FILED

Sept. 27, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

FRANK BELL, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9506-CH-00273

v. )

) Davidson Chancery

CHRISTINE BRADLEY, et al, ) No. 94-2561-III

)

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

FRANK BELL

R.M.S.I./U-5-B-101

7475 Cockrill Bend Industrial Road

Nashville, Tennessee 37243

PRO SE PETITIONER/APPELLANT

CHARLES W. BURSON

Attorney General and Reporter

JOHN R. MILES

404 James Robertson Parkway

Suite 2000, Parkway Towers

Nashville, Tennessee 37243-0488

ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED
Court of Appeals Rule 10(b): 1

The Court, with the concurrence of all judges participating in the

case, may affirm, reverse or modify the actions of the trial court

by memorandum opinion when a formal opinion would have no

precedential value. When a case is decided by memorandum opinion

it shall be designated "MEMORANDUM OPINION," shall not be

published, and shall not be cited or relied on for any reason in a

subsequent unrelated case. 

2

SAMUEL L. LEWIS, JUDGE

MEMORANDUM OPINION1

This is an appeal by petitioner, Frank Bell, from the

chancellor's judgment dismissing Mr. Bell's petition for writ of

certiorari. The chancellor dismissed the petition on the ground

that it "was not timely filed."

The record does show that petitioner filed the petition

within sixty (60) days of the final disposition of petitioner's

disciplinary appeal. On appeal, respondents admit that the

petition was timely filed, but insist the chancellor's judgment

should be affirmed on the ground that the petition does not state

a cause of action. Respondents contend that it would be futile to

reverse the order of the chancery court because the petition fails

to state a ground upon which the chancellor could grant relief.

"Where the lower Court decides a case correctly, but upon

an erroneous ground, [this] court will affirm the decree basing its

decision upon what it conceives to be the correct theory." Hamby

v. Fouche, 15 Tenn. App. 248, 251 (1932).

The Supreme Court of Tennessee has held that "[c]ommon law

certiorari is available where the court reviews an administrative

decision in which that agency is acting in a judicial or quasijudicial capacity." Davison v. Carr, 659 S.W.2d 361, 363 (Tenn.

1983). Tennessee Code Annotated section 27-8-101 provides:

The writ of certiorari may be granted whenever

authorized by law, and also in all cases where an

inferior tribunal, board, or officer exercising
3

judicial functions has exceeded the jurisdiction

conferred, or is acting illegally, when, in the

judgment of the court, there is no other plain,

speedy or adequate remedy. This section does not

apply to actions governed by the Tennessee Rules of

Appellate Procedure.

Tenn. Code Ann. § 27-8-101 (Supp. 1994).

The scope of review under common law writ of certiorari is

limited to the record to determine, as a matter of law, whether

there is any material evidence to support the agency's finding.

Davison, 659 S.W.2d at 363. In order for petitioner's common law

writ of certiorari to properly arrive within the jurisdiction of

the chancery court, it must allege facts which would show that the

disciplinary board acted outside its jurisdiction, illegally,

arbitrarily, or fraudulently. See Tomlinson v. Board of

Equalization, 88 Tenn. 1, 6-7, 12 S.W. 414 (1889); Spunt v.

Fowinkle, 572 S.W.2d 259, 265 (Tenn. App. 1978).

The petition alleged that the disciplinary board erred

because it did not find petitioner innocent of disciplinary reports

which were issued to the board. Even if that allegation is true,

it does not establish that the disciplinary board acted illegally,

arbitrarily, fraudulently, or in excess of its jurisdiction in

finding petitioner guilty of the charges in each of the matters.

Here, petitioner is questioning the correctness of the disciplinary

board's decision and the internal policies of the Tennessee

Department of Correction. 

The correctness of the application of a principle of law by

the Board of Claims is not reviewable by certiorari. Henry v.

Board of Claims, 638 S.W.2d 825, 827 (Tenn. App. 1982).

"[C]ourts do not have jurisdiction to review

decisions of [Boards] as to whether there is

material evidence to support the findings of the

Board."...The trial court cannot review the

intrinsic correctness of the Board's decision. To
4

do so would be to exceed the power and jurisdiction

of the trial court under the common law writ of

certiorari.

Larue v. Bell, No. 01-A-01-9403-CH00328, 1994 WL 462221, at *2

(Tenn. App. at Nashville 26 Aug. 1994)(quoting Murry v. Tennessee

Bd. of Paroles, No. 88-288-II, 1989 WL 14221, at *2 (Tenn. App. at

Nashville 22 Feb. 1989)(citations omitted)).

Here, the correctness of the disciplinary board's

application of the internal policies of the Department of

Correction is not reviewable by common law writ of certiorari. The

chancery court lacked jurisdiction to conduct the review requested

by petitioner, and the chancellor should have dismissed the

petition for this reason.

For the reasons set forth, the decision of the chancery

court is affirmed, and the costs are taxed to the petitioner. The

cause is remanded to the chancery court for any further necessary

proceedings. 

__________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________

HENRY F. TODD, P.J., M.S.

_________________________________

BEN H. CANTRELL, JUDGE