                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 April 16, 2013 Session

                   LISA WOMBLE v. STATE OF TENNESSEE

         Appeal from the Tennessee Claims Commission for Eastern Division
                No. T20120068     William O. Shults, Commissioner




                  No. E2012-01711-COA-R3-CV - Filed July 3, 2013


A nurse whose employment at the University of Tennessee Regional Memorial Medical
Center was terminated by the hospital brought a complaint against the State, alleging, inter
alia, breach of contract and negligent deprivation of her property right to her position as a
career state employee. The Claims Commission, William O. Shults, Commissioner,
dismissed the claims, concluding that the Commission was without subject matter
jurisdiction. The nurse appealed. We affirm.

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

T HOMAS R. FRIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined.

George T. Underwood, Jr., Knoxville, Tennessee, for the appellant, Lisa Womble.

Brian A. Lapps, Jr., Deputy General Counsel, The University of Tennessee; Michael D.
Fitzgerald, Assistant General Counsel, The University of Tennessee; and Robert E. Cooper,
Jr., Attorney General and Reporter, for the appellee, State of Tennessee.

                                        OPINION

                          I. Factual and Procedural Background

       The appellant, Lisa Womble, is a registered nurse who began working for the
University of Tennessee Regional Memorial Medical Center (“UT Hospital”) in Knoxville
in June 1988, directly after her graduation from nursing school. She was an operating room
nurse throughout her twenty-two-year career at UT Hospital. That career ended when her
employment was terminated on July 19, 2010. UT Hospital alleged in a termination letter
to Ms. Womble that she had abandoned her work responsibilities for part of her shift on
January 11, 2010, and that “a continuing pattern of patient safety issues, policy violations,
customer satisfaction and behavioral issues” had followed. Ms. Womble’s supervisor at the
time of her termination was Thomas Fields, the Administrative Director of Surgical Services.
Ms. Womble denies the allegations contained in the termination letter. She claims that she
was unfairly targeted after she became ill at work on January 11, 2010, and took medical
leave from that date through March 29, 2010.

       When Ms. Womble began working at UT Hospital, it was owned and managed by the
State of Tennessee through the University of Tennessee (“University”). In July 1999, the
University executed a Lease and Transfer Agreement by which it transferred operation of UT
Hospital to University Health System, Inc. (“UHS”), a private, non-profit corporation. The
Lease and Transfer Agreement was executed pursuant to Tennessee Code Annotated § 49-9-
112 (Supp. 2012), enacted by the Tennessee General Assembly effective May 11, 1998. This
law, commonly referred to as the “Enabling Statute,” states in pertinent part:

       (a) The University of Tennessee is expressly authorized to lease employees to
       any nonprofit corporation created under Tennessee law for the purpose of
       operating a hospital with which the university is affiliated through its medical
       education programs. Employees leased under the authority of this section shall
       remain eligible for all university benefits for which they are otherwise eligible
       and shall be subject to termination, layoff, suspension or demotion only in
       accordance with university personnel policies and procedures.

       Contemporaneously with the Lease and Transfer Agreement, the University and UHS
executed an Employee Services Agreement (“ESA”), by which they agreed that existing UT
Hospital employees would be leased by UHS from the University. New employees would
be hired as UHS employees only. As a UT Hospital employee hired several years before the
transfer, Ms. Womble became an employee leased by UHS and remained so until her
employment was terminated.

