DAVID R. SMITH
THE TENNESSEE NATIONAL GUARD
April 17, 2015 Session
Appeal from the Circuit Court for Davidson County No. 11C3080 Thomas W. Brothers, Judge
Phillip L. Davidson, Brentwood, Tennessee, for the appellant, David R. Smith.
Herbert H. Slatery III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor General; and Michael Markham, Senior Counsel, for the appellee, The Tennessee National Guard.
Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
FRANK G. CLEMENT, JR., JUDGE
In his second appeal in this case, David R. Smith ("Plaintiff") contends that the trial court erred when it failed to reinstate his lawsuit against the Tennessee National Guard ("Defendant") based on a statute enacted after his first appeal. The relevant facts are recited in Smith v. Tennessee Nat. Guard, 387 S.W.3d 570, 572 (Tenn. Ct. App. 2012) ("Smith I"):
Plaintiff was a full-time employee of the Tennessee National Guard until 2002 when he commenced active duty service in the Active Guard and Reserve. Near the completion of his active duty service in the Active Guard and Reserve, Plaintiff asked the Tennessee National Guard to rehire him pursuant to the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA). When the Tennessee National Guard refused, Plaintiff filed this action alleging it violated USERRA. The Tennessee National Guard responded to the complaint by filing a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims. The trial court granted the motion to dismiss based on the doctrine of sovereign immunity.
In Smith I, this court affirmed the trial court's order dismissing Plaintiff's claim as barred by sovereign immunity, noting that only the Tennessee General Assembly could authorize suits against the state of Tennessee. Id. at 576; see Williams v. State, 139 S.W.3d 308, 311 (Tenn. Ct. App. 2004) (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)). After this court issued its opinion in Smith I, the General Assembly enacted Tenn. Code Ann. § 29-20-208, which states:
Immunity from suit of any governmental entity, or any agency, authority, board, branch, commission, division, entity, subdivision, or department of state government, or any autonomous state agency, authority, board, commission, council, department, office, or institution of higher education, is removed for the purpose of claims against and relief from a governmental entity under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334.
The act provided that it was to take effect on July 1, 2014 and "apply to all claims against a governmental entity under [USERRA] accruing on or after such date." 2014 Tenn. Pub. Acts 574, § 2.
On July 2, 2014, Plaintiff filed a motion under Rule 60.02 of the Tennessee Rules of Civil Procedure seeking to have the trial court reinstate his complaint based on Tenn. Code Ann. § 29-20-208. After a hearing, the trial court denied Plaintiff's motion, finding that Plaintiff's claim was inappropriate for relief under Rule 60 and that it remained barred by sovereign immunity because his cause of action accrued before July 1, 2014.
In September 2014, Plaintiff filed a motion under Tenn. R. Civ. P. 59 seeking to alter or amend the trial court's order denying his Rule 60 motion. Plaintiff argued that the trial court should have considered the legislative history of Tenn. Code Ann. § 29-20-208, which references Plaintiff by name and, according to Plaintiff, indicates that the law was enacted to benefit him and other similarly-situated veterans. Plaintiff also argued that his cause of action did not accrue until July 1, 2014 because no court in Tennessee had subject matter jurisdiction over it before that date.
The trial court denied this motion as well, finding that there was no need to consider legislative history because Tenn. Code Ann. § 29-20-208 was unambiguous. The trial court also reiterated its holding that Plaintiff's claim was ...