                  IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT JACKSON


SCHERING-PLOUGH HEALTHCARE )
PRODUCTS, INC.,                 )
                                )                                         FILED
          Petitioner/Appellant, ) Shelby Chancery No. 106076-2 R.D.
                                )                              January 23, 1998
VS.                             ) Appeal No. 02A01-9703-CH-00058
                                )                             Cecil Crowson, Jr.
STATE BOARD OF EQUALIZATION, )                                 Appellate C ourt Clerk
                                )
          Respondent/Appellee.  )


          APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                       AT MEMPHIS, TENNESSEE
             THE HONORABLE FLOYD PEETE, JR., CHANCELLOR




FRED M. RIDOLPHI, JR.
HUMPHREYS DUNLAP WELLFORD ACUFF & STANTON, P.C.
Memphis, Tennessee
Attorney for Appellant



JOHN KNOX WALKUP
Attorney General and Reporter

GARY N. MEADE, JR.
Assistant Attorney General
Nashville, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    This action was filed by Plaintiff/Appellant, Schering-Plough Healthcare Products,
Inc., (“Schering-Plough”), in the Chancery Court of Shelby County to obtain judicial review

of a decision by Defendant, Tennessee State Board of Equalization (“Board”), upholding

a personal property tax assessment by the Shelby County tax assessor’s office. The

chancellor granted the Board’s motion to dismiss on the ground that the trial court did not

have subject matter jurisdiction due to Schering-Plough’s failure to name Shelby County

as a defendant and to serve upon the County a summons and a copy of the petition. The

sole issue presented for review by this court is whether the chancellor erred in dismissing

Schering-Plough’s suit for judicial review for lack of subject matter jurisdiction because of

Schering-Plough’s failure to name Shelby County as a defendant and to serve Shelby

County with a copy of the petition under T.C.A. § 4-5-322(b). 1 For reasons stated

hereinafter, we reverse the judgment of the trial court and remand.



                                  Facts and Procedural History

        This petition involves the tax assessment of Construction in Progress (“CIP”) owed

by Schering-Plough. Schering-Plough is the owner of certain tangible property located at

3022 Jackson Avenue in Memphis, Tennessee, identified as Parcel No. P-0086-11. In

1992, the Board concluded that CIP was taxable under the general assessment statutes.

Tax assessors for Shelby County were notified by the Board to value CIP at 100% of its

cost in place. In reporting for 1993, Schering-Plough acted in compliance with these state

reporting regulations.



        Thereafter, the Legislature enacted T.C.A. § 67-5-903(g)(1) which provides:

        Tangible personal property which the taxpayer treats as construction-in-
        process (hereinafter “CIP”) for federal income tax purposes as of the
        assessment date may be reported in the taxpayer’s schedule filed with the
        assessor at fifteen percent (15%) of its cost as reported for federal income
        tax purposes.

T.C.A. § 67-5-903(g)(2) provides that no back assessments relative to CIP may be made

prior to January 1, 1994, and that all tax collected from such assessments must be

refunded. Particularly, T.C.A. § 67-5-903(g)(2) provides:

                No back assessments of CIP, as the term is used in


        1
         At oral argument in the matter, the Board conceded that a summons was not required to be served
along with a copy of th e petition for r eview, an d, as a res ult, that issue is not befo re this cou rt.

                                                    2
             Subdivision (g)(1), shall occur prior to January 1, 1994. If back
             assessments have occurred involving CIP, those assessments
             shall be voided and all taxes paid shall be refunded to those
             taxpayers who have an action or claim pending before an
             assessing authority or court on the CIP issue.



      Schering-Plough states that the term “back assessments” appears to exclude assets

in the ordinary course of assessing CIP property made from reports filed by taxpayers such

as Schering-Plough. Schering-Plough further states that the statute appears to permit

back assessments to be made for any tax year after May 17, 1993. Schering-Plough

contends that this statute must be construed to reduce the valuation basis of CIP to 15%

of cost on both types of assessments made for or during the 1993 tax year.



