(2) TRCP Rule 3 is not followed. The following language is substituted in its place:
Commencing a Claim and Procedure
Claims before the Commission are commenced in the manner described in T.C.A. §§ 9-8-301 et seq. and 401 et seq. especially 402.
(a) Tax Claims – Commenced
Claims for taxes paid under protest are commenced by filing an original complaint and two copies with the Clerk of the Tennessee Claims Commission.
(b) All Other Claims – Commenced
All other actions are commenced by filing a written notice of claim (see T.C.A. § 9-8- 402 for requirements) with the Division of Claims and Risk Management.
(c) From the Division of Claims and Risk Management to the Claims Commission:
A claim proceeds from the Division of Claims and Risk Management to the Claims Commission after the time periods set out in T.C.A. § 9-8-402(c) by either transfer from the Division of Claims and Risk Management (no action required by claimant) or by filing with the Claims Commission (claimant is required to act) within the time limit set out in T.C.A. § 9-8-402(c).
(d) Procedure Before the Claims Commission:
1. Small Claims Proceedings on Affidavit:
All claimants on the small claims docket proceeding on affidavit must file a “Notice Of Appeal” under oath and notarized accompanied by any and all witness statements under oath and notarized which the claimant wishes considered by the Claims Commission. The Clerk of the Claims Commission will notify all parties or their counsel and the Attorney General’s office which Commissioner is assigned to hear the action. The state will file a dispositive motion or countervailing affidavits within sixty (60) days of the date of notification by the Clerk of the assignment of a Commissioner. The claimant then has fifteen (15) days from receipt of the state’s response to file any response. The state then has fifteen (15) days to file any reply.
2. CICA, Pro Se Small Docket and Pro Se Worker’s Compensation
Criminal Injury Compensation Claims, pro se Worker’s Compensation claims and pro se small docket claims shall proceed on the “Notice of Appeal” as set out in (d)1. and/or the original claim form filed with the Division of Claims and Risk Management.
3. All Other Claims:
When the Division of Claims and Risk Management has transferred a claim to the Claims Commission or when a plaintiff files with the Claims Commission an appeal from a denied claim, then the clerk will notify all parties or their counsel and the Attorney General’s office which Commissioner is assigned to hear the action. Within thirty (30) days of the receipt of the notification of assignment of a Commissioner, the claimant shall file a complaint (which complies with TRCP 8 and 10). If such a complaint has already been filed with the Division of Claims and Risk Management, then this requirement is satisfied.
Excepting claims transferred by the Division of Claims and Risk Management when moving from the Division of Claims and Risk Management to the Tennessee Claims Commission per (c), the Division of Claims and Risk Management provides “Notice of Appeal” forms which may be used. These forms are not required, but are especially helpful for small claims (d)1. An easy procedure for a claim where a complaint complying with TRCP 8 and 10 was filed with the Division of Claims and Risk Management, is to use a “Notice of Appeal” form and attach a copy of the original complaint to it.
Editor’s Note: the text of Tenn. R. Civ. Pro. 3 is included only to help readers see what was deleted from the rule by the Claims Commission.
