Dishmon v. Shelby State Community College

FILED
October 15, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE

LEON DISHMON, )
)
Plaintiff/Appellee, )
)
) Davidson Chancery
VS. ) No. 95-2141-III
)
) Appeal No.
SHELBY STATE COMMUNITY ) 01A01-9610-CH-00477
COLLEGE, )
)
Defendant/Appellant. )

APPEAL FROM THE CHANCERY COURT
FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For Plaintiff/Appellee: For Defendant/Appellant:

Harold D. Archibald Paul G. Summers
Archibald & Halmon Attorney General and Reporter
Memphis, Tennessee
Mary E. Walker
Assistant Attorney General

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VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

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 OPINION

This appeal involves a dispute over back pay between Shelby State
Community College and its Dean of Student Affairs. After the college president
reinstated him approximately three years following his termination, the dean filed a
petition under the Tennessee Uniform Administrative Procedures Act in the
Chancery Court for Davidson County seeking back pay. The trial court conducted
a bench trial and concluded that the dean was entitled to back pay. The college
asserts on this appeal that its decision not to grant the dean back pay was not
arbitrary and that the dean had not proved that he suffered any economic loss as a
result of his termination. We have determined that the trial court did not have subject
matter jurisdiction over this claim, and, therefore, we vacate the judgment and
remand the case with directions that it be dismissed.

I.

In March 1991, the Tennessee Board of Regents hired Leon Dishmon as the
Dean of Student Affairs at Shelby State Community College (“Shelby State”). Mr.
Dishmon agreed in his employment contract to devote his full time to his duties and
to perform these duties to the best of his ability. The employment contract also
provided that Mr. Dishmon’s employment would be subject to state law and the “
policies and requirements” of the Board of Regents and Shelby State and that,
following a six-month probationary period, the employment agreement could be
terminated by either party upon fifteen days notice.

As the Dean of Student Affairs, Mr. Dishmon served as Shelby State’s chief
manager of non-academic programs and student support services. His areas of
responsibility included admissions and financial aid, career and job placement,
counseling, and student records. He was also responsible for supervising student
organizations and activities.

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 In August 1991, Shelby State requested the Board of Regents to provide
funding for additional faculty and operating expenses. The Board of Regents
questioned Shelby State’s enrollment figures and decided to audit student
enrollment, financial aid, and student records during the fall 1991 semester. That
audit uncovered, among other things, violations of the Board of Regents’ and
Shelby State’s guidelines and policies governing the payment of fees, the awarding
of financial aid, the granting of scholarships and emergency loans, and irregularities
in student admissions and student records. The results of this audit triggered
another audit by the Comptroller of the Treasury uncovering additional problems
regarding unfunded grants, uncollected debts from students, and liabilities to the
United States Department of Education.

Mr. Dishmon, as Dean of Student Affairs, was responsible for several of the
areas criticized by the audit. Accordingly, on July 24, 1992, Shelby State’s
president terminated Mr. Dishmon for poor performance. In his letter notifying Mr.
Dishmon of his decision, the president informed Mr. Dishmon that he was entitled to
a hearing before an administrative law judge if he wished to contest his termination.
Mr. Dishmon requested a hearing which was held on February 10 and 11 and March
8, 1993 before an administrative law judge assigned by the Secretary of State. On
July 1, 1994, the administrative law judge filed an initial order finding that Mr.
Dishmon was “in technical violation” of several Tennessee Board of Regents
policies but that “his violations were never due to bad faith on his part.” He also
found that Shelby State’s president had been aware of the policy violations and had
taken “virtually no action” to remedy them. Accordingly, the administrative law
judge concluded that Mr. Dishmon “became the scapegoat for Shelby State’s
collective policy violations over which he was only one of a group of well-meaning
violators” and ordered him reinstated to his previous or a similar position and that
Shelby State pay his legal expenses.

