Abraham Best v. City of Memphis ( 2021 )

09/15/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 2, 2021
ABRAHAM BEST v. CITY OF MEMPHIS
Appeal from the Circuit Court for Shelby County
No. CT-4770-19 Mary L. Wagner, Judge
No. W2021-00020-COA-R3-CV
Former firefighter who alleged miscalculation of his Line of Duty disability benefits
brought an action for breach of contract, negligence, and negligent infliction of emotional
distress against the City of Memphis. In this appeal from the trial court’s dismissal of the
complaint pursuant to Tennessee Rule of Civil Procedure 12.02(1) we affirm the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which ANDY D. BENNETT,
J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Terrell L. Tooten, Cordova, Tennessee, for the appellant, Abraham Best.
Chandley Hayes-Crawford and Dennis P. Hawkins, Memphis, Tennessee, for the
appellee, City of Memphis.
OPINION
I. BACKGROUND
The following facts are undisputed. On September 14, 2016, Abraham Best
(“Plaintiff”), a firefighter employed by the City of Memphis (“City”), injured his right
ankle and foot while at work. Plaintiff filed an application for Line of Duty disability
(“LOD”) benefits. The LOD benefits were initially denied by the Board of
Administration City of Memphis Retirement System (“Pension Board”). Plaintiff timely
appealed the decision. The matter was referred to an Administrative Law Judge for a
hearing. The administrative record is not included in the appellate record, save the ALJ’s
order entered May 9, 2019, which indicates that “[a] hearing consistent with the contested
case procedures of the Uniform Administrative Procedures Act, as adopted by the State
of Tennessee, was held in this matter on February 20, 2019 after which both [Plaintiff]
and [the City] submitted post-hearing briefs . . . and closing argument was heard on April
25, 2019.” The ALJ found that Plaintiff was “entitled to LOD benefits” from the City.
On October 29, 2019, Plaintiff filed in the Circuit Court (“trial court”) a complaint
alleging that the City delayed the payment of his LOD benefits, miscalculated the date
from which back pay should begin,1 and “improperly mov[ed] [his] official retirement
date.” Plaintiff asserted claims for breach of contract, negligence, and negligent
infliction of emotional distress. Plaintiff alleged that prior to filing a complaint in the
trial court, he communicated with “the Benefits Department,” and “the Payroll
Department” in an effort to resolve his grievance. Plaintiff further alleged that certain
individuals advised that the “Pension Department was responsible.” By email dated
August 28, 2019, Plaintiff allegedly “emailed [the City], notifying the Payroll
Department, the Benefits Department, and the chief of the fire department.” In the email,
Plaintiff allegedly “informed [the City] that he would have to take legal action to remedy
the situation if necessary.”
On December 4, 2019, the City answered2 the complaint and moved to dismiss the
complaint for lack of subject matter jurisdiction under Tennessee Rule of Civil Procedure
12.02(1). In its motion, the City stated that the Pension Board acted on the ALJ’s May 9,
2019 order “on June 27, 2019 and issued the first payment to Plaintiff on July 31, 2019
covering the July 16–31, 2019 pay period.” The City argued that because Plaintiff’s
grievance was based solely on the Pension Board’s actions and because the Pension
Board is an administrative agency of the City, Plaintiff’s filing seeking review of the
Pension Board’s actions should have been filed in Chancery Court within sixty days of
the ALJ’s order. The City contended that dismissal based upon lack of subject matter
jurisdiction was required because Plaintiff’s complaint was untimely filed in the wrong
court. In a brief response, Plaintiff argued that because his “Complaint is based on the
conduct that occurred when [the City] violated the Pension Board decision,” it was
properly filed in the trial court instead of in Chancery Court.
The trial court heard the City’s motion to dismiss on November 24, 2020. The
record does not contain a transcript of this hearing, but from the trial court’s final order
entered December 10, 2020, it appears that the trial court sua sponte dismissed Plaintiff’s
1
The complaint alleges that the City “gave Plaintiff back pay, starting from the date of July 21,
2018.” However, Plaintiff averred that the back pay included in the LOD benefits award should have
been calculated from May 12, 2018.
