FILED

January 21, 1999

Cecil W. Crowson

Appellate Court Clerk

WILLIAM PECK, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9806-CH-00279

v. )

) Davidson Chancery

WARDEN DAVID MILLS and ) No. 97-3038-I

SGT. JEFF BISHOP, )

)

Respondents/Appellees. )

)

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 Claims Division

2nd Floor Cordell Hull Building

425 Fifth Avenue North

Nashville, Tennessee 37243

ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE

OPINION
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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 "inmate advisor" assistance filed his

petition in the Chancery Court of Davidson County, Tennessee for a common

law writ of certiorari naming only Warden David Mills and Sergeant Jeff Bishop

as defendants.

The record discloses:

1. On October 22, 1996, appellant went before a disciplinary board

at Turney Center Prison for a hearing presided over by Sergeant Jeff Bishop. He

was accompanied by his inmate advisor and was convicted at the disciplinary

hearing of attempted escape.

2. No appeal was perfected by the appellant from this disciplinary

action thus making the order of October 22, 1996 the final order within the

Department of Corrections relating to the alleged attempted escape of the

appellant.

3. No further action by the appellant appears in the record until

September 11, 1997 when he filed his petition for certiorari pursuant to

Tennessee Code Annotated 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

asserting that the petition for certiorari was filed beyond the jurisdictional time

limit of sixty days provided by Tennessee Code Annotated section 27-9-102.

5. On April 14, 1998, appellant filed 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 14th amendment rights.

6. On April 30, 1998, appellant filed a motion to compel discovery

and a motion for production of documents.

7. On May 4, respondents filed a response to appellant's motion to

amend asserting that a motion to dismiss on jurisdictional grounds was pending.

8. On May 15, 1998, respondents filed a response to appellant's

motion to compel discovery.
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9. On May 19, 1998, the trial court issued its order denying

appellant's motion to amend his petition finding that an inmate advisor was not

a proper party to the action and that appellant had improperly attempted to file

his 42 U.S.C. section 1983 cause of action with a petition for writ of certiorari.

The trial court treated the respondent's motion to dismiss as a motion for

summary judgment because affidavits had been filed by the respondent and

granted said motion on jurisdictional grounds.

 10. On May 26, 1998, the trial court issued another order denying

appellant's motion to compel discovery in light of the fact that the petition for

writ of certiorari had previously been dismissed.

 11. On May 28, 1998, appellant filed his notice of appeal.

The action of the trial judge was clearly correct in that the Chancery

Court of Davidson County lacked subject matter jurisdiction after the expiration

of the sixty day time limit provided by Tennessee Code Annotated 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 the lack of any documentary evidence in the record to

demonstrate the perfection of an appeal within the rules of the Department of

Corrections, the only operative date from which the chancellor could have

calculated the statutory period was October 22, 1996. The sixty day time limit

under Tennessee Code Annotated section 27-9-102 started to run on that date and

had long since expired when the petition was filed on September 11, 1997.

The attempt to amend the petition after the jurisdictional time limit has

passed is of no avail.

Finally, our appellate courts have repeatedly condemned efforts to join

an original action in the trial court with trial court appellate review on certiorari.

Before considering the first issue, we wish to heartily

condemn that which appears to us to be a growing practice,

i.e., the joinder of an appeal with an original action and the

simultaneous consideration of both at the trial level. This
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Court is of the firm opinion that such procedure is inimical

to a proper review in the lower certiorari Court and creates

even greater difficulties in the Court of Appeals. The

necessity of a separation of appellate review of a matter and

trial of another matter ought to be self evident. In the lower

Court one is reviewed under appropriate Appellate rules and

the other is tried under the trial rules. In this Court our scope

of review is dependent upon nature of a proceeding. In this

case one matter would be limited by rules of certiorari review

and the other would be reviewed under 13(d), Tennessee

Rules of Appellate Procedure. Like water and oil, the two

will not mix.

Goodwin v. Metropolitan Board of Health, 656 S.W.2d 383 at 386-87

(Tenn.App.1983); see also State ex rel. Byram v. City of Brentwood, 833

S.W.2d 500, 502 (Tenn.App.1991); 

The action of the trial court in granting summary judgment to the

appellees is affirmed and costs are assessed against appellant, William Peck.

The case is remanded for collection of costs.

___________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________

BEN H. CANTRELL,PRES.JUDGE,M.S.

__________________________________

PATRICIA J. COTTRELL, JUDGE