Rather than reinstating Mr. Dishmon, Shelby State requested its own president
to review the administrative law judge’s order. On April 13, 1995, while this appeal

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was pending, Mr. Dishmon moved for reinstatement and back pay. On May 11,
1995, Shelby State’s interim president, who had replaced the president who
discharged Mr. Dishmon, informed Mr. Dishmon that Shelby State would reinstate
him effective June 1, 1995. Four days later, the interim president issued a final order
affirming the administrative law judge’s initial order. Mr. Dishmon requested the
interim president to clarify his decision regarding damages and back pay. Neither the
interim president nor Shelby State responded to this request.

Thereafter, on July 12, 1995, Mr. Dishmon filed a petition for judicial review in
the Chancery Court for Davidson County. Based on allegations that Shelby State’s
refusal to pay him was “contrary to law, arbitrary and capricious,” he requested the
trial court to award him back pay from the date he had been dismissed as Dean of
Student Affairs. On September 5, 1996, the trial court filed a memorandum opinion
concluding that the administrative law judge and Shelby State had arbitrarily ignored
Mr. Dishmon’s request for back pay. In its September 24, 1996 judgment, the trial
court awarded Mr. Dishmon “full back pay beginning with his wrongful termination
of July 24, 1992 until his reinstatement effective June 1, 1995.” Shelby State has
perfected this appeal.

II.

The scope of appellate review generally extends to the issues raised by the
parties. However, appellate courts may, on their own motion, consider issues not
raised by the parties in order to prevent needless litigation, injury to the public’s
interest, and prejudice to the judicial process. See Tenn. R. App. P. 13(b). Among
the issues most commonly considered by appellate courts on their own motion is the
trial court’s subject matter jurisdiction.

The concept of subject matter jurisdiction involves a court’s power to
adjudicate a particular type of controversy. See Meighan v. U.S. Sprint
Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Turpin v. Conner Bros.

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Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988). Courts derive their subject
matter jurisdiction from the Constitution of Tennessee or from legislative act, see
Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Brown v. Brown, 198 Tenn.
600, 618-19, 281 S.W.2d 492, 501 (1955), and cannot exercise jurisdictional powers
that have not been conferred directly on them expressly or by necessary implication.
See Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896, at *2 (Tenn. Ct.
App. Mar. 30, 1994) (No Tenn. R. App. P. 11 application filed).

A court’s subject matter jurisdiction in a particular circumstance depends on
the nature of the cause of action and the relief sought. See Landers v. Jones, 872
S.W.2d 674, 675 (Tenn. 1994). It does not depend on the conduct or agreement of
the parties, see Shelby County v. City of Memphis, 211 Tenn. 410, 413, 365
S.W.2d 291, 292 (1963); James v. Kennedy, 174 Tenn. 591, 595, 129 S.W.2d 215,
216 (1939), and thus the parties cannot confer subject matter jurisdiction on a trial or
an appellate court by appearance, plea, consent, silence, or waiver. See Caton v.
Pic-Walsh Freight Co., 211 Tenn. 334, 338, 364 S.W.2d 931, 933 (1963); Brown v.
Brown, 198 Tenn. at 618-19, 281 S.W.2d at 501.

Judgments or orders entered by courts without subject matter jurisdiction are
void, see Brown v. Brown, 198 Tenn. at 610, 281 S.W.2d at 497; Riden v. Snider,
832 S.W.2d 341, 343 (Tenn. Ct. App.1991); Scales v. Winston, 760 S.W.2d 952,
953 (Tenn. Ct. App. 1988). The lack of subject matter jurisdiction is so fundamental
that it requires dismissal whenever it is raised and demonstrated. See Tenn. R. Civ.
P. 12.08. Thus, when an appellate court determines that a trial court lacked subject
matter jurisdiction, it must vacate the judgment and dismiss the case without reaching
the merits of the appeal. See J.W. Kelly & Co. v. Conner, 122 Tenn. 339, 397, 123
S.W. 622, 637 (1909).

III.

