                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  February 2, 2010 Session

     CHARLES D. STECHEBAR V. DEERE & COMPANY & JOHN DOE

                    Appeal from the Circuit Court for Knox County
                     No. 3-57-09   Wheeler A. Rosenbalm, Judge




                No. E2009-01514-COA-R3-CV - FILED JUNE 29, 2010


This case concerns a complaint for review by writ of certiorari and supersedeas. The initial
action was a personal injury suit, arising from an automobile accident in which Plaintiff
Charles D. Stechebar’s vehicle was allegedly hit by a tractor-trailer owned by Defendant
Deere and Company (“Deere”) and driven by Defendant John Doe, an unidentified employee
of Deere. The personal injury suit was dismissed with prejudice in the general sessions court
when the plaintiff failed to appear for the initial trial date. The record reflects that twelve
days before the initial trial date, the plaintiff had filed an amended civil summons and
obtained a new trial date. Fifty days after the dismissal, the plaintiff filed an appeal to the
circuit court, asserting that he had not been notified of the dismissal in time to file an appeal
within the ten-day window required by Tenn. Code Ann. § 27-5-108(a)(1). The circuit court
dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review
by statutory writ of certiorari and supersedeas. The circuit court granted the defendant’s
motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which
review could be granted. We hold that the plaintiff stated a claim for relief under statutory
writ of certiorari and supersedeas. The trial court’s judgment is reversed and the case
remanded to the trial court for further proceedings.

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

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J. and D. M ICHAEL S WINEY, J. joined.

Timothy L. Baldridge, Knoxville, Tennessee, for the appellant, Charles D. Stechebar.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Deere &Company.
                                                 OPINION

                                           I. BACKGROUND

        The accident giving rise to this action occurred on February 15, 2007, in Knoxville.
Plaintiff Charles D. Stechebar alleges that he was driving in a westerly direction on Interstate
40 when his vehicle was struck by a John Deere tractor trailer, owned by Defendant Deere
and Company (“Deere”) and driven by an unidentified employee of Deere, John Doe.1 Mr.
Stechebar brought an action in General Sessions Court for compensatory and punitive
damages, claiming property damage and personal injuries. The General Sessions Court
dismissed Mr. Stechebar’s complaint with prejudice when Mr. Stechebar failed to appear for
the initially scheduled trial date of April 30, 2008. Seeking relief, Mr. Stechebar filed an
appeal in Circuit Court (“trial court”) fifty days after the dismissal. The trial court dismissed
the appeal for lack of jurisdiction because it was filed outside the ten-day window required
under Tenn. Code Ann. § 27-5-108(a)(1).

       The following procedural events are a matter of record:

       February 14, 2008:
       Mr. Stechebar filed a Civil Summons with the General Sessions Court and
       obtained a court date of April 30, 2008.

       February 20, 2008:
       Process of the Civil Summons was served upon Deere.

       April 18, 2008:
       Mr. Stechebar filed an Amended Civil Summons, attaching medical records
       and bills, and obtained a court date of August 18, 2008.

       April 30, 2008:
       Deere appeared in General Sessions Court, and Mr. Stechebar did not appear.
       The court dismissed Mr. Stechebar’s complaint with prejudice.

       May 14, 2008:
       Process of the Amended Civil Summons was served upon Deere.

       June 19, 2008:
       Mr. Stechebar filed an appeal to the Circuit Court.

       1
           John Doe is not a party to this appeal.

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       June 25, 2008:
       The Circuit Court dismissed Mr. Stechebar’s appeal for lack of jurisdiction.


        Mr. Stechebar’s counsel asserts that after filing the Amended Civil Complaint, his
paralegal called the General Sessions Clerk’s Office to confirm that the case would be taken
off the docket for April 30, 2008, and was told that the case was no longer on the docket for
that day. Mr. Stechebar also claims that he relied on the General Sessions Clerk’s Office to
serve Deere because he did not know who the counsel representing Deere would be or where
to reach said counsel.