      The assessment at 100% of cost in place was appealed by Schering-Plough through

the appeals process established by the Board. The assessments were upheld by the

Board on a decision entered on May 25, 1995. Thereafter, on July 21, 1995, Schering-

Plough sought judicial review in the Chancery Court of Shelby County, Tennessee

pursuant to T.C.A. §§ 67-5-1511(a) and (b) and 4-5-322 by filing a petition for review.

T.C.A. § 67-5-1511(a) and (b) provide:

             Finality of board action--(a) The action of the state board of
             equalization shall be final and conclusive as to all matters
             passed upon by the board, subject to judicial review, and taxes
             shall be collected upon the assessments determined and fixed
             by the board.

             (b) The judicial review provided in subsection (a) shall consist
             of a new hearing in the chancery court based upon the
             administrative record and any additional or supplemental
             evidence which either party wishes to adduce relevant to any
             issue. The petition for review may be filed in the chancery
             court of Davidson County or the county where the disputed
             assessment was made.


       On September 25, 1995, the Board filed its motion to dismiss alleging that Schering-

Plough was required by T.C.A. § 4-5-322(b) to name and serve process upon Shelby

County. T.C.A. § 4-5-322(b) provides:

              (1) Proceedings for review are instituted by filing a petition for
              review in the chancery court of Davidson County, unless
              another court is specified by statute. Such petition shall by
              filed within sixty (60) days after the entry of the agency’s final
              order thereon.


                                              3
              (2) In a case in which 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.
              The time for filing a petition for review in a court as provided in
              this chapter shall not be extended because of the period of
              time allotted for filing with the agency a petition for
              reconsideration. Copies of the petition shall be served upon
              the agency and all parties of record, including the attorney
              general and reporter, in accordance with the provisions of the
              Tennessee Rules of Civil Procedure pertaining to service of
              process.

Subsequently, on September 27 and 29 of that same year, Schering Plough filed motions

to amend its petition for review to add Shelby County, the Shelby County tax assessor and

the Shelby County Trustee to “cure” an alleged defect in the filing of the petition for review.

Thereafter, Shelby County, its tax assessor and its trustee were all served with copies of

the petition pursuant to T.C.A. § 4-5-322(b)(2).



       On October 29, 1996, the Chancellor dismissed the petition by order on the grounds

that Schering-Plough failed to name Shelby County as a defendant in the action, and to

serve Shelby County with a summons and a copy of the petition for review thereby

rendering the court without subject matter jurisdiction over the matter. This appeal

followed.



                                         Discussion

       Ordinarily, when we review a finding of fact by the trial court, we must conduct our

review de novo upon the record accompanied by a presumption of correctness, and we

may reverse only if the evidence preponderates against the findings of the trial court.

T.R.A.P. 13(d). This same presumption, however, does not exist with regard to the trial

court’s legal determinations. Prost v. City of Clarksville, 668 S.W.2d 425, 427 (Tenn.

1985). In this case, the trial court dismissed Schering-Plough’s petition for review because

of Schering-Plough’s failure to name Shelby County as a party in said petition and to serve

Shelby County with a copy of said petition. No presumption of correctness attaches to the

trial court’s decision to dismiss Schering-Plough’s petition for review because such decision

is a legal determination, and as such does not warrant a presumption of correctness by this

court. Thus, on appeal, this court must review the findings of the trial court de novo without



                                              4
the accompanying presumption of correctness.



       Unquestionably, the issue in this case requires this court to interpret the plain,

ordinary language of T.C.A. § 4-5-322(b). We must rely on the well established rules of

construction to determine this issue.       As a general rule, the purpose of statutory

construction is to ascertain and give effect to the intention and purpose of the legislature.

Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn.

