                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs January 31, 2003

              DWIGHT JAMES v. STATE OF TENNESSEE, ET AL.

                   Appeal from the Chancery Court for Davidson County
                     No. 02-1143-III   Ellen Hobbs Lyle, Chancellor



                 No. M2002-01557-COA-R3-CV - Filed September 16, 2003


This appeal involves Dwight James’ unsuccessful attempt to qualify as a candidate for Hickman
County Road Superintendent and be placed on the August, 2002, election ballot. The trial court
granted the Tennessee Highway Officials Certification Board’s summary judgment motion, finding
that the Board had not acted arbitrarily, capriciously or illegally in not certifying Mr. James as
qualified to run for the office of County Road Superintendent. We have determined that the appeal
is moot.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                 Vacated and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which, WILLIAM C. KOCH , JR. and,
WILLIAM B. CAIN , JJ., joined.

Kenneth K. Crites, Centerville, Tennessee, for the appellant, Dwight James.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M.
Kleinfelter, Senior Counsel, for the appellees, State of Tennessee, Department of State, Division of
Election; Tennessee Highway Officials Certification Board and Brook Thompson.
                                                        OPINION

        Dwight James, a resident of Hickman County, sought to be qualified as a candidate for the
office of Road Superintendent for Hickman County in the August, 2002 General election, pursuant
to the provisions of Tenn. Code Ann. § 54-7-104(b)(1)(A). That statute provides as follows:

         . . . in each county of the state, in order to qualify for the office of the chief
         administrative officer of the county or metropolitan government departments which
         build and maintain the roads of the county, a person shall be a graduate of an
         accredited school of engineering, with at least two (2) years’ experience in highway
         construction or maintenance or be licensed to practice engineering in Tennessee; or
         shall have had at least four (4) years’ experience in a supervisory capacity in highway
         construction or maintenance; or a combination of education and experience
         equivalent to either of the above, as evidenced by affidavits filed with the Tennessee
         highway officials certification board. In no event shall the chief administrative
         officer have less than a high school education or a general equivalency diploma
         (GED).1

        In 1997, the Tennessee General Assembly created the Tennessee Highway Officials
Certification Board (“THOCB” or “Board”) and gave that Board the sole authority to determine if
candidates were qualified for both elected and appointed positions as chief administrative officer of
the county or metropolitan government departments which build and maintain the roads of the
county. Tenn. Code Ann. § 54-7-104(a). Prior to the creation of the THOCB, the Coordinator of
Elections for the State of Tennessee had been given the authority to determine the qualifications of
such candidates. One of the first decisions made by the THOCB upon its formation in January,
1998, was that all candidates, regardless of whether they were incumbents and/or had previously
been certified as qualified by the State Coordinator of Elections, would have to be certified as
qualified by the THOCB, and thus, would have to provide the THOCB with the necessary evidence
that they met the minimum statutory qualifications. However, once a candidate was certificated as
qualified by the THOCB, he or she would not need to be recertified by the THOCB in a later
election.

        Tenn. Code Ann. § 54-7-104(a)(2) provides that candidates for this office in counties where
the position is filled by popular election “shall file affidavits and such other evidence as the board
shall require with the board not later than fourteen (14) days prior to the qualifying deadline for
candidates in the election.” The THOCB is then required to review the candidates’ qualifications
and the standards required for each county and certify to the coordinator of elections whether a


         1
          In 1974, the legislature enacted the Tennessee County Uniform Highway Law in order to improve the rural
road system throughout the state. State, by Lockett v. Kn ott, 631 S.W.2d 124,125 (Tenn. 1982). The Act provided
for additional money for rural road work as well a requirement of better management of the program by upgrading
the qualifications for the county ro ad en gineer positio n.



                                                               2
candidate’s qualifications are acceptable prior to the candidate’s name being placed on the ballot.
Without this certification from the THOCB, a candidate cannot qualify to have his or her name
placed on the ballot.

       On January 16, 2002, Mr. James filed an affidavit verifying that he had graduated from
Hickman County High School and that he had in excess of four (4) years experience in the
construction of subdivision roads. This affidavit also stated that Mr. James had “already certified
and ran unsuccessfully twice for this position.”

