                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    June 21, 2016 Session

                MATTHEW JORDAN, SR. v. CITY OF MEMPHIS

                 Appeal from the Chancery Court for Shelby County
                 No. CH062107     Kenny W. Armstrong, Chancellor
                      ___________________________________

                  No. W2015-01994-COA-R3-CV – Filed July 27, 2016
                       ___________________________________


At its scheduled meeting, the City of Memphis Pension Board denied by voice vote a
Memphis police officer‟s request for benefits. At some point in time, which is unclear from
the record, the Board approved minutes from its meeting, which reflected the denial of the
police officer‟s request. The police officer filed a petition for writ of certiorari, seeking
judicial review of the Board‟s decision. The police officer supported his petition with an
oath but failed to include a recitation indicating that the petition was his first application for
the writ. The City of Memphis moved to dismiss the petition for lack of subject matter
jurisdiction on the basis of the missing recitation. The trial court granted the motion. On
appeal, the police officer argues that the missing recitation did not deprive the trial court of
subject matter jurisdiction. In addition to the missing recitation, the City argues that the trial
court also lacked subject matter jurisdiction because the petition was not filed within sixty
days from the Board‟s decision on the request for benefits. We vacate the judgment of
dismissal and remand for further proceedings.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J.,W.S., and DAVID R. FARMER, SP. J., joined.

John R. Johnson III, Memphis, Tennessee, for the appellant, Matthew Jordan, Sr.

Andre B. Mathis, Memphis, Tennessee, for the appellee, City of Memphis.
                                   MEMORANDUM OPINION1

       On February 22, 2006, Mathew Jordan, Sr. filed an application for line-of-duty
disability retirement benefits with the City of Memphis Pension Board. The Board conducted
a hearing on the application on July 27, 2006, at which Mr. Jordan appeared along with a
representative of the Memphis Police Association. At the hearing, the Board voted
unanimously to deny Mr. Jordan benefits.

       On October 27, 2006, Mr. Jordan filed a petition for writ of certiorari with the
Chancery Court for Shelby County, Tennessee, seeking review of the Board‟s decision.
Mr. Jordan supported his petition with an oath sworn to before a notary public. However, the
petition did not state it was “the first application for the writ.”

       As required by the writ issued by the court, the Board filed the administrative record.
The administrative record did not include an order or judgment of the Board denying
Mr. Jordan‟s application. Instead, the record included “Minutes of the Retirement and
Pension Board System” for its Thursday, July 27, 2006 meeting. With respect to
Mr. Jordan‟s application, the minutes provided as follows:




The acting chairman and acting secretary of the Board and the assistant city attorney each
signed the minutes. Although reflecting that they were of the July 27, 2006 meeting, the
minutes were otherwise undated. The record did not indicate when the minutes were
approved by the Board.

       For reasons not revealed by the record, the City of Memphis did not file an answer to
the petition until June 15, 2011. Over two months later, the City filed a motion to dismiss.

       1
           The rules of our Court provide as follows:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
       modify the actions of the trial court by memorandum opinion when a formal opinion would
       have no precedential value. When a case is decided by memorandum opinion it shall be
       designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or
       relied on for any reason in any unrelated case.

Tenn. Ct. App. R. 10.

                                                        2
The City, noting that Mr. Jordan “failed to state in his Petition that this was his first
application for the writ as required by Tenn. Code Ann. § 27-8-106,”2 requested dismissal for
lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be
granted.

       Again for reasons not revealed by the record, Mr. Jordan did not file a response to the
motion to dismiss until April 25, 2014. That same day, Mr. Jordan also filed a motion to
amend his petition to add the omitted recitation that this was “the first application for the
writ.”

       On May 23, 2014, the trial court entered an order dismissing the petition for lack of
subject matter jurisdiction, citing the missing recitation. The court also concluded it lacked
subject matter jurisdiction to consider Mr. Jordan‟s motion to amend his petition to cure any
defects.

       Mr. Jordan appeals, arguing, among other things, that the statutory requirement
requiring the petition to recite it was “the first application for the writ” was not jurisdictional.
The City argues that the requirement was jurisdictional. In addition, for the first time, the
City claims that the petition was untimely.

                                                  DISCUSSION

       Without subject matter jurisdiction a court lacks the “power to adjudicate a particular
type of controversy,” and any resulting order is void. Dishmon v. Shelby State Cmty. Coll.,
15 S.W.3d 477, 480 (Tenn. Ct. App. 1999). “The lack of subject matter jurisdiction is so
fundamental that it requires dismissal whenever it is raised and demonstrated.” Id. “Thus,
when an appellate court determines that a trial court lacked subject matter jurisdiction, it
must vacate the judgment and dismiss the case without reaching the merits of the appeal.”
First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135, 141 (Tenn. Ct. App.
2001). Because “a determination of whether subject matter jurisdiction exists is a question of
law, our standard of review is de novo, without a presumption of correctness.” Northland
Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

       The trial court dismissed the case based on lack of subject matter jurisdiction due to
Mr. Jordan‟s failure to comply with the recitation requirement found in Tennessee Code
Annotated § 27-8-106. The City additionally asserts that the trial court also lacked subject
matter jurisdiction because the petition was not timely filed. See Blair v. Tenn. Bd. of Prob.
& Parole, 246 S.W.3d 38, 40-41 (Tenn. Ct. App. 2007). In this instance and based on Talley

        2
           The statute provides as follows: “The petition for certiorari may be sworn to before the clerk of the
circuit court, the judge, any judge of the court of general sessions, or a notary public, and shall state that it is
the first application for the writ.” Tenn. Code Ann. § 27-8-106 (2000).
                                                         3
v. Board of Professional Responsibility, 358 S.W.3d 185 (Tenn. 2011), we conclude that the
timeliness of the petition should be addressed before reaching the other issues raised by the
parties. If the petition was untimely, we lack subject matter jurisdiction to consider whether
the recitation requirement of Tennessee Code Annotated § 27-8-106 is jurisdictional. See
Blair, 246 S.W.3d at 40-41.