1993). Legislative intent is to be discerned primarily from the natural and ordinary meaning

of the language used, without forced or subtle construction that would limit or extend the

meaning of the language. Where the language contained within the fours corners of a

statute is plain, clear, and unambiguous and the enactment is within legislative

competency, the duty of the court is to obey it. In Austin v. Memphis Publishing Co., 655

S.W.2d 146 (Tenn. 1983), our Supreme Court observed:

              In a recent American work on Statutory Law, it is said that the
              intention of the legislature is to be learned from the words it
              has used; . . . and if that intention is expressed in a manner
              devoid of contradiction and ambiguity, there is no room for
              interpretation or construction, and the judges are not at liberty,
              on consideration of policy or hardship, to depart from the
              words of the statute; that they have no right to make
              exceptions or insert qualifications, however abstract justice or
              the justice of the particular case may seem to require it.

Id. at 148.(citing Heiskell v. Lowe, 153 S.W. 284, 290 (Tenn. 1912)).



       In the instant case, the trial court dismissed Schering-Plough’s petition for review

stating that “Schering-Plough was required by T.C.A. § 4-5-322(b) to name Shelby County

as a defendant in this action, and to serve Shelby County with a summons and a copy of

the Petition for Review, . . .” The trial court went on to state that the failure of Schering-

Plough to name Shelby County as a defendant and to serve upon the County a summons

and a copy of the petition rendered it without subject matter jurisdiction over the action.

At oral argument in this matter, it was conceded to by the Board that Schering-Plough was

not required to serve a summons upon Shelby County. The only remaining question was

whether, under T.C.A. § 4-5-322(b), Schering-Plough was required to name Shelby County

in its petition for review and serve it with said petition within 60 days from the entry of the



                                              5
Board’s final order thereon.



         After a careful examination of T.C.A. § 4-5-322(b), we find two requirements placed

upon a petitioner seeking judicial review of an administrative decision of an agency of this

state. The first is jurisdictional: a petition for review must be filed within 60 days of the

entry of the Board’s decision as set forth in (b)(1); the second requirement is not

jurisdictional: copies of the petition for review must be served upon the Board and all

parties of record, including the attorney general and reporter. The Board contends that the

trial court properly dismissed Schering-Plough’s petition for review because the petition

fails to name a party of record, Shelby County. This argument is based on the provisions

of T.C.A. § 4-5-322(b)(2), which required Schering-Plough to serve a copy of the petition

on “all parties of record.” T.C.A. § 4-5-322(b)(2) (1997 Supp.). The Board interprets

T.C.A. § 4-5-322(b)(2) as requiring Schering-Plough to name Shelby County in its petition

for review and to serve Shelby County with a copy of the petition within the 60 day time

limitation of (b)(1). The trial court agreed. We do not.



         First, nowhere in the ordinary language of T.C.A. § 4-5-322(b) is it required that all

parties of record be named in the petition for review. Along these lines, our Supreme Court

in JACO v. Department of Health, Bureau of Medicaid, 950 S.W.2d 350, 352 (Tenn. 1997),

stated that a petition for review is a continuing proceeding whereby the parties have been

determined and are of “of record.”2 Therefore, parties to the administrative proceedings

remain parties to the judicial review of those proceedings if the requirements of T.C.A. §

4-5-322(b) are met. The only requirement concerning “all parties of record” is found in the

clear, unambiguous language of 4-5-322(b)(2) which simply mandates that copies of the

petition for review be served upon the agency rendering the decision and the parties or

record, including the attorney general and reporter. There is no requirement that “all



          2
            W e note that the JACO court stated that the ultimate decision in HRA, Inc. v. Tenn. Dept. of
Commerce and Ins., 914 S.W.2d 512 (Tenn. Ct. App. 1995), was correct. In HRA, Inc., the Department of
Comm erce and Insurance upheld an “experience modification factor” determined by the National Council on
Compensation Insuran ce (“NC CI”). Id. at 513-514. HRA, Inc. filed a petition for review but failed to name
NCCI as a def endan t in the m atter. Id. The HRA, Inc. court held that HRA, Inc., in failing to name NCCI as
a defen dant in its pe tition for review , had failed to preserv e its right of rev iew again st NCC I. Id. The JACO
cou rt’s statem ent con cerning their appro val of the ultim ate decision in HRA, Inc., however, is dictum and, as
such, is n ot binding o n this cou rt.

