                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                           December 9, 2004 Session

KIM JONES, D/B/A KIM’S KIDDIE KORNER, v. STATE OF TENNESSEE

                       Direct Appeal from the Claims Commission
                No. 20301384    Hon. Vance W. Cheek, Jr., Commissioner



                     No. E2004-00780-COA-R3-CV - MARCH 14, 2005



Claimant sought reimbursement for child care under the Child Care Certificate Program. The
Commissioner granted the State summary judgment on the grounds that the State was not
contractually bound to reimburse claimant under the governmental immunity statutory scheme. On
appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

J. Michael Dixon, Knoxville, Tennessee, for appellant.

Paul G. Summers, Attorney General and Reporter,
and
Steven B. McCloud, Assistant Attorney General, Nashville, Tennessee, for appellee.



                                           OPINION


              In this action plaintiff made claim for reimbursement for child care services which
she provided after the State had suspended her day care license, under the Child Care Certificate
Program. The Claims Commissioner, inter alia granted the State summary judgment:

              based upon Paragraph 17 of the Department of Human Services Provider Agreement
              form, and Section B.1.A of the Provider Policy Guidebook that was in effect at the
               time the plaintiff was issued the notice of denial of her child care license, there exists
               no genuine issue of material fact such that defendant is entitled to a judgment as a
               matter of law.

                The material facts are not in dispute. In March 2002 the claimant’s daycare license
was suspended over an issue regarding the failure to report possible child abuse. The license was
subsequently reinstated, but later November 13, 2002, the State notified the claimant that her daycare
license would not be renewed, and payments under the Childcare Certificate Program were
terminated for the children enrolled in the Program. Claimant appealed the decision through the
appropriate administrative channels, and was successful in obtaining her license renewal. During
the process, Claimant continued to operate the daycare and provide services for the Program children
under an “informal extension” of her existing license. When the matter was resolved, the State
began payments effective February 6, 2003.

                Claimant requested payment for the services she provided from November 13, 2002
through February 6, 2003. The State refused to reimburse the claimant, asserting that the
jurisdictional requirements of the statute were not satisfied, and that the policies in effect governing
the Child Care Certificate Program at the time the payments were terminated state that:

               Payments to an agency will immediately stop upon the issuance of a denial or
               revocation of a child care license. . . (even if the action is under appeal).

               The child care agency will be terminated from the Certificate Program. No child care
               will be reimbursed after the termination date and there will be no appeal of this
               termination.

Provider Policy Guidebook, section B.1.A.

              Additionally, as a prerequisite to participation in the Child Care Certificate Program,
the claimant was required to sign a Provider Agreement which states at paragraph 17:

               That upon the issuance of a denial, revocation, or suspension of a license or
               registration home certificate, the Department of Human Services may immediately,
               without further review or hearing, terminate certificate payments.

               Claimant has appealed the Commissioner’s grant of summary judgment to the State.

                As an initial matter, claimant asserts that the policies governing the Program in effect
during the relevant period of time did not address the circumstances in this case, i.e., the failure to
renew the daycare license. This argument is without merit, because the Rules and Regulations of
the Department of Human Services, Procedures Affecting Licenses of Child Care Agencies define
the denial of a license as “the decision of the Department not to issue or renew a license”. Tenn.
Comp. R. & Regs. § 1240-4-5-.02(15). Further, claimant argues that she relies primarily upon the


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policy regulations as amended in August 2003 as her primary legal authority.1

                A basic principle of statutory construction is that statutes are applied prospectively,
unless the legislature clearly indicates otherwise. Shell v. State, 839 S.W.2d 416, 419 (Tenn. 1995).
A statute that creates (or eliminates) a right of recovery or changes the amount of recoverable
damages has altered the parties’ vested rights and cannot be considered remedial. Id. at 420; see
also, Anderson v. Memphis Housing Auth., 534 S.W.2d 125, 127-28 (Tenn. Ct. App. 1975). This
analysis is appropriate when construing a state agency’s policies, as well as statutes. The policy that
claimant would have this Court apply is not remedial. Moreover, the new policy itself states that
§B.1 Licensing and Registration Compliance is to be deleted in its entirety and the new policy
inserted, effective August 8, 2003. Thus, the revised policy, by its own terms, is not applicable to
this case.

                The doctrine of sovereign immunity mandates that the State cannot be sued without
legislative authorization, derived from Article I, section 17 of the Tennessee Constitution. Pool v.
State, 987 S.W.2d 566, 568 (Tenn. Ct. App. 1998).

                In 1984, the General Assembly exercised its constitutional authority and established
the Tennessee Claims Commission, empowering it with exclusive jurisdiction to determine all
monetary claims against the State. Id. Tenn. Code Ann. § 9-8-301 et seq. However, the jurisdiction
of the Claims Commission is limited to those claims enumerated in Tenn. Code Ann. § 9-8-307(a).
Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000). If a claim falls outside those specific enumerated
categories, then immunity is not waived, and the claimant has no cause of action against the State.


            The Trial Court ruled that it was without subject matter jurisdiction, and also granted
summary judgment to the State on the merits. The claimant did not appeal the Order of Dismissal,

       1
       Section B.1.B., Denial and Revocation of License, of the Provider Policy as revised in
August 2003, states in relevant part:

       The Certificate Program will re-enroll children and restart payments as of the original
       decision date if the Board does not uphold the denial or revocation and decides in favor of
       the child care provider. The Certificate Program will also “back-pay” the child care
       payments for all enrolled children that remained with the provider during the appeal process.
       The Certificate Program will only “back-pay” child care payments after the Board of Review
       decides in favor of the provider.

