1 

# FILED
October 3, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION
DON PAR

IS, ) ) Plaintiff/A ppellant ) ) VERSUS ) NO. 01A01-9702-CH-00054 ) CITY OF LE BANON ) Wilson Co. Chancery No. 9950 PERSONNEL REVIEW BOARD, ) ) Defendant/Appellee )



### O P I N I O N This case is before the Court on Appeal from the Chance ry Court of Wilson County, Tennessee, w

herein the Chancellor dismissed a Petition for Certiorari under T.C.A. §27-9-101 and T.C.A.§27-9-102, as having been untimely filed.
The proc eeding s in the Cour t below ar

e to say the leas t unusual.
Appellant, Don Paris had been employed as a police officer by the City of Lebanon for more tha

n twenty (20) y

ears when he became involved in a disciplinary proceeding because of his a lleged disorderly

conduct on October 12, 1993. Disciplinary action wa s taken by

Acting Chief of Po lice, Bi lly Weeks, whic h action w as prompt

ly appealed by

Lt. Paris to the Personnel Review Boar d. A hearing before the Personne l Review Board was set for January 6, 1994 with Lt. Paris represented by his own retained at to rn ey.
Prior to this hearing, Lt. Paris and his attorney , Richard Brooks entered into a
se tt le me nt ag re em en t w it h A ct in g P ol ic e C hi ef , B il ly W ee ks an d Le ba no n C it y At to rn ey, Calvin P. Turner.

This settle

ment ag reemen t provide d in pertin

ent part : “. . . it is a

greed upon by the part ies and a pproved by t he Boar d as follo ws: 1. Lt. Paris will submit to routine physiatric (sic) evaluations for2 office rs involve d in violen

t alterc ations. 2. Lt. Paris will attend such supervisory training as the Acting Chief or his successor shall require. 3. Lt. Paris shall make an immediate appointment with Jim Harding and will attend such counseling as is recommended by Mr. Harding or the Wilson County

Mental He alth Cente

r and/or the Actin g Chief

or his successor. 4. Imme diately

upon appr

oval of th e Wilson Coun

ty M ental He alth Center, Lt. Paris shall return to his reg ular shift of 10:00 a.m. until 6:00 p.m. and return to duty as a Lieutenant and shall be on probationar y status for six month s. Failur

e to compl

y w ith this ag

reemen t will result in termination. Satisfactory c ompletion of this agreement will remove probatio nary

status at t

he end of six months. Entered this the 6th day of January, 1994.”

Because of this settlement agreement, the hearing scheduled befor e the Personnel Review B oard for

January 6, 1994 wa s cance

led. L t. Paris re ported to the Lebanon Cl

inic of Cumberland Mental Health Services, I nc.
A change of city

administration occurred and Charles Tomlinson became the new Chief of Po lice of th

e Le banon Polic e Depar

tment.
On February

23, 1994, Clinical Psychologist, Sandra De Mott Phillips, Ph.D., addres sed a l etter to Ch ief of Poli ce Tom lins on st ating: “After careful considera

tion of the results of my initial interview with Mr. Paris and the psycholog ical testing which was administered, I have concluded that Mr. Paris would not meet P.O.S.T. Commission standards for mental stability if he were apply

ing for a position as a police officer.”
On February

24, 1994, Chief Tomlinson addressed to Lt. Paris a letter which wa s receiv ed by

Lt. Pa ris on Fe bruary 26, 1994, r

eading in pertine

nt part: “This letter is to notify y

ou of your termination fr

om the City of Lebanon due to the ag

reement you a

nd your attorney

presented to the Personnel Appeal Hearing on January 6, 1994. We are taking the appropriate action required by the a greement that you agreed to. You have not met the ag reed requirements therefore w e are terminating you a s of February 28, 1994. You may g et a copy of the3 results from the Mental Health Center from the Personnel Offic e. You may pick up y

our check for the balance of y our vacation leave at the Lebanon Police Depar

tment on March 11, 1994. At that time, please bring with you any

keys, uniforms, or other

city property

which needs to be returned.”
Instead of appea

ling the action of Chief Tomlinson to the Personnel Review Board of the City

of Lebanon, L

t. Paris on April 29, 1994, filed in the Chancery Court for Wilson County, Tennessee, a document entitled:

