RANDALL MYERS,                       )
                                     )
      Plaintiff/Appellee,            )
                                     )    Rutherford County Circuit
                                     )    No. 36179
VS.                                  )
                                     )    Appeal No.
                                     )    01-A-01-9609-CV-00397
HURST CONSTRUCTION CO., INC.,        )
                                     )
      Defendant/Appellant.           )


                  IN THE COURT OF APPEALS OF TENNESSEE        FILED
                  MIDDLE SECTION AT NASHVILLE       March 5, 1997
      APPEAL FROM THE CIRCUIT COURT OF RUTHERFORD COUNTY
                                                   Cecil W. Crowson
                  AT MURFREESBORO, TENNESSEE     Appellate Court Clerk
                  HONORABLE DON R. ASH, JUDGE


SHELLEY I. STILES
5214 Maryland Way, Suite 3192
Brentwood, TN 37027
ATTORNEY FOR PLAINTIFF/APPELLEE


STEVEN D. PARMAN
214 Second Avenue, North
Suite 300
Nashville, TN 37201
FOR DEFENDANT/APPELLANT


                            REVERSED AND REMANDED


                                HENRY F. TODD
                                PRESIDING JUDGE, MIDDLE SECTION


CONCUR:

SAMUEL L. LEWIS, JUDGE
WILLIAM C. KOCH, JR., JUDGE
RANDALL MYERS,                               )
                                             )
       Plaintiff/Appellee,                   )
                                             )       Rutherford County Circuit
                                             )       No. 36179
VS.                                          )
                                             )       Appeal No.
                                             )       01-A-01-9609-CV-00397
HURST CONSTRUCTION CO., INC.,                )
                                             )
       Defendant/Appellant.                  )



                                       OPINION

       The Trial Court and this Court have granted permission to the Hurst Construction Co.,

Inc., to appeal from an interlocutory order of the Trial Court overruling the motion of Hurst

Construction Co., Inc., for summary judgment on grounds of the statute of limitations.



       On November 8, 1992, plaintiff, Randall Myers was injured in an accident on a state

highway.



       On November 8, 1993, plaintiff filed a claim with the Tennessee Claims Commission

alleging negligent construction or maintenance of the highway causing his injuries.



       On May 11, 1994, the State responded, stating that any negligence in constructing the

highway was that of Hurst Construction Co., Inc.



       On August 9, 1994, plaintiff filed an amended claim with the Claims Commission

seeking recovery from Hurst Construction Co., Inc., for his injuries.



       On October 28, 1994, Hurst Construction Co., Inc., filed a motion to dismiss the amended

claim for lack of jurisdiction.




                                              -2-
       On February 27, 1995, the Claims Commission sustained the motion and dismissed

plaintiff’s amended claim against Hurst Construction Co., Inc.



       On February 8, 1996, plaintiff filed the present action in Circuit Court against Hurst

Construction Co., Inc., upon the same right of action asserted against Hurst Construction Co.,

Inc., in the amended claim before the Board of Claims.



       On June 7, 1996, the Trial Court overruled the motion of Hurst Construction Co., Inc.,

for summary judgment.



       On August 30, 1996, the Trial Court granted the application of Hurst Construction Co.,

Inc. for permission to appeal from the June 7, 1996 order overruling the motion of Hurst

Construction Co., Inc., for summary judgment.



       This Court also granted permission for the interlocutory appeal.



       On appeal, Hurst Construction presents the following issues:

               1.     Whether T.C.A. § 20-1-119 can be applied to
               extend the statute of limitations when the plaintiff
               improperly attempts to sue a private defendant in the
               Claims Commission.

               2.     Whether a plaintiff who attempts to file a claim
               against a private defendant in the Claims Commission
               has commenced an action so as to be protected by the
               savings statute, T.C.A. § 28-1-105.