       If the provider and Child Care Licensing settle the case regarding the denial or revocation
       without input from the Board of Review, and the license or certificate is reinstated, the
       Certificate Program will re-enroll children with the provider. The Certificate Program will
       not “back-pay” child care payments for any children enrolled in the Certificate Program at
       the time of the suspension or revocation remaining with the provider during the process.

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and argues that when a case is dismissed, the Court need not reach a motion for summary judgment,
and as the argument goes, when the Commissioner ruled he did not have subject matter jurisdiction,
he had no authority to rule on the motion for summary judgment, which goes to the merits of the
litigation. Claimant’s argument is disingenuous. While it is not necessarily fatal to the appeal to not
properly identify the order from which an appeal is taken,2 Claimant here is affirminately asserting
that it was unnecessary to appeal from the dismissal. While the State attempts to raise this issue on
appeal, we pretermit the issue and address the issue raised by the claimant as to the propriety of
summary judgment in this case.

                When the first statute waiving the state’s sovereign immunity was enacted in 1977,
it omitted actions based on express or implied contracts or a breach thereof.3 In 1980, the Legislature
narrowed the scope of the waiver by eliminating causes of action based on implied contracts. See
generally, Computer Shop, Inc., v. State of Tennessee, 780 S.W.2d 729-736 (Tenn. Ct. App. 1989).
The Claims Commission Act which was originally enacted in 1984 precluded claims based upon
implied contracts, permitting only claims against the State arising out of “[a]ctions founded on any
express contract or breach thereof.” Historically, courts have held that the express contracts may be
either written or oral. Id. at 736. In response to a request from the Attorney General to the General
Assembly to limit the scope of § 9-8-307(a)(1)(L), the Section was amended in 1989 to its present
version further restricting breach of contract claims against the State to “a written contract between
the claimant and the State which was executed by one (1) or more State officers or employees with
authority to execute the contract.” As if to underscore the significance of the execution requirement,
§ 9-8-307(a)(1)(L) recognizes an exception for group insurance agreements.4 However, the
legislature did not provide a similar exception for provider agreements for participants in the Child
Care Certificate Program. In this case, the State has undeniably promulgated certain documents
which purport to define the scope of the relationship between the State and participants in the Child
Care Certificate Program. However, the claimant has not pointed to any language in either the
Provider Agreement or the Provider Policy Guidebook wherein the State manifests an intent to be
bound. The documents suggest the opposite conclusion. They provide that the State may suspend


       2
           Dunlap v. Dunlap, 996 S.W.2d 803, 810-811 (Tenn. Ct. App. 1998).
       3
           This statute was originally codified at Tenn. Code Ann. § 29-10-101 through 29-10-103.
       4
        Tenn. Code Ann. § 9-8-307(a)(1):
       (L) Actions for breach of a written contract between the claimant and the state which
       was executed by one (1) or more state officers or employees with authority to execute
       the contract; provided, that the group insurance agreements created pursuant to §§
       8-27-201 and 8-27-302 shall be considered contracts for purposes of this subsection
       in order for the commission to determine insurance claims which have been
       previously rejected by the state insurance committee or the local education insurance
       committee;



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or terminate payments upon the denial or revocation of a license, even pending appeal of the license,
and without further review or hearing.

                Claimant insists that a contract exists between the State and claimant because the
claimant performed services as a participant in the Child Care Certificate Program and the State paid
for those services. While the State’s actions may have created an expectation in the claimant’s mind
that an enforceable contract existed, the law is well settled that subject matter jurisdiction cannot be
conferred by consent or conduct of the parties. See, The Computer Shoppe, Inc., 780 S.W.2d 729,
734 (Tenn. Ct. App. 1989); see also, Shelby County v. City of Memphis, 365 S.W.2d 291, 292 (Tenn.
1963); Seagram Distillers Co. v. Jones, 548 S.W.2d 667, 671 (Tenn. Ct. App. 1976). Claimant
argues that the Provider contract she signed is enforceable against the State, but she provides no
authority for her position. Adherence to the principle of statutory interpretation compels a contrary
conclusion:

               Where the legislature permits relief against the State, the conditions prescribed by
               such statute must be strictly construed, and jurisdiction to grant relief cannot be
               enlarged upon by implication.

Brown v. State, 783 S.W.2d 567-571 (Tenn. Ct. App. 1989) (citations omitted).

                 Claimant would have this Court write out the unambiguous requirement that contracts
which obligate the State must be executed by a State official. Such a ruling would be tantamount
to judicially creating a waiver of sovereign immunity to which the State has not consented,
particularly in light of the progressively narrowing of the statute since its original enactment. See
generally, Northland Ins. Co. v. State, 33 S.W.3d 727 (Tenn. 2000). In this regard, see, Petty v.
State, 2002 WL 415650 (Tenn. Ct. App. March 18, 2002); State v. Ku, 104 S.W.3d 870 (Tenn. Ct.
App. 2003), and Gardner v. University of Memphis College of Business, 2003 WL 1872650 (Tenn.
Ct. App. April 8, 2003).

                We affirm the summary judgment entered by the Commissioner, and remand, with
the costs of the appeal assessed to Kim Jones.




                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




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