“Petition for Certiorari to Review the Actions and/or Judgement of the City of L ebanon Personnel Review Board under the Provisions of Code Section §57-5-109, Tennessee Code Annotated.”
These Code Section Citations are clearly a misdesignation since T.C.A. §57-5-101 et seq., deals wit

h permits t

o sell bee r and alc oholic beverag es.
Without any mention of applicable Code Sections, a Writ of Certiorar i was issued by the Chancellor with command to the Mayor or Per sonnel Director of the City of Lebanon to send a ce

rtified transcript of all records and proceedings to the Chancery Court.
On June 22, 1994, City Attorney , William E. Farmer filed his Answer to the Certiorari Petition raising among other defense s a lack of subject matter jurisdiction.
In October, 1994, City

of Lebanon filed a Motion for Summary Judgement, which was responded to by

the Plaintiff on November 24, 1994.
The Motion for Summary Judgement by the City was heard be

fore the Chancellor on November 30, 1994 and an Order ag reed to by c ounsel for both parties was entered pursuant to this November 30, 1994 hearing, on the date of January 3, 1995. This Order provided in part: “1. The Court found the record submitted to be insufficient and therefore the Court ordered that the matter be remanded for the taking of4 additional evidence concerning the issues involved. 2. Upon being advised that the City of Lebanon Personnel Review Board was no longer used in re viewing personnel items, but has been replac ed by

the proc edure of

an Adminis trative L

aw Offi cer, wh o is a licensed attorney , the Court stated that upon this Order of Remand, the proceedings should be returned to the L ebanon Personnel Review Board or its legally author

ized successor, an Administrative Law Of ficer. 3. Furthermore, the Court directed that upon remand the Administrative Law Officer receive evidence upon the issues, and upon accumulating an additional record the matter shall be reviewed by

the Chancery Court of Wilson County, Tennessee. IT I S THEREFORE ORDERED, ADJUDGED AND DECREED that the proceedings in this matter are here by remande d to a City of L ebanon Administrative Law Officer for the express purpose of receiving evide nce on the issues in this cause. IT I S FURTHER ORDERED, ADJUDGED AND DECREED that upon receipt of the evidence and ac cumulation of a record, the matter shall be further reviewed by

the Chancery

Court of Wilson County, Tennessee. IT I S FURTHER ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgement and/or Motion to Dismiss are def erred until evidence has been received as state d herein.”
Pursuant to this Order of Remand from the Chancery Court, extensive testimony was taken before the Administrative Law Officer resulting in a re port from Administrative Law Officer , David B. Fouch, under date of Mar ch 26, 1996, wherein the Administrative Law Officer essentially found all the issues in favor of Lt. Paris holding that the City h ad brea

ched the contract of settle

ment of Janu ary

6, 1994 and essenti ally
re co mm en di ng th e r ei ns ta te me nt of Lt. Pa ri s t o d ut y.
All of this record was then certified back to the Court, with a hea ring set for Tuesday, Septembe

r 10, 1996.
Prior to the hearing, the City of Lebanon rene

wed its Motion for Summary Judgement referring particular ly to T.C.A. §27-9-101 and asse rting again lack of subject matter jurisdiction, because the original Petition had been untimely filed.5 The hearing of September 10, 1996, befor e the Chancellor was confined to a very lengthy discussion between counsel and the Court. At the conclusion of this lengthy discussion, the Trial Court took a recess and then returned and made its decision, dismissing the Certiorari Petition in its entirety. The hea rt of the Trial Court decision appear s in the fo llowing s tatement :