        Pursuant to the ESA, the respective leased employees retained their eligibility for the
state retirement program and their access to the grievance and appeals process afforded to
employees of the University. The following sections of the ESA are especially pertinent to
the process applicable to Ms. Womble’s appeal of her termination:

              1.4 Personnel Policies and Procedures. The following personnel
       policies will be applied: (a) As described in Tenn. Code Ann. §49-9-112, and
       only to the extent required therein, UT Hospital Employees shall be subject to

                                              -2-
termination, layoff (reduction in force), suspension, or demotion only in
accordance with the UT Personnel Policies and Procedures, as administered
by UHS; (b) Subject to the preceding Section 1.4(a), each UHS Employee and
UT Hospital Employee will be an at-will employee, and may be terminated at
any time, subject to the provisions of any applicable federal, state and local
laws. After Closing [on July 29, 1999], UHS will be solely responsible for all
aspects of supervision and control (including, but not limited to, salary, shift,
call and overtime) of all UT Hospital Employees and UHS Employees and will
exclusively administrate its own comprehensive personnel system (including,
but not limited to, its own non-discrimination and affirmative action plan and
its own travel and reimbursement policy). Except as provided in this Section
1.4, UT and UT Personnel Policies and Procedures will have no jurisdiction
or authority over the Hospital, UT Hospital Employees or UHS Employees,
other than the responsibility of UHS to faithfully administrate the UT
Personnel Policies and Procedures for UT Hospital Employees with regard to
termination, layoffs, suspension and demotion. UHS shall, at all times, retain
the right to control and direct each UT Hospital Employee, not only as to the
result to be accomplished by the work, but also as to the task and means by
which that result is to be accomplished. UHS shall, at all times, have the right
to direct the time and the place where services shall be performed by UT
Hospital Employees, and (c) subject to Section 1.4(a), UT may apply its UT
Personnel Policies and Procedures to collect debts and obligations owed to it
by UT Hospital Employees or funds subject to garnishment. UT shall have no
obligation to apply its policies and procedures to collect debts owed by UT
Hospital Employees to UHS.

        9.4 Liability With Respect To UT Hospital Employees. UT Hospital
Employees performing services under this Agreement are “loaned servants”
of UHS. Respondeat superior liability for the acts and omissions of UHS
Employees and the acts and omissions of UT Hospital Employees on or after
Closing shall lie solely with UHS. All workers’ compensation liability for
occurrences on or after Closing with respect to UT Hospital Employees shall
lie solely with UHS. At all times during the Term of this Agreement, and at
its expense, UHS shall provide workers’ compensation insurance for UT
Hospital Employees in accordance with applicable Tennessee law.

      9.5 Protection For UT Hospital Employees. UT and UHS understand
and agree that in performing services under this Agreement, the UT Hospital
Employees are state employees “employed in the service of the state” and their
“compensation is payable by the state” within the meaning of Tenn.Code Ann.

                                       -3-
       § 8-42-101(3)(A) and Tenn. Code Ann. § 8-34-101(18). Therefore, UT and
       UHS understand and agree that the UT Hospital Employees remain eligible to
       participate in the UT Retirement Plans and other UT Benefit Plans and remain
       eligible to raise the absolute immunity defense provided in Tenn. Code Ann.
       § 9-8-307(h) against individual or personal liability for acts or omissions
       within the scope of their employment. Notwithstanding the above, UT and
       UHS agree that all respondeat superior liability for the acts and omissions of
       the UT Hospital Employees lies solely with UHS, which will exercise
       exclusive direction and control over the performance of services by UT
       Hospital Employees under this Agreement. UHS shall indemnify, defend, and
       hold harmless UT Hospital Employees against all individual or personal
       liability for Damages arising out of, attributable to, or in connection with, any
       act or omission of a UT Hospital Employee in the performance of services
       under this Agreement, except for willful, malicious, or criminal acts or
       omissions, or for acts or omissions done for personal gain.