        Mr. Stechebar did not receive notification of the dismissal. He learned of it on June
9, 2008, and filed an appeal with the trial court ten days later. Mr. Stechebar further asserts
that he was unaware that the trial court had dismissed his appeal for lack of jurisdiction until
he asked the court about the appeal’s status on December 3, 2008, over five months after it
had been dismissed.

        Mr. Stechebar filed a Complaint for Review by Certiorari and Supersedeas with the
trial court. The court issued a writ of certiorari in lieu of appeal on February 20, 2009.
Deere moved to dismiss the writ. The trial court granted the dismissal on June 23, 2009,
holding that Mr. Stechebar failed to state a claim on which relief could be granted for the
extraordinary relief of a writ of certiorari and supersedeas. As noted in the transcript of the
proceedings, the trial court concluded:

       I must most respectfully conclude that this attempt to shift the blame to the
       General Sessions Court and the clerical staff of that court is misplaced. And
       frankly the attempt to change this trial date that affected a party or parties in
       this lawsuit unilaterally is what created the problem here, and so I cannot
       construe the complaint as amended as sufficient to state a claim upon which
       relief can be granted for the extraordinary writ of certiorari supersedeas, and
       accordingly the motion to dismiss the complaint as amended is respectfully
       granted.

This appeal followed.


                                          II. ISSUE

       Mr. Stechebar raises a sole issue on appeal, which we restate as follows:



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       Whether the trial court erred in dismissing Mr. Stechebar’s Complaint for
       Review by Certiorari and Supersedeas on the ground that it failed to state a
       complaint for which relief could be granted under Tennessee Rule of Civil
       Procedure 12.02.

                              III. STANDARD OF REVIEW

       A writ of certiorari and supersedeas is not granted as a matter of right, and the
decision to issue such a writ rests within the discretion of the trial court. Ancro Fin. Co. v.
Johnson, No. W2000-02709-COA-R3-CV, 2001 WL 1298913, at *2 (Tenn. Ct. App. W.S.,
Oct. 23, 2001) (citing Boyce v. Williams, 389 S.W.2d 272, 277 (Tenn. 1965)); see also
Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999). In this case, the trial
court had issued the writ of certiorari and supersedeas but then granted Deere’s motion to
dismiss the writ. A motion to dismiss brought under Tenn. R. Civ. Pro. 12.02(6) “test[s] the
sufficiency of the complaint, not the strength of the plaintiff’s evidence.” Willis v. Tenn.
Dep’t of Corr., 113 S.W.3d 706, 710 (Tenn. 2003). This court will accept the factual
allegations contained in the complaint for review by certiorari and supersedeas as true and
review the trial court’s conclusions of law de novo with no presumption of correctness. Id.


                                      IV. ANALYSIS

        Two actions for review by writ of certiorari and supersedeas are available in
Tennessee: one under the common law and one under Tenn. Code Ann. § 27-8-101 et seq.
The scope of review under the common law writ of certiorari and supersedeas is “limited to
a determination of whether the inferior tribunal or board which exercised its judicial
functions has exceeded its jurisdiction or acted illegally, fraudulently or arbitrarily.” Yokley
v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981); see also Spunt v. Fowinkle, 572 S.W.2d
259, 265 (Tenn. Ct. App. 1978). The scope of review for the statutory writ of certiorari
further lies:

       (1)    On suggestion of diminution;
       (2)    Where no appeal is given;
       (3)    As a substitute for appeal;
       (4)    Instead of audita querela; or
       (5)    Instead of writ of error.

Tenn. Code Ann. § 27-8-102 (2000).




                                              -4-
        Mr. Stechebar asserts in his appellate brief that both the common law writ of certiorari
and the statutory writ of certiorari are appropriate vehicles for relief in this case. Mr.
Stechebar alleges procedural errors on the part of the general sessions court, stating that
“essential forms of law have not been observed and followed.” Accepting Mr. Stechebar’s
factual allegations as true for the purpose of review, we find no allegations that would rise
to the level needed to show that the lower court acted in the illegal, fraudulent, or arbitrary
manner that would be required for review under a common law writ of certiorari. See, e.g.,
Willis, 113 S.W.3d at 714 (holding that petitioner/prisoner had stated a claim upon which
relief could be granted under common law writ of certiorari when the claim alleged that a
prison disciplinary board’s actions “deviated substantially” from its own stated procedures);
Yokley, 632 S.W.2d at 126-27 (noting “certain exceptions” to the limited review function of
the common law writ of certiorari in criminal cases that applied “where personal freedom
was at stake--not in a civil suit for damages”).

