                                                                                                       05/02/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      April 18, 2018 Session

             R.C. EX REL. ADAM ELROD v. STATE OF TENNESSEE

                     Appeal from the Tennessee Claims Commission
                    No. 20101747   William A. Young, Commissioner


                                 No. E2017-01529-COA-R3-CV


This action involves a claim filed against the State of Tennessee with the Tennessee
Claims Commission. The Commissioner ultimately dismissed the claim with prejudice
for failure to advance the case to disposition. The claimant filed a motion for relief from
the judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure.1 The
claimant then filed a notice of appeal before the Commissioner ruled upon the motion.
We dismiss the appeal for lack of subject matter jurisdiction and remand for further
proceedings consistent with this opinion.

                Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed;
                                    Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

Gregory E. Bennett, Seymour, Tennessee, and Mary L. Ward, Knoxville, Tennessee, for
the appellant, R.C. ex rel. Adam Elrod, as next friend.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Stephanie A. Bergmeyer, Assistant Attorney General, for the appellee, State
of Tennessee.



1
  “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.”
                                    MEMORANDUM OPINION2

       Adam Elrod (“Claimant”), as next friend for R.C., a minor child, filed this action
against the State of Tennessee (“the State”) on June 1, 2010. The claim was transferred
to the Tennessee Claims Commission (“the Commission”) in August 2010. The
Commission entered a notice of receipt of claim, which stated:

          The claimants or the claimants’ attorney must take the initiative in the
          prosecution of this claim. Please take notice of Tennessee Code Annotated
          section 9-8-402(b), which provides in part, “Absent prior written consent of
          the Commissioner, it is mandatory that any claim filed with the claims
          commission upon which no action is taken by the claimant to advance the
          case to disposition within any one (1) year period of time be dismissed with
          prejudice.”

The State denied liability. A scheduling order was entered in May 2011, and amended
orders were entered on October 12, 2011, and October 15, 2012. An agreed protective
order was also entered in October 2012.

        At some point, the Parties mutually agreed to allow Claimant to pursue a related
action in circuit court in 2011 or 2012. Claimant asserts that the agreement extended
until the resolution of the circuit court case, while the State claims that the agreement was
for an unspecified time. Nevertheless, Claimant alleges that he indicated his intent to
pursue the case on May 8, 2013. Claimant asserts that he received no response from the
State, while the State argues that it advised Claimant to respond to discovery. On
September 4, 2015, Claimant advised the Commissioner’s office that an agreement had
been reached to “leave [the] claim idle pending the outcome of the civil suit.”

       The circuit court case concluded on May 10, 2016. The Parties disagree as to the
extent of their conversations concerning the advancement of the claim following May 10.
On May 26, 2017, the State moved to dismiss, citing Section 9-8-402(b). The Claims
Commissioner dismissed the claim on July 3, finding that dismissal was warranted
because written consent had not been obtained to hold the claim in abeyance.


2
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
                                                       -2-
       Claimant filed a Rule 60.02 motion for relief on July 14, and a notice of appeal on
August 3. On September 11, the Claims Commission held that it was without jurisdiction
to consider the Rule 60.02 motion due to the filing of the notice of appeal. This appeal
followed.

       Claimant asserts that the Commissioner erred in dismissing the claim but
alternatively requests Rule 60.02 relief based upon his excusable neglect. The State
responds that dismissal was supported by the record and that this court is without original
jurisdiction to consider any claims for Rule 60.02 relief that were not heard by the Claims
Commissioner.

       We must first consider whether this court lacks subject matter jurisdiction. See
Tenn. R. App. P. 13(b) (providing this court with the authority to consider whether
subject matter jurisdiction is present whether or not the issue is raised on appeal). Rule
3(a) of the Tennessee Rules of Appellate Procedure provides:

      Any order that adjudicates fewer than all the claims or the rights and
      liabilities of fewer than all the parties is not enforceable or appealable and
      is subject to revision at any time before entry of a final judgment
      adjudicating all the claims, rights, and liabilities of all parties.

(Emphasis added.). Indeed, “[a] final judgment is one that resolves all the issues in the
case, ‘leaving nothing else for the trial court to do.’” In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn. Nov. 4, 2003) (quoting State ex rel. McAllister v. Goode, 968
S.W.2d 834, 840 (Tenn. Ct. App. 1997)). The order appealed from in this case was not a
final judgment because all issues before the Claims Commission had not yet been
resolved. Accordingly, the notice of appeal was prematurely filed prior to the resolution
of the Rule 60.02 motion, thereby depriving this court of subject matter jurisdiction.

       With the above considerations in mind, we dismiss the appeal for lack of subject
matter jurisdiction without prejudice to the filing of a new appeal upon entry of a final
judgment by the Claims Commission. We remand this case for further ruling upon the
Rule 60.02 motion. Costs of the appeal are taxed one-half to the appellant, R.C. ex rel.
Adam Elrod, as next friend, and one-half to the appellee, the State of Tennessee.


                                                 _________________________________
                                                 JOHN W. McCLARTY, JUDGE




                                           -3-