        Ms. Womble has filed claims related to her employment termination in three venues.
First, Ms. Womble’s termination letter informed her that as a “UT leased employee,” she had
the right to appeal her termination through either an informal hearing under UHS’s
“Complaint Resolution Policy” or through a formal hearing, with the right to counsel, under
the Tennessee Uniform Administrative Procedures Act, Tennessee Code Annotated § 4-5-
101, et seq. (“TUAPA”). Ms. Womble chose the latter process and timely notified UHS
Human Resources of her desire to appeal under TUAPA. A hearing was conducted at UT
Hospital on September 29, 2011, before Hearing Officer Joan Sompayrac, appointed by
Chancellor Steve J. Schwab. A transcript of this hearing is contained in the record for the
instant appeal, but no copy of the hearing officer’s ruling is included. The parties state in
their briefs, however, that the TUAPA hearing officer determined that Ms. Womble was not
an employee of the State and was therefore not owed a name-clearing hearing or due process.
Ms. Womble has appealed this decision to the Davidson County Chancery Court pursuant
to Tennessee Code Annotated § 4-5-322(b)(1)(A) (Supp. 2012). No adjudication from the
Davidson County Chancery Court appears in this appellate record.

       Second and nearly contemporaneously with the claim at issue in this cause, Ms.
Womble filed a complaint against UHS and Thomas Fields in the Knox County Circuit Court
on July 18, 2011. A copy of that complaint is included in the record for the instant appeal.
The circuit court complaint alleged breach of contract, wrongful termination, violation of 42
United States Code § 1983 due process rights, misrepresentation, fraud, deceit, malice,
violation of policies and procedures guaranteed to state employees, and violation of the
Tennessee Human Rights Act (“THRA”) prohibitions against age and disability
discrimination. See T.C.A. § 4-21-101, et seq. (Supp. 2012). UHS and Mr. Fields filed a

                                              -4-
motion for summary judgment, which the circuit court denied on all counts except the 42
United States Code § 1983 claim. The court granted summary judgment to UHS on that
claim and attendant thereto, found the Enabling Statute, T.C.A. § 49-9-112, to be
unconstitutional. The circuit court granted permission for the parties to apply for
interlocutory appeal with this Court, pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure. Ms. Womble, UHS, and the Attorney General all filed applications for
interlocutory appeal, which this Court granted in an Order entered on February 20, 2013.
The interlocutory appeal is pending as of the date of the filing of this decision.1

        Ms. Womble’s third case is the one at issue in the present appeal. This action was
initially filed with the Division of Claims Administration on July 15, 2011. Ms. Womble’s
claim alleged breach of contract and violation of due process. The administrative division
transferred Ms. Womble’s claim to the Claims Commission on October 13, 2011, because
the division had been unable to act on the claim for ninety days. See T.C.A. § 9-8-402(c)
(Supp. 2012) (“If the division fails to honor or deny the claim within the ninety-day
settlement period, the division shall automatically transfer the claim to the administrative
clerk of the claims commission.”). Notice of the transfer sent to Ms.Womble included a
requirement that a formal complaint be filed with the Commission within thirty (30) days of
the notice. On March 26, 2011, the Commission entered an order directing that Ms. Womble
show cause why her claim should not be dismissed because she had not yet filed a formal
complaint. Ms. Womble filed a response the next day, attaching her complaint as well as
documentation of her TUAPA and circuit court claims. Her complaint sought, inter alia,
$1,500,000.00 in compensatory damages and alleged ten theories of liability: (1) breach of
contract, (2) outrageous conduct, (3) violation of 42 United States Code § 1983, (4) wrongful
termination, (5) violations of the THRA, (6) misrepresentation, (7) fraud, (8) deceit, (9)
malice, and (10) negligence. Upon the Commission’s request, the State filed a response,
after which the Commission conducted a hearing on May 31, 2012.

       Following the hearing, which focused primarily on oral arguments regarding subject
matter jurisdiction, Commissioner William O. Shults entered an Order of Dismissal on July
5, 2012. The Commission’s Order provided in pertinent part:




        1
         We have gleaned procedural information regarding the Knox County Circuit Court case and
interlocutory appeal to this Court from pleadings attached to the motion to consolidate with this appeal, the
procedural history summarized by the parties in their briefs, and the Appellate Court Clerk’s procedural
records. See Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App. 2005) (holding that pursuant to Rule
201 of the Tennessee Rules of Evidence, a court may take judicial notice of facts “capable of accurate and
ready determination” in its own proceedings).