       T.C.A. § 20-1-119 provides in pertinent part as follows:

                 Comparative fault - Joinder of third party defendants.
               (a) In civil actions where comparative fault is or
               becomes an issue, if a defendant named in an original
               complaint initiating a suit filed within the applicable
               statute of limitations, or named in an amended com-
               plaint filed within the applicable statute of limitations,
               alleges in an answer or amended answer to the original
               or amended complaint that a person not a party to the

                                              -3-
               suit caused or contributed to the injury or damage for
               which the plaintiff seeks recovery, and if the plaintiff’s
               cause or causes of action against such person would
               be barred by any applicable statute of limitations but
               for the operation of this section, the plaintiff may,
               within ninety (90) days of the filing of the first answer
               or first amended answer alleging such person’s fault,
               either:

                  (1) Amend the complaint to add such person as a
               defendant pursuant to Rule 15 of the Tennessee Rules
               of Civil Procedure and cause process to be issued for
               that person; or

                  (2) Institute a separate action against that person
               by filing a summons and complaint. If the plaintiff
               elects to proceed under this section by filing a
               separate action, the complaint so filed shall not be
               considered an “original complaint initiating the suit”
               or “an amended complaint” for purposes of this sub-
               section.

                 (b) A cause of action brought within ninety (90)
               days pursuant to subsection (a) shall not be barred by
               any statute of limitations. This section shall not
               extend any applicable statute of repose, nor shall this
               section permit the plaintiff to maintain an action
               against a person when such an action is barred by an
               applicable statute of repose.

                  (c) This section shall neither shorten nor lengthen
               the applicable statute of limitations for any cause of
               action, other than as provided in subsection (a).



       Where a court having jurisdiction of the subject matter of the controversy dismisses a suit

without adjudicating the merits, a new suit for the same relief may be instituted within one year

after the dismissal. T.C.A. § 28-1-105, Turner v. Aldor Co. of Nashville, Tenn. App. 1991, 827

S.W.2d 318 and authorities cited therein.



       However, in the present case, plaintiff did not present his claim against Hurst

Construction Co., Inc., to a tribunal having subject matter jurisdiction of suits against private

individuals and corporations, but to a commission created for the sole purpose of adjudicating

claims against the sovereign state of Tennessee. In reference to the Tennessee Claims

Commission, T.C.A. § 9-8-307 states:



                                               -4-
        (a)(1) The commission or each commissioner sitting
        individually has exclusive jurisdiction to determine all
        monetary claims against the state falling within one (1)
        or more of the following categories:

           (J) Dangerous conditions on state maintained high-
        ways. The claimant under this subsection must esta-
        blish the foreseeability of the risk and notice given to
        the proper state officials at a time sufficiently prior to
        the injury for the state to have taken appropriate mea-
        sures. (Emphasis supplied)


Plaintiff’s brief states:

           Rule 1 of the Tennessee Rules of Civil Procedure
        states in part that the rules apply to Circuit and Chan-
        cery Courts and “in other courts.” The advisory
        comments suggest that the Rules apply to other courts
        of record established by special or private acts of the
        General Assembly. The Tennessee Claims Commission
        was created pursuant to T.C.A. Section 9-8-301. The
        Claims Commission has adopted the Rules of Civil
        Procedure and the Rules of Evidence although the
        Claims Commission does not formally refer to the
        Rules of Civil Procedure.



T.R.C.P Rule 1. states:

                     RULE 1. SCOPE OF RULES

           Subject to such exceptions as are stated in them,
        these rules shall govern the procedure in the circuit and
        chancery courts of Tennessee and in other courts while
        exercising the jurisdiction of the circuit or chancery
        courts, in all civil actions, whether at law or in equity,
        including civil actions appealed or otherwise transferred
        to those courts. These rules shall not be applicable to
        courts of general sessions except in cases where such
        courts by special or private act exercise jurisdiction
        similar to that of circuit or chancery courts. These rules
        shall be construed to secure the just, speedy and
        inexpensive determination of every action. (Emphasis
        supplied)


The Committee Comment under this rule states:

           This rule makes it clear that these Rules establish
        identical procedures for circuit and chancery courts and
        for those other courts of record which have been
        established by special or private acts of the General
        Assembly and which have jurisdiction similar to that of
        the circuit or chancery court, or of both.

