Anthony D. Herron, Jr. v. State of Tennessee

04/07/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 2, 2021
ANTHONY D. HERRON, JR. v. STATE OF TENNESSEE
Appeal from the Tennessee Claims Commission
No. T20182106 James A. Hamilton, III, Commissioner
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No. W2019-00595-COA-R3-CV
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This case involves a breach of contract claim brought against the Tennessee Department
of Human Services pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(L). The
defendant moved to dismiss for lack of subject matter jurisdiction, claiming the parties
never entered into a written agreement. The Tennessee Claims Commission granted the
motion and dismissed the complaint for lack of subject matter jurisdiction. We affirm the
Commission’s decision and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
Affirmed and Remanded.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.
Anthony D. Herron, Jr., Memphis, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; E. Ashley Carter; and Shanell L. Tyler, for the appellee, State of Tennessee.
OPINION
I. FACTS & PROCEDURAL HISTORY
This case arises from Anthony D. Herron, Jr.’s (“Claimant’s”) interactions with the
Tennessee Department of Human Services (“DHS”).1 In November 2014, Claimant
1
This opinion marks Claimant’s fourth appeal to this Court since he applied for vocational
rehabilitation benefits with DHS. See Herron v. State, No. W2020-00776-COA-T10B-CV, 2020 WL
3481696 (Tenn. Ct. App. June 25, 2020); Herron v. Tenn. Dep’t of Human Servs., No. W2017-00067-COA-
applied for vocational rehabilitation benefits with the Division of Rehabilitation Services,
a branch of DHS.2 Claimant and DHS established an Individualized Plan for Employment
that was meant to help Claimant gain vocational skills. Under the plan, the parties arranged
for Claimant to take classes that would help enable him to become a flight instructor.
However, the flight school that was administering the classes closed unexpectedly. As a
result, Claimant was unable to complete his vocational education. After the flight school
closed, DHS determined that other self-employment plans submitted by Claimant were not
feasible.
Thereafter, Claimant alleges that DHS agreed to administer benefit payments. He
claims that he and DHS entered into an agreement on October 4, 2017, (“the Agreement”).
Under the Agreement, Claimant asserts that DHS agreed to administer to Claimant five
benefit payments of $18,595.22, totaling $92,976.10. Claimant also alleges that DHS
agreed to pay an additional $200,000 to Claimant if DHS failed to make a timely payment
or failed to distribute a payment. He asserts that Anthony McClyde (a Field Supervisor for
DHS) signed the Agreement on behalf of DHS. Claimant maintains that after the parties
executed the Agreement, he retained a copy and Mr. McClyde retained a copy of the
Agreement.
Claimant asserts that following the supposed execution of the Agreement, DHS
refused to administer any benefit payments or the purported $200,000 late fee. As a result,
on August 6, 2018, Claimant, acting pro se, filed a complaint for damages with the
Tennessee Claims Commission (“the Commission”) pursuant to Tennessee Code
Annotated section 9-8-307, et seq. In his complaint, Claimant alleged that because of
DHS’s purported breach of contract, he suffered $292,976.10 in damages. In his
complaint, Claimant specifically stated that Mr. McClyde and DHS retained a copy of the
Agreement. However, he did not attach a copy of the Agreement as an exhibit to his
complaint.
Throughout this case, DHS has maintained that no representative of DHS, including
Mr. McClyde, entered into a written agreement that stated DHS agreed to make benefit
payments to Claimant. Based on its position that it never executed the Agreement at issue,
on September 4, 2018, DHS moved to dismiss Claimant’s complaint pursuant to Tennessee
Rule of Civil Procedure 12.02(1). DHS claimed that the Commission lacked subject matter
jurisdiction to hear the case because there is no written contract between DHS and
Claimant. In support of its motion to dismiss, DHS included a memorandum of law and
an affidavit of Mr. McClyde.
R3-CV, 2017 WL 6467280 (Tenn. Ct. App. Dec. 18, 2017); Herron v. Tenn. Dep’t of Human Servs., No.
W2016-01416-COA-R3-CV, 2017 WL 438626 (Tenn. Ct. App. Feb. 1, 2017).
2
The Division of Rehabilitation Services administers a vocational rehabilitation program that seeks
to provide training services to eligible individuals.
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On October 1, 2018, Claimant responded to DHS’s motion to dismiss. Claimant
relied on his original affidavit that he included with his complaint. Claimant also argued
that, although he did not include a copy of the Agreement with his complaint, he complied
with Rule 10.03(2) of the Tennessee Rules of Civil Procedure by stating in his complaint
that a written copy of the Agreement was in DHS’s possession.