                                                    -5-
Ms. Womble asserts in her post-hearing brief that she is a third party
beneficiary of the 1999 agreement entered into by UT and UHS. This
argument, while facially appealing, neither comports with the provisions of
Tenn. Code Ann. 9-8-307(a)(1)(L) or cases that have considered that statutory
provision. In Computer Shoppe, Inc. v. State of Tennessee, 780 S.W.2d 729
(Tenn. Ct. App. 1989), perm. app. d’nd November 27, 1989, the Middle
Section of the Court of Appeals sets out a succinct history of how the State’s
waiver of sovereign immunity in contract cases has evolved since 1977.
Initially, the Legislature waived immunity in cases involving alleged breaches
of both express written and oral contracts as well as implied contracts. Shortly
thereafter, the wavier was rescinded in implied contract cases. Finally, in
1989, the Tennessee Claims Commission Act, at the request of the Attorney
General, was amended to delete our jurisdiction over cases alleging breaches
of oral agreements. The language in subsection (L) has not been amended
since that time and clearly provides that the Commission has jurisdiction over
cases only when there is an alleged “breach of a written contract between the
claimant and the state . . . executed by one (or more) state officers or
employees with authority to execute the contract; . . . .” Id. at 735-736.

        This narrow construction of Tenn. Code Ann. § 9-8-307(a)(1)(L)
evidences a clear legislative intent to waive the State’s sovereign immunity
against suit in contractual settings only where there is an express written
contract between the State and a particular entity or individual. This
construction of the provision is consistent with cases which have said clearly
that the Claims Commission Act, being in derogation of the State’s common
law sovereign immunity against suit, must be narrowly construed. See State,
ex rel. Allen v. Cook, 106 S.W.2d 858, 860 (Tenn. 1937); State v. Conley, 141
S.W.3d 591, 597 (Tenn. 2004). Moreover, our research has uncovered no
cases in which a third party beneficiary theory has been successful under the
Tennessee Claims Commission Act.

       Put simply, there is no express written contract between Ms. Womble
and the State. That is a sine qua non for Commission jurisdiction in cases
alleging breach of contract.

...

     Ms. Womble also argues in her post-hearing filing that under the
Employee Services Agreement, UHS was cloaked with State authority to
manage the rights afforded to UHS employees under that agreement, and that

                                      -6-
in so doing, the State was negligent in monitoring the actions of Ms. Womble’s
departmental supervisor, Mr. Fields, who failed to afford her those rights
found in Tenn. Code Ann. § 8-30-331 thus denying her due process of law.

        There are several problems with this creative but unsupportable theory.
First, Tenn. Code Ann. § 8-30-331 was at the time found within the provisions
of the law creating the Tennessee Civil Services Commission.[FN]5 Tenn. Code
Ann. § 9-8-307(a)(1)(N) clearly provides that the Commission does have
jurisdiction in cases alleging a “[n]egligent deprivation of statutory rights
created under Tennessee law except for actions arising out of claims over
which the Civil Service Commission has jurisdiction.” (Emphasis added).
Therefore, cases involving a deprivation of employment rights found in Tenn.
Code Ann. § 8-30-331, assuming Mr. Fields and Ms. Womble were both State
employees, would have been dealt with initially by the Civil Service
Commission and not the Claims Commission. The Commission must reiterate,
though, that after July 1999, neither of these individuals were classified as
State employees.

[FN]5
   This provision, along with sections providing for the structure and the
implementation of the Tennessee civil service system was repealed in 2012
with the passage of 2012 Tenn. Pub. Law, Public Chapter 800 (HB 2384).
However, this repeal does not impact this case since the underlying facts
occurred before the effective date of the 2012 legislation.

