                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                            Assigned On Brief April 22, 2002

                RICHARD MADKINS v. STATE OF TENNESSEE

                   Direct Appeal from the Tennessee Claims Commission
                      No. 20101442 Randy C. Camp, Commissioner



                     No. W2001-03002-COA-R3-CV - Filed May 29, 2002


Plaintiff was convicted of especially aggravated robbery and attempted felony murder. The trial
court sentenced Plaintiff to two consecutive sentences of sixty years for each count. In an opinion
filed on March 22, 1999, the Tennessee Supreme Court reversed Plaintiff’s conviction for attempted
felony murder, concluding that the offense did not exist in Tennessee. On March 28, 2001, Plaintiff
sued the State of Tennessee in the Division of Claims Administration. The State filed a motion to
dismiss Plaintiff’s action, which the Claims Commission granted. Plaintiff appeals the decision of
the Claims Commission. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD, J., joined.

Richard Madkins, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Martha
A. Campbell, Senior Counsel, for the State of Tennessee.

                                           OPINION

        On October 5, 1994, Richard Madkins was convicted of especially aggravated robbery and
attempted felony murder in Shelby County Criminal Court. The court sentenced Mr. Madkins to two
consecutive sentences of sixty years for each count. Ultimately, Mr. Madkins appealed the court’s
decision to the Tennessee Supreme Court. The supreme court affirmed Mr. Madkins’s conviction
for especially aggravated robbery. State v. Madkins, 989 S.W.2d 697, 699 (Tenn. 1999). The court
reversed Mr. Madkins’s conviction for attempted felony murder, holding that the offense of
attempted felony murder does not exist in Tennessee. Id.
         On March 28, 2001, Mr. Madkins filed a claim with the Division of Claims Administration.
This claim was ultimately transferred to the Tennessee Claims Commission. The basis of Mr.
Madkins’s claim was that the State negligently deprived him of his statutory rights in violation of
Section 9-8-301(a)(1)(N) of the Tennessee Code. Within Mr. Madkins’s claim, he asserted that the
state District Attorney General and Assistant District Attorneys negligently and willfully pursued a
wrongful conviction in violation of sections 39-11-101(1) and 39-11-102(a) of the Tennessee Code.
Mr. Madkins further alleged that the District Attorney General and Assistant District Attorneys
falsely imprisoned him in violation of section 39-13-302 of the Tennessee Code. Additionally, Mr.
Madkins alleged that the state Criminal Court Judge negligently and willfully charged the jury with
a non-existent criminal offense in violation of section 17-5-302(a)(1) of the Tennessee Code.
Finally, Mr. Madkins contended that the Tennessee Attorney General and Assistant Attorneys
negligently and willfully defended the criminal offense of attempted felony murder in violation of
section 8-6-109 of the Tennessee Code.

        The State filed a motion to dismiss Mr. Madkins’s claim pursuant to 12.02 of the Tennessee
Rules of Civil Procedure. To support its motion, the State contended that the Claims Commission
was without jurisdiction to hear Mr. Madkins’s claim, that the claim was barred by the statute of
limitations, and that the doctrine of absolute immunity barred Mr. Madkins’s claim. The Claims
Commission granted the State’s motion.

       In response to the Claims Commission’s ruling, Mr. Madkins filed a motion to amend his
claim. The Claims Commission denied Mr. Madkins’s motion. Thereafter, Mr. Madkins filed a
motion for an en banc hearing. The Claims Commission granted Mr. Madkins’s motion and
affirmed the dismissal of Mr. Madkins’s claim, as well as the denial of his motion to amend. Mr.
Madkins appeals the decision of the Claims Commission. The issues, as we perceive them, are as
follows:

       I.      Whether the Claims Commission had subject matter jurisdiction over Mr. Madkins’s
               claim.

       II.     Whether Mr. Madkins’s claim is barred by the statute of limitations.

       III.    Whether Mr. Madkins’s claim is barred by absolute immunity.

       IV.     Whether Mr. Madkins submitted evidence of damages.

        This appeal is governed by the Tennessee Rules of Appellate Procedure. Tenn. Code Ann.
§ 9-8-403(a)(1) (1999). Generally, our review is de novo, with a presumption of correctness
afforded to the Claims Commission’s findings of fact. Tenn. R. App. P. 13(d); Dobson v. State, 23
S.W.3d 324, 328-29 (Tenn. Ct. App. 1999). Because this case is before us as the result of the State’s
motion to dismiss under 12.02, however, we take the factual allegations contained in the complaint
as true and review the Claims Commission’s legal conclusions de novo, with no presumption of
correctness. White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000); See


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also Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (stating that determinations
involving subject matter jurisdiction are questions of law, entitled to de novo review).