                                                         6
parties of record” be named as respondents in the petition. That all parties are not named

is not fatal to the petition.3



        Analogously, we note that a petition for review is nothing short of a continuation of

the administrative proceedings similar to a notice of appeal filed with this court. T.R.A.P.

3(f) provides:

                 Content of the Notice of Appeal. -- The notice of appeal shall
                 specify the party or parties taking the appeal, shall designate
                 the judgment from which relief is sought, and shall name the
                 court to which the appeal is taken. An appeal shall not be
                 dismissed for informality of form or title of the notice of appeal.

Undoubtedly, an appeal is a continuing proceeding, and, as seen in T.R.A.P. 3(f), failing

to name a party in a caption is not a reason for dismissal of the action. Likewise, the

instant case is a continuing proceeding whereby failing to name a party does not justify

dismissal of the action.



        Further, even if a petition for review were an original action, failure to name all

parties in said petition would not prove fatal to Schering-Plough’s action. Tenn. R. Civ. P.

10.01 provides:

                 Every pleading shall contain a caption setting for the name of
                 the court and county wherein the action is filed or is pending,
                 the title of the action, the file number, and a designation as in
                 Rule 7.01. In the complaint the title of the action shall include
                 the names of all the parties, . . .

Although Rule 10.01 requires the caption of a complaint to name all parties, this is merely

a technical requirement. Goss, 751 S.W.2d, at 824; See Blanchard v. Terry & Wright, Inc.,

331 F.2d 467, 469 (6th Cir. 1964), cert. denied, 379 U.S. 831, (1964). The caption

requirement of Rule 10 is for identification purposes, and does not control who is a party

in the action. Goss, at 824; Greenwood v. Ross, 778 F.2d 448, 452 (8th Cir. 1985);

Blanchard v. Terry & Wright, Inc., supra. at 469. The issue of who is a proper party

defendant must be determined from the allegations of the complaint. Goss, at 824, 825;

Tyrolf v. Veterans Administration, 82 F.R.D. 372, 374-375 (E.D.La. 1979).




        3
         After examining the record before us, it is unclear whether or not Shelby County was a party to the
administrative proceedings below.

                                                     7
       In Southwest Motor Freight, Inc. v. Department of Commerce and Insurance, No.

01-A-01-9209-CH00371, 1993 WL 82423, *1 (Tenn. Ct. App. March 24, 1993), the court

faced a situation similar to the one with which we are faced. In Southwest, an action arose

from a dispute between Southwest Motor Freight, Inc. (“Southwest”) and Liberty Mutual

Insurance Company (“Liberty”) concerning insurance premiums. Southwest Motor Freight,

Inc. v. Department of Commerce and Insurance, No. 01-A-01-9209-CH00371, 1993 WL

82423, at * 1. Administrative proceedings conducted by the Tennessee Department of

Commerce and Insurance resulted in an order by the commissioner. Concluding that the

order improperly calculated the premiums, Southwest filed a petition for review in the

Chancery Court for Davidson County. The caption of the petition named the commissioner

as the only respondent. Although not listed as a party to the suit, Liberty was served with

a copy of the petition. The state of Tennessee filed a motion to dismiss for failure to join

an indispensable party, failure to state a claim upon which relief could be granted, and lack

of subject matter jurisdiction. The chancellor dismissed the case for failure to join an

indispensable party--namely Liberty. This Court overturned the dismissal. Citing Goss v.

Hutchins, 751 S.W.2d 821 (Tenn. 1988), the Southwest court stated that the parties to a

lawsuit are not necessarily determined by the caption on the petition for review. The

Southwest court went on to state that two other factors must be considered in determining

whether a party not listed in the caption is a party to the suit: (1) whether the unnamed

party knew the plaintiff’s action was intended as a suit against it; and (2) whether the

unnamed party was prejudiced by the omission of its name in the caption. (citing Goss v.