       On January 17, 2002, the THOCB (through the State Election Coordinator) informed Mr.
James in a letter that due to certain deficiencies in his affidavit, the THOCB was unable to determine
whether he had met the minimum statutory qualifications. Specifically, the THOCB noted the
following deficiencies:

       Your affidavit must set out in specific terms that you have four years’ experience in
       a supervisory capacity in highway construction and maintenance. Please remember
       that the term “supervisory” means having direct oversight or management authority
       over another person. More specifically, it requires that a person have the
       responsibility to oversee and direct the work being performed and the authority to
       determine whether it was performed according to applicable standards.

       Your affidavit must set out the dates and projects which provide that you meet the
       experience requirement. Please be specific in the dates of the operations completed,
       your role in the operation, the number of people you supervised, and the type of work
       done. The commission must be able to identify four specific years in which you meet
       the experience requirements.

        Included with the January 17th letter from the THOCB was an outline of the rules used by
the THOCB in determining eligibility for certification. This outline provided that “[h]ighway
construction entails the construction of roads and/or bridges according to federal, state or local
specifications or have been accepted and/or taken over by a local government” and that highway
maintenance “would include the repair and general upkeep of the roads such as resurfacing the road,
as well as the general upkeep of the shoulder, guardrails or bridges,” but not the replacement of road
signs or clearing of overgrowth or debris from the road or shoulder.

        On January 21, 2002, Mr. James resubmitted his affidavit. In it, he verified that in 1974, he
had spent six months supervising one to five people building the roads in a subdivision being
developed in Centerville, Tennessee, that were subsequently approved by that municipality. He
further verified that from 1984 until the middle of 1989 he supervised one to four people building
roads according to “company standards” in a recreational development in Hickman County. The
affidavit did not indicate whether these roads had ever been accepted or taken over by a local
government.



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         On January 25, 2002, the THOCB met to consider requests for certification from number of
candidates, including Mr. James. After reviewing Mr. James’s original affidavit and supplemental
affidavit, the THOCB decided that it still could not determine if he met the minimum statutory
requirements. Accordingly, the THOCB sent Mr. James a letter on January 28, 2002, informing him
that it needed more information to determine if he met the statutory requirements. Specifically, the
letter stated that:

       [s]ince your experience lies in the building of subdivision roads, the board needs
       detailed information about the types of roads built, whether they were approved by
       a city or county government, who has maintained the roads since their construction,
       etc. “Roads built to company standards” do not provide any basis for qualification
       to the board.

       On February 13, 2002, Mr. James submitted a third affidavit in which he stated that the
subdivision roads built in the recreational development had not been approved by any governmental
body, but instead were for the property owners and their guests, with restricted access. He did state
that company standards were adhered to in the building of these roads and that the roads were
accepted by company representatives.

        The THOCB met again on February 14, 2002, to consider additional requests for certification
from candidates. At that time, based upon the information provided by Mr. James in his three
affidavits, the THOCB determined that his experience in building subdivision roads did not meet the
minimum statutory requirements of four years’ experience in a supervisory capacity in highway
construction or maintenance. As such, the THOCB voted unanimously to deny Mr. James’s request
for certification. On February 19, 2002, the THOCB sent Mr. James a letter informing him of its
denial of certification.

        Almost two months later, on April 16, 2002, Mr. James filed a complaint in Davidson County
Chancery seeking a temporary and permanent injunction against the THOCB and Brook Thompson,
in his capacity as the State Election Coordinator, ordering the THOCB to certify him as a qualified
candidate for Road Superintendent by the May 16, 2002 qualifying deadline and place him on the
ballot for the August 2002 General Election in Hickman County. The complaint alleged that the
THOCB had arbitrarily and capriciously denied him certification as a qualified candidate. With the
Board filing no response, the trial court granted Mr. James’s request for a temporary injunction on
April 26, 2002.

        On May 14, 2002, the Board filed a motion to dismiss and to dissolve the temporary
injunction. Supporting affidavits were filed by both sides and the trial court treated the motion as
one for summary judgment pursuant to Rule 12.03, Tenn. R. Civ. P. The trial court found that
because Mr. James was challenging the quasi-judicial determination of the THOCB, it would treat
the petition as one for common law writ of certiorari with the scope of review limited to the record
and a determination of whether the THOCB’s decision was arbitrary, capricious or in violation of



                                                 4
law. Following a hearing on the motion, the trial court granted the State’s motion for summary
judgment and dissolved the temporary injunction on June 18, 2002.

        On June 28, 2002, Mr. James filed both his Notice of Appeal and a motion requesting an
expedited appeal and an injunction placing him on the August, 2002, election ballot as a candidate
for the office of Road Superintendent for Hickman County. On July 2, 2002, this court directed the
trial court clerk to prepare and file with this court the record on or before July 5, 2002, and that
judgment on expediting consideration of the appeal be reserved pending receipt of the record.

