        IN THE COURT OF APPEALS OF TENNESSEE
                                FILED
                                December 10, 1999

                                Cecil Crowson, Jr.
                               Appellate Court Clerk
                               AT NASHVILLE


HAROLD DAVIS,                  )
                                         )
      Plaintiff/Appellant,     )
                                         )
VS.                                      )
                                         )
                                         )   Davidson Chancery
TENNESSEE DEPARTMENT OF                  )   No. 96-515-III
EMPLOYMENT SECURITY,                     )
TENNESSEE CIVIL SERVICE                  )
COMMISSION, and                          )   Appeal No.
MARGARET CULPEPPER, in her               )   M1996-00021-COA-R3-CV
official capacity as Commissioner of the )
Tennessee Department of Employment )
Security,                                )
                                         )
       Defendants/Appellees.             )


                    APPEAL FROM THE CHANCERY COURT
                         FOR DAVIDSON COUNTY
                        AT NASHVILLE, TENNESSEE

           THE HONORABLE ROBERT S. BRANDT, CHANCELLOR


For the Plaintiff/Appellant:                      For the Defendants/Appellees:

Larry D. Woods                                    Paul G. Summers
Nashville, Tennessee                              Attorney General and Reporter
                                                  James C. Floyd
                                                  Assistant Attorney General



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                      AFFIRMED AND REMANDED


                                                  WILLIAM C. KOCH, JR., JUDGE


                                    OPINION



       This appeal involves the efforts of a state employee to obtain judicial review
of a written reprimand for repeatedly filing grievances concerning non-grievable
matters. After the Civil Service Commission declined to consider his grievance
concerning the written reprimand, the employee filed suit in the Chancery Court for
Davidson County seeking both judicial review of the Commission’s decision under
the Uniform Administrative Procedures Act and injunctive and other equitable relief
against his employer under the federal civil rights laws. The trial court dismissed the
civil rights claims and later dismissed the employee’s petition for review because it
was not timely filed. On this appeal, the employee takes issue with the dismissal of
his petition for review and with the trial court’s refusal to reinstate his civil rights
claim following the dismissal of his petition for review. We have determined that the
trial court properly dismissed both claims and, therefore, affirm the trial court.


                                             I.


       Harold Davis is a career employee of the Tennessee Department of
Employment Security. In September 1994, he filed a grievance with the Department
complaining that he had been passed over for promotions because of his race.
Eight months later, in May 1995, Mr. Davis filed a second grievance alleging


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disparate working conditions and the denial of promotions because of his race. The
Department officials informed him that these sorts of complaints were not grievable
matters. Not to be deterred, Mr. Davis filed a third grievance on similar grounds in
September 1995. The Department informed him again that he was asserting
non-grievable matters.




      Thereafter, on September 15, 1995, the Department sent Mr. Davis a written
reprimand 1 stating that he had failed to maintain satisfactory and harmonious
working relations with his supervisors and fellow employees 2 and that his
repeated grievances pertaining to the assessment of the performance of the
employees within the federal and data entry units interfered with
management’s ability to manage. 3 Believing that the written reprimand
wrongfully retaliated against him for filing legitimate grievances, Mr. Davis
requested Margaret Culpepper, the Commissioner of the Department of
Employment Security, to review the reprimand. 4 Following a review
conducted by her designee, Commissioner Culpepper concurred in the
written reprimand and notified Mr. Davis of her decision in a letter dated
October 31, 1995.


      Mr. Davis equated Commissioner Culpepper’s action as an adverse
Step IV grievance decision and, on November 21, 1995, requested a Step V
grievance hearing before an administrative law judge. On December 13,
1995, the Civil Service Commission’s staff informed Mr. Davis that the
Commission lacked authority to consider his grievance because Tenn. Comp.
R. & Regs. r. 1120-11-.08(5) (1994) expressly provides that written
reprimands are not grievable beyond Step IV. Thereafter, Mr. Davis
retained counsel who also requested a Step V grievance hearing before an
administrative law judge. On January 29, 1996, the Commission again


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informed Mr. Davis that his situation involved non-grievable matters because
all his complaints related to the internal management of the Department.