After Claimant filed his response to the motion to dismiss, DHS moved to compel
Claimant to provide a written copy of the Agreement. Previously, DHS made discovery
requests for Claimant to provide copies of the Agreement. Despite DHS’s requests,
Claimant did not provide a copy of the Agreement.
On January 2, 2019, the Commission entered an order of dismissal, granting DHS’s
motion to dismiss. The Commission found that as of the date of the court’s order, Claimant
had not produced a copy of the Agreement. It further found that there was insufficient
proof of a written contract between Claimant and DHS and, as a result, determined that it
lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-
307(a)(1)(L). In response to Claimant’s assertion that he complied with Rule 10.03, the
Commission stated that Claimant’s allegations were merely an attempt to comply with Rule
10.03(2). The Commission relied on the affidavit of Mr. McClyde that stated the parties
never executed a written agreement for benefit payments. Accordingly, the Commission
granted DHS’s motion to dismiss and dismissed Claimant’s complaint.
Following the Commission granting DHS’s motion to dismiss, Claimant moved for
an en banc hearing. DHS replied by again asserting that the Commission lacked subject
matter jurisdiction. Claimant filed a response to DHS’s reply. Claimant’s response
included, for the first time, an alleged copy of the Agreement.
The Agreement provided by Claimant was a one-page document titled “Confidential
Agreement.” The Agreement contained terms that described benefit payments to Claimant.
The Agreement purports to show that it was executed by Claimant and Mr. McClyde on
October 4, 2017. Below the line for Mr. McClyde’s alleged signature, it states that Mr.
McClyde signed as a “Counselor” for the Division of Rehabilitation Services.
DHS filed a memorandum in response to Claimant providing an alleged copy of the
Agreement. DHS alleged that the Agreement was a forged document and was not actually
signed by Mr. McClyde. It asserted that Claimant digitally copied Mr. McClyde’s
signature from a previous filing. In support of its memorandum, DHS included a new
affidavit by Mr. McClyde. Mr. McClyde denied ever signing a document titled
“Confidential Agreement.” Similarly, he asserted that the purported agreement provided
by Claimant was a forged document, that he has never signed an agreement as a
“Counselor,” and that no “client” of DHS has ever received services through a document
entitled “Confidential Agreement.”
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The Commission determined that Claimant’s motion did not meet the necessary
criteria for an en banc review and denied his motion.
Claimant timely appealed.
II. ISSUES PRESENTED
Claimant raises one issue on appeal, which we have slightly reworded: whether the
Commission erred in holding that it did not have subject matter jurisdiction to hear
Claimant’s alleged breach of contract claim.
For the reasons stated herein, we affirm the decision of the Commission and remand.
III. DISCUSSION
At the outset of our discussion, we note the treatment that this Court gives to a pro
se litigant such as Claimant. As we have previously stated:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. The courts should take into account that many
pro se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see also
Kondaur Capital Corp. v. Finley, No. W2019-00143-COA-R3-CV, 2019 WL 5067195, at
*2 (Tenn. Ct. App. Oct. 9, 2019); Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 551
(Tenn. Ct. App. 2015).
Turning our attention to the merits of this appeal, we must determine whether the
Commission had the authority to adjudicate Claimant’s breach of contract claim against
DHS. “The sovereign State of Tennessee is immune from lawsuits except as it consents to
be sued.” Smith v. Tenn. Nat’l Guard, 551 S.W.3d 702, 708 (Tenn. 2018) (quotation marks
omitted). “[T]he State includes the departments, commissions, boards, institutions and
municipalities of the State,” including DHS. Id. (quotation marks omitted); see also Payne
v. State, No. W2011-00761-COA-R3-CV, 2012 WL 6115665, at *3 (Tenn. Ct. App. Dec.
10, 2012). In order for the Legislature to waive sovereign immunity, it must enact a statute
that “‘clearly and unmistakably’ express[es] [its] intent to permit claims against the State.”
Smith, 551 S.W.3d at 709 (quoting Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19
(Tenn. 2007)).
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In 1984, the Legislature “enacted a comprehensive procedure for the filing,
prosecution, and disposition of monetary claims against the State. As a part of this statutory
scheme, the Tennessee Claims Commission, consisting of one commissioner from each
grand division of the State, was created to hear and determine claims against the State.”
Mullins v. State, 320 S.W.3d 273, 278-79 (Tenn. 2010). The Legislature empowered the
Commission “with exclusive jurisdiction to adjudicate certain specified claims for
monetary relief brought against the State.” Harris v. Tenn. Rehab. Initiative in Corr., No.
