JOSEPH JONES,                )             Davidson Chancery
                             )             No. 96-717-II
     Plaintiff/Appellee,     )
                             )
VS.                          )
                             )
LINDA RUDOLPH, COMMISSIONER, )
TENNESSEE DEPARTMENT OF      )             Appeal No.
HUMAN SERVICES,              )             01A01-9611-CH-00513
                             )
     Defendant/Appellant.    )


                  IN THE COURT OF APPEALS OF TENNESSEE
                                                         FILED
                       MIDDLE SECTION AT NASHVILLE
                                                    November 14, 1997
         APPEAL FROM CHANCERY COURT OF DAVIDSON COUNTY
                                               Cecil W. Crowson
                     AT NASHVILLE, TENNESSEE
                                              Appellate Court Clerk
                HONORABLE CAROL L. McCOY, CHANCELLOR




John Knox Walkup
Attorney General & Reporter

Sue A. Sheldon #152295
Assistant Attorney General
1510 Parkway Towers
404 James Robertson Parkway
ATTORNEYS FOR DEFENDANT/APPELLANT

Norman B. Feaster, II
Legal Services of South Central TN, Inc.
P.O. Box 1293
Tullahoma, TN 37388
ATTORNEY FOR PLAINTIFF/APPELLEE


                        REVERSED AND REMANDED



                                 HENRY F. TODD
                                 PRESIDING JUDGE, MIDDLE SECTION




CONCUR:

BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, SPECIAL JUDGE
JOSEPH JONES,                )                         Davidson Chancery
                             )                         No. 96-717-II
     Plaintiff/Appellee,     )
                             )
VS.                          )
                             )
LINDA RUDOLPH, COMMISSIONER, )
TENNESSEE DEPARTMENT OF      )                         Appeal No.
HUMAN SERVICES,              )                         01A01-9611-CH-00513
                             )
     Defendant/Appellant.    )



                                     OPINION

       The Trial Court and this Court have granted interlocutory appeal from an order overruling

the motion of the Commissioner of Human Services to dismiss the petition of Joseph Jones for

judicial review of an administrative decision of the Commissioner.



                           ADMINISTRATIVE PROCEEDINGS

       On December 4, 1992, the captioned plaintiff filed with the Tennessee Department of

Human Services an application for Medicaid benefits. Ultimately, a “contested case” reached

the Commissioner of Human Services who, on January 24, 1994, entered a final order denying

the requested benefits.



                              TRIAL COURT PROCEEDINGS

       On March 23, 1994, within 90 days after the entry of the final administrative order,

plaintiff filed in the Trial Court his first complaint for judicial review under Trial Court number

94-864-I which indicates that the ensuing proceedings took place in Part I of the Chancery Court.

The record of the administrative agency was filed with that Trial Court on November 2, 1995.




       On March 3, 1995, that Trial Court entered an order dismissing case number 94-864-I

for failure to prosecute as required by local rules and affirming the decision of the agency. The




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order was served upon the plaintiff. The record contains no post-judgment motion or order

regarding the final judgment in case number 94-864-I.



       On March 4, 1996, plaintiff filed in Part II of the Chancery Court at Nashville under case

number 96-717-II, a second petition for judicial review of the same administrative order.

Proceedings under this case number occurred in Part II of the Chancery Court at Nashville under

the Chancellor of that Court.



       On April 16, 1996, the Commissioner moved to dismiss the second petition for review

on two grounds:

       1.      The “Savings Statute,” (T.C.A. § 28-1-105) is inapplicable to an action against

the State because of sovereign immunity.



       2.      The March 3, 1995, dismissal of case number 94-864-I was an “adjudication on

the merits” and therefore did not qualify as a “judgment or decree against the plaintiff upon any

ground not concluding his right of action,” as described in the Savings Statute.



       On June 3, 1996, the Trial Judge sitting in Part II at that time, entered the following order

in case no. 96-717-II:

                       This case was heard on May 10, 1996, before the
               Honorable Ellen Hobbs Lyle, Chancellor for Davidson
               County, Tennessee, on the Motion to Dismiss filed by the
               defendant, the plaintiff’s response, argument of counsel, and
               the record as a whole.
                                            ----
                       The Court found the plaintiff was not guilty of laches
               due to his failure to comply with Local Rule 30. The
               defendant was not prejudiced by the plaintiff’s non-
               compliance, particularly since the case is an appellate-like
               proceeding based solely on the administrative record, and the
               savings statute, T.C.A. § 28-1-105, is applicable to the
               plaintiff’s case allowing him to refile his appeal of the
               defendant’s decision that denied his Medicaid application. It
               is, therefore ORDERED that the defendant’s Motion to
               Dismiss is denied.




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        On August 16, 1996, the same Trial Judge entered the following order in the same

case:

                      This case was heard on August 2, 1996 before the
               Honorable Ellen Hobbs Lyle, Chancellor for Davidson
               County, Tennessee, on the Respondent’s motion to reconsider
               denial of the motion to dismiss this action, Petitioner’s
               Response to the motion, arguments of counsel, and the record
               as a whole.

