# FILED
January 21, 1999 Cecil W. Crowson Appellate Court Cle rk WILLIAM PECK, ) ) Petitioner/Appell

ant, ) Appeal No.

) 01-A-01-9806-CH- 00279 v. ) ) Davidson Chancery WARDEN DA

VID MILLS a

nd ) No. 97-3038-I SGT. JEFF BISHOP, ) ) Respondents/Appelle

es. ) )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

WILLIAM PECK, Pro Se 7475 Cockrill Bend Ind . Rd. Nashville, Tennessee 37209

JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General SOHNIA W. HONG Assistant Attorney General Civil Rights and Claim

s Division 2nd Floor Cordell Hu

ll Building 425 Fifth Avenue No

rth Nashville, Tennessee 37243 ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE 

# OPINION-2- This is an appeal by a prison inmate from the action of the trial judge in granting summary judgment dismissing his petition for certiorari on subject matter jurisdiction

grounds. Appellant acting pro se with " inma te advisor" assistanc e filed his petition in the Chancery Court of Davidson Co unty, Ten nessee for a commo n law writ of certiora

ri naming only Warden David Mills and Ser geant Jeff Bishop as defendants.

The record discloses: 1. On October

22, 1996, appellant went before a disciplinary board atTurney Center Prison for a hearing presided over by Sergeant Jeff Bishop. He
was accompanied by his inmate adviso r and was convicted at the disciplinary hearing of attempted escape. 2. No appeal w as perfected by the appellant from this disciplinary actionthus making the order of O ct ober 22, 1996 the fina l order within the Department

of Corrections re

lating to the alleged attempted escape of the appellant. 3. No further actio

n b y the appellant appea rs in the record unti

l September

11, 1 997 when h e filed his petition f or certiorari pur

suant to Tennessee Code A

nnotated section 27-9- 102. 4. On February 6, 1998, the Department of Corrections filed a motion to dismiss with accompanying affidavits and a memorandum of law assertingthat the petition for certiorari was filedbeyond the jurisdictional time limit of sixty days prov

ided by Tennessee C

ode Annotated secti

on 27-9-102. 5. On April 14, 1998, appellant file d a motion for leave

to amend his petition for writ of certiorari to add as a defendant his inmate advisor, Larry Chamberlain, and assert a cause of action under 42 U. S.C. section 1983 for violation of his 6th and 14 th amendment rights. 6. On April 30, 1998, app ellant filed a motio

n to compel discovery and a motion for produc

tion of documents. 7. On May 4, respondents filed a response to a

ppellant's motion

to amend asserting that a mot

ion to dismiss on jurisdicti onal grounds was pending. 8. On May 15, 1998, respondents filed a response to appellant's motion to compel discove ry.-3- 9. On May 19, 1998 , the tri al court issued its or der denying appellant's motion to amend his pet ition finding that an inm

ate advisor was not a proper party to

the action and

that appellant had im

properly attempted to file his 42 U.S.C. se

ction 1983 cause of action w ith a petition for wr

itof certiorari. The trial court treated the re spo ndent's motion to dismis s as a motion for summary j udgm ent because affida vits had been filed by t

he respondent and granted said motion on j urisdictional grounds. 10. On May 26, 1998, the tria l court issued another order denyin g appellant's motion to compel discov e ry in light of the fact that the petition for writ of certiora

ri had previously bee

n dismissed. 11. On May 28, 1998, app ellant filed his notic

e of appeal.

The action of the tr

i al judge was clearly correct in that the Chancery Court of Davidson County lac ked subject matter j urisdiction after t he expiration of the sixty day time limit provided by Tennessee Code A nnotated section 27-9- 102. This time limit

is mandatory and jurisdictional in civil actions. Thandiwe v. Traughber , 909 S.W.2d 802 (Tenn.App.1994).

The fact that an order

was entered in this

case on October

22, 1996 is undisputed. In view of

th e lack of any docume

ntary evidence in the

record to demonstrate

the perfection of an appeal within the rules of the Departme nt of Corrections, the only operative date from which the c hancellor could have calculated the statutory period was October 22, 1996. The sixty day time limit under Tennessee Code A

nnotated section 27-9- 102 started to run on that date and had long since expired

when the petition was filed on Septembe r 11, 1997.

The attempt to amend the

petition after the

jurisdictional time limit has passed is of no avail. Finally, our appellate court s have repeatedly condemn ed efforts to join
an original action in the trial court with trial court appellate review on certiorari.

Before considering the firs t issue, we wish to

heartily condemn that which a

ppears to us to be

a growing practice, i.e., the joinder of a n appeal with an ori ginal action and the simultaneous co nsider ation of both at the tr ial level. This-4- Court is of the firm opinion that such procedure is inimical to a proper review in the lower ce rtiorari Court and creates even greater difficul

ti es in the Court of Ap peals. The necessity of a separation of appellate review of a matter and trial of anothermatter ought to be self evident. In the lower Court one is reviewed under appropriate

Appellate rules a

nd the other is tried under the trial rules. In this Court our scope of review is dependen

t upon nature of a proc

eeding. In this case one matter would be

limited byrules of certiorari review and the other would be rev iewe d unde r 13(d), Tennessee Rules of Appellate Procedure. Like wat er and oil, the two will not mix. Goodwin v. Metropolitan Boa rd of Health, 656 S.W.2d 383 at 386 -87 (Ten n.App.1 983); see also State ex rel . Byram v. City o

f Brentwood, 833 S.W.2d 500, 502 (T

enn.App.1991);
The action of the trial court in granting summ ary judgm ent to the
a ppel lees is affirmed and co sts are assessed aga inst appellant, Wil

liam Peck. The case is rema

nded for collection o

f costs.

__ ________________________ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ BEN H. CANTRELL,PR ES.JUDGE,M.S.

__________________________________ PATRICIA J. COTTRELL, JUDGE