The opinion
IN THE COURT OF APPEALS OF TENNESSEE FILED
AT KNOXVILLE March 27, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STA NLE Y A. IS OM , SR., ) C/A NO. 03A01-9708-CH-00333
)
Plaintiff-A ppellant, ) KNOX CHANCERY
)
v. ) HON. FREDERICK D. McDONALD,
) CHANCELLOR
KNOX COUNTY RETIREMENT & )
PENSION BOARD and KNOX )
COUNTY, TENNESSEE, ) VACATED
) AND
Defendants-Appellees. ) REMANDED
CATHE RINE F. QU IST, Deputy Law Director, Knoxville, for Defendants-Appellees.
JIM D . OWE N, Kno xville, for Plain tiff-Appe llant.
O P I N IO 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 resu lt of his injuries, plaintiff was entitled to both w orker’s
compensation benefits and disability benefits under the Knox County Employee
Benefit S ystem Plan (“P lan”). Pursu ant to the term s of the Plan , plaintiff’s disa bility
benefits w ere reduce d by any work er’s comp ensation be nefits he rec eived. This
reduction continued in one form or another until April 1, 1995.
On No vember 2 , 1995, the S upreme C ourt issued a n opinion in
McCaleb v. Saturn Corp., 910 S.W.2d 412 (Tenn. 1995). On January 22, 1996,
plaintiff’s attorney notified the defendan t Knox Cou nty Retirement and Pen sion Board
(“Board”) of his belief that based upon McCaleb, plaintiff was entitled to a refund of
any prev ious of fsets. T he attorn ey also no tified K nox C ounty by an identica l letter.
The Board has not issued a final order or judgment in response to the claim.
On Ma y 24, 1996, plaintiff filed this action in Kn ox County Cha ncery
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 Anno tated §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
judgmen t, file a petition of certiorari in the c hancery cou rt of any coun ty
in which any one or more of the petitioners, or any one or more of the
material def endants res ide, or have their principa l 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 failur e to file in Ch ancery Cou rt 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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Chan cery Cou rt is with out juris diction t o review the Bo ard’s ac tion. Thankiwe v.
Traughber, 909 S.W.2d 802 (Tenn. App. 1994). The rule is mandatory and
jurisdicti onal in c ivil case s. Id. (Citations omitted).
In this case, the plaintiff has not soug ht review through the statutory
procedures. The Board has not acted upon the claim for refund. Since the Board has
not yet rendere d a “final o rder or judg ment” on the claim, it w as not app ropriate to
seek review in the Cha ncery Cour t.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, how ever, relates to th e Board’ s alleged fa ilure to correc t its “error” purs uant to
Section 9.06 of the Plan.2 The Bo ard must f irst render a fin al decision re garding 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 rem and with in structions to
1
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.”
2
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 adj usting,
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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proceed in accordance with this Opinion.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Don T. McM urray, J.
___________________________
William H. Inman, Sr.J.
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