        The first issue before this Court is whether the Claims Commission had subject matter
jurisdiction over Mr. Madkins’s claim. Only a constitutional or legislative act can grant subject
matter jurisdiction to a court. Northland Ins. Co., 33 S.W.3d at 729. Section 9-8-307(a) of the
Tennessee Code provides for the jurisdiction of the Tennessee Claims Commission. Mr. Madkins
contends that section 9-8-307(a)(1)(N) of the Tennessee Code gives the Claims Commission
jurisdiction over his claim. Section 9-8-307(a)(1)(N) states that the Claims Commission has
jurisdiction to decide monetary claims against the state for the:

       Negligent deprivation of statutory rights created under Tennessee law, except for
       actions arising out of claims over which the civil service commission has jurisdiction.
       The claimant must prove under this subdivision that the general assembly expressly
       conferred a private right of action in favor of the claimant against the state for the
       state’s violation of the particular statute’s provisions.

Tenn. Code Ann. § 9-8-307(a)(1)(N) (Supp. 2001). Therefore, the above statute conferring
jurisdiction on the Claims Commission specifies that Mr. Madkins must show that the statute
allegedly violated by the State expressly grants individuals a private right of action to enforce those
rights. For every statutory right allegedly violated by the State, Mr. Madkins must reference explicit
statutory language that would grant him the private right of action to enforce the statute.

        Mr. Madkins contends that the State negligently deprived him of rights under the following
statutes: section 8-6-109 of the Tennessee Code, sections 39-11-101 and 102 of the Tennessee Code,
section 39-13-302 of the Tennessee Code, and section 17-5-302 of the Tennessee Code. Mr.
Madkins failed to cite any language in these statutes which would confer a private right of action in
his favor against the State. Additionally, we are unable to find express language in these statutes
which would confer a private right of action in favor of Mr. Madkins against the State. Accordingly,
we hold that the Tennessee Claims Commission lacked the subject matter jurisdiction to hear Mr.
Madkins’s claims and that dismissal under Rule 12.02(1) of the Tennessee Rules of Civil Procedure
was proper in this case.

         The second issue concerns whether Mr. Madkins’s claims were barred by the applicable
statute of limitations. The actions giving rise to Mr. Madkins’s claims occurred in 1994, 1997, and
1999. Mr. Madkins filed his action with the Division of Claims Administration on March 28, 2001.
Section 9-8-402(a) of the Tennessee Code provides that “[t]he claimant must give written notice of
the claimant’s claim to the division of claims administration as a condition precedent to recovery.
. . .” Tenn. Code Ann. § 9-8-402(a) (1999). Additionally, section 9-8-402(b) of the Tennessee Code
states that “[t]he claim is barred unless the notice is given within the time provided by statutes of
limitations applicable by the courts for similar occurrences from which the claim arises.” Tenn.
Code Ann. § 9-8-402(b) (1999).



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        Mr. Madkins’s claim is a personal tort action that must be brought within one year “after the
cause of action accrued.” Tenn. Code. Ann. § 28-3-104 (2000). A cause of action accrues when
the tort is complete, and the injury to the person has occurred. Hunter v. Brown, 955 S.W.2d 49,
51 (Tenn. 1997). In some instances, however, “the accrual of the cause of action is deferred until
the injury is discovered or in the exercise of reasonable care and diligence, the injury should have
been discovered.” Id.

        Assuming there was an injury to Mr. Madkins, the latest possible date the injury could have
occurred was on March 22, 1999, the date the supreme court reversed Mr. Madkins’s conviction for
attempted felony murder. As Mr. Madkins provided the Division of Claims Administration notice
of his claim on March 28, 2001, the claim is barred by the applicable statute of limitations. Mr.
Madkins argues, in essence, that the application of the discovery rule should prevent his claim from
being barred. Mr. Madkins states that his cause of action against the State did not accrue until he
discovered that section 9-8-307(a)(1)(N) of the Tennessee Code existed and provided a remedy for
the negligent deprivation of statutory rights. Because he only learned of the possible remedy on
March 13, 2001, Mr. Madkins maintains that his claim is timely.

        We cannot agree with Mr. Madkins’s argument. The discovery rule only applies to factual
matters that may be unknown to the prospective plaintiff. Spar Gas, Inc. v. McCune, 908 S.W.2d
400, 404 (Tenn. Ct. App. 1995). The rule does not apply to a plaintiff’s failure to discover that the
law provides recourse for his or her injuries. As this Court has previously stated, “[m]ere ignorance
or failure of a plaintiff to discover his cause of action or subsequent resulting damages will not
prevent the statute from running.” Gifford v. City of Gatlinburg, 900 S.W.2d 293, 295 (Tenn. Ct.
App. 1995), overruled on other grounds by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn.
2001). Accordingly, the statute of limitations bars Mr. Madkins’s claim, and we affirm the Claims
Commission’s decision to dismiss the claim pursuant to Rule 12.02(6) of the Tennessee Rules of
Civil Procedure.

       The remaining issues are pretermitted. Accordingly, we affirm the decision of the Claims
Commission. Costs of this appeal are taxed to the appellant, Mr. Richard Madkins, for which
execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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