                 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



                                               2
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.


                                                  3
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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