        Additionally, it has been held several times by our appellate courts that
in order for a claimant to have a cause of action under subsection (N), the
statutory provision relied on must specifically provide for such. Brown v.
State, 333 S.W.3d 102, 105 (Tenn. Ct. App. 2010). We find nothing in Tenn.
Code Ann. § 8-30-331 granting to an alleged State employee, such as Ms.
Womble, the right to bring a claim against the State for this sort of grievance.

       Lastly, there is a separate issue with Ms. Womble’s allegation that the
State negligently failed to supervise Mr. Fields, who she claims, was cloaked
with State authority, and that his actions resulted in a deprivation of her
constitutional property right to continued employment at the hospital. Aside
from the fact that Fields was not a State employee at the time of Ms. Womble’s
discharge in 2010 nor was Ms. Womble after the ESA was entered into in July
1999, the Commission clearly has not had jurisdiction over this category of
constitutional claims since 1989.



                                       -7-
               In the leading case addressing the issue of whether the Commission has
       jurisdiction over claims alleging a negligent deprivation of constitutional
       rights, Shell v. State, 893 S.W.2d 416 (Tenn. 1995), the Tennessee Supreme
       Court traced the history of this Commission’s jurisdiction in such cases.
       Following the United States Supreme Court’s decision in Daniels v. Williams,
       474 U.S. 327, 106 S.Ct. 662 (1986), the General Assembly amended
       subsection (N) to delete our jurisdiction over cases alleging a negligent
       deprivation of constitutional rights in light of the Daniels holding. See Acts
       of 1989, Ch. 491, Section I, 1989 Tenn. Pub. Acts 853, 854; Shell, 893 S.W.2d
       at 418.

              Therefore, we have not had any jurisdiction since 1989 over claims
       alleging a negligent deprivation of constitutional rights.

        Ms. Womble timely appealed. She subsequently filed a motion with this Court to
consolidate the application for interlocutory appeal from the circuit court case with this
appeal of the Commission’s dismissal. This Court denied the motion for consolidation on
January 15, 2013, citing as a basis for denial the objections proffered by UHS in its response
to the motion to consolidate. These objections included that (1) the motion was premature
and (2) the interlocutory appeal is specific to the constitutionality of the Enabling Statute and
should not be mixed with the issue of subject matter jurisdiction before the Commission that
is the crux of the instant appeal.

                                     II. Issues Presented

       On appeal, Ms. Womble presents two issues, which we have restated as follows:

       1.     Whether the Claims Commission erred by dismissing Ms. Womble’s contract
              and negligence claims on the basis of its lack of subject matter jurisdiction
              without considering the constitutional validity of the Enabling Statute or the
              ESA.

       2.     Whether, under the ESA, Ms. Womble has enforceable third-party beneficiary
              rights as a career state employee.

                                   III. Standard of Review

       Subject matter jurisdiction over claims presented to the Claims Commission is a
question of law, which we review de novo with no presumption of correctness for the
conclusions of law made by the Commission. See Mullins v. State, 320 S.W.3d 273, 278

                                               -8-
(Tenn. 2010) (citing Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000); Northland Ins. Co.
v. State, 33 S.W.3d 727, 729 (Tenn. 2000)); Williams v. State, 139 S.W.3d 308, 311 (Tenn.
Ct. App. 2004) (citing Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001)).

                              IV. Subject Matter Jurisdiction

       Ms. Womble contends that the Claims Commission erred by ruling that it did not have
subject matter jurisdiction over her breach of contract and negligence claims. She does not
challenge the Commission’s dismissal of the other eight counts included in her complaint.
For the contract and negligence claims, however, Ms. Womble argues that the Commission’s
decision was based on its conclusion that she was not a state employee and that this
conclusion was grounded in the Commission’s finding that the Enabling Statute and the ESA
were valid. She argues that she had a property interest in her position at UT Hospital and that
the State was required to provide her with due process before it terminated her employment,
thereby depriving her of that property interest.

