                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                           Assigned on Briefs October 20, 2003



               LLOYD E. WILLIAMS v. STATE OF TENNESSEE


            Appeal from the Claims Commission for the Eastern Grand Division
                   No. 20300711    Vance W. Cheek, Jr., Commissioner

                                  FILED JANUARY 23, 2004

                                No. E2003-01409-COA-R3-CV



Lloyd E. Williams (“Plaintiff”), who absconded while on bond, was tried, convicted, and sentenced
on drug charges in absentia. Years later, Plaintiff was apprehended and placed in prison. Plaintiff
sued the State of Tennessee (“the State”) claiming that the trial and sentencing violated various
statutory rights of his. The State filed a motion to dismiss. The Claims Commission (“the
Commission”) granted the State’s motion to dismiss. Plaintiff appeals. We affirm.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.


Lloyd E. Williams, Tiptonville, Tennessee, pro se Appellant.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Tiffany
Baker Cox, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee.
                                              OPINION

                                            Background

                Plaintiff was arrested and indicted on drug charges in 1992. He was released on bond
on January 5, 1993, but failed to appear at his trial. Plaintiff spoke to his attorney by phone several
times during the trial and after sentencing. Although his attorney advised him to turn himself in,
Plaintiff declined to do so and remained a fugitive.

               Plaintiff was convicted and sentenced in absentia to fifty-four years in prison by
Judge Arden Hill. Plaintiff remained a fugitive until June of 2001, when he was apprehended and
placed in prison to serve his sentence.

               In November of 2001, Plaintiff filed a petition for post conviction relief claiming he
just realized he had suffered an injury. That petition was denied based upon the statute of
limitations. The denial of post conviction relief was affirmed by the Court of Criminal Appeals in
September of 2002.

                In November of 2002, Plaintiff filed his claim against the State with the Division of
Claims Administration alleging that Judge Hill deprived him of his statutory rights because the
indictments against him were void and because he was tried, convicted, and sentenced in absentia.
Plaintiff amended his claim to also allege he received ineffective assistance of counsel from his
court-appointed attorney, Donald Spurrell. The claim was transferred from the Division of Claims
Administration to the Claims Commission pursuant to Tenn. Code Ann. § 9-8-402(c). The State
filed a motion to dismiss. The Commission granted the motion to dismiss based upon a lack of
subject matter jurisdiction, failure to state a claim upon which relief can be granted, and the
expiration of the statute of limitations. Plaintiff appeals to this Court.

                                              Discussion

                Although not stated exactly as such, Plaintiff raises three issues on appeal: 1) whether
the Commission erred in holding it lacked subject matter jurisdiction; 2) whether the Commission
erred in holding Plaintiff’s claims are barred by the statute of limitations; 3) whether Tenn. Code
Ann. § 9-8-307(a)(1)(N) is unconstitutional. The State raises two additional issues: 1) whether
Plaintiff’s claims are barred by absolute judicial immunity; and 2) whether the State is liable for the
actions of Attorney Spurrell, Plaintiff’s court-appointed attorney.

                 Whether the Commission has subject matter jurisdiction over the claims contained
in Plaintiff’s complaint is a question of law. With respect to legal issues, our review is conducted
“under a pure de novo standard of review, according no deference to the conclusions of law made
by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706,
710 (Tenn. 2001). As our Supreme Court stated in Northland Ins. Co. v. State:



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               A motion to dismiss for lack of subject matter jurisdiction falls under
       Tennessee Rule of Civil Procedure 12.02(1). 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). 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). Since a determination of whether
       subject matter jurisdiction exists is a question of law, our standard of review is de
       novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores, Inc., 8
       S.W.3d 625, 628 (Tenn. 1999).

                                                ***

               Article I, section 17 of the Tennessee Constitution provides that "[s]uits may
       be brought against the State in such manner and in such courts as the Legislature may
       by law direct." This constitutional provision reflects sovereign immunity, the notion
       that a sovereign governmental entity cannot be sued in its own courts without its
       consent. See State v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937); Tenn.
       Code Ann. § 20-13-102 ("No court in the state shall have any power, jurisdiction, or
       authority to entertain any suit against the state ... with a view to reach the state, its
       treasury, funds, or property ..."). As a general interpretive matter, this Court has held
       that the principle of sovereign immunity requires that legislation authorizing suits
       against the state must provide for the state's consent in "plain, clear, and
       unmistakable" terms. Cook, 171 Tenn. at 611, 106 S.W.2d at 861; see also Beare
       Company v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986). We must therefore carefully
       analyze the statute granting jurisdiction to the Tennessee Claims Commission, which
       this Court has previously held creates a "sweeping procedure for filing monetary
       claims against the state." Hembree v. State, 925 S.W.2d 513, 516 (Tenn. 1996).