2
In its answer, the City admitted that Plaintiff’s back pay was calculated from July 21, 2018.
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claims for breach of contract and negligent infliction of emotional distress for failure to
state a claim upon which relief can be granted, pursuant to Tennessee Rule of Civil
Procedure 12.02(6):
The City of Memphis Code of Ordinances states explicitly at § 4-4-5 that
no contract is created between the City and any employee or retiree by
virtue of participation in the retirement system. The breach of contract
claim is dismissed for failure to state a claim upon which relief can be
granted.
The Governmental Tort Liability Act at § 29-20-205(2) states that the
[City’s] immunity from suit is not removed in cases of infliction of mental
anguish. During argument, the Plaintiff conceded and agreed with this
point. The negligent infliction of emotional distress claim is dismissed for
failure to state a claim upon which relief can be granted because the [City]
is immune from suit and immunity cannot be removed.
The trial court also found that it “lack[ed] subject matter jurisdiction over the
cause.” The trial court reasoned as follows:
The gravamen of the Complaint before this Court is a dispute of the
amount, time and manner of payment of Plaintiff’s pension plan benefits.
The Code of Ordinances at § 4-8-7(c) states that the Pension Board shall
determine the amount, manner and time of payment of plan benefits. Based
upon the City Ordinance, Plaintiff must bring these disputes to the Pension
Board. Thereafter, any challenge to the Board’s action must be brought in
the Shelby County Chancery Court under the Uniform Administrative
Procedures Act (“UAPA”) found in the Tennessee Code Annotated. Such
actions must be brought within sixty (60) days. T.C.A. §§ 4-5-
322(b)(1)(A)(i) and (iv).
The Court does not find whether or not Plaintiff’s dispute has yet to be
ruled upon by the Pension Board. If it has not, then exclusive jurisdiction
lies with the Pension Board. If the Pension Board has ruled, then exclusive
jurisdiction is with the Shelby County Chancery Court. This Court,
however, cannot transfer this matter to the Chancery Court because either
(1) it has not yet been considered by the Pension Board, or (2) if the
Pension Board’s decision does address these disputes, then Plaintiff did not
bring his action within sixty (60) days. Because this Court does not have
subject matter jurisdiction, this action must be dismissed.
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Plaintiff appealed.
II. ISSUES
Plaintiff raises one issue: “Whether the trial court erred in granting [the City’s]
motion to dismiss.”
III. STANDARD OF REVIEW
We review de novo a trial court’s dismissal of an action for lack of subject matter
jurisdiction. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712–13 (Tenn. 2012); see also
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (“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.”).
IV. DISCUSSION
We begin by outlining the legal authority applicable to this appeal. “[S]ubject
matter jurisdiction involves a court’s lawful authority to adjudicate a controversy brought
before it.” Northland Ins. Co., 33 S.W.3d at 729. A court obtains subject matter
jurisdiction from either a statutory or constitutional provision. See Staats v. McKinnon,
206 S.W.3d 532, 542 (Tenn. Ct. App. 2006). “The existence of subject matter
jurisdiction depends on the nature of the cause of action and the relief sought.” Id. (citing
Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)). Therefore, when a court’s subject
matter jurisdiction is challenged, the first step is to “ascertain the nature or gravamen of
the case,” and then to “determine whether the Tennessee Constitution, the General
Assembly, or the common law have conferred on [the court] the power to adjudicate
cases of that sort.” Staats, 206 S.W.3d at 542.
A party may assert either a facial challenge or a factual challenge to the court’s
subject matter jurisdiction. Redwing v. Cath. Bishop for Diocese of Memphis, 363
S.W.3d 436, 445 (Tenn. 2012); see also Staats, 206 S.W.3d at 542. “A facial challenge
attacks the complaint itself and asserts that the complaint, considered as a whole, fails to
allege facts showing that the court has subject matter jurisdiction to hear the case.”
Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 S.W.3d 146, 160 (Tenn.