        However, under the statutory scheme, Mr. Stechebar states clearly that he is seeking
a writ of certiorari in lieu of appeal. See Tenn. Code Ann. § 27-8-102(3). A petitioner may
resort to a writ of certiorari as a substitute for appeal only when it can be shown that the
appeal was defeated:

       1.     By the oppressive or erroneous act of the court or justice.
       2.     By the willful or negligent act of the clerk.
       3.     By the contrivance or procurement of the adverse party.
       4.     By inevitable accident.
       5.     By the blameless misfortune of the petitioner.

Gen. Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489, 490-91 (Tenn. Ct. App. 1984)
(quoting Uselton v. Price, 292 S.W.2d 788 (Tenn. Ct. App. 1956)). Mr. Stechebar contends
that his claim was dismissed, and he ultimately did not know of the need to file a timely
appeal, because the general sessions court “clerk was negligent in her failure to advise the
Judge of the Amended Civil Summons and new trial date, and that negligence allowed
Defendant to proceed with a dismissal of the case.” Mr. Stechebar also argues that what “has
transpired can be considered nothing short of an inevitable accident” and that the petitioner
is the victim of “blameless misfortune.”

        Deere cites several cases in which a statutory writ for certiorari has been dismissed
because the petitioner’s neglect or lack of diligence helped to cause the situation giving rise
to the petition. As this court noted in Dennis, “[n]eglect on the part of the petitioner is not
a ground to grant the writs of certiorari and supersedeas.” 675 S.W.2d at 491. The petitioner
in Dennis failed to appear for a court date “through a mutual mistake” between attorney and
client in which each thought the other would appear to ask for a continuance. Id. at 490.

                                              -5-
When the court entered a judgment against the petitioner in Dennis, the petitioner also failed
to file an appeal and instead filed only the petition for writ of certiorari. Id. Similarly, in
Ancro Fin., this court held that there were no grounds for granting certiorari in lieu of appeal
when the petitioner Dyncorp had misunderstood a properly served scire facias, failed to
appear at the subsequent hearing, and failed to appeal the subsequent judgment against it.
2001 WL 1298913, at *2.

        In the case at bar, Mr. Stechebar relied on a new trial date obtained when he filed the
Amended Civil Complaint and a follow-up phone call to the clerk’s office to assure that his
case was removed from the docket on the original court date of April 30, 2008. Mr.
Stechebar also relied on the clerk’s office to give notice to Deere of a new court date.
Ideally, Mr. Stechebar would also have researched the identity of Deere’s counsel, perfected
notice to Deere, and made certain that a hearing had not occurred on April 30 before the ten-
day window for appeal under Tenn. Code Ann. § 27-5-108(a)(1) had closed. However, Mr.
Stechebar did not commit the type of overt error or neglect represented by the petitioners in
Dennis and Ancro. The Amended Civil Summons, with its reset date, was a part of the
general sessions court file when the original complaint was dismissed on April 30, 2008. The
fact that the court missed this in the file appears to be the result of an inadvertent mistake.
It would be an inequitable result for Mr. Stechebar to lose his day in court due to such a
mistake. See Willis, 113 S.W.3d at 712 (noting with approval the grant of a common law
writ of certiorari to remedy “proceedings that effectively deny a party his or her day in
court”) (citing State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980)).


                                     V. CONCLUSION

       Because Mr. Stechebar’s opportunity for appeal was defeated by an erroneous act of
the court, the trial court’s dismissal of his writ of certiorari and supersedeas is reversed. This
case is remanded to the trial court for further proceedings in accordance with the writ of
certiorari and review of substantive issues. Costs on appeal are taxed to the appellee, Deere
and Company.




                                                     ___________________________________
                                                     JOHN W. McCLARTY, JUDGE

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