“And I don’t know

what I ordere d about g oing ba

ck to this administrative board. I may very we ll have ordered that. If

I did, I made a mistake. I apparently

made a mistake because I signed the order say

ing that. I believe y ’all have put me into an awkward position. A very uncomfortable position. There’s no use going on a nd making a lot of other errors . So, we’r

e going to do what ’s righ

t. What’s right is, in reading this code section here, TCA 27-9- 102: ‘Such parties shall within 60 days’ -- And y’all ar e not open for any

more argument, by

the way. ‘Such pa

rties shall within 60 days from entry of the order or judgement, file a petition of cer tiorari in the Chancery

Court.’ But, it says 60 day s from entry of or der or judgement. And that’s not talking about some

body ’s judge

ment in the

ir mind. I t’s talkin g about

a written o rder or written ju dgemen

t. I th ink we all know that
. Obviously , the dec ision of a police chief is no t an orde r or a jud gement . The only order

or judgement that has been entered is the a greed order of January 6. Which honestly , if Richard Brook’s client, Mr. Paris--I s that his name, Paris? MR. BROOKS: Yes, sir. THE COURT: If Paris was appea ling from that, he would be barred, obviously by

the 60 day rule. B ut from reading this, I don’ t think that’s what Mr. Brooks and his client are appea ling. I don’t think they ’re appealing the Jan

uary 6, 1994 or

der. I think they ’re in a

greem ent with it. I think what they

are really dissatisfied with is him being discharged on February 28, 1994.

. . . THE COURT: Any way , as I was say ing. What

Mr. Bro oks and his client is appealing from is this February 28, 1994 decision of discharge. And Mr. Brooks has untimely filed a writ of certiorari. The law requires all administrative remedies be exhausted before y ou come to this Court. I think we all agree that’s the decision of the law . That is the law. He d id not ex hau st hi s ad mi ni st rat iv e re med ies . He doe s no t h ave -- If what he’s appealing from is the decision of the c hief of police, he doesn’t have a order or a judgeme nt that he’s filing a writ of certiorari from. Or , the petition of certiorari in the Chancery Court because there is no judgement ordered.6 Now, if he’s appealing -- Or, if he ’s filing a petition for certiorari in reg ard to the Janua

ry 6th order , he’s ba

rred by the 60 day s. So, we’r e at the p oint of -- You know, there is nothing be fore thisCourt. I’m going to dismiss his petition for writ of certiorari. If he’s r elying on the Januar

y 6, 1994 orde

r, he’s b arred b y the Statute of Li mitations. If he ’s dissati sfied wit

h the dec ision of c hief of p olice, then he’s n ot timely or properly be

fore the Court because he’s not got an or der or judgement he’s filed this petition of certiorari in the Chancery Court from.”
Lt. Paris then appealed and we now face the same dilemma that the Trial Court faced.
We begin

with anal ysi s of T.C.A . §27-9-1 01 and T.C .A. §27-9 -102 whe n those statutes are applied to the facts of this case. T.C.A. §27-9-101 provide s a right of review for anyone a ggrieved “. . . by

any final orde

r or judgement of any

board or commission . . .” T.C.A. §27-9-102 provides that such parties shall “. . . within sixty (60) da ys from the entry of the or der or ju dgemen

t . . .” file a petition for cer tiorari i n the Chancery

Court.
It is unfortunate that the hearing of November 30, 1994 resulted in the Order entered January

3, 1995 remanding the case to the Administrative L aw Officer for the extensive evidentiary proc edures that followed. The original Petition for Certiorari filed April 29, 1994, was dead on arrival in the Chancery Court for reasons stated by the Trial Judge after the September 10, 1996 hearing . If, the Appellant had bee n filing a Petition for Certiorari from the agreed order before the Personnel Review B oard of January 6, 19 94 , t he n t he Pe ti ti on fi le d A pr il 29 , 1 99 4 w as ob vi ou sl y we ll pa st th e s ix ty ( 60 ) d ays authorized by T.C.A. §27-9-102. I t is, however, equally