Hutchins, 751 S.W.2d at 825.) The Southwest court concluded that Liberty knew it was

an intended party when reviewing their participation in the administrative proceedings and

that Liberty was not prejudiced in any way by the omission of its name in the caption of the

petition for review.



       Like Southwest, Shelby County was not named as a respondent on Schering-

Plough’s petition for review but was served with a copy of the petition for review. Unlike

Southwest, the record does not make clear whether Shelby County was a party to the

administrative proceedings thus providing Shelby County with the requisite knowledge of


                                             8
Schering-Plough’s intent to make Shelby County a party. In any event, nowhere in T.C.A.

§ 4-5-322(b) do we find that all parties must be named in the petition for review. The only

requirement is that the petition for review be filed within the 60 day time limit. Schering-

Plough filed their petition for review within this 60 day time limit and, thus, satisfied this

particular requirement of T.C.A. § 4-5-322(b).



       Secondly, and in addition to asserting that all parties of record must be named in

the petition for review, the Board further contends that all parties of record must be served

within the 60 day time limitation of T.C.A. § 4-5-322(b)(1). W e cannot agree with this

assertion. The Board would have this court believe that the 60 day limit of (b)(1) attaches

itself to (b)(2) thereby requiring that all service be had within this 60 day period. This is a

strained reading of T.C.A. § 4-5-322(b) and converse to the plain, ordinary language of the

statutue. According to the plain import of T.C.A. § 4-5-322 (b)(2), proper service requires

only that copies of the petition for review be served upon the agency rendering the decision

and all parties of record, including the attorney general and reporter in compliance with the

Tennessee Rules of Civil Procedure pertaining to service of process. In the instant case,

it is undisputed that service was had upon the Board, Shelby County, the Shelby County

tax assessor, the Shelby County trustee and the attorney general and reporter in

compliance with the Tennessee Rules of Civil Procedure. As mentioned above, the record

is unclear as to whether Shelby County was a “party of record” to the administrative

proceedings below. Nonetheless, Schering-Plough served copies of the petition for review

upon the Shelby County attorney’s office, the Shelby County tax assessor and the Shelby

County trustee in satisfaction of the requirements of T.C.A. § 4-5-322(b)(2).



       To summarize, T.C.A. § 4-5-322(b) sets forth two requirements when seeking

judicial review of an administrative decision: (1) the filing of a petition for review within 60

days after the entry of the agency’s final order; and (2) the serving of copies of the petition

for review upon the agency rendering the final administrative order and upon all parties of

record, including the attorney general and reporter. In the case before us, it is undisputed

that Schering-Plough filed its petition for review within the 60 day period as set out in



                                               9
T.C.A. § 4-5-322(b)(1). It is also undisputed that Schering-Plough caused a copy of the

petition for review to be served upon the Board, Shelby County, the Shelby County tax

assessor, the Shelby County trustee and the attorney general and reporter in accordance

with the Tennessee Rules of Civil Procedure. At oral argument in this matter, it was

conceded that the Shelby County tax assessor’s office was a party of record to the entire

administrative proceedings. As such, according to JACO, the assessor’s office continued

to be a party in the judicial review when Schering-Plough complied with the requirements

of T.C.A. § 4-5-322(b) by filing their petition for review within the 60 day time period and

serving the assessor’s office, the Board and the attorney general and reporter with copies

of said petition. As mentioned supra, the record before us, however, is unclear concerning

whether or not Shelby County was a party to the administrative proceedings below. In any

event, Schering-Plough served the Shelby County attorney’s office, the Shelby County tax

assessor and the Shelby County trustee with copies of the petition, thus satisfying the

requirements of T.C.A. § 4-5-322(b)(2).




       In light of the foregoing, the judgment of the trial court is reversed and this matter

is remanded for further necessary proceedings. Costs of this appeal are taxed to the State

Board of Equalization, for which execution may issue if necessary.




                                                                HIGHERS, J.



CONCUR:




FARMER, J.




                                            10
LILLARD,J.




             11
