                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   February 7, 2003 Session

            BOB KIELBASA, ET AL. v. B & H RENTALS, LLC, ET AL.

                       Appeal from the Circuit Court for Wilson County
                          No. 11810    John D. Wootten, Jr., Judge



                     No. M2002-00129-COA-R3-CV - Filed May 22, 2003


Plaintiffs appeal from the action of the trial court dismissing their Complaint for Declaratory
Judgment on the basis that it is barred by the statute of limitations. A previous Petition for Writ of
Certiorari under Tennessee Code Annotated section 27-9-101 had been dismissed by the Chancery
Court of Wilson County because it was filed after the limitation period provided by Tennessee Code
Annotated section 27-9-102 had expired. That dismissal was upheld on appeal and this suit for
declaratory judgment followed. The trial court correctly dismissed the complaint because of the
expiration of the statute of limitations.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
W. FRANK BROWN , III, SP . J., joined.

Jerry Gonzalez, Nashville, Tennessee, for the appellants, Bob Kielbasa and Veeda Kielbasa.

Gregory S. Gill and Jere N. McCulloch, Lebanon, Tennessee, for the appellees, B & H Rental, LLC
and Horizon Concrete, Inc.

Michael R. Jennings, Lebanon, Tennessee, for the appellee, Wilson County.

                                             OPINION

        These parties are before the Court for a second time on identical facts, this Court having
previously held that Plaintiffs were barred from relief by their failure to file a Petition for Writ of
Certiorari challenging the action of the Wilson County Board of Zoning Appeals within the sixty day
statute of limitations provided by Tennessee Code Annotated section 27-9-102. The facts of the case
are essentially undisputed. The parties are adjoining landowners. Appellants own property located
at 5052 Beckwith Road, Mt. Juliet, Tennessee, same being parcel 58.01, map 78. Appelles own
parcel 57, map 78. Priscilla Hand was Appellees’ predecessor in title. On July 8, 1997, Priscilla
Hand submitted an appeal to the Wilson County Board of Zoning Appeals seeking grant of use on
appeal pursuant to the zoning ordinance in order to construct a concrete plant on parcel 57. As
required by the zoning ordinance, notice was properly published in the “Lebanon Democrat,” a
newspaper of general circulation in Wilson County. Pursuant to this notice, a hearing was held
before the Board of Zoning Appeals of Wilson County on July 25, 1997, and the application filed
by Ms. Hand was approved by the Board. Appellants did not file their Petition for Writ of Certiorari
until April 8, 1998, some 257 days after the action of the Board of Zoning Appeals.

         Chancellor C.K. Smith dismissed the Petition for Writ of Certiorari holding that the sixty-day
period of limitations provided by Tennessee Code Annotated section 27-9-102 was jurisdictional in
its effect, and that failure of Appellants to file their Petition for Writ of Certiorari within sixty days
after the Board’s action deprived the court of subject matter jurisdiction.

        On appeal, this Court held:

        The enabling statute which authorizes counties to set up boards to hear zoning
        matters does not set forth any requirements regarding notice for hearings of this type.
        See Tenn.Code Ann. §§ 13-7-101 to 13-7-117. The statute empowers the board to
        develop such rules as are necessary for it to carry out its duties. Id. The defendant
        Board’s rules regarding notice require different types of notice depending upon the
        type of relief that is requested. If the request is an appeal from a decision of the
        Building Inspector, then the rules require that written notice be mailed to “parties of
        interest” at least five days prior to the hearing. However, if the request is for a
        special exemption for a use permissible on appeal, then the notice required is
        publication in the daily paper of general circulation in Wilson County.

        In the form which Ms. Hand filled out, she checked she was appealing from a
        decision of the building inspector, but there is nothing in the record to indicate that
        the Building Inspector denied a building permit. Attached to the form executed by
        Ms. Hand, is a typewritten letter signed by Ms. Hand which asks that she be granted
        “use on appeal” to build a concrete plant. Since there is nothing in the record to
        show that a building permit was sought and denied, there is no support for
        petitioners’ argument that this should be treated as an appeal from a decision of the
        Building Inspector which requires that written notice be mailed to all parties of
        interest.