       Perhaps unsurprisingly, the parties cannot agree3 on when the City of Memphis
Pension Board entered its decision denying Mr. Jordan‟s application for line-of-duty
disability retirement benefits. Mr. Jordan argues that the decision was entered when the
minutes from the July 27, 2006 Board meeting were approved. The City, on the other hand,
argues that the decision was entered at the July 27, 2006 Board meeting.

          Our courts have recognized that there is a distinction between the rendition of a
judgment and the entry of a judgment. Jackson v. Jarratt, 52 S.W.2d 137, 138 (Tenn. 1932).
 “„Rendered‟ means expressed or announced in a conclusive manner and with decisive effect
. . . .” Id. “The „entry‟ of judgment is the ministerial act by which enduring evidence of the
judicial act of rendition of judgment is afforded.” Carter v. Bd. of Zoning Appeals, 377
S.W.2d 914, 916 (Tenn. 1964). In the context of Tennessee Code Annotated § 27-9-102, we
have held “that something more than simply a vote taking place is required before a judgment
or order will be considered as having been entered.” Grigsby v. City of Plainview, 194
S.W.3d 408, 413 (Tenn. Ct. App. 2005).

       In Grigsby v. City of Plainview, we confronted a situation similar to the one presented
to us here. Id. at 408-09. A city beer board voted to revoke a beer permit on February 20,
2003, and disgruntled parties filed a petition for writ of certiorari on July 3, 2003. Id. at 410.
The city filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the
petition was time barred. Id. The disgruntled parties responded that the time period never
began to run because the beer board never entered an order or judgment. Id. The trial court
agreed with the city and dismissed the case. Id.

       On appeal, we vacated the decision of the trial court because we were unable to
determine from the record when the beer board‟s decision was entered and, therefore, when
the time for filing began to run. Id. at 414.

        [A]ll we are able to glean from the sparse record is that the Board voted to

        3
           The parties also cannot agree on whether Mr. Jordan‟s petition for writ of certiorari was in fact a
petition for writ of certiorari or actually a petition for review under the Uniform Administrative Procedures
Act. See Tenn. Code Ann. § 27-9-114 (Supp. 2015). In either event, however, Mr. Jordan had sixty days from
the entry of the decision to file his petition. See id. §§ 27-9-102 (2000), 27-9-114(a)(1), 4-5-322(b)(1)(A)
(2015); see also Davis v. Tenn. Dep’t of Emp’t Sec., 23 S.W.3d 304, 309 (Tenn. Ct. App. 1999) (“[T]he time
for seeking judicial review of an agency‟s decision runs from the date of the entry of the agency‟s final order
. . . .”).
                                                      4
       revoke Evans‟ beer permit on February 20, 2003. While this certainly would
       qualify as the “rendition” of the Board‟s judgment, it falls short of qualifying
       as the “entry” of that judgment. The record contains no proof establishing
       whether anything else happened on February 20th which would be sufficient to
       properly characterize the Board‟s judgment as having been entered on that day.
       There is no “something more” in addition to the vote of the Board and,
       therefore, no “enduring evidence” of the Board‟s rendition of judgment.
       Accordingly, we vacate the judgment of the Trial Court which held that the
       Board‟s judgment was entered on February 20, 2003, and that Plaintiffs‟
       complaint was time barred.

Id. at 413-14 (citations omitted). We did not hold that the filing of the minutes necessarily
constituted the entry of the order or decision, but we did require “something more” than just a
vote. Id. at 414.

       [T]he record contains no proof showing when the minutes were filed. Without
       this critical fact, and even though the filing of the minutes would be sufficient
       to trigger the sixty day period in this case, we cannot determine whether
       Plaintiffs‟ complaint was filed timely because we have no way of knowing
       when the sixty day period started to run. We likewise do not know whether
       anything occurred after the vote to revoke Evans‟ permit but before the
       minutes were filed, if and when they were, which could properly be considered
       as the entry of the Board‟s judgment . . . .

Id.

       Although the Pension Board‟s vote to deny Mr. Jordan‟s application would qualify as
the “rendition” of the Board‟s judgment, it also falls short of qualifying as the “entry” of that
judgment. Approval of the minutes or some other act may have constituted entry of the
judgment, but we cannot make that determination from the sparse record before us.
Accordingly, we follow the same approach we took in Grigsby v. City of Plainview.

                                         CONCLUSION

         We vacate the judgment of dismissal and remand this case to the trial court to
determine when and if the City of Memphis Pension Board‟s judgment ever was entered by
the filing or approval of minutes or some other act other than just the Pension Board‟s vote,
and if so, whether Mr. Jordan‟s petition was filed within sixty days from that date.


                                                    _________________________________
                                                    W. NEAL MCBRAYER, JUDGE
                                               5