M2013-01858-COA-R3-CV, 2014 WL 1887302, at *1 (Tenn. Ct. App. May 8, 2014)
(citing Tenn. Code Ann. §§ 9-8-301 and -307; Stewart v. State, 33 S.W.3d 785, 791 (Tenn.
2000)). Tennessee Code Annotated section 9-8-307(a) specifies the causes of action that
may be brought against the State and adjudicated by the Commission. Ku v. State, 104
S.W.3d 870, 875 (Tenn. Ct. App. 2002). If a claim falls outside of the scope of section 9-
8-307(a), “the Claims Commission lacks subject matter jurisdiction and has no authority
to hear [the] claim[].” Mullins, 320 S.W.3d at 279. Whether the Commission has
jurisdiction to hear a claim under section 9-8-307(a) is a question of law that is reviewed
de novo with no presumption of correctness. See id. at 278.
The portion of subsection 9-8-307(a) that is relevant to this case states that the
Commission has exclusive jurisdiction to hear “[a]ctions for breach of a written contract
between the claimant and the [S]tate which was executed by one (1) or more state officers.”
Tenn. Code Ann. § 9-8-307(a)(1)(L).
After Claimant filed his complaint that alleged breach of contract, DHS moved to
dismiss the complaint. DHS filed its motion pursuant to Tennessee Rule of Civil Procedure
12.02(1), arguing that the Commission lacked subject matter jurisdiction to hear the case.3
The Commission agreed and granted DHS’s motion to dismiss.
“A motion to dismiss for lack of subject matter jurisdiction falls within the purview
of Tenn. R. Civ. P. 12.02(1).” Redwing v. Catholic Bishop for Diocese of Memphis, 363
S.W.3d 436, 445 (Tenn. 2012). “We review a dismissal by the Claims Commission under
Tenn. R. Civ. P[.] 12.02(1) . . . de novo with no presumption of correctness.” Harris, 2014
WL 1887302, at *2 (citing Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000);
Conley v. State, 141 S.W.3d 591, 594-95 (Tenn. 2004)).
“[S]ubject matter jurisdiction refers to the power of a court to adjudicate a
controversy.” Church of God in Christ, Inc. v. L.M. Haley Ministries, Inc., 531 S.W.3d
146, 156 (Tenn. 2017) (citing Word v. Metro Air Servs., Inc., 377 S.W.3d 671, 674 (Tenn.
2012)). When a party challenges the existence of subject matter jurisdiction, the burden is
3
DHS also filed its motion under Rule 12.02(6), arguing that Claimant failed to state a claim for
which relief could be granted. However, that portion of DHS’s motion was not the basis for the
Commission’s ruling and is not pertinent to this appeal.
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on the plaintiff to establish that the court has jurisdiction to hear the case. Church of God
in Christ, Inc., 531 S.W.3d at 161 (citing Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn.
Ct. App. 2006)); Redwing, 363 S.W.3d at 445.
In 2017, the Supreme Court clarified the standard for reviewing a challenge to
subject matter jurisdiction. In Church of God in Christ, Inc. v. L.M. Haley Ministries, Inc.,
the court stated that a party “may take issue with a court’s subject matter jurisdiction using
either a facial challenge or a factual challenge.” 531 S.W.3d at 160 (quoting Redwing, 363
S.W.3d at 445). “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.” Id. 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. When resolving a factual attack on
subject matter jurisdiction, a court may consider matters outside the
pleadings, such as affidavits or other documents. Furthermore, motions
challenging subject matter jurisdiction are not converted to summary
judgment motions when matters outside the pleadings are considered or
when disputes of material fact exist. Rather, courts presented with such
motions must weigh the evidence, resolve any factual disputes, and
determine whether subject matter jurisdiction exists.
Id. (citations omitted).
DHS’s motion to dismiss was a factual challenge to whether the Commission had
subject matter jurisdiction in this case. In its motion and accompanying materials, DHS
claimed that there was insufficient evidence to prove the existence of a written contract. It
maintained that it never executed an agreement that entitled Claimant to benefit payments.
Clearly, DHS challenged the sufficiency of the evidence. Further, DHS continues to
present this argument on appeal, denying the existence of the Agreement. Accordingly,
we shall review DHS’s motion to dismiss as a factual challenge to whether the Commission
had subject matter jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(L).
