FILED

March 27, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

STANLEY A. ISOM, SR., ) C/A NO. 03A01-9708-CH-00333

)

Plaintiff-Appellant, ) KNOX CHANCERY

)

v. ) HON. FREDERICK D. McDONALD,

) CHANCELLOR

KNOX COUNTY RETIREMENT & )

PENSION BOARD and KNOX )

COUNTY, TENNESSEE, ) VACATED

) AND

Defendants-Appellees. ) REMANDED

CATHERINE F. QUIST, Deputy Law Director, Knoxville, for Defendants-Appellees.

JIM D. OWEN, Knoxville, for Plaintiff-Appe llant.

O P I N I O N

Franks, J.

Plaintiff’s action for back benefits was dismissed by the Chancellor, and

plaintiff has appealed.

This action arose from a dispute about disability benefits. Plaintiff was

an employee of Knox County, and on May 13, 1988 he was injured in the course of

his employment. As a result of his injuries, plaintiff was entitled to both worker’s
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compensation benefits and disability benefits under the Knox County Employee

Benefit System Plan (“Plan”). Pursuant to the terms of the Plan, plaintiff’s disability

benefits were reduced by any worker’s compensation benefits he rec eived. This

reduction continued in one form or another until April 1, 1995.

On November 2, 1995, the Supreme Court issued an opinion in

McCaleb v. Saturn Corp., 910 S.W.2d 412 (Tenn. 1995). On January 22, 1996,

plaintiff’s attorney notified the defendant Knox County Retirement and Pension Board

(“Board”) of his belief that based upon McCaleb, plaintiff was entitled to a refund of

any previous offsets. The attorney also notified Knox County by an identica l letter. 

The Board has not issued a final order or judgment in response to the claim.

On May 24, 1996, plaintiff filed this action in Knox County Chancery

Court, essentially alleging breach of contract based upon the Board’s failure to refund

the money. The defendants filed a motion to dismiss which was granted on July 14,

1997.

Tennessee Code Annotated §27-9-101 provides:

Anyone who may be aggrieved by any final order or judgment of any

board or commission functioning under the laws of this state may have

said order or judgment reviewed by the courts, where not otherwise

specifically provided, in the manne r provided by this chapter.

Under T.C.A.§27-9-102:

Such party shall, within sixty (60) days from the entry of the order or

judgment, file a petition of certiorari in the chancery court of any county

in which any one or more of the petitioners, or any one or more of the

material def endants reside, or have their principal office, stating briefly

the issues involved in the cause, the substance of the order or judgment

complained of, of the respects in which the petitioner claims the order or

judgment is erroneous, and praying for an accordant review.

The failure to file in Chancery Court within the sta tutory time limits

results in the Board’s decision becoming final, and once the decision is final, the
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According to the Appellees’ Brief “Appellant and his counsel had appeared before the

Appellee/Board on several occasions since 1988 but never later appeared at a regularly scheduled

monthly meeting of the Appellee/Board nor did the Appellant request to be placed on a meeting

agenda.”

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This section provides:

If any error in any account or record is discovered which would result in any Participant’s

account or benefit being more or less than it would have been had the error not been

discovered or had the record been correct, the Employer shall correct the error by adjusting,

to the extent reasonable and practicable, the individual account or benefit, as the case may

be. Any such correction shall be conclusive and binding on all Participants.

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Chancery Court is without jurisdiction to review the Board’s ac tion. Thankiwe v.

Traughber, 909 S.W.2d 802 (Tenn. App. 1994). The rule is mandatory and

jurisdictional in c ivil cases. Id. (Citations omitted).

In this case, the plaintiff has not sought review through the statutory

procedures. The Board has not acted upon the claim for refund. Since the Board has

not yet rendered a “final order or judgment” on the claim, it was not appropriate to

seek review in the Chancery Court.1 Any of the Board’s past final orders or

judgments regarding plaintiff’s case cannot be challenged because no appeal was

perfected within sixty (60) days, in accordance with the statute. The plaintiff’s current

claim, however, relates to the Board’s alleged fa ilure to correc t its “error” pursuant to

Section 9.06 of the Plan.2 The Board must first render a final decision regarding this

claim in order for the plaintiff to seek review in the Chancery Court. T.C.A.

§27-9-101.

Accordingly, we vacate the judgment of the Trial Court and remand

with instructions that the matter be referred to the Board, with directions that the

parties comply with all necessary procedures to adjudicate this claim to a final

decision by the Board.

We asse ss costs one -half to each party and remand with instructions to
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proceed in accordance with this Opinion.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

William H. Inman, Sr.J.