                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 4, 2006 Session

 ALEXANDER C. WELLS v. TENNESSEE BOARD OF REGENTS, ET AL.

                    Appeal from the Chancery Court for Davidson County
                       No. 95-2144-III   Carol McCoy, Chancellor


                No. M2005-00938-COA-R3-CV - Filed on September 27, 2006


Following termination of his employment, a professor at Tennessee State University prevailed in this
protracted tenure termination proceeding. On remand to Chancery Court following a successful
appeal, the professor filed a Tenn. R. Civ. P. 60.02 motion for relief from the pre-appeal judgment
to assert a claim for back pay. The Chancellor granted relief and awarded back pay, which the
defendants challenge on two grounds. They contend the court abused its discretion by awarding Rule
60 relief, and because back pay is not specifically authorized by statute, an award of back pay
violates the sovereign immunity doctrine. Finding no error, we affirm.

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

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN , J., joined.
PATRICIA J. COTTRELL, J., filed a dissenting opinion.

Paul G. Summers, Attorney General and Reporter; and Brandy M. Gagliano, Assistant Attorney
General, for the appellants, Tennessee Board of Regents, Tennessee State University, and James
Hefner.

Phillip L. Davidson, Nashville, Tennessee, for the appellee, Alexander C. Wells.

                                             OPINION

       Alexander C. Wells was a tenured professor at Tennessee State University in 1990 when a
student filed a complaint accusing him of sexual harassment. Following an internal investigation,
the investigating officer at the university determined there was sufficient evidence to find that
Professor Wells violated the university’s sexual harassment policy. Professor Wells appealed that
finding. An administrative law judge conducted a full evidentiary hearing and determined that
Professor Wells violated the university’s sexual harassment policy. That decision was then
submitted to the university president, who upheld the finding.

        Thereafter, tenure termination proceedings were initiated. The university’s tenure committee
ruled that Professor Wells’s tenure should be terminated. Professor Wells appealed the decision of
the tenure committee to the university president, who approved the committee’s decision. Professor
Wells then appealed the university’s decision to the Tennessee Board of Regents (Board).
Chancellor Charles E. Smith conducted a review after which he concurred with the university’s
decision. Professor Wells appealed the Chancellor’s decision to the Board, which denied the appeal.
Following the Board’s decision, Professor Wells initiated this action by filing a Petition for Review
with the Davidson County Chancery Court. The Tennessee Board of Regents, Tennessee State
University, and James Hefner, President of the university, were the named defendants. The
Chancery Court conducted a hearing following which it reversed the Board’s decision to terminate
Professor Wells. An order to that effect was entered August 17, 1998. The defendants appealed.
Ultimately, the Tennessee Supreme Court affirmed the decision of the Chancery Court, following
which the case was remanded.

       On remand, Professor Wells filed a Rule 60.02(5) Motion for Relief from the pre-appeal
order. The purpose of the motion was to enable him to assert a claim for back pay for the time he
was wrongfully terminated. The Chancellor granted the Rule 60 motion and awarded Professor
Wells back pay plus prejudgment interest.

        The defendants present two issues on appeal. One, they contend the court abused its
discretion by granting Professor Wells’ motion for Rule 60 relief. Two, they contend the award of
back pay, which is not specifically authorized by statute, violates the sovereign immunity doctrine.

                                  TENN . R. CIV . P. 60.02 RELIEF

        The function of Tenn. R. Civ. P. 60.02 is "to strike a proper balance between the competing
principles of finality and justice." Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976). It is "an
escape valve from possible inequity that might otherwise arise from the unrelenting imposition of
the principle of finality imbedded in our procedural rules." Thompson v. Firemen's Fund Ins. Co.,
798 S.W.2d 235, 238 (Tenn. 1990). Tenn. R. Civ. P. 60.02 provides in part:

       On motion and upon such terms as are just, the court may relieve a party or the
       party's legal representative from a final judgment, order or proceeding for the
       following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud
       (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
       misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been
       satisfied, released or discharged, or a prior judgment upon which it is based has been
       reversed or otherwise vacated, or it is no longer equitable that a judgment should
       have prospective application; or (5) any other reason justifying relief from the
       operation of the judgment.

