Frazier v. Cocke

• Court: Court of Appeals of Tennessee
• Decided: August 17, 1998
• Docket: 03A01-9804-CV-00128
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED August 17, 1998 ED FRAZIER, ) C/A NO. 03A01-9804-CV-00128 ) Cecil Crowson, Jr. Plaintiff-A ppellant, ) COCK E CIRC UIT Appellate C ourt Clerk ) v. ) HON. REX HENRY OGLE, ) JUDGE COCKE COUNTY BEER BOARD, ) WILLIAM HAL CUTSHAW, AND ) JOHNNIE ARTHUR ST YLES, ) d/b/a AMOCO EXPRESS, ) AFFIRMED ) AND Defendants-Appellees. ) REMANDED

JOHN B. BU NNE LL, Ne wport, fo r Plaintiff-A ppellant.

CLYDE A. DUNN , Newport, for Defendants-Appellees.

O P I N IO N

Franks, J.

Plaintiff filed his comp laint as “Petition for Writ of Certiorari in

Granting Package and Beer Sales License” on June 16, 1997, and charged “that

defenda nt Cocke County Be er Board improper ly granted a pa ckage be er permit to

defendants . . . on or about October 7, 1996, in Newport, Cocke County, Tennessee,

contrary to Te nnessee C ode An notated §5 7-5-105(b )(1).” Resp onding to a Motion to

Dismiss, the Trial Judge held:

The petition for certiorari filed by the plaintiff was not filed within the sixty day time period prescribed by T.C.A. § 27-9-102 , and, further , it appearing to the Cou rt that the perm itees no long er have a b eer permit issued by Cocke County, Tennessee, but, to the contrary, have a beer permit is sued f rom the City of N ewpo rt, the issu es are re ndered moot. Acco rdingly, the comp laint is dis missed . . . .

The Be er Board ’s actions are judicially review ed by a statutory w rit of certiorari, which is “the sole remedy and exclusive method of review of any action or order. . . .”

T.C.A. § 57-5-108 and 109 . The proc edure for th is right of rev iew is estab lished in

T.C.A. §27-9-101 et seq., and T.C.A. §27-9-102 provides in pertinent part that

petitioner “shall, within sixty (60) days from the entry of the order or judgment, file a

petition of certio rari in the Chan cery Cou rt . . . .”

The com plaint show s on its face th at the petition w as not filed w ithin

sixty days of the Board’s order, and as we said in Thandiwe v. Traughber, 909 S.W.2d

802, 804 (Tenn . App. 1994):

The time limits apply to both the common law and statutory writs of certiora ri. Fairbanks Corp., 566 S.W .2d at 886. T he failure to f ile within the statutory time limits results in the Board’s decision becoming final, and on ce the decis ion has be come fin al, the Chan cery Court is deprived o f jurisdiction; Wheeler v . City of Me mphis, 685 S .W.2d 4, 6 (Tenn. A pp. 1984 ); Fairhaven Corp. v. Tenn. Health Fac. Com’n., 566 S.W.2d at 887.

We affirm the judgment of the Trial Court in holding that it did not have

jurisdiction in this case because the petition was not timely filed, pursuant to statute.

The judgment of the Trial Court is affirmed with the cost of the appeal

assessed to plaintiff, and the cause remanded.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.