      Mr. Davis filed suit against the Department and Commissioner
Culpepper in the Chancery Court for Davidson County on February 15,
1996. In addition to seeking judicial review of the Civil Service Commission’
s decision under the Uniform Administrative Procedures Act, Mr. Davis also
sought injunctive and other equitable relief against Commissioner Culpepper
under the federal civil rights laws. At the outset, the Department and
Commissioner Culpepper moved to dismiss Mr. Davis’s federal civil rights
claims based on the precedents against pursuing appellate remedies and
original claims in the same proceeding. 5 Thereafter, the trial court directed
Mr. Davis to elect which remedy he wished to pursue or face the dismissal of
his federal civil rights claim. When Mr. Davis refused to elect a remedy, the
trial court dismissed his civil rights claim without prejudice.


      The trial court took up Mr. Davis’s petition for review under Tenn.
Code Ann. § 4-5-322 (1998) in August 1996. During the hearing, the
Department and Commissioner Culpepper moved to dismiss Mr. Davis’s
petition because it was not timely filed. The trial court granted the motion
and dismissed Mr. Davis’s petition. Later, the trial court denied Mr. Davis’s
motion to alter or amend it’s order of dismissal to include additional findings
of fact and conclusions of law.


                                           II.
      The determinative issue in this case is the timeliness of Mr. Davis’s petition
for review. The Uniform Administrative Procedures Act requires persons aggrieved
by a final decision of an administrative agency to file their petition for review within
sixty days after the entry of the agency’s final order. See Tenn. Code Ann. §
4-5-322(b)(1). A party’s failure to file a petition for review on or before the


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statutory deadline prevents the courts from exercising their jurisdiction to review the
agency’s decision. See Schering-Plough Healthcare Prods., Inc. v. State Bd. of
Equalization, 999 S.W.2d 773, 776 (Tenn. 1999); Bishop v. Tennessee Dep’t of
Correction, 896 S.W.2d 557, 558 (Tenn. Ct. App. 1994).


       We must first determine when the time for filing Mr. Davis’s petition began to
run before we can determine whether the sixty-day filing period had passed by the
time Mr. Davis filed his petition for review. Both parties agree that the Civil Service
Commission’s December 13, 1995 letter is the order Mr. Davis seeks the courts to
review. The Department and Commissioner Culpepper argue that the time for filing
the petition for review began to run on that date. Mr. Davis, on the other hand,
insists that the time for filing his petition for review did not begin to run until
December 23, 1995 because the Commission’s December 13, 1995 letter was an “
initial order” that did not become final until ten days after its entry. 6 Mr. Davis is
mistaken.


       The Uniform Administrative Procedures Act affords state agencies two
procedures for deciding contested cases. First, the agency, board, or
commission may hear and decide the case itself. See Tenn. Code Ann. §
4-5-314(a) (1998). Second, the agency, board, or commission may decide to
request an administrative law judge or hearing officer to conduct the hearing
and then render an “initial order” that may, in turn, be affirmed or modified
by the agency, board, or commission on its own motion or at the request of
one of the parties. See Tenn. Code Ann. § 4-5-314(b). These initial orders
cannot become final until ten days after they are entered. See Tenn. Code
Ann. § 4-5-318(f)(3) (1998).


       Mr. Davis’s argument that the December 13, 1995 letter is an initial
order loses sight of the fact that this letter represents an order by the
Commission, not an order by an administrative law judge or a hearing



                                                                                          Page 5
officer. In the letter, the Civil Service Commission’s staff, 7 acting for the
Commission, informed Mr. Davis that he was not entitled to a Step V
grievance with regard to the written reprimand and stated unequivocally that
no further sort of administrative review was available to him. Because this
decision, which was fully consistent with the applicable civil service
regulations, 8 was a final agency order, it became final when it was entered on
December 13, 1995. Accordingly, the time for filing a petition for review
began to run on that date. Mr. Davis’s petition for review, filed on February
15, 1996, was thus three days late.