clear from this record, that it was not the January 6, 1994 ag reed order before the Personne l Review Committee that was the subject of the Certiorari Petition, but rather, the letter from Chief Tomlinson of February 24, 1994, terminating Lt. Paris from the L ebanon Police Department. This letter is not a “. . . final order or judgement of any board or commission . . .” within the meaning of T.C.A. §27-9-101, nor is it “. . . the order or judg ement . . .” within the meaning of T.C.A. §27-9-10 2. The le tter fro m Chief Tom

linson is, th

erefor e, not a7

matter that is a proper subject of a Petition for Certiorari. The prope r action for the Plaintiff would have been the same action he had previously taken from the disciplinary order of Acting Chief, Billy Weeks. Whether the Personnel Review Board still existed or had been replaced by

the Administrative Law Office r by the time of the Chief Tomlinson discharge letter is immaterial. An adequate administrative remedy e

xisted for Paris by way of a n appeal to either the Personnel Review Board or the Administrative Law Office r and this adequate remedy was disregarded in favor of a n application to the Chancery Court for a Writ of Certiorari, which simply doe s not lie to review a termination letter from the Chief of Police. The Petition for Certiorari, filed more that sixty (60) days a

fter the January 6, 1994 ag

reed settlement before the Boar d of Review, would be filed too late, Wilson v. Town of Gre enville 509 S.W.2d 495. T.C.A. §27-9-101 and T.C.A. §27- 9-102 must be complied with or the Chancery Court does not have subject matter jurisdiction of the purported Petition for Certiorari, Thandiwe v. Traughber, et al , 909 S.W.2d. 802.
Nowhere in the proceedings bef ore the Chancery

Court is any mention made of T.C.A. §27-9-114. This section provided, prior to Chapter 1001 §1 of the Public Acts of 1988: “27-9-144. Proceedings involving cer tain public employees. -- (a) No court of record of this state shall enter tain any proceeding involving the civil service status of a county or municipal employee w hen such procee ding is in

the natur e of an a ppeal fr om a ruling

of a city or county officia l or boar d which a ffects t he employ

ment statu s of a cou

nty or city employ ee, exce pt such pr oceeding be one

of common

law cer tiorari. (b) Any such pr

oceeding shall be heard by a judge or chancellor without th e i nt er ve nt io n o f a ju ry. ( c) This section shall supersede and displace provisions of city charters to the contrary .”
T.C.A. §27-9-114 was, thus, originally verbatim codification of Chapter 266 of the Acts of 1949.8 This statute provided little change from preexisting law, but the Supreme Court of Tennessee in Huddleston v. City of Murfree sboro 635 S.W. 2d 694 (1982), held that the Court review, provided by T.C.A. 27-9-114, provided the exclusive remedy for Judicial Review of administrative determinations respecting the employ ment status of county or municipal employees. The Supreme Court remanded the case: “. . . to the

circuit c ourt for

a review of the r

ecord c ertifie d to it from the City Council, such review to be restricted to that afforded by our law of co mmon law c ertiora ri, that is , the reviewing

court should determine from the evidence filed befor e the lower tribunal whether that tribunal acted arbitrarily , illegally or without material supporting evidence.” Huddleston v. City of Murfree sboro 635 S.W. 2d 694, 696
It was not until Chapter 1001 of the Public Acts of 1988 beca me effective January 1, 1989, that any substantive cha nge in the standard of review occ urred.

This 1988 Act repe aled the previous§27-9-11 4 and rec odified it , so that, subsequent to January 1, 1989, the law provide d, insofar as it is material to the case at bar, t he fol lowi ng:

“27-9-114. Proceedings involving cer tain public employees. -- (a) (1) Contested case hearing s by civil service boa rds of a county or municipality which affect the employment status of a c ivil service employee shall be c onducted in conformity with conte sted case procedures under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

. . . (b) (1) Judicial review of decisions by civil service boards of a county or municipa lity which af fects the employ ment statu s of a cou

nty or city civil service employ ee shall be in conformity with the judicial review standards under § 4-5-322 of the Uniform Administrative Procedures Act. (2) Petiti ons for ju dicial re view of d ecisions by a

city or county

civil service board affecting

the employment status of a civil servic e employee shall be f iled in the chance ry court of the count y wherein t

he local civil service board is located.”

