R.C. EX REL. ADAM ELROD
STATE OF TENNESSEE
Session April 18, 2018
from the Tennessee Claims Commission No. 20101747 William A.
action involves a claim filed against the State of Tennessee
with the Tennessee Claims Commission. The Commissioner
ultimately dismissed the claim with prejudice for failure to
advance the case to disposition. The claimant filed a motion
for relief from the judgment pursuant to Rule 60.02 of the
Tennessee Rules of Civil Procedure. The claimant then filed a
notice of appeal before the Commissioner ruled upon the
motion. We dismiss the appeal for lack of subject matter
jurisdiction and remand for further proceedings consistent
with this opinion.
R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case
Gregory E. Bennett, Seymour, Tennessee, and Mary L. Ward,
Knoxville, Tennessee, for the appellant, R.C. ex rel. Adam
Elrod, as next friend.
Herbert H. Slatery, III, Attorney General and Reporter,
Andrée S. Blumstein, Solicitor General, and Stephanie
A. Bergmeyer, Assistant Attorney General, for the appellee,
State of Tennessee.
W. McClarty, J., delivered the opinion of the Court, in which
D. Michael Swiney, C.J., and Charles D. Susano, Jr., J.,
W. McCLARTY, JUDGE.
Elrod ("Claimant"), as next friend for R.C., a
minor child, filed this action against the State of Tennessee
("the State") on June 1, 2010. The claim was
transferred to the Tennessee Claims Commission ("the
Commission") in August 2010. The Commission entered a
notice of receipt of claim, which stated:
The claimants or the claimants' attorney must take the
initiative in the prosecution of this claim. Please take
notice of Tennessee Code Annotated section 9-8-402(b), which
provides in part, "Absent prior written consent of the
Commissioner, it is mandatory that any claim filed with the
claims commission upon which no action is taken by the
claimant to advance the case to disposition within any one
(1) year period of time be dismissed with prejudice."
State denied liability. A scheduling order was entered in May
2011, and amended orders were entered on October 12, 2011,
and October 15, 2012. An agreed protective order was also
entered in October 2012.
point, the Parties mutually agreed to allow Claimant to
pursue a related action in circuit court in 2011 or 2012.
Claimant asserts that the agreement extended until the
resolution of the circuit court case, while the State claims
that the agreement was for an unspecified time. Nevertheless,
Claimant alleges that he indicated his intent to pursue the
case on May 8, 2013. Claimant asserts that he received no
response from the State, while the State argues that it
advised Claimant to respond to discovery. On September 4,
2015, Claimant advised the Commissioner's office that an
agreement had been reached to "leave [the] claim idle
pending the outcome of the civil suit."
circuit court case concluded on May 10, 2016. The Parties
disagree as to the extent of their conversations concerning
the advancement of the claim following May 10. On May 26,
2017, the State moved to dismiss, citing Section 9-8-402(b).
The Claims Commissioner dismissed the claim on July 3,
finding that dismissal was warranted because written consent
had not been obtained to hold the claim in abeyance.
filed a Rule 60.02 motion for relief on July 14, and a notice
of appeal on August 3. On September 11, the Claims Commission
held that it was without jurisdiction to consider the Rule
60.02 motion ...