John Jaco v. Department of Health Bureau of Medicaid

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
_____________________________________________________________________________
JOHN JACO, Davidson Chancery No. 95-192-III
C.A. No. 01-A-01-9507-CH-00285
Petitioner/Appellant
Hon. Robert S. Brandt, Chancellor
v.
DEPARTMENT OF HEALTH,
BUREAU OF MEDICAID
FILED
December 10,
Respondent/Appellee 2001
Cecil Crowson, Jr.
Appellate Court Clerk
THOMAS F. BLOOM, Nashville, Attorney for Petitioner/Appellant
CHARLES W. BURSON, Attorney General & Reporter, and MICHELLE K. HOHNKE,
Assistant Attorney General, Nashville
Attorneys for Respondent/Appellee
AFFIRMED
Opinion Filed:
____________________________________________________________________________
TOMLIN, Sr. J.
This appeal involved judicial review of an administrative decision regarding
the denial of petitioner’s application for benefits for care at a nursing home
facility. The chancellor granted the motion to dismiss of the Department of
Health, Bureau of Medicaid (?respondents” or by name) on the ground that the
trial court did not have subject matter jurisdiction due to the failure of petitioner1
to cause a summons to be properly issued and served on the Department within
the sixty (60) day time limit specified in T.C.A. § 4-5-322(b)(1). The sole issue
presented for review by this court is whether the chancellor erred in dismissing
petitioner’s suit for judicial review for lack of subject matter jurisdiction. We find
no error and affirm.
1
Mr. Jaco incorrectly identified the parties in his petition for review in
the chancery court by naming himself as ?respondent/appellant”
and the Department of Health, Bureau of Medicaid as
?petitioner/appellee.” Inasmuch as Jaco commenced the action
in chancery court, he is actually the petitioner. The Department of
Health, Bureau of Medicaid should be identified as the respondent.
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Petitioner applied for a preadmission evaluation (PAE) so as to make him
eligible for Medicaid benefits for care at an Intermediate Care Facility (ICF). See
T.C.A. § 71-5-107(a)(15) (1995). This is required because the Department of Health
will not reimburse an ICF unless the Department has approved a PAE for this
individual. Tenn. Comp. R. & Regs. r. 1200-12-1-.10(2) (1983). On November 21,
1994, the Department issued a final order denying petitioner’s PAE application.
The Uniform Administrative Procedures Act (UAPA) provides judicial review
for an individual who is aggrieved by a final decision of a state agency in a
contested case. T.C.A. § 4-5-322(b)(1) (1991). Judicial review may be obtained
as follows:
(b)(1) Proceedings for review are instituted by filing a petition for
review in the chancery court of Davidson County, unless another
court is specified by statute. Such petition shall be filed within sixty
(60) days after the entry of the agency’s final order thereon.
(2) . . . Copies of the petition shall be served upon the agency and
all parties of record, including the attorney general and reporter, in
accordance with the provisions of the Tennessee Rules of Civil
Procedure pertaining to service of process.
T.C.A. § 4-5-322(b)(1) & (2) (1991).
On January 18, 1995, Jaco filed a petition in the Chancery Court of
Davidson County seeking review of the Department’s final order. At that time he
mailed a copy of the petition to the office of the state Attorney General and to
the Department of Health. However, he failed to file and cause to be issued a
summons. Petitioner did not file a summons until March 24, 1995. In granting the
Department’s motion to dismiss, the chancellor held that the petitioner’s late filing
and issuance of the summons was a jurisdictional defect as a matter of law.
It is undisputed that Jaco filed his petition for review within the 60 day
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period as set out in T.C.A. § 4-5-322(b)(1). It is also undisputed that he failed to file
and caused to be issued a summons until well after the 60 day period had
expired.
THE EFFECT OF SERVICE OF PROCESS
Although not directly relevant, by way of background we first take a look
at Rule 3 of the Tennessee Rules of Civil Procedure as it existed prior to this
litigation. It read as follows:
All civil actions are commenced by filing a complaint with the court.
An action is commenced within the meaning of any statute of
limitations upon such filing of a complaint, whether process be
returned served or unserved . . . .
T.R.C.P. 4.01 called for the clerk of the court upon the filing of a complaint to
?forthwith” issue the required summons and cause it along with the complaint to
be served upon the person sued.
Rule 3 was amended by the general assembly, effective July 1, 1992.
Amended Rule 3, directly relevant to the litigation before us, reads in pertinent
part as follows:
All civil actions are commenced by filing a complaint and summons
with the clerk of the court. An action is commenced within the
meaning of any statute of limitations upon such filing of a complaint
and summons, whether process be issued or not issued and whether
process be returned and served or unserved. . . .
T.R.C.P. 3 (emphasis added). The Advisory Commission Comment to the 1992
amendment states that ?[t]he burden of preparing the summons is placed on the
lawyer, who should take steps to ensure that it is issued and placed in the hands
of a deputy sheriff or private process server immediately after filing.” (emphasis
3
added). Although the facts are somewhat dissimilar, in Southwest Motor Freight,
Inc. v. Department of Commerce & Ins., No. 01-A-01-9209-CH-00371, 1993 WL
82423 (Tenn. App. Mar. 24, 1993) this court noted the different effect to be had as
a result of the 1992 amendment to Rule 3. Although the litigation in Southwest
Motor Freight began during the time that the former Rule 3 was in effect, that
court noted that ?[u]nder the amended Rule 3 the filing of both a complaint and
a summons is required to commence a case for purposes of the 60-day limitation
statute.” Id. at *3.
In the recent case of HRA, Inc. v. Tennessee Dep’t of Commerce & Ins., No.
01-A-01-9503-CH-00087, 1995 WL 458983 (Tenn. App. Aug. 4, 1995), which we
deem relevant and to a large degree controlling, petitioner properly filed and
thereafter served copies of a petition for review by mail within 60 days of the entry
of the final order of the agency. There was nothing in the record to indicate that
process was filed and served on any party. Id. at *2. HRA contended that
although it failed to name a proper party in its original petition for review, it
nonetheless put the respondent on notice by mailing a copy of the petition to the
attorney for the omitted party. Id.
In the case before us, petitioner seeks to have this court excuse his failure
to timely file process (summons) against the Department on the grounds that the
Department received notice of the filing of the petition for review by virtue of a
copy of the petition being mailed to its counsel—the Attorney General—and thus
the Department would not be prejudiced.
In HRA, the middle section of this court noted that ?[t]he 60 day limit is not
procedural but jurisdictional. The Courts have no more authority to extend the 60
day time for petitions for review than they would have to extend the 30 day time
for notice of appeal.” HRA, Inc. at *5. For the same reason we reject the
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argument of petitioner. Although Jaco’s petition for review was timely filed
pursuant to T.C.A. § 4-5-322, his failure to have a summons filed and issued within
the 60 day ?statute of limitations period” amounted to a jurisdictional defect.
Accordingly, the decree of the chancellor is affirmed in all respects. The
cost in this cause on appeal taxed to petitioner, for which execution may issue if
necessary.
_________________________________________
TOMLIN, SR. J.
________________________________________
(CONCURS)
________________________________________
(CONCURS)
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