conditions, a state employee
                who is sued in a civil action for damages for any act or omission in
                the course of his employment will be provided defense counsel by the
                state. T.C.A. § 8-42-103(b) states in simple terms that a
                court-appointed attorney assigned to represent an indigent who is
                thereafter sued by the indigent for damages arising as a result of this
                representation is a "state employee," and may avail himself of defense
                counsel provided by the state. As noted, T.C.A. § 8-42-103(b)
                specifically provides that such attorney will not be considered a state
                employee for any other purpose, including, but not limited to, T.C.A.
                § 9-8-307, which delineates the jurisdiction of the Tennessee Claims
                Commission.

                       The order of the commissioner dismissing claimant's suit is
                affirmed.…

Taylor, 1996 Tenn. App. LEXIS 389, at **3, 4.

               In the present case, we agree with the State that the Commission has no subject matter
jurisdiction over the allegations contained within Plaintiff’s complaint because Plaintiff’s court


                                                  -6-
appointed attorney was not a state employee, and for this reason the complaint was subject to
dismissal. Even though the Commission never decided this issue, it nevertheless reached the correct
result when it dismissed the complaint because Plaintiff did not respond to the State’s Motion to
Dismiss . We affirm the Commission’s judgment dismissing the complaint, although for the reasons
discussed above. See Basily v. Rain, Inc., 29 S.W.3d 879, 884 n.3 (Tenn. Ct. App. 2000)(“We may
affirm a judgment upon different grounds than those relied on by the trial court when the trial court
has reached the correct result.”). The remaining issue of whether the Commission erred in
dismissing the complaint solely because Plaintiff did not file a timely response is pretermitted.

                                            Conclusion

                The judgment of the Claims Commission is affirmed, and this cause is remanded to
the Commission for further proceedings as are necessary, if any, consistent with this Opinion, and
for collection of the costs below. The costs on appeal are assessed against the Appellant Steve
Conklin and his surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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