       An individual’s right to due process to protect a property right is secured through the
Fourteenth Amendment to the United States Constitution. See Bd. of Regents v. Roth, 408
U.S. 564, 576-77 (1972) (“Property interests, of course, are not created by the Constitution.
They are created and their dimensions are defined by existing rules or understanding that
stem from an independent source such as state laws-rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.”). Depending upon
the conditions of their appointment, public employees may have a property interest in their
expectation of continued employment. See id. at 578.

       The State posits that the Claims Commission correctly dismissed Ms. Womble’s
action because the Commission has only limited jurisdiction pursuant to the Tennessee
General Assembly’s limited waiver of sovereign immunity. The State further argues that the
Commission lacks subject matter jurisdiction over any claims for deprivation of
constitutional rights, including the right to due process through the Fourteenth Amendment.
We agree.

       Our Supreme Court has succinctly described subject matter jurisdiction and how it is
conferred on a tribunal:

       The concept of subject matter jurisdiction involves a court’s lawful authority
       to adjudicate a controversy brought before it. See Meighan v. U.S. Sprint
       Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Standard Sur. &
       Casualty Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943).

                                              -9-
       Subject matter jurisdiction involves the nature of the cause of action and the
       relief sought, see Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and
       can only be conferred on a court by constitutional or legislative act. See Kane
       v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Computer Shoppe, Inc. v. State,
       780 S.W.2d 729, 734 (Tenn. Ct. App. 1989).

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

        It is well settled that the State possesses sovereign immunity from lawsuits, “except
as it consents to be sued.” Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000) (citing Hawks
v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997); Brewington v. Brewington, 387
S.W.2d 777, 779 (Tenn. 1965)). The Claims Commission was created by the General
Assembly in 1984 to “hear and determine claims against the State,” pursuant to the
legislature’s “constitutional prerogative to allow suits against the State.” Mullins, 320
S.W.3d at 278-79 (citing Act of May 24, 1984, ch. 972, §§ 1, 5(a), 1984 Tenn. Pub. Acts
1026, 1027-28 (codified at T.C.A. § 9-8-301(a),-305(1) (Supp. 1984)).

      The Commission’s jurisdiction is confined to monetary claims within specific
categories enumerated in Tennessee Code Annotated § 9-8-307(a)(1) (Supp. 2012). See
Mullins, 320 S.W.3d at 279; Conley v. State, 141 S.W.3d 591, 597 (Tenn. 2004). The
categories at issue for the breach of contract and negligence claims in this appeal are:

       (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 (a) 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;

       ...

       (N)    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 (a)(1)(N) 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; . . .



                                             -10-
T.C.A. 9-8-307(a)(1). The Claims Commission only has subject matter jurisdiction to hear
Ms. Womble’s claims if those claims meet the requirements of these statutory descriptions.
See Mullins, 320 S.W.3d at 283 (“In determining whether the General Assembly intended to
waive sovereign immunity for a claim against the State of Tennessee by providing
jurisdiction to the Claims Commission, our primary focus must remain on the actual words
chosen and enacted by the legislature.”); Northland Ins., 33 S.W.3d at 728 (“[A] waiver of
sovereign immunity must be clear and unmistakable . . . .”).

        The Claims Commission found that there was “no express written contract between
Ms. Womble and the State.” In so finding, the Commission correctly noted that an express
written contract is an indispensable condition for the Commission to have subject matter
jurisdiction over a claim for breach of contract. See T.C.A. § 9-8-307(a)(1)(L); Ku v. State,
104 S.W.3d 870, 876 (Tenn. Ct. App. 2002) (holding that because a college handbook did
not constitute a written contract, the Claims Commission properly dismissed a student’s
breach of contract claim for lack of subject matter jurisdiction). Ms. Womble maintains that
she remained a state employee after UHS began operating UT Hospital in 1999. She does
not propose that under the Enabling Statute and the ESA, she has an express contract with
the State. Instead, she argues that the Commission erred by giving credence to the Enabling
Statute and the ESA because said statute and agreement violated her constitutional right to
due process before being deprived of a property right in career state employment.