Claimant maintains that the Commission has jurisdiction to hear his breach of
contract claim under section 9-8-307(a)(1)(L) because he satisfied the requirements of
Tennessee Rule of Civil Procedure 10.03 when he filed his complaint. Rule 10.03 states
that when the foundation of a claim is the existence of a written instrument, “a copy of such
instrument or the pertinent parts thereof shall be attached to the pleading as an exhibit
unless the instrument is . . . in the possession of the adverse party and this fact is stated in
the pleading.” Although Claimant did not attach a copy of the alleged Agreement to his
complaint, he attempted to satisfy the exception to Rule 10.03 by stating that DHS (through
Mr. McClyde) retained a copy of the Agreement. However, the trial court did not dismiss
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the complaint simply due to Rule 10.03. “In assessing factual challenges to subject matter
jurisdiction at the motion to dismiss stage, a court must keep in mind that the plaintiff bears
the ultimate burden of proving facts establishing the court’s jurisdiction over the case.”
Staats, 206 S.W.3d at 543. In that case, “[i]f a defendant has filed affidavits or other
competent evidentiary materials challenging the plaintiff’s jurisdictional allegations, the
plaintiff may not rely on the allegations of the complaint alone but instead must present
evidence by affidavit or otherwise that makes out a prima facie showing of facts
establishing jurisdiction.” Id.Because DHS presented a factual challenge to subject matter jurisdiction, Claimant
could “not rely on the allegations of [his] complaint alone” or “conclusory allegations” to
establish jurisdiction. Id. (quoting Chenault v. Walker, 36 S.W.3d 45, 56 (Tenn. 2001)).
Despite DHS presenting a factual challenge to subject matter jurisdiction in its motion to
dismiss, Claimant did not provide an alleged copy of the Agreement until after the
Commission granted DHS’s motion.
As described in its written order of dismissal, the Commission reviewed the
evidence presented by the parties to determine whether it had subject matter jurisdiction
under section 9-8-307(a)(1)(L). The only relevant evidence presented to the court at this
time were competing affidavits submitted by Claimant and Mr. McClyde. In the absence
of a copy of a written instrument, the Commission relied on the affidavit of Mr. McClyde
to determine that there was no proof of a written agreement between the parties. As a
result, the Commission determined that it did not have subject matter jurisdiction to hear
Claimant’s breach of contract claim.
Based on this Court’s review of the record, we agree with the Commission’s
decision to grant DHS’s motion to dismiss. The only potential evidence of a written
agreement was Claimant’s affidavit that claimed he executed the Agreement with Mr.
McClyde on October 4, 2017, and that Mr. McClyde retained a copy of the Agreement.
Presented with a factual challenge to subject matter jurisdiction, the Commission correctly
considered Mr. McClyde’s competing affidavit in resolving this factual dispute. See
Church of God in Christ, Inc., 531 S.W.3d at 160 (stating that the court “must weigh the
evidence” and “resolve any factual disputes” when presented with a factual challenge to
subject matter jurisdiction). It was Claimant’s burden to affirmatively establish that the
Commission had subject matter jurisdiction. See Church of God in Christ, Inc., 531
S.W.3d at 161; Redwing, 363 S.W.3d at 445. However, Claimant failed to provide
sufficient evidence to prove the existence of the Agreement that would enable him to bring
a claim under section 9-8-307(a)(1)(L).
Based on our foregoing discussion, we agree with the Commission’s decision to
grant DHS’s motion to dismiss under Tennessee Rule of Civil Procedure 12.02(1).
Claimant failed to provide sufficient proof a written contract to support his breach of
contract claim. Therefore, the Commission lacked subject matter jurisdiction to hear
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Claimant’s complaint under Tennessee Code Annotated section 9-8-307(a)(1)(L).4
Claimant asserts that even if the Commission lacked subject matter jurisdiction to
hear his complaint, it should have transferred the case to the board of claims. However,
Claimant did not include this argument as an issue in his brief. Therefore, any discussion
on the issue is waived. See Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Appellate
review is generally limited to the issues that have been presented for review.”).
IV. CONCLUSION
For the reasons stated herein, the judgment of the Commission is hereby affirmed.
This cause is remanded for further proceedings consistent with this opinion. Costs of this
appeal are taxed to the appellant, Anthony D. Herron, Jr., for which execution may issue if
necessary.
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CARMA DENNIS MCGEE, JUDGE
4
We recognize that Claimant did eventually provide an alleged copy of the Agreement after the
Commission granted DHS’s motion to dismiss. However, DHS vehemently asserted that the copy provided
by Claimant was a forged document. Even assuming arguendo that the copy provided by Claimant is a
genuine copy of the Agreement, Claimant failed to present this evidence with his complaint or in defense
to DHS’s motion to dismiss. Meaning, the Commission had no way of considering it as potential evidence
when it considered whether it had subject matter jurisdiction over the case. The sole issue presented to this
Court on appeal is whether the Commission properly granted DHS’s motion to dismiss because it lacked
subject matter jurisdiction. As a result, any potential post hoc evidence of the Agreement is irrelevant to
our analysis.
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