                                           III.


      Sensing the futility of his efforts to cast the Civil Service Commission’s
December 13, 1995 letter as an interim order, Mr. Davis offers two other arguments
why the time for filing his petition for review should not be measured from
December 13, 1995. First, he argues that the time for filing his petition for review
should not begin to run until he actually received the Commission’s December 13,
1995 letter. Second, he argues that the running of the filing period should be tolled
because he requested the Commission to rehear the decision in its December 13,
1995 letter. Neither argument has merit.


      Mr. Davis responded to the motion to dismiss his petition for review by
asserting that he had “excusable grounds” for filing his petition beyond the
sixty-day period prescribed by Tenn. Code Ann. § 4-5-322(b)(1) because he did
not receive the Commission’s December 13, 1995 letter until December 30, 1995.
This argument has no merit. As we have repeatedly held, the time for seeking
judicial review of an agency’s decision runs from the date of the entry of the agency’



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s final order, not from a party’s receipt of such order. See Cheairs v. Lawson, 815
S.W.2d 533, 534 (Tenn. Ct. App. 1991); Houseal v. Roberts, 709 S.W.2d 580, 581
(Tenn. Ct. App. 1984). While some delays in receiving notice of a final order could
theoretically be so long that they amounted to no notice or legally insufficient notice
to a party, such was not the case here. On the facts of this case, Mr. Davis had
ample time – six weeks – to decide whether he wished to seek judicial review of the
Commission’s decision that he could not press his grievance beyond the fourth step.


       Mr. Davis also argues that he was entitled to additional time for filing his
petition for review because he requested the Commission to reconsider the
conclusion in its December 13, 1995 letter. Again, we find no merit to this
argument. Tenn. Code Ann. § 4-5-322(b)(2) provides that the time allotted for filing
a petition for review is not extended for any period simply by requesting an agency
to reconsider a final order. 9
                                            IV.


       Mr. Davis’s final argument involves his federal civil rights claim. He points
out that the trial court dismissed this claim only because it had been joined
improperly with his petition to review the Civil Service Commission’s decision. If
we affirm the dismissal of his petition for review, he insists that we should reinstate
his federal civil rights claim because there will no longer be an impermissible joinder
of appellate and original remedies. We decline to reinstate Mr. Davis’s federal civil
rights action because he failed to request this relief from the trial court.


       Mr. Davis does not take issue with this court’s decision that it is
impermissible to join an appeal from an action of an administrative agency with an
original action. 10 Nor does he take issue with the order directing him to elect
which of these remedies he desired to pursue or with the trial court’s making
the decision for him after he declined to make the election himself. Rather,
in hindsight, he requests this court to reinstate his federal civil rights claim
now that his appellate remedy has been dismissed.


                                                                                          Page 7
      The doctrine of election of remedies prevents plaintiffs from seeking
inconsistent remedies. See Wimley v. Rudolph , 931 S.W.2d 513, 515 (Tenn.
1996). Its purpose is to prevent double recoveries. See Forbes v. Wilson
County Emergency Dist. 911 Bd. , 966 S.W.2d 417, 421 (Tenn. 1998); Purcell
Enters., Inc. v. State , 631 S.W.2d 401, 409 (Tenn. Ct. App. 1981). However,
as laudable as its purpose is, the doctrine of election of remedies is a harsh
one that the courts do not favor. See Lund v. Albrecht , 936 F.2d 459, 464
(9th Cir. 1991); Beyer v. Easterling , 738 So. 2d 221, 226-27 (Miss. 1999);
Ripple v. Wold , 549 N.W.2d 673, 674 (S.D. 1996); 18 Charles A. Wright, et
al., Federal Practice and Procedure § 4476, at 773 (1981).