        A motion for relief pursuant to Tenn. R. Civ. P. 60.02 addresses itself to the sound discretion
of the trial judge. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Our scope of
review of such a decision is to determine if that discretion was abused. Id.; Day v. Day, 931 S.W.2d
936, 939 (Tenn. Ct. App. 1996).


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       When we review a trial court's decision under the abuse of discretion standard, we will
uphold the trial court's ruling “so long as reasonable minds can disagree as to the propriety of the
decision made.” Franklin Capital Assocs., L.P. v. Almost Family, Inc., 194 S.W.3d 392, 405 (Tenn.
Ct. App. 2005)(citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

         Considering the equities of this case, we have concluded reasonable minds could disagree
as to the propriety of the Chancellor’s decision. Accordingly, we find no error with the Chancellor’s
exercise of her discretion by avoiding the possible inequity that may have arisen had Professor Wells
been procedurally deprived of the opportunity to assert a claim for back pay. Therefore, we affirm
the Chancellor’s discretionary decision to grant Rule 60.02(5) relief to seek back pay.

                                      SOVEREIGN IMMUNITY

        This case comes to us following the determination that Professor Wells was wrongfully
terminated as a tenured professor at Tennessee State University, for which he was awarded back pay,
benefits, and prejudgment interest for the period of time he was wrongfully terminated. The
defendants contend the award violates the sovereign immunity doctrine.

        The relevant statute, Tenn. Code Ann. § 49-8-304, does not expressly provide for the award
of back pay in the event a university faculty member who had been awarded tenure is “vindicated
or reinstated” following a review of the professor’s dismissal or suspension for cause. In pertinent
part the statute provides, “a faculty member who has been awarded tenure, and who has been
dismissed or suspended for cause, may obtain de novo judicial review of the final decision. . . .”
Tenn. Code Ann. § 49-8-304(a).

        The sovereign immunity doctrine provides that the state, as a sovereign entity, is immune
from suit except to the extent that it consents to be sued. Brown v. State, 783 S.W.2d 567, 571
(Tenn. Ct. App. 1989)(citing Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777 (1965)).
The right to file a cause of action against the state originates from the Constitution of Tennessee,
which states “[s]uits may be brought against the State in such manner and in such courts as the
Legislature may by law direct.” Tenn. Const. art. I, § 17. “A statute permitting suit against the State
must be strictly construed, and jurisdiction cannot be enlarged by implication.” Brown, 783 S.W.2d
at 571 (citing Stokes v. Univ. of Tenn., 737 S.W.2d 545 (Tenn. Ct. App. 1987)).

         The statute at issue does not expressly provide a remedy for back pay and benefits; thus, it
would appear that Professor Wells’ claim for back pay and benefits is barred by the sovereign
immunity doctrine. That argument fails, however, in light of the Supreme Court’s holding in State
ex rel. Chapdelaine v. Torrence, 532 S.W.2d 542, 550 (Tenn. 1976). In Chapdelaine, the Supreme
Court was faced with the same argument presented here, that an award of back pay to this professor
violated principles of sovereign immunity. The Chancellor awarded the tenured professor the sum
of $12,500 for back pay, which the Supreme Court found proper. As the Court explained,




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       While the Chancellor treated this as “damages”, we think that is an unfortunate
       characterization. The word “damages” connotes a recovery for hurt, harm or injury
       inflicted upon an injured party. We are not dealing here with damages in the
       conventional sense of the word. The award was simply an enforced restitution of
       unpaid wages to the extent they were not mitigated. In common parlance this was an
       award for back pay.

Chapdelaine, 532 S.W.2d at 550. The Court went on to defuse the sovereign immunity defense,
explaining:

       We are not impressed with the insistence that this action against these defendants, as
       state officials engaged in the pursuit of their official duties, is a suit against the state
       and, therefore, is barred by sovereign immunity.

               Article 1, Section 17 of the Constitution of Tennessee provides in pertinent
       part: Suits may be brought against the State in such manner and in such courts as the
       Legislature may be law direct. (emphasis in original)

              Section 49-1417 T.C.A. gives the Chancery Court jurisdiction of actions
       brought by tenured teachers to review their dismissal.