Tennessee Code Annotated. §27-9-114 The powers of Judicial Review possessed by the Chancery

Court under T.C.A. §4- 5-322 are much more broad in scope than the powe rs of review under traditional common law certiorari. Among the powers g iven the reviewing Court under T.C.A. §4-5-322 are :9 “(g) T he revie w shall be

conducted by

the cour t without a

jury and shall be confined to the record. I n cases of alleged irreg

ularities in procedure before the age ncy , not shown

in the re cord, pr

oof ther eon may be taken in the court. (h) The court may

affirm the decision of the agency or remand the case for further proceedings. The c ourt may reve rse or modify the decision if the rights of the petitioner have been prejudice d because the administrative finding s, infer

ences, c onclusion s or deci sions are : (1) I n violation

of constitutional or

statutory provision s; (2) I n excess of

the statut ory authority of the ag ency ; (3) Made upon unla

wful proc edure; (4) Arbitrary

or capricious or characterized by abuse of discretion or clearly unw arranted exercise of discretion; or (5) Unsupported by

evidence which is both substantial and material in the light of the entire record. In de termining the substa

ntiality of evide nce, the court sha ll take int o account whatever in the record f airly detra

cts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” The Legislative c ommand of T.C.A §27-9-114 has thus mandated, at least since January 1, 1989, that proceedings before county or municipal civil service boards must be conducted in conformity

with the Uniform Administrative Procedures Act and that Judicial Review of such civil service board hearings must be in the Chance ry Court in the county where

in the local civil service board is located and the standard of Chancery Review must conform to T.C.A. §4-5-322.
It must be noted, that all actions of every one involved in the case at bar, occurre d subsequent to January 1, 1989, the eff ective date of amended T.C.A. §27-9-114, adopting appropriate provisions of the Uniform Administrative Procedures Act. The standards of review, provided by

the present T.C.A. §27-9-114, provide the presently applicable law. Holde r v. Ci ty of Chat tanoo ga 878 S.W.2d. 950. (1993).
T.C.A. §4-5-322 (b)(1) provides in pertinent part conce rning Judicial review: “. . . Such petition shall be filed within sixty (60) day s after the entry of the agency ’s final order thereon . . .”10 The problem for the Appellant at bar, at either c ommon law certiorari or Judicial Review under T.C.A. §27-9-114 and T.C.A. §4-5-322 is that we are dealing with subject matter jurisdiction. The lack of adjudicatory power, by a

Court lacking subject matter jurisdiction, has long been settled as it relates to certiorari. Thandiwe v. Traughber 909 S.W. 2d. 802 (Tenn. App. 1994). The lack of adjudicatory power, by a

Court lacking subject matter jurisdiction, is equally settled under T.C.A. §4-5-322. Bishop v. Tennessee Department of Corrections 896 S.W.2d. 557 (Tenn. App. 1994).
Just as the termination letter from Chief Tomlinson of February 24, 1994 was not a “. . . final order or judgement of a ny board or c ommission . . .” within the meaning of T.C.A. §27 -9-101, s o the lette r is not “. . . a fina

l decision in a conte sted cas e . . .” within the meaning of T.C.A. §4-5-322.
Such being the case, this Court has no subject matter jurisdiction just as the Trial Court had no subject matter jurisdiction.
Thus, the action of the Chancellor in the belated dismissal of the Petition of Certiorari is affirmed.

___________________________ WILLIAM B . CAIN, JUDGE CONCUR:

_____________________________________ HENRY F. TODD, PRESIDIN G JUDG

E, MIDDLE SEC TION

_____________________________________ WILLIAM C. KOCH, JR., J UDGE