Mr. Dishmon’s petition sought judicial review under the Tennessee Uniform

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Administrative Procedures Act. The Act, however, is inapplicable to proceedings
that do not fit within its adjudicatory definitions. See National Health Corp. v.
Snodgrass, 555 S.W.2d 403, 405-06 (Tenn. 1977); Mid-South Indoor Horse
Racing, Inc. v. Tennessee State Racing Comm’n, 798 S.W.2d 531, 536 (Tenn. Ct.
App. 1990). Judicial review under the Act is limited to final decisions in contested
cases. See Tenn. Code Ann. § 4-5-322(a)(1) (1998); Ben H. Cantrell, Judicial
Review under the Tennessee Uniform Administrative Procedures Act – An Update,
13 Mem. St. U.L. Rev. 589, 595 (1983). Thus, judicial review under Tenn. Code
Ann. § 4-5-322 is not available if the proceeding to be reviewed is not a contested
case. See Mid-South Indoor Horse Racing, Inc. v. Tennessee State Racing Comm’
n, 798 S.W.2d at 536.

According to Tenn. Code Ann. § 4-5-102(3) (1998), a “contested case” is a
proceeding in which the legal rights, duties or privileges of a party are required by
any statute or constitutional provision to be determined by an agency after an
opportunity for a hearing. To determine whether any particular dispute is a
contested case under the Uniform Administrative Procedures Act, we must examine
the applicable statutes and constitutional provisions to see if any of them provide
that a complainant’s rights must only be determined after an opportunity for a
hearing. See William P. Kratzke, A Review of Contested Case Provisions of the
Tennessee Uniform Administrative Procedures Act, 13 Mem. St. U.L. Rev. 551, 554
(1983). We have found no provision in the United States Constitution, the
Constitution of Tennessee, or the applicable statutes that requires Shelby State to
provide its deans with a hearing in employment disputes.

Shelby State is part of the community college system. See Tenn. Code Ann.
§ 49-8-101(a) (1996). Its management and control is vested in the Board of Regents.
See Tenn. Code Ann. § 49-8-101(b). Among the Board of Regents’ statutory
duties is the duty to establish a formal grievance procedure for the support staff of
the community college system which affords them a contested case hearing with
regard to demotions, suspensions, suspensions without pay, or terminations for

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cause. See Tenn. Code Ann. § 49-8-117(b)(3) (1996). According to Tenn. Code
Ann. § 49-8-117(a)(2), “support staff” includes employees “who are neither faculty
nor executive, administrative or professional staff of the . . . community college.”

Mr. Dishmon, as Dean of Student Affairs, was not a support staff employee at
Shelby State, but rather was a member of the school’s administration. 1 Because Mr.
Dishmon was not a support staff employee, he had no statutory right to a contested
case hearing regarding the termination of his employment contract. His employment
dispute with Shelby State, accordingly, did not constitute a contested case under
Tenn. Code Ann. § 4-5-102(3).
The record indicates that Shelby State appealed the administrative law judge’s
July 1994 reinstatement order to its interim president. The interim president reviewed
the case and entered a final order approving Mr. Dishmon’s reinstatement and the
payment of his legal expenses. That determination appears to be the final step of the
grievance procedure for administrative employees like Mr. Dishmon. Rather than
treating his claim for back pay as a grievable matter, Mr. Dishmon should have
pursued it as damages for breach of his employment contract by filing a claim with
the Tennessee Claims Commission in accordance with Tenn. Code Ann. §
9-8-307(a)(1)(L) (Supp. 1998).

Mr. Dishmon’s demand for back pay from Shelby State was not a contested
case. Accordingly, he did not have a right to seek judicial review of the interim
president’s decision in the trial court under Tenn. Code Ann. § 4-5-322. The trial
court should have dismissed Mr. Dishmon’s petition for lack of subject matter
jurisdiction even if Shelby State did not assert the defense.

IV.

We vacate the trial court’s judgment and remand the case with directions that
the trial court enter an order dismissing Mr. Dishmon’s petition for lack of subject
matter jurisdiction. We tax the costs of this appeal in equal proportions to Leon

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Dishmon and Shelby State Community College.

______________________________
WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________
SAMUEL L. LEWIS, JUDGE

_______________________________
BEN H. CANTRELL, JUDGE

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