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

               The statute granting jurisdiction to the Commission, Tenn. Code Ann. § 9-8-307
provides, in pertinent part:

       (a)(1) The commission or each commissioner sitting individually has exclusive
       jurisdiction to determine all monetary claims against the state based on the acts or
       omissions of “state employees,” as defined in § 8-42-101(3), falling within one (1)
       or more of the following categories:

                                                ***


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       (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 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; . . .

Tenn. Code Ann. § 9-8-307 (a)(1) (2003).

                We, therefore, must look at the statutes Plaintiff bases his claims upon to determine
if they expressly confer a private right of action in favor of a claimant against the State. After a
careful review of the statutes upon which Plaintiff bases his claim, i.e., Tenn. Code Ann. §§ 40-3-
101; 40-14-101; 40-14-102; 40-17-105; and 40-18-118, we hold that none of these statutes expressly
confers a private right of action. Plaintiff also alleges he was deprived of statutory rights pursuant
to Tennessee Rule of Criminal Procedure 43. This claim is without merit because Tenn. R. Crim.
P. 43 is a rule of criminal procedure, not a statute, and, in any event, it certainly does not confer a
private right of action in favor of Plaintiff. We hold that the Commission properly held it lacked
subject matter jurisdiction and that Plaintiff failed to state a claim upon which relief can be granted.

                We next consider whether the Commission erred in holding Plaintiff’s claims, if any,
are barred by the statute of limitations. Therefore, we look to Tenn. Code Ann. §§ 9-8-402(b) and
28-3-104 to determine the appropriate statute of limitations. Tenn. Code Ann. § 9-8-402(b) deals
with claims filed with the Division of Claims Administration and provides: “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. . . .” Tenn. Code Ann. § 9-8-402(b) (2003).
In pertinent part, Tenn. Code Ann. § 28-3-104 provides: “The following actions shall be commenced
within one (1) year after the cause of action accrued: . . . (4) Actions for statutory penalties. . . .”
Tenn. Code Ann. § 28-3-104(a) (2003).
                Plaintiff was tried, convicted, and sentenced in 1993. He filed his claim against the
State in November of 2002, well beyond the one-year statute of limitations. Thus, Plaintiff’s claim
is barred by the statute of limitations unless it is tolled for some reason.

                Plaintiff claims that the discovery rule should apply to toll the statute of limitations
because he did not learn or discover he had suffered an injury until November of 2001. However,
“the discovery rule only applies to matters of fact that may be unknown to a prospective plaintiff,
and not to matters of law.” Spar Gas, Inc. v. McCune, 908 S.W.2d 400, 404 (Tenn. Ct. App. 1995).
Plaintiff had full knowledge of the facts relevant to his alleged injury when it occurred because he
knew he was tried and sentenced even though he was not present in court. Plaintiff argues there is
no evidence that he “knew that his trial in absentia was illegal and therefore injurious to [him].”
However, there is abundant evidence that Plaintiff knew he was being tried and sentenced. Plaintiff
had knowledge of the relevant facts. The discovery rule cannot be used to toll the statute of
limitations because of Plaintiff’s claimed lack of knowledge about the law. We hold the discovery
rule does not apply and the Commission properly held Plaintiff’s claims are barred by the statute of
limitations.


                                                  -4-
               We next consider whether Tenn. Code Ann. § 9-8-307(a)(1)(N) is unconstitutional.
We note that Plaintiff did not raise this issue below. Our Supreme Court has unequivocally stated:

               It has long been the general rule that questions not raised in the trial court will
       not be entertained on appeal and this rule applies to an attempt to make a
       constitutional attack upon the validity of a statute for the first time on appeal unless
       the statute involved is so obviously unconstitutional on its face as to obviate the
       necessity for any discussion.

Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983).

               The statute in question, Tenn. Code Ann. § 9-8-307(a)(1)(N), is not “so obviously
unconstitutional on its face as to obviate the necessity for any discussion.” Id. It is not vague,
ambiguous, or overbroad. It does not create a classification or unequally affect any one class of
people more than another. Therefore, we will not entertain this issue raised for the first time on
appeal.