         On July 5, 2002, we denied Mr. James’s request for an expedited appeal and injunctive relief.
We based our ruling on the fact that Mr. James had waited until April 16, 2002, to file his suit in the
trial court, even though the Board had denied his certification almost two months earlier on February
19, 2002; the deadline for printing the ballots was July 2, 2002; and early voting was to begin July12,
2002. We explained that:

                 This court will not grant extraordinary relief if the party requesting such relief
         has failed to take whatever action was reasonably available to prevent or nullify the
         harmful effect of the alleged error. Tenn. R. App. P. 36(a). Based upon the record,
         we decline to expedite this appeal because the appellant’s failure to file his action in
         a timely manner has undermined our ability to grant effective relief.

Counsel for Mr. James filed two separate motions for extensions of time in which to file his brief.
As a result, appellant’s brief was not filed with this court until October 3, 2002, well past the August,
2002, election.

        On appeal, the Board argues that Mr. James’s appeal has been rendered moot by virtue of the
election having occurred.2 We agree that the fact that the election is long since over renders this
appeal moot because it no longer presents a present, live controversy. McCanless v. Klein, 182
Tenn. 631, 637, 188 S.W.2d 745, 747 (1945); County of Shelby v. McWherter, 936 S.W.2d 923, 931
(Tenn. Ct. App.1996); McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App.1994). It no
longer provides a means to grant Mr. James the relief he seeks. Knott v. Stewart County, 185 Tenn.
623, 626, 207 S.W.2d 337, 338-39 (1948); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616
(Tenn. Ct. App.1998); Massengill v. Massengill, 36 Tenn. App. 385, 38889, 255 S.W.2d 1018, 1019
(1952). Determining whether a case or an issue has become moot is a question of law. Charter
Lakeside Behavioral Health Sys. v. Tennessee Health Facilities Comm'n, 2001 WL 72342, at *5;
Orlando Residence, Ltd. v. Nashville Lodging Co., No. M1999-00943-COA-R3-CV, 1999 WL
1040544, at *3 (Tenn. Ct. App. Nov.17, 1999) (No Tenn. R. App. P. 11 application filed). Thus,


         2
          The Board correctly points out that the election has presumably been certified pursuant to Tenn. Code
Ann. § 2-8-101 and been final for quite some time. Moreover, the time for contesting the election to have it declared
void is long since past pursuant to Tenn. Code Ann. § 2-17-105. Finally, the Board notes that Mr. James has made
no allegations in his compla int and there is no proof in the record of any va cancy in the office of Hickma n Co unty
Road Superintend ent, and therefore, there is no basis for a special election.

                                                          5
unless the case fits within one of the recognized exceptions to the mootness doctrine,3 the courts will
ordinarily vacate the judgment and remand the case to the trial court with directions that it be
dismissed. Ford Consumer Fin. Co. v. Clay, 984 S.W.2d at 617; McIntyre v. Traughber, 884
S.W.2d at 138. Here, we find no reason to except this matter from application of the mootness
doctrine.

                                                  CONCLUSION

        In accordance with our finding that this appeal became moot as a result of the August, 2002,
election being long since past, we vacate the June 18, 2002 order of the trial court and remand the
case with directions that Mr. James’s petition be dismissed on the grounds of mootness. We tax the
costs of this appeal to Dwight James for which execution, if necessary, may issue.



                                                                 ___________________________________
                                                                 PATRICIA J. COTTRELL, JUDGE




         3
           Courts have reco gnized severa l excep tions to the mo otness doctrine. Exercising their discretion, McIntyre
v. Traug hber, 884 S.W .2d at 137 , Dockery v. Dockery, 559 S.W .2d 952, 954 (Tenn. Ct. App.197 7), they have
declined to dismiss cases when the issue involves important public interests, when the issue is important to the
adm inistration of justice, and when an issue is cap able o f repetition but will evade judicial review. State ex rel.
Anglin v. Mitch ell, 596 S.W .2d 7 79, 7 82 (Tenn.19 80); New Rivieria Arts Theatre v. State, 219 Tenn. 652, 658, 412
S.W .2d 8 90, 8 93 (196 7); LaR ouc he v. C rowell, 709 S.W .2d 585, 587 -88 (Tenn. Ct. App.198 5).

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