        The Board was required under its rules to publish a notice of the time and place of
        the meeting in a daily paper of general circulation in Wilson County, and the notice
        which was published cited the time and place of the Board’s meeting and then gave
        a list of requests which would be presented, including “Priscilla Hand, use located
        on Beckwith Road/I40.” The Board met on April 25th and approved Ms. Hand’s
        request. The Minutes reflect that two adjoining property owners appeared in
        opposition to the request, and the record further shows that B & H applied for a
        building permit for the plant on October 16, 1997, which was granted.


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        The sixty day statute of limitations contained in Tenn.Code Ann. § 27-9-101 is
        jurisdictional, and the failure to file a Petition for Writ of Certiorari within sixty days
        of the Board’s decision results in said decision becoming final, such that the trial
        court and consequently this Court are without the jurisdiction to review it. Thandiwe
        v. Traughber, 909 S.W.2d 802 (Tenn.Ct.App. 1994); Turner v. Tennessee Board of
        Paroles, 993 S.W.2d 78 (Tenn.Ct.App. 1999).

Kielbasa v. Wilson Co. Bd. of Zoning Appeals, et al., 2000 WL 564367, * 1-2 (Tn. Ct. App. May 5,
2000) (footnotes omitted).

        Appellants filed the present Complaint on August 1, 2001, in the Circuit Court for Wilson
County, Tennessee, under Tennessee Code Annotated section 29-14-103, essentially seeking a
“declaratory judgment” that the actions taken by the Wilson County Board of Zoning Appeals were
invalid under the Wilson County Zoning Ordinance. The Complaint named B & H Rentals, LLC,
Horizon Concrete, Inc. and Wilson County as defendants to the action. All defendants moved to
dismiss on the basis of the expiration of the statute of limitations provided by Tennessee Code
Annotated section 27-9-101.

       The decisive question on appeal is not whether a petition for writ of certiorari and a
complaint for declaratory judgment asserting the same facts provide alternative remedies, but rather
whether or not the relief sought in the declaratory judgment action is the same relief that was
available on appeal from the denial of the writ of certiorari.

        Clearly, the relief is the same. In the Petition for Writ of Certiorari, Appellants asserted that
the decision of the Board of Zoning Appeals was illegal, arbitrary and capricious, and exceeded its
jurisdiction because of deficiencies in the Notice of Hearing; that “use of a concrete plant on
property zoned I-1 was improper;” the decision of the Board of Zoning Appeals is not supported by
material evidence; the action of the Board of Zoning Appeals violated the zoning ordinance;
Beckwith Road was not a “major road” within the meaning of the zoning ordinance, and the action
of the Board of Zoning Appeals violated a regulation requiring buffering and setback requirements
as to adjacent property.

       The Complaint for Declaratory Judgment seeks essentially the same relief. As it relates to
the expiration of the statute of limitations, the Tennessee Supreme Court held in Dehoff v. Attorney
General, 564 S.W.2d 361 (Tenn. 1978):

                Limitations statutes do not apply to declaratory judgments suits, as such,
        because a declaratory judgment action is a mere procedural device by which various
        types of substantive claims may be asserted. Luckenbach Steamship Co. v. United
        States, 312 F.2d 545 (2d Cir. 1963). Accordingly, it is necessary to ascertain the
        nature of the substantive claims sought to be asserted in a declaratory judgment
        action in order to determine the appropriate statute of limitations. And, if a special
        statute of limitations applies to a special statutory proceeding, such as an election


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       contest, it will be applied when a declaratory judgment action is employed to achieve
       the same result as the special proceeding. Finlayson v. West Bloomfield Township
       320 Mich. 350, 31 N.W.2d 80 (1948); Campbell v. Nassau County, 273 App.Div.
       785, 75 N.Y. S.2d 482 (1947); 22 Am.Jur.2d Declaratory Judgments § 78 (1965).

               Accordingly, in the case at bar, it is clear that insofar as the plaintiffs seek to
       contest the election of May 2, 1974, the applicable period of limitations is the ten
       days period prescribed by T.C.A., § 2-1705, and since the suit was not filed within
       that ten day period, it is, to that extent, barred as held by the Chancellor.

Dehoff, 564 S.W.2d at 363 (Tenn. 1978).

       A most lucid analysis of this problem is made by the Court of Special Appeals of Maryland.