      The doctrine requires a plaintiff who is seeking inconsistent remedies
to choose one of the remedies. Once made, this choice becomes irrevocable,
and the plaintiff is thereafter estopped from pursuing the remedy not chosen.
See Barnes v. Walker , 191 Tenn. 364, 368, 234 S.W.2d 648, 650 (1950);
Allied Sound, Inc. v. Neely , 909 S.W.2d 815, 822 (Tenn. Ct. App. 1995);
Hayes v. Civil Serv. Comm’n , 907 S.W.2d 826, 828 (Tenn. Ct. App. 1995).
However, with the advent of the liberalized pleading rules, most courts will
not invoke the doctrine unless (1) the plaintiff has prosecuted the chosen
remedy either to final judgment or a determinative conclusion, see Gottschalk
v. Simpson , 422 N.W.2d 181, 185 (Iowa 1988); Christensen v. Eggen , 577
N.W.2d 221, 224 (Minn. 1998); Alexander v. Link’s Landing, Inc. , 814
S.W.2d 614, 620-21 (Mo. Ct. App. 1991); Family Bank of Commerce v.
Nelson , 697 P.2d 216, 218 (Or. Ct. App. 1985), or (2) the defendant has
materially changed its position based on the plaintiff’s choice of remedy. See
Ripple v. Wold , 549 N.W.2d at 675-76. Thus, most courts permit a party to
change to an alternative remedy until judgment is entered or until the
doctrines of res judicata or collateral estoppel apply. See Smith v. Golden


                                                                                 Page 8
Eagle Ins. Co. , 82 Cal. Rptr. 2d 300, 303 (Ct. App. 1999).


      Although the decisions are not without some doubt, the Tennessee
Supreme Court appears to have recognized the controlling significance of a
final judgment in an election of remedies analysis. The Court has held that
the doctrine applies once the plaintiff obtains a judgment on one of its
inconsistent claims, even if it is later unable to satisfy the judgment. See
Phillips v. Rooker , 134 Tenn. 457, 465-66, 184 S.W. 12, 14 (1916). However,
the Court has also noted that the doctrine does not apply when the plaintiff
elects to pursue a remedy that is legally or factually unavailable. See
Montlake Coal Co. v. Chattanooga Co. , 137 Tenn. 440, 444-45, 193 S.W.
1057, 1058 (1917); Grizzard v. Fite , 137 Tenn. 103, 108, 191 S.W. 969, 970
(1917), rev’d on other grounds , Barnes v. Walker , 191 Tenn. 364, 372, 234
S.W.2d 648, 651 (1950). 11


      Mr. Davis did not request the trial court to reinstate his federal civil
rights claim. Had this request been included in his Tenn. R. Civ. P. 59.04
motion to alter or amend the judgment, we would have held, without
hesitation, that the trial court erred by denying this request. However, Mr.
Davis did not bring this question to the trial court’s attention and did not
request the relief he is seeking now from this court. A claim for relief or
issue not asserted or raised at trial cannot be asserted or raised for the first
time on appeal. See Simpson v. Frontier Community Credit Union , 810
S.W.2d 147, 153 (Tenn. 1991); State Dep’t of Human Servs. v. Defriece , 937
S.W.2d 954, 960 (Tenn. Ct. App. 1996). Mr. Davis is not entitled to the relief
he now seeks because he failed to seek the same relief in the trial court. See
Tenn. R. App. P. 36(a). 12


                                       V.



                                                                                   Page 9
      We affirm the dismissal of Mr. Davis’s petition for review and his federal civil
rights claim and remand the case to the trial court for further proceedings consistent
with this opinion. We tax the costs of this appeal to Harold Davis and his surety for
which execution, if necessary, may issue.



                                              _____________________________
                                              WILLIAM C. KOCH, JR., JUDGE


CONCUR:


_________________________________
SAMUEL L. LEWIS, JUDGE


_________________________________
BEN H. CANTRELL, JUDGE




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