                                        -5-
       The Tennessee Claims Commission is not a circuit or chancery court nor is it a court

exercising the jurisdiction of the circuit or chancery courts or similar jurisdiction. It is an

administrative agency created to adjudicate which claims should be paid by the State of

Tennessee despite its sovereign immunity. However, T.C.A. § 9-8-402(b) provides:

                  (b) The 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.
               The filing of the notice by the claimant tolls all statutes of
               limitation as to other persons potentially liable to the claimant
               due to the occurrence from which the claim before the
               commission arises.



       The quoted statute does provide an extension of the statute of limitations for a claim

against a third party wrongdoer disclosed in the answer of the State to a claim filed against the

State before the Claims Commission. However, this statute does not specify the duration of the

extension or the tribunal before which the claim against the third party should be prosecuted.

This statute does not enlarge the jurisdiction of the Claims Commission to authorize it to

adjudicate any claims against the private corporations or individuals, and thus leaves such claims

to the courts. As to the limit of extension, the answer is to be found in T.C.A. § 20-1-119(a)

which provides:

               (a)     In civil actions where comparative fault is or becomes an
               issue, if a defendant named in an original complaint initiating
               a suit filed within the applicable statute of limitations, or named
               in an amended complaint filed within the applicable statute of
               limitations, alleges in an answer or amended answer to the
               original or amended complaint that a person not a party to the
               suit caused or contributed to the injury or damage for which the
               plaintiff seeks recovery, and if the plaintiff’s cause or causes of
               action against such person would be barred by any applicable
               statute of limitations but for the operation of this section, the
               plaintiff may, within ninety (90) days of the filing of the first
               answer or first amended answer alleging such person’s fault,
               either:

               (1)    Amend the complaint to add such person as a defendant
               pursuant to Rule 15 of the Tennessee Rules of Civil Procedure
               and cause process to be issued for that person; or

               (2)     Institute a separate action against that person by filing a
               summons and complaint. If the plaintiff elects to proceed under
               this section by filing a separate action, the complaint so filed
               shall not be considered an “original complaint initiating the suit”

                                               -6-
               or “an amended complaint” for purposes of this subsection.
               (Emphasis added)

               (b)     A cause of action brought within ninety (90) days
               pursuant to subsection (a) shall not be barred by any statute of
               limitations. This section shall not extend any applicable statute
               of repose, nor shall this section permit the plaintiff to maintain an
               action against a person when such an action is barred by an
               applicable statute of repose.



       In the present case, there was no “complaint” to be amended under subsection (a)(2).

Hence, plaintiff’s only recourse was to file a separate action (in a court of law) against Hurst

within 90 days after the response of the State disclosed the involvement of Hurst.



       Plaintiff’s allegation of adoption of the Civil Rules by the Claims Commission is

unsupported by citation. However, even if this has occurred, the Claims Commission has no

authority to add to its statutory powers by adopting rules.



       The Claims Commission had no authority to accept for filing plaintiff’s amendatory claim

against Hurst Construction Co., Inc., which should have been refused or stricken as

improvidently filed.



       Plaintiff asserts that the statute of limitations is suspended by the commencement of a suit

in a court without jurisdiction, citing Williams v. Cravens, 31 Tenn. App. 246, 214 S.W.2d 57

(1948). Examination of the cited authority discloses that the facts upon which it was decided are

not in keeping with the facts of the present case.



       Burns v. Peoples Tel. & Tel. Co., 161 Tenn. 382, 335 S.W.2d 76 (1930), involved a

damage suit brought in Chancery Court and dismissed for lack of subject matter jurisdiction.

The Supreme Court reversed, reviewed a number of authorities, and said:

                  In Sweet v. Electric Light Co., 97 Tenn., 252, a suit was
               brought in the United States District Court, which was
               dismissed by that court for lack of jurisdiction. Within a
               year another suit on the same cause of action was brought

                                               -7-
in the state court and the statute of limitations was inter-
posed by the defendant and held to bar the suit. This court
said:
   “We think the demurrer was properly sustained and the
suit properly dismissed. An action commenced in a Court
having no jurisdiction to entertain it is no action in the
sense of the statute. The matter stands the same as if no
suit had been brought, or attempted to be brought, and the
limitation runs from the date of the injury. If the action is
brought in a Court without jurisdiction, the whole
proceeding is void and of no effect, and if it should pro-
ceed to judgment, the judgment likewise would be void
and without validity.
                      ----