               There is, moreover, an overarching question and it is one as to which we find
       no guidance in the Maryland case law. What, if any, applicability does the Maryland
       Statute of Limitations even have to a declaratory judgment action? The Statute of
       Limitations directs that a civil action be filed within three years of the date it accrues.
       The accrual of a breach of contract action takes place when the breach occurs. An
       action for declaratory judgment, however, may be brought even before a breach
       occurs. The interface between the provisions is extremely “iffy.”

              The only meaningful academic analysis of this question we have found is a
       Comment entitled, Developments in the Law: Declaratory Judgments, 62
       Harv.L.Rev. 787 (1949):

               The better rule, toward which the cases seem to be moving, is that the
               right to declaratory relief continues until the right to coercive relief,
               as between the parties has itself been extinguished. . . . [R]egardless
               of the time when a right to declaratory relief accrues, the statute
               should begin to run when a coercive cause of action arises, and the
               statutory period should expire on the coercive and the declaratory
               causes of action simultaneously. This result would not contravene
               the statute’s policy of preventing unfair surprise and presentation of
               stale claims. The possibility of declaratory relief cannot be said to
               subject the party to undue uncertainty so long as coercive relief is or
               will be available; the evidence of a right cannot be deemed stale so
               long as that right may yet be transgressed in such a way as to entitle
               either party to coercive relief. And indeed if the uncertainty is
               burdensome, the aggrieved party may himself seek a declaration and
               eliminate his doubt.




                                                  -4-
               The case law throughout the country on this admittedly esoteric subject is
       extremely skimpy. One of the two meaningful analyses we have found is Western
       Cas. & Sur. Co. v. Evans, 130 Ariz. 333, 636 P.2d 111 (1981). The first observation
       of the Court of Appeals of Arizona, 636 P.2d at 113, is very true:

                       We first note that the question of whether and when statutes
               of limitations are applicable to declaratory relief actions is a less than
               clear area of the law.

       The Court of Appeals went on to hold that the fact that a sufficient controversy
       existed to permit a request for declaratory judgment does not itself trigger the Statute
       of Limitations:

               [T]he fact that either party could have sought a declaration regarding
               coverage as of the filing of the reservation of right does not mean that
               the action accrued at that item for statute of limitations purposes. For
               an action to accrue for limitation purposes, some event in the nature
               of a breach of contract must have occurred.

       636 P.2d at 114.

              The most incisive analysis of the problem was undoubtedly that made by the
       Supreme Court of California in Maguire v. Hibernia Savings & Loan Soc., 23 Cal.2d
       719, 146 P.2d 673, 681 (1944):

               We are of the opinion that the period of limitations applicable to
               ordinary actions at law and suits in equity should be applied in like
               manner to actions for declaratory relief. Thus, if declaratory relief is
               sought with reference to an obligation which has been breached and
               the right to commence an action for “coercive” relief upon the cause
               of action arising therefrom is barred by the statute, the right to
               declaratory relief is likewise barred.

               ...

Commercial Union v. Porter Hayden, 698 A.2d 1167, 1192-93 (Md. App. 1997).

        As the United States Sixth Circuit Court of Appeals has observed: “Because a declaratory
judgment action is a procedural device used to vindicate substantive rights, it is time barred only if
relief on the direct claim would also be barred. A contrary rule would allow the plaintiff to make
a mockery of the statute of limitations by the simple expediency of creative labeling.” International
Association of Machinists and Aerospace Workers v. Tennessee Valley Authority, 108 F.3d 658, 668
(1997).


                                                  -5-
        The triggering event in the case bar, both as to the Petition for Writ of Certiorari and the
Complaint for Declaratory Judgment, is the action of the Wilson County Board of Zoning Appeals
of July 25, 1997 in granting the application of Ms. Hand to build a concrete plant. The coercive
claim to relief from this action lay in an action seeking a Petition for Writ of Certiorari pursuant to
Tennessee Code Annotated section 27-9-101. The statute of limitations applicable to such petition
was sixty days from and after the action of the Board of Zoning Appeals of July 25, 1997. Petition
for Writ of Certiorari was not filed until April 8, 1998. The statute of limitations on the declaratory
judgment complaint based upon the same facts and seeking the same relief is likewise barred by
Tennessee Code Annotated section 27-9-102.

        The trial court properly dismissed the declaratory judgment action as barred by the statute
of limitations and that action is affirmed.

       Costs of the cause are assessed to Appellants.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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