All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint. [As amended July 1, 1979 and January 24, 1992, effective July 1, 1992, and by order adopted January 28, 1993, effective July 1, 1993; and by order filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997; and by order effective July 1, 1998, and by order filed January 6, 2005, effective July 1, 2005.] Advisory Commission Comment Prior to the adoption of these Rules, a civil action at law could be continued and prosecuted, for purposes of applying statutes of limitation, after return of process unserved, by issuance of alias process from term to term or by recommencing suit within one year after failure to execute process. Rule 3 did not adopt the previous procedure regarding term-to-term issuance of alias process. Instead, the third sentence of Rule 3 contains a provision for obtaining issuance of new process within one year from issuance of the previous process. The Rule, of course, applies to all civil actions, whether legal or equitable in nature. Advisory Commission Comment  Because the former rule created confusion between the one-year recommencement period and the one-year saving statute, the recommencement provision is eliminated. The earlier six-month reissuance period is extended from six months to a full year. Advisory Commission Comment  Some clerks by local court rule may want to require lawyers to file a summons – not to toll the running of a statute of limitations, but rather to assist the clerks’ workloads. Other clerks may want to handle the chore themselves. Either position is appropriate under revised Rule 3. “Commencement” for statute of limitations purpose would occur on the day the complaint is filed, regardless of the method chosen for preparation of a summons. Deletion of the requirement of filing a summons in addition to a complaint returns the requirement for commencement to pre-1992 status. While there appeared to be reasons making the additional summons filing mandatory, other reasons militate against it. For one thing, the recent waiver of service provisions of Rule 4.07 may lull a lawyer into believing no summons need be filed under that procedure. For another, there is a hazard that a federal diversity case in Tennessee would not be commenced by simply filing the complaint required by Federal Rule 3. See Ragan v. Merchants Transfer & Warehouse Company, 337 U.S. 530 (1949), reaffirmed on this ground by Walker v. Armco Steel Corporation, 446 U.S. 740 (1980). Note that Rule 4.01, both then and now, requires the clerk to issue a summons “forthwith” once a complaint is filed (unless there is a waiver under Rule 4.07). Moreover, the amended rule does not prevent a lawyer from filing a summons with the clerk. In any event, good practice mandates following up to ensure that a summons is promptly issued and served. Advisory Commission Comment  The amendment to the third sentence removes the former eventuality of failure to return process within 30 days. Advisory Commission Comment  A complaint filed by a pro se litigant incarcerated in a correctional facility is governed by the prisoner-filing provision in Rule 5.06. Advisory Commission Comment  This amendment to the final sentence mirrors an amendment to Rule 4.03 increasing time for service of a summons from 30 to 90 days. Advisory Commission Comment  Rule 2 provides that “[a]ll actions in law or equity shall be known as ‘civil actions.’” The initial Advisory Commission Comment to Rule 2 explains that, “[p]rior to adoption of these Rules, Tennessee practice spoke of ‘civil actions at law’ (Tenn. Code Ann. § 20-2010 [repealed] and of ‘suits’ in chancery (Tenn. Code Ann. § 21-102) [repealed]. Rule 2 simplifies the terminology of applying a single term to all civil actions.” Consistent with that explanation, Rule 3 goes on to provide (in pertinent part) that “[a]ll civil actions are commenced by filing a complaint with the clerk of the court.” (Emphasis added.) Although Rules 2 and 3 simplified the terminology previously applied to “civil actions at law” and “suits” in chancery, those rules—as well as Rule 7—are silent as to their application to “petitions” authorized by statute. See, e.g., Tenn. Code Ann. §§ 4-5-322 (2011) (petition for judicial review under Administrative Procedures Act); 4-21-307 (2011) (petition for judicial review of order of Human Rights Commission); 27-8-106 (2000) (petition for writ of certiorari); 29-3-103 (2000) (“bill or petition” to abate a public nuisance); 29-16-104 (2000) (petition to take land by eminent domain); 29-27-106 (2000) (“bill or petition” for partition); 30-1-117 (“verified petition” to apply for letters of administration or letters testamentary to administer the estate of a decedent); 34-3-102 (2007) (petition for appointment of a conservator); 36-3-602 (2010) (petition for order of protection); 36-5-405 (2010) (petition to set, enforce, modify or terminate support); 36-6-108 (2010) (petition to alter visitation/parental relocation); 36-6-306 (2010) (petition for grandparent visitation); and 36-6-405 (2010) (petition to modify permanent parenting plan). Depending on the nature of a statutorily authorized “petition,” the petition might be considered a “complaint” for purposes of these Rules, or it might be considered a motion relating to a pending civil action. In determining whether or not a statutorily authorized petition is a “complaint” for purposes of these Rules, the court must give effect to the substance of the pleading, rather than its form. See, e.g., Brundage v. Cumberland Cnty., 357 S.W.3d 361, 371 (Tenn. 2011); Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010); Ferguson v. Brown, 291 S.W.3d 381, 386-87 (Tenn. Ct. App. 2008). As the Supreme Court has stated, “a trial court is not bound by the title of the pleading, but has the discretion to treat the pleading according to the relief sought.” Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995).