               Cities and counties are arms of the state and such immunity as they claim is
       wholly derivative from the state itself, and this Court has consistently approved
       awards of back pay as to teachers in city and county school systems. See e.g., Jeffers
       v. Stanley, supra; Wagner v. Elizabethton City Board of Education, 496 S.W.2d 468
       (Tenn. 1973).

Chapdelaine, 532 S.W.2d at 550. Upon the filing of a Petition to Rehear by the state, the Supreme
Court reaffirmed its holding concerning the sovereign immunity defense, explaining:

                The State's petition insists that we failed to consider s 20-1702 T.C.A. relating
       to the sovereign immunity of the State. Section VII of the main opinion discusses this
       issue. We reiterate that “we are not impressed with the insistence (that this) is a suit
       against the State and, therefore, is barred by sovereign immunity.”

               The college and university teachers' tenure law, as incorporated in § 49-1421
       T.C.A., and the regulations promulgated pursuant thereto, would be “as sounding
       brass, or a tinkling cymbal”, if it did not carry with it the coordinate right of a tenured
       teacher to seek back pay in wrongful dismissal cases.

Chapdelaine, 532 S.W.2d at 551.




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        The defendants have correctly noted that the statute at issue in Chapdelaine was repealed in
1976. Ordinarily, that would be significant. We note, however, the statute was repealed only to be
revived as part of a broader statutory scheme. That scheme pertained to the implementation of a
State University and Community College System, with the governance, management and control of
the state universities and community colleges vested in one of the defendants, the Board of Regents.
Tenn. Code Ann. § 49-8-101, et. seq. The caption of Senate Bill No. 2101, the 1976 legislation
repealing the Chapdelaine statute, explained it was

        AN ACT to repeal Tennessee Code Annotated, Sections 49-1421 and 49-1422; to
        authorize the Board of Regents to promulgate a tenure policy for faculty at
        institutions withing the State University and Community College System of
        Tennessee; to authorize the Board to define the nature of tenure and rights and
        responsibilities thereunder; . . . to authorize the Board to provide for adequate cause
        for termination of faculty with tenure, and the procedures for such termination ‘ and
        to provide for judicial review. (emphasis added)

1976 Tenn. Pub. Acts 1275.

        As we know from reading Chapdelaine, the former statute authorized and required the state
board of education – the predecessor to the Board of Regents – to establish a system of tenure for
college and university teachers and promulgate rules and regulations for a tenure system.
Furthermore, that statute provided that the teacher “shall be entitled to a judicial review of the action
of the board for the same purposes and in the same manner provided by s 49-1417.” Chapdelaine,
532 S.W.2d at 545. (emphasis added) The new statutory scheme provided that a faculty member
who had been awarded tenure, and who was dismissed for cause, may obtain similar relief to that
available in the old statute, that being de novo judicial review by filing a petition in chancery court.
The statute in effect today is also substantially similar. It reads:

        A faculty member who has been awarded tenure, and who has been dismissed or
        suspended for cause, may obtain de novo judicial review of the final decision by
        filing a petition in a chancery court. . . .

Tenn. Code Ann. § 49-8-304(a).

         The defendants also point to Tenn. Code Ann. § 49-5-511, which applies to teachers in the
elementary and secondary schools, and specifically provides for the award of back pay in the event
that a teacher is “vindicated or reinstated” as a result of an investigation into the suspension of the
teacher by the director of schools. Tenn. Code Ann. § 49-5-511(a)(3). They contend Tenn. Code
Ann. § 49-5-511 shows a legislative intent contrary to the holding in Chapdelaine. We are
unpersuaded by the argument for two reasons. One, the statute does not pertain to college and
university professors. Two, we view the defendants suggestion as at best faint evidence of legislative
intent and are certain the General Assembly would have been more direct. It has had thirty years to
express a contrary intent, and we find it has declined to do so.


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       The Chapdelaine court awarded the tenured professor back pay when faced with a
substantially similar statute as presented here. We find no uncertainty in the Supreme Court’s
holding in Chapdelaine, and we are obliged to follow the lead of the Tennessee Supreme Court.

       The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal
assessed against the defendants.



                                                      ___________________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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