2017) (citing Redwing, 363 S.W.3d at 445–46). In contrast, “a factual challenge admits
that the alleged facts, if true, would establish subject matter jurisdiction, but it attacks the
sufficiency of the evidence to prove the alleged jurisdictional facts.” Id. (citing Redwing,
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363 S.W.3d at 446). “Regardless of the manner used, the plaintiff bears the burden of
establishing that the court has subject matter jurisdiction over the case.” Church of God
in Christ, Inc., 531 S.W.3d at 161 (citing Staats, 206 S.W.3d at 543). “The lack of
subject matter jurisdiction is so fundamental that it requires dismissal whenever it is
raised and demonstrated.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480
(Tenn. Ct. App. 1999). An order or judgment entered by a court lacking subject matter
jurisdiction is void. First Am. Tr. Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135,
141 (Tenn. Ct. App. 2001).
Title 4 of the Code of Ordinances, City of Memphis, Tennessee, entitled “Pension
and Retirement System,” provides, in relevant part, as follows:
There is created and established a board of administration which, under the
provisions of this title and the direction of the mayor, shall administer the
plan and the trust fund created by this title.
Code of Ordinances, City of Memphis, Tennessee at § 4-8-1.
The board shall supervise the administration and enforcement of this title
according to the terms and provisions of this title and shall have all powers
necessary to accomplish these purposes, including, without limitation and
in addition to any other powers described in this chapter the right, power,
authority and duty:
A. To construe all terms, provisions, conditions and limitations of
the plan (in all cases, the construction necessary for the plan to
qualify under the applicable provisions of the Code shall control);
B. To determine all questions relating to eligibility;
C. To determine the amount, manner and time of payment of any
plan benefits and to prescribe procedures to be followed by
distributees in obtaining benefits;
...
E. To make a determination as to the right of any person to a
benefit under this title;
Id. at § 4-8-7.
Tennessee Code Annotated section 27-9-114 establishes:
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(b)(1) Judicial review of decisions by civil service boards of a county or
municipality which affects the employment status of a county or city civil
service employee shall be in conformity with the judicial review standards
under the Uniform Administrative Procedures Act, § 4-5-322.
(2) Petitions for judicial review of decisions by a city or county civil
service board affecting the employment status of a civil service employee
shall be filed in the chancery court of the county wherein the local civil
service board is located.
Tenn. Code Ann. § 27-9-114(b)(1) and (2).
Finally, Tennessee Code Annotated section 4-5-322 provides:
(a)(1) A person who is aggrieved by a final decision in a contested case is
entitled to judicial review under this chapter, which shall be the only
available method of judicial review. A preliminary, procedural or
intermediate agency action or ruling is immediately reviewable if review of
the final agency decision would not provide an adequate remedy.
Tenn. Code Ann. § 4-5-322(a)(1). Judicial review of an administrative agency’s action is
within the exclusive jurisdiction of the Chancery Court. Tenn. Code Ann. § 4-5-
322(b)(1)(a)(i) (“Proceedings for review are instituted by filing a petition for review in
chancery court”). When “a petition for judicial review is submitted within the sixty-day
period but is filed with an inappropriate court, the case shall be transferred to the
appropriate court.” Tenn. Code Ann. § 4-5-322(b)(2).
Plaintiff’s brief does not acknowledge, cite to, or develop an argument based on
the foregoing applicable legal authority. Instead, without citation to authority to support
his position, Plaintiff asserts that he “wants the [ALJ’s] Order followed” and that he
“properly filed this matter in Circuit Court, as the Circuit Court is the only court that
would have jurisdiction to hear the matter.” Plaintiff’s argument on the dispositive issue
of the trial court’s subject matter jurisdiction is lacking. “Courts have routinely held that
the failure to make appropriate references to the record and to cite relevant authority in
the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the
issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000); see also Hawkins v. Hart,
86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (“[F]or an issue to be considered on appeal, a
party must, in his brief, develop the theories or contain authority to support the averred
position . . . .”). Although the issue that Plaintiff raises on appeal is subject to waiver, we
will briefly address it.