                Our determination of the foregoing issues pretermits the necessity of considering
whether Plaintiff’s claims are barred by absolute judicial immunity. We, however, will address the
final issue raised by the State: whether the State is liable for the actions of Attorney Spurrell,
Plaintiff’s court-appointed attorney. The issue of whether a court- appointed attorney is considered
a state employee is specifically addressed in Tenn. Code Ann. § 8-42-103. In general, this statutory
section gives the attorney general discretion to provide legal representation to state employees who
have been sued because of certain acts or omissions committed within their scope of employment.
The statute provides unequivocally that court-appointed attorneys are to be considered state
employees, but only for purposes of the attorney general having discretion to provide legal
representation when a court-appointed attorney is sued, assuming the other statutory requirements
are met. In relevant part, the statute provides:

               (a) When a civil action for damages is commenced in any court by any
       person against any state employee as defined in this chapter for any acts or omissions
       of the state employee within the scope of the employee's employment, except for
       willful, malicious, or criminal acts or omissions or for acts or omissions done for
       personal gain, the attorney general and reporter has the discretion to provide
       representation to the employee. . .

              (b) For the exclusive purpose of this section, "state employee" also includes
       attorneys appointed by a court, or other agency authorized by law to make such
       appointments, to represent an indigent when a civil action for damages is commenced
       against such attorney for any act or omission in the course of representing such
       indigent. Notwithstanding any provision of law to the contrary, such attorney shall



                                                  -5-
       not be considered a state employee for any other purpose including, but not limited
       to, §§ 9-8-112 and 9-8-307.

Tenn. Code Ann. § 8-42-103 (2003) (emphasis added).

                We believe the intent of the legislature is quite clear from the statute itself. Tenn.
Code Ann. § 8-42-103(b) clearly states that a court-appointed attorney is not considered a “state
employee” for purposes of Tenn. Code Ann. § 9-8-307, the statutory provision which waives the
state’s sovereign immunity in certain specific instances and which confers subject matter jurisdiction
on the Commission to resolve those claims. Accordingly, the Commission has no subject matter
jurisdiction to hear a claim against the State for alleged legal malpractice arising out of the acts or
omissions of a court-appointed attorney. Notwithstanding the foregoing, if a legal malpractice action
is brought against a court-appointed attorney, as opposed to the state, arising out of acts or omissions
occurring during the court-appointed representation, then the attorney general has discretion to
provide that attorney with legal representation. This Court reached the very same conclusion in
Taylor v. State, No. 02A01-9508-BC-00229, 1996 Tenn. App. LEXIS 389 (Tenn. Ct. App. July 3,
1996), no appl. perm. appeal filed. In Taylor, we affirmed the dismissal of a legal malpractice
lawsuit filed with the Commission against the State of Tennessee arising out of alleged acts or
omissions of a court-appointed attorney. We concluded the Commission lacked subject matter
jurisdiction over such a claim, reasoning as follows:

        The crux of Title 8, Chapter 42 of the Code is found in T.C.A. § 8-42-103, entitled
        "Defense Counsel for State Employees." This section states that under certain
        defined conditions, a state employee who is sued in a civil action for damages for any
        act or omission in the course of his employment will be provided defense counsel by
        the state. T.C.A. § 8-42-103(b) states in simple terms that a court-appointed attorney
        assigned to represent an indigent who is thereafter sued by the indigent for damages
        arising as a result of this representation is a "state employee," and may avail himself
        of defense counsel provided by the state. As noted, T.C.A. § 8-42-103(b) specifically
        provides that such attorney will not be considered a state employee for any other
        purpose, including, but not limited to, T.C.A. § 9-8-307, which delineates the
        jurisdiction of the Tennessee Claims Commission.

Taylor, 1996 Tenn. App. LEXIS 389, at **3- 4.

                In the present case, we agree with the State that the Commission has no subject matter
jurisdiction over the allegations contained within Plaintiff’s complaint because, among other reasons,
Plaintiff’s court-appointed attorney was not a state employee, and for this reason that claim was
subject to dismissal. Even though the Commission never decided this specific issue, it nevertheless
reached the correct result when it dismissed the entire complaint for lack of subject matter
jurisdiction based upon other reasons, and for expiration of the statute of limitations. We affirm the
Commission’s judgment dismissing the complaint.



                                                  -6-
                                           Conclusion

              The judgment of the Claims Commission is affirmed, and this cause is remanded to
the Claims Commission for such further proceedings as may be required, if any, consistent with this
Opinion and for collection of the costs below. The costs on appeal are assessed against the
Appellant, Lloyd E. Williams.




                                                     ___________________________________
                                                     D. MICHAEL SWINEY, JUDGE




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