       As Ms. Womble concedes, the Commission does not have jurisdiction over claims
arising from intentional acts of state actors. See T.C.A. § 9-8-307(a)(1). More to the point,
the Commission’s jurisdiction over claims arising from negligent acts of state actors does not
extend to acts that allegedly deprive the claimant of a constitutional right. See Daniels v.
Williams, 474 U.S. 327, 334 (1986) (holding that negligence by state officials does not
implicate the due process clause); Shell v. State, 893 S.W.2d 416, 419-20 (Tenn. 1995)
(holding that the General Assembly’s amendment to Tennessee Code Annotated § 9-8-
307(a)(1)(N), enacted in light of the Daniels decision, removed any cause of action before
the Claims Commission for negligent deprivation of a constitutional right). We conclude that
the Claims Commission does not have subject matter jurisdiction to consider the
constitutionality of the Enabling Statute or the validity of the ESA in terms of an alleged
deprivation of employees’ constitutional rights.

        Inasmuch as we have determined that the Claims Commission lacks subject matter
jurisdiction over claims arising from intentional or negligent deprivation of a constitutional
right, it follows that the Commission does not have jurisdiction either to analyze the
constitutionality of the Enabling Statute and the validity of the ESA or to hear a claim arising
from the alleged negligent deprivation of Ms. Womble’s property right in her position. The
only negligence claim left to Ms. Womble that could be within the Claims Commission’s

                                              -11-
jurisdiction is the negligent deprivation of a statutory right, pursuant to Tennessee Code
Annotated § 9-8-307(a)(1)(N). Ms. Womble argues that the State, by cloaking UHS and Mr.
Fields with state authority, negligently monitored the departmental supervision over Ms.
Womble and thereby deprived her of the rights afforded to state career employees in
Tennessee Code Annotated § 8-30-331 (2010).

       As the Commission noted in its Order, Tennessee Code Annotated § 8-30-331 was
repealed in 2012; the 2010 version of the statute controls in this case. See 2012 Tenn. Pub.
Acts ch. 800, § 41. The 2010 version provides in pertinent part:

       (a) Employees who have successfully completed their probationary period
       have a “property right” to their positions. Therefore, no suspension, demotion,
       dismissal or any other action which deprives a regular employee of such
       employee’s “property right” will become effective until minimum due process
       is provided as outlined below.

T.C.A. § 8-30-331(a) (2010) (enumerating due process procedures in subsequent
paragraphs). It is undisputed that this statute, contained within the Civil Service chapter of
the Code, applies only to public employees. Ms. Womble’s primary argument on appeal
regarding the alleged deprivation of her due process rights under this statute is that the
Commission erred, again by upholding the Enabling Statute and the ESA, in finding that Ms.
Womble was not a state employee. Ms. Womble concedes that the “Claims Commission
lacked authority to address the constitutionality of the enabling statute or declaratory
judgment authority to declare the ESA invalid and enjoin its enforcement.” (Appellant’s
Brief 4.) She urges this Court to analyze the constitutionality of the Enabling Statute. We
will not reach such an analysis here because what is at issue in this appeal is whether the
Claims Commission erred in finding that it lacked subject matter jurisdiction. See Dorrier
v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a court of appeals and errors, and we
are limited in authority to the adjudication of issues that are presented and decided in the trial
courts . . . .”).