                        The Respondent advanced arguments in support of her
               motion to reconsider that (1) sovereign immunity barred
               application of the savings statute to actions against the State,
               (2) that the savings statute had no application where as in this
               case Petitioner’s original action was dismissed on grounds
               concluding the Petitioner’s right of action and (3) that under
               the language of Rule 41.02(3) of the T.R.A.P. (which
               provides that “unless the court in its order for dismissal
               otherwise specifies, the dismissal operates as an adjudication
               on the merits”) the order of dismissal entered by the Court on
               March 3, 1995, in the Petitioner’s original action, which
               Order dismissed the original action, affirmed the
               administrative agency decision and assessed costs to the
               Petitioner and did not “otherwise specify,” under Rule
               41.02(3) the March 3, 1995 order of dismissal.

                      In opposition to the Respondent’s motion to
               reconsider, the Petitioner advanced arguments that sovereign
               immunity did not bar application of the savings statute to this
               case and cited in reliance on his arguments the case of
               Brooksbank v. Roane County, 341 S.W.2d 570 (Tenn. 1960).

                      The Court in denying the Respondent’s motion to
               reconsider dismissal of this second action ruled that by
               analogy Brooksbank provided the Court a basis upon which
               the Court could deny the Respondent’s motion to reconsider.

                      IT IS SO ORDERED.


        On November 1, 1996, a successor Trial Judge of Part II entered the following order:

                      The Respondent has filed an Application for
               Permission to Appeal the Order of August 16, 1996 which
               denied Respondent’s Motion to Dismiss for failure to state a
               cause of action.

                      The Order of August 16, 1996 was written by this
               Chancellor’s predecessor who found that sovereign immunity
               does not bar application of the savings statute to UAPA
               actions filed against the state. This Court respectfully
               disagrees. The Plaintiff filed an administrative appeal on
               March 25, 1994 which was dismissed for failure to prosecute
               on March 3, 1995. The Plaintiff refiled the same appeal on
               March 4, 1996. The Court considers the Order of August 16,

                                             -4-
               1996 to have been in error since the Defendant State of
               Tennessee is not subject to the savings statute, T.C.A. § 28-1-
               105, and further that the Order of Dismissal dated March 3,
               1995 was on the merits since no motion to vacate was timely
               filed. The Court has considered the probability of reversal,
               whether the interlocutory appeal will result in a net reduction
               in the duration and expense of the litigation if the challenged
               Order is reversed, and the need to develop a uniform body of
               law. It is therefore ordered that the Defendant is granted
               permission to appeal under Rule 9 of the Tennessee Rules of
               Appellate Procedure. (Emphasis supplied)


       This Court considers the dispositive issue to be the effect of sovereign immunity upon

the applicability of the “Savings Statute” to this case.



        In Automobile Sales Co. v. Johnson, 174 Tenn. 38, 122 S.W.2d 453 (1938), suit was

brought to recover gasoline tax paid under protest to the Commissioner of Finance and Taxation

within 30 days after payment as required by statute. However, this suit was dismissed without

prejudice and renewed more than 30 days after payment. The plaintiff insisted that the first

dismissal created a second 30-day window to file suit under Code Section 8572 (now 28-1-105).

After discussing numerous decisions, the Supreme Court held that the Constitution of Tennessee,

Article I, Sec. 17, prohibits suits against the State except as authorized by statute. The suit was

dismissed.



        Automobile Sales Company v. Johnson, supra, also established the rule that a suit against

a State official in reference to State Business is a suit against the State, and said:

                        “It is a general rule that the State is not bound by the
                general words of a statute, which, if applied, would operate to
                trench on its sovereign rights, injuriously affect its capacity to
                perform its functions, or establish a right of action against it,
                unless the contrary is expressly declared or necessarily
                implied.”


        No subsequent Tennessee Authority is found to the contrary.




                                                   -5-
                      IDENTITY OF ACTIONS (Res Judicata)

       It is clear that only one administrative action is involved in this dispute, i.e., the

denial of disability benefits to the plaintiff on January 24, 1994. Since the same claim,

the same claimant, and the same agency are involved, there is sufficient identity of

subject matter and parties to support the doctrine of res judicata which bars a second

action on the same claim involving the same parties. Richardson v. Tennessee Board of

Dentistry, Tenn. 1995, 913 S.W.2d 446.



       It is also clear that only one order is before this Court for review at this time. The

order of March 3, 1995, dismissing the first petition for judicial review, has become final

without appeal, and is not before this Court for review. It is mentioned only as support

for the plea of res judicata to the second petition. The second order of August 16, 1996,

overruling defendant’s motion to dismiss, is the order which is before this Court for

review and it is reversed because the savings statute is inapplicable because of sovereign

immunity. The third order, entered on November 1, 1996, is only the vehicle whereby

this interlocutory appeal reached this Court, and is not before this Court for review.



       The judgment of the Trial Court overruling the Commissioner’s motion to

dismiss is reversed, and vacated. Costs of this appeal are taxed to the plaintiff-appellee.

The cause is remanded to the affected Trial Courts for further proceedings in conformity

with this opinion.

                        REVERSED AND REMANDED


                                       ___________________________________
                                       HENRY F. TODD
                                       PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

________________________________
BEN H. CANTRELL, JUDGE

________________________________
WILLIAM B. CAIN, SPECIAL JUDGE

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