   In Davis v. Parks, 151 Tenn., 321, an action was brought
against the director general of railroads in the wrong county
and was dismissed for lack of jurisdiction. Thereafter,
within one year after the dismissal of the first suit, another
suit on the same cause of action was brought in a proper
Court and the statute of limitations relied on.This court held
that the new suit was not defeated by the statute of limita-
tions and refused to follow Sweet v. Electric Light Co. when
the jurisdiction of the first court in which the suit was brought
failed merely because of the venue. Among other things, it
was said:

   “The case of Sweet v. Electric Co., 97 Tenn., 252, 36 S.W.
1090, does not show the facts with regard to the first suit.
The plaintiff may have been grossly negligent in originally
choosing the forum, for all that appears, and the case may
have been correctly decided on its own facts. But we do not
consider that case authority for the proposition that however
prudently a plaintiff may have acted in choosing his original
forum, and however technical may have been the grounds for
dismissal, a dismissal for want of jurisdiction, under any
circumstances whatsoever, precludes plaintiff from relying
upon the saving statute. Such a proposition is too far
reaching to receive the approval of this court.”
                       ----
   As pointed out in Davis v. Parks, supra, and in Smith v.
McNeal, 109 U. S., 426, 27 L. Ed. 986, there may be
cases in which a plaintiff was grossly negligent in choosing
the forum of his first suit and in which the rule announced
in Sweet v. Electric Light Co., supra, should be applied.
Moran v. Weinberger, supra, proceeded to some extent on
this idea. Under other circumstances, however, Sweet v.
Electric Light Co., will not be followed and may be
considered as overruled, except as indicated. (Emphasis
supplied)




                               -8-
        No authority is cited or found wherein the saving statute was applied to an attempt to

enforce a claim against a private corporation or individual before an administrative agency

created to adjudicate only claims against a sovereign government.



        Since there is no statutory provision for filing plaintiff’s claim against Hurst before

the Claims Commission, and there is express statutory provision for filing plaintiff’s suit

against Hurst in a court of law, it must be concluded that this case comes within the

exception to the liberal rule adopted in Burns v. Peoples Tel. & Tel. Co., supra.



        The circuit court case which is the subject of this appeal was not filed until February

8, 1996, four years and three months after the occurrence of plaintiff’s injury which was

subject to a one year statute of limitation. T.C.A. § 28-3-104.



        Plaintiff’s only response to the defense of statute of limitations is that this suit was filed

within one year after dismissal of his action commenced within the statute of limitation by filing

a claim with an administrative agency having no power to receive or consider the claim.



        1.      Plaintiff’s action was not dismissed by a judgment or decree, but

        2.      Plaintiff’s claim was effectively stricken because the Commission had no

authority to entertain it.

        3.      The action of the commission did not preserve the right of plaintiff to prosecute

the present suit after the expiration of the statute of limitations.



        § 9-8-402(b) that tolls the running of the statute of limitations as to all other potentially

liable persons once a claim is filed. Tenn. R. App. P. 36(a) permits us to consider this statute

even though Mr. Myers did not rely on this section in his brief. This statute must be construed

together with Tenn. Code Ann. § 20-1-119. Accordingly, persons who file a claim with the

claims commission must file a separate action under Tenn. Code Ann. § 20-1-119(b) within



                                                 -9-
ninety days after the State identifies a private party as being totally or partially liable for the

claimant’s injuries. Mr. Myers did not comply with Tenn. Code Ann. § 20-1-119 because the

amendment to his claim seeking damages from a private party was clearly improper.



       The judgment of the Trial Court overruling the motion for summary judgment in favor

of Hurst Construction Co., Inc., is reversed, said motion is sustained, and plaintiff’s suit against

Hurst Construction Co., Inc., is dismissed. All costs of said suit, including costs of this appeal,

are assessed against the plaintiff. This cause is remanded to the Trial Court for entry of an order

consonant with this opinion and for any other further proper proceedings.



                              REVERSED AND REMANDED.



                                               ___________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________
SAMUEL L. LEWIS, JUDGE


_____________________________
WILLIAM C. KOCH, JR., JUDGE




                                               -10-