       The Claims Commission notes also in its Order that if Ms. Womble had been a state
employee at the time of her termination, a deprivation of her statutory right under Tennessee
Code Annotated § 8-30-331 would not have been within the jurisdiction of the Claims
Commission because a claim under that statute, as part of the Civil Service Code, would have
arisen under the Tennessee Civil Service Commission, and Civil Service Commission claims
are expressly exempted from the jurisdiction allocated to the Claims Commission for
negligent deprivation of a statutory right. We agree. See T.C.A. § 9-8-307 (a)(1)(N);
Armstrong v. Tenn. Dep’t of Veterans Affairs, 959 S.W.2d 595, 597 (Tenn. Ct. App. 1997)
(noting in a review of a claim filed with the Civil Service Commission that “Career service

                                              -12-
employees who have completed their initial working test periods are called ‘regular
employees’ and they are given certain protections under the Civil Service Code.”) (internal
citation omitted).

        We conclude that in determining whether it had subject matter jurisdiction over Ms.
Womble’s claims, the Commission properly considered Ms. Womble’s employment under
the Enabling Statute and the ESA and properly found that she did not have an express written
contract with the State. We therefore hold that the Commission lacked subject matter
jurisdiction over Ms. Womble’s breach of contract claim. We further hold that because the
Commission does not have jurisdiction over claims alleging negligent deprivation of a
constitutional due process right and because it did not have jurisdiction over Ms. Womble’s
claim that she was deprived of a statutory due process right, the Commission lacked
jurisdiction over Ms. Womble’s negligence claim.

                             V. Third-Party Beneficiary Rights

       Ms. Womble contends that under the ESA, she has enforceable rights as an intended
third-party beneficiary because the leased UT Hospital employees were intended third-party
beneficiaries of the ESA. The State asserts that third-party claims fall outside the limited
waiver of sovereign immunity for breach of contract claims. We agree with the State’s
position.

        As explained above, the Tennessee General Assembly has provided for a waiver of
sovereign immunity before the Claims Commission only for those contract claims that arise
from “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 . . . .”
See T.C.A. § 9-8-307(a)(1)(L); Ku, 104 S.W.3d at 876. Ms. Womble concedes that the ESA
is not an express contract between the State and her, but she argues that as a leased employee
under the ESA, she was one of a group of intended beneficiaries to the contract. We note
that the ESA contains the following provision expressly denying the agreement’s application
to benefit third parties:

       11.7 No Third-Party Beneficiaries. This Agreement does not confer any
       benefit or right upon any Person other than UT and UHS, and no party
       claiming third-party beneficiary status shall be entitled to enforce any
       obligation, responsibility or claim of either party to this Agreement.

       In support of her position, Ms. Womble cites this Court’s decision in Coburn v. City
of Dyersburg for the proposition that a government entity can have contract liability to a
third-party beneficiary if that party can show that “the contract was intended by the parties

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to confer a direct obligation” on her as an “identifiable” third party. See 774 S.W.2d 610,
612 (Tenn. Ct. App. 1989). The action at issue in Coburn is distinguishable from the action
in this case because in Coburn, the action arose under the Tennessee Governmental Tort
Liability Act, T.C.A. § 29-20-101, et seq. (2010), and was heard in circuit court. See
Coburn, 774 S.W.2d at 611. We find no legal authority providing for a third-party
beneficiary action against the State before the Claims Commission. We maintain that a
“waiver of sovereign immunity must be clear and unmistakable.” See Northland Ins., 33
S.W.3d at 728.

       We conclude that the Claims Commission correctly found that it does not maintain
subject matter jurisdiction over a third-party beneficiary claim because such a claim does not
lie within the parameters of allowed claims under Tennessee Code Annotated 9-8-
307(a)(1)(L). The issue of whether Ms. Womble could be construed as a third-party
beneficiary of the ESA is therefore pretermitted as moot.

                                      VI. Conclusion

       For the reasons stated above, we affirm the order of the Tennessee Claims
Commission dismissing this action for lack of subject matter jurisdiction. This case is
remanded to the Claims Commission, pursuant to applicable law, for such further
proceedings as may be required, if any, and for collection of costs assessed below. The costs
on appeal are assessed against the Appellant, Lisa Womble, and her surety, for which
execution may issue if necessary.




                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE




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