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As the parties recognize, the board of administration referenced in the above
provisions of the Code of Ordinances, City of Memphis, Tennessee, is commonly
referred to as the Pension Board. Although on its face Plaintiff’s complaint appears to
sound in tort, the allegations solely concern the Pension Board’s calculation and manner
of payment of his LOD benefits following the ALJ’s order to award benefits. Similarly,
on appeal, Plaintiff states that “the basis of [his] lawsuit” is the City’s alleged failure to
provide “all amounts due to him” pursuant to the ALJ’s order awarding LOD benefits.
Plaintiff argues that the Pension Board failed to follow the ALJ’s order. Thus, we affirm
the trial court’s finding that the gravamen of the Complaint is a dispute of the amount,
time, and manner of payment of Plaintiff’s pension plan benefits. Because the Pension
Board is tasked with “determin[ing] the amount, manner and time of payment of any plan
benefits,” Plaintiff was required to formally present the disputes alleged in the complaint
to the Pension Board in the first instance. Code of Ordinances, City of Memphis,
Tennessee at § 4-8-7. Even a generous reading of the complaint shows that Plaintiff did
not do so, and he does not argue otherwise on appeal. Instead, after communicating with
certain individuals in the Payroll Department and Benefits Department, and after
emailing the Chief of the Fire Department, Plaintiff filed a complaint in the trial court.
The Uniform Administrative Procedures Act’s judicial review provision,
Tennessee Code Annotated section 4-5-322, governs judicial review of the Pension
Board’s actions. See Murrell v. Bd. of Admin. City of Memphis Pension & Ret. Sys., No.
W2020-00187-COA-R3-CV, 2021 WL 1233500, at *4 (Tenn. Ct. App. Mar. 31, 2021)
(concluding that “[t]he UAPA is the governing standard” and noting that “the Pension
Board was required to provide a UAPA-compliant contested case hearing” where police
officers alleged that the Pension Board erroneously calculated the amount of their
pension benefits); Marino v. Bd. of Admin. City of Memphis Ret. Sys., No. W2015-00283-
COA-R9-CV, 2015 WL 7169796 (Tenn. Ct. App. Nov. 16, 2015) (holding that the
Pension Board is not exempt from the contested case procedures of the UAPA where
Pension Board denied firefighter’s LOD benefits). In both Murrell and Marino, the
aggrieved parties initiated judicial review of the Pension Board’s action through a filing
in the Chancery Court, where exclusive jurisdiction for such matters lies. Murrell, 2021
WL 1233500, at *1; Marino, 2015 WL 7169796, at *1; Tenn. Code Ann. § 4-5-
322(b)(1)(a)(i). This is what Plaintiff should have done instead of filing in the trial court,
assuming arguendo that Plaintiff was “aggrieved by a final decision in a contested case”
or that he intended to obtain judicial review of a “preliminary, procedural or intermediate
agency action or ruling.” See Tenn. Code Ann. § 4-5-322(a)(1).
We will not address whether the action could have been transferred to the
Chancery Court because Plaintiff does not raise or argue the issue on appeal. See Hodge
v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Appellate review is generally limited to
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the issues that have been presented for review.”); Murray v. Miracle, 457 S.W.3d 399,
403 (Tenn. Ct. App. 2014) (“We will not undertake to search the record and then revise
Plaintiffs’ brief in its entirety so as to create issues of claimed errors by the Trial Court
when the Plaintiffs raise no such specific claimed errors because to do so would have this
Court serve as Plaintiffs’ attorney.”).
We hold that the trial court lacked the subject matter jurisdiction to adjudicate this
case. Accordingly, the trial court’s dismissal of Plaintiff’s complaint pursuant to
Tennessee Rule of Civil Procedure 12.02(1) is affirmed. Because the trial court lacked
the threshold subject matter jurisdiction to adjudicate the action at all, we need not review
the trial court’s dismissal, pursuant to Tennessee Rule of Civil Procedure 12.02(6), of the
breach of contract and negligent infliction of emotional distress claims.
V. CONCLUSION
We affirm the judgment of the trial court. The case is remanded for such further
proceedings as may be necessary and consistent with this opinion. Costs of the appeal
are taxed to the appellant, Abraham Best, for which execution may issue if necessary.
_________________________________
JOHN W. McCLARTY, JUDGE
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